GENERAL PRACTICE AND LAW

(This discussion is mainly limited to general practice. Law in relation to specialist or consultant is not discussed. But problems of small nursing homes are discussed as many GPs have their own indoor patients)

For ages, medial profession has been considered by the society as a very noble profession & Doctors have been respected as Gods. Because Doctors are directly involved with life, one’s most precious possession that cannot e valued in terms of money.

But in recent times with rapidly advancing medical technology, changing norms of society, and changing attitudes of Doctors themselves, the society has started looking at Doctors as mere professionals performing their duties, for which they are paid, and if expected results are not seen, it looks with suspicion whether the doctor was incompetent or negligent.

The point that has come into limelight is that the doctor is under obligation to treat the patient with due care and skill.

Before we proceed to study, what the law expects from the Doctor let us first see the doctor’s situations and difficulties.

Doctors situation

Doctor is under considerable mental stress. He has to face difficult & emergency cases, 24 hours a day. If he has a very serious patient under his care, the tension may distract his mind while examining other patients, which he cannot refuse to teat.

Most of the patients come to the doctor, because they want treatment form that particular doctor only. As a result the doctor cannot refuse to examine them, even if he is tried or has any personal problem.

General Practitioner has to work with limited equipments, limited and often untrained staff and limited investigation facilities as against large Hospitals. But results expected by the patient are nothing less than 100%

Medicine is not like mathematic where two plus two is always four.

Firstly, inspite of all knowledge and application of mind, there may be an error of judgment which may differ from doctor to doctor. Secondly, ht results of treatment are quite unpredictable. One patient may respond dramatically to one drug while another patient may not. A perfect drug for one patient may cause most unwanted side effects in another. Then there are patient factors like psychological factors which greatly affect the disease picture as well as treatment results and lastly, one cannot forget that no system of medicine is absolutely perfect.

The G.P. often deals with life and an error of judgment may result in loss of life or loss of some function, both of which may be irreversible.

The G.P. cannot read and remember all research and new advance that keep coming up every day. Today’s standard drug becomes outdated in a few years. Several new modalities of investigations and treatment are invented which old generation practitioners may find difficult to implement in day-to-day practice. 

WHAT DOES THE LAW EXPECT

One must say that the law will always be considerate to understand these problems faced by the doctor and will not expect the doctor to be superhuman. But the law expects that the doctor has reasonable skill & competence, that he discharges his duties with due care & skill and that he is not grossly negligent.

RELEVANT HISTORY MUST BE ASKED:

The Practitioner should ask the patient History in details and note down important points on patient’s caseparper. Relevant Past history & Family History must be asked. Eg. If you are going to administer an injection like B.complex or Penicillin, you must ask for history of allergic reactions in the past. If the Practitioner fails to obtain such vital information, he may be considered negligent.

The Practitioner must ask details of previous treatment, past operations, past investigations especially if relevant to present complaints.

Sometimes the patient knowingly or unknowingly hides vita information in which case the doctor may not be held responsible

EXAMINE THE PATIENT FROM HEAD TO TOE:

The Practitioner should examine the patient thoroughly. If inspite of thorough examination, a doctor makes an error in judgment of diagnosis, he may not be held liable. But if patient can establish that a wrong diagnosis was made because of careless examination the doctor is held responsible.

E.g. in a patient with severe headache with fever, failure to look for neck stiffness and suspect meningitis is negligence.

The best way to avoid such situations is to note down important findings in examination on case paper eg. Tenderness in Right iliac fossa, or no tenderness, No active bleeding from wound etc.

INVESTIGATIONS WHER INDICATED MUST BE DONE:

Some times physical diagnosis, which case the Practitioner is expected to ask for relevant investigations

Failure to ask for investigations.

When there are definite signs and symptoms suggesting serious illness or

When patient is not responding to routine treatment may be considered as negligence.

E.g. if a patient has cough for more than 1 month, failure to ask for x-ray of chest would amount to negligence.

If a patient gives H/O hemetemesis, failure to ask for gastroscopy and relevant investigations would be gross negligence, especially if patient goes home without prescription, ah second bout of hemetemesis and dies.

If a patients fever has not responded for > 1wk, & still you don’t ask for widal test and other investigation you may be held liable.

PROVISIONAL DIAGNOSIS CAN BE WRONG

Most of the times, pending report of investigations you have to make a provisional diagnosis & start. Treating the patient. After investigations, the diagnosis and hence the treatment may change

Such provisional Diagnosis and treatment is not considered as error judgment or mismanagement.

Bt the best way to avoid such impression in the minds of the patients is to explain to them in simple language, that definitive treatment will be decided on investigations

Sometimes, a definite diagnosis may not be made, eg. In Fevers (P.U.O.) even after investigations. The treatment is then empirical But such situation must be explained to the patient and an expert or senior’s opinion sought.

WRITE & EXPLAIN YOUR PRESCRIPTION CORRECTLY:

Prescription must be in readable handwriting if a wrong drug is supplied by the Pharmacy (Medicine store) due to illegible handwriting or wrong short forms – both the Practitioner and the Pharmacist will be held liable.

The doctor is expected to prescribe specific, standard and well-established drugs. If a drug which is not more used for the disease in current medical practice is prescribed, & proves harmful, the doctor may e held liable.

The doctor should give specific instructions to the patient, on the mode of administration of he drugs. If a patient drugs. If a patient drinks a lotion prescribed for local application, the doctor may be held liable if he has not explained the prescription to the patient. But, if he can establish that he had explained it to the patient. But if he can establish that he had explained it to the patient, and instructions were written in prescription, yet patent was area less, then he is not negligent.

The medicines should be prescribed in the correct does taking into consideration patient’s age, weight &other factors a wrong and harmful dose may be considered as negligence.

If the drugs are likely to cause some sideeffets, the patient must be informed and cautioned accordingly.

E.g. while prescribing antihistaminic, patient must be cautioned not to drive vehicles, as it may cause drowsiness. While prescribing anti-inflammatory NSAIDS/steroid, patient must cautioned to stop the drugs immediately, if it causes epigastric burning pain.

If the doctor dispenses medicines in his clinic, good quality medicines should be dispensed. Dispensing poor quality medicines or medicines whose expiry date is over will amount negligence.

Before injection of a drug, which is known to cause allergic reaction, a test dose must be given. If inspite of giving at test dose before, anaphylaxis occurs, then it is not negligence. But failure to give a test dose is gross negligence. So also, if anaphylaxis occurs, you must be equipped with emergency drugs & resuscitation equipment – even in a small clinic.

If proper measures injections, oxygen resuscitation are not taken after reaction occurs it will amount to negligence.

EXPLAIN EVERYTHING TO THE PATIENT:

Before starting the treatment GP should explain to the patient is opinion bout his illness the treatment he will be giving and results expected.

-          The seriousness of the disease (serious or minor illness) must be informed.

-          If a disease has 2 different choices of Rx eg. Medical or surgical treatment for ulcer, or operative treatment and lithotripsy for kidney stones then availability of both should be informed and guidance given to make a choice.

Some disease has two well accepted lines of treatment. The doctor has the right to choose any one of them. One doctor may treat the disease in one way and second doctor may treat it in another ways. It does not mean that either of them is negligent. Provided that the line of treatment chosen is standard

MAINTAIN GOOD RECORDS:

It is compulsory to maintain full records in Nursing Homes. In General practice, the records will be limited to very relevant symptoms and finding only.

A family doctor should keep a file of records of all members of the family together, where every illness of all members and treatment given is recorded.

This will also highlight presence of allergies, familial disorders etc. in the family. If a patient is referred to a consultant, all such details & relevant past illness must be mentioned.

KNOW YOUR LIMITS & REFER THE PATIENT IN TIME:

A Practitioner has to work with limited staff & limited equipments at hand. Also, he has to treat all cases from pediatrics to Geriatrics & from all branches of medicine. He has a basic knowledge of all branches but he cannot be expected to be an expert in al branches.

These limits must be realized by the Practitioner and if a case is beyond the limits of his knowledge and expertise, or beyond limits of available equipment & staff, he should not handle such a case but refer it to a proper consultant or big Hospital, after giving only the essential primary & emergency treatment.

If the patient is under your are and in course of time, his condition deteriorates due to natural disease process, for which later you refer the patient, this delay will not amount to negligence, but if the patient can establish, that you were aware from the beginning – that the patient needs to be referred, still you delayed to refer.

E.g. if a patient admitted for loose motions, you refer to a surgeon. It’s correct. But if patient comes with pain and tenderness RIF and you keep on treating till patient’s condition becomes bad & then refer to a surgeon, it will be negligence.

In emergency situations, the limitations of G.P. will be considered sympathetically by the law.

Usually, emergency cases are first brought to General Practitioner, emergency resuscitation in a small clinic cannot be as vigorous & skilled as in an intensive care ward. There are limitations of instruments, facilities, expert paramedical help & personally. If within these limits, doctor has made an effort to give primary treatment, it is not negligence.

In emergency, standards of routine care may not be observed .eg. If patient is bleeding profusely, you might use bandage or instrument that was unsterile, to stop bleeding. This is not negligent. Act.

LEVEL OF KNOWLEDGE:

Law expects a General Practitioner to be a General Practitioner. Skills of a physician (MD) will not be expected from him.

There are no compulsory refresher courses in India for GPs, but they must be aware of established & discarded methods of Treatment. Ignorance is not an excuse. A busy GP. Cannot be expected to have read every latest development & research and established new procedures (CT scan, MRI scan, echocardiography etc.)

Law does not expect very high standard of care. But average standard of a care is definitely expected.

VISITS:

Visit is not compulsory for a doctor.

With due consideration of social circumstances & dangers faced at night the doctor may refuse to call at odd hours.

General Practitioner is however usually called by his regular patients, who are under his treatment. In such a situation, it is wrong to refuse visit to a seriously ill patient. But if the patient is not seriously ill.

-          Doctor may not call immediately but at his convenience or

-          Doctor may ask the patient to be brought to his clinic.

DO NOT REFUSE A PATIENT AFTER ACCEPTING :

If a General Practitioner refuses to attend to a patient totally, for any valid reasons and asks him to show to any other doctor, he is not negligent. The doctor has the right to accept or choose his patient.

But in emergencies when a patient is critical, it will wrong on the patient is critical, it will be wrong on the part of the doctor to refuse to see the patient at all. It s his moral duty to examine and give emergency care, till he is shifted to a Hospital or otherwise. Treating a patient in emergency does not imply that the doctor has accepted the patent it may be purely on ethical grounds and the patient is the referred to Hospital.

However, once you have accepted a patient particularly home visit refusing to se him again will be considered as negligence.

Even if you have refused because of non payment of fees that excuse will not be considered by law, it you were called because of worsening of the patient’s condition.

The doctor may refuse to accept a patient

-          who does not agree with the method of treatment

-          Who in the past has given him bad experience & come for a fresh treatment.

-          Who does not agree to pay the fees?

DOCTOR HAS RIGHT TO COLECT HIS FEES:

The Practitioner has right to decide his own fee and collect it from the patient. Even if it is excessive, the patient has to pay it, when he has agreed to take treatment form him, even if the patient has taken the treatment under compelling circumstances. Patient may complain that fees are excessive in advance then this complaint will not be held. But if they are considerably & irrationally higher than the fees of other doctors, then the patient may be asked to pay a reasonable fed to the doctor.

In a situation, where patient refuses to pay fees, the doctor is always at the wrong end. Because, the only way to recover fees from such a patient is by filling civil suit, which is time consuming, expensive and not good for the reputation of a General Practitioner or nursing home.

If you do not discharge and hold a patient because he has to paid fees or keep his valuable belongings in your possession till he pays his fees. In the eyes of law, you are committing a crime.

The best way to avoid this problem is to explain the approximate bill to the patient and take part of it as advance before admitting.

CERTIFICATE:

The General Practitioner has to give various certificates g. fitness certificate, Rest certificate, Death Certificate, etc. the doctor must only issue correct certificates as it is a legal document.

A false certificate can put a you in great trouble. The diagnosis and other matter in the certificate should match with the medical records kept by the doctor. You cannot defend saying that certificate was issued on request by the patient.

Doctor must always keep a carbon copy of the issued certificate with himself.

Death certificate should not be issued if the person was not under your care before death, because then cause of death is not known.

If there is doubt of foul play, poisoning or death under suspicious circumstances, you should never issue a death certificate. It can put you in trouble, if subsequently some disputes of property arise or some distant relative complains that death was under suspicious circumstances. Such case should be referred to Government medical officers for further investigations.

DOCTOR CAN DELEGATE DUTIES TO QUALIFIED ASSISTANTS:

A doctor cannot do everything for the patient. He may appoint qualified staff to do part of the duties. Eg. A qualified nurse to give injections and I.V. fluids or a junior doctor to carry out his orders and care for the patient.  

If a qualified staff does a negligent act, then the staff will be held liable, provided that the doctor had given correct orders but the staff made a mistake.

However most small nursing homes and General Practitioners have unqualified staff, where this does not apply and the doctor will be held liable for negligent acts of such unqualified staff.

NOTHING SHOULD BE DONE WITHOUT PATIENT’S CONSENT:

No operation or procedure can be done without patient’s written consent.

Before giving consent, all risks involved in the procedure should be disclosed to the patient. If a complication occurs, the possibility of which you had not explained to the patient the patient may claim that if he knew such possibility, then he would not have consented. Of course, a remote unforeseeable hazard or mishap cannot be told in an advance.

If the doctor feels in his honest opinion that certain information about the procedure may be physically or psychologically harmful to the patient, the doctor has the right to withhold such information. At the same time, merely explaining to the patient, otherwise it may to be considered by law. Once patient has signed it, it becomes documentary evidence which is the best defense of the doctor. Even when a written consent is not taken, the doctor may prove that patient has consented after proper understanding.

e.g.; implied consent – consent may be implied form the patients conducts words or circumstances.

Exposing the buttocks for injection like a consent given for injection.

When child is brought to the Practitioner by parents, the parents consent is obvious.

If a patient was given an appointment for a surgery and patient had kept the appointment, his consent for the operation is implied.

In General Practice, when a patient comes to the doctor his consent to his examination and ordinary treatment, to the type of treatment (i.e. Allopathic or Homeopathic or Ayurvedic) is implied.

But this consent does not cover procedures and operations. But implied consent has to be proved by the doctor. It is best that a written consent be taken.

What should be the format of the consent?

There is no fixed legal format for a consent form.

-          The consent should be in simple and non-technical language that can be understood by the patient.

-          It should preferably be in regional language if the patient cannot understand English.

-          The signature should be taken in front of a witness, if the patient is illiterate and gives a thumb impression

-          Informed consent – this is the type of consent that is being taken in western countries and now in our country also. All relevant information of treatment and risks are printed. They are explained to the patient, and then his signature is taken.

-          The consent must be obtained only form adults having reasonable understanding. In case of child below 18 yrs, in mentally retarded patients, the consent must be obtained form the parents or legal guardians.

-          If patient is unconscious or unable to sign, his relative should give consent, the relation between the patient and the relative giving the consent should be clearly stated in the consent form.

Lastly the doctor must remember that consent does not include negligent acts.

Sometimes doctor may proceed without consent.

In emergency situations or in course of operation, if an unexpected situation, not diagnosed preoperatively is detected, the doctor may go beyond the consent. But here, the doctor should prove the nature of unforeseeable circumstances.

If an unconscious patient is brought to the doctor whose relatives are not present, whatever treatment the doctor feels essential to give to save hi life, may be given without consent.

A person on Hunger strike may refuse treatment but his consent is not required when his life is endangered. Similarly, a patient attempting suicide may refuse treatment, but he must be treated without his consent

A psychiatric patient, harmful or troublesome to the society may be treated without his consent.

If a person has an infectious disease with fear of spread, he may be treated in the interest of public health – with out his consent.

Autopsy in medico legal cases dose a not require consent of relatives

WHAT IS NEGLIGENCE?

Negligence is decided on the basis of points.

Had the doctor accepted the patient?

If the doctor has not accepted the patient (but asked to show to another doctor/hospital), Then the doctor cannot be held liable. Giving emergency treatment on ethical grounds to save a patient’s life does not mean that doctor need not hesitate to treat a patient in emergency. But after giving immediate resuscitation, if you do not refer the patient to hospital/consultant but continue to treat him under your care then you have accepeted the patient & are liable.

Was proper medical care given to the patient?

We have already discussed these points in details in the preceding sections. The important point I whether doctor has given proper medical care using the best of his knowledge, skill &experience.

Negligence may be described as commission of an act which other average reasonable doctor would not do or omission of an act which an average doctor would have done.

E.g. if a pediatrician fails to vaccinate a child & later the child suffers from that disease, it is negligence. Similarly a General Practitioner failing to give Inj. T.T. after injury would be considered negligent, if the patient later develops tetanus.

Has the patient received an injury, & is it caused directly by doctor’s negligence?

Both the points are of importance.

If the doctor has taken proper care, but patient has no injury, then negligence cannot be established.

If there is injury, but doctor has taken proper care & precautions, the also there is no negligence.

MISHAPS:

Sometimes, even with best care and precautions accidents do occur.

E.g. While giving injection to a child, the child jumps and needle breaks in the tissues. This is not negligence but mishap. But if you do not immediately inform the parents and do not refer him to a surgeon to remove the broken needle, that will be negligence.

Many such mishaps may occur – I.V. goes out into subcutaneous tissues in fat patient, I.V. bottle may fall to ground and break, an injection spills and so on. These incidents are accidents and are beyond the control of the doctor.

The important thing is that you should be frank with the patients and relatives and explain the mishap. If you try to hide a mishap it will always be interpreted by the patient as a mistake that you are trying to hide.

WHAT WILL YOU DO, IF YOU RECEIVE A LEGAL NOTICE OR SUMMONS REGARDING NEGLIGENCE?

Do not become desperate or panicky.

Do not answer any notice without consulting a lawyer. Because your answer to the notice forms the basis of the case. It will be very difficult to justify your case, if you make wrong presentation without considering legal implications.

If you are insured, first inform your insurance company in writing, with Xerox copy of legal notice.

Collect all medical records and other documents of the case and keep them safe in your custody

Do not make any alterations on the case papers. That will be used as evidence against you.

Discuss the case only with your lawyer. Discussions with third party may boomerang as witness against you.

Ignorance of law is not an excuse, so you must have primary knowledge of the laws related to medical profession.

ALL DOCTORS SHOULD BE UNDER INSURANCE.

Most of the cases against doctors are against specialists, about whom expectations of the patient are higher and who carry out more complicated procedures.

Family doctors are often treated & respected as family members or friends, and only basic primary care is expected of them. Even then, the changing trends suggest that all doctors should have an insurance cover to ensure financial relief and mental peace.

The insurance policy terms should be carefully studied. Here only a few important points are mentioned.

The company will not take liability if the policy period has elapsed. So you must pay the premiums in time.

If you are consulting in more than one clinic – Al such clinics & nursing homes should be informed to the company. If a mishap occurs in a clinic, about which mention is not made in the policy, the company will not take liabillity.

So if you shift your clinic or nursing home to a new place, intimate the insurance company immediately.

If you handle a case, of different specialty than your own, the company will not accept the liability eg. If a General Practitioner treats colles, fracture, which gets complicated, company will not take liability.

Names of qualified employees, like nurses must be mentioned in the form – if such names are not mentioned, or if employee is unqualified, the company is not liable for their negligence.

If your nursing home is used by other doctors eg.  Surgeons, physicians, it should be informed to company. Otherwise their negligence will not be covered by policy.

Ay act in violation of the law like M.T.P. Act, or Bombay Nursing Home act will not be covered by the company.

If a negligent act is committed by the doctor under influence of alcohol or narcotics, such a claim will not be covered by the company.

Total liability of the company shall not exceed the indemnity amount of the policy.

Out of court settlements of the case should not be done without written consent from the insurance company. Otherwise, the company is not liable to pay such claims.