MEDICAL LAW & By:

ETHICS Dr Aishwarya
 INTRODUCTION
Medical Jurisprudence- Study of law in relation to medicine
-It includes:
I. Doctor-patient relationship
II. Doctor-doctor relationship
III. Doctor-State relationship.
Ethics- signifies moral values
Medical ethics- moral principles for registered medical
practitioners in their dealings with each other, their patients
and state
Medical etiquette- conventional laws, customs of courtesy
CODES OF MEDICAL ETHICS
Medical profession is considered as a noble profession.
From ancient times, attempts have been made to regulate
the conduct of medical practitioners.
Such regulations are also called as ‘Code for Medical
Practitioner’.
The Hippocratic oath is earliest known code. The modern
version of Hippocratic oath is the “International Code of
Medical Ethics”.
Code proper and other laws are prescribed in India by the
“Indian Medical Council”.
 CODE FOR MEDICAL
PRACTITIONER
a. Hippocratic Oath: The Hippocratic Oath is traditionally taken by physicians,
in which ethical guidelines are laid out.
b. Declaration of Geneva: it is a revised version of the Hippocrates Oath
to a formulation of that oaths' moral truth. It was adopted by the General
Assembly of the World Medical Association (WMA) at Geneva in 1948 and
amended in 1968, 1984, 1994, 2005 & 2006.
c. Declaration of Tokyo: This was adopted in 1975 (amended in 2005 & 2006)
in WMA. It refers to the guidelines for doctors concerning torture,
degradation or cruel treatment of prisoners.
d. Declaration of Helsinki: The WMA originally developed this declaration in
1964 (amended in 1975). It refers to the ethical principles for medical
research involving human subjects, including research on identifiable human
material and data.
e. Declaration of Oslo: It was a statement by the WMA in 1970 on therapeutic
abortion and amended in 1983 & 2006.
 INTERNATIONAL CODE OF
MEDICAL ETHICS
This was first adopted by the 3rd General Assembly of the
WMA at London in October 1949.
Self
International code of medical ethics is solely based on Advertisement
Declaration of Geneva and framed as sets of duties of
doctor in general, to the sick and to each other.
Unethi
Duties of Doctor in General: cal
A doctor must always maintain the highest standards of Practic
professional conduct. es
A doctor must practice his profession uninfluenced by
Receiving Any
motives of profit. money other collaboration
than medical without
Any act/ advice which could weaken physical/ mental fees professional
resistance of a human being. independence

A doctor is advised to use great caution in divulging

discoveries or new techniques of treatment.
A doctor should certify or testify only to that which he has
personally verified
 INTERNATIONAL CODE OF MEDICAL ETHICS
Duties of Doctor to the Sick-
Always preserve human life
Owes complete loyalty & resources of science to patient
Shall preserve absolute secrecy
In case of cases beyond doctor’s capacity one should summon other doctor
Must give emergency care as a humanitarian duty unless he/she is assured that
others are willing and would be able to give such care
Duties of Doctor to Each Other-
Used to indicate the conventional law of courtesy to be observed among the
members of medical profession.
It is the rules of conduct growing the relationship in the medical profession and
includes the following:
Must behave to his/ her colleagues
Should not endanger patient for sake of friend/ colleague
 INDIAN
MEDICAL
COUNCIL
The Medical Council of India is a
statutory body charged with the
responsibility of establishing and
maintaining uniform standards of
medical education and recognition of
medical qualifications.
The Medical Council of India was
established in 1934 under the IMC Act,
1933. In 1956, the old act was
repealed and a new one was enacted.
This was further modified in 1964,
1993 and 2001.
The President and Vice-President are
elected from amongst these members.
They hold office for a term of 5 years.
SCHEDULES
 FUNCTIONS OF IMC
Maintenance of Indian medical
register
Granting permission for new medical
colleges and new courses of study.
Derecognition
Maintenance of standard in medical
Functions education & examinations
Recognition of medical qualifications
granted by foreign medical
universities.
Regulation of professional conduct
Prescribe standards of professional conduct and
etiquette, and a code for medical practitioner.
Removal of names from Indian
Medical Register if a medical
practitioner is found guilty.
Warning notice

Appeal against disciplinary action

 STATE MEDICAL COUNCIL
Composition of the State Medical Council-
Medical teachers from different universities of the
state elected by the teachers of different medical
institutions.
Members elected by registered medical
practitioners of the state.
Some members are nominated by the State
Government.
They elect a President and a Vice-President from
amongst themselves.
Functions of SMC-
1. Medical register
2. Disciplinary control
 WARNING NOTICE
Indian Medical Council may issue warning notice to every doctor at the time of
getting enrolled as Registered Medical Practitioner.
This comprises of information about certain unethical practices known as infamous
conduct in a professional respect.
Once Medical Council of India receives a complaint against a medical practitioner
about breach of professional conduct, it may issue a warning notice to him. It directs
him to explain his conduct before an ethical committee.
If ethical committee finds him guilty, it can recommend:
Temporary Erasure of name of the medical practitioner from Indian Medical Register.
Permanent erasure of name of the medical practitioner from Indian Medical Register.
If name is removed permanently, it is called “Professional Death Sentence.”
 REGISTERED MEDICAL
PRACTITIONER
A Registered Medical Practitioner is a qualified doctor who has been registered in
State/Indian Medical Councils.
RMP has certain merits such as achieving some special rights and privileges. He/she also
have to perform certain duties towards the patients and the state.
Rights and Privileges of Registered Medical Practitioner
1. Right to practice medicine
2. Right to choose patient
3. Right to prescribe/dispense medicines
4. Right to possess, dispense or prescribe drugs listed in the Dangerous Drug Act
5. Right to add professional titles to his name
6. Right to perform surgical operations
7. Right to issue certificate
8. Rights for appointment to public (government) hospital
9. Right to give evidence as an expert witness in the Court of law
DUTIES OF MEDICAL
PRACTITIONERS
Examination & consent
 PROFESSIONAL SECRECY
Professional secrets are the ones, which a doctor comes to know about
his/her patient in his professional capacity as a physician/ doctor.
Part of the Hippocratic oath affirms: ‘Whatever in connection with my
professional practice or not in connection with it, I see/ hear in the life of
men, which ought not to be spoken of abroad, I will not divulge, as
reckoning that all such should be kept secret’.
Medicolegal Significance-
Every practitioner should be very cautious to reveal statements confided in
him by his/her patients outside the professional milieu.
Professional secrets may be disclosed and in fact it may become the duty
of a doctor to divulge the same at times.
Divulging a patient’s secrets on these occasions is called privileged
communication.
Professional secrets can be divulged under these circumstances:
1. In a court of law under orders of the Presiding Judge
2. In case of risk to life of a person/ community
3. In cases of notifiable diseases
PRIVILEGED
COMMUNICATION
Privileged communication is be defined as “a bonafide statement made
by doctor upon any subject matter to the appropriate authority to protect
the interests of the community or of the State”.
It is a statement made by a doctor, under legal, social, ethical or moral
obligation to protect the interest of society to other concerned authority
though such communication may, under normal conditions, amount to
defamation or slander.
While making a privileged communication, the communication should be
made to:
1. Proper authority
2. The communication should be bonafide
3. The communication should be without malice
CONDITIONS OF PRIVILEGED
COMMUNICATION
1. Infectious diseases
2. Venereal diseases
3. Employers & employees
4. Notifiable diseases
5. Suspected crime
6. Patient’s own interest
7. In courts of law
 PROFESSIONAL
MISCONDUCT
It is also called as infamous misconduct.
It is defined as something done by a doctor in profession, which is
considered as disgraceful and dishonorable by his/ her professional
brethren of good repute and competence, after the enquiry by the
State Medical Council.
Punishments:
Under disciplinary control the State/Indian Medical Council decides
this and depending on the type of misconduct punishment can be:
a. Warning
b. Suspension
c. Penal erasure (professional death sentence).
 ACTS CONSIDERED AS
MISCONDUCT
The potential reasons for penal erasure or suspension from the register are
limitless. However, a few examples are enumerated below. Each of these is
also called as ingredients of professional
misconduct and listed under 6 A’s
1. Association with unqualified persons-
-Employing unqualified or unregistered assistants
-Assisting an unqualified person for some purpose (ghost surgery, covering
of unqualified persons)
2. Advertising- Includes three modes, namely direct advertisement,
indirect advertisement and canvassing
3. Adultery- medical man should maintain the highest professional
standard and should not abuse his/her position to seduce a female
patient or some other member of patient’s family.
 ACTS CONSIDERED AS
MISCONDUCT
4. Abortion (illegal)- includes procuring, assisting
or attempting to procure a criminal abortion.
5. Addiction- Supplying or selling addiction
forming drugs to a person for other than medical
grounds
6. Alcohol- Attending patients while under the
effect of alcohol
Apart from these, the councils can also consider any
other form of alleged infamous conduct.
• Violation of regulations prescribed by the Medical
Council of India.
• Involved in sex determination test
• Issuing false certificates
 ACTS CONSIDERED AS
MISCONDUCT
• Dichotomy or fee splitting
• Medical record – if doctor does not maintain the medical records of his/her
indoor patients for a period of 3 years/ refusal to provide such records to
patient in 72 hours.
• Registration number- Non-display of registration number in clinic,
prescription and certificates issued by him.
• Informed consent not taken.
• Should not publish photographs of patient without consent.
• Conviction by a court of law for offences involving moral
turpitudes/criminal act.
• Absence from duty.
• Research- Violation of existing ICMR guidelines in this regard shall
constitute misconduct.
• Refusing to give professional service on religious grounds.
 CONSENT
Consent is defined as free and voluntary agreement, compliance/ permission given for a specified
act/ purpose.
It is based upon the Latin maxim “volenti non fit injuria” means ‘he who consents cannot complain’.
This is based on 2 factors-
1. Every patient is best judge of his own interest
2. No man will consent to what he think is harmful to him.
Section 90 of IPC defines consent in negative terms.
As per this section, any consent given under the following 5 circumstances will becomes invalid if
given:
a. By a person under fear of injury
b. By a person who is under misconception of the facts & person who obtains consent knows/ has a
reason to believe this
c. By an intoxicated person
d. By a person who is of unsound mind
e. By a person who is below the age of 12 years of age.
 As per Section 14 , consent is said to be free and voluntary when
it is not obtained by force, fraud, under pressure, under
influence of intoxication, mistaken subjects & mentally unsound
persons.
Reasons for obtaining Consent-
i. To examine patient
ii. To treat patient
iii. To operate a patient
If a doctor fails to give the required infom1ation to patient
before asking for his consent to a particular operation or
treatment, he may be charged for negligence.
TYPES OF CONSENT:
1. Implied
2. Expressed- oral/written
 IMPLIED CONSENT
Implied consent is most common type of consent observed in
medical practice.
Here the consent is presumed to have been given when the
patient enters doctor’s consulting room, summons the doctor to
house/ .
Reasons- since the patient knows that the procedure of
diagnosis/treatment, etc. is simple and straightforward, with
little/ negligible/no risk, and the conduct of patient implies the
willingness to undergo the treatment.
The consent is not written but legally it is effective.
The consent is provided for medical examination such as
inspection, palpation and auscultation.
It does not cover the consent for examination of:
a) Private parts
b) Vein puncture or injection
c) Major intervention or operation.
 EXPRESSED CONSENT
- Anything other than implied consent is expressed consent.
- In other words, an expressed consent is one, which is stated, in
distinct and explicit language.
ORAL CONSENT
- It is consent, which is given verbally.
- Used for minor procedures.
- This consent should be obtained in the presence of a disinterested
3rd party, E.g. nurse/ receptionist
- Oral consent, when properly witnessed, is of equal validity that of
written consent.
- It should be recorded in patient’s clinical record.
- Such precautions will be useful in future if any action is brought on
the doctor by patient.
 EXPRESSED CONSENT
WRITTEN CONSENT
Here the consent is obtained in a written
format.
The doctor should explain the type of
therapeutic procedure/ surgical operation
properly to the patient.
Written consent afford documentary
evidence
When such consent is obtained after
explaining the nature and consequences of
the treatment procedure being
contemplated, is called as informed consent.
 RULES OF CONSENT
1. Consent should be always free, voluntary, informed, clear and direct.
2. The person giving consent should be above the age of 12 years.
3. Person must be mentally sound
4. One should not be under any fear/threat/under any false conception/intoxicated
5. Oral consent should be obtained in the presence of a disinterested third party
6. Any procedure beyond routine physical examination, such as operation, blood
transfusion, collection of blood, etc. requires express consent.
7. In MLC’s the doctor should inform the patient that he has right to refuse to submit to
examination and that the result may go against him. If the patient refuses, he cannot
be examined.
8. In criminal cases, the victim cannot be examined without his/her consent. The Court
also cannot force a person to get medically examined, against his will.
- In cases of rape, the victim should not be examined without written consent.
- In MLC’s of pregnancy, delivery and abortion, the woman should not be examined
 DOCTRINE OF INFORMED
CONSENT
It is also called as “ Rule of Full Disclosure/ Written Informed Consent/
Informed Consent”
It implies an understanding by the patient of:
a. Condition or nature of illness
b. Purpose and nature of procedure or treatment proposed
c. Risks and benefits of treatment or procedure
d. Prospect of success or failure
e. Risks and benefits of alternative treatments/ procedures
f. Prognosis in the absence of intervention
g. Acceptance or refusal (informed refusal) of the said procedure/ intervention
This is essential in medical practice, when diagnosing or treating is beyond the
routine methods, wherein risks are involved. Thus, the doctor should explain all
relevant details to the patient.
Rules of consent are though rigid in their legal implications, certain
deviations are usually allowed and they are:
1. Doctrine of therapeutic privileges
2. Doctrine of emergency
3. Doctrine of locoparentis.
Doctrine of Therapeutic Privilege
The 'therapeutic privilege’ enables the doctor to withhold from patient the
information (as to risk), if the disclosure would pose serious psychological
threat to the patient (e.g. malignancy or unavoidable total results).
Accordingly under such circumstances doctor can reveal the details to any
one of the close relatives of the patient.
This is called doctrine of therapeutic privilege.
Doctrine of Emergency
According to this, a doctor can provide the treatment without taking prior
consent from a patient who is gravely sick, critically ill, unconscious or not able to
understand the suggestions or when mentally ill (Section 92, IPC).
Section 92, IPC-
Nothing is an offense by reasons of any harm which it may cause to a person for
whose benefit it has been done in good faith, even without that person’s consent.
Only if circumstances are such that it is impossible for person to sign consent, or
if the person is incapable of giving consent and has no guardian/ other person in
lawful charge of him from whom it is possible to obtain consent in time for thing
to be done with benefit.
Medical Emergencies, Notifiable Diseases, Immigrants, members of Armed
forces, New admission to prison, Incase of person where a court may order for
psychiatric examination or treatment
Under Section 53 (1) of Code of Criminal Procedure, a person can be examined
at request of police, by use of force.
Section 53(2) lays down that whenever a female is to be examined, it shall be
Doctrine of Locoparentis
In emergency situations involving children, when their parents/ guardian
are not available, according to this doctrine, consent can be obtained from
the person accompanying.
For example, if a child is ill and needs operation, the school teacher can
give consent in absence of parents of child
As per this doctrine, here the teacher of child is acting as a local guardian
of child i.e. local parent (Locoparentis).
Other Types of Consent
1. Blanket consent: Consent not taken for specific purpose or procedure
but is broad and vague.
2. Surrogate consent: It is a proxy consent.
3. Proxy consent: Consent not given by patient himself but given by some
other person on his behalf is called as proxy consent.
 MEDICAL NEGLIGENCE
Synonyms: Professional Negligence, Malpractice, Malpraxis
Medical negligence is defined as absence of reasonable degree of care and
skill or willful negligence on the part of medical practitioner in treating a
patient leading to injury or suffering or death.
There are 2 important components in definition & for negligence either one
should be present
1. Lack of reasonable degree of care & skill applied by doctor
2. Wilful negligence
Breach of care occurs appears in 2 ways:
- Act of Omission: failing to do something which one is supposed to do
- Act of Commission: doing something which one is not supposed to do
 CLASSIFICATION OF
MEDICAL NEGLIGENCE
Negligence is a legal concept, not a medical concept.
Negligence is actionable and an action for negligence
may be brought against doctor in a civil or criminal court.
Negligence are classified as
1. Civil negligence
2. Criminal negligence
3. Corporate negligence
4. Contributory negligence
 CIVIL NEGLIGENCE
Civil malpractice is usually is of bifid nature:
- Either a patient bringing charges of negligence allegation against a
doctor for compensation towards the physical damages suffered by
patient,
- Or a doctor bringing charges against a patient who fails to pay his/her
dues on the grounds of charges of malpractice on the doctor, during the
course of treatment
For civil negligence cases, a patient has to approach civil court or
consumer redressal forum (Consumer court).
To be valid, the suit for negligence must be filed in a civil court within
3 years from the date of alleged negligence.
If the court has taken decision on a particular case, the same case cannot
be reopened in any other court (res judicata).
The burden of proving negligence lies on the plaintiff (i.e. patient).
In civil action, the plaintiff (patient) has to prove that the
recognized legal right of patient had been infringed.
Liability for negligence arises only if following conditions are
satisfied:
1. There was existence of a duty of care by the doctor.
2. Failure of doctor to exercise such duty of care and skill i.e.
dereliction of duty by doctor or breach of duty by doctor.
3. This breach of duty (dereliction of duty) was the cause of
injury or harm to patient (i.e. direct causation).
4. As a result of injury or harm, the patient had suffered
damage.
Here damage refers to harm suffered by patient- loss of
income, extra expenses for treatment for harm, mental and
physical suffering.
These damage/damages should be compensated by money.
Burden of Proof- the patient should prove all 4 elements of
negligence by evidences
Examples for civil negligence:
• Failure to exercise proper care, to perform proper
diagnostic tests
• Promising 100 per cent cure .
• Failure to give proper pre- and postoperative care.
• Mishaps while giving injection.
• Giving injection in wrong site or by wrong route.
 CRIMINAL NEGLIGENCE
Criminal negligence is gross negligent acts that had caused death or
severe harm to the patient.
The doctor showed a gross carelessness or gross neglect for the life and
safety of the patient.
The negligence amounts to a criminal offense and goes beyond a mere
matter of compensation. The doctor is liable to be punished under the
Indian Penal Code (IPC).
The question of criminal negligence may arise:
1. When a doctor shows gross absence of skill or care during treatment
resulting in serious injury to or death of the patient, by acts of omission
or commission.
2. When a doctor performs an illegal act.
3. When an assaulted person dies, the defense may attribute to the death
due to the negligence in the treatment of the deceased by the doctor.
Conditions to be satisfied: Criminal negligence occurs if any one of the
following are satisfied :
1. Indifference to an obvious risk of injury to health,
2. Actual foresight of the risk, but continuation of the same treatment,
3. Appreciation of the risk and intention to avoid it, but showing high
degree of negligence in the attempted avoidance,
4. Inattention or failure to avoid, a serious risk which went beyond mere
in advertence in respect of an obvious important matter.
In criminal law, the criminal negligence must be proved beyond reasonable doubt
unlike civil negligence.
In this, the negligence that is justified for convection must be of a gross degree or
culpable (also called as wicked, criminal) and not the negligence founded on a mere
error of judgment or inherent risks.
It is something more than mere omission or neglect of duty.
Thus, in criminal negligence, there is rashness on part of doctor
Example for criminal negligence-
a. Operation on wrong limb
b. Removal of wrong organ
c. Wrong blood transfusion
d. Leaving instruments in abdomen
COMPOSITE NEGLIGENCE
It occurs when a patient suffers from any injury due to
negligent acts of more than one person without the
negligence of patient.
In such case, patient may claim compensation from any
one negligent person. The defendant negligent person
may claim contribution from other negligent persons.
 DOCTRINE OF RES IPSA
LOQUITUR
Ordinarily, the professional negligence of a physician must be proved in Court
by the expert evidence of another physician.
The patient need not prove negligence in case where the rule of res ipsa
loquitur applies, which means "the thing or fact speaks for itself".
The patient has to merely state what according to him was the act of
negligence. Conditions to be satisfied:
1. That in the absence of negligence the injury would not have occurred
ordinarily;
2. That the doctor had exclusive control over the injury producing instrument or
treatment;
3. That the patient was not guilty of contributory negligence.
This enables the patient's lawyer to prove his case without medical evidence.
Application:
Rule is applied when the following 3 conditions are satisfied:
ii. Doctor had exclusive control over the injury producing
instrument/treatment
iii. Patient was not guilty of contributory negligence.
Examples
a. Blood transfusion misadventure.
b. Failure to give anti-tetanic serum in cases of injury.
c. Prescribing an overdose of medicine producing ill effects.
d. Leaving a pair of scissors in abdomen
e. Failure to remove swabs during operation, causing complications/death.
f. Loss of use of hand due to prolonged splinting.
In such situations, the breach of duty is obvious, so the strategy of the
defense generally must be to show that the patient was not harmed by
the breach.
 DOCTRINE OF
CALCULATED RISK
Many doctrines can be used as a defense plea against the negligence claim in civil
cases.
In certain treatment procedures or operations, there is inherent risk or unavoidable
risk.
E.g.- a female brought at term for delivery has to undergo Caesarian Section. Now
the operation (i.e. Caesarian Section) may carry risk to mother or fetus or both. At
times, mother or fetus may die. In spite of all adequate care and skill, there is risk
that in 0.1% of cases the mother may die.
-This inherent risk or danger is basis for doctrine of calculated risk.
- In such cases, the charge of negligence cannot be proved or stand against doctor.
This doctrine is an important defense to any doctor sued for professional negligence,
who can produce expert evidence/ statistics to show that the accepted method of
treatment he employed had unavoidable risks.
DOCTRINE OF COMMON
KNOWLEDGE
A doctor may be charged for negligence in a particular case,
not for his technical or medical knowledge, but for act involving
application of common sense or common knowledge only.
It is a variant of res ipsa loquitur.
E.g.- if a patient with gastroenteritis with dehydration comes to
doctor; it is a matter of common sense that the patient requires
fluid replacement. If doctor fails to do the needful then the
doctor can be charged for negligence.
Here the plaintiff (patient) need not to show that doctor did not
show reasonable degree of care and skill but it is common
knowledge that such patient requires fluid therapy
 MEDICAL MALOCCURRENCE
Medical maloccurrence is the legal term which defines a less than ideal
outcome of medical care.
It is often unrelated to the reasonable risks of quality of care that was
provided.
In some cases, in spite of good medical attention and care, an individual
fails to respond properly or may suffer from adverse reactions of the drug.
This is called medical mal occurrence.
For example, idiosyncratic response to drugs in some patients or damage
to recurrent laryngeal nerve during thyroidectomy leading to vocal cord
paralysis.
 NOVUS ACTUS INTERVENIENS
It means an unrelated action intervening
At times, it occurred that patient might suffer damage or harm due to new action,
which intervene or intercede the treatment.
Or If doctor is negligent, which results in deviation from the logical sequence of
events, then the responsibility for the subsequent disability or death may pass
from original incident to the negligent act of doctor.
For a plea of novus actus interveniens, an element of negligence is essential.
It usually applies to cases of accidents and assaults, like leaving a swab or
instrument in the abdomen after laparotomy. Plea is rarely accepted by the courts.
Suppose an operated patient is shifted to recovery room and suddenly, due to
earthquake, ceiling falls over the patient and the patient dies in the accident. Here
the falling of ceiling is a new intervention that has occurred.
A doctor may not be held responsible if damage occurred to patient due to new
action, which intervenes in the treatment.
 THERAPEUTIC
MISADVENTURE
It is a case in which an individual has been injured or had died
due to some unintentional/ inadvertent act by doctor or his
agent or hospital (somewhat similar to medical maloccurrence).
Such mishap does not provide ground for negligence
i. Hypersensitivity reactions caused by penicillin, tetracycline
and aspirin.
ii. Radiological procedures for diagnostic purposes,
e.g. poisoning by barium enema, traumatic rupture of rectum/
chemical peritonitis during barium enema.
 CONTRIBUTORY
NEGLIGENCE
When a patient contributes toward negligence, it is called contributory negligence.
In this, both doctor and patient contribute toward negligence suffered by the patient.
a. Failure to give the doctor accurate medical history. If the patient provides incomplete or
inadequate information. It could result in misdiagnosis, mistreatment and harm.
b. Failure to cooperate with his doctor in carrying out all reasonable and proper instructions,
c. Refusal to take the suggested treatment,
d. Leaving the hospital against the doctor's advice,
e. Failure to seek further medical assistance if symptoms persist.
In such cases, the doctor's negligence is not the direct, proximate cause (actual or legal
cause) of the injury suffered by the patient.
Proximate cause means, that which in natural and continuous sequence unbroken by any
efficient intervening cause produces the injury, and without which the result would not
have occurred.
If the doctor and the patient are negligent at the same time, it is a good defense for the
doctor. The doctor cannot plead contributory negligence, if he fails to give proper
instructions.
LIABILITY OF THE DOCTOR
The extent of contributory negligence may vary and with it will vary the doctor's
liability, from complete nonliability to a substantial liability for damages.
Normally, contributory negligence is only a partial defense, and the Court has
right to fix liability between the parties (doctrine of comparative negligence),
and damages awarded may be reduced accordingly.
The burden of proof lies entirely on the doctor.
If a patient consent's to take the risk of the injurious event actually taking place,
he cannot claim damages.
If a doctor is not negligent, but if a patient is negligent which results in injury, it
is called negligence of the patient.
 LIMITATIONS OF
CONTRIBUTORY
NEGLIGENCE
1. LAST CLEAR CHANCE DOCTRINE:
If the doctor fails to prevent damage resulting from the negligent act of
the patient, even after getting clear time, he cannot plead contributory
negligence in civil cases.
2. AVOIDABLE CONSEQUENCES RULE:
It is the negligence of the patient which aggravated the damage already
caused by negligence of the doctor. which could have been avoided if the
patient was not negligent afterwards. In such case the doctor cannot
plead contributory negligence in civil cases.
 CORPORATE NEGLIGENCE
It is possible that the damage suffered by the patient may be due to
hospital/nursing home where he is receiving treatment.
In such cases, the doctor has no role to play. The following examples may
be there:
i. Patient may fall from stairs due to defective steps and may sustain
injuries.
ii. Patient may fall from stretcher/wheel chair due to fault in the carrier.
iii. Patient’s care is affected as a result of inadequate number of
nurses/paramedical staff.
iv. Hospital may not have sufficient infrastructure to manage the patient
and hence patient suffered damages.
 VICARIOUS LIABILITY
It means responsibility of respondent superior (Latin: ‘let the superior
reply’).
In this, liability for negligence lies on the master or employer.
In law, the master is held responsible for the negligent acts of his
servants within the scope of employment but is not liable if he has
employed an independent person to do something.
Accordingly, hospitals are liable for the negligent actions of its
paramedical staff and full-time junior medical staff.
Hospital is not responsible for the negligent actions of honorary
consultants as they do not come under purview of employment.
 PRODUCTS LIABILITY
patient can get damages as a result of faulty instruments, faulty injection set
or use of inadequate drugs. In such cases, doctor who is using such
instruments or drugs may not be aware that they are faulty.
Examples of this nature are:
a. Patient may get electrocuted while cautery is being done.
b. Patient may get severe burns because of leakage of hot water from hot
packs.
c. Injection vial containing the desired drug may not have proper drug or
proper concentration.
d. Suction apparatus may not be working properly.
In all such cases, the liability of negligence would lie on companies
manufacturing such instrument or the drug vials.
But hospital can also be held responsible if it is seen that hospital has not
 DEFENSES OF DOCTOR AGAINST
CHARGES OF NEGLIGENCE
He/she had no duty to the patient.
He/she discharged his/her duties in par with existing standards of medical practice.
The damage caused could be due to other person who was concerned in providing the treatment.
The damage was the result of third party intervention without his/her knowledge.
The case is contributory negligence.
The damage suffering is an expected outcome of the disease the patient suffered from.
The case is of reasonable degree of error of judgement.
The case is therapeutic or diagnostic misadventure.
The case is medical maloccurrance.
The case is Res-judicata (complaint should not be entertained by the court as it has already been tried
once in court of law).
The damage is the result of taking unavoidable risk, which was taken in good faith in the interest of
patient with consent.
Patient persistently insisted on specific line of treatment, in spite of doctors warning.
The time limit allowed by the law for lodging such a complaint is over (complaints of negligence should
be lodged within two years, counting from the alleged date of causation of damage).
 PREVENTION OF
MALPRACTICE
9 R’s of negligence prevention
1. Rapport Maintain healthy rapport and communication with:· The patient and his
family, Fellow physicians· Office staff and nurses and other hospital personnel.
2. Rationale- Physician must understand what he is doing with his patients and why.
The diagnostic and therapeutic rationale should be adequately documented. This
can help the court in understanding the physician’s thought process.
3. Record- it should be carefully prepared, complete, accurate, liable germane,
timely and generously informative. A good record speaks of good care.
4. Remarks- This refers to the gratuitous oral statements made to the patient and
patient’s family as well as to other members of the treatment team. In certain
situations a stern warning, a forceful advice, is essential in handling
uncooperative patient. But, harshness, excessive criticism, etc. will harm the
good patient rapport. A doctor has to be cautious in passing remarks against
another doctor who has treated the patient. Doctor should always keep the
patients ailments confidential.
5. Rx- Never prescribe medicine unless indicated. Doctor should be aware of drug
reaction, allergy, etc. for a drug.
6. Res ipsa loquitur- The doctrine is applied in the court of law to refer to
situations even an untrained layman will understand the malpractice
without the testimony of expert witness.
7. Respect- Many malpractice cases are triggered by concurrence of a bad
medical or untoward outcome and patient’s perception that the
physician lacks respect/concern for him as an individual, as a person.
8. Risks- risks of treatment, which varies from patient to patient, must be
discussed with a patient while taking consent.
9. Results- Obtain informed consent from the patient. If a bad result occurs,
sincere close attention should be given.
10. Review: Routinely review cases involving morbidity and mortality. Review
medical malpractice cases and the testimony by medical experts.
 EUTHANASIA
Synonyms: mercy killing, physician
assisted suicide
Euthanasia is defined as infliction of a
painless death of a person who is suffering
from severe, incurable pain or disease.

Types of Euthanasia
1. Depending on how it is induced: active
and passive.
2. Depending on the willingness of the
patient: voluntary, non-voluntary/
compulsory and involuntary.
 TY[ES OF EUTHANASIA
1. Voluntary – when the dying person voluntarily gives consent for the act and
request for mercy killing.
2. Non-voluntary – in this type the dying person is unable or incapable to give
consent or unable to refuse consent because of unconsciousness or due to coma.
3. Compulsory – here the society/state takes decision to terminate the life of person.
4. Active – in this type of euthanasia, doctor causes painless death of a person by an
active act i.e. by an act of commission, for example, giving lethal dose of
barbiturate or morphine injection to a person so as to cause death.
5. Passive – here doctor causes death of a person by doing nothing to save the life
i.e. by an act of omission, for example, withdrawal of life support/ventilation
support.
6. Pediatric – here euthanasia is administered to children
7. Geriatric – here euthanasia is administered to old individuals.
 REASONS OF EUTHANASIA
The following reasons are cited in favor of euthanasia:
1. Unbearable Pain: It is a major argument in favor of euthanasia. In terminal
cases of cancer, an individual may suffer from unbearable pain even with the
use of pain killers. But with the use of new drugs and treatment, much of pain
can be significantly reduced.
2. Right to Commit Suicide: Most workers who support the doctrine of
euthanasia believe that every person should have the right to commit suicide.
But, if logically thought about, in this case there is no right of suicide as the
act is done by an other person and thus amounts to murder.
3. Should a Person be Forced to Stay Alive- An argument forwarded that
whether vegetative life should be allowed to be kept on perpetual basis even
against the wishes of the patient. It is cruel and inhumane. But now law is clear
in such cases. Law does not ask doctors to keep death away forever in these
cases.
 REASONS AGAINST
EUTHANASIA
It is considered that no person has right to take away the
life of another person. Traditional medical ethical codes
never sanctioned euthanasia, even on request.
Definition of “Terminally Ill” is Not Conclusive: The term
“terminally ill” is subjective and there can be gross misuse in
selection of patients. It is also found that some terminally ill
patients live for years or months together.
Misuse by Hospitals to Reduce Healthcare Cost
Importance and Value of Life would be Reduced in the Eyes
of People.
 EUTHANASIA IN INDIA
The basis for this was Article 21, which states that all
Indians have a right to life and personal liberty.
The judgment accepted the view that in a terminally ill
patient (Permanent Vegetative State - PVS), mercy killing
does not extinguish life, but accelerates conclusion of the
process of natural death that has already commenced.
It also added that the scope of Article 21 couldn’t be
widened to include euthanasia.
In the concluding remarks, assisted suicide and abetting of
suicide were made punishable, due to cogent reasons in
the interest of society.