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2017| February | Volume 10 | Issue 2
April 17, 2017
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Transferring a patient or receiving a transferred patient - A double-edged sword for both the hospitals
February 2017, 10(2):17-19
Transferring a patient can be a double-edged sword for both the transferring hospital as well as the receiving hospital. The transferring hospital should clearly mention the reasons and condition of the patient during the transfer, whereas the receiving hospital should clearly document the patient's condition at the time of receiving the patient. There is always a possibility of either of the hospital trying to dump responsibility of mismanagement of the patient on the other hospital. (In this case, it was alleged that the patient had died much before the transfer and the receiving hospital had clearly mentioned brought dead on arrival. The court found this allegation to be true).
A surgeon cannot be both a surgeon and a qualified anesthetist at the same time. Law mandates that anesthesia should be administered by qualified anesthetists only. (In this case, the ENT surgeon (OP) was held negligent for administering local anesthesia which he said was a routine practice followed by other surgeons also. The court rejected this defence observing "One thing is certain that anaesthesia is supposed to be administered by anaesthetist who is an expert in the field, but in the present case, it is admitted that the anaesthesia was given by the surgeon himself").
Postoperative care should always be prompt and appropriate. (In this case, one of the allegations was that inspite of the ENT surgeon (OP) being repeatedly informed about postsurgical oozing of blood from the patient's ears, the ENT surgeon (OP) did not respond till the next day. The court found that the allegation was true and has very specifically and adversely commented on the same).
Delay in calling the appropriate consultants when the same is indicated is
negligence. (In this case, one of the allegations was that the surgeon (OP) called the anesthetist late inspite of falling oxygen saturation level and by the time the anesthetist arrived oxygen saturation was 10% and it was too late to actively do anything).
Every hospital must regularly audit and replenish emergency medicines/kit/facilities. (In this case, one very specific allegations was that the relatives were asked to buy emergency medicines as the hospital of the ENT surgeon (OP) did not have medicines in stock at the relevant period).
Every hospital and nursing home where surgeries are performed must have the requisite facilities to handle expected common complications of those surgeries. (In this case, the court remarked adversely as the hospital of the ENT surgeon (OP) did not have facilities to treat convulsions or handle unconscious patients).
Document both the name and dose of anesthesia drug. (In this case, the medical expert, had specifically reported to the court that "the nature and the dose of anaesthesia was not mentioned").
Consent must specifically record the type of anesthesia. (In this case, the medical expert had clearly expressed displeasure as the "the patients informed consent was not taken for the type of anaesthesia administered").
Medical negligence cases are very difficult to prove in a court for a lawyer, except when the doctrine of
res ipsa loquitor
(the wrong done speaks for itself and needs no further proof) is applied. In this case, the court has not specifically mentioned but impliedly applied this doctrine. The patient came to the hospital for a surgery but died due to complications unrelated to the said surgery.The court found that the cause of death mentioned in the post-mortem report was "pulmonary oedema and cerebral oedema," and that this aspect was not explained either by the ENT surgeon (OP) or by any other report available on the record. The court observed that it can be "impliedly concluded that this may be due to internal injury during the operation or due to delayed effect of anaesthesia administered by the surgeon himself." The court, therefore, held that some event happened in hospital which led to the death of the patient and for which the hospital (OP) alone was responsible.
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"Arbitrary policies" framed/followed by a government hospital - "Gross medical negligence," holds National Consumer Commission
February 2017, 10(2):20-22
A wrong internal policy of a hospital, institution, or medical association cannot operate as a defense in a case of medical negligence.This case is an excellent illustration of the aforesaid. A new-born infant was not admitted to the nursery intensive care unit (ICU) but in the general ward as it was the policy of the government hospital (OP) to admit "out-born babies" to the ward and not to nurseries. This policy was taken as a defense. Furthermore, this policy was sought to be justified on the ground that the number of babies born at the government hospital (OP) was very high, and hence, it was impossible to accommodate the babies born outside the hospital, and by admitting out-born babies, there were fair chances of introducing community-acquired infection inside the nursery, which would worsen the bacterial load of the nursery. The court observed that the said policy was "arbitrary, arrogant and discriminatory" totally unacceptable, and held the government hospital (OP) guilty of "gross medical negligence."
Doctors/hospitals need to take greater caution in representing themselves on stationery, advertisements, and so on. One wrong word or punctuation can make the difference. (In this case, the patient alleged that the hospital (OP) had misrepresented of having facility of "nursery ICU." The court rejected this allegation on perusing the discharge card, wherein it was clearly written "nursery and ICU."The presence of the word "and" made the difference).
Admitting a patient in a wrong facility/ward that is not indicated is
negligence. (In this case, the newly born infant needed "nursery ICU" facilities but was admitted in the general ward. This was held as negligence).
Admitting/accepting the patient without having the requisite infrastructure should be avoided even if the patient/attendants pleads or insists otherwise. If at all such a patient has to be admitted/accepted, a clear endorsement from the patient/attendants must be taken in the internal medical records and/or consent for the aforesaid. (In this case, the hospital (OP) had advised the patient who was critical and a high-risk case to get admitted in a bigger hospital but the patient insisted otherwise and delivery was therefore performed at the hospital (OP). Later on, the patient sued the hospital for negligence and one of the allegations was lack of facilities. Luckily, the progress notes filed before the court clearly show that the patient had refused even though she was referred to another hospital).
A proper consent recording the patient's condition and the probable risks is one of the best defenses in a case of medical negligence. In this case, the fact that the patient was a high-risk one and the various associated risks were very aptly recorded in the consent thus "My patient had leaking p/v since 02.03.04.Patient cord coming out from today morning. We are already informed that the weight of baby is very low and time of maturity is not completed (presently 30 weeks) and no guarantee that baby will survive. If baby survive then he should be admitted in nursery. Doctor tells us that presently completed pregnancy time is 30 weeks and baby's lungs not developed properly. Inspite of this we are ready for operation (L.S.C.S.) and tell to doctors to try her level best."
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A doctor scribbling a drug on a piece of paper could be inviting trouble
February 2017, 10(2):25-26
Document and record on appropriate stationery only. A prescription must be written on a letter head/prescription pad, investigations must be advised on requisition slip, and outpatient department (OPD) stationery must be used in the OPD. Doctors who have a wrong habit of writing prescription, advising investigations, etc. on any piece of paper and handing over the same to the patient/attendants could be inviting legal trouble. (In this case, the patient produced in the court, a small piece of paper with the name of a injection written in the doctors (OP) handwriting as proof that the said injection was given by the doctor (OP) to the patient causing disability to the patient).
Write the name of the patient and date specifically on each and every medical record. (In this case, the doctor (OP) accepted that the piece of paper produced by the patient in the court was written by him but it was not meant for this patient. Obviously, the piece of paper did not carry any name as the doctor (OP) had to clarify the same in the court).
Document and record visits, follow-ups, investigation advised, and so on religiously. (In this case, the doctor (OP) had admittedly prescribed medicines and advised investigations to the patient. The doctor's (OP) defense in court was that he neither advised/administered any injection to the patient nor was the patient referred to another doctor. It would have been advisable if the aforesaid was systematically documented).
Injections must be administered by duly qualified staff. (In this case, one of the allegations was that intramuscular injection was administered not by the doctor (OP) but by the compounder).
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Extra caution required in charging a "Discharge/Leave against medical advice"(DAMA/LAMA) patient
February 2017, 10(2):27-29
Follow proper billing protocols. Check and re-check bills of patients, especially the ones who are seeking discharge/leave against medical advice (DAMA/LAMA). (In this case, the patient had taken DAMA and thereafter made a specific allegation of being overcharged in the court. Admittedly, there was overcharging and after objections only one bill was rectified by the hospital (OP) and this was held as deficiency in service by the court).
Charge fees under proper headings. (In this case, the patient was charged under the head of anesthesia whereas no surgery was conducted. The hospital (OP) clarified that the said charges were the fee of critical care experts who were regularly consulted in ICU/HDU and were monitoring ventilators, hemodynamic, etc. The court observed that this was "not fair on the part of Opposite Parties (hospital) that they charged the doctors fee under the head of anesthesia").
Ensure proper records and audit of medicines and consumables used for an IPD patient. Even these are now being questioned in courts because of the high cost. (In this case, the court questioned as to how was the patient billed for 60-70 pairs of gloves daily as neither records were maintained nor was it disclosed how the number of gloves were counted on a particular day). ,
Inform the patient who is getting discharged specifically about fees charged for investigations whose reports are awaited. (In this case, one of the allegation was that the patient was charged excessively for investigations. The hospital (OP) stated that the reports of a few investigations done were awaited, and hence the patient was charged).
Requisitioning medicines in advance or at odd hours to meet any exigency is acceptable. Consequently, the medicines requisitioned at odd hours can be billed on the next day. In this case, the National Consumer Commission has approved the aforesaid very specifically.
Once the patient/attendants have indicated their intention to get DAMA/LAMA, delaying discharge leads to problems that should be best avoided. (In this case, the patient's son wanted the patient to be discharged but the same was delayed. In the night, the patient's son refused to give consent to put his mother on ventilator or shift to the ICU and the patient had to be shifted to ICU without any consent. Next day, the patient's son ensured that the patient was discharged against medical advice).
Explain to the relatives with compassion the rules of the hospital such as number of attendants permitted to visit, visiting hours, and so on. In case of ICUs, if the attendants insist on remaining with the patient, explain it to them why it is not permissible. (In this case, the patient's son very specifically stated that he was not allowed to remain with the patient at night in the HDU).
It is advisable that senior doctors or primary consultants should keep the relatives of the patient updated about the patient's condition regularly and must also be available for discussions. (In this case, the patient's son alleged that no one disclosed why medication was not changed inspite of the patient's serious condition and no senior doctor was called when he asked the doctor on duty in ICU to call the senior doctors as he wanted to discuss with him).
No consent of the patient/attendants is required to shift the patient to ICU/ventilator and vice-versa. (In this case, one of the defences of the hospital (OP) was that when the patient required ventilator support, none of the relative of the patient was present in the hospital nor gave oral consent and therefore the patient was not put on the ventilator. This approach was legally risky. The patient ought to have been put on the ventilator once the same was indicated without seeking any consent).
Advise and perform investigations rationally and with a purpose.
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Patients should not suffer due to the internal protocols/administrative formalities - National Consumer Commission
February 2017, 10(2):23-24
The internal protocols of a hospital cannot be a reason for failure/delay in following the medically indicated course of action. (In this case, the ESIC hospital (OP) took a defense that the patient who was diagnosed with heart enlargement was not referred to a tie-up super-speciality hospital as the eligibility letter was not issued by the local office of ESIC. The court rejected this defense observing that "in case, any permission etc. was required, or administrative formalities were to be fulfilled in pursuance of internal circulars/policy of the ESI Corporation, it was the duty of the OPs (ESIC hospital) to ensure that the needful was got done and arranged in time," it was their bounden "duty to ensure that the patients do not have to suffer on account of completion of administrative formalities only").
Discharging a patient prematurely is
negligence. (In this case, the court expressed surprise as the ESIC hospital (OP) had discharged the patient on the very next day of the patient being diagnosed with heart enlargement. The court observed that this was the precise reason for the patient getting readmitted on the sixth day of discharge and for her death on the fourth day of re-hospitalization).
Refer the patient to an appropriate facility when indicated. (In this case, the court held that the ESIC hospital (OP) was negligent for its failure to refer the patient diagnosed with heart enlargement to a super-speciality hospital especially as it did not have a Department of Cardiology).
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Failure to follow the standard/accepted protocol is negligence whereas failure to get the indicated/desired results may not be negligence
February 2017, 10(2):30-30
Failure to follow the accepted medical practice is
negligence whereas failure to get the indicated or desired results from a surgery, treatment, or investigation may or may not be negligence. This case very aptly points out to the aforesaid. The pathologist (OP) failed to report cancer twice. Later, another pathologist obtained the blocks of the first sample from which the slides had been prepared by the pathologist (OP), prepared his own slides and reported cancer. The pathologist (OP) tried to defend this omission by pointing out that he had failed as there is a possibility of different reports if one portion of the block from which section is prepared is cancerous whereas the other portion of the same block from which section is cut is non-cancerous. The pathologist (OP) was trying to pass out this shortcoming as something beyond his control and as such acceptable. The court while rejecting this defense observed that "being a Pathologist (OP), he knew that one part of the block could possibly be non-cancerous while the other part could be cancerous. Therefore, he should have cut sections and thereafter prepared slides, from several parts of the block in order to ensure that no part of the block remains unanalyzed and the cancer if present in any part of the block, is identified."
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Expert opinion of doctors having "higher qualifications and more experience has to be preferred"
February 2017, 10(2):33-34
Expert opinionin legal proceedings must always be taken of doctors with higher qualifications and experience. (In this case, expert opinion was given by 2 doctors, both conflicting ones, one by an MBBS doctor and another by a Deputy Civil Surgeon who was an MD (Pulmonary Medicine). The court rejected the report of the MBBS doctor and relied on the report of the Deputy Civil Surgeon observing thus:"Certainly the report by the doctor having higher qualifications and more experience has to be preferred").
Responding to an emergency with a sense of urgency is always appreciated by the court. (In this case, the patient's food pipe was choked. The ENT surgeon (OP) examined the patient, performed endoscopy and referred the patient to a higher centre on the same day. The court drew positive inference from the aforesaid).
Patient should be transferred to an appropriate facility, when indicated, neither early nor late.
All relevant medical records must be given to the patient during transfers.
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Precautions in handing over the "investigation requisition form" to the patient
February 2017, 10(2):31-32
In all cases where the patient is advised to perform investigations from another facility, two basic precautions are advisable. First, the investigation advised must also be recorded in the internal medical records, outpatient department (OPD) papers, prescriptions, and so on. Second, the copy of the requisition slip handed over to the patient must be prepared in duplicate, one copy must be given to the patient and the other must be preserved by the doctor/hospital. Cases where the patients are deliberately not producing investigation requisition slips/forms in court are increasingly reported. Even in this case, one of the defenses of the gynecologist (OP) was that the original tick marked laboratory requisition form wherein she had advised appropriate investigations were not produced in the court by the patient. The court observed that the original would be in the possession of the laboratory where the patient may have undergone the tests. The gynecologist (OP) had nothing to show in the court that she had in fact advised investigations.
Advise confirmatory investigations in suitable cases. (In this case, one of the allegations was that the gynecologist ruled out pregnancy without advising confirmatory test for pregnancy or β-HCG level).
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