Delhi High Court

Dr Ashwani Maichand vs Ravi Rai & Ors on 28 November, 2018

    * IN THE HIGH COURT OF DELHI AT NEW DELHI
    %                          Date of decision: 28th November, 2018


+    LPA 580/2018, CM Nos.42580-42582/2018

     DR ASHWANI MAICHAND                       ..... Appellant
                    Through: Mr. Nagendar Rai, Sr. Adv. with
                             Mr. Abinash Kumar & Mr. Manoj
                             Kumar, Advs.
             versus



     RAVI RAI & ORS                                    ..... Respondents
                        Through:     Mr. Abhinav Shrivastava, Adv. with
                                     Mr. Rahul Gupta & Ms. Sana Kamra,
                                     Advs. for R-1
                                     Mr. Praveen Khattar, Adv. for R-
                                     3/DMC

     CORAM:
     HON'BLE THE CHIEF JUSTICE
     HON'BLE MR. JUSTICE V. KAMESWAR RAO

    V. KAMESWAR RAO, J. (ORAL)

CM Nos.42581-42582/2018

Exemption allowed subject to all just exceptions. Application stands disposed of.

LPA 580/2018

1. The challenge in this appeal by Dr. Ashwani Maichand is, to

the order / judgment dated August 20, 2018 passed in W.P.(C) No.

10625/2017. Suffice it to state, vide the order / judgment dated

August 20, 2018, the learned Single Judge has decided two writ

petitions being W.P.(C) Nos. 10506/2017 and 10625/2017 both

filed by Mr. Ravi Rai.

2. The two writ petitions were filed by Mr. Ravi Rai against

the Medical Council of India and two surgeons namely Dr. Rahul

Kakran and Dr. Ashwani Maichand (the appellant herein). Mr. Ravi

Rai's grievance was qua the order dated August 23, 2017 passed by

the Medical Council of India whereby it had exonerated the

appellant herein from culpability, during the treatment of Mr. Rai,

which led to the operation of his left foot instead of right foot.

3. The facts as noted from the record are in the evening of June

19, 2016, Mr. Rai slipped from the stairs of his house, which

resulted in injuries being inflicted on both his legs as well as his

lower back. He was rushed to Fortis Hospital, located at Shalimar

Bagh, New Delhi. He 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 June

20, 2016. Accordingly, X-rays were conducted on Mr. Rai's left leg

and backbone. A CT scan was done of Mr. Rai's right leg and

backbone. Upon examination of the results of the 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. Insofar as the left leg

and spine were concerned, it was suggested to him that he should

undertake physiotherapy. The aforesaid advice was given by the

appellant. Mr. Rai underwent physiotherapy twice. The record of

X-ray, as noted by the learned Single Judge, showed that though

Mr. Rai had fractured his spine, information qua this aspect was not

given to him. Further, as advised, Mr. Rai was prepared for surgery

on June 20, 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.

4. The learned Single Judge also noted that the record showed

that despite Mr. Rai having fractured his spine, he was administered

anaesthesia via the spinal cord by Dr. Sharma. Post surgery, when

Mr. Rai had recovered from anaesthesia, he discovered that instead

of his right foot, his left foot had been operated upon. The surgeon

Dr. Kakran, who had performed the surgery, had inserted the screws

in Mr. Rai's left foot. Having discovered the error, Mr. Rai took

discharge from Fortis Hospital and got himself admitted in Max

Hospital, Shalimar Bagh, New Delhi, for getting his right foot

operated. The FIR No.424/2016, dated June 22, 2016, was

registered in Police Station Shalimar Bagh, under Sections 336, 338

& 34 of the Indian Penal Code, 1860 against the delinquent doctors.

Parallelly, the Disciplinary Committee of the DMC, based on media

reports, representation of the police and on the complaint of Mr.

Rai's father, commenced its proceedings.

5. The findings of the Disciplinary Committee were against the

appellant. The DMC accepted the findings of the Disciplinary

Committee and recommended that the name of the appellant be

removed from the State Medical register of the DMC for a period of

180 days after the expiry of 30 days from the date of the order.

6. Aggrieved by the order passed by the DMC, the appellant

filed an appeal before the Medical Council of India. The Medical

Council of India vide its order dated August 23, 2017, exonerated

the appellant 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 of

the view that the appellant 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.

7. The learned Single Judge, on the basis of analysis of the

record, found the following findings of fact:-

(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."

8. On the issue, whether the appellant could have been

exonerated completely, the learned Single Judge has, in paras 24 to

26 held as under:-

"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."

9. Mr. Rai learned Senior Counsel appearing for the appellant

would reiterate the only submission as was made on behalf of the

appellant before the learned Single Judge that the appellant was not

present in the operation theatre when the operation had taken place.

We are unable to agree with the said submission of Mr. Rai. There

is no dispute that the appellant was a Senior Doctor, under whose

care and supervision Mr. Ravi Rai was admitted for treatment. Mr.

Rai was examined first by the appellant only. The conclusion of the

learned Single Judge was that the appellant owed a duty of care to

Mr. Ravi Rai and he has failed to discharge the said obligation. In

other words, the acts of omission and commission on the part of the

appellant are not confined to the operation only but also as a treating