Medication Errors

Weak Medical Records is ammunition for a claim of Medical Negligence

Part 1 of 6 of Medication Errors

 “For the plaintiff’s lawyer, a case typically comes to his office because of a perceived bad outcome, but stays at his office because of deficiencies in the medical record. For the defense, a medical malpractice case most often begins and ends with the medical record. It is the singularly most important testament to the care which was and was not provided, and often represents the defendant physician’s only ‘memory’ of that care. A poorly documented record can turn good medicine into an indefensible case.”

Steven J. Hippler

On one hand the term “medication errors” is of wide amplitude and is extremely wide, especially with respect to issues of medical negligence and on the other some may not even know what the term actually constitutes or what is a medication error. Though the list of specific events that may be included in the definition of “Medication Errors” is long, it can be categorized in six broad categories.  

This blog discusses the impact, relevance of maintaining of medical records of patients in order to avoid instances of medical negligence arising from medication errors. Medication Errors may arise from failure by physician to update or review medical records of the patient before recommending any medication.

Good documentation protects physicians and other health professionals against claims of negligence. Aside from medical-legal considerations, the most vital reason for doctors to maintain precise, reliable medical records is that good documentation safeguards a patient. Medical records contain material required to inform physicians of past and present treatment choices, and to provide evidence that such care was suitable.

Medical records are the most significant evidence that doctors and hospitals offer in their defense against a medical negligence claim. Proper medical records maintained by the doctors are important are relevant in defended conflicting, undocumented versions of events told by opposing parties as the medical records / documentation directs towards the documentation that was done before and during the time medical care rendered by the doctor.

Where poor medical records make it problematic to decide whether an adverse outcome resulted from factors beyond the physician’s control or from negligent medical care, on the other hand, good documentation protects physicians and other health professionals against claims of medical negligence.

Typically, when a patient asks an attorney to file a malpractice claim against a physician, hospital or other health professional, most attorneys obtain copies of the pertinent medical records for review by an independent medical consultant. The reviewer is asked to determine, based on the documentation, if the treating physician(s) provided appropriate care — and whether the physician was negligent. The strength of the documentation often is the deciding factor in whether a plaintiff pursues a claim and in how effectively defendants and their insurers can mount a solid defense against the allegations.

DO’s and DON’Ts for Doctors and Hospitals

Serious diagnostic and treatment errors have resulted in injury and litigation because the medical reports were not available or if available, were not proper. Considering that our legal system is oriented to documents and documentary evidence holds priority over oral evidence, it is only fair to spend some time preparing records rather than spending time, money and energy in litigations. Medical records are central documents in the defense of any malpractice case and therefore require some attention and dedication. The medical records usually are the most definitive piece of evidence presented at any trial during Medical Negligence.

The DO’s

1. Use well-organized, neatly-maintained patient charts,
2. Note the details of every visit and check up in clear and conscious manner
3. Write all medical records / progress / documents legibly
4. As an alternative to 3 - dictated and transcribed medical records
5. As an alternative to 3 and 4, consider using electronic medical record (electronic evidence is admissible in court of law)
6. Maintain a record of all the allergies, current medications, names of other doctors on duty at the time of recording,
7. Document “informed consent discussions” carefully
8. Fill in the problems being faced by the patient, in the charts, most appropriately in order to enable different doctor on duty to treat the patient appropriately,  
9. Fill in or void spaces on forms and transcription and place your initials there in order to avoid accountability issues,
   
10. Sign all entries or at the least initial all entries in order to avoid credibility issues
11. Document significant phone conversations with dates, names, and content
12. Chart all medication prescriptions and renewals completely and with details and reasons
13. Document “referral notes” unambiguously
14. For example, instead of “to see GYN,”, prefer writing “Pt urged to see her GYN promptly for vaginal bleeding; patient understands urgency.”
15. Initial or sign lab, X-ray, consultants’ reports as evidence of your review
16. Initial or sign questionnaires filled in by patient (if any) as evidence of your review
17. Include sufficient details of exam findings in progress notes
18. Supplement narrative text with line drawings, diagrams and templates
19. Document patients’ noncompliance in the progress record
20. Chart evidence that patient education information was dispensed
21. Document returns visit advice in each progress note
22. Document failed and canceled appointments in the progress record
23. Resolve medical problems from previous visit in the chart i.e. how the said problem was been or is being treated
24. Write unambiguous “return-to-work” or “school” orders
25. When amending progress notes, include the date, time and, if the reasons for the amendment are not obvious, explain the change. 

The DONT’S

1. Avoid using sticky notes or unattached slips or papers on the charts or medical records,
2. Avoid unexplained cross-outs, write overs or squeezed-in entries
3. Avoid leaving any blank spaces in forms, charts, questionnaires and consent forms
4. Avoid unsubstantiated subjective remarks in the progress record
5. Avoid criticism of other professionals / doctors in chart notes
6. Avoid untimely dictation of medical records
7. Never amend or correct a medical record after receipt of notice of a potential claim. 

The time is now, the time is right

Ensuring that medical records are well-organized and reasonably complete may add a few minutes per chart to the physician’s day. But, physicians whose inadequate records were partly responsible for their involvement in litigation can attest to the fact that the amount of time spent in deposition, meeting with legal counsel, worrying about the case and its effect on their personal life and professional reputation, or preparing for and attending trial far exceeds the time it takes to maintain adequate medical records.

Medication Errors

Labels and Drugs: Prescription Error

(Part 1 of 6 of Medication Errors)

On one hand the term “medication errors” is of wide amplitude and is extremely wide, especially with respect to issues of medical negligence and on the other some may not even know what the term actually constitutes or what is a medication error. Though the list of specific events that may be included in the definition of “Medication Errors” is long, the four blogs that follow will cover for six broad categories under which Medication Errors can be categorized.

This blog discusses the Medication Errors arising from Failure on the part of a medical professional in keeping up with the up-to-date warning and labeling on medicines which are intended to safeguard a patient consumption. 

All labels of a drug sold in India should conform as per the specifications under the Drugs and Cosmetics Rules 1945 which also means that no person can sell or distribute any drug unless it is labeled in accordance with the said Rules.

Labeling is the norm that provides comprehensive and concise statement of a drug’s Quality Safety and Efficacy. This sort of labeling includes information pertaining to indications, effects, dosage form, frequency and duration of administration, warnings, hazards, contraindications, side effects, precautions and other relevant information.

The safe use of all medicines depends on users reading the labeling and packaging carefully and accurately and being able to assimilate and act on the information presented and therefore it is mandatory that all labels must be clear and concise and must bear all necessary information regarding the safe use of a product.

A certain category of labeling is “Prescription Drug Labeling”. This sort of labeling is done for those products that cannot be used safely by consumer unless a physician diagnosis and supervises the administration of the said drug. The drugs in this category are those that have an unavoidably adverse effect if not used as per prescription and at the same time the benefits of using such drugs outweigh the accompanying risks.

It is the expert judgment of a practitioner to decide the use of a drug for a particular patient. Under Rule 97 the drug labeling regulations in India, requires specific caution statements to be present on label for the different drug schedules. Prescription drugs in India are categorized under Schedule H, Schedule G and Schedule X of the Drug and Cosmetics Rules, 1945.

• Schedule H Drugs carry the symbol “Rx” and the “Warning: To be sold by retail on the prescription of a Registered Medical Practitioner only”
•  Schedule G Drugs carry the following mandatory label - “Caution: It is dangerous to take this preparation except under medical supervision”.
• Schedule X Drugs carry the symbol “XRx”. The container of a liniment, lotion, liquid antiseptic or other liquid medicine which is used for external application only shall carry the warning ‘For External use only’.

Thus, the manufacturer of a prescription is required to provide adequate labeling for practitioners to be able to administer or dispense the drug safely and for the purposes for which it is intended. Thereby meaning that the practitioner who prescribes a medicine shall at all times must have update information of the drug so prescribed in order to safeguard the patient against “medication errors”. Some cited examples of medication prescription errors have been:-

• Children being prescribed an adult dose of medication
• Repeat prescribing of medication without proper review
• Patients being prescribed the wrong dose
• Medication being given to patients who have symptoms that suggest the drug should not be given to them and the drug is contraindicated
• Chemists and pharmacists dispensing the wrong medication or an incorrect dose of drugs

A simple lack of care, an error of judgment or an accident, is not proof of medical negligence on the part of a medical professional only in case where the doctor has followed a practice acceptable to the medical profession. It is obvious that taking the wrong medication can cause serious side effects and in rare cases can also result in death. 

Although in most cases it is ideal to trust that one has been given the correct medication however, one must always check the packaging, contents and literature included with all medicines before taking it. If one has been issued with a prescription for medication by a hospital or a practitioner the one should check that the medication you are given by the chemist matches the prescription and also that the medication prescribed is the correct type and strength to treat the condition. 

Supreme Court says: “A PATIENT WHO DOES NOT LISTEN TO HIS DOCTORS ADVICE OFTEN HAS TO FACE ADVERSE CONSEQUENCES”

Your ‘best interest’ is in your decisions and the doctors have to guide you in order to enable you to take such decisions for yourself.

The Supreme Court in the case of Martin F. D’souza versus Mohd. Ishfaq (2009) laid down no prompt arrest for Doctors on Medical Negligence and also said ‘a patient who does not listen to his doctors advice often has to face adverse consequences’. The appeal was filed under section 23 of the Consumer protection act from the National Consumer Dispute Redressal Commission, New Delhi to the Supreme Court of India in 2002. This post discuss the judgement, raises some intriguing questions on its implementation and provides a brief write-up on ‘role of consent – and what does not listening to your doctors mean’.

FACTS OF THE CASE

The  case concerns the kidney transplant surgery of one Mr. Mohd. Ishfaq (appellant -respondent) at the Nanavati Hospital, Mumbai. The patient wanted to be operated by Dr. Sonawala but due to his unavailability for a month, Ishfaq approached Martin F. D’souza (another doctor on duty during that period of time). Mr. Ishfaq was already on dialysis and an investigation was put in place for a suitable kidney donor. In April, 1999, Dr. D’souza had to advise a broad spectrum of antibiotics to the patient as he refused being admitted to the hospital (Refusal is Consent. For a basic discussion on What amounts to Consent – kindly refer to the last part of the Post).

Once on Antibiotics Mr. Isfaq was going through 3 sessions of dialysis in a period of 9 days. Realising his serious condition, he finally agreed to be admitted to the hospital. (Medical Facts: For a kidney patient, the Creatinine Levels and Urea levels are tracked. Normal levels are – 0.7 to 1.5mg% for Creatinine and 10-50 mg% for Urea). The patients (Mr. Ishfaq) Creatinine level was a shooting 13mg with Urea levels at 180 mg.  Once he was admitted to the Nanavati Hospital various tests were carried out. The reports  reveled infections in blood and urine. Knowing this and with situation becoming critical, the patient insisted on an immediate transplant. The doctor’s advised against it for a period of 6 weeks due to the blood and urine infections.

The patient got himself discharged from Nanavati Hospital. Dr. D’souza suggested taking an injection (which suited his situation), 3 times dialysis (in a week) and some antibiotic dosage. Once on this

dosage, the patient complaint of tinnitus (ringing in the ear) and was immediately asked to stop taking the injections.

The patient though, at his will continued taking the injections and did not complaint of any sort of deafness during that period. He communicated with the doctors at Nanawati Hospital for a period of 10 days with no signs of deafness. Since the patient was now not taken medicines as suggested by Dr. D’souza, the  patient was deemed to be no more a patient at Nanavati.  A month later, the patient was operated for a transplant at Aly Khan Hospital where he was treated with antibiotics. The patient by this time had become hearing – disabled and following the operation he filed a complaint for compensation of 12 lacks in lieu for his hearing impairment in the National Commission in Delhi. The Commission upheld his complaint and granted a compensation of around 7 Lacks. Dr. D’souza appealed to the Supreme Court which reversed the order.

LAW

The general principles on Medical Negligence have been lucidly contained in a 3 bench decision of Jacob Mathews v. State of Punjab (2005) 6 SCC 1, however difficulties persist in the application of these principles in specific cases.

OPINION ON WHAT THE COURT HELD

The court after inspection of the Law on Medical Negligence and Law governing treatments in cases of emergency stated that the patient was Doctor was not to be blamed in any way and it was the non-operative attitude of the patient which was the cause of his ailment i.e impairment of his hearing. The court stated “A patient who does not listen to his doctors advice often has to face adverse consequences”.

The court held that there should be no arrest for doctors to avoid frivolous complaints about doctors, which seemed to have increased leaps and bounds. The apex court also restrained courts, including consumer fora, from issuing notices to doctors for alleged medical negligence without seeking an opinion from experts. The courts therefore have extended the application of BOLAM test to another set of litigation. Now, the courts would sit to hear from experts on the frivolousness of the complaint prior to an arrest. The difficult part is in doing so without going into the merits of the case. As it is one of the general principles of negligence – - ‘ ..on the facts and circumstance of the case…’  discussed in Jacob Mathew’s.

The court also stated and I quote, “While this court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against doctors have increased by leaps and bounds in our country particularly after the medical profession was placed within the purview of the Consumer Protection Act“. The court did lay down its intention of maintaining a very fine balance which would rest on the opinions of experts. The bench of Justices Markandeya Katju & R M Lodha ruled that “courts must first refer complaints of medical negligence to a competent doctor or a panel of experts in the field before issuing notice to the allegedly negligent doctor. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameter laid down in Jacob Mathew’s case, otherwise the policemen will themselves have to face legal action”.  Has the court gone too far in order to weed out frivolousness  from complaints? Has the court considered the arbitrariness in letting a panel of doctors (who would one day sit as judge for their own case) discuss the case without an interference from a judicial interference? Are the police force trained and equipped with the ability to distinguish between cases that come to them? Though these suggestion are progressive and do tap litigation on medical negligence, there is a need for guidance on steps to be taken for furthering the suggestions as guided actions.

The case brings to forefront the role of consent – that is derived from the autonomy of an individual. Here in below is a basic discussion on Consent.

Be informed about Consent for a Treatment

A patient has a right to consent and refuse a treatment being advised by the doctors. Most of us agree to be treated not because we have understood the treatment but because we trust the doctor. Is that the right approach? Well, in theory it is not but it is what is widely practiced. What can you do to know when to consent or not? Here are some things you should know before you give consent to a treatment.

What is Consent? A doctor needs your permission to examine you. For instance, walking into a doctor’s clinic is implied consent for being examined. A consent is creates an agreement in the eyes of the law. Most surgeries require you to sign a consent form whereas routine inspections are done without signing of a consent form. Both of these are nevertheless consented treatments.

Who is eligible to give consent?

The first question that a patient should ask is – whether he/she is eligible to give consent? Legally, any one above the age of 18 and with a sound mind can give consent. This is not as easy as it looks. There are times when you won’t be in position to give consent because you do not understand the treatment being offered. There may also be a situation where you are desired to give multiple consents because of the nature of the surgery. In such cases each of these consents is independent and important.

Who decides if you are eligible to give consent?

So, the question is – who decides whether you can give consent or not? It is your examiner. The doctor, surgeon or in some cases your care-taker (for mentally challenged), your parents/guardians (for children below 18). These people have a duty to ensure that you understand your treatment. They are bound by the duty of ‘best interest’ of the patient in cases where they will be taking your decisions. In cases of emergency, the doctor on duty has the obligation to treat you in your best interest either to save a patient from dying or becoming severely unwell. In cases, where the patient feels (either after being treated or during his treatment) that the decision has not been taken in the best interest he can always seek assistance from other doctor’s/surgeon’s or a lawyer working in that area.

Information for informed consent

Though the doctor has a duty to inform you about the treatment before he seeks your consent – but there are questions that you may want to know answers of before being treated. The most important of these are – what is the treatment involve? What are the benefits of the treatment? What are the risks involved? What happens if you don’t take the treatment? And is there an alternative treatment available? A patient may ask unlimited questions and can seek reasonable time to introspect his final decision before he consents to the treatment, unless it is a case of an emergency. In cases, where it is difficult for you to understand the treatment, the patient has a right to seek advice from other doctors who can explain things better or from friends who have the knowledge etc. Giving consent to a treatment is an agreement and it is important the patient gives an informed consent.

Can I refuse treatment?

A refusal to be treated is also perfectly acceptable legally – and counts as consent. The doctor and your care-takers, parents/guardians are bound by your decision to not be treated. Also, as a patient, you can change your decision any time during the treatment but you need to well understand what implications it may have on your health. This consent, like mentioned above, will be independent of your earlier consent and should be communicated to the doctors by the patient or through your parents/guardians clearly.

[Note: This post was earlier published here: http://blog.medicallaw.in/supreme-court-a-patient-who-does-not-listen-to-his-doctors-advice-often-has-to-face-adverse-consequences/ ] 

I, Me and Mine - Who owns your body?

So, you think you own your body? Well, if you do – then you have been abandoning your rights in your hair (when you unintentionally dropped them in the shower); your dandruff (you unwillingly dropped on the dinner table last night); your nails (you cut and decoratively manicured last month)! You lost your property and the rights in it. What if someone files a legal case against you seeking reimbursement for the medical treatment of a disease they acquired from your property, I mean, your body/body material not appropriately managed? Would you still want to own your body?!

May be not.

There are various debates around the concept of ‘ownership’ of body and/or parts of body. There are three principle questions that are most sort after by medico-legal philosophers who have ventured this area:

a) whether there is any property in body and
b) If there is any property in body _ who owns it?
c) If someone else owns our bodies, what is the extent of that ownership?

The post summarizes arguments presented for and against these questions and concludes with a reasonable take of the author on each of these.

Initially, it is obvious to state that there is no property in the body, any-body. It is merely an existence of the a state of matter; like the birds, the animals, the trees. With the advancements of medicine this state of matter could be preserved for a longer duration that its natural existence. The fact that the legal framework around property rights in the Body aims at protection of this ‘state of matter’ (whether body, separated body material or body part/organs) reflects the presumption of bodies being possessed and owned.

There is no owner of the body, but there may be claims of ownership in the ‘state of the body or being’. Let’s look at it this way, the owner of the body is no one, but the body itself and not the soul that possess the body nor the brain that controls the voluntary and non-voluntary functions. Here I agree with the words of Prof. Rao who in his works, states that there is a ‘person’ akin to the body. This ‘person’ takes decisions for the body till the time living beings own his/her body. For after death issues, Prof. Harris’s argument, that ‘there is no one to own it because there is no one living in it anymore’ supplements the thought.

Consolidating the above two, it is clear that the extent of ownership would be improbable to be defined in clear words and do more damage if defined in blanket words. Considering this, it would not be incorrect to state that the question, whether there is ownership in body or not can be answered only after taking into account the number of claims that are made for a particular body.

The claim can arise from the number of interactions that a body has with doctors, researchers, society at large etc. For instance, doctors who use a diseased organ may have intellectual property rights on that body part and research; or a segment of the society (people requiring transplants) may have a right in the organs of a terminally ill patient. In the case of Re Kelly, the house of lords stated that ownership arises with the addition of ‘something’ to the existing state of matter.

Does one own body or the dignity in the body? It is considered disrespectful to treat body like property. Justice Gage in the case of AB v. Leeds noted it to be ‘inappropriate’ to discuss the terms of who owned the body of the dead children. Hence the principles of autonomy coupled with dignity and respect for life pulls away from the idea of property in body.

Nevertheless, if we move forward with the argument of there being property rights, the next big question will be – what is the extent of this ownership?

Let me first lay down the spectrum of Ownership in this context. Logically, there can be ownership at three stages:

Before life (Fetus) ___________________During Life __________________Post life/After Death

Since the debate on ‘when life begins’ (inception of pregnancy? or 18 weeks fetus? or born person?) and ‘ends’ (death, dying and/or terminal illness) is not a settled one, the above stated spectrum may be questioned. These may not be the absolute defined stages for discussing ownership. I would choose not to dwell into the debate of beginning of life, personhood, and status of a foetus, status of cadavers, and status of patients in vegetative state and make this an essay of life and death, rather, for purposes of weighing the merit of the ‘extent of ownership’ argument reinforce belief in the spectrum drawn above. Also, for ownership reasons, the definition of life and death can be easily understood in the following sense – given that there has to be an existing ‘body or material or organ’ – life will be defined with the detaching of the umbilical cord (that is separating autonomy of the mother and the baby). Let us look at some of the ways in which extent of ownership can be defined.

Divide, split and own: There is a technical problem in owning of complete bodies. Consider this, though the sale of sperm, hair etc is acceptable because they are separated body materials, the same is not possible with complete/whole bodies – that is against the dignity of the body which is not a commodity of sale. Hence in case of divide, split and own there is a consideration for an argument of ownership and its extent.

Medical Research and ownership entitlements: The Utility theory of Bentham proposes the use of bodies for the purpose of the larger good of the society in medical research is driven towards ownership rights of the society and state in the body of all as it further medical advancements for all. Raz supplements Bentham in the way that he states, one body is the means and one body is the end. That is use of one body for the benefit of the other body. But he also states that for the sake of the medical research and development one cannot undermine the dignity, autonomy of body used in the process. The Helsinki declaration also furthers this idea by placing human dignity over use of bodies for medical research.

One body, many owners: In case of a surgery mentally ill or incapacitated person or children (like in the case of Bristol or AlderHey) the ownership rights dwindle. The doctor or the surgeon has a right as per the law to take decisions in the ‘best interest of the patient’, hence the baton of taking decisions passes on from one body to another by a process established by law. Hence, isn’t the law presuming an extent of ownership by enacting laws that do not let minors or incapacitated patients take decisions for their own body? Moreover, by making guardians, doctors, physicians take decisions for these ‘minor/incapacitate bodies’, the law is defining extents of ownership.

Concluding remark: The ownership of the one carrying the body is founded in the possession of the body. I agree with Shildrcik when he states, bodies are ‘leaky’. They are so because autonomy, which is akin to exercising ownership, is not stable in that one body at all points on the spectrum drawn above.

[Note: This blog was earlier published here by Rimali Batra - http://blog.medicallaw.in/i-me-mine-who-owns-your-body/] 

A doctor not negligent for all that goes wrong

Bibekananda Panigrahi v. Prime Hospital Limited (NCDRC, 2015)

The complainant, Mr. Bibeknand Panigrahi took his father (the Patient since deceased) to Prime Hospital Limited (Hospital), where the Patient was operated by one Dr. Maheswar Sahoo (Doctor) for acute appendicitis on 05.06.2006, and the stitches were removed on 16.06.2006. Unfortunately, the surgical wound showed “gaping with pus discharge” and therefore the Patient was made to stay in the Hospital for a few more days, for dressing.  However, the wound got worsened and even after 15 days i.e. on 30.06.2006, the Doctor on through diagnosis and investigation was unable to detect the “cause of the infection” but assured the Patient that he would be cured soon.  

The Patient however developed a fecal fistula and hence in a day the dressing was to be done thrice and expensive injections had to be administered to the Patient.The Patient was diabetic and was already taking insulin however the dose of the same was increased considerably by the Doctor.Thereafter, the Patient was shifted to a nearby clinic and nursing home on the promise that the Doctor would visit the Patient, regularly.

On 03.08.2006, when the Patient was shifted to SCB Medical College, the Professor of Surgery opined that the Patient was a “victim of a mistake” committed by the Doctor post-operation/surgery.

As per the professor, many internal wounds were not taken care properly by the Doctor. Therefore, another surgery was carried out at the SCB Medical College, however the Patient died.

The son of the Patient filed a consumer complaint before the State Commission and prayed for compensation of Rs. 26, 50, 000/- from the Doctor and the Hospital.

The State Commission dismissed the complaint and hence the complainant approached the National Commission.

The case of the complainant is that the Patient had appendicitis and the same could have been treated by medicines however the Doctor and the Hospital performed the operation, which operation was however not carried out properly, being negligence on the part of the Doctor and the Patient.

The Doctor however put forth the following contentions to state that there was no negligence on the part of the Doctor:

• The Patient was actually a school friend of the Doctor and the Doctor took all care of the Patient,
• The Patient had sever gangrenous appendicitis, which had to be carefully operated and there was no lapse in the operation or post-surgical care by the Hospital and the Doctor,
• The gaping wound occurred because of the delayed healing of the wounds of the operation,
• It was Patient’s decision to take discharge from the Hospital and go to SCB Medical College.

The National Commission, on perusal of the medical record on the file, observed as follows:-

• The patient had high fever and there was a lump in right iliac fossa and therefore a decision was taken for appendectomy,
• As per the operative notes, the abdominal wall was opened by right para-median incision (this refers to a surgical incision, especially of the abdominal wall, close to the mid-line), and there was pus in the peritoneal cavity. The Appendix was gangrenous. The base of the appendix was tied up after removing the gangrenous appendix. There was pus in spaces and even after removal of stitches, there was gaping of wound with pus discharge because of which the Patient developed fecal fistula,
• At the time when the Patient was admitted, the Patient had 102 degree (F) temperature, 210 mg% of blood sugar and 91 mg blood urea and 4.8 mg% Creatinine – these values are of very high importance.
• The Patient had hypertension and had been on medication for the last 10 years.

The Judgment

1.        Doctrine of Res-ipsa loquitor (meaning, things speak for themselves): 

        The court did not apply this doctrine because in the instant case, the development of fecal fistula was a sequel gangrenous appendicitis and the fact that the Patient was diabetic is the additional cause for poor healing of wound.

2.         Reliance on Medical Literature:

• Appendectomy is one of the commonest procedures performed in surgical practice
• The post – appendectomy faecal fistula formation, though it is a rare complication, is associated with significant morbidity and
• Most of the fecal fistulae respond to the conservative treatment in the absence of an underlying pathology and distal obstruction.

3.         Reliance on doctrines and principles by the Supreme Court: 

• Jacob Mathew’s Case (SC, 2005): A medical practitioner when faced with a medical emergency tries his best to redeem the patient out of suffering and the Doctor gains nothing in by acting with negligence or by omitting to do an act.
• Martin F. D’Souza’s Case (SC 2009): A medical practitioner will not be liable just because things went wrong as chance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another – he would be liable only if the conduct fell below that of the standards of reasonable competent practitioner in his field.
• Roe v. Ministry of Health (UK, Lord Denning): We would be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong.
• Indian Medical Association v. V.P. Shantha (SC, 1996): Court / Consumer Forums should keep the above facts in mind or else it would be disservice to the public and doctors should not be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence.

Hence, the death of the Patient occurred due to multiple factors and there was no negligence on the part of the Doctor or the Hospital either during the surgery or the post – surgery care / treatment. The Appeal of the son of the Patient was hence, dismissed with the following words:-

“The Doctor / Patient relation is at a crossroads. Some patients want the doctor calling all the shots, deciding the best treatment path to follow. Patient misses the trust and warmth found in the personal bond with a caring, competent physician. Boundaries in the doctor – patient relationship is an important concept to help health professionals navigate the complex and sometimes difficult experiences between patient and doctor where intimacy and power must be balanced in direction of benefiting patients”

-J.M Malik, Presiding Member and Dr. S.M Kantikar, Member

The NCDRC has formulated its judgment based on a more elaborate piece of literature written by Mr. Kent Bottles, MD titled “Doctor Patient Relationship for 21st Century”