Provisions of Professional Misconduct against Doctors cannot be misused for recovering money: Karnataka HC

Bengaluru: Issuing directions for quashing the complaint of Negligence and Professional Misconduct against a doctor, the Karnataka High Court recently held that complainants, hospitals and disciplinary authorities such as the Karnataka Medical Council (KMC) cannot use provisions of laws regarding doctors' professional misconduct as a machinery for recovering money from them in guise of disciplinary proceedings.

Referring to this, the HC bench comprising of Justice Krishna S Dixit held, "The provisions of law i.e., Chapter VII of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 read with Section 15 of the Karnataka Medical Registration Act, 1961, cannot be used either by the complainant or by the disciplinary authority i.e., KMC as the machinery for recovery of the money, in the guise of disciplinary proceedings."

These observations were made by the bench while it was considering the plea by a doctor, who approached the Court after the hospital, where he was working as a visiting doctor, filed a complaint against him alleging "gross negligence and blatant professional misconduct" before the Karnataka Medical Council (KMC).

The matter goes back to 2011 when the petitioner doctor was a visiting doctor at a private hospital based in Bengaluru. Along with another consultant surgeon, the petitioner doctor had attended a patient, who underwent a serious surgical treatment at the hospital. However, due to some medical complications, the patient later got shifted to Apollo Hospital.

In October 2011, the petitioner doctor allegedly lodged an FIR against the patient's family after the wife of the patient and her father allegedly created some ruckus, manhandled the doctor and forcefully take Rs 80,000 from him. On the other hand, the patient's wife had also filed a complaint against the petitioner doctor for offences punishable under section 506 (criminal intimidation) and 338 (causing grievous hurt). Accordingly, police filed a 'B' report after investigating on the basis of the complaint filed by the patient party.

Following this, on October 19, 2011, the patient's wife visited the respondent hospital and demanded payment of Rs.40 Lakh towards reimbursement of Apollo Hospital Medical bills. They also issued a legal notice and asked the petitioner doctor and the respondent surgeon to reimburse the amount. Additionally, they demanded Rs 10 lakh as compensation.

After this, the concerned hospital also filed a complaint before KMC alleging professional misconduct against the petitioner. Accordingly, after the complaint got registered, the petitioner doctor had been issued the subject Notice and challenging the same, the petitioner approached the High Court. He prayed before the Court to declare that KMC has no power, competence or jurisdiction for entertaining the complaint lodged by the hospital.

While considering the matter, the HC bench took note of the fact that the complaint was filed not by the patient's family, but the hospital. At this outset, the bench noted,

"The complaint in question has been lodged before the Karnataka Medical Council by the 2nd Respondent – Hospital in which the services of the petitioner and the 3 rd Respondent were engaged. Thus, obviously the complaint is not from the side of aggrieved patient nor on his behalf. There is no explanation whatsoever for the patient's side for not making the complaint, even though they could have lodged an FIR with the Police. At least some explanation ought to have been offered by the 2nd Respondent-Hospital in its complaint itself. It is not that such a complaint is not maintainable in law, the definition of misconduct having been widened by the successive amendment to the Rules. Thus, the issue is not as to the maintainability of the complaint but its prima facie consideration-worthiness, in the light of other attending circumstances that are discussed infra."

Besides, the bench also took note of the fact that the wife of the patient did not file any statement of objections supporting the case of the hospital and even a memo was not filed adopting the same to the petition.

"Although some xerox copies of photographs of the patient assumedly snapped whilst he was on the operation theatre are produced in the midst of the hearing this day, from these photographs, nothing can be ascertained as to alleged misconduct of the petitioner. A cursory glance at these photographs irks an unassumed onlooker, that is beside the point, more particularly when the surgery was admittedly conducted by the 3rd Respondent-Senior Surgeon, the petitioner being only a Visiting Doctor in the 2nd Respondent – Hospital had only assisted. These facts raise a thick ring of doubt in the allegations," the court noted at this outset.

The bench also noticed that the police had filed a B report on the complaint lodged by the patient's wife against the petitioner doctor. Besides, the Court noted that filing of the cancellation report had been preceded by a considered expert opinion Victoria Hospital, Bengaluru. The expert opinion dealt with relevant information regarding the professional deficiency in medical service. 

Thereafter, a professor cum Head of the Department, Surgical Gastroenterology examined the reports of the treating hospital and declared that there was no medical negligence on the part of Dr. Nagesh and his team. At this outset, the bench also noted that the respondents had not claimed that the expert opinion was truncated, ill-informed or otherwise unworthy of credence.

Further, the Court took note of the legal notice sent by the hospital to the petitioner doctor and respondent surgeon. Referring to this, the Court noted,

"The contents of this Notice when construed in the light of other attending material, generates a reasonable impression that the 2nd Respondent – Hospital desired to recover from the Petitioner & 3rd Respondent-Surgeon, a sum of Rs.40 Lakh, contending that on the request of the patient's wife, her father & other family members, this amount was paid towards Apollo Hospital bills of the patient. Petitioner sent his reply dated 02.01.2012 denying the Notice claim and alleging a fowl arrangement between the 2nd Respondent – Hospital and the 4th Respondent. It is in the light of this, the complaint in question was put at the hands of KMC, by the 2nd Respondent – Hospital."

The bench also took the complaint filed by the hospital before KMC and noted,

"The 2nd Respondent in so many words, states "complications are known to occur in surgery." This is what the expert opinion of HOD of Gastroenterology, Victoria Hospital had also said vouching the professional qualification & efficiency of the petitioner and that there was no culpable negligence on his part."

Therefore, clarifying that the provisions of rules regarding professional misconduct cannot be used to gain money from doctors, the bench observed,

"The provisions of law i.e., Chapter VII of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 read with Section 15 of the Karnataka Medical Registration Act, 1961, cannot be used either by the complainant or by the disciplinary authority i.e., KMC as the machinery for recovery of the money, in the guise of disciplinary proceedings."

"A law cannot be used for a purpose for which it is not made vide HEYDON'S RULE (1584) 76 ER 637. The definition of 'misconduct' has been broadened by amendment to law, as passionately contended by learned counsel appearing for the 4th Respondent, though true, cannot come to the rescue of impugned proceedings," it added.

The HC bench also slammed KMC for registering the complaint without examining all the aspects, and noted,

"All the above aspects have not been examined by the 1st Respondent – KMC before registering the complaint in question and issuing notice to the petitioner. As already observed by the Apex Court, in matters of professional misconduct of a doctor, the disciplinary authority like the KMC has to act with due seriousness and read between the lines before registering the complaint, and without ascertaining the prima facie case worthy of investigation. It cannot act as a post office which transmits the mail to the addressee,."

"Setting in motion the disciplinary proceedings against the professionals and more particularly, the doctors, is a more serious matter than setting the criminal law in motion. Onset of such proceedings has deleterious effect on public interest since that would drive the delinquent doctor to 'defensive medicine' to the prejudice of the patient. Therefore, such proceedings cannot be initiated just for an askance. A preliminary enquiry is eminently warranted in cases like this," it further added.

At this outset, the bench also referred to the Supreme Court order in the case of Bombay Hospital and Medical Research Centre Vs. Asha Jaiswal, and Karnataka HC order in the case of Dr Ganesh Nayak vs. V Shamanna & Others.

Finally, providing relief to the doctor, the bench further observed, "All the above having been said, there is yet another aspect: the incident in question happened more than a decade ago. It is not the case of Medical Council that post incident any objections have been received about the professional conduct of the petitioner. The enquiry has been interdicted by a Coordinate Bench of this Court by the interim order, all through. Years have rolled and much water has flowed under the bridges; cause of justice would be served more by the quashment of impugned proceedings than by their continuance in the given circumstances. In the above circumstances, this petition succeeds; a Writ of Certiorari issues quashing the impugned complaint and the Notice, costs having been made easy."

However, the Court allowed the Hospital and the wife of the patient to pursue civil remedies and noted, "Liberty is reserved to the 2nd Respondent – Hospital and the 4th Respondent i.e., wife of the patient to pursue civil remedies in accordance with law, if they so choose. Nothing observed hereinabove would come in their way and that all contentions in that regard are also kept open."

To read the order, click on the link below

https://medicaldialogues.in/pdf_upload/karnataka-hc-order-187335.pdf

Also Read: MBBS seats cannot go to waste: HC allows admission to aspirant