Define medical negligence & its essentials

Dr. Tokugha Yepthomi v/s Apollo Hospital Enterprises Ltd. {medical negligence}

By, THE HONOURABLE MR. JUSTICE S. SAGHIR AHMAD & THE HONOURABLE
MR. JUSTICE B.N. KIRPAL

Facts:
The appellant after obtaining the Degree of MBBS in 1987 One of the patient Itokhu
Yepthomi who was ailing from a disease which was provisionally diagnosed as Aortic
Anuerism was advised to go to the Apollo Hospital at Madras For the treatment of the above
disease, Itokhu Yepthomi was posted for surgery on May 31 appellant and one Yehozhe who
was the driver of Itokhu Yepthomi were asked to donate blood for the latter. Their blood
samples were taken and the result showed that the appellant's blood group was A(+ve). On
the next date, namely, on June 2, 1995, Itokhu Yepthomi was operated for Aortic Anuerism
and remained in the Hospital till 10th June, 1995 when he was discharged. In August, 1995
the appellant proposed marriage to one Ms. Akali which was accepted and the marriage was
proposed to be held on December 12, 1995. But the marriage was called off on the ground of
blood test conducted at the respondents' hospital in which the appellant was found to be
HIV(+). The appellant went again to the respondents' hospital at Madras where several tests
were conducted and he was found to be HIV(+). Since the marriage had been settled but was
subsequently called off, serveral people including members of the appellant's family and
persons belonging to his community became aware of the appellant's HIV(+) status. This
resulted in severe criticism of the appellant and he was ostracized by the community. The
appellant left Kohima (Nagaland) around November 26, 1995 and started working and
residing at Madras. The appellant then approached the National Consumer Disputes
Redressal Commission for damages against the respondents,

Procedural History:
The case originated from a petition filed by Dr. Yepthomi before the National Consumer
Disputes Redressal Commission in 1998. The Commission dismissed the petition, prompting
Dr. Yepthomi to file an appeal (Civil Appeal No. 4641 of 1998) before the higher court.

Issues Raised:
Whether the disclosure of Dr. Yepthomi's HIV status by Apollo Hospital violated medical
ethics.
Whether Dr. Yepthomi's was entitled to damages for the alleged breach of confidentiality.
Whether the right to privacy, overridden by the public interest.

Contentions of the parties:

Arguments of Plaintiff (Dr. Yepthomi):
Dr. Yepthomi argued that the disclosure of his HIV status violated medical ethics and
confidentiality.
He contended that the duty of care in the medical profession includes the obligation to
maintain confidentiality.
Dr. Yepthomi asserted his right to privacy and sought damages for the emotional distress
caused by the disclosure.
The appellant argued that the respondents should have maintained strict secrecy about his
HIV status.
Arguments of Defendant (Apollo Hospital):
Apollo Hospital argued that the disclosure was justified by the potential health risk to others,
especially considering Dr. Yepthomi's proposed marriage.
The hospital contended that the right to privacy is not absolute and may be lawfully restricted
in the interest of public health.
They asserted that the duty to maintain confidentiality is subject to exceptions, as outlined in
the Code of Medical Ethics.
Apollo Hospital argued that their disclosure prevented harm to Ms. Akali, the prospective
spouse, and others who could have been at risk.

Judgement :
The court concluded that the duty of confidentiality is not absolute, especially when public
interest and the health of others are at stake. The disclosure of Dr. Yepthomi's HIV status was
deemed justified to prevent harm to Ms. Akali and others. The right to privacy, while
essential, was overridden by the public interest in this specific case. Consequently, the appeal
was dismissed, and Dr. Yepthomi's claim for damages was rejected. The court highlighted the
delicate balance between individual rights and public welfare in the context of medical
confidentiality.

Referred cases:
Jacob Mathew v state of Punjab [gas cylinder, father, midnight, gas cylinder with no oxygen,
other cylinder by son and father die, ]
BHOPAL GAS TRAGEDY
FACTS
The Union Carbide Corporation, an American enterprise established a pesticide plant in India
because of its central location. While this pesticide was produced, a toxic liquid was also
produced i.e., Methyl Isocyanate (MIC). Since MIC is a very toxic chemical it required great
maintenance. Around 1:00 a.m on 4th December 1984, when the MIC gas started swallowing
up the whole of Bhopal people who were sleeping peacefully started feeling the change in the
air. They ran for their lives but couldn’t escape their death. Some who were able to save their
lives weren’t able to save themselves from the coming disabilities. All this happened because
of leakage of the MIC gas from the tank . Earlier, too, complaints were being made about the
maintainability of the plant, of how MIC was leaking in small amounts. The previous
incidents of leakage had also caused the death of some people and left others severely
injured. But, the authorities paid no attention to it. The machines were worn out but no
replacement was there.
ARGUMENTS
Arguments from Plaintiff:
The Government of India argued that UCC, as the parent company of UCIL, was liable for
the Bhopal Gas Tragedy. It was alleged that UCC had control over UCIL's operations and
had failed to ensure adequate safety measures at the plant, leading to the gas leak. The
petitioner further contended that the settlement reached in the US court was inadequate and
did not cover the full extent of the damages caused. They sought higher compensation,
restoration of the environment, and implementation of remedial measures to address the long-
term impact of the gas leak.
Arguments from Defendant:
Union Carbide Corporation (UCC) maintained that it had no direct control over UCIL's
operations and that the gas leak was primarily a result of negligence on the part of UCIL's
local management. UCC argued that it had provided sufficient resources and expertise to
UCIL to manage the plant safely. The defendant also argued that the settlement reached in
the US court was fair and reasonable, considering the circumstances and the limitations of
UCC's liability.
Judgment:
The Supreme Court of India delivered its judgment on September 13, 1996. The court held
that UCC was liable for the Bhopal Gas Tragedy and upheld the principle of absolute
liability. It recognized the need for adequate compensation to the victims and directed UCC
to pay additional compensation. The court also ordered various remedial measures, including
the establishment of a hospital, a research center, and an appropriate scheme for the supply of
clean drinking water.Absolute liability is a liability where the accused is held liable but
without any exception of getting excused from the liability. Normally, a person can be held
liable only when he had mens rea (guilty mind) but in the case of absolute liability, a person
can be held liable even if he had no intention of committing the offense.
REFERRED CASES Rylands v. Fletcher & M.C. Mehta v. Union of India
Christie v Davey {private nuisance}

Facts
The plantiff lived next door to the defendant. The plaintiff was a music teacher. Their houses
were joined by a single wall, and the defendant could sometimes hear the music lessons and
the plaintiff practising her singing. The defendant complained that the noise was becoming
excessive, but the plaintiff refused to reduce her activities. The defendant responded by
deliberately making loud and annoying noises near the party wall during the plaintiff’s
lessons and at other times.

Issues
1. Whether the defendant’s deliberate attempts to annoy the plantiff a nuisance?
2. Whether the plaintiff’s musical activities a nuisance?

Decision
The Court held in favour of the plaintiff. The musical activities were not a nuisance because
they were reasonable in duration and volume.
The court granted injunction against the defandant.

Referred Cases:
Dr. ram raj singh v Babulal
Ushaben v Bhagya laxmi chitra mandir

Cherubin Gregory v. the State of Bihar. {trespass }

Rash - act refers to ‘act done in hurry without proper thinking of action and its consequences
BENCH: 3 Judge Bench
CORUM: N. Rajagopalan Ayyangar and J.C Shah, JJ and B.P Sinha
APPELLANT: Cherubin Gregory
RESPONDENT: State of Bihar
FACT OF THE CASE :
Appellant and Deceased both are inmates to each other.
Due to the fall of the wall of her latrine approximately a week before the day of the incident,
the deceased, along with others, began using the accused’s toilet.
The accused was infuriated by this and informed them that they did not have his authorization
to use it, and objected to their movement.
However, the verbal warnings were insufficient, so he installed a naked copper wire across
the path leading to his washroom, which transmitted electricity from his domestic connection,
without any warning that the wire was live.
Even, the deceased was able to enter the washroom without touching the wire, but when she
was exiting, her hand came into contact with it, causing her to receive a shock, and she died
shortly afterwards.
The appellant was found guilty and punished under Section 304A of the Indian Penal Code
by both the trial and appeal courts.
As a result, this appeal has been made:
Section 304 A of the Indian Penal Code which enacts:
“Whoever causes the death of any person by doing any rash or negligent act not amounting
to culpable homicide shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both.”
ISSUE RAISED
Can the act of the accused be tried under section 304 A for causing death by negligence?
ARGUMENTS
Arguments of defendant:
It was Contended that, the deceased was a trespasser.
there was no duty owned by the plaintiff as the deceased was a trespasser and therefore the
plaintiff had no Cause of action for damages for the Injury Inflicted.
JUDGEMENT
The court held that-
1. Entering someone's property as a trespasser doesn't make one an outlaw. Property owners
are not justified in causing bodily harm through direct or indirect means. Even if a trespasser
is injured as a result of actions on the property, the owner cannot intentionally cause harm,
and the trespasser's knowledge of potential consequences doesn't change this.
2.The case falls under section 299(3), but imposing a severe penalty is unjustified. The
accused's intention wasn't to cause death but for personal benefit. While punishment is
necessary, it should be less severe, recognizing the absence of intent for murder under
sections 299 and 300, where death is a requisite outcome.
REFERRED CASES:
 Stanley vs powell {trespass}
Powell who was the member of a shooting party fired at a pheasant but the pellet from his
gun glanced of a tree and accidently wounded Stanley another member of the party. It
 was held that Powell was not liable. If the act is wilful or negligent, the defendant would
be liable.
 Pratap Daji V. B.B. And C.I. Ryl. {trespass}
The plaintiff entered a carriage on the defendant’s railway but by oversight failed to purchase
a ticket for his travel. At an intermediate station he asked for the ticket but the same was
refused, at another place, he was asked to get out of the carriage since he didn’t have a ticket.
On his refusal to get out, force was used to make him to get out of the carriage. In an action
by him for his forcible removal, it was held that the use of force was justified as he, being
without a ticket was a trespasser. The defendants were therefore, not liable.

Stephens v Myers {trespass of person(assault)}

Facts
The claimant was chairing a meeting at a local parish. The defendant sat at the other end of
the table. The discussion became very heated. The defendant got out of his chair and told the
claimant that he would ‘rather pull the chairman out of the chair, than be turned out of the
room’. He then advanced on the claimant shaking his fist. Witnesses thought that the
defendant’s intent was to hit the claimant. However, he was stopped by the churchwarden
before he got near enough to strike.
The claimant sued the defendant for assault. The defendant argued that it was not an assault
because he had no power to carry out any threat.
Issue
Were the defendant’s words or actions an assault?
Decision
The court held that the defendant’s words and actions would constitute an assault if the
defendant had the means to carry out his threat. This would be the case if the defendant was
advancing in a threatening manner such that his blow would have reached the claimant had
he not been stopped by a third-party. The jury gave their verdict for the claimant, finding that
the defendant had committed an assault
Rural Transport Service v. Bezlum Bibi and Ors. {negligence}
FACTS OF THE CASE
On 28 October 1969, Taher Sheikh took a bus to travel from Khetia to Bhatar. The conductor
told him to go and sit on the roof of the bus since the inside of the bus was overcrowded and
had no accommodation.
There were other passengers also seated on the roof of the bus along with Taher. However, as
the bus was nearing to Bhatia, the driver swerved the bus to overtake a cart on the road.
As a result of this, Taher was struck by an overhanging branch of a tree and fell on the
ground. He suffered multiple injuries on his chest and forehead.
A day later he succumbed to his injuries in the hospital.
The deceased’s mother and brother filed a complaint against the conductor and driver of the
bus (appellants) for compensation along with the insurer under Section 110D of the Motor
Vehicles Act.
ISSUES RAISED
1. Is the driver or the conductor of the bus liable for negligence or rashness?
2. Should the insurer pay any compensation?
3. Is the deceased liable for contributory negligence?
4.Are the petitioners entitled to receive the compensation?
CONTENTIONS OF THE PARTIES
Arguments of the appellant:
All the appellants denied claims for compensation.
The driver and the conductor denied negligence and instead contested that the deceased
should not have sat on the roof of the bus.
The insurer also contested a similar claim and also appealed that this particular accident was
not covered under the Motor Vehicles Act.
Arguments of the respondent:
The mother of the deceased stated that her son was 24-25 years of age and was a person of
good health. He was a hawker and would contribute for daily expenses in his house.
P.W. 2 stated that the conductor invited the passengers to sit on the roof of the bus due to the
lack of space inside the bus.
P.W. 3 corroborated the statement of P.W. 2 and P.W. 4 stated that the deceased died in the
hospital and was later buried. No evidence against the insurer was stated.
Judgement
The Tribunal found contributory negligence on the part of the deceased for not taking
precautionary care, but acknowledged negligence by the conductor for inviting passengers
onto the bus roof and the driver for reckless driving. The deceased's contributory negligence
reduced the appellants' liability. The Tribunal determined the deceased would have lived for
another 30 years but rejected the insurer's defense, affirming coverage under the Motor
Accident Claim. The Court dismissed contributory negligence for the deceased, asserting that
passengers rely on the bus driver and conductor for safety. It emphasized passengers'
reasonable expectation of a safely driven bus, noting that the deceased and others were
invited by the conductor to sit on the roof.

hollywood silver fox farm v Emmett {private nuisance}

Facts
The claimant bred silver foxes for their fur. The foxes are, by their nature, of a timid
disposition and are easily scared. When they are scared they are liable to miscarry. The
defendant was a farmer and animal rights activist who owned land adjoining to the fox farm.
He objected to the carrying on of the farm and deliberately encouraged his son to fire his gun
in order specifically to frighten the foxes and impair their ability to breed. It was hoped that
this would cause economic harm to the fox farm and cause them to end their operation. The
foxes miscarried and the claimant sued in private nuisance requesting an injunction to prevent
this behaviour.
Issues
Whether there was an action capable of constituting a private nuisance considering the
unusual sensitivity of the foxes.
Whether or not this unusual sensitivity was important considering the defendant’s intention
to scare the foxes.
Decision / Outcome
The claim was successful. The defendant’s actions did constitute a private nuisance even
considering the unusual sensitivity of the claimant. The foxes were unusually timid and
sensitive to noise, because the defendant intentionally attempted to frighten the foxes through
the firing of his gun on his own land. This was done with the intention of impairing their
ability to breed and to cause the fox farm economic loss as a result. As it was intentional the
defendant’s actions could, and did, constitute a private nuisance. The injunction could be
granted to restrain the defendant from firing guns on his own land because of this.
Referred cases:
Dr. ram raj singh v babulal
Christe vs davay
Girija prasad vs umashankar Pathak {malicious prosecution}

Brief Facts:
the plaintiff was a practicing advocate at Panna in M.P. he was also a Jan Sangh leader and
had started an agitation on the question of food scarcity in the city and one Jan Sangh worker
had gone to a hunger strike. Girija Singh a sub inspector was deputed outside the collectorate
to control the crowd that had collected there to support the agitation. Then there were some
bullet shots made from the revolver of the sub inspector. He stated that while he was
grappling with some person who was assaulting him the revolver got fired mistakingly. On
that date Girija Singh had lodged an FIR stating that he was assaulted by some person. his
watch snatched and also the plaintiff Uma Shankar pathak was present at the scene and was
instigating the crowd against him . the case was investigated and the plaintiff was arrested on
15th jan and released on bail on 18th jan. he was finally acquitted on june 30th 1965 . the
plaintiff then sued 4 persons for malicious prosecution
Issues:
Whether there was a conspiracy by the defendants to maliciously prosecute Umashankar
Pathak.
Arguments:
Plaintiff (Umashankar Pathak):
Alleged a conspiracy against him due to his role as a Jan sangh leader and his history of
complaints against police officers. Contended that the charge-sheet was filed with malice and
without reasonable and probable cause. No evidence too.
Defendants (G): Denied the existence of a conspiracy. Argued that the charge sheet was
based on credible information, and there was reasonable and probable cause.
Judgment:
The court found Girja Prasad liable for malicious prosecution, as he not only filed a false
report but also gave false evidence during the investigation and trial. The court emphasized
that the duty of an Investigating Officer is to find reasonable and probable cause, and on the
evidence. The court also noted that damages awarded were reasonable, considering
Umashankar Pathak's status as a Jan sangh leader and Advocate, the period of arrest, and the
multiple hearings in the criminal case.
Rylands v Fletcher (1868) LR 3 HL 330 {strict liability}
Facts of the Case
The defendant, Rylands constructed a reservoir over his land for providing water to his mill
via independent contractors. There were some old disused shafts under the reservoir which
the contractors failed to notice. As a result these shafts remained unblocked. When the water
was filled in the reservoir, it burst through the shafts and flooded the plaintiff's coal mines on
the neighbouring land. Though there was no negligence on the part of the defendant, Rylands,
the plaintiff, Fletcher sued the defendant for damages.
Issues:
Whether there was any nuisance or not?
Was the use of Defendant's land unreasonable and thus was he to be held liable for damages
incurred by the Plaintiff?
Court of Exchequer Chamber
Aggrieved by the decision of Court of Exchequer of Pleas, Fletcher appealed to the
Exchequer Chamber composed of six judges. The judges overturned the decision of Court of
Exchequer of Pleas. It was in this Court where the rule of Strict liability was first time
propounded.

Blackburn J. discussed on behalf of all Judges and stated that:

Thus, the rule of strict liability was laid: that if a person bought any dangerous thing on his
premises and if that thing escapes and cause damage, then the person would be held liable for
all the damage it has caused regardless of his negligence, knowledge or intention. The Court
however, also provided certain exceptions where this rule won't be applied i.e. Act of God,
Plaintiff's own default. But as none of these exceptions are there in Rylands v/s Fletcher case,
the Court held Ryland liable for the damage caused to Fletcher.
House of Lords
Aggrieved by the judgement of Court of Exchequer Chamber, Rylands went for appeal in
House of Lords. The House of Lords dismissed the appeal but went further to explain the rule
of strict liability more granulously and put some limitations on the rule of strict liability. The
Court held that for the applicability of the rule of strict liability, it is necessary that the land
from which escape occurs must have been modified in a way which would be considered non
natural, unusual or inappropriate[ii]. Thus, "Non natural use of land" was made an essential
for the applicability of rule of strict liability.
CASSIDY VS DAILY MIRROR NEWSPAPER {defamation}

Facts
The claimant was known as the lawfully wedded wife of a famous race-horse owner and
former General of the Mexican Army. The claimant and her husband lived separately but he
often visited her at her workplace. The defendant newspaper published a photograph of the
claimant’s husband with a woman labelled as Miss X, to whom – as alleged by the attached
article – he was engaged.
Issues :
Weather the statements are defamatory or not?
Arguments
The claimant argued that the publication caused damage to her in that it was intended to
imply that her husband was living with her immorally. The defendants denied any such
intention and even the possibility of their publication having such a meaning. The defendants
refused to admit, even after seeing evidence thereof, that the claimant was married to the
subject of the publication. The trial judge found that in the circumstances of this case, the
publication could be seen as having a defamatory meaning. He directed the jury that what
mattered was the perception of the reasonably minded person who knew the circumstances of
the case. The jury found in favour of the claimant.
Decision / Outcome
The Court of Appeal held, affirming the lower court’s decision, that the publication in
question was capable of constituting defamation. It found that the jury was right to find that
the publication made the reasonably minded person believe that the claimant’s moral
character was questionable. Referred cases :1. D.P.Chaudary vs manjulatha 2.Newstead v.,
London Express Newspapers Ltd, 1939

Youssoupoff v Metro-Goldwyn-Maher Pictures Ltd (1934)

References:
Coram: Scrutton LJ, Slesser LJ
Ratio: The plaintiff (herself a Princess) complained that she could be identified with the
character Princess Natasha in the film ‘Rasputin, the Mad Monk’. On the basis that the film
suggested that, by reason of her identification with ‘Princess Natasha’, she had been seduced
by Rasputin, she was awarded andpound;25,000 damages. The defendant contended that if
the film indicated any relations between Rasputin and ‘Natasha’ it indicated a rape of Natasha
and not a seduction.
Held: In defamation cases, the setting of the level of damages is for the jury.
Slesser LJ said that defamation could include words which cause a person to be shunned or
avoided: ‘not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or
contempt by reason of some moral discredit on [the plaintiff’s] part, but also if it tends to
make the plaintiff be shunned and avoided and that without any moral discredit on [the
plaintiff’s] part. It is for that reason that persons who have been alleged to have been insane,
or be suffering from certain diseases, and other cases where no direct moral responsibility
could be placed upon them, have been held to be entitled to bring an action to protect their
reputation and their honour.’ and, on the facts:
‘One may, I think, take judicial notice of the fact that a lady of whom it has been said that she
has been ravished, albeit against her will, has suffered in social reputation and in
opportunities of receiving respectable consideration from the world.’ and
‘I, for myself, cannot see that from the plaintiff’s point of view it matters in the least whether
this libel suggests that she has been seduced or ravished. The question whether she is or is not
the more or the less moral seems to me immaterial in considering this question whether she
has been defamed, and for this reason, that, as has been frequently pointed out in libel, not
only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by
reason of some moral discredit on her part, but also if tends to make the plaintiff be shunned
and avoided and that without any moral discredit on her part. It is for that reason that persons
who have been alleged to have been insane, or to be suffering from certain diseases, and other
cases where no direct moral responsibility could be placed upon them, have been held to be
entitled to bring an action to protect their reputation and their honour.’ and
‘When this woman is defamed in her sexual purity I do not think that the precise manner in
which she has been despoiled of her innocence and virginity is a matter which a jury can
properly be asked to consider.’
Scrutton LJ defined a defamatory statement as ‘a false statement about a man to his
discredit’.
As to the assessment of damages by the jury: ‘The constitution has thought, and I think there
is great advantage in it, that the damages to be paid by a person who says false things about
his neighbour are best decided by a jury representing the public.’
Jurisdiction: England and Wales
This case cites:
Approved – Scott v Sampson QBD ([1882] 8 QBD 491)
The court explained why evidence of particular acts of misconduct on the part of the Plaintiff
tending to show his character and disposition should be excluded, saying ‘Both principle and
authority seems equally against its admission. It would give
Holmes v Ashford, 1950
A hairdresser treated the plaintiff’s hair with a dye, and as a result the plaintiff contracted
dermatitis. The dye came to the hairdresser in labelled bottles together with instructions.
Both the labels and the brochure warned that the dye might be dangerous to certain skins,
and recommended a test before it was used. The hairdresser had read the labels and the
brochure and was aware of the danger, but he made no test and did not warn the plaintiff.
The plaintiff claimed damages against the hairdresser and the manufacturers, and was
awarded judgment against both. The manufacturers appealed.
Held:
A manufacturer who puts a dangerous article on the market must take reasonable
steps to prevent any person coming into contact with it from being injured, but it was not
necessary in every case that precautions should be taken to ensure that the ultimate
recipient of the article was warned of the danger; the manufacturers had given the
hairdresser a warning which was sufficient to intimate to him the potential danger of the
dye, and it was not necessary that they should have warned the plaintiff; and, therefore,
they had discharged the duty which was on them.

Ward vs Hobbs 1878

FACTS:
Hobbs The defendant had a pigs a Beller plaintiff pigs He made bee was He used to he was a
auction to sell pigs. The wart bear pigs he also had some wanted to buy more without asking
Mere he bought a group of pigs. actually the pigs sold by defendant has a typhoid disease
which was known to defendant but he did not informed about it... after some days the pigs of
plaintiff & which were sold by defendant died. filed asoit Alaintif againg defendant in House
of lords
Judgement:
House of lord's held that according of a seller wes anfice con disguise to conceal the defects
in product to be sold it would be amount fraund! on the buyer still no duty defects in product
is Imposed to disclose the on seller by the doctrine of caveat emptor, An obligation to use
cave & skill while purchasing.. goods imposed on the buyer by doctrine of caveat emptor