Telephonic Consultation will attract criminal action against Doctors ? - What Hon. Bombay High Court has held..
In these days of social media, a news gets viral more than the speed of mind ! The recent judgement of Hon. Bombay High Court on Telephonic Consultation is the fine example of it.
The Moot question before hon'ble Court was :
Prescription without diagnosis and hence resulting into death of the patient amounts to criminal negligence on the part of the doctors.
But the hon'ble court did not give reliefs to Doctor only because they gave consultation on phone but, also :
a) At the outset they discharged the patient with C-Section without examining her, that too the discharge summary was prepared in advance.
b) Then they advised to admit the patient when they were out of station and there was no Locum.
c) the medicines were advised without enquiring about the symptoms.
d) In emergent situation, they did not send the patient to a higher center,
e) They used pressurising tactics like arranging the 2 days strike in Ratnagiri, as a result of which other patients suffered a lot.
All these put together, the Court came to conclusion that the Doctors were criminally negligent,
Lets try to see the aforesaid judgment in short.
Case Details :
Dr. Deepa and Dr. Sanjeev Pawaskar V/s. State of Maharashtra
Anticipatory Bail application No. 513/2018, decided on 25/06/2018, The judgment is available on the official website of bombay high Court.
CORAM : Hon. Smt. Sadhana Jadhav J.
Facts in short : Facts are very material.
1. The Issue before Hon. High Court was whether prescription without diagnosis and hence resulting into death of a patient amounts to criminal medical negligence on part of Doctors ?
2. This case is from Ratnagiri District, Maharashtra. Mr. Pranav and MRs. Dynanada Polekar were expecting a child and her due date was given as 18/02/2018. However she was having labor pains on 05/02/2018 and she went for checking with the petitioners. Initially it was decided to have Normal Delivery, but after the last Sonography Doctors decided to have LSCS and accordingly on 06/02/2018 she delivered the baby girl. Thereafter on 08/02/2018 the baby was discharged and on 09/02/2018 the mother-patient was discharged.
3. On next day, Mrs. Dyanada started vomiting. When one of her relative informed had called upon Dr. Deepa Pawaskar. She had asked them to call her from medical shop. The doctor had given instructions to the medical shop owner and accordingly, he had given them tablets which she had taken. On the same day, in the evening Dnyanada had fever and she continued vomiting and therefore, she was taken to the hospital of Dr. Deepa Pawaskar at 8.30 p.m.
4. As Dr. Pawaskar had gone to Pune for some Medical Conference, the staff nurse called her and she telephonically advised to admit the patient. The nurses were giving medicines as per telephonic instructions. The Husband asked whether she should have been taken to another Hospital, but he was assured by the nurses that his wife would be recovered soon. But the condition of the patient was deteriorating and at about 10.15 pm, one Dr. Girish Karmarkar turned to see the patient. He patiently heard about the complaints of the patient & prescribed the tablet-Trazine H.
5. But the condition of the patient deteriorated further and at about 3.30 am she became serious and her lips and tip of the nose turned black. As the relatives went furious, the staff called Dr. Pawaskar @ about 4.am and as per request of Dr. Pawaskar, one Dr. Ketkar reached the hospital to see the patient. Dr. Ketkar learnt the situation as patient had started having fits and hence he decided to shift her to another Hospital. The ordeal was not over yet, as the Ambulance was not there. So Dr. Ketkar took the patient in his own car to the Parkar Hospital. However at about 7 am, she took her last breath in the ICU.
6. As a result the FIR was lodged. The Post mortem showed the cause of death as "Pulmonary embolism". The Police sought reports of Civil Surgeon. The Civil Surgeon after going through the documents gave 2 reports against the Doctors. The gist of the report says, the Doctor should not have discharge the patient without examining her, they should not have admitted her in thier absence and in absence of any other Medical Officer. the Doctor gave telephonic prescription. The treatment was given by the untrained nurses, moreover doctors should have referred to patient to higher center.
Defense of Doctors :
1. The Doctors took manyfold defenses. Firstly they denied that they committed any negligent act, as the patient died of Pulmonary embolism", a situation beyond thier control.
2. They cannot be charged U/Sec.304, but at the most under Sec.304A. Moreover it was a case of "error of judgment" and hence a civil liability can be fastened over them.
3. The Doctors tried to took a shelter under the celebrated judgments of Apex Court and especially in the case of Jacob Mathew v/s. State of Punjab and anr. reported in (2005) 6 SCC 1, wherein it is held that -
“Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society.”
“A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make
out a case of negligence before a medical practitioner is charged with or proceeded against criminally.”
“A doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence.”
The prosecution said :
1. The discharge summary was prepared in advance as the Doctors' trip was prescheduled. It was pointed out that the Doctors tried to tamper with the evidence. The medical Board also opined against the Applicant Doctors.
2.Had there been proper diagnosis at the time of readmission, Dynanada would have been
saved.
3. There was no ambulance much less any stretcher in the Hospital. She had to be taken on a plastic sheet.
4. The Doctors were so influential that they managed to call a strike by IMA for 2 days.
Held ;
Her ladyship while rejecting the Anticipatory Bail application observed on many aspects.
1. It was observed that it is more than clear that the patient had
shown specific signs of embolism as she had fever, her calf was aching terribly. There was swelling on the abdominal, which was apparent. She had severe head-ache and fever. All these symptoms were noted by Civil Surgeon, but were missed by the Doctors.
2. The Hon. High Court was very upset on the Strike called by the Doctors in support of Applicant Doctors, as a result all private hospitals in Ratnagiri actually remained closed for 2 days and the patients were forced to rush to Civil Hospital. however later on the support of Doctors to present Applicants mellowed down.
3. The further observations are very material,
"An error in diagnosis could be negligence and covered under section 304A of the Indian Penal Code. But this is a case of prescription without diagnosis and therefore, culpable negligence. The element of criminality is introduced not only by a guilty mind but by the practitioner having run a risk of doing something with recklessness and indifference to the consequences. It should be added that this negligence or rashness is gross in nature."
4. The Court said Doctor failing in his/her duty tantamounts to criminal negligence and the breach of these duties like failing to give support to the patient in need, could fall within the realm of a criminal law of negligence.
5. While denying the shelter of Jacob Mathew case, her ladyship relied on other observation of said judgment which said that
“To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.”
6. The Court also stressed on the points from "a' to "e" above. The question whether all this is a civil liability was turned down by her Ladyship by observing that Whether the compensation can buy a child her mother and beloved wife to a husband ?
7. Lastly while deciding the aforesaid moot issue the Court observed,
"The time has come for weeding out careless and negligent persons in the medical profession. Segregation of reckless and negligent doctor in the profession will go a great way in restoring the honour and prestige of large number of doctors and hospital who are devoted to the profession and scrupulously follow the ethics and principles of the noble profession. Recklessness and negligence are tricky road to travel.There is gross negligence from the point of standard of care. "
However the Court stayed its order till 2nd August.
What we learn from this judgment ?
1. These days, the relationship between Doctors-patients is going through vicious circle. The news in social media about present case has added oil in it.. Its really sad that all sorts of wrong interpretations about the judgment was referred to.
2. But there are subtle things from this judgment which one should try to understand The Applicants were not denied relief merely because they gave telephonic consultation, but the above points "a' to "e" also turned to be very material. The Doctors should try to avoid these mistakes.
3. This case is a lesson for other doctors and especially for Small Hospital owners. You may get 2-3 patients less, but do not get admitted patient if you are not personally available or at least have the Locum. Do not hesitate to refer the patient to a higher center. No prudent Doctor would ever want his/her patient to suffer and remain unrecovered. So Doctor will take every effort to save the patiebt and in the present case also It's not that doctors were not trying to save their patient, they were giving instructions telephonically, must be with hope that patient will be recovered. Thus had the patient been recovered, perhaps this issue would not have been raised.
4. Regarding Telephonic discussion, telling a patient medicines after seeing his/her reports on whatsapp is in vogue in these days as it is convenient to all. Had the patient been alive, this question perhaps would not have come up before the Court. the Jr. Residents calling thier Senior and telling the situation of a patient and then Senior responding is ok. But advising medicines without actually seeing a patient is dangerous. We don't know which medicines were given and how the medicine shop owner gave the medicines without prescription ?
5. The loss suffered by the Polekar family is irreversible and cannot be compensated by any means. The Doctors in this case might have been very good and must be having a Goodwill, but tis now at steck and will depend upon when the case is finally decided on merits. Till then they may called as accused, but not as Convicts.. Social media did it for them. Ironically it was the doctor only who in order to save the patient, to took her in his own car to the Hospital when there was no Ambulance.
6. last but not the least, such situation may never come on any one in future. Pray to the God.
P.S... The Doctor couple booked for prescribing medicines telephonically got bail in Hon. Supreme Court.
SLP (Criminal) No.6243/2018.
Order dated : 01/08/2018 .
Thanks and Regards
Adv. Rohit Erande
Pune.©
4. As Dr. Pawaskar had gone to Pune for some Medical Conference, the staff nurse called her and she telephonically advised to admit the patient. The nurses were giving medicines as per telephonic instructions. The Husband asked whether she should have been taken to another Hospital, but he was assured by the nurses that his wife would be recovered soon. But the condition of the patient was deteriorating and at about 10.15 pm, one Dr. Girish Karmarkar turned to see the patient. He patiently heard about the complaints of the patient & prescribed the tablet-Trazine H.
5. But the condition of the patient deteriorated further and at about 3.30 am she became serious and her lips and tip of the nose turned black. As the relatives went furious, the staff called Dr. Pawaskar @ about 4.am and as per request of Dr. Pawaskar, one Dr. Ketkar reached the hospital to see the patient. Dr. Ketkar learnt the situation as patient had started having fits and hence he decided to shift her to another Hospital. The ordeal was not over yet, as the Ambulance was not there. So Dr. Ketkar took the patient in his own car to the Parkar Hospital. However at about 7 am, she took her last breath in the ICU.
6. As a result the FIR was lodged. The Post mortem showed the cause of death as "Pulmonary embolism". The Police sought reports of Civil Surgeon. The Civil Surgeon after going through the documents gave 2 reports against the Doctors. The gist of the report says, the Doctor should not have discharge the patient without examining her, they should not have admitted her in thier absence and in absence of any other Medical Officer. the Doctor gave telephonic prescription. The treatment was given by the untrained nurses, moreover doctors should have referred to patient to higher center.
Defense of Doctors :
1. The Doctors took manyfold defenses. Firstly they denied that they committed any negligent act, as the patient died of Pulmonary embolism", a situation beyond thier control.
2. They cannot be charged U/Sec.304, but at the most under Sec.304A. Moreover it was a case of "error of judgment" and hence a civil liability can be fastened over them.
3. The Doctors tried to took a shelter under the celebrated judgments of Apex Court and especially in the case of Jacob Mathew v/s. State of Punjab and anr. reported in (2005) 6 SCC 1, wherein it is held that -
“Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society.”
“A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make
out a case of negligence before a medical practitioner is charged with or proceeded against criminally.”
“A doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence.”
The prosecution said :
1. The discharge summary was prepared in advance as the Doctors' trip was prescheduled. It was pointed out that the Doctors tried to tamper with the evidence. The medical Board also opined against the Applicant Doctors.
2.Had there been proper diagnosis at the time of readmission, Dynanada would have been
saved.
3. There was no ambulance much less any stretcher in the Hospital. She had to be taken on a plastic sheet.
4. The Doctors were so influential that they managed to call a strike by IMA for 2 days.
Held ;
Her ladyship while rejecting the Anticipatory Bail application observed on many aspects.
1. It was observed that it is more than clear that the patient had
shown specific signs of embolism as she had fever, her calf was aching terribly. There was swelling on the abdominal, which was apparent. She had severe head-ache and fever. All these symptoms were noted by Civil Surgeon, but were missed by the Doctors.
2. The Hon. High Court was very upset on the Strike called by the Doctors in support of Applicant Doctors, as a result all private hospitals in Ratnagiri actually remained closed for 2 days and the patients were forced to rush to Civil Hospital. however later on the support of Doctors to present Applicants mellowed down.
3. The further observations are very material,
"An error in diagnosis could be negligence and covered under section 304A of the Indian Penal Code. But this is a case of prescription without diagnosis and therefore, culpable negligence. The element of criminality is introduced not only by a guilty mind but by the practitioner having run a risk of doing something with recklessness and indifference to the consequences. It should be added that this negligence or rashness is gross in nature."
4. The Court said Doctor failing in his/her duty tantamounts to criminal negligence and the breach of these duties like failing to give support to the patient in need, could fall within the realm of a criminal law of negligence.
5. While denying the shelter of Jacob Mathew case, her ladyship relied on other observation of said judgment which said that
“To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.”
6. The Court also stressed on the points from "a' to "e" above. The question whether all this is a civil liability was turned down by her Ladyship by observing that Whether the compensation can buy a child her mother and beloved wife to a husband ?
7. Lastly while deciding the aforesaid moot issue the Court observed,
"The time has come for weeding out careless and negligent persons in the medical profession. Segregation of reckless and negligent doctor in the profession will go a great way in restoring the honour and prestige of large number of doctors and hospital who are devoted to the profession and scrupulously follow the ethics and principles of the noble profession. Recklessness and negligence are tricky road to travel.There is gross negligence from the point of standard of care. "
However the Court stayed its order till 2nd August.
What we learn from this judgment ?
1. These days, the relationship between Doctors-patients is going through vicious circle. The news in social media about present case has added oil in it.. Its really sad that all sorts of wrong interpretations about the judgment was referred to.
2. But there are subtle things from this judgment which one should try to understand The Applicants were not denied relief merely because they gave telephonic consultation, but the above points "a' to "e" also turned to be very material. The Doctors should try to avoid these mistakes.
3. This case is a lesson for other doctors and especially for Small Hospital owners. You may get 2-3 patients less, but do not get admitted patient if you are not personally available or at least have the Locum. Do not hesitate to refer the patient to a higher center. No prudent Doctor would ever want his/her patient to suffer and remain unrecovered. So Doctor will take every effort to save the patiebt and in the present case also It's not that doctors were not trying to save their patient, they were giving instructions telephonically, must be with hope that patient will be recovered. Thus had the patient been recovered, perhaps this issue would not have been raised.
4. Regarding Telephonic discussion, telling a patient medicines after seeing his/her reports on whatsapp is in vogue in these days as it is convenient to all. Had the patient been alive, this question perhaps would not have come up before the Court. the Jr. Residents calling thier Senior and telling the situation of a patient and then Senior responding is ok. But advising medicines without actually seeing a patient is dangerous. We don't know which medicines were given and how the medicine shop owner gave the medicines without prescription ?
5. The loss suffered by the Polekar family is irreversible and cannot be compensated by any means. The Doctors in this case might have been very good and must be having a Goodwill, but tis now at steck and will depend upon when the case is finally decided on merits. Till then they may called as accused, but not as Convicts.. Social media did it for them. Ironically it was the doctor only who in order to save the patient, to took her in his own car to the Hospital when there was no Ambulance.
6. last but not the least, such situation may never come on any one in future. Pray to the God.
P.S... The Doctor couple booked for prescribing medicines telephonically got bail in Hon. Supreme Court.
SLP (Criminal) No.6243/2018.
Order dated : 01/08/2018 .
Thanks and Regards
Adv. Rohit Erande
Pune.©
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