Ravi Rai v. Medical Council of India and Ors.

8) However, as planned and as advised, Mr. Rai was prepared for surgery on 20.06.2016. Accordingly, Mr. Rai‟s right foot was marked using a marker, in preparation of surgery, which was to be performed on the said foot.

9) The record also shows that despite Mr. Rai having fractured his spine, he was administered anaesthesia via the spinal cord by Dr. Sharma.

9.1) What compounded this obvious error was that which followed thereafter. To the horror of Mr. Rai, when he recovered from anaesthesia, post surgery, he discovered that instead of his right foot, his left foot had been operated upon. The surgeon i.e. Dr. Kakran, who had performed the surgery, had inserted the screws in Mr. Rai‟s left foot. Having discovered the ghastly error, Mr. Rai had to perforce take a discharge from Fortis Hospital and, evidently, had himself admitted in Max Hospital, Shalimar Bagh, New Delhi, for getting his right foot operated.

10) Apparently, the injury suffered by Mr. Rai, on account of medical negligence, hit newspaper headlines which prompted DMC to take suo motu action in the matter.

11) In the meanwhile, it appears that an FIR No.424/2016, dated 22.06.2016, was registered in Police Station Shalimar Bagh, under Sections 336, 338 & 34 of the Indian Penal Code, 1860 (in short „IPC‟) against the delinquent doctors.

12) Parallelly, the Disciplinary Committee of the DMC, based on media reports, representation of the police and on the complaint of Mr. Rai‟s father, Mr. Ram Karan Rai, commenced its proceedings.

12.1) Before the Disciplinary Committee, it appears that a joint written statement was filed by Dr. Maichand and Dr. Kakran. A written statement was also filed by the anaesthetist i.e. Dr. Sharma. Findings of DMC's Disciplinary Committee:

13) The Disciplinary Committee, based on the material placed before it, which included the medical records of Fortis Hospital and other documents as also X-ray and the CT scan films, returned the following findings of fact:

(i) On 19.06.2016, Mr. Rai was admitted to Fortis Hospital. In the first instance, he was attended by a casualty medical officer and, subsequently, by a senior resident from the Department of Orthopaedics, who got his right foot and ankle X rayed.

(ii) Mr. Rai was, thereafter, given a below knee plaster-slab to support his right lower limb.

(iii) The case-sheet dated 19.06.2016, recorded the plan of Open

(iv) Mr. Rai was made to undergo physiotherapy on 20.06.2016, and made to stand up with the help of support and commence ankle exercise.

(v) The physiotherapist, Ms. Dipti Jha, (who was also examined by the

Disciplinary Committee), had stated that she was given verbal instructions to ambulate Mr. Rai with the help of a walker. (v)(a) This fact is recorded, evidently, in her case-sheet.

(vi) Furthermore, Ms. Dipti Jha deposed that she was aware that nonweight bearing on the right lower limb with the help of walker amounted to transmission of 80% weight on the weight bearing left lower limb. (vi)(a) Ms. Dipti Jha further stated that she was not informed that Mr. Rai had fractured his left foot or the ankle or even his spine.

(vii) Dr. Maichand, on being queried, had indicated that he had asked for

X-ray of left ankle and foot after he had noticed swelling on the left foot. There was a doubtful fracture of left calcaneus and, therefore, he had instructed that ice packs be put on the left foot and that only toe movements be permitted. (vii)(a) Apparently, it is in these circumstances that Dr. Maichand did not advise application of plaster-slab. (vii)(b) Pertinently, all of this, which, Dr. Maichand stated was not recorded in the case-sheet.

(viii) Dr. Maichand did not detect spinal fracture, though, the X-ray report showed fracture of anterior border of L-I spine. (viii)(a) On being queried, Dr. Maichand admitted that he never palpated the spine for any tenderness and that diagnosis of spine fracture was based only on history of pain and X-ray and not on any clinical examination. (viii)(b) Dr. Maichand also stated that he allowed the patient to stand with the help of a walker with only toe movements and that he had not instructed Ms. Dipti Jha, to allow partial weight bearing of left lower limb. (viii)(c) It is noted, though, by the Disciplinary Committee that Dr. Maichand's statement was not supported by the case-sheet record while the notes of Ms. Dipti Jha, show that she put weight on the left lower limb, and that she was not informed of any other fracture. This evidently emerged from the notes recorded by her on 20th and 21.06.2016. (viii)(d) Furthermore, the notes of 21.06.2016 of Ms. Dipti Jha, records that „left ankle pain-cum-laser IFT‟ was given along with the cold pack. (viii)(e) This, according to the Disciplinary Committee, was a wrong approach if the fractured calcaneus needed surgery. In other words, laser IFT is never given, if surgery is planned. Therefore, according to the Disciplinary Committee, there was no plan for surgery on 21.06.2016.

(ix) Pre-operative marking of the right lower limb was done on the second toe of right side distal to the margin of the plaster. There was no mark on the left lower limb.

(x) The anaesthetist i.e. Dr. Sharma, on being questioned, informed the

Committee that he was told that the surgery had to be done on the right side. Accordingly, he gave spinal Anaesthesia. Since, he got busy with the patient, he did not notice which limb was operated.

(xi) Dr. Kakran informed the Committee that the change in plan i.e. to operate the left foot instead of the right foot was made in the Operation Theatre (OT), when, after removing the plaster on the right lower limb, he found excessive swelling. (xi)(a) Dr. Kakran claimed that in these circumstances, he thought it fit to operate the less injured left side (which had a hairline fracture) to enable Mr. Rai to bear weight on the less painful side.

(xii) Dr. Maichand, on being queried, admitted that he and Dr. Kakran worked as a team and that it had been agreed between them, albeit, prior to the operation that in case there was excessive swelling found on the right side, the operation would be carried out on the left side. It was admitted though by Dr. Maichand that this was not conveyed to the patient and that even the change of plan to operate on the left side was not conveyed to Dr. Sharma, the Anaesthetist.

(xiii) Furthermore, the Committee found that no written consent of Mr. Rai was taken qua the change of plan or surgery being carried out on the left side.

(xiv) Upon Dr. Maichand being queried, he confirmed that whether or not surgery was conducted on the left foot with a doubtful hairline fracture, weight bearing would mend after eight weeks.

(xv) The Committee concluded that this statement, contradicted the advantage of early surgery in an un-displaced fracture, which was the basis on which, a stand was taken by the two surgeons that surgery of the left foot was in order.

(xvi) There was tampering of the record inasmuch as while there was no pre-operative mark on patient‟s left limb, the WHO Check-list showed the mark on the left side. The Committee concluded that if the Check-list was in order then, consent for surgery for the left foot ought to have been taken. Furthermore, the record at page No. 52 showed „cuttings‟ which could be on account of an attempted tampering of records.

14) In short, the Committee came to a conclusion that the surgery had been planned for the right foot as pre-operative diagnosis had found that Mr. Rai had suffered right side comminuted calcaneus fracture.

14.1) The Anaesthetist, Dr. Sharma, was informed, accordingly, that the surgery was to be conducted on the right side and that no consent for surgery qua the left foot was taken. According to the Committee, there was rationale in not performing surgery on an un-displaced fracture calcaneus suffered on the left side which would have united, even if operation was not performed after about eight weeks.

14.2) Furthermore, even when the case-sheet showed that Mr. Rai suffered a fracture in the spine, it was not clinically co-related though, Mr. Rai complained of back pain.

14.3) What made matters worse was that Mr. Rai was made to stand up and subjected to physiotherapy. The fracture in the spine was not communicated to Dr. Sharma, the Anaesthetist, which resulted in administration of spinal anaesthesia. Diagnostic reports with regard to the aforesaid were available on 19th and 20.06.2016 though not provided to Mr. Rai. DMC's Approach:

15) The DMC accepted the findings of its Disciplinary Committee and it was recommended that the names of Dr. Maichand and Dr. Kakran be removed from the State Medical Register of the DMC for a period of 180 days. The only modification that the DMC made to the recommendations of the Disciplinary Committee was that the removal of the names of Dr. Maichand and Dr. Kakran from the State Medical Register was directed to take effect after the expiry of 30 days from the date of the order. MCI's Approach:

16) Aggrieved by the order passed by DMC, appeals were preferred by Dr. Maichand and Dr. Kakran with the MCI. This apart, two separate appeals were also preferred by Mr. Rai with the MCI. These appeals, as indicated at the beginning of my narration, were disposed of by the MCI via two separate orders of even date, dated 23.08.2017.

16.1) The MCI, via order No.132428 dated 23.08.2017, exonerated Dr. Maichand completely on the ground that he was absent on the day of the surgery due to personal reasons and thus, was not present in the OT when surgery was performed on Mr. Rai. It was also observed that since Dr. Maichand was only involved in the planning of the operation, whereby, the decision taken was to operate the right leg and not the left leg and, therefore, whatever led to the operation of the left foot had no involvement of Dr. Maichand.

16.2) In so far as Dr. Kakran is concerned, MCI vide order No.132428 dated 23.08.2017, sustained the view of the DMC, principally, on the ground that he had taken a decision to operate Mr. Rai’s left leg without either taking his or his attendants consent. The conclusion reached was that Dr. Kakran had not exercised reasonable care while deciding to change course and thereby, performed surgery on Mr. Rai’s left foot as against what was planned earlier.

16.3) With these two orders, Mr. Rai’s appeals were also disposed of by the MCI. Dr. Kakran Foray in this Court: 17.) The record shows that Dr. Kakran, being aggrieved by the decision of the MCI, had preferred a writ petition in this Court. This writ petition which was numbered as W.P.(C) No.8099/2017.

17.1) The said, writ petition was disposed of at the admission stage itself by the Single Judge of this Court vide order dated 12.09.2017.

17.2) I am informed that no appeal has been preferred by Dr. Kakran against the aforementioned order. Submissions of Counsel:

18) Continuing with the narrative, Mr. Rai being aggrieved by the decision of the MCI, has preferred the captioned petitions. The submissions on behalf of Mr. Rai, were advanced by Mr. Abhinav Shrivastava, Advocate, assisted by Mr. Rahul Gupta, Advocate. In so far as, MCI was concerned, the submissions were made by Mr. T. Singh Dev, Advocate. As regards DMC, arguments were advanced by Mr. Praveen Khattar.

18.1) However, for some odd reasons, Dr. Maichand was not represented on that date. Though, Mr. K.G. Sharma, Advocate, had appeared for Dr. Maichand on previous dates.

19) The submissions made on behalf of Mr. Rai, insofar as Dr. Maichand was concerned, were directed against his complete exoneration by MCI, on the ground, that it was contrary to the findings recorded in the DMC’s order.

19.1) Mr. Shrivastava submitted that Dr. Maichand had admitted that he and Dr. Kakran worked as a team and that even prior to the surgery, a decision was taken that the left foot would be operated upon, in case, swelling was found on the right foot.

19.2) Therefore, according to the learned counsel, the stand taken that Dr. Maichand had no role to play in the decision taken by Dr. Kakran in the OT to perform surgery on the left foot as against the right foot, was erroneous.

19.3) Furthermore, it was contended by Mr. Shrivastava, the failure on the part of Dr. Maichand to clinically examine Mr. Rai even when the X-Ray showed a fractured spine, demonstrated that he acted without reasonable care and caution. This callousness displayed by Dr. Maichand, according to the learned counsel, led to spinal anaesthesia being administered to Mr. Rai.

19.4) The fact that the X-Ray showed that Mr. Rai’s left foot had suffered a hairline fracture was also, carelessly, not communicated to the physiotherapist, Dr. Dipti Jha. Dr. Dipti was also not informed that Mr. Rai had fractured his spine and, consequently, at the behest of Dr. Maichand, Mr. Rai underwent physiotherapy sessions whereas, he should have been advised complete bed rest.

19.5) It was emphasized by the learned counsel that Mr. Rai had, in fact, been admitted to the hospital under the care of Dr. Maichand. Dr. Maichand was Mr. Rai’s treating doctor and, therefore, if a decision was taken that surgery would be performed by Dr. Kakran, the same needed to be conveyed to Mr. Rai.

19.6) Thus, according to the counsel, complete exoneration of Dr. Maichand was grossly unfair and flew in the face of the record.

20) As regards Dr. Kakran, Mr. Shrivastava, submitted that there were no mitigating circumstances in place and, therefore, the punishment accorded to him was inadequate.

20.1) In this connection, learned counsel sought to highlight the fact that Dr. Kakran, contrary to what has been found by the MCI not only erred in not getting written consent from Mr. Rai for operating his left foot but also erred in performing surgery on the left foot when it was not required.

20.2) By virtue of the surgery, Mr. Shrivastava said, Mr. Rai was put to unnecessary pain and trauma which could have been avoided by allowing the left foot to heal on its own. The fact that the left foot could heal on its own, according to the learned counsel, clearly emerged from the findings recorded in DMC’s order.

20.3) It was highlighted that before the DMC, Dr. Maichand, who, was a treating doctor had clearly admitted that the left foot would have healed within 8 weeks, whether or not surgery was performed. Mr. Shrivastava, stressed, that in fact, it was based on this response of Dr. Maichand, that DMC concluded that the justification for early surgery of the left foot was not made out.

20.4) According to learned counsel, given the grave act of medical negligence committed by Dr. Kakran, he should have been barred for life by MCI.

21) Insofar as Mr. Singhdev and Mr. Khattar are concerned, they relied upon the orders passed by the respective bodies, whom, they represented i.e. MCI and DMC respectively.

21.1) Therefore, while Mr. Singhdev refuted the assertions made on behalf of Mr. Rai, Mr. Khattar substantially supported the stand taken on behalf of Mr. Rai, on merits. Insofar as the enhancement of punishment qua Dr. Kakran is concerned, he chose to rely upon the conclusion reached by DMC. Analysis and Reasons:

22) I have heard learned counsel for the parties and perused the record. Clearly, on perusal of the record, following has emerged: -

(i) Mr. Rai, on sustaining an injury to his lower limbs and lower back, was admitted to the Fortis Hospital on 19.06.2016, under the supervision of Dr. Maichand, Senior doctor, and Dr. Kakran.

(ii) On 19.06.2016, an X-Ray was carried out vis-a-vis Mr. Rai's right foot followed by CT-Scan of the same foot on 20.06.2016.

(iii) An X-Ray of Mr. Rai’s left foot and backbone was conducted on

20.06.2016. On that very day, a CT-Scan of Mr. Rai's backbone was also carried out. The diagnostic test carried out revealed that the bone in the right foot had broken into many parts. In other words, it was a condition of comminuted fracture. Consequently, a decision was taken to perform a surgery on Mr. Rai‟s right foot. He was informed that the surgery would involve fixation of screws, followed by a plaster-of-paris cast.

(iv) The X-ray of the left foot and the backbone revealed that Mr. Rai had suffered a fracture in these two parts of his body as well.

(v) Mr. Rai undertook two physiotherapy sessions despite the X-ray showing that he had fractured his spinal cord. The Physiotherapist, Dr. Dipti Jha, indicated that she was not informed that Mr. Rai had suffered a fracture in the left foot and the spine.

(vi) The anaesthetist, Dr. Yatish Sharma, was also informed only about the fracture in the right foot.

(vii) Prior to the surgery, the right foot was marked, as the plan was to perform surgery only on that foot.

(viii) The WHO-Check list, though, showed a marking made on the left side, the case record at page 52 showed that certain parts had been scored out. According to the DMC, both suggested tampering of records.

(ix) No consent of Mr. Rai was obtained, prior to the surgery with regard to the possibility of the operation being performed on the left foot. The DMC found that there was “un-displaced” fracture calcaneus on the left foot, which would have united or fused after eight (8) weeks, even if surgery was not performed.

(x) Dr. Maichand had admitted before the DMC that he and Dr. Kakran worked as a team and that even before the surgery, a decision was taken by the two of them to operate the left foot, in case excessive swelling was found on the right foot. It was also found by the DMC that Dr. Maichand had not conveyed this aspect either to Mr. Rai or the Anaesthetist, Dr. Yatish Sharma.

23) Given these findings of fact, what is required to be considered is the following issues: First, whether MCI was right in exonerating Dr. Maichand completely? Secondly, whether punishment accorded to Dr. Kakran commensurated with the extent of its culpability?

24) Insofar as the first issue is concerned, in my view, the MCI was wrong in exonerating Dr. Maichand, completely. What has come to fore clearly, is that, Dr. Maichand was a senior doctor, under whose care and supervision, Mr. Rai had been admitted for treatment. The initial diagnostic test carried out on Mr. Rai had been seen by Dr. Maichand.

24.1) Therefore, knowledge would have to be attributed to Dr. Maichand, with regard to the fact that Mr. Rai had suffered a comminuted fracture on the right foot and a hairline fracture on the left foot and spine.

24.2) It has also emerged from the findings recorded by the DMC that Dr. Maichand and Dr. Kakran had agreed, even prior to the surgery, that if swelling was found in the right foot, surgery would be performed on the left foot. It has further been brought to fore that this aspect of the matter was neither disclosed to Mr. Rai or the Anaesthetist, Dr. Yatish Sharma. Therefore, the fact that Dr. Maichand was not present during the course of surgery, for whatever reason, cannot completely efface his culpability in the matter. Dr. Maichand, as a senior doctor, owed duty of care to Mr. Rai. The fact that he failed to discharge that obligation is evident from the following:

(i) He failed to clinically examine Mr. Rai even when he complained of back pain and the X-ray showed that he had fractured his spinal cord.

(ii) He did not convey to the Physiotherapist i.e., Ms. Dipti Jha the fact that Mr. Rai had fractured his backbone and his left leg.

(iii) He did not ensure, the fact that Mr. Rai had fractured his backbone, was communicated to the Anaesthetist, Dr. Yatish Sharma.

(iv) Assuming that a decision was taken, even prior to the surgery by Dr.

Maichand in consultation with Mr. Kakran, that in case swelling was found on the right foot on the day of surgery, the surgery would, instead be performed on the left foot (which, to my mind was a false stand taken to justify the surgery on the left foot), was a decision which was not communicated to Mr. Rai.

(v) At no stage, did Mr. Maichand communicate to Mr. Rai that instead of him, Dr. Kakran would be performing the surgery.

25) As a result of these acts of omission and commission, Dr. Maichand, in my view, not only contributed to the avoidable trauma but also to the surgery being performed on Mr. Rai‟s left foot, which as per findings recorded by the DMC, would have healed after eight weeks, even if no surgery was performed. An aspect which was not disputed by Dr. Maichand in his deposition before the DMC. Furthermore, as alluded to above, Dr. Maichand‟s negligence, exposed Mr. Rai to trauma of not only having to undergo the surgery, which was not required to be done, including screws being inserted in the left foot which would have healed, even otherwise, naturally within eight (8) weeks, but was also, exposed him to the danger and after effects of receiving anaesthesia in a fractured spinal cord and undergoing physiotherapy sessions.

26) Therefore, for the foregoing reasons, I am unable to persuade myself that the decision of the MCI, insofar as Dr. Maichand was concerned, was correct. The MCI has, in fact, glossed over the findings of fact, recorded by the DMC, in its order. Thus, I am inclined to set aside MCI‟s order dated 23.08.2017, insofar as Dr. Maichand is concerned.

27) As regards Dr. Kakran, the only grievance of Mr. Rai is with regard to the punishment accorded to him. In this context, I had asked Mr. Singhdev, who made submissions on behalf of the MCI, as to whether any policy had been formulated by the MCI, with regard to punishments to be accorded to delinquent doctors for infractions committed by them.

28) Mr. Singhdev informed me that no such policy had been formulated. In my opinion, this aspect needs to be looked at, urgently, by MCI. MCI must have a sentencing policy in place for guidance of its Committees which are tasked with job of returning recommendations both, on the guilt and punishment to be accorded to a delinquent doctor. The sentencing guidelines should take into account the aggravating and mitigating circumstances, including but not limited to whether or not the delinquent doctor is a first time offender or a repeat offender. MCI, is directed to report on this aspect of the matter within the next three months.

29) Having said so, in my view, the best judges of the conduct of a professional are his peers. The only area available to a Court for interfering with the punishment accorded to a delinquent doctor by his peers is where the punishment given is grossly inadequate or grossly disproportionate. (See:- Ranjit Thakur Vs Union of India and Ors., (1987) 4 SCC 611. )

29.1) I am not able to persuade myself that Dr. Kakran's case falls within the aforementioned parameters. Besides this, a Single Judge of this Court has already dismissed the writ petition preferred by Dr. Kakran, albeit, without giving notice to Mr. Rai, qua which no appeal has been filed. Therefore, insofar as Dr. Kakran is concerned, in my view, nothing further needs to be done, as regards the punishment which has been accorded to him by MCI.

29.2) This, of course, will not prevent Mr. Rai from seeking recourse to other remedies that may be available to him in law qua Dr. Maichand and Dr. Kakran, including compensation for the injury caused to him.

30) In these circumstances, W.P. (C) No. 10506/2017, in which relief is sought against Dr. Kakran, is dismissed.

30.1) However, W.P. (C) No.10625/2017 is allowed, and the matter is remanded to the MCI on the issue of quantum of punishment. The MCI, will hear the matter afresh and while doing so, will give adequate opportunity to the parties concerned, including Mr. Rai and Dr. Maichand. The MCI, will complete this exercise at the earliest, though, not later than eight (8) weeks from the date of receipt of a copy of the order.

31) Furthermore, given the fact that Mr. Rai had to go surgery for his right foot at the Max Hospital, Shalimar Bagh, I am inclined to award cost of Rs.[1] lakh. The Cost will be borne by Dr. Maichand and will be paid within a period of two weeks from the date of receipt of a copy of the order.

32) List on 20.11.2018 for compliance by MCI, with respect to directions contained in Paragraph 28 above.

RAJIV SHAKDHER (JUDGE) AUGUST 20, 2018 A