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2018 Supreme(Del) 1761
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIBHU BAKHRU, J.
Dr. Nevin Kishore - Petitioner
Versus
Medical Council of India And Ors - Respondents
W.P.(C) 6145 of 2017
Decided On : 17-07-2018
For the Petitioner: Mr. Kapil Kher and Mr. Sukhija Akbar Warsi.
For the Respondents:Mr. Vikas Singh, Sr. Advocate with Mr. T. Singhdev, Mr. Tarun Verma, Ms. Puja Sarkar, Mr. Abhijit and Ms. Manpret Kaur for Mr. Praveen Khattar with Mr. Bapi Das.
The main legal point established in the judgment is that MBBS students are required to have the necessary skill to interpret common X-Rays and advise appropriate diagnostic procedures, and failure to do so may constitute medical negligence.
Headnote:
Medical Negligence - Medical Council of India - Regulations on Graduate Medical Education, 1997 - [MBBS, Medical Negligence, Regulations on Graduate Medical Education, 1997] - The court discussed the petitioner's medical negligence in the treatment of a patient, emphasizing the requirement for MBBS students to have the necessary skills to interpret common X-Rays and advise appropriate diagnostic procedures. The court also highlighted the petitioner's failure to diagnose the patient's condition and the Ethics Committee's error in not considering the quantum of punishment separately for the petitioner and another doctor involved.
Fact of the Case:
The petitioner, a qualified doctor, was found guilty of medical negligence in the treatment of a patient. The patient's condition worsened after being treated by the petitioner, leading to a complaint filed with the Delhi Medical Council (DMC). The DMC recommended a warning and Continuing Medical Education for the petitioner, which was confirmed by the DMC. The complainant appealed to the Medical Council of India (MCI) seeking enhanced punishment for the petitioner.
Finding of the Court:
The court found no merit in the petitioner's contention of not being guilty of medical negligence, emphasizing the petitioner's failure to diagnose the patient's condition and the requirement for MBBS students to interpret common X-Rays. The court also noted the Ethics Committee's error in not considering the quantum of punishment separately for the petitioner and another doctor involved.
Issues: The issues involved the petitioner's alleged medical negligence, the Ethics Committee's decision on punishment, and the complainant's appeal for enhanced punishment.
Ratio Decidendi: The court held that the petitioner was guilty of medical negligence and emphasized the requirement for MBBS students to have the necessary skills to interpret common X-Rays. The court also noted the Ethics Committee's error in not considering the quantum of punishment separately for the petitioner and another doctor involved.
Final Decision: The petition was dismissed, and the parties were left to bear their own costs.
VIBHU BAKHRU, J.
1. The petitioner has filed the present petition, inter alia, impugning the order dated 25.05.2017 (hereafter ‘the impugned order’) passed by the Medical Council of India (hereafter ‘MCI’), whereby MCI has enhanced the punishment imposed on the petitioner by the Delhi Medical Council (hereafter ‘DMC’) and directed removal of the petitioner’s name from the State Medical Register for a period of one year.
2. The impugned order was passed in an appeal preferred by respondent no.3 (hereafter ‘the complainant’) against an order dated 08.07.2015 passed by the Delhi Medical Council (hereafter ‘DMC’).
3. The petitioner is a qualified doctor. He had completed MBBS course from AIIMS and received his post graduate and specialist training in General Medicine and Respiratory Medicine in United Kingdom. The petitioner was registered with DMC in 2002. At the material time, the petitioner was working at the Max Super Speciality Hospital, Saket.
3.1 The allegation against the petitioner relates to the medical negligence of the treatment of one Mr Kshitij Mathur (the Patient). The Patient was under the treatment of one Dr Hemant Tiwari of Fortis Hospital since September 2009. Dr Tiwari had prescribed PFT Test, which was done and thereafter, Dr Tiwari diagnosed that the Patient was suffering from Bronchial Asthma. The Patient was a minor at the material time and his father had consulted Dr Tiwari, as the Patient was suffering from chronic cough. The medicines prescribed by Dr Tiwari did not alleviate the condition of the Patient and he continued to suffer.
3.2 The Patient’s problem got aggravated in January 2013. Since the medicines prescribed by Dr Tiwari had not resulted in any effective relief, the Patient’s father (the complainant) took him to consult the petitioner. The petitioner examined the Patient in his clinic on 18.02.2013 and his diagnosis was that the Patient was suffering from seasonal allergy, wheezing, no fever and cough. The petitioner then prescribed medicines which were to be administered for seven days and advised the patient to revisit him on 25.02.2013.
3.3 It is stated that on 25.02.2013, the condition of Kshitij Mathur got worsened and, therefore, the complainant (Kshitij Mathur’s father) once again got in touch with the petitioner who advised him to meet him at the Max Hospital, Saket, New Delhi. The petitioner once again examined the Patient on 25.02.2013 and advised that Chest X-Ray to be done. The X-Ray of the chest was done immediately. Although, the petitioner states that only the wet film was shown to him; there is no dispute that the said X-Ray was shown to the petitioner. The complainant had also stated that the X-Ray done at Max Hospital was examined by the petitioner.
3.4 After examining the X-Ray, the petitioner had informed the complainant that the chest was absolutely clear and the problem was on account of acute allergy. The petitioner diagnosed the problem as cold cough, no fever, no asthma, no wheeze. On the basis of the aforesaid diagnosis, the petitioner prescribed the following medicines: (i) Foracort 200-2 puffs, twice a day; (ii) Omnacotrli 10 mg-1 tab, three times a day; and (iii) Zedex syrup - two table spoon, twice a day. The complainant stated that after taking the said medicines, there was a slight improvement in his condition for a couple of days but the same was not appreciable.
3.5. On 02.03.2013, the Patient had problem in breathing and could not sleep during the night. There was swelling on his face and legs and his condition had worsened.
3.6 On 03.03.2013 - which was a Sunday – the Patient’s mother rang up the petitioner at about 09:00 a.m. and informed him of the Patient’s condition. However, the complainant states that the petitioner refused to tender any advice and stated that he did not take any calls on a Sunday.
3.7 On 04.03.2013, the complainant took his son to Dr Deepak Talwar, who after examining the report and the X-ray done at Max Hospital, Saket advised that a
