LegalMD Newsletter: Jan, 2019

14 January, 2019

Medico-Legal Newsletter                                                                           Jan, 2019, New Delhi 
Anaesthesiology is a high risk specialty. However the public at large are not aware of the risks involved in anaesthesia. Most of the time there is only a little interaction between the patient and the anaesthesiologist and under such circumstances, when something goes wrong, the patient or his relatives react in a hostile manner towards the anaesthesiologist and many a times they seek Redressal in a police station/courts of law. 
  1. Death due to Anaesthetists (Human Error): Improper techniques & equipments, lack of experience, gross negligence in precautions, careless in method, accidents during intubation/bronchoscopy, over dose of drugs and improper pre-anaesthetic medication. 
  2. Death due to Anaesthetic Agent: Hypersensitivity or adverse effects of anaesthetic agents causing cardiac arrthymia/arrest or respiratory failure due to mayo-neuronal blockage and rarely by liver necrosis and malignant hyperthermia as in cases of halothane administration.
  3. Deaths due to Equipment Failure: Malfunction of apparatus, kinked pipes, cross tubes, explosion etc. 
  4. Deaths due to Functional Problems: Vagal inhibition, obstruction to glottis, cardiac arrthymia, hypotension, sluggish reflex action as in unconscious patients.
  5. Death due to factors other than Anaesthesia:  Disease/injury for which anaesthesia and operation is being done, surgical mishappening (unintentional cutting/tearing of large blood vessels), postoperative events (phelebothombosis, pulmonary embolism, aspiration), physical condition of patient (old age/diabetes/hypertension), inadequate communication between staff and unforeseeable conditions.
Contributory negligence is the non-exercise by the patient of such ordinary care, diligence, and skill so as to avoid the consequence of the doctor’s negligence, e.g., not informing an Anaesthesiologist of an existing endocrinal disorder which can lead to problems during induction, amounts to contributory negligence.
  1. Anaesthetist must attend the patient a day before surgery, do Pre Anaesthetic Check-up and investigate the patient for any alarming situations if required. He must record everything on the case sheet.
  2. Informed Consent: Before administration of anaesthesia, the Anaesthetist must take the consent in writing from the patient or his legal guardian/parents if he/she is unconscious or below 18 years of age. Before consent, anaesthetist must explain the procedure of anaesthesia, type & nature of anaesthetic agent, its side effects, complications & risks involved in the procedure clearly to the patient in local language, so that he can understand the nature and consequences of giving consent. It is the ultimate right of the patient to accept or refuse the medication. Nothing should be decided against the patient’s will. 
  3. Reasonable Degree of Skill & Care: The duty of Anaesthetist is to attend the patient, assess him and optimize the patient with necessary investigations and treatment. He must apply reasonable degree of skill and care in the selection of anaesthetic agent and the procedure. It is the duty of the hospital management to provide adequate and trained hands and all necessary latest functioning equipment. It is also important that Anaesthetic must adhere to standard practice and follow the protocols of the institution. 
    Any act or omission by anaesthetist causing bodily injury, disease or death of the patient is negligence for which he/she can be sued in the civil court or in consumer forum for compensation or can be punished under Sec. 304-A IPC in criminal court. Negligence against an anaesthetist can be proved when injury has occurred only from anaesthetic procedures due to deviation from the standard protocol. The burden of proving that the anaesthesiologist was negligent falls on the complainant. Court allows both parties to prove their case by means of producing evidence. This may include records, books, journals or expert witnesses. 
    But when the negligence is gross and obvious to even a lay man, it comes under the doctrine of res ipsa loquitor, for example, when pre-anaesthetic evaluation is not done before giving anaesthesia, unexplained cardiac arrest during anaesthesia leading to death is negligence. In that case, the burden of proof does not lie on the complainant but the physician has to prove that the accident did not occur due to his negligence. 
  4. Accepted Practice and Procedure: An Anaesthesiologist is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that  particular  art.  Accepted practice means practice accepted as proper by the Anaesthesiologist’s peers. If the Anaesthesiologist has complied with this practice then that is strong evidence that he is not negligent, if he does not then it is likely he will be negligent.
  5. Precaution & Defense: Anaesthetist should update his professional knowledge all the time, keep full and accurate records of his patients. He must check the instruments prior to use do the sensitivity test for a drug known to cause anaphylactic reactions and do not leave patient till recovered from effect of anaesthesia. When an anaesthetist is sued for negligence, he can defend himself by proving that he has applied reasonable degree of skill & care during anaesthetic procedures. The damage to the patient may also occur due to error in judgment, therapeutic misadventure, medical mal-occurrence, unforeseeable harm or when a new disease appears but doctor is not liable as long as he applied a reasonable standard of skill and care.
  6. Choice of Treatment – Discretion: Many anaesthesiological problems can be managed or treated in more than one ways. Anaesthesiologists have the discretion to choose the line of treatment they wish to adopt and can be faulted for the same only if their choice is ‘palpably wrong’ and or dangerous to the patient. An Anaesthesiologist is not liable for taking one choice out of two or for favouring one school rather than another. He is  only  liable  when  he  falls  below  the  standard  of  a reasonably competent practitioner in his field. 
Anaesthesiologist must know and follow a reasonable standards expected of them by the public, their profession and the law. 
He should assess, optimize and assure the patient before taking up for surgery. It is expected from anaesthetist to take pre- and postoperative rounds, develop good patient relationships, take valid and informed consent; keep the things which are necessary during and after the operation; check the equipment and monitors; label all the drugs, supervise the juniors & avoid critical incident sand maintain up-to-date records. 
Few glimpses of the Talk Sessions organized at 
  • Dermatology Association, Vadodara
  • Medanta, Gurgaon
  • Fortis, Vasant Kunj
  • Apollo Spectra, Jaipur
  • Neurological Society of India Conference, Jaipur 
  • Narayana Hospital, Ahmedabad 
  • Anesthetic Association Conference, Ahmedabad
The incidents of attacks on doctors working in government and private hospitals are increasing by the day. Now in order to curb such incidents and keep a check on rouge elements in society. Shiv Sena MP Shrikant Shinde has tabled a private members bill in the Lok Sabha, with stringent measures to deal with people who commit acts of violence against doctors.

As per the Prevention of Violence against Doctors, Medical professionals, and Medical Institutions Bill, 2018:

  • An act of violence against doctors, medical professionals or medical institutions shall be prohibited and mitigated at all levels
  • Any offense committed under this Act shall be cognisable and non-bailable and triable by the court of Judicial magistrate of the first class
  • Whoever, commits or attempts to commit or abets or incites the commission of any act of violence, shall be punished with imprisonment which shall not be less than six months, but which may extend upto five years and with fine which shall not be less than rupees five thousand but which may extend upto rupees five lakh in addendum to recovery of the entire damage to the property or belonging of all concerned
  • If the accused does not pay or is financially incompetent to pay the penalty at that time, it shall be recovered as if it were an arrear of land revenue and any property or belonging to them or his relatives (as per the existing provisions of the Indian Penal Code, 1860), may be attached in recovery of the said penalty.
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