Madhu Karna v. Medical Council of India

1. On 10.9.2007, respondent No.3 brought his daughter Baby Kanak, aged about 2 years to Centre for Sight, with complaint of right eye squinting. Dr.Madhu Karna, the appellant in LPA No.569/2012 examined her and found the patient having right eye Eccentric fixation. On ophthalmoscopy the patient was found having retinal detachment in the right eye. Dr.Madhu Karna diagnosed RE- Superior temporal colobama with RD, sensory Exotropia and referred the patient to Retina Specialist. The child of the complainant was then examined by Dr.Avnindra Gupta, the appellant in LPA No.707/2012 who is a Retina Specialist. Dr.Avnindra Gupta recorded the finding of Hard exudates with Elevation with serious RD and made a diagnosis of Coates disease. The patient was advised review after 3-4 months. When the patient was brought for follow up on 28.11.2007, Dr.Madhu Karna advised squint surgery. The patient was then examined by some other doctors and ultimately referred to Dr.R.P.Centre, AIIMS. The patient again reported to private doctor who referred her to O.P. Surgeon for further management and left eye EUA to rule out any tumor. The patient was diagnosed by Dr.R.P.Centre of AIIMS to be suffering from “poorly differentiated retinoblastoma with large area of necrosis and calcification; Choroid in involved by tumour cells in its entire thickness(stage 4); optic nerve head is involved and the tumour extends beyond the retrolaminar space as well, however, the cut end is free of tumour.” Ultimately, the eye of the child had to be removed. Alleging negligence on the part, the doctors, respondent No.3 made a complaint to Delhi Medical Council. Vide order dated 19.4.2010, the following observations were made by Delhi Medical Council: “A two year old child with a right divergent squint for last one year (approx) and fundus showing an RD involving macula a diagnosis of Retinoblastoma should always be suspected and a B-scan USG, EUA and a CT/MRI of orbit and brain is mandatory immediately. In addition parents should be informed of the possibility of tumour in right eye. A squint surgery is not advisable till tumour is ruled out.” Both the appellants were issued a warning by Delhi Medical Council.

2. Respondent No.3 filed an appeal before Medical Council of India against the order passed by Delhi Medical Council. The matter was considered by Ethics Committee of the Medical Council at its meeting held on 10.5.2011, and the following order was passed:- “… In view of the abovementioned facts the committee is of the opinion that the decision of Delhi Medical Council is correct. And appeal of Mr.Mahato can not be upheld. However the committee noted that both the doctors are specially trained retinal surgeons from reputed institutes in the country specialized in eye surgery namely Arvind Eye Hospital and Shankar Netralaya. The committee further noted that in view of their very specialized training it is expected that they should not have committ4ed such an error of judgment. Therefore, the committee recommends that Dr Arvind Gupta and Dr Madhu Karna should attend their above mentioned institutes i.e. Arvind Eye Hospital and Shankar Netralaya for CME and Update for 15 days every year for next 3 years and submit compliance report with the certificate of completion of update from the concerned institutes to MCI ethics section every year for next three years. The committee directs MCI ethics section to inform this decision to the concerned institutes also.”

3. Being aggrieved from the order passed by Delhi Medical Council and Medical Council of India, the appellants filed WP(C) No.5058/2011 and WP(C) No.6084/2011, which came to be dismissed by a common order dated 16.9.2011. The learned Single Judge held that the appellants having not challenged the order of Delhi Medical Council were deemed to have accepted it as correct and could not seek to challenge the factual findings of error of judgment committed by them in treatment of the daughter of the complainant and the challenge in the writ petition, therefore, could at best be to the directions to them for undergoing education and update. The writ petition was disposed of with the following directions:-

4. Pursuant to the order passed by the learned Single Judge, the matter was again considered by the Ethics Committee of the Medical Council of India and the following order was passed:- “The Ethics Committee noted that as suggested by the High Court of New Delhi under WP(C) No.5058/2011 & WP(C) 6084/2011 dated 16th September, 2011, the above doctors need not undergo CME programs only in the hospitals where they have undergone sub specialty training. They have to undergo 15 days of continuous Medical Education Program ( CME) and continuous professional development program (CPD) every year for three years in Ophthalmology especially in their respective areas of sub specialty. They can participate in workshops, seminars, symposium, panel discussions, clinical meetings, journey clubs, teaching programs, etc. in recognized international, National and State Conferences and teaching institutions. They can participate in teaching programs in their own institutions of repute. They can participate in such programs in the institutions where they obtained their sub specialty training. Six monthly report of such training to be submitted to Secretary, Medical Council of India for the next three years as compliance.” In view of the above decision of Ethics Committee you are hereby directed to undergo 15 days of continuous Medical Education Program (CME) and continuous professional development program (CPD) every year for three years in Ophthalmology, especially in your respective areas of sub specialty. You can also participate in workshops, seminars, symposium, panel discussions, clinical meetings, journey clubs, teaching programs, etc. in recognized international, National and State Conferences and teaching institutions. They can participate in teaching programs in their own institutions of repute. They can participate in such programs in the institutions where they obtained their sub specialty training. You are further directed to submit six monthly report of such training to be submitted to Secretary, Medical Council of India for the next three years as compliance.”

5. LPA No.569/2012 and LPA No.707/2012 have been filed by Dr.Madhu Karna and Dr.Avnindra Gupta respectively, challenging the order dated 19.4.2010 passed by Delhi Medical Council, the order dated 16.9.2011 passed by the learned Single Judge in their writ petitions and the order dated 23.12.2011 passed by Medical Council of India. During the course of hearing of these appeals, when we pointed out to the learned counsel for the appellants that no penalty has been imposed upon the appellants by the Medical Council of India and the error of judgment found on their part does not amount to casting a stigma, the learned counsel for the appellants submitted that the complainant has since impleaded the appellants as parties to the complaint filed before the Consumer Disputes Redressal Commission and in case the impugned orders are not set aside, the said orders could be construed as a finding of negligence on the part of the appellants. He also submitted that in case it is clarified that in the complaint before the Consumer Disputes Redressal Commission, the said Commission will take its own view on the alleged negligence of the appellants, without taking recourse to the view taken by the learned Single Judge in the impugned order dated 16.9.2011, the appellants would like to withdraw these appeals. This course of action is agreed to by the learned counsel for respondent No.3.

6. We, therefore, dismiss the appeals as withdrawn with the observation that the Consumer Disputes Redressal Commission shall record its own findings on the alleged negligence of the appellants, without being influenced by the observations made and the view taken by the learned Single Judge in the impugned order dated 16.9.2011. The appeals and all the pending applications stands disposed of.

CHIEF JUSTICE V.K. JAIN, J APRIL 09, 2013 ks