BHUSHAN KUMAR SINGHAL vs NATIONAL MEDICAL COMMISSION & ORS.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 05th OCTOBER, 2023
IN THE MATTER OF:
+ W.P.(C) 12723/2021
BHUSHAN KUMAR SINGHAL ….. Petitioner
Through: Ms. Shivangini Gupta and Mr. Arun, Advocates.
versus
NATIONAL MEDICAL COMMISSION & ORS.
….. Respondent
Through: Mr. T. Singhdev, Mr. Tanishq Srivastava, Mr. Abhijit Chakravarty, Ms. Anum Hussain, Mr. Bhanu Gulati, Mr. Abhas Sukhramani and Ms. Ramanpreet Kaur, Advocates for R-1/NMC.
Mr. Praveen Khatter, Advocate for R-2.
Mr. K.G. Sharma, Advocate for R-3.
Ms. Anushruti Dua and Ms. Mahima Dang, Advocates for R-4 and R-5.
CORAM:
HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The Petitioner has approached this Court under Article 226 of the Constitution of India praying for setting aside of the impugned Order dated 08.08.2019 passed by Respondent No.1/National Medical Commission, India and has further prayed for cancelling the licence of practice of Respondent no.3 to 5, who were the treating doctors of the Petitioners now deceased brother.
2. The impugned Order dated 08.08.2019 has upheld the Order dated 04.07.2017 passed by the Delhi Medical Council/Respondent No.2. The Delhi Medical Council vide Order dated 04.07.2017 has opined that the Petitioners brother, who is now deceased, was treated as per the accepted professional practice and the Petitioners brother did not pass away due to medical negligence in the treatment administered to the deceased patient at Maharaja Agrasen Hospital, but passed away due to acute Myocardial Infraction (IM) and Left Ventricle Failure (LVF) condition.
3. Shorn of details, the facts leading up to filing of the present petition are as follows:
a. It is the case of the Petitioner herein that his brother, Mr. Pawan Kumar (hereinafter referred to as the Deceased Patient), experienced minor chest pain at his residence in Kurukshetra on 28.03.2016. Due to the pain, the Petitioner, along with his brother/the patient, Mr. Pawan Kumar, consulted Respondent No.3, namely Dr. B.B. Chanana. Dr. B.B. Chanana prescribed medicines and suggested admitting Mr. Pawan Kumar in Maharaja Agrasen Hospital, New Delhi as he required urgent treatment. Mr. Pawan Kumar was admitted in Maharaja Agrasen Hospital on 31.03.2016.
b. Emergency angiography was conducted on the patient. Assessing the situation of the patient, the family members present in the Cath Lab were advised immediate PTCA Treatment which is a minimal invasive treatment for opening blocked coronary arteries to improve the blood flow with stenting the left anterior descending (LAD) artery. However, the procedure could not be undertaken by the doctors which, according to the Doctors, was due to the time taken by the family to arrive at a decision. In the meantime, Mr. Pawan Kumar started oozing blood and he was put on life saving ventilator. Shortly thereafter, the brother of the Petitioner patient passed away on 01.04.2016 at around 6:41pm after he suffered a heart attack.
c. The Petitioner being aggrieved filed a complaint against Respondents No.3 to 5 before P.S. Rohini, North. The Police Station referred the complaint to Respondent No.2 for their expert opinion. The Respondent No. 2 vide its Report dated 04.07.2017 concluded that the patient was treated as per the accepted professional practice and the patient died because of Acute MI and LVF. It was found that no case of medical negligence was made out in the treatment of late Mr. Pawan Kumar at Maharaja Agrasen Hospital.
d. The Petitioner, thereafter, approached Respondent No.2 on 17.10.2017 alleging medical negligence in the nature and manner of treatment administered to his brother under the Indian Medical Council Act.
e. The Respondent No.2 vide its Order dated 01.01.2018 reiterated its earlier findings and stated that no medical negligence was made out in the treatment administered to Mr. Pawan Kumar.
f. The Petitioner being aggrieved by the Order dated 04.07.2017 passed by the Respondent No.2, filed an appeal dated 13.04.2018 before the Respondent No.1 challenging the Order dated 04.07.2017. The Respondent No.1 vide its Order dated 08.08.2019 has upheld the order dated 04.07.2017 passed by the respondent no.2 and found no negligence on behalf of the respondent no.3-5 in treating the now deceased patient.
g. In addition to the above, the petitioner on 24.08.2018 filed a complaint against the Maharaja Agrasen Hospital with the Chief Minister of Delhi during the Chief Ministers Janta Samvad vide Order dated 31.08.2018, a committee was directed to be constituted by the Chief Minister of Delhi under the Directorate General of Health Services, Delhi, to inquire into the present case. On 19.02.2019, the committee after inquiry passed a final inquiry report dated 19.02.2019 concluding that the case was handled as per medical practice and in line with the acceptable protocol.
h. The Petitioner again made representations before the Chief Minister to reconsider and reconstitute the committee and initiate a fresh inquiry. The Chief Minister, in light of the re-representations made by the petitioner vide Order dated 08.05.2019, directed the Department of Health and Family Welfare, GNCTD to record the proceedings and to give an opportunity of being heard to all the stake holders before concluding the inquiry proceedings
i. Being aggrieved by the non-compliance of the order of the Chief Minister of Delhi by the Department of Health and Family Welfare, GNCTD, the Petitioner herein filed a writ petition before this Court bearing W.P.(C) No.452/2021, titled as Bhushan Kumar Singhal vs Health and Family Department GNCTD and Anr..
j. This Court vide Order dated 13.01.2021 directed that a special committee be constituted consisting of a special Board of Doctors of AIIMS which was to be headed by the Chief of Cardio Thoracic Sciences Centre for examining the case on merit. The committee was directed to hear all the parties and submit a reasoned enquiry report to the GNCTD for appropriate action, if any. In the meantime, the Petitioner also filed an FIR No.133/2021 dated 08.04.2021 at PS Rohini, North, against the hospital and the Respondents No.3-5.
k. On 11.09.2021, the committee constituted under the orders of the Chief Minister presented its report dated 01.02.2019 with a conclusion that the now deceased patient herein was given adequate care and was largely treated in line with the standard management protocols. The conclusion and recommendations given in the said report reads as under:
“The committee went through all the details and deliberated on various aspects of the case, including underlying heart disease (anterior wall myocardial infarction or major heart attack), the comorbidities. (diabetes), evidence of on-going life-threatening ischemia (reduced blood supply to a viable part of the heart muscle), the choice of investigations (blood tests, ECG, Echocardiography, Angiography), the timing of such investigations, communication with the patient and his relatives, the treatment provided when acute emergency occurred and in the intensive coronary care .unit, the experience and qualifications of personnel involved in patient care as well as documentation at various steps.
An informed and written consent was not taken before the procedure. The initial assessment was also not documented in the hospital before the procedure. Documentary evidence of indication of angiography, i.e. diagnosis of myocardial infarction (heart attack) for which angiography was done, is also not available in hospital records. Dr Subhash Gupta is not trained to perform angiography and hence not qualified to sign on angiography reports. Otherwise, from available evidences, the patient was given adequate care and though some aspects of treatment could be debated, patient was largely treated in line with standard management protocols.”
l. In view of the above said conclusion, the present petition came to be filed by the Petitioner herein challenging the Order dated 08.08.2019.
4. Notice was issued in the present petition and the pleadings stand complete.
5. The Ld. Counsel appearing for the Petitioner submits that the cause of death of the Petitioners brother/now deceased patient herein is a case of sheer negligence at the hands of Respondent Nos. 3-5 and that there was wilful medical malpractice and misdiagnosis, prescribing and administering incorrect treatment only for the sake of profiteering by a surgeon/ Respondent no.3, not qualified for the job.
6. The Ld. Counsel submits that the impugned Order dated 08.08.2019 passed in appeal by the Respondent No.1 upholding the Order dated 04.07.2017 passed by Respondent No.2 needs to be set aside in light of the findings of the Committee constituted by AIIMS.
7. It is further argued that the Respondent No.3 was not qualified to administer the treatment and he did so without the consent of the Petitioner and the family of the deceased patient which led to the death of the patient. He states on facts that Respondent No.3 did not call for any investigation or examination.
8. The Ld. Counsel submits that there are multiple fatal lacunae which have been pointed out in the Committee report of AIIMS against Respondent Nos.3-5, which ought to have been considered by Respondent No.1 and 2. The Committee opined that consent forms were signed after administering treatment which is against the ethical procedure. Moreover, the assessment form was filled after administering treatment of angiography, whereas it is settled protocol of medical science that the initial assessment is the first stage of diagnosis. It is stated that there are many other findings against the Respondent No.3-5 which establish the case of negligence by the respondent Doctor.
9. Per contra the Ld. Counsel appearing for the Respondents point out that the Petitioner has approached this Court with unclean hands inasmuch as he has deliberately failed to disclose material facts. He further submits that the petition ought not to be entertained as being barred by delay and latches as the impugned Order was passed on 08.08.2019 by MCI and the Petitioner has approached this Court by way of the present petition after a delay of 2 years and 3 months.
10. The Ld. Counsel appearing for Respondent No.1 states that the edifice of the present petition is that the report dated 11.09.2021 of the AIIMS Committee which was constituted in pursuance of the Orders dated 13.01.2021 and 13.04.2021 passed in W.P. No.452/2021 by this Court. It is stated that the Petitioner did not disclose to the Court that Respondent No.2 herein vide Order dated 04.07.2017 had already considered the allegations which are pending consideration before this Honble Court in W.P. No.452/2021. The Respondent No.2 had concluded that the treatment given to the deceased was as per the accepted professional practice and that the deceased patient passed away because of the consequence of acute Myocardial Infraction (IM) and Left Ventricle Failure (LVF) and, thus, no case of medical negligence was made out.
11. The Ld. Counsel for the Respondent No.1 states that an opinion dated 04.07.2021 was given by Respondent No.2 with reference to a police complaint filed by the Petitioner herein before PS Rohini. He further states that despite the opinion dated 04.07.2021, the Petitioner herein once again approached Respondent No.2 with the same grievances which came to be rejected vide Order dated 01.01.2018 with the same observations that were present in its decision dated 04.07.2021 which has been upheld by the NMC by Order dated 08.08.2019.
12. He further submits that the Petitioner in the present petition and in W.P. No.452/2021 deliberately and dishonestly concealed from the Honble Court that he had filed an appeal against Order dated 04.07.2017, wherein the erstwhile MCI after granting an opportunity of personal hearing to all the parties involved and after considering the material on record, concluded that there was no medical negligence in administering treatment to the Petitioners now deceased brother and accordingly upheld the Order dated 04.07.2017 passed by the Respondent No.2 herein.
13. He states that the petitioner herein has misled this Court in order to get favourable Orders dated 13.01.2021 and 13.04.2021 by not impleading Respondent no.2 herein and has sought directions to the Government of Delhi to comply with the Order of the Chief Minister of Delhi dated 24.08.2018. He states that the Report dated 01.02.2019 of the Inquiry Committee, which was constituted as per the order of the Chief Minister of Delhi, comprises of a committee of four doctors had also concluded that the treatment administered to the deceased patient herein was in line with the acceptable protocol of treatment and the Petitioner had intentionally hidden all the material facts from this Court regarding previous representations made by him before Respondent No.1 and 2 herein.
14. He contends that the Petitioner got the orders dated 13.01.2021 and 13.04.2021 passed in W.P. No.452/2021 by keeping this Court in the dark and without revealing the fact that Respondent Nos.1 and 2 had already considered the case of the Petitioner and had also given the reports exonerating the Doctor. He further states that even the AIIMS Committee had held in favour of Respondents No.3 to 5, concluding that the deceased was treated with adequate care and the treatment was largely in line with the standard management protocols.
15. Heard the Ld. Counsels appearing for all the parties and considered the material on record.
16. It is an admitted fact that the brother of the Petitioner herein passed away on 01.04.2016 after experiencing chest pain which led to acute Myocardial Infraction (IM) and Left Ventricle Failure (LVF) condition on 31.03.2016.
17. The Petitioner, aggrieved by the treatment administered by Respondent Nos. 3 to 5 at Maharaja Agrasen Hospital to his now deceased brother/patient, filed a police complaint at P.S. Rohini, North. The police in turn forwarded the complaint to respondent no.2 herein for its medical opinion.
18. The Respondent No.2 vide its report dated 04.07.2017 found that there was no medical negligence or professional misconduct and that the brother of the Petitioner was treated as per accepted professional practice.
19. It is also an admitted fact that the petitioner approached the Respondent No.2 repeatedly raising the same grievances which were once again adjudicated upon by Respondent No.2 and the report dated 04.07.2017 was reiterated/confirmed vide order dated 01.01.2018 by Respondent No.2. The Petitioner not being satisfied with the Order dated 01.01.2018, once again challenged the Order dated 04.07.2017 before the Ethics Committee of the erstwhile MCI/ now Respondent No.1.
20. The Ethics Committee after adhering to due procedure, vide Order dated 19.02.2019 upheld the Order passed by the Respondent No.2 herein dated 04.07.2017, This decision of the Ethics Committee was upheld by the Board of Governors of the erstwhile MCI vide Order dated 08.08.2019, which order of the Governors of the erstwhile MCI is impugned in the present petition.
21. It is also an admitted fact that the Petitioner before approaching this Court vide the present petition had approached the Chief Minister of Delhi in Janta Samvad proceedings praying for conduction of an inquiry into the allegations of medical negligence and professional misconduct made by him against the Respondent Nos. 3 to 5, by suppressing the Order dated 04.07.2017 passed by Respondent No.2 and Order dated 08.08.2019 passed by Respondent No.1/erstwhile MCI. The Chief Minister of Delhi in pursuance to the request made by the Petitioner herein directed the Department of Health and Family Welfare of GNCTD to conduct an inquiry into the allegations of medical negligence and wrong treatment meted out to the Petitioners brother/deceased patient herein.
22. It is also apparent from the record that an Inquiry Committee, constituted as per the request by the Chief Minister, had a panel of four doctors, including a Cardiologist from GB Pant Hospital, New Delhi. The Inquiry Report dated 01.02.2019 unanimously concluded that the patient was handled as per medical practice and in line with the acceptable protocol of treatment. The Petitioner herein once again requested the Chief Minister for constituting a fresh inquiry committee. The Chief Minister vide Order dated 08.05.2019 directed the Department of Health and Family Welfare that video recording of the proceedings be made and a fair opportunity be given to all stakeholders before concluding the inquiry.
23. By perusing the record of the W.P. No. 452/2021 titled as Bhushan Kumar vs Health and Family Welfare Department, GNCTD and Anr., it becomes apparent to this Court that the Petitioner herein approached this Court praying for direction of compliance of Order dated 08.05.2019 passed by the Chief Minister of Delhi to the Department of Health and Family Welfare, GNCTD, without disclosing the proceedings and orders passed by the Respondent No.1 and 2 herein by conducting detailed inquiry and passing reasoned orders.
24. This Court is of the opinion that the Petitioner herein without disclosing the Orders passed by the Respondent No.1 and 2 herein dated 04.07.2021, 01.01.2018 and 08.08.2019 and without impleading the Respondent No.1 and 2, secured orders dated 13.01.2021 and 13.04.2021 in W.P. No.452/2021. This Court vide Order dated 13.01.2021 had directed a fresh inquiry by a committee of doctors of AIIMS, New Delhi into the allegations made by the Petitioner by granting an opportunity of being heard to the parties and to submit a report to the GNCTD for appropriate action to that being aware of the fact that the Respondent Nos.1 and 2 had already considered the case of the Petitioner and had exonerated the Doctor concerned.
25. The Petitioner herein has now approached this Court relying on the AIIMS Committee report dated 11.09.2021, which report in its conclusion has stated that Otherwise, from available evidence, the patient was given adequate care and though some aspects of treatment could not be debated, patient was largely treated in line with standard management protocol.
26. This court is of the opinion from the perusal of the above facts and arguments advanced by the counsel appearing for the rRspondents that the Petitioner herein has approached this Court with unclean hands by suppressing material information and has misled this Court with the view of obtaining favourable orders. A litigant who hides facts which are in his knowledge has no right to be heard on the merits of his grievances. The reliance placed upon a judgement passed by the Apex Court in Kishore Samrite vs. State of UP & Ors., (2013) 2 SCC 398, by the Counsel for the Respondent No.1 is relevant in the facts of the present case and the same states as follows:
32.1. Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts and came to the courts with unclean hands. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor are entitled to any relief.
32.2. The people, who approach the court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
32.3. The obligation to approach the court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
32.4. Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have overshadowed the old ethos of litigative values for small gains.
32.5. A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
32.6. The court must ensure that its process is not abused and in order to prevent abuse of process of court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the court would be duty-bound to impose heavy costs.
34. It has been consistently stated by this Court that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties, as truth is the basis of the justice-delivery system.
35. With the passage of time, it has been realised that people used to feel proud to tell the truth in the courts, irrespective of the consequences but that practice no longer proves true, in all cases. The court does not sit simply as an umpire in a contest between two parties and declare at the end of the combat as to who has won and who has lost but it has a legal duty of its own, independent of parties, to take active role in the proceedings and reach at the truth, which is the foundation of administration of justice. Therefore, the truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehood, must be appropriately dealt with. The parties must state forthwith sufficient factual details to the extent that it reduces the ability to put forward false and exaggerated claims and a litigant must approach the court with clean hands. It is the bounden duty of the court to ensure that dishonesty and any attempt to surpass the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorised or unjust gain to anyone as a result of abuse of process of court. One way to curb this tendency is to impose realistic or punitive costs.
36. The party not approaching the court with clean hands would be liable to be non-suited and such party, who has also succeeded in polluting the stream of justice by making patently false statements, cannot claim relief, especially under Article 136 of the Constitution. While approaching the court, a litigant must state correct facts and come with clean hands. Where such statement of facts is based on some information, the source of such information must also be disclosed. Totally misconceived petition amounts to an abuse of process of court and such a litigant is not required to be dealt with lightly, as a petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to an abuse of process of court. A litigant is bound to make full and true disclosure of facts. (Refer : Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] , A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam [(2012) 6 SCC 430 : (2012) 3 SCC (Civ) 735] , Chandra Shashi v. Anil Kumar Verma [(1995) 1 SCC 421 : 1995 SCC (Cri) 239] , Abhyudya Sanstha v. Union of India [(2011) 6 SCC 145 : (2011) 3 SCC (Civ) 241] , State of M.P. v. Narmada Bachao Andolan [(2011) 7 SCC 639 : (2011) 3 SCC (Civ) 875] , Kalyaneshwari v. Union of India [(2011) 3 SCC 287 : (2011) 1 SCC (L&S) 498] .)
37. The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for courts. Wide jurisdiction of the court should not become a source of abuse of process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.
38. No litigant can play hide and seek with the courts or adopt pick and choose. True facts ought to be disclosed as the court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy. In such cases, the court is duty-bound to discharge rule nisi and such applicant is required to be dealt with for contempt of court for abusing the process of court. (K.D. Sharma v. SAIL [(2008) 12 SCC 481] .)
27. The Petitioner has based the prayers in the present writ petition only on the report of the AIIMS Committee dated 11.09.2021 constituted by this Court vide Order dated 13.01.2021 passed in W.P. No.452/2021. In the report, the AIIMS Committee has observed that the treatment provided to the deceased patient was in line with medical protocols and there was no professional misconduct or negligence which caused the untimely demise of the Petitioners brother/deceased patient.
28. Under Article 226 of the Constitution of India, this Court cannot substitute its own conclusion to the one arrived at by experts until and unless there is gross miscarriage of justice which strikes at the root of the case. A team of experts have considered the case and have arrived at a conclusion and this Court cannot hazard a venture into this domain. It is well settled that the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable.
29. It is apparent from the material on record that the Petitioner has made multiple representations and thus there has been no apparent violation of his fundamental rights. All expert bodies of the Respondents herein have concurred on the same opinion that there was no medical negligence and professional misconduct on behalf of the Respondents No.3-5 which led to the untimely demise of the petitioners brother.
30. It is well settled that this Court does not sit as an Appellate Authority over the decisions arrived at by the experts. Respondents No.1 and 2, both being are expert bodies, have considered the facts and have opined that the brother of the Petitioner was treated as per the accepted professional practice and that the patient died as a consequence of acute Myocardial Infraction (IM) and Left Ventricle Failure (LVF). The facts of the case reveal that the Petitioner has repeatedly knocked the doors of various authorities unsuccessfully. Committee after Committee has looked into the case of the Petitioner and have found that there was no negligence on the part of the Doctors. It is unfortunate that the Petitioner has lost his brother but it does not give a licence to the Petitioner to arm-twist the Doctors or to make repeated representations so that some opinion is received to blackmail the doctors probably for receiving compensation. The approach of the Petitioner does not seem to be of a grieving brother but probably of a person who is looking at an opportunity to make a profit out of a tragedy. The entire case of the Petitioner is based on the report dated 11.09.2021, passed by a committee consisting of Doctors of AIIMS in compliance of the Orders dated 13.01.2021 and 13.04.2021, passed by this Court in view of the fact that Respondents No.1 & 2 had already exonerated the doctors.
31. A perusal of the conclusions and recommendations given by the Doctors of AIIMS points out that the patient was given adequate care and though some aspects of treatment could be debated, patient was largely treated in line with standard management protocols. As stated earlier, the Petitioner has approached this Court after two years and three months of the Order dated 08.08.2019, passed by the Respondent No.1, and the delay has not been explained by the Petitioner. Only on the basis of certain sentences in the Conclusions and Recommendations of the Doctors of the AIIMS, the Petitioner has approached this Court. This reaffirms that the present petition is not bona fide. This Court is of the opinion that the present Writ Petition is a complete abuse of the process of law. Ordinarily, this Court would have imposed costs on the Petitioner but considering the fact that the Petitioner has lost his brother, this Court is refraining from imposing costs.
32. The Writ Petition is dismissed along with the pending application(s), if any.
SUBRAMONIUM PRASAD, J
OCTOBER 05, 2023
Urvi
W.P.(C) 12723/2021 Page 1 of 18