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In a recent
judgment, the Bombay High Court turned down the anticipatory bail pleas of a
doctor couple booked for the death of a woman patient under section 304 of
Indian Penal Code (culpable homicide not amounting to murder) after the
patient died earlier this year. The high court noted that there was no effort
to refer the woman to another doctor in the absence of Deepa Pawaskar and she
(Deepa) continued to prescribe medicines telephonically. “There was no
resident medical officer or any other doctor to look after the patient in the
absence of Dr Deepa and Sanjeev Pawaskar even when the couple knew that they
would not be available in the hospital.” The accused couple, in their pleas,
argued that they could not be charged with culpable homicide not amounting to
murder and should, at the most, be booked under section 304 (A) (causing
death due to negligence). However, the high court said that in the present
case, the applicants took the risk of doing something with recklessness and
indifference to the consequences.
"An
error in diagnosis could be negligence and covered under section 304 (A) of
the Indian Penal Code. But this is a case of prescription without diagnosis
and, therefore, culpable negligence." "When a doctor fails in his
duty, is it not tantamount to criminal negligence? The courts cannot ignore
the ethical nature of the medical law by liberally extending the legal
protection to the medical professionals..." Thus, the Bench concluded
that “Prescription without diagnosis would amount to culpable negligence.
This amounts to gross negligence from the point of standard of care and
recklessness and negligence, which is a tricky road to travel”.
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In an earlier judgement in the
matter of Martin F. D'Souza vs Mohd Ishfaq (3541 of 2002) dated 17.02.2009 in
the Supreme Court of India, the Bench comprising of Justice Markandey Katju and
GS Singhvi laid down precautions which doctor/hospitals/nursing homes should
take to protect themselves from complaints of medical negligence. One amongst
these relates to telephonic consultation, “No prescription should ordinarily
be given without actual examination. The tendency to give prescription over the
telephone, except in an acute emergency, should be avoided (54(b).”
The moral of
the story is that telephonic
consultations should be avoided as a routine.
However,
if needed, consultations on phone can be given, provided there is an
established relationship between the doctor and the patient. And, most
importantly, the doctor is fully cognizant of the attendant risks, both medical
and medicolegal.
If the
concerned patient is under the treatment of a doctor, and the doctor is aware
of the nuances of the case, then telephonic consultations can be given. For
example, the patient may call the doctor to convey the results of lab tests or
histopathology reports that he/she may been advised by the treating doctor.
Opinion on an x-ray image may also be sought via a telephonic consultation.
A telephonic consultation for
a patient means improved access and convenience. While doctors too would prefer
the convenience, the issue of note for them is to recognize when this form of
consultation is not sufficient to properly evaluate the patient and address the
complaint, and to arrange a face-to-face consultation instead or provide
timely and appropriate advice if the condition of the patient is deteriorating.
As a safeguard, the record of
the consultation can be maintained with consent of the patient. Likewise,
doctors should also be careful about any recordings being made by the patients
without their consent. The doctors should be attuned to the tone and content of
the speech in the conversation.
The confidentiality and
privacy of the consultation and patient health information and other data
should be maintained. No data should be shared without the prior consent of the
patient.
Failure to abide by these
rules could lead to a complaint of medical negligence filed against the doctor.
Dr KK Aggarwal
Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Immediate Past National President IMA
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