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2016| May | Volume 9 | Issue 5
May 23, 2016
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Hospitals duty to make alternative arrangments when the doctor is on leave - Difference between patients in a hospital and doctor's personal clinic
May 2016, 9(5):81-83
There is a big difference in the roles and responsibilities of a doctor in a hospital setup vis-a-vis the doctor's own clinic. In a hospital set-up, the overall responsibility of the patient is with the hospital and the doctor has a very limited role to play. The doctor is certainly not responsible for any administrative lapses or wrongs of the staff. However, in the doctor's own clinic, the doctor alone is responsible for all wrongs. Even the liability of individual doctors to pay compensation in cases of medical negligence of a hospitalized patient is nominal, whereas if it is the doctor's own clinic, the liability is completely on the doctor. In this case, the court has dwelled on this subject.The court while responding to the allegation that the doctor (OP) had gone on leave after accepting the patient has observed that "it is for the hospital in which the patient is admitted to make alternative arrangement for the treatment of the patient in the hospital. We have to keep in mind that the patient was admitted in a hospital and not in the clinic of the opposite party no.2 (doctor)."
The most important purpose of medical records is to ensure continuity in treatment. In this case, the court has dwelt on this aspect. The court's observations while rejecting the allegations that the doctor (OP) before going on leave had not briefed the substitute are very apt and point out to this importance thus "As far as briefing the other doctor who was to treat the patient in his absence, in our opinion, no such briefing would be necessary since the symptoms and diagnosis of the patient as well as the treatment being given to him in the hospital is recorded in the treatment record of the patient kept in the hospital and therefore any suitably qualified doctor attending the patient, in the absence of the previous doctor, would be in a position to advise appropriate treatment and medicines taking into consideration symptoms, conditions and illness of the patient along with the treatment given to him in the past. So long as the doctor treating the patient in the absence of the previous doctor is a competent doctor he should have no difficulty in treating the patient on the basis of the record prepared in the hospital."
A doctor having a patient hospitalized under him/her can very well go on leave, however, in critical cases, emergencies, complications, planned surgeries, and so on, more caution and contemplation is required. (In this case, the court has rejected the allegation observing that even if the chest physician (OP) had gone on leave after admitting the patient it was not negligence.)
Each and every ailment/patient need not be treated only by specialists or super-specialists. (In this case, the court rejected the allegation that the consultant physician (OP) was not competent to treat the patient
of the chest physician (OP). The court observed that "It is not as if only a super specialist in chest related disease can treat such a patient.")
Hospitals have the right as well as duty to appoint substitutes in place of doctors who are unavailable or on leave. It must be ensured that such substitutes have the requisite qualifications and expertise. (In this case, the hospital (OP) had stated in defence that the substitute doctor was duly qualified and was on its regular employment.)
A doctor appointing a locum/substitute who does not have the relevant qualifications or expertise is negligent.
A doctor appointing locum/substitute must give proper instructions to the locum/substitute, though in this case, at first sight, the court seems to be suggesting otherwise, but it is not so.
Senior consultants need not be present with the patient at all times. Such allegations are on the rise. (In this case, the patient's allegations that senior consultant was not present with the patient at night was rejected by the court. The court has observed that "The consultant is called if necessary, depending upon the condition of the patient" and "Like other normal human being he also needs to take rest and his meals and then get ready for the duty to be performed on the next day.")
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What is a "certifiable cause" of death?
May 2016, 9(5):84-84
Every death whose cause is not known with absolute certainty must be referred for postmortem by the doctor/hospital. However, a wrong notion exists among a section of doctors that, in case the attendants waive off or refuse, postmortem is not necessary. Even in this case, the hospital (OP) in its defense stated that, as the relatives of the patient opposed postmortem, "there was a certifiable cause of death ... and accordingly, cause of death was certified and body was handed over to the relatives." The court did not hold the hospital (OP) negligent, although one of the allegations was that the definite cause of death was not ascertained by postmortem; however, this is not the correct legal position. Doctors/hospitals are bound to refer the body for postmortem in every case where they are unsure about the cause of death and the patients' attendants/relatives have no role to play. Not referring a dead body for postmortem entails serious consequences for the doctor/hospital.
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Refusal to render further treatment or complete the treatment - Negligence
, holds West Bengal State Consumer Commission
May 2016, 9(5):89-89
Law is not concerned with the outcome of the treatment and a doctor cannot be held negligent simply because the patient suffered a complication, harm, or death. But at the same time, law mandates that the treatment is taken to its logical conclusion. Abandoning the patient midway, failure to complete a treatment protocol, or repeated failure to do something common or simple are instances of deficiency in service and negligence. In this interesting case, the dentist (OP) fixed a ceramic crown over the patient's tooth, and in the next 16 months, the patient repeatedly faced the problem of dropping of the crown. Thereafter, a new ceramic crown was fixed, but within 2 weeks, it also dropped. According to the patient's allegations, the dentist (OP) thereafter refused to treat further and asked her to go to any expert dentist for solution of her "critical dental problem." The court held the dentist (OP) negligent.
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"Every cardiologist is not capable or experienced to the extent to perform PCI"-Doctor's lack of experience taken into account in an emergency
May 2016, 9(5):85-86
Courts in India have started taking into account the experience of doctors in cases of medical negligence. However, in cases of emergencies refusing to accept/manage a patient on the ground of lack of experience is not advisable and should be done only in extraordinary situations and for justifiable reasons. In this case, the patient who had suffered myocardial infarction (MI) was thrombolysed by the cardiologist (OP) who further refused to perform percutaneous coronary intervention (PCI) and referred the patient to another centre for the same. The court while holding that this was not negligence observed that "every cardiologist is not capable or experienced to the extent to perform PCI."
Every doctor/hospital is legally bound to accept and manage emergency patients. Once an emergency patient is accepted, the legal responsibility to manage the patient is much higher, and therefore a doctor who wants to go on leave with an emergency patient under his care, even for a planned holiday, must do so very cautiously. (In this case, one of the allegations was that the cardiologist (OP) refused to perform PCI as he was to go on leave.)
Non-availability of appropriate consultants or facilities is one problem that is often faced by the doctors in providing emergency care. In all such cases, the best that is possible must be done, and thereafter the patient must be referred to another appropriate facility/consultant for further management. The patient/attendants must be counselled and explained appropriately. (In this case, the patient who had an MI was thrombolysed, and thereafter referred to another centre without doing primary PCI, as a cardiologist was unavailable. The court upheld this transfer observing that "Referring the patient to the higher centre is not a medical negligence.")
Courts are very lenient with doctors/hospitals providing emergency care. The following observations of the court very aptly summarizes the judicial view in this regard thus "Consumer Protection Act (CPA) should not be a 'halter round the neck' of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death." "Doctors in complicated cases have to take chances even if the rate of survival is low. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act."
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Continuing/discontinuing the medicines taken by the patient before hospitalization-Care and caution required
May 2016, 9(5):87-88
On admitting the patient, ask specifically and record the drugs taken by the patient. Give specific instructions to the patient about the drugs that need to be continued and the others that need to be discontinued, and duly record the aforesaid. (In this case, the patient was prescribed aspirin for paroxysmal supraventricular tachycardia (PSVT); the patient continued aspirin inspite of symptoms suggestive of dengue. After hospitalization, the hospital (OP) stopped aspirin and started paracetamol. One of the apprehensions of the court was that perhaps the patient was administered aspirin even during hospitalization by the relatives without informing the treating doctors as the patient's husband had very categorically alleged in his complaint that the patient was not instructed by the hospital (OP) to avoid aspirin.)
Patients relatives/attendants giving medicine or food to a hospitalized patient on their own and at times stealthily is a cause of concern. There have been reported cases where the hospital has been held negligent for its failure to prevent the aforesaid. (In this case, the court has expressed apprehension that perhaps the patient continued aspirin even during hospitalization and the same was given by the relatives without informing the treating doctors, which led to bleeding and ultimately death.)
Write both the date and time on each and every medical record. (In this case, according to the hospital (OP), the pathology report at the time of admission showed patient's platelet count as 97000/cumm and the repeat report showed it as 19000/cumm. It seems that time was not written on the reports. The hospital (OP), therefore, had to clarify in the court that "reports in pathology department were entered in chronological order, therefore, it could be interpreted that report No.12312 was done in morning and report No.12349 was done in evening." The hospital (OP) would certainly have been in a better position if time would have been recorded on both the reports.)
Be aware and follow the guidelines or SOPs laid down by the government, WHO, Medical Associations, and so on. Failure to do so is negligence
. (In this case, one of the allegations was that that the hospital (OP) did not act, treat, or monitor the patient according to the standard protocol and guidelines of WHO and NVBDCP for treatment of dengue.)
Monitor the patient at requisite intervals and duly record the same. (In this case, one of the allegations was that the hospital (OP) should have monitored the patient on an hourly basis based on periodic haematocrit/ platelet count determination and vital signs.)
Delay on the part of the patient to get hospitalized must be specifically recorded while admitting the patient. (In this case, the court drew adverse inference for the delay of about 16 hours in admitting the patient after dengue was diagnosed.)
Record specifically if the patient has not shown/brought records of the previous treatment, especially during the first consultation or admission.
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Mixing of investigation reports - A potential area for errors
May 2016, 9(5):90-91
Interchange of investigation reports is a common error; either the report of another patient is filed in the medical records and perused by the doctors/nurses without reading the name or in some cases the sample is interchanged. Proper protocols must be in place to ensure that this error is minimized. (In this case, admittedly the ECG report of the patient was interchanged with that of another patient and the cardiologist had tapered down the vasopressors on the basis of the said interchanged report.)
Admitting mistakes in the court and/or other authorities is not only ethical but also helpful. (In this case, the doctor (OP) admitted before the State Medical Council that the ECG of the patient was interchanged with that of another patient. The State Medical Council gave the doctor (OP) a warning. In court, this fact was specifically pointed by the patient but rejected.)
Courts are always concerned about the real intention of the doctor/hospital behind an alleged negligent act. Once the courts are convinced that the intention was bonafide, mistakes and errors are generally overlooked. This case is an excellent illustration of the aforesaid. Admittedly, the ECG of the patient was interchanged and it was alleged that, relying on the said ECG, wrong treatment was given. The court while rejecting this allegation has observed that "The doctor's paramount intention is to treat the patient in the critical care/emergency units, therefore sometimes, for each case, it could be difficult to change the name and patient's ID in the ECG machine. The emergency ECG will be taken in presence of treating consultant and he instantly reads and interprets the same."
Courts are more concerned about substantive wrongs and allegations, which are technical in nature are usually rejected. (In this case, the court rejected the allegation that wrong treatment was given relying on an ECG that was interchanged observing that "it was just technical allegation.")
Premature discharge of a patient is negligence. (In this case, one of the allegations was that the patient was discharged from the hospital (OP) "without complete treatment and without recovery.")
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An ayurvedic doctoremploying allopathicdoctors and prescribing drugs of both pathies held not negligent - Questionable decision of the State Consumer Commission
May 2016, 9(5):92-93
Practice of cross pathy is negligence per se and the law in this regard is fairly well-settled in India. Courts in India have held allopathic doctors negligent for prescribing drugs of other pathies. However, one important question that arises is whether doctors of two different pathies can come together and try a combination of drugs of their respective pathies on the patient? The answer has to be negative because this is nothing short of a clinical trial. A patient can simultaneously consult two doctors of different pathies on his own. The State Consumer Commission in this case has perhaps erred in holding otherwise. The ayurvedic doctor (OP) was qualified (BAMS)and was running a clinic for the treatment of epileptic patients with a combination of allopathic and ayurvedic medicines and had employed both ayurvedic and allopathic doctors in his clinic. The court did not find anything wrong, although one of the allegations was that the ayurvedic doctor (OP) had no knowledge regarding treatment of epilepsy, as the same is possible only through allopathy, and did not know the exact dose of medicine as it is known to allopaths only.
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Refunding fees to the patient will not give reprieve from the clutches of consumer courts
May 2016, 9(5):94-96
All hospitals charging fees from the patient can be sued in the consumer court,even by patients who may not have paid any fees. Not charging, waiving, or even refunding fees will not give any immunity to the hospital from consumer courts. (In this case, the orthopaedic surgeon (OP) was admittedly negligent in performing additional surgery on the patient's right ankle without any justification. Perhaps on realizing his mistake, he refunded the fees charged from the patient and took her husband's signature on a "refund slip"; and also wrote the words "complimentary" on certain bills. The court observed that once the relationship of a consumer and service provider is established between a doctor and the patient, it cannot be taken away later by such acts).
Do not extend or perform alternative/additional surgery/procedure outside of what has been consented by the patient, except in cases of grave emergencies. Even in emergencies, it is advisable to take written consent of the attendants/relatives, if possible, before proceeding further. (In this case, the orthopaedic surgeon (OP) instead of operating only on the left ankle, for which consent was given, wrongly operated on patient's right ankle also and was therefore held negligent. The court observed that "unless in a case of emergency situation where the life saving process of the patient is involved ... the doctor cannot resort to additional surgery without consent of patient ... The doctor cannot perform additional procedure during a scheduled procedure without prior consent of patient on the ground that it was beneficial to patient, except in cases where the life of patient was in danger").
Oral consent of the patient is a risky affair and should be taken in the rarest of rare cases and that too for sound, solid, and justified reason/s. (In this case, a very interesting defense was taken by the orthopaedic surgeon (OP) that the patient had given oral consent for extending surgery on the operation table, although the patient was consulting the orthopaedic surgeon for a long time and the surgery was planned. Obviously, this defense was rejected).
Do not leave any column or designated space blank while filling the consent form. It is advisable to write "NA" or "Not Applicable" or simply a (-) must be put at such places. Courts draw adverse inference from such blank columns/spaces. (In this case, one of the allegations was that in the consent form signed by the patient's husband the relevant columns such as the title of the surgery were left blank. The court held that it was an "incomplete document" and that it was "not real informed consent").
Doctors and hospitals must be cautious and aware that medical records are stealthily photographed/photocopied by patients/attendants for ulterior motives. Modern technology has ensured that the same can be done easily without getting detected. Even in this case, the orthopaedic surgeon (OP) pointed that the patient's relatives had forcibly taken away her medical records, photocopied it, and then returned the same only after a lot of persuasion.
Do not succumb to physical threats or intimidation from the patient's attendants as it sets an unhealthy precedent. Once the threat ceases, a proper police complaint must be filed and the issue must be taken to its logical conclusion. (In this case, one of the defense was that post-surgery, once the patient was shifted to her room, her relatives created uproar in the hospital, and hence as a goodwill gesture, the hospital (OP) allowed the patient to have medicines free of cost from its shop and assurance was given to the patient by the orthopaedic surgeon (OP2) in writing for free treatment and to bear all the treatment expenses).
In all cases, where medical records are lost, misplaced, stolen, or forcibly taken away, inform the police in writing, take acknowledgment of receipt, and duly preserve the same with the patient's medical records. (In this case, one of the defences was that the patient's relatives forcibly took away the patient's treatment file and returned it only after a lot of persuasion).
The principal surgeon is the captain of the ship, and hence is the only one responsible in the eyes of law for any negligence or shortcoming during the course of surgery. This legal principle has been reiterated in this case. The orthopaedic surgeon (OP) tried to escape from legal liability stating that he had merely assisted the other orthopaedic surgeon (since deceased) in the surgery. The court referring to the documentary evidence drew conclusion that the orthopaedic surgeon (OP) was in fact the "main surgeon" and held him negligent.
Overwriting, interpolating, unnecessary erasures, deletions, etc. creates suspicion in the mind of the court and should be avoided. (In this case the court drew adverse inference against the orthopaedic surgeon (OP) observing that "the word 'R' has been over-written and B/L has been interpolated on it").
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