Dr.

Palash Bose
MBBS, DFM,MCPS
Associate Professor
Dept of Forensic Medicine
 Types of physician-patient relationship
Relationship between physician and patient is based on trust
and respect to each other. The physician will give his full
effort to cure the patient without any delay with empathy by
taking consent.
Similarly the patient will have to follow the instruction as
given by the doctor.
Therapeutic relationship
 Formal relationship
THERAPEUTIC
RELATIONSHIP
 A doctor is free to accept or refuse to treat a patient
subject to constraint of his professional obligations
When/where a doctor may refuse to treat a patient:

 Beyond his practicing hours

 Not belonging to his specialty
 Illness beyond the competence & qualifications of the
doctor or beyond the facilities available in his set up or
institution
 Patient refuses to give consent
 Doctor or other family members are ill
 Doctor having important social function
 Doctor consumed alcohol
 Patient has been defaulting payment
 Non-cooperative or violent or abusive patient or his
relatives
 Malingering
 Patient demanding specific drugs like
amphetamine or steroid
 An unaccompanied minor or a female patient
 At night on security ground

Formal relationship
It belongs to the situations where the 3rd party has
referred the patient for impartial medical
examination like pre-employment, insurance, yearly
check-up, cases of rape, victims of crimes, mental
illness etc.

In these circumstances the doctor should send the

reports considering the directives of the party
demanding such examination, not to the patient
Demand.
CONSENT
It may be defined as free, valid, voluntary
agreement, compliance or permission to do an
act.

Types:
 Implied consent
 Express consent
a)Oral
b) Written
 Implied Consent :

 The consent which is not written or expressed

but legally valid and provided by the behavior
or co-operation by the patient

 Commonly observed in medical practice

 It’s a consent for medical examination in a
general sense which is not more complex than
inspection, palpation, percussion and
auscultation.
 Express consent :

Consent which are stated in clear and easy to understand

language is called express consent.

Types: Oral and Written consent

Oral consent:
 This consent is valid in case of relatively minor
examinations/therapeutic procedures with the
presence of a disinterested third party.
 Oral consent, where properly witnessed, is as valid as
written consent
Written consent :

It is obtained for all major diagnostic

procedure/surgical operation.
Following should be noted:
 Should refer to one specific procedure only

 Should be obtained on a special form provided

by the hospital
 Should be witnessed by a third party with a
proper signature
 Doctor should explain the nature of therapeutic/
surgical procedure
Informed written
consent
Informed written consent is a consent, which
includes an understanding by the patient of:
 The nature of the patients condition
 Proposed treatment or procedure

 Alternative procedure

 Risks and benefits of both procedures

 Potential risks of not receiving treatment

 Relative chance of success or failure

 And finally knowing all the facts the patient has the

right to accept or reject the procedure

Example: Operation procedure, rape victim examination etc
When consent is invalid?

 If the consent is obtained by misinterpretation ,

fear, fraud or intoxication or impersonation
 If the act is unlawful like criminal abortion
 If the consent is given by minor or mentally ill
 If it is not an informed consent
Criteria of a person giving consent :

 Above the age of 12 years

 Mentally sound
 Not under any fear or threat
 Not under false conception
 Not under intoxication
 Full disclosure ( Informed consent)
:
This is essential in medical practice, when
Diagnosis and treatment are beyond the
routine
methods, wherein risks are involved.

 Doctor should explain all relevant details

to the patient.
Precaution during consent :
 These includes the formalities on how a
doctor should act in obtaining the
consent-

 Explain the object of it

 Inform the patient that he/she has the
right to refuse
 Explain the complete procedure of
treatment
Consent and exceptions
 Doctrine of locoparentis

 Doctrine of emergency

 Doctrine of therapeutic privilege

Doctrine of locoparentis
In emergency situations involving children, when
their parents or guardian are not available,
according to this doctrine consent can be
obtained
from the persons accompanying.

Example:
A school teacher/Headmaster/Hostel Super
can give consent for operation if needed
While the child is away from parents
Consent and age
 12 years: Minimum age for giving valid
consent for medical examination
 18 years: can give valid consent for

performing an operation which is done in

good faith.
 16 years: Age of female for sexual
intercourse
 18 years: Marriageable age for female

 21years: Marriageable age for male

NEGLIGENCE

 Means doing something that is not

supposed to do or failing to do
something that is supposed to do
PROFESSIONAL NEGLIGENCE, MALPRAXIS
OR MALPRACTICE
It may be defined as absence of
reasonable care & skill or willful
negligence of a medical practitioner in
course of treatment of a patient resulting
in bodily injury or death of the patient
Types of Professional
Negligence
 Civil Negligence
 Criminal Negligence
Components/Conditions/
Establishment of Negligence
 Liability of negligence arises if the following 4
conditions are satisfied.
 Duty: Existence of a duty of care by the doctor
 Derelection:Failure to maintain applicable
standard of care and skill
 Direct Causation: Failure to exercise a duty of
care must lead to damage
 Damage: The damage must be reasonable
foreseeable
Civil Malpraxis (Civil negligence)

 Any absence of proper skill or care

that causes the patient’s death,
diminishes his chance of recovery,
prolongs his illness or increases his
sufferings
 Question of Civil Negligence

 It may arise on part of

 A patient/patient’s relative or
 By a doctor

By a patient/patient’s relative
When a patient or in the event of his death, his
relatives, sue a doctor in a civil court for
compensation for the injury or death of the
patient due to negligence of the doctor
By a doctor

 When doctor brings a civil suit for

realization of his professional fees
from the patient or his relatives who
refuses to pay the same on the
ground of negligence
EXAMPLES OF CIVIL NEGLIGENCE

 Failure to obtain informed consent

 Failure to inform the patient of the risks of
refusal of treatment
 Failure to immunize or perform sensitivity
test
 Not ordering X-ray when fracture is
anticipated
 Failure to attend the patient at time or give
substitute during his absence
 Failure to instruct the patient to warn about
the side effects
 Failure to diagnose due to lack of skill or care
 Failure to give proper postoperative care
 Giving overdose of medicine or giving
poisonous medicine carelessly
 Prematurely discharging the patient.
 Wrong diagnosis of an X- ray

The burden of proving negligence lies with

the
patient.
Criminal Mal-praxis or Criminal
Negligence
 It is a from of negligence in which the
physician exhibits gross lack of competence,
gross inattention, criminal indifference to the
patients safety, or gross negligence in the
selection & application of remedies
 To be criminal the negligence must be willful,
wanton, gross or culpable.
 The question of criminal negligence arises-
- When a doctor shows gross absence of skill &
care during treatment resulting injury to or
death of the pt.
-When a doctor performs an illegal act
- When an assaulted person dies the party may
claim that the death was due to negligence
EXAMPLES OF CRIMINAL
NEGLIGENCE
 Amputation of wrong finger, operation on
wrong limb or wrong pt. or removal of wrong
organ
 Leaving the instruments or sponges in
abdomen or any other part of the body
 Leaving tourniquets too long
 Gross carelessness during treatment,
anesthesia. Operation & postoperative period
 Giving wrong or infected blood
 Gangrene after too tight plaster, or paralysis
after splints
 Dressing with corrosive agents
 Performing criminal abortion or criminal
operation
 Mismanagement of delivery under the
influence of alcohol or drugs
 Immunization/prophylactic antibiotic cover/
sensitivity test where required is to be done
 No procedure should be undertaken beyond
one’s skill/ or without consent
 Instruments should be properly sterilized, safe
& in proper condition
 Difference between Civil and
Criminal Negligence
Traits Civil negligence Criminal Negligence
Offences No specific & clear violation Must have specially violated
of law need to be proved. criminal law.
Negligence Simple absence of care & skill Negligence. Inattention or lack
of competency
Conduct of Compared to a generally Not compared to a single test.
physician accepted standard of
professional conduct.
Consent for act Good defense; can’t recover Not a defense; cam be
damages. prosecuted
Trial by Civil court Criminal court.
evidence Strong evidence is sufficient Guilt should be proved beyond
reasonable doubt.
Punishment Liable to pay damages. Imprisonment.
Examples of Negligence
Precautions against negligence
 Should keep oneself about the latest technical
advances
 Should use standard procedure of treatment
 Take informed consent of the patient
 The diagnosis where possible should be
confirmed by laboratory test including biopsy
 X-ray should be routinely done in case of injury
to bone or joints where diagnosis is doubtful
 Seek Consultation with specialist if needed
 I/M , I/V injection should be verified
 Immunization/prophylactic antibiotic cover/
sensitivity test where required is to be done
 No procedure should be undertaken beyond
one’s skill
 No experimental method should be adopted
without the consent of the patient
 Instruments should be properly sterilized, safe
& in proper condition
 Transfer the patient if facilities are not
available
 Don’t criticize or condemn the professional
ability of another doctor specially in the
presence of the patient
 Don’t make a statement admitting your fault
 Never guarantee a cure
 Don’t exaggerate nor minimise the gravity of
the patient’s condition.
 Avoid from overconfident prognoses and
promising too much to patient
Incidence of Negligence
 আড়াইহাজাের ভল িচিকৎসায় সূিতর মৃত র অিভেযাগ তািরখ:
১৭-১০-২০১২ The daily Prothom Alo
 অিভেযাগ
গত রাববার িবেকেল িশউিলর সব বদনা উঠেল তঁ ােক উপেজলা সদের অবি ত খাজা জনােরল হাসপাতােল
ভিত করা হয়। পরিদন িবেকেল হাসপাতােলর দািয় রত িচিকৎসক িশউিলেক অে াপচােরর
কে িনেয় এেনসেথিসয়া ইনেজকশন পুশ কেরন। এরপরই তঁ ার অব ার অবনিত ঘেট। সে সে তঁ ােক িনেয়
ঢাকা মিডেকল কেলজ হাসপাতােলর উে েশ রওনা হন তঁ ারা। পেথ িশউিলর মৃত হয়।
অিভযু ডা ার বেলন:
রাগীেক কােনা ইনেজকশন পুশ করা হয়িন। অে াপচারকে বদু িতক বািতর আেলা দেখ িতিন
হেদরােগ আ া হেয় মারা গেছন।

 িচিকৎসেকর অবেহলায় সাংবািদক মৃত র িতবােদ সমােবশ বৃহ িতবার, ১৮ অে াবর২০১২, The Janaknatha

 িসরাজগে সূিতর মৃত , হাসপাতাল ভাংচর

১৮ অে াবর২০১২, The Janaknatha

Dr Palash Bose
 িচিকৎসেকর অবেহলায় িশ মৃত র অিভেযাগ
বার, ১৯ অে াবর ২০১২ Daily Shokaler Khobor

অিভেযাগ:
 িশ কন া সুমাইয়া (৫) পািনেত ডেব যায়। হাসপাতােল ডা ার না থাকায় িবনা
িচিকত্ সায় ওই িশ র মৃত হয়।

অিভযু ডা ার বেলন:
 অিভযু ডা ার বেলন, আিম দুপেু রর খাবার খেত বাইের িগেয়িছলাম। এ সময় সহকারী
িচিকত্ সা কমকতা র হাসপাতােল দািয় পালন করার কথা িছল। িক িতিন না আসায় এ
ঘটনা ঘেটেছ।

Dr Palash Bose
Professional Secrecy
 It is an implied term of contract between a
doctor & a patient where the doctor is obliged to
keep secrets all that he comes to know
concerning the patient in course of his
professional works and disclosure of which will
be failure of trust & confidence.

 Medicolegal importance
 The patient can sue the doctor for damages if
 disclosure is voluntary
 has resulted in harm &
 of no public interest.
EXAMPLES:

 A doctor should not discuss the illness of his

pt. with others without the consent of patient.
 A doctor should not answer any enquiry to 3rd
party, even when enquired by near relatives of
the patient, by public authority or statuary body
about the nature of illness without the consent
of the patient.
 Even in case of husband & wife , the facts relating
to the nature of illness of one must not be
disclosed to other without prior consent
 Facts of illness of servant should not be
disclosed to master even the master is paying the
fee
 The M.O of a firm or factory should not disclose
the result of the examination of an employee to
employer
 M.O. of Govt service is also bound by code of
professional secrecy even when the patient is
treated free
 In reporting a case in medical journal, care
should be taken that the patient’s identity is not
revealed from the case notes or photograph
 In examination of dead body, certain facts
may be found, the disclosure of which may
affect the reputation of the deceased or cause
distress to his family & as such the doctor
should maintain the secrecy
Privileged Communication
 It is a statement made bonafide upon
any subject by a doctor to the
concerned authority due to his duty
to protect the interest of the
community or of the state.
EXAMPLES:
 INFECTIOUS DISEASES:
 A cook or a waiter in a hotel or a food handler with
enteric infection, teacher with TB should be persuaded
to leave the job until he becomes non-infectious. If he
is not agreed, the doctor should inform the legal
authority
 VENERAL DISEASE:
Pt. suffering from syphilis or any other STD doctor
should prohibit him to marry or entering into the
swimming pool till cured. If he denies, the doctor can
inform his partner /authority about his condition.
 NOTIFIABLE DISEASE:
Doctor has a statutory duty to notify birth, death &
infectious diseases to public health authority.
 SUSPECTED CRIME:
If a doctor can know during treating a patient about
serious crime such as murder, assault, rape he should
inform the police.

 PATIENT’S OWN INTEREST:

If a patient is suffering from suicidal tendency or
melancholia , the doctor may disclose the patient’s
condition to others for treatment

 SELF INTEREST:
When patient brings civil or criminal action against
doctor,evidence about the pts condition may be given
without any hesitation
 SERVANTS & EMPLOYEES:
An engine driver or a bus driver or ship’s
officer suffering from epilepsy, drug addiction
or colour blindness should be persuaded to
leave the job, if he denies disclosure should be
done
 COURTS OF LAW:

Whatever information is required by the court

for the interest of justice, the doctor is legally
bound to narrate the same before the court as
per his knowledge
RES IPSA LOQUITUR
 Means “the thing or fact speaks for itself”
which is so evident that surely and undoubtly
proves the negligence of the doctor.
 Three essential conditions must be proved:
 That without negligence the injury would not
have occurred
 That the doctor had exclusive control over the
instruments & treatment
 That the patient was not guilty of contributory
negligence
EXAMPLES:
 Breaking of needles during giving injection or
mismatched blood transfusion
 Failure to remove swab after operation

 Prescribing overdose of medicine producing side

effects
 giving poisonous drugs carelessly

 Failure to give anti tetanus serum in injury

causing tetanus
 Burns or scalds from from X-ray therapy

 Loss of function from prolonged splint

The doctrine is applied both in civil & criminal cases

NOVUS ACTUS INTERVENIENS

 Novus actus interveniens means “A New Act

Intervening”
 A person is responsible not only for his action
but also for the logical consequences of those
actions in case of assault/accidental injury.
 For a plea of novus actus, an element of
negligence is essential.
Vicarious liability
 This means liability of the “respondent superior”
due to the act of another where there must be
an employer – employee relationship and the
employee’s conduct/negligence occur within
the scope of employment and while on the job.

Example: The senior medical officer/ward /

unit in charge will be responsible for the
negligent act of the subordinate employee.
Contributory Negligence
 Contributory negligence is any
unreasonable conduct or absence of
ordinary care on the part of the patient or
his personal attendant which combined
with doctor’s negligence contributed to
the injury complained of as a direct
proximate cause and without which the
injury would not have occurred.
Examples
 Failure to give the accurate medical history
 Refuse to take the suggested treatment

 Leaving the hospital against the doctor’s

advice
 Failure to seek further medical assistance if
symptoms persists

If the doctor and the patient are negligent at

the same time, it is a good defence for the
doctor
Thank you