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Institute of Medicine & Law
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2010| April | Volume 3 | Issue 4
April 30, 2010
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Residual legal obligations and duties of a doctor/hospital after patient's death
April 2010, 3(4):39-40
The legal liability of a doctor/hospital/nursing home does not end with the death of a patient but continues even thereafter. Providing proper medical records and investigation reports to friends/attendants/relatives, issuing death certificate or handing over the dead body for postmortem, raising a proper bill of the treatment, preserving the medical records of a deceased patient for a period of three years are instances of the duties and responsibilities of the doctor that continue vis-ΰ-vis the patient even after the patient's death. (In the present case, the court held the nursing home (OP1) negligent for providing CT scan report of another patient to the patient's son after the death of the patient.)
Hospitals and nursing homes must exercise proper discretion in admitting every patient, especially critical ones. If there is even an iota of doubt that the requisite infrastructure or proper consultants would not be available and that too in time, it is advisable to refuse admission rather than admitting a patient. Inability to provide due care to a patient after admitting is negligence. Any defense to the effect that the patient was admitted because of referral from another doctor/hospital will not stand legal scrutiny. The admitting hospital has to be confident that the requisite facilities are in place to manage the patient.
In case there is insistence from the patient's side to admit the patient in spite of being informed about deficiencies in the infrastructure or services available in the hospital or nursing home, then it is advisable to take a written undertaking from the patient of having received the said information and yet choosing to get admitted. But in critical cases or the ones that require specialized treatment, the patient must be outright refused admission even if he or she is ready to give the said undertaking. Emergency would be an exception to the aforesaid.
After admitting a critical patient, proper consultant/s must immediately check the patient physically and start treatment. Due care must be taken in specifically recording the time of admission and when the consultant/s first examined the patient after admission. The recent trend amongst patients is to allege that there was unjustified delay in attending to the patient after admission.
Original referral letter/note must be taken by the admitting hospital and duly preserved in the medical records of the patient.
Proper protocols must be formulated and followed to ensure that there is no mixing up of investigation reports as it is negligence per se.
Requisite investigations must be conducted at proper time.
Apologizing for avoiding further problems - Fatal consequences
April 2010, 3(4):48-49
Apologizing for the sake of apologizing or to avoid future trouble is not advisable. An apology is construed as an admission of guilt and works at a disadvantage in courts. Proper legal advice must be taken before admitting any guilt or apologizing in writing to the patient.
Discarding any suggestion regarding treatment made by a patient even though he or she may be a doctor is not negligence. In such cases, it is advisable to briefly record the patient's suggestions, the reasons for discarding the same and the reasons for following the other line of treatment.
The discretion to choose a line of treatment from amongst many lies with the doctor.
Failure to follow medical advice or to keep appointments by the patient must be duly recorded.
Registration for post-transplantation treatment under Transplantation of Human Organ Act, 1994
April 2010, 3(4):43-45
Hospitals and nursing homes providing post-transplant care are not required to be registered under The Transplantation of Human Organs Act, 1994. Only those hospitals and nursing homes where organ/kidney transplant surgeries are performed must be duly registered under section 14 of the said Act.
The surgeon/interventionist who has performed the surgery/procedure must:
Attend the patient for post-surgery/procedure complications during hospitalization as well as after discharge.
Attend the patient who is re-hospitalized for further treatment of complications arising from the earlier surgery/procedure.
Exception to the aforesaid would be situations where before surgery/procedure the patient was properly informed and had duly consented that post surgery/procedure care will be undertaken by someone else or where an unforeseen emergency has arisen forcing the surgeon/interventionist from attending to the patient. In the latter case, the patient must be kept in the care of another equally competent doctor, the patient's care must be resumed at the earliest and the reason/s for nonattendance must be duly recorded in the patient's medical records.
It is advisable, although not mandatory that in the Bed Head ticket of an IPD patient, 'No complaint' or 'No new complaint', if it is so, be recorded at least once every day.
Do not discharge a patient who needs further medical supervision.
Investigations must be repeated at the indicated intervals.
Advice hospitalization or rehospitalization at the appropriate time.
The required and appropriate medicines must be introduced/continued/discontinued/altered at the appropriate time; must be administered by the route indicated, that is, parenterally/intravenously/orally; in correct and optimum dosage and on proper time. ,
Ensure that there are no incomplete reports or notings.
Duly record the date as well as time of collecting the samples that are sent for investigation.
All post-discharge advices and precautions must be written on the discharge card/summary/ticket.
Constantly review the line of treatment, especially when there are complications or the results are not on the expected lines.
Ignoring or not responding appropriately to any abnormal finding could be construed as negligence.
Specialization and competency before accepting a patient
April 2010, 3(4):50-51
Performing or attempting to perform any treatment/procedure without having the legally prescribed qualifications or specialization is negligence per se. With the growth of specialities and super specialities it has become imperative for every doctor to know his/her limitations and to properly analyze the ailment/s before accepting the patient. hospitals and nursing homes must be doubly sure before admitting a patient that the requisite infrastructure and consultants are readily available to manage the patient.
An adverse opinion on the treatment or diagnosis of another doctor must always be given when doubly sure and never for the sake of rivalry.
Poor patient, expensive tests - What next?
April 2010, 3(4):46-47
In case the investigation/s is/are expensive and the patient refuses to perform them, especially for monetary reasons, proceeding with the procedure/treatment is a risky proposition and requires greater care and contemplation. In such cases the following is advisable:
Advise the investigation/s in writing.
Take in writing the patient's refusal to perform the same, preferably with the reasons.
Do not proceed with the procedure/treatment if the investigation refused is absolutely mandatory. Referring the patient to a government/charitable hospital for investigations can be considered. Alternatively, the patient must be transferred to a government/charitable hospital. Proceeding with the procedure/treatment without performing and perusing a mandatory investigation report could be construed as negligence.
In other cases where you decide to proceed, take a high risk consent from the patient and take second opinion from a peer before proceeding. Compulsion for proceeding with the procedure/treatment must also be recorded.
Please note that the law on this aspect is not yet settled.
Hospitals or nursing homes not charging fees from a particular patient but doing so from others are amenable to the jurisdiction of the consumer courts even with regard to the free patient.
Wasting time in taking remedial action after a medical mishap - Adverse inference drawn by Supreme Court
April 2010, 3(4):41-42
In case any mistake, mishap, accident or misdemeanor is pointed by the patient, rather than waiting for a written complaint or wasting time in conducting official enquiries and making records, all efforts must be made to take remedial action at the earliest. Courts draw adverse inference in case of delays.
Hospitals and nursing homes must have appropriate protocols and designated doctors to hear and act upon grievances and complaints made by the patient.
The patient's contribution in aggravating the medical condition or the background of the illness or the patient's history or will become irrelevant in cases where negligence is grave and patent. (In the present case, one of the defenses taken by the hospital was that although they had transfused mismatched blood, yet it was the maltreatment given by the patient's husband that caused her death but the court held that in the present case this was irrelevant.)
Transfusing mismatched blood is per se negligence.
In case a patient seeks transfer because of inability to afford treatment, the said fact must be duly recorded in the medical records.
Incomplete treatment and negligence
April 2010, 3(4):52-52
Not completing a treatment is negligence per se. Treatment can be discontinued midway by a doctor only on sound medical grounds, and the reason for doing so must be specifically recorded.
Specifically inform the patient and record in the consent if the treatment could take a very long time or where the chances of success are slim. This protocol is all the more necessary in old or immuno-compromised patients.
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