Karnataka High Court
Dr Badari Datta H C vs The President on 20 January, 2020
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20th DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
WRIT PETITION No.9524/2017
&
WRIT PETITION NO.54352/2017(GM-RES)
BETWEEN:
1. Dr.Badari Datta H.C.
Consultant ENT Surgeon
2. Dr.Jayashree
Consultant Anesthesiologist
Both are working at
C/o Bangalore Baptist Hospital
Bellary Main Road, Hebbal,
Bengaluru-560 024.
...Petitioners
(By Smt S. Radha Pyari, Advocate)
AND:
1. The President
Karnataka Medical Council
No.16/6, Miller Tank Bed Area
Vasanthnagar,
Bengaluru-560 052.
2. Mr. Vinayak S. Karmath
No.52, 1st Floor, 2nd Cross Road,
RMS Layout, Sanjaynagar,
-2-
Bengaluru-560 094.
...Respondents
(By Sri D.S.Hosmath, Advocate for R1;
Sri Srinath R.K., Advocate for R2)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India praying to set aside the
impugned order dated 28.06.2014 vide Enquiry No.40 of
2012 passed by the respondent No.1 vide Annexure-A.
These Writ Petitions coming on for orders this day,
the Court made the following:-
ORDER
Sri.Srinath R.K. is directed to take notice for respondent No.2.
Heard the learned counsel for the petitioner and the learned counsel for respondent No.2. Learned counsel for respondent No.1 is absent.
2. The brief facts of the case are that on 9.01.2011 son of respondent No.2 was admitted in the hospital for the advised operative procedures. On 10.01.2011 the patient was shifted to OT preparation and anesthesia started. Surgeons conducted Larynogoscopy. As the extra growth was not accessible, surgeons did not conduct biopsy. -3- Accordingly, reversal of anesthesia took place and the patient was extubated. Patient was awake for few minutes and then became restless and breathless, the anesthesiologists tried to re-intubate, which they could not as he was restless and emergency tracheostomy started. At this point of time, the patient developed cardiac arrest and CPR was started. Patient was revived successfully and sent to ICU. Thereafter, the patient was stabilized and till 15.01.2011, while changing tracheostomy tube again the patient developed cardiac arrest, despite CPR could not be revived and thereafter at about 11.30 a.m. he was declared dead.
3. Respondent No.2 filed the complaint as against the petitioners. The Investigating Officer, Hebbal Police Station sent the Post Mortem report, sought the opinion from the Karnataka Medical Council. Medical Council commenced the proceedings against the petitioners and after detailed procedure the Medical Council has administered 'WARNING' to petitioners No.1 and 2 and other two doctors -4- have been exonerated. Challenging the same, petitioners- accused Nos.1 and 2 are before this Court.
4. It is the contention of the petitioners that pre- anesthetic check-up was conducted on 5.11.2011 prior to petitioner No.1 was operated and petitioner No.2 was not present and as on that day petitioner No.2 was on leave. It is his further submission that petitioner No.1 is a Surgeon and he has no role in conducting the pre-anesthetic check up. It is his further submission that the medical council on the basis of the fact that pre-medical anesthetic check up has not been conducted, the impugned order has been passed and same is not in accordance with law and as such the same is liable to be set aside. It is his further submission that the punishment imposed itself is harsh and the facts does not disclose issuance of any 'WARNING'. It is his further submission that the patient has cardiac arrest, subsequently he has recovered. After four days the alleged incident has taken place. It is his further submission that the patient did not suffer any neurology -5- cardiac arrest in the operation theatre and as such the impugned order is not sustainable in law. It is his further submission that the petitioner No.1 is the most senior ENT doctor available took charge and performed tracheostomy on the patient at maximum speed humanly possible. The tracheostomy was done as emergency life saving procedure in accordance with the established medical practice. There is no negligence even on the part of petitioner No.1. Without considering the said facts and material the impugned order has been passed and the same is liable to be quashed.
5. The learned counsel for respondent No.2 submits that respondent No.2 due to emotional outburst consequent upon the death of son of respondent No.2 while under treatment based on false, misconceived facts he has given the complaint and in that light he submits that already the matter has been amicably settled between the parties as it is a civil dispute and an amount of Rs.15,00,000/- has already received by him and in that -6- light a just and legal order may be passed in accordance with law.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. On close reading of the impugned order passed by the Karnataka Medical Council and on perusal of the records it appears that the role of petitioner No.1 is concerned, he is ENT Surgeon and he has conducted surgery. But it is the contention of the Karnataka Medical Council that the petitioners have failed to conduct pre- operative cardiac evaluation and pulmonary test during pre-anesthetic check-up. It is submitted by the learned counsel for the petitioners that the pre-operative cardiac evaluation and pulmonary test have been conducted on 5.1.2011 and subsequently the anesthesia was administered on 10.1.2011 and on that day the operation has been conducted. When the pre-operative cardiac -7- evaluation and pulmonary test have been conducted earlier to the operation on 5.1.2011, then under such circumstances it appears that no role has been played by petitioner-accused No.1.
8. Be that as it may, it is brought to my notice that as per hospital protocol (Standards of National Accreditation Board for Hospitals and Healthcare Providers 3rd Edition) once surgeon decides the surgery, patient is sent for pre anesthesia checkup by the anesthetist who examines the patient for suitability of anesthesia, decides anesthesia plan explains risk and complications of anesthesia to patient and takes consent and order for relevant investigation needed. It is noticed from the said practice anesthesia checkup was done. During the course of submission it is submitted that one Dr.Shekhar, Senior Anesthesia Consultant has done Pre-Anesthesia Checkup. If that fact is taken no role has been played by petitioner and even it is not brought on record that it is petitioner who is legally do Pre-Anesthesia Checkup. In the absence -8- of any such material passing of impugned order is nothing but a illegal and wrong order.
9. Be that as it may. When petitioner No.2 was not present and as she was on leave, under such circumstances how she is held liable has not been properly and correctly evaluated and has passed the erroneous and unsustainable order.
10. Looking from any angle, the order passed by the Karnataka Medical Council appears to be without application of mind and without following the procedure laid down in accordance with law and the same is liable to be set aside.
11. Be that as it may. Even the warning issued to petitioners No.1 and 2 appears to be not warranted before passing such order negligence has to be proved and established in accordance with law, then there after, the punishment has to be imposed. In that light also it is not in accordance with law and even without there being any -9- material and without there being negligence on the part of the petitioner such an order has been passed. Looking from any angle the said order is not sustainable in law. During the course of arguments it is brought to the notice of this Court that complainant-compromised the matter in criminal proceeding by contending that due to emotional out burst, misconceived facts he has filed the complaint. In that light if the other material is verified, it supports the case of the petitioner.
In the light of the discussion held by me above, the petition is allowed. The order dated 28.6.2014 vide enquiry No.40/2012 passed by the Karnataka Medical Council is hereby set aside.
Sd/-
JUDGE *AP/-