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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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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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CASES
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
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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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MEDICOLEGAL REPORT
Provisional diagnosis and further investigations
September 2008, 1(9):128-129
In cases where some further investigation is advised to confirm a diagnosis, it is advisable to refer and record the initial diagnosis as a 'provisional diagnosis'. (In the instant case, the cardiologist (OP 2) would have been legally more comfortable if he had termed his diagnosis of sinus node dysfunction as a provisional diagnosis in the absence of a 2D Echo report which was advised by him but not done by the patient).
Greater care must be taken in revising an earlier diagnosis. It is advisable to briefly record the reason/s for revising a diagnosis in the patient's medical records.
Hospital records must be kept safe and secure for a period of three years. Courts acknowledge their correctness in the absence of any evidence to the contrary.
Patient, especially serious ones, who seek premature discharge must be made to sign a 'Discharge against Medical Advice' form and appropriate entries must be made in the medical records also.
Patients' refusal to conduct any investigation that is advised, must be promptly recorded.
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'Nil-by-mouth' - Precautions to be taken
August 2009, 2(8):92-93
In procedures/surgeries which require that the patient should be empty stomach -
Inform the patient/attendants/nurses/RMO's that the patient has to be empty stomach for the requisite period.
It is advisable that in cases where fasting is longer or where the consequences of not fasting are serious, hospitalizing the patient can be considered.
Strictly ensure that the patient is empty stomach before starting the procedure/surgery. If you have even an iota of doubt or are not convinced that the patient is empty stomach, it is advisable to reschedule the procedure/surgery for another day.
Before starting the procedure/surgery, take written endorsement from the patient that he/she was empty stomach for the requisite period as advised.
Consent form in such procedures/surgeries must specifically record that the patient has been specifically informed to remain empty stomach for the requisite period.
Do not pressurize a nervous or uneasy patient to undergo a procedure quickly. In procedures like MRI, the presence of the patients relative or attendant near the patient can be permitted as it will be comforting for the patient. Explaining, cajoling or at times even postponing the procedure is advisable.
Take consent for all types of anesthesia even if it may be local or innocuous.
Doctors/surgeons/anesthetists must accompany serious patients in the ambulance during transfers when indicated.
Instances of negligence by the patient or non-compliance of medical advice must be duly recorded. These are known in law as 'contributory negligence' and they may minimise or completely absolve the doctor from the legal consequences that follow a medical mishap.
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Assuring patient that he/she will be treated by a particular doctor
May 2008, 1(5):70-71
No assurance must be given to a patient that he/she would receive treatment, exclusively from a particular doctor if it is not possible to do so.
Hospitals/Nursing homes must clearly mention their arrangements with consultants in the admission form. It must be specifically mentioned to IPD patients that round-the-clock observation and treatment will be provided by junior doctors/RMOs.
Any undue interference in treatment from the patient/attendant/relatives must be politely refused. In case it persists, the doctor is competent to withdraw from the patient's case after giving proper notice and time to make alternative arrangements.
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Casual/unnecessary notings, code words or unfamiliar/unknown short-forms in medical records
January 2009, 2(1):3-3
Prescriptions, referral notes, professional communications, and medical records, must strictly record whatever is necessary and nothing more as any such noting has the potential of being distorted or misinterpreted in courts. Remember law is a slave of evidence and a document is the best evidence. (In the instant case the court drew adverse inference from the request made by the gynecologist (OP) to the hospital where the patient was referred to charge a fixed sum.)
Avoid writing anything in codes or unfamiliar/unknown short-forms on prescriptions, referral notes, professional communications, and medical records.
Personal communication to other doctors/hospitals must never be sent with the patient.
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Is it legally binding to visit a patient at home?
August 2009, 2(8):94-95
Doctors must, in suitable cases, try to visit immobile and serious patients at home when called. The question as to whether visiting patients at home is mandatory, has not been answered conclusively by the Indian courts. But it would certainly depend upon the following:
The practice area of the doctor-General practitioners and gynecologists vis-à-vis other doctors. Here the obligation to visit may be more or at times even mandatory.
The condition of the patient-very old or immobile.
The peculiar circumstances that may have arisen-cardiac arrest or sudden unconsciousness.
Excessive prescription or prescribing many drugs without any justification is negligence.
Prescribing a host of antibiotics and other drugs on a presumptive basis, without zeroing on a diagnosis could be interpreted as negligence.
Prescription notes must at least record the medical history, vital signs, clinical observations, and the treatment. They must also record the diagnosis, provisional or final, if one has been arrived at by that time.
In appropriate cases, treatment/surgery/procedure must be started only after conducting the necessary investigations.
Medical records must be written contemporaneously,
i.e
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Patently erroneous diagnosis is negligence.
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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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Leaving a dying patient for another emergency
May 2008, 1(5):60-61
Attending physician/consultant can leave a dying/serious patient only if it is absolutely necessary and his/her absence at such a crucial junction can be justified.
All efforts must be made till the last moment to save the patient.
Take extra caution while changing medicine, especially regarding side effects.
Personal and joint consultation of all the consultants treating a patient is advisable rather than referring to each other's notes in medical records.
Death certificates in allopathic hospitals/nursing homes must be issued by allopathic doctors only.
ICU must be monitored by senior doctors and under no condition by non-allopaths.
Consultants must visit their patients at regular intervals and also when the condition of a patient is serious or worsening.
In case of diagnosis of a notified disease or death of a patient due to a notified disease, immediately inform the appropriate authorities in writing, duly acknowledged.
In cases where medicolegal problem is foreseen, it is advisable to send the dead body for postmortem rather than not sending it.
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CASES
Escape of an IPD patient - Protocol to indemnify the hospital/nursing home from legal consequences
May 2010, 3(5):53-54
In case an IPD patient leaves or escapes from the hospital/nursing home without being duly discharged -
Forthwith give a written intimation to the nearest police station about the same and take proper acknowledgment with time and date.
Next, send a letter to the patient by 'registered post acknowledgment due' at the address written in the admission form clearly recording that the patient has left without being discharged.
Duly preserve the police and postal acknowledgment with the patient's medical records.
This protocol must be followed even in case of mentally unstable patient who may have simply escaped and the relatives/attendants/friends may also be searching for the patient.
In case any untoward incident happens with the patient or the patient commits any illegal act after escaping, the aforementioned protocol will help in protecting the hospital and the doctors against the legal consequences arising from the same.
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MEDICOLEGAL REPORT
Disturbing Trend - Allegations of negligence for withholding fees/charges
March 2009, 2(3):27-28
Legally, negligence or allegations of negligence cannot be a ground to withhold payment of fees to doctors/hospitals. A very disturbing tendency is marked among patients nowadays, especially when treatment has failed or resulted in complications. An allegation of negligence is immediately made against the doctor/hospital and then reduction in fees is asked or the patient simply refuses to pay fees. Generally, the doctor/hospital oblige by not insisting on fees. Please remember the remedy for negligence is compensation or damages and the same can be awarded only by courts. Any condonation of fees by doctors/hospitals in such a situation sets wrong precedents and its long-term effects are detrimental to the medical fraternity.
Certain procedures like lumbar puncture require delicate handling of the patient and must be done by experienced doctors only. Extra caution is required.
Copies of medical records must be given to the patient or his/her authorized representative within 72 hours of any such request.
Never start, end, or change a treatment simply because the patient desires so. The time, type, and other modalities of treatment are strictly within the prerogative of the doctor.
The responsibility to take care of the patients is more in tertiary care/super speciality hospitals vis-à-vis ordinary hospitals.
Seniors doctors must keep complete check on juniors working under them. Senior doctors are liable for negligence for the negligence of their juniors even though they may be completely uninvolved in the alleged act of negligence. (Legally known as vicarious liability)
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Patient's right over organs/cysts/tumors/aspirated fluids removed from his/her body
June 2008, 1(6):78-0
In case any organs/cysts/tumors/aspirated fluids, especially a healthy organ, is removed from the patient's body, it is advisable to show the same to the patient/attendants/relatives/friends and take their acknowledgment and then send the same for histopathological examination. Preserve this acknowledgment as well as pathological report of the organ/tissue in the medical records of the patient.
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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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Protocols for removing drains/catheter/Ryles Tube/traction/I.V. line
April 2008, 1(4):55-0
Hospitals/Nursing Homes must develop and implement proper protocols whereby -
drains/catheter/Ryles Tube/traction/I.V. line must be removed, only after written directions from the attending doctor and
the doctor/nurse after removing the aforesaid must duly and promptly record the same in the patients' case papers.
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CASES
"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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MEDICOLEGAL REPORT
Liability under Consumer Protection Act for refusing to treat the patient at the outset
April 2008, 1(4):46-0
All doctors are duty bound to treat and Hospitals/Nursing Homes duty bound to admit accident/serious patients.
In case requisite facility is not available whatever help is possible, must be extended and appropriate arrangements must be made to transfer patient to a proper facility/hospital.
Hospitals/Nursing Homes must not discontinue treatment of accident/serious patients who have been admitted until they are stabilized, least of all for failure to pay money.
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Precautions while handing over scans/films/x-rays to patients/relatives/attendants
May 2008, 1(5):64-65
Whenever scans/films/x-rays are handed over to the patient/relative/attendant, the date of giving and receiving back any of these must be duly recorded. Before handing over, a proper receipt from the person who is receiving must be taken.
Reference letters given for consultations/second opinion must be duly recorded in the patient's medical record.
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Medical negligence - Simultaneous jurisdiction of consumer and criminal courts
December 2008, 1(12):174-174
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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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Correcting/deleting entries in medical records
April 2008, 1(4):53-0
Do not erase or put white ink on entries made in medical records. Instead, encircle the wrong entry and write the correct entry besides it.
Hospitals/Nursing Homes must formulate and implement appropriate protocols, to ensure that only those doctors and nurses who are duly authorized and fully conversant with the patient's case, make entries in medical records.
Promptly take proactive steps to correct post procedure complaints/complications and duly record both - the complaint/complication and the steps taken.
In case of complications, transfer patient to a hospital with better facilities, at the earliest.
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Procedures/surgeries requiring requisite experience of the doctor
May 2008, 1(5):68-69
It is advisable that certain procedures/surgeries which require greater experience must be taken up by only those doctors who have the requisite experience.
All those specialists who are normally required for a particular surgery/procedure must remain present in the operation theater.
Hospitals/Nursing homes must have a comprehensive list of specialists with their contact numbers, time and days of non-availability, whose presence may be required in case of rare complications depending upon the type of procedures/surgeries that are undertaken. This list must be regularly updated.
Known risk factors must be disclosed to the patient and duly recorded in the consent form.
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CASES
Directing patient to a particular chemist/dealer
December 2010, 3(12):161-162
Avoid asking a patient to purchase medicines, disposables, implants, etc. from a particular chemist / dealer only. (In this case, the patient had made allegations that the knee implant was not proper and that he was made to purchase it from a particular dealer by the orthopedic surgeon (OP). The orthopedic surgeon (OP) refuted the said allegation by pointing that only one dealer in the town was having the recommended implant.)
In legal proceedings, doctors must necessarily furnish in defense details of their credentials and experience in written defense. Indian courts draw favorable inference in favor of the doctor from the aforesaid.
Record clinical history of the patient accurately. Specifically record all the deformities in detail that may have any bearing on the treatment.
Proper care must be taken while giving postoperative instructions. Explain in detail to the patient / relatives / friends /attendants and duly record the same in the medical records / prescriptions / discharge card.
Requisite preoperative investigations must be performed before each and every surgery / procedure and results thereof must be duly recorded.
Post surgery / procedure care and supervision is the responsibility of the surgeon / doctor who has performed the same.
Avoid passing any adverse comments on another doctor / hospital or on the treatment given to the patient unless it is absolutely necessary.
Failure of the patient to follow any medical advice must be specifically recorded.
Take consent of an oriented patient before performing any surgery / procedure.
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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
Referring patient to a facility/hospital owned by the referring doctor
November 2008, 1(11):154-155
In case the patient is admitted or referred to a facility or hospital where the referring consultant has any financial or ownership interest, extra caution is required as allegations of referring to a wrong facilty for self interest can easily gain credence. There must be absolutely no pressure or coercion on the patient to get himself or herself admitted to that particular hospital or facility.
In case a patient has to be admitted or referred to a hospital, all the hospitals having the requisite infrastructure must be advised and the final choice must be left to the patient. Duly record this fact enumerating all the hospitals that have been advised and the choice of the patient.
Surgeons can leave the patient post-surgery only after the patient has clinically stabilized.
Inordinate delay on the part of surgeons in attending to post-surgery complications is negligence.
Shifting patients to ICU must not be delayed.
It is advisable to defer an elective procedure/surgery rather than performing it, if there is even an iota of doubt on the fitness of the patient. Procuring a fitness certificate from the physician must be a mandatory exercise in all such cases.
Hospitals and nursing homes undertaking to treat a patient or conduct any surgery must anticipate all future complications and keep relevant consultants ready.
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