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BusinessAccent
Take Consent for Blood Transfusion: Avoid Negligence
The decision to transfuse blood or blood products must be
based on a careful assessment—indicating they are necessary for saving
life or for preventing a major morbidity
Dr Suganthi Iyer |
Consent is essentially an agreement between two or more persons
and where provisions of Indian Contract Act are applicable. When two or more
persons agree upon the same thing in the same sense, they are said to be in
consent. Action taken in absence of consent amounts to assault as is illustrated
in the below mentioned case.
In late 1990's, 'L'—a complainant—suffered from
bleeding of uterus and was admitted to 'G' Hospital wherein hysterectomy was
performed. Subsequently, two units of blood was transfused to the patient which
was brought from 'QM' clinical laboratory, which did not conduct any test to
satisfy itself that it was free from infections like HIV and more. The Hospital
authorities also did not cross check whether there is a certificate in this
regard.
The consent taken for the surgery stated: "I am hereby
giving my consent for conducting operation on my wife for removal of her uterus
after giving anaesthesia." There was no consent expressed for blood transfusion.
In mid-1994, 'L' developed recurrent loose motion, weight loss, respiratory
infection and difficulty in swallowing, for which a blood test was done by the
second opposite party which showed that HIV antibodies were present. In July
1995, she developed left sided hemiparesis, oral candiasis and pulmonary tuberculosis.
She was hospitalised when she became unconscious and expired in August 1995.
Any blood bank/laboratory supplying blood is duty-bound to
ensure that the blood supplied is free from HIV and other infections. The second
opposite party had failed to carry out the test required to ensure that the
blood was not infected. The blood supplied by the second opposite party to the
first opposite party for transfusion had HIV antibodies. The first opposite
party also owed a duty to the patient to ensure that the blood which it was
transfusing her was free from HIV/AIDS. There was thus a gross and patent negligence
on the part of both the opposite parties while transfusing the blood with the
result that the complainant's wife lost her life on account of this negligence
and deficiency in service on the part of the opposite parties.
Out of the three modes of transmission of HIV/AIDS, the most
dangerous one is through the transfusion of blood having the virus. The sole
reason for the complainant's wife developing HIV/AIDS was the transfusion of
the blood contaminated with the HIV virus done by the opposite parties after
the operation in December 1990. The complainant's wife and the complainant had
absolutely no reason for getting HIV infection. The infection developed into
full blown AIDS three-and-a-half years later. It is well-known that persons
who are infected with HIV develop complications subsequently after the gestation
period/window period.
Some Case Studies Reibl Vs Hughes
 In
Reibl Vs Hughes, the patient was operated for major occlusion in the artery
and the patient suffered massive stroke during surgery. It was stated that an
action for damages lies for trespass to person and hence negligence. It is the
duty of the surgeon to explain problems and specific risks of surgery and also
risks of continuing without surgery. The doctor had informed the patient only
the mechanics of surgery and had failed to communicate purpose or gravity of
operation or risks involved and hence the defendant was negligent in failing
to carry out his duty. Hence, damages were awarded.
Malette v/s Shulman
In Malette v/s Shulman, the case reflects that a doctor is
liable in law for administering blood transfusion to an unconscious patient
when the patient is carrying a card stating that she is a Jehovah's witness
and as a matter of religious belief rejects blood transfusion under any circumstances,
fully realising the implications of the situation and no objection to the use
of non-blood alternatives like Dextran. In this case, despite the card found
on lady Malette, blood transfusion was given when condition deteriorated. The
Court held that: The doctrine of informed consent has developed in the law as
the primary means of protecting a patient's right to control his or her medical
treatment. Under the doctrine, no medical procedure may be undertaken without
the patient's consent obtained after the patient has been provided with sufficient
information to evaluate the risks and benefits of the proposed treatment and
other available options. The doctrine presupposes the patient's capacity to
make a subjective treatment decision based on her understanding of the necessary
medical facts provided by the doctor and on her assessment of her own personal
circumstances. A doctor who performs a medical procedure without having first
furnished the patient with the information needed to obtain an informed consent
will have infringed the patient's right to control the course of her medical
care, and will be liable even though the procedure was performed with a high
degree of skill and actually benefited the patient.
It was held that:
- Consent of the patient is required for transfusion
of blood. In this case, it is clear from the records that the complainant
has given his consent only for hysterectomy operation to be performed under
general anaesthesia and not for transfusion of blood. Surgery involves risk
and blood transfusion involves additional risk. There is a strong force in
the argument that the consent should have been taken or there should have
been explained to the complainant of the risk of blood transfusion by the
attending surgeon.
- The laboratory was duty-bound as per the Drugs and
Cosmetics Rules duly amended on July 11, 1989. Rule 66 (A) which clearly stipulates
a mandatory condition of conducting HIV antibody test before certifying the
purity of blood. This was not complied with by the blood bank and clinical
laboratory. The doctor merely stated that she relied on the clinical report
of the blood bank who conducted the test but she did not insist for the blood
test certificate. There is no mention about the clinical record maintained
by the doctor that the blood was bound to be free from infection. This is
a clear case of negligence on the part of both opposite parties.
The complaint was allowed and compensation of Rs 4 lakh awarded
as it was clear from the records that blood transfused resulted in contracting
HIV infection which ultimately after gestation period became full blown AIDS
and the patient succumbed to her terminal illness.
The writer is Assistant Director (Medical) PD Hinduja Hospital
Mumbai
E-mail: drsiyerin@yahoo.co.in
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