IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on:
20. 10.2016 ........ Petitioner
versus $~10 * % + W.P.(C) 7320/2016 RASHMI DIXIT Advocates who appeared in the case: For the... Petitioner
: For the... RESPONDENTS
: MEDICAL COUNCIL OF INDIA AND ANR........ RESPONDENTS
Mr. Jai Dehadrai and Ms.Shivangi Gupta, Advocates Mr. T.Singhdev, Mr.Tarun Verma and Ms.Michelle, Advocates CORAM:-
"HON’BLE MR JUSTICE SANJEEV SACHDEVA JUDGMENT2010.2016 SANJEEV SACHDEVA, J (ORAL) 1. The petitioner has filed the present petition seeking directions to respondent No.1- Medical Council of India to cancel the licence of respondent No.2 or to at least suspend her registration for a temporary period.
2. It is contended that the petitioner was admitted in Amar Leela Hospital & Heart Centre on 22.05.2013. A surgery was carried out by respondent No.2 and thereafter the petitioner was discharged on 25.05.2013. The condition of the petitioner deteriorated and, W.P.(C) No.7320/2016 Page 1 of 13 accordingly, the petitioner was re-admitted in the Amar Leela Hospital & Heart Centre on 25.05.2013. The petitioner was discharged on 04.06.2013 and thereafter admitted in Ram Manohar Lohia Hospital on 05.06.2013 as her condition became critical and there was no improvement. On 15.06.2013, the petitioner underwent another surgery in Ram Manohar Lohia and was subsequently discharged.
3. The petitioner, on 12.07.2013, filed a complaint with the Delhi Medical Council which complaint was decided on 17.04.2014 and the Delhi Medical Council found that no case of medical negligence was made out on the part of the doctors of Amar Leela Hospital & Heart Centre in the treatment administered to the petitioner.
4. Aggrieved there from, the petitioner filed an appeal before respondent No.1-Medical Council of India on 05.01.2016 which appeal has been disposed of by the impugned order dated 05.05.2016 whereby respondent No.1 found respondent No.2 guilty of violating regulations 1.4.1, 1.4.2 and 7.20 of the Indian Medical Council (Profession Conduct, Etiquettes and Ethics) Regulations, 2002 (hereinafter referred to „the regulations‟) which inter alia require a physician to display as suffix to their name only recognised medical degrees or such certificate/diplomas/membership/honours which confer profession knowledge or recognises any exemplary qualification/achievements and require a physician not to claim to be a specialist unless he has special qualification in that branch. W.P.(C) No.7320/2016 Page 2 of 13 5. The Medical Council of India finding respondent No.2 guilty of violating the said clauses issued a warning to respondent No.2 to be more careful in future while explaining the gravity of the case to the attendants of the patients.
6. Learned counsel for the petitioner contends that respondent No.2 has been found guilty of professional misconduct and the only punishment awarded is that of a warning whereas punishment of removal or at least suspension from the rolls should have been directed. It is contended that there is a prima facie finding of a medical negligence insofar as respondent No.2 is concerned.
7. It is further contended that this Court should examine the line of treatment given to the petitioner and return a finding that the same was not appropriate and amounted to a negligence treatment. It is further contended that Medical Council of India has not examined the issue of the medical negligence and has only gone on the issue of incorrect representation being made by respondent No.2.
8. Per contra, learned counsel for Medical Council of India, who appears on advance notice, submits that the Delhi Medical Council, consisting of experts in the field, who specifically examined the treatment administered and have returned a finding that there was no medical negligence insofar as the treatment, that was administered to the petitioner, is concerned. It is further contended that the Medical Council of India had 9. W.P.(C) No.7320/2016 Page 3 of 13 also perused all the documents available on record and the depositions submitted by the parties and after discussing the matter in detail held respondent No.2 guilty of violating the above referred clauses. It is contended that since the Medical Council of India did not disagree with the view taken by the Delhi Medical Council insofar as the treatment that was administered to the petitioner was concerned, the order does not accept the appeal of the petitioner on the said ground.
10. Learned counsel for respondent No.1 further submits that whether or not there was medical negligence would be an issue, which this Court in exercise of power under Article 226 would not be required to go into as the same would involve disputed questions of fact. Reliance is placed on the decision of the Division Bench in Kamla Devi vs. Union of India & Ors. 2015(3) AD (Delhi) 232.
11. The issues raised by the petitioner are two-fold. One is with regard to the treatment administered to the petitioner and the other is with regard to the representation of respondent No.2 that respondent No.2 was a specialist in the field of infertility when, admittedly, respondent No.2 was not.
12. Insofar as the treatment administered to the petitioner is concerned, the Delhi Medical Council in its order has recorded as under: “The Delhi Medical Council through its Executive Committee examined a complaint of Shri Gyan Deep Exit c/o, Rashmi Dixit r/o B-253, 3rd Floor, Mohan Garden, Uttam Nagar, New Delhi – 110059, alleging medical W.P.(C) No.7320/2016 Page 4 of 13 negligence on the part of Dr. Madhu Chadda and Dr. V.S. Solanki of Amar Leela Hospital, in the treatment administered to complainant’s wife Smt. Rashmi Dixit at Amar Leela Hospital, B-1/6, Janakpuri, Main Najafgarh Road, New Delhi – 110058. The Order of the Executive Committee dated 31st October, 2014 is reproduced herein-below: - “The Executive Committee of the Delhi Medical Council examined a complaint of Shri Gyan Deep Dixit c/o Rashmi Dixit r/o B-253, 3rd Floor, Mohan Garden, Uttam Nagar, New Delhi – 110059 (referred hereinafter as the complainant), alleging medical negligence on the part of Dr. Madhu Chadda and Dr. V.S. Solanki of Amar Leela Hospital, to complainant’s wife Smt. Rashmi Dixit (referred hereinafter as the patient) at Amar Leela Hospital, B-1/6, Janakpuri, Main Najafgarh Road, New Delhi – 110058 (referred hereinafter as the said Hospital). treatment administered in the The Executive Committee perused the complaint, written statement of Dr. R.P. Singh, enclosing therewith written statement of Dr. V.S. Solanki and Dr. Madhu Chadda of Amar Leela Hospital, copy of medical records of Amar Leela Hospital and other document on record. The Executive Committee observes that the patient had undergone laproscopic surgery for torsion right ovarian cyst with haemoperitoneum on 22nd May, 2013 and was discharged on 25th May, 2013. However, after one day of discharge, she complained of pain, nausea and distention. She was again brought to the said Hospital and was admitted on 26th may, 2013 with the diagnosis of W.P.(C) No.7320/2016 Page 5 of 13 this after intestinal obstruction with ascitis, sepsis and pleural effusion. She was kept on conservative management, but the patient’s condition was not improving, satisfactorily, treatment was continued upto 3rd week of June and after this patient was advised to undergo another surgery which was refused by the patient as per record of the said Hospital. The patient was discharged on request. She was subsequently admitted in RML Hospital, New Delhi-11001 and operated for diagnosis of pyoperitoneum and was discharged from the hospital on 15.06.2013. It is observed laparoscopic that surgery (heamoperitoneum), the patient can develop infection in the abdominal cavity, for which initially conservative treatment is appropriate. However, if the patient does not improve, USG guided aspiration the operative intervention is required which was done at RML Hospital. is performed, if not, that therefore, the decision of In light of the observations made herein-above, it is, the Executive the complainant’s wife Smt. Committee Rashmi Dixit was treated as per accepted professional practices as such case and prima- facie no case of medical negligence is made out on the part of doctors of Amar Leela Hospital, in the treatment administered to the complainant’s wife Smt. Rashmi Dixit. Complaint stands disposed.” 13. Perusal of the order of the Delhi Medical Council shows that the Delhi Medical Council has examined the medical records of the hospital as also the other documents on record and after examination W.P.(C) No.7320/2016 Page 6 of 13 of the same observed that after laparoscopic surgery (heamoperitoneum), the patient could develop infection in the abdominal cavity, for which initially conservative treatment is appropriate. However, if the patient does not improve, USG guided aspiration is performed, if not, the operative intervention is required which was done at Ram Manohar Lohia Hospital. The Committee, comprising of five specialist doctors, opined that the petitioner was treated as per accepted Professional Practices and prima facie, no case of medical negligence was made out on part of respondent No.2 in the treatment administered to the petitioner.
14. The Indian Medical Council in the impugned order dated 05.05.2016 has noted that the Ethics Committee of the Council investigated the matter and recorded the statements of the husband of the petitioner, the doctors of the concerned hospital including respondent No.2 and on perusal of all the documents available on record, deposition submitted by both the parties and after deliberations held respondent No.2 only guilty of violating the regulations 1.4.1, 1.4.2 and 7.20.
15. A perusal of the order also reveals that due consideration has been granted by the Indian Medical Council to the entire record and the medical treatment administered and thereafter respondent No.2 has been found guilty of only violating certain clauses of the regulations for which a strict warning has been issued to respondent No.2 and also been directed to refrain from indulging in such practices W.P.(C) No.7320/2016 Page 7 of 13 in future.
16. A perusal of the said order shows that there is due consideration of the medical treatment administered to the petitioner. After, due consideration the Medical Council of India has not found any reason to disagree with the finding of the Delhi Medical Council that there was no medical negligence or to agree with the petitioner that medical treatment administered was negligent.
17. A Division Bench of this Court in Kamla Devi (Supra) has held as under: In the aforesaid state of pleadings, we do not find “8. any error in the reasoning of the learned Single Judge that the matter indeed involved disputed questions of fact which could not have been adjudicated in writ jurisdiction and are best left to be adjudicated in appropriate jurisdiction where proper enquiry with respect thereto can be made. Whether, as a matter of fact, there was negligence on the part of the respondents or not cannot be determined in writ proceedings under Article 226 of the Constitution. These are matters of evidence which, in fact, can be resolved only on the basis of material which is produced in the course of the trial of a suit. Where a claim intrinsically depends upon proof of an act of medical negligence, such a claim cannot be determined in exercise of a writ jurisdiction. Negligence when alleged against any person is a question of fact which can be decided by oral and documentary evidence and the Court under writ jurisdiction cannot decide such questions of fact. Lord Denning in Hucks Vs. Cole (1968) 118 N.L.J.
469 observed that a charge of professional negligence against a medical man is serious and has far more serious consequences affecting his professional W.P.(C) No.7320/2016 Page 8 of 13 status and reputation and thus stands on a different footing to a charge of negligence against the driver of a motorcar. Supreme Court in Tamil Nadu Electricity Board 9. Vs. Sumathi (2000) 4 SCC543held that in matter of tortuous liability, the negligence of instrumentality or servant of State involving disputed questions fact coupled with unequivocal denial of liability, the remedy under Article 226 may not be proper unless there is negligence on the face of it. In the present case, though the son of the appellant was refused admission to AIIMS on the ground of non availability of bed but was admitted to Safdarjung Hospital across the road from AIIMS, from where he was admitted unfortunately unsuccessfully. Thus it cannot be said that there was Government Hospital situated in close vicinity can plan and manage the admission amongst themselves and merely because one refuses admission for lack of bed, would not be negligence on the face when the other admits the patient. The question whether admission if provided in AIIMS could have saved the son of the appellant is a question of fact which will have to be proved. This Court cannot make a roving inquiry in the absence of any definite material regarding negligence. treated and though It is for such reasons only that the Supreme Court 10. in Martin F. D’souza Vs. Mohd. Ishfaq (2009) 3 SCC1held that in a case of medical negligence, ordinarily the consumer forum or the criminal court should first refer the matter to a competent doctor or a committee of doctors and only when there is prima facie case of medical negligence, notice to the doctor or the hospital concerned should be issued. Mention in this context may also be made of Neelu Sarin Vs. UOI (1991) Supp. 1 SCC300where the Supreme Court turned down a petition under Article 32 of the Constitution claiming the ground of doctor’s alleged compensation on W.P.(C) No.7320/2016 Page 9 of 13 negligence for the reason that the basic facts constituting negligence were disputed and it necessitated an investigation into the disputed questions of fact and the said exercise could not be undertaken in a writ petition.
11. It cannot be lost sight of that this Court has to do justice to both the parties. Entertaining writ petitions against the State and its instrumentalities in matters of compensation for negligence even where the same entail disputed questions of fact would create a mistaken impression of doctors and hospitals as easy targets for the dissatisfied patients and against which the Supreme Court sounded caution in Indian Medical Association Vs. V.P. Shantha (1995) 6 SCC651 12. In the aforesaid facts, we are also unable to appreciate the contention of the appellant regarding constitution of a Medical Board.
13. Though the counsel for the appellant also argued that at least compensation for refusal of admission by AIIMS, under whose treatment the son of the appellant was, ought to have been granted but in the light of the defence of AIIMS that it was the appellant herself who had delayed the treatment of her son inspite of having been rendered advise with respect thereto long ago, we are of the opinion that the said aspect also needs to be adjudicated in an appropriate fact finding fora. We cannot also lose sight of the fact that treatments, for which a bed is required, cannot be meted out, if all the beds in the hospital are occupied. We are a country with vast population and scarce medical resources. The Courts would not be right in, as a matter of routine, commencing investigations into the conduct of Doctors, particularly of public hospitals, most of whom, despite various constraints, are rendering yeoman service to sea of humanity approaching such hospitals. Our Courts (see W.P.(C) No.7320/2016 Page 10 of 13 Jacob Mathew Vs. State of Punjab (2005) 6 SCC1 have adopted the test of standard of care required of professional men generally and medical practitioners in particular, as laid down in Bolam Vs. Friern Hospital Management Committee (1957) 2 All ER118and held that the standard of care is judged in the light of knowledge available at the time of the incident and not at the date of trial and that when 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 point of time on which it is suggested as should have been used. It was further held that many incidents involve a contribution from more than one person and the tendency is to blame the last identifiable element in the chain of causation, the person holding the “smoking gun”. From the pleadings, we do not find any case to commence any such investigation into the conduct of any Doctor, at least in this jurisdiction. In Dr. C.P. Sreekumar Vs. S. Ramanujan (2009) 7 SCC130it was held that too much suspicion about the negligence of attending Doctors and frequent interference by Courts would be a very dangerous proposition as it would prevent Doctors from taking decisions which could result in complications and in this situation the patient would be the ultimate sufferer. A doctor has to take snap decisions and if the medical profession is hemmed by threat of civil and criminal action, the consequence will be loss to the patients. The Supreme Court thus cautioned Courts that setting in motion law against medical profession should be done cautiously and on the basis of reasonably sure grounds.” 18. The Division Bench in Kamla Devi (Supra) has held that the remedy under Article 226 would not be a proper remedy unless there is a negligence on the face of it because the negligence involves the W.P.(C) No.7320/2016 Page 11 of 13 disputed questions of fact. Referring to the decision of the Supreme Court in Martin F.D’souza v. Mohd. Ishfaq (2009) 3 SCC1 the Division Bench has held that ordinarily in a case of medical negligence, there should be first reference to a competent doctor or a committee of doctors and only when there is a prima facie case of medical negligence should notice to the hospital or doctors be issued.
19. Even though this was in the context of Consumer Protection Act or Criminal Prosecution the same would have some relevance in the facts of the present case inasmuch as the Delhi Medical Council consisting of five specialist doctors and the Indian Medical Council also consisting specialist the doctors after considering the report of the Ethics Committee which was approved by the Executive Council, have returned a finding that there was no medical negligence in the treatment administered to the petitioner. On the contrary, there is categorical finding of the Delhi Medical Council that the treatment administered to the petitioner was appropriate. Prima facie, no case of medical negligence has been made out on the part of the doctors.
20. This court in exercise of power under Article 226 of this Court would not venture into an investigation as to whether there was any negligence or not as this would require detailed evidence and cross examination of witnesses which is possible only at a trial.
21. The Indian Medical Council has adopted the “Peer judge Peer” principle. Applying the said principle, Indian Medical Council on the basis of the report of the Ethics Committee as approved by the W.P.(C) No.7320/2016 Page 12 of 13 Executive Committee of the Indian Medical Council, has deemed it appropriate to award the punishment of strict warning to respondent No.2 with a direction to refrain from indulging in such practices in future. I find no infirmity with the view taken by the Indian Medical Council or any reason to interfere with the view taken.
22. In view of the above, I find no merit in the writ petition, The same is, accordingly, dismissed. No Costs. OCTOBER20 2016 sv SANJEEV SACHDEVA W.P.(C) No.7320/2016 Page 13 of 13