Medical Negligence

Negligence in Medical Practice & Deficiency in service

BY: DR.C.B.JANI M.D.( PATHOLOGY), M.D.( FORENSIC MEDICINE) D.N.B.( FORENSIC MEDICINE), LL.B. Professor ,Dept. of Forensic Medicine, P.S.Medical college & s.K.Hospital, Karamsad.

[A] Introduction

[B] Prevalence of “consumer” cases against medical professionals

[C] Medical aspects of patient care & Negligence

[D] Solutions : 1. Precautions at individual level 2. Defence 3. Precautions at the level of Association.

What amounts to deficiency?[ Civil matter] As per S.2(g) of The CPA, 1986- any fault, imperfection, shortcoming or in adequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. What amounts to medical Negligence?[ Criminal matter] It must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. ( As observed by SC in Jacob Mathew v State of Punjab)

CAUSE OF ACTION BY PATIENT: 1.No cure / delay in cure 2. Disease 3. Deformity 4. Disability of a) Loss of earnings b) Quality of life 5. Death.( Action by relative) MODE OF ACTION BY PATIENT: 1. Criminal case: I) S.304- culpable homicide not amounting to murder. II) S.304-A- Causing death by rashness and negligence.

2. Civil case: As per law of torts ( civil wrong) 3. Consumer case- The CPA, 1986. [B] PREVALENCE OF “ CONSUMER” CASES AGINST MEDICAL PROFESSSIONALS:( Till 1995) I) State wise: - Gujarat- 15

-Karnataka- 09

- Uttar Pradesh-02

- Tamilnadu-13

- Punjab- 08

- Andhra Pradesh-02

- Kerala-13

- Rajasthan -06

- West Bengal -02

- Maharashtra-12

- Bihar -01

- Haryana-11

- Assam-01

- Orissa-10

- Madhya Pradesh-01

II) Specialty wise: -Surgery - 4/ 32

-Laboratory-1/1

- Orthopedics- 4/ 18

- General Physician-1/6

- Medicine - 2/ 17 - Transfusion Medicine- 2/6 -Pediatrics-1/4 - Hospital Administration-1//3 - ENT- 0/1 -Ophthalmology-0/8 - Dermatology-1/1 - Radiology- 0/3

[C] MEDICO LEGAL ASPECTS OF PATIENT CARE & NEGLIGENCE 1. Physician Patient relationshipA medical professional give “ invitation to offer” to a class of population through advertisement in media, hoarding at clinic/ hospital and visiting cards in which he mentions: a- Qualification b- Type of services offered- clinic / hospital c- Hours and Days for consultation d- Services in MLC. A) Qualification:Obtained by passing examinations, not fellowship or membership.( As per Indian Medical Degrees Act, 1956)

[C] When the duty is established? - Registration of the case - expressed willingness to treat. - Telephonic contact- If offer accepted - responsibility stands. - if suggested for referral -no responsibility. - Duty till patient shifted in “safe hands” / patient discontinues / doctor refers to another doctor giving some time to patient. --Case: Complaint No. 349/1992 at Gujarat SCDRC “Complaint filed alleging negligence against Gynecologist in a case of patient with 8 months pregnancy under his care who developed fever and jaundice. On telephonic contact by patient he had suggested to go to a physician since he was not an expert in that line. Later on patient expired. In these circumstances, no responsibility can be pointed on the opposite party.”

2. Consultation on holidays: Case:- F.A. No.739 / 1994 in NCDRC A patient of epilepsy was referred to a neurophysician who had attended him and prescribed some drugs. As after some days patient’s condition worsened , he was contacted at the middle of night. Doctor expressed his inability to come and see the patient saying “he does not see patients on Saturdays and Sundays”. Patient was taken to other hospital and died after some days there.In the judgement of the case commission held that “doctors also need rest and relaxation and can’t be held deficient in service only on this ground.” 3. Fees and charges: Section 3.7 of Chapter 3 of the Indian Medical Council( Professional Conduct, Etiquette and Ethics) Regulations, 2002 clearly mentions about “ Display of fees and other charges”. Case:- R.P. No 339 of 1993 in NCDRC “--If a person whose services have been hired or availed of has levied

Excess charge, that will not be sufficient to constitute deficiency in service.” -- Case:- F.A.No. 243 & 265 /1992 in NCDRC “ How much to charge as fees for medical practitioner even though it may appear unreasonable and unjustifiable, is upto individual practitioner.” --Case:- Appeal No.82/ 1992 in Gujarat SCDRC “ No charge shall be taken for ‘future medico legal service’ from the patient.” 4. Infrastructure, facility, staff etc.: The hospital shall have adequate residential medical and paramedical trained staff, equipment, facility for monitoring the patient and resuscitative measures.In O.P. No 154 / 1997 in NCDRC it was alleged that “due to lack of adequate facility of staff, equipment etc patient died negligently.” Concerned party succeeded in disproving the allegations.

5. Consent in medical practice: To be legally valid it shall be free, voluntary, clear, intelligent, informed, direct and personal, for all examinations, investigations and treatment. -Full Disclosure: all aspects shall be explained not only a part and it is to be documented. - Therapeutic privilege: exception to above, provided the interest of the patient has to be of prime concern. - Informed refusal: The physician has a duty to disclose adequately and appropriately to the patient, the risk or possible consequences of refusal to undergo a test or treatment. - History taking & deliberate concealment by patient:a ground of defence in F.A. No.205 / 1992 in NCDRC. -Case- F.A. No. 597/1995 in NCDRC- Surgeon - deficiency in service-

- for “ consent not obtained for surgery though termed as reexploration”. -Doctrine of “ Volenti Nonfit For Injuria” applicable if the harm is done with valid consent. 6. Choice of therapy: - right of practitioner to choose a particular method which is to be decided after considering: a. condition of patient b. availablity c. merits and demerits - Surgical V/S Non surgical management - Case-Dr.N.T.Subrahmanyam & otherss V/S Dr. B. Krishna Rao & Willingdon Nursing Home in Tamilnadu SCDRC

-Alleging negligence in treatment and care of a patient with upper GIT bleeding in using balloon temponade and not sclerotherapy, in transfusing excessive blood leading to over loading and cardiac de compensation. Commission held that: “ The choice of the most appropriate effective method in a particular case depends on the general condition of patient and experience of doctor.” “ When there are genuinely two responsible schools of thought about management of a clinical situation, the courts do no greater disservice to the community or the advancement of medical science than to place the hallmark of legality upon one form of treatment.”Case- Complaint No. 114/ 1990 in Kerala SCDRC- The commission held the hospital and Orthopedician jointly and severally liable to pay compensation in case where patient was asked to purchase of compression plate and then instead doing S.S. wire fixation, leading to delayed union, abscess formation arising from drill bits & wire pieces inside.

-One Surgical method V/S other surgical method: - Case- O.P. No. 215 /2000 in NCDRC- a case of surgery for correction of myopia. Patient developed complications of LASIK( Laser Assisted In Situ Keratomileusis) Technology in form of central island, monoocular diplopia etc.Allegation of negligence by not using Laser Technology PRK( Photo Refractive Keratectomy). Commission held that “ Both the methods have merits and demerits.Complainant was informed of procedure of operation and consequences and hence no negligence can be established.” 7. Failure to cure or no cure: -Case- F.A. No. 237 / 1992 in NCDRC- Complaint filed alleging negligence and delay in performance of operation to fix the bones of leg, and also on the grounds that the complainant desired to get operation done by Orthopedic surgeon.The complaint was dismissed as it was held that there was no delay in performance of operation, the surgical technique adopted was an accepted one and the complainant had given

voluntary consent for the operation by the surgeon who is a Trauma Surgeon and thus qualified to do this type of Orthopedic surgery. - Case- Comp.No. 130/92 in SCDRC ( Karnataka)-Complaint filled against gross negligence on the part of doctor in unnecessarily wasting time and not exercising reasonable degree of care in conduct of operation resulting in death of road accident victim. The complaint was dismissed on material record and testimony of treating doctors. -Case- Comp. No. 196/1993 in SCDRC( Karnataka)- Complaint filed alleging negligence, against doctor in delaying treatment of medical case, leading to death of patient.Complaint was dismissed as _ _ , and also the patient passed away before he had examined and started any treatment. - Case- F.A. No. 330/ 1995in SCDRC( Haryana)- Complaint filed against an ayurvedic doctor alleging negligence because complainant did not get relief of his fissures and piles problems in spite of the treatment of opposite party who claimed to be specialist in treatment of such

diseases. Complaint was dismissed on the grounds that failure to cure or bring about necessary results does not imply that the doctor is negligent or professionally incompetent. - Case- Appeal No. 7/1993in SCDRC( Gujarat)- Complaint originally filed against skin specialist for prescribing ineffective medicines and unnecessary laboratory tests. Complaint was considered frivolous, false and vaxatious .The appeal was dismissed on merits. - Case- Complaint No. 256/ 1992 in SCDRC ( Gujarat)- complaint filed alleging unfair trade practice by advertising alternative to surgery for prostate enlargement which ultimately did not benefit, caused pain and complainant had to undergo surgery later.Complaint dismissed without cost on the grounds that no particular system can guarantee 100% cure and it was unfortunate that the particular system did not benefit the complainant but no negligence was un sustained.

8.Diagnosis and reporting: -Appeal No.497/97 in SCDRC( Kerala)-complaint filed for wrong report of blood group test based on which the complainant traveled a long distance to donate blood to ailing sister only to find that his blood group is different from that mentioned in his report. District forum held that the opposite party has committed deficiency and ordered compensation of Rs.100 plus Rs. 300 costs. - C.D.case No.185/1991 in SCDRC( Orissa)- Complaint filed alleging negligence in testing blood for grouping which was later cross checked and found to be erroneous. As there was no transfusion of blood based on the erroneous blood group report and as the sample had not be drawn by opposite party but had been given to him already drawn somewhere else the commission held that no negligence could be proven and the complaint was consequently dismissed. - F.A. No. 97/ 1993 in NCDRC-Appeal filed against the orders of the state commission which had dismissed the complaint.

The complaint was against a radiologist, alleging negligence, because he had described the lesion in the abdomen on CT scan as inflammatory which later turned out to be a recurrence of malignancy for which patient had been operated earlier. It was averred that this mislead the treating physician and resulted in delay of the appropriate treatment. The complaint was dismissed and that decision has been upheld as the view was held that the treating physician should have used his judgement knowing the original disease to be malignancy and not to be mislead by the said report. - O.P. No. 87/ 1991 in SCDRC( Tamilnadu)- Complaint filed alleging negligence in diagnosis and treatment of a case of torsion of testis as “Orchitis” leading to gangrene of testis. Based on material on record , testimony of witnesses and text book references it was held by the commission that mistaking torsion of testis for epididymo orchitis in itself does not constitute negligence based on legal precedents specially so because the symptoms of the two mimic each other and the only was to differentiate it definitely in early stages is to do an isotope

Scan facility of which were nonexistent in the city. As such there was also evidence that the patient was suffering from the disease for 4-5 days prior to admission and as such performing the surgery would not have saved his testis. The commission held the opposite party not guilty of negligence and dismissed the complaint without costs. - Comp. No.122/1992 in SCDRC( Assam)- Complaint filed against Xray and clinical laboratory for allegedly wrong diagnosis. 1st opinion“Impression - U/S examination shows evidence of a low echoic mass measuring around 23x4 mm in size anterior to the IVC, could be an enlarged lymph node. Rest of the organs imaged within normal limits.” 2nd opinion- “ Within normal limits.” Commission held that “ report of radiologist is only an opinion based on impression recorded by machine or finding of laboratory test. I can take judicial notice of the fact that sometime if the report is not satisfactory to attending physician, the patient is asked to get necessary examination repeated.” “ It is true that X-ray and clinical laboratory tests are supposed to be done carefully by recording impression but in case in hand in view of the conduct of

Petitioner that he rushed to Madras hospital I hold that he is not entitled to get any compensations. The petition is therefore liable to be dismissed.” - Case- O.P. No. 100 /1993 in NCDRC- Complaint filed alleging negligence amounting to deficiency in service , diagnosing and treating the complainant leading to severe damage to his heart. The opposite parties based on material on record and testimony of witnesses proved that he was admitted with an upper abdominal catastrophe for which he was successfully managed.There is nothing to show that he suffered any insult to the heart while being treated for his abdominal problem. He had pre existing IHD and suffered an infarction following discharge from the hospital.” 9. Disease Transmission:- F.A. No.225/1992 in NCDRC- Complaint filled alleging negligence ; in supply of infected blood by blood bank, transfusion of that blood to patient using contaminated equipment & apparatus, non use of

Disposable syringes etc., leading to transfusion of Hepatitis B infection. Based on material on record and testimony of opposite parties it was held “that the patient had probably been infected by HBV prior to the surgery ( TURP) and complainant was directed to pay the costs for making unfounded allegations.” - Case No.. C-911/90 in SCDRC( New Delhi)- Complaint filed against private blood bank for supply of contaminated blood leading to Acute viral hepatitis infection to the patient. Based on material on record and affidavits of experts complaint was allowed and damages awarded. - Case No.- Su. Sv. H. & ors v/s MMC in SCDRC ( Maharashtra)Complaint filed alleging negligence in service provided by opposite party in giving AIDS virus infected blood to the patient intraoperatively leading subsequently to her contracting the disease to her husband & new born child. The case was peculiar in the sense that hospital made a clean breast of the lapse and offered free future medical treatment to the complainant and employment to her husband . The complainant however

Insisted on compensation. The commission held that since no charges were paid by the complainant to the charitable hospital for the cardiac surgery , the complaint was not maintainable under the CP Act. The complaint was consequently dismissed. 10. Deformity corrected by another doctor: - Comp. No. 378 / 1991 in SCDRC ( Gujarat )- Complaint filed alleging negligence and deficiency in services provided by orthopedic surgeon in a case of fracture neck femur with improper fixation and resultant shortening of leg. The opposite party’s plea that non union of fracture must have been because of not taking proper care by the complainant or taking weight post operatively as the left leg was rejected by the court mainly because after second operation performed by another surgeon the bones united and the shortening also diminished. The commission held that the operation was performed by opposite party in a negligent manner and awarded compensation to complainant.

11. Complications of treatment :a. High risk case b. Common & known complication c. Timings of complications d. Timely & proper diagnosis coupled with its treatment - C.D. case No.36 / 1992 in SCDRC( Orrissa)- Complaint filed alleging negligence & deficiency in service following death of patient after a course of anti rabies vaccine. The complaint was dismissed on the grounds that the death occurred due to neuroparlytic reaction which is a well known complication of ARV therapy, and so as such the treating doctor can’t be held responsible for that. - Comp. No. 489 / 1993 in UTCDRC ( Chandigarh )- Complaint filed against senior gynecologists alleging negligence in application of forceps during delivery in a case of previous caesarian section resulting in formation of uterovesical fistula later repaired surgically. Commission

Upheld the complaint based on expert witness testimony that UV fistula that had occurred at the site of the previous C/S scar could have been avoided if the doctor had been really careful in applying forceps. Complainant succeeds and the respondents are held liable in respect of the deficiency in services rendered. -Comp. No. 147 /1991 in SCDRC ( Karnataka)- Complaint filed alleging negligence in treatment and operation in case of type IV fracture of radial head leading to post operative development of myositis ossificans. “ Admittedly the complainant did suffer a type IV fracture and commonest complication, in such case is formation of myositis ossificans. It was held that complainant failed to prove the charge & hence appeal dismissed.” - Comp/ No. 22/ 1992 in SCDRC ( Gujarat)- Complaint filed alleging negligence and deficiency in treatment against a nurse of a PHC and a doctor of a private rural hospital alleging negligence in management of a patient who had delivered a baby at home with the help of “ Dais” but could not deliver the second twin.The patient was shifted to a

PHC and from there to a private hospital and from there to a larger hospital with better facility in view of the critical condition. Patient expired en route. The commission held that “ no negligence could be proven as in the absence of availability of blood the doctor did the best under the circumstances that he could.”The complaint was consequently dismissed. -Monitoring the patient's condition:- OP No. 154/1997 in NCDRCComplaint filed against hospital and two treating doctors for improper treatment administered leading to death of a patient.-H/O bypass surgery, MV replacement. Patient was admitted to repeat the surgery for MV and bypass.Per operative intubation was difficulty compelled the doctors to postpone the surgery and shift the patient in SICCU where patient died after two days following self extubation. The commission held that “ He was explained that this is a very high risk case”. “Extubation was swift and sudden , but it was immediately noticed by the nurse and expert doctors were called but within 10 minutes the patient died due to cardiac arrest.”Complaint was dismissed.

-Unrelated consequences leading to death- FA No.4/1993 in NCDRCComplaint filed alleging chemist shop alleging negligence in dispensing wrong medicines resulting in death of the baby. The complaint was dismissed as it was held “that the medicines were for diarrhoea and the child had died due to congenital apnotic heart disease, thus the medicine could not be linked to the cause of death.” - O.P.N.84/1991 in NCDRC- Complaint filed alleging negligence and deficiency in treatment in a case of a patient who developed infection in leg wound following coronary artery bypass graft surgery leading to thrombo embolic phenomenon resulting in patient going to coma and death. The complaint was dismissed because “the cause of death was shown to be cerebral haemorrhage , possibly secondary to hypertension which the patient suffered from. It could not be proved that the superficial leg wound infection in any way led to the death.” - Res Ipsa Loquitor-FA No.739 & 740 /1994 in NCDRC- Patient was admitted in hospital for treatment of epilepsy under the charge of consultant but died after 5 days due to septicemia with viral .

Encephalitis. “- ICU managed by doctor qualified in Ayurvedic Medicine-Bed sores developed on account of proper lack of care by the hospital= deficiency in service- lack of adequate monitoring by consultant- consultant left the patient when he knew that he was dying and that his presence was all the more necessary.It is duty of medical practitioner to make all efforts till the last moment to save the patient. Why the post mortem examination was not asked for ?” The commission held the hospital & the consultant and awarded compensation. - Vicarious Liability- O.P.No.99/1994 in NCDRC- A patient with cirrhosis of liver since 2 years was admitted to a hospital and died after 8 days of hospital stay.Gross negligence and deficiency in services on the part of the hospital including the doctors, nurses and paramedical staff was alleged.It was held by the commission that“1. Vicarious liability- Hospital can’t be held vicariously liable on account of negligence on the part of doctors unless the doctors impleaded and get opportunity to defend.”

2. Consultants- Hospital will be liable for negligence of consultants. 3. Deficiency in service- primary liability-Hospital liable for breach of its own duty.” [D] SOLUTIONS: 1. Prevention At individual level:a.Informed expressed consent b. Proper documentation of case details c. Full & legible record keeping d. Don’t leave the patient unattended e. Employ qualified staff 2. At the level of association:a.Indemnity insurance of members-I.e. PPS/ IMA

B. Vigilance on court judgements ( Statuary law)- O.P.No.100/1993 in . NCDRC“ The commission held that complaint filed a false and vexatious complaint claiming damages of RS.55.90 lacs from the opposite parties with a view to harass, intimidate and blackmail them. Finding the maximum impossible costs that is RS.10000 too small to act as deterrent against such false cases the commission awarded the same to the doctors.”- S.26 of The C.P.Act,1986 - shall be amended- amount shall be made more deterrent for such complaints. 3. Defense against negligence: A. No duty owed to the plaintiff. B. Duty discharged with reasonable care & skill. C. Therapeutic misadventure. D. Contributory negligence E. Products liability( provided adequate evidence is preserved)

E. Res. judicata- If a question of negligence against a doctor has already been decided by court in a dispute between the doctor and patient , patient shall not be allowed to contest the same question in another proceeding between himself & the doctor. F.Limitation period - for filling the suit.

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