Medical malpractice

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M.V. Act – Death of a 19 year old Engineer student – Apex court enhanced compensation to Rs.7,00,000 from Rs. two lakhs = Radhakrishna and another ….Appellants versus Gokul and others ….Respondents = Reported in http://judis.nic.in/supremecourt/filename=40944

M.V. Act – Death of a 19 year old Engineer student – Apex court enhanced compensation     to Rs.7,00,000  from Rs. two lakhs =       Thus  the  grand  total compensation of the applicants is Rs.1,92,000/- entitled to  get  from Res 1-3 jointly or separately.”   The appellants challenged the award  of  the  Tribunal  by  filing  an … Continue reading

Dismissing the appeal, this Court HELD : 1.1. Negligence is a `tort’. Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as `implied undertaking’ by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. [202-F] Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR (1969) SC 128; A.S. Mittal v. State of U.P, AIR (1989) SC 1570; Poonam Verma v. Ashwin Patel, [1996] 4 SCC 332 and Spring Meadows Hospital v. Harjol Ahluwalia, JT (1998) 2 SC 620, relied on. Bolam v.Friern Hospital Management Committee, (1957) 2 All ER 118; Whitehouse v. Jordon, (1981) 1 AH ER 267; Maynard v. West Midlands Regional Health Authority, (1985) 1 AH ER 635 and Sidway v. Bathlem Royal Hospital, (1985) 1 AH ER 643, referred to. 1.2. The Government at the Centre as also at the State level is aware that India is the second most populous country in the world and in order that it enters into an era of prosperity, progress and complete self-depend-ence, it is necessary that the growth of the population be arrested. It is with this end in view that family planning programme has been launched by the Government. The implementation of the programme is directly in the hands of the Government Officers, including Medical Officers involved in the family planning programmes. The Medical Officers entrusted with the implementation or the Family Planning Programme cannot, by their negligent acts in not performing the complete sterilisation operation, sabotage the scheme of national importance. The people of the country who cooperate by offering themselves voluntarily for sterilisation reasonably expect that after undergoing the operation they would be able to avoid further pregnancy and consequent birth of addi-tional child. [206-B-D] 1.3. If the respondent, in these circumstances, had offered herself for complete sterilisation, both the Fallopian Tubes should have been operated upon. The Doctor who performed the operation acted in a most negligent manner.[206-E-F] 2.1. The courts in the different countries are not unanimous in allow-ing the claim for damages for rearing up the unwanted child born out of a failed sterilisation operation. In some cases, the courts refused to allow this claim on the ground of public policy, while in many others, the claim was offset against the benefits derived from having a child and the pleasure in rearing up that child. In many other case, if the sterilisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already had many children, the court allowed the claim for rearing up the child. [210-C-D] Udale v. Bloomsbury Area Health Authority, (1983) 2 All ER 522; Emeh v. Kensington and Chelsea and Westminster Area Health Authority, (1984) 3 All ER 1044; Thake v. Maurice, (1984) 2 All ER 513; Benarr v. Kettering Health Authority, (1988) 138 NLJ 179; Crouchman v. Burke, (1997) 40 BMLR 163; Robinson v. Salford Heath Authority, (1992) 3 Med. LR 270; Allan v. Greater Glasgow Health Board, (1993) 1998 SLT 580; Szekeres v. Robinson, (1986) 715 P 2d 1076; Johnson v. University Hospitals of Cleveland, (1989) 540 NE 2d 1370 (Ohio); Public Health Trust v. Brown, (1980) 388 So 2d 1084; Lovelace Medical Center v. Mendez, (1991) 805 P 2d 603; Administrator, Natal v. Edouard, (1990) 3 SA 581, L v. M, (1979) 2 NZLR 519; CES v. Superclinics (Australia) Pty. Ltd., (1995) Ltd. (1985) 38 NSWLR 47; Mc Farlane & Anr. v. Tayside Health Board, (1999) 4 All ER 961 and Halsbury’s Laws of England 4th Edn. (Reissue) Vol. 12(1), para 896, referred to. 2.2. The principles on the basis of which damages have not been allowed on account of failed sterilisation operation in other countries either on account of public pleasure in having a child being offset against the claim for damages cannot be strictly applied to the Indian conditions so far as poor families are concerned. The public policy here professed by the Government is to control the population and that is why various programmes have been launched to implement the state-sponsored family planning programmes and policies. [210-G-H] 3.1. It is, no doubt, true that the parents are under an obligation to maintain their minor children. This is a moral, apart from a statutory, liability in view of the provisions contained in Section 125 of the Criminal Procedure Code, 1973. It is also a statutory duty on account of Section 20 and 23 of the Hindu Adoptions and Maintenance Act, 1956. [211-C] 3.2. `Maintenance” would obviously include provision for food, cloth-ing, residence, education of the children and medical attendance or treat-ment. [211-F] 3.3 Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But the statutory liability to maintain the children would not operate as a bar in claiming damages on account of tort of medical negligence in not carrying out the sterilisation operation with due care and responsibility. The two situations are based on two different principles. The statutory as well as personal liability of the parents to maintain their children arises on account of the principle that if a person has begotten a child, he is bound to maintain that child. Claim for damages, on the contrary, is based on the principle that if a person has committed civil wrong, he must pay compensation by way of damages to the person wronged. [212-C-D] Mulls’s Principles of Mohammedan Law (19th Edn.), p. 300, referred to. 4. In a country where the population is increasing by the tick of every second on the clock and the Government had taken up the family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilisation opera- tion, the doctor as also the State must be held responsible in damages if the Sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who has chosen to be operated upon for sterilisation. [212-F] State of M.P. v. Asharam, (1997) ACJ 1224 (MP), approved. 5. The contention as to the vicarious liability of the State for the negligence of its officers in performing the sterilisation operation cannot be accepted in view of the law settled by this Court. [213-B] N. Nagendra Rao v. State of A.P., AIR (1994) SC 2663; Common Cause, A Regd. Society v. Union of India, [1999] 6 SCC 667 and Achutrao Haribhau Kodwa v. State of Maharashtra, (1996) ACJ 505, relied on. 6. In the instant case, the respondent was a poor lady who already had seven children. She was already under considerable monetary burden. The unwanted child (girl) born to her has created additional burden for her on account of the negligence of the doctor who performed sterilisation operation upon her and, therefore, she is clearly entitled to claim full damages from the State Government to enable her to bring up the child at least till she attains puberty. [213-B] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2897 of 2000.

PETITIONER: STATE OF HARYANA & ORS. Vs. RESPONDENT: SMT. SANTRA DATE OF JUDGMENT: 24/04/2000 BENCH: S.S.Ahmad, D.P.Wadhwa JUDGMENT: S. SAGHIR AHMAD, J. Leave granted. Medical Negligence plays its game in strange ways. Sometimes it plays with life; sometimes it gifts an “Unwanted Child” as in the instant case where the respondent, a poor labourer woman, … Continue reading

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