In a recent judgment, the Bombay High Court turned down the anticipatory bail pleas of a doctor couple booked for the death of a woman patient under section 304 of Indian Penal Code (culpable homicide not amounting to murder) after the patient died earlier this year. The high court noted that there was no effort to refer the woman to another doctor in the absence of Deepa Pawaskar and she (Deepa) continued to prescribe medicines telephonically. “There was no resident medical officer or any other doctor to look after the patient in the absence of Dr Deepa and Sanjeev Pawaskar even when the couple knew that they would not be available in the hospital.” The accused couple, in their pleas, argued that they could not be charged with culpable homicide not amounting to murder and should, at the most, be booked under section 304 (A) (causing death due to negligence). However, the high court said that in the present case, the applicants took the risk of doing something with recklessness and indifference to the consequences.
“An error in diagnosis could be negligence and covered under section 304 (A) of the Indian Penal Code. But this is a case of prescription without diagnosis and, therefore, culpable negligence.” “When a doctor fails in his duty, is it not tantamount to criminal negligence? The courts cannot ignore the ethical nature of the medical law by liberally extending the legal protection to the medical professionals…” Thus, the Bench concluded that “Prescription without diagnosis would amount to culpable negligence. This amounts to gross negligence from the point of standard of care and recklessness and negligence, which is a tricky road to travel”.
In an earlier judgement in the matter of Martin F. DSouza vs Mohd Ishfaq (3541 of 2002) dated 17.02.2009 in the Supreme Court of India, the Bench comprising of Justice Markandey Katju and GS Singhvi laid down precautions which doctor/hospitals/nursing homes should take to protect themselves from complaints of medical negligence. One amongst these relates to telephonic consultation, “No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided (54(b).”
The moral of the story is that telephonic consultations should be avoided as a routine.
However, if needed, consultations on phone can be given, provided there is an established relationship between the doctor and the patient. And, most importantly, the doctor is fully cognizant of the attendant risks, both medical and medicolegal.
If the concerned patient is under the treatment of a doctor, and the doctor is aware of the nuances of the case, then telephonic consultations can be given. For example, the patient may call the doctor to convey the results of lab tests or histopathology reports that he/she may been advised by the treating doctor. Opinion on an x-ray image may also be sought via a telephonic consultation.
A telephonic consultation for a patient means improved access and convenience. While doctors too would prefer the convenience, the issue of note for them is to recognize when this form of consultation is not sufficient to properly evaluate the patient and address the complaint, and to arrange a face-to-face consultation instead or provide timely and appropriate advice if the condition of the patient is deteriorating.
As a safeguard, the record of the consultation can be maintained with consent of the patient. Likewise, doctors should also be careful about any recordings being made by the patients without their consent. The doctors should be attuned to the tone and content of the speech in the conversation.
The confidentiality and privacy of the consultation and patient health information and other data should be maintained. No data should be shared without the prior consent of the patient.
Failure to abide by these rules could lead to a complaint of medical negligence filed against the doctor.