PowerPoint Presentation

MEDICAL NEGLIGENCE Dr. Rajesh kamath Assistant Professor – senior scale PSPH MAHE.

MEDICAL NEGLIGENCE. Defined as : “The breach of duty (to exercise a reasonable degree of care and skill) owed by a doctor to his patient… …resulting in some physical, mental or financial harm or disability.” It is an act of omission or commission that a reasonably qualified doctor would not commit..

MEDICAL NEGLIGENCE. It is a form of conduct caused by carelessness… …constituting a departure from the standards of care generally imposed by the society… …and expected from the doctor..

MEDICAL NEGLIGENCE. For negligence of any kind to be proved, the patient ( plaintiff ) has to prove that : 1. The defendant ( doctor ) owed a duty of care to the plaintiff. 2. The defendant was in breach of the duty. 3. The plaintiff suffered damages as a result of the breach of duty by the defendant..

MEDICAL NEGLIGENCE. 1. Duty of care to the patient : A doctor’s duty of care to the patient starts when the doctor-patient relationship is established, which happens when...??? 1a. A patient approaches a doctor for advice / treatment. Even if not expressed verbally,… …the demeanour and actions of the patient ( OPD registration, entering the clinic, expression of pain/problems) is enough expression. 1b. If the patient is unconscious and the doctor starts attending to the patient..

MEDICAL NEGLIGENCE. Once the doctor patient relationship is established, it becomes the doctor’s duty to...?? …exercise a reasonable degree of care and skill in diagnosis and treatment of the patient..

MEDICAL NEGLIGENCE. 2. Breach of duty ( Deficiency in service ) : Breach of duty of care means…??? …the failure on the part of the doctor to…??? …exercise a reasonable degree of care and skill in the treatment of the patient..

MEDICAL NEGLIGENCE. A doctor is not liable for error of judgement either in diagnosis or in treatment, so long as he has applied a reasonable standard of skill and care. The doctor must possess a reasonable degree of proficiency and apply that proficiency with a reasonable degree of care. A doctor of a particular standing, as regards qualifications and experience, is expected to have a standard of knowledge and capability / competence commensurate with his professional status..

MEDICAL NEGLIGENCE. Departure from acceptable medical practice or… …acts caused by a lack of professional knowledge in the particular field would be considered as… …failure to exercise a reasonable degree of care and skill..

Burden of Proof. The burden of proof usually rests with the plaintiff. However, in some cases where the facts are very obvious, such as…??? …Amputation of the wrong limb, or…??? …leaving a surgical instrument in the operated part of the body,… …the onus of proof that the doctor was not negligent, is shifted to the doctor..

Burden of Proof. In legal parlance, the situation is called – Res Ipsa Loquitor – meaning that the facts speak for themselves..

MEDICAL NEGLIGENCE. 3. That the plaintiff suffered damages as a result : A patient cannot sue the doctor if no damages have occurred, however negligent the doctor might have been. S/he must have suffered some damages or loss that can be measured and compensated for in terms of money, such as loss of hearing, decrease in life expectancy, mental torture etc..

MEDICAL NEGLIGENCE. Correlation between the Deficiency of service and the Damages : A direct causal relationship must be established between the…??? …deficiency of service and the…??? …damages suffered, to prove that…??? …the damages caused are attributable to the deficiency of service..

TYPES OF NEGLIGENCE. Depending upon the degree of negligence and…??? …the severity of damages, negligence may be categorised as…??? …Civil or Criminal negligence..

CIVIL NEGLIGENCE. Civil negligence : Acts of negligence of less serious nature are categorised as Civil negligence. These are treated as crimes against the individual who brings an…??? …action for damages against…??? …his medical attendant for the alleged act of negligence..

CIVIL NEGLIGENCE. The compensation is sought in accordance with the…??? …extent of damages. There is no involvement of the police in such cases and the plaintiff is free to…??? …withdraw the case any time with an out of court settlement or for any other reason..

CRIMINAL NEGLIGENCE. These are cases of gross degree of negligence that amounts to a reckless disregard for the…??? …life and safety of others. The negligence here is so serious that it is treated as a crime against the State deserving appropriate punishment. Ex. : Killing a patient by negligently administering a dangerous drug without knowing its effects or taking due precautions..

CRIMINAL NEGLIGENCE. Similarly an unqualified surgeon performing a major surgery and killing the patient due to lack of knowledge / surgical skills would amount to criminal negligence. In these cases, the victim files a report with the…??? …local police who bring a criminal action against the negligent individual..

CRIMINAL NEGLIGENCE. Justice is done by…??? …punishing the accused. Victim does not get any…??? …compensation. However, for compensation, a separate…??? …civil suit may be filed by the victim. Since it is treated as a crime against the state, the victim can not…??? …withdraw the suit..

CRIMINAL NEGLIGENCE. Relatively rare (References-6) : In the U.S., where prevalence of legal recourse is the highest : Clear cut data is not available, this data is from 3 papers. Between 1809 and 1981 – 15 cases. Between 1981 and 2005 – 30 cases.

Common acts of negligence. 1. Failure to ..??? …attend when requested by the patient, resulting in injury to the patient. 2. Amputation of the wrong part of the body. 3. Wrong operation. 4. Wrong patient. 5. Wrong site..

Common acts of negligence. 6. Leaving behind objects at the…??? …operation site. 7. Administration of… …potentially dangerous drugs without…??? …informed consent. 8. Administration of wrong medicines by nurses/doctors..

Common acts of negligence. 9. Wrong / mismatched…??? …transfusion. 10. Burns caused by…??? …hot water bottle / diathermy. 11. Baby burns in…??? …phototherapy unit in Neonatal physiological jaundice..

NEGLIGENCE. In Civil negligence, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount of degree of negligence that is determinative of liability..

NEGLIGENCE. In practice it may happen that the patient suffers good damage but caused by small degree of negligence, which may not be sufficient for…??? …criminal prosecution of the physician..

NEGLIGENCE. As against this the patient may suffer small damage but the negligence may be gross. In this situation as he has suffered less damage he may not like to go for criminal prosecution of the physician because the patient is more grieved by the damage he has suffered rather than the degree of care or lack of it that the physician has exercised..

NEGLIGENCE. Either way it is futile to charge the physician under criminal law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. What is Mens rea??? “Guilty mind” or “criminal mind”.

Contributory negligence. When a patient, by his own want of care, contributes to the damage caused by negligence of the doctor, he is said to be guilty of contributory negligence. For example, some negligence on the part of the doctor results in some complication / disability,… …but if the patient, by refusing to carry out the precautionary measures or remedial treatment recommended by the doctor,… …or by indulging in activities forbidden by the doctor, further exacerbates the damage, he would be blamed of contributory negligence..

The Michael Jackson case.(2). Dr. Alon Steinberg, a cardiologist for 13 years and board-certified in cardiovascular diseases, Cardiac CT and Nuclear Cardiology, testified that he was not an expert in anaesthesia or pharmacology and that Murray was not board-certified in June 2009. Of the three degrees of breaching the standard of care (no deviation, mild deviation, extreme deviation), this case was the first time Steinberg has seen extreme deviations from the standard of care. Steinberg testified that propofol is only used in cases of needing deep sedation when the patient will go through a significantly painful procedure and there are risks that the patient could stop breathing; that is why it is used with constant monitoring and emergency equipment on hand. "..

THRILLER. He testified that he only uses propofol with performing cardioversions and that he is required to have an anaesthetist present. For instances of mild and moderate sedation, Steinberg stated that he would use benzodiazepines and would never prescribe propofol for insomnia. He received Murray's case and was asked to review his acts and omissions against the standard of care. The review was based on Murray's own words from his police interview previously heard by the court. His findings: "Six separate and distinct extreme deviations from the standard of care”..

BAD. 1. Propofol is not medically indicated for sleep. "I have never even heard of it being used for insomnia, it is a very powerful surgical sedation agent.“ There was also no informed consent signed by the patient. Risks, benefits, indications and alternatives should all be explained, understood and agreed before any treatment..

DANGEROUS. 2. Propofol was being administered in the home, with no equipment, no medical personnel, no back-up and no physical observation by the attending physician. "Each of these individually would be an extreme deviation on their own"..

The M.J. case. 3. Improper care during arrest. Jackson had a respiratory arrest, and Murray did not follow the protocol for such an event. During respiratory arrest, the patient stops breathing, causing the oxygen levels in the blood to drop lower and lower, which causes the heart rate to increase. Lack of oxygen weakens the heart, and the heart will have electricity present but will not contract (pulseless electrical activity). Finally, the heart's electricity dies (asystole).

The M.J. case. 4. Murray should have tried to arouse Jackson, placed an ambu bag over his mouth, cleared the airway, called 911 and administered flumazenil. Instead, Murray started chest compressions, which do not help respiratory arrest. "The heart was already working, he didn't need chest compressions". Even then, the CPR was of poor quality, since it should have involved having both hands on a hard surface rather than having one hand on a bed..

The M.J. case. 5. Failure to summon emergency help. Murray should have called 911 on his cell phone immediately. Instead he waited until 12:21 pm, which was approximately 20 minutes after Jackson stopped breathing. Help was four minutes away. "I would have allowed two minutes to check the situation before calling 911. He had a cell phone.".

The M.J. case. 6. Failure to maintain proper medical records. No informed consent. No records of Jackson's vital signs, doses given, responses to the medication. Murray was confused or dishonest about the records when they got to the emergency room..

M.B.B.S. – surgery – (3). “Sometimes an MBBS (or even a psychiatrist or anaesthetist) working in a government hospital may develop expertise in surgery during the course of duties assigned to him. What are the legal aspects of an MBBS doctor or a psychiatrist or an anaesthetist performing a surgery?”.

M.B.B.S. – surgery – (3). Dr M C Gupta (Advocate) MD (Medicine - AIIMS), LLM Health and Medico-legal Consultant, New Delhi Dr Gupta holds an MD (Medicine) from All India Institute of Medical Sciences (AIIMS), an LLB from Delhi University and LLM from Kurukshetra University. He has served as a faculty member at AIIMS for 18 years and as professor and dean at the National Institute of Health and Family Welfare. Currently, Dr Gupta is a practising advocate with health and medical law as the area of special interest. He is a member of the Supreme Court Bar Association and Indian Law Institute..

M.B.B.S. – surgery – (3). Dr Gupta Comments: 1) An MBBS is a graduate in surgery and hence he cannot be legally denied the right to perform surgery. However, law operates not in vacuum but in a real situation with respect to time, place and person. Certain surgeries could be validly performed in a remote place where there is…??? …no surgeon available to alleviate the suffering of people, especially in emergency,… but yet would not be expected to be done by an MBBS where qualified surgeons are easily available..

M.B.B.S. – surgery – (3). 2) No hard and fast rule can be made applicable in all situations. However, Dr.Gupta suggest the following guidelines would seem appropriate: a) An MBBS doctor can undertake those surgeries about which he has been taught/trained in his MBBS course and in which he is experienced. b) He should preferably not undertake surgery involving general anaesthesia. c) He should not routinely hold out as a surgeon, especially when a qualified surgeon is available in the area. d) Relaxation in the above norms may be permissible in emergencies where it is a question of saving life..

M.B.B.S. – surgery – (3). 3) Attention is drawn to the following guidelines issued by the Andhra Pradesh Medical Council regarding surgery that may be performed by MBBS doctors. What Can an MBBS Doctor do? (1) He can do all the Minor Surgical Procedures for which he is trained in MBBS Course and Housemanship. (2) He can do Deliveries and its related procedures as trained. (3) He can do National Programmes like Tubectomies & Vasectomies. (4) In emergencies if a qualified surgeon is not available in the near vicinity as a life savings measures he can do first aid and a Surgical Procedure based on his experience and ability. (5) He should not do Elective Major Surgical procedures and the care should be taken to refer to a nearby Hospital where a Surgeon/Gynaecologist is available.”.

M.B.B.S. – surgery – (3). 4) As regards performing surgery by an MBBS or an anaesthetist or a psychiatrist while in government service under orders of his superiors in a government set up, the doctor concerned would escape legal liability if…??? …he has given in writing and under acknowledgement to his superiors a representation on the following lines:…??? “Sir, I am not a surgeon but I am being given surgical duties for which I may be held legally incompetent. This is for your information and necessary action including sponsoring me for further studies in surgery.”.

M.B.B.S. – surgery – (3). 5) An MBBS doctor or an anaesthetist or a psychiatrist in private practice should not, in general, perform surgeries routinely, especially those that are major in nature, and should not hold out himself as a surgeon. He may, using proper discretion, perform surgeries in remote places where no surgeon is available or when there is an emergency situation. 6) In Surinder Kumar (Laddi) and another Vs. Dr Santosh Menon and others 2000;(III) CPJ 517, the Punjab State Consumer Commission held that… …there is no bar against an MBBS performing a Caesarean section merely on the ground that the doctor does not have a qualification in Gynae-Obs (Gynaecology & Obstetrics)..

Medicos Legal Action Group – (4). Dr Neeraj Nagpal, Convenor, Medicos Legal Action Group, Ex President IMA Chandigarh, says… Should Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 be challenged ? A number of doctors are facing litigation in various courts and fora on following issues : 1) Surgeon gives spinal anesthesia and performs surgery 2) MBBS doctor having done caesarean or other surgery 3) MD Medicine doctor practising as a cardiologist and doing echocardiography 4) MBBS doctor with house job in Gynae practising as a gynaecologist 5) MS surgery doctor doing colonoscopy and posing as Gastroenterologist 6) MBBS doctor running laboratory / ultrasound / X ray.

Training vs qualification. Anesthetists’ availability being a rarity in field in Government hospitals,… …surgeons themselves give spinal anesthesia and do caesarean, hysterectomy, hemorrhoidectomy, TURP, Fistula, hernia, hydrocele surgery and… …some even do cholecystectomy under self given spinal anesthesia. Most of them having gained significant experience in this do the same occasionally in emergency even in private sector after leaving Govt service. As long as everything is OK and cost to patient is low everyone is happy. If however an unfortunate incidence of a complication known to occur does occur then these are issues which are used to prosecute the doctor… …which makes him wonder how one thing could be legal in Government hospital but illegal in private..

Training vs qualification. Similarly MBBS doctors depending on their training and experience do minor and even major surgeries in the…??? …Community Health Centers and Sub divisional hospitals with permission and within the knowledge of the bosses. Even Government Multi Speciality Hospital sector 16 in Chandigarh does not have a DM cardiology doctor available but… …provides cardiology services treating heart attacks and is doing echocardiography, TMT and needful..

Training vs qualification. This is despite National Consumer Dispute Redressal Forum having declared this as outright negligence in Goyal Super specialty Hospital case. NCDRC has in fact advised the Govt to take stringent action against MD Medicine doctors practising as cardiologists. Delhi Medical Council has suspended registration of an MBBS lady doctor (Trained in St Stephens Hospital in Gynae) because she has written MBBS Physician & Gynaecologist on her board and letterhead. In Gujarat an MS surgery was arrested for doing colonoscopy and hence posing as a Gastroenterologist..

Training vs qualification. We tried to find out in Government Hospitals of Punjab whether these things are common and accepted practice in Government sector. We have received replies from about 20 hospitals in Punjab and these substantiate our view. If an MBBS can do a cesarean in Govt sector and not be negligent he cannot be negligent when operating in private sector if… …he does not falsely claim to possess qualification beyond MBBS..

Training vs qualification. Our point is very simple. What is standard accepted medical practice is not negligence as per law specially under CPA. We understand that a MCh GI Surgery may perform a Whipples procedure better… …but it does not make a MS surgery performing the same , illegal. The doctors who are trained in a speciality but do not have an MCI recognized degree in the subject still retain the expertise..

Training vs qualification. The purpose of any training cannot be only academic. Trained doctors may not be qualified specialists and superspecialists but they cannot be stopped from practicing the profession they have been trained for. In a country where patients may be literate but are far from being educated it becomes necessary to write on your board what diseases you deal with..