Medical Law Cases - For Doctors: Table of Contents

The medical law reporter for Indian Doctors

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February 2014
Volume 7 | Issue 2 Content is not free, to access this content, you need to either become a subscriber or purchase individual PDF

Page Nos. 17-32

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CASES

	Is it necessary to take the consent of attendants / relatives to put the patient on a ventilator?	p. 17
	No consent is required to put a patient on a ventilator. This decision is completely at the discretion of the medical team. (In this case, the hospital (OP) had stated in defense that there was a delay in putting the patient on the ventilator, as the patient's husband had delayed giving his consent. The court rejected this defense outright, observing that the "paramount question at the time was the life of the patient"). No separate or specific consent is required from the patient/attendants for agreeing to pay a particular charge/fee. Once the patient has submitted himself/herself to the doctor/hospital there is a deemed consent that the patient agrees to pay the bills/fees raised for the same. (In this case, the hospital (OP) had taken consent from the patient's husband, agreeing to pay the ventilator charges. The court observed that this was unnecessary). In the absence of proper analysis and assessment of the risks vis-a-vis the benefits in a treatment/surgery/procedure duly recorded in the medical records, courts could construe the said treatment/surgery/procedure as unnecessary and negligence. In case the patient is high-risk or the surgery/procedure is a high-risk one, the patient/attendants must be specifically informed about the same and high-risk consent must be taken. This fact must also be recorded in the medical records of the patient. In case the patient is suffering from any comorbidities like blood pressure (BP) or diabetes, or even otherwise, if the fitness of the patient is in question, the surgeon must refuse or postpone the surgery rather than proceeding with one. The history of the patient must be duly recorded in the medical records and must always be taken into account while treating/managing the patient. Failure to provide appropriate post surgery care to the patient is negligence. , In case the operating surgeon does not provide post surgery care, it is mandatory to record the name of the doctor/s providing the same in the patient's medical records. Perform appropriate pre-surgery/procedure investigations.
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	Requisition slip filled by the doctor for procuring blood for an emergency patient - Misused to prove that the doctor had performed surgery	p. 19
	Documenting or writing anything related to medicine or medical practice must be done cautiously by each and every doctor. (In this case, the gynecologist (OP) had denied that he had performed delivery, but accepted that when the patient was brought to him in a critical condition he immediately referred the patient to another hospital and also filled the requisition form for procuring blood as the patient was critical. The patient on the other hand unsuccessfully tried to portray this requisition form in the court as evidence of the gynecologist (OP) having performed the surgery). Blank certificates like birth certificates or death certificates and stationery must be kept securely and under the charge of responsible persons. It may be misused and may land the doctor/hospital in trouble. (In this case the hospital (OP) had stated in defense that the purported birth certificate produced by the patient in the court was fabricated as it did not bear any signature. This defence of the hospital (OP) was accepted by the court.)
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	First aid and regular treatment - Difference and legal relevance	p. 21
	Law considers first aid on a different footing as compared to regular treatment and the standard of care expected in giving first aid is far lower than that expected in regular treatment. However, there is a marked difference between first aid and regular treatment. (In this case, the ENT surgeon (OP) was consulted at least thrice by the patient, was advised an x-ray, and ultimately referred to a hospital by the ENT surgeon (OP), and yet this was sought to be passed off as 'first aid' in the court. The court obviously rejected this defense). Giving first aid when the patient requires regular treatment or hospitalization is negligence per se. Police must be informed in writing about all cases of accident, attempted suicide, unexplained injuries, and so on (commonly known as medicolegal cases). However, not informing the police about a medicolegal case is not medical negligence, although there are other legal consequences that may follow for failure to inform the police of such cases. (In this case, the patient had made a very specific allegation in the consumer court that the doctor (OP) was negligent, as he had not informed the patient's case to the police, but the court rejected the same by stating that the consumer courts take note of medical negligence only.) Every doctor must accept and treat patients keeping in mind his/her qualifications, skills, and expertise. (In this case, the ENT Surgeon (OP) had tried to treat a burn injury and the court held him negligent for the same). , A patient may approach different courts seeking the same or different reliefs arising from a single wrong. (In this case, the patient had filed a case against the ENT surgeon (OP) in the consumer court and also against his employers in the Labor Court).
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	Refusing to admit an emergency patient in the absence of proper consultants	p. 23
	Law mandates that every hospital/doctor must treat a patient who is in an emergency. However, there will always be instances when either the ailment or complaint of the patient, who is in need of emergency care, is outside the scope of services provided by that particular hospital/doctor, or the relevant consultants are simply not available at that point in time. In all such cases, rather than wasting time, the patient must be immediately referred to another appropriate hospital. However, this exercise must be done solely in the patient's interest and not as an atttempt to bypass the legal duty of providing care to emergency patients. (In this case, the patient who was in labor was denied admission in the Cantonment Hospital (OP) simply because both the gynecologist (OP) and the general surgeon were unavailable at that point in time. The patient was advised to be taken to the Government Hospital which was hardly 1 km. away from the Cantonment Hospital (OP2). The court refused to hold the Cantonment Hospital (OP2) negligent).
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	Taking and preserving the contact coordinates of staff - Imperative in today's charged medicolegal atmosphere	p. 24
	With the number of cases against doctors and hospitals increasing exponentially, one has to remain prepared for any eventuality and it includes the possibility of facing legal proceedings. One simple precaution that every hospital and nursing home must follow is to take and preserve the contact coordinates, including permanent address, mobile number, references, and so on, of each and every employee, as they may be needed in future as witnesses in the court. (In this case, the court drew adverse inference against the hospital (OP) for not producing the nurse who had given enema to the patient allegedly causing a rectovaginal fistula). Hospitals and nursing homes must develop appropriate protocols to ensure that complicated or sensitive procedures are always performed by more experienced nurses and staff. (In this case, it was alleged that the nurse at the hospital had caused injury while giving enema and the hospital (OP) in its defense had very specifically stated that, "only experienced and trained nurses administered enema". Experience does count in a court of law). Discharging a patient without arriving at a diagnosis or at least making attempts to arrive at a diagnosis, especially for complications caused during the course of hospitalization is negligence per se. (In this case, the patient who had undergone a surgery for hernia, suffered from rectovaginal fistula and had even complained about the same to the doctors. The court drew adverse inference against the hospital (OP) for discharging the patient "without conclusive diagnosis for the complication of discharge of fecal matter with urine per vagina"). Due care and caution is needed in performing each and every medical act. (In this case, the patient had suffered rectovaginal fistula allegedly due to failure of the nurse to observe precaution while administering an enema, that is, either undue force was used or the tip of the nozzle was not properly broken with the result that the sharp edge had caused damage to the rectal mucosa). Failure to record an important event could prove costly in the court. (In this case, the hospital (OP) had stated in defense that before and after surgery proctoscopy was done, but it did not reveal any injury to the rectum as alleged by the patient. The court rejected this defense after perusing the case sheets observing that it did "not contain any reference to the fact that any proctoscopy was conducted nor it contain any notes to show that the doctor examined the rectum either at the time of operation or before commencing surgery or immediately thereafter"). Overwriting and erasures in medical records must be done cautiously as it persuades the court to draw adverse inference against the doctor/hospital. Encircling the wrong portion and writing the correct entry besides it is the best option.
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	Consequences of patient / attendants failure to bring medical records / investigation reports with an emergency patient	p. 26
	In case of emergency patients brought to the hospital, expecting the family/attendants to carry the earlier medical records/investigation reports is expecting too much. This fact must be specifically noted in the medical records, but rather than waiting for the same, appropriate action must be taken. Speaking on the phone with doctor/s who the patient was consulting, especially the ones whom the patient may have consulted in the immediate past, is one such basic protocol that must be followed and also recorded in the patient's medical records. (In this case, one defense taken by the hospital (OP) was that the patient's attendants had not brought her medical records and this proved to be a handicap in managing the patient, who was in an emergency. The court did not accept this defense). The legal responsibility of every doctor vis-a-vis a patient is independent and complete. A doctor cannot shield any wrong under the pretext that he/she had acted in a way the other doctor had acted or that he/she had failed to act in a way the other doctor had also failed to act. (In this case, the hospital (OP) had tried to justify its duty doctor's inability to diagnose pneumonia for about five hours after admission on the ground that even the family physician whom the patient had been consulting for the last two days was unable to do so. The court very specifically observed that this was not relevant). Whenever a critical or a patient in need of emergency care is admitted, each and every aspect of management and treatment must be done with utmost urgency. (In this case, it was alleged that although the patient was admitted in the dead of the night, at 3:30 a.m., she was not examined by any doctor till 6:30 a.m. The court also found that there was a considerable delay even in sending the samples for investigations). , Hospitals and nursing homes must ensure that once the sample is taken it must reach the laboratory at the earliest, more than ever in the case of an emergency or of critical patients. (In this case, the court drew adverse inference from the fact that the blood and urine samples taken from the patient, who was critical, at 5 a.m., reached the laboratory of the hospital at 6:43 am, almost after one hour and 43 minutes). Inconsistency between various medical records of the patient may lead the court to draw adverse inference against the hospital/doctor. Law expects higher standard of care from bigger hospitals/facilities as compared to the smaller ones.
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	Patient's husband delays in starting treatment - Court suspects intention to get rid of wife	p. 28
	In case the relatives or attendants of a patient are acting strangely, the doctor/hospital must become cautious and alert. Recording this behavior in the medical records specifically, is one such basic precaution that must be taken. In this case, the State Consumer Commission, while recording the negligence of the patient's husband went to the extent of recording that, "One may, on the basis of negligence and carelessness on the part of the complainant (patient's husband) suspect intention of the complainant (patient's husband) of getting rid of his wife (patient)". Self-medicating patients are a cause of concern for every hospital/doctor. In all such cases, specifically record this fact in the patient's medical records. (In this case, the court has specifically taken note of the fact that the patient had indulged in self-medication and had delayed coming to the hospital for four to five days). , Delay on the part of the patient to start treatment or get hospitalized must be specifically recorded in the prescription/admission form during the first consultation/admission. (In this case, the court drew adverse inference against the patient as she had delayed starting the treatment by seven to eight days). Revise diagnosis and act accordingly when the symptoms, clinical condition of the patient or the investigation reports point out in that direction. Failure or even the slightest delay in doing so could at times be construed as negligence. Every case of delayed diagnosis is not negligence, especially delay in zeroing in on the diagnosis during the initial consultations. (In this case, although initially the doctor (OP) had ruled out jaundice, immediately on receiving the investigation reports, he revised the diagnosis and changed the medicines. The court held that this was not negligence). Care and caution is required when putting a patient on a ventilator. Not putting a patient on a ventilator when indicated or putting him/her on a ventilator when not indicated are both viewed unfavorably by the court. Expert witnesses in the court, in cases of medical negligence, will always be another doctor of the same speciality. (In this case, the patient who died due to jaundice, produced the opinion of an MD (Pediatrics), but the same was rejected by the court, which stated that, "he could not be considered as an expert since he had an MD degree in Pediatrics and not in General or Internal Medicine").
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	'Incomplete' diagnosis is negligence	p. 30
	Incomplete diagnosis is negligence and is equivalent to misdiagnosis or missed diagnosis. Claiming in a court that at least a part of the diagnosis was correct will not purge the wrong. (In this case, the patient had suffered a 'Monteggia fracture' (fractured ulna, and dislocation and fracture of the radial head), but the orthopedic surgeon (OP) had diagnosed it as a comminuted fracture of the ulna. In the court, this misdiagnosis was sought be justified pointing out that a Monteggia fracture variant also includes comminuted fracture of the ulna. The court rejected this defense as an illogical claim, wondering how even with an incomplete diagnosis, the treatment given to the patient was complete. The court also observed that there was no explanation for how dislocation of the elbow could have been treated if it was not even diagnosed).
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	Compensation reduced due to negligence of doctors consulted by the patient earlier	p. 31
	Other doctors/hospitals consulted by the patient earlier as well as the treatment given by them must be briefly recorded in the history. However, if it appears that the patient had consulted some unqualified doctor, this fact must be very specificallly recorded. The court views treatment given by unqualified doctors seriously. On one hand an unqualified doctor is per se held negligent and on the other hand the patient also loses the sympathy of the court. In this case, the patient, before consulting the gynecologist (OP), had admittedly consulted unqualified doctors and a midwife. Although the court held the gynecologist (OP) negligent, it reduced the compensation from Rs. 150,000/- granted by the lower court to Rs. 60,000/-, holding that even the other unqualified doctors had contributed toward making the patient's condition worse.
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