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2015| June | Volume 8 | Issue 6
August 25, 2015
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Cross-pathy practice - Homeopath held negligent for using a "Laser Comb'
June 2015, 8(6):98-98
Any doctor prescribing medicines or using any equipment/technique that is outside the scope of his/her qualification, skill or experience is negligent. (In this case, the homeopath (OP) was held negligent for using a 'Laser Gun' for treating a case of hair fall. The court clearly held that use of the 'Laser Gun' was alien to the practice of homeopathy).
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Case of misuse of a doctor's letterhead by another doctor - Need to use and store stationery cautiously
June 2015, 8(6):90-91
A doctor must keep his personal stationery safe and secure and ensure that others do not misuse it. (In this case, the doctor (OP) had performed Dilatation & Curretage (D&C) in the clinic of another doctor which she had rented and had also used the letter pad of the owner-doctor. The owner-doctor had to come before the court to clarify that she was not concerned in any act of omission or commission performed by the doctor (OP) as her letter pad was used for prescribing). ,
Contemplation is required in using the appropriate stationery. Doctors working in a hospital can use the stationery of that hospital for all purposes. But doctors renting out a clinic or a consulting room and accepting their own patients must use their own stationery, especially for prescriptions, advising investigations, and so on. Do not write prescriptions, investigations, and such other documentation and medical records on the letter pad/stationery of another doctor. (In this case, the doctor (OP) had rented the clinic of another doctor and had also used the owner-doctor's letter pad for prescribing. The court observed that the doctor (OP) was negligent as she had used the letterhead pad of the owner-doctor in her absence, which she was not authorized to do).
Whenever a patient consults with complications due to improper treatment given by another doctor consulted earlier, and especially if that other doctor happens to be a quack or an unqualified doctor, extra care and caution must be exercised. This fact must be specifically recorded in the patient's medical records. (In this case, the defense of the doctor (OP) was that she had performed D&C "for septic incomplete abortion with doubtful perforation done by a quack," but this was not accepted by the court perhaps because it was not recorded).
Contemplate before performing a procedure whether the hospital/facility is appropriate, especially to meet any exigency or contingency that may arise during the course of the procedure. (In this case, the doctor (OP) had performed D&C in a clinic that remained open for 5 h during the day time and had no provision for admission. The court held the doctor (OP) negligent and expressed surprise that "a septic abortion was done in the clinic though no facility for admission of patient was there"). ,
In case of critical or high-risk patients, it is imperative to act with utmost care and caution. Failure to do so could be construed as negligence. (In this case, the patient who was pregnant suffered uterine perforation during D&C, a rare but accepted complication. Medical texts clearly state that the doctor ought to be very careful in case of pregnant women. The court held that failure of the doctor (OP) to do his "job very carefully, especially in the case of pregnant women" was negligence).
Failure or refusal of the patient to follow medical advice must be duly recorded. (In this case, one of the defenses of the doctor (OP) was that she had advised the patient to remain in the hospital for 20 h under observation, but the patient left the hospital on the same day after 3 h).
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Dealing with requests of patients/attendants not to disclose/record something that is considered social stigma
June 2015, 8(6):85-86
Contemplate seriously before taking a decision on any request of the patient/attendants not to disclose/record something, especially if that information is considered as a social stigma. The first elementary precaution in all such cases is to take such requests in writing and to preserve the same with the patient's medical records. Law permits withholding of information from the patient for therapeutic privilege, but this exception must be exercised in rare cases. [In this case, the neurologist's (OP) defense was that he did not record the diagnosis on the prescription following the request made by the patient's father that it would be mentally disturbing for his whole family to read the diagnosis of cerebral palsy and tremors. The court did not accept this defense and pointed to the duties of doctors as prescribed by the Indian Institute of Public Administration and the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, according to which recording diagnosis was mandatory]. , ,
Following the correct procedure and protocol is as important as the actual treatment. This case is an excellent illustration where even though the treatment given by two doctors was the same, one of them was held negligent simply for failing to perform the requsite investigations and arriving at a diagnosis before starting treatment. The court has observed that "although there may not be material difference in treatment given by OPs (neurologist) as well as DMC (the other hospital), before starting the treatment of the patient who was having a very serious problem of cerebral palsy and tremors, some diagnosis should be there. Investigations should also have been there in the form of some tests in the laboratory, but it has not been so done by OPs (neurologist) before starting the treatment."
It is advisable to refer a patient to another consultant or take a second opinion in case the patient is not responding to the treatment for a long time. (In this case, the court observed that when the patient's condition was not improving, even after taking treatment for 3 months, the neurologist (OP) ought to have taken second opinion).
Merely because a medicine/treatment did not act or failed to give the desired results is not negligence.
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Physical presence of doctors in court as expert witnesses not mandatory - Examination by Court Commissioner, a better option
June 2015, 8(6):95-95
In cases of medical negligence, doctors of the same speciality can be produced in the court as expert witnesses. These doctors need not come to the court and a request can be made to appoint a Court Commissioner (usually another advocate or someone working in the court) who can then examine the expert witnesses in their clinic/hospital. The National Consumer Commission has very clearly observed in this case that doctors who volunteer as expert witnesses must ideally be examined by a Court Commissioner at their place of work; otherwise, the cross-examination "would certainly have disturbed their schedule in the clinics/hospitals, and in the process would have caused inconvenience to a number of patients being treated by them."
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Liability of doctors/hospitals providing infrastructure to other doctors
June 2015, 8(6):92-94
Legally, there is a difference between renting out hospital/clinic/consulting room/OT to another doctor and hiring services of another doctor. In the former case, the entity providing the facility/infrastructure has no relationship with the patient, but in the latter case, the primary responsibility of the patient is on the hospital/clinic/consulting room/OT. The problem is that once a hospital/clinic/consulting room or even something like an OT is used by a doctor for treating patients, a presumption of contractual relationship with the patient arises. Law is still not very clear in India about renting of facilities to a doctor and the consequent legal liabilities. The best way to remain legally protected is to have a formal written contract between the hospital/clinic/consulting room/OT and the doctor, and to inform each patient, in writing, the rights, duties, responsibilities, and liabilities of all concerned. (In this case, the defense of the doctor (OP) was that his clinic was merely used by the dental surgeon to fix the dental implant, for which the dental surgeon had brought his own infrastructure and he had no role to play in the same. This defense was rejected by the court. The court observed that it was the doctor (OP) who had issued the prescription slip after tooth extraction, charged fees and gave receipt, and prescribed medicines when the patient was having pain in the implanted tooth. The court, therefore, held that the treatment was provided by the dental surgeon who was hired by the doctor (OP) who could not be absolved of the consequences of failure of dental implant).
In all interventions where complication or failure is anticipated, it is advisable to obtain a written consent of the patient very clearly disclosing the aforesaid risks. (In this case, the doctor (OP) was sued for failure of a dental implant. The court, holding the doctor (OP) negligent, has very aptly observed that "there was no evidence that the respondent/complainant (patient) was told that the chances of success of dental implant were not guaranteed. Had the appellant (doctor-OP) obtained consent regarding possible consequences/complications/failure of implant from the complainant (patient), the position would have been different").
Improper communication between the patient and the doctor is fast emerging as the key reason for medicolegal problems. (In this case, the dental implant done at the clinic of the doctor (OP) failed. It was alleged that the patient kept on reporting his discomfort to the doctor (OP), "but he took the matter lightly and kept on dilly dallying" and when the patient took out an x-ray and showed it to the doctor (OP) he "took it lightly and laughed it off by asking, "Who has put you in such a doubt?").
Taking feedback about the treatment from the patient is a healthy practice. It not only helps the doctor/hospital in reviewing their service, but it can also act as a valuable document in defense. (In this case, one of the defenses of the doctor (OP) was that the patient "after undergoing the treatment had given certificate to the opposite party (doctor) that he was fully satisfied with the treatment").
The patient has all the liberties to pick and choose the doctor/hospital to sue. (In this case, the patient had undergone a dental implant in the clinic of the doctor (OP). The patient did not sue the dental surgeon who had actually performed the procedure, but only the doctor (OP). The doctor (OP) objected to the aforesaid, but it was rejected by the court).
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Doctor's liability to check/ensure that the investigations advised are performed - How far expected by law?
June 2015, 8(6):87-89
Failure of the doctor advising investigations to ensure that the same are performed and to peruse the reports could be construed as negligence. Two basic precautions must be taken. The advice for investigation must always be written in the internal records of the hospital/doctor (hospitalized patients) and in the prescription (OPD patients) also, especially if a separate slip to perform investigations is handed over to the patient/attendants. Next, the doctor advising investigations must ensure that the investigations are actually performed and the reports are shown to the doctor and noted in the medical records. (In this case, the doctor (OP) had advised various investigations including the investigation for malaria to a hospitalized patient. Malaria test could not be performed as the Malaria Lab was closed, but the other reports were shown to the doctor (OP). The court held the doctor (OP) negligent observing that he "did not care for to check even whether malaria test as recommended by him was got conducted or not", and that "while examining the patient at that time or in the morning, this doctor (OP) should have checked whether malaria test has been done, if not done then give directions for the same but no such directions were given". The defense that the doctor (OP) could not be held liable for the failure of the patient's attendants to get the report was obviously rejected). , ,
Perusing the complete medical records of the patient is a healthy and necessary protocol. Failure to do so at times results in grave consequences that could be avoided. (In this case, the court held the doctor (OP) negligent as it was found that in the patient's admission record, "jaundice ++" and "yellow eyes" were written in one of the pages, but no investigation/treatment was given for jaundice).
Blood transfusion, once advised to a hospitalized patient, must be done with utmost urgency as delay could be construed as negligence. (In this case, one of the allegations was that blood was transfused after a long delay as the doctor on duty did not sign the formalities).
All efforts must be taken to facilitate smooth transfer of a patient to another hospital. Arranging a proper ambulance is one such step. (In this case, the patient had very specifically alleged that despite repeated requests, no ambulance was arranged by the hospital and its doctors (OPs), and the same was arranged by the patient's relatives to transfer the patient to another hospital).
Elicit correct and complete history of the patient. Ensure that the patient produces the relevant records. Record specifically if the patient is unable to produce/give any of these. (In this case, the enquiry report of the State Human Rights Commission recorded that the patient and its attendants did not give the accurate history of the patient and no record was produced by them).
Expert opinion is not required in each and every case of medical negligence, especially when the records before the court are unambiguous.
Government hospitals that charge for providing services, even if it is on account of blood transfusion or such other services, can be sued in the Consumer Courts. The fact that cheap treatment is given to patients in government hospitals is simply irrelevant.
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Appeals preferred by government hospitals/institutions in trivial cases deplored - Fine of Rs. 5 lakhs imposed
June 2015, 8(6):96-97
Filing of appeals for trivial matters is generally frowned upon by the higher courts, especially if the party preferring the appeal happens to be a government body or government servants (government hospitals and doctors working therein in cases of medical negligence). In this case, the court has very specifically expressed its displeasure as the Cantonment General Hospital and the gynecologist (OPs) working therein preferred an appeal for a paltry sum of Rs. 3200/-.
Spelling mistakes in writing medical records not only by doctors but even by nurses can force the court or the patient to draw adverse inferences. (In this case, the nurse had written a referral letter. The court while discussing this letter has adversely commented, "There are exogenous spelling mistakes of English writing. Thus, such letter appears to be written by an unqualified person like hospital attendant or aya").
Stationery of doctors, such as letterheads and prescription slips, bearing their name/registration number can be misused, and must therefore be kept safely. Only authorized person/s must be permitted to use this stationery, especially when the doctor is not personally present in the clinic/hospital. (In this case, the court has specifically taken note of the fact that the staff nurse of the hospital (OP) had given referral letter to the patient on the letterhead of the doctors (OP)).
Timely referral to appropriate facility, when indicated, is always viewed favorably by courts. But if the referral is for ulterior motives and not in the bonafide interest of the patient, courts draw adverse inference also. (In this case, the patient in labor was referred by the staff nurse of the general hospital (OP) to another hospital purportedly as the patient was at high risk and no gynecologist was available at that point in time. The court found that the patient's BP was recorded normal at the hospital where she delivered baby and the gynecologist (OP) of the general hospital (OP) was busy in her private practice, and therefore held that this referral was deficiency in service).
Referring patients from government hospitals to private nursing homes and hospitals intentionally and without any justifiable reason is deficiency of service.
Doctors of government hospitals need to be absolutely sure whether they are permitted to practice privately or not. (In this case, the gynecologist (OP) who was working at the general hospital (OP) did not attend the patient who was in labor. The patient brought documents before the court to show that the gynecologist (OP) was also practising privately during the relevant period. The court imposed a cost of Rs. 5 lakhs and directed that "the Cantonment Board and authority can recover the costs from the salary of errant doctors, CEO, and staff, as per law"). ,
Tampering of records and documents, even the non-medical ones, can lead the court to draw adverse inference. (In this case, the court has specifically drawn adverse inference from the fact that there was tampering with the hospital's (OP) attendance register).
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