MUMBAI: A prescription by a doctor without a diagnosis first would amount to culpable negligence, said the Bombay high court while rejecting a pre-arrest bail plea of two doctors accused of culpable homicide not amounting to murder for death of a woman patient five days after child-birth.
“The time has come for weeding out careless and negligent persons in the medical profession,” said Justice Sadhana Jadhav, while rejecting the plea made by the gynaecologist couple Deepa and Sanjeev Pawaskar, from Ratnagiri. The HC, however, stayed its order, and consequently their arrest, till August 2 to enable them to appeal.
“When a doctor fails in his duty, does it not tantamount to criminal negligence? The courts cannot ignore the ethical nature of the medical law by liberally extending legal protection to the medical professionals. The ethical issues raised by failure to assist a person in need arises from positive duties. According to this court, the breach of these duties could fall within the realm of a criminal law of negligence,” said Justice Jadhav. The couple had said it was a civil case where compensation could be paid to the patient’s family.
Can compensation buy a child her mother and beloved wife for a husband, asked the Judge
The woman had delivered at Pawaskars’ hospital on February 6. She was discharged three days later, with no check-up and in their absence, as the doctors were out of town for a conference. The woman was re-admitted a day later, unable to keep anything down.
Her treatment was done through telephonic instructions by Dr Deepa Pawaskar to her staff and an embolism went undiagnosed and untreated till it was too late, observed the HC. She had to be rushed to another hospital in a pre-dawn emergency and died there within hours. The widower filed an FIR in March against the doctor couple.
When probe began, the Indian Medical Association, Ratnagiri, showing solidarity, even threatened a strike at state or national level. “Unfortunately all private hospitals in Ratnagiri actually remained closed for two days forcing patients to rush to civil hospitals,” observed the HC adding that it showed how “influential” the accused were.
The doctors, through their counsel Shirish Gupte, argued that it was not a case of “criminal” or “gross negligence” but at best may attract section 304A Indian Penal Code (IPC) (death by negligence), a bailable offence which attracts up to two years’ imprisonment and not the graver offence of culpable homicide not amounting to murder under section 304 IPC a non-bailable offence where following an arrest only a court can grant bail, not the police.
Section 304 attracts ten years to life imprisonment depending on whether “intention” or “knowledge” was the factor. “Initially, the report of the civil surgeon clearly indicated that the applicants were responsible for the cause of death,” said the HC but later ‘all doctors mellowed down’ in support of the Pawaskars. “There is no element of deterrence to medical fraternity,” said the HC Judge observing that “medical professionals have been put on pedestal” while destitute patients suffer due to lack of knowledge.
The HC observed that “an element of criminality is introduced not only by a guilty mind but by the practitioner having run a risk of doing something with recklessness to the consequences’’. And added that such negligence was “gross in nature.’’ To attracts a criminal case, the negligence accused of has to be of such a high degree as to be termed “gross’.
“ 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,’’ said Justice Jadhav and dismissing their plea, said, “There is gross negligence from the point of standard of care.’’ The HC clarified that its observations were not to be used in other proceedings.
Article Source: Times of India