LAWS ANDDENTISTRY

RINEE KHANNA

INTRODUCTION

Every profession has interaction with the law. It is important for the dental assistant to understand the law as it relates to dental assisting and the practice of dentistry.

Regulations regarding dental assistants vary greatly from state to state, and the roles and the responsibilities of the dental assistant also vary from state to state.

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OATH

“Thou shall be free from envy, not cause another’s death, and pray for the welfare of all creatures. Day and night thou shall not desert a patient, nor commit adultery, be modest in thy attire and appearance, not to be drunkard and sinful, while entering the patient’s house, be accompanied by a person known to the patient. The peculiar customs of the patient’s household shall not be made public”

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DOCTOR PATIENT CONTRACT

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DOCTOR-PATIENT CONTRACT

Contract is defined as an obligation to do or not to do a particular thing. agreement between two or more persons which creates

A dentist may refuse to treat a patient for any reason except race, creed, color, national origin or based upon a person’s disability. Patients suffering from HIV, fall into the category of disabled persons.

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-An Implied Contract

An implied contract is one inferred from conduct of parties and arises where one person renders services under circumstance.

Implied contract is not established when, The doctor renders first-aid in an

emergency. He makes a pre-employment medical

examination for a prospective employer. He performs an examination for life

insurance purpose

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Implied Warranties Owed By The Doctor –

Use reasonable care and methods in the provision of services.

Be properly licensed and registered and meet all other legal requirements.

Maintain a level of knowledge in keeping current advances.

Not use experimental procedures.

Ensure that care is available in emergency situations.

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Charge a reasonable fee.

Keep the patient informed of her or his progress.

Not to undertake any procedure for which the practitioner is not qualified.

Complete the care in a timely manner.

Keep accurate records.

Practice in a manner consistent with the code of ethics of the profession.

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Implied Duties Owed By The Patient –

When a patient hires or avails of services of a doctor

for treatment, he has the following duties:

He must disclose all information that may be necessary for proper diagnosis and treatment.

He must co-operate with the doctor .

He must carry out all instructions as regards drugs, food, rest, exercise or any other relevant / necessary aspect.

He must compensate the doctor in terms of money.

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An Express Contract –It is an actual agreement of parties, the

term of which are openly uttered or declared at the time making it, being stated in distinct and explicit language.

A doctor-patient contract requires that the doctor must –

I. Continue to treat such a person.II. With reasonable care.III. Reasonable skill.IV. Not undertake any procedure/treatment

beyond his skill.V. Must not diclose professional secrets.

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The doctor-patient relationship ends when:

Both parties agree to end it. Either the patient or dentist dies. The patient ends it by act or

statement. The patient is cured. The dentist unilaterally decides to

terminate the care.

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CONSENT

The term consent is defined as “when two or more person agree upon same thing in same sense they are said to be in consent” given in section 13 of Indian contract act 1872.

WHO CAN GIVE CONSENT ? For purpose of clinical examination diagnosis

and treatment ,consent can be given by any person who is conscious ,mentally sound and above 12 years of age as provided under section 88 &90 of Indian Penal Code,1860.

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WHEN CONSENT IS NOT VALID ?Consent given under fear ,fraud or

misrepresentation of facts or by a person who is ignorant of implications of consent or who is under 12 years of age is invalid.

TYPES OF CONSENT

IMPLIED CONSENT:The fact that a patient comes to a doctor

for an ailment implies that he is agreeable to medical examination in general sense.

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EXPRESS CONSENT:Anything other than implied consent is express

consent. This may be either oral or written. Express oral consent is obtained for relatively minor examination or therapeutic procedures.

INFORMED CONSENT:All information must be explained in

comprehensible non medical terms preferably in local language about:

Diagnosis Nature of treatment Risk involved Prospects of success prognosis

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PROXY CONSENT:

All above type of consent can take the shape of proxy consent. Parents for child, close relative for mentally sound patient etc.

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SITUATIONS WHERE CONSENT NEED NOT BE OBTAINED BY

CONCERNED MEDICAL PROFESSIONAL:

Medical emergencies. In case of person suffering from a

notifiable disease like AIDS. Immigrants Members of armed force New admission to prisons In case of person where court may

order for psychiatric examination

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SITUATIONS REQUIRING EXTRA CAUTION :

Retention of object in operation sites

Accident and emergency department: senior staff must be readily available

Amputation of wrong limb digit or operation of wrong eye or tooth

Anesthesia:Anesthesia along with surgeons,

present a common target for litigation.

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PROFESSIONAL NEGLIGENCE Professional negligence is defined as breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulates the conduct of human affair would do or doing something which a prudent and reasonable man would not do.

Medical negligence is defined as lack of reasonable care and skill or willful negligence on part of a doctor in treatment of patient.

In order to achieve success in action for negligence consumer must be able to establish to court that:

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Doctor owed him a duty to conform to a particular standard of professional conduct

Doctor was derelict and breached that duty

Patient suffered actual damage.

CRIMINAL NEGLIGENCE:

Some examples are: Injecting anesthesia in fatal dosage Amputation of wrong operating site Operation on wrong patient Leaving instrument inside body part Transfusing wrong blood Performing criminal abortion

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CONSUMER PROTECTON ACT The Consumer Protection Act, 1986 that came into force

on 15th April 1987 - is a milestone in the history of socio-economic legislation in the country.

It is one of the most progressive and comprehensive piece of legislations enacted for the protection of consumers.

The main objective of the act is to provide for the better protection of consumersThe act is intended to provide simple, speedy and inexpensive redresses to the consumers 'grievances, and relief of a specific nature and award of compensation wherever appropriate to the consumer.

amended in 1993and in 2002 - extend its coverage and scope and to enhance the powers of the redresses machinery

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Who is liable?

All medical/dental practitioners doing independent medical/dental practice unless rendering only free service

Private hospitals charging all patients. All hospitals having free as well as paying

patients and all the paying and free category patients receiving treatment in such hospitals.

Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or on employment for that of an employee

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Who is not liable? It exempts only those hospitals

and the medical/dental practitioners of such

hospitals which offer free service to all patients.

 The Act envisages three- tier quasi-judicial machinery at the National(National Commission), State (State Commission) and District levels(District Forum).

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SUPREME COURT

 (Final Appeal)

NATIONAL COMMISSION

Appellate Authority over State Commission Original Jurisdiction Over Rs.20, 00,000

STATE COMMISSION

Appellate Authority for District Forums motto Revision Original Jurisdiction over Rs. 5,00,000 up to

Rs. 20,00,000

DISTRICT FORUM

Original Jurisdiction up to Rs. 5,00,000

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Structure of consumer forums / commissions and their jurisdictions:

As per the consumer Protection Rules, 1987, a complaint filed in the Consumer Forum / Commission shall be adjudicated, within a period of 90days from the date of notice by opposite party and within 150 days if it requires analysis or testing of commodities. The Consumer Protection (Amendment) Act, 1993 has introduced a new section, stating that the forums shall not admit a complaint unless if it is filed within 2 years from the date of cause of action.

Further, a complainant/opposite party can present his case on his own without the help of a lawyer. The Consumer Protection (Amendment) Act, 2002 has increased the claim amount at different levels as,

 National commission - over Rs. 1 crore State commission- over Rs 20 lakhs upto Rs. 1 crore-    District forum - upto Rs. 20 lakhs

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DISTRICT FORUMThis shall consists of: A person who is, or has been or is qualified to be

a District Judge, who shall be its president Two other members who shall be persons of

ability, integrity and standing and have adequate knowledge or experience of or shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, one of whom shall be a woman.

Jurisdiction of District Forum The District Forum shall be jurisdiction to

entertain complaints where the value of goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs complaint may be filled with a District Forum by:

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The consumer to whom such service is provided or is agreed to be provided.

Any recognized consumer association, whether the consumer to whom the service is provided or is agreed to' be provided is a number of such association or not

One or more consumer, where there are numerous consumers having the same interest, with the permission of the district forum, on behalf of, or for the benefit of, all consumers so interested

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STATE COMMISSION

It shall consists of:1.A person who is or has been judge of a High Court,

appointed by the State Government, who shall be its President

2.Two other members with qualifications and experience (as for District Forum) within the State.

 Jurisdiction of State Commission The State Commission shall be jurisdiction to

entertain complaints where the value of goods or services and the compensation, if any, claimed is between rupees twenty lakhs and rupees one crore.

Revision, petitions against the District Forum.

 

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NATIONAL COMMISSIONThis shall consists of: A person who is or has been a judge of the Supreme

Court to be appointed by the Central Government who shall be its President.(Appointment under this clause shall be made after consultation with the Chief Justice of India).

Four other members (qualification: As for District Forum/State Commission), one of whom shall be a woman

The National Commission shall have jurisdiction:1.To entertain Complaints where the {value of goods

services &compensation if any, claimed exceeds rupees one crore; and

Appeals against the orders if any State Commission2.To entertain revision petitions against the State

Commission

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OTHER LEGAL AVENUES AVAILABLE TO AGGRIEVEDPATIENTS

a) Medical Council of India and Dental Council of India.

b) Civil Courts.c) MRTP (Monopolies and

Restrictive Trade Practices Commission).

d) Public Interest Litigation.e) Sections of Indian Penal Code,

1860

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Medical Council of India / Dental Council of India:

The affected person can complain to the Medical Council of India / Dental Council of India or the state council.

Civil Courts: The aggrieved patients can file a case against the do

ctor for monetary compensation for which the patient has to pay court fees that depends upon the compensation sought

 The legal remedies are based on the law of Torts; Section 1 -A of the Fatal Accidents Act, 185536 and the Section 357 of Cr. PC., 197337. But to avail it, an aggrieved patient hove to wait for years and spend considerable amount of money on litigations. The civil court cases take the route of Sub Court, District Court, High Court and Supreme Court.

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Monopolies and Restrictive Trade Practices Act (MRTP), 1969

This Act is the precursor of CPA, 1986. Before the advent of CPA, this act was the only resource to consumers against the unfair trade practices. The commission that looks into the disputes brought under MRTP Act is based in New Delhi

 Public Interest Litigation (PIL) An aggrieved patient can directly

approach the High Court or the Supreme Court when his/her grievances are n9t properly redressed. PIL's are usually resorted when public health programs are not implemented properly.

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Indian Penal Code and Medical Negligence

Indian Penal Code, 1860 sections 52, 80, 81,83,88,90,91,92 304-A, 337 and338 contain the law of medical malpraxis in India.

A physician can be charged with criminal negligence when a patient dies from the effects of a drug or other kind of treatment, if it can be proved that the death was the result of malicious intention, or gross negligence.

 Before the administration of any drug or performance of an operation, the medical man" is expected to follow the accepted precautions. In such cases, the physician should be able to prove that he used

reasonable and ordinary care in the treatment of his patient to the best of his judgment. He is however, not liable for on error judgment. The law expects a duly qualified physician to use that degree of skill and care which an average man of his qualifications ought to have, and does not expect him to bring the highest possible degree of skill in the treatment of his patients, or to be able to guarantee cures.

The Indian courts have been very careful not to hold qualified physicians criminality (instances of quacks for criminal negligence are there) liable for  patients deaths that are the result of a mere mistake of judgment in the selection and application of remedies and when the death resulted merely from on error of judgment or an inadvertent death

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DO’S FOR

DOCTORS

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DO’S FOR DOCTORS

Mention your qualifications/ training/ experience/ designation on the prescription

Always mention date and timing of the consultation.Mention age and sex of the patient.

Listen attentively. Look carefully. Ask questions intelligently

Always face the patient. Do not stare.

In case you have been distracted/ inattentive during the history taking, ask the patient/ attendant to start ell over again.

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Mention "diagnosis under review” until the diagnosis is finally settled

Record history of drug allergy

Give instruction to the patient in comprehensible terms,

Always advice the patient not to stop taking a drug suddenly,

Mention where the patient should contactin case of your non-availability/ emergency

If the patient/ attendants are erring on any count make a note of it or seek written refusal preferably in local language with proper witness.

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Update your knowledge and skill from time to time

Always obtain a legally valid consent before undertaking surgical diagnostic procedure

Always rule out pregnancy before subjecting the uterus to X-ray.Always read reports carefully and interpret the results 

Mention if patient/ attendant is under effect of alcohol/ drugs

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WHILE ADMINISTERING ON INJECTION /DRUG ALWAYS

CHECK:

Name the drug Expiry date Reconfirm route of

administration Rate of administration Disposable syringe and needle

is used

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DON’TS FOR

DOCTORS

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Don't prescribe without examining the patient, even if he is a close friend or relative

Never examine a female patient without presence of female nurse/attendant

Do not permit considerations of religion, nationality, race, party, politics or social standing to intervene between you and your patient

Don't smoke while examining a patient Don't examine a patient when you are sick, ex

hauster, or under influence of alcohol Don’t' prescribe a drug pr indulge in a

procedure of you cannot justify its indication Don't refuse if the patient/ attendants want to

leave against medical advice.  Don't deny medical care to a patient with HIV i

nfection/ AIDS. Observe all necessary precautions

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PREVENTIVE

MEASURES

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1.True and MCI / DCI approved qualification Training & experience of recognized centers are the primar

y safeguards against any litigation. The prescription heads, signboards and advertisements should mention the actual facilities available Refrain from claims of guarantee of results.

2.Communication / Interpersonal behavior  This is the key to doctor-patient relationship. Increasing

crowds of  patients and improper communication to patient about diagnostics and treatment procedures, complications and claims of guaranteed success are main reasons for patient dissatisfaction. So it is desirable for us to give our behavior a human face with a sympathetic attitude. We must answer all queries of the patients/relative without getting irritated and patiently. 

The right of patient/relatives to seek explanation about the bill should not be denied. The whole system of medical establishment should be made courteous, and polite. Special training should be imported to the staff about dealing with patients/relatives.

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 3. Academic & technical up gradation To keep pace with fast changing scenario of

technical advancement, one should regularly attend continuing education programs, workshops and other academic sessions and should also organize workshops to upgrade the auxiliaries.

4.Medical/dental ethics and laws A through knowledge of ethics and laws is

essential for all medical professionals. This helps in improving/correcting the practice standards. Feedback from patients about the setup, staff, charges etc, will give an idea about further improvement/ improvisation. Proper documentation is also an important factor

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5. Prevention by professional Indemnity (Insurance cover)

Professional indemnity insurance is a tool, which not only meets the claim of compensation awarded against doctor/hospital but also gives a sense of mental security that even if same negligence is proved the insurance company will take care of it. The insurance companies not only pay the compensation to the other party but also arranges for legal help from advocates.

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CONCLUSION

After the Consumer Protection Act, 1986, came into effect, a number of  patients have filed cases against doctors. Although, no human being is perfect and even the most renowned specialist could make a mistake in detecting or diagnosing the' true" nature of a disease, the doctor/ dental surgeon can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care.