MEDICAL RECORDS vis-a-vis MEDICAL NEGLIGENCE

It is important for the doctors and medical establishments to properly maintain the records of patients for two important reasons. The first one is that it will help them in the scientific evaluation of their patient profile, helping in analyzing the treatment results, and to plan treatment protocols. It also helps in planning governmental strategies for future medical care. But of equal importance in the present setting is in the issue of alleged medical negligence. The legal system relies mainly on documentary evidence in a situation where medical negligence is alleged by the patient or the relatives. In an accusation of negligence, this is very often the most important evidence deciding on the sentencing or acquittal of the doctor. It is very important for the treating doctor to properly document the management of a patient under his care. This will be the only way for the doctor to prove that the treatment was carried out properly. A properly obtained consent of the patient will go a long way in proving that the procedures were conducted with the concurrence of the patient. A properly written operative note can protect a surgeon in case of alleged negligence due to operative complications. It is important that the prescription for drugs should be legible with the name of the patient, date, and the signature of the doctor. An undated prescription can land a doctor in trouble if the patient misuses it.

Medical Council of India Guidelines on Medical Records:

The issue of medical record keeping has been addressed in the Medical Council of India Regulations 2002 guidelines answering many questions regarding medical records. The important issues that have been addressed are as follows:

1. Maintain indoor records in a standard  proforma for 3 years from commencement of treatment (Section 1.3.1 and Appendix 3).
    
2. Request for medical records by patient or authorized attendant should be acknowledged and documents issued within 72 hours (Section 1.3.2). 
3. Maintain a register of certificates with the full details of medical certificates issued with at least one identification mark of the patient and his signature (Section 1.3.3).
    
4. Efforts should be made to computerize medical records for quick retrieval (Section 1.3.4)

How long should Medical Records be Preserved?

There are no definite guidelines in India regarding how long to retain medical records. The hospitals follow their own pattern retaining the records for varied periods of time. Under the provisions of the Limitation Act 1963 and Section 24A of the Consumer Protection Act 1986, which dictates the time within which a complaint has to be filed, it is advisable to maintain records for 2 years for outpatient records and 3 years for inpatient and surgical cases. However the provisions of the Consumer Protection Act allows for condoning the delay in appropriate cases. This means that the records may be needed even after 3 years. It is important to note that in pediatric cases a medical negligence case can be filed by the child after acquiring the age of majority. The Medical Council of India guidelines also insist on preserving the inpatient records in a standard proforma for 3 years from the commencement of treatment. The records that are the subject of medico-legal cases should be maintained until the final disposal of the case even though only a complaint or notice is received.

Legal Provisions Regarding Medical Records :

Ordinarily, hospitals and nursing homes should preserve records of patients for not less than 3 years, so that when a case is filed :

(i) Under the CP Act, where the limitation for filing a complaint is 2 years;

(ii) Or under law of court, where the limitation is 3 years, record can be produced in defense of your case, or it may be required to be produced by the consumer forum or civil court but in new-born cases, medical records should be preserved for not less than 3 years after the child attaining majority age of 18 years, the reason being that such minor’s cause of action subsists upto 2 years after attaining majority under the C.P. Act and upto 3 years under the civil law.

The provisions of specific Acts like the Pre Conception Prenatal Diagnostic Test Act, 1994 (PNDT), Environmental Protection Act, etc. necessitate proper maintenance of records that have to be retained for periods as specified in the Act. Section 29 of the PNDT Act, 1994 requires that all the documents be maintained for a period of 2 years or until the disposal of the proceedings. The PNDT Rules, 1996 requires that when the records are maintained on a computer, a printed copy of the record should be preserved after authentication by the person responsible for such record.

Criminal Negligence

As regards criminal liability of medical practitioners, Supreme Court in a recent judgment in the case of Dr. Suresh Gupta vs. Govt. of Delhi curtailed criminal proceedings against medical negligence to incidents of gross negligence. It held that a medical practitioner cannot be held punishable for every mishap or death during medical treatment. No criminal liability should be attached where a patient’s death results from error of judgment or an accident. Mere inadvertence or some degree of want of adequate care and caution might create civil liability but would not suffice to hold him criminally liable.

Even where gross negligence is alleged, a prima facie case must be established before a magistrate at the first instance as was pointed out in Dr. Anand R. Nerkar vs. Smt Rahimbi Shaikh Madar It is necessary to observe that in cases where a professional is involved and in cases where a complainant comes forward before a Criminal Court and levels accusations, the consequences of which are disastrous to the career and reputation of adverse party such as a doctor, the court should be slow in entertaining the complaint in the absence of the complete and adequate material before it.

In Jacob Matthew V State of Punjab the apex Court has also laid down guidelines for prosecuting doctors:

1. A private criminal complaint should not be entertained unless the complainant has produced prima facie evidence in the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence. 

2. The investigating officer, before proceeding against a doctor, should obtain an independent medical opinion preferably from a doctor in government service qualified in that branch of medical practice. 

3. The accused doctor should not be arrested in a routine manner unless his arrest is necessary for furthering investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor will abscond

N.B. The limit of penalty imposed on opposite party, if the complaint made against medical practitioners is found to be frivolous or vexatious (as per the amendment in section 26 of the CPA in 1993) should be exceeded from present Rs. 10000/- to Rs. 50000/- so that frivolous complaints will be reduced.