Madhu Karna vs Medical Council Of India & Ors
2013 Latest Caselaw 1602 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      LPA 569/2012

       MADHU KARNA                                         ..... Appellant
                              Through:Mr.Sandeep Kapoor, Mr.Ankit Kapoor &
                              Ms.Yaranica Kapoor, Advocates along with appellants in
                              person.


                     Versus

       MEDICAL COUNCIL OF INDIA & ORS           ..... Respondents
                   Through:Mr.Ashish Kumar, Advocate for
                   respondent/MCI.
                   Mr.Praveen Khattar, Advocate for respondent No.2.
                   Mr.Saurabh Sharma, Advocate for respondent No.3.



+      LPA 707/2012

       AVNINDRA GUPTA                                        ..... Appellant

                              Through: Mr.Sandeep Kapoor, Mr.Ankit Kapoor &
                              Ms.Yaranica Kapoor, Advocates along with appellants in
                              person.

                     versus

       MEDICAL COUNCIL OF INDIA ORS                             ..... Respondents

                              Thourgh: Mr.Ashish Kumar, Advocate for
                              respondent/MCI.
                              Mr.Praveen Khattar, Advocate for respondent No.2.
                              Mr.Saurabh Sharma, Advocate for respondent No.3.


LPA No.569/12, 707/2012                                                        Page 1 of 9
        CORAM:

       HON'BLE THE CHIEF JUSTICE

       HON'BLE MR. JUSTICE V.K. JAIN



                          ORDER

% 09.04.2013

1. On 10.9.2007, respondent No.3 brought his daughter Baby Kanak, aged

about 2 years to Centre for Sight, with complaint of right eye squinting. Dr.Madhu

Karna, the appellant in LPA No.569/2012 examined her and found the patient

having right eye Eccentric fixation. On ophthalmoscopy the patient was found

having retinal detachment in the right eye. Dr.Madhu Karna diagnosed RE-

Superior temporal colobama with RD, sensory Exotropia and referred the patient to

Retina Specialist. The child of the complainant was then examined by

Dr.Avnindra Gupta, the appellant in LPA No.707/2012 who is a Retina Specialist.

Dr.Avnindra Gupta recorded the finding of Hard exudates with Elevation with

serious RD and made a diagnosis of Coates disease. The patient was advised

review after 3-4 months. When the patient was brought for follow up on

28.11.2007, Dr.Madhu Karna advised squint surgery. The patient was then

examined by some other doctors and ultimately referred to Dr.R.P.Centre, AIIMS.

The patient again reported to private doctor who referred her to O.P. Surgeon for

further management and left eye EUA to rule out any tumor. The patient was

diagnosed by Dr.R.P.Centre of AIIMS to be suffering from "poorly differentiated

retinoblastoma with large area of necrosis and calcification; Choroid in involved

by tumour cells in its entire thickness(stage 4); optic nerve head is involved and the

tumour extends beyond the retrolaminar space as well, however, the cut end is free

of tumour." Ultimately, the eye of the child had to be removed. Alleging

negligence on the part, the doctors, respondent No.3 made a complaint to Delhi

Medical Council. Vide order dated 19.4.2010, the following observations were

made by Delhi Medical Council:

"A two year old child with a right divergent squint for last one year (approx) and fundus showing an RD involving macula a diagnosis of Retinoblastoma should always be suspected and a B-scan USG, EUA and a CT/MRI of orbit and brain is mandatory immediately. In addition parents should be informed of the possibility of tumour in right eye. A squint surgery is not advisable till tumour is ruled out."

Both the appellants were issued a warning by Delhi Medical Council.

2. Respondent No.3 filed an appeal before Medical Council of India against the

order passed by Delhi Medical Council. The matter was considered by Ethics

Committee of the Medical Council at its meeting held on 10.5.2011, and the

following order was passed:-

"... In view of the abovementioned facts the committee is of the opinion that the decision of Delhi Medical Council is correct. And appeal of Mr.Mahato can not be upheld. However the committee noted that both the doctors are specially trained retinal surgeons from reputed institutes in the country specialized in eye surgery namely Arvind Eye Hospital and Shankar Netralaya. The committee further noted that in view of their very specialized training it is expected that they should not have committ4ed such an error of judgment.

Therefore, the committee recommends that Dr Arvind Gupta and Dr Madhu Karna should attend their above mentioned institutes i.e. Arvind Eye Hospital and Shankar Netralaya for CME and Update for 15 days every year for next 3 years and submit compliance report with the certificate of completion of update from the concerned institutes to MCI ethics section every year for next three years. The committee directs MCI ethics section to inform this decision to the concerned institutes also."

3. Being aggrieved from the order passed by Delhi Medical Council and

Medical Council of India, the appellants filed WP(C) No.5058/2011 and WP(C)

No.6084/2011, which came to be dismissed by a common order dated 16.9.2011.

The learned Single Judge held that the appellants having not challenged the order

of Delhi Medical Council were deemed to have accepted it as correct and could not

seek to challenge the factual findings of error of judgment committed by them in

treatment of the daughter of the complainant and the challenge in the writ petition,

therefore, could at best be to the directions to them for undergoing education and

update. The writ petition was disposed of with the following directions:-

"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 27th September, 2011 for meaningful directions being issued."

4. Pursuant to the order passed by the learned Single Judge, the matter

was again considered by the Ethics Committee of the Medical Council of

India and the following order was passed:-

"The Ethics Committee noted that as suggested by the High Court of New Delhi under WP(C) No.5058/2011 & WP(C) 6084/2011 dated 16th September, 2011, the above doctors need not undergo CME programs only in the hospitals where they have undergone sub specialty training. They have to undergo 15 days of continuous Medical Education Program ( CME) and continuous professional development program (CPD) every year for three years in Ophthalmology especially in their respective areas of sub specialty. They can participate in workshops, seminars, symposium, panel discussions, clinical meetings, journey clubs, teaching programs, etc. in recognized international, National and State Conferences and teaching institutions. They can participate in teaching programs in their own institutions of repute. They can participate in such programs in the institutions where they obtained their sub specialty training. Six monthly report of such training to be submitted to Secretary, Medical Council of India for the next three years as compliance."

In view of the above decision of Ethics Committee you are hereby directed to undergo 15 days of continuous Medical Education Program (CME) and continuous professional development program (CPD) every year for three years in Ophthalmology, especially in your respective areas of sub specialty. You can also participate in workshops, seminars, symposium, panel discussions, clinical meetings, journey clubs, teaching programs, etc. in recognized international, National

and State Conferences and teaching institutions. They can participate in teaching programs in their own institutions of repute. They can participate in such programs in the institutions where they obtained their sub specialty training.

You are further directed to submit six monthly report of such training to be submitted to Secretary, Medical Council of India for the next three years as compliance."

5. LPA No.569/2012 and LPA No.707/2012 have been filed by

Dr.Madhu Karna and Dr.Avnindra Gupta respectively, challenging the order

dated 19.4.2010 passed by Delhi Medical Council, the order dated 16.9.2011

passed by the learned Single Judge in their writ petitions and the order dated

23.12.2011 passed by Medical Council of India. During the course of

hearing of these appeals, when we pointed out to the learned counsel for the

appellants that no penalty has been imposed upon the appellants by the

Medical Council of India and the error of judgment found on their part does

not amount to casting a stigma, the learned counsel for the appellants

submitted that the complainant has since impleaded the appellants as parties

to the complaint filed before the Consumer Disputes Redressal Commission

and in case the impugned orders are not set aside, the said orders could be

construed as a finding of negligence on the part of the appellants. He also

submitted that in case it is clarified that in the complaint before the

Consumer Disputes Redressal Commission, the said Commission will take

its own view on the alleged negligence of the appellants, without taking

recourse to the view taken by the learned Single Judge in the impugned

order dated 16.9.2011, the appellants would like to withdraw these appeals.

This course of action is agreed to by the learned counsel for respondent

No.3.

6. We, therefore, dismiss the appeals as withdrawn with the observation

that the Consumer Disputes Redressal Commission shall record its own

findings on the alleged negligence of the appellants, without being

influenced by the observations made and the view taken by the learned

Single Judge in the impugned order dated 16.9.2011.

The appeals and all the pending applications stands disposed of.

                                                           CHIEF JUSTICE




                                                           V.K. JAIN, J

APRIL       09, 2013
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