NCDRC: A doctor is vicariously liable for the acts of team members
The National Consumer Disputes Resolution Commission (“NCDRC”), in the case of Mohan Dai Oswal Cancer Treatment & Research Foundation & Ors. V. PrashantSareen &Ors., has passed an order holding that a doctor is vicariously liable for the medical negligence committed by the members of his team while assisting him in his treatment.
In the present case, two aggrieved parents approached the Chandigarh State Consumer Commission (“CSCC”) to file a complaint against two doctors claiming that they were responsible for the death of their three year old daughter undergoing cancer treatment. The CSCC awarded them compensation due to medical negligence committed by the doctor while administering a drug as a part of the treatment that ultimately caused the death of the child.
The doctors challenged the award at the NCDRC contending that the young patient died owing to the advance stage of cancer she was suffering from and not due to any negligence on their part. One of the doctors in particular, claimed that he had only prepared the ‘Protocol’ for the treatment and had not himself administered the drug in question.
Relying on previous judgments on medical negligence, medical literature, reports and expert opinions, the NCDRC concluded that there is no evidence to prove that a patient could not recover from the specific stage of cancer, particularly after improving through the initial cycles of treatment.
Further, the principle of ‘Duty of Care’ was highlighted to be construed in a way to include not the duty of care of the treating doctor/head of the department alone but of every member on the team assisting during the course of the treatment. Consequently, the doctor was held to be vicariously liable for any omissions/commissions of his team members when the entire treatment is administered according to the treatment protocol prepared by him.
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In medico-legal cases, failure in fulfilling the duty of care owed to the patients will amount to medical negligence on part of the healthcare professionals. Due to the inherent nature of service being provided where the health and lives of the patients are at stake, the courts in India have established a high standard of care to be fulfilled by the doctors and every professional involved at different stages of the treatment administered while working under the directions of a head doctor. This helps in establishing a regime where the medical systems in the country will be responsible for their acts at every stage preventing them from escaping liability on grounds of lack of information or seemingly complex nature of the ailments.
Suits in relation to passing off of registered design as trademarks will be maintainable at present: Delhi HC
The Division Bench of the Delhi High Court has held that the judgment of the Single Bench in Crocs Inc. USA v. Aqualite India Ltd & Anr will not be regarded as a precedent to bar suits that seek relief of passing off action in cases where registered designs are used as trademarks.
The appeal was filed by Crocs USA, the multinational footwear manufacturer, against the order of the Single Bench that led to the dismissal of six passing off suits filed by Crocs based on the understanding that since a registered design did not constitute a trademark, a passing off action for the same will not be maintainable.
On admitting the appeal, the Division Bench differed from the stance of the Single Bench that a design itself cannot constitute a trademark unless there were “extra features” added to the design, that went on to signify the goodwill of the manufacturer. In this case, the Single Bench reiterates the minority view in Mohan Lal v. Sona Paint, stating it to be re affirmed in Carlsberg Breweries v. Som Distilleries and Breweries Ltd where passing off action was not maintainable in respect of registered design. The Division bench found this holding to be based on an “incorrect understanding” of the dicta of previous judgments, because this reasoning was not even impliedly affirmed by the court in the Carlsberg case.
Therefore, the Division Bench found merit in this contention raised by the plaintiffs and held that suits for passing off action for registered designs as trademarks will be maintainable in the current instance.
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It is important to note that in this particular case, the Division Bench found fault with the holding as it was based on the incorrect understanding of previous judgments by the Single Bench rather than its interpretation of the law itself. Nevertheless, a blanket exclusion of passing off claims for registered designs would allow unscrupulous manufacturers to swindle customers by passing of their products as those of the lawful owners – which make the customers as well as the owners face adverse consequences. Moreover, to deny the right to institute a suit just because it is not rooted in the statute does not serve the ends of justice. Passing off claims in respect of registered designs must be allowed, as held by the Division Bench, in order to curb the misuse of the law.
MCA notifies the Companies (Prospectus and Allotment of Securities) Third Amendment Rules, 2019
The Ministry of Corporate Affairs (“MCA”) through a notified the Companies (Prospectus and Allotment of Securities) Rules, 2019 (“the Amendment Rules”) whereby rule 9A of the Companies (Prospectus and Allotment of Securities) Rules, 2014 (“the Principal Rules”) has been amended to provide that every unlisted public company governed by rule 9A is required to submit form PAS-6 to the Registrar within 60 days from the conclusion of each half year.
Rule 9A of the Principal Rules mandated every unlisted public company to issue securities in dematerialised form and to facilitate dematerialisation of all its existing securities. Further, these companies were required to submit an audit report in pursuance of the other obligations under the Rule 9A.
This audit report has been substituted by Form PAS-6 which must be submitted to the Registrar with the prescribed fee along with due certification from the Company Secretary or Chartered Accountant in practise.
The Amendment Rules also require companies to immediately bring to the notice of the depositories any differences observed in its issued capital and capital held in dematerialised form.
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The Amendment Rules have been introduced to ensure more structure and transparency in the audit reports related to dematerialisation of securities filed by the unlisted public companies.
Form PAS-6 lays contains an exhaustive list of details to be disclosed by the unlisted public companies related to the different types of shares, the number of shares and the persons holding these shares in dematerialised form.
This is a welcome move as it not only simplifies the process of filing the audit reports with the Registrar but also ensures compliance with the rules related to dematerialisation of shares.
Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney