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2016| August | Volume 9 | Issue 8
Online since
August 11, 2016
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CASES
A Head of Department whom the patient has been referred need not personally attend - A team of doctors under the Head's supervision is competent to attend
August 2016, 9(8):133-134
A Head of Department in an institution need not personally attend the hospitalized patient even if the patient is referred to the Head of Department personally. The Head of Department merely has to ensure his/her availability during grave emergencies and that the team managing the patient is competent and qualified. (In this case, the court has observed that, even though the patient was specifically referred to the Head of Gynaecological Department of the hospital (OP), it was not necessary for the Head of Department to attend every case as she had a team of doctors under her who were qualified and competent to manage the patient).
In appropriate cases, senior consultants can give directions to the other doctors managing the patient on telephone, especially during emergencies. (In this case, the Head of Department was giving instructions to the team of doctors performing an emergency caeserean on her cell phone and this was appreciated by the court).
Greater care and caution is required in managing patients with rare diseases. In appropriate cases, the patient should be referred to a higher facility. (In this case, one of the defences was that the patient was diagnosed with acute fatty liver of pregnancy (AFLP), a rare disease, and hence referred to a tertiary institution).
Medical records must be prepared with utmost care and caution. They are the best evidence in a case of medical negligence and are usually not disputed by the courts. (In this case, the court rejected the allegation that the doctor (OP) had not recorded symptoms of jaundice as the other indications were recorded by the doctor (OP) during the 6 months of antenatal care. The court termed that this allegation was an "afterthought").
Delay in performing an emergency surgery after taking decision to perform one is negligence. (In this case one of the allegations was that 3-4 hours were wasted in preparation of an emergency caesrean).
Take the patient and the patient's problems seriously.
Do not act casually.
Inform the patient's relatives/attendants if the patient's condition is critical or the prognosis is poor.
Doctors/hospitals are bound to supply medical records to the patient/attendants within 72 hours of receiving such requests.
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Investigation report/s from other facilities - Can the hospital/doctor treating the patient insist on keeping it with them?
August 2016, 9(8):137-138
Every doctor/hospital has a right to keep the original medical records of the patient. The problem arises when the patient brings medical records or investigation reports of other facilities. On one hand, the doctor is bound to refer to these records/reports, however, on the other hand, such records/reports have to be returned back to the patient. In all such cases, a small summary of the reports/records that have been referred to must be specifically recorded in the patient's history. (In this case, the defense of the pulmonologist (OP) in the court was that he had not performed echocardiography before starting antitubercular treatment (ATT) as the patient had shown him a echocardiography report of another facility and he had recorded in the patient's file "Echo (from outside) - NAD." However, this report was not kept by the hospital (OP1) as it was from another hospital. The report was, therefore, with the patient, but the patient had not produced it in court. This defense was rejected by the court relying on the statement of the radiologist who had performed a computed tomography (CT) scan earlier denying that he had not performed echocardiography).
Greater contemplation and caution is required in overlooking or rejecting the advice given by another doctor although there is no compulsion that a doctor must agree with the diagnosis, advice or opinion of another doctor. The aforesaid dictum applies equally to opinion expressed by radiologists/sonologists/pathologists in investigation reports. (In this case, the patient had undergone a CT scan and the radiologist had clearly opined that a CT/magnetic resonance (MR) angiography was advisable. However, the pulmonologist (OP) whom the patient consulted later chose not to do so. The patient was put on ATT and was later diagnosed with cancer. The court held that failure to heed to the radiologist's advice was negligence).
Appropriate investigations must be done at the outset as well as during the course of the treatment. Continuing a drug/treatment without performing the requisite investigations or further evaluation when indicated is negligence. (In this case, the pulmonologist (OP) was held negligent for failure to perform CT/MR angiography before starting ATT. The court further observed that, if not at the outset at least after 6-8 weeks of starting ATT, CT/MR angiography ought to have been performed).
Startingtreatment without taking the requsite steps to confirm a diagnosis could be held as negligence. (In this case, the pulmonologist (OP) started ATT, without confirming the diagnosis by CT/MR angiography and later it turned out to be cancer. The court held that this was negligence).
Elaborate history of the patient must be taken during the first consultation and while admitting the patient in the hospital.
Care and caution is required in starting a treatment/drug on an empirical basis, especially ATT.
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A doctor-owned hospital is not a distinct legal identity unlike a trust/company-owned hospital
August 2016, 9(8):139-140
The liability of hospitals owned by doctors as proprietary concern is different than the liability of hospitals owned by trusts/companies/partnership firms wherein doctors may or may not be having stake as owners. In case of a proprietary hospital, the hospital and its owner are one legal entity and are not considered separate, even though the hospital may be running under a particular name different from that of the owner-doctor. However, trust/company/partnership firm-owned hospitals have a distinct and separate legal identity that is different from that of the doctors owning such hospitals. In such hospitals, the doctors have a distinct set of liabilities that are quiet different from the hospital. (In this case, the patient alleged that, even though the gynecologist (OP) could not be held negligent for failure to provide medical services on account of her personal emergencies, the hospital (OP) owned by the gynecologist (OP) could still be held negligent. The court rejected the allegation observing that the hospital (OP) was a proprietary concern owned by the gynecologist (OP) and did not have a separate corporate existence like any trust/company/partnership firm-owned hospital).
Personal emergency faced by the doctor is a valid reason for not accepting a patient or referring/transferring a patient to another doctor/hospital. (In this case, one of the allegations was that the gynecologist (OP) who had earlier performed tubectomy did not treat the patient when she was consulted by the patient with acute abdominal pain. The gynecologist (OP) pointed in court that, at that point in time, she was busy attending her ailing husband who was admitted to another hospital, a situation that was beyond her control, and hence the patient was referred to another hospital. The patient's allegation was outrightly rejected by the court).
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Wrong HPE report is a pardonable error of judgment but adopting the wrong method and casual approach in reporting is negligence, holds National Commission
August 2016, 9(8):135-136
Failure to follow appropriate procedural aspects of medical practice could be construed as negligence. (In this case, the pathologist (OP) was not held negligent for giving a report that ultimately turned out to be incorrect, but was held negligent for failing to take reasonable care while reporting as the report did not bear certain details such as date, biopsy number, gross features of specimen, etc. The court observed that this was "not a standard method of histopathology reporting by a pathologist. It should be borne in mind that, as a pathologist, you have to provide a methodology of investigation allowing a clear distinction between reasonable and unacceptable pathology practice" and that "the method adopted by the OP (pathologist) for histopathology reporting is just a casual approach i.e. carelessness. It is not as per standard of practice, it's an act of omission").
This case is an excellent illustration of what is considered as negligence by courts. The pathologist's (OP) report was admittedly incorrect, but the court held that it was merely an error of judgment as there is always a thin line of differentiation between endometrial well differentiated adenocarcinoma and atypical papillary proliferation. However, in the same breadth, the pathologist (OP) was held negligent for his casual approach in preparing the report as there was no date, biopsy number, no gross features of specimen, etc., in the report, and hence termed as "unacceptable pathology practice" by the court. ,
A wrong report is not
per se
negligence. (In this case, the pathologist (OP) had wrongly reported atypical papillary proliferation as endometrial well differentiated adenocarcinoma. The court held that this was not negligence but error of judgment and agreed with the defense of the pathologist (OP) that there is a thin line differentiating the two).
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Delay in shifting patients to ICU is negligence except in cases when ICU/ICCU is fully occupied by other patients
August 2016, 9(8):145-146
Failure to admit at the outset/shift the patient to the intensive care unit (ICU)/intensive coronary care unit (ICCU) when indicated is negligence
per se
. Delay in doing so is also an instance of negligence. In case, all the ICU/ICCU beds are occupied by other patients, transfer the patient immediately to another hospital, and duly record this fact in the medical records. Preserve and produce relevant records in the court to demonstrate that at that point in time ICU/ICCU was fully occupied by other patients. (In this case, the patient was hospitalized with Stevens-Johnson syndrome (SJS). The court held that the hospital (OP) was negligent for not admitting the patient in the ICU straight away and keeping her in ward for 6 days, even though she required continuous monitoring for serious drug reaction. The court further observed that the hospital (OP) "did not produce any evidence to show that the ICU/ICCU was fully occupied by the patients" at the relevant time).
Assess the patient in accordance with the acceptable and standard medical practice. Duly record the same in the patient's medical records. (In this case, the court drew adverse inference as the hospital (OP) records did not indicate that the patient who was suffering from SJS had undergone SCORTEN (score of TEN) assessment. The court observed that the disease severity scoring system called SCORTEN was important for management of SJS as it helped doctors assess the severity of illness).
While prescribing drugs take into account suspected reactions, allergies disclosed by the patient, and so on. (In this case, one of the allegations was that, even though the patient was allergic to paracetamol and this fact was known to the doctors (OPs), yet they administered paracetamol during hospitalization).
Specifically record if the patient/attendants refuse to get admitted/transferred to ICU/ICCU. (In this case, the court has specifically observed that there was "no evidence that, patient herself denied ICU admission." Perhaps such a defence was taken by the hospital (OP)).
Instances of patients refusing to follow or acting contrary to instructions of the doctor/hospital should be specifically recorded. (In this case, the patient took paracetamol syrup on her own without any instructions from the doctors at the hospital (OP). This fact was specifically recorded in the patient's progress sheet and pointed out to the court in defence).
Greater care and caution is required in ailments/indications where treatment is primarily supportive and symptomatic.
Be vigilant and watch out for complications or allergic reactions during the course of treatment.
Take appropriate efforts to arrive at a proper diagnosis, provisional or final. Duly record the efforts taken for the same. (In this case, the court drew adverse inference against the doctors (OP) as they were unable to diagnose the cause of patients fever even though the fever did not reduce after 6 days).
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Incomplete surgery or procedure is not necessarily negligence
August 2016, 9(8):143-144
Incomplete medical treatment/intervention is not
per se
negligence. However, there must be valid and bonafide reasons for doing so, and the same must be duly recorded in the medical records of the patient. A doctor is merely expected to follow the standard protocol of the treatment/intervention (In this case, one of the allegations was that both the doctors (OPs) were unable to complete the procedure/surgery and remove the stones, and hence were negligent. The court rejected this allegation observing that the doctors (OP) had followed the accepted medical practice). ,
Contemplate before performing a surgery whether the hospital/facility is appropriately equipped for the same. Emergencies, of course, would be an exception, and even less equipped facilities would be legally acceptable. (In this case, one allegation that was not accepted by the court was that the doctor (OP) carried out surgery in his own nursing home which was ill-equipped to carry out such a complicated surgery).
Going out of the way to help the patient, such as accompanying the patient during transfer or helping the patient in getting admitted in another hospital, is always viewed favourably by the courts. (In this case, the court has very specifically taken note that the doctor (OP) "himself accompanied the patient to ensure easy admission procedures" at the other hospital).
Advise appropriate investigations to arrive at a proper diagnosis.
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Recurring wounds, multiple surgeries - Not always negligence
August 2016, 9(8):141-142
In all cases/indications/interventions where recurrence and/or two/multiple stage treatment/intervention is common, the said fact must be specifically informed to the patient and must be duly recorded in the prescription and/or other medical records. In case of an intervention, this fact must also be specifically recorded in the consent. (In this case, the patient was diagnosed with Fistula-in-Ano, underwent surgery, but the wound recurred. The court relying on medical literature held that such kind of fistula recur and need more than one operation and in some cases multiple stage operation is also required, and hence it was not negligence).
Doctors ignoring investigation reports of other facilities or the ones performed earlier by the patient is slowly becoming a bone of contention. Patients are questioning advice for fresh investigations in courts. Fresh investigations must be advised for sound medical reasons and only in the patient's interest. (In this case, one of the allegations rejected by the court was that the doctor ordered fresh investigations ignoring the tests done earlier at another facility, for which the patient had to incur further expenses).
All acts of indiscipline or violence by the patients/attendants must be taken seriously. In appropriate cases, a police complaint must be lodged. (In this case, the doctor (OP) pointed in the court that the patient "abused the doctors and compounders and created a scene like ruffians and snatched the money away from the compounder even more than what was given and walked away in a huff").
Patients making allegations of negligence against a particular doctor/hospital but continuing treatment with the same doctor/hospital is fairly common. The courts have drawn inference in favor of the doctor/hospital in such instances. Even in this case, although the patient alleged that he was dissatisfied with the post-surgery care of the doctor (OP) after the first surgery, he again went to the same doctor for the second and third surgery. The court observed that the patient "would not have gone second and third time to OP's (doctor's) clinic for his surgery and when he has gone second and third time for surgery, it can very well be inferred that complainant (patient) was satisfied with post-operative care of OP (doctor)."
Doctor in-charge/primary consultant/senior consultants must personally visit the patient during hospitalization. This is one of the primary reasons for patient's dissatisfaction and anger. (In this case, one of the allegations was that the doctor (OP) never visited the patient personally and the patient was looked after by the junior doctors).
The doctor as well as the staff must behave with the patient compassionately. (In this case, one allegation was that the second surgery could not be performed due to the misbehaviour and bad temperament of the doctor (OP) and his staff).
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Hospital's plea to be exempted to pay compensation for medical negligence as the patient had already got insurance claim for medical treatment rejected by the court
August 2016, 9(8):147-148
A cashless patient or a patient who has received reimbursement of medical expenses from insurance/employer is also entitled to claim compensation for medical negligence. (In this case, the hospital (OP) contended that the patient took claim from an insurance company, and therefore should not be granted compensation for medical negligence. The court while rejecting this contention observed that the patient had got her claim from the insurance company toward her medical treatment only and not as claim of medical negligence).
Not charging a patient for a corrective surgery after a medical mishap will not condone the doctor/hospital from the legal consequences arising out of the negligent act. Nevertheless, it is a laudable humanitarian gesture and the courts also do take it into account while deciding the cases of medical negligence. (In this case, the hospital (OP) had specifically pleaded in defense that, the second surgery for removal of the foreign body left during the first surgery at the hospital (OP) was done completely free of cost, but the court held the hospital (OP) negligent).
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