Dr. MC Gupta, a medicolegal expert and physician, puts forth the pros and cons of various platforms- medical councils, courts, tribunals, for medical negligence cases.

QUESTION—How do you compare the various platforms for deciding complaints of medical negligence?

ANSWER:

1--No published study is available to compare the outcomes of a complaint of medical negligence filed before a consumer forum as well as before a medical council / magistrate. Such an analytical data based study is certainly needed.

2—I may summarise my 19 years’ experience in this area as follows:

i)-- Medical negligence cases filed before medical councils have an unacceptably high chance of a wrong order being passed. The reason is that the cases in medical councils are decided by a group of doctors who lack even basic knowledge of law. Some examples of such wrong decisions, later quashed by higher courts, are given below.

a)— An interesting example of malfunctioning on the part of the State Medical Council (SMC) and the MCI is given below.

The Delhi High Court passed the following final order dated 13-04-2010 in writ petition no. WP(C) 4438/2008 titled as Dr. Saroj Jain v. MCI and Ors., which was decided against the MCI..

“In the considered view of this court, the appropriate course for the MCI to have adopted was to have referred the letter of the Commissioner of Police in the first instance to the DMC for its decision. Thereafter, the party aggrieved could have appealed to the MCI. There was no question of the MCI directly dealing with the complaint, bypassing the DMC”. (Para 3 of the order).

What had happened in this case was that the complainant complained to the police and the Delhi Medical Council alleging that the treating doctor committed negligence which caused the death of his wife who died of Post-Partum Hemorrhage on 09-04-2007. Police referred the case to the MCI for opinion as to whether there was negligence. The MCI held on 21-05-08 that there was negligence and removed the doctor’s name from the Indian Medical Register for 2 months. The accused doctor approached the Delhi High Court alleging that the MCI acted without jurisdiction since she was registered with the Delhi Medical Council and it was the DMC which should have decided the complaint of medical negligence, so that, if aggrieved by its decision, she could come in appeal before the Appellate Authority MCI. Subsequent to the order dated 13-04-2010 passed by the High Court, the DMC decided the complaint and by an order dated 08-07-2010, found that there was negligence and removed the doctor’s name from the State Medical Register for 3 months. It did not follow proper procedure and did not give proper hearing. Interestingly, on the same facts in the same case, on appeal against the order of the DMC, the MCI, where I argued the case, passed an order dated 03-02-2011 holding that there was no negligence. This case illustrates beautifully the arbitrary nature of proceedings by the medical councils in many cases. In the present case, the MCI gave two decisions in this case. As per the first decision dated 21-05-08, (which was passed without jurisdiction), it found negligence. As per the second decision, (which was passed in its appellate jurisdiction), it found no negligence.

b)—On 28th September, 2004, the Delhi Medical Council passed an order no. DMC/14/2/Comp.100/2004/ on a complaint by one Shri S.S. Bedi against doctors of the Dr. Sharma Nursing Home, where he alleged that his father had died because of medical negligence. As per the facts of the case (as written in the medical record but not reflected in the order itself), the patient, a 70 years old man, had been given 5000 mg. of the drug Lasix by intravenous bolus injection, 1000 mg. every two minutes over 10 minutes. He died within an hour. The medically correct dose to be given is only 20-40 mg. of the drug. An excessive dose was given which caused the death. However, this fact is nowhere mentioned in the order passed by the DMC and the medical council gave a finding that there was no negligence. [I had been engaged as advocate on behalf of the accused doctor and had access to medical records.]

c)—In an alleged case of medical negligence regarding the treatment of the complainant’s 12-year-old son who was subjected to appendicectomy on 12-01-2003 at the OP-1 hospital, anesthesia was given by OP-4 anesthetist. Later, the child developed complications and died on 22-03-2003 in another hospital. Post mortem was done. It revealed that the patient had abnormality in the heart. The heart was enlarged and dilated and the interventricular septum and right ventricle were thickened. These abnormalities show that the patient had a serious long pre-existing heart disease called hypertrophic cardiomyopathy which is known to be asymptomatic and whose first clinical manifestation may be sudden death according to Harrison’s “Principles of Internal Medicine”.

The child’s father thought that there was medical negligence and he filed three complaints with the following outcomes:

A medical council complaint dated 11-8-2003 was filed at Delhi Medical Council. The DMC passed an order dated 10-12-2003 and held that the anesthetist was negligent. The DMC did not consider at all the post mortem findings which showed that the child had a major congenital heart pathology. The accused doctor filed an appeal before the Appellate Authority Government of India under section 24(1) of the Indian Medical Council Act, 1956, but the appellate authority did not take any action. Hence the accused doctor had to approach the Delhi High Court by way of a C.W.P. No. 885 /2004 titled as Dr. D. K. Rawat V. Delhi Medical Council & Ors. . The High Court disposed of the Writ Petition by directing the MCI to decide the issue. The MCI Ethics Committee, at its meeting held on 3rd and 4th January, 2005, held that there was no negligence and set aside the order of the Delhi Medical Council.

--A police complaint was filed which was converted into an FIR (FIR no. 48/2003 dated 1-2-2003 at PS Vikaspuri, Delhi) on the basis of the finding of negligence by the Delhi Medical Council. Ultimately, the accused doctor was acquitted from the criminal case on the basis of acquittal by the MCI.

-- A consumer complaint no. C-106/2003 was filed in the Delhi State Consumer Commission claiming an amount of Rs. Fifty lakh. I argued in favour of the anesthetist. The complaint was dismissed on 14.01.2019 on the basis of the acquittal by the MCI and other expert opinions.

d)—A doctor had a PG qualification in psychiatry which he had not got registered in the medical register as an additional qualification against his name. The the Ethics Committee of MCI held that he was guilty of professional misconduct and decided to remove his name from the Indian Medical Register for a period of one year. The doctor filed a Writ Petition no. W.P.(C) 8131/2017 titled as Dr. Nikhil Raheja vs Medical Council Of India And Ors. On 19 July, 2019, the Delhi High Court set aside the order passed by the MCI.

https://indiankanoon.org/doc/140248115/

ii)—Consumer complaints are often heard by benches having a judicial member (usually a retired judge) and hence there are higher chances that the decision would be in accordance with law.

iii)—Police complaints are ultimately decided by a regular court as per the provisions of IPC / CrPC and general principles of law and are, by and large, correct and within the boundaries of law and justice. Well known leading cases dealing with criminal medical negligence are the Jacob Mathew case and the Suresh Gupta case.

Disclaimer- The views and opinions expressed in this article are those of the author's and do not necessarily reflect the official policy or position of M3 India.

Content from the writer has been directly replicated on the website. No edits have been made.

The writer, Dr. MC Gupta is a practising lawyer specialising in medical negligence cases. He also has an MD Medicine from AIIMS, Delhi where he also worked as a faculty member for 18 years, later working another 10 years as a Professor and Dean at National Institute of Health and Family Welfare, New Delhi, before pursuing law.