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Article 226 in The Constitution Of India 1949

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Rajasthan High Court
Dr T C Sadasukhi vs Medical Council Of India Ors on 22 December, 2016
                                                 1

      IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
                                   AT JAIPUR BENCH

                                            ORDER

                            (S.B. Civil Writ Petition No.822/2013)


Dr. T.C. Sadasukhi S/o late Shri N.B. Sadasukhi, aged about 61 years, r/o 3/110, Opp. Head Post
Office, Jawaharnagar, Jaipur.
                                                                                        --- Petitioner.
                                              Versus.
1. Medical Council of India, through its Secretary, Pocket 14, Sector 8, Dwarka, New Delhi.
2. The Ethics Committee of Medical Council of India, through its Secretary, Pocekt 14, Sector 8,
Dwarka, New Delhi.
3. Rajasthan Medical Council, through its Registrar, Sardar Patel Marg, 22 Godam Circle, C-
scheme, Jaipur.
4. Ajeet Singh Singhvi s/o S.C. Singhvi, aged about 77 years, R/o Sadulganj, Bikaner.
                                                                                   --- respondents.



Date of Order:                                                    December 22, 2016.

                                           PRESENT
             HON'BLE MR. JUSTICE ALOK SHARMA

Mr. Ashok Gaur, Senior Advocate with
Mr. Ajay Chaudhary, for the petitioner.
Mr. Angad Mirdha, for respondents.
Mr. Ajeet Singh Singhvi, present in person.

BY THE COURT:

Under challenge is the order dated 10-1-2013 passed by the Medical Council of India (MCI) holding the petitioner to be in contravention of clause 7.16 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (hereinafter `the Regulations of 2002') and visiting him with the 2 punishment of his name being struck off from the Indian Medical Register for a period of eighteen months. Also under challenge is the consequent order dated 16-1-2013 passed by the Rajasthan Medical Council (RMC) directing striking off the petitioner's name from the Register of Registered Medical Practitioners in Rajasthan for a period of eighteen months.

The facts of the case are that the respondent No.4 Ajeet Singh Singhvi made a complaint to RMC on 17-5-2000, alleging misconduct on the part of the petitioner and two other doctors of Sawai Man Singh Medical College and Hospital Jaipur resulting in the death of his mother Jatan Kanwar Singhvi on 28-4-2000. It was stated that the complainant's mother was admitted to the unit of Dr.S.K. Pareek, Professor and Head of the Nephrology department of the SMS Hospital in the night intervening 25 and 26-2-2000 in the Nephrology department. In the course of her treatment the patient was transferred to the unit of Dr.D.S. Mathur, Professor of Medicine. She was then referred to Dr. D.K. Jindal, and thereafter to the petitioner Dr.T.C. Sadasukhi, who performed a surgical aspiration of the Hydatid Cyst on the patient. The case of the complainant was that the procedure/ operation performed by the petitioner was without the consent either of the patient or any of her family members and it was also indicative of reckless medical negligence, 3 consequent to which his mother expired. The complainant on his allegations sought action against Dr. D.K. Jindal, Dr. D.S. Mathur and the petitioner for medical negligence.

It appears that the said complaint was considered by a three member committee of the RMC on 20-5-2000 and found no negligence on the part of the petitioner and other doctors who treated the complainant's mother. The complainant again made another complaint for the same incident of 3-4-2000 on 11-10- 2000. As the complaint was pending before the RMC for over six years, the complainant on 12-7-2007 sought transfer of the enquiry into the medical negligence alleged by him from the RMC to MCI, relatable to clause 8.7 of the Regulations of 2002. A follow up letter was also sent by the complainant to the MCI. In the meantime, the complaint to the RMC was decided by it on 26-10-2007 holding that no prima facie case was made out against the petitioner and two other doctors Dinesh Jindal and D.S. Mathur for their alleged medical negligence. The complaint was dropped.

No appeal against the RMC's order dated 26-10-2007 under clause 8.8 of the Regulations of 2002 was filed.

The MCI however appears to have seized the transfer application referable to clause 8.7 of the Regulations of 2002 as an appeal against the RMC's order dated 26-10-2007 under clause 8.8 of the Regulations of 2002. It directed the Principal, SMS Medical 4 College Jaipur to arrange for an enquiry into the matter and send the report received thereupon to its Ethics Committee. The Principal SMS Hospital Jaipur constituted a Committee of five doctors of the SMS Medical College Jaipur. Vide its report dated 30-8-2011 the Committee constituted by the Principal SMS Medical College Jaipur exonerated all doctors including the petitioner of the alleged medical negligence and held that the allegation of lack of consent by the petitioner for undertaking the surgical procedure of the late Jatan Kanwar Singhvi on 3-4-2000 appeared to be an outcome of miscommunication. The report of the enquiry dated 30-8-2011 was forwarded to the Ethics Committee of the MCI on 1-9-2011. The petitioner's case is that the Ethics Committee of the MCI in its meeting sometime between 23-8-2011 and 1-12-2011 took a decision that no further action was required against the petitioner and two other doctors for their alleged negligence in treatment of complainant's mother as none was made out. However the Ethics Committee of MCI appears to have again met on 1-12-2012 and taken up the matter afresh. On 17-7-2012, the Ethics Committee noted that one of its member would look at the issue of medical negligence in the treatment of the complainant's mother and thereafter proceed further.

No report of the in-depth study by a doctor pursuant to Ethics 5 Committee's decision on 17-7-2012 has been averred to in the reply/ affidavit of the MCI or placed on record. However the Ethics Committee on 27-10-2012 concluded that the petitioner was guilty of medical negligence for two lapses while treating Jatan Kanwar Singhvi, the mother of the complainant i.e. (i) no proper informed consent was taken, and (ii) did not carry out adequate investigation and assessment of the patient as were required, to arrive at appropriate diagnosis. In the circumstances it concluded that the petitioner was guilty of contravention of clause 7.16 of the Regulations of 2002 and deserved to be visited with a penalty of removal of his name from the register of MCI as well as that of RMC for a period of eighteen months. The Board of Governors of MCI approved the aforesaid decision on 10-12-2012. The impugned order dated 10-1-2013 was then passed by the MCI and under its direction the RMC followed up with the impugned order dated 16- 1-2013. Hence this petition.

Mr. Ashok Gaur, Senior counsel appearing with Mr. Ajay Chaudhary for the petitioner has submitted that the impugned orders dated 10-1-2013 and 16-1-2013 are unsustainable primarily for the reason of them being non speaking peremptorily and perverse for being without consideration of relevant material and therefore vitiated for non application of mind. Counsel 6 submitted that the order dated 10-1-2013 passed by the MCI does not reckon for the fact that no appeal against the order dated 26- 10-2007 passed by the RMC exonerating the petitioner for alleged medical negligence was filed by the complainant as provided for under clause 8.8 of the Regulations of 2002. Consequently the order dated 26-10-2007 passed by the RMC exonerating the petitioner had attained finality. Counsel further submitted that the MCI acted wholly without jurisdiction in treating the complainant's transfer application filed on 12-7-2007 as an appeal more so when the complaint of which transfer was sought on 12-7-2007 and 13-9- 2007 had been dismissed by RMC on 26-10-2007. Therefore all proceedings before the MCI after 26-10-2007 were without jurisdiction for the reason that the complainant's application for transfer of his complaint from RMC to MCI filed on 12-7-2007 had been rendered infructuous with the RMC's final order dated 26-10- 2007 on the complaint. Mr. Ashok Gaur submitted that even otherwise the impugned order dated 10-1-2013 and the consequent order dated 16-1-2013 both striking off the name of the petitioner from the registers of medical practitioners with the MCI and the RMC for a period of eighteen months are unsustainable and illegal, also for the reason as they seek to invoke clause 7.16 of the Regulations of 2002 which came into force on 6-4-2002, even while the alleged medical negligence attributed to the petitioner was 7 in respect of a medical procedure performed by him on the complainant's mother on 3-4-2000. It was submitted that the Regulations of 2002 were thus made retrospective when they would not be so. Mr. Ashok Gaur further submitted that while passing the impugned order dated 10-1-2013 the MCI did not consider the report dated 30-8-2011 by the committee of five doctors of SMS Medical College Jaipur constituted on the askance of the Ethics Committee of MCI itself by the Principal, SMS Hospital Jaipur. It was submitted that non consideration of the report dated 30-8-2011 prejudiced the petitioner and material beneficial to him was perfunctorily overlooked. Mr. Ashok Gaur finally submitted that from the pleadings in the writ petition, replies thereto and documents annexed it is apparent that a meeting of the Ethics Committee of MCI was held on 1-11-2011 following the report dated 30-8-2011 prepared by five doctors Committee appointed by the Principal SMS Medical College Jaipur whereupon it had found that no prima facie case of medical negligence was made out against the petitioner consequent to which the enquiry against the petitioner was liable to be dropped. This decision of the MCI appears to have been thereafter reversed without just cause and lack of jurisdiction to review as the MCI is a quasi judicial authority. Therefore the impugned orders dated 10-1-2013 and 16-1-2013 are liable to be quashed and set aside.

8

The complainant Ajeet Singh Singhvi appeared in person and submitted that the gross negligence of the petitioner in perfunctorily undertaking a medical procedure on his mother Jatan Kanwar Singhvi without requisite mandatory consent has been found by a body of doctors i.e. experts, who constituted the Ethics Committee of the MCI. He submitted that this court in the exercise of its jurisdiction under Article 226 of the Constitution of India should not interfere with the conclusions of such an expert body. It was submitted that in any event there was no consent to allow the petitioner to perform the operation/ medical procedure on complainant's mother. The reliance on the purported consent of 26- 2-2000 limited to peritoneal dialysis was completely misplaced as evidently that consent could not have been used for conducting the operation of the complainant's mother by the petitioner on 3-4- 2000--45 days hence for aspiration of the hydated cyst--a completely different and distinct procedure/ operation. Mr. Ajeet Singh Singhvi further submitted that medical negligence of the petitioner has also been found by the MCI in his failure to carry out requisite investigation for assessment of the illness of the complainant's mother and in not using an ultrasound guided procedure for the aspiration of perinephric cyst for better precision. Hence the petition be dismissed, he submitted.

9

Mr. Angad Mirdha appearing for the MCI submitted that the MCI was seized with the complaint prior to passing of the order dated 26-10-2007 by the RMC exonerating the petitioner and two other doctors of medical negligence. Further consideration of the matter by the MCI on the pending transfer application under clause 8.7 of the Regulations of 2002 was therefore in the nature of appeal relatable to clause 8.8 thereof. It was submitted that the Ethics Committee of the MCI is constituted of leading doctors and legal experts with domain knowledge of medical science and practice, and hence the decision taken by it should not be interfered with by this court while exercising its jurisdiction under Article 226 of the Constitution of India. From the consideration of material available on record, no consent of the patient or her attendant was found to have been obtained by the petitioner for carrying out the operation/ medical procedure--aspiration of a perinephric cyst by the petitioner. Moreover an appropriate ultrasound guided procedure could have been performed for the aspiration of perinephric cyst for better precision. That was not done. It was submitted that in the circumstances both for reason of absence of consent of the patient or her attendant and lack of requisite due care being taken, but rampant recklessness by the petitioner, nothing perverse can be attributed to finding the petitioner guilty of medical negligence by 10 the MCI. And that medical negligence having potentially caused the death of the patient, punishment of striking off the petitioner's name from the register of the MCI and consequently RMC for eighteen months cannot said to be shockingly disproportionate. It was submitted that therefore nothing illegal nor arbitrary can be found in the impugned orders passed by the Ethics Committee of the MCI/ and the order by RMC which flowed from it. The finding of medical negligence and punishment visited on the petitioner based thereon be therefore sustained, argued Mr. Angad Mirdha.

Heard. Considered.

A death is always traumatic. More so when it is attributable to the negligence medical or otherwise, which could have been eschewed with a degree of requisite care. But, aside of the merits of the findings of MCI on medical negligence of the petitioner the issue which has been agitated in the writ petition is with regard to the manner in which proceedings were taken against the petitioner for his alleged medical negligence. It is no doubt true that this court in the exercise of its extraordinary equitable jurisdiction under Article 226 of the Constitution of India would loath to interfere with the findings/ conclusions of an expert body such as the MCI, for such matters are not within the court's core competence/ domain knowledge. Yet the jurisdiction of this court under Article 226 of the 11 Constitution of India can be exercised to address the decision making processes resorted to by the statutory body and ascertain as to whether the procedure statutorily prescribed had been adhered to religiously and whether the conclusions/ findings of fact arrived at by the expert body are not vitiated for perversity and/ or non application of mind in overlooking relevant material on record.

I have perused the Regulations of 2002 regulating the manner in which an enquiry into a complaint for medical negligence is required to be considered by the State Medical Council and the Medical Council of India. Clauses 7.16, 8.7 and 8.8 of the Regulations of 2002 read thus:

"7.16 Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed.
8.7 Where either on a request or otherwise the Medical Council of India is informed that any complaint against a delinquent physician has not been decided by a State Medical Council within a period of six months from the date of receipt of complaint by it and further the MCI has reason to believe that there is no justified reason for not deciding the complaint within the said prescribed period, the Medical Council of India may--
(i) Impress upon the concerned State Medical Council to conclude and decide the complaint within a time bound schedule;
(ii) May decide to withdraw the said complaint pending with the 12 concerned State Medical Council straightaway or after the expiry of the period which had been stipulated by the MCI in accordance with para (i) above, to itself and refer the same to the Ethical Committee of the Council for its expeditious disposal in a period of not more than six months from the receipt of complaint in the office of the Medical Council of India.
8.8 Any person aggrieved by the decision of the State Medical Council on any complaint against a delinquent physician, shall have the right to file an appeal to the MCI within a period of 60 days from the date of receipt of the order passed by the said Medical Council:
Provided that the MCI may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, allow it to be presented within a further period of 60 days."

It is not in dispute that the complaint was first laid against the petitioner on 17-5-2000. That was considered by a three member committee of the RMC on 20-5-2000 which found no negligence on the part of the petitioner and other doctors who treated the complainant's mother. A complaint was again made on or about 11- 10-2000. It is no doubt true that the said complaint was kept pending by the RMC for several years, consequent to which the complainant was left with no option except to approach the MCI by filing a transfer application on 12-7-2007 for transfer to MCI from RMC of the complaint filed by him against the petitioner and other doctors. This was followed up by letter/ reminder dated 13-9-2007. 13 Nothing substantial appears to have been done by the MCI on aforesaid request for transfer of the complaint to itself. Then on 26- 10-2007 the RMC considering the complaint found no prima facie case of professional misconduct/ negligence against the petitioner and two other doctors leading to death of Smt. Jatan Kanwar Singhvi.

Clause 8.8 of the Regulations of 2002 provides for the manner of laying an appeal against an order of the State Medical Council on any complaint against a delinquent doctor. The appeal has to be filed within a period of sixty days from the order of the State Medical Council. No appeal appears to have been filed against RMC's order dated 26-10-2007 by the complainant in the manner as provided under clause 8.8 of the Regulations of 2002. Yet oddly, ultra vires the prescribed procedure for filing an appeal under the Regulations of 2002, MCI appears to have morphed the complainant's then infructuous application for transfer of the matter from RMC to MCI filed on 12-7-2007 and 13-9-2007, which ought to have been rendered infructuous with the passing of the order dated 26-10- 2007 by the RMC, treated it as appeal. I am of the considered view that this could not have been done by the MCI.

The Apex Court in the case of Rekha Vs. State of Tamil Nadu [(2011)5 SCC 244], albeit in a different factual context, has with 14 approval quoted the observation of Mr. Justice Douglas of the United States Supreme Court in Joint Anti-Fascist Refugee Committee v. McGrath [95 L Ed 817] as under:-

"...It is procedure that spell much of the difference between rule of law and rule of whim or caprice. Steadfast adherence to strict procedural safeguards are the main assurances that there will be equal justice under law."

The legal enunciation aforesaid is wholly relevant to the case at hand where despite no appeal having been filed against the order dated 26-10-2007 passed by the RMC exonerating the petitioner from the charge of medical negligence, the MCI has usurped jurisdiction as the appellate authority treating the evidently infructuous transfer applications as an appeal.

Be as it may, the MCI itself then required the Principal of the SMS Medical College Jaipur to constitute a Committee for submitting a report on the allegation of medical negligence against the petitioner and two other doctors. A committee of five doctors was then constituted by the Principal of the SMS Medical College Jaipur which submitted its report on 30-8-2011 which was forwarded by the Principal SMS Medical College Jaipur to the MCI on 1-9-2011. The said report dated 30-8-2011 unanimously found that neither 15 the petitioner nor the other two doctors were guilty of the alleged misconduct of medical negligence in the treatment of Smt. Jatan Kanwar Singhvi, the complainant's mother. The impugned order dated 10-1-2013 passed by the MCI holding the petitioner guilty of medical negligence and striking off his name from the register of MCI for eighteen months does not reflect any consideration of the report dated 30-8-2011 prepared by the five doctors' Committee. Quite evidently this constitutes non application of mind by the MCI and entails perversity on its part on its conclusion as to the petitioner's medical negligence.

Besides the above, the MCI appears to have exonerated the petitioner of the allegation in a meeting held between 23-8-2011 and 1-12-2011 as has been stated by the counsel for the petitioner. The denial of the said assertion by the MCI on this aspect in its reply to writ petition is rather evasive and in fact a little suspect in view of an admitted meeting of 1-11-2011 having been held. Minutes thereof are on record. A perusal/ comparison of the document recording the minutes of the meeting on 1-11-2011 as filed by the MCI vis-a-vis document the minutes of a meeting filed by the petitioner as AA-1 with his additional affidavit indicates that the two documents are substantially similar in nature, except the words to the petitioner's benefit i.e. "Now Committee resolves that no further action is required in this case and the case may be treated as closed". 16 Nothing has been stated by the MCI that the document filed by the petitioner as AA-1 with his additional affidavit is fabricated, and/ or a result of interpolation. All that has been stated is that in the minutes of 1-11-2011 a bonafide typographic mistake occurred in the second last para of the minutes recorded. In the circumstances, this court is not in a position to hold that a decision of dropping the proceedings against the petitioner for the alleged medical negligence in treating the complainant's mother Jatan Kanwar Singhvi in conducting operation/ medical procedure on 3-4-2000 was not taken.

Consequently, the impugned order dated 10-1-2013 passed by the MCI as also the consequent order dated 16-1-2013 passed by the RMC striking off name of the petitioner from the Registers of medical practitioners for a period of eighteen months are liable to be quashed and set aside. It is ordered accordingly.

The writ petition stands allowed accordingly.

(Alok Sharma), J.

arn/ 17 All corrections made in the order have been incorporated in the order being emailed.

Arun Kumar Sharma, Private Secretary.