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Prescribing Medicine Sans Diagnosis Amounts To Culpable Negligence

In Deepa Sanjeev Pawaskar vs State Of Maharastra, the doctors were accused of criminal negligence due to the death of a pregnant woman at the nursing home run by the doctors.

The Bombay High Court held that 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.

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 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.

The actions of the doctors in prescribing medicine over phone without looking at the patient, or insisting on the patient to be admitted into their hospital inspite of themselves not being personally present to attend to the patient and various other acts together amount to criminal and culpable negligence.

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