crisis truma

1. AUGUST
2016(PART1)
INDIA’S NO 1 MEDICO LEGAL COMPANY
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3. Table of contents
 Gynaecology protocol & legal aspect
 Types of surgeon
 Autonomy
 Article 21
 The Constitution of India provides
Fundamental Rights under Article 21:
 hysterectomy
 Medical negligence
 Labour & delivery negligence
 Hospital liability for a doctors
negligence
 Clinical negligence

4. Gynecology protocol & legal aspect :-
 There exists a section called Section 39 of CrPC which gives a list of offences, the information
regarding which is to be mandatorily provided to the police. That is, the doctor is duty bound to
provide information about these enlisted offences (in Sec 39 CrPC) to the police. Failure to do so
is punishable. However, the list of offences in Sec. 39 CrPC does not include the offence of
sexual abuse. And hence, legally the doctor is not duty bound to inform the matter to the
police, unless the patient or her relatives express their desire to do so or if the police seeks
information about a particular case. Hence the message about reporting a case of sexual abuse
is as follows
a. The doctor should inform the patient (if >18yrs)/ parents or guardian in case of minor that
the incidence narrated by the patient in her history amounts to a punishable offence and
they have a legal remedy for it. If the patient/ parent or guardian does not have any
objection for reporting the matter to the police, the doctor should promptly do so.
b. Whenever the patient (>18yr)/ parent or guardian in case of minor express their desire to
keep the matter as secret, we should perform our ethical duty of maintaining
“professional secrecy”. However in such cases should always take in writing from the
patient if she is a major / parent or guardian if patient is minor the following details:
o That the doctor has explained that the incidence narrated amounts to a punishable
office.
o That the patient/ parent or guardian can complain to the police about it.
o That she/ parent or guardian has requested the doctor to keep this secret to himself
and not to inform the police about tit as they do not wish to file the police
complaint in this matter.
c. Indian Penal Code, (45 of 1860) namely:
o sections 121 to 126, both inclusive, and section 130 (that is to say, offences
against the State specified in Chapter VI of the said Code);
o sections 143, 144, 145, 147 and 148 (that is to say, offences against the public
tranquility specified in Chapter VIII of the said Code);
o sections 161 to 165A, both inclusive (that is to say, offences relating to illegal
gratification);
o sections 272 to 278, both inclusive (that is to say, offences relating to adulteration
of food and drugs, etc.);
o sections 302, 303 and 304 (that is to say, offences affecting life);
o section 382 (that is to say, offence of theft after preparation made for causing
death, hurt or restraint in order to the committing of the theft);
o sections 392 to 399, both inclusive, and section 402 (that is to say, offences of
robbery and dacoity);
o Section 409 (that is to say, offence relating to criminal breach of trust by public
servant, etc.);
o sections 431 to 439, both inclusive (that is to say, offences of mischief against
property);
o sections 449 and 450 (that is to say, offence of house-trespass);

5. o sections 456 to 460, both inclusive (that is to say, offences of lurking
housetrespass);and
o sections 489A to 489E, both inclusive (that is to say, offences relating to currency
notes and bank notes),
shall, in the absence of any reasonable excuse, the burden of proving which
excuse shall lie upon the person so aware, forthwith give information to the
nearest Magistrate or police officer of such commission or intention.
d. For the purposes of this section, the term "offence" includes any act committed at any
place out of India, which would constitute an offence if committed in India.
(C) However, we also need to know the opinion of some experts who feel that doctors are still
responsible under section 202 IPC, to inform to the police. The lawyers may use this to implicate
the doctors. The section 202 IPC reads as follows
 The words “which he is legally bound to give” plays a major role in interpreting this
section. Neither section 39 CrPC or any other section puts this legal binding on the
doctors to inform. And hence, the scope of Sec. 202 IPC, cannot be extended to the
current issue under consideration.
 If information about sexual abuse is given to police against the will and wish of the
victim or her legal guardian or parents then it is not only against the ethical consideration
of confidentiality but also amount to breach of article 21 of our constitution.
Types of surgeon:-
Audiologist:-
Audiologists specialize in ear related issues, particularly with regard to hearing loss in children.
These doctors work with deaf and mute children to assist in their learning to communicate. They
typically work in hospitals, physicians’ offices, audiology clinics, and occasionally in schools.
Allergist:-
Allergists work with a wide variety of patients who suffer from issues related to allergies, such
as hay, fever, or asthma. They are specially trained to treat these issues and assist patients in
dealing with them and what to do when they are encountered.
Anesthesiologist:-
Anesthesiologists study the effects and reactions to anesthetic medicines and administer them to
a variety of patients with pain-killing needs. They assess illnesses that require this type of
treatment and the dosages appropriate for each specific situation.

6. Cardiologist:-
Cardiologists specify in the study and treatment of the heart and the many diseases and issues
related to it. They assess the medical and family history of patients to determine potential risk for
certain cardiovascular diseases and take action to prevent them.
Dentist:-
Dentists work with the human mouth, examining teeth and gum health and preventing and
detecting various different issues, such as cavities and bleeding gums. Typically, patients are
advised to go to the dentist twice a year in order to maintain tooth health.
Dermatologist:-
Dermatologists study skin and the structures, functions and diseases related to it. They examine
patients to check for such risk factors as basal cell carcinoma (which signals skin cancer) and
moles that may eventually cause skin disease if not treated in time.
Endocrinologist:-
Endocrinologists specify in illnesses and issues related to the endocrine system and its glands.
They study hormone levels in this area to determine and predict whether or not a patient will
encounter an endocrine system issue in the future.
Epidemiologist:-
Epidemiologists search for potential diseases that may crop up and cause a great deal of
problems for a population and look for vaccinations for current terminal diseases, such as cancer
and HIV/AIDS.
Gynecologist:-
Gynecologists work with the female reproductive system to assess and prevent issues that could
potentially cause fertility issues. Female patients are typically advised to see a gynecologist once
a year.
Gynecological work also focuses on issues related to prenatal care and options for expectant and
new mothers. For more information on how to ensure that your infant is growing and developing
properly.
Immunologist:-

7. Immunologists study the immune system in a variety of organisms, including humans. They
determine the weaknesses related to this system and what can be done to override these
weaknesses.
Infectious Disease Specialist:-
Infectious Disease Specialists are often found in research labs and work with viruses and bacteria
that tend to cause a variety of dangerous diseases. They examine the source of these organisms
and determine what can be done to prevent them from causing illnesses.
Internal Medicine Specialist:-
Internal Medicine Specialists manage and treat diseases through non-surgical means, such as
anesthetics and other pain-reliving drugs. They work in many different healthcare facilities and
assist other physicians in finding the most appropriate means of treatment for each individual
patient.
Medical Geneticist:-
Medical Geneticists examine and treat diseases related to genetic disorders. They specialize in
disorders that are hereditary in nature and work to find ways to prevent already-present diseases
from passing down to the next generation through reproduction.
Microbiologist:-
Microbiologists study the growth infectious bacteria and viruses and their interactions with the
human body to determine which could potentially cause harm and severe medical conditions.
They also seek to find immunizations for diseases caused by these organisms.
Neonatologist:-
Neonatologists care for newborn infants to ensure their successful entry into a healthy and
fulfilling life. The focal point of their examinations is on premature and critically ill infants who
require immediate treatment at the risk of fatal consequences.
Neurologist:-
Neurologists work with the human brain to determine causes and treatments for such serious
illnesses as Alzheimer’s, Parkinson’s, Dementia, and many others. In addition to research on the
brain stem, neurologists also study the nervous system and diseases that affect that region.
Neurosurgeon:-

8. Neurosurgeons operate on the human brain and body to treat and cure diseases affecting the
nervous system and brain stem. They work to alleviate symptoms from serious brain illnesses
that cause patients a great deal of physical and emotional pain.
Obstetrician:-
Obstetricians work in a particular area of gynecology that focuses on neonatal care and
childbirth. They also perform other operations related to the female reproductive system
including c-sections, hysterectomies, and surgical removal of ovarian tumors.
Oncologist:-
Oncologists focus on the treatment and prevention of cancer in terminal and at-risk patients.
They offer such treatments as examination and diagnosis of cancerous illnesses, chemotherapy
and radiotherapy to destroy cancer cells in the body, and follow-up with survivors after treatment
successes.
.Orthopedic Surgeon:-
Orthopedic Surgeons treat ailments concerned with the skeletal system, such as broken bones
and arthritis. These doctors are often found in emergency rooms since accidents that result in
broken bones are often unintentional and demand immediate treatment.
ENT Specialist:-
ENT Specialists concentrate in areas related to the Ear, Nose, and Throat, and sometimes even
ailments related to the neck or the head. Children often seek treatment from ENT specialists for
surgery in the above areas, and adults see these doctors for sinus infections.
Pediatrician:-
Pediatricians work with infants, children, and adolescents regarding a wide variety of health
issues, ranging from the common cold to severe conditions. They make their work environments
highly “kid-friendly”, often featuring a range of toys and bright colors.
.Physiologist:-
Physiologists study the states of the human body, including emotions and needs. They
particularly focus on the functions of the human body to assess if they are working correctly and
attempt to determine potential problems before they become an issue.
Plastic Surgeon:-

9. Plastic Surgeons perform cosmetic surgery to enhance the physical attributes of a patient or
amend a physical issue that the patient finds unsatisfactory. The ultimate goal of professionals in
this field is to “correct” improper human forms.
Podiatrist:-
Podiatrists work on and study ailments that afflict the feet and ankles of patients. They are often
referred to a “foot doctors” and treat such afflictions as athlete’s foot, calluses, nail disorders,
and other foot injuries and infections.
Psychiatrist:-
Psychiatrists, who occupy a more prevalent place in the research field than the medical field,
study behavior and mental processes. They often work with patients in one-on-one sessions to
alleviate mental illnesses and behavioral disorders.
Radiologist:-
Radiologists diagnose and detect physiological ailments through the use of x-rays and other such
imaging technologies. Through the use of these technologies, they scan the victim’s body for
hazardous cells, such as cancer cells, and look for fractures or breaks in accident victims.
Rheumatologist:-
Rheumatologists, similar to Allergists, diagnose and treat allergies, as well as autoimmune
disorders. However, unlike their Allergy-focused neighbors, these doctors also treat joint and
tissue problems and diseases that afflict the immune system.
Surgeon:-
Surgeons can be found at the operating table, performing a wide variety of surgeries from head
to toe. Subsets of surgeons include such areas as general surgery, neurosurgery, cardiovascular
surgery, cardiothoracic surgery, ENT surgery, and oral surgery.
Urologist:-
Urologists specialize in issues related to the urinary system, such as urinary tract infections. They
also treat and study afflictions of the kidneys, adrenal glands, bladder, and male reproductive
organs.
Autonomy:-
Autonomy essentially means "self rule," and it is a patient's most basic right. As such, it is a
health care worker's responsibility to respect the autonomy of her patients. However, at times

10. this can be difficult because it can conflict with the paternalistic attitude of many health care
professionals. The following two cases address patient autonomy. The first involves the rights of
an individual to decide her own fate, even against her physicians' judgments. The second case
involves the rights of a parent to care for her child in the manner that she sees fit.
Case 1:
A woman enters the emergency room with stomach pain. She undergoes a CT scan and is
diagnosed with an abdominal aortic aneurysm, a weakening in the wall of the aorta which causes
it to stretch and bulge (this is very similar to what led to John Ritter's death). The physicians
inform her that the only way to fix the problem is surgically, and that the chances of survival are
about 50/50. They also inform her that time is of the essence, and that should the aneurysm burst,
she would be dead in a few short minutes. The woman is an erotic dancer; she worries that the
surgery will leave a scar that will negatively affect her work; therefore, she refuses any surgical
treatment. Even after much pressuring from the physicians, she adamantly refuses surgery.
Feeling that the woman is not in her correct state of mind and knowing that time is of the
essence, the surgeons decide to perform the procedure without consent. They anesthetize her and
surgically repair the aneurysm. She survives, and sues the hospital for millions of dollars.
Case 2:
You are a general practitioner and a mother comes into your office with her child who is
complaining of flu-like symptoms. Upon entering the room, you ask the boy to remove his shirt
and you notice a pattern of very distinct bruises on the boy's torso. You ask the mother where the
bruises came from, and she tells you that they are from a procedure she performed on him known
as "cao gio," which is also known as "coining." The procedure involves rubbing warm oils or
gels on a person's skin with a coin or other flat metal object. The mother explains that cao gio is
used to raise out bad blood, and improve circulation and healing. When you touch the boy's back
with your stethoscope, he winces in pain from the bruises. You debate whether or not you should
call Child Protective Services and report the mother.
Article 21:
The expansion of Article 21’s guarantee of the right to life and personal liberty, in the early years
of the PIL era, is now legendary. When it began, the purpose of this reading of Article 21 was to
move beyond the perceived limitations imposed by a textual interpretation of the clause, and
bring in socio-economic rights into Part III. Critiques of this judicial movement have focused
upon how this expansion reached absurd levels, effectively denuding Article 21 of meaning or
force. This is undeniable; nonetheless, as long as Article 21 was only used as a shield for
individuals against state action, the worst that could happen would be that it would become a
rather ineffective shield.
It is quite inevitable, however, that as Article 21 would grow larger and larger, it would
inevitably begin to come into conflict with other rights under Part III. The first serious conflict of
this sort occurred with R. Rajagopal’s Case in 1994, when privacy and free speech clashed. The

11. clash was sharpened in a series of cases in the late 90s and early 2000s, with the Court framing
the issue as one involving a balance between an individual’s Article 19(1)(a) right of speech and
expression, and another individual’s Article 21 right to privacy. There is nothing specifically
peculiar about this particular clash: the Supreme Court’s interstitial reading of privacy as an
aspect of Article 21 is among the more defensible aspects of its 21 jurisprudence, and the clash
between free speech and privacy has occupied constitutional courts all over the world.
To start with, there was absolutely no need for Article 21 to be brought into the picture. Free
speech jurisprudence has a well-known category called “time, place and manner” restrictions,
under which regulation that do not affect the content of speech, but merely how and in what
manner the right to speech is to be exercised, are not deemed to infringe the freedom of
expression. The underlying logic is obvious, and does not need explanation. Instead of relying
upon this argument, however, the Court decided to use a hugely expanded Article 21 as a sword,
and cited the right to a “peaceful, comfortable and pollution-free life” under Article 21 to defeat
the freedom of speech under Article 19(1)(a). The problem, of course, is that the phrase
“peaceful, comfortable and pollution-free life” is blissfully vague.
The perils of using Article 21 to restrict other rights under Part III are exemplified in the ongoing
“porn ban litigation” before the Supreme Court (Kamlesh Vaswani vs Union of India), where an
expansive reading of Article 21 is cited as one of the reasons for the Court to act upon
pornographic websites, in the absence of any law. Notice, however, that unlike privacy, which
remains a relatively narrowly defined right, the Kamlesh Vaswani petition draws upon a whole
host of constitutional provisions, including the non-enforceable Directive Principles, to justify
restrictions upon free speech (the two issues are not isolated – the expansion of Article 21 has
been accompanied by increasing recourse to the DPSPs and the “fundamental duties” chapter).
The Constitution of India provides Fundamental Rights
under Article 21:
These rights are guaranteed by the constitution. One of these rights is provided under article 21
which reads as follows:-
Article 21. Protection Of Life And Personal Liberty: No person shall be deprived of his life or
personal liberty except according to procedure established by law.
Though the phraseology of Article 21 starts with negative word but the word No has been used
in relation to the word deprived. The object of the fundamental right under Article 21 is to
prevent encroachment upon personal liberty and deprivation of life except according to
procedure established by law. It clearly means that this fundamental right has been provided
against state only. If an act of private individual amounts to encroachment upon the personal
liberty or deprivation of life of other person. Such violation would not fall under the parameters
set for the Article 21. in such a case the remedy for aggrieved person would be either under
Article 226 of the constitution or under general law. But, where an act of private individual
supported by the state infringes the personal liberty or life of another person, the act will

12. certainly come under the ambit of Article 21. Article 21 of the Constitution deals with prevention
of encroachment upon personal liberty or deprivation of life of a person.
The state cannot be defined in a restricted sense. It includes Government Departments,
Legislature, Administration, Local Authorities exercising statutory powers and so on so forth,
but it does not include non-statutory or private bodies having no statutory powers. For example:
company, autonomous body and others. Therefore, the fundamental right guaranteed under
Article 21 relates only to the acts of State or acts under the authority of the State which are not
according to procedure established by law. The main object of Article 21 is that before a person
is deprived of his life or personal liberty by the State, the procedure established by law must be
strictly followed. Right to Life means the right to lead meaningful, complete and dignified life. It
does not have restricted meaning. It is something more than surviving or animal existence. The
meaning of the word life cannot be narrowed down and it will be available not only to every
citizen of the country . As far as Personal Liberty is concerned , it means freedom from physical
restraint of the person by personal incarceration or otherwise and it includes all the varieties of
rights other than those provided under Article 19 of the Constitution. Procedure established by
Law means the law enacted by the State. Deprived has also wide range of meaning under the
Constitution. These ingredients are the soul of this provision. The fundamental right under
Article 21 is one of the most important rights provided under the Constitution which has been
described as heart of fundamental rights by the Apex Court.
What is a hysterectomy?
Hysterectomy is the surgical removal of the uterus. It ends menstruation and the ability to
become pregnant. Depending on the reason for the surgery, a hysterectomy may also involve the
removal of other organs and tissues such as the ovaries and/or fallopian tubes.
 A supracervical hysterectomy is the removal of the upper part of the uterus leaving the
cervix behind.
 A total hysterectomy is the removal of the uterus and cervix.
 A total hysterectomy with bilateral salpingo-oophorectomy is the removal of the uterus,
cervix, fallopian tubes (salpingo) and ovaries (oophor). If you haven't experienced
menopause, removing the ovaries will usually initiate it since your body can no longer
produce as much estrogen.
Why is a hysterectomy recommended?
Many women in the UK have a hysterectomy every year. Around one in five of all women have
a hysterectomy. Reasons for needing a hysterectomy include the following:
 Heavy or very painful periods. In some women, day-to-day life is made difficult because
of heavy periods. Sometimes the heavy bleeding can cause anaemia. There are various
other treatment options for heavy periods, including tablets and an intrauterine system
(Mirena® coil). If they don't improve the problem, hysterectomy is an option for
treatment..

13.  Fibroids. These are swellings of abnormal muscle that grow in the womb (uterus).
Fibroids are common and often do not cause any symptoms. However, in some women
they can cause heavy or painful periods. Some fibroids are quite large and can press on
the bladder to cause urinary symptoms. Prolapse. This occurs when the uterus or parts
of the vaginal wall drop down. This may happen after the menopause when the tissues
which support the uterus tend to become thinner and weaker. Endometriosis. This is a
condition where the cells which line the uterus are found outside the uterus in the
pelvis. This can cause scarring around the uterus, and may cause the bladder or rectum
to stick to the uterus or Fallopian tubes. Endometriosis may cause only mild symptoms,
but some women develop painful periods, tummy (abdominal) pain or have pain during
sex. Cancer. Hysterectomy may be advised if you develop cervical cancer, uterine
cancer, ovarian cancer or cancer of the Fallopian tubes.
MEDICAL NEGLIGENCE:-
In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969
SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that when a doctor
is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care
in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give,
and (c) duty of care in the administration of that treatment. A breach of any of the above duties
may give a cause of action for negligence and the patient may on that basis recover damages
from his doctor. In the aforementioned case, the apex court interalia observed that negligence has
many manifestations – it may be active negligence, collateral negligence, comparative
negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence,
hazardous negligence, active and passive negligence, willful or reckless negligence, or
negligence per se. Black's Law Dictionary defines negligence per se as “conduct, whether of
action or omission, which may be declared and treated as negligence without any argument or
proof as to the particular surrounding circumstances, either because it is in violation of statute or
valid Municipal ordinance or because it is so palpably opposed to the dictates of common
prudence that it can be said without hesitation or doubt that no careful person would have been
guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of
person or property, so constitutes.”
LABOR AND DELIVERY NEGLIGENCE:-
Most lawsuits arising out of labor and delivery negligence are brought against
obstetricians/gynecologists, labor and delivery nurses, anesthesiologists and other medical
providers who are alleged to have been negligent in the management of labor and delivery of a
child is damaged in the process. Most of these lawsuits do not include claims of negligence in

14. prenatal or postpartum care. Labor and delivery negligence can occur when a physician or
medical provider in the labor and delivery process had not correctly monitored the fetus during
labor for signs of oxygen deprivation. In addition, cases of negligence occur frequently where
there is a preterm delivery.
Labor and delivery negligence lawsuits can arise out of a doctor’s or nurse’s negligence during
childbirth. These errors may cause grave injury to the baby and harm to mother. The most
common errors associated with childbirth include the physician or obstetricians:
 Choosing not to anticipate birth complications because of the baby’s large size or because
the umbilical cord was tangled.
 Choosing not to respond to fetal distress that is identifiable by the fetal tracing monitor.
 Choosing not to order an immediate Cesarean section when it was appropriate.
 Mishandling the use of forceps or a vacuum extractor.
Labor and delivery lawsuits may arise claiming that the doctors and nurses were negligent in the
delivery process that led to the permanent brain injury to the child. Many of these cases are
brought years after birth to better identify the level of permanency of the birth injury which could
include brain damage and developmental, cognitive and behavioral problems of the child. In
some of these cases, the doctors in charge of labor and delivery misread signs and symptoms of
fetal distress or are insistent on attempting to induce labor with a synthetic hormone like
Oxytocin.
 Misdiagnosis of breast cancer, colon cancer or another form of cancer
 Misdiagnosis of stroke or failure to recognize widely recognized warning signs
 Failure to diagnose heart disease, arrhythmia or another life-threatening cardiac condition
 Serious emergency room errors leading to catastrophic injury.
Improper prenatal care or negligence during labor and delivery, which may lead to permanent
birth and brain injuries clinical negligence may include:
 . There is a clear obligation on a medical practitioner carrying out or arranging for the
carrying out of an operation, to inform the patient of any possible harmful consequence
arising from the operation, so as to permit the patient to give an informed consent to
subject him to the operation concerned. The extent of this obligation must as a matter of
common sense vary with what might be described as the elective nature of the surgery
concerned.
 The standard of care to be exercised by a medical practitioner in the giving of the
warning of the consequences of proposed surgical procedures is not, in principle any
different from the standard of care to be exercised by medical practitioners in the giving
of treatment or advice.

15.  Where there is a question of elective surgery which is not essential to health or bodily
well being, if there is a risk - however exceptional or remote - of grave consequences
involving severe pain stretching for an appreciable time into the future and involving the
possibility of further operative procedures, the exercise of the duty of care are owed by
the medical practitioner requires that such possible consequences should be explained in
the clearest language to the Plaintiff.
 Failing to diagnose your condition or making the wrong diagnosis.
 Making a mistake during a procedure or operation.
 Giving the wrong drug.
 Failing to obtain consent to treatment.
 Failing to warn about the risks of a particular treatment
 . There is a clear obligation on a medical practitioner carrying out or arranging for the
carrying out of an operation, to inform the patient of any possible harmful consequence
arising from the operation, so as to permit the patient to give an informed consent to
subject himself to the operation concerned. The extent of this obligation must as a matter
of common sense vary with what might be described as the elective nature of the surgery
concerned.
 The standard of care to be exercised by a medical practitioner in the giving of the
warning of the consequences of proposed surgical procedures is not, in principle any
different from the standard of care to be exercised by medical practitioners in the giving
of treatment or advice.
 Where there is a question of elective surgery which is not essential to health or bodily
well being, if there is a risk - however exceptional or remote - of grave consequences
involving severe pain stretching for an appreciable time into the future and involving the
possibility of further operative procedures, the exercise of the duty of care are owed by
the medical practitioner requires that such possible consequences should be explained in
the clearest language to the Plaintiff.
Hospital Liability for a Doctor's Negligence:-
Under normal circumstances, subject to variations which exist in many states, a hospital is not
usually liable for the actions of a doctor practicing in the hospital. This is due to a variety of
factors, but primarily because most doctors are not employees of the hospital, but rather are
independent contractors. If a non-employee doctor commits malpractice in the hospital, then the
injured party likely cannot hold the hospital responsible. If, however, the patient is led to believe
by statement, appearance or otherwise that the doctor is a hospital employee or representative,
some states may still find the hospital liable for the doctor’s malpractice.
Nurses, medical technicians, and other medical personnel usually are hospital employees and,
therefore, the hospital has responsibility for their actions. All of this is a brief overview, subject
to the law in your state which may be different, to understand why the emergency room may
require a different analysis:

16. The patient is going to an emergency room and not a specific doctor – The emergency room
is under the control of the hospital, which has responsibility to make sure that the medical
personnel on duty in the emergency room perform their duties in a reasonable manner;
Disclosure that a doctor is a non-employee – When a patient selects a doctor, part of the
process and paperwork usually involves a disclosure that the doctor is not an employee of the
hospital, but merely has privileges to practice there. Therefore, the hospital distances itself from
responsibility for the doctor’s actions. In an emergency situation, the patient is not choosing a
specific doctor but a care center and the hospital does not have the opportunity to inform the
patient of the non-employee status of the doctor. Hospital Malpractice and Negligence
Hospital malpractice causes thousands of injuries and deaths every year. Cases of medical
negligence often involve complex issues regarding emergency room care, surgery, intensive care
treatment, labor and delivery and medication errors. These cases require extensive medical
research, investigation and analysis
There's no question about it: hospitals can be dangerous places. Medical mistakes in the
diagnosis and treatment of hospital patients are unfortunately among the most common cases of
hospital malpractice seen by malpractice lawyers. Misdiagnosis of the patient's condition,
improperly interpreted diagnostic tests, negligently performed surgeries and medication errors
are all examples of medical negligence and can all have devastating effects on patients already
admitted to a hospital with an illness or injury. This can be considered hospital malpractice.
Understaffing of hospitals and overworking of hospital employees contributes to the dangers of a
hospital visit. Long delays in emergency rooms, as well as waiting for radiology tests and delays
in performing surgery can all permit a patient's condition to worsen. In addition, patients
frequently arrive at the hospital with one type of illness, and sustain an injury or infection in the
hospital that they never had before. Often these patients are in much worse physical condition
leaving the hospital than when they went in. Sometimes patients injured by a hospital in the case
of medical negligence require extensive treatments or multiple surgeries to recover.
Because hospitals often treat hundreds of patients at a time, serious medical mistakes can occur
due to the simple failure to check the wristband of a patient to make sure the patient is receiving
the proper medications or treatments. In addition, hospital staff is responsible for assessing each
patient's risk of falling, and for placing bedrails in the upright position for patients at high risk
for falls. The failure to take this basic precaution is hospital malpractice and if the patient falls
out of bed or is otherwise injured as a result, fractures, heart attacks, strokes and other life-
altering injuries could result.
Medical negligence cases are not always the result of the negligence or mistreatment of illnesses
or symptoms contracted outside the hospital. Infections contracted in the hospital setting
represent another area of hospital negligence. Hospitals have infection control departments
which set standards for infection protection and treatment. An infection acquired in a hospital is
called a "nosocomial" infection. These can include pneumonia, staph infections, or infections of
a surgical wound. Nosocomial infections should be treated aggressively, especially in patients
with compromised immune systems. Often this involves intravenous antibiotic treatment, which

17. may even continue once the patient is discharged from the hospital. In cases of medical
negligence, the failure to timely diagnose or treat an infection in the hospital setting can result in
systemic sepsis or worse.
Sending a patient home too soon is another common hospital mistake which can have tragic
results. Releasing patients who have exhibited signs of stroke, symptoms of heart attack, kidney
problems, blood disorders or untreated infections can also result in serious injuries, such as organ
damage and death.
Injury during birth often stems from a lack of oxygen to the brain. A fetus suffering from
intrauterine asphyxia will almost always show signs of distress. Doctors, nurses, midwives and
other labor and delivery professionals are trained to recognize symptoms of fetal distress and
react accordingly.
 If a healthcare provider falls below accepted standards in recognizing the signs of fetal
distress, irreversible injury can result.
 Technology, including an internal fetal heart rate monitor is a common tool in avoiding
permanent injury as a result of difficult or complicated labor.
 Our birth injury trial and settlement attorneys have handled hundreds of cases that
involve an allegation of secondary to negligent monitoring.
CLINICAL NEGLIGENCE MAY INCLUDE:-
 Failing to diagnose your condition or making the wrong diagnosis.
 Making a mistake during a procedure or operation.
 Giving the wrong drug.
 Failing to obtain consent to treatment.
 Failing to warn about the risks of a particular treatment
 There is a clear obligation on a medical practitioner carrying out or arranging for the
carrying out of an operation, to inform the patient of any possible harmful consequence
arising from the operation, so as to permit the patient to give an informed consent to
subject himself to the operation concerned. The extent of this obligation must as a matter
of common sense vary with what might be described as the elective nature of the surgery
concerned.
 The standard of care to be exercised by a medical practitioner in the giving of the
warning of the consequences of proposed surgical procedures is not, in principle any
different from the standard of care to be exercised by medical practitioners in the giving
of treatment or advice.
 Where there is a question of elective surgery which is not essential to health or bodily
well being, if there is a risk - however exceptional or remote - of grave consequences
involving severe pain stretching for an appreciable time into the future and involving the
possibility of further operative procedures, the exercise of the duty of care are owed by
the medical practitioner requires that such possible consequences should be explained in
the clearest language to the Plaintiff.

18. Most Interesting Indian Court Cases
State of Orissa vs Ram Bahadur Thapa (1959)
This is a bizarre one. Ram Bahadur Thapa was the servant of one J.B. Chatterjee of Chatterjee
Bros. firm in Calcutta. They had come to Rasogovindpur, a village in Balasore district in Orissa
to purchase aeroscrap from an abandoned aerodrome outside the village. Because it was
abandoned, the locals believed it was haunted. This piqued the curiosity of Chatterjee who
wanted to "see the ghosts". At night, as they were making their way to the aerodrome they saw a
flickering light within the premises which, due to the strong wind, seemed to move. They
thought it was will-o'-the-wisp . Thapa jumped into action as he unleashed his khukri to attack
the "ghosts". Turns out, they were local adivasi women with a hurricane lantern who had
gathered under a mohua tree to collect some flowers. Thapa's indiscriminate hacking caused the
death of one Gelhi Majhiani and injured two other women. The Sessions court judge however,
acquitted Thapa declaring that his actions were the result of a stern belief in ghosts and that in
the moment, Thapa believed that they were lawfully justified.
Kesavananda Bharti vs State of Kerala
If there's one reason India can still call itself 'the world's largest democracy', it is this case.
Swami Kesavananda Bharti ran a Hindu Mutt in Edneer village in Kerala but the state wanted to
appropriate the land. Bharti, who was consulted by noted jurist Nanabhoy Palhkivala, filed a
petition claiming that a religious institution had the right to run its business without government
interference. The State invoked Article 31 which states " no person shall be deprived of his
property save by authority of law. " A bench of 13 judges deliberated on the facts of the case and
through a narrow 7-6 majority, formulated the Basic Structure Doctrine, which puts some
restrictions to how much the Parliament can amend the Constitutional laws. In many ways, the
judgement here is considered to be a big middle finger to the then Central government under
Indira Gandhi. Soon after, the emergency followed.
Mohd. Ahmed Khan vs Shah Bano Begum (1985)
62-year old mother of five, Shah Bano Begum was divorced by her husband, Mohd. Ahmed
Khan. She filed a criminal suit against him in the Supreme Court and claimed alimony, which
was then granted to her. But then the Islamic orthodoxy protested the judgement claiming the
practice of granting alimony as anti-Islamic. The Congress government, which was in power
back then, succumbed to the pressure and passed the Muslim Women (Protection of Rights on
Divorce) Act, 1986 which diluted the Supreme Court judgement and further denied destitute
Muslim divorcees the right to alimony from their ex-husbands. This case is regularly mentioned
during talks about 'Uniform Civil Code' in the country.

19. Bhawal Case (1921-1946)
It's still regarded as one of India's weirdest identity cases. It mainly revolved around a possible
impostor who claimed to be the prince of Bhawal Estate, one which comprised over 2000
villages and was one of undivided Bengal's largest zamindari estates. Ramendra, the second
kumar of the Bhawal estate died in the early 20th century, but there were rumours about him not
really being dead. Ten years later, in 1921, a sanyaasi who looked a lot like Ramendra was
found wandering the streets of Dhaka. For some reason, the former tenants and farmers of
Ramendra vouched for this man and also supported his claim to the title. Almost everyone except
Ramendra's widow, Bibhabati, believed him. There was a long legal process involving two trials
where both sides attempted to prove their claims. In the meantime, the new Ramendra also
moved to Calcutta and where he was welcomed in the elite circles. He used to regularly collect
1/3rd of the estate revenue, which was his share. He used that money to support his lifestyle
while also paying the legal fees of the case. In the end, in 1946, the court finally ruled in his
favour, but soon after that he passed away due to a stroke he had suffered a couple of days
earlier.
Tarakeswar Case (1874)
This case was so (for lack of a better word) 'popular', that authorities had to sell tickets to let
people come inside the sessions court. And the story itself is nothing short of a blockbuster.
Nobin Chandra slit the throat of his 16-year old wife, Elokeshi, who was apparently having an
affair with the mahant of the local Tarakeswar temple. Even though Nobin Chandra handed
himself over to the police and confessed his crime, the locals were mostly on his side. The police
had to let him go after two years, even though he was serving a life imprisonment while the
mahant was arrested and put behind bars for three years. Alternatively, there were also rumours
that the mahant had raped Elokeshi on the pretext of helping her out with "fertility issues". This
case was really important for that time period because this was seen by the society as one of
those moments where the British rulers meddled in the affairs of the Bengali bhadralok and a
temple priest, something that was very rare back in those days.
10. Vishakha and Others vs. State of Rajasthan (1997)
Before the Vishakha Guidelines came in, the workplace was dangerous for many women
especially in case of sexual harassment. In 1992, Bhanwari Devi was gang-raped by upper caste
men in her village because she tried to raise her voice against child-marriage. Due to gross
negligence, the vaginal swabs collected from her body were taken 48 hours after the incident.
Ideally, it should be done so within 24 hours. Shockingly, the judge presiding over her case (this
was the seventh judge after six others were removed) acquitted the accused, even going so far to
say, " Since the offenders were upper-caste men and included a brahmin, the rape could not have
taken place because Bhanwari was from a lower caste. " Following the outrage over this
acquittal, Vishakha and some other women's groups filed a PIL against the State of Rajasthan

20. and the Union of India, forcing the latter to adopt the Vishakha Guidelines which now protects
working women all over the country.