Medical negligence is not a simple tort. It poses a serious danger to the life of a patient who is already in need of care. The only person on whom he places his trust and confidence, if proves to be negligent, puts a question mark in our minds that if the doctors are negligent them whom to trust. Many a times, doctors are trusted next to God in curing the disease of a patient. Therefore, a great degree of carefulness is expected from a doctor who professes the special skill to treat patients.
With the growing number of cases, medical negligence attracts to answer its various aspects. Questions like what are the standards of duty which is expected, to what extent the doctor can be held liable, whether a patient has a right to sue a doctor who wanted to cure him but acted negligently, whether all patients who did not recovered can sue the doctor, who will prove negligence on the part of the doctor and the hospital patients, are the patients a consumer of the services of the doctor, can a doctor can take the plea that he acted to the best of his abilities, are needed to be answered.
The number of cases medical negligence is growing with the number of varied treatment available which can be opted for. This term papers broadly deals with the various aspects of medical negligence in the light of definition of standard of care required, the duty of the doctor, the burden of proof etc.
A comprehensive appraisal of various cases has been done to find out various judgments of the Supreme Court. Recently, Aruna Case drew our attention towards the concept of euthanasia which is still an offence in India has also been covered to find out the extent to which it is prohibited and what are the guidelines of the Supreme Court in this regard.
The Concept of Negligence
Negligence implies absence of intention to cause the harm complained of. It means careless or unreasonable conduct. But merely unreasonable conduct without damage is not actionable though it may be a punishable offence. Such conduct when followed can cause harm to another gives rise to liability for negligence. It may be pointed out that negligence may mean a mental element in tortuous liability or it may mean an independent tort.
Basically there are two theories about the negligence in the law of tort.
1. Subjective Theory- According to this theory of Salmond, negligence denotes ‘State of mind’. This state of mind varies from person to person and the person is liable only for his intentional acts only and not otherwise. It involves a personal element. If a person has acted to the best of his ability then he cannot be held liable for negligence.
2. Objective Theory – According to this theory of Pollock, negligence is a type of conduct which a reasonable man can avoid with a reasonable degree of care and caution.
Therefore, negligence can be broadly seen in two perspectives. The ‘objective theory’ gives an independent identity to the concept of ‘negligence’ in the law of tort. Medical negligence, in today’s context cannot be seen just as a ‘state of mind’. A person when goes to a doctor expects a certain degree of care and caution from him which is implicit in the services provided by him. A doctor cannot escape from the liabilities taking the excuse that he acted to the best of his abilities. His abilities are supposed to match the abilities of a doctor who is professing the same service to a reasonable degree.
Negligence has been recognised as independent tort by the House of Lords in the case of Donoghue v. Stevenson in 1932. This case treats negligence as a type of conduct and not a particular state of mind. The tort of negligence is therefore, complex and fluid because in determining the liability in negligence, issues like duty, care, causation, remoteness of damage are to be analysed in any given case.
Definition of Negligence
According to Winfield, “Negligence as a tort is the breach of the legal duty to take care which result in damage, undesired by the defendant, to the plaintiff.”
This definition involves three constituents of negligence:
1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty.
2. That the defendant committed the breach of the said duty.
3. That the plaintiff suffered consequential damage due to the breach of duty.
4. That the consequences were undesirable.
Therefore, basically these 4 elements are to be checked in a tort of negligence. Although, Lord Mc Millan in Donoghue v. Stevenson stated that categories of negligence are never closed.
Duty covers wide range so wide is the duty is, the court is to decide. It is impossible to give one general, comprehensive definition of negligence as it arises from a number of relationships.
The Concept of Medical Negligence
Every person who enters into a particular profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He requires a particular level of learning to be a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. A medical professional does not assure his patient of the result.
A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what all, the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in the given case, the skill which he did possess.
A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.
Such a person when consulted by a patient owes him certain duties:
1. A duty of care in deciding whether to undertake this case.
2. A duty of care in deciding what treatment to give.
3. A duty of care in the administrating that treatment properly.
A breach of any of these duties gives a right of action for negligence to the patient.
Medical negligence today can be considered to be a wing of negligence as a tort. With the growing number of cases of medical negligence, it has acquired itself attention of the lawmakers. Recently there has been a major increase in the cases of gross medical negligence which calls for some immediate strict laws to be made in this regard.
The Concept of Res Ipsa Loquitor
The rule that it is for the plaintiff to prove negligence of the defendant may cause hardship to the plaintiff if it is impossible for him to know what precise acts or omissions led to his injury or damage, and this is most obviously so, where the cause of the damage is peculiarly within the means of knowledge of the defendant who caused it. In these circumstances this hardship can be avoided by the application of the maxim ‘res ipsa loquitor’. The maxim is not a principle of liability but a rule of evidence. It means that a thing speaks for itself, i.e., the facts and circumstances which the plaintiff has proved established a prima facie case of negligence against the defendant. The requirement is that mere happening of the accident should tell its own story and raise the inference of negligence on the part of the defendant.
Winfield, while quoting the famous statement of Earl, C.J., in the case of Scott v. London and St. Katherine Docks Co. , stated that there are two requirements for applying the maxim of res ipsa loquitor:
1. That the thing causing the damage be under the control of the defendant or his servant - The first requirement is that the happening of the accident must be evidence of negligence on the part of the defendant or of someone for whose negligence he is responsible. A mere right to control, as opposed to actual control, is sufficient. It is not always necessary that all the circumstances be under the defendant’s control. But if the events leading up o the accident were under the control of others besides the defendant then the happening of the accident is insufficient evidence against the defendant.
2. That the accident must be such as would not in the ordinary course of things have happened without negligence – If the fact of the accident itself justifies the inference of negligence, then it means not only that all the circumstances must be considered, but that they must be considered on the light of common experience and knowledge. In effect the judges take notice of the common experience of mankind.
The doctor has discretion in choosing the treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. The doctor “must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.”
The Supreme Court in Achutrao Khodwa v. State of Maharashtra laid down the law as follows: “The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. 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 ability and with due care and caution. Medical opinion may differ with regard to the course of manner which is acceptable to the medical profession and the court finds that he has attended on the patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. The Supreme Court also held that the principle of res ipsa loquitor may apply in certain cases. In the case of Achutrao a towel was left inside a woman’s peritoneal cavity while she was operated for sterilisation in a Government hospital causing peritonitis which resulted in her death. The conclusion of negligence was drawn against the doctors by applying the principle of res ipsa loquitor and the Government was vicariously liable.
Similarly in Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff got herself operated for the removal of her uterus in the defendant hospital. During operation, abdominal pack was left in the abdomen. The same was removed by a second operation. Leaving foreign matter in the body during operation was held to be a case of res ipsa loquitor. The doctor who performed the operation and the hospital were held liable to pay compensation of Rs. 5, 80,000 to the plaintiff.
The maxim res ipsa loquitor acts as a rescuer for the complainant by easing their burden of proving the negligence of the doctor of the hospital authorities in the cases of gross negligence which is manifest in the very act of the doctor itself. It is a relief for the patients who have been a subject of such gross negligence.
THE STANDARD OF CARE REQUIRED: THE BOLAM TEST
Under the English Law as laid down in Bolam v. Friern Hospital Management Committee, a doctor, who acts in accordance with a practice accepted as proper by a responsible body of medical men, is not negligent merely because there is a body of opinion that takes a contrary view. In Bolam’s case, Mc Nair, J., in his summing up of jury observed: “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standard of reasonably competent medical man at that time. There may be one or more perfectly proper standards and if he conforms to one of these proper standards, then he is not negligent.” The above test laid down by Mc Nair,J., has been repeatedly approved by the House of the Lords. The test covers the entire field of liability of a doctor namely liability in respect of diagnosis; liability in respect of a doctor’s duty to warn his patients of risks inherent in treatment, liability in respect of operating upon or giving treatment involving physical force to a patient who is unable to give his consent; and liability in respect of treatment.
Bingham L.J. in Eckersley v. Binnie , summarised the Bolam test in the following words:
From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.
The degree of skill and care required by a medical practitioner as explained in Halsbury’s Law of England is:
1. “The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
2. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown:
(a) that there is a usual and normal practice;
(b) that the defendant has not adopted it
(c) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”
3. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze or mop inside the patient after an operation vide Achutrao Haribhau Khodwa v. State of Maharashtra or operate on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
4. There is a tendency to confuse a reasonable person with an error tree person. An error of judgment may or may not be negligent. It depends on the nature of the error.
5. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports he decision as reasonable in the circumstances.
6. “In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men. The true test for establishing negligence in diagnosis or treatment on their part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...”
7. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.
8. The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient, rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure.
9. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. Science advances by experimentation, but experiments sometime end in a failure e.g. the operation on the Iranian twin sisters who were joined at the head since birth or the first heart transplant by Dr.Barnard. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent.
10. Simply because a patient has not favourable respondent to a treatment given by a doctor or a surgery has failed the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
The decision of House of Lords on Maynard v. West Midlands Regional Health Authority , by a Bench consisting of five Law Lords has been accepted as having settled the law on the opinion which considers that decision of the defendant professional was a wrong decision, if there also exist a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper.
Bolam Test – A Revisit
Bolam test though has been a good test in determining the negligence of the doctors has also been a source of problems later, like –
1. What is ‘proper practice’?
As in Bolam case it was held that if a doctor acted in accordance with a practice accepted as proper, he cannot be held negligent only because there is a body of opinion taking a contrary view.
2. Can doctors be judged on their own cause?
As we know that judges alone cannot decide what a proper practice is, so they need expert opinion. But then the question arises as to whether it is justified to rely completely on the opinion of doctors who will be more likely to tilt towards the defendant.
This problem was sorted in Bolitho v. City Hackney Health Authority, Lord Brownie-Wilkinson sought to correct what he believed as misinterpretation of Bolam. His Lordship reiterated that it is the courts only can decide what reasonable care is. Bolitho struck fear into medical hearts. The past 20 years has seen number of claims for medical malpractice rise dramatically, levels of damages have rocketed but still the proportion of successful claims remains low. With the coming of Bolitho case, the courts will not blindly accept as to what is a good medical practice but will evaluate this practice. Substance will be given to patient’s interest but we should also seek to demonstrate that such developments should not cause doctors to fear from their professional integrity or independence. Returning to Bolam test with its proper limits and appropriate context will be beneficial, rather than detrimental, to medicine and to medical litigation.
Duty of A Doctor To Attend A Patient
It is the duty of a doctor to attend a patient admitted in the emergency ward of a hospital and if the doctor does not care to attend and the patient suffers or dies, the doctor would be liable to pay compensation.
In Shishir Rajan Saha v. The State of Tripura, the petitioner’s son, Ashim Saha while coming from Agartala to Udaipur on scooter met with an accident. He was admitted to the emergency ward of the G.B. Hospital, Agartala. The Senior Specialist Doctor, Dr. P. Roy was not available in the hospital. He was repeatedly called to attend to the patient. He was busy attending his private patients and did not bother to come to the hospital to attend to the accident victim. Ashim Saha succumbed to his injuries. Dr. P. Roy was held liable to pay Rs. 1, 25,000 as compensation for the death of the deceased.
Duty of Care Towards The Patients
When a doctor attends to his patient, he owes him certain duties of care like;
1. A duty of care in deciding whether to undertake this case.
2. A duty of care in deciding what treatment to give.
3. A duty of care in the administrating that treatment properly.
A breach of any of these duties gives a right of action for negligence to the patient. A breach of duty is committed by a doctor when he does not perform the standard and degree of care like reasonable doctor of his time or as a member of his class.
In Gian Kaur v. Vinod Kumar Sharma, though the victim was admitted to the surgical ward she was shifted to the children medical ward. Due to burn injuries she could not be clothed. She should have been kept in the warmest place available and probably for this reason on the first night she was shifted children medical ward. She should not have been exposed to the vagaries of weather. The doctor took umbrage to the fact that the child has been kept in his ward without his permission and forced her to leave the ward. The doctor has not given any explanation as to why he shifted her out. The doctor was not only negligent but also he was callous in his approach when he forced the parents to shift the child from the children ward to veranda outside in the cold rainy weather. Thus, the doctor was liable for the death of the child.
In Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, the facts were that the son of the respondent, aged 20 years, met with an accident on a sea beach, which resulted in the fracture of his left leg. He was taken to the hospital for treatment. In order to reduce the fracture, the doctor did not give an anaesthetic to the patient but contended himself with a single dose of morphia injection. He used excessive force in this treatment, using three of his attendants for pulling the injured leg of the patient. He then put his leg in the plaster. The treatment resulted in shock and caused the death of the patient. The Supreme Court held the doctor guilty of negligence.
In C. Sivakumar v. Dr. John Arthur, the plaintiff had the problem of blockage of urine, and the doctor in an attempt to perform the operation for curing the problem, totally cut-off his penis. The plaintiff became permanently impotent. It was held to be a case of deficiency in service and the defendants were held liable to pay compensation of Rs. 8lakhs to the plaintiff.
In Lakshmi Rajan v. Malar Hospital Ltd., the complainant, a married woman, noticed development of painful lumps in her breast. The hospital’s doctor while treating the lumps removed her uterus without justification. It was held to be a case of deficiency in service for which the opposite party was directed to pay Rs. 20,000 as compensation to the complainant.
In Dr. P. Narsimha Rao v. G. Jayaprakasu, the plaintiff, a brilliant student of 17 years, suffered irreparable damage in the brain due to the negligence of the surgeon and anaesthetist. There was no proper diagnosis and if the surgeon had not performed this operation, the plaintiff could have been saved from the brain damage. The anaesthetist was also negligent in so far as he failed to administer respiratory resuscitation by oxygenating the patient with a bag or a mask. The defendants were, therefore, held liable.
M.L.Singhal v. Dr. Pradeep Mathur, is another case where the plaintiff’s wife suffered from anaemia and had problem in urinating, was admitted in Sir Ganga Ram Hosital, Delhi, under the treatment of Dr. Mathur. The nursing staff was negligent and not the doctor. There was leakage in catheter and the patient developed bed sores which hastened the death of the patient. The hospital was liable to pay compensation of Rs. 10,000 to the plaintiff on account of mental torture to him because of bad nursing.
In Jasbir Kaur v. State of Punjab, a newly born child was found missing in the night from the bed in S.G.T.B.Hospital, Amritsar. The child was found profusely bleeding and with one eye totally gauged near the wash basin of the bathroom. The plaintiff contended replacement of the child while the hospital authorities contended that the child was taken away by a cat which caused the damage to him. The doctrine of res ipsa loquitor was applied. The court presumed that the hospital authorities were negligent and awarded compensation amounting to Rs 1lakh.
In State of Haryana v. Santra, the concerned doctor and the state was vicariously held liable to pay for the maintenance of the child till attaining the age of puberty, unsuccessful sterilization operation resulting in the birth of that unwanted child due to the negligent operation in a government hospital under the state sponsored family planning programme. The conduct of the operation, issuance of a certificate to that extent and also an assurance that she would not conceive resulting in failure evidenced by the birth of the eighth child attracted the maxim of res ipse loquitor. Compensation of Rs. 50,000 was paid to the child, with interest to be drawn only for his food, clothes and education till he attains majority.
Joint Director of Health Services, Shivagangal v. Sonal, was another case where the wife of the plaintiff underwent a family planning operation and was discharged the same day. Post – operational treatment was not properly given and two days after she had abdominal pain, her stitches were permitted t be removed by an unqualified motivator and few days after that she died. Bothe the doctor and the State were held liable for negligence.
Similarly in Aparna Dutta v. Apollo Hospital Enterprises Ltd., the plaintiff was living with her husband in Saudi Arabia. She developed some gynaecological problem. She was advised surgery and therefore she came to India for removal of her uterus. She got operated in Apollo Hospital, Madras but due to the negligence of the doctor abdominal pack has been left in the abdomen. Later on she complained of pain and therefore subsequent operation was performed and the abdominal pack left behind was removed. The maxim res ipsa loquitor was applied and the doctor and the hospital were held liable.
In R.P.Sharma v. State of Rajasthan, the petitioner’s wife, Smt. Kamla Sharma, was operated for removal of gallstone in SMS Hospital, Jaipur. The doctor advised transfusion of blood o to the patient. One bottle of the same blood was transfused. After that another bottle of blood was obtained from the blood bank. Due to the negligence of the hospital staff the new bottle was of another blood group i.e. B . Soon after the transfusion of this blood she lost her eyesight and later died. The defendant was vicariously liable for the negligence of the hospital staff.
In Sameera Kohli v. Prabha Manchanda, it was held; that the fact that the unauthorised additional surgery is beneficial to the patient, or that it would save considerable time or expense to the patient, or would relieve the patient from pain and suffering in future are not grounds of defence in an action for tort of negligence. Correctness and appropriateness of the treatment procedure adopted without consent does not make the treatment legal.
Where the consent was given for a diagnostic surgery but on the basis of such consent, uterus and ovaries were removed in order to give permanent relief, such removal was held to be unauthorised and unwarranted.
In all the above cases, it is manifest that the doctor, or the nursing staff, or the hospital authorities have done the treatment negligently. Doctors are responsible not for every act by which a patient suffers but for those acts in which the doctor has acted negligently. In the cases of specialists, more degree of care is required.
Doctor’s Duty of Secrecy
In Dr. Tokugha v. Apollo Hospital Enterprises Ltd., the plaintiff’s marriage was proposed to be held on 12-12-95 with Ms. Akli, was called off because of the disclosure by Apollo Hospital to Ms. Akli that the plaintiff was HIV ( ).
The plaintiff claimed damages from the defendant on the ground that they violated the rule of secrecy under medical ethics. The court held that the rule of secrecy is subject to the exception when circumstances demand disclosure of the patient’s sickness in public interest, particularly to save others from immediate and future health risks. Here Ms. Akli would have been infected with the dreaded disease if the marriage had taken place and consummated. The appeal was dismissed.
Cases of Incapability of Patient To Give Consent
At common law, a doctor cannot lawfully operate on adult persons of sound mind or give them any treatment involving the application of physical force without their consent or otherwise he would be liable for the tort of trespass. But when a patient is incapable, for one reason for another, of giving his consent, a doctor can lawfully operate upon or give other treatment provided that the operation or the other treatment concerned is in the best interests of the patient if it is carried out in order to either save his life or to ensure improvement or prevent deterioration in his physical or mental health. The test here also in determining liability would be whether the doctor acted in accordance with the practice accepted at the time by a reasonable body of medical opinion skilled in the particular form of the treatment. Prior consent or approval of the court for giving the treatment is not necessary. But in cases of a patient of unsound mind, the court may entertain a petition for declaration that the proposed operation or the treatment on the patient may be lawfully performed. These principles were laid down by the House of Lords in F. v. Berkshire Health Authority. This was a case where a mentally handicapped woman, who was an inpatient in a mental health hospital, was having sexual relations with a male patient in the same hospital and an application to the court was made for permitting sterilization operation which was held to be in the best interest of the patient. According to the current position in England the sterilization of a minor or a mentally incompetent adult will in all cases require thee prior sanction of the High Court Judge.
Similar principle is applied regarding judging the legality of withdrawal of treatment of an insensate patient who has no chance of recovery. The principle of self-determination, i.e., respect for the wishes of the patient has given rise to the rule that if an adult patient of sound mind and properly informed wants that the life support system be withdrawn, then the doctors responsible for his care must give effect to his wishes. In cases of this kind the patient cannot be said to have committed suicide nor can the doctor be said to have aided or abetted him in doing so. The patient exercises his right of declining the treatment and the doctor complies with the patient’s wishes which he is under a duty to do.
But when a doctor has in his care a patient who is incapable of deciding whether or not to consent to treatment, then what is the duty of a responsible doctor. This was very well explained in Airedale NHS Trust v. Bland, and it was held that the doctor in such cases is under no absolute obligation to prolong the patient’s life regardless of the circumstances or the quality of his life. If responsible and competent medical opinion is of the view that it would be in patient’s best interests not to prolong his life because such continuance would be futile and would not confer any benefit on him, medical treatment including artificial feeding and administration of drugs can be lawfully withheld from an insensate patient with no recovery of hope even though it is known that the result of withdrawal of treatment would be that of the patient would dies shortly thereafter. Withdrawal of life system in such cases does not amount to any criminal act for the doctor’s acts in the best interests of the patient, and the death of the patient is regarded as having been exclusively caused by the injury or the disease by which he was suffering. It was also held that in this case that the doctor should as a matter of practice seek the guidance of the court by applying for declaratory relief before withdrawing life support system from an insensate patient.
The Concept of Euthanasia
A two judge bench of Supreme Court in P. Rathinam Nagbhusan Patnaik v. Union of India held that a person has a right not to live a forced life and attempt to suicide is not illegal. So the view taken was that right to live does have the other side which is right not to live.
But this view was overruled by a Constitutional Bench of the Supreme Court in Gian Kaur v. State. The result is that sections 306 and 309 of the IPC which respectively make attempt to suicide and abetment to suicide punishable offences remains constitutionally valid. It is thus now clear that a doctor would be liable for abetting suicide under S. 306 IPC, if he by taking positive steps, e.g., administration of drugs, although with the consent of the patient, ends the patient’s life. To permit euthanasia is a matter of policy within the domain of the literature.
Recently in the case of Aruna Ramachndra Shambaug v. Union of India and others, before Markande Katju and Gyan Sudha Mishra, JJ. Euthanasia was described to be of two types:
1. Active Euthanasia which entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in a terrible agony.
2. Passive Euthanasia entails withholding of medical treatment for continuance of life. E.g. withholding of antibiotics where without giving it, a patient is likely to die, or removing the heart-lung machine, from a patient in comma.
A further categorisation of euthanasia as given in paragraph 40 of Aruna case is between voluntary euthanasia and non-voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas, non-voluntary euthanasia is where the consent is unavailable i.e. the patient is in comma or is otherwise unavailable to give consent. While there is no legal difficulty in the case of the former, the latter poses several problems.
Also a distinction is sometimes drawn between euthanasia and physician-assisted death, the difference being in who administers the lethal medication. In euthanasia, a physician or a third party administers it, while in physician–assisted suicide it is the patient himself who does it, though on the advice of the doctor. Physician-assisted suicide is a crime under section 306 IPC (abetment of suicide).
It was held that there is no statutory provision in India as to legal procedure for withdrawing life support to a person who is incompetent to take decision in this connection. Passive euthanasia should be permitted in India in certain situations. Hence the following law is laid down in this connection which will continue to be in force until Parliament makes a law on the subject:
1. A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bonafide in the best interest of the patient.
2. Hence, even if a decision is taken by the near relatives or doctors, or next friend to withdraw life support, such a decision requires approval from the High Court concerned.
In India, euthanasia is not prevalent, only passive euthanasia is allowed subject to certain conditions given by Supreme Court in the above cases. In all the other kinds of mercy killing, physician-assisted euthanasia, voluntary euthanasia, active euthanasia is illegal.
Therefore, it gives rise to the duty of a doctor to abstain from doing any such act himself or to assist any patient in doing so otherwise it will rise to criminal liability against the doctor.
Criminal Liability Under Section 304-A Ipc
Section 304-A of IPC reads as “Causing death by negligence-whoever causes the death of any person by doing any rash or negligent act not accounting to culpable homicide shall be imprisoned with imprisonment of either description for a term which may extend to two years or with fine or both.”
The High Court decision in Dr. Suresh Gupta v. Government of NCT of Delhi adjudicated that legal decision is almost firmly established that where a patient dies due to negligent medical treatment by doctors, they can be made liable in civil law by praying compensation and damages in law of torts and if the degree of negligence is so gross and his act was reckless as to endanger the life of the patient he would also be made criminally liable to offence under section 304-A of IPC. Thus he cannot be held criminally responsible for a patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.
In the case of Dr. Jacob Mathew v. State of Punjab, in paragraph12 to 16, it has been stated that simple negligence may result only in civil liability, but gross negligence of recklessness my result in criminal liability as well. For civil liability only damages can be imposed by the court but for criminal liability the doctor can also be sent to jail (apart from damages which may be imposed on him in a civil suit of by the consumer forum).
They questioned the adjective ’gross’ and opined that all negligent acts causing death shall be treated at par. Section 304-A was a sword hanging above the doctors. The three judge bench of Supreme Court made it clear that section 304-A can be made applicable to the doctors theoretically but they can feel secured in doing usual practices without any fear, apprehension of being victimised on trivial grounds. The honourable court went through the details of the problems faced by medical professionals and this landmark judgment will no longer distort the doctor-patient relationship. This will also free the doctors from the undue anxiety in the conduct of their professions. While the expectations from the professionals must be realistic and the expected standards must be attainable, this also implies recognition to the ordinary human error and human limitation in the performance of complex tasks.
As observed by the Supreme Court:
1. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against the criminality. A surgeon with shaky hands under the fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
2. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure of whatever reason- whether attributable to himself or no, neither can a surgeon nor can a physician successfully administer the life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving medicine.
3. When a patient dies or suffers from some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures.
In paragraph 52 of Jacob Mathew case the Supreme Court also realised that the doctors have to be protected from frivolous complaints of medical negligent, has laid down certain rules:
1. A private complaint should not be entertained unless the complainant has produced the prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
2. The investigation officer should, before proceeding against the doctor accused of rashness or negligence act or omission, obtain an independent and competent medical opinion, preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial opinion applying the Bolam test.
3. A doctor accused of negligence should not be arrested in a routine manner simply because a charge has been levelled against him. Unless his arrest is necessary for furthering the investigation or for collecting evidences or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest should be withheld.
Liability of Medical Practitioners Under Consumer Protection Act 1986
In a significant ruling in Vasantha P. Nair v. Smt. V.P.Nair, the National Commission upheld the decision of the Kerala State Commission which said that the patient is the ‘consumer’ and the medical assistance is the ‘service’ and therefore, in the event of any deficiency in the performance of medical service, the consumer courts can have jurisdiction. It was further observed that the medical officer’s service was not a persona service so as to constitute an exception to the application of the Consumer protection Act.
The controversy whether the medical services should or should not be covered by the expression ‘service’ as defined in section 2(1)(o) has been set at rest by the Supreme Court in the case of Indian Medical Association v. V.P.Shantha, by holding that s. 14 (1)(d) indicates that the compensation to be awarded is for the loss or injury suffered by the consumer due to the negligence of the opposite party. In view of the definition of ‘deficiency’ as contained in section 2(1)(g), medical practitioner must be included within the ambit of the Act and the service rendered by them is covered under the section 2(1)(o).
It was held that patients aggrieved by any deficiency in the treatment, from both private clinics and Govt. Hospitals, are entitled to seek damages under the Consumer Protection Act. The judgment of the Madras High Court was set aside by the Supreme Court. It was held:
1. Services rendered to the patient by a medical practitioner except where doctor renders service free of charge to every patient or under a contract of personal service by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall under the ambit of ‘service’ as defined in section 2(1)(o) of the Consumer Protection Act.
2. The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India of State Medical Councils would not exclude the service rendered by them from the ambit of Consumer Protection Act.
3. The service rendered by a doctor was under a contract for personal service rather than a contract of personal service and was not covered by the exclusionary clause of the definition of service contained in Consumer protection Act.
4. A service rendered free of charge to everybody would not be service as defined in the Act.
5. The hospitals and doctors cannot claim it to be a free service if the expenses have been borne by an insurance company under the medical care or by one’s employer under the service condition.
In the case of Harjot Ahluwalia v. Spring Meadows Hospital, the facts were that Harjot Ahluwalia, the complainant, a minor and the only child of his parents, had high fever and was taken to Spring Meadows Hospital, New Delhi. There he was administered several medicines, and intravenous chloroquine injection by an unqualified nurse and without prior test. Immediately thereafter, the child suffered cardiac arrest. No oxygen was given as the oxygen was not available in the hospital. The child suffered irreparable brain damage, and consequently went to vegetable state for the rest of his life. In this landmark judgement, the Supreme Court upheld the decision of National Commission where the hospital’s negligence was established and it was directed to pay compensation of Rs. 12.5 lakhs to the minor child and Rs. 5 lakhs to the parents. It is important to note that the Supreme Court held that the parents of the child were consumers having hired the services, and the child was a consumer as the beneficiary of such services.
Free services in hospitals and nursing homes- an exclusion
In Paramjit Kaur v. State of Punjab, the complainant was operated in Government Hospital free of charge of family planning, but later on, she gave birth to a female child. The complainant alleged negligence in the performance of operation. The complaint was dismissed as the medical services in the Government Hospital were free of charge to everybody. Similarly in the case of Additional Director, C.G.H.S. v. Dr. R.L. Bhutani, the complainant, a retired Government Servant, paid Rs. 9 per month towards the Central Government Health Scheme. He and his wife were the beneficiaries of CGHS. His wife was suffering from some ailment for which she was operated for but, instead of improvement, she became paralytic. The National Commission held that services under CGHS were rendered free of charges to everybody and under the contract for services; such services are excluded from section 2 (1)(o) and the complainant was not a consumer within the meaning of 2 (1)(d). Hence the complaint was dismissed. The court also held that the payment of Rs. 9 per month was only regarding administrative charges and not for treatment.
It is noteworthy that the complainants in the above two cases, could not get any relief under the provisions of the Consumer Protection Act, 1986, but in such kinds of cases the relief was available in the law of tort if they would have filed suits for damages for the tort of negligence in the civil court. Section 3 of the Consumer Protection Act, 1986 provides that the provision of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, the provisions of the Consumer protection Act give the consumer an additional remedy besides those that may be available under other existing laws.
In Malay Kumar Ganguly v. Sukumar Mukherjee and others , the patient (Anuradha) and her husband Dr. Kunal Saha were settled in the United States of America. Anuradha, a child psychologist by profession, was a recent graduate from a prestigious Ivy League School (`Columbia University' in the New York State). Although a doctor by profession, Kunal has been engaged in research on H.I.V/ AIDS for the past 15 years. They left U.S.A. for a vacation to India on and arrived in Calcutta. While in Calcutta, Anuradha developed fever along with skin rash on 25th April, 1998. On 26th April, Dr. Sukumar Mukherjee, attended and examined Anuradha at her parental residence on a professional call. Dr. Mukherjee assured the patient and her husband of a quick recovery and advised her to take rest but did not prescribe her any specific medicine. However, two weeks thereafter, the skin rash reappeared more aggressively. Dr. Mukherjee was again contacted and as per his instructions, Anuradha was taken to his chamber. After examining Anuradha, he prescribed injection for the next three days. Despite administration of the said injection twice daily, Anuradha's condition deteriorated rapidly from bad to worse over the next few days. Accordingly, she was admitted at the Advanced Medicare Research Institute (AMRI) in the morning of 11th May, 1998 under Dr. Mukherjee's supervision. Anuradha was shifted to Breach Candy Hospital, Mumbai as her condition further deteriorated severely. She breathed her last on 28th May, 1998. A criminal petition against the Dr. Sukumar was filed and a petition against the hospital AMRI was also filed under CPA, 1986. The court directed the matter to the commission for determining the compensation only. Keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs. 5,00,000/- and Rs. 1,00,000/- would payable by AMRI and Dr. Mukherjee respectively.
Fulfillment of Burden of Proof – Whose Duty
In a suit for damages against a doctor the onus of proof is upon the plaintiff to prove that the doctor was negligent and that his negligence caused the injury of which the plaintiff complained. The Delhi High Court in Madhubala v. Government of N.C.T. of Delhi did not grant compensation to the claimant who conceived child even after tubectomy operation but failed to prove negligence on the part of hospital or doctor concerned. It was held that it was not the case of res ipsa loquitor. Claimant was made aware by the hospital abut chances of pregnancy even after operation. Further the claimant failed to report about irregular menstrual cycle to the hospital which was asked for. The claimant was herself negligent, so the court did not grant any compensation. The Bombay High Court in the case of Philips India Ltd. v. Kunju Punnu, where the plaintiff’s son died observed that “standard of care which the law requires is not an insurance against accidental slips”. It is such degree of care as normally skilful member of the profession may reasonably be expected to exercise in actual circumstances of the case in question. It is not every slip or mistake which imports negligence. The court held that the plaintiff could not prove that the death of her son was due to negligence of the doctor and therefore, the defendants were not liable.
In State of Punjab v. Shiv Ram, despite sterilisation operation, the woman became pregnant. The plaintiff claimed against the doctor on the basis of negligence. The court held that the compensation can be awarded only if the failure of the operation is attributable to the negligence of the doctor and for the failure due to natural causes. The burden to prove negligence lies on the claimant.
In T.Thomas v. Elissar, the facts that the plaintiff’s husband was admitted in the hospital due to severe abdominal pains. It was diagnosed as a case of acute appendicitis which required immediate operation to save the life of the patient. But the doctor faded to perform the operation in emergency and the patient died. The Kerala High Court held that the doctor was negligent in not performing the operation in emergency, and therefore, the defendant was liable for the death of the patient. The doctor’s plea that the patient has not consented to the operation was also rejected on the ground that the burden of proof was on the doctor that the patient had refused to undergo the operation. Here, the doctor failed to prove the same.
Therefore, it can be observed that the burden of proof keeps shifting. But the initial onus of proof lies upon the plaintiff. It is his duty to prove negligence on the part of the doctor. The burden of proof then shifts towards the doctor to prove that he acted reasonably, to the best of his abilities and in the best interest of the patient. If he fails to prove so he will be liable for the tort of negligence. Although the burden of proof is not required to be proved by the complainant in the cases of gross negligence by virtue of the maxim res ipsa loquitor where it is manifest on the face of it that the doctor has acted negligently.
Drawing The Balance Between The Rights of A Doctor And A Patient
The Supreme Court judgement in the Anuradha Saha medical negligence case is a landmark in the annals of medical jurisprudence. The apex court not only adjudicated on how to determine criminal negligence on the part of a doctor or a group of doctors in the event of a patient’s death but also imposed greater responsibility on them on the universal treatment protocol. It has also reinforced a patient’s right to know the line of treatment being followed by doctors, including the risks involved in the treatment.
The court observed: The judgement is a watershed in medical jurisprudence because it not only put the onus on the doctors for the patients’ treatment but also laid down ground rules on the basis of its judicial pronouncements over the years. The doctors must observe the current practices regarding infrastructure, sterility and hygiene. No prescription should be given to a patient without actual examination.
A doctor should not merely go by the patient’s version about his/her symptoms but also make his/her own analysis, including tests and investigations wherever necessary. Doctors should not experiment unless necessary and even then only after obtaining the patient’s written consent.
The judgement reinforces a patient’s right to know. The Bench has made it clear that doctors must tell patients about the risks involved in any line of treatment they are following. By and large, patients are ignorant about the adverse effects of a medicine. If some reaction is anticipated, the patient must be informed. This was not done in Anuradha’s case.
If punished, no doctor can practice his vocation with equanimity. It is true that medical profession has to an extent become commercialised
A doctor cannot straightway be held liable for medical negligence simply because a patient has not favourably responded to treatment or surgery has failed, the Supreme Court has held.
A Bench consisting of Justices Markandey Katju and R.M. Lodha on said: “A medical practitioner is not liable to be held negligent simply because things went wrong from a mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below the standards of a reasonably competent practitioner in his field.”
Writing the judgment, Justice Katju said: “While doctors who cause death or agony due to medical negligence should certainly be penalised, it must also be remembered that like all professionals doctors too can make errors of judgment, but if they are punished for this no doctor can practise his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter-productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.”
Therefore, whenever complaints were received against a doctor or hospital, the consumer forum or criminal court, before issuing notice, should first refer the matter to a competent doctor or a committee of doctors, specialising in the field where negligence was attributed. Only after that doctor or committee “reports that there is a prima facie case of medical negligence should notice be issued to the doctor/hospital concerned.”
The Bench said: “This is necessary to avoid harassment to doctors who may not ultimately be found to be negligent. We further warn police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down by the apex court in Jacob Mathew are case; otherwise, the policemen will themselves have to face legal action.”
The Bench said: “While this court has no sympathy for doctors who are negligent, it must also be said that frivolous complaints against doctors have increased by leaps and bounds particularly after the medical profession was placed within the purview of the Consumer Protection Act.”
The Bench said: “The courts and consumer forums are not experts in medical science and must not substitute their own views for that of specialists. It is true that the medical profession has to an extent become commercialised and there are many doctors who depart from the Hippocratic Oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.”
Medical negligence cannot be a considered to be simply a plain category of tort. Medical negligence changes its form, from a simple tort whereby a person is given a wrong treatment and may vomit due to that to a dangerous life harming tort whereby the patient loses his life due to a simple injury of fracture.
Medical negligence calls for a comparative high degree of care which is expected from a doctor of a reasonable degree. The standard of care is not of an ordinary prudent man but of an ordinary prudent doctor who belongs to that category to which the doctor belong who is to be judged by that standard.
With the growing number of cases in India and the world at large it become a prime concern that should the remedies be still given under a law of tort and Consumer Protection Act, 1986 or if the time has come to enact a legislation to carve out the remedies for the patients who have suffered in serious ways due to the negligence of the doctors or the medical authorities. There are patients who have suffered due to negligence but have not made a complaint either due to their own unawareness or due to long proceedings etc. Not only this, many doctors give medicines which are too strong for the patients. These can damage their brain as well as body. In general, such defects in the treatment never come to the limelight. This should be taken care of. A doctor should be made responsible for the various compositions of medicines which he prescribes.
It is time now that a forum should be established to easily provide the remedies to such patients. But this would not do alone. It is required to be implemented in its full swing by making the ways easier and advertising it so as to make people aware of their rights.
But certainly the rules and regulations should not be made so strong so as completely take a away the freedom of the doctor to treat the patients. A doctor should be given the freedom to treat his patients liberally and not in fear and to find out better ways to treat the patients. The fact that doctors do play a major role in bringing happiness to many lives cannot be denied.
Another point to be highlighted is as to why a poor person taking treatment free of charges cannot be granted compensation under CPA 1986. There seems to be a conflict between this provision and Art 14 of The Indian Constitution.
Supreme Court has also laid down some guidelines for the doctors/hospitals:
1. Current practise, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly.
2. No prescription should be given without actual examination. The tendency to give the prescription over the telephone, except in acute emergency, should be avoided.
3. A doctor should not go merely by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations wherever necessary.
4. A doctor should not experiment unless necessary and even then he should get a written consent from the patient.
5. An expert shall be consulted in case of any doubt.
6. Full record of the diagnosis, treatment, etc. should be maintained.
These guidelines will surely prove to be of great help to the doctors/hospitals to prove their innocence and will also keep them on the safer side.
A balance is required to be made between the rights of the patients and the rights of the doctors. It is essential to open the doors for the new ways of treatment and for securing the rights of the patients.
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1. Indian Penal Code, 1860
2. The Consumer Protection Act, 1986
1. Markandey Katju. “Medical Negligence”, JT (2007) 12 SC (J) I
2. Bye-Bye Bolam – A Medical Litigation Revolution? Margaret Brazier & Jose Miola
 1932 AC 562
 Winfield on Tort.
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 Poonam Verma v. Ashwin Patel, AIR 1996 SC 2111
 (1865) 3 HIC 596
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 (1985) 1 ALL ER 365 (HL)
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 Bye-bye Bolam: A medical litigation Revolution? – Margaret Brazier & Jose Miola
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 AIR 1969 SC 128
 (1998) CPJ 436
 (1998) CPJ 586
 AIR 1990 AP 207
 AIR 1996 DELHI 261
 AIR 1995 P & H 278
 AIR 2000 SC 1488
 AIR 2000 MADRAS 305
 AIR 2000 MADRAS 340
 AIR 2002 RAJ 104
 AIR 2006 SC 1385
 AIR 1999 SC 495
 (1989)2 ALL ER 545(HL)
 (1993) 1 ALL ER 831 (HL)
 AIR 1994 SC 1844
 AIR 1996 SC 946
 (2011) 4 SCC 454
 I (1991) CPJ 685
 Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energies, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.
 AIR 1996 SC 550
 Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or have been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
 ‘Contract for Service’ implies a contract whereby one party undertakes to render services. ‘Contract of Service’ is a relationship of master and servant and involves an obligation to obey orders in the work to be performed and so its mode and manner of performance.
 AIR 1998 SC 1801
 II (1997) CPJ 394
 SC 2010
 (2005) 118 DLT 515
 AIR 1996 SC 550
 AIR 1975 BOM 306
 AIR 2005 SC 3280
 AIR 1987 KER 42
 LAW RESOURCE INDIA Death bynegligence Posted in CONSTITUTION, MEDICAL NEGLIGENCE by NNLRJ INDIA on September 2, 2009 SC ruling a benchmark for doctors by V. Eshwar Anand In THE TRIBUNE 02/09/200
 “Doctor can’t be held liable for error of judgment” Posted in MEDICAL NEGLIGENCE by NNLRJ INDIA on February 19, 2009 J. Venkatesan