“If the public servants can be legally protected for the bonafide errors in their action, there is no reason to extend for not extending such a protection to the medical professionals”: Karnataka High Court

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JANUARY 2022 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.21688 OF 2009DR GANESH NAYAK S O.LATE H K NAYAK AGED ABOUT 66 YEARS R AT.NO.8 7TH CROSS JAKKASANDRA BLOCK KORAMANGALA BANGALORE 560 034. BY SRI. PALECANDA M CHINNAPPA FOR SMT. ANUPAMA HEBBAR ADVOCATE) 1. V SHAMANNA S O LATE VENKATASWAMAPPA AGED ABOUT 65 YEARS R 1 DIED ON 12 03 2013 REP BY HIS LR. 1(A) S NAGARAJ S O V SHAMANNA AGED ABOUT 59 YEARS NO.46 6TH CROSS CAMBRIDGE LAYOUT HALSOOR BENGALURU 560 008. AMENDED V.C.O DATED 14.01.2022. 2. KARNATAKA MEDICAL COUNCIL 70 2ND FLOOR VAIDYAKEEYA BHAVANA K R ROAD BASAVANAGUDI BANGALORE 560 004. REPRESENTED BY ITS PRESIDENT. BY SRI. P JAGANNATHAN ADVOCATE FOR R1(A) SRI. D S HOSMATH ADVOCATE FOR R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 07.05.2009 PASSED BY THE R2 IN ENQ.NO.7 OF 2008 VIDE ANNEX N. THIS PETITION COMING ON FOR ORDERS THROUGH VIDEO CONFERENCING THIS DAY THE COURT MADE THE FOLLOWING: A delinquent medical practitioner is knocking at the doors of Writ Court for assailing the order dated 7.5.2009 made by the second respondent Karnataka Medical Council a Statutory Body under the Indian Medical Council Act 1956 at Annexure N whereby he was administered the punishment of ‘warning’ for the alleged occupational lapse namely some procedural breach in accomplishing angioplasty to an aged & ailing lady. The Karnataka Medical Council has entered appearance through its Panel Counsel who remained absent when the matter was taken up for consideration twice i.e. in the morning and afternoon sessions the first respondent Complainant having died his son is permitted to come on record to prosecute the defence in the Writ Petition his counsel too is absent however the absence of the counsel cannot interdict the disposal of this decade old case on merits without unnecessarily prolonging its pendency. 3. Having heard learned counsel petitioner and having perused the bulky Petition Papers this court is inclined to grant indulgence in the matter for the following reasons: The vehement submission of learned counsel for the petitioner that the patient namely Smt.Yellamma was from multiple ailments including diabetes Neuropathy Nephropathy etc. and that she was being treated by several other doctors in different hospitals at different times is substantiated from the perusal of material on record however the allegation is made only against the petitioner and no explanation is offered as to why others who had treated her before were not even issued a show cause notice asking for their views this happens to be the first error apparent on the face of the record. b) The records reveal that the patient Smt.Yellamma was already aged 65 years and she was suffering from ailments natural to declining age of life it is a common knowledge that the evening of life some diseases come and stay with beings be it humans or other as inevitable guests an aged person suffering from ailments of the kind is visited by yet another disease more particularly affecting the functioning of heart the degree of mortality increases the records reveal that the patient had some significant problem with Cardio Vascular Vein since long and therefore she had undergone angiogram at the hands of the petitioner however the medical records including the impugned order prima facie show that the cause of death is the serious bacterial infection later contracted is huge time gap between accomplishment of angioplasty by the petitioner and the demise of the patient there is nothing on record to show that the alleged deficiency in professional service accelerated the process of health deterioration that eventually resulted into her death some positive evidentiary material was necessary to eliminate the possible nova causa interveniens therefore there is no reasonable connect or nexus between the medical procedure done by the petitioner and death of the patient vide ARUN KUMAR MANGLIK VS. CHIRAYU HEALTH AND MEDICARE PRIVATE LTD 2019SCC 401. It does not need research to show that more often than not the cases of medical negligence are launched recklessly by the patients and their relatives compensation culture which obtains in other jurisdictions is gradually gaining entry to the field of medical services in our society affecting a healthy relationship of doctor & patient it is tritely said "faith heals and not the medicine" faith here means the one reposed in the treating doctor courts have been nowadays observing that an unscrupulous section of the people are prone to use the slightest opportunity to sue the doctors and hospitals in the hope of making fast buck the motivation of people bringing actions for medical negligence are more complicated: some sue for money others sue for getting an acceptance of guilt some others do it to ensure that errors would not be repeated but a large chunk of cases does not involve bonafide claims cannot be much disputed the compensation culture be it truth or a myth in varying degrees has given rise to risk aversion medical professionals having a complaint made against them gather an impression that there is an unjustifiable attack on their professional integrity and reputation this may lead to a defensive response of the medicos ultimately resulting into enormous cost escalation in medical services if the public servants can be legally protected for the bonafide errors in their action there is no reason to extend for not extending such a protection to the medical professionals. It is said the realm of medicine is an ever growing branch of uncertain knowledge William Oslera Canadian Physician more than a century ago had said that medicine is a science of uncertainty and an art of probability" a host of un assessable factors entering the fray of diagnosis treatment the advancement of science & technology has to some extent reduced the level of such uncertainty and enhanced the degree of probability is also true however it cannot be disputed that the medical field is still in a fluid state a great Indian sage Ramakrishna Paramahamsa had said: "God laughs on two occasions. He laughs when the physician says to the patient’s mother ‘Don’t be afraid... I shall certainly cure your boy.’ God again laughs saying to Himself ‘I am going to take his life and this man says he will save it!..." Even if it is shown that a drug or a procedure did cause an injury it is difficult to ascertain whether this is because of the drug or the procedure for example it might be that the drug or the procedure is not defective if it provides a cure for the vast majority of people although it has undesirable consequences for a small number of people if a patient is of the unlucky few there will be difficulty in concluding that the drug or the procedure was actionably defective this is only to highlight the uncertain causation obtaining in the realm of medical liability this aspect ought to have animated the decision making process that culminated into the impugned order of penalty however that having not happened the impugned order suffers from another legal infirmity. e) Before parting with this case it needs to be observed that: medical and paramedical professionals are inevitable for a healthy society Vedic literature lauds medical practitioner and medicine as ‘vaidyo naaraayano harihi’ nearly meaning that a true doctor as a healer is God and that a true medicine is like the sacred water from the river Ganga during COVID pandemic how the doctors and paramedics served our society does not fade away from the public memory society has to gratefully appreciate the valuable services rendered by the medicos however at times being the victims the medicos are made to apologize to the attackers and this led to the State enacting the Prevention of Violence Against Doctors Medical Professionals and Medical Institutions Act 2018 having said all this this court hastens to add that the doctors is a profession wherein service ought to be the motto and not the profit as any professionals they too are not immuned from legal action for medical negligence as observed by the Apex Court in INDIAN MEDICAL ASSOCIATION VS. V.P.SHANTHA6 SCC 1. In the above circumstances this Writ Petition succeeds a Writ of Certiorari issues quashing the impugned order the petitioner doctor is absolved from the allegations. This court places on record its appreciation for the assistance rendered by Mr.Faiz Afsar Sait Law Clerk cum Research Assistant. Costs made easy. cbc SD JUDGE 

Summary: The issue whether medical professionals can be protected if they commit bonafide errors in their actions similar to public servants was decided upon by the a bench of Karnataka High Court consisting of  Justice Krishna S Dixit in the matters between Dr Ganesh Nayak v. V Shamanna WP No.21688 oF 2009 decided on 14.1 2022. The facts of the case are that by an order dated 7.5.2009, the Karnataka Medical Council had issued a warning to petitioner Dr. Ganesh Nayak for alleged professional malfeasance, namely certain procedural violations in performing angioplasty on a 65-year-old woman named Smt.Yellamma. This was challenged before the High Court. The counsel on behalf of the petitioners contended this patient has diabetes, neuropathy, nephropathy etc. It was stated that he suffered from various ailments and was treated at different times by different doctors in different hospitals, but the case was brought only to him. Others were not notified of the reason for the show cause. It was alleged that the patient was already 65 years old and suffered from the natural ailments of a shortened life expectancy, and in old age it was natural that some diseases came and remained as inevitable guests.The patient also suffered from a condition in which the functioning of the heart was affected, which increased the probability of death, furthermore the records show that the patient had a long-standing significant problem with the Cardio Vascular Vein and therefore, angiography was done by the petitioner. However, medical records show that the cause of death was a serious bacterial infection. It was later transmitted. There is a big time difference between Angioplasty performed by the petitioner and the death of the patient.There is nothing to indicate that the alleged lack of professional service resulted in death by accelerating deterioration of health. There is no connection or reasonable connection between these and the actions of the petitioner and the death of the patient. The counsel on behalf of the respondents contended that no counsel appeared for the respondents, however, the court noted that “absence of the counsel cannot interdict the disposal of this decade old case on merits, without unnecessarily prolonging its pendency.” The Karnataka High Court held that most cases of medical negligence are initiated recklessly by patients and their relatives in hopes of making quick money. The motivation for those suing for medical negligence is complex, with some suing for money, others sue to plead guilty and others do it to avoid repeating mistakes.The court said the “culture of compensation” acquired in other jurisdictions is increasingly entering the realm of medical services in our society, affecting a healthy doctor and patient relationship. How doctors and paramedics have served our society during the COVID pandemic will not be erased from the public’s memory, and the community should gratefully appreciate the valuable services provided by healthcare professionals.Doctors, like any other professional, is a profession that should be focused towards the motto of service, not profit, and they are obviously not exempted from legal action for medical negligence.