Definition

• Forensic medicine: It is the application of principle and knowledge of medical sciences to legal purposes and legal proceedings so as to aid in the administration of justice.

• Medical jurisprudence: It is the application of knowledge of the law in relation to the practice of medicine.

• Medical etiquette: These are the conventional laws and customs of courtesy which are followed between members of the same profession.

  • A doctor should behave with his colleagues, as he would like to have them behave with him.

• Medical ethics: It is concerned with moral principles for the members of the medical profession in their dealings with each other, their patients, and the State.

• Forensic science: Refers to a group of scientific disciplines that are concerned with the application of their particular scientific area of expertise to law enforcement, criminal, civil, legal, and judicial matters. Forensic scientists examine objects, substances, chemicals, tissue traces, or impressions left at the crime scene.

Codes of Medical Ethics

• Code of Medical Ethics: At the time of registration, all the doctors are self-warned about certain unethical practices and disciplinary action by the SMC.

• Hippocratic Oath: It is traditionally taken by physicians, in which certain ethical guidelines are laid out. Several parts of the Oath have been removed or re-worded over the years in various countries, schools and societies.

• Declaration of Geneva: It was intended as a revision of the Hippocrates Oath to a formulation of that oaths’ moral truth that could be comprehended and acknowledged modernly.

• Declaration of Tokyo: This was adopted in 1975 during the assembly of the WMA. It refers to the guidelines for doctors concerning torture, degradation, or cruel treatment of prisoners.

• Declaration of Helsinki: It refers to the ethical principles for medical research involving human subjects, including research on identifiable human material and data.

• Declaration of Oslo: It was a statement by the WMA in 1970 on therapeutic abortion and was amended in 1983 and 2006.

• Declaration of Malta: The principle of beneficence urges physicians to resuscitate them, but respect for individual autonomy restrains physicians from intervening when a valid and informed refusal has been made.

• Declaration of Lisbon: The declaration represents some of the principal rights of the patient that the medical profession endorses and promotes.

• Declaration of Ottawa: Physicians along with parents, and world leaders to advocate for healthy children.

Privileged Communication

• Privileged Communication: It is a statement, made bonafide upon any subject matter by a doctor to the concerned authority having corresponding interest, due to his legal, social or moral duty to protect the interests of the community or of the state

  • It is a confidential information exchange between two people, and it is an exception to the rule of professional secrecy.

  • It has to be given to the person who is responsible for it in order to be privileged.

• Civic benefit: If there is a potential threat of ‘grave harm’ to the safety or health of the patient and the public, the doctor must decide whether to inform the authority about the condition.

• Notifiable clauses: Doctors must report births, deaths, stillbirths, infectious diseases, therapeutic abortions, drug addictions, epidemics, and food poisoning to public health authorities.

• Suspected crime: If the physician learns of a crime, such as assault, terrorist activitiy, traffic offence or homicidal poisoning by treating the victim or assailant, he is bound to report it to the nearest Magistrate or police officer.

• Patient’s own interest: Doctor may disclose patient’s condition to his relatives so that he may be properly treated.

• Self-interest: In case of civil and criminal suits by the patient against the physician, evidence about patient’s condition may be given.

• Negligence suits: When doctor is employed by opposite party to examine a patient who has filed a suit for negligence, the information thus acquired is not a professional secret.

• Court ordered examination: If a court orders a physical or mental examination to report back to the court, the person should be informed that the results are not confidential.

• Court of law: Doctor cannot claim professional secrecy concerning the facts about the illness of his patient in a court of law.

Medical Malpractice

• Medical Malpractice: Covers all failures in the conduct of doctors, where it impinges upon their professional skills, ability and relationships.

• Professional misconduct: Where the personal, professional behavior falls below that which is expected of a doctor.

• Medical negligence: Where the standard of medical care given to a patient is considered to be inadequate.

Unethical Acts

• Advertising: Act of misrepresentation of a product/service in some way or the use of subliminal messaging to fit a hidden agenda.

• Patent and copyrights: He may patent surgical instruments, appliances, procedures and medicine.

• He should not run an open shop for dispensing of drugs and appliances prescribed by other physicians.

• Rebates and commission: He should not give or receive any gift or commission in consideration of referring, recommending or procuring of patient for medical, surgical or other treatment, or for getting specimen or material for diagnostic purposes.

• Secret remedies: He should not prescribe or dispense secret remedial agents of which he does not know the composition.

• Human rights: He should not aid or abet torture or be a party to either infliction of psychological or physical trauma.

• He should not practice euthanasia.

• Pharmaceutical and allied health sector industry: A medical practitioner should not receive any gift, cash or monetary grants, travel facility or accept any hospitality

Professional Misconduct

• Professional Misconduct: Any doctor behavior deemed disgraceful or dishonorable by competent professionals. It's professional abuse.

• Acts of Commission or Omission

  • If he does not maintain the medical records of his indoor patients.

  • If he does not display the registration number.

  • Physician posted in rural area is found absent on more than two occasions.

  • Physician posted in a medical college as teaching faculty or otherwise is found absent on more than two occasions.

  • Providing falsified and misleading information.

• Physicians should not:

  • Commit adultery or misbehave with a patient.

  • Be drunk and disorderly so as to interfere with the proper practice of medicine.

  • Be convicted by a court of law for offenses involving moral turpitude/criminal acts.

  • Do sex determination tests with the intent to terminate the life of a female fetus.

  • Issue false, misleading, or improper certificates for subsequent use in the courts or for administrative purposes.

  • Violate the provisions of Drugs and Cosmetics Act.

  • Supply or sell addiction forming drugs to a patient other than medical grounds.

  • Give cover

  • Perform an illegal abortion/operation

  • Issue certificates of efficiency in modern medicine

  • Disclose professional secrets.

  • Refuse on religious grounds sterilization, birth control, circumcision and medical termination of pregnancy when it is indicated.

  • Publish photographs/case reports of his patients without their consent

  • Use touts or agents to entice patients.

  • Claim to be specialist when he has no special qualification in that branch.

  • Undertake in-vitro fertilization or artificial insemination

  • Do clinical drug trials or other research involving patients or volunteers not abiding by the guidelines of ICMR.

  • Advertise

Red Cross Emblem

• Red Cross: It is an emblem which is used only by those belonging to the Red Cross Movement and Army Medical Services involved in humanitarian work, mainly at times of armed conflicts and natural disasters, and it is not an emblem of medical professionals.

Privileges and Rights of Patients

• Access to health care facilities and emergency services regardless of age, sex, religion, social or economic status.

• To choose his own doctor freely.

• To receive continuous care for his illness from a doctor/institution.

• To be treated in comfort during illness and follow-up.

• Right to complain and redressal of grievances.

• All information about his illness should be kept confidential.

• To be treated with care, compassion, and respect without any discrimination.

• Information: Should receive full information about his diagnosis, investigations, treatment plans, alternative therapy, procedures, diagnosis, complications, and side-effects.

• To be treated in privacy.

• Can refuse any specific or all measures.

• Can have access to his records and demand summary or other details.

Types of Physician-Patient Relationship

• Therapeutic relationship: A doctor is free to accept or refuse to treat a patient, subject to constraint of his work, except in emergencies.

• Formal relationship: It pertains to the situation where the third party has referred the person/patient for impartial medical examination.

Professional Negligence

• Professional Negligence: Failure to use reasonable care and skill of an ordinary prudent medical practitioner in the circumstances, resulting in patient harm or death.

• Act of Omission: Not doing something that a reasonable man, under the circumstances would do.

• Act of Commission: Doing something which a reasonable prudent man under the circumstances would not do

• Tort: A wrong or harm other than breach of contract; breach of a noncontractual duty towards another person which caused harm or loss. The same action may be both a tort, for which a person may seek compensation, and a crime, punishable by the state.

• Degree of care: The level of caution, prudence or forethought legally required to avoid causing harm or loss to another person. In determining liability, a person may be required to exercise degrees of care variously described as ‘ordinary’, ‘due’, ‘reasonable’, ‘great’, or ‘utmost’.

• Gross negligence: Negligence beyond the ordinary; a reckless or wanton disregard of the duty of care toward others.

• Liability: An actual or potential legal obligation, duty or responsibility to another person; the obligation to compensate, in whole or in part, a person harmed by one’s acts or omissions.

• Chain of causation: In claims in tort, or prosecutions in criminal law, the causal relationship between the defendant’s wrong doing and the victim’s loss or injury should be obvious for a successful outcome.

• Damages: Money awarded in a suit or legal settlement as compensation for an injury or loss caused by a wrongful or negligent act or a breach of contract.

Medical Negligence

• General Errors

  • Inadequate medical records and failure to examine the patient himself/herself.

  • Failure to attend a patient with consequent damage.

  • Failure to admit to hospital when necessary.

  • Failure to obtain informed consent for any procedure.

  • Making a wrong diagnosis in the absence of skill and knowledge.

  • Administration of incorrect type/quantity of drugs, especially by injection.

  • Failure to immunize and perform sensitivity tests.

  • Failure to act on radiological or laboratory reports.

• Medicine

  • Failure to diagnose myocardial infarcts and other medical conditions.

  • Failure to refer a patient to hospital or for specialist opinion.

  • Toxic results of drug administration.

• Surgery

  • Delayed diagnosis of acute abdominal lesions.

  • Retention of instruments, tubes, towels, sponges and swabs in operation sites.

  • Operating on the wrong patient, wrong side of the body, wrong limb, digit or even organ.

  • Failed vasectomy, without warning of lack of total certainty of consequent sterility.

  • Diathermy burns

• Obstetrics and Gynecology

  • Unwanted pregnancy due to failed tubal ligation.

  • Complications of hysterectomy—ureteric ligation and vesico-vaginal fistulae.

  • Brain damage in the newborn due to hypoxia from prolonged labor.

  • Mismanagement of delivery, especially under the influence of alcohol/drug.

  • Performing abortion without indication

• Orthopedics and Emergency Medicine

  • Missed fractures, especially of the scaphoid, skull, femoral neck and cervical spine.

  • Over-tight or prolonged use of plaster casts resulting in tissue and nerve damage.

  • Undiagnosed intracranial hemorrhage.

  • Missed foreign bodies in eyes and wounds, especially glass.

  • Inadequately treated hand injuries, particularly tendons.

• Anesthesiology

  • Hypoxia resulting in brain damage.

  • Neurological damage from spinal or epidural injections.

  • Peripheral nerve damage from splinting during infusion.

  • Incompatible blood transfusion.

  • Incorrect or excessive use of anesthetic agents.

• Dentistry

  • Nerve injuries affecting a patient’s ability to taste or causing permanent numbness in the tongue.

  • Failures to take a patient’s relevant medical history.

  • Failure to detect oral cancer, periodontal disease or other diseases.

  • Unnecessary extraction of multiple teeth.

  • Extraction of wrong teeth.

  • Complications arising from negligently completed crowns and bridges.

  • Complications from anesthesia.

Preventing Medical Litigation

• Awareness of potential areas of litigation and medico-legal problems

• Good ‘doctor-patient’ relationship

• Appropriate training and maintenance of authorized protocol

• Maintaining standard medical service

• Proper counseling and informed consent

• Proper investigation

• Adequate supervision and timely referral

• Surgical intervention

• Meticulous record keeping

• Morbidity and mortality audits

• Medical indemnity insurance

• Medical defense procedure

Defenses Against Negligence

• No duty owed to patient, i.e. no doctor-patient relationship was established.

• Duty discharged according to prevailing standards.

• Informed consent for the act

• Patient was guilty of contributory negligence.

• Therapeutic misadventure.

• Medical maloccurrence.

• The court has held that the error of judgment is not negligence

• Mistake of fact: A situation where a person not intending to do unlawful act, does so because of wrong conclusion or understanding of fact.

• Res judicata: Means ‘the things have been decided’

• Volenti non fit injuria: A defense to an action in negligence

Doctrines

• Doctrine of Res ipsa loquitur: Professional negligence of a doctor must be proved in the court by expert evidence of another physician.

  • The patient need not prove negligence in case where the rule of res ipsa loquitur applies.

  • Applies to both civil and criminal negligence.

  • Error is so self-evident that the patient’s lawyer need not prove the doctor’s guilt with medical evidence.

  • The doctor has to prove his innocence.

• Doctrine of Common Knowledge: It assumes that negligence in the case is a common-sense act, not a medical specialty.

  • Experts may not provide evidence regarding matters of ‘common knowledge’.

  • It is a variant of res ipsa loquitur

  • Here, the patient must prove the act of commission or omission, but he need not produce evidence to establish the standard of care.

• Doctrine of Avoidable Consequence Rule: The unreasonable conduct by the plaintiff after the defendant has wronged the plaintiff. The amount of recovery is reduced.

  • Once the plaintiff (patient) has been injured, he must take reasonable steps to lessen the consequences of his original injury.

  • A defendant (accused) will not be liable of any further injury that the plaintiff could have reasonably avoided.

  • Contributory negligence—unreasonable plaintiff behavior—is different. It occurs before or simultaneously with the wrong committed by the defendant

  • Eggshell skull rule: A legal doctrine used in both civil and criminal law that holds an individual liable for all consequences resulting from their activities leading to an injury to another person, even if the victim suffers unusual damages due to a pre-existing vulnerability or medical condition.

Novus Actus Interveniens

• If a doctor is negligent, which results in deviation from the logical sequence of events, then the responsibility for the subsequent disability or death may pass from original incident to the negligent act of the doctor.

• Novus actus: Something which `breaks the chain of causation’.

• For a plea of novus actus interveniens, an element of negligence is essential.

• It usually applies to cases of accidents and assaults, like leaving a swab or instrument in the abdomen after laparotomy.

• Plea is rarely accepted by the courts

Contributory Negligence

• Contributory Negligence: The patient's or attendant's unreasonable conduct or lack of ordinary care, combined with the doctor's negligence, caused the injury complained of.

• Affirmative Defence: A good defense.

• Doctor has to prove patient’s negligence. But, doctor is expected to foresee that the patient may harm himself and to warn accordingly. „ For example, patient did not give p

• Composite negligence: Injury is caused to the person without any negligence on his part, but as a result of the combined effect of the negligence of some other persons.

Corporate Negligence

• Corporate negligence: Hospital administration/management's failure to follow the standard of conduct in providing treatment, accommodation, and facilities to fulfill the institution's mission.

• It occurs when the hospital:

  • Provides defective equipment or drugs.

  • Selects or retains incompetent employees including doctors.

  • Fails in some other manner to meet the accepted standard of care, and such failure results in injury to a patient to whom the hospital owes a duty.

Products Liability

• Products Liability: It refers to the physical agent that caused the injury or death of the patient during treatment.

• The plaintiff must prove that:

  • Design, manufacture, assembly, packaging, testing, inspection, warning, and instructions were negligent.

  • Defect was the proximate cause of injury/death.

• The manufacturer must prove a new drug/device/instrument's safety and efficacy.

Medical Maloccurrence

• Medical maloccurrence: A legal term that defines a less-than-ideal outcome that is unrelated to the quality of medical care delivered by the healthcare team.

  • medical and surgical complications that are predictable and unavoidable in appropriate medical care.

  • complications that arise unpredictably and are unavoidable.

  • complications resulting from patient-doctor decisions made with informed consent but later found to be unwise.

• Maloccurrence is often unrelated to the reasonable risks of quality of care that was provided.

• In some cases, in spite of good medical attention and care, an individual fails to respond properly.

Therapeutic Misadventure

• Therapeutic Misadventure: A case in which an individual has been injured or had died due to some unintentional/ inadvertent act by doctor or his agent or hospital.

  • The injury or an adverse event is caused by medical management rather than by an underlying disease.

  • It includes medication errors, medical and surgical errors, surgical complications, iatrogenic or nosocomial infections, or postoperative complications.

• Diagnostic Misadventure: When diagnosis is the only objective at that time,

• Experimental Misadventure: Where patient has agreed to serve as a subject in an experimental study.

Vicarious Liability

• Vicarious Liability: An employer is responsible not only for his own negligent act, but also for the negligent act of his employees by the principle of ‘respondeat superior.

• It also called the ‘Master-Servant Rule’.

• In medical practice, usually, the principal doctor becomes responsible for any negligence of his assistants

• An employee-employer relationship can temporarily link two doctors.

• Partners are liable for each other's negligence, even if they didn't do it.

• The surgeon is liable if a swab, sponge, or instrument is left in the patient.

  • Anesthetists and surgeons are not liable for each other's negligence.

• Borrowed servant doctrine: An employee may serve more than one employer.

• Physicians and surgeons are not liable for competent nurse or other hospital staff negligence unless they directly supervise and control it.

• Hospitals are liable for employee negligence.

• If hospital management carefully selected qualified and experienced senior medical staff, they cannot be held liable for their negligence in patient care.

• Hospital management is liable for resident physicians' and interns' errors.

• The patient sues both the employer and employee because the employee may lack funds to pay the damages. Those at fault and those who controlled the negligence are usually liable.

• To avoid vicarious liability, an employer must show that the employee was not negligent, reasonably careful, or on a "detour," where the employee was acting on his own behalf.

Consent

• Consent: A voluntary agreement, compliance or permission.

• Implied Consent: When the patient presents himself at the doctor’s clinic or outpatient, it is held to imply that he is agreeable to be examined.

• Expressed Consent: Specifically stated by the patient in distinct and explicit language.

  • Oral/verbal consent: Obtained for relatively minor examinations or therapeutic procedures, preferably in presence of a disinterested party.

  • Written consent is to be obtained for:

    • All major diagnostic procedures

    • General anesthesia

    • Operations.

• Substituted consent: If a person in need of treatment is incapable of giving informed consent, consent (proxy consent) must be obtained from next of kin. The order of succession is generally spouse, adult child, parent and sibling.

• Blanket (open) consent: The consent taken at the time of admission, and practiced in most hospitals that cover almost everything a doctor might do to a patient without mentioning anything specific. It is of questionable legal validity.

• Presumed consent: Assumes that an individual agrees in principle to the said procedure; if not, he/she must withdraw his/her consent, i.e. ‘opt out’.

Medical Records

• Medical records: These pertains to documents containing a chronological written account of the patient’s medical history and complaints, physical findings, results of diagnostic tests, medications, therapeutic procedures and day-wise progress notes recorded by a medical practitioner.

• Medical training requires record-keeping for medical science and personal safety.

• It documents the patient's illness, treatment, and response. This record can be used in malpractice, insurance, and personal injury lawsuits. The maxim is "If it is not in the record—it did not occur."

• The hospital owns medical records, but patient data is confidential and theirs.

• The police should not receive the medico-legal case (MLC) hospital record, including X-ray/CT/MRI films.

• The doctor holds the medico-legal report (MLR) and postmortem report (PMR) in fiduciary relationship for the police.

• After the applicant pays the fee, the patient or relative can receive an attested copy of the MLR.

• Doctors must keep patient records safe, whether on paper or in a computer.

• Hospitals can use records without consent for quality assessment and statistics.

Malingering (Shamming)

• Malingering (Shamming): It is a conscious planned feigning or pretence to having a disease in order to achieve a specific goal.

• Reasons

  • By soldiers or policemen to evade their duties

  • By prisoners to avoid hard work

  • By businessmen to avoid business contracts

  • By workmen to claim compensation

  • By beggars to attract public sympathy

  • By criminals to avoid legal responsibility.

• Diseases feigned — Ophthalmia, neurasthenia, dyspepsia, aphasia, intestinal colic, sciatica, diabetes, vertigo, spitting of blood, epilepsy, ulcers, insanity, burns, paralysis of limbs, rheumatism, artificial bruise, lumbago, etc.

  • The symptoms rarely match any known disease.

  • However, true simulation is rare.

  • The patient and his family or friends should describe the symptoms, noting any inconsistencies.

  • After washing and removing bandages, the part must be examined.

  • Observing the patient without his knowledge can diagnose it.

Euthanasia

• Euthanasia: Denotes producing painless death of a person suffering from hopelessly incurable and painful disease.

• Voluntary euthanasia: Wherein the individual requests euthanasia, either during illness or before, if complete incapacitation is expected.

• Non-voluntary euthanasia: Where an individual is incapable of perception and feeling, and hence cannot decide or distinguish between life and death, such a person cannot give informed consent.

• Involuntary euthanasia: Where an individual may distinguish between life and death, and any medical killing is involuntary, i.e. against the will of the person.

• Pediatric euthanasia: Euthanasia administered to seriously sick or deformed infants.

• Geriatric euthanasia: Euthanasia administered to seriously sick, aged individuals.

• Battlefield euthanasia: Euthanasia administered to severely wounded or handicapped individual.

• Reasons for Euthanasia

  • Unbearable pain: Patient should be allowed a dignified painless death, instead of prolonging the same through the torture of pain and disease.

  • High cost of medical treatment: It may pose economic and psychological burden to the patient’s relative.

  • Right to commit suicide.

  • Patient should not be forced to stay alive: Medical science too has its limitation and cannot cure all diseases.

• Physician-assisted suicide (PAS): The physician prescribing a drug or other action to facilitate a patient taking his/her own life, with the committed action taken by the patient.

• Palliative care: The provision of reasonable medical and nursing procedures for the relief of physical pain, discomfort or emotional and psychological suffering as well as providing food and water in terminally ill patients.