Allowed

Ms Sangeeta Bidarkar v. Karnataka Medical Council

Karnataka HC23 Nov 2022WP/7356/2020

Case brief

AI extract

What is this about?

This High Court of Karnataka allowed a writ petition challenging a non-speaking order of the Karnataka Medical Council that exonerated medical practitioners in a negligence complaint. Relying on coordinate bench precedents, the Court quashed the order for lack of reasoning and remitted the matter to the Council to decide afresh after a hearing. The Court held that administrative authorities exerci

What did the court decide?

The impugned order dated 03.08.2019 passed by the Karnataka Medical Council is quashed, and the matter is remitted to the Council to pass an appropriate reasoned order after a hearing.

Ms Sangeeta Bidarkar Vs Karnataka Medical Council — Medical Negligence | Karnataka HC (2022)

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WP No. 7356 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 7356 OF 2020 (GM-RES)

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BETWEEN:

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MS. SANGEETA BIDARKAR, W/O MURALI KRISHNA, AGED ABOUT 45 YEARS, RESIDING AT H.NO.301, 26^TH MAIN, 1^ST CROSS, K.R.LAYOUT, J.P.NAGAR, 6^TH PHASE, BENGALURU – 560 078.

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…PETITIONER

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(BY SRI. SIDDI SAVITHA ANNU.,ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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KARNATAKA MEDICAL COUNCIL, REPRESENTED BY ITS PRESIDENT, 16/6, MILLER TANK BED ROAD, VASANTHNAGAR, BENGALURU – 560 052.

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VISHWANTH, OPTHALMOLOGIST, NARAYANA NETHRALAYA, NARAYANA HRUDAYALAYA CAMPUS, NARAYANA HEALTH CITY, NO.258/A, BOMMASANDRA, HOSUR ROAD,

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WP No. 7356 of 2020

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BENGALURU – 560 009.

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THE MEDICAL SUPERINTENDENT, NARAYANA NETHRALAYA, NARAYANA HRUDAYALAYA CAMPUS, NARAYANA HELATH CITY, NO.258/A, BOMMASANDRA, HOSUR ROAD, BENGALURU – 560 099.

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THE MEDICAL SUPERINTENDENT, NARAYANA NETHRALAYA, 121/C, 1^ST ‘R’ BLOCK, RAJAJI NAGAR, BANGALORE – 560 010.

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SUDEEP DAS, NARAYANA NETHRALAYA, 121/C, 1^ST ‘R’ BLOCK, RAJAJI NAGAR, BENGALURU – 560 010.

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DR. K.BHUJANG SHETTY, CHAIRMAN, CATARCT AND PHAECOEMULSIFICATION SURGEON, NARAYANA NETHRALAYA, 121/C, 1^ST ‘R’ BLOCK, RAJAJI NAGAR, BENGALURU – 560 010.

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…RESPONDENTS

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(BY SRI.SHIVAYOGESH SHIVAYOGINATH, ADVOCATE FOR SMT.RATNA N SHIVAYOGINATH, ADVOCATE FOR R1; SRI.ASHOK B PATIL, ADVOCATE FOR R2, 3, 4 AND 6; SERVICE OF NOTICE TO R5 IS HELD SUFFICIENT VIDE ORDER DATED 29.10.2021)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE

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WP No. 7356 of 2020

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IMPUGNED ORDER OF THE R-1 DATED 03.08.2019 PLACE AS ANNEXURE-G AND ALLOW THE COMPLAINT FILED BY THE PETITIONER AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking the following

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prayer:

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A. Issue a suitable writ, order or direction to set aside the impugned order of the 1st Respondent dated 03/08/2019 bearing No.ENQ/05/2017, (placed as Annexure-G) and allow the complaint filed by the Petitioner

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B. Pass any other appropriate writ, order or direction as this Hon'ble Court deems fit to grant in the interests of justice and equity including the award of the costs of this Petition.

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Heard Sri. Sri. Siddi Savitha Annu, learned counsel

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appearing for the petitioner, Sri. Shivayogesh Shivayoginath, learned counsel appearing for respondent No.1, Sri. Ashok B., learned counsel appearing for respondent Nos.2 to 6 and have perused the material on record.

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Brief facts that leads the petitioner to this Court in

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the subject petition, as borne out from the pleadings, are as follows:

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The petitioner undergoes of lens extraction in the year 1998 and on 03.12.2011, visits Narayana Nethralaya for a routine check up with respondent No.2, an ophthalmologist.

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3.1. It transpires that respondent No.2 performed manual tonometry a hand-held unit to measure the Inter-ocular pressure and without explaining to the petitioner the consequences of the said procedure. According to the petitioner, the said procedure ought to have been performed only on administration of local anaesthesia. The performance of the said procedure leads to an injury in the eye of the petitioner causing extreme pain and sudden drop of her vision. On this allegation of medical negligence, the petitioner approaches respondent No.1 - Karnataka Medical Council by registering a complaint. The complaint is closed by the Council in terms of the following order:

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" After perusing all the documents, evidence of affidavit, cross examination and written arguments submitted by both the parties, Council has not made out

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WP No. 7356 of 2020

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any medical negligence on the part of the Respondents. Hence Respondents (1) to (5) are EXONERATED."

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The order though narrates the complaint and the defence

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of respondent No.2, no where it considered the complaint or the evidence that was let in. All that the Council would do is recording that perusing all the documents, evidence of affidavit, cross-examination and written arguments, there is no medical negligence proved against any of the respondents herein and they are all said to be exonerated.

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The order of this kind is found fault with in plethora

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of judgments rendered by this Court terming them to be cyclostyled orders of the closure of the proceedings. Two such orders are placed on record by the petitioner. The Co-ordinate Bench of this Court in W.P.No.51120/2016 disposed on 27.02.2019 has held as follows:

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"2. In this petition the petitioner inter alia seeks for quashment of the order dated 05.12.2015 passed by respondent No.1.

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3. From the averments made in the petition, it is evident that the principal ground of challenge to the aforesaid order is that the order is a non speaking order and has been passed without assigning any reasons. Learned counsel for the respondent No.1 was unable to point out from the record any reasons worth the name

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have been assigned by respondent No.1 while passing the impugned order. For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.

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4. In view of the well settled legal position facts of the case may be seen. In the instant case the relevant extract of the order is reproduced below:

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‘On perusal of the case sheets, documents, cross-examinations of the parties, written arguments, it is made out that Dr.Pankajakshi has not maintained proper cases sheet of the patient in the Hospital. For not maintaining the proper case sheet, respondent is warned for professional misconduct. There is no medical negligence in regards management of patient.’

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5. Thus, it is evident that no reasons worth the name have been assigned by respondent No.1 while passing the impugned order. The order is cryptic and suffers from the vice of non application of mind. It is accordingly quashed. The matter is remitted to the Medical Council to pass an order afresh after affording an opportunity of hearing to the petitioner and respondent No.2 by assigning reasons if advised."

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(emphasis supplied)

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4.1. Yet again, the Co-ordinate Bench of this Court in W.P.No.49526/2013 disposed on 13.03.2019 has held as follows:

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"2. The writ petition is admitted for hearing. With the consent of the parties, the matter is heard finally.

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3. In this petition under Articles 226 and 227 of the Constitution of India, the petitioner inter alia has assailed the validity of the order dated 25.07.2013 passed by the Karnataka Medical Council.

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4. The facts giving rise to filing of the writ petition briefly stated are that the petitioner is a General Surgeon, who at relevant point in time was working in Sagar Hospital, Banashankari, Bangalore. The patient namely, Mrs. Sunitha Jagannath consulted the petitioner on 20.05.2010. On examination, the petitioner found the patient to be in shock with an unrecordable pulse and Blood Pressure. Thereupon, the patient was admitted to I.C.U and resuscitated. The treatment was administrated to the aforesaid patient by the petitioner and another Doctor. However, the aforesaid patient expired after four months. Thereupon, the respondent No.2 filed a compliant before the Police Authority against the petitioner on 07.09.2010 for the alleged medical negligence of the petitioner. Thereupon, the police authority referred the matter to the Karnataka Medical Council. The Karnataka Medical Council, by an order dated 25.07.2013 has administrated warning to the petitioner. In the aforesaid factual background, the petitioner has approached this Court.

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5. Learned Senior Counsel for petitioner while inviting the attention of this Court to the impugned order dated 25.07.2013 submitted that the same suffers from vice of non-application of mind and no reasons whatsoever has been assigned.

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6. Learned Senior counsel for the petitioner in support of his submission has placed reliance on the decision of the Hon’ble Supreme Court in ‘CYRIL LASRADO (DEAD) BY LRS. AND OTHERS VS. JULIANA MARIA LASRADO AND ANOTHER’ [(2004) 7 SCC 431] and in ‘ORYX

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FISHERIES PRIVATE LIMITED VS. UNION OF INDIA AND OTHERS’ [(2010) 13 SCC 427].

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7. On the other hand, learned counsel for respondent No.1 has supported the impugned order dated 25.07.2013.

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8. I have considered the submission made by learned counsel for the parties.

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9. It is trite law that even a quasi-judicial authority is required to assign reasons for passing the order. In view of the decision laid down by the Supreme court in ‘VICTORIA MEMORIAL HALL vs. HOWRAH GANATANTRIK NAGRIK’, 2010 (3) SCC 732, reasons were held to be the heartbeat of every conclusion, apart from being an essential feature of the principles of natural justice, that ensure transparency and fairness, in the decision making process.

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10. In view of the aforesaid well settled legal principles, the authority passing the order is required to assign reasons while passing the impugned order. The relevant extract of the impugned order dated 25.07.2013 reads as under:

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“Discussion: Karnataka Medical Council is of the considered opinion that R(1) was hasty in proceeding with Laparoscopic repair of a perforated Duodenal ulcer without obtaining a C.T. Scan and fitness for surgery by a Physician. R(1) has failed to convince the Council about her Training, experience and competence in performing Laparoscopic Surgeries and she has not Registered her Post Graduate Qualification in K.M.C. There was a Technical defect in the supply of CO2 and R(3) is responsible for the deficiency in service. The duodenal bloc out and the ensuing complications and multiple Surgeries resulted in the death of the patient apart from the huge Hospital Bill. R(2) and the other Specialists have come to

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help R(1) and save the Patient and there was no Negligence on their part.”

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11. Thus, from the perusal of the relevant extract of the impugned order dated 25.07.2013, it is evident that no reasons whatsoever have been assigned by the Karnataka Medical Council for passing the impugned order. On the other hand, the burden has been cast upon the petitioner to prove her competence and experience in performing Laparoscopic Surgeries. Thus, the aforesaid approach of the Karnataka Medical Council cannot be said to be reasonable. In fact, the Karnataka Medical Council while passing the impugned order was required to appreciate whether or not a case of medical negligence was established by respondent No.2 by taking into account the material on record which was brought by the parties. However, instead of doing so, without assigning any reason, the impugned order has been passed to the effect that the petitioner has failed to prove her competence and experience.

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12. Therefore, the impugned order is cryptic and suffers from vice of non-application of mind. Therefore, the impugned order dated 25.07.2013 is quashed and set aside. The matter is referred to the Karnataka Medical Council to take a decision in the matter afresh, after affording an opportunity of hearing to the parties, in the light of the observation made supra.

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Accordingly, the writ petition is disposed of."

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(emphasis supplied)

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Both these petitions were considering identical orders

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that are passed by respondent No.1 – Karnataka Medical Council and has set them at naught and remitted the matter

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back to the hands of the Medical Council to pass appropriate orders in accordance with law by recording reasons for arriving at a conclusion of exoneration of the respondents therein.

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In the light of the issue standing covered on all its fours by the orders rendered by the Co-ordinate Bench of this Court ( supra) , I deem it appropriate to follow the same and obliterate the order passed, exonerating respondent Nos.1 to 5 and remitting the matter back to the hands of the Karnataka Medical Council to pass appropriate orders after recording reasons for arriving at a conclusion of exoneration of respondent Nos.1 to 5.

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The fresh orders by the Medical Council shall be passed after affording an opportunity of hearing to the complainant.

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For the aforesaid reasons, the following:

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ORDER

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I. Writ Petition is allowed.

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II. The order dated 03.08.2019 passed by respondent No.1 stands quashed.

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III. The matter is remitted back to the hands of the

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Karnataka Medical Council to pass appropriate orders in accordance with law bearing in mind the observations made in the course of this order.

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IV. The petitioner shall be afforded an opportunity of hearing.

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Sd/JUDGE

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SJK List No.: 1 Sl No.: 2

Ms Sangeeta Bidarkar v. Karnataka Medical Council

Case brief

What is this about?

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Ms Sangeeta Bidarkar v. Karnataka Medical Council

Case brief

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