litigation in CS -.pptx

DR ALKA MUKHERJEE
MBBS DGO FICOG FICMCH PGDCR
PGDMLS MA(PSY)
Director & Consultant At Mukherjee
Multispecialty Hospital
MMC ACCREDITATED SPEAKER
MMC OBSERVER MMC MAO – 01017 /
2016
Present Position
 Director of Mukherjee Multispecialty Hospital
 Hon.Secretary INTERNATIONAL COUNCIL FOR HUMAN
RIGHTS
 Hon.Secretary NARCHI NAGPUR CHAPTER (2018-2020)
 Hon.Secretary AMWN (2018-2021)
 Hon.Secretary ISOPARB (2019-2021)
 Life member, IMA, NOGS, NARCHI, AMWN &
Menopause Society, India, Indian medico-legal &
ethics association(IMLEA), ISOPRB, HUMAN RIGHTS
 Founder Member of South Rapid Action Group,
Nagpur.
 On Board of Super Specialty, GMC, IGGMC, AIIMS
Nagpur, NKPSIMS, ESIS and Treasury, Nagpur for “
WOMEN SEXUAL HARASSMENT COMMITTEE.”
mukherjeehospital@yahoo.com
www.mukherjeehospital.com
https://www.facebook.com/
Mukherjee Multispeciality
https://www.instagram.com/
Achievement
 Winner of NOGS GOLD MEDAL –
2017-18
 Winner of BEST COUPLE AWARD
in Social Work - 2014
 APPRECIATION Award IMA - MS
 Past Position
 Organizing joint secretary ENDO-GYN 2019
 Vice President IMA Nagpur (2017-2018)
Vice President of NOGS(2016-2017)
Organizing joint secretary ENDO-GYN
Organizing secretary AMWICON –
2019

MEDICO-LEGAL ASPECTS OF CESAREAN SECTION
DR ALKA MUKHERJEE
MBBS,DGO,FICOG,FICMCH,PGDMLS,PGDCR,MA(PSY)
DR ALKA MUKHERJEE NAGPUR

INTRODUCTION
• The first recognized case of obstetric litigation was
in 1980, Jordan Vs White House, since then the
obstetric litigation are on rise.
• Cesarean section is the abdominal route of
delivery after fetal viability. It is most common
operation in obstetrics practice.

Obstetrics is the most litigation
branch of medicine
Two precious lives and two potent litigants – mother and
baby.
Patients are usually young and healthy.
Patients and relatives consider pregnancy as physiological
process.
But obstetrics is full of unpredictability and unforeseen fatal
complication can happen anytime.
And bad outcome is absolutely not acceptable to relatives
and
they always label this as negligence and litigate the treating
doctor.

• Women becoming mother at late age because of education and
career, are more likely to undergo LSCS.
• Large size babies in mothers with DM/ GDM is common.
• Safe surgeries because of safe anesthesia.
• CS gives protection to pelvic floor, prevent incontinence of
stool, flatus, urine and pelvic organ prolapsed.(6)
• Increased rate of nulliparous pregnancy who are at increased
risk of CS.
• Maternal autonomy and inform choice in favor of CS.
• Increased risk of litigations has forced obstetrician in defensive
practice, which leads to more CS.
• Early diagnosis of fetal distress as better monitoring facilities
available.
Incidence of cesarean section is very high

They found that overall, India has about
17.2% cesarean births annually, a number that is
slightly higher than the threshold of 15%
recommended by the World Health Organization,
which says that anything beyond could lead to
increased maternal and perinatal morbidity.Mar
27, 2019
INCIDENCE IN INDIA

CS ON MATERNAL REQUEST
• This is recently introduced indication of CS, raising the
incidence of CS FROM 19.37% IN 1994% TO 28.7% IN 2007.
• But the risks of CS are higher than vaginal delivery, there is
medico-legal problem in doing medically un-indicated
operations for delivering the baby.
• Lack of information and guidelines for non-medical
indication of CS.
• RCOG advices for taking 2nd opinion, whereas ACOG
considers it as ethical.
• But looking towards ethical codes in practice and evidence
based medicine, the financial aspects, limited recourses, we
should stick to indicated CS only.

CS ON MATERNAL REQUEST
• Major abdominal surgery with many
complications involved like those related to
anesthesia, surgery and postoperative
problems .
• Maternal mortality is still 5 times higher in
elective CS and 18 times higher in emergency
CS than after vaginal deliveries.
• There is increased maternal morbidity in
present pregnancy and potential risk of post
CS in future pregnancy.

Prerequisites to be fulfilled for performing CS – 8 ‘P’
• Person – ideally CS is expected to be
performed by a Gynecologist. If a general
practitioner with MBBS degree or a surgeon
with MS degree does it, he or she should
have approved qualification, training from
recognized centers, approved by MCI is must.

• Place – well equipped infrastructure with all
essential equipments like oxygen cylinders
Boyle’s apparatus and defibrillator.

• Protocol – for checking the expiry dates of drugs ,
• oxygen cylinder filling dates and annual
maintenance contracts should be maintained ,
• standards should be followed while deciding the
list of drugs disposables and equipments to be
available in the OT.

PREOPERATIVE PRECAUTIONS – IS ABSOLUTE MUST
• Proper history of previous surgeries and medical
problems.
• The minimum preoperative investigations like
grouping cross-matching, haemogram, BT, CT,
urine examination.
• Documentary evidence of preoperative
instructions to the patient like pre-op starvation,
medication etc

• Proper indication and it’s documentation - very
important to avoid the allegations of unnecessary CS or
late CS and baby suffered.
• Our documents corroborate with indications.
• Eg FHR records should prove that it was a case of fetal
distress.
• Proper and informed consent - must.
• Usual allegations like consent not taken, consent taken
under pressure, delay in operation after giving consent.
• Presence of neonatologist during CS is a necessity
specially if CS done for fetal indication.

• Possibility of bleeding in all cases of CS is present
Prudent to send blood for cross matching for all cases of
CS or
Ascertain the availability of blood in blood bank by tele-
communication
It should be documented on blood transfusion consent
form which is a separate consent form & in emergency
we might forget to take consent for blood.

REASONS FOR CS LITIGATION:
• In case of maternal death due to any cause.
• If asphyxiated baby is delivered by CS at term and dies.
Here allegation is made for doing CS late.
• If baby delivered by CS suffers from cerebral palsy.
• Doctor is held liable if he fails to arrange blood for
transfusion at the time of actual need.
• If a foreign body is left inside the abdomen.
• In case of anesthetic complication, operating doctor is
held jointly liable.

REASONS FOR CS LITIGATION:
• Injury to urinary bladder or ureter may not be held as
negligence but failure to recognize and manage the
injury is negligent.
• Injury to the baby during delivery may lead to
litigation.
• In case of delay in initiating CS after fetal distress is
recognized leading to poor outcome.
• If a complication occurs during CS and the doctor
manages it with reasonable degree of skill, knowledge
and care, without doing or omiting anything that a
reasonable competent obstetrician would do, then also
he is not held responsible for the untoward outcome.

THERE ARE DIFFERENT TYPES OF NEGLIGENCE:
• RES ISPA Loquitur : (Meaning – the thing speaks
for itself): here the negligence resulted in such an
injury that even layman can recognize it.
• For example: causing burn to patient during
anesthesia, leaving sponge or instruments within
the body cavity, handing over wrong baby to
patients.

THERE ARE DIFFERENT TYPES OF NEGLIGENCE
• Contributory negligence –
• it is the concurrent negligence by patient and the
doctor, which causes harm to patient.
• It is the good defense for the doctor. However, in
criminal cases, such defense cannot be taken by the
doctor.

THERE ARE DIFFERENT TYPES OF NEGLIGENCE
• Professional misconduct – it is the violation of
medical code of ethics which may not cause
damage to the patients.
• It is brought before state or central medical
council. Punishment is by warning notice or by
removing name from medical council register.

COURSE AFTER LITIGATION
• There may be letter from the complainant or court stating that an
obstetrician has been sued.
• The reply should be sent within 30 days of receipt of notice. The
obstetrician should put up all possible points for defense in the
first instance during a reply.
• If points which are not mentioned during reply are put during
hearing, they are liable to be rejected.
• Some points of queries may come in the complaint and even if
they are not asked in complaint letters, obstetrician should
mention some points during reply to the complaint.

Questions can be raised like-
• Was the CS indicated? What was the indication?
• Was it done at proper time?
• Was it done by competent surgeon with competent
anesthetist?
• What was the type of anesthesia used? Whether, it was
appropriate for surgery?
• Was the set-up appropriate for CS?
• Were all the precautions taken to prevent complications
(anticipated or unforeseen)?

• Was the problem leading to mishap ( either of baby or
mother) detected at a proper time?
• Was the patient referred to other specialties in time
when input was needed?
• Was the situation conveyed to the relatives in time and
from time to time?
• Was blood available at the time of need?
Questions can be raised like-

The other things should be mentioned in reply
• Qualification, training, experience and expertise of
obstetrician with relevant documents.
• Infrastructure of the clinic or hospital and special facility
available.
• Some facts regarding previous illness or treatment which
might have been omitted in the complaint.
• Inconsistencies in the complaint at different levels through
CPA, complaint in court if any.
• Written evidence of the consent of patient and relatives,
stating the inherent or special risks involved in CS is
important.

• Situation of the case e.g. emergency situation, lack of
facilities should be mentioned.
• Evidence that reasonable, knowledge, skill and care
exercised by the doctor ( matter should be quoted from
standard textbooks)
• Negligence on the part of patient or patient party, if
any, in acceptance of facilities should be mentioned.
• The same queries are also made during hearing. There
should not be any discrepancy between reply during
hearing and that in the written reply to the complaints.
The other things should be mentioned in reply

Compensation:
• If the obstetrician is found guilty or negligent in a case of
CS, CPA may direct doctor to pay an amount as
compensation to the consumer. In case of civil law (The
law of Tort), punitive compensation may also be asked
for.
• The damages for which compensation is claimed are loss
of future earning, cost of future care, cost to cover
physical and mental sufferings, etc.
• In case of vicarious liability out of action or omission of
duties of other subordinate of deputy staff, the doctor
along with the wrong doer compensate jointly.

STEPS TO MINIMIZE CS LITIGATIONS –
MCI approved qualification of operating doctor is a must.
• Judicious and balanced decision for CS considering the
wellbeing of both mother and fetus is ethical.
• Clear, proper and timely communication with patient and her
relatives about need of CS, possible complications and long
term effect, if it is done or not done, in the language which
they understand.
• Sympathetic attitude and solving all queries of patient and
her relatives with patience helps to minimize litigation.
• In fact the whole medical establishment should be made
courteous and polite in communication and dealing with party
in a case of mishap in CS.
• Proper training to handle aggrieved patient and relatives
should be imparted to all staffs

Consent – in the Sameera Kohli vs Dr Prabha
Manchanda, SC Jan 2008 case , the three bench
judgment , given some guidelines regarding consent
• 1) Consent of patient herself is most important. Others
are signing as witness (unless patient is insane / minor)
• 2) It should be an informed consent with detailed
explanation of: nature of treatment, benefits, possible
side effects
(balanced information, not to frighten her),
available alternatives, consequences of refusal of
treatment
All this can be accomplished during the antenatal classes
if taken.

• 3) Consent of CS does not imply consent for other
associated procedures like appendicectomy or
hysterectomy unless it was life saving step.
• 4) With proper mention in the consent, associated
procedure can be done like Tubectomy or
appendicectomy.
• 5) Consent can actually be taken by our resident
doctors.

If patient refuses to give consent for CS -
Document informed refusal signed by the patient.
• If patient refuses to sign, the refusal of consent get an
undertaking about the incident signed by neutral
bystander.
• In Mr Sakil vs Dr P Irani 1992, doctor documented refusal
of consent to CS as patient insisted on waiting for her
father in law and hence negligence could not be proved in
spite of hypoxic damage to the newborn.
• Once consent is given there should be no delay in doing CS.
In K Murugesan vs Dr Sarladevi (1999) COJ 542;

• Another area prone for litigation is vaginal birth after CS
(VBAC) . Documents should be able to prove that labor was
meticulously monitored and OT was kept ready for
emergency CS.
• Blood not arranged in spite of rare blood group (A negative)
2.35 lacs of compensation awarded in DK Nayak vs Dr Kalyani
case(1997) CPJ 103.

• Self audit and updating and staff knowledge and
skill updating from time to time is prudent and
essential.
• If a case needs 2nd opinion or the patient
demands so the doctor should take second
opinion.
• There is a tendency to avoid doing Tubectomy
with CS especially with high-risk patient because
of fear of associated with inquiries of Tubectomy
complications and deaths.
• Following the GOI guidelines of 2006, death or
complications due to CS will not be considered as
sterilization complication.
• Insurance has been started by the Govt. of India
for doctor’s indemnity and patients for any
complication or death and failure. DR ALKA MUKHERJEE NAGPUR

One of the most common complications prone for litigation is
sepsis.
• The documents which can save us in these cases
are:
• Autoclave register
• Fumigation register
• Purchase vouchers of disposals
• Operative notes and postoperative instructions
for common gynecological operations
including CS
• Checklist of antenatal investigations
• Hospital documents
• Anesthesia-related documents

• Exercising skill and care in deciding and performing
CS.
• Documentation is the only proof of standard of care
a patient has provided. All records should be
legible, correct, complete, chronologically placed.
• Professional indemnity cover is very important. The
company should be informed when a complaint or
notice being served.
• Opinion of senior and experienced doctors should
be sought about the merits of case. A strong peer
support is very helpful.

• Obstetric litigation has a very grave impact on obstetrics
practice.
• CPA making doctors to practice defensively, the burden
of investigations, total cost of healthcare has increased.
• Proper documentation,
• proper counseling, and sympathetic approach ,
• honest and sincere attitude in treating the patient ,
• can go a long way in averting any medico-legal problem
in CS.

• Some Important medico-legal cases of CS:
• Smt. Reena Prakash v/s Dr. Dechi III (1994) CP 358 Kar. Alleged sponge left
after LSCS – removed by other doctor who was her cousin and postoperative
sonography was normal- not liable.
• Devendra Naik v/s Dr. Klyani Dhruva I (1997) CPJ 103 Guj. Death after
cesarean- PM show intra-abdominal hemorrhage- following negligent
surgical procedure & repair- no blood was kept ready- medical record not
believed- Rs 2.35 lakh awarded.
•
• Aleyamma Varghese v/s Dewan Bahadur III (1997) CPJ 165 Ker. In a hospital
foreign body left after cesarean – held: normally counting is done by nurse
and surgeon cannot be expected to do that – surgeon but not hospital is
vicariously liable – Rs 98,500.
• Harwinder Kaur v/s Dr. Sushma Chawda III (2001) CPJ 143, Punj. Pain after
cesarean – other doctor operated- found sponge- certified that- held liable
as not investigated- relied on certificate of surgeon.
• Dr. Anush kumari v/s N. Thangaraja (2003) CPJ 341 TL. Death after cesarean-
caused DIC & amniotic fluid embolism- known complication- not liable.

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