DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE:

BANANAS
A TYRANT WITH HELM

SUBJECT:
LEGAL METHODS

NAME OF THE FACULTY

MS SOMA BHATTACHARJYA

NAME OF THE CANDIDATE – (1) SANCHIT SHRIVASTAVA

(2) SANSKAR JAIN
ROLL NUMBER – 2018079, 2018080

Semester – 1st Semester

 ACKNOWLEDGEMENT

We take this opportunity to express my profound gratitude and deep regards to my Professor
Soma Bhattacharjya for her exemplary guidance, monitoring and constant encouragement
throughout the course of this project. The blessing, help and guidance given by her time to
time shall carry me a long way in the journey of life on which I am about to embark.

I have taken efforts in this project. However, this would have not been possible without kind
support and help of my Professor.
 ABSTRACT

The researchers in this project has tried to analyze the movie ‘Bananas’ with a legal
overview. In this the concept of medical negligence, contempt of court and tort of deceit has
been explained. While explaining these concepts, it has ben tried to link them with the movie.
 CONTENTS

1. Objectives of the Study

2. Significance of the Study
3. Scope of the Study
4. Research Design
5. Introduction
6. What is Medical Negligence?
7. Contempt of Court
8. Conclusion
9. Bibliography
OBJECTIVE OF THE STUDY:

This study aims to:

1. analyze the following:

2. To study medical negligence in India.
3. To study contempt of court laws in Nicaragua and India

SIGNIFICANCE OF THE STUDY

The significance of this study are as follows:

1. One can know about the existing laws pertaining to a subject and have a better
understanding regarding it.
2. Intertwining entertainment and law.

SCOPE OF THE STUDY

Wide

REVIEW OF LITERATURE

Parts of the plot of the movie is based on the book ‘Don Quixote’, U.S.A’ by Richard P.
Powell. The main issue which has been discussed in this book was presented to us as a movie
and the same shall be elucidated in the subsequent lines.

The main issue in the U.S- sponsored Dictatorship in Latin America in the 70s, In the
Republic of San Marcos, in Latin America, the president is killed in a coup d’ Etat promoted
by General Emilio M. Vargas. The book is a pure comedy with some satirical and political
overtones. It touches on the activism culture of the time and the USA’s involvement in South
American politics. This political satire takes aim at the values many Vietnam War-era
Americans held dear, and continues to make the reader laugh and think about their political
system.

RESEARCH METHODOLOGY

Doctrinal.

NATURE OF THE STUDY:

a) Descriptive study.
b) Explanatory study.
c) Historical study.
d) Analytical study.
e) Comparative study.

SOURCES:

Don Quixote, U.S.A, by Richard P. Powell.

 INTRODUCTION

Bananas is a 1971 American comedy film directed by Woody Allen and starring
Allen, Louise Lasser, and Carlos Montalban. Written by Allen and Mickey Rose, the film is
about a bumbling New Yorker who, after being dumped by his activist girlfriend, travels to a
tiny Latin American nation and becomes involved in its latest rebellion. 1 Parts of the plot are
based on the book Don Quixote, U.S.A. by RICHARD H POWELL 2

The title is a pun, “bananas” being slang for crazy as well as being a reference to the phrase
“Banana Republic” describing the films setting. The protagonist was an agronomist
specializing in Bananas. The novel by Richard H Powell as mentioned earlier served as a
source of Bananas.

Comedy about an accident-probe misfit whose job is to test complicated mechanical aids to
luxurious living. After having been rejected by his student girlfriend he find his way to South
America where he tries his hand at being a revolutionary. Finally ousted from the country he
returns to his girlfriend.

In this Glimpse of concepts of law such as Medical Negligence, tort of deceit, contempt of
court etc. can be seen. It is rather a satirical movie which has taken the help of humour and
law.

1
"Bananas". Internet Movie Database. Retrieved May 11, 2012.
2
Lax, Eric (1991). Woody Allen: A Biography. New York: Knopf. p. 220
 WHAT IS MEDICAL NEGLIGENCE?

Medical Negligence is the failure of a medical practitioner to provide proper care and
attention and exercise those skills which a prudent, qualified reasonable person would do
under similar circumstances. It is a commission or omission of an act by a medical
professional which deviates from the accepted standards of practice of medical community,
leading to an injury to the patient. It may be defined as a lack of reasonable care and skill on
a part of the medical professional with respect to the patient, be it history taking, clinical
examination, investigation, diagnosis, and treatment, that has resulted in injury, death or
unfavorable outcome. Failure to act in accordance with medical standards in vogue and
failure to exercise due care and diligence are generally deemed to constitute medical
negligence.3

In legal sense medical negligence is a subset of professional negligence which is a branch of

the general concept of negligence that applies to the situation in which physician who
represented himself or herself having special knowledge and art, breaches his or her duty to
take care about his or her patient. The general rules apply in establishing that the physician
who owed the duty of care is in breach of that duty. Once the physician has accepted to treat
the patient, the legal relationship between physician and patient is created, this means a
medical relationship is established and this relationship resulted in duty to take care. The base
of this legal relationship is the rule of “reasonable reliance” by the claimant on the skills of
the defendant. Dealing with the question of duty to take care, the court observed:
Where a person is so placed that others could reasonably rely upon his judgment or his skill
or upon his ability to make careful inquiry, and a person takes it upon himself to give
information or advice to, or allows his information or advice to be passed on to, another
person who, as he knows or should know, will place reliance upon it, then a duty of care will
arise4

3
Gupta, Kiran, “The standard of care and proof in Medical Profession, A shift from Bolam to Bolitho” XIV-XV
National Capital Law Journal 1(2011-2012).
4
Hedley Byrne v. Heller, (1964) AC 465.
Duties of a Professional Medical Practitioner
The duties of a medical professional are generally understood to cover:
1. Duty of care in deciding what treatment is to be given
2. Duty to take care in administering of the treatment identified.

When does a duty arise?

It is well known that a doctor owes a duty of care to his patient. This duty can either be a
contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-
patient relationship is not established, the courts have imposed a duty upon the doctor. In the
words of the Supreme Court “every doctor, at the governmental hospital or elsewhere,
has a professional obligation to extend his services with due expertise for protecting
life” (Parmanand Kataria vs. Union of India5). These cases are however, clearly restricted
to situations where there is danger to the life of the person. Impliedly, therefore, in other
circumstances the doctor does not owe a duty.

What is the duty owed?

The duty owed by a doctor towards his patient, in the words of the Supreme Court is to
“bring to his task a reasonable degree of skill and knowledge” and to exercise “a
reasonable degree of care” (Laxman vs. Trimback6). The doctor, in other words, does not
have to adhere to the highest or sink to the lowest degree of care and competence in the light
of the circumstance. A doctor, therefore, does not have to ensure that every patient who
comes to him is cured. He has to only ensure that he confers a reasonable degree of care and
competence.

Reasonable degree of care

Reasonable degree of care and skill means that the degree of care and competence that an
“ordinary competent member of the profession who professes to have those skills would
exercise in the circumstance in question.” At this stage, it may be necessary to note the
distinction between the standard of care and the degree of care. The standard of care is a
constant and remains the same in all cases. It is the requirement that the conduct of the doctor

5
1989 AIR 2039, 1989 SCR (3) 997
6
1969 AIR 128, 1969 SCR (1) 206
be reasonable and need not necessarily conform to the highest degree of care or the lowest
degree of care possible. The degree of care is a variable and depends on the circumstance. It
is used to refer to what actually amounts to reasonableness in a given situation.

Thus, though the same standard of care is expected from a generalist and a specialist, the
degree of care would be different. In other words, both are expected to take reasonable care
but what amounts to reasonable care with regard to the specialist differs from what amount of
reasonable care is standard for the generalist. In fact, the law expects the specialist to exercise
the ordinary skill of this specialty and not of any ordinary doctor. Though the courts have
accepted the need to impose a higher degree of duty on a specialist, they have refused to
lower it in the case of a novice.

Another question that arises is with regard to the knowledge that is expected from a doctor.
Should it include the latest developments in the field, hence require constant updating or is it
enough to follow what has been traditionally followed? It has been recognized by the courts
that what amounts to reasonableness changes with time. The standard, as stated clearly herein
before requires that the doctor possess reasonable knowledge. Hence, we can conclude that a
doctor has to constantly update his knowledge to meet the standard expected of him.
Furthermore, since only reasonable knowledge is required, it may not be necessary for him to
be aware of all the developments that have taken place.

We have, until now, examined the duty of a doctor in so far as treating a patient is concerned
or in diagnosing the ailment. Doctors are, however, imposed with a duty to take the consent
of a person/patient before performing acts like surgical operations and in some cases
treatment as well. To summarize, any act that requires contact with the patient has to be
consented by the patient. A duty of care is imposed on the doctors in taking the patient's
consent. Naturally, a question arises as to what is this duty of care. As per the judicial
pronouncements, this duty is to disclose all such information as would be relevant or
necessary for the patient to make a decision. Therefore, the duty does not extend to disclosing
all possible information in this regard. Furthermore, this duty does not extend to warning a
patient of all the normal attendant risks of an operation. The standard of care required of a
doctor while obtaining consent is again that of a reasonable doctor, as in other cases.
In Jacob Mathew v State of Punjab7the standard of care, when assessing the practise as
adopted is judged in the light of knowledge available at the time of (of the incident), and not
the date of trial.

When does the liability arise?

The liability of a doctor arises not when the patient has suffered any injury, but when the
injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable
care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable
for only those that are a consequence of a breach of his duty. Hence, once the existence of a
duty has been established, the plaintiff must still prove the breach of duty and the causation.
In case there is no breach or the breach did not cause the damage, the doctor will not be
liable. In order to show the breach of duty, the burden on the plaintiff would be to first show
what is considered as reasonable under those circumstances and then that the conduct of the
doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to
merely show that there exists a body of opinion which goes against the practice/conduct of
the doctor.

With regard to causation, the court has held that it must be shown that of all the possible
reasons for the injury, the breach of duty of the doctor was the most probable cause. It is not
sufficient to show that the breach of duty is merely one of the probable causes. Hence, if the
possible causes of an injury are the negligence of a third party, an accident, or a breach of
duty care of the doctor, then it must be established that the breach of duty of care of the
doctor was the most probable cause of the injury to discharge the burden of proof on the
plaintiff.

Normally, the liability arises only when the plaintiff is able to discharge the burden on him of
proving negligence. However, in some cases like a swab left over the abdomen of a patient or
the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘res ipsa
loquitur’ (meaning thereby ‘the thing speaks for itself’) might come into play. The following
are the necessary conditions of this principle.

In the case of V.Krishan Rao Vs Nikhil Super Speciality Hospital Krishna Rao, an officer
in malaria department filed a complaint against the hospital for negligent conduct in treating
his wife. His wife was wrongly treated for typhoid fever instead of malaria fever, due to the

7
(2005) 6 SCC 1
wrong medication provided by the hospital. Finally, the verdict was given and Rao was
awarded a compensation of Rs 2 lakhs. In this case, the principle of res ipsa loquitor (thing
speak for itself) was applied and the compensation was given to the plaintiff.

1. Complete control rests with the doctor.

2. It is the general experience of mankind that the accident in question does not happen
without negligence. This principle is often misunderstood as a rule of evidence, which
it is not. It is a principle in the law of torts. When this principle is applied, the burden
is on the doctor/defendant to explain how the incident could have occurred without
negligence. In the absence of any such explanation, liability of the doctor arises.

Normally, a doctor is held liable for only his acts (other than cases of vicarious liability).
However, in some cases, a doctor can be held liable for the acts of another person which
injures the patient. The need for such a liability may arise when the person committing the act
may not owe a duty of care at all to the patient or that in committing the act he has not
breached any duty. A typical example of a case where such a situation may arise is in the case
of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as the
exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He
will have discharged his duty once he does this and will not be liable even if he actually
commits the act which causes the injury. In such a case, it is the duty of the senior doctor to
have advised him properly. If he did not do so, then he would be the one responsible for the
injury caused to the patient, though he did not commit the act.

When there is no liability

A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may
either be due to the fact that he has a valid defense or that he has not breached the duty of
care. Error of judgment can either be a mere error of judgment or error of judgment due to
negligence. Only in the case of the former, it has been recognized by the courts as not being a
breach of the duty of care. It can be described as the recognition in law of the human
fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a
decision that turns out to be wrong. It is situation in which only in retrospect can we say there
was an error. At the time when the decision was made, it did not seem wrong. If, however,
due consideration of all the factors was not taken, then it would amount to an error of
judgment due to negligence.

Breach of any of these duties may lead to an action for negligence by the patient

ESSENTIALS

 Doctor’s duty to attend the patient with care

Medicine is such a profession where a practitioner is supposed to have requisite knowledge

and skill needed for the purpose and has a duty to exercise reasonable duty of care while
dealing with the patient. The standard of the care depends upon the nature of the profession.
A surgeon or anesthetist will be determined by the standard of average practitioner in that
field while in case of specialists, a higher skill is needed.

If the doctor or a specialist doesn’t attend a patient admitted in emergency or under his
surveillance and the patient dies or becomes victim of consequences which could have been
avoided with due care from the doctor, the doctor can be held liable under medical
negligence. This was held in Sishir Rajan Saha v. The state of Tripura 8 that if a doctor did
not pay enough attention to the patients in government hospitals as a result of which the
patient suffers, the doctor can be held liable to pay compensation to the patient. Moreover the
liability of the doctor cannot be invoked now and then and he can’t be held liable just because
something has gone wrong. For fastening the liability, very high degree of such negligence
was required to be proved. A doctor or a medical practitioner when attends to his patients,
owes him the following duties of care:

 A duty of care in deciding whether to undertake the case

 A duty of care in deciding what treatment to give
 A duty of care in the administration of the treatment

When you go to a doctor, you expect to be seen promptly and attentively, and at a reasonable
cost. You expect the doctor to be knowledgeable about the latest advances in his field of
specialty, and educate you about your diagnosis and prognosis, and explore the best possible

8
AIR 2002 Gau 102
solution to your health issue. In short, you expect to be healed. But for millions of people,
what they expect is far from what they receive.

Doctor acting in a negligent manner

It is well accepted that in the cases of gross medical negligence the principle of res ipso
loquitur is to be applied. The principle of res ipso loquitur is said to be essentially an
evidential principle and the said principle is intended to assist the claimant. Res Ipso
loquitur means things speaks for itself; while deciding the liability of the doctor it has to be
well established that the negligence pointed out should be a breach in due care which an
ordinary practitioner would have been able to keep. Latin for “the thing speaks for itself,” a
doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of
whatever caused the injury even though there is no specific evidence of an act of negligence,
and without negligence the accident would not have happened. A doctor is not an insurer for
the patient, inability to cure the patient would not amount to negligence but carelessness
resulting in adverse condition of the patient would.

In Gian chand v. Vinod kumar Sharma 9 it was held that shifting of the patient from one
ward to another in spite of requirement of instant treatment to be given to the patient resulting
in damage to the patient’s heath then the doctor or administrator of the hospital shall be held
liable under negligence. Also in Jagdish Ram v. State of H.P10. It was held that before
performing any surgery the chart revealing information about the amount of anaesthesia ad
allergies of the patient should be mentioned so that an anesthetist can provide ample amount
of medicines to the patient. The doctor in above case failed to do so as a result of the
overdose of anesthesia the patient died and the doctor was held liable for the same.

9
(2012) 13 SCC 505
10
2008 ACJ 433
 Contempt of Court

Contempt of court is any conduct that tends to bring the authority and administration of Law
into disrespect or disregard or to interfere with or prejudice parties or their witnesses during
litigation.

Categories of contempt of court

Contempt of court can be of two types, civil or criminal depending on the nature of the case.

1. Civil Contempt
Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined
as wilful disobedience to any judgment, decree, direction, order, writ or other process of a
court or wilful breach of an undertaking given to a court.

2. Criminal Contempt
Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been
defined as the publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act whatsoever which:

(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court,
or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial
proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration
of justice in any other manner.

Punishment for the contempt of court

High Court and Supreme Court are bestowed with the power to punish for the contempt of
the court.
Under Section 12 of Contempt of Court Act, 1971, a contempt of court can be punished with
simple imprisonment for a term which may extend to six months, or with fine which may
extend to two thousand rupees, or with both.

However, in civil cases if the court considers that a fine will not meet the ends of justice and
that a sentence of imprisonment is necessary shall, instead of sentencing him to simple
imprisonment, direct that the he be detained in a civil prison for such period not exceeding
six months as it may think fit.
The court is not supposed to impose a sentence for contempt of court in excess of what is
prescribed under this section either in respect of itself or of a court subordinate to it.
An accused may be discharged or the punishment awarded may be remitted on apology being
made by the accused to the satisfaction of the court. An apology is not supposed to be
rejected merely on the ground that it is qualified or conditional if the accused makes it bona
fide.

Contempt of court by a company

In case the person found guilty of contempt of court in respect of any undertaking given to a
court is a company, the person who at that time, was in charge of, and was responsible to, the
company for the conduct of business of the company shall be deemed to be guilty of the
contempt and the punishment may be enforced, with the leave of the court, by the detention
in civil prison of such person.
However, that person can be exempted from liability if such person proves that the contempt
was committed without his knowledge or that he exercised all due diligence to prevent its
commission.

Liability of Director, Manager, Secretary or other officer of the company

If the contempt of court referred to therein has been committed by a company and it is
provided that the contempt has been committed with the consent or connivance of, or is
attributable to any neglect on the part of, any director, manger, secretary or other officer of
the company, such director, manager , secretary or other officer shall also be deemed to be
guilty of the be contempt and the punishment will be enforced against them as well, with the
leave of the court, by the detention in civil prison of such director, manager, secretary or
other officer.
Contempt under Indian Constitution

Article 129 and 215 of the Constitution of India is in the nature of empowering courts for the
contempt. While Article 129 empowers the Supreme Court, Article 215, on the other hand,
empowers High Courts to punish people for their respective contempt. High Courts have
been given special powers to punish contempt of subordinate courts, as per Section 10 of The
Contempt of Courts Act of 1971.

Article 129

Article 129, of the Constitution of India, states that “The Supreme Court shall be a court or
record and shall have all the powers of such a court including the power to punish for
contempt of itself”.

Art.215: High Courts to be courts of record.—Every High Court shall be a court of record
and shall have all the powers of such a court including the power to punish for contempt of
itself.

Object

 The jurisdiction regarding contempt is a special jurisdiction. It must be used to

uphold the dignity of the courts and the majesty of law and to keep the
administration of justice unpolluted.
 Contempt jurisdiction must be exercised to uphold the dignity of the judicial
system which includes within itself the dignity of courts and tribunals as well,
which are entrusted with the noble task of ensuring delivery of justice.
 The power of contempt is often invoked to ensure compliance with the orders
given by the courts and in their execution, and for punishing those who are
responsible for the lapses in the manner of compliance.
 Another importance of this contempt power is to ensure the majesty of judicial
institutions so that it may not be lowered, and also to preserve the functional utility
of the constitutional edifice from being rendered ineffective.
 Further, the availability of contempt jurisdiction provides efficacy to the
functioning of the judicial forum and enables the enforcement of the orders on
account of its deterrence effect on avoidance.[1]
Purpose of the Law of Contempt

Civil society is founded in the respect for the law. If everyone chooses to break the law, no
civil society can exist at all. It is this respect for the law and the law-enforcing agencies that
somewhat paradoxically ensures that freedoms recognized in the constitution.[2]

Nature of the law of Contempt of court

Contempt proceedings are not like proceedings for the prosecution of criminals. It is a matter
between the court and the contemnor and is a quasi-judicial proceeding.[3] The proceedings
initiated therein are not tried as an adversarial litigation. Any person or any subordinate court,
for that matter, which brings the matter of contempt into consideration, before the higher
court, is only an informant and is not given the status of a litigant.[4]

Article 129 and 215 of the Constitution of India, do not confer any new jurisdiction or
doesn’t vest any new powers on the Supreme Court or the High Courts. They merely
recognize a pre-existing situation that the Supreme Court and the High Courts are the ‘courts
of record’ by virtue of which they have inherent jurisdiction to punish for their contempt. It is
not governed by any special or specific rules, and such is to be governed by the principle of
natural justice.
The jurisdiction which is vested by these the two articles (Article 129 and Article 215) is
inalienable, and thus cannot be taken away from the courts. However, this is not an absolute
ban, and such powers can be taken away only by a legislative enactment in Constitution.

The provisions of the Contempt of Courts Act, 1971, are not in derogation but in addition to
these two articles, and thus the Provisions of the Act cannot be used for limiting or regulating
the exercise of jurisdiction contemplated under the said two articles.[5]

SCOPE

Where the order of the High Court had become final after being upheld by the Supreme
Court, the Supreme Court, could not modify the said order in its contempt jurisdiction in spite
of there being certain difficulties in the implementation of the said order.[6]
While dealing with an application for contempt, the court is really concerned with the
question that, whether the earlier decision which has received its finality has been complied
with or not. It would not be permissible for a court to examine the correctness of the earlier
decision while exercising contempt jurisdiction. While dealing with the application of
contempt, the court cannot traverse beyond the order, non-compliance of which is alleged. It
cannot test correctness or otherwise of the order or give additional directions or modify or
remove any direction.[7]

Initiation of Contempt Proceedings

Action for contempt is divisible into two categories, namely, that initiated suo motu by the
court and that instituted otherwise than on the court’s own motion. The mode of initiation in
each case would necessarily be different. While in the case of former, it is the court itself
which must initiate by issuing a notice and in that of latter initiation can only be by a party
filing an application. Proceedings have been initiated suo motu in many cases.[8]

Procedure to be followed

The procedure provided by the Contempt of Court Act, 1971 has to be followed in the
exercise of the jurisdiction under article 129 and 215 of the Indian Constitution.[9]

Any individual can recourse to any of the following three options:

1. He may place the information in his possession before the court and request the
court to take action.
2. He may place the information before the Attorney General and request him to take
action.
3. He may place the information before the Attorney General and request him to
move the court.[10]

The direction to place the petition before the Chief Justice and not on the judicial side is
applicable only to contempt actions intended to be taken by the court sou motu.[11]

The alleged contemnor is entitled to notice and opportunity of being heard before holding
him guilty of contempt and passing an order of the sentence.[12]
Maintainability of Contempt Proceedings

For a contempt petition to be maintainable, the only condition that needs to be followed is
that it must comply with the mandatory requirements of Section 15 of the Contempt of Courts
Act, 1971.
 CONCLUSION

Bananas is a 1971 American comedy film directed by Woody Allen and starring Allen,
Louise Lasser, and Carlos Montalban. Written by Allen and Mickey Rose, the film is about a
bumbling New Yorker who, after being dumped by his activist girlfriend, travels to a tiny
Latin American nation and becomes involved in its latest rebellion. Parts of the plot are
based on the book Don Quixote, U.S.A. by Richard P. Powell.

In the movie there are instance where the mentioned concepts of laws are applied. When the
protagonist’s father was doing the surgery of a patient, he leaves a medical tool inside the
abdomen of the patient and instead of taking care about it he starts giving life lesson to him.

Also in the end of the movie there are instances of contempt of court. The protagonist doesn’t
comply to the directions of the judge and also mocks him during the trial.
 BIBLIOGRAPHY

BOOKS:

Don Quixote, U.S.A. by Richard P. Powell

ONLINE SOURCES:

 Jstor.org
 Manupatra
 SCC Onlines