Law and the doctor
Gupta, M C
Law and the doctor, Sunila Sharma (Paras Publishers, Hyderabad) 2005 209 pages. Price: Rs. 150/
Law is a specialty in itself and it would be unrealistic to expect doctors to know the meanings, nuances and shades of meaning of all legal terms or, even, to know details of law as such. They cannot even be expected to know basic principles of law, much as a lawyer cannot be expected to know basic principles of medicine. However, basic principles of law cannot be tampered with even when other professionals write or discuss about law. Such tampering, though unintentional, has occurred at places in the book, which can send wrong message to readers. However, in general, the author has done plenty of ground work for writing this book and has been able to make a difficult subject easy for doctors.
In Chapter 1, the author has stated on page 7 “Section 342, IPC, allows the doctor to decline to take up the responsibility of treating a particular patient in the following circumstances……”. There is no basis for such statement. Section 342 is titled: “Punishment for wrongful confinement”. Similarly, the statements regarding Articles 21, 32 and 226 of the Constitution on the same page are wrong. On page 13, while listing criteria for certification of death under the Transplantation of Human Organs Act, 1994, the subsection of the Act has been referred without listing the main section. On page 21, the definition and concept of Novus Actus Interveniens is wrong.
In Chapter 2, while discussing the Consumer Protection Act, the patient is referred to as plaintiff; the correct term is complainant. In the discussion of the service under the Act, the difference between a ‘contract of service’ and ‘contract for service’ needs to be explained. On page 38, it is stated that hospitals of central government are excluded from the purview of Consumer Protection Act and that hospitals providing services free of cost are covered under the Act. Both these statements are wrong. It is stated that the District Consumer Forum of Delhi is located at Qutab Institutional Area. As a matter of fact, there are nine Forums in Delhi, one of them being at Qutab. It is wrongly stated that the Delhi State Consumer Commission is located at Delhi High Court, while the correct location is Vikas Bhavan, IP Estate. It has been wrongly stated on page 42 that a complaint is not maintainable under Consumer Protection Act if ‘negligence on the part of hospitals and doctors is not so palpable that it can be called gross negligence’. This is a highly misleading statement. The author has got confused with the Suresh Gupta case, decided by the Supreme Court last year, where the degree of negligence was considered by the Hon’ble Court in relation to Indian Penal Code, not the Consumer Protection Act. Another incorrect statement has been made on page 43 that if the complainant dies during the pendency of the case, the complaint stands dismissed. On the same page, the time limit for filing an appeal has been mentioned as one month. Section 15 of the Consumer Protection Act clearly states that this period is thirty days. Law is precise and tries to avoid conflicts or ambiguities such as those that might be caused by the fact that a month may consist of 28, 29, 30 or 31 days.
In Chapter 3, the author has made a rather impossible statement at the end of Table 2 that “From a total of 1109 complaints related to the field of medicine, only 76 complaints were against the doctors”.
In Chapter 6, while advising doctors about how to avoid legal liability, the author gives the following unbelievable advice “Also, if the documents have been typed, disclaimers like ‘not read’ or ‘dictated but not read’ should be put with the signature”. It is cleat that it would further prove the negligence of the doctor.
In Chapter 7, the author has negated the basic principle in law that it is the complainant who has to prove negligence and not the doctor who has to prove his innocence. On page 106, it is stated that : “In cases such as these, the burden is on the health care system to prove that a bad outcome is not the result of negligent intrapartum monitoring”. The onus of proving negligence always lies upon the complainant.
In Chapter 9, the author writes that “It is expected of the doctor to appear in the court with his white coat”. This is neither expected, nor required, and is never done in actual practice.
In Chapter 11, the author states that a complaint to Delhi Medical Council was examined by the Executive Committee. This is never done. Perhaps the author meant the Disciplinary Committee.
The author has obviously taken pains to include a large number and variety of cases in the book. The sections related to trauma and anaesthesia are written quite in detail. The language of the book is lucid and there are very few mistakes.
The author would find the following suggestions useful for improving the next edition of the book:
i. A conspicuous lacuna is the absence of proper citation when decided cases are referred. Quite often, no citation is given at all. When it is given, mostly only the names of the parties are given, without any indication regarding the court concerned, the date of judgment or the source where published.
ii. There are quite a large number of cases referred which have not yet been decided. This should be usually avoided.
iii. There are instances when the information about cases cited is possibly or questionable. The author has cited on page 76 the case of Sh. Balbir Singh v. Doctors of Jyoti Nursing Home, whereby it has been stated that as per the judgment, the doctors were not held guilty of negligence. As a matter of fact, case is still pending in the State Commission, Delhi.
iv. At quite a few places, it is obvious that information, often relevant to US but not to India, has been directly lifted from the internet. This is especially noticeable in Chapter 14.
v. It would be better to label ‘Medical Informatics’ (Chapter 16), as ‘Documentation and Medical Informatics’.
vi. An increasingly common device being used by aggrieved patients now-a-days is to lodge a complaint with the Medical Council in addition to other litigation. The role medical councils in this connection has not been discussed.
vii. The author has unwittingly used certain terms in a wrong legal context. The most obvious is the frequent reference to jury, though there is no jury system in India.
M.C. Gupta
Advocate & Medico-Legal Consultant
G-17/9, Malviya Nagar
New Delhi 110017, India
e-mail: mcgupta44@gmail.com
Copyright Indian Council of Medical Research Oct 2005
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