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Friday, February 26, 2010

Law to prevent govt doctors from taking company favours soon

November 30, 2009, 1:04 IST

The Centre today said it would soon frame a law to prevent government doctors from receiving gifts and cash from pharmaceutical companies.

“Doctors take favours from pharma companies either in the form of cash or in kind and in return give unnecessary favour to them...They prescribe costly medicines of that company...To stop this, the Centre has decided to formulate a law and implement it soon,” Union Health and Family Welfare Minister Gulam Nabi Azad said at a Nationalistic Doctor’s Forum programme.

Azad said the Centre would set up an AIIMS-like institute in West Bengal soon and the state government has already agreed to allot 100-acre land for the purpose.

The Union government has sanctioned Rs 890 crore for the 960-bed hospital with super-speciality facility, he said.

A central fund of Rs 140 crore has also been sanctioned for upgrading Calcutta Medical College and Hospital.

He said the Centre has also decided to go in for a private-public partnership to accelerate and improve the healthcare system of the country.

Tuesday, February 23, 2010

‘Deviation from normal practice not medical negligence’

J. Venkatesan
New Delhi: As long as doctors have performed their duties and exercised an ordinary degree of professional skill and competence they cannot be held guilty of negligence, the Supreme Court held on Wednesday. Laying down a set of principles, a Bench said, “Mere deviation from normal professional practice is not necessarily evidence of negligence.”

The Bench of Justice Dalveer Bhandari and Justice H. S. Bedi said: “A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally.”

Writing the judgment, Justice Bhandari said that in complicated cases doctors had to take a chance even if the rate of survival was low. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

The Bench said: “A medical practitioner would be liable only where his conduct fell below the standards of a reasonably competent practitioner in his field. In the realm of diagnosis and treatment, there is scope for a genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of the other professional doctor.

“The medical professional is often called upon to adopt a procedure which involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient than a procedure involving a lesser risk but higher chances of failure. Just because a professional, looking at the gravity of illness, has taken a higher element of risk to redeem the patient out of his/her suffering which [however] did not yield the desired result, [it] may not amount to negligence.”

Further, “Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him is acceptable to the medical profession. It is the bounden duty and obligation of civil society to ensure that medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear.”

“The aforementioned principles must be kept in view while deciding cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of negligence,” said the Court.

In the instant case, Kusum Sharma and others challenged a National Consumer Disputes Redressal Commission order rejecting their plea for a compensation of Rs. 45 lakh from the Batra Hospital and Medical Research Centre in the Capital for the death of her husband R.K. Sharma after a surgery. It was alleged that Sharma died of medical negligence. The Bench said, “The Commission was justified in dismissing the complaint of the appellants. No interference is called for. The appeal being devoid of any merit is dismissed.”

Thursday, February 04, 2010

Medical records not under RTI: court

The Delhi High Court Tuesday ruled that income tax returns and medical records do not fall under the purview of Right To Information (RTI) Act "unless public interest is attached" holding in its landmark judgment that the Chief Justice of India (CJI) came under the ambit of the transparency law.

Quoting an American writer that "one man's freedom of information is another man's invasion of privacy", a full bench of Chief Justice Ajit Prakash Shah and Justices S. Muralidhar and Vikramjit Sen said: "Personal information including tax returns, medical records etc. cannot be disclosed in view of Section 8(1)(j) of the act."

"If, however, the applicant can show sufficient public interest in disclosure, the bar (preventing disclosure) is lifted and after duly notifying the third party (the individual concerned with the information or whose records are sought) and after considering his views, the authority can disclose it," they said.

Highlighting how the right to information often clashes with the right to privacy, the court noted that the government stores a lot of information about individuals, supplied by the individuals themselves in applications made for obtaining various licences, permissions including passports, or through disclosures such as income tax returns or for census data.

"When an applicant seeks access to government records containing personal information concerning identifiable individuals, it is obvious that these two rights are capable of generating conflict," the court said, adding that "in some cases, this will involve disclosure of information pertaining to public officials. In others, it will involve disclosure of information concerning ordinary citizens. In each instance, the subject of the information can plausibly raise a privacy protection concern."

However, the court ruled that notes made by the judges do not come under the RTI act, the court said the notes taken by judges while hearing a case cannot be treated as final views expressed by them on the case. "They are meant only for the use of the judges and cannot be held to be a part of a record 'held' by the public authority. However, if the judge turns in notes along with the rest of his files to be maintained as a part of the record, the same may be disclosed."

Maintaining that the right to information may not always have a linkage with the freedom of speech, the court said: "If a citizen gets information, certainly his capacity to speak will be enhanced."

"But many a time, he needs information which may have nothing to do with his desire to speak. He may wish to know how an administrative authority has used its discretionary powers. He may need information as to whom the petrol pumps have been allotted. The right to information is required to make the exercise of discretionary powers by the executive transparent and, therefore, accountable because such transparency will act as a deterrent against unequal treatment," the court said.