Law Commission Report
201St Report On Emergency Medcal Care To Victims Of Accidents And During ...
LAW COMMISSION OF INDIA
201ST REPORT
ON
EMERGENCY MEDICAL CARE TO VICTIMS OF
ACCIDENTS AND DURING EMERGENCY MEDICAL
CONDITION AND WOMEN UNDER LABOUR
( Draft Model Law Annexed )
AUGUST 2006
2
JUSTICE M. JAGANNADHA RAO LAW COMMISSION OF INDIA
CHAIRMAN SHASTRI BHAWAN
NEW DELHI-110001
TEL: 23384475
FAX: 23073864, 23388870
E-MAIL: [email protected]
RESIDENCE: 1, JANPATH
NEW DELHI-110011
TEL: 23019465
F.No.6(3)125/2006-LC(LS) 31st August, 2006
Dear Shri Bhardwaj Ji,
Sub: 201st Report on "Medical Treatment after Accidents and During
Emergency Medical Condition and Women in Labour".
The Supreme Court of India as long back as 1989 observed in
Parmanand Katara v. Union of India AIR 1989 SC 2039 that when accidents
occur and the victims are taken to hospitals or to a medical practitioner, they
are not taken care of for giving emergency medical treatment on the ground
that the case is a medico-legal case and the injured person should go to a
Government Hospital. The Supreme Court emphasized the need for
making it obligatory for hospitals and medical practitioners to provide
emergency medical care. This is not the only reason for not attending on
injured persons or persons in a medical emergency, for sometimes such
persons are turned out on the ground that they are not in a position to make
payment immediately or that they have no insurance or that they are not
members of any scheme which entitles them to medical reimbursement.
The Supreme Court reiterated its views in Paschim Banga Khet Mazdoor
Samithi v. State of West Bengal, 1996 (4) SCC 37 and National Consumer
Redressal Commission has also decided in like manner in Pravat Kumar
Mukerjee v. Ruby General Hospital (25.4.2005). The Law Commission
has, therefore, taken up the subject suo motu in view of the observations of
the Supreme Court in Parmanand Katara.
3
Indifference towards victims of accidents and those in emergency
medical conditions and even women under labour who are about to deliver
is not peculiar to India but is prevalent in other countries also. In the
United States, there is a statute called EMTALA (Emergency Medical
Treatment and Labour Act) which was enacted by introducing it in 1986
into the Consolidated Omnibus Budget Reconciliation Act, 1985 (COBRA).
This Act is also known as the Patient Anti-Dumping Act. It imposed a
mandatory duty on hospitals to give medical treatment to patients in
emergency medical condition and women under labour, failing which the
defaulter can be punished under the criminal law. Under that law, a
hospital must screen and stabilize such persons and then provide emergency
medical treatment. After screening, if the hospital has no facilities, it must
transfer the person to another hospital having necessary facilities. In this
Report, we have adopted several provisions of EMTALA and made suitable
changes to suit our conditions.
We have provided that no hospital or medical practitioner shall refuse
to provide emergency medical care to victims of accidents or those in
emergency medical condition on the ground that it is a medico-legal case or
that the person is not able to pay immediately or that he has no medical
insurance or other reimbursement facilities. If they refuse without
justifiable reason, that will be an offence.
Hospitals and medical practitioners have to initially screen the
persons to decide if the persons require emergency medical treatment. If
they do not require such treatment, the further provisions of the Act will not
apply. If it is determined that the persons require emergency medical
treatment, first they have to be stabilized and thereafter, they must be given
treatment. If the hospital or medical practitioner does not have facilities
for screening, stabilization or emergency medical treatment, the persons
have to be transferred to another hospital or to a medical practitioner having
facilities. As to what safeguards have to be taken while making the
transfer, as to calling for the services of an ambulance or other vehicle, as to
how the persons should be taken care of during transit, all these matters are
provided in detail in the Bill annexed to the Report. The hospitals and
medical practitioners have to maintain registers as to screening,
stabilization, treatment or transfer.
4
We have also provided that the States must publish a scheme for
reimbursement of expenditure incurred by hospitals, medical practitioners
or for ambulances and the States must allocate separate funds for this
purpose. The duty of the States in this behalf can be traced to Art. 21 as
well as to Directive Principles of State Policy enunciated in the Constitution
of India.
We have prepared the Report annexing a Model Bill to be enacted by
the States as we are aware that the subject of 'hospitals' falls within Entry of
State List, Seventh Schedule of the Constitution and, therefore, it will be for
the State Legislatures to enact law. The Model Bill, if passed by the States,
will also apply to medical practitioners incidentally.
A law to compel hospitals and medical practitioners to attend on
victims of accidents those in emergency medical condition and women
under labour is one of urgent necessity.
We are sure that upon implementation of the Report and the Bill by
the States, the huge gap in the law in this behalf will be legislatively
plugged.
Yours sincerely,
(M. Jagannadha Rao)
Shri H.R. Bhardwaj
Union Minister for Law and Justice
Government of India
Shastri Bhawan
New Delhi.
5
INDEX TO CONTENTS
Chapter Title Page
I Introductory 3-
11
II Current state of emergency medical
care and laws in India 12 - 27
III Emergency Medical Care procedures
in Hospitals in other jurisdictions 28 - 52
IV Ambulance Services in other 53 - 76
Jurisdictions
V Recommendations for Monitoring
Medical Care by Hospitals and
Medical Practitioners 77 - 97
Annexure - Model Law 98 - 111
6
Chapter I
Introductory
The Law Commission of India has taken up the subject of
'Emergency Medical Care to Victims of Accidents' and other Emergencies'
in the light of the observations of the Supreme Court of India in
Paramanand Katara vs. Union of India: AIR 1989 SC 2039 and in Paschim
Banga Khel Mazdoor Samiti vs. State of West Bengal: 1996(4) SCC 37
regarding the refusal of hospitals to grant emergency relief to patients who
are injured in accidents and are in emergency medical condition. There are
also certain judgments of the National Consumer Redressal Forum in this
behalf.
The Commission is aware of the ground reality that in spite of the
observations of the Supreme Court and certain provisions of the Motor
Vehicles Act, 1988, it is a fact of life that there is no proper pre-hospital
medical care and that private hospitals and medical practitioners who are
nearest to the place of accident refuse to admit victims even for emergency
medical care, on the plea that the cases are medico-legal cases and they
direct the victims to go to government hospitals, howsoever far they may be.
Some private hospitals refuse purely on monetary grounds, if the victim is
either poor or is not immediately in possession of funds.
The medical literature on the subject states that the 'GOLDEN
HOUR' is the first hour immediately after the accident in which 'emergency
7
medical care' is necessary and most victims die if no such care is available
or is not given soon after the accident. The purpose of emergency medical
care is to 'stabilize' the patient and this, unfortunately, is not done.
In the public interest case filed in the Supreme Court on the need for
emergency care of victims of accident, the Supreme Court of India stated in
Parmand Katra v. Union of India : AIR 1989 SC 2039 as follows:
"Every injured citizen brought for medical treatment should
instantaneously be given medical aid to preserve life and thereafter
the procedural criminal law should be allowed to operate in order to
avoid negligent death. There is no legal impediment for a medical
professional when he is called upon or requested to attend to an
injured person needing his medical assistance immediately. The
effort to save the person should be the top priority not only of the
medical professional but even of the police or any other citizen who
happens to be connected with the matter or who happens to notice
such an incident or a situation."
"Preservation of human life is of paramount importance. That
is so on account of the fact that once life is lost, the status quo ante
cannot be restored as resurrection is beyond the capacity of man. The
patient whether he be an innocent person or be a criminal liable to
punishment under the laws of the society, it is the obligation of those
who are incharge of the health of the community to preserve life so
that the innocent may be protected and the guilty may be punished.
Social laws do not contemplate death by negligence to tantamount to
legal punishment. A doctor at the Government hospital positioned to
8
meet the State obligation is, therefore, duty bound to extend medical
assistance for preserving life. Every doctor whether at a Government
hospital or otherwise has the professional obligation to extend his
services with due expertise for protecting life. No law or State action
can intervene to avoid/delay the discharge of the paramount
obligation cast upon members of the medical profession. The
obligation being total, absolute and paramount, laws of procedure
whether in statutes or otherwise which would interfere with the
discharge of this obligation cannot be sustained and must, therefore,
give way. Every doctor should be reminded of his total obligation and
be assured of the position that he does not contravene the law of the
land by proceeding to treat the injured victim on his appearance
before him either by himself or being carried by others. Zonal
regulations and classifications cannot also operate as fetters in the
process of discharge of the obligation and irrespective of the fact
whether under instructions or rules, the victim has to be sent
elsewhere or how the police shall be contacted, the guideline
indicated in the 1985 decision of the Committee on Forensic
Medicine (set up by the Ministry of Home Affairs of the Government
of India) is to become operative."
9
"It is expected of the members of the legal profession which is
the other honourable profession to honour the persons in the
medical profession and see that they are not called to give
evidence so long as it is not necessary. It is also expected that
where the facts are so clear it is expected that unnecessary
harassment of the members of the medical profession either by
way of requests for adjournment or by cross examination
should be avoided so that the apprehension that the men in the
medical profession have which prevents them from discharging
their duty to a suffering person who needs their assistance
utmost is removed and a citizen needing the assistance of a
man in the medical profession receives it."
In Paramanand Katara v. Union of India 1989 SC 2039, the Supreme
Court observed that,
"every injured citizen brought for medical treatment should
instantaneously be given medical aid to preserve life and thereafter
the procedural criminal law should be allowed to operate in order to
avoid negligent death" ......
"It is further submitted that it is for the Government of India to
take necessary and immediate steps to amend various
provisions of law which come in the way of government
doctors as well as other doctors in private hospitals or public
hospitals to attend to the injured/serious persons immediately
10
without waiting for the police report as completion of police
formality. They should be free from fear that they would be
unnecessarily harassed or prosecuted for doing their duty
without first complying with the police formalities. It is further
submitted that a doctor should not feel himself handicapped in
extending immediate help in such cases fearing that he would
be harassed by the police or dragged to court in such a case. It
is submitted that Evidence Act should also be so amended as to
provide that the doctor's diary maintained in regular course by
him in respect of the accident cases would be accepted by the
courts in evidence without insisting the doctors being present
to prove the same or subject himself to cross-
examination/harassment for long period of time."
In Paschim Banga Khet Mazdoor Samity v. State of West Bengal,
1996 (4) SCC 37, the Supreme Court further held (para 9) that,
"in this context Shri Dhavan has invited our attention to the recent
developments that have taken in this field in the United States. There
it was found that private hospitals were turning away uninsured,
indigent persons in need or urgent medical care and these patients
were often transferred to, or dumped on public hospitals and the
resulting delay or denial of treatment had sometimes disastrous
consequences. To meet this situation the US Congress has enacted
the Consolidated Omnibus Budget Reconciliation Act of 1986
(COBRA) to prevent this practice of dumping of patients by private
hospitals. By the said Act all hospitals that receive medicare benefits
11
and maintain emergency rooms are required to perform two tasks
before they may transfer or discharge any individual:
(i) the hospital must perform a medical screening examination of
all prospective patients, regardless of their ability to pay;
(ii) if the hospital determines that a patient suffers from an
emergency condition the law requires the hospital to stabilize
that condition and the hospital cannot transfer or discharge an
unstabilise patient unless the transfer or discharge is
appropriate as defined by the statute.
Provision is made for imposing penalties against hospitals or
physicians that negligently violate COBRA. In addition, the
individual who suffers personal harm as a direct result of a
participating hospital's violation can bring a civil suit for damages
against that hospital."
The Supreme Court further held (para 9) that,
"the Constitution envisages the establishment of a welfare State at the
federal level as well as at the State level. In a welfare State the
primary duty of the government is to serve the welfare of the people.
Providing adequate medical facilities for the people is an essential
part of the obligations undertaken by the government in a welfare
State. The government discharges the obligation by running
hospitals and health centers which provide medical care to the person
12
seeking to avail of those facilities. Art. 21 imposes an obligation on
the State to safeguard the right to life of every person."
The Supreme Court referred to the Union of India through an
affidavit) in Paramanand Kumar Katara v. Union of India, AIR 1989 SC
2039 (para 6) as follows, namely, that:
"there are no provisions in the Indian Penal code, Criminal Procedure
Code, Motor Vehicles Act, etc., which prevent doctors from promptly
attending on seriously injured persons and accident cases before the
arrival of police and thus taking into cognizance of such cases,
preparation of FIR and other formalities by the police. However, the
deponent most humbly submits that the respondent shall always abide
by the directions and guidelines given by the Hon'ble Court in the
present case."
Though the life and liberty of a person is very much protected under
Part III of the Constitution (under Art. 21), and though there is a Supreme
Court direction that in all accident cases irrespective of the police
complaint, it is the fundamental duty on the part of the hospitals (where the
injured were taken) to attend on the patients, unfortunately nothing is done
in the matter. As a result, many people have been dying without any care
or attention.
Doctors point out that at least 50 per cent of the fatality can be
averted if the victims are admitted to a hospital within the first one hour.
13
For an accident victim, it is important that he is provided basic first aid
which enables him to survive till he reaches the hospital.
With increasing vehicle population, there is an ever-increasing
number of accidents on our roads. Though our vehicles travel much more
slowly compared to global standards, our accident rate per 1000 vehicles is
among the highest in the word.
The National Consumer Disputes Redressal Commission in Pravat
Kumar Mukherjee vs. Ruby General Hospital & Others (25.4.2005)
declared that a hospital is duty bound to accept accident victims and patients
who are in critical condition and that it cannot refuse treatment on the
ground that the victim is not in a position to pay the fee or meet the
expenses or on the ground that there is no close relation of the victim
available who can give consent for medical treatment. Sumanta Mukherjee,
a 20 year old student was injured when a Calcutta Tramway Corporation
bus hit his motorcycle. The victim was taken to the nearest hospital, the
Ruby General Hospital. The victim was conscious when he reached the
hospital and showed the doctors his medi-claim policy insuring him for Rs.
65,000/-. He assured the hospital that all the bills would be cleared and
requested that treatment be given. The doctors started emergency treatment
but soon demanded Rs.15,000/- from the persons who brought Mukherjee
in. Those persons immediately pooled Rs.2,000/- and informed that they
had contacted the parents of the victim and the parents were willing to pay
the balance. However, since the amount of Rs.15,000/- was not arranged,
the hospitals discontinued treatment. The victim died.
14
The National Consumer Commission while imposing damages in a
sum of Rs.10 lakhs on the Hospital observed that doctors at the hospitals
cannot first demand fees before agreeing to treat the patient and they cannot
also insist on consent of relatives of the victim before starting emergency
treatment. The National Commission relied on Paramanand Katara decided
by the Supreme Court, referred to above. It held that the preservation of
human life is of paramount importance. That is also in consonance with the
Code of Medical Ethics. Recovery of fees can wait, but treatment cannot be
denied.
The Supreme Court in Indian Medical Association vs.
V.S.Shanta:1995(6) SCC. 651 observed that a hospital has generally two
categories of patients, those who pay and those who are treated free, the
free patients acquire the status of consumers because it is deemed that the
treatment to free patients is deemed to be met by the paying patients.
In view of the above judgments of the Supreme Court and the
National Consumer Redressal Forum and the fact that there is no
appropriate legislation on the subject, the Law Commission of India has
taken up the subject suo motu. It proposes to give recommendations and
also a draft Model Bill for the purpose of emergency treatment of victims.
The Bill will cover medical treatment to victims of all types of emergencies
requiring immediate medical help, including motor, fire and other accidents,
which take place during earthquakes, floods, etc. It can also be in respect of
a woman under labour.
15
Chapter II
Current state of emergency medical care and laws in India
Accidents where victims require emergency medical care are not
confined to motor accidents. Emergencies may arise due to motor
accidents, fire, floods, cyclone, earthquakes etc. or even sudden collapse of
victims or emergent deliveries in pregnancy.
Among these, road accidents, however, contribute the largest number
of deaths or injuries. These accidents are increasing at an alarming rate of
3% annually. About 10.1% of all deaths in India are due to accidents and
injuries. A vehicular accident is reported every 3 minutes and a death,
every 10 minutes on our records. During 1998, nearly, 80,000 lives were
lost and 330,000 people were injured. Of these, 78% were persons in the
age group of 20-44 years. A trauma-related death occurs in India every 1.9
minutes. The majority of road accident victims are pedestrians, two wheeler
riders and bicyclists, passengers by motor vehicles, as cited in the paper
(2006) submitted by Ms. Shradd Deshmukh, ILS, Law College, Pune on
'Emergency Medical Aid to Victims', to the Law Commission.
The World Report on Road Traffic Injury Prevention released by the
WHO on World Health Day (7th April, 2004) stated that around 12 lakh
people die each year on account of accidents globally.
In the year 2004, the National Human Rights Commission constituted
an Expert Group to study the existing system for emergency medical care in
16
India to suggest appropriate methods of emergency medical care, which
should be developed by different States/Union-Territories and their essential
components. The Group submitted a Report on 7th April 2004. It reviewed
the existing scenario and the Centralised Accident and Trauma Services
(ATS) and stated that nearly 4 lakh persons loose their lives annually due to
injuries, nearly 75 lakh persons are hospitalized and three and half lakh
persons who receive minor injuries get emergency care at various places in
India. However, present Emergency Medical Support (EMS) in the country
is functioning sub-optimally and requires upgradation. The Report revealed
the lacunae, which exist in the present EMS and made a number of
recommendations for implementation in the short term and in the long-run.
These recommendations were sent to the Health Services and the States and
UTs. (Medical Relief to Road Accident Victims submitted by Devanshi
Nijhara, ILS Law College Pune, to the Law Commission). Text of full
Report of NHRC titled "Emergency Medical Services in India - Present
Status and Recommendations for Improvement" is published in 'Journal of
the National Human Rights Commission' vol.3, 2004.
Government of India has accorded permission for the establishment
of 100 Emergency Accident Relief Centres in all the National
Highways/State Highways at a distance of 50 km each to give timely first
aid to accident victims and to arrange for further medical treatment in
hospitals. This is a unique programme implemented by the Government
jointly with private hospitals, sponsors etc. Out of the 100 centres targeted,
77 are now functioning. Among the centres now functioning, 41 are fully
financed by private hospitals and institutions while the remaining 36 are
partly sponsored by the Government and provide a monthly support of
17
Rs.40,000/- or the actual expenditure incurred by these sponsors (not
exceeding Rs. 40,000/- . During the year 2004, with timely medical aid,
these centres are said to have saved 19,595 lives, treated 6,400 serious
injured cases and 13,195 persons with minor injuries. (ibid, Devanshi
Nijhara's Paper).
The Indian Emergency Journal (Aug., 2005) in its Editorial says:
"The fact is that 80,000 people are killed in accidents every year ....
At least 30 to 45 minutes elapse between the time of a crash and
arrival at hospital. 12 percent of institutions in the trauma-care-sector
have no access to ambulance. Only 50 per cent of the available
ambulance services possess the acute-care facilities needed to keep an
accident victim alive during transportation... And only 4 per cent of
personal staffing these services (have certified formal training).
National Toll Free Number 108 and Ambulances & Identifying
Hospitals: (Hindu dated 4th July 2006, p.12)
"Ambulances with state of art equipment would, it is stated, be
deployed by the National Highways Authority of India (NHAI) for every 50
km on completed stretches of highways entrusted to them.
A national toll-free telephone number 108, will be earmarked (it has
already been done in Andhra Pradesh) to which information on accidents
can be passed on, immediately by passengers or passersby. This was
decided at a meeting to draw a road map to develop an integrated and
18
comprehensive system of trauma care by the Ministry of Road Transport
and Highways and the Ministry of Health and Family Welfare.
The Department of Economic Affairs of the Union Finance Ministry
and the Department of Road Transport and Highways will jointly devise an
insurance-funded payment for the treatment of victims of hit and run
accidents.
Under the scheme, the Health and Family Welfare Ministry will
identify distinct Government Hospitals near the National Highways, for a
time-bound upgradation of trauma care facilities. They would also
standardize the configuration of ambulances with the latest equipment and
draw up qualification for the staff to be deployed on them. This is to ensure
that staff would be able to stabilize the condition of victims prior to
hospitalization.
The meeting was attended by senior officers of the Department of
Road Transport and Highways, National Highways Authority of India,
Ministry of Health and Family Welfare, Department of Economic Affairs,
(Insurance Division) and Ministry of Telecommunication.
The other decisions include gradual extension of deployment of
ambulances to national highways under construction, provision of
ambulances to States, NGOs."
Tamil Nadu State : Road Safety Council, Road Safety Fund & Identification
of hospitals on Highways
19
In Tamil Nadu, Government has established under section 215 of the
Motor Vehicles Act, 1988 and appointed a Road Safety Commissioner who
has various duties including accident relief.
A Road Safety Fund has been created during the year 2000 to fund
Road Safety Activation. Allocations will be made to the fund from
compounding fees and spot fines collected by Transport and Police
Departments. The fund will be administered by a committee chaired by the
Home Secretary.
The Highway Patrol force is proposed to be re-organised by
integrating it with traffic accident posts and linking with Emergency
Accident Relief Centres (EARC). 80 stretches have been identified for
Highway Patrol with 160 teams by the Police Department and a concurrent
team to co-ordinate with the Highway Patrol Team.
The Tamil Nadu Government has identified Emergency Relief
Centres (ARCs) on mega highways in Tamil Nadu and has proposed such
centres for every 50 Kms on the National Highways in the State. These
Centres can be contacted by dialing the toll free number 1033 from any
landline phone near accident spot. A fully equipped ambulance with a
trained paramedic is always on standby to respond to such calls. Victims
are transported to the nearest hospitals free of charge.
A large number of hospitals, about 75 have been identified (see
http://www.tn.gov.in/sta/roads.htm) and 7 more are proposed.
20
The Basic feature of the scheme is to establish 100 emergency ARCs
on National Highways/State highways throughout Tamil Nadu. These
centers are operated by leading hospitals in the area. It is an example of
public-private partnership model. The starting infrastructure like cubicle,
ambulance, etc., is provided by the sponsoring agency/hospital. The local
Regional Transport offices help in getting telephone and water/Electricity
connections. Some Centres are fully sponsored where the full maintenance
cost including salary, fuel, medicine etc. are borne by the sponsoring
hospitals.
Some Centres are sponsored where the staff is provided by the
hospitals and maintenance expenditure is given by the State Government.
To establish any new Centre, preference is given to full sponsorship. In
case there is no sponsor ready to take the full expenditure, Government will
provide the maintenance expenditure. As on 27.1.2004, there are 75
Centres functioning and 25 more Centres are proposed. It is stated that as
on 1.9.2004, 16,326 lives have been saved.
Andhra Pradesh : Satyam EMRI : Toll Free No.108 and Ambulances:
Satyam group who are leaders in computer technology have set up the
Emergency Management Research Institute (EMRI), a non-profit society,
for round-the clock emergency response service.
The Andhra Pradesh Government in conjunction with Ministry of
Communication, Government of India, has allocated the free toll telephone
number 108 (on the model of 911 in USA). 108 will be uniform across the
country. The Hyderabad EMRI Institute's primary objective is to aid the
21
needy in emergencies like Medical, Fire, Accident, etc. by providing timely
attention and support.
The Project was structured to be carried out in phases, to facilitate a
planned rollout of emergency services across the State of Andhra Pradesh.
To start with, the cities of Hyderabad, Secunderabad, Vishakhapatnam,
Tirupathi, Vijayawada and Warangal have these ambulances. This scheme
is stated to be the first of its kind in India.
In the second phase, the scheme will cover most of the towns in
Andhra Pradesh.
Technical challenges include:
System Integration of disparate system of multiple vendors.
Integrating EMRI applications with NORTEL.
It was decided to go ahead with closed Applications Call system and
Contraclosed Dispatching System, to be implemented in the first phase and
co-ordinating it into a Distributor Call -Taking and Distributor Dispatching
System in latter phases, covering the entire State.
The system integrator, which is a company known as GTL, has
studied the business challenges and delivered the following solutions:
(1) All calls for emergency (Hyderabad and other ... locations)
will land in Communication Server 1000 M at Hyderabad Call
Centre through BSNL Network.
22
(2) Communication Server 1000 M and Symposium Call Centre
Server will route the call to the respective available Agent/Call
taker at Hyderabad.
(3) The Call Despatcher, located at Hyderabad shall dispatch the
calls for respective regions using PSTN/Wireless Network.
(4) The agent will be able to transfer or conference a live-call with
a call despatcher.
The Emergency Response Vehicles are fitted with GPS system for
mapping and tracking. EMRI had signed a memorandum of understanding
with the Andhra Pradesh Government for a public-private partnership
initiative.
A Journal called, India Emergency Journal, (a quarterly) was also
released.
There is a proposal to set up an Indian Emergency Management
Authority (IEMA) at the national level to enable State Governments to
operate emergency response centers for promoting and enhancing public
safety by providing legal, financial and administrative policy framework.
It is stated that the call centre on Medchal Road (Byrraju Foundation)
is receiving on an average 2,200 calls per day from various parts of the twin
cities. During the first 45 days, they received more than 1,00,600 calls and
they saved 375 lives. Two-thirds of calles were accident related.
Presently, 40 responders work in three shifts at the call centres.
23
30 Ambulances and an equal number of responders (on two-wheelers)
are stationed at vantage points throughout the city.
The EMRI Ambulances are equipped with automated external
defillibrator with multi-para monitors, oxygen manifold system and 'Bord
Avion' ventilators.
They are equipped with extricate tools, fire extinguishers and rescue
blankets to help the victim.
Current Legal Framework:
So far as current legal framework is concerned, in spite of the fact
that rash and negligent driving of a motor vehicle falls within the scope of
sec. 304-A of the Indian Penal Code, 1860 where imprisonment may go
upto 2 years accidents due to negligent driving of motor vehicles have not
stopped. Of course if it amounts to culpable homicide or murder under
section 299 read with section 300, the punishment under sections 302 or
304 may extend to life imprisonment or 10 years.
Initially, in 1978, a Bill was introduced in the Rajya Sabha and was
passed on 23.2.1978 which referred to amendment of section 304-A. It not
only recommended increase in punishment from 2 years to 5 years, it
proposed a new section 304B for drivers who runaway without informing
police within a reasonable time, that the punishment must be 7 years
imprisonment.
24
This Bill was not passed by the then Lok Sabha on account of its
dissolution.
Later, the Bill was referred to the Law Commission and in the 156th
Report the above amendments were reiterated. So far as section 304B is
concerned, because another section with that number had already been
inserted, the Commission recommended a change in the number as section
304B.
The Motor Vehicle Act, 1988 contains a whole chapter on "Accident
Compensation" which includes a provision for no fault liability, currently
fixed at Rs.50,000/- if death is caused or Rs.25,000/- if it causes injury.
This is intended to help tide over immediate financial problems. There is,
of course, provision for compensation for negligently killing or injuring any
person. There is vast legal literature as to the manner of computing
compensation. Under an 'Act-policy' provision contained in the said Act,
Insurance Companies which issue policies have to cover certain mandatory
risks. Lok Adalats and Motor Accident Claim Tribunals, all over the
country provide remedies for payment of compensation for death or injury.
In the 178th Report of the Law Commission (2001), a lacuna in the
law pointed by the High Courts in several judgments was sought to be
remedied. But Parliament has not yet implemented the same
recommendation. We propose to reiterate that amendment. The problem is
that if a person who is injured and has claimed compensation dies as a
consequence of the injury, while the claim is pending before the Claims
Tribunal, the proceedings abate and the deceased's estate represented by his
25
legal representatives get nothing. The benefit of the abatement goes to the
tort-feasor. This is happening in a number of cases. The Law Commission
has, therefore, recommended an amendment which allows the proceedings
to be continued by the legal heirs of the injured person who has died during
the pendency of the litigation.
So far as 'emergency medical aid' is concerned, we have referred to
the judgment of the Supreme Court in Parmanend Katara and other cases
decided by the National Consumer Redressal Forum. Apart from these,
there are some special provisions introduced into the Motor Vehicle Act,
1988.
Section 134 of the Motor Vehicles Act, 1988 imposes a duty on the
driver of the vehicle and of the doctor and hospital who are approached.
Section 187 creates an offence if sec 134 is not complied with. Section 134
reads as follows:
"Section 134: Duty of Driver in case of accident and injury to a
person:
When any person is injured or any property of a third party is
damaged as a result of an accident in which a motor vehicle is
involved, the driver of the vehicle or other person in charge of the
vehicle -
(a) unless it is not practicable to do so on account of mob fury or
any other reason beyond his control, to take all reasonable steps
to secure medical attention for the injured person, by conveying
him to the nearest medical practitioner or hospital, and it shall
26
be duty of every registered medical practitioner or the doctor
on duty in the hospital immediately to attend to the injured
person and render medical aid or treatment without waiting for
any procedural formalities, unless the injured person or his
guardian, in case he is a minor, desires otherwise;
(b) give on demand by a police officer, any information required
by him or, if no police officer is present, report the
circumstances of the occurrence, including the circumstances,
if any, for not taking reasonable steps to secure medical
attention as required under clause (a) at the nearest police
station as soon as possible, and in any case within twenty-four
hours of the occurrence ;
(c) give the following information in writing to the insurer, who
has issued the certificates of insurance, about the occurrence of
the accident, namely:-
(i) Insurance policy number and period of its validity;
(ii) Date, time and place of accident;
(iii) Particulars of the persons injured or killed in the
accident;
(iv) Name of the driver and the particulars of driving licence.
Explanation: For the purposes of this section, the expression "driver"
includes the owner of the vehicle."
Under section 187 of the said Act, whoever fails to comply with the
provisions of the various clauses of section 134, shall be punishable with
imprisonment for a term which may extend to three months, or with which
may extent to Rs.500/- or with both. If it is a second time such an offence is
27
committed by a person, the punishment by imprisonment may extend to six
months or with fine which may extend up Rs. 1000/- or with both.
But, in a large number of cases, which are known as he 'hit and run'
cases, the driver who runs away under cover of darkness or when he speeds
up and runs away or when there is nobody in the vicinity to note down the
number of the vehicle, or where the injured person not being in a fit
condition to note the number, the unfortunate position is that the driver or
the vehicle number is not traceable. In such situations, the above provisions
of sec 134 or 187 of the Motor Vehicles Act, 1988 are not helpful. The
serious apathy of the runaway tort teaser cannot be easily remedied.
Further, the above provisions of the Motor Vehicles Act do not cover
accidents due to other transport vehicles, like carts, cycle rickshaw, etc. Nor
does it cover victims of fire, flood, etc.
In addition, passers by who witness the accident fear harassment by
police and are not willing to take the victim to a hospital or report to the
police. They do not want to be called to the police station or to the Court
for their statements or evidence to be recorded.
Pre-hospital Care: Equipped Ambulances and transport
The British Medical Journal noted in one of its reviews on 'trauma'
issues that society seems to accept a lower standard of safety for road users
than for other modes of transport. In India, the problem is more acute due to
shortage of trained surgeons to handle accident trauma, poor diagnostic
28
infrastructure in government hospitals and because of grossly insufficient
ambulance services in rural and semi-urban areas. Trained personnel
staffing professional ambulance services will make a world of difference.
The British Journal states that for accident victims, the golden hour is a
continuous process beginning with the care that is given in the ambulance
en route to hospital; this protection is vital for survival rates.
Dr. P.V. Jayashankaran and Dr. P.C. Raja Ravi Verma, in an article in
the 'Hindu' magazine section (dated Oct. 16, 2005) have, after giving
statistics about accidents globally, and in India and Tamil Nadu state are as
follows:
".... the chances of survival are bleak as we truly lack an awareness
of the most important service, the pre-hospital care'.
'..... any tragic accident can be construed to be a success or failure
within the first 10 minutes of medical attention as this is the time
when the most important decisions are to be taken. It is here that the
concept of the Golden Hour comes into play. The concept can be
better understood if one were to learn the primary (Trimodal) causes
of death in major accidents. In fact, the London blasts highlighted the
case of an explosion in a double-decker bus that went off near a
conference hall hosting a meeting of medical practitioners. The
prompt medical care made available by the various specialists is a
case in point.'
29
About the pre-hospital facilities available in UK, the authors say that
in the United Kingdom the support systems are quite effective. The
National Health Services has well-equipped ambulances with top class
personnel (para-medicals) to manage accident victims throughout the
country under a single umbrella. These ambulances rush to the spot and
effectively avert any tragedy within the early minutes by way of proper
assessment of the injuries and they quickly transport the victims to the
nearest hospitals. By the time the victim reaches the hospital, he or she is
almost saved and in becomes easy for starting definitive treatment.
In India, according to the above authors, the situation is different.
Whenever an accident occurs, the focus on saving the life of the victims
gets diluted due to the fear of subsequent legal procedures and due to
paucity of people with an awareness of the importance of pre-hospital care.
What is required is a well maintained, state-of-the-art ambulance with
oxygen, intravenous infusions, life-saving drugs, splints, defibrillators and
ventilators. Well trained para-medical staff must be available at all times in
the ambulance.
The government has formed a number of Emergency Accident Relief
Centres (ARCD) through which the ambulances are sent to the scene of
accident but there is dearth of qualified para-medical personnel who can
assess or assist a victim. 32 Centralised Accident Trauma Services (CATS)
ambulances, says a Delhi Report (Express Newsline, Aug. 25, 2005) were
imported from Japan in the year 2000 at a cost of Rs.17.50 lakhs each and of
them, only 18 are functional. Compared to the early Omni-vans and
Gypsies that were used as ambulances, the CATS Ambulances are more
30
spacious and have medical facilities fitted inside the ambulances. The
advanced equipment in big vans, says a paramedical, were previously not
available in the Omni Vans or Gypsies. In case there is a serious road
accident, if the ambulance is not well equipped and if paramedical personnel
are not available in the ambulance, the transport facility does not qualify for
being recognized as a pre-hospital care facility.
His Excellency the President of India Shri A.P.J. Abdul Kalam in his
inaugurated address at the Annual General Meeting of the Indian Red Cross
Society and St. John Ambulance, New Delhi on October 17, 2004 strongly
pleaded for an integrated and institutionalized approach for emergency
response. He suggested a scheme, in which whenever an accident occurs, a
message could be sent to the nearest ambulance team and immediate
medical help is arranged for. He also recommended for formulating a legal
mechanism for providing such emergency support in critical situations. He
disapproved the tendency among people to avoid coming to the succour of
accident victims, fearing medico-legal issues. He said that hospitals
demanding the presence of the police and the completion of formalities
before they could start treating the patients are undesirable (see an article
Challenges of Emergency Management in India by Anil K. Sampada,
published in Indian Emergency Journal, vol.1).
As of now in India, there is no proper legal framework to (1)
encourage citizens to report and come out to give help to the accident
victims without fear of harassment, (ii) to mandate all doctors and hospitals
to attend accident victims and provide all medical facilities for stabilizing
patients in emergency, (iii) establish trained paramedics for pre hospital care
31
during transport (iv) to aid and implement trauma care system regardless of
jurisdictional boundaries.
In the light of the number of accidents in the country, the indifference
of those who witness an accident in offering prompt assistance on account
of the likelihood of facing to comply with legal formalities, lack of
ambulances with well equipped medical facilities or para-medical staff, it is
clear that the situation needs to be remedied by corrective action. We are
proposing draft legislation as a step in this direction.
It is first necessary to certain laws relating to emergency medical care
in other jurisdictions.
32
CHAPTER III
Emergency Medical Care procedures in Hospitals other Jurisdictions:
In the chapter-II, we had occasion to refer briefly to the facilities
available in the United Kingdom and also to the Centralized Accident
Trauma Services (CATS) introduced in a small measure in certain places in
India. But, it is necessary to refer to the emergency accident-care
procedures in other jurisdictions in some more detail.
U.S.A.:
Protection to those who render emergency care of injured:
In the State of Virginia, the Code of Virginia (as amended in 2000)
contains sec. 8.01.225 which exempts a person from civil liability when he
renders emergency care or assistance. The section provides that any person
who, in good faith, renders emergency care or assistance without
compensation, to any person who is ill or injured at the scene of the
accident, fire or life threatening emergency, or en route therefrom to any
hospital, medical clinic or doctor's office, shall not be liable for any civil
damages for acts or omissions resulting from the rendering of such care or
assistance. Similarly, if any person provides assistance upon request of any
police agency, fire department, rescue or emergency squad, or any
governmental agency in the event of an accident or other emergency, he
shall not be liable for any civil damages resulting from any act, omission on
his part in the course of rendering such assistance in good faith.
33
In New York, a similar provision exists in Art 30 of the Public Health
Law Emergency Medical Services. Section 300A provides that any person
who voluntarily and without expectation of any monetary compensation
renders first aid or treatment at the scene of an accident or other emergency,
outside a hospital or to a person who is unconscious, ill or injured, shall not
be liable for damages for injuries alleged to have been sustained by such
person or for damages for the death of such person alleged to have occurred
by reason on an action, omission in the rendering of such emergency
treatment.
EMTALA (USA): (Anti-dumping law): Duties of hospitals:
The Emergency Medical Treatment and Labor Act, 1986 (EMTALA)
is a federal law enacted by Congress as part of the Consolidated Omnibus
Budget Reconciliation Act, 1985 (COBRA) (42 USC sec 1395 dd), referred
to by the Supreme Court in Paschim Banga Khet Mazdoor Samiti case 1996
(4) SCC 37.
The above Act is also known as the "anti-dumping" law, as it was
designed to prevent hospitals from refusing to treat patients or transferring
them to charity or public hospitals because the victims are unable to pay or
had Medic-aid coverage. EMTALA requires hospitals with emergency
departments to provide emergency medical care to everyone who needs it,
regardless of ability to pay or insurance status. Under the law, the patients
with similar medical conditions must be treated consistently. The law
applies to hospitals that accept Medicare reimbursement and to all their
patients, not just those covered by Medicare.
34
The Guide for Interfacility Patient Transfer published by the National
Highway Traffic Safety Authority, USA (April, 2006) (NHSTA) gives a lot
of details about the Act and various other particulars. (see
www.nhtsa.dot.gov.gov/partal/site/nhtoc/menuitem).
Under EMTALA (extracted in this chapter), the hospitals have these
basic obligations:-
(1) The hospitals must provide all patients with a medical
screening examination to determine whether an emergency
medical condition exists without regard for ability to pay for
services.
(2) Where an emergency medical condition exists, they must either
provide treatment until the patient is stabilized, or if they do
not have the capabilities, transfer the patient to another
hospital.
(3) Hospitals with specialized capabilities are obliged to accept
transfers if they have the capabilities to treat them. Medical
care cannot be delayed by questions about methods of payment
or insurance coverage.
Of course, under (1) if an appropriate medical screening examination
identifies that no emergency medical condition exists, the EMTALA
obligation ceases to exist. Under (2), no EMTALA obligation exists if an
identified medical condition is stabilized. Additionally, latest regulations
now recognize that a patient with an emergency medical condition may be
discharged with a plan to have subsequent treatment provided as an
outpatient if such a plan is consistent with medical routine and does not
jeopardize the patient's health.
35
The NHTSA Guide further states that EMTALA governs how
patients may be transferred from one hospital to another. Under the law, a
patient is considered stable for transfer if the treating physician determines
that no material deterioration will occur during the movement between
facilities and that the receiving facility has the capability to manage the
patients' medical condition. EMTALA does not control the transfer of a
stable patient; however, patients with incompletely stabilized emergency
medical condition may still be transferred under EMTALA if one of the two
following conditions exists:
(a) the patient (or someone acting on the patients' behalf) provides
a written request for transfer despite being informed of the
hospitals' EMTALA obligations to provide treatment; or
(b) a physician certifies that medical benefits reasonably expected
from transfer outweigh the risk to the individual.
Once a doctor has decided to transfer the individual, (points out the
Guide), the following steps must be taken:
(i) the transferring hospital must provide all medical
treatment within its capacity, which minimizes the risk to
the individual's health.
(ii) the receiving facility must accept the transfer and must
have space available and qualified personnel to treat the
individual.
(iii) the transferring hospital must send copies of all medical
records related to the emergency medical condition. If
the physician on call refuses or fails to assist in the
36
patient's case, the physician's name and address must be
documented on the medical records provided to the
receiving facility.
(iv) Qualified personnel, with the appropriate medical
equipment, must accompany the patient during transfer.
The transferring physician, by law, has the responsibility
of selecting the most appropriate means of transport to
include qualified personnel and transport equipment.
Under EMTALA, the patient care during transport is the responsibility of
the transferring physician/hospital until the patient arrives at the receiving
facility. The transferring physician is also responsible for the orders as to
transfer and for the treatment orders to be followed during the transport.
This may conflict with (US) State statutes, which in some instances, allow
only authorized medical physicians to give orders to EMS personnel.
EMTALA does not refer to the transport service and its medical directive,
leaving ultimate medical responsibility and its transition during transport
open for interpretation.
Certificate of necessity for transfer is a requirement for
reimbursement by the Centres for Medicare and Medic-aid Services (CMS).
The CMS definition of 'medical necessity' is as follows:
'Medical necessity is established when the patient's condition is such
that use of any other method of transportation is contra-indicated. In
any case, in which some means of transportation other than an
ambulance could be utilized without endangering the individual's
health, whether or not such other transportation is actually available,
no payment may be made for ambulance service.'
37
Regulations:
The Centres for Medicare and Medic-aid Services has issued
Regulations pertaining to the enforcement of this law. Regulations go into
much greater details than the statute. Proposed rules published in 1988 can
be found in the federal Register (June 16, 1988) (53 FR 22513). In the
EMTALA, obligations are tied to hospitals' participation in Medicare. In
fact, a hospital could relieve itself of EMTALA obligations by dropping out
of the Medicare program; although this certainly would not be financially
beneficial to the hospital (Guide for inter-facility patient transfer, April
2006, NHTSA, Appendix D, E).
EMTALA STATUTE: (Emergency Medical Treatment and Labor Act)
EXAMINATION AND TREATMENT FOR EMERGENCY MEDICAL
CONDITIONS AND WOMEN IN LABOR
(42 U.S.C. § 1395dd)
"Sec. 1867. (a) MEDICAL SCREENING REQUIREMENT - In the case of
a hospital that has a hospital emergency department, if any individual
(whether or not eligible for benefits under this title) comes to the emergency
department and a request is made on the individual's behalf for examination
or treatment for a medical condition, the hospital must provide for an
appropriate medical screening examination within the capability of the
hospital's emergency department, including ancillary services routinely
available to the emergency department, to determine whether or not an
emergency medical condition (within the meaning of subsection (e)(1))
38
exists.
(b) NECESSARY STABILIZING TREATMENT FOR EMERGENCY
MEDICAL CONDITIONS AND LABOR
1) IN GENERAL - If any individual (whether or not eligible for benefits
under this title) comes to a hospital and the hospital determines that the
individual has an emergency medical condition, the hospital must provide
either -
(A) within the staff and facilities available at the hospital, for such further
medical examination and such treatment as may be required to stabilize the
medical condition, or
(B) for transfer of the individual to another medical facility in accordance
with subsection (c).
(2) REFUSAL TO CONSENT TO TREATMENT - A hospital is deemed to
meet the requirement of paragraph (1)(A) with respect to an individual if the
hospital offers the individual the further medical examination and treatment
described in that paragraph and informs the individual (or a person acting
on the individual's behalf) of the risks and benefits to the individual of such
examination and treatment, but the individual (or a person acting on the
individual's behalf) refuses to consent to the examination and treatment.
The hospital stall take all reasonable steps to secure the individual's (or
person's) written informed consent to refuse such examination and
treatment.
39
(3) REFUSAL TO CONSENT TO TRANSFER - A hospital is deemed to
meet the requirement of paragraph (1) with respect to an individual if the
hospital offers to transfer the individual to another medical facility in
accordance with subsection (c) and informs the individual (or a person
acting on the individual's behalf) of the risks and benefits to the individual
of such transfer, but the individual (or person acting on the individual's
behalf) refuses to consent to the transfer. The hospital shall take all
reasonable steps to secure the individual's (or person's) written informed
consent to refuse such transfer.
(c) RESTRICTING TRANSFERS UNTIL INDIVIDUAL STABILIZED -
(1) RULE - If an individual at a hospital has an emergency medical
condition which has not stabilized (within the meaning of subsection (e)(3)
(B)), the hospital may not transfer the individual unless -
(A)(i) the individual (or a legally responsible person acting on the
individual's behalf) after being informed of the hospital's obligations under
this section and of the risk of transfer, in writing requests transfer to another
medical facility,
(ii) a physician (within the meaning of section 1861 (r)(1)) has signed a
certification that based upon the information available at the time of
transfer, the medical benefits reasonably expected from the provision of
appropriate medical treatment at another medical facility outweigh the
40
increased risks to the individual and, in the case of labor, to the unborn
child from effecting the transfer, or
(iii) if a physician is not physically present in the emergency department at
the time an individual is transferred, a qualified medical person (as defined
by the Secretary in regulations) has signed a certification described in clause
(ii) after a physician (as defined in section 1861 (r)(1)), in consultation with
the person, has made the determination described in such clause, and
subsequently countersigns the certification; and
(B) the transfer is an appropriate transfer (within the meaning of paragraph
(2)) to that facility.
A certification described in clause (ii) or (iii) of subparagraph (A) shall
include a summary of the risks and benefits upon which the certification is
based.
(2) APPROPRIATE TRANSFER - An appropriate transfer to a medical
facility is a transfer -
(A) in which the transferring hospital provides the medical treatment within
its capacity which minimizes the risks to the individual's health and, in the
case of a woman in labor, the health of the unborn child;
(B) in which the receiving facility -
41
(i) has available space and qualified personnel for the treatment of the
individual, and
(ii) has agreed to accept transfer of the individual and to provide appropriate
medical treatment;
(C) in which the transferring hospital sends to the receiving facility all
medical records (or copies thereof), related to the emergency condition for
which the individual has presented, available at the time of the transfer,
including records related to the individual's emergency medical condition,
observations of signs or symptoms, preliminary diagnosis, treatment
provided, results of any tests and the informed written consent or
certification (or copy thereof) provided under paragraph (1)(A), and the
name and address of any on-call physician (described in subsection (d)(1)
(C) who was refused or failed to appear within a reasonable time to provide
necessary stabilizing treatment;
(D) in which the transfer is effected through qualified personnel and
transportation equipment, as required including the use of necessary and
medically appropriate life support measures during the transfer; and
(E) which meets such other requirements as the Secretary may find
necessary in the interest of the health and safety of individuals transferred.
(d) ENFORCEMENT -
42
(1) CIVIL MONETARY PENALTIES -
(A) A participating hospital that negligently violates a requirement of this
section is subject to a civil money penalty of not more than $50,000 (or not
more than $25,000 in the case of a hospital with less than 100 beds) for each
such violation. The provisions of section 1128A (other than subsections (a)
and (b)) shall apply to a civil money penalty under this subparagraph in the
same manner as such provisions apply with respect to a penalty or
proceeding under section 1128A(a).
(B) Subject to subparagraph (C), any physician who is responsible for the
examination, treatment, or transfer of an individual in a participating
hospital, including a physician on-call for the care of such an individual,
and who negligently violates a requirement of this section, including a
physician who -
(i) signs a certification under subsection (c)(1)(A) that the medical benefits
reasonably to be expected from a transfer to another facility outweigh the
risks associated with the transfer, if the physician knew or should have
known that the benefits did not outweigh the risks, or
(ii) misrepresents an individual's condition or other information, including a
hospital's obligations under this section, is subject to a civil money penalty
of not more than $50,000 for each such violation and, if the violation is
gross and flagrant or is repeated, to exclusion from participation in this title
and State health care programs. The provisions of section 1128A (other than
the first and second sentences of subsection (a) and subsection (b)) shall
43
apply to a civil money penalty and exclusion under this subparagraph in the
same manner as such provisions apply with respect to a penalty, exclusion,
or proceeding under section 1128A(a).
(C) If, after an initial examination, a physician determines that the
individual requires the services of a physician listed by the hospital on its
list of on-call physicians (required to be maintained under section 1866(a)
(1)(I)) and notifies the on-call physician and the on-call physician fails or
refuses to appear within a reasonable period of time, and the physician
orders the transfer of the individual because the physician determines that
without the services of the on-call physician the benefits of transfer
outweigh the risks of transfer, the physician authorizing the transfer shall
not be subject to a penalty under subparagraph (B). However, the previous
sentence shall not apply to the hospital or to the on-call physician who
failed or refused to appear.
(2) CIVIL ENFORCEMENT -
(A) PERSONAL HARM - Any individual who suffers personal harm as a
direct result of a participating hospital's violation of a requirement of this
section may, in a civil action against the participating hospital, obtain those
damages available for personal injury under the law of the State in which
the hospital is located, and such equitable relief as is appropriate.
(B) FINANCIAL LOSS TO OTHER MEDICAL FACILITY - Any medical
facility that suffers a financial loss as a direct result of a participating
hospital's violation of a requirement of this section may, in a civil action
44
against the participating hospital, obtain those damages available for
financial loss, under the law of the State in which the hospital is located,
and such equitable relief as is appropriate.
(C) LIMITATIONS ON ACTIONS - No action may be brought under this
paragraph more than two years after the date of the violation with respect to
which the action is brought.
(3) CONSULTATION WITH PEER REVIEW ORGANIZATIONS - In
considering allegations of violations of the requirements of this section in
imposing sanctions under paragraph (1), the Secretary shall request the
appropriate utilization and quality control peer review organization (with a
contract under part B of title XI) to assess whether the individual involved
had an emergency medical condition which had not been stabilized, and
provide a report on its findings. Except in the case in which a delay would
jeopardize the health or safety of individuals, the Secretary shall request
such a review before effecting a sanction under paragraph (1) and shall
provide a period of at least 60 days for such review.
(e) DEFINITIONS - In this section:
(1) The term "emergency medical condition" means -
(A) a medical condition manifesting itself by acute symptoms of sufficient
severity (including severe pain) such that the absence of immediate medical
attention could reasonably be expected to result in -
45
(i) placing the health of the individual (or, with respect to a pregnant
woman, the health of the woman or her unborn child) in serious jeopardy,
(ii) serious impairment of bodily functions, or
(iii) serious dysfunction of any bodily organ or part; or
(B) with respect to a pregnant woman who is having contractions -
(i) that there is inadequate time to effect a safe transfer to another hospital
before delivery, or
(ii) that transfer may pose a threat to the health or safety of the woman or
the unborn child.
(2) The term "participating hospital" means hospital that has entered into a
provider agreement under section 1866.
(3)(A) The term "stabilize" means, with respect to an emergency medical
condition described in paragraph (1)(A), to provide such medical treatment
of the condition as may be necessary to assure, within reasonable medical
probability, that no material deterioration of the condition is likely to result
from or occur during the transfer of the individual from a facility, or, with
respect to an emergency medical condition described in paragraph (1)(B), to
deliver (including the placenta).
46
(B) The term "stabilized" means with respect to an emergency medical
condition described in paragraph (1)(A), that no material deterioration of the
condition is likely, within reasonable medical probability, to result from or
occur during the transfer of the individual from a facility, or, with respect to
an emergency medical condition described in paragraph (1)(B), that the
woman has delivered (including the placenta).
(4) The term "transfer" means the movement (including the discharge) of an
individual outside a hospital's facilities at the direction of any person
employed by (or affiliated or associated directly or indirectly with) the
hospital, but does not include such a movement of an individual who (A)
has been declared dead, or (B) leaves the facility without the permission of
any such person.
(5) The term "hospital" includes a rural primary care hospital (as defined in
section 1861(mm)(1)).
(f) PREEMPTION - The provisions of this section do not preempt any State
or local law requirement, except to the extent that the requirement directly
conflicts with the requirement of this section.
(g) NONDISCRIMINATION - A participating hospital that has specialized
capabilities or facilities (such as burn units, shock-trauma units, neonatal
intensive care units, or (with respect to rural areas) regional referral centers
as identified by the Secretary in regulation) shall not refuse to accept an
appropriate transfer of an individual who requires such specialized
47
capabilities or facilities if the hospital has the capacity to treat the
individual.
(h) NO DELAY IN EXAMINATION OR TREATMENT - A participating
hospital may not delay provision of an appropriate medical screening
examination required under subsection (a) or further medical examination
and treatment required under subsection (b) in order to inquire about the
individual's method of payment or insurance status.
(i) WHISTLE BLOWER PROTECTIONS - A participating hospital may
not penalize or take adverse action against a qualified medical person
described in subsection (c)(1)(A)(iii) or a physician because the person or
physician refuses to authorize the transfer of an individual with an
emergency medical condition that has not been stabilized or against any
hospital employee because the employee reports a violation of a
requirement of this section."
EMTALA REGULATIONS
"Regulation 489.24: Special responsibilities of Medicare hospitals in
emergency cases
(a): "General: In the case of a hospital that has an emergency
department, if any individual (whether or not eligible for
Medicare benefits and regardless of ability to pay) comes by
him or herself or with another person to the emergency
department and a request is made on the individual's behalf for
examination or treatment of a medical condition by qualified
medical personnel (as determined by the hospital in its rules
48
and regulations), the hospital must provide for an appropriate
medical screening examination within the capability of the
hospital's emergency department, including ancillary services
routinely available to the emergency department, to determine
whether or not an emergency medical condition exists. The
examinations must be conducted by individuals determining
qualified by hospital by law or rules or regulations and who
meet the requirements of sec. 482.55 concerning emergency
services personnel and direction."
(b) We shall refer to some definitions in the Regulation
(A)'Comes to the emergency department' means, with respect
to an individual requesting examination or treatment, that
the individual is on hospital property. For purposes of this
section, 'property' means the entire main hospital campus,
including the parking lot, sidewalk and drive way, as well as
any facility or organization that is located off the main
hospital campus but has been determined to be a department
of the hospital. 'Property' also includes ambulances, owner
and operated by the hospital even if the ambulance is not on
hospital grounds. An individual in a non-hospital owned
ambulance on hospital property is considered to have come
to the hospital's emergency department even if a member of
the ambulance staff contacts the hospital on telephone or
telemetry communications and informs the hospital that they
want to transport the individual to the hospital for
49
examination and treatment. In these situations, the hospital
may deny access if it is 'discretionary status', that is, it does
not have staff or facilities to accept any additional patients.
If, however, the ambulance disregards the hospital's
instructions and transports the individual on to the hospital
property, the individual is considered to have come to the
emergency department.
(B)The regulations define 'Capacity' of a hospital as being its
ability to accommodate the individual requesting
examination or treatment of the transferred individual.
Capacity encompasses such things as number and
availability of quality staff, beds and equipment on the
hospital's past practices of accommodating additional
patient in excess of its occupancy limits.
(C) 'Emergency Medical Condition' means (1) a medical
condition manifesting itself by acute symptoms of sufficient
severity (including severe pain, psychiatric disturbances
and/or symptoms of substance abuse) such that the absence
of immediate medical attention could reasonably be
expected to result in -
(a) placing the health of the individual (or, with respect toa
pregnant woman, the health of the women or her unborn
child) in serious jeopardy;
(b) serious impairment to bodily functions; or
(c) serious dysfunction of any bodily organ or part; or
(2) With respect to a pregnant woman who is having
contradictions -
50
(a) that there is inadequate time to effect a safe transfer to
another hospital before delivery or
(b) that transfer may pose a threat to the health or safety
of the woman or the unborn child.
(D) 'Stabilized' means with respect to an 'emergency
medical condition' as defined in this section means:
(i) that no material deterioration is likely, within reasonable
medical probability, to result from or occurs during the
transfer of the individual from a facility or with respect
to an 'emergency medical condition'.
(ii)that the woman has delivered the child and the placenta.
(E)'To stabilize' means, with respect to an 'emergency medical
condition:
(i) to provide such medical treatment of the condition
necessary to assure, within reasonable medical
probability, that no material deterioration of the
condition is likely to result from or occurs during the
transfer of the individual from a facility; or
(ii) with respect to an 'emergency medical condition', the
woman has delivered the child and the placement.
Regulation 489.24 (Special responsibility of Medicare hospitals in
emergency cases):
Section (c) "Necessary stabilized treatment for emerging medical
conditions:
(1) If any individual (whether or not eligible for Medicare
benefits) comes to a hospital and the hospital determines
51
that the individual has an emergency medical condition, the
hospital must provide either -
(i) Within the capabilities of the staff and facilities
available at the hospital, for further medical
examination and treatment as required to stabilize
the medical condition; or
(ii) for transfer of the individual to another medical
facility in accordance with para (d) (below) of this
section."
(2) Refusal (by victim) to consent to treatment: This provision
states that after the hospital with an emergency department
informs the patient or person acting on his behalf, of the
risks and benefits to the individual of the examination and
treatment, but the individual (or person acting on his behalf)
refuses consent to the examination and treatment, the
medical record of the hospital must record the refusal and
take all reasonable steps to secure the individual's written
informed consent (or that of the person acting on his or her
behalf). The written document must indicate that the person
has been informed of the risks and benefits of the
examination or treatment.
"(3) Delay in examination or treatment (not permissible):
A particular hospital (i.e. that has entered into a Medicare
provider agreement under section 18.66 of the Act) may not
delay providing an appropriate medical screening
examination or further medical examination and treatment
52
required in order to inquire about the individual's method of
payment or insurance status.
(4)This clause deals with refusal by the victim or the person
acting on his behalf, for transfer to another medical facility
having required facilities. Written refusal must be
obtained."
Section (d) Restricting transfer until the individual is stabilized:
(1) If an individual at a hospital has an emergency medical
condition that has not been stabilized, the hospital may
not transfer the individual unless -
(i) the transfer is an appropriate transfer as stated in
section (d)(2), and
(ii) (A) the individual (or a legally responsible person
acting on his behalf) requests the transfer, after
being informed of the hospital's obligation under
this section and of the risk of transfer. The request
must be in writing and indicate the reasons for the
request as well as indicate that he or she is aware
of the risks and benefits of the transfer.
(B) a physician has signed a certificate that, based
upon the information available at the time of transfer,
the medical benefits reasonably expected from the
provision of appropriate medical treatment at another
medical facility outweigh the increased risks to the
individual or, in the case of a woman in labour, to the
woman or the unborn child, from being transferred.
53
The certification must contain a summary of the risk
and benefits upon which it is based; or
(C) if a physician is not physically present in the
emergency department at the time an individual is
transferred, a qualified medical person (as determined
by the hospital in its bye laws and regulations) has
signed a certificate described in clause B above after
a physician in consultation with the qualified medical
person, agrees with the certification and subsequently
countersigns the certificate. The certificate must
contain a summary of the risks and benefits upon
which it is based.
(2) A transfer to another medical facility will be appropriate
only in those cases in which -
(i) the transferring hospital provides medical
treatment within its capacity that minimizes the
risk to the individual's health and, in the case of a
woman in labour, the health of the unborn child;
(ii) The receiving facility -
(A) has available space and qualified
personnel for the treatment of the
individual; and
(B) has agreed to accept transfer of the
individual and to provide appropriate
medical treatment;
54
(iii) the transferring hospital sends to the receiving
facility, all medical records (or copies thereof)
related to the emergency condition which the
individual has presented that are available at the
time of transfer) including available history,
records related to the individual's emergency
medical condition, observations of signs or
symptoms, preliminary diagnosis, results of
diagnostic studies or telephone reports of the
studies, treatment provided, results of any tests
and the informed written consent or certification
(or copy thereof) required under this section, and
the name and address of any on-call physician who
has refused or failed to appear within reasonable
time to provide necessary stabilizing treatment.
Other records (e.g. test results not yet available or
historical records not readily available from the
hospital's files) must be sent as soon as practicable
after transfer, and
(iv) the transfer is effected through qualified personnel
and transportation equipment as required,
including the use of necessary and medically
appropriate life support measures during the
transfer.
(3) a participatory hospital may not initize do take adverse
action against a physician or a qualified medical person
described in para d(1)(ii)(C) above because the physician
55
or qualified person refuses to authorize the transfer of an
individual with an emergency medical condition that has
not been stabilized, or against any hospital employee
because the employee reports a violation of a
requirement of this section.
Sub- Recipient hospital's responsibilities:
section (e):
A particular hospital that has specialized capabilities or
facilities (including, but not limited to, facilities such as burn
units, shock-trauma units, neonatal intensive care units, or
(with regard to rural areas) regional referral centres) may not
refuse to accept from a referring hospital within the boundaries
of the United States an appropriate transfer of an individual
who requires such specialized capabilities or facilities if the
receiving hospital has the capacity to treat the individual.
Section (f): Termination of provider agreement: If a hospital fails to meet
the requirement of section (a) to (e), the HCFA may terminate
the 'provider agreement' in accordance with section 489.53.
....
Section (h): Off Campus Departments: If an individual comes to a facility or organization that is located off the main hospital campus but has been determined to be a department of the hospital and a request is made on the individual's behalf for examination or treatment of a potential emergency medical condition as 56 otherwise described in section (a), the hospital is obligator, in accordance with the rules, to provide the individual with an appropriate medical screening examination and any necessary stabilizing treatment or an appropriate transfer.
(1) Capability of the hospital:
The capability of the hospital includes that of the hospital as a whole, not just the capability of the off-campus department. Except for cases described in para (i)(3)(ii), the obligation of a hospital under this section must be discharged within the hospital as a whole. However, the hospital is not required to locate additional personnel or staff to off-campus departments to be on standby for possible emergencies. (2) Protocols for off-campus departments ....
(3) Movement or appropriate transfer from off-campus
departments
.. .. .. .. .."
EMTALA Sign requirement at Hospitals:
The following NOTICE TO THE PUBLIC is required to be displayed in all public entrances, registration areas, emergency department, waiting areas of Hospitals, as required by the HCFA (Health Care Financing Administration) of U.S.:-
"IT'S THE LAW IF YOU HAVE A MEDICAL EMERGENCY, OR, ARE IN LABOUR YOU HAVE THE RIGHT TO RECEIVE, (within the capabilities of this hospital's staff and facilities) 57 AN APPROPRIATE MEDICAL SCREENING EXAMINATION NECESSARY STABILIZING TREATMENT (including treatment for an unborn child) and, if necessary, AN APPROPRIATE TRANSFER to another FACILITY EVEN IF YOU CANNOT PAY OR DO NOT HAVE MEDICAL INSURANCE or EVEN IF YOU ARE NOT ENTITLED TO MEDICARE OR MEDICAID. THIS HOSPITAL DOES/DOES NOT PARTICIPATE IN THE MEDICAID PROGRAM."
The above sign must be visible from a distance of 20' away or from patient's likely viewing point and posted in a manner likely to be seen.
These provisions of EMTALA and the Regulations made for the purpose of enforcing EMTALA can be a model for considering appropriate reconsideration for a law in our country.
58CHAPTER IV Ambulance Services in other Jurisdiction In order to give an idea of regulation of ambulance services, we shall refer to the rules in force in USA, for example in the State of Minnesota (we are not covering these aspects relating to ambulances in the Bill attached to this Report).
USA - Ambulance Services:
The State of Minnesota in USA in city statutes of 2004 deals with Ambulance Services. In section 144 E(1) to144 E(52) there are several provisions which can be a model for legislation in India. We do not propose to refer to all the provisions except the crucial ones.
So far as definitions are concerned, we shall refer to a few of them which are important:
001(1b) defines 'Advanced life support' as means 'rendering basic life support and rendering intravenous therapy, drug therapy, intubation, and defibrillation'.
001(2) defines 'Ambulance' as means 'any vehicle designed or intended for and actually used in providing ambulance service to ill or injured persons or expectant mothers.' 001(3) 'Ambulance service' means transportation and treatment which is rendered or offered to be rendered preliminary to or during 59 transportation to, from, or between health care facilities for ill or injured persons or expectant mothers. The term includes all transportation involving the use of a stretcher, unless the person to be transported is not likely to require medical treatment during the course of transport.
001.3a: Ambulance service personnel means individuals who are authorized by a licensed ambulance service to provide emergency care for the ambulance service and are:
(1) Emergency Medical Technicians, Emergency Medical Technician-Intemediate, or Emergency Medical Technician-
Paramedic;
(2) Registered nurses who are qualified ...
(3) Registered physician assistants ...
001.4a: Basic airway management means:
(i) resuscitation by mouth-to-mouth, mouth-to-mask, bag valve mask, or oxygen powered ventilators; or 60
(ii) insertion of an oro-pharyngeal, nasal pharyngeal, esophageal obturator airway, esophageal tracheal airway, or esophageal gastric tube airway.
001.4b: Basic life support means rendering basic-level emergency care, including, but not limited to, basic airway management, cardiopulmonary resuscitation, controlling shock and bleeding, and splinting fractures ...
001.5b: Defibrillator means an automatic, semiautomatic, or manual device that delivers an electric shock at a preset voltage to the myocardium through the chest wall and that is used to restore the normal cardiac rhythm and rate when the heart has stopped beating or is fibrillating.
001.5c: Emergency medical technician means EMT.
001.5d: Emergency medical technician-intermediate (EMT-I) ...
001.5e: Emergency medical technician-paramedic EMT-P) ...
001.6: First Responder means an individual who is registered by the board to perform, at a minimum, basic emergency skills before the arrival of a licensed ambulance service, and is a member of an organized service ...
61001.7: License means authority granted by the board for the operation of an ambulance service in the state of Minnesota.
001.9a: Part-time advance life support means rendering basic life support and advanced life support for less than 24 hours of every day.
001.9b: Physician means ...
001.9c: Physician assistant means ...
001.9d: Pre-hospital care data means information collected by ambulance service personnel about the circumstances related to an emergency response and patient care activities provided by the ambulance service personnel in a pre-hospital setting.
001.12: Registered nurse means ...
001.14: Training program coordinator ...
001.15: Volunteer ambulance assistant ...
144E.01: Emergency Medical Services Regulatory Board ...
02 to 05: Staff, Member, etc. 144E.01.6: Duties of Board.
(a) The Emergency Medical Services Regulatory Board shall:
62(1) administer and enforce the provisions of this chapter and other duties as assigned to the board;
(2) advise applicants for state or federal emergency medical services funds, review and comment on such applications, and approve the use of such funds unless otherwise required by federal law;
(3) make recommendations to the legislature on improving the access, delivery, and effectiveness of the state's emergency medical services delivery system; and (4) establish procedures for investigating, hearing, and resolving complaints against emergency medical services providers.
(b) The Emergency Medical Services Board may prepare an initial work plan, which may be updated biennially. The work plan may include provisions to:
(1) prepare an emergency medical services assessment which ddresses issues affecting the statewide delivery system;
(2) establish a statewide public information and education system regarding emergency medical services;
(3) create, in conjunction with the Department of Public Safety, a statewide injury and trauma prevention program; and 63 (4) designate an annual emergency medical services personnel recognition day.
144E.05 General authority.
144.E.05-1: Receiving Grants or gifts.
144.E.05-2: Contracts.
144E.06: Primary service areas:
The board shall adopt rules defining primary service areas under which the board shall designate each licensed ambulance service as serving a primary service area or areas.
144E.10: Ambulance service licensing.
144E.101 Ambulance service requirements.
144E.101-1: Personnel:
(a) No publicly or privately owned ambulance service shall be operated in the state unless its ambulance service personnel are certified, appropriate to the type of ambulance service being provided, according to section 144E.28 or meet the staffing criteria specific to the type of ambulance service.64
(b) An ambulance service shall have a medical director as provided under section 144E.265.
144E/101-2: Patient care: When a patient is being transported, at least one of the ambulance service personnel must be in the patient compartment. If advanced life support procedures are required, an EMT-P, a registered nurse qualified under section 144E.001, subdivision 3a, clause (2), item (i), or a physician assistant qualified under section 144E.001, subdivision 3a, clause (3), item (i), shall be in the patient compartment.
144E.101-3: Continual service: An ambulance service shall offer service 24 hours per day every day of the year, unless otherwise authorized under subdivisions 8 and 9.
Sub-divn. 4: Denial of service prohibited: An ambulance service shall not be denied pre-hospital care to a person needing emergency ambulance service because of inability to pay or because of the source of payment for services if the need develops within the licensee's primary service area or when responding to a mutual aid call. Transport for the patient may be limited to the closest appropriate emergency medical facility.
Sub-divn. 5: Types of service. The board shall regulate the following types of ambulance service:
(i) basic life support;
65(ii) advanced life support;
(iii) part-time advanced life support; and
(iv) specialized life support.
Sub-divn. 6: Basic life support:
(a) Except as provided in paragraph (e), a basic life support ambulance shall be staffed by at least two ambulance service personnel, at least one of which must be an EMT, who provide a level of care so as to ensure that:
(1) life-threatening situations and potentially serious injuries are recognized;
(2) patients are protected from additional hazards;
(3) basic treatment to reduce the seriousness of emergency situations is administered; and (4) patients are transported to an appropriate medical facility for treatment.
(b) A basic life support service shall provide basic airway management.66
(c) By January 1, 2001, a basic life support service shall provide automatic defibrillation, as provided in section 144E.103, subdivision 1, paragraph (b).
(d) A basic life support service licensee's medical director may authorize the ambulance service personnel to carry and to use medical antishock trousers and to perform intravenous infusion if the ambulance service personnel have been properly trained.
(e) Variation of facilities by Driver of an ambulance of service: ...
Sub-divn. 7: Advanced life support:
(a) An advanced life support ambulance shall be staffed by at least:
(1) one EMT and one EMT-P;
(2) one EMT and one registered nurse who is an EMT, is currently practicing nursing, and has passed a paramedic practical skills test approved by the Board and administered by a training program; or (3) one EMT and one physician assistant who is an EMT, is currently practicing as a physician assistant, and has passed a paramedic practical skills test approved by the board and administered by a training program.67
(b) An advanced life support service shall provide basic life support, as specified under subdivision 6, paragraph (a), advanced airway management, manual defibrillation, and administration of intravenous fluids and pharmaceuticals.
(c) In addition to providing advanced life support, an advanced life support service may staff additional ambulances to provide basic life support according to subdivision 6. When routinely staffed and equipped as a basic life support service according to sub-division 6 and section 144E.103, sub-division 1, the vehicle shall not be marked as advanced life support.
(d) An ambulance service providing advanced life support shall have a written agreement with its medical director to ensure medical control for patient care 24 hours a day, seven days a week. The terms of the agreement shall include a written policy on the administration of medical control for the service.
The policy shall address the following issues:
(i) two-way communication for physician direction of ambulance service personnel;
(ii) patient triage, treatment, and transport;
(i) use of standing orders; and 68
(ii) the means by which medical control will be provided 24 hours a day.
The agreement shall be signed by the licensee's medical director and the licensee or the licensee's designee and maintained in the files of the licensee.
(e) When an ambulance service provides advanced life support, the authority of an EMT-P, Minnesota registered nurse-EMT, or Minnesota registered physician assistant-EMT to determine the delivery of patient care prevails over the authority of an EMT.
Sub-divn. 8: Part-time advanced life support:
(a) A part-time advanced life support service shall meet the staffing requirements under subdivision 7, paragraph (a); provide service as required under subdivision 7, paragraph (b), for less than 24 hours every day; and meet the equipment requirements specified in section 144E.103.
(b) A part-time advanced life support service shall have a written agreement with its medical director to ensure medical control for patient care during the time the service offers advanced life support. The terms of the agreement shall include a written policy on the administration of medical control for the service and address the issues specified in sub-division 7, para (d).69
Sub-divn. 9: Specialized life support: A specialized ground life support service providing advanced life support shall be staffed by at least one EMT and one EMT-P, registered nurse, or physician assistant. A specialized life support service shall provide basic or advanced life support as designated by the board, and shall be restricted by the board to:
(1) operation less than 24 hours of every day;
(2) designated segments of the population;
(3) certain types of medical conditions; or
(4) air ambulance service that includes fixed-wing or rotor-wing.
Sub-divn. 10: Driver: A driver of an ambulance must possess a current driver's license issued by any state and must have attended an emergency vehicle driving course approved by the licensee. The emergency vehicle driving course must include actual driving experience.
Sub-divn. 11: Personnel roster and files:
(a) An ambulance service shall maintain:
(1) at least two ambulance service personnel on a written on-
call schedule;
70(2) a current roster of its ambulance service personnel,including the name, address, and qualifications of its ambulance service personnel; and (3) files documenting personnel qualifications.
(b) A licensee shall maintain in its files the name and address of its medical director and a written statement signed by the medical director indicating acceptance of the responsibilities specified in section 144E.265, subdivision 2.
Sub-divn. 12: Mutual aid agreement: A licensee shall have a written agreement with at least one neighboring licensed ambulance service for coverage during times when the licensee's ambulances are not available for service in its primary service area. The agreement must specify the duties and responsibilities of the agreeing parties. A copy of each mutual aid agreement shall be maintained in the files of the licensee.
Sub-divn. 13: Service outside primary service area: A licensee may provide its services outside of its primary service area only if requested by a transferring physician or ambulance service licensed to provide service in the primary service area when it can reasonably be expected that:
71(1) the response is required by the immediate medical need of an individual; and (2) the ambulance service licensed to provide service in the primary service area is unavailable for appropriate response.
144E.103 Equipment:
Sub-divn 1. General requirements.
(a) Every ambulance in service for patient care shall carry, at a minimum:
(1) oxygen;
(2) airway maintenance equipment in various sizes to accommodate all age groups;
(3) splinting equipment in various sizes to accommodate all age groups;
(4) dressings, bandages, and bandaging equipment;
(5) an emergency obstetric kit;72
(6) equipment to determine vital signs in various sizes to accommodate all age groups;
(7) a stretcher;
(8) a defibrillator; and (9) a fire extinguisher.
(b) A basic life support service has until January 1, 2001, to equip each ambulance in service for patient care with a defibrillator.
Sub-divn. 2: Advanced life support requirements: In addition to the requirements in subdivision 1, an ambulance used in providing advanced life support must carry drugs and drug administration equipment and supplies as approved by the licensee's medical director.
Sub-divn. 3: Storage: All equipment carried in an ambulance must be securely stored.
Sub-divn. 4: Safety restraints: An ambulance must be equipped with safety straps for the stretcher and seat belts in the patient compartment for the patient and ambulance personnel.
144E.11: Ambulance service application procedure: ...
73144E.121 Air ambulance service requirements.
Sub-division 1: Aviation compliance Sub-division 2: Personnel Sub-division 3: Equipment 144E.123: Pre-hospital care data:
Sub-division 1: Collection and maintenance Sub-division 2: Copy to receiving hospital Sub-division 3: Review Sub-division 4: Penalty: Failure to report all information required by the board under this section shall constitute grounds for license revocation.
144E.125: Operational procedures:
A licensee shall establish and implement written procedures for responding to ambulance service complaints, maintaining ambulances and equipment, procuring and storing drugs, and controlling infection. The licensee shall maintain the procedures in its files.
144E.127: Inter-hospital transfer:74
When transporting a patient from one licensed hospital to another, a licensee may substitute for one of the required ambulance service personnel, a physician, a registered nurse, or physician's assistant who has been trained to use the equipment in the ambulance and is knowledgeable of the licensee's ambulance service protocols.
144E.13: Temporary license 144E.14: Transfer of license or ownership 144E.15: Relocation of base of operations 144E.16 Rules; local standards:
Sub-division 1: Repealed, 1999 c 245 art 9 s 66.
Sub-division 2: Repealed, 1999 c 245 art 9 s 66.
Sub-division 3: Repealed, 1999 c 245 art 9 s 66.
Sub-division 4: Rules: The board may adopt rules needed to regulate ambulance services in the following areas:
(1) applications for licensure;
(2) personnel qualifications and staffing standards;
(3) quality of life support treatment;75
(4) restricted treatments and procedures;
(5) equipment standards;
(6) ambulance standards;
(7) communication standards, equipment performance and maintenance, and radio frequency assignments;
(8) advertising;
(9) scheduled ambulance services;
(10) ambulance services in time of disaster;
(11) basic, intermediate, advanced, and refresher emergency care course programs;
(12) continuing education requirements;
(13) trip reports;
(14) license fees, vehicle fees, and expiration dates; and 76 (15) waivers and variances.
Sub-division 5: Local government's powers:
(a) Local units of government may, with the approval of the board, establish standards for ambulance services which impose additional requirements upon such services. Local units of government intending to impose additional requirements shall consider whether any benefit accruing to the public health would outweigh the costs associated with the additional requirements.
The regulations presented by the local unit of government shall not conflict with rules made by the Board.
144E.18: Inspections:
The board may inspect ambulance services as frequently as deemed necessary to determine whether an ambulance service is in compliance with sections 144E.001 to 144E.33 and rules adopted under those sections. The board may review at any time documentation required to be on file with a licensee.
144E.19: Disciplinary action:
Sub-division 1: Suspension; revocation; nonrenewal:77
The board may suspend, revoke, refuse to renew, or place conditions on the license of a licensee upon finding that the licensee has violated a provision of this chapter or rules adopted under this chapter or has ceased to provide the service for which the licensee is licensed.
Sub-division 2: Notice; contested case.
Sub-division 3: Temporary suspension.
144E.265: Medical director:
Sub-division 1: Requirements.
Sub-division 2: Responsibilities:
Responsibilities of the medical director shall include, but are not limited to:
(1) approving standards for training and orientation of personnel that impact patient care;
(2) approving standards for purchasing equipment and supplies that impact patient care;
(3) establishing standing orders for prehospital care;
(4) approving written triage, treatment, and transportation guidelines for adult and pediatric patients;78
(5) participating in the development and operation of continuous quality improvement programs including, but not limited to, case review and resolution of patient complaints;
(6) establishing procedures for the administration of drugs; and (7) maintaining the quality of care according to the standards and procedures established under clauses (1) to (6).
Sub-division 3: Annual assessment; ambulance service.
By medical director.
144E.27: First responder registration.
Subdivision 1. Training programs, Registration, Renewal, Denial, suspension, revocation, Temporary suspension.
144E.275: Medical response unit registration: Registration, qualifications, Expiration, Renewal.
144E.28: Certification of EMT, EMT-I, and EMT-P. 79 Requirements, Expiration Dates, Reciprocity, Forms of disciplinary action, Denial, suspension, revocation, Temporary suspension, Renewal, Reinstatement.
144E.283: EMT instructor qualifications.
144E.285: Training programs.
Approval required.
EMT-P requirements, Expiration, Disciplinary action, Temporary suspension, Audit.
144E.286: Examiner qualifications for emergency medical technician testing.
144E.287: Diversion program.
144E.29: Fees.
(a) The board shall charge the following fees:
(1) initial application for and renewal of an ambulance service license, $150;80
(2) each ambulance operated by a licensee, $96. The licensee shall pay an additional $96 fee for the full licensing period or $4 per month for any fraction of the period for each ambulance added to the ambulance service during the licensing period;
(3) initial application for and renewal of approval for a training program, $100; and (4) duplicate of an original license, certification, or approval, $25.
(b) With the exception of paragraph (a), clause (4), all fees are for a two-year period. All fees are non-refundable.
(c) Fees collected by the board shall be deposited as non-dedicated receipts in the general fund.
144E.30: Cooperation; Board powers:
Sub-division 3: Cooperation during investigation.
Sub-division 4: Injunctive relief.
Sub-division 5: Subpoena power.
144E.305: Reporting misconduct:81
Sub-division 1: Voluntary reporting.
Sub-divn. 2: Mandatory reporting.
Sub-divn. 3: Immunity: Immunity for good faith reporting from civil actions on reporting Individual, Licensee, health care facility, business or organization.
144E.31: Correction order and fines by Board.
144E.35: Reimbursement to nonprofit ambulance services.
Sub-division 1: Repayment for volunteer training.
Sub-division 2: Procedure.
144E.37: Comprehensive advanced life support.
Comprehensive advanced life support educational program to train rural medical personnel, including physicians, physician assistants, nurses for emergencies - by Board.
144E.50 Emergency medical services fund.
Sub-division 1: name of fund.82
Sub-division 2: Establishment and purpose.
In order to develop, maintain, and improve regional emergency medical services systems, the Emergency Medical Services Regulatory Board shall establish an emergency medical services system fund.
The fund shall be used for the general purposes of -
(1) promoting systematic, cost-effective delivery of emergency medical care throughout the state;
(2) identifying common local, regional, and state emergency medical system needs and providing assistance in addressing those needs;
(3) providing discretionary grants for emergency medical service projects with potential regionwide significance;
(4) providing for public education about emergency medical care;
(5) promoting the exchange of emergency medical care information;
(6) ensuring the ongoing coordination of regional emergency medical services systems; and 83 (7) establishing and maintaining training standards to ensure consistent quality of emergency medical services throughout the state.
Sub-divn. 3: Definition - Board.
Sub-divn. 4: Use and restrictions. Designated regional medical services system funds.to support local and regional emergency medical services as determined within the region, with particular emphasis given to supporting and improving emergency trauma and cardiac care and training. No part of a region's share of the fund may be used to directly subsidize any ambulance service operations or rescue service operations or to purchase any vehicles or parts of vehicles for an ambulance service or a rescue service.
Sub-divn. 5: Distribution: Money from the fund shall be distributed according to this sub-division.
(1) Ninety-five percent of the fund shall be distributed annually on a contract for services basis with each of the eight regional emergency medical services systems designated by the board.
(2) The systems shall be governed by a body consisting of appointed representatives from each of the counties in that region and shall also include representatives from emergency medical services organizations.
84(3) The board shall contract with a regional entity only if the contract proposal satisfactorily addresses proposed emergency medical services activities in the following areas: (i) personnel training;
(ii) transportation coordination; (iii) public safety agency cooperation; (iv) communications systems maintenance and development; (v) public involvement; (vi) health care facilities involvement; and (vii) system management.
(4) If each of the regional emergency medical services systems submits a satisfactory contract proposal, then this part of the fund shall be distributed evenly among the regions.
(5) If one or more of the regions does not contract for the full amount of its even share or if its proposal is unsatisfactory, then the board may reallocate the unused funds to the remaining regions on a pro rata basis.
(6) 5% of the fund shall be used by the board to support region-wide reporting systems and to provide other regional administration and technical assistance.
Sub-divn. 6: Audit of regional emergency medical services board.
144E.52: Funding for the emergency medical services regions.
85The Emergency Medical Services Regulatory Board shall distribute funds appropriated from the general fund equally among the emergency medical service regions. Each regional board may use this money to reimburse eligible emergency medical services personnel for continuing education costs related to emergency care that are personally incurred and are not reimbursed from other sources. Eligible emergency medical services personnel include, but are not limited to, dispatchers, emergency room physicians, emergency room nurses, first responders, emergency medical technicians, and paramedics.
There are some of the important statutes/Rules in force elsewhere which can form the basis for a similar system in India so as to fulfil the needs of our society, referred to by the Supreme Court of India in Parmanand Katara and other cases.
In the next chapter, (Chapter-IV), we propose to give our recommendations for a law to be made in India, so far as requiring hospitals and medical practitioners to compulsorily provide emergency medical care without rising objections.
So far as ambulances are concerned, except to the extent transfer from one hospital to another, we are not giving any recommendation though there are separate statutes giving ambulances, in USA, as stated above.
86CHAPTER V RECOMMENDATIONS FOR MANDATORY EMERGENCY MEDICAL CARE BY HOSPITALS AND MEDICAL PRACTITIONERS In the light of the discussion in Chapters I and II, and the principles applied for mandatory emergency medical care in hospitals in USA in particular, as described in chapter III, we propose to give our recommendations, keeping in view the observations of the Supreme Court in Parmanand Katara v. Union of India AIR 1989 SC 2039, Paschim Banga Khet Mazdoor Samiti v. State of West Bengal: 1996(4) SCC 37 and Indian Medical Association v. V.S. Shanta 1995(6) SCC 651 and decision of the National Consumer Redressal Commission in Pravat Kumar Mukherjee v. Ruby General Hospital (25.4.2005).
We are drafting a Model Law for the States in view of the observation of the Supreme Court. It may be noted that 'hospitals' fall under Entry 6 of State List in Schedule VII of the Constitution of India. The reference to medical practitioners in this Bill is purely incidental.
Duty of Hospitals and Medical Practitioners:
87We have noticed the observations of the Supreme Court in Parmanad Katara v. Union of India : AIR 1989 SC 2039 that hospitals and medical practitioners have a duty to provide emergency medical care.
In that case, the Court observed that "the effort to save the persons should be the top priority not only of the medical professionals but even of the police or any other citizen who happens to be connected with the matter or who happens to notice such an accident or a situation". The Court said, "it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished". The Court further observed:
"A doctor at the Government hospital positioned to meet the State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise, has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/ delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way."
The Court also observed:
88"But on behalf of the medical profession there is one more apprehension which sometimes prevents a medical professional in spite of his desire to help the person, as he apprehends that he will be a witness and may have to face police interrogation which sometimes may need going to the police station repeatedly and waiting and also to be a witness in a Court of law where also he apprehends that he may have to go on number of days and may have to wait for a long time and may have to face sometimes long unnecessary cross- examination which sometimes may even be humiliating for a man in the medical profession and in our opinion, it is this apprehension which prevents a medical professional who is not entrusted with the duty of handling medico-legal cases to do the needful, he always tries to avoid and even if approached, directs the person concerned to go to a State hospital and particularly to the person who is in-charge of the medico-legal cases."
The Court directed:
"We are of the view that every doctor wherever he be within the territory of India should forthwith be aware of this position and, therefore, we direct that this decision of ours shall be published in all journals reporting decisions of this Court and adequate publicity should be given by the national media as also through the Doordarshan and All India Radio."
Similar views were expressed in the other cases referred to above.
89We are, therefore, of the opinion that it is necessary to impose a statutory duty on hospitals and medical practitioners to attend on a person who has met with an accident or who is in an emergency condition who comes before them or who is brought before them, without raising any objection and without any excuse that it is a medico-legal case and that the person must be taken to a Government hospital.
Apart from this kind of objections, there are other circumstances which are recognised today as being responsible for refusal to treat persons mentioned above. One such objection is that the person is not immediately in a position to meet the expenditure that may be involved in emergency medical treatment. Sometimes, hospitals or doctors want immediate payment. Some others are not prepared to take up cases where the person does not have insurance or has no facility for medical reimbursement either from his employer or under any other medical reimbursement scheme. These and other objections necessitate that a specific statutory provision must be made imposing a mandatory duty on hospitals and doctors to treat persons who are injured in accidents or who are in other medical emergencies. They have to first treat the patient, screen him, stabilize him and render such emergency medical care as is required or is available in the hospital or the clinic of the medical practitioner. We are also proposing a statutory scheme for reimbursement by the State Governments.
The first few hours are known as 'golden hours' for such patients for if there is no emergency medical care coming soon after the accident or other emergency medical condition, the life of the person may be lost for ever or he may remain crippled and ill beyond repair for all time.
90In the United States of America, as stated in chapter III, lack of interest on the part of hospitals to attend on victims of accidents, those in an emergency medical condition and women under labour led to the passing of a law called EMTALA STATUTE (42 USC 1395 DD) (Emergency Medical Treatment and Labour Act) by amending the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). That Act made it a mandatory duty on the part of hospitals to attend on such persons. The Act contains an entire scheme of screening, stabilizing and rendering emergency treatment. It also deals with situations where the hospital is not sufficiently equipped to provide stabilization or emergency treatment and in that event, the hospital has to transfer the person to another hospital. In certain cases, it cannot transfer unless the patient is stabilized. A number of safeguards are provided in Emtala as to what should be done for transfer of a person to another hospital. The Emtala also creates offences against those who violate the duties envisaged by it.
In this Report and the Bill, we have adopted some of the principles stated in Emtala and we have made suitable changes for our purposes in India.
(A) We recommend statutory duties on hospitals and medical practitioners We, therefore, recommend a section in the proposed law to make it mandatory to direct medical assistance in accidents and emergencies precluding the hospitals or doctors from raising any objection on the following grounds:-
91(a) that it is a medico-legal case requiring information to be given to the police authorities, or
(a) that the person is not immediately in a position to make payment for screening and emergency medical treatment or that immediate payment should be made as a condition precedent for treatment, or
(b) that the person does not have medical insurance or is not a member of any medical scheme providing for medical reimbursement.
In addition, we propose that "no other unreasonable objection" can be raised for giving emergency medical treatment.
The draft of the proposed section 3 is as follows:
"Duty of duty doctors in hospitals and private medical practitioners
3. It shall be the duty of every hospital and every medical practitioner to immediately attend on every person involved in an accident or who is purportedly in an emergency condition, when such a person has come or has been brought to the hospital or to the private medical practitioner and screen or transfer such person as stated in section 4 and when the screening reveals the existence of an emergency medical condition, to stabilize or transfer such person as 92 stated in section 5 and afford them, such medical treatment as may be urgently called for -
(i) without raising any objection that it is a medico-legal case requiring information to the police authorities,
(ii) whether or not such a person is immediately in a position to make payment for screening and emergency medical treatment, and without insisting on payment as a condition precedent.
(iii) whether or not such a person has medical insurance or is a member of any medical scheme of the person's employer or to a scheme which otherwise provides for medical reimbursement, and
(iv) without raising any other unreasonable objection."
(B) 'Screening' a person to determine if he is in an'emergency medical condition.
Definition of 'emergency medical condition' The next requirement is to make it mandatory for "screening" the person to find out whether the person requires emergency medical treatment in the hospitals, i.e. treatment as an in-patient or whether he could be treated in the out patient department of the hospital. Even a private medical practitioner can conduct such a screening. The results of the screening must be documented by the hospital or doctor in their registers. Section 4 of the Bill provides for mandatory screening as follows:
93"Screening of the person
4. Whenever such a person referred to in section 3, is brought or comes to the hospital or medical practitioner, it shall be their duty to provide an appropriate medical screening examination within the capability of the hospital or the medical practitioner, as the case may be, for the purpose of determining whether or not an emergency medical condition exists."
Provided that if such hospital or medical practitioner, as the case may be, is not having capability for conducting appropriate medical screening examination, it shall be their duty to arrange for the transfer of the person to a hospital or to another medical practitioner which or who, in their opinion, has the necessary capabilities for such medical screening examination."
Once the mandatory screening is done, it may reveal that the person is or is not in an emergency medical condition.
By emergency medical condition, (which we propose to define) we mean a medical condition manifesting acute symptoms of sufficient severity (including severe pain) where the absence of emergency medical treatment could reasonably be expected to result in
(i) death of the person,
(ii) serious jeopardy in the health of the person (or in the case of a pregnant woman, in her health and the health of the unborn child), or
(iii) serious impairment of bodily functions,
(iv) serious dysfunction of any bodily organ or part, 94 We propose to add an Explanation as to what is emergency medical condition of a pregnant woman such as where there is no adequate time to effect a safe transfer of the person to another hospital before delivery, or the transfer may pose a threat to the health or safety of the woman or her unborn child."
(C) Emergency Medical Treatment to a person who is in emergency medical condition.
Stabilising a person:
If a person is in an emergency medical condition, as revealed by the screening, he must be given emergency medical treatment including stabilization and further treatment.
We propose to define 'emergency medical treatment' as follows:
"'Emergency medical treatment' means the action that is required to be taken, after screening of a person injured in an accident or who is in an emergency medical condition, as to the stabilization of the person and the rendering of such further treatment as may, in the opinion of the hospital or medical practitioner be necessary for the purpose of preventing aggravation of the medical condition of the person or his death and in the case of a pregnant woman, for the purpose of safe delivery and safeguarding the life of the woman and the child."
"Stabilization with respect to an emergency condition means -95
(i) to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or
(ii)to provide, with respect to a pregnant woman who is having contractions, for the safe delivery of the child (including the placenta), and the word 'stabilized' shall be understood accordingly."
Duty of hospital and medical practitioner to stabilize the medical condition is provided in section 5(i)) of the Bill as follows:
"Stabilizing the person and transfer
5. Wherever in respect of a person referred to in section 3, screening, as stated in section (4) has been done and it has been determined that an emergency medical condition exists which requires to be urgently treated, it shall be the duty of the hospital or medical practitioner, as the case may be, subject to the provisions of section 6, either -
(i) to provide, within the staff and facilities available at the hospital or with the medical practitioner, such further medical examination and such medical treatment as may be required to stabilize his medical condition, or
(ii) .. .. .. .. .."
(D) After stabilization, transfer, where necessary 96 But, where the necessary facilities for stabilization are not available with a hospital or medical practitioner, it is necessary to arrange for transfer to another hospital or medical practitioner, who or which, in the opinion of the transferring hospital or medical practitioner, can stabilize the person and provide further medical treatment.
This is provided in section 5(ii) of the Bill as follows:
"Stabilizing the person and transfer
5. Wherever in respect of a person referred to in section 3, screening, as stated in section (4) has been done and it has been determined that an emergency medical condition exists which requires to be urgently treated, it shall be the duty of the hospital or medical practitioner, as the case may be, subject to the provisions of section 6, either -
(i) .. .. .. .. .. ..
(ii)where such facilities are not available with the hospital or the medical practitioner, or the person request for a transfer arrange for the transfer of the person to a hospital or to another medical practitioner which or who in their opinion has the necessary facilities for such further medical examination, stabilization and further medical treatment and then the provisions of section 8 shall apply."
(E) Refusal for transfer for treatment or transfer If a person injured in an accident or in serious medical condition refuses to give consent either for emergency medical treatment (i.e. 97 including stabilization) or for treatment after stabilization, the hospital or medical practitioner must get his written informed consent. Similarly, where for lack of facilities in the hospital or with the medical practitioner, or where the patient requests for transfer, he has to be transferred to another hospital or medical practitioner, and the person refuses for transfer, the person's written informed refusal must be obtained and if such person refusesto give consent, the duty of the hospital or medical practitioner, as provided in Section 5, shall cease to exist. This is provided in proviso to section 5. Proviso reads as follows:
"Provided that where such person refuses to give consent for treatment or transfer, as stated in section 6, thereafter, duty of the hospital or medical practitioner shall cease to exist."
This is provided in section 6 of the Draft Bill.
"Refusal by the person to consent for treatment or transfer
6. Where in respect of a person referred to in section 3, it has been determined that he requires emergency medical treatment or has to be transferred as stated in section 5, and where such person is mentally or physically in a position to refuse in writing,
(i) refuses to consent to emergency medical treatment after the hospital or the medical practitioner, as the case may be, has offered to provide further emergency medical treatment, and after being informed of the risks and benefits of such emergency medical treatment, the duty doctor in the hospital or the medical practitioner shall take all reasonable steps to obtain the person's 98 written informed consent in respect of his refusal to consent for emergency medical treatment; or
(ii)refuses to consent for transfer to another medical facility after the hospital or the medical practitioner, as the case may be, has offered to transfer him to another medical facility in accordance with section 8, and after being informed of the risks and benefits to such person of such transfer, the duty officer in hospital or the medical practitioner, shall take all reasonable steps to obtain the person's written informed consent in respect of his refusal to consent to such transfer."
(F) No transfer before stabilization:
As proposed in section 7 of the Bill, where a person requests for a transfer, referred to in section 5(ii), but is in an emergency medical condition which has not stabilized, he should not be transferred if facilities for stabilization are available without following the procedure; unless
(a) the person, upon being informed of the obligations of the duty doctor or of the medical practitioner as stated in section 3 and of the risk of transfer, requests for transfer in writing without stabilization, to another medical facility, or
(b) the duty doctor in the hospital or the medical practitioner, as the case may be, has signed a certificate that, based upon information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate emergency medical treatment at another hospital or with another medical practitioner outweigh the increased risks to the person and in the case of a 99 pregnant woman under labour, to the unborn child, of the effects of transfer, and unless the transfer is an 'appropriate transfer'.
(G) Transfer must be an appropriate transfer: Care during transfer, ambulance & records etc.:
For transfer, the hospital or medical practitioner must call for an ambulance and it shall be the duty of agencies running ambulances to provide the ambulance without raising any objection that it should be paid first. If no ambulance is available, the hospital or medical practitioner has to seek the help of the police to requisition any vehicle for transport. The transferring hospital or doctor must provide for medical facilities during the transport. Section 8 which deals with these aspects under the heading 'appropriate transfer' reads as follows:
"Appropriate transfer
8. A transfer to another hospital or medical practitioner shall be treated as an appropriate transfer if
(a) the transferring hospital or the medical practitioner provides medical treatment within its or his capacity which minimizes the risks to the health of the person and in the case of a pregnant woman in labour, the health of the unborn child during such transfer, and 100
(b) the receiving hospital or the medical practitioner has available space, qualified personnel and infrastructure for providing emergency medical treatment to the person and thereafter, in so far as the stabilization and further medical treatment are concerned, the duties cast under section 3 shall apply to the receiving hospital or the receiving medical practitioner.
(c) the transferring hospital or medical practitioner sends to the receiving hospital or receiving medical practitioner
(i) all medical records (or copies thereof), relating to the screening and the emergency medical condition of the person, which are available at the time of such transfer, including records relating to the person's medical condition, observation of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent, if any, and
(ii) a certificate of the hospital or medical practitioner that, based upon the information available at the time of transfer that the medical benefits reasonably expected from the provision of appropriate medical treatment at the receiving hospital outweigh the increased risks, on account of the transfer, to the person and, in case of a women under labor, to the unborn child.
(d) the transferring hospital or medical practitioner provides necessary medical facilities including life support systems and qualified personnel within the capacity of the transferring hospital or medical practitioner, to accompany the person during the 101 period covered by transport to the receiving hospital or receiving medical practitioner.
(e) the transferring hospital or medical practitioner has informed, by telephone or otherwise, the hospital or medical practitioner to which or to whom the person is being transferred that a person in an emergent medical is being transferred and furnish the details of the person's condition, Provided that where any ambulance or other transport vehicle is not available with the transferring hospital or medical practitioner, it or he shall call for the services of an ambulance or other transport vehicle and in case of non-availability thereof, shall seek the assistance of any police authorities having jurisdiction over the area where the transferring hospital or the clinic of the medical officer is located, for requisitioning a transport vehicle, Provided further that when any ambulance or vehicle is called for, by such hospital or medical practitioner or by police authorities as aforesaid, the agency running the ambulance or the owner or person operating the vehicle shall not raise any objection to provide the ambulance or other vehicle on any of the grounds referred to in clauses (i) to (iv) in section 3."
(H) Maintenance of Records by hospitals and medical practitioners:
It is necessary that the hospital or medical practitioner maintain records. The details are set out in section 9 of the Draft Bill.102
"Every hospital, medical practitioner, -- shall maintain a separate register containing the following information:
(a) name and address of the person injured, date or place of accident as reported, nature of injuries and other relevant details and the person who brought him,
(b) name and address of the person purportedly in emergency medical condition, nature of emergency and nature of medical condition and the person who brought him,
(c) details of the screening tests done and the determination of emergency condition,
(d) whether the person is in a position to give informed consent for emergency medical treatment including stabilization or for transfer or if he refused them,
(e) whether emergency medical treatment was not given for want of facilities, if so, which facilities,
(f) nature of tests done, results thereof, surgery conducted, who attended, time, date and hours of treatment,
(g) details of transfer to another hospital or medical practitioner
(h) details of fee paid to consultants or laboratories,
(i) details of expenditure incurred,
(j) other particulars to show that the hospital or doctor complied with its or his duties under the Act.
(k) Such other particulars as may be prescribed."
(I) Scheme for reimbursement to hospitals and medical practitioners, ambulance for transfer etc. to be framed by State Governments: States to allocate Funds:
103The State Government must frame a scheme for reimbursement to hospitals, medical practitioners, ambulances and those who provide vehicles for transport. The State must notify an authority which will deal with reimbursement. The State must set apart substantial money for purpose of reimbursement. The scheme must provide for the procedure for reimbursement. The scheme must be published in State Gazette. These are provided in the Draft Bill in section 10, which reads as follows:
"Scheme of State Government for reimbursement of expenses 10(1) The State Government shall frame a scheme, within one month from the date of commencement of this Act, for the purpose of reimbursement of the expenses incurred in the course of performance of the duties referred to in sections 3 to 9, by a hospital or medical practitioner or an agency which has provided ambulance facilities or other person who has provided a vehicle for transfer as mentioned in clause (e) of section 8.
(2) Such a scheme shall, inter-alia, refer to -
(a) the authority which will be in-charge of reimbursement of expenses,
(b) the conditions which have to be satisfied before reimbursement of expenses can be granted,
(c) the manner in which applications may be made for reimbursement and what supporting documents have to be submitted or to whom the reimbursement can be made, 104
(d) the manner in which the material produced by the person seeking reimbursement has to be scrutinized or verified,
(e) the procedure for giving a hearing to the applicant in respect of the reimbursement claimed,
(f) the time frame for reimbursement,
(g) the mode of repayment, and
(h) other details which may result in an effective scheme of reimbursement of expenses incurred.
(1) The State Government shall allocate necessary funds for the purpose of reimbursement of the expenses incurred by those referred to in sub-section (1), (2) The scheme framed under sub-section (1) and subsequent changes, if any, made thereto from time to time, shall be published in the Gazette of the State Government.
(J) Penalties for breach of duties by hospitals, medical practitioners, ambulances for transfer etc.:
There must be penalties against hospitals, medical practitioners or those who run ambulances or those whose vehicles are requisitioned by police for transport.
There must be provision for imprisonment or fine for those who fail in their duties - including those in-charge of management or responsible for giving emergency medical aid in a hospital.
There must be provision for cancellation of licenses to hospitals.105
There must also be provision for disciplinary action against medical practitioners.
This shall be in addition to penalties prescribed under any other law in force.
These are all provided in section 11.
"Penalties
11. (1) Any person managing or responsible for the management of the hospital or a medical practitioner or agency running an ambulance or owner or operator of a vehicle which or who refuses to perform all or any of the duties referred to in sections 3 to 9, without justifiable reason, shall be liable for punishment by way of imprisonment for a period which may extend upto six months or for fine which may extend upto rupees ten thousand or for both. (2) Any hospital refusing to perform the duties referred to in sections 3 to 9 without justifiable reason, may be proceeded against for suspension or cancellation of any of its licenses under which it is running the hospital, in addition to the penalty referred to in sub-
section (1) that may be imposed on the persons owning or managing the hospital.
(1) Any medical practitioner attached to a hospital or any other medical practitioner who refuses to perform the duties referred to in sections 3 to 9, without justifiable reason may, in addition to the penalty provided in sub-section (1), be subjected to such disciplinary action as may be determined by the State Medical Council.
106(2) These provisions will be in addition to the penalties prescribed under any other law in force."
(L) Rules to be framed by State Government:
We have provided that the State Government may make rules for implementation of the provisions of the Act and that the rules will be published in the State Gazette. This is provided in section 12.
"Rule making powers
12. (1) The State Governments may make rules for the purpose of enforcement of the provisions of this Act and publish the same in the State Gazette.
(2) The rules referred to in sub-section (1) shall be laid before the legislature within a period of one month from the date of publication of the rules in the State Gazette as stated in sub-
section (1)."
107The Draft of the Bill is annexed with this Report. We recommend accordingly.
( Justice M. Jagannadha Rao )
Chairman
( R.L. Meena )
Vice Chairman
Dated: 31.08.2006 ( Dr. D.P. Sharma )
Member-Secretary
108
ANNEXURE
MODEL LAW
ON
MEDICAL TREATMENT AFTER ACCIDENTS AND
DURING EMERGENCY MEDICAL CONDITION AND WOMEN IN LABOUR, BILL A Bill to mandate emergency medical treatment by hospitals and medical practitioners to victims of accidents and those in other emergency medical condition including women in labour without raising any objection or objections that the cases are medico-legal cases or any other objection and without demanding any payment as a condition precedent for such treatment and to provide for scheme for reimbursement of emergency medical treatment and for other matters incidental thereto:
Chapter I Preliminary Short title and commencement
1. (1) This Act may be called the Medical Treatment After Accidents and During Emergency Medical Condition Act, 2006.
(2) It shall extend to the territories of the State of .....
(3) It shall come into force on such date as the State Government may, by notification in the Official Gazette appoint.
109Definitions
2. In this Act, unless the context otherwise requires:
(a) 'accident' means any accident giving rise to severe bodily pain or serious injury to human beings who are in emergency medical condition;
(a) 'emergency medical condition' means a medical condition manifesting acute symptoms of sufficient severity (including severe pain) where the absence of emergency medical treatment could reasonably be expected to result in
(i) death of the person, or
(ii) serious jeopardy in the health of the person (or in the case of a pregnant woman, in her health and the health of the unborn child), or
(iii) serious impairment of bodily functions, or
(iv) serious dysfunction of any bodily organ or part.
Explanation: In the case of a pregnant woman who is having contractions, an 'emergency medical condition' shall be deemed to exist where
(i) there is no adequate time to effect a safe transfer of the person to another hospital before delivery, or
(ii) the transfer may pose a threat to the health or safety of the woman or her unborn child.
110(b) 'emergency medical treatment' means the action that is required to be taken, after screening of a person injured in an accident or who is in an emergency medical condition, as to the stabilization of the person and the rendering of such further treatment as may, in the opinion of the hospital or medical practitioner be necessary for the purpose of preventing aggravation of the medical condition of the person or his death and in the case of a pregnant woman, for the purpose of a safe delivery and safeguarding the life of the woman and the child.
(c) 'medical practitioner' means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and who is enrolled in a State Medical Register as defined in clause (k) of that section and includes a private medical practitioner;
(d) 'hospital' includes a nursing home, clinic medical center, medical institution having hospital emergency department or facilities for emergency medical treatment;
(e) 'prescribed' means prescribed by Rules made under this Act;
(f) 'stabilize' means, with respect to an emergency medical condition
(i) to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or 111
(ii) to provide, with respect to a pregnant woman who is having contractions, for the safe delivery of the child (including the placenta), and the word 'stabilized' shall be understood accordingly.
(g) 'transfer' means the movement (including the discharge) of an individual outside a hospital's facilities at the direction of any designated medical practitioner employed by a hospital but does not include an individual who has been declared dead or leaves the facility without the permission of the doctor attending on him. Explanation: 'designated medical practitioner' means any practitioner employed by the hospital for directing transfer outside a hospital's facility and includes any other medical practitioner temporarily discharging the functions of such designated medical practitioner.
Duty of duty doctors in hospitals and private medical practitioners
3. It shall be the duty of every hospital and every private medical practitioner to immediately attend on every person involved in an accident or who is purportedly in an emergency condition, when such a person has come or has been brought to the hospital or to the private medical practitioner and screen or transfer such person as stated in section 4 and when the screening reveals the existence of an emergency medical condition, to stabilize or transfer such person as stated in section 5 and afford them, such medical treatment as may be urgently called for, -
112(i) without raising any objection that it is a medico-legal case requiring information to the police authorities,
(ii) whether or not such a person is immediately in a position to make payment for the screening and emergency medical treatment, and without insisting on payment as a condition precedent.
(iii) whether or not such a person has medical insurance or is a member of any medical scheme of the person's employer or to a scheme which otherwise provides for medical reimbursement, and
(iv) without raising any other unreasonable objection.
Screening of the person
4. Whenever such a person referred to in section 3, comes or is brought to the hospital or medical practitioner, it shall be their duty to provide an appropriate medical screening examination within the capability of the hospital or the medical practitioner, as the case may be, for the purpose of determining whether or not an emergency medical condition exists.
Provided that if such hospital or medical practitioner, as the case may be, is not having capability for conducting appropriate medical screening examination, it shall be their duty to arrange for the transfer of the person to a hospital or to another medical practitioner which or who in their opinion has the necessary capabilities for such medical screening examination.
Stabilizing the person and transfer 113
5. Wherever in respect of a person referred to in section 3, screening, as stated in section 4 has been done and it has been determined that an emergency medical condition exists which requires to be urgently treated, it shall be the duty of the hospital or medical practitioner, as the case may be, either -
(h) to provide, within the staff and facilities available at the hospital or with the medical practitioner, such further medical examination and such medical treatment as may be required to stabilize his medical condition, or
(ii) where such facilities are not available with the hospital or the medical practitioner, or the person requests for a transfer, arrange for the transfer of the person to a hospital or to another medical practitioner which or who in their opinion has the necessary facilities for such further medical examination, stabilization and further medical treatment and then the provisions of section 8 shall apply.
Provided that where such person refuses to give consent for treatment or transfer, as stated in section 6, thereafter, duty of the hospital or medical practitioner shall cease to exist.
Refusal by the person to consent for treatment or transfer
6. Where in respect of a person referred to in section 3, it has been determined that he requires emergency medical treatment or has to be transferred as stated in section 5, and where such person is mentally or physically in a position to refuse in writing, 114
(i) refuses to consent to emergency medical treatment after the hospital or the medical practitioner, as the case may be, has offered to provide further emergency medical treatment, and after being informed of the risks and benefits of such emergency medical treatment, the duty doctor in the hospital or the medical practitioner shall take all reasonable steps to obtain the person's written informed consent in respect of his refusal to consent for emergency medical treatment; or
(ii) refuses to consent for transfer to another medical facility after the hospital or the medical practitioner, as the case may be, has offered to transfer him to another medical facility in accordance with section 8, and after being informed of the risks and benefits to such person of such transfer, the duty doctor in hospital or the medical practitioner, shall take all reasonable steps to obtain the person's written informed consent in respect of his refusal to consent to such transfer.
Restricting transfer till person is stabilized
7. Where a person referred to in section 3, requests for transfer but is in an emergency medical condition which has not stabilized, the hospital or the medical practitioner, as the case may be, shall not transfer the person if facilities for stabilization are available, unless
(i) the person, upon being informed of the obligations of the duty doctor or of the medical practitioner as stated in section 3 and of 115 the risk of transfer, requests for transfer in writing without stabilization, to another medical facility, or
(ii) the duty doctor in the hospital or the medical practitioner, as the case may be, has signed a certificate that, based upon information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate emergency medical treatment hospital or with another medical practitioner outweigh the increased risks to the person and in the case of a pregnant woman under labour, to the unborn child, of the effects of transfer, and (2) the transfer is an appropriate transfer as stated in subsection (8).
Appropriate transfer
8. A transfer to another hospital or medical practitioner shall be treated as an appropriate transfer if
(a) the transferring hospital or the medical practitioner provides medical treatment within its or his capacity which minimizes the risks to the health of the person and in the case of a pregnant woman in labour, the health of the unborn child during such transfer, and
(b) the receiving hospital or the medical practitioner has available space, qualified personnel and infrastructure for providing emergency medical treatment to the person and thereafter, in so far as the stabilization and further medical treatment are concerned, 116 the duties cast under section 3 shall apply to the receiving hospital or the receiving medical practitioner.
(c) the transferring hospital or medical practitioner sends to the receiving hospital or receiving medical practitioner
(i) all medical records (or copies thereof), relating to the screening and the emergency medical condition of the person, which are available at the time of such transfer, including records relating to the person's medical condition, observation of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent, if any, and
(ii)a certificate of the hospital or medical practitioner that, based upon the information available at the time of transfer that the medical benefits reasonably expected from the provision of appropriate medical treatment at the receiving hospital outweigh the increased risks, on account of the transfer, to the person and, in case of a women under labor, to the unborn child.
(d) the transferring hospital or medical practitioner provides necessary medical facilities including life support systems and qualified personnel within the capacity of the transferring hospital or medical practitioner, to accompany the person during the period covered by transport to the receiving hospital or receiving medical practitioner.
(e) the transferring hospital or medical practitioner has informed, by telephone or otherwise, the hospital or medical practitioner to which or to whom the person is being transferred that a person is 117 an emergent medical is being transferred and furnish the details of the person's condition, Provided that where any ambulance or other transport vehicle is not available with the transferring hospital or medical practitioner, it or he shall call for the services of an ambulance or other transport vehicle and in case of non-availability thereof, shall seek the assistance of any police authorities having jurisdiction over the area where the transferring hospital or the clinic of the medical officer is located for requisitioning a transport vehicle, Provided further that when any ambulance or vehicle is called for by such hospital or medical practitioner or by police authorities as aforesaid, the agency running the ambulance or the owner or person operating the vehicle, shall not raise any objection to provide the ambulance or other transport vehicle on any of the grounds referred to in clauses (i) to (iv) in section 3.
Maintenance of records
9. Every hospital, medical practitioner, -- shall maintain a separate register containing the following information:
(a) name and address of the person injured, date or place of accident as reported, nature of injuries and other relevant details, and the person who brought him,
(b) name and address of the person purportedly in emergency medical condition, nature of emergency and nature of medical condition, and the person who brought him, 118
(c) details of the screening tests done and the determination of emergency condition,
(d) whether the person is in a position to give informed consent for emergency medical treatment including stabilization or for transfer or if he refused them,
(e) whether emergency medical treatment was not given for want of facilities, if so, which facilities,
(f) nature of tests done, results thereof, surgery conducted, who attended, time, date and hours of treatment,
(g) details of transfer to another hospital or medical practitioner
(h) details of fee paid to consultants or laboratories,
(i) details of expenditure incurred,
(j) other particulars to show that the hospital or doctor complied with its or his duties under the Act.
(k) Such other particulars as may be prescribed.
Scheme of State Government for reimbursement of expenses
10. (1) The State Government shall frame a scheme, within one month from the date of commencement of this Act, for the purpose of reimbursement of the expenses incurred in the course of performance of the duties referred to in sections 3 to 9, by a hospital or medical practitioner or an agency which has provided ambulance facilities or other person who has provided a vehicle for transfer as mentioned in clause (e) of section 8.
119(2) Such a scheme shall, inter-alia, refer to -
(a) the authority which will be in-charge of reimbursement of expenses,
(b) the conditions which have to be satisfied before reimbursement of expenses can be granted,
(c) the manner in which applications may be made for reimbursement and what supporting documents have to be submitted or to whom the reimbursement can be made,
(d) the manner in which the material produced by the person seeking reimbursement has to be scrutinized or verified,
(e) the procedure for giving a hearing to the applicant in respect of the reimbursement claimed,
(f) the time frame for reimbursement,
(g) the mode of repayment, and
(h) other details which may result in an effective scheme of reimbursement of expenses incurred.
(3) The State Government shall allocate necessary funds for the purpose of reimbursement of the expenses incurred by those referred to in sub-section (1), (4) The scheme framed under sub-section (1) and subsequent changes, if any, made thereto from time to time, shall be published in the Gazette of the State Government.
120Penalties
11. (1) Any person managing or responsible for the management of the hospital or a medical practitioner or agency running an ambulance or owner or operator of a vehicle which or who refuses to perform all or any of the duties referred to in sections 3 to 9, without justifiable reason, shall be liable for punishment by way of imprisonment for a period which may extend upto six months or for fine which may extend upto rupees ten thousand or for both.
(2) Any hospital refusing to perform the duties referred to in sections 3 to 9 without justifiable reason, may be proceeded against for suspension or cancellation of any of its licenses under which it is running the hospital, in addition to the penalty referred to in sub- section (1) that may be imposed on the persons owning or managing the hospital.
(3) Any medical practitioner attached to a hospital or any other medical practitioner who refuses to perform the duties referred to in sections 3 to 9, without justifiable reason may, in addition to the penalty provided in sub-section (1), be subjected to such disciplinary action as may be determined by the State Medical Council.
(4) These provisions will be in addition to the penalties prescribed under any other law in force.
Rule making powers
12. (1) The State Governments may make rules for the purpose of enforcement of the provisions of this Act and publish the same in the State Gazette.
121(2) The rules referred to in sub-section (1) shall be laid before the legislature within a period of one month from the date of publication of the rules in the State Gazette as stated in sub- section (1).