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Dr K K Aggarwal, President CMAAO, HCFI, Past National President IMA, Chief editor Medtalks 05 May 2020
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 of India
Excerpts
Acts currently applicable during the COVID-19 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 Diseases 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.
Section 52 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" healthcare 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 providers license (including applicable state law emergency expansions of scope of practice). Providers are not protected from liability for harm resulting from the providers willful or criminal misconduct, gross negligence, reckless misconduct, or "conscious flagrant indifference" to the patients 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
Expert Opinion
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.
Dr KK Aggarwal
President CMAAO, HCFI and Past National President IMA
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