Year : 2019 | Volume
: 24 | Issue : 3 | Page : 158--161
Avoiding litigation in clinical practice
Department of Surgery, Institute of Child Health, Kolkata, West Bengal, India
Prof. Parthapratim Gupta
Department of Surgery, Institute of Child Health, 11, Dr. Biresh Guha Street, Park Circus, Ballygunge, Kolkata - 700 017, West Bengal
|How to cite this article:|
Gupta P. Avoiding litigation in clinical practice.J Indian Assoc Pediatr Surg 2019;24:158-161
|How to cite this URL:|
Gupta P. Avoiding litigation in clinical practice. J Indian Assoc Pediatr Surg [serial online] 2019 [cited 2020 Feb 25 ];24:158-161
Available from: http://www.jiaps.com/text.asp?2019/24/3/158/259765
With changes occurring in the societal attitude and raw consumerism, every patient and their family should be considered as a potential litigant, especially when health care has been declared as a service industry which is the foundation of breaking the bond, respect, and trust between the doctor and patient.
In our practice of pediatric surgery, we have to deal with our patients and the more stressed guardians. It is advisable to have photocopies of all your recognized degrees and diplomas and the registration certificate displayed in your consultation room. One should not print or use diplomas that they have discontinued with (e.g., Fellows of Royal Colleges need to pay a yearly membership fees to be in good standing) because in court of law the defendant doctor will be thought to be fraudulent. It is advisable to have a space on your letterhead for the legal guardian to sign which will automatically be attested by the doctor while signing his/her prescription – this naturally endorses the clinical history given to the doctor as noted (easier to defend in court of law) and also that they have been explained and understood the proposed plan of treatment and its complications if any. Time spent during consultation has got a lot to gain as more often than not the patient's family feels that you were very empathetic toward them and it has been seen that they are less likely to sue if the desired goal is not reached.
Informed consent means that the patient specifically consents to the proposed medical procedure. Informed consent is more than just consent. For a patient to give informed consent to a medical procedure, the health-care provider must inform the patient about all of the risks and complications that may reasonably occur during that procedure, however, minor they may be. Furthermore, the treating doctor should mention about alternative treatments available and what happens if no treatment is done. Only after a patient is truly informed about the potential risks of a medical procedure can a patient give informed consent to the procedure. The treating doctor should understand that the patient has given consent to the procedure and not to all medical errors while on treatment. The failure to obtain informed consent can be a form of medical negligence or may give rise to a cause of action for medical battery. This should be done in the language the patient or legal guardian understands.
It is advisable to have a counseling room for a detailed discussion with the patient's parents with a witness each from their side and the surgical team along with the written and signed consent form (with this audio visual, the litigants can't claim that they were coerced/forced to sign the consent form).
Disclose the likely expenses especially in case of expensive surgeries/procedures well in advance. Do not refuse to treat an emergency patient even if they do not have the ability to pay. Take a proper written acknowledgment from the legal guardians of the patient in case of failure to pay fees. Send a letter by “registered post acknowledgment due” demanding the unpaid fees if the same remains unpaid for a reasonable period. This not only helps in recovering the fees but also acts as a good defense in court. This protocol is all the more necessary nowadays as the patients taking doctors to court on charges of medical negligence only to avoid payment of fees are frequently reported.
Once the patient is charged a fee, even by a charitable hospital, it loses the legal immunity of being sued in the Consumer Court. Shree Sanatan Dharam Mahavir Dal Hospital v. Shiv Dial Singh and Anr (5MLCD a114; j291_August 2012).
Good medical practice is a defensible practice, which depends on staying within the limits of your own expertise, keeping up to date, and conducting audit, ensuring your administration is effective and does not allow the patients to slip through the net.
Documentation and documentation for each patient is of utmost importance.
Cases are won or lost on careful deliberation of records of the patient which must preferably be overseen daily by the consultant. Maintaining medical records in the prescribed format is compulsory even in emergencies. Appropriate entries regarding investigations, diagnosis, treatment, etc., must be duly made.
It is advisable to ensure that documents and medical records like discharge cards are written by one person as change in handwriting (or even ink) is often cited as evidence of fabrication. R Nagappan v. M/s Medindia Hospitals (5 MLCD a80; j198-June 2012).
Any entry made in the medical records, which is illegible or difficult to decipher always gives an impression of a callous approach and must be avoided at all cost. D H Kumari and Ors. v. The Director, Nizam Institute of Medical Sciences (5MLCD a 93; j225-JULY2012). In the present day and age, it is prudent to write the name of drugs in capital letters even better if print outs are kept available. Use standard abbreviations and short forms while writing medical records. But in discharge summary write full form, e.g., it is wise to write on discharge “four times daily” rather than QDS.
Do not accept a patient/continue treatment/perform surgery or procedure without having the requisite training or qualifications/equipment.
Consult the relevant specialist in cases where you have doubt whether the patient is within the area of your expertise. A doctor performing a surgery/procedure or accepting a patient knowing that the hospital/nursing home does not have the requisite facilities to manage the patient effectively is equally negligent and as liable as the hospital/nursing home. Smt Syamala v. Dr. D. Vijay Devi and ors (5 MLCD a26; j60-February 2012).
Keeping proper/legally valid medical records is a must and should include patient's complete name on each and every medical record. Record both the medical act performed or the advice given as well as the purpose/reason for that particular medical act/advice. Ensure there are no inconsistencies in different medical records or at different places in the same than erasing or putting white ink. Put a circle around the inconsistent remark and write the correct one by its side and sign. Take patient's/legal guardian's signature or initials on every page of consent form/medical records. Correcting medical records is permissible but fabricating or manipulating is both illegal and unethical, and if found by court, the consequences are disastrous as the doctor loses all sympathies of the court. Sathyaprabha Sujathan v. VenniyilDr. Sukumara Pillai Memorial Hospital and Anr.(5MLCD a40;j99-March 2012). Detailed notes of operation including types of suture materials used is mandatory. The concept of having detailed record is such that your peer can continue the treatment from midway, having perused the documents. Failure to do so tantamount to negligence. Always check preanesthesia assessment records before starting an operation. Always sign along with the OR nurse in prescribed format regarding the count of instruments, mops, etc., for every operation.
During surgery, if you find something unexpected, it is advisable to explain your plans to the legal guardians, before proceeding further (Do not hesitate to call the guardian within the operating room and show them the condition and explain your plan to cure, especially in cases of removal of organ, resection and anastomosis in emergencies, torsion testis etc. _ this is helpful in court of law as it would be on audiovisual record). One can ask the anesthesiologist to take the video of the proceedings. (This also acts as a deterrent for the patient's guardian to sue the doctor).
Clinical standards continue to improve but the complete eradication of error is an unattainable goal. For individual clinicians, there is no foolproof method of avoiding being sued (short of deserting clinical practice altogether), but attention to a few basic risk management principles reduces the risk and in the event of a claim, renders a successful defense more likely.
Claimants have to prove (Law of Tort)
They were owed a duty of care by their health-care providerThere was a breach of that dutyThat they suffered harm as a result.
Duty of care is established as soon as a treatment is proferred. Hence, the first contention of the claimant is easy to overcome.
The second requires demonstration that the care provided fell below an acceptable standard. This in India and most countries in the world is judged by the Bolam test which, in essence, states that care must be provided in accordance with accepted medical practice, as determined by experts in the field.
The third hurdle is demonstrating that the harm suffered by the patient was due to substandard care or, to put it another way, harm that would have been avoided if adequate care had been provided. Compensation is awarded only for pain and suffering and specific losses attributable to identified avoidable harm.
A doctor practicing in a specialty is a medical expert of that particular specialty in the court of law. In allegations of medical negligence (also in complicated cases), if a respectable number of doctors of your specialty agree with a certain course of action, one can (legally/ethically) continue with the same. This is the Bolam's law which defines the parameters of the standard of medical practice.
Audit is now an integral part of medical practice. This is what the General Medical Council has to say about it – “You must work with colleagues to monitor and maintain the quality of the care you provide and maintain a high awareness of patient safety. In particular, you must:
Take part in regular and systematic medical and clinical audit, recording data honestly. Where necessary you must respond to the results of audit to improve your practice, for example, by undertaking further trainingRespond constructively to the outcome of reviews, assessments, or appraisals of your performanceTake part in confidential inquiries and adverse event recognition and reporting to help reduce risk to patientsReporting to help reduce risk to patients.
Administration is not just for administrators. Unless basic systems are in place to deal with patient referral, follow-up, completion of clinical records, clinical correspondence, reviewing test results, and acting appropriately on abnormalities, all sorts of things can and do go wrong with potentially catastrophic effects for patients. Here is one example.
A woman in her early 40s attended her general practitioner complaining of intermenstrual bleeding. In preparing the referral letter, the doctor came across a cervical smear test taken 2½ years before which showed some abnormal cells and advised a repeat smear. Although that report was signed as having been seen, no action had been taken and the patient's condition had been left to deteriorate over the intervening period.
The temptation is always to think of communication as a process taking place between doctor and patient, in particular in relation to consent. In essence communication is an ongoing daily process between the primary doctor and the patient's legal guardian.
The information which patient's legal guardians want to know before deciding whether to consent to treatment or an investigation may include:,
Details of the diagnosis and prognosis, and the likely prognosis if the condition is left untreatedUncertainties about the diagnosis including options for further investigation before treatmentOptions for treatment or management of the condition, including the option not to treat and its likely consequencesThe purpose of a proposed investigation or treatment; details of the procedures or therapies involved (advisable to show them a video of the operation wherever possible), including subsidiary treatment such as methods of pain relief; how the patients should prepare for the procedure; and details of what the patient might experience during or after the procedure including common and serious side effectsFor each option, explanations of the likely benefits and the probabilities of success; and discussions of any serious or frequently occurring risks, and of any lifestyle changes which may be caused by, or necessitated by, the treatmentAdvice about whether a proposed treatment is experimentalHow and when the patient's condition and any side effects will be monitored or reassessedThe name of the doctor who will have overall responsibility for the treatment and where appropriate, names of the senior members of his or her teamWhether doctors in training will be involved, and the extent to which students may be involved in an investigation or treatmentA reminder that patients can change their minds about a decision at any timeA reminder that patients have a right to seek a second opinionWhere applicable, details of costs or charges which the patient may have to meet.
Prevention of Harassment of Doctors
With rising numbers of cases against doctors, the court has given some reprieve to the doctors from being harassed.
Taking the judicial notice of incidents where the doctors are being harassed by the police in the guise of investigation and unnecessary delay in the medical evidence by way of frequent adjournments or by cross-examination, the court held that unnecessary harassment of the members of the medical professional should be avoided.
The Supreme Court has warned the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case. Even a threat was given to the police officers that if they did not follow these orders, they themselves have to face legal action.
In the present litigious society with a great mistrust between patient and doctors, aided by misreporting, one has to be always aware of the potential threat of being sued. Hence, a detailed documentation, communication are the key factors to defend yourself in such unwanted situations. One has to have professional integrity. It is advisable not to criticize another doctor in front of patients. If someone seeks an opinion after being operated by some other surgeons at some other towns/hospitals without the desired results, instead of trying one up man ship, it is advisable to say “he/she has done the best as per the circumstances, let me see what is required if at all” – this would defuse the situation to certain extent.
Error in judgment is not negligence if it is recognized promptly and remedial actions taken. Failure to do so tantamount to negligence.
Surgical practice is like driving through an accident-prone highway. Make sure that there is a competent driver (stay within the limits of your expertise), ignition (informed consent) is working fine, engine oil and fuel (documentation/medical records) are enough for the journey, GPS (communication) setup done, and brakes (know when to stop) working fine !, to avoid accidents.
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