Petitioner:	Respondent:
Specialty: Obstretics & Gynecology	Jurisdiction: Appeal
State: Andaman and Nicobar Island	District: Siwan

Background of the case: 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. [Para 2] 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). [Para 3] 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. [Para 4] Ground for the Case: 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. [Para 5] Facts of the case: 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. [Para 6] 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 /were not available. The staff had also not informed the family members or the patient about the postoperative care. [Para 7] Issue of 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. Issue of Referral/Second Opinion/Consultation: 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. [Para 8] Issue of Telephonic Instructions/Referral: Commercial Aspect of Medical Practice 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. [Para 9] 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. [Para 10] Death of Patient/FIR: 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. [Para 10] PM Examination: Cause of Death: Pulmonary Embolism 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 thrombo-embolism and bone marrow embolism in medium sized blood vessels Intra-alveolar 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. [Para 11] Opinion of Medical Board: 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 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. [Para 12] 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. The complications were not noticed immediately for want of proper medical officer. (iii) 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) (iv) 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. [Para 13] Issue of Discharge: 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. [Para 14] Conference Leave: 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. [Para 15]