boston personal injury lawyers
boston personal injury lawyers
boston personal injury lawyers
boston personal injury lawyers
Chicago Personal Injury Lawyer Daniel M. Kotin Elected to the American Board … – Benzinga
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Chicago Personal Injury Lawyer Daniel M. Kotin Elected to the American Board …
Benzinga Chicago personal injury lawyer Daniel M. Kotin obtained his J.D. from Loyola University Chicago School of Law and obtained his B.A. from Boston College. He concentrates his legal practice in personal injury, wrongful death, and medical malpractice.and more »
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AG Healey takes stand on accuracy in credit reporting – The Recorder
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AG Healey takes stand on accuracy in credit reporting
The Recorder BOSTON — Attorney General Maura Healey, joined by 12 of her peers from across the country, led the filing of an amicus brief with the Supreme Court this week, asking the justices to recognize that consumers suffer when businesses make decisions about …
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Washington-area obituaries of note – Washington Post
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Washington-area obituaries of note
Washington Post His work included personal injury cases. … He was a board member of the D.C. Trial Lawyers Association and helped found the Washington Hospice Society and St. Francis Hospice Society. For decades, he … 23 at a hospital in Boston, where he was visiting.
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Judicial interpretation of medical negligence under consumer …
INTRODUCTION: Medical profession is one of the most oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Aryans embodied the rule that, Vidyo narayano harihi (which means doctors are equivalent to Lord Vishnu). Since long the medical profession is highly respected, but today a decline in the standard of the medical profession can be attributed to increasing number of litigations against doctors for being negligent narrowing down to “medical negligence”. Hospital managements are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their therapeutic and diagnostic methods. When incidents like these began to rise, the Supreme Court intervened and pronounced that medical profession and professional could also be tried under the Consumer Protection Act (CPA), 1986.
Keywords: Consumer protection act, medical negligence, reasonable care,medical malpraxis,medical council of india.
Negligence is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the contract of human affairs would do which a prudent and reasonable man would not do. According to Charlesworth Percy on Negligence(Tenth Edition, 2001) in current forensic speech, Negligence has three meaning. There are
I. A state of mind, in which it is opposed to intention
II. Careless conduct
III. The breach of duty to take care that is imposed by either common or statute law.
Medical negligence defined as – the failure to exercise rational caution and capability during diagnosis and treatment over a patient in accordance to the prevailing standards in force at that point of time. In case of Bolam Vs. Friern hospital management committee 1957, the test for establishing medical negligence was set. “The doctor is required to exercise the ordinary skill of a competent doctor in his field. He must exercise this skill in accordance with a reasonable body of medical opinion skilled in the area of medicine.” In Dr.Kunal Saha v. Dr. Sukumar Mukherjee and Ors., decided on 1st June, 2006, the National Consumer Commission summarised the medical negligence law as follows:
Real test for determining deficiency in service
I. Whether there was exercise of reasonable degree of care?
II. The degree of standard or reasonable care varies in each case depending upon expertise of medical man and the circumstances of each case. On this aspect, it would be worthwhile to refer to the enunciation from Halsbury’s Laws of England.
The degree of skill and care required by a medical practitioner is so stated in (pr.36, p.36, Vol.30, Halsbury’s Laws of England, 4th Edn.)
“The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Failure to use due skill in diagnosis with the result that wrong treatment is given is negligence. 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 exists among medical men; nor is a practitioner necessarily negligent if he has acted in accordance with one responsible body of medical opinion in preference to another in relation to the diagnosis and treatment of a certain condition, provided that the practice of that body of medical opinion is reasonable.”
Medical profession has been brought under the Section 2(1) (o) of CPA, 1986. In a significant ruling in Vasantha P. Nair v Smt. V.P.Nair I (1991) cpj the national commission held a patient is a ‘consumer’ and a medical assistance was a ‘service’. A doctor is held liable for only his acts (other than cases of vicarious liability). Vicarious liability arise in case of government hospital though doctor responsible but hospital has to pay the compensation.
It is well known that a doctor owes a duty of care to his patient. A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. Supreme Court make it obligatory in Parmanand Kataria vs. Union of India case that “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life” .
Incidence of “medical negligence” can also decide by medical council of india. Medical council of india is a statutory body deal with high standards of medical education and recognition of medical qualifications in India. It registers doctors to practice in India and promote the health and safety of the public. In many cases national commission accept the credibility of council’s verdict in medical negligence . Medical council of india guided by the Medical Council Act 1956. But now days question raise relating to the working ability of medical council of india , PIL filed in the Supreme Court by “People for Better Treatment” (PBT) in 2000 (W.P. Civil No. 317/2000), it was unraveled that the failure of the council to perform his duty.
Extended ambit of medical negligence
The National Commission as well as the Apex Court in catena of decisions has held that the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals.
In Supreme court land mark decision Indian Medical AssociationVs V.P. Shantha and Others III (1995) C.P.J laid down certain guideline for medical negligence and define efficiency of consumer protection. It has held certain exception like
- Service rendered to patient in (free of cost or charity) by a medical professional would not fall under the definition of ‘service’ under consumer protection act1986.
- Service rendered by a doctor under contract of personal service was not covered in consumer protection act 1986.
Proof of negligence
The principle of Res-Ipsa-Loquitur has not been generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in deciding the case under this Act. The Hon’ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Triambak, AIR 1969 Supreme Court page 128 has held the above view that “All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the Complainant, it means he has the task of convincing the court that his version of the facts is the correct one”. In Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and anr., 1998 CTJ7 National Commission held that expert opinion in medical negligence played an effective role.
Criminal negligence
Provision under the Indian Penal Code – Section 304A which covers acts of medical professionals. According to this whoever causes the death of the person due to negligence or a rash act, not amounting to culpable homicide, can be tried and suitably punished with imprisonment for 2 years or fine or both. Sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 all cover the acts of medical malpraxis.
A judgment in Jacob Mathew vs. State of Punjab in 2005 (6 SCC 1) has made profound impact in a backward direction for appropriate adjudication of medical negligence cases in India. Supreme Court of India defined ‘criminal negligence’ under this case and held that “to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do”.
A Bench of Mr. Arijit Pasayat and Mr. C.K. Thakkar observed that the words “gross negligence” or “reckless act” did not fall within the definition of Section 304-A IPC, defining death due to an act of negligence or the culpable homicide not amounting to murder.
Between Civil and Criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing with a higher degree of morally blameworthy conduct.
Conclusion
Doctors should be more careful to perform their duties. Gross Lack of competency or gross inattention, or wanton indifferences to the patient’s safety can only initiate a proceeding against a doctor . Consumer dispute onle deal with compensation part. But its procedural aspect is too lengthy. It should disposed cases in speedy way. A healthy medical environment can create a great society.
Reference:
- Jacob Mathew v. State of Punjab and another – 2005 SCCL.COM 456. Criminal Appeal No. 144-145 of 2004 decided by the Supreme Court on August 5, 2005
- The Four Elements of Medical Malpractice”. Yale New Haven Medical Center: Issues in Risk Management. 1997References
- The Consumer Protection Act, 1986.
- Indian Medical Association v VP Shantha AIR 1996 SC 550: 1995 (6)SCC 651, para 51, pp 678-79.
- Ratanlal and Dhirajlal, Laws of Torts, 24th edition, 2002, edited by Justice G.P.Singh, pp 441 – 442.
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A former associate at Wilson Sonsini Goodrich Rosati in Palo Alto was arrested late last month in connection with allegations that he was not licensed to practice law and had attempted to falsify credentials.
Steven Young Lee, 31, who had worked in the prestigious law firm’s securities litigation division since last August, was fired last month when the firm found out that the Boston College law graduate had lied about being licensed to practice law in California or anywhere else.
Lee’s attorney, Lucy McAllister, did not return phone calls, and when reached Monday, Lee himself said “I don’t want to comment.”
After his arrest April 29, Lee was charged with felony grand theft and the unlawful practice of law. If convicted of both charges, Lee faces up to five years behind bars, according to Santa Clara County Assistant District Attorney Al Weger.
While at Wilson, Sonsini, Lee conducted interviews, took depositions, gave legal advice and made court appearance in L.A., San Francisco and San Mateo. The firm has returned to clients a total of $219,865.95 that was billed for Lee’s work, and it brought the matter to prosecutors’ attention, Weger said.
“The work he did seemed adequate,” said Wilson, Sonsini lawyer Timothy Scott, chair of the firm’s litigation department. “The other lawyers seemed to have liked him.”
According to a report by District Attorney Investigator Gary Medlin, the allegations unfolded April 13 when partner Leo Cunningham overheard his secretary talking to someone from the State Bar, which grants individuals licenses to practice the profession. The secretary, according to the report, was doing a routine verification to make sure Lee was in good standing with the bar. (To practice law in California, an individual must pass a bar exam and an ethics review.)
The bar, however, told the secretary that the number she provided did not belong to Lee. Cunningham then confronted the associate, according to the report, and Lee said that he must have incorrectly written the number down. He said he would check his bar card and give the correct number to Cunningham, the report said.
Lee later provided Cunningham with another number, which state bar records showed was registered to a Steve Y.C. Lee who lived in Sacramento. Steven Y. Lee finally admitted he was not licensed in any state, the report said. He was immediately suspended, and on that day sent a change of address form to the California State bar, requesting a duplicate bar card belonging to Steve Y.C. Lee, listing Wilson as his new employer. Less than a week after he was fired, Lee submitted a resume to an executive legal search firm to find new work as a lawyer, the report said.
“This was an obvious attempt on his part to steal Steve Y.C. Lee’s bar number,” concluded the report. The Sacramento lawyer, meanwhile, said this week that he is considering a negligence suit against Wilson, Sonsini. “At the bare minimum, Wilson was negligent,” said Steve Y.C. Lee. “All it takes is one search. … What firm doesn’t do a background check?”
Scott defended the firm’s hiring practices, even as he stressed that such an incident would never happen again.
“We check references, and we did so in this case,” he said. The state bar’s Web site, which lists Steve Y.C. Lee’s bar number and that of other lawyers, is accessible to anyone.
Ironically, Steven Y. Lee had gotten over what to most aspiring lawyers are the hardest parts of the process — getting through law school and passing a required test. Prosecutors said he has passed the bar in at least two states, and in 1993, he graduated from Boston College Law School.
Shortly afterward, though, Lee made what would prove to be a terrible mistake. It wasn’t that he failed the Massachusetts exam (more than half of test-takers do), but that he lied about the results to land a job with a firm in that state, prosecutors said. When the firm found out, it fired Lee.
In 1994, Lee moved to New York and took the bar exam for that state. He passed, but because of the incident in Massachusetts, he was rejected in a review of ethical conduct — a step almost perfunctory to many lawyers. After that, said prosecutors, he told the law firm of Dickstein, Shapiro, Morin Oshinsky that he was indeed licensed — and worked there until his lie was discovered 15 months later, prosecutors said.
In 1997, Lee moved to work at Brian Cave LLP in Los Angeles. He lasted there less than two weeks when the firm found out he didn’t have a license to practice in California, prosecutors said. Last February, Lee passed the California bar exam. But, said the report, “He never followed through with the procedures necessary to become licensed.”
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