In the Allahabad High Court
Petition
The petitioner Dr N Rastogi has filed this
writ petition challenging the order dated 16.01.2017 passed by MCI holding the
petitioner to be guilty of professional misconduct, and her name has been
directed to be removed from the State Medical register and Indian Medical
register for a period of one year.
That the specialised qualification DGO has been
incorrectly construed not to be based on a valid certificate. The Diploma was
obtained in 2007. There is no requirement of any additional registration of
recognized and registerable degrees. He cited a decision of the Apex Court in
case of Dr. B.L. Asawa Vs. State of Rajasthan and others, (1982) 2
Supreme Court Cases 55.
Defence
The petitioner was not holding any specialisation or
registration of the additional qualification of Diploma as claimed, which is
required as per Section 26 of the Indian Medical Council Act, 1956. The
petitioner got her registration in relation to the said certificate admitted
much later. On the date of the incident, which obviously happened in the year
2012, the petitioner was not holding any specialisation qualification as per
2002 Regulations and she was not entitled to claim to be a specialist as per
Regulation 7.20.
Judgment
MCI Ethics Committee on 30th June, 2016/29-30, November,
2016
Dr. Neetu Rastogi is MD from Ukraine i.e.
equivalent to MBBS. She did her DGO from College of Physician and Surgeon,
Mumbai, which is not a recognized and registerable degree in the State of
U.P. Thus, she is simply MBBS and not the specialist as she claimed.
Hence, she is guilty u/s 7.20 of the Indian Medical
Council (Professional Conduct, Ethiquette and Ethics) Regulations, 2002, “A
Physician shall not claim to be specialist unless he has a special
qualification in that branch.”
Claim of the petitioner being a Specialist on the strength of the
Diploma certificate also cannot be sustained on the ground that the
said Diploma stands derecognised w.e.f. 2.12.2009. It is correct that the
certificate of the petitioner is prior to that but at the same time, the
petitioner did not get this additional qualification registered when this
surgery was performed in the year 2012. The registration is stated to have been
obtained much later. Thus, the petitioner did not have any such
authority to claim the specilisation and this defect therefore negatives the
argument on behalf of the petitioner.
The judgment that has been relied upon by the learned counsel
for the petitioner in the case of Dr. B.L. Asawa (supra) is in relation to
recruitment to the post of lecturer in an University as per the terms and
conditions of the Act and Ordinances as was involved therein. Learned counsel
for the petitioner has stressed on the words used in paragraph 11 of the
judgment to urge that it has to be ipso facto regarded as a valid
diploma once it is contained in the Schedule of the Medical Council
of India. This argument cannot be accepted inasmuch as the
aforesaid judgment is not in relation to the registration of the additional
qualification as per Section 26 of the Medical Council Act and as
such, the said judgment does not come to the aid of the petitioner.
Judgement based on:
Who is a specialist? Two clauses in Medical Council
of India Act, viz., 7.20 and 1.42 have to be read together for this. DGO
should have been considered to be a valid specialisation degree.
- Clause 7.20 states: “A physician shall not claim to be a
specialist unless he has a special qualification in that
branch.”
i. This clause
is applicable only after 2003 and is not applicable for those who are
practicing before 2003.
ii. The
clause talks about special qualification and does not say anywhere MCI
recognized qualification.
iii. Also
clause 7.20 does not differentiate a specialist from a super specialist. Though
"The Postgraduate Medical Education Regulations 2000 (3) talks about a
super specialist and specialist “the Postgraduate Medical Education in broad specialities
shall be of three years duration in the case of degree course and two years in
the case of Diploma course after MBBS and in the case of super specialities the
duration shall be of three years after MD/MS with the exceptions wherever
indicated”.
- What is a special qualification? This has to be read in the Regulation
1.42, which states, “physicians shall display as suffix to
their names only recognized medical degrees or such
certificates/diplomas and memberships/honours which confer professional knowledge
or recognizes any exemplary qualification/achievements”. A
qualification is decided by the suffix allowed to the person.
a. The
clause is very clear. It adds “or such certificates/diplomas” only after the
recognized medical degrees. It means that any doctor who displays specialty as
suffix to his name, he or she can even put certificate/diploma, and
membership/honour as long as that confers professional knowledge or recognizes
any exemplary qualification/achievement. That means a person can suffix all
society memberships, medals received, special certificates, training or
diplomas. For example, if a person has received a certificate in IVF or a
diploma in cardiology, he or she can suffix that to their names. Regulations
1.42 and 7.20 read together clarify that a person cannot claim to be a
specialist unless he has a special qualification in that branch as mentioned in
clause 1.42.
b. The
word ‘or’ gives it a wider perspective.
c. Physician,
cardiologist, neonatologists etc. are also suffix.
- IMC Act: 26 “1 If any person whose name is entered in the Indian
Medical Register obtains any title, diploma or other qualification for
proficiency in sanitary science, public health or medicine which is a
recognized medical qualification, he shall, on
application made in this behalf in the prescribed manner be entitled to
have any entry stating such other title, diploma or other qualification
made against his name in the Indian medical register either in substitution
for or in addition to any entry previously made. The entries in
respect of any such person in a State Medical Register shall be
altered in accordance with the alterations made in the Indian
Medical Register.” “Shall” means mandatory.
IMC Act: 33. The council may,
with the previous sanction of the Central Government, make regulations
generally to carry out the purposes of this Act…. (m: the standards of
professional conduct and etiquette and code of ethics to be observed by medical
practitioners; and (m a the modalities for conducting screening tests under
sub-section (4A), and under the proviso to sub-section (4B), and for issuing
eligibility certificate under sub-section (4B), of section 13.
- Under P&DT Act, an ultrasonologist is defined as “(3) (1) Any
person having adequate space and being or employing: (a)
Gynaecologist having experience of performing at least 20 procedures
in chorionic villi aspirations per vagina or per abdomen, chorionic villi
biopsy, amniocentesis, cordocentesis foetoscopy, foetal skin or organ
biopsy or foetal blood sampling etc. under supervision of an experienced
gynaecologist in these fields, or a Sonologist, Imaging Specialist,
Radiologist or Registered Medical Practitioner having Post Graduate degree
or diploma or six months training or one year experience in sonography or
image scanning, or. (c) A medical geneticist: may set
up a genetic clinic/ultrasound clinic/imaging centre.
- Under MTP Act, a gynecologist is defined as: The medical termination
of pregnancy act, 1971 (Act No. 34 of 1971), (10th August 1971), An Act to
provide for the termination of certain pregnancies by registered Medical
Practitioners and for matters connected therewith or incidental thereto.
Be it enacted by Parliament in the Twenty-second Year of the Republic of
India as follows: 2D: (d) “registered medical practitioner” means a
medical practitioner who possesses any recognized medical qualification as
defined in clause (h) of section 2 of the Indian Medical Council Act,
1956, (102 of 1956), whose name has been entered in a State Medical
Register and who has such experience or training in gynaecology and
obstetrics as may be prescribed by rules made under this Act.
- Rule 4 defines the specialization: Experience and training under
clause (d) of Section 2:- For the purpose of clause (d) of section (2), a
registered medical practitioner shall have one or more of the following
experience or training in gynaecology and obstetrics, namely; (a) In
the case of a medical practitioner, who was registered in a State Medical
Register immediately before the commencement of the Act, experience in the
practice of gynaecology and obstetrics for a period of not less than three
years; (b) in the case of a medical practitioner, who is registered
in a State Medical Register:- (i) If he has completed six months of
house surgency in gynaecology and obstetrics; or (ii) unless the following
facilities are provided therein, if he had experience at any hospital for
a period of not less than one year in the practice of obstetrics and
gynaecology ; or (b) if he has assisted a registered medical practitioner
in the performance of twenty-five cases of medical termination of
pregnancy of which at least five have been performed independently,
in a hospital established or maintained or a training institute approved
for this purpose by the government.
- Under PNDT Act 2003: Who is a specialist in genetics
counseling? The qualifications of the employees, the requirement
of equipment etc. for a Genetic Counseling Centre, Genetic Laboratory,
Genetic Clinic, Ultrasound Clinic and Imaging Centre shall be as under: 1)
Any person being or employing i) a gynaecologist or a paediatrician having
six months experience or four weeks training in genetic counseling or
(ii) a medical geneticists, having adequate space and educational
charts/models/equipments for carrying out genetic counselling may set up a
genetic counselling center and get it registered as a genetic counselling
center.
- DNB for family medicine is not recognized by MCI yet a person is a
family medicine consultant.
- DNB in maternal and child health is not recognized by MCI yet people
can suffix as DNB maternal and child health and practice as specialist in
that specialty.
- PGDM, PGDMCH are IGNOU courses and not recognized by MCI yet a person
writes as specialist in that specialty.
- Dip Card is a diploma in Cardiology recognized by IGNOU only and once
a person has done Dip Card he or she is practicing as a cardiologist.
- MRCP, FRCS, FRCR are not recognized by MCI and yet they are
specialists and practice.
- The Indian Armed Forces has a well-defined modality of how doctors
would be classified as specialists and super specialists as per their TGC
(Training, Grading & Certification) Rules: Graded Specialists
: After obtaining PG degree ; Classified Specialists ( eq. to super
specialists) : 4-5 yrs. Experience after PG or Grading + 1 months of
satisfactory observatory working under a Sr. Advisor. You are also
classified as a Sub Specialist for which you are granted 2 years study
leave and have to acquire training (not qualifications) in a reputed
institute of that Sub specialty.
- The eligibility for being a medical teacher in a particular
super-speciality is also based on the above as per MCI Act.
- MCI does not recognise any Fellowship from any institution from anywhere in
the world, including India.
- There are so many courses run by Annamalai University that are
definitely not recognised by MCI. If one has to use only MCI
recognised degrees, then how has MCI allowed a Deemed University like
Annamalai to run these courses while not recognising them? Contradictory,
isn't it?
- MCI does not differentiate between specialist and super specialist as
far as working is concerned.
Minutes of the meeting of the Ethics Committee held on
the 11th & 12th December, 2008 at 10.30 a.m: Application by Sh. Amit
Karkhanis for seeking information under RTI Act, 2005 to be read with regards
to application by Sh. Amit Karkhanis for seeking information under RTI Act,
2005.
The Ethics Committee considered the matter with regards
to application by Sh. Amit Karkhanis for seeking information under RTI Act,
2005 and decided to answer as under:
Q.(i) I want to know whether a medical doctor registered
with you with additional qualification of MD (Gynecology) / DNB (Gynecology)
can perform gynecology related sonography / endoscopic surgery?
Ans.: As far as the work relating to the Specialty of
Gynecology is concerned – yes.
Q.(ii) What is the difference in the scope of work of
MD(General Medicine) and those possessing qualifications such as
DM(Cardiology)?
Ans.: No specific information is available in the
Council’s Regulations enacted under IMC Act, 1956.
- MCI has limited specialists and super specialist courses in medical
and surgical fields. One is not negligent in practicing a field in
India in which no such recognized course is available. For example
no course is available in noninvasive cardiology, preventive cardiology,
cardiodiabetology, and echocardiography. A person who has acquired
proficiency in any of the above either by foreign training or experience
over a period of time will be justifying in writing a specialist in that
field
(Dr Neetu Rastogi vs Union of India and
4 Ors; WP 4369 of 2017, 31/01/2017)
My views
Anybody who has a valid recognized medical degree or has
certificates/diplomas, memberships/honours, which the Council feels that they
confer professional knowledge or recognizes any exemplary
qualification/achievements can practice and be called as a specialist or super
specialist.
Examples
- After 2003 when the MCI Ethics Regulations Act was enacted, MD
Medicine cannot write Cardiologist but can write Physician and
Cardiologist, or Physician and Gastroenterologist etc. Same is true for MS
Surgery or MD Gynaecology.
- MD Gynaecology can write Onco Gynaecologist if she has a certificate
or an experience in the field
- ENT people can write based on their experience e.g. specialist in
Cochlear transplants etc
- MD pathologist can write histopathologist, cytologist, onco-cytologist
depending on training or certificate.
Dr KK Aggarwal
Padma Shri Awardee
President Elect Confederation of
Medical Associations in Asia and Oceania
(CMAAO)
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of
India
Past National President
IMA
