Emedinews:Insights on Medicolegal Issues:Medical Testimony of Doctor in the Court of Law

Do not misrepresent documents/medical literature in the Court of Law

When evidence is read into the record of a trial, only that portion of the document, which validates the information being discussed needs to be read aloud. One paragraph or even one part of a paragraph may be all that is necessary to substantiate the point you are making. Documents must be presented in the words of the author. When you paraphrase evidence, you argue in a circle. Reading the remainder of the document, even if it establishes a context for the evidence, is unnecessary and time–consuming. When a document is cut in a manner, which lends the quoted passage a meaning other than what would be derived from a more complete reading, you are misrepresenting the document. This does not mean, however, that you are responsible for drawing the same conclusions from information as the author of the document.

Drawing a contrary conclusion from passages accurately interpreted does not constitute misrepresentation. The fact that the author of the document reached a different conclusion from the information argues perhaps persuasively against your conclusion. However, you have not misused the evidence.

Emedinews:Insights on Medicolegal Issues:A Doctor is neither a detective nor a curtain between injured/sick alleged criminal and police or judiciary

• The primary and absolutely transparent duty of a doctor/hospital is to provide medical services to sick and injured patient even if he may be an alleged criminal to save his health/limb and life without any discrimination.
• When medical care records are required for judicial/police investigation, they become medico–legal in nature and the same may be required to testify under oath in the court of law by treating doctor.
• The doctor should acquire the habit of making a careful note of all the facts observed by him with exact time and date.
• The doctor should examine the facts which come to his knowledge in his special capacity, draw his conclusions logically and correctly after a detailed consideration of the pros and cons of the case, and elaborate in the Court that interpretation, along with the medical grounds on which it is based.
• Presumption, assumption hypothesis, and mere conclusion on self defined interpretation is not a proof and conjecture is not evidence. The Court has no special medical knowledge. It relies on the medical witness for an opinion and expects him to assist it with his special knowledge and experience in perusal of truth.

Emedinews:Insights on Medicolegal issues:Should a doctor perform CPR in already injured chest patient?

When a person needs CPR or cardiopulmonary resuscitation, this means that he/she is unconscious, not moving and not breathing normally. If this is the case, the person is presumably in cardiac arrest or in a state that justifies cardiopulmonary resuscitation.

• If the person is awake, is breathing normally and therefore does not appear to need CPR, it would be correct that chest compressions and CPR may complicate the already damaged chest and further complicate the victim’s injuries.
• As soon as the victim becomes unconscious, is not breathing normally and now appears to need CPR, Emergency Services should be contacted and CPR should be initiated regardless of the injuries of the patient.
• If the person needs CPR, this means that they are clinically dead. If the victim does not receive CPR, they will simply graduate to permanent death.
• This is why, regardless of the chest injury, if the person is "dead" or in need of CPR, compressions are to be given per the American Heart Association (AHA) guidelines even if the complications could include those of punctured lungs, lacerated organs or bruised/punctured heart muscle. These injuries must be recorded in the clinical sheet.
• This would be based on the theory that a person in need of CPR is already dead and will not be harmed more even if there are negative side effects from providing chest compressions. If a person remains dead, surgery is not an option but if the person is resuscitated with CPR, and alive at the hospital, we have an opportunity to fix the injuries that may have been aggravated by doing CPR.

Emedinews:Insights on Medicolegal Issues:Doctor must record dying declaration in terminally injured patient

Under section S.32 of Indian Evidence Act a written or oral statement of an injured/sick dying person is called dying declaration, it must be recorded by the doctor attending an injured/sick person/patient who is dying/under medical expectation of death as a result of some unlawful act, relating to the material facts of cause of his death or bearing on the circumstances. The dying declaration/statement carries legal importance to identify the offender or to clear innocent persons

• If there is time, the doctor should call the area Magistrate to record the statement/declaration. The doctor should certify that the person is conscious and his mental faculties are normal at the time of recording the statement. If the victim is very serious, and there is no time to call a Magistrate, the doctor should take the declaration in the presence of two witnesses particularly any attendant of other admitted patient. As far as possible, choosing nurses and paramedics as witness should be avoided to maintain the legal credibility of declaration. While recording the dying declaration, oath is not administered, because of the belief that the dying person will tell the truth. The statement should be recorded in the man’s own words, without any alteration of terms or phrases. Leading questions should not be put.
• The declarant should be permitted to give his statement without any undue influence, outside prompting or assistance. If a point is not clear, question may be asked to make it clear, but the actual question and the answer received should be recorded. It should then be read over to the declarant, and his signature or thumb impression is taken.
• The statement made must be of fact and not opinion. If the declaration is made in the form of an opinion or conclusion, questions should be asked by the recorder to bring out the facts that are the basis for the conclusion. While recording the statement, if the declarant becomes unconscious, the doctor recording it must record as much information as he has obtained and sign it. If the dying person is unable to speak, but is able to make signs in answer to questions put to him his can be recorded and it is considered as a "verbal statement".
• The doctor and the witness should also sign the declaration. If the statement is written by the declarant himself, it should be signed by him, the doctor and the witnesses. The declaration is admissible not only against an accused that killed the declarant, but also against all other persons involved in the same incident which resulted in his death.
• The declaration is sent to the Magistrate in a sealed cover. It is produced at the trial and accepted as evidence in case of death of the victim in all criminal and civil cases, where the cause of death is under enquiry. The person recording the declaration will have to give evidence in the Court of law under oath to prove it. If the declarant survives, the declaration is not admitted but has corroborative value, and the person is called to give oral evidence under oath.
• In India, if the declarant is in a sound state of mind at the time of making the declaration, it is admissible in Court as evidence, even if the declarant was not under expectation of death at that time.

Emedinews:Insights on Medicolegal Issues:Doctor & law

A doctor is neither a detective nor a curtain between injured/sick alleged criminal and police or judiciary.

• The primary and absolutely transparent duty of a doctor/hospital is to provide medical services to sick and injured patient may be an alleged criminal, to save his health/limb and life without any discrimination.
• When the medical care records are required for judicial/police investigation, the records becomes medicolegal in nature and the same may be required to be testified under oath in the court of law by the treating doctor.
• The doctor should acquire the habit of making a careful note of all the facts observed by him with exact time and date.
• The doctor should examine the facts which come to his knowledge in his special capacity as a medical man, draw his conclusions logically and correctly after a detailed consideration of the pros and cons of the case, and elaborate in the Court that interpretation, along with the medical grounds on which it is based.
• Presumption is not proof, and conjecture is not evidence. The Court has no special medical knowledge. It relies on medical witness for an opinion and expects him to assist it with his special knowledge and experience in perusal of truth.
• Presumption, assumption hypothesis, and mere conclusion on self defined interpretation are not a proof, and conjecture is not evidence.

Emedinews:Insights on MEdicolegal Issues:Medical Testimony of Doctor in the Court of law

Medical literature/document produced as evidence in the court of law must be a published one. For a document to serve as legitimate evidence in a trial/debate, it must exist in the public domain i.e. the document must potentially be available to any debater researching the topic or lawyer/interested party of cross examining side. Unpublished documents are privileged information, and using such information gives the doctor an unfair advantage. Academic debate does not have a discovery rule. The only opportunity your opponents have to examine your documents prior to a trial/debate is to have found the documents during their own research. That they may not have taken the opportunity to do so, or did not discover a document, does not obviate the rule. The advent of the Internet has created a new form of publication – electronic documents like this e–medinews. Electronic documents are accepted as published if they are accessible by the general public. Thus, electronic files to which other debaters would be denied access are not published. However, files and documents which other debaters may access, even if they have no subscription to a commercial service to do so, satisfy the publication rule.

Emedinews:Insights on Medicolegal Issues:Issuance of death Certificate by Doctor

Coma is a clinical symptom and not a cause of death

The certificate of death is always issued by doctor as an honor/respect to the deceased person without any fee. In accordance with the Registration of Births and Deaths Act 1969, the registration of deaths is now compulsory throughout India. The doctor must write his registration number in the Death Certificate and a register for such information should be maintained with his clinic/hospital and a copy/information of death must/mandatorily be sent immediately to the birth and death registration office. It is essential that the cause of death must be documented/determined before lawful disposal of the deceased body by the doctor. The death certificate also provides the exact cause of death for statistical purposes. The cause of death is recorded according to international conventions; the sequence being that adopted by the World Health Organization. Thus, the international medical Certificate of the Cause of Death consists of two parts:

• Part I: Records (a) the immediate cause, and (b) the morbid conditions, if any, giving rise to the immediate cause. Thus (a) must be due to (b). When (b) is due to other causes, it should be mentioned in (c). The basic pathological condition is that on the lower–most line and this is the one that is used for statistical purposes.
• Part II: records any other significant condition contributing to death, but not related to the immediate cause of death. The underlying cause of death is defined as the disease, which initiated the train of morbid events leading directly to death for instance; a patient may die primarily from myocardial infraction due to coronary artery disease. These should be placed in parts (a) and (b) of part I as the myocardial infraction due to coronary artery disease (or coronary insufficiency). Similarly, it can be certified that the patient died of cerebral hemorrhage due to hypertension.

However, if the patient also suffers from diabetes, it should be entered in part II as it does not have a direct contributing role to the immediate cause of death. It is incorrect to write ‘heart failure ‘or ‘cardiac failure’ or’ cardiopulmonary arrest’ without mentioning the underlying pathological cause, which might be’ coronary artery disease’ or ‘rheumatic valve lesions’ or’ senile myocardial degeneration’. It should be remembered that everyone dies of ‘cardiopulmonary arrest’ or’ heart failure’ or ‘cardiac failure’, which simply means cessation of circulation and respiration leading to somatic death.

The modes of death, e.g., cardiorespiratory failure, or asphyxia should not be recorded as the cause of death, unless qualified as explained here, for instance, ‘coma’ is a clinical symptom and not a cause of death. It should be used with proper cause such as crush injury of head or meningitis etc.

The terms like angina, cancer, tumor apoplexy congestion’,’ debility’, ‘asthenia,’ organic disease toxemia, sepsis and hemorrhage are sign/symptoms of the disease and not a pathological condition. It is pertinent for medical professional to note that a death certificate requires the underlying pathological cause and not clinical manifestations or modes of death.

Emedinews:Insights on Medicolegal Issues:Doctor is a professional of Medical science with neutrality and impartiality

• When a doctor appears as medical witness in the court of law, he/she must strive to achieve respect, good medical understanding and the most important thing is credibility before the honorable judge as well legal counsel of both sides.
• Doctor must give the appearance of being independent medical witnesses of truth based on medical science with neutrality, impartiality and authentic characteristics. Vagueness and theory has no place in legal medicine.
• Vagueness and theory have no place in legal medicine hence a medical witness, should remain a man of science; you have no victim to avenge, no guilty person to convict and no innocent person to save.
• A doctor must bear testimony within the limits of medical/allied science". The attitude of a medical/clinician/scientific witness should be the same whether he is called by the defense or prosecution. The doctor really testifies neither for nor against the prosecution or the defense. The doctor’s expertise is in the application of science to a legal controversy and the proper interpretation of scientific findings.
• A doctor’s sole obligation is to present the truth as he sees it, adding nothing, withholding nothing and distorting nothing mean revealing whole truth.
• A doctor should not concern himself with the previous character of the accused or with other evidence in the case.
• A doctor should not be influenced in any way by emotional consideration, such as sympathy or antipathy. The doctor must be honest, the honesty gives the confidence with enlightened conscience and the success in the court of law depends upon your confidence.
• Honest perusal of medical science, confidence and medical ethics are tripods of this noble medical professional.

Emedinews:Insights on MEdicolegal Issues:Should a doctor perform CPR in a patient with already injured chest?

When a person needs CPR or cardiopulmonary resuscitation, this means that he/she is unconscious, not moving and not breathing normally. If this is the case, the person is presumably in cardiac arrest or in a state that justifies cardiopulmonary resuscitation.

• If the person is awake, is breathing normally and therefore does not appear to need CPR, it would be correct that chest compressions and CPR may complicate the already damaged chest and further complicate the victim’s injuries.
• As soon as the victim becomes unconscious, is not breathing normally and now appears to need CPR, Emergency Services would be contacted and CPR would be initiated regardless of the injuries of the patient.
• If the person needs CPR, this means that they are clinically dead. If the victim does not receive CPR, they will simply graduate to permanent death.
• This is why, regardless of the chest injury, if the person is "dead" or in need of CPR, compressions are to be given per the American Heart Association (AHA) guidelines even if the complications could include those of punctured lungs, lacerated organs, or bruised/punctured heart muscle. These injuries must be recorded in clinical sheet.
• This would be based on the theory that a person in need of CPR is already dead and will not be harmed more even if there are negative side effects from providing chest compressions. If a person remains dead, surgery is not an option but if the person is resuscitated with CPR, and alive at the hospital, we have an opportunity to fix the injuries that may have been aggravated by doing CPR.

Emedinews:Insights on Medicolegal Issues:Legal medicine: Doctor in witness box under oath

Medicolegal Update
(Dr Sudhir Gupta, Additional Prof, Forensic Medicine & Toxicology, AIIMS)

When a doctor is called as a witness in the Court of Law, Oath has to be administered before he tenders his evidence.

A doctor as witness while administered the oath has to repeat, while standing… ‘the evidences which I shall give to the honorable court shall be the truth, the whole truth and nothing but the truth, so help me the almighty God".

If a Doctor wishes to give his evidences on solemn affirmation, he has to say that I solemnly affirm that the evidences which I shall give to the honorable court shall be the truth, the whole truth and nothing but the truth. The main objective of the oath is to find truthful statement and if any doctor/witness speaks a lie after administration of oath he is liable for punishment of perjury a criminal offence in our country as well as abroad. The Medical opinion of the doctor must be supported by reason/science and it is the reasons and not ipse dixit which is of importance in assessing the merit of the doctor’s opinion in the court of law.

Emedinews:Insights on Medicolegal Issues:Medical Testimony of Doctor in the Court of law

A doctor should not be dogmatic about his opinion, and lawyers also should not expect him to be so. He should be reasonable in his opinions and should not overstate the likelihood of a relationship between cause and effect. The doctor should be ready to defend every finding and conclusion on the report on clinical and scientific grounds in the court of law. He should be aware of professional and scientific viewpoints which might differ from his, and should be familiar with the latest scientific literature in relation to the subject involved. For the purpose of illustrating and clarifying his testimony in the court of law, the medical expert may employ photographs, maps, diagrams, charts, X–rays, skeletons, models, slides, films, tapes, etc., when they are properly verified. The doctor should avoid talking too much, talking too soon, and talking to the wrong persons. Prejudicial and sensational statements should not be made prior to trial. Courts of law are open to the public and the junior doctors should attend the Courts, where they can follow the proceedings, hear the evidence given by their senior medical colleague as a witness, to familiarize themselves with the procedures of the court of law.

Emedinews:Insights on Medicolegal Issues:Should a doctor perform CPR in already injured chest patient?

When a person needs CPR or cardiopulmonary resuscitation, this means that he/she is unconscious, not moving and not breathing normally. If this is the case, the person is presumably in cardiac arrest or in a state that justifies cardiopulmonary resuscitation.

• If the person is awake, is breathing normally and therefore does not appear to need CPR, it would be correct that chest compressions and CPR may complicate the already damaged chest and further complicate the victim’s injuries.
• As soon as the victim becomes unconscious, is not breathing normally and now appears to need CPR, Emergency Services would be contacted and CPR would be initiated regardless of the injuries of the patient.
• If the person needs CPR, this means that they are clinically dead. If the victim does not receive CPR, they will simply graduate to permanent death.
• This is why, regardless of the chest injury, if the person is "dead" or in need of CPR, compressions are to be given per the American Heart Association (AHA) guidelines even if the complications could include those of punctured lungs, lacerated organs, or bruised/punctured heart muscle. These injuries must be recorded in clinical sheet.
• This would be based on the theory that a person in need of CPR is already dead and will not be harmed more even if there are negative side effects from providing chest compressions. If a person remains dead, surgery is not an option but if the person is resuscitated with CPR, and alive at the hospital, we have an opportunity to fix the injuries that may have been aggravated by doing CPR.

Emedinews:Insights on Medicolegal Issues:Doctor must record dying declaration in terminally injured patient

Under section S.32 of Indian Evidence Act a written or oral statement of an injured/sick dying person is called dying declaration, it must be recorded by the doctor attending an injured/sick person/patient who is dying/under medical expectation of death as a result of some unlawful act, relating to the material facts of cause of his death or bearing on the circumstances The dying declaration/statement carries legal importance to identify the offender or to clear innocent persons

• If there is time, the doctor should call the area Magistrate to record the statement/declaration. The doctor should certify that the person is conscious and his mental faculties are normal at the time of recording the statement. If the victim is very serious, and there is no time to call a Magistrate, the doctor should take the declaration in the presence of two witnesses particularly any attendant of other admitted patient. As far as possible, choosing nurses and paramedics as witness should be avoided to maintain the legal credibility of declaration. While recording the dying declaration, oath is not administered, because of the belief that the dying person will tell the truth. The statement should be recorded in the man’s own words, without any alteration of terms or phrases. Leading questions should not be put.
• The declarant should be permitted to give his statement without any undue influence, outside prompting or assistance. If a point is not clear, question may be asked to make it clear, but the actual question and the answer received should be recorded. It should then be read over to the declarant, and his signature or thumb impression is taken.
• The statement made must be of fact and not opinion. If the declaration is made in the form of an opinion or conclusion, questions should be asked by the recorder to bring out the facts that are the basis for the conclusion. While recording the statement, if the declarant becomes unconscious, the doctor recording it must record as much information as he has obtained and sign it. If the dying person is unable to speak, but is able to make signs in answer to questions put to him his can be recorded and it is considered as a "verbal statement".
• The doctor and the witness should also sign the declaration. If the statement is written by the declarant himself, it should be signed by him, the doctor and the witnesses. The declaration is admissible not only against an accused that killed the declarant, but also against all other persons involved in the same incident which resulted in his death.
• The declaration is sent to the Magistrate in a sealed cover. It is produced at the trial and accepted as evidence in case of death of the victim in all criminal and civil cases, where the cause of death is under enquiry. The person recording the declaration will have to give evidence in the Court of law under oath to prove it. If the declarant survives, the declaration is not admitted but has corroborative value, and the person is called to give oral evidence under oath.
• In India, if the declarant is in a sound state of mind at the time of making the declaration, it is admissible in Court as evidence, even if the declarant was not under expectation of death at that time.

Emedinews:Insights on Medicolegal Issues:Doctor & law

Doctor is neither a detective nor a curtain between injured/sick alleged criminal and police or judiciary.

• The primary and absolutely transparent duty of a doctor/hospital is to provide medical services to sick and injured patient may be an alleged criminal, to save his health/limb and life without any discrimination.
• When the medical care records are required for judicial/police investigation, the records becomes medicolegal in nature and the same may be required to be testified under oath in the court of law by the treating doctor.
• The doctor should acquire the habit of making a careful note of all the facts observed by him with exact time and date.
• The doctor should examine the facts which come to his knowledge in his special capacity as a medical man, draw his conclusions logically and correctly after a detailed consideration of the pros and cons of the case, and elaborate in the Court that interpretation, along with the medical grounds on which it is based.
• Presumption is not proof, and conjecture is not evidence. The Court has no special medical knowledge. It relies on medical witness for an opinion and expects him to assist it with his special knowledge and experience in perusal of truth.
• Presumption, assumption hypothesis, and mere conclusion on self defined interpretation are not a proof, and conjecture is not evidence.

Emedinews:Makesure: Doctor, this patient has developed acute renal failure (ARF).

Situation: Doctor, this patient has developed acute renal failure (ARF).
Reaction: Oh my God, I forgot that he was on frusemide. I gave him full dose of amikacin.
Lesson: Make sure, before calculating the dose of aminoglycoside (amikacin) that frusemide and other loop diuretics, which enhance its nephrotoxicity are not being given.