MEDICO - LEGAL

ISSUES IN OBS & GYN.

Presenters: Nsenga and Birungi.

Tutor : Ms. Nakimuli.

20th April 2011.
Outline
 Introduction
 Criminal and Civil liability.
 Common causes of litigations
 Consent
 Expert witness
 Defendant.
 Effects of litigation on medical practice
Introduction
 Litigation has become a major feature of
medical practice over the past two decades.
 Even minor deviations from accepted
standards of care have the potential to result
in adverse legal judgments.

 Thus, physicians must continually

incorporate medical advances into current
practice.
Introduction
 Complications that were once viewed as
acceptable hazards of common surgical
procedures are now commonly the source of
litigation.

 A complication is increasingly taken as

evidence of substandard practice.

 Therefore it is imperative to minimize risks of

complications!
Introduction- Definition
 Medical Litigation :
entails legal action taken by an individual or
a group of individuals, usually patients,
against hospitals, health service provider or
health professionals in respect of alleged
inadequacies in the provision of health care.
Why do Patients complain?

 Unexpected adverse outcomes

 Unexpected cost

 Unmet expectations
Why are doctors sued?
 Predisposing factors: rudeness, delays
inattentiveness, miscommunication, apathy

 Precipitating factors: adverse outcomes,

iatrogenic failures, mistakes, system errors
 Value of Open Clinical Negligence
Claims by Speciality, at 31/3/07

1%
18%
4% Obstetrics
Paediatrics
4%
A/E
Orthopaedics
10% 63% Gynaecology
Others

63% = £4,490M
Open Obstetric Claims by Cause,
31/3/07

%
 Cerebral Palsy 42.7
 Other Brain Damage 11.6
 Erb’s Palsy 10.3
 Unnecessary Pain 4.3
 Fatality 4.1
 Additional Operation(s) 3.9
 Stillborn 2.2
 Other 20.9
Open Obstetric Claims by Cause,
31/3/07
%
– Failure to respond to abnormal FHR 20.5
– Failure to recognise complication 8.4
– Failure to monitor 1st stage of labour 8.0
– Failure to monitor 2nd stage of labour 7.8
– Fail/Delayed Treatment 7.7
– Fail/Delayed Diagnosis 6.9
– Application of excess force 5.2
– Other 35.5
 Open Gynaecology Claims by Injury,
31/3/07
%
– Additional/unnecessary operation 24.4
– Unnecessary pain 13.9
– Bowel damage 6.8
– Bladder damage 4.9
– Psychiatric/psychological damage 4.7
– Infertility 4.7
– Unwanted pregnancy 4.3
– Cancer 4.0
– Other 32.3
 What motivates patients to sue?

 Adverse outcomes in 3% of admissions

 1 in 4 adverse outcomes (1% of total ) due to
negligence
 Only 12 % of patients who suffered negligence
filed a lawsuit
 2 out of 3 claims come from patients with no
adverse outcome or an adverse outcome not due
to negligence
70% of litigation is related to poor
communication

 Deserted

 Devalued

 Lack of information

 Lack of understanding
 To correct deficient standards of care

 To find out what happened and why

 To enforce accountability

 Compensation for accrued and future loss

What expectations the patients have of
doctors in the medical encounter?
 The personal qualities
 The quality of treatment received
 The size of the bill
 Time spent with patient
 Doctor availability
 Competence
 Treatment from ancillary staff
 Amount of information received
Expectations can be realistic OR
unrealistic

Realistic expectations are:-

 Adequate time
 Doctor interested
 Office staff helpful
 Doctor’s competence
 Treated respectfully
 Will be listened to
Unrealistic expectations

 Unlimited time
 Available 24/7
 Office staff will do all paperwork
 All treatments will be 100% successful with
no side effects
 All issues will be addressed at one
consultation
Negative communication behavior by
doctors increases litigious intent even
where there has been no adverse outcome

One study found that greater than 50%

of 263 patients who sued their doctor
claimed they were so turned off by the
doctor that they wanted to sue him/her
before the alleged event occurred
First impression counts

 Patients start formulating opinions

about the doctor before they have
settled in to the chair, the staff, the
practice and the greeting
Greeting the patient

 Maintain eye contact

 Welcome the patient

 Ensure eye levels are same

 Make a professional connection

Interactional behavior
NON SUED -
 Asked the patient’s opinion
 Patient perceived that sufficient time
was spent
 Laughed
 Explained the process of the
consultation
SUED –
 Patient felt rushed
 Received no explanation
 Less time spent
 Felt ignored
Importance of non-verbal
communication

 80% of all communication is non-verbal

 Doctors who are competent with verbal
communication have a higher patient
satisfaction score
 Poor body language in emotionally
charged events can lead to
doctor/patient relationship breakdown
Patients can determine change in a
clinician s emotion from a facial
expressions in 375 milliseconds

 Doctors with good non-verbal

communicatons skills are rated as more
caring by their patients
 RIGHTS OF PATIENTS

 1.     Right to give consent to diagnostic and

treatment procedures
 2.     Right to religious belief
 3.     Right of privacy
 4.     Right to disclosure of information
 5.     Right to confidential information
 6.     Right to choose his physician
 7.     Right of treatment
 Right to refuse necessary treatments
 RIGHT TO GIVE CONSENT TO DIANOSTIC
PROCEDURES

 Obligations of the Physician to Inform the Patient:

1. Diagnosis
2. General nature of the contemplated procedure
3.   Risk involved
4.   Prospect of success
5.   Potential danger if not applied
6.    Alternative methods of treatment
  
 “….patient is the final arbiter of what must be done
with his body.”
Bases of Consent
 1. The physician-patient relationship is
fiduciary in nature.
 2.   Patient’s right to self-determination.
 3. Contractual relationship.
 Purposes
 1.To protect the patient from
unnecessary/unwarranted procedure
applied to him without knowledge
 2. To protect the physician from any
consequences for failure to comply with
legal requirements
 Instances When Consent Is Not
Necessary

 1. In cases of emergency, there is an “implied

consent” or the physician is “privilege because he
is reasonably entitled to assume consent

 2. When the law made it compulsory for everyone to

submit to the procedure
Requisites of a Valid Consent
 1.   Informed or enlightened consent
 2.   Voluntary
 3.   Subject matter must be legal
Forms of consent
 1.   Expressed consent – written or oral
 2.   Implied consent may be deduced from
the conduct of the patient
Scope of the Consent

 1. General or Blanket consent

 2. Limited or conditional consent
 3. Non-liability or exculpatory clause
 
 Quantum of Information Necessary to Form the
Basis of a Valid Consent

 1.    Nature of his condition;

 2.    Natured of proposed treatment or procedure;
 3.    Possible alternative methods;
 4.    Risk involved;
 5. Chances of success or failure

 Consent must be given freely or voluntarily

 
 Persons Who Can Give consent

• 1.    Adult sane stable Patient ;

• 2.   If patient is minor, consent must be obtained from
the parents;
• 3. In the absence of the parents, consent of the
grandparents must be obtained, paternal grandparents
having preference;
• 4.  In the absence of parents and grandparents, eldest
brother or sister, provided one is of age and not
disqualified by law to give consent;
• 5.  Other person who may give consent having
substitute parental authority.
 LIABILITIES OF PHYSICIAN

 ADMINISTRATIVE

• Penalty: reprimand, suspension, to revocation of license.

 CRIMINAL
• An act or omission which constitute a crime by the
physician;
• Penalty: imprisonment and/or fine.  
 CIVIL
• Gynaecologist’s act or omission as a breach of the contract.
“ Every person criminally liable is civilly liable.”Penalty:
damages
ADMINISTRATIVE LIABILITIES

 
 Administrative Due Process:
• 1.   Right to hearing;
• 2.   Tribunal must consider the evidence presented;
• 3.   Decision must have something to support itself;
• 4.   Evidence must be substantial;
• 5.   Decision must be based on the evidence adduced
at the hearing, or at least contained in the record and
disclosed to the parties;
• 6.   The Board or its judges must act on its or their
independent consideration of the facts and the law of
the case, and not simply accept the views of a
subordinate in arriving at a decision.
   Personal Disqualifications:

• 1.    Immoral or dishonorable conduct;

• 2.    Insanity;
• 3.    Gross negligence, ignorance or incompetence resulting in an
injury to or death of the patient;
• 4.    Addiction to alcoholic beverages or to any habit-forming drug
rendering him incompetent to practice medicine.
•  
  Unprofessional Conduct

• 1. False or extravagant or unethical advertisements wherein

other things than his name, profession, limitation of practice,
clinic hours, office and home address, are mentioned;
• 2. Issuing any statement or spreading any news or rumor
which is derogatory to the character and reputation of another
physician without justification;
• 3. Violation of any of the Code of Ethics as approved by the PMA.
CRIMINAL LIABILITIES

 A criminal act is an outraged to the sovereignty of the

State so it must be instituted in the name of the
sovereign people as party-plaintiff (People of the
Philippines vs X) 

 Quantum of evidence is proof beyond reasonable

doubt. This does not mean absolute certainty as
excluding possibility of error but only mean moral
certainty, or that degree which produces conviction
in an unprejudiced mind (Rule 133, Sec. 2, Rules of
Court) 
  Criminal Acts:


• 1.  Conviction by a court of competent jurisdiction of

any criminal offense involving moral turpitude
• 2.  Fraud in the acquisition of the certificate of
registration;
• 3.  Performance of or aiding in any criminal abortion
• 4.  Knowingly issuing false medical certificate;
• 5. Aiding or acting as dummy of an unqualified or
unregistered person to practice medicine. 
 MEDICAL MALPRACTICE
It may be defined as bad or unskillful practice of medicine resulting to injury
of the patient or failure on the part of the physician to exercise the degree
of care, skill and diligence, as to treatment in a manner contrary to
accepted standards of medicine resulting to injury to the patient. 

 Elements:
 1.  The physician has a duty to the patient;
 2. The physician failed to perform such duty to his
patient;
 3.  As a consequence of the failure, injury was sustained
by the patient;
 4.  The failure of the physician is the proximate cause
of the injury sustained by the patient.
 
 Criminal medical malpractice, the act or omission complained of must
be punishable by law at the time of commission or omission.
 SPECIFIC ACTS OR OMISSIONS WHICH CONSTITUTE MEDICAL MALPRACTICE

 1.   Failure to take medical history;

 2.   Failure to examine or make a careful and adequate
examination;
 3.   Non-referral of the patient to a specialist;
 4.   Failure to consult prior physicians for previous
management;
 5.   Non-referral of patient to a hospital with
equipments and trained personnel;
 6.   Failure to use the appropriate diagnostic test;
 7.   Failure to diagnose infections;
 8.   Treatment resulting to addiction;
 9.   Abandonment of patients;
 10.     Failure to give proper instructions;
 11. Failure to institute the proper
prophylactic treatment;
 12.    Errors in blood transfusion;
 13.    Liabilities in administration of drugs;
 14.    Product liabilities of manufacturer;
 15. Premature discharge.
Standard of Care in Emergencies

 -     
    A physician cannot be held to the same conduct
as one who had an opportunity to reflect, even
though it later appears that he made a wrong
decision yet prudent at that time.
 DELEGATION OF A PHYSICIAN’S DUTIES

 Requisites for a Valid Delegation

 1.    When such duty can be delegated which will depend on
the circumstances of the case, nature of the duty to be
delegated, and the training and experience of the person to
whom such duty is to be delegated.;

2. The person to whom such duty is delegated must be

competent to perform such duty;
3.    Proper instructions must be given to the person who will
perform the delegated duty;
 The patient consented expressly or impliedly such
delegation of duty.
Liability for Injuries in the Negligent
Performance of the Delegated Duties

 The person performing the delegated

duty cannot be held liable for any
untoward or unexpected effects of his
act if he had complied with all the
requirements of a delegated duty and
has exercised care and diligence in
such execution.
 What to do when an adverse event
occurs

 Inform the patient as soon as possible

 If a letter of complaint is received, forward a reply
promptly
 Supply information which is detailed and factual
but contains neither positive nor negative “Spin”
 Self flagellations by the doctor or the hospital
involved is inappropriate, but so is denial.
 What to do when an adverse event
occurs continued -
 Acknowledge the fact (I appreciate how
distressing this is to you)
 Express sincere regret and genuine concern
for the patient’s welfare (I am sorry this has
happened to you)
 Do not admit liability like I am sorry I did this
to you . It is inappropriate to admit liability in
the heat of the moment, calmer reflection
and after seeking advice, may lead to the
conclusion that there is no liability.
 Doctors can reduce risk by:-

 Paying close attention to the quality of

their human interactions
 Addressing unrealistic expectations
 Making good clinical notes
 Treating staff and colleagues with respect
and care
 Avoiding criticism of the care provided by
another professional
 Doctors can reduce risk by
continued:-
 People are reluctant to sue someone
they like
 Patients don’t care how much you know
until they know how much you CARE
 Proper delegation.
 Consent
 Protocals.
 Referral.
Prevention involves these key elements

 Understand the motivating factor why

patients sue
 Intersectional skills
 Managing expectations
 Making a connection
 Interacting with staff and colleagues
 Documentation
 Managing adverse outcomes
 THE PHYSICIAN AS AN EXPERT WITNESS

 An EXPERT WITNESS is one

who has the capacity to draw
inference from the facts which a
court would not be competent
to draw.
 To warrant the use of expert testimony, two elements
are required:

 1.The subject of inference must be so distinctly related to some science,

profession, business or occupation as to be beyond the knowledge of
average layman; and
 2.The witness must have such skill, knowledge or experience in that
field or calling as to make it appear that his
 3.Opinion or reference will probably aid the trier of facts in his search
for the truth.
 
 An OPINION maybe defined as the belief, judgment,
inference, or sentiment formed by the mind with regard
to things, person or events perceived by a witness. An
opinion in the legal sense is something more than mere
speculation or conjecture.
 Sec. 48, Rule 130, Rules of Court
 General rule - The opinion of a witness is not admissible,
except as indicated by the Rules.
  
 Sec. 49, Rule 130, Rules of Court
 Opinion of Expert Witness - The opinion of a witness on a
matter requiring special knowledge, skill, experience or training
which he is shown to possess, may be received in evidence.
  
 Sec. 50, Rule 130, Rules of Court
 Opinion of Ordinary Witness – The opinion of a witness for
which proper basis is given, may be received in evidence
regarding –
• a)    the identity of a person about whom he has adequate knowledge;
• b)   A handwriting with which he has sufficient familiarity; and
• c)  The mental sanity of a person with whom he is sufficiently acquainted.
 The witness may also testify on his impressions of
 emotion, behavior, condition or appearance of a person.
ATTENDANCE OF A MEDICAL WITNESS IN COURT

 Sec. 1, Rule 21, Rules of Court

 “Subpoena is a process directed to a person
requiring him to attend and to testify at the hearing or the
trial of an action, or at any investigation conducted by
competent authority, or for the taking of his deposition. It
may also require him to bring with him books, documents,
or other things under his control, in which case it is called
subpoena duces tecum.”
  
When a Medical Witness Need Not Comply
With a Subpoena

 1.    The Court issuing the subpoena has no jurisdiction

over the subject matter of the case;
 2.    When the place of residence is more than 100
kilometers from the court issuing the subpoena. 
• Sec. 10, Art.21, Rules of Court – “ The provisions of sections 8 and 9
0f this rule (Compelling attendance and Contempt) shall not apply to a
witness who resides more than 100 km from his residence to the place
where he is to testify by the ordinary course of travel, or to a detention
prisoner if no permission of the court in which his case is pending was
obtained.”
 3.    When the doctor is attending to an emergency and no
one is available and competent enough to be his substitute
to attend to such emergency.
 4.    On account of illness incapacitating him to attend.
 Sec. 3, Rule 132, Rules of Court, Rights and
Obligations of a Witness

 “A witness must answer questions, although his answers

may tend to establish a claim against him. However, it is
the right of a witness:
 
i. To be protected from irrelevant, improper questions and from harsh
or insulting demeanor;
ii. Not to be detained longer than the interests of justice require;
iii.Not to be examined except only as to matters pertinent to the issue;
iv.Not to give an answer which will tend to subject him to a penalty
for an offense unless otherwise provided by law; or
v.  Not to give an answer which will tend to degrade his reputation.
Instances when the medical witness may not be
compelled to answer questions in court
 1.  It will tend to subject him to punishment for an offense;
 Incriminatory questions may subject the witness to
punishment or disclosure of which would form a necessary
and essential part of a crime.

Sec. 17, Art. III, Phil Constitution – “No person shall be compelled to be
witness against himself.

 2. It will degrade his character, except when such

degradation of character is the very fact at issue;
 
 A medical witness may refer to memoranda, notes or other
pertinent papers:
Impeachment of Medical Testimony

 1.By contradicting testimonies by others of his own class

or by any other competent witnesses;
 2.By showing that the medical witness is interested in the
outcome of the case or bias;
 3.By an inconsistent statement made at another time;
 4. By not expressing the opinion testified to at the time
when such expression might reasonably had been
expected; and
 When the scientific treatise which he relies on as the
basis of his opinion does not sustain him.
 CONTEMPT

 Sec. 9, Rule 21, Rules of Court

 Contempt – “ Failure by any person without adequate cause to
obey a subpoena served upon him shall be deemed a contempt of
court from which the subpoena is issued. If the subpoena was not
issued by a court, the disobedience thereto shall be punished in
accordance with the applicable law or Rule.”

 Sec. 1, Rule 71, Rules of Court

 Direct Contempt Punished Summarily – “A person guilty of
misbehavior in the presence of or so near a court as to obstruct or
interrupt the proceedings before the same, including disrespect
toward the court, offensive personalities toward others, refusal to be
sworn or to answer as witness, or to subscribe an affidavit or
deposition when lawfully required to do so, may be summarily
adjudged in contempt by such court…xxx.”
 Sec. 3, Rule 71, Rules of Court
 Indirect contempt To Be Punished After Charged and Hearing –
“After a charge in writing has been filed, and an opportunity
given to the respondent to comment thereon within such period…
xxx…., a person guilty of any of the following acts may be
punished for indirect contempt:
• 1.  Misbehavior of an officer of a court in the performance of his official duties or
in his official transactions;
• 2.  Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court….;
• 3. Any abuse of or any unlawful interference with the process or proceedings of a
court not constituting direct contempt…;
• 4. Any improper conduct tending directly or indirectly to impede, obstruct, or
degrade the administration of justice;
• 5.  Assuming to be an attorney…..;
• 6.  The rescue of a person or property in the custody of an officer by virtue of an
order.
 But nothing in this section shall be construed as to prevent the
court from issuing process to bring the respondent to the court, or
from holding him in custody pending such proceedings.”
So lets do our best and NOT get SUED