TEAM CODE – J223

5TH INTRA MOOT COURT COMPETITION, 2017

BEFORE THE HON’BLE SUPREME COURT OF INDIA

MR. SANDEEP PATIL …….………………………………… APPELLANT

Vs.

DR. PRADIP KUMAR

AND BREACH CANDY HOSPITAL………………………. RESPONDENT

CASE CONCERNING: MEDICAL NEGLIGENCE

MEMORIAL ON BEHALF OF APPELLANT

1
 TABLE OF CONTENTS

Serial Particulars Page No.

No.
1. LIST OF ABRREVATIONS 3

2. THE INDEX OF AUTHORITIES 4-5

3. THE STATEMENT OF JURISDICTION 6

4. THE STATEMENT OF FACTS 7-8

5. THE STATEMENT OF ISSUES 9

1. ISSUE 1: WHETHER THE DR. PRADIP SHOULD

BE HELD LIABLE FOR MEDICAL NEGLIGENCE?

2. ISSUE 2: WHETHER THE APPELLANT (MR.

SANDEEP) IS ENTITLED TO ANY

COMPENSATION FROM RESPONDENT?

6. THE SUMMARY OF ARGUMENTS 10

7. THE ARGUMENTS ADVANCED 11- 17

8. THE PRAYER 18

2
 LIST OF ABRREVATIONS

1. & And

2. A.I.R All India Reporter

3. Bom Bombay

4. Cal Calcutta

5. C.P Common Pleas

6. Co Company

7. H.C High Court

8. i.e. that is

9. K.B King’s Bench

10. L.R Law Reports

11. Lah Lahore

12. Ltd. Limited

13. M.L.J Madras Law Journal

14. Nag Nagpur

15. P Page

16. Q.B Queen Bench

17. S.C Supreme Court

18. V. Versus

19. W.L.R Weekly Law Reports

20. I.L.R Indian Law Reports

3
 THE INDEX OF AUTHORITIES

A. TABLE OF CASES
Serial Cases Cited Pg.
No. No.
1. A. Srimannarayana Vs. Dasari Santakumari and Anr. (2014)1SCC(LS)729 16
2. A.R. Antulay vs. R.S. Nayak and another reported in (1988) 2 SCC 602 16
3. A.S.Mittal v. State of U.P AIR 1989 SC 1570 12
4. Balram Prasad vs. Kunal Saha, (2014) 1 SCC 384 ; 14,17
5. Bhalchandra Waman Pathe v. State of Maharashtra MANU/SC/0410/1967 12
6. Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582 13
7. Cavan v. Wilfox (1973) 44 DLR 3d 42 13
8. Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. 12
MANU/SC/0362/1968 : [1969]1SCR206
9. Dr. Ravinder Gupta v. Ganga Devi 1993 (3)CPR 259 11
10. Eady v.. Tenderenda (1975) 2 S.C.R 599 10
11. Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and 16
Others (2000) 4 SCC 262
12. Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 16
193.)
13. Indian Medical Association v. V.P. Shantha AIR1996SC550 11
14. Indian Medical Association v. VP Shanta and Others AIR1996SC550 16
15. Jacob Mathew Vs. State of Punjab and Anr. AIR 2005 SC 3180 12,16
16. Krishna v. State of Tamil nadu and Others 17
17. Livingstone v. Rawyards Coal Co. HL 1880 14
18. Malay Kumar Ganguly vs. Sukumar Mukherjee, (2009) 9 SCC 221 14
19. Nizam’s Institute of Medical Sciences vs. Prashant S. Dhananka and Others, 14
(2009) 6 SCC 1.
20. Rietz v..Brusel (1979) 1 WWR 31 13
21. Savita Garg vs. National Heart Institute, (2004) 8 SCC 56 17

4
22. Union of India v. Raghubir Singh (1989) 2 SCC 754, 16
23. V. Kishan Rao v. Nikhil Super Speciality Hospital and Anr. 12
MANU/SC/0332/2010 : (2010) 5 SCC 513
24. V. Kishan Rao v. Nikhil Super Specialty Hospital (2010) 5 S.C.C 513 16
25. Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 ; 1944 2 All ER 16
293 at 300.

B. BOOKS, STATUTE, AND REPORTS

Sr.
No Name of the Book, the Author or Publisher

1. Law of Torts, Dr. NV Paranjape, 2nd Edition ,Central Law Agency

2. Law of Torts, R.K Bangia,23rd Edition, Allahabad Law Agency

3. Law of Torts, Ratan Lal & Dhirajlal, 26th Edition, Lexis Nexis

4. Consumer Protection Act,1986

C.WEBSITES

1. www.manupatrafast.in
2. http://www.worldlifeexpectancy.com/india-life-expectancy
3. http://www.inflation.eu/inflation-rates/india/historic-inflation/cpi-inflation-india.aspx

4. http://www.aiims.edu/en/news/awards-honours/79-about-aiims/301-click-here.html

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 THE STATEMENT OF JURISDICTION

IT IS HUMBLY SUBMITTED THAT THE APPELLANT HAS APPROACHED THE

HON’BLE SUPREME COURT INVOKING ITS JURISDICTION UNDER SECTION 23 OF
THE CONSUMER PROTECTION ACT, 19861 .

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS.

1
Appeal. — Any person, aggrieved by an order made by the National Commission in exercise of
its powers conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal
against such order of the Supreme Court within a period of thirty days from the date of
the order:

Provided that the Supreme Court may entertain an appeal after the expiry of the said
period of thirty days if it is satisfied that there was sufficient cause for not filing it within
that period.

Provided further that no appeal by a person who is required to pay any amount in terms
of an order of the National Commission shall be entertained by the Supreme Court unless
that person has deposited in the prescribed manner fifty per cent. of that amount or
rupees fifty thousand, whichever is less.

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 THE STATEMENT OF FACTS

Date Series of Events

March 2014 Mr. Sandeep Patil who was suffering from chronic renal failure
was referred by the Director of Health Services to Breach Candy
Hospital in Mumbai for the purpose of a kidney transplant
May 20, 2014 Mr. Patil approached to Dr. Pradip Kumar Chakraborty, with
high fever, however he refused to hospitalization despite the
advice of Dr. Pradip.
May 29, 2014 Mr.Patil who still had a high fever finally agreed to get admitted
into the hospital due to his serious condition.
May 30, 2014 Mr.Patil further was investigated for typhoid fever, which was
negative. He was also investigated for ESR , which was
expectedly high in view of renal failure with anaemia infection.
Urine analysis was also carried out which showed the presence of
bacteria.

June 3, 2014 The reports of the urine culture and sensitivity showed a severe
urinary tract infection due to Klebsiella species (1 lac/ml)
sensitive only to Amikacin and Methenamine Mandelate
June 5, 2014 to June 7, Injection of Amikacin was administered to Mr.Patil for 3 days
2014
June 11, 2014 Mr. Patil who was presented to the haemodialysis unit complained
to Dr. Pradip that he had slight tinnitus (ringing in the ear).
June 17, 2014. Mr. Patil continued taking Amikacin until June 17, 2014.
June 14, June 18, and Mr. Patil received haemodialysis at Breach Candy Hospital and
June 20, 2014 allegedly did not complain of his deafness during those periods.
June 25, 2014 Mr. Patil, on his own accord, got admitted to Kothari Hospital
discharging himself from Breach Candy. However, Mr. Patil
allegedly did not complain of deafness during this period and
conversed with doctors.

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July 30, 2014 Mr.Patil was operated upon for a transplant
August 13, 2014 Mr.Patil was discharged from Kothari Hospital post his transplant.
15th September, 2014 An appeal was filed in State Commission, Mumbai claiming
compensation of an amount of Rs.50,00,000/-
3rd August, 2015 The State Commission awarded 20,00,00 to Mr. Sandeep Patil
3rd September, 2015 Mr. Patil filed an appeal in National Commission claiming
compensation of an amount of Rs.50,00,000/-.
The National Commission further directed the nomination of an
expert from the All India Institute of Medical Sciences, New
Delhi (AIIMS).The report opined that the Doctor was negligent
on his part for not taking reasonable care.
National Commission also awarded Rs. 40,00,000 to the Mr. Patil
for the loss which he and his family incurred.

The matter is now before the Hon’ble Supreme Court of India.

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 THE STATEMENT OF ISSUES

ISSUE 1

WHETHER DR. PRADIP SHOULD BE HELD LIABLE FOR MEDICAL

NEGLIGENCE?

ISSUE II

WHETHER THE APPELLANT (MR. SANDEEP) IS ENTITLED TO ANY

COMPENSATION FROM RESPONDENT?

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 THE SUMMARY ARGUMENTS

ISSUE 1

WHETHER DR. PRADIP SHOULD BE HELD LIABLE FOR MEDICAL

NEGLIGENCE?

It is humbly submitted before this Hon’ble Court that the compensation granted by the National
Commission to Mr. Sandeep is not adequate and requisite. The compensation must be just and
adequate, and keeping that principle in mind, one needs to consider the fact that a person is now
deaf. Also, due to the deafness, he will not be able to work conveniently in the near future to earn
his livelihood. It is extremely difficult to understand the plight, the loss which Mr. Sandeep has
suffered a loss which cannot be reversed but adequate compensation can provide a hope of better
living and mental peace to him.

ISSUE II

WHETHER THE APPELLANT (MR. SANDEEP) IS ENTITLED TO ANY

COMPENSATION FROM THE RESPONDENT?

It is humbly submitted before the Hon’ble Court that the next question that falls for consideration
is the compensation which the respondents are liable to pay for their negligence and deficiency
in service. Mr. Sandeep Patil has been rendered deaf for life. The silence in his life can never be
really compensated for in money terms. Deafness can have terrible consequences. It is obvious
that he would require help and maybe later on in life he would have to totally rely on such help.
He has already incurred heavy expenditure on the treatment of his Kidney. It is, thus, obvious
that there should be adequate compensation for the expenses already incurred, the pain and
suffering, mental agony and the future care that would be necessary while accounting for
inflationary trends.

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 ARGUMENTS ADVANCED

ISSUE 1

WHETHER DR. PRADIP SHOULD BE HELD LIABLE FOR MEDICAL

NEGLIGENCE?

1. It is humbly submitted before this Hon’ble Court that the compensation granted by the
National Commission to Mr. Sandeep is not adequate and requisite. The compensation must
be just and adequate, and keeping that principle in mind, one needs to consider the fact that a
person is now deaf. Also, due to the deafness, he will not be able to work conveniently in the
near future to earn his livelihood. It is extremely difficult to understand the plight, the loss
which Mr. Sandeep has suffered a loss which cannot be reversed but adequate compensation
can provide a hope of better living and mental peace to him.

2. “SERVICE” AS PER CONSUMER PROTECTION ACT,1986

It humbly submitted before this Hon’ble Court that the service rendered to a patient by. a
medical practitioner by way of consultation, diagnosis and treatment, both medical and surgical,
would fall within the ambit 2 of 'service' as defined in section 2(1)(0) of the Consumer Protection
Act,1986.

3. MEDICAL NEGLIGENCE IS A TORT OR IS IT A DEFICIENCY IN SERVICE3

It is pertinent to note that before the consumer protection act was proposed the laws related to
medical negligence was always under the law of torts only. Medical liabilities within the
consumer jurisdiction are only a species of the genus of deficiency in services hired. Medical
liability under the consumer jurisdiction undoubtedly includes what is negligence in the law of
torts, but is somewhat wider concept. A practitioner can be held to be liable if his mistake is of
such a nature as to imply an absence of reasonable skill and care on his part, regard being to the
ordinary level of skill in the profession.

2
Indian Medical Association v. VP Shanta and Others AIR1996SC550
3
Dr. Ravinder Gupta v. Ganga Devi 1993 (3)CPR 259

11
In the instant case also, the practitioner has failed to practice the reasonable skill as he firstly
prescribed such a dangerous antibiotic which resulted in the deafness of the patient.

4. Negligence is simply failure to exercise due care. The essential components of negligence,
as recognized, are three4:

a) Duty of care.
b) A breach if that duty of care is established
c) As a direct result of that breach, damage has been caused.
It is pertinent to note that indeed the doctor was vested with the duty to care but he has
breached such duty by giving inappropriate medicine to the patient and the result of which
the patient is now suffering from deafness.

5. MEDICAL NEGLIGENCE

When a doctor is consulted by a patient; the doctor owes to his patient certain duties which are 5 –

i. A duty of care in deciding whether to undertake the case

ii. A duty of care in deciding what treatment to give
iii. A duty of care in the administration of the treatment.

A breach of any of the above mentioned duties gives a right of action for negligence to the
patient. According to the English law, the duty of care arises as soon as the person agrees to treat
the patient using his skill and special knowledge.

Firstly, if the point of duty of care is considered in deciding whether to undertake the case, it is
crystal clear that, Mr. Pradip undertook the case without any excuses. But, in the instant case Dr.
Pradip breached the duty of care in deciding what treatment to give and consequently he should
be held liable for medical negligence. Also as a direct result of that breach, damage has been
caused i.e. deafness of the patient (Mr. Sandeep Patil).

6. MEDICAL NEGLIGENCE – RES IPSO LOQUITUR

4
Jacob Mathew Vs. State of Punjab and Anr. AIR 2005 SC 3180; Bhalchandra Waman Pathe v. State of
Maharashtra MANU/SC/0410/1967
5
A.S.Mittal v. State of U.P AIR 1989 SC 1570; Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and
Anr. MANU/SC/0362/1968 : [1969]1SCR206

12
 The maxim states it very clearly that ‘the act speaks for itself’. The Hon’ble Apex Court in V.
Kishan Rao v. Nikhil Super Specialty Hospital6 considered at length the principle res ipso
loquitur and gave certain illustrations7. The principle is said to be essentially an evidential
principle and the said principle is intended to assist a claimant who, for no fault of his own, is
unable to adduce evidence as to how the accident occurred8.

7. WHETHER THE BOLAM'S CASE APPLICABLE

The classical statement of law in Bolam's case 9 has been widely accepted as decisive of the
standard of care required both of professional men generally and medical practitioners in
particular. It has been invariably cited with approval before Courts in India and applied to as
touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show
that the standard of care and the skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill. So, if particular statement is
considered in the instant case it is clear that the respondent has breached his duty to care.

8. REPORT OF AIIMS
It is submitted before the Hon’ble Court that the National Commission further directed the
nomination of an expert from the All India Institute of Medical Sciences, New Delhi
(AIIMS).The report opined that the Doctor was negligent on his part for not taking
reasonable care. To make a medical practitioner liable, it has to be shown that the injury
resulted was most likely imminent and that no medical practitioner in his ordinary senses and
prudence would have committed that act or omission and in the instant case there is no doubt
that doctor was negligent on his part clearly stated in the report of AIIMS.

9. PREVENT SUCH INSTANCES IN FUTURE - Also it is pertinent to note that purpose of

holding a professional liable for his act or omission, if negligent, is to make the life safer and
to eliminate the possibility of recurrence of negligence in future.
6
(2010) 5 S.C.C 513
7
Cavan Vs. Wilfox (1973) 44 DLR 3d 42 ; Eady Vs. Tenderenda (1975) 2 S.C.R 599, Rietz Vs.Brusel (1979) 1
WWR 31
8
Soni Hospital v. Alum Biyer, A.I.R 2011 Mad. 208 at 214
9
Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582

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 ISSUE II

WHETHER THE APPELLANT (MR. SANDEEP) IS ENTITLED TO ANY

COMPENSATION FROM THE RESPONDENT?

It is humbly submitted before the Hon’ble Court that the next question that falls for consideration
is the compensation which the respondents are liable to pay for their negligence and deficiency
in service. Mr. Sandeep Patil has been rendered deaf for life. The silence in his life can never be
really compensated for in money terms. Deafness can have terrible consequences. It is obvious
that he would require help and maybe later on in life he would have to totally rely on such help.
He has already incurred heavy expenditure on the treatment of his Kidney. It is, thus, obvious
that there should be adequate compensation for the expenses already incurred, the pain and
suffering, mental agony and the future care that would be necessary while accounting for
inflationary trends.

At the outset, it may be noted that in such cases, this court has ruled out the computation of
compensation according to the multiplier method10.

1. QUANTIFICATION OF COMPENSATION

The principle of awarding compensation that can be safely relied on is restitutio in integrum
11
(restoration to the original position ).This principle has been recognized and relied on in Malay
Kumar Ganguly vs. Sukumar Mukherjee12. In Wells v. Wells 13 the House of Lords observed that
the purpose of awarding a lump sum for damages for the costs of future care and loss of future
earnings was to put the plaintiff in the same financial position as if the injury had not occurred,
and consequently the courts had the difficult task of ensuring that the award maintained its value
in real terms, despite the effect of inflation.

10
Balram Prasad vs. Kunal Saha, (2014) 1 SCC 384 ; Nizam’s Institute of Medical Sciences vs. Prashant S.
Dhananka and Others, (2009) 6 SCC 1.
11
Livingstone v. Rawyards Coal Co. HL 1880
12
(2009) 9 SCC 221
13
[1999] 1 A.C. 345.

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2. FUTURE MEDICAL EXPENSES14
A. Going by the uncontroverted statement of expenditure, as Mr Sandeep Patil is now deaf, he
will have to undergo cochlear implant that replaces the function of the damaged inner ear .At
AIIMS the cost of such implant is around 5.12 Lakh and is way higher in the private medical
sector15.
B. After an individual receives the implant, he or she must return to the center for a number of
follow-up services, including the fitting of the external components of the implant; activating
and programming of the implant and its microphone, speech processor and transmitter;
necessary adjustments and reprogramming, and annual check-ups. In addition, recipients
must undergo rehabilitation services with members of the team.( Estimated per month cost –
Rs.5000)
C. Resulting in an annual expenditure of Rs. 60,000/-. Having perused the expenditure very
carefully, it is observed observe that the medical costs for treatment will not remain static,
but are likely to rise substantially in the future years. Mr. Sandeep’s present age is about 45
years. If his life expectancy is about 66.9 years16, for the next 21.9 years, the amount of
expenditure, at the same rate will work out to Rs. 13,14,000/- ( 60,000 * 21.9 Years).
D. It is therefore imperative that we account for inflation to ensure that the present value of
compensation awarded for future medical costs. The impact of inflation affects us all. The
value of today’s rupee should be determined in the future.
E. Apportioning For Inflation - The rate of average inflation rate in India presently is 5.88 %17
The formula to compute the required future amount is calculated using the standard future
value formula:-
FV = PV x (1+r) n
PV = Present Value ; r = rate of return
n = time period

14
V. Krishan Kumar Vs. State of Tamil Nadu Civil Appeal No. 8065 of 2009 ( The same method was adopted by
Justice J.S Khehar in the particular case)
15
http://www.aiims.edu/en/news/awards-honours/79-about-aiims/301-click-here.html
16
http://www.worldlifeexpectancy.com/india-life-expectancy (According to the latest WHO data published in 2015
life expectancy in India is: Male 66.9, female 69.9 and total life expectancy is 68.3 which gives India a World Life
Expectancy ranking of 123.)
17
http://www.inflation.eu/inflation-rates/india/historic-inflation/cpi-inflation-india.aspx

15
 Accordingly, the amount arrived at with an annual inflation rate of 5.8 % percent over 21.9
years is Rs. 45,16,807 + 5.12 Lakh ( Cost of Implant ) = Rs.50,28,807 rounded to
Rs.50,00,000. So, it is humbly submitted before the Hon’ble Court to grant a compensation
of Rs.50,00,000.

3.THE CASE OF MARTIN F’ D’ SOUZA VS. MOHD ISHFAQ, AIR 2009 SC 2049 IS
PER INCURIAM

A. A decision is given per incuriam when the court has acted in ignorance 18 of a previous
decision of its own or of a court of coordinate jurisdiction which covered the case before it,
in which case it must decide which case to follow 19. The rule of per incuriam can be applied
where a court omits to consider a binding 20 precedent of the same court or the superior court
rendered on the same issue or where a court omits to consider any statute while deciding that
issue21.
B. The subsequent judgment of this Court in V. Kishan Rao v. Nikhil Super Speciality Hospital
and Anr22., wherein this Court has declared that the judgment rendered in Martin F. D'Souza
is per incuriam as the law laid down in Martin F. D'Souza (supra) was contrary to the law
laid down in Jacob Mathew.
C. In the case of A. Srimannarayana Vs. Dasari Santakumari and Anr 23 declared judgment in
Martin F. D'Souza per incuriam.

4. In Indian Medical Association v. V.P. Shantha24 it has been held that the following acts are
clearly due to negligence :

(i) Removal of the wrong limb;

(ii) Performance of an operation on the wrong patient;

18
A.R. Antulay vs. R.S. Nayak and another reported in (1988) 2 SCC 602
19
Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 ; 1944 2 All ER 293 at 300.; Huddersfield Police
Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.)
20
Union of India v. Raghubir Singh (1989) 2 SCC 754,
21
Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262
22
MANU/SC/0332/2010 : (2010) 5 SCC 513
23
(2014)1SCC(LS)729
24
AIR 1996 SC550

16
(iii) Giving injection of a drug to which the patient is allergic without looking into the out-patient
card containing the warning;

(iv) Use of wrong gas during the course of an anaesthetic, etc.

So, it is pertinent to note that as stated above third point is relevant to the present case as
Amikacin has proven harmful to him.

5. Also it is settled law that the hospital is vicariously liable for the acts of its doctors vide Savita
Garg vs. National Heart Institute25, also followed in Balram Prasad’s case (supra).

6. In our country recently in a case Krishna Iyer v. State of Tamilnadu and Others the Apex
Court awarded a compensation of 1.8 crores on July 1, 2015 as she lost her eyes in 1996, due to
the negligence of the doctor. So, it is crystal clear that judiciary has been playing a keen role to
address the issue of medical negligence. Thus, it is humbly contended before the Hon’ble Court
to award a compensation of Rs.50,00,000.

25
(2004) 8 SCC 56

17
 PRAYER

Wherefore, in the light of the facts presented, arguments advanced and authorities cited, the
appellant humbly submits that the Hon’ble Court be pleased to adjudge and declare that:

1. Dr. Pradip should be held liable for medical negligence.

2. The appellant (Mr. Sandeep) is entitled to a compensation of Rs.50,00,000 from
respondent.

Pass any other order, which the court may deem fit in light of justice equity and
good conscience.

All of which is humbly prayed,

(Counsel on behalf of Appellant)

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