Prescription sans diagnosis resulting in patient’s death is culpable negligence: Bombay HC

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.

bombay high court, mediknit

“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

Recent Posts

  • Researchers at the Technion–Israel Institute of Technology have developed a glue gun to put the human body back together when it has been seriously injured. The pins and stitches currently used to treat serious injuries come with drawbacks: They can be painful, they leave scars, they require high skill from the doctor, and they sometimes have to be removed after the tissues heal. Suture on the intestine, lungs or blood vessels often leak and therefore require a sealant. The medical glue that the researchers have developed is a “two in one,” said Prof. Boaz Mizrahi, head of the Biomaterials Laboratory of the Technion. It replaces both stitches and the sealant, and is good for both external and internal injuries, he said. All sorts of medical glues are already being used in dermatology, surgery, and other areas. Israeli startup Nanomedic Technologies Ltd., for example, has developed a medical device that it says can dress burns and other wounds with nano materials that mimic human tissue and peel off once the skin below is regenerated. Still, the glues currently in use to replace sutures and staples are limited by their mechanical properties and toxicity, the researchers said. Because they are very toxic, they can be utilized only on the surface of the skin. In addition, hardening of the glue may make the organ less flexible or the adhesion may not be sufficiently strong. With these limitations in mind, researchers have been on the hunt for a glue that is suitable for different tissues, nontoxic, and flexible after hardening. Such a glue would also need to decompose in the body after the tissue is fused together. Mizrahi worked together with doctoral student Alona Shagan and came up with what they say is a “very strong, nontoxic tissue adhesive that remains flexible even after solidification.” Their study...
  • Pinnacle Ventures has launched a pharmacogenomics programme to enable genetic testing to drive personalised prescribing decisions. The innovation arm of Pinnacle Midlands Health Network, a not-for-profit primary health care management company in New Zealand, is also working on embedding biomarker information into electronic health records and linking it to a clinical-decision support prescribing tool that can help prescribers by providing direct access to international pathways and guidelines. Pharmacogenetics involves prescriptions being tailored to a person’s genetic make-up, as people metabolise drugs in different ways, which can have a significant impact on a drug’s effectiveness. Ventures plans to do about 5,000 pharmacogenetic tests over the next 12 months, says chief executive John Macaskill-Smith. Some will be self-funded because individuals are struggling with their medications and others will be fully funded by Ventures, targeting specific groups within the Midlands population. Macaskill-Smith says it is a simple test that covers 65–70 per cent of medications frequently prescribed in New Zealand. “The New Zealand health system is under strain but using testing like this you could reduce the trial and error of prescribing and prevent adverse reactions to medications,” he said. Ethnicity plays a big part in how a person metabolises drugs, but the clinical trials that prescribing information are based on very rarely involve Māori or Pasifika test subjects. Macaskill-Smith said Ventures is partnering with key kiwi groups, Auckland University and Otago University medical schools and Callaghan Innovation to support research and develop a better understanding of how unique New Zealand populations respond to different medications. People who have a pharmacogenetic test can choose to consent to contributing their non-identifiable demographic information to researchers. Embedding the biomarker information into EHRs ensures a patient’s results are used for both current and future prescribing decisions, he said. Macaskill-Smith says a lot of direct-to-consumer online genetic-testing tools involve people...
  • Surgery students spend so much time on screens that they have lost the ability to perform simple tasks such as stitching and sewing up patients, a professor has warned. Roger Kneebone, a professor of surgical education at Imperial College, London, says the focus on academic knowledge has come at the expense of craftsmanship. “It is important and an increasingly urgent issue,” Kneebone told the BBC. “It is a concern of mine and my scientific colleagues that whereas in the past you could make the assumption that students would leave school able to do certain practical things – cutting things out, making things – that is no longer the case.” The professor, who teaches surgery to medical students, believes that this is down to an increase in technology which takes away the experience of handling materials and developing skills. ”An obvious example is of a surgeon needing some dexterity and skill in sewing or stitching,” he explained. ”A lot of things are reduced to swiping on a two-dimensional flat screen” Kneebone adds that a growing number of students are becoming “less competent and less confident” in using their hands, resulting in young professionals who “have very high exam grades but lack tactile general knowledge”. The professor will be speaking on Tuesday at the V&A Museum of Childhood in east London, at the launch of a report, published by the Edge Foundation, calling for more creativity in the curriculum. The report warns that entries to creative subjects have fallen by 20 per cent since 2010, including a 57 per cent fall in design and technology GCSE. Tristram Hunt, director of the Victoria and Albert Museum, who will be speaking alongside Professor Kneebone added: “Creativity is not just for artists. “Subjects like design and technology, music, art and drama are vitally important for...