Medical Law Cases - For Doctors

Export selected to

Endnote

Reference Manager

Procite

Medlars Format

RefWorks Format

BibTex Format

A general consent obtained at the time of admitting a patient for undergoing treatment, investigations, and surgery cannot be a substitute for a specific consent required for a surgery / procedure. Even a separate consent for a specific procedure / surgery taken at the time of admission is at times viewed suspiciously, although it may not be per se illegal. It is therefore advisable to take a separate and specific consent for surgery / procedure on a day close to the day of the surgery / procedure.
Hospitals and nursing homes must ensure that the medical records are kept in a safe and secure place, as incidents of patients stealing medical records and then making allegations of negligence are increasing. In case, it is discovered that records are missing, inform the police in writing, take acknowledgment of receipt from the police on a copy thereof, and duly preserve the same.
Confusion and mingling of patients with common names is a known cause of medical mishaps. Writing complete names, referring the patient by his / her complete name and such other simple practices, reduce the chances of such mishaps.
In case of surgeries / procedures, the Operation Theater (OT) nurse must compulsorily check whether the duly completed consent for the surgery / procedure is present in the patient's medical records or not. Devising and following such simple protocols minimizes the chances of any mistake.
It is advisable that investigations like HIV, Hepatitis, and so on, of hospitalized patients must be repeated in your laboratory / hospital rather than relying on the report of other centres.
Hospitals and nursing homes must ensure that patients whose pre-hospitalization investigation reports are required are taken from the patient and kept in the medical records of the patient.
Hospitals / doctors must ensure that access to medical records is strictly regulated and only a few are permitted access to them. Taking out original medical records of patients who have completed treatment from the storeroom must be a strict 'No'.
Ensure that after the death or discharge of the patient the medical records are completed at the earliest and then sent for storage.
Failure to produce medical records or producing medical records with missing pages is construed as deficiency of service by the courts.
Whenever a scheduled surgery / procedure is postponed, reasons thereof must be duly recorded.
Failure to perform correct and complete pre-surgical assessment of the patient by the interventionist is negligence.
OTs must be fumigated at requisite intervals.

Performing / repeating investigation is always advisable rather than not doing so. (In this case, the court rejected the patient's allegation that human leukocyte antigen (HLA) typing, was repeated unnecessarily only to extract more money. The court observed that there was 'nothing wrong' if the hospital (OP) felt that repeating the said investigation was necessary 'to be on the safer side').
Delay in performing life-saving surgeries / procedures could be negligence, although there can be no hard and fast rule. Explaining the reason for delay to the patient / attendants / relatives is a healthy exercise that is bound to reduce the chances of any misunderstanding in future. (In this case, the court held that some procedural delay in performing a complicated surgery like transplant could not be termed as medical negligence).
Hospitals conducting transplant surgeries must ensure that they have the requisite permission and have complied with all the stipulations prescribed under The Transplantation of Human Organs Act, 1994, and The Transplantation of Human Organs Rules, 1995.
Giving the patient a fair idea of the likely expenses is a healthy practice and must be followed. This practice becomes all the more necessary in surgeries / procedures involving heavy expenditure.

Performing an emergency procedure / surgery in the absence of proper indications and justifications is negligence. (In this case, the court held the orthopedic surgeon and the anesthetist (OPs) negligent for performing an emergency surgery in the middle of the night, on the day the patient was admitted, even though there was no emergency and an elective surgery would have served the purpose.)
Reason/s for performing a procedure / surgery must be specifically recorded in the pre-procedure / surgery notes and other medical records of the patient.
A doctor performing a surgery / procedure or accepting a patient knowing that the hospital / nursing home does not have the requisite facilities to manage the patient effectively is equally negligent and as liable as the hospital / nursing home.
It is advisable that only designated person/s interact with the patient / attendants / relatives, especially when the patient is critical or in the Operation Theater. It reduces the chance of faulty communication. Not answering, answering incorrectly or giving conflicting answers to the patient's attendants / relatives usually sow the seeds of discontent resulting in legal proceedings later.
Hospitals and nursing homes must ensure the presence of proper mechanism for a patient's grievance, ensure that the complaints made by the patients are heard sympathetically and appropriately, and timely action is taken thereupon.
Performing surgery / procedure in the absence of standard equipments is negligence per se.
The patient should not be assured that he or she will be managed by a particular doctor, if the same is not possible, especially in bigger institutions. The aforesaid precaution is all the more necessary in interventions. (In this case, the patient alleged that the orthopedic surgeon (OP) did not keep his promise of personally performing the surgery.)
It is incumbent on the anesthetist to personally attend and examine the patient before interventions.
Unjustified, unexplained delay in starting blood transfusion when indicated is negligence.
Inadequacy of properly trained staff in a hospital / nursing home is deficiency of service.

A patient is solely responsible for the consequences of not following medical advice. Such acts alleviate or even completely exonerate the doctor of medical negligence. But in case of hospitalized patients, the legal position is a little different. As the patient is under the care of and, to a certain extent, control and vigilance of the hospital, the hospital also becomes liable for the failure of the patient to follow medical advice. Hence, in case of hospitalized patients, the hospital/nursing home must ensure that medical advice is strictly followed by the patient. (In this case, contrary to medical advice, the patient who was hospitalized drank coconut water on the next day of surgery. The court held the hospital also negligent along with the patient and observed that its staff should not have permitted the patient to consume coconut water during her stay at the hospital.)
Discharge card/summary/note must be prepared and issued to each and every patient who is discharged even in cases where a hospitalized patient is discharged against medical advice or is forcibly taken away. A wrong notion exists amongst a section of doctors that discharge card/summary/note must be issued only in cases where it is specifically sought by the patient. In fact, discharge card/summary/note is conclusive proof of the fact that the patient has been duly discharged in both the cases - on medical advice and against medical advice.
Any threat from patient or relatives must be immediately reported to the police.
If a patient fails to pay fees, a proper acknowledgment must always be taken. In case fees is not settled within a reasonable time, the least that should be done is to send a letter by 'registered post acknowledgment due' demanding the unpaid fees. It not only helps in recovering fees but also acts as a good defense in court. This protocol is all the more necessary nowadays as the patients taking doctors to court on charges of medical negligence only to avoid payment of fees are frequently reported.
Reporting wrong blood group is per se negligence. The fact that the wrong report was never acted upon by the patient and hence has caused no harm to the patient is inconsequential in the eyes of law.
Fabricating documents is not merely illegal and unethical, but it rarely helps in a court of law. On the contrary, once the court is convinced that the records are fabricated, its sympathies lie with the patient.

In India, a doctor / hospital charging only registration fees from the patient is exempted from the consumer court. It is, therefore, important that the head under which money is charged from the patient should be appropriate. In this case, Rs. 350/- was charged from the patient, which was in all probabilities the registration fees, as in these times even cotton pads required for a surgery cannot be bought in this sum. However, as it was termed as, 'major operation fee,' the court held that the patient was a consumer. On the other hand, charging huge sums and terming it as 'registration fee' will not be helpful, as the court will, in such cases, look at the real substance rather than the name.
Entries in the medical records, especially noting the reports of investigations, must always be made at the designated spaces and not anywhere else. There have been a few reported cases where it has been found that the patient's blood group, hemoglobin (Hb), bleeding time (BT), clotting time (CT), and so on, have been noted in a corner of the file. Even in this case, the doctors (OPs) have stated in the court that, "The investigations were noted down on the back of the medical file." Fortunately, the court has not adversely commented on this wrong practice.
Hospitals and nursing homes, especially higher facilities, must have proper facilities for round-the-clock management of the patient. (In this case the court has observed that the hospital (OP) should not have admitted serious patients if their doctors were residing 15 km away.)
Getting copies of medical records is a right bestowed by law upon the patients. You can merely delay in giving the reports and this may force the patient to take recourse to other legal options to get it. (In this case, the fact that the doctors (OPs) did not give the patient's medical records and the patient had to get an order from the Judicial Magistrate was specifically mentioned in the complaint. The doctors (OPs) had to give the medical records after the order from the Judicial Magistrate and this reluctance was viewed adversely by the consumer court.)
Care and caution is required in recording and writing the date and time in the medical records. It is one of the most common mistakes and at times the consequences arising thereof cannot be defended in a court of law. (In this case, it was stated that the doctor (OP) had, "instead of putting the date as 7.5.2004 inadvertently put the date as 10.5.2004, as he was to put up the time as 10.00 p.m.")
Medical records have to be prepared contemporaneously. Writing and completing medical records in one sitting is illegal and unethical and usually does not help in a court of law. (In this case, the court held that the medical records were fabricated observing that, "all the entries appear to have been made at one and the same time," as otherwise, "the ink or the writing would not have been the same")
Communicate with the patient / relatives / attendants compassionately, especially when the patient's condition is worsening or is critical. (In this case, the patient's relatives had specifically alleged that the doctors (OPs) had spoken with them in 'harsh words' when the patient was facing respiratory problems.)
Before a patient is taken for surgery, ensure that the patient is physically fit. In case of doubt, insist on a fitness certificate from a physician.

In emergencies, if the patient requires care in a higher facility or if the existing facilities are inadequate, there should be no delay in shifting the patient to a higher facility. In a given case, summoning a consultant instead of transferring the patient could be considered as negligence and waste of time. (In this case, the patient who had undergone cesarean section had cardiac arrest. The court observed that the hospital (OP) which did not have cardiac facilities, rather than calling a cardiologist ought to have transferred the patient to another hospital having cardiac facilities.)
Accepting a patient or continuing treatment of a patient having a particular ailment without the requisite infrastructure, equipments, or doctors is per se negligence.
Hospitals and nursing homes must ensure that every in-house doctor, regular consultant, visiting consultant, consultant called on request or in emergencies must clearly record that they have examined the patient, duly record their opinion/suggestion, or must at least put their initials at appropriate places on the medical records.
After recording complaint/symptom, it is equally important to record diagnosis, if any, provisional or final or at least the steps taken to arrive at a diagnosis.
Delay in summoning proper consultants is negligence of the hospital/nursing home.

Giving anesthesia unnecessarily when not indicated is negligence. The general tendency of administering anesthesia rather than not administering requires some restraint. (In this case, the court has held that giving general anesthesia "unnecessarily" is negligence.)
Before performing any surgery/procedure, both the surgeon/interventionist as well as the anesthetist must peruse the complete medical records of the patient at least once. At times, something important may be discovered or an obvious error could be avoided.
The patient must be examined and requisite investigations must be performed before administering anesthesia.

In case of certain administrative lapses in a hospital/nursing home, only the hospital/nursing home will be held negligent and not the doctors treating the patient. This applies to instances where the staff is unqualified or the floor is slippery - in short situations in which the treating doctors have absolutely no role to play. But in case of other administrative lapses like non-supply of oxygen during surgery, the responsibility lies on both the hospital as well as the surgeon/anesthetist to check and ensure that adequate amount of oxygen is available before starting surgery. In such cases, even though the negligence act is administrative in nature, yet the liability will come on both the hospital and the doctors.