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 ba
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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.
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.
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.”
Claimof 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”.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. DNB for family medicine is not recognized by MCI yet a person is a family medicine consultant.
9. 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.
10. PGDM, PGDMCH are IGNOU courses and not recognized by MCI yet a person writes as specialist in that specialty.
11. 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.
12. MRCP, FRCS, FRCR are not recognized by MCI and yet they are specialists and practice.
13. 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.
14. The eligibility for being a medical teacher in a particular super-speciality is also based on the above as per MCI Act.
15. MCI does not recognise any Fellowship from any institution from anywhere in the world, including India.
16. 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, isnt it?
17. 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.
18. 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)
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.
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)