Bombay High Court
Raghunath G. Raheja vs The Maharashtra Medical Council And ... on 11 January, 1996
Equivalent citations: AIR1996BOM198, AIR 1996 BOMBAY 198, (1996) 2 ALLMR 1 (BOM), (1996) 1 MAH LJ 687, (1996) 2 ICC 367, (1996) 3 BOM CR 214
Author: M.B. Shah
Bench: M.B. Shah
ORDER A. V. Savant, J.
1. Heard all the learned counsel.
2. The petitioner Raghunath Raheja seeks to challenge the resolution passed by the first respondent Maharashtra Medical Council exonerating the two medical practitioners respondents Nos. 3 and 4 of the charge of negligence in attending to his wife Mrs. Bhagwati. The petitioner is also seeking certain general directions against the Maharashtra Medical Council. The petitioner's wife was admitted to the Dr. Balobhai Nanavati Hospital, Vile Parle, Bombay (for short, 'Nanavati Hospital') on 18th October 1989. She had complained of a heart ailment viz., "acute left ventricular failure" and "diabetes mallitus" and after necessary treatment she was discharged on 27th October 1989. She was re-admitted in the said Hospital on 22nd November 1989 and was referred to the third respondent Dr. Pahla-jani, who is a cardiologist and in consultation with the fourth respondent Dr. Sharad Pande, who is a heart surgeon, it was decided to operate upon her for a bypass. Accordingly, on the 7th December 1989 bypass surgery was performed by the fourth respondent Dr. Pande and after necessary treatment, she was discharged on 18th December 1989. It appears that thereafter she suffered rnyocardial infraction and despite treatment being given to her, she expired on 23rd January 1990.
3. The petitioner approached the first respondent Council with a complaint of negligence and malpractice by the two doctors, viz., respondents Nos. 3 and 4. He has also filed a suit for damages against the concerned doctors, claiming Rs. 5 lakhs, which suit is pending on the original side of this Court. He then approached this Court by way of Writ Petition No. 1161 of 1991. When that petition came up for hearing as to admission, it was stated on behalf of the first respondent Medical Council that the Executive Committee of the Medical Council was considering the complaint filed by the petitioner to the Medical Council alleging negligence by doctors respondents Nos. 3 and 4 and that the entire material was to be considered at the meeting of the said Executive Committee. In this view of the matter, Writ Petition No. 1161 of 1991 was withdrawn on 9th April 1991.
4. The Executive Committee of the Maharashtra Medical Council called for the relevant records from the Nanavati Hospital. Respondent No. 5 Dr. Shah is the Medical Superintendent of the said Nanavati Hospital. Copies of the said records were made available to the petitioner and on 30th June 1991 the Executive Committee came to the following conclusion:-
"Resolved that:
The deceased Mrs. Raheja was treated by Dr. D. B. Pahlajani and Dr. S. R. Pandey and underwent surgery. The operation was a major one and it was done successfully as is seen from hospital records, available with Council, as well as from further questions to Mr. Raheja as well as to two doctors, Dr. D. B. Pahlajani and Dr. S. R. Pandey. There is no evidence of suppression of facts by the doctors concerned. There is no evidence of any negligence in treating the patient. It is, therefore, recommended to the Council that there is no prima facie evidence against the doctors with regard to allegations made by the complainant."
In view of the provisions of the Maharashtra Medical Council Act, 1965 (for short, "the 1965 Act"), the Executive Committee referred the matter to the first respondent Council, which has passed a unanimous resolution o'n September 20, 1991 adopting the above decision of the Executive Committee.
5. By the present petition, the petitioner has prayed for quashing the said decision of the Medical Council arrived on September 20, 1991. The petitioner's prayer is for a direction to the Medical Council to conduct a fresh inquiry regarding the alleged medical malpractices. He has also claimed Rs. 5,000/-by way of damages for the alleged harassment. By an amendment, the petitioner has prayed that this Court should direct the first respondent Medical Council to regulate its procedure and practice so as to ensure speedy disposal of the complaints made to the Medical Council. Similar ancillary directions have been sought regarding the conduct of inquiries on a day to day basis and not on week-ends, supply of hospital records to the patients or their relatives, the constitution of the Benches/Committees of the Medical Council inquiring into such complaints, right of representation through a lawyer and such other matters incidental thereto. It is not necessary for us to refer to each of the prayers in details, since it will be evident from the scheme of the provisions of the said 1965 Act and the 1967 Rules framed thereunder that necessary provision has been made therein for most of the above matters.
6. The Maharashtra Medical Council Act, 1965 was enacted to unify, consolidate and make better provision in the law regulating the registration of persons practising modern scientific medicine in the State of Maharashtra and to provide for matters connected therewith. The Medical Council which is a body corporate consists of (a) the Director of Health Services, ex-officio, (b) the Director of Medical Education and Research, ex-officio, (c) five members to be nominated by the State Government, out of whom not more than one may be a person who is not a practitioner, (d) one member from each University established by law in the State which has a medical faculty, elected by members of the medical faculty of the University from amongst members thereof who are practitioners, (e) one member to be elected by members of the governing body of the College of Physicians and Surgeons, Bombay, from amongst members thereof, who are practitioners, and (f) nine-members to be elected by registered practitioners from amongst themselves. The President and Vice-President of the Council are to be elected by the members from amongst themselves. The constitution, functions and powers of the Council are enumerated in Chapter II of the said Act. Section 3 deals with the Constitution of the Council as summarised above. Elaborate provisions have been made for the meetings of the Council and the proceedings thereof. Section 1 f deals with the Consti-
tution of the Executive Committee consisting of the President ex-officio, the Vice-President ex-officio, and certain officials in the medical field and other members elected by the Council.
7. Chapter IV of the said 1965 Act deals with "Preparation and Maintenance of Register" of medical practitioners. Section 22 deals with removal of names from the Register where a registered practitioner has been, after due inquiry held by the Council (or by the Executive Committee) in the prescribed manner, found guilty of any misconduct by the Council. Sub-section (6) of S. 22 provides that in holding any inquiry under this section, the Council or the Executive Committee, as the case may be, shall have the same powers as are vested in Civil Courts under the Code of Civil Procedure, 1908, when -
(a) enforcing the attendance of any person, and examining him on oath;
(b) compelling the production of documents;
(c) issuing of commissions for the examination of wilnesses.
Under sub-section (8) of S. 22, the Council or the Executive Committee is authorised to take advice of an assessor who has to be an advocate of not less than 10 years standing or an attorney of the High Court.
8. Section 30 of the said 1965 Act provides for the making of rules by the State Government. Clause (1) of sub-sec. (2) of S. 30 deals with the rules for manner of holding inquiries under Sec. 22. Elaborate Rules have been framed in exercise of the said powers under S. 30 of the Act known as the Maharashtra Medical Council Rules, 1967. We are mainly concerned with Chapter VI therein dealing with "inquiries". Rule 62 onwards deal with the procedure to be adopted on receipt of any complaint against any registered medical practitioner. Under Rule 63 a complaint forwarded to the Executive Committee by the Registrar of Med ical Council has to be inquired into by the Executive Committee. The Executive Com-mittee under Rule 64 has to consider the complaint and it can cause further investigation to be made and take such legal advice by consulting any legal practitioner as it may consider fit. If the Executive Committee is of the opinion that a prima facie case is not made out, and that the case should, therefore, be filed or that the circumstances of the case suggest that a warning to the practitioner would be adequate, or that the case is one where the name of the practitioner should be removed from the register, the Committee shall record its findings accordingly, and direct the Registrar to take steps for having the case heard and determined by the Medical Council. When the matter is, thus, referred by the Executive Committee to the Medical Council, the provisions of Rule 65 onwards govern the procedure before the Medical Council. If the Medical Council agrees with the opinion of the Executive Committee that the case should be filed, it may decide to file the papers. However, in a case where the Medical Council decides to hold an inquiry, a further elaborate procedure has been laid down dealing with the notice to be given to the medical practitioner in respect of the charges and the subsequent procedure to be followed. In this case, we are not concerned with the subsequent detailed procedure to be followed by the Medical Council since the Medical Council has agreed with the recommendations of the Executive Committee that there was no prima facie evidence against the doctors-respondents Nos. 3 and 4, in support of the allegations made by the petitioner.
9. We have heard all the learned counsel at length; viz., Mr. Gonsalves for the petitioner, Mr. Naik for the first respondent Medical Council and the learned Advocate-General for respondents Nos. 3, 4 and 5. We have also heard Mrs. Sumedha Rao who has taken out a chamber summons claiming to be a freelance journalist and the correspondent of Women's Magazine 'Savy'. She is a lawyer practising in this Court. She has prayed for intervention and has supported the petitioner.
We have perused the entire record placed before us.
10. The record and proceedings before the Executive Committee show that the petitioner was given a full opportunity of putting forth his contentions before the Executive Committee. In our view, there is no failure to comply with the principles of natural justice. The Executive Committee has recorded the statement of the complainant on different dates, and examined the two doctors respondents Nos. 3 and 4 at length. The members of the Executive Committee, who are themselves eminent qualified doctors have put elaborate questions to the two doctors-respondents Nos. 3 and 4. The copies of all the relevant papers were furnished to the 'petitioner. It is true that his prayer for some more time was rejected. It also appears that the petitioner wanted to rely upon an unsigned opinion of an unknown medical expert. When the Committee was confronted with this piece of papers without disclosing as to who the medical expert was, the Committee called upon the petitioner to disclose the name of the expert and to make him available for being questioned. However, the petitioner refused to disclose the name of the expert whose unsigned opinion was tendered before the Committee. In the light of the other material before the Committee and having regard to the elaborate questions put to the petitioner and to the two doctors, the Committee decided to ignore the unsigned opinion of the unknown expert. We do not think, we can take any exception to this approach on the part of the Executive Committee. If the petitioner wanted to confront the two doctors-respondents Nos. 3 and 4 with the opinion of an expert in the field, it was expected of the petitioner to either produce that expert for being questioned by the Committee and by respondents Nos. 3 and 4 or, in the minimum, an affidavit of the expert, along with his opinion, ought to have been placed before the Committee so as to enable the Committee to decide on the further course to be adopted by it. Nothing of this sort was done by the petitioner and now an objection is sought to be raised before us that the refusal to consider the unsigned opinion of an unknown expert amounts to denial of sufficient opportunity and, therefore, failure to comply with the principles of natural justice. We do not find any merit in this contention of the petitioner.
11. As stated earlier, we have perused the entire record and proceedings of the Executive Committee that was placed before us. Copies of the same were made available to the petitioner during the course of the inquiry. The statements of the petitioner and the two doctors have been considered by the Committee. The record of the Committee which has been annexed to the petition shows that the Executive Committee has considered the entire material that was placed before it. The grievance of the petitioner is that his written submissions and some of the answers given by the two doctors have not been taken into account while arriving at the conclusion that the operation of the petitioner's wife was performed successfully. In our view, the record of the Nanavati Hospital shows that proper treatment was prescribed and was given to her. There is no evidence of suppression of facts by either respondent No. 3 on respondent No. 4 or respondent No. 5, who were the concerned doctors at the Nanavati Hospital at the relevant time. The findings of the Executive Committee, a body of experts, is that there was no negligence in treating the patient. It is unfortunate that the petitioner's wife has died after having been operated for a by pass. It is not uncommon that in some cases of bypass surgery the patient may not be able to survive for long. That does not necessarily lead to the conclusion that the doctors who performed the operation were negligent. Complications may develop after an operation takes place and unconnected factors subsequent to the bypass surgery may be responsible for the death of a patient in a given case. On the material that was placed before the Committee, it rightly came to the conclusion that there was no negligence in treating the patient and there was no substance in the allegation made against the doctors.
12. These recommendations of the Executive Committee have been accepted by the first respondent Medical Council. The petitioner was given an adequate opportunity of representing himself before the Medical Council. From the manner in which he was prosecuting the litigation, it is clear that he is a knowledgeable person. He has already filed a suit claiming heavy damages against the two doctors. His suit is pending in this Court. We do not think, in a writ petition under Art. 226 of the Constitution of India, we can re-appreciate the evidence and try to come to al different conclusion. There is no illegality or infirmity in the decision arrived at by the Executive Committee which was unanimous-ly adopted by the Medical Council. Both the: bodies consist of experts in the medical field. We have already indicated above that there was no violation of the principles of natural justice and that the petitioner was afforded a full opportunity. Nothing has been shown to us to conclude that any prejudice was caused to the petitioner.
13. We are not oblivious to the fact that the primary object of the medical profession is the alleviation of human sufferings. The cherished ideals of the medical profession imply that the responsibilities of the medical practitioner extend not only to the individual, but also to the community as a whole. We have no doubt in our mind that a medical practitioner should merit the confidence of the patients entrusted to his care rendering to each a full measure of service and devotion. Despite the medical practitioner adhering to all these principles of medical ethics and rendering best of his assistance, in a given case, a patient may succumb on account of complications which may develop unconnected with the surgery or treatment undergone by the patient. We should be slow to adopt an attitude of finding fault with the medical experts, who are found to have done all that was necessary to help a patient. This would be all the more so when we are exercising writ jurisdiction in respect of the decision unanimously arrived at by a body of experts in the field. There are no allegations of mala fides or ulterior motives attributed to any of the members of the Executive Committee or of the Medical Council. Nothing was pointed out to us to suggest mala fides on the part of any member of the Executive Committee or of the Medical Council.
14. Realising the limitations on the powers of this Court in a writ petition under Art. 226 of the Constitution, Mr. Gonsalves fairly stated that his main endeavour in this petition was to persuade this Court to give some general directions to the Maharashtra Medical Council in the matter of conduct of the inquiries, either by the Executive Committee and/or by the Medical Council itself. In particular, counsel has submitted that this Court should give a general direction to the Maharashtra Medical Council to the effect that the Council should call upon all the hospitals and doctors in the State of Maharashtra to make available the copies of case papers to patients when demanded by them. The second submission is that in exercise of its powers under S. 22 of the 1965 Act, the Executive Committee or the Council should enforce attendance of witnesses and compel production of documents. The third submis-. sion is that the Court should insist on the Executive Committee and the Medical Council write an elaborate speaking order with detailed reasoning as if it were ajudgment of a Court. It was suggested that failure to do so amounts to failure to comply with the rules of natural justice.
15. We have already referred to the scheme of the provisions of the Maharashtra Medical Council Act 1965 and the 1967 Rules framed thereunder. We are of the view that when a patient or his near relative demands from the Hospital or the doctor the copies of the case papers, it is necessary for the Hospital authorities and the doctors concerned to furnish copies of such case papers to the patient or his near relative. In our view, it would be necessary for the Medical Council to ensure that necessary directions are given to all the Hospitals and the doctors calling upon then to furnish the copies of the case papers and all the relevant documents pertaining to the patient concerned. The hospitals and the doctors may be justified, in demanding necessary charges for supplying the copies of such documents to the patient or the near relative. We, therefore, direct the first respondent Maharashtra Medical Council to issue necessary circulars in this behalf to all the hospitals and doctors in the State of Maharashtra. We do not think that thet hospitals or the doctors can claim any secrecy! or any confidentiality in the matter of copies of the case papers relating to the patient. These must be made available to him on demand, subject to payment of usual charges. If necessary, the Medical Council may issue a press-note in this behalf giving it wide publicity in all the media.
16. As far as the second grievance of Mr. Gonsalves is concerned, it is not necessary for us to give any general direction, since in our view, S. 22 of the 1965 Act provides for the same. Sub-section (6) of S. 22 enumerates the powers vested in the Executive Committee or the Medical Council for holding an inquiry. Such power relates to (a) enforcing attendance of a person and examining him on oath, (b) compelling the production of documents, and (c) issuance of commission for examination of witnesses. Thus, in view of the provisions of sub-sec. (6) of S. 22 and the provisions of Chapter VI of the Maharashtra Medical Council Rules 1967, we do not think that any further direction needs be given in this behalf.
17. The third contention of Mr. Gonsalves is that the Executive Committee ought to have written a detailed judgment giving elaborate reasons. We do think that the submission is justified. In the case before us, the Executive Committee has recorded its reasons while making its recommendations, which we have reproduced above. The recommendations refer to the facts in brief. It is clear that the entire material was considered by the Executive Committee and on consideration of the entire material, including the statements of the witnesses examined, the Executive Committee came to the conclusion that there was no negligence on the part of the doctors, nor was any doctor guilty of suppression of facts. When these recommendations were placed before the Medical Council, it decided to agree with the recommendations. This is not a case where a further inquiry was deemed necessary for issuing any charge-sheet to the medical practitioner necessitating ) further inquiry in accordance with Rule 66 onwards. The Medical Council decided to accept the recommendations of the Executive Committee and in doing so, it has observed as under:--
"After going through all the papers and full consideration the Council has adopted -- the following resolution which is reproduced for your perusal".
In our view, in this case where the Excutive Committee recorded its reasons in brief and decided to exonerate the two doctors, respondent Nos. 3 & 4 and the Medical Council in its turn, considered the entire record and decided to adopt the resolution of the Executive Committee, it was not necessary for the Medical Council to write a detailed Judgment giving elaborate reasons as is done in the Courts of law. We are, therefore, not inclined to accept the contention of Mr. Gonsalvcs that there is a failure to comply with the principles of natural justice inasmuch as elaborate reasons were not given by the Council.
18. It was also suggested by Mr. Gon-salves that every complainant has a right to be represented by lawyer before the Executive Committee and the Council. In our view, the scheme of the provisions of the 1965 Act and the 1967 Rules leaves a discretion with the Executive Committee and the Madical Council in the matter of permitting the complainant to be represented by a lawyer. In addition to this, Mr. Naik appearing for the Medical Council fairly stated before us that as and when a complainant makes an application for being represented by a lawyer, the Executive Committee or the Council considers such an application on its merit and does the needful in accordance with law. We accept this statement. In our view, while there is no prohibition on the complainant being represented by a lawyer before the Executive Committee or the Medical Council, it is not, as of rule, in every case that the complainant must be represented by a lawyer. These are matters best left to the discretion of the Executive Committee and the Medical Council.
19. In view of the above, subject to the direction to the Medical Council mentioned in Para 15 above for ensuring that copies of case-papers are made available to the patients and their near relatives, as indicated above, we find no merit in the Petition. The Petition is accordingly dismissed. Rule is discharged. There will, however, be no order as to costs.
20. In view of the order in the Petition, no further order is required in Chamber Summons No. 2 of 1966 which is accordingly disposed of.
21. Issuance of certified copy is expedited.
Petition dismissed.