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Review Article

Preventing medico‑legal issues in clinical practice

Bevinahalli N. Raveesh, Ragavendra B. Nayak, Shivakumar F. Kumbar1
Department of Psychiatry, Dharwad Institute of Mental Health and Neurosciences, 1Anesthesiologist and Medico Legal
Consultant, Dharwad, Karnataka, India

Abstract

The medical profession is considered to be one of the noblest professions in the world. The practice of medicine is capable of rendering
noble service to humanity provided due care, sincerity, efficiency, and professional skill is observed by the doctors. However, today, the
patient–doctor relationship has almost diminished its fiduciary character and has become more formal and structured. Doctors are no
longer regarded as infallible and beyond questioning. Corporatization of health care has made it like any other business, and the medical
profession is increasingly being guided by the profit motive rather than that of service. On the other hand, a well‑publicized malpractice case
can ruin the doctor’s career and practice. The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of
cases many a time. It depends on the particular facts and circumstances of the case, and also the personal notions of the judge concerned
who is hearing the case. The axiom “you learn from your mistakes” is too little honored in healthcare. The best way to handle medico‑legal
issues is by preventing them, and this article tries to enumerate the preventive measures in safeguarding the doctor against negligence suit.

Key Words

Courts, doctors, medical negligence, prevention

For correspondence:
Dr. Bevinahalli N. Raveesh, Director, Dharwad Institute of Mental Health and Neurosciences, Dharwad ‑ 580 008, Karnataka, India.
E‑mail: raveesh6@yahoo.com

Ann Indian Acad Neurol 2016;19:S15‑20

Introduction care in deciding what treatment to give, and a duty of care

in the administration of that treatment.[3] A breach of any
Medical profession has its own ethical parameters and code of of these duties gives a right of action for negligence to the
conduct. However, negligence by doctors has to be determined patient. A  doctor should know that the plaintiff  (patient) in
by judges who are not trained in medical science. They rely on order to succeed in the action of establishing negligence must
experts’ opinion and decide on the basis of basic principles of show that the damage would not have occurred but for the
reasonableness and prudence. There is often a thin dividing line defendant’s (doctor) negligence; or the defendant’s negligence
between the three levels of negligence; lata culpa, gross neglect; materially contributed to or materially increased the risk of
levis culpa, ordinary neglect; and levissima culpa, slight neglect.[1] injury; or if the claim is for negligent nondisclosure, had he/
The level of negligence depends on the entire context – which she been adequately informed he/she would not have accepted
includes the place, the time, the individuals involved, and the treatment.[4]
the level of complications. The difference between medical
negligence and medical error is well‑settled, and the principles A victim can seek any of the following actions against a
are well‑founded being clearly laid down in numerous cases negligent medical professional.[5] Compensatory action: Seeking
by the Supreme Court.[2] Thus, there is a need to appreciate this monetary compensation before the civil courts, high court or
differentiation by the society so that doctors do not get indicted the consumer dispute redressal forum under the constitutional
for impractical reasons.
This is an open access article distributed under the terms of the
The duties which a doctor owes to his patients are a duty Creative Commons Attribution‑NonCommercial‑ShareAlike 3.0
of care in deciding whether to undertake the case, a duty of License, which allows others to remix, tweak, and build upon the
work non‑commercially, as long as the author is credited and the
Access this article online
new creations are licensed under the identical terms.
Quick Response Code:
Website:
For reprints contact: reprints@medknow.com
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How to cite this article: Raveesh BN, Nayak RB, Kumbar SF.
DOI: Preventing medico-legal issues in clinical practice. Ann Indian Acad
10.4103/0972-2327.192886 Neurol 2016;19:S15-20.
Received: 28-07-16, Revised: 30-08-16, Accepted: 04-09-16

© 2006 - 2016 Annals of Indian Academy of Neurology | Published by Wolters Kluwer - Medknow
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Raveesh, et al.: Medico-legal issues in clinical practice

law, law of torts/law of contract, and the Consumer Protection Failure to communicate
Act. Punitive action: Filing a criminal complaint against the Communicate clearly and effectively. Take time to ensure your
doctor under the Indian Penal Code (IPC). Disciplinary action: patient understands their diagnosis, treatment, and medication
Moving the professional bodies like Indian Medical Council/ plans, and then check their understanding by asking them to
State Medical Council seeking disciplinary action against the explain it back. This ensures instructions are properly followed
health‑care provider concerned. Recommendatory action: and demonstrates your care toward patient.[10]
Lodging complaint before the National/State Human Rights
Commission seeking compensation. Failure to diagnose
Failure to diagnose is the number one reason a physician gets
Accountability of Medical Professionals sued for medical malpractice. A  techno‑savvy patient may
give/explain/ask more information or psychologically less
It has been argued by the medical association in Shantha’s sophisticated patient may withhold the information and make
case that the medical practitioner should be kept out of the diagnosis difficult.
purview of the Consumer Protection Act 1986 as there is
scope for disciplinary action under the Medical Council Act Failure to identify a complication
for violating the code of medical ethics and for the breach of If a certain complication is a known risk, it should be on
duty to exercise reasonable care and skill in rendering medical the consent form for the medical procedure. However, the
service to the patient. The Supreme Court held that the medical consent form need not list every single complication that has
practitioners are not immune from a claim for damages for ever occurred for that procedure. Often there are mistakes
negligence. The fact that they are governed by the Medical in communicating the complications. If, for example, the
Council Act and are subject to the disciplinary control of the complication is known to occur 10% of the time during a given
medical council is no solace to the person who has suffered procedure but the consent form states that it occurs only 1% of
due to their negligence, and the right of such person to seek the time, then the consent form was wrong.
redress is not affected.[6]
Inadequate follow‑up
Accountability of Hospitals There are instances when tests results are not received by the
ordering physician. On other occasions, patients do not follow
through with tests as directed or the results come in are filed
Hospitals liability with respect to medical negligence can be
away before the physician reviews them, and the patient is not
direct liability or vicarious liability. Direct liability refers to the
briefed about the findings. It is essential that physicians and
deficiency of the hospital itself in providing safe and suitable
their staffs are able to track the status of these orders to make
environment for treatment as promised. Vicarious liability
sure that none are overlooked or forgotten. Another aspect of
means the liability of an employer for the negligent act of its
care needing better follow‑up involves referrals to specialists.
employees. An employer is responsible not only for his own
Every step has to be documented not only for preventing
acts of commission and omission but also for the negligence of medico‑legal issues but also for good patient care as well.[11]
its employees, so long as the act occurs within the course and
scope of their employment.[7]
Patient time
The time spent allowing the patient to fully explain his/her
Common Errors by Medical Professionals concern determines the physician’s ability to show concern,
empathy, and likeability. The longer the quality time a physician
Patients sue because of a feeling that they were not heard, that spends with the patient, the less likely will that physician be
their needs were not attended to, and that nobody seemed to sued.[12]
care, and as a result, a bad outcome resulted due to a mistake
or negligence.[8] Some of the instances where errors do happen Prescribing errors
by medical professionals are as follows: Before prescribing any medication, a physician should be
aware of all medications the patient is taking, including
Avoidance over‑the‑counter drugs and alternative medicines. Physicians
Compassionate gestures count. If a hospitalized patient has a should reinforce the importance of taking the medications
bad outcome, some physicians may avoid making rounds in only as prescribed. Patients should be advised that if they feel
the presence of relatives. It is important to let the patient and any medication is not having its intended effect, they should
their caregivers to know that as a treating doctor their problems immediately contact their physician. An important way to
are understood.[9] It is a good practice to maintain eye contact prevent inadvertent drug interactions is by working in concert
while addressing the patient and put a comforting hand on the with hospital pharmacists. Avoid handwriting prescriptions
individual’s arm (comforting touch). and utilize instead electronic medical recording with electronic
prescribing.
Defensive medicine
It is better to avoid practicing defensive medicine. Particularly Prevention of medical negligence
when affordability is an issue, victim is very likely to In recent times, medical science has witnessed exponential
complain. Moreover, it amounts to medical malpractice  (a technological progress. However, health‑care delivery remains
medical practitioner intentionally advising unwanted very much a human endeavor. Evidence shows that errors are
investigation). often the result of not from a lack of knowledge but from the

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mindless application of unexamined habits and the interference Clinical guidelines

of unexamined emotions.[13] Adherence to clinical guidelines is an effective way to improve
quality care and reduce variation in care. Clinical guidelines
Asset protection and indemnity have been systematically developed nationally and globally
It is vital to the survival of physicians to develop an asset to assist clinical decision‑making (practice of evidence‑based
protection plan, in addition to professional medical liability medicine). In medical negligence claims and in court, these
insurance. Not only does a malpractice lawsuit reduce the guidelines may act as a source of information, provided they
physician’s ability to make a living in medicine but also it are the product of a recognized body and are deemed reliable.[18]
can adversely impact or devastate both earned and invested They can be seen as normative standards and are used as
assets. There are two categories of professional indemnity explicit standards of care at the time of the index clinical event
such as personal or individual: This takes care of the risk of and also to assess the degree to which a questionable practice
liability of the doctor and his qualified assistant. Errors and was in line with accepted standards.[19]
omissions policy: This covers an institution, nursing home,
or hospital along with its staff members. If a doctor is the Documentation
owner of a hospital/institution, it is recommended to take If the treating doctor does not document something happened,
both individual and error policy as the hospital/institution it is difficult to prove it occurred. Charting accurately and
is a separate legal entity and often can be made a party to thoroughly can help to understand what happened to the
medico‑legal case.[7] patient. In addition, it will help in answering the questions
raised about duty of care when called for a deposition months
Burden of proof or years after an event has occurred. One cannot rely on their
The court has held the opinion that medical negligence has to memory for the facts. Regardless of the system used, the
be established and cannot be presumed.[14] In cases of medical purpose of documentation, from a legal perspective, is always
negligence, the patient must establish her/his claim against the to accurately and completely record the care given to patients,
doctor. The burden of proof is correspondingly greater on the as well as their response to that care. Documentation has legal
person who alleges negligence against a doctor. A doctor can credibility when it is contemporaneous, accurate, truthful, and
be held liable for negligence only if one can prove that she/he appropriate.[20]
is guilty of a failure that no doctor with ordinary skills would
be guilty of if acting with reasonable care. The burden of proof Empathy
of negligence, carelessness, or insufficiency generally lies Patients want to believe they are the most important person
with the complainant. The law requires a higher standard of that doctor will see that day and the doctor focuses 100% on
evidence than otherwise to support an allegation of negligence them. While this is not feasible, taking time to think like a
against a doctor. In Bimalesh Chatterjee case, it was held that patient and understand the condition from their perspective
the onus of proving negligence and the resultant deficiency in can help in becoming more empathetic physician and build
service was clearly on the complainant.[15] When the damage a better relationship. People are less likely to sue a physician
is too remote, it is not considered as an immediate result of with whom they have a positive relationship, even if something
medical negligence. goes wrong.[21]

Change in attitude Expectations

Change is the unchangeable truth in human life. A readiness to Medical malpractice lawsuits are not quick. It could take
change can prevent medical errors and improve the quality care years after an incident for a malpractice case to be resolved.
of a doctor. Self‑awareness and attitudinal changes have been Malpractice cases have to go through a long process including
found to be beneficial and recommended.[16] They are as follows: discovery, which is the investigation process. It could take
months for this phase alone. While in the midst of a malpractice
Always to do the best case, one needs to stay focused on other areas of your life. The
A treating doctor should not let fatigue or anything else gets support system needs to be mobilized and obsessing over
in the way of doing your work. While no one is perfect, many the case should be avoided. The medical malpractice stress
medical mistakes that end up in malpractice suits can be syndrome is real. It is experienced to some degree by all
avoided by being conscientious. physicians who are sued.

Apology Hospital policies

When physicians are honest about medical errors and apologize If the physician follows hospital policy regarding treatments
to the patient, the overall cost of medical malpractice is and protocols, they are less likely to get into trouble. If the
reduced in the end. However, it depends on the type of error physician diverts from regulations and hospital rules in
(gross and real), motive of the victim (nonmischievous), and managing the patient, the facility is less likely to defend.
situational influences (indefensible).
Keeping updated
Blaming others While most physicians stay up to date with the latest continued
One should refrain from blaming other health‑care providers medical education programs/conferences/workshops/
for adverse outcomes. The latter can happen despite everyone symposia, increasing advances in healthcare make it important
providing reasonable care. They can be called for evidence to know what is happening in the world of medical news. Often
either as a witness or as an expert.[17] medical news is reported in consumer publications and the

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Internet. Often patient may discuss what is in the social media, by the National Commission and by the Honorable Supreme
the ability to discuss about those news with your patients Court that a charge of professional negligence against a doctor
will reinforce their confidence even though they may not be stood on a different footing from a charge of negligence against
practiced by the treating doctor. a driver of a vehicle.[25,26] The IPC describes in following sections
below regarding this difference:
Merit of the case
Not everyone who sues has a case. There are many instances IPC Section 52:  (Good faith). Nothing is said to be done or
where a doctor is served with a lawsuit and the case either believed in “good faith” which is done or believed without due
never goes to trial or the doctor wins and is not found negligent. care and attention. Good faith implies genuine belief on the
part of the doctor that his/her act of omission or commission
Potential litigant would be in the best interest of the patient. The onus lies
A reasonable doctor should consider every patient as a potential on the defendant  (doctor) to prove that not only the good
litigant. It is to keep a doctor in constant awareness to stick intentions but also a reasonable skill and care are exercised
to a prescribed standard of care and avoid any adventurous for the discharge of duty.
attempt. A  doctor should not ignore any allegation in any
form (oral or written) and should be able to handle allegations IPC Section 80: (Accident in doing a lawful act). Nothing is an
with clear and firmness in an intelligent and sympathetic offense which is done by accident or misfortune and without
manner. any criminal intention or knowledge in the doing of a lawful
act in a lawful manner by lawful means and with proper care
Risk management and caution. Accident implies without the prior knowledge or
When a doctor is working for a hospital, the defendant doctor intention of causing the evil effect.
should notify risk management department of the hospital
whenever a notice is served. Risk management employs IPC Section 88:  (Act not intended to cause death, done by
lawyers who specialize in medical malpractice. The lawyer will consent in good faith for person’s benefit). Nothing which is
help the defendant doctor through the process.[22] Moreover, not intended to cause death is an offense by reason of any harm
becoming educated and understanding (preparedness) what which it may cause, or be intended by the doer to cause, or be
will happen help reduce anxiety. known by the doer to be likely to cause, to any person for whose
benefit it is done in good faith, and who has given a consent,
Contributory negligence whether express or implied, to suffer that harm, or to take the
When a patient by his/her own want of care, contributes to the risk of that harm. The section highlights the importance of
damage caused in the process of treatment then they are said to acting on good faith and with informed consent of the patient.
be guilty of contributory negligence. For example, if the patient
refusing to carry out the remedial treatment recommended by IPC Section 89: It is similar to IPC Section 88 with the point of
the doctor or indulging in activities forbidden by the doctor view of consent in case of children below 12 years and persons
further exacerbates the damage. When there is negligence of with a mental disorder where a guardian is authorized to give
two or more persons toward the patient resulting in a particular consent.
damage, it is called composite negligence. They are jointly or
severally held liable for the damages.[23] IPC Section 92: (Act done in good faith for benefit of a person
without consent). Nothing is an offense by reason of any
Informed consent harm which it may cause to a person for whose benefit it is
Informed consent means that the patient specifically consents done in good faith, even without that person’s consent, if the
to the proposed medical procedure. Informed consent is more circumstances are such that it is impossible for that person to
than just consent. For a patient to give informed consent to signify consent, or if that person is incapable of giving consent
a medical procedure, the health‑care provider must inform and has no guardian or other person in lawful charge of him/
the patient about all of the risks and complications that may her from whom it is possible to obtain consent in time for the
reasonably occur during that procedure, however, minor they thing to be done with benefit. In all such cases, it is prudent to
may be. Furthermore, the treating doctor should mention involve another senior colleague in making the decision and
about alternatives treatments available and what happens if no recording in detail the justification or circumstances under
treatment is done. Only after a patient is truly informed about which the decision was taken.
the potential risks of a medical procedure can a patient give
informed consent to the procedure.[24] The treating doctor should IPC Section 93:  (Communication made in good faith) No
understand that the patient has given consent to the procedure communication made in good faith is an offense by reason of
and not to all medical errors while on treatment. The failure to any harm to the person to whom it is made if it is made for the
obtain informed consent can be a form of medical negligence or benefit of that person. However, the doctor would be prudent
may give rise to a cause of action for medical battery. enough to ensure that the communication is based on verifiable
facts of the case, in a good faith for the benefit of the person it
Indian Penal Code was made and in view of the delicacy of the matter, conveyed
appropriately in the presence of spouse/relative/guardian.
No human being is perfect and even the most renowned
specialist could make a mistake in detecting or diagnosing the Criminal Procedure Code Section 174: This section does not
true nature of a disease. It has been held in different judgments preclude the right of aggrieved relatives of a deceased patient

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to prosecute the doctor for criminal liabilities under IPC Section apprehension that prevents medical people from discharging
304A (whoever causes the death of any person by doing any their duty to a suffering person.
rash or negligent act not amounting to culpable homicide
shall be punished with imprisonment of either description Conclusion
for a term, which may extend to 2 years, or with fine, or with
both), it prevents doctors from being arrested immediately The practice of medicine is capable of rendering great
after the unfortunate death of a patient. It also offers doctors service to the society provided due care, sincerity, efficiency,
an opportunity for being assessed by their peers for any of the and skill are observed by doctors. The cordial relationship
alleged professional lapses.[27] between doctor and patient has undergone drastic changes
due to the corporatization of medical profession, resulting in
Immunity of Government Doctors commercialization of the noble profession, much against the
letter and the spirit of the Hippocratic Oath. Although rapid
The National Commission by its judgment and order has held advancements in medical science and technology have proved
that persons who avail themselves of the facility of medical to be efficacious tools for the doctors in the better diagnosis
treatment in government hospitals are not “consumers” and and treatment of the patients, they have equally become tools
the said facility offered in the government hospitals cannot be for the commercial exploitation of the patients. Medical law
regarded as service “hired” for “consideration.” It has been is undergoing a massive change. The development of law
held that the payment of direct or indirect taxes by the public pertaining to professional misconduct and negligence is far
does not constitute “consideration” paid for hiring the services from satisfactory. The legislations are not adequate and do
rendered in the government hospitals. It has also been held that not cover the entire field of medical negligence. Lawsuits for
contribution made by a government employee in the Central medical negligence can be minimized or avoided by taking
Government Health Scheme or such other similar scheme does steps to keep patients satisfied, adhering to policies and
not make him a “consumer” within the meaning of the act.[28] procedures, developing patient‑centered care, and knowing
ways of defending against malpractice judgments. Having
Media trials comprehensive professional liability, insurance is a necessity
In the current situation, media is often referred as the fourth in the present‑day litigious society.
pillar of the democracy. However, it has no right to present the
facts of a case in an unfair and prejudicial manner. A doctor Financial support and sponsorship
cannot become a victim of malicious or defamatory reporting. Nil.
A doctor should not be silent and should rebut the allegations.
The doctor can take help of their professional association to Conflicts of interest
convey the facts and support to resist a trail by media.[7] There are no conflicts of interest.

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