An anaesthesiologist is a doctor (MD or DO) who practices anaesthesia. Anaesthesiologists are physicians specializing in preoperative care, developing anesthetic plans, and the administration of anaesthetics in order to facilitate surgery.
LEGAL ASPECTS OF ANESTHESIA PRACTICE
Anaesthesiology is a high risk specialty. However the public at large are not aware of the risks involved in anaesthesia. Moreover, in the present system of anaesthesia practice in India, there is not much scope for interaction between the patient and the anaesthesiologist and hence there is no rapport between them. 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 land up in a police station or court to seek redressal.Types of cases: An anaesthesiologist can be dragged to court either in a criminal or a civil case. In a criminal case, the aggrieved party files a complaint against the anaesthesiologist in a police station which then investigates the case and the Government prosecutes the concerned anaesthesiologist. This happens only when the offense is of a serious nature. The idea of judicial proceedings in criminal cases is to punish the anaesthesiologist concerned for the lapse on his part. Complainant does not
Get any compensation in criminal cases. In a civil case the aggrieved party itself approaches the court to seek compensation for the harm caused by the action of the anaesthesiologist. These cases can go to the common courts or to one of the consumer courts.
After introduction of Consumer Protection Act (CPA), most of the cases relating to Medical Negligence go to the consumer courts. The reasons for this are the inexpensive and simple procedure and speedy disposal of the cases in these courts.
Grounds for action: Almost always the patient or his relative blames the Anesthesiologist on grounds of negligence. In a criminal case, it is criminal negligence and in a civil suit it is negligence in torts.
Ingredients of negligenceto be successful in a suit for medical negligence, the patient (plaintiff) has to prove four things:
1. Duty: that the anaesthesiologist owed him or her a duty.
2. Breach of Duty: That the anaesthesiologist failed to fulfill his or her duty.
3. Damages: That actual damage resulted because of the acts of the anaesthesiologist.
4. Causation: That a reasonably close causal relationship exists between the anaesthesiologist's acts and the resultant injury.
When the patient is seen preoperatively and the Anaesthesiologist agrees to provide anaesthesia care for the patient, a duty to the patient has been established.
A doctor when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient.
In addition to their own acts, Anaesthesiologists are responsible for those they supervise and who are employed by the hospital. In the ordinary course of events, the plaintiff does not have to establish that a duty of care arises, for this is generally accepted where an Anaesthesiologist undertakes any professional service for a patient whether he
Is paid for that service or not.
STANDARDOF CARE
Since it is impossible to delineate specific standards for all aspects of medical practice and all eventualities, the courts have created the & quot reasonable and prudent& quot physician .
The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither highest nor a very low degree of care and competence judged in the light of particular circumstances of each case is what the law requires.
Every case has its peculiar circumstances. The standard has to be applied with reference to those facts and circumstances under which the Anesthesiologist was practicing at the time in question. Just as the various cardiac, respiratory, hematological and other aspects of a patient's condition affect the medical care and treatment to be rendered, all aspects of patient's condition, the nature of the procedure, the availability of the equipment etc. must be taken into consideration in applying the standard of care and evaluating the potential legal liability of an anesthesiologist .
A person having studied one particular system of medicine can not possibly claim deep and complete knowledge about the drugs of other system of medicine. A person who does not have the knowledge of a particular system of medicine but practices in that system is a quack. Where a person is guilty of negligence per se, no proof is needed.
NATURE OF DUTY
& quot If a person holds himself out as possessing special skill and knowledge he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his directions and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary nor is it necessary that the service be rendered for reward... The law requires a fair and reasonable standard of care and competence. The standard must be reached in all matters above mentioned. If the patient's death has been caused by the defendant's indolence or carelessness, it will not avail to show that he had sufficient knowledge nor will it avail to prove that he was diligent in attendance, if the patient has been killed by his gross ignorance and unskilfulness. As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man.
& quot In the case of a quack, where the treatment has been proved to be incompetent and to have caused the patient's death, juries are not likely to hesitate in finding liability on the ground that the defendant undertook, and continued to treat, a case involving the gravest risk to his patient, when he knew he was not competent to deal with it or would have known if he had paid any proper regard to the life and safety of his patient.& quot
Inexperience is no defense. The patient is entitled to receive all the care and skill, which fully qualified and well experienced Anesthesiologist would possess and use.
Delegation of responsibility to a junior with knowledge that the junior was incapable of performing his duties properly will amount to negligence.
Failure to intubate a patient is not negligence where the hospital authority had weighed up the risks and disadvantages, which might occur as a result .
KEEPING UP TO DATE
The doctor has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.The obligation is to make a reasonable effort to keep up to date. A doctor cannot realistically be expected to read every article in every learned medical journal. But where a particular risk has been highlighted on a number of occasions the practitioner will ignore it at his peril
Professional practices may change over time so that what was accepted .
as the correct procedure is no longer considered respectable or responsible. When a practice becomes outdated so much so as to be considered negligence is difficult to say.However, once the risk associated with an old procedure becomes generally known, so that it can be said that an ordinary and reasonably competent practitioner would have changed his practice, it will be negligent to continue with that procedure .
Lord Denning M.R. said & quot we must say and say it firmly, that, in a professional man, an error of judgment is not negligence. Indian courts have also held the same view. Wrong diagnosis is not deficiency in serviceIn the medical profession, as in others, there is room for differences of opinion and practice and a court's preference of one body of opinion over another is no basis for a conclusion of negligence.
A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment. It is also well-settled that when there are genuinely two responsible schools of thought about management of a clinical situation, the Court could do no greater disservice to the community and the advancement of medical science than to place the hallmark of legality upon one form of treatment.What amounts to a responsible body of medical opinion cannot be determined by counting heads. It is open to a judge to decide that a small number of specialists constitute such a body it is not necessary for the body to be substantial.However,all errors of judgment are not consistent with exercise of proper care. In House of Lords, Lord Edmund Davies said & quot to say that a surgeon committed an error of judgment is wholly ambiguous for while some such errors may be completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising & quot clinical judgment& quot may be glaringly below proper standard so as to make a finding of negligence inevitable.The crucial test is whether the surgeon in reaching his decision displayed such a lack of clinical judgment that no surgeon exercising proper care and skill could have reached the same decision as he didn Hyde Vs. Tameside Area Health authority Lord Denning M.R. said & quot .... not every error of judgment of course, but those errors, which a reasonably competent professional man, acting with ordinary care, might commit. Only such errors are not negligence.& quot
Very often, in a claim for compensation arising out of medical negligence, a plea is taken that it is a case of bonafide mistake which under certain circumstances may be excusable, but a mistake which is tantamount to negligence cannot be pardoned. Gross medical mistake will always result in finding of negligence. Use of a wrong drug or a wrong gas during anaesthesia will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur may be applied .
Degree of care must be proportionate with the magnitude of risk. For example, when an Anesthesiologist was handling a dangerous substance which was known to be highly inflammable and he knew of the hazard arising from electrostatic sparks in an operating room, the degree of care required from him was proportionately high and he was bound to take special precaution to prevent injury to his patient. Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in ordinary routine of daily life.
INFORMED CONSENT
There are certain general duties which, all physicians have to their patients, and breaching these duties may also serve as the basis for a lawsuit. One of these general duties is that of obtaining an informed consent. Consent may be written, verbal or implied. Oral consent is just as valid, albeit harder to prove years after the fact, then written consent Informed consent is a doctrine of some complexity. It means shared decision-making. It means patients right to self-determination and autonomy. The extent of the requirement for disclosure of risk is subject to changing legal interpretations. Professional standard of disclosure: & quot The duty of the physician to disclose is limited to those disclosures which a reasonable practitioner would make under same or similar circumstances. Patient oriented standard of disclosure: & quot What a reasonable patient would wish to hear. What is material to the patient's decision making. Duty to disclose risk is not limitless, but it does extend to those risks that are reasonably likely to occur in any patient under the circumstances, and to those that are reasonably likely to occur in particular patients because of their condition.
There is no obligation to inform the patient about the risk of death from general anesthesia.
Ethically valid consent is a process of shared decision-making based on mutual respect and participation, not a ritual to be equated with recitation of the content of a form that details the risk of a particular treatment or intervention. Does the patient have sufficient mind to reasonably understand the condition, the nature and effect of the treatment proposed attendant risks in pursuing the treatment, and not pursuing the treatment.
The duty of a doctor is to explain to the patient what he intends to do and the implications of that action in a way, which a careful and responsible doctor would do, so that the consent given by the patient was, indeed, a real consent.This duty to disclose sufficiently the risks involved must depend largely on the circumstances in each case. Thus, whilst it may be unnecessary or, perhaps, even a dis-service to warn a patient of any minimal risk, where an operation is either essential or advisable for the patient's medical welfare and continued good health, it may be otherwise, when the intended operation is not one, which is medically necessary but is totallyelectivee.g. a sterilization operation.Medicine is an inexact science. Presumption is that doctor would not give any warrantyBut in the case of cosmetic surgeries the warranties are taken by courts more seriouslySlade LJ, in Eyre Vs. Measday said & quot ...in my opinion, in the absence of any express warranty as to the results of an intended operation, the court should be slow to imply against a medical man an unqualified warranty as to the results of an intended operation, for the very simple reason that, objectively speaking, it is most unlikely that a responsible medical man would intend to give a warranty of this nature. Of course, objectively speaking, it is likely that he would give a guarantee that he would do what he had undertaken to do with reasonable skill and care. In one case the judge said & quot ....I do not consider that a reasonable person would have expected a responsible medical man to be intending to give a guarantee.
Medicine though a highly skilled profession, is not generally regarded as being an exact science. The reasonable man would have expected the defendant to exercise all the proper skill and care of a surgeon in that specialty he would not in my view have expected the defendant to give a guarantee of 100% success.These two cases show that there is an assumption against a guarantee in the medical contractual practice. But an anaesthesiologist being paid by a patient for his services may find himself in difficulties if he gives an express warrantee. Such a situation may arise where a patient, fearful of being awake or waking during surgery, seeks reassurance. The Anaesthesiologist may even be tempted to allay his patient's anxiety by saying words to the effect & quot I can guarantee that you won't know anything about it& quot . The Anaesthesiologist may find him paying the damages for breach of the express contract if the patient is aware during the course of the surgery through no fault of his.
Under the Indian laws a case based on medical negligence can be filed within three years of the occurrence of an incident. Under CPA this limitation is two years. Thus there is a time gap between the occurrence of an incident and the hearing of a case in the court. Court cannot rely on the memory of the parties to evaluate the evidence. More over court has no way to ascertain as to what happened within the four walls of the Operation Theatre. It has therefore to depend upon the records of the case maintained by the anaesthesiologist and the hospital although there is no legal requirement to maintain record, there is no defense in court when asked how one can justify being unable to write on a single sheet of paper what one has done. I am not aware of a legal case which has hinged on keeping a record as opposed to not keeping one.Anaesthesia record itself should be as accurate, complete and neat as possible.The record was not considered proper when previous history of the patient was not recorded .Not supplying copy of Hospital Record to the patient does not amount to negligence. It is sufficient if a discharge card and a summary of investigations, diagnosis and treatment are given.
Anaesthesia record itself should be as accurate, complete and neat as possible.The record was not considered proper when previous history ofthe patient was not recorded .Not supplying copy of Hospital Record to the patient does not amount to negligence. It is sufficient if a discharge card and a summary of investigations, diagnosis and treatment are given .There is no law that states that the case sheets should be furnished to a person like the complainant on requirement, nor there is any undertaking by the opposite parties under an agreement or otherwise to so furnish.
BURDEN OF PROOF
In the ordinary course of events, the plaintiff does not have to establish that a duty of care arises, for this is generally accepted where an Anaesthesiologist undertakes any professional service for a patient whether or not he is paid for that service .Howeverburden 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.
As a matter of right both the parties to a case can produce expert witness to support their claim. Although any licensed physician may be an expert, information will be sought regarding the witness's education, training, nature and scope of practice, memberships and affiliations, and publications. Purpose of collecting this information is to determine, how much weight can be given to that testimony. In many cases, the success of a suit depends primarily on the stature and believability of the expert witness. A nationally recognized expert in the area in question, who is not a personal friend, but agrees with the defense position, may be very valuable.There have been a number of cases where courts have dismissed the complaints when complainant has not produced expert witness to substantiate his claim
RES IPSA LOQITOR
This legal phrase means & quot Things speak for themselves& quot . It applies when the event which is complained of would not ordinarily happen in the absence of negligence. In such cases the burden of proof shifts from the complainant to the defendant. He has to prove that he was not negligent.
Use of a wrong drug or a wrong gas during anaesthesia will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur may be applied.Applying this doctrine requires proving that:
1. The injury is of a kind that typically would not occur in the absence of negligence.
2. The injury must be caused by something under the exclusive control of the anaesthesiologist.
3. The injury must not be due to any contribution on the part of the patient.
Where a patient developed massive tissue emphysema due to wrong placement of needle for jet ventilation of lungs, The Anaesthesiologist was held liable because if the needle had been placed correctly into the trachea, tissue emphysema would not have occurred. Following an operation under general anaesthesia, patient sustained hypoxic brain damage in recovery ward. The Anaesthesiologist was held liable. Itseems to me that if a person goes in for a routine medical procedure, and is subjected to an anesthetic without any special features, and there is a failure to return the patient to consciousness, to say that that does not call for an explanation from defendants would be in defiance of reason and justiceExamples where doctrine of res ipsa loquitor was applied. Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had been frequently been used without any mishap .Surgical mop left in the abdomen during LSCS under Spinal Anaesthesia.
ArteryForceps left in the abdomen during operation. Compensation granted by the State Commission enhanced by the National Commission
Artery forceps left in the abdomen during surgery. Found at the cremation ground when relatives went to collect the last remains .
Metallic tip of suction cannula left in the abdomen during LSCS. Surgeon was held negligent.Preanaesthetic evaluation not done. Unexplained cardiac arrest during anaesthesia leading to death is negligence.
& quot Where surgery for the removal of a swelling from the parotid gland under general anaesthetic, the plaintiff was taken to the recovery ward but sustained brain damage caused by hypoxia for a four-to five minute period, which the Anaesthesiologist had failed to prevent, it was held tobe negligent.Doctrine of res ipsa loquitur was not applied in a case where globe was perforated in the course of giving a local block prior to cataract surgery.Otherexamples where doctorine of res ipsa loquitor was not applied.In another case where a patient suffered permanent partial paralysis of legs following anaesthesia, the court said, & quot ...Medical science has not yet reached a stage where the law ought to presume that a patient must come out of an operation as well or better than he went into it. Patient developed meningitis after spinal anaesthetic. Court found that anaesthetic was not contaminated and the staff had taken the usual precautions to disinfect themselves before the operation, it held the hospital was responsible for some fault in sterilization procedure.
Law allows for three different types of damages. General damages are those such as pain and suffering which directly result from the injury. Special damages are those actual damages which are a consequence of the injury, such as medical expenses, lost income, funeral expenses etc. Punitive damages are intended to punish the physician for negligence, which was reckless, wanton, fraudulent, or wilful. Occasionally exemplary damages are awarded to make an example of the case to prevent any other physician from doing the same thing again. Plaintiff's attorneys generally charge a percentage of the damages, and will, therefore, seek to maximize the award given.
ERROR OF JUDGEMENT.
An error is not necessary a negligent act. Whether an error amounts to negligence or not depends upon the facts of the case.
If some thing happens which a reasonable prudent anaesthesiologist could not have foreseen, the anaesthesiologist will not be held negligent. Court of appeal in a case held that an act of a physician should be judged in the light of knowledge available at the time when the incidence took place. & quot The court must not look at the 1947 accident with 1954 spectacles“ Denning L.J. commented & quot it is so easy to be wise after the event and to condemn as negligence that which was only misadventure. We ought to always be on our guard against it, especially in cases against hospitals and doctors. reasonable man may foresee the possibility of many risk factors, but life would be almost impossible if he were to attempt to take precautions against every risk, which he can foresee. He takes precautions against risk which are reasonably likely to happen.
The phrase means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an & quot author of his own wrong& quot .If patient does not follow doctor's advice, he can not blame doctors for the consequences.Compensationnot granted as the patient himself contributed to the development of deformity by not keeping the plaster for the duration suggested by the surgeon.
Where a person agrees to run the risk of the act of another, he cannot recover any damages in respect of any injury caused by that act of that anotherperson.
Consumer Protection Act (CPA)
After introduction of Consumer Protection Act and bringing medical profession under it, there has been a sudden spurt of interest in the medical negligence matters. However it must be realized that CPA applies only the existing law and has not introduced any new law. Only difference is that since Consumer courts deal only with consumer complaints they can decide them faster. At the same time the access to consumer courts is inexpensive. Services rendered free are not covered by CPA. However if the payment is made by a third party on behalf of the patient (though patient himself does not pay for it), such services come under CPA. Anaesthesiologist even if not hired by the patient directly (i.e. hired by surgeon or nursing home) is liable to pay compensation under CPA .When fee was paid to the Hospital who in turn passed it on to the Surgeon on behalf of the patient, held that patient was a consumer vis-a-vis the hospital as well as the Surgeon. Even if the services of a doctor are not hired by the patient himself but by the hospital, the doctor comes under the purview of CPA.
FEE.
Question whether the fees charged by the doctor is excessive or reasonable does not constitute a consumer dispute.Patient cannot complain about the doctor's fee being excessive.
Right to life guaranteed under the fundamental rights in the Constitution of India is infringed by negligence of the Government doctors.Government or Private Hospitals: Prior to 1995, consumer courts in some cases held that the Government Hospitals are not covered by the Consumer Protections Act.Howeverthe Supreme Court in its judgment in IMA Vs. V. Shantha has clarified this point . In fact, CPA never differentiated between Government or private hospitals. It only said that CPA does not cover services provided free of charge. Since most of the Government hospitals provide services free of charge, they are not covered by the CPA. However, any hospital whether Government or private who collects charges from all or some of its patient is covered by the CPA after the Supreme Court Judgment. In these hospitals even the patients treated free of charge are entitled to move the Consumer Courtsfor compensation for any deficiency in service.
VEXATIOUS COMPLAINTS
Since the approach to the Consumer Courts does not cost anything to the complainant, there is a possibility of this being misused or used as a tool for harassment. Even the courts have accepted this possibility.
Though courts have awarded compensation to the respondents in cases of vexatious complaints ,the amount is not sufficient to act as deterrent against lodging of frivolous or vexatious complaints and harassment of suppliers of goods and providers of services. Possibility of filing false and vexatious complaints with an intention to harass or speculate has been accepted by the courts also.
PREVENTION
Codes of practice improve standards and it is for the benefit of the medical profession and the patients who place themselves in its hands that further steps are taken expeditiously to achieve this objective.
If the rising tide of medical litigation and professional indemnity premiums are to be checked it is necessary for individual Anaesthesiologist to know and to follow the minimum standards expected of them by the public,their profession and the law .The introduction of the ASA & quot Standards for Basic Intra-Operative Monitoring& quot was accompanied by a decrease in the number of anaesthesia-related liability claims. Improved monitoring, especially the greater use of pulse oxymetry and capnography, has undoubtedly contributed to the decrease in severe complications and the associated large awards.The key factors in the prevention of patient injury are vigilance, up-to-date knowledge, and adequate monitoring..
The practice of & quot defensive medicine& quot includes making of pre- and postoperative rounds, developing good patient relationships, and maintaining up-to-date habits.Threat of law suits against Anaesthesiologists seems to have declined somewhat in the USA and it can be accounted for in part by greater attention to monitoring and other standards of anaesthetic practice, including continuing medical education .n India too, slowly people are realizing that it is not easy to get compensation through court unless there is a strong evidence of negligence.
However, Indian Society of Anaesthesiologists must come out with protocols to be followed by its members in different clinical situations. Once this is done the courts will decide the issues of medical negligence by the fact whether the protocol was followed or not. Thus the anaesthesiologists following the protocols will not be held guilty of negligence. This will also improve the patient care and the outcome.
WHO IS AN ANAESTHESIOLOGIST?
An anaesthesiologist is a doctor (MD or DO) who practices anaesthesia. Anaesthesiologists are physicians specializing in preoperative care, developing anesthetic plans, and the administration of anaesthetics in order to facilitate surgery.
LEGAL ASPECTS OF ANESTHESIA PRACTICE
Anaesthesiology is a high risk specialty. However the public at large are not aware of the risks involved in anaesthesia. Moreover, in the present system of anaesthesia practice in India, there is not much scope for interaction between the patient and the anaesthesiologist and hence there is no rapport between them. 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 land up in a police station or court to seek redressal.Types of cases: An anaesthesiologist can be dragged to court either in a criminal or a civil case. In a criminal case, the aggrieved party files a complaint against the anaesthesiologist in a police station which then investigates the case and the Government prosecutes the concerned anaesthesiologist. This happens only when the offense is of a serious nature. The idea of judicial proceedings in criminal cases is to punish the anaesthesiologist concerned for the lapse on his part. Complainant does not
Get any compensation in criminal cases. In a civil case the aggrieved party itself approaches the court to seek compensation for the harm caused by the action of the anaesthesiologist. These cases can go to the common courts or to one of the consumer courts.
After introduction of Consumer Protection Act (CPA), most of the cases relating to Medical Negligence go to the consumer courts. The reasons for this are the inexpensive and simple procedure and speedy disposal of the cases in these courts.
Grounds for action: Almost always the patient or his relative blames the Anesthesiologist on grounds of negligence. In a criminal case, it is criminal negligence and in a civil suit it is negligence in torts.
Ingredients of negligenceto be successful in a suit for medical negligence, the patient (plaintiff) has to prove four things:
1. Duty: that the anaesthesiologist owed him or her a duty.
2. Breach of Duty: That the anaesthesiologist failed to fulfill his or her duty.
3. Damages: That actual damage resulted because of the acts of the anaesthesiologist.
4. Causation: That a reasonably close causal relationship exists between the anaesthesiologist's acts and the resultant injury.
When the patient is seen preoperatively and the Anaesthesiologist agrees to provide anaesthesia care for the patient, a duty to the patient has been established.
A doctor when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient.
In addition to their own acts, Anaesthesiologists are responsible for those they supervise and who are employed by the hospital. In the ordinary course of events, the plaintiff does not have to establish that a duty of care arises, for this is generally accepted where an Anaesthesiologist undertakes any professional service for a patient whether he
Is paid for that service or not.
STANDARDOF CARE
Since it is impossible to delineate specific standards for all aspects of medical practice and all eventualities, the courts have created the & quot reasonable and prudent& quot physician .
The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither highest nor a very low degree of care and competence judged in the light of particular circumstances of each case is what the law requires.
Every case has its peculiar circumstances. The standard has to be applied with reference to those facts and circumstances under which the Anesthesiologist was practicing at the time in question. Just as the various cardiac, respiratory, hematological and other aspects of a patient's condition affect the medical care and treatment to be rendered, all aspects of patient's condition, the nature of the procedure, the availability of the equipment etc. must be taken into consideration in applying the standard of care and evaluating the potential legal liability of an anesthesiologist .
A person having studied one particular system of medicine can not possibly claim deep and complete knowledge about the drugs of other system of medicine. A person who does not have the knowledge of a particular system of medicine but practices in that system is a quack. Where a person is guilty of negligence per se, no proof is needed.
NATURE OF DUTY
& quot If a person holds himself out as possessing special skill and knowledge he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his directions and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary nor is it necessary that the service be rendered for reward... The law requires a fair and reasonable standard of care and competence. The standard must be reached in all matters above mentioned. If the patient's death has been caused by the defendant's indolence or carelessness, it will not avail to show that he had sufficient knowledge nor will it avail to prove that he was diligent in attendance, if the patient has been killed by his gross ignorance and unskilfulness. As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man.
& quot In the case of a quack, where the treatment has been proved to be incompetent and to have caused the patient's death, juries are not likely to hesitate in finding liability on the ground that the defendant undertook, and continued to treat, a case involving the gravest risk to his patient, when he knew he was not competent to deal with it or would have known if he had paid any proper regard to the life and safety of his patient.& quot
Inexperience is no defense. The patient is entitled to receive all the care and skill, which fully qualified and well experienced Anesthesiologist would possess and use.
Delegation of responsibility to a junior with knowledge that the junior was incapable of performing his duties properly will amount to negligence.
Failure to intubate a patient is not negligence where the hospital authority had weighed up the risks and disadvantages, which might occur as a result .
KEEPING UP TO DATE
The doctor has discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.The obligation is to make a reasonable effort to keep up to date. A doctor cannot realistically be expected to read every article in every learned medical journal. But where a particular risk has been highlighted on a number of occasions the practitioner will ignore it at his peril
Professional practices may change over time so that what was accepted .
as the correct procedure is no longer considered respectable or responsible. When a practice becomes outdated so much so as to be considered negligence is difficult to say.However, once the risk associated with an old procedure becomes generally known, so that it can be said that an ordinary and reasonably competent practitioner would have changed his practice, it will be negligent to continue with that procedure .
Lord Denning M.R. said & quot we must say and say it firmly, that, in a professional man, an error of judgment is not negligence. Indian courts have also held the same view. Wrong diagnosis is not deficiency in serviceIn the medical profession, as in others, there is room for differences of opinion and practice and a court's preference of one body of opinion over another is no basis for a conclusion of negligence.
A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment. It is also well-settled that when there are genuinely two responsible schools of thought about management of a clinical situation, the Court could do no greater disservice to the community and the advancement of medical science than to place the hallmark of legality upon one form of treatment.What amounts to a responsible body of medical opinion cannot be determined by counting heads. It is open to a judge to decide that a small number of specialists constitute such a body it is not necessary for the body to be substantial.However,all errors of judgment are not consistent with exercise of proper care. In House of Lords, Lord Edmund Davies said & quot to say that a surgeon committed an error of judgment is wholly ambiguous for while some such errors may be completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising & quot clinical judgment& quot may be glaringly below proper standard so as to make a finding of negligence inevitable.The crucial test is whether the surgeon in reaching his decision displayed such a lack of clinical judgment that no surgeon exercising proper care and skill could have reached the same decision as he didn Hyde Vs. Tameside Area Health authority Lord Denning M.R. said & quot .... not every error of judgment of course, but those errors, which a reasonably competent professional man, acting with ordinary care, might commit. Only such errors are not negligence.& quot
Very often, in a claim for compensation arising out of medical negligence, a plea is taken that it is a case of bonafide mistake which under certain circumstances may be excusable, but a mistake which is tantamount to negligence cannot be pardoned. Gross medical mistake will always result in finding of negligence. Use of a wrong drug or a wrong gas during anaesthesia will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur may be applied .
Degree of care must be proportionate with the magnitude of risk. For example, when an Anesthesiologist was handling a dangerous substance which was known to be highly inflammable and he knew of the hazard arising from electrostatic sparks in an operating room, the degree of care required from him was proportionately high and he was bound to take special precaution to prevent injury to his patient. Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in ordinary routine of daily life.
INFORMED CONSENT
There are certain general duties which, all physicians have to their patients, and breaching these duties may also serve as the basis for a lawsuit. One of these general duties is that of obtaining an informed consent. Consent may be written, verbal or implied. Oral consent is just as valid, albeit harder to prove years after the fact, then written consent Informed consent is a doctrine of some complexity. It means shared decision-making. It means patients right to self-determination and autonomy. The extent of the requirement for disclosure of risk is subject to changing legal interpretations. Professional standard of disclosure: & quot The duty of the physician to disclose is limited to those disclosures which a reasonable practitioner would make under same or similar circumstances. Patient oriented standard of disclosure: & quot What a reasonable patient would wish to hear. What is material to the patient's decision making. Duty to disclose risk is not limitless, but it does extend to those risks that are reasonably likely to occur in any patient under the circumstances, and to those that are reasonably likely to occur in particular patients because of their condition.
There is no obligation to inform the patient about the risk of death from general anesthesia.
Ethically valid consent is a process of shared decision-making based on mutual respect and participation, not a ritual to be equated with recitation of the content of a form that details the risk of a particular treatment or intervention. Does the patient have sufficient mind to reasonably understand the condition, the nature and effect of the treatment proposed attendant risks in pursuing the treatment, and not pursuing the treatment.
The duty of a doctor is to explain to the patient what he intends to do and the implications of that action in a way, which a careful and responsible doctor would do, so that the consent given by the patient was, indeed, a real consent.This duty to disclose sufficiently the risks involved must depend largely on the circumstances in each case. Thus, whilst it may be unnecessary or, perhaps, even a dis-service to warn a patient of any minimal risk, where an operation is either essential or advisable for the patient's medical welfare and continued good health, it may be otherwise, when the intended operation is not one, which is medically necessary but is totallyelectivee.g. a sterilization operation.Medicine is an inexact science. Presumption is that doctor would not give any warrantyBut in the case of cosmetic surgeries the warranties are taken by courts more seriouslySlade LJ, in Eyre Vs. Measday said & quot ...in my opinion, in the absence of any express warranty as to the results of an intended operation, the court should be slow to imply against a medical man an unqualified warranty as to the results of an intended operation, for the very simple reason that, objectively speaking, it is most unlikely that a responsible medical man would intend to give a warranty of this nature. Of course, objectively speaking, it is likely that he would give a guarantee that he would do what he had undertaken to do with reasonable skill and care. In one case the judge said & quot ....I do not consider that a reasonable person would have expected a responsible medical man to be intending to give a guarantee.
Medicine though a highly skilled profession, is not generally regarded as being an exact science. The reasonable man would have expected the defendant to exercise all the proper skill and care of a surgeon in that specialty he would not in my view have expected the defendant to give a guarantee of 100% success.These two cases show that there is an assumption against a guarantee in the medical contractual practice. But an anaesthesiologist being paid by a patient for his services may find himself in difficulties if he gives an express warrantee. Such a situation may arise where a patient, fearful of being awake or waking during surgery, seeks reassurance. The Anaesthesiologist may even be tempted to allay his patient's anxiety by saying words to the effect & quot I can guarantee that you won't know anything about it& quot . The Anaesthesiologist may find him paying the damages for breach of the express contract if the patient is aware during the course of the surgery through no fault of his.
Under the Indian laws a case based on medical negligence can be filed within three years of the occurrence of an incident. Under CPA this limitation is two years. Thus there is a time gap between the occurrence of an incident and the hearing of a case in the court. Court cannot rely on the memory of the parties to evaluate the evidence. More over court has no way to ascertain as to what happened within the four walls of the Operation Theatre. It has therefore to depend upon the records of the case maintained by the anaesthesiologist and the hospital although there is no legal requirement to maintain record, there is no defense in court when asked how one can justify being unable to write on a single sheet of paper what one has done. I am not aware of a legal case which has hinged on keeping a record as opposed to not keeping one.Anaesthesia record itself should be as accurate, complete and neat as possible.The record was not considered proper when previous history of the patient was not recorded .Not supplying copy of Hospital Record to the patient does not amount to negligence. It is sufficient if a discharge card and a summary of investigations, diagnosis and treatment are given.
Anaesthesia record itself should be as accurate, complete and neat as possible.The record was not considered proper when previous history ofthe patient was not recorded .Not supplying copy of Hospital Record to the patient does not amount to negligence. It is sufficient if a discharge card and a summary of investigations, diagnosis and treatment are given .There is no law that states that the case sheets should be furnished to a person like the complainant on requirement, nor there is any undertaking by the opposite parties under an agreement or otherwise to so furnish.
BURDEN OF PROOF
In the ordinary course of events, the plaintiff does not have to establish that a duty of care arises, for this is generally accepted where an Anaesthesiologist undertakes any professional service for a patient whether or not he is paid for that service .Howeverburden 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.
As a matter of right both the parties to a case can produce expert witness to support their claim. Although any licensed physician may be an expert, information will be sought regarding the witness's education, training, nature and scope of practice, memberships and affiliations, and publications. Purpose of collecting this information is to determine, how much weight can be given to that testimony. In many cases, the success of a suit depends primarily on the stature and believability of the expert witness. A nationally recognized expert in the area in question, who is not a personal friend, but agrees with the defense position, may be very valuable.There have been a number of cases where courts have dismissed the complaints when complainant has not produced expert witness to substantiate his claim
RES IPSA LOQITOR
This legal phrase means & quot Things speak for themselves& quot . It applies when the event which is complained of would not ordinarily happen in the absence of negligence. In such cases the burden of proof shifts from the complainant to the defendant. He has to prove that he was not negligent.
Use of a wrong drug or a wrong gas during anaesthesia will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur may be applied.Applying this doctrine requires proving that:
1. The injury is of a kind that typically would not occur in the absence of negligence.
2. The injury must be caused by something under the exclusive control of the anaesthesiologist.
3. The injury must not be due to any contribution on the part of the patient.
Where a patient developed massive tissue emphysema due to wrong placement of needle for jet ventilation of lungs, The Anaesthesiologist was held liable because if the needle had been placed correctly into the trachea, tissue emphysema would not have occurred. Following an operation under general anaesthesia, patient sustained hypoxic brain damage in recovery ward. The Anaesthesiologist was held liable. Itseems to me that if a person goes in for a routine medical procedure, and is subjected to an anesthetic without any special features, and there is a failure to return the patient to consciousness, to say that that does not call for an explanation from defendants would be in defiance of reason and justiceExamples where doctrine of res ipsa loquitor was applied. Where an explosion occurred during the course of administering anaesthetic to the patient when the technique had been frequently been used without any mishap .Surgical mop left in the abdomen during LSCS under Spinal Anaesthesia.
ArteryForceps left in the abdomen during operation. Compensation granted by the State Commission enhanced by the National Commission
Artery forceps left in the abdomen during surgery. Found at the cremation ground when relatives went to collect the last remains .
Metallic tip of suction cannula left in the abdomen during LSCS. Surgeon was held negligent.Preanaesthetic evaluation not done. Unexplained cardiac arrest during anaesthesia leading to death is negligence.
& quot Where surgery for the removal of a swelling from the parotid gland under general anaesthetic, the plaintiff was taken to the recovery ward but sustained brain damage caused by hypoxia for a four-to five minute period, which the Anaesthesiologist had failed to prevent, it was held tobe negligent.Doctrine of res ipsa loquitur was not applied in a case where globe was perforated in the course of giving a local block prior to cataract surgery.Otherexamples where doctorine of res ipsa loquitor was not applied.In another case where a patient suffered permanent partial paralysis of legs following anaesthesia, the court said, & quot ...Medical science has not yet reached a stage where the law ought to presume that a patient must come out of an operation as well or better than he went into it. Patient developed meningitis after spinal anaesthetic. Court found that anaesthetic was not contaminated and the staff had taken the usual precautions to disinfect themselves before the operation, it held the hospital was responsible for some fault in sterilization procedure.
Law allows for three different types of damages. General damages are those such as pain and suffering which directly result from the injury. Special damages are those actual damages which are a consequence of the injury, such as medical expenses, lost income, funeral expenses etc. Punitive damages are intended to punish the physician for negligence, which was reckless, wanton, fraudulent, or wilful. Occasionally exemplary damages are awarded to make an example of the case to prevent any other physician from doing the same thing again. Plaintiff's attorneys generally charge a percentage of the damages, and will, therefore, seek to maximize the award given.
ERROR OF JUDGEMENT.
An error is not necessary a negligent act. Whether an error amounts to negligence or not depends upon the facts of the case.
If some thing happens which a reasonable prudent anaesthesiologist could not have foreseen, the anaesthesiologist will not be held negligent. Court of appeal in a case held that an act of a physician should be judged in the light of knowledge available at the time when the incidence took place. & quot The court must not look at the 1947 accident with 1954 spectacles“ Denning L.J. commented & quot it is so easy to be wise after the event and to condemn as negligence that which was only misadventure. We ought to always be on our guard against it, especially in cases against hospitals and doctors. reasonable man may foresee the possibility of many risk factors, but life would be almost impossible if he were to attempt to take precautions against every risk, which he can foresee. He takes precautions against risk which are reasonably likely to happen.
The phrase means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an & quot author of his own wrong& quot .If patient does not follow doctor's advice, he can not blame doctors for the consequences.Compensationnot granted as the patient himself contributed to the development of deformity by not keeping the plaster for the duration suggested by the surgeon.
Where a person agrees to run the risk of the act of another, he cannot recover any damages in respect of any injury caused by that act of that anotherperson.
Consumer Protection Act (CPA)
After introduction of Consumer Protection Act and bringing medical profession under it, there has been a sudden spurt of interest in the medical negligence matters. However it must be realized that CPA applies only the existing law and has not introduced any new law. Only difference is that since Consumer courts deal only with consumer complaints they can decide them faster. At the same time the access to consumer courts is inexpensive. Services rendered free are not covered by CPA. However if the payment is made by a third party on behalf of the patient (though patient himself does not pay for it), such services come under CPA. Anaesthesiologist even if not hired by the patient directly (i.e. hired by surgeon or nursing home) is liable to pay compensation under CPA .When fee was paid to the Hospital who in turn passed it on to the Surgeon on behalf of the patient, held that patient was a consumer vis-a-vis the hospital as well as the Surgeon. Even if the services of a doctor are not hired by the patient himself but by the hospital, the doctor comes under the purview of CPA.
FEE.
Question whether the fees charged by the doctor is excessive or reasonable does not constitute a consumer dispute.Patient cannot complain about the doctor's fee being excessive.
Right to life guaranteed under the fundamental rights in the Constitution of India is infringed by negligence of the Government doctors.Government or Private Hospitals: Prior to 1995, consumer courts in some cases held that the Government Hospitals are not covered by the Consumer Protections Act.Howeverthe Supreme Court in its judgment in IMA Vs. V. Shantha has clarified this point . In fact, CPA never differentiated between Government or private hospitals. It only said that CPA does not cover services provided free of charge. Since most of the Government hospitals provide services free of charge, they are not covered by the CPA. However, any hospital whether Government or private who collects charges from all or some of its patient is covered by the CPA after the Supreme Court Judgment. In these hospitals even the patients treated free of charge are entitled to move the Consumer Courtsfor compensation for any deficiency in service.
VEXATIOUS COMPLAINTS
Since the approach to the Consumer Courts does not cost anything to the complainant, there is a possibility of this being misused or used as a tool for harassment. Even the courts have accepted this possibility.
Though courts have awarded compensation to the respondents in cases of vexatious complaints ,the amount is not sufficient to act as deterrent against lodging of frivolous or vexatious complaints and harassment of suppliers of goods and providers of services. Possibility of filing false and vexatious complaints with an intention to harass or speculate has been accepted by the courts also.
PREVENTION
Codes of practice improve standards and it is for the benefit of the medical profession and the patients who place themselves in its hands that further steps are taken expeditiously to achieve this objective.
If the rising tide of medical litigation and professional indemnity premiums are to be checked it is necessary for individual Anaesthesiologist to know and to follow the minimum standards expected of them by the public,their profession and the law .The introduction of the ASA & quot Standards for Basic Intra-Operative Monitoring& quot was accompanied by a decrease in the number of anaesthesia-related liability claims. Improved monitoring, especially the greater use of pulse oxymetry and capnography, has undoubtedly contributed to the decrease in severe complications and the associated large awards.The key factors in the prevention of patient injury are vigilance, up-to-date knowledge, and adequate monitoring..
The practice of & quot defensive medicine& quot includes making of pre- and postoperative rounds, developing good patient relationships, and maintaining up-to-date habits.Threat of law suits against Anaesthesiologists seems to have declined somewhat in the USA and it can be accounted for in part by greater attention to monitoring and other standards of anaesthetic practice, including continuing medical education .n India too, slowly people are realizing that it is not easy to get compensation through court unless there is a strong evidence of negligence.
However, Indian Society of Anaesthesiologists must come out with protocols to be followed by its members in different clinical situations. Once this is done the courts will decide the issues of medical negligence by the fact whether the protocol was followed or not. Thus the anaesthesiologists following the protocols will not be held guilty of negligence. This will also improve the patient care and the outcome.
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