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INTRODUCTION
The consumer Protection Act, 1986 that came into force on 15th April 1987 is a welfare legislation mainly tilting towards the consumer just as the Industrial Dispute Act is loaded in favour of workers.
It provides for speedy and inexpensive settlement of disputes within a limited time frame, as against civil actions which are expensive and take years in coming to a settlement.
Who Is liable
1. Doctors with independent practice rendering only free services.
2. Private hospitals charging all.
3. All hospitals having free as well as paying patients, they are liable to both.
4. Doctors / hospitals paid by an insurance firm for treatment of a client or an employer for the treatment of an employee.
Who Is not liable
1. Doctors in hospitals, which do not charge their patients.
2. Hospitals offering free services to all patients.
  1. Procedure for lodging complaint
  2. Some Do's
  3. Some Don'ts
  4. Consent
  5. International code of medical ethics
  6. Declaration of Geneva

PROCEDURE FOR LODGING COMPLAINT

Individuals can lodge complaint at any center with or without a lawyer and by paying nominal fees.
The three centers for lodging the complaint are
District level :-- At this forum person can claim for compensation towards damages up to a maximum limit of Rs 5 lakhs.
A District Judge and two other members chair this.
State level :-- At this level the claim for compensation is enhanced to Rs 5-20 lakhs and High Court Judge and two other members chair it.
National level :-- Here the compensation claim is more than 20 lakhs. This forum constitute a Supreme Court Judge and four other members.

Preventive steps against litigation

Where the doctor feels that the patient is suffering from some major illness in which complications are pre-existing or are likely to occur, he should take proper precautions.
The precautions desired to be taken
Some Do's
Mention your qualification on the prescription - only recognized degrees.
Always mention date and timing of consultation. Mention age, sex, weight ( if child ).
In complicated cases record precisely history of illness and substantial physical findings about the patient on your prescription.
Mention the condition of patient in specific terms. Avoid non-specific terminology.
Record History of Drug Allergy
write name of the drugs clearly
mention additional precautions.
mention if patient or attendant is under effect of alcohol / drugs.
Some Don'ts
Don't hesitate to discuss the case with your colleagues.
Don't hesitate to discuss the case with patients / attendants.
Don't write Ayurvedic formulations.
Don't allow substitutions.
Don't examine a patient if you are sick, exhausted, under effect of alcohol.
Never talk loose of your colleagues.
Don't adopt experimental methods in treatment without patient's consent.

CONSENT

According to section 13 of Indian Contract Act, 1872, the term 'consent' is defined as "When two or more persons agree upon the same thing in the same sense they are said to consent"
Who can give consent :-- For the purpose of clinical examination, diagnosis and treatment consent can be given by any person who is conscious, mentally sound and is of 12 years and above of age as provided under sections 88 and 90 of the Indian Penal Code, 1860.
Consent is taken undersection 13 of the Indian Contract Act, 1872. This Act, however also provides under Section 11 that only those persons who are of and above 18 years of age are competent to enter into a contract.
written contract should e obtained from parents / guardian of a patient who is below 18 years.
When consent is not valid :-- consent given under fear, fraud or misrepresentation of facts, or by a person who is ignorant of the implications of the consent, or who is under 12 years of age is invalid ( Sec. 90 I.P.C. )

Consent not always valid

To be valid the consent must be real.
consent wil be invalid if it is obtained without proper explanation or by fraud or misrepresentation.
Thus, the consent obtained when the patient is under sedation cannot be considered valid, as the same is not obtained voluntarily.
In most of the cases filed against the doctors it is alleged that no consent was obtained.
Obtaining of consent will thus be a cornerstone of protection against litigation.
Depending upon the circumstances in each case consent may be
  1. implied
  2. express, or
  3. informed

1.IMPLIED CONSENT ( TACIT CONSENT )

This is by far the most common variety of consent in both general practice and hospital practice.
The fact taht a patient comes to a doctor for an ailment implies that he is agreeable to medical examination in the general sense.
This however does not imply consent to procedures more complex that inspection, palpation, percussion, auscultation and routine sonography.
For other examinations, notably rectal and vaginal and withdrawal of blood for diagnostic purpose, express consent ( oral or written ) should be obtained.
For more complicated diagnostic procedures, e.g., lumber puncture, radiology, endoscopy, C.T.Scan, etc. express written consent should be obtained.

2.EXPRESS CONSENT

Anything other than the implied consent is express consent. This may br either oral or written.
Express oral consent is obtained for relatively minor examinations or therapeutic procedures, preferably in the presence of a disinterested third party.
Express written consent is to be obtained for
  1. all major diagnostic procedures
  2. general anesthesia
  3. for surgical operations
  4. intimate examinations
  5. examination for determining age, potency and virginity, and in
  6. medico-legal cases.

3. INFORMED CONSENT

The concept of informed consent has come in recent years and patients who alleged that they did not understand the nature of the medical procedure to which they gave consent have brought many actions.
All information must be explained in comprehensible non medical terms preferably in local language about the
  • diagnosis
  • nature of treatment
  • risks involved
  • prospects of success
  • prognosis if the procedure is not performed, and
  • alternative methods of treatment.
The physician's duty to disclosure is subject to the exceptions
  • if the patient prefers not to be informed and
  • if the doctor believes in the excercise of coming to a sound medical judgement, that the patient is so disturbed or anxious that the information provided would not be processed rationally or that it would probably cause significant psychological harm.
This is known as Therapeutic Privilege.
In such a case it is advisable that the doctor should consult the patient's family physician.
Revelation of risk is always a compromise between reasonable information and the danger of frightening off the patient from beneficial treatment.
The three important components of such consent are
  1. information
  2. voluntariness, and
  3. capacity

PROXY CONSENT ( SUBSTITUTE CONSENT )

All the above types of consent can take the shape of Proxy Consent.
Parent for child
close relative for mentally unsound / unconscious patient, etc.

Situations where consent may not be obtained

1. Medical Emergencies. The well being of the patient is paramount and medical rather than legal considerations come first.
2. In case of person suffering from a notifiable disease.
  In case of AIDS / HIV positive patients, the position in India regarding it's being a notifiable disease or not is not yet clear.
3. Immigrants
4. Members of Armed Forces
5. Handlers of food and dairymen
6. New admission to Prisons.
7. In case of a person where a court may order for psychiatric examination or treatment.
8. Under Section 53 (1) of the Code of Criminal Procedure, a person can be examined at request of the police.
  Section 53 (2) lays down that whenever a female is to be examined, it shall be made only by, or under the supervision of a female doctor.

Certain High Risk Situations

Doctors should keep in mind certain high risk situations, which are common, cause for medical negligence actions, and require extra caution.
1. Acute abdominal emergencies, meningitis and chest infectins especially in children.
2. Retention of objects in operation sites.
3. Accidents & Emergency Departments.
4. Amputation of wrong limb, extraction of wrong tooth.
5. Obstetrics and gynecology are high risk specialities
6. Anesthesia along with surgeons, present a common target for litigation; the actual administration of the anesthetic is not usually the cause of complaint, but the many ancillary responsibilities such as
  • transfusions
  • injections
  • airways
  • catheters
  • diathermy
  • hot water bottle burns
may form grounds for allegations of negligence.
7. Therapeutic hazards :-- These can be avoided by
  • Administering the right drug, right dose, via right route.
  • informing patients / attendants of the potential risk of treatment.
  • Taking all possible steps to avoid undesirable consequences.
8. Failure of communication :-- A doctor should inform about the patient's medical condition in comprehensible language.
  In case of reference to another doctor , it is his responsibility to communicate directly with the second doctor and nor rely on the patient to carry any informal message.

WHAT SHOULD A DOCTOR DO IN THE EVENT OF A MEDICAL MISHAP

1. complete the patient's record and recheck the written notes.
2. Be frank enough and inform clearly of the mishap.
3. Doctors who are open minded and communicative are much less likely to be complained against as patients / attendants are extremely forgiving of errors made by a friendly and concerned medical attendant.
4. A high proportion of complaints are precipitated or escalated into legal action by a progressive breakdown of the doctor-patient communication.
after these initial responses, the doctor should contact
  • some other doctor
  • protection organization
to seek advice.

INTERNATIONAL CODE OF MEDICAL ETHICS

  1. Duties of Doctors in general
  2. Duties of Doctors to the sick
  3. Duties of Doctors to Each Other

Duties of Doctors in general
A DOCTOR MUST always maintain the highest standards of professional conduct.
A DOCTOR MUST practice his profession uninfluenced by motives of profit. .
THE FOLLOWING PRACTICES are deemed unethical
1. Any self-advertisement except such as is expressly authorized by the national code of medical ethics.
2. Collaboration in any form of medical service in which he/she does not have professional independence.
3. Receiving any money in connection with services rendered to a patient other than a proper professional care, even with the knowledge of the patient.
ANY ACT OR ADVICE that could weaken physical or mental resistance of a human being may be used only in his interest.
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.

Duties of Doctors to the sick

A DOCTOR MUST always bear in mind the obligation of preserving human life
A DOCTOR OWES to his patient complete loyalty and all the resources of his science. Whenever an examination or treatment is beyond his capacity he should summon another doctor who has the necessary ability.
A DOCTOR SHALL preserve absolute secrecy of all he knows about his patients because of the confidence entrusted in him.
A DOCTOR MUST give emergency care as a humanitarian duty unless he is assured that others are willing and able to give such care.

Duties of Doctors to Each Other

A DOCTOR OUGHT to behave to his colleagues, as he wants to be behaved.
A DOCTOR MUST NOT entices patients from his colleagues.
A DOCTOR MUST OBSERVE the principles of " The Declaration of Geneva" approved by the World Medical Association.
DECLARATION OF GENEVA

( As amended at Sydney, 1968)

At the time of being admitted as a member of the medical profession
I will solemnly pledge myself to consecrate my life to the service of humanity;
I will give to my teachers the respect and gratitude which is their due;
I will practice my profession with conscience and dignity;
The health of my patient will be my first consideration;
I will respect the secret which are confided in me. even after the patient has died;
I will maintain by all the means in my power the honor and the noble traditions of the medical profession;
My colleagues will be my brothers;
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient;
I will maintain the utmost respect for human life from the time of conception, even under threat. I will not use my medical knowledge contrary to the laws of humanity.
   
I make these promises solemnly, free and upon my honor.