Doctor patient contract

Doctor-patient relationship, Doctor-patient contract, Law of tort, Contract in tort, Damage / compensation by Doctor to patient, Implied contract, Expressed contract, Continue to treat, Reasonable care, Reasonable skill, Not to undertake any procedure beyond his skill, Professional medical secrets (during patient care).

1. Dr Gaurav Aggarwal

MBBS, MD, DNB (Forensic Medicine)

Medicolegal Consultant &
Ex-Professor

[phone]
[email protected]
www.divineassociates.net

2. Contract

The understanding of the concept of
contract law is necessary to
understand the concept of consent.

Contract is a legal enitity, under “The
Indian Contract Act, 1872”.

Consent means voluntary agreement,
compliance or permission.

3. Doctor - Patient Contract

Contract is defined as an agreement
between two or more persons which creates
an Obligation to do or not to do a particular
thing. (The Indian Contract Act, 1872)

Implied Expressed

4. Doctor - Patient Contract

An implied contract is one inferred from
conduct of parties and arises where one
person renders services under
circumstances indicating that he expects to
be paid thereof, and the other person
knowing such circumstances, avails himself
of benefit of those services.

5. Doctor - Patient Contract

An expressed contract is an actual
agreement of the parties, the terms of which
are openly uttered or declared at the time of
making it, being stated in distinct and explicit
language, either orally (oral agreement) or in
writing (written agreement).

6. Doctor - Patient Contract

+ The doctor-patient contract is almost
always of the implied type, except where a
written informed consent is obtained.

+ While a doctor cannot be forced to treat
any person, he has certain responsibilities
for those whom he accepts as patients. It is
an implied contract.

7. Doctor - Patient Contract

Implied contract is not established when :

(i) the doctor renders first-aid in an
emergency

(ii) he makes a pre-employment medical
examination for a prospective employer

(111) he performs an examination for life
insurance purpose

8. Doctor - Patient Contract

Implied contract is not established when :

(iv) he is appointed by the trial court to
examine the accused for any reason

(v) when he makes an examination at the
request of a lawyer for suit purposes.

9. Doctor-
patient
contract
requires
that the
doctor

must:

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10. (i) Continue to Treat

Responsibility towards a patient begins the
moment a doctor agrees to examine the case. He
must not, therefore, abandon his patient except
under the following circumstances :-

1) The patient has recovered from the illness, for
which treatment was initiated.

2) The patient / attendant does not pay the
doctor’ s fees (in case of a private practitioner).

3) The patient / attendant consults another doctor
(of any branch of medicine) without the knowledge
of the first attending doctor.

11. (i) Continue to Treat

4) The patient / attendants do not co-operate
and follow the doctor’ s instructions.

5) The patient is under some other
responsible care, e.g., the patient, after
admission in a hospital, comes under care of
senior doctors / unit head.

6) The doctor has given due notice (orally or
written) for discontinuing treatment.

7) The doctor is convinced that the illness is
a fictious one.

12. (ii) Reasonable Care

A doctor must use clean and proper
instruments, and provide his patients with
proper and suitable medicines if he
dispenses them himself.

lf not, he should write the prescriptions
legibly, using standard abbreviations and
mention instructions for the pharmacist in full.
He should give full directions to his patients
as regards administration of drugs and other
measures, preferably in local written
language.

13. (ii) Reasonable Care

He must suggest / insist on consultation with a
specialist in the following circumstances :

1) When the case is complicated

2) When the question arises about performing an
operation which may be dangerous to life or
requiring amputation

3) Operating on a case in which there has been a
criminal assault

4) Performing an operation which may affect the
intellectual or reproductive functions of a patient

14. (ii) Reasonable Care

He must suggest / insist on consultation with
a specialist in the following circumstances :

5) In cases where there is suspicion of
poisoning or other criminal act

6) When desired by the patient / attendants
7) When it appears that the quality of
medical service is required to be enhanced
8) When there is no one from whom
informed consent can be obtained

15. (iii) Reasonable Skill

The degree of skill a doctor undertakes is the
average degree of skill possessed by his
professional brethren of the same standing as
himself. The best form of treatment may differ
when different choices are available. There is
an implied contract between the doctor and the
patient when the patient is told in effect :
"Medicine is not an exact science. | shall use
my experience and best judgement and you
take the risk that | may be wrong. | guarantee
nothing."

16. (iv) Not to undertake any procedure
beyond his skill

This depends upon his qualifications, special
training and experience. The doctor must
always ensure that he is reasonably skilled
before undertaking any special procedure /
treating a complicated case. To quote an
example, a doctor who is not sufficiently
trained or qualified should not administer
anaesthesia.

17. (v) Professional Secrets

A professional secret is one which a doctor
comes to learn in confidence from his
patients, on examination, investigations or
which is noticed in the ordinary privacies of
domestic life.

A doctor is under a moral and legal
Obligation not to divulge any such secret
except under certain circumstances.

This is known as privileged
communication.

18. (v) Professional Secrets

Privileged communication is defined as a
communication made by a doctor to a proper
authority who has corresponding legal, social and
moral duties to protect the public.

lt must be bonafide and without malice, e.g. as a
witness in a court of law; warning partners or
spouses of HIV /AIDS patients; informing public
health authorities of food poisoning from a hotel
etc; assisting apprehension of a person who has
committed a serious crime ; informing law
enforcers about medico-legal cases, etc.

19. Thank you !