1. Surgery-Appendicitis-Appendix found normal on opening-Instead gall-bladder removed-Death-No proper facilities in hospital-Negligence held-On 27.9.1958 the plaintiff's wife complained of severe abdominal pain-Defendant diagnosed appendicitis and undertook immediate operation-On opening abdomen found appendix normal-Hastily diagnosed inflamed gall-bladder and removed it-No consent taken from the plaintiff waiting outside-All this time patient was under chloroform anaesthesia-Few hours later the patient died of hepatorenal failure. Held: Wrongly diagnosed appendicitis without proper investigation and operation without preparing the patient-Acted rashly in removing gall-bladder-Not caring about ill-effects of keeping patient under chloroform for 2 hours, specially when her kidneys were known to be affected-No preventive steps taken to counteract the toxic effects of chloroform on kidneys and liver by giving glucose and vitamins-No consent of the husband taken-Hospital lacked basic facilities, e.g., oxygen, blood-transfusion, life-saving drugs, staff and anaesthetist-Should not have undertaken such a major operation under such circumstances-Nothing would have happened if the operation was post Poned-Negligence held. [Rambiharilal v. Dr. J.N. Shrivastav, AIR 1985 MP-HC 150 (DB).]
2. Surgery-Appendicitis-Not operated in time-Held negligent-Compensation of Rs. 37,000/- awarded-Doctor not performing an emergency operation for want of patient's consent arid consequent death of the patient-On complaint of severe abdominal pain by the patient, the general practitioners, after diagnosis, found it to be a case of appendicitis-Patient admitted to the hospital-Operation not performed on that very day and on the subsequent day the patient died owing to bursting of the appendix-Plaintifrs case was that had the operation been performed immediately, on the very day of admission, the patient's life would, most probably have been saved- Defendant-surgeon's plea of refusal by patient to give his consent to the operation which was the reason why operation could not be performed on the very first day not accepted either by the trial court or the High Court, as there was no mention in the case sheet of the patient that consent was sought and the same was refused by the patient-Held: the burden of proof that consent was sought and it was refused was upon the one who takes such a plea particularly when the patient himself has died and held the doctor negligent for failure to perform an emergency operation. Compensation of Rs. 37,000/- awarded. [Dr. T.T. Thomas v. Elisa, AIR 1987 Ker. 52: 1987 ACJ 192 (Ker.-HC).]
3. Surgery-Consent-Death after thyroid surgery-Proper treatment given-Oral consent sufficient-No negligence-Foreign and Indian case law on medical negligence discussed- The complaint was regarding alleged negligence of the doctor in thyroidectomy operation on account of which the patient had died. The State Commission, after going through and examining case history and treatment record of the patient, came to the conclusion: A perusal of Exhibit 8-6 and the treatment given to the patient after she failed to revive, show that nothing has been left undone to her. Despite this emergent treatment, the patient has collapsed. We are not able to find any negligence in the management of this patient after the operation." The State Commission also held that when oral consent of the patient and the relative is taken, it is enough. The State Commission while dealing with this case, have discussed and analysed a good number of Indian and Foreign decided cases on Medical Negligence which are being reproduced here for the benefit of the readers.
Medical Negligence is defined as want of reasonable degree of care and skill or willful negligence on the part of the medical practitioners in the treatment of a patient with whom a relationship of professional attendant is established so as to lead to his bodily injury or. permanent disability or loss of life. As pointed out by this Commission in a very recent decision rendered in R. Gopinath v. Eskaycee Medical Foundation and Another, OP No. 199/91 dated 10.4.92, the law on the subject is very considerate to medical profession. In Hatcher v. Black. The Lancet, 154-2-880, Lord Danniel opined that-
, 'The jury must not find a Doctor negligent simply because one of the risks inherent in an operation actually took place or because as a matter of opinion he made an error of judgment. They should find him guilty only when he had fallen short of reasonable medical care. Similarly, Lord Justice Denning observed that we should be doing a disservice to the community at large, if we were to impose liability on hospitals and doctors for every thing that happens to go wrong. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure, Roe v. Ministry of Health, 1954 (2) All ER 131, Mr. Justice Barrie in Moore v. Lewisham Group, HMC (1959) observed that when there are two genuinely responsible schools of thought about the management of a clinical situation, the Courts could do no great disservice to the community or the advancement of medical science than to place the hall-mark of the legality upon one form of treatment.' ,
As observed by Lord Nathan in his book-Medical Negligence, a mistaken diagnosis is not necessarily a negligent diagnosis. In Mitchel v. Dicksen, (1954) APPD 519, Innes, ACJ observed: No human being is infallible and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of the deceased condition. A practitioner can only be liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the practitioner." A reference to some of the decided authorities would explain the legal position better. In Wood v. Thurston, 1953-1-C.L.C. 687, a drunken man was brought to the casualty ward of a hospital with a history of having been run over by a motor lorry , with 18 broken ribs, a fractured collar-bone and badly congested lung. The surgeon did not examine him as closely as the case required and had even failed to use his stethoscope which could have enabled him to discover the patient's true condition. Added to that, he permitted the patient to return home who after a few hours died. The surgeon was found negligent in failing to make a proper diagnosis. Another typical instance of negligence in diagnosis is Edler v. Greenwich & Deptford Hospital, The Times, March 7, 1993, where a child complained of severe abdominal pain and vomiting. On being asked by the doctor where the pain was, she indicated generally her stomach and winced when the right side of the abdomen was palpated. The doctor failed to diagnose appendicitis, the existence of which the circumstances clearly indicated. He was rightly held negligent in failing to exercise proper care and diagnosis. Now-a-days where injection therapy has become so common, there may arise many situations in which a doctor may find himself guilty of negligence. He may, for instance, inject a wrong solution by mistake or oversight. He may inject the fluid into artery instead of into a vein or use a solution intended to be injected intramuscular as one intravenous, or break the needle in the body of the patient. Anyone of these mistakes may result in disaster to the patient, and there can be no two opinions as to the civil liability of the practitioner for the consequences Kameswara Rao:s ww of Negligence. 1991 edition, p. 709.
The case of Antony v. Grey, (1936) 1 All ER 540, may be taken as an illustration of the type of cases where an injection was given at a wrong place, that is, into an artery instead of into a vein, or into vein instead of into the muscle. There a patient succeeded in an action for negligence against a medical man who was treating him for malaria by giving quinine injections in the buttocks. On one occasion in giving the injection he travelled beyond the safe area for injection and injured the patient's sciatica nerve, with the result that the patient was permanently lamed. Again, in a case reported in the British Medical Joumall where the complaint was that thiopentone had been injected into an artery, the hospital authorities admitted the negligence. In Collins v. Hertfordshire County Council, (1947) 1 All ER 633, a patient while undergoing an operation was killed by an injection of cocaine which was given by the operating surgeon in the mistaken belief that it was procaine. The operation surgeon had ordered procaine on the telephone, but the resident house surgeon had misheard' 'procaine' , as' 'cocaine' , and had told the pharmacist to dispense a mixture which was in fact lethal. The mixture prepared by the pharmacist according to instructions was administered by the operating surgeon without checking. It was held that the operating surgeon was liable in negligence. The responsibility of the surgeon for things done or left undone in the operation theater has been the subject-matter of consideration in what are known as "swab cases" and "forceps cases' .Leaving behind the' 'swab' , and' 'forceps' , in the body of the patient at the end of an abdominal operation is areal and grave danger and the liability of the surgeon for negligence, has never been in doubt.
In Urry v. Bierer2 a 10 inch square pack was left in the patient's abdomen after a caesarean operation. The operating surgeon did not take any special precautions to guard against the possibility of a pack being overlooked, but relied entirely upon the sister's count. Lord Pierson held that the surgeon was negligent. In a Canadian case3 the surgeon was found negligent when a pair of forceps was left behind in the patient's abdomen after a caesarean operation. It is thus well settled that negligence can be attributed to a surgeon only if his mistakes are of such a nature as to imply absence of reasonable care and skill on his part. It is also equally well settled that the burden of establishing negligence is on the complainant. He has not only to establish negligence on the part of the medical practitioner, but also the proximate causal connection between the alleged negligence and injury4. [M. Arunachala Vadivel and Ors. v. Dr. N. Gopalakrishnan, 1992 (2) CPJ 764 (TN SCDRC).] 4 ) Surgery-Prostate gland biopsy-No malignancy reported-Later on discovered prostate cancerous-No negligence- The complainant, aged 72 years was advised surgery for enlarged prostate by the opposite party. He was referred to Dr. Neeraj Nag pal, MD to opine about the fitness to undergo surgery, who however, after necessary tests opined that there was no active contra-indication for TUR surgery. After surgery, the prostate gland pieces removed were sent for biopsy report to Dr Mrs. B.K. Aikat, who stated that there was benign hyperlasia of the prostate and no malignancy was seen. Subsequently, the complainant developed complications and after 6 months during review of the biopsy slides at the POI it was discovered that the prostate was cancerous. The Commission held that there is nothing whatsoever to indicate that Dr. Nag pal's pre-operative opinion was palpably wrong or patently negligent. It was also conceded before the Commission, that there inevitably would be chemical changes in the slides I. Peters v. Fulllar, BMJ dl. 27.3.1954, p. 767. 2. The Time.\" 161h March. 1955. 3. Gloning v. Miller, (1954) IDLR 372. 4. Vide 1984-SC-1570. by the mere passage of time and dependent on the manner and method by which they were preserved, if at all. The Commission also held that a variation of expert medical opinion cannot be labelled as negligence. [pyare Lal Venna v. Dr. A.K. Gupta & Ors., 1993 (3) CPR 144 (Har. SCDRC).] 6 ) Surgery-Consent-Removal of testis without consent-Vexatious complaint- the complainant alleged that during operation for left inguinal hernia, his left testis was removed negligently and without consent. On account of this he suffered and has become handicapped. The State Commission on the basis of evidence placed on record, and opinion of expert witness held that the removal of testis was done to avoid gangrenous Importance of Record Keeping If any legal problem arises than properly maintained records are of utmost importance. They are proof of what one has done actually for his patient. Record includes. a.) Informed consent. b.) Chronological order of progress of disease and treatment, investigations, opinions, X-rays etc. c.) Details of procedure or surgery or anaesthesia given. d.) Record of investigations be it radiological, pathological or reports of CAT or MRI or any other opinion of specialist or consultant. e.) Record includes record of refusal of treatment or investigation or surgery. f.) Records of adult patients are maintained for 3 years and children for 21 years. (3+18 years). IMPORTANCE OF INVESTIGATIONS / X-rays/ MRI/ CAT SCAN/ SONOGRAPY Importance of investigations: In modern time a proof of establishing diagnosis is most essential. A documentation of such diagnosis can be done by well-planned out investigations. One must avoid unnecessary investigations. One must prefer non-invasive investigation or invasive one. Routine investigation to get basic knowledge about patient’s condition is essential. Legally speaking investigations speaks and vouches for correct diagnosis and indication for treatment and surgery performed by doctor. Few rules for asking investigations are in following fruitful and beneficial manner:
1. Define the diagnostic dilemma or differential diagnosis properly.
2. Ask yourself that after getting the results of investigation you will narrow down in your diagnostic dilemma or differential diagnosis.
3. Avoid asking special investigations routinely. Only Basic investigations like: Blood count. Stool, urine, etc. could be under taken routinely. Diseases caused by bacteria should be cultured
4. Is precise diagnosis must before proceeding for management and treatment or gross diagnosis will be sufficient.
5. What difference it will make if particular investigation is not done will it harm patient?
6. What possible harms can be done to patient while undertaking particular investigation. Can it cause death?
7. Will cost of investigation burden patient more than it will benefit him ?
8. Is investigation required urgently or can it be postponed ?
9. Is there any way to reach to diagnosis e.g. follow-up etc. which could avoid investigation.
10. All the circumstances related to in terms of its need, urgency, cost, benefit should be told to patient.
IMPORTANCE OF REFERAL TO SPECIALIST
If time and condition of patient permits one should obtain expert opinion in " out of the routine" cases and all serious patients. Importance of seeking medical history and information from relatives and patients as described and annexed to consent from. Why reference to specialist is needed and when?
1. For confirmation of the diagnosis and management plan of a particular patient.
2. All serious patient should get benefit of specialist so as to avoid "missed chance" situation later on when patient becomes worse.
3. All unusual cases must be referred to specialist.
4. More than one persons opinion, if opinion concurs, has better value in the law courts in case of any legal problem, if any, arises later on.
5. References are made to specialist if any procedure can not done with out his help. Special skill is needed for the procedure which only specialist can offer. eg. Venesection, Lumber puncture
ANTICIPATING COMPLICATIONS KNOWN AND UNKNOWN COMPLICATIONS OF DISEASE, INVESTIGATIONS AND PROCEDURE:
One is expected to take reasonable standard care for known complication and must explain patient and relatives in detail and to their satisfaction all these complications. Unknown complication arise out of a situation must be tackled in goodfaith, sometimes with adventure to save life. One should do utmost to save life and let it be known and felt by patient and relatives. Few rules to remember while tackling complications:
Calculate drug does properly as per kilo of body weight particularly for drug, which have depressant action on respiration and heart. Give these drugs after proper dilutions. Give drugs very slowly if needed to be given intravenously so as to avoid any unknown complications.
Anticipate known complications and be prepared to tackle them in time and effectively. Keep ready life support system. Life threatening unknown complication should be tackled with out fear of " what people will think " Patients life is of supreme importance and one can not even wait for consent in unusual life threatening situations. (Unforseen complication teaches a lesson to each doctor and may help in advancing medical treatment).
Law courts are not going to hold you responsible for any untoward incident or even death as a sequel of any unknown complication or any error of judgement or misadventure. What is required of a doctor is standard, reasonable medical care of an average medical professional. INSURANCE
Insurance and Doctors: Insurance is a special contract where payment by insurer is contingent on liability arising out of contingent loss. Insured pays consideration in terms of premium to insurer. On same principles of insurance doctor’s indemnity policy is based.
Doctors indemnity policy: Any liability arises out of civil litigation insurance company will pay for the insured amount (indemnity covered for). Limit of insured amount per case during the year or all cases during the year should be same. Minimum premium is for physician and is double for surgeon, triple for plastic surgeon. There are number of exclusion clauses which must be studied before taking indemnity cover from insurance companies. Generally it is RS 1000/= for RS. 10,00,000/+ of insurance for physicians.
Doctors composite package insurance: It covers building, contents of dispensary or hospital and consulting room including furniture, fixture, fittings, stocks of medicines, medical instruments and kits and electronics items, neon sign board and doctors professional indemnity etc. Same contents can be covered for burglary, housebreaking and theft, finality guarantee for cashier, compounder or other authorized employees. Limit for fidelity is 20,000/= also covers money lost in transit. Other insurances:
a.) Mediclaim: Covers disease, which needs hospitalization, all expenses during hospital stay. b.) Personal accident policy: covers any type of accidental injuries or death anywhere in world and provides for weekly compensation for the loss of income incurred due to accident. c.) Motor car insurance policy. Thanking you For MIC Manager ( Services)