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MEDICAL AND HEALTH LAW

(Course Outline)
SEMINAR PAPER- 1
Session 2015-16

NATIONAL LAW UNIVERSITY ODISHA, CUTTACK


(established by Orissa Act IV of 2008)
Kathajodi Campus, Sector-13, CDA, Cuttack-753015, Odisha, India

Course Designed By:


Snigdha Singh
Research Associate cum Teaching Assistant

INTRODUCTION AND OBJECTIVE OF THE COURSE


The course introduces to the students the general interface between Law
and Medicine and deals with constitutional and procedural perspectives of
Law and Medicine. It discusses legal and ethical issues and attempts to
initiate fresh perspectives on the same. The interface between law, medicine
and ethics is a subject of great contemporary interest and relevance and new
developments in medical practice and research are constantly in the
headlines. Advancements in knowledge create new challenges, on an almost
weekly basis, that lawyers, judges, medical professionals and the public find
themselves struggling to address.
It introduces the basic principles underlying the doctor patient relationship,
concept and development of medical negligence and remedies available
under various laws and judicial approach with respect to medical
negligence.
There are new and emerging fields in the area of law and medicine and the
course at hand focusses on few of those emerging issues like Assisted
Reproductive Techniques and Surrogacy, Human Organ Transplantation,
Medical Termination of Pregnancy, Physician Assisted Suicides, and the like.
The aim of the first two modules is to explore the critical relationship
between the law, and the practice of medicine, in order to set the
groundwork for discussions in the more topic-specific modules in the second
part of the course.
TEACHING LEARNING METHODOLOGY

The

methodology

will

involve

lecture

cum

discussion,

assignments,

presentations and case analysis. The reason for adoption of such


methodology is to encourage participation and discussions in class to help
students formulate ideas and opinions on the subject and to encourage
research.

EVALUATION SYSTEM
The evaluation system of National Law University Odisha for under graduate
course encourages research, promotes continuous review and ensures
transparent evaluation system. In order to do so, detailed evaluation reports
of mode adopted for assessment in the form of projects, assignments,
presentations, group discussions and the like will be given to the students.

PART A: GENERAL INTRODUCTION


MODULE -I
INTRODUCTION
1. Inter-relationship between law and medicine/health
2. Public and Private Health Law and Issues Related to Health Care System
3. Constitutional and Legal Framework
a. Right to Health as a Fundamental Right
b. Directive Principles of State Policy
4. International Covenants, Conventions, Declarations, Programmes and
the like
5. Provisions related to Health and Safety in other Legislations
Suggestive Readings:

Sabitha, A., Public Health: Enforcement and Law, Amicus Books, The
Icfai University Press

Dr. Lily Srivastava, Law and Medicine, 2nd Edition, Universal Law

Publishing Company
Mason and McCall Smith, Law and Medical Ethics, 9 th Edition, Oxford

University Press
Jain, M.P, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa,
Nagpur.

MODULE-II
LEGISLATIVE AND JUDICIAL PERSPECTIVE OF MEDICAL PROFESSION
AND MEDICAL MALPRACTICE
1. Basic Principles underlying Doctor-Patient Relationship
a. Existence of Duty of Care
b. Breach of Duty
c. Concept of Vicarious Liability
d. Defences available to Doctors
e. Informed Consent
f. Confidentiality
2. Concept of Medical Negligence
a. Origin and development of the Concept of Medical Negligence
b. Error of judgment and gross negligence
c. Remedies under various law
i. Law of Torts
ii. Criminal Law
iii. Consumer Protection Act
3. Judicial Assessment of the Concept
a. Position Before I.M.A v. V. P. Santha
b. Position Before I.M.A v. V. P. Santha
Suggestive Readings:

Rachel Mulheron, Medical Negligence: Non-Patient and Third Part

Claims, Ashgate
Tapas Kumar Koley, Medical Negligence and the Law in India- Duties,

Responsibilities and Rights, Oxford University Press


Bonnie F. Fremgen, Medical Law and Ethics, 4th Edition, Pearson

Marc Stauch and Kay Wheat with John Tingle, Text, Cases and Materials
on Medical Law and Ethics, 4th Edition, Routledge, Taylor and Francis

Group.
N. Sudarshan, Consent and Law: Problems and Perspectives, The Icfai

University Press.
Myrtle Flight, Law, Liability and Ethics, 5 th Edition, Delmar Cengage

Learning.
Charles Foster, Medical Law: A very Short Introduction, Oxford

University Press.
Anoop K Kaushal, Medical Negligence and Legal Remedies, Universal

Law Publication
Shaun D. Pattinson, Medical Law and Ethics, 2 nd Edition, Sweet and

Maxwell
Kerry J Breen, Stephen M Cordner, Colin J H Thomson, Vermon D
Plueckhahn, Good Medical Practice-Professionalism, Ethics and Law,

Cambridge University Press


Karen Judson and Carlene Harrison, Law and Ethics for the Health

Professionals, 6th Edition, McGraw Hill Publication


Claudia Carr, Unlocking Medical Law and Ethics, Hodder Education
Jean McHale and Marie Fox, Health Care Law, 2 nd Edition, Thomson

Sweet Maxwell
Jo Samanta and Ash Samanta, Concentrate Medical Law, Oxford

University Press
Jonathan Herring, Medical Law and Ethics, 5th Edition, Oxford

University Press
Emily Jackson, Medical Law, Text Cases and Materials, 3rd Edition,

Oxford University Press


Dr. Lily Srivastava, Law and Medicine, 2nd Edition, Universal Law

Publishing Company
Dr. Nandita Adhikari, Law and Medicine, Central Law Publications
Jonathan Herring, Medical Law, Core text Series, Oxford University
Press

List of Cases for Reference:


5

Martin D Souza v. Mohd. Ishfaq, (2009) 1 SCC (Cr) 958


INS. Malhotra (MS) v. Dr. A. Kriplani and others, (2009) 2 SCC (Cr) 561
Jacob Mathew v. State of Punjab, 2005 SCC (Cr) 1369
IMA v. V.P. Shantha, AIR 1996 SC 550
Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111

PART B: LAW, MEDICINE AND TECHNOLOGY


MODULE-III
BRAIN DEATH AND TRANSPLANTATIONS OF HUMAN ORGANS
1.
2.
3.
4.
5.

Background of Organ Transplantation


Death and Transplantation in India
Transplantation of Human Organs Act
Prevention of Commercial Dealings in Human Organs
Case Study: Tamil Nadu, the first State to amend the Transplantation of
Human Organs Act, 1994.

Suggestive Readings:

Transplantation of Human Organs Act 1994


Marc Stauch and Kay Wheat with John Tingle, Text, Cases and Materials
on Medical Law and Ethics, 4th Edition, Routledge, Taylor and Francis

Group.
Charles Foster, Medical Law: A very Short Introduction, Oxford

University Press.
Dr. Lily Srivastava, Law and Medicine, 2nd Edition, Universal Law

Publishing Company
Emily Jackson, Medical Law, Text Cases and Materials, 3rd Edition,

Oxford University Press


Shaun D. Pattinson, Medical Law and Ethics, 2nd Edition, Sweet and

Maxwell
Jean McHale and Marie Fox, Health Care Law, 2nd Edition, Thomson

Sweet Maxwell
Jonathan Herring, Medical Law and Ethics, 5th Edition, Oxford

University Press
Claudia Carr, Unlocking Medical Law and Ethics, Hodder Education

MODULE IV
ARTIFICIAL REPRODUCTIVE TECHNIQUES AND SURROGACY
1. Various Assisted/Artificial Reproductive Techniques
2. Meaning and Types of Surrogacy (Natural, Gestational, Commercial and
Altruistic Surrogacy)
3. Legal Position in Other Countries
4. Inadequacy of law- Constitutional and Legal Aspects of Surrogacy in
India
5. The ICMRs National Guidelines for Accreditation, Supervision and
Regulation of ART Clinics in India, 2005
6. Assisted Reproductive Technology (Regulation) Bill, 2010
7. Socio-legal and Ethical Issues
Suggestive Readings:

National Guidelines for Accreditation, Supervision and Regulation of ART

Clinics in India 2005


228th Report of the Law Commission of India
Assisted Reproductive Technology Bill 2010
Diksha Munjal Shankar, Medical Tourism, Surrogacy and the Legal
Overtones-The Indian Tale, Journal of the Indian Law Institute, Vo. 56,

No.1, January-March 2014


Anila V Menon, Assisted Reproductive Technologies: A Legal Dilemma,

The Icfai University Press


Jo Samanta and Ash Samanta, Concentrate Medical Law, Oxford

University Press
Jonathan Herring, Medical Law and Ethics, 5th Edition, Oxford

University Press
Emily Jackson, Medical Law, Text Cases and Materials, 3rd Edition,

Oxford University Press


Dr. Lily Srivastava, Law and Medicine, 2nd Edition, Universal Law

Publishing Company
Dr. Nandita Adhikari, Law and Medicine, Central Law Publications

Jonathan Herring, Medical Law, Core text Series, Oxford University


Press

List of Cases for Reference:

Baby Manji Yamada v. Union of India, (2008) 13 SCC 518


Jan Balaz v. Anand Municipality, AIR 2010 Guj., 21.
Kasturi lal Lakshmi Reddy v. State of Jammu and Kashmir, AIR 1980 SC
1992

MODULE- V
MEDICAL TERMINATION OF PREGNANCY
1. Position before Medical Termination of Pregnancy Act 1971- Shah
Committee Report
2. Medical Termination of Pregnancy Act 1971- An Overview
3. Socio-legal and Ethical Issues
4. Medical Termination of Pregnancy (Amendment) Act, 2002
Suggestive Readings:

Medical Termination of Pregnancy Act 1971


Medical Termination of Pregnancy (Amendment) Act, 2002
Medical Termination of Pregnancy Rules, 2003
Marc Stauch and Kay Wheat with John Tingle, Text, Cases and Materials
on Medical Law and Ethics, 4th Edition, Routledge, Taylor and Francis

Group.
Emily Jackson, Medical Law, Text Cases and Materials, 3rd Edition,

Oxford University Press


Kerry J Breen, Stephen M Cordner, Colin J H Thomson, Vermon D
Plueckhahn, Good Medical Practice-Professionalism, Ethics and Law,

Cambridge University Press


Shaun D. Pattinson, Medical Law and Ethics, 2nd Edition, Sweet and

Maxwell
Jean McHale and Marie Fox, Health Care Law, 2nd Edition, Thomson
Sweet Maxwell

Jonathan Herring, Medical Law and Ethics, 5th Edition, Oxford

University Press
Claudia Carr, Unlocking Medical Law and Ethics, Hodder Education

List of Cases for Reference:

Vinitha Ashok v. Lakshmi Hospital & Ors 2002 CPJ 4 (SC)


Smt .Savita Garg v. The Director, National Heart Institute 2005 CPJ (SC)
Webster v. Reproduction Health Services USA [1989]
Davis v. Davis (1989)15 FLR 2097
R v. Tait (1989) 3 WLR 891
R v. Sullivan (1988) 43 CCC3d 65

MODULE- VI
PRENATAL DIAGNOSTIC TECHNIQUES
1. Salient Features of Prenatal Diagnostic Techniques, Regulations &
Prevention of Misuse Act 1994
2. Abuse of Technology and its Impact
3. Legal Measures
Suggestive Readings:

Prenatal Diagnostic Techniques, Regulations & Prevention of Misuse Act

1994
Marc Stauch and Kay Wheat with John Tingle, Text, Cases and Materials
on Medical Law and Ethics, 4th Edition, Routledge, Taylor and Francis

Group.
Claudia Carr, Unlocking Medical Law and Ethics, Hodder Education

MODULE- VII
EUTHANASIA AND PHYSICIAN ASSISTED SUICIDES
1. Development of the Concept
2. Kinds of Euthanasia
3. Legal and Ethical Issues
9

4. Position in Other Countries


5. Judicial Approach (Right to die and Indian Constitution)
Suggestive Readings:

Marc Stauch and Kay Wheat with John Tingle, Text, Cases and Materials
on Medical Law and Ethics, 4th Edition, Routledge, Taylor and Francis

Group.
Dr. Lily Srivastava, Law and Medicine, 2nd Edition, Universal Law

Publishing Company
Emily Jackson, Medical Law, Text Cases and Materials, 3rd Edition,

Oxford University Press


Anila V Menon, Right to Life and Right to Death: A study, the Icfai

University Press.
Jonathan Herring, Medical Law and Ethics, 5th Edition, Oxford

University Press
Claudia Carr, Unlocking Medical Law and Ethics, Hodder Education
Mason and McCall Smith, Law and Medical Ethics, 9 th Edition, Oxford
University Press

List of Cases for Reference:

10

P. Rathinam v. Union of India


Maruti Shripati Dubal v. State of Maharastra; 1987 Cri.L.J 743 (Bomb)
Gian Kaur v. State of Punjab, AIR 1996 SC 946
Airdale NHS Trust v. Bland, 1993(1) All ER 821 (HL)
Aruna Ramchandra Shanbaug v. Union of India, 2011(3) SCALE 298

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