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Year : 2007  |  Volume : 51  |  Issue : 4  |  Page : 344 Table of Contents     

Medicolegal aspects of critical care medicine

MD, DA, Professor ofAnaesthesiology, Thanjavur Medical College, Thanjavur, Tamilnadu, India

Date of Web Publication20-Mar-2010

Correspondence Address:
A L Meenakshi Sundaram
Thanjavur Medical College, Thanjavur, Tamilnadu
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Source of Support: None, Conflict of Interest: None

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Keywords: Medicolegal, ICU, Critical care

How to cite this article:
Meenakshi Sundaram A L. Medicolegal aspects of critical care medicine. Indian J Anaesth 2007;51:344

How to cite this URL:
Meenakshi Sundaram A L. Medicolegal aspects of critical care medicine. Indian J Anaesth [serial online] 2007 [cited 2021 Feb 27];51:344. Available from: https://www.ijaweb.org/text.asp?2007/51/4/344/61163

   Introduction Top

Ethics in critical care is based on four fundamental principles 1. The physician's obligation to provide treat­ment for the patients 2.The duty to avoid harm 3. Re­spect for patient's right to self determination and 4. Justi­fiable allocation of health care resources, but this chapter discusses three areas in which legal issues are likely to emerge. The topics are discussed according to a medical chronology- transport, acute care, rehabilitation and long term planning. The legal concerns may not neatly fit into any time sequence nor does each patient with critical ill­ness (and also the doctor) face every legal problem dis­cussed subsequently. The following discussion uses stat­utes and legal cases for illustrative purposes only and is not a substitute for seeking competent legal advice.

   Transport Top

Majority of the doctors were worried in transport­ing the accident and critically ill victims for fear of the legal process. But in the strictest sense, the law requires the victims to be transported even by the non medical public, and if not, it amounts to negligence. ["Negligence is the omission to do something which a reasonable man would do, or doing something which a prudent and rea­sonable man would not do"….Alderson B in Blyth v Bir­mingham Co. (1856)11.Exch 781 784]The transport could be accomplished with medicos or even with paramedical people. If the doctor is present during the transport it would be legally tenable to certify death, in case if it occurs. Even if the patient dies during transport, the law just re­quires the matter to be informed to the police personnel, if the death is under suspicious circumstances or if it is a medico legal patient. Naturally as a responsible law abid­ing citizen, we have to oblige the summons from the court as and when necessary!

   Entry in the case sheet Top

While recording the case sheet or accident register, utmost care has to be exercised, as it would be the valid legal document in the court of law. The person from whom the history is elicited is to be very clearly stated as the version from the person other than the patient is a statement whereas from the dying patient it is the dying declaration!

The conscious status of the patient is to be men­tioned in an undoubted way as the court decides the reli­ability of the statement only on that score.

   Goals of care and decision making Top

Modern medicine has embraced the concept of shared decision making between patients and their physi­cians. This approach is often more complicated in the ICU, because patients are frequently too ill to make deci­sions. Patients have an ethical (and in many places, a legal) right to determine the goals of their medical care. An individual patient's wishes regarding future medical care can be made known in advance which is termed as "advance directives".

Advance directives can be in verbal or in written format and they may be very specific or general. In this process, the patient determines what kind of care he likes to have in a hypothetical setting e.g. any future medical problem. These directives are effective only if the patient is incompetent at that particular point of time. If he is capable of making his wishes known to the doctor the advance directive would not be valid. For example, if a patient awakes after a surgical procedure or after resus­citation and is deemed competent, he should make his wishes known and advance directives are not valid.

Advance directives have ethical authority, but the reliability is often suspected (whether it was really given by the patient and whether the patient has understood the problem fully or the directives apply to the current ill­ness!). So the day -to-day management would be diffi­cult with that and the ICU physician is left to work with a surrogate to make decisions for a patient who is too sick to participate in discussions.

   Surrogate decision making Top

When patients lose their ability to make treatment decisions, some other reasonable person has to take deci­sions on behalf of the patient. Usually "next of kin" (legal heir) would be the surrogate decision maker. However, the legal status varies from country to country and the individual may have no legal or ethical grounds to assume this role. In India, the typical hierarchy sequence is (1) Spouse (2) Eldest child (3) Next child (4) Parent (5) Sib­ling. In addition to legal standing the surrogate should have some moral standing also. In United States even surro­gate could be named in written format as advance direc­tive (power of attorney for health care).

When patients lose their ability to make treatment decisions they may also lose the ability to make other per­sonal decisions such as signing contracts, conducting busi­ness, and spending money. Like medical treatment deci­sions, the personal decisions are carried out by the criti­cally ill patient unless that person becomes incompetent.

   Surrogate appointed by court Top

In western countries, if a court adjudicates a patient to be unable to appreciate other personal decisions, some­one must be appointed as the lawful representative. It is not sufficient that a spouse, friend or health care provider take over these responsibilities. The better course of ac­tion is the court appointing a person legally responsible to assume the personal decision making. The court proce­dure ensures that an appropriate person will be named, his authority clearly delineated, and his decisions accounted for. Most courts require periodic accounting to the court and make the appointment subject to removal for acts of bad faith or fraudulence. Different jurisdictions provide different titles: guardians of the property, conservator, trustee, receiver; but the effect is to guard the incompe­tent person and his or her assets while providing protec­tion to the person legally authorized to make decisions on behalf of the critically ill patient. Since ICU patients re­quire extensive medical treatment, payment for medical services is crucial. When conflicts arise, legal consulta­tion follows.

   Informed consent Top

Autonomy is one of the core principles that define the relationship between the doctor and the patient. Au­tonomy requires respect for the values and wishes of the individual and the informed consent has three critical ele­ments: the consenting person must be competent, informed and be able to make decisions. In an emergency, actual informed consent for medical treatment must be obtained before the treatment is rendered.

As soon as medical personnel provide emergency treatment to a person with multiple injuries or in a state of coma, the law is involved with the issue of informed consent. Because patients who are unable to respond to medical personnel as a result of their injury, informed consent is dealt with in a common sense fashion. The law finds that the injured party implicitly gives his or her consent to provide the necessary medical treatment (Im­plied consent).

   Implied consent Top

It allows medical treatment to be rendered without the provider fearing liability (i.e., committing an unlawful battery) for giving treatment without a patient's authori­zation. For implied consent to apply, the injured party must require emergency treatment to save life or limb and the treatment rendered must be so limited. Once the emer­gency treatment is no longer required, the doctrine of im­plied consent does not govern.

   Transfer of the patient to higher institution Top

In Supreme Court criminal Writ Petition No. 270 of 1988 it is held that "It is the duty of the medical men to render all the help to the patient which he could and also see that the person reaches the proper expert as early as possible". So it is the duty of the doctor to render all pos­sible help first and then transfer the patient.

In Writ Petition No. 796 of 1992 The Supreme Court held that before transfer three obligations are imposed 1.screening the patient 2.stabilising the patient's condition 3.transfer or discharge of the patient for better treatment.

In First Appeal No. 162 of 1991 The National Com­mission on the issue of transfer in haste observed, "Hos­pitals should not avoid a terminally ill patient breathing his last while being under its care".

State Commission of Kerala (No.19 of 1990) and West Bengal (No.101/0/1997) held that transfer in a car is not negligent if all possible assistance were given to the patient while transportation.

State Commission of Maharashtra (No.219 of 1995) awarded compensation of Rs.4,10,000 from the anaesthesiologist for transporting the patient in an ambu­lance without oxygen.

   Insurance coverage Top

Injured patients who require lengthy hospitalization, rehabilitation care, and outpatient therapies may pay for their treatment through their health care insurance, if they are insured. But some insurance companies only reim­burse the expenditure already incurred. If the diseased becomes deceased then legal heirs have to pay the cost of the treatment. Even if the patient dies during transport or in the hospital, if the charges are not paid, the hospitals can go for a civil suit to recover the charges.

   Personal injury compensation litigation Top

Traumatic injuries are often a result of a motor ve­hicle accident, sports injury, or a defective product. Under many of these circumstances, another person or entity may be liable for the injury to the patient. A personal injury law­suit seeks a judicial determination that a party (defendant) was negligent, caused the injury, and should compensate the injured party. If the defendant has insurance, payment to the injured party comes from the liability insurance car­rier when the matter is settled or ends in judgment in favor of the injured party. Once payment is received, it is unre­stricted and can be used by the injured party for appropri­ate medical treatment. If personal insurance and third party insurance are applicable, then strictly speaking, third party insurer would compensate over and above the personal insurance limit, if the cost exceeds. Because of the limita­tions,eithermonetaryceilingorcontractualdefinitions,health care insurance would compensate only up to some limit and not the full medical expense.

   Expert testimony Top

While giving evidence as expert in the court of law the doctor should render evidence to convince opposing counsel, insurers, and jurors regarding injury and illness. For example, expert evidence about CT findings, x-ray films, EEG, whether abnormal or not, must be explained to the unknowing; otherwise, incorrect decisions regard­ing compensation will be made. Basic medical evidence about anatomy and how an injury occurs even without outward signs must be explained. The significance of nega­tive findings on CT and skull x-ray films must also be provided. Otherwise, injured persons, especially those with so called "minor or moderate" injury, will not receive just compensation

   Determination of death by neurological criteria Top

Three essential components of neurological death are irreversible coma or unresponsiveness, absence of brainstem reflexes and apnea. (hypothermia, drug induced coma, severe metabolic problem are to be ruled out).This determination is essential legally for the purpose of organ donation.

   Postmortem Top

The State Commission of Gujarat (No 77 of 1993) held that "It is the duty of the medical officers to prove or rule out the cause of death for which they are allegedly responsible. Only avenue open to them was postmortem. It is no valid excuse to say that the relatives declined postmortem or they signed their unwillingness".

In Petition No84 of 1991 National Commission ob­served, "when the cause of death is not in doubt there was no occasion for the hospital authorities to suggest autopsy. It may be noted that according to Indian Cultural beliefs and cremation practices, people are sentimentally exposed to a dead body being cut up. In fact generally autopsy is resisted."

In trauma cases postmortem is compulsory.

   Conclusion Top

Legal principles often help the people who work in good faith like "Good Samaritans". Good Samaritan guide­lines are in existence in the United States of America and were enacted to protect the doctors who rendered medi­cal assistance to accident victims in field conditions. In India similar statues are not in existence but the principles are very much recognized.

Any anaesthesiologist who helps in the capacity of Good Samaritan with good faith ("anything done hon­estly with good intention" in the legal parlance) can never be held responsible for the death of the critically ill victim provided what he does for the resuscitation is not 'palpa­bly wrong.


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