Textbook on Medicolegal Issues
Textbook on Medicolegal Issues
Related to Various Medical Specialties Second Edition Editors Satish Tiwari MD (Ped) LLB FIAP Founder President Indian Medicolegal and Ethics Association Mahesh Baldwa MBBS DCH MD LLB LLM FIAP PHD (Law) MBA Past President, Medicolegal Group of IAP Medicolegal Advisor and Senior Pediatrician Mumbai, Maharashtra, India Former Visiting Faculty, Department of Law, Mumbai University Mukul Tiwari MD DCH FIAP Consultant Pediatrician Gwalior, Madhya Pradesh, India Chairperson, Medicolegal Group of IAP 2015–2017 Zonal Chairman Indian Medicolegal and Ethics Association Alka Kuthe MBBS DGO LLM (Criminology) Consultant Obstetrician Member Ethics and Medicolegal Committee, FOGSI Zonal Chairman Indian Medicolegal and Ethics Association Chairperson Association of Maharashtra Obstetric and Gynecological Societies (AMOGS) Medicolegal Committee
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[email protected] Textbook on Medicolegal Issues First Edition: 2012 Second Edition: 2019
ISBN: 978-93-5270-515-3
Printed at Repro India Limited
Contributors Ajay Gambhir
Anju Gambhir
MD (Comm Med) MD (Ped) DHA FIAP FIAMS
MS MCH (Ped Surg)
Vice-President, IAP 2007 Member Technical Committee Immunization and Tel Medicine – GOI
Ajay Patil MBBS MD DNB (Forensic Medicine)
Professor, Department of Forensic Medicine Krishna Institute of Medical Sciences Satara, Maharashtra, India
Alka Kuthe MBBS DGO LLM (Criminology)
Consultant Obstetrician Member, Ethics and Medicolegal Committee, FOGSI Zonal Chairman, Indian Medicolegal and Ethics Association Chairperson, Association of Maharashtra Obstetric and Gynecological Societies (AMOGS) Medicolegal Committee
Amol Pawar MD DGO FCPS
Additional Professor GS Medical College and NW Wadia Maternity Hospital Mumbai, Maharashtra, India
Amrita Mishra BAMS MS MBA
Assistant Professor Department of Stree Rog Podar Ayurvedic Medical College Mumbai, Maharashtra, India
Anjan Bhattacharya
MBBS DCH (UK) MRCP (UK) MRCPCH (UK)
Consultant Pediatrician (Developmental Pediatrics) Head, Department of Academics Pediatric Apollo Gleneagles Hospital Kolkata, West Bengal, India Executive Member, GDBP Chapter IAP and West Bengal IAP
Senior Consultant (Ped Surg) Maharaja Agrasen Hospital and Apollo Clinic New Delhi, India
Archana Tiwari MS (Obs and Gyn)
Consultant Obstetrician Apex Hospital Gwalior, Madhya Pradesh, India
Arun Bal MS PhD
President Association for Consumers Action Safety and Health (ACASH) Mumbai, Maharashtra, India
Ashish Jain MBBS DCH
Consultant Pediatrician Gurugram, Haryana, India
Ashish Kale MD DNB MNAMS MICOG FICS
Fellowship in Endoscopy (Germany) Fellowship in IVF Cleveland (USA) Gynecologist, Endoscopic Surgeon and IVF Specialist Director Ashakiran Hospital, Pune Assistant Professor Maharashtra Institute of Medical Education and Research Pune, Maharashtra, India
Ashok Banga MD (Peds)
Consultant Pediatrician Astha Children Hospital Gwalior, Madhya Pradesh, India
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Ashwini Pawar MA LLB PGDMLE PGDCRL PGDSC
Consultant Counseling Psychologist Thane, Maharashtra, India
Avinash Bansal MD DHA PGD-AP
Head and Director, DNB Program Pediatrics Bharat Vikas Parishad Hospital Kota, Rajasthan, India
BB Sahni MD FIAP
Divyangi Kuthe
MBBS DNB (General Surgery) FMAS (MUHS)
Mumbai, Maharashtra, India
Dnyanesh Kambli MBBS MD (Ped) LLB
Consultant Pediatrician and Pediatric Intensivist KLE Hospital Belagavi, Karnataka, India Professor Jawaharlal Nehru Medical College Belagavi, Karnataka, India
President Indian Medicolegal and Ethics Association 2018–2019 Chief Consultant Tata Central Hospital Dhanbad, Jharkhand, India Past President, IAP Jharkhand CIAP Executive Member 2005, 2010
Gautam Biswas
Balraj Yadav
MD (Peds)
MD (Peds) FIAP LLB
Joint Secretary IYCF, Chapter IAP and Human Milk Banking Association Honorable Secretary, Indian Medicolegal and Ethics Association Senior Consultant Pediatrician and Director, Gurugram Chairman, Smt Santra Devi Health and Educational Trust (Regd) Gurugram, Haryana, India
Charu Mittal MD DNB MICOG MNAMS
Consultant Obstetrician and Gynecologist Gwalior, Madhya Pradesh, India Member, Medicolegal and Ethics Committee, FOGSI Member, Public Awareness Committee, FOGSI
CM Chhajer
Professor and Head
Department of Forensic Medicine and Toxicology Dayanand Medical College and Hospital Ludhiana, Punjab, India
Geeta Bansal Director and Senior Consultant Nishtha Shishu and Kishore Swasthya Kendra Kota, Rajasthan, India
Girish Kumthekar
MD (Obs and Gyn) LLB (Spl)
Associate Professor Department of Obstetrics and Gynecology Dr VM Govt Medical College Director and Partner, Navjeevan Fertility and IVF Center Convenor, Medicolegal Cell, IMA Solapur Branch Legal Advisor to Solapur Obstetric and Gynecological Society Solapur Hospital Owners’ Association Solapur, Maharashtra, India Member, Executive Committee, IMA Maharashtra Member, Medicolegal Ethical Committee FOGSI
MD FIAP
Geeta Guin
Assistant Professor Department of Pediatrics Tripura Medical College Agartala, Tripura, India
MS (Obs and Gyn) LLB FICOG
Associate Professor Government NSCB Medical College and Hospital Jabalpur, Madhya Pradesh, India
Dilip Walke
Gouri Gore
MD (Obs and Gyn)
MS
Chairperson – AMOGS, Medicolegal Cell Practicing Obstetrician and Medicolegal Consultant Pune, Maharashtra, India
Consultant Obstetrician and Gynecologist Founder, Vytal Healthtech Private Limited Mumbai, Maharashtra, India
Contributors
Indrajit Khandekar
Kritika Tiwari
MBBS MD (Forensic Medicine) Assistant Professor
MBBS DNB (Peds)
Department of Forensic Medicine Mahatma Gandhi Institute of Medical Sciences Sevagram; Wardha, Maharashtra, India
Ira Shah MD DNB FCPS DCH (Gold Medalist) DPID (UK)
Consultant Pediatric Infectious Diseases and Hepatology Nanavati Hospital Mumbai, Maharashtra, India Professor (Additional), Department of Pediatrics and In-Charge Pediatric HIV, TB, Liver Clinics BJ Wadia Hospital for Children Mumbai, Maharashtra, India
Jayaraman Thrikkovil Pisharam MD DCH Dip NB
Consultant Pediatrician Thangam Hospital Palakkad, Kerala, India
Jyotika Kalsy MBBS MD
District Leprosy Officer (DLO) Civil Surgeon Office Amritsar, Punjab, India
Kalpesh Shah
Clinical Associate Jaslok Hospital and Research Center Mumbai, Maharashtra, India
Mahesh Baldwa MBBS DCH MD LLB LLM FIAP PHD (Law) MBA
Past President, Medicolegal Group of IAP Medicolegal Advisor and Senior Pediatrician Mumbai, Maharashtra, India Former Visiting Faculty, Department of Law Mumbai University
Milind Shah MD DGO DFP FICOG
President, ISOPARB (2016–2018) Vice-President, FOGSI (2011) Past Chairman, Rural Obstetrics Committee FOGSI (2004–2008) Professor and Head Department of Obstetrics and Gynecology Gandhi Natha Rangaji Homoeopathic Medical College Solapur, Maharashtra, India Executive Committee Member – ISPAT, ISAR, IAGE
Mukul Tiwari MD DCH FIAP
Director of Plexus Anesthesia Solutions Consultant Anesthetist Namaha Hospital Mumbai, Maharashtra, India
Consultant Pediatrician Gwalior, Madhya Pradesh, India Chairperson, Medicolegal Group of IAP 2015–2017 Zonal Chairman, Indian Medicolegal and Ethics Association
Kanya Mukhopadhyay
Namita Padvi
MD DNB DM
MBBS MD (Anesth) DNB
MD (Anesthesia) DA
Professor (Neonatology) Department of Pediatrics Postgraduate Institute of Medical Education and Research Chandigarh, India
Kiran Borkar MBBS M D (Obs and Gyn)
Associate Professor Department of Obstetrics and Gynecology Jawaharlal Nehru Medical College, Sawangi (Meghe) Wardha, Maharashtra, India
Fellowship in Pediatric Anesthesia Assistant Professor TN Medical College Mumbai, Maharashtra, India
Nilofer Mujawar MBBS MD (Peds)
Professor Department of Pediatrics NKP Salve Institute of Medical Sciences Nagpur, Maharashtra, India
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Neetu Jain
Rajendra Bangal
MBBS DNB
MBBS MD DNB (Legal Medicine) LLB
Assistant Professor Department of Pulmonary Medicine and Critical Care Pt BD Sharma Post Graduate Institute of Medical Sciences Rohtak, Haryana, India
Professor and Head Smt Kashibai Navale Medical College Pune, Maharashtra, India
PK Nigam MD MAMS MBA PGDIHL FIAD FRCP (Glasgow)
Director Professor and Head Department of Dermatology, STD and Leprosy Pt JNM Medical College Raipur, Chhattisgarh, India
Piyali Bhattacharya DCH MD (Peds) FCCM PGDMLS PGDGC (Jamia Millia) FIAP
Pediatrician Sanjay Gandhi Postgraduate Institute of Medical Sciences Lucknow, Uttar Pradesh, India
Prabuddh Sheel Mittal MD LLB
Chief Consultant Gynecologist Sahara Hospital Gwalior, Madhya Pradesh, India
Prakash Pawar MD DGO DFP FICOG PGDMLS
Associate Professor Department of Obstetrics and Gynecology Terna Medical College Navi Mumbai, Maharashtra, India Chairperson, Ethics and Medicolegal Committee, FOGSI (2003–2007)
Pukhraj Bafna MD DCH FIAP MA
Senior Consultant and Adolescent Counselor Rajnandgaon, Chhattisgarh, India
Purendra Bhasin MS (Ophthal)
Director Ratan Jyoti Netralaya Ophthalmic Institute and Research Center Gwalior, Madhya Pradesh, India
Rajendra Borkar MBBS MD (Peds)
Associate Professor Department of Pediatrics Jawaharlal Nehru Medical College, Sawangi (Meghe) Wardha, Maharashtra, India
Rajesh Upadhyay BMS (Lucknow)
General Secretary Foundation Society Vasundhara Raje Homoeopathic Medical College and Hospital Gwalior, Madhya Pradesh, India
Rajinder Gulati MD (Paed) FIAP
Senior Medical Officer I/C Civil Hospital Khanna, Ludhiana, Punjab, India
Rakesh Bharti MD
Bharti Dermacare and Research Center Amritsar, Punjab, India
Rakesh Kumar Srivastava BSC LLB MLIBSC PhD
Additional Registrar Supreme Court of India New Delhi, India
Rishi Bhatia MBBS MS (Surgery) LL B PGDMLE PGDMLS
Laparoscopic and General Surgeon Medicolegal Advisor, UPIMA and UPNHA
Riya Kaur Kalra MBBS Final Year
Government Medical College Amritsar, Punjab, India
Contributors
Ruchita Shukla
Shivali Vaidya
MBA (HR)
BDS MDS
Director Human Medicolegal Consultants Ltd Amravati, Maharashtra, India
Samyr Dalwai MD DNB LLB
Honorary Consultant LD Clinic, LT Municipal Hospital and Medical College Sion, Mumbai, Maharashtra, India Director, New Horizons Child Development Centre Member, Committee Juvenile Justice Reforms National Commission Protection of Child Rights GOI
Sandhya Khadse MBBS MD (Ped) FIAP
Ex-Professor Department of Pediatrics BJ Medical College Pune, Maharashtra, India Presently, Dean Rajiv Gandhi Medical College Kalwa, Thane, Maharashtra, India
Satish Tiwari MD (Peds) LLB FIAP
Founder President Indian Medicolegal and Ethics Association
Associate Professor Department of Oral and Maxillofacial Pathology MPCD and Research Center Gwalior, Madhya Pradesh, India
Smriti Upadhyay BHMS
Consulting Homeopath and Medical Officer Indore, Madhya Pradesh, India
Subhash Behere MS (Gen Surg) LLB
Honorary Faculty, Medicolegal Wing INS Law College Pune, Maharashtra, India
Sudhir Mishra MD (Pediatrics)
Head, Pediatrics and In-Charge, PICU Tata Main Hospital Jamshedpur, Jharkhand, India
Sushila Baldwa MBBS DGO MD
Consultant Gynecologist Apollo Clinic Mumbai, Maharashtra, India
Tapas Koley MD (Internal Medicine)
Medical Director Modern Clinic Wai (Satara), Maharashtra, India
Specialist Physician Guest Faculty, National Institute of Health and Family Welfare Guest Faculty, West Bengal National University of Judicial Sciences International Author of Oxford University Press and Mcgraw Hill
Shashi Mohan Sardana
TBS Buxi
Shantanu Abhyankar MD (Obs and Gyn) FICOG
MD (Pediatrics)
PGDHHM (Health and Hospital Management) MBA Consultant Pediatrician Roopnagar, Punjab, India
Sheikh Minhaj Ahmed MD (Peds)
Consultant PICU NICU Lilavati Hospital and Research Center Mumbai, Maharashtra, India
MBBS MD (Radiology)
Chairman, Department of CT and MRI Sir Gangaram Hospital New Delhi, India
VP Singh MD LLB
Medicolegal Consultant Editor Legal Issues in Medical Practice Medicolegal Guidelines for Safe Practice
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Textbook on Medicolegal Issues
Varsha Baldwa
Vishesh Kumar
MBBS MD
MD (Peds)
Department of Pathology Bhagawati Hospital Mumbai, Maharashtra, India
Vijay Kuthe MBBS D Ortho
Consultant Orthopedic Surgeon Founder Member Amravati Orthopedic Association Kuthe Hospital Amravati, Maharashtra, India
National Professional Officer Regional Team Leader WHO-NPSP Bihar Region WCO India
Vivekanshu Verma MBBS DFM
Emergency Consultant Department of Emergency and Trauma Care Medanta – The Medicity Gurugram, Haryana, India
Preface to the Second Edition “deZ.;sokf/kdkjLrs ek Qys”kq dnkpu” [One should always perform righteous conduct (Satkarma) without expecting its result.] —From: Bhagvad Gita, an ancient Hindu epic The practice of medicine has seen drastic changes in the twenty first century, some with positive and some with negative implications. Overall, the changing trends do not bode well for the future of the medical professionals, especially for the doctors who want to practice honestly, ethically and without the fear of litigations and violence from patients’ huge number. With so many changes happening to the profession, the good old doctor–patient relationship has taken a back seat. Commercialization is in; corporate houses and insurance companies have jumped in to join the bandwagon. The concept of privatization has added fuel to the fire; it has escalated expectations of the patients. Doctors are not only affected by medicolegal cases but also many other legal problems arising out of other related issues of staff, instruments and infrastructure also. The Government is introducing newer and newer laws and restrictions on medical fraternity and hospitals. The legal system wants medical practitioners to follow standard practices. Setting standards is, however a difficult task. Medicine is vast and ever changing field. It is also equally important to take into account the needs of the individual patient, available infrastructure, resources and the regional limitations. In our profession, there is often no second chance. It is a very risky profession and most of us have no protective umbrella. For example, if a group of miscreants enter our clinic/ nursing home and manhandle the staff or doctors, we are defenseless and vulnerable. By the time the help comes, the physical and psychological damage is already done. It would be wrong to say that it is only the society which is at fault and responsible for this situation. It takes two hands to clap, doesn’t it? If we want to change the present scenario, then we must think and find solutions. Assuming a “we versus them” attitude will help nobody. Irresponsible media is adding to our difficulties. There are exaggerated and twisted reports in the media about misdeeds of the doctors, many of which are baseless but have the effect of creating distrust and hatred for doctors among the common men. Media is also highlighting reports of lawsuits and violence against doctors, which encourages masses to follow suit. Society is also changing; conflicts and tensions have increased in general. Mob violence and lynching behavior are becoming common. People have become edgy and are ready to fight at the smallest pretext. There are a lot of doctors now than there were in the past and there is lack of unity amongst them. Patients know that if they misbehave with one doctor and go to another doctor, they will be readily accepted. Medicine is a service which will always require human touch and cannot be governed by “cold” science alone. Most of the doctors have poor communication skills. They should try to make
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improvements in this field and should strive to develop good rapport with the patients/ relatives. Patients want to remain informed at all times and the doctor should not seem to be hiding facts from them. Doctors can learn to use some humor: good-hearted humor always befriends a doctor to patients. Despite all positive attitudes of the doctors problems may still arise. Mistakes do happen. Patients may at times be very unreasonable. Hence, it is advisable that every doctor be covered with medical indemnity insurance. But many doctors are negligent about their indemnity insurances. During the last few years, the consumer forum has given judgments on a number of cases of medical negligence. Consumer Protection lawsuits are a global trend, hence rather than trying for abolition of this act, we should try to avoid the situations which result in patients going to court. Doctors should not avoid responding to a case. He should send reply as early as possible. The explanation should address misunderstandings, misrepresentation and other discrepancies made out in written statement of the litigant. Doctors should not show antagonistic or negative attitude towards judges or presume that they are on the side of the litigant, even if their attitude or body language seems unfavorable. They should not ignore or disrespect court. CPA has really not proved beneficial to the patients. Rather, the Patient has been the ultimate loser. Doctors have started declining treatment to high risk cases in their private set-ups. These cases are referred to government hospitals where the doctor to patient ratio is very low or to corporate hospitals where the patients have to pay exorbitant charges. The term “Medicolegal” incorporates the basics of two professions, i.e. medicine and law. Although doctors meet the law at every turn during the practice of their profession they frequently have insufficient knowledge of it. In the last few years we have found various problems, which, as medical consultants/medicolegal experts, we are trying to solve single handedly. It was then, that we realized the need of a fleet of experts to work in co-ordination. The aim of this book is to create a pool of sensitized and motivated consultants who can guide their colleagues in the hour of crisis. The response to the first edition of this book has been exceptional and phenomenal; paving the path for this second edition. Ten new chapters have been added and the most of the previous chapters have been revamped and updated. We hope this book will succeed in achieving our aims and objectives of guiding the medical practitioners in their difficult times. Editors also hope the book will offer constructive suggestions and solve most of the medicolegal queries and dilemmas in day-to-day practice for doctors. The editors gratefully acknowledge contribution of the authors who have responded positively to our pressing demands and sincerely contributed their expertise in this endeavor. Lastly, we welcome feedback and suggestions from the esteemed readers that will make this book even more relevant and useful in the times to follow .…. Satish Tiwari Mahesh Baldwa Mukul Tiwari Alka Kuthe
Preface to the First Edition Hani-Labh, Jivan-Maran, Jas-Apjas Bidhi Hath (Loss-Profit, Life-Death, Fame-Defame is in the hands of destiny) — Tulsidas’s Ramcharitmanas No person on this earth is immortal. It is important to understand that doctors can never predict the future of any patient as the dynamic human body does not obey the linear laws of deterministic predictability. A very sick patient may stand long hours of surgery and recover completely while relatively healthy patient may succumb to minor stress or allergic reactions. The term “Medicolegal” incorporates the basics of two professions, i.e. Medicine and Law. Although doctors encounter the law at every turn during the practice of their profession, they frequently have insufficient knowledge of it. A doctor confronts it when, as the treating doctor, he is summoned to a court of law in a personal injury lawsuit; he meets it when he is called as an expert in connection with a claim against a colleague and when he is faced in his office or clinic by unforeseen situations, like sudden unexpected death, patient-generated violence, etc. It will be better to accept the change and brace ourselves with the knowledge to cope with the change. With passing time, the standards of medical care are rising as also the patients’ expectations. This race may convert medical practice into a battleground between the doctors and patients. In India, medical law is yet to crystallize. Nothing can be said with absolute certainty on many issues as the final word is yet to come. The legal system wants medical practitioners to follow standard practices; setting standards is, however, a difficult task. Medicine is a vast and ever-changing field. It is also equally important to take into account the needs of the individual patient, available infrastructure, resources and the regional limitations. Therefore, a lot of information, documentation and knowhow is needed. In the last few years, the medicolegal scenario has changed further. Every relationship is a dynamic process and doctor–patient relationship is no different. It has gone a sea-change since its beginning thousands of years back. It will be a futile exercise to look back and remember the good old days when the doctor was all powerful, a Semi-God. With the change in medicosocial dynamics, cases against doctors are witnessing a phenomenal rise, constant upgradation of the practicing doctor vis-á-vis the fast-changing laws of the country. Medical professionals fumble when they confront a court case against them with allegations of negligence or deficiency in medical service. It will be quite useful for today’s doctors to be wellequipped with medicolegal knowledge if they want to practice their profession safely, without the hassle of too many cases slapped on them. Doctors in the West have been quicker to respond to the need for such knowledge. There is ample literature generated from the West, which analyzes the issues of legal aspects of medical practice and doctor-patient relationship thoroughly. There is scanty literature on this subject in India where the volume of patients is many times more than that of most of the Western countries. We should have our literature, studies and observations
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suited to our milieu. With the phenomenal increase in the patient volumes in India, the need for indigenous literature is going to be even greater in the future. Each branch of medicine has its own medicolegal issues. There are different books on medicolegal issues pertaining to different branches of medicine, but no single book which comprehensively deals with medicolegal issues in most of the vulnerable branches together is available. This book was envisioned with the same objective in mind. The editors sincerely hope that this book will serve to fill the void effectively. The book looks beyond the problems and moves on to solutions. The editors hope that doctors from different specialities will find in this book constructive suggestions and solutions towards many of the issues which plague them. An endeavor has been made to include the information related to almost all the branches in allopathic medical science and to create a perfect blend of clinical practice and various laws applicable to its varied aspects. It covers major issues which a doctor is likely to face during his/her professional career with case laws and important Supreme Court judgments in simple language, so that a doctor can easily understand its legal implication and apply it. A section on the Acts and certain important tips in the form of algorithms for Safe Practice while managing the patient, have been added, which would help the doctors to follow uniform standards, which, in turn, will help in better patient care. Lastly, we welcome feedback and suggestions from the esteemed readers that will make the book more useful. Human mind is like a parachute, it works best when it is open
Satish Tiwari Mahesh Baldwa Mukul Tiwari Alka Kuthe
Contents Section 1: Basic Issues 1. Introduction......................................................................................................... 3 Rishi Bhatia
2. Ethical Issues in Medical Practice..................................................................... 7 Pukhraj Bafna
3. Rights/Duties of Patients and Doctors.......................................................... 17 Samyr Dalwai
4. Legal Hurdles in Medical Practice.................................................................. 25 Ajay Gambhir, Anju Gambhir
5. Communication Skills...................................................................................... 29 Sandhya Khadse
6. Doctor–Patient Relationship.......................................................................... 38 Mukul Tiwari
Section 2: Documentation and Liabilities 7. Record Maintenance........................................................................................ 55 Nilofer Mujawar
8. Consent............................................................................................................... 60 Alka Kuthe
9. Medical Negligence.......................................................................................... 73 VP Singh, Vivekanshu Verma
10. Errors in Medical Practice................................................................................ 78 Shashi Mohan Sardana
11. Criminal Liability ............................................................................................102 Charu Mittal
12. Difficult Situations in Practice......................................................................110 Girish Kumthekar
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