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2013| September | Volume 6 | Issue 9
Online since
January 9, 2014
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The "only surgeon who does not have endophthalmitis is the one who does not operate" - National Consumer Commission
September 2013, 6(9):125-125
Post-surgery infection is the most common and acceptable complication of surgery, and therefore, a surgeon/interventionist cannot be held negligent for the same. However, requisite precautions must be taken and recorded. Medical records to show that the requisite precautions were taken must be produced in the court. (In this case, the court, while refusing to hold the ophthalmologist (OP) negligent for endopthalmitis infection caused to the patient, has very aptly observed that the "only surgeon who does not have endopthalmitis is the one who does not operate").
Important post surgery/procedure advice to the patient must be given in writing and failure of the patient, if any, to follow the same must also be duly recorded in the patient's medical records.
Referral letters must have the necessary details and must also be accompanied with requisite investigation reports and such other medical records that may be required by the other consultant to effectively manage the patient. (In this case, the ophthalmologist (OP) had given referral letters to two consultants and the patient alleged that in both the "type of endopthalmitis" was not mentioned).
Implants, lenses, and such other objects must be procured from standard companies.
Preoperative investigations must be done on a day close to the day of surgery. (In this case, the patient had alleged that pre-surgery tests were done a month before the surgery, but the court held that it was not wrong. However, there are a number of reported cases where the courts have taken a diametrically opposite view. Hence, it is rather advisable to do pre-surgery investigations near the date of a planned scheduled surgery).
Original medical records of the patient are the property of the doctor / hospital and handing over the same to the patient is suicidal. (In this case, the nursing home (OP) had stated that all the case papers, treatment records, and the discharge card, were handed over to the patient on discharge. Fortunately, the court did not comment on this aspect, although in a number of other reported cases the court has refused to believe in such defenses put forth by the doctors / hospitals).
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Patient's consent for medical termination of pregnancy, absolutely mandatory
September 2013, 6(9):123-124
Taking written consent for terminating pregnancy is mandatory, even if the patient may have volunteered for the same. An elaborate procedure is laid down for terminating pregnancy under the Medical Termination of Pregnancy Act, 1971 (MTP Act) and Rules made thereunder, which must be religiously followed. Only when the pregnancy involves extreme risk to the life of the pregnant woman, the doctor may terminate pregnancy without consent. ,
Even if the patient volunteers or suggests a particular course, and if a written and specific consent is the legal requisite, a written consent must be taken. Recording the fact that the patient had volunteered for that particular course in the patient's medical records cannot be a substitute for a written consent.
Under the relevant provisions of the MTP Act, depending upon the period of pregnancy, the opinion of other doctors is required. Every doctor performing termination of pregnancy must follow this procedure. (In this case, one of the allegations was that although the pregnancy of 14 weeks was terminated, the gynecologist (OP) did not take the opinion of two other registered medical practitioners, as the pregnancy was above 12 weeks, and the same was mandated under the MTP Act.)
"Complications occurring during the treatment cannot be said to be negligence but not recognizing them in time and not treating them or treating them too late when patient had reached end stage where results were certainly to the detriment to the patient certainly amounts to negligence". - National Consumer Commission
Requisite preventive measueal with known andhe care of unqualified staff is negligence.ing, either in the consent form or even otherwiseres must be taken well in advance to deal with inherent and known complications.he care of unqualified staff is negligence.ing, either in the consent form or even otherwise
In case, a hospitalized patient leaves the hospital/nursing home without permission or intimation, the local police must be informed in writing and a letter recording the aforesaid must also be sent to the patient by registered post acknowledgment due.
Possible complications and side effects must be explained by the doctor to the patient and in case the consequences are grave, the aforesaid information must be given in writing, either in the consent form, prescription or discharge card. ,
Leaving the patient under the care of unqualified staff is negligence.
Informing the patient's relatives/attendants about the patient's condition, especially when the patient is critical is mandatory.
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Putting / weaning the patient on / off the ventilator - Contemplation, care, and caution required
September 2013, 6(9):133-134
Putting patients on, as well as, weaning them off from the ventilator requires contemplation, care, and caution. Medical records must clearly record the medical actions as well as the justifications for doing so. (In this case, the patient was put on the ventilator after she suffered a cardio-respiratory arrest, and three days thereafter the ventilator was removed, but had to be reconnected after three hours. Meticulously kept medical records, recording the disconnection and reconnection were taken into consideration by the court in rejecting the patient's allegation that the ventilator was not required by the patient).
No consent is required to put the patient on the ventilator. (In this case, the court did not comment on the allegation that no consent was taken to put the patient on the ventilator).
Refer to or take opinion of the requisite consultants as and when indicated. Courts draw a positive inference from such referrals.
Relatives and attendants of a patient in the Intensive Ccare Unit (ICU) must be informed about the patient's condition at regular intervals.
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'Palpably wrong diagnosis' and not 'error in diagnosis' is negligence
September 2013, 6(9):121-122
A palpably wrong diagnosis and not merely a wrong diagnosis or an error in diagnosis is negligence. (In this case, the defense taken by the Postgraduate Institute (PGI) (OP) was that their failure to diagnose the patient correctly was merely an 'error to diagnose,' and hence, it was not negligence. The court on the other hand held that the PGI (OP) was 'palpably wrong in diagnosing,' as they had never bothered to advise appropriate investigations either before surgery or after surgery, and hence, was negligent).
In case the patient requires immediate attention or admission, and the patient may have to wait for the same (especially in public hospitals), it is advisable to advice the patient to seek medical help elsewhere. Duly record in the patient's medical records both the reason/s for failure to provide appropriate care and the fact that advice to seek help elsewhere was given to the patient.
Failure to carry out the appropriate investigations to diagnose or confirm a diagnosis is negligence. (In this case, the court held the PGI (OP) negligent for not conducting a biopsy of the tumor before undertaking surgery and again for not sending the sample for histopathological examination (HPE) after surgery).
Behaving rudely or scolding the patient should be avoided especially when the patient repeatedly comes with the same set of complaints.
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Not relying on earlier reports, repeating investigations - A safe bet
September 2013, 6(9):129-130
Repeating an investigation, especially the critical ones, even if the reports of the said investigations are bought by the patient is always advisable. (In this case, the court drew positive inference in favor of the consultant physician (OP), as he had tested the patient for malaria thrice even though an earlier blood test report brought by the patient indicated that the patient was negative for malaria.)
Confusion persists on a notification issued by the Government of India advising doctors to give presumptive treatment of malaria to patients reporting with high fever. This notification is applicable in only some States, and hence, the doctors must first confirm whether the State in which they are practicing falls in this category or not, before starting treatment of malaria on a presumptive basis. ,
Confirm whether the patient has completed the 'full course' of a particular drug, in suitable cases. Specifically record this information given by the patient in the medical records. (In this case, one of the allegations was that the doctors (OPs) had not ensured that the patient had completed the full course of anti-malarial drugs even after perusing the previous prescription. The doctors (OPs) had specifically stated in their defense that the patient had informed them that she had completed the full course.)
Duly record the name of the hospitals and doctors consulted by the patient earlier and the treatment given by them even if the same is verbally told by the patient. (In this case, all the doctors (OPs) consulted by the patient had stated in the court that the patient had told them she had completed a full course of anti-malaria. It would have been better if these doctors (OPs) had recorded this fact in the medical records of the patient.)
Refer patients to the appropriate consultants or facility and that too on time. (This case is a text-book example on making referrals. The patient who was having fever first consulted a physician (OP1), who gave medicines and advised blood tests. All the reports were negative, but the platelet count was below normal limits and hence he referred the patient to the consultant physician (OP2), who admitted the patient and again got the requisite investigations done. Blood test for malaria was negative, but the patient again reported low platelet count and high temperature. As the patient was not responding, on the third day, the patient was transferred to a super specialty hospital (OP4) where the patient died the next day.)
Referring a patient to another consultant or taking a second opinion is always advisable. In case the patient is deteriorating or is not responding, this exercise becomes mandatory.
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Not knowing the conclusive or specific cause of death
September 2013, 6(9):131-132
In all cases of unnatural death where the conclusive or specific cause of death is not known to the doctor, no death certificate must be issued and the police must be duly informed about all such deaths. (In this case, the court has specifically observed that 'it was the bounden duty of the hospital (OP) to report to the police such unnatural deaths and post mortem (PM) should be conducted').
Bed-head ticket must record complete details of the treatment, including the complaint made by the patient. (In this case, the Medical Board commented adversely as the bed-head ticket had not recorded the patient's complaint of pain and vomiting).
In case of any emergency surgery/procedure, medical records must not only record the details of such a procedure/surgery, but must also record the emergency and the reasons for performing the surgery/procedure. (In this case, the patient was admitted at 6 pm and was taken for laparoscopic surgery of the gallbladder at 11.30 pm on the same night. The Medical Board has adversely observed as the reason/s behind this urgency was nowhere found in the medical records). ,
Hospitals must ensure that post-surgery instructions are followed by the patient, especially not taking of food or water for the specified period. Ensuring compliance of such instructions in a hospitalized patient is the responsibility of the hospital. (In this case, the court rejected the hospital's defense that it was the patient's fault, as she had taken food after surgery against medical advice and this caused vomiting and subsequently death. The court observed that if at all the patient had taken some food the nursing staff in the ward was not vigilant in monitoring the patient after surgery, and hence, the hospital (OP) would be liable.)
Pre-surgery notes must specifically record whether the patient was fasting or not.
Assess the patient properly before any surgery/procedure.
Specifically record pre-anesthesia assessment in the pre-surgery /anesthesia notes.
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Keeping oneself updated on banned / restricted drugs - A legal necessity
September 2013, 6(9):127-128
Every doctor/patient must keep himself updated on drugs that are banned. Prescribing any such drug is negligence
per se
. (In this case, a drug that was banned by the government of India was prescribed and in defense the hospital (OP) accepted that it was unaware of the government notification banning this drug. Fortunately, the operation of the said notification was stayed by the Madras High Court on the relevant date and it was later quashed, otherwise there was no defense available to the hospital [OP]).
Ignorance of law is no defense. Make efforts to remain updated with the law applicable to medical practice and medical establishments.
Specifically record the age of the patient in every prescription/admission form/other medical records. (In this case, the doctor had prescribed a drug for an eight-year-old child, although it was contraindicated for a child below 12 years. The chemist (OP) who was also sued for dispensing this drug took a very categorical defense that as there was no age written on the prescription he had dispensed the same). ,
Insistence/requests made by the patients contrary to medical advice or seeking any indulgence/concession must be specifically recorded in the patient's medical records.
Before prescribing any drug, the doctor must ensure that the same is not contraindicated for any reason whatsoever.
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Changing 'hands' midway during documentation - A potential legal hazard
September 2013, 6(9):119-120
Documents like consent or information sheet that are usually kept with the hospital /doctor and not the patient, but bears the patient's signature, must preferably be written by a single person and with the same pen without changing the ink. (In this case, the sheet where it was recorded that the patient was informed of the possibility of the failure of her sterilization was written by two different persons, and hence, was sought to be projected as a fabricated document. Although in this case the court rejected this allegation but there are reported cases where the court has drawn adverse inference in such situations against the doctor / hospital).
Whenever any important information is legally required to be given to the patient, give this information to the patient in writing and take the patient's signature on the original document or a copy thereof. (In this case, the gynecologist (OP) informed the patient in writing of the possibility of the failure of the sterilization and took patient's signature on the sheet wherein this fact of giving information was recorded. This sheet was produced in the court and it persuaded the court in drawing favorable inference in favour of the gynecologists [OP] as the patients had signed it).
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