ATTORNEY-GENERAL v. BRUNDZA

(HIGH COURT)

ATTORNEY-GENERAL v. BRUNDZA

HC-NS.193.1960

Principles

· Criminal Law—Hurt—Penal Code, s. 284 (1)—Gross negligence—Charlatanry——Doctor’s inadequate diagnosis and negligent treatment.

· Criminal Law—Medical doctor—Malpractice amounting to charlatanry—Gross negligence—Penal Code, s. 284 (1)

· Criminal Law—Negligence likely to cause hurt—Penal Code, s .229 Medical doctor’s administration of general anaesthetic without assistance

· Criminal Law—Merger——Doctor who released unconscious patient after negligent administration of general anaesthetic not guilty of separate offence under Penal Code, s. 231, where charged and convicted under Penal Code, s. 229

Accused, a doctor maintaining a private clinic in Khartoum, treated a patient who was suffering from retention of urine by means of an electrical apparatus which had no possible value for the patient’s illness, having failed to diagnose the illness beforehand by standard medical methods. After a few days of this treatment the patients condition failed to improve. Accused then inserted a thick metal ‘ sound” into the urethra, perforating the urethra and causing severe haemorrhage. The next day accused inserted another sound” and gave the patient a general anaesthetic for the pain caused by the insertion. Contrary to medical practice, there was no nurse or medical assistant in attendance when he gave the anaesthetic. The patient was taken home unconscious and admitted to hospital the next day.
Held: (i) A doctor who fails to make proper examination of a patient, treats him with a useless and charlatanic device and applies another device in a negligent manner, causing hurt thereby, is guilty of committing an act so rashly and negligently as to endanger human life or the personal safety of others,” under Penal Code, s. 284.
(ii)” Administration of a general anaesthetic in a private out patient clinic without a qualified assistant, contrary to accepted practice. is an act likely to cause hurt or injury,” under Penal Code, s. 229.
(iii) A doctor’s release of a patient still unconscious from a general anaesthetic does not constitute a separate offence under Penal Code. S. 231, where the doctor was also charged under Section 229 for negligent administration of the anaesthetic.

Judgment

Advocates: Salih Farah ………for the Attorney-General

Mubarak Zarroug ............................... for the accused

T. S. Cotran, Magistrate of First Class. April 12, 1960 :—There are three central figures in this case: the patient, the accused and Dr. Abdul Nabi, who examined and treated the patient almost immediately after the accused, did. The accused is a doctor practising in Khartoum. He is a Lithuanian. He was engaged as a Government doctor by the Ministry o Health in 1955, but after serving a few months he left the Government service and opened a private practice.

On December 3, 1958, the patient, P.W. 1, who is a man of about fifty- five, went to the accused’s clinic and told him that he was suffering from “retention of the urine.” The patient said that he passed urine “drop by drop, slowly, slowly.” The accused examined the lower part of the patient’s abdomen. He told the patient that the treatment would take five days, and after agreeing with him about the remuneration, the accused told him to come the next day for commencement of the treatment. In the next four days the accused treated the patient by the use of an electric apparatus which he called an “ultra-sonic machine.” It had two handles, one of which was placed on the bladder and the other below the testicles. The accused operated this machine for about ten or fifteen minutes each day, and when on the fifth day the patient told the accused he had not improved, the accused inserted in his urethra “an iron.” The court finds as a matter of fact that that “iron” was a metal sound. The patient felt severe pain. He went home, ordered a cup of tea, and as he was drinking it, he had a very severe haemorrhage from the penis. The patient felt relatively better the next day and went again to the accused, who demanded more money for further treatment. The patient was again subjected to the “ultra-sonic machine’ treatment for one day, and the next day the accused inserted into the urethra several metal sounds of various sizes, the last being thick. The patient was wider such great pain that the accused had to tie him into the chair, and when this did not help, the accused injected him with an anaesthetic, which made the patient completely unconscious. He only regained consciousness when he was in a taxi on his way home to El Dueim. The accused had left his patient with the latter’s son, who usually came with his father to accused’s clinic. The same night the patient was unable to sleep. Another doctor was called, and he gave him sleeping pills. The next day or the day after, the patient’s family took him to hospital. That was on or about December 15, 1958.

At the Khartoum Civil Hospital the patient was examined by Dr. Musa Abdul Nabi, who noticed signs of burning in the place where the “ultra sonic machine” handles were applied. When Dr. Abdul Nabi questioned the patient about the burns, the latter told him the story that has just been related. Dr. Abdel Nabi reported the case to his senior surgeon Dr. Bayoumi, who saw the patient, and later informed the Province medical authorities.

There is no reason at all why the story as told to the court by the patient should not be believed in its entirety. Dr. Abdul Nabi, who examined the patient on admission, found that he had an enlarged prostate and had an infection in the urethra. From the story described above by the patient, Dr. Abdul Nabi formed the opinion that the only malady which the patient had when he visited the accused was an enlarged prostate. That the haemorrhage occurred after the use of the metal sounds is consistent only with the accused making a false passage in the patient’s urethra, and that the urethra infection which the patient had was caused by the puncture and the use of improperly sterilised surgical instruments.

I have said that there is no reason why I should not accept the patient’s story in its entirety. Where it conflicts with that of the accused, I believe the patient. In my opinion the patient’s memory of what has been done to him in a clinic is by far more retentive than that of a doctor, who, after all, sees dozens of patients. Furthermore, the patient’s son was present on most occasions, and he saw what was being done to his father, and has corroborated his father in every matenal particular. I therefore reject the accused’s testimony that he: (a) examined the patient’s prostate by inserting his finger from the rectum, (b) that lie first inserted elastic boogies to remove the stricture, and (c) that he gave him antibiotic injections, i.e;, penicillin or streptomydn.

I believe the patient and his son when they said that the accused only examined the bladder by palpitating it. I should think that the insertion of a finger in the rectum to examine the prostate is such a unique experience that it is not possible for the patient to have forgotten it. It should be noticed that advocate Zarroug for the accused has not cross-examined the patient or his son about this rectal examination. I am bound to conclude that it did not happen. Nor do I accept the accused’s version that he inserted a “fly rubber boogie” in the urethra on the first day or any other day. The patient said that accused on the fifth day brought “an iron” and inserted it in the urethra. If it was rubber the patient surely would have used the word “lastic.” In the patient’s statement in the case diary, which was taken a few weeks after the incident and when everything was still fresh in his mind, he does not mention either a rectal examination of the prostate or a rubber boogie. On the contrary he reaffirms that accused used an “iron rod” after four days of electric treatment on the “ ultra-sonic machine.” I think it is important to keep in mind what the patient told the accused when he went to see him on December 3. The patient said:

“I have retention of urine, I pass water drop by drop, slowly, slowly.” In other words, there was no absolute retention. The patient was passing urine, but slowly and by drops. Dr. Abdul Nabi told the court, and I accept this view, that if the patient really had “absolute retention” he would have refused the doctor’s advice “to come tomorrow,” and would have immediately gone to another doctor to get relief. When the patient was seen by Dr. Abdul Nabi on December 15 he was suffering from a case of absolute retention. He had to be catheterised. It should be noted that the patient was not catheterised by the accused. A catheter is a tube, which is either of rubber or of metal. When a patient has an acute case of retention, he is relieved (i.e., made to pass water) by using in the first instance a rubber catheter, and if this is unsuccessful, then a metal catheter is used. Sounds on the other hand are solid, i.e., there is no pipe inside them. Sounds can be roughly divided into rubber and metal sounds. These are used to open the urethra if there is blockage. At first a rubber sound of the thinnest gauge should be used, and if this is not successful, then a thicker one and ultimately a metal one.

Now the accused did not examine the patient rectally, so he did not know how enlarged, if at all, was his prostate. The accused could not possibly have known if the patient had a stricture, because on the first day he did not examine his penis or insert therein any instrument. The accused applied the electric “ultra-sonic machine” handles, one below the testicles and one handle on the bladder for four days. The question that must be asked is what is the purpose of this machine and what is it supposed to have done to the poor patient’s condition. Dr. Rashid Farid and Dr. Abdul Nabi have never heard of this “ultra-sonic machine,” and even if I am so uncharitable as not to credit them with being up to date, I am not at all convinced, with all respect to Dr. Buchie, of what this machine is supposed to do. If it is supposed to “soften tissues” of the stricture before the insertion of the sounds, you must know where exactly the stricture is. The accused applied this machine under the testicles and on top of the bladder before he knew where the stricture was, if there was one at all. I am driven to the irresistible conclusion that the use of this machine is simply bluff or charlatanry. Charlatanry is not by itself an offence known to the criminal law, but when hurt ensues to the patient, every act done in furtherance of the alleged treatment must be taken into consideration and examined to determine the questions relating to rashness or negligence. Dr. Abdul Nabi says of this machine, “No instrument as described could possibly treat stricture of the urethra.” The court accepts Dr. Abdul Nabi’s opinion on this point.

On the fifth day of the treatment the accused inserted “an iron” in the patient’s urethra. The accused tells the court that he had diagnosed a stricture. But he did not tell us the reasons why he did so, especially as the patient did not disclose a history of venereal disease or kidney trouble, nor did the accused have the urine analysed. Stricture means blockage of the urethra. The most common cause of stricture is venereal disease, but there may be other causes such as a stone. The accused decided the patient had stricture on no evidence at all. But let us assume, in accused’s favour, that the patient had stricture. Why use a metal sound without first trying a rubber sound? Accused says he used that, but I have already said that I do not believe this, because if he had, the patient would have mentioned it either on direct or cross-examination. After the accused finished with his treatment by the metal sound, the patient went home and asked for a cup of tea, and as he was drinking it he had a haemorrhage from the penis. The condition described by the patient must have been haemorrhage and nothing else, because the blood from the penis came in abundance on his underclothes and, gallabia. What happened? Dr. Abdul Nabi, who it must be remembered, saw the patient a few days later, said that that haemorrhage is consistent only with a false passage made in the urethra through the misuse of the metal sound. Both doctors who appeared for the defence agree that a haemorrhage following use of metal sounds indicates a false passage. Dr. Iskander says that it could also happen from dilation of the stricture, but in that event the blood is usually mixed with the urine. Dr. Buchle says that haemorrhage occurs immediately after instrumentation. But “immediately means anything up to one-half or one hour. The patient lives in Khartoum Dueims, and after receiving the sounds treatment, he went home, asked for a cup of tea, and. as he was drinking it had the haemorrhage. I do not think that that took more than an hour, and I have come to the conclusion that the haemorrhage was caused by the accused making a false passage. Dr. ‘Abdul Nabi saw the patient on December ‘15. and found him suffering from acute retention,, of urine and he had to be catheterised; but Dr. Abdul Nabi noticed swelling and bleeding from the penis. and he also found an infection in the urethra. the patient also had an enlarged prostate. Dr. Abdul Nabi, after catheterising, had only to cure the infection. He could do nothing to the enlarged prostate, because in his opinion the only remedy was the removal of the prostate by a surgical operation (which was later done). In Dr. Abdul Nabi’s opinion the infection was caused by the puncture of the urethra and by the use of dirty instruments. He does not think that the patient had an infection when he went first to the accused. The evidence on the question of dirty instruments comes from (1) the patients who says accused brought the iron from the cupboard” without mentioning that it was boiled or sterilised; (2) from the fact that in the opinion of the prosecution’s doctors such an operation is not feasible in an ordinary out-patients’ clinic such as that possessed by the accused, since the operation is surgical in nature, and that sterilisation precautions should be the same as in a theatre hospital; and (3) from the fact that Dr. Abdul Nabi could do nothing to the patient when he came except cure the infection. The court accepts this reasoning and decided that the sterilisation of the accused’s instruments, if indeed there was any at all, was not sufficient for the operation which he has done. More precautions should have been taken by the accused in this respect, and his conduct has fallen far short of the standard of care required.

Another point in the evidence is the question relating to the position in which the accused seated the patient when he was using sounds. It is said it was a chair. On this point I think that the seating of the patient depends on what the doctor finds more comfortable. The consensus of opinion seems to favour the lying-down position. But I do not find gross negligence on this point.

The accused is charged under Penal Code, s. 284 (i). The ingredients of this section are: (1) the doing of an act, (2) that the act was done rashly and negligently, (3) that thc act would endanger the life or safety of others, and (4) that hurt has actually ensued.

The allegation of the prosecution is that the accused did an act, viz., insert a metal sound in the patient’s urethra in a rash or negligent manner. The rashness consisted in the lack of examination of the patient in order to establish a diagnosis, and in treating him by an electric apparatus which would not have altered his condition. In so far as there was any diagnosis at all, it was a wrongful diagnosis, arrived at without proper examination of the patient. and the insertion of the metal sound itself could not have affected the patient’s illness. Even if the patient suffered from the condition described (stricture), the accused should not have started with a metal sound, but must have tried to clear the so-called stricture in the first instance by the use of rubber sounds, and when accused used the metal sounds, he did it in so negligent a manner that he perforated patient’s urethra, and caused haemorrhage.

Now there is no doubt at all that a doctor or surgeon owes to the patient a duty of care to treat him or operate on him properly, and if the doctor or surgeon fails in that duty he is liable in tort to the patient, in Powell v. Streatham Manor Nursing Home [1935] A.C. 243. the plaintiff established negligence where, following an operation for hysterectomy a nursing sister, in attempting to relieve the patient of urine, had used a rigid catheter, and passing it into the vagina instead of into the urethra had contrived to force the catheter through the suture made at the operation until it perforated the bladder.

Now, if I had been sitting as a civil judge, I would have decided that the accused was liable in negligence to the patient. But I think I am right in saying that the rashness or negligence in Penal Code, SS. 284 and 229, must be of a higher degree than that. The rashness or negligence must be of such a nature as to amount to an offence.

“ The duty of a medical man, who undertakes the treatment of a patient, is to use a fair and reasonable standard of care and competence. Before a medical man can be held criminally responsible for the death (or, as in the instant case, hurt) of his patient. the prosecution must prove all matters necessary to establish civil liability, except pecuniary loss, and in addition must prove negligence or incompetence on his part which went beyond a mere matter of compensation between citizens and showed such disregard for the life and safety of others as to amount to a crime against the State.” Ratanlal, Law of Crimes 779 (19th ed. 1956)

Gour puts it thus in 2 Penal Law of India, 1406 (6th ed. 1955)

“Persons who practise medicine or surgery may be guilty of rash or negligent acts in the performance of their duties. In this respect there is no difference between qualified surgeons and quacks. As Baylay J. said: ‘It matters not whether a man has received a medical education or not. The thing to look at is whether, in reference to the remedy he has used, and the conduct he has displayed, he has acted with a due degree of caution, or on the contrary, has acted with gross and improper rashness and want of caution. I have no hesitation in saying that, if a man be guilty of gross negligence in attending to his patient, after he has supplied a remedy, or of gross rashness in the application of it, and death (or, in the instant case, hurt) ensues in consequence, he will be liable to a conviction for manslaughter.’”

The only question arising in such cases is: “Did the accused show ‘such a gross want of care or such a gross and culpable want of skill’ in the treatment of the case as to make him criminally responsible for the death of his patient? “ For this purpose the fact that a person totally ignorant of the science of medicine or practice of surgery undertakes the treatment or the performance of an operation would be material as showing his gross ignorance, from which the jury would be justified in inferring his gross rashness in undertaking to treat or perform the operation. Such inference would be legitimate where the accused had acted from a mercenary motive and not a motive of mercy.

The question that I have to decide is: do the facts disclosed against the accused in this case fall within the above criteria? In my opinion they do, because it is incompetence to apply a useless electric apparatus on an organ which the accused has not examined, and then to perforate his urethra by the unnecessary use of a metal instrument in a negligent manner in the circumstances above described. In an Indian case the accused performed an operation with a pair of scissors on the lid of complainant's eye, and stitched the wound by ordinary thread and needle. The operation was needless and performed in a primitive way without any precaution. The complainant’s eye was damaged. The accused was held guilty under Indian Penal Code, s. 337, which is similar to our section 284 (i). See 2 Gour, Penal Law of India 1527-1528 (6th ed. 1955)

Applying the facts of this case to the principles stated above, I find that the accused’s conduct in the treatment of this patient has been so grossly negligent as to fall within the ambit of Penal Code, s. 284 (1), and I find him guilty as charged.

On the seventh day of the treatment of the patient, and while the patient was under severe pain due to the insertion of metal sounds in his urethra, the accused injected the patient with an anaesthetic and made him completely unconscious. It is admitted that the accused did not have anybody in his clinic to help him, such as an orderly or a nurse. The prosecution alleges that the administration of a complete anaesthetic (by injection) in a private clinic, without the help of a nurse, and without precautions, is a negligent act which was likely to cause injury to human life, contrary to Penal Code, s. 229

Dr. Abdul Nabi and Dr. Rashad testify that no anaesthetic should be administered in a private clinic, and to do so would endanger the patient’s life, because something may happen to the patient while the doctor is operating. Dr. Iskander would prefer to use novocaine in the urethra to relieve pain, but he would not readily use novocaine or anaesthetic, because, to use his own words, “ It is better not to anaesthetise, because the behaviour and reaction of the patient helps the doctor to know where the obstruction is. Further, if the patient is completely anocsthetised a false passage can be caused easily because the patient does not react or show pain. A doctor could always desist when the patient feels the pain.” Dr. Iskander agrees with the two prosecution

doctors that when a general anaesthetic is administered there should be a nurse or orderly present, and the doctor should stay until the patient regains consciousness, which may take an hour.

It is only Dr. Buchie who says that there is no danger whatsoever from general anaesthetic, provided it is of short duration, and that it could be done without help. I am afraid I cannot accept Dr. Buchie’s opinion on this point. I hold that giving general anaesthesia in an out-patient doctor’s clinic without help is a negligent act falling within the ambit of section 229.

The prosecution alleges that before the patient regained consciousness, the accused left the clinic and refused even to remove the patient with his son’s aid into an adjoining room. The prosecution alleges that this is a separate and distinct charge under Penal Code, S. 231, and a charge has been framed accordingly, but I think that all the series of acts which were done in anaesthetising the patient must be taken together, including the fact that the accused did not wait until the patient regained consciousness. This fact cannot be considered on its own. The court therefore acquits accused under this charge.