medico-legal aspect in health care , what to do in law suit in health care, consent anaesthesia, anaesthesiologist medico-legal aspect

1. Dr Pramod Sarwa
Dr M. Munjal
Jeevan rekha critical care and trauma hospital
Jaipur

2. INTRODUCTION
 1987 confidential enquiry into perioperative deaths.
 Anaesthesia as sole cause of death 0.1%.
 Contributory factor 14% of cases.
 Practice of anaesthesia has many interfaces with law.
 State has the responsibility to protect the citizens.
 State has a role to regulate the behavior of physicians and
hospitals
 New technologies may change the practice of anaesthesia
practice.
 Anaesthesia practice is neither insulated nor immunized
against medical jurisprudence.
 “Nothing is static everything is changing”.

3. LAW GOVERNING THE MEDICAL ISSUE

4. UNDERSTADING OF MEDICOLEGAL ASPECTS
 BOLAM TEST:”A doctor is not negligent if he is acting in
accordance with a practice accepted as PROPER by
responsible body of medical men skilled in that art even
though other doctors adapt a different practice”.
 The test is applied in diagnosis, to advice and to treat the
patient.

5. UNDERSTADING OF MEDICOLEGAL
ASPECTS (contd)
 Fatalities associated with anaesthesia, surgery and diagnosis
can be categorized as:
1)Those directly caused by disease or injury for which
anaesthesia was necessary.
2)Death caused by a disease or co morbid conditions other than
the disease for which anaesthesia was given.
3)Surgical or diagnostic procedural mishap.
4)Anaesthesia mishaps
a) over dosage
b) technical failure
c) equipment failure
d) negligence

6. UNDERSTADING OF MEDICOLEGAL ASPECTS
(contd)
“ERROR IS HUMAN”
Human error:
a) Emergency setup
b) Lack of sleep
c) Lack of experience with technique and equipment
d)lack of skilled assistant
e) restricted access to the patient and
f) Inadequate vigilance.
COOPER, NEWBOVER AND KITZ described three categories:
1)Technical: deficiency of technical skills and poor design of
equipment
2)Judgemental: bad decision due to poor training and anxiety
3) Monitoring and vigilance failure- failure to recognize the
problem and delayed response

7. UNDERSTADING OF MEDICOLEGAL ASPECTS
(contd)
What is a contract?
In medical practice the duty of care is based upon
the contract, real or implied between the doctor and
the patient.
Working to and working for:
The anaesthetists are called by the surgeons or
nursing homes, the whole responsibility of the patient
lies on them.
When patient approaches the anaesthetist the
responsibility lies on the anaesthetist.

9. UNDERSTADING OF MEDICOLEGAL ASPECTS
(contd)
It is the duty of the anaesthetist to attend the patient,
assess him and optimise the patient with necessary
investigations and treatment.
No guarantee should be given regarding awareness or
morbidity.
Duty to provide: It is the duty of the government or
hospital management to provide adequate and trained
hands. They must provide all necessary latest
functioning equipment. Trainee should be regularly
supervised by the seniors.

10. UNDERSTADING OF MEDICOLEGAL ASPECTS
(contd)
Anesthetist must attend the patient a day before
surgery, do PAC and everything must be
documented.
Duty to explain: Anaesthetist must explain clearly
the procedure contemplated, type of anaesthesia
other modalities of treatment and complications
of procedure.
Nothing should be decided against the patient will.

11. UNDERSTADING OF MEDICOLEGAL ASPECTS
(contd)
What is consent?
It is defined as “voluntary agreement, compliance or
permission for a specified act or purpose”.
Indian contracts act section 13 states that “two or more
persons said to consent when they agree upon the same
thing in the same sense”
Consent must be intelligent and informed.
Without consent it amounts to assault and battery.

12. CONSENT (contd)
Expressed consent may be written or verbal.
Implied consent is for routine small procedures .
Written and Informed consent
1) All relevant information about ailment and treatment options outlined.
2) Significant risks with the procedures explained.
3) Must be told about all other options of treatment.
4) Explained in local vernacular so that he can understand and consent
Theraputic privilege:
Doctor can with hold some information in the best interest of the patient.
Extension doctrine:
Sometimes doctor has to exceed the procedure than the consented because of
practical problems and it is allowed by court.
The consent given must be- voluntary and free. Consent obtained by fear, force
and fraud is invalid.

13. CONSENT (contd)
Consent may not be taken in
1) Patient is in coma and needs emergency surgery.
2) Child patient for operation- parents not available.
3) When the case is referred by a court for medicolegal
purposes
Consent is taken from:
1) Conscious, mentally sound adult.
2) Child above 12years.
3) The parent or guardian of child below 12 years.
4) Permission of loco parentis: e.g.:-headmaster of a
residential school.
5) Jehovah’s witness

14. UNDERSTADING OF MEDICOLEGAL ASPECTS
DUTY TO TELL WHEN THINGS GO WRONG: DOT
Inform the patient’s attendants about thecomplication.
Slowly build up the scene.
Once they are mentally prepared, then we can announce the bad result.
Failure to fulfill the duty of care:
If patient suffers damage during the procedure they may claim
negligence on the part of the anaesthetist.
Legal action may be initiated against the doctors concerned.
Plaintiff(patient) must prove negligence on the part of the doctor.
Res ipsa loquitur “The thing speaks for itself ”. Here the defendant
physician must prove that the accident did not occur due to his
negligence.

15. MAL PRACTICE ISSUES
Consumer protection act 1986:
It has presidential consent on 24th DEC 1986.
Undergone two amendments 1) June 18th 1993 and
August 27th 1993.
The purpose of act is to protect the consumer and
safeguard his rights.
The services rendered by doctors has been brought
under CPA in 1995.
It has three tier system
case must be filed within 2 years of accident.

16. MAL PRACTICE ISSUES
Patient’s don’t come to hospital to file a suit.
If they are not happy or if there is any damage they
may file a suit.
Professional plaintiff is rare.
Who are litigious?
1) Currently involved in a law suit.
2) Has been a plaintiff in previous case.
3) Had an adverse outcome from previous case.
4) A hostile patient to physician or hospital.
5) Patient who takes copious notes or records in
interview.
6) ‘Doctor shopping’ attitude.
7) Degree of damage important.

17. Notification of Law suit
After receiving a summon:-
-Notify the insurer, he will appoint the lawyer, take
help of the lawyer to respond in specified time.
-Don’t discuss about the patient with anyone.
-We can see the medical records- Don’t alter it.
-We can have a private counsel if there is a problem
with the insurer to protect our assets.

18. DEPOSITION OF TESTIMONY
It is taken by the plaintiff ’s attorney from the
defendant doctor.
It should be in a convenient place, after good rest.
Speak slowly, don’t loose temper, be composed and
neatly dressed
Speak yes or no to the questions.
EXPERT WITNESS:
Most of the jury are not well informed about
some topics in medicine. They need an expert
opinion in solving the case. He must be qualified
and well experienced in practice of Anaesthesia.

19. ELEMENTS OF NEGLIGENCE
DUTY OF CARE: every anaesthetist has a duty once he accepts the work.
breach of duty may be due to acts of omission or acts of commission.
Has got general duties and specific duties:
Doctor is punishable under SEC 304-A IPC.
1) Physician failed to disclose inherent or potential dangers involved.
2) Unrevealed risks materialized caused damage.
3) A reasonable patient would have deferred operation with risks involved

21. ELEMENTS OF NEGLIGENCE
Standard of care:
must adhere to standard practice
need not be aware of latest developments.
must follow the protocols of the institution.
Breach of duty:
If there is an action of omission or commission
Which is acceptable by minority of anaesthetists
when doctor acts as a good Samaritan and helps an injured person he is
immune to breach of duty.
Causation: The link between breach and injury is called proximate injury.
Two lists
1) But for: The injuries would not have occurred but for the Anaesthetic
procedure.
2) Substitute factor: The procedure need not be only factor in causing injury

22. MAL PRACTICE ISSUES
Damages
Injuries sustained by the patient viewed generally as financial terms:
1) General damages: like pain, suffering, limitation anxiety.
2) Special damages: like medical expenses, future expenses, loss of
wages and earning capacity and rehabilitation costs.
Punitive damages:
In gross misconduct court may order exemplary or punitive damages.
Insurance will not cover this. Closing a case:
1) Outside court settlement.
2) Court settlement if proved.
Asset protection:
Insurance company escapes or partially pays our assets are at stake.
Select a good company with good past record.

23. MEDICOLEGAL DILEMMAS
 Most of the bad outcomes are not due to negligence, but due to expected
risk of anaesthesia and surgery.
 Many patients have known and unknown physical problems.
 Many patients have unrealistic expectations regarding the outcome.
 If the bad outcome is due to negligence it must be informed to the family
and an attempt must be made to settle the problem as early as possible.

24. WHAT to????? What not to?????
HOW to reveal?? What about my future????
WHERE to go???? WHOM to talk????

25. MEDICOLEGAL DILEMMAS
The immediate response to bad outcome:
If the critical event is for a short period and normalcy restored within few
minutes surgery can be allowed to take place.
Never rush to attendants to tell what happened without knowing the
cause and don’t tell the possibilities.
Surgeon and anaesthetist must discuss about the cause and possible
outcome and then inform the family members.
if the critical event is serious and resuscitation took more than few minutes
and the response is slow the surgical team should consult the family
members.
If surgery is not emergency postpone the case.
If surgery is emergency it must be discussed in detail with the family
members and proceed.
Contact with family members.
1)Maintain good contact with family members.
2)Sudden bad news may generate anger in the family members. Allow the
anger to be vented out.
3) Don’t involve or accuse other physicians.

26. RISK MANAGEMENT STRATEGIES
1) Improve doctor-patient relationship
2) Adhere to standard care.
3) Maintaining good records.
4) Respond properly when there is an accident.
5) Recognize malpractice prodromes.
6) Avoid vicarious responsibility.

27. MEDICOLEGAL DILEMMAS
Record keeping:
Enter correct timings
The surgical team must consult each other and record the events.
If there is any difference of opinion if must be solved then and
there but not in the court after few years.
Nothing wrong in correcting an error
The correct time, date and reasons for correction must be
mentioned.
The chart should not be altered.
Hospital authorities must be notified about an error in the
chart.
There should not be any “CHART WAR”.

28. RISK MANAGEMENT
Care of the patient after a bad outcome:
1) Take care of the patient continuously
2) Never hand over the patient to others and leave the
scene.
3) Involve consultants, take their opinion regarding
management.
4) Do necessary investigations to clinch the diagnosis.
5) Shift the patient to a higher center if there is a
necessity and follow the patient.
6) Contact the family members at regular intervals and
tell the progress of the patient.
Try to gain the sympathy of the pt’s attendents.

29. RISK MANAGEMENT
The bad outcome is due to unknown cause or no
negligence.
1)Insurance company must be notified.
2) Expert opinion must be sought in the court to clarify
the causation.
3) The plaintiff must prove the negligence on the part of
the doctor.
(It is not so easy).

30. RISK MANAGEMENT
PREPERATION FOR DEPOSITION;-
The plaintiff’s attorney will take the deposition .
The place must be a convenient one.
The physician must be composed.
Should not loose temper.
Answer to the questions by yes or no.
No explanations.
The deposition must address four major issues.
1)The anaesthetist must know the events that led to the bad outcome.
2) He must have concept of what happened and it must be supported by
literature.
3) Never try to flatter the plaintiff’s lawyer.
4) Answer briefly and correctly.

31. RISK MANAGEMENT
Never loose the heart . Hope for the best.
Take the opinion of the seniors regarding the case and the legalproblems.
Go through the literature to have support with your views.
Have a separate lawyer if you are not happy with the lawyer appointed by
insurance company.
Support by the associations and colleagues:
1) It is the duty of the association to come forward and help his colleague
morally, physically and financially.
2) One should not speak bad about the incident and the doctor in the general
public.
3) Try to have a corpus fund to help the defendant doctor from medico legal
suit’s and maintenance of his family during crisis

32. RISK MANAGEMENT
Strategies to reduce bad outcomes:
CMES:
Have regular CMES,
Share the knowledge
Frame guide lines and protocols for various procedures.
Believe your monitors:
Don’t find fault with the monitors
Try to find something wrong with the patient.
USE multiple monitors for cross checking
Lab values and clinical condition must correlate
ISA & ASA guidelines:
The associations will be providing the members materials which contains
standards, guide lines and malpractice claims. Anaesthesiologist must
be thorough with this information and follow

33. RISK MANAGEMENT
Dealing with angry patient and family members:
Most of the patients are unhappy and angry over the
medical care.
We don’t have much time to spend with them because of
emergency situation.
Don’t ignore them. Try to hear their problems and assure
them the possible solutions.

34. CONCLUSIONS
Assess , optimize and assure the patient before taking up for surgery.
Take valid and informed consent
Keep the things which are necessary during and after the operation.
Check the equipment and monitors.
Label all the drugs
Supervise the juniors
Avoid critical incidents
If there is bad outcome contact the family members and explain
Take opinion of consultants
Do all the necessary investigations.
Don’t leave the patient unattended
Take to a higher center if necessary
Have a valid medical insurance coverage.
Try to avoid physical assaults by the angry patients attendants.