The court noted the immense harassment and mental agony which the doctor had been suffering since August 2017 when the order for removal of his name was passed by the WBMC
West Bengal: Through a recent Judgement, a double bench of the Calcutta High Court provided relief to a medical practitioner who had been suspended by the West Bengal Medical Council for a period of 1 year in a case of medical negligence
The case concerned a medical practitioner in the city. In 1987, he obtained MBBS degree from the Medical College, Kolkata. Thereafter, in 1992, he got the DCH qualification from Chittaranjan Seva Sadan, Kolkata. In 2009 he obtained MD in Pediatrics and DM in neurology from PGIMER, Chandigarh. He worked in the Dhanbad Railway hospital as a paediatrician and thereafter with B. R. Singh Hospital. At the time of the incident, he was working with K. G. Hospital, in Chittaranjan, district Bardhaman as a specialist in Neurology.
The case goes back to 24th December 2010 when the regular ward doctors of the hospital were on leave and the doctor was placed in charge, although he was a specialist in neuroscience. On that day, a 19-year-old patient was admitted to the hospital with complaints of fever for two or three days accompanied by loose motion and nausea. The hospital had no blood testing facility. On clinical examination of the patient, the appellant prescribed a combination of two antibiotics and supporting drugs and IV fluid, namely, Cefotaxime, Ofloxacin, Rantac injection Paracetamol and IV fluid. Later, on 25th December 2010 on receipt of blood test reports, including the report of Widal test he advised the addition of a third antibiotic, Chloromycetin, suspecting typhoid. The patient remained under his care till 26th December 2010, post which the doctor relinquished the charge of the ward and the regular doctor took over
The patient sharply deteriorated on 29th December, 2010. She developed acute respiratory complication. A chest x-ray was performed. She was then released from K. G. Hospital by her family and taken to Mission Hospital, Duragapur. This hospital made the diagnosis that she was suffering from septicemia with multi organ failure. The chest x-ray and CT scan revealed pulmonary oedema and Acute Respiratory Distress Syndrome (ARDS). She expired that very night at 4.50 a.m. In the death certificate, the cause of death was stated to be acute respiratory distress syndrome together with sepsis plus multiple organ dysfunction syndromes.
Alleging criminal negligence the deceased’s father filed a complaint with the local police station which registered the complaint under IPC 304A. The family also addressed an appeal to the West Bengal Medical Council as well as the Medical Council of India; They also moved the State Consumer Disputes Redressal Commission where they did not prosecute the matter and the complaint was dismissed.
The Medical board set up by the Additional Chief Judicial Magistrate, in the matter opined that the medicines prescribed by the doctor were adequate for enteric fever and pneumonia. It is reported that based on this report, in 2014, the Additional Chief Judicial Magistrate discharged the appellant as prima facie no negligence could be attributed to him
Meanwhile, in 2011, the Medical Council of India asked the State Medical Council to enquire into the case and take action within six months under Clause 8.4 of the Indian Medical Council (promotional conduct, etiquette and ethics) Regulation, 2002.
After an enquiry, on 2nd August, 2016, the appellant was charge-sheeted by the West Bengal Medical Council under Section 17 read with Section 25 of the Bengal Medical Act, 1914, The charge-sheet was as follows:
“It appeared that there was some commission of errors in medical management of one patient, young girl, Purbasha Das at K.G. Hospital, Chittaranjan, which let to her death in multi-organ failure with respiratory complications, even though the case was initially appeared to be a case of Enteric Fever. Even though she was admitted with the diagnosis of RTI, no blood count or chest x-ray was performed. On 29-12-2010 the patient developed acuite respiratory complications and then chest x-ray was performed. She was subsequently referred to Mission Hospital, Durgapur where the diagnosis came out to be septicaemia with multi-organ failure. Chest x-ray and Ct revealed occurrence of probable pulmonary edema or ARDs. This quick onset indicated that between 27th and 29th December, 2010 there might be some errors in patient surveillance and on this score, you cannot be absolved of your responsibilities and that in relation there to you have been found prima facie guilty of infamous conduct in a professional respect.”
Thereupon, the appellant was charged with “error in patient surveillance” and “infamous conduct under the Bengal Medical Act, 2014.”
The West Bengal Medical Council considered the charges and found the appellant guilty of infamous conduct in a professional respect and passed order for removal of his name from the register of registered medical practitioners maintained by the West Bengal Medical Council for a period of one year under Section 25(a)(ii) of the Bengal Medical Act, 1914.
The West Bengal Medical Council at the time of passing the aforesaid order of removal of the name of the appellant from the register of medical practitioners observed the following:-
“(a) Dr. Snigdhendu Ghosh was not rational in continuation of treatment of the patient with three antibiotics at the initial stage.
(b)He was deficient in his approach in not advising any blood test to exclude the other prognosis of the case if any.
(c) He was deficient in his approach in not advising in any chest x-ray of the patient to exclude the other prognosis of the case, if any”.
Dissatisfied with the decision of the council, the doctor approached first approached the appellant authority, the state government and then a single bench on the high court, who refused to pass an interim order in the matter. Thereafter he challenged the said decision before a double bench
Reaching the same conclusion, but providing different/concurrent reasoning in two separate orders, the double bench of Justice Justice I.P.Mukerji and Justice Amrita Sinha set aside the suspension order of the West Bengal Medical Council directing the council to re-enter the name of the appellant in the register of medical practitioners immediately without any delay and preferably within a period of forty eight hours from the date of receipt of a copy of this order. The doctor was given at liberty to resume practice forthwith.
While giving the order, Justice IP Mukherji Observed
The contention of the appellant is absolutely right. He was not charged with having administered three antibiotics negligently. Yet he was tried for it. It was not proper for the Council or the appellate authority to hold that administration of three antibiotics without blood test and chest x-ray was not proper conduct on the part of the appellant, when he did not have the chance to explain his line of treatment. This is clear violation of the principles of natural justice
Justice Amrita Sinha observed
Applying the aforesaid principles laid down by the Hon’ble Supreme Court in the instant case, it can be concluded that the act of the appellant certainly cannot be held as ‘infamous conduct’. The punishment of penalty in the absence of any specific charge is patently illegal and gross violation of the principles of natural justice, equity and fair play. When two divergent and equally efficacious procedures for treatment was possible one by administrating two antibiotics and the other by administering lesser antibiotics adopting one would not amount to any error attracting the penalty of removal of the name of the appellant from the register of medical practitioners.
The court also noted immense harassment and mental agony which the appellant is suffering since August 2017 when the order for removal of his name was passed by the WBMC. Justice Sinha noted
We have noted that out of the penalty period of one year imposed on 18/21 August 2017 more than ten months have already elapsed. Less than two months are left for the petitioner to serve the entire period of punishment of removal of his name from the register of medical practitioners. He has already suffered enough due to the erroneous decision of the WBMC
Meanwhile Justice Mukherjee noted
I have not gone into the question of any loss and damage suffered by the appellant for being denied the right to practice from 18th August, 2017 till the date of this judgment and order. Such right of the appellant is kept open to be urged in a separate proceeding if he wants to initiate the same.