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
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/ ]
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