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2016| October | Volume 9 | Issue 10
October 19, 2016
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Due to deformity and stiffness of the patient, consent for surgery taken from patient's brother also - The legally advisable approach
October 2016, 9(10):167-168
Law of consent stipulates that an adult, conscious, and oriented patient alone has the right to give consent. However, whenever there is any doubt on the patient's capacity to provide consent or any other issues of concern, it is advisable that signature of a near relative of the patient must also be taken on the consent. In this case, the patient was a known case of ankylosing spondylosis (AS),and a revision surgery for replacement of the acetabular cup was planned. It was pointed out in court that due to the deformity and stiffness of the patient, consent was taken from both the patient and his brother.
A surgeon has the indisputable right to abandon or change the surgery/procedure midway after opening the patient. The reason/s for doing so must be acceptable to medical science and should be in the patient's interest. [In this case, the patient was operated for revision surgery for replacement of the acetabular cup, however, the said procedure was abandoned and the orthopedic surgeon (OP) instead performed girdle stone arthroplasty. This deviation was questioned by the patient. The court observed that, after looking into the condition of the hip, decision to perform the alternate procedure of girdle stone arthroplasty was not negligence, as it is a recognized alternative mode of surgery, when THR is not possible]. ,
Inform and explain the patient/attendants the reason/s for postponing/abandoning an elective procedure/surgery. (In this case, the surgery had to be postponed once. The patient alleged that the anaesthetist could not administer anesthesia whereas the defence was that it was difficult to administer spinal anesthesia as the patient was suffering from AS; hence, it was administered through tracheostomy. Better communication could have certainly helped in avoiding misunderstanding).
Inform the patient's attendants whenever the time taken for surgery is longer than usual.
Experience of the doctor is slowly gaining importance. Even in this case, the patient repeatedly pointed fingers to the lack of experience of the orthopedic surgeon (OP) in performing joint surgeries.
Hospitals must have the requisite infrastructure and equipment necessary to perform a particular type of surgery. Surgeon/s must also ensure the aforesaid.[In this case, one of the allegations was that, due to absence of proper instrument in the hospital (OP),the orthopedic surgeon (OP) "tried to remove well-set femoral component and damaged the bones into pieces leading to severe infection").
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Radiologists/Pathologists should not adhere to the words of the referring doctor in strict sense and not conceal any "crucial finding for want of charges"
October 2016, 9(10):169-171
Consultants/investigation agencies such as pathologists/radiologist are bound to follow the instructions given by the referring doctor. However, in this case, the court seems to suggest that, in appropriate cases, especially when there is any genuine suspicion, the consultants/investigation agencies should go beyond the advice of the referring doctor. The aforesaid proposition cannot be applied in all cases. [In this case, the radiologists (OPs) stated that they had performed a routine scan instead of an advanced targeted scan that could have detected the fetus abnormality as the gynaecologist had referred the patient for gestational age only and any such advice should come from the referring/treating doctor;"the radiologist/sonologist will not simply perform it on his own." The court while rejecting this defense observed that "No doubt the referring gynaecologist, ... mentioned only 'obstetric USG, confirm duration of pregnancy.' It won't mean that radiologist adhere to those words in strict sense. It is the duty of every prudent sonologist to study USG in detail"]. ,
Law considers doctors as service providers, but unlike other service providers, they are bound by ethical obligations. A doctor cannot conceal a crucial finding or not examine a patient thoroughly only for want of charges. This case illustrates the aforesaid appropriately. Admittedly, the radiologists (OPs) had failed to report congenital abnormalities in the fetus. The defense was that they had performed a routine OBG scan and not a targeted scan as the same was not asked by the referring gynaecologist; a general obstetric scan can be done within 5-10 minutes and costs approximately 600INR whereas a focused or targeted scan needs a special higher-end sonography machine as well as expertise on the part of the examiner, takes 1-2 hours or may need two or more sittings, and the cost is also much higher, approximately 2000 INR. The court while rejecting this defense pointed to the ethical obligations quoting an example, thus "if a pathologist while doing differential WBC count from the peripheral blood smear, and if he microscopically finds malarial parasite or any abnormality; he is ethically bound to reveal it to the referring physician even if it was not asked for." ,
Refer the patient to another consultant with greater experience or to a higher/advanced facility in case of any problem/dilemma. [In this case, the radiologists (OPs) failed to report congenital abnormalities in a fetus. The court while holding that this was negligence further observed "it is important for sonologists to know the limits of their expertise. If a malformation is suspected, and the examiner has had little experience with the abnormality in question, the case should be referred to a more experienced examiner. Only in this way all patients be served best"].
Failure to perform the standard/routine acts and to report/record the same is negligence per se. [In this case, the court observed that during general obstetric scan, "the doctor will look for and take foetal measurements" and therefore held the radiologists (OPs) negligent for missing the absence of limbs during scan].
Investigation reports must have appropriate disclaimers pointing out to the sensitivity, inherent limitations, etc. of the investigations performed. [In this case, the radiologists (OPs) had stated in defense that during USG "the position of foetus cannot be changed to view it from sides" and this was an inherent limitation; "sensitivity of obstetric USG is dependent on various factors" and hence is "not fool-proof in detection of fetal malformations;" and that USG is an indirect imaging method and "detection of congenital anomalies depends upon various factors beyond control of radiologist, who merely interprets the results." The aforesaid should be part of the standard disclaimers on each and every obstetric scan report).
Investigation reports must have appropriate clarifications/explanations. (In this case, one of the defense of the radiologists (OPs) was that the fetus was lying on its side, with upper limbs tucked underneath, hence it was impossible to see that limbs were missing but this was not specifically recorded in the report).
Greater care and caution is required in presuming something. Medical practice is after all evidence based, a science, and presumptions have to be bare minimum. (In this case, the radiologists (OPs) stated in the court that "as the organ was tucked (hidden) during the scan and the remaining observations were normal, the same was also presumed to be normal and reported, as such." This was held as negligence).
Casual approach of the doctor in discharging his/her professional obligations could be construed as negligence. (In this case, the radiologists (OPs) had stated that they had not seen the limbs because of tucked position of the foetus and had yet opined "Foetal Spine, Trunk & Limbs are Normal."The court observed that this was "casual approach" and negligence).
Courts are nowadays adversely commenting on the commercial aspect of medicine. Even in this case the court has commented on "the commercial motive of the OPs (radiologists) rather than ethical practice."Commercialization of medicine was permitted by policymakers about 2 decades ago, and has in fact complemented the inadequate public healthcare system of this country to a great extent.
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An allopathic hospital refers the patient to a qualified homeopath - Court expresses displeasure
October 2016, 9(10):172-174
It is advisable that allopathic hospitals/doctors practicing allopathy should refrain from referringtheir patient to doctors/hospitals of another pathy. The law on this aspect needs further clarity. In this case, the court drew adverse inference as the vascular surgeon had referred the patient to a homeopath even though the patient never wanted the hospital (OP) to provide homeopathic treatment. The court questioned as to why did the vascular surgeon, after consulting the cardiac surgeon (OP) "not continue with treatment on the basis of their knowledge and skill gained in the allopathy system of medicine" instead of referring the patient to a homeopath.
Record specifically in the discharge summary if the treatment has remained incomplete, another treatment/intervention needs to be performed later, the patient needs to be re-hospitalized, etc. [In this case, the hospital (OP) stated in defense that while discharging the patient after performing coronary artery bypass grafting(CABG) they had advised her to report for the treatment of peripheral vascular surgery and renal angioplasty. The court rejected this defense as this was not recorded in the discharge summary of the first hospitalization].
Failure to record an observations /findings that are relevant is negligence
. (In this case, the vascular surgeon after he observed gangrene in the lower portion of the patient's leg on the first date failed to record the same. The court commented adversely on the aforesaid).
Failure to take appropriate steps on the complaint/ailment/indication for which the patient was hospitalized is "unfair trade practice." (In this case, the patient was hospitalized for peripheral vascular disease but no action was taken during hospitalization for the same and instead CABG was performed. The court held that not treating the patient for the actual disease of peripheral vascular was "unfair trade practice").
Rely on and refer to only authoritative medical texts/commentaries/journals. (In this case, the hospital (OP) stated in defense that the patient was advised CABG alongwith peripheral vascular surgery and renal angiography to remove blockage in the heart only with a view to avoid the risk of heart attack during peripheral vascular surgery and referred to a research paper to corroborate this statement. The court rejected this defense observing that "In any case it is not a conclusive finding and accepted in medical jurisprudence worldwide. It has also not found any place in medical text books").
Take appropriate steps, at the earliest, especially to deal with the complications that arise during treatment or after a surgery. (In this case, the court held the hospital (OP) negligent for the delay in planning amputation after peripheral vascularisation failed and onset of gangrene was noticed).
The primary consultant must visit a hospitalized patient regularly. (In this case, one of the allegations was that post-surgery the cardiac surgeon (OP) did not visit the patient, andwhen a grievance was made, he deputed other doctors instead).
Perform appropriate pre-surgery investigations.
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Preoperative ECG not mandatory for a 45-year-old patient but failure to take history and perform physical examination before performing surgery is negligence
October 2016, 9(10):175-176
Law accepts difference of opinion as an integral part of medical practice. This aspect is illustrated in this case very aptly. It was alleged that the failure of the orthopedic surgeon (OP) to perform an electrocardiogram (ECG) on the patient who was obese and 45-year-old was negligence whereas the defense was that it was not advised as the patient had no history of cardiac disease. The court held that there was no unanimity on the age (30-55 years of age) at which preoperative ECG is mandatory, and therefore, failure to take ECG was not negligence.
Perform standard pre-anaesthetic assessment (patient's weight, body mass index (BMI), obesity etc.), and duly record the same in a planned intervention.
Perform preoperative evaluation for airway management. Physical examination of the patient should include the Mallampati classification, based on an ability to visualize the uvula it may help identify those with potentially difficult laryngeal visualization, or consultation with an otolaryngologist for a specialized workup may help delineate airway difficulties preoperatively. ,
Ensure that physician/anaesthetist certifies the patient's fitness for surgery in appropriate cases.
Record the name of the aesthetic agent and the quantity used to induce anesthesia.
Do not administer certain medicines without performing the allergy-test.
Medical records have an important role to play in medical practice. In this case, the court has very aptly observed on this aspect, "Medical record keeping has evolved into a science of itself. This will be the only way for the doctor to prove that the treatment was carried out properly. Thus, poor records mean poor defense, no records mean, no defense."
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The patient ceases to be a consumer as the treatment expenses were borne by the hospital -Erroneous findings of the court
October 2016, 9(10):183-184
Once a hospital/doctor accepts/treats a patient, it cannot escape from the legal liability arising out of medical negligence even by waiving fees,offering free treatment,paying ex-gratia sum to the patient, etc. On the contrary, there are reported cases where such acts have been misconstrued by both the patient and the court as an effort to cover-up the negligent act. In this case, the hospital (OP) had borne the entire post-surgery expenses of the patient, and therefore, the court held that the patient "ceases to be a consumer." This view is clearly erroneous.
Take appropriate steps and that too on time to manage complications that arise during the course of treatment. Courts draw favorable inference. (In this case, the patient suffered post-surgery complications and the hospital (OP) provided the requisite help and even took care of all the expenses. The court drew favorable inference from the aforesaid conduct.)
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Junior doctor giving injection in an institution/medical college is not negligence
October 2016, 9(10):177-178
Doctors/hospitals must ensure that every person involved with the patient has the requisite qualifications. Interns/residents can perform certain non-critical/routine acts. However, it is the responsibility of both the hospital and the senior doctors, especially the primary/principal consultant to first ensure whether the intern/resident is capable of performing that particular act and then to supervise. Failure to do so could be construed as negligence. (In this case, the injection was given by a junior resident in consultation with the ophthalmologist (OP), a senior resident faculty member. While administering the injection the patient moved his eyes resulting into complications. The patient alleged that the ophthalmologist (OP) ought to have administered the injection. The court rejected this allegation observing that the junior resident was qualified, had acted under the supervision of the ophthalmologist (OP), and "the injection was given to the patient in accordance with the medical norms").
Wrongs/mistakes done by the patient must be duly recorded. (In this case, the patient suddenly moved his head when an injection was being administered in his eyes and this caused certain complications. Although the judgment is not clear, it seems that the aforesaid fact was duly recorded, and therefore, the court agreed with the defence that the complications were caused due to the patient's act).
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Discharging a patient prematurely - Res ipsa loquitor (wrong is clear and needs no further evidence)
October 2016, 9(10):179-180
Discharging a patient prematurely is negligence per se. [In this case, the patient who had undergone llaparoscopic cholecystectomy was discharged on the fourth day of surgery but on the fifth day of discharge, she was admitted at another hospital where common bile duct (CBD) disruption was reported and hepaticojejunostomy was performed. The surgeon (OP) stated in defense that the patient's condition was stable and there was no complaint of pain or any discomfort at the time of discharge; even on the third post-discharge day when the patient came for removal of sutures her condition was found to be stable. The court rejected this defense and held that the principle of
res ipsa loquitur
(the wrong is patent) was applicable in this case, as it was "very clear that the patient was discharged by the OP-1 hospital even when her condition was not stable and she had to be admitted almost immediately in the other hospital for further treatment"]. ,
Every surgeon is bound to provide post-surgery care. Visiting the patient after surgery at regular intervals is the most elementary aspect of this care, and failure to do so is one of the most common causes of heartburn among patients. (In this case, the patient alleged that post surgery, the surgeon (OP) "never came to attend to her").
Failure of the patient to follow medical advice must be specifically recorded. [In this case, the surgeon (OP) stated that on observing yellowish discoloration of eyes and suspecting jaundice, he advised the patient to undergo liver function tests (LFT) and upper gastrointestinal (UGI) endoscopy tests but the patient was reluctant to get the tests done].
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Patient tries to twist one doctors report to implicate another doctor
October 2016, 9(10):181-182
Doctors need to be more careful in communicating/documenting as this may not only be used in suing that doctor but even other doctors/hospitals, and that too by fabricating/twisting/imputing something that was never meant. Patients are nowadays going to any extent to prove medical negligence. In this case, the patient, who had suffered heart attack, was managed at the hospital (OP) and even one-third of his fees was waived as he claimed to be a freedom fighter. Post-discharge, the patient consulted another doctor where another electrocardiogram (ECG) was also taken, which did not report any regional wall motion abnormality. The patient alleged that he was informed by the other doctor that he never had and could never have had any cardiac problem in the recent past. The court rejected this allegation observing that the other doctor gave an opinion only when the patient approached him post-discharge; the patient was not referred to another doctor by any court of law for submitting expert opinion; the patient had not obtained opinion of the other doctor as an expert opinion and had consulted him only for a checkup; the other doctor found all cardiac functions of the heart normal, and therefore observed that there was no problem of heart whatsoever; the report of the other doctor did not relate to the past history; and the other doctor did not give any finding to the effect that the patient never had any heart problem.
Contemplation and caution is required in giving rebates or waiving off fees. (In this case, the hospital (OP) stated in defense that the patient was charged one-third of the actual charges as he claimed himself to be a freedom fighter. The hospital (OP) was later sued by the patient by twisting reports given by another doctor).
Hospitals cannot force patients to buy drugs/implants from their in-house pharmacy. (In this case, the hospital (OP) reacting to the patient's allegation had to clarify in court that the patient was not forced to buy medicines from the drug store and that the drug store was meant only for the convenience of the patients).
Give guarded prognosis.
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