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2016| June | Volume 9 | Issue 6
June 6, 2016
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Is the surgeon bound to return a part of the fees in case of an incomplete surgery?
June 2016, 9(6):97-99
This case raises an important question-in case of failure to complete a surgery/procedure, is the doctor bound to refund the advance fees received from the patient or a part thereof? There can be three different scenarios:
If the surgery is abandoned at the outset, then after deducting the surgeon's/anesthetist's fees (depending on the time of calling off and such other factors) and/or charges of other disposables/drugs/implants that cannot be reused, the remaining fees must be refunded.
If a composite fee has been charged for two or more surgeries/procedures, and only one has been performed, then after deducing reasonable sum, the rest should be refunded.
However, if the planned surgeries/procedures are inseparable, and only a part thereof has been completed and the rest abandoned, then there is no need to refund fees as the requsite time and effort has been put by the doctor and hospital. (In this case, the patient alleged that he had made advance payment for removal of stones from both the kidneys but stones were removed from only one and therefore sought refund. The urologist, on the other hand, stated that, while attempting to remove stones from the left kidney, there was sudden excessive bleeding, and therefore the entire procedure had to be postponed. The court did not accept the patient's allegation).
The principal surgeon has complete authority and right to take decisions during the course of the surgery and this includes abandoning the surgery or a part thereof. The reasons for doing so must be bonafide and must be specifically recorded in the medical records including surgery notes. (In this case, the urologist while attempting to remove kidney stones had to abandon the procedure because there was sudden excessive bleeding. The court refused to accept this as negligence).
Courts ordinarily do not interfere with medical decisions taken by doctors unless the same is grossly wrong. Moreover, decisions taken by surgeons on the operation table are looked upon all the more leniently. (In this case, the urologist abandoned the surgery midway and this was challenged by the patient. The court refused to entertain this allegation very aptly observing that "The surgeon possessed the requisite skill to deal with the matter and was the best person at the Operation Theatre to decide whether the surgery could be continued or not. His decision cannot be questioned").
Every patient who is discharged must be given a proper discharge and a discharge slip/card/summary. In case the patient leaves the hospital without a valid discharge, written intimation must be sent to the nearest police station.
Failure of the patient to report for follow-up as advised must be specifically recorded. ,
The Consumer Protection Act gives a statutory right to doctors and hospitals to seek compensation upto Rs. 10000 from the patient if the complaint of medical negligence happens to be frivolous or vexatious.
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A corporate hospital having more nosocomial infections than a public hospital - Court questions the relevance of NABH/JCI accreditation
June 2016, 9(6):100-103
Mere accreditations, even from the most prestigious agencies, will not afford any protection to a hospital/facility from legal liabilities. This case is an excellent example where the hospital (OP) very specifically stated in defense that it was accredited by both JCI and NABH, but this in fact worked to its disadvantage. The court citing published research papers went to the extent of questioning how infection in such a hospital (OP) could be more than that of public hospitals.
Hospitals must have appropriate policies, programs, and protocols, as well as departments/persons to monitor and implement them. It is equally important to ensure that the requisite protocols are strictly followed. Relevant records must be prepared and preserved and should be produced in court as and when required. (In this case, the hospital (OP) pointed that it had appropriate protocols as well as departments to monitor infections. The court observed that "mere creation of the department is not sufficient. What actual work was done by the hospital during that period is relevant." The court observed that only the "Environmental Monitoring Report" of the relevant period was produced in the court and there was no other document regarding preventive measures or infection control, and hence held the hospital (OP) deficient in services).
Adding/deleting something in handwriting on a computer printout of a medical record needs extra precaution, especially if the same has to be handed over to the patient such as discharge card and prescription. In such cases, the best option is to destroy the old printout with handwritten material and a fresh print out must be taken after making the requisite changes in the computer of whatever was written by hand. In the alternative, whatever is written in hand must be written in hand on other copies too. (In this case, the discharge summary submitted in the court by the hospital (OP) was different from the discharge summary given to the patient. On the patients discharge summary, reference to the reports attached to it was written in handwriting whereas the same was missing in the one produced in the court by the hospital (OP). The court rejected the allegation as the content of both were same observing that "it is just possible that when computerized discharge summary was supplied to the complainants (patient), the attachments were referred").
Hospitals and nursing homes must have proper patient's grievance redressal mechanism. Once the patient/attendants complaints, appropriate action must be taken. (In this case, one of the allegations was that though representation about patient's care was made to the hospital (OP) authorities and "remedial measures were promised but actually nothing was done").
Elaborate consent must be taken for high risk interventions clearly explaining the various aspects of the proposed intervention. (In this case, one of the allegations was that consent was taken for a minor surgery but a major surgery was performed under general anaesthesia whereby the infected sternum bone was removed and flap surgery was done).
Packages offered by hospitals for a specific intervention/treatment must clearly spell out what is included, what is excluded, and the number of days of hospitalization computed in the package. Disputes regarding packages are rising with each passing day. (In this case, the patient underwent Coronary Artery Bypass Grafting (CABG) surgery under a package offered by the hospital (OP) that was for 8 days, but the patient remained hospitalized for 101 days. The allegation was that thehospital (OP) charged heavily over and above the fixed package).
Hospitals must regulate visitors to the ICU/ICCU and must also follow protocols to minimize infections. Allowing the visitors to see the patient very briefly, directing them to wear gowns and gloves, and cleaning hands before entering the ICU are few such elementary protocols that need to be strictly implemented.
All hospital-acquired infections are neither predictable nor preventable. In this case, the allegation was that the patient suffered hospital-acquired infections which were predictable or preventable, but the hospital (OP) denied the same. The court seems to agree with this defence, though the hospital (OP) was held negligent for failure to produce relevant documents to show that appropriate protocols were followed in this regard.
Courts take into account the standard and locality of the hospital in cases of medical negligence. Fees charged from patients is one such important criteria to classify hospitals. Hospitals charging higher rates are expected to provide better patients care and safety. Similarly proclaiming to be a corporate hospital, one of international standard, super speciality hospital, tertiary hospital, etc. brings in extra responsibility for patients care and safety.
Proper protocols must be in place and be strictly followed to address and contain hospital-acquired infection whether they are due to patient risk factor, organizational risk factor, or iatrogenic factor.
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When the best / modern technique / equipments are not available?
June 2016, 9(6):104-105
A doctor who does not opt for newer drugs/techniques/protocols is not negligent. Similarly, a doctor who does not have the best equipments and therefore fails to use them is not negligent. The only precaution that needs to be taken is that the drug/technique/protocol used should be acceptable to and not rejected by medical science. A few important precautions on this aspect:
Do not assure a patient that a particular equipment/technique will be used if the same cannot be used for any reason.
Corporate hospitals or the ones that charge heavily must use modern technique/equipments. In a number of reported cases, the courts have expressed displeasure if old or obsolete equipments/techniques are used by such hospitals.
In case of any doubt, the patient should be referred to a facility having the requisite expertise/infrastructure/equipments.
Greater contemplation is required if the doctor/hospital has the requisite expertise/equipments but the same is not put to use.
(In this case, the patient alleged that the orthopaedic surgeon (OP) was negligent as he performed open surgery to remove the medial meniscus instead of arthroscopy. The court rejected this allegation observing that "where ever facility for arthroscopy is not available open surgery remains the standard technique for the problem and patient can be treated by open surgery. Stitches could have been supplied by the aid of arthroscopy to the meniscus of the left knee provided the technique and instrumentation is available at the same").
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Legal consequences of patient's failure to show earlier medical records or to give proper history
June 2016, 9(6):108-109
Insist that the patient shows earlier medical records at the time of admission and/or during the first consultation. Greater care and caution is required in taking history from the patient. There are chances that the patient may conceal the most relevant aspect, either knowingly or unknowingly, and the same may adversely impact the treatment/outcome. (In this case, while getting hospitalized, the patient neither disclosed that he was suffering from fever for 1½ months and the medicines taken by him nor the previous medical records. The court specifically took note of the fact that appropriate disclosures "would have helped the treating doctor to take proper decisions").
Miscommunication between patient and doctors is one of the main reasons for the increase in medicolegal cases. This case is an excellent illustration of the aforesaid. The patient's relatives were under the impression that "PUO" is a type of psychiatric disease for which the patient was wrongly referred to a psychiatrist. This impression was carried by them even in the consumer case, and ultimately it was in the court that an explanation came from the doctor (OP) that it means "pyrexia of unknown origin," which is not a psychiatric problem.
Doctor in-charge of the patient or the senior consultant under whom the patient is hospitalized must visit the patient at the earliest after hospitalization. Not doing so creates a wrong impression in the mind of the patient/attendants. (In this case, one of the allegations was that the doctor (OP) "did not visit or examine the patient personally but suggested medicines to the patient from his residence").
The patient must be referred/transferred to another facility if the relevant consultants are unavailable.
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Rising incidents of delay in removing hot water bags given to sedated patients causing burn injury
June 2016, 9(6):110-110
Instances of delay in removing hot water bags given to sedated patients thereby causing burn injuries are being increasingly reported. Care and caution is required in such cases. Proper protocols need to be devised and followed whereby senior nurses are given the responsibility of such patients. (In this case, the hospital (OP) was held negligent for causing burn injuries to the patient due to delay in removing hot water bag and was directed to pay compensation of Rs. 2,50,000 and litigation cost of Rs. 20,000).
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Privileging in surgeries - Need for caution and contemplation
June 2016, 9(6):106-107
Newer specialities and super-specialities are getting recognized with each passing day. A doctor accepting a patient or continuing with the treatment of a patient outside his/her expertise, skills, and qualifications is
negligent. In cases where a patient/ailment can be managed by two or more specialities or the treating doctor is in doubt about his/her own expertise to accept/manage the patient, it is advisable, or rather mandatory, to take a second opinion from the other speciality. In case of interventions, the consultant of the other speciality must be a part of the surgical team and should also be involved in pre and post-surgery care. Duly record the fact of involvement/consultation of the other speciality. (In this case, the court observed that as the patient was an old case of caries spine (tuberculosis spine), in such type of sensitive and delicate cases, specialists like neurosurgeon or spine surgeon, ought to have been present during the surgery or should have been consulted pre/post-surgery by the doctor (OP), but the same was not done).
Medical records especially discharge summary and prescription slips must specifically record the scientific name of the procedure/surgery advised/undergone by the patient as well as the name of the surgeon who had performed the same. (In this case, the court specifically took note of the fact that neither the discharge summary nor the prescription slip had recorded that the patient had undergone "wedge osteotomy" or "Dr. Garg's name," the spine surgeon who had purportedly performed the surgery). , ,
Any deficiency, shortcoming, refusal, or mistake done by the patient must be specifically recorded. (In this case, the patient had wasted more than 1year in starting ant tubercular treatment (ATT) and approached the doctor (OP) after 8months of completion of ATT. Next, the patient's attendants were advised to get the magnetic resonance imaging (MRI) for re-examination, but the patient was again brought to the surgeon without performing MRI. These omissions were specifically pointed out in defense by the doctor).
Explain the various aspects of the proposed surgery/procedure during the presurgery counselling and duly record this fact in medical records as well as consent. (In this case, the court rejected the defence taken by the doctor (OP) that the pros and cons of the proposed surgery were explained to the patient as this was not substantiated by any documentary evidence).
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Charging a "free/cashless" patient - Deficiency of service
June 2016, 9(6):111-112
Empanelled hospitals and nursing homes must act within the terms of the contract of empanelment, especially with regards to fees/charges. There is a steady rise in complaints of the patients alleging that they have been charged for overstay, expensive medicines, implants, etc. under the pretext that the same was not covered in the "package." Doing so is not only a breach of contract but also a deficiency in service, as held by the court in this case. (In this case, the hospital (OP) was empanelled with ESI Corporation and had collected Rs. 110,000 from the patient, whose father had ESI coverage, for purchasing medicines not covered under the ESI package. The court held that the hospital (OP) was deficient in service, referring to the agreement signed between the ESI Corporation and the hospital (OP), wherein it was agreed that during the inpatient treatment of any ESI patient, the hospital (OP) will not ask the patient/attendant to purchase medicines from outside and will provide the treatment within the package fixed by ESI).
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Non-therapeutic/cosmetic therapies-Need for greater caution
June 2016, 9(6):113-114
Medical science has now forayed into non-therapeutic areas. Cosmetology, dental implants, and slimming centres are a few such areas. There is a greater need of caution in such therapies as the outcome is subjective and there is ample space for patient's dissatisfaction. A few basic precautions can help in addressing this risk.
Take complete medical history in the patient's handwriting.
Explain and counsel the patient exhaustively about the treatment and the possible outcome and failure.
Do not assure or guarantee results.
Take detailed consent. If possible, record specifically the rate of success in percentage terms.
Take photographs before starting, during, and on completion of the treatment. Preserve it with the medical records.
Involve close family members or friends of the patient in the treatment, especially during counselling.
(In this case, the court directed the Health Centre (OP) to refund fees charged from the patient for its slimming and weight reducing program as it had failed to deliver the desired results. The defense that the program was Food and Drug Administration (FDA) approved, its nature and outcome was explained to and accepted by the patient and that the patient had suppressed her medical history while enrolling was rejected by the court).
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