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Main Story
Legally Matters
Often in critical care, not informing the patient's attendant
at every step can land the doctor and hospital in a legal soup. Sonal Vij
discusses the major medico-legal issues that are prominent in this branch of
medicine
 Critical
care is a branch of medicine where life and death are those surreal lines between
which the patient is wavering. Thus, medico legal issues are more significant
in critical care than any department. After all, it's the life of a patient,
which is at stake.
A Challenging Role
Often, it is a challenge for doctors to deal with multiple
patients as well as keep the patients' attendants in loop at every step, especially
in cases of emergency where every minute counts. When a patient comes in a critical
condition, the doctor is the one who is responsible for his/ her treatment.
The patient attendant's are often anxious and tensed.
As of today, there are no laws pertaining to critical care. The guidelines which
are followed are based on previous cases. Thus, it makes dealing with the cases,
even more challenging. Dr Harsha Jauhari, Chairman, Medico-legal Committee,
Sir Ganga Ram Hospital, Delhi, explains the complexity. He says, "There
are guidelines in workman's compensation, where the cost can be calculated based
on various factors, but in critical care, there are no yardsticks present."
The Charges
A doctor can face many allegations. Elaborates, Dr Suganthi Iyer, Assistant
Director-Medical, PD Hinduja Hospital, Mumbai, "In civil court, the doctor
can face damages due to alleged deficiency in administration of treatment. These
damages could be physical (temporary or permanent disability, which may be partial
or total). It could even be death or acceleration of death. It can also be inadequately
qualified staff, improper decision in method of treatment or in rendering of
service (e.g. wrong dose)."
In criminal court, there can be allegations like reckless, rash and grossly
negligent treatment (total lack of care and precaution or being totally apathetic
to the patient). Here, the level of negligence is gross and obvious and can
be even proved in consumer court (like in a civil court).
The Rising Threat
Due to rise in the awareness of consumer courts, more and more cases are registered.
"Today, anyone can go to the court and s/he doesn't have to pay a single
penny and s/he can sue the hospital for crores. If the complaint filed is found
to be frivolous, the maximum amount s/he will be asked to pay is Rs 10,000 and
we, the hospital if found guilty have to pay upto crores," laments Dr Jauhari.
Also, many times, there is misuse of the power by the patients. "We deal
with patients everyday who threaten us that they will file a case against us
if we don't reduce the cost of the treatment. Especially in cases of death,
they are unwilling to pay the bill," shares Dr Jauhari.
- Parmanand Katara V/s Union of India
- Paschim Banga Mazdoor Khet Samity V/s State
of West Bengal
Hakim Shaikh a member of Paschim
Banga Khet Mazdoor Samity fell off the train on July 8, 1992 at 7.45
pm in West Bengal, due to which he sustained serious head injuries and
haemorrhage. He was shuttled across to and fro around more than eight
medical institutions and he was refused treatment either on grounds
of lack of facilities or 'no vacancy' and so on and ultimately received
treatment only on July 9 in the afternoon.
In Parmanand Katara V/s Union of
India, a scooterist was knocked by a speeding car. Seeing the profusely
blooding scooterist, the person on the road took him to the nearest
hospital where he was refused treatment and referred to another hospital
20 kms away, which the doctors said, was authorised to handle medico
legal cases. But, the victim succumbed to his injuries on the way. Looking
at the above instances, the following has then been adopted:
- Every injured citizen should be instantaneously
given medical aid to preserve life and thereafter the procedural law
should be allowed to operate to avoid negligent death. The efforts to
save the person should be top priority for both, the medical professional
and of the police or any other citizen who happens to be connected with
the matter, and there should be no legal impediment to attend upon an
injured person who needs immediate medical assistance.
- Preservation of human life is of paramount
importance, since once life is lost, the status quo ante cannot be restored.
It is an obligation of those who are in-charge of the health of the
community to preserve the patients' life whether he be an innocent person
or a criminal, so that the innocent man be protected and the guilty
man be punished. Doctors, whether at a government hospital or otherwise
have the professional obligation to extend their services with due expertise
for protecting life. This obligation being total, absolute and paramount,
laws of procedure, which would interfere with the discharge of this
obligation, cannot be sustained and should give away.
- Providing adequate facilities for the
citizens is an essential part of the obligation undertaken by the Government
which is discharged by running health centres which provides medical
care to persons seeking to avail these facilities. Article 21 of the
constitution imposes an obligation upon the state to safeguard the life
of every person. The Government Hospital run by the State and the Medical
Officers employed therein are duty bound to extend the medical facilities
to observe human life and failure of providing timely medical treatment
results in violation of his right to life under article 21 of the Constitution
i.e. 'Right to Life'.
The Medical Council of India (MCI)
expects medical practitioners to give timely medical care to save injured
persons whether he is injured in accident or otherwise. It is submitted
that the formalities and legal laws should not stand in the way of the
treating doctors. It should be the duty of the doctor in each and every
casualty department of the hospital to attend and render medical aid
immediately to such persons and take care of the formalities under the
Criminal Procedure Code later on. The life of a person is far more important
than legal formalities.
- Item 13 in the Code
of Medical Ethics reads as follows: 'The patient must not be neglected.
A physician is free to choose whom he will serve. He should however
respond to any request for his assistance in an emergency or whenever
public opinion expects the services. Once having undertaken a case,
the physician should not neglect the patient, nor should he withdraw
from the case without giving notice to the patient, his relatives, or
his responsible friends. No medical practitioner shall commit an act
of negligence that will deprive his patient of necessary medical care'.
The above were decided in Parmanand Katara V/s Union of India
and Paschim Banga V/s State of West Bengal.
Avoiding Pitfalls
Elaborating on how to avoid these charges, Dr
Suganthi Iyer, Assistant Director, Hinduja Hospital, Mumbai, sheds some
practicing principles:
- The doctor should be adequately qualified
to accept the case.
- There should be proper decision in mode
of treatment
- Exercise care, diligence and caution in
actual administration of the treatment
- Adopt a mode of treatment or procedure
which is currently in vogue or accepted mode of practice as described
in standard text books
- Do not give guarantee or warranty with
respect to outcome of treatment
- Establish a good rapport with patient/
relative.
- Keep patient/ relative updated about the
condition of the patient and also the prognosis. The doctor should not
hesitate to inform bad prognosis
- Update yourself on more recent modes of
treatment
- Good documentation of physical findings,
reports, treatment advised and administered.
- Refusal of treatment by patient/ relative
to be noted
- Answer all queries of patient/ relative
- Be there around during
crisis and not delegate to juniors
However, if the attending doctor has done his best and rendered
standard care then he is not responsible as nothing more could have
been done. But he should have evidence of the same by proper documentation
of treatment rendered.
Since the doctor is agent of hospital, all the liabilities of the doctor
are transferred to the hospital. "In addition they have primary
liability of infrastructure i.e. equipment to be in proper working condition.
If damage occurs to patient due to faulty equipment then hospital is
directly liable," says Dr Iyer.
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Urgency
In urgent situations, there can be the following categories of situations.
Critical: A situation in which care is needed within
seconds (viz acute laryngotracheal obstruction).
Immediate: Situation in which care is needed within
minutes (eg tension pneumothorax or major arterial or venous haemorrhage).
Urgent: Situation in which care is needed within the
'golden hour' (eg major burns or multiple organ injuries).
Deferred: A situation which demands that care is needed
as soon as practically possible (eg injury is not life threatening or patient
is beyond hope of recovery or already dead).
The accurate judgment in which category the patient falls has to be done by
a senior and experienced clinician. "Based on these situations, if a doctor
doesn't do what s/he is supposed to do or does what s/he is not supposed to
do, there can be legal charges against him/ her." This is what is explained
in the Bolam principle.
Emergency Care: What the Law Says
 Firstly,
in the case of emergency care, a doctor is free to choose whom s/he will serve
or treat. "S/ he shall, however, respond to any request for his assistance
in an emergency on humanitarian grounds. Prior consent is not necessary for
giving first aid or emergency treatment," says Dr Iyer. However, unfortunately
it is seen that due to shortage of beds in hospitals, even an emergency is turned
away by the doctors. In many hospitals, there is no availabili ty of even observation
beds. Also, once the doctor takes up a case s/ he cannot abandon the case/ treatment
unless another doctor takes up the case.
The second issue is that of consent in emergency. Lawfully, a doctor can give
treatment to any patient incapable of giving consent as long as the treatment
is in the best interest of the patient. The treatment given should be in order
to save the patient's life, ensure improvement and/ or prevent deterioration
of his/ her physical and mental health. Dr Iyer explains, "In cases of
emergency or unconsciousness all considerations regarding consent will be set
aside and the doctor has to do whatever is necessary to save the life of the
patient or prevent disability or unnecessary pain and suffering." She adds
that however, if there is an opportunity to obtain consent it must be obtained.
Echoes Dr Jauhari, "Many a times if a doctor doesn't wait for the consent
and goes ahead with a surgery and if the patient dies, the relatives often come
and argue with the doctor for conducting the surgery."
There has to be a good standard of care. According to Bolam principle, a practitioner
must bring to his task a reasonable degree of skill and knowledge and must exercise
a reasonable degree of care. "If a doctor is providing care to someone,
s/ he will be judged on the basis of particular circumstance of each case. A
doctor is expected to provide the same degree of care as that of an average
person in his/her field of work would have reasonably done. A person is not
liable in negligence because someone else of greater skill and knowledge would
have given treatment in a different way, nor would he be guilty of negligence,"
explains Dr Jauhari.
Liability of the Hospital
The hospital is liable for the patients' life. From the moment a patient enters
the hospital, the responsibility of his/ her life lies with the hospital staff
and thus the hospital. The hospital authorities are responsible for the entire
staff be it the doctors nurses, technicians and other paramedical and support
staff as they are the agents of the hospital to give the treatment and the hospital
cannot disown their responsibility. (Harjot Ahluwalia V/s Spring Meadows Hospital).
Hospital authority is responsible if they fail to provide sufficient qualified
and competent staff (Wilsher Vs Essex).
Transport: Hospital is Responsible
The patient should receive first aid and be stabilised prior to transportation
in ambulance. Denial of first aid on any grounds like non-availability of bed,
etc amounts to violation of 'Right to Life' under Article 21 of Indian Constitution.
Dr Ravi Khanna, New Born Child and Critical Care Centre, Delhi, informs, "The
hospital has to ensure that the infrastructure is in perfect working condition-
the biomedical equipment, the monitor, ventilator, oxygen cylinders, etc as
if there is any damage to the patient during transportation due to equipment
claimed not available or not in working condition then the liability would be
on the hospital." In Govindrajan Vs Integrated Coach case, the complainant's
wife suffered massive heart attack and died on same day. The claim was that
the ambulance had no oxygen cylinder.
Dr Gopinath Shenoy, Obstetrician and Gynecologist, Medico Legal Consultant and
Former Judge of the Consumer Court, says, "It is seen, if a patient dies
on the way while being transported , both, the hospital which has sent the patient
as well as the hospital where the patient is being sent can be taken to court
by the patients' relatives." However, if a hospital proves that the ambulance
was in right condition and appropriate medical staff was in the ambulance to
take care of the patient, then the hospital cannot be found guilty.
The Conflict: End-of-life & DNR
There is complete absence of legal guidelines on most issues related to end-of-life
care. The Do Not Resuscitate (DNR) order is still not a documented legal practice
in India. In most cases, it is a verbal communication between the clinician
and the patient's relative or the caregiver. The autonomy of the patient also
remains a weak concept. The doctor is best qualified to judge whether the treatment
is medically futile. However, only a patient can decide whether continued treatment
is acceptable. On the contrary, the financial status of the patient appears
to be the deciding factor.
The current law states that the doctor has no ethical obligation to provide
life sustaining treatment if s/ he feels that it's futile, but the doctor has
the responsibility to inform the patient about that opinion. If the patient
requests the treatment, the doctor has to take necessary measures to transfer
the patients care to other doctor or another hospital that will follow patients'
wishes. At the same time, all other care that is both medically indicated and
agreed to by the patient must be continued.
However, Dr RK Mani, Immediate Past President, ISCCM and Director, Pulmonary-Thoracic
Unit, Chief, Medical ICU, Fortis Rajan Dhall Hospital, says, "Unfortunately,
the suicide laws are confused with end-of-life laws. This is a challenge that
doctors face all the time. They are often confused with Article 306 and 309
which deal with suicide. It's not only doctors but also many lawyers who feel
that if a doctor withdraws the life support after patient's consent then the
patient is committing suicide and then the doctor is supporting it. If there
are no laws pertaining to end-of-life or even DNR, how can one call it against
the law? If one refuses certain treatment, it doesn't mean one is committing
suicide." Dr Gopinath terms it as passive euthanasia. Dr Iyer agrees, "In
India, there are no laws on 'end-of life' but the code of medical ethics does
not permit euthanasia."
Dr Mani adds that there is a serious need for some laws on this. The ISCCM is
working on framing a law. He also adds that he writes DNR when required. He
explains, "When there is no law which states that you cannot write DNR
then, you can't call it against the law?"
In Retrospection
Medical profession is a respectable profession where the doctor is looked upon
by the common man as the only hope, when the person is hanging between life
and death. But, they avoid their duty to help a person when he is facing death
when they fear it becoming a medico-legal case.
There is no doubt that the effort to save the life of a person should be the
top priority of the medical profession. But there is an apprehension which sometimes
prevents the doctors in spite of his desire to help a person, as he apprehends
that he will be a witness in the court of law where s/ he may have to go for
a number of days and have to wait for a long time and face long unnecessary
cross examination.
Hence, the doctors have to be assured that while discharging their duties to
save a human life, they would not face unnecessary harassment for interrogation
and other formalities. It is hoped that the law courts would summon a doctor
only if the evidence is necessary and that once summoned attempt should be made
to see that the doctors are not made to wait and waste time unnecessarily. It
is expected that the members of the legal profession should honour the persons
in the medical profession and not unnecessarily discourage the members of the
medical profession by avoiding unnecessary adjournments and cross-examination,
which prevents the medical people from discharging their duties.
Today, documentation is required at each step to prove that the doctor did not
intend any harm to the patient. It seems that we need 'Good Samaritan' laws
to give immunity to Indian doctors like the ones in the US. Good Samaritan laws
are meant for protecting from liability those who choose to aid others who are
injured or ill. They are intended to reduce bystander's hesitation to assist,
for the fear of being sued or prosecuted for unintentional injury or wrongful
death.
Undoubtedly, there is also a dire need for end-of-life laws so that a patient
can have a dignified death as well as the doctors can relieve a patient fearlessly.
sonal.vij@expressindia.com
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