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1 Abstract Transworld Medical Journal ISSN: Available online at Review Obstetricians in labor room: Emerging legal and ethical issues Lavlesh Kumar* Department of Forensic Medicine, SBKS Medical Institute and Research Center, Vadodara, Gujarat Recently the litigations in obstetrics and gynecology practice have arisen as an important issue. Unlike other fields of medicine the negligence suits in this field often favoured the complainant. A casual literature search of court judgments in the recent past surprisingly revealed that there exists a wide spectrum of lacunae in each sphere of obstetrics practice. Understanding the basic elements of a malpractice suit allows a doctor to comprehend in a better way the different facets of medical care in a labour room and hence coping up with the emergence of litigation suits. This article aims to highlight different ethical and legal issues related to negligence in obstetrics and gynecology which, we hope, may offer adequate professional protection. Key words: Negligence, obstetrics practice, consent, standard of care, medical emergency Introduction Malpractice risk bedevils obstetricians. Suits can be a nuisance or emotionally and financially devastating. The recent trend shows that litigation suits in obstetrics and gynaecology practice has arisen as an important issue. Studies on distribution of cases based on specialty branch showed that highest numbers of suits are covering areas of obstetrics and gynaecology. 1,2,3,4,5,6,7 In a shocking revelation, it was also found that more than 90% of claims are from obstetrics compared to gynaecology. 1,2,3 The analysis of trends of professional liability payment showed that obstetrician-gynecologists are at higher risks compared to gynecologic oncologists, maternalfetal medicine, and reproductive endocrinologists. 8 Furthermore, in the field of obstetrics, verdict favoured patient parties, than its allied specialties. 9 Litigations raised in most of the cases in child birth are related to the bad outcome rather than malpractice itself. Additionally, both juries and the Tel.: Transworld Medical Journal. All rights reserved. public often anticipate perfection as the natural result of pregnancy and any deviation from this expectation has to be the result of someone s negligence. However, the Indian legal system has consistently recognized the hazards associated with the medical practice. The Indian law protects the doctors from criminal liability through sections 88 to 92 of Indian Penal Code (IPC), because the law presumes that a doctor always acts in good faith for the wellbeing of his patient. 10 This article intends to outline the major causes of malpractice suits, analyze the various dimensions of ethical and legal issues, thereby guiding a practitioner to understand the consequences, and in so doing, avoid alleged negligence. Viewpoint: Constitution of India Obligation to save life during emergency Neither the Indian Statutes nor the judiciary have defined medical emergency. Therefore, the definition of medical emergency is still largely left to the discretion of medical professionals. The Concise Oxford dictionary defines emergency as a

2 serious, unexpected and potentially dangerous situation requiring immediate action. 11 In a landmark judgment, 12 the supreme court of India held that every doctor is duty bound to immediately attend to and protect the lives of the patient brought before her/him. It also said that every doctor, whether at a government hospital or in private practice, has a professional obligation to extend her/his services with due expertise to protect life. The judgment further said, When a man in a miserable state hanging between life and death reaches the medical practitioner in any set up, he is always called upon to rush to help such a person and to do all that is within power to save life. It is a duty coupled with human instinct which needs neither decision nor any code of ethics nor any rule or law. Duties of a welfare State Sometimes a patient in critical condition is denied admission and further treatment on the ground of non-availability of a bed, lack of necessary facilities for treatment, etc. Incidentally, there was another landmark judgment to award compensation to a patient for the denial of treatment in an emergency. 13 The Court stated that: The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. The Government discharges this obligation by running hospitals and health centers which provide medical care to the person seeking to avail those facilities. The government also issues licenses to the private hospitals to meet this obligation. Article 21 imposes an obligation on the State to safeguard the right to life of every person. 14 Failure on the part of State 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 respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution, the position is well settled that adequate compensation can be awarded by the court for such violation by way of redress in proceedings under Articles 32 and 226 of the Constitution. Notwithstanding the immunity provided by the Constitution of India in an emergency situation, still, the number of litigation suits against the doctors in the recent past is increasing. Therefore, there are certain important ethical and legal aspects of emergency medical care that, probably, the medical professionals are not adhering to, to safeguard themselves. Ethical aspects Right to choose his patient The Code of Medical Ethics of the Medical Council of India states that though a physician is not bound to treat each and every person asking for his services, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission, and the responsibility he discharges in the course of his professional duties. In normal course, a physician advising a patient to seek the service of another physician is acceptable; however, in the case of an emergency, he must treat the patient, in stead of arbitrarily refusing treatment. 15 The Code of Medical Ethics further states that a physician is free to choose whom he would serve. He should, however, respond to any request for assistance in an emergency. Once a physician undertakes a case, he should not neglect the patient, nor should he withdraw from the case without informing the patient and his family, that may deprive a patient from necessary medical care. Legal Aspects Consent to treatment Section 92 of the Indian Penal Code offers legal immunity for a registered medical practitioner to proceed with appropriate treatment even without the consent of the patient in an emergency, when the victim is incapable of understanding the nature of the treatment, or when there are no legal heirs to sign the consent. 10 If the patient is conscious and refuses treatment without which that person might endanger his/her life, then the surgeon can inform the 19

3 judicial magistrate and get the sovereign power of guardianship over persons under disability (parens patriae). In some negligence suits, the doctors defend their action on the basis of the plea that the patient had declined to undergo the operation and therefore, in the absence of the patient s consent, he was unable to take any action. The Court rejected the contention of the doctor and held that he was negligent. 16 It was held that in the case of emergency surgery, the doctor cannot wait for the patient s consent where the patient is not in a fit state of mind to give consent, or to give a conscious answer regarding consent, or where the patient is a minor or a lunatic. In K. Gracekutty v. Dr Annamma Oommen (Kerala SCDRC), 17 in a case of emergency, the doctor preceded with his plan of treatment without taking consent, the court held that, even though consent was not taken, it was considered only as a lapse, which does not constitute negligence. Right to fix priority of attending his patients The doctors right to decide the issue of priority of attending to patients has been upheld by the Consumer Disputes Redressal Agencies. This right is an important aspect of medical practice since often the patient s perception of emergency differs from that of a doctor. In B. S. Hegde v. Dr Sudhansu Bhattacharya, 18 the National Commission held that a doctor has the absolute right to decide which patient he would examine first and even out of turn, depending on the condition of the patient. In addition, it cannot be held that patients must be examined at the appointed time, keeping in view length of time the doctor may have to spend in examining previous patients. At the same time, when a patient was left unattended for hours without any medical help, deteriorated and died as a result, the court held both the doctor and the hospital negligent. 19 Standard of care in an emergency Patient requiring critical care, the priority of the doctor is to save life rather than comply with the procedural formalities. However, it does not mean 20 that the standard of care is liberalized. It only implies that a medical professional follows acceptable treatment methods that are at her/his disposal. The Supreme Court and High Courts of India have expressed similar sentiments on various occasions. In A. S. Mittal v. State of U.P. 20 the Supreme Court of India held: Where the operation is a race against time, the Court will make greater allowance for mistakes on the part of the surgeon or his assistants, taking into account the risk benefit test. In New India Assurance Co. Ltd. v. Dr Kiritkumar S. Sheth, 21 it was expressed that there is a difference in the degree of care, caution and skill in normal times; and in the case of an emergency, nobody can expect the same degree and amount of care, caution and skill. The amount of care, skill and caution expected of a reasonable and prudent medical practitioner may not be the same during an emergency. Choice of treatment Undoubtedly, a doctor has the discretion to choose the treatment that he proposes upon a particular patient, and such discretion is relatively more in an emergency. In Vinitha Ashok v. Lakshmi Hospital, it was held that in case of emergency, the operating doctor has a wider discretion about the treatment. 22 Time taken for resuscitation There are many suits relating to the time lapse in shifting of the patient to operation table. The Courts also recognize the time taken by doctors for observation or resuscitation as a part of emergency management. In Lekhhraj v. Bharaj Nursing Home, it was held that the doctor would first attempt to bring the patient out of shock and thereafter decide about the nature of treatment to be given. 23 Similarly, in Amir Ali Shakir v. St John s Medical College Hospital, Bangalore, it was held that reasonable delay in shifting the patient to the operation theatre because of the necessity to correct the shock is not negligent. 24 Substitute Often, a busy doctor, in a private set up employs assistants, for carrying out day to day work. But the employer should always remember that the

4 assistant should possess requisite qualification and experience. The courts held that unless a doctor or his assistant is qualified enough, he should not handle complicated cases that are beyond his control or expertise. In the instant case, a pregnant woman with history of two previous caesarian deliveries was attended by a nurse resulting in fatal outcome of the new born due to delayed labour and rupture uterus. The court held the opposite party guilty of gross negligence, and adequate compensation was awarded. 25 In other instances, unqualified persons with some experience in the field attend deliveries and caused the patient to suffer from unwarranted complications. 26 The court held that, the responsibility to save the life of the patient in a hospital rests only upon the treating doctor. Difficult to diagnose There are instances when a case present with most atypical presentation; and sometimes it is difficult on the part of treating physician to diagnose and even suspect a proper diagnosis. In a malpractice suit, 27 it was alleged that during the early stage of patient s second trimester pregnancy she suddenly fell ill and was hospitalized. The doctors misdiagnosed her to be a case of missed abortion and D&C was performed. After 2 weeks of her discharge from hospital she again developed pain abdomen and taken to another hospital where diagnosis of ruptured ectopic was made and was successfully treated there. The courts held that an error of judgment should not be constructed as negligence. Wrong or incorrect management A medical man is enabled and empowered by virtue of education and training and eventually expertise to foresee the consequence and outcome of his line of treatment. The greater the danger is and the nearer it is, the greater is the negligence of the doctor. If a medical practitioner does an act which he did not intend or even foresee, but which a reasonable medical practitioner would have foreseen under similar circumstances as likely to cause injury or death, he would be held guilty of the wrongful act. In a suit it was alleged that negligent application of forceps during delivery resulted in the formation of vesico-vaginal fistula, later requiring surgical intervention. As the patient has undergone caesarian section delivery for the birth of her first child, the court held that, the fistula at the site of the previous caesarian section scar could have been avoided if the doctor had been really careful in applying forceps and awarded compensation. 28 In another case of mismatched blood transfusion followed by death of the patient, the court held the doctor guilty. The patient had the history of severe postpartum haemorrhage following the delivery of her first child through caesarian section. The court held that, the doctor should have anticipated bleeding in subsequent deliveries and kept ready the required amount of blood grouped and cross matched. Hence there was complete lack of diligence and deficiency of service on the part of the doctor, and the patient was awarded adequate compensation. 29 In another case, the size of the baby was above normal and the party has consented for caesarian section delivery. But the doctor had some other appointment and therefore preferred forceps delivery and the patient died of haemorrhage while giving birth to the baby. During trial the state commission did not find any fault with forceps delivery, but said it was done in a hurry which caused haemorrhage, and therefore held the doctor negligent. 30 Retained foreign bodies and the principle of res ipsa loquitur Retained foreign bodies like sponge, gauge piece, and instruments are known complications in obstetrics practice that are often contested in court of law as negligence suits. In such instances the doctors find themselves in a predicament, as the defences available are few. The principle of res ipsa loquitur applies in such cases. It is held that, but for the negligent conduct of the respondent, the damage would not have occurred. The misfortune with such cases is that the burden of proof shifts to the doctor, and in most of the instances the judgment favoured the compainant. 31, 32 21

5 Inadequate facilities in the labour room Every maternity hospital should have adequate facilities to handle the complicated cases and should be equipped with life saving measures. Courts have repeatedly taken serious note in regard to deficiencies and held the respondent guilty. In a case of death during operation, there was alleged negligence on the part of the doctor for lack of adequate facilities in the operation theater. The patient was having a rare blood group A -ve, was weighing 124 kg (a morbid obese patient). The court observed that the risks involved in such cases are well known and reasonably foreseeable; and yet the doctor did not make requisite essential arrangement for managing a potential risk case and so the doctor was held liable. 33 In another case a patient bled profusely during caesarian section delivery for 7 hours; afterwards two bottles was transfused but the condition of the patient deteriorated and subsequently died. Later during the investigation it was found that there was even no oxygen cylinder in the operation theater, and when the need arose it was shifted from another clinic. So the commission held the nursing home as well as the doctor liable. 34 Apprehensions of doctors for adverse outcomes and guidelines of the Supreme Court Some doctors avoid treating patients in an emergency and, even if approached, direct the patient to a government hospital. Because, in case of an adverse outcome, they harbour apprehensions about malpractice suits, facing police interrogation and having to repeatedly visit police stations. They are also reluctant to be a party in a court of law as they may be required to attend the proceedings on multiple occasions, wait for a long time, and sometimes face long and unnecessary cross-examinations. These prevent a medical professional from doing the needful when a person requires emergency treatment. To allay these apprehensions, the Supreme Court held in Parmanand Katara v. Union of India 12 that The police, the members of the legal profession, law courts and everyone concerned will also keep in 22 mind that a man in the medical profession should not be unnecessarily harassed for purposes of interrogation or for any other formality and should not be dragged during investigations at the police station and it should be avoided as far as possible. Our law courts will not summon a medical professional to give evidence unless the evidence is necessary and, even if he is summoned, attempt should be made to see that the men in this profession are not made to wait and waste time unnecessarily. It is also expected that where the facts are so clear it is expected that unnecessary harassment of the members of the medical profession either by way of requests for adjournments or by cross-examination should be avoided. Conclusion The legal and ethical obligations of a medical practitioner to attend to the emergency medical needs of a patient are total, absolute and paramount. All laws of procedure, whether in statutes or otherwise, are suspended when a doctor attends to a patient in an emergency. Therefore, there is no need to be hesitant to attend to the emergency and critical care needs of a patient within the prescribed standard of care. Evidence based practice with compassion, excellent communication, and a written patient s consent form are of paramount importance. References 1. Zhou M, Huang Y, Deng ZH. Analysis of 82 forensic expertise cases on medical disputes in obstetrics and gynecology. Fa Yi Xue Za Zhi Jun; 25(3): Büken E, Ornek Büken N, Büken B. Obstetric and gynecologic malpractice in Turkey: incidence, impact, causes and prevention. J Clin Forensic Med Oct;11(5): Fajardo-Dolci GE, Hernández-Torres F, Santacruz-Varela J, Hernández-Avila M, Kuri- Morales P, Gómez-Bernal E. Epidemiological general profile of complaints treated at the National Medical Arbitration Commission Salud Publica Mex Mar-Apr; 51(2): Chervenak JL. Overview of professional liability. Clin Perinatol Jun; 34(2):

6 5. Carroll AE, Buddenbaum JL. Malpractice claims involving pediatricians: epidemiology and etiology. Pediatrics Jul; 120(1): Yang CM, Tsai SH, Chiu WT. How risky is caring for emergency patients at risk of malpractice litigation: a population based epidemiological study of Taiwan's experiences. BMC Health Serv Res Sep 17 (9): Yang CM, Chiu WT. The risk of malpractice litigation in care to head-injury patients in comparison with other high-risk patient groups: an inpatient-based epidemiological study in Taiwan. Surg Neurol. 2006; 66 Suppl 2:S Barbieri RL. Professional liability payments in obstetrics and gynecology. Obstet Gynecol Mar;107 (3): Uesugi N, Yamanaka M, Suzuki T, Hirahara F. Analysis of birth-related medical malpractice litigation cases in Japan: review and discussion towards implementation of a no-fault compensation system. J Obstet Gynaecol Res Aug; 36 (4): The Indian Penal Code Bare Act. 11. Concise Oxford English Dictionary. Oxford University Press, Parmanand Katara, Petitioner v. Union of India and others, Respondents. AIR Supreme Court Justices Ranganath Misra and G.I. Oza. 13. Paschim Banga Khet Mazdoor Samity v. State of West Bengal (AIR 1996 SC 2426). 14. The Constitution of India. 15. The Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, Dr T. T. Thomas v. Smt. Elisa. AIR 1987 Kerala K. Gracekutty v. Dr Annamma Oommen (Kerala SCDRC, 1992 (1) CPR 251). 18. B. S. Hegde v. Dr Sudhansu Bhattacharya (1992 (2) CPJ 449 Maharashtra SCDRC). 19. Ujjain Charitable Trust vrs Ramesh Chandra and others 2003 (3)CPJ 181 (MP SCDRC). 20. A.S. Mittal & Ors v. State of U.P. & Ors [1989] rdsc 189 (12 may 1989). 21. New India Assurance Co. Ltd. v. Dr Kiritkumar S. Sheth Acc CJ Vinitha Ashok v. Lakshmi Hospital (1992 (2) CPJ 372 (NCDRC). 23. Lekhhraj v. Bharaj Nursing Home (1998 (2) CPJ 335 (Punjab SCDRC); 1998 (2) CPR 450). 24. Amir Ali Shakir v. St John s Medical College Hospital, Bangalore (1996 (1) CPJ 169; 1995 (3) CPR 174 (Karnataka SCDRC). 25. R. Lalitha v. M.Jeeva, 1992 (2) CPR 409 (TN SCDRC). 26. K. Mahabala Bhat v. K.Krishna, 2001 (3) CPR 137 (NCDRC). 27. K. Vasantha v. Teja Hospital, 1993 (1) CPR 20 (TN SCDRC). 28. Neena Gupta v. Kanwarjit Kochhar, 1993 CPR 489 (Chd- UT CDRC). 29. Katra Satyanarayana v. Lakshmi Nursing Home, 2003 (3) CLD 532; 2003 (2) CPJ 262: 2003 (2) CPR 219 (AP SCDRC). 30. T. Vani Devi v. Tugutla Lakshmi Alis Narasa Reddy 2003 (1) CLD 860: 2003 (1) CPJ 180: 2003 (1) CPR 325 (NCDRC). 31. Rohini Pratap Kabadi v. R. T. Kulkarni, 1996 (3) CPJ 441: 1990 (1) CPR 142 (KARN SCDRC). 32. Sau. Madhuri v. Rajendra and ors, ) CPJ 75 (NCDRC). 33. Rashmi B. Fadnavis v. Anr. V. Mumbai Ghrahak Panchayat & ors., 1996 (1) CPR 137: CPJ 21: 1998 (3) CPR 34 (NCDRC). 34. Urmila Upadhyay v. Anjani Kumar Pandey 2002 (3) CPR 240 (MP SCDRC). Cite this article: Kumar L. Obstetricians in labour room: emerging legal and ethical issues. Transworld Medical Journal. 1(1):

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