A wrong medical certificate by a clinic causing loss of job opportunity in Saudi Arabia; Deficiency in services held
The Kerala State Consumer Dispute Redressal Commission is currently addressing a significant case that has garnered attention due to the far-reaching implications of the central law known as the Clinical Establishments (Registration and Regulation) Act, 2010. In this case, Manoj Chacko’s employment prospects in Saudi Arabia were negatively impacted when Gulshan Medicare, a clinic operating under the regulations of the aforementioned law, issued an incorrect “X-RAY UNFIT” certificate to him. The Kerala State Consumer Dispute Redressal Commission upheld the judgment of the District Commission, which found Gulshan Medicare to be deficient in services and involved in unfair business practices.
Dr Prem Lata, Legal Head VOICE
The Clinical Establishments (Registration and Regulation) Act, 2010
“Clinical establishment” means— (i) a hospital, maternity home, nursing home, dispensary, clinic, sanatorium or an institution by whatever name called that offers services, facilities requiring diagnosis, treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicine established and administered or maintained by any person or body of persons, whether incorporated or not; or
(ii) a place established as an independent entity or part of an establishment referred to in sub-clause
(iii), in connection with the diagnosis or treatment of diseases where pathological, bacteriological, genetic, radiological, chemical, biological investigations or other diagnostic or investigative services with the aid of laboratory or other medical equipment, are usually carried on, established and administered or maintained by any person or body of persons, whether incorporated or not.
Gulshan Medicare V/S Manoj Chacko
First Appeal No a/116/2017 decided on 1.12.2022
Facts leading to dispute
On August 21, 2013, the complainant, who worked in Saudi Arabia, returned on a 15-day leave. A minor delay in his return led to the issuance of a second visa, and he was now required to get a medical certificate following a check-up. In accordance with Gulf Cooperation Council regulations, he got in touch with Gulshan Medicare, a medical facility permitted to do the required medical examinations for people applying for jobs in GCC nations.
A check-up was conducted on November 21, 2013, for a fee of Rs. 4200, and an x-ray revealed right upper zone fibrosis, which prevents entry into Gulf countries. A licenced radiologist who was stationed in Bombay and was unavailable to sign the report nevertheless issued the chest x-ray report. The complainant sought a second opinion from Dr. P. Sukumaran, a pulmonologist at Bharat Hospital Kottayam, after determining that the report was inappropriate. He attested that there is no clinical or radiological indication of an active respiratory ailment in the complainant. The complainant asked to examine the report, and his employer also asked to revisit the situation, but both requests were turned down. Complainant filed consumer complaint before District Commission Ernakulum alleging clinic issued unfit certificate with ulterior motive to help getting visa to someone else.
- Certificate does not contain signature and seal of doctor. Remarks on certificate shows “x-ray unfit”.
- Job of complainant was written as plumber whereas he was a male nurse.
- Certificate was not issued as per guidelines prescribed in act 2010 minimum standard of facilities and services to be provided by medical imaging services (Diagnostic Centre).
- Qualified doctor /radiologist was not available at the centre when test was conducted, they were stationed elsewhere and report was issued but not signed.
- A crucial document like medical report while giving negative or unfit certificate needs to be carefully checked. In the present case, even other opinion or employers request to review was turned down by the clinic.
On November 13, 2016, the District Consumer Commission issued an order declaring the clinic to be lacking in services and imposed a compensation of Rs one lac on the complainant. Subsequently, the matter was challenged at the State Commission level. The State Commission diligently reviewed all the documents submitted by both parties to reach a logical conclusion.
Dr. P Sukumaran, a pulmonologist, determined that the complainant showed no clinical or radiological evidence of any active respiratory disease. Furthermore, the pertinent provisions of the Act concerning the clinic’s duties and responsibilities were also examined.
Art 16(6) guaranteed that medical fitness certificate given to the expatriates should be authenticated and validated. Article 16(11) said that all issued certificates will be stamped with the seal of the centre after a medical examination has been carried out. Evidently report was neither stamped with seal nor signed by the doctor, hence its authentication or validation was under question.
Additionally, the obligation specified in section 4.3, which necessitates the presence of a qualified radiologist or a related medical practitioner for the interpretation of the report, was not fulfilled. It was discovered that the doctor responsible for examining the report was not present in Ernakulam but instead was stationed in Mumbai. There was no substantiation to establish the presence of a qualified doctor or radiologist at the testing centre. Given that an erroneous report could potentially result in the loss of job opportunities for the candidate, it was imperative to thoroughly review the report, particularly when it indicated unfitness.
State commission confirmed the order made by District Commission holding the clinic deficient in services.
Intervention by HC of Delhi on necessary qualification and procedure for signing reports under the Act
It is noteworthy to mention that a matter concerning the qualifications of radiologists and doctors who sign reports under the Clinical Establishment Act 2010, was brought before the High Court of Delhi. The High Court of Delhi has issued a notice to the Health Ministry in response to a writ petition filed against the amendments made in the Rules 2020 of the Clinical Establishment Act. The bench of the Delhi High Court, comprising Prateek Jalan and Chief Justice DN Patel, issued the notice on December 17, 2020.
Dr. Rohit Jain submitted a writ petition to the High Court of Delhi, requesting a directive to declare the Clinical Establishment (Central Government) Amendment Rules, 2020, of the Clinical Establishment Act, 2010 as ultra vires. These revised rules permit individuals holding a Master’s of Science or Ph.D. degree and working as technicians in diagnostic laboratories to sign and authenticate medical reports without the counter signature of a qualified MBBS or MD in Pathology. Since every test report is considered a medical report that necessitates the application of expertise, interpretation, and diagnosis from the outset, it is imperative that only individuals with qualifications of MBBS or MD should be authorized to sign such reports.
Arguments by the petitioner were-
- According to Section 15(2) of the Indian Medical Council Act, 1956, only a registered medical practitioner can practice modern medicine, and that a medical laboratory report can only be countersigned by a registered medical practitioner with a post graduate qualification in pathology. The qualifications of MSc or PhD are unregulated and cannot be equated with MBBS or MD in Pathology.
- It is also pointed out that Supreme Court also in its 2017 judgment expressed the same views that according to Section 15(2) of the Indian Medical Council Act, 1956 only a registered medical practitioner can practice modern medicine, and that a medical laboratory report can only be countersigned by a registered medical practitioner with a post graduate qualification in pathology.
Ref. High Court of Delhi-17th December 2020
Following the notice from the High Court of Delhi, the Ministry of Health and Family Welfare issued a notification in New Delhi on April 9, 2021, marked as S.O. 1992(E). This notification stated that, in accordance with the authority granted by subsection (1) of section 3 of the Clinical Establishments (Registration and Regulation Act, 2010 (23 of 2010), and in replacement of the previous notification dated June 18, 2020, the Central Government has established a National Council for Clinical Establishments, which will be chaired by a designated chairperson.