Dr K K Aggarwal
President Confederation of Medical Associations of
Asia and Oceania, HCFI, Past National President IMA, Chief editor Medtalks
787: Round Table
Expert Meet of Medical Liability in COVID Era
May
2, 2020 , 11am- 12 noon
Participants
Dr
KK Aggarwal, President CMAAO
Dr
Rajan Sharma, National President IMA
Dr
RV Asokan
Dr
Jayakrishnan Alapet
Dr
Girish Tyagi
Dr
Ashok Gupta
Dr
PN Arora
Dr
Narasinga Reddy Toutireddy
Dr
Raman Kapur
Dr
Marthanda Pillai
Shobha
Mishra Ghosh
Prof
Mahesh Verma
Dr
Omkar Gokhale
Dr
Shiv Kumar Utture
Dr
Anoop Misra
Dr
Ambrish Mithal
Dr
Narottam Puri
Dr
LK Bharti
Dr
NK Pandey
Dr
Ashok Gupta
Dr
Alok Roy
Dr
Harsh Mahajan
Dr
Gangadhar Rao
Dr
Mohsin Wali
Dr
Suneela Garg
Dr
AK Agarwal
Dr
Sudhanva Kariganoor
Dr
Angeli Misra
Dr
Alexander Thomas
Dr
DR Rai
Dr
Arnab Gupta
Dr
Gyani Girdhar
Dr
JA Jayalal
Dr
Naveen Malhotra
Dr
Prabhakara GN
Dr
Jaya Dhaka
Rachnna
Dr
Atul Pandya
Dr
Mahima Gupta
Dr
NK Pandey
Ashok
Grover
Mini
Thomas, The Week
Sanjay
Prasad
Dr
Ganesh K Mani
Dr
Maulik Vyas
Dr
Apurva IE
Dr
Shashank Joshi
Ms
Ira Gupta
Dr
K Kalra
Naina
Aggarwal
Saurabh
Aggarwal
Dr
Sanchita Sharma
Experts
Justice
AK Sikri, Retd. Supreme Court Judge
Mr
Mukul Rohatgi, Former Attorney General for India
Excerpts
Acts
currently applicable during the Covid pandemic are the Disease Management Act,
2005 at the national level and the Epidemic Diseases Act, 1897 at the state
level.
The
Epidemic Diseases Act, 1897 has not been revised till date.
Section
2A of the Epidemic Diseases Act, 1897 states: “When
the Central Government is satisfied that India or any part thereof is visited
by, or threatened with, an outbreak of any dangerous
epidemic disease and that the ordinary provisions of the law for the time
being in force are insufficient to prevent the outbreak of such disease or the
spread thereof, the Central Government may take measures and prescribe regulations
for the inspection of any ship or vessel leaving or arriving at any port in the
territories to which this Act extends and for such detention thereof, or of any
person intending to sail therein, or arriving thereby, as may be necessary.”
It uses the words “dangerous epidemic disease”, but the Act does not define
either “dangerous” or “epidemic”.
Under
Section 4 of Epidemic Act, “no suit or
other legal proceeding shall lie against any person for anything done or in good faith intended to be done under
this Act”. But it’s not clear if medical professionals are covered under
this. Also, the meaning of the words “good faith” needs to be clarified.
The
Disaster Management Act, 2005 defines disaster in Section 2(d) as “a
catastrophe, mishap, calamity or grave occurrence in any area, arising from
natural or man-made causes…”. Covid-19 has been included as a “Notified
Disaster” or as a “critical medical condition or pandemic situation”.
Section
74 of the Disaster Management Act provides immunity from legal process, but
only to “Officers and employees of the
Central Government, National Authority, National Executive Committee, State
Government, State Authority, State Executive Committee or District Authority in
regard to any warning in respect of any impending disaster communicated or
disseminated by them in their official capacity or any action taken or
direction issued by them in pursuance of such communication or dissemination”.
Again, it does not cover healthcare professionals.
Section52
of the Indian Penal Code (IPC) defines good faith as “nothing is said to be done or believed in “good faith” which is done
or believed without due care and attention”.
Section
270 is applicable to Covid, which is “Malignant
act likely to spread infection of disease dangerous to life.—Whoever
malignantly does any act which is, and which he knows or has reason to believe
to be, likely to spread the infection of any disease dangerous to life, shall
be punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both.”
The
United States has come out with legislations granting immunity to HCPs during
Covid-19.
Section
3215 of the Coronavirus Aid, Relief, and
Economic Security (CARES) Act establishes a specific limitation on liability
for "volunteer" health care providers during the COVID-19 emergency
declaration. With certain exceptions, it provides that such providers "shall not be liable under Federal or
State law for any harm caused by an act or omission of the professional in the
provision of health care services" during the COVID-19 public health
emergency. In addition to volunteer status, the services being rendered
must be within the scope of the provider's license (including applicable state
law emergency expansions of scope of practice). Providers
are not protected from liability for harm resulting from the provider's
willful or criminal misconduct, gross negligence, reckless misconduct, or
"conscious flagrant indifference" to the patient's rights or safety.
Further, providers are not protected from claims resulting from care given
while the provider is under the influence of drugs or alcohol.
Another
law in the US, the Public Readiness and Emergency Preparedness (PREP) Act
provides that a "covered
person," including a qualified person who prescribes, administers, or
dispenses "pandemic countermeasures," "shall be immune from suit
and liability under Federal and State law with respect to all claims for
loss covered by, arising out of, relating to, or resulting from the
administration to or the use by an individual of a covered countermeasure"
during a declared disease-related public health emergency.
Besides
these two Federal laws, various states in the US may have provisions that limit
or immunize providers from liability.
Following queries and
concerns of doctors were highlighted during the discussion
1. Definition
of “good faith” mentioned in the Epidemic Disease Act (Section 4), Disaster
Management Act (Section 73) and its implication.
2. Immunity
from legal process”: Disaster Management Act (Section 74) and its implication
3. Are
healthcare professionals covered under Epidemic Act, 1897 and Disaster
Management Act, 2005? If yes, can they take defence of work done under good
faith?
4. Are
healthcare professionals who are not treating COVID-19 patients covered under
Epidemic Act, 1897 and Disaster Management Act, 2005? ? If yes, can they take
defence of work done under good faith? E.g. doctors are not able to attend to
their non-Covid-19 patients properly due to lockdown limitations as many
clinics are closed, patients are afraid to come to hospitals.
5. If answers
to Queries 3 and 4 are “no”, then what are the available remedies and defences
for HCPs? Can the government include HCPs under these two acts by passing some
order or clarification?
6. Can a
separate legislation be enacted by Government of India just like USA giving
immunity to healthcare professionals during COVID period? If yes, then what is
the procedure?
7. What are
the immunities available to healthcare professionals under Epidemic Act, 1897
and Disaster Management Act, 2005 during lockdown period and after that?
8. Can
healthcare professionals be included under Section 74 of the Disaster
Management Act, 2005 and get complete immunity from any liability for any act
during COVID period? If yes, then what is the procedure?
9. Are the
Epidemic Act, 1897 and Disaster Management Act, 2005 applicable till the
lockdown period or till the eradication of COVID-19 from the country?
10. What law
will prevail once Epidemic Act, 1897 and Disaster Management Act, 2005 are
lifted from the country?
11. Will the
Epidemic Disease Act be applicable in Green Zones?
12. Testing: Doctors
have the right to ask for Covid test for patients scheduled for chemotherapy or
non-elective surgery or for non-Covid illness. But, the government says that
hospitals cannot insist on Covid-19 testing as it will be considered a crime. Doctors
themselves need to be tested for Covid-19. Italy has made it compulsory for all
doctors to undergo weekly Covid test and state their positive or negative
status.
Expert Opinion
·
Disaster Management act does not provide
immunity to the medical profession. It provides immunity only to the officials
of the authority mentioned in the section. Likewise, the Epidemic Disease Act
also does not protect the private doctors.. The question of “good faith” and
other questions will arise only when doctors are covered by these Acts.
·
Justice AK Sikri expressed his “pain and
anguish” that doctors themselves are struggling to find ways out to not be
harassed or persecuted by their patients. Under the existing environment today,
doctors need all kinds of protection.
·
Once a case is filed against a doctor, under
ordinary law, he/she will have to defend the complaint and establish that the
action was in good faith and he/she was not negligent. If the doctor has acted
in a certain manner as per the government instructions, this may become a clear
defense.
·
The American laws, not only the Central Act
but also the state acts (Louisiana, Georgia, Maryland, and Tennessee) provide
immunity to doctors from civil and criminal negligence unless they have
wantonly or negligently treated their patients.
·
Just as the government has added a section in
the Epidemic Diseases Act, 1897 by an Ordinance providing for punishment, if
there is an act of violence against doctors and paramedical workers, in the
same way, Section 74 can be amended or a new section can be added at the time
when the Disaster Management Act is in operation by a notification.
·
Just as the issue of violence has been addressed,
this issue has to be addressed. But for that it has to be shown that
unnecessary willful, malicious threats or complaints have been initiated
against doctors during the pandemic.
·
The court does not have the power to direct
the government to pass a law; this is the preserve of the government or the
Parliament. But the Court can make a recommendation to the government to
urgently look into this matter and address/redress the issue. This will be
useful not only in this pandemic but also in future such pandemics or
epidemics.
·
Doctors can and should insist on Covid test
as the result of the test may have an impact on the treatment protocol. For
instance, the surgery, if not an emergency, can be postponed. Also, persons in
contact with the patient need to be quarantined.
·
There should be en masse testing of medical
professionals/paramedical workers for Covid, as they are the ones treating the
patient and so can be carrier themselves. The medical council can forward a
protocol in this regard to ICMR or the government (State or Central).
Further course of
action
Immunity
for medical professionals is the need of the hour in this time of Covid-19.
This is a difficult time. There are going to be mistakes, which are beyond the
control of doctors, since it is a totally new disease. Doctors and other
healthcare workers are at the forefront of this battle to fight Covid-19. Private
healthcare takes care of about 75% of health needs of the country. Doctors and
support staff are facing difficulties on account of contradictory orders of the
government. Guidelines are not clear.
·
In view of this, it was decided to file a
representation to the Prime Minister/Health Minister in this regard citing all
instances of complaints or malicious actions against HCPs along with list of
apparent contradictions and inconsistencies in government directives.
·
If the Government does not respond, then the
petition would be filed in the Supreme Court of India.
·
The draft petition would be first vetted by
Mr Mukul Rohatgi.
·
Consent of all associations and organizations
to be taken individually.
·
Copy of the petition to be marked to the
Board of Governors and all State Medical Councils.
4th May
One
US national plaintiff attorney malpractice firm has been advising the public to
be on the lookout for certain types of medical negligence that could occur during
this crisis and that might be grounds for making a claim:
Alleged
failures of hospitals to prepare for and respond appropriately and timely to
coronavirus patients;
The
negligent failure of hospitals and other healthcare providers to timely
diagnose the coronavirus in patients;
The
negligent failure to take appropriate precautions to prevent or limit the
exposure to and spread of coronavirus among patients not infected;
The
negligent failure to timely and appropriately treat coronavirus patients; and
Negligent
failures that result in the delay of unrelated treatments and procedures that
cause harm to patients.
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