Chapter 18. How to be legally safe in medical practice?

Dr. Yeshwanth K. Amdekar, DCH, MD (Pediatrics), FIAP

Many doctors don’t need laws to tell them to act responsibly, few others try to find the ways around the laws

                                                                                                                        -Plato

Only thing more dangerous than ignorance is arrogance

                                                                                                                        -Albert Einstein

Moral duties of a doctor

Hippocratic Oath developed 2500 years ago by Greek physician who laid down moral principles of conduct for doctors. WHO developed Geneva Declaration and Medical Council of India brought in an act that has been amended few times as per the need with changing medical practices. It has widened the scope of expected conduct of a doctor. Every doctor is bound by such rules to follow medical ethics. Its main pillars are beneficence (do good), non-maleficence (do no harm), autonomy (patient’s right to make independent decisions), confidentiality (information communicated by patient is in confidence and should not be shared with others without patient’s permission), justice (equality of rights, fairness and morality). Medical Council Registration is an agreement to follow these rules and so we are all bound by the same.

What is expected of a doctor?

Every doctor is expected to act with reasonable care and skill appropriate to the standards set up by professional bodies. Standard of care varies as per the qualifications, experience and environment in which doctor practices. Irrespective of these variables, each doctor is expected to offer “care always, cure if possible”. Care involves action with empathy, concern for the patient, communication, counselling and documentation besides time management, good conduct, honesty, transparency, not to hide ignorance and not to run down peers.

Evolution of legality in medical practice

Ethical standards are based on human principles of right and wrong while legal standards are based on written law. Moral principles were set up by the community and every doctor was expected to follow the same in order to offer the best to a patient. It was left to individual doctors to follow and generations of doctors followed the same, till recently.

However, with changing scenarios in medical practice, few doctors strayed away from moral principles that made the Government of India to bring in Consumer protection act in the year 1986. According to this act, dissatisfied patient may complain to consumer forum at local level and if not satisfied with outcome, may go to state or further national level.

Indian Medical Association protested against such an act but finally it was implemented. It became necessary only because of few doctors not following moral principles laid down by competent medical bodies. We ourselves are responsible to bring our services into legality. Unfortunately, every law is likely to be misused as well.

What constitutes medical negligence?

Medical negligence is a breach of legal duty to care as per the expected standards that causes harm to the patient. It could be in the form of error of diagnosis, under or over investigations or treatment or deficiency in care. When doctor accepts a patient, it becomes an implied undertaking to offer standard care. It assumes that he has enough skills to handle such a patient. Every doctor is expected to act with reasonable care and skills. Error of judgment is considered as negligence only if other professionals in the same situation would not have done the same.

Only because something went wrong is not considered negligence if professional experts opine that adequate care was exercised whiletreating a patient. No doctor is supposed to give warranty of perfection of their skills or guarantee of cure. If action of a doctor is appropriate to the standard laid down by professional body, error in diagnosis or outcome is not a negligence.

How to be legally safe in medical practice?

Burden of proof of negligence is to be provided by a complainant. However, it is ideal that doctor can provide evidence of standard of care given to a patient. It is possible only if actions are not only communicated but also documented. Communication refers to offering relevant information about medical action while counselling is an act of guiding and supporting the patient to go through the illness in best possible way. Every doctor must follow these principles and document the same with attested signatures of both the parties. Documentation is the legal proof of having done it and without documentation; law considers it is not done. In serious situations where poor outcome is possible, it is best to record the counselling session on video. If doctor practices with principles of art and science of medicine, it builds a good patient-doctor relationship with attendant mutual trust. It forms the core of avoiding legality in medical practice.

Personal notes

I recall when medical practice was brought under consumer protection law, there was an objection raised by our association. It was argued that medicine is a profession and not a business. However, I had openly differed because many doctors were not behaving as professionalsand those who did adhere to professional standards had not to worry about consumer protection law. I formed a habit of writing short clinical notes and provisional diagnosis followed by drug prescription and general advice. It served dual purpose of ensuring rationality and also honesty. This habit of documentationalong with proper counselling automatically takes care of legal safety and shows transparency and accountability. Law does not punish a doctor even if he fails to cure a patient provided, he has followed standard guidelines as expected. I am aware consumer protection act may also be misused but such a risk is minimized by good behavior.

Take home message

We are now bound by law and not only by morality. However, if one follows moral principles, there is no worry about legality. Every law may be misused and so we must exercise utmost care. Documentation is all important that alone is considered as legal proof of your action. There is no need of defensive practice that itself may be questioned. Good doctor-patient relation with attendant mutual faith is the key to be legally safe.

Kauvery Hospital