Dr. Vivek Banyal vs Govt. Of National Capital ...
2002 Latest Caselaw 463 Del

JUDGMENT

Manmohan Sarin, J.

1. Rule.

With the consent of the parties, writ petitions are taken up for disposal.

2. Civil Writ petition No. 4794/98 has been filed by Dr. Vivek Banyal, who was the Doctor on duty, managing Intensive Coronary Care Unit (ICCU) on the fateful night of 5th and morning of 6th February, 1997.

Petitioner in the second civil writ petition No. 6369/98 is the Hospital, Sunder Lal Charitable Hospital.

3. Dr. Vivek Banyal, petitioner in CW.No. 4794/98, seeks the relief of setting aside and quashing of the enquiry report i.e., annexure C to the writ petition, which a per the petitioner indicts him. Further directions are sought for restraining the respondents from giving effect to the impugned indictment of the petitioner.

4. In CW.No. 6369/98, Sunder Lal Charitable Hospital, has again sought quashing of the report of the three member enquiry Committee and in particular the observations relating to the petitioner's hospital, as reproduced in para 7 of the writ petition, to be noticed hereinafter.

5. For an appreciation of the matter in controversy, the factual matrix may be briefly noticed:-

(i) Late Dr. Subhash Goel, who happened to be an ENT Consultant, also working at the Sunder Lal Charitable Hospital, was admitted to the Hospital in ICCU at 11.00 p.m. on 5.2.1997, with acute coronary deficiency. Being a member of the medical fraternity and a consultant attached to the hospital itself, he was attended to by number of Doctors, among them were Cardiac Consultants Dr. Y.P. Munjal, Dr. S.K. Mehta Along with Doctor on duty , Dr. Vivek Banyal. A friend of late Dr. Subhash Goel, Dr. Ajay Mittal, Cardiologist from All India Medical Institute, also examined Dr. Subhash Goel.

(ii) Without going into the specific details of the diagnosis and treatment, it may be noted that there as broad consensus among the doctors, who approved the line of treatment, which was given. The option of going in for Echocardiogram test was also considered. However, it was not acted upon as the final opinion, which prevailed was that he should not be shifted to the Echo Laboratory and thereby subjected to exertion and resultant risk. As fate would have, the condition of Dr. Subhash Goel deteriorated early in the morning. He suffered a massive cardiac attack/arrest at 6.55 a.m. on 6.2.1997 and passed away.

(iii) The relations of Dr. Subhash Goel were not satisfied with the treatment that had been meted out to him and complained about the same. The main allegations in the complaint are of not conducting tests such as Echo Cardiogram, bed side troponin test and non-availability of enzymee test reports. Treatment being given without proper diagnosis being established. The non-availability of a senior doctor or cardiac specialist at night. Lastly, the tampering of case record.

(iv) A preliminary enquiry was conducted by the Medical Superintendent Nursing Homes, Directorate of Health, Dr. Vijay Rai, who submitted his report dated 25.3.1997. Dr. Vijay Rai noticed that Dr. Ajay Mittal and Dr. Y.P. Munjal, Consultants had not put their signatures below their advice, re corded by the Doctor on duty. Considering the fact that no post mortem was done and allegation of report tempering, he recommended constitution of a three member enquiry board under the chairmanship of a senior Cardiologist. It is this recommendation, which led to the second enquiry committee report under the Chairmanship of Dr. V.A. Kaul, the then Director Professor, Department of Cardiology, G.B. Pant Hospital.

(v) It is with some of the conclusions reached and comments made by the three member enquiry committee of the Cardiologists, by which the petitioners are aggrieved. These are reproduced as under:-

"Regarding the non-availability of a senior Doctor at night, the committee examined the qualifications and experience of the resident doctor on duty in the ICCU, who was looking after Dr. Subhash Goel from the time Dr. Y.P. Munjal left the hospital (around 1.15 a.m.) to his developing a cardiac arrest (around 6.30 a.m.), we are of the opinion that the doctor was not qualified or experienced enough to monitor the electrocardiographic and hemodynamic changes occurring in a patient with acute coronary insufficiency evolving into myocardial infarction. A person with an MD (Medicine) or DM (Cardiology) qualification could have interpreted the events and ECG changes occurring in the vital period between 1.00 a.m. and 6.00 a.m. better and taken any decisions regarding management (such as continuation of TNG, giving thrombolytic therapy etc.).

Sudden and unforeseen deterioration in the condition of a patient with cute coronary syndromes is well know, and the best of care may not be able to prevent all the deaths in this disease. However, a higher level of medical attention is desirable in acute coronary care units.

Regarding the possibility of the records having been tempered with,a as noted in the report made by Dr. Vijay Rai, it was not possible to either confirm or dismissed this possibility at the time that the records were made available to the members of this enquiry committee. An attempt was made by showing some of the ECGs to Dr. Ajay Mittal. He too, was not able to comment on whether the ECGs shown to him were the same as those that were seen by him on 5.2.1997."

6. Learned counsel for the petitioner, Mr. A.K. Singla, in support of the petitions has submitted that these observations have been made against the petitioner, Dr. Vivek Banyal, in violation of the principles of natural justice, without the petitioner having been granted an opportunity of representing his version or testifying as to his experience in treatment of cardiac cases. Secondly, he contends that as per the Delhi Nursing Homes Registration Rules, 1953, as amended in 1992, the requirement as per Rule 7 is to engage one qualified doctor, holding a degree recognised by the Medical Council of India or the Medical Council of a State, round the clock for every 20 beds or fraction thereof in the nursing home. Further, that nursing home providing intensive care facilities; there shall at least be two doctors exclusively for intensive care. The relevant extract from the notification dated 1.5.1992 of Delhi Nursing Homes Registration (Amendment) Rules are reproduced below:-

(ii) In item at Serial No. 5 (Nursing staff), the following shall be inserted at the end, namely In Nursing Homes providing Intensive Care Unit facilities, there shall be at least four nurses provided exclusively for four such beds or fraction thereof.

(iii) After item at Serial No. 6 the following new items shall be inserted namely:

7. Doctor- These shall be one qualified doctors holding a degree recognised by the Medical Council of India or the Medical Council of a State round the clock for every 20 beds or fraction thereof in the nursing home. In case of Nursing-homes providing intensive care facilities, there shall at least be two doctors exclusively for intensive care."

7. Learned counsel for the petitioner submits that in this case the petitioner himself, Dr. Vivek Banyal is a MBBS from Amrawati University, Maharashtra and Nursing Home also had the requisite staff. Accordingly, the observations made in paras 6 and 7 of the three member enquiry committee report were uncalled for the ought to be set aside and quashed.

8. Learned counsel for the respondent has in opposition submitted that the report of the Enquiry Committee was a fact finding report. As and when the report is acted upon the petitioners would have an opportunity to defend and/or justify their actions. As regards the allegation of tempering of records, the committee has neither confirmed nor dismissed the allegation. The respondents have averred that no action is to be taken against anyone on this basis along. In view of the above stand taken by the respondents as well as consideration the following factors (i) Enquiry Committee has expressed its agreement with the line of treatment given in the Hospital; (ii) the observation that the Hospital has the requisite equipment to treat such a case at secondary levels, the relief on orders, as sought by the petitioners are not warranted and cannot be granted in thes proceedings.

The Committee has simply observed that the Doctor was not qualified or experienced enough to monitor the Electrocardiographic and Hemodynamic changes in a patient, suffering from acute coronary insufficiency. It would be open for the petitioners in any proceedings if it at all that are initiated, to set up their defense and show that petitioners had done all that was necessary. It would be open to the petitioner to assail or question the committee's inference or conclusions. Ordered accordingly.

9. The present case has brought into focus the need for a relook and review of the Delhi Nursing Homes Registration Rules. Presently, for a registered Nursing Home with 20 beds, a qualified Doctor holding a degree recognised by the Medical Council of India or the Medical Council of State is required to be available round the clock. In case of nursing homes with 20 beds providing intensive care facilities, two doctors are required exclusively for the intensive care. The recognised degree is MBBS.

In the present era of super-speciality, coupled with high cost of medical treatment and the charges of Nursing Homes, especially those providing ICU and ICCU facilities, the above Rules require a relook. A patient has a legitimate expectation rather a right to receive timely and the best diagnostic and curative treatment by qualified trained and experienced doctors, having speciality in their field. In this context, the Authorities should consider whether the ICU and ICCU's should be manned atleast by Doctors with Post Graduate Qualifications in medicines or surgery or the concerned discipline, as the case may be.

10. The need to have specially trained nursing staff manning the ICUs and ICCUs can not also be underscored. Rather it is of critical importance as the nursing staff is the back bone of any ICU or ICCU. It is the nursing staff, who gets the fist opportunity to notice signs of any impending emergency and take corrective action and alert the Doctors. Considering the above, I had directed the presence of the Medical Superintendent of Nursing Homes.

Dr. Ashok Kumar, Medical Superintendent Nursing has also been heard on these aspects. He informs that in Delhi there are 461 registered nursing homes with 72 nursing homes having ICUs and 31 nursing homes having ICCus facilities. Generally these nursing homes have a Resident Medical Officer, with a minimum qualification of MBBS. He has explained that at times in some of the nursing homes it is the owner, who lives nearby or in the same premises and has Post Graduate Qualifications. However, the ICUs and ICCUs are manned for 24 hours by Doctors having a minimum MBBS degree. As regards nurses, he has explained that there is Diploma course in Nursing as also a degree course of three years. Dr. Ashok Kumar explains that although desirable, but on account of high costs and limited availability of Doctors with Post Graduate qualifications, generally the ICU and ICCU's are manned by MBBS doctors. He submits that this is a matter, which requires a detailed examination, consideration and review.

11. I am of the view that it is high time that the authorities responsible for regulating nursing homes in the expanding metro of Delhi take stock of the situation and initiate corrective steps. In case, the authorities find that either on account of economic factors or on account of non availability, it is not feasible for nursing homes to afford and provide Doctors with Post Graduate qualifications to man the ICU or ICCUs, then in the alternative, they could consider specialized training programmes where doctors with minimum qualifications of MBBS, go through a specialised training in established and recognised private or public hospitals, having intensive care facilities in the cardiac or other specialities. The curriculum of such programmes and periods thereof needs to be considered and devised. Similarly, specialized training programme for nurse to enable them to work in ICUs and ICCUs in nursing homes requires to be considered and devised.

12. Towards this end, I direct the constitution of a Committee comprising Dr. R.N. Baishya, Director, Directorate of Health Services, F-17, Karkardooma, Delhi-32 as the Convener with the following numbers:

1. Dr. Ashok Kumar, F-17, Karkardooma, Delhi 32, Medical Supdt. Nursing Home II,

2. Dr. Harish Grover, DMA House, Darya Ganj, Delhi- 2, Chairman of Delhi Medical Association Nursing Home & Medical Establishment Forum;

3. Dr. S.K. Khattri, Room No. 356-357, III floor, Pathology Block MAMC, New Delhi-2 (Registrar & Secretary of Delhi Medical Council)

4. Mrs. Bimla Kapoor, School of Health Sciences, IGNOU, Maidan Garhi, New Delhi-68, (President, Delhi Nursing Council)

The Committee shall duly consider and examine various aspects concerning regulation of nursing homes and their functioning. IN the light of latest technological and further advances, the Committee to consider, review an recommend the requirements of medical equipments for ICUs and ICCUs, such as, portable Echo Cardiography machine, Cardiac Monitors, Central Cardiac Monitors, Defibrilliiators, temporary pace making facilities ventilators/respirators, pulse oxymeter, I.V pump, arrangement for measurement of blood gases (ABG Machine), Portable X-ray machine etc. The Committee shall also consider and examine the entire matter in the light of the observations made in the judgment in paras 9 to 11 above as also prescribing the life saving drugs which ought to be retained in stock. The Committee shall submit its report to the Govt. of NCT with a copy being filed in the Court within four months.

The observations made above are merely illustrative of the issues involved and are not intended in any manner to limit the Committee in making its recommendations with regard to regulation of nursing homes, proposed amendments in the Registration Rules or making any further suggestions for improvements in the facilities and for operational efficiency in the services rendered by nursing homes.

The registry is directed to send a copy of this judgment for implementation to Dr. R.N. Baishya, Director, Directorate of Health Services, F-17, Karkardooma, Delhi-110 032, who has been appointed as the Convenor.

The writ petition stand disposed of