B. M. Birla Heart Research Centre vs State Of West Bengal & Ors
2023 Latest Caselaw 7807 Cal

Calcutta High Court (Appellete Side)

B. M. Birla Heart Research Centre vs State Of West Bengal & Ors on 15 December, 2023

Author: Arijit Banerjee

Bench: Arijit Banerjee

            IN THE HIGH COURT AT CALCUTTA
                CIVIL APPELLATE JURISDICTION
                         APPELLATE SIDE

                           MAT 1595 of 2019

                    B. M. Birla Heart Research Centre
                                   -Vs.-
                       State of West Bengal & Ors.



Before:             The Hon'ble Justice Arijit Banerjee
                                  &
                    The Hon'ble Justice Apurba Sinha Ray


For the Appellant           : Mr. Aniruddha Chatterjee, Adv.
                              Mr. Shibaji Kumar Das, Adv.
                              Ms. Rupsa Sreemani, Adv.
                              Mr. R. Ahmed Khan, Adv.

For the State               : Mr. Sirsanya Bandopadhyay, Jr. Standing
                              Counsel,
                              Mr. Arka K. Nag, Adv.

For the Respondent No. 2      Mr. Avik Ghatak, Adv.

For the Respondent No. 4 Mr. Biswaroop Bhattacharya, Adv.

Mr. Vivekananda Bose, Adv.

Ms. M. Ghosh, Adv.

Mr. R. Pal, Adv.

For the National Medical      Mr. Indranil Roy, Adv.
Commission.                   Mr. S. Kr. Roy, Adv.

Judgment On                 : 15.12.2023





Apurba Sinha Ray, J. :-


Factual Basis:-

1. The seeds of the present appeal were laid when a bereaved son lodged

a complaint before West Bengal Clinical Establishment Regulatory

Commission ('the Commission' in short hereinafter) through email on

12.05.2017 alleging untimely death of his mother due to :-

"Negligency 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 patient party".

2. The Commission took steps and after hearing the Service Provider, viz

BM Birla Heart Research Centre (BMBHRC in short hereinafter) through its

Medical Superintendant and obtaining 3(three) affidavits from the concerned

Superintendant, Dr. Sankar Sengupta, Dr. Ashok Giri, the in-charge of non-

invasive procedure, and Mr. Manish Surekha, the Head Finance, B.M. Birla

Heart Research Institute and also considering the relevant reports from

Medical Council of India, West Bengal State Medical Council and other

materials on record, came to the conclusion that though the Commission

refrained from dealing with the alleged medical negligence part of the matter,

it found serious lack and deficiency in patient care service from the side of

the BMBHRC, and accordingly, it directed the latter institute to pay

compensation to the tune of Rs. 20,00,000/- (Rupees Twenty Lakhs) to the

bereaved family.

3. The said judgment and order of the Commission was challenged by

the BMBHRC in a writ proceeding u/Art. 226 of the Constitution before a

Single Judge of this Court, and after hearing the parties and also taking into

consideration of the materials on record including certain reports which

were filed during pendency of the said proceedings pursuant to the

directions of the Learned Single Judge, the Learned Single Judge dismissed

the said writ application holding that the conclusion arrived at by the

Commission was correct and justified.

4. Being aggrieved and dissatisfied with the said judgment and order

dated 24.09.2019, the present appeal was preferred from the side of

BMBHRC on the ground, inter alia, that the Learned Single Judge did not

consider the case of the petitioner as well as the materials on record properly

and thereby came to a wrong finding.

Submission from the Bar:

Appellant:

5. Mr. Aniruddha Chatterjee, learned Advocate, appearing for the

Appellant - BMBHRC argued that though the complaint was lodged alleging

'deficiency in service' and 'negligent treatment' against the Appellant and Dr.

Shuvo Dutta, the Commission went on to adjudicate the complaint in

violation of provision of section 38(iii) of the West Bengal Clinical

Establishment (Registration, Regulation and Transparency) Act, 2017 ('The

Act, 2017' in short hereinafter) which prohibits the Commission to

adjudicate any issue of medical negligence.

5.1 Though the Commission held that Dr. Giri was not competent enough

to conduct and interpret the data of Echocardiography, the replies of the

M.C.I pursuant to queries under Right to Information Act, reveal that Post

Graduate Medical Education Regulation, 2000 is silent about such query.

On the other hand, West Bengal Medical Council has, replied that even

para-medical professionals are eligible to perform Echocardiography.

5.2 The learned counsel has also argued that Learned Single Judge called

for a report from the M.C.I as to whether the educational qualification of Dr.

Giri permitted him to perform the procedures on the patient as done by him

in the instant case. Pursuant to such direction, the Law Officer of M.C.I

sent a letter dated 25.6.2019 stating "that the Appellant has obtained MD

Physician Qualification from St. Petersburg Medical Academy, Russian

Federation and he has been granted registration to practice medicine after

qualifying the Screening Test (Foreign Medical Graduate Examination) as

provided for in Section 13 (4A) of the Indian Medical Council Act, 1956". In

Paragraph No. 3 of the said report, it has been mentioned that Echo-

cardiogram requires conduct of test and clinical interpretation of the data. In

so far as the conduct of test is concerned it can be done by a Medical

Graduate or even a paramedic (with training), but the minimum qualification

required for the clinical interpretation of data of echo-cardiogram is MD

(Medicine). Therefore, those with super specialist qualification of DM

(Cardiology) are better placed to clinically interpret the data of echo-

cardiogram, which is absolutely contrary to the statements made in the last

paragraph of the report which says that Dr. Ashok Kumar Giri was not

entitled to "perform and interpret" the data of Echo-cardiogram. The said

letter is also contrary to the reply given by the Medical Council of India to

the application under Right to Information Act, 2005. The said Law Officer

does not have any authority to decide the qualification of Dr. Ashok Kumar

Giri to perform echocardiogram in the absence of any codified law and/or

rules and regulations.

5.3 The appellant's learned counsel has pointed out that M.B.B.S

Curriculum included cardiology in which echocardiography is also taught,

and therefore, the Commission erred in holding that Dr. Giri being an

M.B.B.S cannot conduct and interpret echocardiography. There is no rule or

regulation which prohibits a medical graduate to perform echocardiogram.

The decision reported at (2012) 5 SCC 242 ( Vijay Singh vs. State of Uttar

Pradesh & others) lays down that in a civilized society, punishment not

prescribed under the statutory rules cannot be imposed. Moreover, in (1989)

3 SCC 448 (Pyare Lal Sharma vs. Managing Directors & others) it was

held that the alleged act must constitute misconduct and penal under the

law prevailing at the time of its commission and punishment cannot be

inflicted if the act becomes penal subsequently. Learned counsel of the

appellant has submitted that though the Commission is not entitled to deal

with the issue of medical negligence, it held that Dr. Ashok Kumar Giri was

not entitled to conduct or interpret the data from echocardiogram report

which in turn led to medical negligence. It is ridiculous to say that a doctor

having M.B.B.S degree has right to treat the patient but does not have any

right to interpret the result of echocardiogram conducted by him. There is

nothing on record to show that the interpretation was wrong or for the

alleged interpretation any harm was caused to the patient.

5.4 As regards the report of M.C.I filed pursuant to the order of Learned

Single Judge, the learned Advocate for the appellant has argued that the

author of the report submitted by the Medical Council of India is utterly

incompetent person to say anything with regard to the technical part of the

situation and further to opine that an MBBS doctor was barred under the

law to perform echocardiogram. To be fair to the report, the report does not

say that an MBBS doctor was in any way barred by law to conduct or

interpret an echocardiogram report. It only says that MD and DM would be

"better" placed to interpret. According to the Learned Counsel of the

Appellant, it seems to be the personal opinion of the author, who has

absolutely no experience in medical field. Learned Counsel hastened to add

that in answer to a RTI query, both the Medical Council of India as well as

West Bengal Medical Council have unequivocally stated that even para

medics are entitled to carry out echocardiogram.

5.5. According to the Learned Counsel it was vaguely pointed out by the

lawyer of the Medical Council of India that the curriculum in respect of

MBBS course does not involve cardiology. But one of the main segments in

the MBBS course is cardiology and to substantiate that the Appellant is

annexing the "Harrison's Principles of Internal Medicine" for reference of this

Court. Even the Appellant wishes to annex the question paper relating to

cardiology which appears in the final exam of the MBBS course.

5.5.1. The basis of an MBBS degree is that a doctor having such degree

has knowledge with respect to both medicine as well as surgery. It is

completely not understandable that why such an argument was made by the

Medical Council of India, who are the custodian of the medical field. It is the

Medical Council of India which formulates and regulates the curriculum

which doctors have to undergo rigorously in order to obtain a degree in

MBBS.

5.5.2. It is also submitted that if the impugned order is allowed to stand,

the life of Dr. Ashok Kumar Giri will be completely jeopardized and the

Appellant Clinical Establishment will also be penalized for the same. Dr.

Ashok Kumar Giri is, on the one hand, compelled by law to treat any patient

who comes to him and if he does so he may be hauled up on the pretext that

he does not have the right to even interpret an echocardiogram. This would

lead to a lot of confusion in the mind of medical professionals and patient

care providers.

5.6. So far as the issue of Ms. Chaitali Kundu is concerned, it is argued

that analogy may be drawn from the fact that both the Medical Council of

India as well as West Bengal Medical Council as stated earlier have

unequivocally stated that even para medics are entitled to carry out

echocardiogram. Chaitali Kundu is privileged to do the Echo-Cardiography

in the IPD & OPD under the supervision of competent, expert and

experienced Doctors in the field as in emergency situations the Echo-

Cardiography Technician is privileged to perform Echo-Screening at Bedside

with portable machine in presence of competent, expert and experienced

Doctors to show the monitoring and measurement findings from the

machine and record those as provisional report subject to clinical co-relation

which she had exactly done in the instant case in hand under the

supervision of Dr. Ashok Kumar Giri & Dr.Shuvo Dutta which was duly

stated in the Affidavit affirmed by Dr. Ashok Kumar Giri and filed before the

said Commission on 26th October, 2017 but the Commission did not take

into consideration the same.

5.6.1. It is further stated that at that material point of time in the year

2011 when Chaitali Kundu was appointed as an Echo-Cardiography

Technician in the said Clinical Establishment, there was no law in the field

governing such aspect which will be evident from the statements made in

the paragraphs hereinbefore. It is trite law that no Act, Rules, Laws, Bye

Laws, Circular & Notifications can have any retrospective effect and is

always prospective in nature until and unless specifically stated therein

which squarely applies in the case in hand. It is further trite law and a basic

principle of natural justice that no one can be penalized on the ground of a

conduct which was not penal on the day it was committed.

5.7. Learned Counsel of the Appellant has drawn the attention of the

Court to the printed form of Discharge Summary and submitted that the

Commission was oblivious to the fact that in the Discharge Form there are

two counters for signatures as the discharge of the patient can be done

either by the MO/SHO or by the Consultant Doctor. There exists no medical

requirement or any law for signing of discharge form by both the authorities

at the same time and hence no question of ratification by consultant doctor

arises. Moreover from the records, it is evident that the patient was

discharged at late night and it is absolutely an impractical thought to have

the consultant doctor present at the hospital for signing the Discharge

Certificate of the patient when she has already been referred by him to

C.M.R.I at 9.30 pm.

5.8. Learned Counsel for the appellant has further argued that the

decision making process which was adopted by the said Commission while

arriving at the said judgment was grossly erroneous since during the process

no expert opinion of any Cardiologist was taken by the Commission in

coming to the decision as regards the manner of treatment of the patient or

whether or not any irrational and unethical trade practice was resorted to.

Dr. Shuvo Dutta is a qualified and competent Cardiologist but surprisingly

the said Commission did not even think it fit and proper in directing Dr.

Shuvo Dutta to file an affidavit before the said Commission to explain the

entire state of affairs particularly when he was the best person to do so and

was also obliged to file an affidavit as he was categorically named in the

main complaint by the respondent no. 4. The said Commission has arrived

at a conclusion relying upon the affidavits filed by three persons namely Dr.

Sankar Sengupta, Dr. Ashok Kumar Giri & Mr. Manish Surekha but found

out the guilt of deficiency in patient care service and irrational and unethical

trade practices as against six persons which included the above named three

person along with Ms. Chaitali Kundu, Dr. Tanmoy Chakraborty and Dr.

Shuvo Dutta respectively but no affidavit was called for from them which is

absolutely illegal and arbitrary in consideration of the fact that they were the

best persons to explain the incriminating circumstances as against them.

Dr. Shuvo Dutta and Dr. Tanmoy Chakraborty were peculiarly left

untouched by the said Commission though the said Establishment was

penalized by the impugned judgment mainly based on their acts and actions

which by itself is in flagrant violation of the principles of natural justice and

fair play.

5.9. Learned Counsel has also pointed out that the Commission in order to

properly adjudicate the issue ought to have a member who was a

Cardiologist for proper understanding of the case and to come at a correct

decision as to whether three Echo-Cardiogram findings indeed had any

relation to the death of the patient or whether the difference of the Echo-

Cardiogram findings may vary for that patient for that level or more with the

stated duration. Even no expert opinion from an independent cardiologist

was sought for by the Commission. The said Commission also lost sight of

the fact that the Echo-Cardiogram findings and Screening Report dated 7 th

May, 2017 which was allegedly done by Ms. Chaitali Kundu could not have

any bearing on the death of the patient and more particularly the patient

party could not have been aggrieved by the same particularly when it was

only for the purpose of internal findings of the Primary Consulting Doctor.

5.10. Learned Counsel has further argued that the Commission has come

to a finding that each one of the members having medical background quite

actively participated in the deliberation and played a very crucial role in the

decision making process but astonishingly the findings of each of the

members and the reasons for the same have not been disclosed which by

itself makes the judgment stereotyped and cryptic in nature. The award of a

sum of Rs. 20 lakhs as compensation to the complainant is too harsh an

amount in consideration of the fact that the service recipient during her

lifetime was suitably employed in the Kolkata Police and the future

prospects of her legal heirs and successors pursuant to her death are

suitably protected and no prejudice would be caused to them, but, on the

other hand, the said award tarnishes the name of the Clinical Establishment

in the society and their goodwill and reputation are seriously prejudiced and

hampered. Learned counsel for the appellant has submitted that the

judgments relied upon by the respondent no. 4 herein reported at AIR 1980

SC 1896 (Gujrat Steel Tubes Limited & Ors. Vs. Gujrat Steel Tubes

Mazdoor Sabha & Ors.) & 2023 (1) SCC 634 (Shyam Sel And Power

Limited & Anr. Vs. Shyam Steel Industries Limited) have no applicability

in the facts and circumstances of the case. However, Learned Counsel for

the appellant has placed reliance upon the case law reported at 1957 (2) All

ELR Page 118, (Bolam v. Friern Hospital Management Committee),

(1997) 1 SCC Page 9, (R. Thiruvirkolam Vs. Presiding Officer And

Another), (2012) 5 SCC Page 242, (Vijay Singh Vs. State of Uttar

Pradesh And Others), (1989) 3 SCC Page 448 para 21 (Pyare Lal Sharma

Vs. Managing Director & Ors).

6. Learned Counsel Mr. Biswaroop Bhattacharyya appearing for the

respondent No. 4 has submitted that neither the judgment and order of the

Hon'ble Single Judge, nor that of the Regulatory Commission warrants any

interdiction by this Court in the present appeal. According to him, the

decision rendered by a statutory body (being the Commission) created by the

Act of 2017 was challenged and the same was upheld by the Hon'ble Single

Judge of this Court, and therefore, there is no scope for this Division Bench

to interfere with the impugned judgment. In support of his contention the

learned counsel has referred to the case law reported at AIR 1980 SC 1896

(Gujarat Steel Tubes Ltd. and Ors. Vs. Gujarat Steel Tubes Mazdoor

Sabha and Ors.).

6.1. Learned Counsel for the respondent no. 4 has categorically submitted

that a wrong order can be quashed only if it is vitiated by the fundamental

flaws of gross miscarriage of justice, absence of legal evidence, perverse

misreading of facts, serious errors of law on the face of the order, and

jurisdictional failure. In the instant appeal neither the order is so wrong nor

so perverse that the appeal even needs to be entertained.

6.2. Learned counsel has stated that though it was argued by the learned

advocate of the appellant that the judgment in Gujarat Steel Tubes Ltd.

(supra) has been held to be per incuriam in the decision reported at (1997) 1

SCC 9 para 11 (R. Thiruvirkolam Vs. Presiding Officer and another), it is

argued that the ratio settled by the Hon'ble Supreme Court in Gujarat Steel

Tubes Ltd. and Ors. (Supra) does not deal with the issue of judicial review

in R. Thiruvirkolam (supra). On the other hand the said case deals with a

point completely different from the point settled in Gujarat Steel Tubes Ltd.

(supra) and that has been passed by a larger bench than the bench

constituted in R. Thiruvirkolam (supra). According to the Learned Counsel

the reliance placed upon R. Thiruvirkolam (supra) case by the appellant is

completely misplaced.

6.3. Learned Counsel for the respondent has submitted that neither Dr.

Ashoke Giri nor Ms. Chaitali Kundu was eligible to conduct the test of

echocardiography and interpret the data of such test to make a report. Both

of them conducted the test and interpreted the data to make a report

without any supervision or guidance of a specialized medical practitioner

and the same was not done in any emergency but in their usual course of

practice. It transpires from the materials on record that Ms. Chaitali Kundu

has passed the Higher Secondary Examination with a Commerce

background and therefore, she did not pursue Chemistry, Physics and

Biology in her Higher Secondary course. Thereafter, she has pursued an

Electro-Cardiography Technique Training programme from Society for

School of Medical Technology, Indian Mirror Street, Kolkata. She used to

practice as an Echocardiography Technician without having requisite

qualification for the same which amounts to irrational and unethical trade

practice. Learned counsel of the respondent no. 4 has pointed out that Dr.

Giri has completed MD. Physician Degree from St. Petersburg Medical

Academy, Russia in 2001, which is equivalent to MBBS Degree in India. So

far as Dr. Giri's Post Graduate Diploma in Clinical Cardiology obtained from

Indira Gandhi National Open University is concerned, it is found that the

same does not confer any additional specialization on Dr. Giri since under

the provisions of Post Graduate Medical Education Regulation, 2000, neither

the Post Graduate Diploma in clinical Cardiography is an recognized medical

course nor is IGNOU a recognized institution to confer such diploma upon

Dr. Giri. Thus, according to the respondent no. 4, Dr. Giri, for all practical

purposes, is to be considered as a MBBS Doctor.

6.4. Learned Counsel submits that a medical practitioner who has only an

MBBS or an equivalent degree is not supposed to practice as a specialist,

that is to say, he is not supposed to undertake any procedure, whether

invasive on non-invasive, which falls in a domain of a specialty or a special

branch of medicine and such procedures are only to be undertaken by the

medical practitioner who have obtained additional qualifications

commensurate with the specialty under which the procedure falls.

Echocardiography is not taught in MBBS or in equivalent courses and is

only taught in MD (Medicine), MD (General Medicine), MD (pediatrics) and

MS (Respiratory Medicine). Echocardiography, being a non-invasive

diagnostic procedure falling in the specialized domain of cardiology can be

performed by a cardiologist that is a person who has obtained DM

(Cardiology) degree upon having priorly obtained MD degree in Medicine,

General Medicine or Pediatrics and Respiratory Medicines.

6.5. Learned Counsel of the respondent no. 4 has argued that under Section

27, the right to practice of a medical practitioner should be according to his

qualifications. It is clear from the admission of Dr. Giri that he performed

ECG in his due course of practice and not to attend to any emergency.

6.6. The Commission has rightly considered and decided the complaint

made by the respondent no. 4 including the issue of the said Dr. Giri

claiming to be a specialist without having any recognized special

qualification concerned.

6.7. Learned Counsel has drawn the attention of this court to certain

factual issues in the following manner:-

"The mother of the respondent no. 4 was admitted in the Hospital on 3rd May, 2017 at about 11:20 PM and at the time of admission, the chief complaints and duration were: (1) Chest Pain for 3 days. (2) Shortness of breathing for 3 days, and (3) Fever for 2 days. From the clinical notes of the Hospital it will transpire that on 5th May, 2017, when the situation went critical, the appellant hospital has informed Dr. T.K. Bhoumik for the first time on 5th May, 2017. Even after repeated calls, the clinical establishment failed and/or neglected to arrange for Dr. Bhoumik or any other medical practitioner in his stead to examine the patient for more than 48 hours from being referred to the said doctor. The patient was kept in such condition without being afforded the course of action advised for her. It is only at 3 PM on 7th May, 2017, that the clinical establishment arranged for Dr. Bhowmick to see the patient and only after the condition of the patient started to deteriorate on the same day. The respondent was advised to transfer the patient to multi-specialty hospital for treatment of the fever of unknown origin. It is further pertinent to note that the final observations recorded with reference to the patient shows that until the fever is cured, the required and/or advised procedures for curing her cardiac ailment could not be carried out. The clinical establishment kept the patient admitted for five long days knowing fully well that it is not well equipped to treat the immediate ailment of the patient and further that the procedures which could be carried out on her at the said establishment could only be done after her immediate aliment, viz, the fever, which the petitioner establishment is not equipped to cure, is first treated. This lack of treatment of the immediate ailment of the patient ultimately resulted in her death within less than 24 hours from being discharged from the appellant hospital and being admitted in Calcutta Medical Research Institute."

6.8. He has further argued that the Learned Counsel for the appellant

submitted that from 9:15 PM on 7th May 2017 for a period of almost 2

hours, the son and the other relatives of the patient, wasted valuable and

precious time in taking a decision whether she would be transferred to a

Multi Specialty Hospital and during that period the patient was continuously

observed by the Doctors of the said Clinical establishment. Such contention

of the appellant is false and is denied.

6.8.1. Learned Counsel submitted that the decision to transfer the patient

to a multispecialty hospital was taken by Dr. Shuvo Dutta at 9:30 PM. as

will transpire from the records. The answering respondent and his relatives,

on being informed of such decision, readily agreed to the same. However, the

staff of the appellant establishment made the answering respondent to do

the rounds of various desks of the establishment on different pretexts and

ultimately upon all dues with respect to the patient being cleared, issued the

due clearance slip to the answering respondent at about 11:33 PM on 7th

May, 2017 (Pg-325 of the Paper book). Even after that, the establishment

kept on delaying the discharge of the patient unreasonably and finally

discharged her in the early hours of 8th May, 2017, and the patient was

then admitted to CMRI hospital within minutes of her discharge from the

petitioner establishment. Due to the inordinate and unreasonable delay on

the part of the clinical establishment in discharging the patient, she could

not be admitted to CMRI in time and was admitted to CMRI at only 2 AM on

8th May, 2017.

6.8.2. CMRI Hospital is situated right beside the appellant establishment.

It takes only a minute or so to travel from the gate of the establishment to

CMRI Hospital. It is clear from the due clearance slip issued at about 11:33

PM on 7 May 2017 that the respondent No. 4 had already taken a decision

to shift his mother to CMRI Hospital and has as such cleared the dues.

There was no reason for the respondent no. 4 to wait from 11.33 PM of 7th

May 2017 till 2:00 AM 8th May 2017 for getting his mother admitted to

CMRI Hospital upon clearance of all dues at BM Birla. This only shows that

the Respondent No. 4 had promptly acted on the advice of the doctors at

Petitioner establishment to transfer his mother to CMRI Hospital but it is the

delay caused by the petitioner establishment to discharge the patient, which

resulted in drastic deterioration of her condition. Valuable time was lost in

attending to the conditions which set in during the time of such delay and

ultimately resulted in the death of the patient.

6.9. According to the learned counsel of the respondent no. 4 the

appellant establishment has concocted the discharge summary issued in

respect of the patient since deceased. He has also contended that on one

hand the appellant is saying that the patient was in a critical condition at

the time of her admission but when she was discharged from the clinical

establishment, in the discharge certificate, described how the patient, who

was admitted in a critical condition, was treated, stabilized and then

discharged in a stable condition. The petitioner has miserably failed to

clarify before the Commission the reason for such anomalous and

contradictory stance. It has only been submitted by the appellant that due to

a typographical error, the words "instable condition" has gone down as "in a

stable condition". Such explanation, apart from being a glaring example of

afterthought on the part of the petitioner, does not also explain why the

words, "With conservative therapy the condition of the patient was stabilized

and in due course patient was mobilized progressively..." were used in the

earlier part of the same sentence in the discharge certificate. It is further

stated that an explanation in writing was already obtained by the

Commission from Dr. Tanmoy Chakraborty regarding the observation made

in the discharge certificate. Under such circumstances, it was not obligatory

for the Commission to again call upon Dr. Chakraborty for making the same

statements again. Not calling upon Dr. Chakraborty for explaining the said

discrepancies in the discharge certificate and instead relying on his written

explanation has not caused any prejudice to the petitioner, nor has it

resulted in violation of the Principles of Natural Justice and Fair Play.

National Medical Commission:-

7. Learned counsel for National Medical Commission has submitted before

this court that the Learned Single Judge has very rightly and pertinently

pointed out the status of a specialist so far as the medical science is

concerned. In this regard the learned counsel has referred to paragraph 10

of the judgment passed by the Learned Single Judge. For the purpose of

proper understanding he has read out the said paragraph before us. The

said paragraph is quoted hereinbelow:-

"Learned Advocate appearing for the fourth respondent has relied upon Sections 23, 26, 27 of the Indian Medical Council Act, 1956 and submitted that, Dr. Ashok Giri was not supposed to practice as a specialist. He was not supposed to undertake a procedure for Echocardiography. He did not have the additional qualification commensurate with the speciality that he claimed. Echocardiography is not taught in M.B.B.S. or equivalent courses. It is only taught in MD (Medicine), MD (General Medicine), MD (Pediatrics) and MD (Respiratory Medicine). According to him, ECG can be performed by a cardiologist, that is, a person who has a degree in DM (Cardiology) after having requisite MD degree. He has submitted that, Dr. Giri claims to have served as in charge of Non-invasive Department (Investigations Services) of the petitioner which includes echocardiogram. It means that, Dr. Giri consciously undertook echocardiography without there being a medical emergency to do so. According to him, Dr. Giri is not a specialist although he was employed by the petitioner as a specialist and the petitioner allowed Dr. Giri to act as a specialist in a field which, Dr. Giri could not have acted as a specialist."

Reply by the Appellant:-

8. In reply, the Learned Counsel for the appellant has submitted that

Gujarat Steel Tubes Ltd. & Ors. (supra) cited by the respondent no. 4 has

been overruled. The impugned order of the Learned Single Judge is a

perverse one. If the evidence on record is not considered, that is perversity.

He has further submitted that BM Birla is a Heart Research Institute and it

was not for the purpose of treating patient having fever. Dr. Shuvo Dutta

was the Cardiologist but he was not asked to attend hearing before the

Commission. He was the Attending Cardiologist but no complaint was lodged

against him. Commission has no jurisdiction to deal with medical negligence

issues which are barred under Sections 37 and 38 of the Act, 2017. The

Learned Single Judge did not consider the same. The ratio decidendi in

Jacob Mathew's case is squarely applicable in this case. He has further

submitted that there is no law that a person from commerce background

cannot perform ECG. Learned Counsel has further stated that the appellant

is, in fact not allowed to have adjudication either in Commission or in the

Court of the Learned Single Judge. Dr. Giri can perform ECG. Dr. Shuvo

interpreted the result of ECG whereas Ms. Chaitali Kundu only operated the

ECG Machine. In MBBS, Cardiology was taught, and therefore Dr. Giri can

treat for Cardiology. If he can treat cardiology, then he can also interpret the

ECG. Moreover, an MD doctor is better placed to interpret does not mean

that Dr. Giri cannot interpret.

Court's view:-

9. The loss of the mother of a human being cannot be compensated by

any quantum of money. The loss is irreparable and cannot be filled up. It is

also true that man is not immortal and therefore every human being has to

leave the earthly world at a certain point of time. Undoubtedly, the demise

which is untimely becomes painful and unbearable to near and dear ones of

the deceased.

10. Another aspect of human lives is that though the physical body of a

particular human being is the closest and dearest of the person concerned

but sometimes the said person may be unaware what is going on inside

his/her body. Even the relatives may be unaware about the condition of

his/her near and dear ones. Mysteriously, we may not know at certain point

what is going on inside our bodies.

11. With this prelude we would like to enter into the merits of this case

and before that we would like to consider the history of the patient, Arati Pal

with which she was admitted in the BM Birla Heart Research Institute on 3 rd

May, 2017. As per records and also the affidavit of Dr. Sankar Sengupta, the

medical superintendent of BM Birla Heart Research Institute, it is found that

"Arati Pal was admitted in BM Birla Heart Research Institute on 3rd May,

2017 at CCU with H/O of chest pain along with SOB (shortness of

breathing) and fever for three days. She was a known patient of

hypertension and was having rheumatoid arthritis along with DMARD and

suspected to have ACS (N Stemi)."

12. After her death the probable cause of death was mentioned as "ACS,

Sepsis, multi organ failure with background of Rheumatoid arthritis and

immuno compromised state due to DMARD". Therefore, from the admission

records of Arati Pal in BM Birla Heart Research Institute it was found that

she was admitted with chest pain having fever and also shortness of

breathing.

13. From the affidavit of Dr. Sankar Sengupta the medical superintendent

of BM Birla Heart Research Institute, as was quoted in the order of the

Commission, it is found that her echo was normal and TROP/T cardiac

enzymes were critically elevated. She was planned to undergo CAG next day

for recurrent chest pain on maximal medical therapy but due to fever it was

deferred. She was treated for ACS and also covered with anti-biotics in view

of suspected infection because of fever and elevated total count. Urine and

blood cultures were sent to identify the source if any and imperical antibiotic

started till the culture reports came. During course of the treatment the

patient was seen by the physician for fever on 7th May, 2017 from CMRI and

necessary advise was followed. On 7th May, 2017 around 7:45 pm the

patient was progressively deteriorating and during the next few hours

developed hypotension and was started on ionotropes and vasopressors for

the same. The patient was attended to by Dr. Subho Dutta, the primary

consultant at 9:15 pm on 7th May, 2017 and considering the patient's

condition and also in view of possibility of sepsis causing hypotension, a

decision to transfer the patient to a multi-specialty hospital was made after

discussing with the patient's relatives. The patient was transferred to CMRI

at 1:59 am on 8th May, 2017 for further management. In CMRI the patient

was received in a state of shock with hypotension and was attended

immediately by the primary consultant. Treatment of shock and other organ

support in the form of ventilation was continued. Due to worsening renal

function she was planned for SLED also but the same could not be done due

to hypotension. However due to progressive organ dysfunction she could not

be resuscitated and she succumbed to her illness. The patient expired on 8 th

May, 2017 at 6:15 hours.

14. From the findings of the Commission, which were also affirmed by the

Learned Single Judge, it is revealed that the Commission has come to the

conclusion that death of Arati Pal was due to incompetent patient care

service of BMBHRC, more particularly for Dr. Giri, and Ms. Kundu who

failed to conduct proper ECG of the patient and to interpret the same

properly. As if the death of Arati Pal, according to the Commission, was due

to cardiac problem. In essence, it was the conclusion of the Commission that

the BMBHRC had failed to make proper diagnosis of cardiac problem due to

incompetence of the aforesaid doctor and Ms. Kundu. Had the ECG of the

patient been done and interpreted by the BMBHRC' through a competent

doctor and technician, such untimely death of Arati Pal might have been

averted.

15. But such clear cut conclusion may be inappropriate in the realm of

medical science. The probable cause of death has been mentioned as "ACS,

Sepsis, Multi-organ failure with background of Rheumatoid arthritis and

immuno-compromised state due to DMARD".

16. For the purpose of proper understanding and adjudication, it is very

much pertinent to know the terms like 'ACS' 'Sepsis', 'immuno-compromised

state due to DMARD'

i) ACS - Acute Coronary Syndrome - any condition brought on by a sudden

reduction or blockage of blood flow to heart. Acute Coronary syndrome is

most often caused by plaque or clot formation in the heart's arteries.

Coronary Angiogram - This test helps heart care providers see blockages in

the heart arteries. The coronary angiography is considered as the gold

standard in the assessment of the anatomy and physiology of the heart.

(Harrison's Principles of Internal Medicine, 21st Edition, Volume II, McGraw

Hill pg 1859).

Echo-Cardiogram - This test uses sound waves to create pictures of beating

heart. It shows how blood flows through the heart and heart valves. An

echocardiogram can help to determine whether the heart is pumping

correctly. Common causes of Plasma Troponin Level Elevation may also

include Sepsis and/or shock. (The ECG Made Easy, 9th Edition, John

Hampton & Jonna Hampton ELSEVIER, Pg-124).

II) Sepsis - Sepsis is defined as a life-threatening organ dysfunction caused

by a dysregulated host response to infection. Common clinical features

include signs of infection, with organ dysfunction, plus altered mentation,

tachypnea, hypotension, hepatic, renal or hematologic dysfunction. The

criteria in 2016 (sepsis-3) is suspected (or documented) infection and an

acute increase in > 2 sepsis related organ failure assessment (SOFA) points.

(Harrison's Principles of Internal Medicine, 21st Edition, Volume II, McGraw

Hill pg 2241). Sepsis is the body's extreme response to an infection. It is a

life threatening medical emergency. Sepsis happens when an infection

already we have triggers a chain reaction throughout our body. Most cases

of sepsis start before a patient goes to a hospital. So far as the causes of

sepsis are concerned, it is found that when germs get into a person's body,

they can cause an infection. If that infection is not stopped, it can cause

sepsis. Bacterial infection causes most cases of Sepsis. Sepsis can also be a

result of other infection, such as, Covid-19 or influenza or fungal infections.

Most people who develop sepsis have at least one underlying medical

condition, such as chronic lung disease or a weakened immune system. The

early symptoms of sepsis may include, inter alia,:-

a) A high heart rate or weak pulse

b) Extreme pain or discomfort

c) Fever, shivering or feeling very cold

d) Shortness of breath

a) In medical science, A single diagnostic test for sepsis does not yet exist,

and so doctors and healthcare professionals use a combination of tests

and worrisome clinical signs, which include the following:-

The presence of an infection, very low blood pressure and high rate,

increased breathing rate.

b) Severe sepsis occurs when sepsis causes the patient's organs to

malfunction. This is usually because of low blood pressure, a result of

inflammation throughout the body of the patient.

c) Septic shock is the last and most severe stage of sepsis. It has been

defined as a subset of sepsis in which underlying circulatory and

cellular/metabolic abnormalities lead to substantially increased mortality

risk. Common clinical features include signs of infection plus altered

mentation, oliguria, cool peripheries, hyperlactemia. Common risk factors

for increased risk of infection include chronic diseases and immune

suppression. (Harrison's Principles of Internal Medicine, 21st Edition,

Volume II, McGraw Hill pg 2241). Sepsis occurs when the patient's immuno

system has an extreme reaction to an infection. The infection throughout the

body of the patient can cause dangerously low blood pressure. The patient

needs immediate treatment if he has septic shock. Treatment may include

anti-biotic, oxygen and other medication. Septic shock is a serious medical

condition that can occur when an infection in our body causes extremely low

blood pressure and organ failure due to sepsis. Septic shock is life

threatening and requires immediate medical treatment. It is the most severe

stage of sepsis. The difference between septic shock and sepsis is that while

sepsis is life threatening and it happens when the patient's immune system

overreacts to an infection, septic shock is the last stage of sepsis and is

defined by extremely low blood pressure, despite lots of IV (intravenous)

fluid.

d) The signs and symptoms of septic shock which is the third stage of

sepsis can include (i) fast heart rate, (ii) fever or hypothermia (low body

temperature) shaking or chills, hyperventilation (rapid breathing), shortness

of breath etc.

e) When sepsis turns to septic shock the patient may experience

additional symptoms. This includes very low blood pressure,

lightheadedness, little or no urine output or heart palpitation, skin rash,

cool and pale limbs etc. The patient's septic shock risk increases if the

patient has a weakened immune system which increases the patient's

risk for sepsis.

17. DMARDS:- Disease-modifying antirheumatic Drugs (DMARDs) are a

class of drugs suggested for the treatment of inflammatory arthritides,

including rheumatoid arthritis (RA), psoriatic arthritis (P&A) and ankylosing

spondylitis (AS). They can also be used in the treatment or other disorders.

DMARDS are so named because of their ability to slow or prevent structural

progression of Rheumatoid Arthiritis. Most of such drugs have unfavourable

toxicity profile. (Harrison's Principles of Internal Medicine, 21st Edition,

Volume II, McGraw Hill pg 2761)

DMARDS are immunosuppressive and immuno modulatory agents.

The terms immunosuppressive denotes, (as per Stedman's Medical

Dictionary for the Health Professions and Nursing, Sixth Edition,

Wolters Kluwer, Lippincott Williams & Wilkins) prevention or interference

with the development of immunologic response, may reflect natural immuno

logic unresponsiveness (tolerance), may be artificially induced by chemical,

biologic or physical agents or may be caused by diseases.

Immuno-compromised state due to DMARD signifies a weakened

immune system of the patient.

18. Sustained low efficiency dialysis (SLED) is an increasingly popular

form of renal replacement therapy for patients with renal failure in the

intensive care unit. Advantages of SLED are efficient clearance of small

solutes, good hemodynamic tolerability, flexible treatment schedules, and

reduced clots.

Hypotension on low blood pressure - it means that the pressure of blood

circulating around the body is lower than normal or lower than expected.

Severe hypotension can be caused by sudden loss of blood (Shock), severe

infection, heart attack or severe allergic reaction (Anaphylaxis).

19. From the very beginning of her admission at BMHRC the concerned

doctors suspected that the patient Arati Pal had been suffering from

infection. It is further found from the record that there was no remission

from fever in spite of medication. Coronary Angiogram could not be done due

to fever. It is also found that the patient developed hypotension and for

which she was on ionotropes and vasopressors. It was further found from

the record that on 7th May, 2017 at about 9:15 pm, considering the patient's

condition and also in view of possibility of sepsis causing hypotension the

decision to transfer the patient to CMRI was taken. In CMRI the patient was

received in a state of shock with hypotension. Treatment of shock and other

organ support in the form of ventilation was continued. It is further reported

that due to worsening renal function she was planned for SLED but the

same could not be performed as she was suffering from hypotension (low

blood pressure). It is further reported that due to progressive organ

dysfunction she could not be resuscitated and ultimately the patient

succumbed to her illness.

20. The above factual aspects coupled with medical condition of the

patient suggest that the cause of her death may have been sepsis which

culminated into septic shock. It is clear from the medical reports that several

symptoms of sepsis arising out of infection were present in the patient, since

though the patient Arati Pal was a known patient for hypertension she

developed hypotension which might be the outcome of the severe sepsis. It

should not be lost sight of that the patient had Rheumatoid Arthritis and

was on Disease-modifying-antirheumatic Drugs causing a weakened

immune system. Therefore, the possibility cannot be ruled out that the

patient died due to septic shock causing malfunction of her different organs

and as the severe sepsis could not be managed and controlled properly it

might have caused the death of the patient. Therefore, the questions

whether or not the doctors or the clinical establishment were at fault in

diagnosis, are issues of medical negligence which the Commission could not

have adjudicated and the Commission had rightly refused to enter into that

arena.

21. But from the above discussion, we can say that the Commission's

conclusion that as there was a failure on the part of Dr. Giri and Ms.

Chaitali Kundu, the victim could not get proper treatment or her untimely

death could have been averted, cannot be said to be correct. In fact, there is

no material on record showing that there was any nexus between the ECG

report done by Dr. Giri assisted by Ms. Chaitali Kundu and the death of the

patient Arati Pal. As the material on record is not at all sufficient to hold

that it is only because of the ECG report as aforesaid, the nature and extent

of patient's disease could not be unearthed, and such failure became fatal

for Arati Pal, we have strong reservation to say that the BMHRC was

responsible for such death on that score only. In short the reason given by

the Commission in this regard is not tenable since, even if the correct ECG

report was available, that might not have disclosed the extent of infection

and sepsis found in the body of the patient.

22. But it does not mean that BMHRC can employ incompetent doctor and

staff for the patient's care service. It is clear from the materials on record

that it was alleged that Dr. Giri was not properly qualified in interpreting the

ECG report and it was further alleged that Ms. Chaitali Kundu was also not

qualified to act as ECG technician.

23. In Chapter 7 of Indian Medical Council (Professional Conduct,

Etiquette and Ethics) Regulations, 2002, clause 7.20 has specified one of

the professional misconducts of the doctors which is as follows:-

"7.20. - A physician shall not claim to be a specialist

unless he has a special qualification in the branch".

23.1. Under chapter 8 of the said Regulations, procedures for disciplinary

action and punishment have been prescribed. In 8.2 Regulation it has been

laid down as hereunder:-

"It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deem necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/Societies/Bodies."

8.6 of the regulations prescribed hereunder:-

"Professional incompetence shall be judged by peer group as per guidelines prescribed by the Medical Council of India."

23.2. Therefore, from the above it is found that if a physician falsely

claims to be a specialist he is guilty of misconduct as laid down in 7.20

under chapter 7 of the Regulations, 2002. But to declare a physician to be

guilty of professional misconduct under 7.20 as aforesaid, the disciplinary

action is required to be taken by the concerned Medical Council and after

giving reasonable opportunity of hearing to such medical practitioner, if the

said medical council finds that he is guilty of committing professional

misconduct, the said Council shall punish the delinquent by way of

removing his name from the State Register permanently or for a limited

period. Therefore, the allegation against Dr. Giri is such that he has

committed professional misconduct under Regulation 7.20 and for which a

specific provision has been made under Indian Medical Council (Professional

Conduct, Etiquette and Ethics), Regulations, 2002 for determining whether

he has committed any professional misconduct or not. The Commission has

therefore no authority to observe that Dr. Ashok Giri was not qualified to

conduct as well as interpret the ECG report. It may happen that if the State

Medical Council initiates a disciplinary proceeding regarding his alleged

professional misconduct and Dr. Giri is able to prove before the disciplinary

committee of the State Medical Council that he is entitled to practice

cardiology and is further entitled to conduct ECG and interpret the report,

he may be exonerated from the said allegation. When specific provisions

have been made to enquire about the alleged professional misconduct by a

specialised body, the Commission cannot enter into the arena of that

specialised body which has been rightly kept reserved for the medical

professionals. It is further found from Regulation 8.6 that such

professional's incompetence can only be judged by a peer group as per

guidelines prescribed by Medical Council of India. Therefore, there are

specific provisions for dealing with such alleged professional misconduct of a

medical practitioner. Therefore, unless the State Medical Council or National

Medical Commission declares that the concerned doctor is not qualified to

perform ECG, the Commission cannot hold Dr. Giri as unqualified. In fact,

Commission has no authority to declare a medical practitioner as

unqualified or incompetent for lack of requisite qualifications as the same is

beyond its authority.

23.3. Therefore, if the alleged incompetence of Dr. Giri is not found by the

concerned State Medical Council it would be preposterous to say at this

stage that BM Birla Heart Research Institute has engaged incompetent and

unqualified doctor and is guilty of deficiency in patient's care service.

Therefore, unless the Medical Council of the West Bengal declares through

specific and appropriate disciplinary action that Dr. Giri is an unqualified

doctor the Commissioner has no authority to declare Dr. Giri as unqualified

to perform ECG or to interpret the findings thereof.

23.4. The materials on record also show that the question whether Indira

Gandhi National Open University can offer post-graduate diploma in clinical

cardiology is under consideration of the Hon'ble High Court at Delhi. It is

also found that cardiovascular disorder including non-invasive cardiology,

echocardiography is within the syllabus of MBBS course as per Harrison's

Principles of Internal Medicine. However, without going into the said

question the Commission ought to have relegated the matter to the State

Medical Council or National Medical Commission for consideration. If the

State Medical Council or the National Medical Commission found that Dr.

Giri is unqualified then BM Birla Heart Research Institute could be held to

be responsible for deficient patient care service for engaging unqualified

doctor. But if the State Medical Council or the National Medical Council did

not find Dr. Giri as unqualified then the charges against BM Birla Heart

Research Institute for providing deficient patient care service would not have

stood as regards appointment of Dr. Giri.

24. Learned Counsel for the appellant argued that MD Cardiologist is

better placed to interpret ECG Report does not mean Dr. Giri, being an

MBBS, cannot interpret. It appears from the record that pursuant to an

application dated 17.07.2017, the Medical Council of India by its reply dated

31.08.2017 has intimated the applicant regarding the relevant information

sought.

25. The information sought was "what are the norms of minimum

qualification to perform echocardiography".

26. To such query, the Medical Council of India has reported that the

post-graduate Medical Education Regulation, 2000 is silent with regard

to such query.

27. It is also found from the letter dated 25.06.2019 written by the Law

Officer of the Board of Governors in supersession of Medical Council of India

that "the procedure of echocardiogram requires conduct of tests and clinical

interpretation of the data. In so far as the conduct of test is concerned it can

be done by Medical Graduate or a para-medic (with training). It may be

respectfully submitted that the minimum qualification required for the

clinical interpretation of data of echocardiogram is MD (Medicine).

Knowledge of cardiology is imparted in MD (Medicine) Course. Furthermore,

a person with MD (General Medicine), MD (Paediatrics) and MD (Respiratory

Medicine) are entitled to pursue DM (Cardiology). Therefore, those with

super-specialist qualification of DM (Cardiology) qualification are better

placed to clinically interpret the data of echocardiogram".

28. From the above two documents it prima facie appears that Medical

Council of India by its letter dated 31.08.2017 did not say what are the

minimum qualification to perform echocardiography. The second document

that is letter dated 25.06.2019 issued by the Law Officer, Board of Governor

in supersession of Medical Council of India has clearly mentioned that a

Medical Graduate or a para-medic (with training) can conduct the eco-

cardiogram test. It is further stated in the said letter that those with super-

specialist qualification such as MD or DM in the respective fields as

aforesaid are better placed to clinically interpret the data of eco-cardiogram.

Therefore, the said letter dated 25.06.2019 does not specifically state that a

medical graduate cannot clinically interpret the data of eco-cardiogram. It

only says that the persons having qualifications with MD or DM in the

respective fields as aforesaid are better placed to clinically interpret the data

of eco-cardiogram.

28.1. Now at this juncture a relevant question arises as to what would be

the proper standard and qualification of a doctor to interpret the data of eco-

cardiogram? Will it be for the highest degree holder in the relevant field or

for a mere medical graduate? It has been decided in many a cases that the

benchmark to determine negligence in law is the 'reasonable standard'. The

'reasonable standard' is fixed by law of averages. It is an average between

the highest and the lowest standards. However, it is stated that while

dealing with cases of professional negligence, the established jurisprudence

is to benchmark by taking the lowest standard of skill and competence a

professional is expected to possess. The judgment of Jacob Mathew's case

reiterates this principle of benchmarking professional's standard by referring

to Michael Hyde and Associates Vs. JD Williams and Co. Ltd., a

renowned English Court judgment.

28.2. The celebrated observation of MacNair J in Bolam Vs. Frien

Hospital Management Committee ( 1957) 1 WLR 582 is worth noting in

this regard:-

"Where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the rise of being found negligent. it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art"

29. In another English judgment reported at (2001) PNLR 233 CA, Learned

Judge Sedley observed that "where a profession embraces a range of views

as to what is acceptable standard of conduct, the competence of the

defendant is to be judged by the lowest standard that would be regarded as

acceptable". Therefore, from the above discussion it transpires that our

Hon'ble Supreme Court has been pleased to accept the English view

regarding the standard of doctors by which their competence can be

assessed. In this case though there is no direct evidence that due to alleged

wrong report of ECG the patient Arati Pal succumbed to her illness, it prima

facie appears that Dr. Giri holding an equivalent degree of MBBS of Indian

jurisdiction has at least minimum standard of competence to conduct and

interpret the ECG report, until it is reversed by an appropriate disciplinary

proceeding as stated above.

29.1. It also appears from the syllabus for First Professional MBBS in

Physiology including Biophysics of West Bengal University of Health Science

that in MBBS Physiology is taught and further cardio-vascular system is

also taught. It appears from such syllabus that under cardio-vascular

system ECG, leads principles of normal recording, normal waves and

internal and their interpretations, electrical axis of the heart including left

and right axis deviation, clinical uses of ECG are also taught. The syllabus of

MBBS course under All India Institute of Medical Sciences, Delhi has also

disclosed that physiology is taught and therein cardio-vascular system of

human body is also taught. Under the chapter cardio-vascular system ECG

is also taught. It also prima facie found that Anatomy, Physiology,

Cardiology etc. were taught in the relevant course of St Petersburg State

Medical University. Therefore, from the above it cannot be said at this stage,

that Dr. Giri does not have minimum standard or qualification for

conducting and interpreting the data of eco-cardiogram until the same is

held otherwise by the State Medical Council of West Bengal or the National

Medical Commission.

30. So far as Ms. Chaitali Kundu is concerned it is true that she has

graduated from commerce stream but at that time there was no law that a

commerce graduate cannot become eco-cardiography technician. However,

needless to mention that there is no material that the relevant ECG report

by Dr. Giri assisted by Ms. Chaitali Kundu had any nexus with the death of

the patient Arati Pal. Therefore, as the letter dated 25.06.2019 shows that a

para-medic (with training) can conduct ECG, I think Ms. Chaitali Kundu

cannot be said to have conducted ECG unauthorisedly.

31. But as regards the allegation that Dr. Tanmoy Chakraborty had

described an ill and unmobilized patient as a patient with stable physical

condition, it appears to be a mistake on the part of Dr. Tanmoy

Chakraborty. It appears from the record that Dr. Tanmoy Chakraborty had

himself intimated the patient party about the deteriorating condition of the

patient at the relevant point of time but in spite of that he had made

comments in the discharge summary that the patient was mobilised and

stabilised and was being discharged in a stable condition. The said

comment does not conform to the notes in the medical records and papers

which are maintained in the said clinical establishment. There is no reason

to make such written comment beyond medical records. Now the question

may arise that for each and every wrong of a doctor engaged in a hospital, is

the clinical establishment responsible? Each case has to be considered on

its own merits and also on the basis of the factual matrix of the case. In this

case it appears that Dr. Tanmoy Chakraborty went beyond the medical

records and wrote as per his whims and caprice. Be it mentioned that soon

after the said incident or a few days or months thereafter Dr. Tanmoy

Chakraborty had left BM Birla Heart Research Institute for reasons best

known to him. There may be ample reasons for such resignation or

departure from BM Birla Heart Research Institute. But no reasonable and

prudent man can make such irresponsible comment. This is a serious

lacuna on the part of the Dr. Tanmoy Chakraborty alone.

32. The failure to submit utilization report for IV fluids cannot be viewed

as serious lacuna on the part of the clinical establishment since the nature

of disease suffered by the patient at the relevant point of time required lots

of inter venus fluid to be instilled into the body of the patient.

33. It is true that the Commission can determine its own procedure for

adjudicating the allegations under the Act, 2017. But that does not mean

that the Commission can ignore the fundamental principles of judicial

procedure in adjudicating the same. From the judgement of the

Commission we found several discrepancies which were required to be

addressed by the Learned Single Judge. First, apart from the complaint sent

through email on 12.05.2017 no other written complaint is found in the

paper book. Even at the cost of repetition we are quoting the complaint on

the basis of which the relevant case being Complaint id; HGY/2017/000069

was initiated before the Commission:-

"Negligency 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 patient party".

34. But in the body of judgment it is found in paragraph 5 wherein the

Hon'ble Commission has observed as hereunder:-

"During the hearing, the complainant elaborated his case of deficiency in service, negligence in diagnosis and consequent failure of providing proper treatment and delay in referring the patient to a multi specialty hospital against the Clinical Establishment, B.M. Birla and presented the factual background of the case and claimed sufficient compensation in accordance with law."

35. Now the relevant question may arise how and under what procedure a

complainant can be allowed to elaborate his case of deficiency in service,

negligence in diagnosis etc. when the process of adjudication has already

started. There is no document nor any statement of the complainant

showing how he elaborated his complaint during the pendency of the

procedure. It is needless to mention that when a complaint was lodged there

is little scope under any law that authorises the complainant to elaborate his

initial complaint at the time of hearing of the case. If we go through the

complaint as lodged before the Commission by way of sending email we shall

find that the complainant alleges;

Firstly, there was negligence in detection of the diseases;

Secondly, there was a delay in shifting the patient from the hospital;

Thirdly, proper medication was not given to the patient;

Fourthly, improper diagnosis and negligence.

Fifthly, misguiding the patient party.

36. The negligence in detection of diseases and the allegation of not giving

proper medicines to the patient and further improper diagnosis of the

diseases are all matters or issues of medical negligence. Therefore, the said

issues cannot be adjudicated by the Commission. There was no sufficient

material on record to hold, that delay, if any, was caused only because of the

clinical establishment and not from the side of the patient party.

Furthermore, there is no material to show how the patient party was

misguided by the clinical establishment.

36.1. The observation of the Hon'ble Commission that the discharge

summary does not contain the signature of the doctor who acted as primary

consultant of the patient and therefore the said failure on the part of the BM

Birla Heart Research Institute also comes under the purview of deficient

patient care service, is not correct. It appears that the Hon'ble Commission

did not take into consideration the practical purposes for which the

signatures of two authorised persons are required. It is obvious that at the

dead of night one of such persons instead of two is likely to be available in

the hospital or clinical establishment to discharge the patient for any

emergency. However, no prejudice was caused to the patient party for not

having the signature of Dr. Shuvo Dutta as primary consultant on the

relevant portion of the discharge summary.

37. However, from the discussion it appears that the Commission has a

duty under the law to see that unqualified doctors or technicians are not

engaged in the clinical establishment but this duty of the Commission has to

be discharged very cautiously and circumspectively.

38. It is also found from page 5 of the Commission's judgment that one

screening report dated May 7, 2017 at 8.05 pm of the service recipient was

made over to the Commission by Dr. Shubo Dutta. It is also noted therein

that the decision to transfer the service recipient was taken on May 7, 2017

at around 9:15 pm by her primary consultant Dr. Shuvo Dutta. The

Commission found that the said eco-screening was done with a portable

machine and the findings were recorded and interpreted with impression by

one Ms. Chaitali Kundu. Now the question is how Dr. Shuvo Dutta can

produce such eco-screening report dated May 7, 2017 before the

Commission: was he called as a witness before the Commission or was he

asked to submit an affidavit to that effect? Needless to mention that as Dr.

Shuvo Dutta was the primary consultant of the patient, he was within the

periphery of the complaint lodged by the son of the deceased. But it appears

that the Commission without seeking any affidavit from Dr. Shuvo Dutta

has accepted the eco-screening report dated May 7, 2017 directly from him

surprisingly.

39. The Commission has also failed to give sufficient opportunities to Dr.

Giri for refuting alleged imputation cast upon him.

40. In 2005 AIR (SC) 3280 (State of Punjab Vs. Shiv Ram & Ors.) the

Hon'ble Apex Curt has been pleased to observe in paragraph 28 that unless

primary liability is established, vicarious liability on the state cannot be

imposed. In (2012) 5 SCC 242 (Vijay Singh Vs. State of Uttar Pradesh &

Anr.) the Hon'ble Supreme Court has been pleased to hold that in civilized

society governed by rule of law, punishment not prescribed under statutory

rules cannot be imposed. In the case of (2005) AIR SC 3180 (Jacob

Mathew Vs. State of Punjab & Anr.), Hon'ble Apex Court has been pleased

to quote from the Halsbury's Law of England (Fourth Edition, Vol. 30,

para 35) as hereunder:-

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."

41. In Gujrat Steel Tubes Limited & Ors. (Supra) the Hon'ble Suprme

Court has been pleased to lay down that an appellate power interferes not

when the order appealed is not right but only when it is clearly wrong. The

difference is real, though fine. In Wander Limited Vs. Antox India Pvt. Ltd.

reported at 1990 (Supp) Supreme Court Cases 727 the Hon'ble Apex

Court in paragraph 13 and 14 has laid down the correct principle on the

relevant issue. According to Hon'ble Supreme Court:-

"13. On a consideration of the matter, we are afraid, the appellate bench fell into error on two important propositions. The first is a mis-direction in regard to the very scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred - against a discretionary order. The second pertains to the infirmities in the ratiocination as to the quality of Antox's alleged user of the trademark on which the passing-off action is founded. We shall deal with these two separately.

14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph (SCR 721)

.... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton..the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case."

The appellate judgment does not seem to defer to this principle."

42. It is true that unless there is any palpable wrong, the judgment of

Single Judge should not be interfered with by the Division Bench. But in our

case it appears that the Learned Single Judge was not properly assisted to

consider that when professional misconduct of a doctor is to be adjudicated

by a specialized branch under a statute and rules made thereunder, the

Hon'ble Commission could not have entered into such arena. The Learned

Single Judge was not assisted in coming to the conclusion regarding the

standard or degree of competence required for a medical professional. The

learned Single Judge was also not assisted by drawing His Lordship's

attention to the fact that sufficient opportunities were not given to the

concerned doctor for refuting the allegation brought against him.

43. In fact, in our case, the issues of medical negligence and the issues of

alleged deficient patient care services are so inextricably mingled up, the

issues of patient care service cannot be taken up separately. In other words

the issues of patient care service are dependent upon the competence of the

concerned doctor or the ECG technician, and such technical issues which

are required to be addressed before the specialised branch, could not be

adjudicated by the Hon'ble Commission. The instant fact was also not

considered by the Learned Single Judge. There are sufficient materials on

record which suggest that there are certain palpable wrongs in the Hon'ble

Commission's order which were not properly addressed by the Learned

Single Judge.

44. Considering all the aspects we are unable to uphold the judgment and

order passed by the Learned Single Judge passed in WPA No. 7191 (W) of

2018 on 24.09.2019 and accordingly, we set aside the impugned judgment

passed by the learned Single Judge as well as the order of the Hon'ble

Commission. The instant appeal is, thus, allowed but without any order as

to costs.

45. However, we make it clear that the complainant/aggrieved persons

is/are at liberty to agitate all the issues regarding the medical negligence

and deficient patient care service before the appropriate forum under the

National Medical Commission Act, since the Indian Medical Council Act,

1956 has been repealed. In the event, the complainant approaches the

forum as indicated above, such authority shall dispose of the matter without

being influenced by any of the observations made in this judgment. The

appellant is also given liberty to withdraw the sum of Rs. 15,00,000/-

(Fifteen Lakhs) deposited with the office of the Registrar General, High Court

at Calcutta in accordance with law, after the expiry of the period of appeal.

46. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

I agree.

(ARIJIT BANERJEE, J.)

(APURBA SINHA RAY, J.)