The Delhi High Court has opined that the Medical Council of India (MCI) should frame a policy with regard to punishment to be accorded to delinquent doctors for infractions committed by them and has asked the statutory body to report on this aspect within three months.
Justice Rajiv Shakdher said so while also awarding a cost of Rs 1 lakh to petitioner Ravi Rai who underwent the trauma of having been operated upon his left leg even as his right leg needed the surgery while his broken spinal cord completely missed the doctor’s attention.
The cost will be paid by Dr. Ashwani Maichand under whose supervision Rai was admitted as an in-patient at Fortis Hospital at Northwest Delhi’s Shalimar Bagh.
While hearing Rai’s petition against August 23, 2017 order passed by the MCI exonerating Dr. Maichand and Dr. Rahul Kakran, who had operated upon him.
“MCI must have a sentencing policy in place for the 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,” ordered Justice Shakdher.
The genesis of the case is a fall that Rai suffered an accident on June 19, 2016, in which he injured both his legs and lower back. He was rushed to Fortis Hospital where he was registered as an in-patient under the supervision of Dr. Maichand and Dr. Kakran. A diagnostic X-ray was conducted the same day on his right foot and he was informed that he had suffered a fracture.
He was advised to get a CT scan done of his right foot on June 20 and consequently, X-rays were conducted on Rai’s left leg and backbone followed by a CT scan of right leg and backbone.
Upon examination of the results obtained from these diagnostic tests, Rai was informed that he had suffered a "comminuted" fracture on his right foot and since his condition was serious, he would have to undergo a surgery which would involve fixation of screws on the right foot followed by a plaster-of-Paris cast.
As for injury to his left leg and spine, Maichand suggested that he should take physiotherapy even as the X-ray showed a fracture in the spine.
Rai was prepared for surgery on June 20, 2016, and his right leg was marked in preparation of surgery. Despite his fractured spine, he was administered anesthesia via the spinal cord.
When Rai recovered from anesthesia, post-surgery, he discovered that instead of his right foot, his left foot had been operated upon. The surgeon i.e., Dr. Kakran, who had performed the surgery, had inserted the screws in his left foot.
Rai then moved to Max Hospital and got his right leg operated.
The incident hit the headlines leading to the Delhi Medical Council taking suo motu cognizance of the case. Meanwhile, an FIR was registered against the doctors.
Besides this, the Disciplinary Committee of the DMC, based on media reports, representation of the police and on the complaint of Rai’s father, commenced its proceedings.
It concluded that the left leg though injured would have healed on its own within eight weeks. While also taking note of other misses, the DMC recommended that the names of Dr. Maichand and Dr. Kakran be removed from the State Medical Register for a period of 180 days.
Rai went to the MCI in appeal
Even as it took note of the findings of the disciplinary committee of DMC, the MCI went ahead to pass an order on August 28, 2017, exonerating Dr. Maichand on the ground that he was absent on the day of the surgery due to personal reasons.
As for Dr. Kakran, the MCI agreed with DMC that he had not exercised reasonable care while deciding to change course and thereby, performed surgery on Rai’s left foot as against what was planned earlier.
It was against this order that Rai had come to the high court.
After hearing all parties concerned, Justice Shakdher said, “…the MCI was wrong in exonerating Dr. Maichand, completely. What has come to fore clearly, is that Dr. Maichand was a senior doctor, under whose care and supervision, Mr. Rai had been admitted for treatment. The initial diagnostic test carried out on Mr. Rai had been seen by Dr. Maichand. Therefore, knowledge would have to be attributed to Dr. Maichand, with regard to the fact that Mr. Rai had suffered a comminuted fracture on the right foot and a hairline fracture on the left foot and spine. It has also emerged from the findings recorded by the DMC that Dr. Maichand and Dr. Kakran had agreed, even prior to the surgery, that if the swelling was found in the right foot, surgery would be performed on the left foot. It has further been brought to fore that this aspect of the matter was neither disclosed to Mr. Rai or the Anaesthetist, Dr. Yatish Sharma. Therefore, the fact that Dr. Maichand was not present during the course of surgery, for whatever reason, cannot completely efface his culpability in the matter. Dr. Maichand, as a senior doctor, owed a duty of care to Mr. Rai.”
On Rai’s challenge to the quantum of punishment awarded to Dr. Kakran, the high court remanded the matter back to MCI saying, “…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 is given is grossly inadequate or grossly disproportionate”.
Justice Shakdher ordered that “[t]he MCI, will hear the matter afresh and while doing so, will give adequate opportunity to the parties concerned, including Mr. Rai and Dr. Maichand. The MCI will complete this exercise at the earliest, though, not later than eight (8) weeks from the date of receipt of a copy of the order”.