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Journal of the Academy of Hospital Administration

Medico-Legal Aspect of Health Care Delivery

Author(s): T.D. Dogra*, Sudhir Gupta**

Vol. 17, No. 2 (2005-01 - 2005-12)

Current practice of Health Care with far reaching medico legal implications require careful examination and study. The series of articles on 'Medico Legal Aspect of Health Care Delivery' to be published in this and the subsequent two issues of JAHA shall be making available a comprehensive treatise on issues like 'Professional Liability Proplylaxis', ' Patient's Interest and Responsibility', 'Standard of care and Skills.' It is hoped that this shall generate debate, discussion and thinking on these issues. Readers are invited to send their reactions, experiences, opinion on the issues tackled in this article. Editors

PROFESSIONAL LIABILITY PROPHYLAXIS

High technology computerized centre for diagnostic & therapeutic medical care, the intensified competition, medicolegal awareness, economic stress, and inclusion of medical care delivery in consumer protection act 1986 leaded to the breakdown of the traditional relationship between patient and licensed medical care provider. The element, which probably stimulates litigation in the field of medical practice, is the fact that physicians or surgeons are often unnecessarily vulnerable. The average medical practioner is peculiarly naive in many respects and apparently he cannot believe that his patient, for whom he is doing his best and in whose welfare he is sincerely interested, will ''turn on him"; thus, not anticipating the likelihood of a suit, he fails to take those necessary precautions which would assure him of the best possible defense in event of suit in criminal, civil or consumer court oflaw.

INTRODUCTION

In medical care delivery when a patient come in contract with a doctor for a particular condition or examination and the licensed medical care provider agrees to perform the necessary services, the implication is that the medical care provider will render these services with requisite skill and care. This medical service along with required paramedical assistance, nursing care, bed, or room, is rendered in exchange for the payment. The failure to provide these services with reasonable precautions, requisite skill and care may give rise to action in medical negligence under criminal, civil or consumer courts.

The legal concept of negligence necessarily involves three steps. The first step involves human behavior towards others. This means essentially what duties are owed to others. If an action is required, there is a duty to perform that action in reasonable and prudent manner. Failure to act reasonably and prudently could be considered negligence. Acting in a manner inconsistent with accepted norms of medical practice could also be considered negligence.

There has been a great deal of discussion and case law over the years involving just what is "reasonable", and, suffice it to say, the general meaning is its everyday, common- sense definition. If an action falls outside the bounds of common sense, chances are that it will fit the definition of negligence. The rule of thumb is to decide whether the action makes sense. If it doesn't, it shouldn't be done. Of course, there are many exceptions to this rule, but the concept is grounded in the fact that human are rational creatures capable of making rational decisions.

The second step is failure or breach of the duty owed to the individual. Once duty to the individual is established, the actor has the obligation to perform that duty in a manner that will bring it to a successful conclusion. If the actor fails in that duty, he or she may be responsible to the individual to whom that duty was owed for any injury resulting from that failure. This brings us to the third and final step in the concept of negligence. This step involves damage to the individual for breach of duty. For the legal concept of negligence to apply, there must be some damage to the person or property resulting ITom breach of the duty owed. If the patient falls because of improper restraint or monitoring and suffers a fractured cervical spine there would be damages. On the other hand, that same fall could result in no injury; in that case an appropriate review of the situation is needed as no damages have occurred. If there is no damage then, under the legal definition, there may be no negligence.

The entire legal system in the negligence arena has developed through years of cases attempting to define this concept, and it will continue to evolve. Depending on one's point of view, the system may be for the better or for the worse. In any event, it will continue to undergo change and refinement.

EDUCATION OF THE PHYSICIAN

Completely reliable information as to the frequency with which physicians are charged with negligence is not available. It is a fact, however, that thousand of doctors are sued each year by their patients. There are more than fifty cases had been brought in AIIMS mortuary with alleged history of medical negligence from various hospital of South Delhi for medico-legal autopsy. It is reasonable to assume that an even greater number of professional liability actions are threatened and settled out of court. It is interesting to observe that such suits are very commonly ftled against private hospital where the bills incurred during the hospitalization is high and Professional liability may be regarded as a sort of disease of the social body, endemic if not epidemic in distribution. Certainly in one sense it is contagious, for the winning of an action by a patient frequently causes a temporary increase in the filing of new actions.

Prevention is still the best defense against the accusation of malpractice. The measures discussed bellow here briefly have been found to be effective and have been recommended, in whole or in part, by all who have given consideration to the solution of the problem of professional liability.

  • The physician should care for every patient with scrupulous attention to the requirements of good medical practice.
  • The physician must know his legal duty to the patient.
  • Destructive and unethical criticism of the work of other physicians must be avoided.
  • The physician should be careful to avoid making any statement which might be construed as, an "admission" of fault on his part. Such an "admission" may be damaging to the defendant
  • physician even though it has been made to a third party, rather than to the patient, and even though it was made before the trial. An agent or employee may also make such an "admission"during the course, and within the scope, of his employment.
  • The physician should exercise tact, as well as professional ability, in handling his patient. A proper professional manner should be maintained at all times, both toward the patient and towards the patient's family.
  • The physician should refrain from overoptimistic prognosis and should avoid promising much to the patient.
  • The physician should advise his patients of any intenged absence from practice and should recommend, or make available, a qualified substitute.
  • The physician should unfailingly secure an " infonned" consent for an operation or for a medical autopsy.
  • There should be care in the selection and careful supervision of assistants and employees; also, the exercise of great care in the delegation of duties to them.
  • The physician should have knowledge of the statute of limitations and of its significance. The physician, in his selection of patients, should limit himself to such fields as are within his qualifications.
  • The physician should keep inviolate all confidential communications.
  • The physician should frequently check the condition of his equipment and make use of available safety installations.
  • In the treatment of the patient there must be no experimentation without the explicit and infonned consent of the patient and then only when there is reason to believe that no hann will be done to the patient as a result of the experiment.
  • The physician must be careful to render sufficient care to his patient in the way of general instructions, frequency of visits, clinical and x-ray laboratory investigations, etc.
  • The patient must not be abandoned. The physicianpatient relation should be legally and ethically tenninated.
  • The physician should not brag that he carries professional liability insurance. He should not write a letter or make any statement with reference to a professional liability claim or suit, except upon the recommendation of his legal adviser. Immediately upon being advised of the possibility of suit, he should notify his insurance carrier or consult with his attorney.
  • The physician should arrive at an understanding with the patient in the matter of fees.
  • The physician should secure medico legal advice from a forensic medicine professionals if he called to attend a police or magistrate inquest.
  • The physician should realize that because of the possibility of error in transmission, it is dangerous to telephone a prescription.
  • The physician should realize that it is hazardous to sterilize any patient, except when there is medical indication.
  • No female patient should be examined, except in and actual emergency, unless a third person is present. There is no more serious or destructive charge against a physician than that of undue familiarity; it seems that there is only one way to avoid claims of this sort, and that is to have someone else present during all examinations.
  • Engage and train office assistants by direct supervision until certain of their qualifications meet the standards of proficiency.
  • "Ideal" medical records should be kept in every case: (a) records that would be acceptable whenoffered in court, (b) records that clearly show what was done and when it was done, (c) records which establish that nothing was neglected and that the given care fully met the
  • standard demanded by the law. If any patient discontinues treatment before he should or if he fails to follow instructions, the record should show that fact; a good method is to file a carbon copy of the letter sent the patient advising him against the unwise course.
  • The medico legal cases should not be refused for treatment only the matter should be communicated to police.
  • Prepare a file of laws related with medical practice and take precautions to eliminate all hazard on hospital/ clinics.

EDUCATION OF THE PUBLIC

When a physician assumed the care of a patient there is no implied promise that the patient will be cured, benefited, or even relieved. The patient naturally hopes that medical treatment will be helpful but he must be made to understand that good results are not always attained or attainable. The physician does not deserve criticism and blame when a patient fails to improve. So frequent have professional liability claims become in some sections of the country particularly in metro city that any patient with a less than prefect end result is a potential claimant. This tendency to blame the attending physician or surgeon, whenever there is dissatisfaction with the results obtained from medical treatment, is alarming.

There can be no question but that the hypercritical attitude of an increasing number of people, with the rising incidence of professional liability claims consequent there on, can put a definite brake on medical progress. Such a situation also seriously burdens and injures the individual physician- patient relationship. This is not difficult to understand. The average person, no matter what his walk in life, has but to ask himself what the probable effect would be on his efficiency and his peace of mind if he had to anticipate, in each of his daily activities, that a suit was likely to eventuate, regardless of whether or not any just grounds for complaint existed. The average person, to understand more fully the physician's attitude and reaction, must also realize that in professional liability accusations it is the physician's reputation and integrity which are constantly being challenged. It is not too difficult to comprehend what that means to a professional man.

The erroneous opinion exists in many quarters that it is the quack or borderline practitioner who is sued. On the contrary, in South Delhi the cases which has been brought in AllMS mortuary for medico- legal autopsy with alleged history of medical negligence were much more in number against specialist and super specialist medical practioner involved in major surgery long hospitalization and high bill of hospital. The physician is frequently the defendant in this type of litigation. It is also the physician of average age, rather than the "very old" or the "very young" doctor, who is most frequently sued.

THE PATIENT'S INTEREST AND RESPONSIBILITY

The average person, unless he is suing or getting ready to sue some physician, manifests little or no interest in the matter of medical professional liability. He apparently sees no reason why he should be concerned. From the standpoint of self-interest alone, such an attitude could hardly be more unrealistic and mistaken. It is suggested that the potential patient- and each of us is a potential patient ask himself what kind of a doctor he wants if and when it becomes necessary to submit himself to medical care. The primary question suggested is "Do I want a doctor in whom I can have confidence?" If the answer is affirmative, then consider whether or not such a desirable relationship is possible unless the physician can also have confidence in his patient. The likelihood of a physician being sued is so great today in some areas that the practicing physician recognizes that it constitutes a definite occupational hazard. If a physician must be overly apprehensive of suits, shortly and inevitably his own aggressive instinct will, in some measure, overcome his professional and humanitarian motivations. Of all the professional men, the doctor of medicine is called upon to do his work under the most adverse circumstances. He may be called in the dead of night and be confronted with an emergency in which immediate action must be taken and highly specialized training be applied. He is haunted by the knowledge that un unforeseen result, a complication which could not possibly have been anticipated or prevented, may become the basis of lawsuit. The honest, competent, conscientious physician should have - and in the public interest he must have- some assurance that as long as he is doing a competent job he is not going to be harassed by litigation, subjected to unpleasant notoriety, and forced to spend time in court trying to keep from being penalized. As long as physicians are human they will continue to make their share of "human" errors. There will also be a certain number of legitimate claims based on ignorance and accident. In these cases the injured persons or their families are entitled to proper and fair compensation. It must also be realized, however, that deaths, untoward and unexpected results, continuing disabilities, and complications do occur and will continue to occur; also, that there is always a chance that without negligence on the part of anybody some unfortunate result may happen. There can be no doubt that the and misunderstanding engendered by the great number of unfounded professional liability claims and suits has caused a lowering of medical prestige and a decrease in the confidence with which the profession has been regarded. Therein, too, is found the reason why patients now tend to express mistrust of their medical attendants to the point, frequently, of total collapse of confidence when found unhappy result. It cannot be too strongly emphasized that, in the patient's own interest, the physician must be able to have confidence in his patient, that the physician is entitled to have patients upon whose understanding and integrity he may safely rely. Mistrust is not, or at least it cannot long remain, unilateral. The patient must realize, too, that he has a major degree of responsibility in the maintenance of his won health. An uncooperative patient who does not carry out instructions in some particularwho will not, for example, refrain from alcoholic or other dissipation tries to place the burden for the poor results obtained upon the attending physician. This is hardly and intelligent acceptance of responsibility. It is obvious that certain degree of moral integrity, on the part of both patient and physician, is essential to successful and satisfactory practice.

The potential patient will wisely select his personal physician in advance of need. He should become acquainted with the physician and establish the basis for their mutual and justifiable confidence. The secret of the success of the physician's care of his patient lies in his caring for the patient. This, in turn rests upon the patient's appreciation and total acceptance of his own responsibilities.

POSTOPERATIVE ANESTHETIC CARE

An an esthesiologist is most likely to be subject to legal liability in connection with postoperative care where he or she has failed to monitor a patient's recovery from general anesthesia adequately or has used an inappropriate drug or procedure during the postoperative period.

Basic Standard of Care: With respect to post anesthesia care, the American Society pf An esthesiologists (ASA) has provided the following basic guidelines. Under these guidelines, post anesthesia care means:

1. Availability of adequate nursing personnel and pertinent equipment necessary for safe post anesthesia care. 2. Awareness by responsible physicians of competence level of personnel who carry out post anesthetic care. 3. Informing personnel caring for patient in immediate post anesthetic period of any specific problems presented by each patient. 4. That the individual responsible for administering anesthesia remains with patients as long as his presence appears necessary. 5. That a physician participates in establishing policies for the discharge of patients from any post anesthetic care facility. 6. At least one visit with appropriate notation on patient's chart during early post anesthetic period where feasible. 7. Management of related anesthesia complications.

The ASA has also provided the following suggestions for preparing a postoperative care record to facilitate a medical audit.

  1. Evaluation of the status of the patient on admission and discharge from the postoperative recovery suite.
  2. A record of vital signs
  3. A record of IV fluids administered, including blood and blood products.
  4. Record of all drugs employed
  5. Record of unusual events or postoperative complications, including management there of.
  6. The anesthesiologist shall determine and document when the period of postoperative surveillance has terminated.

Interpretation and Customary Practice: Numerous problems may arise following the completion of an operation. Even the transfer of the patient to the recovery room presents the potential for mishap. Poorly attended patients have fallen to the floor and been injured. Abrupt transfers have resulted in muscle and ligament strains, brachial plexus injury, or dangerous degrees of hypotension. An adequate number of individuals should assist in the transfer to avoid incidents of this kind. Once the patient is moved, the sides of the litter or bed should be elevated, a restraining strap put in place, and the patient constantly attended.

The anesthesiologist should be prepared to respond to at least four categories of post-anesthetic problems: respiratory, cardiovascular, and metabolic complications, and postoperative pain and delirium.

Respiratory Problems: Airway obstruction, laryngospasm, accumulation of secretions, and inadequate gas exchange may be present. Perhaps the most common postoperative respiratory problem is residual neuromuscular block. Hypoventilation with resultant hypoxemia and hypoxemia and hypercarbia is a threat. Hypervenlation too, is commonly observed after anesthesia. Because secretions accumulate and Atelectasis may develop, hypoventilation should be searched for and treated promptly. Other problems, which may arise, include pneumothorax. Aspiration of vomitus, and inadequate ventilation or respiratory obstruction caused by excessively tight surgical dressings.

Cardiovascular Problems: While the anesthesiologist is disconnecting the apparatus from the anesthesia machine, turning of the gas supply and preparing to move the patient from the room, blood pressure or pulse may not be observed for a time, even if monitoring devices are in place. Thus, hypo tension could reach proportions before being recognized. In other patients hypertension may be present. The anesthesiologist should also keep in mind the possibilities of hypoxia, cardiac arrhythmias, and unreplaced blood loss.

Metabolic Problems: Most patients returning from airconditioned operating rooms are hypothermic, particularly following prolonged procedures and extensive dissection. A hypothermic patient is intensely vasoconstricted, which results in impaired peripheral perfusion, metabolic acidosis, and frequently, hypertension. Post anesthetic shivering is commonly experienced upon emergence from general anesthesia. The reduction of body temperature that causes shivering may be minimized by maintaining room temperature at 21°C or higher. Hyperkalaemia may be observed in connection with chronic renal disease or abnormal administration of potassium.

Pain and Delirium: The incidence and severity of postoperative pain are so variable that the approach to each patient must be individualized. The very young, the emotionally stable, and the elderly tend to show lesser responses to pain. Excitement following emergence from general anesthesia is displayed particularly by the younger patient who, without analgesia, may be difficult to control. Agitation may also be experienced by patients who have psychomotor disturbances, who are fearful of the findings of the operation, or who cannot tolerate pain.

One of the more common sources of liability in this area is failure to monitor a patient's recovery from general anesthesia adequately. However, proof that the patient suffered an injury during the postoperative period does not by itself prove negligence on the part of the anesthesiologist. The anesthesiologist cannot be liable, for example, for an unavoidable injury occurring during the course of an operation. This is true even if the patient's injury is significantly aggravated during the postoperative period by the negligence of hospital employees not under the direction of the anesthesiologist.

MEDICO- LEGAL DISCUSSIONS

Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term, which may extend to two years, or with fine, or with both UNDER SECTION 304 A OF Indian Penal code.

Negligence was defined by Baron Alderson as" the omission to do something which a reasonable man... would do, or doing something which a prudent and reasonable man would not do". It could be defined as a failure to perform the duty to exercise a reasonable degree of skill and care in the treatment of a patient. It is suggested that medical negligence was only an example of negligence at large, but the more modem view is likely to be that expressed by Lord Dinning. He declined to liken the case against a hospital to a motor-car accident or an accident in a factory. "On the road or in a factory there would not be any accidents if everyone used proper care. But in a hospital, when a person was ill and came in for treatment, no matter what care was used there was always a risk, and it would be wrong and bad law to say that simply because a mishap occurred, the hospital and doctors were liable. Indeed it would be disastrous to the community. It would mean that a doctor examining a patient or a surgeon operating at the table, instead of getting on with his work, would be for ever looking over his shoulder to see if someone was coming up with a dagger. The law enforcement agency must therefore not find him negligent, simply because one of the risks inherent in an operation (or anesthetic) actually took place, or because in a matter of opinion he made an error of judgement. They should only find him guilty when he had fallen short of the standard of reasonable medical care, when he was deserving of censure.

SKILL AND CARE

A doctor is under a duty to exercise skill and care; in dependently of any contract for services, ftom the moment he assumes responsibility for giving advice or treatment to a patient. This duty arises not only when he accepts a fee, but whenever he gives advice or treatment gratuitously or when he treats a person without reward in any emergency, e.g. when he attends an injured or unconscious person involved in a road accident. It is important to appreciate that negligent advice is just as actionable as negligent treatment. It must be something more than casual advice; there must be evidence of assumption of responsibility. A doctor, merely because he is a registered medical practitioner, is under no legal obligation to accept a patient. He is at liberty to accept or to refuse to treat private patients. He is under no legal obligation, but may regard it as a moral duty, to assist anyone in need of medical care in an emergency.

DUTY TO MAKE AN ACCURATE DIAGNOSIS

The doctor who accepts a patient does not overtly or by implication. Promise to make an accurate diagnosis. His responsibility is fulfilled when he has exercised reasonable care and skill in making the diagnosis. His is not an insurer and therefore does not warrant a cure. Nor is he negligent by reason alone of errors in diagnosis.

In the event that the diagnosis was palpably wrong or inadequate steps were taken to make a diagnosis, the doctor may be found negligent.

DUTY TO INFORM A PATIENT OF THE RISKS ATTENDING TREATMENT

"In a hospital, when a person who was ill and came in for treatment, no matter what care was used, there was always a risk." There is always some risk involved in every operation in general.

Where there are special, known risk, the patient should be made aware of them before he consents to the treatment. If that has been done, then there is no liability for any injury of the kind, which results ftom such risks.

STANDARD OF CARE AND SKILL

The person who professes to be a doctor implies that he is competent, every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care. The standard is that of an ordinary, competent practitioner in the group or specially to which the doctor belongs.

He is not required, in order to clear himself, to show that he possesses and exercised the maximum degree of skill and care, a surgeon undertakes that he will perfonn a cure nor does he undertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has, but he under takes to bring a reasonable and competent degree of skill. The definition of the standard, as per a court judgement of England (1982), says "It is not enough that there has been a less degree of skill than some other medical man might have shown, there must have been a want of competent and ordinary care and skill, "Mr. Justice stratified, in patch v. the Board of Governors of the Bristol United Hospitals (1959), gave this modem definition. The liability of doctors is not unlimited, the standard of care required of them is not that standard shown by exceptional practitioners. Surgeons, doctors and nurses are not insurers. They are not guarantors of absolute safety. They are not liable in law merely because a thing goes wrong. The law requires them to exercise professionally that skill and knowledge that belongs to the ordinary practitioner.

The provisions of sec. 304A of Indian Penal Code apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. The provision is directed at offences outside the range of secs. 299 and 300. I.P.C. and obviously contemplates those cases into which neither intention nor knowledge enters. The section applies only to such acts which are rash or negligent and are directly the cause of death of another person - Balwant Singh V. Stte 1994; Supp 2 sce 67: 1994 SCC (Cr.) 844.

Res-Ipsa Loquitur: In criminal cases because of the rules of burden of proof presumption of innocence and proof beyond reasonable doubt, the doctrine of Res Ipsa Loquitur can only be applied as an aid in the evaluation of evidence, an application of the general method of inferring one or more facts in issue from circumstances provided in evidence - Syed Akbar V State of Karnataka AIR 1979 SC 1848: 1979 Cr LJ 1374.

Who sets the standard?

In the ordinary course of events it seems reasonable to assume that the court will rely upon the evidence of competent practitioners in the relevant field of medical practice.

Rash and Negligent Act:

In the ancient decision of Empress v Idu Beg ILR 3 All 776, the topic was dealt with in the following language: "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably cause. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury, either to the public generally, or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was imperative duty to accused person to have 'adopted'" - See S.N. Hussain v State AIR 1972; SC: 685: 1952 Cr LJ 496.

Rashness and negligence are relative concepts, not abstractions. In applying the law under sec. 304A, it is fair to apply the rule of resipsa loquitur with due care, and having regard to the fatal frequency of rash driving of heavy vehicles and of speeding menaces - Rattan Singh V State AIR 1980, Cr. L.J. II.

It is a rash and negligent act to prescribe poisonous medicines without studying their probable effect. Thus where a registered homoeopath administers poisonous medicines such as stramonium and dhatura leaf without throughly studying what would be the effect of giving 24 drops to a patient causing his death, the homeopath is guilty under sec. 304A, I.P.C. - Jugger Khan v State Air 1965; SC 831: (1965) I Gr. L.J. 763.

Both the Indian law and the English law require that death should be the direct result of rash and negligent act - Kurban Hossain v State AIR 1965; SC 1916: London Passenger Transport Board 1949 AC 155.

Cause and effect - must be direct: In order to attract the section, death must be direct result of rash negligent act of accused and the act must be efficient cause without the intervention of another negligence. It must be the cause causans, it is not enough that it may have been the causa sine qua non. Thus where death is not the direct result of rash or negligent act on the part of the accused and was not proximate and sufficient cause without the intervention of another negligence, the accused must be acquired of the charge under sec. 304 A, I.P.C. - Kurban Rangawalla v State AIR 1965 SC 1616: (1966) I SCJ 160: Suleman v State AIR 1968 SC 829: 1968 Cr LJ 1013; AIR 1972 SC 1150: 1972 Cr LJ 727.

Direct nexus: There must be direct nexus between the death of the person and the rash and negligent act. Remote nexus is not enough - AIR 1969 Ori 49; AIR 1969 Goa 39. That the death was the direct result of rash and jnegligent act must be proved - AIR 1969 Raj 86: 1969 Cr LJ 444. After one asthma patient was pushed coramine injection and he died; but autopsy report did not show that the coramine injection was the proximate cause of death. So the accused cannot be held guilty under sec. 304 A, LP.C. - 1977 Cr. L.J. 1373 (MP).

Failure to adopt generally approved methods of diagnosis or treatment in the appropriate circumstances is a perilous course. Thus, the omission of X-Ray examination in circumstances where a fracture or dislocation was suspected, or ought to have been suspected, may be sufficient to establish lack of reasonable care. An instance of failure of Xray of a patient with a head injury has been deemed negligence (Mc Cormack V. Redpath Brown and Co. and another (1961).

There could be circumstances in which failure to administer an antibiotic would be held negligence. In Jones V. the Welsh Regional Hospital Board ad Kemp (1961). There is a duty to be well-informed of developments in medical practice and ignorance of them might lead to an action for negligence, as in the case of Crawford V. Board of Governors of Charing Cross Hospital (1952).

CONCLUSION

As a forensic medicine experts, we have had occasions to interview many individuals related with alleged medical negligence cases. There were those some cases that, in our opinion, warranted further action, there were also many cases where lack of communication between the parties gave rise to the suspicion that something was wrong, whereas in reality it was not. Thus, it appears that many potential cases could be avoided through proper communication.

Many strides have been taken in medicine, as there is the perception that almost anything can be done in medical care delivery. When an individual is sick, he or she wants to get well. The patient is fiightened and confused. If the professional takes the time to talk with the patient, the patient's fear and suspicious may be lessened. The various court of law has also spoken to this issue of communication with patient / patient party.

The relationship of a patient to his physician is by its very nature one of the most intimate. Its foundation is that the physician is learned, skilled and experienced in the medical speciality of the human body about which the patient ordinarily knows little or nothing but which are of the importance to him. Therefore, the patients place great reliance, faith and confidence in the professional ward, advice on acts of his doctor. It is the physician's duty to act with utmost good faith and to speak fairly and truthfully at the peril of being held liable for damages for fraud and deceit.

The age-old saying that a job worth doing is worth doing well applies especially in the health field. It is the duty of the health care professional to learn his or her skill well, to keep abreast of changes and advancements in knowledge and technology, and to develop the ability to communicate on both a professional and a personal level. Further more the medical professional must be aware regarding the various health legislations applicable to them. e.g., informed consent and refusal in medical care delivery, prenatal diagnostic technique act, MTP act, certification brain stem death, the transplantation human organ Act related with storage, removal and therapeutic transplantation of human organ, human experimentation, animal experimentation law. poison act, drug control act mental health act, drug and cosmetic act, narcotic and psychotics drug act and various other health legislation with legal liability of medical doctor in criminal and state issues. There should always be ability to face a mistake and learn from it serves to prevent it ftom happening again. However, if the professional keeps the patient's well being in the forefront, the chance of mistakes will be minimized and if one occurs, the harm may be lessened.

PROFESSIONAL LIABILITY VULNERABILITY

It is generally understood and accepted that a hospital is a place in which a patient may receive food, shelter, and nursing care while receiving medical or surgical treatment. Such care may be sought as a result either of an emergency or of a chronic condition or at the choice of the patient in the matter of elective hospitalization. Judicially a hospital has been defined as "an institution for the reception, care and medical treatment of the sick or wounded, person. It has also been defined as "a place where medicine is practiced by a licensed medical care provider. In the light of changing scenario of legal awareness in society and consumerisms the chances of advancement of accusations against the doctor who provides the medical care cannot be ruled out, and its vulnerability needs to be taken in account in medical care delivery system.

INTRODUCTION

The individual physician may, in a general way, detennine his professional liability vulnerability by grading and measuring himself on the basis of his responses to the following questions. If he is honestly able to answer affinnatively the second question propounded, no legitimate accusation can be advanced against him. This does not mean, unfortunately, that he will not be suedt. The greatest need is that the physician be well and generally infonned so that he may reasonably expect to avoid the unjustifiable suit and that he may be in stronger position for defence when he is sued. The term "professional liability vulnerability" is, in a sense, improperly or at least inexactly used, for the physician may be sued by any patient despite any thing and everything he may do. There is, however, a relative range, and the thoughtful, selfprotecting physician is much less likely to be sued than is the physician who is totally oblivious of professional liability problems, no matter how skillful and capable he may be.

The Querries for a Medical Care Provider

  • Are the cases I accept within my professional quali fications to handle?
  • Do I care for every patient with proper attention to the requirements of good medical practice?
  • Do I know my legal duty to my patient?
  • Am I aware of the danger of over optimism in prognosis?
  • Do I know the significance of the statue of limitations?
  • Do I obtain a complete x- ray record of every case presenting even a suspicion of bone or joint injury?
  • Do I obtain legal and specific consent for operation, haz ardous treatment, and autopsy?
  • Are my records such that I would not embarassed and prejudicially affeded by their presentation in court, are they kept in such a way as to give the maximum possible protection in event of suit?
  • Do I take special action in case a patient fails to follow instructions or discontinues treatment prematurely?
  • Am I tactful in handling a patient and the patient's family?
  • Do I secure consultation, protective to both patient and physician, in a doubtful case?
  • Do I realize the importance of making sufficiently ftequent calls upon the patient?
  • Am I careful to give full and understandable instruc tions to the patient and to those caring for the patient?
  • Do I routinely make full use of all indicated laboratory aids in diagnosis and treatment?
  • Am I aware of the hazard of experimentation in the treatment of my patients?
  • Do I notify my patients if I am going away and arrange for their care during my absence? Am I available to respond to calls from my patients or, if I am not, do I have a qualified substitute on call?
  • Do I understand that the physician patient relationship can be terminated only in certain ways and that I do not free myself from responsibility by simply remain ing away from the patient?
  • Do I hold inviolate all professional confidences?
  • Do I obtain expert advice, at once, whenever the attitude of the patient or the patient's family suggests the possibility that charges of negligence may be made? Do I know the necessity in such circumstances of refraining from making any statement, oral or written, either to the patient or to the patient's attoney, until I have secure legal advice?
  • Is my professional apparatus kept in the safest condition possible?
  • Am I technically qualified to use x- rays, diathermy, and other modalities and instrumentalities, which I employ?
  • Am I sufficiently careful in the delegation of duties to assistants and employees?
  • Do I fully realize my responsibility for the negligent acts or omissions of a partner? An employee? An assistant? An associate? A substitute?
  • Do I know when I may be responsible for the negligent acts or omissions of an intern or hospital nurse? Or for injury resulting from the use of defective hospital equipment?
  • Have I some understanding of the doctrine of res ipsa Loquitur as applicable to professional liability cases?
  • Do I refrain from adverse criticism of the professional care rendered by other physicians?
  • Do I prevent, to the best of my ability, any disagreeable misunderstanding in the matter of fees?
  • Do I know the danger of giving prescriptions by telephone? Do I realize that if a mistake occurs in a telephoned prescription, I may be held liable?
  • Do I realize the hazard of sterilizing patients who 'present no medical indication?
  • Am I aware of the desirability of using care in formulating reports required in the event that a patient comes under a workmen's compensation act? Do I know that such reports may be utilized in the event of a professional liability suit arising in the case? Do I know that I face the same hazard in the case of an industrially injured and compensated patient, or in the case of a charity patient, as in the of a private, paying patient?
  • Do I seek legal advice before testifying at an inquest in connection with a case upon which I have been in professional attendance?

Personal Factors for Doctors

  • Fairly estimated, how do my professional skill and experience compare with that of other reputable medical practitioners, in this locality, who engage in the same field of practice?
  • Do I reasonably limit myself, in my acceptance of patients, to those whom I am qualified to care for?
  • Do I advise my patient in believe that the treatment may be of doubtful efficacy?
  • Do I readily accept the suggestion that a consultant be called in?
  • Am I sufficiently attentive and do I manifest such a degree of interest, honestly felt, that my patient feels confident and secure?
  • Do I give consideration to social, economic, and religious factors, which, in certain cases, may be of basic medical importance?
  • Am I generally thoughtful in my contact with the patient and the patient's family?
  • Do I keep abreast of medical developments?
  • What professional literature do I read?
  • Do I take full advantage of my opportunities to attend medical meetings?
  • When did I last take a postgtflduate course?
  • If, in connection with my practice, there is involved a procedure that is unusually hazardous, such as x- ray therapy or shock therapy, am I aware of the risks and do I act accordingly?

Equipment, Records, and Employees

  • Is my equipment of good quality?
  • Do I keep my equipment in first class condition?
  • Is my equipment checked or calibrated accord ing to need?
  • Am I reasonably expert in the use of each unit of equipment I have in my office?
  • Is there any safety installation I should utilize in connection with any instrumentality otherwise capable of causing injury?
  • In my use of diathermy, what precautions do I take to assure positively that my patient will not suffer injury?
  • Am I satisfied with the medical case records I keep in office and in hospital?
  • Are my employees and assistants capable of carrying out the duties assigned to them?
  • Do my employees meet and treat patients and patients' families in such a manner that no ill , resentment, or antagoninsm results?
  • Do I have an unlicensed person practicing medicine in my office?
  • Does anyone other than a licensed physician qualified in anesthesia administer anesthetics for me?
  • Is the caliber of the laboratory work, clinical and xray, that I have done the best that is reasonably available?
  • What about my actual opinion of the consultants whom I recommend calling in? Are they the same ones I would call in to see members of my own family?

Liability Prevention Programm - a need in our country

The question may well be asked as to the need for and the benefit of a medical association, either state or country, professional liability prevention programm. Why such a programm? Because a professional liability insurance policy, regardless of its amount, terms, and conditions, does not compensate for:

  • The days and weeks that defendant physicians are compelled to spend in court.
  • The damage to professional reputation in the community.
  • The destruction of peace of mind, which a suit, particularly one for the amounts filed these days, creates.
  • The loss of public confidence inevitably attendant upon professional liability claims and suits. Why a professional liability prevention programm? To help provide an answer to the day-by-day questions to which the doctor is subject, such as:
  • Can I, with legal safety, operate upon this patient?
  • What type of consent should I have under these circumstances?
  • Should this sudden death be referred to the coroner?
  • Should I insist on an autopsy?
  • may I release this information?
  • How should I answer this letter? Or that attorney's telephone call?
  • Am I safe in suing for the bill?
  • Should I give the patient the x- ray films?
  • Can I permit my office nurse to give those injections?
  • What about the request for information by a subsequent physician?
  • Can I be charged with responsibility for a less than prefect end result?
  • What shall I do in the instance when a patient who needs further treatment fails to return? And, ifI decide to send a letter, how shall I word it?
  • Is it safe to do a sterilization procedure in this case?
  • What advice should I have before uridertaking to do an artificial insemination?

Why a professional liability prevention programm? Because a well- funded and efficiently administered program:

  • Tends to raise medical standards,
  • Improves medical public relations,
  • Controls, to a degree, those few physicians who are inclined to overcharge patients and those physicians who need special attention to keep them up to the mark, and
  • Promotes the elimination of the unprincipled and unethical practitioner.

A sound programm will fulfill all these needs and services and, in addition, decisively reduce those claims and suits, which are without merit. In short, such a programm protects the individual practitioner, enhances the prestige of the profession, and contributes tremendously to the public welfare.

Basics of Prevention Programm

The following factors are suggested as basic in the establishment and in the functioning of a professional liability prevention progra.mm, as such a programm might be developed by a state or country medical association like Indian Medical Association or reputed national institution like All India Institute of Medical Sciences in collaboration with IMA.

  • The programm must be based upon a long- time plan.
  • The understanding and cooperation and support of the entire membership must be secured. Each individual should be made fully aware of the fact that it is his programm and that he, as well as all participants, is injured when any physician is sued.
  • It is, of course, basically important to have the protection of professional liability insurance, but that of itself is not enough. The payment of the moneycost is only a portion of the individual's contribution to the success of such a programm. He must further give the programm his loyal support, he must learn how he may protect himself and his colleagues.
  • The group must do everything in its power to see to it that no actual malpractice occurs- by reasonable policing of its members, by making available, when indicated, lectures, clinics, and reftesher courses and otherwise encouraging the raising of standards of practice, and by offering continual instruction in prophylaxis and maintaining a functioning claims prevention service.
  • The group should maintain a grievance commit tee to deal with complaints as to professional conduct and fees.
  • Depending upon local conditions and preferences, it may be desirable to initiate a group insurance programm or to designate a "preferred" carrier. In any event, the insurance carrier or carriers must recognize that professional liability insurance is highly personal ized, that it deals with and protects the most valuable asset of the practicing physician, his professional reputation.
  • The carrier or carriers should give assurance to the group or individuals covered that due regard shall be given to the welfare of the association and to the reputation of the assured in the disposition of all claims and suits, and that recommendations as to underwriting and as to the acceptance or declination of applicants shall be persuasive, although not manda tory on the carrier.
  • The carrier or carriers shall have constantly available to the assureds, by competent consultants, telephone advice on problems relating to the physician- patient relationship.
  • The carrier or carriers shall provide for the investigation and adjustment of claims by personnel especially trained in the investigation and adjustment of profes sional liability claims.
  • The group should agree that the full cooperation of all its members will be sought to the end that the mutual welfare of its members and the carrier, or carriers, may be served by the programm.

The Grievance Committee and Medical Professional Liability

It has been suggested from many sources that Indian Medical Association should establish grievance committees before which complaints of dissatisfied pati~nts may be heard and considered. Such committees, no matter how called, are now functioning in many localities across the country. Their duty is to hear and to investigate the complaint of a patient respecting professional care rendered by an attending physician or allegedly excessive fees charged by him. In sofar as their activity respecting the fee complaints is concerned, grievance committees serve a great good to all concerned. In the experience of a number of fee complaint committees, it has been found that in the vast majority of the cases investigated the fees complained of are fair and reasonable. Most of these cases are satisfactorily disposed of by simple explanation to the-complainants. In those instances in which the committee finds that the fees charged are unusual, unreasonable or excessive, it may be suggested to the parties that the matter be compromised or it may be directly suggested to the physician that the fee be reduced. It is pointed out that, unless the patient has specifically agreed to pay a defmite sum for the services, an implied contract arises which obligates him to pay the reasonable value thereof. In a suit to collect such fee, the plaintiff physician has the burden to prove that his charge represents the reasonable value of the services rendered. The handling of complaints of professional conduct poses a more difficult problem. Patients come before professional conduct committees, complaining of professional service, which has been rendered them. Some of these patients have suffered unusual complications, some present a cosmetic defect or functional disability, and some physician may already have told quite a few that the treatment rendered was improper or negligent.

If the grievance committee is to serve a constructive purpose it cannot start with the preformed conclusion that the doctor is always right, nor can it conceive that its function is routinely to "whitewash" the physicians who have complaints brought against them. an impression that the doctor is given overly favorable treatment by the grievance committee is likely to be created and to circulate in the community, unless the committee is competent and fair and unless it deals intelligently and fairly with the complaints and with the individuals before it. It is obvious that the professional conduct committee must possess knowledge of the legal implications involved if it is to deal soundly with the controversies brought before it. Unless the committee possesses such knowledge and unless it is authorized to deal effectively and realistically with all matters given consideration, it should not function at all.

No claim or suit should arise when an attending physician has fully met the legal obligation owed his patient. The patient may not be in a position to know whether the required standard has been met or not. In many cases, after complete investigation, the grievance committee has the opportunity to inform and reassure the patient- to make it clear that the physician does not deserve the criticism and blame which is being cast upon him. On the other hand, instances involving actual negligence, mistake, or accidents do occur, and, if complainants are to be satisfied and the public interest served, the professional conduct committee cannot avoid the ultimate issue- the question of whether or not the attending physician in such a case fulfilled his legal duty to his patient. The committee, having decided in a given cases that the attending physician did not care for the complainant in accordance with the requirements of good practice, is now faced with another problem, shall the patient be so advised? It seems clear, in the circumstances outlined, that both the patient and the physician must be informed of the committee's conclusions.

It is questionable whether a grievance committee, dealing with other than fee complaints, should function in any medical society, except and unless such committee is developed and functions as an integral part of an overall state or country medical association professional liability programme.

* Professor and Head, Department of Forensic Medicine and Toxicology, AIIMS, New Delhi
** Associate Professor, Department of Forensic Medicine and Toxicology, AIIMS, New Delhi

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