Kiran Kumar Mahajan vs Public Health And Family Welfare ...
2022 Latest Caselaw 13556 MP

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                                                         W.A. No. 912/2022



         IN THE HIGH COURT OF MADHYA PRADESH
                            AT INDORE
                               BEFORE
               HON'BLE SHRI JUSTICE VIVEK RUSIA
                                  &
       HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

                  WRIT APPEAL No. 912 of 2022

  BETWEEN:-
  KIRAN KUMAR MAHAJAN D/O LATE SHRI PANDURANG
  MAHAJAN, AGED ABOUT 43 YEARS, OCCUPATION: SERVICE 48,
  SHIVSHAKIT NAGAR DISTRICT INDORE (MADHYA PRADESH)
                                                     .....APPELLANT
  (SHRI KIRAN KUMAR MAHAJAN, PETITIONER IN PERSON.)

  AND
   PUBLIC HEALTH AND FAMILY WELFARE DEPARTMENT
1. THROUGH PRINCIPAL SECRETARY VALLABH BHAWAN
   DISTRICT BHOPAL (MADHYA PRADESH)
   DIRECTOR DIRECTORATE HEALTH SERVICE SATPURA BHAWAN
2.
   BHOPAL (MADHYA PRADESH)
   CHIEF MEDICAL AND HEALTH OFFICER DISTRICT INDORE
3.
   (MADHYA PRADESH)
                                                  .....RESPONDENTS
  (SHRI AKASH SHARMA, LEARNED GOVT. ADVOCATE                        FOR
  RESPONDENTS/STATE)
  (MS. MINI RAVINDRAN, LEARNED AMICUS CURIAE)


This appeal coming on for hearing this day, JUSTICE VIVEK
RUSIA passed the following:
                               ORDER

(Passed on 14th October, 2022) The appellant/petitioner has filed the present writ appeal against the order dated 6.5.2022 whereby the writ petition has been disposed of reserving liberty to him to avail such legal remedy as may be

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available to him under the law.

Brief facts of the case are as under:

1) The petitioner admitted his father to the CHL Hospital as he was suffering from the ailment. He was diagnosed with a heart-related problem hence the Doctors advised him to undergo by-pass surgery in CHL Hospital, Indore. It appears that due to post-operative complications he expired on 1.2.2019.

2) The petitioner made a complaint to the respondents alleging negligence on the part of the CHL Hospital, That the surgery was performed by an inexperienced and incompetent doctor which is the main cause of the death of his father. The petitioner is also suspecting the actual date and time of the death of his father as he had died in the operation theatre but this fact was hidden from him and other family members by the hospital management. On a complaint made by the petitioner alleging gross negligence, the Chief Medical & Health Officer, Indore constituted a 3-members Committee to submit the report. As per the opinion of the Committee, the patient was an elderly (73 years) male with other coronary risk facts viz. Diabetes, hypertension and he died due to cardiac arrest. The aforesaid opinion was given by the Committee on the basis of available documents only.

3) Being dissatisfied with the above report the petitioner filed the writ petition before this Court seeking direction to conduct a fresh inquiry and to take appropriate action against the CHL Hospital as well as against the erring Doctor.

4) The reply was filed by the respondents and after considering the documents and the report, the Writ Court has prima facie found that the death of the petitioner's father was due to cardiac failure and not due to the negligence on the part of the treating Doctor. Learned Writ

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Court also observed that in the exercise of jurisdiction under Article 226 of the Constitution of India, this Court cannot enter into a fact- finding inquiry as regards the correctness or otherwise of the report. However, liberty has been granted to the petitioner to avail the remedy available to him under the law.

Being aggrieved by the aforesaid order, the petitioner has preferred the present writ appeal before this Court.

5) Although the petitioner is seeking fresh inquiry in respect of negligence on the part of the treating Doctor as well as against the CHL Hospital, but both of them have not been impleaded as respondents in the writ petition as well as in this writ appeal, therefore, no direction can be given behind their back. However, this Court vide order dated 23.8.2022 directed the learned Govt. Advocate appearing for respondents/State to address the Court on the issue of control of the State Government over the private hospitals. This Court also appointed Ms. Mini Ravindran, Advocate as amicus curiae to assist the Court as the petitioner is appearing in person.

6) Ms. Mini Ravindran learned counsel submitted that the State Government has enacted the law called M.P. Upcharyagriha Tatha Rajopachar Sambandi Sthapanaye (Registrikaran Tatha Anugyapan) Adhiniyam, 1973 and according to which, no person is permitted to carry on Nursing Home or the Clinic without being registered and in accordance with the terms of the license granted to it. Section 4 provides the procedure for submitting an application to the supervising authority for registration and the supervising authority to grant a certificate of registration or license to a registered nursing home or clinic. Section 5 provides cancellation of registration and license. The power of inspection and imposition of penalty has also

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been given under this Section. The State Government has also framed the rules under the aforesaid enactment called M.P. Upcharyagriha Tatha Rajopachar Sambandi Sthapanaye (Registrikaran Tatha Anugyapan) Rules, 1997. It is further submitted that the learned Writ Court has rightly dismissed the writ petition as a private body like CHL Hospital is not amenable to the writ jurisdiction of this Court. In support of her contention, she has placed reliance on the judgment of the apex Court in the case of Ramakrishna Mission and another V/s. Kago Kunya & others : (2019) 16 SCC 303.

7) Learned Govt. Advocate appearing for the respondents/State has also produced a copy of a letter dated 9.10.2019 written by the Director, Health Services to Chief Medical & Health Officer, Indore stating that the report is not satisfactory and that the Specialist has not clarified as to whether there was any negligence on the part of the CHL Hospital. Thereafter, no action has been taken on the aforesaid letter.

After having heard the learned counsel for the parties we have perused the material available on record.

8) Learned Writ Court has prima facie given an opinion that there is no negligence on the part of the Doctor in conducting the surgery/operation. The aforesaid finding is based on the report submitted by 3 Doctors' committee. The report of the committee is reproduced below :

"Patient was an elderly (73 year) male with other coronary risk factors viz diabetis, hypertension. He suffered from anterior wall stemi on 15-01-2019 for which he was thrombolysed and treated at GHRC (Details not available). His coronary Angiography done at GHRC on 17-01-2019 had revealed left main coronary disease as wall as triple vessel disease (Angio C.D not available) He had iv dysfunciton (ivef35%). He was co-

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managed by Dr Nikhilesh Jain, pre-operatively (page No.51) from 24-01-2019 as he had comorbid conditions viz chest infection and acute kidney injury. CABG was indicated in view of CAD, left main disease, triple vessel disease, LV Dysfucniton. He was a high surgical risk patient as he was diabetic, hypertensive and had AK and Chest infection. He underwent CABG (Page No.12) on 31-01-2019 after informed high risk consent. Post operatively patient had cardiogenic shock and died after cardiac arrest on 01-02-2019, despite high Inotrops and ventilatory support.

The opinion is based on available documents only."

9) We are not complacent with the aforesaid report submitted by 3 members' committee. It is apparent from the aforesaid report that none of the members of the committee is a Cardiac Surgeon. Out of three members, two are professors in Medicine and one is Professor in Anesthesia. The opinion was given on the basis of the treatment sheet provided by the Hospital, the committee did not record the statement of the petitioner or other relatives of the deceased. Therefore, the said report is not a conclusive document to give a clean chit to the CHL hospital, hence we set aside such findings recorded by the writ court. ]

10) Learned Writ Court has rightly observed that the issue of negligence cannot be decided in a writ petition under Article 226 of the Constitution of India. The petitioner is having remedy to approach Consumer Forum or can make a complaint to the State Medical Council. So far as the Act of 1973 and the Rules of 1997 (as above) are concerned, they are only in respect of issuance of the certification of registration and license and their cancellation. There is no provision in the aforesaid Act and the Rules for the initiation of any inquiry in respect of negligence on the part of the Doctor or a hospital.

11) With the aforesaid, this writ appeal is disposed of with the liberty to the petitioner to avail the remedy as available to him under

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the law.

We appreciate the assistance given by Ms. Mini Ravindran learned counsel as amicus curiae.

         [ VIVEK RUSIA ]      [AMAR NATH (KESHARWANI)]
             JUDGE.                   JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.10.14 19:05:01 +05'30'