GOING ON LEAVE OR VACATION?  

PRE-EMPT MEDICO-LEGAL PROBLEMS

By Dr. Lalit Kapoor

There are times when we have to take a break in our practice for various reasons and for varying periods ---whether to attend a conference, to go for a family marriage or for a well-deserved vacation with the family, and so on.   But it is prudent to take a few elementary precautions before you proceed. This will help you enjoy your break much better and ensure there are no post-vacation shocks in the form of malpractice issues.

 A few examples will suffice to convey the intent of this presentation.

A Gynecologist planned to attend a 2-day conference in a neighboring city. The patient on whom she had done LSCS about 5 days earlier had recovered uneventfully and was to be discharged the following morning. Prior to her departure,  she examined the patient and personally gave detailed instructions to the patient for precautions, medications, and follow-up. 

The next day, while at the conference, the gynecologist received a call from the relatives of the patient on her mobile that the patient was vomiting. The doctor advised some medicines on the phone. However the same evening the vomiting and fever of the patient aggravated and hence the doctor advised that the patient be admitted to her hospital following which she gave instructions to the nurses to start some medications.  She also requested a gynecologist colleague to have a look at the patient.  Despite carrying out the treatment advised by this colleague, the patient continued to deteriorate and in the early hours of the morning was shifted to a larger center. The patient passed away the next day. The clinical diagnosis corroborated by the PM report was a pulmonary embolism.

Following this, the relatives of the patient filed a criminal case of negligence against the doctor and it attracted a lot of media attention and public outrage. The doctor was charged under section 304 (part 2) instead of the less harsh section 304A. To understand the difference I need to write another blog which I will do shortly.

But briefly, the section under which she was charged was a non-bailable section with harsher punishment. The charge is called: “Culpable homicide not amounting to murder”. The key justification for applying this section was the allegation that there was no qualified doctor attending to the patient most of the time in her absence and the treatment was done by nurses as per her telephonic instructions. As a result, there was an indefensible delay in appropriate treatment and transfer of the patient leading to her death.

I will not go into the details of the harrowing time the gynecologist faced thereafter. But the limited purpose of my reference to this case is to highlight the consequences of not taking   precautions, as suggested by me below, before taking a break in your practice.

 

A surgeon who was attached to a large corporate hospital in Mumbai performed a mesh hernioplasty in a case of a large ventral hernia in a diabetic patient.

The postoperative course was uneventful and wound healing was satisfactory. After a few follow-up visits the patient was asked to report back only in case there were any problems.

Meanwhile, the surgeon and his wife left for the USA for a 4-week visit they had planned much earlier.

A week or so later, the patient noticed a purulent discharge from one point in the wound. He tried contacting the surgeon but was unable to connect to his mobile number. On visiting the hospital, he learnt that the doctor was on leave but no one seemed to know for how long. On insisting, he was referred to the surgical OPD. A junior surgeon examined him and prescribed some antibiotics. But the infection got worse by the day and after a few visits to the hospital, he realized that the doctors were not taking much interest in his case.

Hence, on the recommendation of a friend he visited another surgeon in another hospital.

This surgeon examined him and informed him that he needed to be re-operated to remove the mesh and drain the pus in order to control the infection. Accordingly, the patient was re-operated and the appropriate surgery was performed. As soon as the first surgeon returned from the USA, he was greeted by a legal notice from the patient claiming negligence in the surgery as well as unethical behavior in leaving him to fend for himself after he developed post-operative complications. He demanded that he be paid Rs. 50 lakhs only as damages within 10 days else he would file a criminal complaint as well as a complaint in the Consumer forum. A complaint to the Medical Council was an additional threat.

 Provocation (jousting) by surgeon no 2 was a strong possibility!

 

An obstetrician had to leave town for a family emergency. She requested a colleague practicing nearby to attend to any urgent calls from her nursing home since she would be away. He agreed readily. Two days later a patient got admitted with labor pains. The nurse informed him of the same following which he gave some instructions on phone and said he would arrive shortly. 

However, he did not reach for a long time. Meanwhile, the nurses managed to deliver the baby but the patient developed PPH which could not be controlled even after the “locum” doctor arrived and a hysterectomy had to be carried out.

The relatives filed a complaint before the State Consumer Forum demanding compensation from the original obstetrician and her “locum” as well.

Each of the above cases has a message or two to help us preempt such outcomes;

📌Every time you take a break in your practice you must ensure that an appropriately qualified doctor will take care of your patients especially the ones already under treatment or just treated. New patients come under a different category and can be declined.

📌In western countries, it would be unthinkable  to leave for a trip without making arrangements for a doctor to “cover” you in your absence (as is their terminology) by appointing a “locum”

📌Definition of ‘Locum’:  The word locum comes from the Latin phrase locum tenens, which means “place holder”. A locum is a person who temporarily fulfills the duties of another. A locum doctor is therefore a doctor who covers for another doctor who is on leave.

📌In our country, especially for the stand-alone or solo practitioner, finding a locum is a challenge and hence certain less than ideal arrangements are made.

📌The choice of the person, who will substitute for you in your absence, is extremely crucial and should be done with great deliberation. Please remember, an irresponsible “locum” can be the cause of endless trouble for you.

📌It is wise to note that the liability of the actions or inactions of your substitute colleague can spill over to you since he has been appointed by you and is acting on your behalf. This is especially the case in the treatment of patients who were already under your care when you left.

📌Hence, select your locum carefully. He or she should be as qualified as you and one in whom you have confidence. He should be willing to look after your cases. Do not entrust your cases to a reluctant colleague.You should be sure he would attend to your patient the way he attends to his own patient. You should be confident that he would not give “step-motherly” treatment to your patient!! I am laying special stress on this because it has been seen from experience that sometimes the attitude of “locums” is what is known as cavalier  ( synonyms as per Oxford dictionary:  careless, casual,  cursory, inattentive, perfunctory, slipshod, unconcerned !!! )

📌Let us see what the Code of Ethics of the Medical Council of India prescribes the conduct of a locum under the heading “Appointment of a substitute” It says: Whenever a physician requests another physician to attend his patients during his temporary absence from his practice, professional courtesy requires the acceptance of such appointment in consistence with his other duties. The physician acting under such an appointment should give the utmost consideration to the interests and reputation of the absent physician. All such patients should be restored to the care of the latter upon his return.(The last line is particularly interesting!!)

✅Do not undertake to substitute for a colleague unless you are able to.

✅Having accepted, make sure you treat his patients the way you would your own.

✅Do not pass adverse comments on the treatment the patient has been receiving.

✅Don’t forget (!!) to hand over the patient back to your colleague after he returns.

✅Remember that you may require the same colleague to look after your patients while you are away and hopefully, he will reciprocate in the same manner. In short, remember what the Bible advises: Do unto others, as you would have others do unto you!

📕Unless it is an emergency, plan your break well in advance so that your date of departure and return are known to all concerned.

📕Inform the hospitals or nursing homes you are attached to, the period during which you will be unavailable, preferably in writing. This is equally important if you are attached to a corporate or Trust hospital.

📕Put up a notice in your clinic informing your period of absence well in advance.  A recorded message on your answering machine giving information about your absence and the alternate arrangements made by you is also a good idea.

📕It is especially important to inform critically ill patients and their relatives about your impending absence and the arrangements you have made for continuing treatment of the patient while you are away. If possible, one should physically introduce the doctor who would be looking after the patient. The patient /relatives need to be assured that your “locum” is as qualified and competent as you are. If they have any reservations about your “locum”, they can be asked to select a doctor of their choice.

 

📕The staff who is responsible for answering queries, giving appointments or receiving calls on your behalf, should not only be fully aware of your period of absence but even of the doctor who is going to look after your responsibilities and his whereabouts and contact telephone numbers. There should be no ambiguity on this score. In appropriate cases, your staff should inform patients telephonically or otherwise, of the fact of your non-availability. Nowadays, e-mail, SMS, etc. are additional options of communication.

📕New patients should be given the option of consulting your “locum” or any other Consultant of their choice.

📕It is advisable to instruct your staff to keep a record of all the telephone calls received in your absence and the reason for them. Additionally, the contact numbers of the callers ought to be recorded.

📕On your return, you would need to review this list of callers along with the list of patients examined by your  “locum”. It is important to be updated on the happenings in your absence.

🔰GROUP PRACTICE 

Unfortunately, group practice has not caught on in our country for a host of reasons. Hence it is all the more reason why we should be conscious of this problem of handing over the care of our patients in our absence. Group practice can eliminate many of the anxieties mentioned above and we should make attempts to promote it.

🔰 ONLINE LOCUM AGENCIES 

Development of sound, ethical, professional LOCUM AGENCIES, as in the western countries. Apparently, there is a class of Consultants there who prefer to practice only as Locum doctors, and they do it diligently. Interestingly, they have a Locum Doctors Association in the USA!!

  

All doctors are entitled to take vacations or breaks in their practice. Both the public and the law recognize this.

It is however inappropriate to do so without arranging another doctor of the same specialty to be ready to handle any emergencies or routine problems that may arise with the patient.

Failure to do so attracts the allegation of what is called “Abandonment”. Abandonment is a legal claim that occurs when a physician’s professional services are not available without reasonable notice and when continued medical care is necessary. Simply speaking, it is like “walking away” from a patient.

A number of colleagues have faced litigations on this count.

I hope the above suggestions will help you prevent such situations.

An ounce of prevention is worth more than a ton of treatment (Panchatantra) !!!

©Dr. Lalit Kapoor

About the Author

Dr. Lalit Kapoor is a General Surgeon practicing in Mumbai. He is the founder of the Medico-Legal Cell, Associaton of Medical Consultants, and is a medico-legal expert assisting affected members with medico-legal problems for over four decades. He is also the author of the book Better Safe Than Sorry- Medico-Legal Do's & Don'ts.

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