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