Medical Law Cases - For Doctors: Table of Contents

The medical law reporter for Indian Doctors

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September 2015
Volume 8 | Issue 9 Content is not free, to access this content, you need to either become a subscriber or purchase individual PDF

Page Nos. 139-156

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CASES

	Patient's husband posing as doctor directs nurse to administer an injection causing wife's death - A Bollywood plot scripted by the hospital in defense fails to impress the court	p. 139
	Nurses must administer injections and give drugs only on written orders from the doctors and not otherwise. Emergencies of course would be an exception, but even then once the emergency is over the aforesaid protocol must be completed. Taking instructions orally or from unauthorized persons (even a doctor) could have disastrous consequences. (In this case, the defense was that the nurse in the postoperative ward had administered Inj. Tracurium, which caused the patients death on the insistence of the patient's husband who introduced himself as a doctor from NIMHANS and requested her to administer the same for the patient's pain relief. Though this defense was rejected by the court, the aforesaid remains a definite probability and proper precautions must be taken on this count). Contemplation is required about the settings and the expertise of the person administering potentially hazardous or scheduled drugs. (In this case, the medical experts stated in court that Inj. Tracurium "should be administered by an anesthetist and other clinicians who have had extensive training in their use; and in a setting where facilities for respiratory and cardiovascular resuscitation are immediately at hand." The said injection was administered by a staff nurse in the postoperative ward and this was held as negligence). Drugs must be stored appropriately. Hazardous drugs need to be stored in a particular manner prescribed by the authorities. (In this case, the medical experts stated in court that Inj. Tracurium "is a drug which should be stored and used in the operation theatre only. It should not be available anywhere in the hospital other than the operation theatre. In case of emergency, anesthetists can prescribe inj. Tracurium and obtain from a responsible person to be used in the operation theatre only." As this was not followed, the hospital (OP) was held negligent). Any incident that could be a criminal offence must be reported to the police immediately, in writing. Take acknowledgment of receipt on a copy thereof. Failure or delay in doing so could result in adverse consequences. (In this case, the hospital had stated in defense that the patient's husband had persuaded the staff nurse to give Inj. Tracurium posing as a doctor and this injection caused patients death. The hospital (OP) did not file any FIR against the patient's husband immediately purportedly "because it may have the effect of tarnishing image of the hospital." The court rejected this allegation observing that there was no explanation why the hospital (OP) filed the FIR "after a long delay of over five months"). Police has the authority to seize medical records, especially when a complaint of medical negligence is made. In all such cases, first a request must be made to the police to handover a photocopy of the medical records seized. In case they refuse to give copies, the courts should be approached or at least a written request must be made to the police station, and the acknowledgment of receipt must be taken on a copy thereof. (In this case, the hospital (OP) could not produce medical records in the consumer court. The court did not accept the hospital's (OP) contention that the medical records had been seized by the police, observing that the hospital (OP) should have secured the copies of the entire medical records from the police).
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	Legal consequences of failure to record financial constraints of the patient in medical records/prescription/discharge card	p. 142
	Patients refusing to undergo treatment or perform expensive investigations due to financial constraints are fairly common. The aforesaid fact must be specifically noted in the medical records.Furthermore, if the consequences could be serious, it is advisable to take a written endorsement/letter from the patient in this regard. Failure to do so leaves the doctor/hospital vulnerable in legal proceedings. (In this case, the orthopedic surgeon (OP) had stated in defense that the patient did not follow two important instructions due to financial constraints-advice to undergo surgery and advice to perform X-ray after removing the plaster. The court refused to believe this defense simply because the aforesaid was not recorded in the prescription). Prescription must have the requisite information relating to the patient and advice given by the doctor. Prescription is the first line of defence for every doctor in legal proceedings and must be written carefully but unfortunately it is one document that is written with utmost carelessness in our country. (In this case, the court drew adverse inference against the orthopedic surgeon (OP) for failing to record in the prescription the patients parameters and condition, advice for surgery, and patient's refusal to do so, fracture of navicular bone and its gap, advice/instructions to the patient especially about bed rest, and advice to perform X-ray after removal of the plaster). Monitoring the patient is important both during and after the treatment. (In this case, the court held the orthopedic surgeon (OP) negligent as he "never made any attempt to satisfy himself after removing the plaster of paris cast whether the bones are joined or not"). Failure of the patient to follow advice/instructions must be specifically recorded. (In this case, one of the defense of the orthopedic surgeon (OP) was that,contrary to medical advice, the patient did not take rest, was putting load on the fractured foot, was riding on motorcycle, and therefore his sufferings were on account of his own negligence). Advise appropriate investigations when indicated especially when the same is required to arrive at a diagnosis or before starting treatment. (In this case, the court held the orthopedic surgeon (OP) negligent for giving further treatment to the patient without advising X-ray after removal of plaster).
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	Medical Practice and "Law of Averages"-Failure to exercise "average expertise in an average treatment/procedure by a doctor of average ability"is negligence	p. 144
	Law does not expect any extraordinary efforts or actions from a doctor. The newly delivered infant in this case was treated for fever by the gynecologist (OP), but she missed to evaluate the baby for neonatal jaundice. The court while holding that this was negligence observed that the gynecologist (OP) "should have certainly been alerted and should have been careful in further examination. It was simply expected from a doctor of average ability with average expertise and in average treatment procedure." Record the correct condition of the patient at discharge in the discharge certificate/summary. (In this case, the gynecologist (OP) was held negligent for recording in the discharge card that the newly born baby was normal at discharge whereas the baby had fever and on the same day was diagnosed with hyperbilirubinemia by another doctor). Failure to take into account the relevant factors in treating/diagnosing the patient is negligence and deficiency in service. (In this case, the gynecologist (OP) discharged a 5-day old infant who was running a fever. The court has very aptly observed that "This points to a positive indication of negligent attitude leading to deficiency in service"). Some patients are anxiety prone and may ask too many questions, at times irrelevant and irritating. But this should not come in the way of doctor's attention to the complaints made or symptoms pointed by the patient/attendants. This happens to be one of the major reasons of medical mishaps. (In this case, the gynecologist (OP) failed to take into account that the infant was suffering from fever and missed the diagnosis of hyperbilirubinemia. The patient's mother alleged that she had specifically pointed the symptoms to the gynecologist (OP), but she asked her not to disturb her on such trifle matter. The court has very aptly observed that "Even considering the eagerness of a newly delivered mother about her child, an experienced doctor like the appellant(gynecologist-OP) should have paid more attention which would have prevented the further course of admission and treatment of the child").
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	Delay in providing/producing medical records "has created lot of suspicion in our mind" observes National Consumer Commission - Hospital directed to pay 10 lakhs as "punitive costs"	p. 146
	Failure to give medical records to the patient or to produce the same in legal proceedings and that too on time is always viewed adversely by the courts. In this case, the hospital (OP) produced medical records in the court after a gap of 4 years. The court imposed a "punitive cost" of Rs. 10 lakh observing that the delay had "created lot of suspicion in our mind. It was an unethical act and a professional misconduct." Interestingly, all other allegations of negligence made by the patient were rejected by the court. Every hospitalized patient who is discharged or transferred to another hospital must be given a discharge summary/note. In case a patient is transferred in a grave emergency, discharge summary/note can be prepared later and the relevant medical records can be sent with the patient. However, thereafter, the discharge summary/note must be prepared and handed over to the patient/attendants at the earliest. (In this case, the justification of the hospital (OP) for not providing a discharge slip was that "since the patient was not discharged, but rather was only referred to Tongia Hospital, therefore, only referring note was given." This is clearly not permissible in law). Anesthetists must personally check and ensure whether the requisite pre-anesthesia protocols and precautions have been followed or not before administering anesthesia. (In this case, one of the allegations was that "prior to anesthesia, the patient was given a glass of water to swallow"). Care and contemplation is required in preferring one mode of anesthesia over the other. The reason/s for this preference must clearly reflect in the medical records. (In this case, it was stated in defense that "The patient was operated under spinal anesthesia because the patient was not fasting and had taken a glass of water also"). During pre-anesthetic checkup, take complete history of the patient and duly record the same. (In this case, the patent went in coma due to an anaphylactic reaction on being administered a drug. One of the defenses taken was that "during pre-anesthetic checkup, the patient herself gave the history of being nonallergic to any drug." The court did not find any negligence). Delay in performing life-saving procedures such as intubation and resuscitation could be construed as negligence. Even during emergencies, the accepted medical practice must be followed. Referring/transferring the patient time to another hospital/doctor is always viewed favorably by courts. Perform sensitivity tests before administering drugs, if indicated. Accepting the truth in the court is always helpful. (In this case, the anesthetist (OP) admitted in the court that there was anaphylactic reaction leading to cardiac arrest. The court did not hold him negligent for the same).
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	Failure to record/provide CD of angioplasty when the "wire did not cross the legion" is not deficiency of service	p. 149
	Patients have a right to get investigation reports, X-ray/scan plates, blocks/slides of HPE samples, CD of angiography/angioplasty, and so on. Failure to provide the same is a deficiency in service. (In this case, one of the allegations was that the hospital (OP) had provided CD of angiography but did not provide CD of angioplasty to the patient). Failure to communicate at times gives rise to suspicion and results in medicolegal trouble. Proper communication is the key to good doctor-patient relationship. (In this case, the patient alleged that although the hospital (OP) had provided CD of angiography, it did not provide CD of angioplasty. The hospital (OP) stated in court that as the wire did not cross the legion the angioplasty could not be performed and therefore no CD was made. Perhaps if this aspect was properly explained to the patient by a senior doctor or hospital administrator, the patient would not have reached the court).
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	Is consent of the patient/attendants required to shift/transfer a patient to another facility/hospital?	p. 151
	Transferring/shifting the patient to another hospital does not require written consent of the patient/attendants, especially if the transfer is due to inadequacy of facility/infrastructure/consultants. The patient/attendants must be explained and counselled the reason/s for doing so. (In this case, one of the defences of the hospital (OP) was that the patient's husband was persuaded, and after he gave written consent, his wife was shifted to another hospital as ventilator was required and the hospital (OP) did not have one. This was outrightly denied by the patient's husband). Every act of the doctor must be on sound and scientific justifications and only in the bonafide interest of the patient. This dictum applies even when one doctor consults another doctor of his/her speciality or another speciality or takes a second opinion. There must be valid justification/s for doing so. (In this case, the gynecologist and the anesthetist (OPs) had stated that the patient had suffered post-surgery complications due to cardiac arrest and not due to anesthesia. The court questioned the need "to call an expert in anaesthesia in addition to a cardiologist. In case there was no complication due to the administering of anaesthesia, there was no need to call for another doctor having specialisation in anaesthesia." The defense obviously was rejected). Every hospital wherein interventions are performed need not have ventilators. However, in case major elective surgeries are performed or critical cases are accepted, having ventilators is mandatory, otherwise it could be construed as negligence. (In this case, the patient underwent cesarean and later expired. One of the allegations was that the hospital (OP) was negligent for not having a ventilator, but it was not accepted by the court). Anesthetists must contemplate and exercise care on deciding the type of anesthesia required as well as the dose of the anesthetic drug. (In this case, one of the allegations was that the anesthetist (OP) was negligent as he gave general anesthesia instead of spinal anesthesia and "the dose of anaesthesia given was excessive." The court accepted the defense that this was done as the patient had already undergone two previous abdominal surgeries observing that "the doctors could choose any mode of anaesthesia, depending upon the previous history"). In India, patients have to positively prove negligence in courts or the doctor/hospital has to be grossly/patently negligent, otherwise the court presumes that there was no negligence. In this case, the patient's husband had questioned administration of general anesthesia to the patient but this was rejected by the court "because the doctors attending on the patient were properly qualified and it is presumed that they took decision to administer general anaesthesia, based on their experience and good judgment").
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	A self medicating patient and wrong history-Two common reasons for medical mishaps in India	p. 153
	Patients are duty bound to disclose complete and correct history to the doctor but many a times it is not done resulting in avoidable medical mishaps. Greater care and contemplation is required in taking history of patients, especially the ones who need emergency care and during first consultation. (In this case, the court drew adverse inference as the patient had not disclosed to the doctor (OP) that he had taken double dose of oral hypoglycemic drugs on that day. The court observed that "It is duty of the patient to give his complete history before any treatment is started"). Self medicating patients are a common phenomenon in our country. Once this fact is discovered or disclosed, it must be specifically recorded in the medical records. Great caution is required in dealing with such patients. (In this case, the patient was taking hypoglycemic drugs without any proper medical advice of any qualified doctor, and the court took cognizance of this fact). Repeat investigations only when the report is not from a standard facility, suspicious and/or abnormal. (In this case, one of the allegations was that, after perusing the blood report of the patient, wherein blood sugar was reported at 450 mg/d, the doctor (OP) ought to have repeatedblood sugar test from another laboratory before starting insulin.The court did not take cognizance of this allegation). A hospitalized patient who leaves the hospital without a valid discharge and/or intimation must be treated as a "missing patient." The local police station must be informed in writing, and this fact must also be recorded in the medical records. In case of patients, who are not hospitalized but treated on an outpatient basis, there is no need to intimate the police but appropriate endorsements must be made in the medical records. (In this case, the patient who had come to the hospital in a critical condition due to high blood sugar left without any intimation once his condition stabilized. This fact was very specifically pointed in defense and the court also took note of the same). Courts are more accommodating in emergencies. In this judgment, the court has reiterated this legal position observing that "higher the acuteness in emergency and higher the complication, more are the chances of error of judgment." Behave compassionately with the patient/attendants, especially in situations where the patient is critical, undergoing a major surgery, post mishap, and so on. (In this case, one of the allegations was that when the patient was re-hospitalized the doctor (OP2) misbehaved with the patient's relatives). Hospitals and nursing homes charging a mere nominal registration fee from all patients cannot be sued in a consumer court.
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	"Fee of the doctor was not to vanish even if he had taken 2-3 days or hours more" - What was the hurry, questions National Consumer Commission	p. 155
	Haste in performing a medical act when it is not required and not rushing to perform an act when the same is required are both instances of negligence. (In this case, the patient who was diabetic consulted the doctor (OP) for a boil on his little finger and was immediately operated. The patient developed gangrene and his little finger was amputated. The court held the doctor (OP) negligent for failing to manage blood sugar or give insulin before operating the patient. The court observed sarcastically that "fee of the doctor was not to vanish even if he had taken 2-3 days or hours more in satisfying that after effects would not be dangerous. He did it hurriedly, for the reasons best known to him"). Any attempt to interfere with the legal process is generally counterproductive and must be avoided. (In this case, the doctor (OP) performed a minor surgery. On the fifth post-surgery day, when the patient came for follow-up, the doctor (OP) took the prescription slip that he had given on the day of the surgery from the patient, tore it, and then gave the patient another prescription slip bearing the date of the surgery stating that that there was no need for further checkup. The court held the doctor negligent for this conduct observing "it smacks malafide intention on the part of the doctor (OP)" and "the doctor (OP) tried his best to hide the omissions and commissions done by him").
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