Medical Law Cases - For Doctors

Supreme Court has not mandated that every hospital/nursing home where surgeries are performed should have an ICU -Misinterpretation by the national media

November 2017, 10(11):167-169

National media had recently splashed news that in this judgment the Supreme Court has laid down a new law that henceforth hospitals/nursing homes that do not have intensive care units(ICUs) cannot perform any surgery/intervention. This is a wrong interpretation of this judgment. The Supreme Court has certainly held the gynecologist and the nursing home (OPs) negligent for performing hysterectomy in the nursing home (OP) which did not have an ICU but its observations are restricted to this case only and certainly not applicable to all facilities in India.
The surgeon and the hospital both must contemplate whether the requisite infrastructure and facilities required for a particular intervention are available and in working condition before taking a decision to perform an elective intervention. (In this case, the patient underwent hysterectomy at the nursing home (OP) which admittedly did not have an ICU. The patient suffered post-surgery complications, was transferred to another hospital, and later died. It was alleged that lack of ICU was one of the reasons for the death. The Supreme Court held both the gynecologist and the nursing home (OPs) negligent observing that "operation should not have been performed at a nursing home which did not have the ICU when it could be reasonably foreseen that without ICU there was post operative risk to the life of the patient").
Performing an elective surgery in haste without scientifically tenable justifications could be construed as negligence. (In this case, the decision to perform an elective surgery about six months after the disease first surfaced without first controlling blood pressure and hemoglobin was questioned in the court. The lower court in fact went on to hold the gynecologist (OP) negligent for failure to justify/record that the "operation was extra urgent and it did not brook any further delay;" for performing surgery on the next day of admission after watching blood pressure and hemoglobin chart only for few hours without deferring the "operation for the time being to observe the condition of the patient for some time more;" and for failure to inform the patient/attendants of such an emergent need. The higher courts (National Consumer Commission and Supreme Court) disagreed with these findings as the gynecologist (OP) produced medical texts which clearly permitted surgery even in such circumstances).
The treating doctor has the right, authority, and discretion to make choices, but every decision must be within the four corners of the "accepted medical practice." (In this case, the allegation was that the gynecologist (OP) performed hysterectomy in a haste without controlling blood pressure and raising hemoglobin. Medical texts were produced by both the patient and the gynecologist (OP) in support of their contentions. The lower courts upheld this allegation but the National Consumer Commission and the Supreme Court rejected this allegation holding that the gynecologist was entitled to make a choice and to take the risk as medical texts supported such a course. The Supreme Court has very specifically observed that "judge's preference of the opinion expressed in the books cited on behalf of OP Nos. 1 and 2 (gynecologist and nursing home) would not be sufficient to establish negligence against OP Nos. 1 and 2").
Greater care and contemplation is required in cases where the doctor makes the choice of the hospital/nursing home for admitting his/her patients. (In this case, the gynecologist (OP) who was treating the patient chose the nursing home (OP) for performing hysterectomy. This aspect was very specifically questioned in the court alleging that the said nursing home (OP) did not have ICU facilities and the gynaecologist's (OP) insistence on performing surgery in the said nursing home (OP) was "a sheer act of professional and monetary greed in order to procure his commission from the proprietor of the said nursing home (OP) in lieu of admitting patients").
The patient must be transferred to an appropriate facility at the earliest when indicated. (In this case, one of the allegations was that, when the patient suffered post-surgery complications and was critical, the gynecologist (OP) "did not bother to take initiative to get himself involved in transferring the case" to another nursing home).
Meet, communicate, and counsel the relatives/attendants of a critical patient compassionately.
The Supreme Court has suggested that Alternative Disputes Redressal (ADR) mechanism,(arbitration/conciliation/mediation) must be availed more frequently and "video conferencing facility for examining expert witnesses wherever necessary" must be used to facilitate speedy resolution of disputes in consumer courts.

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Patient discharged in a "satisfactory condition" readmitted in the same hospital on the same day -Court expresses surprise, holds the hospital negligent

November 2017, 10(11):172-174

Discharging a patient with incomplete treatment is per se negligence. Recording dishonestly or falsely in the discharge card further aggravates this misdemeanor. (In this case, twice the patient was discharged and readmitted on the same day, but the discharge card always recorded that the "patient is being discharged in a satisfactory condition." The court has sarcastically commented on the aforesaid thus "The notes given in the discharge summary that the patient is being discharged in a satisfactory condition. In case the patient was readmitted on the same day then what is the level of satisfaction").
There is no harm in referring to/relying upon recent investigation reports from another facility, but a certain degree of caution is required. (In this case, the allegation was that the neurosurgeon (OP) had performed surgery relying upon a 12-day old report and that too of another hospital. The other hospital was DMCH Ludhiana, one of the best hospitals in that region. The court rejected the allegation).
In case of any lack of infrastructure/doctors, this fact must be specifically disclosed to the patient at the earliest. In appropriate cases, such a patient should not be admitted. In case any such deficiency is felt during the course of hospitalization, the patient must be transferred to an appropriate facility at the earliest. (In this case, physiotherapy was necessary post surgery for the recovery of the patient. The hospital (OP1) did not have the requisite infrastructure for the same yet the patient was referred to another hospital only on the insistence of the patient's relatives. The court drew adverse inference from this conduct).
A complication is not per se negligence but efforts to diagnose the reason and appropriate efforts to correct the same must be taken. (In this case, post surgery the condition of the patient deteriorated, but there was no proof of any attempt made by the neurosurgeon (OP2) to correct it. The court has observed thus "We do not say that offer of surgery amounts to medical negligence but during the procedure of surgery, the Doctor has caused damage to the motor power of the lower limb, which he has not been explained how it happened and what type of efforts were made by them to overcome it").
In appropriate cases, results of a procedure/surgery must be confirmed by performing indicated investigations. (In this case, one of the allegations was that a repeat MRI was not done post surgery).
Disclose and explain the risks and complications associated with the surgery in presurgery counselling sessions. (In this case, one of the allegations was that the patient was not informed of the possible complication of losing motor powers after the surgery).
Provide copies of medical records to the patient and produce them in court. (In this case, the hospital merely provided admission and discharge records to both the patient and the court, but withheld day-to-day progress notes, magnetic resonance imaging (MRI) reports, and other medical records. The court observed that "withholding of the vital documents gives an adverse inference against OPs (hospital and neurosurgeon) and amounts to deficiency in service).
Date of performing important medical actions/interventions and taking important decisions must be recorded in the discharge card. (In this case, the fact that the implant was removed during hospitalization was recorded in the discharge slip but the date on which it was removed was not stated. The court drew adverse inference of the same).
While drafting defense in legal proceedings, doctors and hospitals must first refer to their complete medical records. Any inconsistency between statement/stand in the court and medical records is always construed adversely. (In this case, the court specifically pointed out that the hospital (OP) had stated in its written defense filed in the court that the patient was brought to the casualty with complaints of worsening motor power along with weakness of all four limbs, but this fact did "not tally with the chief complaints of the patient and diagnosis diagnosed by the hospital (OP), therefore, their pleadings are in contravention of their own medical record perhaps to cover the complaint of weakness of all the four limbs, which happened in their hospital after admission of the patient").

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Stubbornness in clinging to a wrong diagnosis is not an error of judgment but negligence, holds court

November 2017, 10(11):170-171

To err is human. Accept mistakes. Reassess/revise your diagnosis/course of treatment in appropriate cases, especially if your treatment is not working or there are complications. Avoid stubbornness. (In this case, the doctor (OP) continued to treat the patient based on his diagnosis of chicken pox despite the patient suffering from drug reaction and her condition becoming worst. Two other hospitals where the patient was later transferred had immediately diagnosed the patient with Stevens-Johnson syndrome (SJS) and managed the patient accordingly. Even in court, the doctor (OP) filed evidence of 3 other doctors, who supported his diagnosis. This stubbornness to revise diagnosis was held as negligence by the court and cost a young girl her eyes).
Diagnosis should always be backed/confirmed by appropriate investigations. Mistake in diagnosis can be an error of judgment but being stubborn about it even when all evidence is contrary or inconsistent with the same is certainly negligence. (In this case, the court held the doctor (OP) negligent for starting treatment based only on his clinical judgment of chicken pox without performing any investigation. Furthermore, he continued with this diagnosis and failed to perform appropriate investigations even when the patient suffered complications. The court held that this was negligence observing that none of the hospitals and expert doctors who treated the patient subsequently diagnosed her with chickenpox and they were all unanimous in their diagnosis of SJS).
While taking history, enquire specifically about the past treatment taken by the patient and document the same. (In this case the doctor (OP) had taken the defense that the patient had suppressed the fact of her previous treatment, continued medicines prescribed earlier, and this caused subsequent complications. The court did not accept this defense as it was not documented).
Patient can be discharged when fully fit or "discharged against medical advice" (DAMA/LAMA). There is nothing like discharge on request of patient/relatives and all such discharges must be treated as DAMA/LAMA. (In this case the doctor (OP) stated that the patient was discharged at the request of the relatives but the court did not accept this contention as the discharge summary showed that the patient had fever and was not fit to be discharged. DAMA/LAMA protocol ought to have been followed in this case).

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Failure to record postsurgery investigation reports in the discharge summary and to produce it before the court is deficiency in service, an unsuccessful procedure is not

November 2017, 10(11):175-176

Law accepts that medicine cannot guarantee cent percent success. So, failure of a therapy/intervention is not per se negligence. However, failure to follow appropriate protocols in accordance with the accepted medical practice could be construed as negligence. This case is an excellent illustration of the aforesaid. The main allegation of the patient was that the urologist (OP) had been unable to remove stones completely during the procedure and this was negligence. The court rejected this allegation observing that "cent percent clearance of stone was not possible." But, the failure of the urologist (OP) to produce postprocedure investigation reports purportedly done to confirm the results of the procedure before the court, expert committee, and patient, and to record its findings in the discharge summary was held as an instance of deficiency of service.
Discharge summary must not merely record the intervention/s performed during hospitalization but also the outcome, whether it was completely successful, partly successful, or failure. Investigations, if any, performed to assess/confirm the outcome of the intervention must also be specifically recorded. (In this case, the court observed that the discharge summary was incomplete as the fact regarding incomplete removal of the stone was not mentioned, and the postprocedure investigation to confirm the results of the procedure was also missing.)
In suitable cases, perform appropriate postintervention investigations to assess/confirm the result/success of the intervention. Duly record the results of such investigations in the medical records such as the discharge summary. [In this case, the allegation was that after performing the procedure no investigations were done to assess its result. The court agreed with this allegation as the investigation report was not revealed to the patient, expert committee, or court. The court observed that perhaps the said investigation was never performed even though the urologist (OP) stated otherwise in the court or was "deliberately withheld by the OPs (hospital and urologist) with some ulterior motive.")
Take efforts to improve communication skills. (In this case, the patient alleged that he was informed that kidney stones were completely removed whereas the doctor stated that he had informed that the procedure could not be completed. The court has very aptly observed "It appears that there has been a communication gap between the operating team and the patient regarding whether the stone in his right kidney was completely cleared or there has been some residual stone fragments left behind in the kidney.")
Take acknowledgment of receipt from the patient while handing over investigation reports. Record this fact in the discharge summary also. [In this case, the doctor (OP) specifically pointed in defense that in the discharge summary it was clearly noted "Investigations: All investigations reports were handed over to the patient."]

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Delay in calling the dermatologist on the day "bullious eruptions" was noticed in a hospitalized patient held as negligence

November 2017, 10(11):177-178

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Hospital clarifies that ambulance carrying the patient was "mobile ICU, fully air conditioned, and alsowith a doctor and nurse" - Need for extra care / caution

November 2017, 10(11):179-180

Hospitals/nursing homes must take due care and caution in sending the patients by ambulance. Ensure that the ambulance has the requisite equipment, medicines, doctors, and nurses, especially if the patient happens to be critical or unstable. (In this case, one of the allegation was that the hospitalized patient was sent for magnetic resonance imaging (MRI) to another centre in an ordinary ambulance which was unfit to carry the patient. Furthermore, the doctor joined the patient midway and the ambulance had to wait for a long time for the doctor stranded in the ambulance on roadside in scorching heat. The hospital (OP) very specifically pointed out in defense that the ambulance was a mobile ICU, fully air conditioned, and had a doctor and a nurse).
Whenever a critical hospitalized patient is sent outside for any investigation or if the patient is transferred, it is advisable to inform the other facility in advance and coordinate so that the inconvenience caused to the patient is minimal. (In this case, the patient who had meningitis was sent for MRI to another centre but it seems prior appointment was not taken because of which the patient had to wait for a long time for his turn according to the allegations made by the relatives).
Whenever a patient is charged by a hospital for services that are provided by another facility, the charging hospital must ensure that the patient is not made to pay again at the other centre. (In this case, the hospital (OP) had already charged the patient for MRI that was to be done at another diagnostic centre. One of the allegations was that the accompanying medical officer from the hospital (OP) failed to deposit the same with the diagnostic centre and the patient's relatives had to pay for the same).
In this era of super specialization admit/manage a patient within your area of expertise. If during the course of treatment, you realize that the patient is beyond your area of expertise then involve the other specialty or transfer the patient. (In this case, one of the allegations was that the doctor (OP) who was treating the patient for meningitis was a cardiologist and not a neurologist. The court rejected this allegation and appreciated the fact that the doctor (OP) had referred the patient to a neurologist from day one of hospitalization).
Arrive at a diagnosis and start a treatment only after performing the appropriate investigations. (In this case, one interesting allegation was that treatment for meningitis was started on admission but the same was confirmed with a CT scan on the next day).
Disclose the available facilities to the patient at the outset. It is advisable that hospitals/nursing homes should put a list of the available facilities at the entrance, reception, or any other conspicuous part or provide the patient a printed sheet with this information at the time of admission. (In this case, one of the allegations was that the hospital (OP) claimed to be a multispecialty hospital but did not have indoor MRI facilities).
Hospitals/nursing homes must follow strict sterilization protocols.
The dead body of the patient cannot/should not be withheld for any reason, least of all for financial reasons.

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Hospital refuses to give reports/bill to accident victim as bill was paid by vehicle-owner responsible for the accident - Unfair trade practice, holds court

November 2017, 10(11):181-182

Every hospitalized patient has a right to get copies of his/her treatment records, investigation reports, and the bills/receipt for the period of stay in the hospital. This holds good even if the payment of the bill has been done by someone else. However, the original bill/invoice/receipt must be given to the person/entity making the payment. (In this case, the patient, an accident victim, alleged that he was not given copies of his medical records and bills. The defense of the hospital (OP) was that the medical expenses were borne by the car owner who brought the patient to the hospital and was given the bills. The court observed that,though the car owner was bearing the cost of the treatment on behalf of the patient, the patient also had the right to get copies of his medical records and not providing the same was unfair trade practice. The court directed the hospital (OP) to furnish details of the treatment given and of the payment made for the treatment to the patient also).
It is the prerogative of the doctor to decide the treatment protocol but the same should be "accepted medical practice." In case there are more than one options and the patient is given a choice, the doctor must ensure that all the options offered to the patients are acceptable to medical science. Acceding to patient/relatives demand that is not indicated in medical science is sheer negligence. (In this case, the doctor at the hospital (OP) wanted to manage the patient conservatively but still gave the option to the patient whether he wanted surgery. If surgery was not indicated for this patient according to the doctor, then it was certainly negligence).
The doctor incharge of the patient must also sign on the DAMA/LAMA form. (In this case, the signature of the doctor incharge of the patient at the hospital (OP) was missing, and this was pointed as an instance of negligence. The court rejected this allegation holding that this was an "inadvertent mistake").
Patient must be duly informed about the findings of all investigation reports. (In this case, one of the allegations was that fracture which was reported in the CT scan was not disclosed to the patient. This was not accepted by the court).
DAMA/LAMA forms should record in detailthe fact that the patient is seeking DAMA/LAMA, adverse consequences of DAMA/LAMA have been explained by the doctor, and the original investigation reports/scans have been handed over to the patient.

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Part-refund of fees directed by court to a patient who discontinued treatment on his own - Is it a right precedent?

November 2017, 10(11):183-184

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