HON’BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No. 3047 OF 2023

O R D E R:

This Writ Petition was filed being aggrieved by the proceedings dated 23.03.2022 of the 2^nd respondent in returning the Appeal dated 18-03-2021 filed by petitioner under Regulation 8.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The petitioner contended that rejection of Appeal as ‘not maintainable’ is illegal, arbitrary, and contrary to law.

2. Petitioner contends that the 4^th respondent is running a hospital by name Taraporewalla Nursing Home located at East Maredpally, Secunderabad. He stated that his deceased wife was under the medical care of the 4th respondent from the second month of her pregnancy. Estimated date of delivery, as given by the 4^th respondent was 25.08.2013. On 10-08-2013, petitioner’s wife visited the 4^th respondent nursing home for a general check-up along with test reports as advised earlier. After examining the reports, the 4th respondent diagnosed the petitioner’s wife with Cholestatic Jaundice and directed her to get admitted to the nursing home, which she did on 10-08-2013 at 8:00 PM.

Despite knowledge of the possibility of Post-Partum Hemorrhage (PPH), a severe complication involving uncontrollable bleeding post childbirth, the 4^th respondent conducted surgery, without taking precautions, due to the said medical negligence, petitioner’s wife died on 11-08-2013 at 11:45 AM, although the baby survived. Following the incident, petitioner lodged a police complaint on 04-09-2013 at Tukaramgate Police Station, which led to registration of FIR No. 117 of 2013 under Section 304-A IPC against the 4^th respondent. A charge sheet was filed and the case was registered as C.C. No. 2407 of 2019 on the file of the Hon'ble XXII Chief Metropolitan Magistrate at Secunderabad. Subsequently, petitioner filed a complaint with the Medical Council of India on 29-08-2013 requesting disciplinary action against the 4^th respondent which referred the complaint to the 3^rd respondent, i.e. the State Medical Council (Telangana State Medical Council), which, in turn, forwarded the case to the Ethics Committee. The Ethics Committee, after inquiry, observed that the allegations of negligence and deficiency in service made by the petitioner were not unreasonable and recommended a warning to the 4^th respondent to be more cautious in observing medical procedures and protocols. Based on the said findings, the 3rd respondent – State Medical Council passed order dated 03-02-2021 approving the recommendations through the Executive Committee, thereby issuing a warning to the 4^th respondent.

Petitioner, aggrieved by the said order dated

03-02-2021, preferred Appeal on 18-03-2021 to the 2^nd respondent – National Medical Commission which returned the appeal via Proceedings dated 23-03-2022, citing that the Appeal was not maintainable under Section 30(3) of the National Medical Commission Act, 2019 (for short, ‘the 2019 Act’). Despite this, petitioner re-submitted the Appeal on 16-08-2022, requesting reconsideration. The Appeal was again returned through Proceedings dated 03-10-2022, stating that reconsideration could not be acceded to. According to petitioner, the ground for rejection that a non-medical practitioner cannot file an appeal under Section 30(3) is misconceived. He contends that Section 30(3) says that ‘A Medical practitioner or professional who is aggrieved by any action taken by a State Medical Council under sub-section (2) may prefer an appeal to the Ethics and Medical Registration Board against such action’. Petitioner argued that this provision does not bar Appeals by non-medical persons and is, in fact, applicable only to medical practitioners. Thus, applying Section 30(3) to his case is erroneous.

It is stated, petitioner is entitled to file an Appeal under Regulation 8.8 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. The said Regulation states: ‘Any pers