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Medical Jurisprudence in Community dentistry (Context of Nepal)

1. School Of Dental Sciences, CMCTH (Department of community dentistry) Medical Jurisprudence Guided by: Dr Naresh Joshi Presented by: Ramkrishna Kushwaha, Mahesh Khatiwada Roll no. 23,15 BDS 9 th Batch

2. Contents Introduction Doctor-patient contract Consent Professional negligence Consumer protection act

3. Do’s and don’t ’s for health professionals Preventive measures Conclusion

4. Medical Jurisprudence (Legal medicine) Juris=law Prudentia=knowledge Inrelation to practice of medicine Inrelation with legal consequences. It is the study and theory of law Knowledge of law

5. Introduction CHARAKA’ OATH-1000 B. C “Thou shalt be free from envy , not cause another’s death, and pray for the welfare of all creatures. Day and night thou shalt not desert a patient, nor commit adultery , be modest in thy attire and appearance, not to be drunkard or sinful, while entering a patients house , be accompanied by a person known to the patient. The peculiar customs of the patients household shall not be made public . ”

6. 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 . A dentist may refuse to treat a patient for any reason except race, creed, color, national origin or based upon a person’s disability.

7. Contract may be

8. EXPRESS OR IMPLIED CONTRACT Express contract – written or oral contract Implied contract – enacted by the action by the parties ,doesn't require contract to be written or oral Ex: express contract Your parent signs a field trip permission slip Ex:Implied contract You prepay the attendant for gas (without saying a word) pump your gas and leave

9. 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 therefore , and the other person knowing such circumstances, avails himself of the benefit of those services.

10. Implied warranties owed by the doctor Use reasonable care and methods in the provision of services as measured against acceptable standards set by other practitioners with similar training in a similar community. Be properly licensed and registered and meet all other legal requirements to engage in the practice of dentistry. Employ competent personnel and provide for their proper supervision. Maintain a level of knowledge in keeping with current advances in the profession.

11. Not use experimental procedures. Obtain informed consent from the patient before instituting an examination or treatment. Not abandon the patient. Ensure that care is available in emergency situations. Charge a reasonable fee for services based on community standards. Keep the patient informed of her or his progress. Not undertake any procedure for which the practitioners is not qualified.

12. Implied duties owed by the patient He must disclose all information that may be necessary for proper diagnosis and treatment. He must co-operate with the doctor for any relevant investigations required to diagnose and treat him. He must carry out all the instructions as regards drugs , food, rest, exercise or any relevant/necessary aspect. He should notify the dentist of a change in health status. In the case of private medical practioner he must compensate the doctor in terms of money.

13. An express 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)

14. Continue to treat such a person With reasonable care Reasonable skill Not undertake any procedure/treatment beyond his skill Must not divulge professional secrets

15. CONSENT The term consent is defined as when two or more persons agree upon the same thing in the same sense they are said to be consent. Voluntary agreement, compliance or permission.

16. Who can give consent Consent given by a person above age of eighteen . When the consent is given without undue influence. When consent is given by a person who is mentally sound.

17. When consent is not valid When the children below the age of eighteen. When consent is given under undue influence. When consent is given by a person which mentally unsound. When the consent is given under mistake of fact or fear or threat of any kind of injury.

18. Types of consent

19. Implied consent This is the most common variety of consent. The fact that a patient comes to a doctor for an ailment implies that he is agreeable to medical examination in the general sense

20. Express consent Anything other than implied consent is express consent. This may be either oral or written. The example of express consent are notably withdrawal of blood, radiology, C. T scan etc.

21. Express written consent is to be obtained for all major diagnostic procedures, general anesthesia and for surgical operations.

22. Informed consent The concept of informed consent has come to the fore in recent years. 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 Alternative methods of treatment.

23. Proxy 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.

24. Situations where consent may not be obtained Fig: Medical emergencies Fig: Immigrants

25. Fig: Members of armed forces Fig: New admission to prison

26. Fig: Court order for psychiatric examination Fig:Handlers of foodman

27. Fig: Handlers of dairyman Fig:person suffering from notifiabledisease (HIV /AIDS)

28. Situations requiring extra caution Doctors should keep in mind certain high –risk situations, which are common cause for medical negligence actions. Retention of objects in operations site Accident and emergency department Amputation of wrong limb

29. Retention of objects Emergency department Amputation of wrong leg

30. Professional negligence (Malpractice, Malpraxis) Professional negligence is defined as the breach of duty caused by the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do.

31. Medical negligence Medical negligence or malpractice is defined as lack of reasonable care and skill or willful negligence on the part of a doctor in the treatment of a patient whereby the health or life of a patient is endangered.

32. Types of medical negligence Civil negligence Criminal negligence Corporate negligence (Example: faulty equipment , lack of supervision, inadequate staffing) Contributory negligence

33. Common Medical Negligence: 1.Omitting the necessary treatment Insufficient diagnostics Delayed reaction to postoperative complications Delayed admission to hospital and to ICU

34. 2.Complications in/or after surgery Intraoperative complication Exitus in tabula Complications concerning endoscopic complications Postoperative complications (bleeding, suture insufficiency, peritonitis)

35. 3.Wrong treatment Transfusion reaction (Incompatible blood transfusion) Telephone diagnostics (Therapeutic recommendations by telephone without visiting the patient) Further wrong treatment (Retained instruments)

36. 4. Mistake in care Insufficient prophylaxis of decubital ulcer Insufficient thrombosis prophylaxis Wrong positioning during operation

37. 5.Adverse drug event, medication errors Wrong drug Wrong dose Wrong application/administration Wrong frequency Disregarding drug allergy

38. Criminal negligence Here the negligence is so great as to go beyond the matter of mere compensation. Not only has doctor made wrong diagnosis and treatment, but also that he has shown such gross ignorance, gross carelessness or gross neglect for the life and safety of the patient that a criminal charge is brought against him.

39. Some examples of criminal negligence are Injecting anesthetic in fatal dosage or in wrong tissues. Amputation of wrong finger, operation on wrong limb, removal of wrong organ/tooth or error in ligation of ducts. Operations on wrong patient. Leaving instrument . Leaving tourniquet too long. Transfusing wrong blood. Applying too tight plaster or splints Performing a criminal abortion

40. Difference between civil negligence and criminal negligence Civil negligence No specific and clear violation of law Simple absence of care and skill It is compared to a generally accepted simple standard of professional conduct Repairable damage to the patient Criminal negligence Must have specifically violated a particular criminal law in question Gross negligence, inattention or lack of competency Not compared to a single test Irreparable damage to the patient

41. Laws related to medical negligence in Nepal National criminal code 2074(2017),Chapter 19: Treatment offenses; section 230,231,232 and 233. The consumer protection act 2075 NMC Act and NMC rules 2024

42. Section230:A person who has not been licensed should not treat: Subsection (1):Who has been licensed by a competent authority according to law, one should not treat , recommend and prescribe medication Subsection (2):No matter what is stated in subsection 1 ,long term experience holder, with information about treatment, taking proper care and without affecting human organ Subsection ( 3):A person who commits or causes to be committed a crime according to sub section 1 shall be imprisoned for upto 3 years and fined upto 30000 rupees

43. Section 231: Don’t treat with ill intention(बदनियतचिताई) Subsection (1): Treatment with an intent to kill or cause grievous hurt to someone, providing another treatment in place of required one or knowingly administering/prescribing of medicine or operating to kill or cause grievous hurt Subsection (2) : The person who commits or make other to commit or make other to commit the offence according to the following Like killing someone for the loss of life(i. e punished with lifetime imprisonment) Like causing grievous hurt for injuries defined as grievous hurt(i. e punished with imprisonment upto 10 years and fine up to 10000 rupees.

44. Section 232:Don’t treat with recklessness(लापरबाही)or negligence Subsection (1): A person, eligible to provide treatment in accordance with law, should not treat, administer/prescribe medicine, or operate with recklessness Subsection (2): If any person dies or suffers grievous hurt due to act pursuant to subsection 1 ,he/she shall be imprisoned for 5years and fined up to 50000 rupees for recklessness ( लापरबाही) being the cause and imprisoned upto 3years and fined up to 30000 rupees for medical negligence (हेल्थचकरयाई) being the cause

45. Section 233:Don’t test in human body without consent: Subsection( 1):Don’t proceed further without informing and taking consent with the person concerned and the father , mother, or guardian for the child or person who is not mentally sound Subsection (2):Even the drug in the human body must be considered carefully Subsection (3):No one should take physical examination or changes organs for improper financial gain Subsection (4):Against subsection 1,2,3 shall be imprisoned for up to 3 years and fined up to 30000 rupees. Subsection (5):For the death or grievous hurt of someone , according to against subsection 1,2,3 shall be punished as if he had been killed and causing grievous hurt (punished with imprisonment up to 10 years and fine up to 10000rupees) he had committed

46. Consumer Protection Act (COPRA) 2075 Rights to the consumer Rights to easy access to goods or services, Right to choose quality goods or services at the fair competitive price, Rights to be informed of the price quantity, purity, quality of the goods or services Right to get appropriate legal action taken against the unfair trade and business activity Right to get consumer education

47. Liability of seller To sell the goods to the consumer without descrimination To keep price list of goods so that it is clearly seen and understood by general people To give the bill or receipt on selling the goods To fulfill other liability as prescribed

48. Do’s for doctors Mention your qualifications/trainings/designation on prescription. Qualifications mean recognized degrees/diplomas. Mention of scholarship/membership/awards which are not qualifications should be avoided Always mention date and timing of the consultation

49. Mention age and sex of the patient. In a pediatric prescription, weight of the patient must also be mentioned. Listen attentively. Look carefully. Ask questions intelligently. If, after completing the examination, the patient/attendant feels that something has been left out or wants something to be examined , oblige him.

50. Always face the patient. Do not stare . Some patients tolerate very little eye contact. Learn to observe out of the corner of your eyes. In case you have been distracted/inattentive during the history taking, ask the patient/attendant to start all over again. He will never mind it . As far as possible, consultations should not be interrupted for non-urgent calls.

51. Ask the patient to come back for review the next day , in case you have examined him hurriedly or if you are not sure about the diagnosis/treatment. Mention “diagnosis under review ” until the diagnosis finally settled. Fig: Doctor reviewing next da y

52. In complicated cases, record precisely the history of illness and substantial physical findings about the patient on your prescription. If the patient/attendant are erring on any count(history not reliable, refusing investigations, refusing admission)make a note of it or seek written refusal preferably in local language with proper witness. Mention the condition of the patient in specific/objective terms. Avoid vague /non-specific terminology.

53. Record history of drug allergy. Write names of drug clearly. Use correct dosages and mention clearly method and interval of administration. Mention additional precautions, e.g., food , rest, avoidance of certain drugs, allergens, alcohol, smoking, etc., If indicated.

54. Mention where the patient should contact in case of your non-availability/emergency. Whenever referring a patient, provide him with a referring note . In case of emergency/serious illness , ring up the concerned doctor in the patients presence. Show your concern.

55. Routinely advise X-rays in injury /diseases of bones and joints Always rule out pregnancy before subjecting the uterus to X-ray. Always read reports carefully and interpret the results of tests /X-rays properly and make a note of it. Always seek proper legal and medical advice before filling reply to the complaint referred to you from a consumer court.

56. Update your knowledge and skill from time to time . Update the facilities and equipment according to prevailing current standards in your area. Preferably employ qualified assistants. Always obtain a legally valid consent before undertaking surgical /diagnostic procedure. Learn the difference between informed persuasion and informed consent. The first is legally wrong , through at times it may be medically correct.

57. While administering an injection/drugs always check: Name of the drug Expiry date Reconfirm the route of administration If it is to be diluted , check the dilution factor Rate of administration That a disposable syringe and needle are used In case the patient is agitated/not co-operating Confirm that it has been kept at the required temperature

58. Don’t for doctors Don’t prescribe without examining the patient, even if he is a close friend or relative Never examine a female patient without presence of female nurse /attendant Fig: Doctor examining female patient in presence of attendant

59. Don’t insist on the patient to tell the history of illness or be examined in presence of others. He has right to privacy and confidentiality. Do not permit considerations of religion, nationality, race, party, politics or social standing to intervene between you and your patient.

60. Don’t smoke while examining the patient Don’t examine a patient when you are sick, exhausted, or under influence of alcohol or any intoxicated substance. Don’t be overconfident. Don’t look overconfident. Don’t prescribe a drug or indulge in a procedure of you cannot justify its indication, or a drugs which is banned Fig: Don’t smoke while examining patient

61. Don’t write instructions on a separate slip. Don’t allow substitution Don’t adopt experimental method in treatment . If there is some rationale do it only after informed consent. Don’t do anything beyond your level of competence. Competence is defined by your qualification, training and experience.

62. When you are not sure what and why to do , consult your senior /specialist/colleague. Don’t refuse if the patient/attendants want to leave against medical advice. It is their right. Document this properly. Don’t withhold information, however harsh and difficult.

63. Don’t give untrue , misleading or improper reports , documents, etc. Don’t refuse the patients right to examine and receive an explanation about your bill regardless of the source of payment; whether or not it is reimbursed by the government or by his employer/insurance company.

64. Preventive measures-How to avoid litigation True and NMC approved qualifications Communication/Interpersonal behavior Academic and technical upgradation Medical /dental ethics and laws Prevention by professional indemnity(Insurance cover)

65. True and NMC approved qualifications Training and experience of recognized centers are the primary safeguard against litigation. The prescription heads, signboards and advertisement should mention the actual facilities available. Refrain from claims of guarantee of results.

66. Communication/Interpersonal behavior This is the key to doctor-patient relationship Increasing crowds of patients and improper communication to the patient about diagnostics and treatment procedures, complications and claims of guaranteed success are main reasons for patient dissatisfaction. So it is desirable for us to give our behavior a human face with a sympathetic attitude.

67. Academic and technical upgradation To keep pace with fast changing scenario of technical advancement, one should regularly attend continuing education programs, workshops and other academic sessions and should also organize workshops to upgrades the auxiliaries

68. Medical /dental ethics and laws A through knowledge of ethics and laws is essential for all medical professionals. This helps in improving/correcting the practice standards Feedback form patients about the setup , staff, charges etc, will give idea about further improvement/improvisation.

69. Prevention by professional indemnity Professional indemnity insurance is a tool, which not only meets the claim of compensation awarded against doctor/hospital but also gives a sense of mental security that even if same negligence is proved the insurance company will take care of it. The insurance company not only pay the compensation to the other party but also arranges for legal help from advocates.

70. Conclusion After the consumer protection act, 2075,came into effect, a number of patients have filed cases against doctors. Although , no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the true nature of a disease, the doctor /dental surgeon can be held liable for negligence only if one can prove that she/he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care

71. References Textbook of Public Health Dentistry – 7 th Edition(Soben Peter) Simpson’s Forensic medicine -12 th Edition The Essentials of Forensic Medicine and Toxicology-13 th Edition (K. S Narayan Reddy) Wiley’s Encyclopedia of Forensics Science- A. Jamieson Nepal consumer act 2075 Nepal criminal court 2074 National penal code 2074