EMERGENCY MEDICINE
LEGAL AND OPERATIONAL IMPEDIMENTS
Adv.C.K.SIVADASAN
M.A.(PMIR), LL.B., PGDADR(NALSAR)., PGDT, DACT, DEM, C.Coun
CONSULTANT
(MEDICO-LEGAL & HOSPITAL
ADMINISTRATION)
Email:cksdas@yahoo.co.in
EMERGENCY
MEDICINE
LEGAL AND OPERATIONAL IMPEDIMENTS
Dominique Jean Larrey, a French military surgeon organized
“flying carriages” or ambulances for rapid transport of wounded soldiers to a
central place where medical care was more accessible and effective using the
services of trained crews of drivers, corpsmen and litter-bearers, during the
French Revolution. For adopting this strategy he may be considered as the
father of emergency medicine. Even though this method of emergency treatment
was utilized during the French Revolution, it has taken more time to get
recognition as a specialty subject. Most of the hospitals established emergency
departments but managed with physicians and staff of other departments on
rotational basis. Importance of this specialty subject and requirement of
specialists trained in this subject came to the attention of the world during 70s after the establishment
of 24/7-year round Emergency Care at Alexandria Hospital, Virginia, headed by
Dr. James DeWitt Mills, which popularly known as the “Alexandria Plan”. In
Need for Emergency Medicine
Department
Emergency Medicine Department
of a hospital is really a miniature sub-unit of that hospital, like that all
facilities accessible to the emergency physicians and other staff in a short
notice for their disposal comparing with the same activities done in other
departments on pre-planning. Actually every hospitals are emergency medicine
units but the Emergency Medicine Department shall be distinguished based on
in its swiftness in reaction to the crisis, which emerges at a particular
moment. Tactical wisdom and relentless optimism, which are
manifested great qualities in successful emergency medicine departments.
Emergency treatment may become a necessity in all types of treatments
provided the differentiation depends on the nature of that particular case on
particular moment. Eg. Child birth is generally a preplanned procedure but
certain circumstances it becomes the responsibility of emergency medicine department. So, the condition of the
patient is the sole factor to decide necessity of involvement of emergency medicine department for that particular
treatment. Generally a patient attends the Casualty Unit of hospital and from
there he will be guided to the concerned departments for the treatment. But
the knowledge that in such cases there occurred much delay for appropriate
treatment, which may lead to avoidable losses and sufferings to the patient.
It is that knowledge, which paved to the development of a separate unit with
capabilities to deal all exigencies so as to stabilize the patient, save his
life and avoid all losses and sufferings by providing immediate medical care
so as to make treatment straightforward to the other conventional
departments.
What
is Emergency Medicine
The International Federation
for Emergency Medicine defines Emergency Medicine as: “Emergency
medicine is a medical specialty – a field of practice based on the knowledge
and skills required for the prevention, diagnosis and management of acute and
urgent aspects of illness and injury affecting patients of all age groups
with a full spectrum of undifferentiated physical and behavioral disorders.
It further encompasses an understanding of the development of pre-hospital
and in-hospital emergency medical systems and the skills necessary for this
development.” Whether this definition gives a clear picture or not it
involves variety of methods of treatment likely to be provided by the
specialist including those belongs to General Medicine, Surgery with
sub-specialties, Cardiology, Plastic Surgery, Radiology, Gynaecology and
Obstetrics, Orthopaedics, ENT., Anaesthesia, etc., better to say, all medical
subject in abstract as per the requirement. Really Emergency Medicine means
the summative application of “five rights” of medical administration, viz. “The right care”, “To the right person”, “At the
right time”, “In the right place” and “By the right people.”
Constitutional
Obligation
In the case of Paschim Banga Khet Mazdoor Samity and Ors. vs. State of
“In a welfare state the primary duty of the
Government is to secure the welfare of the people. Providing adequate medical
facilities for the people is an essential part of the obligations undertaken
by the Government in a welfare state. The Government discharges this
obligation by running hospitals and health centres which provide medical care
to the person seeking to avail those facilities. Article 21 imposes an
obligation on the State to safeguard the right to life of every person.
Preservation of human life is thus of paramount importance. The Government
hospitals run by the State and the medical officers employed therein are duty
bound to extend medical assistance for preserving human life. Failure on the
part of a Government hospital to provide timely medical treatment to a person
in need of such treatment results in violation of his right to life
guaranteed under Article 21. In the present case there was breach of the said
right of Hakim Seikh guaranteed under Article 21 when he was denied treatment
at the various Government hospitals which were approached even though his
condition was very serious at that time and he was in need of immediate
medical attention. Since the said denial of the right of Hakim Seikh
guaranteed under Article 21 was by officers of the State in hospitals run by
the State, the State cannot avoid its responsibility for such denial of the
constitutional right of Hakim Seikh. Hakim Seikh should, therefore, be
suitably compensated for the breach of his right guaranteed under Article 21
of the Constitution.”
Professional
Obligation
Every individual have a right to get treatment in
the case of emergency and law casts an obligation on the members of medical
profession in this regard. In the case of Pt. Parmanand Katara vs.
Qualities
required for Emergency
Medicine Department staff
Physicians and all other staff at Emergency Medicine Department
are required to manage situations without much guidance or directions at that
particular moment, so they shall be equipped and trained to make them capable
to react in a beneficial manner in emergencies. It is necessary to have
clinical knowledge, skills and attitudes required for quick assessment and
management of such situations, establishment of good patient-health care
professional relationship in the acute care settings by showing sympathy and
benevolence in their activities, procure confidence by showing proficiency
and appropriateness in the use of diagnostic and therapeutic skills, prove
capability in complete and appropriate assessment of acutely ill patients by
collecting history and corroborating signs and symptoms with the physical
data on examination, show prudence in selection of laboratory and diagnostic
imaging investigation tests, keeping patient safety, diagnostic utility and
cost and also in the interpretation of results in the existing clinical
context, exhibit familiarity and thoroughness with the equipments and
materials required in emergency situations for therapeutic interventions in
harmless, efficient, suitable and timely manner and orientation towards risk
reduction by communicating
effectively and work well together for the common goals of safety and
excellent service and preventing
medical errors occurring in the emergency situations.
More than these, leadership and emotional stability are very essential and
indispensable qualities required for the health care professionals to manage
emergency medicine department. Capability to provide patient
satisfaction and excellent customer service are considered as critical
attributes leading to high performance.
Legal safeguards
The
responsibilities delivered by emergency professionals are having with risks,
due to this nature, law provides protection from evil effects of such acts
but not from negligent acts. The Indian Penal Code, which defines criminal
acts and punishments, enacted as
far back as in the year 1860 sets out a few vocal examples. Section 88 in the
Chapter on General Exceptions provides exemption for acts not intended to
cause death, done by consent in good faith for person’s benefit. Section 92
provides for exemption for acts done in good faith for the benefit of a
person without his consent though the acts cause harm to a person and that
person has not consented to suffer such harm. Section 93 saves from
criminality certain communications made in good faith. Following
illustrations are appended to these sections:-
Section 88(illustration)
“A, a
surgeon, knowing that a particular operation is likely to cause the death of
Z, who suffers under a painful complaint, but not intending to cause Z’s
death and intending in good faith, Z’s benefit, performs that operation on Z,
with Z’s consent. A has committed no offence.”
Section 92(illustration)
“Z is
thrown from his horse, and is insensible. A, a surgeon, finds that Z requires
to be trepanned. A, not intending Z’s death, but in good faith, for Z’s
benefit, performs the trepan before Z recovers his power of judging for
himself. A has committed no offence.”
“A, a
surgeon, sees a child suffer an accident which is likely to prove fatal
unless an operation be immediately performed. There is no time to apply to
the child’s guardian. A performs the operation in spite of the entreaties of
the child, intending, in good faith, the child’s benefit. A has committed no
offence.”
Section 93(illustration)
“A, a
surgeon, in good faith, communicates to a patient his opinion that he cannot
live. The patient dies in consequence of the shock. A has committed no
offence, though he knew it to be likely that the communication might cause
the patient’s death.”
No Medical
Practitioner is an Insurer
Whether a medical
practitioner is an insurer or he can guarantee 100% success in treatment?
This subject is analyzed by courts of various countries in different cases at
different times and unequivocally declared law in this matter against
offering such guarantee. In the case of
Medical Negligence
Even though the courts shown much
enthusiasm to declare the truth that no medical practitioner shall give 100%
guarantee in treatment, at the same time, the same courts highlighted the
other side of the picture by providing relief to the sufferers for the
negligence of medical practitioners. In the case of Collins vs. Hertfordshire County Council & Anr.
[1947] 1 All E.R. 633, while
undergoing an operation, a patient in a county council hospital was killed by
an injection of cocaine which was given by the operating surgeon in the
mistaken belief that it was procaine. The operating surgeon had ordered
procaine on the telephone, but the resident house surgeon (who was then
unqualified) had mis-heard “procaine” as “cocaine”, and had told the
pharmacist to dispense a mixture which was, in fact, lethal. The pharmacist
dispensed the mixture without making further inquiry and without requiring
the written instruction of a qualified person, and the operating surgeon had
given the injection without checking that it was what he had ordered. The
operating surgeon, the house surgeon, and the pharmacist were all three in
the full-time or part-time employment of the council. In an action by the
patient’s widow against the county council and the operating surgeon alleging
that the death was the result of (a) the council’s negligence in the conduct
of their hospital, and (b) the operating surgeon’s failure to exercise
reasonable care.
Regarding attending
emergency cases, the court in the case of Barnett vs. Chelsea &
Kensington Hospital; [1968] 1 All ER 1068, where three men attended at the emergency department of the hospital but the casualty officer, who was himself unwell,
did not see them, advising that they should go home and call their own
doctors. One of the men died some hours later. The post mortem showed
arsenical poisoning which was a rare cause of death. Even if the deceased had
been examined and admitted for treatment, there was little or no chance that
the only effective antidote would have been administered to him in time. It
was held that the hospital had been negligent in failing to make necessary
arrangements to examine the men, even though the deceased’s death was not
caused by that negligence.
While injecting the
needle of syringe broken due to the non observance of precaution, when the
matter taken to the court, it was held in the case of Leon Cardin vs. La Cite De Montreal Et Al (1961) SCR 655 (Supreme Court of Canada),as: “It is true that doctors could not be held
liable for unforeseeable accidents but where it is shown that the patients
injury was due to the doctors failure to exercise the required degree of care
the burden of proving that the injury was brought on by some unforeseen cause
shifts to the doctor In the present case it is not the movement of the arm as
claimed by the doctor that caused the accident. The doctor knew that the boy
was nervous and should not have vaccinated him at that time. Having decided
to proceed the doctor was negligent when he failed to take the necessary
precaution of having the boy’s arm completely immobilized. The scars were the
direct result of this negligence.”
In the case of Dr. Laxman
Balkrishna Joshi vs. Dr.Trimbak Bapu Godbole and Anr. (1969), a
patient had suffered from fracture of the femur. The accused doctor while
putting the leg in plaster used manual traction and used excessive force for
this purpose, with the help of three men, although such traction is never
done under morphia alone but done under proper general anaesthesia. This gave
a tremendous shock causing the death of the boy. Based on these facts the
honourable Supreme Court of India declared the doctor was liable to pay
damages to the parents of the boy.
The honourable Supreme Court came heavily on
the professionals as well as on hospital for the dereliction of duty bestowed
on them, which led to sufferings to the patient and parents, in the case of Spring Medows Hospital & Another vs.
Harjol Ahluwalia thr’ K.S. Ahluwalia & Another (1988) wherein a minor child was admitted by his parents to a nursing home as he
was suffering fever. The doctor diagnosed typhoid and gave an injection
Lariago which was administered by the nurse to the patient who immediately
collapsed. The doctor was examined and testified that the child suffered a
cardiac arrest on account of the medicine having being injected which led to
brain damage. The cause of cardiac arrest was intravenous injection of
Lariago of such a high dose. The doctor was negligent in performing his duty
because instead of administering the injection himself he permitted the nurse
to give the injection. There was clear dereliction of duty on the part of the
nurse who was not even a qualified nurse and was not registered with any
nursing council of any State. Both the doctor and nurse and the hospital were
found liable and awarded compensation to the parents.
Again in the case of P.G.Inst. of Medical Education & Ors.
vs. Jaspal Singh & Ors. (2009), Smt. Harjit Kaur (wife of complainant No. 1 and mother of complainant
No. 2) received accidental burns - 50%
TBSA III - was taken to Daya Nand Medical College and Hospital, Ludhiana
immediately where she responded to the treatment well - On April 19, 1996,
Smt. Harjit Kaur was shifted in PGI, Chandigarh - The condition started improving
at PGI - On May 15, 1995 transfused A+ blood which was her blood group - On
May 20, 1996, the patient was transfused B+ blood group - night of May 20,
1996, the urine of the patient was reddish like blood and the attendant nurse
was informed accordingly - May 21,
1996 again one bottle of B+ blood group was transfused - hemoglobin levels fell down to 5mg. and
urea level went very high - the kidney and liver of the patient got deranged
- an inquiry was conducted through senior doctor and wrong transfusion of the
blood to the patient was found - ultimately died on July 1, 1996, the Supreme
Court distinguished negligence by saying:
“It is seen that the patient’s kidney was
damaged and the blood level reached to 100 gms. percentage, hemoglobin came
down to 5 mg. after the mismatched blood transfusion was given by the Doctor
in the said Hospital. It was only after the Complainant gave the written
complaint to the hospital regarding the wrong transfusion of blood given to
the patient, an inquiry was made and it was found correct. The damage control
treatment started only after the written complaint was given by the
complainant. Though it is argued by the Counsel for the Appellant that the
percentage levels were brought down to normal, it is very clear to us that
the internal imbalances of liver and kidney functioning and deteriorating
hemoglobin levels started only after the mismatched blood transfusion was
given. Though septicemia has been written as the ultimate cause of death, the
patient’s health took a nose dive only after wrong blood was given to her and
this is clearly negligence on the part of the Doctors of the Hospital which
the appellants cannot disown or absolve themselves.”
Sufficient Care
Meanwhile giving
clarification in the matters of medical negligence, the court never shown any
hesitation to declare the acts which done for the benefit of the patients in
good faith as service with sufficient Care. In the case of Dr.
B.N. Gurudev vs. Dr. N. Ramanna and Ors., wherein the appellant met with an
accident and sustained serious injuries resulting in fracture of the right
leg. A team of doctors conducted an emergency surgery and advised to consult
a Vascular Surgeon at
Further in another case, C.P.Sreekumar (Dr.), MS (Ortho) vs.
S.Ramanujam (2009), the honourable
Supreme Court of India analyzed the requirement and non-avoidability of the
treatment provided to the patient, wherein the respondent was hit by a
motorcycle leading to an injury to his leg on 31st December 1991. He was
admitted to the
Professional
Standard of Care
However while dealing with professional
competence judicial courts always reiterated the essentiality of minimum
prescribed knowledge and skill to the professional for practice. Requirement
of that professional standard of care in medical profession explained in the
case of R. vs.
Bateman (1925),
41 T.L.R. 557,and held: “If a person holds himself out
as possessing special skill and knowledge and he is consulted, as possessing
such skill and knowledge, by or on behalf of a patient, 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
direction 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. Each case
must, of course, depend upon its own particular facts. If a physician has
rendered treatment in a manner which is in conformity with the standard and
recognized practice followed by the members of his profession, unless that
practice is demonstrably unsafe or dangerous, that fact affords cogent
evidence that he has exercised that reasonable degree of care and skill which
may be required of him.” In another case, Eckersley
vs. Binnie, [1988] 18 Con.L.R. 1, 79, the honourable court explained this essentiality in
detail by saying that it should be ordinary in nature but at least minimum to
that class of professionals: “From
these general statements it follows that a professional man should command
the corpus of knowledge which forms part of the professional equipment of the
ordinary member of his profession. He should not lag behind other ordinary
assiduous and intelligent members of his profession in knowledge of new
advances, discoveries and developments in his field. He should have such
awareness as an ordinarily competent practitioner would have of the
deficiencies in his knowledge and the limitations on his skill. He should be
alert to the hazards and risks in any professional task he undertakes to the
extent that other ordinarily competent members of the profession would be
alert. He must bring to any professional task he undertakes no less
expertise, skill and care than other ordinarily competent members of his
profession would bring, but need bring no more. The standard is that of the
reasonable average. The law does not require of a professional man that he be
a paragon combining the qualities of polymath and prophet.”
But while evaluating the skills and knowledge
of a professional, what is the touchstone to compare it with? Whether it is
the approved practices of professional bodies or standard of reasonable care
demanded by the law? The judicial courts always accepted the second one because
of the acceptance of the whole society is more important than comparing to
that of a group of professionals. This subject is analyzed in the case
of F vs. R
(1983) 33 SASR 189(
Emergency Decisions
Emergency Medicine Department is the place
where a situation used to exist to take decisions instantaneously and there
always have reasonable expectation on the part of the patients and others
that such decisions are for the well being for them. Whenever any dispute
arise in this regard it gives a burden on the decision maker to prove that
decision and related acts done in good faith without any laxity because of
the fiduciary character of his position in the issue. This matter has came to
attention of Supreme Court of Canada in the case of Lapointe
vs. Hospital Le Gardeur, (1992) 1 SCR 351. The details of the case
as follows:
Nancy Lapointe, 5 year old child suffered
a severe cut to her elbow which severed her muscles, nerves and the humeral
artery and caused extensive blood loss. She was taken to the Emergency room
of the hospital Le Gardeur and the
emergency doctor performed vein dissection to enable replacement of lost
fluids through an intra-venous drip. On realizing his inability to join the
severed artery, he sent the patient to another paediatric hospital after
providing with preliminary requirements but without blood transfusion. He
prepared a transfer certificate stating the child was in state of pre-shock
and transported in an ambulance with nurse and other attendants. After her
arrival at paediatric hospital, the child suffered a massive
cardio-respiratory arrest and leading to brain damage due to the
insufficiency of Oxygen. The honourable court analyzed the following issues
in this case:
1. The veracity of the decision of the
doctor to transfer the child to the paediatric hospital at that particular
time.
2. The veracity of the decision of the
doctor not to proceed with a blood analysis and transfusion before the
transfer.
3. Depth of dedication shown by the
doctor, while transmitting information to the paediatric hospital, regarding
condition of the patient at the time of the transfer.
Regarding professional liability of the
doctor, as the central theme of this case, the court held:
“Professional liability is governed
by the principles of ordinary civil liability. Generally, doctors have an
obligation of means, and their conduct must be assessed against the conduct
of a prudent and diligent doctor placed in the same circumstances. Medical
professionals should not be held liable for mere errors of judgment which are
distinguishable from professional fault. The surgeon is, certainly, not to be
judged by the result, nor is he to be condemned for a mere error in judgment.
That error however must distinguish from an act of unskilfullness or
carelessness or due to lack of knowledge.”
The issue regarding the decision of the
doctor to transfer the child to the paediatric hospital at that particular
time, the court held that decision was appropriate one based on sound
judgment after assessing the situation using all reasonable means at his
disposal in caring for his patient:
“All agree that in order to repair
the wound, a transfer to Sainte-Justine hospital had to be effected by early
evening at the latest. A transfer was thus necessary in the medium term for
surgical purposes and advisable in the short term in order to control the
blood loss. All that remained to be decided was the time. Dr. Chevrette took
into account the distance to be covered, the immediate availability of an
ambulance, the duration of the journey, the clinical condition of the patient
and the advantages, disadvantages and the risks of the transfer, and, having
done so, saw fit to proceed with it.”
The honourable court analyzed second
issue of the doctor’s decision not to proceed with a blood analysis and
transfusion before the transfer, and observed that as reasonable:
“On the evidence, the gravity of the
case as it presented itself to Dr.Chevrette was indicated by the arterial and
therefore probably significant haemorrhage together with the child’s pallor,
and led to fears, without necessarily demonstrating their existence, of the
phenomena of compensation, of the vasoconstriction and therefore of
apprehended shock. On the other hand, all vital signs were positive. It was
thus a question of stemming the haemorrhage, of replacing the lost fluids, of
giving blood and, finally, of repairing the wound. He nevertheless had to
stop the haemorrhage and replace the volume of lost fluids, which he did. Of
course, we now know that it took almost an hour to insert the intravenous
tube. And it might be thought that if, during that same hour, the necessary
tests had been carried out to identify a compatible blood type, the child
could have been sent off with blood instead of intravenous solution and the
outcome might have been better. But on the evidence, there was no indication
that setting up the intravenous drip would be so difficult and that blood
ordered on arrival might perhaps be available even before it could be used.
It was reasonable to expect that it would not be available until after the
patient’s departure and would thus be useless unless the patient was held
back, which was judged inadvisable.”
The
third issue of dedication shown by the doctor, while transmitting information
to the paediatric hospital, regarding condition of the patient at the time of
the transfer analyzed with the evidences available and held there occurred a
violation of the duty of care by the doctor.:
“It
is thus apparent that Dr.Chevrette himself believes that he failed to get the
message across to his interlocutor, i.e. that it was a case of extreme
urgency, almost of life or death. He hung up, frustrated. Though disappointed
with the lack of response on the part of his interlocutor, whom he had not
succeeded in making aware of the problem, he did nothing. He made no other
call to a head of medical services, to a duty surgeon or even to the head
nurse. There was nothing in the way of an S O S intended for the medical team
at Sainte-Justine, which could have been given to the nurse accompanying the
child in the ambulance. And yet that certainly was not the time to spare the
feelings of an unknown and phlegmatic interlocutor. Indeed, had
Sainte-Justine hospital been sued, it could probably have argued that it was
justified in believing that the patient’s condition had been stabilized at Le
Gardeur hospital even though from the perspective of a non-specialist the
case appeared serious. A physician whose services have been sought and who,
in his professional judgment, decides to send his patient to another institution
or another professional, must take the necessary steps to ensure that they
are provided with the relevant information essential for the continuation of
treatment. This obligation is all the more imperative in a case of emergency
and where a child of tender years, having suffered considerable blood loss,
is in the aforementioned state of pre-shock.”
Limitations
in Emergency Treatment
Up to what extent a doctor entrusted to provide
treatment in an emergency? This question is very relevant in this advanced
age of knowledge and personal respect because as per the criminal law of most
of the countries the right of a person to control his or
her own body has been recognized and
any intentional nonconsensual touching which is harmful or offensive to a person
is actionable. At the same time, in most of the emergency situations, the
patient may not be in a position to convey his/her consent in the treatment.
This puts the emergency decision maker in a vulnerable situation. This issue
dealt by the Court of
Appeal in England while dealing with the case of Re. F., (1933) 3DLR 260 and held as: “A surgeon performs an
operation without his consent on a patient temporarily rendered unconscious
in an accident; he should do no more than is reasonably required, in the best
interests of the patient, before he recovers consciousness. I can see no
practical difficulty arising from this requirement, which derives from the
fact that the patient is expected before long to regain consciousness and can
then be consulted about longer term measures. It is quite possible that had
the patient been conscious, and informed about the need for the additional
procedure, the patient might have agreed to it. It may be that the additional
procedure is beneficial and in the interests of the patient. It may be that
postponement of the additional procedure (say removal of an organ) may
require another surgery, whereas removal of the affected organ during the
initial diagnostic or exploratory surgery would save the patient from the
pain and cost of a second operation. Howsoever practical or convenient the
reasons may be, they are not relevant. What is relevant and of importance is
the inviolable nature of the patient’s right in regard to his body and his
right to decide whether he should undergo the particular treatment or surgery
or not. Therefore at the risk of repetition, we may add that unless the
unauthorized additional or further procedure is necessary in order to save
the life or preserve the health of the patient and it would be unreasonable
(as contrasted from being merely inconvenient) to delay the further procedure
until the patient regains consciousness and takes a decision, a doctor cannot
perform such procedure without the consent of the patient.”
Ontario Court of Appeal analyzed such a situation
in the case of Malette vs. Shulman et al. 72 O.R. (2d) 417.
The details of the case as follows:
Mrs.
Georgette Malette, was rushed, unconscious, by ambulance to the Hospital as
she met in an accident. Dr. David L. Shulman, examined and noticed
that she had severe head and face injuries and was bleeding profusely. The
doctor concluded that she was suffering from incipient shock by reason of
blood loss, and ordered that she be given intravenous glucose followed
immediately by Ringer’s Lactate as per the standard medical procedure and
decided, if the patient does not respond with significantly increased blood
pressure, transfusions of blood are then administered to carry essential
oxygen to tissues and to remove waste products and prevent damage to vital
organs. But this time, a nurse discovered a card in Mrs. Malette’s purse
which identified her as a Jehovah’s Witness and in which she requested, on
the basis of her religious convictions, that she be given no blood
transfusions under any circumstances. The card, which was not dated or
witnessed, was printed in French and signed by Mrs. Malette. Dr. Shulman was
promptly advised of the existence of this card and its contents. Mrs. Malette
was next examined by a surgeon on duty in the hospital. He also noticed that,
to avoid irreversible shock, it was vital to maintain her blood volume. Then
Mrs. Malette’s condition deteriorated. Her blood pressure dropped markedly,
her respiration became increasingly distressed, and her level of
consciousness dropped. She continued to bleed profusely and could be said to
be critically ill. Based on these, Dr. Shulman decided that Mrs. Malette’s
condition had deteriorated to the point that transfusions were necessary to
replace her lost blood and to preserve her life and health. He personally
administered transfusions to her, in spite of the Jehovah’s Witness card.
Meanwhile, Mrs. Malette’s daughter arrived at the hospital and strongly
objected to her mother being given blood. She signed a document specifically
prohibiting blood transfusions and a release of liability. Dr. Shulman
refused to follow her instructions as the blood transfusions were, in his
judgment, medically necessary in this potentially life‑threatening situation,
he believed it his professional responsibility as the doctor in charge to
ensure that his patient received the transfusions. After recovery Mrs.
Malette brought action against Dr. Shulman, the hospital, its Executive
Director and four nurses, alleging that the administration of blood transfusions
in the circumstances of her case constituted negligence and assault and
battery and subjected her to religious discrimination. In this case the court
held as:
“The
right of self‑determination which underlies the doctrine of informed consent
also obviously encompasses the right to refuse medical treatment. A competent
adult is generally entitled to reject a specific treatment or all treatment,
or to select an alternate form of treatment, even if the decision may entail
risks as serious as death and may appear mistaken in the eyes of the medical
profession or of the community. Regardless of the doctor’s opinion, it is the
patient who has the final say on whether to undergo the treatment. The
patient is free to decide, for instance, not to be operated on or not to
undergo therapy or, by the same token, not to have a blood transfusion. If a
doctor were to proceed in the face of a decision to reject the treatment, he
would be civilly liable for his unauthorized conduct notwithstanding his
justifiable belief that what he did was necessary to preserve the patient’s
life or health. The doctrine of informed consent is plainly intended to
ensure the freedom of individuals to make choices concerning their medical
care. For this freedom to be meaningful, people must have the right to make
choices that accord with their own values regardless of how unwise or foolish
those choices may appear to others.”
Non-performance of the
Emergency Procedure due to the non availability of Consent
In an emergency situation the doctor failed to perform the
essential procedure and which led to evil consequences. The doctor’s argument
was non performance was due to non availability of consent from the patient
for the procedure. This matter came for the scrutiny of the honourable Kerala
High Court in the case of Dr. T.T.
Thomas vs. Smt. Elisa and Ors.,
(1987), where the patient was admitted in the
Infrastructure
The
infrastructure requirement in the Emergency Medicine Department should always
based on the data of emergency cases occurs in that particular geographical
region and the services offered by the health care organization. It may vary
in different organizations. Whatever be the quantity and quality of the
infrastructure provided, very relevant aspects in this matter are
accessibility of infrastructure
according to the requirement, convenience in handling and familiarity and thoroughness of the operators with the
equipments and materials required in emergency situations. However
provision of certain minimum infrastructure used to be advantageous to the
hospital as well as the patients. While coming to that some of them is
Emergency Operation Theatre, facilities for Resuscitation, facilities for
poison treatment (chemical and biological), Popliteal
Injury Care, Isolation Bay, multidisciplinary ICU, easy
accessibility to radio-diagnostic units, easy conveyance facilities to/from
ambulances and other mobile units, Information Centre and Network using
mobile phones/ radio frequency/ GSM equipments for transmitting out details
about outgoing patients as well as for
pre-warning the staff for preparedness regarding incoming patients, Emergency
Volunteer Unit to provide assistance at accident spots, etc. Systematic
settings and arrangements of the infrastructure and other materials, so as to
ensure its accessibility and usage for the optimum utilization by the
operator is a key element for success in this realm. Effective calibration,
maintenance and replenishment of equipments and periodical verification and
inspection also provide for smooth functioning without any hindrances.
Human Resources
Human
resources are the real energy behind the vitality of every organization. So
the professionals as well as other staff of Emergency Medicine Department are
very important asset of that organization to maintain liveliness in the
department by means of their activities. Generally the department will
flourish if they flourish in their performance, which normally depends on the
capability of the organization in selection, training and development of the
human resources and to create and sustain congenial atmosphere for the same.
Doctors, Nurses, technicians and other staff working in the Emergency
Medicine Department should have adequate knowledge and flair in emergency
medicine. Identification of manpower with self orientation towards this
specialty is the first and foremost task to achieve this goal. Previous
experience in some other organization is not a sufficient criteria because
the structure, procedures and protocols of that organization may be different
from that of this organization and the introduction of that particular person
to the other organization may be purely on the basis of acquaintance to the
some people in that organization. After identification and selection of the
incumbents, they should be provided with sufficient training in the
procedures to be followed and the operations of the equipments utilized based
on the appropriateness of the context. On completion of the training, their
services shall be utilized under the supervision and guidance of more
competent people so as to enable them to develop their talents. At frequent
intervals the performance of every incumbent as well as that of group
required to bring under appraisal and the feed back and the same should be
used for further development. These training, development and performance
appraisals are continuous in nature and unavoidable for keeping the effectiveness
of the organization.
Chief Executive
The Chief Executive of Emergency Medicine
Department, whatever be the designation carried with, is the real stage
player of the activities of the department. His knowledge, flair, vision,
enthusiasm, involvement, motivation and capabilities in management and
administration used to get reflected in the performance of the individuals as
well as that of the department. He should be a team leader with knowledge as
guiding force encompassed
tactical
wisdom and relentless optimism. His knowledge in law and administration
should be supreme in thought and action so as to push the department up to
the peak of the performance and also to protect it from falling in the faulty
trench holes. He should be a responsible person to ensure the success of the related clinical, research,
financial, administrative and academic operational components, including the
operational and fiscal performance of the emergency department. That may
include guidance and advice to clinical supervisors related with the programs
to improve quality of service, patient safety and effectiveness while
reducing cost, leading multi-disciplinary teams for clinical audit, hospital
infection control, performance appraisal, infrastructure development, annual
budget and other key departmental and hospital initiatives and overall
supervision of departmental programs and entrepreneurial activities.
Documentation
(This
subject is already discussed in a previous paper titled “Hospital
Administration – A Legal Perspective” but due to the acute nature of
importance again repeats here.)
Proper
documentation of its activities is considered as a vital sign of a successful
organization. Generally there is misleading belief among the medical
professionals, especially those working in Emergency Medicine Department that
since their profession is involved with life saving activities documentation
is not very important and related task.
Documents prepared at appropriate time are reckoned as genuine
evidence, which is a tool, to settle issues in a dispute that may occur in
future. Generally doctors and other health care providers do everything with
the intention of curing the patient so as to get relief from the clutches of
diseases or disorders but due to some inadvertence or misfortune of
unavoidable circumstances that leads to inconvenience or difficulties to the
patient. Its after, whenever the dispute reaches in the court for perusal,
the doctors and other health care providers become helpless to prove their
‘good faith’ in the activities which led to negligence, in the absence of any
evidence to support their argument.
Importance of documentation is explained in the research paper titled
‘Medical Negligence: Law and
Interpretation’ by Anurag K.
Agarwal of IIM, Ahmedabad as: “Law requires evidence and documentary
evidence in the form of case papers has to be meticulously prepared. The duty
of the doctor is to treat the patient; however, it is also important to
document the treatment given and at times the reason why such treatment has
been given. The matters reach a court after several months and years and by
that time the only thing on which the parties can rely in the court is the
case file. The oral evidence of doctors and other staff also adds to the
evidence, however, the documentary evidence always gets precedence, until and
unless proved to be forged. It is also important to have transparency in the
system and give a copy of all the papers, reports, films, etc. to the
patient. In such a case the confidence of a patient in the hospital and its
system increases. There are, however, some doctors and hospitals who try to
keep the patient in the dark. The oft-repeated phrase is, “do you have trust
in me?” The patient is almost at the mercy of the doctor. An important improvement
in the paper work has been in the shape of electronic records, which allow
easy storage and retrieval. At the same time, several copies can easily be
made. There is also minimal chance of errors creeping in as most of the items
are to be selected from a drop-box. The issue of bad handwriting, very common
complaint with doctors, is also easily taken care of. All new hospitals work
with local network of computers and do not transfer papers from one place to
another. There is also no chance of losing a paper.”
This
concept has included in the “Accreditation
Standards for Hospitals”, 3rd Edition by National Accreditation Board for Hospitals and Healthcare
Providers (NABH) as important and
very essential requirement for accreditation. Eg. The Chapter, ‘Access Assessment and Continuity of
Care’ (AAC) provides as:
a. Documented
policies and procedures are used for registering and admitting patients.
b. The documented
procedures address out-patients, inpatients and emergency patients.
c. The documented
policies and procedures also address managing patients during
non-availability of beds.
d. Documented
policies and procedures guide the transfer-in of patients to the
organization.
e. Documented
policies and procedures guide the transfer-out/referral of unstable patients
to another facility in an appropriate manner.
f. Documented
policies and procedures guide the transfer-out/referral of stable patients to
another facility in an appropriate manner.
g. The documented
procedures identify staff responsible during transfer/referral.
h. The organization
defines and documents the content of the initial assessment for the
out-patients, in-patients and emergency patients.
i.
Documented procedure guide ordering of tests,
collection, identification, handling, safe transportation, processing and
disposal of specimens.
j. Laboratory
results are available within a defined time frame.
k. Critical results
are intimated immediately to the personnel concerned.
l.
The laboratory quality assurance programme is
documented.
m. The programme
addresses verification and/or validation of test methods.
n. The programme
addresses surveillance of test results.
o. The programme
includes periodic calibration and maintenance of all equipment.
p. The programme
includes the documentation of corrective and preventive actions
q. The
laboratory-safety programme is documented.
r. Written
procedures guide the handling and disposal of infectious and hazardous
materials.
s. Documented
policies and procedures guide identification and safe transportation of
patients to imaging services.
t. Imaging results
are available within a defined time frame.
u. Critical results
are intimated immediately to the personnel concerned.
v. The quality
assurance programme for imaging services is documented.
w. The programme
addresses surveillance of imaging results.
x. The programme
includes the documentation of corrective and preventive actions.
y. The
radiation-safety programme is documented.
z. Radiation-safety
devices are periodically tested and results documented.
aa. Information is
exchanged and documented during each staffing shift, between shifts, and
during transfers between units/departments.
bb.
Documented procedures guide the referral of patients
to other departments/specialties.
cc. Documented
procedures exist for coordination of various departments and agencies
involved in the discharge process (including medico-legal and absconded
cases).
dd.
Documented policies and procedures are in place for
patients leaving against medical advice and patients being discharged on
request.
In
the cases of Bolam vs. Friern Hospital
Management Committee, Queen’s Bench Division, [1957]; Dr. Suresh Gupta vs. Govt. of N.C.T. of Delhi (2004); Jacob
Mathew vs. State of Punjab (2005); Dr.
B N Gurudev vs. Dr. N Ramanna (2008);
Martin F. D’Souza vs. Mohd. Ishfaq
(2009); Dr. C P Sreekumar vs. S
Ramanujam (2009), court held hospitals and medical professionals are not
liable on the basis of documentary evidences maintained by them.
Procedures
and protocols
Pre-decided
procedures and protocols always give way for systematic functioning, which
will ensure the delivery of responsibility and duty of everybody in an
effective manner beneficial to the end users. It decides ‘what to do’, ‘when
to do’, ‘how to do’, ‘where to do’ and ‘who to do’ in the emergency
department, where range of freedom in activities is more for professionals but
prescribe the boundary lines. Guidelines and Resource documents issued by
authorities and professional bodies are very relevant in this subject. Eg.
Resource document issued by the
In
the case of Pt. Parmanand Katara vs.
2. Zonalisation as has been worked out for the
hospitals to deal with medico- legal cases will only apply to those cases
brought by the Police. The medico-legal cases coming to hospital of their own
(even if the incident has occurred in the zone of other hospital) will not be
denied the treatment by the hospital where the case reports, nor the case
will be referred to other hospital because the incident has occurred in the
area which belongs to the zone of any other hospital. The same police
formalities as given in para 1 above will be followed in these cases.
3. All Government Hospitals, Medical Institutes
should be asked to provide the immediate medical aid to all the cases
irrespective of the fact whether they are medico- legal cases or otherwise.
The practice of certain Government institutions to refuse even the primary
medical aid to the patient and referring them to other hospitals simply
because they are medico-legal cases is not desirable. However, after
providing the primary medical aid to the patient, patient can be referred to
the hospital if the expertise facilities required for the treatment are not
available in that Institution.”
Apex court, while dealing with the case Paschim Banga Khet Mazdoor Samity and Ors.
vs. State of
“(1) Proper medical aid within the scope of the
equipments and facilities available at Health Centres and Hospitals should be
provided to such patients and proper records of such aid provided should be
preserved in office. The guiding principle should be to see that no emergency
patient is denied medical care. All possibilities should be explored to
accommodate emergency patients in serious condition.
(2) Emergency Medical Officers will get in
touch with Superintendent/Deputy Superintendent/ Specialist Medical Officer
for taking beds on loans from cold wards for accommodating such patients as
Extra-temporary measures.
(3) Superintendents of hospitals will issue
regulatory guidelines for admitting such patients on internal adjustments
amongst various wards and different kinds of beds including cold beds and
will hold regular weekly meetings for monitoring and reviewing the situation.
A model of such guidelines is enclosed with this memorandum which may be
suitably amended before issue according to local arrangements prevailing in
various establishments.
(4) If feasible, such patients should be
accommodated in trolley-beds and, even, on the floor when it is absolutely
necessary during the exercise towards internal adjustments as referred to at
(3) above.”
Having regard to the drawbacks in the system of
maintenance of admission registers of patients in the hospitals it has been
directed that the Superintendents and Medical Officers of the hospitals
should take the following actions to regularize the system with a view to
avoiding confusion in respect of Admission/Emergency Attendance Registers:
“(a) Clear recording of the name, age, sex,
address, disease of the patient by the attending medical officers;
b) Clear recording of date and time of
attendance/ examination/ admission of the patient;
(c) Clear indication whether and where the
patient has been admitted, transferred, referred;
(d) Safe custody of the Registers;
(e) Periodical inspection of the arrangement by
the Superintendent;
(f) Fixing of responsibility of maintenance and
safe custody of the Registers.”
And with regard to identifying the individual
medical officers attending to the individual patient approaching Out
Patient’s Department/Emergency Department of a hospital on the basis of
consulting the hospital records, it has been directed that the following
procedure should be followed in future:
“A. A copy of the Duty Roaster of Medical
Officers should be preserved in the office of the Superintendent
incorporating the modifications done for unavoidable circumstances;
B. Each Department shall maintain a register
for recording the signature of attending medical officers denoting their
arrival and departure time;
C. The attending medical officer shall write
his full name clearly and put his signature in the treatment document;
D. The Superintendent of the hospital shall
keep all such records in safe custody;
E. A copy of the ticket issued to the patient
should be maintained or the relevant data in this regard should be noted in
an appropriate record for future guidance.”
While considering nature, relevance and
importance of the Emergency Medicine, it is possible to feel tremendous
growth in the subject by means of research and contributions from different
fields including Medicine, Science, Technology, Management, Law, etc.
Whatever be the form in which it exists now, certainly it is a Science
evolved for the welfare of the mankind, so it will have esteem and pride in
the society.
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Sunday, 15 June 2014
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