Not knowing the latest may not be medical negligence

You have the right to recorder your earlier treatment

SC recalls its earlier order as SC was not aware about the amended law

Dr KK Aggarwal and Advocate Ira Gupta

Recently, on 7^th March 2019 the Hon’ble Supreme Court consisting of the bench of Hon’ble Mr. Justice Abhay Manohar Sapre and Hon’ble Ms. Justice Indu Malhotra has recalled its earlier order and judgment dated 7^th January 2019 passed in the matter titled as “Birla Institute of Technology versus The State of Jhrkhand & Others, Civil Appeal No. 2530 of 2012.

Earlier on 07^th January 2019, the Hon’ble Court had placed reliance on the decision Ahmadabad Pvt. Primary Teachers Association vs.Administrative Officer and Others (2004) 1 SCC 755, which was brought to the Court’s notice by the learned counsel appearing for the appellant and allowed the appeal filed by the appellant.

However, after the pronouncement of the order in this appeal, it came to the notice of the Hon’ble Supreme Court that consequent upon the decision of this Court rendered in Ahmadabad Pvt. Primary Teachers Association (supra), the Parliament amended the definition of the word “employee” as defined in Section 2(e) of the Payment of Gratuity Act, 1972 by Amending Act No. 47 of 2009 on 31.12.2009 with retrospective effect from 03.04.1997. This amendment was not brought to the notice of the Hon’ble Court while passing the order on 07.01.2019 in this appeal.

Thereafter, the Hon’ble Supreme Court, suo motu took up the appeal to its file and directed it to be listed on the Board. On 09.01.2019 the appeal was accordingly listed for orders. This Court then stayed its order dated 07.01.2019 and passed the following order:

“On 07.01.2019 this Court delivered the judgment allowing the appeal and setting aside the order of the High Court impugned therein. Today, we have listed the matter suo motu. The reason being that during the course of hearing of the appeal it was not brought to the notice of the Bench that the judgment of this Court in Ahmedabad Pvt. Primary Teachers Association vs. Administrative Officer & Ors. (2004) 1 SCC 755 on which the reliance was placed for allowing the appeal necessitated the Parliament to amend the definition of “employee” under Section 2(e) of the Payment of Gratuity Act by Amending Act No.47 of 2009 with retrospective effect from 03.04.1997. In other words, though the definition was amended in 2009 by Act No.47 of 2009, yet the same was given retrospective effect from 03.04.1997 so as to bring the amended definition on Statute Book, from 03.04.1997. Keeping in view the amendment made in the definition of Section 2(e), which as stated above was not brought to the notice of the Bench, this issue was not considered though had relevance for deciding the question involved in the appeal. It is for this reason, we prima facie find error in the judgment and, therefore, are inclined to stay the operation of our judgment dated 07.01.2019 passed in this appeal. The judgment dated 07.01.2019 shall not be given effect to till the matter is reheard finally by the appropriate Bench. The Registry is directed to list this matter for rehearing before the appropriate Bench comprising of Hon’ble Mr. Justice Abhay Manohar Sapre and Hon’ble Ms. Justice Indu Malhotra as early as possible.”

In view of the above, the said appeal came up for hearing and after hearing the submissions of all the parties, the Hon’ble Division Bench of Supreme Court recalled its earlier judgment and passed the judgment dated 7^th March 2019.

 Similarly, in medical profession  not knowing the latest drug, investigation or treatment may not be a crime or medical negligence. 

In medical profession, everyday there is some new invention or discovery, however, doctors are not always updated about every new invention or discovery. But that does not mean, doctors are liable for medical negligence. 

But, the day doctors come to know about the latest new discovery and invention, they must correct themselves. 

 Any judgment or decision taken by a doctor without any latest information may not be negligence. 

It important to note that  doctors should never cut or modify previous written notes on the grounds that an old wrong decision was taken.

  A wrong decision based on available information as previous opinions, reports, treatments were not shown or were not available can only be a judgment error.

  

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA