Medical Law Cases - For Doctors: Table of Contents

The medical law reporter for Indian Doctors

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April 2015
Volume 8 | Issue 4 Content is not free, to access this content, you need to either become a subscriber or purchase individual PDF

Page Nos. 51-68

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CASES

	Patient's oral consent for lumbar puncture in an emergency held valid	p. 51
	The Supreme Court in Samira Kohli's case (2008) had tried to make patient's consent in India easier. The effect of that landmark judgment can be very clearly seen in this case where the court has observed that "absence of written consent was not a very serious deficiency or lapse on the part of OPs" simply because Lumbar Puncture (LP) was performed as an emergency procedure. This should not be taken as binding law. Express written consent is mandatory for all interventions. , , Before performing any procedure, even the routine ones, contemplate whether consent is required. In case of a dilemma, it is always advisable to take consent rather than not taking one. (In this case, the main allegation was that LP was performed without the consent of the patient.) , Ensure that the patient is conscious and oriented before taking consent. (In this case, the patient's husband alleged that the patient was in altered sensorium due to electrolyte imbalance when the army hospital (OP) purportedly took her oral consent, and hence, the consent was not valid.) In case of patients who are incompetent to give consent, proxy consent of the relatives should be taken. (In this case, the patient's husband alleged that LP was performed without patient's consent, and even his consent was not taken even though he was available round the clock in the hospital premises and could have been called over the mobile phone.) Hospitals must be doubly sure that beds/ rooms/ICU/OT are available before advising outstation patients to come for hospitalization. In this case, the patient had called the army hospital (OP) before starting from her hometown and had traveled overnight from Patna to Delhi in a train, but on reaching the army hospital (OP), she was denied admission as there were no beds available. She was then directed to another army hospital. In an appropriate case, this could be construed as deficiency of service. Emergency coupled with good faith and patient's interest are perfectly valid reasons for bypassing procedures, deviating from standard and acceptable practice and even committing mistakes/errors. (In this case, the court took cognizance of the fact that even though written consent was not taken for LP, it was performed as an emergency and done in good faith.) Each and every doctor involved with the patient must duly record his/her suspicions, diagnosis, reasons, comments, and so on in the medical records. Failure to do so could cause both therapeutic and legal problems. (In this case, one of the allegations was that though it was stated in defense that LP was performed as an emergency procedure as three consultants had suspected meningitis, the same was nowhere recorded in the medical records before LP or even during follow-up treatment or review after LP.) Nurses' reports are a part of the patient's medical records and must be written carefully and completely and preserved properly. (In this case, it was very specifically alleged that the army hospital (OP) had not filed the nurses' reports in court with malafide intention to cover up their negligence.) Courts are nowadays increasingly commenting against doctors who are biased in deposing before courts as expert witnesses. The court has very aptly observed in this regard, thus "The expert has a duty to opine only, not to favor or give a biased opinion" and "Ideally, expert witnesses should be unbiased conveyers of information. The pivotal factor in the medical negligence is the integrity of the expert witness testimony. It should be reliable, objective, and accurate and provide a truthful analysis of the standard of care. Regrettably, not all medical experts testify within these boundaries." , All efforts must be made to hospitalize and provide the requisite medical services to a critical patient.
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	Legal consequences of patient's failure to disclose consultations with other doctors	p. 55
	Record specifically whenever a patient consults other doctors/hospitals on his/her own without the advice of the medical team. Courts are drawing adverse inference against such patients. In fact, in this case, the court not only expressed displeasure against the patient for consulting other doctors and not revealing the said fact to the urologist (OP), but also went to the extent of observing that due to the aforesaid, "the patient got confused about his health status." , Resorting to allegations of medical negligence to avoid payment of fees is increasing alarmingly. The courts are also aware of this phenomenon. (In this case, the urologist (OP) had stated in his defense that out of Rs. 14,000, the patient had paid only Rs. 8000, and thereafter was "trying to avoid to pay balance amount on one pretext or the other." The court agreed and observed that "the conduct of patient appears to be malafide one" and that "on one pretext or other, he (patient) was avoiding to pay Rs. 6000/-, the fees due.") , Proper communication is the key to a healthy doctor-patient relationship. In this case, the patient has very specifically alleged two instances of improper communication. In the first instance, when the patient complained about pain after the procedure, the urologist (OP) insulted him and used abusive words and at another instance, the urologist (OP) became furious when the patient went with investigation reports and after consulting other doctors. It is advisable that interventionists and surgeons must have standard consent forms of the common procedures/surgeries performed by them having standard disclosures. (In this case, the urologist (OP) had very clearly enumerated the common risks of lithotripsy in consent and this helped him in the court.) Record specifically if the patient is irregular in taking treatment or coming for follow-ups. (In this case, the court has drawn adverse inference observing that the patient was "regularly irregular in his treatment.")
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	Failure to give complete details of treatment/charges to the patient - Held as negligence	p. 57
	Doctors/hospitals are bound to furnish complete details of treatment given to the patient and complete bifurcation of charges for each type of treatment. Failure to do so is deficiency of service. (In this case, the patient had paid Rs. 24,000 to the physiotherapist (OP), and thereafter repeatedly sought details of the treatment as well as the charges for each type of treatment, but the same was not furnished. The court, therefore, directed the physiotherapist (OP) to refund the fees of Rs. 24,000 and also directed him to pay Rs. 25,000 to the patient).
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	Remaining "idle" after advising investigations for a critical patient - Negligence, per se	p. 58
	The doctor advising investigation is bound to ensure that reports arrive in time and appropriate action is taken based on the reports. In case of critical patients and emergencies, efforts must be made to get reports at the earliest and failure to do so could be construed as negligence. (In this case, the court held the doctors (OPs) negligent for remaining "idle" after advising investigations and not taking "any step to bring the reports as early as possible," especially as the patient was critical. The court has further observed that "simply sending of sample for the pathological test to the pathological unit of another nursing home was not sufficient while the patient was admitted with acute pain in abdomen.") , In case any investigation is advised but not performed, the reasons thereof must be clearly recorded in the patients medical records. (In this case, the resident doctor (OP) had advised X-ray, but the same was neither performed nor any reason for not doing so was recorded in the patient's medical records. The court drew adverse inference for the same.) A doctor coming across a patient who is outside the doctor's competence must say so very clearly and this must also be stated in the medical records. (In this case, it was alleged that the consultant physician (OP) had given opinion that the line of treatment was correct, even though the patient was outside his expertise. The consultant physician (OP) stated in defense that he had come to visit his other patients admitted in that nursing home (OP) and on request made by the patient's attendants, strictly on humanitarian grounds, he saw the patient, consulted the bed head ticket, spoke with the attending doctors, and opined that the line of treatment was correct. The consultant physician (OP) was not held negligent, but such action is risky.) Failure of patients to disclose their medical conditions correctly and completely is a matter of concern and can lead to grave consequences. Taking the patient's history elaborately and in writing, especially while admitting the patient or during the first consultation is advisable. (In this case, the patient was hospitalized at 9 a.m. and the reports arrived at 4:40 p.m. disclosing that the patient had ectopic pregnancy and high blood sugar. Admittedly, no efforts were made to arrive at the diagnosis in the intervening period. The patient expired at 5:30 p.m. The doctors (OPs) tried to defend their inaction by pointing that the patient's attendants knew of both the medical conditions but concealed the same; otherwise, the response would have been different. But this was rejected by the court.) Hospitals and nursing homes must have appropriate protocols in place to ensure that during changes in shifts, every doctor/nurse hands over their charge to his/her reliever properly. Globally, it is one of the potential areas of concern for hospitals and institutions. Bed head ticket must specifically record the name and time whenever a consultant visits/examines a hospitalized patient. Notings made in medical records must always bear the signature of the person doing so, as well as the time when the same was noted. Failure to ask elementary questions while taking history could be construed as negligence. (In this case, one of the allegations was that the resident doctor (OP) did not even take complete menstrual history of the patient who was a female hospitalized with the complaint of severe abdomen pain.)
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	Dealing with consent and confintiality in HIV testing	p. 61
	Disclose patient-related information like diagnosis, investigation reports, treatment plan, and so on, only to the patient and none else. Such information must be kept confidential and disclosed to others including the closest relatives, spouse, children, parents, and so on, only on a specific direction from the patient. Disclosures without patients consent are illegal and amount to deficiency in service. Disclosing sensitive information like HIV-positive status of a patient must be done with utmost caution. In this case, though the patient had not acted upon the false HIV-positive report, the court granted compensation of Rs. 5 lakhs observing that "the society looks at this disease as a 'blot' on the person. It was, therefore, natural for the complainant to go in depression by knowing the result of HIV positive". Obtaining consent of someone other than the patient is a risky affair. It must be done only in cases where the patient is incompetent to give consent and not otherwise. Minor, unconscious, or disoriented patients are the ones who are incompetent to give consent. (In this case, the doctor (OP) had stated in defense that he had performed the HIV test after counseling the patient's wife. The court held that this was not consent as the patient was neither unconscious nor in a position not to give consent). A patient is entitled to get compensation for the actual loss caused to the patient due to the negligent act of the doctor/hospital. In this case, the patient, an advocate, claimed that the disclosure of his HIV-positive status (which later turned out to be incorrect) by the doctor (OP) to relatives and others resulted in his clients taking their cases back from him. The court granted him compensation of Rs. 5 lakhs for this loss and for mental harassment, though no physical harm was caused to the patient due to the incorrect HIV report. , Declare a patient as HIV-positive only after following the proper protocol and confirmation of results. In this case, the court has very specifically referred to WHO guidelines which state that only after three consecutive tests, a person should be declared as HIV-positive, whereas the doctor (OP) had declared the patient HIV-positive after performing one test only. Investigation reports in appropriate cases must specifically record that the results need to be confirmed by other investigations. In case of HIV test done by ELISA method, the patient must be advised to get it confirmed by Western Blot method.
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	Allegations about compelling patients to buy medicines from hospitals on the rise	p. 63
	Doctors/hospitals/nursing homes cannot force a patient to purchase medicines from their in-house pharmacy or a particular shop. The patient has a right to purchase medicine/consumables from a shop of his/her choice, especially if he/she is getting rebate on such purchases. In such cases, specifically record in the medical records that the medicines/consumables were purchased by the patient from a shop of his/her own choice. (In this case, the patient had alleged that the doctor (OP) compelled patients to purchase medicines from his hospital's medical shop and when he refused to do so as he was getting a discount of 20-25% elsewhere, the doctor (OP) refused to examine the patient even after charging the requisite fees). Once having accepted the fees, the doctor/hospital is bound to provide the requisite services to the patient. Failure to do so amounts to unfair trade practice and deficiency in service. (In this case, the patient had paid the OPD fees, but the doctor (OP) failed to examine the patient. On finding that the doctor (OP) had not given treatment even after receipt of consultation fees without any valid ground, the court has very aptly observed, "it is the duty of the doctor to check the patient when the consultation fees was paid and the act of not providing consultation and treatment to the minor child on that day amounted to unfair trade practice and deficiency in service on the part of the OP doctor"). A doctor must be available for consultations at the appointed time and must not keep the patient/attendants/relatives waiting for too long unnecessarily. Failure of patient to follow advice of hospitalization must be specifically recorded.
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	Medical practice not in conformity with medical science - Not negligence, holds National Consumer Commission	p. 65
	Every act of a medical professional must be within the four corners of the "accepted medical practice"/standard practice - generally accepted and practised by peers. The problem arises when the practice is not in conformity with the medical science. A minor deviation in practice from science is generally accommodated by the courts, but gross deviation could be construed as medical negligence. If the prevalent practice is inconsistent with medical science, it is safer to follow medical science, though in this case the court has held otherwise, but following this precedent could be dangerous. (In this case, the doctor (OP) had performed ureteroscopy to remove ureteric stone and had admittedly not done GFR before performing intravenous pyelography (IVP). The Medical Board constituted by the court reported, ".... it is now known that serum creatinine is a poor surrogate mark of renal function. Renal functions are best assessed by GFR. However, the practice of estimating GFR prior to performing IVP is still not the standard practice in India or even internationally." The court, relying on this report, held that the doctor (OP) was not negligent). Any treatment/consultation done by the patient on his own should be specifically recorded in the medical records. (In this case, the court has very specifically expressed its displeasure as the patient had not followed instructions given by doctors and had also taken Ayurvedic medicines). Perform the requisite pre-intervention investigations/diagnostic procedures.
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	Is the insurance company providing indemnity to the doctor also bound to provide lawyers in legal proceedings?	p. 67
	Insurance companies are not bound to appoint advocates to defend doctors/hospitals who are covered by their indemnity policy. Doctors/hospitals have to appoint their own legal team to defend a case of medical negligence. On being intimated by the insured doctor/hospital about a case of medical negligence, the insurance company joins the legal proceedings, has its own team of advocates to defend, and in case the court grants compensation, the insurance company pays the same on behalf of the insured doctor/hospital. (In this case, the doctor who had a "Professional Indemnity Insurance Policy" was under the wrong belief that advocates to defend the doctor would be appointed by the insurance company once he had intimated the insurance company about the consumer case. The doctor, therefore, did neither appoint advocates nor was bothered to attend the case, and ultimately, an ex-parte (one-sided) order was passed holding him negligent). , Read the insurance policy completely and properly, especially the exclusion clauses (what is not included in the policy), and get proper clarifications before purchasing an indemnity policy.
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