Duty and Standard of Care and Liability of Health Care Professionals

8/7/2019 Duty and Standard of Care and Liability of Health Care Professionals

http://slidepdf.com/reader/full/duty-and-standard-of-care-and-liability-of-health-care-professionals 1/20

Ajit Singh Parihar 565

Dheeraj Aseri 569

Sanket Gandhi 473



� The service which medical professionals render to us isthe noblest. Aryans embodied the rule that, Vidyonarayano harihi (which means doctors are equivalent toLord Vishnu).

� Healthcare in India features a universal health caresystem run by the constituent states and territories ofIndia.

� The National Health Policy was endorsed by theParliament of India in 1983 and updated in 2002. Theinterpretation of ´standard of careµ in research hasgenerated a lot of controversy among researchers

� The health service has been under the purview of theConsumer Protection Act, 1986 and subsequently thecommercialization of the health sector has had adverseeffects on doctor and patient relationship.



� It's a common observation that medicalpractitioners, hospitals are being attacked byfamily members of patient for alleged medical

negligence. The doctor- patient relationship isone of the most unique and privileged basedon mutual trust and faith. But presently there isa great decline in the doctor-patientrelationship. The reason may becommunication gap between them,commercialization of health services, raisingexpectations from doctors or increasedconsumer awareness.



� Medical profession is governed by code of medical ethicsand etiquettes laid down by Medical Council of India.Although they are for internal self-regulations of the

profession, it is an obligation on the part of theprofessionals to fulfil certain rights, expectations of thepatients. But there has been fast spreading misconductamongst the medical professionals .The unethical practicehas gone to a level where the basic purpose of medicalprofession that is service to humanity fails. Few unethicalpractices like fee sharing, or cut practice, particularlyprescribing a company·s medicine, selling of body partsetc. for personal monitory gains are openly discussedamong them but they never come up to the surface due tolack of concrete proof. To err is human nature but

mistakes of medical professional which may result indeath of a person or permanent impairment can beparticularly costly but the law does not aim to punishdoctors for all their mistakes, but only to those which arecommitted out of negligence. Mistakes occur but whichoccurs from carelessness and negligence cannot be let off.



� Despite variations in local legislation and administration ofpatients' rights, it is important in the case of genomics, aswith any other medical intervention that patients receivetreatment consistent with the dignity and respect they areowed as human beings. This means providing, at minimum,

equitable access to quality medical care, ensuring patients·privacy and the confidentiality of their medical information,informing patients and obtaining their consent beforeemploying a medical intervention, and providing a safeclinical environment. Formalized in 1948, the UniversalDeclaration of Human Rights recognizes ´the inherent

dignityµ and the ´equal and unalienable rights of allmembers of the human familyµ. It is on the basis of thisconcept of the person, and the fundamental dignity andequality of all human beings, that the notion of patientrights was developed.



� The concept of "doctor-patient confidentiality" derives fromEnglish Common Law and is codified in many states'statutes. It is based on ethics, not law, and goes at least as farback as the Roman Hippocratic Oath taken byphysicians. The Oath of Hippocrates, traditionally sworn to

by newly licensed physicians, includes the promise that"Whatever, in connection with my professional service, ornot in connection with it, I see or hear, in the life of men,which ought not to be spoken of abroad, I will not divulge,as reckoning that all such should be kept secret." Doctor-patient confidentiality stems from the special relationship

created when a prospective patient seeks the advice, care,and/or treatment of a physician. It is based upon thegeneral principle that individuals seeking medical help oradvice should not be hindered or inhibited by fear that theirmedical concerns or conditions will be disclosed to others.



� Stringently, the duties of care for medicalprofessionals are:²

� � Deciding whether to undertake the case,

� � What treatment to give, and

� � Duty of care in administration of thattreatment.

Nevertheless, a simple lack of care, an error of judgment or an accident is not a proof ofnegligence on the part of medical professional.



� In case of Bolam v. Friern hospital management committee, thetest for establishing medical negligence was set. ´The doctoris required to exercise the ordinary skill of a competentdoctor in his field. He must exercise this skill in accordancewith a reasonable body of medical opinion skilled in the

area of medicine.µ� The court noticed that in the case of doctors being subjected

to criminal prosecution are on the rise; such prosecutions arefiled by private complainants or by the police on an FIRlodged and cognizance taken. The criminal process onceinitiated, subjects to the medical professional to serious

embarrassment and harassment. He has to seek bail toescape arrest, which may or may not be granted to him. Atthe end he may be exonerated by acquittal or discharge, butthe loss he has suffered in his reputation cannot becompensated by any standard.



� The judgment given by the HonourableSupreme Court of India, consisting three judges bench, in October 2005 in J acob Mathew

case, ruled that doctors should not be heldcriminally responsible unless there is primafacie evidence before the court in the form of acredible opinion from another competent

doctor, preferably a Government doctor in thesame field of medicine, supporting the chargesof rash and negligent act.



� The Supreme Court in the case of J acob Mathew v.State of Punjab held that extreme care and cautionshould be exercised while initiating criminalproceedings against medical practitioners for

alleged medical negligence and drew up elaboratesafeguards for them, including avoiding arrestunless it was inevitable. Drawing elaborately fromestablished provisions of law and practice, theBench ruled that this was necessary for, the service

which medical profession renders to human beingis probably the noblest of all and hence there is aneed for protecting doctors from unjustprosecutions.



� In the Court's words, the complexities of thehuman body and medical science were too easilyunderstood. For a medical accident of failure, the

responsibility may be with the medical practitionerand equally it may not. Ideals about the medicalpractice, according to the Court, may be fardifferent from the realities. The Court agreed with

the views of noted men of medicine that the effectof encouraging frivolous cases against doctors willhave a distorting effect on doctor-patient relationsand will not benefit the patient in the long run.



� In a recent Supreme Court judgment in the case ofK usum Sharma & Ors. v. Batra Hospital and MedicalResearch Centre & Ors., the court said that themedicine is not an exact science involving

precision and every surgical operation involvesuncalculated risks and merely because acomplication had ensued, it does not mean that thehospital or the doctor was guilty of negligence. Amedical practitioner is not expected to achieve

success in every case that he treats. The duty of theDoctor like that of other professional men is toexercise reasonable skill and care. The test is thestandard of the ordinary skilled man.



� The court also referred to Lord JusticeDenning¶s observation in the landmark case ofRoe and Woolley v. Minister of Health in which

he said that. Medical science has conferredgreat benefits on mankind but these benefitsare attended by unavoidable risks. Everysurgical operation is attended by risks. Wecannot take the benefits without taking therisks. Every advance in technique is alsoattended by risks. Doctors, like the rest of us,have to learn by experience; and experienceoften teaches in a hard way."



� Also In a celebrated and often cited judgment inBolam v. Friern Hospital Management Committee,Lord Justice McNair observed that a doctor is notnegligent, if he is acting in accordance with apractice accepted as proper by a reasonable bodyof medical men skilled in that particular art,merely because there is a body of such opinion thattakes a contrary view. The direction that, where

there are two different schools of medical practice,both having recognition among practitioners, it isnot negligent for a practitioner to follow one inpreference to the other.



� Similarly in J acob Mathew case, the court said that incomplicated emergency cases, doctors have to take chanceseven if the rate of survival is very low. Higher the acutenessin emergency and higher the complication, more are thechances of error of judgment by the professionals. The court

went on to say that the health care professional should beheld liable if his act is negligent. The job of the professionalis to make life safer. But, at the same time courts have to beextremely careful to ensure that unnecessarily professionalsare not harassed, else they will not be able to carry out theirprofessional duties without fear.

� The court in this case also analysed section 304A of IndianPenal Code. The court said that it was a hanging sword onthe doctors working both in Govt. Hospitals as well as theprivate sector.





� At times, the professional is confronted withmaking a choice between the devil and thedeep sea and he has to choose the lesser evil.

The medical professional is often called uponto adopt a procedure which involves higherelement of risk, but which he honestly believesas providing greater chances of success for thepatient rather than a procedure involving lesserrisk but higher chances of failure. Which courseis more appropriate to follow, would dependon the facts and circumstances of a given case.



� The usual practice prevalent nowadays is to obtain the consent of thepatient or of the person in-charge of the patient if the patient is not be in aposition to give consent before adopting a given procedure. So long as itcan be found that the procedure which was in fact adopted was onewhich was acceptable to medical science as on that date, the medicalpractitioner cannot be held negligent merely because he chose to follow

one procedure and not another and the result was a failure. A doctorfaced with an emergency ordinarily tries his best to redeem the patientout of his suffering. He does not gain anything by acting with negligenceor by omitting to do an act. Obviously, therefore, it will be for thecomplainant to clearly make out a case of negligence before a medicalpractitioner is charged with or proceeded against criminally. A surgeonwith shaky hands under fear of legal action cannot perform a successfuloperation and a quivering physician cannot administer the end-dose of

medicine to his patient. The Apex Court while dealing with 'criminalmedical negligence' observed that Indiscriminate prosecution of medicalprofessionals for criminal negligence is counter-productive and does noservice or good to society.



� Discretion being the better part of valour, amedical professional would feel better advisedto leave a terminal patient to his own fate in the

case of emergency where the chance of successmay be 10% (or so), rather than taking the riskof making a last ditch effort towards saving thesubject and facing a criminal prosecution if his

effort fails. Such timidity forced upon a doctorwould be a disservice to society."



� The doctor-patient relationship, based on earned trust andresponsibility, is worthy of nurture in a caring healthcare systemand should be considered at least as important as anytechnological advancements. Is there a position of stability thatcan ensure patient rights while encouraging

�

Medical scientific advancement and care and fostering the doctor-patient relationship, These two apparently stark choices arecomprised of difficult and problematic issues requiring carefulconsideration and prudent policy decisions.

� In the light of Judgment pronounced by the honourable SupremeCourt in various above mentioned cases it can be concluded thatthe Supreme Court provides necessary protection, not the license

to kill. The cases very clearly deal with the pros and cons of theconcept of Medical Negligence, in both civil and criminal aspects.Definitely these recent landmark judgments will bringharmonious relationship between doctor and patients and falsefrivolous cases would be lessened as a consequence there off.

Documents

Duty and Standard of Care and Liability of Health Care Professionals