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Can the services of a lawyer be availed while defending a medicolegal case?

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Dr KK Aggarwal and Ms Ira Gupta    22 June 2018

The consumer Court and MCI, both allow lawyers to represent us. The DMC has been objecting to the same but if fought properly there is no reason for them to say no as DMC is a quasi-judicial body with civil court powers. Keep in mind that in DMC, one lawyer is always a member of the committee and his/her role is to understand the legal technical proceedings. Furthermore, the doctor and/or hospital are entitled to engage the services of a lawyer to represent them in the matter.

Lawyers are not allowed in Delhi Medical Council. As per extracts of the minutes of the Executive Committee dated 26.3.2010. “The Executive Committee noted the provision 8.2 of Indian Medical Council (Professional Conduct, Etiquette and Ethics), Regulations, 2002, wherein it is mentioned that, “upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader.”

The Executive Committee further noted provisions of Rule 32 of Delhi Medical Council Rules, which specify the procedure on receipt of complaint that “on the date of hearing or any other date to which hearing could be adjourned, it shall be obligatory on the parties to appear before the Council.”

DMC 32 (c): On the date of hearing or any other date to which hearing could be adjourned, it shall be obligatory on the parties to appear before the Council. Where the complainant fails to appear before the Council on such days, the Council may on its discretion either dismiss” the complaint for default or decide it on merits, where the opposite party fails to appear on the date of hearing, the Council may decide the complaint ex-parte. The Executive Committee observed that for proper and effective determination of issues of medical negligence, it is imperative that the parties involved with the case especially the doctors who have treated the patient should be examined in person. Permitting the parties to appear through pleader would defeat the whole purpose of enquiry. Hence, we do not see any merit in allowing parties to appear through pleaders.

MCI Act 8.2: It is made clear that any complaint with regard to professional misconduct can be brought before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of professional misconduct, the appropriate Medical Council would hold an enquiry and give opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical practitioner is found to be guilty of committing professional misconduct, the appropriate Medical Council may award such punishment as deemed necessary or may direct the removal altogether or for a specified period, from the register of the name of the delinquent registered practitioner. Deletion from the Register shall be widely publicized in local press as well as in the publications of different Medical Associations / Societies / Bodies.” Whenever there is a discrepancy between the Central and State Act, the Central Act will prevail. In the MCI Act, one can argue a case through a pleader, the same should be applicable to any State Medical Council also. Section 8.2 talks about the procedure for a State Medical Council also by naming “appropriate medical council.

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