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Two doctors of
Fortis hospital in Gurugram were arrested last week following findings of the
district medical board, which said that they had failed to timely administer
proper treatment to the patient who died of cardiac arrest last year. The two
concerned doctors were arrested under Section 304 IPC (causing death by
negligence) and released on bail. The patient, a 51-year-old woman was
admitted to the hospital in an emergency on May 12, 2017 following complaint
of chest pain around 1.35am. ECG was done at 1.45am. The medical board
constituted to examine the case found that the patient was not given
anti-platelet treatment as per protocol. According to the medical board, the
doctors should have ideally given her an anti-platelet medicine for blood
thinning immediately. The report of cardiac enzyme done around 2.23am also
indicated the urgent need for medicines to prevent a heart attack. Patient
suffered a cardiac arrest in the ICU around 4.30 am. She became very critical
and had to be put on life support about which the husband was informed. An
angiography done at 7 am showed that the left anterior descending artery was
100% blocked. The patient was declared dead at 9.48 am.
According
to the report, emergency medical officer “admitted” before the board that he
did not administer anti-platelets. While, the Chief cardiologist said that he
had asked the resident cardiologist, to provide “all necessary treatment” to
the patient around 2.15am. The Board found in its report that “proper
treatment” was not given following examination of hospital records and termed
this as “gross negligence” that proved fatal for the patient (ET Healthworld,
April 14, 2018).
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Without going
into the merits of the case, some factors must be considered in general.
Which doctor was
on duty at the time of the incident? Was it a junior resident doctor or a
senior doctor? Ideally, an intensivist should be on duty or on call in the
casualty.
Women generally
do not present with the classic pattern of pain on the left side of the chest
in the event of a heart attack. They may have atypical symptoms such as pain in
the jaw, neck or back, or they may present with symptoms like shortness of
breath, cough, or nausea. This is one of the reasons for a delayed diagnosis.
The landmark
judgement of the Supreme Court of India on medical negligence in the matter of
Jacob Mathew vs State of Punjab & Anr in 2005 has held that “A mere
deviation from normal professional practice is not necessarily evidence of
negligence. Let it also be noted that a mere accident is not evidence of
negligence. So also an error of judgment on the part of a professional is not
negligence per se. Higher the acuteness in emergency and higher the
complication, more are the chances of error of judgment… No sensible
professional would intentionally commit an act or omission which would result
in loss or injury to the patient as the professional reputation of the person
is at stake. A single failure may cost him dear in his career.” If you
missed a diagnosis, this is not criminal negligence, at the most, it can be a
civil negligence. But, whenever there is any doubt, the specialist should be
called at once, especially in an emergency.
In the same
judgement, Jacob Mathew vs State of Punjab & Anr, the Hon’ble Supreme Court
had also directed that guidelines be formulated by the Govt. after conferring
with the MCI for such an eventuality.
“The
investigating officer and the private complainant cannot always be supposed to
have knowledge of medical science so as to determine whether the act of the
accused medical professional amounts to rash or negligent act within the domain
of criminal law under Section 304-A of IPC. The criminal process once initiated
subjects the medical professional to serious embarrassment and sometimes
harassment. He has to seek bail to escape arrest, which may or may not be
granted to him. At the end he may be exonerated by acquittal or discharge but
the loss which he has suffered in his reputation cannot be compensated by any
standards.”
A Study Group
had prepared and submitted draft “Guidelines for protecting doctors from
frivolous or unjust prosecution against medical negligence” last year to
the MCI for further action. These guidelines have been approved by the MCI. It
is now for the Govt. to notify these guidelines and implement them.
1. “The Prosecuting Agency on
receipt of any complaint of which criminal rashness or negligence is an
ingredient against a registered medical practitioner under the Indian Medical
Council Act, 1956 prior to making arrest refer the complaint to the Chief
Medical Officer of a District who shall place it before the District Medical
Board for its recommendations as regards the merit of the allegations of
criminal rashness or negligence, contained in the complaint.
2. The District Medical Board on
receipt of such reference examine the allegation contained therein in a
time-bound manner, preferably within two-weeks, and thereafter forward its
recommendation to the Prosecuting Agency through the Chief Medical Officer of
the District.
3. The District Medical Board
that has examined the complaint must ensure a Doctor qualified in that branch
of medical science is part of the Board.
4. The Prosecuting Agency, in
case, it is dissatisfied with the recommendation of the District Medical Board
may stating the reasons for such dissatisfaction refer the matter to the
Divisional Medical Board for its recommendation within a period of three-weeks
from the date of receipt of recommendation of the District Medical Board.
5. The Divisional Medical Board,
on receipt of any such reference from the Prosecuting Agency would examine the
matter within a period of three-weeks from the date of receipt of such
reference. The Divisional Medical Board shall provide reason for endorsing or
rejecting the recommendation of the District Medical Board. The decision of the
Divisional Medical Board shall expeditiously be conveyed to the prosecuting
agency, and in any case not later than four-weeks from the date of receipt of
reference made by the prosecuting agency.
6. The Prosecuting Agency, in
case, it is it is dissatisfied with the recommendation of the Divisional
Medical Board may stating the reasons for such dissatisfaction refer the matter
to the State Medical Board for its recommendation within a period of four-weeks
from the date of receipt of recommendation of the Divisional Medical Board.
7. The State Medical Board, on
receipt of any such reference from the Prosecuting Agency would examine the
matter within a period of four-weeks from the date of receipt of such
reference. The State Medical Board shall provide reason for endorsing or
rejecting the recommendation of the Divisional Medical Board. The decision of
the State Medical Board shall be expeditiously conveyed to the prosecuting
agency, and in any case not later than five-weeks from the date of receipt of
reference made by the prosecuting agency.
8. The Prosecuting Agency on the
receipt of Recommendation of the District/Divisional/State Medical Board
further proceed in the matter in accordance with law. However, in case arrest
of a registered medical practitioner in the employment of State/Central
Government is being made, the Controlling Officer of such Medical Practitioner
would be informed by the Prosecuting Agency. Likewise, in case, the registered
medical practitioner is engaged in private practice, the concerned State
Medical Council, or in case there is no State Medical Council in that
State/Union Territory, the Medical Council of India be informed.”
More and more
doctors are facing criminal prosecution. This instance adds to this growing
list. We should fight for the prompt implementation of these guidelines.
Dr KK Aggarwal
Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications
Vice President CMAAO
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Immediate Past National President IMA
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