When the pink ribbon is tied on the black advocate robe – Part II

Aaah, so we take it forward from where we left the pink trials? Such an irony right, the color that adorns each nursery when a girl child is ushered in the crib, is perhaps the dreaded color when we think about one of the worst diseases that have come to affect us women in the modern times.

Breast cancer though associated primarily with females, is not completely biased towards them! No even cancer believes in equality!

Though in negligible numbers, it has affected men too. But as still cases of such type of cancer deal affects females prima facie the Medical Council also mandates the following (though a lot of the pointers below are gender neutral):

  1. While examining a female patient, a male doctor should always call for a female nurse/attendant to be present. If no such provision has been made by him, you have a right to refuse being examined by him, till he calls for a female nurse/attendant or any of your female acquaintances to be present.
  2. The above rule also applies for a radiologist while he administers chemotherapy to you or performs any test.
  3. You have a right to treatment and medical services without discrimination based on race, age, religion, national origin, sex, sexual preferences, handicap, and diagnosis, ability to pay or source of payment.
  • To receive the services of translator or interpreter to facilitate communication between you and the hospital’s health care personnel.
  • To give written consent prior to the start of specified non-emergency procedures or treatments, only after a physician has explained in terms that you understand the specific details about the recommended procedure or treatment, the risks involved, the possible duration of incapacitation, and any reasonable medical alternatives for care and treatment.
  • To refuse for medication, after analysing the possible consequences of this decision, except in life-threatening situations and instances when medication or treatment is required by law.
  • To be only included in experimental research only when you give informed, written consent to such participation, or when a guardian provides such consent for an incompetent patient in accordance with law and regulation.
  • To be informed of the hospital’s policies and procedures regarding life-saving methods and the use or withdrawal of life-support mechanisms.
  • To receive sufficient time before discharge to have arrangements made for health care needs after hospitalization.
  • To be transferred to another facility only for one of the following reasons, with the reason recorded in the patient’s medical record:
    a) The transferring hospital is unable to provide the type or level of medical care appropriate for the your needs. or
    b) The transfer is requested by you, or by the patient’s next of kin or guardian when the patient is mentally incapacitated or incompetent.
  • To with courtesy, consideration, and respect for your dignity and individuality.
  • To freedom from physical and mental abuse.
  • To freedom from restraints, unless they are authorized by a physician for a limited period of time to protect you or others from injury.
  • To have physical privacy during medical treatment and personal hygiene functions, such as bathing and using the toilet, unless you need assistance for your own safety.

Efforts by the Indian Government

Though all patients are sought to be treated equally in the eyes of law, cancer patients receive special consideration while travelling as laid down by the Indian Railways. Railways provide 100 per cent concession to cancer patients in sleeper and 3-AC classes. In 2-AC and 1-AC they enjoy 50 per cent concession. A matching concession is also extended to their escorts. There also exists a special quota on a lot of trains for cancer patients.

The accommodation can be provided from general quota, if vacant at the time of booking, or from the cancer patient’s quota if available or from emergency quota of that class, to the extent available.

On confirmation patients and their attendants are issued tickets from general waiting list. However, this facility is not available under tatkal scheme. Further in order to avail the scheme you must have a certificate issued by officer-in-charge of the concerned recognised hospital ready for reference at the time of booking.

Medical Malpractice and Legal Recourse in India

I remember advising a cancer survivor once to file a suit against a doctor who had misdiagnosed her during the early stages of her disease.  She had merely smiled and told me, ‘As if surviving this one battle is not enough emotionally, physically and financially that I’ll subject myself more torture by starting another one’.

Truth in the most pragmatic and practical form, that is what her words came to mean to me then. But that does not mean that each time we let go of people whom we look upon as demi-gods when it comes to survival.

In India medical malpractice is defined to be an act of negligence committed by a medical provider, who is generally a physician in most situations. The law attributes it to be doing something a medical provider of ordinary skill would not have done, or failing to do that which a medical provider of ordinary skill would have done.

The basic 3 components that can be attributed to medical negligence can be said to include:

    • The existence of a duty to take care, which is owed by the defendant (doctor) to the complainant (patient).
    • The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty and
    • Damage, which is both causally, connected with such breach and recognized by the law.

It is an acceptable position of law that if anyone (or more) of the above elements is missing, then there cannot be a valid cause of action for medical malpractice.

The India the laws provide for various instances where an individual may be subject to one of the various forms of medical malpractice whenever he or she seeks the care of a medical provider. Malpractice can be constituted by something as simple as failing to put the rails of a hospital bed in the upright position, to something as complex as improperly performing open heart surgery. A related issue in these cases is whether a patient has provided informed consent (discussed above) to a particular treatment.

Under Indian law, action can be brought against doctors for medical malpractice both before the consumer courts and also before the criminal courts of the country. The Consumer Protection Act of the country clearly lays down that the services rendered to patient by a medical practitioner (except where the service is free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical, would fall within the ambit of services dealt by the Act and hence in case of any malpractice, action can be brought by the patient against the doctor before the Consumer Courts of the land.

With respect to criminal laws existing in the country and applicable to the medical profession imputing liability to doctors and associated medical professionals, the same is dealt under the Indian penal Code under which a complaint against a medical practitioner for alleged criminal medical negligence can be registered and the police can proceed against the accused in accordance with law.

Duties of a patient

It is an accepted jurisprudence that duties and rights go hand in hand and what emerges before and is to be followed is more like the story of what came first the chicken or the egg!

While as mentioned earlier, the primary duty is cast on the doctor to protect your well being and preserve your rights, there are a few duties which are also cast on you as a patient, namely:

  • Responsibility for providing accurate and complete information about medical problems, past illnesses, hospitalizations, medications, pain and other matters related to health conditions.
  • Responsibility for following the treatment plan recommended by those responsible for your care.
  • Responsibility for their actions, if they refuse treatment or do not follow the instructions of the healthcare team.
  • Responsibility for seeing that their bills are paid as promptly as possible (or intimating the doctors or the hospital on a prior basis when the same is not possible) and strictly following hospital rules and regulations.

A small prayer

My uncle jokes that the irony of the medical and legal profession is that we can never really hope that people are without problems for such will lead us to be unemployed.

However, somewhere deep down I do sincerely hope that none of the cancer survivors have to knock the doors of the Court for justice, when the biggest injustice has already been meted out to them by the Almighty! But in case such is unavoidable I hope that the above information stands useful and makes your already tough battle a tad easier.

Hugs and wishes for all the warriors who make India truly the land of the Raani of Jhaansi!

2 Replies to “When the pink ribbon is tied on the black advocate robe – Part II”

  1. My mom is suffering from breast cancer ,ductal caricinoma, stage 4 , my problem here is , her sister in law is not letting my mom leave in peace she is torturing her mental by abusing her n threating her to kill her too, I’m very sacred , I went to police n there were like the case will go in court n u will have to hire a lawyer n now what should I deal with the treatment of mom’s chemo n medicines or lawyers fees n giving time to court , is there any special law for cancer patients pls let me know , your reply is all I’m waiting for .

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