Online since Monday, July 31, 2017
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An omission/commission is neither an error of judgment nor negligence in the absence of protocol/s requiring the doctor to do so p. 117
Follow the accepted protocols/standard operating procedures (SOPs). (In this case, the allegation was that the pregnant patient who was referred with suspected cardiac complaint and was investigated with routine electrocardiogram (ECG) only ought to have been advised further investigations for cardiac evaluation. The court while rejecting this allegation observed that "No protocol requiring the doctor even if he happens to be a cardiologist to conduct such tests on other person coming to the hospital with a complaint of chest pain, even when the ECG is normal has been brought to my notice. In any case, if there was an error of judgment on the part of the doctors in not subjecting the patient to offer cardiac investigations, in the absence of protocol requiring them to do so, it would not amount to a negligence or deficiency in the services rendered to the patient").
Advise appropriate investigations neither less nor more than what is indicated and "practically possible." (In this case, the patient who was 9 months pregnant, was referred with suspected cardiac complaint, investigated with routine ECG, diagnosed with acid peptic disease, and advised treatment on OPD basis. The patient died on the third day due to cardiac failure. The court rejected the allegation that the patient ought to have "been subjected to extensive cardiac evaluation to rule out a coronary artery disease" and further cardiac investigations ought to have been performed. The court observed that "It would be 'unrealistic' to expect the doctors in such a hospital to subject every patient coming with a complaint of chest pain to advanced cardiac investigations such as eco stress test, thallium test, angiography, or coronary, etc").
Not sending medical records to the next hospital during transfer and not insisting for records from the previous hospital at transfer - Both hospitals held negligent p. 119
Every patient transferred should be given complete details of the treatment/investigations upto the time of transfer. This duty of the transferring hospital also extends to the medical records prepared in transit. Specifically record the documents or the copies given to the patient/attendants in the transfer/discharge note and take the acknowledgment of the patient/attendants having received the same. On the other hand, the duty of the receiving hospital is to insist on medical records of treatment/investigations, and in case the same is lacking, this fact must be specifically documented. Emergencies are exceptions. (In this interesting case, the patient was transferred to three hospitals (OPs) and died in the third hospital. The first hospital (OP), a railway hospital, admittedly transferred the patient with just a referral letter and took a defense that they had followed their institutional protocol wherein it is not mandatory to give medical records to the patient who is transferred.The second hospital (OP) started and continued the treatment without insisting on the medical records of the first hospital but stated that, while transferring the patient to the third hospital (OP), the medical records of treatment done therein was provided to the patient. The court held the first hospital (OP) negligent for not providing treatment records while transferring and the second hospital (OP) negligent for starting and continuing treatment without insisting on the medical records of the earlier hospitalization. The court also rejected the defense of the second hospital (OP) that they had provided their medical records to the patient at transfer to the third hospital (OP) simply because the same was not recorded in the discharge summary.)
Internal SOP's / guidelines of a hospital / institutions should be in tune with the accepted medical practice prevailing at that point in time. Efforts must be made to revise and update internal SOP / guidelines. (In this case, the hospital (OP), a railway hospital, took the defense that it was their institutional policy to transfer patient with just a referral letter without any treatment / investigation records. The court held that following this SOP was negligence.)
A patient can be shifted to another hospital immediately, without medical records, if it is an emergency. But at the first available opportunity, the transferring hospital must ensure that the requisite medical records reach the other hospital. The court has aptly observed on this aspect thus: "The actual shifting of the patient, if immediately required, need not be deferred for the record but it has to be sent to the hospital immediately after the patient is shifted so that the doctors in the hospital where the patient is shifted, are able to give further treatment taking into account the treatment given in the referring hospital and the condition and the symptoms of the patient recorded by the doctors in that hospital'.
What should a doctor do, when a patient seeks advice/opinion/follow-up on telephone? p. 121
Nowadays, the trend is to seek advice and opinion of the doctor on telephone. Telephonic advice is risky and should best be avoided. (In this case, the patient who was discharged after surgery sought telephonic advice, but the doctor (OP) advised that the patient should be brought to the hospital. This is legally the safest approach).
Treatment protocol must be decided by the doctor and none else. Requests made by the patient/attendants must be taken into consideration, but the final decision must be taken by the primary doctor only after takinginto account all the relevant factors. (In this case, the repeat ultrasonography (USG) post discharge showed an inflammation in the intestine. It was stated by the doctors (OPs) that on the request of the patient's relatives, he advised that injection should be administered by a local doctor but due to lack of monitoring it resulted in perforations and peritonitis. This could have been avoided if the patient was advised hospitalized instead, as indicated).
Difference between clinical/physical examination and investigation reports, a classical dilemma - Reliability should be decided on case-to-case basis p. 122
The classical dilemma of accuracy of an investigation vis-a-vis the clinical findings cannot have an answer in black and white. It depends on a case to case basis. This case is an excellent illustration of the aforesaid. The orthopedic surgeon (OP) stated in defense that arthroscopy showed anterior cruciate ligament(ACL) tear, whereas magnetic resonance imaging (MRI) had clearly reported an intact ACL and he relied on the arthroscopic finding and repaired the ACL. The court held him negligent quoting medical texts that "in case of ACL tears, diagnostic accuracy for both clinical examinations and MRI examination came out to be 90%"and that "The MRI report is quite accurate than clinical examination" in such cases.
Extending a surgery beyond the original consent must be done with caution only in emergencies and for justifiable reasons and not merely because postponing it may be uncomfortable to the patient, physically or financially. (In this case, the patient was advised PCL repair based on pre procedure MRI reports. According to the orthopedic surgeon (OP) during arthroscopy he found a torn ACL which was not seen in the MRI and he extended the surgery beyond what was agreed. Two interesting but legally flawed defences were taken in the court. The first one was that "It is never the principle of any surgeon to leave any surgery half done. Whatever repair has to be done, is done in the first operation and trauma to the knee may injure it more."Such an extension is clearly impermissible as laid down by the Supreme Court in Samira Kohli's case. The second one was that he had explained to the patient that "any other defect seen during the arthroscopy would be dealt with therein, because the surgery cannot be closed up and opened again, if more than one defect is seen." But this was not recorded in the consent).
Inform the patient the true extent of the problem as well as the cost and modality of the treatment in a language that the patient understands and without use of technical terms. Record the aforesaid in consent if it is taken. (In this case, one of the allegations was that the orthopedic surgeon (OP) had not explained to the patient properly about the surgery, expenses involved, and repercussions. In fact, the patient went on to allege that he was told that the surgery is minor and will not take more than 15-20 minutes, but the surgery took more time and this resulted in extended stay at the hospital and extended bed rest at home).
Explain to the patient specifically that all investigations are merely diagnostic tools and not the final diagnosis. The doctor arrives at a diagnosis after referring and correlating all reports and the diagnosis may very well be different from the reports. (In this case, the defense of the doctor was that the arthroscopic findings were different from the MRI findings and therefore the procedure was changed. The orthopedic surgeon went on to remark sarcastically that "The patient is trying to get his MRI report treated, but in medical science, it is patient who has to be treated and not the report." It would have been better if the aforesaid was explained to the patient earlier).
Difference between "admitting doctor" and "treating/principal/primary/in-charge doctor"-Need to explain/record this specifically p. 124
Hospitals must clearly distinguish between the doctor admitting the patient -the "admitting doctor" and the doctor under whom the patient is admitted - the "treating/principal/primary/in-charge doctor." The admission form must clearly indicate this distinction, have clear designated spaces for recording the names of both, and the patient/attendants must be clearly and specifically communicated about the aforesaid. (In this case, the allegation was that the patient was treated by an incompetent doctor who specialized in tuberculosis and respiratory diseases. The court rejected this allegation after perusing the medical records which revealed that this doctor was only the "admitting doctor" and thereafter other doctors who were experts in surgery and general medicine had treated the patient. Proper distinction in admission form and proper communication with the patient/attendants could have avoided this unpleasant fracas).
Record correct and complete history of the patient. (In this case, one of the prominent allegations rejected by the court was that, although the patient was admitted at the hospital (OP) for problems in her appendix, she was not treated for the same. The court relied on the history and progress report which clearly recorded that the patient had come to the hospital (OP) with complaint of vomiting, diarrhea, pain in the abdomen, and general weakness for the past 3 days).
Medical records are the best weapons not only in the defense of the treating doctors/hospitals but may also prove useful to other doctors/hospitals consulted by the patient earlier or later. This case is an excellent illustration of the aforesaid. The allegations against the hospital (OP) were that the patient had problem with the appendix but the same was not treated, no treatment was given for higher total leucocyte count (TLC) count and the patient was transferred to the higher center in a critical condition. The court rejected all these allegations referring to the medical records of the higher center wherein it was clearly recorded that the patient was not treated for appendix, was not brought in a critical condition, and on investigations her TLC was found to bereduced.
Refer the patient to a higher centre when indicated.
Failure to provide duly armed bed resulting in patient's fall from bed and subsequent failure to attend the patient promptly, both instances of negligence p. 126
Beds must have adjustable side-supports and the hospital staff must ensure that they are properly adjusted according to the condition and need of the patient. This is all the more necessary in cases of patients who are critical, old, and unconscious. (In this case, the patient, who was diagnosed with dengue fell from the bed, suffered head injuries, and died later. The court held that not providing duly armed bed was negligence, especially as such patients are advised to avoid injuries).
Once a mishap has happened appropriate corrective steps must be taken with a sense of urgency. While accidents are at times pardonable failure, or delay to take corrective steps after an accident is certainly not. (In this case, the patient diagnosed with dengue fell from the bed and the doctor (OP) failed to attend and examine the patient immediately.Computed tomography (CT) was performed about 8 hours later and there was delay in transferring the patient to a higher center. The court held that failure to provide proper and immediate treatment to the patient after fall from the bed was negligence).
In appropriate cases, it is advisable to get investigations done from two different facilities.(In this case, the investigations of the patient suspected to be suffering from dengue was done from the in-house laboratory of the hospital as well as an external laboratory).
Once a patient is hospitalized, family members/attendants do not have any role to play in patient care and cannot be blamed for any unpleasant incident. (In this case, the patient who was diagnosed with dengue fell from the bed and suffered head injuries. It seems that the doctor (OP) was trying to pass the buck by stating that the patient was looked after by his family members in the hospital room. The court obviously did not take this seriously).
Consent has no role to play in an action/decision that is otherwise negligence. Not taking consent where consent ought to be taken or taking an improper consent, both are additional instances of negligence. (In this case, the doctor (OP) stated in defence that patient's consent was taken for treatment. Obviously, this was of no use as the allegation was that the patient had fallen from the hospital bed and immediate treatment was not provided thereafter).
Trolley carrying the child was pushed rashly, alleges father - Court observes that it shows that the staff was acting promptly for taking the child for CT scan p. 128
Indian courts are far too accommodating when a doctor/hospital acts bonafide in an emergency. Mistakes and errors are often overlooked. In this case, the patient's father sought to portray an incident whereby the nursing staff at the hospital (OP) pushed the trolley after computed tomography (CT) scan in such a manner while taking turn in the corridor that it resulted into breaking of intravenous(IV) fluid bottles, one being given to the child and the other lying spare on the trolley as an instance of rashness, recklessness, and negligence. The hospital (OP) denied that such an incident had ever happened. The court very interestingly observed that if this allegation was true, it supports the case that "the hospital staff was acting promptly for taking the child for a CT scan."
Recording the complete and correct history of the patient is important, especially before hospitalization and/or during the first consultation. (In this case, the hospital (OP) had clearly recorded at the time of hospitalization that the child was brought to the emergency with history of "Excessive crying for one day, Turns blue on crying X 1 day, Altered sensorium since morning." The court repeatedly referred to this aspect while holding that the hospital (OP) was not negligent and went on to reprimand the parents of the child in delaying treatment).
Do not delay in transferring the patient once the advice/decision to transfer the patient is taken. (In this case, one of the allegation was that even after the neurologist advised that the patient should be transferred to another hospital, 2 precious hours were lost in consulting other doctors and hospital (OP) authorities).
Failure, refusal, delay, and such other misdemeanours on the part of the patient/attendants must be duly recorded and brought to the notice of the court. (In this case, the court held that the parents of the child had failed to get the child treated well in time and reported only when it was an emergency even though the child was having cyanotic spells since1.5 years of age. The court further drew adverse inference as the child came to the hospital (OP) about a month after the first consultation although he was advised to report for surgery at the earliest,and furthermore, during this second consultation the child was advised to come on the very next day; however, the parents brought the child only on the third day and that too in an emergency).
Record vital parameters at regular intervals. (In this case, the court rejected the allegation that the oxygen cylinder used by the hospital (OP) was empty at the relevant time relying on the oxygen saturation level recorded at 12.00 noon (85%) and 2.00 pm (100%)).
Take care and caution in ensuring proper oxygen supply.
Consultants must be called when indicated and in case of emergencies, at the earliest.
MCI warns the doctor, but the court refuse to give it importance observing that the "matter has been considered there cursorily" p. 131
A doctor can be sued before various courts (civil, consumer, criminal, and constitutional), the regulatory body (Medical Council of India), and other statutory authorities (Human Rights Commission, Clinical Establishment Commission). Each of these is independent and can take a view contrary to or inconsistent with the view taken by others. In this case, the State Consumer Commission did not give any importance to the fact that the ophthalmologist (OP) was held negligent and warned by the MCI. The court observed that "matter has been considered there cursorily without calling any expert opinion about the surgery and only this much is said that the doctor warned to be more careful in future which is minimum expectation from every person."
Proper documentation is the best defense for a doctor in a case of medical negligence. Simple precautions such as writing the complete history can make a huge difference. This case is an excellent illustration. The patient alleged that he lost his eyesight post surgery. The court rejected this allegation relying on the prescription of the ophthalmologist (OP) of the first day of consultation, about 2 days before the surgery, wherein he had recorded that there was a loss of vision, hand movements upto 2 meters could be seen by the left eye,and there was a history of injury in road accident.