HC: Prescribing medicines without diagnosis amounts to culpable negligence

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

Justice Sadhana Jadhav made the observations yesterday while hearing the anticipatory bail pleas filed by a gynaecologist couple – Deepa and 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 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 Deepa Pawaskar, who asked them to go to a medicine shop and let her speak with the chemist there over 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 Deepa and 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 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 Deepa and 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 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 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.

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