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2016| February | Volume 9 | Issue 2
February 17, 2016
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Doctor performs an emergency surgery without following the pre-surgery protocol - Court holds him "wee bit negligent" and leaves him with a warning only
February 2016, 9(2):19-21
In an emergency, how much risk must be taken, how much deviation from the standard and acceptable practice must be done, and such other dilemma are always faced by doctors. Emergencies permit the doctor to take such steps which may otherwise be impermissible in normal times. Courts generally are very lenient in such situations. This case illustrates the aforesaid very aptly. The surgeon (OP) proceeded with surgery to remove roundworms even though the patient's platelet counts were low, and sought to justify his decision on the ground that it was an emergency. The medical expert opined in the court that as "the platelets were excessively low, no surgery should be resorted to without increasing the platelet count." The court did not hold the surgeon (OP) negligent for proceeding with surgery, but "wee bit negligent" for failure to diagnose bleeding tendency (hemophilia). The court directed only the hospital (OP) to pay compensation, and not the surgeon (OP). ,
Perform surgery in spite of any contraindications or abnormal vitals, only in life-threatening emergencies and for medically justified and strong reasons. (In this case, the surgeon (OP) went ahead and performed an emergency surgery to remove roundworms even when the platelet count of the patient was very low. The court did not find fault with this decision.)
The standard of care expected from a doctor varies depending on the period when the medical act was performed, the locality where it was performed, the infrastructure of the hospital, and such other factors. Courts take into account such factors in deciding cases of medical negligence. (In this case, the court has very specifically taken into account the aforesaid by observing that "treatment of hemophilia needs transfusion of clotting factors, but during 1995, very few centers in India had such facility.")
Caution, contemplation, and sound justifications are required in taking decision to perform surgery in a case/indication that can be treated medically. (In this case, one of the allegations was that though the patient had a number of roundworms in his gut, surgery was not required and it could have been treated medically.)
Pre-surgery investigations must be performed even in cases of emergencies. (In this case, the court has observed that even though it was an emergency, the surgeon (OP) was bound to investigate the patient thoroughly, especially with basic investigations like prothrombin time (PT) and partial thromboplastin time (PTT), which would have been useful in diagnosing the problem of the patient.)
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Taking consent/acknowledgments/endorsements in the patient's "own handwriting"
February 2016, 9(2):28-29
Taking consent/endorsements/acknowledgments in the patient's own handwriting in case of important/risky medical decisions/actions is always advisable. (In this case, one of the allegations was that the patient had not signed consent, but the plastic surgeon (OP) was quick to point out that the patient had given consent by "writing in his own handwriting.")
Consent form must always be filled by one person and any difference in handwriting is always viewed adversely by the court. Even in this case, the court has very specifically taken note of the fact that the consent was "filled in different handwriting," although the plastic surgeon (OP) was not held negligent.
Record specifically in the consent if any part of the body has to be removed, even if the same needs to be used as a graft on the same patient. (In this case, one of the allegations was that the plastic surgeon (OP) had not taken consent for removing a piece of hip bone that was used as graft for reconstruction of the patient's face.)
Failure of patient to follow medical advice, especially regarding follow-ups, must be duly recorded. (In this case, the plastic surgeon (OP) had specifically stated in defense that "the patient did not follow the instruction to come for follow-up treatment after every 2 or 3 days, and therefore, infection had developed.")
Complete and correct history of the patient must be elicited and duly recorded. Patient's history has an important role to play in treatment/management as also in legal proceedings. (In this case, the plastic surgeon (OP) had taken defense that "as per the information given by the complainant (patient) and the test report, he is a chronic alcoholic. Therefore, such complications developed after plastic surgery.")
Error of judgment is not negligence. The court has very aptly commented on this important aspect of law thus: "In medical negligence cases, there is no presumption of or inference of negligence merely because of an unfortunate result which might have occurred despite the exercise of reasonable care. Under the law, physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it is proven that an error of judgment was the result of negligence. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. But to determine whether the error is one of 'judgment' or whether it constitutes negligence, it has been suggested that the court is to look at whether the error is so 'egregious' as to constitute negligence."
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Patients producing prescriptions selectively to suit their case - A recent trend fast catching up
February 2016, 9(2):22-23
In recent cases, it is being observed that the patients are selectively producing medical records to suit their case, especially prescriptions which are usually handed over to the patient. Doctors must always keep a copy of such medical records or write the requsite details in a register kept especially for this purpose. Another good option is to write prescriptions on a letter head in continuity with entry of the second consultation below the first consultation and so on and each sheet being numbered serially. (In this case, one of the defenses taken by the doctor (OP) was that the patient had selectively produced prescriptions in court and had not produced the prescription wherein he had recorded the fact that the patient was administered an injection 1 week back by an Ayurveda doctor resulting in swelling in the gluteal region and left side of the buttock.)
Extra care and caution is required in all cases where the patient has taken treatment from a doctor of another pathy or a quack, or seems to be suffering from a post-treatment complication. This fact must be duly recorded in the patient's history. (In this case, the defense taken by the doctor (OP) was that the patient had already taken treatment from an Ayurveda doctor who had administered an injection 1 week back resulting in swelling in the gluteal region and left side of the buttock and the doctor (OP) had merely tried to treat it. The court rejected this defense observing that "no documents were produced by the doctor (OP) to show that he had already diagnosed the patient with gluteal abscess.") ,
Injections must be administered in the right way. Cases where doctors/hospitals are being sued for wrongly administering an injection are on the rise.
Every patient who is admitted in a hospital must be provided with a discharge summary/ticket even if admitted for a few hours. (In this case, the court has drawn adverse inference against the doctor (OP) as no discharge summary was given to the patient.)
Reference letter must briefly record the history also. (In this case, the court rejected the defense that the patient already had gluteal abscess when he consulted the doctor (OP), and one of the reasons for doing so was that "in the reference letter, (there was) nothing to suggest regarding the gluteal abscess.")
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"Giving preference to one mode of investigation over another cannot be turned as a case of medical negligence"
February 2016, 9(2):24-25
A doctor has all the rights to choose one among the various scientifically accepted options, and this applies to investigations also. (In this case, the allegation was that the doctor (OP) had advised malaria parasites slide test instead of malaria antigen test. The court observed that there was nothing in medical science to show that malaria antigen test was "mandatory" for such a patient. The court has clearly stated that "giving preference to one mode of investigation over another cannot be turned as a case of medical negligence.")
Failure to perform any investigation advised by the treating doctor/s is one of the commonest mistakes in hospitals and nursing homes. Proper protocols must be framed and followed to avoid the aforesaid. (In this case, the doctor (OP) had advised malaria test, but the same was not performed; hence, the hospital (OP) was held negligent.)
The standard of care expected from a doctor is defined and described by Bolam's law. It states that every doctor is expected to act like an "average" doctor of his/her speciality and not like the extraordinary ones.
Failure to advise the requisite investigations when medically indicated is negligence.
Hospitals can take appropriate action against the staff negligent in performing their duties. In this judgment, the court has expressed similar opinion.
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Patient crosses all limits - First maligns the doctor in press, then files affidavit of fictitious doctors in court
February 2016, 9(2):35-38
Patients/attendants are crossing all limits in making allegations of medical negligence and in proving them in the court. This case seems to be an extreme. The patient's husband called a press conference and made allegations of medical negligence against the gynecologist (OP). The invite specifically mentioned that the press conference will be followed by "cocktails" (the court has taken cognizance of this fact in this judgment). In the court, fabricated affidavit of 2 doctors were filed in support of the allegations of negligence claiming that they were present in the OT when the corrective surgery was performed. This fraud was exposed as the doctors who had performed the corrective surgery came before the court. The result was that the consumer court referred this case to the criminal court to take suitable action, the patient's husband had to abscond, and the lawyer representing the patient withdrew from this case.
Instances where allegations of medical negligence are made by patient/attendants only to blackmail doctors are reported. Hospitals/doctors must not only refuse to oblige, but must also take extra efforts in exposing such elements. This will act as deterrent for future mischief mongers. (In this case, the patient's husband sought Rs. 10 lakhs from the gynecologist (OP) for alleged medical negligence and on being refused, called a press conference and caused publication of defamatory news in one newspaper. The gynecologist (OP) actively pursued this case in court as well as outside the court. The result was that the consumer court not only dismissed the case and granted "exemplary cost," but also referred the matter to the criminal court to take action against the patient's husband for fabricating evidence.)
Doctors/hospitals must take personal interest in legal proceedings rather than relying completely on advocates for defense. This case is an excellent example where the gynecologist (OP) pursued his case diligently in court and exposed the fraud committed by the patient's husband who had filed affidavits of fictitious doctors. The result was that a criminal case was initiated by the consumer court against the patient's husband, he later absconded, and the patient's lawyer withdrew from the case.
Consumer law also gives a right to doctors/hospitals who have been wrongly sued for medical negligence to claim costs. This right must be exercised in appropriate cases. In this case, the gynecologist (OP) sought exemplary compensation from the patient's husband as he had tried to malign the gynecologist's (OP) image without ascertaining and verifying facts of negligence with a malafide intention. The court awarded "exemplary costs" to the gynecologist (OP) while dismissing the complaint.
Medical negligence is often reported by press, both print and electronics. Doctors/hospitals shy away from press and in giving their version, which is a wrong way of dealing with press. (In this case, the patient called a press conference and leveled charges of negligence against the gynecologist (OP) and one of the newspapers published this news. The gynecologist (OP), thereafter, circulated a note amongst editors and reporters of all the newspapers in the city with his clarifications. The result was that one of the editors wrote a note to all the other editors cautioning them against this patient. No other newspaper seems to have published this news thereafter.)
Obtain a proper receipt whenever original medical records, investigation reports, x-ray plates, and so on are handed over to anyone - police, patient, or another doctor/hospital. This protocol must be followed even in emergencies. (In this case, the defense of the gynecologist (OP) was that all the original records were handed over to the patient's husband when the patient was transferred in an emergency to another hospital and he had selectively produced them in the court.) ,
Instances of patients selectively producing medical records in courts to suit their case and suppressing others are on the rise. Doctors and hospitals need to be more cautious on this aspect and must take appropriate precautions.
Attendants/relatives waiting outside the OT when the patient is undergoing surgery must be kept informed about the progress of the surgery at regular intervals. They also need to be informed that post-surgery, the patient is kept under observation in the recovery room or the OT and not wheeled out immediately. Allegations that the surgery went on for hours are commonly made due to misunderstanding and miscommunication. (In this case, the allegation was that the patient was kept in the OT for 9 h after the surgery, whereas the defense of the gynecologist (OP) was that it is a standard practice to keep the patient in the OT to enable the doctors to monitor such patients for a few hours after the surgery as carefully as they are monitored during surgery. Perhaps, miscommunication is to be blamed.)
Contemplation is required in choosing the hospital/facility to transfer a patient. The patient's condition, the facilities required by the patient, and the ones available at the referral center must be properly mapped. (In this case, the patient who had post-surgery complications was referred to a major referral center within hours of the surgery. The court observed that the gynecologist (OP) "acted diligently, took a wise decision to shift the patient to the well-equipped center" and that the said hospital "had well-stocked blood bank and this fact is important because the patient's blood group was rare (A negative)."
In case the patient is critical, suffers from post-surgery complications, accidents, mishaps, and so on, it is advisable to consult senior and more experienced doctors of your speciality as well as other relevant specialities. (In this case, the court has specifically stated that the decision of the gynecologist (OP) to transfer the patient to a bigger hospital in consultation with a senior gynecologist and consultant physician was a "wise decision.")
Doctor must accompany the patient in ambulance during transfers in appropriate cases. (In this case, the court observed that the gynecologist (OP) acted "as a prudent person" by accompanying the patient in the ambulance during transfer.)
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Precautions in case the patient ignores the best advice and chooses the next best alternative
February 2016, 9(2):26-27
In cases where the patient refuses to accept the best medical advice and opts for another alternative, all the available alternatives must be disclosed and discussed with the patient/attendants. The discharge summary/ticket, consent, and other medical records must specifically record the advice given to the patient, the fact that this advice was rejected by the patient, the other alternatives discussed, and the alternative consented by the patient. [In this case, the cardiac surgeons (OP) took a very specific stand that they had "discussed the alternatives of bypass surgery" with the patient's son and that it was the decision of the patient and his son to avoid coronary artery bypass surgery (CABG) and prefer percutaneous transluminal balloon angioplasty (PTCA). The court took cognizance of the discharge summary wherein it was clearly recorded that "the angiography findings were discussed in detail with the patient and his family members and he was advised myocardial revascularization by CABG/multi-vessel PTCA." The court rejected the allegation that the cardiac surgeons (OP) were negligent as they had performed angioplasty though CABG was the correct step and was earlier advised by another hospital.]
Care and caution is required in relying on the investigation reports of another hospital/facility. There is no legal compulsion that in case of a hospitalized patient, all the investigations must be repeated in the hospital where the patient is hospitalized or that a hospital cannot refer to rely upon the investigation reports done at other hospitals/facilities. But in case the reports of the other hospital/facility seem to be incorrect or suspicious, fresh investigations must be advised without any delay. (In this case, one of the allegations was that the cardiac surgeons (OP) had performed angioplasty based on the investigation reports of another hospital. This was not held as negligence in this case, but there are other reported cases where the courts have held otherwise.)
Fees/charges seem to be an issue that is fast becoming a prominent cause for medicolegal problems. (In this case, the cardiac surgeons (OP) had advised and performed angioplasty on a patient who was earlier advised CABG. The patient died. The relatives alleged that the cardiac surgeons (OP) "intentionally performed angioplasty to grab money" and "unnecessarily put excessive charges for the angioplasty package.")
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Court reiterates that a consultant is competent to accept/treat patients as an MBBS doctor
February 2016, 9(2):33-34
A consultant is competent to accept/manage a patient/condition that an MBBS doctor can accept/manage. The court has reaffirmed this legal position very clearly in this judgment. The patient was electrocuted, had burn injuries, and was treated for a few days by the doctor (OP) who happened to be a dermatologist (MD). The doctor (OP) later referred the patient to a higher center. The patient questioned the doctor's (OP) competence to treat him, as she was a "skin specialist." The patient further suggested that the doctor (OP) ought to have given first aid and then referred him to a multi-specialty hospital for further management. This was rejected by the court observing that "she was an MD and a skin specialist; an MBBS doctor can treat this type of injury, therefore, it cannot be said that OP No. 1 (doctor) was not a competent doctor to treat the injuries."
In case fee is not charged from a patient, it is advisable to record the said fact on the prescription or discharge card. (In this case, the government doctor (OP) had stated in defense that she had checked the patient on humanitarian grounds without charging any fee, as he was known to her and he was a handicapped person. But this was rejected by the court observing that "In case OP No. 1 (doctor) had checked the complainant (patient) as a private doctor, then certainly, she might have taken the fee, although no fee receipt was issued to him; therefore, so far as OP No. 1 (doctor) is concerned, some consideration was paid by the complainant (patient) for treatment given by OP No. 1 (doctor).")
Government doctors need to be doubly sure whether their service conditions permit them to practice privately. (In this case, the patient alleged that the doctor (OP) was a government doctor running her private clinic and the court also seems to have accepted this allegation.)
Doctors cannot run a pharmacy, but can dispense medicines to their patients only. (In this case, the doctor (OP) had to specifically deny the patient's allegation that she was the real owner of the medical shop from where the patient had purchased medicines prescribed by her.)
In this case, the patient has misused a medical complication in a rather novel way. The patient who was electrocuted sued the doctor (OP) for wrongly treating him resulting in amputation of his right thumb and finger. Simultaneously, the patient also moved an application to the Tehsildar stating that his right thumb and index finger were suddenly cut in the fodder machine when he was working in his field, and he received Rs. 20,000/- for the same. The court was constrained to observe that the patient was "not a believable person" as he had made incorrect statements and wrongly taken Rs. 20,000/- from the government.
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Surgeon's failure to provide post-surgery care will always be viewed suspiciously by the courts
February 2016, 9(2):30-32
The surgeon performing the surgery is bound by law to provide appropriate post-surgery care to the patient. Failure of a surgeon in discharging this responsibility is always viewed suspiciously by the court. (In this case, the patient had post-surgery complications and was transferred to another hospital on the day of surgery. The surgeon (OP) stated in defense that he had to make an urgent visit, and therefore, the patient was shifted for safety and observation. The court took a stern view of this transfer observing that the surgeon (OP) "ought to have again shifted the complainant (patient) back to his hospital after returning from outstation within short time." Even the medical expert committee appointed by the court passed adverse comments on this aspect.)
Stationery, medical records, receipts, and so on must be kept securely and in trustworthy hands. Instances of the patient/attendants stealing them and then misusing in legal proceedings are frequently reported. (In this case, one of the defenses of the surgeon (OP) was that the payment receipt produced by the patient in court was stolen by her son, and therefore, he had lodged a police complaint and, thereafter, a case in the criminal court.)
If a poor/unaffording patient has to be referred to another hospital, the patient must always be given the option of shifting to a government/charitable hospital, and this fact must be specifically recorded. (In this case, the patient was transferred to another hospital for post-surgery complications. The medical board appointed by the court observed that "it would have been better if she had been referred to some government hospital where treatment cost would have been negligible for such patients developing postoperative complication.")
The legal remedy available to a hospital/doctor in case of the patient's failure to pay fees is to approach the civil courts. In this case, the surgeon (OP) had approached the police station and then the criminal courts for the aforesaid, either under wrong legal advice or to pressurize the patient to withdraw allegations of negligence. If the purpose was pressurizing it did not work as the consumer court ultimately held the surgeon (OP) negligent.
In case any decision has to be taken in the OT and the same is outside the purview of the consent given by the patient, it is advisable to explain the same to the patient's attendants and take their written consent. (In this case, the surgeon had taken consent for laparoscopic surgery, but shifted in the midway to open surgery. The surgeon (OP) stated in his defense that he conveyed this decision to the patient's relatives standing outside the OT. But the court observed that consent was obtained "only for laparoscopic surgery" and then "without taking consent in writing from the complainant (patient) or her close relative, open surgery was performed," which constitutes deficiency of service.)
In all procedures like laparoscopy, where open surgery is a possibility, it is rather mandatory to specifically disclose this fact to the patient and consent for both must be taken at the outset. (In this case, the surgeon (OP) first attempted cholecystectomy through the laparoscopic route, and thereafter, he performed an open surgery. Consent was taken only for laparoscopy, and hence, he was held negligent.)
A patient seeking discharge due to financial constraints must be discharged against medical advice and the appropriate protocol must be followed.
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