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
• Diplomat
• Councilor
• Gentlemen
• Teacher
• Lady
• Social Leader
• Citizen
• Donor
• 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.
2.
3.
4.
5.
6.
Civil law / common law
Criminal law
Medical Ordinance
Nursing home act
Medical ethics
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.
2.
3.
4.
Wrongful misconduct /duty of care
Fault
Causation
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.
2.
3.
4.
5.
Clinical Medico-Legal examinations
Medico-legal postmortem examinations
Exhumations
Visiting Scenes of Crime
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 MedicoLegal 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- intoSudden 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 MedicoLegal 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 !