Proper Treatment advised in emergency over a Phone call saved the Doctor from the clutches of Sec.304A by Hon. Calcutta HC -Adv. ROHiT ERANDE.©

Sec.304A charges dropped by Hon. Calcutta HC and held on facts : in emergency, prescribing medicines  over a phone call till the Doctor actually reaches the Hospital amounts to complying  with the standard of care of an ordinary prudent medical practitioner, even if unfortunately the patient succumbs to complications subsequently.

Adv. ROHiT ERANDE.©

Case Details : before Hon. Calcutta High Court.

Dr. Pabitra @ Pabitra Kumar Biswas V/s. The State Of West Bengal & Anr.  C.R.R No. 3649 of 2016

 Present: The Hon'ble Justice Rai Chattopadhya.

Factual Matrix in short :The Facts go back to 1997 and the case has been decided in the year 2023 !

1. The petitioner is a doctor by profession. Against him the de facto complainant alleges the culpable act of being negligent in treatment of his minor son, resulting into death of the said minor. The de facto complainant has lodged FIR in Balurghat Police Station, being registered as Balurghat Police Station Case N0. 38/1997 dated 25.01.1997 under section 304 of the IPC. Chargesheet was submitted on 31.5.2003, under section 304A of the IPC.

2. The     FIR     has    enumerated     inter      alia   that      on

20.04.1997    the     thirteen      months    old   son   of   the    de    facto complainant was indisposed being suffered with diarrhoea and vomiting. Initially the child was treated by a doctor in the locality, who however, prescribed for providing the child with the saline treatment. The de facto complainant has stated that immediately thereafter at about 10:25 p.m. in the night the child was admitted at Balurghat Hospital. The de facto complainant has stated further that since after admission the physical condition of the child was continuously deteriorating, call was recorded in the 'call book' for the petitioner. The de facto complainant has also stated that they, as the family members of the patient, insisted severely for calling the petitioner to attend, and treat the ailing child, but to no avail and ultimately the petitioner attended the patient at the early morning but by that time the child was only in a grasping condition. Ultimately the child died at 6:55 a.m. in the morning on 21.04.1997.

3. On these facts and circumstances the de facto complainant has alleged that in spite of calling the petitioner for several times in emergency, as he did not attend the patient and did not offer him the appropriate treatment and medication, thus acted negligently and intentionally avoiding his responsibilities. Allegations have been made against him of culpable negligence resulting into death of the child. On these allegations the FIR was lodged, a case was registered under section 304 of the IPC and the investigation proceeded. The Trial Court rejected  petitioner's prayer under section 258 for discharge and hence the Petition.

Arguments of the Petitioner /Accused :

1. Mr. Mukherjee, Ld. Senior Advocate, appearing for the petitioner  raised the initial point of argument regarding no negligence, much less of any culpable negligence to be attributed to his client, while discharging duty in a government hospital.

2. He pointed out to the relevant 'call book' and submits further that the petitioner has duly prescribed medicine and measures as per protocol, at 10:25 p.m. in the night, upon receiving the notification regarding the child being in serious condition. Later on, it has been pointed out too, that receiving emergency call in the early morning at 5:00 a.m. requesting him to attend the patient immediately, the petitioner rushed to attend the patient at 5:05 a.m. According to Mr. Mukherjee it is only that the child succumbed in spite of having been treated with appropriate medical care and no negligence, as alleged, is attributable to the petitioner for the death of the child.

3. Mr. Mukherjee has further relied on the internal inquiry committee report to submit that the internal inquiry committee has also taken note of the fact as above and come to the finding that there is no reason to attribute cause of death of the child to any negligent act of the petitioner as alleged and that the internal inquiry committee has exonerated the petitioner from any charge as afore stated.

4. Later Mr. Mukherjee has relied on the following two celebrated judgments in advancement of his arguments that to assess any culpable negligence on part of a doctor, the Hon'ble Supreme Court has set a different standard all together, to be applicable in recording a finding of negligence. Mr. Mukherjee has taken this Court through the concerned judicial pronouncements thoroughly and has also emphasized that the law laid down in the said verdicts are the prevalent law as on the date regarding the standard of proof of an act of negligence by the professional, like a doctor. The said two judgments are

(i) Jacob Mathew vs. State of Punjab & Anr. reported in (2005) 2 C Cr. LR (SC) 472, and

(ii) Martin F. D'Souza vs. Mohd. Ishfaq reported in (2009) 1 SCC (Cri) 958.

The Defence of the State :  

1. The contention and prayer of the petitioner has however been strongly opposed on behalf of the State.

2. It is submitted that the petitioner being 'in charge' on the fateful night, has not acted with appropriate promptitude or desired sensitivity, to attend the child in an emergency, in spite of having knowledge of deteriorating physical condition of the child. He elaborates that the petitioner should be considered to have adequate knowledge about the probable result and outcome in not attending the child in a serious condition.

3. Thus according to Mr. Sur petitioner's alleged acts shall definitely come within the four corners of the provisions under Section 304A of the IPC and obviously the FIR and other materials on record are prima facie sufficient and strong enough to make out cognizable offence and a prosecutable case against the petitioner. 4. He has stated that the orders as above delivered by the Magistrate as well as the Sessions Judge, suffer with no impropriety, on the basis of the records so available.

Held :

1. Hon’ble High Court applied the ratio of above two judgments of Hon. Supreme Court which are like epitome on the point of deciding whether or not any /doctor acted Negligently.

2. The Court referred to Jacob Mathew's case of 2005 (supra) of the Supreme Court wherein Supreme Court was pleased to hold that

"25. 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. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure."

3. The Apex Court took into consideration various other previous judicial pronouncements and confirmed that tests as were laid down in 'Bolam's case' should be held good and govern the field. The following portions of the said judgment may be quoted:

"19. An Oft quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair J. in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586 in the following words:

"Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill... It is well- established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well- condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79 summarised the Bolam test in the following words:-

"From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet."

21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):-

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."

4. In the other case of Martin F. D'Souza (supra) the Court has propounded the law, so settled by it earlier.

5. On this background, the High Court observed that the petitioner has been alleged of negligence by not attending the minor in serious condition, resultantly causing his death and the Magistrate held that prima facie it comes out that the doctor did not have intention to cause death. But whether he had knowledge is a different thing and It was further found that in this case, the very fact that, the patient was admitted in the emergency ward, suggests some gravity in his sickness. The Magistrate further held that moreover, the doctor was "call booked" when the condition of the patient deteriorated and that the victim was a minor and the doctor had full knowledge that he was "call booked" for attending the patient when his condition deteriorated and therefore the Magistrate rejected petitioner's prayer under section 258 of the CrPC. This order was confirmed by the Session Judge too.

 

6. The Hon. Judge then further relied on other celebrated judgments of Apex Court on the point of Medical Negligence and observed that these important principles have not been considered by the two initial Courts and the result is an error occurring in the decision making process, rendering both the orders as erroneous and devoid of being backed by the settled laws.

7. The Court then observed that Prima facie material emerging from the FIR is that a child was admitted in the hospital at 10:25 PM, in a serious condition having been suffered from diarrhoea. It is not the case of the prosecution that the child was not put to the medication as per the settled and accepted medical protocol. Fact remains that in spite of administration of due medication, the condition of the child deteriorated.

8. At this stage, the petitioner was notified by way of generally accepted procedure, that is by sending note in a call book. The time has been stated to be at 10:25 p.m.

9. It is the case of the prosecution that in response to such information, the petitioner suggested further proper medication but did not personally attend the child. The prosecution has not made up any case that such prescription of the petitioner was not adequate or appropriate or that the child was not provided with the medical support in terms of such prescription, in absence of the petitioner. Prosecution's case is based on the sole fact that after being notified, the petitioner did not attend the ailing child. Of course, the petitioner could have attended the ailing child at that point of time. However having not attended the child at that point of time and prescribing medicines and treatment for him, due administration of which has not been denied in this case, the petitioner has complied with the standard of care of an ordinary prudent medical practitioner.

9. The Court held that it is needless to reiterate that the standard of care necessary to be undertaken by a doctor is propounded to be that of an ordinary prudent practitioner following the due process and protocol prevalent in the field. Highest degree of care may not be imparted, to indicate that no negligence was exercised in caring and treating the patient. This being the settled law, governing the field, as elaborately discussed above, in this case so far as the petitioner is concerned it can be held that the petitioner has maintained the ordinary degree of care, while treating the patient. It is worth noting that the prosecution has not brought forward a case that the treatment extended to the child was not adequate and petitioner's presence to attend the patient at that very moment, would have ensured any better, adequate or appropriate treatment for the child. It is not the case of the prosecution, that the course adopted was one of such kind that no professional man of ordinary skill would have taken, had he been acting with ordinary care. The "Bolam's test" is satisfied in this case, that the procedure adopted has to be in terms of the practice accepted as proper.

10. The Court then observed that the plight of parents who have lost their child can always be understood, though the liability cannot be thrashed blindly on the doctor, who prima facie is seen to have exercised reasonable care, undertaken appropriate procedure and extended adequate treatment to the patient.

11.  Therefore, the Court quashed the charges under section 304A of the IPC, i.e, causing death of the victim, due to rashness and negligent performance of Doctor’s duties,.

This judgment is of so importance that almost every where whenever in emergency  call is made to the concerned Doctor, he/she after taking the brief history immediately prescribes the medicines till he/she actually reaches the Hospital. Otherwise it will be practically impossible for the Doctors to treat the patients in emergency when the Doctor is not available or a Sr. Doctor is called for. As rightly pointed out by the Court that no amount of money can bring the child back, but that does not mean that the Doctor should be made a scape goat !!

Thanks and regards

 

(Adv. ROHiT ERANDE)©