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Is legal documentation important in medical practice?
  • By: admin
  • Date: 16 Jan 2020
  • Medical Negligence
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Introduction

As a medical practitioner, it is very important that the doctors maintain legal documentation and manage the medical records of the patient properly.

What are medical records?

The medical records include mainly the medical history, the clinical findings, the results of the test carried out, the care administered before operation, the notes which are taken down during the operation of the patient, the care taken after the patients operation is complete and the daily progress of the patient, and also the medications which are prescribed to the patient.

Consent

The consent which is acquired through legal means shall be very helpful to the doctor in the long run. For example consent for major or minor operations or for starting a new course of treatment for the patient’s betterment. And it is the duty of the doctor to acquire consent as per the principles of valid consent which are laid down for reference under the Indian law. Therefore, it is important that the medical staff and other officials at the hospital must be trained in maintaining the medical records of the patient in a systematic manner.

Indian medical council and record-keeping

 

All details regarding maintenance of medical records have been given under the Medical Council of India regulations 2002, and the regulations have laid down certain guidelines with respect to the number of years the medical records of the patient has to be maintained. They are as follows:

  1. Every doctor must maintain the medical records of the patient for a minimum period of three years from the date of the treatment of the patient.
  2. If a request would be made by the patient or the legal authorities of the court to produce the documents, the medical practitioner shall submit the same within 72 hours, and if the medical practitioner refuses to submit the documents, it might lead to serious consequences.

 

Reasons why medical documentation is important

 

There are two important reasons why there is a need to maintain the medical records of the patient. They are:

Seamless evaluation of the patient: Maintaining medical records of the patient will be helpful for analyzing and evaluating the patient’s profile and it will also help in analyzing the course of the treatment and the results. It will determine whether the health of the patient is improving or deteriorating and to what extent. It will also assist in planning out future procedures.

Legal documentation: It is always useful in cases where the medical practitioner has been alleged of medical negligence in the court of law. However, it can only be used in the form of documentary evidence when called upon to produce the same. The medical documentation becomes very important while pronouncing a judgment in favour of the medical practitioner. And it shall be helpful in cases with regards to a medical insurance claim with respect to medical negligence from the doctor’s end.

 

Essentials of managing medical records

 

  1. Comprehensive: Simple language should be used while recording the data and it should be easily understood by an individual. This step is important for planning, policy-making and making decisions for the patient or for the betterment of the hospital.
  2. Proper planning: The medical records must be looked at regular intervals during the working hours of the hospital or the clinic. One must rule out the information from the database of the medical records, which is not required for future reference.
  3. Cost-effective way: It is always important that one must maintain the medical records of the patient in a cost-efficient way (electronic records) where no loss is incurred to maintain the medical records of the patients for future reference.
  4. Fully accurate: The information which is going to be recorded should be confidential and true in all aspects.

 

Conclusion

 

It is the duty of the doctors to maintain the confidentiality of the medical records of the patient. However, in cases of medical negligence; it becomes important to produce the documents in the court of law. If the medical reports, at the time of submission in the court, are well maintained by the doctor, it may be an added advantage to the doctor or any other medical practitioner during the legal proceedings. These legal documents maintained by the medical practitioner hold an evidentiary value.

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Why do doctors need to be updated with medical negligence laws?

By: admin Medical Negligence 16 Jan 2020

Introduction

The medical profession is considered as one of the noblest professions in the world. The professionals in this area of practice are capable of serving humanity, provide care, efficiency and render professional skill while treating their patients. However, nowadays due to the communication gap between the doctor and the patient or due to the profit motive-oriented profession, the cases of medical negligence is increasing day by day. Thus, there are some lacunae in today’s medical treatment and professional expertise. Therefore, in order to safeguard oneself from the strict laws which are in favour of the patient, it is important to know the medical laws with respect to medical negligence so that they can protect themselves from the case which is registered against the doctors if they are not guilty of committing such an offence.

Since the time public awareness has spread in India regarding the types of cases which fall under medical negligence and the actions that have been taken against the medical fraternity, the hospitals and the doctors are facing a huge number of legal complaints with regards to even petty matters of medical negligence. Therefore, it is essential for a doctor to know what actions amount to medical negligence in India.

It is also expected from the medical professional that they follow the code of medical ethics which has been laid down by the Indian Medical Council which also provides the duties towards the patients which has to be fulfilled by the doctor.

 

Reasons why a doctor must be updated with medical negligence laws

 

  1. A doctor may be called upon in the court of law and may be questioned regarding the alleged medical negligence through which harm has been caused to the patient.
  2. Even if the doctor is summoned to the court, the burden of proof lies upon the applicant who has filed the case against the doctor. However, it is also better if the medical practitioner has the knowledge regarding the provisions of the law with regards to the burden of proof and how he can safeguard himself from the medical negligence case that has been filed against him/her. The doctor can hire a legal person who can explain the law to the accused doctor.

 

Medical negligence case is a legal case that can be defined as a case injury which is caused due to the malpractice of the doctor while treating the injury of the patient for which the patient had approached the doctor.

The cases that fall under the purview of the medical negligence cases are as follows:

  1. Misdiagnosis of an ailment of the patient.
  2. Incorrect medication prescribed to the patient.
  3. Mistakes during surgery, for instance, leaving a piece of equipment in the body of the patient.
  4. Fake doctor treating a patient.

Therefore, it is very important for the doctor to have the basic legal knowledge, especially with regards to cases which requires police investigation as well as for cases where the doctor is accused of medical negligence in India.

 

Laws which the doctor must know

 

  1. The Indian penal code
  2. Criminal procedure code 1908
  3. The Consumer Protection Act
  4. Medical negligence as per the Indian Medical Association.

And such laws which are decided by the Indian Medical Council from time to time.

 

Conclusion

 

To conclude, it is said that the medical profession with special reference to the doctor, must be aware and up to date with the recent rules and regulations that deal with cases of medical negligence. It becomes essential for the doctor to maintain the medical records and the history of the patient so that such records can be produced in the court of law when a case of medical negligence arises.

In order to change the current landscape of the Indian Healthcare System, the government is constantly trying to tackle the challenges faced in an overpopulated country. As per news updated on 16th September 2019, there are certain rules set to keep track of doctors and hospitals through maintaining a complete record of all the medical professionals practising in hospitals, in order to hold them accountable for their wrong-doings, through the National Medical Commission Act. Hence, now more than ever, doctors and other medical professionals are required to be updated with the changes in the law.

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Personal Data Protection Bill, 2019

By: admin Others 15 Jan 2020

Introduction

Data Protection refers to the procedures and policies inviting to minimize the intrusion of privacy of an individual by collecting and using the data. In December 2019, a bill named as Personal Data Protection Bill was introduced in Lok Sabha by the Minister of Electronics and Information Technology, Mr Ravi Shankar Prasad. A decade agoin India, the Information Technology Act, 2000 was passed by the government to protect the information of individuals. However, the new bill has enacted a separate law for the personal data, in the hopes that India will face a significant positive change.

The Personal Data Protection Bill, 2019 refers to the fundamental right of “Right to Privacy” by the honourable Supreme Court of India, in the famous case of Puttaswamy VS Union of India.

The Government of India has now realized the need for an act which will solely look into the matters related to the right of privacy and to protect the data of an individual. The Bill has been passed in the Lok Sabha and has now been passedto the Standing committee.

 

History

 

In recent years, India haspassed through several technological developments which have led to the huge amount of data generation through various activities and the need to protect this data has also increased. Many companies rely on this data to make important decisions in a firm. Even the government for its state affairs and benefits depends upon the large scale collection and usage of this data. One such example of this is the biometric identification and Aadhar verification by the government.

A petition in Supreme Court of India was filed in the year 2012 challenging the constitutional validity of Aadhar on the grounds of that it violates the individual’s right to privacy. After this in August 2017, a Supreme Court bench consisting of 9 judges declared the right to privacy as a fundamental right of Indian citizens. The court alsostated that the right to privacy is protected by the right to life and personal liberty under Article 21 of the constitution. The court also observed that privacy of personal data and information or “informational privacy” is also a characteristic of right to privacy.

Other countries formulated regulatory bodies and frameworks a while agoto protect an individual’s personal data. Taking cognizance of this, in July 2017, a committee of experts was formulated under the chairmanship of Justice B.N. Srikrishna to:

  1. Research issues related to the protection of data
  2. Find solutions through which an individual’s data could be protected
  3. Suggest a Bill for the same so that it can be enacted in legislation

Finally, on July 27, 2018, the Bill was presented to the Ministry of Electronics and Information Technology which asked for the protection of an individual’s personal data in a manner through which data would be protected and the regulatory bodies set up could oversee the data processing method.

 

Protection of Data through the Bill

 

The data protection Bill imposes few obligations on the entities which have the right to control the data, and these entities are known as “Data Fiduciaries”. These fiduciaries can determine the purpose and means of its processing, and it includes both government as well as private entities. The person whose data is referred or processed is known as “Data principal”. If these compliance obligations are not been followed, then the burden is shifted to the data fiduciary.

The obligation mainly includes:

  1. It has now become essential to let the data principal know before collecting their data.
  2. To make sure that the data which is stored is accurate and correct.
  3. The data shouldbe stored and processed only for specific reasons.
  4. A valid consent has to be taken from the data principal before processing the data. If the purpose is to transfer the data to any third party, then the consent required under such circumstance is relatively of a higher degree.
  5. Under this Bill, one of the major obligations is to provide the data principal with certain rights. He/she should have the right to erase, protect, access, correct, and prevent disclosure of the data.

The obligations are structured in such a way that it secures the position of the data principal and also gives them ownership.

The Regulatory body/Adjudicatory body is called the “Data Protection Authority” which will check and imposepenalties for non-compliance of the above-mentioned obligations. It is considered as an overlooking authority which will look into all the matters related to the Bill.

 

Exemptions under the Bill

 

Though the Bill is enacted for the majority of the firms of India, it still has certain exemptions:

  • Manual processing done by the small entities is not mandatory as they don’t have the sources to implement such commitments.
  • The entities which process data for BPO industry, research industries, and for statistical purposes are also excluded whether it is a public or private company.
  • The entities which work in relation to legal proceedings, journalist purposes, national security, prevention, detection, investigation and prosecution of contraventions to law, or for personal and domestic purposes are also exempted from the obligations of data fiduciaries.

Apart from the above exemptions, there is a specific exemption which only applies to the Government. The Central Government can exempt any of its agency from all the provisions of the Bill and such agency which can also be referred as data fiduciary will be able to process all the data of the data principals ( without informing them ). The list of such exempted agencies can also be formatted from time to time, which means such agencies can be added or subtracted on a timely basis.

 

The vested interest of the Government

 

Data protection authority has been formed to look after all the matters related to the data processing methods of the data fiduciaries. These data fiduciaries are obligated to work under the procedure laid down by the Bill and therefore, a regulatory body has been formed to keep a regular check. If the regulatory body is not formulated, then the obligations imposed on the data fiduciaries is meaningless as there would be no procedure through which this data fiduciaries could be held responsible.

Data Protection Authority will look after matters such as:-

  • how the consent is taken from the data principal,
  • the method through which data is processed,
  • deletion of the data, the safeguards used to protect the right of the data,
  • form of manner and maintaining records, etc.

But a “Memorandum” attached to the Bill, clearly states that making of any regulations by the Data Protection Authority may make such regulations only with the due consideration of the Central Government. The regulatory body has to be formed by the Central Government.

This control of the Data Protection Authority by the government is a clear picture of the vested interest of the government in the powers to make rules and regulations for the data fiduciaries. The government will act as a data fiduciary and on the other hand, it will also be involved in controlling the obligations of data fiduciaries. Therefore, this role of government where it plays both the victim and the attacker is highly questionable and will require certain amendments or removal of such memorandum.

 

New terms enacted in the Bill

 

With the formulation of a new Bill, the Government of India has also enacted certain new terms in the Bill. Those terms are:

  1. Sandbox

However, the creation of a sandbox is slightly questionable as these fiduciaries would be allowed to access the personal information of an individual without any obligation, thus violating the fundamental right of Indian citizens that is “right to privacy”.

 

  1. Non-Personal Data

It was highly recommended that the Bill should be only limited to the personal data of an individual which reveals personal information. In fact, the Bill which was drafted in 2018 by the Srikrishna committeeclearly stated that the Bill is applicable only to the Personal and not the anonymized data.Quashing this, the new Bill proposed in Lok Sabha takes in consideration the non-personal or anonymised data too leading to better formulating of evidence-based policy by the Central Government.

This consideration is questionable as non-personal data of an individual has no direct connection with the right to privacy. Further, most of the companies which are data fiduciaries legally have the right to process the non-personal data which they have generated through the databases.

 

  1. Social Media Role

The Bill introduced a new concept known as Social Media Intermediary and empowers the government to make some social media intermediaries as the “significant data fiduciaries”. These fiduciaries will have to follow all the norms and regulations laid down by the Data Protection Authority once the Bill is enacted.

These social media intermediaries will then be verified by the Data Protection Authorityand will show a verification mark. The documents required to get the verification mark will further depend on the type of social media intermediary, thus leading to biases and partiality.

 

Loophole of the Bill

 

In the proposed Bill, there has not been any timeframe given within which the Data Protection Authority will be formed which will regulate the working of the data fiduciaries. On the other hand, as soon as the Bill becomes an act, the government will be allowed to access the data without any obligations due tothe exemption policy mentioned in the Bill.

 

Conclusion

 

The Personal Data Protection Bill, 2019 has been proposed in Lok Sabha and is yet to be passed by the Rajya Sabha. The Bill will work in favour to protect the individual's data, thus protecting the right to privacy and other fundamental rights of the Indian citizens. Once the Bill is passed in the Rajya Sabha itwill formulate to become an act. The Bill will be helpful to access the data legally with obligations.

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Jurisdiction of Consumer Redressal Forums

By: Adv. Jayatinn B. Laalwani Consumer Grivances 15 Jan 2020

Introduction

The Indian economy has been growing since independence and reaching new standards year by year. A rapid growth in the economy has always resulted in surprising the existing market players with new refined and polished players, increasing the gravity of the competition among the vendors and urge of strengthening the position of the business either by profit or broad customer base. In such an area, where there is a cut-throat competition, it became essential to maintain the consumer’s safety. Sellers, in order to make more money, may use unethical practices that may put consumers at risk. In order to avoid the situation and promote consumer’s safety, the government of India came up with a law known as the Consumer Protection Act,1986. The Consumer Protection law came with the provisions conditioning sellers to sell goods and provide services in compliance with the law made on this behalf. Consumer Protection Act, 1986 established three different authorities at three different levels to regulate and resolve matters related to consumers, such authorities have received their powers from the Act, following are the three authorities:

  1. National Consumer Dispute Redressal Commission.
  2. State Consumer Dispute Redressal Commission.
  3. District Consumer Dispute Redressal Commission.

 

Consumer Protection Act, 2019 has repealed the Consumer Act, 1986.

 

Jurisdiction of National Consumer Dispute Redressal Commission

 

National Consumer Dispute Redressal Commission is at the top of the hierarchy, and it works as a Redressal Forum as well as an appellate authority. It also plays a vital role in monitoring the activities of the State Consumer Dispute Redressal Commission and the District Consumer Dispute Redressal Commission.

 

Jurisdiction of National Consumer Dispute Redressal Commission is categorized under the following heads:

  1. Pecuniary: - The National Commission deals with matters that exceed the monetary limit of Rs. Ten crores and above.
  1. Territorial Jurisdiction:  The territorial jurisdiction expands to all states except the state of Jammu and Kashmir, but the person filing any complaint from outside the territory of India will not be entertained by the National Commission under this Act.
  1. Appellate Jurisdiction: - National Commission has an appellate authority that means it can entertain appeals against the orders issued by State and District Consumer Dispute Redressal Commission. Any person intending to file an appeal before the National Commission can file it within the period of 30 days, condonation of delay will be allowed only if a proper justification is provided.
  1. Revisional Jurisdiction: - A revisional jurisdiction states that the National Commission can ask for the records of the State Commission in the situation of any decision provided by the State Commission is incorrect in the opinion of the National Authority. Following are the instances on which the National Commission can demand the records from State Commission:
  1. Whether the commission has exercised its jurisdiction beyond their authority
  2. Whether the commission has failed to exercise their jurisdiction entitled to them
  3. Whether the commission has exercised their jurisdiction illegally
  1. Review Jurisdiction: - National Commission can review its judgements if they are of the opinion that such judgement/ decision requires a revision.

 

Section 67 of the Consumer Protection Act, 2019, states that if any person who is not satisfied with the decision of National Consumer Dispute Redressal Commission may appeal against such authority to the Supreme Court within the period of 30 days from the order. Any person wanting to file an appeal against the National Commission will only be entertained by

 

Jurisdiction of State Consumers Dispute Redressal Commission

 

State Consumer Dispute Redressal Commission is established to resolve the matter related to consumers at the state level under the Consumer Protection Act, 2019. Currently, there are 35 State Commissions in India.

 

Jurisdiction of State Consumer Dispute Redressal Commission:

  1. Pecuniary Jurisdiction: - State Commission will entertain the matters where the cost of goods and services exceeds One CroreRs, but it won’t entertain or deal in any matters that exceed the cap limit of ten crores.
  1. Territorial Jurisdiction: - As far as the State Commission is concerned, it can deal in all the matters related to its geographical limits of the state.
  1. Appellate Jurisdiction: State Commission has been authorized by the Consumer Protection Act to deal and accept all the appeals against the order of the District Commission. Hence, any person who is aggrieved by the decision of the District Consumer Dispute Redressal Commission can file an appeal in the State Commission within a period of 45 days. Delays can be condoned if any valid justification provided by the concerned person only at the discretion of the court. Any person wanting to file an appeal against the District Commission will only be entertained by the State Commission if such person deposits a minimum of 50% of the amount involved.
  1. Revisional Jurisdiction: The State commission can act as the revisional board for the records of the District Consumer Redressal Commission if the States Commission is of the opinion that District Commission has laid down a judgement that is not complying with the provisions of the law. Following are the following reason on the basis, State Commission can ask for the record:
  1. Whether the commission has exercised its jurisdiction beyond their authority.
  2. Whether the commission has failed to exercise its jurisdiction.
  3. Whether the commission has exercised its jurisdiction illegally.

 

Jurisdiction of District Consumer Redressal Commission

 

District Consumer Redressal Commission is the district level commission established under the Consumer Protection Act to resolve and regulate the matters dealing with district-level problems of the consumer.

 

Jurisdiction of the District Consumer Redressal Commission.

  1. Pecuniary Jurisdiction: District forum can entertain all the matters relating to the district level where the cost of transaction or goods and service is below One CroreRs. If the monetary amount exceeds Rs one crore, the matter will be filed in the State forum.
  1. Territorial Jurisdiction: As far as the territorial jurisdiction is concerned, the district forum can entertain all the matters related to or to the extent of its geographical limits.
  1. Appellate Jurisdiction: Being the lowest court in the hierarchy of the authorities according to the Consumer Protection Act, it does not have any appellate jurisdiction.
  1. Review Jurisdiction: - The District Commission has the power to review its own order if it is of the opinion that there is an apparent error in its order or in any application made by any parties, within a period of 30 days.

 

Statute of Limitation

Any person willing to file a suit under the Consumer Protection, 2019 will only be allowed or permitted if such person files the suit within the period of two years. The National Commission, State Commission and District Commission will provide condonation of delay at the discretion of the mentioned authority only under exceptional circumstances.

 

 

Case Laws

 

Rajeev Hitendra Pathak Vs Achyut Kashinath Karekar, (2011) 9 SCC 541

In this case, the main question which arose was ‘whether the District Commission and State Commission have the power to set aside their own ex-parte orders?’ It was held that the Statute does not provide any provision for exercising such powers. Hence the District and the State Commission cannot exercise power to set-aside their own ex-parte orders.

 

Coco-Cola Case(2016)

In the year 2007 Hanfi, bought the bottle of Coco-Cola and was admitted to the hospital for food poisoning. The bottle that he bought was found contaminated by fungus and insects, later to this act, MosoofHanfi moved the District Court, which gave its decision in his favour and the company was liable for a compensation of Rs. 50,000.

As the amount claimed by him was Rs.4 Lacs, he moved the State Commission of MP which also gave a decision in his favour. Appealing against the decision of State Commission, Coco-Cola filed a suit in the National Commission.  NCDRC dismissed the appeal of Coco-Cola giant filed against the order of Madhya Pradesh dispute redressal commission by awarding compensation to Masoof Ahmed Hanfi of Rs. 50,540 payable by the Company. 

 

Manjeet v/s National Insurance Company (2017)

‘A’ a person hired a truck from ‘B’ on hire purchase agreement which was insured for a year. One day as he was transporting the goods from one place to another in the truck, he saw few men asking for a lift, as the road had no other way for commutation he decided to help these people by giving them lift in his truck, after a while of a drive these men asked to halt the truck to sideways for a nature’s call, as everyone alighted from truck these men assaulted the driver and tied his hand with a rope and stole the truck after the owner made claims to insurance company for payment of insurance amount, insurance company disagreed with the claim stating that giving lift to stranger was beyond the provision of policy and performing of such act does not hold insurance company liable to pay the amount. Repealing the arguments of the insurance company, Supreme Court decided that giving lift is a humanitarian gesture and such act does fundamentally nothing contrary to anything that states contrary to the provision of insurance. Justifying, the Supreme Court awarded monetary compensation in a way that insurance company would be liable to pay 75% of the total amount with interest of 9% P.A. to the appellant.      

 

Ms. Rajni Devi Vs Astha Hospital and Maternity (2019)

Rajni Devi was suffering from the medical problem (stones) in both her kidneys. She approached Astha Hospital for her medical treatment. The doctors of Astha hospital advised her to undergo surgery for removal of stones from the kidneys. The surgery was performed and Rs.60,000/- was charged. After discharge, she was suffering from the same pain which she had earlier before the surgery. She obtained ultrasound report and in that it was clearly seen that the stones were not removed properly. There was a deficiency in service. District Commission ordered to refund the sum of Rs. 60,000 with interest at the rate of 9% P.A from the date of complaint till the date of payment, Rs. 10,000 as an expenditure incurred for re-conducting operation, Rs. 3000 for litigation cost and Rs. 10,000 for mental agony. An Appeal was filed before State Commission by Rajni Devi for more compensation. The State Commission held that the District Commission had granted reasonable compensation for mental agony and harassment.

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Does telephonic consultations amount to culpable negligence?

By: admin Medical Negligence 08 Jan 2020

What is section 304 of the Indian Penal Code

The section states that whoever commits culpable homicide not amounting to murder shall be awarded imprisonment for life or for a specific term which may be extended up to 10 years and also fine may be imposed on certain cases. It is a non-bailable offence. There are two parts in this section:

First is when an act is done with the intention of causing the death of that particular individual or causing bodily pain or injury which may result in the death of the person then they shall be awarded imprisonment with up to 10 years or more depending upon the discretion and decision of the judge in a particular case.

Secondly, when an act is committed, with the idea that the act may result in death, but not with the intention of causing death(or to commit an act that may directly result in the death of the person).

 

Telephonic consultation by doctors resulting in culpable negligence

 

It is important that the doctors should note that prescribing medicines via telephonic conversation to the patient without diagnosing the problem from which the patient is suffering may result in culpable negligence under section 304 of the Indian penal code.

In today’s times, it is always better that all medical practitioners follow a prescribed set of standard care treatment which they shall provide to the patient so that the medical practitioner does not get punishment with respect to any form of medical negligence as the laws are strict towards the medical practitioner and hence, it is always better to follow the prescribed norms which shall be as per laws.

An error in diagnosing the patient’s health issue shall come under medical negligence under section 304 but, in the case of prescribing medicines without diagnosing the patient’s health issue will result in culpable negligence.

 

Cases

 

  1. Doctor Jacob Mathew’s Case

In this case, the Supreme Court stated that if a doctor has to be made criminally liable for the patient’s death it is very important that the patient or the relatives of the patient must prove that the doctor was incompetent in performing the task or he/she was negligent towards the patients’ health. Whereas cases which are filed under the civil liability, mere compensation is awarded to the victims of medical negligence.

The Supreme Court has laid down certain guidelines as to when an action be taken against medical practitioners with reference to medical negligence, they are as follows-

  • In cases of the error caused while judging the best alternative treatment that could be done in the case. The doctor cannot be accused of culpable negligence in such a case.
  • The medical professionals shall be held liable if they do not possess the requisite professional skill.

 

  1. Martin F D’souza Vs Mohd Ishfaq Case No- 3541 of 2002

In this case, decided by the Supreme Court of India, the two-bench judge explained certain precautions which should be taken by all medical practitioners so that they can protect themselves from complaints which arise due to medical negligence. Further, it lays down that telephonic conversation is under the preview of culpable negligence and one must not prescribe medicines on phone without properly examining the patient.

Sometimes, the telephonic consultation may save time and is more flexible in terms of accessibility as it is more convenient for both the doctor and the patient but it is important that the doctor must arrange a face to face meeting if the condition of the patient is not improving so that there is efficiency in the treatment and the method or the medicines can be changed timely.

The medical practitioner can also record the conversation that is happening between the doctor and the patient with the prior approval of the patient. So, it can be used as proof in case a matter involving culpable negligence arise.

It is important that all medical practitioners maintain all medical records and important data regarding the patient’s health and maintain the confidentiality of the same. It should also be the duty of the doctor to make sure, the information about the patient shouldn’t be shared with anyone.

In cases where the medical practitioners do not follow the rules laid down, it may sometimes lead to medical negligence and charge sheet may be filed against the doctor committing the act.

 

Protection from medical negligence or culpable negligence

 

  1. Meeting the standard care treatment method: The medical practitioner can keep himself up to date with the latest standard care treatment so that the health of the patient is not hampered, and so that it improves through the latest treatment methods which in turn will help the medical practitioner to avoid cases arising out of medical negligence or culpable negligence.
  2. Maintain proper documentation and health records of patients with that of prescribing medicines: It is always better to maintain a record of everything including the medicines that are being prescribed to the patient for improving the health condition. This step will face difficulty in execution in terms of telephonic consultations to maintain a record. And also, the conversations between the doctor and the patient, which can be used as evidence in the court of law if required in future.
  3. The doctor must engage in an interactive session with the patient:It is important that the doctor must speak to the patient and take prior permission before starting any treatment and also it is the duty of the doctor to explain the risks involved and the method or the process in which the treatment will be carried out by the doctor. This must also be recorded in the form of a document or in any other format.

 

Conclusion

 

Thus, if the medical practitioner is prescribing medicines to the patient on call, it would be the duty of the professional to record the conversation and maintain proper documentation of the treatment that he is giving to the patient on call so that he can protect himself from the cases of culpable negligence and as well as medical negligence. This will help the doctor to produce such documents as a part of the evidence in the court of law. The medical professionals shall discharge their duties and responsibilities with the utmost care and shall be careful while giving treatment or performing any minor or complex surgery.

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Consumer dispute Redressal Forum in dealing with Medical Negligence

By: admin Medical Negligence 08 Jan 2020

On 24th December 1986, the Consumer Protection Act (COPRA) had been established by the government of India to safeguard the rights and interests of the consumers. However, this act was later modified, and new clauses were added and amended to provide better protection to the consumers in general. This article is going to elucidate certain concepts relating to medical negligence and its involvement under COPRA.

 

Who are consumers?

 

The consumers with relation to the medical industry are:

  1. The patient who pays the doctor for availing the services.
  2. Either of the spouses, parents or any other family relatives.
  3. The legal heirs or the legal representatives of the patient.

 

It was only after the landmark judgment given by the Supreme Court in the case of Indian Medical Association Vs V. P. Shanta that the medical industry and the medical professionals were brought within the ambit of the Consumer Protection Act 1986 under section 2(1)(o) of the Act.

The relationship between a doctor and a patient is completely based on trust and confidence. In the course of the treatment, if the doctor violates any of his/her duties, it amounts to medical negligence by the doctor.  Thus, it is important for the doctors and the patients to know the rules and regulations laid down through the various landmark judgements of the Supreme Court and other such provisions laid down through COPRA in order to safeguard themselves.

 

How can a patient approach the consumer forum

 

The consumer has the option to approach the consumer forum for exercising speedy redressal of medical negligence cases or they can also file a criminal case against the medical practitioner. The consumer must note that in order to file a consumer case under  medical negligence, they must be ready with the following documents:

  1. The prescription, the bills and the references given by the medical practitioner.
  2. One must maintain the medical history records before filing the case in the consumer forum.
  3. It should also be noted that the consent which is given by the patient or the relatives can also be used as evidence in the court of law.

 

Role of consumer dispute redressal forum

 

The Medical Council Act has enlisted provisions to control the negligent acts of medical practitioners in cases of medical negligence. The Indian Medical Association (now, the National Medical Commission) has the right to take disciplinary actions against the medical professionals, who have committed such an act.  Therefore, the consumer dispute redressal forum or the consumer court works as an additional remedy through which compensation is given to the consumers, in this case, patients and their representatives.

The consumer redressal forum, may or may not give the judgment in the favour of the consumer.

There is no specific set of the rules laid down for the consumer dispute redressal forum or the court with regards to medical negligence in India. However, it is high time to make guidelines that the consumer courts have to follow in cases of medical negligence so that the cases of medical negligence are disposed of faster with appropriate compensation and justice to the consumer.

Even in cases of medical negligence under the consumer court, the court says that the burden of proof lies upon the patient or his family. For filing a medical negligence case, it is important to prove that the patient was treated wrongfully by the doctor.

 

Conclusion

 

In the light of recent events with relation to medical negligence, it is important to note that the consumer court should establish specific set of roles for themselves so that if patients approach the consumer forum or the court, then it would be the easier for the patients to determine whether their case stands a chance for speedy redresses of dispute, also, these guidelines will provide certainty. The consumers in the case of medical negligence should make a note that only compensation or monetary gains are awarded to them under COPRA and not imprisonment and other such punishments.

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Validity of Notices.

By: admin Documentation 30 Dec 2019

The legal notices in totality do not have any validity period. However, in certain tax-related matters, it does hold high weight age in those cases. The validity of notices in income matters plays a very important role, if the taxpayer does not reply to the tax authority in time, then the penalty imposed shall be high and the punishment will be either imprisonment or fine or both in certain serious offence of income tax matters. A notice is filed only for civil related matters under section 80 civil procedure code 1908, and income tax act for few tax matters.

Time period: The taxpayer gets 90 days to reply to the income tax authorities, for stating the reason for not paying the tax on time or other income tax issues.

 

If Notice Remains Undelivered

 

Even after sending multiple notices to the accused party, if they do not respond, then one can initiate the legal proceedings by filing the case against the accused party. A legal notice is not always compulsory, but in cases where money recovery is the subject matter, then it does have a statutory value and may act as evidence in such cases.

However, if a person or an organization sends a notice which is not required or is factually incorrect or illegal or unwarranted, it can be considered as an offence.

There are certain situations where action has to be taken for undelivered notice.The following situations are given below:

  1. Refusing to accept the notice: If a party refuses to collect the undelivered notice even after sending multiple notices then such notice shall be deemed valid, and it shall be said to be a valid notice. Therefore, such a notice cannot be rejected at any cost.
  2. In cases where no knowledge of notice exists: In cases where the notice is not delivered due to no person being present at the residence, or due to some personal reasons or if there is any inconvenience regarding the exact address of the resident where it has to be delivered. Thus, it is always advisable to proceed with the legal proceeding with an n advocate.

 

Is It Mandatory To Send Legal A Notice?

 

As per section 80 of the civil procedure code 1908, it is mandatory to send a legal notice before filing a case if the opposing party is a government sector or a public official. Also, to initiate arbitral proceedings, it is mandatory to send a legal notice.

In Alupro buildings systems Pvt. Ltd vs Ozone overseas pvt.ltd, it has given a clear picture regarding the object and purposes of sending the notice under section 21 of the Arbitration and Conciliation Act and that sending of notices is compulsory. In cases, where notices have not been sent, the legal proceedings cannot be initiated between the parties and thus, creating the limitation for the same.

There is no specific law that states that it is mandatory to send a legal notice to other parties other than the government sector or officials. However, it is considered to be a good practice to send a legal notice in order to avoid long legal battles and to promote quicker outside court settlement.

The notices are also valid, if it is sent via email or WhatsApp or through other social media, and this is guided under the Information and Technology Act 2000.

 

Conclusion

 

Even though one may feel that notice is not mandatory to be sent to the other party, it is always advisable to draft one with the help of an advocate in order to avoid legal hiccups when proceedings take place in the court of law. There are no set of rules and regulations regarding notices and structure of notices, so it is the best time to make an act regarding the same that it will help in the smooth functioning of various courts of law in India. One must, therefore, be careful while drafting a notice, especially which is related to tax and other money recovery matters.

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Response to a Legal Notice

By: admin Documentation 30 Dec 2019

A legal notice is an official document which is used for starting a formal communication between two parties who may have entered into a dispute regarding any particular issue. One of the parties may send the legal notice to another in the view that the other party may read and understand the legal notice which has been sent to them and give a proper response to the same within the time period. There are no set rules and regulations laid down under the Indian law which govern the response to a legal notice.

 

Cases Where Notices Are Sent

 

The following are the most common cases where the notices are sent to the other party. This is not an exhaustive list.

  • Property matters
  • Notice in consumer cases
  • Employer and employee cases
  • Marriage related cases
  • Cases under section 138 of the negotiable instruments act 1881.
  • Cases under section 80 of the civil procedure code

 

How To Respond A Legal Notice

 

Step1: Reading of the notice

First and the most important step after receiving a legal notice is to read the objective of the notice. Then one can refer the terms and conditions of the contract that has been taken into consideration. One may choose to deal with the situation with a mutual settlement or enter into legal proceedings.

Step2: Consult a qualified Advocate

If after reading the notice, one feels that it is not appropriate and not related or there is some ambiguity, then they can approach a qualified Advocate and decide the future procedure of the case.

Step3: Explaining the matter to the advocate

Once the advocate understands the matter, one can draft a counter-notice or may choose to settle.

Step4: Copy of the reply

After responding to the legal notice, one must keep proof of the same which can be used for future reference.

 

Time To Response

 

A party should try and reply to the notice as soon as possible and within the prescribed amount of days as mentioned in the sender’s notice. If it is a tax-related matter, then the response must be given to the income tax authorities within 6 to 7 working days to be on a safer side. However, there is generally no strict action taken against the individual who has not responded within the prescribed time period. Only in the case where the money is involved, certain strict actions can be taken against the individual.

 

Is It Mandatory To Reply To A Legal Notice?

 

It is not always compulsory to give a response to a legal notice under the rules and regulations given under the law. But it is still advisable to reply to the legal notice within the time period which it has to be replied with the help of an experienced advocate in order to avoid the matter from going into litigation.

Ina case where no reply has been sent to an important legal notice, it may become an added advantage to the sender of the notice during the legal proceedings and not replying to a legal notice may create problems in the future.

 

Income Tax Notices

 

It is important that an individual or the firm responds to the income tax notices if they have received one. The income tax notices can be sent to the individual on the following cases:

Section 131 (1A): Notice is issued under this section when the income tax officer wishes to investigate the income of a particular individual so that they can find out the true income of the same individual. The consequence of not responding to the notice or fails to produce the documents is a penalty of Rs. 10,000 or more.

Section 133(6): If the notice is sent to the taxpayer under this section, the income tax officers, need some information relating to a certain transaction during that particular transaction year. If the individual does not respond to the authorities within the prescribed time, fine of Rs.10,000 may be imposed and such other punishments may be levied as decided by the income tax officer.

Section 139(9), Section 143(1), Section 143(2), Section 245 and such other matters which may be related to income tax return must be responded on time to avoid severe consequences which may also result to imprisonment or high amount of fine.

 

Case Law

 

Bihari Chowdary Vs The State of Bihar

The Supreme Court had held that cases filed against public or government officials under the code of civil procedure must be given equal opportunity to prove their claim in cases where a legal notice has been sent to them. To avoid wastage of time and money during litigation matters, it's always better to give an opportunity to the other side.

 

Conclusion

 

It is not justified by law whether it is compulsory to give a response to each and every legal notice that come across to an individual, but notices pertaining to tax matters of a company or an individual, it is mandatory to respond to the income tax officers.

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Promotion of Medical Products.

By: admin Medical Negligence 30 Dec 2019

Department of Pharmaceutical asks industry to regulate promotional practices

The department of pharmaceuticals held a meeting on 23rd December, 2019, to look into the implementation of the uniform code (uniform code means a similar set of rules and regulations which shall be laid down for all pharmaceutical companies with regards to the marketing methods for selling their medical products) for pharmaceutical marketing practices which shall be adopted by all the pharmaceuticals companies. The pharmaceutical companies offer free medical samples to various medical professionals and therefore, the department of the pharmaceutical company regulates the ways of marketing their medical products and conducts the promotional practices as per the due process of law. This meeting was held to review the marketing practices of the pharmaceutical companies which shall be adopted by the Pharma companies.

The promotion of medical products should always be done in an ethical manner and they should introduce the medical products which shall be helpful for the treatment of a specific set of diseases.

 

Complaints against unethical marketing practices

 

Many complaints have come up regarding the illegal and unethical practices to promote a medical product and therefore, the department of pharmaceuticals has been set up to keep a strict watch on the violations made and as well as keeping an eye on the marketing practice.

 

The direction given by the secretary of the department

 

The Secretary of the Department of Pharmaceuticals has directed both the domestic and international Pharma companies that they should strictly comply with the code of ethics provided by the Indian Medical Council. A lobby group has also been created by the department of pharmaceutical where they can share comments and issues which they are facing weekly.

The meeting was conducted by the chairman of the Department of Pharmaceuticals Company shall also be chaired by the chairperson of the National Pharmaceutical Pricing Authority and also with other senior officials of both the departments.

 

The unethical method of marketing practices

 

The recent study by a non- governmental organisation ‘Saathi’ mentioned that their promotional methods still lack the proper conduct of marketing practices according to them as the medical representatives revealed that the Pharma companies bribe the medical practitioners directly or indirectly. For example: by giving them the bribe of foreign trips, expensive smartphones, jewellery and even tickets to entertainment events can be considered a form of bribe and any such other materialistic bribes to the doctors and the other medical staff.

 

Legal framework

 

The medical representatives of various pharmaceutical companies also reported that there was extreme pressure on them for achieving high sales target for their Pharma companies. Thus, the bribing practice shall be strictly regulated by the Indian Medical Council Regulations, 2002. The complaints of such malpractice have been sent to the department of pharmaceutical.

The department of pharmaceuticals has been striving since the year 2016 to draft and implement strict regulations for some marketing practices which should not give gifts or any sort of benefits to the medical practitioners due to which they may promise to prescribe such drugs to their patients. It was also initiated to draft transparency of the marketing practices which shall be carried out for the products.

 

Foreign laws

 

The Canadian government has drafted specific guidelines and also has laid down criteria for the licensing of various products which also includes medical products. The Canadian government also states that while advertising products give some profits to the company which is involved, the company cannot advertise false claims and should not mislead the consumers, and also the Pharma companies should be more careful as many lives are at stake when it comes to medical products and its effectiveness in treating diseases.

 

Conclusion

 

Despite initiating the code for regulating the marketing practices for Pharma companies and even after respective amendments made in the year 2015, still, the unethical way of marketing Pharma products haven’t changed a bit. The code made for protecting those marketing practices has failed to deter such marketing practices, and therefore guidelines can be laid down for marketing the medical products in a similar way as in the case of other countries.

If the pharmaceutical companies violate the rights of the medical practitioners in totality, then the department of pharmaceutical will make it compulsory for everyone to follow the rules and regulations, as discussed in the meeting and strict penal provisions shall be implied for those individuals who violate the laws which are made for governing the marketing practices for medical products in India and also internationally.

Therefore, it is a need to enact new laws for regulating the promotional methods of medical representatives, and so that rights of the medical practitioners are also protected and strict penalty shall be imposed on the individuals or the company who tries to achieve their sales target through unethical methods of marketing practices in India. A uniform set of guidelines should be established by all the companies until an act is not formulated.

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Doctors’ Bill: Prohibition of Violence & Damage to Property Bill, 2019.

By: admin Medical Negligence 30 Dec 2019

Introduction Of The Bill

In Kolkata, the patient’s family members allegedly attacked a doctor in the hospital and because of this; the resident doctors went on strike in support of their colleague. After this incident, there was a need to pass a bill.

A Prohibition of Violence and Damage to Property Bill, 2019 was drafted by the Health Ministry. The Bill proposes that anybody causing grievous hurt (under section 320 of IPC) to a doctor or any other healthcare professional would be imprisoned for up to ten years. The proposed bill also mentions that “all offences under this Act are cognizable and non-bailable”, but the offence under section 5(1) conveys minimum sentence of six months. Under section 9 (1)(i) of the bill, the compensation for damaged property has been based on fair market value.

The Ministry introduced the bill in the last session of parliament. The Health Services Personnel and Clinical Establishment (Prohibition of Violence and Damage to Property) Bill, 2019 intends to punish patients for unlawfully assaulting medical practitioners for up to10 years.

Rejection Of The Bill

 

After the bill was introduced in the winter session, the whole medical fraternity was waiting for the bill to be passed. Doctors have been facing violence due to the increasing issues of medical negligence.  However, due to certain objections, the bill was dismissed.

The Union Ministry of Home Affairs (MHA) during inter-ministerial consultations, stated that India has no separate laws for a particular profession such as lawyers or teachers. If the government of India passes this bill, it gives altogether a different status and law for the doctors, thus leading to chaos and partiality towards professions. They further added that every profession in India has some loopholes, and there can be better ways to handle them instead of demanding a new law. It was also considered that, if this bill gets passed, other professions would ask for the same from the government, leading to unnecessary laws and bills. Further, a senior from the MHA added that the IPC(Indian Penal Code) and CrPC (Criminal procedure code) are sufficient to deal with such issues. The bill was rejected by the MHA.

At the 20th convocation ceremony of National Board of Examinations, AshwiniChoubey stated that the government is troubled over rising instances of attacks on doctors on duty.

Bill Will Be Resent

 

The bill was made by an eight-member sub-committee comprising of officials and representatives of the Medical Council of India, Indian Medical Association, the all India institute of medical sciences and an experienced person from the Bureau of Police research and development.

The Union Health Ministry, Harsh Vardhan, stated that the bill was still under discussion and was not put on the back burner by the government. Senior Health Ministry stated that they would pursue it. We will resend the bill to the government.

It was also noted that the bill was specifically made for healthcare professionals, including the doctors, medical students, paramedical staff and also the diagnostic service providers and the ambulance drivers.

Although the points put up by MHA seem true, one cannot overlook the demand for comprehensive central legislation to put a check on the increasing violence against doctors and other healthcare professionals.

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Why less Indemnity cover is risky for Doctors?

By: admin Medical Negligence 30 Dec 2019

Negligence cases against medical professional are on the rise. Many instances of medical negligence have come into notice in recent years. It is believed to have a surge of 400%, from which certain cases have been solved by the Consumer Protection Act (CPA) since 1994. In this medical negligence cases, the compensation which is directed by the courts is usually in the denominations of lakhs and even Crores. At times, it is the relatives of the patient who file such cases. According to MrMahendrakumarBajpai, an advocate of the Supreme Court, “ cases of medical negligence have been doubled since the year 2014 as more and more people are challenging doctors expertise.” Further, a survey conducted in the year 2013, states that around 5.2 million medical-legal cases have been noticed.

The courts are becoming consumer-friendly, which means more and more cases, are disposed of in the favour of consumers. Therefore, it has become a sheer need to provide insurance coverage to the doctors.

 

Protection To Doctors

 

In the current situation, it has become necessary that doctors protect themselves against frivolous lawsuits. The tension and embarrassment that comes through such lawsuits is something which an individual can’t ignore. The only solution doctor has right now is to minimize the financial risk that comes along these lawsuits. Compensation that arises in such cases is extremely high, and therefore, through an Indemnity Insurance, the doctors can set aside the financial drawbacks through these lawsuits.

 

What is Indemnity Insurance?

 

Indemnity Insurance is a type of legal agreement where both parties agree to certain pre-defined terms and conditions. This is a contractual agreement which should be in written form and duly signed by both the parties. It is designed in such a way that safeguards the interest of the professionals against paying huge compensations. This kind of insurance not just covers the compensation amount, but it also covers up the legal remuneration such as the fees given to lawyers. More the amount of Indemnity Insurance, more are the chances of less risk in the future. In simple words, risk reduces as the amount of insurance increases. The type of Indemnity Insurance also depends upon the type of doctors. Mostly, Indemnity Insurance agreements are valid for 12 months. After every 12 months, a new agreement has to be formulated.

The threat of litigation is so high that certain corporate and private hospitals have made it compulsory for the doctors to avail Indemnity Insurance before they join as a consultant in the hospital.

 

Will Indemnity Insurance Benefit The Doctors?

 

Recently, a panel formed by the Government of India revealed that out of all the cases filed for medical negligence, only 15% of the cases were genuine. Despite this, the amount of compensation and the number of cases both are on the rise. Medical negligence cases have created a serious threat in the medical fraternity. As under such circumstances, mostly, the degree of power is in the hands of the patient.

Therefore, it is always advisable to be prepared for such circumstances. As it is said, “Precaution is always better than cure”.

 

Few Benefits Of Indemnity Insurance:

 

  • Insurance can be altered mid-term. The amount of insurance can be increased or decreased as per the doctor’s requirements.
  • Hassle-free documentation.
  • Indemnity Insurance covers a large area; from compensation to legal fees incurred. Insurance covers losses as well as risks.

 

Cases Where Huge Compensation Was Awarded

 

  1. KunalSahavs AMRI case

This complaint was filed by KunalSaha for his wife, AnuradhaSaha who died at the age of 36 due to the sheer negligence of doctors in Kolkata.

Itis one of the most significant case law pertaining to medical negligence in India.KunalSaha, a doctor by profession himself, filed a case against the doctors of AMRI hospital in Kolkata. However, after his petition was dismissed in Calcutta High Court and West Bengal Medical Council, he went to the Supreme Court of India. After a proper investigation, the Supreme Court directed the hospital and the doctors to pay a compensation of Rs. 5.94 crores along with interest, i.e. Rs11 crores. This is the maximum amount that has been awarded as compensation for medical negligence.

 

  1. Delhi based case

Recently, in Delhi, a hospital was directed by the apex Consumer Court to pay a compensation of Rs. 8 lakh to the widow of a private school teacher. The reason of this compensation was that the hospital without a proper health checkup discharged the patient which led to her death within a few days.

 

  1. AIMS case

A few years ago, the All India Institute of Medical Sciences was directed by the Supreme Court of India to pay a compensation of Rs. 5 Lakh to the patient after it was observed that a doctor wrongly diagnosed a woman with cancer and surgically removed the affected part.

 

Conclusion

 

As mentioned above, there are a lot more cases where medical negligence gets proved by the complainant, and then the doctors or the alleged hospital pay a huge amount of compensation. Due to this unreasonable increase of medical negligence cases, it has become very important that doctors start enrolling for Indemnity Insurance which will make sure that at least the financial losses are minimized. Further, it is advisable to take the help of a lawyer who is experienced to make such agreements and who can explain the legal consequences.

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