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Article Published in the Express Magazine Dated
June 10, 2001
General Attorney : Rajiv K. Luthra
I am a doctor, running a private practice.On
the basis of the symptoms noticed in a patient, I
recommended a liver biopsy for him. The results of
the biopsy, however, were negative. Now the
patient has sent me a legal notice for the
harrassment which he had to suffer during the
painful biopsy. Please advise me on the legal
implications that may arise in such cases ?
Dr. S., Calcutta
A doctor has certain duties towards his patient,
including doing a correct diagnosis and
accordingly, deciding on the treatment to be
given. While doing this, a doctor is expected to
exercise a reasonable degree of skill and
knowledge. The law does not require the highest
degree of competence from a medical person. He is
answerable when he falls below the standard
required of a reasonably competent medical person
or if he departs from the normal course. If a
patient's condition is wrongly diagnosed or
insufficient care is taken or the treatment given
is wrong, the patient can file a claim for
deficiency of service and/or for recovery of
damages.
If a doctor decides on a particular treatment for
a patient, it can be assumed that it is in good
faith and based on well-settled principles of
medical practice. The onus is upon the patient to
prove that the doctor was negligent while doing
his diagnosis or giving the treatment. Further, he
has to prove that the doctor’s negligence caused
the injury of which the patient complained.
Negligence is broadly defined as a breach of legal
duty expected out of a skilled person (in this
case, the doctor) resulting in damage to the
patient. After the patient discharges the onus, it
is for the doctor to prove that due care was taken
in administering the tests and that these tests
were necessary.
Acts done by a doctor, and which cause bodily
harm, can also be looked at as a criminal offence,
if the intention to cause bodily harm can be
proved. But an act done in good faith, not
intending to cause harm, does not constitute an
offence under the provisions of the Indian Penal
Code, 1860.
I am working in a company which is soon to
merge with another company. My colleagues and I
are worried whether our employment contracts will
continue after this. Does the law protect the
employees in an amalgamation?
R. Chakravorty, Mumbai
A scheme for an arrangement or compromise
regarding an amalgamation under the Companies Act
involves transfer of the entire assets, rights and
liabilities of the amalgamating company to the new
company. This new company becomes liable to the
creditors of the amalgamating company to the
fullest extent when the scheme takes effect.There
is no provision of law which provides compulsory
or automatic transfer of the employees of such an
undertaking. A worker is not a creditor or a
member under the definition of the Companies Act.
That being the legal position, he does not come
into the picture of a compromise or arrangement
between the company and its members and creditors
as provided in the Companies Act. But the Court,
which sanctions such a scheme, has enough
discretion and power to see that the scheme works
without hardship to the employees. In considering
any scheme proposed, the Court normally takes into
account its effects on the worker’s or employees
as an element of public interest.
Courts have held that the scheme should provide
the taking-over of as many of the existing staff
as possible and as could reasonably be taken over
by the transferee company. Those employees who
could not be taken over should be paid by the
transferor company all money due to them under the
law.
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