MEDICAL RECORDS AND ISSUES IN NEGLIGENCE

09 November, 2017

Medico-Legal Newsletter
November 2017, New Delhi
MEDICAL RECORDS AND ISSUES IN NEGLIGENCE
“Poor records mean poor defense, no records mean no defense”
MEDICAL RECORDS are the document that explains all detail about the patient’s history, clinical findings, diagnostic test results, pre and postoperative care, patient’s progress and medication. If written correctly, notes will support the doctor about the correctness of treatment. It is important both for the patient, as well as, for the doctor as medical records are the one of the most important aspect on which practically almost every medico-legal battle is won or lost. In 1995, after the Honourable Supreme Court gave the decision that Doctors also come under the purview of the Consumer Protection Act, 1986 the medical records have become an important aspect of the written evidence.

Talking about the development of 
medical record, in 1752 A.D. Benjamin Franklin set up an incorporated Hospital in Philadelphia in the United State of America. This hospital is presently known as Pennsylvania Hospital. He introduced medical record by preparing a file of special cases on which patients' name, admission date, discharge date etc. were written. In the same way, another hospital was opened in Boston in 1821 A.D. where a typical method of keeping relevant data was initiated. Separate files were opened for different individual patients in order to keep records. This process proved to be more helpful in finding the necessary data regarding the patients. Besides this, it helped in acquiring important facts that could make easier to take care of patients and to conduct the proper research work.

It is important for doctors to realize that Medical Records have become the single, crucial and effective weapon in their hands to counter the false claims of the consumers when they file a case for compensation. Record maintenance is the only way for the doctor to prove that the treatment was carried out properly. Hence, the institutions/hospital management, all clinicians and medical record officer should ensure that the standard of maintenance and preservation of medical records is updated and error-free.
IMPORTANCE OF MEDICAL RECORDS:
  • Monitoring of the patient
  • For those consultants who get referrals or who have been attending the patient at the request of the family or general physician
  • For the nursing staff to carry out the daily instructions regarding the administration of Medicines as they get their instructions and daily orders regarding which drugs are to be given and the frequency of each of them.
  • Satisfy legal and ethical obligations: medical regulatory authority (College), hospital, and legislative requirements for clear and legible records
  • Is of equal importance in the present setting is in the issue of alleged medical negligence as it is very often the most important evidence deciding on the sentencing or acquittal of the doctor.
  • With the increasing use of medical insurance for treatment, the insurance companies also require proper record keeping to prove the patient's demand for medical expenses. Improper record keeping can result in declining medical claims.
                                    WHO CAN HAVE ACCESS TO MEDICAL RECORDS

Medical records are the property of the hospital or patient’s medical practitioner. However, the following can have access to the same:
  • Patient and his Legal Representative, as long as patient has signed a release of records to accompany any request from the legal representative.
  • Other health care providers, if they are directly involved in the care and treatment of the patient.
  • For research purposes as far as the identity of the patient is not revealed and the confidentiality is maintained
  • Medical records are usually summoned in a court of law in certain cases like-road traffic accident, medical negligence, insurance claim etc.
RELEASE OF RECORDS
  • Request for medical records by patient or authorized attendant should be acknowledged and documents should be issued within 72 hours.
  • Maintain the register of certificates with the detail of medical records issued with at least one identification mark of the patient and his signature.
  • Effort should be made to computerize the records for quick retrieval.
  • Certain document must be given to the patient as a matter of right. Discharge summary, referral notes, or death summary are important documents for the patient. Therefore, these documents must be given without any charge for all including patients who discharge themselves against medical advice. Failure to provide medical records to patients on demand will amount to deficiency in service.
  • Doctors are not under any obligation to produce or surrender their medical records to the police in the absence of valid court warrant.
  • A subpoena to produce clinical records is a form of court order. Failure to comply is in contempt of court and may be punished.
 POINTS TO REMEMBER WHILE ISSUING MEDICAL RECORDS
 
PRESCRIPTION: 
  • It should be preferably on the OPD slip of the institution or on the letter pad of the doctor. Drug company or chemist prescription pad should never be used.
  • Must contain patient’s name, age, sex, address and institution/hospital name. Prescribed drug should be preferably in capital letter or else clearly visible.
  • One should mention its strength (especially in paediatric age group), its dose frequency, duration in days, and total quantity (number of tablets and capsules). Below the main drug, also mention other instructions of precautions and what to avoid.
  • If any investigation is advised, do not forget to mention it on the prescription slip and call the patient after the investigation. If patient fails to keep follow update and if then some complication occurs, then patient is also considered negligent (contributory negligence).
 REPORTS: 
  • All should be issued by a qualified person.
  • Biopsy report should preferably be issued in duplicate so that the referring doctor/hospital can keep the original copy.
  • If the pathologist does not give a duplicate copy the referring doctor should get it Xeroxed and should be handed over to the patient.
 REFERRAL NOTES: 
  • They should include the date and time of issue, the patient's general condition, cause of reference, the treatment given and the course of action to be taken.
  • Always keep the carbon copy of referral note especially in case of critically ill patient, with the patient’s signature. The fact that the patient did not go immediately on reference as advised could be proved by the duplicate copy of the referral note kept by the doctor. This could save a doctor who could be sued for alleged late referral after the patient's condition deteriorated.
DISCHARGE CARD: It is important to give due importance to making a proper discharge summary as this is the summary document that will be kept by the patient which reflects the treatment received.
  • Consultant in-charge should himself fill or supervise the discharge card.
  • The discharge summary should mirror the case notes of the patient records with a brief summary, relevant investigations, operative procedures.
  • The date of admission, condition of the patient on the admission, investigation done, the treatment given and detail advice on discharge should be written on discharge card.
  • If any complication is expected after discharge ask the patient to report immediately. Instructions while discharge must be very clear and elaborative.
  • Do not use abbreviations or code messages.
  • It is also important to include instructions to be followed by the patient after discharge including dietary advice and date of next follow-up. The doctor can be held negligent if proper instructions are not given regarding the medications to be taken after discharge, physical care that is required, and the need for urgent reporting if an untoward complication happens before the advised time of review.
  • Should be signed or countersigned by the consultant. A copy of this must be preserved in the case file for future use if required.
  • Discrepancies in the summary given to the patient and what is kept in the hospital records can cause suspicion about tampering with the medical records. These discrepancies should be avoided at all costs as the benefit of this usually goes in favour of the patient.
  • It is not uncommon to have patients who gets discharged against the advice of the doctor. These patients are also entitled to have a discharge summary about the course of treatment. It is imperative to record the fact that the doctor has advised a course of action with all its implications if not followed. The fact that the patient has understood this and has refused it on his volition should be recorded. This should be signed by the doctor, patient, or relative and duly witnessed. This document has to be retained along with the patient records. It will help the doctor in situations where the patient alleges negligence later.
 MEDICAL CERTIFICATES: 
  • Medical certificate should be on institution/doctor letter pad.
  • Date, time, and place should be mentioned.
  • Issue it only for legitimate purpose and only when necessary.
  • It has to be true and clear without any ambiguity.
  • There should be an identification mark of the patient, preferably a thumb impression.
  • Period of illness should be clearly mentioned.
  • Diagnosis disclosure of the diagnosis should be only after the patient’s express consent, unless required by the law.
  • Doctor should maintain the duplicate copy of every certificate.
DO’s AND DON’TS WHILE ALTERING MEDICAL RECORDS
  • Prescription for drugs should be legible with the name of the patient, date and the signature of the doctor.
  • An undated prescription can land a doctor in trouble if the patient misuses it.
  • Proper recording of nursing care, laboratory data, reports of diagnostic evaluations, pharmacy records, and billing processes.
  • No overwriting, while writing the medical notes. In case any amendments have to be made, strike the whole sentence.
  • If any changes are made, sign after making the same and put the date and time below the signature.
  • In electronic record, amend by striking through rather than deleting and overwriting the original entry. After inserting the new note, add date, time and doctor name.
  • Do not alter the notes retrospectively. If something written was inaccurate, misleading or incomplete then insert an additional note as a correction.
  • Entries in a medical record should be made on every line as skipping lines leaves space for tampering with the records.
  • Correction of the personal identification data of the patient like name, age, father/husband name, and address should only be made on the basis of affidavit attested by notary or 1st class magistrate.
 HOW LONG TO MAINTAIN THE RECORDS
  • Under the provisions of the Limitation Act, 1963 and Section 24-A of the Consumer Protection Act 1986, which dictates the time within which a complaint has to be filed, it is advisable to maintain records for 2 years for outpatient records and 3 years for inpatient and surgical cases. However the provisions of the Consumer Protection Act allows for condoning the delay in appropriate cases. This means that the records may be needed even after 3 years.
  • Medical Council of India guidelines also insist on preserving the inpatient records in a standard proforma for 3 years from the commencement of treatment
  • The records that are the subject of medico-legal cases should be maintained until the final disposal of the case even though only a complaint or notice is received.
  • For children 18 year of age + 3 year.
  • For mentally retarded patient forever till hospital/institution is working.
  • From income tax point of view for 7 years.

JUDICIAL DECISIONS IN INDIA ON ISSUES OF MEDICAL RECORDS

There have been many judicial decisions pertaining to medical records from various courts in India and a review of some of the important ones is given in this section.

  • In Nisha Priya Bhatia v. Institute of Human Behaviour and Allied Sciences, GNCTD [CIC/AD/A/2013/001681­SA], decided 23 July 2014, RAW officer Nisha Priya Bhatia alleged a conspiracy by her organisation and an attempt to brand her as mentally sick just because she had filed several complaints, which she said were necessitated by compelling circumstances.  She was however detained for a month at the Institute of Human Behaviour and Allied Sciences because of a false medical report and suffered severe trauma. She then exercised her right under the Right to Information Act, and filed an application seeking information such as certified copies of her case, correspondence, reports, commentaries, entries regarding diet, among others, however, she was not provided the same. Later, she filed an appeal and the CIC held that the   Patient   has   a   right   to   his/her   medical   record   and   Respondent Hospital Authorities have a duty to provide the same under Right to Information Act, 2005, Consumer Protection Act, 1986, The Medical Council Act as per world medical ethics and directed the Institute of Human Behaviour and Allied Sciences GNCTD to provide the information sought within 30 days and issued a notice to show cause why maximum penalty cannot be imposed on the then PIO for withholding the information saying that it comes under the non-applicable clause of the RTI Act.
     
  • If a hospital takes up a plea of records been destroyed, it could be considered as a case of negligence. In S.A. Quereshi v Padode memorial Hospital and Research Centre II. 2000. CPJ 463 (Bhopal), it was held that the plea of destroying the case sheet as per the general practice of the hospitals appeared to the court as an attempt to suppress certain facts that are likely to be revealed from the case sheet. The opposite party was found negligent as he should have retained the case records until the disposal of the complaint.
     
  • In Shyam Kumar v. Rameshbhai, Harmanbhai Kachiya, 2002; 1 CPR 320, I (2006) CPJ 16 (NC), the National Commission said that not producing medical records to the patient prevents the complainant from seeking an expert opinion and it is the duty of the person in possession of the medical records to produce it in the Court and adverse inference could be drawn for not producing the records.
     
  • The National Commission in Meenakshi Mission Hospital and Research Centre v. Samuraj and Anr., I (2005) CPJ (NC) held that the hospital was guilty of negligence on the ground that the name of the anesthetist was not mentioned in the operation notes though anesthesia was administered by two anesthetists. There were two progress cards about the same patient on two separate papers that were produced in Court.

These decisions thereby establish the right of the patient and obligation of the hospitals or medical institutions to give medical records.

CASE LAW: GYNAECOLOGIST/ HOSPITAL FINED FOR FAILURE TO RULE OUT ECTOPIC PREGNANCY

Global Heart and General Hospital and 2 Ors., Jaipur v. Padmka Kanwar (Judgment Dated: 12.10.2017)

FACTS OF THE CASE: The Petitioner challenged the order of State Commission, Jaipur which affirmed the finding of the District Consumer Disputes Redressal Forum, to the effect that there was negligence on the part of the treating doctorin not correctly correlating the Ultrasound report of the lower abdomen of the Complainant, wherein it was opined that there was Ovarian Cyst (left) and Ectopic Pregnancy could not be ruled out and giving wrong treatment to her, the State Commission has reduced the amount of compensation payable to the Complainant to Rs. 1,00,000/- as against the compensation of Rs. 10,00,000/- awarded by the District Forum.  Being aggrieved by award of the said paltry sum, the present Revision Petition was preferred.

DEFENSE OF THE DOCTORS:
  1. All the necessary tests and adequate medication was advised to the Complainant, hence there was no negligence on the part of the doctors.
  2. Since the Urine Pregnancy Test was negative, the doctors concluded that the Complainant was not pregnant and treated her accordingly.
COURT HELD:
  1. After perusing the prescriptions on record and the Ultrasound report, which is considered to be much more efficacious diagnostic procedure, a routine Urine Test was not sufficient to overrule Ectopic pregnancy and hence, the Treating Doctor failed to do what she ought to have done to form a firm opinion that the patient was not pregnant.
  2. Thus, there was negligence on the part of the Treating Doctor. Hence the Court did not find any irregularity with the findings of the previous forums. However, the Court held that a
  3. Having held so, the Court was of the view that the award of a paltry sum of Rs. 1,00,000/- as compensation to the Complainant for the mental agony and harassment suffered by her, is not excessive by any standards.
Hence the Revision Petition was dismissed.
LATEST NEWS: HOSPITALS CANNOT RELEASE INFORMATION OF PERSONS BEING TREATED FOR MENTAL ILLNESS 

Medical establishments should not release photograph or information of a person being treated for mental illness without consent. People suffering from mental illness are entitled to receive services at affordable cost and in sufficient quantity, without any compromise in quality. In addition to that, they are also entitled to receive legal services free of cost and health care under the Mental Healthcare Act, which protects their right to live with dignity.

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