The medical law reporter for Indian Doctors>
Institute of Medicine & Law
Click here to view April 2016 issue as eBook
Export selected to
Access statistics : Table of Contents
2010| February | Volume 3 | Issue 2
March 20, 2010
Most popular articles
Most cited articles
Show all abstracts
Show selected abstracts
Export selected to
Withholding disclosures from the patient on the request of relatives/friends
February 2010, 3(2):13-15
Doctors can withhold medical information from the patient, amongst others, for therapeutic purposes also. There may be instances where the patient's friends or relatives make a request not to disclose some information which may prove devastating for the patient. In all such cases, the decision to withhold any information from the patient must be made by the doctor keeping in mind the patient's welfare. Once it is decided that certain information must be withheld from the patient, the following is advisable:
Take the opinion of the other doctors involved with the patient and/or your peers. If they agree, request them to make a suitable endorsement in the patient's medical records recording their agreement.
If any such request has come from the patient's relatives or friends, insist on a written request which must be duly preserved in the patient's medical records. More credence must be given to any such request made by spouses, children or parents.
Merely because a request has been made by the patient's relatives or friends, a doctor is not bound to follow it. The right to take the decision as well as the consequences for any faulty decision will squarely lie on the doctor and the fact that such a request was made by the patient's relatives or friends is legally inconsequential.
In case the request for withholding information is the doctor's decision, it is advisable or rather mandatory that the patient's relatives or friends are explained the reasons for withholding the information. Take suitable written endorsement from them of having received the actual information.
Please remember, that in this age of informed consent an adult, oriented patient is entitled as of right to get all medical information, even if the information may actually harm him or her. Law also bestows the privilege of withholding any information for therapeutic purpose by a doctor, but this exception must be scarcely used and solely for the patient's benefit.
(In the present case, it was the hospital's (OP) case that the patient was diagnosed as having cancer but the said information was withheld from him and was not recorded in the discharge card on the specific request of the patient's wife who was apprehensive that the patient was likely to read the same and would become mentally disturbed.)
A surgeon can take appropriate decisions after opening the patient, which may not be in line with what was agreed or recommended. But it is equally important that such a situation ought to be incapable of being anticipated when the patient's consent was taken.
In case of deviation from the agreed or advised surgery/procedure it is mandatory to record the reasons for any such deviation in the operation notes.
Record specifically in intra-operative notes, any injury that may have been caused to the internal organs/tissues of the patient.
Specifically inform the patient in case any part or organ of the body is removed.
Complicated surgeries/procedures must be undertaken by doctors who have the requisite experience and skills.
Specifically record the failure of patient to come for follow-up when advised or as and when medical advice is neglected.
Duly record in the consent form the fact that the patient has given consent after consulting the family physician or a relative/friend who is a doctor or that some doctor has conferred with the surgeon before the patient had given consent, especially in risky procedures/surgeries. Specifically record the name of the other doctor.
Post-procedure/surgery complications - Hospital's obligation to keep substitutes ready
February 2010, 3(2):21-22
Hospitals and nursing homes, especially those offering specialized procedures/treatments like IVF (in-vitro fertilization) procedure, must always anticipate and make requisite alternative arrangements in terms of both the doctors and the equipments, for emergencies and complications, before starting any such procedure/treatment. Inability to respond appropriately during emergencies and complications is construed as negligence of the hospital.
It is advisable to postpone an elective procedure/surgery if the consulting doctor is unavailable during the post-procedure/surgery period.
In all cases where the post-procedure/surgery care is to be taken by a doctor other than the one who has performed the procedure/surgery, the patient must be duly informed about the said fact during pre-procedure/surgery consultations and this fact must be specifically recorded in the patient's consent form.
Hospitals and nursing homes could be held negligent for - delay in providing blood to a patient; inability to provide oxygen to a patient; poor sanitary conditions; or admitting a patient knowing well that suitable doctors required for treating the patient are not available.
Communicating with patients of medical mishaps - Precautions
February 2010, 3(2):16-17
Take utmost care in communication with patients who have suffered in a medical mishap or with whom you anticipate legal trouble. Try to minimize or avoid any written communication with them unless it is absolutely necessary. In case of any doubt take proper legal advice. (In the present case, the manufacturers of the allegedly defective interlocking nail had replied to the patient appropriately by using legal terms like 'without prejudice'. These words proved helpful in their defense in the court.) ,
Use equipment, implants, drugs, and consumables of standard quality only.
Caution and contemplation in selecting a hospital/doctor to transfer/refer a patient
February 2010, 3(2):18-19
Choosing a doctor/hospital to refer/transfer a patient who has developed some complications during the course of treatment needs extra deliberation and caution. It is advisable to first consult the doctor/hospital where the patient is being referred/transferred. The referral/transfer note must specifically record the symptoms, suspicion/s, diagnosis, etc. and a copy thereof bearing acknowledgment of the patient must be retained in the patient's medical records. (In the present case, the evidence given by the surgeon to whom the patient was referred by the gynecologist (OP1) was ambiguous and his statements were referred by both the patient and the doctors in support of their case.)
Preserve operation and anesthesia notes in the medical records of the patient and produce them in the court at the appropriate moment and under suitable legal advice.
Apportioning legal liability for acting upon a wrong report
February 2010, 3(2):20-20
In case a consulting doctor acts properly on an investigation report, which is later discovered as incorrect, then the consulting doctor will not be held negligent for acting thereupon. Exception to this legal position will be situations where the parameters reported ought to have inevitably given rise to suspicion on the correctness of the report but no efforts were made by the consulting doctor to repeat investigations. But the investigating facility/doctor will obviously be held negligent.
Patient's inability to pay and delay in giving/starting treatment
February 2010, 3(2):23-23
Refusing to admit a non-emergency patient for inability to pay adequate deposit is not negligence. But delaying treatment after admitting for monetary reasons could be construed as negligence.
It is advisable that sufficient deposit is taken before admitting a patient.
Hospitals/nursing homes must specifically record the time of admitting a patient and the time when treatment was started.
ICUs must always have lifesaving drugs adequately stocked.
In case of critical patients, lifesaving drugs and procedures must be started without waiting for the patients to bring medicines. Instead, replacement of medicines should be done once the emergency ceases to exist.
Is second opinion of another doctor mandatory in cases pending before the consumer courts?
February 2010, 3(2):24-24
It is now mandatory for the consumer courts and criminal courts to first refer every case of medical negligence to a committee of doctors for expert opinion and only after that committee comes to a prima facie opinion that there has been negligence, can these courts issue notice to a doctor/hospital. But this dictum of law is not applicable to pending cases.
Copyright and Disclaimer
© 2010 Medical Law Cases - For Doctors | A journal by
Institute of Medicine & Law
and Wolters Kluwer -
Online since 15