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
A new public interest litigation (PIL) was filed in Calcutta High Court seeking ban on publishing any picture of Mamata Banerjee, Bengal chief minister or any other minister in paid government advertisements as Supreme Court of India had previously directed that except for the President and Prime Minister, no advertisements by the government may publish any picture of chief minister and other ministers. Unfortunately, despite such categorical direction from the Apex Court, large number of advertisements are published in newspapers and TV on a daily basis with prominent picture of the CM and other ministers that implicitly, if not explicitly, promote the ruling political party at taxpayers’ expense. These brazen advertisements published daily by the ruling government clearly violates Supreme Court’s direction and undermines sanctity of the highest court of the land. While PBT remains as a completely neutral non-political entity and other state ministers may also be involved in similar gross abuse of public fund in promoting political agenda of other political parties, this new PIL was filed in Calcutta High Court against the wrongful action by the Trinomul-Congress (TMC) led government in West Bengal. This PIL is likely to come up for hearing on Friday (March 29).
Anyone browsing through the IMA website today will come across on their home page (www.ima-india.org) an enormous picture of the newly elected IMA president and Trinomul-congress Rajya Sabha member, Dr. Santanu Sen standing close next to a smiling ex-MCI president and biggest medical mafia in Indian medicine (as dubbed by India Today), Dr. Ketan Desai (see the pic below). Ketan Desai, perhaps the most well-known name in Indian medicine (for all the wrong reasons) was first removed from his post of MCI president in 2001 by Delhi High Court that held MCI as a “den of corruption”.
Although Desai managed to recapture the post of MCI president again in 2009 using influence through his medical cronies and political connection, he was caught red-handed by CBI through a sting operation while taking bribe from a private medical college in 2010. After spending almost 7 months in jail, Desai was eventually released on bail and recently, criminal charges against him were dropped by CBI on a purely technical ground for lack of “sanction” (under section 197 CrPC). So, Desai became a free man last year without ever facing trial to decide his case on merit. PBT is planning to take possible legal action against CBI and Desai for this colossal failure in the justice delivery system.
Nevertheless, it is shocking to find Ketan Desai back again at the helm of Indian medicine as the newly elected IMA president is shamelessly and openly patronizing the most disgraced medical leader in Indian medical history as evident from the overt glorification of Ketan Desai on the IMA home page. It may not be too surprising to find our devious medical leaders bending backwards to promote the corrupt MCI ex-president, but what about the other almost ten lakhs ordinary Indian doctors many of whom may still maintain honest characters. How long these “good” Indian doctors can afford to remain silent against this atrocious attempt by IMA to glorify and reestablish a corrupt medical man like Ketan Desai?
British Medical Journal (BMJ), one of the premier international medical journals in the world, just published an article holding PBT president, Dr. Kunal Saha, as “Role Model” for his long-drawn selfless fight against medical negligence and pervasive healthcare corruption in India (see article below). As BMJ has reported, the relentless battle against medical corruption in India by Dr. Saha started with the tragic death of his young wife (Anuradha Saha) from gross medical negligence by several senior doctors during a social visit to India in 1998. Although Supreme Court of India eventually held these doctors and AMRI Hospital in Kolkata guilty for causing Anuradha’s death and awarded highest-ever compensation (Rs. 11.5 crore) in 2013, Dr. Saha has continued his fight to cleanse the rot in Indian medicine and helping the hapless victims of medical negligence in India through the charitable organization, People for Better Treatment (PBT), that he established in 2001.
Although permanently settled in USA for the past almost 30 years, Dr. Saha frequently visits India (at least twice each year) and appears to argue in courts on behalf of the victims of medical negligence and also public interest litigations (PILs) against medical corruption. One of the major aspects in these legal fights has been Dr. Saha’s relentless attempts to bring Dr. Ketan Desai, ex-MCI president and biggest medical mafia in Indian medical history, to justice. Dr. Desai was caught red-handed by the CBI in 2010 for taking bribe from a private medical college but recently, all criminal cases against Desai were dropped by the CBI on a flimsy technical ground. PBT and Dr. Saha are in the process to move the court to bring justice to Dr. Desai and the arbitrary action by the CBI.
BMJ – Role Model (March, 2019)
Calcutta High Court Justice Tapabrata Chakraborty issued show-cause notice on Friday (Jan. 18) against West Bengal Medical Council (WBMC) Registrar and Returning Officer, Mr. Manas Chakraborty, in response to a contempt of court petition filed by PBT president, Dr. Kunal Saha, for disobeying court’s earlier order (see report in Statesman below). In August 2018, HC had directed WBMC to print new ballots with Dr. Saha as a candidate for election of new WBMC members as the 5-year term of the present members expired last November.
Dr. Saha had alleged that WBMC had rejected Dr. Saha’s application to contest in the council election because of personal animosity on the flimsy ground that Dr. Saha had written his name in the nomination paper as Kunal Saha and not as “Saha Kunal” which is the way it is written on Dr. Saha’s registration certificate. Calcutta HC agreed with Dr. Saha and held that there was no reason to dismiss Dr. Saha’s nomination paper on this obvious anomaly with his name and directed the Returning Officer (Registrar) to print new ballots with Dr. Saha’s name as a candidate. Interestingly, no election for new WBMC was held till now as the matter has been stayed by another bench of Calcutta HC. While there is wide-spread hostility among the members of the medical community toward PBT and Dr. Saha for their role in helping the victims of “medical negligence” in India, Dr. Saha contested in the council election last time to stem the corruption in the election process that has been rigged in the past by influential doctors linked with the ruling political party. The present WBMC president, Dr. Nirmal Maji, is a sitting MLA for the ruling TMC party in West Bengal who was promoted recently to be the Minister of Labour by Bengal CM, Mamata Banerjee, even after he was indicted for serious criminal offense including extortion of funds from the medical council (IPC Section 409).
Statesman (Jan. 19, 2019)
Dr. Nirmal Maji, president of West Bengal Medical Council (WBMC) and a prominent political-medical leader in West Bengal who was recently promoted by Bengal CM Mamata Banerjee to be the state minister of labor, surrendered on Tuesday (Jan. 8) before the Special Judge (for MLAs/MPs), Mr. Somnath Chakraborty, charged with serious criminal allegations under Indian Penal Code (IPC) including Section 409 (“breach of trust by a public servant”) and Section 463 (“forgery”). Later, he was released on bail with the next day of hearing fixed on 2nd March, 2019 (see news below).
This shocking criminal case for alleged extortion of public funds from the office of the WBMC by Dr. Maji to pay for his personal legal expenses was filed by PBT president, Dr. Kunal Saha after PBT was able to obtain serious incriminating evidences against Dr. Maji. Dr. Maji is already facing another criminal case for “defamation” (IPC Section 500) which is ready to go to a trial. Punishment under IPC Section 409 may be imprisonment that may extend up to 10 years. PBT has filed a memorandum with Bengal CM urging her to remove Dr. Maji from the post of WBMC president and minister of labor until he is exonerated from these serious criminal allegations.
Statesman (Jan. 9, 2019)
Telegraph (Jan. 9, 2019)
Eighteenth anniversary of PBT will be celebrated at 3 PM on Sunday (December 30) at Rotary Sadan in Kolkata (next to Nehru Children’s Museum) where victims of alleged medical negligence will tell their stories of maltreatment and struggle for getting medical justice. An open discussion will be held by distinguished guests along with PBT president, Dr. Kunal Saha, who has come, like every past years, to attend this momentous occasion.
Following day, i.e. Monday (December 31) at 1 PM a massive public protest rally has been organized in front of West Bengal Medical Council (WBMC) office at 1B-196, Sector III, Salt Lake, Kolkata 700106. This public demonstration will be held in demand of speedy justice against negligent doctors and also seeking immediate removal of WBMC president and local leader of the ruling TMC party, Dr. Nirmal Maji, in view of his recent criminal indictment for alleged money laundering from the WBMC office.
All conscientious citizens, victims of medical negligence and “honest” doctors are cordially invited to join us for these two major movements on December 30 and 31st. For more information, contact PBT secretary, Ms. Ratna Ghosh (Tel: 9836706952) or PBV vice-president, Mr. Mihir Banerjee (Tel: 9831983670).
Controversial medical leader, Dr. Nirmal Maji, a sitting MLA for the ruling TMC party and president of West Bengal Medical Council (WBMC), was recently elevated to the post of State Minister in the Department of Labor by Bengal CM, Mamata Banerjee. Over the years, Dr. Maji has been center of numerous controversies including using his influence to orchestrate dialysis of his pet dog at SSKM Hospital, a premier super-speciality government medical center for humans in Kolkata. But earlier this month, a Special Court for MLAs/MPs took cognizance of several criminal charges including “criminal breach of trust by a public servant” (IPC Section 409) and “forgery” (IPC Section 463/464) and directed Dr. Maji to surrender before the court on 5th January, 2019 (see copy of Order below).
These criminal charges were brought against Dr. Maji by Dr. Kunal Saha on behalf of PBT after PBT obtained documents showing that Dr. Maji was using funds from the medical council by hiring lawyers to defend in personal litigation against him which clearly violates IPC Section 409 for criminal breach of trust by a public servant that calls for a non-bailable warrant with a maximum imprisonment of 10 years if convicted. It is shocking that despite being criminally indicted for such serious charges by the Special Court, Bengal chief minister rewarded Dr. Maji by offering him to the coveted post of a State Minister. PBT sent an urgent Memorandum to Mamata Banerjee on Saturday urging her to remove Dr. Maji from the post of a State Minister until he is exonerated from the serious criminal charges in order to restore public trust and confidence in governance of West Bengal.
Barasat Court Order (Dec, 2018) Maji Cri 409
In a shocking and unbelievable development, a large group of advocates harassed PBT president, Dr. Kunal Saha and threatened him with dire consequences if he does not stop from arguing cases on behalf of victims of medical negligence. Ever since Dr. Saha personally argued and won a historic verdict and highest-ever compensation from Supreme Court for the wrongful death of his wife, Anuradha Saha, he has been appearing before the National, State and District consumer forums coming all the way from his permanent residence in USA to argue cases on behalf of many alleged victims of medical negligence. Dr. Saha came to India last week and appeared before the W.B. State Consumer Forum today to argue for a victim, Abhijit Banik, whose young wife died from alleged medical negligence following delivery of a child.
For some reasons, the bench presided by state forum president, Justice Mr. Ishan Chandra Das, refused to allow Dr. Saha to argue on behalf of the victim. Even more shockingly, a large group of lawyers also started to shout against Dr. Saha and PBT. They chased Dr. Saha out of the courtroom and threatened him with dire consequence and other abusive languages. Finally, police escorted Dr. Saha from the court premise. Later, a formal complaint was lodged with the local police station seeking a thorough investigation and appropriate action against the rowdy lawyers who were involved in this deplorable incidence. Law clearly provides that non-advocate and/or NGO can plead cases on behalf of the victims. In 2012, PBT moved a contempt petition against National Consumer Forum (NCDRC) for not framing necessary rules to allow non-advocates to argue on behalf of ordinary people including victims of medical negligence after Apex Court gave specific direction in this regard. PBT will move the higher courts against today’s decision by the W.B. Consumer Forum not to allow Dr. Saha to argue medical negligence cases.
In a major development in our battle against corruption, judge in a Special Court in Barasat for MPs/MLAs took cognizance of several serious criminal charges including “criminal breach of trust by public servant” (IPC Section 409) and “forgery” (IPC Section 463) against Dr. Nirmal Maji, influential MLA of the ruling TMC party and president of West Bengal Medical Council (WBMC), and issued notice today directing him to appear in court on January 5, 2019. PBT president, Dr. Kunal Saha, lodged this criminal complaint against Dr. Maji last August after obtaining documents showing that Dr. Maji abused his position and utilized public funds from the medical council to pay for his personal legal expenses. Section 409 of Indian Penal Code (IPC) carries an imprisonment of 10 years for criminal breach of trust by any public servant. Dr. Saha’s complaint has alleged that Dr. Maji being the head of WBMC used his official position to pay for attorney fees in his personal legal case in clear violation of legal provision. A court in Salt Lake, Kolkata (within WBMC jurisdiction) already examined Dr. Saha and PBT secretary, Ms. Ratna Ghosh, during Dr. Saha’s last trip to India. Dr. Saha’s lawyer informed the court today that Dr. Saha plans to visit India in December-January to participate in further hearing on this historic criminal case against a sitting medical council president.
The CBI Court in Patiala House, New Delhi recently dropped all criminal charges against ex-MCI president, Dr. Ketan Desai, after CBI lawyers submitted that “sanction” (under Section 197 CrPC) to prosecute Dr. Desai was denied by the Gujarat government. As well known across India, Desai was caught red-handed by CBI in 2010 allegedly for taking a huge bribe from a private medical college in exchange of granting MCI recognition to admit MBBS students. While Desai was in jail for almost 7 months before he was released on bail, MCI was dissolved under unrelenting public pressure. Almost 8 years later, all charges for corruption against Desai have now been dropped by CBI before the start of the trial on a flimsy and technical ground of “sanction” bringing utter shock to the entire medical community.
In order to look into this apparent dubious behavior by the CBI prosecutors, PBT had sought pertinent information (under RTI Act) in relation to CBI’s stance to drop all charges against Dr. Desai. The information sought included simple questions like why a routine “sanction” was denied by the government and why Gujarat government was approached to seek “sanction” instead of the central government as Desai was arrested as the MCI president and not as a government employee in Gujarat. Incredibly, CBI has refused to provide any answer to PBT’s questions with a bogus claim that RTI Act is “not applicable” to the CBI under Section 24 even though the said Act has categorically stated that CBI must provide information under RTI Act if the information pertains to “allegations of corruption” (see CBI response below). Of course, the criminal case CBI filed against Desai was exclusively related to “corruption”. PBT has already lodged an appeal with the Central Information Commission (CIC) against this blatantly biased denial of information under RTI Act. But a bigger question is why CBI is blatantly distorting truth to protect information about Desai? Is the BJP government trying to thwart justice from the most corrupt man in Indian medical history?
CBI-RTI Response- Ketan Desai (Oct, 2018)
Medical Council of India (MCI) was dissolved last month and replaced with a selected group of 7 members Board of Governors (BOG) headed by Dr. Vinod K. Paul allegedly to stop corruption and to pave the way for the proposed National Health Commission (NMC) Bill. But nothing really has changed since BOG has taken over the past several weeks except that MCI website has remained completely defunct denying ordinary citizens of vital healthcare information and the alleged corruption inside MCI has certainly been replaced by sheer anarchy at the expense of the countless victims of medical negligence. PBT has received complaints from victims whose complaints against the delinquent doctors (under section 8.7 and 8.8 of MCI Code of Ethics Regulations, 2002) were scheduled for hearing by the MCI Ethics Committee long before MCI was dissolved. These unfortunate victims never received any information from MCI or BOG that their pre-scheduled hearings were cancelled or postponed due to the evolving situation. Most of these innocent justice-seekers were kept completely in dark until they traveled to the MCI office in Delhi from all parts of India only to find closed doors. It is reported that even the handful of MCI employees who are still there are not working as only few members BOG only attending inside MCI.
We can appreciate the difficulty that the BOG may be facing during this transition period but nothing can be more important for the BOG members to inform the hapless victims who are compelled to travel long distance only in search of medical justice that they should not come to MCI office as their pre-scheduled hearings have been postponed/cancelled. PBT has written to the BOG chairman, Dr. Vinod K. Paul, seeking his immediate intervention to stop this outrageous situation and to compensate the victims who have already attended MCI office on the day of their pre-scheduled hearing. PBT encourages all victims and justice-seekers who have attended or will attend MCI to participate in the Ethics Committee hearings to contact PBT office with their grievances as PBT intends to bring a new public interest litigation (PIL) on this issue if BOG fails to take immediate and appropriate measures.