Law and Medicine Questions 21 to 40 (3 Marks)

Law > Medical Jurisprudence > Duties of Medical Practitioner

Q21. Quote the purpose of Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994.

The purpose of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 are as follows:

To prevent misuse of Pre-conception and Pre-natal Diagnostic Techniques for sex determination leading to female feticide and arrest the declining sex ratio in India.
To ensure the implementation of all promotional schemes for girl children at the district level.
To Monitor and evaluate the implementation of the PCPNDT Act through community participation.
To ensure accountability of implementing agencies through monitoring implementation of the Act through community participation.
To track pregnancies, MTPs, and birth registration with the help of Anganwadi workers, ASHAs.
To identify violators of the Act through conducting detailed audits of form ‘F’ filled in for the pregnant women in the clinics.
To develop a national, state, and district annual Plan.

Q22. An octogenarian couple have made a petition to Government for granting them permission for active euthanasia. Quote landmark Indian case dealing with euthanasia and legal status of euthanasia in India.

An octogenarian couple means that both the husband and wife are of age between 80 and 89. Euthanasia is described as the deliberate and intentional killing of a person for the benefit of that person in order to relieve him from pain and suffering. The term ‘Euthanasia’ is derived from the Greek words which literally means “good death” (Eu= Good; Thanatos=Death). Euthanasia is defined as the act of bringing the death of a person (patient) for the purpose of relieving the patient’s intolerable and incurable suffering. Typically, the physician’s motive is merciful and intended to end suffering. In voluntary euthanasia, a consent from the patient is taken. In non-voluntary euthanasia, the consent of patient is unavailable due to some reason.

In active euthanasia, the death of patient is brought directly by giving him a lethal dose of poisonous drug. In passive euthanasia, the life supporting system to the patient is discontinued and ultimately patient dies. In Aruna Shanbaug v. Union of India, the Supreme Court opposed active euthanasia but has given nod to passive euthanasia. The apex court also observed that right to life does not include right to die. Thus the request of the couple of active euthanasia is not permitted under the light of Supreme Court decision.

Q23. What are the tests conducted by doctors to prove sexual offences?

Section 53(5) of the CrPC talks about examination of a female victim, which should be done by or under the supervision of a female doctor. Section 164(A) CrPC explains the legal requirements for medical examination of a victim of rape. One of the main elements of this is that the consent of the victim is mandatory and should be part of the report. It provides for a medical examination of the victim of rape by a registered medical practitioner. It also provides that when no woman doctor is available, there is no bar against a male doctor carrying out the examination, if the victim consents. Though getting the examination done by a woman doctor is ideal, the law does not mandate it, keeping in mind that a medical examination should not be postponed because of an extreme situation such as the want of a female doctor. The same section mandates that a medical examination must be carried out within 24 hours of the police receiving information, thus recognising this as a medico legal emergency and putting a timeframe for the investigating officer.

A SAFE kit developed in Chicago in the mid-1970s by Louis Vittulo, consists of small boxes, swabs, microscope slides, sterile containers, and plastic bags for collecting and storing evidence such as clothing fibers, hairs, saliva, blood, semen or body fluid from lips, cheeks, thighs, and vagina.

Q24. Give any three functions / activities of Red Cross.

The main functions of the Red Cross are:

To extend relief and help to the victims of any calamity – fire, flood, famine, earthquakes, etc
To procure and supply blood for the victims of war and other calamities
To extend all possible first-aid in an accident
To educate people in accident prevention
To arrange for ambulance service in all emergencies
To look after maternal and child welfare centres
Train midwives.

Q25. What do you mean by “Golden Hour”?

A traffic or road accident is defined as an accident involving at least one vehicle on a road open to public traffic in which at least one person is injured or killed. The main cause of accidents and crashes are due to human errors.

The ‘Golden Hour’ is the first hour after the Trauma. If proper and timely first aid is given, road accident victims have a higher chance of survival. Prompt action may also reduce the severity of the injuries. Many deaths and impact of injuries can be prevented with First Aid if causalities are treated immediately. One of the misconceptions about road accidents death is that most of them happen due to sever injury and loss of blood. But reality is that most common cause of death in road accidents due to loss of oxygen supply. Normally it takes less than four minutes for a blocked airway to cause death. It is said that these four minutes are crucial. It is not always possible that proper medical care reaches the victim within an hour. In that case the passer-by, onlookers and other people involved can provide the first aid to serious victims.

Q26. A Doctor was negligent while operating his patient for transplantation of kidney. As an Advocate of your client, how you will prove Doctor’s negligence when you have approached Consumer Commission under Consumer Protection Act, 1986?

Medical Negligence basically is the misconduct by a medical practitioner or doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. Medical negligence has caused many deaths as well as adverse results to the patient’s health. Some examples of medical negligence are as follows:

improper administration of medicines.
performing the wrong or inappropriate type of surgery.
not giving proper medical advice.
leaving any foreign object in the body of the patient such as a sponge or bandage, etc. after the surgery.

In law, a patient must establish three elements in order to succeed in an action for medical negligence, which are as follows:

That the medical practitioner owed the patient a duty of care.
That the medical practitioner was in breach of that duty.
That the patient suffered injury / damages as a result of the breach

Q 27. What do you mean by “informed consent”?

Informed consent is defined as voluntary acceptance by a competent patient of a plan for medical care after physician adequately discloses the proposed plan, its risks and benefits, and alternative approaches. This requires a process of effective communication and education between the physician and patient. Informed consent is a process with the elements of autonomous authorization, free from coercion or manipulation, decision-making capacity, disclosures to the patients, and comprehension.

There are four major components of informed consent:

That the patient has the capacity to make the decision.
The medical provider discloses information on the treatment, test, or procedure in question. This includes explaining the expected benefits and risks, as well as the probability of these benefits and risks occurring.
The patient must comprehend the information told to them.
The patient must voluntarily give their consent, without any coercion from the healthcare professional.

The informed consent may be express or implied. Before the procedure, the patient / patient’s next keen has to complete and sign a consent form. This form is a legal document that shows their participation in the decision and your agreement to have the procedure done. In emergencies, when a decision must be made urgently, the patient is not able to participate in decision making, and the patient’s next keen is not available, physicians may initiate treatment without prior informed consent. In such situations, the physician should inform the patient/the next keen at the earliest opportunity and obtain consent for ongoing treatment in keeping with these guidelines.

Q28. Quote any three principles to be followed by Health Workers.

The Hippocratic Oath is a sworn agreement made by physicians when they become doctors. It isn’t a law, but rather is a guiding principle for doctors. It was written by the Greek physician Hippocrates. It has been rewritten multiple times. Some use the original Greek oath, while others use the Declaration of Geneva or the Oath of Maimonides, both of which reference the original. Whichever version is used, virtually all medical schools use an oath of some kind.

The oath begins with an agreement by practitioners to openly share knowledge with the physicians that follow them, for the sake of the profession.
Next it swears that treatments will be used for the benefit of the ill and not for harm. That’s the ‘do no harm’ part.
Next, the oath says that doctors will allow specialists to complete surgeries, being aware of their own limits, and that they will not use their position to complete sexual acts or otherwise take advantage of their patients.
Finally, the oath talks about doctor-patient confidentiality, requiring that doctors do not reveal details of their meetings, conditions, or treatments.

Q29. Discuss in short any two varieties of Medical Profession in India. (Any Two)

Ayurveda

Ayurveda often referred as “the mother of all healing”, is an ancient Indian system of healing. It is 5000 to 10000 years old. Reference of this system can be seen in the Rigveda and the Atharva Veda. “Ayur” means life and veda means “knowledge”, thus “Ayurveda” means knowledge of life. The medicines are mainly plant based.

Diagnosis in Ayurveda takes in the form of general physical examination, involving examination of the pulse, tongue, eyes, vein sans faeces. Regulation of diet as a therapy plays an important role in Ayurvedic treatment.

Major books on this system are Charak Sanhita and Sushruta Sanhita. This system has holistic approach of treating the patient. “Charak Sanhita” is a massive compilation containing several chapters on therapeutic and internal medicine. It contains reference to more than six hundred types of medications of plant, animal, and mineral origin. “Sushrut Sanhita” is an ancient scholarly work dedicated to surgery. In the whole world this is the oldest compilation on surgery. The book is written in the sixth century B.C. by an ancient Ayurvedic scholar “Sushruta”. The book contains descriptions of surgical procedures which are relevant even today.

Doctrine of Ayurveda:

Body is made up of Pancha Mahabhootas: Prithvi (earth), Jal (water), Agni (fire), Vayu (air) and Akash (ether). There are three doshas in the body: Tridosha: The Vata (ether + air), Pitta (fire) and Kapha (earth + water) and Trigunas: the Satva, Rajas and Tamas, which are the psychological properties

Any imbalance in above factors due to internal and external factors causes disease and restoring equilibrium through various techniques, procedures, regimes, diet and medicine constitute treatment. Over the years, Kshar Sutra and Panchakarma therapies of Ayurveda have become very popular among the public.

2) Homeopathy:

The systematic foundation of Homeopathic techniques was made by German physician Dr, Samuel Hahnemann. The word homeopathy is derived from two greek words, ‘homois’ means similar and ‘pathos’ means sufferings. Homeopathy is based on following three principles:

The Law of Similars: Main principle is Similia Similibus Curantur meaning likes are cure by likes or likes be treated by likes.
The Law of Minimum Dosage: In Homeopathy patient is given minimum dose so that toxic effect of dose can be eliminated. The dose is to stimulate internal immune system.
The Law of Single Remedy: Homeopathy will try to treat patient by using single remedy, which is the most similar to the symptoms shown by the patient.

Homeopathy adopts holistic approach towards the patient. Hence Homeopathy may give two different medicines to two different patients suffering from the same problem. Homeopathy uses animal, plant, mineral and synthetic substances in the preparation of medicines.

3) Allopathy:

The system of medical practice which treats disease by the use of remedies which produce effects different from those produced by the disease under treatment. The term “allopathy” was coined in 1842 by C.F.S. Hahnemann to designate the usual practice of medicine (allopathy) as opposed to homeopathy, the system of therapy that he founded based on the concept that disease can be treated with drugs (in minute doses) thought capable of producing the same symptoms in healthy people as the disease itself.

Allopathy is also known as Biomedicine or Western Medicine. Treatment is done by medication, surgery, radiation, or and other therapies and procedures. The criticism to the system is that allopathic medicines like pills and injection do not cure disease, they merely mask the symptoms of disease.

Doctrine of Allopathy

It believes that germs, bacteria, and viruses that causes disease are destroyed when drugs and chemical agents are administered in the patient. Modern diagnostic methods like X-rays, sonography, ECG, instruments and techniques like use of radioisotopes are used. Millions of dollars are spent annually on research and development of allopathic drugs. Main drugs used include, antipyretics, antibiotics, antifungal, antibacterial, antihistamine, antifertility, narcotics, sulpha drugs, etc. Allopathy has had the most evidence-based scientific research, data collection, and drug testing. It’s also the most regulated by a neutral party like the Food and Drug Administration (FDA) or the Indian Medical Association.

4) Siddha Therapy:

It is 5000 year old system of medicines. It is based on the similar principles of Ayurveda. The word “siddha” means “achievement” and practitioner of this system of treatment were called “Siddhars”. This system is said to be developed by many Siddhars. Agatsya was the first Siddhar. It is mostly practiced in South India, particularly in Tamil Nadu. April 14 is celebrated as World Siddha Day.

This system treats the individual as a microcosm of the universe. It believes that the human body is made up of five tatvas or elements namely: earth, water, air, fire, and space. It considers food as basic building block of human body, which gets processed into humors, tissues and waste matter. The equilibrium of humors contribute to the health of a person and its imbalance or disturbance leads to disease. It puts emphasis on the body, mind, and spirit and work for harmony of the human body. It is particularly effective in allergy, skin problems, arthritis, and general debility.

The Siddha system of Medicine emphasizes on the patient, environment, age, sex, race, habits, mental frame work, habitat, diet, appetite, physical condition, physiological constitution of the diseases for its treatment which is individualistic in nature Diagnosis of diseases are done through examination of pulse, urine, stool, eyes, skin, study of voice, colour of body, tongue and status of the digestion of individual patients.

5) Yoga:

Derived from the Sanskrit word ‘yuj’ which means ‘to unite or integrate’, yoga is a 5,000-year-old Indian body of knowledge. Yoga is all about harmonizing the body with the mind and breath through the means of various breathing exercises, yoga poses (asanas), mudras (hand positions) and meditation (dhyana).

There are eight limbs of yoga namely, Yam, Niyam, Asana, Pranayama, Pratyahara, Dhara, Dhyana, Samadhi. Maharishi Patanjali who is regarded as the Father of Yoga, compiled in his book called “Patanjali Yog Sutra”. Most of the Asnas work on the principle of stretching a body. June, 21 every year is celebrated as the International Yoga day

Yoga is an Art and Science of healthy living. It is a spiritual discipline based on an extremely subtle science, which focuses on bringing harmony between mind and body. The holistic approach of Yoga is well established and it brings harmony in all walks of life and thus, known for disease prevention, promotion of health and management of many lifestyle –related disorders. Today, Yoga is popular across the globe, not just because of its efficacy in the management of some diseases, but also of its strength in providing relief to the practitioner, from mental and emotional distress and providing a feeling of well-being. Hence, now-a-days Yoga is being practiced as part of healthy life style across the globe.

Q30. What is the ratio decidendi in Indian Medical Council V/s V.P. Shanta AIR 1996 SC 550.

Indian Medical Council v. V.P. Shanta AIR 1996 SC 550:

Issues:

Whether a medical practitioner, hospital, or nursing home can be regarded as rendering service under Section 2(1)(o) of the Consumer Protection Act, 1986?
Under what circumstances can the service render at a hospital/nursing be regarded as service under Section 2(1)(o) of the Consumer Protection Act, 1986?

The ratio decendi of the case is medical negligence. Medical negligence is basically the misconduct by medical practitioner by not providing enough care resulting in breach of their duties and harming the patients which are consumers. They also argued whether this was the case of negligence in Torts or IPC, later on it was decided that any negligence in medical field would be determined under CPA, 1986. The Supreme court also stated that a medical practitioner, nursing home or a hospital can be regarded as rendering service under CPA, 1986.

As a result of this judgement, medical profession has been brought under the Section 2(1) (0) of CPA , 1986 and also , it has included the following categories of doctors/hospitals under this Section:

All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.
All hospitals having free as well as paying patients and all the paying free category patients receiving treatment in such hospitals.
Medical / Dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.

Q31 Role and functions of the proposed national medical commission

The Role of the National Medical Commission are

To improve access to quality and affordable medical education,
To ensure availability of adequate and high-quality medical professionals in all parts of the country;
To promote equitable and universal healthcare that encourages community health perspective and makes services of medical professionals access to all the citizens;
To encourages medical professionals to adopt latest medical research in their work and to contribute to research;
To objectively assess medical institutions periodically in a transparent manner;
To maintain a medical register for India;
To enforce high ethical standards in all aspects of medical services;
To have an effective grievance redressal mechanism.

Functions of the National Medical Commission:

lay down policies for maintaining a high quality and high standards in medical education and make necessary regulations in this behalf;
lay down policies for regulating medical institutions, medical researches and medical professionals and make necessary regulations in this behalf;
assess the requirements in healthcare, including human resources for health and healthcare infrastructure and develop a road map for meeting such requirements;
promote, co-ordinate and frame guidelines and lay down policies by making necessary regulations for the proper functioning of the Commission, the Autonomous Boards and the State Medical Councils;
ensure co-ordination among the Autonomous Boards;
take such measures, as may be necessary, to ensure compliance by the State Medical Councils of the guidelines framed and regulations made under this Act for their effective functioning under this Act;
exercise appellate jurisdiction with respect to the decisions of the Autonomous Boards;
lay down policies and codes to ensure observance of professional ethics in medical profession and to promote ethical conduct during the provision of care by medical practitioners;
frame guidelines for determination of fees and all other charges in respect of fifty per cent. of seats in private medical institutions and deemed to be universities which are governed under the provisions of this Act;
exercise such other powers and perform such other functions as may be prescribed.

Q32. Privileged communication in medical cases

A privileged communication is a conversation between two parties that is legally classified as a private discussion. This discussion is legally protected, and so cannot be disclosed to third parties. The concept is most commonly associated with a discussion between a doctor and a patient. It is called so because whatever information that is disclosed in this kind of setting is protected i.e., the courts cannot force the individual to disclose the details of such communication.

Sections 122 to 129 of the Indian Evidence Act, 1872 contain provisions related to privileged communication. These provisions deal with what is called absolute privilege, and apply only to the specific instances covered by the sections. Communication between a doctor and his patient does not enjoy absolute privilege, but can be said to have relative privilege. The communication between a doctor and his patient can be communicated to other only in bona fide manner and abiding the rules of confidentiality and exceptions to it.

If doctor is sued for medical negligence by the patient, then the doctor may disclose information to the Court similarly if a doctor sues patient for non-payment of fees, the doctor can disclose information to the Court. If Court orders to produce medical reports containing confidential information, then the doctor is supposed to submit it to the Court.

Q33. Civil and criminal negligence in medico-legal cases:

improper administration of medicines.
performing the wrong or inappropriate type of surgery.
not giving proper medical advice.
leaving any foreign object in the body of the patient such as a sponge or bandage, etc. after the surgery.

Negligence is a tort. The concept of mens rea is not applicable in torts. If doctor’s rash or negligent act endangers human life or personal safety of his patient, he can be tried for criminal liability.

Civil Liability, i.e., monetary compensation can be imposed under the general law by pursuing a remedy before appropriate Civil Court or Consumer forums. There are various degrees of negligence and a very high degree of Gross Negligence is required to be proved beyond reasonable doubt for certain acts to be made punishable under the provisions of Criminal Law. As per existing Laws, cases for medical negligence caused by Doctors can be filed under following enactments at the option of the Patients:

A complaint for deficiency of service can be filed before the Consumer Forum under the Consumer Protection Act, 1986.
A Civil Suit for the Recovery of Damages in the appropriate Civil Court.
A complaint under Section 304–A of the Indian Penal Code, 1860 in the appropriate Criminal Court.
A complaint to the Medical Council of India or The State Medical Council for de registration of a Doctor on account of negligence.

Q34. Determination of brain stem death under the transplantation of human organs act, 1994.

Brain stem is the “stalk of the brain” which connects the spinal cord to various parts of the brain. It sends messages to the rest of your body to regulate balance, breathing, heart rate and more. It is very vital part of the body. Section 2(d) of the Transplantation of Human Organs and Tissues Act, 1994, defines brainstem death as ““brain-stem death” means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3 of the Act.”

Identification of brain stem death carries important prognosis for the survival of the patient, because the heart may keep on beating for few days after brain stem death, or even for weeks if the patient is in the Intensive Care Unit of hospital with all forms of medical and cardiac support. The person cannot perform fundamental work of an organism. The person is practically dead but may have heart beat and such person may still able to breathe. Such brain stem death must be certified by a Board of Medical Expert referred to in Section 3(6) of the Act. The Board should contain

the registered medical practitioner in charge of the hospital in which brain-stem death has occurred;
an independent registered medical practitioner, being a specialist, to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority;
a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority: Provided that where a neurologist or a neurosurgeon is not available, the registered medical practitioner may nominate an independent registered medical practitioner, being a surgeon or a physician and an anaesthetist or intensivist subject to the condition that they are not members of the transplantation team for the concerned recipient and to such conditions as may be prescribed;
the registered medical practitioner treating the person whose brain-stem death has occurred.

Q35. Disaster management preparedness in case of industrial disasters

A disaster is a catastrophic situation in which suddenly, people are plunged into helplessness and suffering and, as a result, need protection, clothing, shelter, medical and social care and other necessities of life. The Disaster Management Plan is aimed to ensure safety of life, protection of Environment, protection of installation, restoration of production and salvage operations in this same order of priorities.

The disaster management preparedness plan in case of industrial disasters is given as follows:

To constitute Disaster Management Committee under senior officer not below the rank of General Manager
To identify potential hazards areas in the layout map
To use model to predict hazards impact in the surrounding areas in form of pool-fire or gas leakage
To predict degree of burns and distance of the risk zone by using model
To evacuate the area within risk zone
To localize the emergency and if possible, eliminate it
To minimize the effects of accidents on people and property
To take remedial measures in the quickest possible time to contain the incident and control it with minimum damage
To mobilize the internal resource and utilize them in the most effective way
To get help from the local community and government official to supplement internal manpower and resources
To minimize the damage in other sections
To keep the required emergency equipment in stock at right places and ensure that they are in working condition
To keep the concerned personnel fully trained in the use of emergency equipment
To give immediate warning to the surrounding localities in case of emergency situation arising
To mobilize transport and medical treatment of the injured
To educate the public in the surrounding village regarding hazards
To arrange treatment of causalities
To safe guard the people
To identify the causalities and communicate to persons known to them • To render necessary help to concerned
To rehabilitate area affected
To provide information to media and government agencies

Q36. Medical malpractices

Chapter 6 of the Code of Ethics Regulations, 2002 contains a list of acts and practices which are regarded as unethical practices or medical malpractices on the part of physicians. Some of the unethical practices are:

All forms of advertisements by doctors are banned. To advertise in any manner to invite attention of general public to him or to his professional position, skill, qualifications, achievements, attainments or honours is medical malpractice.
A physician giving to any person any approval, recommendation, endorsement, certificate, report or statement with respect to any drug, medicine, surgical article, for use in connection with his name, signature, photograph in any form for advertisement is a medical malpractice.
A physician opening and running a shop for medicine or medical surgical appliances is a medical malpractice.
The physician cannot aid or abet torture or be a party to infliction of mental or physical trauma or concealment of torture inflicted by some other person or agency in clear violation of human right.

Q37. Medico-legal aspects of sexual assault cases

Section 53(5) of the CrPC talks about examination of a female victim, which should be done by or under the supervision of a female doctor. Section 53A of the CrPC provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape.

A detailed medical examination is to be carried out by a registered medical practitioner employed in a hospital run by government or local authority without delay. A “reasoned” report be prepared recording the name and address of the accused, the person by whom he was brought, the age of the accused, marks of injury if any, a description of materials collected from the accused for DNA profiling, etc.

Section 164(A) CrPC explains the legal requirements for medical examination of a victim of rape. One of the main elements of this is that the consent of the victim is mandatory and should be part of the report. It provides for a medical examination of the victim of rape by a registered medical practitioner preferably woman within 24 hours of incidence of assault.

Q38. Doctor-patient contractual relationship

Following are the essentials of any contract:

Proposal and Acceptance: Patient goes to doctor, seeking treatment for illness (Proposal). Doctor gives him an appointment and accepts him as a patient (Acceptance)
Competencies of the Parties: According to the Contract Act, contracting parties should be major, and of sound mind. If patient is minor, the doctor is entering in contract with parents or guardians of minor.
Free Consent: Here parties agree on the same thing in the same sense and the consent is not caused by coercion or undue influence or fraud or misrepresentation or mistake.
Lawful Consideration and Object: In Doctor-Patient contract both the consideration and object are lawful. There is no unlawful in the treatment of a patient.
The agreement should not be expressly prohibited by Ss. 27 to 30 of the Indian Contract Act: The Contract between patient and Doctor is not prohibited by these provisions.

Thus, all the requirements of valid contract are satisfied. This explains Doctor-Patient Contractual Relationship.

Case Laws: Everett v. Griffiths, Morris v. Winsburry White, Edwards v. Mullan.

Q39. Clinical trials on prisoners

Clinical trials are a type of research that studies new tests and treatments and evaluates their effects on human health outcomes. People volunteer to take part in clinical trials to test medical interventions including drugs, cells and other biological products, surgical procedures, radiological procedures, devices, behavioural treatments and preventive care.

Every clinical trial requires, inter alia, the following:

Fully informed consent of participants;
Full information to be given about the experiment, including its benefits and risks;
Attention is to be drawn to possible alternatives
If the clinical trial involves a pregnant woman, extra care and protection to be taken safeguarding the woman and the child.

But these principles were violated during World War II in Germany. It was found that thousands of experiments were conducted at random, mostly by unqualified persons, under revolting physical conditions. No adequate scientific reason was given for causin unnecessary suffering, injury and agony to the subjects, who went through torture, extreme pain and permanent injuries. The inmates of the German concentration camps used in such experiments were prisoners of war or civilians who were imprisoned and forced to submit to human torture and barbaric experiments. There was no free consent from subjects. After end of the war, allied powers conducted series of trials in the city of Nuremberg.

Q40. Civil and criminal liability of doctors

Civil Liability:

Civil liability for negligence occurs when a person is said to omit to do something which a reasonable man would do when he is guided by the factors which originally regulate human conduct or when he does something which a prudent and a reasonable man would not do. The most common and potent basis of civil liability for medical practitioner cases is negligence. Thus, where a health care provider administers treatment to a patient negligently and injury is caused to the patient, he may sue for medical negligence against the medical practitioner for the injury suffered.

In law, a patient must establish three elements in order to succeed in an action for medical negligence, which are as follows:

That the medical practitioner owed the patient a duty of care.
That the medical practitioner was in breach of that duty.
That the patient suffered injury / damages as a result of the breach.

A complaint for deficiency of service can be filed before the Consumer Forum under the Consumer Protection Act, 1986 and a Civil Suit for the Recovery of Damages in the appropriate Civil Court. A monetary compensation can be imposed under the general law by pursuing a remedy before appropriate Civil Court or Consumer forums.

In Jaspal Singh v. Post Graduate Institute of Medical Education and Research 2000 (2) CPR 300 case, the patient, blood group was A+ was give n B+ blood on two different fays, and he died soon thereafter. Here medical negligence is clearly seen and in such case the maxim “Res ipsa loquitur” is applicable. The respondent was convicted of negligence.

Criminal Liability:

There are various degrees of negligence and a very high degree of Gross Negligence is required to be proved beyond reasonable doubt for certain acts to be made punishable under the provisions of Criminal Law. A complaint under Section 304–A of the Indian Penal Code, 1860 in the appropriate Criminal Court or a complaint to the Medical Council of India or The State Medical Council for de registration of the doctor on account of negligence can be made.

Provisions of Section 304A of the Indian Penal Code, 1860, are general in nature and do not provide specifically for “medical negligence.” Similarly, other general provisions of IPC, such as Section 337 (causing hurt) and 338 (causing grievous hurt), are also often deployed in relation to medical negligence cases.

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