Medico Legal Aspects In

Dental Practice
Legal Modalities In Medical
Profession
 Legal Avenues Available to Aggrieved Patients
to Sue Health Professionals

• MCI & DCI

• Civil Courts
• CPA
(Consumer Protection Act 1986)

• Indian Penal Code 1860

• PIL Public Interest Litigation
Doctors Under Tremendous Pressure
Doctor In A Predicament !
LITIGATION!!!!!!!!
 The Fallout of Escalating Litigation
• It takes a terrible toll on doctors.
• Creates an alarming fear amongst
the medical fraternity.
• Even the hardworking and
conscientious doctors feel
vulnerable to litigation.
• Many hesitate to touch the
patients with complications.
• Doctors involved in lawsuits
suffer from depression, burnout,
emotional exhaustion and often
become suicidal.
• It pushes the doctors towards
heavy professional indemnity
policies.
 The Real Problem
• Laws are problematic.
• Doctors and judiciary speak in different lang.
• Hospitals don’t have legal officers.
• Hospitals don’t have advocacy cells.
• The gap in the law leaves patients and doctors at a
dead end.
 Liability of Health
Professionals
• Tortious liability

• Contractual liability

• Criminal liability

• Statutory liability
Litigation Negligence

Negligence Diagnosis

Deficiency
Treatment
of service
 Legal Terminology

– Cognizable offence
– Non-cognizable
– Bailable
– Non bailable
– Compoundable
– Non compoundable
 Need & Advantages Of CPA
• Delay to decisions
• Limited access to the courts
• Difficult to prove both negligence and causation
• No provisions in the Indian Medical Council Act, 1956
– to entertain any complaint from the patient
to award any compensation, etc. in case the negligence is proved
Under CPA :
• Court fee is less
• Speedy justice
• Procedural simplicity. Complainants can state their own case without a lawyer
• A non-intimidating atmosphere and encouragement to settle case without too
much of formalities and lengthy procedures
 What a medical doctor should know about
CPA?

• Who is a consumer?

• Who can file a complaint?

• What is a complaint?

• What is deficiency of service?

 Medical Association Vs V. P. Shantha and others III
(1995) (CPJ) SC Indian
• All pvt. & govt hospitals
and doctors employed
by them and the
independent
medical/dental
practitioners except
primary health centres,
birth control measures
anti malaria drive and
such welfare activities
can be sued under the
CPA.
 Who is a consumer?
• A consumer is a person who hires or avails of any services for a
consideration that has been paid or promised or partly paid ……………
• This definition is wide enough to include a patient who merely
promises to pay.
 Complaint
• Complaint means any allegation in writing by the
complainant that he has suffered loss or damage due
to deficient services. It can be related to deficiency
causing discomfort, loss of activity, loss of money, loss
of workdays, quality of life etc.
 What is deficiency of service?

Deficiency of service means any fault, imperfection,

shortcoming, or inadequacy in the quality, nature, or
manner of performance that is required to be maintained by
or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service
 Procedure

• A complaint has to be filed within TWO years .

• A copy of complaint is sent to dentist directing him to give
his version with in a period 30 days, extended up to 45 days.
• During reply, dentist may deny the allegation of the
complaint.
• The machinery is required to decide the cases within three
months
• Appeal against District Forum order within 30 days
• The State or National Commission decide the appeal in 90
days from the first date of hearing.
 Procedure-contd

• If complaint is found to be frivolous or vexatious dismiss the

complaint and make an order that the complainant shall pay
to the dentist such cost, not exceeding 10,000 rupees.

• failure to comply with any order shall be punishable with

imprisonment for a term which shall not be less than one
month but which may extend to three years, or with fine
which shall not be less than 2,000 rupees but which may
extend to Rs 10,000 or with both.
 What is the Duty Owed?

Laxman v. Trimback AIR 1969 SC 128

• To bring to his task a reasonable degree of skill and knowledge

• To exercise “a reasonable degree of care”
How much knowledge expected from a doctor?

Reasonable Knowledge
 When does the doctor’s liability arise?

• When there is a
breach of duty.

• Such a breach must

have caused the
damage to the
patient.
Medical Professionals in Criminal Law
 Jacob Mathew vs State Of Punjab & Anr

• The essential components of negligence are

'duty', 'breach' and 'resulting damage'.

• Occupational negligence is different from one

of professional negligence.
• A professional is negligent if he does not
possess requisite skill or, he did not exercise
it
• test for determining medical negligence as
laid down in Bolam's case [1957] holds good
What Is Bolam Test?

Bolam versus Friern Hospital Management

Committee (1957) 1 WLR 582
 Jacob Mathew vs State Of Punjab & Anr

For an act to amount to criminal negligence, the degree

of negligence should be much higher i.e. gross or of a
very high degree

The word 'gross' has not been used in Sec 304 A of IPC

The hazard taken by the accused doctor should be of

such a nature that the injury which resulted was most
likely imminent.
Res ipsa loquitur has, if at all, a limited application in trial
on a charge of criminal negligence
 Apex Court's Guidelines: 2005

• Mandatory prima facie evidence

– Private complaint permitted only if supported by another
doctor’s opinion.
• Directions for Police
– IO should obtain independent and competent medical
opinion
• Directions in Matter of Arrest
– Doctor may not be arrested as a matter of routine
 Apex Court's Guidelines: 2005
Proposed Guidelines for Arrest

• There must be allegation of criminal negligence on the part of doctor,

supported with an opinion from another doctor to register a case u/s 304A
IPC.
• I.O. must confirm the death and ask for autopsy by a board of doctor (at
least 3 comprising one from same specialty under which deceased was
getting treatment, one forensic medicine expert).
• SDM / Executive Magistrate should hold inquiry as in case of custodial
death.
• Independent inquiry by IMA by board of doctors who are competent and
respectable in the locality.
• Arrest executed only, if alleged accused doctor is non-cooperative and
obstructing the inquiry or cause disappearance of evidences.
• Consideration should be given to doctor's reputation, his experience, and
previous allegations, number of prospective and admitted patients under
his care.
• Adverse publicity should not be allowed
• Provision of bail as per the Criminal Amendments Act-2005.
 Important offences inviting criminal liability :
negligence

• Section 304A Indian Penal Code (Sec 304 A IPC) - Negligent

homicide. A rash or negligent act resulting in death, e.g. death on
the dental chair.
• Sec 336 (IPC) - An act endangering the life of a person (even if there
is no injury), e.g. extracting a tooth for a patient with valvular heart
disease without antibiotic prophylaxis against endocarditis (even if
he does not develop endocarditis).
• Sec 337 (IPC) - A rash or negligent act causing simple injury, e.g. pain
and swelling after extraction due to negligent extraction.
• Sec 338 (IPC) - A rash or negligent act resulting in grievous injury,
e.g. fracture of jaw during extraction due to excessive or improper
force.
DENTAL MALPRACTICE OR NEGLIGENCE ?
 A Dentist Needs To Be Aware Of The Following

• Legal consequences in the case

of nonconformity to the
standards

• Procedures of law

• Attentive enough to stay safe

from liabilities arising due to
unintentional negligence or
bogus litigations with malicious
intentions
 PATIENT HANDLING

• Consent
• Case recording
• Drug prescription
policy
• Knowledge of emergency situation handling
 Consent
• Not taking consent amounts to ‘deficiency’ in
medical services under sec 2(i)of the CPA.
• Written consent mandatory for every dental
procedure.
• Consent refers to one specific procedure not
blanket permission.
• Consent not a defense to dental practitioner in
negligence
 Types Of Consent

• Implied Consent- is Unwritten

– Includes-history taking’
– Ordinary medical examination—(inspection,
palpation, auscultations)
– Excludes consent for examination of pvt. Parts or
matters such as injections

• Informed Consent—is Written

– Patient to be given enough information about the
proposed treatment in understandable language
 The elements of informed consent

• Diagnosis and the nature of illness,

• Nature and the purpose of treatment or procedure
recommended,
• Risks and benefits of the proposed treatment,
• Estimate of success of treatment,
• Prognosis if no treatment is elected and alternative
treatment plans,
• Right of the patients to ask questions, and have their
answers.
Risk of extractions must be informed
 Proper Documentation

• The patient’s dental

record must contain:
• a clear chronology of
events;
• future treatment plans;
• all important
communication between
the dentist and patient.
 Legal limit for preservation of medical
records
•Record should be preserved for at least 25 yrs

•Other medico-legally importance records should be

preserved -10 yrs

Routine case records should be preserved

After completion of treatment-6 yrs
After Death of the patient-3 yrs

•Records of public interest are transferred to public

records library after 50 years
 Preservation of Medical Records
•Record should be preserved for at least 25 yrs

•Other medico-legally importance records should be

preserved -10 yrs

Routine case records should be preserved

After completion of treatment-6 yrs
After Death of the patient-3 yrs

•Records of public interest are transferred to public

records library after 50 years

•Those involving confidentiality of individuals-100yrs

 Drugs and Cosmetics Act 1990;Narcotic Drugs and Psychotropic
Substances Act, 1989; Poisons Act,1919

•Regulates and deals with all drugs

used for treatment/
diagnosis/prevention of disease
•Drugs used in dentistry should be
regulated by the ACT

•Misuse of drugs like

sedatives/tranquillizers/narcotic
analgesics can invite stringent
punishment

Arsenic etc., are regulated by Poison

Act
In emergencies

• Consent is not required

• Drug reactions are not
considered negligent
• Any act done in good faith
is exempt from clauses of
negligence.
 A Dentist’s Do’s & Don’ts In A Dental Clinic Mishap

• Complete the patient's record

and recheck the written notes.

• Be frank enough and inform

clearly of the mishap

• Don't disturb the scene of

incident, or remove evidence
from the scene. Cooperate with
investigating agencies

• the dentist should contact some

other doctor / protection
organization to seek advice.
 In Case Of Mishap- contd

• Keep ready surety / Documents for bail.

• Know your rights while in custody to avoid unnecessary

harassment by the police.

• If illegal detention, inform higher police authority, or do

registered letter/ fax to NHRC, SHRC etc.

• never try to give threat, or bribe to deceased relatives or

friends.
 A Few Dental Negligent Acts
• Failure to attend an emergency is negligence.
• Endangering the health or lives of other patients (even without
injury) can invite criminal negligence
• All the patients have a right to information about the procedure
and possible outcomes. Failure to explain may be considered a
negligent act. It may, however, not be necessary in emergency.
• general dentists' attempt to treat beyond their level of
competence and failure to refer cases to the appropriate
specialist.
• Lack of informed consent is a cause of malpractice action, and
without it, battery (unlawful touching) can be alleged
• Dentist must engage in acceptable practice
• Failure to give advice clearly results in complication
• If prescriptions are not clear and if they do not have proper
instructions
 Negligent Dental Practices
• Nerve injuries that affect a patient's ability to taste and/or cause
permanent numbness to the nerves of the tongue, jaw, chin and
lips, including lingual nerve injury (tongue) and inferior alveolar
nerve damage (lips, chin and jaw)
• Permanent or temporary numbness or loss of taste sensation
• Permanent or temporary structural injuries to the tongue, jaw,
chin or lips
• Temporo Mandibular Joint (TMJ) disorders
• Wrongful death resulting from dental procedures or oral surgery
• Injuries or death caused by improper or negligent administration
of anesthesia
 Negligent Practices

• Complications arising from negligently completed crowns and

bridges
• Dentists' failures to take into account a patient's relevant medical
history
• Failure to detect oral cancer, periodontal disease, or other diseases
• Certain complications from anesthesia, even when releases are
signed
• Unnecessary extraction of multiple teeth and/or extraction of
wrong teeth
• Molesting a patient while under sedation
• Failure to obtain informed consent
• Treatment exceeding the scope of informed consent
 Negligent Acts contd---

• Failure of dentist to advice a crown for root canal filled tooth

with significant loss of tooth substance can result in fracture
of tooth
• Accidental ingestion of crowns, dental instrument, teeth etc
• Patient given local anesthesia without test dose

• Under Public Liability Insurance Act, a dentist can be held

liable for harm caused to the public by inadvertant exposure
of harmful substances like mercury, arsenic or for those
matter even radiations
 Non-Negligent Acts
• Not obtaining a consent form in an emergency is not
negligent.
• Patient's dissatisfaction with the progress of treatment
cannot be called negligence.
• Not getting desired relief is not negligence.
• Charging, what the patient thinks is exorbitant is not
negligence.
• When patient does not follow advice of the doctor and
does not get satisfactory results, dentist cannot be
held negligent
 Protection to the Doctors by the Courts
• Civil Appeal No. 3541 of 2002,Martin F. D’souza …Appellant Vs Mohd. Ishfaq
…Respondent
Judgment: Markandey Katju, J.

• A private complaint should not be entertained unless the

complainant has produced prima facie evidence before the court in
the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the
accused doctor

• An investigating officer should, before proceeding against the

doctor accused of rash or negligent act or omission, obtain an
independent and competent medical opinion, preferably from a
doctor in government service, qualified in that branch of medical
practice who can normally be expected to give an impartial opinion
applying the Bolam test.
 How to deal with Criminal Negligence
Allegations
•Take the patient's relative or friend or social workers in
confidence.
•Inform the police, complete the patient's record meticulously.
• Put on record notes regarding CPR, use of ventilator and
other emergency treatment, opinion of senior colleagues.
• If, there is any possibility of allegation of criminal negligence,
never handover the body of deceased without autopsy, always
call the police.
• If possibility of arrest is there, arrange for anticipatory bail.
Be prepared to face the trial.
•Don't disturb the scene of
incident, or remove evidence
from the scene. Cooperate with
investigating agencies.

•Take help of local IMA, and

competent advocate and forensic
medicine expert dealing with
these types of cases. Keep ready
surety / Documents for bail.
• Know your rights while in
custody to avoid unnecessary
harassment by the police. If illegal
detention, inform higher police
authority, or do registered letter/
fax to NHRC, SHRC etc.
• never try to give threat, or bribe
to deceased relatives or friends.
Legal Pitfalls
• Licenses and registrations
• Infrastructure and facilities
• Clinical assistants
• Patient management
related issues
– Medical history
– Consent
– Medical or dental records
– Response
emergency
during
Death in Dental Clinic
 How to deal with Criminal Negligence
Allegations
•Take the patient's relative or friend or social workers in
confidence.
•Inform the police, complete the patient's record
meticulously.
• Put on record notes regarding CPR, use of ventilator and
other emergency treatment, opinion of senior colleagues.
• If, there is any possibility of allegation of criminal
negligence, never handover the body of deceased without
autopsy, always call the police.
• If possibility of arrest is there, arrange for anticipatory
bail. Be prepared to face the trial.
• Don't disturb the scene of incident, or remove evidence
from the scene. Cooperate with investigating agencies.
•Take help of local IMA, and competent
advocate and forensic medicine expert
dealing with these types of cases. Keep ready
surety / Documents for bail.

• Know your rights while in custody to avoid

unnecessary harassment by the police. If
illegal detention, inform higher police
authority, or do registered letter/ fax to
NHRC, SHRC etc.

• Never try to give threat, or bribe to

deceased relatives or friends.