To Err is Human: Post Mortem of the recent Max controversy

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“A premature (22 weeks) newborn was allegedly declared dead. While being taken for the funeral, the newborn was discovered to be alive, put on life support system, and died after 5 days. His twin was stillborn.”

This was a ‘medical error’ caused due to wrong diagnosis and declaring a newborn dead in the presence of hypothermia. This amounts to professional incompetency and it is for the MCI or State Medical Council to take necessary action against the concerned doctors.

Clinical death vs permanent death is a concept that started after the introduction of CPR in the country. A similar mistake occurred in Safdarjung hospital in June 2017, that of terming clinical death as brain death. In clinical death, the person may have no signs of life, but the brain remains alive for 10 minutes in routine deaths and for few hours in hypothermia. CPR during this period can revive the heart.

There is always opportunity in adversity and the same is true for this incident as well. Measuring rectal temperature in newborn is not currently the practice. However, in view of this incident, measuring rectal temperature should now become part of the protocol adopted before declaring a newborn dead. This will ensure that no patient is declared dead under conditions of hypothermia.

Mistakes or errors are a part of clinical practice. They should be accepted as there is always a lesson in them. However, with knowledge, we can learn more about how to avoid them.

This was, however, not a case of criminal negligence.

For this incidence to be called criminal negligence and to apply Section 308, there should have been an intention to declare an living baby dead or the knowledge that the baby was alive. According to me, the doctor on duty was unaware that the baby was alive.

Even today, not everyone knows that in hypothermia, the brain can remain alive for few hours.

I personally feel such mistakes will continue to happen until widespread dissemination of this knowledge is undertaken.

Are medical errors common?

The Institute of Medicine released their landmark report To Err Is Human in 1999 according to which 98,000 people die in US hospitals every year from preventable medical errors.

In 2013, there were about 400,000 deaths from preventable medical errors. Today, 1.7 million Americans are victims of preventable medical errors, which lead to as many as 440,000 deaths annually. In India, the number is likely to be higher.

Was this mistake avoidable?

I feel mistakes occurred at every level. The first one was by the first junior doctor, second by nurse, third by the senior nurse, and lastly by the consultant. If the child was alive, at least one of them could have noticed.

It’s clear that the child had no heart beat and hence the error in judgment.

Also, the very fact that all concerned missed the diagnosis of alive brain indicates the level of ignorance and absence of established protocols in the medical society.

IMA has since issued an advisory to make sure that all practitioners are aware of this fact. It is also creating guidelines regarding declaring death in hypothermia cases.

Doctors and nurses also make mistakes as a part of their learning curve. Only bad doctors sexually molesting patients, stealing drugs, or making a wrong diagnosis with no insight need to be punished.

Definition of abortion

As per the Medical Termination of Pregnancy Act, termination of a pregnancy at 20 weeks is an abortion and delivery after 20 weeks and before 37 weeks is a premature delivery.

What is prematurity?

Prematurity is defined as a birth that occurs before the completion of 37 weeks (less than 259 days) of gestation. It is associated with approximately one-third of all infant deaths and accounts for about 45% of children with cerebral palsy, 35% of children with vision impairment, and 25% of children with cognitive or hearing impairment.

The risk of complications increases with increasing immaturity. Thus, infants who are extremely preterm (EPT), born at or before 25 weeks of gestation, have the highest mortality rate (approximately 50%) and if they survive, they are at the greatest risk for severe impairment.

What is fetal viability?

A fetus delivered after 28 weeks or one with a weight > 900 gram is a viable fetus; no consent is required for active resuscitation (surfactant and ventilator if required)

What about 20-28 weeks?

Today 20-28 weeks means extreme prematurity. The fetus must be put on warmer and symptomatic therapy. It is a norm to not put the fetus on ventilator. However, if the parents insist on placing the 22-week-old baby on ventilator, the doctors can find it extremely hard to refuse. The process should then be carried out only after informed consent. In cases the patient cannot afford, he or she must be transferred by the private hospital under supervision to a government hospital with nursery facility.

Classification of prematurity

Preterm infants can be classified according to gestational age (GA) as follows.

  • Late preterm birth: GA between 34 and 37 weeks
  • Very preterm birth: GA less than 32 weeks
  • Extremely preterm birth: GA at or below 28 weeks

Preterm infants are also classified by birth weight.

  • Low birth weight (LBW): Less than 2500 g
  • Very low birth weight (VLBW): Less than 1500 g
  • Extremely low birth weight (ELBW): Less than 1000 g

When to declare death?

No death to be declared in presence of hypothermia.

What is hypothermia?

A core body temperature of 90-95°F (32 to 35°C) is mild hypothermia, 82 to 90°F (28 to 32°C) is moderate hypothermia, and below 82°F (28°C) is severe hypothermia.

In about 14% of premature babies, core body temperature below 35°C is common.

Can a fetus appear dead when it is not?

In severe hypothermia, cold slows or stops the metabolic machinery underlying body function. The metabolism slows by approximately 6% for each 1°C (1.8°F) decrease in body temperature, such that at 28°C (82°F), the basal metabolic rate is approximately half of normal. At this temperature, all body systems begin to fail including circulation, ventilation, and the central nervous system. Patients often lose consciousness and vital signs may be absent. Muscle rigidity without shivering can be mistaken for rigor mortis. The absence of shivering and presence of stupor, skin flushing, muscle rigidity, hypoventilation, and circulatory failure means very cold patients often appear dead rather than hypothermic. This may partly explain why many severely cold patients are pronounced dead without consideration of hypothermia.

However, in this stage of severe hypothermia (core temperature <28°C or 82°F), a suspended metabolism may protect against hypoxia. There have been cases of patients surviving anoxia for 12 to 18 minutes at 28°C (82°F) and up to 60 minutes or more at 20°C (68°F). Intact recovery has been reported after submersion for up to 66 minutes, after hours of arrest without cardiopulmonary resuscitation (CPR), after CPR for as long as six and a half hours, and with total resuscitation times up to nine hours.

Thus, recognition of hypothermia in such patients may sometimes permit successful recovery despite prolonged arrest. Only with such recognition can the patient benefit from rapid, effective rewarming, and vigorous support.

How a doctor from Oxford, ‘Dr Amit Gupta’, would have managed a 22-week-old baby?

A 22-week preterm birth is not viable for life

Firstly, as a neonatologist, I would not expect to be called in to attend the delivery of babies that are preterm.

To put it in context, when a mother carries her baby for 9 months, it is a 40-week gestation period. Survival at 22 weeks gestation is only about 3% in the UK and 5% in the US.

These babies, weighing anywhere between 250 grams and 500 grams, are extremely fragile and have such severely immature organ systems that current technology struggles to transition them to full maturity. It is accepted practice to not offer resuscitation at 22 weeks. This may change in the future, but for now, the prognosis is grim for babies born at 22 weeks.

I would talk to parents and explain.

Before delivery, however, our obstetric staff would counsel the parents on the abysmal outcome of babies born so prematurely. Many would not even survive the process of labor. However, if they did, parents would be offered support and may choose to hold the babies, to stay with them, and take their time to say their prayers and goodbyes.

For a baby born alive, the parents would be explained that the babies might continue to show signs of life for several minutes or even hours.

Though it may sound shocking, we do come across cases where the heart rate is so faint after birth, the breathing so shallow and intermittent, that the doctor attending the delivery presumed that the baby is dead.

So, while it is crucial that the healthcare professional is 100% sure before death is pronounced, there have been cases where death has been falsely presumed.

Should babies be handed over in a plastic bag?

No. This reflects a poor attitude towards human dignity and the lack of empathy towards the enormous tragedy befalling the parents. Even if parents consider the death of a baby at 22 weeks as a miscarriage and choose to not carry out final rites, the body should be handed over respectfully. However, in this case, the plastic bag probably provided the warmth needed to revive the baby.

What is the answer?

The answer to such situations is: Fix the culture.

  • Communicate, communicate, and communicate
  • Compassion should be demonstrated in practice as much as in feeling. Health care is compassion and everything else stems from it. A compassionate attitude of staff in clinical medicine is more important than all the brilliant CVs, flashing monitors, and state-of-the-art equipment put together. The poor/inconsiderate/uncompassionate communication is at the core of why patients sue. A programme, which embeds a culture of transparency, openness and compassionate communication, makes both moral and financial sense.
  • Call relatives, meet them if they are willing, and then listen to them. When you think you have listened enough, listen some more (and switch your mobile phone off when you do!). Apologize for the pain they have undergone. Dont indulge in non-apology. An apology is not an admission of guilt, but an acknowledgment of the pain they have been through. And tell them what you would do so that other parents dont go through this experience.

Dr KK Aggarwal

National President IMA

Never declare a patient dead under conditions of hypothermia

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A core body temperature below 95 F is hypothermia. Core temperature 90 95 F is mild hypothermia 82 to 90 F is moderate hypothermia and core temperature below 82 F is severe hypothermia. In conditions of severe hypothermia in children body metabolism is suspended which may protect against hypoxia. Patients with core body temperature 82 F have been known to survive anoxia for 12 18 minutes and up to 60 minutes or more at core body temperature 68 F. Sometimes hypothermic patients can be successfully revived with CPR even with total resuscitation time of 9 hours. Because of dilated pupils asystole hypoventilation absence of shivering the patient appears dead. Because of failure to recognize this state the patient may be declared dead. Successful revival is also possible in adults because of the neuroprotective effects of hypothermia. Several hours of CPR may be required for this. Efforts to revive the patient should be continued till the core body temperature reaches 90 95 F i.e. bring the temperature from severe hypothermia to mild hypothermia or normal. If the patient still cannot be revived with CPR then he she can be declared dead. The recent incident of a premature 22 weeks newborn who was alive but allegedly declared dead at a private hospital in the National capital has captured headlines. The other twin was stillborn. While being taken for the funeral the newborn was discovered to be alive and is now on life support system. In light of this incident IMA has issued an advisory that patients should not be declared dead under conditions of hypothermia. It is important to recognize hypothermia so that patient can be timely revived using all resuscitative measures including rewarming CPR.

IPC Sections 88 and 92 protect doctors against any professional liability for acts done in good faith

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The Indian Penal Code IPC has provisions for defenses for doctors under sections 88 and 92 which protect doctors from allegations of negligence for instance when treatment given in an emergency or a cardiopulmonary resuscitation CPR done is not successful. Section 88 IPC provides for exemption for acts not intended to cause death done by consent in good faith for person s benefit Nothing which is not intended to cause death is an offence by reason of any harm which it may cause or be intended by the doer to cause or be known by the doer to be likely to cause to any person for whose benefit it is done in good faith and who has given a consent whether express or implied to suffer that harm or to take the risk of that harm . The illustration accompanying this section explains it further A a surgeon knowing that a particular operation is likely to cause the death of Z who suffers under a painful complaint but not intending to cause Z s death and intending in good faith Z s benefit performs that operation on Z with Z s consent. A has committed no offence . Section 92 provides for acts done in good faith for benefit of a person without con sent but with provisos Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith even without that person s consent if the circumstances are such that it is impossible for that person to signify consent or if that person is incapable of giving consent and has no guardian or other person in lawful charge of him from whom it is possible to obtain consent in time for the thing to be done with benefit Provided First That this exception shall not extend to the intentional causing of death or the attempting to cause death Secondly That this exception shall not extend to the doing of anything which the person doing it knows to be likely to cause death for any purpose other than the preventing of death or grievous hurt or the curing of any grievous disease or infirmi ty Thirdly That this exception shall not extend to the voluntary causing of hurt or to the attempting to cause hurt for any purpose other than the preventing of death or hurt Fourthly That this exception shall not extend to the abetment of any offence to the committing of which offence it would not extend . Illustration c of this section is important for doctors. A a surgeon sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child s guardian. A performs the operation in spite of the entreaties of the child intending in good faith the child s benefit. A has committed no offence . In Kusum Sharma Ors vs Batra Hospital Med Research on 10 February 2010 the Hon ble Supreme Court also observed as follows The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals . Both Sections 88 and 92 protect the doctor against any professional liability or allegations of medical negligence in situations when acts done for the benefit of the patient with or without his consent do not have the desired outcome. These sections provide that any act done in good faith is not negligence. Doctors should be aware of these sections as a defense against cases of negligence filed against them.

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