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CASES
Consent for medical termination of pregnancy in India - A woman's exclusive domain, no place for man's concurrence
May 2011, 4(5):63-64
Medical termination of pregnancy is a prerogative bestowed by Indian law exclusively on women and men have no role to play. (
Medical Termination of Pregnancy Act, 1971 - Section 4 (b) - No pregnancy shall be terminated except with the consent of the pregnant woman.
) But the ground reality of Indian society is that such decisions are usually taken by the family and male members have a dominant role to play. It is therefore advisable that in cases where a couple consults for abortion, the woman's viewpoint must be taken in isolation and this fact must be duly recorded. (In this case, the doctors (OP) in their defense had very specifically cited that they had counseled the patient twice in a span of 3 days and on one occasion in her husband's absence.)
In cases where unusual requests are made by the patient or unusual circumstances exist or there is any suspicious situation, it is advisable to take the patient's consent in the presence of two neutral witnesses. (In this case, the patient, a young lady, who underwent abortion and sterilization, later alleged in the court that the aforesaid procedures were performed as a result of her husband's connivance with the doctors (OP).)
In case of sensitive procedures like abortion or sterilization, after counseling the patient, the patient must be given enough time to take decision. Giving a few days to take decision or holding one or more counseling sessions is always advisable. Duly record in the consent form the date/s with time when the patient was counseled and the date with time when the patient gave consent.
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MEDICOLEGAL REPORT
Importance of bed-chart/bed-head-ticket
September 2008, 1(9):132-133
The bed-chart/bed-head-ticket is the most important, contemporaneous medical record having best evidentiary value in a court. It is a part of the medical records of an IPD patient. Hence, it must be maintained and updated regularly and preserved carefully after the patient is discharged.
Contraindications must always be taken into account before prescribing any medicine. If any contraindicated drug is advised, it is imperative to briefly record reasons for doing so.
Sticking to the standard dosage of a drug may be negligence in a given case. Doses must be modified with reference to the particular patient and his or her condition at the time of prescribing the dose.
Delay in starting the treatment, especially, in emergency patients is negligence per se.
The time when the patient is first checked must be duly recorded. Thereafter, entries must be serially made in the patient's medical records at stipulated intervals.
At the time of referring a patient, it is incumbent to properly check and record all vital parameters.
There must always be a reasonable justification for adopting a particular course of treatment.
In case of hospitals that provide both free and paid treatments, even patients who are treated absolutely free of cost can get relief from a Consumers' Court.
In case an employee doctor of the hospital is negligent, both the negligent doctor as well as the hospital have to pay compensation.
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CASES
Precautions in performing cesarean section with tubectomy
June 2010, 3(6):76-77
In cases where cesarean section and tubectomy are planned during the same operation, the following are advisable.
In high risk pregnancies, families having genetic problems, couples having their first child, couples not having a male/female child, and such other instances, specifically advice the couple that the survival of the infant and its health cannot be taken for granted and that they must take this aspect into account before taking any decision on tubectomy. Specifically record the aforesaid in the consent.
Take proper written directives in advance on what ought to be done if the doctors are suspicious about the health of the infant.
A pediatrician should be present during delivery. Proceed with tubectomy only after the pediatrician duly certifies about the child's health condition.
Proper protocols must be followed with surprise checks to ensure that the nurses and paramedical staff promptly and properly follow the instructions of the doctors.
Hospitals and nursing homes must ensure oxygen supply round the clock with sufficient numbers of spare oxygen cylinders.
Entries in medical records must always be made in legible handwriting.
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Concept of "Discharge on Request," unknown to law - Law only recognizes "Discharge on Recovery (normal)' or 'Discharge/Leave Against Medical Advice (DAMA/LAMA)"
June 2017, 10(6):94-95
There are only two types of discharge - discharge when the doctor in-charge of the patient is of the opinion that the patient should be discharged and discharge/leave against medical advice (DAMA/LAMA). There is nothing like "discharge on request." Once a request for discharge is made by the patient/attendants and if the doctor in-charge feels that the patient can be discharged, this is considered a normal discharge. If not, the doctor in-charge must refuse to discharge the patient, and if the patient/attendants still insist, a DAMA/LAMA must be given. (In this case, the patient requested for discharge, the surgeon (OP) felt that the "patient had recovered well" and hence was discharged. This was a normal discharge although the surgeon (OP) repeatedly refers to it as "discharge on request").
Any surgical intervention should be preceded by appropriate preoperative investigations. Higher investigations must be advised only if indicated. (In this case, the allegation was that in the "haste" to perform surgery, the surgeon (OP) avoided doing higher investigations such as CT/MRI and relied on USG. The court rejected this allegation observing that "The reference to CT/MRI would have been there, in case there would have been slightest doubt of presence of carcinoma in gall bladder/pancreas but without any indication, in case the patient was not referred to CT scan/MRI then the doctor cannot be held negligent").
Final diagnosis should be backed by appropriate and conclusive investigations. (In this case, USG showed gallstones in the gallbladder, for which a successful lap cholecystectomy was done; however later, HPE reported carcinoma of the gallbladder. The patient's allegation of wrong diagnosis was rejected by the court).
Send organs/tissues dissected or resected during surgery for HPE to confirm the results of surgery and/or for arriving at the final diagnosis. (In this case, the surgery was performed for gallstones in the gallbladder but the final diagnosis was carcinoma of the gallbladder based on HPE report of the excised gallbladder).
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Writing "Not for medico-legal purpose" on stationery - Irrelevant, ineffective, and counter-productive
September 2010, 3(9):117-118
Writing "This report is not meant for medico-legal purpose" or similar quotes on the stationery used for writing medical records and documentation is fairly common in northern part of the country. This is of no help. Every report, prescription, advice can be used in a court of law against the doctor irrespective of any such statement. On the contrary any such statement may induce the courts to draw adverse inference against the doctor accused of medical negligence. This practice must therefore be dissuaded and discontinued forthwith.
Each and every report of pathology laboratories and Imaging Centres must have appropriate disclaimer clause/s specifically stating the chances of error or correctness of that particular investigation or method of investigation.
Sex determination of the fetus or even the conceptus is now illegal.
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"Search and seizure" of medical records by police
October 2010, 3(10):127-128
In case of medical mishap or accident, police has the necessary legal authority under Chapter 7 of The Code of Criminal Procedure, 1973 to search the clinic or hospital and seize medical records of the patient and or equipments. They can exercise this discretion even before registering the First Information Report (FIR) merely on receiving information of commission of an offence. In case of such search and seizure, police has to compulsorily ensure presence of two or more independent and respectable inhabitants of the locality and must prepare a proper "panchnama", recording in detail the description of the papers/equipments seized. In such an eventuality you must:
Put initials and rubber stamps on each and every document that the police want to seize.
Then number all the documents serially. This will take care of the possibility of adding or removing any paper at a later stage.
Request the police officer to put his or her initials on the photocopies of all the papers that he or she is taking. Be prepared to hear a refusal.
Be careful not to antagonize the police team unless and until it is absolutely necessary.
Calling advocates or local influential persons will be of great help.
(In the present case, the doctor's defense was that he was unable to produce medical records before the consumer court as the police had seized it.)
Anesthetists must do pre-anesthetic evaluation of the patient at least a day before the intervention in elective procedures/surgeries and the same necessarily includes physical examination of the patient. Unfortunately, in India this protocol is routinely breached and the patient and the anesthetist meet for the first time in the Operation Theatre (OT).
Manipulating medical records rarely helps in courts.
Factors like age and physical fitness of the patient must be taken into account before taking a decision to perform any surgery/intervention.
In case of children below the age of 12 years, take consent of the parents/guardian only; between 12 and 18 years of both the patient and the parents/guardian and above 18 of the patient only.
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Power failure and time required in switching over to alternative power source - Precautions
July 2011, 4(7):91-92
Power generators / Invertors are now mandatory and standard equipment for all hospitals and nursing homes. It is equally important to ensure that in case of a power failure the time required to switch to the alternative power source is minimal especially for critical departments like the Intensive Care Unit (ICU), Operation Theater (OT), and so on. (In this case the court very specifically observed that "a hospital which is attending delivery, including performance of surgery, should be equipped with basic amenities, apprehending problem, including power failure". The court was commenting on the patient's allegations that during surgery due to power failure there was no power for 15 minutes resulting in defective surgery.).
Completely and properly written medical records always persuade the courts to draw positive inference in favor of the doctor / hospital. (In this case the court appreciated that in the surgery notes, something like 'Urine output nil at the end of surgery' was also specifically recorded.)
Correct, complete, regular, and on-time information about the patient's condition to relatives / attendants is not only legally required, but it also reduces chances of friction with the patient in future.
When recording a history of the patient, complaint/s as described by the patient must be duly recorded. (In this case the gynecologist (OP) had advised the patient to consult her immediately if she suspected any change in the fetal movement, but the patient contacted her after three days. In the patient's history it was duly recorded that she was 'not able to feel the fetal movement, since three days'. This small noting helped the gynecologist (OP) in proving her innocence in the court.)
Confirming blood group, proper cross-matching, and requisitioning blood, if required, must be completed well before starting a procedure / surgery.
The patient, especially critical ones, must be continuously monitored and vitals must be duly recorded at requisite intervals.
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A literate patient signing consent form - The best safety net for doctors
September 2016, 9(9):149-150
Illiterate/less literate patients must be dealt with greater care and caution. Even mundane aspects need to be explained in detail and that too with greater care and clarity. It is advisable that consent of such patients is also attested by an independent witness. Such precautions are not that strictly required in case of literate patients. This case is an excellent illustration of the aforesaid. It was alleged that "consent was obtained from the patient and husband on the dotted line on a blank form." The court rejected this allegation observing that "It is pertinent to note that the complainant (patient) herself is an advocate and not an illiterate person, both have signed the consent form of their own volition."
For all endoscopic/laparoscopic procedures, open surgery is also an alternative. The patient must be informed about both the options and consent must also be taken for both. (In this case, one of the allegations was that "instead of laparoscopic surgery, the OP (surgeon) performed open cholecystectomy").
The patient must be given relevant information in comprehensible terms, given time to contemplate and take decision, and only then signature on the consent form must be taken. (In this case, one of the allegations was that "consent was obtained from the patient and husband on the dotted line on a blank form." The court found that the surgeon (OP) had "explained about surgery to the complainant (patient) and her husband in detail, thereafter both had signed the consent form" and hence rejected this allegation). ,
Failure of the patient to follow medical advice must be specifically recorded. This protocol is all the more mandatory when advice is given for corrective actions for post-surgery complications or for complications during the course of treatment. (In this case, the patient developed extra hepatic obstruction to the bile flow after cholecystectomy. The court drew adverse inference as the patient was advised re-exploration for the assessment of complication and corrective surgery but the patient refused to get re-admitted and instead chose to go to other doctors and that too after 3 weeks).
"Not all medical injuries are the result of negligence" observed the court in this case where the patient who had undergone cholecystectomy suffered post-surgery obstructive jaundice. The surgeon (OP) was not held negligent.
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Precautions in treating self-medicating patients
September 2010, 3(9):111-114
Self-medicating patients need to be managed with utmost care and caution. There are some drugs which are relatively contraindicated with others and in case the patient has not disclosed to the doctor about his/her having taken a particular drug and coincidentally the contraindicated drug is prescribed, it can and has led to catastrophic consequences. Doctors face such situations when the patient or in some cases even the referring doctor omits to make complete disclosures. The probability of happening of this mistake increases manifold in the case of self-medicating patients, and hence more care is needed. Taking proper and complete history and specifically asking a self-medicating patient pointed questions on the drugs that he may have taken should be a mandatory exercise. Prominently record in prescriptions/case papers/bed-head tickets/that the patient is self-medicating one. This will not only act as a complete defense in legal proceedings, but will also alert other healthcare workers involved with the patient.
Hospitals and nursing homes must:
Devise and enforce protocols whereby RMOs and junior doctors take requisite advice from consultants, especially on admission, postsurgery/procedure/intervention complications, sudden deterioration in condition or such other emergencies rather than starting treatment/medication on their own.
It is equally important to ensure that the consultants are also available when required and do give advise and in appropriate cases do visit the patient even at odd hours, if the need arises.
These protocols must be diligently followed even during late nights.
Carefully take note of and record symptoms. Symptoms must be given due importance in diagnosis.
Attending patients after working hours or home-visit calls is contentious issues but, efforts must be made to attend patients. Legally in India, the last word has yet not come.
In appropriate cases, delay in advising appropriate investigations could be construed as negligence.
Any abnormality reported in investigation reports must be taken seriously and suitable steps must be taken.
Recording the days of pain, discomfort, or complain in the patient's history is a standard protocol and must be followed.
It is prudent that common advice such as "take rest" should be given in writing.
Before accepting to treat a patient, ensure that the ailment is within your area of expertise, especially with regular patients. This precaution is all the more necessary for general/family physicians who are generally insisted upon by the patient or family members to treat the patient even in doubtful cases. In such a situation, once you are sure that the patient is outside your expertise or that opinion from another specialist is required, forthwith excuse yourself and handover the management of the patient to the concerned specialist.
History of the patient must not only be referred, but relevant parts must also be recorded.
In the case of provisional diagnosis or differential diagnosis, perform appropriate investigations to rule out or confirm and arrive at final diagnosis.
In the case of critical patients, the attending doctor is duty bound to make arrangements for transfer. This includes shortlisting hospital; ensuring that bed/ICU and/or other facilities required are ready; speaking and discussing with the consultant under whose care the patient is being transferred; arranging ambulance and if necessary accompanying the patient in the ambulance. Courts draw positive inference of such conduct in the doctor's favor.
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MEDICOLEGAL REPORT
Legal liability in failed tubectomy resulting in pregnancy
January 2008, 1(1):6-0
Each and every patient in family planning operations must be counseled and specifically told that the method is not 100% safe.
In Consent Form, record specifically that the patient has been counseled and the probability of failure has been specifically explained. (Recently, the Bombay High Court has directed compulsory counseling of all patients of family planning operations in government hospitals.)
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CASES
Hospitals bound to issue outpatient tickets to all OPD patients
January 2013, 6(1):13-14
Outpatient Department (OPD) patients who visit the hospitals must be given an 'outpatient ticket' briefly recording the diagnosis, treatment, and the next day fixed for review. Failure to do so could be construed as deficiency of service. (In this case, the court refused to believe the internal records of the patient produced by the hospital (OP) and observed that the hospital (OP) ought to have given an OPD ticket to the patient, as is normally done by other hospitals).
Discharge summary must briefly record the patient's history, diagnosis, treatment given, condition at discharge, and post-discharge instructions. Failure to do so is viewed unfavorably by the courts. In this case the court went to the extent of observing that the discharge summary was "a glaring example of the casual nature" and "a monumental example of the careless attitude" of the hospital (OP).
Failure to advice hospitalization when it is indicated is negligence.
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'Unfair Trade Practice' by doctors/hospitals - Not covered by Professional Indemnity Insurance Policy
April 2011, 4(4):47-48
In case a doctor/hospital is held liable to pay compensation for adopting unfair trade practice, his/her professional indemnity bond may be of no use. In this case, the court held that the doctor (OP) was representing himself as a stone specialist and his hospital as a stone clinic although he was actually an orthopedic surgeon, and this amounted to unfair trade practice. The doctor (OP) alone was therefore liable to pay the compensation awarded by the court and not the insurance company from which the doctor (OP) had taken a professional indemnity insurance policy.
The name of the hospital/nursing home must clearly and properly reflect the services/facilities/specialization offered therein. It is equally important that the hospital/nursing home must have the requisite infrastructure and expertise to deal with the ailments suggested in the name. Any shortcoming on this count can be held as unfair trade practice by the court. (In this case the court held the orthopedic surgeon (OP) guilty of unfair trade practices for naming his hospital as "Nagpal Stone Clinic & High-Tech Hospital" and for practicing in urology.)
Represent yourself properly and correctly according to your expertise, skills, and qualifications in all communications to the patient and the general public or else it could be construed as unfair trade practice.
While writing medical records try to avoid deletions, corrections, overwriting, etc., as these can be portrayed by the patient in court as instances of manipulations and fabrications. (In this case, the court held that though there were some deletions in the discharge card, the important words were absolutely clear and not tampered with and hence rejected the patient's allegations regarding manipulation of medical records.)
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MEDICOLEGAL REPORT
Legal validity of consent from an adult and mentally oriented patient's wife/husband/parents
August 2009, 2(8):96-97
Do not take consent of wife, husband or parents in adult and otherwise well-oriented patient. Take consent of the patient only and none else. The exception is when the patient is incapable to give consent - minor, mentally unfit, unconscious, drunk, and so on. (In this case, the failure to take consent from the patient has been considered as a serious lapse -
'res ipsa loquitor'
that is, a case where negligence is presumed by the court.)
Do not deviate from the consented procedure except in emergencies.
Not filing of original documents in court inevitably leads to an adverse inference against the doctor.
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Consent in sterilisation - Married couples vis-à-vis unmarried/live-in couples
January 2009, 2(1):1-2
Consent of both the husband and wife is absolutely necessary in case of sterilization procedures of a married couple.
In case of sterilisation in unmarried/live-in couples the aforesaid dictum of law is inapplicable and consent of the patient only is required as in normal interventions. It is advisable to take a simple declaration from the patient undergoing sterilisation that he or she is unmarried and the same must be carefully preserved with the medical records of the patient.
After tubectomy, that part of the fallopian tube which is cut and removed must be sent to histopathological examination and the report must be duly recorded in the medical records of the patient. A copy of the histopathological report must also be preserved in the medical records of the patient.
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CASES
Consent for a possible 'switchover' during a surgery / procedure
August 2012, 5(8):107-109
When taking consent for surgery / procedure, if any additional or alternative procedure is anticipated, consent for the same must also be specifically taken. It is rather mandatory that the anticipated additional / alternative surgery / procedure is specifically named in the consent. (In this case, the surgeon (OP) faced difficulty while performing a laparoscopic procedure, and hence, resorted to open cholecystectomy. The court did not hold the surgeon (OP) negligent and observed that although 'ideally' specific consent ought to have been taken for open cholecystectomy, in the consent for laparoscopy it was clearly recorded that, "I authorize Dr. Anoop Kumar (surgeon - OP1) to carry out any additional procedure at the time of surgery, if so required").
In case of a surgery / procedure, the risk of failure and the commonly occurring complications must be duly explained to the patient and consent must be taken. (In this case, the court held that the surgeon (OP) was not negligent as he had clearly recorded in the consent that, "Chances of Lapro Failure explained".)
It is mandatory that reports of all investigation and diagnostic procedures are kept in the medical records of the patient maintained by the hospital / doctor. In case the same have to be handed over to the patient, ensure that at least a copy thereof is with the doctor / hospital. (In this case, the surgeon's (OP) defense was that he had performed pre-surgery investigations, but could not produce the reports, as the original reports were with the patient and not attached with the bed head ticket of the patient in the hospital. The court categorically stated that even if the investigations were carried out at some other center outside the hospital, the reports "should have formed part of the hospitals record" and held the surgeon (OP) negligent for not performing the requisite pre-surgery investigations. ,
Anesthetists must perform pre-anesthesia assessment of the patient before surgery / procedure and duly record the aforesaid in the patient's medical records. ,
Anesthesia notes must clearly record the name of the anesthetic agent and the quantity used.
Anesthetists must record notes of the anesthesia in the prescribed form and these notes must be separate from the notes of the interventionists.
Consultants must duly record their presence in the medical records of the patient even in emergencies.
In appropriate cases, the interventionist must insist on a fitness certificate from a physician before performing a surgery / procedure.
It is advisable that the patient's relatives / attendants are informed about the patient's condition at regular intervals. This practice is all the more necessary when the patient is in the Operation Theater (OT), Intensive Care Unit (ICU), or such other places where entry of the patient's attendants is regulated.
Failure to perform the requisite pre-surgery tests is negligence
per se
.
The exact time of important medical actions must be specifically recorded. (In this case, the court found that the medical texts had clearly indicated that, 'The time of commencing resuscitation must be noted for medicolegal and prognostic purposes' but the surgeon (OP) had not recorded the same.)
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MEDICOLEGAL REPORT
Treating in accordance with 'Accepted Medical Practice'
February 2008, 1(2):21-0
Ensure that every professional action is in conformity with 'accepted medical practice'.
Surgeons must completely and properly record preoperative, intraoperative and postoperative notes.
Medications, if any, regularly taken by patients for chronic diseases must be duly recorded in medical records.
Surgeons and anesthetists must advice suitable preoperative tests in patients having known history of asthma, diabetes, etc., and must also ensure that such tests are carried out and reports are appropriately mentioned in preoperative notes.
Preoperative test to ascertain whether the patient can bear anesthesia must be conducted and appropriately recorded.
Hospitals/Nursing Homes undertaking complicated surgeries must have necessary specialists like cardiologists/neurologists, either in-house or on-call, sufficient staff and facilities to deal with emergencies.
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CASES
Ultimate object of punishing doctors is "not getting or giving compensation but to have flawless service" as it is question of life and death and effects the quality of life
December 2017, 10(12):185-187
Doctors always wonder why courts are harsh on doctors and give out high compensation putting more burden on them. The court in this case has pointed out to the underlying reason thus: "The ultimate object of the enactment is not getting or giving compensation but to have flawless service. It is much more essential in the medical field as it is question of life and death and affect the quality of life."
Failure to record in continuity or for a specific period of time could be construed as negligence. (In this case, one of the allegations was that nothing was recorded from "3.15 pm till birth of the child." Medical records produced before the court were pertaining to the period before 3.15 and after birth. The court drew adverse inference from this).
Update yourself and follow the scientifically approved and accepted protocols stated in standard medical texts and journals, and SOPs/guidelines of medical associations/regulatory bodies/government bodies. (In this case, the guidelines published by the National Institute of Health and Family Welfare clearly mandated that, if the baby does not cry after birth, in that case do not slap the baby or hang it upside down but this is precisely what was done when the baby did not cry after birth).
Medical records include investigation reports, prescription, and OPD card, and in a case of a hospitalized patient, the admission form, discharge card/summary, daily treatment chart, bed-head ticket, consent form, etc. A doctor/hospital is bound to preserve them, provide copies thereof to the patient on request, and produce them in court as and when required. (In this case, the doctor (OP) produced only the discharge ticket before the court. The court disapproved this conduct observing that "history and clinical findings recorded in the discharge ticket which are based on daily treatment chart or bed head ticket has not been submitted" and "it can very well be presumed that either no documents have been prepared or if prepared are against the non-applicants (doctor)").
The importance of medical records has been aptly summarized by the court in this judgment as follows: "Medical record maintenance has evolved into a science of itself and form an important aspect of the management of a patient. ... It will help the doctor to prove that the treatment was carried out properly. The proper medical record it will help them in the scientific evaluation of their patient profile, helping in analysing the treatment results, and to plan treatment protocols. It is wise to remember that "Poor records mean poor defense, no records mean no defense."
Complaints made by patients should be investigated with due diligence. (In this case, the patient alleged that the obstetrician (OP) did not investigate or take her complaint of reduced fetal movements seriously).
Failure of the patient to follow medical advice should be specifically recorded.
Reports of the investigations performed must be duly preserved and produced before the court. Failure to do so forces the court to draw adverse inference. (In this case, the doctor (OP) stated in the court that CT scan had reported that "cartex of the child is not developed," and therefore cerebral palsy was caused to the child due to genetic or birth defect. The court disbelieved as this CT report was not produced before the court).
Perform requisite investigations when indicated. (In this case, the infant was suffering from severe birth asphyxia, but to ascertain this the first CT Scan was done when the infant was 3.5 months old whereas neuroimaging of the brain ought to have been done within 24 to 96 hours of birth).
Ensure that doctors/nurses write their names and put signature/initials at appropriate places in medical records. (In this case, the court drew adverse inference observing that, even though the obstetrician (OP) had stated that a pediatric resident was in the labor room, the name was not disclosed / recorded).
Manipulation/fabrication of medical records rarely work in courts. (In this case, one of the allegation was that "in column condition of baby at birth cuttings have been made and new words have been inserted").
Compensation in cases of medical negligence is computed on the principle "that the aggrieved person (patient) should get that sum of money, which would put him in the same position if he had not sustained the wrong" (
restitutio in integrum
).
Every aspect of the society needs to be transparent. Transparency is expected from health care providers also. In this case, the court lamented on the lack of transparency from the healthcare providers and directed "the Principal Secretary, Consumer Affairs and Principal Secretary, Medical and Health to formulate a scheme/guideline for keeping transparency in the hospital that patient and their attendants should know exact diagnosis, treatment procedure required and given to the patient from time to time without compromising the quality and urgent nature of the treatment and procedure given or required in the situation."
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Carelessness and overconfidence - The two most important causes of negligence
November 2010, 3(11):145-147
Do not be careless or overconfident. These are the most important human factors resulting in medical negligence.
In procedures such as laproscopy, the probability that injury might have been caused must always be kept in mind, especially if there are post-procedure complications.
Hospitals cannot and should not give all the medial records of a patient to the consultant, irrespective of the relationship between the hospital and the consultant. In case the consultant insists on taking the medical records, their copies must be retained by the hospital. In case of any unusual arrangement between the consultant and the hospital, the patient should be duly informed in writing about the arrangement at the time of admission and acknowledgment must be taken.
Contemporary, accepted, and standard precautions must be contemplated at the stage of planning a procedure / surgery, and the requisite material must be kept ready before starting the procedure. Failure to take the accepted standard precautions is negligence
per se
.
Every doctor must act in accordance with the 'accepted medical practice,' that is, act as a prudent doctor should act.
A high index of suspicion is required when recovery appears to be unduly delayed or the patient develops complications or the complications are not coming under control. Taking a second opinion is always advisable.
Discharge summary / ticket must be prepared after carefully perusing all the medical records. Any inconsistency between the two can lead to an inference of negligence.
The Discharge Certificate must indicate the correct medical condition of the patient at discharge.
Preparing medical records to cover up wrongs is illegal, immoral, and usually counter-productive.
Emergency procedure / surgery must be performed only when indicated.
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Supreme Court has not mandated that every hospital/nursing home where surgeries are performed should have an ICU -Misinterpretation by the national media
November 2017, 10(11):167-169
National media had recently splashed news that in this judgment the Supreme Court has laid down a new law that henceforth hospitals/nursing homes that do not have intensive care units(ICUs) cannot perform any surgery/intervention. This is a wrong interpretation of this judgment. The Supreme Court has certainly held the gynecologist and the nursing home (OPs) negligent for performing hysterectomy in the nursing home (OP) which did not have an ICU but its observations are restricted to this case only and certainly not applicable to all facilities in India.
The surgeon and the hospital both must contemplate whether the requisite infrastructure and facilities required for a particular intervention are available and in working condition before taking a decision to perform an elective intervention. (In this case, the patient underwent hysterectomy at the nursing home (OP) which admittedly did not have an ICU. The patient suffered post-surgery complications, was transferred to another hospital, and later died. It was alleged that lack of ICU was one of the reasons for the death. The Supreme Court held both the gynecologist and the nursing home (OPs) negligent observing that "operation should not have been performed at a nursing home which did not have the ICU when it could be reasonably foreseen that without ICU there was post operative risk to the life of the patient").
Performing an elective surgery in haste without scientifically tenable justifications could be construed as negligence. (In this case, the decision to perform an elective surgery about six months after the disease first surfaced without first controlling blood pressure and hemoglobin was questioned in the court. The lower court in fact went on to hold the gynecologist (OP) negligent for failure to justify/record that the "operation was extra urgent and it did not brook any further delay;" for performing surgery on the next day of admission after watching blood pressure and hemoglobin chart only for few hours without deferring the "operation for the time being to observe the condition of the patient for some time more;" and for failure to inform the patient/attendants of such an emergent need. The higher courts (National Consumer Commission and Supreme Court) disagreed with these findings as the gynecologist (OP) produced medical texts which clearly permitted surgery even in such circumstances).
The treating doctor has the right, authority, and discretion to make choices, but every decision must be within the four corners of the "accepted medical practice." (In this case, the allegation was that the gynecologist (OP) performed hysterectomy in a haste without controlling blood pressure and raising hemoglobin. Medical texts were produced by both the patient and the gynecologist (OP) in support of their contentions. The lower courts upheld this allegation but the National Consumer Commission and the Supreme Court rejected this allegation holding that the gynecologist was entitled to make a choice and to take the risk as medical texts supported such a course. The Supreme Court has very specifically observed that "judge's preference of the opinion expressed in the books cited on behalf of OP Nos. 1 and 2 (gynecologist and nursing home) would not be sufficient to establish negligence against OP Nos. 1 and 2").
Greater care and contemplation is required in cases where the doctor makes the choice of the hospital/nursing home for admitting his/her patients. (In this case, the gynecologist (OP) who was treating the patient chose the nursing home (OP) for performing hysterectomy. This aspect was very specifically questioned in the court alleging that the said nursing home (OP) did not have ICU facilities and the gynaecologist's (OP) insistence on performing surgery in the said nursing home (OP) was "a sheer act of professional and monetary greed in order to procure his commission from the proprietor of the said nursing home (OP) in lieu of admitting patients").
The patient must be transferred to an appropriate facility at the earliest when indicated. (In this case, one of the allegations was that, when the patient suffered post-surgery complications and was critical, the gynecologist (OP) "did not bother to take initiative to get himself involved in transferring the case" to another nursing home).
Meet, communicate, and counsel the relatives/attendants of a critical patient compassionately.
The Supreme Court has suggested that Alternative Disputes Redressal (ADR) mechanism,(arbitration/conciliation/mediation) must be availed more frequently and "video conferencing facility for examining expert witnesses wherever necessary" must be used to facilitate speedy resolution of disputes in consumer courts.
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Importance of 'Bed-Head Ticket' in court
September 2009, 2(9):108-109
Hospitals and Nursing homes must ensure that entries are made in the 'Bed Head Ticket' with utmost care. The potential for mistakes is very high in this case, as it is one of those documents that has many authors and entries are made at regular intervals.
Before admitting a patient, hospitals and nursing homes must ensure that: Competent doctors who can manage the patient are available and the necessary infrastructure is working satisfactorily. A patient can be admitted in the absence of the aforesaid only in an emergency or for bonafide reasons. In such cases, the reasons for admitting must be specifically recorded, and at the first opportunity, the patient must be transferred to an appropriate facility. (In the present case, the fact that there were riots and curfew in the city when the patient was admitted was taken into consideration by the court).
In case of inability to attend to an emergency patient, the reasons for the same must be specifically recorded in the patient's medical records.
Referring a patient to an appropriate facility, when indicated, must not be delayed.
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MEDICOLEGAL REPORT
Supreme Court rules in favour of doctors - liberalises norms for taking consent of patients
April 2008, 1(4):44-0
Do not take consent from relatives or attendants except in emergencies or incompetent patients.
Discuss and explain the patients the possibility of additional problems which may come to light during a procedure when the patient is unconscious or otherwise unable to make a decision.
Take consent to treat any problems that may arise and ascertain whether there are any procedures to which the patient would object or prefer to give further thought before you proceed.
Do not exceed the procedure to which consent has been given no matter how strong the temptation is.
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CASES
Fabricating
vis-a-vis
correcting entries in medical records
January 2012, 5(1):10-11
Correcting medical records is permissible, but fabricating or manipulating is both illegal and unethical. Encircling the wrong entry and writing the correct one besides it is better than erasing or putting white ink over the wrong portion. (In this case the court held the gynecologist (OP) negligent for not attending to the patient who was critical, by relying on an entry in the patient's medical records, wherein time of examination, which was shown as 1:45 a.m. was corrected and subsequently written as 1:40 a.m. Even as the gynecologist (OP) sought to portray this as a genuine correction, the court held it as fabrication).
In case the patient / relatives / attendants take away the medical records of the patient forcefully or otherwise or try to mutilate them, lodging a proper written complaint with the police should be the first mandatory step.
Hospitals and nursing homes must ensure that the vitals are checked at regular intervals and duly recorded. If the same are abnormal, checking must be done at shorter intervals.
In all cases of unnatural death, the dead body must be referred for postmortem.
Hospitals and nursing homes must ensure that suitable specialists are available for consultation as and when indicated. In case of unavailability the patient must be referred to a higher center.
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Statutory procedural compliance by Hospitals/nursing homes: Stricter days ahead
November 2012, 5(11):169-170
Hospitals and nursing homes must ensure that they are duly registered with the local authorities and that such registration is renewed at the requisite interval. With 'The Clinical Establishment Act' about to come in force, failure to comply with the procedural requirements will result in grave consequences. (In this case, the patient alleged that the nursing home (OP) was not registered as required under law. The nursing home (OP) pointed that it was duly registered, but the certificate which has to be renewed every year was not renewed at that point of time i.e., when the patient was admitted but renewed subsequently.)
In case a doctor has to leave a patient midway, it must only be for bonafide reasons. The doctor must, before leaving, ensure that the patient is under the care of another duly qualified and experienced doctor. This precaution is all the more important in case of gynecologists who have been consulted during the ante-natal period by the patient but are unable to attend delivery and other emergency patients where the treatment has already commenced by the doctor who has to leave midway.
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MEDICOLEGAL REPORT
Obligation to provide special care and privileges to terminally ill patients
August 2009, 2(8):91-91
The patient as well as relatives and friends of terminally ill patients need special care, and at times, even some privileges like permission to stay at the patients' bedside beyond the permitted period, etc.
In case of a patient's death in the absence of relatives/attendants, special efforts must be made to inform the near relatives at the earliest possible moment.
Not providing a female 'ayah' (ward assistant) to a female patient is negligence. Hospitals and nursing homes must ensure that there are adequate numbers of nurses and ward assistants, both male and female, available round the clock.
Patients admitted without paying any fees or on humanitarian grounds are also entitled for equal care and attention.
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Consumer and criminal courts bound to take appropriate medical opinion before issuing notice to doctors - Supreme Court
February 2009, 2(2):13-15
"Every doctor should, for his own interest, carefully read the Code of Medical Ethics which is part of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 issued by the Medical Council of India under Section 20A read with Section 3(m) of the Indian Medical Council Act. 1956."
"Life is surely more important than side effects."
"Current practices, infrastructure, paramedical and other staff, hygiene, and sterility should be observed strictly."
"No prescription should ordinarily be given without actual examination."
"The tendency to give prescription over the telephone, except in an acute emergency, should be avoided."
"A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary."
"A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient."
"An expert (proper consultant) should be consulted in case of any doubt."
"Full record of the diagnosis, treatment, etc. should be maintained."
Instances of negligence
per se
:
"Removal of the wrong limb.
Performance of an operation on the wrong patient.
Giving injection of a drug to which the patient is allergic without looking into the out-patient card containing the warning.
Use of wrong gas during the course of an anesthetic, etc."
Criminal liability will be attracted against the erring doctors if he/she:
"Leaves a surgical gauze inside the patient after an operation.
Operates on the wrong part of the body.
Removes an organ for illegitimate trade."
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