Medical Law Cases - For Doctors: Table of Contents

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The court in this case has used a rarely used provision of The Consumer Protection Act 1986 [Section 14(1)(hb)] to penalize the hospital (OP) and directed it to pay 1 crore in the State Consumer Welfare Fund "for causing injury to those large number of consumers who are not identifiable conveniently."The court has justified this action observing that ""It is a matter of common knowledge that only 0.3% of the aggrieved consumers approach the courts of law in India" and that "there are thus a large number of patients who have not come to this court with such complaints." The court held the hospital (OP) guilty for performing unnecessary surgeries and raising bills for surgeries that were not performed.
Hospitals/surgeons must ensure that all organs, tissues, etc. removed during surgery are sent for histopathological examination (HPE). The surgeon is thereafter bound to see the HPE reports, record important findings in the medical records, and take requisite action. It is also advisable to show the removed organs/tissues to the patient attendants and in case the same are handed over to the patients / attendents, take proper receipt and preserve it. (In this case, the surgeon and the hospital (OPs) were held negligent for sending only the uterus and not the gall bladder removed during surgery for HPE. The patient alleged that the gall bladder was removed in parts and therefore was intentionally not sent for HPE. The surgeon (OP) on one hand stated that he had handed over the sample to the patient's relative and the report should be available with them, and on the other hand stated that the said surgically removed parts were duly shown to the patients family and handed over to the hospital/OT staff for sending them for HPE, only the labelling of the sample container is done in the presence of the operating doctor and thereafter the doctor proceeds for operation.The actual physical act of sending the sample for HPE is the duty of the hospital staff and not the doctor).
Failure to have a proper treatment/surgical management plan could be construed as negligence. Diagnosis, plan for surgery, postoperative care, long-term follow up of the patient, and so onmust be clearly and categorically incorporated in the plan. (In this case, the court held that the patient who was planned only for laparoscopic cholecystectomy had to undergo exploration of the common bile duct (CBD)and hysterectomy only due to lack of proper surgical management plan).
Performing an elective surgery as an emergency and vice-versa both are negligence. (In this case, the court concluded that "an emergency situation was created to get treatment of an otherwise elective condition in a CGHS recognized private hospital" and reprimanded all the parties for the same).
Do not exceed the mandate given by the patient in consent except in cases of immediate and imminent danger to the patient. Taking consent of the patient's attendants, if such a situation arises during surgery, is always advisable. (In this case, the court accepted the allegation that while performing cholecystectomy, the surgeon (OP) performed hysterectomy and CBD exploration without consent as the consent was given only for removal of gallbladder through laparoscopy procedure).
Every medical act must be supported by scientific reason/s. (In this case, the court held that the CBD exploration was "unwarranted" and "without any scientific need for the same").
Hospitals are bound to "provide adequate manpower commensurating to the services it provides."
Raising false bills, even at the patient's directions, is not only medical negligence and deficiency of service but also a fraud and the concerned doctors/hospitals can be prosecuted in a criminal court for the same. (In this case, the court held the hospital (OP) guilty of fraudulently mentioning to have carried out bowel resection and salpingo-oopherectomyand raising bills for the same even though the same were not done. The court rejected the defense of the hospital (OP) that it was done only to assist the patient in claiming money from CGHS as it does not have the package for CBD exploration).
Prepare medical records correctly, completely, and contemporaneously. The court has very aptly commented that there was "no sense of record keeping" in this case. The court commented adversely for failure to record important events such as collection of surgically removed tissues, their dispatch for HPE, collection of report for follow up action, as well as patient's admission, provisional diagnosis, final diagnosis, treatment provided including surgical operations performed, postoperative care given, advise for long-term follow up, surgery notes with operative findings.

End-of-life care instructions, such as Do Not Resuscitate (DNR), Allow Natural Death (AND), and Living Wills, are not legally recognized in India. The government has proposed "The Medical Treatment of Terminally-Ill Patients [Protection of Patients and Medical Practitioners] Bill," however, this Bill gives such rights only to terminally ill patients and their attendants. In this case, the patient was diagnosed with acute myeloid leukemia (AML), was under palliative care, and the father had signed a DNR form. Although the patients father tried to indirectly challenge the aforesaid, the court has not expressed its view. Nevertheless, following such instructions is presently risky and should be avoided.
Consent form must clearly record the risks involved. Greater caution and care is required in recording the exact percentage of the risk. (In this case, it was alleged that there was no informed consent as the risk mentioned in the consent form was "Haplo graft - relapse + infection can cause mortality of 50% in the first 100 days," however, in the court the doctors and hospitals (OPs) stated that the survival rate in such high risk BMT is only 5-10%. Although the court held that the consent was proper, greater care ought to have been exercised in disclosing the percentage of risk.)
Hospitals must ensure availability of drugs, disposables, equipment, etc. This dictum is all the more relevant for tertiary care hospitals and the ones that provide specialized treatment. In case of non-availability, requisite steps must be taken to get the same at the earliest. Doctors must be informed of any shortage or non-availability well in advance. (In this case, one of the allegation was that a medicine "Foscarnet" was not available in the hospital's (OP) pharmacy and no steps were taken by the hospital (OP) to procure the said medicine.)
Once the patient is referred to another doctor for taking opinion, it is important to wait for the said opinion. Proceeding without taking any such opinion into consideration is risky and should be avoided except in cases of dire emergencies. (In this case, one of the allegations was that the patient was referred to another doctor at CMC Vellore but without waiting for the said opinion the doctor (OP) performed BMT.)
Try to avoid leaving a patient under treatment midway, especially for treatment/surgeries that require specialization or extraordinary care. Emergencies of both the doctor and the patient would be an exception. Ensuring that the patient is under the care of a competent substitute is the legal responsibility of the doctor incharge of the patient. (In this case, one of the allegation was that, after performing bone marrow transplant (BMT), the doctor left for abroad without proper care. The doctor pointed out in defense that, in her absence, the patient was under the palliative care of a senior oncologist and pediatrician.)
Issue medical records within 72 hours of request made by the patient/attendant.

Law distinguishes "preventable" ailments/conditions/complications from the "treatable" ones. Failure to take preventive/precautionary steps in appropriate cases could be construed as negligence. (In this case, the court has observed that "postoperative acute renal failure should be looked at as a 'preventable' rather than 'treatable' clinical entity").
Be vigilant of the post-surgery/treatment complications as delay in diagnosing/managing them could be construed as negligence. (In this case, the court has observed that "ureteric injury is a rare, but severe complication of pelvic surgery which is recognised post operatively;""it is incumbent on all practitioners performing procedures around the ureter to be aware of the spectrum of possible injuries to the ureter, factors that increase the risk of injury and techniques for early recognition" and therefore "surgeons must be vigilant in the immediate post-operative period." The court found that the bed-head-ticket of the ticket recorded "bleeding+"and further observed that at "that stage OP (doctor) should have opened the abdomen to stop the bleeding").
Do not discharge a patient forcibly, least of all to conceal a mishap/injury/complication/negligent conduct. (In this case, one of the allegations was that, on diagnosing damage to the kidneys after surgery, the patient was forcibly discharged and referred to another hospital).
Do not conceal an injury/mishap/complication suffered by the patient during the course of treatment. This fact must be disclosed to the patient/attendants at the earliest and appropriate remedial measures must be taken.
Follow the "discharge against medical advice" protocol in all cases where discharge is on the patients/attendants insistence. (In this case, the hospital stated that the patient was discharged and referred to another hospital on the insistence of her relatives whereas the patient alleged that she was forcibly discharged after diagnosing injury).
Failure to document correctly or at all is one of the biggest cause of negligence. (In this case, the court found that the hospital's (OP) medical records were devoid of exact postoperative scenario for 48 to 72 hours; nurse's record was conspicuously missing; and nothing was mentioned therein about fever or infection. The court very aptly observed: "It's very important that, the treating doctor should properly document the management of a patient under his care. Medical record keeping has evolved into a science of itself").
Advise appropriate drugs when indicated. Delay could be construed as negligence. (In this case, the court drew adverse inference against the doctor (OP) for the delay in taking the decision to use corticosteroid. The court further observed that "otherwise it would have changed the premise in this case").
Delay in referring the patient to an appropriate consultant could be construed as negligence. (In this case, the patient had suffered ureteric injury during hysterectomy. The court has observed that "such patients should be promptly referred for urological evaluation because delay in diagnosis is the most important factor contributing to the morbidity and rarely mortality of bilateral ureteric injury").
Hospitals ordering internal enquiry, especially after a mishap, must ensure that the members of the enquiry panel are not in any way connected or involved in the mishap. This is one of the elementary laws of natural justice. (In this case, the hospital (OP) had initiated an internal enquiry of which the doctors who were allegedly negligent were also members. The court commented adversely on this aspect).

In case investigation reports point out to any suspicion, advise and perform further investigations that are indicated. In appropriate cases, refer the patient or take opinion from another specialist. Proceeding further without taking the requisite steps is negligence. (In this case, the ultrasonography (USG) reported "only small part of common bile duct (CBD)visualized" and computed tomography (CT)scan reported suspicion of neoplasm. The surgeon (OP) went ahead to perform cholecystectomy. The court held the surgeon (OP) negligent observing that he should "have been more vigilant after perusal of USG and CT scan reports" rather than ignoring them on his clinical decision and posting the patient for laparoscopic surgery on the very next day. The court further observed that as neoplasm (cancer) "was suspected, referral or second opinion could have been more helpful to plan proper surgery" and "It was surgeon's (OP) duty to rule out the possibility of neoplasm whether it was benign or malignant before putting a knife.") ,
Performing an elective surgery on an emergency basis without any sound justification could be held as negligence. (In this case, the court held the surgeon (OP) negligent for performing cholecystectomy in a hurry without proper investigations and diagnosis, resulting in multiple complications and further suffering.)
Failure to manage a complication is negligence per se. It is equally important that grievance/complaint made by the patient/attendants must be heard and taken into account and they must be informed about the remedial steps taken. (In this case, one of the allegation was that post-cholecystectomy there was "excessive leakage of bile through the drain for three months, but the OPs (surgeon and hospital) did not pay any heed to these complications.")
Follow standard practice/guidelines.
It is advisable to inform the patients/attendants and take their consent before extending/deviating from the agreed course during an intervention. (In this case, the surgeon (OP) had planned a laparoscopic cholecystectomy but later opened the patient as the hepatic vein was cut. In defense, it was specifically pointed that before doing so the patient's relatives were informed and their proper consent was also taken.)
It is advisable that consent must be taken on a day near the date of the surgery.However, law does not prescribe this period specifically.(In this case, a very specific allegation was made that on the consent form the date of taking consent was falsely mentioned as the date of the surgery whereas consent was taken 3 days before the surgery. The court did not comment on this aspect.)
Law expects higher standard of care from specialists vis-a-vis non-specialists. In this case, the court has very aptly observed on this aspect thus: "It is important to note that, every patient expects reasonable care from the treating doctor, but highest degree of skill and care is expected from the specialist in that subject."
Consumer courtsusually compensate the patient for the actual harm/injury caused in cases of medical negligence. It is neither "damages" nor a penalty. In case, the patient receives some amount from a third party, the said amount will be deducted from the compensation awarded by the court. In this case, the patient had received certain reimbursements towards his treatment from his employer but had specifically pleaded in the court that the said amount should not be deducted from the compensation. The court rejected this plea observing that the patient "cannot have benefit of both the worlds. It would amount to undue enrichment of the complainant (patient)."

Negligence is the failure to anticipate ordinary problems and take ordinary precautions by a reasonable person. The court has aptly stated this dictum thus: "One principle emerges upon which there is universal agreement, namely, that whether or not an act or omission is negligent must be judged not by its consequences alone but also by considering whether a reasonable person should have anticipated that what happened might be a natural result of that act or omission." This case illustrates the aforesaid legal dictum. The patient who was otherwise normal, left the general ward one night, climbed to the roof, jumped, and committed suicide. The court held that there was no negligence in the instant case as a reasonable person would not have foreseen the patient's act as the patient was neither a psychiatric patient nor suffering from depression or a mental disorder.
Patients in need of special care must be provided appropriate care and attention. The standard of care that law expects from doctors/hospitals in such cases is very high. (In this case, the patient who underwent surgery and was in the general ward committed suicide. The court held that no negligence could be attributed to the hospital/doctors as the patient "was an ordinary patient without any history of psychiatric problem, depression or mental disorder which would have required the hospital authorities to take extra care and precaution to ensure that the patient may not cause self harm or harm to someone else").

Every gauze piece left inside the patient's body is not negligence. In appropriate cases, the patient must be specifically informed and accordingly counselled. (In this case, the patient who was suffering from breast abscess alleged that the doctor (OP) had left a gauze inside the operated portion which led to breast sinus. The court on perusing medical texts found that in such cases the doctor "may simply pack the abscess wound with gauze for 24-28 hours to absorb the pus and discharge" and that "packing the abscess wound with gauze is the standard medical procedure").
Discharge summary must specifically record if any foreign object was found during an intervention.
Law takes "known complications" into account in dealing with cases of medical negligence.

In case of a surgery, where a foreign object is removed from the patient's body, the following protocol is advisable:

Record very specifically the aforesaid fact in the surgery notes.
Handover the foreign object to the patient's relatives/attendants in a sealed cover and take acknowledgment of receipt from them.
Duly record this fact in the discharge card also.

(In this case, a mop was left in the patient's abdomen during a caesarean, and the same was removed at another hospital by another doctor. The mop was sealed and handed over to the relatives of the patient and this fact was specifically recorded in the discharge card. The court took cognizance of the aforesaid).

Compensation granted by court in cases of medical negligence has a twin purpose. At the outset, it is obviously to compensate the patient/relatives for the loss of life/limb. The second purpose is to ensure and enhance patient's safety. But it seems that the message that has percolated down among patients/relatives, especially after the Supreme Court granting 11.5 crores as compensation, is that this is an avenue to make money. Illogical and astronomical sums claimed by the patients/relatives in legal proceedings are an indication to the aforesaid tendency. There is, therefore, a crying need that policy makers/society contemplate seriously and take appropriate remedial steps in this direction.