Delhi High Court
Dr Nevin Kishore vs Medical Council Of India And Ors on 17 July, 2018
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 17.07.2018
+ W.P.(C) 6145/2017
DR NEVIN KISHORE ...Petitioner
Versus
MEDICAL COUNCIL OF INDIA AND ORS ...Respondents
Advocates who appeared in this case:
For the Petitioner :Mr Kapil Kher and Mr Sukhija Akbar
Warsi.
For the Respondents :Mr Vikas Singh, Sr Advocate with Mr T.
Singhdev, Mr Tarun Verma, Ms Puja Sarkar,
Mr Abhijit and Ms Manpret Kaur for R-
1/MCI.
Mr Praveen Khattar with Mr Bapi Das for R-
4/DMC.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The petitioner has filed the present petition, inter alia,
impugning the order dated 25.05.2017 (hereafter „the impugned
order‟) passed by the Medical Council of India (hereafter „MCI‟),
whereby MCI has enhanced the punishment imposed on the petitioner
by the Delhi Medical Council (hereafter „DMC‟) and directed removal
of the petitioner‟s name from the State Medical Register for a period
of one year.
2. The impugned order was passed in an appeal preferred by
respondent no.3 (hereafter „the complainant‟) against an order dated
08.07.2015 passed by the Delhi Medical Council (hereafter „DMC‟).
3. The petitioner is a qualified doctor. He had completed MBBS
course from AIIMS and received his post graduate and specialist
training in General Medicine and Respiratory Medicine in United
Kingdom. The petitioner was registered with DMC in 2002. At the
material time, the petitioner was working at the Max Super Speciality
Hospital, Saket.
3.1 The allegation against the petitioner relates to the medical
negligence of the treatment of one Mr Kshitij Mathur (the Patient).
The Patient was under the treatment of one Dr Hemant Tiwari of
Fortis Hospital since September 2009. Dr Tiwari had prescribed PFT
Test, which was done and thereafter, Dr Tiwari diagnosed that the
Patient was suffering from Bronchial Asthma. The Patient was a
minor at the material time and his father had consulted Dr Tiwari, as
the Patient was suffering from chronic cough. The medicines
prescribed by Dr Tiwari did not alleviate the condition of the Patient
and he continued to suffer.
3.2 The Patient‟s problem got aggravated in January 2013. Since
the medicines prescribed by Dr Tiwari had not resulted in any
effective relief, the Patient‟s father (the complainant) took him to
consult the petitioner. The petitioner examined the Patient in his clinic
on 18.02.2013 and his diagnosis was that the Patient was suffering
from seasonal allergy, wheezing, no fever and cough. The petitioner
then prescribed medicines which were to be administered for seven
days and advised the patient to revisit him on 25.02.2013.
3.3 It is stated that on 25.02.2013, the condition of Kshitij Mathur
got worsened and, therefore, the complainant (Kshitij Mathur‟s father)
once again got in touch with the petitioner who advised him to meet
him at the Max Hospital, Saket, New Delhi. The petitioner once again
examined the Patient on 25.02.2013 and advised that Chest X-Ray to
be done. The X-Ray of the chest was done immediately. Although, the
petitioner states that only the wet film was shown to him; there is no
dispute that the said X-Ray was shown to the petitioner. The
complainant had also stated that the X-Ray done at Max Hospital was
examined by the petitioner.
3.4 After examining the X-Ray, the petitioner had informed the
complainant that the chest was absolutely clear and the problem was
on account of acute allergy. The petitioner diagnosed the problem as
cold cough, no fever, no asthma, no wheeze. On the basis of the
aforesaid diagnosis, the petitioner prescribed the following medicines:
(i) Foracort 200-2 puffs, twice a day; (ii) Omnacotrli 10 mg-1 tab,
three times a day; and (iii) Zedex syrup - two table spoon, twice a day.
The complainant stated that after taking the said medicines, there was
a slight improvement in his condition for a couple of days but the
same was not appreciable.
3.5 On 02.03.2013, the Patient had problem in breathing and could
not sleep during the night. There was swelling on his face and legs
and his condition had worsened.
3.6 On 03.03.2013 − which was a Sunday - the Patient‟s mother
rang up the petitioner at about 09:00 a.m. and informed him of the
Patient‟s condition. However, the complainant states that the petitioner
refused to tender any advice and stated that he did not take any calls
on a Sunday.
3.7 On 04.03.2013, the complainant took his son to Dr Deepak
Talwar, who after examining the report and the X-ray done at Max
Hospital, Saket advised that an Echo Cardiograph, X-ray of the Chest
and PFT be done immediately. Dr Deepak Talwar then informed the
complainant that the Patient did not have any respiratory problem but
his heart was enlarged.
3.8 The complainant was advised to get in touch with a cardiologist
immediately as his son‟s condition was quite critical and serious. The
complainant then took his son to Metro Heart Institute where the
attending doctor - Dr Upansani - informed the complainant that there
was retention of fluid in the patient‟s body due to which there was a
pressure on the heart and he was not able to breathe. The patient was
kept in ICCU for seven days, that is, from the evening of 04.03.2013
till 11.03.2013 morning. During which, about 22 litres of fluid was
flushed out and the patient‟s weight was came down by about 20 kgs.
3.9 It is in the aforesaid factual context, the complainant filed a
complaint with the DMC.
4. The complaint was considered by the Disciplinary Committee
of DMC. The petitioner appeared before the Disciplinary Committee
and contended that cardiomegaly is a radiological diagnosis and not a
clinical diagnosis. He stated that he had only seen a wet film of the X-
Ray and did not have the benefit of the X-Ray report. The Disciplinary
Committee of the DMC did not accept the said explanation and held
that although the petitioner had acted prudently by advising chest X-
Ray, he had erred in overlooking the presence of cardiomegaly
which was evident from the chest X-Ray film. The Disciplinary
Committee of DMC thereafter recommended that a warning be
issued to the petitioner with further direction that he should
undergo ten hours of Continuing Medical Education (CME) on
the subject of radiology relating to interpretation of X-Rays and
submit a compliance report to the said effect to the DMC. The
said recommendations of the Disciplinary Committee of DMC
were considered and confirmed by the DMC on 03.02.2015.
5. The petitioner did not file any appeal against the findings of
the DMC. But, the Complainant - being dissatisfied with the
quantum of punishment imposed on the petitioner and Dr.
Hemant Tiwari - preferred an appeal before the MCI. The Ethics
Committee considered the said appeal and recommended
enhancement of the punishment imposed on Dr Hemant Tiwari
and the petitioner by removing their names from the Medical
Register for a period of one year.
6. The said recommendations were accepted by the Executive
Committee of MCI on its meeting held on 11.04.2017 and the
said decision was communicated to the petitioner by the
impugned order.
7. Mr Kher, the learned counsel appearing for the petitioner
submitted that the Ethics Committee had grossly erred in
enhancing the punishment imposed on the petitioner as there was
no negligence on the petitioner‟s part. He earnestly contended
that the petitioner was a physician by training and could not be
penalised for the reading of an X-Ray that fell within the scope of
specialised radiologist. He further referred to the impugned order
and contended that the operative part of the recommendations
made by the Ethics Committee of MCI (as reproduced in the
impugned order) clearly indicated that the Ethics Committee had
proceeded that the petitioner was treating the Patient for a "long
time". He stated that the Ethics Committee had erred in not
differentiating between Dr Hemant Tiwari and the petitioner. He
contended that whilst the other doctors had treated the Patient for
almost three years, the petitioner had only examined the Patient on
two occasions. Further, the Patient had not come back with the X-Ray
to take his advice.
8. This Court finds no merit in the contention that the petitioner is
not guilty of medical negligence in the treatment of the Patient. First
of all, the petitioner had not preferred any appeal against the decision
of the DMC, whereby the petitioner was found guilty of medical
negligence. On the contrary the petitioner had accepted the aforesaid
finding. Thus, it is not open for the petitioner to now assert that
DMC‟s finding was erroneous. The facts of the case, which are not in
dispute, also clearly indicate that the petitioner had failed to diagnose
that the Patient was suffering from cardiomegaly. The Disciplinary
Committee of DMC after examining the facts had concluded that
the petitioner had "erred in overlooking the presence of
cardiomegaly which was very evidence in the chest X Ray film".
9. The contention that the petitioner cannot be penalized for not
reading an X-Ray film, as that falls within the scope of specialized
radiologist, is plainly unmerited. The Regulations on Graduate
Medical Education, 1997 issued by the Medical Council of India
clearly indicates that a MBBS student is required to have the
necessary skill to interpret the common X-Ray and also to advice
appropriate diagnostic procedure in specialized circumstances to
appropriate specialist. The petitioner‟s contention that he was not
required to or competent to understand the X-Ray has not been
accepted either by DMC or by MCI.
10. The next question that needs to be addressed is with regard to
the quantum of punishment. The Ethics Committee of MCI had found
that the allegation made against the petitioner with respect to medical
negligence was correct. However, the observations that Dr Tiwari and
the petitioner had misguided and wrongly treated the Patient for a long
time is not entirely accurate as the patient was not under the treatment
of the petitioner for a "long time". Thus, it would have been apposite
for the Ethics Committee to have considered the issue as to the
quantum of punishment in respect of the petitioner separately from Dr
Tiwari. It is possible that the Ethics Committee could have concluded
that the medical negligence on the part of the petitioner was not to the
same extent as that of Dr Tiwari.
11. In view of the above, this Court was inclined to remand the
matter to MCI to consider the question as to the quantum of
punishment imposed on the petitioner. But this is no longer feasible as
the petitioner has already undergone the entire term of his punishment.
12. In view of the above, the petition is dismissed. The parties are
left to bear their own costs.
VIBHU BAKHRU, J
JULY 17, 2018
RK
