Delhi High Court
Ravi Rai vs Medical Council Of India And Ors. on 20 August, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 10.04.2018
Judgment pronounced on: 20.08.2018
+ W.P.(C) 10506/2017
RAVI RAI
..... Petitioner
Through: Mr.Abhinav Shrivastava with Mr.Rahul
Gupta, Advs.
versus
MEDICAL COUNCIL OF INDIA AND ORS.
..... Respondents
Through: Mr.T. Singhdev, Mr.Tarun Verma, Ms.
Amandeep Kaur Ms.Puja Sarkar, Ms.
Michelle Biakhthans Sanghi and
Mr.Abhijit Chakravarty, Advs. for R-1.
Mr.Praveen Khattar with Mr.Bapi Das,
Advs. for R-2 along with Mr.L.D.S.
Uppal, Assistant Secretary, DMC.
Mr.Saurabh Kirpal with Mr.Mansimran
Singh, Adv. for R-3.
+ W.P.(C) 10625/2017 & CM APP Nos.43513-43514/2017
RAVI RAI
..... Petitioner
Through: Mr.Abhinav Shrivastava with Mr.Rahul
Gupta, Advs.
versus
MEDICAL COUNCIL OF INDIA AND ORS.
..... Respondents
Through: Mr.T. Singhdev, Mr.Tarun Verma, Ms,
Amandeep Kaur Ms.Puja Sarkar, Ms.
Michelle Biakhthans Sanghi and
Mr.Abhijit Chakravarty, Advs, for R-1.
Mr.Praveen Khattar with Mr.Bapi Das,
Advs. for R-2 along with L.D.S. Uppal,
Assistant Secretary, DMC.
W.P.(C) No.10506/2017 & 10625/2017 Page 1 of 24
CORAM:-
HON'BLE MR. JUSTICE RAJIV SHAKDHER
%
RAJIV SHAKDHER, J.
1) These are two writ petitions which have been filed by, one, Mr. Ravi
Rai against the Medical Council of India (in short „MCI‟), Delhi Medical
Council (in short „DMC‟) and two surgeons, namely, Dr. Rahul Kakran and
Dr. Ashwani Maichand. The first writ petition i.e. W.P.(C) 10506/2017,
arrays Dr. Rahul Kakran as respondent No.3 while MCI and DMC have
been impleaded as respondent no.1 and 2 respectively.
1.1) The second writ petition arrays Dr. Ashwani Maichand as respondent
No.3 while, MCI and DMC, as in the other writ petition, are arrayed as
respondent No. 1 & 2 respectively. Therefore, for greater clarity, I would be
referring to the petitioner and the two doctors by their respective names.
Likewise, respondent No.1 and 2 in the two writ petition be referred to as
MCI and DMC respectively.
2) Mr. Rai, in two writ petitions, has assailed the order dated 23.08.2017
passed by the MCI.
2.1) The petitioner‟s grievance qua the order dated 23.08.2017, passed by
the MCI, is twofold: (i) First, insofar as the punishment accorded to Dr.
Rahul Kakran is concerned, according to him, is too less, bearing in mind,
the extent of medical negligence perpetrated against him; and (ii) Second,
that the MCI‟s order, completely exonerates Dr. Ashwani Maichand from
any culpability, which according to him is an egregious error of law and
fact.
3) At this juncture, it would be relevant to advert to two other aspects
which emerge from the order of the MCI, these being aspects which pertain
to the punishment accorded by the very same order to the anaesthetist, Dr.
Yatish Sharma and Dr. Pawan Khurana, the Deputy Medical
Superintendence of Fortis Hospital.
3.1) Both these persons have been issued a warning by MCI. While, Dr.
Yatish Sharma has been warned to be more careful while dealing with the
case of kind, which was the subject matter of the instant proceedings, Dr.
Khurana has been warned as he failed to provide the relevant medical
records, as stipulated in Clause 1.3.2 of the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations, 2002 (in short
„Ethics Regulations‟).
4) Given this preface, I propose to set out hereafter as to how and why
Mr. Rai approached this Court via the instant petition:
4.1) It appears that Mr. Rai, in the evening of 19.06.2016, slipped from the
stairs, possibly of his house, which resulted in injuries being inflicted on
both his legs as well as his lower back.
4.2) Consequently, Mr. Rai was rushed to Fortis Hospital, located at
Shalimar Bagh, New Delhi.
4.3) The petitioner was registered as an in-patient under the supervision of
Dr. Maichand and Dr. Kakran. A diagnostic X-ray was conducted, on that
very day, on the right foot of Mr. Rai. Since, Mr. Rai was informed that he
had suffered a fracture on his right foot, he was advised to get a CT scan
done of his right foot on 20.06.2016.
4.4) Consequently, on 20.06.2016, following diagnostic tests were
performed on Mr. Rai: Firstly, X-rays were conducted of Mr. Rai‟s left leg
and backbone. Secondly, a CT scan was done of Mr. Rai's right leg and
backbone.
4.5) It appears that upon examination of the results obtained from the
aforementioned diagnostic tests, Mr. Rai was informed that he had suffered
a "comminuted" fracture on his right foot and since, his condition was
serious, he would have to undergo a surgery which would involve fixation
of screws on the right foot followed by a plaster-of-paris cast.
4.6) Insofar as Mr. Rai‟s left leg and spine were concerned, it was
suggested to him that he should undertake physiotherapy.
5) It appears that, based on the aforementioned advice, which was given
by the treating doctor i.e. Dr. Maichand, Mr. Rai underwent physiotherapy
twice.
6) The record (X-ray), however, shows that though Mr. Rai had
fractured his spine, information qua this aspect was not given to him.
7) Given this situation, perhaps, physiotherapy was not the right course
of treatment. Mr. Rai, in fact, should have been advised to take complete
bed rest.
8) However, as planned and as advised, Mr. Rai was prepared for
surgery on 20.06.2016. Accordingly, Mr. Rai‟s right foot was marked using
a marker, in preparation of surgery, which was to be performed on the said
foot.
9) The record also shows that despite Mr. Rai having fractured his spine,
he was administered anaesthesia via the spinal cord by Dr. Sharma.
9.1) What compounded this obvious error was that which followed
thereafter. To the horror of Mr. Rai, when he recovered from anaesthesia,
post surgery, he discovered that instead of his right foot, his left foot had
been operated upon. The surgeon i.e. Dr. Kakran, who had performed the
surgery, had inserted the screws in Mr. Rai‟s left foot. Having discovered
the ghastly error, Mr. Rai had to perforce take a discharge from Fortis
Hospital and, evidently, had himself admitted in Max Hospital, Shalimar
Bagh, New Delhi, for getting his right foot operated.
10) Apparently, the injury suffered by Mr. Rai, on account of medical
negligence, hit newspaper headlines which prompted DMC to take suo motu
action in the matter.
11) In the meanwhile, it appears that an FIR No.424/2016, dated
22.06.2016, was registered in Police Station Shalimar Bagh, under Sections
336, 338 & 34 of the Indian Penal Code, 1860 (in short „IPC‟) against the
delinquent doctors.
12) Parallelly, the Disciplinary Committee of the DMC, based on media
reports, representation of the police and on the complaint of Mr. Rai‟s
father, Mr. Ram Karan Rai, commenced its proceedings.
12.1) Before the Disciplinary Committee, it appears that a joint written
statement was filed by Dr. Maichand and Dr. Kakran. A written statement
was also filed by the anaesthetist i.e. Dr. Sharma.
Findings of DMC's Disciplinary Committee:
13) The Disciplinary Committee, based on the material placed before it,
which included the medical records of Fortis Hospital and other documents
as also X-ray and the CT scan films, returned the following findings of fact:
(i) On 19.06.2016, Mr. Rai was admitted to Fortis Hospital. In the first
instance, he was attended by a casualty medical officer and, subsequently,
by a senior resident from the Department of Orthopaedics, who got his right
foot and ankle X rayed.
(ii) Mr. Rai was, thereafter, given a below knee plaster-slab to support his
right lower limb.
(iii) The case-sheet dated 19.06.2016, recorded the plan of Open
Reduction and Internal Fixation (ORIF) of comminuted fracture of the right
side.
(iv) Mr. Rai was made to undergo physiotherapy on 20.06.2016, and
made to stand up with the help of support and commence ankle exercise.
(v) The physiotherapist, Ms. Dipti Jha, (who was also examined by the
Disciplinary Committee), had stated that she was given verbal instructions
to ambulate Mr. Rai with the help of a walker.
(v)(a) This fact is recorded, evidently, in her case-sheet.
(vi) Furthermore, Ms. Dipti Jha deposed that she was aware that non-
weight bearing on the right lower limb with the help of walker amounted to
transmission of 80% weight on the weight bearing left lower limb.
(vi)(a) Ms. Dipti Jha further stated that she was not informed that Mr.
Rai had fractured his left foot or the ankle or even his spine.
(vii) Dr. Maichand, on being queried, had indicated that he had asked for
X-ray of left ankle and foot after he had noticed swelling on the left foot.
There was a doubtful fracture of left calcaneus and, therefore, he had
instructed that ice packs be put on the left foot and that only toe movements
be permitted.
(vii)(a) Apparently, it is in these circumstances that Dr. Maichand did
not advise application of plaster-slab.
(vii)(b) Pertinently, all of this, which, Dr. Maichand stated was not
recorded in the case-sheet.
(viii) Dr. Maichand did not detect spinal fracture, though, the X-ray report
showed fracture of anterior border of L-I spine.
(viii)(a) On being queried, Dr. Maichand admitted that he never
palpated the spine for any tenderness and that diagnosis of spine fracture
was based only on history of pain and X-ray and not on any clinical
examination.
(viii)(b) Dr. Maichand also stated that he allowed the patient to stand
with the help of a walker with only toe movements and that he had not
instructed Ms. Dipti Jha, to allow partial weight bearing of left lower limb.
(viii)(c) It is noted, though, by the Disciplinary Committee that Dr.
Maichand's statement was not supported by the case-sheet record while the
notes of Ms. Dipti Jha, show that she put weight on the left lower limb, and
that she was not informed of any other fracture. This evidently emerged
from the notes recorded by her on 20th and 21.06.2016.
(viii)(d) Furthermore, the notes of 21.06.2016 of Ms. Dipti Jha, records
that „left ankle pain-cum-laser IFT‟ was given along with the cold pack.
(viii)(e) This, according to the Disciplinary Committee, was a wrong
approach if the fractured calcaneus needed surgery. In other words, laser
IFT is never given, if surgery is planned. Therefore, according to the
Disciplinary Committee, there was no plan for surgery on 21.06.2016.
(ix) Pre-operative marking of the right lower limb was done on the second
toe of right side distal to the margin of the plaster. There was no mark on
the left lower limb.
(x) The anaesthetist i.e. Dr. Sharma, on being questioned, informed the
Committee that he was told that the surgery had to be done on the right side.
Accordingly, he gave spinal Anaesthesia. Since, he got busy with the
patient, he did not notice which limb was operated.
(xi) Dr. Kakran informed the Committee that the change in plan i.e. to
operate the left foot instead of the right foot was made in the Operation
Theatre (OT), when, after removing the plaster on the right lower limb, he
found excessive swelling.
(xi)(a) Dr. Kakran claimed that in these circumstances, he thought it
fit to operate the less injured left side (which had a hairline fracture) to
enable Mr. Rai to bear weight on the less painful side.
(xii) Dr. Maichand, on being queried, admitted that he and Dr. Kakran
worked as a team and that it had been agreed between them, albeit, prior to
the operation that in case there was excessive swelling found on the right
side, the operation would be carried out on the left side. It was admitted
though by Dr. Maichand that this was not conveyed to the patient and that
even the change of plan to operate on the left side was not conveyed to Dr.
Sharma, the Anaesthetist.
(xiii) Furthermore, the Committee found that no written consent of Mr. Rai
was taken qua the change of plan or surgery being carried out on the left
side.
(xiv) Upon Dr. Maichand being queried, he confirmed that whether or not
surgery was conducted on the left foot with a doubtful hairline fracture,
weight bearing would mend after eight weeks.
(xv) The Committee concluded that this statement, contradicted the
advantage of early surgery in an un-displaced fracture, which was the basis
on which, a stand was taken by the two surgeons that surgery of the left foot
was in order.
(xvi) There was tampering of the record inasmuch as while there was no
pre-operative mark on patient‟s left limb, the WHO Check-list showed the
mark on the left side. The Committee concluded that if the Check-list was
in order then, consent for surgery for the left foot ought to have been taken.
Furthermore, the record at page No. 52 showed „cuttings‟ which could be on
account of an attempted tampering of records.
14) In short, the Committee came to a conclusion that the surgery had
been planned for the right foot as pre-operative diagnosis had found that Mr.
Rai had suffered right side comminuted calcaneus fracture.
14.1) The Anaesthetist, Dr. Sharma, was informed, accordingly, that the
surgery was to be conducted on the right side and that no consent for
surgery qua the left foot was taken. According to the Committee, there was
rationale in not performing surgery on an un-displaced fracture calcaneus
suffered on the left side which would have united, even if operation was not
performed after about eight weeks.
14.2) Furthermore, even when the case-sheet showed that Mr. Rai suffered
a fracture in the spine, it was not clinically co-related though, Mr. Rai
complained of back pain.
14.3) What made matters worse was that Mr. Rai was made to stand up and
subjected to physiotherapy. The fracture in the spine was not
communicated to Dr. Sharma, the Anaesthetist, which resulted in
administration of spinal anaesthesia. Diagnostic reports with regard to the
aforesaid were available on 19th and 20.06.2016 though not provided to Mr.
Rai.
DMC's Approach:
15) The DMC accepted the findings of its Disciplinary Committee and it
was recommended that the names of Dr. Maichand and Dr. Kakran be
removed from the State Medical Register of the DMC for a period of 180
days. The only modification that the DMC made to the recommendations of
the Disciplinary Committee was that the removal of the names of Dr.
Maichand and Dr. Kakran from the State Medical Register was directed to
take effect after the expiry of 30 days from the date of the order.
MCI's Approach:
16) Aggrieved by the order passed by DMC, appeals were preferred by
Dr. Maichand and Dr. Kakran with the MCI. This apart, two separate
appeals were also preferred by Mr. Rai with the MCI. These appeals, as
indicated at the beginning of my narration, were disposed of by the MCI via
two separate orders of even date, dated 23.08.2017.
16.1) The MCI, via order No.132428 dated 23.08.2017, exonerated Dr.
Maichand completely on the ground that he was absent on the day of the
surgery due to personal reasons and thus, was not present in the OT when
surgery was performed on Mr. Rai. It was also observed that since Dr.
Maichand was only involved in the planning of the operation, whereby, the
decision taken was to operate the right leg and not the left leg and, therefore,
whatever led to the operation of the left foot had no involvement of Dr.
Maichand.
16.2) In so far as Dr. Kakran is concerned, MCI vide order No.132428
dated 23.08.2017, sustained the view of the DMC, principally, on the
ground that he had taken a decision to operate Mr. Rai's left leg without
either taking his or his attendants consent. The conclusion reached was that
Dr. Kakran had not exercised reasonable care while deciding to change
course and thereby, performed surgery on Mr. Rai's left foot as against what
was planned earlier.
16.3) With these two orders, Mr. Rai's appeals were also disposed of by the
MCI.
Dr. Kakran Foray in this Court:
17.) The record shows that Dr. Kakran, being aggrieved by the decision of
the MCI, had preferred a writ petition in this Court. This writ petition
which was numbered as W.P.(C) No.8099/2017.
17.1) The said, writ petition was disposed of at the admission stage itself by
the Single Judge of this Court vide order dated 12.09.2017.
17.2) I am informed that no appeal has been preferred by Dr. Kakran
against the aforementioned order.
Submissions of Counsel:
18) Continuing with the narrative, Mr. Rai being aggrieved by the
decision of the MCI, has preferred the captioned petitions. The submissions
on behalf of Mr. Rai, were advanced by Mr. Abhinav Shrivastava,
Advocate, assisted by Mr. Rahul Gupta, Advocate. In so far as, MCI was
concerned, the submissions were made by Mr. T. Singh Dev, Advocate. As
regards DMC, arguments were advanced by Mr. Praveen Khattar.
18.1) However, for some odd reasons, Dr. Maichand was not represented
on that date. Though, Mr. K.G. Sharma, Advocate, had appeared for Dr.
Maichand on previous dates.
18.2) In so far as Dr. Kakran is concerned, he was represented by Mr.
Saurabh Kripal assisted by Mr. Mansimran Singh.
19) The submissions made on behalf of Mr. Rai, insofar as Dr. Maichand
was concerned, were directed against his complete exoneration by MCI, on
the ground, that it was contrary to the findings recorded in the DMC's order.
19.1) Mr. Shrivastava submitted that Dr. Maichand had admitted that he
and Dr. Kakran worked as a team and that even prior to the surgery, a
decision was taken that the left foot would be operated upon, in case,
swelling was found on the right foot.
19.2) Therefore, according to the learned counsel, the stand taken that Dr.
Maichand had no role to play in the decision taken by Dr. Kakran in the OT
to perform surgery on the left foot as against the right foot, was erroneous.
19.3) Furthermore, it was contended by Mr. Shrivastava, the failure on the
part of Dr. Maichand to clinically examine Mr. Rai even when the X-Ray
showed a fractured spine, demonstrated that he acted without reasonable
care and caution. This callousness displayed by Dr. Maichand, according to
the learned counsel, led to spinal anaesthesia being administered to Mr. Rai.
19.4) The fact that the X-Ray showed that Mr. Rai's left foot had suffered a
hairline fracture was also, carelessly, not communicated to the
physiotherapist, Dr. Dipti Jha. Dr. Dipti was also not informed that Mr. Rai
had fractured his spine and, consequently, at the behest of Dr. Maichand,
Mr. Rai underwent physiotherapy sessions whereas, he should have been
advised complete bed rest.
19.5) It was emphasized by the learned counsel that Mr. Rai had, in fact,
been admitted to the hospital under the care of Dr. Maichand. Dr. Maichand
was Mr. Rai's treating doctor and, therefore, if a decision was taken that
surgery would be performed by Dr. Kakran, the same needed to be
conveyed to Mr. Rai.
19.6) Thus, according to the counsel, complete exoneration of Dr.
Maichand was grossly unfair and flew in the face of the record.
20) As regards Dr. Kakran, Mr. Shrivastava, submitted that there were no
mitigating circumstances in place and, therefore, the punishment accorded
to him was inadequate.
20.1) In this connection, learned counsel sought to highlight the fact that
Dr. Kakran, contrary to what has been found by the MCI not only erred in
not getting written consent from Mr. Rai for operating his left foot but also
erred in performing surgery on the left foot when it was not required.
20.2) By virtue of the surgery, Mr. Shrivastava said, Mr. Rai was put to
unnecessary pain and trauma which could have been avoided by allowing
the left foot to heal on its own. The fact that the left foot could heal on its
own, according to the learned counsel, clearly emerged from the findings
recorded in DMC's order.
20.3) It was highlighted that before the DMC, Dr. Maichand, who, was a
treating doctor had clearly admitted that the left foot would have healed
within 8 weeks, whether or not surgery was performed. Mr. Shrivastava,
stressed, that in fact, it was based on this response of Dr. Maichand, that
DMC concluded that the justification for early surgery of the left foot was
not made out.
20.4) According to learned counsel, given the grave act of medical
negligence committed by Dr. Kakran, he should have been barred for life by
MCI.
21) Insofar as Mr. Singhdev and Mr. Khattar are concerned, they relied
upon the orders passed by the respective bodies, whom, they represented i.e.
MCI and DMC respectively.
21.1) Therefore, while Mr. Singhdev refuted the assertions made on behalf
of Mr. Rai, Mr. Khattar substantially supported the stand taken on behalf of
Mr. Rai, on merits. Insofar as the enhancement of punishment qua Dr.
Kakran is concerned, he chose to rely upon the conclusion reached by
DMC.
Analysis and Reasons:
22) I have heard learned counsel for the parties and perused the record.
Clearly, on perusal of the record, following has emerged: -
(i) Mr. Rai, on sustaining an injury to his lower limbs and lower back,
was admitted to the Fortis Hospital on 19.06.2016, under the supervision of
Dr. Maichand, Senior doctor, and Dr. Kakran.
(ii) On 19.06.2016, an X-Ray was carried out vis-a-vis Mr. Rai's right
foot followed by CT-Scan of the same foot on 20.06.2016.
(iii) An X-Ray of Mr. Rai's left foot and backbone was conducted on
20.06.2016. On that very day, a CT-Scan of Mr. Rai's backbone was also
carried out. The diagnostic test carried out revealed that the bone in the right
foot had broken into many parts. In other words, it was a condition of
comminuted fracture. Consequently, a decision was taken to perform a
surgery on Mr. Rai‟s right foot. He was informed that the surgery would
involve fixation of screws, followed by a plaster-of-paris cast.
(iv) The X-ray of the left foot and the backbone revealed that Mr. Rai had
suffered a fracture in these two parts of his body as well.
(v) Mr. Rai undertook two physiotherapy sessions despite the X-ray
showing that he had fractured his spinal cord. The Physiotherapist, Dr. Dipti
Jha, indicated that she was not informed that Mr. Rai had suffered a fracture
in the left foot and the spine.
(vi) The anaesthetist, Dr. Yatish Sharma, was also informed only about
the fracture in the right foot.
(vii) Prior to the surgery, the right foot was marked, as the plan was to
perform surgery only on that foot.
(viii) The WHO-Check list, though, showed a marking made on the left
side, the case record at page 52 showed that certain parts had been scored
out. According to the DMC, both suggested tampering of records.
(ix) No consent of Mr. Rai was obtained, prior to the surgery with regard
to the possibility of the operation being performed on the left foot. The
DMC found that there was "un-displaced" fracture calcaneus on the left
foot, which would have united or fused after eight (8) weeks, even if surgery
was not performed.
(x) Dr. Maichand had admitted before the DMC that he and Dr. Kakran
worked as a team and that even before the surgery, a decision was taken by
the two of them to operate the left foot, in case excessive swelling was
found on the right foot. It was also found by the DMC that Dr. Maichand
had not conveyed this aspect either to Mr. Rai or the Anaesthetist, Dr.
Yatish Sharma.
23) Given these findings of fact, what is required to be considered is the
following issues: First, whether MCI was right in exonerating Dr. Maichand
completely? Secondly, whether punishment accorded to Dr. Kakran
commensurated with the extent of its culpability?
24) Insofar as the first issue is concerned, in my view, the MCI was
wrong in exonerating Dr. Maichand, completely. What has come to fore
clearly, is that, Dr. Maichand was a senior doctor, under whose care and
supervision, Mr. Rai had been admitted for treatment. The initial diagnostic
test carried out on Mr. Rai had been seen by Dr. Maichand.
24.1) Therefore, knowledge would have to be attributed to Dr. Maichand,
with regard to the fact that Mr. Rai had suffered a comminuted fracture on
the right foot and a hairline fracture on the left foot and spine.
24.2) It has also emerged from the findings recorded by the DMC that Dr.
Maichand and Dr. Kakran had agreed, even prior to the surgery, that if
swelling was found in the right foot, surgery would be performed on the left
foot. It has further been brought to fore that this aspect of the matter was
neither disclosed to Mr. Rai or the Anaesthetist, Dr. Yatish Sharma.
Therefore, the fact that Dr. Maichand was not present during the course of
surgery, for whatever reason, cannot completely efface his culpability in the
matter. Dr. Maichand, as a senior doctor, owed duty of care to Mr. Rai.
The fact that he failed to discharge that obligation is evident from the
following:
(i) He failed to clinically examine Mr. Rai even when he complained of
back pain and the X-ray showed that he had fractured his spinal cord.
(ii) He did not convey to the Physiotherapist i.e., Ms. Dipti Jha the fact
that Mr. Rai had fractured his backbone and his left leg.
(iii) He did not ensure, the fact that Mr. Rai had fractured his backbone,
was communicated to the Anaesthetist, Dr. Yatish Sharma.
(iv) Assuming that a decision was taken, even prior to the surgery by Dr.
Maichand in consultation with Mr. Kakran, that in case swelling was found
on the right foot on the day of surgery, the surgery would, instead be
performed on the left foot (which, to my mind was a false stand taken to
justify the surgery on the left foot), was a decision which was not
communicated to Mr. Rai.
(v) At no stage, did Mr. Maichand communicate to Mr. Rai that instead
of him, Dr. Kakran would be performing the surgery.
25) As a result of these acts of omission and commission, Dr. Maichand,
in my view, not only contributed to the avoidable trauma but also to the
surgery being performed on Mr. Rai‟s left foot, which as per findings
recorded by the DMC, would have healed after eight weeks, even if no
surgery was performed. An aspect which was not disputed by Dr. Maichand
in his deposition before the DMC. Furthermore, as alluded to above, Dr.
Maichand‟s negligence, exposed Mr. Rai to trauma of not only having to
undergo the surgery, which was not required to be done, including screws
being inserted in the left foot which would have healed, even otherwise,
naturally within eight (8) weeks, but was also, exposed him to the danger
and after effects of receiving anaesthesia in a fractured spinal cord and
undergoing physiotherapy sessions.
26) Therefore, for the foregoing reasons, I am unable to persuade myself
that the decision of the MCI, insofar as Dr. Maichand was concerned, was
correct. The MCI has, in fact, glossed over the findings of fact, recorded by
the DMC, in its order. Thus, I am inclined to set aside MCI‟s order dated
23.08.2017, insofar as Dr. Maichand is concerned.
27) As regards Dr. Kakran, the only grievance of Mr. Rai is with regard
to the punishment accorded to him. In this context, I had asked Mr.
Singhdev, who made submissions on behalf of the MCI, as to whether any
policy had been formulated by the MCI, with regard to punishments to be
accorded to delinquent doctors for infractions committed by them.
28) Mr. Singhdev informed me that no such policy had been formulated.
In my opinion, this aspect needs to be looked at, urgently, by MCI. MCI
must have a sentencing policy in place for guidance of its Committees
which are tasked with job of returning recommendations both, on the guilt
and punishment to be accorded to a delinquent doctor. The sentencing
guidelines should take into account the aggravating and mitigating
circumstances, including but not limited to whether or not the delinquent
doctor is a first time offender or a repeat offender. MCI, is directed to
report on this aspect of the matter within the next three months.
29) Having said so, in my view, the best judges of the conduct of a
professional are his peers. The only area available to a Court for interfering
with the punishment accorded to a delinquent doctor by his peers is where
the punishment given is grossly inadequate or grossly disproportionate.
(See:- Ranjit Thakur Vs Union of India and Ors., (1987) 4 SCC 611. )
29.1) I am not able to persuade myself that Dr. Kakran's case falls within
the aforementioned parameters. Besides this, a Single Judge of this Court
has already dismissed the writ petition preferred by Dr. Kakran, albeit,
without giving notice to Mr. Rai, qua which no appeal has been filed.
Therefore, insofar as Dr. Kakran is concerned, in my view, nothing further
needs to be done, as regards the punishment which has been accorded to
him by MCI.
29.2) This, of course, will not prevent Mr. Rai from seeking recourse to
other remedies that may be available to him in law qua Dr. Maichand and
Dr. Kakran, including compensation for the injury caused to him.
30) In these circumstances, W.P. (C) No. 10506/2017, in which relief is
sought against Dr. Kakran, is dismissed.
30.1) However, W.P. (C) No.10625/2017 is allowed, and the matter is
remanded to the MCI on the issue of quantum of punishment. The MCI,
will hear the matter afresh and while doing so, will give adequate
opportunity to the parties concerned, including Mr. Rai and Dr. Maichand.
The MCI, will complete this exercise at the earliest, though, not later than
eight (8) weeks from the date of receipt of a copy of the order.
31) Furthermore, given the fact that Mr. Rai had to go surgery for his
right foot at the Max Hospital, Shalimar Bagh, I am inclined to award cost
of Rs.1 lakh. The Cost will be borne by Dr. Maichand and will be paid
within a period of two weeks from the date of receipt of a copy of the order.
32) List on 20.11.2018 for compliance by MCI, with respect to directions
contained in Paragraph 28 above.
RAJIV SHAKDHER
(JUDGE)
AUGUST 20, 2018
A
