[Medical Negligence] Medical Experts Are Not Expected To Have Jurisprudential Expertise: Calcutta HC [Read Judgment]

"If the allegation was one of medical negligence, involving technical issues, undoubtedly the respondent no. 1‐council would be aided by the expertise of its members to deal with the same. However, the flimsy single ground on which the petitioner was removed from the Register does not require any medical expertise but requires jurisprudential expertise, which medical practitioners are not otherwise expected to have jurisprudential expertise," Justice Sabyasachi Bhattacharyya remarked.

The order was passed while setting aside an order of the Council whereby it had removed the Petitioner, Dr. Subhash Chandra Tiwari, from the Register of Registered Practitioners, in exercise of its powers under Section 25 of the Bengal Medical Act, 1914, for infamous conduct.

The cancellation of the Petitioner's registration was based on a finding that he had been working in the Department of Gastroenterology in spite of not holding any specialized qualification in this field of practice.

The court noted that the "hearing" which was given to the petitioner was on the charges originally formulated in the notice against him, which did not contain the ground on which he was ultimately punished.

The complaint against him was lodged for having prescribed the administration of a controversial drug, Exelyte, to a four months old infant, which led to his demise. Accordingly, the notice served to him was based on the averments made in the complaint and not on the ground on which he was ultimately expelled.

It is also noteworthy that the Petitioner had fully disclosed all his qualifications in his Curriculum Vitae and yet the hospital concerned deputed the petitioner at the Gastroenterology Department.

In these circumstances the court said,

"the "hearing" which was given to the petitioner was on the charges originally formulated in the notice against him, which did not contain the ground on which he was ultimately punished. Hence, the so‐called hearing given to the petitioner was mere lip‐service to the principle of audi alteram partem and no hearing worth the name was given at all on the ground for which the writ petitioner was ultimately punished…That apart, the said ground was not even in the control of the petitioner or the act of the petitioner at all, let alone an infamous conduct in his professional field."

Reliance was placed on Union of India & Ors. v. Gyan Chand Chattar, (2009) 12 SCC 78, for the proposition that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. "The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively."

With regards the charge of "infamous conduct", the court noted that it was a charge much graver than medical negligence. Accordingly, it said,

""infamous", even as per the dictionary meaning, like its counterpart "famous", cannot refer to a single deed, unless it is so abominable and disgraceful that it would bring the entire medical community to disrepute. "Infamy", by its very definition, has to be over a period of time to make a person well‐known for some bad quality or deed…The allegation leveled in the notice to the petitioner pertained at best to alleged medical negligence and could not be elevated to the plane of infamy…respondent no. 1 had no jurisdiction at the outset, to exercise its power under Section 25(a)(ii) of the 1914 Act."

Reliance was placed on Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors., (2010) 3 SCC 480,wherein it was held,

"a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. It was further held that it was our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension."

In this light the court set aside the impugned order passed by the medical council with the following remarks,

"[Respondent's] actions virtually defy all logic and seems a merely impromptu reaction on the part of the respondent no.1 to find out a scapegoat in the writ petitioner to absolve themselves of liability on the face of public uproar in respect of medical negligence which, in general, is at present afflicting the State of West Bengal."

Arguments for the Petitioner were advanced by Advocates Pratik Dhar, Sailesh Mishra and Samir Halder, for the State by Advocates Jishnu Chowdhury and Robiul Islam and for the WBMC by Advocates Saibalendu Bhowmick, Biplab Guha and Rajsekhar Basu.

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