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Judgment
B. Rajendran, J.—The applicant is a Doctor by profession. She was working as Assistant Surgeon in the Head Quarters Hospital, Tuticorin.
By proceedings of the Director of Medical and Rural Health Services, Madras, the second respondent herein dated 08.02.1995, she was placed
under Suspension on the ground that while attending two family welfare sterlisation operations, due to the carelessness and negligence on her part,
two patients have died. A charge memo dated 17.07.1995 under Rule 17(b) was issued containing three charges. An oral enquiry was conducted
against the petitioner. The enquiry officer held that two charges are partially proved. Based on the report of the enquiry officer, the first respondent,
by the impugned order dated 16.01.1998 passed an order removing the petitioner from service. When opinion was sought for from the Tamil
Nadu Public Service Commission, the Commission advised that the disciplinary proceedings taken against the delinquent officer may be re-started
from the stage where the flaw pointed out by the Commission may be pursued. According to the petitioner, the Government failed to take into
account the opinion given by the Commission and awarded the punishment arbitrarily. Aggrieved by the aforesaid order, the petitioner has filed
O.A. No. 8076 of 1998 before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No.
38731 of 2006.
It was contended by the petitioner that this is a case of no evidence and none of the submissions made by the petitioner was considered by the
first respondent before passing the impugned order, which amounts to violation of principles of natural justice, equity and fairplay. It was further
contended that a small injury in a case of laproscopic procedure in any intra abdominal organ is inherent in such surgical complication. Therefore, it
cannot be attributed to the negligence and carelessness of the petitioner. The main contention raised by the petitioner was that the petitioner has
requested the enquiry officer to examine an eminent laproscopic Surgeon in order to distinguish the negligence of duty and accident as an eminent
laproscopic surgeon alone will be in a position to give a clear picture about the surgical complications, but the said request of the petitioner was
denied by the Enquiry Officer nor the enquiry officer has taken the assistance of any expert opinion before concluding the enquiry, hence, the
conclusion of the enquiry officer itself is vitiated. It was further contended that the enquiry officer did not give any valid reasons for coming to the
conclusion or afforded sufficient opportunity to the petitioner to put forward her defence and to prove her innocence. The findings of the enquiry
officer is only on the basis of suspicion, surmises and conjencture. When the enquiry officer held it is the collective responsibility of all the three
Doctors, who had attended the patient, the petitioner alone cannot be held responsible entirely for the death. Therefore also, the disciplinary
proceedings are vitiated. Lastly, she contended that the co-delinquent Doctors were examined against the appellant, which is contrary to the well
settled principles.
A detailed reply affidavit was filed by the respondents contending that as per the report of the enquiry officer, the petitioner was mainly
responsible for the two death due to her negligence and carelessness. The fact remains that the petitioner did not suspect the bowel injury in the
light of clinical symptoms observed by her on 09.05.1994 at Government Hospital, Tiruchendur and failed to advise Dr. Alamelu, Assistant
Surgeon to refer the case to Head Quarters, Tuticorin immediately. Had the petitioner suggested to refer the case as soon as she examined the
patient, the death could have been avoided. Therefore, the Government thought it fit to recover the compensation sanctioned by the Government to
the two patients based on the directions of the National Human Rights Commission from the petitioner. It was further contended that the Enquiry
Officer himself is a Doctor and therefore he is a competent person to conduct the enquiry. Further, the enquiry officer himself is fully acquainted
with the treatment and the procedures laid down therein. Therefore, the petitoner has no right to insist the enquiry officer to obtain the opinion of
other surgeon while the Enquiry Officer is in the medical cadre and acquainted with the treatment aspect. Since sufficient opportunities have been
granted in the enquiry proceedings, the order passed by the respondent, based on the report of the enquiry officer and on consideration of the facts
and circumstance of the case is valid and interference of this Court is not warranted.
Heard both sides. The petitioner has filed M.P. No. 1 of 2009 to permit her to raise additional grounds in the above writ petition. In the affidavit
filed in support of the said petition, the petitioner has relied on the judgment of this Court rendered in respect of co-delinquent namely Dr. Alamelu
in WP No. 32867 of 2006 dated 07.10.2009. In the counter affidavit filed for M.P. No. 1 of 2009, the respondents have reiterated their
averments made in the reply affidavit filed before the Tribunal. In any event, the reasons stated in the affidavit filed in support of the petition to raise
additional grounds are convincing and by allowing this petition no prejudice will be caused to the respondents. Accordingly, M.P. No. 1 of 2009 is
allowed as prayed for.
The learned Counsel for the petitioner brought to the notice of this Court the order dated 07.10.2009 made in WP No. 32867 of 2006, which
was filed by the co-delinquent Dr. Alamelu. The said Dr. Alamelu is the co-delinquent in respect of charge No. 3 framed against the petitioner.
Though separate proceedings were initiated against the two Doctors, charges are one and the same in so far as charge No. 3 is concerned. In fact,
the findings in the Enquiry Officer''s report is both the Doctors are collectively responsible and liable for the death of the patients.
So far as the co-delinquent Dr. Alamelu is concerned, as against the order of removal passed by the Government in G.O. Ms. No. 22 dated
06.01.1998, she had filed O.A. No. 2316 of 1998 before the Tribunal, which stood transferred to this Court and re-numbered as WP No. 32867
of 2006. After elaborate discussion, by an order dated 07.10.2009, this Court set aside the order of removal passed against Dr. Alamelu and
allowed the writ petition by referring to various decisions of the Honourable Supreme Court. In Para Nos. 24 to 30, it was held thus:
The Supreme Court while dealing with the case of medical negligence vide its another recent decision in Martin F. D''Souza Vs. Mohd. Ishfaq,
relied upon the Bolam test as appointed in Jacob Mathew''s case and laid down cautions, guidelines in delaing with such cases. The following
passages found in Paras 26,29, 31,34,35,40,42 and 65 may be usefully extracted below:
Now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also, they may disagree on what is a high
level of care and what is a low level of care.
...
Before dealing with these principles two things have to be kept in mind: (1) Judges are not experts in medical science, rather they are laymen.
This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on
testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes
have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand,
particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) a balance has to be struck in such cases. While
doctors who cause death or agony due to medical negligence should certainly be penalised, it must also be remembered that like all professionals
doctors too can make errors of judgment but if they are punished for this no doctor can practise his vocation with equanimity. Indiscriminate
proceedings and decisions against doctors are counterproductive and serve society no good. They inhibit the free exercise of judgment by a
professional in a particular situation.
...
As already stated above, the broad general principles of medical negligence have been laid down in the Supreme Court judgment in Jacob
Mathew v. State of Punjab However, these principles can be indicated briefly here:
The basic principle relating to medical negligence is known as the Bolam rule. This was laid down in the judgment of McNair, J. in Bolam v. Friern
Hospital as follows: (WLR p. 586)
where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is
not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled
man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient
if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
(emphasis supplied)
Bolam test has been approved by the Supreme Court in Jacob Mathew case.
...
A medical practitioner is not liable to be held negligent 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 would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after
an operation, vide Achutrao Haribhau Khodwa v. State of Maharashtra or operates on the wrong part of the body, and he would be also
criminally liable if he operates on someone for removing an organ for illegitimate trade.
There is a tendency to confuse a reasonable person with an error-free person. An error of judgment may or may not be negligent. It depends
on the nature of the error.
...
Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held
straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act
or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single
failure may cost him dear in his lapse.
When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore,
somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes
have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalised for losing a case provided he appeared
in it and made his submissions.
From the aforementioned principles and decisions relating to medical negligence, with which we agree, it is evident that doctors and nursing
homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long
as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful. However, every doctor should,
for his own interest, carefully read the Code of Medical Ethics which is part of the Indian Medical Council (Professional Conduct, Etiquette and
Ethics) Regulations, 2002 issued by the Medical Council of India u/s 20A read with Section 3(m) of the Indian Medical Council Act, 1956.
Coming to the question of procedure adopted in the present enquiry, it is necessary to refer to certain decisions of the Supreme Court which
may have some bearing. The Supreme Court while dealing with the procedure to be adopted by an enquiry officer to conduct an enquiry vide
decision in S. Parthasarthi Vs. State of Andhra Pradesh, observed as follows:
...The decision of this Court in the State of Uttar Pradesh v. Mohammad Nooh makes it clear that if an inquiring officer adopts a procedure
which is contrary to the rules of natural justice, the ultimate decision based on his report of inquiry is liable to be quashed. We see no reason for
not applying the same principle here as we find that the inquiring officer was biased.
The Supreme Court cautioned the enquiry officer in relying upon materials gathered outside the enquiry or without notice to the charged officer
and held such a procedure was repugnant to Rule of law. Even if such orders are confirmed in an appeal, that will not cure the defects crept into
the enquiry. The said decision is reported in State of Assam and Another Vs. Mahendra Kumar Das and Others, . The following passage found in
paragraph 24 may be usefully extracted below:
A perusal of the report of the Enquiry Officer, in the proceedings before us, shows that there is absolutely no reference to any data or material,
if any, collected by him when he consulted the Deputy Superintendent of Police, Anti-Corruption Branch on July 14 and 15, 1958. But, we have
to state that it is highly improper for an Enquiry Officer during the conduct of an enquiry to attempt to collect any materials from outside sources
and not make that information, so collected, available to the delinquent officer and further make use of the same in the enquiry proceedings. There
may also be cases where a very clever and astute enquiry officer may collect outside information behind the back of the delinquent officer and,
without any apparent reference to the information so collected, may have been influenced in the conclusions recorded by him against the delinquent
officer concerned. If it is established that the material behind the back of the delinquent officer has been collected during the enquiry and such
material has been relied on by the Enquiry Officer, without its having been disclosed to the delinquent officer, it can be stated that the enquiry
proceedings are vitiated. It was, under such circumstances, that this Court, in Executive Committee of U.P. State Warehousing Corporation v.
Chandra Kiran Tyagi accepted the view of the High Court that the enquiry proceedings were vitiated by the Enquiry Officer collecting information
from outside sources and utilising the same in his findings recorded against the delinquent officer without disclosing that information to the accused
officer. It was, again, under similar circumstances that this Court in Sanawarmal Purohit case upheld the order of the High Court holding the
enquiry proceedings to be contrary to the principles of natural justice when the Enquiry Officer had collected information from third parties and
acted upon the information so collected, without disclosing the same to the accused. If the disciplinary authority himself had been also the Enquiry
Officer and, during the course of the enquiry he had collected materials behind the back of the accused and used such materials without disclosing
the same to the officer concerned, the position will be still worse and the mere fact that such an order passed by the disciplinary authority had even
been confirmed by an Appellate Authority without anything more, will not alter the position in favour of the department.
The Supreme Court after analyzing all the previous decisions on the issue, culled out the basic ingredients that are to be found in an enquiry
vide its judgment in State of Uttaranchal and Others Vs. Kharak Singh, The following passage found in paragraph 15 may be usefully extracted
below:
From the above decisions, the following principles would emerge:
(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer,
then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the
enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an
opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead
any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy
of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.
(Emphasis added)
If the present enquiry is seen in the context of the above legal precedents it will be clear that the enquiry officer''s conduct in questioning the
petitioner before the departmental witnesses were examined as well as recording the opinion of two senior doctors after the enquiry and in the
absence of the petitioner will be clearly illegal. Further, there is no explanation for not conducting a joint trial in respect of the alleged negligence of
the petitioner and the other doctor Bagavathyammal. Conducting of separate enquiries on the very same issue had really prejudiced the petitioner.
When an opportunity for an employee is given to represent against the findings recorded by the Enquiry Officer, it is incumbent upon the
disciplinary authority to deal with the objections raised. In the present case, neither the Government nor the TNPSC which was consulted had ever
found out the perfunctory nature of the enquiry conducted by the respondents. The Enquiry was only a farce as the opinion of the two doctors
were not recorded in the presence of the petitioner. Infact, there is nothing in the original files to indicate that the petitioner was present during the
recording the statement of the two doctors and that she was allowed to cross examine those two doctors.
In any event as rightly contended in the additional grounds that in respect of some incident, the respondents ought not to have conducted
separate enquiries and that too in such perfunctory manner and deprive the petitioner''s right to hold her post. The Supreme Court in the legal
precedent set out above had clearly laid down certain guidelines while dealing with the cases of medical negligence. None of those warnings ever
had any impact over the respondents. It is too dangerous to hold the petitioner guilty with such scanty evidence.
In the above Order, it was held by this Court that the order of removal from service passed against Dr. Alamelu is illegal. It was also pointed out
in the above judgment that in respect of the same incident, the respondents ought not to have conducted separate enquiry and where it was held by
the enquiry officer that the Doctors are jointly responsible for the death. Therefore, on that ground also, the order of removal passed against Dr.
Alamelu was set aside by this Court.
The learned Government Advocate would contend that the order passed by this Court in WP No. 32867 of 2006 dated 07.10.2009 will apply
to the petitioner only in respect of charge No. 3, but the petitioner had been found guilty in respect of the other two charges. In so far as the first
charge is concerned, the petitioner performed laproscopic surgery on a patient on 19.07.1974 and the patient collapsed immediately after
laproscopy was done on her. Therefore, according to the learned Government Advocate, had the petitioner taken note of the injury, the life of the
patient would be at safe.
In reply, the learned Counsel for the petitioner pointed out that it is a dangerous question. A Doctor, who is dealing with the life of the patient
has to take necessary and quick decision as per the facts and circumstances prevailing then and best of the decision has to be taken by the Doctor.
The learned Counsel for the petitioner vehemently averred that this is purely a technical issue and this can be decided only by an expert who is in
the field namely laproscopic surgery and who can only pin point whether the injury was caused due to the negligence of the petitioner or not.
The Enquiry Officer rejected the request of the petitioner for getting the opinion of an expert on the ground that he himself is a Doctor by
profession. This is rather very unfortunate. Merely because the enquiry officer is a Doctor, can it be said that he is an expert or whether he can give
an expert opinion in that very particular case. It is not known as to why the enquiry officer failed to take the opinion of an expert in the field before
arriving at a decision. In this context, it is relevant to refer to the decision of the Honourable Supreme Court reported in ( Martin F. D''Souza Vs.
Mohd. Ishfaq, , it was held as follows:-
A medical practitioner is not liable to be held negligent 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 would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after
an operation, vide Achutrao Haribhau Khodwa v. State of Maharashtra or operates on the wrong part of the body, and he would be also
criminally liable if he operates on someone for removing an organ for illegitimate trade.
There is a tendency to confuse a reasonable person with an error-free person. An error of judgment may or may not be negligent. It depends
on the nature of the error.
It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional
was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in
the circumstances. As Lord Clyde stated in Hunter v. Hanley:
In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because
his conclusion differs from that of other professional men"". The true test for establishing negligence in diagnosis or treatment on the part of a doctor
is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.
(emphasis supplied)
The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where
the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that
point of time.
The Honourable Supreme Court, in the above decision as well as in catena of decisions held that when there are two views plausible and if the
Doctor takes the one among the two opinions as thebestl, merely because the Doctor had taken a particular opinion, which was subsequently
found to be not correct, it cannot be construed to be a negligent attitude. In this case, if the first charge against the petitioner is tested in the light of
the above decisions, it can be concluded that it was not clearly substantiated against the petiitoner, more so when an expert opinion was not
obtained by the respondents. As far as the second charge is concerned, even as found by the enquiry officer, it is a collective responsibility among
the Doctors. Therefore, charge No. 2 cannot also be put against the petitoner to hold her guilty of the charges.
It is also to be pointed out that among the Doctors who performed the surgical procedure, joint enquiry was not conducted. As regards one of
the doctors namely Dr. Alamelu is concerned, this Court had set aside the punishment of removal of service imposed on her. In any view of the
matter, the petitioner squarely comes within the ambit of the order passed by this Court in the case of Dr. Alamelu. Inasmuch as the petitioner is
also identically placed, the benefit of the order passed by this Court in the case of Dr. Alamelu has to be extended to her.
In the result, the impugned order passed by the first respondent in G.O.(D) No. 22 dated 16.01.1998 is set aside and the writ petition is
allowed. No costs. It is now brought to the notice of this Court that the petitioner has already retired from her service on 31.08.2009. Therefore,
the respondents are directed to settle the terminal benefits payable to the petitioner as expeditiously as possible.