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2015| March | Volume 8 | Issue 3
March 18, 2015
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Treating a patient on OPD basis without hospitalization - Contemplation and caution required
March 2015, 8(3):41-42
Treating a patient on OPD basis or not advising hospitalization when indicated is negligence. In case of diabetic patients, hospitalization must be seriously contemplated even for minor procedures. (In this case, the court held the doctor (OP) negligent for failure to hospitalize the patient for performing incision and drainage of his little finger, a minor procedure, as the patient was reportedly having high blood sugar level at that point in time.) ,
It is advisable to keep a copy of the prescription given to the patient, though the same is not mandatory. (In this case, the doctor's (OP) defense was that the patient had not produced the prescription slip in the court wherein he had prescribed antibiotics and other medicines.)
Truth always prevails. Fabricating medical records hardly helps in court and once this becomes evident, the doctor/hospital loses all the sympathies of the court. (In this case, the patient had stated that when he consulted the doctor (OP) post-procedure, the earlier prescription was taken by the doctor (OP) and was torn off and a fresh prescription was handed over to him. The court held that this was the truth relying on the evidence given by the employee of the chemist who had dispensed medicine to the patient.) ,
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'Kaun Banega Crorepati'
March 2015, 8(3):35-36
Inflammable materials must be kept at the designated spaces with proper care and precaution. (In this case, it was alleged that the basement where fire started was meant for car parking but was used for storage of highly combustible items like chemical waste, diesel, oxygen cylinders, etc.)
Proper precautions must be in place to minimize the risk of fire and to deal with fire as and when it happens.
Fire alarms, sprinklers, and such other devices must be in working condition and at appropriate places. (In this case, it was alleged that the fire alarm and sprinklers did not function at the time of fire.)
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Does writing "not for medico legal purposes" on stationery afford any legal protection to a doctor/hospital?
March 2015, 8(3):49-50
Writing/printing on stationery/reports/records that the same is "not for medico legal purpose" or something similar is legally irrelevant. Such writings do not accord any protection to the concerned doctor/hospital. This strange practice is highly rampant in the northern part of India and must be avoided. In this case, the diagnostic center (OP) had even stated in the court that its report had "clearly carried a disclaimer that 'this report is not valid for medico legal purpose' and, as such, this report could not be read into evidence for medico legal purpose.")
Avoid suggesting the name of a specific facility/laboratory/center to the patient for investigations/diagnostic procedures. Sensitive/special/critical investigations would be the exceptions. (In this case, one of the allegations was that the hospital (OP) had very specifically recommended the diagnostic center (OP) to the patient for performing ultrasound.) ,
Greater care must be taken in communicating with the patient, keeping in mind that the patient is susceptible to misinterpreting or not understanding even common medical terms. (In this case, the patient had perhaps misunderstood that advising a consultation with a surgeon or advising a surgical consultation is the same as recommending a surgery.)
Pathology laboratories/imaging centers must very specifically spell out whether the report is suggestive or confirmatory. (In this case, the diagnostic center (OP) had very specifically taken the stand that "it did not confirm appendicitis, but merely stipulated that it was suggestive of acute appendicitis." This was of great help in defense.)
Pathology laboratories/imaging centers must clearly advise that the reports must be correlated clinically. (In this case, the diagnostic center (OP) had specifically stated in defense that its report had very specifically advised the patient "to correlate clinically." This sentence was taken into cognizance by the court while holding that the diagnostic center (OP) was not negligent.)
Pathology laboratories/imaging centers must have proper disclaimers on each and every report. (In this case, the diagnostic center (OP) was able to defend its incorrect report thanks to its disclaimer - "The ultrasound scan is an investigation and therefore has technical limitations as well as inaccuracies inherent in the laboratory and statistical analysis of biological process. It should always be viewed in this perspective and correlated clinically.")
Writing the dates correctly and specifically on each and every piece of documentation done by doctors/hospitals is a healthy practice. Correct dates not only help in taking the right medical decision but also in the court of law. (In this case, the patient's allegation was that he had consulted the surgeon (OP) on the advice of the hospital (OP). The patient's lie was discovered as the court found that the patient had visited the surgeon (OP) a day prior to the written advice for surgical consultation given by the hospital (OP). Perhaps the referral note of the hospital (OP) and the prescription/advice of the surgeon (OP) had clearly recorded the dates.)
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Liability for seeking help/opinion from another consultant not having the requisite qualification/expertise
March 2015, 8(3):39-40
The patient must be sent to seek second opinion, referred to or handed over to a consultant of another speciality only after contemplating and confirming that the other doctor is duly qualified and has the requisite expertise in dealing with that patient/ailment. This dictum is even applicable in dire emergencies. Any defeciency on this count could be construed as negligence of the doctor referring the patient. (In this case, an accidental injury occurred to the bladder while separating bladder adhesions from the anterior uterine wall and the gynecologist (OP1) immediately called a surgeon who repaired the same. The court held the gynecologist (OP) negligent for failure to call an urologist who was available in the hospital at that point in time to repair the bladder.)
Taking "blanket" consent from the patient without giving relevant and proper information is negligence. (In this case, the court commented adversely as the consent did not record that the patient was informed about endometriosis or adhesions, which could cause possible injury to bladder during hysterectomy. The court observed that "it was a blanket consent and not an informed consent.")
Failure to send samples for histopathological examination post-intervention in appropriate cases is negligence per se. It is equally important to record the findings of the said report in the patient's medical record and also to preserve a copy thereof. (In this case, the court held the gynecologist (OP) negligent for not producing patient's histopathological report to support her diagnosis.)
Doctors having qualifications from foreign universities must check whether their degrees are recognized by the Medical Council of India (MCI) or not. Representing to be duly qualified based on such unrecognized degrees / qualification is negligence. (In this case, the gynecologist (OP) had acquired MD degree from Italy which was not recognized by the MCI. Fortunately, she also possessed the degree DGO, and was therefore held competent to perform hysterectomy by the court.)
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Who is entitled to get bills/receipts - The one who pays or the patient?
March 2015, 8(3):37-38
Bills/receipts must be issued to the person/organization making payments to the doctor/hospital and not to the patient. Consequently, any request for duplicate/copies of bills/receipts from any other person including the patients who have not paid the bill must not be entertained. But even such patients whose bill is paid by another person/organization have a right to seek medical records of their own treatment. (In this case, the patients had met with an accident while at work and payment of hospital (OP) bills was made by their employer who was given the bills and receipts. Later on, copies of the bills and receipts were sought by the patients, but the same was refused by the hospital (OP). The court categorically held that the hospital (OP) was not bound to issue duplicate copies of the bills/receipts to such patients.)
In case of any doubt regarding disability of a patient, rather than providing disability certificate, the doctor/hospital must refer the patient to government hospitals for the same. (In this case, the patients were aggrieved as the hospital (OP) had refused to provide them with disability certificates. The court observed that if the patients "wanted any disability certificate, they could have contacted the appropriate authority in government hospitals.")
Do not give false certificates even if requests are made by the patient/attendants/relatives on humanitarian grounds. (In this case, the patients were insisting on a disability certificate which the hospital (OP) did not issue, as according to the hospital (OP), the patients had suffered no disability.)
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The ever-increasing liability of hospitals - Joining consultant/s in a case of medical negligence, held not necessary
March 2015, 8(3):46-48
Hospitals are always liable for the negligence of their doctors and staff. In this case, the patient, for unknown reasons, despite directions from the court, did not join the surgeon who had performed the surgery negligently as a party in the legal proceedings. The court proceeded only against the hospital (OP) and held it negligent.
A surgeon is well within his rights to call another doctor / specialist after opening the patient for opinion / help, to proceed further jointly or to handover the patient to such a doctor, if so indicated. The other doctor who is called midway must also contemplate about his competency and then proceed further. (In this case, the gynecologist (OP) opened the patient to remove ovarian tumor, but performed hysterectomy, and thereafter called a general surgeon who removed the tumor and also performed appendectomy. None of them faced any legal problems.)
HPE reports received by the surgeon/hospital must be given/informed to the patient at the earliest and this fact must be specifically recorded. The chances of skipping this protocol are very high as the HPE report is usually received after the patient is discharged.
In case of any doubt whether the patient/ailment is within the expertise of your speciality or not, it is always advisable to take the opinion of doctors of the other appropriate specialities and involve them rather than not doing so. In case of interventions, presence of doctor/s of the other appropriate specialities in the OT must be ensured. (In this case, the allegation was that after perusing the report of abdominal ultrasound, the gynecologist (OP) ought to have referred the case to a general surgeon or taken second opinion or at least ensured that a general surgeon was present in the OT before starting surgery. Ultimately a general surgeon was called by the gynecologist (OP) midway during surgery who removed the tumour.)
Extension/deviation during an intervention from what has been consented by the patient must be done cautiously. Immediate and imminent danger to the life/limb of the patient is the first and the most important prerequisite that permits an extension/deviation. (In this case, the patient was operated for removing ovarian tumor, but hysterectomy was performed by the gynecologist (OP), and thereafter, a surgeon was called in the operation theater who performed excision biopsy of the tumor and also appendectomy. Deviating this far is legally dangerous, although in this judgment, the reason/s for such gross deviation is not apparent and this was also not raised by the patient as an instance of negligence.)
Expert witness in cases of medical negligence is always another doctor of the same speciality. In this case, the court has ruled otherwise and has held that an orthopedic surgeon is a competent witness in a case of medical negligence involving a gynecologist and a general surgeon. This is not the correct legal position.
Before engaging a doctor employed in government services, hospitals and nursing homes must ensure that such a doctor is permitted under his/her service rules to practice privately. Many issues arise if the patient approaches the court and the most common is refusal of such doctors to even acknowledge that they had touched the patient. (In this case, the gynecologist (OP) called a surgeon who was working in a government hospital to remove the tumor and perform appendectomy. The eligibility of this surgeon to practice privately was very specifically questioned in the court.)
Missing a diagnosis could be held as negligence.
Post surgery complications proximately connected to the surgery could be construed as negligence.
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Consequences of failure/refusal to change the doctor in-charge on the request of a hospitalized patient/attendant
March 2015, 8(3):43-45
Refusal/failure to accept a hospitalized patient's request to change the doctor in-charge is not always negligence. But it is always advisable to consider such request sympathetically or the patient should be given the option of transfer/discharge against medical advice. (In this case, the allegation was that the hospital (OP) did not change the doctor in-charge (OP) of the patient even though such a request was made and this was clearly violation of the patient's right. The defense of the hospital (OP) that no other physician was available in the medical ICU at that point in time was accepted by the court).
Hospitalized patient does not have any right to insist on a particular doctor/nurse to perform routine procedures, though such requests, if made, must be considered sympathetically. On the other hand, choice of getting hospitalized under a particular doctor/surgeon is the patient's right. (In this case, it seems that the patient's son was insisting that pleural tap should be performed by a pulmonologist).
Hospitals and nursing homes must have clear-cut policies/SOPs on commonly occurring problems/situations. (In this case, the patient was put on hand restraints as per the hospital's (OP) policy and this aspect was taken into account by the court in holding that there was no negligence).
Discharge summary must specifically record the reason/s for admitting the patient. (In this case, the patient developed bedsores during the second hospitalization and the hospital's defense was that these were present even during earlier hospitalization. This defense was not accepted by the court as the discharge summary of earlier hospitalization neither recorded that the patient had bedsores nor the treatment given during hospitalization).
Communication with the patients/attendants/relatives should be done compassionately and tactfully, especially when the patient is critical or on emotional issues. A personal touch or concern shown by the doctor can work wonders in avoiding legal problems. (In this case, a 96-year-old patient was put on restraints by the doctor in-charge (OP) and when the son of the patient wanted to discuss this issue, he refused and directed him to the Medical Director. The patient's son alleged in the court that this showed his "sheer arrogance to medical concerns of the patient").
Complaints/complications/injuries/bedsores must be checked properly before admitting the patient and the same must be duly recorded in the admission form. (In this case, the patient suffered bedsores and the hospital's defense that the patient already had bedsores before admission was rejected by the court simply as this was not recorded during admission). , ,
Removing nursing care charts/bed-head tickets from the patient's bedside could be construed as negligence. (In this case, a very specific allegation was made against the hospital (OP) that after the patient's son had an argument with the doctor in-charge (OP) of the patient, the nursing care medical charts were removed from the patient's bedside. The court did not buy this story simply because no complaint was made to the hospital authorities or the Medical Director).
Daily nursing care chart/plan is an important part of medical records and must be preserved properly and produced in court as and when necessary. (In this case, the court drew adverse inference against the hospital (OP) as the daily nursing care chart/plan was not produced in the court).
No one except the hospital's staff has the right or authority to write anything on the patient's medical records, not even another doctor who is not attached with the hospital or the patient's relative/attendants. (In this case, the patient's doctor-son had written that a pulmonologist would be performing pleural tap in the medical records of the patient).
Do not write unnecessary comments in the medical records and, that too, personal or defamatory in nature. (In this case, the patient's son complained to the Medical Director about the doctor in-charge (OP). Thereafter, the doctor in-charge (OP) wrote in the patient's treatment chart that the patient's son was vindictive/confrontative. The court held that this was not negligence). ,
Patients who have developed bedsores during hospitalization must be managed with extra care. Providing air mattresses and changing of postures frequently are recommended.
Relatives/attendants must be clearly informed well in advance of the date and time of an elective procedure/surgery.
Higher facilities/bigger hospitals, especially those claiming to be of international level and charging accordingly, are legally bound to provide higher standard of care.
All possible steps must be taken to contain infections in a hospital.
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