Doctors cannot be put to criminal prosecution for negligence during the Pandemic: Chhattisgarh High Court
Doctors have put themselves through extraordinary situations to treat and serve people during a situation of chaos amidst the ongoing Covid-19 Pandemic. Decisions which are taken as a last resort to save lives cannot be held against these doctors as ‘medical negligence’. This was ruled by Hon’ble Shri Justice Goutam Bhaduri in the case of Sanjay Ambastha Vs. State of Chhattisgarh, Through Secretary, Health and Family Welfare Department [W.P.(C) No. 2653 of 2021] on the 02nd of July before the Hon’ble High Court of Chhattisgarh at Bilaspur.
The brief facts of the case are, the petitioner’s mother, aged about 69 years, was admitted to hospital named Ram Krishna Care Medical Science Pvt. Ltd. on 22.09.2020 with an infection of Jaundice and no symptom of Covid-19. Subsequently, she was put in a Covid ward after she was tested Covid positive at the time of admission. She was administered with ‘Remdesivir’ Injection and due to wrong treatment of administrating injection her health got deteriorated from 26.09.2020. Subsequently after deterioration Remdesivir injection was stopped. Later, an RTPCR test was conducted wherein she was found covid negative but still she was kept with the covid patient. The mother of the petitioner died due to post covid complication. Further, it is stated that the dead body was delivered to the petitioner without following the safety protocol and it was transported through the Ambulance without safety measures. The petitioner has filed the present petition claiming that the hospital is responsible for the negligent treatment and did not follow the covid norms in handling the dead body.
The counsel for the petitioner submitted that, the remedesivir injection was wrongly administered and thus the mother died. It was also submitted that although the mother of the petitioner died because of covid complication, her death the dead body was handed over without following the guidelines where, the Hospital was required to give the body in a double layer leak proof zipped body bag and to be handed over to the transport employee. Whereas, in respect of case of mother of petitioner, it was handed over to the petitioner. The counsel for the respondent however opposed the arguments claiming that, the patient was covid negative and thus, the protocols regarding the dead body need not be followed.
The court heard the submission of both counsels and observed the case in the light of the huge burden on the shoulders of these doctors to save lives amidst the pandemic. The argument of medical negligence was dismissed by the court citing the judgement in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and Another AIR 2004 SC 4091 wherein it was held that, “the bonafide medical practitioners should not be put through unnecessary harassment. The court observed that Doctors would not be able to save lives if they were to tremble with the fear of facing criminal prosecution. In such a case, a medical professional may leave a terminally ill patient to his own fate in an emergency where the chance of success may be 10% rather than taking the risk of making a last-ditch effort towards saving the subject and facing criminal prosecution if the effort fails. The court held that simple lack of care, error of judgment, or an accident is not proof of negligence on the part of a medical professional and that failure to use special or extraordinary precautions that might have prevented a particular incidence cannot be the standard for judging alleged medical negligence”.
The concept of medical negligence was further analyzed throwing light to the judgement held by the supreme court in Jacob Mathew v. State of Punjab & Another [(2005) 6 SCC 1] wherein “Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used).”
Applying the rationale above, the court decreed that it would be unfair if the doctors are burdened with criminal negligence and would cause emotional turmoil to them. Asper article 226 of the constitution, the court cannot undertake enquiry regarding the second aspect of this complaint. Since there was no merit in the petition, the petition was dismissed.