HM 05.2 – 5.4 Medico-legal Framework

DR Kithsiri Edirisinghe MBBS, MSc, MD ( Medical Administration)

The Topics

5.2 Introduction to Medico-legal Issues in Healthcare Services Setting

• Discussion topic: – Description on types of medico-legal cases; procedures to

handle medico-legal cases; Police, investigations and court deliberations, death certificates; Court procedures in hospital setting, with civil and criminal cases related to hospitals.

• Methodology: – Lecture and discussion

• Readings: – Manual of Management of Hospitals, Ministry of Health Sri

Lanka, 2002

5.3 Medical Negligence and Malpractice • Learning outcomes:

– To give an overall view of medical negligence and malpractice in a healthcare services setting.

• Discussion topic: – Definitions, scope and description of medical negligence and medical

malpractice: areas of medical negligence and medical malpractice; laws related to medical negligence and medical malpractice; steps to curtail medical negligence and medical malpractice at the hospital and service level.

• Readings – Procedure book on Ethics & medical practice, Ceylon Medical council – Medical negligence and the law, K.K.R. Murthi, Indian Journal of

Medical Ethics – Medical Negligence, Sri Lankan cases, LST Review, 2001

5.3 Modular Evaluation • Discussion on the Hospital case studies related

to Legal aspects given cases through word document ( 10 pages)

HM 05.2 – 5.4 Medico-legal Issues in Healthcare Services

Setting

DR Kithsiri Edirisinghe MBBS, MSc, MD ( Medical Administration)

Definitions

• Medicine: The science and art of diagnosing, treating, and preventing disease.

• Law: A system that provides for rights between parties.– Civil Law concerns disputes among private parties

(individuals, businesses, corporations).– Criminal law concerns enforcement of societal

rules against individuals.

Sources of Law

• Constitution• Statutory • Common• Administrative

1. Medical Law

Medical Law

• Sri Lankan Law is a mixture of Roman Dutch & British law • Very limited legislation specific to health- Medical law • There is no written document of doctor patient

relationship in law and it is interpreted under common law• It is part of “Malpractice law” concerned with claiming

injuries to the patient - “Torts”• Torts breech of duty & damages – concerned over wider

area of negligence, accidents & defamation ( insult/offence)

The Challenges in Medical Law

• Medical law based on following:

A. Medical Ethics

B. Medical Professionals and their monopoly

C. Complexity of the medical errors

D. Implications of medical litigations on society

A. Medical Ethics

Health as a right

• Health is not directly given as a right in Sri Lanka

• Indirectly indicated as a right under normal law / civil law as “Fairness”

– Coverage

– Access

– Affordability

– Sustainability

– Efficiency

– Effectiveness

Health as a right

• Under fairness –He/she has a right to;

1. Treated with dignity

2. Information

3. Confidentiality

4. Choose treatment

5. Reference

Medical Ethics

• In medicine ethics is concerned with the code of conduct and actions of health professional.

Code of conduct for health professionals

• Devoid of discrimination

• Provider of service should be competent , dedicated, honest & exhibit ethical behavior

• Good interpersonal relation with other professionals

• Abide by rule of law

• Maintain optimum standard of care

• Abstain from using patients / relations for any favours for the services rendered

• Abstain using official facility for private use

• Be an active member of professional body

• Maintain confidentiality of patients

• Gide the best option for patients treatment

Higher Social expectations from a doctor / Nurse

• Healer

• Councilor

• Teacher

• Social Leader

• Donor

• Diplomat

• Gentlemen

• Lady

• Citizen

• Family Member

Doctor -Patient relationship

1. Privacy

2. Confidentiality

3. Veracity

4. Fidelity

1. Privacy

• Areas where patient does not want to reveal :– History – Examinations

• Complicated process: – Social harm– Social benefit – Use your common sense

2. Confidentiality

• Not reveling information collected from the patient:– Verbally– Examination – Records

• Complicated process• Educate staff• Security of Medical documents

3.Veracity

• Revealing truthful information to the patient:– As a professional

– Cultural /social /Medical • harm

• Benefit

4.Fidelty

• Agreement with the patient – Verbal

– Non verbal

– Unwritten

B. Medical Monopoly

Monopoly

• Cartel• Domination• Control• Medical Monopoly- Medical Professionals

have a higher status in society leading to monopoly.

• Medical Administrators nightmare & challenge

B. Medical Monopoly

• Monopoly – no choice “gods in their own right “ • They directly / indirectly Influence on • Medical information systems• Regulatory bodies - MOH, MC, SLMA • Regulators – MOH, Minister, president , parliament • Legislators / law makers

• Protection of the medical community • Boards of specialty • Medical council • Trade unions -GMOA / Nurses union

C. Complexity of Medical errors

C. Complexity of Medical errors

• Medical professionals deals with humans Vs others dealing with – Papers – lawyers / administrators/ politicians– Numbers – Accountants – Machineries buildings – Engineers – Plants – agriculture – Equipments – operators

C. Complexity of Medical errors

• Medical errors are catastrophic vs. the other professions

• Majority gray areas – not clear black & white • Holding accountability individual Vs. team :

most of the time a team is involved • Complexity of the process of treatment • Variation of the disease profiles • Variation with the client

D. Implications of medical litigations on the society

D. Implications of medical litigations on the society

• Doctors make many clinical assumptions and judgments in diagnosing and treating patients based on :– best practices – experience

• Majority of the cases the assumptions are beneficial to the patient in-terms :– of cost & time – Comfort & safety

D. Implications of medical litigations on the society

• Litigation can remove these assumptions leading to doctors practicing– “defense medicine”; – do “everything by the book”ASS -U - ME

• They will safe guard them selves • Result: More tests, many referrals & specialist

opinions , delay in treatment can lead to morbidly & mortality and great cost & suffering to the patients

Assignment

• Discuss how modern medical administrator could face effectively the threats and the challengers of the medical law and related issues.

• Word document – Min 1000 words

Rules governing healthcare sector, Sri Lanka

Rules governing healthcare sector

1. Civil law / common law 2. Criminal law 3. Medical Ordinance 4. Nursing home act 5. Medical ethics 6. Private health services regulatory act

Medical law

• No direct legislation • Described under torts as doctor -patient

relationship & it covers :– Negligence , accidents & defamation

• 03 important issues on Medical law– Negligence – Consent – Confidentiality

A. Medical Negligence

Negligence - Definitions

• ‘Tort’ is a legal wrong for which damages can be awarded in

court.

• Tort law is primarily “common law,” defined and evolving as

courts decide cases.

• ‘Statute of Limitations’ defines the period in which the lawsuit

must be initiated.

Typical Causes of Negligence

1. Not having required skills

2. Performing skills incorrectly

3. Performing unauthorized skills

Medical Negligence

• This is described under common professional negligence , not specific to health

• 04 elements in negligence 1. Wrongful misconduct /duty of care 2. Fault 3. Causation 4. Patrimonial / Damages

1. Wrongful misconduct /duty of care

Wrongful misconduct

• Act or omission

• Act – doing something

• Omission – not doing something

1. Wrongful misconduct /duty of care

Duty of care • Standards commonly practiced ,accepted by

the responsible body of “Medical men” ( Medical council/ Specialized bodies )

• For investigation, diagnosis and treatment of patients

• Vicarious liability – patient sue the hospital not the doctor ,since it has a “deep pocket “

Standards of Care

• “How a reasonable, prudent, properly trained medical Officer at the same level of training would perform under the same, ‘or similar’ circumstances.”

General Standards

• Provide Medically Correct Treatment Consistent with Scope of Practice

• Ambulance– Ensure Vehicle is Appropriately Stocked &

Supplies – Ensure Equipment is in Good Working Order– Operate Vehicle and Park in a Safe Manner

2. Fault / Breach of duty of care

• Fault – Whether the act was well below the standard or

acted carelessly• Breach of duty care – Accepted practice not followed – Verified by a medical expert in court of law

3. Causation

• 03 main areas• Establishment of a duty of care • Establishment of a breach of duty of care • Establishment of breach of duty of care was

the sole reason for the suffering of the patient - “ but for test “ indicate the direct line of

relationship between duty of care & the breach of duty of care

4. Patrimonial / Damages

• The damages– Financial – Physical – Psychological – Social – Material

• Quantification of the damages

Vicarious Liability

• Occurs when employer held responsible for negligence of employee or someone under employer’s control

B. Consent

Description of consent

• Based on medical ethics • Law interprets on autonomy and beneficence

( self determination)• Modern approach to self determination is the

informed consent. This is based on – Knowledge – Appreciation of risk– General consent - willingness

Types of Consent

• Informed Consent• Expressed Consent• Implied Consent• Special Circumstances – Exception of informed consent id the “therapeutic

privilege” – psychiatric, unconscious – Minors– Patients with Impaired Mental state

Consent to Treat Minors

• The age of majority is 18 or when the individual becomes married.

• Minors can give consent for medical treatment when:– the minor is living apart from parent or guardian and

manages own finances; or– the parent or guardian cannot be contacted or is unwilling

to either grant or withhold care

Refusal of Care

• Mentally competent adult patients have the right to refuse medical treatment

• Mentally competent parents have the right to refuse treatment for their children

• Patient should sign refusal form• Ensure that all actions and the patient's condition are

well documented, particularly L.O.C. and assessment findings. The patient should be encouraged to seek medical care.

C. Confidentiality

• Vital part of treatment • Patient believes and trust doctor • It should maintain with respect

Principles of Confidentiality

• Establishment of Physician-Patient Relationship

• Legal Requirements to Maintain Confidentiality of Information

• Increase in Legal Risks if Information is Misused

Anatomy of a Civil Lawsuit

Anatomy of a Civil Lawsuit

• Suspicious Incident• Investigation• Filing of Lawsuit Within Statute of Limitations• Service of Complaint• Legal Representation Obtained and Answer

Filed

Anatomy of a Civil Lawsuit ….

• Discovery– Interrogatories (written)– Depositions (sworn, in person, and recorded)

• Trial• Appeal• Settlement (Possible at any time)

Determination of Damages

• Compensatory– Special Damages– General Damages

• Punitive

If You’re Involved in a law suit

• Always notify employer and medical director

• Always make sure that complaint is answered

Protection Against Litigation

• Good Patient Care ( Practice Good Patient care practices – policies and protocols)

• Good Rapport with Patient and Family• Comprehensive and Factual Written Reports• Compliance with Standing Orders and Safety

Requirements• Safe Emergency Operations

HM 05.1 Common Medico-Legal procedures in hospitals

Medical Officers Duties

1. Clinical Medico-Legal examinations2. Medico-legal postmortem examinations3. Exhumations4. Visiting Scenes of Crime 5. Recording of Dying Declarations– It is essential to equipped with :

• Necessary trained staff• Instruments • Relevant forms

Seeking help of JMO• Consultant Judicial Medical officer

• If any difficulty arises in carrying out ML examinations:

– due either to complexity of the case

– inexperience of the Medical Officer, I

– any difficulty arises in the interpretation of the findings and/or giving an opinion as

regards the cause of death of any other medico-legal issue

– In the case of a death in the custody of the Police, in a station coming within the

purview of the Medical Institution

• Request such examination, in writing, giving reasons for his/her inability to carry out such

examination and advise

• Refer the case to the nearest Judicial Medical Officer.

1. MEDICO-LEGAL EXAMINATIONS (CLINICAL)

• Need to give information to the Officer in-charge of the nearest Police Station, regarding admission or treatment of patients of :– intentional violence– sexual assaults– accidents– poisoning – any other situation where there is reasonable ground to

suspect that a crime had been committed.

Circumstances of Medico- legal Clinical examinations

• Request of a Police Officer:-– Medico- Legal Examination Forms (Police-20) are issued to injured

persons by the Police Department in cases of intentional violence, sexual assault, road traffic accidents, industrial accidents, poisoning, drunkenness, consumption of drugs, insanity etc.

– After the examination, the Medical Officer must hand over to the Police Department, his report in the police copy of the Medico Legal Examination Form as soon as possible.

• Orders of Judges, Magistrates and other Judicial Officers:- • Reports on these examinations must be sent in the Medico-

Legal Report Form (H 1135).

CLINICAL MEDICO LEGAL EXAMINATION-STEPS

1. History from the patient, as to the circumstances that led to the present condition.

2. Physical examination as regards Nature, Size, Shape, Disposition and Site of Injury.

3. General Physical Examination.

4. Conducting Relevant Investigations.

5. Referral of Patients to Specialists, as necessary

2. Ordering Inquest

• The Medical Officers must order inquests through the Officer-in-Charge of the

nearest Police Station into the following deaths:-

– Where the cause of death is not known.

– Death is unnatural (Homicide/ Accident/ Suicide).

– Death related to Medical and Surgical Procedures or when there are allegations of negligence.

– Deaths under suspicious circumstances.

– Death of a prisoner.

– Death following Tetanus & Rabies.

– Death on admission

Cause of death may be entered in the Bed Head Ticket for consideration of the Judicial

authority conducting the inquest.

3.POSTMORTEM EXAMINATIONS

• Medico-Legal • Pathological

3. MEDICO-LEGAL POSTMORTEM EXAMINATIONS

• Examinations are ordered by a Judge/Magistrate or an Inquirer- into- Sudden Deaths.

• Before performing the postmortem examination, the Medical Officer should see that the body is identified by two persons acquainted with the deceased.

• The external examination• The internal examination

– must include, opening into all body cavities and dissecting all organs therein. – All dissected internal organs must be put back into the body cavities and sewn up before

the body is handed over to the relatives. – If the Medical Officer has removed any organs for further studies, he should make a

note of such organs removed in the postmortem examination report.

PM examination ….• Postmortem examinations where the cause of death is not

established at the end of the examination, it is mandatory to take specimens from all vital organs for Histology (Preserved in 10% Formalin solution) and also to remove specimens for Toxicological analysis.

• Soon after the completion of the postmortem examination, the Cause of Death and other relevant opinions must be communicated to the Judicial Authority.

• The Medical Officer must enter all the postmortem examination findings in the Postmortem Examination Report Form (H42).

4. Pathological postmortem

• The cause of death is natural and is known to the Medical Officer

requesting the Examination, and entered in the bed head ticket.

• An inquest has not been ordered into the death.

• The Medical officer certifying death must fill the declaration if death

form.

• The consent of a close relative obtained in writing on the bed head ticket.

• The approval of the Head of the Institution obtained.

• All autopsy findings entered on the bed head ticket of the deceased.

Essentials in postmortem examinations

• Medico-Legal Postmortem Examinations should be carried out in Mortuaries with basic facilities :– postmortem table– Necessary equipments & chemicals – running water – adequate light. – Laborer

• Such examinations should not be carried out after sunset in artificial light.

• Medical Officer is of the opinion that the delay in keeping the body overnight will adversely affect the Medico-Legal investigation, then he may carry out such investigation provided there is adequate artificial light.

5. EXHUMATIONS

• Acting under Section 373 (2) of the Criminal Procedure Code, a Judicial Authority may order a Government Medical Officer to exhume a body and carry out postmortem examination.

• An inexperienced Medical Officer may not be competent to carry out a postmortem examination on an exhumed body.

• In such situations, a Medical Officer may carry out only the exhumation of the body and advise the Judicial Authority to refer the postmortem examination to a Judicial Medical officer.

6. VISITS TO SCENES OF CRIME

• All Medical Officers must visit scenes of crime at the earliest opportunity if such a request is made by a Police Officer or a Judicial Authority.

• Failure or delay in visiting a scene of crime can result in loss of Scientific Data vital for the investigation.

7. DYING DECLARATIONS• case of serious injury following intentional violence where, in the opinion

of the Medical officer, the patient may die before his statement is recorded by a Police Officer

• then the Medical Officer in-charge of the Institution must inform the Magistrate of the area through the Officer-in-charge of the nearest Police Station to record the dying declaration of the patient.

• If however, death is imminent then the Medical Officer-in-charge of the Institution must take down in writing the statement made by the person seriously injured with particular reference to the name of assailant, nature of weapon used and place, date and the time of sustaining such injuries.

4. Pathological postmortem

• The cause of death is natural and is known to the Medical Officer

requesting the Examination, and entered in the bed head ticket.

• An inquest has not been ordered into the death.

• The Medical officer certifying death must fill the declaration if death

form.

• The consent of a close relative obtained in writing on the bed head ticket.

• The approval of the Head of the Institution obtained.

• All autopsy findings entered on the bed head ticket of the deceased.

4. Reports & fees– All notes of examinations must be made clearly and legibly, in the prescribed

forms.– All reports sent to Courts or any other Judicial Authority must be in duplicate.– A copy must be kept by the Medical Officer.– Notes and reports of examinations made by the Medical Officer, is his/her

personal property and must be kept under lock and key.– The Medical Officer should take it with him/her when he/she is transferred to

another Institution. – All notes and reports must be preserved for at least 25 years.– Bed Head Tickets, X-rays and other reports pertaining to Medico-Legal cases

must be preserved in the Institution for a period of at least 25years.

4. Reports & fees– On receipt of the notice or summons from a Judicial Authority to forward a

report to Court or when a request for a report is made by the Attorney General or the Police Department, the Medical Officer must make such report available without delay.

– Private Medical Reports (MLR & PMR) can be issued only at the written request of the affected person or his next of kin when such person is severely disabled or dead. A private Medical Report cannot be issued to a third party.

– Separate Registers must be maintained for• Clinical Medico-Legal Examination• Postmortem Examinations

– Fees are payable by the respective High Courts for submitting Medico-Legal Reports to Courts (H-1135) after the examination of a patient and for conducting and submitting a report in H-42 after postmortem examinations, under section 373 (1) & the Criminal Procedure Code.

4. Reports & fees– Separate Registers must be maintained for• Clinical Medico-Legal Examination• Postmortem Examinations

– Fees are payable by the respective High Courts for • submitting Medico-Legal Reports to Courts (H-1135) • After the examination of a patient and for conducting

and submitting a report in H-42 after postmortem examinations, under section 373 (1) & the Criminal Procedure Code.

Thank You !