Medico Legal Considerations in Oral and Maxillofacial Surgery

Good Morning

MEDICO LEGAL CONSIDERATIONS IN ORAL AND MAXILLOFACIAL

SURGERY

PRESENTED BY MODERATORDr. SWARAJ THOLE Dr. RAJENDRA DESAI

ETHICS ETHICS IS DEFINED AS “THE SCIENCE OF

IDEAL HUMAN CHARACTER AND BEHAVIOR IN SITUATIONS WHERE DISTINCTION MUST BE MADE BETWEEN THE RIGHT AND WRONG, DUTY MUST BE FOLLOWED AND GOOD INTERPERSONAL RELATIONS MAINTAINED”.

MAJOR ETHICAL PRINCIPLES NON- MALEFICIENCE… TO DO NO HARM BENEFICIENCE… TO DO GOOD RESPECT FOR PERSONS a) AUTONOMY b) INFORMED CONSENT JUSTICE TRUTHFULNESS OR VERACITY CONFIDENTIALITY

TOPIC OUTLINE… INTRODUCTION LEGAL CONCEPTS INFLUENCING LIABLITY CONSENT MLC’s DEATH IN MAXILLOFACIAL SURGERY

PRACTICE RECORDS AND DOCUMENTATION REFERRAL TO ANOTHER SPECIALIST PATIENT MANAGEMENT PROBLEMS COMMON AREAS OF LITIGATION CONCLUSION

INTRODUCTION In recent years there has been an increase

in the number of malpractice claims brought against the dentists and oral surgeons. Some of the most common lawsuits are related to extraction of wrong tooth , failure to diagnose a problem and lack of proper informed consent.

The purpose of this seminar is to prepare the oral surgeons for dealing with moral , legal , and administrative challenges.

LEGAL CONCEPTS INFLUENCING LIABLITY

Standard of care Malpractice breach of contract

Standard of care Is that level of care which a skilled,

educated, and experienced surgeon/medical practitioner would do under similar circumstances

Malpractice occurs when the patient proves that the oral surgeon failed to comply with the minimal standard level of care, which resulted in injury.

Malpractice Defined as professional negligence.

This occurs when treatment provided by the oral surgeon fails to comply with “standards of care” exercised by other oral surgeon in similar circumstances.

Medical practitioners are not liable for inherent risks of treatment that occur in the absence of negligence but Consent of the patient cannot be defense to medical practitioner in negligence.

In most malpractice cases, the patient must prove all the following four elements of malpractice claim.

1. The applicable standard of care2. Breach of standard of care3. Injury4. The breach caused the injury

Common areas of malpractice in oral surgery

Failure to obtain informed consent. Failure to diagnose, refer or treat a disease or

condition Extraction of wrong tooth Damage to adjacent teeth Broken root tips left in the bone Infection following extraction Adverse outcome following general anesthesia

administration or intravenous sedatives Faulty history taking resulting in allergic responses,

drug incompatibility, and in rare cases death Prematurely discontinuing care or not attending to

the needs of a patient under treatment.

Breach of contract Marketing pressures sometimes lead to

written advertisements or promotions that can be interpreted by the patient as guaranteed results which can lead to breach of contract

Consent Consent of the patient has an immense

practical importance to the clinicians. Medical practitioners may do nothing to or for a patient without valid consent.

Not taking consent is considered as deficiency in medical services under the section 2(1) of the Consumer Protection Act.

Treatment and diagnosis cannot be forced upon anyone who does not wish to receive them except in statutory sanction.

What consent means ? Consent means free, voluntary

agreement or compliance. Sec.13 of Indian contract act lays down

that two or more persons are said to be in consent with each other when they agree upon the same thing in same manner.

Is the Consent legally valid!!! In consent, there are three separate but correlated

elements 1. voluntariness 2. capacity 3. knowledge Voluntariness suggests willingness of patient to

undergo treatment. Capacity means a degree of ability of the patient to

understand the nature and consequences of treatment offered.

Knowledge means that sufficient amount of information about the nature and consequence of treatment has been disclosed to patient.

These three elements must be present in the consent, only then it is legally valid.

Who can give consent The age for consent for medical treatment is not

officially laid down in our country Adulthood is achieved at the age of 18 yrs in India

but person above the age of 12 yrs can give consent for medical treatment.

In Western countries like UK a person below the age of 18 yrs cannot give consent for medical treatment with out the prior permission of parent or guardian . The Indian penal code and other law reforms are silent on this aspect.

For a person under 12 years of age, or of unsound mind, his/her guardians/person in whose lawful custody he/she is, can give consent (89 IPC).

Consent in emergency The consent can be done away if there is

emergency and there is no advance directive or refusal to take treatment.

Local guardian can give consent on behalf of a person only if the treatment is an emergency one.

Locoparentis- In an emergency involving children, when their parent or guardian are not available consent is taken from the person in charge of the child.

Unconscious/Unknown patient when admitted in hospital, the medical superintendent/In charge of hospital can give consent for treatment.

Types of consent Implied consent is one, which is not

written but legally effective. When patient comes to doctor’s consulting room or hospital and waits for the doctor, implied consent is presumed.

specific or expressed consent is one, in which the patient is verbally agreeing to a recommended procedure.

Written consent is obtained when any material risk or any major procedures is involved .

What is informed consent?

Informed consent is the patients acceptance of a line of treatment based on the information provided by a health care provider

Simply there are two forms to informed consent

a. being informed b. giving consent

Other types of consent Blanket consent High risk consent

How consent should be obtained

The elements that a physician must discuss with his / her patient in the language which the patient can understand to fully obtain informed consent are the following:

1. The diagnosis and the nature of the condition or illness2. The nature and purpose of the treatment or procedure

recommended.3. The material risks and potential complications

associated with the recommended Treatment / procedure.

4. All feasible alternative treatments or procedures, including the option of taking no action.

5. The relative probability of success for the treatment or procedure in understandable terms.

Right to refuse consent A competent adult has a right to refuse

treatment even if others, including the medical practitioners, believe that the refusal is neither in his / her best interest nor reasonable.

Advance directives

Also known as living wills These are made by the competent

patients with the intention that they will remain effective if the patient becomes incompetent.

In our country, there is no law regarding advance directives.

Medico legal cases Introduction MLCs in Medical Practice

Introduction Medico legal cases (MLC) are an integral part of

medical practice that is frequently encountered by medical practitioners'

Proper handling and accurate documentation of these cases is of prime importance to avoid legal complications and to ensure that the Next of Kin(NOK) receive the entitled benefits.

Since law and order is a state subject, there are differences in the legal procedures being followed by different states. Medical practitioners should acquaint themselves with medico legal procedures that are in vogue in the state in which they are serving.

Definition A MLC is defined as “any case of injury

or ailment where, the attending doctor after history taking and clinical examination, considers that investigations by law enforcement agencies are warranted to ascertain circumstances and fix responsibility regarding the said injury or ailment according to the law”

Who can label a case as an MLC1. Residential medical officer(RMO)2. Casualty medical officer(CMO)3. Duty Medical Officer (DMO) /Medical

officer(MO) In charge of ward who is attending to

the case

The decision to label a case as MLC should be based on sound professional judgment, after a detailed history taking and thorough clinical examination.

Examples of MLCs.The following are some of the examples of MLCs and

medical practitioners should use their professional judgment to decide any other cases not enumerated in the list:

1. Assault and battery, including domestic violence and child abuse

2. Accidents like Road Traffic Accidents (RTA), industrial accidents etc.

3. Cases of trauma with suspicion of foul play4. Electrical injuries5. Poisoning, Alcohol Intoxication6. Undiagnosed coma7. Chemical injuries8. Burns and Scalds9. Sexual Offences10. Criminal abortions

11. Attempted suicide12. Cases of asphyxia as a result of hanging,

strangulation, drowning, suffocation etc.13. Custodial deaths14. Death in the operation theatre15. Unnatural deaths16. Death due to Snake Bite or Animal Bite17. Fire Arm injuries18. Drug overdose19. Drug abuse20. Dead brought to the Accident and Emergency

Dept and deaths occurring within 24 hours of hospitalization without establishment of a diagnosis

General Guidelines for dealing with Medico legal

cases In emergencies, resuscitation and

stabilization of the patient will be carried out first and medico legal formalities may be completed subsequently. The consent for treatment is implied in all emergencies.

All hospitals will maintain a MLC register and the MLC will be initiated and documented in the register.

Medico legal documents should be prepared in duplicate, with utmost care giving all necessary details, preferably written with a ball-point pen and avoiding overwriting.

RMO/ WARD INCHARGE in hospitals should be immediately inform senior staff when a MLC is registered or admitted.

The police should be informed. In case of discharge / transfer / death of such

a case in the hospital, the police should be informed.

Medico legal documents should be considered as confidential records and should be stored under safe custody to avoid tampering.

Medical records must be thorough, complete and should document each and every significant event in the course of care of the patient.

Precautions to be taken in MLCs The complete available particulars of the patient

should be noted down along with two identification marks. Particulars of the person accompanying the patient will also be noted down.

One should not rely on memory while writing reports or during recording of evidence in a court of law.

Complicated cases should be discussed with seniors and colleagues.

No cause of death will be mentioned in the death certificate. The statement that “Exact cause is to be ascertained by post mortem examination” is to be endorsed.

In MLCs, the body will not be handed over to the NOK/relatives. The civil police will be informed and the body handed over to them. The police will, after the medico legal formalities, handover the body to the NOK/relatives.

Death in maxillofacial surgery practice

Death is a possibility In any speciality of medicine. Maxillofacial surgery is no exception

Today, many maxillofacial surgeons in India are actively involved in head and neck oncology, cranio-facial surgery and other procedures which carry with it a high degree of morbidity and mortality. Dealing with death and dying therefore holds a special significance.

Common causes of death in maxillofacial surgery include death due to:

1. Anesthetic complications. 2. Airway obstruction. (post trauma, blocked

tracheostomy tubes, space infections etc) 3.  Maxillofacial infections.  4. Ex-sanguination. 5. Thrombo-embolic phenomenon. (deep

vein thrombosis, cavernous sinus thrombosis etc).

Maxillofacial Surgeons and Death Certification

Maxillofacial surgeons by virtue of the unique features of their speciality are often in a dilemma as to whether they can declare a patient dead and issue a death certificate.

Death of a patient has to be certified on a standard format called a death certificate by a certified medical practitioner.

The person most intimately involved in the health care of the patient and who has the greatest knowledge of the cause of death is the professional who should certify death.

Coroner A public officer appointed to inquire into

the cause of death The term is derived from “customs

plectrum coronas” or “keeper of the crown” and dates back to Saxon times.

In India, the Office of the Coroner Is available only In Mumbai and Kolkota. However autopsies or post mortem evaluation is done at district government hospitals and teaching institutions.

A death should be referred to the Coroner

when the cause of death is unknown the deceased was not seen by the certifying doctor

either after death or within the 14 days before death

the death was violent or unnatural. or there are suspicious circumstances

the death may be due to an accident (whenever It occurred)

the death may be due to self-neglect or neglect by others

the death occurred during an operation or before recovery from the effects of anesthesia.

RECORDS AND DOCUMENTATION

Poor record keeping is one of the most common problem encountered in the defense of a malpractice suit, that is why adequate documentation of the diagnosis and treatment is necessary

A well documented chart is the cornerstone of any risk management program

The following eleven items are helpful when recorded in the chart

1. Chief complaint2. Dental history3. Medical history4. Current medications5. Allergies6. Clinical and radiographic findings and

interpretations7. Recommended treatment and other alternatives8. Informed consent9. Therapy actually instituted10. Recommended follow up treatment11. Referral to other specialists

Referral Many a times, a patient needs to be

referred to another specialist as the patients treatment may be beyond their level of training or experience

In these cases, a referral slip or a letter should clearly indicate the basis for referral and what the specialist is being asked to do.

A patients refusal to pursue a referral should be clearly mentioned in the patients’ chart.

Patient management problems Noncompliant patient Patient abandonment

Noncompliant patient The managing staff should routinely chart lack

of compliance, including missed appointments, cancellations, and failure to follow advice to take medications, seek consultations, wear appliance, or return for routine follow ups.

When the patients health may be jeopardized by continued noncompliance, the surgeon should consider writing a letter to the patient, which identifies the potential harm and advices the patient that the office will not be responsible if these and other problems develop as a result of the patient‘s noncompliance.

Patient abandonmentThis can occur because of the patients’ failure To return for necessary appointments To follow explicit instructions To take medications To seek recommended consultations To stop the activities that may inhibit the

treatment plan or otherwise jeopardize the surgeons ability to achieve acceptable results

This may lead to total breakdown of communication and loss of rapport between the surgeon and patient.

When decided that the surgeon patient relationship cannot continue, the following steps should be made to terminate the relationship.

a letter should be sent to the patient, indicating the intent to withdraw from the case and unwillingness to provide further treatment. It should include five important pieces of information

1. Reasons supporting the decision to discontinue treatment.

Steps to terminate patient doctor relationship

2. If applicable, the potential harm caused by the patients undesired activity.

3. Past warnings by the office that did not alter the patients actions.

4. A warning that the patients treatment is not completed; therefore should seek another hospital for further treatment.

5. An offer to continue treating the patient for a reasonable period and for emergencies until the patient locates another hospital for further treatment.

Common areas of litigation Faulty history taking resulting in

allergic responses, drug incompatibility, and in rare cases death

Failure to diagnose, refer or treat a disease or condition

Failure to obtain informed consent. Extraction of wrong tooth Damage to adjacent teeth Implant failure

Nerve injuries Broken root tips left in the bone Infection following extraction Adverse outcome following general

anesthesia administration or intravenous sedatives

Prematurely discontinuing care or not attending to the needs of a patient under treatment.

Conclusion Principles of ethics cannot be forced on

anyone. They must be self cultivated and voluntarily accepted.

Failure to effect informed consent may constitute breach of a doctor's duty of care to the patient.

The way in which medico legal issues are handled has a profound impact on the public image. Therefore, MLCs must be handled tactfully by the MO’s.

REFERENCES CONTEMPORARY ORAL AND MAXILLOFACIAL SURGERY

PETERSON 4TH EDITION ORAL AND MAXILLOFACIAL INFECTIONS TOPAZIAN 4TH

EDITION Consent to surgery in a high risk speciality : a

prospective audit HE Ellamushi, R Khan, ND Kitchen Department of Surgical Neurology, The National

Hospital for Neurology and Neurosurgery, London, UK Ann R Coll Surg Engl 2000; 82: 213-216 Death: an overview for an oral and maxillofacial

surgeon joms 2003 vol 2 no 4 INTERNET RESOURCES

Thank you

DO ALL THE GOOD YOU CAN, BY ALL THE MEANS YOU CAN, TO ALL THE PEOPLE YOU CAN, AS LONG AS EVER YOU CAN.

JOHN WESLEY