Delhi Journal of Ophthalmology

Legal Liabilities and Duties of a Doctor: Part 2

1Kirti Singh, 1Bhumika Sharma, 2Arshi Singh, 3Anju Lal 
1Guru Nanak Eye Centre, Maulana Azad Medical College, New Delhi, India
2LVPEI, Bhubaneshwar, 3Delhi High Court, New Delhi 

Corresponding Author:

Kirti Singh 
Professor, 
Guru Nanak Eye Centre, 
Maulana Azad Medical College, New Delhi 
Email id: mail4kirti@gmail.com

Published Online: 25-OCT-2017

DOI:http://dx.doi.org/10.7869/djo.314

Abstract

Keywords :

Introduction

“Healer safeguard thyself lest you need healing for the anguish caused by deeds done by your hands in ignorance.” This epitomizes what our medical fraternity need to practice, vigilance and awareness of legal repercussions for acts committed in good faith sans knowledge of legal parlance and legal liabilities. This article is second in the series of imparting knowledge in situations which could jeopardize the safety of ophthalmologist. One of the commonest scenarios an ophthalmic surgeon needs to attend is the medicolegal case. Not only are such cases related to trauma, crime, violence leading to significant bodily and ocular harm, they usually portend sessions in courtroom or interrogation by lawyers. Thus it is imperative that we have a working knowledge of how to handle such cases to save the patient from harm at the same time save our own self from litigation or being caught on the wrong foot.

Medicolegal cases (MLC)

Medicolegal case is “a case of injury/illness where the attending doctor, after eliciting history and examining the patient, thinks that some investigation by law enforcement agencies is essential to establish and fix responsibility for the case in accordance with the law of the land.”1,2 All MLC records in addition to examination and treatment details should additionally have the following maintained in safe custody:

Police report of MLC
Identification marks of the patient (details of minimum 2)
Details of the accompanying constable
Date, time, finding and description of injury (accurate measurements), whether simple, grievous or dangerous.
Record of investigations- X-ray, USG, CT scan and MRI
Certificate should be issued to police or court on demand. In case of grievous injury, it can be issued even without demand, to police.
The prototype MLC sheet has all these details which need to be filled out. (Figure 1)
The medical practitioner should fill a ‘wound certificate’, taking of ‘written consent’ and ‘if the matter is intimated to police’, to fulfill his medicolegal duties. Each page of MLC report should bear signature of doctor and patient, or thumb impression of the latter. 
The report must be written meticulously, expending thought on language and content. It should demonstrate competence since these reports involve litigation, insurance claims, medical negligence claims and worker compensation issues.2



What is Grievous injury ?

Grievous hurt has been defined in Section 320 of Indian Penal Code, 1860 (IPC). The nature/extent of hurt which is relevant as far as ophthalmology is concerned are:

a) Permanent privation (loss) of the sight of either eye.
b) Permanent disfiguration of the head or face. 
c) Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain, or unable to follow his ordinary pursuits (daily routine).3,4 

Some Medicolegal Situations
A. Ocular Trauma
A detailed history with name of informant and witnesses, if any (with their relationship). Examination record must mention type, location, direction, dimensions, depth and presence of foreign bodies in the wound.
The sequence of examination and management to be followed
is as follows:
- Record vision of each eye separately after covering the other eye with your own palm or an opaque object eg thick sheet. Vision testing must be done by the doctor himself or under her/ his supervision and presence, since responsibility of a MLC exam rests with the doctor and not the nursing staff. As vision loss / diminution is critical for lodging any claim/ compensation, malingering or mendacity can confound the picture. Vision testing should thus be done keeping this in mind and complete occlusion of other eye must be ensured. 
- Any life threatening injuries like hemorrhage, respiratory or cardiovascular distress must be ruled out. The CAB (cardiovascular, airway, breathing) of emergency care must be adhered to, as in any case of trauma or injury. - Since ocular damage often co exists with injury to adjacent structures like brain, nasal passage and ear, cognizance needs to be taken whether a neurological deficit is present, whether occult post nasal bleed/ damage is present, the latter may asphyxiate the patient while examination is being conducted. - This is followed by thorough history taking which should include work at time of injury, site of injury, foreign body entry and onset of vision loss. 
- A mention must be made of prior ocular status and protective eyewear use (if any). This is important in injuries sustained during working or in factories. Occupational Safety and Health Administration (OSHA) guidelines make protective eyewear compulsory in work place hazardous to ocular health.5 Studies analyzing ocular trauma consistently reveals lack of this safety precaution as a key reason for ocular damage.6,7 Lack of safety eye- wear can be attributed to employer negligence or employee laissez - faire attitude, and would become a matter of debate during legal jurisprudence. It is thus imperative on part of the doctor to mention presence or lack of this wear during his MLC report. 
- Additional aspects to be asked and marked in MLC report if positive are: systemic conditions of bleeding diathesis, diabetes, pregnancy. 
- Use of intoxicants, prior first aid care also need to be mentioned.
- This is followed by detailed inspection and palpation of ocular margins, adnexa and facial structures. 
- Corneal status, lens status and retinal status need to be mentioned at point of first contact. Since cataract especially rosette type supervenes rapidly precluding fundus view, the findings of first exam need to be recorded by the examining doctor in the MLC report. 
- This is the standard operating protocol for injury cases including MLC except cases of chemical injury eg alkali burn. In this scenario. a thorough wash with normal saline, ringer and even fresh water ( if nothing else is available) is done for 30 minutes is done immediately upon patient giving history of chemical burn , followed by detailed history, vision testing and ocular exam. 
- The injury needs to be labelled under Ocular Trauma Classification OTC group or Birmingham Eye Trauma Terminology, with the former being more commonly used. Such a categorization at time of first examination helps doctor in counselling patient and in safeguarding himself by predicting functional outcome of a serious eye injury with reasonable certainty.8 
- The OTC classification categorizes injury as: Open or Closed globe, subsequently in each category it refines it by type, grade (depending on visual acuity), pupil involvement (present/ absent) and zone (extent) of involvement.

Open globe 
Type: A. Rupture B. Penetrating C. IOFB D. Perforating E.  Mixed
Grade: A. 20/40 B. 20/50 to 20/100 C. 19/100 to 5/200 D. 4/200 to light perception
E. No light perception 
Pupil: A. Positive, relative APD in injured eye B. Negative, relative APD in injured eye

Zone: 
I - confined to cornea and limbus
II - injury involves full thickness defects whose anterior aspect is till 5mm posterior to limbus 
III - injury involves full thickness defects whose anterior aspect is 5mm posterior to limbus 

The most posterior defect, usually exit site is used to judge zone of involvement. .

Closed globe 
Type: A. Contusion B. Lamellar laceration C. Superficial foreign body D. Mixed
Grade: A to E, similar to open globe 
Pupil: A, B similar to open globe 

Zone (according to posterior most tissue displaying evidence of structural alteration)
I External: injury involves outermost layers - conjunctiva, sclera, or cornea 
II Anterior segment - injury to anterior chamber including lens & zonules 
III Posterior segment - injury to internal structures posterior to posterior lens capsule, including vitreous, retina, optic nerve, choroid, and ciliary body.

- Whenever required radiological imaging should be sought eg in penetrating injury to visualize foreign body presence and location, and suspected orbit fractures. Often the patient may refuse further treatment especially on hearing prognosis or may need referral to a higher centre. In these scenarios, a copy of emergency card with signature of patient/ attendant, detailing examination and emergency measures conducted should be kept with the doctor for future use, as a safeguard.
- Wherever possible photographs or coloured sketches of injury are taken or drawn.
- An ‘Accident cum wound certificate’ needs to be filled out and prepared in duplicate by taking a carbon /photocopy. Original of this wound certificate needs to be submitted to the police as a confidential report and receipt of same needs to be taken. The duplicate (photocopy/ carbon copy) should be kept safely. Maintaining a MLC register separately and documenting each case as it comes is very useful. 
- Investigations eg X ray should be kept with treating doctor in safe custody and only given to accompanying police personnel, after getting signatures of the latter.
Trauma by assault: History of assault needs to be documented by writing “Alleged history of assault by …..at……”. In cases of police referral details of injuries in detail, are to be written in a separate register called as MLC register. The nature of injury – simple/grievous and amount of function loss would need to be mentioned. In cases of suspect fracture – imaging (X-ray/ CT/MRI) is advised and record of same is kept for 3 years. Certificate of injury can be given to patient on demand, in simple injury but in case of grievous injuries, the certificate is to be handed over to the police or court.3 Trauma sustained at workplace: Injury sustained by worker in workplace needs to be confirmed. Prior ocular status and nature of protective wear, if any, evidence of intoxication at the time of injury should be documented. A certificate to worker, employer, insurance company or Labor Court, on demand, regarding function loss of function can be issued.

B. Table death 
In the rare event of death on table, an FIR can be registered under Section 304-A of IPC, which is a bailable offence, with bail being granted in the police station itself. In such an adversity, it is advisable to get a postmortem done to ascertain the actual cause of death.

C. Organ donation
This is covered under Transplantation of human organs act 1994 and Bombay corneal grafting act 1957.9 The person is lawful possession of the body after patients’ death can authorize removal of eyes provided it is performed under supervision of registered medical practitioner working for an approved institution. 

Legal Notice: 
This is a communication of facts and claims made by any person through his lawyer /advocate. A refusal to accept the notice and failure to suitably reply the same, can be interpreted as acceptance of claim made therein. A notice must be replied after due deliberation with each allegation being refuted or answered separately. Proper usage of technical knowledge and words in the reply would require legal help.

Summons: 
These are issued by Court commanding a person’s presence, at a given time and date in court, “in person” or represented by an advocate. Summons are served by post, process server of court and other modes as court deems fit and appropriate. Refusal to accept summons can result in issuance of warrant (bailable as well as non-bailable) by the court.

Warrant:
Warrants are normally issued by a criminal court and are served through the concerned Police Station. It can be bailable or non-bailable. 
1) Bailable warrant: In this bail is granted by concerned police station on submission of a bail bond and a surety is required to ensure that accused shall remain present in court or police station on each and every date. In case of non- arrangement of a surety, accused can be arrested and kept in lock-up, until bail is granted or accused is produced before Magistrate/Court, which is within 24 hours from time of arrest.
2) Non bailable warrant: In this situation once the police arrest the person, bail can be granted only by a Magistrate/Court. The police would keep accused in lock up and produce him in court within 24 hours from time of arrest.

Police Statement & procedures:
Police statement implies that police comes to hospital to undertake an inquiry or take a statement, which should not be signed. Police can call any health care worker to police station for enquiry and can take statement, however a lady cannot be called to police station after 6 PM for any inquiry, or for recording statement. On police asking for documents for inspection, doctor needs to show them the same. Such documents can be seized by police, if offence has been registered. If documents are seized, seizure panchnama has to be prepared and police must provide copy of panchnama to the doctor. Ensure that Xerox copies of seized documents are retained by doctor/ hospital, for future recourse.

When to inform Police?
It is doctor’s duty to inform police regarding patients presenting with:

Wounded cases, irrespective of manner and nature of injury (treating and saving the life being the priority). Police should be informed but the treatment delivery need not to be delayed for the same. That can be safely done once the critical phase is handled. 
History of criminal assault of grievous nature. 
Doubt regarding abuse eg suspect battered baby syndrome, acid attack, grievous injury. In such situations a dilated retinal exam should be undertaken and team including a pediatrician should be involved. Always try to document the hemorrhages by fundus photography, short of which detailed drawing.10,11 
Recording of dying deposition before a magistrate 

Liabilities of legal heirs of a deceased Doctor

In case the doctor against whom the act of negligence is alleged, dies before passing of final judgement, his legal heirs cannot be impleaded on cause of action and right to sue, is no more is valid, with claim for damage being null and void. However in case the trial has completed and a judgement given against the said deceased, the amount payable can be recovered from estate of the deceased and legal representatives can be brought on record.

Indemnity Insurance

At times, even with the best possible care, a medical mishap may not be averted. With ever increasing consumer awareness and aggression, it may take a heavy toll of one’s financial resources. It is at such times that the insurance company would bear such liabilities, provided the terms and conditions of the contract are fulfilled and the policy is in full force and effect. To guard against having to give compensation in events of actual negligence, it is advisable to invest in mal- practice insurance cover. A glance at the negligence claims as per National Health services (NHS) registry of England reveals an interesting facet of differing litigation profiles of ophthalmic sub-specialties. As expected high volume cataract surgery attracted the maximal litigations, but the highest damages were paid by pediatric ophthalmologists and maximal claims resulting in payment of damage were in field of glaucoma.12 This insight could dictate indemnity premiums tailored to subspecialty practice. 

Measures to ensure safety of ophthalmologist:
(Precautions need to be taken prior to operation/procedure)
A female patient should always be examined in presence of a female attendant. 
Give realistic expectations to patient.13 
Operation theatre should have oxygen cylinder. (The evidence of oxygen being present is receipt of recent filling of oxygen cylinder). 
Suction machine, emergency drugs as per standard list (with a chart attached about the essential drugs in the tray, their concentration and expiry date) should be clearly displayed and visible. 
Written informed, valid consent in patient’s language, needs to be taken prior to procedure.
If patient transfer is required, call ambulance and record this effort. National helpline numbers - 102/ 108 can be called and an ambulance requested. Calls made on this numbers are recorded and can be used in a court of law. The case of Grewal Hospital & Anr. v/s Sher Singh ( 8 MLCD a19: j 37 ) February 2015 shows that the doctor was blamed not for not managing a critical patient beyond his capability but for failure to provide evidence that an ambulance had been called for. 
In case of difficult cases, opinions from peer consultants should be taken and recorded in form of notes or emails. Preserved emails detailing consults were accepted by Indian courts in. Babu Lal Gupta vs Navjyoti Eye Centre & Ors (7MLCD al. j1 - January 2014).
Taking feedback about services from attendant in a hospital register is a useful practice which helps in certain situations where the patient changes his mind or is coerced to do so to extort monetary compensation from the treating physician. As in B Gopal Reddy v/s Bollneni Eye hospital and Research Centre & Ors (6MLCD al ; j1- January 2013) 
Complete name of patient sans abbreviation should be written on every medical record and register.
Ensure reasonable skill and care (or in other words follow standard operating protocol). In case of complications, again follow standard accepted protocols, document, refer if required and inform the patient. Do a diligent follow up and document findings daily. Maintain courtesy, empathy and respect for patient. 
Sensitize staff for triaging and effective counselling. 
Update records regularly and keep them in safe custody. 
Avoid criticizing colleague doctors, consideration of collegiality is a part of ethical code of conduct.14

Conclusion

Knowledge is power and knowledge about legal duties, liabilities and rights is the only way to safeguard ourselves during current climes of strife and litigation. In repetition, meticulous record keeping is the one talisman which will help guard against spurious and malafide complaints, as recorded facts speak bear witness in a court of law. Following standard procedural examination/ management protocols in medico legal situations go a long way in securing the ophthalmologist against malpractice. 

References
  1. Lyon IB, Dogra TD, Rudra A. Lyon’s Medical Jurisprudence and Toxicology. 11th ed, Delhi Law House; N. Delhi 2005. p. 36
  2. Tripathy K, Chawla R, Venkatesh P, Vohra R and Sharma YR. Clinical profile of medicolegal cases presenting to the eye casualty in a tertiary care centre in India. Indian J Ophthalmol 2016; 64:422–6.
  3. Deshpande AA. Legal aspects in ophthalmology. AIOS CME Series 27. N Delhi. All India Ophthalmic Sciences 2013.
  4. Sharma D, Mathur PN, Saini OP. Case Report. Ocular Injury & its medico legal implications. J Indian Acad Forensic Med. 30:227-229.
  5. Eye Injuries at Work - American Academy of Ophthalmology https://www.aao.org/eye-health/tips-prevention/injuries-work updated 2016 Feb 
  6. Shashikala P, Sadiqulla M, Shivakumar D, Prakash KH. Profile of ocular trauma in industries-related hospital. Indian J Occup Environ Med 2013; 17:66-70
  7. Ngondi CE, Chastonay P, Dosso A. [Preventing occupational eye trauma (Geneva, Switzerland)]. J Fr Ophtalmol 2010; 33:44-9.
  8. Kuhn F, Maisiak R, Mann L, Mester V, Morris R, Witherspoon CD. The Ocular Trauma Score (OTS). Ophthalmol Clin North Am 2002; 15:163-5. 
  9. Chaudhari Z and Kulkarni A N. Ethical and medicolegal aspects in ophthalmology. In Postgraduate ophthalmology Eds Chaudhari Z, Vanathi M Jaypee brothers medical publishers New Delhi, 2012 pg 2249 - 2265
  10. Vansweevelt T Liabilities of a physician confronted with child abuse. Eur J Health Law 2013; 20:271-88.
  11. Vincent AL, Kelly P. Retinal haemorrhages in inflicted traumatic brain injury: the ophthalmologist in court. Clin Exp Ophthalmol 2010; 38:521-32.
  12. Ali N . A decade of clinical negligence in ophthalmology. BMC Ophthalmol 2007; 7:20.
  13. Rangnath M, Venkatachallaiah MN. Supreme court of India. AS Mittal & Others versus state of Uttar Pradesh and others on 12 May, 1989 Equivalent citations: 1989 AIR 1570, 1989 SCR (3) 241.
  14. Patnaik AK, Mathiharan K. In Modi’s Medical Jurisprudence. A toxicology 23rd ed. Gurgaon, Lexis Nexis 2006 pg 37.

CITE THIS ARTICLE

Kirti Singh, Bhumika Sharma, Arshi Singh, Anju LalLegal Liabilities and Duties of a Doctor: Part 2.DJO 2017;28:48-51

CITE THIS URL

Kirti Singh, Bhumika Sharma, Arshi Singh, Anju LalLegal Liabilities and Duties of a Doctor: Part 2.DJO [serial online] 2017[cited 2020 Mar 31];28:48-51. Available from: http://www.djo.org.in/articles/28/2/Legal-Liabilities-and-Duties-of-a-Doctor.html