MCI wakes up and decides to issue guidelines to define various meaning and definitions of professional incompetence

By

1. Dr. (Prof.) Mahesh Baldwa,

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

Senior Pediatrician & Medicolegal Advisor

Formerly Assistant Professor of Pediatrics at T.N. Medical College and Nair Hospital, Mumbai-8

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 Om Hospital, Sumer Nagar, S.V. Road, Borivali (West) Mumbai 400 092

• Dr. Sushila Baldwa, MBBS, MD Consultant, Baldwa Om Hospital, Borivali West, Mumbai

• Dr Namita Padvi, MBBS, MD, DNB, PGDML, Emirates Hospital Dubai

• Dr Varsha Baldwa, MBBS, MD, PGDML, Government Medical College, Kota, Rajasthan

Introduction

It is better late than never ever. MCI wakes up and decides to issue guidelines to define professional incompetence, malpractice, medical negligence etc. This may pre-empt discretion of authorities and may be judiciary also.

Ethics 2002 were not followed by MCI itself

MCI was authorized to guidelines Professional incompetence as per Section 8.6 of the Code of Medical Ethics Regulation 2002 read, “Professional incompetence shall be judged by peer group as per guidelines prescribed by Medical Council of India”

Wake up call due to recent increase in litigations against medical professionals

In recent times, professional incompetence has become one of the growing reasons for medical negligence involving litigations and complaints to quasi-judicial authorities. It is left to administrative and quasi/judicial discretion to further add ambiguities regarding the issues of professional incompetence without being addressed by the medical fraternity.

Finally MCI wakes up and decides to issue guidelines to define professional Incompetence, malpractice, medical negligence etc. for implementation a special committee is formed to propose a set of guidelines, to fill in the void of having specific definitions involving various issues involving adjudication of medical incompetence/malpractice and negligence as well as to specify guidelines for peer assessment to ascertain the professional incompetence of a professional.

So far professional incompetence, professional misconduct, malpractice, deficiency of service, unfair trade practice  and professional incapacitation by and large are used interchangeably in  operational sense by various authorities.

Meaning and defining various relevant terms to litigations and complaints

This is for this reason it has become imperative that the distinction between the various terms used be defined. Some of the proposed meanings and definitions to be used by peer group are

1. Adverse event means -an unintended injury to patient that results from healthcare management and results in measurable disability, prolonged hospitalization or both.
2. Bolam Test means- the test evolved out of the judgment in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 used to assess standard of care when deciding medical negligence.
3. Clinical Establishment means- establishment as defined in the Clinical Establishment Act, notified by the Government of India.
4. Institution means -a medical college permitted / approved / recognized by the Medical Council of India / Non-Teaching Hospitals.
5. Medical accident means -an unforeseen or unexpected medical event causing loss or physical damage or injury, brought about unintentionally, as a result of treatment or failure to treat appropriately due to ignorance or lack of knowledge.
6. Medical error -The failure of a planned action to be completed as intended or use of a wrong inappropriate, or incorrect plan to achieve an aim.
7. Medical malpractice means negligent or improper or unreasonable lack of skill in the treatment of a patient, on the part of a health care professional or health care facility that causes harm, injury, or death to a patient or any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient. Or improper, unskilled, or negligent treatment of a patient by a health care professional. Or Medical malpractice is the failure of a medical professional to follow the accepted standards of practice of his or her profession, resulting in harm to the patient.
8. Medical mishap means- an unfortunate accident
9. Peer means – a person who is equal in ability, standing, or rank with another Professional incapacity means inability to carry out professional activities and responsibilities/obligations due to a physical or mental condition/illness that may limit the capacity of a professional person to fulfill his/her professional responsibilities/obligations temporarily or permanently.
10. Professional incompetence means- failure to exercise due care and diligence in professional responsibilities due to lack of knowledge, skill.
11. Professional misconduct means – unacceptable/dishonorable and unethical behavior by a professional person or non compliance with the applicable laws and regulations.
12. Professional negligence means – an act or omission (failure to act when there is a duty to act) which a reasonable man in the circumstances would do or an act of commission (wrong doing) by a medical professional, which a reasonable man in the circumstances would not do.
13. Untoward event means- an unfavorable or adverse event.

Operational guidelines

Following guidelines to operationalige definitions and meanings by peer group shall be formed as below Peer group shall assess after being duly constituted. Peer group shall judge professional / medical incompetence of a registered medical practitioner. This shall be applicable for any medical trial jurisdiction at the institutional or at any council level. The guidelines are not applicable to criminal aspect of professional negligence.

Composition of the peer group and its working:

a)     Peer Group shall be constituted at Institutional / Clinical Establishment / State Medical Council / Medical Council of India level to judge the professional incompetency of a registered medical practitioner in a time-bound manner.

b)    The peer group shall be a three-member committee with a chairman, one IMA nominee and one professional subject expert.

c)     The peer group on receipt of any complaint shall examine the allegation in a time-bound manner, preferably within two weeks and forward its reasoned-out speaking order following the principle of natural justice and based on “Bolams Test” to the Institutional Head, Clinical Establishment Head / Chairman of the Ethics Committee of the State Medical Council / Chairman of the Ethics Committee of the Medical Council of India as the case may be.

Notification of guidelines

The above guidelines shall come into the force from date of its Notification.