TALK DELIVERED ON “SAVE YOURSELF FROM MEDICO LEGAL COMPLICATIONS” AT KGMU IN LUCKNOW OBSTRECTICS & GYNAECOLOGY SOCIETY ON 16-10-2011

Hello every body; It was a pleasure to hear the medical experts on the intricate medical subject of PPH for last few minutes. I think now we need a mood change and for some time switch to legal issues for which I am here before you this evening. The journey of medical negligence cases in Consumer Courts started with the judgment of Indian Medical Association versus V.P. shantha of the Hon’ble supreme Court of India in the year 1996 when it held that the medical professionals ; hospitals ; nursing homes were all covered under the definition of “rendering service” under the Consumer Protection Act, 1986 and hence would be amenable to the jurisdiction of Consumer Courts. Thus started a big spate of medical negligence litigation in this country. Law has developed a great deal on the subject of “Medical Negligence” since then; any amount of time to discuss it all would be less. Briefly stated all that the law expects from a doctor is to exercise their ”duty of reasonable care and skill”. The word “reasonable” in itself speaks volumes that if a doctor has done what a reasonable and prudent person would have done in diagnosing and administrating treatment on the patient then irrespective of the outcome of such a treatment no finding of medical negligence can be recorded against a doctor by any court. Today I am supposed to tell you about some tips by which you can save guard yourself against legal cases. Well the list can be unending yet however I am going to emphasize on some very important tips. Judicial trend shows that the courts give due weightage to proper records. Be it the doctor’s prescription ; the case sheet or the operative notes. Hence much attention must be paid to proper documentation; recording of complete diagnosis of the patient ; the history ; the tests prescribed and the treatment administered. The hospital records are primary evidence of proper procedure duly followed in treatment of the patient. Non production of hospital records in the court may draw an adverse presumption against the hospital in the court proceedings. I recently handled a case in which a district consumer forum awarded compensation against the hospital for incomplete records i.e. it was a case where a lady patient who came for pregnancy was tested “positive for HIV” and even though she was advised retest by the hospital “all verbally” the records were silent. The complainant built up a case that she was harassed due to positive HIV report and which caused her mental anguish and the hospital never informed her of retest. Believing the case of the patient the consumer court awarded compensation in her favour. One single endorsement or “written advise” for “retest” could save the hospital of unnecessary litigation. The hospital has filed an appeal in the U.P. State Commission. In yet another case the hospital records could not come to the rescue of the doctor due to very cryptic operative notes. I have come across so many “operative notes” which are so elaborate in themselves that the courts take it as a complete defense of the doctor in so far as the methodology of treatment or as the “standard medical protocol” of treatment. Omission to draw a proper prescription at the time of the first visit of the patient to a doctor insofar as the diagnosis is concerned; or the tests advised ; treatment prescribed ; always leads a medical practitioner in to legal trouble. It should be always remembered that even though the prescription drawn by you remains with the patient ; yet however to establish a case against a doctor in the consumer court the patient will always file/rely on your initial prescription to establish a doctor patient relationship in the court. Thus if a doctor’s prescription is complete in itself it will become quite difficult for the complainant to prove you guilty of medical negligence. I recently also came across a case where the initial legal notice sent by the patient was ignored by the hospital/doctor. Result was that subsequently the patient filed a court case and somehow the notices remain unserved to the hospital by the court for a long duration. The hospital thus had no clue of this case and they did not preserve the hospital records of the patient. On a later date the court served the notice, naturally the hospital/doctor was clue less about the details of treatment administered on the patient; putting them under great stress. Thus proper and timely response to the initial legal notice would not only have helped the hospital to set up an effective defense to the case but also ensured preservation of the most important and vital hospital records. I am sure these “few” but “very important” points/tips will help you safe guard yourself from legal troubles. I have always welcomed effective interaction between the audience and the speaker and hence now I request you all to pose specific questions. Thank you!!!