Can a doctor be sued for offering medical advice to a patient over phone
Can a doctor be sued for offering medical advice to a patient over phone?
As far as Medico-Legal Jurisprudence is concerned, the mode of giving advice is irrelevant, as long as the advice given is not harmful to the patient, and no fee is being charged to the patient for the advice.
Where the fee is being charged, the law of contract, Indian Medical Council Rules and Consumer Protection Act will govern the Doctor-Patient Relationship. Thus, on the phone, it will be the duty of the doctor to ensure that the patient has properly understood the advice given. Therefore, there is scope for imposing liability on the doctor.
Furthermore, if it can be proven that the disease of the patient was such that any responsible and competent doctor would have asked the patient to meet him in person for proper diagnosis or treatment, but neither this, nor any course of action was adhered to by the doctor in question, then a case of medical negligence could be made against him.
Doctors must fully inform their patients about the risks that are involved in any of the proposed medical procedure or treatment. In both medical as well as in legal terminology, this is called "informed consent." If a doctor does not get informed consent from a patient, and the patient is injured, in the treatment, then the patient has the grounds to sue the doctor for medical malpractice.
As a doctor, it is the doctor's responsibility to give his patient all information about the particular treatment or procedure so that the patient can decide as to whether or not he/she wants to undergo the treatment, procedure, or test. This process of providing essential information to the patient and getting the patient's agreement (or consent) to a certain medical procedure or treatment is called informed consent.
The doctor must discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks he or she faces. This is up to the doctor to decide as to how he tells this to his patient.
Whether or not a patient gave his or her informed consent to a treatment is crucial in the law of medical malpractice. If a doctor does not get a patient's informed consent, and the patient would not have opted for the treatment if he or she knew about the risks, the patient may be able to sue the doctor for medical malpractice.
Hence a doctor cannot be sued if he tries to offer medical advice to patient via phone. But the doctor should ensure that the patient has understood the medical advice properly.
The foundation that is laid down between the patient and the doctor is of trust and nothing else. A medical practitioner is always under an oath that he will never give wrong medical advice to any of his patient, whether the advice was documented or a casual exchange of information between the doctor and the patient. It also depends on the risk factor i.e. is the doctor already aware of the medical history of the patient? If yes, then the fiduciary relationship is already there. Experts always advice that if the patient calls for a medical advice over the phone then the doctor should always and stress should be given on “always” call the patient to his office and diagnose him well and then write the prescription. Without carefully checking all the symptoms of the patient, a doctor should never give an undocumented form of advice to the patient or even to his near and dears who are calling him for the advice as otherwise doctor can be held liable for giving such an advice even without diagnosing the patient.
In the end I would like to say one thing the where ever the doctor goes, even at a party or if he gets a call from a patient, the doctor is only the one who carries all the responsibility as well as the liability over his head. Therefore, it is advised that if any doctor gets a call from the patient the he should immediately say that “please come and meet me at my office”. So that, you are spared from giving wrong advice to the patient.
Offering medical advice over the phone is the same as offering medical advice in person, since a "doctor-patient relationship" is created. There is nothing stopping a doctor from advising a patient to pursue a particular cure or therapy, or to seek out a specialist, over the phone. However, if he advises an operation or other cure for a serious condition, or if he is in doubt over the nature of the patient's condition, he should first examine the patient. If he prescribes medicine, such prescription should be in writing, and contain the pertinent details of the medicine. A doctor cannot be sued for the advice he gives provided he acts with due care and in accordance with practices recognised as proper by the medical community. However, before carrying out any operation, the doctor must obtain the written consent of the patient or his/her spouse or guardian, as the case may be. Again, advising or obtaining consent for an operation may be accompanied with information as to the risks, consequences, alternatives, etc at the descretion of the doctor, but he cannot be sued for failing to give such information so long as he follows due care, etc as mentioned above.
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