15

3. Whether the establishment “Livo” is jointly liable with “Onelife” for emergency treatment
of Asta?

The Respondent humbly submits that the establishment “Livo” is not jointly liable with
“Onelife” for providing emergency treatment to Asta. For the concept of bringing joint liability
the establishment “Onelife” must be held liable. Only then, the concept of joint liability arises.
But “Onelife” cannot be made liable in any way. Even they have obtained consent from the
concerned parties for performing ECT in “Onelife”. When “Onelife” itself can’t be held liable,
the liability of Livo will not arise under the concept of joint liability.

To establish joint liability there must be an employer-employee relationship. But Dr Jamie is

not an employee of “Livo” healthcare centre. Dr Jamie has the relationship of only an
‘Independent Contractor’. An independent contractor is a person who contracts to do work for
another person according to his or her own processes and methods; the contractor is not subject
to another's control except for what is specified in a mutually binding agreement for a specific
job. So, Dr Jamie is considered as an independent contractor as his did his work according to
his own processes and methods and was not subject to any other’s control. The Dr performs his
treatment for the welfare of the patient and does this in the interest of patient. There is no
employer and employee relationship to establish joint liability.

The concept of joint liability is defined under s.34 of IPC. For establishing joint liability
criminal intention must be proved. Section 34 and of IPC deals with the concept of principle
of joint liability. Section 34 actually indicates that if two or more people intentionally do
anything together, it will be considered the same as if they had each done it separately. S. 34
of the IPC states about Acts done by several persons in furtherance of common intention. When
a criminal act is done by several persons in furtherance of the common intention of all, each
of such persons is liable for that act in the same manner as if it were done by him alone. To
attract the principle of joint liability there are certain necessary elements

1. there should be a criminal offense

2. involvement of two or more persons in the above-stated criminal act
3. presence of a common intention
4. Pre-arranged plan
5. Participation
6. Physical presence

MEMORIAL ON BEHALF OF RESPONDENT

 16

Pre-arranged plan: means prior concert or prior meeting of minds i.e. there should a common
intention should and the persons should have met independently and discussed the common
intention. But in Asta’s case there was no pre-arranged plan. The Dr has taken Asta to the
healthcare centre during emergency. Criminal offense has not been committed by anyone. So,
the institution cannot be made liable under the concept of joint liability.

Circumstances of joint liability can arise during agency, or vicarious liability or when
performing a joint or common action under Law of Torts. But here, there is no Principal-Agent
relationship. The health establishment “Livo” did not perform any joint or common action.
Vicarious liability is a concept in law, whereby, the liability is assigned on a person who did
not commit the wrong but has a superior legal relation with the person who actually committed
the wrong. The situations of vicarious liability mostly arise in case of employee and employer
relations. Here, the establishment Livo has no superior legal relation and there is no employer-
employee relationship.

The Supreme Court has repeatedly emphasised to the government and other authorities for
focusing and giving priority to the health of its citizens as it makes one's life meaningful,
improves one's efficiency, and also provides an optimum output. To secure protection of one's
life has been declared to be one of the foremost obligations of the State. It is not merely a
right enshrined under Article 21 but an obligation cast on the State to provide this, both under
Article 21 and under Article 47. Dr Jamie has acted to secure the life of the patient and he or
the institution which provided for treatment to save the life of patient cannot be made liable.

Emergency medical care and is often interpreted as a right guaranteed under Article 21 of
Constitution of India by Supreme Court of India and respective High Courts. A plethora of
medical literature on the subject affirms that the ‘GOLDEN HOUR' is the first hour in which
‘emergency medical care' is necessary and most victims die if no such care is made available
or is not provided soon. The purpose of emergency medical care is to stabilise the patient and
Dr and the hospital has considered this Golden hour and acted accordingly.

Duty to provide emergency medical care is also provided by the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations, 2002. As per the regulations, it is

MEMORIAL ON BEHALF OF RESPONDENT

 17

their duty11 to first render emergency medical care before receiving payment. Other duties of
doctors in case of emergency care are:

i) No physician can arbitrarily refuse treatment to a patient. It can only be done if the physician
is not qualified to treat the condition in which case the physician must refer the patient to
another competent physician.12

ii) While referral in the normal course is acceptable, in case of an emergency the physician
should treat the patient.

iii) A physician is free to choose when and who he treats. However, in case of an emergency,
he must respond when called upon.13

iv) Physicians should not neglect or withdraw from the case without giving prior and adequate
notice to the caregivers of the patient14

201st Law Commission Report on Emergency Medical Care in the year 2006 speaks about
providing emergency medical aid. The Law Commission has made the draft bill based on the
principles of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). This
report emphasised that the Emergency Medical Service (EMS) has to be legislated so that the
patients can enforce their rights. This report recommended that the Parliament should legislate
this issue and make it an absolute duty of the healthcare institution, whether it is Public or
Private to provide emergency medical care.

EMTALA STATUTE (42 USC 1395 DD) (Emergency Medical Treatment and Labour Act)
was enacted to provide emergency medical care in U.S. This Act made it a mandatory duty on
the part of hospitals to attend on such persons who are in need of emergency treatment. The
Act contains an entire scheme of screening, stabilizing and rendering emergency treatment.
Many safeguards are provided in EMTALA as to what should be done for transfer of a person
to another hospital. The EMTALA also creates offences against those who violate the duties
envisaged by it.

11
Sections 2.1.1 & 2.4, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002
12
Section 2.1.1, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002
13
Section 2.1.4, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002
14
Section 2.1.4, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002

MEMORIAL ON BEHALF OF RESPONDENT

 18

As per the U.S laws, In the cases Barfield v. South Highland Infirmary15; Teter v. Davis-Fischer
Sanitarium Co.16; Kuglich v. Fowle17, the Courts have found hospitals not liable for the acts of
physicians as independent contractor even though the physicians were shareholders or officers
of the hospital. So, even when they are officers of the hospital they cannot be held liable. Thus,
the establishment Livo is not liable.

Thus, the respondent humbly submits that the establishment “Livo” is not jointly liable with
“Onelife” for providing emergency treatment to Asta.

15
Barfield v. South Highland Infirmary, 191 Ala. 553, 68 So. 30 (1915);
16
Teter v. Davis-Fischer Sanitarium Co., 28 Ga. App. 708, 113 S.E. 29 (1922);
17
Kuglich v. Fowle, 185 Wis. 124, 200 N.W. 648 (1924).

MEMORIAL ON BEHALF OF RESPONDENT