Cause of action in cases of medical negligence: Supreme Court examines

Called upon to examine the validity of the order of the National Consumer Disputes Redressal Commission which held that the consumer complaint filed by a Nurse alleging medical negligence on part of a doctor who had operated on her was in time, the Supreme Court in a recently reported decision [Dr. V.N. Shrikhande v. Mrs. Anita Sena Fernandes, AIR 2011 SC 212] took note of the Discovery Rule, as applicable in the United States, to hold that the cause of action in cases of medical negligence would arise when the patient first discovered the alleged negligence.

Holding that the complainant being an experienced Nurse and employed in the Government Hospital, "it was reasonably expected of her to have contacted" the doctor who performed the surgery on her. However her omission to do so and file a complaint after a significant lapse of time, was what factored in the judgment of the Court to hold the complaint being barred by time. In arriving at this conclusion, the Court examined the comparable position in other jurisdictions to declare the law applicable in India in the following terms;

18. In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor’s part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative-complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence. 

19. The Discovery Rule to which reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation. In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patient’s body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patient’s body was discovered. In West Virginia, the Discovery Rule was applied in Morgan v. Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156. In that case a piece of sponge had been left in the wound during a surgical operation but its presence in the body did not come to light until 10 years later. The Court rejected the objection of limitation and observed:

“It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the hysterectomy.”

Again, the Court observed: 

“We believe that the ‘discovery rule’ as stated and applied in cases cited above represents a distinct and marked trend in recent decisions of appellate courts throughout the nation.”

In Idaho, the Discovery Rule was invoked in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224. The facts of that case were that the plaintiff underwent a surgical operation in 1946. A sponge was left in the wound when the incision was closed. The same was discovered in the patient’s body in 1961. During the intervening period the patient sustained considerable suffering, during which she consulted various physicians. After reviewing numerous authorities at great length, the Court cast aside the earlier doctrine, adopted the Discovery Rule and observed:

“In reality, the ‘general rule’ has little to recommend it. It is neither the position of a majority of the jurisdictions nor is it firmly based on considerations of reason or justice. We will, therefore, adhere to the following rule: where a foreign object is negligently left in a patient’s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.”

The facts in Quinton v. United States, 304 F.2d 234 were that the wife of the plaintiff was given blood transfusion in a Government hospital in 1956. In June, 1959, the plaintiff and his wife during the latter’s pregnancy discovered that wrong type of blood was given to her in 1956 and as a result she gave birth to a stillborn child. The Government sought dismissal of the action for damages on the ground of limitation. The Court of Appeals opined that when a claim accrues under the Federal Tort Claims Act, it is governed by Federal law and not by local State law. The Court then held that the period of limitation does not begin to run until the claimant discovers, or in the exercise of reasonable diligence should have discovered the act constituting the alleged negligence.

In Josephine Flanagan v. Mount Eden General Hospital LEXSEE 24 N.Y. 2d 427, the application of the rule of Discovery was considered in the background of fact that during the course of operation done on 14.7.1958, surgical clamps were inserted in the plaintiff’s body. In 1966, the plaintiff consulted a doctor because she experienced severe pain in the region of her abdomen. The doctor told her that surgical clamps were discovered by Xray analysis. Thereafter, another operation was performed to remove the clamps. The defendants sought dismissal of the complaint on the ground that the same was barred by time. The Court referred to the Discovery Rule and observed:

“The so-called discovery rule employed in foreign object medical malpractice cases is in compatible harmony with the purpose for which Statutes of Limitation were enacted and strikes a fair balance in the field of medical malpractice. The unsoundness of the traditional rule, as applied in the case where an object is discovered in the plaintiff’s body, is patent. “It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the operation.” 

In the case before us, the danger of belated, false or frivolous claims is eliminated. In addition, plaintiff’s claim does not raise questions as to credibility nor does it rest on professional diagnostic judgment or discretion. It rests solely on the presence of a foreign object within her abdomen. The policy of insulating defendants from the burden of defending stale claims brought by a party who, with reasonable diligence, could have instituted the action more expeditiously is not a convincing justification for the harsh consequences resulting from applying the same concept of accrual in foreign object cases as is applied in medical treatment cases. A clamp, though immersed within the patient’s body and undiscovered for a long period of time, retains its identity so that a defendant’s ability to defend a “stale” claim is not unduly impaired.

Therefore, where a foreign object has negligently been left in the patient’s body, the Statute of Limitations will not begin to run until the patient could have reasonably discovered the malpractice.” 

The proposition laid down in Flaganan’s case was reiterated in John D. Adams and Jeanette S. Adams v. New Rochelle Hospital Medical Center, 919 F.Supp.711.

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Insanity under Criminal Law: The law revisited

We had earlier written about the position of a schizophrenic patient in as far as his liability under criminal law of India was concerned. The Supreme Court in a recently delivered decision in Sudhakaran v. State of Kerala has explained the law of insanity under criminal law in India. 

The Court explained the law in the following terms;

17. The defence of insanity has been well known in the English Legal System for many centuries. In the earlier times, it was usually advanced as a justification for seeking pardon. Over a period of time, it was used as a complete defence to criminal liability in offences involving mens rea. It is also accepted that insanity in medical terms is distinguishable from legal insanity. In most cases, in India, the defence of insanity seems to be pleaded where the offender is said to be suffering from the disease of Schizophrenia. The plea taken in the present case was also that the appellant was suffering from “paranoid schizophrenia”. The term has been defined in Modi’s Medical Jurisprudence and Toxicology as follows:

“Paranoia is now regarded as a mild form of paranoid schizophrenia. It occurs more in males than in females. The main characteristic of this illness is a well-elaborated delusional system in a personality that is otherwise well preserved. The delusions are of persecutory type. The true nature of this illness may go unrecognized for a long time because the personality is well preserved, and some of these paranoiacs may pass off as a social reformers or founders of queer pseudoreligious sects. The classical picture is rare and generally takes a chronic course. Paranoid Schizophrenia, in the vast majority of case, starts in the fourth decade and develops insidiously. Suspiciousness is the characteristic symptom of the early stage. Ideas of reference occur, which gradually develop into delusions of persecution. Auditory hallucinations follow which in the beginning, start as sound or noises in the ears, but later change into abuses or insults. Delusions are at first indefinite, but gradually they become fixed and definite, to lead the patient to believe that he is persecuted by some unknown person or  [23rd Ed. Page 1077] some superhuman agency. He believes that his food is being poisoned, some noxious gases are blown into his room and people are plotting against him to ruin him. Disturbances of general sensation give rise to hallucinations which are attributed to the effects of hypnotism, electricity, wireless telegraphy or atomic agencies. The patient gets very irritated and excited owing to these painful and disagreeable hallucinations and delusions.”

The medical profession would undoubtedly treat the appellant herein as a mentally sick person. However, for the purposes of claiming the benefit of the defence of insanity in law, the appellant would have to prove that his cognitive faculties were so impaired, at the time when the crime was committed, as not to know the nature of the act. Section 84 of the Indian Penal Code recognizes the defence of insanity. It is defined as under:-

“Nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” 

A bare perusal of the aforesaid section would show that in order to succeed, the appellant would have to prove that by reason of unsoundness of mind, he was incapable of knowing the nature of the act committed by him. In the alternate case, he would have to prove that he was incapable of knowing that he was doing what is either wrong or contrary to law. The aforesaid section clearly gives statutory recognition to the defence of insanity as developed by the Common Law of England in a decision of the House of Lords rendered in the case of R. Vs. Daniel Mc Naughten. In that case, the House of Lords formulated the famous Mc Naughten Rules on the basis of the five questions, which had been referred to them with regard to the defence of insanity. The reference came to be made in a case where Mc Naughten was charged with the murder by shooting of Edward Drummond, who was the Pvt. Secretary of the then Prime Minister of England Sir Robert Peel. The accused Mc Naughten produced medical evidence to prove that, he was not, at the time of committing the act, in a sound state of mind. He claimed that he was suffering from an 2 [1843 RR 59: 8ER 718(HL)] insane delusion that the Prime Minister was the only reason for all his problems. He had also claimed that as a result of the insane delusion, he mistook Drummond for the Prime Minister and committed his murder by shooting him. The plea of insanity was accepted and Mc Naughten was found not guilty, on the ground of insanity. The aforesaid verdict became the subject of debate in the House of Lords. Therefore, it was determined to take the opinion of all the judges on the law governing such cases. Five questions were subsequently put to the Law Lords. The questions as well as the answers delivered by Lord Chief Justice Tindal were as under:-

“Q.1 What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing a revenging some supposed grievance or injury, or of producing some public benefit?

Answer: “Assuming that your lordships’ inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion, that, notwithstanding the party did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable, according to the nature of the crime committed, if he knew, at the time of committing such crime, that he was acting contrary to law, by which expression we understand your lordships to mean the law of the land.

Q.2. What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?

Q.3. In what terms ought the question to be left to the jury as to the prisoner’s state of mind at the time when the act was committed?

Answers – to the second and third questions That the jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that, to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong, which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally, and in the abstract, as when put as to the party’s knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that every one must be taken conclusively to know it without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course, we think, is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.

Q.4. If a person under an insane delusion as to the existing facts commits and offence in consequence thereof, is he thereby excused?

Answer: The answer must, of course, depend on the nature of the delusion, but making the same assumpt ion as we did before, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if, under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes in selfdefence, he would be exempted from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.

Q.5. Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner’s mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious, at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time? 

Answer: We think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.” 

A comparison of answers to question no. 2 and 3 and the provision contained in Section 84 of the IPC would clearly indicate that the Section is modeled on the aforesaid answers.

18. This Court has on several occasions examined the standard of proof that is required to be discharged by the appellant to get the benefit of Section 84 IPC. We may make a reference here to the observation made in Dahyabhai Chhaganbhai Thakkar Vs. State of 3 [Archbold 2010 Ed. Pg. No. 1880-1881] Gujarat. The relevant aspects of the law and the material provisions relating to the plea of insanity were noticed and considered as follows:-

xxx

It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of “shall presume” in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, by placing material before the court sufficient to make it consider the existence of the said circumstances so probable that a prudent man  would act upon them. The accused has to satisfy the standard of a “prudent man”. If the material placed before the court such, as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of “prudent man”, the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.”

Thereafter, upon further consideration, this Court defined the doctrine of burden of proof in the context of the plea of insanity in the following propositions:-

“(1) The prosecution must prove beyond reasonable doubt that the appellant had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. 

(2) There is a rebuttable presumption that the appellant was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the appellant may rebut it by placing before the court all the relevant evidence – oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings.

(3) Even if the appellant was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the appellant or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the appellant and in that case the court would be entitled to acquit the appellant on the ground that the general burden of proof resting on the prosecution was not discharged.” 

19. It is also a settled proposition of law that the crucial point of time for ascertaining the existence of circumstances bringing the case within the purview of Section 84 is the time when the offence is committed. We may notice here the observations made by this Court in the case of Ratan Lal Vs. State of Madhya Pradesh. In Paragraph 2 of the aforesaid judgment, it is held as follows:-

“It is now well-settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the appellant.” 5 [1970 (3) SCC 533]

20. The High Court on examination of the evidence before it, came to the conclusion that the appellant had failed to prove that he was suffering from such mental illness that would enable him to take benefit of Section 84 IPC.

21. The High Court took into consideration the totality of the circumstances and came to the conclusion that there was no evidence indicating that appellant was suffering from mental illness at the crucial time. The only evidence placed on record shows that the appellant had been treated in a Psychiatric Hospital for 13 days in the year 1985 even at that time the doctor had diagnosed the disease as psychotic disorder. The record did not indicate that the patient was suffering from such mental disability which incapacitated him to know the nature of the act that he had committed. The High Court further observed that there was no evidence to indicate that the appellant suffered from mental illness post 1985. The High Court, in our opinion, rightly concluded that the appellant was capable of knowing the nature of the act and the consequences thereof on the date of the alleged incident.

Whilst he had brutally and callously committed the murder of his wife, he did not cause any hurt or discomfort to the child. Rather he made up his mind to insure that the child be put into proper care and custody after the murder. The conduct of the appellant before and after the incident was sufficient to negate any notion that he was mentally insane, so as not to be possessed of the necessary mens rea, for committing the murder of his wife.

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See Also

1. Unsoundness of mind and criminal liability: Supreme Court explains

Hospitals not liable for medical negligence: High Court

Holding that criminal prosecution in a case relating to medical negligence required a specific intention to commit a punishable offenses and hospitals being juristic entities incapable of being attributed such intention, no offense of medical negligence could be attributed upon the hospital and if at all only doctors personally could be held liable for an offense, the Delhi High Court in a recent decision dismissed a criminal complaint filed against Apollo Hospital.

The Bench in [INDRAPRASTHA MEDICAL CORP. LTD. v. STATE NCT OF DELHI] inter alia observed as under;

4. In Standard Chartered Bank Vs. Directorate of Enforcement, 2005 SCC (Cri.) 961, SC made following observations regarding criminal liability of the Corporation:

“6. There is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the effect that corporations cannot commit a crime, the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents.

X X X 

8. Inasmuch as all criminal and quasi-criminal offences are creatures of statute, the amenability of the corporation to prosecution necessarily depends upon the terminology employed in the statute. In the case of strict liability, the terminology employed by the legislature is such as to reveal an intent that guilt shall not be predicated upon the automatic breach of the statute but on the establishment of the actus reus, subject to the defence of due diligence. The law is primarily based on the terms of the statutes. In the case of absolute liability where the legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutory prohibition, no particular state of mind is a prerequisite to guilt. Corporations and individual persons stand on the same footing in the face of such a statutory offence. It is a case of automatic primary responsibility. It is only in a case requiring mens rea, a question arises whether a corporation could be attributed with requisite mens rea to prove the guilt. But as we are not concerned with this question in these proceedings, we do not express any opinion on that issue.” In Kalpnath Rai Vs. State, 1998 AIR (SC) 201, SC made following observations:

“The company is not a natural person. We are aware that in many recent penal statutes, companies or corporations are deemed to be offenders on the strength of the acts committed by persons responsible for the management of affairs of such company or corporations e.g. Essential Commodities Act, Prevention of Food Adulteration Act etc. But there is no such provision in TADA which makes the company liable for the acts of its officers. Hence, there is no scope whatsoever to prosecute a company for the offence under Section 3(4) of TADA. The corollary is that the conviction passed against A-12 is liable to be set aside.” In Standard Chartered Bank Vs. Vinay Kumar Sood & Ors, 2009 (1) JCC 756, this court had observed as under:

“Undisputedly, the petitioner is a bank incorporated in England with limited liability by Royal Charter, 1853 and, therefore, is a corporation/company. A company cannot be in any case held to have committed an offence under Section 500 IPC because; most essential ingredient of the said offence i.e. ‘mens rea’ would be missing as a company is a juristic entity or an artificial person, whereas a Director is not a company. The company may be made liable for offences, however, if there is anything in the definition or context of a particular Section or a particular statute which would prevent the application of the said section to a limited company, the limited company cannot be proceeded against. There are number of provisions of law in which it would be physically impossible by a limited company to commit the offence. A limited company, therefore, cannot generally be tried for offences where mens rea is essential. Similarly, a company cannot face the punishment of imprisonment for obvious reasons that company cannot be sent to prison by way of a sentence.”

5. The offence of criminal negligence requires a specific state of mind in respect of the person committing the offence. The offence of medical criminal negligence cannot be fastened on the company since the company can neither treat nor operate a patient of its own. It is the Doctor working in the company who treats & performs operations. It is the Doctor who examines the patients and prescribes medicines. If there is a deliberate or negligent act of the Doctor working in the Corporation/Hospital, it is the liability of the Doctor and not of the Corporation for criminal negligence despite the fact that due to the act of the Doctor of treating patients the Corporation was getting some revenue. These days, all Doctors with big hospitals, are on panels where they have fixed fee for examination of patients and for conducting operations. Out of this fee, a percentage is paid to the hospital. The hospital/company cannot be held liable for the personal negligence of the Doctor in giving wrong treatment. However, if there is an administrative negligence, or a negligence of not providing basic infrastructure, which results into some harm to an aggrieved person or such negligence which is impersonal, the hospital can be held liable. But, in the case of medical negligence, which is personal to the Doctor who gave treatment, the Corporation would not be liable and it is the Doctor who can be indicted for medial criminal negligence.

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Doctors cannot practice at residence: High Court

Being of the view that the advanced machines employed in medicine today are too much of a nuisance to the common folk and also that the garbage emanating from medical treatment is injurious if disposed generally, the Allahabad High Court in a recent decision has upheld the local body notification directing the doctors to stop particising in residential colonies even if they own the houses. The High Court thus directing seizure of activities involving various machinery by the doctors in residential complexes while allowing consultancy activities only in such premises.

The High Court inter alia observed as under;

 12. All the petitioners are qualified and registered medical practitioners. They have a right to run their private medical clinics for giving professional advice to the patients. A doctor's clinic run in a portion of the residential house, which may either be small and sufficiently big but which may not occupy the entire area with a waiting hall, a dispensary or even a small diagnostic facility may not convert the user of a premise from a residential user to commercial user. A non-nuisance professional activity running by doctors, lawyers, consultant, architect, chartered accountant, property consultants, government guides may also fall in the same category. The trouble starts when the doctor or any other consultants uses a substantial part of the building, for the activity including the incidental activities such as x-ray, ultrasonography, pathology, operation theatre and wards in which patients are admitted. These activities together with the consultancy, overreaches the limit of the user for professional use.

12. The counsels for the State and UP Awas Evam Vikas Parishad have not placed before us any bye laws or regulations made by UP Awas Evam Vikas Parishad, which may prohibit such activities. The condition of allotment/hire purchase/purchase, however, clearly provides that the dominant user of the building/plot on which the constructions are raised should be residential and that allottee/purchaser should not use the premises for business or commerce.

13. In the present case, we find that all the petitioners are using the residential houses for the purposes of running their clinics and have also converted the use of the dominant portion of the building for providing activities such as x-ray, ultrasonography, pathology, operation theatre, private wards and general wards. Some of these wards are so small, that they may hardly accommodate one bed in the room. The argument advanced by Shri Arvind Srivastava, that such user is incidental to medical practice, cannot be accepted. No reasonable person in such case can say that the user of the building has not been changed from residential to commercial.

14. In these writ petitions all the doctors have extended their consultancy to include the diagnostic techniques as well as admitting patients in the rooms and halls converted as wards. The professional activity in also these cases has converted the user of the house from residential to commercial for which all the doctors have therefor applied for and have electric connections for commercial purposes.

15. The rights given to carry on profession, including medical profession under Article 19 (1) (g) of the Constitution of India, are subject to reasonable restrictions in public interest. Such restrictions can be placed by the law made by the State under Article 19 (6) or may be imposed under an agreement to which the person may subscribe, in the interest of other residents. We do not find that a notice for cancellation of registration is a restriction on the right of a person to practice profession. The UP Awas Evam Vikas Parishad and Chief Medical Officer have not passed any such orders directing the petitioners to stop medical practice. They have only cautioned them to stop using the premises for commercial purposes. If they want to continue to use the diagnostic techniques and surgeries and admit patients, they should shift the place of their business to some other place, where such activity is permitted. The user of the premises by the professionals for a purpose other than the purpose for which it was allotted or purchased by him is not a restriction on the right to carry on the profession.

16. The medical professionals running nursing homes are also required to obtain registration for running ultrasound machines, permission from the Atomic Energy Commission for the use of x-ray plant and to dispose of the medical waste after obtaining registration and the facilities provided under the Bio Medical Waste Management Rules. There is nothing on record to show that the petitioners have obtained these permissions and licenses. 

17. The restrictions placed by the UP Awas Evam Vikas Parishad for using a residential accommodation allotted/purchased for any purpose other than residential purposes is also for maintaining a peaceful environment for other residents in the residential colonies. Any business or commercial activity involves these houses to be visited by patients and their relatives, use of motor vehicles, parking, and putting pressure of the civic amenities such as electricity, water, sewer and roads. It also affects the tranquility of the residential area used by the senior citizen and the children. The change of the dominant user of the building in a residential colony not only affects the immediate neighbors but all the residents of the colony and thus it is essential that in the residential colonies, the constructions should be used dominantly for residential purposes.

18. We do not find that the petitioners have been asked to stop their medical practice or to stop the patients visiting in their clinics. They have been simply asked to stop the use of diagnostic techniques including x-ray, ultrasonography, pathology, running of operation theatre, maternity centres and for using their houses for admitting patients. Such an activity is violative of the terms and conditions of purchase and constructions of the houses and the land use, and can be regulated by the UP Awas Evam Vikas Parishad both by giving notice of cancellation of the allotment or by taking steps to cancel the registration under which such activity is being carried out. The Chief Medical Officer, Etawah has registered the petitioners as medical practitioners, under a declaration given by them to run the consultancy clinics the petitioners. The petitioners are obliged to abide by their declarations.

19. Inspite of the repeated reminders given by the Court, the State Government has not made any law regulating the medical practice including the running of private nursing homes/diagnostic clinics and hospital. In the absence of any law covering the field the Court has to apply the test of reasonableness which may protect both the residents of the colony as well as patients visiting the doctors. It is inhuman for the patients to be given professional service in such small residential buildings. The size of the rooms of operation theatre, private wards and general wards would show that the doctors in order to earn money have converted small houses into nursing homes packing up the patients in unhygienic cubicles. A room measuring 9.5x9.5' can hardly be used as a hygienic private ward, and in any case a room measuring 15.1'x19' cannot be used as a general ward. The petitioners are apparently using the residential accommodation for running nursing homes putting their patients to serious inconvenience.

20. We do not find any good ground to interfere with the notices and the directions given by the Chief Medical Officer to the petitioners to shift their activities other than consultancy including diagnostic, surgical, and admitting the patients to a place other than the residential houses in the Awas Evam Vikas Colony. It will, however, be open to the petitioners to either shift the medical services, except the consultancy from their residential houses in the Awas Evam Vikas Colony to any other place, or to confine their activities in the colony only for consultancy. 

Have a look at the decision.

Hindi Sahitya Sammelan certificate holders cannot practice medicine: Supreme Court

In a recent decision the Supreme Court has declared that "a person who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan Prayag after 1967 is not eligible to indulge in any kind of a medical practice." The Supreme Court noted that in terms of the prevailing rules, the certificates issued by Hindi Sahitya Sammelan Prayag after the year 1967 lost their recognition and thus only those persons who held the certificates prior to this cut-off date were entitled to be recognised. 

Holding that recognition of institutions was one of the essential conditions before the holder of the degree could be allowed to practice in the field of medicine, the Supreme Court noted its earlier decisions to declare the position of law in the following terms;

35. In Pramod Kumar Vs. U.P. Secondary Education Services Commission & Ors. (2008) 7 SCC 153, this Court held that recognised degree can only be awarded by University constituted/established under the provisions of University Grants Commission Act or Rule or any State Act or Parliament Act. No University can be established by a private management without any statutory backing. Similar reasons apply to Hindi Sahitya Sammelan also, as it is only a society duly registered under the Societies Registration Act. The competence to grant medical degree under any provisions of law is therefore, wanting.

36. In Delhi Pradesh Registered Medical Practitioners Vs. Delhi Admn. Director of Health Services & Ors., AIR 1998 SC 67, this Court held that unless a person possess the qualifications prescribed in Schedule II, III and IV of the Act, 1970, does not have a right to practice and the Central Legislation will proceed over State Act if there is any repugnancy between the two.

37. In Dr. Mukhtiar Chand & Ors. Vs. State of Punjab & Ors. AIR 1999 SC 468, this Court examined the issue of delegation of power dealing with the provisions of the Drugs and Cosmetics Act, 1940 wherein various observations have been made regarding registered medical practitioners and certain rules therein had been declared ultra vires by the High Court. However, the issue involved herein had not been raised in that case, though an observation has been made that persons enrolled on the State register under accepted law who enjoyed the privileges including the privilege to practice in any system of medicine may under certain circumstances also practice other system of medicine. In the said case, the issue was confined to the rights of those persons who were otherwise entitled to prescribe all medicines under the Drugs and Cosmetics Act, 1940 and the issue involved herein i.e. as to whether a person having no qualification as prescribed under the provisions of Act 1970 can be held to be qualified and entitled to practice Indian medicines, was not involved in Dr. Mukhtiar Chand (supra).

38. This Court in SLP (C) No. 22124 of 2002, Vaid Brij Bhushan Sharma Vs. Board of Ayur & Unani Systems, Med. & Anr. decided on 2.12.2002 also re-iterated the view that issue involved in Dr. Mukhtiar Chand (supra) was quite different and persons possessing such certificates were not entitled to practice. The Court held as under:-

“We are of the considered view that the judgment of the three Judge Bench reported in Dr. Mukhtiar Chand and Others case (supra) is totally different on principles as also the basis of claim therein, from the one relevant and necessary so far as the case on hand is concerned. The right of the petitioner therein to continue to practice as registered medical practitioner was not claimed on the basis of a degree of Vaid Visharad and Ayurved Rattan awarded by Hindi Sahitya Sammelan, Prayag as in this case, before us. The efficacy of this very degree to entitle the holders thereof to continue to practice as medical practitioner by virtue of the saving clause and protection under Section 17(3) of the Indian Medicine Central Council Act, 1970, had come up for decision in the earlier case and with particular reference to the provisions of Section 14 of the Indian Medical Central Council Act, 1970, read with the provisions contained in the schedule thereto it has been held that only such of those degrees issued between 1931 and 1967 were alone recognized for the purposes and not the one obtained by the petitioner in the year 1974, long after the coming into force of Section 14 on 15.8.1971 in the whole of the country. In the light of the above principles which directly applied to the case of the petitioner we find no merit in this petition and the same is dismissed.”

39. In Udai Singh Dagar & Ors. Vs. Union of India & Ors. (2007) 10 SCC 306 while dealing with a similar issue, this Court has held as under:-

“We, therefore, are of the opinion that even in the matter of laying down of qualification by a statute, the restriction imposed as envisaged under second part of Clause (6) of Article 19 of the Constitution of India must be construed being in consonance with the interest of the general public. The tests laid down, in our opinion, stand satisfied. We may, however, notice that Clause (6) of Article 19 of the Constitution of India stands on a higher footing vis-à-vis Clause (5) thereof. (vide State of Madras v. V.G. Row AIR 1952 SC 196).”

40. In Civil Appeal No. 1337 of 2007, Ayurvedic Enlisted Doctor’s Assn. Mumbai Vs. State of Maharashtra & Anr. decided on 27.2.2009, this Court considered the issue involved herein at length and came to the conclusion as under:-

“So far as the claim that once the name is included in the register of a particular State is a right to practice in any part of the country is not tenable on the face of Section 29 of the Central Act. The right to practice is restricted in the sense that only if the name finds place in the Central Register then the question of practicing in any part of the country arises. The conditions under Section 23 of the Central Act are cumulative. Since the appellants undisputedly do not possess recognized medical qualifications as defined in Section 2(1)(h) their names cannot be included in the Central Register. As a consequence, they cannot practice in any part of India in terms of Section 29 because of non-inclusion of their names in the Central Register. Section 17(3A) of the Maharashtra Act refers to Section 23 of the Central Act relating to Central Register. Section 17(1) relates to the register for the State. In any event, it is for the State to see that there is need for having qualification in terms of Second and fourth Schedule. The claim of the appellants is that they have a right to practice in any part of the country. In terms of Article 19(6) of the Constitution, reasonable restriction can always be put on the exercise of right under Article 19(g).” 

41. This Court further came to the conclusion that unless the person possesses the qualification as prescribed in Schedule II , III and IV of the Act, 1970, he cannot claim any right to practice in medical science and mere registration in any State register is of no consequence.

42. In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. The Court has a duty to strike a balance between the right of a Vaidya to practice, particularly, when he does not possess the requisite qualification and the right of a “little Indian” guaranteed under Article 21 of the Constitution which includes the protection and safeguarding the health and life of a public at large from mal-medical treatment. An unqualified, unregistered and unauthorized medical practitioner possessing no valid qualification, degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrolment of students or imparting any education or having any affiliation or recognition and that too without knowing the basic qualification of the candidates. 

Have a look at the decision.

Compensation for administering wrong medicine: High Court

Upholding the decision of the National Human Rights Commission, the Delhi High Court in a recent judgement has held that compensation can be awarded in a situation where administration of a wrong medicine to an otherwise healthy person which results in an irreversible deterioration of such person's health. It was argued by the appellants that the imposition of compensation of Rs. 1 lakh by the NHRC was excessive. The High Court, however, no only upheld the compensation so granted but also imposed exemplary costs for challenging such compensation.

The High Court inter alia observed as under;

25. The last submission made by Mr. Sharma, the learned counsel for the Petitioner, is that the compensation of Rs. 1 lakh awarded to Respondent No.1 by the NHRC was excessive. It is stated by learned counsel for the Petitioner that since Ms. Sunita was a chronic patient of cerebral seizure for more than six months “it is not established that the condition of the patient has worsened, if at all, by the administration of wrong medicine.”

26. Administering a wrong medicine to an otherwise healthy person which results in an irreversible deterioration of such person's health is far too serious a violation of that person‟s right to life under Article 21 of the Constitution. As pointed out by the NHRC, it is indeed a grave violation of the human rights of such person.

27. The UOI ought not to be permitted to advance the above submission about 'excessive' compensation when its own Complaint Committee has held its staff to be negligent in administering a wrong medicine. The report of Professor Madhuri Behari, HOD, Neurology, AIIMS confirms that there are serious side effects that can ensure if 'Thioril' is administered. The rare side effects include “convulsions or seizures, fast breathing, fast pulse, changes in blood pressure, pale skin and tiredness.” The report confirms that Thioril is a Schedule H drug meant for treating psychotic disorders and is not meant to be casually prescribed and administered. Respondent No. 1 went from the CGHS dispensary to the chemist‟s shop to buy the medicine in the trust that what was indented by the CGHS was safe and appropriate for being administered to her daughter. That trust was belied when a wrong medicine was indented. Ms. Sunita continues to battle the irreversible and deleterious effects such administration of wrong medicine has had on her health.

28. The gravity of the problem of administering a wrong medicine was noticed by the Supreme Court in Spring Meadows Hospital v. Harjot Ahluwalia. There the nurse of a private hospital had asked the father of a two-year old child to get an injection, Lariago, as written down by her after noting, albeit incorrectly, the name of the medicine as prescribed by the treating doctor. The minor child when injected with the said drug instantly collapsed and was ultimately reduced to a vegetative state. The National Consumer Disputes Redressal Commission (NCDRC) while holding the doctor and the nurse negligent also found the hospital to be vicariously liable. It awarded compensation of Rs.12.5 lakhs to the minor child and Rs.5 lakhs to the parents of the child for the “acute mental agony…by reason of their only son having been reduced to a vegetative state requiring life-long care and attention.” The Supreme Court affirmed the judgment of the NCDRC and observed:

“9. …..The influence exhorted by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country. In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever-increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably (sic) skill of a competent doctor.

10. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly.” (emphasis supplied)

29. In the above case it was urged by the hospital that it took the initiative in getting the child subsequently treated at AIIMS without payment and therefore the award of damages for mental agony to the parents was unjustified. Rejecting the said contention, the Supreme Court observed in para 14 as under:

“We, however, fail to appreciate this argument advanced on behalf of the learned counsel for the appellants inasmuch as the mental agony of the parents will not be dismissed in any manner merely seeing the only child living in a vegetative state on account of negligence of the hospital authorities on a hospital bed. The agony of the parents would remain so long as they remain alive and the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents.”

30. More recently, in Post Graduate Institute of Medical Education and Research, Chandigarh v. Jaspal Singh (2009) 7 SCC 330 the Supreme Court affirmed the compensation awarded by a consumer forum for the mistake committed by the attending doctors and staff of the PGI Institute at Chandigarh in transfusing the wrong blood group resulting in the death of a patient. Although the above decisions were rendered in the context of the CPA, this Court finds them to be equally applicable in the facts of the present case which is one of clear admission by UOI of the negligence on part of its CGHS dispensary in indenting a wrong medicine based on the conclusions of its own Complaints Committee which enquired into the matter. In the circumstances, the award of Rs. 1 lakh as compensation can only be termed as a „token‟ reparation. This Court therefore fails to appreciate why the UOI had to file the present writ petition to challenge the award by the NHRC of such relatively modest compensation to Respondent No.1.

31. This Court is constrained to observe that this is a vexatious litigation needlessly pursued by the UOI. Instead of accepting the finding of NHRC and agreeing to pay the 'token' compensation awarded to Respondent No.1, the UOI has dragged her to this Court, thus prolonging her agony and preventing her from getting the compensation amount for over two years. The petition therefore deserves to be dismissed with exemplary costs.

Have a look at the decision.

Doctor's liability for medical negligence: Principles restated

The liability of doctors for negligence and lack of due care in providing their services has always been a subject-matter of intense discussion in legal circles. The intent has always been there to attribute to the medical profession a particular level of care, the breach of which would not be permitted. The Bolem case of House of Lords has been the key decision leading to such a stand where the law-lords in 1957 declared that it was sufficient for the doctor to ward of legal claims if he had taken a decision which is taken as proper by a reasonable body of medical men skilled in that area. 


In a recent decision, dealing with the claims of negligence made against the doctors of Batra Hospital, the Supreme Court restated the test for medical negligence. The Court examined the previous decisions rendered on the issue to declare the principles as under;

94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-

I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. 

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. 

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes is providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.

95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.

Have a look at the decision.

Height varies momentarily: High Court

Ever heard that height of a person can vary each day? Well if no, it is intriguing to take note that the Delhi High Court has taken judicial notice of a fact which it proclaims to be well known in medical jurisprudence that the height of a person varies momentarily. The High Court was dealing with a writ petition filed by an for a government position wherein the qualified required a particular height. He complained that even though he carried such height, it was recorded wrongly by the authorities which was evident from three different heights recorded by them. In these facts the High Court upheld the plea of the Petitioner, taking note of these and other circumstances as under;

13. We have on record 3 height measurements of the petitioner. The first is the height measured by the respondents, being 169 cms; the second is the height measured at the District Hospital, Deoria UP, being 170.60 cms and the third is the height measured today being 171 cms. 

14. How is it happening?

15. It is known to medical jurisprudence that as the day passes the height of every individual shortens by a few millimeters. It is recognized by medical jurisprudence that the maximum height of a person is when he gets up early morning and takes the measurement for the reason, sleeping in a horizontal position in the bed all night, loosens the limbs and in particular the vertebra of the person. Rising out of the slumber at dawn and commencing normal activity, by standing on the feet, due to gravitation pull downward, the vertebra and the other joints in the body tend to compress.

16. This explains the variation in the height of the same person if his measurements are taken during early hours of the morning and in the afternoon and late evening; 3 measurements would surface.

Have a look at the decision. 

WMA prescribes Guidelines on 'Conflict of Interest' of Doctors

In its recently concluded General Assembly meeting held at Delhi, the World Medical Association has issued guidelines for physicians’ behaviour on issues of conflict of interest and their relationship with commercial enterprises. "These identify areas where a conflict of interest might occur during a physician’s day-to-day practice of medicine, and seek to assist physicians in resolving such conflicts in the best interests of their patients." Provision was also made to the aspect of "physicians receiving sponsorship or gifts when attending conferences or conducting research".

The Guidelines on 'Conflict of Interest' cater to five specific instances wherein conflict of interest could arise. These relate to (i) research - as "the interests of the clinician and the researcher may not be the same. If the same individual is assuming both roles, as is often the case, the potential conflict should be addressed by ensuring that appropriate steps are put in place to protect the patient, including disclosure of the potential conflict to the patient." In this regard the WMA inter alia prescribed that "Research should be conducted primarily for the advancement of medical science. A physician should never place his or her financial interests above the welfare of his or her patient. Patient interests and scientific integrity must be paramount. All relevant and material physician-researcher relationships and interests must be disclosed to potential research participants, research ethics boards, appropriate regulatory oversight bodies, medical journals, conference participants and the medical centre where the research is conducted."

On the aspect of (ii) education, the WMA prescribes that "The educational needs of students and the quality of their training experience must be balanced with the best interests of patients. Where these are in conflict, the interests of patients will take precedence" where "while recognizing that medical trainees require experience with real patients, physician-educators must ensure that these trainees receive supervision commensurate with their level of training." As regards (iii) Self-referrals and fee-splitting - WMA describing its broad ambit denounced this practice in as much as it stated, "Referral by physicians to health care facilities (such as laboratories) where they do not engage in professional activities but in which they have a financial interest is called self-referral. This practice has the potential to significantly influence clinical decision-making and is not generally considered acceptable unless there is a need in that particular community for the facility and other ownership is not a possibility (for example, in small rural communities). The physician in this situation should receive no more financial interest than would an ordinary investor."

Dealing with (iv) Physician offices, WMA was of the view that "The physician should not receive any financial compensation or other consideration either for referring a patient to these services, or for being located in close geographical proximity to them. Physician-owned buildings should not charge above-market or below-market rates to tenants." As regards (v) Organizational/institutional conflicts it was acknowledged that "Health care institutions in particular are increasingly subject to a number of pressures that threaten several of their roles, and many academic medical centres have begun to identify alternate sources of revenue." Therefore it was proposed that "policies should be in place to ensure that these new sources are not in conflict with the values and mission of the institution (for example, tobacco funding in medical schools)."

To remove all doubts (and perhaps to disallow lawyers to read the document like a statute) the guidelines also stated that "Each doctor has a moral duty to scrutinise his or her own behaviour for potential conflicts of interest, even if the conflicts fall outside the kinds of examples or situations addressed in this document. If unacknowledged, conflicts of interest can seriously undermine patient trust in the medical profession as well as in the individual practitioner."

As regard the "Relationship between Physicians and Commercial Enterprises" the WMA acknowledged that "conflicts of interest between commercial enterprises and physicians occur that can affect the care of patients and the reputation of the medical profession. The duty of the physician is to objectively evaluate what is best for the patient, while commercial enterprises are expected to bring profit to owners by selling their own products and competing for customers. Commercial considerations can affect the physician's objectivity, especially if the physician is in any way dependent on the enterprise" and in this regard prescribed various detailed guidelines in regard to (i) attendance in 'Medical Conferences', (ii) receiving 'Gifts' from medicine manufacturers, (iii) conducting 'Research', and (iv) 'Affiliation with Commercial entities'. Have a look.

Screening Test mandatory for Foreign Medical Degree holders: Supreme Court

Coming hard on the foreign medical degree holders, the Supreme Court has recently upheld the validity of the Screening Test prescribed by the Medical Council of India over and above the foreign medical degree, holding that it had been provided

"because citizens of India, who have obtained medical qualifications from Universities or medical institutions outside India, would be entitled to practice medicine in India and they cannot be permitted to treat other citizens of India with their half-baked knowledge and jeopardize their precious lives."

The decision came in the wake of the challenge by certain Indian citizens (who had obtained medical degrees from outside India) to the essential screening test prescribed by the Medical Council of India "in order to satisfy itself with regard to the adequacy of knowledge and skills acquired by citizens of India who obtain medical qualifications from universities or medical institutions outside India before they are granted registration to practice medicine in India." 

The challenge was that the imposition of 'Screening Test' was unwarranted as the degrees had been obtained from the colleges in the countries whose medical degrees were recognized by the Medical Council of India under the scheme of reciprocity. 

It was also argued that "if the provisions of the Screening Test Regulations 2002 are made applicable to the Indian citizens who have obtained medical qualifications included in the Second Schedule to the Act, a serious anomaly would arise in as much as all those students who are similarly placed as the appellants but who are not Indian citizens would be entitled to be enrolled on any Medical Register maintained by a State Medical Council or to have their names entered in the Indian Medical Register without undergoing the screening test whereas the appellants and other students who are Indian citizens would not be entitled to such a privilege without qualifying screening test which would be discriminatory and as such classification cannot be sustained in view of Article 14 of the Constitution".

The Medical Council of India, on the other hand, argued that under the scheme of the law, the Council was obligated in "going behind the degree for scrutinizing and evaluating the foreign medical qualification secured by a candidate seeking registration from the Council". It also pointed out to the Court that "screening test is required to be undergone in several countries like U.K., U.S.A., etc. where doctors from abroad with a foreign degree intend to start medical practice and, therefore, adoption of a similar system in India cannot be regarded as unreasonable."

It was also explained to the Court that the background to the law being amended to this effect was that "over a period of time it had come to the notice of the legislature that a large number of private agencies had sponsored students for medical studies in the institutions outside India for commercial consideration who had even not fulfilled the minimum eligibility requirements and therefore the Act was amended pursuant to which regulations have been framed and the appellants who have acquired M.B.B.S. qualification from Kathmandu University mentioned in second schedule to the Act are asked to qualify the prescribed screening test in larger interest of public but are not debarred from starting any medical practice in India in accordance with law"

The decision was fulled by the fact that the degree holders from foreign colleges included the "students who failed to fulfill the minimum eligibility requirements for admission to medical courses in India" and also that "serious aberrations were noticed in the standards of medical education available in some of the foreign countries which were not at par with the standards of medical education available in India."

The Court took note of the power of the Medical Council of India (under the Indian Medical Council Act, 1956) to negotiate with foreign authorities for recognition of medical qualifications granted by medical institutions in other countries which have a  scheme of reciprocity with India. In particular, the Supreme Court examined the conditions imposed by the Medical Council of India for recognition of degrees offered by medical colleges in Nepal and also took note of the fact that the Medical Council of India has not been particularly pleased with the infrastructural and other facilities available in certain medical colleges in Nepal from where most of the citizens challenging the screening test had obtained their medical degrees.  


The Court also recorded that the challengers had "failed to bring on record the facts, which would prima facie show that the standards of medical education prescribed either by the Government of Nepal or by Nepal Medical Council are at par with the standards of medical education available in India."

Have a look at the elaborate decision.