In Pune a
baby was born with deformity, missed on ultrasound. Prenatal check-ups were
done at Ashwamegh Nursing Home. None of the doctors notified that the baby had
a deformity. They instead said that the baby was fine and their reports, too,
claimed that our child was fit. When the baby was born on November 4, 2016, the
baby was born with deformities in his right leg, left hand and had no passage
for urine. The father went to the then commissioner of police Rashmi Shukla.
This led to four doctors being booked under IPC 337 and 338.
Section 337 in The Indian
Penal Code: Causing hurt by act endangering life or personal safety of others.—Whoever
causes hurt to any person by doing any act so rashly or negligently as to
endanger human life, or the personal safety of others, shall be punished with
imprisonment of either description for a term which may extend to six months,
or with fine which may extend to five hundred rupees, or with both.
Section 338 in The Indian
Penal Code: Causing grievous hurt by act endangering life or personal safety of
others.—Whoever causes grievous hurt to any person by doing any act so rashly
or negligently as to endanger human life, or the personal safety of others,
shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine which may extend to one thousand rupees, or
with both.
It is important here to understand
that the action of the accused must have resulted in either simple or grievous
hurt. The act must be done in a rash and negligent manner and the hurt caused
must be the direct result of the act. And, the rashness or negligence must be
of the extent, which puts the human life or personal safety of others in
danger. Such an act would come under Sections 337 and 338.
Section 320 of IPC has defined
a grievous injury as follows: “The following kinds of hurt only are designated
as “grievous”:—
(First) — Emasculation.
(Secondly) —Permanent
privation of the sight of either eye.
(Thirdly) — Permanent
privation of the hearing of either ear,
(Fourthly) —Privation of any
member or joint.
(Fifthly) — Destruction or
permanent impairing of the powers of any member or joint.
(Sixthly) — Permanent
disfiguration of the head or face.
(Seventhly) —Fracture or
dislocation of a bone or tooth.
(Eighthly) —Any hurt which
endangers life or which causes the sufferer to be during the space of twenty
days in severe bodily pain, or unable to follow his ordinary pursuits.”
“The prevalence of limb
abnormalities is approximately six in 10,000 live births, the incidence is
higher in the upper limbs compared with the lower limbs (3.4 of 10,000 and of
10,000, respectively); more commonly the limb abnormalities are unilateral
instead of bilateral, and more frequently are present in the right side
compared with the left. Limb formation occurs at 4-8 weeks’ gestation, while
primary ossification centers develop in all the long bones of the limbs by the
12th week of gestation…
In the correct diagnostic
approach, the sonologist should know the pregnancy history, if there are
maternal diseases such as diabetes mellitus, hypercoagulability, systemic lupus
erythematosus and other autoimmune diseases, myotonic dystrophy, presence of
high blood pressure, and exposure to teratogens such as medications,
infections, alcohol, and cigarette smoke. Information regarding family members
with congenital limb or other abnormalities, recurrent miscarriage,
stillbirths, mental retardation, inherited conditions, and consanguinity should
be obtained…” (J Prenat Med. 2009 Apr-Jun;3(2):18–22).
Missing
a diagnosis cannot be a grievous hurt. It may be a radiological error, which
constitutes at most a breach of standard care.
And, even if the anomaly had
been diagnosed prenatally, was it an indication of abortion? The answer is
‘no’.
An error of judgement is not
negligence. The Hon'ble Supreme Court judgment in Jacob
Mathew v. State of Punjab and Anr., 2005 (3) CPR 70 (SC) 6 SCC 1 has
stated: “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.”
The three essential components
to prove medical negligence are breach of duty, causation and resulting damage.
In this case, the child was
born with congenital abnormalities, which certainly cannot be said to be caused
by the actions of the doctors. Where was the grievous injury in this case?
It is apparent that doctors
are being charged by authorities under various sections of law without consideration of
the facts of the case and without proper application of mind.
This would only further the
mistrust in the doctor-patient relationship, which is already very precariously
balanced.
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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