Medical Law Cases - For Doctors

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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.)

Law in India is well settled Ϳ failure of sterlization is not per se negligence, but doctors / hospitals do not have any such legal protection in case of failure of Medical Termination of Pregnancy (MTP).
In case two distinct procedures / surgeries (for e.g., sterlization and MTP) have to be performed together, it is advisable to take a separate consent for each.
Specifically record the length of the pregnancy in case of Medical Termination of Pregnancy (MTP).
Due care and caution is required in taking consent from illiterate or less literate patients. Although the patient's thumb impression must be taken, it advisable to take the signature of two non-related, literate witnesses also. (In this case, the clinic (OP) had taken the signature of the mother-in-law of the illiterate patient, who was also illiterate. Illiteracy was specifically raised and pleaded in support of her allegations by the patient in the court)
Consent must be preceded by proper disclosures.
Advice for follow-up must be specifically given, that too in writing and failure of the patient to follow advice must also be recorded.

In case of patients who have suffered complications or have not got the desired results from treatment, refunding money on compassionate grounds is now posing problems to hospitals / doctors. Any request from the patient for refund or financial help must be considered only after the request is made in writing and the reasons thereof are clearly recorded. (In this case, the patient who expired was given a concession Rs.42,900/- in the hospital bill and after two months even financial help of Rs. 1,15,000/- was given to his wife by cheque on humanitarian grounds by the cardiologist (OP). However, this was portrayed as an admission of medical negligence in the court. Fortunately, the cardiologist (OP) had preserved the letter of the patient's wife seeking financial help, wherein, no allegations of negligence were made and the same was produced before the court).
It is advisable that in procedures / surgeries where re-exploration may be required, a composite consent be taken for both, in advance.
Ensure that appropriate medical terms are used in writing medical records. (In this case, the patient alleged that re-operation was done without consent, whereas, the cardiologist (OP) had stated that it was merely re-exploration. In support of this allegation, the patient pointed to the hospital records, wherein, it was recorded that the patient had undergone 're-operation').
Medical records must be written regularly and only by the person/s responsible to do so. Avoid the practice of 'completing' medical records in one sitting. It is patently illegal and also counterproductive.
After an emergency is over, medical records must be checked, especially for small inadvertent errors like not writing the surgeon's name.
Avoid discussing about the patient before the patient or their relatives / friends. Such conversation has the potential of being misinterpreted by them. (In this case, there was a very specific allegation that the patient had overheard doctors talking together that the patient's reports were wrong. The patient had passed this information to his wife and perhaps this overhearing was the seed of discontent and distrust).
Not permitting another doctor to visit the patient may not be completely illegal. You can certainly stop another doctor from interfering with the patient's treatment, but due courtesy must always be extended.
Hospitals and nursing homes must ensure that proper protocols are in place so that in serious, critical, and high-risk patients any deterioration of the patient's condition is immediately informed to the attending consultant; the attending consultant on being informed supervises and gives the necessary instructions to manage the emergency; and in grave emergencies the attending consultant personally attends the patient and takes charge of the situation at the earliest. Duly record the aforesaid.
In serious, complicated or new surgeries / procedures it is necessary to get an elaborate consent, commonly known as 'high-risk consent form,' with two independent witnesses.
It is advisable that during the first consultation or during admission, the patient is asked to write his / her history and specific complaint in a suitable form provided for the said purpose.

A patient who is admitted can leave the hospital only in three situations - on being discharged by the doctor in-charge of the patient, discharge against medical advice and death. There is no fourth situation. Confusion prevails about the status of patients who get discharged on their own insistence i.e. without medical advice. All such cases must be treated as "discharge against medical advice" as an affirmative and clear advice for discharge was not given by the doctor in-charge. In such cases, patient must be explained the consequences emanating from such discharge. If the patient still insists on discharge, the patient must be discharged only after taking a written declaration stating that he/she has taken discharge against medical advice and will be responsible for the consequences arising there from.

Any delay or failure in referring a patient to an appropriate specialist or facility, if indicated, could be held as negligence.
A surgery/procedure can be postponed or stopped midway without completing for any appropriate reason. In such cases, the surgery/procedure notes must clearly record the reasons for taking such a decision. (In this case, the surgeon (OP) had opened the patient to remove his gall bladder but closed without removing the same as he observed malignancy. The court observed that this decision was appropriate.)
Doctors/hospitals (except charitable and government hospitals) cannot take defense in a consumer court that free medical service was provided to a particular patient and hence the patient is not a "consumer". All such doctors/hospitals are service providers and amenable to the jurisdiction of the consumer courts even in case of patients who are not charged.

In case of waiting period for a particular surgery / procedure the following is advisable:
1. The fact that there is a waiting period must be specifically disclosed to the patient in the first instance and the patient must be given the option of approaching another hospital. Both these facts must be duly recorded and written endorsement of the patient having received this information must be taken.
2. When taking advance deposits in such cases, it must be recorded that there is a waiting period and the deposit has been taken only to ensure that the patient is in the queue.
3. On the receipt of the advance deposit or by any other means of communication, it must be specifically mentioned that the patient can take refund of the deposit at any time before the date for the procedure / surgery is fixed.
4. Promptly reply to all communications from the patient enquiring about the delay.
5. It is advisable to have a comprehensive list of patients who are in queue for a particular surgery / procedure. This list must be duly preserved. (In this case, the court drew adverse inference against the Institute (OP), as it had failed to produce a list of patients who were in queue for bypass surgery at that point in time and because of which purportedly the patient's surgery was delayed even after accepting an advance deposit).
Not fixing an early date for a surgery / procedure, especially when the patient is serious or postponing the same without any valid reasons is negligence per se. This misdemeanor becomes more serious if the requisite advance is received from the patient for the scheduled procedure / surgery.
It is advisable to take deposits in advance for treatments / procedures / surgeries that are expensive. The following precautions are advisable:
1. Whenever a patient is advised a procedure / surgery and simultaneously directed to make an advance deposit, duly record both. Furthermore, record that the surgery / procedure will be performed only after the complete deposit is received.
2. Any delay or refusal on the part of the patient to deposit must be promptly recorded.
3. Receiving only part-payment should be avoided.
4. In case the payment is made by cheque clearly intimate to the patient that the surgery / procedure will be performed only after realization of the cheque.
5. In case the patient indicates inability to raise the requisite advance, it is advisable to refer the patient to a government hospital at the earliest.
Schedule for follow-ups as well as compliance or non-compliance of medical advice by the patient must be duly recorded in the medical records.
Hospitals and nursing homes can recover the amount of compensation awarded by the court in cases of medical negligence from their concerned staff after conducting a proper enquiry and fixing the responsibility of the misdemeanor.

Do not withdraw life support of a patient merely because the patient's relatives, friends or attendants want to do so.
The Supreme Court has now prescribed a well-defined procedure for withdrawal of life support of only those patient's who are in a Permanent Vegetative State (PVS). The ultimate authority to authorize any such withdrawal now rests with the concerned High Court. The prescribed procedure is as follows:
1. The decision to discontinue life support can be taken either by the parents / spouse / close relatives / person or a body of persons acting as the 'next friend' of the patient / doctors attending to the patient.
2. The decision should be taken legitimately, in the best interest of the patient.
3. After taking such a decision, an application should be filed in the appropriate High Court seeking its approval.
4. Once an application is made, the Chief Justice of that High Court must immediately constitute a Bench of at least two Judges to hear the case.
5. The High Court Bench must seek the opinion of a committee of three reputed doctors to be nominated by it after consulting such medical authorities / medical practitioners, as the High Court Bench may deem fit and proper. Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician.
6. This committee of doctors must carefully examine the patient, consult the record of the patient, and take the views of the hospital staff and then submit its report to the High Court Bench.
7. Doctors must declare a patient to be hopeless only when there appears to be no reasonable possibility of any improvement by some newly discovered medical method, in the near future, keeping in mind that medical science is advancing fast.
8. Simultaneously, with appointing the committee of doctors, the High Court Bench must also issue a notice to the State Government and close relatives (parents, spouse, brothers / sisters, etc.) of the patient, and in their absence to his / her next friend, and supply a copy of the report of the doctor's committee to them, as soon as it is available.
9. After hearing them, the High Court Bench must give its verdict swiftly, assigning specific reasons for its decision.
10. The High Court Bench must pass the final order in accordance with the principle of 'best interest of the patient' and after giving due weight to the views of the near relatives and committee of doctors.
11. The High Court Bench will be the final authority to give such approvals. ,