Everything about Doctor-patient relationship

Dr. (Prof.) Mahesh Baldwa,

M.D,D.C.H, FIAP, MBA, LL.B,LL.M , Ph. D(law),MBA

SENIOR PEDIATRICIAN & MEDICOLEGAL ADVISOR

Formerly Assistant Professor of Pediatrics at T.N. Medical College and Nair Hospital, Mumbai-400008

Ex. Asst. Professor JJ Hosp, Grant medical college

Ex.Professor, paper setter & examiner of law to postgraduate students of University Department of Law, University of Mumbai

Baldwa Hospital, Sumer Nagar,S.V. Road,

Borivali (West)Mumbai 400 092

drbaldwa@yahoo.com

drbaldwa@gmail.com

m_baldwa@rediffmail.com

Cell 09322990138

History of Doctor-patient relationship

Since the ancient times, certain duties and responsibilities have been cast on persons who adopt the sacred profession as exemplified by Charak’s Oath ( 1000 B.C.) and Hippocratic Oath ( 460 B.C.).

Who all in India can claim to be doctors?

Prerequisites of Medical Practice

A duly qualified medical professional, i.e. a doctor has a right to seek to practice medicine, surgery and dentistry by registering himself with the Medical Council of the State of which he is a resident, by following the procedure as prescribed under the Medical Act of the State.

The State Medical Council has the power to warn, refuse to register / remove from register the name of the doctor who has been sentenced by any court for any non-bailable offence or found to be guilty of infamous conduct in any professional respect. The State Medical Council has also the power to re-enter the name of the doctor in the register.

The provisions regarding offences and professional misconduct which may be brought before the appropriate Medical Council (State/Medical Council of India ) have been stated in the Code of Medical Ethics formulated by the Medical Council of India.

The appropriate Medical Councils are empowered to award such punishment as deemed necessary or direct the removal of the name of the delinquent registered practitioner from the register either permanently or for a specified period, if he has been found guilty of serious professional misconduct. No action against a medical practitioner can be taken unless an opportunity has been given to him to be heard in person or through an advocate.

Duties and Obligations of a Doctor guiding Doctor-patient relationship

Duties and obligations of doctors guiding Doctor-patient relationship are enlisted in ordinary laws of the land and various Codes of Medical Ethics and Declarations – Indian and International, which are :

(i) Code of Medical Ethics of Medical Council of India ;

(ii) Hippocratic Oath ;

(iii) Declaration of Geneva ;

(iv) Declaration of Helsinki;

(v) International Code of Medical Ethics ;

(vi) Government of India Guidelines for Sterilization.

These Codes and Declarations are being printed in the Appendices. On the basis of these various Codes of Ethics and Declarations, the duties can be summarized as under –

1. Duties to Patient.
2. Duties to Public.
3. Duties towards Law Enforcers.
4. Duties not to violate Professional Ethics.
5. Duties not to do anything illegal or hide illegal acts.
6. Duties to each other.

Who all can claim to be patients?

Any human being who wish to seek treatment from doctor for monetary consideration. Unless free treatment is expressly provided to people at large. The allegation of negligence dose not subsist on payment or specific or general contract

Doctor-patient relationship is a pure ‘contract’ in law.

So both patients as well doctor have to agree for this relationship and that too voluntarily.

Necessity of making Doctor-patient relationship legal

The physician was without reproach and the patient cowered in acceptance of every esoteric or mundane order treating it as God’s own gospel. Arrogance and paternalistic automatic antagonism towards patient party is deeply ingrained into doctors. Doctors presume that they know the best about their patient hence they always issue commands. Doctors expect patients & their parents to follow commands unquestioningly. Doctor should willingly change this situation by being more adaptive and communicating.

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. Contract may be implied or express.

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

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).

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 possibilities for those whom he accepts as patients. It is an implied 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;

(iii) he performs an examination for life insurance purpose ;

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

(v) when he makes an examination at the request of an attorney for last suit purposes. A doctor-patient contract requires that the doctor must :

(1)continue to treat such a person ;

(2) with reasonable care ;

(3)reasonable skill ;

(4) not undertake any procedure/ treatment beyond his skill and

(5) must not divulge professional secrets.

When Doctor-patient relationship starts

It arises the moment a doctor agrees to provide his or her professional services to the patient and the patient accepts this offer.

What is the domain of Doctor-patient relationship?

Doctor is only responsible to patients whom he undertakes to manage by written / implied, tacit or presumed consent. Hence a consent document becomes vital piece of evidence in crystallizing Doctor-patient relationship. Though without consent also, the Doctor-patient relationship can be inferred from conduct of doctor towards his patient.

Who are out of the domain of Doctor-patient relationship?

Legally, doctor is not responsible towards all patients in general or/ at large, but is responsible towards specific patients developing/establishing Doctor-patient relationship.

Rights emanating from Doctor-patient relationship

A doctor has a right to choose his / her patient. A doctor retains the right to choose his or her patients. Ultimately, treatment today is a pure contract between two consenting adults and cannot be forced on a doctor. A doctor is therefore well within his right to refuse treatment to a patient at the outset. A doctor has a right to choose his / her patient.

Duty of particular standard of care emanating from Doctor-patient relationship

Hence next question is to whom a doctor has duty of care? The next logical question is who amongst the patients are entitled to this standard of care. All or only some? The answer is that a doctor is under a legal obligation to provide the ‘standard of care’ only to those patients to whom the doctor owes the “duty of care”. Doctor does not have duty to care towards anyone and everyone whom the doctor meets or speaks, even if that particular conversation is regarding medical science related to unidentified patient. The legal obligation of duty of care starts when legal Doctor-patient relationship is established.

To summarize, the standard of care can be stated in simpler terms.

A doctor must act as other doctors of the same specialty would have acted in same or similar situation.
The fact that others would have acted differently or the majority does not subscribe to a particular course is simply irrelevant. In fact the courts have gone to the extent of accepting that doctors may even have their personal preferences.
An injury, death, complication or unfavorable result of treatment will not necessarily mean that the doctor has deviated from the standard of care.

Two more cautions:

Now a days the latest judicial trend in Indian courts is higher Standard of care expected from a specialist is higher. A specialist is expected to give a higher standard of care than a non-specialist.
Greater degree of care is expected for legally incompetent patients. Similarly in case of incompetent patients, like children, lunatics, etc – greater the disability, greater is the degree of care expected by law from doctors. Greater degree of care is expected for incompetent patients.

What is that conduct doctor which signals Doctor-patient relationship as established and when it gets terminated?

Duty of care arises in physical / telephonic / web consultations and emergencies. Duty of care may arise

By a physical consultation
By a telephonic conversation or web consultation or
By legal compulsion – in case of emergencies.

Once the duty of care has arisen, it continues till the happening of any of the following contingencies:

The patient is relieved of the ailment / anesthesia for which treatment was initiated.
The patient is discharged or transferred
The patient voluntarily seeks discharge from the care of the doctor – discharge against pediatric anesthetist’s medical advice.
The doctor terminates his treatment on valid grounds after giving proper notice.
The patient is dead.
In case of emergency patients, the emergency ceases to exist.

Some perfectly legal and valid reasons for termination are as follows:

The patient / attendant does not pay the doctor’s fees (in case of a private practitioner).
The patient / attendant consults another doctor ( of any branch of medicine ) without the knowledge of the first attending doctor.
Failure of patient to show up for check up on given appointments
Refusal by the patient to allow implementation of the treatment plan
The patient / attendants do not co-operate and follow the doctor’s instructions or refusal by the patient to follow instructions
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.
The doctor has given due notice (orally or written ) for discontinuing treatment.
The doctor is convinced that the illness is a fictions one
Doctor’s change of practice
Doctor’s abandonment of practice

Word of caution:

Nowadays, patients are found to be going to the courts with allegations of pediatric anesthesia negligence only to avoid payment of fees. The courts are also taking note of this epidemic. Keep this in mind.

Doctor-patient relationship defined, detailed and expressed under various statutory laws in India, directly or indirectly

Doctor-patient relationship under the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 is as below:

Though a physician is not bound to treat each and every person asking his services

Regulation 2.1.1 Though a physician is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he discharges in the course of his professional duties. In his treatment, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endeavor to add to the comfort of the sick by making his visits at the hour indicated to the patients. A physician advising a patient to seek service of another physician is acceptable, however, in case of emergency a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. However for good reason, when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician.

A physician is free to choose whom he will serve

Regulation 2.4: A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients from necessary medical care.

Abuse of professional position

Regulation 7.4: Abuse of professional position by committing adultery or improper conduct with a patient or by maintaining an improper association with a patient will render a Physician liable for disciplinary action as provided under the Indian Medical Council Act, 1956 or the concerned State Medical Council Act.

Proof of Doctor-patient relationship under Indian Evidence Act, 1872

As per section 101 of Indian evidence act, 1872 Burden of proof of existence of Doctor-patient relationship lies with patient who alleges:

Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that he burden of proof lies on that person.

Doctor-patient relationship under Indian Contract Act, 1872

As per section 10 of Indian Contract Act, 1872

All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.

As per section 16 of Indian Contract Act, 1872

(1) A contract is said to be induced by “undue influence” where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.

(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another-

(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or

(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.

Doctor-patient relationship under Indian penal code 1860

As per section 405,there is Criminal breach of trust of Doctor-patient relationship

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”.

As per section 418,there is Cheating in Doctor-patient relationship

Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

As per section 463,there is forgery in Doctor-patient relationship

Whoever makes any false documents or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

As per section 491,there is breach of contract to helpless person under Doctor-patient relationship

Whoever, being. bound by a lawful contract to attend on or to supply the wants of any person who, by reason of youth, or of unsoundness of mind, or of a disease or bodily weakness, is helpless or incapable of providing for his own safety or of supplying his own wants, voluntarily omits so to do, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both.

What are the legal duties of medical care particular standard of care emanating from Doctor-patient relationship

In order to understand the complexities of the doctor-patient relationship it is necessary to know about the Duties and Obligations of a Doctor, Doctor-Patient contract and what constitutes Professional Negligence.

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

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. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing.”

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 anesthesia.

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 which 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. In must be bona-fide and without malice, e.g., as a witness in a court of law; warning partners or spouses of AIDS patients and those found infected with HIV; 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.

All the duties of doctor and patient emanating from Doctor-patient relationship

1.Duties to Patient –These are : Standard Care, Providing Information to the Patient /Attendant , Consent for Treatment, and Emergency Care.

(A)Standard Care –This means application of the principles of standard care which an average person takes while doing similar job in a similar situation as per bolams law:

1. Due care and diligence of a prudent Doctor.
2. Standard, suitable, equipment in good repair.
3. Standard assistants: Where a senior doctor delegates a task to a junior doctor or paramedical staff, he must assure himself that the assistant is sufficiently competent and experienced to do the job, and fulfills the prescribed qualifications.
4. Non-standard drug is a poison by definition.
5. Standard procedure and indicated treatment and surgery.
6. Standard premises, e.g. Nursing Home, Hospital , must comply with all laws applicable as imposed by the State and these must be registered wherever required.
7. Standard proper reference to appropriate specialist.
8. Standard proper record keeping for treatment given, surgery done, X-ray and pathological reports.
9. Standard of not to experiment with patient ( See Declaration of Helsinki).
10. Anticipation of standard risks of complications and preventive actions taken in time.
11. Observe punctuality in consultation.

(B)Duty to provide information to patient / attendant

1. Regarding necessity of treatment.
2. Alternative modalities of treatment.
3. Risks of pursuing the treatment, including inherent complications of drugs, investigations, procedure, surgery etc.
4. Regarding duration of treatment.
5. Regarding prognosis. Do not exaggerate nor minimize the gravity of patient’s condition.
6. Regarding expenses and break-up thereof.

(C)Consent for treatment – written, oral, implied, tacit, proxy, presumed, substituted consent giving complete freedom to patient party to decide what he/she wants for his/her body.

(D)Emergency Care –A doctor is bound to provide emergency care on humanitarian grounds, unless he is assured that others are willing and able to give such care. It may be noted that prior consent is not necessary for giving emergency / first-aid treatment. In emergency medico-legal cases, condition of first being seen by medical jurist is not essential.

2.Duties to the Public

1. Health Education
2. Medical help when natural calamities like drought, flood, earth-quakes, etc. occur.
3. Medical help during train accidents.
4. Compulsory notification of births, deaths, infectious diseases, food poisoning etc.
5. To help victims of house collapse, road accidents, fire, etc.

3.Duty towards Law Enforcers, Police, Courts, etc.

1. To inform the police all cases of poisoning, burns, injury, illegal abortion, suicide, homicide, manslaughter, grievous hurt and its natural complications like tetanus, gas-gangrene , etc. This includes vehicular accidents, fractures, etc.
2. To call a Magistrate for recording dying declaration.
3. To inform about bride burning and battered child cases.

4.Duty not to violate Professional Ethics( Only important few given)

1. Not to associate with unregistered medical practitioner and not allow him to practice what he is not qualified for.
2. Not to indulge in self-advertisement except such as is expressly authorized by the M.C.I. Code of Medical Ethics.
3. Not to issue false certificates and bills.
4. Not to run a medical store / open shop for sale of medical and surgical instruments.
5. Not to write secret formulations.
6. Not to refuse professional service on grounds of religion, nationality, race, party politics or social status.
7. Not to attend patient when under the effect of alcohol
8. No fee sharing ( Dichotomy).
9. Not to talk loose about colleagues.
10. Information given by patient /attendant to be kept as secret. Not to be divulged to employer, insurance company, parents of major son/daughter without consent of patient. Even in court this information is given only if ordered by the Court.
11. Recovering any money ( in cash or kind) in connection with services rendered to a patient other than a proper professional fee, even with the knowledge of the patient.

5.Duty not to do anything illegal or hide illegal acts

1. Perform illegal abortions / sterilization’s
2. Issue death certificates where cause of death is not known.
3. Not informing police a case of accident, burns, poisoning, suicide, grievous hurt, gas gangrene.
4. Not calling Magistrate for recording dying declaration.
5. Unauthorized, unnecessary , uninformed treatment and surgery or procedure.
6. Sex determination (in certain States).

6.Duty to each other doctors

1. A doctor must give to his teachers respect and gratitude.
2. A doctor ought to behave to his colleagues as he would like them to behave to him.
3. A doctor must not entice patients from his colleagues, even when he has been called as a specialist.
4. When a patient is referred to another doctor, a statement of the case should be given. The second doctor should communicate his opinion in writing /over telephone/fax direct to the first doctor.
5. Differences of opinion should not be divulged in public.
6. A doctor must observe the principles enunciated in ‘The Declaration of Geneva’ approved by the World Medical Association.

Duties of the Patient / Attendant

When a patient (consumer) hires or avails of services of a doctor for treatment, he has the following duties:-

1. He must disclose all information that may be necessary for proper diagnosis and treatment.
2. He must co-operate with the doctor for any relevant investigations required to diagnose and treat him.
3. He must carry out all the instructions as regards drugs, food, rest, exercise or any other relevant /necessary aspect.
4. In the case of a private medical practitioner he must compensate the doctor in terms of money and money alone. Moral considerations apart, failure on the part of the patient / attendant to do his duty :

(a) will enable the doctor to terminate patient -physician contract and that would free him from his legal responsibilities,

(b) will be construed as contributory negligence, and weaken the case of the patient for compensation.

Doctor-patient relationship and medical negligence

Winfield’s triad of negligence comprised of 1) the existence of legal duty, 2) breach of legal duty, and 3) damage caused by the breach.
Negligence was recognized as a tort only in 1932 with Donohue vs. Stevenson[i].
In 1957, in the landmark case of Bolam vs. Friern hospital management committee[ii], McNair gave the following directions: “a doctor was liable to be held responsible for negligent act subject to his having acted in a manner that would not be endorsed by a professional body of peers.”
In 1997 , the Bolitho vs. City and Hackney Health Authority[iii] case, for the first time it was held that peer review alone could not decide medical negligence, but must accommodate patient’s expectations in care by allowing rationality in medical decision making, and allowing judicial oversight in medical negligence, with the help of a variety of medical opinion.
In 1994 in an English case law which says that the Bolam test is being modified so that a court can reject medical opinion if it is not reasonable or responsible. For example, in Smith vs. Tunbridge Wells Health Authority[iv], it was neither reasonable nor responsible for a surgeon not to mention the risk of impotence from rectal surgery, even if some doctors do not mention that risk.
In 1992 in a case before Australian courts in Roger v whitaker[v] have held doctors negligent for failure to disclose risks of 1:1400o of sympathetic opthalmia leading blindness, hence doctor failed to disclose a material risk will be held liable on that account alone.
Landmark case of IMA v V P shanta[vi] emphasized Doctor-patient relationship reaffirmed in Jacob Mathews[vii] in 2005 ,Martin De Souza[viii] in 2009 and Nikhil superspecialty[ix] in 2010