Medical Law Cases - For Doctors: Table of Contents

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Surgeons also have the duty, albeit a weak one, to judge whether the patient has been properly anesthetized and proper analgesia has been achieved before opening the patient. The primary responsibility of course is of the anesthetist. The courts observations in this regard are very apt-"It is pertinent to note that the role of an anaesthetist is important in OT. He is responsible for maintenance of record pertaining to pre-anaesthetic check-up (PAC), the pre-medication and the dose of anaesthesia as well as management of any allergic reaction. The surgeon asks the anaesthetist, whether, the patient is ready for surgery and only after obtaining instruction/consent from the anaesthetist, that the surgeon proceeds to operate. However, we feel, even though primarily its job of the anaesthetist, but the surgeon also cannot escape from his responsibility of judging, whether, proper anaesthetisation and proper analgesia have been achieved, before giving incision on the patient's body."
Appropriate protocols must invariably and religiously be followed irrespective of whether it is a major or minor surgery. Mishaps often happen during minor interventions due to the indifference and lack of attention that creeps in. In this case, pre-surgery checkup and pre-anesthetic checkup were not done, and the anesthetist (OP) arrived only 5 minutes before the surgery. The patient suffered vasovagal shock. The court, while holding both the surgeon and the anesthetist (OPs) negligent, observed that they did not follow the standard of practice as they "considered it as a minor operation."
Failure to document during a medical mishap is a common mistake that often proves costly in legal proceedings. Complete the medical records once the emergency is over. In this case, the surgery started at 12:05 pm; the patient suffered cardiac arrest on the operation table and died at 3:30 pm. The court specifically took notice of the fact that there was no documentation of the patient's condition after 12.45 pm upto 3.30 pm.
Pre-anesthesia checkup must be done at least a day before the surgery, although the normal practice in India is to examine the patient on the operation table. (In this case, the court found that after the anesthetist (OP) reached the hospital "within five minutes the operation was started."The court specifically observed that there was "no record available to indicate the anesthetist's examination of the patient prior to that date also").
Anesthetists must document in detail the pre-anesthesia check-up. (In this case, one of the reasons for holding the anesthetist (OP) negligent was his failure to document findings of the pre-anesthesia examination. The court observed that "documentation of such examination findings ... helps assessing the clinical status of the patient and direct the line of treatment in emergency").
In planned interventions, both the anesthetist and the surgeon must perform detail medical checkup and pre-anesthesia examination. (In this case, both the surgeon and the anesthetist (OPs) were held negligent for failure to perform detail medical checkup and pre-anesthesia examination).
Before opening the patient, both the surgeon and the anesthetist must check the patient and discuss relevant issues. (In this case, one of the allegations was that "there was no prior discussion between anesthetist (OP) and the surgeon (OP) about premedication or any precautions").
Duly record the weight of the patient who has to undergo surgery. (In this case, admittedly the weight of the patient was not recorded. The court, therefore, expressed doubt whether 100 mg dose of the anesthetic drug was an adequate dose for the patient).
Take consent only of the patient if the patient is adult, conscious, and oriented. (In this case, one of the allegations was that there was no informed consent of the patient because consent was signed by the patient's sister).
Failure to provide medical records to the patient and that too within the stipulated period invariably gives rise to suspicion in the mind of the court, and the patient also alleges that the records have been tampered. (In this case, one of the allegations was that the medical records were not provided on time, and therefore there were "chances of tampering of records." The medical experts and the court also took cognizance of this fact).
Avoid inconsistencies in the medical record.

1. When a patient is under the concurrent treatment of two or more doctors/specialities: a. Greater coordination is required among the doctors managing the patient. b. The patient must be clearly informed that the patient is being managed by a particular doctor for a particular ailment/condition and by the other doctor/s for other ailments/conditions,and that both the doctors are managing the patient independent of each other and the patient has to follow the advice/instructions of both the doctors. c. It is advisable that the prescription and other medical records given to the patient must clearly direct the patient to continue/follow the advice of the other doctor/speciality also. (In this case, the patient had alleged that medicines for systemic lupus erythematosus (SLE) were stopped once the patient was referred by the medicine department to the Obstetrics and Genecology (OG) department of the hospital (OP) and this amounted to "abandonment." Perhaps the patient was under an impression that once she was referred to the OG department, the medicines for SLE prescribed by the medicine department should be stopped. The hospital (OP) pointed in defense that the doctors of the medicine department had "advised maintenance treatment for SLE and vasculitis with low dose steroids and the rest as advised by OG."The medical expert also commented on this aspect stating that "The rheumatologist is only responsible for the medicines that he/she prescribes and when a repeat medication is advised it means the medicines prescribed for SLE and would not include HRT in this circumstance"). 2. Due contemplation is required in advising the patient to stop a particular drug/therapy or to stop coming for follow-up. In case the patient does so on his/her own accord, this fact must be duly recorded in the medical records once it comes to the notice of the treating doctors. (In this case, the patient alleged abandonment of treatment at the hospital (OP), and it was specifically pointed out in defense in the court that no such directions were given, either verbally or in writing, and that the patient had abandoned follow-up on her own accord). 3. Drugs/treatments that are considered high-risk must be started after properly explaining and counselling the patient about all the aspects, especially side-effects, and in appropriate cases a written consent should also be taken. (In this case, one of the allegations was that steroids for managing SLE and hormone replacement therapy (HRT) both were started without counselling or taking written consent from the patient). 4. Periodical evaluation of the patient by physical examination, advising investigations, etc. must be performed at the indicated interval. (In this case, the patient had alleged that the hospital (OP) was negligent for failure to "evaluate her periodically" after starting HRT by advising mammogram and pap smear which resulted in cancer. This allegation was rejected as the patient did not go for follow-up for 4 years). 5. Risk-benefit ratio is one factor that must always be taken into account in deciding the course of treatment. 6. Doctors treating a patient must be doubly sure about their qualifications and expertise before accepting a patient. 7. Delay of the patient to come for follow-up or to perform investigations must be duly recorded. (In this case, the patient came for follow-up after 4 years and took 7 months to perform mammography after it was advised. The medical expert has very aptly commented on this aspect thus: "To minimize the risk of adverse events, it is the joint responsibility of the doctors and patients. It is as much of patient's responsibility to come for regular follow-up and abide by the physicians advice. Clearly, the patient defaulted on her regular follow-up with the gynecologists and reported for mammography 7 month after it was advised"). 8. Patients have a legal right to get copies of medical records within 72 hours of making such a request. Not providing medical records is always viewed adversely by the court and the patient can always get it by approaching the courts.(In this case, the patient filed a Writ Petition before the High Court, a constitutional court,and got copies of the medical records).

Some patient's, especially women, at times refuse to undergo internal examinations or are averse to doctors physically touching them. In all such cases, the said fact must be specifically recorded in the medical records of the patient. In case of a woman patient, the option of getting the patient examined by another woman doctor should also be explored. (In this case, the defense of the sonologist (OP) was that, even though the referral letter clearly advised transvaginal sonography (TVS), he did not perform the same as the patient did not allow TVS or vaginal checkup from male experts. The court rejected this contention observing that "In the modern day medical practices, examination of a women patient by male doctors is well accepted practice without any inhibition. Moreover, it is highly improbable that a lady, who had suffered ectopic pregnancy a couple of years back and had undergone surgery due to complication of Ectopic pregnancy, would refuse to undergo such a test for personal reasons").
The doctor advising investigations must also ensure that the patient performs the correct investigation and shows the report to the doctor. In case the investigation advised was not performed correctly or at all, the said fact and the reason/s thereof must be duly recorded. In appropriate cases, if the wrong investigation was performed or there was any other shortcoming, the referring doctor must also coordinate with the laboratory/centre and seek appropriate clarifications. (In this case, the doctor (OP) at the Civil Hospital had advised TVS but the sonologist (OP) performed abdominal sonography. The court held only the sonologist (OP) negligent, however, there are reported cases where even the doctor advising investigation has been held negligent).
The indicated investigations can be avoided for reasons such as nonavailability, time consuming, or affordability. However, in all such cases the reason/s for not advising the indicated investigation must be duly recorded. (In this case, one of the allegations was that the doctor (OP) at the Civil Hospital did not advice beta human chorionic gonadotropin (HCG) test. The court agreed with the defense that the said test was not advised as it was not available locally, was very costly, and was time consuming withapproximately1week to get the report.
Attempts must always be made to save the life/limb/organ of the patient. In this case, the gynecologist (OP) had removed the patient's only fallopian tube by laparoscopy which was challenged by the patient in the court. The court accepted the defense that "the choice was to save the life of the patient rather than to maintain her fertility."The court observed that "saving the life of the patient was of paramount importance."
Scanning centres and pathology laboratories are bound to follow the instructions of the referring doctor. Failure to do so is negligence. (In this case, the doctor (OP) at the Civil Hospital had prescribed TVS but the sonologist (OP) performed abdominal ultrasound. The court held only the sonologist (OP) negligent).
Doctor must always examine, investigate, diagnose, medicate, and treat a patient in away that another reasonable doctor would do in a similar situation. This is Bolam's law and is applicable in cases of medical malpractice all over the world. (In this case, the patient had specifically alleged that the doctor (OP) at the civil hospital had "failed to examine, investigate, diagnose, medicate and treat the ectopic pregnancy, which a reasonable doctor would have diagnosed").
Miscommunication often results in consequences which are avoidable. In this case, the gynecologist very specifically stated in the court that "laparoscopy is not a shortcut to open abdomen surgery, but is a standard, more advanced, and precise surgical technique for treatment of ectopic pregnancies."Explaining the patient the aforesaid in nonmedical terms could have perhaps stopped the patient from going to the court, at least against the gynecologist (OP).
Do not tamper with medical records. (In this case, the court held that the sonologist (OP1) had tampered with his first sonography report only to cover his act of negligence by making addition in his own hand when the patient had come to perform the second sonography at his centre).
A doctor preferring one particular method over another when more than one option is available is not negligent.
A proper written consent is the greatest defence for a doctor/hospital.
Medical decisions must be taken after taking into account all the relevant factors justified in medical science. (In this case, the court agreed with the defense that as the size of the patient's pregnancy was 10 cm, was disturbed, and the patient was hemodynamically unstable; hence, the gynecologists (OP) decision to remove thefallopian tube was correct).

A doctor needs to use his/her sixth sense in some cases, especially when there is a probability of something sensitive, criminal, or medicolegal. Trusting a patient completely could be dangerous in such cases. (In this case, the patient was critical when brought to the hospital (OP) with complaints of pain in the heart and abdomen. The patient's father concealed that the patient was pregnant, and went to the extent of informing the doctors that the patient was having regular menstruation cycles and was menstruating at the time of her admission. The truth was discovered approximately 12 hours later but by then it was too late and the patient was lost. One of the defenses of the hospital (OP) was that, since the patient was an unmarried girl, there was no reason to suspect that she was pregnant. On the contrary, the fact that the patient was unmarried, was accompanied by her father, and was critical should have alerted the treating doctors not to completely trust the patient's father and make efforts to find out the truth earlier).
It is advisable to ask the patient/attendants to give history in writing, especially while hospitalizing the patient or during the first consultation. (In this case, the court agreed with the defense that the patient's father had not informed the hospital (OP), but concealed the patient's pregnancy at the time of admission).
Consent needs to be taken after proper explanation and counselling.
Patients/attendants must be given medical records within 72 hours of the receipt of any such requisition.

Follow-up treatment is as important as the main treatment/intervention and any lethargy or indifferent attitude of the doctor/hospital will be construed as negligence. (In this case, the court observed that the eye surgeon's (OP) "follow up treatment was just in a casual manner" and that this "amounts to negligence, inaction and passivity").
Duly record the condition of the patient and the treatment given during follow-up. (In this case, the court held the eye surgeon (OP) negligent for failing to record the condition of the patient's eye during the post-cataract surgery follow-up for approximately one and a half months).
Law is still not very clear in India on the apportionment of legal liabilitiesin case a facility/hospital is merely rented out to a doctor for a specific purpose. The question that remains unanswered is whether such a facility/hospital will also be liable for the negligent conduct of the doctor even though there may be no administrative lapses. Or will there be any exceptions to the aforesaid? (In this case, the hospital (OP) had taken a very specific defense that it was providing only infrastructure for running OPD and other services as required by the doctors but this was not at all considered by the court).
Duly record if the patient does not report for follow-up or refuses to follow the medical advice. (In this case, the eye surgeon (OP) had stated in defense that, after noting dislocation of the lens, he had advised the patient another surgery but the patient never turned-up).
Discharge summary must record the clinical condition of the patient at discharge as well as the treatment given during hospitalization.
Manipulation or fabrication of medical records hardly helps in court. And once the aforesaid is discovered, the doctor/hospital looses all the sympathies of the court. (In this case, the court expressed surprise over an entry in the discharge card that was not present in the discharge summary presented earlier. The court held that "it was a deliberate attempt of insertion" by the eye surgeon (OP) and held him negligent).

Failure or delay in attending a critical patient or a patient who requires emergency care is abandonment and negligence. (In this case, the doctor (OP) who was the principal consultant did not attend the patient, however, other doctors of the hospital (OP) were attending the patient properly. The court held that this "to some extent amounts to careless attitude or abandonment. It reveals wee bit negligence on the part of the doctor (OP2) for which he must be burdened with some compensation").
Joint care or group practice is still a new concept in our country and needs to be practised carefully. (In this case, the defense of the doctor (OP) who was accused of not attending a critical patient was that the patient was under his care jointlywith that of another doctor and this other doctor was attending the patient regularly. The court rejected this defense).
When a patient who is responding to treatment is discharged against medical advice (DAMA), the fact that the patient was responding must be specificallly recorded in the discharge card. (In this case, one of the defenses was that when the patient who was brought in a critical stage was "in a comparatively stable condition" his relatives took him to another hospital under DAMA).

Medical records are the doctor's best friend and the worst enemy, and hence must be written and preserved carefully. In this case, the court accepted the defense that the patient never delivered in the nursing home (OP); instead she delivered while she was on the way to the nursing home (OP) relying "only" on the prescription wherein it has been specifically mentioned that "an unborn child has been delivered on the way" and was thereafter brought to the nursing home (OP).