FIRST NATIONAL DAILY MEDICAL NEWSPAPER OF INDIA
29th November Sunday
Professional Negligence vs Professional Deficiency vs Professional Misconduct (emedinews revisited)
These are the three definitions which must be understood by all of us as well as the specialists called as experts. When an inquiry is held, in the report of the experts it is very important not to intermix these definitions as they may have serious medico legal implications.
1. Professional Deficiency is an act of omission or commission leading to a loss to the patient or to his or her family. Here, the case is decided on the Bolam's principles where it is judged whether or not the doctor has acted by providing an average degree of skill, care or service. Any deficiency in the service is not a medical negligence and also is not professional misconduct. Professional deficiency is liable for compensation under Consumer Protection Act and the same is paid by the insurance company under the Indemnity Insurance. (Bolam Test See Below)
2. Professional misconduct is well defined in Medical Council of India Rules and is punishable by the Council in the form of warning or suspension of practice for a specific period.
As per MCI the following acts of commission or omission on the part of a physician shall constitute professional misconduct rendering him/her liable for disciplinary action
7.2 If he/she does not maintain the medical records of his/her indoor patients for a period of three years as per regulation 1.3 and refuses to provide the same within 72 hours when the patient or his/her authorised representative makes a request for it.
7.3 If he/she does not display the registration number accorded to him/her by the State Medical Council or the Medical Council of India in his clinic, prescriptions and certificates etc. issued by him or violates the provisions of regulation 1.4.2.
7.4 Adultery or Improper Conduct: 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.
7.5 Conviction by Court of Law: Conviction by a Court of Law for offences involving moral turpitude / Criminal acts.
7.6 Sex Determination Tests: On no account sex determination test shall be undertaken with the intent to terminate the life of a female foetus developing in her mother's womb, unless there are other absolute indications for termination of pregnancy as specified in the Medical Termination of Pregnancy Act, 1971. Any act of termination of pregnancy of normal female foetus amounting to female foeticide shall be regarded as professional misconduct on the part of the physician leading to penal erasure besides rendering him liable to criminal proceedings as per the provisions of this Act.
7.7 Signing Professional Certificates, Reports and other Documents: Registered medical practitioners are in certain cases bound by law to give, or may from time to time be called upon or requested to give certificates, notification, reports and other documents of similar character signed by them in their professional capacity for subsequent use in the courts or for administrative purposes etc. Any registered practitioner who is shown to have signed or given under his name and authority any such certificate, notification, report or document of a similar character which is untrue, misleading or improper, is liable to have his name deleted from the Register.
7.8 A registered medical practitioner shall not contravene the provisions of the Drugs and Cosmetics Act and regulations made there under. Accordingly,
a. Prescribing steroids/ psychotropic drugs when there is no absolute medical indication;
b. selling Schedule H & L drugs and poisons to the public except to his patient;
in contravention of the above provisions shall constitute gross professional misconduct on the part of the physician.
7.9 Performing or enabling unqualified person to perform an abortion or any illegal operation for which there is no medical, surgical or psychological indication.
7.10 A registered medical practitioner shall not issue certificates of efficiency in modern medicine to unqualified or non medical person.
(Note: The foregoing does not restrict the proper training and instruction of bonafide students, midwives, dispensers, surgical attendants, or skilled mechanical and technical assistants and therapy assistants under the personal supervision of physicians.)
7.11 A physician should not contribute to the lay press articles and give interviews regarding diseases and treatments which may have the effect of advertising himself or soliciting practices; but is open to write to the lay press under his own name on matters of public health, hygienic living or to deliver public lectures, give talks on the radio/TV/internet chat for the same purpose and send announcement of the same to lay press.
7.12 An institution run by a physician for a particular purpose such as a maternity home, nursing home, private hospital, rehabilitation centre or any type of training institution etc. may be advertised in the lay press, but such advertisements should not contain anything more than the name of the institution, type of patients admitted, type of training and other facilities offered and the fees.
7.13 It is improper for a physician to use an unusually large sign board and write on it anything other than his name, qualifications obtained from a University or a statutory body, titles and name of his speciality, registration number including the name of the State Medical Council under which registered. The same should be the contents of his prescription papers. It is improper to affix a sign board on a chemist's shop or in places where he does not reside or work.
7.14 The registered medical practitioner shall not disclose the secrets of a patient that have been learnt in the exercise of his / her profession except
i. in a court of law under orders of the Presiding Judge;
ii. in circumstances where there is a serious and identified risk to a specific person and / or community; and
iii. notifiable diseases.
In case of communicable / notifiable diseases, concerned public health authorities should be informed immediately.
7.15 The registered medical practitioner shall not refuse on religious grounds alone to give assistance in or conduct of sterility, birth control, circumcision and medical termination of Pregnancy when there is medical indication, unless the medical practitioner feels himself/herself incompetent to do so.
7.16 Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed.
7.17 A registered medical practitioner shall not publish photographs or case reports of his / her patients without their permission, in any medical or other journal in a manner by which their identity could be made out. If the identity is not to be disclosed, the consent is not needed.
7.18 In the case of running of a nursing home by a physician and employing assistants to help him / her, the ultimate responsibility rests on the physician.
7.19 A Physician shall not use touts or agents for procuring patients.
7.20 A Physician shall not claim to be specialist unless he has a special qualification in that branch.
7.21 No act of in vitro fertilization or artificial insemination shall be undertaken without the informed consent of the female patient and her spouse as well as the donor. Such consent shall be obtained in writing only after the patient is provided, at her own level of comprehension, with sufficient information about the purpose, methods, risks, inconveniences, disappointments of the procedure and possible risks and hazards.
7.22 Research: Clinical drug trials or other research involving patients or volunteers as per the guidelines of ICMR can be undertaken, provided ethical considerations are borne in mind. Violation of existing ICMR guidelines in this regard shall constitute misconduct. Consent taken from the patient for trial of drug or therapy which is not as per the guidelines shall also be construed as misconduct.
7.23 If a physician posted in rural area is found absent on more than two occasions during inspection by the Head of the District Health Authority or the Chairman, Zila Parishad, the same shall be construed as a misconduct if it is recommended to the Medical Council of India/State Medical Council by the State Government for action under these Regulations.
7.24 If a physician posted in a medical college/institution both as teaching faculty or otherwise shall remain in hospital/college during the assigned duty hours. If they are found absent on more than two occasions during this period, the same shall be construed as misconduct if it is certified by the Principal/Medical Superintendent and forwarded through the State Government to Medical Council of India/State Medical Council for action under these Regulations.
3. Medical negligence is an act of negligence which can be filed in the Criminal Court for prosecution as well as in the Civil Court for compensation. The examples are operating under the influence of alcohol with resultant harm, operating a wrong limb or the wrong person etc. Medical negligence as well as professional misconduct may not be covered by the insurance company.
In England, standard applicable is popularly known as the Bolam Test, first laid down in Bolam v. Friern Hospital Management Committee  2 All.E.R. 118. McNair J., in a trial relating to negligence of a medical practitioner, while instructing the Jury, stated thus:
1. A doctor is not negligent, if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.
2. When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticized if, believing the danger involved in the treatment to be minimal, did not stress them to the patient.
3. In order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment.
Dr K K Aggarwal