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Guidelines to protect doctors from frivolous and unjust prosecution
  • By: admin
  • Date: 26 Jul 2019
  • Medical Negligence
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  • Views:82
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The number of cases filed for medical negligence is increasing day by day. However, a lot of these cases are coming to light as frivolous and baseless. 
 
Frivolous cases have severe repercussions on doctors, affecting their business image as well as career.
 
Patients should realize that not every doctor, who they disagree with, is a criminal. The Medi-care system is so open to fraud because there is so little oversight of the actual facts and cases.
 
The Judges have understood this pattern and are continuously pushing back on such unjust prosecution. 
 
The Supreme court has held that:-
  1. A medical negligence complaint should not be entertained without prima facie evidence submitted to the court.
  2. Along with an expert opinion to support a claim of negligence.
  3. A doctor may not be arrested unless his arrest is necessary to further the investigation or if the investigating officer is of the opinion that the doctor would not make himself available unless he is operated.
 
Doctors should fight these frivolous claims. To aid this, the Indian Medical Council has approved a list of guidelines to protect doctors from unjust and frivolous claims. The Central Government has to approve and pass the notification. 
 
The guidelines are to be observed by the prosecuting agencies and they are implemented to protect doctors from frivolous and unjust prosecution:
 
  1. Before making the arrest, the prosecuting agency shall refer the complaint to the Chief Medical Officer. He shall place it before the District Medical Board for its recommendations based on the merits of the case.
  2. The District Medical Board shall examine the allegations of the medical negligence (within two weeks) and send the findings back to the prosecuting agency 
  3. The Board conducting the examination shall ensure that a doctor qualified in that branch of science, on which the allegation is based, was a part of that Board.
  4. In case the prosecuting agency is not satisfied by the findings of the District Medical Board, after stating the reasons for the same, the agency shall refer the matter to the Divisional Medical Board within three weeks of the recommendations issued by the District Medical Board.
  5. The Divisional Medical Board shall give reasons for either accepting or rejecting the recommendations of the District Medical Board. The decision of the Board shall be conveyed to the prosecuting agency withing four weeks.
  6. In case the prosecuting agency is dissatisfied with the recommendations of the Divisional Medical Board, after stating the reason for the same, the agency shall refer the matter to the State Medical  Board within four weeks of the recommendations issued by the Divisional Medical Board.
  7. The State Medical Board shall give reasons for either accepting or rejecting the recommendations of the Divisional Medical Board. The decision of the Board shall be conveyed to the prosecuting agency withing five weeks.
  8. The prosecuting agency, on the basis of the recommendations of the District/Divisional/State Medical Board, should further proceed in accordance with the law. 
  9. In case of an arrest of a medical practitioner employed by the state or central government, the controlling officer of the medical practitioner shall be informed by the prosecuting agency.
  10. In case of an arrest of a medical practitioner, engaged in private practice, the concerned State Medical Council is to be informed by the prosecuting agency.
 
It is a dire need of the hour to implement these guidelines promptly.

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Guidelines to protect doctors from frivolous and unjust prosecution

By: admin Medical Negligence 26 Jul 2019

The number of cases filed for medical negligence is increasing day by day. However, a lot of these cases are coming to light as frivolous and baseless. 
 
Frivolous cases have severe repercussions on doctors, affecting their business image as well as career.
 
Patients should realize that not every doctor, who they disagree with, is a criminal. The Medi-care system is so open to fraud because there is so little oversight of the actual facts and cases.
 
The Judges have understood this pattern and are continuously pushing back on such unjust prosecution. 
 
The Supreme court has held that:-
  1. A medical negligence complaint should not be entertained without prima facie evidence submitted to the court.
  2. Along with an expert opinion to support a claim of negligence.
  3. A doctor may not be arrested unless his arrest is necessary to further the investigation or if the investigating officer is of the opinion that the doctor would not make himself available unless he is operated.
 
Doctors should fight these frivolous claims. To aid this, the Indian Medical Council has approved a list of guidelines to protect doctors from unjust and frivolous claims. The Central Government has to approve and pass the notification. 
 
The guidelines are to be observed by the prosecuting agencies and they are implemented to protect doctors from frivolous and unjust prosecution:
 
  1. Before making the arrest, the prosecuting agency shall refer the complaint to the Chief Medical Officer. He shall place it before the District Medical Board for its recommendations based on the merits of the case.
  2. The District Medical Board shall examine the allegations of the medical negligence (within two weeks) and send the findings back to the prosecuting agency 
  3. The Board conducting the examination shall ensure that a doctor qualified in that branch of science, on which the allegation is based, was a part of that Board.
  4. In case the prosecuting agency is not satisfied by the findings of the District Medical Board, after stating the reasons for the same, the agency shall refer the matter to the Divisional Medical Board within three weeks of the recommendations issued by the District Medical Board.
  5. The Divisional Medical Board shall give reasons for either accepting or rejecting the recommendations of the District Medical Board. The decision of the Board shall be conveyed to the prosecuting agency withing four weeks.
  6. In case the prosecuting agency is dissatisfied with the recommendations of the Divisional Medical Board, after stating the reason for the same, the agency shall refer the matter to the State Medical  Board within four weeks of the recommendations issued by the Divisional Medical Board.
  7. The State Medical Board shall give reasons for either accepting or rejecting the recommendations of the Divisional Medical Board. The decision of the Board shall be conveyed to the prosecuting agency withing five weeks.
  8. The prosecuting agency, on the basis of the recommendations of the District/Divisional/State Medical Board, should further proceed in accordance with the law. 
  9. In case of an arrest of a medical practitioner employed by the state or central government, the controlling officer of the medical practitioner shall be informed by the prosecuting agency.
  10. In case of an arrest of a medical practitioner, engaged in private practice, the concerned State Medical Council is to be informed by the prosecuting agency.
 
It is a dire need of the hour to implement these guidelines promptly.
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Unjust Compensation - A Doctors Perspective

By: admin Medical Negligence 26 Jul 2019

Nowadays, the basic knowledge of how the judicial forums deal with medical negligence cases is necessary for doctors due to the increase in frivolous and unjust matters. The knowledge of how the compensation is calculated and adjudicated in the judicial courts of India will assist doctors to get indemnity insurance associated with it, without any worry about the high-cost litigation involved with medical negligence cases.

The Indian Judiciary put some light on the premium of the value of human life and their suffering.  They aim to maintain a careful balance between the autonomy of the doctor and the rights of the patient to be dealt with fairly. The balance is maintained to give proper treatment to patients and to identify the delinquency in cases if any. 

The compensation shall be awarded after taking into consideration the following pointers which may affect the doctors and their profession:

  1. The paying capability or the earning capacity of a medical practitioner.
  2. Immeasurable delays in court may affect the reputation of the medical practitioner. 

The hospital as an organization is not run by the doctors but by the administrators. Hospital administrators are primarily concerned about the revenue that generates by imposing targets on the doctors. In such cases, if medical negligence arises, then who will be liable for the compensation. Many times, it is seen that both the hospital and doctors are held responsible for paying compensation. Whereas in some cases, the court reduced the amount of compensation payable by the individual doctors as compared to the hospitals.

The purview of the Indian legal system is that the treatment provided by a doctor can be inexact and vary with the rapid advancement and substantial responsibility as the service provider.  Therefore, the calculation of compensation is not precise or accurate. There is an immediate need to introduce broad guidelines and assessment parameters to support the health system. The compensation awarded requirements to be just, prudent and reasonable. The deficiencies, such as substantial cost of litigation, delayed litigation, as well as dependence on judicial restraint, will not provide effective justice to victims and also harm the doctors and hospitals.

In the case of a frivolous matter, the doctor should be compensated for the loss of his time, money and reputation. The Indian government needs to act and invest the guidelines in health care before it is too late.
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Misdiagnosis: A Medical Negligence?

By: admin Medical Negligence 26 Jul 2019

Diagnosis is an essential task performed by physicians. To treat a patient of an illness, the first step of treatment is his diagnosis.  
 
A diagnosis is the identification of a condition in the form of a disease or disorder. It is an examination conducted on the body of the patient to determine probable causes of his condition. 
 
Misdiagnosis is the primary reason for filing a medical negligence claim. The World Health Organization (WHO) recently prioritized patient safety areas and included diagnostic errors as a high-priority problem.
 
A misdiagnosis may relate to a wrong diagnosis, delayed diagnosis or failure of diagnosis. 
 
When a doctor's diagnosis leads to an error in treating the illness of the patient, which results in worsening the situation of the patient, shall amount to medical negligence. However, not all wrong/delayed diagnosis shall have a basis for a medical negligence claim.
 
A patient filing a case for medical negligence based on the misdiagnosis of the doctor has to establish the following:
 
  1. Doctor-patient relationship
  2. Failure of providing standard care in conducting a diagnosis on the patient. (Review to be based on expert opinion)
  3. Misdiagnosis causing an injury
  4. The patient must submit proof that the doctor did not correctly diagnose him and that a competent doctor a doctor of the similar speciality would have diagnosed correctly.
 
Generally, in case of a death, it is challenging to prove misdiagnosis in India since there is no proper mechanism to report it except under medical negligence. 
 
Also, to prove misdiagnosis, one would have to request for an autopsy, which is an expensive affair, and not everyone can afford it. Even if the family of the patient inclines towards requesting an autopsy, it is difficult for a layman who does not understand medical terms, to take a wise call. 
 
There are several reasons due to which misdiagnosis takes place. It is for the court to decide on the merits of each case individually whether it would be regarded as a defence available to the doctor, or would the doctor be held liable for medical negligence for misdiagnosis.
 
Different reasons/causes of misdiagnosis:
 
  1. The diagnosis was based on erroneous lab results conducted by a non-interested third party
  2. A piece of flawed equipment is used for conducting diagnosis
  3. A technician who wrongly administers the test 
  4. A secondary who misreads the scan
  5. Results of tests swapped between patients
  6. The limited-time associated with each patient 
 
For the above instances, if the concerned or diagnosing doctor is not liable, some other party will be liable. For example- the doctor is not responsible in case of 'results of tests being swapped' since it is the hospital staff who is involved in giving the doctors the test results.
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Exemption of doctors operating in Emergency Rooms

By: admin Medical Negligence 26 Jul 2019

Emergency rooms are very chaotic by nature. Generally, the Doctors present in the emergency rooms diagnose the patients who are needful to seek medical care due to accidents, sudden violent act, illness or any other medical condition. Medical records may not be thoroughly reviewed due to the lack of time that a doctor of the emergency room has to assess the situation before giving treatment. Thus, in the cases of medical negligence doctors present in the emergency room may be given more breathing space than other doctors treating the patient. Treatment in an emergency room means trusting the strangers to save the life of the patient. Emergency room injuries are the sudden physical, emotional, and financial hardships for the patients and their families.

A doctor who examines the patient is the first attending physician performing medical work upon arrival of the patient at the emergency room. In an emergency room, the situation is so terrible that the tests consume a longer period of time; tests such as a CT scan or an MRI cannot be done on the basis of emergency. But emergency in the environment does not eliminate the duty of doctor’s to perform specific tests to isolate the problem. 

Errors faced at Emergency Room:

  1. Failure to get the medical history of the treating patient
  2. Due to the lack of time, it is difficult to perform an accurate physical examination
  3. To recognize the life-threatening causes of patient health
  4. To come on a conclusion about the health of a patient in a hasty manner, without considering alternative treatment or analysing the present medical condition of the patient
  5. Misdiagnosis, delay in diagnosing or treating the patient
  6. Delay in performing test which is necessary in case of emergency
  7. Laboratory errors or the dumping of patient or transfusion of the contaminated blood
  8. Failure to monitor a patient properly 
  9. Inappropriate medications or improper doses 

Injuries Caused by malpractice at Emergency Room:

It would be impossible to list the injuries resulting from malpractice in the emergency room. However, some are more commonly included:
  1. Severe cardiac attack or death from an undiagnosed heart attack
  2. Death from undiagnosed stroke or paralysis
  3. Severe damage to organs or limbs due to misdiagnosis by a doctor
  4. Infection or ill-treatment

To avoid errors, some measures can be taken into consideration:

  1. To engage the adequate number of doctors and the supporting staff in the emergency rooms.
  2. To provide with the adequate facilities 
  3. To maintain the sanitary condition 
  4. To maintain the records of the patient and to look for the tracking procedure of the patient. 
  5. Proper medication administration procedure
  6. Ethical treatment to the patient

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General Types of Medico-Legal Cases (MLC)

By: admin Medical Negligence 26 Jul 2019

Most doctors come across medico-legal cases (MLC) in their medical career. An MLC is a case of injury wherein an investigation by the law enforcing agency is necessary to get to the bottom of the cause of the injury. In other words, it is a medical case with legal implications for the doctor, where he, after the examination of the patient, thinks that some investigation by law enforcement agencies is essential. It also includes a legal case requiring medical expertise when brought by the police for examination since a doctor's knowledge may be necessary for the administration of law.
 
Instances of MLC are:
 
  1. Cases of injuries and burns that suggest the commission of an offence.
  2. Unnatural accident cases of grievous hurt or death
  3. Sexual assault
  4. Criminal abortion
  5. Unnatural unconsciousness
  6. Poisoning or intoxication
  7. Cases referred by the courts
 
The Government has issued a list of guidelines and the manner in which care has to be given to the MLC survivors:
 
  1. Initial resuscitation or first aid
  2. Required consent for examination
  3. Detailed history
  4. Medical examination
  5. Age estimation, if requested
  6. Providing the collected evidence to police
  7. Documentation
  8. Treatment of injuries
  9. Psychological counselling
 
  • The doctor should carefully examine and treat the patient, record the date, time, place, brought by whom and examination finding. The doctor should also record the dying declaration of the patient if he is on the verge of death.
  • As per section 39 of the Criminal Procedure Code, the doctor must report the MLC to police after the completion of primary lifesaving medical care. The aim is to initiate the legal proceeding at the earliest to gather maximum evidence by the police. Quick and effective action by the police also helps to avoid the destruction of evidence.
  • The law states that issues such as legal formalities, monetary constraints or infrastructural restraints of the institution should not prohibit the hospital from providing basic and emergency medical treatment.
  • Generally, all the big hospitals and teaching institutions have a detailed manual on how to deal with MLC's. However, even if these manuals are not available, MLC's pose no problem if the doctor uses proper care and caution in dealing with them.
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Duty of patient to avoid aiding Medical Negligence

By: Medical Negligence 24 Jul 2019

Although medical practitioner causes the negligence, there is a certain sense of care to be observed by the patients to avoid any actions that may aid medical negligence. These are the duties of the patients towards medical professionals: 

Information: The most important responsibility of the patient is to provide information about the medical history of themselves to the best of knowledge to the consulting medical practitioner. The patient and his family are responsible for providing accurate information relating to his current illness, past episodes, any medications, surgeries, allergies, or previous adverse reaction. No information regarding the patient's medical background is trivial, and the consulting medical professional should be made aware of that.

To Clear Misunderstandings: The patient and his family members should consult the doctor in case of any misunderstanding relating to the treatment given to the patient. It is common knowledge that the medical terms used by the doctors are difficult for a layman to understand. The doctor is generally not aware of how much the patient understands; hence, the patient should ask the doctor for clarity.

Instructions: Any instruction given by the doctors should be followed thoroughly. The patient is responsible for following the action plan both the times, pre and post of the treatment. The patient shall be responsible for any consequences and will have to accept the results and the outcomes if these instructions are not followed diligently.

Other Treatments: The patient must inform the medical consultant of any other ongoing treatment with other doctors. Sometimes double treatments can be the cause of worsening the condition of the patient.

Rules & Regulations of the hospital: The patient and his family owe a duty of care towards the other patients and medical staff. He must follow the rules and regulations of the hospital and not disrupt the services to hamper his treatment or that of the other patients.

Financial Commitments: Although the medical fraternity is responsible for taking up any case brought to them, the patient has to fulfil any financial commitments given to the hospital. When a patient is brought to a hospital (except under emergency cases), it is implied that the service given by the hospital shall be payable by the consumer, i.e. the patient.

Report any fraudulent activity: This point is regarding medical payment fraud through medicare laws. For instance: Being charged for services that are not rendered. The patient must bring to light and report any known fraudulent medical bill payment activities. 

Generally speaking, the above actions in a standalone manner will not amount to medical negligence, however, in a court of law, they may be considered as actions by patients that aid medical negligence and hence lower the claim of negligence to be demanded from the doctor.

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