Medical Law Cases - For Doctors: Table of Contents

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July 2011
Volume 4 | Issue 7 Content is not free, to access this content, you need to either become a subscriber or purchase individual PDF

Page Nos. 91-106

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CASES

	Power failure and time required in switching over to alternative power source - Precautions	p. 91
	Power generators / Invertors are now mandatory and standard equipment for all hospitals and nursing homes. It is equally important to ensure that in case of a power failure the time required to switch to the alternative power source is minimal especially for critical departments like the Intensive Care Unit (ICU), Operation Theater (OT), and so on. (In this case the court very specifically observed that "a hospital which is attending delivery, including performance of surgery, should be equipped with basic amenities, apprehending problem, including power failure". The court was commenting on the patient's allegations that during surgery due to power failure there was no power for 15 minutes resulting in defective surgery.). Completely and properly written medical records always persuade the courts to draw positive inference in favor of the doctor / hospital. (In this case the court appreciated that in the surgery notes, something like 'Urine output nil at the end of surgery' was also specifically recorded.) Correct, complete, regular, and on-time information about the patient's condition to relatives / attendants is not only legally required, but it also reduces chances of friction with the patient in future. When recording a history of the patient, complaint/s as described by the patient must be duly recorded. (In this case the gynecologist (OP) had advised the patient to consult her immediately if she suspected any change in the fetal movement, but the patient contacted her after three days. In the patient's history it was duly recorded that she was 'not able to feel the fetal movement, since three days'. This small noting helped the gynecologist (OP) in proving her innocence in the court.) Confirming blood group, proper cross-matching, and requisitioning blood, if required, must be completed well before starting a procedure / surgery. The patient, especially critical ones, must be continuously monitored and vitals must be duly recorded at requisite intervals.
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	Deficiency of service - Failure to provide requisite documents/information to patients having medi-claim policies	p. 93
	It is advisable that hospitals/nursing homes must have suitable columns in the admission form for the patients to indicate whether the patient has any medi-claim policy. The hospital staff must ensure that this column is duly filled by the patient. (In this case, the hospital (OP) was held negligent for not providing requisite documents/information to the patient to claim medi-claim. But the hospital had stated in defense that the patient had never disclosed that she had a medi-claim policy.) It is advisable that all the facilities available, their respective charges and all other terms and conditions are disclosed to the patient well in advance. Law does not forbid a doctor/hospital to charge according to its own will subject to the condition that the same has been disclosed to the patient in advance. Handing over a printed pamphlet or brochure having all the aforesaid information to the patient and taking acknowledgment on a duplicate copy thereof is one such means to avoid any misunderstanding with the patient and also a useful weapon in legal defense. (In this case, the patient had alleged that the hospital (OP) had overcharged him as he was charged even for the check-in and check-out days.) It is obligatory to prepare and provide discharge certificate, sterilization certificate, transfer note, referral note, etc. to the patient and preserve a copy thereof bearing patient's acknowledgment in the medical records. Do not wait for the patient to demand a copy of the same. Failure to meet a patient's demand for a particular type of room or facility for bonafide reason is not negligence. But it is advisable to clearly and properly communicate the reasons for refusal. Inform the patient clearly about the availability of the type of rooms while admitting. All efforts must be made to answer communications made by the patient, especially if some demand or a complaint is made. (In this case, the patient had sent two letters and a legal notice to the hospital (OP) seeking discharge certificate and sterilization certificate. The court held that the hospital had not given the said documents relying solely on the absence of any reply from the hospital (OP) to the said communications.)
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	Does the legally prescribed "Accepted Medical Practice" include "prevailing practice"?	p. 95
	Prevailing practice contrary to principles of medical science constitutes negligence. Any medical act contrary to the science of medicine, even if it is commonly practiced by a section of doctors or doctors from a specific area, cannot be a justification in a court of law. In simple terms, a medical act will be within the legally prescribed parameters of "Accepted Medical Practice" (also known as Bolams law) if it is in accordance with the science of medicine and practiced by at least a respectable minority of doctors of that specialty. (In this case, the doctor (OP) had justified prescription of a particular drug on the ground that it was the "practice prevailing in the area", but this justification was rejected by the court.) Recording proper age of the patient is mandatory, especially in prescription, admission form, consent form and discharge form. In case the ailment is beyond your expertise and specialization, the patient must be forthwith referred to an appropriate consultant/a facility irrespective of the patient's/relative's/attendant's insistence to treat the patient. Treating a patient outside expertise and skill merely on a patient's insistence is no defense for a doctor in the court. Care and caution is required in deciding dose and the interval between doses, especially in case of sensitive drugs. , Prescription must at least record the age, history, symptoms, diagnosis and not simply the drugs prescribed. Prescribing a drug without conducting the requisite investigations is negligence. Failure of the patient to get hospitalized in spite of medical advice must be specifically recorded.
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	Culpable Silence - Failure to inform the patient about an earlier negligent medical act	p. 97
	Keeping silence and not informing the patient about a mishap or wrong committed by the previous doctor is negligence. The fact that such information has been given to the patient must be duly recorded in the patient's medical records. More care and caution is required in performing a corrective surgery especially when the same is required to be performed to rectify the mistake or negligence of another doctor. In such cases, a proper referral letter of the earlier doctor must be insisted upon, the same must be duly preserved with the patient's medical records, and the patient's medical records must be prepared carefully. Law clearly lays down that a promise for payment in future is a valid consideration. Hence, even if a hospital / doctor does not receive actual payment from the patient, they will be answerable in a consumer court if a promise had been made by the patient to pay in future. The fact that a patient has not paid the agreed fees cannot bar that patient from approaching the courts with allegations of medical negligence. The doctor / hospital merely has a right to file a civil suit for recovery. In case the patient seeks discharge contrary to medical opinion, the patient must be asked to sign a proper 'Discharge Against Medical Advice Form'. Such forms must invariably record the medical advice to continue hospitalization, the patient's insistence to be discharged, the probable consequences of such a discharge, the fact that the patient has been explained both the facts, that is, hospitalization needs to be continued and the risks involved due to premature discharge.
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	Consequences of failure to record accidents / mishaps in medical records	p. 99
	In case a medical mishap / accident occurs, it is imperative to record the same in the patient's medical records. Failure to do so is often perceived as an attempt to cover up the incident and courts usually draw an adverse inference against the doctor / hospital in such cases. (In this case, the vein flow of the patient had been displaced during labor resulting in certain complications. The court drew adverse inference against the doctor in these words, "If the doctor had adopted the correct procedure and if anything had happened to the patient, as a prudent doctor in the normal course, she should have noted the same in the discharge summary or in the case record, it is not so as seen from the case record.") In case of any mistake, error or accident, once the same is identified, appropriate action must be taken promptly. The incident as well as the remedial action must be duly recorded in the patient's medical records.
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	Legal relevance of date and patient's name on X-ray / sonography / MRI plates	p. 101
	Every X-ray / sonography / MRI plate must clearly show the complete name of the patient as well as the date of the same. Absence of name and date in an X-ray / sonography / MRI plate may not only confuse all those involved in managing the patient, but will also have no evidentiary value in a court. (In this case, the patient's allegation that a drill bit was left in his leg by the orthopedic surgeon (OP) during surgery was rejected by the court because the X-ray plate produced by the patient to support this allegation did not have any name or date. On the other hand, if such an X-ray would have been produced by the orthopedic surgeon (OP) in defense, it would also have met with the same fate in the court.)
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	Medical records of the patient - Property of the doctor/hospital	p. 103
	Law clearly mandates that the medical records of the patient are the property of the doctor/hospital and not of the patient. The patient merely has two rights and nothing further - right to inspect his/her medical records after taking permission from the hospital/doctor and right to get copies of the same within 72 hours of making such a request. In case, the medical records are taken away by the patient forcefully or otherwise, a proper complaint must be made to the police as if valuables have been stolen. A copy of the complaint bearing police acknowledgment must be properly preserved in the medical records. This police complaint will not only help in retrieving the medical records, but also prove as a valuable defense in court as and when allegations of medical negligence are made by the patient. (In this case, the court believed in the defense put forth by the doctor (OP) that the patient had taken away the case sheets, and hence discharge summary could not be prepared without insisting on a police complaint. But there are a number of reported cases where, in similar circumstances, the court has taken a diametrically opposite view and has disbelieved a doctor merely because no police complaint has been filed. It is therefore advisable to lodge a police complaint in all cases where medical records are lost, destroyed, taken away by the patient or stolen. A simple letter to the local police station with the necessary particulars is all that is required to be done.) It is mandatory that every patient on discharge must be given a proper discharge card / summary. Even in cases where medical records are not available for any reason whatsoever, a nominal discharge card / summary must be prepared wherein the reason for incomplete recording must be specifically noted.
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	Precautions - Communicating in a professional capacity	p. 105
	Sending letters, giving certificates or acting in professional capacity on a patient's request could be risky. Before making any professional communication be sure that you are permitted to do so. (In this case, the patient was diagnosed with cancer at the hospital (OP), which later turned out to be incorrect. The hospital's defense that it was provisional diagnosis was turned down by the court relying on an authorization letter received by the hospital (OP) from the patient's insurer guaranteeing payment for radiotherapy and chemotherapy. The hospital (OP) had clarified that they had sought this letter only because the patient had requested them to do so. Patient's making such requests is not unknown in India). Provisional diagnosis must be clearly and specifically recorded as such - distinct from the final diagnosis. (In this case, had the doctor (OP) clearly recorded in the medical records that diagnosis of cancer was a provisional one, perhaps he would have been on a firmer ground in the court). In appropriate cases, the patient must be referred to another consultant for confirmation of a diagnosis. In case the patient refuses, neglects or fails to follow this advice, it must be specifically recorded in the patient's medical records.
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