Dr. Avnindra Gupta vs Medical Council Of India & Anr.
2011 Latest Caselaw 4559 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        Date of decision: 16th September, 2011
+                           W.P.(C) 5058/2011
%      DR. MADHU KARNA                                         ..... Petitioner
                   Through:               Mr. Sandeep Kapoor, Adv.
                                   Versus
       MEDICAL COUNCIL OF INDIA & ANR.        ..... Respondents
                   Through: Mr. Ashish Kumar, Adv. for MCI.
                            Mr. Saurabh Sharma, Adv. for R-2.
                                          AND
+                           W.P.(C) 6084/2011
%      DR. AVNINDRA GUPTA                                       ..... Petitioner
                    Through:              Mr. Mahabir Singh, Sr. Adv. with Mr.
                                          Rakesh Dahiya & Mr. Nikhil Jain,
                                          Advocates.
                                   Versus
    MEDICAL COUNCIL OF INDIA & ANR.          ..... Respondents
                 Through: Mr. Ashish Kumar, Adv. for MCI.
                           Mr. Saurabh Sharma, Adv. for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may                 YES
       be allowed to see the judgment?

2.     To be referred to the reporter or not?                YES

3.     Whether the judgment should be reported               YES
       in the Digest?

W.P.(C) No.5058/2011 & W.P.(C) No.6084/2011                         Page 1 of 15
 RAJIV SAHAI ENDLAW, J.

1. These petitions have been filed impugning the order dated 19 th April,

2010 of the Delhi Medical Council and the order dated 19 th May, 2011 in

appeal, of the Medical Council of India (MCI).

2. A complaint was filed by one Mr. Anil Kumar Mahato with the Delhi

Medical Council, of professional negligence by the petitioners in the matter

of treatment at Centre For Sight of the baby daughter of the said Mr. Anil

Kumar Mahato. It was inter alia the case of Mr. Mahato that he took his

daughter to the Centre For Sight where she was examined by skilled

professionals and Retina Specialists i.e. the petitioners, but due to their gross

negligence the disease was not diagnosed by them and the Retinoblastoma

became incurable and eye of the child had to be subsequently removed and

which could have been saved if detected in early stages when the child was

examined by the petitioners. The Delhi Medical Council, after hearing the

petitioners, vide order dated 19th April, 2010, though finding the petitioners

to be guilty of professional negligence in, contrary to norms, in the face of

symptoms, not suspecting the Retinoblastoma and not getting the mandatory

tests done and advising Squint Surgery which is not advisable till tumour is

ruled out, let them off, only with a warning.

3. The petitioners did not avail of the remedy of appeal against the

aforesaid order of the Delhi Medical Council.

4. However Mr. Mahato aforesaid, preferred an appeal to the MCI for

enhancement of punishment to the petitioners and which appeal was

disposed of vide order dated 19th May, 2011 by the MCI.

5. The MCI has held that there was error of judgment on the part of both

the petitioners on the issue of B-Scan and Squint Surgery but delay in

diagnosis of Retinoblastoma has not affected patient's prognosis. The MCI

thus, while upholding the decision of Delhi Medical Council and dismissing

the appeal of Mr. Mahato, noted that both the petitioners are specially

trained Retinal Surgeons from reputed Institutes in the country specialized in

eye surgery namely Arvind Eye Hospital and Shankar Netralaya and that in

view of their very specialized training were expected to have not committed

such an error of judgment. The MCI accordingly recommended that the

petitioners should attend their above named Institutes i.e. Arvind Eye

Hospital and Shankar Netralaya for Continuous Medical Education (CME)

and update for 15 days every year for next 3 years.

6. The senior counsel for the petitioner in W.P.(C) No. 6084/2011 has

contended that the said petitioner had in the prescription, advised B Scan and

in the orders impugned it has been wrongly recorded that he had failed to

advise B Scan.

7. The counsel for the petitioner in W.P.(C) No. 5058/2011 has

contended that MCI has wrongly presumed that the said petitioner is

specially trained retinal surgeon when she is a Squint Specialist. It is thus

contended that there is perversity in the orders and the same should be set

aside.

8. The counsel for the respondent MCI has contended that the petitioners

were satisfied with the order of the Delhi Medical Council and did not

challenge the same and cannot now challenge the factual findings in the said

order which have been upheld in appeal by MCI and the challenge if any can

at best be only to the further directions issued by the MCI in appeal for the

petitioners to undergo education and update.

9. The counsel for the petitioner in W.P.(C) No.5058/2011 though

claims that the said petitioner had preferred an appeal, is unable to show so

from the records. Thus, the said plea cannot be accepted.

10. I have also enquired from the counsels for the petitioner as to what is

the scope of judicial interference in the orders of bodies such as MCI. MCI

is a democratic, statutory, representative body of the professionals in the

field of medicine and governs the numerous facets of the said profession.

Section 20A of the Indian Medical Council Act, 1956 enables the MCI to

prescribe standards of professional conduct and etiquette and a Code of

Ethics for Medical practitioners and to punish violations thereof including

by removal of name from the Register thereby preventing the delinquent

from practicing medicine. The Indian Medical Council (Professional

Conduct, Etiquette & Ethics) Regulations, 2002 provide the procedure for

enquiring into such complaints. A perusal of the orders of Delhi Medical

Council & MCI shows the matter to have been considered by Medical

Professionals. There is no argument that the Medical Professionals who

have returned the findings aforesaid were not competent to and/or did not

have the requisite expertise in the matter. It is not the argument that such

professionals were biased against the petitioners. I have wondered whether

this Court can in the circumstances, interfere with the concurrent findings of

two sets of Medical Professionals. Judicial review is of the decision making

process and not of the decision. No error in the decision making process of

either of the two professional bodies is argued. Nothing is shown that the

conclusions reached are preposterous. The arguments aforesaid noted, are

not unequivocally borne out from the record. This court in exercise of

powers of judicial review is not to sit in appeal over the decision of the

Professional Bodies who are otherwise competent and experts to deduce

whether there has been any error of judgment as has been found by the MCI

in the present case.

11. I also agree with the contention of the counsel for the respondent MCI

that the petitioners having not challenged the order of the Delhi Medical

Council are deemed to have accepted the same as correct and cannot now

seek to challenge the factual findings, of error of judgment, having been

committed by them in treatment of the baby daughter of Mr. Mahato. If the

petitioners were aggrieved from the findings of Delhi Medical Council, they

had the remedy of appeal, prescribed under the Act and Regulations supra.

The challenge now by the petitioners can at best be to the direction to them

for undergoing education and update.

12. The counsel for Mr. Mahato has also invited attention to the Report of

the Team of Ophthalmologists constituted by the Safdarjang Hospital

pursuant to the directions in a consumer complaint also preferred by Mr.

Mahato against the Centre For Sight. The said team also reported that the

basic tests which ought to have been carried out in the first instance to

establish the diagnosis, were not carried out.

13. As far back as in P.J. Ratnam v. D. Kanikaram (1964) 3 SCR 1 it

was held that the object of a proceeding in respect of professional

misconduct under the Bar Councils Act and similar statutes is to ensure that

highest standards of professional misconduct are maintained; the

proceedings though in a sense penal, are solely designed for the purpose of

maintaining discipline to ensure that a person does not continue in practice

who by his conduct has shown that he is unfit so to do. Similarly in V.C.

Rangadurai v. D. Gopalan (1979) 1 SCC 308 it was reiterated that

disciplinary proceedings are sui generis and are neither civil nor criminal in

character and that as a rule even in exercise of appellate power (under

Section 38 of the Advocates Act, 1961) the Court would not, as a general

rule interfere with the concurrent finding of fact by the Disciplinary

Committee of the Bar Council of India and of the State Bar Council unless

the finding is based on no evidence or it proceeds on mere conjecture and

unwarranted inferences. The Supreme Court in Rajendra V. Pai v. Alex

Fernandes (2002) 4 SCC 212 held that ordinarily this Court does not

interfere with the quantum of punishment where an elected statutory body of

professionals has found one of their own kinsmen guilty of professional

misconduct unless the punishment is found to be totally disproportionate to

the misconduct. The Division Bench of this Court also recently in Satendra

Singh Vs. Union of India MANU/DE/2694/2009 though in a different

context held that in exercising jurisdiction under Article 226 of the

Constitution of India, this Court is not to sit as a superior medical expert

expressing opinions over the opinions rendered by the experts in the field.

14. The scope of interference by the Courts in such matters is defined by

the English Courts in Meadow vs. General Medical Council [2007] Q.B.

462 and Raschid vs. General Medical Council [2007] 1 W.L.R. 1460 as

under:

(A) The panel is concerned with the reputation and standing of the medical

profession, rather than with the punishment of doctors;

(B) The judgment of the panel deserves respect as the body best qualified to

judge what the profession expects of its members in matters of practice and

the measures necessary to maintain the standards and reputation of the

profession;

(C) The panel's judgment should be afforded particular respect concerning

standards of professional practice and treatment;

(D) The court's function is not limited to review of the panel decision but it

will not interfere with a decision unless persuaded that it was wrong. The

court will, therefore, exercise a secondary judgment as to the application of

the principles to the facts of the case before it.

It has further been held that since the principle purpose of the Panel's

jurisdiction in relation to sanctions is the preservation and maintenance of

public confidence in the profession rather than the administration of

retributive justice, particular force is given to the need to accord special

respect to the judgment of the professional decision-making body in the

shape of the Panel.

15. I have in the circumstances wondered whether any interference in the

direction for undergoing education and update is necessary.

16. The senior counsel for the petitioner in W.P.(C) No.6084/2011 has

contended that Dr. Avnindra Gupta is a very senior Retinal Surgeon and one

out of only eight in the city with such high qualification and he has been

visiting the Shankar Netralaya as a guest Lecturer and if he is now directed

to undergo any training there as a student from persons much junior to him,

neither will it serve any purpose and it would demean him before his juniors.

17. The counsel for Dr. Madhu Karna has contended that the order of the

MCI is vague; it mentions two Institutes but does not specify as to which of

the petitioners is to undergo further education in which Institute. The

counsels are unable to state whether any petitioner has been a student of

Arvind Eye Hospital though it is stated that both were students of Shankar

Netralaya.

18. The direction of the MCI pursuant to the findings reached, to the

petitioners to undergo further training and update in their alma mater cannot

be said to be disproportionate in any manner so as to call for interference by

this Court. Learning is a life long process of keeping abreast of change. Even

otherwise, not only for the petitioners but for every professional, such

updation of professional skills is mandatory. Traditionally, it is the

responsibility of the individual medical practitioner to remain competent.

However, with the exponential growth of knowledge and technology and

consequent demands for changing practice, no practitioner can hope to

remain competent for more than a few years after graduation without

updating knowledge and skills through a programme of active learning.

There have been advancements by leaps and bounds in the medical field

specially with the introduction of modern technology in diagnosis and

treatment. The tradition of graduating in medicine from a university and then

obtaining a licence for life from the medical council is no longer acceptable,

when the quality of care provided depends so much on the efforts of

practitioners to keep themselves up-to-date. Therefore, periodic

recertification of doctors has become inevitable. Senior doctors in the city

often admit that they have studied till X-ray only inasmuch as at the time

when they were in medical college the subsequent inventions of ultrasound,

MRI, CT Scan etc. did not exist. It is only through continuous learning and

education that they are today able to read diagnostic reports of subsequent

inventions. The need for such updation has been felt in the legal profession

also and lecture series and knowledge sharing programmes are being

introduced. Due to the pace at which knowledge is growing, even people

who are considered experts sometimes find it hard to keep up with recent

developments in some fields. The knowledge base of those who earn

advanced degrees becomes obsolete quite soon if they do not keep current in

their areas of specialization. I therefore do not see any stigma in the

petitioners going as students to the Institutes where they also lecture. In the

field of Information Technology specially, it is often the youngsters who

have more innovative ideas than their seniors.

19. However, I find merit in the contention of the senior counsel for the

petitioner that the directions of MCI are vague and the possibility of the

same not serving any purpose cannot be ruled out. It is therefore felt that

MCI should be more specific in drawing up the curriculum which the

petitioners are to undergo so that the objective of the direction is achieved

and the direction does not remain on paper only. MCI ought to be more

specific in designing good quality CME and professional development

courses appropriate to the petitioners. The same need not be limited to one

or two institutes and need not be at one stretch of time and can be spread out

at different times/venues. The same can also be in the form of conferences

and participation in professional meetings. It may also take the form of

teaching other professionals just a notch below in as much as a teacher also

has to first study and be prepared to answer the queries from the taught.

20. Merit is also found in the contention that the petitioners while

undergoing such updation should not feel demeaned or belittled as the same

would not produce a conducive environment for the petitioners to acquire

further knowledge and expertise as the purpose of the directive of the MCI

is. I may notice that though Medical Councils in some countries have

introduced a provision of periodic re-certification of their practitioners but

the same has not been successful mostly because of lack of motivation and

failure to develop appropriate CME programmes. It is necessary to motivate

the petitioners to realize the importance of CME programme to practice high

quality medical care. In fact it is found that CMEs concentrate on academic,

technical or subject based knowledge and other issues for overall

development are left out. Attention needs to be paid to professional

development also.

21. The MCI is accordingly directed to fine tune the directions in the light

of the observations herein, if need be in the consultation with the petitioners

so that the period of training serves the purpose intended. The needful be

done within three months. It is informed that the next meeting of the Ethics

Committee of the MCI is to be held on 27th September, 2011; if possible the

said matter be considered and appropriate directions be issued on the same

day. The petitioners, if so desire may also remain present on 27 th

September, 2011 for meaningful directions being issued.

The petitions are disposed of in terms of above. No order as to costs.

Copy of this order be given Dasti under signature of the Court Master.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 16, 2011 bs