Sri B P Suresh Kumar Vs M/S Fortis Hospitals

DR. RAVINDRAN ASSISTANT SURGEON, WORKING AT: M/s.FORTIS HOSPITAL, NO.154/9, BANNERGHATTA ROAD, OPP. INDIAN INSTITUTE OF MANAGEMENTBANGALORE, BANGALORE-560 076.

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DR DEEPAK ANAESTHETIST PETITIONERS NO.4 AND 5 ARE WORKING AT: M/s.FORTIS HOSPITAL, NO.154/9, BANNERGHATTA ROAD, OPP. INDIAN INSTITUTE OF MANAGEMENT - BANGALORE, BANGALORE-560 076.

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DR RAJANI BHAT CONSULTANT PULMONOLOGIST, RESIDING AT NO.197, 1ST FLOOR, 7TH MAIN, 4TH BLOCK, JAYANAGAR, BANGALORE-560 011.

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AND WORKING AT: M/s.APOLLO HOSPITAL, III BLOCK, JAYANAGAR, BANGALORE 560 011.

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KARNATAKA MEDICAL COUNCIL #70, 2^ND FLOOR, "VAIDYAKEEYA BHAVANA", K.R.ROAD, (NEAR BASVANAGUDI POST OFFICE)

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BASVANAGUDI, BANGALORE-560 004 REPRESNTED BY ITS CHAIRMAN.

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MEDICAL COUNCIL OF INDIA POCKET-14, SECTOR-8, DWARAKA, NEW DELHI-110 077 REPRESENTED BY ITS CHAIRMAN.

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…RESPONDENTS

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(BY SRI. K RAGHAVENDRA., ADVOCATE FOR R1, R2 AND R4R6;

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SRI. GOPINATH NARAYAN SHENOY., ADVOCATE FOR R3; R7 SERVED BUT UN-REPRESENTED; SRI. N. KHETTY, ADVOCATE FOR R8)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RELEVANT RECORDS, EXAMINE THE SAME; QUASH THE IMPUGNED ORDER PASSED BY THE KARNATAKA MEDICAL COUNCIL DATED 17.01.2013, THE R-7 VIDE ANNEXURE-B TO THE EXTENT OF EXONERATING THE R-1, 2, 4, 5 AND 6 HEREIN AND ETC.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL ORDER

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This petition is by the complainants in enquiry

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No.16/2010 before the Karnataka Medical Council alleging medical negligence against the respondents 2 to 6.

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2. Brief facts of the case:

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(a) That petitioner No.1 is the father of one Sanjay B. S. who was his second son. Second petitioner is the wife of said Sanjay B. S. That Sanjay B. S. passed away at the age of 35 years allegedly due to the medical negligence on the part of respondents 1 to 6.

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(b) Petitioners had filed a consumer dispute before the State Consumer Dispute Redressal Commission, Bengaluru in complaint No.146/2011, which was transferred to National Consumer Dispute Redressal Commission at New Delhi in view of pecuniary jurisdiction.

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(c) Simultaneously petitioners also filed a complaint against respondents 1 to 6 before the Karnataka Medical Council-respondent No.7 herein which was registered in Ref.No.KMC/ENQ/16/2010 seeking action against them on the ground of they being guilty of medical negligence. The respondent No.7 -Karnataka Medical Council by order dated 21.01.2013 exonerated respondents 1, 2, 4, 5 and 6 while held respondent No.3 guilty of medical negligence and consequently imposed punishment by removing his name from the Karnataka Medical Council Register for a period of six months with effect from 17.01.2013.

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(d) Not being satisfied petitioner herein preferred an appeal before Medical Council of India, the respondent No.8 herein, which was registered in Appeal No. MCI211(2)(518)/2010-ethics/35542. By order dated 21.10.2014, Medical Council of India-respondent No.8 not

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only accepted the order of the Karnataka Medical CouncilRespondent No.7, but also exonerated respondent No.3Dr.Jeevan Perera purportedly upon the recommendation made by the Ethics Committee.

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Being aggrieved the petitioners are before this Court.

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3. Learned counsel for the petitioners taking this Court through the records and extensively reading the grounds urged in the petition submits that when the Karnataka Medical Council-respondent No.7 had in categorical terms held respondent No.3- Dr. Jeevan Pereira being guilty of medical negligence, the Medical Council of India-Respondent No.8 ought not to have exonerated him on the purported recommendation made by the Ethics Committee. He submits the medical records indicate lack of care, complacency and deliberate medical negligence on the part of the respondents 1 to 6 which has not been taken note of by both Karnataka Medical Councilrespondent No.7 as well as Medical Council of India-respondent No.8. He submits, in the absence of any appeal being filed by respondent No.3, in the appeal filed by the petitioners, Medical Council of India-respondent No.8 ought not to have exonerated

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him. Non appreciation of evidence leads to perversity which is

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the case at hand. Therefore, he insists that petition be allowed.

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4. Heard and perused the records.

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5. It is settled principle of law that in the case of enquiry being conducted by the authorities, the scope of judicial review is limited, except in the case of substantive procedural irregularity or non consideration of the evidence produced leading to perversity. It is only these two grounds can this Court look into the matter. No substantive procedural lapse is pointed out by the learned counsel for the petitioners. However, he insists that as sufficient material made available on record to establish absolute negligence on the part of respondents 1 to 6 which is reiterated in paragraphs 16.1 to 16.17 to the writ petition. Therefore, he submits these aspects of the matter have not been taken into consideration by the respondent No.7 and respondent No.8 in the matter.

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6. Perusal of grounds at paragraphs 16.1 to 16.17 appears to be the grounds which were taken before the Medical Council of India- respondent No.8 as well as Karnataka Medical Councilrespondent No.7. Impugned order passed by

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respondent No.7 produced at Annexure-B which runs into 7 pages indicate that the parties therein were subjected to chief examination and cross-examination. Deposition of respondents 1 to 6 has also been placed on record. The grounds urged in the writ petition have also been subject matter of consideration of the said order. It is on consideration of these grounds, the Karnataka Medical council-respondent No.7 has found respondents 1, 2, 4, 5 and 6 to be innocent of the allegation while it has however found respondent No.3 to be guilty of medical negligence. Therefore it had imposed punishment by removing his name for six months. Adequacy of the punishment is not the question which can even be gone into.

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7. As regard to the order passed by the Medical Council of India-respondent No.8 is concerned, the petitioners are incorrect to submit that it is in their appeal Medical Council of India-respondent No.8 exonerated respondent No.3. Perusal of the said order indicate respondent No.3 had also filed an independent appeal before the Medical Council of Indiarespondent No.8, which was in turn referred to the Ethics Committee. The Ethics Committee after verifying and revisiting the records has recommended to exonerate even Dr. Jeevan

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Pereira. It is after the review of the matter by the Ethics Committee in its meeting stated to be held on 23^rd and 24^th August 2013 order of Medical Council of India had been passed. Relevant portion of the order of Medical Council of India reads

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as under:

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"The Ethics Committee heard the deposition of both the parties in detail. Sh. B. P. Suresh Kumar made his submission that none of the risk factors where assessed before the surgery of the patient. Dr. Sanjay Pai and Dr. Jeevan Pereira and Dr. Rajani Bhatt also made submission before the Committee. The Ethics Committee deliberated on the issue and after considering all the clinical records presented before it, observed that there was no medical negligence found on the part of the treating doctors Dr.Sanjay Pai and his team. The Ethics Committee decided to set aside the decision of Karnataka Medical Council against Dr.Jeevan Pereira. However, the Committee observed there was deficient service rendered by Dr. Rajani Bhat for not paying sufficient attention to the patient complaint and decided to issue a warning to Dr. Rajani Bhatt to be careful in future as per the Clause 2.4, 7.1 and 8.2 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which are as under:-

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"2.4 The Patient must not be neglected: A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients from necessary medical care.

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7.1 Violation of the Regulations: If he/she commits any violation of these Regulations.

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8.2 It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by

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pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations/ Societies/Bodies".

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Law with regard to scope of judicial review of enquiry proceedings by Disciplinary Authority is well settled. The Apex

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Court in the case of State Bank Of India Vs.Ramadhar Sao reported in 2025 SCC Online SC 1752 at paragraph No.13 has held as under:

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13. The legal position with regard to interference in inquiries or the orders passed by the Disciplinary Authority in exercise of powers of judicial review is well-settled. This court in SBI's case (supra) observed as under:

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“22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority which has been earlier examined by this Court…”

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(emphasis supplied)

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13.1. Law on the issue, that disciplinary authority is not required to record reason in detail if report of inquiry officer, is accepted. Reference can be made to judgment of this Court in Boloram Bordoloi's case (supra). Relevant para thereof is extracted below:

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11. … it is well settled that if the disciplinary authority accepts the findings recorded by the enquiry officer and

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passes an order, no detailed reasons are required to be recorded in the order imposing punishment. The punishment is imposed based on the findings recorded in the enquiry report, as such, no further elaborate reasons are required to be given by the disciplinary authority. As the departmental appeal was considered by the Board of Directors in the meeting held on 10-12-2005, the Board's decision is communicated vide order dated 21-12-2005 in Ref. No. LGB/I&V/Appeal/31/02/2005-06. In that view of the matter, we do not find any merit in the submission of the learned counsel for the appellant that the orders impugned are devoid of reasons.”

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(emphasis supplied)

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9. As already noted no procedural lapse pointed out, this

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Court do not find any reason to interfere in this petition. Petition is dismissed .

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Needless to state, this petition, orders passed by the commission is only to the extent of the issues raised and would

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not influence or take away the rights otherwise available to the petitioners to seek any other remedy available under law.

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Sd/(M.G.S. KAMAL) JUDGE