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Chapter 4: Ethics of Medical Practice
4.1: Medical Ethics
Ethics — the science of moral values or principles.
Medical ethics — as moral principles which should guide the members of the medical profession in their dealings with the patients, their relatives, the community, and other colleagues in the profession.
A doctor victimizes himself/herself to the litigious tactics of the public, irrespective of whether they are actual causative factors or not.
The major reasons for this are:
Ignorance about medical law and ethics by the young medicos leads to the consequences of negligent behaviors/failure to discharge compulsory duties towards the patient and the state, amounting to either infamous conduct or negligence charges.
Members of the general public are becoming increasingly aware of their rights due to a doctor, questioning the legality of issues.
4.2: Chakra’s Oath
According to this, the teacher instructed the disciples, in presence of sacred fire, Brahmans and Physicians thus:
Thou shalt be free from envy, not cause other’s death, and pray for the welfare of all creatures. Day and night, thou shalt be engaged in the relief of patients, thou shalt not desert a patient, not commit adultery, be modest in the attire and appearance, not be a drunkard or sinful, nor associate with abettors of crimes.
A person known to the patient shalt while entering a patient’s house, accompany you. The peculiar customs of the patient’s household shall not be made public.
Arthashastra of Kautilya — physicians were required to have taken written permission from the ruler (king) to practice medicine, their practice being regularized from time to time and they were punished for negligence.
Sushruta — the Father of Indian Surgery was another famous authority in the Indian system of medicine.
4.3: Codes of Modern Medical Ethics
Hippocratic oath — the oldest code of medical ethics, which is 25 centuries old now; its basic tenets remain as valid as ever.
The historical attractiveness of archaic language and formulations, which became anachronistic, led to the restatement of the same in the Declaration of Geneva.
Declaration of Geneva — restated the Hippocratic oath in a modern style.
Declaration of Tokyo — gives the guidelines for medical doctors concerning torture and other cruel, inhuman, or degrading treatment or punishment about detention and imprisonment.
Torture — the deliberate, systematic, or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to confess, or for any other reason.
4.4: International Code of Medical Ethics
Duties of Doctors in General
A doctor must always maintain the highest standards of professional conduct.
A doctor must practice his profession uninfluenced by motives of profit.
The following practices are deemed unethical:
Any self-advertisement except such as is expressly authorized by the national code of medical ethics.
Collaboration in any form of medical service in which the doctor does not have professional independence.
Receiving any money in connection with services rendered to a patient other than a proper professional fee, even with the knowledge of the patient.
Any act or advice, which could weaken the physical or mental resistance of a human being, may be used only in his/her interest.
A doctor is advised to use great caution in divulging discoveries or new techniques for treatment.
A doctor should certify or testify only to that which he/she has personally verified.
Duties of Doctors to the Sick
A doctor must always bear in mind the obligation of preserving human life.
A doctor owes his or her patient complete loyalty and all the resources of his/her science.
A doctor shall preserve absolute secrecy on all he/she knows about his/her patient because of the confidence entrusted to him.
A doctor must give emergency care as a humanitarian duty unless he/she is assured that others are willing and would be able to give such care.
Medical Etiquette
A doctor ought to behave to his/her colleagues, as he/she would have them behave to him/her.
A doctor must not entice patients from his/her colleagues.
A doctor must observe the principles of “The Declaration of Geneva approved by the World Medical Association”.
Declaration of Helsinki
This code of conduct for doctors emerged in 1964, introduced by the World Medical Association.
This was intended purely to embark upon any experimental scheme of treatment, or whenever clinical trials for a new drug were proposed on human beings as an experiment.
4.5: Indian Medical Council (IMC)
Office of Indian Medical Council — comprises a set of members of the profession from each state and university by-election, as well as by nominations directly by the Government of India in consultation with State Governments.
One member from each state (appointed by the government).
One member from each university (elected).
One member from each State Medical Register, representing
non-Indian degrees (Part-II, III schedule) (elected).
Seven members from each State Medical Register representing Indian degrees (Part-I, III schedule) (elected).
Eight members are nominated directly by the Central Government.
The tenure of the council is for a term of not more than 5 years or till a new office is formed.
Functions of the Indian Medical Council
Maintenance of Medical Register
Registrar — an officer appointed by the Council who will maintain a register, the Indian Medical Register
Maintenance of Medical Education
Postgraduate education — It prescribes standards of postgraduate medical education for the universities and would also offer advice to universities to maintain uniformity all over the country.
Undergraduate education — It maintains standards for undergraduate medical education by appointing inspectors who inspect the facilities and examinations held by universities/medical institutions, the purpose being to recommend recognition of the qualification to the Central Government.
Indications for Inspection
For every medical qualification when it is newly introduced.
For every five years routinely, to determine the standards, equipment, training, staff pattern, and other facilities.
Recognition of Foreign Medical Degrees
Section 12 — empowers the council to recognize medical qualifications granted by institutions outside India and to enter a scheme of reciprocity with Medical Councils of Foreign Countries in the matter of mutual recognition of medical qualifications between the two countries.
Section 13(4) — gives authorization to the council to recognize foreign medical qualifications which are not included in the schedule (II), based on reciprocal recognition.
Appeal against Disciplinary Action
Procedure of Appeal: The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from.
The Final Decision: Judgement may result in a preliminary decree or a final decree or an order by itself, the judgement is always final.
Warning Notice: Taken to warn against disciplinary action.
Explanation —Warning notice hence implies that whenever a Registered Medical Practitioner commits professional misconduct, they are self-warned about the offense and the consequences of disciplinary action by the State Medical Council.
4.6: State Medical Council
Office of State Medical Council: Each state medical council comprises a set of members of the profession from the state by-election, as well as by direct nomination by the State Government. Thus, it will have:
Members from Registered Medical Practitioners at the State (elected).
Members are directly nominated by the State Government.
The duration of the office is for a maximum period of 5 years or till a new office is formed.
Functions of the State Medical Council
Maintenance of Medical Register
The State Medical Council also maintains a State Medial Register.
This register contains the name, address, qualifications and date of qualification of every person registered in this act.
On registration, a number is allotted to each person with a certificate, enabling him to be considered as a Registered Medical Practioner.
The medical register should be maintained in order to keep track and updated of all the current records.
Disciplinary Control
The disciplinary function is the most controversial and receives maximum attention from the medical profession.
The State Medical Council Acts empower the respective council to erase the name of any doctor from the Register, when convicted of any felony, misdemeanor, crime , or judged after due inquiry by the council to have been proven guilty.
Disciplinary Inquiry
This may arise usually from two sources:
Accusations of professional misconduct either from a member of the public or a professional colleague or a certain public officer.
A statutory notification from the court officials where a doctor is convicted for any criminal offense.
Procedure
Rejection of the case: Obviously false, malicious, or otherwise unfounded trivialities are rejected at this stage.
Submission to the special committee: The cases, which cannot be rejected, shall be referred to a special committee of the President and a few other members, one of whom is a nonmedical man of good repute.
Disciplinary committee — the definitive body of the State Medical Council, which hears cases of serious nature or offenses.
Acquittals: The case may be dismissed if no prima facie evidence against the accused.
Warning: If it is a case of a first offense, the doctor may be sent back merely with a warning not to repeat the same.
Suspension: It is the eraser of the name of the doctor from the register for a specific period considering the gravity of the offense, to be reinstalled at the end of the period of suspension.
Penal Erasure — the erasure of the name of the doctor from the register permanently when the offense is confirmed beyond doubt, allowing not to practice the profession.
4.7: Registered Medical Practitioners
Registered Medical Practitioner — a qualified doctor who has been registered in State/Indian Medical Councils.
Rights and Privileges of Registered Medical Practitioners
He/she is legally recognized as a medical man and is entitled to possess/dispense, prescribed medicines listed in dangerous drug acts.
He/she can set up medical practice anywhere in India.
He/she is enabled to hold official and semi-official (government) appointments at public hospitals.
He/she is entitled to sign statutory medical certificates, such as for birth, death, mental illness, etc.
He/she is entitled to sue for recovery of his or her fees in a court of law. Gratuitous service may be rendered to a deserving poor patient, as well as to all other physicians and his/her dependent family members.
He/she is entitled to perform medicolegal autopsies.
He or she is entitled to give evidence at any inquest or in any court of law as an expert.
He/she is exempted from serving on a jury and at an inquest.
He/she can choose his/her patient.
He/she can add a title, description, etc. to his or her name.
Duties of Registered Medical Practitioner
To exercise a reasonable degree of skill and knowledge in treating a patient.
To attend and examine a patient as long as there is a need after commencing the treatment.
To provide proper and suitable medicine to the patient, either directly or by prescription.
To give proper instructions to the patient or relative of the patient regarding the use of medicine, dosage schedule, diet, etc., and warn of the dangers if not used properly.
To appoint a substitute doctor during a temporary absence, with the consent of the patient, especially in obstetrics and gynecology cases.
To warn the possibilities of cross-infecting others, in case the patient is suffering from a communicable disease.
To take proper care of children and adult patients, who are unable to take care of themselves.
To inform all the risks involved in the treatment plan. However, under the Doctrine of therapeutic privileges, doctors need not disclose everything.
To handle poisons carefully and give proper treatment to a poisoning case and also cooperate with law enforcement authorities in deciding whether the case is a suicide, homicide, or accident.
To inform health authorities of a communicable disease reported to you under the Doctrine of privileged communication, forgoing the professional secrecy principles of the ethical code.
To exercise all duties about surgery, i.e. taking consent, operating under proper anesthesia, aseptic measures, pre-and postoperative care, etc.
To treat war prisoners, civilians of any country, etc. under the duties proposed in the Geneva Convention.
Refer a patient to a specialist/consultant as and when needed on taking prior consent.
To take an X-ray of the injured part for ruling out fractures.
To maintain perfect professional secrecy.
4.8: Professional Misconduct
Professional misconduct — defined as something done by a doctor in a profession, which is considered disgraceful and dishonorable by his or her professional brethren of good repute and competence, after the inquiry by the State Medical Council.
Penal Erasure
Association with Unqualified Persons
Employing unqualified or unregistered assistants.
Assisting an unqualified person for some purpose.
Ghost surgery: Here, a qualified surgeon performs surgery on a patient on behalf of an unqualified, who enters the operation theater after the patient is anesthetist and leaves before returning to consciousness.
Covering of unqualified persons: Here a qualified doctor covers unqualified persons to enable them to practice midwifery by issuing a certificate to them, which enables them to conduct such practice.
Advertising
Direct Advertising
An unusually big nameplate or signboard announcing the structure of fees collected from the patient, any concession, etc.
Inserting name in a telephone directory in a special place, in bold type prints, etc.
A prescription paper containing appointments held.
Notification in the lay press of his address.
Indirect advertising
Contributing articles to the lay press (except on public health and allied matters).
Appearance, frequently in broadcasting media such as radio, television, etc. which have the effect of advertising.
Allowing the use of his/her name on the price list of publicity materials, handbills, etc.
Canvassing
Use of touts or agents for procuring patients.
Adultery: A medical man should maintain the highest professional standard and should not abuse his/her position to seduce a female patient or some other member of the patient's family.
Abortion: Includes procuring, assisting, or attempting to procure a criminal abortion.
Addiction: Supplying or selling addiction-forming drugs to a person on other than medical grounds.
Alcohol: Attending patients while under the effect of alcohol.
The Council can also consider any other form of alleged professional misconduct, which is not in the above list for deciding the punishment.
Avoiding consultations
In a mutilating surgery case, attending to a patient who is under the care of another practitioner.
Issuing false certificates
When the doctor is arrested/convicted by a criminal court of law for offenses involving moral turpitude.
Contravening the provisions of the drug Act.
Selling scheduled poisons to people other than his/her patients.
Running an open shop for the sale of medicines, dispensing prescriptions of other doctors, or the sale of medical/surgical appliances.
Writing prescriptions in a secret formula is known to some pharmacies or chemists only.
Commercialization of a secret remedy.
Refusing to give professional service on religious grounds.
Gross and prolonged neglect of duties.
Not attending to a patient who is already under treatment.
Receiving/giving commission or other benefits to professional colleagues/a manufacturer/trader/chemist, etc.
Dichotomy, Fee Splitting or Sharing.
Lack of concern to respond to emergencies such as traffic accidents, railway or air crashes, etc.
Talking disparagingly about colleagues or doing anything that amounts to unfair competition.
4.9: Professional Secrecy
Professional secrets — the ones, which a doctor comes to know about his/her patient in his professional capacity as a physician/ doctor.
Medicolegal Significance
Consent of the patient to the disclosure of relevant information
Disclosure on the order of a court of law
Divulging in the interests of the community
Disclosure of criminal matters on the order of a court of law
Disclosure about the servant to the master
Disclosure of the life insurance medical examiners’ reports
Professional secrets and inquiries
Divulging information on the cause of death
4.10: Consent on Medical Practice
Consent — voluntary agreement, compliance, or permission.
It becomes legally valid when it is given only after understanding:
What is it given for?
The risks involved in consequence.
Fulfills the rules of consent.
Types of Consent
Implied Consent — presumed to have been given when the patient enters the doctor’s consulting room, summons the doctor to his/her house, or holds his or her arm for an injection.
Expressed Consent
Oral consent: For the majority of relatively minor examinations or therapeutic procedures, oral expressed consent is employed, but this consent should be obtained in the presence of a disinterested third party.
Written Consent: It is obtained for all major diagnostic procedures and surgical operations.
Consent should refer to only one specific procedure.
Consent should be obtained on a special form provided for the purpose by the hospital/institution.
A third party with a proper signature should witness consent.
The doctor should explain the nature of therapeutic or surgical procedures in advance.
An intimate examination of the patient.
When anesthesia is to be given, as for minor surgical procedures.
Consent about Certain Diagnostic and Therapeutic Purposes
Rules of Consent: Legal validity of consent obtained is based on certain rules and formalities maintained in obtaining it. Consent should be always free, voluntary, informed, clear, and direct.
Doctrine of Informed Consent — written consent given by the patient after being informed of the nature of the illness, the nature of the operation or procedure to be done, its alternatives, its consequences, and complications.
Rule of Full Disclosure — the doctor should explain all relevant details to the patient.
Precautions During Consent:
Explain the object of it.
Inform the patient that he/she has the right to refuse.
Explain the complete procedure of treatment.
Consent and Certain Deviations and Exceptions
Doctrine of Therapeutic Privilege: At times it may not be possible to explain everything to the patient. Accordingly, under such circumstances, a doctor can reveal the details to any one of the close relatives of the patient.
Doctrine of Emergency: A doctor can provide the treatment without taking prior consent from a patient who is gravely sick, critically ill, unconscious, or not able to understand the suggestions or when mentally ill.
Situations Where Consent May not be Obtained
Medical emergencies
Notifiable diseases
Immigrants
Members of the Armed Forces
Handlers of Food and Dairymen
New admission to prison
In the case of a person where a court may order for psychiatric examination or treatment
Under Section 53 (1) of the Code of Criminal Procedure, a person can be examined at the request of police, by use of force.
Section 53(2) lays down that whenever a female is to be examined, it shall be made only by or under the supervision of a female doctor.
Doctrine of Locoparentis: In emergencies involving children, when their parents/ guardian are not available, according to this doctrine, consent can be obtained from the person accompanying.
Consent and Age
The minimum age for giving valid consent for physical/medical examination is 12 years.
A person who is above 18 years of age can give valid consent to suffer any harm which may result from an act in good faith and which is not intended or known to cause grievous hurt or death.
In consequence, a surgeon operating on the victim of an accident is doing it for the benefit of the patient and he cannot be held responsible if the surgery ends fatally, as the doctor is acting in good faith.
4.11: Consent about Autopsy and Organ Transplantation
Consent about Autopsy Examination
Consent is not required if it is a medicolegal autopsy.
Consent is a must from spouses or relatives for clinical or pathological autopsy.
Consent about Remove and Retain Parts of the Body
Specific consent must be obtained for this purpose. No civil action has so far been reported for the removal of tissues from the body at autopsy even without specific consent.
Consent about Organ Transplantation
In living: A person can donate voluntarily his/her organs, tissues, etc. to another person for therapeutic purposes. In India, the consent given for such purposes becomes legally valid only if the donor is above the age of 18 years.
Human Organ Transplantation Act — states that a living person should give his/her consent in writing to donate a kidney, for transplantation purposes, in presence of two or more witnesses, at least one of them should be a near relative of the person consenting.
In dead: Consent should be given earlier by the person in writing in the form of a Written Will when he was alive.
4.12: Medical Negligence
Medical negligence — a want of reasonable degree of care and skill or willful negligence on the part of a medical practitioner in treating a patient leading to injury or suffering or death.
Doctrine of Res Ipsa Loquitur — applied in situations where the injury could not have happened, but for the negligence of the doctor.
Foreign bodies left inside body cavities after the operation.
Slipping of instruments during surgery results in injuries.
Injury of the body outside the field of operation.
Operation on the wrong organ/wrong side/wrong patient.
Too tight plaster cast resulting in gangrene of foot/toes.
Giving medicines in overdose.
Giving injections in the wrong site/route.
Failure to inject anti-tetanus serum (ATS) in case of injury.
Burns from careless use of X-ray/hot water bottles, etc.
Breaking the needle while injecting, but not informing them about it the patient.
Mismatched blood transfusion.
Classification of Negligence
Civil Malpractice
Failure to exercise proper care.
Failure to do essential diagnostic tests.
Promising 100 percent cure.
Failure to give proper pre-operative and postoperative care.
Mishaps while giving injections.
Giving injections at the wrong site or by the wrong route.
Failure to count swabs or packs properly at the end of surgery and leaving one inside and closing.
Do not leave a patient unattended during labor.
Do not perform additional surgery unless in emergency
Criminal Malpractice
Cases of gross negligence such as removing healthy eyes instead of the diseased eye, amputating a healthy limb instead of an unhealthy one, etc.
Failure to reveal information to police, in all medicolegal cases.
Treating contagious diseases.
Burden of Proof and Essential Ingredients of Medical Negligence
Duty: Here the party has to prove that there existence of a duty of care by the doctor.
Dereliction — comprises the element of failure on the part of the doctor to maintain proper care and skill.
Injury resulting from diagnostic or therapeutic procedures performed under the effect of alcohol or other intoxicants will be interpreted as a lack of care.
Direct causation: The party must prove that failure to exercise a duty of care acted as the proximate cause and led to the injury (damage).
Damage: Here the party must prove that the damage has been caused as a direct consequence of the breach of duty. The damage resulted should be such that it permits objective assessment.
Foreseeability of injury: If the injury could have been foreseen or predicted by a reasonably competent man, then the particular doctor is held guilty of negligence.
Intervention by a third person: If there is an intervention by a third person (i.e. second doctor) between the alleged act of negligence by the first doctor and injury, it is difficult to decide the negligence charge on the first doctor who treated first.
Contributory negligence: At times though the doctor was negligent if the patient also refused to extend his cooperation during treatment, charges of malpractice may be examined to apportion the damages between the negligent doctor and such contributing patient.
Medical maloccurrence: Despite all proper care given by the doctor during treatment, the patient might suffer severe injuries or permanent deformities
Therapeutic misadventure: A misadventure is a mischance or accident or disaster, in which an individual is injured or died due to some unintentional Act by a doctor/hospital.
Hypersensitivity reaction or anaphylaxis
Radiological procedures for diagnostic purposes
Damage by radiations or radioisotopes.
Injury due to electrical equipment.
Death during operation.
Death during a blood transfusion.
Prolonged therapeutic prescription of stilbestrol.
Error of judgment and negligence: A doctor may not be held responsible or liable for the deleterious effects of an Act proved to have resulted from an error of judgment.
Professional negligence and infamous conduct: Involves the abuse of professional status, which lacks negligence. The allegation of criminal negligence if proven is also considered infamous conduct in professional respect.
Vicarious liability: It means an employer is held legally responsible for all. The negligent acts of his/her employees or agents appointed by him/her. It also means, letting the superior be responsible.
Differences between professional negligence and professional misconduct
Professional negligence | Professional misconduct |
|---|---|
It concerns the duties of a medical man towards his patient. | It concerns violation of codes and ethics of medical practice. |
There should be a dereliction of duty in treatment causing damage to patient. | There need not be dereliction of duty and damage to patient. |
Charges against erring doctor are brought before the court of law. | Charge is brought before the state medical council. |
Maybe punished as per IPC as in other criminal cases or may be liable to pay compensation as in other civil cases. | Where applicable, name of the erring doctor gets erased from Medical Council Register or served warning notice and reprimanded. |
Appeal cases are lodged before higher courts. | Appeals are made to the Central Governement. |
4.13: Instructions on Prevention of Charges of Negligence
Never guarantee a cure.
Keep professional knowledge updated.
Apply due care and skill in treating a patient.
Take written consent in all steps of treatment if involves risk.
Take the consent of both husband and wife in giving treatment that may result in sterility or impotency.
Advise laboratory investigations to confirm the clinical diagnosis.
Record the patient’s conditions and treatment given regularly.
Consult professional colleagues whenever necessary.
Always check the instruments and equipment before their use.
Always check for the intactness, instructions, date of expiry, etc. of an injection ampoule or vial before its use.
Perform sensitivity test/test dose for a drug known to cause anaphylactic reactions.
Immunize the patient whenever necessary.
Injury due to assault and poisoning should be specially dealt with.
Do not venture a procedure beyond the skills/field of specialization.
Avoid experimental treatment with a patient. But if it is necessary, proceed with written consent.
Write prescriptions, legibly, and neatly with proper instructions to the patient.
Give optimum postoperative care.
Avoid advice or consultations on phone.
A qualified and experienced doctor should administer anesthesia.
Do all needful check-ups and give proper pre-medications before administration of anesthesia.
Do not leave the patient till he/she recovered from anesthetic effects.
Recommend inquest in case of death from anesthesia on an operation table.
Choose your assistant with due care.
Do not stop giving treatment unless the patient desires or agrees to it.
Do not leave an emergency case unattended.
Do not criticize a professional colleague.
Arrange a substitute doctor with prior information if going on leave during treatment.
Always refer your patient to a better doctor or hospital if necessary.
Always examine a female patient in presence of another female.
Strictly maintain provisions of the medical termination of pregnancy (MTP) Act.
Always issue medical certificates with due care.
Do not make statement-admitting fault on your part.
Nine R’s of Malpractice Prevention
Rapport: Maintain healthy rapport and communication with the patient and his family, fellow physicians, office staff and nurses and other hospital personnel.
Rationale: The physician must understand what he is doing with his patients and why. The diagnostic and therapeutic rationale should be adequately documented. This can help the court in understanding the physician’s thought process.
Record: The record should be carefully prepared, complete, accurate, liable germane, timely, and generously informative. A good record speaks of good care.
Remarks: Refers to the gratuitous oral statements made to the patient and patient’s family as well as to other members of the treatment team.
Rx: Never prescribe medicine unless indicated. Doctors should be aware of drug reactions, allergies, etc. for a drug.
Res ipsa loquitur: This means ‘the thing speaks for itself’. The doctrine is applied in the court of law to refer to situations even an untrained layman will understand the malpractice without the testimony of an expert witness.
Respect: Many malpractice cases are triggered by the concurrence of a bad medical or untoward outcome and the patient’s perception that the physician lacks respect/concern for him as an individual and as a person.
Risks: Risks of treatment, which vary from patient to patient, must be discussed with a patient while taking consent.
4.14: Defenses of a Doctor against Charges of Negligence
He/she had no duty to the patient.
He/she discharged his/her duties on par with existing standards of medical practice.
The damage caused could be due to another person who was concerned about providing the treatment.
The damage was the result of third-party intervention without his/her knowledge.
The case is contributory negligence.
The damage and suffering is an expected outcome of the disease
the patient suffered from.
The case is of a reasonable degree of error of judgment.
The case is therapeutic or diagnostic misadventure.
The case is a medical maloccurrence.
The case is Res-judicata.
The damage is the result of taking an unavoidable risk, which was taken in good faith in the interest of the patient with consent.
The patient persistently insisted on a specific line of treatment, despite doctors’ warnings.
The time limit allowed by the law for lodging such a complaint is over.
Chapter 4: Ethics of Medical Practice
4.1: Medical Ethics
Ethics — the science of moral values or principles.
Medical ethics — as moral principles which should guide the members of the medical profession in their dealings with the patients, their relatives, the community, and other colleagues in the profession.
A doctor victimizes himself/herself to the litigious tactics of the public, irrespective of whether they are actual causative factors or not.
The major reasons for this are:
Ignorance about medical law and ethics by the young medicos leads to the consequences of negligent behaviors/failure to discharge compulsory duties towards the patient and the state, amounting to either infamous conduct or negligence charges.
Members of the general public are becoming increasingly aware of their rights due to a doctor, questioning the legality of issues.
4.2: Chakra’s Oath
According to this, the teacher instructed the disciples, in presence of sacred fire, Brahmans and Physicians thus:
Thou shalt be free from envy, not cause other’s death, and pray for the welfare of all creatures. Day and night, thou shalt be engaged in the relief of patients, thou shalt not desert a patient, not commit adultery, be modest in the attire and appearance, not be a drunkard or sinful, nor associate with abettors of crimes.
A person known to the patient shalt while entering a patient’s house, accompany you. The peculiar customs of the patient’s household shall not be made public.
Arthashastra of Kautilya — physicians were required to have taken written permission from the ruler (king) to practice medicine, their practice being regularized from time to time and they were punished for negligence.
Sushruta — the Father of Indian Surgery was another famous authority in the Indian system of medicine.
4.3: Codes of Modern Medical Ethics
Hippocratic oath — the oldest code of medical ethics, which is 25 centuries old now; its basic tenets remain as valid as ever.
The historical attractiveness of archaic language and formulations, which became anachronistic, led to the restatement of the same in the Declaration of Geneva.
Declaration of Geneva — restated the Hippocratic oath in a modern style.
Declaration of Tokyo — gives the guidelines for medical doctors concerning torture and other cruel, inhuman, or degrading treatment or punishment about detention and imprisonment.
Torture — the deliberate, systematic, or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to confess, or for any other reason.
4.4: International Code of Medical Ethics
Duties of Doctors in General
A doctor must always maintain the highest standards of professional conduct.
A doctor must practice his profession uninfluenced by motives of profit.
The following practices are deemed unethical:
Any self-advertisement except such as is expressly authorized by the national code of medical ethics.
Collaboration in any form of medical service in which the doctor does not have professional independence.
Receiving any money in connection with services rendered to a patient other than a proper professional fee, even with the knowledge of the patient.
Any act or advice, which could weaken the physical or mental resistance of a human being, may be used only in his/her interest.
A doctor is advised to use great caution in divulging discoveries or new techniques for treatment.
A doctor should certify or testify only to that which he/she has personally verified.
Duties of Doctors to the Sick
A doctor must always bear in mind the obligation of preserving human life.
A doctor owes his or her patient complete loyalty and all the resources of his/her science.
A doctor shall preserve absolute secrecy on all he/she knows about his/her patient because of the confidence entrusted to him.
A doctor must give emergency care as a humanitarian duty unless he/she is assured that others are willing and would be able to give such care.
Medical Etiquette
A doctor ought to behave to his/her colleagues, as he/she would have them behave to him/her.
A doctor must not entice patients from his/her colleagues.
A doctor must observe the principles of “The Declaration of Geneva approved by the World Medical Association”.
Declaration of Helsinki
This code of conduct for doctors emerged in 1964, introduced by the World Medical Association.
This was intended purely to embark upon any experimental scheme of treatment, or whenever clinical trials for a new drug were proposed on human beings as an experiment.
4.5: Indian Medical Council (IMC)
Office of Indian Medical Council — comprises a set of members of the profession from each state and university by-election, as well as by nominations directly by the Government of India in consultation with State Governments.
One member from each state (appointed by the government).
One member from each university (elected).
One member from each State Medical Register, representing
non-Indian degrees (Part-II, III schedule) (elected).
Seven members from each State Medical Register representing Indian degrees (Part-I, III schedule) (elected).
Eight members are nominated directly by the Central Government.
The tenure of the council is for a term of not more than 5 years or till a new office is formed.
Functions of the Indian Medical Council
Maintenance of Medical Register
Registrar — an officer appointed by the Council who will maintain a register, the Indian Medical Register
Maintenance of Medical Education
Postgraduate education — It prescribes standards of postgraduate medical education for the universities and would also offer advice to universities to maintain uniformity all over the country.
Undergraduate education — It maintains standards for undergraduate medical education by appointing inspectors who inspect the facilities and examinations held by universities/medical institutions, the purpose being to recommend recognition of the qualification to the Central Government.
Indications for Inspection
For every medical qualification when it is newly introduced.
For every five years routinely, to determine the standards, equipment, training, staff pattern, and other facilities.
Recognition of Foreign Medical Degrees
Section 12 — empowers the council to recognize medical qualifications granted by institutions outside India and to enter a scheme of reciprocity with Medical Councils of Foreign Countries in the matter of mutual recognition of medical qualifications between the two countries.
Section 13(4) — gives authorization to the council to recognize foreign medical qualifications which are not included in the schedule (II), based on reciprocal recognition.
Appeal against Disciplinary Action
Procedure of Appeal: The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from.
The Final Decision: Judgement may result in a preliminary decree or a final decree or an order by itself, the judgement is always final.
Warning Notice: Taken to warn against disciplinary action.
Explanation —Warning notice hence implies that whenever a Registered Medical Practitioner commits professional misconduct, they are self-warned about the offense and the consequences of disciplinary action by the State Medical Council.
4.6: State Medical Council
Office of State Medical Council: Each state medical council comprises a set of members of the profession from the state by-election, as well as by direct nomination by the State Government. Thus, it will have:
Members from Registered Medical Practitioners at the State (elected).
Members are directly nominated by the State Government.
The duration of the office is for a maximum period of 5 years or till a new office is formed.
Functions of the State Medical Council
Maintenance of Medical Register
The State Medical Council also maintains a State Medial Register.
This register contains the name, address, qualifications and date of qualification of every person registered in this act.
On registration, a number is allotted to each person with a certificate, enabling him to be considered as a Registered Medical Practioner.
The medical register should be maintained in order to keep track and updated of all the current records.
Disciplinary Control
The disciplinary function is the most controversial and receives maximum attention from the medical profession.
The State Medical Council Acts empower the respective council to erase the name of any doctor from the Register, when convicted of any felony, misdemeanor, crime , or judged after due inquiry by the council to have been proven guilty.
Disciplinary Inquiry
This may arise usually from two sources:
Accusations of professional misconduct either from a member of the public or a professional colleague or a certain public officer.
A statutory notification from the court officials where a doctor is convicted for any criminal offense.
Procedure
Rejection of the case: Obviously false, malicious, or otherwise unfounded trivialities are rejected at this stage.
Submission to the special committee: The cases, which cannot be rejected, shall be referred to a special committee of the President and a few other members, one of whom is a nonmedical man of good repute.
Disciplinary committee — the definitive body of the State Medical Council, which hears cases of serious nature or offenses.
Acquittals: The case may be dismissed if no prima facie evidence against the accused.
Warning: If it is a case of a first offense, the doctor may be sent back merely with a warning not to repeat the same.
Suspension: It is the eraser of the name of the doctor from the register for a specific period considering the gravity of the offense, to be reinstalled at the end of the period of suspension.
Penal Erasure — the erasure of the name of the doctor from the register permanently when the offense is confirmed beyond doubt, allowing not to practice the profession.
4.7: Registered Medical Practitioners
Registered Medical Practitioner — a qualified doctor who has been registered in State/Indian Medical Councils.
Rights and Privileges of Registered Medical Practitioners
He/she is legally recognized as a medical man and is entitled to possess/dispense, prescribed medicines listed in dangerous drug acts.
He/she can set up medical practice anywhere in India.
He/she is enabled to hold official and semi-official (government) appointments at public hospitals.
He/she is entitled to sign statutory medical certificates, such as for birth, death, mental illness, etc.
He/she is entitled to sue for recovery of his or her fees in a court of law. Gratuitous service may be rendered to a deserving poor patient, as well as to all other physicians and his/her dependent family members.
He/she is entitled to perform medicolegal autopsies.
He or she is entitled to give evidence at any inquest or in any court of law as an expert.
He/she is exempted from serving on a jury and at an inquest.
He/she can choose his/her patient.
He/she can add a title, description, etc. to his or her name.
Duties of Registered Medical Practitioner
To exercise a reasonable degree of skill and knowledge in treating a patient.
To attend and examine a patient as long as there is a need after commencing the treatment.
To provide proper and suitable medicine to the patient, either directly or by prescription.
To give proper instructions to the patient or relative of the patient regarding the use of medicine, dosage schedule, diet, etc., and warn of the dangers if not used properly.
To appoint a substitute doctor during a temporary absence, with the consent of the patient, especially in obstetrics and gynecology cases.
To warn the possibilities of cross-infecting others, in case the patient is suffering from a communicable disease.
To take proper care of children and adult patients, who are unable to take care of themselves.
To inform all the risks involved in the treatment plan. However, under the Doctrine of therapeutic privileges, doctors need not disclose everything.
To handle poisons carefully and give proper treatment to a poisoning case and also cooperate with law enforcement authorities in deciding whether the case is a suicide, homicide, or accident.
To inform health authorities of a communicable disease reported to you under the Doctrine of privileged communication, forgoing the professional secrecy principles of the ethical code.
To exercise all duties about surgery, i.e. taking consent, operating under proper anesthesia, aseptic measures, pre-and postoperative care, etc.
To treat war prisoners, civilians of any country, etc. under the duties proposed in the Geneva Convention.
Refer a patient to a specialist/consultant as and when needed on taking prior consent.
To take an X-ray of the injured part for ruling out fractures.
To maintain perfect professional secrecy.
4.8: Professional Misconduct
Professional misconduct — defined as something done by a doctor in a profession, which is considered disgraceful and dishonorable by his or her professional brethren of good repute and competence, after the inquiry by the State Medical Council.
Penal Erasure
Association with Unqualified Persons
Employing unqualified or unregistered assistants.
Assisting an unqualified person for some purpose.
Ghost surgery: Here, a qualified surgeon performs surgery on a patient on behalf of an unqualified, who enters the operation theater after the patient is anesthetist and leaves before returning to consciousness.
Covering of unqualified persons: Here a qualified doctor covers unqualified persons to enable them to practice midwifery by issuing a certificate to them, which enables them to conduct such practice.
Advertising
Direct Advertising
An unusually big nameplate or signboard announcing the structure of fees collected from the patient, any concession, etc.
Inserting name in a telephone directory in a special place, in bold type prints, etc.
A prescription paper containing appointments held.
Notification in the lay press of his address.
Indirect advertising
Contributing articles to the lay press (except on public health and allied matters).
Appearance, frequently in broadcasting media such as radio, television, etc. which have the effect of advertising.
Allowing the use of his/her name on the price list of publicity materials, handbills, etc.
Canvassing
Use of touts or agents for procuring patients.
Adultery: A medical man should maintain the highest professional standard and should not abuse his/her position to seduce a female patient or some other member of the patient's family.
Abortion: Includes procuring, assisting, or attempting to procure a criminal abortion.
Addiction: Supplying or selling addiction-forming drugs to a person on other than medical grounds.
Alcohol: Attending patients while under the effect of alcohol.
The Council can also consider any other form of alleged professional misconduct, which is not in the above list for deciding the punishment.
Avoiding consultations
In a mutilating surgery case, attending to a patient who is under the care of another practitioner.
Issuing false certificates
When the doctor is arrested/convicted by a criminal court of law for offenses involving moral turpitude.
Contravening the provisions of the drug Act.
Selling scheduled poisons to people other than his/her patients.
Running an open shop for the sale of medicines, dispensing prescriptions of other doctors, or the sale of medical/surgical appliances.
Writing prescriptions in a secret formula is known to some pharmacies or chemists only.
Commercialization of a secret remedy.
Refusing to give professional service on religious grounds.
Gross and prolonged neglect of duties.
Not attending to a patient who is already under treatment.
Receiving/giving commission or other benefits to professional colleagues/a manufacturer/trader/chemist, etc.
Dichotomy, Fee Splitting or Sharing.
Lack of concern to respond to emergencies such as traffic accidents, railway or air crashes, etc.
Talking disparagingly about colleagues or doing anything that amounts to unfair competition.
4.9: Professional Secrecy
Professional secrets — the ones, which a doctor comes to know about his/her patient in his professional capacity as a physician/ doctor.
Medicolegal Significance
Consent of the patient to the disclosure of relevant information
Disclosure on the order of a court of law
Divulging in the interests of the community
Disclosure of criminal matters on the order of a court of law
Disclosure about the servant to the master
Disclosure of the life insurance medical examiners’ reports
Professional secrets and inquiries
Divulging information on the cause of death
4.10: Consent on Medical Practice
Consent — voluntary agreement, compliance, or permission.
It becomes legally valid when it is given only after understanding:
What is it given for?
The risks involved in consequence.
Fulfills the rules of consent.
Types of Consent
Implied Consent — presumed to have been given when the patient enters the doctor’s consulting room, summons the doctor to his/her house, or holds his or her arm for an injection.
Expressed Consent
Oral consent: For the majority of relatively minor examinations or therapeutic procedures, oral expressed consent is employed, but this consent should be obtained in the presence of a disinterested third party.
Written Consent: It is obtained for all major diagnostic procedures and surgical operations.
Consent should refer to only one specific procedure.
Consent should be obtained on a special form provided for the purpose by the hospital/institution.
A third party with a proper signature should witness consent.
The doctor should explain the nature of therapeutic or surgical procedures in advance.
An intimate examination of the patient.
When anesthesia is to be given, as for minor surgical procedures.
Consent about Certain Diagnostic and Therapeutic Purposes
Rules of Consent: Legal validity of consent obtained is based on certain rules and formalities maintained in obtaining it. Consent should be always free, voluntary, informed, clear, and direct.
Doctrine of Informed Consent — written consent given by the patient after being informed of the nature of the illness, the nature of the operation or procedure to be done, its alternatives, its consequences, and complications.
Rule of Full Disclosure — the doctor should explain all relevant details to the patient.
Precautions During Consent:
Explain the object of it.
Inform the patient that he/she has the right to refuse.
Explain the complete procedure of treatment.
Consent and Certain Deviations and Exceptions
Doctrine of Therapeutic Privilege: At times it may not be possible to explain everything to the patient. Accordingly, under such circumstances, a doctor can reveal the details to any one of the close relatives of the patient.
Doctrine of Emergency: A doctor can provide the treatment without taking prior consent from a patient who is gravely sick, critically ill, unconscious, or not able to understand the suggestions or when mentally ill.
Situations Where Consent May not be Obtained
Medical emergencies
Notifiable diseases
Immigrants
Members of the Armed Forces
Handlers of Food and Dairymen
New admission to prison
In the case of a person where a court may order for psychiatric examination or treatment
Under Section 53 (1) of the Code of Criminal Procedure, a person can be examined at the request of police, by use of force.
Section 53(2) lays down that whenever a female is to be examined, it shall be made only by or under the supervision of a female doctor.
Doctrine of Locoparentis: In emergencies involving children, when their parents/ guardian are not available, according to this doctrine, consent can be obtained from the person accompanying.
Consent and Age
The minimum age for giving valid consent for physical/medical examination is 12 years.
A person who is above 18 years of age can give valid consent to suffer any harm which may result from an act in good faith and which is not intended or known to cause grievous hurt or death.
In consequence, a surgeon operating on the victim of an accident is doing it for the benefit of the patient and he cannot be held responsible if the surgery ends fatally, as the doctor is acting in good faith.
4.11: Consent about Autopsy and Organ Transplantation
Consent about Autopsy Examination
Consent is not required if it is a medicolegal autopsy.
Consent is a must from spouses or relatives for clinical or pathological autopsy.
Consent about Remove and Retain Parts of the Body
Specific consent must be obtained for this purpose. No civil action has so far been reported for the removal of tissues from the body at autopsy even without specific consent.
Consent about Organ Transplantation
In living: A person can donate voluntarily his/her organs, tissues, etc. to another person for therapeutic purposes. In India, the consent given for such purposes becomes legally valid only if the donor is above the age of 18 years.
Human Organ Transplantation Act — states that a living person should give his/her consent in writing to donate a kidney, for transplantation purposes, in presence of two or more witnesses, at least one of them should be a near relative of the person consenting.
In dead: Consent should be given earlier by the person in writing in the form of a Written Will when he was alive.
4.12: Medical Negligence
Medical negligence — a want of reasonable degree of care and skill or willful negligence on the part of a medical practitioner in treating a patient leading to injury or suffering or death.
Doctrine of Res Ipsa Loquitur — applied in situations where the injury could not have happened, but for the negligence of the doctor.
Foreign bodies left inside body cavities after the operation.
Slipping of instruments during surgery results in injuries.
Injury of the body outside the field of operation.
Operation on the wrong organ/wrong side/wrong patient.
Too tight plaster cast resulting in gangrene of foot/toes.
Giving medicines in overdose.
Giving injections in the wrong site/route.
Failure to inject anti-tetanus serum (ATS) in case of injury.
Burns from careless use of X-ray/hot water bottles, etc.
Breaking the needle while injecting, but not informing them about it the patient.
Mismatched blood transfusion.
Classification of Negligence
Civil Malpractice
Failure to exercise proper care.
Failure to do essential diagnostic tests.
Promising 100 percent cure.
Failure to give proper pre-operative and postoperative care.
Mishaps while giving injections.
Giving injections at the wrong site or by the wrong route.
Failure to count swabs or packs properly at the end of surgery and leaving one inside and closing.
Do not leave a patient unattended during labor.
Do not perform additional surgery unless in emergency
Criminal Malpractice
Cases of gross negligence such as removing healthy eyes instead of the diseased eye, amputating a healthy limb instead of an unhealthy one, etc.
Failure to reveal information to police, in all medicolegal cases.
Treating contagious diseases.
Burden of Proof and Essential Ingredients of Medical Negligence
Duty: Here the party has to prove that there existence of a duty of care by the doctor.
Dereliction — comprises the element of failure on the part of the doctor to maintain proper care and skill.
Injury resulting from diagnostic or therapeutic procedures performed under the effect of alcohol or other intoxicants will be interpreted as a lack of care.
Direct causation: The party must prove that failure to exercise a duty of care acted as the proximate cause and led to the injury (damage).
Damage: Here the party must prove that the damage has been caused as a direct consequence of the breach of duty. The damage resulted should be such that it permits objective assessment.
Foreseeability of injury: If the injury could have been foreseen or predicted by a reasonably competent man, then the particular doctor is held guilty of negligence.
Intervention by a third person: If there is an intervention by a third person (i.e. second doctor) between the alleged act of negligence by the first doctor and injury, it is difficult to decide the negligence charge on the first doctor who treated first.
Contributory negligence: At times though the doctor was negligent if the patient also refused to extend his cooperation during treatment, charges of malpractice may be examined to apportion the damages between the negligent doctor and such contributing patient.
Medical maloccurrence: Despite all proper care given by the doctor during treatment, the patient might suffer severe injuries or permanent deformities
Therapeutic misadventure: A misadventure is a mischance or accident or disaster, in which an individual is injured or died due to some unintentional Act by a doctor/hospital.
Hypersensitivity reaction or anaphylaxis
Radiological procedures for diagnostic purposes
Damage by radiations or radioisotopes.
Injury due to electrical equipment.
Death during operation.
Death during a blood transfusion.
Prolonged therapeutic prescription of stilbestrol.
Error of judgment and negligence: A doctor may not be held responsible or liable for the deleterious effects of an Act proved to have resulted from an error of judgment.
Professional negligence and infamous conduct: Involves the abuse of professional status, which lacks negligence. The allegation of criminal negligence if proven is also considered infamous conduct in professional respect.
Vicarious liability: It means an employer is held legally responsible for all. The negligent acts of his/her employees or agents appointed by him/her. It also means, letting the superior be responsible.
Differences between professional negligence and professional misconduct
Professional negligence | Professional misconduct |
|---|---|
It concerns the duties of a medical man towards his patient. | It concerns violation of codes and ethics of medical practice. |
There should be a dereliction of duty in treatment causing damage to patient. | There need not be dereliction of duty and damage to patient. |
Charges against erring doctor are brought before the court of law. | Charge is brought before the state medical council. |
Maybe punished as per IPC as in other criminal cases or may be liable to pay compensation as in other civil cases. | Where applicable, name of the erring doctor gets erased from Medical Council Register or served warning notice and reprimanded. |
Appeal cases are lodged before higher courts. | Appeals are made to the Central Governement. |
4.13: Instructions on Prevention of Charges of Negligence
Never guarantee a cure.
Keep professional knowledge updated.
Apply due care and skill in treating a patient.
Take written consent in all steps of treatment if involves risk.
Take the consent of both husband and wife in giving treatment that may result in sterility or impotency.
Advise laboratory investigations to confirm the clinical diagnosis.
Record the patient’s conditions and treatment given regularly.
Consult professional colleagues whenever necessary.
Always check the instruments and equipment before their use.
Always check for the intactness, instructions, date of expiry, etc. of an injection ampoule or vial before its use.
Perform sensitivity test/test dose for a drug known to cause anaphylactic reactions.
Immunize the patient whenever necessary.
Injury due to assault and poisoning should be specially dealt with.
Do not venture a procedure beyond the skills/field of specialization.
Avoid experimental treatment with a patient. But if it is necessary, proceed with written consent.
Write prescriptions, legibly, and neatly with proper instructions to the patient.
Give optimum postoperative care.
Avoid advice or consultations on phone.
A qualified and experienced doctor should administer anesthesia.
Do all needful check-ups and give proper pre-medications before administration of anesthesia.
Do not leave the patient till he/she recovered from anesthetic effects.
Recommend inquest in case of death from anesthesia on an operation table.
Choose your assistant with due care.
Do not stop giving treatment unless the patient desires or agrees to it.
Do not leave an emergency case unattended.
Do not criticize a professional colleague.
Arrange a substitute doctor with prior information if going on leave during treatment.
Always refer your patient to a better doctor or hospital if necessary.
Always examine a female patient in presence of another female.
Strictly maintain provisions of the medical termination of pregnancy (MTP) Act.
Always issue medical certificates with due care.
Do not make statement-admitting fault on your part.
Nine R’s of Malpractice Prevention
Rapport: Maintain healthy rapport and communication with the patient and his family, fellow physicians, office staff and nurses and other hospital personnel.
Rationale: The physician must understand what he is doing with his patients and why. The diagnostic and therapeutic rationale should be adequately documented. This can help the court in understanding the physician’s thought process.
Record: The record should be carefully prepared, complete, accurate, liable germane, timely, and generously informative. A good record speaks of good care.
Remarks: Refers to the gratuitous oral statements made to the patient and patient’s family as well as to other members of the treatment team.
Rx: Never prescribe medicine unless indicated. Doctors should be aware of drug reactions, allergies, etc. for a drug.
Res ipsa loquitur: This means ‘the thing speaks for itself’. The doctrine is applied in the court of law to refer to situations even an untrained layman will understand the malpractice without the testimony of an expert witness.
Respect: Many malpractice cases are triggered by the concurrence of a bad medical or untoward outcome and the patient’s perception that the physician lacks respect/concern for him as an individual and as a person.
Risks: Risks of treatment, which vary from patient to patient, must be discussed with a patient while taking consent.
4.14: Defenses of a Doctor against Charges of Negligence
He/she had no duty to the patient.
He/she discharged his/her duties on par with existing standards of medical practice.
The damage caused could be due to another person who was concerned about providing the treatment.
The damage was the result of third-party intervention without his/her knowledge.
The case is contributory negligence.
The damage and suffering is an expected outcome of the disease
the patient suffered from.
The case is of a reasonable degree of error of judgment.
The case is therapeutic or diagnostic misadventure.
The case is a medical maloccurrence.
The case is Res-judicata.
The damage is the result of taking an unavoidable risk, which was taken in good faith in the interest of the patient with consent.
The patient persistently insisted on a specific line of treatment, despite doctors’ warnings.
The time limit allowed by the law for lodging such a complaint is over.
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