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…”.