LEGAL MEDICINE [24 x 7 HELPLINE]: 2008-06-15

Tuesday, June 17, 2008

SCRAPING OF SECTION 309 IPC - HOW JUSTIFIED IS IT?

Talks are doing rounds to scrap Section 309 IPC. Suicide is a legal paradox. If the person fails, to succeed in taking away the life, there is a case under 309 of I.P.C. However, when the person succeeds there is no punishment. It is a good move to remove section 309 I.P.C. Some apprehension is if some body is driven commit suicide for pecuniary benefits like inheritance of property, forcing old people to commit suicide, then what to do? So, for such situations some remedy should also be thought of simultaneously. These are the views of Dr. B.V. Subrahmanyam, Professor of Forensic Medicine, Narayana Medical College, Chinthareddypalem,
Nellore.

Opinions are invited from you on this issue. You can post your comments here.

Sunday, June 15, 2008

MAINTENANCE OF MEDICAL RECORDS

*The records should be kept under lock and key, in the custody of the doctor concerned or may be kept in a Central Record Room, in hospitals where such facility is available; as per the institution’s rules.
*Most hospitals have a policy of maintaining all medico-legal records [MLR’s] for variable periods. However, as per law, there is no specified time limit after which the MLR’s can be destroyed. Hence, they have to be preserved permanently.
*In view of the multitude of cases against the doctors under the Consumer Protection Act, it is advisable to preserve all the in-patient records for a period of at least 5 years and OPD records for 3 years.
*The Medical Council of India has given the following recommendations in context of medical and medico-legal records and their maintenance:
- Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in a standard performa laid down by the Medical Council of India [available at http://www.mciindia.org/]
- If any request is made for medical records either by the patient/authorized attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within a period of 72 hours.
- A registered medical practitioner shall maintain a Register of Medical Certificates giving full details of certificates issued. When issuing a medical certificate he/she shall always enter the identification marks of the patient and keep a copy of the certificate. He/She shall not omit to record the signature and/or thumb mark, address and at least one identification mark of the patient on the medical certificate or report.

LEGAL DUTIES OF A MEDICAL PRACTITIONER IN DEALING WITH POISONING CASES

During his professional career, every general medical practitioner comes across many cases of poisoning. In our country, a majority of the cases of poisoning are suicidal/ accidental in nature. Rarely do we come across a case of homicidal poisoning.

Whenever a victim of poisoning is brought to a medical practitioner, even though it is a medico-legal case, medical responsibilities of the doctor assume first importance i.e. saving the life of the patient. Legal duties, i.e. informing the legal authorities and other related procedures always take a back seat in such instances.
Therefore the legal duties of the medical practitioner are likely to be missed during the management of the poisoned patient.
* As soon as the doctor agrees to treat a patient, the doctor-patient relationship is established. It then becomes the duty of a doctor to treat the patient.
*A doctor working in a government hospital can never refuse treatment to a patient of poisoning. *On the other hand, a private practitioner has the right to choose a patient and hence, can refuse to treat a case of poisoning.
*Though every doctor has a right to choose a patient (i.e. he can refuse to treat any patient), as per the Supreme Court Ruling (Parmananda Katara Vs Union of India), no doctor shall refuse to treat a patient in emergency. In the same case, the MCI filed an affidavit stating that “the MCI expects that all registered medical practitioners must attend to the sick and the injured immediately and it is the duty of the medical practitioner to make immediate and timely medical care available to every injured person, whether he is injured in an accident or otherwise…..Life of a person is far more important than the legal formalities.” However, in such cases, the doctor-patient relationship is not established till the patient has been given first-aid treatment and is in a position to give consent for further treatment or medico-legal examination. All legal formalities stand suspended till the patient’s life is out of danger. The duty of the doctor to provide medical aid, even in MLCs, has been extended to the private doctors also as exemplified by the High Court of Andhra Pradesh in Pattipati Venkaiah Vs State of AP. Therefore, it is unethical to refuse any case of emergency like poisoning.
*A medical practitioner must remember that he is protected against any harm done in good faith to a patient in an emergency situation ethically as well as legally as per Section 92 IPC.
*In order to avoid any legal or medical complications, it is always advisable to consult a senior colleague in cases of doubt or otherwise.
*In the absence of tell-tale signs and symptoms of poisoning, observation of the patient for at least 24 hours is a good practice and can help medical practitioners avoid a lot of suits of negligence being filed against them.
*If working in a government hospital, a doctor is bound to inform the legal authorities of all the cases of poisoning regardless of their manner, either suicidal/accidental/homicidal.
*A private medical practitioner, on the other hand, is not legally bound to inform the legal authorities of all the cases of poisoning. He only has a legal obligation to inform in homicidal cases of poisoning as per Section 39 CrPC. He is not bound to inform the legal authorities if he is sure the case is suicidal/ accidental in nature. However, as doctor is not an investigating officer and can never be sure about the manner of poisoning, to be on the safer side, he should always inform the legal authorities about any case of poisoning.
*Failure to inform the police in a case of homicidal poisoning makes the doctor liable for prosecution under Section 176 IPC [punishment is simple imprisonment of 1 month or fine of Rs. 500/- or both].
*In circumstance of death in a case of poisoning (irrespective of whether the police was informed of the case or not due to any reason), death certificate should not be issued and the body should be handed over to the legal authorities for a medico-legal postmortem examination.
*If an investigating officer inquires about a case of poisoning, regardless of its nature, the medical practitioner is expected to report all details to him (without taking excuse of professional secrecy) failing which he can be penalized under Sections 193 IPC [punishment is imprisonment of either description upto 7 years with fine] and 202 IPC [punishment is imprisonment of either description upto 6 months or fine or both].
*If the doctor provides false information, then he is liable to be punished under Section 177 IPC [punishment is of simple imprisonment for 6 months or fine of Rs. 1000 or both].
It is the duty of a medical practitioner to collect and preserve any evidence suggestive of or confirmatory to poisoning. Failure to do so attracts penalization under Section 201 IPC [punishment is imprisonment of either description upto 7 years depending upon the nature of offence tried to shield]. In this case, the onus of proving a non-deliberate omission to collect and preserve the samples would lie on the medical practitioner.
*Materials like vomitus, the first returning fluid of stomach wash, feces, blood, urine etc. should be collected and preserved for chemical analysis and dispatched to the nearest forensic science laboratory at the earliest. In case of any delay, they should be properly preserved.
*In case of an imminent death, doctor should arrange for recording of a dying declaration.
*In case a doctor comes across a case of poisoning arising out of a public eating place or where further exposure to other people is anticipated, as his duty towards the State, he must inform the authorities concerned.

MEDICOLEGAL QUERRIES SOLVED

LIABILITY OF HOSPITALS IN CASES OF MEDICAL NEGLIGENCE

It is a broad and debatable issue. Hospitals can be held both, directly as well as vicariously responsible for negligence. Various instances where a hospital can be held negligent have been listed below:
Failure to maintain equipments in proper working condition constitutes negligence. In case of damage occurring to a patient due to absence/ non-working equipment e.g. oxygen cylinder, suction machine, insulator, ventilator etc. the hospital can be held liable.

Failure to hand over copies of medical records, X-rays, etc., constitutes negligence or deficiency in service. In India, a provision in respect of medical records has been made in The Indian Medical Council [Professional conduct, Etiquette and Ethics] Regulations 2002, Regulations 1.3.1 and 1.3.2 which state that every registered medical practitioner has to maintain medical records pertaining to its indoor or outdoor patients for a period of at least three years from the date of commencement of treatment in the prescribed form given by MCI and if any request is made for medical records either by patient/ authorized attendant or legal authorities involved, the same may be duly acknowledged and documents be issued within the period of 72 hours. Also it must not be forgotten that it is the right of every patient to obtain in writing about his/her medical illness, investigations and treatment given on a prescription/ discharge ticket. Non-providing of medical records to the patients/ attendants may amount to deficiency in service under the Consumer Protection Act, 1986.

Improper maintenance of cleanliness and/or unhygienic condition of hospital premises amounts to negligence. In Mr. M Ramesh Reddy v. State of Andhra Pradesh [2003 (1) CLD 81 (AP SCDRC)], the hospital authorities were held to be negligent, inter alia, for not keeping the bathroom clean [in this case the bathroom was covered with fungus and was slippery], which resulted in the fall of an obstetrics patient in the bathroom leading to her death. A compensation of Rs. 1 Lac was awarded against the hospital.

A curious issue is that of liability in cases of polyclinics. Polyclinic means a place where doctors of different specialties practice with common staff and other facilities. Since every doctor is practicing individually, he would be responsible for his own negligence and not for others. But a particular doctor may also be vicariously liable for negligence of staff of the polyclinic, if the negligence occurs during the care of his particular patient in addition to the polyclinic being held liable for the negligence of its staff. The other doctors may get involved as partners of the polyclinic depending upon the agreement between them.
Where the ambulance service provider, usually a hospital, professes that the ambulance is equipped with life-saving equipment and such equipment is either absent or non-functioning, it is liable for negligence in case of a mishap. In the United Kingdom, even delay in arrival of ambulance has been held negligent on the part of hospital as even a common man knows the importance of properly equipped ambulance arriving on time in saving a life [Kent vs Griffiths, (2002) 2 AII ER 474].

What is medical negligence?
It is lack of reasonable care and skill or willful negligence on the part of a doctor in respect to acceptance of patient, taking of history, examination, diagnosis, investigation, treatment etc. resulting in an injury or any damage to the patient.
Damage means physical/ mental/ functional injury to the patient.

Does refusing to attend a patient constitute negligence?
A private practitioner is free to choose his patient. He should exercise due care before deciding to accept a patient for treatment. One must not accept a case beyond his level of competence.
On the other hand, a medical practitioner in government service cannot refuse to treat a patient. If he feels incompetent to handle a case, the case must be immediately referred to an appropriate consultant.
The liberty of private practitioners to choose patient does not extend in cases of emergency. No medical practitioner can refuse to treat a patient in cases of emergency as ruled by Honorable Supreme Court of India [a decision upheld by Medical Council of India too].
Any hospital/ nursing home/ private clinic who declare in writing that they provide emergency services, 24 hours a day are legally bound to attend to all the cases. In case of non availability of competent staff or requisite equipment in working order at these places resulting in damages would amount to negligence.

When does a doctor-patient relationship not get established?
Or
When does the duty of care of a hospital/ medical practitioner towards the patient does not arise?
Whenever a registered medical practitioner examines a patient for purposes other than advising treatment, no doctor-patient relationship establishes in true sense. The conditions are:
1. Examination for insurance purpose
2. Examination for pre-employment fitness
3. Examination of accused in medicolegal cases when ordered
by court
4. Examination for law suit purpose when requested by lawyer

As per Section 92 IPC, every medical practitioner is protected against any unintended harm done to a patient in cases of emergency as it is believed that no doctor-patient relationship establishes in emergency situations. But a doctor can be held negligent in cases of emergency if deviation from standard expected care and permitted margin of error is too much.

There is a general tendency on part of medical practitioners to insert a standard clause in consent forms or contracts [during admission or before operative procedures], exonerating them or the institution from any harm done to the patients during the treatment or procedure. Does it have any legal validity?

Answer is NO.
Section 23 of Indian Contracts Act, 1872 prohibits such exonerating clauses. If any term of the consent or contract is opposed to public interests, such consent or contract is not valid in Law.

In suspected or possible medicolegal cases, the medical practitioners have a tradition being followed of asking the patient or relatives to give in writing that they don’t want the case to be converted into a medicolegal one. Does this written statement from the victim or relatives have any legal validity?

Answer is NO.
Such an exercise is senseless as it is the medical practitioner who has to decide whether a given case qualifies to be a medicolegal one or not. There is no role of the relatives in such an issue. Any written statement from victim or relative negating the conversion of case as MLC does not have any legal standing.

What is actually a ‘MLC’ or ‘Medicolegal Case?
A medicolegal case is any medical case where the attending medical practitioner, after eliciting history and examining the patient, thinks that an investigation by law enforcement agency is necessary to establish and fix responsibility for the case in accordance with the law of the land.
It’s a medical case with legal implications or a legal case requiring medical expertise. An attending practitioner is solely responsible for labeling a case a medicolegal one.

Can a patient be charged for converting a case as MLC?
Answer is NEVER.
No medical practitioner can charge a patient for registering his case as MLC. Informing legal authorities of any case with legal implications is a medical practitioner’s duty towards STATE.

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