Most of you reading this would have at some point consulted your doctor on the phone - through a call or text or whatsapp message and were prescribed medicines or advised tests, perhaps even hospitalisation. A 2018 judgment of the Mumbai High Court in Deepa Sanjeev Pawaskar Vs State of Maharashtra has been doing the rounds with messages suggesting that telephone consultation would make the doctor liable for prosecution under Section 304 of the Indian Penal Code (IPC) for culpable homicide not amounting to murder! However, the context in this case was entirely different. It was a finding in an anticipatory bail plea of a doctor couple who had allegedly advised a patient with post delivery complications not to go to another hospital although they were away and prescribed medicines on the phone to the chemist. The patient died and the police booked the doctors under Section 304 IPC.
The Mumbai High Court had noted that as the deceased was unwell 24 hours after her caesarean operation, she should have been referred to another doctor, when the original treating doctors were unavailable. “Not doing the same simply shows the commercial interest the applicants had in re-admitting the deceased to their hospital.”
The court had ruled that “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”. The doctors clearly had no mens rea or criminal intention but the Court viewed the case as an act done with the knowledge that it is likely to cause death. The doctors ultimately obtained anticipatory bail from the Supreme Court.
There is a clear distinction between Section 304 and 304A of the IPC, usually the bone of contention in fatal motor accident cases. While 304 is culpable homicide not amounting to murder and is punishable with life imprisonment or for 10 years, 304A is causing death by a rash and negligent act, carrying a 2 year jail term.
The word “gross” has not been used in Section 304A IPC, yet it is settled that in criminal law, ‘negligence’ or ‘recklessness’ must be of such a high degree as to be “gross.” The Supreme Court in P.B. Desai Vs State of Maharashtra was categorical. “The solution to the issue of punishing what is described loosely, and possibly inaccurately, as negligence is to make a clear distinction between negligence and recklessness and to reserve criminal punishment for the latter. If the conduct in question involves elements of recklessness, then it is punishable and should not be described as merely negligent.”
The Apex Court in what is considered a landmark decision on medical negligence in Jacob Mathew Vs State of Punjab had cautioned prosecuting agencies that “Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society” adding that “a medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act.” The real test of criminal negligence is whether the hazard taken by the accused doctor is of “such a nature that the injury which resulted was most likely imminent.”
The re-surfacing of this old news has triggered panic in medical circles. Clinical examination before prescribing drugs is the correct practice in an ideal situation.
But life is full of surprises and emergencies and doctors cannot be omnipresent. Telephonic consultation may save lives, especially in cases where the patient cannot travel or when there is a delay in getting direct medical treatment. Even in the emergency wards of hospitals, specialists are not available round the clock, billboards claiming 24x7 emergency care notwithstanding. The duty doctor would invariably whatsapp or call the expert, say a cardiologist, with the ECG report,
pulse and blood pressure readings, and based on the telephonic advice, administer first aid or shift the patient to the Intensive Care Unit.
Unlike certain places in the West, the concept of 24 or 36 hour shifts of specialist doctors does not exist. Neither is the practice of house calls in vogue today.
Although Section 97 of the Drugs and Cosmetics Act contains a warning that Schedule H drugs are to be sold only on the prescription of a Registered Medical Practitioner and only the required amount of medication specified in the prescription can be dispensed, it is common knowledge that chemists follow it in the breach. If a patient is able to convey symptoms accurately and truthfully and voluntarily seeks help on the telephone, it is up to the doctor whether or not to oblige or insist on clinical consultation.
For that matter, whatsapp is also being accepted for the service of summons and notices. The same Bombay High Court in Kross Television India Pvt. Ltd. Vs Vikhyat Chitra Production held that the “Indian Judiciary system is flexible enough to consider a notice issued through ‘WhatsApp’ or through email admissible in the court of law.” Show up at your doctor’s clinic in person as far as possible. It is also professional and in your interest. But in an emergency, or for some valid reason, if clinical consultation is not viable, telephonic advice need not be feared by doctors or patients as it cannot be criminalised....