IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE BETWEEN:
THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.52807/2013(S-DE) M/S SAGAR HOSPITAL, SHAVIGE MALLESHWARA HILLS, KUMARASWAMY LAYOUT, BANASHANKARI, BANGALORE-560078. REPRESENTED BY ITS MEDICAL DIRECTOR/ADMINISTRATOR ... PETITIONER (BY SRI Ms. DEEPIKA MAHESH, ADVOCATE FOR SRI H. SRINIVAS RAO, ADVOCATE) AND:
1. THE PRESIDENT, KARNATAKA MEDICAL COUNCIL, #70, 2ND FLOOR, “ VAIDYAKEEYA BHAVANA”
K.R. ROAD, (NEAR BASAWANAGUDI POST OFFICE), BASAVANAGUDI, BANGALORE-560004.
2. SRI D.R. JAGANNATH, MAJOR, No.41/4, 7TH CROSS, 10TH MAIN, GURURAJA LAYOUT, BANASHANKARI 3RD STAGE, BANGALORE-560085.
... RESPONDENTS (BY SRI VINAY D HOSMATH, ADVOCATE FOR R1; SRI MADHURANATH PADKI S., ADVOCATE FOR R2) …… THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 25.7.2013 VIDE ENQUIRY No.31 OF 2010 PASSED BY THE R1 VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner in the above writ petition has sought to set-aside the impugned Order dated 25.07.2013 vide Enquiry No.31 of 2010 passed by the respondent No.1-Karnataka Medical Council, vide Annexure-A.
2. It is the case of the petitioner that on 20.05.2009, Smt.Sunitha Jagannath, wife of Sri Jagannath, respondent No.2 herein visited the petitioner hospital and consulted Dr.Poonam Arya at Out Patient Department. She was referred by the Radiologist, M/s Sagar Clinic. On examination by the concerned treating Doctor, Dr.Poonam Arya, the patient was found to be in shock with an unrecordable pulse and blood pressure. Immediately, she was admitted to ICU and resuscitated.
3. The plain film of erect abdomen x-ray done at M/s Sagar Clinic showed air under the diaphragm suggestive of hollow viscus perforation which necessitated surgical intervention. The options of laproscopy and laporotomy and outcomes including risks were discussed in detail by the attending surgeon i.e., Dr. Poonam Arya with the patient’s husband i.e., respondent No.2 and obtained consent for both laproscopy and laporotomy as is the norm for all laparoscopic procedures. After induction of anesthesia, laparoscopy was attempted. However, in view of technical issue of postero lateral position of the ulcer, it was decided to perform laparotomy expeditiously for better access and sealing of perforation. In the best interest of the patient, a midline laparotomy was done. It showed a cicatrized first part of the duodenum with peritoneal soiling. The perforation in the postero-lateral part of the bulb of the duodenum could be detected only after mobilizing the duodenum manually by dissection. The perforation was dealt with by closure with a patch of tissue as this is the standard attempted protocol well described in time tested and accepted standard medical textbooks. On the same day, Dr. Poonam Arya spoke to respondent No.2 and gave details of the findings and the reasons for conducting laprotomy instead of laproscopy. It was explained that it was done due to technical reasons and in the best interest of the patient.
4. It is contended that on 21.05.2009, the condition of the patient improved and she was shifted to ward on the second post-operative day. In the ward, her condition deteriorated. Clinical features and investigations suggested Septicemia and Encephalopathy. Hence, she was shifted back to the ICU. With substantive supportive care in the ICU and regular care by Neurologists, Nephrologists, Intensivists and Physicians and surgical overview by both the doctors, the patient improved over a week. She had a tracheostomy performed and with diligent care, she got out of pneumonia and encephalopathy. On 01.06.2009, she developed a duodenal blow out on post operation day 10. the clinical condition of the patent and the need for looking into this leak was explained in detail to the patient’s family. Necessary surgical procedure i.e., re-laparotomy was conducted.
5. It is further contended that after several months of maintaining the patient on jejunostomy feeds, the duodenal fistula persisted. After explaining the difficulty in correcting this and the risks involved, Dr. Lakshman took the help of Dr.D.S.Shekar, Plastic Surgeon and closed the lateral duodenal defect with a vascularised rectus abdominal flap. This was done after an extensive literature search and discussions with several surgeons. Even this attempt failed. She succumbed to sepsis, a few days after this attempt. Therefore, respondent No.2 filed a complaint before the jurisdictional police station on 07.09.2010 alleging negligence on the part of the treating doctors and deficiency of service by the petitioner. The jurisdictional police referred the case to the Karnataka Medical Council-respondent No.1 herein, to look into the matter and call for the response from the treating doctors and the petitioner. The case was registered as KMC/ENQ/ 31/2010, on 11.10.2010. The respondent No.1, on 18.10.2010, issued show cause notice to the petitioner under Section 16 of the Karnataka Medical Registration Act, 1961. On receipt of the notice, the petitioner, on 26.11.2010, appeared before the respondent Nod.1 and filed reply to the show cause notice and placed their evidence on record. Similarly, respondent No.2 also placed his evidence on record. On 22.11.2012, petitioner was cross-examined. By the order dated 25.07.2013, vide Annexure-A, the respondent No.1- Karnataka Medical Council, after hearing both sides, decided to administer ‘warning’ to Dr.Poonam Arya for professional incompetence, M/s Sagar Hospital (petitioner herein) for deficiency in service and Dr.Lakshman was exonerated. Aggrieved by the said Order, the present writ petition is filed.
6. The respondents have not filed objections.
7. Ms. Deepika Mahesh, learned counsel for Sri H. Srinivas Rao, learned counsel for the petitioner contended that the impugned Order passed by the first respondent warning for deficiency in service in respect of the petitioner is totally without jurisdiction. She contended that the conclusion drawn by the respondent No.1 that, ‘due to duodenal blow out, multiple surgeries came to be performed thereon, to correct the complications, failed and hence patient died’ is not correct. Being an expert body, respondent No.1-
Karnataka Medical Council has failed to appreciate the nature of complications that had arisen in the case of the wife of the respondent No.2 and also failed to recognize the incessant efforts taken by the treating doctors to appropriately handle all the complications over a period of four months. The Karnataka Medical Council had thus arrived at a prejudicial conclusion in the facts of the case which is absolutely contrary to medical and legal practices. She further contended that respondent No.1, failed to take into consideration the additional affidavit filed by Dr.Balachandra Keni, the then Medical Director, who has categorically submitted that the respondent No.2 failed to pay substantial amount of the hospital bill amounting to `7,96,654/- and requested to waive off the bills and the petitioner did not concede to the request. Thus, the respondent No.2, towards settlement of a portion of the bill, had issued a cheque for `2,00,000/-. There is no negligence on the part of the petitioner and petitioner has taken all possible to treat the patient. Therefore, sought to allow the writ petition.
8. Sri Vinay D. Hosmath, learned counsel for respondent No.1, on instructions, submits that, under the provisions of the Karnataka Medical Registration Act, 1961, the respondent No.1 has no authority to pass the impugned order to administer warning for deficiency of service by the petitioner-hospital. He also pointed out that the petitioner-hospital is before this Court for the relief sought for and petitioner cannot seek to quash the entire Order and should confine its prayer only insofar as warning to the petitioner hospital for deficiency of service only. The said fair submission is placed on record.
9. At this stage, Ms.Deepika Mahesh, learned counsel for the petitioner submits that the respondent No.2 has already filed a complaint before the State Commission in C.C.No.159/2011 and the same is pending. The said submission is placed on record.
10. Having heard the learned counsel for the parties, it is not in dispute that the wife of the respondent No.2 was admitted in the petitioner hospital for certain ailments and the petitioner conducted medical examination. Since the wife of the respondent No.2 died in the hospital, respondent No.2 lodged a complaint with the jurisdictional police alleging negligence on the part of the treating Doctor and deficiency of service on the part of the petitioner-hospital. On reference made by the jurisdictional police, the Karnataka Medical Council-respondent No.1 herein proceeded to hold enquiry and ultimately passed the impugned Order warning deficiency of service against the petitioner.
11. Section 15 of the Karnataka Medical Registration Act, 1961, envisages about the Removal of Medical Practitioner’s name from register for misconduct. But it does not depicts that Medical Council can take action on a private hospital. The amended provisions of Section 16 of the said Act does not confer power on Karnataka Medical Council to initiate action against the hospital, as it merely recognizes to take action based on written complaint.
12. As rightly submitted by the learned counsel for the respondent No.1 that under the provisions of the Act, respondent No.1 has no power to warn the petitioner- hospital for deficiency of service. It is also not in dispute that the respondent No.2 has already initiated proceedings against the petitioner before the State Consumer Forum for deficiency of service. In the absence of any provisions pointed out to take action against the petitioner hospital by the respondent No.1, the warning issued by the respondent No.1 against the petitioner for deficiency of service is without any basis. Therefore, the same cannot be sustained.
13. In view of the above, the writ petition is allowed in part. The impugned order dated 25.07.2013 passed by the respondent No.1 in No.KMC/ENQ/31/2010 insofar as administering the warning to the petitioner for deficiency of service is set-aside. The remaining part of the impugned Order is undisturbed. However, the impugned Order does not come in the way of the respondent No.2 to adjudicate the dispute before the State Commission and it shall proceed in accordance with law.
Sd/- JUDGE kcm