MBBS with IGNOU PGDCC performing Echo: Kolkata HC denied relief to hospital

Kolkata: Noting that the West Bengal Clinical Establishment Regulatory Commission (WBCERC) did not deal with the complaint of medical negligence against an MBBS doctor with IGNOU PGDCC,who was held unqualified to perform echocardiography, the Calcutta High Court has dismissed the petition filed by the hospital in the matter

Medical Dialogues had last year reported about the case wherein BM Birla Heart Research Centre (BMBHRC) had been directed by the West Bengal Clinical Establishment Regulatory Commission to pay Rs 20 lakh compensation to the family of a patient who died during treatment after concluding that two employees including one doctor at BM Birla Heart Research Centre in Alipore were not qualified to conduct and report echocardiography.

The case pertained to a female patient, known hypertensive who had come to the hospital with complaints of chest pain and shortness of breath. After 4 days of treatment she was shifted to Calcutta Medical Research Institute, where she died. Following her death, her family filed a complaint of negligence against the hospital with the commission.

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Besides this, the complainant had alleged that no echo screening report was given to them, whereas the hospital submitted an echo report dated 3rd May, 2017, whereby an echo was done by one Dr Giri who noted his findings and recorded his opinion and impression thereon. His authentication stated him as the "Head of Non-invasive department. Another echo screening report, dated 7th May 2017, was given, where the commission found that the screening was done on a portable machine and the findings were recorded and interpreted with impression by one Ms Chaitali, who was the Echocardiography Technician at the hospital.

Ongoing through their degrees, the commission found that Dr Giri had done his MD from Russia, which is equivalent to MBBS in India. He had received his registration from MCI after clearing the FMGE exam. Post this he was awarded a Post Graduate Degree in Clinical Cardiology ( PGDCC) from IGNOU, New Delhi.

The Commission noted that the doctor who held a PGDCC from IGNOU, which was not recognised by the council-which implied his basic qualification of MBBS was only valid and not his specialist qualification of PGDCC. The commission based on this held the doctor and the hospital deficient in service noting that the employment of the doctor as consultant in charge, NI department and engaging him for conducting non-invasive procedure and echocardiogram and to give study report interpreting the data available from such a procedure and on the basis decide the course of the treatment is not only detrimental to patient care service but also completely unauthorised and illegal. The commission held that this practice on the part of the Clinical establishment, BM Birla comes within the ambit of deficiency inpatient care service and amounts to irrational and unethical trade practice. The commission then directed the hospital to pay a compensation of Rs 20 lakh.

Challenging the order, the hospital and the doctor went to the high court

Now during the recent hearing on the case, the counsel appearing for the doctor contended that the Commission had no authority to look into the conduct of Dr. Giri with regard to the patient. He has contended that, since the Commission had no jurisdiction to consider whether Dr Giri was duly qualified to treat the patient and whether Dr Giri was guilty of any medical negligence, the Commission could not have arrived at the finding that, petitioner was guilty of rendering deficient service, and therefore, could not have awarded the compensation.

Observing the submissions, the bench noted

While considering an allegation of irrational and unethical trade practice, the Commission was necessarily called upon to decide as to whether, Dr. Giri was a properly trained medical personnel to attend the patient for the need of the patient. In doing so, the Commission considered the duties entrusted by the clinical establishment on Dr. Giri to discharge, the conduct of Dr. Giri in relation to the patient, the medical qualification of Dr. Giri and whether, on the basis of the medical qualification of Dr. Giri, and his conduct, he was to be considered as a properly trained medical personnel attending the patient in the circumstances in which, Dr. Giri attended the patient and whether the clinical establishment could have authorised Dr. Giri to do the same. Such an enquiry is within the jurisdiction of the Commission. In the facts of the present case, it cannot be said that, the Commission acted in excess of jurisdiction in considering the medical qualifications of Dr. Giri and arriving at the findings as noted in the impugned order.

On the allegation by the petitioner that the commission being an authority to decide on the matters of clinical establishments has pointed to the conduct of the doctor, the court observed

The Commission has found that, Dr. Giri was holding the charge of Consultant In Charge, Non-Invasive Department at the clinical establishment and conducting non-invasive cardiological procedures on the strength of such post graduate diploma in Clinical Cardiology. The Commission has referred to the communications of the Medical Council of India and West Bengal Medical Council issued by them to the Commission to the effect that, the Post Graduate Diploma in Clinical Cardiology awarded by Indira Gandhi National Open University is not recognised Post Graduate Medical Qualification, and therefore, a holder of such diploma is not entitled to practise in the speciality concerned and that, the diploma awarded by Indira Gandhi National Open University is not included in their schedule. In addition thereto, the Commission has noted in its impugned order that, Medical Council of India requested the Secretary of the Commission to take appropriate action in that regard….

… Commission, in the light of such educational qualifications of Dr. Ashok Giri, has noted the conduct of the Clinical Establishment in appointing Dr. Ashok Giri to hold the post of Consultant-in-Charge, Non-Invasive Department of the Clinical Establishment and conduct Non-Invasive Cardiology procedures on patients. It has found that, Dr. Giri had performed the Echocardiogram and interpreted the data in respect of the patient. In the impugned order, Commission has held that, the Clinical Establishment in entrusting Dr. Ashok Giri with the independent charge of Non-Invasive Department inclusive of conducting vital procedures like Echocardiogram, Colour Doppler Studies etc., is guilty of deficiency in patient care service and that, the clinical establishment indulged in irrational and unethical trade practice.

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Further, on the commission observance on the educational qualification of the technician, the bench noted that the petitioners has failed to substantiate that, the findings on account of such technician returned by the Commission, are perverse.

Commission has found that, Ms. Chaitali Kundu passed Higher Secondary Examination with Commerce and that, she pursued Electro-Cardiography Technician Course from Society for School of Medical Technology situated at Indian Mirror Street, Kolkata. The Commission has found that neither the institute nor the paramedical course conducted by such institute is recognised by the State Medical faculty. The Commission has held that, mere attending of few echocardiography seminars and conference does not make any person properly qualified and trained to monitor echocardiography procedure, to study the data and examine the vital parameters of the service recipient available from such procedure and then, to give opinion interpreting those data for next course of treatment.

The bench observed:

…The Commission in the impugned order has not awarded any punishment upon any of the doctors or the technician involved. It has proceeded to assess the involvement of the doctors and the technician in dealing with the patient, in a clinical establishment which comes within the purview of the Act of 2017, and found, the actions of the clinical establishment to comprise of deficient service, amongst others, and proceeded to award compensation for the same….

…Therefore, the Commission exercised jurisdiction in assessing the clinical establishment in appointing and authorising the personnel involved in attending to the patient concerned, at the clinical establishment.

…the Commission having received a complaint against a clinical establishment, enquired into the same, after affording the parties affected in such proceedings, an opportunity of hearing, passed the impugned order, granting compensation to the patient party. In the facts of the present case, therefore, it cannot be said that, the Commission acted in excess of its jurisdiction in awarding the compensation. While considering the complaint against a clinical establishment, a Commission is necessarily called upon to arrive at a finding as to whether, the dealings of the Clinical Establishment in relation to the patient was in accordance with law or not or whether, the Clinical Establishment was guilty of any deficiency in service. The proviso to Section 38(1)(iii) specifies that, a complaint of medical negligence against a medical professional will be dealt with by the State Medical Council. In the facts of the present case, the Commission did not deal with the complaint of medical negligence against a medical professional. The Commission did not award any punishment on any medical professional by the impugned order. Therefore, the impugned order cannot be said to be in excess of jurisdiction so far as the medical professionals are concerned…

Observing the aforesaid, the bench found no merit in the writ petition and dismissed the plea.

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