Medico-legal implications of a case referral/discharge

Case on 11/July/2020 around 7 PM.

 brief history

70 y male Patient came to the Casualty with the chief complaints of cough since 3 days

FEVER since 2 days& sob since 1 day.

Cough is insidious in onset, not associated with sputum, and Not Relieved with medications.

FEVER is insidious onset ,continuous and High grade associated with chills and rigors

Sob is sudden in onset, progressive in nature , aggrevated on exertion. 

 VITALS :  BP 100/60

PR :125BPM

SPO2 : 85% ON RA .

CVS : S1 S2 PRESENT

RS : BAE + 

Crepts + in B/L basal

Provisional diagnosis:  viral Pneumonia secondary to COVID 19??

At that time RTPCR and Rapid antigen test were not available in our hospital.

 In view of COVID pandemic we advised CxR and HRCT.

HRCT provisional report corads 4/5 in view of consolidation was given by radiology pg

So, we referred the case to COVID centre, in view of the same as per the hospital guidelines, but the next day report was corads 3/5

Meanwhile the patient expired the next day in outside hospital and they filed a case against our hospital for referring the case.

Preventing medico-legal issues in clinical practice: 

The medical profession is considered to be one of the noblest professions in the world. The practice of medicine is capable of rendering noble service to humanity provided due care, sincerity, efficiency, and professional skill is observed by the doctors. However, today, the patient–doctor relationship has almost diminished its fiduciary character and has become more formal and structured. Doctors are no longer regarded as infallible and beyond questioning. Corporatization of health care has made it like any other business, and the medical profession is increasingly being guided by the profit motive rather than that of service. On the other hand, a well-publicized malpractice case can ruin the doctor's career and practice. The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of cases many a time. It depends on the particular facts and circumstances of the case, and also the personal notions of the judge concerned who is hearing the case. The axiom “you learn from your mistakes” is too little honored in healthcare. The best way to handle medico-legal issues is by preventing them, and this article tries to enumerate the preventive measures in safeguarding the doctor against negligence suit.

Medical profession has its own ethical parameters and code of conduct. However, negligence by doctors has to be determined by judges who are not trained in medical science. They rely on experts’ opinion and decide on the basis of basic principles of reasonableness and prudence. There is often a thin dividing line between the three levels of negligence; lata culpa, gross neglect; levis culpa, ordinary neglect; and levissima culpa, slight neglect.The level of negligence depends on the entire context – which includes the place, the time, the individuals involved, and the level of complications. The difference between medical negligence and medical error is well-settled, and the principles are well-founded being clearly laid down in numerous cases by the Supreme Court.Thus, there is a need to appreciate this differentiation by the society so that doctors do not get indicted for impractical reasons.

The duties which a doctor owes to his patients are a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient.

Accountability of Medical Professionals:

The Supreme Court held that the medical practitioners are not immune from a claim for damages for negligence. The fact that they are governed by the Medical Council Act and are subject to the disciplinary control of the medical council is no solace to the person who has suffered due to their negligence, and the right of such person to seek redress is not affected.

Accountability of Hospitals : 

Hospitals liability with respect to medical negligence can be direct liability or vicarious liability. Direct liability refers to the deficiency of the hospital itself in providing safe and suitable environment for treatment as promised. Vicarious liability means the liability of an employer for the negligent act of its employees. An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment.

Common Errors by Medical Professionals:

Patients sue because of a feeling that they were not heard, that their needs were not attended to, and that nobody seemed to care, and as a result, a bad outcome resulted due to a mistake or negligence. Some of the instances where errors do happen by medical professionals are as follows:

Avoidance:

If a hospitalized patient has a bad outcome, some physicians may avoid making rounds in the presence of relatives. It is important to let the patient and their caregivers to know that as a treating doctor their problems are understood. It is a good practice to maintain eye contact while addressing the patient and put a comforting hand on the individual's arm (comforting touch).

Defensive medicine:

It is better to avoid practicing defensive medicine. Particularly when affordability is an issue, victim is very likely to complain. Moreover, it amounts to medical malpractice (a medical practitioner intentionally advising unwanted investigation).

Failure to communicate;.

Communicate clearly and effectively. Take time to ensure your patient understands their diagnosis, treatment, and medication plans, and then check their understanding by asking them to explain it back. This ensures instructions are properly followed and demonstrates your care toward patient.

Failure to diagnose: 

Failure to diagnose is the number one reason a physician gets sued for medical malpractice. A techno-savvy patient may give/explain/ask more information or psychologically less sophisticated patient may withhold the information and make diagnosis difficult.

Failure to identify a complication:

If a certain complication is a known risk, it should be on the consent form for the medical procedure. However, the consent form need not list every single complication that has ever occurred for that procedure. Often there are mistakes in communicating the complications.

Inadequate follow-up

It is essential that physicians and their staffs are able to track the status of these orders to make sure that none are overlooked or forgotten. Another aspect of care needing better follow-up involves referrals to specialists. Every step has to be documented not only for preventing medico-legal issues but also for good patient care as well.

Patient time:

The time spent allowing the patient to fully explain his/her concern determines the physician's ability to show concern, empathy, and likeability. The longer the quality time a physician spends with the patient, the less likely will that physician be sued.

Prescribing errors 

Before prescribing any medication, a physician should be aware of all medications the patient is taking, including over-the-counter drugs and alternative medicines. An important way to prevent inadvertent drug interactions is by working in concert with hospital pharmacists. Avoid handwriting prescriptions and utilize instead electronic medical recording with electronic prescribing.

Prevention of medical negligence:

In recent times, medical science has witnessed exponential technological progress. However, health-care delivery remains very much a human endeavor. Evidence shows that errors are often the result of not from a lack of knowledge but from the mindless application of unexamined habits and the interference of unexamined emotions.

Asset protection and indemnity: 

It is vital to the survival of physicians to develop an asset protection plan, in addition to professional medical liability insurance. Not only does a malpractice lawsuit reduce the physician's ability to make a living in medicine but also it can adversely impact or devastate both earned and invested assets. There are two categories of professional indemnity such as personal or individual: This takes care of the risk of liability of the doctor and his qualified assistant. Errors and omissions policy: This covers an institution, nursing home, or hospital along with its staff members. If a doctor is the owner of a hospital/institution, it is recommended to take both individual and error policy as the hospital/institution is a separate legal entity and often can be made a party to medico-legal case

Burden of proof:

The court has held the opinion that medical negligence has to be established and cannot be presumed.In cases of medical negligence, the patient must establish her/his claim against the doctor. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. A doctor can be held liable for negligence only if one can prove that she/he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care.

Change in attitude:

Change is the unchangeable truth in human life. A readiness to change can prevent medical errors and improve the quality care of a doctor. Self-awareness and attitudinal changes have been found to be beneficial and recommended. They are as follows:

Always to do the best 

A treating doctor should not let fatigue or anything else gets in the way of doing your work. While no one is perfect, many medical mistakes that end up in malpractice suits can be avoided by being conscientious.

Apology 

When physicians are honest about medical errors and apologize to the patient, the overall cost of medical malpractice is reduced in the end. However, it depends on the type of error (gross and real), motive of the victim (nonmischievous), and situational influences (indefensible).

Blaming others 

One should refrain from blaming other health-care providers for adverse outcomes. The latter can happen despite everyone providing reasonable care. They can be called for evidence either as a witness or as an expert.

Clinical guidelines 

Adherence to clinical guidelines is an effective way to improve quality care and reduce variation in care. 

Documentation

 If the treating doctor does not document something happened, it is difficult to prove it occurred. Charting accurately and thoroughly can help to understand what happened to the patient. In addition, it will help in answering the questions raised about duty of care when called for a deposition months or years after an event has occurred. One cannot rely on their memory for the facts. Regardless of the system used, the purpose of documentation, from a legal perspective, is always to accurately and completely record the care given to patients, as well as their response to that care. Documentation has legal credibility when it is contemporaneous, accurate, truthful, and appropriate.

Empathy:

 Patients want to believe they are the most important person that doctor will see that day and the doctor focuses 100% on them. While this is not feasible, taking time to think like a patient and understand the condition from their perspective can help in becoming more empathetic physician and build a better relationship. People are less likely to sue a physician with whom they have a positive relationship, even if something goes wrong.

Expectations

 Medical malpractice lawsuits are not quick. It could take years after an incident for a malpractice case to be resolved. Malpractice cases have to go through a long process including discovery, which is the investigation process. It could take months for this phase alone. While in the midst of a malpractice case, one needs to stay focused on other areas of your life. The support system needs to be mobilized and obsessing over the case should be avoided. The medical malpractice stress syndrome is real. It is experienced to some degree by all physicians who are sued.

Hospital policies 

If the physician follows hospital policy regarding treatments and protocols, they are less likely to get into trouble. If the physician diverts from regulations and hospital rules in managing the patient, the facility is less likely to defend.

Keeping updated 

While most physicians stay up to date with the latest continued medical education programs/conferences/workshops/symposia, increasing advances in healthcare make it important to know what is happening in the world of medical news. Often medical news is reported in consumer publications and the Internet. Often patient may discuss what is in the social media, the ability to discuss about those news with your patients will reinforce their confidence even though they may not be practiced by the treating doctor.

Merit of the case 

Not everyone who sues has a case. There are many instances where a doctor is served with a lawsuit and the case either never goes to trial or the doctor wins and is not found negligent.

Potential litigant 

A reasonable doctor should consider every patient as a potential litigant. It is to keep a doctor in constant awareness to stick to a prescribed standard of care and avoid any adventurous attempt. A doctor should not ignore any allegation in any form (oral or written) and should be able to handle allegations with clear and firmness in an intelligent and sympathetic manner.

Informed consent

 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 alternatives 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.[24] 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.

Conclusion

The practice of medicine is capable of rendering great service to the society provided due care, sincerity, efficiency, and skill are observed by doctors. The cordial relationship between doctor and patient has undergone drastic changes due to the corporatization of medical profession, resulting in commercialization of the noble profession, much against the letter and the spirit of the Hippocratic Oath. Although rapid advancements in medical science and technology have proved to be efficacious tools for the doctors in the better diagnosis and treatment of the patients, they have equally become tools for the commercial exploitation of the patients. Medical law is undergoing a massive change. The development of law pertaining to professional misconduct and negligence is far from satisfactory. The legislations are not adequate and do not cover the entire field of medical negligence. Lawsuits for medical negligence can be minimized or avoided by taking steps to keep patients satisfied, adhering to policies and procedures, developing patient-centered care, and knowing ways of defending against malpractice judgments. Having comprehensive professional liability, insurance is a necessity in the present-day litigious society.