Malpractice & Negligence

          Are you worried that patient may accuse you of malpractice? Are you worried that you will be questioned in the court? Are you unsure if your documentation is incomplete and you will be charged for that? Perhaps this article about a legal concept of ‘Burden of Proof’ and importance of correct documentation may be helpful for you.
When someone lodges a complaint with the police or authorities, they need to provide some evidence regarding their allegation. In simple words, the complainant has to take the onus to substantiate the allegations made by facts. In legal terms, this is called “Burden of Proof”. The burden of proof of negligence, carelessness or insufficiency generally lies with the complainant. That means, in a medical setting the patient has to substantiate his/her allegations in order to prove that the complaint was valid. The Indian law requires higher standard of evidence to support allegations against a doctor. Thus, a patient needs to establish that his/her claim against the doctor ‘beyond the reasonable doubt’. Doctors must understand that though the ‘burden of proof’ is generally on the patients they are treating, it can shift on to them. The burden of proof shifts on the doctor in the cases where: In the actions or decisions made where patient or complainant has no free access, i.e. in operating room, ICUs. Where false or misleading communication from the doctor is evident. ‘Res ipsa loquitor’ (The thing speaks for itself), the cases in which the act speaks for itself. The Indian judicial system agrees that even after adopting all medical procedures as prescribed, a qualified doctor can commit an error. Thus, the law warrants that the complainant needs to prove that the doctor or facility was “intentionally malicious” in the treatment or did not provide the services of “acceptable standard and practice” even when they are available. There are certain strategies to prevent legal actions. Proper documentation is the most effective amongst all of them. In order to prevent shift of the ‘burden of proof’ on the doctor or the institution, following legal documents are highly recommended: Proper valid registration of the medical council: it is recommended that doctor always place a copy of certificate of registration visible. It is not mandatory in many states but highly recommended. Medical Council Act 1956, Section 1.4.1 reads 'Every physician shall display the registration number accorded to him by the State Medical Council / Medical Council of India in his clinic and in all his prescriptions, certificates, money receipts given to his patients.' Even though the word 'shall' is used in the law, it is better from clinicians' point of view to read ' shall'  as 'must'.  License for place of practice: Local authorities in many states issue license for place of practice. This license must be renewed periodically, which ensures complete legality of the practice. Patient reports and case files: Patient cases and reports should be well documented either physically or as electronic health record. Advance electronic health records ensure easy retrieval of patient information on demand. Case related legal documents: In many cases, additional legal documents such as informed consent, insurance documents are generated. These documents must be stored (at least for 3 years as per MCI act) and should not be released to anyone except the patient’s consent or legal order. The documents must be provided within 72 hours of the request from the patient or when ordered by authorities.  Maintaining proper documentation is not only required by law but also allows doctors to improve their legal protection. Some of the advantages are: Allows reviewing the cases time to time. Helps in improving the protocol for regular procedures. Helps in referrals to other specialties when essential. Sends patients the strong signal about doctor’s professionalism. Helps in thorough defense in the cases of false claims. The documentation is the critical part of any practice. Doctors should always keep in mind that The Law always helps those who keep up to date with documentary evidence. Hence, not maintaining documents or manipulation or tampering can prove costly to doctors. Not only documentation, but also, avoiding false claims, irresponsible advertisements and practicing your specialty is very important. These factors together help a doctor to establish as a ‘responsible and reasonable’ doctor and reduces the risk of having a burden of proof on them. Sources: Tiwari S., Tiwari M., Baldwa M., Kuthe A., Medicolegal Issues in Pediatric Practice, IAP, 2007.   SN Sahotra Vs New Ruby Hospital Chandigarh. TT Thomas Vs Smt. Elisa AIR 1987 Ker. HC 52: 1986 Ker.LT 1026. Dr. LB Joshi Vs Trimbak Bapu Godbole and another 1969 SCR 206-213. Is it important to remain proactive in maintaining documentation of your practice? Do you think documentation alone can help in legal battle?

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From Dr.M.Suryanarayanan