Medical Negligence: Coping with the issue

Dr Th Ibocha Singh *

A Key Hole Surgery in progress at Sagaing :: Pix provided by Shija Hospitals

INTRODUCTION

The term 'negligence' is a legal rather than a medical concept and it is defined as failing to do something (act of omission) that one is supposed to do, or doing something (act of commission) that one is not supposed to do. It has a special meaning for medical profession in the sense that medical negligence, also known as professional negligence, malpractice or malpraxis, is defined as a lack or absence of reasonable care and skill, or wilful negligence on the part of a medical practitioner in the treatment of a patient with whom he has a contractual obligation, so as to lead to bodily injury or death of the patient.

The law presumes doctor-patient relationship to be an implied contract in which the doctor agrees to impart medical care by exercising a reasonable degree of skill, knowledge and prudence to the best of his judgement and the patient is obliged to pay for his services. Violation of this contractual obligation is a matter of concern as it can make the doctor liable for negligence if the health or life of the patient is endangered.

PROOF OF NEGLIGENCE

In order to prove negligence, four conditions must be fulfilled: a duty owed; dereliction of that duty; direct causation, and damage that results, which must be reasonably foreseeable or anticipated. These four criteria are mnemonically summarised as the 4 Ds of malpractice - DERELICTION of a DUTY DIRECTLY causing DAMAGE.

Damage means the injury suffered by the patient. It may be physical, mental or financial (loss of income, extra expenses etc.) and is assessed when a doctor's negligence causes the patient's death, diminishes his chances of recovery, prolongs his illness or increases his suffering. The amount of damage done is a measure of the extent of liability for negligence. The doctor may be negligent, but he is not liable for an error of judgement or of diagnosis and the patient cannot sue him for negligence if no damage occurs to him. As such, failure to provide probative evidence on any one of the above conditions will result in dismissal of the case.

ACTS OF OMISSION/COMMISSION AND LIABILITY

It is imperative to keep in mind that no medical practitioner is immune to mistakes in diagnosis or treatment and that liability for negligence will depend on acts of omission/commission which vary among different disciplines of medicine as noted in a nutshell below.

1. The Physician: Acts of omission - (A) failure to - attend the patient in time or when required; use appropriate laboratory tests when available; leave proper and clear instructions for treatment of the patient; apprise the patient of a possible dangerous side-effect of a drug prescribed; stop prescribing a drug with adverse reactions; advise hospitalisation when indicated by the patient's condition, and obtain informed consent for procedures with inherent risks to life, and (B) abandoning treatment without arranging for alternatives.

Acts of commission - examination without consent of the patient; perfunctory and superficial examination and arriving at a diagnosis without reasonable basis; haphazard treatment without consideration of safety; undertaking procedures beyond one's skill and experience; departure from accepted practice; unnecessary treatment, especially with harmful drugs; aggravating an existing condition or adding new doctor-induced problems (i.e. iatrogenic); discharging the patient prematurely, and anaphylactic shock, resulting in death.

2. The Surgeon (General and Orthopaedics): Acts of omission - (A) failure to: diagnose surgical condition requiring operation; advise X-ray in suspected fracture; operate when indicated; follow-up after operation; inform the patient if complications due to inadvertence during surgery occurred; use traction when indicated; immobilise sufficiently when condition demanded it, and

(B) unexplained delay in operation. Acts of commission - consent not taken prior to operation; operation more extensive than that consented to; operation on wrong patient or on wrong limb - amputation of wrong finger, removal of wrong organ or errors in ligation of ducts; bad results of operation — leaving swabs, sponges, instruments or any other foreign objects like bullets in the abdomen or body cavities; use of unsteriled instruments and dressing with corrosives instead of bland liquids; plaster cast too tight, removal too soon or kept for long - gangrene following too tight plastering or leaving tourniquets too long or paralysis after splints, and experimentation without prior consent or authorisation.

3. The Gynaecologist: Acts of omission - prior consent not taken before abortion, sterilisation or artificial insemination with donor's sperm; performing a criminal abortion; non-use of aseptic techniques and failure to inform the patient about mishaps through inadvertence. Acts of commission - an operation resulting in sterility; puncturing or perforation of uterus during curettage; injury of ureter; stricture of cervix by too extensive cauterisation; fistula formation with bladder and rectum, and failed tubectomy, patient becoming pregnant.

4. The Obstetrician: Acts of omission - failure to: provide prenatal care and attend at the time of delivery; protect perineum and rectum during delivery; remove placenta completely; repair birth canal injury; treat eclampsia in time, and use sterile techniques when required. Acts of commission - Caesarean operation when not indicated; instrumental injury to mother and child; haemorrhage from umbilical cord; diagnosis of pregnancy as uterine tumour or diagnosis of uterine tumour as pregnancy, and wrong baby given to patient.

5. The Anaesthetist: Acts of omission - failure to: evaluate the patient for operation under anaesthesia; appreciate the magnitude of the risk involved before obtaining informed consent, and supervise recovery from anaesthesia. Acts of commission -injecting basal anaesthetics in fatal dosage or in wrong tissues; death due to excess anaesthesia; injury to the patient from mask/mouth gag during anaesthesia, and spinal anaesthesia leading to hypotension or epidural abscess.

6. The Radiologist: Acts of omission - mainly failure to take adequate precautions before giving iodine contrast media. Acts of commission - anaphylactic reaction to contrast media endangering life; misinterpretation of films; wrong report regarding sex of foetus in sonography; renal shutdown due to contrast media threatening life; injury to vision, and complications following arteriography/angiography and interventional radiology.

7. The Ultrasonographer: Acts of omission - mainly failure to use optimum techniques, leading to misdiagnosis. Acts of commission - wrong reporting of sex of the foetus and wrong diagnosis (false positive and false negative).

8. The Eye/ENT Surgeon: Acts of omission/commission - failure to remove eye or foreign bodies in the eyes/throat in time and when indicated; excessive bleeding following operation; wrong glasses/spectacles or solutions, causing visual defect; loss of vision due to cataract operation, or loss of hearing following middle ear operation.

9. The Pathologist and Clinical Laboratory: Acts of omission - mainly failure to use optimum techniques for diagnostic tests and to monitor quality control of tests. Acts of commission — wrong diagnosis of laboratory tests; wrong biopsy report; wrong blood grouping and incompatible blood transfusion, and mixing/contamination of sample/material, leading to erroneous results.

Based on the nature of act, negligence is classified into civil and criminal. In civil negligence, the patient brings suit in a civil court for realisation of compensation from his doctor for the injury suffered in consequence of negligence or unskilled treatment, under Sections 73 and 74 and also Section 75 of the Indian Contract Act, and the onus of proving negligence lies on the plaintiff.

The suit will remain valid if it is filed within two years from the date of alleged negligence. In criminal negligence which is more grave than civil negligence, a medical practitioner, whether qualified or unqualified, may be charged in a criminal court for the death of his patient by doing a rash or negligent act not amounting to culpable homicide under Section 304-A, I.P.C. In exceptional cases, the issue of medical negligence can also be taken up as a subject of inquiry by the Medical Council.

PREVENTIVE MEASURES AGAINST MALPRACTICE SUITS

(1) Maintain a good contractual obligation and rapport with your patient.
(2) Don't criticise your colleague or another doctor.
(3) Employ qualified staff and associate with good partners.
(4) Keep accurate, up-to-date and legible records of the case and update your professional knowledge by getting in touch with recent advances in medical sciences.
(5) Always confirm your diagnosis with generally approved methods including laboratory tests and insist on X-rays in all cases of head, bone or joint injuries, if there is doubt about diagnosis, including fracture.
(6) Obtain informed consent of the patient/guardian (in case of minor) before commencing an examination, diagnostic or investigative procedure and treatment. Watch for complications, if any, and handle tactfully.
(7) Exercise reasonable care and skill within your knowledge and consult or suggest the consultation of another colleague (i.e. second opinion) in a case where there is doubt about diagnosis or treatment.
8) Don't go outside your speciality or undertake any procedure or treat beyond your competence and skill, except in emergency, where delay is dangerous. In such life-threatening situations, a doctor is protected against any harm caused to a person in good faith under Section 92,1.P.C.
(9) Always inform the concerned authorities in any medico-legal cases and maintain good records on accidents/suicides/homicides and make it convenient to take part in medico-legal seminars, and
(10) Don't forget therapeutic misadventure, which is defined as an accident/mishap, leading to an injury/death of a patient as a result of some unintentional/inadvertent/unexpected act by a medical man or his agent or hospital. To avert such occurrence, a doctor requires to exercise discretion in taking a patient's history, including hypersensitivity to serum and past history of any drug reactions and apprise the patient of all the risks involved.

CONCLUSION

Medical negligence is a vexed issue that crops up off and on among medical fraternity, and in majority of cases lack of adequate communication or strained relation between a doctor and a patient has been cited as the single most important cause of increasing frequency of complaints and litigation against this profession. Keeping this in mind, it is of utmost importance to establish a good and cordial doctor-patient relationship since such establishment is considered to be the best insurance against legal action.

As a rule, the law is very considerate to the medical profession and a medical man who has exercised reasonable care and diligence and professional skill in the course of treatment of his patient is less likely to face the music, and accordingly, the law court is unlikely to take action unless it is fully satisfied with the relevant case.

It is an implied tribute to the medical profession that in an environment of total moral degradation and corruption in all walks of life, our society still expects doctors to uphold the dignity and honour of their profession by elevating their ethical standards. Let us, therefore, strive heart and soul to respect the society by accepting the spirit and intention of the Hippocratic oath as our ideal standard of professional behaviour.