Prescribing Medicines, Tests over Phone not Gross Negligence: HC comes to rescue of gastroenterologist
Kerala High Court
Ernakulam: Observing that doctors cannot be blamed for every death during treatment, the Kerala High Court recently quashed criminal proceedings against a gastroenterologist, who was accused of medical negligence resulting in the death of a patient.
The allegation against the doctor was that he was negligent in not attending to the patient for urgent direct evaluation, even after the nurse informed him via telephone call about the sudden illness of the patient. It was also alleged that the doctor omitted to do what a medical professional of ordinary sense and prudence would do and thereby, negligently caused the death by not referring the case to a specialist.
The HC bench comprising Justice G Girish noted that "The law is thus trite that even in a case where a patient’s death results merely from error of judgment or an accident, no criminal liability could be attached to it, and mere inadvertence or some degree of want of adequate care and caution might create civil liability, but would not suffice to hold the medical professional concerned criminally liable."
"Only in such cases where there is gross lack of competence or inaction and wanton indifference to the patient’s safety which arose out of gross ignorance or gross negligence, could the Doctor concerned be compelled to face the trial for criminal negligence in the treatment administered by him. For every mishap or death during the treatment, the Doctor concerned cannot be proceeded against for punishment," the bench further observed.
Further relying on the Supreme Court's observations made in respect to medical negligence while pronouncing the order in the case of Jacob Mathew v. State of Punjab, the HC bench highlighted how the Apex Court cautioned to sensitize the Trial Courts about the need to be extremely diligent while dealing with cases of medical negligence wherein Doctors are booked for the commission of offence under Section 304A Indian penal Code, 1860 for the death of the patients treated by them.
"The general psyche of the society at large is that aspersions are cast about the negligence of the Doctors and other medical personnel whenever a patient treated by them meets with untimely death. It is really unfortunate that the tendency to blame the Doctor for the death of the patient, notwithstanding the fact that it was inevitable in the nature of the ailment suffered by him, is far high when compared with the gratitude shown to a medical professional for saving the life of a patient. This does not mean that the mighty hands of law shall always remain tied whenever a complaint sprouts up about rash and negligent conduct of a medical professional. All that is intended to be conveyed is that the authorities concerned shall not be swayed away by the predilections of aggrieved persons whose minds, due to desperation, tend to find fault with the unsuccessful medical practitioner who strived hard to save the life of his patient," the HC bench observed at this outset.
The High Court was considering an appeal by a gastroenterologist, who was booked after a 29-year-old kidney transplant patient died while receiving treatment from the accused doctor. The patient was suffering from abdominal pain and vomiting and, therefore, was admitted to a private hospital in Kochi. After he developed complications late at night, the duty nurse called the petitioner doctor on the phone, who advised administering medicines and conducting diagnostic tests. However, the patient succumbed to renal complications within 34 hours.
Consequently, the deceased's father filed a complaint against the doctor, accusing him of medical negligence. Even though multiple expert panels indicated that the doctor had provided reasonable medical care, the State-level apex body found fault with the doctor's treatment.
The State Level Apex Body consisting of Director Health Services, Director General of Prosecution, Director of Medical Education and Additional Director of Health Services (Vigilance), found fault with the petitioner and directed an investigation against him on the charge of criminal negligence. The reasons cited by the Apex Body included the fact that the petitioner did not attend the patient for urgent direct evaluation in spite of the call from the duty Nurse about the illness of the patient, and the doctor did not refer the matter to a Nephrologist despite being aware that the patient had undergone renal transplant surgery.
Therefore, a criminal case was initiated against the doctor for the offence of causing death by negligence under Section 304A of the Indian Penal Code. Challenging this, the doctor approached the High Court and filed a plea urging the Court to quash the case.
Meanwhile, the petitioner doctor argued that the continuation of the proceedings against him based on the final report filed by the investigating officer, was an abuse of process of the Court, since there was no material to implicate the petitioner in the crime. For these reasons, the petitioner doctor sought to wuash the final report and further proceedings initiated against him.
While considering the doctor's plea, the HC bench concluded that the materials on record did not indicate any gross negligence on the part of the treating doctor and further observed that the doctor had acted within the standard medical practices.
"As far as the present case is concerned, it has to be stated that there is absolutely nothing on record to show that the act of the petitioner prescribing some medicines and directing the laboratory evaluation of the vitals of the patient, amounted to gross negligence which is never expected from a Doctor of similar stature. On the other hand, there are materials to show that the course so adopted by him would have been followed if the same contingency was faced by any other medical professional in the field," noted the Court.
"That being so, the criminal prosecution initiated against the petitioner can only be termed as an abuse of process of court which has to be terminated at the threshold. Needless to say that the prayer in this petition to quash the proceedings in C.C.No.174/2018 on the files of the Additional Chief Judicial Magistrate Court, Ernakulam, has to be allowed," it further observed.
With this observation, the HC bench quashed the proceedings pending against the petitioner on the files of the Additional Chief Judicial Magistrate Court, Ernakulam.
To view the order, click on the link below:
