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Dr Nikhil DatarMD DNB FCPS FICOG LLB DGO DHA
Gyneaecologist, Medico-legal Expert & Health Rights Activist
•Chairman Medico-legal cell Association of Medical Consultants•National Coordinator Medico-legal cell FOGSI.•Head Medico-legal wing Kay Legal Advocates.
Related to establishment Income tax Act.. Bio medical waste Disposal..
DC rules Related to medical profession
Criminal law Civil / Consumer law Professional ethics Human rights
Specific laws: MTP, PCPNDT,Organ Donation
Future Laws: ART Bill, Euthanasia, MTP Act
Criminal law, police procedures Civil law and procedures
Law : Negligence Law : Consent
Laws in making :MTP Act ( Niketa Mehta)Euthanesia ( Aruna Shanbhag )
tips
Consultant Gynaecologist at Nanawati hospital Mumbai
Director : Datar wellness group ( which runs two nursing homes in western suburbs of Mumbai)
PG teacher at R N Cooper Municipal Hospital Recipient : Commonwealth Fellowship award :
Worked with WHO on patient safety & reducing medical errors
Recipient: IFHHRO fellowship American Austrian foundation
Fought famous case along with his patient Niketa Mehta challenging the MTP Act Govt of India
Medico-legal consultant: Kay Legal Advocates
Nikhil Datar
Police ( criminal law) Advocate ( civil law) Medical council ( Professional
misconduct) Media ( TRP law) Ransacking the hospital / assaulting the
staff
Dr Nikhil D. Datar
1. Can I give a DC? Is PM
mandatory?
2. Should I inform police?
3. What to do if I get a “friendly
call” from PM room?
4. Will the police arrest me?
Dr Nikhil D. Datar
5 What will happen to the reputation?
6 What will the consumer court decide?
7 What is my indemnity cover?
8 Will relatives ransack the hospital?
Prevention of violence Damage and loss of property
Offence cognizable and non-bailable Imprisonment up to 3 years and fine up
to 50000 Rs Compensation twice the amount of
damage caused
Actus Non Facit REUM,NIsi Mens Sit Rea
Lord Macaulay (1833)
Dr Nikhil D. Datar
Offences against public health (chp XIV) Offences against human body - affecting life (s 299-s 311) - affecting unborn child (s 312-318) - hurt (s319-338) - wrongful restraint (s 339-348) - sexual offences (s375-377) Forgery (s 463) Defamation (s499-500) Fraudulent use of weights (chp XIII)
Dr Nikhil D. Datar
Lawful homicide Unlawful homicide - Culpable homicide (s 299) - MurderCan a doctor be charged for culpable homicide ?Mahadev Prasad Kaushik Vs State of UP (SC)
- Rash & Negligent Act (S 304 A)
Dr Nikhil D. Datar
Dr Nikhil D. Datar
If he If he knowsknows the cause of death the cause of death AndAnd
not otherwisenot otherwise
Dr Nikhil D. Datar
When cause of death is not known
When cause of death is known but………….
Dr Nikhil D. Datar
Death linked with abortion
Death on operation table or
post op 24 hours
Death related to medical
procedure
Dr Nikhil D. Datar
Death related to accidents or violence All deaths related to tubal sterilizations
(PM mandatory) When there is allegation of medical mis-
management
(source:J.K.Mason .Edition III)
Dr Nikhil D. Datar
This is a wrong equation
Dr Nikhil D. Datar
Informing the police “Panchnama” Handing over the papers
Dr Nikhil D. Datar
PM report
Opinion of police surgeon
FIR
Arrest
Dr Nikhil D. Datar
It is a cognizable and bailable offence
Dr Nikhil D. Datar
Surgery without consent Surgery on wrong patient or wrong organ Leaving mop or instrument inside Transfusing wrong blood Performing criminal abortion
(source:Medical Negligence & Compensation Edition II)
Dr Nikhil D. Datar
Before surgery
1. Check the consent2. Confirm the identity of patient and
nature of surgery3. Use the Checklist as a matter of
“ritual”4. Check the expiry of drugs (S 273-276) 5. Insist that the anaesthetist talks and
examines the patient before starting 6. Use the “life saver board”
Dr Nikhil D. Datar
Dr Nikhil D. Datar
“Presumption of innocence”
Burden of proof Degree of evidence Prosecution has to prove the need of penal remedy.
•Police ( criminal law)•Notice of advocate ( civil law)•Notice from medical council ( medical council)•Media ( TRP law)
Complaint Written statement Rejoinder Sur rejoinder
Laws and rules Text books Expert Evidence Guidelines from professional bodies
Nikhil Datar
Nikhil Datar
Consent Negligence
Violation of
“Right in Rem”
Duty imposed by law
Duty independent of consent
Violation of “Right in Personum”
Duty imposed by terms of contract
Consent important
Dr Nikhil Datar
Damages unliquidated
Limitation : from the date when damage is suffered
Damages well defined
Limitation: from the date of breach of contract
Dr Nikhil Datar
Law of torts
Competent to consent Capacity to consent
Dr Nikhil Datar
False Imprisonment Assault & Battery Mayhem
1. Fraud
2. Misrepresentation
3. Undue influence
4. Non voluntary
5. Not an “ informed consent”
Dr Nikhil Datar
Samira Kohli Vs Dr Prabha Manchanda (SC)
Capacity & competency to consent Voluntary On the basis of adequate information
Nature & procedure, its purpose, benefits and effects
Alternatives available Outline of substantial risks ( 10%) No need to explain remote risks ( 1-2%) Consequences of refusing the
prescribed treatment
Boalm’s test shall prevail
Consent for diagnostic procedure can’t be considered valid for therapeutic procedure even if there is physical or financial benefit
The exception to the above rule is “ life saving conditions”
Comprehensive consent can be taken before hand
Breech of duty Doing or not doing some thing
which a reasonable and prudent man would not do or do.
Legal duty must exist
Duty can be independent of contract
Damage should be caused (causa
causans)
Act must be below the “Standard of
reasonable care”
Dr Nikhil Datar
Boalm Vs Frien Health authority
“A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinarily competent man exercising that particular art." (Charlesworth & Percy, ibid, Para 8.02)
Criminal negligence Civil negligence Mistake Error Misfortune/ “Act of God”
Jacob Mathew Vs State of Punjab
Degree of damage Vs degree of negligence
Mens rea ( reckless state of mind though not intention to cause harm) for criminal negligence
Conviction beyond doubt Vs Preponderance of probability
Section 304 A to be read should be read as qualified by the word “ gross”
Lord Diplock in R Vs Lawrence: “Rashness of such a degree that injury was most likely imminent”
Government to form rules and guidelines The IO.. obtain an independent and competent
medical opinion preferably from a doctor in government service qualified in that branch of medical practice after applying Bolam's test.
A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary.
Are doctors capable of handling this?
Jacob Mathew vs State of Punjab Martin D souza vs Mohd Isfaq V krishnarao vs Nikhil super speciality
Hospital
MTP Act: Dr Nikhil Datar VS Govt of India
Euthanesia: Pinky Virani Vs Govt of India
• My patient Niketa Haresh Mehta • 24 weeks pregnant.. Found two major
heart anomalies of the fetus.. Opinions of 6 reputed doctors ( cardiologists and pediatricians)… “substandard quality of life and mortality”
• Patient wanted termination of pregnancy. • I refused “Illegal termination” and patient
refused to change the doctor thus I became the principal petitioner and invoked the writ jurisdiction
Section3 (2) (b) :-There is substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. -The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health(This section allows the termination only till 20 weeks of pregnancy.)
Beyond 20 weeks, termination is allowed :if immediately necessary to save the life of
the pregnant woman.
The word “substantial risk” is very vague ... it is open to different interpretation by courts of law and may lead to endless trouble for doctor concerned. Efforts should have been made to better define the risks.
--- Dr H N Shivpuri (1967)
• Significant improvement in diagnostics as compared to therapeutics.
• The doctors can only give the statistical prognosis but not individualistic prognosis.
• Late termination has medically became very safe.
• Every case will be different and decisions intensely personal based on the values, beliefs of the person.
When does the life begin? How to choose between sanctity &
quality of life? How to determine the “best interest” of
the foetus who can’t speak or can’t be even examined?
How does one see this in the light of poor country & self funded health care?
The Nuffield Council on Bioethics is funded jointly by the Medical Research Council, the Nuffield Foundation and the Wellcome Trust.
Health economist, disability commissioner, anthropologist, Reputed doctors from fields of Obstetrics, neonatology, Lawyers, ethicist, Rights activists.
We regard the moment of birth, which is straightforward to identify, and usually represents a significant threshold in potential viability, as the significant moral and legal point of transition for judgements about preserving life.
--- Working party
When the baby’s life results in a level of irremediable suffering , there is no ethical obligation to act in order to preservethat life.- Working party
It is immoral that the pregnant woman acts wrongly in harming her future child by acting neglectfully or in a manner that is wilfully harmful, as happens occasionally,
It would be wrong to force a woman to behave rightly by submitting to medical or surgical interventions to
benefit a foetus against her will.
It is in the “ best interest “ of the fetus to survive or not, to avoid “ intolerable life” and best quality of life.
It is reasonable to consider parents interests socio economic issues as well.
• FIGO Committee for The Study of Ethical Aspects of Human Reproduction and Women’s Health
“The Committee agreed that a woman carrying a severely malformed fetus had the ethical right to have her pregnancy terminated.
The qualification ‘severe’ is used in this context to indicate
malformations that are either potentially lethal or whose nature is
such that even with medical treatment they are likely, in the view of
the parents and their medical advisors, to result in unacceptable
mental and/or physical disability.”
Hon’ble Bombay High court refused the permission.
I am in appeal at the SC. Union Health minister appointed a
committee.
Facts of the case Court recorded the reasons for going
into the issue though it was not amounting to violation of fundamental rights
No to active euthanesia Yes to passive euthanasia provided:
next keen approachesDoctors panel approvesTwo judge panel of the HC allows
legal validity of “ Do not resuscitate” Leaving will
As it is , humans are imperfect.Law and medicine, both deal with human beings & are imperfect sciences. The set of another human beings ( doctors & judges) administer these imperfect sciences.
Thus it is perfect that law related to medicine will be more imperfect and admixed with complex issues.
Nikhil Datar