Supreme Court Annual Digest 2022- Medical Law And Medical Education

Admission and Fee Regulatory Committee (for Professional Courses offered in Private Un­Aided Professional Institutions) Rules, 2006 (Andhra Pradesh); Rule 4 - The education is not the business to earn profit. The tuition fee shall always be affordable. Determination of fee/review of fee shall be within the parameters of the fixation rules and shall have direct nexus on the factors mentioned in Rule 4 of the Rules, 2006, namely, (a) the location of the professional institution; (b) the nature of the professional course; (c) the cost of available infrastructure; (d) the expenditure on administration and maintenance; (e) a reasonable surplus required for growth and development of the professional Institution; (f) the revenue foregone on account of waiver of fee, if any, in respect of students belonging to the reserved category and other Economically Weaker Sections of the society. All the aforesaid factors are required to be considered by the AFRC while determining/reviewing the tuition fees. (Para 5) Narayana Medical College v. State of Andhra Pradesh, 2022 LiveLaw (SC) 929 : AIR 2022 SC 5686

Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 (Andhra Pradesh) - Admission and Fee Regulatory Committee (for Professional Courses offered in Private Un­Aided Professional Institutions) Rules, 2006 (Andhra Pradesh); Rule 4 - Government order issued by State of Andhra Pradesh that enhanced the tuition fee of Private Medical Colleges by seven times, to Rs. 24 lakhs per annum - State Governnment could not have enhanced the fee during the review pending with the AFRC. To enhance the fee unilaterally would be contrary to the objects and purpose of the 1983 Act as well as the 2006 Rules, 2006 and the decision in P.A. Inamdar and Ors. Vs. State of Maharashtra and Ors.; (2005) 6 SCC 537. (Para 3.1, 5) Narayana Medical College v. State of Andhra Pradesh, 2022 LiveLaw (SC) 929 : AIR 2022 SC 5686

Examination of person accused of rape by medical practitioner

Code of Criminal Procedure, 1973; Section 53A - In cases where the victim of rape is alive and is in a position to testify in court, it may be possible for the prosecution to take a chance by not medically examining the accused. But in cases where the victim is dead and the offence is sought to be established only by circumstantial evidence, medical evidence assumes great importance. The failure of the prosecution to produce such evidence, despite there being no obstacle from the accused or anyone, will certainly create a gaping hole in the case of the prosecution and give rise to a serious doubt on the case of the prosecution. (Para 80) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804 : AIR 2022 SC 4688

Code of Criminal Procedure, 1973; Section 53A - The lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder - Even if such a flaw had occurred in the investigation in a given case, the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution. (Para 28) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480 : AIR 2022 SC 2396 : (2022) 8 SCC 668

Code of Criminal Procedure, 1973; Section 53A, 164A - While Section 53A enables the medical examination of the person accused of rape, Section 164A enables medical examination of the victim of rape. Both these provisions are somewhat similar and can be said approximately to be a mirror image of each other. But there are three distinguishing features - discussed. (Para 79) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804 : AIR 2022 SC 4688

Criminal Trial - Medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged - It is not merely a check upon testimony of eyewitnesses, it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. (Para 18) Anuj Singh @ Ramanuj Singh @ Seth Singh v. State of Bihar, 2022 LiveLaw (SC) 402 : AIR 2022 SC 2817

Fake Pharmacists

Fake Pharmacists - PIL before Patna HC restored - The manner in which the High Court has disposed of the PIL ventilating the very serious grievances touching the health and life of the citizen is disapproved - High Court to call for detailed report/counter from the State of Bihar and Bihar State Pharmacy Council on (i) how many Governments' hospitals/hospitals/medical stores/private hospitals are being run either by fake pharmacist or without registered pharmacist; (ii) whether any action is taken by the State Government on the fact-finding committee report submitted by the Bihar State Pharmacy Council which was reported to be forwarded to the State Government; (iii) whether there are any fake pharmacists as alleged in the writ petition; (iv) any action is taken by the State Government or by the Bihar State Pharmacy Council against such fake pharmacist; (v) whether the Pharmacy Practice Regulations, 2015 are being followed in the entire State of Bihar or not. Mukesh Kumar v. State of Bihar, 2022 LiveLaw (SC) 995

Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002

Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - Pharmaceutical companies' gifting freebies to doctors, etc. is clearly "prohibited by law", and not allowed to be claimed as a deduction under Section 37(1) - When acceptance of freebies is punishable by the MCI, pharmaceutical companies cannot be granted the tax benefit for providing such freebies, and thereby (actively and with full knowledge) enabling the commission of the act which attracts such opprobrium. (Para 33, 22) Apex Laboratories Pvt. Ltd. v. Deputy Commissioner, 2022 LiveLaw (SC) 195 : 2022 (4) SCALE 26

Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - Denial of the tax benefit cannot be construed as penalizing the assessee pharmaceutical company. Only its participation in what is plainly an action prohibited by law, precludes the assessee from claiming it as a deductible expenditure. (Para 27) Apex Laboratories Pvt. Ltd. v. Deputy Commissioner, 2022 LiveLaw (SC) 195 : 2022 (4) SCALE 26

Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - Regulation 6.8 - Acceptance of freebies given by pharmaceutical companies is clearly an offence on part of the medical practitioner, punishable with varying consequences. (Para 18) Apex Laboratories Pvt. Ltd. v. Deputy Commissioner, 2022 LiveLaw (SC) 195 : (2022) 7 SCC 98

Medical Course

Medical Course - Eligibility Requirement for Taking Admission in an Undergraduate Medical Course in a Foreign Medical Institution Regulations, 2002 - National Medical Commission is not bound to grant provisional registration to the student who has not completed the entire duration of the course from the Foreign Institute including the clinical training. (Para 15) National Medical Commission v. Pooja Thandu Naresh, 2022 LiveLaw (SC) 426 : AIR 2022 SC 2956

Medical Course - Screening Test Regulations, 2002 - Granting provisional registration to complete internship to a student who has not undergone clinical training would be compromising with the health of the citizens of any country and the health infrastructure at large - The decision of the National Medical Commission not to grant provisional registration cannot be said to be arbitrary - Qualifying in the Screening Regulations is no proof of the clinical experience, if any, gained by the students. (Para 16-21) National Medical Commission v. Pooja Thandu Naresh, 2022 LiveLaw (SC) 426 : AIR 2022 SC 2956

Medical Negligence

Medical Negligence - A medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another - He/she would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field - Merely because he/she could not save the patient, that could not be considered to be a case of medical negligence. (Para 21-27) Dr. Chanda Rani Akhouri v. Dr. M.A. Methusethupathi, 2022 LiveLaw (SC) 391 : 2022 (6) SCALE 546

Medical Negligence - Appeal against NCDRC which dismissed appellant's complaint of medical negligence - Dismissed - Commission has not committed any manifest error in arriving to a conclusion that in post operative medical negligence or follow up care, there was no negligence being committed by the respondents which may be a foundation for entertaining the complaint filed by the appellants. Dr. Chanda Rani Akhouri v. Dr. M.A. Methusethupathi, 2022 LiveLaw (SC) 391 : 2022 (6) SCALE 546

Medical Negligence - The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. Civil Hospital v. Manjit Singh, 2022 LiveLaw (SC) 781

Medical Negligence - Every death in an institutionalized environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care - It would not be possible for the Court to second-guess the medical judgment of the doctors on the line of medical treatment. Devarakonda Surya Sesha Mani v. Care Hospital, Institute of Medical Sciences, 2022 LiveLaw (SC) 753

Medical Negligence - In the proceedings for damages due to professional negligence, the question of intention does not arise. (Para 29) Harnek Singh v. Gurmit Singh, 2022 LiveLaw (SC) 511 : AIR 2022 SC 2643 : (2022) 7 SCC 685

Medical Negligence - Opinion and findings of the MCI regarding the professional conduct of a doctor have great relevance while considering claim for compensation on the basis of medical negligence. (Para 35) Harnek Singh v. Gurmit Singh, 2022 LiveLaw (SC) 511 : AIR 2022 SC 2643 : (2022) 7 SCC 685

Medical Termination of Pregnancy Act, 1971

Medical Termination of Pregnancy Act, 1971 - All women are entitled to safe and legal abortions (Para 56) - There is no rationale in excluding unmarried women from the ambit of Rule 3B of MTP Rules which mentions the categories of women who can seek abortion of pregnancy in the term 20-24 weeks. (Para 121) X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809 : AIR 2022 SC 4917

Medical Termination of Pregnancy Act, 1971 - Effect of 2021 amendment - Parliamentary intent to cover unmarried woman too-After 2021 amendment, the word "married woman" has been substituted with "any woman" and "husband" with "partner"-The Parliamentary intent, therefore, is clearly not to confine the beneficial provisions of the MTP Act only to a situation involving a matrimonial relationship. [Para 16 & 18] X v. Principal Secretary, Health & Family Welfare Department, 2022 LiveLaw (SC) 621

Medical Termination of Pregnancy Act, 1971 - Gap in the law exists between MTP Act and MTP Rules -Evidently, there is a gap in the law : while Section 3 travels beyond conventional relationships based on marriage, Rule 3B of the MTP Rules does not envisage a situation involving unmarried women, but recognizes other categories of women such as divorcees, widows, minors, disabled and mentally ill women and survivors of sexual assault or rape. [Para 18] X v. Principal Secretary, Health & Family Welfare Department, 2022 LiveLaw (SC) 621

Medical Termination of Pregnancy Act, 1971 - Supreme Court passes ad-interim order allowing unmarried woman to terminate pregnancy of 24-week term arising out of a consensual relationship - Prima facie observes the case is covered under Section 3(2)(b). X v. Principal Secretary, Health & Family Welfare Department, 2022 LiveLaw (SC) 621

Medical Termination of Pregnancy Act, 1971 - There is no basis to deny unmarried women the right to medically terminate the pregnancy, when the same choice is available to other categories of women -Denying an unmarried woman the right to a safe abortion violates her personal autonomy and freedom-The distinction between a married and unmarried woman does not bear a nexus to the basic purpose and object which is sought to be achieved by Parliament which is conveyed specifically by the provisions of Explanation 1 to Section 3 of the Act. [Para 18, 20, 21] X v. Principal Secretary, Health & Family Welfare Department, 2022 LiveLaw (SC) 621

Medical Termination of Pregnancy Act, 1971; Section 3(2)(b) - Termination of a pregnancy till twenty-four weeks of women if it causes risk of injury to the mental health – unwanted pregnancy can be construed as injury to mental health. (Para 62, 63, 64) X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809 : AIR 2022 SC 4917

Medical Termination of Pregnancy Rules, 2003 - Rule 3B (categories of women who can seek abortion of pregnancy of 20-24 weeks) - A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 140 - Purposive interpretation given to Rule 3B to include unmarried women whose pregnancy arise out of consensual relationship. (Para 121) X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809 : AIR 2022 SC 4917

Medical Termination of Pregnancy Rules, 2003

Medical Termination of Pregnancy Rules, 2003; Rule 3B(b) - Rule 3B(b) includes minors within the category of women who may terminate their pregnancy up to twenty-four weeks – the RMP need not disclose the identity and other personal details of the minor in the information provided under Section 19(1) of the POCSO Act. (Para 81) X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809 : AIR 2022 SC 4917

Medical Termination of Pregnancy Rules, 2003; Rule 3B(c) - Women going through a change of marital status during the ongoing pregnancy shall be considered eligible for termination of pregnancy – distinction between married and single women is not constitutionally sustainable – benefits in law extend equally to both single and married women. (Para 90, 92) X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809 : AIR 2022 SC 4917

Medical Witness

A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. (Para 29) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631 : AIR 2022 SC 5454

National Health Mission

National Health Mission - Ayurvedic doctors will be entitled to be treated at par with Allopathic Medical Officers and Dental Medical Officers under the National Rural Health Mission (NRHM/NHM) Scheme - Upheld Uttarakhand High Court judgment that under the NRHM/NHM Scheme, Ayurvedic Doctors will be entitled to parity in salary with Allopathic Medical Officers and Dental Medical Officers. State of Uttarakhand v. Sanjay Singh Chauhan, 2022 LiveLaw (SC) 320

National Medical Commission

National Medical Commission (Foreign Medical Graduate Licentiate) Regulations 2021; Regulations 4(a)(i), 4(a)(ii), 4(b) & 4(c) - National Medical Commission (Compulsory Rotating Medical Internship) Regulations, 2021; Schedule ­II 2(a) and 2(c)(i) - Constitutional validity upheld - NMC has the power to frame the Regulations - Regulations not arbitrary - Not necessary for the NMC and the Central Government to recognise foreign medical degrees of a lesser duration - The prescription of an internship for a minimum duration of 12 months in the same foreign medical institution cannot also be said to be a duplication of internships. Aravinth R.A. v. Secretary to Government of India, 2022 LiveLaw (SC) 473

NEET

NEET - Post Graduate Medical Courses - Admission - The schedule for admission to the post­graduate medical courses must be followed strictly leaving no discretion to any authority to permit admissions over the cut­off date under schedule for admission to post­graduate medical courses. (Para 20) Board of Governors of Medical Council of India v. Dr. Priyambada Sharma, 2022 LiveLaw (SC) 855

NEET - The validity of the OBC reservation in the AIQ seats in NEET-PG and NEET-UG is upheld - Operative directions issued - Counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the AIQ seats - The criteria for the determination of the EWS notified by OM 2019 shall be used for identifying the EWS category for candidates who appeared for the NEET-PG 2021 and NEET-UG 2021 examinations. (Para 6, 7) Neil Aurelio Nunes v. Union of India, 2022 LiveLaw (SC) 17 : (2022) 4 SCC 95

NEET Admissions - Court cannot issue a mandamus directing the respondent to conduct admissions through institutional preference. The decision of whether or not to provide institutional preference solely lies with the respondent-authority since it falls within the realm of policy. (Para 9) Hemant Kumar Verma v. Employee State Insurance Corporation, 2022 LiveLaw (SC) 641

NEET In-Service Quota - Junior Resident Doctors serving in Employee State Insurance Corporation (ESIC) run hospitals as part of their bond period cannot claim 50% in-service quota for Post Graduate courses at par with Insurance Medical Officers-There is a clear distinction in law between junior resident doctors and regularly recruited ESIC doctors. The in-service quota is, therefore, justifiably made available to the latter category. The petitioners cannot claim parity with regularly recruited insurance medical officers in seeking the benefit of the in-service quota. (Para 10) Hemant Kumar Verma v. Employee State Insurance Corporation, 2022 LiveLaw (SC) 641

NEET-PG - Plea to postpone NEET-PG 2022 scheduled for May 21 rejected - Postponement will create chaos and uncertainty and will impact patient care and will cause prejudice to over 2 lakh students who have prepared. Dr. R. Dinesh Kumar Reddy v. Medical Counselling Committee, 2022 LiveLaw (SC) 486 : AIR 2022 SC 2306

NEET-PG 2021 - The decision of the Union Government and the Medical Counselling Committee not to have Special Stray Round of counselling is in the interest of Medical Education and Public Health. There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health. (Para 10.4) Astha Goel v. Medical Counselling Committee, 2022 LiveLaw (SC) 548 : AIR 2022 SC 2766

Pharmacy Act, 1948

Pharmacy Act, 1948 - Pharmacy Practice Regulations, 2015 - It is the duty of Pharmacy Council and State Government to see that the hospitals/medical stores, etc., are not run by the fake pharmacist and are run by the registered pharmacist only - Running the hospitals/dispensaries in absence of any registered pharmacist and/or running such hospitals by fake pharmacist and even running the medical stores by fake pharmacist and without even any pharmacist will ultimately affect the health of the citizen. Mukesh Kumar v. State of Bihar, 2022 LiveLaw (SC) 995

Private Medical Colleges

Education - Private Medical Colleges - Capitation Fee - The management of private medical colleges are strictly prohibited from accepting payment of fees in cash, in order to avoid charging of capitation fee - Directions to curb capitation fee menace issued - A web-portal under the aegis of Supreme Court has to be set-up wherein any information about the private medical colleges charging capitation fees can be furnished by the students - While fixing fee, the Fee Fixation Committees of the States should take into account all the components of fee, leaving no scope for managements to charge any additional amounts apart from what has been prescribed by the fee fixation committee from time to time. (Para 13-15) Rashtreeya Sikshana Samithi Trust v. Committee for Fixation of Fee Structure Of Private Professional Colleges, 2022 LiveLaw (SC) 501 : AIR 2022 SC 2434

Reservation

Reservation - The reservation for OBC candidates in the AIQ seats for UG and PG medical and dental courses is constitutionally valid. (Para 59) Neil Aurelio Nunes v. Union of India, 2022 LiveLaw (SC) 73 : (2022) 4 SCC 1

Reservation - Vacating earlier interim order, the Court refused to stay the G.O. dated 07.11.2020 issued in the State of Tamil Nadu purporting to reserve 50% seats at the Super Specialty level in Government Medical Colleges to in-service doctors - Expressed a prima facie view that States are competent to provide such reservation. N. Karthikeyan v. State of Tamil Nadu, 2022 LiveLaw (SC) 294 : AIR 2022 SC 1543

Skull Superimposition Technique

Criminal Trial - Skull Superimposition Technique - Though identification of the deceased through superimposition is an acceptable piece of opinion evidence, however the courts generally do not rely upon opinion evidence as the sole incriminating circumstances, given its fallibility, and the superimposition technique cannot be regarded as infallible - When the super-imposition report is not supported by any other reliable medical evidence like a DNA report or post-mortem report, it would be very risky to convict the accused believing the identification of the dead body of the victim through the super-imposition test - When as per the case of prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else. (Para 13) S. Kaleeswaran v. State, 2022 LiveLaw (SC) 903 : AIR 2022 SC 5535