Case Study

Prescription without diagnosis (Telephonic Advise) would amount to culpable negligence

Deepa Sanjeev Pawaskar,  Sanjeev Anant Pawaskar.  V. The State of Maharashtra, ANTICIPATORY BAIL APPLICATION NO. 513 OF 2018, Decided on JULY 25, 2018. By Hon’be Bombay High Court


FACTS:: The applicants are medical practitioners, M.D. (Gynecology). In the month of June, 2017 Dr. Sanjiv Pawaskar had examined Dnyanada and had confirmed that she was pregnant. Dnyanada was registered with Dr. Pawaskar. 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. 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. 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. 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. 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. 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.

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. 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. 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. 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 : Brain :congestion. Heart :No specific lesion Lungs : Pulmonary thromboembolism and bone marrow embolism in medium sized blood vessels Intraalveolar Hemorrhages and focal pulmonary edema.

Liver : Focal fatty change, portal triaditis. Spleen, Kidney : Congestion Uterus with bilateral adnexae : Postpartum changes. LSCS suture site :Acute nonspecific inflammation. The case papers of Dr. Pawaskar Hospital, Dr. Parkar’s Hospital alongwith medical reports were referred to the District Civil Surgeon and his opinion was sought vide report dated 3/3/2018. His opinion was as follows : (i) Since Dnyanada Polekar had undergone cesarean operation and was readmitted on the very next day, it was incumbent upon the hospital to have examined the patient by the gynecologist before admission. (ii) The patient was admitted on the telephonic instructions of Dr. Deepa Pawaskar. (iii) Dr. Deepa Pawaskar is responsible for the health condition of the patient. (iv) Dr Deepa Pawaskar should have referred the patient to a specialist immediately. Her negligence is apparent on the face of the record. (v) The health condition was not monitored properly from 10/2/2018 8.30 p.m. to 11/2/2018 5.40 a.m. and therefore, negligence is apparent. The second report given by the District Civil Surgeon to the investigating officer dated 13th March, 2018 reads as follows : The statement of the staff nurses was recorded by the Investigating Officer and was placed before the District Civil Surgeon alongwith medical reports, upon which, medical analysis was as follows : (i) Smt. Shital Thick had examined the patient at the time of readmission. Her educational qualification is 12th standard and passed A.N.M.. Another staff nurse was Smt. Anuradha Sharad Rasal whose educational qualification is S.S.C. After the patient was admitted at 8.30 p.m., she was not examined by any medical officer. Dr. Girish Karmarkar had prescribed Trazin H. There was no preliminary assessment of the ailment and therefore, the treatment was not proper. The patient ought to have undergone pathological test such as X-ray and sonographic test. The condition of the patient ought to have been monitored every half an hour. The relatives of the patient were not informed immediately about the poor prognosis. (ii) The absence of Dr. Deepa Pawaskar was pre-planned and therefore, the patient ought not to have been admitted in her absence. Except checking pulse and blood pressure, no other tests were performed on the patient. (iii) The complications were not noticed immediately for want of proper medical officer. (iv) Civil Surgeon has assigned reasons for pulmonary embolism and the symptoms which were found in patient Dnyanada, which are as follows : (1) Restlessness (2) Leg pain (3) Breathlessness (4) Pedal oedema (5) Cold extremities Talwalkar 9 aba513.18.doc (6) Pulse 132/min (on monitor) (7) RR 32/min (on monitor) (v) There is no record to show that there was any effort to refer the re-admitted patient to another doctor in the absence of Deepa Pawaskar and she continued to prescribe medicine telephonically. There was no resident medical officer or any other doctor to look after the patient in the absence of Mr. and Mrs. Pawaskar. In fact, the said trip was prescheduled.

OBSERVATIONS: In the present case, (i) the patient was directed to be admitted in the absence of the doctors; (ii) the medicines were administered on telephonic instructions without even enquiring about the symptoms or nature of the pain suffered by the patient; (iii) there was no resident medical officer; (iv) no alternative arrangement was made; (v) 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. (vi) All these when the complainant wanted to admit his wife in another hospital. The question is whether all this is a civil liability ? Whether the compensation can buy a child her mother and beloved wife to a husband To add to all this, the applicants had indulged into pressure tactics through Indian Medical Association, Ratnagiri Branch by putting other vulnerable patients into peril. Initially, the report of the Civil Surgeon clearly indicated that the applicants were responsible for the cause of death. However, subsequently, all the doctors had mellowed down in support of the applicants. There is no element of deterrence to medical fraternity. Negligence becomes actionable on account of the injury resulting from the act or omission to commit the act amounting to negligence i.e. criminal negligence. The initially essential components are breached out and the resultant damage. The medical professionals have been put on pedestal near mortals especially destitute patient and their families suffer because of lack of knowledge and over imposition of technologies in law. 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. 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. In the present case, the material shows that the applicants were influential so much that the doctors had gone on strike and closed the private hospital for a week. These observations are restricted to the application under section 438 of the Code of Criminal Procedure, 1973 and the same shall not be taken into consideration in any other proceedings. The application being sans merits stands rejected and disposed of accordingly. However, operation of this order is stayed till 2/8/2018.

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