Page Nos. 1-18
Online since Friday, January 29, 2016
Don't charge the patient to perform a corrective surgery for a negligent act - National Consumer Commission p. 1
Whenever you discover that you have been negligent and the patient has been harmed as a result thereof, take appropriate corrective steps at the earliest. It is advisable that the patient should not be charged for such corrective steps. The court seems to be suggesting this course of action in this judgment. (In this case, admittedly, the surgeon (OP) had clipped the common bile duct (CBD) instead of the cystic duct (CD), and later, the patient was asked to pay for the corrective surgery. The court has observed that "in case there was negligence on the part of OPs (surgeon and hospital) for conducting the first surgery, then it was their duty to do the corrective surgery without charging anything from the patient.")
A doctor can withdraw from a patient who is not willing to pay fees. In case of hospitalized patients, they can be referred to another government/charitable facility or requested to take a discharge. In this case, the court has carved out an exception to the aforesaid. The court has held that when the surgeon (OP) was admittedly negligent in performing the first surgery and a second corrective surgery was planned to undo the wrong done during the first surgery, it was improper on the part of the surgeon and hospital (OPs) to insist for fees of the corrective surgery, once the patient had shown her unwillingness to pay the same. ,
Do not admit a patient in the first instance if the requisite facilities/consultants are unavailable at the hospital. In case a hospitalized patient moves out of the expertise of the treating doctors/hospital, transfer the patient to another appropriate facility at the earliest. (In this case, one of the allegations was that the patient was readmitted for post-surgery complications and referred to PGI Chandigarh after she was kept hospitalized unnecessarily for about 2 weeks. The court held that this was negligence.)
Surgeons must follow the standard protocols before closing the patient after the surgery is finished. (In this case, the surgeon (OP) had clipped the CBD instead of CD, leading to the post-surgery complication of obstructive jaundice. The court observed that "it was the duty of OP No. 2 (surgeon) to check whether the clipping was proper before closing the body because it was an open surgery.")
"Contemporaneously" prepared medical records - A legal requisite p. 3
Medical records must be prepared "contemporaneously," that is, when a medical action is performed/advised. In this case, the court took specific note of "the OPD paper contemporaneously prepared by Dr. Vaingankar."
Courts in India generally trust medical records unless gross fabrication or manipulation is done by the doctor/hospital. This case is an excellent illustration of the aforesaid as all the allegations of the patient were rejected on the basis of medical records. The court went to the extent of observing that "there was no reason for Dr. Velingkar (orthopedic surgeon - OP) to prepare wrong records."
Elicit complete and correct history from the patient and record the same in the patient's medical records. (In this case, the patient alleged that the implant had failed because the orthopedic surgeon (OP) had failed to immobilize the patient's hand. The court rejected this allegation and accepted the defense relying on the history recorded in the OPD paper by the orthopedic surgeon (OP) that the patient had come in an emergency as he had put full weight on the left hand while getting up from bed which resulted in the refracture. The court also referred to the OPD paper of the first follow-up wherein "no history of pain" on that day was recorded.) ,
Care and caution is required in handing over any original medical record, investigation report, X-ray plate, and so on to the patient. Duly record this fact in the medical records and take acknowledgment from the patient/attendant of having received the same before handing over. Extra care is required while handing over such records during discharge. (In this case, one of the allegations was that the X-rays taken by the orthopedic surgeon (OP) were not given to the patient.)
Need to keep consultants from other relevant specialties present in the OT during interventions p. 5
Medical science accepts that there are instances where no clear demarcation exists between privileges of different specialities. Doctors of two or more specialities are legally competent to perform certain interventions. In all such interventions, if you are in a dilemma on whether to keep a consultant from the other speciality involved or not, it is rather advisable to keep the consultant of the other speciality present in the OT during surgery. Specificallly record his/her presence in the operation notes. (In this case, the doctor (OP) had cut a nerve during surgery resulting in partial paralysis, while removing a tumor in the thoracic cavity. The court held that there was limited negligence on his part "to the extent that at the time of performing the said surgery, a neurosurgeon had not been called.")
In all interventions, proper consent of the patient must be taken; it must be preserved with the medical records and produced in the court, if required. (In this case, the court has drawn an adverse inference as the consent letter was not produced before the court.)
Record surgery notes, preserve them with the medical records, and produce them in the court, if required. (In this case, the court has drawn an adverse inference as the operation notes were not produced before the court.)
Doctor should not "just blindly obey the wishes of the patient" - Doctors duty when a patient is reluctant p. 7
Failure or refusal of patient to follow medical advice due to financial constraints is commonly experienced by doctors and hospitals in India. The first elementary precaution that must be taken in all such cases is to specifically record this fact in the prescription, discharge card, and/or other medical records. Next, in case the consequences are grave, a written endorsement must be taken from the patient/attendant. In appropriate cases, the patient must be referred to a government/charitable hospital. [In this case, the defense of the orthopedic surgeon (OP) was that the patient who had fractured his leg bone was advised to undergo surgery, but he refused to do so due to financial constraints, and therefore, plaster of Paris (POP) cast was applied. Later, the patient was asked to take X-ray after removing the POP cast; but he again refused to do so for the same reason. The orthopedic surgeon (OP) was held negligent as he had nowhere recorded the advice or the patient's refusal.
A doctor must certainly hear the patient and at times even give concessions or agree to requests made by the patient. But each and every demand of the patient need not be followed, especially if the same is not indicated in medical science. (In this case, the orthopedic surgeon's (OP) contention was that he had correctly advised surgery and an X-ray after removing the POP cast, but the patient refused both on the ground of his financial incapacity. The court rejected this defense of the orthopedic surgeon (OP) observing that "it was the bounden duty of the doctor to decide the correct line of treatment; doctor wouldn't just blindly obey the wishes of the patient, which itself would be unethical.")
The unanswered question - What must a doctor do when the medical texts differ with the literature accompanying the drug? p. 9
Instructions written on the packaging or in the drug insert must be read and followed assiduously. Failure to do so is negligence. Doctors face a dilemma when the course of action prescribed in standard medical texts is different from the one prescribed in the drug insert. This question was indirectly raised in this case and could have been answered authoritatively by the court, but the patient could not produce any medical text to rebut the doctor's (OP) defense that he had followed the instructions written on the drug strip. (In this case, the patient had alleged that the failure of the doctor (OP) to perform hypersensivity test before prescribing the drug Gatifloxacin was negligence. The doctor's (OP) defense that "no special instructions were mentioned on these drug strips about doing hypersensitivity test" was accepted by the court. The court has observed that the patient "failed to rebut by bringing authentic material on record for sensivity test.") ,
Keep yourself updated on the drugs that are banned by the authorities in the State where you practice. In India, every State has the authority to ban a particular drug, and therefore, a particular drug permitted in a State could be banned in another. (In this case, the patient produced in the court a copy of the Gazette of India published on 16/03/2011 to demonstrate that Gatifloxacin was banned throughout the country and material downloaded from the website to demonstrate that this drug was already banned in 2006 in USA. The allegation seems to have been rejected as this drug was prescribed to the patient on 15/09/2008.)
Caution and contemplation is required in first choosing the drug, and then in deciding the dose, the route of administration, and when it should be administered. [In this case, the court rejected the allegation that tablet Gatifloxacin was not the indicated drug for Urinary Tract Infection (UTI) and therefore the patient suffered from Steven Johnson Syndrome (SJS) with Toxic Epidermal Necrolysis (TEN). But the court held the doctors (OPs) liable for failure to explain "whether the dose of steroid 8 mg per 8 h IV administered by opponent nos.2&3 (doctors) was adequate or, otherwise, early in the course of disease."] ,
Not shifting or delay in shifting a patient to the Intensive Care Unit (ICU) when indicated is negligence. (In this case, the patient was shifted to the ICU on the sixth day of admission, though the patient was required to be treated in the ICU immediately on admission as per medical texts. The court held this as negligence.)
History of the patient must be duly recorded in the medical records. (In this case, the court has very specifically recorded that the doctor (OP) had "failed to record case history of the patient whatsoever in the prescription." The doctor (OP) had stated in the court that the patient had given history of fever with chills and burning micturition, while the patient differed stating that she had given history of "cough and cold.")
It is advisable that the patient's attendants/relatives must be explained the reason/s before shifting the patient to the ICU/ICCU. (In this case, one of the defenses was that "seriousness of the patient's condition was explained to the patient's relatives, and thereafter, the patient was shifted to the ICU.")
Perform sensitivity test in case of drugs where the same is indicated. (In this case, one of the allegations was that tablet Gatifloxacin was prescribed without any pre-test. This allegation was rejected by the court as the same was not prescribed by the medical texts.)
Prescribing a drug without performing the requsite investigations could be held as negligence. (In this case, the court held the doctor (OP) negligent for prescribing Gatifloxacin without carrying out the diagnostic test to assess the gravity of UTI.) ,
Standard medical practice or accepted medical practice is the one that is prescribed in standard medical texts and should be followed in each and every aspect of medical practice. (In this case, the doctor (OP) skipped the initial urine culture before prescribing Gatifloxacin as laid down in the textbook and this was held as negligence.)
Patient's request to play CD in court to expose the doctor disallowed - Pointer to a bigger problem p. 12
Video/tape recording of conversation has become very easy today and is being rampantly used and the recordings are also being produced in courts as evidence. Patients are resorting to such tactics and doctor/hospitals need to be vigilant about the same. Loose talk with or before the patient/attendants must be avoided. Please remember that law in India prohibits only recording the conversation on the telephone without obtaining prior permission from the authorities. In this case, as a last resort, the advocate for the patient submitted that "CD is on the record, which needs to be played," but this request was rejected by the court.
Information given by the patient to a doctor is not always sacrosanct. Doctors must always keep in mind that patients can also misguide, give false history, and/or conceal the truth. This caution is all the more required in cases of pregnancy, injuries, and so on. (In this case, the court agreed with the defense taken by the gynecologist (OP) that the patient did not speak her mind openly, misled her, and concealed symptoms of pregnancy, perhaps as she wanted to get rid of her pregnancy.)
It is advisable to ask last menstrual period (LMP) and suggest pregnancy test in women patients of child bearing age. (In this case, the patient had alleged that the gynecologist (OP) was negligent because she had neither checked her pregnancy nor advised any pregnancy test. The gynecologist (OP) pointed that the patient was asked about her LMP date and pregnancy test; the patient had disclosed that it was somewhere around "27 August ??, 27 September ??," and this was recorded in the prescription.) ,,
Do not confirm a diagnosis, start treatment, or prescribe a drug without perusing requisite investigation reports, even if the patient insists on starting treatment without the reports. (In this case, one of the defenses was that the patient had not performed the abdominal scan as advised by the gynecologist (OP); during the first follow-up, she assured the gynecologist (OP) that she would get it done shortly within 2-3 days and requested that in the intervening period. she should be given medicines.)
Enquire specifically and record in the medical records about the previous treatment taken by the patient, especially during the first consultation and while hospitalizing the patient. (In this case, the gynecologist (OP) had enquired the patient about her previous treatment and had duly recorded the same in the patient's history. This proved of great help in defense in the court.)
Duly record the oral complaint/s made by the patient. (In this case, the gynecologist (OP) had duly recorded in the prescription slip that the patient complained of fever and irregular period, and this proved to be of great help in defense.)
Greater caution and vigilance is required in case the patient has not followed the earlier medical advice. Duly record the fact that medical advice was not followed.
Record the diagnosis, provisional or final, in the medical records.
At times, the medical records could save an innocent doctor/hospital in a legal proceeding. (In this case, the gynecologist (OP) who was first consulted by the patient before consulting PGI Chandigarh was able to expose the lies of the patient, thanks to the OPD slip of PGI Chandigarh wherein it was clearly recorded that the patient complained of fever and regarding LMP, "?? Not known" was recorded. The patient had clearly denied that she had given similar history to the gynecologist (OP).)
Is discharging a patient without waiting for HPE report negligence? p. 15
A patient need not be kept hospitalized till the histopathology (HPE) report is ready/received. The patient should be discharged when indicated with a clear advice on the discharge card to contact or come for follow-up after the report is received. (In this case, the patient's allegation was that the patient was discharged without being given the HPE report. The court rejected this allegation observing that "histopathology report usually takes 3-4 days time and there was no need to keep the patient hospitalized after resection of the tumor.")
Mistake in reporting/recording the wrong side of the patient could be construed as negligence, though in this case, the court has held otherwise. (In this case, the pathologist had admittedly mentioned the wrong side of tumor in the report. The court overlooked this mistake as the report was correct and the mixing up of the sides was "immaterial.")
A doctor who adopts a particular course of treatment or performs an intervention based on an investigation/diagnostic report which later on proves wrong is not negligent. But once this error is discovered, there should be no delay in taking the appropriate remedial measures. (In this case, the doctor (OP) was not held negligent for relying and acting upon an HPE report which later on proved wrong. When the problem recurred, the doctor (OP) was quick in referring the patient to the appropriate consultant.)
Patently, wrong report by a pathologist/radiologist could be construed as negligence. (In this case, the court held that the pathologist who had wrongly reported the tumor as hamartoma instead of cancer was negligent. But the court was unable to pass any adverse order against this pathologist as he was not sued by the patient.)
Referring the patient to an appropriate specialist when indicated is always viewed favorably by the court. (In this case, the doctor (OP) had given wrong treatment to the patient relying on a wrong HPE report. Six months later when the problem reappeared, the patient was immediately referred to an oncologist. The court approved this conduct.)
Prescription slip must record 'clinical evaluation' also, holds National Consumer Commission p. 17
Clinical examination must be performed and the findings thereof must be duly recorded in the medical records/OPD ticket/prescription. (In this case, the court held the gynecologist (OP) negligent for failure to perform clinical evaluation of the patient, as there was "nothing mentioned in the medical record about per-vaginal and per-specular (PV&PS) examination.")
Issue death certificate only when absolutely sure about the cause of death. Otherwise, it could be held as negligence by the consumer court and could also invite criminal prosecution. [In this case, the gynecologist (OP) had certified that the "cause of death was due to the possibility of air embolism." Later on, the court questioned why postmortem was not suggested.]
Failure to refer a dead body for postmortem could be viewed adversely by the court. (In this case, the doctor (OP) had given death certificate, though he was not sure about the cause of death. The court observed that "many doubts are created in our mind, as to why PM was not suggested by the OP (doctor), to prove its bonafide intentions.")
Law expects doctors/hospitals to take extra care and precaution and to be more vigilant in case of high-risk patients. (In this case, the patient had undergone two previous cesareans. The court observed that in this circumstance, the doctor (OP) should have been "very vigilant" while performing D&C.)