Litigation in medical practice is becoming a global problem as Hospital managements are increasingly facing complaints regarding the facilities, standard of professional compliance and the appropriateness of their diagnostic methods.
Obstetrics and Gynecology is one of the important clinical specialties in medical field. Its role in service for the cause of maternal and child health is practically two fold, as they have to ensure quality in managing the health of mother and newborn both and unfortunately a bad outcome is nearly always thought to be due to medical negligence.
FACTORS CONSIDERED BY COURT IN PROVING NEGLIGENCE IN OBSTETRICS AND GYNAECOLOGY
The common causes which could lead to litigation.
- Brain damage in the newborn due to hypoxia from prolonged labour
- Failed sterilization by unsuccessful tubal ligation resulting in unwanted pregnancies
- Complications of hysterectomy such as ureteric ligation and vesicovaginal fistula
- Wrong blood transfusion
- Leaving instrument, tube, sponges, mops, swabs in abdomen
- Gross mismanagement of delivery of woman especially by a doctor under the influence of drinks or drugs
- Performing abortion without indication
- Foetal and maternal deaths by certain drugs
- Malpractice or intra-operative complications
- Unnecessary surgery
- Consent related issues: Majority of the cases were proved negligent for incomplete consents. Many patients filed cases giving the reason that they did not understand the nature of medical procedure to which they gave consent, for which the National Commission has stated the concept of “informed consent” in which all information must be explained in comprehensible non-medical terms preferably in local language about the diagnosis, nature of treatment, risks involved, prospects of success, prognosis if the procedure is not preformed and alternative methods of treatment. The three important components of such consent are information, voluntariness, and capacity
- Failure to detect internal hemorrhage following major vaginal operations or hysterectomy or injuries to bladder and ureters and failure to diagnose intestinal injuries while laparoscopic port insertion amount to negligence
- Failure to diagnose major congenital anomalies in the fetus like absence of the arms, lower limbs, intrapartum and intrauterine hypoxia, inadequate resuscitation of the baby without calling pediatrician to delivery room, undue delay in conducting cesarean causing irreversible brain damage in an already hypoxic fetus, and omission to remove swabs from the vagina or abdominal cavity or to monitor PPH also amount to negligence
- Undue delay in shifting a critically ill patient to a higher center, operating in a setup where no proper emergency facilities are available when needed like availability of oxygen, blood when needed, and ambulance facilities to shift the patient are considered as negligence
- For issues like change in sex of the baby, it is always better to attach a tag to the baby which contains name of the mother and father, sex, time of birth, birth weight, date of birth, and preferably a foot print to be taken
- If consent is taken for a diagnostic purpose, it cannot be used for therapeutic purposes, e.g., a consent taken for diagnostic laparoscopy cannot be used for conducting hysterectomy or oophorectomy even though it was necessary amounts to negligence. If such things are anticipated, a prior consent after explaining all the pros and cons should be obtained separately, even for extension of surgery beyond consent, e.g., doing oophorectomy after hysterectomy for a diseased ovary amounts to negligence. Such extensions/additions in surgery can be done without consent only in dare emergencies to save the life of the patient and should be in a position to defend it later.
LAWS RELATED TO CONSENT
Most of the times the cases registered have issues related to consent. So, it is essential that medical practitioner must have appropriate knowledge of laws related with consent. For medical procedure like examination, treatment, operation, diagnostic procedure or research on patient, consent should be obtained by a doctor.
- Treating/examining a patient without consent is considered as an assault on patient (IPC 351)
- While taking consent, if doctor fails to provide adequate information regarding disease, operation or treatment modality to the patient he may be charged for negligence
- Not taking consent is considered as deficiency in medical service under the section 2(1) of the Consumer Protection Act.
- Consent of spouse Preferably consent of spouse should be taken in following conditions: termination of pregnancy, sterilization, artificial insemination, donation of sperm/semen and any operation that hampers sexual rights of the spouse. In medico-legal cases of pregnancy, delivery and abortion the woman should not be examined without her written consent. When consent has been obtained, the examination should, whenever possible, be made in the presence of a third person, preferably, a female nurse, especially while a male doctor is examining a female patient and vice a versa. Under section 53(2), it has been stated that whenever a female is to be examined, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
- Emergency services and doctors: The MCI regulations 2002 provide that it is responsibility of a doctor to attend the patient in an emergency and treat him accordingly. The doctor should not deny services to patient who is in need. Section 92 of IPC offers legal immunity for doctors to proceed with treatment even without consent of the patient in an emergency condition. Medical records and doctors
- Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment. Failure to maintain medical records for a period of three years or refuses to provide same within 72 hours to the patient or his authorized representative will lead to the professional misconduct.
- Duties with regards to operation: Doctors should explain the nature, extent and risk of operation and take consent of the patient. He should take proper care to avoid mistakes, use proper and sterilised instruments. He should make sure that all swabs, instruments, etc. are removed. If any one of them remain inside the body, the surgeon can be charged with criminal negligence generally called as “Res Ipsa Loquitar” which means „the things or facts speaks for itself‟. He can be charged under section 304A IPC, so the instrument and swab count must be taken before and after surgery.
- Misconduct: The acts of commission and omission on the part of a physician shall constitute professional misconduct rendering him/her liable for disciplinary action. Some of them are firstly improper association meaning doctor should not associate or employ unqualified person to perform operation, treatment, etc. or performing or enabling unqualified person to perform an abortion or any illegal operation for which there is no medical, surgical or psychological indication. Secondly issuing false certificate, i.e., any registered practitioner who is shown to have signed or given under his name and authority any certificate, notification, report or document which is untrue, misleading or improper, is liable to have his name deleted from register. Thirdly sex determination tests meaning on no account sex determination test shall be undertaken with the intent to terminate the life of a female foetus developing in her mother’s womb, unless there are other absolute indications for termination of pregnancy as specified in MTP Act 1971. 4. No act of in vitro fertilization or artificial insemination shall be undertaken without the informed consent of the female patient and her spouse as well as donor. Fifthly, the registered medical practitioner shall not refuse on religious ground alone to conduct of sterility, birth control, circumcision and MTP when there is medical indication, unless he feels himself/herself incompetent to do so.
STEPS TO BE TAKEN IN ORDER TO AVOID NEGLIGENCE
- Rapport: healthy rapport and effective verbal communication should be maintained with patient and his family
- Rationale: the doctor should use all reliable and relevant information like history, examination, laboratory tests, etc. to make diagnosis and to formulate the treatment
- Records: The records should be carefully prepared, complete, accurate, relevant, timely and informative. Because, in a medical negligence trial, the record will be the most important evidence regardless of the facts and the standard of care taken
- Remarks: Do not reprimand the patient and his family. Also, do not criticise any nurse or technician in front of patient
- Prescription: Do not prescribe any medicine unless there is an appropriate therapeutic indication for it
- Respect: An attitude of care and concern, a relationship that suggests thoughtful professionalism and a humanistic approach many times solve problems
- Risks: The patient and his family must be informed of all anticipated risks while performing treatment or operation
Most of the times the cases registered have issues related to consent. So, it is essential that medical practitioner must have appropriate knowledge of laws related with consent.
Litigations are always more in obstetrics, because of high expectations as everyone would be waiting for a positive outcome. If any untoward effect happens either to the mother or to the baby, their dreams will be shattered which if not handled with caution will end in litigations. So if reasonable skill and care in diagnosis and treatment, proper documentation and legally valid consent are not followed in practice, a situation might come where there will be a maternity home on one side and a law firm dealing with medical malpractice on the other side of the building, but if followed in practice, it is not a probability but possibility to prevent litigations.