The new NMC Act, 2019 was enacted into law last month with publication in the official Gazette as the old Indian Medical Council Act, 1956 was repealed by the government. The Medical Council of India (MCI) was also disbanded as most regular functions of MCI are in limbo including adjudication of appeals (under section 8.8 of old MCI Code of Ethics & Regulations, 2002) by the hapless victims of alleged medical negligence against doctors acquitted by the state medical councils. The section 8.8 (became a law only in 2004 as a result of Supreme Court’s direction in the PIL (SC W.P. No. 317/2000) filed by PBT) was framed to give an opportunity to challenge the victims whose complaint against the errant doctor was dismissed (which is vast majority of the cases) by an often biased and one-sided decision by doctor-members in the state medical council.
But section 8.8 stipulate that any challenge to the verdict by the state medical council must be made within a maximum period of 60 days. There is no functioning MCI for the past more than 30 days. Under section 27(d) of the new NMC Act, although an aggrieved victim may lodge an appeal within 30 days to the Ethics & Medical Registration Board against an adverse decision by the state medical council, but no Ethical Board exists at the present moment and there is little hope that any such Board would be constituted in the near future as even the selection of the 33 NMC members (who in turn would form the Ethical Board) seems to be in a turmoil, possibly due to political posturing and infighting within the health ministry. But the obvious question – soon 60 days will be over for any victim whose complaint of medical negligence was dismissed by the state medical council – where will they go to appeal against any biased decision by the state medical council? The game is rigged by the influential and wealthy hospitals/doctors who would be shielded as before. The new NMC Act, 2019 is nothing more than putting an old wine in a new bottle.
Indian Medical Association (IMA) has called nation-wide “doctors’ strike” on Wednesday (July 31, 2019) in protest of the proposed National Medical Commission (NMC) Bill even as a “Contempt” case against the IMA leaders for calling another “strike” last month is pending before the Apex Court. PBT recently filed the “Contempt” against IMA after the medical association called a nation-wide doctors’ strike on June 17, 2019 in support of Kolkata doctors’ protest against alleged mob violence.
In 2012, PBT filed a PIL in the Supreme Court (W.P. No. 253/2012) against the IMA after several patients died following a “doctors’ strike” that disrupted hospital services in Delhi and across India. In a landmark judgment dated 11th November, 2014, a three-judge bench of the Apex Court held that strike by doctors “may amount to negligence warranting action for misconduct“. Supreme Court also held that doctors should not go on a strike for any reason. Five years later, IMA has continued to ignore the Apex Court’s direction by joining strike to settle their score against the government taking the defenseless patients at ransom. While the proposed NMC Bill may have serious flaws, PBT strongly denounces the “doctors’ strike” tomorrow because it is wrong, both legally and morally.
For the past several years, PBT president Dr. Kunal Saha, a permanent resident of USA, travels to India every year to appear and argue in consumer courts on behalf of victims of medical negligence who come to PBT to help them find medical justice. Supreme Court of India had already said categorically that non-advocates and NGOs are permitted to argue on behalf of others before the consumer courts in India. PBT lodged a contempt case against National Consumer Forum (NCDRC) in 2012 for not framing rules for non-advocates to appear for victims of medical negligence and Apex Court had directed NCDRC to frame such rules to allow so that non-advocates and NGOs can represent consumers including victims of medical negligence as “authorized representative” in NCDRC, State and District Consumer Courts.
When Dr. Saha came last December and appeared to represent victims of medical negligence before the West Benga State Consumer Commission, he was viciously attacked by large number of lawyers who wanted him to be ousted from the court. Police complaint was lodged and a writ petition was filed in Calcutta High Court in which notice was issued to the State Consumer Court. When Dr. Saha appeared before the Kolkata Consumer Court last week for an alleged victims of medical negligence, he again faced brutal attack from the lawyers appearing for the accused doctor and hospital who demanded that Dr. Saha be barred from the consumer court. The Kolkata State Consumer Court passed an order directing the protesting lawyers to file a formal application seeking to bar Dr. Saha on next day of hearing on 17th July, 2019 (see Order below). But when this matter came up on 17th July, 2019, the same lawyers wanted more time to file the application knowing well that Dr. Saha lives in USA and cannot be staying in India for indefinite period of time. However, court has given more time for the advocates (for doctor/hospital) to file application. Other cases where Dr. Saha has appeared to plead for the victims of medical negligence, advocates for doctors/hospitals have routinely started to clamor with the unlawful claim that Dr. Saha should not be allowed to appear for victims of medical negligence. PBT and Dr. Saha has given sworn affidavits many times in the past stating that all the help that they have been providing victims of medical negligence including Dr. Saha’s travel and stay in India and his personal appearance in court are done completely free of cost at PBT and Dr. Saha’s own expense. The main question that writ at large : Why are the powerful advocates representing the accused doctors and hospitals are fighting to stop Dr. Saha to argue in court on behalf of victims of medical negligence? Does the powerful medical lobby including the Indian Medical Association (IMA) have any role in this shocking attacks against Dr. Saha?
WB State Commission Order (July, 2019)
Outlook (July 10, 2019)A new contempt of court petition was filed by PBT against the Indian Medical Association (IMA) and Ministry of Health for the nation-wide doctors’ strike last month (see news below). Doctors went on a nation-wide strike on 17th June, 2019 to express solidarity to the Kolkata doctors who were continuing strike to protest alleged attack on some junior doctors at NRS Medical College by some friends and relatives of a patient who died due to alleged medical negligence. Although PBT never condones physical violence on doctors and hospitals even in the event of genuine medical negligence, innocent patients should not be held at ransom by doctors’ strike that disrupts hospital services and brings endless pain, suffering and death to the ailing citizens.
Following a “doctors’ strike” in 2012 when a number of patients had died in Delhi, PBT filed a PIL against the IMA in the Supreme Court (SC W.P. No. 253/2012) when the Apex Court had categorically held that doctors should not go on strike under any condition. Despite such unequivocal observation from the Supreme Court, IMA showed no regard to the Apex Court’s judgment when they called another nation-wide doctors’ strike last month in a clearly contemptuous display against the Apex Court. PBT has filed this PIL this week to hold IMA and Health Ministry in contempt of the Apex Court. PBT president Dr. Kunal Saha is in India to plead for victims of medical negligence in different consumer courts and it is expected that he will appear before the Supreme Court to argue the “contempt” case in the next couple of weeks.
Outlook (July 10, 2019)
In a brazen display of shamelessness and gross abuse of power, Bengal chief minister Mamata Banerjee hailed the most tainted Indian physician, Dr. Sukumar Mukherjee, who was found guilty for gross medical negligence causing death of Anuradha Saha by the Supreme Court of India in the highest-ever malpractice in Indian medicolegal history, and gave him a “life-time achievement award” plus Rs. 2 lakh cash reward in a massive public ceremony to celebrate “Doctors’ Day” on Monday (July 1) (see picture below as Dr. Mukherjee sitting next to Ms. Mamata Banerjee). While holding Dr. Mukherjee responsible for Anuradha’s death with scathing criticism in a historic judgment in 2009 and awarding highest compensation in 2013, Apex Court also dubbed Dr. Mukherjee’s behavior as a man “unbecoming of a doctor” who has brought “great disrespect to the medical profession”. A case is currently pending in the Supreme Court against Mamata Banerjee (SLP Civil No. 33178/2012; Kunal Saha vs. Mamata Banerjee & Ors.) for her role in choosing Dr. Mukherjee as the “chief adviser” for the state government. Another PIL against the state-run Calcutta University will also come up for final hearing on 18th July for giving an honorary D.Lit. to Dr. Mukherjee in violation of Article 144 of Indian Constitution that has a mandate that all authorities, civil and judicial, must always act in aid of Supreme Court. Attempts to glorify a tainted doctor like Dr. Mukherjee who was held as a negligent and unethical doctor by the Apex Court undermines sanctity of the Supreme Court of India in the eyes of the ordinary people.
Mamata Banerjee-Sukumar Mukherjee (July 1, 2019)
After one week of continuous “doctors’ strike” that virtually crippled entire medical system in West Bengal and across India causing endless pain, suffering and even death of many patients, doctors have finally withdrawing the strike to resume regular hospital services on Tuesday. Following two separate PILs filed by PBT in 2006 and 2012, Supreme Court of India declared categorically that doctors have no right to go on “strike” for any reasons and medical council should take disciplinary action against any striking doctors. Without caring the Apex Court’s repeated directions, IMA and other powerful medical groups have frequently resort to “doctors’ strike” to settle their scores with the government and hospital authorities. While PBT has always denounced any attempt of physical violence against doctors, disruption of hospital services through strike by doctors is immoral, unethical and against the law.
IMA needs to appreciate the root cause of occasional physical violence against doctors by ordinary, peace-loving and law-abiding citizens after witnessing shocking death of their loved one due to gross medical negligence, real or perceived. A complete lack of trust on doctors for getting justice by the medical regulatory authority (medical council) and inherent flaws in the judicial system with endless delays in legal cases against the powerful medicos have resulted in a hopeless situation for the ordinary victims of medical negligence. Doctors’ strike is over for now, but who will pay for those victims who have already lost their loved ones due to this doctors’ strike. PBT is going to ask the court to direct the government compensate the victims. PBT is also planning to lodge a new “Contempt of court” case against the IMA for blatant violation of the Apex Court’s order. The peril of doctor-bashing and “doctors’ strike” are likely to recur again until a complete overhaul is done with the medical regulatory system to regain public trust on our healers.
Calcutta High Court has directed the West Bengal State to file a comprehensive report within 7 days as to what steps the government is taking to end the ongoing “doctors’ strike” in Kolkata that has crippled medical services in hospitals across the state for the past 5 days. The court has also reminded the doctors that they have taken Hippocratic Oath and should not join in any strike to deprive the patients from treatment. This order was passed on Friday (Jun 14) in response to a public interest litigation (PIL) filed by PBT that has also claimed that Supreme Court has already declared (in 2014 in response to another PIL filed by PBT in the Apex Court) that doctors have no right to go on a strike and if they do, disciplinary action must be taken against the striking doctors. PBT president Dr. Kunal Saha personally appeared on behalf of PBT to argue this PIL on Friday (see news below).
In the meantime, under pressure from ongoing strike and disrupted medical services, Bengal CM Mamata Banerjee has appointed four senior doctors headed by Dr. Sukumar Mukherjee, the grossly tainted and convicted by Supreme Court for Anuradha Saha’s death, to negotiate with the striking doctors. Ever since Apex Court found Dr. Mukherjee guilty for medical negligence causing death of Anuradha Saha and awarded highest compensation in Indian medical history in 2013, Banerjee government has been trying desperately to promote Dr. Mukherjee to repair his dented public image. This 85-year old Kolkata doctor was given the highest state award in medicine in 2014 (“Bangabhibushan”), awarded an honorary D.Lit. by the Calcutta University in 2018 and was also chosen as the “chief advisor” for the government. Separate cases are still pending against the Bengal government for gross abuse of power at the present moment.
India Today (Jun 15, 2019)
Zee News (Jun 15, 2019)
Biplab Pal, 32-year old only son of a poor mother, Bula Pal, died in 2014 from alleged botched gall-bladder surgery at R.G. Kar Medical College & Hospital in Kolkata. After the victim’s family came to PBT seeking help, a complaint was lodged before the W.B. State Consumer Forum. Court sent numerous notices to the premier government medical college and accused doctors (Drs. P. Mukherjee, S. Lahiri and Tanusree Chakraborty) over a period of 3-4 years but the accused doctors and R.G. Kar hospital simply ignored these notices and remained absolutely silent. Finally, a judgment was passed by the State Commission after going through the merit of the case holding the doctors/hospital guilty for medical negligence and allowed a compensation of Rs. 46 lakh.
Ironically, soon after the judgment was delivered and it was reported by the local media, R.G. Kar Medical College challenged the verdict before the National Consumer Forum (NCDRC) on the ground that natural justice was denied as the judgment was passed ex perte. NCDRC passed a final order last month remanding the case back to the State Commission to give a final opportunity to the accused doctors/hospital to file their defense. However, NCDRC also held that the accused chose not to appear before the State Commission despite receiving repeated notices and imposed a penalty of Rs. 2 lakh for their non-appearance including Rs. 1 lakh against R.G. Kar Hospital and Rs. 25,000/- against each of the 4 accused doctors. PBT president Dr. Kunal Saha personally appeared on behalf of the complainant-mother Mrs. Bula Pal and argued that even if the case is remanded back to the state commission, the deliberate and devious ploy on part of a government medical college/hospital and the accused doctors for their non-appearance only to harass the victim must be dealt with exemplary punishment. The Rs. 2 lakh penalty against the accused doctors/hospital for non-appearance in a medical negligence case is one of the highest award of this nature in Indian medico-legal parlance (see news below).
Statesman (Jun 8, 2019)
TOI (Jun 8, 2019)
PBT celebrated “Patients’ Day” (Rogi Divas) on Tuesday (May 28) with an open public forum in Kolkata where victims of medical negligence came from distant places to tell their personal unfortunate stories of death and injuries from negligent treatment by doctors and their long struggle to find justice due to the inherent flaws with long delays in the consumer courts and mostly corrupt medical councils that only try to shield their errant medical colleagues without caring for the lives of the vulnerable patients. “Rogi Divas” is celebrated every year on May 28, the day Anuradha Saha died during a social visit to India due to gross medical negligence by several senior Kolkata doctors including Dr. Sukumar Mukherjee who is still siting in top government position and AMRI hospital in Kolkata. “Rogi Divas” is to bring hope for all patients and victims of medical negligence and to spread public awareness about patients’ rights established under law including the right to obtain medical record with 72 hours and right to know about hospital cost before initiation of any treatment. PBT president, Dr. Kunal Saha, came to Kolkata from his permanent residence in USA and gave the key note lecture on this occasion. Dr. Saha is expected to argue before the consumer courts on behalf of several victims and to participate in several public interest litigations (PILs) before the High Courts and Supreme Court (read the news below).
Business Standard (May 29, 2019)
Like previous years, People and victims of “medical negligence” all over India will observe “Patients’ Day” (Rogi Divas) on Tuesday (May 28) in demand of medical justice for all and to establish fundamental rights for every patient. “Patients’ Day” has been observed every year to commemorate death of Anuradha Saha on this day in 1998 due to gross medical negligence of three so-called senior Kolkata doctors including Dr Sukumar Mukherjee. PBT will hold an open public forum on this day at 4 PM at Calcutta Press Club in Kolkata. PBT president Dr. Kunal Saha himself will be present at this program. All people and victims of medical negligence are cordially invited to join this program in Kolkata. For more information call 9831983670 or 9836706952.
According to Bloomberg news, at least 20% of candidates from all political parties running in this year’s election in India are either convicted or facing serious criminal charges including murder, rape and extortion. In a recent landmark judgment, a 5-judge Constitution bench of the Supreme Court of India has passed categorical direction that for any candidate facing criminal charges, respective political party must declare the criminal background of their candidate in “widely circulated newspapers” and must also give “wide publicity in the electronic media”. Apex Court further held that the criminal background of candidates must also be clearly declared on the website of the respective political party (Public Interest Foundation & Ors. vs. Union of India & Ors.; 2019 SCC 3, 224).
Has anybody seen any advertisements in any major newspaper or TV channel by any political party declaring that their candidate has a criminal background? The Trinamool-Congress (TMC) website has no information about the criminal background of the well-known figure of Mr. Madan Mitra, running in a by-election in Bhatpara (near Kolkata). Mr. Mitra is one of the primary accused in the highly publicized Saradha Chit Fund scam and was released on bail but still facing the serious criminal charges for alleged money laundering. But criminal candidates are plenty in all major political parties including BJP, Congress, CPM. After doing some research, PBT has compiled a list of 12 candidates from BJP/TMC/CPM/Congress contesting election in West Bengal and lodged a formal complaint with the Election Commission for taking action against the political parties for blatant violation of the election rules and directions issued by the Supreme Court of India (see PBT’s complaint letter below).
Election Commission Letter (May 16, 2019)
Maharashtra State Consumer Disputes Redressal Commission (MCDRC) has held Maruti Nursing Home, Platinum Hospital in Mulund, Mumbai and 4 doctors including Dr. Mihirgiril Goswami, Dr. Asafaque Dolare (Physician) and Dr. Satyen Mehta (Spine Surgeon) guilty for ethical violation and medical negligence causing death of 48-year old Mrs. Kamini Barkur following a botched surgery that eventually resulted in sepsis and awarded a total compensation of Rs. 19 lakh against the doctors/hospitals. The victim, a school teacher, was treated for cervical spondylitis for which a botched surgery was performed and the patient was also given wrong injection without proper attention to its contraindication, according to the reported judgment (see the entire judgment below).
While holding the doctors/hospitals guilty for medical negligence, the court has also come down heavily on the deliberate and unethical behaviors by the doctors/hospitals that allegedly concocted the treatment record and harassed the victim’s family from receiving the medical records as required by law. In this regard, the court has categorically held, “Failure to provide copy of medical record within 72 hours of the application itself is deficiency in service. Non maintenance of proper medical record is the act of omission”. Section 1.3 of MCI Code of Medical Ethics & Regulations has mandated that all doctors/hospitals must provide entire medical records to the patient-party within a maximum time of 3 days and that all doctors/hospitals must maintain medical records for at least a period of 3 years.
As promoted by PBT, all patients and patient-parties must always file a written request to the treating doctor/hospital to obtain medical records following discharge of the patient or unfortunate death from medical negligence. If any hospital/doctor refuses to provide the medical records after receiving a written request from the patient-party, they may be held guilty for “deficiency in service” as held by the Maharashtra Consumer Court.
Maharashtra Commission Judg. (May, 2019) failure to provide medical record deficiency of service – para 17
Last week, Calcutta High Court division bench of Chief Justice and Justice Arijit Banerjee tagged PBT’s public interest litigation (PIL) against lawyers’ strike with a pending case initiated by advocate groups against alleged police atrocity in a court in Howrah and fixed both cases for hearing on Wednesday (May 8). The entire court system in West Bengal has been completely shut down for the past two weeks as the agitating advocates started an indefinite strike in demand of immediate suspension of the accused police officers. The PIL was filed by PBT against an unlawful lawyers’ strike that crippled Calcutta High Court services for more than 2 months in 2018.
When Mr. Ranjit Sarkar, PBT executive committee member and authorized agent went to the chief justice’s court room this morning to plead in this PIL on behalf of PBT (since all advocates joined the ongoing lawyers’ strike), large number of rowdy advocates physically heckled him and prevented him from approaching the bench as both the cases were adjourned till May 13. PBT has issued a press statement condemning this shocking and unruly behavior by licensed advocates. Ordinary people and justice-seekers pay the ultimate price when our law-protectors become law-violators (see below). PBT is planning to move the Apex Court that has repeatedly declared that lawyers have no right to strike causing endless harm and misery to the ordinary litigants.
Press Release (May 8, 2019) Lawyers’ Strike
The entire justice delivery system in High Court and lower courts across West Bengal remains virtually closed bringing the hapless justice-seekers endless miseries as advocates continue an indefinite “cease-work” in protest of alleged attack by police in a court in Howrah more than two weeks ago. Many ongoing cases filed PBT including several public interest litigations (PILs) also suffer because of this extended cease-work/strike by the lawyers. While PBT strongly denounces any abuse of power by the police on the ordinary people or advocates, strike or cease-work by advocates on any ground is wrong because the ultimate price for disruption of regular court services are paid only by the defenseless people and justice-seekers.
PBT filed a PIL (W.P. No. 150/2018; Dr. Kunal Saha & Anr. vs. West Bengal Bar Council & Ors.) against a similar extended lawyers’ strike in 2018 (in demand of appointment of more judges) that also crippled judicial services in Calcutta High Court for more than 2 months. While the PIL is still pending for final adjudication, West Bengal Bar Council and other lawyers’ groups started the present indefinite cease-work/strike on ground of alleged police brutality. Although a PIL was initiated suo motu by Chief Justice of Calcutta HC to probe the alleged police atrocity, advocate-groups including WBBC started an indefinite cease-work despite call from the Chief Justice to the advocates not to abstain from work.
Taking up the pending PIL against “lawyers’ strike” filed by PBT, division bench of Chief Justice and Justice Mr. Arijit Banerjee heard PBT’s case on May 3 (represented by Mr. Ranjit Sarkar, PBT governing body member since no lawyer was willing to appear) and held that in view of the previous declaration by the Supreme Court reported in (2003) 2 SCC 45 that any “strike (by advocates) is contrary to the law“, our PIL will be jointly heard with the PIL against alleged police atrocity on May 8, 2019. It is expected to be a major legal showdown next week when two contrasting PILs (one against abuse of power by police and one against the unlawful lawyers’ strike) will be heard together by the Chief Justice court in Calcutta HC (see Calcutta HC Order below).
Cal HC Order, May 3, 2019 (W.P. No. 150:2018) Lawyers Strike
A division bench presided by Calcutta High Court Chief Justice T.B. Radhakrishnan has declared that Medical Council of India (MCI) and state medical councils (SMCs) must take appropriate disciplinary action if a complaint is lodged against any doctor associated with “doctors’ strike”. Supreme Court of India previously said that doctors have no right to go on “strike” under any condition in response to a PIL filed in 2012 by PBT. Echoing the Apex Court Judgment, Calcutta High Court directed last week that complaint must be lodged with the medical council against the striking doctors for violation of the law and appropriate disciplinary action must be taken by the medical council against the striking doctors.
This historic judgment was delivered after PBT filed another PIL against West Bengal Medical Council (WBMC) following a state-wide “doctors’ strike” called by the Indian Medical Association (IMA) (Bengal branch) in 2017 that crippled the healthcare services and brought endless pain, suffering and even some deaths of the ordinary patients. PBT moved the PIL after WBMC failed to take any disciplinary action against the striking doctors. While PBT always supports lawful demonstrations by doctors to express legitimate grievances of the medical community but doctors should not go on “strike” to settle their score against the government by holding the defenseless patients at ransom. (Read the Judgment below)
Cal HC Judgment (W.P. 3:2018) Doc Strike