WBCERC has no authority to adjudicate Medical Negligence Cases: Calcutta High Court

Clarifying its stand in this regard, the HC bench comprising Justice Arijit Banerjee and Justice Apurba Sinha Ray noted, "The negligence in detection of diseases and the allegation of not giving proper medicines to the patient and further improper diagnosis of the diseases are all matters or issues of medical negligence. Therefore, the said issues cannot be adjudicated by the Commission."

These observations were made by the Court while dismissing an order by WBCERC asking B.M. Birla Heart Research Centre to pay Rs 20 lakh compensation to the son of a deceased patient for "serious lack and deficiency in patient care service" during the treatment.

The Division bench, while dismissing the order of a single bench that upheld the WBCERC order in the matter, clearly stated that WBCERC cannot adjudicate medical negligence cases adding that appropriate forum for cases of medical negligence is NMC/state medical councils.

"....we make it clear that the complainant/aggrieved persons is/are at liberty to agitate all the issues regarding the medical negligence and deficient patient care service before the appropriate forum under the National Medical Commission Act, since the Indian Medical Council Act, 1956 has been repealed. In the event, the complainant approaches the forum as indicated above, such authority shall dispose of the matter without being influenced by any of the observations made in this judgment," the bench mentioned in the order.

History of the case: 

The matter concerned a patient who was admitted to BMBHRC in 2017 at CCU with chest pain along with shortness of breath and fever for three days. She was a known patient of hypertension and was having rheumatoid arthritis along with DMARD and suspected to have Acute Coronary Syndrome (ACS)(N Stemi). WBCERC started considering the matter based on a complaint filed by the patient's son after the patient died during treatment.

There were several allegations regarding the treatment of the patient. It was alleged that the doctor having only an MBBS degree conducted Echocardiography on the patient. Further, it was alleged that there was an unnecessary delay on the part of the treating doctors and the hospital to shift the patient to a multi-speciality hospital.

After considering relevant reports from the erstwhile Medical Council of India, West Bengal State Medical Council, and other materials on record, WBCERC concluded that even though the Commission refrained from dealing with the alleged medical negligence part of the matter, it found serious lack and deficiency in patient care service from the side of BMBHRC, and accordingly, it directed the latter institute to pay Rs 20 lakh compensation. While considering the plea challenging the WBCERC order, the Single Judge bench dismissed the plea holding that the conclusion arrived by the Commission was correct and justified.

Approaching the Division bench, the counsel for the hospital argued that even though the complaint was lodged alleging 'deficiency in service' and 'negligent treatment' against the hospital and its doctor (Dr. Dutta), the Commission went on to adjudicate the complaint in violation of provision of section 38(iii) of the West Bengal Clinical Establishment (Registration, Regulation, and Transparency) Act, 2017 which prohibits the Commission to adjudicate any issue of medical negligence.

Further, the counsel argued that even though WBCERC held that one of the doctors, Dr Giri, an MBBS with PGDCC from IGNOU was not competent enough to conduct and interpret the data of echocardiography, while the replies of the M.C.I pursuant to queries under the Right to Information Act, revealed that the Post Graduate Medical Education Regulation, 2000 is silent about such query. 

Apart from this, the counsel also highlighted the fact that in order to properly adjudicate the issue, the Commission ought to have a member who was a Cardiologist for proper understanding of the case and to come at a correct decision as to whether the Echo-Cardiogram findings indeed had any relation to the death of the patient. No expert opinion from an independent cardiologist was also not sought.

Courts observations

Making several remarks on the issue of medical negligence on the case, the court noted that  WBCERC has no authority to observe that the concerned doctor was not qualified to conduct and interpret the ECG report.

"The negligence in detection of diseases and the allegation of not giving proper medicines to the patient and further improper diagnosis of the diseases are all matters or issues of medical negligence. Therefore, the said issues cannot be adjudicated by the Commission. There was no sufficient material on record to hold, that delay, if any, was caused only because of the clinical establishment and not from the side of the patient party. Furthermore, there is no material to show how the patient party was misguided by the clinical establishment."

"...the issues of medical negligence and the issues of alleged deficient patient care services are so inextricably mingled up, the issues of patient care service cannot be taken up separately. In other words the issues of patient care service are dependent upon the competence of the concerned doctor or the ECG technician, and such technical issues which are required to be addressed before the specialised branch, could not be adjudicated by the Hon’ble Commission. The instant fact was also not considered by the Learned Single Judge. There are sufficient materials on record which suggest that there are certain palpable wrongs in the Hon’ble Commission’s order which were not properly addressed by the Learned Single Judge," 

 The bench opined that unless the Medical Council of West Bengal declared through specific and appropriate disciplinary action that Dr. Giri was an unqualified doctor, the Commissioner had no authority to declare Dr. Giri was unqualified to perform the ECG or to interpret the findings.

"It may happen that if the State Medical Council initiates a disciplinary proceeding regarding his alleged professional misconduct and Dr. Giri is able to prove before the disciplinary committee of the State Medical Council that he is entitled to practice cardiology and is further entitled to conduct ECG and interpret the report, he may be exonerated from the said allegation,

"When specific provisions have been made to enquire about the alleged professional misconduct by a specialised body, the Commission cannot enter into the arena of that specialised body which has been rightly kept reserved for the medical professionals. It is further found from Regulation 8.6 that such professional’s incompetence can only be judged by a peer group as per guidelines prescribed by Medical Council of India. Therefore, there are specific provisions for dealing with such alleged professional misconduct of a medical practitioner. Therefore, unless the State Medical Council or National Medical Commission declares that the concerned doctor is not qualified to perform ECG, the Commission cannot hold Dr. Giri as unqualified. In fact, Commission has no authority to declare a medical practitioner as unqualified or incompetent for lack of requisite qualifications as the same is beyond its authority,"

Referring to this, the bench noted that if the alleged incompetence of the concerned doctor is not found by the concerned SMC, it would be preposterous to say that BMBHRC engaged incompetent and unqualified doctor and is guilty of deficiency in patient’s care service.

In respect of the PG Diploma in Clinical Cardiology from IGNOU, the bench observed that the matter is under consideration of Delhi High Court, adding that decision of whether physician is falsely claiming to be a specialist and its discretionary actions lies with the councils only

"if  it is found that if a physician falsely claims to be a specialist he is guilty of misconduct as laid down in 7.20 under chapter 7 of the Regulations, 2002. But to declare a physician to be guilty of professional misconduct under 7.20 as aforesaid, the disciplinary action is required to be taken by the concerned Medical Council and after giving reasonable opportunity of hearing to such medical practitioner if the said medical council finds that he is guilty of committing professional misconduct, the said Council shall punish the delinquent by way of removing his name from the State Register permanently or for a limited period."

The bench opined that instead of considering the matter, WBCERC should have referred the matter to SMC or NMC for consideration. The court noted,

"...without going into the said question the Commission ought to have relegated the matter to the State Medical Council or National Medical Commission for consideration. If the State Medical Council or the National Medical Commission found that Dr. Giri is unqualified then BM Birla Heart Research Institute could be held to be responsible for deficient patient care service for engaging unqualified doctor. But if the State Medical Council or the National Medical Council did not find Dr. Giri as unqualified then the charges against BM Birla Heart Research Institute for providing deficient patient care service would not have stood as regards appointment of Dr. Giri."

Finally, the bench once again clarified that WBCERC can determine its own procedure for adjudicating the allegations under the Act, 2017. "But that does not mean that the Commission can ignore the fundamental principles of judicial procedure in adjudicating the same. From the judgement of the Commission we found several discrepancies which were required to be addressed by the Learned Single Judge," it noted.

The court elaborated on the role of WBCERC and noted,

"...the Commission has a duty under the law to see that unqualified doctors or technicians are not engaged in the clinical establishment but this duty of the Commission has to be discharged very cautiously and circumspectively."

Therefore, setting aside the WBCERC and the single bench order, the Division bench noted,

"...the issues of medical negligence and the issues of alleged deficient patient care services are so inextricably mingled up, the issues of patient care service cannot be taken up separately. In other words the issues of patient care service are dependent upon the competence of the concerned doctor or the ECG technician, and such technical issues which are required to be addressed before the specialised branch, could not be adjudicated by the Hon’ble Commission. The instant fact was also not considered by the Learned Single Judge. There are sufficient materials on record which suggest that there are certain palpable wrongs in the Hon’ble Commission’s order which were not properly addressed by the Learned Single Judge."

"The appellant is also given liberty to withdraw the sum of Rs. 15,00,000/- (Fifteen Lakhs) deposited with the office of the Registrar General, High Court at Calcutta in accordance with law, after the expiry of the period of appeal," it ordered.