Friday 26 November 2010

Doctor as expert witness

All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.
--------

General preparation.

Ordinarily, the selection of the plaintiff's expert is made well in advance of trial. Ideally, he or she has had an opportunity to review all pertinent medical facts, and has been able to discuss them at length with counsel. The witness, if he or she is not experienced at testifying, should be told to not be embarrassed about this preparation, and that if the subject of lengthy pretrial discussions with counsel is raised by the opponent during cross-examination, to not hesitate to admit to such discussions.

If a physician is testifying for us as an expert for the first time, we provide him or her with a copy of the following instructions.

THE DOCTOR AS AN EXPERT WITNESS

We hope that some of the following suggestions may be of assistance to you in testifying as an expert witness and clarify any questions you might have.

A. REQUIREMENT OF "MEDICAL PROBABILITY"

1. The law requires that a medical expert give an opinion based only upon "reasonable medical certainty" or "reasonable medical probability." It is important to note that the legal definition of these phrases is different than the medical definition.

2. In law the two phrases are identical in meaning. The legal definition of the two phrases is simply that the doctor must feel that the opinion is more likely than not accurate. For example, if the doctor is asked, based upon the reasonable medical certainty, whether the injuries were the result of the accident, the doctor need only feel that the accident was "more likely than not" the cause of the injury claimed in order to answer "yes."

3. The law makes a legal distinction between "possibility" and "probability." Opinions based upon possibility are not necessarily admissible. Therefore, if the doctor uses any of the following phrases in connection with his or her opinion, such testimony may be stricken by the judge:

(1) It "might be" true.
(2) It "is possible."
(3) It "might have" that effect.
(4) It "could have" that effect.

4. While there must be more than a bare possibility, the law does recognize that a degree of uncertainty is present in almost every medical opinion. Our court has said: "It is consistent for a doctor to admit an element of speculation and still be convinced that an accident is more likely than not the cause of the injury." Also, "circumstantial evidence" is usable.

B. TESTIMONY REGARDING HISTORY OF PATIENT

1. The law allows a doctor who sees a patient for the purpose of examining or treating the patient to tell the jury what history the patient gave and to relate any subjective complaints or findings of the patient.

C. EXPLAINING MEDICAL TERMS

1. It is important that the medical expert explain the use of medical terminology, like "loss of lordosis" or "scoliosis," as these things are foreign to the knowledge of the jury.

D. PROOF OF MEDICAL NEGLIGENCE

1. In a medical negligence case, the law requires the plaintiff to show the following things in order to recover a verdict:

(1) That there is a standard of care and skill expected of the average medical practitioner acting under the circumstances involved in the case.

(2) That the defendant physician failed to meet this established standard of care applicable.

(3) That the defendant physician's failure to meet this standard of care caused the injury to the patient.

(4) Application of the doctrine of res ipsa loquitur ("the thing speaks for itself").

E. HYPOTHETICAL QUESTIONS

1. The law requires that a physician who does not have personal knowledge regarding the patient or the occurrence must give his or her opinions by hypothetical questions. A hypothetical question is one that asks the doctor to assume certain hypothetical facts and express an opinion based upon those facts contained in the question without specifically referring to a particular patient.

2. The law requires, with regard to answering hypothetical questions, that:

(1) The witness base his or her answer on the facts contained in the hypothetical question.

CROSS-EXAMINATION OF THE MEDICAL EXPERT

A. "YES" AND "NO" QUESTIONS

1. If a question is phrased so that only a yes or no answer is expected, the witness must answer the question but has the right to explain the answer after answering. If the medical expert feels that he or she cannot answer a question yes or no, the witness has a right to respond that the question cannot be answered yes or no. If the witness feels a yes or no answer requires an explanation, the witness has the right to ask the judge whether he or she might explain.

B. ATTACK ON QUALIFICATIONS

1. Defense attorneys will sometimes attack the medical expert's qualifications to offer an opinion or to treat a particular type of medical problem. Questions suggesting that a specialist in the field would be in better position to treat the patient or give an opinion on the matter are not uncommon. The law, however, does not make a distinction as to the qualifications of an expert physician based upon medical specialties. Experience and training carry great weight as to the qualifications of a witness.

C. ATTACK THROUGH BOOKS OR ARTICLES

1. Some attorneys may use medical books or articles in an attempt to contradict the testimony of the expert physician. The approach is to ask whether the witness agrees with the statement found in some prestigious medical literature. The statement, of course, contradicts the previous testimony of the witness.

2. Remember that before this procedure can be used, the medical expert must recognize the book as authoritative in its field or a standard text in the medical field. If the medical expert does not so recognize the book or article, the cross-examining lawyer may not read from it. Only if the medical expert recognizes the book or article as authoritative in the field and "relies" upon it should he or she so admit it.

3. Even so, the medical expert has the privilege of disagreeing with the opinions of the most eminent specialists, particularly where the witness is referring to a specific patient about whom the witness has a great deal of information, and the book or article is speaking in generalities.

D. ATTACK BASED ON PERSONAL INTEREST IN CASE

1. On some occasions the doctor may be attacked for being personally interested in a patient who has been a patient of many years standing. The best rule is to answer the question fully and frankly since sincere, frank testimony registers with the jury.

2. On some occasions the doctor may be questioned as to an interest in the case if the patient's bill has not been paid; the implication being that the doctor is assisting the patient to get a recovery in order to see that the bill gets paid. Even though the question is insulting, the doctor should answer forthright and calmly.

3. The doctor may be asked about his or her fee for testifying in court with the implication that the doctor is a "paid witness." A reasonable answer is that you intend to bill based upon the amount of time involved in testifying as an expert in the case. No jury is going to consider that improper unless the amount is excessive.

E. FLATTERY TECHNIQUE

1. Many lawyers attempt to mitigate the effect of the injuries by what is called the "flattery technique." Such questions as "Doctor, you obtained a marvelous result with regard to your treatment" and the like are used. Keep in mind that the purpose of such questioning is to mitigate the extent of injuries. Also remember that at times a good functional result is obtained but yet serious injuries or disability remain.

F. "IT IS TOO EARLY TO TELL" TECHNIQUE

1. Another common technique on cross-examination is to suggest that opinions regarding the future are speculative because it is too early to tell. Suggestions that there will be improvements are likewise made. The questions are always framed in terms of 100% certainty. For example, "Doctor, are you 100% certain that this patient will not make some improvement?" "Isn't it possible, doctor, that there will be improvement?"

2. Obviously, no one can predict the future with 100% accuracy, but the law does not require such a test. The test is whether it is "more likely than not" in the doctor's opinion that these conditions will continue to exist. On the other hand, if the question can be answered with 100% certainty, be sure to give that answer.

G. ATTACKING THE DOCTOR'S OPINION GENERALLY

1. The main attack on cross-examination will be the defense attorney's attempt to quarrel with the diagnosis and treatment. There are various ways of doing that. Some of the most familiar are:

(1) The doctor based the diagnosis on purely subjective complaints.

(2) The doctor didn't have the complete and accurate case history.

(3) The doctor didn't know that this plaintiff once had a prior injury.

(4) The plaintiff could be feigning or malingering and the doctor did not give any tests to rule out malingering.

2. The defense attorney's approach also may be that the symptoms are due to causes other than medical negligence or that some disease syndrome is giving rise to the various effects.

H. ATTACKING THE HYPOTHETICAL ANSWER

1. If the hypothetical answer has been given, several well-known cross- examination techniques will probably be used.

These are:

(1) Two Schools of Thought. The suggestion is made that there is no real uniform view on the particular matter but that there are, in fact, two substantial schools of thought in medicine on the subject. If this is true, there is no true standard of care and there can be no liability under such circumstances. A similar question asked is "Isn't there a 'respectable' minority" who would follow the actions that the defendant physician followed in this case?"

(2) Matter of Judgment. The approach here is to suggest that medicine is not an exact science and there is much judgment involved in treatment; that the defendant doctor's actions were simply a matter of judgment on his or her part. The suggestion is that it falls in the gray area of judgment where there are no true standards as to what ought to be done.

(3) Not What the Witness Would Have Done. Another attempt is to show that the witness is simply saying that he or she personally would not have done what this defendant doctor would have done. Again this is an attempt to show that there are no real standards involved, but that simply the doctor personally disagrees. The test is whether the standards of medicine in that area are contrary to the actions of the defendant doctor, not what the personal approach of the witness might have been.

(4) Attacking Assumptions Made. Here the approach is to show that the witness has answered the question based solely upon the facts assumed in the question. Therefore, if any of the facts are incorrect, the doctor's whole opinion must be incorrect. The cross-examiner then proceeds to attempt to show certain facts that have been assumed are not really accurate. The witness must be careful in answering this question to be sure that the specific fact referred to is a crucial fact that might change the opinion if it were different.

(5) Different Assumptions. The cross-examiner will invariably ask the witness to assume different facts than were originally contained in the hypothetical question and to express an opinion. This is permissible and the purpose is that the cross-examiner will assume all of the facts favorable to his or her case and ask the doctor to express an opinion. The doctor should be prepared to express opinions based upon facts favorable to the plaintiff and to express opinions based upon facts favorable to the defendant. Particular attention must be paid to the facts that the witness is being asked to assume however.

(6) Even if Due Care Same Result. Another approach commonly used is to ask whether it is not true that even where due care and skill is being exercised do not these results sometimes occur. The purpose of this question is to show that "it was just one of those things."

MISCELLANEOUS POINTS

1. UNDERSTAND THE QUESTION before you attempt to give an answer. You can't possibly give a truthful and accurate answer unless you understand the question. If you don't understand, ask the lawyer to repeat it. Keep a sharp lookout for questions with double meaning and questions that assume you have testified to a fact when you have not done so.

2. DO NOT LOOK AT THE LAWYER FOR HELP when you are on the stand. You are on your own. You will not get any help from the judge either. If you look at the lawyer for your side when a question is asked on cross- examination or his or her approval after answering a question, the jury is bound to notice it, and it will create a bad impression.

3. DO NOT FENCE OR ARGUE WITH THE LAWYER on the other side. The lawyer has a right to question you, and if you engage in smart talk or give evasive answers, the judge may reprimand you. Don't answer a question with a question unless the question you are asked is not clear.

4. DO NOT LOSE YOUR TEMPER no matter how hard you are pressed. Lose your temper and you may lose the case. If you lose your temper, you have played right into the hands of the other side.

5. BE COURTEOUS. Being courteous is one of the best ways to make a good impression on the court and jury. Be sure to answer, "Yes, sir" and "No, sir" and to address the judge as "Your Honor."

6. IF ASKED WHETHER you have talked to the lawyer on your side, or to an investigator, admit it freely. Remember you are not getting paid for your testimony, you are being reimbursed for the time you lose and your expenses.

7. DO NOT BE AFRAID to look the jury in the eye and tell the story. Jurors are naturally sympathetic and want to hear what you have to say. Look at them most of the time and speak to them frankly and openly as you would to a friend or neighbor.

8. GIVE A POSITIVE ANSWER when you can. If you were there and know what happened or didn't happen, don't be afraid to "swear" to it. You were "sworn" to tell the truth when you took the stand.

9. UNDER THE LAW this case must be tried without the jury being advised as to whether any party is covered by liability insurance. Therefore, do not mention insurance in any way. Do not use the words "insurance," "insurance agent," "insurance adjuster," "insurance investigator," or any similar words, and do not identify any person as an "adjuster." All of the attorneys know about this rule and they will not ask you any questions that require you to violate the law in giving your answer.

-----

Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
http://www.michie.com
All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.
--------

General preparation.

Ordinarily, the selection of the plaintiff's expert is made well in advance of trial. Ideally, he or she has had an opportunity to review all pertinent medical facts, and has been able to discuss them at length with counsel. The witness, if he or she is not experienced at testifying, should be told to not be embarrassed about this preparation, and that if the subject of lengthy pretrial discussions with counsel is raised by the opponent during cross-examination, to not hesitate to admit to such discussions.

If a physician is testifying for us as an expert for the first time, we provide him or her with a copy of the following instructions.

THE DOCTOR AS AN EXPERT WITNESS

We hope that some of the following suggestions may be of assistance to you in testifying as an expert witness and clarify any questions you might have.

A. REQUIREMENT OF "MEDICAL PROBABILITY"

1. The law requires that a medical expert give an opinion based only upon "reasonable medical certainty" or "reasonable medical probability." It is important to note that the legal definition of these phrases is different than the medical definition.

2. In law the two phrases are identical in meaning. The legal definition of the two phrases is simply that the doctor must feel that the opinion is more likely than not accurate. For example, if the doctor is asked, based upon the reasonable medical certainty, whether the injuries were the result of the accident, the doctor need only feel that the accident was "more likely than not" the cause of the injury claimed in order to answer "yes."

3. The law makes a legal distinction between "possibility" and "probability." Opinions based upon possibility are not necessarily admissible. Therefore, if the doctor uses any of the following phrases in connection with his or her opinion, such testimony may be stricken by the judge:

(1) It "might be" true.
(2) It "is possible."
(3) It "might have" that effect.
(4) It "could have" that effect.

4. While there must be more than a bare possibility, the law does recognize that a degree of uncertainty is present in almost every medical opinion. Our court has said: "It is consistent for a doctor to admit an element of speculation and still be convinced that an accident is more likely than not the cause of the injury." Also, "circumstantial evidence" is usable.

B. TESTIMONY REGARDING HISTORY OF PATIENT

1. The law allows a doctor who sees a patient for the purpose of examining or treating the patient to tell the jury what history the patient gave and to relate any subjective complaints or findings of the patient.

C. EXPLAINING MEDICAL TERMS

1. It is important that the medical expert explain the use of medical terminology, like "loss of lordosis" or "scoliosis," as these things are foreign to the knowledge of the jury.

D. PROOF OF MEDICAL NEGLIGENCE

1. In a medical negligence case, the law requires the plaintiff to show the following things in order to recover a verdict:

(1) That there is a standard of care and skill expected of the average medical practitioner acting under the circumstances involved in the case.

(2) That the defendant physician failed to meet this established standard of care applicable.

(3) That the defendant physician's failure to meet this standard of care caused the injury to the patient.

(4) Application of the doctrine of res ipsa loquitur ("the thing speaks for itself").

E. HYPOTHETICAL QUESTIONS

1. The law requires that a physician who does not have personal knowledge regarding the patient or the occurrence must give his or her opinions by hypothetical questions. A hypothetical question is one that asks the doctor to assume certain hypothetical facts and express an opinion based upon those facts contained in the question without specifically referring to a particular patient.

2. The law requires, with regard to answering hypothetical questions, that:

(1) The witness base his or her answer on the facts contained in the hypothetical question.

CROSS-EXAMINATION OF THE MEDICAL EXPERT

A. "YES" AND "NO" QUESTIONS

1. If a question is phrased so that only a yes or no answer is expected, the witness must answer the question but has the right to explain the answer after answering. If the medical expert feels that he or she cannot answer a question yes or no, the witness has a right to respond that the question cannot be answered yes or no. If the witness feels a yes or no answer requires an explanation, the witness has the right to ask the judge whether he or she might explain.

B. ATTACK ON QUALIFICATIONS

1. Defense attorneys will sometimes attack the medical expert's qualifications to offer an opinion or to treat a particular type of medical problem. Questions suggesting that a specialist in the field would be in better position to treat the patient or give an opinion on the matter are not uncommon. The law, however, does not make a distinction as to the qualifications of an expert physician based upon medical specialties. Experience and training carry great weight as to the qualifications of a witness.

C. ATTACK THROUGH BOOKS OR ARTICLES

1. Some attorneys may use medical books or articles in an attempt to contradict the testimony of the expert physician. The approach is to ask whether the witness agrees with the statement found in some prestigious medical literature. The statement, of course, contradicts the previous testimony of the witness.

2. Remember that before this procedure can be used, the medical expert must recognize the book as authoritative in its field or a standard text in the medical field. If the medical expert does not so recognize the book or article, the cross-examining lawyer may not read from it. Only if the medical expert recognizes the book or article as authoritative in the field and "relies" upon it should he or she so admit it.

3. Even so, the medical expert has the privilege of disagreeing with the opinions of the most eminent specialists, particularly where the witness is referring to a specific patient about whom the witness has a great deal of information, and the book or article is speaking in generalities.

D. ATTACK BASED ON PERSONAL INTEREST IN CASE

1. On some occasions the doctor may be attacked for being personally interested in a patient who has been a patient of many years standing. The best rule is to answer the question fully and frankly since sincere, frank testimony registers with the jury.

2. On some occasions the doctor may be questioned as to an interest in the case if the patient's bill has not been paid; the implication being that the doctor is assisting the patient to get a recovery in order to see that the bill gets paid. Even though the question is insulting, the doctor should answer forthright and calmly.

3. The doctor may be asked about his or her fee for testifying in court with the implication that the doctor is a "paid witness." A reasonable answer is that you intend to bill based upon the amount of time involved in testifying as an expert in the case. No jury is going to consider that improper unless the amount is excessive.

E. FLATTERY TECHNIQUE

1. Many lawyers attempt to mitigate the effect of the injuries by what is called the "flattery technique." Such questions as "Doctor, you obtained a marvelous result with regard to your treatment" and the like are used. Keep in mind that the purpose of such questioning is to mitigate the extent of injuries. Also remember that at times a good functional result is obtained but yet serious injuries or disability remain.

F. "IT IS TOO EARLY TO TELL" TECHNIQUE

1. Another common technique on cross-examination is to suggest that opinions regarding the future are speculative because it is too early to tell. Suggestions that there will be improvements are likewise made. The questions are always framed in terms of 100% certainty. For example, "Doctor, are you 100% certain that this patient will not make some improvement?" "Isn't it possible, doctor, that there will be improvement?"

2. Obviously, no one can predict the future with 100% accuracy, but the law does not require such a test. The test is whether it is "more likely than not" in the doctor's opinion that these conditions will continue to exist. On the other hand, if the question can be answered with 100% certainty, be sure to give that answer.

G. ATTACKING THE DOCTOR'S OPINION GENERALLY

1. The main attack on cross-examination will be the defense attorney's attempt to quarrel with the diagnosis and treatment. There are various ways of doing that. Some of the most familiar are:

(1) The doctor based the diagnosis on purely subjective complaints.

(2) The doctor didn't have the complete and accurate case history.

(3) The doctor didn't know that this plaintiff once had a prior injury.

(4) The plaintiff could be feigning or malingering and the doctor did not give any tests to rule out malingering.

2. The defense attorney's approach also may be that the symptoms are due to causes other than medical negligence or that some disease syndrome is giving rise to the various effects.

H. ATTACKING THE HYPOTHETICAL ANSWER

1. If the hypothetical answer has been given, several well-known cross- examination techniques will probably be used.

These are:

(1) Two Schools of Thought. The suggestion is made that there is no real uniform view on the particular matter but that there are, in fact, two substantial schools of thought in medicine on the subject. If this is true, there is no true standard of care and there can be no liability under such circumstances. A similar question asked is "Isn't there a 'respectable' minority" who would follow the actions that the defendant physician followed in this case?"

(2) Matter of Judgment. The approach here is to suggest that medicine is not an exact science and there is much judgment involved in treatment; that the defendant doctor's actions were simply a matter of judgment on his or her part. The suggestion is that it falls in the gray area of judgment where there are no true standards as to what ought to be done.

(3) Not What the Witness Would Have Done. Another attempt is to show that the witness is simply saying that he or she personally would not have done what this defendant doctor would have done. Again this is an attempt to show that there are no real standards involved, but that simply the doctor personally disagrees. The test is whether the standards of medicine in that area are contrary to the actions of the defendant doctor, not what the personal approach of the witness might have been.

(4) Attacking Assumptions Made. Here the approach is to show that the witness has answered the question based solely upon the facts assumed in the question. Therefore, if any of the facts are incorrect, the doctor's whole opinion must be incorrect. The cross-examiner then proceeds to attempt to show certain facts that have been assumed are not really accurate. The witness must be careful in answering this question to be sure that the specific fact referred to is a crucial fact that might change the opinion if it were different.

(5) Different Assumptions. The cross-examiner will invariably ask the witness to assume different facts than were originally contained in the hypothetical question and to express an opinion. This is permissible and the purpose is that the cross-examiner will assume all of the facts favorable to his or her case and ask the doctor to express an opinion. The doctor should be prepared to express opinions based upon facts favorable to the plaintiff and to express opinions based upon facts favorable to the defendant. Particular attention must be paid to the facts that the witness is being asked to assume however.

(6) Even if Due Care Same Result. Another approach commonly used is to ask whether it is not true that even where due care and skill is being exercised do not these results sometimes occur. The purpose of this question is to show that "it was just one of those things."

MISCELLANEOUS POINTS

1. UNDERSTAND THE QUESTION before you attempt to give an answer. You can't possibly give a truthful and accurate answer unless you understand the question. If you don't understand, ask the lawyer to repeat it. Keep a sharp lookout for questions with double meaning and questions that assume you have testified to a fact when you have not done so.

2. DO NOT LOOK AT THE LAWYER FOR HELP when you are on the stand. You are on your own. You will not get any help from the judge either. If you look at the lawyer for your side when a question is asked on cross- examination or his or her approval after answering a question, the jury is bound to notice it, and it will create a bad impression.

3. DO NOT FENCE OR ARGUE WITH THE LAWYER on the other side. The lawyer has a right to question you, and if you engage in smart talk or give evasive answers, the judge may reprimand you. Don't answer a question with a question unless the question you are asked is not clear.

4. DO NOT LOSE YOUR TEMPER no matter how hard you are pressed. Lose your temper and you may lose the case. If you lose your temper, you have played right into the hands of the other side.

5. BE COURTEOUS. Being courteous is one of the best ways to make a good impression on the court and jury. Be sure to answer, "Yes, sir" and "No, sir" and to address the judge as "Your Honor."

6. IF ASKED WHETHER you have talked to the lawyer on your side, or to an investigator, admit it freely. Remember you are not getting paid for your testimony, you are being reimbursed for the time you lose and your expenses.

7. DO NOT BE AFRAID to look the jury in the eye and tell the story. Jurors are naturally sympathetic and want to hear what you have to say. Look at them most of the time and speak to them frankly and openly as you would to a friend or neighbor.

8. GIVE A POSITIVE ANSWER when you can. If you were there and know what happened or didn't happen, don't be afraid to "swear" to it. You were "sworn" to tell the truth when you took the stand.

9. UNDER THE LAW this case must be tried without the jury being advised as to whether any party is covered by liability insurance. Therefore, do not mention insurance in any way. Do not use the words "insurance," "insurance agent," "insurance adjuster," "insurance investigator," or any similar words, and do not identify any person as an "adjuster." All of the attorneys know about this rule and they will not ask you any questions that require you to violate the law in giving your answer.

-----

http://criminaldefense.homestead.com/Experts.html


Introduction

On this web page, you'll find lots of links to web sites, some good - some not so good, with information about expert witnesses and where to find them, plus a bit about how to keep an expert's testimony understandable, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12 - Texas prosecutors' 4-star list of prosecution and defense experts with prosecution contacts), (13), (14 - a criminal lawyer's list). In these modern times, when science and technology are in full flower, it's not surprising that many criminal trials involve the examination of expert or skilled witnesses.

One cannot hope to enjoy success as a prosecutor or defender without having mastered the craft of preparing, presenting, and attacking expert testimony (1), (2), (3). The CCJA publication, Expert Witnesses in Criminal Cases, provides a more sophisticated and comprehensive understanding of the role of the expert in criminal cases that this Expert Witness web page. [Note: Read Strengthening Forensic Science in the United States: A Path Forward, the 254-page 2009 report of the National Academy of Science that gives crime labs a sickly bill of health, particularly in the areas of forensic analysis of hair, fibers, fingerprints, firearms identification, blood spatter, and bite marks. (1) You can read it for free, but if you are defending a case involving one of those areas, you might consider buying it and using it as a learned treatise to impeach the opposition's expert. See below for how to impeach using a learned treatise.]

Who is an expert?

An expert may be defined as one who has specialized knowledge by education, training, experience, or skill. (Either formal training or experience will do.)

What are some of the relevant recognized fields of scientific, technical, and other specialized knowledge, and who are some of the people who testify in court as experts?

[Note: Over 400 possible resources have been placed in ( ) in this portion of the monograph on expert witnesses. Except as noted, neither the CCJA nor myself vouches for any of these resources. They are here solely to assist prosecutors and defenders in trying to locate possible expert consultants and/or witnesses. Some of these resources are experts who have been mentioned positively in anecdotal conversations amongst defenders and prosecutors. If you are a practitioner and know of a qualified expert that should be listed or dropped from the list, drop us an e-mail with the expert's name, area of specialization, and web address.] Many categories of forensic expertise (1), (2), (3), (4) are relevant to criminal cases. They include the following:

accident & crime scene reconstruction (1), (2), (3), (4), (5), (6- accident reconstruction organization downloadable accident report forms from every state), (7 - accident), (8 - accident), (9 - accident network)
altered audio and video recordings (1), (2), (3), (4), (5), (6), (7- article)
arson (including such matters as gas/vapor flammability, fire properties, thermal stability, electrostatic properties, dust explosion hazards) (1), (2), (3), (4) , (5 - You must have this publication if you are trying an arson case or a case involving explosive; it's the Bible of the trade, the benchmark reference book -NFPA 921, Guide for Fire and Explosions Investigations 2004 Edition, book or PDF download $48; be aware, a new edition will be released in 2008), (6 - Fire and Arson Scene Investigation 2000), (7), (8 - accelerants, (9 - pro-prosecution fire investigation experts), (10a, 10b - prosecution) , (11 - pro-prosecution), (12)
audiology (1)
biometric identification
blood stain (spatter) pattern analysis (1), (2), (3), (4), (5 - Association - includes list of terminology), (6 Canada), (7), (8a, 8b, 8c - prosecution), (9 at VIFSM - prosecution), (10), (11 - Okla.), (12 - Bloodstain Evidence Institute - Professor Herbert MacDowell, Corning, NY), (13 - Miami, Fla. - prosecution), (14 - Henry Lee Institute of Forensic Science), (15)
child sexual abuse accommodation syndrome (CSAAS) (1 - NDAA slide show info), (2- info), (3 - questioned), (4), (5)
climatology and meteorology

Laws relating to Organ transplantation

Law And Medicine: An Analysis Of The Organ Transplantation Law In India.

http://www.legalserviceindia.com/article/l224-Organ-Transplantation-Law-In-India.html

The transplantation of an organ from one body to another is known as the organ transplant. The person who gives the organ is called the donor while the one who receives is called the recipient. Organ transplant is done to replace the recipient’s damaged organ with the working organ of the donor so that the recipient could function normally.

Organ Transplantation is a boon to medical industry as it has helped in saving the lives of those who would have died otherwise. There is a great need for human organs for transplantation. In fact, the need far exceeds the supply of transplantable organs. This disparity has led to the formulation of various legislations, attempting to regulate the scare resources (transplantable human organs) and to help establish an equitable system to allocate the organs where they can do the most good.

Legally, organ donation can take place from living, genetically-related individuals; from living, unrelated individuals in special circumstances where no unauthorized payment is made to the donor; or from cadavers. Live donation of a single kidney was the first done in 1954, but live donation of parts of other organs is a relatively recent innovation in the 1990s.

To date the major source of organs and tissues in the West has been from cadaveric donors. Living tissue deteriorates rapidly when it loses its blood supply, and organs need to be cooled and transported for implantation into the recipient within a limited number of hours. Short transfer time, entailing removal of organs from ‘beating heart’ donors, was made possible by the acceptance of ‘brain stem death’ as death.

Worldwide, the demand for organs is growing, as the supply of organs and tissues for transplantation has not kept pace with demand. In the UK only approximately 900 individuals become organ donors each year, while over 6000 people are waiting for suitable organs. In the US much the same situation exists, with 70 000 presently on the waiting list and only approximately 5500 cadaveric donors per year.

There are several reasons for the shortage of organs. Perhaps the most common reason is that people are hesitant to donate organs. There are other reasons as well: for example, physicians may neglect to inquire of family members whether they would consent to donating organs when their loved one dies. In other cases, the deceased's wishes to donate his or her organs may not be known by those in the position to act on those wishes.

Presently three major legal frameworks govern the donation of organs worldwide. The UK, along with a number of European countries, e.g. Germany and Italy, and Canada, Australia, and New Zealand have ‘opting-in’ systems. This means that the person in lawful possession of the body may authorize the removal of organs and tissues. In practice donation is usually requested from the next-of-kin of the deceased. Many other countries, including e.g. Austria, Belgium, and Singapore, have introduced ‘opt-out’ or ‘presumed consent’ systems that assume individuals have granted permission for their organs to be donated, unless they specify otherwise, in advance of their death. ‘Required request’ or routine enquiry of the next-of-kin of a potential donor, forms part of state law in the US. It provides for hospitals that fail to adopt ‘required request’ polices to be denied support from healthcare funding agencies.

WHO has now approved organ transplantation as a well established therapy.
A Harvard Medical School committee made a historic proposal in 1968, recommending the criteria of death based on brain activity. In 1976 the Royal College of the UK published a comprehensive code for determination of 'Brain Death'. Now most countries, including India in 1994, redefine death as cessation of brain stem activity and organs can legally be removed after brain death.
In a bid to understand various organ donation policies prevailing in other countries of the world a team of experts headed by R.K.Srivastava, the Director General of Health Services made a visit to all the major countries and noted that most of the countries have adopted the presumed consent method, where the person who is brain dead is considered to have agreed to donate the organs. In other cases, family of the donor holds the right to give the consent.

To attempt to overcome the uncontrollable trade in organs the Indian parliament passed a bill in 1994, in keeping with the WHO guiding principles, prohibiting commercial dealings. There are restrictions for removal and retrieval of human organs and also regulations of hospitals involved to ensure transparency by all concerned. The aim of the Transplantation of Human Organs Act is “to provide for the regulation of removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs”.

The passing of Transplantation of Human Organ Act heralded a new era in Indian medicine. This legislation was written on similar likes as the UK Transplant Act. The essence of this legislation was threefold:
1. To accept brain death as also a definition of death.
2. To stop commercial dealing in organs
3. To define the first relative (father, mother, brother, sister, son, daughter and wife) who could donate organs without permission from the government.

Organ transplant law does not allow exchange of money between the donor and the recipient. According to the Act, the unrelated donor has to file an affidavit in the court of a magistrate stating that the organ is being donated out of affection. After which the donor has to undergo number of tests before the actual transplant takes place. The Authorization Committee set up for the purpose ensures that all the documents required under the act have been supplied. If it is found that the money has been exchanged in the process then both the recipient as well as the donor are considered as prime offenders under the law.

According to the Indian law, organ sales are banned and therefore no foreigner can get a local donor. Human organ transplant laws are very strict in India and the penalty incurred for organ trade is also very high.

THOA limits live transplants to three categories: relatives by blood, spouses, and those who donated “out of affection”. State authorisation committees are meant to scrutinize all applications for unrelated transplants. Hospitals conducting transplants are supposed to be registered with committees which are also supposed to monitor their functioning.

However, the practice of medicine is largely unregulated here and there are numerous problems regarding proper implementation of the program. Medical councils and organizations have played a passive role on ethical issues. They have failed to make their stand public or take action even in obvious malpractice.

Although the press has been publishing explicit details on rackets in kidney transplantation in various cities no medical body has thought it fit to even conduct an investigation into them.

State medical councils have suo moto powers of investigation. These have never been invoked. The councils have also turned a blind eye to complaints lodged with them.

For instance, the Karnataka Medical Council, admitted that complaints against the accused in the Bangalore scam in 1993. All that the council had done was to ‘note’ that the behaviour of the doctors who appeared before them was ‘suspicious’. With a population that is largely illiterate and gullible, such attitudes by disciplinary agencies have nurtured a fertile ground for racketeering.

Also, the diagnosis of brain death is made in ICUs where facilities exist for sustaining the other organ systems of a brain dead patient. Such ICUs are few and are commonly located in big metropolitan hospitals. They are overburdened, understaffed and lack a central command structure. Brain dead patients have traditionally been given low priority in ICUs and treated with benign neglect.

When such patients become donors, they require the same attention as that given to any critically ill patient. This demands a major attitudinal change and could be resented by an already overburdened staff.

The act of obtaining consent is also a hindrance towards successful running of the program. The relatives of the patient are not very forthcoming, and the doctors not motivated enough. Patients may lack relatives or may not have them in attendance when the diagnosis of brain death is made.

In a country where monetary and political considerations are acquiring an ominous hold on the behaviour of the medical profession, the scope for unethical acts in the transplant process is fearsome. In a private sector, where market values and profit making have reached grotesque levels, there could be havoc in a field where cash benefits can be astronomical.

The overall health allocation in our budget is one of the lowest in developing countries. There is scope for an increase in health funding. Resources for advanced medicine need not be provided at the cost of primary care if the state ensures a proper balance. Thousands with endstage disease can be provided a new lease of life through cadaveric transplant programs. Hitherto, only the very rich benefited from transplantation- of organs by travelling abroad and spending large sums. We should make organ transplants affordable by the average citizen in our public institutions.

In various surveys conducted, it has been seen that 72% of the population were willing to donate eyes, but less than 50% were willing to consider solid organ donation. 74% of Hindus, 72% Christians, 58% Muslims were willing to consider organ donation; however the concept of brain death was new to most of the people surveyed. An audit of 159 brain death patients showed that 30 or 19% of the relatives donated of the organs of their loved ones.

In the last 6 years 35 hospitals in the country from various regions have undertaken cadaver transplants. Chennai has done the maximum number of cadaver transplants in the country. However most of them lacked motivated medical or social workers who could be trained to speak to the relatives in brain death situations. In event of the donor not being a first relative an approval had to be obtained by a government appointed authorization committee in each state of the country.

The public attitude survey indicated a positive attitude of the people towards eye donation. After this survey a simple protocol was devised It was suggested that 'Eyes' should be requested for first and only if the relatives were willing other organs requested. The Eye donation activists of the country are already lobbying for a "required request law" in event of a death in a hospital. This is likely to be soon passed by the parliament and be enacted as a law. This same law can be extended for solid organs in a brain death situation. If this is done it can give the required boost to the program and make it obligatory for the hospitals staff to ask for organs.

A major center Sri Ramachandra Research Medical College And Research Center, undertaking cadaver transplants in the last 6 years has had a brain death conversion rate of 19% (30/159). In this institution the ICU staff have been sensitized to the issue of brain death and organ donation.

The number of fatal road traffic accidents every year in India is constantly rising and averages at about 8,500 per year. At any given time there are 8 to 10 brain dead patients in different ICU's in any major city of the country. There is hence potentially a huge pool of brain death donors available in India.

The unrelated activity is due to loop holes in the present THO Act as under the Sub Clause (3), Clause 9 of Chapter II it states: "If any donor authorizes the removal of any of his human organs before his death under sub-section (1) of section 3 for transplantation into the body of such recipient, not being a near relative as is specified by the donor, by reason of affection or attachment towards the recipient or for any other special reasons, such human organ shall not be removed and transplanted without the prior approval of the Authorization Committee"

It is not necessarily difficult to find an unrelated donor who suddenly develops an "affection or attachment" for the recipient provided he or she is properly rewarded. Most of the unrelated transplants are a result of the patients and clinicians using this section of the law to obtain permission from the Government to do live unrelated transplants. This aspect of the law has either to be scrapped or tightened so that only genuine cases are helped, otherwise unrelated activity will continue with the permission of government's authorization committee.

Mostly, private or non-governmental organizations have been working towards the success of the transplantation program. Among these the Initiative for Organ sharing group started by MOHAN Foundation in Tamil Nadu has shared 68 organs in the last 2 years between five hospitals. This is a encouraging start to the program. The foundation is also hoping to affiliate with other similar organization in other regions such as FORTE (Foundation for Organ Transplantation and Education) at Bangalore & ZTCC (Zonal Transplant Co-coordinating Committee) at Mumbai that have also similarly shared organs between different hospitals.

While this is true, we should be concerned that, in the 13 years since the law was passed, the Indian law has been observed more in the breach. As well documented by a series of investigations in Frontline magazine, the “affection” clause is the loophole that actually drives the entire transplant programme in the country. In state after state, authorisation committees have rejected a microscopic percentage of applications under this clause, turning a blind eye to what are obviously financial transactions. For example, the Karnataka authorisation committee approved 1,012 of the 1,017 applications it received from January 1996 to February 2002.

The industry has always had the support of those in power, and those in power have ways to get their dirty work done, as illustrated by the story of Kumar’s career. Senior Delhi police officials have confessed to picking up one of Kumar’s associates in January, but letting him free in exchange for Rs 20 lakh – handed over by Kumar himself. Further, Kumar has been running this business since 1994 at least. He was first arrested (as Santosh Raut) in 1994 along with a group of surgeons and anaesthetists for conducting kidney transplants at a nursing home in Mumbai. A government-appointed committee concluded that as many as 450 kidney transplants on foreign patients had been done in the nursing home from 1991 to 1994 though it had no license for conducting surgery. The committee noted that there were no medical records, evidence of consent or even evidence of basic medical infrastructure.

Kumar was arrested at least four times between 1994 and 2008 -- and obtained bail each time, following which he would disappear and resurface, running the same business in another part of the country.

Not one person is reported to have been prosecuted for violating THOA.

INDIA has a flourishing, and illegal, trade in human organs. And the legislation designed to prevent it is failing.

On Jan 24, police unearthed an illegal kidney transplant racket being operated from Haryana’s Gurgaon town, on the outskirts of the national capital. The people running the racket served clients from India and abroad after obtaining kidneys illegally, often under force, from poor people.

Every year, almost two lakh people in India need kidney transplants and there are only 4,000 people donating them, reveals Narendra Saini, media co-ordinator of the Indian Medical Association in Delhi. And this discrepancy in demand and supply leads to cases like the deeds of “Dr Horror” Amit Kumar, accused of running an illegal kidney racket out of Gurgaon. The incident has raised many questions, including the efficacy of the Transplantation of Human Organs Act, 1994.

Recently, a public interest litigation (PIL) was filed in the Delhi High Court, asking for exemption of dialysis kits from customs duty and making the process of kidney transplants easier and prevent illegal kidney transplants. He also demanded that the government initiate a programme for donation of organs on the lines of eye donation camps and review the 1994 Human Organ Transplantation Act. But he was asked to file a fresh petition due to some reasons.

On the eve of the World Kidney Day, the recommendations of the high court-appointed Transplant of Human Organs Act Review Committee that is awaiting implementation by the Health Ministry since three years became the topic of discussion in the Delhi High Court

Says Sanjay Ghosh, a Supreme Court lawyer, “Obtaining an organ illegally could be done in a life and death situation since ensuring that the patient lives is more important than abiding by the law.”

R.K. Sharma, secretary of the Indian Society of Nephrology in Lucknow, observes that “the government is considering second degree relatives for the donation of organs. While the current law is good, if it is made easy for people to donate organs there could be unrelated and professional donors creeping in and thus the new law would become a double-edged sword”.

“The object of the Act to prevent commercial dealing in kidneys has failed,” asserts Sardar Amjad Ali, a high court advocate in Calcutta. Ali mentions that for a non relative to donate a kidney, an authorisation committee has to approve the transplant but the supervision has been dismal, leading to a thriving kidney racket in the country.

Joymalya Bagchi, an advocate at the Calcutta High Court, indicates that a video of the consent of an individual could be made, in addition to the written statement, during donation to avoid further legal complications. “There is a lack of transparency in the current dealings that is leading to the law being broken,” he asserts.

The medical fraternity, however, says the law is too stringent for transplantation to be carried out legally all the time.

Says Narendra Saini of IMA, “The section mentioning that only close relatives can donate kidneys is too restrictive and needs to be widened. Also the provision for non relatives to donate kidneys for attachment or emotional reasons could be misused by any individual who could sell a kidney illegally.” Speaking of doctors like Amit Kumar, he says that he is not a registered medical practitioner There are quack doctors performing organ transplants in unregistered hospitals all over the country and this is the core problem with the law being bypassed.

The government is now mooting the idea of amending the Transplantation of Human Organs Act. Among the changes being considered are mandatory declaration that patients are brain dead by all intensive care units (ICU) of hospitals to help address the shortage of organs for donation in the country.

The Hon’ble High Court of Delhi in its order dated 6.9.2004 had set up a Committee to examine the provisions of Transplantation of Human Organs Act, 1994 and the Transplantation of Human Organs Rules, 1995. The report was submitted on 25.5.2005. A National Consultation was held on 18.5.2007 and the report was submitted in the second fortnight of August, 2007. The recommended changes required amendments in the Transplantation of Human Organs Act, 1994 and the Rules framed there under. These changes are intended to facilitate genuine cases, increase transparency in transplantation procedures and to provide deterrent penalties for violation of the law.

In so far as the Act is concerned, the following amendments have been proposed:
i) To empower Union Territories, specially Government of NCT of Delhi to have their own appropriate authority instead of DGHS and /or Additional DG (Hospitals).

ii) To make the punishments under the Act harsh and cognizable for the illegal transplantation activities to deter the offenders from committing this crime.

iii) To provide for registration of the centers for removal of organs from the cadavers and brain stem dead patients for harvesting of organs instead of registration of centers for transplantations only.

However, the Chief Justice of India K.G. Balakrishnan feels that there is no need to amend the Human Organ Transplantation Act, as the present law is “sufficient” to serve the cause, and they just need to be implemented properly. The comment came at a time when the health ministry was considering to bring a change in the law to curb illegal organ transplants. Experts have said that nearly 15 percent of adults in urban India are diabetic and 40 percent of them are likely to develop kidney problems, and every year over 150,000 new patients require dialysis or kidney transplant.

Therefore, in order to promote donation of organs, the government has planned to give incentives to the donor’s family like lifelong free medical check-up and care in the hospital where the organ donation took place. Besides, a customized life insurance policy of Rs 2 lakh for three years with one-time premium to be paid by the recipient in case of mortality and preferred status in organ transplant waiting list if the next-of-kin of a brain-dead donor requires a transplant in future.
To promote more brain death cadaver donation some changes are needed in Human Organ Transplantation Act such as intimation of Brain death to relatives, procedures in law to make it compulsory for the ICU staff to suggest for organ donation and request their permission for the same. In medico-legal cases-it should be made possible to under take 'post mortem' at the same time as the ' Organ retrieval' surgery. Shifting patient from one hospital for Organ donation to another for post mortem makes relatives very emotionally traumatized and delays the process of handing over the body.

It would be extremely fruitful if Grand parents are included in the near related category and if we accept the policy of presumed consent, i.e. every person dying of brain death should be presumed to have wished for organ donation until a written refusal is made by the family.

Most importantly, there is a need to spread awareness at every level. Surprisingly, Nurses and Medical students also do not know about the Act. That means that they need to be educated more about the Act, along with the rest of the population. It has been seen that the willingness to donate organs is directly proportional to the level of education, which needs to be increased.

No other field of medicine has raised so many ethical, moral, legal and social issues as has organ transplantation. At present the very term transplant is likely to conjure up an image of shady and dangerous dealings in India. If we wish to improve upon the current situation, the first step is total transparency on the part of the medical profession and open, public, debate on this and related issues. Medical professionals must set ethical guidelines and take action against violators. Representatives of the common people must be included on the committees that will oversee these operations.

We must restore organ transplantation to where it really belongs - not as an example of all that is unethical and commercial but as a modern medical advance permitting one human being to make the gift of life to another.

References:
§ The Transplantation of Human Organs Act, 1994.
§ Evans RW, Manninen DL: Transplant Proc 20: 781, 1988; Feest TG, Reid HN, Collins CH, et al: Lancet, 335:1133, 1990; Wakeford RE, Stepney R: British Journal of Surgery, 76:435, 1989
§ Cadaver Organ Donation and Transplantation in India
By: Dr.Sunil Shroff.
§ Dr. A. K. Tharien , Christian Fellowship Hospital, Tamil Nadu
Eubios Journal of Asian and International Bioethics
§ Organ and Tissue Donation for Transplantation. Edited by Chapman, Jeremy R., Wight, Celia, and Deierhoi, Mark, eds., Edward Arnold Publishers, 1997. .
§ Organ Transplantation: Meanings and Realities. Edited by Youngner, Stuart J., Stuart J., Fox, Renee C., and O'Connell, Laurence J., eds., University of Wisconsin Press, 1996. .
Ethics of organ transplantation-Sanjay Nagral
§ Dying & Death in Law & Medicine: a Forensic Primer for Health and Legal Professionals. Berger, Arthur S., Praeger, Arthur S., 1993.

Indian & Foreign Journals:
Indian Journal of Medical Ethics
Journal, Indian Medical Association.
Indian Transplant Journal , Feb-June 2003
Eubios Journal of Asian and International Bioethics 6 (1996)
Indmedica - Journal of the Academy of Hospital Administration
Indmedica - Journal of the Anatomical Society of India
Indo-Asian News Service. (IANS)

The International Code of Medical Ethics

CODE

The International Code of Medical Ethics

Duties of physicians in general
A PHYSICIAN SHALL always maintain the highest standards of professional conduct.

A PHYSICIAN SHALL not permit motives of profit to influence the free and independent exercise of professional judgement on behalf of patients.

A PHYSICIAN SHALL, in all types of medical practice, be dedicated to providing competent medical service in full technical and moral independence, with compassion and respect for human dignity.

A PHYSICIAN SHALL deal honestly with patients and colleagues, and strive to expose those physicians deficient in character or competence, or who engage in fraud or deception.

The following practices are deemed to be unethical conduct:
(a) Self advertising by physicians, unless permitted by the laws of the country and the Code of Ethics of the National Medical Association.

(b) Paying or receiving any fee or any other consideration solely to procure the referral of a patient or for prescribing or referring a patient to any source.

A PHYSICIAN SHALL respect the rights of patients, of colleagues and of other health professionals and shall safeguard patient confidences.

A PHYSICIAN SHALL act only in the patient’s interest when providing medical care which might have the effect of weakening the physical and mental condition of the patient.

A PHYSICIAN SHALL use great caution in divulging discoveries of new discoveries or new techniques or treatment through non- professional channels.

A PHYSICIAN SHALL certify only that which he has personally verified.

Duties of physicians to the sick
A PHYSICIAN SHALL always bear in mind the obligation of preserving human life.

A PHYSICIAN SHALL owe his patients complete loyalty and all the resources of his science. Whenever an examination or treatment is beyond the physician’s capacity he should summon another physician who has the necessary ability.

A PHYSICIAN SHALL preserve absolute confidentiality on all he knows about his patient even after the patient has died.

A PHYSICIAN SHALL give emergency care as a humanitarian duty unless he is assured that others care.



Duties of physicians to each other.

A PHYSICIAN SHALL behave towards his colleagues as he would have them behave towards him.

A PHYSICIAN SHALL NOT entice patients from his colleagues.

A PHYSICIAN SHALL observe the principles of The Declaration of Geneva approved by the World Medical Association.

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http://www.thehindu.com/news/national/article544767.ece?service=mobile
Medical ethics violation to be made punishable offence
NEW DELHI, August 1, 2010
Aarti Dhar

With the number of incidents related to violation of medical ethics increasing, particularly those involving clinical trials by foreign pharmaceutical companies, the Centre has now decided to bring such cases within the purview of law.

The Union Health and Family Welfare Ministry is in the process of amending the Drugs and Cosmetics Act to make violation of medical ethics an offence punishable under law.

This is likely to be done by adding a separate chapter on medical ethics in the Act, that would also prescribe punishment for such offences, Health and Family Welfare Minister Ghulam Nabi Azad told The Hindu.

At present, medical ethics violation cases, such as negligence, are dealt with under various provisions of the Indian Penal Code (IPC).

However, with the number of complaints regarding violation of medical ethics coming in from across the country, such a move has been necessitated.

Incentives

In a recent episode in Indore, doctors were accused of carrying out clinical trials for a multinational drugs company on patients without obtaining their consent, which is mandatory as per the guidelines of the Drugs Controller-General of India (DCGI). The doctors are also reported to have been given monetary incentives and free foreign trips for carrying out the trials.

Earlier, the Centre ordered suspension of clinical trials on tribal girl students in Andhra Pradesh and Gujarat, carried out by a non-governmental organisation, Path-International, for U.S-based pharmaceutical company MERCK for HPV (human papilloma virus) virus to prevent cervical cancer.

While it is believed permission had been granted for carrying out such trials, there was violation of guidelines on the ground and this became known after some girls reported adverse side-effects. A three-member committee is looking into the matter.

According to Mr. Azad, at present the Ethics Committee — whether at the national, State or hospital level — can only suspend trials in case of violations. If any doctor is directly involved in the trial, his license can be cancelled. “Law does not prescribe any punishment for this offence,'' he said.

Working group

The Board of Governors of the Medical Council of India has also set up a working group on medical ethics reforms that would recommend strictures against medical malpractices.

These would be taken into account before finalising the amendments.

Already, the Lok Sabha has passed the Clinical Establishments (Registration and Regulation Act) Bill, 2010 that makes it mandatory for all clinical establishments to provide medical care and treatment to stabilise any person in an emergency condition.

First time

Once the Bill is passed in Parliament, this will be the first time emergency medical care is made obligatory under law in the country.

Accident victims are often referred to government hospitals from private facilities to avoid legal hassles. Particularly, women are turned away from private hospitals and nursing homes at the time of delivery if they fail to deposit money in advance, Mr. Azad explained.

Registration mandatory

As per the Bill, all clinical establishments will be required to register themselves with the State Council for Clinical Establishments. These include hospitals, maternity homes, nursing homes, dispensaries, clinics and similar facilities with beds that offer diagnosis, treatment or care for illness or injury or pregnancy under any recognised system.

The legislation will help in addressing unregulated growth of the private sector, often accused of inadequate treatment, excessive use of higher technology, medical malpractices and negligence.

Legal remedies medical negligence

THE LEGAL AVENUES (other than CPA) AVAILABLE TO AGGRIEVED PATIENTS TO SUE AGAINST HEALTH PROFESSIONALS.

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

Regulation of The Practice of Medicine

a) Indian Medical Council Act,1956

Regulates the profession of Allopathic medicine by constituting Medical Council ofIndia(MCI) and the State Medical Councils.

Authorizes the Medical Council of India (MCI) to recognize the medical qualifications granted by any Authority or Institution of India or other countries.

Authorized the MCI to maintain a register of medical practitioners to be known as the Indian Medical register, which consists of the entries of all the State Registers of medical practitioners.

Empowers the State Medical Councils to punish persons who falsely claim to be registered or misuse titles and when medicine is practiced by unregistered persons, with fine or imprisonment or both.

Authorizes the MCI to prescribe standards of professional conduct and etiquette or Code of Ethics for medical practitioners. The violations of these standards constituteinfamous conduct (professional misconduct).

State Medical Councilsare empowered to take disciplinary action when prescribed standards of professionals conduct and etiquette or Code of Ethics are not observed by thedoctorsand violations of which constituteprofessional misconduct / Infamous conduct.

Under the following circumstances, a doctor can betemporarily or permanently debarredfrom practicing medicine.

Improper or indecent conduct towards the patient

Conviction in a Court of Law

Failure or dereliction of duty in givingprofessionalcertificates, reports and other documents

Contravening the Drugs and Cosmetics Act, 1940

Selling scheduled poison

Performing or abetting an illegal operation

Receiving or giving commission or using touts

Employing unqualified persons

Associations with (drug) manufacturing firms

Advertisements

Running shops (dispensing chemists) etc.

Failure to give professional service for certain things on religious grounds.

An aggrieved patient can complain to theStateCouncilsabout a registered medical practitioner about an alleged wrong committed by him. The Council initiates properhearingwhere the concerned doctor is given adequate opportunities to represent his side. If it arrives at the conclusion that the doctor has indeed committed an act, which involves an abuse of professional position that might reasonably by regarded as disgraceful or dishonourable by professional men of good repute and competence, the doctor is either given a warning notice or temporarily or permanently debars him for practicing medicine. The Council does not have any statutory powers to award anycompensationto the aggrieved patient or legal heirs.

The Indian Medical Council Act, 1956 also provides certain privileges to all the registered medical practitioners.

Rights and Privileges of Registered Medical Practitioners Conferred by the Indian Medical Council Act, 1956.

Right to choose a patient

Right to add title, descriptions of the academic qualifications to the name

Right to practice medicine

Right to dispense medicines

Right to possess and supply dangerous drugs to the patients

Right to recovery of fees

Right for appointment to public and localhospitals

Right to issue medical certificates

Right to give evidence as an expert in a Court of Law

Civil Courts

The aggrieved patients can file a case against the doctor for monetary compensation for which the patient to pay court fees that depends upon the compensation sought.

Probably, due to near acceptance of medical negligence as inevitable by the patients and their relatives or local settlements, not many cases have reached the apex court of law in the past.

The legal remedies are based on the law of Torts, Section 1-A of the Fatal Accidents Act, 185536and the Section 357 of Cr. P.C., 197337. But to avail it, an aggrieved patient have to wait for years and spend considerable amount of money on litigations.

The civil court cases take care the route of Sub-Court, District Court, High Court and Supreme Court.

Monopolies and Restrictive Trade Practices Act (MRTP), 1969

This Act is the precursor ofCPA, 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 based inNewDelhi.

Public Interest Litigation (PIL)

An aggrieved patient can directly approach the High Court or the Supreme Court when his/her grievances was not properly redressed. PILs are usually resorted when public health programmes are not implemented properly. Some of the landmark judgements on Supreme Court on health are the result of PILs.

Foot Notes

1Fatal Accidents Act, 1855
This has adopted the provisions of English Fatal Accidents Act of 1846 (re-enacted in 1976) with a little modification. This Act aims of providing compensation to the family of the deceased for loss occasioned by the death of a person caused by the actionable wrong. In fact, it does not specify its application to medical negligence cases but it is of wide import so as to apply to all such cases including road traffic accident cases. In Dr. Laxman Balkrishna Joshi v Dr. Trimbak Bapu Godhole and An0ther (AIR 1969 SC 128) and Amalgamated Coal Field Ltd. v Mst. (Chhotibai & Others (1973) ACJ 365), this Act was used to award damages to the heirs of the deceased patients.

Section 1-A of Fatal Accidents Act, 1855
Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such, as would (if death had not ensured) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action or suit for damages, not withstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

2Section 357 of Code of Criminal Procedure 4973 (Act No. 2 of 1974)

(1)When a court imposes a sentence of fine a sentence (including a sentence of death) of which fine forms a part, the court may, when passing judgment, order the whole or any part of the fine recovered to be applied.
(a)----------
(b)In the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the court recoverable by such person in a civil court;
(2)----------
(3)When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment, over the accused person to pay be way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for while the accused person has been so sentenced.


Read more:Consumer Protection Act and Medical Profession - The Legal Avenues Other Than CPA

http://www.medindia.net/indian_health_act/consumer_protection_act_and_medical_profession_the_legal_avenues_other_than_cpa.htm

Ethics

Ethics (also known as moral philosophy) is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice, etc.

The field of ethics (or moral philosophy) involves systematizing, defending, and recommending concepts of right and wrong behavior.

Refusal to treat

Can a doctor refuse to treat a patient?

Dr Devendra Gupta

In this present era of scientific development and increasing awareness regarding rights and duties of individuals throughout the world, debates are organised concerning human rights with special reference to rights of the accused, rights of the victims, rights of the women, rights of the children, rights of prisoners and so on. With consumer cases against doctors on the rise, it is time to emphasize that medical professionals who perform their duties with devotion and sincerity too have their rights. So what are his rights?

Rright to decline treatment?
Does a doctor has the right to decline treatment to patients.If yes, then under what conditions:

a) If the doctor himself is not well or free.
b) Doctor may refuse to give fresh treatment to a patient if he has had a bad experience in the past.
c) He cannot be compelled to treat a patient in odd hours. That is at hours other than those ear-marked by him for his profession.
d) There is no legal obligation to answer a call to visit the patient at his or her place of residence.
e) Doctor treats a patient in emergency on ethical grounds.. It does not mean that he has accepted the patient. He may advise that patient to go to some hospital or a specialist for further treatment.
f) If a patient does not agree with the method of treatment or fee asked, doctor may refuse to treat the patient.
g) In his honest opinion, if a doctor feels that he is not in a position to treat a patient because of non availability of certain facilities, instruments, medicines, staff etc. he may refer the patient to a suitable place.

Selection of drugs
In some diseases, more than one medicines are effective and the decisions as to which of them should be prescribed is the absolute right of the doctor. Here doctor applies his own knowledge, experience and skill, over and above giving consideration to theoretical effects of the medicine.

Selection of method
In medical science, more than one type of treatment are approved and available for a particular disease. A doctor may adopt any one of them. For example, the removal of gall bladder (cholecystectomy) can be performed through various incision, with the choice of incision depending on the doctor based on his experience. Moreover, in a surgery, from anesthesia to stitch thread, everything is to be decided by the surgeon only.

Investigation
It is not always possible for a doctor to make certain diagnosis only from clinical examination of the patient. Additional laboratory tests, X-ray, sonography etc., may be required. The doctor is the best judge to decide about number and type of investigations to be carried out.

Some doctors insist for a particular laboratory or X-ray clinic as in his opinion their reports are perfect and reliable. Of course patient might take it the other way, so a doctor may insist but should not over insist. In emergencies, the doctor has wider discretion about the treatment.

Medico-legal case
A doctor has a right to take any medical case without hesitation. At the same time, as a duty bound citizen, he is supposed to inform the police about such case as early as possible.

In the case of “Parmanand Katara” and the Union of India (1989 Supreme Court P.2039), the Supreme Court has said, “Doctors should boldly and bravely assert their ethical and legal duties and their right to carry on their profession which is their fundamental right as recognised by Article 19 of the Constitution of India. Further we are of the view that every doctor wherever he is within the territory of India should forthwith be aware of this position and therefore, we direct that this decision of ours shall be published in all journals reporting decisions of this court and adequate publicity highlighting these aspects should be given by the national media as also through the Doordarshan and the All India Radio.”

Visit
The doctor is not bound to honour every visit call, especially at odd hours. It is expected that a doctor would visit a patient, who is under his treatment and whose condition is worsening. In this sensitive matter, a doctor should take decision according to time, place and circumstances.

Medical Record
As a patient’s medical report is prepared by the doctor on his own stationary, it becomes doctor’s property. Doctor may not disclose it to the patient. If, in his opinion, the disclosure is not in patient’s benefit, he may, on the other hand, disclose the record as a whole or part of it in public interest under some statute.

Fees
The doctor has a right to recover his fees from the patient, whom he has given treatment.

Often the patient refuses to pay fees after completion of treatment and the doctor, just to recover the fees, does not discharge the patient or tries to keep some valuable property of the patient in his possession. This is a crime. The only way to recover the fees is a civil suite.

To avoid this problem, doctor should explain to the patient about approximate expenses of the treatment and may take part of it in advance and remaining in installments.

Right to delegates power
A patient may be under the treatment of a doctor, but both treatment and care is not a one man show. A doctor may need help of other doctors, nurses, technicians and other qualified staff. So the doctor has to delegate some power to other qualified persons and it doesn’t mean negligence.

To end, medical professsion is a very respectable profession. Doctors are looked upon by common man as their only hope when a person is hanging between life and death. So in such circumstances, doctors rights should be safeguarded. To have rights, doctors should also peform their professional duties with utmost sincerity and devotion upholding medical ethics.
http://www.expresshealthcaremgmt.com/20021231/focus4.shtml
Patients testing positive for HIV: ethical dilemmas in India
Sunil K. Pandya
Attitude of doctors towards such patients
Persons testing positive for infection by HIV or showing evidence of AIDS provoke revulsion and fear in medical doctors. These reactions stem from the general knowledge that the diagnosis of AIDS is akin to a death sentence and the belief that a positive HIV test is, inevitably, followed by the development of full blown AIDS. The fact that HIV is commonly contracted through sexual intercourse and anal penetration or addiction to drugs lends added reason for disgust. There is a close parallel between the behaviour of the doctor faced with a patient showing evidence of AIDS and that, till very recently, towards a patient with leprosy.

This illogical fear has made doctors lose sight of some fundamental medical principles:

1. Contracting an infection from a patient is the doctor’s occupational hazard. The logical step towards avoiding such infection is to take all the necessary precautions against transfer of infection. It is not logical to treat the patient as an untouchable.

2.HIV is a very fragile virus, vulnerable to all the commonly adopted measures for sterilisation and disinfection.

3. Transmission of HIV from patient to doctor in the course of medical examination and treatment is rare.

4. We are witness to individuals testing positive to HIV and continuing to lead normal lives without ever showing any trace of AIDS.

5.Tests for HIV are, at times, known to yield false positive results.

A new class of untouchables
For many patients, the ward of a public hospital is the last stopping place on a dismal journey of stigmatisation. Patients with AIDS are driven from their communities by fearful neighbours, pushed from one hospital to another by doctors and staff members reluctant to treat them and, finally, approaching death in the AIDS ward, left virtually to fend for themselves. AIDS patients have become India’s new untouchables to spend their lives being shunned. Like caste untouchables, patients with AIDS are supposedly protected from discrimination by laws, but statutes have counted for little. In 1994, a reporter forThe Statesmanchronicled the death of a 28 year old fruit seller, Deepak Biswas, in a Calcutta hospital ward.The Statesman’s stories told how Biswas had been left for days on sheets stained with blood and how food had been pushed at him from a distance. After he died, weighing 60 pounds, attendants left his body untouched for eight hours in the tropical heat. Finally, the hospital superintendent helped a relative lift the body into a van to be taken to the cremation ground. Later, neighbours pressed Biswas’ family to leave their home, saying they might infect the area. Biswas, typical of many AIDS patients, had been shuttled through four hospitals before arriving at the AIDS ward. At the School for Tropical Medicine, the main AIDS advisory centre for the government of West Bengal, doctors told Biswas’ relatives there was, ‘no seat’ for him. (1)

They referred him to a doctor specialising in India’s traditional herbal medicine, telling the family that in a case of incurable disease, ‘we can use any drug or any measure’.

Other cases recounted by AIDS workers include that of a patient in Madras who was being treated for fever. His doctor informed his office that he had tested positive for HIV. When he returned to work, he was kept out by the elevator operator and a door attendant. He went home and took a near fatal drug overdose.

There are also the cases of pregnant women with HIV who have gone from doctor to doctor seeking somebody to deliver their children. Here is a recent account of such practice. "A number of obstetricians will not deliver a HIV patient who comes to their private nursing home. They are afraid that if everybody comes to know that this is an HIV infected patient, they will lose their practice. Secondly, they are afraid of infecting their operation theatre, labour ward and all their staff including themselves. So they would rather say ‘No', because they are going to get the same amount of money from her (as from other patients) and run the risk themselves. So also surgeons with private nursing homes." (2)

A Calcutta haematologist, Dr. Asha Rao, tells of a 27 year old who returned home with an HIV infection recently after years of working in Bombay. As soon as his condition became known he lost his job in a Calcutta tannery. His girlfriend left him, and his father forced him out of the family home.

Making the diagnosis
We are witness to several unethical practices in checking for the presence of infection by HIV in our patients:

1. Doctors and medical institutions refuse to accept patients for investigation of therapy unless they undergo tests for infection by HIV.

2. Tests, ELISA, blot tests are ordered without the patient’s informed consent and with no attempt at explaining to the patient or the family the implications of a positive result. These steps are blatant violations of ethical norms. The General Medical Council of Great Britain has, for instance, made a specific ruling: "The Council believes that the principle (of consent to investigation) should apply generally, but that it is particularly important in the case of testing for HIV infection, not because the condition is of a different kind from other infections but because of the possible serious social and financial consequences which may ensure for the patient from the mere fact of having been tested for the condition. Only in the most exceptional circumstances, where it is not possible for the prior consent of the patient to be obtained, can testing without explicit consent be justified." (3,4)

3. The patient showing a positive result on the test is peremptorily dismissed. If admitted to hospital, he is instantly discharged. In many instances, he is told that the reason for this dismissal is the positive HIV report.

4. No attempt is made to break the news gently.

5. No attempt is made to counsel the patient and family, confirm the diagnosis by blot tests or other sophisticated means, identify the route of infection and boost the patient’s morale by telling him that come what may, the doctor is by his side to help as best as he can.

6. On the contrary, the doctor patient relationship is usually terminated abruptly on receipt of the positive report.

7. Citizens of Mumbai recall vividly the sixty year old patient at the Bombay Hospital who, when told that he had to leave the hospital as his test for HIV was positive, leaped to his death from its eighth floor (5)

Confidentiality
Respecting the patient’s privacy
Once the diagnosis of HIV infection is made in a patient admitted to hospital or nursing home, it is rapidly broadcast to all staff members. The change in their attitude towards him is immediately obvious to the patient.

Some clinics plaster difficult to miss placards on the patient’s bed informing all and sundry of the patient’s HIV status. This is especially tragic when the placard remains in place during the hours when friends and relatives visit patients.

Other clinics print in bold letters the HIV status on the cover page of the patient’s case notes, at times underlined in red.

When questioned, doctors and administrators offer the explanation that this measure is taken in order to ensure that everyone ‘takes the necessary precautions when handling the patient’.

Informing the spouse
Since the spouse may contract the disease from her infected husband, how is she to be informed of the very real danger she faces? A recent study makes the consideration of this issue of vital significance.

57% of individuals in rural South Africa would not tell their wives about their having contracted sexually transmitted disease. If infected by HIV, 66% would withhold information from their wives. 71% of men would not inform their casual partners about their HIV infection. The same study showed that a majority of women claimed a right to know if a man is infected. (6)

There is every reason to believe that a comparable study in India would show similar results. How is this problem tackled in India? There are no clear guidelines on the subject issued by any authoritative agency. Most doctors do not consider this a matter warranting their interference. HIV infection has been diagnosed and the patient sent away. There, for most, the matter ends.

A few, concerned groups, notably at the National Institute of Mental Health and Neurological Sciences, have evolved a policy. They counsel each patient known to be infected by HIV, individually. At the end of the session where the diagnosis is conveyed and advice offered on available help and treatment; he is told of the possibility of passing on the infection to his spouse. He is strongly advised to inform the spouse about his HIV status and adopt the unfailing use of a condom during every sexual act. During the next interview he is asked whether the wife has been informed. If the answer is ‘Yes’, he is asked to bring the wife along during the next interview for joint counselling. If the answer is ‘No’, without any acceptable reason (such as the wife being out of station), he is once again asked to inform the wife. This time he is also told that should he fail to do so, the doctors at the centre will disclose the information to her. (7)

This practice has international sanction. As noted by Bayer and Gostin, ‘What is crucial is the underlying ethical principle that confidentiality, while critical, is not the only ethical value. Indeed, when vulnerable unsuspecting persons are placed at risk it may be imperative to breach confidentiality. (8) They refer to the case Tarasoff v. Regents of the University of California in America in 1976, where a central legal doctrine emerged. Under certain circumstances a clinician has an affirmative duty to warn or protect unsuspecting targets of his patient’s violent intentions. Several judges in America have held it a duty of physicians to warn family members of the presence of infectious diseases in an individual. "No case to date has criticised a physician’s disclosure to make limited, appropriate disclosures of a patient’s condition under circumstances in which the patient or others were reasonably at risk but for the disclosure. The legal system appears to encourage physicians to act responsibly by making more, rather then fewer, disclosures of patient confidences under the general public policy that the greater good is served despite intruding upon the patient’s privacy." (9)

The Centers for Disease Control and Prevention, Atlanta, Georgia, in its guidelines, is very specific. ‘Patients who are HIV antibody positive should be instructed on how to inform their partners and to refer them for counselling and testing. If they are unwilling to notify their partners or if it cannot be assured that their partners will seek counselling, physicians or health department personnel should use confidential procedures to assure that the partners are notified.

Confidentiality in recording and reporting test results
Public health requirements make it necessary for laboratories to maintain records of positive HIV results. There is no difficulty as long as these records remain confidential documents. Where reporting (to public health authorities) is required by law, it is important to shield the identity of infected individuals from exposure. (8)

Law lags behind ethical requirements
"There is no statutory provision regarding consent (in India) for testing. A combined application of the doctrine of unconscionable contracts, Article 14 (Equality Clause) and Article 21 of the Constitution (no person shall be deprived of his or her liberty except by procedure established by law) may help in developing the argument that consent has to be informed and supported by counselling services".

"There is no specific statute providing for confidentiality in India. Section 126 of the Evidence Act protects from disclosure, professional communications between lawyers and their clients. No such provision exists in the case of doctors." (10)

Treatment of the patient testing positive for HIV
Several centres avoid all problems concerning the treatment of such patients by turning the patient away. "Doctors in India have refused to treat HIV and AIDS patients in some institutions including the All India Institute of Medical Sciences, the premier public medical institute in India." (9)

Describing the situation, at the largest public hospital in Madras, Chinai (1996) reports: Patients face discrimination at every level from ward boy right upto the doctors. Surgeries (on them) are constantly postponed. She cites the names of three patients, Kavita, Murugesha and Rajeshwari, who were left outside the hospital gate and transported by the (municipal) corporation lorry to the dumping ground. Having thrown patients out of the hospital, nurses would write that the patients are absconding, when they were not even fit to walk. "We are told to take such patients away, but where do we take them?" asked the wife of one such patient. Poor patients, especially women coming from rural areas, are subject to the worst forms of humiliation and violation. "We have gone to the police and the Tamil media but none are willing to do anything about it," one member of the Positive Action Group said. (11)

Another report describes similar treatment in a hospital in Guwahati. Twenty one year old widow, Jahnabai Sharma, and her daughter,Karishma, were seen at Guwahati Medical College after Jahnabai’s husband died of AIDS. They were then sent to the infectious diseases hospital. Two weeks later they were discharged. The high court investigating this case was told that if HIV infection was suspected, the patients were subjected to tests and if found positive, were ‘informally discharged’. In one case, a youth was discharged in haste with the saline drip attached to him. He died a few days later. An amount of Rs. 35,00,000 sanctioned by the Government of India to the hospital for treating patients with AIDS was lying unutilised. (12)

Where the patient is not turned away, he is made acutely conscious of the fact that he harbours an illness that is terrifying. Attendants do their best not to make any physical contact whatsoever. Sponging of the bed ridden patient is rarely carried out. When contact is inevitable, the attendant dons gloves, cap, mask and gown. We have witnessed doctors donning shielded goggles, plastic aprons and other paraphernalia such that they appear ready for a voyage in outer space.

Since doctors display fear and disgust, these percolate down the line to the humblest attendant who now tosses the patient’s linen and hands his meal to him in such a manner that no contact is made. Snide remarks implying certain knowledge of the means by which the patient acquired the infection are made in the presence of the patient and his family.

The person handling the patient’s bed pan and urinal does so almost under duress and with extreme disgust. When the patient needs suction of the larynx and trachea, these are done with the face averted to avoid infection by spray past the already formidable defences of goggles, mask, cap and gown. Whilst no one denies the need to take care when handling the patient’s body fluids and when dealing with his person, should we rob the patient of his dignity in doing so?

I am often puzzled by those who are so diligent in avoiding being infected by the patient. Wearing cap, mask, gown and gloves they suck the patient’s throat. They then stroll to the nurse’s table and plonk themselves on the chair. With the same pair of gloves on, they wipe the sweat off their own foreheads, write notes on the case paper and then replace the pen in an inner pocket. They then move on to the next patient known to have a negative HIV test and minister unto him using the same gloves, cap, mask and gown!

It is important to recall the American Medical Association Code of 1847 - an assertion that is representative of prevailing international sentiment: "And when pestilence prevails, it is their duty (the duty of doctors) to face the danger and to continue their labours for the alleviation of suffering, even at the jeopardy of their own lives.(emphasis added)." (7)

If contemporary confirmation is required, consider the words of physician philosopher, Edmund Pellegrino: "To refuse to care for AIDS patients, even if the danger were greater than it is, is to abnegate what is essential to being a physician." (13)

The General Medical Council of Great Britain is equally unambiguous: "It is unethical for a registered medical practitioner to refuse treatment or investigation for which there are appropriate facilities, on the ground that the patient suffers, or may suffer, from a condition which could expose the doctor to a personal risk. It is equally unethical for a doctor to withhold treatment from any patient on the basis of a moral judgement that the patient’s activities or lifestyle might have contributed to the condition for which treatment was being sought. Unethical behaviour of this kind might raise a question of serious professional misconduct." (3,4)

Taking advantage of the diagnosis
I know of examples where the patient testing positive for HIV has been charged huge sums for therapy because everything that comes in contact with him during the performance of tests or treatment has to be destroyed. I know of patients who have been charged the full cost of metallic instruments used during surgery when the instruments were carefully cleansed, sterilised and re- used on other patients later.

Patients with AIDS, attending a workshop in Pune, expressed their agony over the dismal state of affairs in the public hospitals in Madras. The encountered corruption, callousness and denial of treatment in these institutions. Death certificates were not issued without the payment of Rs. 500 as a bribe at the largest public hospital in Madras. (11)

When registered doctors refuse to treat patients testing positive for HIV, quacks take advantage. A workshop in Pune in August 1996 exposed the hollow claims of Majid, a Kerala based mining engineer who made extravagant claims about an Ayurvedic potion he had concocted which was said to cure AIDS. A brochure distributed by Majid claims that his drug has the sanction of the Indian Council of Medical Research and the World Health Organisation. People are selling their houses and mangalsutra to pay for Majid’s drug. Tests by the Indian Institute of Science, Bangalore showed that this drug contained corticosteroids. It is ironic that HIV patients had to warn the media against publishing advertisements of his drug and exposed his unfounded claims, the medical profession remaining blissfully unconcerned. (14)

Some frequently made arguments and rebuttals


1. I must know whether or not a patient has AIDS. If I know that his test for HIV is positive, I can take appropriate care to ensure that he does not pass his infection on to others.

There can be no argument about the need for a doctor to know all he can about his patient provided such knowledge is obtained in the best interests of the patient. When information is sought merely for the protection of the doctor, or, worse, to the detriment of the interests of the patient (as when he is thrown out of the consulting room or hospital merely because his HIV test is positive), the search for information becomes perverse, unethical and immoral.

2.I have a life to lead and a family to look after. Why should I involve myself in treating a patient with a fatal, communicable disease?

Such an attitude is born of ignorance and prejudice. HIV is a fragile virus that is easily destroyed. Ordinary precautions taken in the course of the management of any patient are more than sufficient to ensure that the treating physician does not get infected. Despite the hundreds of thousands of documented patients with HIV infection and AIDS the world over, there are hardly any proven cases of doctors being infected by the virus when the usual precautions were taken.

3.I have a right to refuse to treat any patient. What is wrong if I refuse to treat a patient with AIDS?

Refusal to treat on the basis of prejudice or fear is not expected of the good doctor. The law does permit any doctor to refuse to treat any patient provided such refusal is not likely to result in irreversible harm or death. By using this provision of the law, the doctor will be acting legally but it will be against all ethical and moral norms.

"There is no specific statute or rules or regulations obliging the doctors to treat HIV patients. However, all doctors and medical personnel have a common law duty to treat patients brought to them." (10)

Some questions that are never answered by doctors
Since you demand that each of your patients gets himself tested for infection by HIV and shows you the result, is it not fair that you get yourself tested for HIV as well and announce the results to each of your patients?

What proof have you that patients can transmit HIV to you? Can you provide references in the medical literature to such transmission?

Since you insist on wearing cap, mask, goggles, gown and special protective shoes, could you provide references in the literature to prove that these are effective in preventing transmission of HIV?

When the literature shows that items used in the care of the patient who tests positive for HIV are easily sterilised by soaking them in bleach and then autoclaving them or sterilising them by glutaraldehyde or ethylene oxide, why do you destroy them?

Why do you charge patients testing positive for HIV more than you would other patients? Where surgery is necessary, why do you charge a patient with HIV more than you do another with diabetic gangrene or peritonitis?

Public health strategy on AIDS
Prevention and treatment
Drugs effective against the AIDS virus (such as AZT or zidovudine) are not freely available to help those infected with HIV. Programmes in India largely consist of advising people how AIDS is contracted, encouraging blood tests and handing out condoms. This is especially regrettable as India is a signatory to the Paris AIDS Summit Declaration (1 December 1994) which rightly states:

"Mindful that HIV/ AIDS prevention and care and support strategies are inseparable, and hence must be an integral component of an effective and comprehensive approach to combating the pandemic, we declare our obligation to act with compassion for and in solidarity with those with HIV or at risk of becoming infected and undertake in our national policies to protect and promote the rights of individuals, in particular those living with or most vulnerable to HIV/ AIDS through the legal and social environment." (15)

Special care centres for AIDS sufferers, or hospices that might allow them to die with dignity, are virtually unknown. As a result, for many AIDS sufferers, the miseries of death are compounded.

The government’s failure to set up effective AIDS programmes means that much of the burden falls on private efforts. Those attempting to stem the tide of infection by HIV battle against the taboos of a society that discourages sexual candour, against ancient superstitions that discourage the use of condom use and against indifference, sometimes even hostility, from local officials.

To take just one vulnerable group, the seriousness of the AIDS problem among Indian truckers can be gauged from discussions with them and their ride- along helpers. The drivers have an average of 150 to 200 sexual encounters a year with women and with girls. (16)

Sex workers of foreign origin
We have amidst us girls and young women who have been lured or kidnapped from neighbouring countries - Bangla Desh, Nepal, Myanmar. The manner in which we deal with them once we find that they are infected by HIV needs serious reconsideration.

Our current approach has elicited the following comment from a citzen of Nepal on the internet: "Acting on instructions from the Bombay High Court, police on 5 February 1996 raided some of the city's brothels. Four hundred and fifty six girls were rounded up, among them 218 Nepalese. Since there is no law against prostitution in India, it is customary to deal with the problem by sending the sex workers back to their home regions, once apprehended. This time, as a large number of Nepalese were also involved, the Maharashtra government notified the Centre which in turn asked Nepal to take in the Nepalese girls. But Kathmandu has been in no hurry to comply and the impasse continues, even as two of the girls have died, presumably through AIDS complications".

"The Bombay High Court was well within its rights when it ordered the police action under the Suppression of Immoral Traffic of Women and Girls Act. But it was no moral indignation that motivated the justices. What spurred them was the disclosure by a daily paper that up to 65 percent of Mumbai’s prostitutes may be HIV positive. Their solution was simple: send them back to where they came from. Case closed".

"Besides the questionable ethics of such a move, how could the learned jurists be oblivious of the wider danger of sending the hapless girls home? If the metropolis of Mumbai feels threatened by their presence, what would be the repercussions on the rural areas from where a great majority of these girls come? And how can it be proper that Mumbai (its men and economy) takes maximum advantage of poor women driven to prostitution, and then dumps them the moment they are seen as hazards? No one has bothered to ask that question, least of all the Nepalese government."

Infected blood
A significant number of commercial blood donors test HIV positive. Although government policy requires hospitals and blood banks to test blood for HIV infection, surveys show that at least 30 percent of all blood used is not tested, and that this may account for as many as 12 percent of HIV infections.

The medical profession has failed to take action to prevent tainted blood from entering the blood banks. It was left to social organisations such as Common Cause and the Courts to compel the profession to act.

In an attempt to ensure safer blood supply and lessen malpractice, malfunctioning and corruption in our blood banking system, the Supreme Court told the government to create a National Council for Blood Transfusion. The judges advised the government to enact separate legislation for .regulating the collection, processing, storage, distribution, and transportation of blood and the operation of blood banks. The order also called for all of India’s blood banks to be licensed within a year. A quarter of them were unlicensed when the order was passed.

Other provisions in the judicial order included the ending of professional sale of blood within 2 years, verifying that trained drug inspectors check the banks, and allowing 100 percent exemption on income tax to people donating money to the banks. The court’s directive came in response to a petition filed by Common Cause.

The court ruled a long while ago. We have yet to see the ruling translated into practice.

Infected semen

At the seminar on medical ethics organised by Max Mueller Bhavan, New Delhi, and the All India Institute of Medical Sciences on 8 9 October 1995, a call for caution in the use of sperm supplied by private sperm banks, which have mushroomed in many cities, was sounded. Dr. Lalita Badhwar, a New Delhi gynaecologist, pointed out that most sperm banks did not test for HIV. Since semen is one of the most potent means for transmitting the virus, this lapse is blatant malpractice. During the discussion on this comment, Dr. Indira Hinduja of Mumbai clarified that her hospital had totally stopped artificial insemination because it was morally wrong to use untested donor sperm.
Grants for fighting AIDS: how are they spent?
The Indian government has sent out conflicting messages. At times it has described AIDS as a national crisis and at others treating it as a menace that will go away. The government announced a $100 million five year AIDS programme in 1992, with $85 million of the money in the form of a loan from the World Bank. But as we near the end of the programme, only $35 million has been spent.

It is not just the authorities that are at fault. Those claiming to work on AIDS are not blameless.

According to Western experts, much of the money has gone on expensive conferences, planning sessions and reports. The sums spent on programmes to improve blood screening, increase AIDS awareness, promote condom use and create clinics have been pitifully meagre.

Research on AIDS: one unwelcome Indian example (14)
Desperation will lead people to do almost everything. This is a story about what happened to 10 people in Mumbai when an American veterinarian came calling with what he said was a miracle cure for AIDS.

These ten, all HIV positive, became guinea pigs in a secret test of an experimental vaccine whose effects, according to international health experts, are still largely unknown. The vaccine based on Bovine Immunodeficiency Virus (BIV) has never been tested on animals and most scientists doubt whether it could offer any remedy to stricken humans.

But ten middle class, educated people in Bombay were persuaded BIV could save their lives. One of the patients who took part in the trials recalled the vet’s pitch: "He was saying the vaccine has come and you are very lucky people. He said we will become HIV negative - 100% HIV negative. That’s what he told us." After the trial was abandoned, the patients were left with no medical support.

Clandestine drug trials are unethical and against the law. But it can take years and hundreds of millions of pounds to carry out an authorised vaccine trial in the West and the American vet was in a hurry to exploit his patent application.

Bhairab Bhattacharya, aged 67, the Calcutta born inventor and naturalised American who says he has a Ph. D. in veterinary medicine, has spent several fruitless years trying to persuade the scientific community of the merits of BIV.

Bhattacharya was in correspondence with Dr. I. S. Gilada. Dr. Gilada and a social worker, Maya Gogte, assembled a list of trial participants. "As such, our lives are useless," said one participant. "If something could come out for humanity, it is good. I have a scientific background and it sounded logical." Dr. Bhattacharya delivered a brief lecture in English about the properties of BIV. Participants were given no printed information about the vaccine and there was no translation for those who spoke only Hindi or Marathi. They signed consent forms, on which it was promised that the clinic would give them follow up medical support.

After they received the injection, Dr. Gilada handed each participant an envelope containing Rs. 1000. According to the sketchy notes taken by one of those who supervised the first injections, one of the participants was already in the terminal phases of AIDS, was suffering ftom diarrhoea and had a temperature of 104 degrees F. The man eventually died of AIDS- related ailments.

Dr. Bhattacharya made no attempt to secure official permission for his experiment. The central government and health authorities in Bombay and the state of Maharashtra say they were deliberately kept in the dark. Dr. Bhattacharya argues that the search for a cure for AIDS is too urgent for him to bother with formalities.

The trial was abandoned because of a dispute (between Bhattacharya and Gilada) over money. By the time the second or booster shot was administered on April 12, 1994, the experiment was effectively over. A tenth man who could not be present at the clinic was so desperate to get his shot that he borrowed money for the train fare to New Delhi to track down Dr. Bhattacharya. He was shocked to find that they had not heard of him at the addresses Dr. Bhattacharya was supposed to be available. Dr. Bhattacharya travelled on to Calcutta where he says he injected four prostitutes who have HIV with the vaccine and distributed milk infected with BIV to several other women in the red light district.

Raju, a designer aged 38, who took part in the experiment said, "They shouldn’t have dumped us. They left us on the streets like stray dogs. It was completely inhuman."

A draft code to be adopted by all doctors
We need to evolve a code of conduct which must be wholeheartedly subscribed to by all doctors. A draft code is offered. This could form the basis for the evolution of a definitive document.
We recognise the following truths:
The Human Immunodeficiency Virus (HIV) is a virus capable of infecting humans.
It is a fragile virus that is easily killed by the standard techniques for sterilisation.
It is commonly transmitted by one person to another through homosexual or heterosexual intercourse, transfusion of infected blood or blood products, or through unsterile hypodermic needles used for injection into a person already infected by HIV.
Such transmission of the virus can be avoided by the use of simple measures such as the use of a condom during sexual intercourse, screening of blood donors for HIV and the use of sterile hypodermic needles.
Infection by HIV produces a chronic, manageable illness.
We support the rights of infected patients to be treated without prejudice in their workplace, home, and health care.
Some individuals infected by HIV may go on to develop Acquired Immuno deficiency Syndrome (AIDS).
At present we have no cure for AIDS. The diagnosis of AIDS is, in most cases, tantamount to a death sentence.
Patients with AIDS may suffer a host of infectious diseases and suffer considerably before they die.
There is considerable prejudice in many minds against persons known to be infected by HIV or suffering from AIDS. This augments the agony of such individuals.
As aware and concerned physicians, we therefore resolve:

We are morally obliged and bound by duty to provide the best possible treatment to patients known to harbour HIV or suffer from AIDS, just as we would to any other patient entrusting himself or herself to our care.
Such care of patients known to harbour HIV or suffering from AIDS, will be provided under the umbrella of ethical principles, special care being taken to ensure confidentiality in view of the prevailing general prejudice against such individuals.
Patients will be offered counsel on the best course of action to prevent transmission of infection to spouses, other sexual partners and the population at large.
Where the patient is seen to act irresponsibly, we may find it necessary to intervene in the interest of the spouse or the public at large.
The function of the immune system improves with proper diet, exercise, healthy living and can be assisted by therapeutic means. We shall do all we can to reduce the possibility of inter current infection and maintain a state of health in such patients.
We shall discuss scientific knowledge on HIV and AIDS at every forum at our command so as to inform the public, empower it to take measures at preventing the spread of disease and ensure that those infected by HIV have access to the best possible medical care.
Acknowledgements
I am obliged to Dr. Rakesh Tandon, Professor of Gastroenterology, All India Institute of Medical Sciences, for re awakening interest in this subject and ensuring that I disciplined myself into preparing a formal document on it.

I am grateful to Dr. Gabriel Britto and Mr. S. K. Neelakanth of the National Addiction Research Centre, Andheri, for providing many important references. They enabled me to consult these references in the comfort of my own office by transporting them to and fro.

I have benefited greatly from discussions with several workers in the field and with my colleagues in the Forum for Medical Ethics Society.

References

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Sunil K. Pandya,Department of Neurosurgery, Seth G. S. Medical College and K.E M. Hospital, Parel, Mumbai 400012
On the following pages we reproduce the revised South African code of ethics in HIV and AIDS. It provides a powerful example of how the national medical association of a country can instruct and guide its members and other personnel in the health services. We desperately need such guidelines in our own country.