Calcutta High Court (Appellete Side)
Dipanjan Basak vs The State Of West Bengal And Ors on 11 October, 2018
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1
11-10-2018
ct no. 14
W. P. 6187(W) of 2018
Dipanjan Basak
-versus-
The State of West Bengal and ors.
Mr. Pratik Dhar, Sr. Advocate
Mr. Shibaji Kumar Das
Ms. Cardina Roy
..for the petitioner.
Mr. Jishnu Chowdhury
Mr. Rabiul Islam
....for the State.
Mr. Saibalendu Bhowmick
Mr. Biplab Guha
...for the respondent Nos. 3 & 4.
1) The writ petitioner challenges an order passed by the West Bengal Medical Council (BMC) under Section 17 and 25 of the Bengal Medical Act, 1914. By the impugned order dated 12th July 2017 communicated to the petitioner on 29th August 2017, the writ petitioner's name was directed to be removed from the register of medical practitioners maintained by the Council for a period of 3 years from the date of the order.
2) The facts of the case are that on the 27th of December 2010 the writ petitioner reported to the KG 2 Hospital for duty at Chittaranjan at 11.40 pm. The writ petitioner is general physician.
3) An in house patient one Prubasha Das, 19 years of age and weighing 45 Kgs, was already admitted to the said K.G. Hospital on the 24th of December 2010, with Nausea, Vomiting and Loose Motions, and was attended to by one Dr. Ajoy Kumar. The patient was stated to have been admitted with Respiratory Tract Infection. The admission report annexed to the writ petition is however not legible and the diagnosis or prognosis of the Dr Kumar is not available from the records. Dr Ajoy Kumar prescribed Oflaxin by IV drip,Stemitil Injection, Injection Rantac, Injection Zofar, and Paracetemol. The patient was advised Blood Tests TC/DC, ESR, MP Optimal, LFT, HB, SAG, Urea and Creatnine. The results of these tests have not been brought on record.
4) Later on the 24th of December 2010 the treatment of the patient was taken over by one Dr.Snigdhendu Ghosh a Neurologist. He advised injection Omnatax 2gBD, Oflaxcacin IV, Injection Rantac, Injection Zofar and Paracetamol and also advised a Widal Test to determine Typhoid. After seeing the reports of the Widal Test he changed the medication from Omnatax 2g Bd to Injection Omnatax 2g TDS and added Capsule Enteromycetin 500 mg 6 Hourly. No fresh 3 blood test was ordered to determine blood count nor was Chest X Ray ordered.
5) On the 27th of December 2010, the patient was seen by one Dr Ritnagshu Ghoshal who omitted IV Ofloaxcin and added Paracetemol.
6) The writ petitioner took over duty at the KG Hospital on 27th of December 2010 at 11:40 PM.
7) Despite knowledge of the category of the antibiotics prescribed were admittedly 'blood spectrum'/'all purpose' and sweeping in nature the writ petitioner did not order any specific blood test to ascertain the blood count or chest X-ray especially when the patient was stated to be only stable and not recovering. These are admittedly normal procedure to be undertaken by a general physician of ordinary prudence. Very strangely the Bed Head Ticket (BHT) has not seen the light of the day in any proceedings before this Court.
8) The patient was reported to be stable but not on the 28th and 29th of December 2010. On the 29th of December, however, after the writ petitioner left duty and while he was in the local market the patient developed severe respiratory problems. He telephonically advised the nurse of the hospital to shift the patient to the ICU in the same hospital.
9) Within 10 minutes of admission into the ICU the doctor on duty suspected something serious with the lung of the patient and performed an X-ray with the 4 help of a mobile X-ray machine. It was found that one of the lungs of the patient had collapsed and was leading to Acute Respiratory Distress Syndrome (ARDS). The patient was immediately shifted by her father to a larger medical institution called Mission Hospital where the patient died immediately thereafter.
10) A complaint was lodged by the father of the patient with the local police authorities who was constituted a medical board and did not find the petitioner chargeable for causing death by negligence under the provisions of the Indian Penal Code. The petitioner's father thereafter moved the Consumer Forum under the Consumer Protection Act, 1986 but did not pursue the same. He finally lodged a complaint with the BMC who took up the matter.
11) Prior thereto and after receiving of the complaint letter dated 24th February 2011 filed by the father of the deceased to the K.G. Hospital being Annexure P/4 to the writ petitioner charged the officials of the KG Hospital by a letter in writing for allowing the complainant, the father of the deceased patient, access the Bed-Head-Ticket.
12) After the B.M.C. received complaint and in view of some delay in disposal of the same the Medical Council of India under the provisions of the Medical Council Act, 1957 and the Indian Medical Council 5 (professional conduct etiquette and ethics) Regulations, 2002, the West Bengal Medical Council was directed to hear out and dispose of the complaint within a period of 6 months in terms of Regulation 8.4 thereof.
13) A Penal and Ethics Committee (PE) found after examination of the petitioner, that the doctor on the ICU at KG Hospital on the 24th of the December 2010 had found that both the lungs of the patient were full of crepitation and that the X-ray revealed bilateral consolidation. It was also found that the patient had received 3 separate antibiotics including cefotaxime at the highest dose. On the 27th of December when the petitioner took over treatment he mechanically continued the same the antibiotics without a blood test or chest X-ray. The initial widal test revealed "TO1:160" and "TH:1:160" a subsequent widal test revealed "TO1:160" and "TH:1:230". The patient was admittedly suffering from fever for about 7 days as on 29th December 2010.
14) It was found that the contention of the writ petitioner that the patient was stable during the petitioner's duty was not believable because it was impossible that a stable patient's condition would suddenly deteriorate within 2 hours after the writ petitioner left treatment on the 29th December 2010 at 6 p.m. At no point of time during the care of the 6 petitioner was either a fresh blood count taken nor was any X-ray was done. This was what a General Physician with normal prudence and procedure would and should have done, despite the Widal test it was not understood as to how the doctors continued the treatment based on a diagnosis of Enteric Fever.
15) It was also found that patient was not clinically examined independently at all by the writ petitioner even on the 29th of December 2010. It was also found had the patient been examined, clinically on 29th of December 2010 bilateral crepitation in the lungs that would have led to ARDS could easily have been detected by the petitioner. Based on the above a chargesheet dated 1st August 2016 was issued to the petitioner inter alia stating as follows:
"It appeared that there was some commission of errors in medical management of one patient, young girl, Purbasha Das at K G Hospital, Chittaranjan, which led to her death in multi- organ failure with respiratory complications, even though the case was initially appeared to be a case of Enteric Fever. Even though she was admitted with the diagnosis of RTI, no blood count or chest x-ray was performed. On 29-12- 2010 the patient developed acute respiratory complications and then chest x-ray was performed. She was subsequently referred to Mission Hospital, Durgapur where the diagnosis came out to be septicemia with multi-organ failure. Chest x-ray and CT revealed occurrence of probable pulmonary edema or ARDS. This quick onset indicated that between 27th and 29th December 2010 there might be some errors in patient surveillance and on this score, you cannot be absolved of your responsibility" and that in relation there to you have been found prima facie guilty of infamous conduct in a professional respect.7
And I am directed further to give your notice that a meeting of the West Bengal Medical Council will be held (exact date will be intimated later on) to consider the above-mentioned charges against you and decided whether or not they should direct that your name be removed from the Register of Registered Practitioners pursuant to Section 17/25 of the Bengal Medical Act, 1914. You are invited and required to answer in writing the above charges within 21 days from the date of receipt of this letter and to attend before the Council, to establish any denial or defence that you may have to make to the above-mentioned charges, and you are hereby informed that if you do not attend as required, the Council may proceed to hear and to decide upon the said charges in your absence.
16) Along with the chargesheet the entire procedure to be followed in terms of Section 17 and 25 were duly annexure made available to the petitioner the procedure are set out under the Bengal Medical Rules under Clause (d)(I) of sub-Section 2 of Section 33 of the Bengal Medical Act, 1914 were also communicated to the petitioner the same has been annexed to the writ petitioner. The petitioner duly replied to the chargesheet where from it is clearly evident that he has no uncertain terms understood the purport and extent of the charges levelled against him. The depositions of the writ petitioner and the complainant were examined by about 15 doctors/ members of the B.M.C. in course of hearing before the Bengal Medical Council. The findings of the Council was herein above were arrived at and deliberated upon by the committee in detail. The report of the PE Committee 8 was not stated to have been relied upon by the B.M.C. members. The depositions stated to have been considered appear to be that of the complainant and the petitioner.
17) Upon being asked as to whether a blood and X-ray text ought to have been prescribed, the writ petitioner answered in the affirmative. Upon being asked as to why the petitioner did not prescribe such blood test he simply said that no such facility was available with the K.G. Hospital. How then were such blood tests performed earlier on the same patient remained unexplained.
18) Unlike a regular departmental proceedings and in terms of the Rules of the Bengal Medical Act 1914 the said committee after detailed deliberation unanimously voted to strike of the name of the petitioner from the register of the medical practitioner for a period of two years. Since in the original chargesheet itself the proposed punishment has been set out, it was not required to issue a second show cause notice. The petitioner has not and could not challenge the procedure followed. The Committee unanimously imposed a punishment of removal of his name from the Register of Medical Practitioner for 3 years. The preliminary P.E. Committee report has not been relied upon by the B.M.C.
19) The State as well as Bengal Medical Council urged a point of the maintainability of the writ petition. 9
They submitted that in terms of Clause 8.8 of the Indian Medical (Professional Conduct, Etiquette and Ethics) Rules of 2002 (2002 Regulations) read with Rule 27 of the Indian Medical Council Rules, 1957 and Section 24 of the Indian Medical Council Act 1956. An appeal against an order of the Bengal Medical Council penalising a medical practitioner for infamous conduct lies to the Indian Medical Council. The writ petition according to them is barred by for availability of an alternative remedy.
20) The writ petitioner would first argue that in respect of another proceeding against predecessor of the petitioner, Dr. Snigdhendu Ghosh from whom the petitioner took the charge on the 27th of December 2012, a Division Bench of this Court in a judgment reported in Dr. Singnendu Basu Vs State (2018) SCC online CAL 4843 has held that the appeal to the Indian Medical Council as above would only lie against an order permanently removing a Medical Practitioner from the records and not just for an year or two or three as in the instant case. It is pertinent to mention that there are 2 other decisions of this court on the same subject. In the case of the MCI Vs State and Dr Rupa Basu Vs State reported in 2011 SCC Online Cal Pg 3988 it was held by a Division Bench of this Court that the appeal under Section 24 of the MCI Act of 1956 only provided a remedy to a person to seek an order of expeditious disposal of the proceedings of appeal. The challenge to the Vires of 10 Rule 8.8 of the said regulations was however not decided.
21) Regulation 8.8 and 8.7 were introduced in the said 2002 Regulations after approval of the Supreme Court of India in (2003) 8 SCC 490 and hence must be deemed to be law under Article 141 of the Constitution of India. 8.8 is required to be followed till such time it is not upset by the Hon'ble Apex Court. The parties have ignored this proposition.
22) Further it seems that that the procedure laid down in the statute has been followed in letter and spirit by the Bengal Medical Council. There can be no grievance of violation of the principles of Natural Justice. What is most relevant is that only another body of medical practitioners can assess any infirmity in the decision itself and Courts should be extremely circumspect to interfere with a substantial decision of the of a body of specialists. Courts do not possess the abilities of specialist Medicos and an appeal before the Medical Council of India ought to have been filed by the writ petitioner. Reference in this regard in made to the decisions of the English Courts in Meadow Vs. GMC [2007] QBD 462 and Raschid Vs. GMC [2007] WLR 1460.
23) In yet another unreported decision of a single bench of this Court in the case of Dr Shyama Prasad Sar Vs State and Ors. ( W.P.No.781 of 2011) dated 11 1st September 2011 it was held that the an appeal would clearly lie to the MCI against the order of the State Medical Council. The said decision is well reasoned.
24) However this court is bound by the view expressed by the Division bench of this Court this Court in the Snighnendu Ghosh (Supra) case only on the said question. It would be appropriate that the said issue is considered by a larger bench of this Court in view of the inconsistent views taken by two Benches of this Court to set at rest the controversy.
25) The said division bench in the case of Dr Snighdendu Ghosh(Supra) on other issues held as follows and Ld. Counsel for the petitioner sought to vehemently argue that the this Court is completely bound the by the said judgment and the order of the BMC against the petitioner must be stayed in view of above Division Bench judgment.
(a) That allegation of respiratory tract infection was not available in the records of the appeal in the writ petition.
(b) Acute respiratory syndrome has set in between 27th and 29th December 2010
(c) The pathological report indicated the petitioner was suffering from typhoid.
(d) That an appeal Section 24 of the Medical Council Rule of 1956 to the Medical Council of 12 India read with Rule 24 of the MCI Rules of 1957 was only in respect of a permanent removal from the records and not against any other kind of removal.
(e) That there are exception of alternative remedy when there is violation of principles of natural justice.
(f) That the appellant therein did not get an opportunity to explain why he had administered three antibiotics irrationally.
26) The Division Bench was in fact hearing an appeal from an interlocutory order refusing to stay the punishment order of the BMC. Even before the Division Bench the matter was heard in the absence of affidavits and the DB disposed of the writ petition. The argument of the writ petitioner that this Court is bound by the Division Bench Judgment and is bound to interfere with the order of punishment against the writ petitioner cannot be countenanced. The reason, therefor, is that there are factual differences between the Division Bench judgment and the instant case. These are as follows :-
(a) That the appellant Dr. Ghosh, a neurologist, was in charge of the patient only until 26th December 2010. Dr. Basak, the writ petitioner, took over charge on the 27th of December until the 13 patient's condition lead to ARDS on the 29th of December 2010.
(b) Dr. Ghosh was a mere replacement doctor whereas Dr. Basak was a regular duty doctor.
(c) The writ petitioner, Dr. Basak, is a general physician whereas Dr. Ghosh was a neurologist.
(d) It is evident from the reply of Dr. Basak to the charge memo that he clearly knew and understood the scope of the charge against him when he replied to a question as to why he continued to administer the same blood spectrum antibiotics and despite the patient having fever for 7 days without ordering a second blood test to determine blood count and the chest X-ray. He merely replied that there were no blood testing facilities at KG Hospital.
(e) The X-ray was not performed despite the mobile X-ray machine being available with the KG Hospital. The B.M.C. comprising 15 doctors found that there was no clinical examination done at all by Dr. Basak which if done would have revealed crepitation in the lungs and the consequent X-ray would have revealed bilateral consolidation.
(f) It was also found that the blood spectrum, Sweep antibiotics that were followed by the Dr. Basak from his predecessor Dr. Ghosh could not 14 have been administered by any qualified medical practitioner with 18 years of experience.
(g) During the period from 24th to 27th and until 29th of December 2010 the condition of the patient was bad but stable.
27) In those circumstances, the Division Bench judgment of Dr. Snigdhendu Ghosh (Supra) being clearly distinguishable on facts has no manner of application in the facts of the case. Far from being any error of judgment the B.M.C. found that the writ petitioner herein wholly and completely guilty of failing to perform any clinical examination and consequently guilty of infamous conduct.
28) Counsel for the writ petitioner who strenuously urged that infamous conduct can only be restricted to cases like immorality or furnishing or false degree and the like. He relied upon Black's Law dictionary in that regard. What has been ignored in that the definition of Infamous Conduct has been deemed broad based to include all cases of negligence and also grave and serious errors of judgment both by the English Courts, the Supreme Court of India and also the MCI Act and the Rules and Regulations framed thereunder.
29) The writ petitioner also argued that it has been held so and so Kusum Sharma and others Vs. Batra Hospital reported in (2010) 3 SCC 480 that an error 15 of judgment by itself cannot amount to negligence.
The said judgment arose out of a decision of the consumer fora whereas the instant case relates to a decision of a specialized body of Medical professionals. However, Counsel for the State as well as the Bengal Medical Council relied upon the judgment of the of the House of Lords in White Horse Vs. Jordan reported in [1981] 1 All ER 267 where it has held that every error of judgment is not "necessarily" negligence thereby implying that some errors of judgment may be driven by sheer and complete negligence.
30) The reference to the Bolam case where it was held that an error of judgment is not negligence referred to by the Privy Council in its judgment against which the appeal arose before the House of Lords that expression "error of judgment does not amount negligence" was clarified to read "as error of judgment is not 'necessarily' negligence". The dicta laid down in Bolam VS. Friern Hospital (1957) Al ER 121 was approved with a slight modification.
31) In the case of Sloan Vs. General Medical Council reported in (1970) 2 All ER 686 it was held in the matters requiring expertise in the nature of medicine, like that of the writ petitioner, it is only a committee comprising of persons of the same profession as that of the writ petitioner who would be best placed to decide as to whether the writ petitioner acted in the 16 manner with due care and diligence expected to a regular medical practitioner.
32) It is now well settled that a writ court while dealing with a challenge to a quasi judicial proceeding must confine itself to assess the decision making process and not the decision itself.
It is only in rare instances that the decision itself can be looked into from the point of view of perversity i.e. If no reasonable man can come to the conclusion that the authority has come to; if the authority has gone outside the evidence on record or has ignored vital evidence on record. Even in cases where the above are not attracted the Writ Court not being a Court of Appeal cannot substitute its own views if two views are possible.
33) For the reasons stated hereinabove there shall be no interim order in the matter at this stage.
34) Let affidavit in opposition to the writ petition be filed within a period of 3 weeks after the ensuing Puja Vacation, reply if any within a period of 1 week thereafter. Let matter appear in the list of hearing matters 4 weeks after the Puja Vacation.
35) Urgent Xerox certified copy of this order, if applied for, be supplied to the parties on urgent basis.
(Rajasekhar Mantha, J.)