IML RELEASES WHITE PAPER BASED ON FRATERNITY RECOMMENDATIONS TO ADDRESS LEGAL ISSUES IN HEALTH CARE

2nd National Convention On Medicine & Law – 2016 Concludes In New Delhi

New Delhi: A major step in bridging the lack of dialogue between the doctor community, hospitals, legal professionals, and policy makers was taken yesterday at 2^nd National Convention on Medicine & Law – 2016 organized by the Institute of Medicine & Law (IML). Subsequently a white paper recommending legal reforms in health care was released today, which will be submitted to policy makers and regulators.

The document exhaustively discusses and highlights several medico-legal issues including the need for a new law recognizing declaration or certification of Brain Stem Death as a form of death under Uniform Determination of Death Act, a law to enable doctors to refuse treatment or admission in case of 'futility of care', to legally recognize Living Wills / Advance Directives / DNR Instructions among others.

“India is witnessing a sharp rise in cases of medical negligence in courts along with cases of violence against doctors and hospitals. These indicate a systemic failure and breakdown of trust between doctors and patients. A soft regulatory framework, unrealistically high expectations of patients, and the peculiar socio-economic character of the nation further compound the issue. This does not augur well for a developing country like India and the convention hopes to bring apprise Policy makers and regulators about these contentious issues and recommend changes required in the legal and regulatory framework,” says Advocate Mahendrakumar Bajpai, keynote speaker at the 2^nd National Convention on Medicine & Law – 2016.

Dr Ravindra Pandula (Member of Parliament – Amalapuram, Andhra Pradesh), Dr V P Mishra, Chairman - Academic Council, MCI, Dr B C Gupta, Member, - National Consumer Disputes Redressal Commission, Dr B D Athani, Special Director General of Health Services – MoHFW were the Guests of Honour at the convention.

“It is inappropriate that courts are forced to find solutions to issues that should have been provided either by the policy makers or the medical fraternity. It is imperative for doctors, medical associations, and hospitals to come together to identify and discuss the legal issues relating to medicine and to find practical and legally appropriate solutions. The recommendations on transplant, HIV, dermatology, intensivists, private hospitals, public hospitals and emergency medicine are generally unanimous in their respective consensus and have been constructively conveyed through the paper,” adds Adv. Bajpai.

The convention also discussed and addressed several other pressing medico-legal matters that are either still ambiguous or have not received the deserved attention. Some of these include incentivizing organ donation with non-monetary incentives to the donor or family such as giving priority in receiving organs, to allow HIV positive couples to adopt children subject to certain conditions and due diligence performed by the authorities, framing regulations for doctors’ website and its content, and also framing of proper guidelines for tele-consultation and e-consultation among others.

“The Convention is a platform to identify the legal issues relating to medicine, discuss them threadbare, and suggest remedial measures. Into the second year, the Convention has registered a humongous increase in participation from all relevant communities compared to the previous year’s and has raised the bar in making definitive strides towards addressing the legal health care issues in India. The suggestions and actions recommended by the Convention will be conveyed appropriately to the regulators and policy makers,” concludes Adv. Bajpai.

Institute of Medicine & Law:

Institute of Medicine & Law (IML) provides education, information, and services related to medical laws. IML’s actionable content and analyses are delivered to doctors, hospitals, and lawyers on multiple platforms in real time. IML is India’s foremost authority on medical laws possessing the best resources in terms of legal professionals and experts. Its detailed knowledge bank is continuously updated with the latest developments and is optimally utilized to provide medico legal solutions to the benefit of healthcare providers. IML organized the first ever 'National Convention on Medicine & Law - 2015' (www.medicineandlawconvention.com), a platform to identify the legal issues relating to medicine, discuss them threadbare, and suggest remedial measures. Doctors, medical associations, hospitals, lawyers, judges, regulators, and policy makers were part of this initiative.

For further information, please visit http://medicineandlawconvention.com/

PROPOSED TERMINALLY ILL PATIENT BILL IS A GOOD BEGINNING, BUT FILLED WITH LACUNAS AND CONTRADICTIONS

Proposed Terminally Ill Patient Bill Is A Good Beginning, But Filled With Lacunas And Contradictions

Mumbai: “The proposed Terminally Ill Patients Bill is a laudatory effort to address the long-standing lacuna in the Indian Healthcare System,” said Adv. Mahendrakumar Bajpai, Supreme Court Advocate and Hon. Director, Institute of Medicine & Law in his keynote address to doctors at the IPGMER & SSKM Hospital, Kolkata yesterday. But in equal breath he added that the bill seems to have been drafted in a hurry and is filled with contradictions and omissions – a few so large that it renders the bill virtually inoperable.

Adv Bajpai was speaking in reference to ‘The Medical Treatment of Terminally-Ill Patients [Protection of Patients and Medical Practitioners] Bill’ drafted and put up for public comments by the Ministry of Family Health & Welfare. “The draft, among other things, gives a terminally ill patient the right to continue or discontinue artificial life support system. By itself this is a very good development. The problem however is that most patients at this stage are usually in a coma and not in a position to take decisions,” explains Adv Bajpai.

“The bigger contradiction is that through section 11 of the bill, it expressly voids the advance directives of the terminally ill patient. So, if you give a directive at the time of hospitalization that should you become terminally ill or were to go in a coma, you should or should not be not put on life support, the instruction becomes void. This not only takes away all the advantages the bill was supposed to provide, but also is an anomaly considering that minor procedures cannot be done without the patient’s written consent, but the patient can be put on artificial life support without his or her express opposition. In Western countries, such advance instructions are the norm, and is what gives similar legislations its relevance.”

According to Bajpai, another provision of the Bill that needs reconsideration is Section 3 that gives right to a 16 year old to take such an important decision. The legal age of majority is 18 years in India. Moreover, to exercise the right to refuse treatment a higher level of maturity is needed as compared to giving consent for a treatment. So for a minor surgery of a patient below 18 years the guardian has to give consent but a terminally ill patient of 16 years can refuse to take treatment! 

This Bill gives right to an incompetent patient's relatives, friends, and doctors to approach the High Court (Section 9) for withdrawing or withholding of treatment. This could have been avoided and a high level committee of doctors and social workers would have been faster, cheaper and less troublesome to all concerned. Such high-level committee is already working in organ transplant.

“The most laudatory aspect of this statutory instrument is its recognition of the family and relatives in decisions relating to an individual. Section 3 (3) very specifically provides that after a terminally ill patient has communicated his/her decision to the doctor to withdraw or withhold treatment, the doctor must before proceeding further inform the nearest relative of the patient about the patient's decision and thereafter wait for 3 days. Law has taken into cognizance that unlike the western societies which are individualistic, Indian society is family-oriented and this differentiation needs to be recognized even when we are imitating western laws,” concludes Bajpai.

NOT NEGLIGENT AS SURGEON PERFORMED THE "RECOGNISED ALTERNATIVE MODE" - National Consumer Commission

Original Surgical Plan Based On Diagnosis May Be Altered On The Operating Table - National Consumer Commission

Mumbai: “Is a surgeon bound to perform a surgery strictly in accordance with what has been discussed and decided with the patient? Or can the surgeon deviate after opening the patient” questioned Mahendrakumar Bajpai, Supreme Court Advocate and Hon. Director, Institute of Medicine & Law in his keynote address to doctors at the “Medico Legal Issues in Clinical Practice” conference held by the Institute of Medicine and Law (IML).

Citing an order passed by the National Consumer Commission in First Appeal No. 145 of 2015 on 17^th May 2016, IML has drawn attention to an underlying fact about human anatomy, which is both unpredictable and that no two human organs as alike. A suggested original surgery hence could be abandoned after a patient has been opened and an alternative can be performed. This would be the discretion of the surgeon while at the table.

“The fragile and decaying relationship between doctors and patients has led to many cases being filed by the patient against the doctor for varying degrees of dissatisfaction. However, what one needs to keep in mind is that no two human beings are alike and this applies to internal organs also. The most diligent surgeons prepare a plan of action aided by diagnostic reports, discuss it with the patient and take their consent. Yet on opening the patient during surgery they may find something amiss, something different, or something unanticipated and this may call for the surgeon to abandon the original plan or opt for an alternative. Patients need to accept this harsh fact and not react otherwise,” says Adv. Bajpai.

In a recent judgment pronounced by the National Consumer Commission, the patient who had undergone total hip replacement (THR) surgery about eight years ago was again advised replacement of acetabular cups. The orthopedic surgeon after opening the patient took a decision not to replace the acetabular cups but performed another procedure, namely, girdle stone arthroplasty. About four months later the patient underwent surgery for THR at Postgraduate Institute Medical Education and Research, Chandigarh. The patient approached the consumer court alleging that the orthopedic surgeon was negligent as he performed a different surgery than what was agreed. The orthopedic surgeon pointed in defense that after opening the patient he found that the condition of the hip was not satisfactory and was therefore forced to perform the alternative procedure. Medical experts stated in court that girdle stone surgery was a standard procedure in such a situation and it is for the surgeon to decide whether THR can be done in a particular hip or not. The court observed that the orthopedic surgeon had performed the "recognized alternative mode" and therefore held that there was no negligence.

“Doctors also need to keep in mind that in our country kidney rackets were flourishing until a few years ago. Today, the trust between a patient and a doctor is at an all-time low. Every surgeon needs to explain and counsel the patient about the inherent possibilities and probabilities associated with surgery, perhaps with a little human touch. This is perhaps the need of the hour,” concludes Adv. Bajpai.

About Institute of Medicine & Law: 

Institute of Medicine & Law (IML) provides education, information, and services related to medical laws. IML’s actionable content and analyses are delivered to doctors, hospitals, and lawyers on multiple platforms in real time.

IML is India’s foremost authority on medical laws possessing the best resources in terms of legal professionals and experts. Its detailed knowledge bank is continuously updated with the latest developments and is optimally utilized to provide medico legal solutions to the benefit of healthcare providers.

IML organized the first ever 'National Convention on Medicine & Law - 2015' (www.medicineandlawconvention.com), a platform to identify the legal issues relating to medicine, discuss them threadbare, and suggest remedial measures. Doctors, medical associations, hospitals, lawyers, judges, regulators, and policy makers were part of this initiative.

IML has been conducting an annual exercise of drafting and adopting a ‘SOP on Patients Consent’ (www.patientsconsent.com) together with major national medical associations like IMA, ASI, FOGSI, API, IOA, IRIA, AIOS, ISA, ISCCM, and CSI among others. This SOP is today accepted as a standard, comprehensive, and legally compliant document on patients consent in India.

PUNJAB LEADS THE NATION IN TOTAL NUMBER OF MEDICAL NEGLIGENCE CASES ;COURTS QUESTION DOCTORS REFERRING PATIENTS FROM GOVERNMENT HOSPITALS TO PRIVATE NURSING HOMES – REPORTS 8TH ANNUAL MEDICO LEGAL REVIEW AMONG OTHER DATA & TRENDS

PUNJAB LEADS THE NATION IN TOTAL NUMBER OF MEDICAL NEGLIGENCE CASES; COURTS QUESTION DOCTORS REFERRING PATIENTS FROM GOVERNMENT HOSPITALS TO PRIVATE NURSING HOMES –  REPORTS 8TH ANNUAL MEDICO LEGAL REVIEW AMONG OTHER DATA & TRENDS

The 8^th edition of the Annual Medico Legal Review has reported that Punjab, with 24% of all medical legal cases, has taken the mantle of the top litigating State in the field of medical negligence. West Bengal, Maharashtra and Tamil Nadu follow with 17, 16 and 11% respectively. The review has also reported that complaints by patients for being forced to buy medicines from hospitals are on the rise, a point on which courts have drawn adverse inference.

“As compared to the previous years, 2015 has thrown a number of noteworthy trends and interesting judgments. For instance, an unusually large number of cases of negligence against surgeons going on planned leave / absences immediately after a surgery have been reported. We have also noted that allegations related to diagnosis - delay, failure and improper diagnosis – doubled this year,” says Adv. Mahendrakumar Bajpai, keynote speaker and a leading authority on medical laws.

The Annual Medico Legal Review held consecutively since 2009 by Institute of Medicine & Law (IML) has been summarizing the changes in medical laws that have occurred in the previous year and predicting trends for the forthcoming year in medico-legal environment from the perspective of Healthcare providers.

The highlights from 2015 include the Indian Courts continuing with the trend of giving benefit of doubt to doctors; not questioning the correctness of medical records, except in cases of gross fabrications; and, courts continuing to hold that a wrong method or decision by a doctor does not necessarily constitute negligence. During emergencies courts have been observed to be even more accommodating by overlooking and condoning deviation from standard protocol.

Some of the common allegations filed by patients in the preceding year included failure of hospitals / doctors to give complete details of treatment and or charges, overcharging, prescription of expensive drugs unnecessarily and charging for a different type of room / facility.

In 2015, it was also observed that more and more aggrieved patients are suing 'only' hospitals and not doctors. The anomaly is brought to fore by two interesting cases. The first from Andhra Pradesh (Dr. M. Sarojini Devi v/s Galla Jayanthi) wherein despite directions from the court, the surgeon who had performed the surgery negligently was not made a party by the patient. The court had no other option but to hold 'only' the hospital negligent. The second case is from Delhi reported from the National Consumer Commission (Himanchal Kumari & Ors. v/s The Govt. of N.C.T. of Delhi & Ors.). The hospital alleged and admitted in the court that the oncologist was negligent and not the resident doctor and the technician who gave radiation. The court agreed with what the hospital stated and did not hold the resident doctor and the technician negligent. But the hospital 'only' was held negligent as the oncologist not sued by the patient

In 2015, the Courts also held that a doctor relying on a wrong investigation report of another qualified radiologist, sonologist or pathologist and acting accordingly is not negligent. It also deplored appeals in trivial cases and penalized appellants. “On the whole, the year was good as well as bad for doctors. The courts are hesitant in holding the healthcare providers negligent and are seeking more clear and convincing evidence from the patients. But once convinced that the doctor or the hospital has been negligent then the penalty that follows is heavy.”

Annual Medico Legal Review 2016 was presented by Supreme Court Advocate, Mahendrakumar Bajpai and chaired by Dr. Suresh Vasishta, President, Association of Surgeons of India. Other prominent speakers and guests included Yogendra Singh, Advocate - High Court, Mumbai, Dr. V.P. Singh, Editor- Legal Issues in Medical Practice, Dr. H. S. Bali, Director, Health & Family Welfare, Chandigarh, Sh. Hussan Lal (IAS), Managing Director, Punjab Health Systems Corporation, Mohali among others. The review in Chandigarh will be followed by Reviews in Delhi, Pune, Mumbai, Kolkata, Hyderabad, Chennai and Bangalore. Participation in this event is by invitation only with about 80 - 100 invitees in each city. The attendees would also include Ministry Officials, Regulators, MCI Office Bearers, Judges of the National/State Consumer Commission, and press.  

“Law is dynamic. Every single judgment passed each day has the potential to amend the existing laws. While these changes impact everyone, it has a wider implication for doctors. With the exponential rise in medico legal cases and ignorance not being a valid defense, it becomes imperative upon doctors to be abreast of changes in medical laws and take appropriate precautions,” concludes Adv. Bajpai.

About Institute of Medicine & Law:

Institute of Medicine & Law (IML) provides education, information, and services related to medical laws. IML’s actionable content and analyses are delivered to doctors, hospitals, and lawyers on multiple platforms in real time.

IML is India’s foremost authority on medical laws possessing the best resources in terms of legal professionals and experts. Its detailed knowledge bank is continuously updated with the latest developments and is optimally utilized to provide medico legal solutions to the benefit of healthcare providers.

IML organised the first ever 'National Convention on Medicine & Law - 2015' (www.medicineandlawconvention.com), a platform to identify the legal issues relating to medicine, discuss them threadbare, and suggest remedial measures. Doctors, medical associations, hospitals, lawyers, judges, regulators, and policy makers were part of this initiative.