MEDICOLEGAL ASPECTS OF ANAESTHESIA AND DILEMMAS TO ANAESTHETIST

MEDICOLEGAL ASPECTS OF ANAESTHESIA

Dr Pramod Sarwa Dr M. Munjal Jeevan rekha critical care and trauma hospital Jaipur

INTRODUCTION 1987 confidential enquiry into perioperative deaths.Anaesthesia as sole cause of death 0.1%.Contributory factor 14% of cases.Practice of anaesthesia has many interfaces with law.State has the responsibility to protect the citizens.State has a role to regulate the behavior of physicians and hospitalsNew technologies may change the practice of anaesthesia practice.Anaesthesia practice is neither insulated nor immunized against medical jurisprudence.Nothing is static everything is changing.

LAW GOVERNING THE MEDICAL ISSUE

UNDERSTADING OF MEDICOLEGAL ASPECTS BOLAM TEST:A doctor is not negligent if he is acting in accordance with a practice accepted as PROPER by responsible body of medical men skilled in that art even though other doctors adapt a different practice.

The test is applied in diagnosis, to advice and to treat the patient.

UNDERSTADING OF MEDICOLEGAL ASPECTS (contd)Fatalities associated with anaesthesia, surgery and diagnosis can be categorized as:

1)Those directly caused by disease or injury for which anaesthesia was necessary.

2)Death caused by a disease or co morbid conditions other than the disease for which anaesthesia was given.

3)Surgical or diagnostic procedural mishap.

4)Anaesthesia mishaps a) over dosage b) technical failure c) equipment failure d) negligence

UNDERSTADING OF MEDICOLEGAL ASPECTS (contd)ERROR IS HUMAN Human error: a) Emergency setup b) Lack of sleep c) Lack of experience with technique and equipment d)lack of skilled assistant e) restricted access to the patient and f) Inadequate vigilance. COOPER, NEWBOVER AND KITZ described three categories: 1)Technical: deficiency of technical skills and poor design of equipment 2)Judgemental: bad decision due to poor training and anxiety 3) Monitoring and vigilance failure- failure to recognize the problem and delayed response

UNDERSTADING OF MEDICOLEGAL ASPECTS (contd)What is a contract? In medical practice the duty of care is based upon the contract, real or implied between the doctor and the patient.Working to and working for: The anaesthetists are called by the surgeons or nursing homes, the whole responsibility of the patient lies on them. When patient approaches the anaesthetist the responsibility lies on the anaesthetist.

UNDERSTADING OF MEDICOLEGAL ASPECTS (contd)It is the duty of the anaesthetist to attend the patient, assess him and optimise the patient with necessary investigations and treatment.

No guarantee should be given regarding awareness or morbidity.

Duty to provide: It is the duty of the government or hospital management to provide adequate and trained hands. They must provide all necessary latest functioning equipment. Trainee should be regularly supervised by the seniors.

UNDERSTADING OF MEDICOLEGAL ASPECTS (contd)Anesthetist must attend the patient a day before surgery, do PAC and everything must be documented.Duty to explain: Anaesthetist must explain clearly the procedure contemplated, type of anaesthesia other modalities of treatment and complications of procedure.Nothing should be decided against the patient will.

UNDERSTADING OF MEDICOLEGAL ASPECTS (contd)What is consent?

It is defined as voluntary agreement, compliance or permission for a specified act or purpose.

Indian contracts act section 13 states that two or more persons said to consent when they agree upon the same thing in the same sense

Consent must be intelligent and informed.

Without consent it amounts to assault and battery.

CONSENT (contd)Expressed consent may be written or verbal.Implied consent is for routine small procedures .Written and Informed consent1) All relevant information about ailment and treatment options outlined.2) Significant risks with the procedures explained.3) Must be told about all other options of treatment.4) Explained in local vernacular so that he can understand and consentTheraputic privilege:Doctor can with hold some information in the best interest of the patient.Extension doctrine:Sometimes doctor has to exceed the procedure than the consented because of practical problems and it is allowed by court.The consent given must be- voluntary and free. Consent obtained by fear, force and fraud is invalid.

CONSENT (contd)Consent may not be taken in1) Patient is in coma and needs emergency surgery.2) Child patient for operation- parents not available.3) When the case is referred by a court for medicolegal purposes Consent is taken from:1) Conscious, mentally sound adult.2) Child above 12years.3) The parent or guardian of child below 12 years.4) Permission of loco parentis: e.g.:-headmaster of a residential school.5) Jehovahs witness

UNDERSTADING OF MEDICOLEGAL ASPECTS DUTY TO TELL WHEN THINGS GO WRONG: DOT

Inform the patients attendants about thecomplication. Slowly build up the scene. Once they are mentally prepared, then we can announce the bad result.

Failure to fulfill the duty of care: If patient suffers damage during the procedure they may claim negligence on the part of the anaesthetist. Legal action may be initiated against the doctors concerned. Plaintiff(patient) must prove negligence on the part of the doctor.

Res ipsa loquitur The thing speaks for itself. Here the defendant physician must prove that the accident did not occur due to his negligence.

MAL PRACTICE ISSUESConsumer protection act 1986: It has presidential consent on 24th DEC 1986. Undergone two amendments 1) June 18th 1993 and August 27th 1993. The purpose of act is to protect the consumer and safeguard his rights.The services rendered by doctors has been brought under CPA in 1995. It has three tier system case must be filed within 2 years of accident.

MAL PRACTICE ISSUESPatients dont come to hospital to file a suit.If they are not happy or if there is any damage they may file a suit.Professional plaintiff is rare.Who are litigious?1) Currently involved in a law suit.2) Has been a plaintiff in previous case.3) Had an adverse outcome from previous case.4) A hostile patient to physician or hospital.5) Patient who takes copious notes or records in interview.6) Doctor shopping attitude.7) Degree of damage important.

Notification of Law suitAfter receiving a summon:-

-Notify the insurer, he will appoint the lawyer, take help of the lawyer to respond in specified time.-Dont discuss about the patient with anyone.-We can see the medical records- Dont alter it.-We can have a private counsel if there is a problem with the insurer to protect our assets.

DEPOSITION OF TESTIMONYIt is taken by the plaintiffs attorney from the defendant doctor.It should be in a convenient place, after good rest.Speak slowly, dont loose temper, be composed and neatly dressedSpeak yes or no to the questions.EXPERT WITNESS: Most of the jury are not well informed about some topics in medicine. They need an expert opinion in solving the case. He must be qualified and well experienced in practice of Anaesthesia.

ELEMENTS OF NEGLIGENCEDUTY OF CARE: every anaesthetist has a duty once he accepts the work. breach of duty may be due to acts of omission or acts of commission.Has got general duties and specific duties: Doctor is punishable under SEC 304-A IPC. 1) Physician failed to disclose inherent or potential dangers involved. 2) Unrevealed risks materialized caused damage. 3) A reasonable patient would have deferred operation with risks involved

ELEMENTS OF NEGLIGENCEStandard of care: must adhere to standard practice need not be aware of latest developments. must follow the protocols of the institution.Breach of duty: If there is an action of omission or commission Which is acceptable by minority of anaesthetists when doctor acts as a good Samaritan and helps an injured person he is immune to breach of duty. Causation: The link between breach and injury is called proximate injury. Two lists1) But for: The injuries would not have occurred but for the Anaesthetic procedure.2) Substitute factor: The procedure need not be only factor in causing injury

MAL PRACTICE ISSUESDamages Injuries sustained by the patient viewed generally as financial terms:1) General damages: like pain, suffering, limitation anxiety.2) Special damages: like medical expenses, future expenses, loss of wages and earning capacity and rehabilitation costs.

Punitive damages:In gross misconduct court may order exemplary or punitive damages. Insurance will not cover this. Closing a case:1) Outside court settlement.2) Court settlement if proved.

Asset protection:Insurance company escapes or partially pays our assets are at stake. Select a good company with good past record.

MEDICOLEGAL DILEMMASMost of the bad outcomes are not due to negligence, but due to expected risk of anaesthesia and surgery. Many patients have known and unknown physical problems.Many patients have unrealistic expectations regarding the outcome.If the bad outcome is due to negligence it must be informed to the family and an attempt must be made to settle the problem as early as possible.

WHAT to????? What not to?????

HOW to reveal?? What about my future????

WHERE to go???? WHOM to talk????

MEDICOLEGAL DILEMMASThe immediate response to bad outcome: If the critical event is for a short period and normalcy restored within few minutes surgery can be allowed to take place. Never rush to attendants to tell what happened without knowing the cause and dont tell the possibilities. Surgeon and anaesthetist must discuss about the cause and possible outcome and then inform the family members. if the critical event is serious and resuscitation took more than few minutes and the response is slow the surgical team should consult the family members. If surgery is not emergency postpone the case. If surgery is emergency it must be discussed in detail with the family members and proceed. Contact with family members.1)Maintain good contact with family members.2)Sudden bad news may generate anger in the family members. Allow the anger to be vented out. 3) Dont involve or accuse other physicians.

RISK MANAGEMENT STRATEGIES1) Improve doctor-patient relationship2) Adhere to standard care.3) Maintaining good records.4) Respond properly when there is an accident.5) Recognize malpractice prodromes.6) Avoid vicarious responsibility.

MEDICOLEGAL DILEMMASRecord keeping: Enter correct timings The surgical team must consult each other and record the events. If there is any difference of opinion if must be solved then and there but not in the court after few years. Nothing wrong in correcting an error The correct time, date and reasons for correction must be mentioned. The chart should not be altered. Hospital authorities must be notified about an error in the chart. There should not be any CHART WAR.

RISK MANAGEMENTCare of the patient after a bad outcome:Take care of the patient continuously Never hand over the patient to others and leave the scene.Involve consultants, take their opinion regarding management.Do necessary investigations to clinch the diagnosis.Shift the patient to a higher center if there is a necessity and follow the patient.Contact the family members at regular intervals and tell the progress of the patient. Try to gain the sympathy of the pts attendents.

RISK MANAGEMENTThe bad outcome is due to unknown cause or no negligence.1)Insurance company must be notified.2) Expert opinion must be sought in the court to clarify the causation.3) The plaintiff must prove the negligence on the part of the doctor. (It is not so easy).

RISK MANAGEMENTPREPERATION FOR DEPOSITION;-The plaintiffs attorney will take the deposition .The place must be a convenient one.The physician must be composed. Should not loose temper.Answer to the questions by yes or no.No explanations.

The deposition must address four major issues.1)The anaesthetist must know the events that led to the bad outcome. 2) He must have concept of what happened and it must be supported by literature.3) Never try to flatter the plaintiffs lawyer.4) Answer briefly and correctly.

RISK MANAGEMENTNever loose the heart . Hope for the best.Take the opinion of the seniors regarding the case and the legalproblems.Go through the literature to have support with your views.Have a separate lawyer if you are not happy with the lawyer appointed by insurance company.

Support by the associations and colleagues:It is the duty of the association to come forward and help his colleague morally, physically and financially.One should not speak bad about the incident and the doctor in the general public.Try to have a corpus fund to help the defendant doctor from medico legal suits and maintenance of his family during crisis

RISK MANAGEMENTStrategies to reduce bad outcomes: CMES: Have regular CMES, Share the knowledge Frame guide lines and protocols for various procedures.Believe your monitors: Dont find fault with the monitors Try to find something wrong with the patient. USE multiple monitors for cross checkingLab values and clinical condition must correlate ISA & ASA guidelines:The associations will be providing the members materials which contains standards, guide lines and malpractice claims. Anaesthesiologist must be thorough with this information and follow

RISK MANAGEMENTDealing with angry patient and family members: Most of the patients are unhappy and angry over the medical care.We dont have much time to spend with them because of emergency situation. Dont ignore them. Try to hear their problems and assure them the possible solutions.

CONCLUSIONSAssess , optimize and assure the patient before taking up for surgery.Take valid and informed consent Keep the things which are necessary during and after the operation.Check the equipment and monitors.Label all the drugsSupervise the juniorsAvoid critical incidentsIf there is bad outcome contact the family members and explainTake opinion of consultantsDo all the necessary investigations.Dont leave the patient unattendedTake to a higher center if necessaryHave a valid medical insurance coverage.Try to avoid physical assaults by the angry patients attendants.