Professional Misconduct (Infamous Conduct in Professional Respect)

Definition

"Any conduct of the registered medical practitioner which might reasonably be regarded as disgraceful or dishonorable. The conduct of the Doctor is judged by professional men of good repute and competence. It involves an abuse of professional position."

• It is sometimes called "the professional death sentence" because penal erasure (removal of name from the medical register) deprives the practitioner of all privileges of a registered practitioner.

Disciplinary Control

1. Issue a warning notice for unethical practices
2. Remove the name of the practitioner from the register (temporarily or permanently) after enquiry proving serious professional misconduct
3. Restore the name so removed

Judicial Procedure

1. When a practitioner has been convicted of a cognizable offence, censured by a judicial/competent authority, or found prima facie guilty of serious professional misconduct
2. By complaint from any person or body
3. Suo motu by the Council

Procedure of Enquiry on Complaint

1. The Registrar submits the complaint to the President
2. Matter is referred to the Sub-committee or Executive Committee for investigation and legal advice
3. If no prima facie case: complainant is informed
4. If enquiry warranted: notice is issued to the practitioner specifying the charge; the practitioner must answer in writing and appear before the Council
5. At hearing, both complainant (or legal adviser) and practitioner must be present
6. After conclusion of evidence, vote is taken and judgment given
7. If the majority confirms the charge is proved: Council votes again - either remove name from register or warn the practitioner

Acts Constituting Professional Misconduct (Warning Notice List)

The Most Serious Misconducts - "The 6 A's"

1. Adultery - arising out of professional relationship
2. Advertising - self-promotion
3. Abortion - unlawful termination of pregnancy
4. Association with unqualified persons in professional matters
5. Addiction to drugs
6. Alcohol - consumption of alcohol at the workplace

Erasure of Name from Medical Register

1. After death of the registered practitioner
2. Entries made in error or as a result of fraud
3. Penal erasure: the main cause - serious professional misconduct - called "the professional death sentence," depriving the practitioner of all privileges of a registered practitioner

Medical Negligence / Medical Malpractice

a) Definition of Medical Negligence / Medical Malpractice

"Professional negligence is defined as absence of reasonable care and skill, or willful negligence of a medical practitioner in the treatment of a patient, which causes bodily injury or death of the patient."

• Negligence = doing something one is NOT supposed to do, OR failing to do something one IS supposed to do.
• Medical negligence is a part of the law of torts (a tort = a civil wrong for which the sufferer can seek compensation through legal action).
• It is also called Malpractice (Malpraxis).

1. Improperly/unjustifiably deviating from accepted practices
2. Employing accepted practices but doing so unskillfully

b) Elements of Negligence (The 4 D's)

• "But for" test: But for the doctor's breach, the patient would not have been injured
• Increased/multiplied risk test: The doctor's breach increased the risk of injury

c) Types of Negligence with Examples

1. Civil Negligence

• A patient (or relative, in case of death) brings suit in civil court for compensation
• A doctor sues for fees and the patient alleges professional negligence in defense

1. Refusal to admit patients requiring urgent hospitalization
2. Failure to obtain informed consent
3. Failure to examine the patient personally
4. Not ordering X-ray where history suggests fracture/foreign body
5. Misreading X-ray or failing to get it read by a competent person
6. Administration of incorrect drugs or drugs meant for another patient
7. Mislabelling blood/IV fluid bottles
8. Failure to attend the patient in time
9. Wrong diagnosis due to absence of skill/care
10. Failure to give proper post-operative care or instructions
11. Failure to warn of side-effects
12. Giving overdose or prescribing a drug that previously caused adverse reaction
13. Premature discharge of the patient
14. Experimenting on patients without consent

2. Criminal Negligence

1. A doctor shows gross absence of skill or care resulting in serious injury or death
2. A doctor performs an illegal act
3. Death of an assaulted person is attributed to the doctor's negligent treatment

1. Indifference to an obvious risk of injury to health
2. Actual foresight of the risk but continuation of the same treatment
3. Appreciation of the risk and intention to avoid it, but showing a high degree of negligence in attempted avoidance
4. Inattention or failure to avoid a serious risk - going beyond mere inadvertence

• Gross lack of competence / gross inattention / gross recklessness / wanton indifference to patient safety
• An extreme departure from the ordinary standard of care
• Such disregard for life and safety as to amount to a crime against the State

3. Contributory Negligence

Any unreasonable conduct or absence of ordinary care on the part of the patient which, combined with the doctor's negligence, contributed to the injury as a direct proximate cause - without which the injury would not have occurred.

1. Failure to give accurate medical history
2. Failure to cooperate with reasonable instructions
3. Refusal to take suggested treatment
4. Leaving hospital against medical advice
5. Failure to seek further help when symptoms persist

• The doctor's negligence is NOT the sole proximate cause of injury
• If doctor and patient are both negligent simultaneously - good defense for the doctor
• Normally only a partial defense - court may reduce damages proportionally (doctrine of comparative negligence)
• Last Clear Chance Doctrine: Even if patient was negligent, doctor is still liable if he discovered the danger while there was still time to avoid injury
• Good Samaritan Doctrine: One assisting another in serious danger cannot be charged with contributory negligence unless assistance was reckless

4. Corporate Negligence

Defences of a Doctor Against a Charge of Medical Negligence

1. No Duty Owed to the Plaintiff

2. Duty Discharged According to Prevailing Standards

3. Misadventure (Therapeutic Misadventure)

• Therapeutic misadventure - injury or death during treatment
• Diagnostic misadventure - harm during a diagnostic procedure
• Experimental misadventure - harm during an agreed experimental study

• Adverse/hypersensitivity reactions to drugs, if proper history was taken and informed consent obtained
• Rare anaphylactoid reactions even when sensitivity history was negative

4. Error of Judgement

1. He acted with ordinary care and secured all necessary data on which to base a sound judgement
2. He failed to cure or a bad result followed despite exercising reasonable care and skill
3. His judgement conformed to accepted medical practice

"No doctor ensures success in his diagnosis or treatment, nor guarantees a cure. There is always room for a difference of opinion among doctors."

5. Contributory Negligence

• Patient gave incomplete/inaccurate medical history
• Patient failed to follow reasonable instructions
• Patient refused the suggested treatment
• Patient left hospital against medical advice
• Patient failed to seek further help when symptoms persisted

6. Res Judicata (Section 337, BNSS)

7. Limitation

• Where breach of a specific contractual duty of care is involved: legal action can be initiated up to 3 years from the date of alleged negligence.

Summary Table