Laws and dentistry

LAWS AND
DENTISTRY

RINEE KHANNA

INTRODUCTION
 Every profession has interaction with the law.

It is important for the dental assistant to
understand the law as it relates to dental
assisting and the practice of dentistry.

 Regulations regarding dental assistants vary

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

OATH
 “Thou shall be free from envy, not cause

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

DOCTOR-PATIENT
CONTRACT
Contract is defined as an obligation to do or
not to do a particular thing. agreement
between two or more persons which creates
A dentist may refuse to treat a patient for any
reason except race, creed, color, national
origin or based upon a person’s disability.
Patients suffering from HIV, fall into the
category of disabled persons.

-An Implied Contract
An implied contract is one inferred from conduct of
parties and arises where one person renders services
under circumstance.
Implied contract is not established when,
 The doctor renders first-aid in an emergency.
 He makes a pre-employment medical

examination for a prospective employer.

 He performs an examination for life insurance

purpose

Implied Warranties Owed By
The Doctor –
 Use reasonable care and methods in the provision of services.
 Be properly licensed and registered and meet all other legal

requirements.

 Maintain a level of knowledge in keeping current advances.
 Not use experimental procedures.
 Ensure that care is available in emergency situations.

 Charge a reasonable fee.
 Keep the patient informed of her or his progress.
 Not to undertake any procedure for which the

practitioner is not qualified.

 Complete the care in a timely manner.
 Keep accurate records.
 Practice in a manner consistent with the code of ethics of

the profession.

Implied Duties Owed By
The Patient –
When a patient hires or avails of services of a doctor for treatment,
he has the following duties:
 He must disclose all information that may be necessary for

proper diagnosis and treatment.

 He must co-operate with the doctor .
 He must carry out all instructions as regards drugs, food, rest,

exercise or any other relevant / necessary aspect.

 He must compensate the doctor in terms of money.

An Express Contract –
It is an actual agreement of parties, the term of which are
openly uttered or declared at the time making it, being
stated in distinct and explicit language.
A doctor-patient contract requires that the doctor must –
I.

Continue to treat such a person.

II. With reasonable care.
III. Reasonable skill.
IV. Not undertake any procedure/treatment beyond his

skill.

V. Must not diclose professional secrets.

The doctor-patient relationship ends when:
 Both parties agree to end it.
 Either the patient or dentist dies.
 The patient ends it by act or statement.
 The patient is cured.
 The dentist unilaterally decides to

terminate the care.

CONSENT
 The term consent is defined as “when two or more

person agree upon same thing in same sense they
are said to be in consent” given in section 13 of
Indian contract act 1872.

WHO CAN GIVE CONSENT ?
For purpose of clinical examination diagnosis and
treatment ,consent can be given by any person who is
conscious ,mentally sound and above 12 years of age
as provided under section 88 &90 of Indian Penal
Code,1860.

WHEN CONSENT IS NOT VALID ?
Consent given under fear ,fraud or
misrepresentation of facts or by a person who is
ignorant of implications of consent or who is under
12 years of age is invalid.
TYPES OF CONSENT
IMPLIED CONSENT:
The fact that a patient comes to a doctor for an
ailment implies that he is agreeable to medical
examination in general sense.

EXPRESS CONSENT:
Anything other than implied consent is express consent. This
may be either oral or written. Express oral consent is obtained
for relatively minor examination or therapeutic procedures.
INFORMED CONSENT:
All information must be explained in comprehensible non
medical terms preferably in local language about:
 Diagnosis
 Nature of treatment
 Risk involved
 Prospects of success
 prognosis

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

SITUATIONS WHERE CONSENT NEED NOT BE
OBTAINED BY CONCERNED MEDICAL
PROFESSIONAL:
 Medical emergencies.
 In case of person suffering from a notifiable

disease like AIDS.

 Immigrants
 Members of armed force
 New admission to prisons
 In case of person where court may order for

psychiatric examination

SITUATIONS REQUIRING EXTRA
CAUTION :
 Retention of object in operation sites
 Accident and emergency department:

senior staff must be readily available

 Amputation of wrong limb digit or

operation of wrong eye or tooth

 Anesthesia:

Anesthesia along with surgeons, present a
common target for litigation.

PROFESSIONAL NEGLIGENCE
 Professional negligence is defined as breach of duty

caused by omission to do something which a reasonable
man guided by those considerations which ordinarily
regulates the conduct of human affair would do or doing
something which a prudent and reasonable man would
not do.

 Medical negligence is defined as lack of reasonable care

and skill or willful negligence on part of a doctor in
treatment of patient.

 In order to achieve success in action for negligence

consumer must be able to establish to court that:

 Doctor owed him a duty to conform to a particular

standard of professional conduct

 Doctor was derelict and breached that duty
 Patient suffered actual damage.

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

CONSUMER PROTECTON ACT
 The Consumer Protection Act, 1986 that came into force on 15th April 1987 - is

a milestone in the history of socio-economic legislation in the country.

 It is one of the most progressive and comprehensive piece of legislations enacted for

the protection of consumers.

 The main objective of the act is to provide for the better protection of consumersThe

act is intended to provide simple, speedy and inexpensive redresses to the consumers
'grievances, and relief of a specific nature and award of compensation wherever
appropriate to the consumer.

 amended in 1993and in 2002 - extend its coverage and scope and to enhance the

powers of the redresses machinery

 Who is liable?
 All medical/dental practitioners doing independen

t medical/dental practice unless rendering only
free service

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

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

 Medical / dental practitioners and hospitals paid

by an insurance firm
for the treatment of a client or on employment for
that of an employee

 Who is not liable?
 It exempts only those hospitals and

the medical/dental practitioners of such

hospitals which offer free service to all
patients.
 The Act envisages three- tier quasi-

judicial machinery at the National(Natio
nal Commission), State (State Commissi
on) and District levels(District Forum).

SUPREME COURT
(Final Appeal)

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

Jurisdiction

STATE COMMISSION
Appellate Authority for District Forums motto Revision Original
Jurisdiction over Rs. 5,00,000 up to Rs. 20,00,000

DISTRICT FORUM
Original Jurisdiction up to Rs. 5,00,000

Structure of consumer forums / commissions and their
jurisdictions:
As per the consumer Protection Rules, 1987, a complaint filed in the
Consumer Forum / Commission shall be adjudicated, within a period of
90days from the date of notice by opposite party and within 150 days if
it requires analysis or testing of commodities. The Consumer Protection
(Amendment) Act, 1993 has introduced a new section, stating that the
forums shall not admit a complaint unless if it is filed within 2 years
from the date of cause of action.
Further, a complainant/opposite party can present his case on his own
without the help of a lawyer. The Consumer Protection (Amendment)
Act, 2002 has increased the claim amount at different levels as,
 National commission - over Rs. 1 crore
 State commission- over Rs 20 lakhs upto Rs. 1 crore-
 District forum - upto Rs. 20 lakhs

DISTRICT FORUM
This shall consists of:
A person who is, or has been or is qualified to be a District Judge, who
shall be its president
Two other members who shall be persons of ability, integrity and
standing and have adequate knowledge or experience of or shown
capacity in dealing with problems relating to economics, law,
commerce, accountancy, industry, public affairs or administration, one
of whom shall be a woman.
Jurisdiction of District Forum
The District Forum shall be jurisdiction to entertain complaints where
the value of goods or services and the compensation, if any, claimed
does not exceed rupees twenty lakhs complaint may be filled with
a District Forum by:

 The consumer to whom such service is provided or is

agreed to be provided.

 Any recognized consumer association, whether the co

nsumer to whom the service is provided or is agreed
to' be provided is a number of such association or not

 One or more consumer, where there are numerous

consumers having the same interest, with the
permission of the district forum, on behalf of, or for
the benefit of, all consumers so interested

STATE COMMISSION
It shall consists of:
1.A person who is or has been judge of a High Court, appointed by
the State Government, who shall be its President
2.Two other members with qualifications and experience (as for
District Forum) within the State.
Jurisdiction of State Commission
 The State Commission shall be jurisdiction to entertain complaints

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

 Revision, petitions against the District Forum.

NATIONAL COMMISSION
This shall consists of:
 A person who is or has been a judge of the Supreme Court to be

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

 Four other members (qualification: As for District Forum/State

Commission), one of whom shall be a woman

The National Commission shall have jurisdiction:
1.To entertain
 Complaints where the {value of goods services &compensation if

any, claimed exceeds rupees one crore; and

 Appeals against the orders if any State Commission

2.To entertain revision petitions against the State Commission

OTHER LEGAL AVENUES AVAILABLE TO
AGGRIEVEDPATIENTS
a) Medical Council of India and Dental

Council of India.

b) Civil Courts.
c) MRTP (Monopolies and Restrictive Trade

Practices Commission).

d) Public Interest Litigation.
e) Sections of Indian Penal Code, 1860

Medical Council of India / Dental Council of India:
The affected person can complain to the Medical Council of India /
Dental Council of India or the state council.
Civil Courts:
 The aggrieved patients can file a case against the doctor for m

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

 The legal remedies are based on the law of Torts; Section 1 -A

of the Fatal Accidents Act, 185536 and the Section 357 of Cr.
PC., 197337. But to avail
it, an aggrieved patient hove to wait for years and spend consid
erable amount of money on litigations. The civil court cases
take 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 of CPA, 1986. Before the advent of

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

Public Interest Litigation (PIL)
 An aggrieved patient can directly approach the High Court or

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

Indian Penal Code and Medical Negligence
 Indian Penal Code, 1860 sections 52, 80, 81,83,88,90,91,92 304-A, 337 and338 contain the

law of medical malpraxis in India.

 A physician can be charged with criminal negligence when a patient dies from the effects

of a drug or other kind of treatment, if it can be proved that the death was the result
of malicious intention, or gross negligence.

 Before the administration of any drug or performance of an operation, the medical man"

is expected to follow the accepted precautions. In such cases, the physician should be
able to prove that he used

 reasonable and ordinary care in the treatment of his patient to the best of his judgment.

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

 The Indian courts have been very careful not to hold qualified physicians criminality

(instances of quacks for criminal negligence are there) liable for patients deaths that are
the result of a mere mistake of judgment in the selection and application of remedies and
when the death resulted merely from on error of judgment or an inadvertent death

DO’S FOR DOCTORS
Mention your qualifications/ training/ experience/ designation on the pr
escription
Always mention date and timing of the consultation.
Mention age and sex of the patient.

Listen attentively. Look carefully. Ask questions intelligently

Always face the patient. Do not stare.

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

Mention "diagnosis under review” until the diagnosis is finally
settled
If the patient/ attendants are erring on any count make a note of it
or seek written refusal preferably in local language with proper
witness.
Record history of drug allergy

Give instruction to the patient in comprehensible terms,

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

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

Update your knowledge and skill from time to time

Always obtain a legally valid consent before undertaking surgical
diagnostic procedure
Always rule out pregnancy before subjecting the uterus to X-ray.
Always read reports carefully and interpret the results
Mention if patient/ attendant is under effect of alcohol/ drugs

WHILE ADMINISTERING ON
INJECTION /DRUG ALWAYS CHECK:
 Name the drug
 Expiry date
 Reconfirm route of administration
 Rate of administration
 Disposable syringe and needle is used

 Don't prescribe without examining the patient, even if he is a

close friend or relative

 Never examine a female patient without presence of female

nurse/attendant

 Do not permit considerations of religion, nationality, race, party,

politics or social standing to intervene between you and your
patient

 Don't smoke while examining a patient
 Don't examine a patient when you are sick, exhauster, or under i

nfluence of alcohol

 Don’t' prescribe a drug pr indulge in a procedure of you cannot

justify its indication

 Don't refuse if the patient/ attendants want to leave against

medical advice.

 Don't deny medical care to a patient with HIV infection/ AIDS.

Observe all necessary precautions

1.True and MCI / DCI approved qualification
 Training & experience of recognized centers are the primary safeguards against any litigation.

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

2.Communication / Interpersonal behavior
 This is the key to doctor-patient relationship. Increasing crowds of patients and improper

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

 The right of patient/relatives to seek explanation about the bill should not be denied. The

whole system of medical establishment should be made courteous, and polite. Special training
should be imported to the staff about dealing with patients/relatives.

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

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

4.Medical/dental ethics and laws
 A through knowledge of ethics and laws is essential for all

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

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

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

Laws and dentistry

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Laws and dentistry