Three landmark judgements that will change the practice of medicine

A doctor cannot delegate the duty of taking informed consent to his junior staff. ...

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Three landmark judgements that will change the practice of medicine
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Three landmark judgements that will change the practice of medicine

Medical Voice For Policy Change

MED talks with Dr KK Aggarwal

Practicing medicine has become very challenging today; more so because the doctor has to be equally well-versed in legal aspects as much as he is required to be proficient in his clinical knowledge. It all started with Anuradha Saha case with over 12 crore compensation that all doctors started talking about impact of medicolegal cases in clinical practice.

1.    A doctor cannot delegate the duty of taking informed consent to his junior staff.

Last year, the Supreme Court of Pennsylvania in Shinal vs Toms, 162 A.3d 429 (Pa. 2017) has held that,

“the duty to obtain informed consent belongs solely to the physician and that it is non-delegable… a physician may not delegate to others his or her obligation to provide sufficient information in order to obtain a patient's informed consent. Informed consent requires direct communication between physician and patient, and contemplates a back -and -forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent. The duty to obtain the patient's informed consent belongs solely to the physician.”

2.  Right to withhold information about risks associated with the proposed treatment 

The UK Supreme Court took quite the opposite stance to Samira Kohli vs Dr Prabha Manchanda on informed consent in the matter of Montgomery v Lanarkshire Health Board in 2015. Subsequent to this judgement, Bolam test has legally become an ineffective tool to establish standard of care in cases of alleged medical negligence. It allowed the doctor the right to withhold information about risks associated with the proposed treatment, if he believes that the particular treatment is the only hope for a cure for the patient. Post-Montgomery judgement, doctors in the UK have now to take care now that “the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”.

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The test of materiality would be whether “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it." “The “therapeutic exception” is not intended to enable doctors to prevent their patients from taking an informed decision. Rather, it is the doctor’s responsibility to explain to her patient why she considers that one of the available treatment options is medically preferable to the others, having taken care to ensure that her patient is aware of the considerations for and against each of them.” This ruling has also taken away the therapeutic privilege of the doctor.

3.    Dr Hadiza Bawa-Garba vs GMC

In the case of Dr Hadiza Bawa-Garba vs GMC, the UK Supreme Court charged Dr Hadiza Bawa-Garba and two nurses with manslaughter by gross negligence for the preventable death from sepsis of a 6-year-old boy with Down syndrome in 2011. Her name was erased from the medical register following an appeal by the GMC. She was held responsible for a sequence of failings.

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“She did not recognize the early features of sepsis in the child and as such appropriate antibiotic treatment was delayed.

She appeared not to recognize the implications of seriously deranged blood gas results and failed to fully communicate the implications to her consultant.

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When the child suffered a cardiac arrest there was a further problem as the patient was wrongly identified as another child for whom a DNACPR order applied.

Inquiry revealed that multiple errors and failings contributed to the mishap. No one cause could be found that led to the death of the patient.

Dr Bawa-Garba had only recently returned to work following maternity leave.

She was covering the work of another registrar, with her supervising consultant teaching on a different site, and the two junior colleagues, for whom she had supervisory responsibility, had no pediatric experience.

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She was expected to review unwell patients and perform procedures on six wards over four floors, field the GP calls and struggle without a functioning IT system.

The patient was shifted to a bed previously occupied by a patient with a DNR order; that change had been made without her knowledge. She was blamed for failing to recognize this.”

This judgement discounted system errors that may have contributed to the death of the patient. It also shows that “to err is human” can no longer be a defence, at least in the UK for the time being. But this is a case that is waiting to happen in India.

Dr KK Aggarwal  Padma Shri Awardee  Vice President CMAAO  President HCFIDr KK Aggarwal

Padma Shri Awardee

Vice President CMAAO

President HCFI

ज़रा हमारा यूट्यूब चैनल सब्सक्राइब करें

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