Corpus Fund in Tamil Nadu for Compensation awarded by Courts

ABSTRACT
Compensation - Recommendation of the Maruthamuthu Committee for creation of Corpus Fund to make payment of compensation awarded by courts - Accepted - Creation of Corpus Fund – Orders – Issued.
-------------------------------------------------------------------------------------------------------------------
HEALTH AND FAMILY WELFARE (E1)DEPARTMENT
G.O.(Ms) No.81 Dated 25.4.2003
Read again:
1) G.O.Ms.No.133, Health and Family Welfare Department, dated 9.7.2002.
Read also:
2) From the Director of Medical and Rural Health Services, Letter No.40985/
E7/2/99, dated 6.8.2002.
3) From the Director of Medical and Rural Health Serviced, letter No.40985 /
E7/2/99, dated 17.2.2003 and 24.3.2003.

-------
ORDER:

In the G.O. first read above orders were issued on the recommendations of Justice Maruthamuthu Committee constituted to give its report suggesting guidelines and measures to be adopted in respect of litigations in court arising out of the mishaps. In the said Government Orders were issued inter-alia for the creation of Corpus Fund from the contribution of Rs.10/- (Rupees ten only) per month from every doctor.

2. The Director of Medical and Rural Health Services, in his letter third read above has sent proposals for the creation of a Corpus Fund.

3. The Government accordingly constitute a Corpus Fund to provide compensation awarded by the courts on the cases filed against Government Doctors for occurrence of Medical mishaps. Each Government Doctor will contribute a sum of Rs.10/- (Rupees ten only) per month to build up the above fund.

4. The monthly subscription of Rs.10/- from each Government Doctor shall be recovered from the salary from the month of April 2003.

5. The Commissioner of Treasuries and Accounts shall administer the Fund. The transaction will be subjected to Audit by the Internal Auditor and Chief Auditor of Statutory Board.

6. The monthly subscription of Rs.10/- recovered from the said doctors shall be credited to the following new head of account.

" K. Deposits and advances -(b) Deposits not bearing interest -8443-00 Civil Deposits -800. Other Deposits - AU. Corpus Fund for payment of Compensation awarded by courts on the cases filed against Government Doctors" (D.P.C.No.8443 00 800 AU 0004 ) (Receipts)

7. Sanction of compensation awarded by the court shall be debited under the following new head of account.

" K. Deposits and Advances -(b) Deposits not bearing interest - 8443-00Civil Deposits - 800. Other Deposits - AU. Corpus Fund for payment of Compensation awarded by courts on the cases filed against Government Doctors" (D.P.C.No.8443 00 800 AU 0003) (outgo)

8. The Director of Medical Education / The Director of Medical and Rural Health Services / Director of Public Health and Preventive Medicine / Director of Family Welfare shall process the sanction of compensation awarded by the court in respect of the said doctors under their control taking into account of the recommendation of the High Level Committee constituted under the Tamil Nadu Government Doctors Corpus Fund as in the Annexure to this order and accord sanction for the amount of compensation payable from the Corpus Fund and forward the same to the Commissioner of Treasuries and Accounts.

9. The Commissioner of Treasuries and Accounts shall issue Cheques / Demand drafts as the case may be based on the sanction accorded by the Director of Medical Education / Director of Medical and Rural Health Services / Director of Public Health and Preventive Medicine / Director of Family Welfare and intimate them.

10. The Commissioner of Treasuries and Accounts shall be the Estimating, Reconciling and Controlling Authority for the above Head of Account.

11. No schedules need be attached to pay bills for the deduction made nor separate accounts maintained therefor.

12. Pay drawing Officers will be responsible for the prompt recovery subscription.

13. The rules framed for administrating the scheme are appended to this order.

14. The operation of the Corpus Fund will be reviewed after one year depending upon the functioning of the scheme.

15. This order issues with the concurrence of Finance Department vide its U.O.No.29/JS (Per) /2003, dated 22.4.2003.



( BY ORDER OF THE GOVERNOR)

GIRIJA VAIDYANATHAN,
SECRETARY TO GOVERNMENT

To
The Commissioner of Indian Medicine and Homoeopathy,
Chennai-106.
The Director of Medical and Rural Health Services, Chennai-6.
The Director of Medical Education,Chenai-10.
The Director of Public Health and Preventive Medicine, Chennai-6.
The Director of Family Welfare, Chennai-6.
The Accountant General, Chennai-18/35.
The Accountant General (By name), Chennai-18.
The Commissioner of Treasuries and Accounts, Chennai.
The Pay and Accounts Officer (South), Chennai-35.
The Pay and Accounts Officer (North), Chennai-1.
The Pay and Accounts Officer (East), Chennai-5.
The Pay and Accounts Officer, Madurai.
All the District Treasuries Officers.
The General Secretary, Government Doctors Association.

Copy to:

The Finance Department, Chennai-9.
The Finance (BG.II) Department, Chennai-9.

/ Forwarded By Order /



SECTION OFFICER





Draft Rules Governing the Constitution of a Fund for the purpose of 'Corpus Fund' to Government Doctors for Occurrence of Medical Mishaps.


1. These rules shall be called " Tamil Nadu Government Doctors Corpus Fund Rules 2003"
2. These rules shall come into force on 1st April 2003
3. Scope:

The scope of these rules shall be to constitute a separate fund for the purpose of granting compensation or to deposit compensation amount in the courts for filling appeal so as to meet the judicial cost of cases for occurrence of Medical Mishaps during treatment in Government Medical Institutions.

4. The Commissioner of Treasuries and Accounts shall be the Administrator of the Corpus Fund. The Commissioner of Treasuries and Accounts shall issue Cheques / Demand drafts as the case may be based on the sanction accorded by the Director of Medical Education / Director of Medical and Rural Health Services / Director of Public Health and Preventive Medicine / Director of Family Welfare to the payee as mentioned by them in the sanction order.

5. Extend of application:

These rules shall extend to the whole of the State of Tamil Nadu. These rules shall apply to all Categories of full-time, part time, regular (time scale) and temporary service Government Doctors in the Government Medical Institutions of the Government of Tamil Nadu.

6. Constitution of the Fund:

There shall be constituted a fund for the purpose of granting compensation for depositing compensation amount in the courts for filing appeal in cases of alleged Medical and Surgical Mishaps in Government Medical Institutions.

7. The fund shall be constituted with a monthly subscription of Rs.10/- (Rupees ten only) from each Government Doctor from his / her salary every month from the month of April, 2003 and the amount shall be credited into the deposit Account. The Pay Drawing Officers shall recover the amount of subscription and credit the same to the fund by enclosing necessary schedule in the pay bills. Copy of the schedules shall be sent to the Commissioner of Treasuries and Accounts through Pay and Accounts Office / Treasury.

8. Procedure for Assistance:

Whenever the court directs the Government Doctors / Dean / Head of Government Medical Institutions to pay compensation to petitioners or to deposit compensation amount in the court for filling appeal in cases of alleged Medical and Surgical Mishaps during Professional duties of Government Doctors in Government Hospitals / Government Medical Institutions the concerned Government Doctor shall made an application to the Chairman and Member Secretary, High Level Committee. The High Level Committee will examine the application and decide whether the amount of compensation has to be paid or to be deposited in the higher courts at the appellate stage. The High Level Committee may go through the documents and obtain suitable Technical Opinion etc. for arriving correct decision in this regard and recommend for the sanction of compensation of the Director of Medical Education / Director of Medical and Rural Health Services / Director of Public Health and Preventive Medicine / Director of Family Welfare. Finally if the court's verdict is in favour of Government Doctors on appeal, then the amount so received from the court shall be remitted back to the Corpus Fund. Moreover if it comes to light that any misrepresentation by Government Doctors has been made before the committee / the Government shall have the power to recommend to Director of Medical Education / The Director of Medical and Rural Health Services / Director of Public Health and Preventive Medicine / Director of Family Welfare to recover the amount from the Government Doctors concerned either in lumpsum or in instalments from their salary. The expenditure by way of compensation shall be debited under Deposit Account (outgo)

9. Governance of the Fund:

The Tamil Nadu Government Doctors Corpus Fund constituted under these rules shall be a separate fund under the governance of the State Government.

10. A High Level Committee is constituted at the State level as shown in the Annexure of the Rules for scrutinising the applications received for payment from this fund and for ordering the payment from out of his fund. The High Level Committee shall sit and frame guidelines for scrutinising the applications received for payment from the corpus Fund.
















ANNEXURE

HIGH LEVEL COMMITTEE

1. The Director of Medical and Rural Health
Services, Chennai-6. : Convenor - Member Secretary

2. The Director of Medical Education,
Chennai-10. : Member

3. The Director of Family Welfare, Chennai-6. : Member

4. The Director of Public Health and Preventive
Medicine, Chennai-6. : Member

5. The Director of Indian Medicine and
Homoeopathy. : Member

6. Head of Institutions where such Medical
Mishaps occurred : Member

7. A Nominee from Tamil Nadu Government
Doctors Association : Member



/ True copy /


Section Officer

Site for Doctors and Lawyers

If you are a lawyer looking for Medical Information or If you are doctor looking for legal information, these are the sites for you

Doctors and Law

Medico Legal

HIV Disclosure and Marriage

Subject Index

Consumer Protection Act, 1986 — appellant complained about alleged unauthorised disclosure by the Hospital of his HIV status to the relatives of his fiancée -- sought compensation — from the respondents for breach of their duty to maintain confidentiality and consequential discrimination, loss in earnings and social ostracism.

CASE NO.:
Appeal (civil) 4641 of 1998

PETITIONER:
Mr. "X"

RESPONDENT:
Hospital "Z"

DATE OF JUDGMENT:
10/12/2002

BENCH:S. RAJENDRA BABU, P. VENKATARAMA REDDI & ARUN KUMAR.

JUDGMENT:J U D G M E N T

RAJENDRA BABU, J. :

Civil Appeal No. 4641 of 1998 arose out of an order made by the National
Consumer Disputes Redressal Commission (for short 'the Commission')
dismissing a petition and also an application for interim relief summarily by an
order made on 3.7.1998 on the ground that the appellant should seek his remedy
in a civil court.

The case that arose for consideration before this Court, in brief, is as
follows.

The appellant completed his studies leading to Degree of MBBS from
Jawaharlal Institute of Post Graduate Medical Education and Research,
Chandigarh in the year 1988. In June 1990 he joined the Nagaland State
Medical and Health Service as Assistant Surgeon Grade-I and thereafter he was
selected for admission to MD Pharmacology. However, he was continued in
service on the condition that he would join his duties after completing his studies.
Later on, he was given admission in Diploma in Opthamalogy in September
1991 and he completed that course in April 1993 and rejoined his service in the
Nagaland State as Assistant Surgeon Grade-I as Junior Specialist. He was
deputed to accompany his uncle who was a Minister of Transport and
Communication to the respondent hospital at Chennai and who was diagnosed
as suffering from Aortic Anuerism. As the patient was anaemic, the surgery was
postponed. The appellant and his driver offered to donate blood and blood
samples of the appellant were sent for testing. In the meanwhile, the patient
was operated upon for Aortic Anuerism and was discharged from the hospital on
10.6.1995 and the appellant and his driver took him to Dimapur. The appellant
was engaged to be married which was scheduled to be held on 12.12.1995. The
appellant, his fiancee and his mother-in-law left for Darjeeling and Kolkatta to do
some shopping and thereafter on 18.10.1995 they returned to Kohima. On
12.11.1995 the Minister of Transport and Communication called the appellant's
brother-in-law and sister to his residence and informed that the appellant's
marriage was being called off; that the appellant's blood was tested at hospital;
that it was found to be HIV positive; that this information had been furnished to
him by a Doctor [who was impleaded as respondent No. 2]; that he had of his
own accord re-confirmed the appellant's HIV status by personally calling the
respondent No. 2 and was informed by him of the same. Therefore, the
marriage of the appellant was called off on account of his HIV positive status by
his brother-in-law. Next day the appellant went to the hospital for further
confirmation and it was confirmed that he was HIV positive. The appellant tried
to contact the Director of the Hospital to enquire about the unauthorised
disclosure by the hospital about his HIV status as he was unable to obtain any
information from the management regarding the said disclosure. As a result
thereof, he was forced to leave Kohima as several people including the
appellant's own family members and certain other members of the community
were now aware of the appellant's HIV positive status and he was socially
ostracised. Aggrieved by the unauthorised disclosure and on the basis that the
hospital had a duty to maintain the confidentiality of personal medical information
of the appellant, he filed a petition before the Commission seeking compensation
from the respondents for breach of their duty to maintain confidentiality and
consequential discrimination, loss in earnings and social ostracism. For interim
relief an interlocutory application was also filed. In those circumstances, the
Commission dismissed the petition summarily and directed him to initiate civil
proceeding for an appropriate relief.

A Special Leave Petition was filed before this Court. This Court made an
order on 21.9.1988 dismissing the said petition. However, in the course of the
order several findings have been given, particularly those relating to "suspended
right to marry". In that proceeding, this court heard only the appellant and there
was no issue of notice to any other person nor this Court had occasion to hear
any of the persons representing the HIV or AIDS infected persons or their rights,
much less any of the Non Government Organisations which are doing work in the
field were heard. In those circumstances, a writ petition was filed under Article
32 of the Constitution before this Court for setting aside the said judgment.
However, in the proceedings dated 7.2.2000 it was noted that prayer was
deleted and the other prayer which indirectly concerned the correctness of the
judgment already passed was also deleted. However, the petition was ordered
to be treated as an application for clarification or directions in the case already
decided by this Court. In the course of the order it was observed that :

"We direct the office shall not treat this as a writ petition filed under
Article 32, but shall register it separately as an IA for
clarification/directions in C.A. No. 4641/1998.

Notice of this IA returnable within two weeks shall be issued
to National Aids Control Organisation, Union of India and Indian
Medical Association which is already represented in IA Nos. 2-3.
Notice shall also go to Medical Council of India. Dasti service is
permitted in addition."


By an order dated 2.9.2001, it has been further directed that the I.As.
should be listed before a three Judge Bench.
In I.A. 2/1999 filed by the impleaded petitioner, the petitioner has raised
the question whether a person suffering from HIV (+) contracting marriage with a
willing partner after disclosing the factum of disease to that partner will be
committing an offence within the meaning of Section 269 and 270 IPC. In
substance, the petitioner wants the Court to clarify that there is no bar for the
marriage, if the healthy spouse consents to marry in spite of being made aware
of the fact that the other spouse is suffering from the said disease.
The various organisations to which the notice was issued have also
entered their appearance before this Court and filed plethora of material giving
their respective stands. The practical difficulties in ensuring disclosure to the
person proposed to be married or in monitoring such cases are pointed out. It is
unnecessary to examine these matters in any detail inasmuch as in our view this
Court had rested its decision on the facts of the case that it was open to the
hospital or the Doctor concerned to reveal such information to persons related to
the girl whom he intended to marry and she had a right to know about the HIV
positive status of the appellant. If that was so, there was no need for this Court
to go further and declare in general as to what rights and obligations arise in
such context as to right to privacy or confidentiality or whether such persons are
entitled to be married or not or in the event such persons marry they would
commit an offence under law or whether such right is suspended during the
period of illness. Therefore, all those observations made by this Court in the
aforesaid matter were unnecessary, particularly when there was no consideration
of the matter after notice to all the parties concerned.

In that view of the matter, we hold that the observations made by this
Court, except to the extent of holding as stated earlier that the appellant's right
was not affected in any manner in revealing his HIV positive status to the
relatives of his fiancee, are uncalled for. We dispose of these applications with
these observations.