Sunday, 29 July 2018

Whether doctor prescribing medicine without diagnosis would be held guilty for medical negligence?

At this stage, a line of distinction needs to be withdrawn.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,
(i) the patient was directed to be admitted in the absence of the
(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.
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.
1 Deepa Sanjeev Pawaskar.
2 Sanjeev Anant Pawaskar.
The State of Maharashtra.


1 Heard the learned Counsel for the applicants and the learned
APP for State.
2 This is an application under section 438 of the Code of
Criminal Procedure, 1908. The applicants herein are apprehending their
arrest in Crime No. 71 of 2018 registered with Ratnagiri City Police
Station for offence punishable under section 304 read with section 34 of
Indian Penal Code.

3 The applicant No. 1 happens to be the wife of applicant No. 2.
The applicants are medical practitioners. The qualification of the
applicants is M.D. (Gynecology).
4 Issue for consideration : Prescription without diagnosis
and hence resulting into death of the patient amounts to criminal
negligence on the part of the doctors.
5 The whole thrust of the applicants in the present case is that
the act of the applicants would fall under section 304A of the Indian
Penal Code or under section 304 of the Indian Penal Code and therefore,
this Court is considering the issue.
6 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.

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.
7 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
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. 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.
11 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.
12 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
(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
(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
13 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

(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.
14 In the course of investigation, the investigating officer had
recorded the statements of staff of Dr. Pawaskar Hospital. Sarika
Dakare has stated that she has passed her 12th standard. That the
doctors had prepared the discharge card of the patient one day before,
as they were to go out of station. Co-nurse Harshada Kanade had handed
over the discharge papers, birth certificate to the patient at the time of
discharge. On 9/2/2018 from 2 p.m. to 8 p.m., no doctor was available in
the hospital. They had been asked by the doctors to discharge the
patient on 9/2/2018 at 5 p.m. At that time, doctors were not available in
the hospital. She has further stated that as per the telephonic
instructions of Dr. Deepa Pawaskar, the patient was re-admitted. Saline
was given. Saline could not be given on left hand as it was swollen.

15 The statement of one Anuradha Rasal was recorded. She is
also studied up to 10th standard. She was an untrained nurse. On
7/2/2018 when she attended her duty at 8 p.m., she was informed by the
co-nurse Manali Vasave that the applicants are leaving for Pune for
conference on 8/2/2018 and that they have kept discharge papers of
Dynanada Polekar ready and in case there is new patient, they should
call upon Dr. Girish Karmarkar. On 10/2/2018 Dynanada was readmitted.
On telephonic instructions of Dr. Deepa Pawaskar, case
papers were prepared as per her instructions. The new born baby was
not with the mother when she was re-admitted. She was admitted in
room No. 3. She was given dextrose injection through saline. Another
injection was R-din. Dompan tablet and Aciloc was given and as per the
instructions of Dr. Karmarkar, Trazine H was given. The patient had
complaint of nausea, head-ache, giddiness, tremendous, unbearable
pain in her legs, loose motions. However, the said symptoms were not
mentioned in the case papers. There was abdominal inflammation,
swelling on her legs and lips had turned black. Her condition
deteriorated between 4 and 4.30 a.m. The patient was panting for
breath and complained of severe pain in her legs. At 4.30 a.m. Dr. Ketkar
arrived and had shifted her at Parkar Hospital. She has specifically
stated that there was no stretcher and therefore, she had to be taken
upto the car in a plastic sheet. The relatives were made to hold plastic

sheet. Similar are the statements of the other staff nurses.
16 Learned Senior Counsel for the applicants in the course of
argument has submitted that the applicants at the most be prosecuted
under section 304A of the Indian Penal Code and not under section 304
of the Indian Penal Code. What is placed on record to substantiate his
argument is the Literature in respect of Pulmonary Embolism.
Introduction itself reads as follows:
“The pathophysiology of pulmonary embolism. Although
pulmonary embolism can arise from anywhere in the body,
most commonly it arises from the calf veins.”
The literature further shows :
“In patients who survive a pulmonary embolism, recurrent
embolism and death can be prevented with prompt diagnosis
and therapy. Unfortunately, the diagnosis is often missed
because patients with pulmonary embolism present with
nonspecific signs and symptoms.”
17 In the present case, it is more than clear that the patient had
shown specific signs of embolism as she had fever, her calf was aching
terribly. There was swelling on the abdominal, which was apparent. She
had severe head-ache and fever. All these symptoms are noted by the
District Civil Surgeon.

18 The learned APP has submitted that the sonographic report
of the patient dated 6/2/2018 itself showed that “Umbilical artery show
reduced diastolic flow with increased S/D ratio s/o fetoplacental
insufficiency.” In these circumstances, the patient had undergone
cesarean. All the medical case papers of 10th and 11th show that the
medicines were administered on the oral instructions of Dr. Mrs.
19 Learned APP has further submitted that in the course of
investigation, the applicants had tried to tamper with the evidence and
the same cannot be disclosed till filing of the charge-sheet. The medical
Board has also opined that it is a case of negligence, more particularly,
because the visit to Pune on 9/2/2018 was pre-scheduled. The discharge
card was prepared by the Doctors without examining the patient at the
time of discharge. The statement of Dr. Karmarkar shows that one day
Dr. Mr. and Mrs. Pawaskar had casually met him on road and requested
him to attend patient, if necessary in their absence. That he was never
requested by Dr. Pawaskar telephonically to examine the patient
Dynanada. It was at the request of nurse that he had been to examine
Dynanada on humanitarian ground and by virtue of professional
courtesy. In his statement, he has given symptoms of pulmonary
embolism, which can be diagnosed immediately and could have been

20 It is pertinent to note that on 9/3/2018 when the investigation
was in progress, the Indian Medical Association, Ratnagiri Branch wrote a
letter of protest to the District Collector and the Superintendent of
Police, threatening to go on strike for prosecuting Dr. Pawaskar couple
for offence punishable under section 304 of the Indian Penal Code.
They have also warned that they would not hesitate to go on strike in all
cities and at the State level or even at the National level. They had
threatened of keeping the hospital closed in Ratnagiri. The letters were
sent to the Chief Minister of Maharashtra, District Civil Surgeon, District
Information Officer and the Superintendent of Police. It is unfortunate
that all private hospitals in Ratnagiri actually remained closed for 2
days and the patients were forced to rush to Civil Hospital.
21 The medical board has observed that there were clots in
inferior Vena cava. Inferior vein returns blood to the heart from the
lower part of the body. It is a vein which carries de-oxygenated blood
from lower half of the body to the artium of the heart. The said vein
runs beyond abdominal cavity.
22 The learned APP submits that in the eventuality, there was

proper diagnosis at the time of readmission, Dynanada would have been
saved. According to the learned APP, it is criminal negligence, more
particularly, because the first informant had specifically asked as to
whether he should admit his wife in some other hospital and as per the
instructions of Dr. Deepa Pawaskar, the patient was readmitted being
oblivious of the fact that the patient needed readmission within 24 hours
of discharge. It is clear that the patient was not examined by the doctor
at the time of discharge. This Court had perused the discharge certificate
which is signed by the applicants. It was post dated discharge certificate
as it was prepared on 7/2/2018 since the doctors had left for Pune on 8th
in the morning, the date on the discharge card is 9/2/2018.
23 The learned Senior Counsel vehemently submits that this
would be a case of 304(A) and not 304 of the Indian Penal Code. Section
304A reads thus :
304A. Causing death by negligence —Whoever
causes the death of any person by doing any rash
or negligent act not amounting to culpable
homicide, shall be punished with imprisonment of
either description for a term which may extend to
two years, or with fine, or with both.
It is submitted that in no way, it can be said that this was a criminal

24 To appreciate the submissions of the learned Senior Counsel
one has to see the definition of “negligence'” as per Black's Law
Dictionary. The word “negligence” is defined in Black's 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
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.
27 The learned Senior Counsel submits that it is a case of civil law
and the doctors could be made to pay compensation. It is submitted
that at the most it is a negligence under section 304A and not criminal
negligence. Therefore, according to the learned Senior Counsel, the
scope of the present case cannot be enhanced to make out a case of
criminal 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,
(i) the patient was directed to be admitted in the absence of the
(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.
29 The question is whether all this is a civil liability ? Whether the
compensation can buy a child her mother and beloved wife to a

30 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.
31 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.
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.
33 According to the learned Senior Counsel, the offence would at
the most be under section 304A of the Indian Penal Code. The learned
Counsel has drawn attention of this Court to the observations of the
Hon'ble Apex Court in the case of Jacob Mathew v/s. State of Punjab
and anr. reported in (2005) 6 SCC 1, wherein it is held that -
“Indiscriminate prosecution of medical professionals for
criminal negligence is counter-productive and does no
service or good to the society.”
“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. Obviously,
therefore, it will be for the complainant to clearly make
out a case of negligence before a medical practitioner is
charged with or proceeded against criminally.”
“A doctor who administers a medicine known to or used in
a particular branch of medical profession impliedly
declares that he has knowledge of that branch of science
and if he does not, in fact, possess that knowledge, he is
prima facie acting with rashness or negligence.”
In the aforesaid Judgment, the Hon'ble Apex Court has also held as
follows :

“To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did
something or failed to do something which in the given
facts and circumstances no medical professional in his
ordinary senses and prudence would have done or failed
to do. The hazard taken by the accused doctor should be
of such a nature that the injury which resulted was most
likely imminent.”
The Hon'ble Apex Court has discussed the observations of Sir Lawrence
Jenkins in Emperor v. Omkar Rampratap (1902) 4 Bom. LR 679 as
follows :
“To impose criminal liability under Section 304-A, Indian Penal
Code, it is necessary that the death should have been the
direct result of a rash and negligent act of the accused, and
that act must be the proximate and efficient cause without the
intervention of another's negligence. It must be the causa
causans; it is not enough that it may have been the causa sine
qua non."
It is also observed by the Hon'ble Apex Court that :
“an error of judgment on the part of a professional is not
negligence per se. Higher the acuteness in emergency and
higher the complication, more are the chances of error of
It is pertinent to note that present case is not a case of error of
judgment but of pure neglect and taking the patient for granted.

34 The next Judgment relied by the learned Senior Counsel is in
the case of P.B. Desasi v/s. State of Maharashtra reported in (2013) 15
SCC 481, wherein the Hon'ble Apex Court has observed that -
“An omission is sometimes called a negative act, but this
seems dangerous practice, for it too easily permits an
omission to be substituted for an act without requiring the
special requirement for omission liability such as legal duty
and the physical capacity to perform the act.”
In that case, the Court was considering the purport of section 338 of the
Indian Penal Code. The Hon'ble Apex Court had held that -
“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.”
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
36 The learned Senior Counsel has also placed reliance on the
Judgment of the Apex Court in the case of Mahadev Prasad Kaushik v/s.
State of U.P. reported in (2009) ALL MR (Cri.) 1864 (SC). The facts of
the case are at variance. In that case the complainant had alleged that
the treatment was given by the appellant who administered three
injections to Buddha Ram and within half an hour, Buddha Ram died.
That could be a case of an error of judgment. In case of Mahadev
Prasad Kaushik(cited supra), it was an appeal filed against the
conviction recorded by the High Court. There was material evidence
before the Court. 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.
37 The other cases relied upon by the learned Senior Counsel are
in respect of the complaints decided by the Consumer Protection Forum.
38 In the case of A.S.V.Narayanan Rao v/s. Ratnamala and anr.

Reported in (2013) 10 SCC 741, the Hon'ble Apex Court has placed
reliance upon the Judgment of the Apex Court in the case of Jacob
Mathew(cited supra) and has held that for an act to amount to criminal
negligence, the degree of negligence should be much higher i.e. gross or
of a very high degree. The word “gross” has not been used in Section
304-A of the Indian Penal Code, yet it is settled that in criminal law
negligence or recklessness, to be so held, must be of such a high degree
as to be “gross”.
39 It is in the aforesaid observations that this Court is not
inclined to exercise the discretion under section 438 of the Code of
Criminal Procedure, 1973 in favour of the applicants.
40 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.
41 The application being sans merits stands rejected and
disposed of accordingly.
42 However, operation of this order is stayed till 2/8/2018.

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