"A casual consultation is just that - Casual" - Unknown
This blog has three stories and a couple of statements that may save your life and career.
First Story: Poonam
Major Poonam was getting late for her introduction parade and was rushing out to report in time. She was shouting instructions to her children about breakfast and catching the school bus
Poonam had passed her MBBS from Shimla about 11 years back and had married an Army officer. Later she had also joined the Army Medical Corps. Presently, her husband’s battalion was posted in a non-family field area and she lived with her children in an Army cantonment outside a second tier city. She was working at the local military hospital, which was being inspected by the GOC today. Poonam was proud to be working as MI Room (now called the Casualty) incharge and would be introduced to the GOC in the introduction parade.
She lived in a ‘temporary’ officer’s accommodation, which was nothing but a modified second World War granary barrack. It consisted of a series of large rooms with an open verandah in front and back. A single large room was allotted to each family with a common front verandah. The back verandah of the barrack had been converted into attached makeshift kitchenette and a toilet. Her daughter aged 9 and a son aged 7 lived with her. Normally she saw them off to school, but today she could not afford to be late for the introduction parade.
Burning in stomach
As she stepped out of her room into the verandah, she was confronted by the neighboring officer’s wife: “My husband is having burning in stomach, can you advise something for him.”
Poonam was nonplussed, “Please bring him to the MI Room, I am getting late for the introduction parade.”The neighbouring officer’s wife persisted, “Oh, Just tell me something to give for his stomach, and I’ll bring him later.”
Poonam continued moving towards her Scooty and shouted “Okay, give him ‘Digene‘.” and went rushing for her duty.
Two hours later, the neighbour’s husband died of a massive heart attack. The lady doctor was sued in court for criminal negligence.
Friends turned foes
There were no mobiles then, but it soon became the talk of the town. There was a parallel trial in all social gatherings. “The lady doctor should have stayed back and properly examined the patient.” “Why would she jeopardize her own career?” “Why did she advise without examining the patient?” “If she hadn’t, the neighbour would have been very upset.” “As if now she is not!”
Opinion amongst the lay public was divided. “It was wrong for the neighbour to consult her when she was not in her chamber.” “Why else would one want to live near a doctor’s house?” “Neighbor did not follow her full advice, so doctor is not at fault!” “Do patients ever follow full advice?”
A long legal battle followed. After a lot of harassment and notoriety, the doctor was declared not guilty by the honourable court. But…….she was socially boycotted and taunted as a murderer in social gatherings. Later she resigned from service and was not heard of again!
Second Story: I fell into a trap
This one is more recent. In 2017, I lived in a rented flat on the second floor in an apartment building. The ground floor was occupied by my landlord, and first floor was owned by an old school friend of mine called Monty. We had met after nearly 40 years. He mostly lived with his son in Sweden and used to come to India for 3 months when the winter became too severe there. This incident happened on the early morning of 29th Sep 2017. I was not aware that he had come back to india a month earlier than expected on the previous night.
I was leaving my house at 7 in the morning, wondering if I was late for a flight to Hyderabad, where I had to give a talk in a conference. Monty’s wife met me in stairway as I was coming down, “AC, Monty has been advised this preloaded injection. Doctor had said that I could just jab it in his thigh. I could do it alright, but now that I see a doctor available, I thought, you are the best person to do the honors!”
“Ma’am, I am getting late for a flight. And then there can be reactions” I protested
She laughed and responded, “Oh, Don’t worry. He has taken one last week. There was none in the last dose. It will take precisely 2 seconds. He is lying there with his bottoms bared.”
I now had two options:
First, I could explain the implications to the lady over next 15 minutes unsuccessfully and miss my flight plus spoil our friendship! (And keep hearing about it for rest of my life)
Second, Give a jab and get along!
Against all my training, I went in to give the injection and asked her on the way, ” What is it for?”
She picked up her cup of tea lying on the side table and answered,”Oh nothing, just to counteract some side effects of an earlier injection”
I had my distance specs on, and so I could not read what fine print on the label said on the pre-filled syringe. In any case it was an unfamiliar foreign trade name.
“I valued our friendship, as I cannot make new friends at my age. They were happily married for 35 years; I knew she would not want to harm him. I reluctantly agreed to help. “Okay, I will guide you. You hold it vertically and jab on his buttocks perpendicularly…. yes and quickly withdraw!” So, I supervised the jab, and fled, but remained uncomfortable throughout my trip
When I came back two days later, and asked them about details, I learnt that Monty was diagnosed with a cancer and was on chemotherapy. The injection we gave that day was GMCSF. I had made her give the injection intramuscular, when it was supposed to be given subcutaneous. I was fortunate, no adverse effects occurred! It was a near miss disaster and I had survived despite my foolishness.
What is Curbside Consultation?
I am sure readers know what I am talking about. Curbside consultation means when you are professionally consulted as a doctor at a time you are least prepared for it. Such informal consultations—also called “hallway,” or “sidewalk” or “Social” consultations—typically involve a “brief presentation of the patient’s history, recitation of the diagnostic test results obtained to date and discussion of potential avenues of treatment for this patient.1 It is of two types2 It is of two types:
(a) A lay person may ‘corner’ any physician, seeking an opinion about a medical condition, diagnostic modality, or therapeutic option at unexpected time, place and setting, or
(b) A physician may ask a colleague in another specialty for the best method for managing a particular clinical patient.
It can be dangerous for many reasons. Physician being cornered may not have expertise in the area e.g. a psychiatrist may be asked about cancer chemotherapy. In second story above, I was such victim.
The lay person may be asking for information about third person i.e. Lucknow wali aunty with gallstones, in which case the information being exchanged is confusing and will become gibberish by the time that Lucknow-wali aunty receives it second-hand.
You may be professionally consulted when you least expect it!
When can you be consulted?
It happens only in India! You may be consulted at the street corner, pan-shop, at parties, in restaurants, at the barber shop and even while standing in the public toilets. Another form is through your mobiles. Every time, I open my WhatsApp, I always have 20 odd such casual consultations waiting for me, full of lab reports, x-rays and CT pictures from patients who do not bring these at time of physical/ formal consultation. What can you do when some of them are relatives and very close friends.
Here is one example: A patient I had seen 7 years back suddenly sent 27 lab reports, one ultrasound report with 5 pictures, one unreadable CT Scan along with a pictures of an unthinkable area of his body with following message:
“Doc-saab, My pain abdomen has not changed. I had one loose motion 7 days back. Feel constipated for last two days. Am burping a lot. I have enclosed all my blood reports and ultrasound pictures, please send me the fresh prescription. PS: Can I eat butter chicken?”
Is the doctor criminally liable?
Doctors often reply to such requests out of politeness. They often take decision on incomplete information. Wrong diagnosis or wrong treatment makes the doctor criminally liable for malpractice.
If the patient is harmed by any such consultation, the doctor is legally liable even if he was not paid. Hon’able Supreme Court has opined that “”No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.”3
Medical malpractice has developed as a theory of liability discrete from common law negligence, imbued with both contract and tort principles. Tort literally means assault, battery, intentional infliction of emotional distress, and false imprisonment. Also included are trespass to chattels, property, and conversion. Hon’able Courts require following to decide guilt:
(a) There must be a relationship of a certain kind.
(b) The wrongful act must be related to the relationship in a certain way.
(c) The wrongful act must be done within the course of relationship.
The Hon’able court has observed, “Professionals do not owe a duty to exercise their particular talents, knowledge, and skill on behalf of every person they encounter in the course of the day.”4,5,6, 7,8
Relationship in casual consultation
In the eyes of the Court, curbside consultation is a consensual relationship whereby a patient “knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient. (Doctor patient relationship)”
If a doctor diagnoses, treats, or prescribes for an ailment, (s)he is obligated to possess and use skill and care, independent of an express agreement of employment or promise to pay for services.
The doctor, therefore may be held responsible for negligence or lack of skill when “any act is done, or advice given, that may reasonably be construed [as] indicating” that doctor knowingly gave advice.
Why casual consultation on the run?
Only reason why such consultations are asked for is, that it is convenient for the person seeking such consultation. If the doctor has not learnt to say no, these casual consultation have the potential for being very dangerous for both the parties.
It is well known fact that “Medical errors are potentially a lot higher in curbside consultations because
(a) The doctor may not be in a frame of mind to seriously analyse, may be exhausted, sleepy, driving, or drinking.
(b) The doctor does not have complete information, he is asked to decide on what limited information has been provided.
(c) Much may also be lost in translation. Patient may chose to follow the advise he thinks doctor has given.
Therefor, when a curbside consultation is used as a substitute for the physician seeing the patient, One should expect much higher chance of an incorrect diagnosis and medical errors.”
It happened in Chandigarh. A 16-year old boy was hospitalized with headache and generalised weakness after he had a fallen from a wall about 1.5 meters high. X-rays of his spine were normal. The treating paediatrician telephoned a neurosurgeon classmate, who asked whether the boy’s neck was stiff, discussed diagnostic possibilities with the paediatrician, and suggested doing a lumbar puncture.
The neurosurgeon also offered to see the boy if referred, but the formal referral never happened, and the neurosurgeon earned nothing. The paediatrician later diagnosed Guillain-Barre syndrome on the basis of CSF examination. The boy developed quadriplegia few hours after after lumber puncture
A spinal cord injury was discovered after the patient was transferred to PGI Chandigarh. The case went to the Court. Ultimately, the neurosurgeon paid 10-times more compensation than treating paediatrician.
What do the Courts think?
The Courts often allow suits to proceed against doctors, trying to decide ‘whether a doctor-patient-relationship existed?’ And if so, whether the [consulting] physician’s advice amounts to the alleged malpractice. They also look at what was said, and if there is documentation to prove it. Was advice specific or general?
Curbside Consultation’ can be a bona-fide Doctor-patient-relationship if one is on call duty at hospital and Emergency Room (ER) doctor asks his/her advice on a patient in ER. One has a relationship with patient that entails a duty of care. Similarly if you are covering a friend’s duty, and a nurse rings you for advice. You may have never seen the patient, but you will be liable for your advice if given on phone. Also if one is supervising an intern, he/she bears vicarious liability for adverse events caused by the intern. Be specially careful, if you think that such a curbside consultation will be used by seeker to select a treatment option.
If general information is given, or a question is answered in a conference about a situation, there is no duty of care. It is best, therefore, to offer advice in general terms as if teaching a colleague or patient. Example “As you describe it, I believe in this situation one may consider . . . , but without a more in-depth evaluation, I can’t be sure.”
What about telemedicine?
COVID-19 pandemic had forced NMC to issue formal guidelines to conduct telemedicine sessions.9 As per these guidelines, the doctor has to use his discretion to decide whether he is confident about what he is doing and that he has all the information he needs. Can he can make a clear diagnosis? The telemedicine sessions are recorded and a written prescription is supposed to be given. The doctor has the right to ask the patient for physical consultation if he/she is not sure about the diagnosis. However, the doctor’s liability is not diluted at all.
In many social gatherings people introduce the doctor as his or her friend. The doctor should remember that any one who consults him is NOT his friend but his patient. In today’s scenario, being socially polite has finished many a doctors. Also remember that curbside consultation has highest chances of medical errors. Even a famous fiction hero once said, “My dear Watson, do not jump to conclusions before knowing all the facts of the case.”
Nearly 40 years back, my own professor of medicine had taught me what I have quoted on the top. Casual consultation is just that – ‘casual‘. One should avoid it if one can. He had also told us an interesting point. He had said, “My home has my nameplate where I have boldly written – I. M. AHUJA. Below that there is an inscription that say – If you have come to see Doctor Ahuja, he will be available only in the Clinic.“
[Note: As always, the names of the characters are mostly fictitious but the issues are real.]
|↑1||Patricia C. Kuszler, Telemedicine and Integrated Health Care Delivery: Compounding Malpractice Liability, 25 AM. J.L. & MED. 297, 313 (1999).|
|↑2||Kassirer JP. Access to specialty care. N Engl J Med. 1994 Oct 27;331(17):1151-3. doi: 10.1056/NEJM199410273311709. Erratum in: N Engl J Med 1994 Dec 1;331(22):1535. PMID: 7779175.|
|↑3||Martin F Dsouza vs Mohd Ishfaq, Para 54b Feb 2009 Supreme Court. https://indiankanoon.org/doc/1092676/|
|↑4||St. John, 901 S.W.2d at 423 (citing 1 LOUISELL & WILLIAMS, MEDICAL MALPRACTICE § 8.01 at 82, 818 to 819 (1990) (noting that “medical malpractice developed under the theory of ‘public calling’ prior to the time negligence emerged as a separate tort”)).|
|↑5||Buttersworth v. Swint, 186 S.E. 770 (Ga. Ct. App. 1936) at https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=3886&context=lalrev|
|↑6||Peterson v. Phelps, 143 N.W. 793 (Minn. 1913) at https://case-law.vlex.com/vid/143-n-w-793-617870787|
|↑7||Young v. Crescente, 39 A.2d 449 (N.J. 1944) at https://www.courtlistener.com/opinion/3583717/young-v-crescente/?|
|↑8||Miller v. Dumon, 64 P. 804 (Wash. 1901) at http://courts.mrsc.org/washreports/024WashReport/024WashReport0648.htm.|
|↑9||Telemedicine Practice Guidelines at https://www.mohfw.gov.in/pdf/Telemedicine.pdf|