MEDICO LEGAL ISSUES

Dr must do his duty in good faith,for benefit of the patient & with consent.

Good Faith refers to act with due competence,due care & due caution.

Competence The act done with possession of knowledge & skill for the intervention being done.

Due Care Timely fulfillment of medical needs of the person.

Caution Anything done without caution will be rash. To anticipate, prevent adverse consequence & deal with adverse consequences.

Benefit It may be Physical,Physiological or functional

CONSENT Consent is defined as agreement in

sentiment,opinion,a course of action etc. Law recognizes consent as good defence for

causing injury which is based on the percept that every individual knows what is best for oneself.

Law cannot provide immunity against all types of criminal offences.

Offences can be there completely independent of consent.

Consent can be either implied or expressed which can again be oral or written.

CONSENT Consent should be patient’s own & he should be

legally & mentally competent. No one-else is competent.

Free consent:- Means consent must be free from force,coercion,fraud, & inducement.

Informed consent:-It must state who is consenting to whom & for what purpose & should be given having understood nature & consequences of the act.It could be orally expressed One has to be told about possible basic risks, likely benefits & alternatives available, irrespective of his education standard,in the language the patient understand.

Consent must be recorded.

CONSENT Implied Consent:- Consent need not be

expressed or articulated. It includes consent by acts,conduct &

consent presumed but never given. It is permitted in special circumstances

like when patient is not competent by age, physical or mental condition, when guardian is not available& patient’s condition is life threatening( To prevent death or grievous hurt.

Surrogate consent :-Any body who is in valid custody of the individual is permitted to give consent

CRIMINAL CULPABILITY & CONSENT Sec. 87IPC states that nothing is an offence

if done, not intending or knowing by the doer that it would cause death, or grievous hurt, by the harm that may cause, if this is done with the consent of the person who got injured,the later being above 18yrs.,whether expressed or implied to suffer that harm.

Age of consent especially to risk harm,is 18 yrs which is the age of majority under Indian majority Act 1875.

Consent for medical examination can be given by any person above 12 Yrs.

Sec88IPC- Nothing which is not intended to cause death is an offence by reason of any harm it may cause-a) or intended by the doer to cause

b)or known by the doer to be likely to cause to any person for whose benefit it is done in good faith

c) and who has given either implied or expressed consent to suffer that harm or take risk of that harm.

Sec.89IPC states that nothing ,which is done in good faith for benefit of a child under 12 yrs.or insane shall be an offence if with consent either express or implied of guardian or other person having lawful charge of that person ,is an offence.

Sec90 of IPC clarifies consent given under fear, misconception,or by an insane person or a child below 12 yrs is no consent.

Sec91 clarifies that any act which is an offence by itself, independent of harm it may cause does not have any protection u/s 87,88&89IPC because consent was given by the sufferer.

Sec.92 covers acts done in good faith for the benefit of a person,without his consent not being an offence,if;-it was impossible for the person to show his consent,or-he was incapable of giving consent,or-no guardian or other person having lawful charge of him was available in time to consent.

Criminal culpability: Sec82 of IPC gives total immunity from criminal culpability to a child below 7yrs. While under section 83, a child between 7 & 12 yrs has a limited culpability.

MEDICAL NEGLIGENCE Failure to follow the medical norms is

negligence. Norms are case specific,situation specific

& context specific. To prove negligence four (4D’s)- a) Duty to care b) Deficiency in duty c) Damage occurred to patient d) Damage should be direct

consequence of the act

DEATH CERTIFICATE It should not be issued in following

circumstances:-i. when cause is uncertainii. when foul play is suspectediii. un-natural deaths.

Defence of Doctor in Tort cases

The concept of medical negligence in causation of injury has been 4000yrs old.First recorded malpractice suit in English law was in 1615 Evered VsHopkins

In tort cases defence of Drs:-No contract between Dr & patient,Contributory negligence on the part of patient( but not considered in criminal negligence charges u/s338/304 but is a valid defence for tort cases),No injury resulting from that care as per the knowledge & experience available till date, no demonstrable link between the standard of care & the injury, informed consent when complications were explained,no guarantee for cure.

Vicarious responsibility:-It is the responsibility fixed on another in place of the original person. A medical offr can be held responsible for any charge of negligence for his subordinates,unless other person is qualified or experience enough to do a task.A senior offr in Admn cannot be held responsible for tasks of his junior officer,independently competent to do so,& recruited/selected for undertaking such tasks unless repeatedly brought to notice of superior then senior may be held vicariously responsible for his junior’s acts of negligence.

Respondens Superiors:-This is the defence resident Drs/interns.

Novus Actus Interveniens:- Act of God/un-foreseen/unreported turn of events. Since the event was not expected to happen hence one could not take adequate preventive measures.

Therapeutic Misadventure:- the outcome of any medical Mgt. cannot be guaranteed, he cannot be held responsible as medicine is not an exact computable science.

PRIVILEGED COMMUNICATION Ordinarily any communication

between the patient & his Dr. is governed by the Geneva code of ethics & the Hippocratic oath as not to divulged to any other person including the person’s own spouse or parents without his/her consent; unless the interests of community as whole or in major part at stake.