BAMS Drs. could not be held medically negligent merely because they prescribed Allopathic medicines

1. Facts of the case in breif :

The case goes back to 2013/14. The Petitioners the BAMS-qualified Ayurvedic doctors, registered with the competent authority.
The Respondent-mother consulted them during her pregnancy for Gynaecological treatment and care.
During the treatment, the Petitioners prescribed various Allopathic medicines.
Subsequently, to the dismay of the Respondent, certain complications arose and the child did not survive.
The Respondent filed a consumer complaint alleging medical negligence, principally contending that BAMS doctors were not qualified to prescribe Allopathic medicines.

2. Findings of the District & State Commission

The District Commission held the doctors liable, principally on the reasoning that they were not qualified to prescribe Allopathic medicines.

It awarded ₹ 1,00,000 towards compensation & ₹ 5,000 the costs. The doctor couple challenged this before the Gujarat State Commission, but the State commission dismissed the appeal and confirmed the finding against the doctors.

3. the Ayurvedic doctors before NCDRC : the Doctors challnged the order of State commision before the NCDRC and it was contended by them that :

. a. they are legally entitled to presecibe allopathy medicines and they relied on Section 17(3)(B) of the Indian Medicine Central Council Act, 1970 alongwith the Central Council of Indian Medicine Notification dated 30.10.1996 and the Gujarat Government Circular dated 22.05.2003.

b. the Notifications relied upon by the doctors stated that institutionally qualified practitioners of Indian Systems of Medicine could practice Indian Systems of Medicine and Modern Medicine, including Surgery, Gynaecology and Obstetrics, based upon the training and teaching included in their recognised syllabus. It also referred to protection under Section 17(3) of the IMCC Act.

b. They further contended that their BAMS curriculum, which included teaching regarding commonly used Allopathic drugs and pharmacotherapeutics in Obstetrics and Gynaecology and they relied upon the Supreme Court judgment in th case of Dr. Mukhtiar Chand & Ors. v. State of Punjab & Ors., (1998) 7 SCC 579.

4. NCDRC Judgment :

a. The NCDRC set aside the findings of both the District Commission and the State Commission thereby giving solace to the Dr. Couple.

b. It was observed that the lower Fora had proceeded on the assumption that the Petitioners were not qualified to treat the patient, without properly examining the applicable Government Circulars and Notifications and it was further held that this assumption was erroneous and constituted a material irregularity.

c. The NCDRC Obsevred that there was no clinching evidence much less any expert opinion convincingly establishing negligence on the part of the Petitioners.

d. The NCDRC also obsrved that there was nothing to demonstrate that the Petitioners were required to refer the patient elsewhere for long-term treatment, particularly when the record showed that the patient had in fact been referred to another doctor during the course of treatment and that the patient was taking the medicines regularly.

e. At last, the NCDRC set aside Dsitrict and state Commission's orders and held that the Doctors cannot be held responsible for the medical negligence as alleged. However, because the patient had lost her child, the amount already deposited by the Petitioners pursuant to the interim order, together with accrued interest, was directed to be released to the Respondent as a measure of compensation, without treating it as compensation for proven medical negligence.

Conlcusion :

a. A finding of medical negligence against an Ayurvedic/BAMS practitioner cannot be based merely on the assumption that the practitioner was legally incompetent to prescribe Allopathic medicines, consdierign the applicable statutory provisions, Government notifications/circulars and the practitioner's recognised training, which must first be examined.

b. Further, negligence must be established by convincing evidence; the mere occurrence of an adverse outcome, including loss of a child, does not by itself establish medical negligence and the modern medicine practitioners have also been charged for medical negligence in many cases.

c. The NCDRC therefore distinguished between legal qualification/scope of practice and proof of medical negligence. In this case, the lower Fora had effectively treated the former as sufficient to establish the latter, which the NCDRC found unsustainable.

d. Recently in Maharashtra, the MARD/IMA called for a Strike against the decicision of Maha. Gvot. allowing homeopaths to rpactice modern medicines on the ground that allowing different medical systems to blend without strict, proven scientific boundaries endangers public. On the contrary the Supporters of the policy argue that allowing trained alternative practitioners to prescribe basic modern drugs helps fix the severe shortage of medical professionals in rural and remote areas. The Govt. Stand is also true as in many rural areas the reality is Allopaths don't find it suitable commercially to practice and thus the cross pathy is the only option that may be available. Many people from city areas much less rural areas find the medical services costly (here Drs billing is lesser compared to the total bill). This this vicious circle needs to be cracked.

e. From patient's perspective, they want to get their problmes solved, come hell or by high water. The stragne thing is, when everything is going good, the Doctor irrespective of the pathy, is the GOD and the moment something goes wrong, same Doctor is treated as the Devil.

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