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Today in a country like India which is said to be one of the largest democracy in the world where we, the citizens of India speak about the laws being gender neutral and with the development of the society with man and woman standing on the same ground everywhere with equal opportunities almost everywhere, gone are those days when women were said to be the household workers and men had to take the responsibility of being the bread earner for the family. The male domination has been reduced ever since and all laws have been made to upheld the integrity and reputation of a female in the society. Today, in my blog, I will be discussing about a pestering question which comes to my mind when I read the “POSH” provisions. POSH or as we know it ‘Prevention of Sexual Harassment’ was brought into force after the landmark case of Vishaka vs. State of Rajasthan. The question which my blog will deal with today is – Can a man initiate any sort of proceedings under such an Act if in case he is sexually harassed or bullied in any manner whatsoever. Ø The straight and general answer to such a question is a BIG NO. Ø A man cannot initiate any sort of proceedings for himself is in case he is sexually abused/harassed or bullied in any manner whatsoever. Ø The law in itself is not gender neutral as it expressly covers only women who are sexually harassed. The heading of the Act reads as ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’Ø It is clear from the above heading that this Act is implemented to protect Women and not men. Ø The answer to this question gets further clarity when we dig inside the ‘POSH’ Act.Ø The Jurisdiction of the Act extends to the whole of India as per section I of The POSH Act. Furthermore, it defines the term ‘aggrieved woman’ u/s 2(a) of the Act. Nowhere is there any mention of a term as ‘aggrieved man’ or ‘aggrieved person’ by which one can speculate that even a man can be subject to sexual violence and needs to be protected under such acts which once made should not be exclusively kept for the redressal of women. Ø This act not being a gender-neutral legislation fails to protect the ‘male victims’ of such sexual violence who do not find any sort of protection under the same. Therefore, the safeguards under such Act is for the women only and so to say it is also exclusive in its nature. Now the next question that comes to my mind is – ‘Can someone else file a complaint under the Act?’Ø The answer to that is a YES. If we look into section 9 (2) of the Act it does provide for someone else to file a complain provided that 1.      The aggrieved woman is unable to make the complain herself due to physical or mental inability or in case of death of such person.her legal heirs or any other person who is prescribed may file a complain on her behalf. However, the Act does not specify any other individual apart from a woman who can have the liberty to file a complain under the proviso of this Act. APPLICABILITY OF THE ACTTo answer the first question, I must say that we should look into the applicability of the Act as it will give us a clear idea of the people to whom such Act is applicable. When we read the applicability of the Act, we find that this Act is applicable only to women. An aggrieved woman can invoke the ‘POSH’ Laws but on the other hand if the victim of the same is a man then in such a circumstance he needs to rely on the company rules/regulations/policies and procedures because the ‘POSH’ Laws do not cover aggrieved men under its broad ambit and purview.INDIAN PENAL CODE IN RELATION TO ‘POSH’ LAW When we look into the Indian Penal Code, 1860 and relate the same to sexual offence we find a newly inserted section in the Penal Laws which deals with Sexual Harassment. Section 354A of The Indian Penal Code, 1860 deals with Sexual Harassment and it has also made it a ‘cognizable offence’. By making Sexual Harassment a cognizable offence one means to say that – A police at any time may arrest without warrant any such person who is charged under the above-named section. Section 354A in itself is not gender neutral as it levies the conduct of Sexual Harassment to a man whereas imposes the victimization of the same to a woman. The law makers did not feel the need to introspect into the idea that ‘Sexual Harassment’ in itself is a gender-neutral crime and anyone can be sexually harassed irrespective of their gender. The section reads as follows: - 1.     A man committing any of the following acts shall be deemed to be guilty of an act of sexual offence. a.      Physical Contact b.     Sexual Advances which are unwelcoming c.      Explicit Sexual overturesd.     Request for Sexual favorse.      Making Sexually colored remarks f.       Showing pornography content against the will of such person Such person shall be punished with rigorous imprisonment for a term extending to a maximum period of three years with fine or with both. Other than the above section there are other various sections of IPC which deal with offences of Sexual Harassment. Such as Section’s 354/354C/354D/375/376 and 509. CRITICISM OF THE ‘POSH’ ACTThere have been many criticisms about the said Act and most of which have been resolved in the Draft Bill of 2012. The major criticisms are as under: -1.     The Act did not cover women of the armed forces and those who are agricultural workers.As a result of which the terminology of the Act changed its clause to “No woman shall be subjected to sexual harassment at any workplace” as a result of which widening its scope to every woman in India and giving them protection under the Act. 2.     Another major criticism is that the bill does not cover or protect men in any way. Manoj Mitta of The Times of India complained that Bill does not protect men, saying it "is based on the premise that only female employees needed to be safeguarded.3.     There have been some tribunals who have commented on the constitutionality of section 4 and 7 of the said Act. PERSONAL OPINIONFrom the above it is very clear that a man under whatsoever circumstance cannot take any legal action under the ‘POSH’ Act. The Act in itself is not gender neutral and it believes female to be the weaker sex who can be exploited and hence need protection. It clearly sets an example whereby upon the bare reading of the provisions of the Act one can come to a conclusion that a female can never be the sexual offender however; she can always be the one who is sexually exploited. On the contrary the framework of such a legislation without prejudice categorizes a man as a sexual offender and fails to introspect a situation whereby even a man can be a victim to such a heinous crime, setting the legislation up as non-gender neutral, this Act formulates the policy that it is only the female employee or for that fact only a female who needs protection from Sexual Harassment and that men cannot be Sexually Harassed as they are always the one who are the force behind such Sexual Offences. Under any circumstance if a man becomes a victim of Sexual Offence whereby the wrong doer is a woman then in no circumstance is there any legislation which particularly protects the victimized male gender just like there is ‘POSH’ which protects the victimized female gender. The man needs to be at the mercy of company policies/bye laws/rules and regulations as there is no particular statute which gives any form of redressal to the victimized man.  

MEDICAL NEGLIGENCE CASES AND DOCTOR’S LIABILITY In my recent blog I shall be discussing the topic “Medical Negligence and Doctor’s Liability” My blog shall cover the following topics with in depth analysis for the readers to understand the essentials of the same. 1.     Introduction 2.     What is Medical Negligence 3.     Cases on Medical Negligence 4.     Doctor’s Liability in Medical Negligence 5.     Miscellaneous 6.     Conclusion INTRODUCTION It has been noticed recently that the Indian Society is experiencing a growing awareness of its patients’ rights.The Supreme Court of India has taken painstaking efforts as to make ‘Right to Health’ as a fundamental right. It is the need of the society to develop a protocol which states and checks the practice of Doctors while discharging their duties. Like any other profession, the medical profession is a service line industry which is stated to be of contractual nature. Such a contract is made between the Doctor and the Patient. However, explanation of the same is not that simple as it includes a lot of other variables making this relationship a bit more complex and complicated than the normal ones. There is a need for the code of conduct for the doctors and stabilizing their acts of professionalism. Unlike any other service line, doctors service is said to be next to god as they deal with the life of patients at critical moments and the life of a human is completely dependant on how they serve that patient. A lot of risk is at stake. Henceforth, the provisions should be made in such a manner that they understand the complexity of this nature and then punish. From the point of view of a patient one cannot deny the fact that wrong medications, wrong treatments, negligence in operation theatre and other various forms of negligent acts are present in the system of which the patient is the lone sufferer. To protect the same, the patients must have their rights and such wrong doers must be punished for their negligent acts. While discharging a duty one must be aware of the fact that there lies certain responsibilities and duties which need to be carried. Failure of which shall result in penalty and punishment. Also, one must have a duty of care towards his work and must also follow the ethical codes of conduct. In the recent present, the Indian Society has seen a massive growth by brainstorming into patients’ rights for negligent treatment. Based on the same and also taking into consideration the responsibility and the complexity of the service provided by the Doctors that, the judicial system has tried to make provisions whereby 1.     The patients have their rights if treated in a negligent way               AND 2.     The doctors are covered under an umbrella of safeguards which is essential to protect them according to the complexity of the service they provide to their patients. In my blog below I shall be discussing about aspects of Medical Negligence and the liability of a Doctor for the same. The topics mentioned above shall be discussed in a chronological order to provide a step by step guide for suitable understanding of the readers. WHAT IS MEDICAL NEGLIGENCE?Before going into the details of what is “Medical Negligence” let us understand what is “Negligence” as a term. So, what is negligence? What exactly does one mean when he says someone has been negligent? NEGLIGENCENegligence can be termed as an omission to do something or not to do something under certain circumstances which an ordinary man having reasonable prudence would do. In other words, “Negligence” means to avoid a Duty of Care which should have been taken while discharging the work. In simpler words “Negligence” would mean to not take care or to behave irresponsibly. The term “Negligence” is far too broad to explain. What may not be negligence to me, might be negligence to you and vice versa. Negligence is circumstantial in nature and depends upon the situation. For example: If it is a rainy season and “X” does not lock the windows before going out of the house as a result of which his bed gets wet. “X” would be held to be negligent as he should have shown a duty of care to close the windows. However, under the same circumstances had it been a dry summer day, “X” would not be termed negligent. Having said that and now that we have understood the concept of Negligence let us understand what constitutes Negligence. So, to say what are the factors which must be taken into consideration before coming to a conclusion of an act of negligence. There are 5 basic elements that constitute negligence. It is upon the consideration of these elements that one can conclusively decide whether an act includes negligence or not. The elements have been discussed below. 1.     Duty to take care Negligence depends upon whether or not the defendant owed a duty towards the plaintiff. If there was no duty there cannot be Negligence. In case of Doctors, every doctor has a Duty to take care of its patient and as such is subject to being negligent if he fails to do so.2.     There should be a Breach of Duty Negligence cannot be determined without a breach of duty. By breach of duty one means to do something which he was not supposed to do or to not do something which he was supposed to do under the given circumstances which, if it had not been him then, any reasonable man having ordinary prudence would do. In case of Doctors, every Doctor should be aware of his duty and should discharge the same in similar manner. Any deviation [which would not be taken in the ordinary course of action] shall be held to be breach of such duty. However, it must be stated that – If a particular patient can be treated in two different ways and a particular doctor follows such mode of treatment with due diligence and standard of care and even then, the patient suffers. [In such a case the doctor shall not be held liable for choosing option 2 over option 1]3.     Cause in Fact This is the traditional rule of negligence that, in order to prove the negligence, the plaintiff much prove that the action of the defendant which is said to be negligent in nature is the actual cause or the cause in fact for the plaintiff’s injury. Had such action not been taken, the plaintiff would never have suffered such injury. That such injury is directly related to the defendant’s act. In case of Doctors, the plaintiff must be able to prove that the action or course of action for the treatment or medication of such patient was the reason for which he or she has suffered injury. However, if the plaintiff fails to establish the same, the Doctor shall not be held liable for negligence. 4.     Establishment of Proximate Cause This relates to the extent of the scope of a defendant’s responsibility in a negligent case. The defendant is only and only responsible for his negligent acts and the proximate cause of them which would injure the plaintiff in direct connection with such act of negligent nature. Furthermore, the defendant shall be held liable only for those damages suffered by the plaintiff which were foreseeable by the defendant. Any damage suffered by the plaintiff outside the scope of the risks which the defendant could have foreseen cannot be proved as a “Proximate Cause”. In case of Doctors, the onus is on the plaintiff to prove that the negligent act of the defendant has proximate cause in the injury suffered by him. Such cause should have been foreseeable by the defendant while discharging his duty.5.     Damages CausedIn order to prove negligence, Damage must be proved. It is an essential and most important element, without which negligence cannot be proved. It is not enough by the plaintiff to merely prove that the defendant did not take reasonable care to prove negligence. In fact, such avoidance of reasonable care on the part of the defendant must result in some actual damage to either Body or Property of a person to whom the defendant owed such duty of care. In case of Doctors, the damage must be showed as bodily harm or physical injury suffered by the plaintiff as a result of some negligent act done by the defendant which is in direct connection with the injury suffered by the plaintiff and the same was foreseeable by the defendant. To sum up from the above, I would say: “Medical Negligence” is when a Doctor/Medical Practitioner who happens to owe a duty of care towards his   Patient, breaches the same by way of some misconduct or negligent act, as a result of which the Patient has suffered damages/injuries which are of physical nature, which establish proximate cause and such damages/injuries caused thereof were foreseeable.CASES ON MEDICAL NEGLIGENCE After already knowing what Medical Negligence is all about let us look at the practical examples and the views which have been taken by the courts to arrive at a conclusive decision on cases of Medical Negligence. Here I shall be discussing a few of the landmark cases regarding Medical Negligence, its implications and impacts. LIABILITY UNDER THE CONSUMER PROTECTION ACTCASE – INDIAN MEDICAL ASSOCIATION vs VP SANTHAØ In the above case, medical profession was brought under the purview of ‘service’ as has been defined in the Consumer Protection Act, 1986. Ø This case also played a pivotal role in defining the relationship between a Doctor and his Patient as contractual. Ø Aggrieved Patients now had the right to sue to the Doctors in the Consumer Courts and claim compensation. Ø The Safeguard to the Patients under this Act is available only if they have paid for such service. However, if for some reason, such payment is waived off due to the incapacity of the Patients financial position to pay the same it will be covered under this Act. Ø Any service rendered free of cost or for a nominal registration fee shall not be covered under the scope of this Act. CIVIL LAW AND NEGLIGENCE CASE – STATE OF HARAYANA vs SMT. SANTRAØ The Supreme Court of India held that – “Every doctor has a duty to act with reasonable degree of care and skill” CASE – INDIAN MEDICAL ASSOCIATION vs VP SANTHAØ The Supreme Court of India held that – “Doctors are not liable for their services individually or vicariously if they do not charge fees. Thus, free treatment at a non-government hospital, governmental hospital, health centre, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) (0) of the Consumer Protection Act, 1986.”CASE – DR. LAXMAN BALAKRISHNA JOSHI vs DR. TRIMBAK BAPU           GODBOLEØ The Apex Court had held that – If a proper practice has been adopted by a doctor which is considered to be proper by reasonable body of medical practitioners and professionals who are skilled in that particular field of expertise, then, in that case, such doctor shall not be held negligent due to the mere fact that something went wrong. CASE – DR. JANAK KANTIMATHI NATHAN vs MURLIDHAR EKNATH                            MASANE Ø The NCDRC applied the principle of “res ipsa loquitur” and arrived to the decision as the prima facie case proved that the accident which occurred could in no way have taken place without the negligence of the Doctor. CRIMINAL LAW AND NEGLIGENCE CASE – POONAM VERMA vs ASHWIN PATELIn the above case, the Apex Court distinguished [negligence, rashness and recklessness] wherein it was held that – “Any conduct falling short of recklessness and deliberate wrongdoing should not be the subject of criminal liability”.Ø On the basis of the above, a Doctor could not be held criminally liable for his acts or for a patients death until and unless it is shown that he was negligent/incompetent till such an extent that he had no regards for the life and safety of his patient and as such it amounted to a crime against the state. CASE – CALCUTTA MEDICAL RESEARCH INSTITUTE vs BIMALESH CHATTERJEE Ø Held that – The onus of proving negligence and the resultant deficiency was on the complainant and not on the defendant. CASE – KANHAIYA KUMAR SINGH vs PARK MEDICARE & RESEARCH CENTREØ Held that – The proof of negligence has to be established and it cannot be presumed. DOCTORS LIABILITY IN MEDICAL NEGLIGENCE It is needless to say that Doctors are both jointly and severely liable for the acts done in the operation theater as a result of which if the patient is the ultimate sufferer then they should be penalized and scrutinized for the same. Looking at the complexity of such service it was not easy to pack such negligence under one head or one tab. Therefore, the courts have opened a variety of options whereby the aggrieved persons can get the relief. The liability of a doctor is broadly classified into 4 heads. Ø Liability under the Consumer Protection Act/Contractual Liability/Service Liability Ø Tortious Liability Ø Criminal Liability      ANDØ Civil Liability  CONTRACTUAL LIABILITY/SERVICE LIABILITY The liability of a Doctor is restricted to the meaning of the term “Service” as specified under the Consumer Protection Act, 1986. As it has already been discussed above, the services provided by a Doctor to its patient comes under the ambit and scope of “Contract for Service”. However, such contracts are personal in nature but still cannot be treated as a contract for personal service. Therefore, bringing the services of a Doctor under the scope of Consumer Protection Act, 1986. Having that said it should also be mentioned here that a “Contract for Service” is beyond the scope and ambit of Section 2(1)(o) of the said Act. Therefore, any patient who has been treated free of cost by any doctor shall not be allowed to sue the doctor for being negligent as there was no consideration. Even if there was a nominal registration charge for the same it is disallowed to get a relief here. TORTIOUS LIABILITY It is again a well stated fact that – The Law of Tort starts from the point where The Consumer Protection Act ends. Under The Law of Tort, medical practitioners who give free service to the patients are also brought under the cover and subject to liability if found guilty of negligence. Those services provided by doctors or medical practitioners which do not fall under the meaning of “Service” as defined in The Consumer Protection Act, 1986 have all the liberty to take recourse [if aggrieved] under The Law of Tort and can claim compensation. However, the onus of proof is on the Patient and it is he who has to prove the negligence of the Doctor. CRIMINAL LIABILITY Under certain circumstances a Doctor can also be held Criminally Liable for his acts. Criminal Liability is attracted in cases of [Gross Negligence, or Recklessness]. The Doctors can be punished under the following provisions of The Indian Penal Code, 1860Ø Under Section 304A [IPC] – For causing death of a patient by rash or negligent act. Ø Under Sections 319 to 338 – For Causing Hurt/Grievous Hurt/Miscarriage etc.However, criminal proceedings against a Doctor cannot be brought about so easily as the judiciary finds it fit to state that Doctors are the professionals who work in and out on a daily basis to give life to their patients and as such they can never have such intentions to hurt them leave apart killing them or being the cause of their death. The Doctors are presumed to be bona fide who are always acting in good faith in the best of the interest of their patients. As such they are entitled to certain immunity from criminal proceedings under the following sections of The Indian Penal Code, 1860 Sections 87 to 92 of the Code provide immunity to those doctors who have acted in good faith for the benefit of the patient. However, such good faith must be proved as and when required. CIVIL LIABILITYA doctor can be held liable for negligence in a civil case. The courts have taken into consideration that what act of a doctor should be held as civil liability and what shall extend to the criminal liability. Stating Paragraphs 12 to 16 of the case of Jacob Mathew, The court has said that – An act of simple negligence will result only in civil liability and only damages can be imposed on the doctor for such act of simple negligence by either the Civil Court or by the Consumer FORA. The matter of deciding what is simple negligence and what is gross negligence has been left to the sole discretion of the court which shall decide the same on a case to case basis, depending upon circumstances, treating every such case as a fresh one and acting upon the same independently without prejudice, keeping the sanctity of justice. MISCELLANEOUSIn this Final Topic of discussion, I shall discuss the following 1.     Defenses for Medical Negligence 2.     Where to seek redressal 3.     Guidelines Issued by the Apex Court 4.     Liability of Hospitals DEFENSES FOR MEDICAL NEGLIGENCEThere are quite a few defenses which are used to safeguard a Doctor from frivolous litigation's of Medical Negligence. They are: 1.     Known Complication – If in any case during the treatment there is a certain complication, as a reason of which it is well known to the doctor and the patient or so his/her family that such complication during the course of treatment may result in death of the patient and that they consent to the same and still go forward with such treatment knowing well that the result of such treatment may or may not be fruitful, The doctor cannot be held responsible for the same. Or in a case where certain known complications arise out of which a mishap took place, even then the Doctor cannot be held responsible. 2.     Difference of Opinion – If under any circumstance a particular doctor has two options to chose from say “A” and “B”, both of which are well recognized methods of treatments in the medical fraternity, then, the Doctor cannot be sued merely because of the fact that he chose option “A” over “B” or vice versa.3.     Unexpected Results – In a case whereby during the course of treatment there has been some unexpected results which the doctor had no clue of. Or for that reason any doctor having the same area of expertise could not have foreseen the same or could have analysed the same. Or that a doctor having ordinary prudence, reason and logic could in no manner deduce such an outcome, in such a case, the doctor cannot be held liable for such unforeseen and unexpected results.4.     Contributory Negligence – If under any circumstance the court finds that the claim of negligence levied upon the doctor is not totally the negligent act of the doctor but has some contribution of negligence of the patient itself, in such a case a doctor shall be held liable only for that part or percentage of negligence which the court feels fit for the doctor and nothing more than that contribution of negligence. 5.     Emergency Care – In case of Emergency Care, a doctor can use this as a defense to defend himself from the charges of being negligent. However, the onus is upon the Doctor to prove that the particular case was a case of Emergency Care as it is, he who is using claiming such defense and it should be he who should prove the same. WHERE TO SEEK REDRESSAL?The Consumer Dispute Redressal Agencies, more popularly known as Consumer Forums have been created at the district, state and at the national level. The COPRA, 1986 provides for a 3-tier grievance redressal mechanism. They are: 1.     NCDRC [NATIONAL FORUM]2.     SCDRC [STATE FORUM]3.     DCDRC [DISTRICT FORUM]Ø The reply of the respondent must come within 45 days after the service of the notice to him and such reply is compulsory in nature, failing which the matter can be thereafter proceeded “ex – parte”Ø Appeal to be filed within 30 days from the date of adjudication of such lower forum to a higher forum.Ø The verdict of the NCDRC can be further challenged in the Apex Court [Subject to the period of limitation]The Consumer Forums have a Disposal Percentage of 91.03% all over the nation and a total of 44,47,487 cases have been disposed off out of 48,85,877 cases which were filed since the inception of COPRA, 1986. GUIDELINES ISSUED BY THE APEX COURTØ Any complaint against a Doctor received by the NCDRC/SCDRC/DCDRC or any Criminal Court must refer it to an expert body to confirm the allegations. Ø Only when it is “prima facie” found after such confirmation that the act was of negligence by the doctor should the police be allowed to arrest such doctor and a notice should be issued for the same. LIABILITY OF HOSPITALSWhen we talk about medical negligence, we do not only mean negligence by Doctor/Doctors. It sometimes may also happen that the Hospitals are responsible for negligence as a result of which the patient could not be treated properly. The liability of the Hospitals can be Ø Direct – where there is a deficiency of service by the Hospital during the course of the treatment, as such making it unfit for treatment.          ORØ Vicarious – Liability of the Hospital [Employer] for the wrongful acts of its workers [Employee] who are working for the Employer [Hospital].The latin maxims “qui facit per alium facit per se” and “respondent superior” shall be applicable here which means “qui facit per alium facit per se” – He who acts through another does the act himself. “respondent superior” – Let the master answer. Some conditions where the Hospitals are directly liable are given below: 1.     Improper maintenance of Hospital 2.     Not being able to provide safe and healthy environment 3.     False claims of available facilities, malfunctioning equipment’s, incompetent staff, deficiency in service, malpractice etc. 4.     Improper maintenance of records by not complying with the regulations of The Medical Council of India Regulations, 2002. CONCLUSION In the recent times, the Indian society has seen a massive growth and awareness relating to the rights of a patient. The Medical Profession is seen to be the most noble of all the professions in the world as it is only after GOD that a Doctor can give a new life to a Patient. As the known idiom goes “God is unerring”. But in reality, a Doctor is as much a human as we are and again as this idiom very truly justifies the same “to err is human”. Hence, they will commit mistakes. The cases of medical negligence have increased by an astounding rate of 400%!!!!! In the past few years in India. In the case of Delhi Max Hospital, Shalimar Bagh, lost its license for declaring an alive new-born child to be stillborn. Gurgaon’s Fortis Memorial Research Institute for the death of a 7-year old girl who suffered from dengue, have once again brought up the issue of rampant medical negligence in India in private and public hospitals.In the light of the above it has become a dire need to establish standards of practice for the Doctors and also safeguard the same. It is very complex to determine how do you hold a person responsible for your losses when he himself is doing his best to save you from the same. Having said that the law in force has tried to keep both the interests of the doctors and the patients very well-defined compromising none when it comes to litigation. On one hand it gives the Patients the right to sue a doctor for its wrongful acts and on the other hand it also immune's a Doctor knowing well that his act is a humane one relating to the most complex of natures going to the extent of “bringing one back from the dead”. Nevertheless, they are humans who are bound to make mistakes and as such the provisions should not be too harsh on them only because they belong to a certain profession.