Dr M C Gupta, a doctor turned lawyer, provides medico-legal opinion on a frequently asked question, especially after the recent murder of a doctor in Chennai, if a non-surgeon doctor can perform surgery.
Dr Gupta holds an MD (Medicine) from All India Institute of Medical Sciences (AIIMS), an LLB from Delhi University and LLM from Kurukshetra University. He has served as a faculty member at AIIMS for 18 years and as professor and dean at the National Institute of Health and Family Welfare. Currently, Dr Gupta is a practising advocate with health and medical law as the area of special interest. He is a member of the Supreme Court Bar Association and Indian Law Institute.
“Sometimes an MBBS (or even a psychiatrist or anaesthetist) working in a government hospital may develop expertise in surgery during the course of duties assigned to him. What are the legal aspects of an MBBS doctor or a psychiatrist or an anaesthetist performing a surgery?” — Balaji Bharadwaj
Dr Gupta Comments:
1) An MBBS is a graduate in surgery and hence he cannot be legally denied the right to perform surgery. However, law operates not in vacuum but in a real situation with respect to time, place and person. Certain surgeries could be validly performed in a remote place where there is no surgeon available to alleviate the suffering of people, especially in emergency, but yet would not be expected to be done by an MBBS where qualified surgeons are easily available.
2) No hard and fast rule can be made applicable in all situations. However, I suggest the following guidelines would seem appropriate:
a) An MBBS doctor can undertake those surgeries about which he has been taught/trained in his MBBS course and in which he is experienced.
b) He should preferably not undertake surgery involving general anaesthesia.
c) He should not routinely hold out as a surgeon, especially when a qualified surgeon is available in the area.
d) Relaxation in the above norms may be permissible in emergencies where it is a question of saving life.
3) Attention is drawn to the following guidelines issued by the Andhra Pradesh Medical Council regarding surgery that may be performed by MBBS doctors.
What Can an MBBS Doctor do?
(1) He can do all the Minor Surgical Procedures for which he is trained in MBBS Course and Housemanship.
(2) He can do Deliveries and its related procedures as trained.
(3) He can do National Programmes like Tubectomies & Vasectomies.
(4) In emergencies if a qualified surgeon is not available in the near vicinity as a life savings measures he can do first aid and a Surgical Procedure based on his experience.
(5) He should not do Elective Major Surgical procedures and the care should be taken to refer to a nearby Hospital where a Surgeon/Gynaecologist is available.”
4) As regards performing surgery by an MBBS or an anaesthetist or a psychiatrist while in government service under orders of his superiors in a government set up, the doctor concerned would escape legal liability if he has given in writing and under acknowledgement to his superiors a representation on the following lines: “Sir, I am not a surgeon but I am being given surgical duties for which I may be held legally incompetent. This is for your information and necessary action including sponsoring me for further studies in surgery.”
5) An MBBS doctor or an anaesthetist or a psychiatrist in private practice should not, in general, perform surgeries routinely, especially those that are major in nature, and should not hold out himself as a surgeon. He may, using proper discretion, perform surgeries in remote places where no surgeon is available or when there is an emergency situation.
6) In Surinder Kumar (Laddi) and another Vs. Dr Santosh Menon and others 2000;(III) CPJ 517, the Punjab State Consumer Commission held that there is no bar against an MBBS performing a Caesarean section merely on the ground that the doctor does not have a qualification in Gynae-Obs (Gynaecology & Obstetrics).
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