Unregistered hospital, BAMS duty doctor giving allopathy treatment: NCDRC upholds criminal negligence

The Presiding Member of the Commission, Dr Inderjit Singh dismissed the petition moved by the hospital and its director (the Allopathic doctor) noting that the State Commission has given a well-reasoned and speaking order, and that it do not find any illegality or material irregularity or jurisdictional error in the order issued by the two forums.

The apex consumer commission was dealing with a revision petition filed by the hospital and its director against the order issued by the District and the State Commission that held them guilty of medical negligence and directed to pay a compensation of Rs 5 lakh to the son of a patient who had died in the hospital in 2007.

The case pertains to a patient Om Prakash, who was brought to the hospital with abdominal pain. It was alleged by the complainant (the son) that the patient was not attended for two hours and later was prescribed medicines. The condition of the patient deteriorated and ultimately he collapsed and expired due to cardiac arrest.

Aggrieved, the son of the deceased filed a complaint with the District Forum alleging that the patient died due to willful and intentional negligence of the doctors and the hospital, who did not attend the patient nor he was given any treatment for two hours neither sent to ICU nor any competent or specialist doctor was called for treatment.

The complainant further alleged that the doctor who attended the patient introduced himself as MBBS but he does not hold any degree of MBBS instead is a BAMS doctor, and not even registered with the competent authority. The complainant added that he was not even entitled to prescribe treatment as per the complications arisen in E.C.G. taken, but was prescribing medicine of Allopathy, which clearly violated the guidelines and directions/orders passed by the Hon’ble Supreme Court of India. He eventually called another doctor, however, the condition of the patient, who had also suffered heart trouble deteriorated and he died.

The District Forum allowed the complainant and directed the doctors and the hospital to pay Rs.5,00,000/- to the complainant. The Forum's order was contested in the State Commission, however, the same was dismissed.

The Director of the hospital further approached the NCDRC challenging the orders passed by the District and the State Commission. He submitted that;

"The order passed by the State Commission is based on conjectures and surmises. The State Commission failed to appreciate that the objections filed by the petitioners that the Delhi Medical Council did not take into account that the medicine such as GTN Spray, injection Voveran, Injection Acilok, Tablet Nimecet P, Tablet Oflox TZ, Tablet Pantocid D and Gel Acifix were meant for the patient who had not disclosed whether he was suffering from any heart ailment earlier and as such the patient had his attendants complained that he has only having acidity and that is why the patient feeling uneasy...The factum of medical negligence could not be proved by an expert before the State Commission as well as before the District Forum as both the Fora below did not referred the matter to the medical board."

It was further argued that;

"The State Commission did not observe the case in correct prospective and further denied the opportunity to the Petitioner (the Director of the hospital, and the hospital) for getting the expert opinion as the application filed by the Petitioners was dismissed without cogent reasons and moreover, if the Petitioner objected to the DMC opinion, the matter should have been referred to the expert medical body for their opinion but in the instant case the same was denied and the valuable opportunity for obtaining the medical board opinion was not given to the Petitioner."

After hearing the contentions and goings through the submissions, the Commission noted that the Ayurvedic doctor was the Duty Doctor who attended the patient. Significantly, the court observed that although the petitioner doctor claimed that the hospital is registered/ approved with the competent authority however, he was not in a position to confirm whether their Hospital is authorized to do treatment of both the stream of medicine i.e., Ayurvedic and Allopathic.

The Commission further considered the DMC order that observed that as per the information received from Directorate of Health Services (DHS) vide letter in 2010, the hospital was not registered with Directorate of Health Services and accordingly, DHS was asked to take stringent actions against the Director (the Allopathic doctor) for running the hospital in violation of Delhi Nursing Home Registration Act.

The DMC Order further observed that the patient was admitted and administered treatment by the doctor who holds BAMS qualifications from Maharishi Dayanand University.

"For practicing system of Allopathy in NCT of Delhi a person should hold recognized medical qualifications, as per First, Second and Third Schedule of Indian Medical Council Act of 1956, and should be registered with DMC. Qualification of BAMS is not a recognized qualification as per aforementioned Schedules to Indian Medical Council Act, 1956 hence, the doctor being holder of BAMS, is neither qualified nor authorized to practice Allopathic system of medicine," the Council clarified.

Accordingly, the DMC came to the conclusion that; "The treating doctor, a person unqualified in the field of modern scientific system of medicine (Allopathy) acted recklessly by administering treatment, which was beyond his knowledge, skill and competence, with scant regard to life and safety of the patient and that the actions on the part of the BAMS doctor constitute an act of criminal negligence, for which he is liable to prosecuted under the Provision of Indian Penal Code in addition to Section 27 of Delhi Medical Council Act 1997. DMC also held the Director of the hospital guilty of professional misconduct for violation of provision of Regulation 1.9 and 1.6 of IMC (professional Conduct, etiquette and ethics) Regulation 2002 and also guilty of Medical Negligence. The Order further states that Order directing removal of name from the State Medical Register of the Director of the hospital shall come into force after 30 days from the date of Order."

Deliberating the case, the Commission observed;

"In this case, both the Fora below have given concurrent findings of medical negligence on the part of Petitioner 1 & 2 and Respondent-2 (the Director of the hospital, the hospital and the BAMS doctor) herein. DMC has also concluded that the BAMS doctor has acted recklessly and his actions constitute an act of criminal negligence. DMC also found the doctor (the Director of the hospital) guilty of professional misconduct and medical negligence. DMC also concluded that Petitioner-2 Hospital was running in violation of Delhi Nursing Home Regulation Act."

NCDRC referred to a case in Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269] ] that held the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. Subsequently, NCDRC pronounced that the;

"State Commission has given a well-reasoned and speaking order. We do not find any illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, this Revision Petition is dismissed with cost of Rs.25,000/- to be paid jointly by Petitioner-1 & Petitioner-2 to the Respondent No.1(the complainant) herein."

While dismissing off the revision petition, the Commission alluded to Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] case wherein it was held that,

“the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”

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