* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 13th April, 2015

% Date of Decision: 10th July, 2015

+ W.P.(C) 4220/2011

DR. RAM AVTAR GARG ..... Petitioner

Through: Mr. Arun K. Sharma, Advocate
with petitioner in person.

versus

MEDICAL COUNCIL OF INDIA AND ORS. .....Respondents

Through: Mr. T. Singhdev, Advocate for
R-1.
R-2 in person.
Mr. Praveen Khattar, Advocate
for R-3.

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

JUDGMENT

1. By way of present petition the petitioner impugns order dated

18.05.2011 passed by Ethics Committee of Medical Council of India
whereby the quantum of punishment was enhanced from „warning‟ as
issued by Delhi Medical Council vide order dated 07.12.2010 to „three
months removal of the name of the petitioner from the Indian Medical
Register/ State Medical Register‟.

2. The facts as culled out from the petition are that a child patient,
namely, Samiksha was brought to the casualty of Holy Family
Hospital, Okhla, New Delhi at around 8:00 p.m. on 04.12.2009. The

W.P.(C) No.4220/2011 Page 1 of 16

child was sick for three months with a history of losing weight,
recurrent vomiting and abdominal pain for the last 15 days and had not
passed urine since that morning. The child, on examination by Dr.
Shailesh Saxena a Resident Paediatrician on call duty, was found
malnourished, dehydrated and less active. Certain treatment was
prescribed in the casualty to be started just after admission.

3. On clinical examination of the child and history given in the

casualty, provisional diagnosis was noted as “Failure to thrive with
recurrent vomiting and moderate dehydration”. It is stated that the
Resident Paediatrician on call duty Dr. Shailesh Saxena had prescribed
the following investigation and treatment:

(i) Injection Emeset I.V.

(ii) Injection Rantac I.V.

(iii) I.V. Fluid with normal saline volus 200 ML start

Then N/2 saline + 5% Dextrose (1/100 KCL) 7.0 ml Per kg. per
hour in the first four hours.

Then N/2 saline + 5% Dextrose (1/100 KCL) 1.5 litre in 24

hours.

The child was admitted in Room No.324 at 8:30 p.m. on

04.12.2009 and her treatment was started. The child was further
examined in the room by Resident Paediatrician just after her
admission at 8:50 p.m.

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4. The relatives of the patient informed that they had earlier
consulted many Doctors in Faridabad in the month of November, 2009.
Previous ultrasound abdomen done in Faridabad showed “Mesenteric
Lymphadenopathy”. It is stated that relatives of the patient were
categorically told that the child was dehydrated and the first line of
treatment is correction of the dehydration for which I.V. Fluid had
been started. As the vitals of the child were stable and SpO2 was 97%
without oxygen, she was admitted in the room and not in the Paediatric
ICU. The child was seen in the midnight by Dr. Shailesh Saxena.
Since, the patient had not passed urine, therefore, she was given
normal saline I.V. Bolus 100 ML. After that the child passed urine.
The child was given medicines/ fluids thereafter also.

5. It is further stated that on 05.12.2009 at 3:00 a.m. IV N/2 saline

+ 5% Dextrose (1/100 KCL) started at the rate of 20 drops per minute
measuring about 60 ml per hour. At 9:00 a.m. I.V. Fluid was
discontinued as per the instructions of the petitioner as child was
taking oral Fluids. The child received 360 ML in 6 hours from 3:00
a.m. to 9:00 a.m. on 05.12.2009 and passed urine twice in the night.
The patient was also seen by Paediatric Resident Dr. Sachin Jain and
the petitioner, who is the Senior Consultant at 9:00 a.m. on 05.12.2009.
Further investigations and treatment were prescribed after seeing the
investigation reports. The patient was seen by Dr. Sachin Jain after
seeing X-Ray film in X-Ray Department at 12:20 p.m. on 05.12.2009
which showed right sided Pneumonia. The child was stable with no
respiratory distress. The petitioner was accordingly informed, who

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told Dr. Sachin Jain that the treatment for Pneumonia had already been
started on the basis of clinical examination in the morning.

6. The Paediatric Resident Doctor further saw the patient at 3:00

p.m. on 05.12.2009. The child was stable and there was no cyanosis
and distress noted. She was again seen by the Paediatric Resident
Doctor at 6:00 p.m. who directed starting of Nebulization with
Budecort as the patient had developed mild respiratory distress.
However, on 05.12.2009, at 7:00 p.m. the condition of the child all of a
sudden deteriorated. The Paediatric Resident Doctor on call Dr.
Sachin Jain came and examined the patient. Respiratory distress
increased and SpO2 fell to 89% with Oxygen. The patient was shifted
to Paediatric ICU where she was treated by Dr. Isha Khetarpal, a
Senior Paediatric Resident. The child had respiratory distress and was
not maintaining SpO2 with Oxygen. Senior Consultant Paediatrician
on call Dr. S. Warsi was informed and treatment was discussed with
her by the Senior Resident Paediatrician who also examined the patient
and explained the serious condition of the child to her relatives. It is
also stated that the patient had a cardiac arrest at 8:00 p.m. on
05.12.2009, thus, incubated Cardio Pulmonary Resuscitation was
conducted and the patient revived and was put on ventilatory support at
8:15 p.m. Necessary Fluids/ Injections were given to the patient.
When the patient had second cardiac arrest at 12:15 a.m. on
06.12.2009, I.V. Adrenaline repeated, Cardio Pulmonary Resuscitation
continued. On 06.12.2009 at 1:05 a.m. Cardio Pulmonary
Resuscitation continued, I.V. Adrenaline was repeated. However, the

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child could not be revived and declared dead at 1:08 a.m. on
06.12.2009.

7. A complaint was made by respondent No.2 to the Delhi Medical

Council (for short, „DMC‟), which issued notices to Dr. Y. Pande,
Medical Superintendent (MS), Dr. R.A. Garg (petitioner herein), Dr.
Shailesh Saxena, Dr. Sachin Jain, Dr. Praveen Kumar Rohtagi and Dr.
Isha Khetarpal of Holy Family Hospital who filed their reply. DMC
examined the complainant Mr. M.K. Gupta and the Doctors and
thereafter vide order dated 07.12.2010 held that Dr. R.A. Garg
(petitioner herein) and Dr. Sachin Jain failed to exercise reasonable
degree of skill, knowledge and care in the treatment of the deceased
child and issued warning to Dr. R.A. Garg (petitioner herein) and Dr.
Sachin Jain.

8. The complainant/ respondent No.2 thereafter filed an appeal

against the order of DMC dated 07.12.2010 before the Medical
Council of India (for short, „MCI‟). The Ethics Committee considered
the matter and passed the order dated 18.05.2011, which is impugned
in the present petition.

9. Learned counsel for the petitioner vehemently contended that

there was no new evidence before the Ethics Committee of MCI
because of which it has enhanced the quantum of punishment from
„warning‟ to „three months removal of the name of the petitioner from
Indian Medical Register as well as State Medical Register‟. He further
submitted that the Ethics Committee is to decide whether the line of

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treatment and medicines given were correct or not and this has been
upheld by both the Ethics Committee, DMC as well as MCI.

10. Learned counsel for the petitioner further contended that the
Ethics Committee consisted of Five Members who had heard the
appeal, but the order passed by the MCI is based on opinion received
from one Member of the Ethics Committee, which is bad in law.
There is error of facts in the impugned order passed by the MCI.

11. It was also contended by counsel for the petitioner that the
petitioner saw the child in the morning and advised the line of
treatment which is required and the said line of treatment was held to
be correct. Counsel for the petitioner also stated that the petitioner was
never informed about the condition of the child and on 05.12.2009
after 1:00 p.m., the second Consultant Dr. S. Warsi was on duty, who
saw the patient in the evening and as per the duty Roster Chart Dr. S.
Warsi was on duty from 1:00 p.m. till next day morning, which fact
has also been certified by the Director of the Holy Family Hospital.

12. Lastly it was also argued on behalf of the petitioner that in

response to the complaint of the respondent No.2, the Hospital had
already conducted an internal enquiry and exonerated all the Doctors
including the petitioner.

13. Per contra, learned counsel for respondent No.1 contended that
MCI rightly passed the impugned order after affording due opportunity
to the parties and decided to remove the name of the petitioner from
Indian Medical Register/ State Medical Register for a period of three
months on the ground that the petitioner was found to have committed

W.P.(C) No.4220/2011 Page 6 of 16

a case of professional misconduct and the petitioner did not exercise
due care and caution while treating the patient. He also submitted that
the order passed by the MCI is neither without jurisdiction nor in
violation of the principles of natural justice.

14. Respondent No.2/ complainant, who appeared in person and

argued himself, submitted that the petitioner was negligent in
performing his duty and failed to give proper treatment to the child.
He alleged that medical negligence and professional misconduct had
been conducted on the part of Doctors of Holy Family Hospital. He
further contended that the child was given excessive dose of I.V. Fluid
and the Augmentin Injection was not given to the patient. It was stated
by respondent No.2 that the child was brought to the Hospital for
check-up only as she had not passed urine since morning and having
problems of vomiting. The patient was not looked after by the Doctors
and no Doctor or medical staff performed their duties with requisite
care and skill and it was due to overdose of IVF to the child which
resulted in accumulation of Fluid in other body organs including lungs
which was the main cause of death of the child. Respondent No.2
alleged negligence on the part of the petitioner.

15. Learned counsel for respondent No.3/ DMC submitted that the
DMC considered the matter on complaint of the respondent No.2 dated
11.02.2010 and held that it appears to be a case of error in judgment on
the part of Doctors and by order dated 07.12.2010 issued warning to
the petitioner and Dr. Sachin Jain. The said order of DMC was never
challenged by the petitioner and thus attained finality.

W.P.(C) No.4220/2011 Page 7 of 16

16. I have given my thoughtful consideration to the submissions
made by learned counsel for the parties as well as respondent No.2,
who appeared in person. I have also perused the material on record.

17. The child was admitted in the night in Emergency and treatment
administered to the child was held to be correct. In this regard,
reference may be had to the order of DMC dated 07 th December, 2010
wherein the following observations were made: -

“……….

1. In light of the clinical condition with which the

patient presented to the said Hospital, the correct
diagnosis of failure to thrive with recurrent vomiting with
moderate dehydration was made and the line of treatment
adopted in the form of administration of I.V. fluid was as
per standard protocol. The quantity of I.V. fluid
administered was appropriate and there was no
overdose.”

18. Further, the MCI in its order dated 18.05.2011 also observed as
under: -

“………

Consultant examined the child 13 hours after

admission and no doctor examined the child between
9 am and 7 pm.
The child was admitted in the night, seen in the
emergency by qualified doctors, and correctly shifted to
Paediatrics ward, started on the acute care with
preliminary investigations. The Consultant, Dr. R.A.
Garg saw the child in the morning and advised the line of
management. Subsequently, as per case notes, has been

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 attended by doctors and nurses periodically. There may
have been difference of opinion in the management, but
there has been no negligence. Hence this ground of
challenge is NOT upheld and does not prove any
negligence by the treating team.”

19. Thus, both DMC and MCI were of the opinion that the treatment
was in line, there was no overdose and there was no negligence. The
petitioner only saw the child in the morning at 9:00 a.m. and he was on
call duty upto 1:00 p.m. on 05.12.2009 and Dr. S. Warsi, Senior
Consultant Paediatric Department was on call duty after 1:00 p.m. on
the said date. A certificate dated 20.09.2011 (Annexure P-1) issued by
Director, Holy Family Hospital to this effect is also on record. During
the course of arguments, the complainant/ respondent No.2 also
conceded that he never informed or called the petitioner either on
04.12.2009 or 05.12.2009 regarding the condition of the child. It is not
disputed by the complainant that the Doctors present there attended the
child.

20. When the complaint was made to DMC, it duly considered the
submissions of the parties and came to the following conclusion: -

“……..In the light of the above the Delhi Medical

Council make the following observations: -
1. In light of the clinical condition with which the
patient presented to the said Hospital, the correct
diagnosis of failure to thrive with recurrent vomiting with
moderate dehydration was made and the line of treatment
adopted in the form of administration of I.V. fluid was as
per standard protocol. The quality of I.V. fluid
administered was appropriate and there was no overdose.

W.P.(C) No.4220/2011 Page 9 of 16

 2. The observation of bilateral wheeze and crepts at 9
am (5.12.2009) on clinical examination was suggestive of
chest infection which warranted prescription of
antibiotics I.V. augmentin, I.V. gentamycin and
salbutamol neubulisation, being commonly used drugs
for treatment of pneumonia (right sided pneumonia as
confirmed by Chest X-ray). It is further noted that as per
records of the said Hospital, till 6 pm (5.12.2009), patient
was reported to be stable and it was only at 6 pm that
mild respiratory distress was noted with SPO2 of 87%
and oxygen was started. The patient was shifted to IPCU
at 7 pm. The patient was managed in ICU on antibiotics,
oxygen with ventilatory support, however, her condition
continued to deteriorate and the patient was declared
dead with ARDS being the probable cause of death. As
per the joint written statement of doctors of Holy Family
Hospital ARDS which appeared on 5.12.2009 in the
evening was continuum of the pre-existing pneumonia
for which antibiotic treatment had already been started in
the morning. It is further averred that ARDS can develop
in very short span of time.
The Delhi Medical Council observes that even if we
believe that diagnosis of pneumonia was made in the
morning and treatment started, there was failure to pick
up the deterioration in the child till evening leading to
respiratory failure. All the notes till evening suggest that
child was not so sick and had no respiratory distress.
These findings do not appear to correlate with the size of
consolidation. It is difficult to explain sudden
deterioration, infact it is more likely that monitoring was
not done adequately and deterioration was not picked up
till it was too late. A moderate consolidation is likely to
respond to augmentin but in case it does not, the patient
will deteriorate gradually and worsening can be picked
up if monitored carefully.
3. The Delhi Medical Council further found it very
disconcerting that in this case the primary consultant Dr.
R.A. Garg examined the patient only once, that too after

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 almost 13 hours of admission of patient in the hospital
and subsequently did not examine her even once. It has
been argued that after 1 pm (5.12.2009) Dr. R.A. Garg
was off duty and as per Holy Family Hospital policy, it
was customary that another consultant on call attends the
patient whenever required. It was further submitted that
in this case Dr. S. Warsi (Sr. Consultant Paediatrics) was
on call duty on 5.12.2009 with whom treatment was
discussed by Dr. Isha Khetarpal and Dr. S. Warsi
examined the patient in PICU. The Delhi Medical
Council notes that in this case, the patient was primarily
managed by resident doctors with the consultants
personally examining the patient just twice. The Delhi
Medical Council observes that as per records of the said
Hospital, Dr. R.A. Garg was the primary consultant and
thus he alongwith his Resident Dr. Sachin Jain were
primarily responsible for the treatment of late Samiksha
Gupta.
4. The Delhi Medical Council also directs Medical
Superintendent, Holy Family Hospital to review the
system in place in the said Hospital.”

21. Vide order dated 07th December, 2012 the DMC gave warning to
the petitioner and Dr. Sachin Jain. However, neither there was any
new evidence nor material before the MCI nor any plausible
justification was given for increasing the punishment from „warning‟
to „removal of the name of the petitioner for a period of three months‟.
The order of MCI dated 18.05.2011 also suffers from error of facts.
Dr. Sachin Jain was described as the Admitting Resident Doctor in the
order whereas he was not on duty on 04.12.2009. The Admitting
Doctor was Dr. Shailesh Saxena. Further, without providing any
justifiable reason, in the impugned order dated 18.05.2011, the
petitioner and Dr. Sachin Jain were described as negligent. However,

W.P.(C) No.4220/2011 Page 11 of 16

it has been stated in the impugned order that the petitioner and his team
were not negligent. It has also been stated in the order dated
18.05.2011 that Dr. Sachin Jain had prescribed I.V. Fluid on
04.12.2009 whereas Dr. Sachin Jain was not on duty and neither had
he prescribed I.V. Fluid. It has also been stated in the impugned order
that four Doctors treated the child whereas five Doctors including the
petitioner, Dr. S. Warsi, Dr. Shailesh Saxena, Dr. Sachin Jain and Dr.
Isha Khetarpal treated the child. The name of Dr. S. Warsi on whose
duty the patient had died had not been mentioned in the impugned
order. There is no reason as to why Dr. S. Warsi, Senior Consultant
Paedetrician was never summoned either by the DMC or by the MCI
as she was also part of treating team of Doctors and saw the child on
05.12.2009 at 8:00 p.m. and under whose duty the child had passed
away.

22. MCI in the impugned order has stated that the prescription of
injection Augmentin and injection Gentamicin is correct. Various
notings and entries in the chart of the patient clearly show and prove
the fact that the patient was attended to by various Doctors. This is so
held by the DMC as well as MCI and in the report of Medical
Superintendent Dr. Y. Pande, Managing Director of the Hospital. The
complainant/ respondent No.2 has failed to give any expert evidence to
substantiate his allegations.

23. At this juncture, it is pertinent to mention here that it has also

come to the knowledge of this Court that the meeting of the Ethics
Committee held on 08.03.2011 and the minutes of the Ethics

W.P.(C) No.4220/2011 Page 12 of 16

Committee do not bear signature of Dr. Anil Narang, expert Member.
No justifiable reason has been provided so as to indicate why the
signature of Dr. Anil Narang was not obtained on the aforementioned
minutes of meeting. Therefore, reasonable doubt appears about the
intention of the Ethics Committee and regarding the validity of the
quantum of punishment so determined.

24. Therefore, after perusing the record, no justifiable and plausible

ground is found for supporting the enhancement of punishment by
respondent No.1.

25. It must be remembered that all professionals including Doctors

can make errors of judgment but if they are severely punished for this,
no Doctor would be able to practice his vocation with equanimity.
Indiscriminate proceedings and decisions against Doctors are
counterproductive and serve the society no good. Such proceedings
inhibit the free exercise of judgment by professionals in a particular
situation. In Halsburry‟s laws of England Fourth Edition Volume 30,
the degree of skill and care required by a Medical Practitioner is stated
as follows: -

“35. Degree of skill and care required. The

practitioner must bring to his task a reasonable degree of
skill and knowledge, and must exercise a reasonable
degree of care. Neither the very highest nor a very low
degree of care and competence, judged in the light of the
particular circumstances of each case, is what the law
requires, and a person is not liable in negligence because
someone else of greater skill and knowledge would have
prescribed different treatment or operated in a different
way; nor is he guilty of negligence if he has acted in

W.P.(C) No.4220/2011 Page 13 of 16

 accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular
art, even though a body of adverse opinion also existed
among medical men.
Deviation from normal practice is not necessarily
evidence of negligence. To establish liability on that
basis it must be shown (1) that there is a usual and
normal practice; (2) that the defendant has not adopted it;
and (3) that the course in fact adopted is one no
professional man of ordinary skill would have taken had
he been acting with ordinary care.

…………..”

26. This Court is of the view that a Medical Practitioner is not liable
to be held negligent simply because things went wrong from
mischance or misadventure or through an error of judgment in
choosing one reasonable course of treatment in preference to another.
He would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field. There is
a tendency to confuse a reasonable person with an error free person.
An error of judgment may or may not be negligent. It only depends on
the nature of prevailing circumstances.

27. It may not be out of place to mention here that in the realm of
diagnosis and treatment there is ample scope for genuine difference of
opinion and one man clearly is not negligent merely because his
conclusion differs from that of another professional of the same skill.
The standard of care has to be judged in the light of knowledge
available at the time of the incident and not at the date of the trial. The
higher the acuteness in an emergency and the higher the complication,

W.P.(C) No.4220/2011 Page 14 of 16

the more are the chances of error of judgment. At times, the
professional is confronted with making a choice between the devil and
the deep sea and has to choose the lesser evil. The Doctor is often
called upon to adopt a procedure which involves higher element of
risk, but which he honestly believes as providing greater chances of
success for the patient rather than a procedure involving lesser risk but
higher chances of failure. Which course is more appropriate to follow,
would depend on the facts and circumstances of a given case but a
Doctor cannot be penalized if he adopts the former procedure, even if
it results in a failure. The usual practice prevalent now a days is to
obtain the consent of the patient or of the person in charge of the
patient, if the patient is not in a position to give consent before
adopting a given procedure.

28. There may be a few cases where an exceptionally brilliant

Doctor performs an operation or prescribes a treatment which has
never been tried before to save the life of a patient when no known
method of treatment is available. If the patient dies or suffers serious
harm due to such a measure taken by the Doctor, should the Doctor be
held liable? In my opinion, he should not be. Simply, because a
patient has not favourably responded to a treatment given by a Doctor,
the Doctor cannot be held straightaway liable by applying the doctrine
of res ipsa loquiter. No sensible Doctor would intentionally commit
an act or omission which would result in harm or injury to the patient
since his professional reputation would be at stake. A Doctor faced
with an emergency ordinarily tries his best to redeem the patient out of
his sufferings. He does not gain anything by acting with negligence or

W.P.(C) No.4220/2011 Page 15 of 16

by omitting to do an act. It will, therefore, be for the complainant to
clearly make out a case of negligence before a Doctor is charged with
or proceeded against. It is evident that Doctors and Hospitals need not
be unduly worried about the performance of their functions. The law
is a watch-dog and not a bloodhound and as long as Doctors do their
duty with reasonable care and caution, they should not be held liable
even if their treatment was unsuccessful.

29. In the light of aforesaid discussion, the petition is allowed and

the impugned order dated 18.05.2011 passed by the Ethics Committee
of Medical Council of India is set aside. No order as to costs.

(VED PRAKASH VAISH)

JUDGE
JULY 10th, 2015
hs

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