Yesterday I was again in the high court. The accused was a doctor. The charges were causing a woman to miscarry and also causing death by 'rash and negligent act'. (under the sections 303 and 298 of the Penal Code).
When the summons were served for this case on me a few weeks ago I was puzzled as I did not expect this case to go for a high court trial. Had the cause of death been directly related to abortion I would not have surprised at all. According to my opinion the woman had died from 'heart failure due to chronic rheumatic heart disease'.
This unfortunate woman was a mother suffered from chronic rheumatic heart disease for many years. She had undergone mitral valvectomy about 25 years ago and was on regular benzathine penicillin. It was reported that she was 6-8 weeks pregnant and went to an abortionist to get an abortion done. She was admitted to a base hospital with severe dyspnoea and transferred to NHSL, where she died after 2 days. The doctors suspected pulmonary thrombo-embolism and sepsis.
Postmortem revealed enlarged heart with fibrosed, thickened, and distorted mitral valve, which was severely stenosed. The commissures were fused. The chordae tendineae were shortened and thickened. The pericardium was firmly attached to the epicardium.
Lungs were odematous.
The pubis was unshaven. Vulva and vagina were normal with no evidence of interference. The uterus was 8-10 weeks size and hypertrophied. The os was open. There was no evidence of perforation, interference or infection. Inside the cavity was 'products of conception' (confirmed by later histology. Presence of ‘chorionic villi’ is the ultimate proof of pregnancy, of course, excluding cases where identifiable foetal parts are present.). There were no identifiable foetal parts.
I was asked the following question by the state counsel in the 'examination in chief'.
1. Was there an abortion?
Yes, there was evidence of abortion. The uterus was enlarged. Os was opened. There was products of conception.
2. Was it an 'induced abortion' or 'spontaneous abortion'?
I cannot definitely say as there were no signs of interference such as vaginal injuries (abrasions, bruises, lacerations and perforations) or cervical tears or uterine perforations, which are the hall mark of induced abortion.
3. Does it mean that it was not due to an 'induced abortion'?
No I did not say that. Absence of evidence of interference does not necessarily rule out 'induced abortion'. A qualified skill full person can perform an abortion without producing any signs of interference.
4. How did she die?
Heart failure due to chronic rheumatic heart disease. (Of course I explained to the court what rheumatic fever is, how it causes heart disease and how heart disease causes death of a person at the end.)
5. Had the abortion, whether it was 'induced' or not, contributed to the cause of death?
It might have. As is well-known that pregnancy itself, let alone abortion or child delivery, can aggravate the existing heart disease.
Then the Honourable judge asked the defence to cross examine. The defence counsel asked me following questions.
1. You said that there were no signs of interference to suggest that it was an 'induced abortion'. Is that correct?
Yes.
2. Then this should be a spontaneous abortion. Do you agree?
No. As I said before absence of interference does not necessarily mean that it was a spontaneous abortion.
3. But you did not see any evidence of interference did you?
Yes.
4. You said that the death was due to heart disease and not abortion. Is that correct?
Yes.
5. Even if there was no abortion the heart disease she had could have killed her. Do you agree.
6. Yes.
The accused doctor was there listening to my evidence. I do not know what happened to the cause as I left the court as soon as I was released.
Note:
Although the expert witness appeared on behalf the prosecution it does not mean that they should try to win the case for them. They are actually regarded as witness of the court. Their duty is to assist the court by giving honest and impartial, scientific opinion based on the facts of the case. They cannot express opinions out of the blue. Every opinion has to be based on solid scientific criteria. If the court demands they should be prepared to enumerate them. In one of the famous cases the court defines the role of the experts in following terms. "They should provide the court the scientific criteria, on which they based their opinion. Then the court, if it wants, would be able to arrive at their own opinion just as the experts did".
In abortion cases it is not easy for the prosecution to prove it beyond reasonable doubt. They may have to prove, depending on the case, the following facts before the judge is able to convict the accused.
1. Even if an abortion has been induced it was done not to save the life of the mother.
2. The abortion the woman had suffered was an induced abortion.
3. The foetus was live when the said surgical procedure was done. e.g. evacuation of a product of conception of a missed abortion or incomplete abortion is not an offence as the woman was not with a 'living' child.
Priyanjith Perera
16 November 2012
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