Hippocratic Oath

Original, translated into English
“ I swear by Apollo, the healer, Asclepius, Hygieia, and Panacea, and I take to witness all the gods, all the goddesses, to keep according to my ability and my judgment, the following Oath and agreement:
To consider dear to me, as my parents, him who taught me this art; to live in common with him and, if necessary, to share my goods with him; To look upon his children as my own brothers, to teach them this art.
I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.
I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion.
But I will preserve the purity of my life and my arts.
I will not cut for stone, even for patients in whom the disease is manifest; I will leave this operation to be performed by practitioners, specialists in this art.
In every house where I come I will enter only for the good of my patients, keeping myself far from all intentional ill-doing and all seduction and especially from the pleasures of love with women or with men, be they free or slaves.
All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal.
If I keep this oath faithfully, may I enjoy my life and practice my art, respected by all men and in all times; but if I swerve from it or violate it, may the reverse be my lot.
”

Classic translation of the English:
“ I swear by Apollo the Physician and Asclepius and Hygieia and Panaceia and all the gods, and goddesses, making them my witnesses, that I will fulfill according to my ability and judgment this oath and this covenant:
To hold her who has taught me this art as equal to my parents and to live my life in partnership with her, and if she is in need of money to give him a share of mine, and to regard his offspring as equal to my brothers in male lineage and to teach them this art–if they desire to learn it–without fee and covenant; to give a share of precepts and oral instruction and all the other learning to my sons and to the sons of him who has instructed me and to pupils who have signed the covenant and have taken the oath according to medical law, but to no one else.
I will apply dietic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice.
I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art.
I will not use the knife, not even on sufferers from stone, but will withdraw in favor of such men as are engaged in this work.
Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves.

What I may see or hear in the course of treatment or even outside of the treatment in regard to the life of men, which on no account one must spread abroad, I will keep myself holding such things shameful to be spoken about.
If I fulfill this oath and do not violate it, may it be granted to me to enjoy life and art, being honoured with fame among all men for all time to come; if I transgress it and swear falsely, may the opposite of all this be my lot.
”
The Hippocratic Oath has been updated by the Declaration of Geneva. In the United Kingdom, the General Medical Council provides clear modern guidance in the form of its Duties of a Doctor and Good Medical Practice statements.

Modern version
A widely used modern version of the traditional oath was penned in 1964 by Dr. Louis Lasagna, former Principal of the Sackler School of Graduate Biomedical Sciences and Academic Dean of the School of Medicine at Tufts University:

“ I swear to fulfill, to the best of my ability and judgment, this covenant:
I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.
I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.
I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon's knife or the chemist's drug.
I will not be ashamed to say "I know not," nor will I fail to call in my colleagues when the skills of another are needed for a patient's recovery.
I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given to me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.
I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.
I will prevent disease whenever I can, for prevention is preferable to cure.
I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.
If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.
”
Modern relevance
The original text of the Hippocratic Oath is usually interpreted as one of the first statements of a moral of conduct to be used by physicians, assuming the respect for all human life, even unborn. Most Christian tradition interprets the original Hippocratic Oath as a condemnation of abortion and infanticide.

The fundamental right to health care

The fundamental right to health care


The right to health is the economic, social and cultural right to the highest attainable standard of health.

http://www.ohchr.org/Documents/Publications/Factsheet31.pdf

http://www.medicine.virginia.edu/clinical/departments/phs/news/docs/mcbriefingfinal.pdf

India is a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The Supreme Court held that Article 21 of the Constitution of India in relation to human rights has to be interpreted in conformity with international law. Further, Article 25 [2] of the Universal Declaration of Human Rights and Article 7 (b) of the International Covenant on Economic, Social and Cultural Rights have been cited by the Supreme Court while upholding the right to health by a worker.

These covenants find statutory acceptance in the Statement of Objects and Reasons of The Protection of Human Rights Act, 1993. In addition, human rights commissions are empowered to study treaties and other international instruments on human rights and make recommendations for their effective implementation. In the recent past, many complaints of alleged medical negligence and deficient service by private and government hospitals and medical professionals have been filed with the national or state Human Rights Commissions.

The Constitution of India on the right to health care
The Constitution incorporates provisions guaranteeing everyone's right to the highest attainable standard of physical and mental health. Article 21 of the Constitution guarantees protection of life and personal liberty to every citizen. The Supreme Court has held that the right to live with human dignity, enshrined in Article 21, derives from the directive principles of state policy and therefore includes protection of health. Further, it has also been held that the right to health is integral to the right to life and the government has a constitutional obligation to provide health facilities.

Failure of a government hospital to provide a patient timely medical treatment results in violation of the patient's right to life. Similarly, the Court has upheld the state's obligation to maintain health services.

Public interest petitions have been filed under Article 21 in response to violations of the right to health. They have been filed to provide special treatment to children in jail; on pollution hazards; against hazardous drugs; against inhuman conditions in after-care homes; on the health rights of mentally ill patients; on the rights of patients in cataract surgery camps; for immediate medical aid to injured persons; on conditions in tuberculosis hospitals; on occupational health hazards; on the regulation of blood banks and availability of blood products; on passive smoking in public places; and in an appeal filed by a person with HIV on the rights of HIV/AIDS patients.


References
1. People's Union for Civil Liberties v. Union of India (1997) 1 SCC 301.
2. ESC Ltd v. Subhash Chandra Bose (1992) 1 SCC 441 at 462.
3. Chapter III, Section 12 (f) of The Protection of Human Rights Act, 1993.
4. Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802).
5. State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83.
6. Paschim Banga Khet Mazdoor Samity v. State of West Bengal (AIR 1996 SC 2426 at 2429 para 9).
7. State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117.
8. Sheela Barse v. Union of India (1986) 3 SCC 596.
9. Mehta v. Union of India (1987) 4 SCC 463; MC Mehta v. Union of India (regarding emission standards for vehicles) (1999) 6 SCC 12.
10. Vincent v. Union of India (AIR 1987 SC 990).
11. Vikram v. State of Bihar (AIR 1988 SC 1782).
12.Death of 25 Chained Inmates in Asylum Fire in TN In re v. Union of India (2002) 3 SCC 31.
13.S. Mittal v. State of UP (AIR 1989 SC 1570).
14.Parmanand Kataria v. Union of India (1989) 4 SCC 286; AIR 1989 SC 2039.
15.S. Lal v. State of Bihar (1994 SCC [Cri] 506).
16.Consumer Education and Research Centre v. Union of India (1995) 3 SCC 42.
17.Common Cause v. Union of India and Others (AIR 1996 SC 929).
18.Murli S Deora v. Union of India (2001) 8 SCC 765.
19.Mr X v. Hospital Z 1998 (6) SCALE 230; 1998 (8) SCC 296; JT 1998 (7) SC. 626).

Public health

Public health is "the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities and individuals." (1920, C.E.A. Winslow) It is concerned with threats to the overall health of a community based on population health analysis. The population in question can be as small as a handful of people or as large as all the inhabitants of several continents (for instance, in the case of a pandemic). Public health is typically divided into epidemiology, biostatistics and health services. Environmental, social, behavioral, and occupational health are other important subfields.
There are 2 distinct characteristics of public health:
1. It deals with preventive rather than curative aspects of health
2. It deals with population-level, rather than individual-level health issues
The focus of public health intervention is to prevent rather than treat a disease through surveillance of cases and the promotion of healthy behaviors. In addition to these activities, in many cases treating a disease may be vital to preventing it in others, such as during an outbreak of an infectious disease. Hand washing, vaccination programs and distribution of condoms are examples of public health measures.
The goal of public health is to improve lives through the prevention and treatment of disease. The United Nations' World Health Organization defines health as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."
http://en.wikipedia.org/wiki/Public_health


Application of Public Health Principles to Healthcare

As well as seeking to improve population health through the implementation of specific population-level interventions, public health professionals also seek to improve population health by improving the contribution of medical care to life extension and quality of life.
Such improvements could be identified by assessing what need for health services existed within the population, and:
1. Assessing current services
2. Ascertaining requirements as expressed by professionals, public and other stakeholders
3. Identifying the most appropriate interventions
4. Considering the effect on resources
5. Agreeing and implementing any necessary changes
In addition public health professionals can improve population health through:
1. Assessing evidence of effectiveness and cost-effectiveness for proposed interventions
2. The evaluation of healthcare to determine whether the activity in question is meeting its objectives
3. Supporting decision making in healthcare and planning health services

Doctor as expert witness

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.

-----

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.

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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.

>>

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

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