Legal Question in Medical Malpractice in India

Medical courses being run in violation of law

QUESTION� According to a Supreme Court ruling in 2008 (Dr. V. Balaji Vs Union of India), conducting any form of post-graduate medical courses in India, including those by distance learning, without the recognition of MCI is ill-legal and hence strictly prohibited. However, institutes like Medvarsity-Apollo have been conducting many post-graduate certificate courses for last 10 years. Similarly many other hospitals and medical colleges in India openly conduct such courses (eg. Diabetology course). Can these institutes be sued in the court of law? Can the court ban these courses?

ANSWER�

1--The judgment you have quoted is by the Madras High Court. It is titled �Dr. V. Balaji, 30/M vs. Union of India� and was pronounced on 25-11-08. The petitioners challenged the government decision, through an executive order signed by the Governor, for starting 6 months certificate course in diabetology in all state medical colleges for a fee of Rs. 5000/-.

2�The main ground was that the government order violated the provisions of Section 10A(1)(b) of the Medical Council Act, 1956, which reads:

�b.no medical college shall:-

i.open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification.�

3�The Medvarsity-Apollo is not a medical college, hence the above provision of the MCI Act is not applicable to it.

4�Another ground of challenge by the petitioners was that the government order was in contravention of Section 3 of The Indian Medical Degrees Act, 1916, which reads: �3.Right to confer degrees, etc. The right of conferring, granting or issuing in the States degrees, diplomas, licences, certificates or other documents stating or implying that the holder, grantee or recipient thereof is qualified to practice western medical science, shall be exercisable only by the authorities specified in the Schedule, and buy such other authority as the State Government may, by notification in the Official Gazette, and subject to such conditions and restrictions as it thinks fit to impose, authorize in this behalf.�

5�If The Medvarsity-Apollo has not taken permission from the authorities specified in the The Indian Medical Degrees Act, 1916, it would be liable in law.

Similar conditions would apply to institutions other than the Medvarsity-Apollo mentioned by you. However, courts don�t act on their own motion. Someone has to challenge the illegality by filing a petition before the court

-- M C Gupta

MD (Medicine), LL.M.

Ex-Professor

Practicing advocate

[email protected]

5 May 2010