Academic degrees or professional experience- Which is more important legally? Dr. MC Gupta answers

M3 India Newsdesk Oct 10, 2019

Can you guess the right answer? Test your medicolegal knowledge by answering the question below!

Read on to find the right answer from Dr. MC Gupta, who also defines the scope of work for MBBS doctors, general surgeons, and DNB trained professionals.


Which is more important legally—Academic Degrees or professional experience?

ANSWER

1—The answer to this question is straightforward. In general, the academic degrees take precedence. Experience in a specialty can only follow academic qualifications in that specialty.

2—Let us look at this question from a purely legal point of view. Can a person not having an MBBS degree be allowed to practice modern medicine / allopathy? Of course, not. A person who might be an AYUSH practitioner but might be regularly practicing allopathy for a long time cannot plead that he may be allowed practice allopathy legally because he has a long experience in this area. It has been clearly so held by a three judge bench of the Supreme Court in Dr. Mukhtiar Chand & Ors vs The State Of Punjab & Ors on 8 October, 1998-- (JT 1998 (7) SC 78), AIR 1999, SC 468, (1998 (7) SCC 579)

3—There may be situations where specialist/super-specialist qualifications may exist in a discipline and a complaint may be made against a person for practicing a specialty in which he does not have a superspecialist qualification. Such complaints are usually made to the court/medical council by a patient or other specialists (directly or through a patient) who feel threatened by a possible professional competition. The complaint may be decided keeping in view the facts of the case. An important aspect would be whether sufficient number of qualified superspecialist doctors are available in that area.


4— An MBBS performing a Caesarean section

i)— The following is reproduced from agenda item no. 8 of the Ethics Committee of the MCI held on April 19 to 20, 2004:

[Q.No.1] A person having qualification of MBBS can perform:

(i) Caesarean section/operation

(ii) Hysterectomy/operation

(iii) Other general surgical procedures

Clarification: "A physician shall not claim to be a specialist unless he has special qualification in that branch.The special qualification means degree/diploma in the concerned specialty. However, this provision does not debar a doctor having proper, documented/certified, adequate training/exposure in an institution recognized by MCI thereby gaining/ competency and experience to work in any particular discipline/branch where he has got special interest."


ii)— Attention is drawn to the following guidelines issued by the AP Medical Council regarding surgery that may be performed by MBBS doctors.

What can an MBBS Doctor do?

  1. He can do all the minor surgical procedures for which he is trained in MBBS Course and Houseman Ship.
  2. He can do deliveries and its related procedures as trained.
  3. He can do national programmes like Tubectomies & Vasectomies.
  4. In emergencies if a qualified surgeon is not available in the near vicinity as a life savings measures he can do first aid and a surgical procedure based on his experience.
  5. He should not do elective major surgical procedures and the care should be taken to refer to a nearby hospital where a surgeon/gynaecologist available.

iii)— In Surinder Kumar (Laddi) and anr. V. Dr. Santosh Menon and Ors. 2000;(III) CPJ 517, the Punjab State Consumer Commission held that there is no bar against an MBBS performing a Caesarian section merely on the ground that the doctor does not have a qualification in Gynae-Obs.

NOTE—The decision whether an MBBS should routinely perform LSCS will depend upon actual circumstances. In a city where there is a large number of qualified Gyn-Obs specialists, the medical council is likely to hold that an MBBS should not routinely perform LSCS and may do so only in an emergency. On the other hand, if the place concerned is a remote/rural area where there are very few qualified Gyn-Obs specialists, the medical council is not likely to hold it against the MBBS doctor.


5— A general surgeon performing a Caesarean section

General surgeons sometimes carry out Caesarean sections and hysterectomies.

(i)--The following is reproduced from agenda item no. 8 of the Ethics Committee of the MCI held on April 19-20 April 2004:

[Answer to Q.No. 2. A person qualified as MBBS, MS (General Surgery) can perform

(i) Caesarean section operation

(ii) Hysterotomy/Hysterectomy

(iii) Tubectomy

Clarification:

“A physician shall not claim to be specialist unless he has special qualification in that branch.” The special qualification means degree/diploma in the concerned specialty. However, this provision does not debar a doctor having proper, documented/certified, adequate training/exposure in an institution recognized by MCI thereby gaining/ competency and experience to work in any particular discipline/branch where he has got special interest.”

ii)—The ground facts are a bit different. In one of my cases, where I am for the patient, the allegation against the doctor is that he, being a general surgeon, performed hysterectomy which he should not have done because he is not a specialist in Gyn-Obs. This allegation has been supported by a Medical Board when the issue was referred to a medical college for opinion. The matter is presently before the State Medical Council which is expected to support the opinion of the Medical Board. It is best to avoid stepping outside one’s specialty except in emergency or in remote / rural areas where subject experts are not easily available.


6—A DNB trained person, without DNB degree, practicing as a specialist

If a DNB trained doctor who failed in the examination performs a surgery, let us see in what way he may be legally challenged:

a—A complaint may be filed against him in a consumer court accusing him of medical negligence. If the complainant cannot prove negligence, the surgeon cannot be held negligent by the court simply because he did not pass in the DNB examination. It is true that, in the circumstances, the mind of the court may be subconsciously biased against the doctor but a good advocate should be able to argue successfully for him.

You should try to avoid committing medical negligence. The best way to do so, besides others, is to keep proper records. If you treat a patient properly, the courts would not be much bothered about whether you have passed part 2 DNB exam or not.

b—A complaint may be filed against him in a consumer court accusing him of having obtained consent by misrepresenting himself as a fully qualified surgeon having a proper degree. But if there is no medical negligence and no demonstrable damage or injury caused to the complainant, the court may hold the doctor only notionally guilty and may award only a mild compensation. To avoid this, he should not hold out as a fully qualified specialist having a proper PG degree.

c—A complaint may be filed against him with the police. If there is no medical negligence, the complaint will fail.

d—A complaint may be filed against him in the medical council for violation of regulation 7.20 of the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, which reads as follows:

“7.20 A Physician shall not claim to be specialist unless he has a special qualification in that branch.”

If he has been (falsely) holding out as a fully qualified surgeon having a proper degree, the council may find him guilty on this count and award him a mild punishment. If he has not been claiming to be a DNB and the medical council does not find any negligence in treatment, it is likely to let him off.

e—Let us look at it from another angle. He completes residency as a part of DNB course. The residency is over and he is unable to find any other job. He has no facilities to start practice as a GP. He needs to earn his bread. It is his fundamental right. A nursing home offers him attachment as a surgeon and he performs surgery with full necessary disclosure to the nursing home and the patient. He has bought indemnity insurance without making any false statements therein. He has committed no provable medical negligence. In such a situation, a good advocate should be able to successfully argue before any judicial or quasi-judicial authority that the doctor has not performed any illegal action. Even if some negligence is proved, the court is likely to award the full or major amount of compensation against the hospital and not the individual doctor working in the hospital.

f—Needless to say that in spite of all the above, it is in the best interest of the doctor to be cautious at every step and to get some certificate or diploma or degree in surgery as soon as possible.

 

Disclaimer- The views and opinions expressed in this article are those of the author's and do not necessarily reflect the official policy or position of M3 India.

Content from the writer has been directly replicated on the website. No edits have been made.

The writer, Dr. MC Gupta is a practising lawyer specialising in medical negligence cases. He also has an MD Medicine from AIIMS, Delhi where he also worked as a faculty member for 18 years, later working another 10 years as a Professor and Dean at National Institute of Health and Family Welfare, New Delhi, before pursuing law.

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