Formulate sentencing policy for delinquent doctors: Court Tells Medical council of India

MCI must have a sentencing policy in place for guidance of its Committees which are tasked with the 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.

New Delhi: The infamous Fortis "wrong foot" surgery took another steep turn recently when the bench of JusticeRajiv Shakdher at the Delhi High Court has asked the Medical Council of India to hear the matter afresh and while doing so, will give adequate opportunity to the parties concerned including the two concerned orthpedicians.

The court also directed the apex medical regulator formulate sentencing policy in place for guidance of its Committees which are tasked with the job of returning recommendations both, on the guilt and punishment to be accorded to a delinquent doctor

The direction came in response to 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. The case concerned a patient Ravi Rai,  who had fractured his right foot after slipping on a staircase in June last year, following which he was rushed to Fortis hospital in Shalimarbagh.

The petitioner was registered as an in-patient under the supervision of Dr. Maichand and Dr. Kakran. A diagnostic X-ray was conducted, on that very day, on the right foot of Mr. Rai. Since, Mr. Rai was informed that he had suffered a fracture on his right foot, he was advised to get a CT scan done of his right foot. Post the diagnostics, Mr. 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 Mr. Rai‟s left leg and spine were concerned, it was suggested to him that he should undertake physiotherapy.

The petitioner stated that record (X-ray), however, showed that though Mr. Rai had fractured his spine, information qua this aspect was not given to him. The Anaesthetist and the patient's physiotherapist also stated that they were not aware the fracture in the spine

Making a blunder, during the surgery, the doctor put multiple screws inside the left foot despite the right foot being marked with a marker.

Read also: New Delhi: Wrong Leg operated at Fortis Hospital, Shalimar Bagh

The Delhi Medical Council immediately took suo motu cognizance of the Media reports reporting the matter and upon inquiry, the council’s disciplinary panel has recommended removal of the names of the two orthopediciains from DMC’s State Medical Register for 180 days.

The Council’s disciplinary panel also that observed the doctors had also failed to detect fracture in the patient’s spine, despite it being visible in the X-ray. They wrongly put him on anesthesia and this could have impacted the patient in the long term.

“The patient, attendants or anaesthetists were never informed of any plan of surgery on the left foot and no consent for the same was taken."

"It is observed that the surgeons also failed to covey the suspicion of spine fracture to the anaesthetist before administration of spinal anaesthesia. It should have been avoided especially when the patient had suspicion of spine fracture,” the DMC panel said.

Appeals were made by both the parties challenging the DMC order before the Medical Council of India. MCI wide via order No.132428 dated 23.08.2017,

a) Exonerated Dr. Maichand completely on the ground that he was absent on the day of the surgery due to personal reasons and thus, was not present in the OT when surgery was performed on Mr. Rai. It was also observed that since Dr. Maichand was only involved in the planning of the operation, whereby, the decision taken was to operate the right leg and not the left leg and, therefore, whatever led to the operation of the left foot had no involvement of Dr. Maichand

2) In so far as Dr. Kakran is concerned the MCI sustained the view of the DMC, principally, on the ground that he had taken a decision to operate Mr. Rai’s left leg without either taking his or his attendants consent. The  conclusion reached was that Dr. Kakran had not exercised reasonable care while deciding to change course and thereby, performed surgery on Mr. Rai’s left foot as against what was planned earlier.

Challenging the MCI decision, the patient reached Delhi HC. The court noted the main contentions as being

1. First, whether MCI was right in exonerating Dr. Maichandcompletely?


2. Secondly, whether punishment accorded to Dr. Kakrancommensurated with the extent of its culpability?

After going through all the submissions the bench observed

Insofar as the first issue is concerned, in my view, 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.

The court also observed the fact that he failed to discharge that obligation is evident from the following:

(i) He failed to clinically examine Mr. Rai even when he complained of back pain and the X-ray showed that he had fractured his spinal cord.

(ii) He did not convey to the Physiotherapist i.e., Ms. Dipti Jha the fact that Mr. Rai had fractured his backbone and his left leg.

(iii) He did not ensure, the fact that Mr. Rai had fractured his backbone, was communicated to the Anaesthetist, Dr. Yatish Sharma.

(iv) Assuming that a decision was taken, even prior to the surgery by Dr. Maichand in consultation with Mr. Kakran, that in case swelling was found on the right foot on the day of surgery, the surgery would, instead be
performed on the left foot (which, to my mind was a false stand taken to justify the surgery on the left foot), was a decision which was not communicated to Mr. Rai.

(v) At no stage, did Mr. Maichand communicate to Mr. Rai that instead of him, Dr. Kakran would be performing the surgery.

As a result of these acts of omission and commission, Dr. Maichand, in my view, not only contributed to the avoidable trauma but also to the surgery being performed on Mr. Rai‟s left foot, which as per findings recorded by the DMC, would have healed after eight weeks, even if no surgery was performed.

The court then set aside the impugned MCI order

Therefore, for the foregoing reasons, I am unable to persuade myself that the decision of the MCI, insofar as Dr. Maichand was concerned, was correct. The MCI has, in fact, glossed over the findings of fact, recorded by the DMC, in its order. Thus, I am inclined to set aside MCI‟s order dated 23.08.2017, insofar as Dr. Maichand is concerned.

As regards Dr. Kakran, the only grievance of Mr. Rai is with regard to the punishment accorded to him. The court asked the MCI counsel, as to whether any policy had been formulated by the MCI, with regard to punishments to be accorded to delinquent doctors for infractions committed by them.The councel informed that no such policy had been formulated.

In my opinion, this aspect needs to be looked at, urgently, by MCI. 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 toreport on this aspect of the matter within the next three months.

Having said so, in my view, 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 given is grossly inadequate or grossly disproportionate.

The court then allowed the petition, and the matter is remanded to the MCI on the issue of quantum of punishment. The 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.

Furthermore, given the fact that Mr. Rai had to go surgery for his right foot at the Max Hospital, Shalimar Bagh, I am inclined to award cost of Rs.1 lakh. The Cost will be borne by Dr. Maichand and will be paid within a period of two weeks from the date of receipt of a copy of the order.