The Commission under the WBCE Act, 2017 can adjudicate on deficiencies in service related to medical qualifications and award compensation, separate from medical negligence claims.

JUDGMENT :

SANJAY KAROL, J.

Leave Granted.

PREAMBLE AND BACKGROUND

2. At the heart of this dispute between the appellant, who is aggrieved by the loss of his mother, and the respondent-hospital, is a question of jurisdiction. The apparent tussle is between the Commission established by the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017¹[ Hereinafter, referred to as WBCE Act, 2017] and the State Medical Council. As per the Commission²[By judgment dated 2nd February 2018 in Complaint ID: HGY/2017/000069 titled Mr. Koushik Pal v. B.M. Birla Heart Research Centre & Ors.] and the learned Single Judge³[By judgment dated 24th September 2019 in C.O.No.2050 (W) of 2018, being Dr. Ashok Kumar Giri alias Ashok Giri v. Mr. Koushik Pal & Anr.], the Commission had the authority to adjudicate the instant appellant’s complaint, alleging deficiency in service and negligence in detection/diagnosis and treatment by one Dr. Shuvo Dutta, an employee of respondent- hospital. However, vide the impugned judgment dated 15th December 2023, the learned Division Bench in MAT 1595 of 2019 overruled the said findings, holding that the Commission did not have the jurisdiction to adjudicate issues of negligence and alleged deficiency in practice. Since both these aspects are inextricably intertwined, they are required to be taken up and looked into by a specialized body. This Court is now called upon to, in this appeal under Article 136 of the Constitution of India, examine the correctness of the view taken by the Division Bench of the High Court at Calcutta.

3. The facts, which gave rise to the present appeal, are that the appellant’s mother, namely Ms. Arati Pal was admitted at respondent-hospital for treatment, when having been there for five days her situation did not improve, she was referred to the Calcutta Medical Research Institute on 07th May, 2017. Pursuant to such recommendation of transfer being made by her primary consultant Dr. Shuvo Dutta, which was apparently around 9:15 pm, the discharge summary was prepared by Dr. Tanmoy Chakraborty, who described her as being in ‘stable condition’. She was shifted to the said hospital on 8th May 2017 in the early hours of the morning around 1:45 a.m. Shortly thereafter, approximately 16 hours later, she passed away. On 12th May 2017, the appellant filed a complaint against the respondent- hospital stating as follows :

“Negligence in detection and causing delay in shifting the patient from the hospital. Not applying proper medication to the patient improper diagnosis and negligency and misguiding the patient party.”

Notice was issued that the Commission would hear the matter. Over some time, various documents were submitted including correspondence with and from the West Bengal Medical Council.

THE ORDER OF THE COMMISSION

4. By judgment and order dated 2nd February 2018, the Commission arrived at the following conclusions and findings :

First, that the lapse on part of Dr. Chakraborty, in describing the condition of the deceased as ‘stable’, which he, in his affidavit to the Commission, described as an error and “not a mere clerical mistake”.

Second, in view of the first proviso to sub-section 3 of Section 38 of the WBCE Act, 2017, they did not give any finding regarding this act of Dr. Chakraborty and whether it amounts to medical negligence.

Third, Dr. Ashok Giri who was the Head of the Non- Invasive Department at the respondent-Hospital, and Ms. Chaitali Kundu, ECG Technician, were unqualified to hold the positions and carry out the a