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ATTENTION Doctors- Telephonic Consultation Amounts to Culpable Negligence, will attract IPC 304

ATTENTION Doctors- Telephonic Consultation Amounts to Culpable Negligence, will attract IPC 304

“Prescription without diagnosis would amount to culpable negligence. This amounts to gross negligence from the point of the standard of care and recklessness and negligence, which is a tricky road to travel” the court stated

Mumbai: Observing that prescribing medicines to patients without diagnosis amounted to culpable negligence, the Bombay High Court has turned down the anticipatory bail pleas of a doctor couple booked for the death of a woman patient.

Justice Sadhana Jadhav made the observations yesterday while hearing the anticipatory bail pleas filed by a gynaecologist couple – Dr Deepa and Dr Sanjeev Pawaskar.

The doctors have been booked by the Ratnagiri Police under section 304 of Indian Penal Code (culpable homicide not amounting to murder) after the patient died earlier this year.

According to the police, the woman was admitted to the accused couple’s hospital in Ratnagiri in February this year where she underwent a caesarean operation and gave birth to a baby.

The court order said The woman and the child were normal and were discharged two days later.

However, the next day the woman fell sick and her relatives called up Dr Deepa Pawaskar, who asked them to go to a medicine shop and let her speak with the chemist there over the phone, it said.

The doctor spoke with the chemist who then gave some medicines to the relatives of the woman. However, even after taking the medicines, the woman did not feel better and was taken to the same hospital, it said.

Both Dr Deepa and Dr Sanjeev Pawaskar were not present at the hospital at that time but they told the woman’s family that they should admit her and she would be discharged the next day, the order said.

When the woman’s condition deteriorated the next day, the doctors at the hospital shifted her to another hospital, where she died, it said.

The doctors at the second hospital informed the victim’s kin that she had died due to negligence on part of the Pawaskars, following which a case was registered against them, the order said.

The high court noted that there was no effort to refer the woman to another doctor in the absence of Dr Deepa Pawaskar and she (Deepa) continued to prescribe medicines telephonically.

“There was no resident medical officer or any other doctor to look after the patient in the absence of Dr Deepa and Dr Sanjeev Pawaskar even when the couple knew that they would not be available in the hospital,” the court said.

“Prescription without diagnosis would amount to culpable negligence. This amounts to gross negligence from the point of the standard of care and recklessness and negligence, which is a tricky road to travel,” it said.

The accused couple, in their pleas, argued that they could not be charged with culpable homicide not amounting to murder and should, at the most, be booked under section 304 (A) (causing death due to negligence).

Under section 304 (A), a person, if found guilty, faces a maximum punishment of two years in jail. Under section 304, a convicted person can be sentenced to life imprisonment.

The high court, however, said that in the present case, the applicants took the risk of doing something with recklessness and indifference to the consequences.

“An error in diagnosis could be negligence and covered under section 304 (A) of the Indian Penal Code. But this is a case of prescription without diagnosis and, therefore, culpable negligence,” Justice Jadhav said.

“When a doctor fails in his duty, is it not tantamount to criminal negligence? The courts cannot ignore the ethical nature of the medical law by liberally extending the legal protection to the medical professionals…,” the order said.

The couple also claimed that this case fell under the purview of a civil liability and hence, they could be directed to pay compensation to the victim’s family.

To this, Justice Jadhav said mere monetary compensation cannot buy a child her mother and a husband his wife.

The court noted that medical professionals have been put on a pedestal and time has come to weed out careless and negligent persons in the medical profession.

“Segregation of reckless and negligent doctors in the profession will go a great way in restoring the honour and prestige of a large number of doctors and hospitals who are devoted to their profession and scrupulously follow the ethics and principles of the noble profession,” it said.

The court rejected the pleas but stayed its order till August 2 to allow the accused couple to file appeals against the order.

Source: PTI
27 comment(s) on ATTENTION Doctors- Telephonic Consultation Amounts to Culpable Negligence, will attract IPC 304

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  1. user
    Dr Abdul Haleem Shaikh August 4, 2018, 11:53 pm

    With this judgement, the loss may be to one Doctor, but a great loss to the patients. Patients actually are more benefited by telephonic consultations, it saves their time, money and effort for their mild to moderate health issues since maximum Doctors offer free telephonic consultations. Now Doctors fed up with offering free telephonic consultations have a chance and good reason to say no for telephonic consultation and can charge a basic consultation or dispensing fee once the patient enters the clinic / OPD.
    Sometimes bad luck of the patient makes the Doctor unlucky too….

  2. user
    Dr. Hemant Patel August 2, 2018, 3:43 pm

    Treating without a diagnosis is a crime but then we all don\’t make diagnosis on the first interaction with the patients and we treat them on our provisional diagnosis which may turn out to be entirely wrong, say mainly in acute fever cases, From history and physical it may appear just a viral fever but it may turn out to be a killer dengue or cerebral malaria. So is it crime to treat patient without the final diagnosis and start even symptomatic treatment on provisional diagnosis ? and say patient dies before we even get the lab reports then also is it a crime????
    Is it not criminal on the part of patients to go and get admitted in a hospital without presence of a doctor or where only alternative medical people are on duty or knowingly go to alternative medical practitioners\’ clinic for modern medicines, injections, I.V. drips and then go to modern medicines doctors when they don\’t get well or become seriously ill and then blame hospitals or nursing homes if anything unfavourable results.?
    Is it not Indian doctors\’ kindness that they are always 24×7 ready to help their patients even when they call at odd hours of early morning or late nights or noons and patiently give free advice about health and medicine on phone or Whatsapp? Is our Government efficient to provide 24×7 medical help to all even in urban areas leave alone rural areas?. Most of the time health Care is provided by private practitioners and many a times on telephone and now on mobile and WhatsApp.
    Not defending wrong doing, but treating on provisional diagnosis and telephonic consultation in good faith saves patients\’ sufferings time and money at the cost of doctors suffering,time and loss of revenue ?? but still doctor are held guilty.
    So any patient who is asking for such advice should also be punished as he/she is doing it knowingly and is a potential candidate to sue his doctor if something goes against his/her expectations (there is fear of possibly, in born malafied intention)

  3. So.. If a rash bus driver hits a person to death..
    Is it punishable under this act??

  4. First rule should have been a post mortem in a government hospital, because both the hospital seemed to be private. Now that would provide cause of death. Any thing could have happened from the time the patient was taken from first hospital to the next till the declaration of death. And based on findings there could be judgement rather than balantly imposing criminal negligence. And on the first place, why will a patient/party come to die at a hospital if they knew there was no doctor? And again it\’s written the \”Doctors\” at the hospital refered to another hospital? The complain itself seemed vague/ or may be the news writer. How ever this news has been casted in such a way that I cannot satisfy my logical thoughts regarding the judgement, the case scenario, and the probable cause of death for no treatment.

  5. user
    Dr Jiwanjot Kaur Faridkot July 28, 2018, 7:31 pm

    After operative procedure any problem needs diagnosis and that cannot be reached without examination. It wasn\’t wrong to give first aid on phone and advice examination. If patient didn\’t turn up her relatives are responsible, but when patient reaches clinic and you admit her, she is your responsibility
    It would have been better if couple would have taken help of any colluege to examine patient at their clinic in their absence and share findings or referred to some institution explaining cause of their absence from clinic.

  6. user
    Dr. Radhe Shyam Garg August 7, 2018, 11:21 pm

    So be this..then Telemedicine deptt. in medical colleges and television shows giving advice on telephonic talk must immediately be done away with. Need less to say ; all promotional health shows on television including advertisements by celebrities be treated alike