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Article Published in the Express Magazine Dated
January 12, 2003
General Attorney : Rajiv K. Luthra
A close relative of mine was operated recently
for removal of uterus through laproscopy. Due to
medical negligence on the part of the surgeon, she
was in the ICU and has since been in hospital. We
have spent nearly Rs. 10 lakh and the bills are
adding on, leave alone the mental trauma. Can we
file a case against the surgeon for medical
negligence and claim the money spent?
Anonymous
You may file a complaint with the Consumer
Disputes Redressal Forum claiming damages on
grounds of medical negligence. Remedy against
medical malpractice or negligence is available
under the Consumer Protection Act, 1986 (Act), to
the affected persons as consumers for deficiency
in service. The Hon’ble Supreme Court has held
that service rendered to a patient by a medical
practitioner by way of consultation, diagnosis and
treatment both by medicinal or surgical would fall
within the definition of services as provided
under the Act, although, this definition excludes
those medical services rendered free of charge to
every patient under a contract of personal
service.
A claim such as this can be filed where the
medical service rendered suffers from negligence
and want of reasonable skill and care. Although it
may be pointed out that a doctor would be guilty
of negligence only when he has fallen short of
standard of reasonable medical care. In every case
of medical negligence, it is for the complainant
to prove that there was infact negligence on the
part of the doctors / authorities in providing
services, as a consequence of which, he has
suffered loss or injury.
Under the Act, the remedy available to the
aggrieved person is by way of seeking
compensation, which is made on the recognised
principles governing the quantification of damages
or compensation and not arbitrarily. The
compensation has to be quantified on a rational
basis on a consideration of materials produced
before the adjudicating forum showing the extent
of injury suffered and the manner and extent to
which monetary loss had been caused. Damages for
mental stress can also be prayed for.
Medical professionals can also be sued under the
law of contract for failure to take reasonable
skill and care. Courts would indeed be slow in
attributing negligence on the part of a doctor if
he has performed his duties to the best of his
abilities. But in cases where the doctors act
carelessly, negligently and in a manner, which is
not expected of a medical practitioner, an action
in torts would also be maintainable.
I have testified and signed necessary papers
for divorce by mutual consent in November 2002 and
handed them to my wife's attorney in her presence.
I have no information on whether they have been
filed in court or not. Is it possible for my wife
to use these documents any time hereafter, or will
they become null and void after a pre-determined
statutory period of time?
J. Chinoy
Your query is being answered under the presumption
that you are a Hindu and governed by the Hindu
Marriage Act, 1955 (Act).
There is no limitation per se for the validity of
the papers signed by the parties for a divorce by
mutual consent.
However, the mere filing of the petition does not
enable the parties to obtain a decree for divorce
as the parties are required to appear before the
court after filing the petition for divorce by
mutual consent. Thereafter, under sub-section 13-B
of the Act the parties are required to make
another joint motion not earlier than six months
after the date of presentation of the earlier
petition for fast motion and not later than
eighteen months after the said date. This motion
enables the court to satisfy itself about the
genuineness of the averments made and proceed with
the case. In this transitional period of six to
eighteen months, either party may change its mind
and may not then be a party to the joint motion as
contemplated by the section, which requires the
court to hear the parties – which means both the
parties. If either party at the stage of inquiry
withdraws his/her consent, the court gets no
jurisdiction to make a decree of divorce. The
consent must continue to decree nisi and must be
valid and subsisting consent when the case is
heard.
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