A few days back, I had written about my
views regarding the judgement of the Bombay High Court in the matter titled as
“Deepa Sanjeev Pawaskar & Anr.
Versus the State of Maharastra, Criminal Anticipatory Bail Application No. 513
of 2018”, where the Hon’ble High Court of Bombay held that prescription
without diagnosis and hence resulting into death of the patient amounts to
criminal negligence on the part of the doctors and dismissed the anticipatory
bail application filed by the two doctors.
This article has been published in India
Legal magazine at http://www.indialegallive.com/constitutional-law-news/courts-news/prescription-sans-diagnosis-a-case-of-culpable-neglect-52692. The article is reproduced below:
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Prescription sans Diagnosis: A
case of culpable neglect
August 5, 2018
The Bombay High Court refused
to grant anticipatory bail to a doctor couple, saying they were guilty of
criminal negligence in the death of a patient
By Dr KK Aggarwal
The Bombay High Court recently held that prescription without
diagnosis, resulting in death, amounts to criminal negligence. In Deepa
Sanjeev Pawaskar & Anr versus the State of Maharashtra, the Court
dismissed the anticipatory bail plea of two doctors involved in such a case.
In June 2017, the complainant, Dnyanada, visited Dr Sanjiv Pawaskar
who diagnosed her as pregnant. Dnyanada used to visit the hospital regularly
for check-up. On February 5, 2018, she was admitted to Dr Pawaskar’s hospital
with labour pains and the next day delivered a female baby via caesarean. She
was discharged on February 9. No post-operative instructions were given.
However, on February 10, she started vomiting. Dr Deepa, wife of Dr
Sanjiv Pawaskar, asked Dnyanada’s family to phone her from a chemist shop and
she then advised the chemist on which medicines to give them.
By evening, Dnyanada had developed fever and was admitted to hospital.
The staff informed her that doctors were not available there. She asked
whether she should be taken to another hospital. She was told that was not
necessary.
She was treated by two nurses on the instructions of Dr Deepa. At
10.15 pm, one Dr Girish Karmarkar saw the patient and prescribed a tablet,
Trazine H. But by 3.45 am, the tip of Dnyanada’s nose and her lips had turned
black. At 4 am, the staff called Dr Pawaskar, who asked one Dr Ketkar to
visit the hospital. By 4.30 am, Dnyanada was getting fits.
Seeing the poor prognosis, Dr Ketkar shifted the patient in his own
car and admitted her in the ICU of Parkar Hospital, where she was kept on the
ventilator. At 7 am, she expired. The post-mortem revealed the cause of death
to be pulmonary embolism.
The Court has called it
criminal negligence, which is defined as “gross negligence so extreme
that it is punishable as a crime”. However, culpable negligence is intentional conduct where the accused may not
intend to do harm, but which a reasonably prudent man would recognise as
involving a strong probability of injury to others. This would be a case of culpable neglect, defined as blameworthy
neglect.
An error in diagnosis could be negligence and covered under Section
304A of the Indian Penal Code (IPC). The
element of criminality is introduced not only by a guilty mind but by the
practitioner having run the risk of doing something with recklessness and
indifference to the consequences. This negligence or rashness is gross in
nature.
In the present case, the patient was directed to be admitted in the
absence of doctors and medicines were administered on telephonic
instructions. Plus, there was no resident medical officer and no alternative
arrangement was made. Dr Karmarkar was called by the staff when the condition
of the patient started deteriorating.
Section 304A, IPC, says that whoever causes the death of any person by
committing any rash or negligent act not amounting to culpable homicide,
shall be punished with imprisonment for a term which may extend to two years,
or with fine, or with both.
However, Section 304 says:
“Who-ever commits culpable homicide not amounting to murder shall be punished
with [imprisonment for life], or imprisonment of either description for a
term which may extend to 10 years, and shall also be liable to fine, if the
act by which the death is caused is done with the intention of causing death,
or of causing such bodily injury as is likely to cause death, or with
imprisonment of either description for a term which may extend to 10 years,
or with fine, or with both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to cause death, or to cause
such bodily injury as is likely to cause death.”
The Court has applied Section
304 in this case even when there was an established relationship of the
doctors with the patient. Telephonic consults in such situations are normal.
The patient was informed that doctors were not available. Missing pulmonary
embolism by gynaecologists cannot be termed gross negligence. Section 304 involves either intention or
knowledge. There was no knowledge on the part of the doctors that it was
a case of embolism. The patient was seen by a doctor in the evening and early
morning and it was he who shifted her in his own car to another hospital.
In the US, embolism accounts for 1,00,000 deaths annually and in
Europe, 3,00,000 deaths. Among venous thromboembolism-related deaths in
Europe, three-quarters are hospital-acquired and one-third sudden and fatal.
In this case, even Parkar Hospital did not diagnose the embolism and it was
found out only by the post-mortem.
The issue is that in an established patient-doctor relationship,
telephonic and telemedicine consultation do not amount to negligence. Doctors
should challenge this judgment or the national telemedicine programme, where
health workers take instructions from doctors over the telephone, will fail.
In an earlier Supreme Court judgment, too, it was said that telephonic
instructions should be avoided unless in an emergency. But these are
applicable to new patients where the doctor does not know about the patient.
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Following the judgement of the Bombay
High Court, the doctor couple, both gynaecologists, had filed a special leave
petition in the Supreme Court of India to seek to challenge the order passed by
the Bombay High Court, which had denied them anticipatory bail.
The Supreme Court Bench comprising of
Justice Abhay Manohar Sapre and Justice Uday Umesh Lalit granted them relief
from arrest under section 304 (culpable homicide not amounting to murder) of
the IPC for criminal negligence. The Supreme Court order read as follows: “…both the petitioners, namely, Deepa Sanjeev
Pawaskar and Sanjeev Anant Pawaskar shall not be arrested in connection with
Crime No.71 of 2018 registered with Ratnagiri City Police Station.”
The Bench further directed that “both the petitioners shall cooperate in the
ongoing investigation in connection with the offence in question and will make
themselves available as and when required by the Investigating Officer.”
In granting a stay to the arrest order,
the Hon’ble Supreme Court has acted in the manner, which we had anticipated it
would.
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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