5

Medical Negligence consumer forums Judgments

Medical Negligence How to prove Here are some Medical Negligence consumer forums Judgements V. Krishnakumar vs State Of Tamil Nadu &Ors. One thing is clear about the disease, and this was not contested by the learned counsel for the respondents, that the disease occurs in infants who are prematurely born and who have been administered oxygen and blood transfusion upon birth and further, that if detected early enough, it can be prevented. It is said that prematurity is one of the most common causes of blindness and is caused by an initial constriction and then rapid growth of blood vessels in the retina. When the blood vessels leak, they cause scarring. These scars can later shrink and pull on the retina, sometimes detaching it. The disease advances in severity through five stages – 1, 2, 3, 4 and 5 (5 being terminal stage). Medical literature suggests that stage 3 can be treated by Laser or Cryotherapy treatment in order to eliminate the abnormal vessels. Even in stage 4, in some cases, the central retina or macula remains intact thereby keeping intact the central vision. When the disease is allowed to progress to stage 5, there is a total detachment and the retina becomes funnel shaped leading to blindness. There is ample medical literature on the subject. It is, however, not necessary to refer all of it. Some material relevant to the need for check up for ROP for an infant is: “All infants with a birth weight less than 1500 gms or gestational age less than 32 weeks are required to be screened for ROP.”[1] Applying either parameter, whether weight or gestational age, the child ought to have been screened. As stated earlier, the child was 1250 gms at birth and born after 29 weeks of pregnancy, thus making her a high risk candidate for ROP In present case ROP related treatment not performed. In the circumstances, we consider it appropriate to apportion the liability of Rs. 1,38,00,000/- among the respondents, as follows: Rs. 1,30,00,000/- shall be paid by Respondent Nos. 1 and 2 jointly and severally i.e. The State of Tamil Nadu and the Director, Government Hospital for Women & Children, Egmore, Chennai; and Rs. 8,00,000/- shall be paid by Respondent Nos. 3 and 4 equally i.e. Rs. 4,00,000/- by Dr. S. Gopaul, Neo- pediatrician, Government Hospital for Women & Children, Egmore, Chennai and Rs. 4,00,000/- by respondent no. 4 i.e. Dr. Duraisamy, Neo Natology Unit, Government Hospital for Women & Children, Egmore, Chennai. The above mentioned amount of Rs. 1,38,00,000/- shall be paid by Respondent Nos. 1 to 4 within three months from the date of this Judgment otherwise the said sum would attract a penal interest at the rate of 18% p.a. No medical expert consulted Sikha Nayek vs. Dr. Manabesh Pramanik, where Their Lordships have held that ‘a case of medical negligence has to be proved by proper medical expert’s evidence; it cannot be based on mere statements of a patient or patient party.’ In the judgment passed by the Hon’ble National Commission, reported in 2004 CTJ, 175, (CP) (NCDRC), where Their Lordships have held that ‘As per settled law on medical negligence, it has to be alleged as to which action of the doctor was not as per accepted medical practice and what was done should not have been done or what was not done should have been done, this has to be supported by expert evidence or available medical literature on the subject. In the instant case the Complainant has failed to prove by adducing cogent evidence that the OP has failed to provide treatment as per accepted medical practice and what was done by him should not have been done. Moreover the Complainant has failed to prove the negligent treatment of the OP by adducing the expert evidence or by way of production of the standard medical text. Upasana Hospital and Another vs. S. Farook, reported in II (2007) CPJ 235 (NC), where the said Commission have held that without any expert evidence produced by the Complainant for alleged negligence, onus lies on the Complainant to prove the same and in this judgment the Hon’ble National Commission have relied upon the judgment passed by the Hon’ble Supreme Court in the case of Jacob Mathew vs. State of Punjub and Another, reported in 2005 CTJ 1085 (Supreme Court), (CP), where Their Lordships have held that ‘a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another’. “Bolam v Friern Hospital Management Committee”, (1957) 2 ALL ELR 118, which was accepted by the Hon’ble Supreme Court as laying down correct tests in cases of medical negligence, in which it was observed that negligence in law means failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do. The Hon’ble Supreme Court in the judgment Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others”, 2010(3) SCC 480 issued the guidelines that the following principles must be kept in mind while deciding whether the medical professional is guilty of medical negligence:- “I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional.



5

Why your startup E-commerce/Service site needs a Privacy Policy,User Agreement, Terms and conditions.

If you are a startup or an E-commerce company providing a services rendered by third parties then this is an important article for you- Ever wondered why you need a privacy agreement, user agreement or third party agreement on your website, some of the think its such a waste to have them on their website but if you are an E-commerce company providing a services rendered by third parties this is an important feature to prevent you from legal liabilities that may arise due to unlawful activities done by your third party vendors. How? Read Below. Section 79 of the IT act talks about the exception from liability of intermediaries, meaning thereby the intermediaries will not be held responsible for any of the unlawful acts done by the third party on your website. It is an exception/immunity section specifically for the intermediaries, Section 79(2)(c) talks about a responsibility of due diligence on the part of intermediaries. Now what due diligence intermediaries have to take? Section 79(2)(c) of the IT act talks about due diligence which are mentioned in guidelines of the central government framed by the central government with respect to intermediaries. Under such guidelines and under rule-3 of the guidelines Image result for user agreement The intermediary shall publish the rules and regulations, privacy policy and user agreement for access-or usage of the intermediary’s computer resource by any person. (2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that — (a) belongs to another person and to which the user does not have any right to; (b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; (c) harm minors in any way; (d) infringes any patent, trademark, copyright or other proprietary rights; (e) violates any law for the time being in force; (f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; (g) impersonate another person; (h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation Now in order to prevent yourself from the third party violation of unlawful activities on your website you need a well drafted rules and regulations, privacy policy and user agreement for your webpage.



5

Quashing of False FIR registered under 498A and 406 of the Indian Penal Code

Harsh Vardhan Arora v. Smt Kavita Arora, 2002 MLR 528= 2002(2) RCR (Cr) 499 (Pb & Har.) The Court can exercise extraordinary jurisdiction vested under section 482 of the Code of Criminal Procedure 1973 primarily to prevent the abuse of the process of the court or otherwise secure the ends of justice. Basically it would depend on fact situation of each case which would enable the court after reading the complaint as a whole whether allegations made therein at their face value bring out the ingredients made therein at their face value bring out the ingredients of the offence or whether these do not constitute the offence for which cognizance was taken by the magistrate and in the later case the court would be justified in quashing the complaint. In the present case the facts detailed in the complaint have been noticed above. Omnibus allegations had been made against all the accused in respect of demand of dowry, harassment, torture and beating given to her during the period she stayed in the matrimonial home. No specific date, month or year had been specified when these incidents had taken place. It cannot be ignored that every member of the family of the complainant’s husband has been implicated in this case. The allegations made are vague and general and for that reason no offence under Section 498-A, IPC is made out against the accused. Mukesh Rani V. State of Haryana, 2002 MLR 175=2002 (2) Cr.CC 123= 2002 (1) RCR (Cr) 163= 2002 (1) CC Cases (HC) 48 (Pb. & Har.) In the instant case respondent No.2 is the husband of respondent No.3 and respondent No.3 is the sister of husband of the complainant. In the FIR, it has not been specifically mentioned what dowry articles were entrusted to respondents 2 and 3 at the time of the marriage. If no article has been entrusted to respondents 2 and 3, then no case under section 406 is made out. It is also not the case of the complainant that respondents2 and 3 are residing with the husband of the complainant. The respondents have placed on record the documents showing that they are employed as teachers and are living separately in village Bamble from the complainant and her husband Satyadev. Even on the date when the alleged occurrence took place respondents were present in their school i.e. on 07.01.1994. If on the face of the compliant it shows that complaint is false, charge should not be framed. In the instant case, there is evidence that respondent No.3 who is the sister of the husband of the complainant was living separate with her husband-respondent No.2 in a different village and were employed as teacher, the learned trial court has rightly discharged respondents 2 and 3. For the reasons mentioned above, there is no ground to interfere in the well reasoned orders passed by the learned courts below. Hence this petition is dismissed. Anu Gill V. State and Anr., 2001 MLR 467 = 2001 (59) DRJ 417 (Delhi) To constitute the offence under section 406, IPC there must be clear and specific allegation that the accused was entrusted with some property or domain over it, by the complainant, that the accused has dishonestly misappropriated or converted the same to his own use or that accused refused to return back the articles when the same were demanded by the complainant. Perusal of the allegations appearing against the petitioner do not show that articles of Istridhan were even entrusted to her. In misappropriation or conversion to her use does not arise. Thus the most vital ingredient to constitute the offence under section 406, IPC is missing. In view of the above, no case under section 406, IPC is spelt out against the petitioner. After her marriage complainant- respondent No.2 started living with her husband who never posted in Delhi. Admittedly petitioner was employed in Ministry of Finance at the time of marriage of the complainant. The petitioner was married in 1997 and since then she is living in her own matrimonial home. Allegations made by the complainant that her husband used to misbehave with her, at the behest of the petitioner are totally vague, inherently improbable and unworthy of credence. From these allegations even a strong suspicion cannot be interfered. Even the statements recorded during investigation do not furnish the requisite material so as to make out the prima facie case under section 498-A, IPC against the petitioner. Raj Pal Singh & Ors. V. State of Haryana, 2000 MLR 594= 2000(3) Rec. C.R. 135 (Pb. & Har.) So far as cruelty by the complainant is concerned, the complaint is once again vague and general. The complainant has stated that from the beginning, all the accused especially accused No.1 (her husband) treated her cruelly. There is no allegation against any of the petitioners. The further allegation that few days after the marriage the accused persons started torturing her is also vague and without details. Similarly the allegation that the other accused instigated her husband is also vague and general without being specific. Though the complainant has stated that five months after the birth of male child, she was turned out of the matrimonial home, she has not specified as to who has done so. Her allegation that in July, 1997, her husband at the instance of the other accused severely beat her and turned her out of the matrimonial home is again the allegations regarding the entrustment of the dowry articles and the allegations regarding misappropriation are also not in this petition is that the petitioners are living separately while the complainant and her husband lived separately in separate house and, therefore, there was no occasion for these petitioners to either demand dowry or misappropriate it or to treat the complainant cruelly as alleged by her. But the complainant has not chosen to appear and deny the allegation that herself and separately in a separate house. This is also an additional factor which has to be taken into consideration. Therefore, I am of the view that the reading of the F.I.R. does not disclose any ground for proceeding against the petitioners for any of the offences alleged in the F.I.R. Therefore, the F.I.R. has to be quashed on this ground only. Neera Singh v. The state (Govt. of NCT of Delhi) & Ors., 2007 MLR 335= 2007 (2) LRC 75= 2007 (1) DMC 345=2007 (138) DLT 152=2007 (2) JCC 906 Delhi Considering the allegations made by the complainant in her statement to the police and in the FIR, the learned ASJ observed that the ingredients under section 498-A of the IPC were not made out against the minor girls Kamlesh and Mamta. The remarks as alleged were made by the two girls. There were no allegations of either physical or mental torture by these two girls and, therefore, he considered the no case was made out against the two minor girls under section 498-A of the IPC. The cruelty perpetuated on a women may be physical or mental. However, not doing household work by minor girls either or their own or at the instance of their mother, as alleged, cannot be stated to be cruelty to the women or the utterances as assigned to these two minor girls that she had not brought any gold item for them would amount to harassment being made by minor girls for the purpose of coercing her or her relatives to meet the unlawful demands. Now-a-days it has become a tendency to make vague and omnibus allegations against every member of the family of the husband, involving everybody under section 498-A and 406 of the IPC by making one or the other allegations. Hence, it has become very necessary for the courts to carefully scrutinize the allegations and to find out if the allegations made really constitute the offence and meet the requirements of law at least prima facie. The learned ASJ scrutinized the entire FIR and the statement of the complaiant and thereafter observed that no case was made out against these two minor girls. I have also gone through the record and find that except above allegations made by the complainant, no other role was assigned to these two minor girls (respondents).



5

‘Preventive Detention’ or ‘Punitive Detention’?

Invariably preventive detention laws provide that detention order may be executed at any place in India in any manner provided for the execution of warrants of arrest under the Cr. P.C. Further Article 22 of the Constitution is the relevant provision in this regard for arrest of a person which provides as under:- “22. Protection against arrest and detention in certain cases-(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply- (a) to any person who for the time being is an enemy alient; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that three is in its opinion sufficient cause for such detention: Provide that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as maybe, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe- (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).” The langrage of Article 22(1) & (2) indicates that the word “arrest” has to be distinguished from “detention”. Section 41 of the Cr.P.C. Provides when police may arrest without warrant. Section 46 provides how “arrest” can be made:- The essential elements to constitute an arrest are that there must be an intent to arrest under authority of, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested. Arrest consists of actual seizure or touching of a person’s body with a view to his detention. The pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. This seems to be the mode of arrest recognized in English Law. An arrest by mere oral declaration is insufficient. However, there is a vital distinction between ‘preventive detention’ and ‘punitive detention’ HON’BLE BHAGWATI, J. observed in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi: “Punitive detention is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence while preventive detention is not by way of punishment at all, but it is intended to prevent a person from indulging in conduct injurious to the society. The power of preventive detention has been recognized as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in time of war or aggression.” Preventive detention is qualitatively different from punitive detention and their purposes are different. In case of punitive detention, the person concerned is detained by way of punishment after he is found guilty of wrong doing as a result of a trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the executive is very limited. Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him, but at curtailing his liberty with a view to preventing his injurious activities in future, it has been laid down by this Court in Sampat Prakash v. State of Jammu and Kashmir, that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal.” Similarly RACY C.J. observed in 5- judges bench decision of the Supreme Court, that the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is punitive action and the other is a preventive act. In one case a person is punished to prove (sic)(on proof of?) his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in various statutes on preventive detention. I will share the instances wherein the law of preventive detention becomes operative and grounds to set aside the detention order.



5

Is it a reasonable belief?

Though this term is not referred in our legal system as much as the word intention or the knowledge is being referred. But this term is of great significance and plays an important role in respect of the offences wherein the officers of income tax or enforcement directorate open the assessment or confiscate the property without recording their reasons to believe and therefore the order is bad in law and therefore is liable to be set aside. The expression ‘reason to believe’ has been defined under Section 26 of the Indian Penal Code as under:- “26 “Reason to believe”.-A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise.” And that sufficient cause must be in writing and justifiable. The expression ‘reason to believe’ has also been the subject matter of several decisions of the Supreme Court albeit in the context of other laws. In the case of Aslam Mohd. Merchant v. Competent Authority & Ors: (2008) 14 SCC 186, the Supreme Court considered the meaning of the expression ‘reason to believe’ in the context of Narcotic Drugs and Psychotropic Substances Act, 1985. The Supreme Court referred to its earlier decisions rendered in the context of Section 147 of the Income Tax Act, 1961 where a similar expression has been used to clothe an Assessing Officer with the power to reopen income tax assessments. In Phool Chand Bajrang Lal v. ITO: (1993) 203 ITR 456 (SC), the Supreme Court held as under: “Since the belief is that of the Income- tax Officer, the sufficiency of reasons for forming this belief is not for the court to judge but it is open to an assessee to establish that there in fact existed no belief or that the belief was not at all a bona fide one or was based on vague, irrelevant and non- specific information. To that limited extent, the court may look into the conclusion arrived at by the Income-tax Officer and examine whether there was any material available on the record from which the requisite belief could be formed by the Income-tax Officer and further whether that material had any rational connection or a live link for the formation of the requisite belief.” In Income Tax Officer v. Lakhmani Mewal Das: 1976 SCR (3) 956, the Supreme Court explained that powers of Income Tax Officer to reopen an assessment, though wide, are not plenary as the words used are ‘reason to believe’ and not ‘reason to suspect’. The Court held that there should be a “live link or close nexus” between the material before the Income Tax Officer and the formation of his belief that the income had escaped assessment. In Calcutta Discount Company v. Income Tax Officer: 1961 SCR (2) 241, the Supreme Court held as under:- “The expression “reason to believe” postulates belief and the existence of reasons for that belief. The belief must be held in good faith: it cannot be merely a pretence. The expression does not mean a purely subjective satisfaction of the Income Tax Officer: the forum of decision as to the existence of reasons and the belief is not in the mind of the Income Tax Officer. If it be asserted that the Income Tax Officer had reason to believe that income had been under assessed by reason of failure to disclose fully and truly the facts material for assessment, the existence of the belief and the reasons for the belief, but not the sufficiency of the reasons, will be justifiable. The expression therefore predicates that the Income Tax Officer holds the belief induced by the existence of reasons for holding such belief. It contemplates existence of reasons on which the belief is founded, and not merely a belief in the existence of reasons inducing the belief; in other words, the Income Tax Officer must on information at his disposal believe that income has been under assessed by reason of failure fully and truly to disclose all material facts necessary for assessment. Such a belief, be it said, may not be based on mere suspicion: it must be founded upon information” Yet in another case Hon’ble Delhi High Court speaking through Hon’ble Justice Vibhu Bakhru in M/S Mahanivesh Oils & Foods Pvt Vs Directorate Of Enforcement on 25 January, 2016 had set aside the confiscation made by the Enforcement Directorate because in the impugned order records that the concerned officer has reason to believe that the property in question is likely to be concealed, transferred or dealt with in a manner, which may result in frustrating the proceedings relating to confiscation of the said proceeds of crime, there is no reference to any fact or material in the impugned order which could lead to this inference. A mere mechanical recording that the property is likely to be concealed, transferred or dealt with would not meet the requirements of Section 5(1) of the Money Laundering Act.



PREVIOUSNEXT

© 2017 Kapilchandnaadvocate. All rights reserved | Design by Pacific infoline