Medico-legal Study: Spouse Consent

8:37 AM

The contents of this post is for the sake of discussion and analysis. The decision of the court of law is duly respected. Contents are sourced via public domain freely available on line. There is no intention to discredit anyone involved in the case.

Sunday Star on 24th November 2013 regarding spousal consent.

This topic is quite intriguing. There was another article the week before regarding medical consent as well. According to The Oxford English Dictionary, informed consent refers to

Permission granted in full knowledge of the possible consequences, typically that which is given by a patient to a doctor for treatment with knowledge of the possible risks and benefits.

Palace of Justice
Under normal circumstances, consent from an adult with sound judgment and mind is adequate. It seems straight forward. If an individual can think for themselves, they have the RIGHT to refuse or accept a treatment. However, by looking at the case of Abdul Razak Datuk Abu Samah Vs Raja Badrul Hisham Raja Seseman Shah getting consent from an adult is NOT ENOUGH.

I went through the judgement after obtaining it online and made a quick analysis.

Patient was an elderly lady admitted to Hospital Temerloh in 2010 for adhesion colic and was treated conservatively. The patient was then transferred to HKL for further treatment. Apparently the patient's husband knew the doctor at HKL and asked to be transferred there...the first RED FLAG.

"The Plaintiff spoke to the 1st Defendant and the 1st  Defendant agreed to treat the Patient. The Plaintiff had  3 specifically arranged for the 1st Defendant to treat the Patient, as he knew the 1st Defendant personally, having been previously treated by the 1st Defendant professionally. The 1st Defendant had also assessed the Patient’s condition by speaking to her doctors at the Temerloh Hospital."
After 3 days of stay at HKL, a decision was made for emergency surgery in view of investigative findings suggestive of intestinal obstruction.

“On the morning of 31.5.2010, I was at home preparing to visit my wife when I received a telephone call from her. She told me that Raja Badrul wanted to speak to me. Over the telephone, Raja Badrul informed me that he had to operate on my wife that very day. I agreed to the operation.”

One doctor informed the husband that the operation was a success while another informed him that there were complications during the surgery. The patient had aspiration pneumonia, initially attributed to failure of the patient to consent for Ryle's tube insertion. In the end, the patient passed away due to aspiration pneumonia.

1.The attending doctors should have inserted Ryle's tube prior to induction of anaesthesia
2. Negligence in providing due care to the patient
3. Failure, refusing and neglecting to advise the patient and her husband on the risk of surgery

1. Ryle's Tube Insertion
It is an accepted medical practice to insert Ryle's tube to decompress the stomach. It is done in most settings. However, according to the expert opinion it does not completely eliminate the risk of aspiration. In this case, the patient was documented to have refused Ryle's tube insertion after multiple persuasions by medical staff. According to the husband, more can be done to persuade his wife to insert the Ryle's tube including to CALL THE HUSBAND.

"The Plaintiff’s counsel submits that there is no evidence of the 1st Defendant:-
i. informing the Patient that it was vitally important to have the Ryle’s tube inserted to prevent aspiration;
ii. ensuring that the Patient appreciated the importance and need for the Ryle’s tube insertion and that it could possibly save her life;
iii. assuring the Patient that he could supervise the Ryle’s tube insertion if she wished to have him present during such insertion;
iv. neither did he tell that he could make the insertion himself and that he would do so gently and as  painlessly as he reasonably could"

“If I had known of such danger, I would not have allowed the operation to go on. I would have  persuaded my wife to allow the doctors to insert the tube before the operation or before she was put to sleep. I would have insisted that the doctors not perform the operation until they have exhaustively attempted to insert the tube or employed other means to remove her stomach contents. Had I known of the grave risks involved and had the hospital been unsuccessful in removing her stomach contents before the operation, I would have sought second opinion, changed doctors or hospital or
sought treatment elsewhere. The fact of the matter is that I was never informed."

The court decided that the doctor failed to explain in detail to patient's husband on risk of surgery.

In the doctor's defense:
On the issue of not inserting the Ryle's tube, the court decided that the doctors have not been negligent in view of evidence stating that they have prepared for risk of aspiration by performing Rapid Sequence Induction(RSI) and performing cricoid pressure. Furthermore, there has been cases of aspiration leading to death even though Ryle's tube was inserted.

2. Consent from Husband

" According to the Plaintiff (husband), the Patient would not make any decision to go ahead with surgery without first having discussed the same with him. The Plaintiff in his testimony had stated that the 1st Defendant (Doctor) had full and personal knowledge that the Plaintiff was the one who made decisions with regards to the medical treatment of the Patient.”

"The 1st Defendant said nothing to the Plaintiff about the inherent dangers or risks of proceeding with the surgery without a Ryle’s tube inserted”

The above excerpts indicate that the husband was not well informed of the risk of surgery. Apparently going for a surgery IS NO CAUSE FOR CONCERN.
According to the husband
“If I had known of such danger, I would not have allowed the operation to go on. I would have  persuaded my wife to allow the doctors to insert the tube before the operation or before she was put to
sleep. I would have insisted that the doctors not perform the operation until they have exhaustively
attempted to insert the tube or employed other means to remove her stomach contents. Had I
known of the grave risks involved and had the hospital been unsuccessful in removing her stomach
contents before the operation, I would have sought second opinion, changed doctors or hospital or
sought treatment elsewhere. The fact of the matter is that I was never informed. "

The court decided that the doctor failed to explain in detail to patient's husband on risk of surgery.

Quite a lengthy blog post I must say. I suggest that everyone download a copy of the judgment to get a feel of the proceedings. Just click on this link.

My condolence to Mr Abdul Razak. Losing a loved one must have been very difficult especially under circumstances like this. The High Court must have gone through all aspects before coming up with a verdict and I respect that. However, it is sad to see fellow medical professionals having to put up with this situation. Imagine what it’s like to have accepted the case from another hospital with the intention of helping an acquaintance, just to have the acquaintance putting all the blame on you. It must very depressing. But that is life in the medical field.  Sometimes you just CAN'T TRUST YOUR PATIENTS. Let's dissect the issues one by one.

1. Receiving calls from patients or their relatives
When I was in Emergency Department, I received quite a few calls from patients and relatives asking for treatments and opinions over the phone. I usually ask them to come over to the nearest medical center to get a proper assessment. I don't intend to add additional burden to the medical staff but I will not let them quote my name whenever something goes wrong. An example:

"I did not bring my wife to the hospital because I called up Dr MOfrust and he said my wife would be okay at home. He didn't tell me it can be fatal. I’m suing him!
I once got a call from a patient's relative insisting that he doesn't want to come to a healthcare facility but just want an opinion. I just told him off.

"You can quote my name and report to my hospital director but I am not going to give consultations over the phone!"

2. Consent for procedure
I still don't get this part. If a person is of sane mind and can think for themselves why can't an individual give their own consent? Imagine having to run the whole department and all the emergency surgeries and at the same time having to come to PUJUK (persuade) ONE patient out of hundreds others who vehemently decides against inserting a Ryle's tube. HKL is not small, it's HUGE. Even though it was documented in the records, it did not hold any value. What would happen if doctor proceeded with Ryle's tube insertion anyway? Next day's Harian XXX  headlines will be


Furthermore, in a busy hospital a window period to get into surgery can be hard to come by. What if a slot is available for emergency surgery and it had to be delayed just to get another adult's consent? It would be a waste of precious time.

However, I do agree that more could have been done to inform the husband and the patient regarding the surgery. A typical surgery consent form looks like this:

Keizinan Pembedahan
This form is too general and a more detailed form may be required for major surgeries. A specific checklist of risks, tailored to specific surgeries may be useful. This may prevent doctors from missing anything and patients can keep a copy for future reference as well.

Why won’t you listen, listen, listen! My orthopedic specialist used to emphasize a lot of this and it IS important. However, it appears it does not hold much value. Even though it was documented that patient refused for Ryle’s tube insertion, the blame still lies on the medical staff. Maybe a proper clarification regarding the dos and don’ts is necessary to come up with a solution for cases like this. Nowadays, I DON’T CARE if patients have to wait for me to see them because I have to make sure my documentations are LAWYER PROOF or UN-SUE-ABLE. They can complain all they want but they won’t be the one paying for your expenses if I get sued.

This case is a great eye opener for me…..and makes me “fruster” (more frustrated). No one will actually know what transpired that day. Did the attending doctor do their best in the management of the patient? Did the doctor actually explain to the patient and her husband but did not document properly? I have only been a medical officer for a few years but I do know that the BLAME GAME is rife in the health system….and it is NOT healthy for the medical staff.

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  1. I find your opinion on "Consent for procedure" absolutely selfish and no brainer. A consent form is only a physical paper to document a green light to the procedure. Whether the patient was sane or insane at time of consent, it is still a no excuse duty for a medical professional to explain the risk of the course and importance of certain neccessity. If this duty is an excuse due to huge walking area, I can't fathom is your running legs worth more than a patient's life? Window period is neither an excuse. You can claim it takes precious seconds to decide without a delay and succeed in saving a life, so is the reverse. A life can be snuffed out within seconds of wrong hasty judgment just to cater the window period and 'lucky' slot that is hard to come by. Please, a title of medical professional is to be uphold with great professionalism, not making excuses over nitty gritty. A job scope is not confine within what's stated in the paper, there's a need to go beyond to ensure of patients' care, Mr Medical Officer.

  2. Also, when documenting tediously to ensure you are unsueable while ignoring patients lengthy wait, please make sure you give the same tedious assessment to their health condition to make sure they are given your best medical advice to prevent unwanted complaints.

    The only eye opener lesson you should comprehend from this saga is not how hefty a blame game in health care can be, rather to understand how detrimental an episode can be should insufficient consent measures ain't given before a surgery procedure. Yes maybe few years as a MO hasn't give you this general intelligence yet. How disappointing.

  3. Thank you lysa for the comment. I do agree that getting a consent form is just a piece of paper, just like any other agreement. As stated in the judgement and witness accounts, the procedure was explained by at least three doctors. Without consent, the procedure would not have been carried out. If the procedure wasn't explained properly, the patient has a right to refuse treatment. But why did the patient sign the consent form?
    As I mentioned in the blog, the current consent form is outdated and not specific. Thus, I suggested that more documentation is needed in the consent form such as specific complications. Furthermore, prior to the surgery, the OT staff will go through a check list. One of the content of the checklist is to verify that the patient actually signed the consent form and knows what surgery is to be performed.

    Regarding documentation, I see doctors try to make ends meet to document everything properly but sometimes other patients fail to respect doctor-patient confidentiality by barging into a consultation room shouting at doctors to be quick. Yes, we do try to explain everything to patients and most of the time I WILL ask patients if they have any other problems or questions.

    I invite you to just sit down for a day and observe for yourself how a life in a government hospital can be. But of course, nobody can have time for that. In the end, it's what we others has commented before "I should just do what I was paid to do"

    My blog might not be for everyone. But it is for the public to get a glimpse of my working life.

  4. Setelah beberapa ketika saya mengikuti blog ini, saya rasa terpanggil untuk memberi komentar kerana saya terkilan dengan sikap manusia yang seperti melepaskan anjing tersepit, sudah dilepaskan kita digigit balik.

    Kesalahan tidak sepatutnya diletakkan sepenuhnya keatas MO. MO sudah cuba yang terbaik dalam memberi nasihat tentang prosedur yang akan dibuat dan risiko yang akan dihadapi. Berdasarkan pengalaman saya sendiri, seorang kawan saya mengalami stroke pada sebelah pagi dan tidak sedarkan diri telah dirujuk kepada Hospital yang berdekatan di Temerloh, MO telah menerangkan apa masalah yang dihadapi oleh kawan saya. Dan majikan kawan saya telah merujuk kepada seorang 'well known neurology's doctor' disebuah hospital swasta utara tanah air. MO di Hospital Temerloh begitu keberatan untuk mengizinkan kawan saya untuk travel dr Temerloh ke Ipoh dengan keadaan yang begitu uzur tetapi majikan kawan saya berkeras untuk membawa kawan saya ke hospital tersebut.

    MO di hospital Temerloh telah menerangkan segala risiko yang bakal dihadapi semasa dalam perjalanan, tetapi atas dasar tawakal, majikan kawan saya sanggup untuk menanggung segala risiko dan MO Temerloh telah meminta majikan kawan saya untuk tandatangan consent form untuk tidak mengambil sebarang tindakan undang-undang jika berlaku apa-apa kejadian yang buruk ketika dalam perjalanan. Dan akhirnya dengan kuasa Allah, kawan saya selamat dibedah dan masih hidup walaupun badan tidak dalam keadaan normal seperti sebelum stroke.

    Moralnya disini, saya sokong MO frust dalam berkongsi pendapat dan pengalaman dan beban kesalahan tidak seharusnya diletakkan keatas MO atau hospital jika berlaku apa-apa komplikasi semasa atau selepas menerima rawatan.

    Bagi mereka yang tidak memahami situasi, letakkan diri anda ditempat mereka yang menjalankan tugas sebelum membuat apa-apa rungutan atau menuding jari. Sebelum saya mengarut lebih panjang, saya berhenti disini dahulu.

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