Commission established under WBCE Act 2017 is entitled to adjudicate upon ‘deficiency in patient care service’ as well as to award compensation.
(West Bengal Clinical Establishments Act, 2017)
Case Law :
KOUSIK PAL VERSUS B.M. BIRLA HEART RESEARCH CENTRE & ORS. SC Decision on 19th December 2025
The facts
the appellant’s mother, namely Ms. Arati Pal was admitted at respondent-hospital for treatment, even during five days of her stay her situation did not improve. Subsequently she was referred to the Calcutta Medical Research Institute on 07th May, 2017. Recommendation of transfer was made by her consultant Dr. Shuvo Dutta, the discharge summary was prepared by Dr. Tanmoy Chakraborty, who described her as being in ‘stable condition’. She was shifted to the said hospital on 8th May 2017 in the early hours of the morning. Shortly thereafter, approximately 16 hours later, she passed away.
On 12th May 2017, the appellant filed a complaint against the respondent hospital stating
“Negligence in detection and causing delay in shifting the patient from the hospital. Not applying proper medication to the patient improper diagnosis and negligence and misguiding the patient party.”
Three points :
- Causing delay in shifting patient to other hospital
- Not applying proper medication
- Improper diagnosis
Notice was issued that the Commission would hear the matter.
Over some time, various documents were submitted including correspondence with and from the West Bengal Medical Council.
Observation of Commission :
Commission under the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017
By judgment and order dated 2nd February 2018, the Commission arrived at the following conclusions and findings :
First, that the lapse on part of Dr. Chakraborty, in describing the condition of the deceased as ‘stable’, which he, in his affidavit to the Commission, described as an error and “not a mere clerical mistake”.
Second, in view of the first proviso to sub-section 3 of Section 38 of the WBCE Act, 2017, they did not give any finding regarding this act of Dr. Chakraborty and whether it amounts to medical negligence
Third, Doctors and staff who participated in the process of decision making for the patient were not qualified as recognised by medical council
- Dr. Ashok Giri who was the Head of the Non-Invasive Department at the respondent-Hospital, unqualified to hold the positions and carry out the acts that they did. Dr. Giri it was held Post-Graduate Diploma in Clinical Cardiology undertaken by him from the Indira Gandhi National Open University is not recognized by the Medical Council of India or the West Bengal State Medical Council5 detrimental to patient care was completely unauthorized and illegal.’
- the course pursued by Ms. Chaitali Kundu, ECG Technician, were i.e., ‘Electro Cardiography Technique Course’ ,from ‘Society for School of Medical Technology, Kolkata’ both are not recognized by the State Medical Council.
With the result in a case of a patient suffering from Acute Coronary Syndrome, the most important procedures Echo-cardiogram and Echo- screening, was done by an unqualified doctor and a person claiming to be an echocardiography technician.
ORDER BY COMMISSION ( dated 2nd February 2018)
Now, considering the nature of lapses in the part of the Clinical Establishment, the degree of deficiency in service and irrational and unethical trade practice coupled with mental shock, pain, suffering and harassment, we are of the opinion that it would be fully justified if a sum of Rs.20lakh (rupees twenty lakh) is awarded as compensation to the complainant, the son of the service recipient, Mr. Kousik Pal..
PROCEDINGS BEFORE THE HIGH COURT
Hospital approached the High Court under Article 226 of the Constitution of India. The writ petition was dismissed for the reasons below : The learned Single Judge noted that while considering a complaint before it, the Commission is required to consider whether the clinical establishment has employed persons properly trained and qualified to do the concerned jobs and tasks. In doing so, the examination of educational qualifications would be entirely within its powers and Section 38(1)(iii) would not be a bar thereto
the Commission restricted itself to the deficiency in service and did not return any finding on medical negligence since that is strictly in the purview of the WBMC. The order of the Commission was not outside the jurisdiction
Decided on 24.9.2019
ORDER BY LEARNED DIVISION BENCH
However, vide the impugned judgment dated 15th December 2023, the learned Division Bench overruled the said findings, holding that the Commission did not have the jurisdiction to adjudicate issues of negligence and alleged deficiency in practice on the Legal issue ,jurisdiction of the Commission established by the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 and the State Medical Council
JUDGMENT BY SUPREME COURT
The Supreme Court recently held that the Commission established under West Bengal Clinical Establishments Act, 2017 is entitled to adjudicate upon ‘deficiency in patient care service’ as well as to award compensation.
“Section 38 categorically provides that medical negligence complaints would be dealt with by the State Medical Councils. The Division Bench held that the Commission was not entitled to give any finding in this regard. The Commission in its judgment expressly states that they are not entering into the question of negligence. We find that the Commission indeed had not. What it had done was consider a complaint of deficiency in patient care service and in order to ascertain whether there was a deficiency or not looked into the credentials of persons providing the service. The same is expressly permitted by this Section.”
A bench of Justices Sanjay Karol and Manoj Misra rejected the contention that the issues of ‘medical negligence’ and ‘deficiency in patient care service’ are so inextricably intertwined that the Commission cannot adjudicate upon ‘deficiency in service’ and only the State Medical Council can return a finding on ‘negligence’.
It observed that Section 36 of the WBCE Act, which provides for establishment of the Commission, contains the phrase ‘supervision’ and ‘supervision’ would necessarily include ensuring that all personnel within a clinical establishment are entitled by way of their education and certification to be employed there.
Commission given by its judgment dated 2nd February 2018, as confirmed by the learned Single Judge by judgment dated 24th September 2019 are restored.
The judgment of the Division Bench dated 15th December 2023 is set aside.
By Dr Prem Lata
