Morning MEDtalks with Dr K K Aggarwal

New Delhi,August 27, 2018

Delhi High Court has directed MCI to frame sentencing policy for delinquent doctors

Advocate Ira Gupta: In the matter titled as “Ravi Rai versus Medical Council of India, WP (C) No.10506/2017 and WP(C) No. 10625/2017”, the Hon’ble High Court of Delhi vide order dated 20.08.2018 has directed Medical Council of India (MCI) to frame sentencing policy for delinquent doctors for the infractions committed by them and the said sentencing policy shall be a guidance for the Committee which are tasked with job of returning recommendations both, on the guilt and punishment to be accorded to a delinquent doctor.

Facts of the case

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.
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.
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.
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.
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.
The anaesthetist, Dr. Yatish Sharma, was also informed only about the fracture in the right foot.
Prior to the surgery, the right foot was marked, as the plan was to perform surgery only on that foot.
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.
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.
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.

Issue before the Hon’ble High Court of Delhi

First, whether MCI was right in exonerating Dr. Maichand completely?
Secondly, whether punishment accorded to Dr. Kakran was commensurate with the extent of its culpability?

Judgment of Hon’ble High Court

“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.”

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Dr KK Aggarwal
Padma Shri Awardee
Vice President CMAAO
President HCFI