Doctors not to be blamed for unavailability of essential drugs: Bombay HC
Mumbai: Ruling that doctors, who are giving their best during the pandemic, should not be made responsible for their inability to administer drugs due to their inadequate supply, the Bombay High Court has recently opined that it is not justified that the doctors need to face investigation in such cases for complaints of medical negligence.
Further, in an attempt to safeguard the doctors from being harassed by the patients and their families, the Bombay High Court on Friday suggested creating a special cell of well-trained police officers to deal with registering FIRs against doctors over complaints of medical negligence.
"The Doctors are attending work 24/7 wearing the PPE kits. Thereafter, are they to face Investigating Officers over one or two cases where the patient's party is aggrieved and complaints of medical negligence? There has to be a balance," the court orally observed on Thursday, while hearing a bunch of public interest litigations (PILs) on the management of resources related to COVID-19, and another on rising instances of attacks on doctors by patients' relatives.
The High Court division bench comprising of Chief Justice Dipankar Datta and Justice G S Kulkarni also clarified that the State must make police officers aware of the existing law and Supreme Court rulings about registering offences against medical practitioners, following complaints by friends or relatives of patients.
These observations by the Court came after the court was informed by advocate Rajesh Inamdar, counsel for one of the petitioners, that several doctors working in COVID-19 wards across the state had been increasingly receiving notices from the police following complaints by relatives of patients who were either unhappy with the treatment received, or in cases, where coronavirus patients had succumbed to the disease.
"Relatives of patients who die, go to the police with treatment chart and the Maharashtra government protocol on drug administration, because of which doctors, overworked, working in COVID wards, are receiving police notices. There should not be knee-jerk reactions in initiating criminal action against doctors," Inamdar said. "If there is any difference between the two, if a certain drug is not prescribed, or if the exact sequence of drugs is not followed, they lodge a complaint," he said.
Inamdar was referring to the protocol issued last year by the Maharashtra government that keeps getting revised from time to time and deals with the drugs and line of treatment that must be provided to COVID-19 patients.
A doctor representing the Indian Medical Association (IMA), who was also present for the hearing via video-conferencing, then told the court that doctors were being attacked unnecessarily. He said that while doctors stuck to the protocol as much as possible, the administration of a particular drug or a certain dose depended on the condition of the patient, his or her comorbidities, response to the line of treatment, etc.
Urging the Court to pass an order clarifying that doctors should not be held responsible for the inefficient of the Government in supplying essential medicines and resources, the doctor further added that the patients are "taking doctors on task."
"Who will protect the doctors? There will be cases in the Court, and we will have to spend our energy and money to defend those cases," the doctor was quoted saying by Live Law.
The doctor further said that sometimes medical practitioners had to prescribe alternate drugs due to the unavailability of those mentioned in the protocol. These submissions of the doctor came with respect to the use of investigational drugs Tocilizumab and Dexamethasone in the treatment of Covid-19. The Court was informed by the doctor that some patients who don't respond to Dexamethasone usually react to Tocilizumab. Therefore, when one drug doesn't work, the alternative gets prescribed following the Maharashtra Government's protocol.
"It's is not correct to say that doctors are using it indiscriminately and making money out of it, which is a wrong assumption," the doctor added further mentioning that patients target the doctors whether or not they follow the protocol. "100s of cases have been filed for which there is no legal protection," he pointed out.
When the Court asked if there was an alternative available for Tocilizumab, the doctor representing the IMA stated that no such alternative is available. He further submitted that Dexamethasone gets used as the first line of treatment. If it doesn't work then doctors opt for Tocilizumab. In case of unavailability of the latter, the doctors administer other drugs as a trial and error method so that the patient could be saved.
Replying to the Court's query regarding the success rate of Dexamethasone, the doctor replied that the drug works in 70-80 % of cases, adding that ultimately it depends upon how the body of the patient reacts. When the bench asked if the doctors could prescribe Tocilizumab first, the doctor reminded the Court of its cost and unavailability.
The counsel for the petitioner further informed the court that nowadays, the relatives of the patients who have died due to Covid, approach the Police with the treatment chart on one hand and the applicable protocol in the other. After comparing the protocol if they find that the protocol was not followed they accuse the doctor of medical negligence, However, such relatives of patients fail to understand that sometimes doctors need to make a clinical judgment depending upon the situation.
He further pointed out that the Court might consider issuing guidelines to police stations regarding the line of investigations for these cases. Although he clarified that there might be some cases of medical negligence present, he further reminded the court that considering the situation where doctors are working so hard to save people every day amidst the pandemic and are already overburdened with the pressure, the first reaction shouldn't be to start criminal proceedings against the doctors.
After listening to these contentions, the Court observed that the decision regarding the patient's line of treatment should be left to doctors as considering the clinical condition of the patient, only a doctor could judge best what drug would be required at a particular time, Live Law has added.
The High Court had said on Thursday that doctors, already overworked due to the pandemic, must not have to face such harassment, or spend any time giving explanations to the police. It had directed the Maharashtra Advocate General (AG) for assistance on the existing laws on the issue.
"Please let us know as to how we can pass orders and protect doctors from being prosecuted at this stage. Of course, if there are genuine cases, definitely we will not stay in the way," the bench had noted, adding that it won't stand in the way of genuine complaints. However, the doctors should not be charged merely because a certain drug is unavailable, added the Court.
During the hearing on Friday, the AG referring to several previous judgments of the Apex Court, submitted that police must not unthinkingly register an offence unless there existed an apparent or reasonable case of negligence. The court then said the police must be trained to ascertain which cases required an immediate registration of offence, reports PTI.
"You (state) must make your police officers aware of the law and the SC rulings on the issue. There can be a cell consisting of police officers who are well adapted to handle these situations. It will not go to any ABC police officer. All complaints on medical negligence will go to well-trained officers," the bench said.
"The position today is that the police must be a little cautious. It should not act immediately unless he or she takes a medical opinion that there is a genuine case of medical negligence. Otherwise, a doctor will not be mentally free while working," the court noted.
The court further directed the state to take a decision and place it before the High Court by June 16, following which it will pass an order.