The Delhi High Court has directed the Medical Council of India (MCI) to formulate a policy on punishments for “delinquent doctors”, for infractions committed by them. The Court has asked the MCI to report on this aspect within three months. The direction by Justice Rajiv Shakdher came in a writ petition challenging the findings of the MCI in a case of medical negligence by two doctors of Fortis Hospital, Shalimar Bagh, New Delhi.

After sustaining an injury to his lower limbs and lower back, the petitioner was admitted to the Fortis Hospital, Shalimar Bagh, under the supervision of one senior doctor, Dr. Ashwani Maichand, and Dr. Rahul Kakran.

After conducting the diagnostic test, it was revealed that the bone in the right foot had broken into many parts. Consequently, a decision was taken to perform surgery on the petitioner’s right foot and he was informed that the surgery would involve fixation of screws, followed by a plaster-of-paris cast.

An X-ray of the left foot and the backbone revealed that the petitioner had suffered a fracture in these two parts of his body as well.

However, during the course of surgery, an operation was performed by Dr. Kakran on the left foot, instead of the right foot, without the prior consent of the petitioner.

Before the Delhi Medical Council (DMC), it was submitted that Dr. Maichand and Dr. Kakran worked as a team and that even before the surgery, a decision was taken by the two of them to operate on the left foot, in case excessive swelling was found on the right foot.

The petitioner’s Physiotherapist as well as his Anaesthetist stated they were not even aware of the existence of a fracture on the patient’s left foot.

The DMC, in consonance with the finding of its Disciplinary Committee, recommended that the names of Dr. Maichand and Dr. Kakran be removed from the State Medical Register of the DMC for a period of 180 days as punishment.

It also opined that the fracture on the left foot would have united or fused even if the surgery was not performed.

The MCI upheld the punishment with respect to Dr. Kakran, but absolved Dr. Maichand completely on the ground that he was not present in the OT when surgery was performed, as he was absent on that day.

The High Court, however, reversed the finding with respect to Dr. Maichand.

The Court stated that since Dr. Maichand and Dr. Kakran had agreed prior to the surgery to operate on the left foot of the petitioner in case swelling was found in the right foot, the fact that Dr. Maichand was not present during the course of surgery cannot completely efface his culpability in the matter.

The Court, therefore, held that being a senior doctor, Dr. Maichand owed a duty of care to the petitioner, and failed to discharge his obligation.

Opining that the best judges of the conduct of a professional are his peers, the Court iterated that,

The only area available to a Court for interfering with the punishment accorded to a delinquent doctor by his peers is where the punishment given is grossly inadequate or grossly disproportionate.”

Thus, the Court stated,

MCI must have a sentencing policy in place for 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.”

The Court directed MCI to hear the matter afresh, while giving adequate opportunity to the parties concerned to be heard. The Court also awarded costs of Rs 1 lakh to the petitioner, which would be borne by Dr. Maichand.

The petitioner was represented through Advocates Abhinav Shrivastava and Rahul Gupta.

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