Law and Medicine Questions 81 to 99 (3 Marks)

Law > Medical Jurisprudence > Law and Medicine Questions 41 to 60

Q81 Explain Appropriate Authority under the Transplantation of Human Organs Act.

The Central Government is empowered by the Act to appoint, by notification one or more officers as the Appropriate Authority for the purposes of the Act, for each of Union Territories. Likewise, every State must by notification, appoint one or more persons as the Appropriate Authority of that State.

Functions of Appropriate Authority:

Section 13 of the Act gives functions of the Appropriate Authority under the TOHO Act, 1994.

to grant registration under sub-section (1) of section 15 or renew registration under sub-section (3) of that section;
to suspend or cancel registration under sub-section (2) of section 16;
to enforce such standards, as may be prescribed,— (A) for hospitals engaged in the removal, storage or transplantation of any human organ: (B) for Tissue Banks engaged in recovery, screening, testing, processing, storage and distribution of tissues;
to investigate any complaint of breach of any of the provisions of this Act or any of the rules made thereunder and take appropriate action;
to inspect Tissue Banks periodically;
to inspect hospitals periodically for examination of the quality of transplantation and the follow-up medical care to persons who have undergone transplantation and persons from whom organs are removed; and
to undertake such other measures as may be prescribed

Q82 Explain the Medico-legal aspects of road accidents.

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. Most of the road users are quite well aware of the general rules and safety measures while using roads but it is only the laxity on part of road users, which cause accidents and crashes.

The Investigation of the accident must be done as soon as possible after it occurs because it helps in observing the conditions as they were at the time of the accident. Investigation officer may take help from an automobile expert and a medical expert. Establishment of facts includes visiting site of accident, examination of mechanical damages. If the driver of the vehicle is survived, his medical examination is mandatory. It should be ascertained if he was under the influence of alcohol or drugs at the time of accident. Medical examination of the victims must be conducted immediately. Medical examination includes noting of injuries suffered, place, angle, extent, and depth of injury. It also includes noting of blood stains on body, tears, grease marks, mud and soil stains, etc.

In case of accidental death, an autopsy (post mortem) is often performed to ascertain the cause of death. An autopsy or post-mortem is a surgical procedure involving a thorough examination of the corpse by dissection to determine the cause and manner of death. The procedure is performed by specialist pathologists.

Q83 What is medical negligence and explain contributory negligence?

A tort is a residuary civil wrong. Duties in tort are fixed by the law and such duties are owed in rem or to the people at large generally. Such wrongs can be remedied by filing for unliquidated damages. Negligence is a tort. A negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.

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.

A person is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man he might be hurt himself. In his reckonings he must take into account the possibility of others being careless. When plaintiff contributes to the incident his role should be duly regarded when liability is determined and quantum of damages is assessed. Contributory negligence is a good defence available to doctor in all claims of civil nature. Contributory negligence of a patient is any unreasonable conduct or absence of ordinary care on the part of the patient or his personal attendant which combined with the doctors’ negligence contributed to the injury complained of as a direct proximate cause and without which the injury would not have occurred

Contributory negligence include

Failure to give the doctor accurate medical history
Failure to cooperate with his doctor in carrying out all reasonable and proper instruction
Refusal to take the suggested treatment
Leaving the hospital against the doctors advise
Failure to seek further medical assistance if symptoms persist

Q84 What are the rights of a registered medical practitioner?

Medical practitioner has following rights:

Right to choose his patients
Right to use his titles and qualifications
Right to receive and recover fees and expenses
Right to get appointed in Hospitals and Institution
Right practice medicine and dispense medicine
Right to issue medical certificates
Right to Give Evidence
Right to remove organs and tissues from a dead body
Right to perform medical termination of pregnancy
Right to disclose confidential information in exceptional circumstances
Right to disclose and report injuries
Right to access information
Right not to be unfairly discriminated
Right to have political views
Right to refuse to conduct an unlawful bodily search or seizure

Q85. Write a short note on 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.

Q86. Explain privileged communication and confidentiality in a doctor-patient relationship with case study.

If patient want to get a good treatment from a doctor he is expected to disclose all the details of his illness. Such information may be private and of personal nature and patient may like to disclose it to doctor only and not to others even not to relatives or friends. Now there is obligation on doctor not to disclose such information without obtaining prior permission from the patient. This expectation in medical field is called confidentiality in medical practice. If doctor fails to comply, the patient may ask for compensation on plea of breach of confidentiality. If assurance of confidentiality was not available, a patient hesitates to confide in his doctor, who in turn would not be able to give the best diagnosis or treatment.

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. Sections 122 to 129 of the Indian Evidence Act, 1872 contain provisions related to privileged communication.

Sometimes public interest overrides the concept of confidentiality. If a patient is suffering from contagious disease and it is harmful to society as a whole. In such case the doctor has a duty to inform about the disease to health authorities in public interest.

In Mr. X v. Hospital Z, AIR 1999 SC 495 case, the apex court when commenting on infectious diseases held that in special circumstances, public interest would override the duty of confidentiality, as where there is an immediate or future health risk to the community or to a specific person

Q87. Discuss the medico-legal aspects of sexual assaults.

Section 375 of IPC defines the term “Rape”.

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

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.

Q88. Explain the Nuremberg Code.

The Nuremberg Code aimed to protect human subjects from enduring the kind of cruelty and exploitation the prisoners endured at concentration camps. The 10 elements of the code are:

Voluntary consent is essential
The results of any experiment must be for the greater good of society
Human experiments should be based on previous animal experimentation
Experiments should be conducted by avoiding physical/mental suffering and injury
No experiments should be conducted if it is believed to cause death/disability
The risks should never exceed the benefits
Adequate facilities should be used to protect subjects
Experiments should be conducted only by qualified scientist
Subjects should be able to end their participation at any time
The scientist in charge must be prepared to terminate the experiment when injury, disability, or death is likely to occur

Q89. Explain 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.

Q90. “At a private nursing home in Beed run by a well-known gynaecologist, some patients are discreetly informed about the gender of the foetus by use of colour code on payment of heavy fees. Briefly highlight the relevant legal pro visions applicable.

According to Section 2 (o) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, “sex selection” includes any procedure, technique, test or administration or prescription or provision of anything for the purpose of ensuring or increasing the probability that an embryo will be of a particular sex. Under Section 6 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, any test and technique to determine the sex of foetus is illegal.

According to Section 6 of the Act,

(a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus;

(b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus;

Q91. “Disha, aged 35, suddenly falls unconscious on a staircase of her building. Her neighbours immediately rush her to a hospital, where at the time of admission she is still unconscious. Explain the concept of Informed Consent and Implied Consent. Which of these will be applicable in the instant case? Explain with reasons.

Doctor-patient relation has all the requisites of a valid contract. Hence Doctor-Patient relation is a Contractual Relationship. According to Section 13 of the Indian Contract Act, ” two or more persons are said to be in consent when they agree upon the same thing in the same sense (Consensus-ad-idem). The consent may be expressed or implied. Implied consent occurs through the actions or conduct of the patient rather than direct communication through words. For example, informed consent can be implied from patient’s nodding of the head, or by them showing up at the agreed upon time for surgery. 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.

Disha at the time of admission to hospital is unconscious. She herself cannot give informed consent. 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.

Q92. What is meant by Hospital under the Transplantation of Human Organs Act,1994?

According to Section 2(g) of the Transplantation of Human Organs and Tissues Act, 1994, “hospital” includes a nursing home, clinic, medical centre, medical or teaching institution for therapeutic purposes and other like institution.

Q93. “What is a clinical trial?

A clinical trial is a systematic study to generate data for discovering or verifying the clinical and pharmacological profile (including pharmacodynamic and pharmacokinetic) or adverse effects of a new drug on humans.

Requirements of clinical trials are

Fully informed consent of all participants
Full information to be given about the experiment, including its benefits and risks
Attentions are to be drawn to possible alternatives
If clinical trial involves a pregnant woman, extra care and protective measures must be taken

Clinical trial is the only way of establishing the safety and efficacy of any drug before its introduction in the market for human use and is preceded by animal trials where the efficacy and side effects are observed in animals and an estimated drug dose is established.

Q94. What is meant by Female Foeticide?

Female foeticide is the procedure of abortion to terminate a female foetus from the womb of the mother before taking birth after the sex recognition tests like an ultrasound scan. The census figures not only indicate the imbalance in the sex ratio, but it also indicates, the casual approach of society to all women. It is the cruellest on the part of society not to allow a female child to be born.

Major Reasons for Female Foeticide:

Patrilineal line of succession
Dowry system, violence against women
Low status of women
Preference for son due to financial security
Small family norm
Religious and social taboos
Misuse of diagnostic techniques.

Impact of Female Foeticide:

The sex ratio denotes the ratio of females to males in a specific region. As per the decennial Indian census, the Sex Ratio of India is 107.48. It means 107.48 males per 100 females in 2019.
It increases number of crimes against women

Q95. What is meant by Magic Remedy under the Drugs and Magic Remedies (Objectionable Advertisements) Act,1954?

According to Section 2(c) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, magic remedy‟ includes a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals.

Q96. Sumandevi, aged 85 who is bedridden for over 2 years at her home, is taken to a hospital. On admission, the doctor informs her family that she is brain-stem dead. Explain the concept of Brain Stem Death.

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.

Q97. What is Self-Regulation through Code of Conduct?

Self-regulation through a code of conduct in medical field refers to a doctor regulating his behaviour as a medical practitioner by complying with a code of conduct laid down by a recognized medical association or a peer group of doctors. After completion of medical studies, doctors take Hippocratic oath saying that they would serve society and observe ethical principles. During making decision in case involving medical negligence, correct line of treatment, the court can refer to the recommendation made by recognized bodies of doctors.

Students of medicine must be exposed to the professional ethics at the time of their regular education only. Even after graduation they should be trained through refresher course and seminars to keep them up to date on latest developments.

Q98. “Pushpa has undergone a surgery and is subsequently discharged from hospital. Thereafter, as she complains of excruciating pain, she is readmitted to the hospital. A surgical instrument is discovered at the operation site. Briefly state the relevant legal provisions and enumerate the legal recourses applicable to Pushpa.

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.

Q99. “A pedestrian is knocked down by a vehicle at a junction in a town. A group of people immediately rushed him to a nearby private hospital. The hospital administration refuses to provide treatment. Whether refusal is legally permissible? Cite relevant precedent.

The hospital administration cannot refuse to provide treatment in emergency cases. Hospital cannot insist on Prior filing of FIR with the police and then start treatment. First, immediate treatment or first aid must be given and then it is the duty of the hospital administration to inform the police about the possible accident or unnatural injuries suffered by the victim.

A physician attending the case is expected to exercise a reasonable prudent physician standard of care and offer that much of help as is possible under the circumstances.

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