Gupta & Associates

16/11/2023

17th November is celebrated as National Epilepsy Day . . .

23/05/2023

MEDICO LEGAL TIP OF THE DAY

Taking consent in local language, ‘strong evidence of surgeon’s act’

The patient was diagnosed with large stones in left kidney. Surgery was performed and the stones were removed. It was discovered during the procedure that the kidney had collapsed into cystic structure.

The non-functioning kidney had to be removed.

Patient sued the surgeon claiming that his kidney was ‘fraudulently’ removed. The procedure was illegal as the consent was taken from his illiterate wife and that too on a pre-printed consent form which did not bear name of doctor or the patient.

The National Consumer Commission dismissed the allegations, and made following observations :

“Approximately 1.3 to 1.4 litres of thick yellow white purulent fluid was drained and two large stones were removed. Kidney was collapsed into large thin-walled cystic structure with total thinning of the cortex. The OT notes also revealed that collected pus was shown to patient's attendant, and specimen of kidney along with two large stones were given to patient's attendant for histopathological examination”.

“Furthermore, the consent form filed by the patient bears signature of his wife in Hindi. She also wrote in Hindi that she has consented for removal of damaged kidney. It is pertinent to note that to misguide this Commission, the patient intelligently has filed only single page of consent”.

“The surgeon, in patient’s interest, took the conscious decision to remove defective non-functional kidney. The OT notes are valid and strong evidence surgeon’s act. We do not find any negligence or failure of duty of care from him”.

Source: Order pronounced by National Consumer Disputes Redressal Commission on 22nd Dec 2022.

Courtesy : Institute of Medicine & Law.

Gupta & Associates
Medico Legal Consultants
Lucknow (India)
+91-9935044898 / 8318973785
Email : [email protected]

13/05/2023

MEDICO LEGAL TIP OF THE DAY

The patient was under obstetrician’s regular antenatal (ANC) care. Over a period of over six months or so, the doctor had performed USG seven times. There were no abnormal findings in any USG.

The patient delivered a baby girl, but unfortunately, she was born with congenital abdominal wall defect. The new-born was referred to another hospital. She was taken to yet another hospital from the referred hospital where she died after a day.

The parents were heartbroken and devasted by their loss. They sued the obstetrician and alleged that she was neither qualified to perform USG nor consulted a radiologist who could have detected the congenital anomaly on time.

The obstetrician vehemently opposed the allegation, stating in defence that the foetus’ position was breech and hence it was very difficult to detect its front / abdominal position. It was further stated that due to USG’s technical limitations, congenital anomalies can’t be detected every time because of gestation period, foetal position, quantity of liquor, etc. The subtle defect may not be seen in all scans.

The Commission did not agree with doctor’s defence, while making following observations:

“It is evident from the record that the obstetrician performed seven USGs during ANC follow-ups including target scan (level II) at 18 weeks and 1 day. It was breach presentation, but in our view, anterior abdominal wall defect during the target scan shall not be missed as it could be easily visible”.

“The ultrasound scan is done every four weeks to measure the foetal biometry. It is to monitor foetal growth and amniotic fluid. It is best to monitor growth through estimation of foetal weight by the Siemer formula, which uses biparietal diameter, occipitofrontal diameter and femur length, rather than formulas using abdominal circumference. Thus, the detection of congenital anomalies needs expertise, training and competency in radiodiagnosis”.

“No doubt the obstetrician possesses thirty years of experience in obstetrics, the question before us is if she was competent enough or failed in her duty of care to report the target scan – (level – II USG) which detects development and position of the foetal organs. The abdominal wall defect could easily be detected irrespective of breach presentation. In our view, any radiologist of ordinary prudence could have detected such abnormality and it could have averted the patient’s sufferings. She could have aborted the baby within twenty weeks of pregnancy”.

“Based on the discussion above, it was neither a bona fide mistake nor an error of judgment by the obstetrician, but it was failure of duty of care during the target scan (level-II)”.

The doctor was held negligent for aforementioned reasons, and ordered to pay compensation.

Source : Order pronounced by NCDRC on 9th January, 2023.

Courtesy : Institute of Medicine & Law.

Gupta & Associates
Medico Legal Consultants
Lucknow (India)
+91-9935044898/8318973785
Email : [email protected]

09/05/2023

MEDICO LEGAL TIP OF THE DAY

"PHYSICIAN" WINS LEGAL BATTLE AGAINST "SURGEON"

A physician was diagnosed with anterior mediastinal tumor. The surgeon performed median sternotomy and thymectomy. During the procedure it was discovered that a big mass extended up to the arch of aorta, completely engulfing the left phrenic nerve.

The surgeon had to make a difficult decision of resecting the left phrenic nerve.

The operation was successful but the physician (patient) lost ability to speak due to resection of the nerve – he suffered left cord palsy. Thereafter he consulted a Japanese surgeon who performed another procedure that helped in partial recovery.

The physician sued the surgeon and made pointed allegation that he ought to have sent the mass for HPE and an informed consent should have been obtained.

Citing medical literature, the Commission observed that to completely excise the tumor, surgeon had to sacrifice phrenic nerve as leaving a part of tumor could have endangered patient's life.

The Commission also observed a glaring lapse on part of the surgeon, as it stated the following :

“It is pertinent to note that the patient was a doctor himself, but he was not informed about the post-operative complications of nerve injury, which is likely to cause loss of voice and restricted diaphragm movements. Moreover, in our view, the operative procedure was an accepted reasonable standard of practice, but not having a proper informed consent amounts to negligence per se”.

The surgeon was ordered to pay a sizeable compensation to the physician.

Source : Order pronounced by National Consumer Disputes Redressal Commission on 1st December, 2022.

Courtesy : Institute of Medicine & Law.

Neeraj Gupta
Medico Legal Consultant
Lucknow (India)
Phone : +91-9935044898 / 8318973785
Email : [email protected]

04/05/2023

Dear Friends,
I will be available for 1-2-1 consultation in Delhi on Sunday, 7th May 2023 at Hotel Lalit, Barakhamba Road, New Delhi from 16:00 to 20:00 hours.

If anyone intends to consult, please get in touch.

T & C applied

Gupta & Associates
Medico Legal Consultants
Lucknow (India)
Phone : +91-9935044898
Email : [email protected]

28/04/2023

MEDICO LEGAL TIP OF DAY

Courtesy : Institute of Medicine & Law

Gupta & Associates
Medico Legal Consultants
Lucknow (India)
Phone : +91-9935044898
Email : [email protected]

18/04/2023

MEDICO LEGAL TIP OF THE DAY

ISSUING A "FIT-TO-FLY" CERTIFICATE ALMOST CRASHES DOCTOR'S REPUTATION

A senior NRI scientist from California, visited India for a long-awaited family reunion. He experienced blurred vision in the left eye during his stay and thus consulted an ophthalmologist. The doctor diagnosed retinal detachment and advised vitrectomy.

The procedure was performed with proper consent, and the post operative period was uneventful. Two weeks thereafter, the patient flew back to California after obtaining a fit-to-fly certificate from doctor and that’s when the troubles begun.

The patient experienced pain and extreme discomfort in the operated eye. He rushed to a retina consultant as soon as the plane landed in California.

The patient had suffered central retinal artery occlusion due to increased intraocular pressure (IOP) while flying, and underwent scleral buckling procedure.

The scientist in patient formulated a heavy set of reasons to sue the ophthalmologist, and claimed a whopping compensation of Rs 8 crores !

His defining equation against the doctor though, was issuance of fit-to-fly certificate in spite of the fact that flying could cause IOP.

He also presented emails to prove that the doctor was negligent.

Surprisingly, in one of the emails, the doctor had offered to refund expenses incurred for the procedure.

The doctor, of course, refuted these allegations. It was stated that the patient was given a fit-to-fly certificate with an advice to consult a retina specialist before flying – an advice which he did not follow. It was further stated that the refund offered was a goodwill gesture as the patient was referred to him by a senior professor.

This case took about three to four years to reach the National Consumer Commission.

The Commission perused medical records of the clinic in California and observed that patient’s vision was 20/20 in both eyes, which was considered perfect vision. The Commission further observed that the patient had suppressed this fact and drew an adverse inference against him.

Finally, it was observed that although the doctor had agreed to pay compensation in email exchanges, it neither proved his negligence nor justified the compensation demand of eight crore rupees.

The patient’s case was dismissed.

There is an important learning meant for all doctors from this case, "Do not give anything in writing under duress. Seek legal remedy immediately".

Source : Order pronounced by National Consumer Disputes Redressal Commission on 5th December, 2022.

Courtesy : Institute of Medicine & Law.

Gupta & Associates
Medico Legal Consultants
Lucknow (India)
Phone : +91-9935044898
Email : [email protected]

15/04/2023

MEDICO LEGAL TIP OF THE DAY

Negligence in treating cancer patient :

Woodlands Hospital, Oncologist, Anaesthetist slapped Rs 60 lakhs compensation https://medicaldialogues.in/news/health/medico-legal/negligence-in-treating-cancer-patient-woodlands-hospital-oncologist-anaesthetist-slapped-rs-60-lakh-compensation-109950

Gupta & Associates
Medico Legal Consultants
Lucknow (India)
Phone : +91-9935044898
Email : [email protected]

10/04/2023

MEDICO LEGAL TIP OF THE DAY

Mumbai doctor, hospital asked to pay kin over Rs 12 lakh for medical negligence

Read more at:

Fifteen years after a 66-year-old woman died due to excessive use of anesthetics following a surgery for a fractured forearm, Parel Hospital and an orthopaedic surgeon will have to pay the family over Rs 12 lakh in compensation along with interest.

06/04/2023

MEDICO LEGAL TIP OF THE DAY

Venturing beyond expertise, a very dangerous affair !

Legally speaking, a doctor is not allowed to treat a patient when the treatment is beyond his / her expertise. Even in any case of emergency, the doctor is supposed to provide first aid and refer the patient to relevant specialist.

The patient was accidently hit by a stone. It badly injured his left knee. He approached his general physician (GP); an X-Ray was taken. The doctor started anti-tubercular treatment (ATT) and also performed biopsy.

The patient continued to experience unbearable pain despite the treatment. He approached a national hospital and met an orthopaedic surgeon. To his utter surprise, the patient was diagnosed with "telangiectatic osteosarcoma". His left leg had to be amputated.

Losing his leg shook the patient to the core. He sued the GP and alleged that wrong diagnosis and delayed treatment for cancer led to amputation of leg.

The GP stated in defence that patient’s blood ESR and Mantoux test reported positive for TB, hence ATT was started. He further stated that the biopsy sample drawn unfortunately contained only muscle tissues and not bony tissues, hence the diagnosis of cancer could have been missed. It was an honest mistake.

The Commission rejected GP’s defence, as it observed the following :

“From medical record, it is evident the doctor is a general physician, not an orthopaedic surgeon. He was not competent to diagnose and treat either osteosarcoma or tuberculosis of bone. He ventured to do needle biopsy which was not his domain. He should have referred the patient either to a surgical pathologist or a surgeon / orthopaedician to obtain biopsy”.

“The GP’s duty was limited to primary treatment or proper referral, but he started ATT and same was stopped within few days and again restarted without any justification”.

The Commission held the GP negligent. His defence that it was a bona fide mistake was rejected by the court.

Source : Order pronounced by National Consumer Disputes Redressal Commission on 29th September, 2022.

Courtesy : Institute of Medicine & Law

Gupta & Associates
Medico Legal Consultants
Lucknow (India)
Phone : +91-9935044898
Email : [email protected]

25/03/2023

MEDICO LEGAL TIP OF THE DAY

Fabricated records to save their skin !

The State Consumer Commission in this case reversed lower / trial court’s order, observing that the doctor and nursing home were negligent in treating a pregnant patient.

The patient delivered a healthy baby boy. However, soon thereafter the child developed complications and died after twenty-two days.

Heartbroken at their loss, parents sued the nursing home and gynaecologist. It was alleged that the baby was a jubilant boy weighing 2.5 kgs at birth, however, sheer negligence on part of the nursing home and doctor caused his unfortunate death.

It was further alleged that when the child was re-admitted, the doctor did little to diagnose the reason behind his weaning appetite. Besides administering saline, no tests were conducted to ascertain the root problem.

The gynaecologist and nursing home stated in defence that upon readmission, the child was found to be grossly under nourished and was reluctant to feed. His skin appeared to be blackish, blood samples taken reported symptoms of septicaemia.

The Commission carefully went through the medical records and observed that:

“The doctor and nursing home have stated that they had taken baby’s blood samples and subsequently he was diagnosed was septicaemia. But as per the bill given by the nursing home, it does not reflect charges for blood tests. Hence it clearly indicates that they never did any blood tests. The said reports are absolutely false and self-manufactured to save their skins”.

“The nursing home has provided a hand written estimate bill amounting to thirteen hundred rupees. From the perusal of records, it appears that several medicines were administered to the baby which would definitely cost more. Hence it is crystal clear that no such medicines were administered. Rather the records were self-manufactured by the nursing home when the patient requested for all medical records”.

Observing from evidence that nothing was as it seemed, the Commission sent the case back to lower court with an order to seek an expert opinion in the matter.

Source : Order pronounced by West Bengal State Consumer Disputes Redressal Commission.

Courtesy : Institute of Medicine and Law

Gupta & Associates
Medico Legal Consultants
Lucknow (India)
Phone : +91-9935044898
Email : [email protected]

22/02/2023

MEDICO LEGAL TIP OF THE DAY

Difference in case papers and typed report – an attempt to save the doctor ?

The patient suffered from TB and thyroid and was subsequently diagnosed with typhoid. She was taken to a hospital.

The doctor at this hospital performed ascitic fluid test to rule out cancer, although admittedly by obtaining oral consent only. Subsequently, the doctor undertook laparoscopy procedure for performing omental biopsy.

The patient developed severe complications due to anaesthesia and was shifted to another hospital where she succumbed after two days.

Her husband was furious at the doctor. He sued him and alleged that no consent was obtained before performing ascitic fluid test. He further alleged that even though there was no need to perform biopsy, the doctor simply went ahead with it.

CT biopsy, a less invasive and safer option was available but it was ignored. The doctor must pay for his folly, pleaded patient’s husband.

The doctor denied the allegations and stated that ascitic fluid test was performed after explaining every risk and benefit, and an oral consent was obtained from patient’s husband. Moreover, several other tests led to suspicion of cancer which then necessitated ascitic fluid test.

The patient was referred to a haematologist who, after going through the tests, advised biopsy to rule out ovarian cancer.

Citing medical literature, the doctor finally submitted that CT guided biopsy was disadvantageous for the patient as it may not have been able to remove enough tissues for the analysis.

The Commission perused medical records, and at the outset observed that the doctor was negligent for not obtaining a proper, informed and written consent from patient or her husband.

The Commission found glaring lapses on part of the doctor in treatment record, and observed :

“In brevity, the patient was suffering from Koch’s abdomen which was a chronic condition and above that she suffered from acute typhoid fever which caused small bowel perforation which was sealed in third week of illness. That is why there was plenty of slough and small bowel adhesions which required urgent exploratory laparotomy for peritoneal lavage searching perforation and adhesiolysis. It was omitted by the doctor which was negligence on his part."

“Further it is noted that the anaesthesia related complications escalated the situation and patient had to be transferred to the other hospital. Post-operative investigation showed positive CRP, positive procalcitonin which were not done pre-operatively. Case papers of the second hospital shows that there was intra peritoneal haematoma and typed report says there was no peritoneal hematoma. It arouses doubt about the authenticity of report. That may be an attempt to save the doctor. It shows that the case papers are fabricated following the complication of surgery”.

The doctor and his team were held negligent for these lapses. They were ordered to collectively pay ₹ 8.5 lakh as compensation.

Source : Order pronounced by Gujarat State Consumer Disputes Redressal Commission on 7 th September, 2022.

Courtesy : Institute of Medicine & Law

Gupta & Associates
Medico Legal Consultants
Lucknow (India)
Phone : +91-9935044898
Email : [email protected]