A Case of Medical Negligence

When the Consumer Protection Act, 1986 was passed many patients filed cases against doctors alleging negligence in the medical practice against them. As a consequence, many legal decisions were made on the issue of what are considered as negligence and what is needed to prove the same.

Negligence means infringement of the legal duty as it also means carelessness on the part of the doctor in performing their duty. Persons who deliver medical advice and treatment declare that they have the knowledge and skill to make a decision regarding the treatment and also to prescribe the same. As in the case Haryana vs Smt Santra, a responded who is a poor labouring woman already having seven children went for sterilization but got pregnant and gave birth to a girl child. Obviously Sterilization operation was a failure. Smt. Santra filed a suit of Rs two lakhs for negligence which was ultimately ruled for an amount of Rs 54,000 with interest at a sum of Rs 12 per cent per annum. Two appeals were produced against this decree in the court of District Judge, Gurgaon, but both were dismissed. Under these circumstances present Special Leave Petition was filed in the court.

The Sterilization Scheme was launched by the Haryana Government and as per this scheme Smt. Santra visited Chief Medical officer, Gurgaon for sterilization in 1988. Operation was performed on her and Santra was given assurance that operation had been successful and she had been completely sterilized. But unfortunately she again conceived. The trial court decided that it was a complete case of negligence. “The act of the DW 2 Dr. Sushil Kumar proves that he did not perform his duty to the best of his ability and with due care and caution and due to the above said act, the plaintiff has to suffer mental pain and agony and burden of financial liability."

Doctors in India must be responsible and held liable for their services with certain exceptions. In a case of free treatment wherever it may be their duties would not be regarded as services as specified in Section 2 (1)(0) of the Consumer Protection Act 1986.

It is also a fact that no one is completely perfect and even a most competent doctor can make mistakes. As it is said, “An error of judgment constitutes negligence only if a reasonably competent professional with the standard skills that the defendant professes to have, and acting with ordinary care would not have made the same error” (4). As in a case of Dr Laxman Balkrishna Joshi vs Dr Trimbak Bapu Godbole, the Supreme Court ruled that doctor has adhered to a practice which is appropriate as per authoritative body of medical profession; he or she will not be held negligent if something goes wrong.

Doctors must observe a decree of competence however they cannot warranty of the perfection or a guarantee of cure. If a doctor has adopted appropriate treatment and procedure and still something goes wrong then he or she should not blamed.

Any complaint of negligence should not be implied on the doctors without prima facie evidence in the same. But the case of Smt Santra, negligence of Dr Sushil Kumar cannot be ignored. He issued her certificate of perfect sterilization assuring she will not conceive.

But on observation, she was operated on her right tube and not the left one, and was not also called for second operation. This shows Dr Sushil Kumar Goel as guilty and Smt. Santra eligible for claiming full damages from the State Government as also she has to take care of her child till she attains puberty. This shows there is no merit in this appeal and stands dismissed but without any additional cost.

Dead Blow to Honor Killing-Ruling Manoj-Babali case

It was a Landmark Judgment of the unexpected and a blow to the Khap Panchatyat Raj of Haryana. A Sessions court in Karnal imposed death penalty to five for following diktat of Khap Panchayat to kill couple belonging to the same village.

For the first time, Haryana court pronounced death punishment to somebody who kidnapped and then murdered a couple in the name of honor killing. The sentence brought a new ray of hope for Chandrapati, Manoj’s mother who was outcast by her village and society. As per the legal experts, the verdict will surely put a hindrance on the khaps from taking law in their own hands and encourage people to raise their voice against the orthodoxy that tends to impart social relations in Haryana.

Manoj, aged 23 of Karoran Village of Kaithal was murdered as they married in the same Gotra family which is against the societal norms. Not only this, the Panchayat too announced a fine of Rs 25,000 on those whosoever found keeping any relation with the family.

At last justice was done as authorities after prolonged hesitations and debate had ultimately stepped forward to take on these caste bodies veraciously. The Supreme Court on May 2011 directed trial/High courts to impose death penalty to all those convicted in such heinous crimes. Giving this judgment, a Bench of Justices Markandey Katju and Gyan Sudha declared, “In our opinion, honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behavior. All persons who are planning to perpetrate ‘honour' killings should know that the gallows await them.”

In the appeal, the prosecution case stated that the appellant Bhagwan Dass was humiliated as she was having illicit relation with one Sriniwas, son of the maternal uncle of the appellant. Appellant murdered his daughter to save the family’s honour. The trial court proved him guilty and imposed life imprisonment on him which was supported by the Delhi High Court. The appeal by Bhagwan Das was presented against this judgment. But the Bench discarded this appeal and approved for life sentence and also directed that in the future all High Courts and trial courts should consider honour killing as rare case and award death penalty to those found guilty.

The copy of the judgment was sent to all registrars general and registrars of High Courts to get the same circulated among all the judges of High Courts.

State of Punjab Vs Anil Kumar, 2007 LLR

In a recent case of the Supreme Court of India (State of Punjab Vs Anil Kumar, 2007 LLD ruled that after termination of 13 years labour is not entitled for back wages, however he can be eligible for appointment in the services. The workman was appointed on daily wages for three consecutive terms in different depots of Punjab Roadways during the tenure from 6.2.81 to 30.9.85. As after the completion of the projects, there was no job so he was disengaged after 30.9. 85. The workman filed a civil suit in the Court, Jalandhar for allowing him to continue the services under the Punjab Road Ways.

The civil court passed ruling on 9.2. 91 holding that the workman is an employee of the Punjab Road Ways and so entitled for back wages from the date of filing of suit. Employer filed an appeal against the order of the Civil Court in the court of the District Judge. However the suit was taken aback by the respondent and so the judgment dt dt. 9.2.91 of civil court did not remain valid. Yet again on 9.5.94, the workman filed a civil suit for the regulation of his service since 5.2.81 under Punjab Road Ways, but the same was dismissed by the Civil Judge (Jr. Division) on 12.10.96. However again appeal was made against the judgment in the court of District Judge but again the case was withdrawn on 17.9.98.

After wasting complete 13 years, the workman filed a demand notice on the employee on 29.9.98 under the I.D. Act, 1947. The matter was presented before the labour court for deciding the case. The labour court adjudicated that employee should be taken back on services with 40% back wages from the date of sanction of notice i.e. w.e.f. 29.9.98. But employer again filed writ petition before the High Court challenging the award to be presented to the labour court. The High Court rejected the writ petition stating that the labour court does not require any interference as the workman had already worked for more than 240 days before his services were terminated.

Employer again challenged the judgment of the High Court in Supreme Court which held that as the labour court was moved after 13 years therefore his judgment remains not valid. The Apex court therefore directed Punjab roadways to reinstate the employer while holding back the decision for payment of back wages.

Charges Framed against Kushpreet murder Case

The much awaited Kushpreet abduction and murder case will finally take its shape as Additional District and Sessions Judge V.P Sarohi framed charges against Sukhdev Singh, Gurminder Singh and Nand Kishore this Saturday. The charges have been levied under sections 364-A, 302, 201 and 120-B of IPC for kidnapping for murder, ransom and disappearance of evidence and criminal conspiracy.

The hearing of the case was fixed for 25th August and summons was unanimously sent to the eight main witnesses for examining their statement that day. The court still had to announce on the petition filed by the prosecution for daily trial proceedings. At the same time father of deceased Khushpreet, Lakhbeer Singh too filed an affidavit before the authorities on Friday referring that the police carelessly handled the case that led to the murder of his son. The application was filed by Gagan Aggarwal, who is also general secretary of the Chandigarh unit of Lawyers for Human Rights. The application sought for lodging FIR against alleged police officers who had been placed under judicial inquiry.

Khushpreet, aged 5 was kidnapped from just outside his house in Burail and Rs four lakhs was demanded as a ransom for his release. The ransom was handed over to the culprits as the police laid their trap. At the last moment and to the sudden shock of everybody, the trap was withdrawn. On 5th January, the body of the boy was found from Mohali.