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2014| September | Volume 7 | Issue 9
December 23, 2014
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Standard instruction cards of pre- / post-intervention precautions - Advisable for commonly performed interventions
September 2014, 7(9):125-126
Hospitals/doctors should have standard instruction cards about pre- and post-intervention precautions, especially of the more common interventions performed by them. Such instruction cards can be in English as well as the local language. The patients/attendants must be given these instruction cards at the appropriate time and acknowledgment of receipt must be taken from the patient. (In this case, the ophthalmologist (OP) had very clearly stated in the court that he had issued to the patient a postoperative care and instructions card in the local Bengali language).
A very common problem faced by doctors/hospitals is failure of the patients to show the prescription/Outpatient Department (OPD) card of the other hospitals/doctors consulted by them or at times this fact of consulting others is knowingly concealed. It is prudent that a very specific question must be put to the patient regarding the same and if the answer is in affirmative, the prescription/OPD card must be insisted upon. Failure of the patient to produce the same must be specifically recorded in the medical records. (In this case, the court agreed with the defense taken by the ophthalmologist (OP) and specifically took note of the fact that after consulting another hospital the patient again consulted the ophthalmologist (OP), but did not disclose the findings of the other hospital to the ophthalmologist (OP)). ,
Diagnosis of complications or when the patient becomes serious must be informed to the patient/attendants at the earliest. Failure or delay to do so, at times, persuades the patient/attendants to draw an inference that the doctor is trying to conceal a negligent act.
Repeating or continuing with a particular course of treatment must be done with extra care and caution when the patient is not responding or the patient's condition is deteriorating. (In this case, one of the allegations was that post surgery, even though the condition of the patient's eye was worsening; the ophthalmologist (OP) "went on prescribing the same medicines, again and again").
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Mistakes / errors in medical records written during emergencies should be ignored - National Consumer Commission
September 2014, 7(9):127-128
Acting in emergencies requires more care and caution than in ordinary circumstances. On the other hand courts are more accommodating and lenient in dealing with mistakes and errors committed by doctors/hospitals during emergencies. In this case, the patient was transferred to the hospital (OP) in a critical state and the admission slip showed the time of admission as 12.45 p.m. and the patient was declared dead at 12:45 p.m. on the same day. The court very specifically observed that it was 'surprised' at the aforesaid declaration, but did not hold the hospital (OP) negligent, observing that the same was 'unintentional, which were made during handling of dire emergent situation'. ,
When medicines purchased by patients from outside the hospital are found to be substandard and/or the patient faces complications due to the same, the said fact must be clearly recorded in the medical records. The problem is that the law clearly states that a hospitalized patient is free to purchase medicines from outside, and the hospital cannot insist that the patient purchase the medicines from the hospital alone. (In this case, the father of a hospitalized patient had purchased glucose bottles from shops outside the hospital and the patient suffered complications, probably because these were adulterated).
Adulteration of drugs is a special category of criminal offence under the Indian Penal Code (Section 274 - 276) as every person coming across these are bound to inform the law enforcing agencies. Doctors as a category are more prone to come across adulterated drugs while performing their professional duties, and hence, ought to be more careful in this regard.
Adulterated drugs with their packing/bottle must be sent to the police/competent authorities.
Proper care and caution must be taken in transferring a patient to another hospital/facility. The responsibility of the patient in transit lies with the hospital transferring the patient. (In this case, the allegation was that the patient was not shifted to another hospital with proper care. In defense the hospital (OP) stated that the patient was transferred "with all medical precautions and respiratory care (tracheal intubation and ambu bag.)"
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"No doctor commits negligence knowingly" - Court applies the doctrine of 'Nonmaleficence'
September 2014, 7(9):129-130
Law accepts that doctors stand to gain nothing from acting negligently. In this case, it seems the court has attempted to apply this well-known doctrine of nonmaleficence (obligation not to inflict harm on others) in the Indian context, thus, "It should also be considered that no doctor commits negligence knowingly because every unsuccessful case affects his professional career. If most of the treatment cases of a doctor fail, then he would earn such a bad reputation that no one would dare to go to him for treatment".
In cases where certain medical acts are at times performed by the patient at their home or at another facility/clinic usually near their residence, the said fact must be specifically and clearly recorded in the patient's medical record. (In this case the Medical Board has very specifically taken note and recorded in their report "that the dressing was done in the hospital, but at times, they also got it done on their own at their home").
Refusing to refer the patient to another facility must be done with care and contemplation. The patient/attendants may draw adverse inference from the same. (In this case, the patient's husband very specifically alleged that he had requested the orthopedic surgeon (OP) to refer the patient to a higher medical center for total knee replacement (TKR) surgery, but the same was refused).
Every discharge on a patient's/attendant's insistence must be treated as discharge against medical advice and the appropriate protocol must be followed.
The court in this judgment has very clearly differentiated between error and negligence, thus, "A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. But to determine whether an error is one of "judgment" or whether it constitutes negligence it has been suggested that the court to look at whether the error is so "egregious" as to constitute negligence".
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Failure / Delay / Wrong Diagnosis - When is it negligence?
September 2014, 7(9):131-133
Every delay, wrong or failure to diagnose is not an error of judgment and can be negligence. Take appropriate steps, that too in time, to arrive / confirm a diagnosis. (In this case, the court held both the surgeon and the sonologist (OP) negligent for failure to diagnose strangulated hernia accurately. The court rejected the surgeon's (OP) defense that mere physical examination and investigation were not sufficient to detect a strangulated hernia, relying on medical texts).
Before performing an intervention, the principal interventionist must seriously contemplate on the facility and the type of Operation Theater (OT) required. Due care must be taken in deciding whether a minor OT or a major OT would be appropriate. (In this case, one of the allegations was that surgery to remove an ovarian mass was performed by the surgeon (OP) in the labor room).
Consent of only the patient is required in case of an adult, oriented and conscious patient, and there is absolutely no need to take the consent of anyone else. Emergencies of course are an exception. (In this case, the surgeon (OP) very specifically stated in defense that no consent was taken as the patient's husband was not available at the relevant time when he took the decision to perform an emergency laparotomy. However, this was rejected by the court, as the patient was an adult, conscious, and capable of giving consent. Moreover, the surgeon took about four hours to take the decision to perform the surgery, and therefore, it could not have been an emergency).
Consent is not required during an emergency. However, whether the patient was in an emergency and whether the failure to take consent was bonafide will be investigated by the courts. (In this case, the surgeon (OP) had stated in court that he took a decision to perform emergency laparotomy surgery in view of the patient's condition and did not wait for the patient's husband to return and give consent. Both the defenses were rejected by the court, as there was a sufficient time of four hours, hence, it was not an emergency and the patient was conscious and could have given consent).
Exceptions to informed consent (enumerated in this judgment) are (i) emergencies, (ii) the therapeutic privilege, (iii) patient waiver, and (iv) for treatment of criminal suspects or patients in custody. This list is not exhaustive.
Specifically record if the patient has no attendants or they are not available at that point in time and a very important decision or consent has to be taken. Taking contact coordinates of the patient's attendants/relatives when admitting the patient and contacting them on mobile during such a contingency is a good option in all such cases. (In this case the surgeon (OP) had very specifically pointed out in the court that his failure to take consent was "due to the careless attitude of the husband of the patient, who left her in the hands of OP-1 (surgeon), without any attendant/family member").
Hospitals are always (vicariously) liable for the negligence committed by their staff, both medical and non-medical.
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The cascading effect of the 11 crore judgment on cases of medical negligence - Higher insurance cover advisable
September 2014, 7(9):142-142
After the 11 crores compensation granted by the Supreme Court in a case of medical negligence, there has been a sudden and significant increase in the amount of compensation granted by Indian courts in cases of medical negligence. Earlier a sum of five lakhs was considered to be on the higher side, but the present judicial trend is to grant 25, 50, and even 70 lakhs as compensation. Even in this case, the compensation of 5 lakhs granted by the State Consumer Commission was simply doubled to 10 lakhs by the National Consumer Commission. The court, while enhancing the compensation, very specifically referred to the aforesaid case decided by the Supreme Court, wherein, 11 crores was awarded as compensation. Keeping in view the aforesaid it is now rather mandatory for hospitals and doctors to take an insurance cover of a higher value.
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Court refrains from questioning the "professional decision of the operating team"
September 2014, 7(9):134-136
Courts generally do not interfere with the medical decisions taken by doctors/hospitals. (In this case, the decision of the surgeons to leave the bullet inside the patient's abdomen during the surgery was very forcibly questioned by the patient's relatives, but was rejected by the court relying on the clarifications given by the surgeons. The court refused to entertain this allegation, observing that "to leave the bullet in the soft tissue was the professional decision of the operating team").
Incorrect information gathered by the patient/attendants is fast emerging as one of the main reasons of the rise in medicolegal cases. In this case, the court has very specifically observed that the patient's relatives "were laboring under a mistaken belief that had the bullet been removed at the first instance, the toxicity from the bullet ingredients would not have caused the death of the patient. In our considered opinion, Opposite Parties No.2 and 3 had adopted the well-established expected treatment strategy for the patient with gunshot injury to the torso (abdomen), which mostly depends upon the hemodynamic status of the patient" Proper and regular communication with the patient/attendants minimizes the chances of medicolegal problems. Decisions taken by the medical/surgical team must be disclosed and explained to the patient/attendants at the earliest. The courts also draw positive inference from such communications/disclosures. (In this case, the surgeons (OP) specifically stated in defense that they had informed the attending relatives of the patient 'about the nature of the surgery and the possible outcome, as also about the lodged bullet in the subcutaneous plane, which would be tackled later if and when required'. The court did take into cognizance this defense, while holding that there was no negligence). ,
In all cases where a patient has been shot and the bullet is removed from the patient's body, the bullet should be handed over to the police and a proper acknowledgment of receipt must be taken.
Courts draw a positive inference when doctors/hospitals go out of the way to treat/manage patients. In this case the court very specifically noted that the surgeon (OP) "came himself and operated on a day, which was not his call day".
All medical actions must fall within the accepted medical practice. (In this case, the surgeons (OP) were able to satisfy the court that not removing the bullet from the patient's abdomen during the first surgery was a standard treatment and a well-established and recognized standard procedure followed in such cases),
Law accepts that "the doctors, in complicated cases, have to take a chance even if the rate of survival is low".
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'Doctor's choice' and the 'Right course of treatment'
September 2014, 7(9):137-139
A doctor is free to adopt a particular course of treatment over the others, subject to the condition that the doctor has the requisite qualifications, and the course of treatment preferred is also scientifically acceptable. (In this case, the neurosurgeon's (OP) preference of the 'clipping' method over the 'coiling' method in a patient diagnosed with bilateral Middle Cerebral Artery (MCA) aneurysm was questioned in the court. The court refused to entertain this allegation regarding the doctor's choice of the 'clipping' method). ,
Suggesting the available alternative/s to the patient and also the name of the speciality and doctor/s skilled to perform the said alternative/s is a healthy practice. The aforesaid must be specifically recorded in the patient's medical records. (In this case, the neurosurgeon (OP) very specifically stated that he had suggested the name of a neuroradiologist from the same hospital, who could perform 'coiling' and left the choice to the patient to approach him, although he had advised 'clipping' of the aneurysm.)
Post surgery, everyone involved with the patient must be vigilant about post-surgery complications and on the diagnosis of any such complication, appropriate remedial measures must be taken quickly. The complication as well as remedial measures must be specifically recorded in the patient's medical records. (In this case, the neurosurgeon (OP) pointed out in the court that, "postoperatively, the patient had slight weakness on the right side of the body, with speech problem, which was detected, after he awoke, in the operation theater, itself. An immediate DSA was done, which showed non-filling of the middle cerebral artery, hence, the patient was re-operated and re-checked the position of clip ..... those findings are mentioned in the Operative Notes of patient's indoor case papers".)
Law treats an accident or mishap very differently from an unanticipated or unknown complication suffered by the patient. While the former may or may not be negligence the latter is certainly not negligence. In this case, the patient's speech problem post surgery was detected in the Operation Theater (OT), and hence, the patient was immediately re-operated. The court observed that 'it was not an accident or a mishap during or after surgery,' and hence, not negligence.
Threat, pressure, coercion or intimidation, direct or indirect, on the patient to give consent makes the consent invalid and illegal.
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Medical literature and medical practice - The two pillars of legally acceptable 'standard of care'
September 2014, 7(9):140-141
The standard of care prescribed by law for medical professionals lays down that every action/decision must be based on medical literature/science and must be acceptable to other professionals of the same speciality. (In this case, the patient challenged the ophthalmologist's (OP) decision to prescribe steroids post surgery. The ophthalmologist's (OP) defense that was accepted by the court was that 'the steroid treatment was rightly prescribed as this was the most popular choice in such cases, and this assertion was also based on medical literature').
A doctor is free to choose from among the various available options, give preference to one course of treatment over the others, or decide the priorities in dealing with multiple problems, but every such decision must be in accordance with the accepted medical practice and in the best interest of the patient. (In this case, the patient was referred for cataract surgery and was also diagnosed with retinal problems. The ophthalmologist (OP) first performed cataract surgery instead of vitrectomy and this decision was questioned by the patient in the court. The ophthalmologist (OP) was able to defend this decision in the court on the ground that this action was according to the "firmly established medical principle" and "keeping in mind the best interest" of the patient).
Patient must always be given guarded prognosis.
Law accepts that every procedure/treatment has a certain rate of failure.
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