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Medicolegal case of the month

Dr. Dilip B. Walke

Pune
Chairperson, Ethics & Medico Legal Committee, FOGSI
E-mail: dbwalke@hotmail.com

 

Doctor’s Duty In Reporting A Rape Case To Police
Ref : Regarding Section 39crpc And

Article compiled by Dr Dilip Walke, Past Chairman, Ethics and Medicolegal Committeee (2007-2010)

Acknowledgment: Dr Ravindra Bangal, Forensic expert, Mumbai

There is a question in the minds of Obstetrician and Gynaecologist whether it is mandatory for doctors to inform to police each and every case with history of sexual abuse; given the fact that it is considered to be a cognizable offense. We are often caught between this duty of ours and the wish of the victim to keep her name secret.
During the 3rd National Medicolegal Conference at Gurgaon, there was an extensive discussion regarding this topic with some of the legal luminaries and the carry home messages are being shared here for the benefit of all FOGSIANS.

  1. There exists a section called Section 39 of CrPC which gives a list of offences, the information regarding which is to be mandatorily provided to the police. That is, the doctor is duty bound to provide information about these enlisted offences (in Sec 39 CrPC) to the police. Failure to do so is punishable. However, the list of offences in Sec. 39 CrPC does not include the offence of sexual abuse. And hence, legally the doctor is not duty bound to inform the matter to the police, unless the patient or her relatives express their desire to do so or if the police seeks information about a particular case. Hence the message about reporting a case of sexual abuse is as follows
    1. The doctor should inform the patient (if >18yrs)/ parents or guardian in case of minor that the incidence narrated by the patient in her history amounts to a punishable offence and they have a legal remedy for it. If the patient/ parent or guardian does not have any objection for reporting the matter to the police, the doctor should promptly do so.
    2. Whenever the patient (>18yr)/ parent or guardian in case of minor express their desire to keep the matter as secret, we should perform our ethical duty of maintaining “professional secrecy”. However in such cases should always take in writing from the patient if she is a major / parent or guardian if patient is minor the following details:
      • That the doctor has explained that the incidence narrated amounts to a punishable office.
      • That the patient/ parent or guardian can complain to the police about it.
      • That she/ parent or guardian has requested the doctor to keep this secret to himself and not to inform the police about tit as they do not wish to file the police complaint in this matter.
    3. In such cases, we are duty bound to keep complete detail records of such cases (ref: Guidelines from CEHAT), including all the investigation reports, the samples taken if any and the clinical records under lock and key. In case, at a future date, if any authority (either police or judicial) asks for these documents then we are duty bound to handover the copies of these documents to the concerned authority and support the criminal investigation process. At the time of handing over such reports even to the police or judicial authority, the doctor should hand it over in a sealed envelope labeled as “PRIVILEGED COMMUNICATION”. All the enclosed pages should be numbered and attested. The number of total pages be mentioned and a due receipt to be obtained.
  2. Section 39CrPC:

Public to give information of certain offences.-

  1. Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code, (45 of 1860) namely:
    1. sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in Chapter VI of the said Code);
    2. sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquility specified in Chapter VIII of the said Code);
    3. sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);
    4. sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.);
    5. sections 302, 303 and 304 (that is to say, offences affecting life);
    6. section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft);
    7. sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity);
    8. Section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);
    9. sections 431 to 439, both inclusive (that is to say, offences of mischief against property);
    10. sections 449 and 450 (that is to say, offence of house-trespass);
    11. sections 456 to 460, both inclusive (that is to say, offences of lurking housetrespass);and
    12. sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes),
      shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.
  2. For the purposes of this section, the term "offence" includes any act committed at any place out of India, which would constitute an offence if committed in India.

(C) However, we also need to know the opinion of some experts who feel that doctors are still responsible under section 202 IPC, to inform to the police. The lawyers may use this to implicate the doctors. The section 202 IPC reads as follows

Section 202 IPC
Intentional omission to give information of offence by person bound to inform.
Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

  • The arguments against this stand is as follows
    • The words “which he is legally bound to give” plays a major role in interpreting this section. Neither section 39 CrPC or any other section puts this legal binding on the doctors to inform. And hence, the scope of Sec. 202 IPC, cannot be extended to the current issue under consideration.
    • If information about sexual abuse is given to police against the will and wish of the victim or her legal guardian or parents then it is not only against the ethical consideration of confidentiality but also amount to breach of article 21 of our constitution.

Comments and disclaimer

  • The above narration is as the law exists today.
  • The sections of IPC are interpreted by different legal luminaries and judiciary in different ways.
  • So, the above narration is also open for discussion and debate. The situation in some cases might not be as straight forward as the question suggests. So, the course of action to be taken may differ in different cases.
  • If anyone has different views on these sections of IPC and CrPC, please feel free to share your views by e mail to the webmaster or me, so that the picture gets clearer.
  • One suggestion which was shared by a delegate during the 3rd national Medicolegal Conference was that if the victim or her parents/guardian doesnot want us to inform the police about the case in particular, can we give a restricted information to the police that we are at that point of time treating a victim of sexual abuse, who wishes to maintain the secrecy regarding her name and other personal details?
    • This point would need further debate and opinions
  • While dealing with such cases, utmost respect should always be given to the law of the land by following the legal guidelines. However, at the same time, patient’s rights should be honored. Doctors should not forget their ethical duty of maintaining “professional secrecy”.
  • Thus, the Legal and Ethical issues should be weighed in the perspective of each and every case.

Dr. Dilip B. Walke

Pune
Chairperson, Ethics & Medico Legal Committee, FOGSI
E-mail: dbwalke@hotmail.com

 

 

Sameera kohli Vs Dr Prabha Manchanda
Supreme Court
16th Jan 2008
Jst B N Agarwal/Jst Naolekar/Jst Ravindran

Why is it "The case of the month"?

  • It's a landmark case because a three judge bench has finally defined consent in the context of medical negligence in Indian scenario
  • It deals with laproscopic surgery which is a commonly performed surgery these days.

Facts of the case

  • Unmarried  44yrs  old patient with bleeding PV with USG evidence of Chocholate cyst of right ovary with fibroid was posted for laproscopy.
  • Consent was taken for admission, laproscopy & SOS operative steps for endometriosis including laparotomy but there was no mention of hysterectomy
  • On table however, hysterectomy however was done after taking oral consent from her old mother who was waiting outside the operation theater
  • The fiancée of the patient created a scene in the hospital and took away the patient without paying the bill for which a police complaint was made by the hospital.
  • The allegation was that hysterectomy was done without consent of the patient. It has lead to she becoming prematurely menopausal for which she would now need HRT for a long period of time. Such alternatives should have been discussed before the surgery.

Judgement

  • The case shifted from State forum upwards due to appeals to the Supreme Court
    • Judges agreed to the well fought argument that doing TAH BSO in this case was not negligence. This fact was well supported by book references and expert witness. She was considered to have acted in good faith in the interest of the patient. The only problem she would suffer was the need for long term HRT.
    • However it was done without valid consent and that amounts to tortuous act of assault and battery
    • Allowed only Rs 25,000/- + bill amount + 5000/- legal cost

Supreme Courts view on consent

  • Consent of the patient before commencing a "treatment" (this includes surgery) should be real and valid
  • Patient should have capacity and competence to consent.
    • It means that the patient should be adult and of a sound mind
    • If both are not fulfilled the guardian has to give consent
  • His consent should be voluntary
    • It means that no one else can consent on behalf of the patient (unless minor or insane) and they can only consent as witness
  • Should be based on knowledge. It means that "adequate information" about
    • Nature of treatment
    • Benefits
    • Possible side effects
    • Available alternatives
    • Consequences of refusal of treatment
    • A balance communication is expected
  • Consent given only for diagnostic procedure cannot be considered as consent for therapeutic procedure.
  • Consent given for specific treatment procedure will not be valid for other treatment procedure.
    • The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expenses, or would relieve the patient from pain and sufferings in the future, are not grounds of defense in an action in tort for negligence or assault or battery.
  • The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes decision
  • There can be a common consent for diagnostic and operative procedures where they are contemplated.
  • There can also be common consent for a particular surgical procedure and an additional or further procedure that may be required during the course of the surgery.
  • Consent can be taken by assistant doctors.

Does SC expect us to talk about all possible complications?

  • There is no need to explain remote or theoretical risks involved, which may frighten or confuse the patient and result in refusal of consent for necessary treatment
  • Similarly there is no need to explain remote or theoretical risks of refusal of treatment, which may persuade the patient to undergo a fanciful or unnecessary treatment
  • A balance should be achieved

This case has been referred to as a case law several times subsequently

NCDRC ( Jst K S Gupta/ Dr Shenoy) 29th Sept 2008.Ram Gopal Varshney Vs Lasor Sight India Pvt Ltd

  • Cataract surgery was done on a 76 yr old patient but consent was taken only from grand son.
  • Case of loss of vision was well defended and no negligence found
  • 25,000/- + 10,000/- cost awarded because patients consent was not taken

NCDRC.Mrs Zeba Hamid Vs Hajela Hospital and ors.Jst Kulshreshta/Mrs Pramila S Kumar.31st Oct 2008

  • Primary infertility patent was posted for diagnostic laparoscopy + Hysteroscopy
  • Ovarian drilling and Salpingectomy was done without consent
  • Rs 25,000/- + Rs 2000/- awarded

NCDRC.Mrs Chandoke V Sir Ganga Ram hospital

  • Patient with DUB with 2 previous LSCS was posted for TAH
  • On table doctor decided to do vaginal hysterectomy
  • Laparotomy had to be done because of bleeding from ovarian stump
  • Patient ultimately landed up with nephrectomy and suffered
  • Judgment
    • Bleeding is no negligence
    • Deviation from route not acceptable in unless life saving
    • 5 lacs awarded

Dr. Dilip B. Walke

Pune
Chairperson, Ethics & Medico Legal Committee, FOGSI
E-mail: dbwalke@hotmail.com

 

 

Supreme Court
Martin F D souza Vs Mohd Ishfaq Jst M Katju/ Jst Lodha 17th Feb 2009

 

Why is it "The case of the month"?

  • It's a landmark case because Justice Katju has stressed the importance of expert medical opinion in medical negligence case at the stage of admission of the case itself. This has caused a change in the way medical negligence cases will be judged hence forth. There will be no court notices issued to doctors or hospital in medical negligence cases unless expert opinion points towards prima facie negligence
  • Justice Katju has revisited "Medical Negligence" in greater details after the Jacob Mathews case.

Details of the case

  • Case of chronic renal failure under dialysis twice weekly was referred to Nanavati hospital in March 1991for renal transplant.
  • Patient visited Nanavati hospital on 24th April 1991 and insisted on seeing Dr Soonavala who was to be out of India till June 1991
  • Revisited Nanavati Hospital on 20/5/91 for fever
    • Advised admission. Pt refused. Broad spectrum AB given
  • Between 20/5/91 & 29/5/91 – Dialysis at Nanavati Hospital 3 times.
    • Every time advised admission for fever but refused
  • On 29/5/91 he had high grade fever 104 F.
    • Got admitted
    • 30/5/91 reports – BUN 180mg/ Cret 13mg/ Hb 4.3/ Widal – Neg/ ESR high/ Urine – bacteria/
    • 3/6/91 - Urine culture- Klebselia (1 lac/ml) >AB sensitivity- sensitive to Amikacin and Methenamine mandelate.
    • 4/6/91 – Blood culture – Staph
    • 5/6/91 – 7/6/91
      • Amikacin injection 500mg Bd
      • Augmentin 375 mg tds given.
      • Methnamine mandalate avoided in view of renal failure.
      • Blood one pint given.
      • Pt kept insisting on immediate kidney transplant, but was advised against for six weeks till infection settled.
    • 8/6/91- AMA discharge.
      • On discharge advised to continue Inj Amikacin
    • 11/6/91 – c/o slight tinnitus.
      • Doctor verbally told to stop amikacin and augmentin and scored it out on the discharge card.
    • From 11/6/91 to 17/6/91 patient continued injection amikacin against advise.
    • On 14/6/91, 18/6/91 and 20/6/91 took dialysis treatment, but never told about any deafness.
    • 25/6/91 – Patient got admitted to another Prince Ali Khan hospital and was treated with AB. No mention of deafness
    • 30/7/91 – Renal transplant at Ali Khan Hospital. Discharged on 13/8/91. then went home to Delhi
    • 7/7/92 – Put up a case in the National forum claiming 1 lacs as his hearing had been affected
    • In the court
      • From patient side
        • Two affidavits- Mohd Ishfaq- himself / his wife
        • Four witnesses. Himself/wife/Dr Ashok Sareen/Dr Vindu Amitabh
        • Opinion of Chief of Nephrology Fairview hospital Clevaland Ohio
          • Had not examined the patient
          • Was not cross examined.
        • Claim – Doctor negligent as he gave amikacin in high dose for 14 days, which was not needed and which lead to hearing impairment.
      • From doctors side
        • Six affidavits. Dr Danbar of hemodialysis unit of Nanavati/ Dr Joshi resident doctor/Mrs Kalekar staff nurse/ Dr Soonavala –urolosurgeon/Dr Rawal –urologist
        • Five witnesses. Dr himself ( Dr M F D souza/ Dr Danbar/ Dr Upadhyaya/Mrs Kalekar/Dr Rawal
        • Reply- Amikacin given as life saving only after obtaining culture report of urine and blood and confirming that other antibiotics will not have response.
      • NCDRC – 9/4/92 -- Awarded 4 lakhs with 12% interest + 3 lakh as compensation + 5000/- cost

National forum did not accept expert opinion of Dr Ghosh from AIIMS

      • Dr Ghosh's opinion
        • Amikacin used as life saving drug. M Mandalate was rightly avoided as patient was in renal failure
        • No negligence.
        • Hearing loss can be due to various other reasons too.
      • NCDRC did not consider Dr Ghosh's opinion awarded 12 lacs

SC Judgment

    • Patient took discharge from hospital against medical advise.
    • After 3 days came with slight tinittus. Doctor asked verbally to stop amikacin and augmentin and scored out the drugs from the discharge card. But Patient continued amikacin for 7 days on his own
    • Amikacin was for saving life which was more important than hearing impairment
    • Ghosh's affidavit should be considered
    • No negligence

SC comments

  • Law is a watch dog, not a blood hound. Doctors, nursing homes/hospitals need not be unduly worried while performing their functions. If duty is done with reasonable care they will not be held negligent even if treatment was not successful. ( Surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end dose of medicine to his patient)
  • Courts and forums are not experts in medical science. They should not substitute their views over those of specialists.
  • Bolam test is the test for fixing medical negligence. Is standard of ordinarily skilled doctor exercising and professing to have that special skill. Doctor need not posses expert skill
  • Frivolous complaints against doctors on rise since they come under CPA.
  • It is true that medical profession to some extent has become commercialized and there are doctors who depart from their Hippocratic Oath for their selfish ends of making money. However the entire medical fraternity is not to be blamed or branded as lacking in integrity or competence just because of some bad apples

SC Guidelines for courts in medical negligence cases

  1. Whenever complaint is received against doctor or hospital in forum or court, then before issuing notice to the doctor or hospital, it should be referred to a competent doctor or committee of doctors specialized in the field to which negligence is alleged, and only if there is prima facie case the notice should be issued
  2. Consumer fora and courts are not medical experts and shouldn't substitute their views over those of experts.
  3. Sometimes despite the best treatment the doctor fails. that doesn't make that doctor/surgeon negligent
  4. The police officials should not arrest or harass doctors unless the arrest is necessary for furthering the investigation or for collecting the data.

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