In
a yet another exemplary move, on 27th March, 2019 the Hon’ble Delhi
High Court has directed Impresario Entertainment and Hospitality, owner of the
‘SOCIAL’ restaurant chain, to provide wholesome meals to children in ten
orphanages and ten foster care homes in Delhi for two years.
The
restaurant chain will continue providing one meal per day to the children
lodged in these centres until the expenditure incurred by it becomes equal to
the punitive costs of Rs 20 lakh imposed on it by the Court.
The
owner of the SOCIAL chain will also provide sanitary napkins to adolescent
girls at these centres.
The
order was passed by a Single Judge Bench of Justice Najmi Waziri in a
contempt case filed against Impresario Entertainment.
Luxury
accessories and apparel label Hermes International had moved the Delhi High
Court after discovering that Impresario Entertainment was violating its
trademark, logo etc. Without going into the merits, the case was disposed of
after Impresario Entertainment stated that it would not use the Hermes
trademark or other intellectual property to its benefit.
Despite
this undertaking, Impresario Entertainment’s Goregaon Social in Mumbai
displayed a red watch-box with the Hermes logo and the word ‘Herpes’.
Aggrieved
by the display, Hermes International moved the High Court. It was
submitted that the word ‘Herpes’ was written in the same font style and size as
‘Hermes’. Therefore, an unsuspecting individual would ascribe some affinity
to Hermes International, it was stated.
Further
noting that the word ‘Herpes’ is associated with a skin disease, it was
submitted that the display was in bad taste and reflected poorly on Hermes
International.
Impresario
Entertainment, on the other hand, argued that the element of humour was part of
public life. The display on the red box was a word-play and it never intended
any harm, it was submitted.
The
owner of SOCIAL vowed to abide by any such terms and conditions that may be
imposed on it by the Court, in larger public service. Hermes International also
agreed to forego the sum imposed as costs on Impresario Entertainment.
Quantifying
the punitive damages in the contempt proceeding at Rs 20 lakh, the Court
directed Impresario Entertainment to provide one wholesome meal per day to
children in ten orphanages and ten foster care homes in Delhi for two years against
this amount.
The
meal would be equivalent to a mid-day meal as provided by government schools,
the Court said. The Court also directed Impresario Entertainment to file a
compliance report every four weeks on the distribution of meals.
As
per the order, Impresario Entertainment would also have to install a commercial
water purifier at Delhi’s 150-year-old orphanage, Bhachhiyon Ka Ghar.
Additionally,
it was also ordered to provide sanitary napkins to girls aged 6 to 18
years at these centres. The napkins would be procured by Impresario
Entertainment from a Nagpur-based company which also provides sanitary napkins
to the Delhi Government under the Kishori Shakti Yojna.
As a natural corollary to this judgement, the question arises “Why are
doctors subject to criminal prosecution?”
To prosecute a doctor for criminal medical negligence, any medical action
taken by him/her, should have been done with an intention to harm or with the
knowledge that it can cause harm and the patient is not informed about the
same.
But, no doctor chooses to become a doctor to harm a patient intentionally
as was also observed by the Hon’ble Supreme Court in its landmark judgment
in Jacob Mathew vs State of Punjab & Anr, which stated: “No
sensible professional would intentionally commit an act or omission which would
result in loss or injury to the patient as the professional reputation of the
person is at stake. A single failure may cost him dear in his career…
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.” Also, no doctor
practices without informed consent.
To err is human and despite all care, errors do happen inadvertently.
Difference of opinion, error of judgment, medical errors and medical
accidents are not medical negligence. Experiencing a bad outcome does not
always mean medical negligence. This has also been the position of the Supreme
Court of India in its various judgements.
Doctors are professionals and are bound by the MCI Code of Ethics
Regulations.
If there is a Code of Ethics for doctors, then why should they be charged
under Penal Codes?
Justice Waziri is known to hand out punishments with a difference.
Earlier this month, Justice Waziri quashed an FIR against a couple, who had
employed a minor for household work, and directed them to plant 100 trees and
pay Rs 1.5 lakh to the victim. He also directed two other persons, who were
agents and through whom the minor girl was employed at the couple's house, to
offer manual labour for plantation and care of the trees (Outlook India).
In February this year, Justice Waziri had ordered 2G case accused - Swan
Telecom’s promoter Shahid Balwa, the director of Kusegaon Fruits and
Vegetables, Rajeev Agarwal, and three firms, namely Dynamic Realty, DB Realty,
and Nihar Constructions - to plant 3,000 trees each in the Delhi’s South Ridge
forest area. He also specified that the plants should be indigenous, three and
a half years of nursery age and six feet in height. They will also have to
submit photographic proofs in the court ensuring plants' good health (Business
Today).
Why can’t the medical councils and courts follow suit and award punishments
of a similar nature instead to erring doctors?
Why are they still being penalized and punished?
It is now becoming evident that more than the medical or clinical factors,
it is the social factors that determine the health outcomes.
Doctors are not just clinicians; they are change agents and act as a
catalyst for change and transformation in their patients as well as the
community.
Regulation 8.2 of the MCI Code of ethics clearly states “…If the medical
practitioner is found to be guilty of committing professional misconduct, the
appropriate Medical Council may award such punishment as deemed
necessary or may direct the removal altogether or for a specified
period, from the register of the name of the delinquent registered
practitioner…”.
(Source:
Bar and Bench)
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
