LEGAL MEDICINE [24 x 7 HELPLINE]

Medicolegal Querry

2009-12-03T21:42:00.000-08:00

Sagheer has left a new comment on your post "Medicolegal Querries":

i had to emergently admit my mother to a nearby hospital for breathing difficulties arising from Interstitial Lung Disease. She was put on ventilator support in ICU. She was kept on ventilator for three days and as the condition improved, gradually weaned out. Soon we got her discharged (against medical advice) and shifted her to a private run medical college.

The local hospital charged me Rs 6000 per day as rental for the ventilator (nursing charges, ICU rent etc were seperate) and I had to pay up Rs 18,000/- for the three days. When I took her to the private run medical hospital, I was surprised to find that the medical college was charging rent for ventilator @ Rs 50/- per hour (i.e Rs 1200/- per day).

I propose to take up this matter of levying exhorbitant charges with regulatory agencies. Can you please advise me on the next course of action. Whom should i approach - the ethics committe of IMA, medical council of India or consumer court

The answer to the above querry:

Every doctor has a right to fix his fees. The only question that can arise with respect to charged fee is that whether the fees were told in advance or not and whether the charges made are the same as promised at the time of admission or providing the services.

A complaint can be filed in Consumer Forum where the doctor/ hospital charges fees in excess of that mentioned in the list of charges or displayed; as for example, the hospital charges more amount that that mentioned in the brochure/ list/ notice board as a package for a particualr surgery/ procedure or charges more than the amount agreed.

It is for the doctor - a medical practitioner- to fix his fee for various services and the patient has no legal right to determine as to whether the fee charged is reasonable or exorbitant, as the amount of fee charged by a medical pratitioner depends upon a number of factors ie. his technical qualification, experience in the profession and the nature and quality of services rendered by him. So there cannot be a hard and fast yard stick, as it differs from doctor to doctor - This has been stated by Haryana State Commission in Dr. R B Kapoor v. Phool Dev Prasad case.

Also, the National Commission in Sudhanshu Bhattacharya v. B S Hegde has held that it is not for the Consumer Forums to adjudicate on the question whether the fee charged was reasonable or excessive.

So in your case, if the hospital has charged you according to the hospital fees, nothing can be done.

Medicolegal Querries

2009-09-18T03:17:00.000-07:00

Dr. Roopam Gupta
CMO-cum-Administrator
Alipore Hospital & Research Centre,
Alipore, NH- No.8, Taluka- Chikhli,
District- Navsari; State- Gujarat.
INDIA. PIN-396409

Mobile-+91 909 992 2480
(+91 2634) 233146, 231742, 329310, 651586
www.aliporehospital.com

Dr. Roopam Gupta had following queries, answers to which are given below.

1. In cases of Discharge Against Medical Advise (DAMA)- Is the private hospital supposed to hand over all reports like – X-Ray plates, USG reports, Lab Reports to the patient?

Yes. Even though the patient goes against the doctor’s advice, he has a right to get his medical records. He can ask for a copy of hospital treatment records and should be complied. With regards to X ray plates, USG reports, Lab reports, they should be given after due acknowledgement of receipt on his case papers.

2. What is the Ideal History to be mentioned in MLC certificates? (Because we hear what the relatives allege only and many times it is exaggerated or wrong) Is it OK to only write ‘Alleged History of Road Traffic Accident at place at time.’ And then proceed with reporting description of injury or should we mention the whole story (Car No. & Truck Reg. No., who struck whom etc)

In medicolegal cases, history should be taken from the patient himself; if this is not possible, then nearest relative and lastly from the person, who has brought him/ her. Name of the person who has given the history should be clearly mentioned. With regards to the content, there is no need to go into the details as asked above. Whatever the patient says in relation to the case should be written, as it is, without any alterations.

3. What is the medico legal implication of employing BAMS & DHMS docs as ‘HOUSEMEN’ (Who do not sign anywhere but work under direct supervision of registered Consultants) in a hospital of allopathic medicine in GUJARAT. As per your Blog it seems wrong if the State Govt. dose not allow. What is the situation for Gujarat?

As per the Honorable Supreme Court Ruling, a medical practitioner who has qualified in a particular system of medicine cannot practice another system of medicine. If he practices a system of medicine in which he is not qualified, he is considered as a ‘quack’. As a rule, a hospital giving services in a particular system of medicine should not employ a practitioner expert in another system of medicine. If any hospital employs BAMS or DHMS doctors (who work as houseman and do not sign anywhere but work under direct supervision of a registered consultant), then the registered consultant as well as the hospital shall be held negligent on the part of any mistake done by the BAMS or DHMS doctor.

4. If our Hospital is advertising that we provide 24 Hours service and if the consultant (eg Orthopedic) is on leave or the person recently resigned- then if we refer the patient to another hospital after giving the PRIMARY FIRST AID TREATMENT and informing the police; are we on the right side of the law?

Ideally, any hospital who advertises 24 hours service should provide necessary facilities to the patients round the clock. In case, a consultant goes on leave, an alternative arrangement should be made. If the consultant has resigned, during the notice period, a suitable replacement should be done. If the consultant goes off without any notice, then efforts should be made to find a replacement as early as possible. But if arrangements can’t be made, it’s better to notify the same in public to be on a safer side. If facilities are not available for a genuine reason and the patient is referred to another hospital after giving the PRIMARY FIRST AID TREATMENT and informing the police [if the case is medicolegal], then you are on the right side of the law.
But if after advertisement of 24 hours service, the emergency treatment facilities are not available and something unfortunately happens to the patient, because of deficiency of services, then the hospital shall be held negligent.

5. Can a private hospital refer the cases of Attempt to Murder, Rape, Sexual Offences, Burns, and Attempt to suicide etc to any Govt. Hospital after giving the PRIMARY FIRST AID TREATMENT and informing the police? Because the Thorough Forensic examination required in these cases may not be done very properly by our Doctors. Is this reason valid?

Every doctor has a right to choose a patient. That means that a medical practitioner can refuse to treat a patient. But this right cannot be exercised in case of emergencies as per the Honorable Supreme Court Ruling. If facilities for treatment of a patient are not available or if the medical practitioner feels that he is not competent enough to handle a particular case, he should consult another colleague or can refer the patient where such facilities are available, taking due care that he reaches under the hands of another practitioner safely.
Simply refusing to treat or referring a case just because it is a medicolegal one is unethical. Forensic examination, as well as rules and regulations, are being taught in the MBBS course and every medical practitioner should be aware of the same.

6. If the patient is brought dead to our hospital, we examine the patient on OPD basis, then declare him/her dead and inform the Police. If the case happens to be of MLC type are we on the right side of the law?

If the patient brought to you for treatment is found dead on first examination, whether the case is MLC or not, every medical practitioner should inform the case to the concerned police station and get a postmortem done.

MEDICAL NEGLIGENCE AND HOSPITALS

2009-07-17T21:47:00.000-07:00

Hospitals in India may be held liable for their services individually or vicariously. They can be charged with negligence and sued either in criminal/ civil courts or Consumer Courts. As litigations usually take a long time to reach their logical end in civil courts, medical services have been brought under the purview of Consumer Protection Act,1986 wherein the complainant can be granted compensation for deficiency in services within a stipulated time of 90 -150 days.

Cases, which do not come under the purview of Consumer Protection Act, 1986 (e.g., cases where treatment is routinely provided free of cost at non-government or government hospitals, health centers, dispensaries or nursing homes, etc.) can be taken up with criminal courts where the health care provider can be charged under Section 304-A IPC for causing damages amounting to rash and negligent act or in Civil Courts where compensation is sought in lieu of the damage suffered, as the case may be.

Liability of hospitals in cases of negligence
Hospitals liability with respect to medical negligence can be direct liability or vicarious liability. Direct liability refers to the deficiency of the hospital itself in providing safe and suitable environment for treatment as promised. Vicarious liability means the liability of an employer for the negligent act of its employees. An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of ‘respondeat superior’ meaning ‘let the master answer’. Employers are also liable under the common law principle represented in the Latin phrase, "qui facit per alium facit per se", i.e. the one who acts through another, acts in his or her own interests. This is a parallel concept to vicarious liability and strict liability in which one person is held liable in Criminal Law or Tort for the acts or omissions of another. An exception to the above principle is ‘borrowed servant doctrine’ according to which the employer is not responsible for negligent act of one of its employee when that employee is working under direct supervision of another superior employee [e.g. Where a surgeon employed in one hospital visits another hospital for the purpose of conducting a surgery, the second hospital where the surgery was performed would be held liable for the acts of the surgeon].

Direct liability
A hospital can be held directly liable for negligence on many grounds.

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 service6. 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 hours7. 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].

Levying of excess/ wrong charges is considered as deficiency of service and can be claimed under Consumer Protection Act and in Civil Court. Charging for a bed facility which was not provided, taking surcharges, amount taken as medicolegal charges etc. are examples where hospitals can face litigations. A patient can file a complaint in Consumer Court if the hospital charges fees in excess of that mentioned in the list of charges displayed or disclosed or agreed upon.

With regards to HIV & HBsAg, most of the hospitals have made it mandatory to get all their indoor patients investigated for HIV & HBsAg. These investigations are not a part of any treatment and are done without prior consent of the patient. Carrying out such investigations without the consent that too for reasons not related to the treatment of the patient can be considered as unethical practice and either a complaint can be lodged with State Medical Council or charges/ damages can be claimed through civil litigation or consumer forum. HIV testing is either mandatory or voluntary. When testing is legally done without the consent of the person, it is known as mandatory testing e.g., for screening donors of blood, semen, organs or tissues in order to prevent transmission of HIV to the recipient of the biological products. In all other circumstances, it has to be voluntary, i.e., with the knowledge and express written consent of the person as it is necessary to respect the individual’s need to maintain confidentiality.
Hospitals can be charged with negligence for transmission of infection including HIV, HBsAg, etc. if any patient develops such infection during the course of treatment in the hospital and it is proved that the same has occurred on account of lapse on part of the hospital.

As applicable to any other organization, hospitals too cannot blanketly refuse to give employment on the basis of an individual’s HIV status. It depends on what job a particular person is to be employed for. A sero-positive individual can be employed if there is no question of him/her coming in contact with patients or procedures that can result in spread of infection. If any person on the rolls of a hospital is found to be sero positive or develops AIDS, the hospital should review that person’s staff privileges and determine whether or not the medical condition interferes with the persons’ ability to perform on the job and whether the condition creates a health risk to the patients. The Centre for Disease Control [CDC] although does not advise that HIV positive individuals be routinely restricted from performing surgery, it does recommend that the restrictions be determined on a case by case basis. The employee could be given other duties in the hospital that involves lesser degree of direct patient care or could be required to use extra safety precautions while dealing with patients. There is no generally accepted medical evidence that HIV can be transmitted through normal day to day contact in typical private workplace setting. The CDC has issued guidelines that recognize that, with the exception of health care workers and personal service workers who use instruments that pierce skin, no testing or restriction is indicated for workers known to be infected with HIV but otherwise is able to perform their jobs. If any hospital does not follow the guidelines and there results an infection of the patient, it can be held directly responsible for negligence.

Misleading signboards, prescription slips and advertisements of hospitals can be construed as deficiency in service or unfair trade practice under the Consumer Protection Act, 1986 and damages can be awarded for such practices. Wrong claims of availability of certain facilities like some hospitals claiming in their sign boards/ prescription slips that 24 hr emergency services are available in their setup but in fact they lack basic emergency facilities like services of a doctor round the clock, necessary equipment in working order, intensive care facilities etc. construes negligence. Wrong depiction of qualifications of doctor like MD [Gyn.] against a doctor’s name creating an impression and misleading the patients that the doctor possesses PG degree in Gynecology whereas it was obtained from Germany and was equivalent to MBBS as per rules of MCI may also be construed as negligence [1993 (1) CPR 422 (NCDRC)]. Claiming guaranteed results for operative procedures that do not give desired outcome also amount to negligence.

Vicarious liability
A hospital can be held vicariously liable on numerous grounds on different occasions.

Several High Court Judgments have held hospitals vicariously liable for damages caused to the patients by negligent act of their staff. In one judgment of the Kerala High Court in Joseph @ Pappachan v. Dr. George Moonjerly [1994 (1) KLJ 782 (Ker. HC)], in support of the following effect stated that ‘persons who run hospital are in law under the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s scalpel. They must do it by the staff which they employ; and if their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone else who employs other to do his duties for him. In another judgment by the Madras High Court in Aparna Dutta v. Apollo Hospitals Enterprises Ltd. [2002 ACJ 954 (Mad. HC)], it was held that it was the hospital that was offering the medical services. The terms under which the hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. It is expected from the hospital, to provide such a medical service and in case where there is deficiency of service or in cases, where the operation has been done negligently without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability by stating that there is no master-servant relationship between the hospital, and the surgeon who performed the operation. The hospital is liable in case of established negligence and it is no more a defense to say that the surgeon is not a servant employed by the hospital, etc. In another judgment by the National Consumer Redressal Commission in case of Smt. Rekha Gupta v. Bombay Hospital Trust & Anr. [2003 (2) CPJ 160 (NCDRC)], related to negligence of a consultant doctor, the Commission observed that the hospital who employed all of them whatever the rules were, has to own up for the conduct of its employees. It cannot escape liability by mere statement that it only provided infrastructural facilities, services of nursing staff, supporting staff and technicians and that it cannot suo moto perform or recommend any operation/ amputation. Any bill including consultant doctor’s consultation fees are raised by the hospital on the patient and it deducts 20% commission while remitting fees to the consultant. Whatever be the outcome of the case, hospital cannot disown their responsibility on these superficial grounds.

The hospital authorities are not only responsible for their nursing and other staff, doctors, etc. but also for the anesthetists and surgeons, who practice independently but admit/ operate a case. It does not matter whether they are permanent or temporary, resident or visiting consultants, whole or part time. The hospital authorities are usually held liable for the negligence occurring at the level of any of such personnel. Where an operation is being performed in a hospital by a consultant surgeon who was not in employment of the hospital and negligence occurred, it has been held that it was the hospital that was offering medical services. The terms under which the defendant hospital employs the doctors and surgeons are between them but because of this it cannot be stated that the hospital cannot be held liable so far as third party patients are concerned. The patients go and get themselves admitted in the hospital relying on the hospital to provide them the medical service for which they pay the necessary fee. It is expected from the hospital, to provide such medical service and in case where there is deficiency of service or in cases like this, where the operation has been done negligently without bestowing normal care and caution, the hospital also must be held liable and it cannot be allowed to escape from the liability due to reason of non-existing master-servant relationship between the hospital and the surgeon.

There are many instances where a senior or super-specialist performs surgery in a centre where such expertise is not locally available. After the surgery, the post-operative care is left to the local competent doctor. Failure of the senior/ super specialist to personally supervise the postoperative care may not constitute negligence provided the doctor to whom responsibility of the post operative care lies is competent; same applying to a visiting physician. It has been held by National Consumer Redressal Commission [1993 (3) CPR 414 (NCDRC)] that in case of the operation being performed in an institution, it is the duty of the institution to render postoperative treatment and care to the hospital’s patients. Quite often foreign doctors undertake operations in India and it cannot be maintained that the post operative care and treatment shall continue to be provided by the foreign doctor who may no longer be in the country. But same may not be held in every case if the visiting surgeon never inquires about the condition of the patient and leaves the patient for postoperative care and follow up treatment to the competence of the other surgeon who was unable to properly treat and look after the patient and the patient dies. Here the treating doctor can also be made party to the negligence.

In many cases of negligence against government hospitals, it has been held that the State is vicariously liable for negligence of its doctors or staff or even primarily liable where there is lack of proper equipment or staff. In few cases, court has passed orders to the effect that the compensation paid to the complainant may be recovered from the government doctors whose negligence has been established. The Honorable Supreme Court in Achutrao & ors v. State of Maharashtra & Ors [JT 1996(2) SC 664] has observed that running a hospital is a welfare activity undertaken by the Government but it is not an exclusive function or activity of the Government so as to be regarded as being in exercise of its sovereign power. Hence, the State would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees. In another case of Smt. Santra v. State of Haryana & Ors [(2005) 5 SCC 182], the contention that the State is not vicariously liable for the negligence of its officers in performing the sterilization operation was not accepted in view of the above judgment of the Supreme Court of India. In another case of Rajmal v State of Rajasthan [AIR 1996 Raj. HC 80], where the patient died of neurogenic shock following laparoscopic tubal ligation done at a primary health centre, an enquiry committee constituted on the directions of the Rajasthan High Court found that the doctor was not negligent in conducting the operation, nor his competence, integrity or efforts were doubted. It was lack of adequate resuscitative facilities and trained staff that was held responsible for the death and the State Government was held vicariously liable and was directed to pay compensation to the husband of the deceased. In another case of Dr. M. K. Gourikutty & etc. v. M. K. Madhavan and Ors [AIR 2001 Ker. HC (DB) 398], where patient had died following post partum sterilization, the Court found negligence on part of the defendants and liability was fixed on State Government, anesthesiologists and other staff instead of holding only the State vicariously liable. The Honorable Punjab and Haryana High Court, in Punjab State v. Surinder Kaur [2001 ACJ 1266 (P&H-HC], has stated that the doctor working in a government hospital was performing the duty while he/ she was under the employment of the State and in these circumstances, the master is always responsible for the vicarious liability of the acts committed by the employee in the course of such employment. It is for the State to determine the liability of the erring doctors. It is their internal affair but so far as patient is concerned she can recover the amount from the State Government. It is the duty of the authorities under the State to see that its employees are available in time in the hospital. If for any reason, a doctor or expert is not available, the Hospital authorities would have known before hand and some other persons should be posted. The primary responsibility of the Hospital authorities is to see that there is no negligence on its part or on the part of its officers. The non-providing of a doctor or anesthetist or an assistant is essentially a lapse on the part of hospital authorities and are thus liable for negligence. In R. P. Sharma v. State of Rajasthan [AIR 2002 Raj. HC (Jpr. Bench) 104], where a woman died because of mismatched blood transfusion, the State was held vicariously responsible for the negligent act of its blood bank officer and the doctor who transfused the blood. It was further held that the State of Rajasthan is free to recover the amount from those doctors. In Rukmani v. State of Tamil Nadu [AIR 2003 Mad. HC 352], the Madras High Court observed that in India where the population is increasing each second and family planning is a national programme, the doctor as well as the State must be held responsible in damages on account of failure of a sterilization operation which is directly responsible for an additional birth in the family, creating additional economic burden on the family.

Compensation can be awarded to an injured person for not being provided treatment in a Government hospital or for death or injury caused therein because of negligence. In the case of Paschim Bangal Khet Mazdoor Samity & Ors v. State of West Bengal [1996 (4) SC 260], the Honorable Supreme Court held that providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. Failure on the part of government hospital to provide timely medical treatment to a person in need of such treatment is violation of his right to life guaranteed under Article 21 of Indian Constitution [death of the patient occurring for not being admitted/ given proper treatment for want of bed in a government hospital].

Appointing practitioners of Alternative Systems of Medicine [Ayurveda/ Unani/ Sidha] or Homeopaths in hospitals giving services in allopathy too amounts to negligence. It is the duty of the hospital to provide properly qualified, skilled and experienced doctors for treatment. The Supreme Court of India has held that there is no scope for a person who is registered under the Indian Medicine Central Council Act, 1970 [Council for registration of practitioners of Indian Medicine – Ayurveda, Unani and Sidha] and enrolled on the State or Central Register of Indian Medicine to practice modern scientific medicine [allopathy] in any of its branches. All that is allowed to such practitioners is to make use of the various modern advances like radiology reports, laboratory investigations etc. for the purposes of practicing in their own system. However, if any State law recognizes the qualification of integrated courses or other qualifications as ‘sufficient qualification’ for registration in the State Medical Register, within the meaning of the Indian Medical Council Act, 1956 on being registered in the State Medical Register, he is eligible to practice allopathic medicine. This benefit would be available only in those States where the privilege of such right to practice any system of medicine is conferred by the State law which is for the time being in force, under which practitioners of Indian Medicine are registered in their State Medical Register. However, in the States where no such privilege is available, this does not debar them from prescribing or administering allopathic drugs sold across the counter for common ailments. The same rule does not apply for homeopaths as their registration is restricted to Homeopathic Practitioners Act, 1959.

HOW TO ISSUE PROPER CAUSE OF DEATH CERTIFICATE AND THE RULES THEREOF TO BE FOLLOWED

2009-01-19T03:00:00.000-08:00

Rules as per Registration of Birth and Deaths Act, 1969 [Amended in 2004]:

Certain sections of the act are relevant to every medical practitioner. As per Section 8(1-b), a medical practitioner in charge of a hospital, maternity home, health centre, nursing home or other like institutions has to notify births as well as deaths within 21 days of occurrence. As per Section 10(2), every State Government has made a provision to obtain cause of death certificate from a medical practitioner. As per Section 10 (3), with regards to section 10 (2), in case of death of a person, a certificate of cause of death has to be issued by a medical practitioner who attended the deceased in his last illness without charging any fee in the prescribed form stating to the best of his knowledge and belief, the cause of death and the same has to be delivered to Registrar of Births and Deaths at the time of notifying death. As per Section 17 (1-b), any person on payment of required fees and postal charges subject to any rules made by respective State Governments, can obtain an extract from the register relating to any birth or death, without disclosing confidentiality of the cause of death. If a medical practitioner neglects or refuses to issue a cause of death certificate as per Section 10 (3), he is liable to be punished with fine up to Rs. 50/- as per Section 23 (3) of this act.

Responsibilities of medical practitioner:

All hospital deaths including medico-legal case deaths are to be covered under the scheme called MCCD [Medical Certification of Cause of Death]. This scheme has been put forward by WHO and has been incorporated in RBD Act, 1969 of India. As per the MCCD scheme, any medical practitioner attending the deceased in his/ her last illness, after death of the person shall fill in Form No. 4 [for institutional deaths] and Form No. 4A [for non-institutional deaths] [The forms are given at the end]. Medical practitioners are instructed not to fill and submit form 4/ 4A for still births. For still births, separate Form 3 is made available. He has to send the completed form to the respective District Registrar of Birth and Deaths by 5^th of every month that in turn has to send it to the Chief Registrar of the State who shall send it to the Registrar General, India.

Instructions on how to fill the certificate:

Name of the deceased should be in full – not in initials. In case of infants not yet named at the time of death, write S/o or D/o followed by names of father and mother. If the deceased is above the age of 1 year, give the age in completed years, if below 1 year, give age in months, if below 1 month, give age in completed number of days and if below 1 day, give it in completed hours. Sex of the deceased should be noted.

The column for cause of death is divided into two parts: Part I and Part II. Part I has three parts (a), (b) and (c). The cause of death includes any disease or injury responsible to initiate a chain of events incompatible with life resulting in death of a person³. In single morbid condition, it should be written on line (a) of Part I. Nothing else needs to be written. Immediate cause is reported in line (a). It is the disease/injury/complication that preceded death. It may be the sole entry. But there must be an entry. Mode of dying (heart failure/respiratory failure/ cardiorespiratory arrest) should never be entered. Mode or mechanism of death is the physiological disturbance or derangement resulting from cause of death being incompatible with life³. It serves no purpose. If condition on line (a) is due to another condition, record that in line (b). It is antecedent to the immediate cause of death. If condition on line (b) is due to another underlying condition, mention it in line (c). It is the condition antecedent to condition on line (b). If condition on line (b) is underlying condition then nothing more should be entered. When many conditions are involved, write full sequence. There should only be one condition per line with most recent condition at the top; example: [a] Perforation – [b] intestinal obstruction – [c] inguinal hernia; Septicemia - [b] gangrene foot - [c] diabetes.

In part II, other conditions/diseases that unfavorably influenced the course/ modified/ contributed to the fatal outcome should be written. It may even not relate to the disease causing death.

Next column is for interval between onset of diseased condition & death. Write exact period, when it is known. When unknown, approximate period should be written. It provides useful check on the sequence of events. Last column is for ICD code. That is not to be filled by the certifying medical practitioner. It shall be filled at the Registrar’s office after consulting the International Statistical Classification of Diseases 10 and National List prepared from ICD 10. The list is available at the District Registrar. The list being exhaustive is not given here.

Below the cause of death column, there is provision for indicating the manner of death; being natural, accidental, suicidal, homicidal or if pending investigation. Manner of death is the fashion in which the death occurred. The certifying practitioner is expected to clearly write how the injuries occurred, as the case may be. Then for female deaths, one has to mention whether the death was associated with pregnancy. If yes, whether there was delivery or not?

Below the certificate, every medical practitioner is expected to sign and write his full name and designation along with date [preferably use seal].

Last part is detachable portion of the certificate which has to be duly filled and given to the next of kin of the deceased along with the body. In this part, confidentiality regarding the cause of death is to be maintained. The purpose of giving the last portion is to enable the relative register the death of the deceased.

Form 4, Form 4A and Form 3 can be procured from the Registrar of Births and Deaths present in each city.

Recent Changes in Criminal Procedure Code and Indian Penal Code relevant to Medical Profession

2008-08-27T20:42:00.000-07:00

Changes in the Criminal Procedure Code, 1973
The bill for the changes in certain sections of Criminal Procedure Code has been passed in year 2005 and the amendments are in force as on today. Certain sections have a direct bearing on medical practitioners and only those are listed below:
*Powers of 1st and 2nd Class Judicial Magistrates have been changed. A first class judicial magistrate can now award fine up to Rs. 10,000/- [earlier Rs. 5,000/-] whereas a second class judicial magistrate can now award fine up to Rs. 5,000/- [earlier Rs. 1,000/-] as per changes in Section 29 of the said act.
*Section 53 [1] states that an accused can be examined by a doctor at the request of a police officer, not below the rank of a sub-inspector [or any other officer acting under his direction and good faith], even without his consent, and by use of reasonable force, if there are reasonable grounds to believe that such an examination will afford evidence regarding the commission of the offence. In this section, word ‘examination’ has been elaborated meaning examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests that a registered medical practitioner thinks necessary in that particular case.
A new Section 53 – [A] has been introduced regarding examination of person accused of rape by medical practitioner. It states that [1] when a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds to believe that an examination will afford evidence as to the commission of the offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed, by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector [or any other officer acting under his direction and good faith], to make such an examination of the arrested person with use of reasonable force as required. [2] The registered medical practitioner conducting such examination has to examine such person without any delay and prepare a report of his examination giving the following particulars, namely the name, age and address of the accused, brought by whom, injury over the body, if any with complete description of all the materials taken from the body of accused examined for further investigations. [3] The report should precisely state all the reasons for each conclusion arrived at. [4] The exact time of commencement and completion of the examination should be noted in the report. [5] The report should be forward, without delay to the investigating officer, who shall forward it to the Magistrate.
*Section 54 of the principal act has been renumbered as sub-section [1] and sub-section [2] has been introduced which states that where an examination is made under sub-section (1), a copy of the report of such examination is to be furnished by the registered medical practitioner to the arrested person or the person nominated by such arrested person.
*A new Section 164 – [A] has been introduced regarding medical examination of victim of rape. According to it, [1] when during investigation, medical examination of victim of rape/ attempted rape is to be done, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman should be sent to a registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence. [2] The registered medical practitioner, to whom such woman is sent, should examine her, without any delay and prepare a report of her examination giving the following particulars, namely the name, age and address of the woman, brought by whom, injuries over the body, general mental condition of the female with detailed description of all materials taken for investigation. [3] The report should precisely state all the reasons for each conclusion arrived at. [4] The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained. [5] The exact time of commencement and completion of the examination shall also be noted in the report. [6] The report should be forward, without delay to the investigating officer, who shall forward it to the Magistrate. [7] Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.
*An amendment has been done in Section 176 where in sub-section (1), the words “where any person dies while in the custody of the police or” is omitted. A new subsection 1-A, has been included where (a) any person dies or disappears, or (b) rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorized by the Magistrate or the court, under this Code in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed. A new insertion has been made after sub-section (4) before the Explanation. It states that (5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under sub-section (1-A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical person appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.
Changes proposed in Indian Penal Code, 1860
The amendment bill, 2006 has following propositions and is to be passed in the parliament. Certain sections have a direct bearing on medical practitioners and only those are listed below:
*In Section 304 [punishment for culpable homicide not amounting to murder], a new provision has been made, namely:— “Provided that if death is caused to a girl or a woman, the accused committing such homicide shall be punished with imprisonment for whole life and shall also be liable for fine which may extend to two lakh rupees.
In sub-section (2) of Section 304-B [definition and punishment for dowry death], for the words “seven years” the words “ten years” shall be substituted thereby increasing the punishment for dowry deaths.
*In Section 312 [punishment for causing miscarriage not in good faith to save the life of woman with her consent], before the explanation the following provision shall be inserted, namely:—“Provided that if the miscarriage is of a female foetus caused after a sex determination test, the person or the pregnant woman, as the case may be, causing miscarriage of such female foetus shall be punished with rigorous imprisonment which shall not be less than seven years but may extend to imprisonment for life and shall also be liable to fine which may extend to one lakh rupees.
*In Section 313 [punishment for causing miscarriage not in good faith to save the life of woman 8

without her consent], the following provision shall be added, namely— Provided if a miscarriage of a female foetus is caused after pre-natal sex determination test, the accused shall be punished with imprisonment for life and shall also be liable to fine which may extend to two lakh rupees.
*In Section 314 [punishment for causing death of woman by an act done with intent to cause miscarriage], for the words “imprisonment of either description for a term which may extend to ten years and shall also be liable to fine” the words “rigorous imprisonment which shall not be less than ten years and shall also be liable to fine which may extend to two lakh rupees” shall be substituted. Also before the explanation the following provision shall be inserted, namely:— “Provided that if the miscarriage is caused after conducting a pre-natal sex determination test of the foetus confirming it to be a female foetus, the person causing the miscarriage shall be punished with rigorous imprisonment for life and shall also be liable to fine which may extend to two lakh rupees.
*In Section 315 [punishment for doing an act with intent to prevent a child being born alive or die soon after birth], original section has to be renumbered as sub-section (1) thereof and the following sub-section shall be inserted, namely:— (2) If the offence referred to in sub-section (1) is committed after conducting a pre natal sex determination test confirming a female foetus, the person committing such an offence shall be punished with rigorous imprisonment for life and shall also be liable to fine which may extend to two lakh rupees.
*In Section 316 [punishment for causing death of a quick unborn child by an act amounting to culpable homicide], original section shall be re-numbered as sub-section (1) thereof and the following sub-section shall be inserted, namely:— (2) If the offence referred to in sub-section (1) is committed after conducting a sex determination test confirming that the quick unborn child is female child, the person doing such as act shall be punished with rigorous imprisonment for life and shall also be liable to fine which may extend to one lakh rupees.
*In Section 317 [punishment for exposing and abandoning a child under 12 years of age by parents or person having care of it], original section shall be re-numbered as sub-section (1) thereof and the following sub-section shall be inserted, namely:— (2) If the child so exposed or abandoned is a girl child, the person doing so shall be punished with rigorous imprisonment for term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees.
*In Section 318 [punishment for concealment of birth by secret disposal of body], original section shall be re-numbered as sub-section (1) thereof the following sub-section shall be inserted, namely:— (2) If the child whose dead body is so disposed of is of a girl child the person committing such offence shall be punished with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees.
*In Section 376 [punishment for rape], after sub-section (2), the following sub-sections shall be inserted, namely:— (3) Notwithstanding anything contained in sub-section (2) whoever commits rape on a woman when she is under ten years of age shall be punished with death and (4) Whoever commits incestuous rape on a woman shall be punished with death.
References:
The Code of Criminal Procedure [amendment] Act, 2005 [No. 25 of 2005] dated June 23, 2005.

The Indian Penal Code [Amendment] Bill, 2006 [bill no. XXXI of 2006].

SCRAPING OF SECTION 309 IPC - HOW JUSTIFIED IS IT?

2008-06-17T07:06:00.000-07:00

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.

MAINTENANCE OF MEDICAL RECORDS

2008-06-15T03:25:00.000-07:00

*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

2008-06-15T03:21:00.000-07:00

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.

CME on MEDICOLEGAL PRACTICES for MEDICAL OFFICERS

2008-06-01T02:54:00.000-07:00

The Department of Forensic Medicine & Toxicology at KLE University’s JN Medical College, Belgaum, Karnataka conducted a one day CME on MEDICOLEGAL PRACTICES for MEDICAL OFFICERS’ in May 2008. Medical officers working in peripheral health centers of Belgaum District were covered. About 100 medical officers from different talukas of Belgaum district attended the CME. The topics were presented by the faculty of our own department. It included ‘Examination and certification of cases of injury, victim & accused of sexual offences, drunkenness, Sample collection, preservation and dispatch in medicolegal cases, Medicolegal aspects of poisoning and Postmortem examination in detail’. Everybody who attended the CME appreciated it. To our surprise, veterans from nearby Ayurvedic Medical College who were present in the audience applauded it so much that they even invited one of our faculties to give a guest lecture on Examination of Sexual Offences Cases.

All the delegates requested to have such CME every 6 months so that people in service get regularly refreshed and updated as well as those who join new in service get a first hand training in dealing medicolegal issues.
Arranging such CME’s/ Workshops/ Conferences for medical officers, who are the backbone of medicolegal services in our country, have been found to be much more helpful in bringing up the quality of medicolegal services. This has been proved with us because the interest these medical officers show after attending such CME/ Workshop/ Conference has been outstanding. It reflects in their attitude & work.
Inspector General of Police, Shri Raghavendra Auradker, Northern Range, Karnataka, who was the Chief Guest for our CME at Belgaum, applauded the efforts of the Department directed towards bringing a healthy change in improving medicolegal services in our country. One of our premier institutes engaged in medicolegal work has described postmortem examination as ‘DIRTY WORK’ which according to him was a sorry attitude towards our own work. He stressed that medicolegal work cannot be uplifted or given its due importance unless the people who practice it give respect to it. It was so humble on his part that at that very juncture, he invited the whole audience to ask any of their queries with regards to medicolegal issues and answered to all the queries thrown at him spontaneously.
The IGP also asked the department to hold such CME with participation of all police personnel of the district along with people from judiciary so that all the pillars of medicolegal work come together on single platform and discuss medicolegal issues at length. All the suggestions that would come out of such discussion should then be forwarded to concerned State and Central Government for implementation.

LEGAL MEDICINE MANUAL

2008-05-26T11:04:00.000-07:00

Myself, along with two of my friends and colleagues Dr. Lavlesh Kumar and Dr. Krishnadutt Chavali, have come up with our new book titled 'Legal Medicine Manual' published by Jaypee Brothers Medical Publishers, New Delhi.
We feel that major burden of medico-legal work in India lies on the untrained shoulders of medical officers who work at peripheral health centers and duty medical officers of various hospitals. The doctors usually when confronted with a medicolegal case are not in a position to deal with the situation due to lack of adequate training in the field. A textbook in forensic medicine is not of much help at that stage.
This was when we conceived a need for a book that can provide practical and field-based information to deal with such situations in appropriate manner and the present book was born. It is designed to provide brief and essential assistance in our day to day practice in the field of forensic medicine and toxicology.
The book is not another textbook in the subject of Forensic Medicine and Toxicology and the whole subject cannot be found – nor is intended to be found - in this book.
This books deals with the practical aspects of the subject forensic medicine, medical jurisprudence and toxicology. It is solely concerned with examination for medicolegal purposes. The contents are intended to be useful to undergraduate students, postgraduate students, interns, practitioners, duty medical officers in hospitals and medical officers in the government hospitals as well as to lawyers and police.We feel that in present times when our hospitals and doctors are being constantly scrutinized in the public, this type of book is a must to avoid an embarrassing situation while dealing with medicolegal issues.
The book covers routine medicolegal issues along with postmortem examination in detail. We have tried to make it simple and easy to understand. The treatment of the topics is designed to offer practical advice when confronted with medicolegal issues. All three of us are “freshers” in the field of forensic medicine and any suggestions/criticism towards improving this book in future editions are always welcome. We hope that this book shall be useful to all those who deal with medicolegal work and serve its purpose.
The book is available at leading book stores at cover price of Rs. 295/- or can be ordered through online shopping at http://www.jaypeebrothers.com/ or at +91 11 32558559