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   Table of Contents - Current issue
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December 2017
Volume 10 | Issue 12  Content is not free, to access this content, you need to either become a subscriber or purchase individual PDF
Page Nos. 185-200

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HTML if freeUltimate object of punishing doctors is "not getting or giving compensation but to have flawless service" as it is question of life and death and effects the quality of life Highly accessed article p. 185
  1. Doctors always wonder why courts are harsh on doctors and give out high compensation putting more burden on them. The court in this case has pointed out to the underlying reason thus: "The ultimate object of the enactment is not getting or giving compensation but to have flawless service. It is much more essential in the medical field as it is question of life and death and affect the quality of life."
  2. Failure to record in continuity or for a specific period of time could be construed as negligence. (In this case, one of the allegations was that nothing was recorded from "3.15 pm till birth of the child." Medical records produced before the court were pertaining to the period before 3.15 and after birth. The court drew adverse inference from this).
  3. Update yourself and follow the scientifically approved and accepted protocols stated in standard medical texts and journals, and SOPs/guidelines of medical associations/regulatory bodies/government bodies. (In this case, the guidelines published by the National Institute of Health and Family Welfare clearly mandated that, if the baby does not cry after birth, in that case do not slap the baby or hang it upside down but this is precisely what was done when the baby did not cry after birth).
  4. Medical records include investigation reports, prescription, and OPD card, and in a case of a hospitalized patient, the admission form, discharge card/summary, daily treatment chart, bed-head ticket, consent form, etc. A doctor/hospital is bound to preserve them, provide copies thereof to the patient on request, and produce them in court as and when required. (In this case, the doctor (OP) produced only the discharge ticket before the court. The court disapproved this conduct observing that "history and clinical findings recorded in the discharge ticket which are based on daily treatment chart or bed head ticket has not been submitted" and "it can very well be presumed that either no documents have been prepared or if prepared are against the non-applicants (doctor)").
  5. The importance of medical records has been aptly summarized by the court in this judgment as follows: "Medical record maintenance has evolved into a science of itself and form an important aspect of the management of a patient. ... It will help the doctor to prove that the treatment was carried out properly. The proper medical record it will help them in the scientific evaluation of their patient profile, helping in analysing the treatment results, and to plan treatment protocols. It is wise to remember that "Poor records mean poor defense, no records mean no defense."
  6. Complaints made by patients should be investigated with due diligence. (In this case, the patient alleged that the obstetrician (OP) did not investigate or take her complaint of reduced fetal movements seriously).
  7. Failure of the patient to follow medical advice should be specifically recorded.
  8. Reports of the investigations performed must be duly preserved and produced before the court. Failure to do so forces the court to draw adverse inference. (In this case, the doctor (OP) stated in the court that CT scan had reported that "cartex of the child is not developed," and therefore cerebral palsy was caused to the child due to genetic or birth defect. The court disbelieved as this CT report was not produced before the court).
  9. Perform requisite investigations when indicated. (In this case, the infant was suffering from severe birth asphyxia, but to ascertain this the first CT Scan was done when the infant was 3.5 months old whereas neuroimaging of the brain ought to have been done within 24 to 96 hours of birth).
  10. Ensure that doctors/nurses write their names and put signature/initials at appropriate places in medical records. (In this case, the court drew adverse inference observing that, even though the obstetrician (OP) had stated that a pediatric resident was in the labor room, the name was not disclosed / recorded).
  11. Manipulation/fabrication of medical records rarely work in courts. (In this case, one of the allegation was that "in column condition of baby at birth cuttings have been made and new words have been inserted").
  12. Compensation in cases of medical negligence is computed on the principle "that the aggrieved person (patient) should get that sum of money, which would put him in the same position if he had not sustained the wrong" (restitutio in integrum).
  13. Every aspect of the society needs to be transparent. Transparency is expected from health care providers also. In this case, the court lamented on the lack of transparency from the healthcare providers and directed "the Principal Secretary, Consumer Affairs and Principal Secretary, Medical and Health to formulate a scheme/guideline for keeping transparency in the hospital that patient and their attendants should know exact diagnosis, treatment procedure required and given to the patient from time to time without compromising the quality and urgent nature of the treatment and procedure given or required in the situation."
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Who is liable for a mop left in the abdomen while performing hernia repair and cesarean during the same anaesthesia? Obstetrician or General Surgeon? p. 188
  1. Greater coordination and team work is required when two different surgeries/interventions are performed during the same anesthesia as the probability of errors/complications increases. The liability for medical negligence in such cases is usually cast on both surgeons although this is not an absolute rule. In this case, a cesarean was performed by an obstetrician (OP) and an umbilical repair by a surgeon (OP) thereafter during the same anesthesia; a mop was admittedly left in the abdomen - an undisputed fact. The court held both the obstetrician and the surgeon (OPs) equally liable, even though in court both were holding the other responsible for this negligent act.
  2. Compensation granted by courts in case of medical negligence can be broadly classified under two heads - cost of treatment incurred by the patient/relatives and the harm and mental agony caused to the patient. This case is interesting as the patient was granted compensation for "unbearable pain for more than three months" and for removal of her left fallopian tube due to the delay in diagnosing that a mop was left during the surgery whereas her father was granted compensation for the amount spent on "investigation, hospitalization and treatment of his daughter."
  3. Any request from the patient/attendants for the services of a particular doctor should be duly recorded in the medical records. (In this case, one of the defenses of the obstetrician (OP), who was also the owner of the maternity home where the patient underwent caesarean, was that he invited the surgeon (OP2) to perform surgery at the request of the patient as the surgeon (OP) was related to the patient yet the patient sued both the obstetrician (OP) and the surgeon (OP)).
  4. Surgery notes should have details of the intervention done as well as the materials used. (In this case, the surgeon's (OP2) defense was that the umbilical repair was done after the caesarean section and the mop was left behind during the caesarean by the obstetrician (OP) and not by him. This defense was rejected by the court as there was no record pointing out that the surgeon (OP2) did not use any mop during the umbilical repair).
  5. Failure of the patient to follow medical advice must be documented in the medical records.In appropriate cases, the consequences of not following medical advice should be explained to the patient and duly recorded. (In this case, the surgeon (OP) stated in court that he had advised surgery to find the cause of post surgery pain but the patient refused. This fact was not documented, and hence rejected by the court. But, if it was true then perhaps the court would have been more lenient with the surgeon (OP). Documentation is both an art and a necessity in this era of rising medlegal problems).
  6. Reference letter to other medical professionals/hospitals should be carefully worded as these are important pieces of evidence in cases of medical negligence.
  7. Proper operation theatre(OT) protocol should be in place and must be followed scrupulously. The OT nurses have a vital role to play in implementing these protocols. (In this case, a properly trained nurse would have noticed the missing mop and brought it to the knowledge of the operating surgeons (OPs). The subsequent legal problems faced by the surgeon and the obstetrician (OPs) and the medical problems faced by the patient could have been avoided).
  8. Inform the patient specifically about any complication.
  9. It is advisable to perform appropriate investigations for postoperative complaint/s.
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Diagnostic pleural tap performed in the casualty in a non-hospitalized patient - "Caution was thrown to the winds,"says court p. 191
  1. It is always advisable to admit patient with complex medical condition rather than not doing so. Any reluctance or refusal of the patient for the same should be documented in the medical records. (In this case, the doctor (OP) had advised admission to the patient who was having medically complicated condition with jaundice, alcoholic hepatitis, liver ailment, etc. According to the doctor (OP) the patient was reluctant and hence the patient was treated on an OPD basis. Perhaps this fact was not recorded. Pleural tap was done in the casualty; the patient died within a few hours. The court held that this was negligence observing that "caution was thrown to the winds" by the doctor (OP)).
  2. Any procedure, even a minor one, always has a possibility of complication. It is, therefore, prudent to anticipate and make requisite arrangements for the same. (In this case the pleural tap was attempted in the casualty by the doctor (OP), and the spleen was punctured accidently due to which the patient died. The best course would have been to perform the procedure in the minor operation theatre anticipating complications).
  3. Post procedure observation of the patient, especially for known complications, should be a mandatory protocol and religiously followed. On observing the initial signs/symptoms of complications, the doctor who had performed the procedure must take appropriate measures. (In this case, after pleural tap was performed, the patient complained of mild dizziness but the doctor (OP) went off to see other patients and came back only after the patient collapsed. The patient died later).
  4. Follow the standard protocol acceptable to medical science at that point of time. (In this case, the doctor (OP) performed pleural tap relying on X-ray whereas the correct protocol was to perform the same under ultrasonography guidance. Spleen was punctured, the patient died, and the doctor (OP) was held negligent for this mistake).
  5. Doctors usually are under the mistaken notion that liability for negligence happening in an institution is only on the institution. In this case, the doctor (OP) was held negligent whereas the hospital (OP) was absolved of all charges of negligence. The court has very pointedly observed that the omission on the doctor's (OP) part was personally blameworthy.
  6. There is a crying need to relook at the compensation awarded by the courts in cases of medical negligence. In this case, the patient had asked for a compensation of 87 lakh and the court was forced to observe that "compensation cannot be a lottery or jackpot for a patient."
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Referring the body of a still born for postmortem, not mandatory but advisable p. 193
  1. Postmortem should be a rule and not an exception in any death where the cause of death is not known. In case of a still born, postmortem is not legally required whereas in case of death during the process of delivery or immediately after birth postmortem is required. It is advisable that even in case of still births if the patient/attendants insist or have expressed doubts, postmortem must be done. Consent of the relatives/attendants is not required for referring a dead body for postmortem. (In this case the allegation was that the hospital (OP) did not do an autopsy nor was the body of the still born handed over to the relatives. The defence of the hospital (OP) was that the relatives were reluctant for an autopsy and therefore the dead body was handed over to the relatives with a death certificate).
  2. The police must be intimated if the dead body that ought to have been referred for postmortem is taken away by the attendants forcefully/without permission. (In this case, the hospital (OP) stated in defense that the autopsy was not carried on the still born neonate as it was taken away by the relatives. If postmortem was required, the police ought to have been intimated which was obviously not done).
  3. Medical records can be a doctor's best friends or worst enemy. Discrepancies in medical records always give rise to suspicion, and hence due care must be taken in cross-verifying facts and figures. (In this case, the allegation was that the body of the still born baby was not handed over to the patients relatives nor an autopsy was done. The defense was that the dead body was handed over to the relatives, but because of discrepancies in documentation the court held that the hospital (OP) "has failed to establish that the body of the baby was handed over to the complainant (patient)." The court found that in one document it was noted that "patient not willing for autopsy - body handed over to relative with one Death certificate copy on 22.08.2009 at 11.45 pm" whereas in another document it was noted that "body handed over to the relative on 22.08.2009 at 10.45 pm" and another noting in the same document noted that "body handed over to the relative on 22.08.2009 at 11.45 pm." The court also found some corrections in the medical records.The court, therefore, held that "these recordings are only manipulations and dubious and cannot be considered as authentic").
  4. It is always safe to keep the patient/attendants in the loop about complications and the measures taken to correct the same. This aspect should also be documented. (In this case the defence of the hospital (OP) was that the patient's mother who was an ex-nurse from the same hospital (OP) had accompanied the patient in the labor room, was constantly kept informed about the progress of labor and the complications when they occurred but the same does not seem to have been documented. The court did not accept this defence).
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Hospitals cannot take shelter behind their arbitrary/unreasonable internal protocols p. 195
Every hospital is free to frame its internal protocols/guidelines, but each of these have to be within the legally accepted medical practice and cannot be arbitrary or unreasonable. An arbitrary or unreasonable protocol/guideline is as good as no protocol/guideline in the eyes of law, and will provide no shelter to the doctor/hospital in cases of negligence or deficiency in service. This case is an excellent illustration of the aforesaid. The hospital (OP) refused to extract the patient's tooth on the ground that the patient did not bring a family member with him as per the notice displayed outside the OPD. The patient thereafter on the same day got his tooth extracted from a private hospital without any family member accompanying him. The court held that this "clearly indicates that the standard protocol concerned does not require the accompaniment of family-member at the time of extraction of tooth." The hospital (OP) was held negligent.
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Failure to communicate about the possibility of recurrence, an instance of negligence p. 197
  1. In surgeries/therapies where recurrence is a possibility, disclose this fact to the patient specifically and advise repeat investigations at appropriate intervals to rule out the same. The aforesaid should also be duly recorded in the prescription/discharge card. (In this case, the allegation was that the surgery performed by the surgeon (OP) was incomplete whereas the defense was that it was recurrence. A properly written discharge summary clearly recording the possibility of recurrence and advise for repeat investigation would have been the best defense).
  2. Every surgery should be preceded by counselling where the patient is informed about the surgery, risks, complications, and side effects, if any. (In this case, one of the allegations was that the patient was not made aware of the fact that varicocele may recur after surgery whereas the defense was that it reoccurs in approximately 60% of the cases. The court observed that before surgery the doctor ought to have informed the patient about the possibility of recurrence of varicocele within a short period of time and "such non-communication about the possibility of recurrence goes against the medical ethics").
  3. Avoid surgeries beyond your area of expertise, and when in doubt, consult doctors of relevant specialities. (In this case, the court drew adverse inference against the doctor (OP) for performing a surgery for excision of varicocele even though he was not a urologist or andrologist).
  4. Details of the surgery should be clearly recorded in the surgery notes. (In this case, the court drew adverse inference against the doctor (OP) who had performed the procedure for excision of varicocele as there was no evidence recording the details of the procedure done).
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Doctor selling a machine to the patient and vouching for its effectiveness which proves wrong later - Misrepresentation, holds court p. 199
Law permits doctors to dispense medicine, medical appliances, and surgical appliances only to their own patients but prohibits them from promoting any drug/appliance. Greater caution is needed when the actual sale of the drug/appliance is done by the doctor to his/her own patients. (In this case, the hospital (OP) advised and sold a "machine" to the patient who had weight and thyroid problems. The patient alleged that she was misled by the representation made by the hospital (OP) "qua the treatment with the use of the said machine" as the machine was ineffective. The hospital (OP) was directed by the court to take back the machine, refund its price, and pay compensation to the patient on account of mental tension, harassment, and litigation expenses. If the hospital (OP) had only advised and not sold the machine to the patient, perhaps the court's view could have been different.)
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Two conflicting orders passed in one complaint by the District Consumer Forum - One signed by the President only, second by the other two members of the Forum p. 200
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