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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 20.10.2016

+ W.P.(C) 7320/2016

RASHMI DIXIT ..... Petitioner

versus

MEDICAL COUNCIL OF INDIA AND ANR..... Respondents

Advocates who appeared in the case:

For the Petitioner: Mr. Jai Dehadrai and Ms.Shivangi Gupta, Advocates

For the Respondents: Mr. T.Singhdev, Mr.Tarun Verma and Ms.Michelle,

Advocates

CORAM:-
HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT
20.10.2016

SANJEEV SACHDEVA, J (ORAL)

1. The petitioner has filed the present petition seeking directions
to respondent No.1- Medical Council of India to cancel the licence of
respondent No.2 or to at least suspend her registration for a temporary
period.

2. It is contended that the petitioner was admitted in Amar Leela

Hospital & Heart Centre on 22.05.2013. A surgery was carried out by
respondent No.2 and thereafter the petitioner was discharged on
25.05.2013. The condition of the petitioner deteriorated and,

W.P.(C) No.7320/2016 Page 1 of 13

accordingly, the petitioner was re-admitted in the Amar Leela
Hospital & Heart Centre on 25.05.2013. The petitioner was
discharged on 04.06.2013 and thereafter admitted in Ram Manohar
Lohia Hospital on 05.06.2013 as her condition became critical and
there was no improvement. On 15.06.2013, the petitioner underwent
another surgery in Ram Manohar Lohia and was subsequently
discharged.

3. The petitioner, on 12.07.2013, filed a complaint with the Delhi

Medical Council which complaint was decided on 17.04.2014 and the
Delhi Medical Council found that no case of medical negligence was
made out on the part of the doctors of Amar Leela Hospital & Heart
Centre in the treatment administered to the petitioner.

4. Aggrieved there from, the petitioner filed an appeal before

respondent No.1-Medical Council of India on 05.01.2016 which
appeal has been disposed of by the impugned order dated 05.05.2016
whereby respondent No.1 found respondent No.2 guilty of violating
regulations 1.4.1, 1.4.2 and 7.20 of the Indian Medical Council
(Profession Conduct, Etiquettes and Ethics) Regulations, 2002
(hereinafter referred to „the regulations‟) which inter alia require a
physician to display as suffix to their name only recognised medical
degrees or such certificate/diplomas/membership/honours which
confer profession knowledge or recognises any exemplary
qualification/achievements and require a physician not to claim to be a
specialist unless he has special qualification in that branch.

W.P.(C) No.7320/2016 Page 2 of 13

5. The Medical Council of India finding respondent No.2 guilty of
violating the said clauses issued a warning to respondent No.2 to be
more careful in future while explaining the gravity of the case to the
attendants of the patients.

6. Learned counsel for the petitioner contends that respondent

No.2 has been found guilty of professional misconduct and the only
punishment awarded is that of a warning whereas punishment of
removal or at least suspension from the rolls should have been
directed. It is contended that there is a prima facie finding of a
medical negligence insofar as respondent No.2 is concerned.

7. It is further contended that this Court should examine the line of

treatment given to the petitioner and return a finding that the same
was not appropriate and amounted to a negligence treatment. It is
further contended that Medical Council of India has not examined the
issue of the medical negligence and has only gone on the issue of
incorrect representation being made by respondent No.2.

8. Per contra, learned counsel for Medical Council of India, who

appears on advance notice, submits that the Delhi Medical Council,
consisting of experts in the field, who specifically examined the
treatment administered and have returned a finding that there was no
medical negligence insofar as the treatment, that was administered to
the petitioner, is concerned.

9. It is further contended that the Medical Council of India had

W.P.(C) No.7320/2016 Page 3 of 13

also perused all the documents available on record and the depositions
submitted by the parties and after discussing the matter in detail held
respondent No.2 guilty of violating the above referred clauses. It is
contended that since the Medical Council of India did not disagree
with the view taken by the Delhi Medical Council insofar as the
treatment that was administered to the petitioner was concerned, the
order does not accept the appeal of the petitioner on the said ground.

10. Learned counsel for respondent No.1 further submits that

whether or not there was medical negligence would be an issue, which
this Court in exercise of power under Article 226 would not be
required to go into as the same would involve disputed questions of
fact. Reliance is placed on the decision of the Division Bench in
Kamla Devi vs. Union of India & Ors. 2015(3) AD (Delhi) 232.

11. The issues raised by the petitioner are two-fold. One is with
regard to the treatment administered to the petitioner and the other is
with regard to the representation of respondent No.2 that respondent
No.2 was a specialist in the field of infertility when, admittedly,
respondent No.2 was not.

12. Insofar as the treatment administered to the petitioner is

concerned, the Delhi Medical Council in its order has recorded as
under:
“The Delhi Medical Council through its Executive
Committee examined a complaint of Shri Gyan Deep Exit
c/o, Rashmi Dixit r/o B-253, 3rd Floor, Mohan Garden,
Uttam Nagar, New Delhi – 110059, alleging medical

W.P.(C) No.7320/2016 Page 4 of 13

 negligence on the part of Dr. Madhu Chadda and Dr.
V.S. Solanki of Amar Leela Hospital, in the treatment
administered to complainant’s wife Smt. Rashmi Dixit at
Amar Leela Hospital, B-1/6, Janakpuri, Main Najafgarh
Road, New Delhi – 110058.
The Order of the Executive Committee dated 31st
October, 2014 is reproduced herein-below: -

“The Executive Committee of the Delhi Medical

Council examined a complaint of Shri Gyan Deep
Dixit c/o Rashmi Dixit r/o B-253, 3rd Floor, Mohan
Garden, Uttam Nagar, New Delhi – 110059
(referred hereinafter as the complainant), alleging
medical negligence on the part of Dr. Madhu
Chadda and Dr. V.S. Solanki of Amar Leela
Hospital, in the treatment administered to
complainant’s wife Smt. Rashmi Dixit (referred
hereinafter as the patient) at Amar Leela Hospital,
B-1/6, Janakpuri, Main Najafgarh Road, New
Delhi – 110058 (referred hereinafter as the said
Hospital).
The Executive Committee perused the complaint,
written statement of Dr. R.P. Singh, enclosing
therewith written statement of Dr. V.S. Solanki and
Dr. Madhu Chadda of Amar Leela Hospital, copy
of medical records of Amar Leela Hospital and
other document on record.

The Executive Committee observes that the patient

had undergone laproscopic surgery for torsion
right ovarian cyst with haemoperitoneum on 22nd
May, 2013 and was discharged on 25th May, 2013.
However, after one day of discharge, she
complained of pain, nausea and distention. She
was again brought to the said Hospital and was
admitted on 26th may, 2013 with the diagnosis of

W.P.(C) No.7320/2016 Page 5 of 13

 intestinal obstruction with ascitis, sepsis and
pleural effusion. She was kept on conservative
management, but the patient’s condition was not
improving, satisfactorily, this treatment was
continued upto 3rd week of June and after this
patient was advised to undergo another surgery
which was refused by the patient as per record of
the said Hospital. The patient was discharged on
request. She was subsequently admitted in RML
Hospital, New Delhi-11001 and operated for
diagnosis of pyoperitoneum and was discharged
from the hospital on 15.06.2013. It is observed
that after laparoscopic surgery
(heamoperitoneum), the patient can develop
infection in the abdominal cavity, for which
initially conservative treatment is appropriate.
However, if the patient does not improve, USG
guided aspiration is performed, if not, the
operative intervention is required which was done
at RML Hospital.
In light of the observations made herein-above, it
is, therefore, the decision of the Executive
Committee that the complainant’s wife Smt.
Rashmi Dixit was treated as per accepted
professional practices as such case and prima-
facie no case of medical negligence is made out on
the part of doctors of Amar Leela Hospital, in the
treatment administered to the complainant’s wife
Smt. Rashmi Dixit.

Complaint stands disposed.”

13. Perusal of the order of the Delhi Medical Council shows that
the Delhi Medical Council has examined the medical records of the
hospital as also the other documents on record and after examination

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of the same observed that after laparoscopic surgery
(heamoperitoneum), the patient could develop infection in the
abdominal cavity, for which initially conservative treatment is
appropriate. However, if the patient does not improve, USG guided
aspiration is performed, if not, the operative intervention is required
which was done at Ram Manohar Lohia Hospital. The Committee,
comprising of five specialist doctors, opined that the petitioner was
treated as per accepted Professional Practices and prima facie, no case
of medical negligence was made out on part of respondent No.2 in the
treatment administered to the petitioner.

14. The Indian Medical Council in the impugned order dated

05.05.2016 has noted that the Ethics Committee of the Council
investigated the matter and recorded the statements of the husband of
the petitioner, the doctors of the concerned hospital including
respondent No.2 and on perusal of all the documents available on
record, deposition submitted by both the parties and after deliberations
held respondent No.2 only guilty of violating the regulations 1.4.1,
1.4.2 and 7.20.

15. A perusal of the order also reveals that due consideration has
been granted by the Indian Medical Council to the entire record and
the medical treatment administered and thereafter respondent No.2
has been found guilty of only violating certain clauses of the
regulations for which a strict warning has been issued to respondent
No.2 and also been directed to refrain from indulging in such practices

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in future.

16. A perusal of the said order shows that there is due consideration
of the medical treatment administered to the petitioner. After, due
consideration the Medical Council of India has not found any reason
to disagree with the finding of the Delhi Medical Council that there
was no medical negligence or to agree with the petitioner that medical
treatment administered was negligent.

17. A Division Bench of this Court in Kamla Devi (Supra) has held
as under:

“8. In the aforesaid state of pleadings, we do not find

any error in the reasoning of the learned Single Judge
that the matter indeed involved disputed questions of fact
which could not have been adjudicated in writ
jurisdiction and are best left to be adjudicated in
appropriate jurisdiction where proper enquiry with
respect thereto can be made. Whether, as a matter of
fact, there was negligence on the part of the respondents
or not cannot be determined in writ proceedings under
Article 226 of the Constitution. These are matters of
evidence which, in fact, can be resolved only on the basis
of material which is produced in the course of the trial of
a suit. Where a claim intrinsically depends upon proof of
an act of medical negligence, such a claim cannot be
determined in exercise of a writ jurisdiction. Negligence
when alleged against any person is a question of fact
which can be decided by oral and documentary evidence
and the Court under writ jurisdiction cannot decide such
questions of fact. Lord Denning in Hucks Vs. Cole (1968)
118 N.L.J. 469 observed that a charge of professional
negligence against a medical man is serious and has far
more serious consequences affecting his professional

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 status and reputation and thus stands on a different
footing to a charge of negligence against the driver of a
motorcar.

9. Supreme Court in Tamil Nadu Electricity Board

Vs. Sumathi (2000) 4 SCC 543 held that in matter of
tortuous liability, the negligence of instrumentality or
servant of State involving disputed questions fact coupled
with unequivocal denial of liability, the remedy under
Article 226 may not be proper unless there is negligence
on the face of it. In the present case, though the son of the
appellant was refused admission to AIIMS on the ground
of non availability of bed but was admitted to Safdarjung
Hospital across the road from AIIMS, from where he was
admitted and treated though unfortunately
unsuccessfully. Thus it cannot be said that there was
Government Hospital situated in close vicinity can plan
and manage the admission amongst themselves and
merely because one refuses admission for lack of bed,
would not be negligence on the face when the other
admits the patient. The question whether admission if
provided in AIIMS could have saved the son of the
appellant is a question of fact which will have to be
proved. This Court cannot make a roving inquiry in the
absence of any definite material regarding negligence.

10. It is for such reasons only that the Supreme Court

in Martin F. D’souza Vs. Mohd. Ishfaq (2009) 3 SCC 1
held that in a case of medical negligence, ordinarily the
consumer forum or the criminal court should first refer
the matter to a competent doctor or a committee of
doctors and only when there is prima facie case of
medical negligence, notice to the doctor or the hospital
concerned should be issued. Mention in this context may
also be made of Neelu Sarin Vs. UOI (1991) Supp. 1 SCC
300 where the Supreme Court turned down a petition
under Article 32 of the Constitution claiming
compensation on the ground of doctor’s alleged

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 negligence for the reason that the basic facts constituting
negligence were disputed and it necessitated an
investigation into the disputed questions of fact and the
said exercise could not be undertaken in a writ petition.

11. It cannot be lost sight of that this Court has to do

justice to both the parties. Entertaining writ petitions
against the State and its instrumentalities in matters of
compensation for negligence even where the same entail
disputed questions of fact would create a mistaken
impression of doctors and hospitals as easy targets for
the dissatisfied patients and against which the Supreme
Court sounded caution in Indian Medical Association Vs.
V.P. Shantha (1995) 6 SCC 651.
12. In the aforesaid facts, we are also unable to
appreciate the contention of the appellant regarding
constitution of a Medical Board.

13. Though the counsel for the appellant also argued

that at least compensation for refusal of admission by
AIIMS, under whose treatment the son of the appellant
was, ought to have been granted but in the light of the
defence of AIIMS that it was the appellant herself who
had delayed the treatment of her son inspite of having
been rendered advise with respect thereto long ago, we
are of the opinion that the said aspect also needs to be
adjudicated in an appropriate fact finding fora. We
cannot also lose sight of the fact that treatments, for
which a bed is required, cannot be meted out, if all the
beds in the hospital are occupied. We are a country with
vast population and scarce medical resources. The
Courts would not be right in, as a matter of routine,
commencing investigations into the conduct of Doctors,
particularly of public hospitals, most of whom, despite
various constraints, are rendering yeoman service to sea
of humanity approaching such hospitals. Our Courts (see

W.P.(C) No.7320/2016 Page 10 of 13

 Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1) have
adopted the test of standard of care required of
professional men generally and medical practitioners in
particular, as laid down in Bolam Vs. Friern Hospital
Management Committee (1957) 2 All ER 118 and held
that the standard of care is judged in the light of
knowledge available at the time of the incident and not at
the date of trial and that when charge of negligence
arises out of failure to use some particular equipment,
the charge would fail if the equipment was not generally
available at that point of time on which it is suggested as
should have been used. It was further held that many
incidents involve a contribution from more than one
person and the tendency is to blame the last identifiable
element in the chain of causation, the person holding the
“smoking gun”. From the pleadings, we do not find any
case to commence any such investigation into the
conduct of any Doctor, at least in this jurisdiction. In Dr.
C.P. Sreekumar Vs. S. Ramanujan (2009) 7 SCC 130 it
was held that too much suspicion about the negligence of
attending Doctors and frequent interference by Courts
would be a very dangerous proposition as it would
prevent Doctors from taking decisions which could result
in complications and in this situation the patient would
be the ultimate sufferer. A doctor has to take snap
decisions and if the medical profession is hemmed by
threat of civil and criminal action, the consequence will
be loss to the patients. The Supreme Court thus cautioned
Courts that setting in motion law against medical
profession should be done cautiously and on the basis of
reasonably sure grounds.”

18. The Division Bench in Kamla Devi (Supra) has held that the
remedy under Article 226 would not be a proper remedy unless there
is a negligence on the face of it because the negligence involves the

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disputed questions of fact. Referring to the decision of the Supreme
Court in Martin F.D’souza v. Mohd. Ishfaq (2009) 3 SCC 1, the
Division Bench has held that ordinarily in a case of medical
negligence, there should be first reference to a competent doctor or a
committee of doctors and only when there is a prima facie case of
medical negligence should notice to the hospital or doctors be issued.

19. Even though this was in the context of Consumer Protection

Act or Criminal Prosecution the same would have some relevance in
the facts of the present case inasmuch as the Delhi Medical Council
consisting of five specialist doctors and the Indian Medical Council
also consisting specialist the doctors after considering the report of the
Ethics Committee which was approved by the Executive Council,
have returned a finding that there was no medical negligence in the
treatment administered to the petitioner. On the contrary, there is
categorical finding of the Delhi Medical Council that the treatment
administered to the petitioner was appropriate. Prima facie, no case
of medical negligence has been made out on the part of the doctors.

20. This court in exercise of power under Article 226 of this Court
would not venture into an investigation as to whether there was any
negligence or not as this would require detailed evidence and cross
examination of witnesses which is possible only at a trial.

21. The Indian Medical Council has adopted the “Peer judge Peer”
principle. Applying the said principle, Indian Medical Council on the
basis of the report of the Ethics Committee as approved by the

W.P.(C) No.7320/2016 Page 12 of 13

Executive Committee of the Indian Medical Council, has deemed it
appropriate to award the punishment of strict warning to respondent
No.2 with a direction to refrain from indulging in such practices in
future. I find no infirmity with the view taken by the Indian Medical
Council or any reason to interfere with the view taken.

22. In view of the above, I find no merit in the writ petition, The
same is, accordingly, dismissed. No Costs.

SANJEEV SACHDEVA
OCTOBER 20, 2016
sv

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