In the matter titled as “Deepa Sanjeev Pawaskar & Anr. Versus the State of Maharastra, Criminal Anticipatory Bail Application No. 513 of 2018, the Hon’ble High Court of Bombay while dismissing the anticipatory bail application filed by the two doctors has held that prescription without diagnosis would amount to culpable negligence.

Facts of the case

1. The applicants are medical practitioners. The qualification of the applicants is M.D. (Gynecology).
2. It is the case of the prosecution that on 7th March, 2018 Pranav Pramod Polekar was constrained to lodge a report at the police station. The first informant informed the police that Dnyanada was his wife. Dnyanada was hail and hearty. That in the month of June, 2017 preliminary diagnosis indicated symptoms of having conceived and therefore, they had visited the hospital of Dr. Pawaskar. Dr. Sanjiv Pawaskar (applicant No. 2) had examined Dnyanada and had confirmed that she was pregnant. Dnyanada was registered with Dr. Pawaskar.
3. Dnyanada used to visit the hospital regularly for routine check-up. She had taken the medicine prescribed by Dr. Pawaskar. He was informed that due date is approximately 18/2/2018.
4. On 5/2/2018 she had started having labour pains and therefore, they had rushed to Dr. Pawaskar Hospital. The doctor and his wife were present. She was admitted in the hospital. Initially, the family members were informed that she would have normal delivery.
5. On 6/2/2018 she was advised to undergo sonography test at Gurukrupa Sonography Center. Upon seeing the sonography report, the doctors were of the opinion that she should undergo cesarean operation. On 6/2/2018 she had undergone cesarean operation.
6. Dr. Ketkar was the anaesthesist. Dnyanada had given birth to a female child. The baby was admitted in Gajanan Bal Rugnalay of Dr. Vijay Suryagandh. On 6/2/2018 Dnyanada appeared to be normal. The first informant had deposited Rs. 25,000/- towards medical fees.
7. On 8/2/2018 baby was also discharged and on 9/2/2018 at 5 p.m. Dnyanada was discharged from Dr. Pawaskar Hospital. At the time of discharge, doctors were not available. The staff had also not informed the family members or the patient about the postoperative care.
8. On 10/2/2018 Dnyanada was vomiting throughout the day. Her relatives had called upon Dr. Deepa Pawaskar. She had asked them to call her from medical shop. The doctor had given instructions to the medical shop owner and accordingly, he had given them tablets which she had taken. On the same day, in the evening Dnyanada had fever and she continued vomiting and therefore, she was taken to the hospital of Dr. Deepa Pawaskar at 8.30 p.m.. In their presence, the staff nurse had called upon Dr. Deepa Pawaskar. She was advised to admit the patient. The staff had informed that the doctors are not available in the hospital. The first informant had asked as to whether she should be taken to another hospital. However, he was informed that it was not necessary and that the patient would be admitted for one day and on the next day, she would be discharged.
9. Dnyanada was being treated by two nurses, who were administering medicines on the telephonic instructions of Dr. Deepa Pawaskar. The condition of the patient was deteriorating and the relatives, out of anxiety were accordingly informing the staff nurse. The relatives were insisting upon shifting the patient to another hospital. However, the staff nurse upon instructions of the applicant No. 1 had informed the relatives that they need not panic and that they are in touch with Dr. Deepa Pawaskar and she has guided them telephonically. At about 10.15 p.m. Dr. Girish Karmarkar had been to the hospital. He had patiently heard about the complaints of the patient. Dr. Karmarkar had prescribed the tablet-Trazine H, which the first informant got from National Medical Shop as advised by Dr. Karmarkar.
10. On 11/2/2018 at about 3.45 a.m. his sister Mrunali, who was with the patient, had asked the first informant to rush to the hospital. They realised that tip of nose and lips of Dnyanada had turned black. Dr. Girish Karmarkar did not visit again nor enquired about the patient. The first informant had realised that the health of the patient had deteriorated to a large extent. He had to quarrel with the staff and thereafter, at 4 a.m. the staff had called upon Dr. Pawaskar. Upon his instructions, Dr. Ketkar had visited hospital at 4.30 a.m.. Dr. Ketkar had enquired as to why the head of the patient was lowered. Upon objectionable query made by Dr. Ketkar, the staff had informed that the head was lowered at the instructions of Dr. Karmarkar. By then Dnyanada was getting fits. Dr. Ketkar felt need of putting her on oxygen. Dr. Ketkar had diagnosed poor prognosis and therefore, needed to be shifted to Parkar Hospital. Dr. Ketkar was not able to tell the relatives of as to what had happened to her. He informed Dr. Pawaskar that he is shifting the patient to Parkar Hospital. There was no ambulance with Dr. Pawaskar. To save time, Dr. Ketkar had to take the patient in his own car. She was admitted in the ICU of Parkar Hospital. She was kept on ventilator and at 7 a.m. the doctor had informed that Dnyanada had expired.
11. The first informant had specifically stated that it was due to negligence by the present applicants that he had lost his wife. On the basis of the said report, an offence was registered. Investigation was set in motion.
12. The dead body of Dnyanada was sent for autopsy. The post mortem notes indicated that the cause of death was due to pulmonary embolism. Thereafter, it was sent for histopathological test. The findings recorded in the histopathological test are as follows :

1. Brain: congestion.
2. Heart: No specific lesion
3. Lungs: Pulmonary thromboembolism and bone marrow embolism in medium sized blood vessels, intraalveolar hemorrhages and focal pulmonary edema.
4. Liver: Focal fatty change, portal triaditis.
5. Spleen, Kidney: Congestion
6. Uterus with bilateral adnexae: Postpartum changes
7. LSCS suture site: Acute nonspecific inflammation.

Issue for Consideration: Prescription without diagnosis and hence resulting into death of the patient amounts to criminal negligence on the part of the doctors

Judgment

24 To appreciate the submissions of the learned Senior Counsel one has to see the definition of “negligence” as per Blacks Law Dictionary. The word “negligence” is defined in Blacks Law Dictionary as follows :

“Failure to exercise the standard of care that a reasonably prudent person would have exercised in similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others rights. The term denotes culpable carelessness.”

The Criminal Negligence is defined as “Gross negligence so extreme that it is punishable as a crime.” Whereas Culpable Negligence is an intentional conduct which the actor may not intend to be harmful but which ordinary and reasonably prudent man would recognise as involving a strong probability of injury to others. This would be a case of culpable neglect which is defined as censurable or blameworthy neglect: neglect i.e. less than gross carelessness, but more than failure to use ordinary care.

25 Doctors failure to exercise the degree of care and skill that a physician or surgeon of the medical specialty would use under similar circumstances would amount to malpractice. An error in diagnosis could be negligence and covered under section 304A of the Indian Penal Code. But this is a case of prescription without diagnosis and therefore, culpable negligence. The element of criminality is introduced not only by a guilty mind but by the practitioner having run a risk of doing something with recklessness and indifference to the consequences. It should be added that this negligence or rashness is gross in nature.

26 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.

28 At this stage, a line of distinction needs to be withdrawn. As is held above, in case there was an error in diagnosis, it would be a civil liability. But in the present case,

1. the patient was directed to be admitted in the absence of the doctors;
2. the medicines were administered on telephonic instructions without even enquiring about the symptoms or nature of the pain suffered by the patient;
3. there was no resident medical officer;
4. no alternative arrangement was made;
5. In fact, Dr. Karmarkar was also called by the staff when the health of the patient started deteriorating. The applicants had not even bothered to ask Dr. Karmarkar about the treatment given by him or the condition of the patient.
6. All these when the complainant wanted to admit his wife in another hospital.

32 The time has come for weeding out careless and negligent persons in the medical profession. 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. Recklessness and negligence are tricky road to travel. There is gross negligence from the point of standard of care. Prescription without diagnosis would amount to culpable negligence. This issue is decided in the affirmative.

35 In the present case, the gynecologist should have been aware that a person who was discharged after cesarean operation had to be admitted within 24 hours. There was no reason for not referring the patient to another doctor. This was the commercial aspect of looking at the profession and retaining the patient in the absence of the doctor and then claiming that it is an error of judgment and that she has died due to pulmonary embolism for which the doctors cannot be held responsible. Firstly the doctors had not thoroughly examined the patient at the time of discharge or else some diagnosis could have been made at that stage itself.