Providing the right prescription for medications after undertaking proper examination of a patient is the legal duty of every doctor. Certain ailments are only treatable after visual inspection by a doctor and merely relying on verbal description of symptoms over the phone does not serve the purpose. Whilst hearing an Anticipatory Bail application filed by a doctor-couple, the Hon’ble Justice SS Jadhav rejected the application stating that the Applicants were negligent leading to the death of the victim.
In the matter of Deepa Sanjeev Pawaskar and Another Versus The State of Maharashtra, the facts of the case are that the victim, who was pregnant, was admitted to the hospital run by the applicants and after undergoing childbirth, the victim was discharged without receiving any information of the requisite post-operative care. After the victim’s health started to deteriorate, she was again admitted to the hospital. But after being advised by the Applicants over the phone rather than being physically present and undertaking inspection of the victim, the victim subsequently died. As per the contents of the autopsy report, it was highlighted that there was a definitive element of negligence on part of the Applicants due to ignorance of certain symptoms that were neglected resulting in death. The Hon’ble Court, after scrutinizing and evaluating all the material evidence presented before it, noted that:
“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.”
The Court referred to the judgments of the Apex Court in A.S.V.Narayanan Rao v/s. Ratnamala and Anr (2013) 10 SCC 741 and Jacob Mathew v/s. State of Punjab and Anr (2005) 6 SCC 1 which discussed the scope, ambit and extent of medical negligence associated to criminal liability of a doctor. The Court further noted that the victim was unwell after 24 hours of the surgery and should have been referred to another doctor. By avoiding its duties to the patient, the applicants showed their commercial interest in re-admitting the victim to their hospital after her health deteriorated.
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