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REVIEW ARTICLE
Year : 2016  |  Volume : 19  |  Issue : 5  |  Page : 3-8
 

Legal challenges in neurological practice


Department of Neurology, Krishna Institute of Medical Sciences, Secunderabad, Telangana, India

Date of Submission30-Aug-2016
Date of Decision04-Sep-2016
Date of Acceptance04-Sep-2016
Date of Web Publication24-Oct-2016

Correspondence Address:
Sita Jayalakshmi
Department of Neurology, Krishna Institute of Medical Sciences, 1-8-31/1, Ministers Road, Secunderabad, Telangana
India
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Source of Support: None, Conflict of Interest: None


DOI: 10.4103/0972-2327.192888

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   Abstract 

Clinical neuroscience has made tremendous advances over the last century. Neurology as a discipline is still considered challenging and at times risky due to the natural history and progressive course of few of the neurological diseases. Encouragingly, the patient and their caregivers are now increasingly willing to be actively involved in making decisions. The patients' relationship with the doctor is a reflection of the society. A society that is orienting itself toward “rating” and “feedback” has made this doctor–patient relationship, a consumer–service provider relationship. This perhaps is due to commercialization of health that usually accompanies globalization. Moreover, a rapid influx of information from potential erroneous sources such as the Internet has also made patient and caregivers not being hesitant to taking legal course in the case of adverse events during treatment or simply because of dissatisfaction. The purpose of the legal process initiated by patients with neurological ailments is more often to compensate for the income lost, physical and psychological anguish that accompanies disease and its treatment, and to fund treatment or rehabilitation requirements. However, it is not clearly established if monetary benefits acquired lead to better opportunities for recovery of the patient. The consumer protection act and commercialization of medical services may well have an adverse effect on the doctor and patient relationship. Hence, there is a great need for all medical professionals to mutually complement and update each other. This review examines legal (litigation) processes with special interest on medicolegal system in patients with neurological ailments and the challenges faced by the neurologist during day-to-day clinical practice.


Keywords: Clinical neurology, counseling, legal issues, litigations


How to cite this article:
Jayalakshmi S, Vooturi S. Legal challenges in neurological practice. Ann Indian Acad Neurol 2016;19, Suppl S1:3-8

How to cite this URL:
Jayalakshmi S, Vooturi S. Legal challenges in neurological practice. Ann Indian Acad Neurol [serial online] 2016 [cited 2017 May 30];19, Suppl S1:3-8. Available from: http://www.annalsofian.org/text.asp?2016/19/5/3/192888



   Introduction Top


Neuroscience has made tremendous advances over the last century. In fact, this dramatic advancement has led to the advent of never before off-shoot specialties such as neuroradiology, vascular neurology, epilepsy, movement disorders, cognitive neurology, neuro-oncology, neuropsychology, and neurorehabilitation.[1] However, neurology as a discipline is still considered challenging and even risky due to the natural history and progressive course of few of the diseases. Complications as a part of the course of a neurological disease are common and can cause serious functional damage and a poor quality of life. Encouragingly, the patient and their caregivers are now increasingly willing to be actively involved in making decisions pertaining to his/her health due to a massive influx of information (though not always a proper understanding) through media and the World Wide Web.[2] Therefore, good clinical practice has improved from being doctor–patient relationship to doctor–patient–caregiver relationship. However, a rapid influx of information from potential erroneous sources such as the internet has also made the patient and/or caregiver not hesitant to take a legal course in the case of adverse events during treatment or simply because of dissatisfaction.[3] Therefore, a patient becomes a consumer as clinical neurology becomes a commodity and no longer a health service. The purpose of the legal process initiated by patients with neurological ailments is more often to compensate for the income lost, physical and psychological anguish that accompanies disease, and to fund treatment or rehabilitation requirements.[4] However, it is not clearly established if monetary benefits acquired lead to better opportunities for recovery of the patient.[4]

The relationship between patient and doctor in India has been well narrated from times unknown; Aryans personified the term “Vaidyo Narayano Harihi” (meaning doctors are equivalent to Lord Vishnu). However, this relationship has increasingly been under strain in recent times possibly due to globalization of health-care delivery services. The patients' relationship with the doctor is a reflection of the society. A society that is orienting itself toward “rating” and “feedback” has made this doctor–patient relationship, a consumer–service provider relationship. This perhaps is due to commercialization of health that usually accompanies globalization. On the one hand, encouragingly, hence, public awareness of medical negligence in India is growing. However, on the other hand, much of the awareness is obtained from inaccurate sources such as the Internet and patient education content is often mistaken to be evidence for practice standards. This misleading information often results in grievances and attacks by the family members on doctors, under-estimating standards of professional competence, and inappropriately judging treatment given. The consumer protection act and commercialization of medical services may well have had an adverse effect on the doctor and patient relationship. Hence, there is a great need for all the medical professionals to mutually complement each other and to update oneself on legal challenges encountered in neurological practice.

Medical errors are reportedly the third leading cause of death.[5] Substantial amount of these errors is due to substandard care.[6] The most common reasons are failure to diagnose, lack of informed consent, or absence of proper guidelines for the treatment. Among malpractice claims, severity of the patient's disability predicts the payment to the plaintiff but not the occurrence of an adverse event or an adverse event due to negligence.[7] These errors could possibly be curtailed by emphasizing continuous learning activities and advocating evidence-based medicine, both of which are more likely to be attained in institutes that encourage academics and research, both in public and private sectors. Similarly, one of the crucial limitations in conducting extensive diagnostic workup is the financial constraints in developing countries such as India where a majority of patients do not have health insurance. This review examines legal (litigation) processes that can be potentially associated with care of patients with neurological ailments and challenges faced by the neurologist during day-to-day clinical practice.


   Clinical Challenges of Neurological Disease Top


Every discipline in medicine poses its unique set of challenges in delivering patient care. Neurological disorders are often disabling and chronic with a potential of creating anxiety in the doctor, patient, and caregiver increasingly over time. Few of the challenges that neurologists often face include the following.

Evolution of the disease

Prediction of progression or relapse of a neurological disease is often very difficult due to ill-defined markers of disease evolution.[8] Neurological conditions such as vasculitis syndromes, Parkinsonian syndromes, and motor system diseases are ambiguous at the onset and progress over time with diagnosis often made during follow-up visits. Degenerative neurological diseases start insidiously and evolve progressively with time while relapsing neurological diseases may remit completely or result in progressive deficits. For the most frequent neurological diseases with a relapsing clinical course, such as multiple sclerosis, brain infarction, and epilepsy, it is shown that disease-specific etiopathogenesis, lesion-specific pathophysiology, and nonspecific bystanders determine disease manifestation.[8] Affected systems need to be assessed by clinical evaluation and investigations and to be ascribed to disease-specific pathology. Many patients require hospital admission because of diagnostic challenges or on nursing grounds alone. It is now accepted that most patients, whether admitted to hospital or not, need early access to hospital-based facilities such as computed tomography.[9] Therefore, hospitals need to develop both inpatient and outpatient services in collaboration with primary care, which can respond rapidly, to make a proper diagnosis as disease evolves.

Severe disability related to the disease

The disability related to neurological diseases such as major strokes, multiple sclerosis, and Parkinson's disease is well documented. Survival in these neurological conditions does not always assure quality of life. A poor quality of life of patient often affects family members psychologically, financially, and physically. Slow recovery and chronicity of disability often lead to extreme mood swings in both patient and caregivers, which range from anxiety to depression with a resultant helplessness. The frustration of helplessness is often misdirected toward the treating physician who is crucial but only a part of the rehabilitation team and not the entirety of the management process.

Clinically, the success of a treatment strategy in neurology is measured using functional outcome of a patient. Most of the existing outcome studies in neurology suggest that early diagnosis and intervention are the important factors in optimizing outcome.[10] Similarly, both duration of treatment and intensity of treatment also affect outcome. Reporting to health-care centers is often delayed in developing countries such as India. Resultant disability following any neurological insult or progressive disorder is greatly influenced by delayed diagnosis and resultant delay in initiating the appropriate treatment. A lack of understanding of the evolution/progression of disease and scarcity of appropriate infrastructure to manage patients effectively are considerable set-backs in health-care services in developing countries. In addition, numerous factors, not controlled by a neurologist, range from early identification of symptoms (by family/friends) to accessibility of good-quality treatment influence feasibility of delivering early intervention.[10] In fact, 11% of all legal cases are attributed to delayed diagnosis with a significant number of them being prehospital events.[3] In addition, both intensity and duration of treatment warrant financial affordability, which is a challenge in developing countries with very few or no health insurance coverage. Awareness programs sponsored by the state in association with hospitals may help educate general population about symptoms of most common neurological conditions such as stroke and epilepsy.

Prolonged disease course with unpredictable outcomes

Certain neurological diseases have an unpredictable course that requires prolonged care and monitoring in the Intensive Care Unit (ICU). This is common in patients with severe Guillain–Barre syndrome, large hemispheric strokes, and conditions such as superrefractory status epilepticus. Such patients need prolonged ICU and ventilator care associated with their inherent complications. In addition, it is a huge financial and emotional burden for the patient's family, with uncertainty about the survival of the patient.[11] It is a major challenge for the neurologist and the treating team to address the emotional stress of the family and to continue the care toward favorable outcomes, that is only possible in a proportion of such cases.

Cases with dilemmas in the management

In neurological conditions, there are dilemmas in the management and each physician may follow a different treatment protocol. For example, while administering tissue-type plasminogen activator (tPA) in acute stroke, dilemmas occur during decision-making warranting instant decisions by the doctors and family members. In a study that evaluated 789 cases litigated to tPA, 95% cases were related to failure to administer intravenous tPA. The remaining 5.0% claims involved complications of treatment with tPA. This suggests that only about 1 in 20 cases was litigated when complications occurred.[12]


   Practical Solutions for Challenges during Neurology Practice Top


Shared decision-making is now accepted as an optimal model for defining overall goals of care and making major health-care decisions based on values and preferences of patients.[13] For patients with advanced illness or who are incapacitated, families and other surrogates are often asked to participate in this collaborative process. Sufficient information makes this participation meaningful by improved understanding of the potential benefits and burdens of the treatment, including likely outcomes. However, that understanding of outcomes is not always easy to come by.[14]

Surrogate decision-makers may be experiencing high levels of emotional stress and may have conflicting attitudes about or internal tensions related to prognostic information. On the one hand, most surrogates indicate that they would like to receive such information even if the prognosis is unfavorable.[15] At the same time, surrogates report that it is difficult to hear “bad news.” There is evidence that physicians offering an optimistic outlook are perceived by patients and families as more compassionate and skillful than pessimistic physicians.[16] Surrogates also tend to be overly optimistic about prognosis, and this may lead them to choose treatments for which burden exceed benefits and to delay initiation of care.[17]

Azoulay et al.[18] summarized the changing role of clinicians as “Clinicians often cite unrealistic expectations by surrogates as an important barrier to optimal care. In the past, some clinicians may have viewed their main role in communication as delivering information, but newer evidence indicates that other tasks are also essential. First, emotional responses by patients and surrogates typically emerge before receipt of disturbing information and may preclude cognitive processing of such information. Thus, a clinician's ability to recognize and respond to these emotions with empathy is a key skill. Second, clinician listening – being receptive to hearing about patient values and family concerns and using open-ended questions to encourage information from, not just to, the family – is important. Third, communicating uncertainty about prognosis is a central part of a clinician's work, perhaps 'the primary communication task.' Fourth, coordinating the full team of clinicians and other caregivers to provide a coherent and unified message and engaging the support of clinicians across professions and disciplines contribute to optimal communication for health-care decision-making while limiting conflict and distress for informal and professional caregivers.”

Coping strategies that are either conscious or unconscious, such as substituting their own beliefs or engaging in wishful thinking, may not only impair the families ability to comprehend information but also may impair the quality of their decision-making thereby burdening the disabled survivor. Efficient counseling programs may also help in reducing condemnation cases, which constitute to up to 14% of all legal cases.[3] A sample counseling form for the patient caregivers is summarized as [Fact Sheet 1]. It is advised to inform patients about the guarded prognosis (as anticipated) that may result despite best of efforts by the neurologists and caregivers.



[Table 1] outlines suggestions and Do's and Don'ts for neurologists during routine clinical practice. With this, the family will be more informed and satisfied and less likely to file malpractice claims.
Table 1: Do's and Don'ts in the regular daily medical practice

Click here to view



   Role of Expert Evidence Top


Expert evidence plays a significant role in the success of legal proceedings in neurology. Management of neurology patients involves a multidisciplinary approach. Therefore, inputs from a host of experts ranging from neurologists, psychiatrists, neurosurgeons, radiologists to occupational and rehabilitation therapists can be availed. Before testifying in any neurological case, it is therefore essential to all the practitioners to know legally defined scope of their practices.[4] Treating neurologists have personal knowledge about the patient's and caregivers' physical and psychological condition through chronological observations made during the treatment period. Experts (trails consultants) are retained only for the rendering their opinion and rarely possess first contact knowledge of the patient or caregiver. It is therefore essential that expert render opinion based on evidence-based established facts and not through anecdotal evidence.[4] Furthermore, experts should not favor any of the parties in neurological legal proceedings.

Taylor [4] further adds that “Courts should ascertain the need for expert testimony is well-established and based on scientific evidence. Courts must also ascertain that the proposed expert opinion is methodical and reasoning appropriately applicable to the particular trail. An appropriate method could probably be to (1) confirm the presence or worsening of injury/pathology, (2) explore the cause, nature, and extent of the injury/worsening, (3) effect of the injury/pathology on worsening the patient's existing functions, and (4) feasibility and efficacy of care and treatment options available. Most courts need a reasonable degree of probability of the above which generally is more than 50%; this could be improved by applying available literature about the neurological condition.”

Every complaint impacts the clinical practice of the neurologist and the reputation of the hospital. Therefore, safety and quality of patient care become ever important.[19] The challenge however is to minimize the expenses, particularly in developing nations with limited resources and sparse state-sponsored health insurance. In fact, accreditation procedure and standard operation protocols may help improve patient care.[9] Hospitals should define protocols to identify risk-prone areas, develop assessment and risk management tools, and recommend preventive measures.[9] Data from retrospective analysis of neurosurgery hospitals in France revealed that 9% of all legal complaints were due to lack of appropriate supervision of the patients.[3] Growing budget deficits in hospitals lead to restructuring and/or reorganization of patient care with increasing demand on paramedics and allied health professionals to stretch working hours and be flexible.[3]


   The Benefit of Multidisciplinary Approach Top


To avoid neurolitigation, patients with neurological ailments may require the services of a host of expert professionals. This group is often called the multidisciplinary team. The team includes practitioners from many disparate disciplines – neurosurgery, psychiatry, neuropsychology, speech/language/hearing pathology, physical/rehabilitation/occupational therapy, and nursing. The various members of this team are well known to most clinicians; each team member may have a vital role to play during neurolitigation. Since neurotrauma is a very complex subject, to prevail in neurotrauma cases, it is necessary for the claimant to produce an abundance of high-quality expert testimony. Hospitals should constitute a multidisciplinary team consistent with clinical practice to evaluate and avoid litigations.


   Understanding Legal Definitions of Specific Terms: Important for Clinicians Top


To err is human and all errors are not negligence. One should follow the standards of practice and it should never cross the expected norm or available evidence of medicine. Neurologists must become familiar with legal definitions that are relevant to their practice.[4] Clinicians must first understand that they only justify about matters within the scope of their professional practices, customarily defined by a state's statutory law codes. Sometimes, those codes speak in general terms, and at other times, they address specific specialties. For example, every state code defines the practice of medicine and medical doctors therefore must know what is embodied in the legal practice of medicine if they are to apprehend the proper scope of their professional practices. Perhaps, it is essential that all practitioners know the legally defined scope of their practices. This may be included as mandatory in the academic curriculum at undergraduate level of education. Most legal knowledge specific to the specialty/superspecialty must be inculcated during postgraduation academics. Using the language found in definitional statutes of state in their records, reports, and testimony, clinicians “speak the language of the court,” increasing the probability that their testimony will be admitted at trial and upheld by an appellate court.


   Conclusion Top


Patients are the priority for all doctors who are part of this noble profession. In spite of many challenges during neurological practice, physicians should do what is best for their patients which may not necessarily best for oneself. Physicians must ensure that their decisions are scientific, humane, and current and are in the best of interest of the patient and their family members. The physician should counsel the patient and the family members and explain all aspects of disease and treatment in as simple language as far possible and should win their confidence. The hospital and physician should maintain proper records to fulfill both medical as well as legal criteria. Once the guidelines are followed, there is no need to worry about any individual, administration, or tribunal.

Financial support and sponsorship

Nil.

Conflicts of interest

There are no conflicts of interest.

 
   References Top

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Emery E, Balossier A, Mertens P. Is the medicolegal issue avoidable in neurosurgery? A retrospective survey of a series of 115 medicolegal cases from public hospitals. World Neurosurg 2014;81:218-22.  Back to cited text no. 3
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Bhatt A, Safdar A, Chaudhari D, Clark D, Pollak A, Majid A, et al. Medicolegal considerations with intravenous tissue plasminogen activator in stroke: A systematic review. Stroke Res Treat 2013;2013:562564.  Back to cited text no. 12
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Mark NM, Rayner SG, Lee NJ, Curtis JR. Global variability in withholding and withdrawal of life-sustaining treatment in the Intensive Care Unit: A systematic review. Intensive Care Med 2015;41:1572-85.  Back to cited text no. 13
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