1996 Supreme(Bom) 621

IN THE HIGH COURT OF BOMBAY
M.B. Shah, C.J. A.V. Savant, J.
Raghunath G. Raheja.... Petitioner.
Versus
The Maharashtra Medical Council and others.... Respondents.
Writ Petition No. 3720 of 1991 with Chamber Summons No. 2 of 1996, decided on 11-01-1996.
Advocates appeared :
Colin Gonsalves, for the petitioner.
S.B. Naik, for the respondent No. 1.
S.G. Surana, for the respondent No. 2.
C.J. Sawant with S.R. Singh, for respondent Nos. 3, 4 5.
Mrs. Sumedha Rao, Intervenor in-person.

Headnote:MAHARASHTRA MEDICAL COUNCIL RULES, 1967

       Rule 69-Patient-Copies of case papers and relevant documents relating to-To be made available to patient or his near relative on demand, subject to payment of usual charges.

       When a patient or his near relative demands from the Hospital or the doctor the copies of the case papers, it is necessary for the Hospital authorities and the doctors concerned to furnish copies of such case papers to the patient of his relative. In this Courts view, it would be necessary for the Medical Council to ensure that necessary directions are given to all the Hospitals and the Doctors calling upon them to furnish the copies of the case papers and all the relevant documents pertaining to the patient concerned. The hospitals and the doctors may be justified in demanding necessary charges for supplying the copies of such documents to the patient or the near relative.

       The Court, therefore, direct the first respondent Maharashtra Medical Council to issue necessary Circulars in this behalf to all the hospitals and doctors in the State of Maharashtra. This Court does not think that the hospitals or the doctors can claim any secrecy or any confidentiality in the matter of copies of the case papers relating to the patient. These must be made available to him on demand, subject to payment of usual charges. If necessary, the Medical Council may issue a press-note in this behalf giving it wide publicity in all the media.

       Rule 70-Medical Council-Executive Committee of-Whether patient can be represented by lawyer before ?

       Held; the scheme of the provisions of the 1965 Act and the 1967 Rules leaves a discretion with the Executive Committee and the Medical Council in the matter of permitting the complainant to be represented by a lawyer. In addition to this the counsel appearing for the Medical Council fairly stated that as and when a complainant makes an application for being represented by a lawyer, the Executive Committee or the Council considers such an application on its merit and does the needful in accordance with law. Accepting the statement the High Court held that while there is no prohibition on the complainant being represented by a lawyer before the Executive Committee or the Medical Council, it is not, as of rule, in every case that the complainant must be represented by a lawyer. These are matters best left to the discretion of the Executive Committee and the Medical Council.

       The record and proceedings before the Executive Committee show that the petitioner was given a full opportunity of putting forth his contentions before the Executive Committee. There is no failure to comply with the principles of natural justice. The Executive Committee has recorded the statement of the complainant on different dates, and examined the two doctors-respondent Nos. 3 and 4 at length. The members of the Executive Committee, who are themselves eminent qualified doctors have put elaborate questions to the two doctors-respondent Nos. 3 and 4. The copies of all the relevant papers were furnished to the petitioner. It is true that his prayer for some more time was rejected. It also appears that the petitioner wanted to rely upon an unsigned opinion of an unknown medical expert. When the Committee was confronted with this piece of paper without disclosing as to who the medical expert was, the Committee called upon the petitioner to disclose the name of the expert and to make him available for being questioned. However the petitioner refused to disclose the name of the expert whose unsigned opinion was tendered before the Committee. In the light of the other material before the Committee and having regard to the elaborate questions put to the petitioner and to the two doctors, the Committee decided to ignore the unsigned opinion of the unknown expert. There is no exception to this approach on the part of the Executive Committee. If the petitioner wanted to confirm the two doctors respondent Nos. 3 and 4 with the opinion of an expert in the field, it was expected of the petitioner to either produce that expert for being questioned by the Committee and by respondent Nos. 3 and 4 or, in the minimum an affidavit of the expert, along with his opinion, ought to have been placed before, the Committee so as to enable the Committee to decide on the further course to be adopted by it. Nothing of this sort was done by the petitioner and now an objection is sought to be raised before the Court that the refusal to consider the unsigned opinion of an unknown expert amounts to denial of sufficient opportunity and, therefore, failure to comply with the principles of natural justice. There is no merit in this contention of the petitioner.

       Copies of the same were made available to the petitioner during the course of the inquiry. The statements of the petitioner and the two doctors have been considered by the Committee. The record of the Committee which has been annexed to the petition shows that the Executive committee has considered the entire material that was placed before it. The grievance of the petitioner is that his written submissions and some of the answers given by the two doctors have not been taken into account while arriving at the conclusion that the operation of the petitioners wife was performed successfully. In the Courts view, the record of the Nanavati Hospital shows that proper treatment was prescribed and was given to her. There is no evidence of suppression of facts by either respondent No. 3 or respondent No. 4 or respondent No. 5 who were the concerned doctors at the Nanavati Hospital at the relevant time. The findings of the Executive Committee, a body of experts, is that there was no negligence in treating the patient. It is unfortunate that the petitioners wife has died after having been operated for a by- pass. It is not uncommon that in some cases of by-pass surgery the patient may not be able to survive for long. That does not necessarily lead to the conclusion that the doctors who performed the operation were negligent. Complications may develop after an operation takes place and unconnected factors subsequent to the by-pass surgery may be responsible for the death of a patient in a given case. On the material that was placed before the Committee, it rightly came to the conclusion that there was no negligence in treating the patient and there was no substance in the allegation made against the doctors.

       These recommendations of the Executive Committee have been accepted by the first respondent Medical Council. The petitioner was given an adequate opportunity of representing himself before the Medical Council. From the manner in which he was prosecuting the litigation, it is clear that he is a knowledgeable person. He has already filed a suit claiming heavy damages against the two doctors. His suit is pending in the High Court.

       The High Court already indicated above that there was no violation of the principles of natural justice and that the petitioner was afforded a full opportunity. Nothing has been shown to Court to conclude that any prejudice was caused to the petitioner.

       The High Court are not oblivious to the fact that the primary object of the medical profession is the alleviation of human sufferings. The cherished ideals of the medical profession imply that the possibilities of the medical practitioner extend not only to the individual, but also to the community as a whole. The High Court have no doubt in this Courts mind that a medical practitioner should merit the confidence of the patients entrusted to his care rendering to each a full measure of service and devotion. Despite the medical practitioner adhering to all these principles of medical ethics and tendering best of his assistance, in a given case, a patient may succumb on account of complications which may develop unconnected with the surgery or treatment undergone by the patient. The Court should be slow to adopt an attitude of finding fault with the medical experts, who are found to have done all that was necessary to help a patient. This would be all the more so when Court is exercising writ jurisdiction in respect of the decision unanimously arrived at by a body of experts in the field. There are no allegations of mala fides or ulterior motives attributed to any of the members of the Executive Committee or of the Medical Council. Nothing was pointed out to this Court to suggest mala fides on the part of any member of the Executive Committee or of the Medical Council.

       In the instant case of the Executive Committee has recorded its reasons while making its recommendations, which this Court has reproduced above. The recommendations refer to the facts in brief. It is clear that the entire material was considered by the Executive Committee and on consideration of the entire material, including the statements of the witnesses examined, the Executive Committee came to the conclusion that there was no negligence on the part of the doctors, nor was any doctor guilty of suppression of facts. When these recommendations were placed before the Medical Council, it decided to agree with the recommendations. This is not a case where a further inquiry will deemed necessary for issuing any charge-sheet to the medical practitioner necessitating further inquiry in accordance with Rule 66 onwards. The Medical Council decided to accept the recommendations of the Executive Committee and in doing so, it has observed as under:-

       "After going through all the papers and full consideration the Council has adopted the following resolution which is reproduced for your perusal".

       In this case where the Executive Committee recorded its reasons in brief and decided to exonerate the two doctors, respondent Nos. 3 and 4 and the Medical Council in its turn, considered the entire record and decided to adopt the resolution of the Executive Committee, it was not necessary for the Medical Council to write a detailed judgment giving elaborate reasons as is done in the Courts of law.