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AI, health care and law – part 3

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LIABILITIES

It is interesting to determine the Legal Liabilities in the context of AI in health care. Medical Malpractice forms part of general negligence under Law. Given the fact that, negligence is attributable to breach of duty caused by the omission to do something which a reasonable man guided by those considerations, which ordinarily regulate human affairs would do, that which a prudent, rational/ reasonable man would not do. Usually, elements of negligence include duty to care, violation of duty, resultant injury, injury should be linked to violation of duty. Usually, negligence in context of health care can occur in advice/ counselling, diagnosis, treatment. However, in case of AI system used in the context of health care matters become very complex.

An interesting question in this context is can an AI Algorithm be sued for malpractice? However, the capacity to sue and to be sued can be determined only in case some legal recognition at least limited recognition is accorded to AI. Can AI Algorithm be subject to duty and care? Can AI used in Robotics Surgeries be subject to wrongful or incorrect conduct of operation?

In case an AI Algorithm is engaged for counselling and therapeutic sessions and does not sufficiently advice or counsel the patient regarding their medical conditions to prevent harm from occurring then it may amount to negligence. Can the AI Algorithm be subject to such negligence?

In case a patient is wrongly diagnosed or misdiagnosed by an AI Algorithm, then it amounts to a tort of negligence. However, in this scenario can a doctor using the AI technology also be liable for such misdiagnosis. However, if the AI Algorithm gets more and more accurate using machine learning techniques than a Doctor, then it may be difficult to attribute negligence to the doctor, since the Doctor is not the coder of such Algorithms. Can AI Algorithm be considered as a product within the ambit of Product Liability in the context of health care?

The net effect of which means that it is a form of Strict Liability where in the burden of proof will lie on the defendant, in which case the manufacture of the AI based software/ product and not the patient. However, the issue of strict liability brings in a new twisted option since human beings and AI are working together in the decision-making process and casting liability on the human being alone may be a challenge.

Can AI be brought under the private law regimes for compensating patients suffering from harm due to the errors or issues of the AI Algorithm.

However, in case it is found that there is a defect in the AI system in the context of Health Care that has resulted in the cause of patient’s injury, then the manufacturer shall hold liability of the same. further, in case the patient’s injury is a resultant of failure to properly handle and maintain the AI system, then the Doctor shall also be cast with contributory negligence. Vicarious Liability is usually applied in situations where one can be held responsible for the acts of the other, usually in case of employee employer relationships. In the context of AI, in health care can the Doctors /hospitals be liable for the negligence of the AI Algorithm. However, in order to attribute liability to the Doctors/ hospitals in this scenario a legal relationship should be established between the Doctors/hospitals and the AI Algorithms. In this kind of scenario some kind of legal recognition should be provided to the AI.

Can AI Algorithms qualify to be rendering professional advice like Doctors? Do they require any specific medical licenses or specifications in this regard? In case of any issue arising thereof, what is the landscape of legal liability will be interesting questions in the context of AI in health care.

CASE STUDIES

AI CHATBOTS-HEALTH CARE

The AI based Chatbots are developed with Machine Learning Algorithms including natural language processing in order to provide real time assistance to Health Care Providers, Professionals, Patients, thereby transforming Health Care, Patient Care, and Medical Care.

AI based Chatbots are being used to provide assistance to patients with regard to booking of medical appointments, knowing the status of their appointments, medical reports status and are used to sort out any grievances thereof.

Chatbots are primarily used in Health Care Industry for providing Information, by the way of pop-up Notifications. However, most of these Chatbots are used as tools or bots for providing enhanced customer support, by providing automated information. Further, Medical Chatbots are used by medical professionals for the purpose of getting assistance with regard to the Patient’s Medical Conditions and to offer different Medical Solutions to the Patient’s Health Conditions. Further, these Chatbots also provide Information relating to Medicines, their Dosage, Adverse Effects, and have the potential to improve the Health Care Industry.

These AI based Chatbots also raise some Medico Legal as also Legal Regulatory Aspects.

AI-TELEMEDICINE

AI and Health Care has also revolutionised Telemedicine and Telehealth Applications. AI, Telemedicine and Telehealth are empowering remote patient monitoring offering better diagnosis addressing Hospital Work Force issues supporting Health related Education. AI and Health Care has also taken over automation of manual and repetitive tasks of collecting, analysing data including medical records and history. AI in Telemedicine is assisting the Doctors and Medical Professionals to diagnose, monitor the Patients Health Conditions and progress and is also providing assistance in health-related counselling. It is very interesting to note the kind of Doctor-Patient relationship with the application of AI in Telemedicine. AI Algorithms are also helping in detecting the occurrence of certain rare genetic diseases and disorders by analysing the photographs of the Patients during the Telemedicine Consultations. Further, the AI Algorithms in Telemedicine can be used for comparison of the old photographs with the new photographs of the Patient in order to identify the intensity of the disease or medical issue.

The AI Algorithms are also analysing the medical history of the Patients and are suggesting the best possible medical treatments to the Patients and helping the Doctors and Medical Professionals during the Telemedicine Consultations reducing the time and costs. AI by way of facial recognition can help in identifying the Patients and the Doctors during the Telemedicine Consultations. The application of AI in Telemedicine can also alert the Doctor in regard to the seriousness and the medical condition of the Patient thereby identifying the Emergency Cases. AI in combination with Cloud Computing can augment the Health Care Services to a next level. AI by way of facial recognition can also detect the Doctors fatigue and can also predict the screen time of the Doctors during the Telemedicine Consultation as also how many Patients the Doctor will be able to see before burning out. AI in Telemedicine can also help in better creation and management of medical records.

AI-ROBOTIC SURGERIES

Surgical Robots are being developed with the application of AI and Robotics. These Surgical Robots are used for Procedures that require repetitive movements. AI in combination with deep Machine Learning is used for automating processes which is collected by observing the Medical Surgeons while performing surgeries. These AI based Robots can avoid unintentional and accidental movements. Given the Data and Algorithms, AI shall be able to determine the patterns with surgical procedures for coming up with best practices and improving their accuracy and precision. AI can also be used for identifying the procedures and steps in real time by analysing the videos of surgeries. They can also improve the outcomes of Patients, by accessing and treating diseases while integrated with medical procedures, instrumentation, and other technologies.

AI-NURSING

AI in Nursing has potentially helped nurses to improve the quality and efficiency of Nursing Care. AI applications including Machine Learning, Deep Learning, Natural Language Processing can aid in Nursing Research and Practice and can play an effective role in patient caring and outcomes. AI Algorithms shall be relevant in Nursing since these Algorithms can create Electronic Health Records in Patients and can analyse and help in Patient Monitoring. Integrating Data from Electronic Health Record AI can be used for providing Information regarding Patient’s specific preferences and can identify potential risk and help the nurse with nursing notes by providing analysis of the same. However, the AI Systems through Machine Learning can aid in sending Warnings or Notifications to the nurses in case of any immediate interventions. AI in Nursing Care can transform Nursing Care from reactive to predictive and enable more intelligent and smart Nursing Aids. The recent developments of AI in Nursing include Automating Nursing Documentation, Alerting and Notifying Nurses in cases of any Patients Movements, Breathing, Postures and Positions, Automatic Intimation of Completion of Saline Bottles, Remainders for giving Medications.

AI-MENTAL HEALTH

The use of AI in Mental Health Care is already being explored where in AI Algorithms are used for early detection and diagnostics of Mental Health Issues including Bipolar Disorders, Depression, Schizophrenia. The Mental Health issues are treated based on the Language Interaction, Speech, and other gestures during the Counselling and Therapy Sessions. AI by way of Machine Learning and Deep Learning based on Algorithms is capable of analysing the Speech Data and other interactions and can aid Psychologists and Psychiatrists. These Machine Learning Algorithms shall be able to analyse the Data and diagnose the Mental Illness. AI as a technology can dramatically improve research and treatment using its smart Algorithms for analysing the pattern and behaviour of Human Beings. AI shall act as a Virtual Mental Health Agent suggesting and predicting steps and strategies to be followed during the treatments. Further, AI by way of facial recognition can analyse and perform Health Assessments and can improve the user’s wellbeing. Needless to say, AI could also help in management of Mental Disorders given the anonymity and accessibility of the AI Algorithms.

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Legally Speaking

Verbal cruelty in marriage

Pinky Anand

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Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.

WHAT IS MATRIMONIAL CRUELTY?

Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

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‘FAILURE TO PROVIDE EVIDENCE OF DECEASED’S INCOME DOES NOT JUSTIFY ADOPTION OF LOWEST TIER OF MINIMUM WAGE IN MOTOR ACCIDENT’

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.

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The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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VIOLATION OF RETRENCHMENT PROCEDURE U/S 25F & 25G OF INDUSTRIAL DISPUTES ACT WARRANTS REINSTATEMENT, NOT MERE COMPENSATION: GUJARAT HIGH COURT

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The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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CENTRE NOTIFIES APPOINTMENT OF ELEVEN ADDITIONAL JUDGES IN PUNJAB & HARYANA HC

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On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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Legally Speaking

KERALA HC: BAIL GRANTED TO A DOCTOR ACCUSED OF POSTING DEFAMATORY ARTICLES AGAINST LAKSHADWEEP ADMINISTRATIVE OFFICERS

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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GUJARAT HC GRANTS RELIEF TO DIPLOMA HOLDERS: STUDENTS CAN’T BE FAULTED FOR PHARMACY COUNCIL’S FAILURE TO APPROVE MEDICAL STORES FOR IMPARTING TRAINING.

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The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations:

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

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