Medical Law Cases - For Doctors: Table of Contents

The medical law reporter for Indian Doctors

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December 2012
Volume 5 | Issue 12 Content is not free, to access this content, you need to either become a subscriber or purchase individual PDF

Page Nos. 171-186

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CASES

	Is it necessary to record the name of the doctor performing simple procedures in the consent form - Unanswered by the court	p. 171
	It is advisable that in case of each and every procedure, even the simplest ones, if written consent is taken, the name of the doctor must be recorded, and in case the doctor performing the procedure has to be changed a fresh consent must be taken, with the name of the new doctor. Whether in smaller procedures, the name of the doctor performing the same ought to be recorded in the consent has not been conclusively answered by the Indian courts. In this case, one of the allegations made was that consent to place a central line was given to one doctor, but the same was performed by another doctor. The defense taken was that for conducting such innocuous procedures only consent needed to be taken and the name of the doctor who would be performing the same was not required to be recorded. Unfortunately, the court has not specifically answered this question even in this case. It is advisable to preserve important non-medical records for a reasonable time, even though it is not a statutory requirement. Keeping purchase bills, warranty/guarantee certificates, and other records of stents, implants, and the like, is rather mandatory. (In this case, the court held PGI (OP) negligent only for failure to keep proper records of the stent and exonerated it from all the other charges of negligence made by the patient). The right to decide the line of treatment vests with the doctor only. Patients/attendants/relatives can give suggestions or make requests, but the final authority ia always with the doctor. (In this case, the court has categorically stated that, "The line of treatment was not required to be decided, as per the wishes of the patient or her attendants"). It is advisable that risky, complicated and difficult procedures are performed by experienced doctors. Important instructions must be given to the patient/attendants/relatives verbally as well as in writing.
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	Maintaining patient confidentiality in the age of media intrusion	p. 174
	The media is very active and intrusive these days. Therefore, maintaining the confidentiality of the patient requires more efforts. (In this case, the patient had alleged that the news that his initial blood report was HIV-positive was leaked to the media due to the mistakes of the doctor [OP]). Maintain confidentiality about patient-related information. In case of sensitive information, like the patient being HIV-positive, greater efforts must be taken to maintain confidentiality. The exception to the aforesaid are: Patient related information can be shared with only those healthcare professionals who are involved with the patient and that too strictly on a need-to-know basis. As far as friends and relatives of the patient are concerned, information must be shared only when non-disclosure of information could pose a threat to them. (In this case, the patient had alleged that the doctor (OP) had informed the patient's wife and his father-in-law that the patient was suffering from HIV; and this had shattered the family life of the patient). Information must be shared with public authorities only if it is infectious. In fact, every doctor/hospital is duty bound to divulge this information. No separate, express, or written consent is required for performing investigations, except those diagnostic tests that require some sort of intervention. In case of any doubt, repeating an investigation is always advisable and if possible, in another laboratory/facility. Courts then draw favorable inference in favor of the doctor/hospital.
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	Advertisement by doctors: Strictly and only under stipulated conditions	p. 176
	A doctor can advertise only under special circumstances that are clearly enumerated in the Code of Ethics and not otherwise. (In this case, the hospital (OP) had taken the defense that the advertisement was issued as the hospital (OP) had acquired some special machines. However, the court after perusing the advertisement found that the advertisement was in fact giving a false impression to the patients that there defective eyesight could be corrected, and hence, held that this was unethical conduct.) When issuing any advertisement great care and caution must be taken to ensure that neither any false impression is created, nor any false assurance given, explicitly or implicitly. (In this case the court observed that the advertisement issued by the ophthalmologist (OP) 'to get rid of spectacles and contact lenses' and 'to see the world at large without spectacles' was misleading "in as much as it gives an impression that any defective vision could be corrected to normal vision"). In case of advertisements issued by doctors/hospitals, consumer courts will not merely stop at holding them guilty and awarding monetary compensation to the aggrieved patient. The courts will even direct the doctor/hospital to withdraw such advertisements immediately, and they can even issue an injunction prohibiting them from issuing such advertisements in future. (In this case, the court directed the hospital (OP) to withdraw the advertisement in electronic or print media immediately; to desist from inserting such an advertisement in future; and to pay a compensation of Rupees one lakh to the patient). Assure care not cure.
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	Obligation to issue discharge card/note/summary in cases of discharge against medical advice	p. 178
	A patient who is discharged against medical advice is also entitled to receive a proper discharge card/note/summary and relevant medical records like investigation reports, and so on. The only precautions that must be taken are that the fact that the patient was discharged against medical advice has to be duly recorded in the discharge card and medical records, the patient's acknowledgment of having received the discharge card must be specifically taken, and this acknowledgment must be properly preserved. Even after a patient loses confidence in a doctor/hospital, the doctor/hospital must thereafter continue managing the patient for a reasonable time, to enable the patient to find another doctor/hospital. Facts like a considerable time gap between discharge from an earlier hospital and admission into your hospital, which may have a bearing on the patient's condition, diagnosis, or treatment must be specifically recorded. (In this case, the hospital (OP) had specifically pointed out two important facts in the court - that the patient had taken considerable time in getting admitted to the hospital (OP) after being discharged from the earlier hospital and that the patient was casual, although she was suffering from diabetes for one-and-a-half years. Unfortunately, none of the two facts stated were recorded in the medical records). Recording the treatment meticulously is as important as giving the same correctly and in time.
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	Illiterate patients: Greater care and caution required in the Indian context	p. 180
	Illiterate patients require greater care and caution. In India, where the majority is still illiterate and from a non-urban background, doctors and hospitals, even the ones in the urban areas, must always keep this aspect in mind. Explaining even the most elementary aspects and that too in the language understood by such patients, rechecking the prescription/discharge card, are a few such steps that must be taken. (In this case, the patient and his family who were admittedly illiterate alleged that at the time of discharge from the hospital (OP2) the discharge slip handed over to the patient was that of another patient, who was suffering from another ailment. It was further stated that the patient had purchased the wrong medicines showing the wrong discharge slip and this ultimately resulted in the patient's death. This allegation was rejected by the court, relying on the bills issued in the patient's name by the chemists. However, such a mistake is quiet possible and can happen with every hospital/doctor and the consequences can be really disastrous). Any deviation from the medical advice by the patient must be clearly recorded.
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	Negligence during surgery/procedure and liability of the principal surgeon/interventionist	p. 182
	In all surgeries/procedures the principal surgeon/interventionist shoulders the greatest liability in case of medical negligence. This case in fact goes to the extent of holding only the principal surgeon/interventionist liable in case of any negligence during surgery. (In this case, the patient had taken out an application in the court to join the other surgeons and doctors who were assisting the gynecologist (OP) during surgery. However, in this judgment, the court has clearly observed that only the gynecologist (OP) was the necessary party before the court and it was not necessary for the other doctors to be present. In effect, the court has observed that if at all there was any negligence, then the gynecologist (OP) alone would be held liable for the same and none else).
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	A needless surgery with patient's consent: Deprecated by the court	p. 183
	Consent is a legal prerequisite for all interventions, but the patient's consent cannot be presumed as permission to act negligently or to perform a procedure/surgery that is otherwise not medically indicated. (In this case, the court held that surgery to increase height of an otherwise healthy patient was not at all required or medically indicated for that patient, and hence, disapproved the orthopedic surgeon (OP) for performing the same. The court did not accept the defense that the patient being an adult had given consent for the said procedure. The court observed that on the contrary the orthopedic surgeon ought to "have professionally advised him (the patient) that surgery which always has inherent risks in such cases is not required").
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	Consequences of failure to provide medical records to the patient	p. 185
	Furnish copies of the medical records to the patient within 72 hours of receiving any such requisition. Failure to do so is per se negligence and the court can direct the hospital/doctor to pay compensation for the same. (In this case, although various allegations were made against the orthopedic surgeon (OP), the court held him negligent only "for refusing to hand over the record" to the patient and for no other wrong. This case is an excellent example of the importance given by courts to medical records and the consequences that follow in case of failure of the doctor/hospital to provide the same to the patients).
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