GEETA INSTITUTE OF LAW

Memorial from respondents side

TC -24

GIL INTRA MOOT COURT COMPETITION

FOR THE ACADEMIC YEAR 2022-2023

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE REDRESSAL

FORUM,PANIPAT

-IN THE MATTER OF-

CHANDLER………………………………………………………….(PETITIONER)

VS.

DR. JOEY ……………………………………………………………(RESPONDENT)

MEMORANDUM ON THE BEHALF OF THE RESPONDENT

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 GEETA INSTITUTE OF LAW
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TABLE OF CONTENT

 LIST OF ABBREVIATIONS
 LIST OF AUTHORITIES
 STATEMENT OF JURISDICTIONS
 STATEMENTS OF FACTS
 ISSUE RAISED
 SUMMARY OS ARGUMENTS
 PLEADINGS IN ADVANCE
 PRAYER

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LIST OF ABBREVIATIONS

ABBREVIATIONS DESCRIPTION

SC SUPREME COURT

AIR ALL INDIA REPORT

ANR. ANOTHERS

HC HIGH COURT

HON’BLE HONORABLE

ILR INDIAN LAW REPORTS

ORS. OTHERS

SCC SUPREME COURT CASES

SCR SUPREME COURT REPORTS

ED. EDITION

U/S UNDER SECTION

U/A UNDER ARTICLE

ART. ARTICLE

i.e. THAT IS

v. VERSUS

& AND

U.O.I. UNION OF INDIA

Govt. GOVERNMENT

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LIST OF AUTHORITIES

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 Achutrao Haribhau Khadwa and Ors.v. the State of Maharastra

 Calcutta Medical Research Institute v. Bimalesh Chatterjee
 Dr. Laxman Balkrishna Joshi v. Dr.Trimbak Bapu Godbole and Anr.(1969) 1
scr206
 Dr. M .Kochar v. Ispita Seal
  Dr. Suresh Gupta v. Govt. of NCT of Delhi and Another2
 Kusum Sharma v. Batra hospital

 LEGAL DATABASE
1. www.indiankanoon.com
2. www.ipleaders.in
3. www.legalquest.com
4. www.lawoctopus.com
5. www.lexology.com

STATEMENT OF JURISDICTIONS

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The Respondents have approached the Hon’ble District Consumer Dispute Redressal Forum
Panipat through sec 2(42) of the consumer protection act, 2019

34. (1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction
to entertain complaints where the value of the goods or services paid as consideration does not
exceed one crore rupees: Provided that where the Central Government deems it necessary so to
do, it may prescribe such other value, as it deems fit. (2) A complaint shall be instituted in a
District Commission within the local limits of whose jurisdiction,— (a) the opposite party or
each of the opposite parties, where there are more than one, at the time of the institution of the
complaint, ordinarily resides or carries on business or has a branch office or personally works for
gain; or (b) any of the opposite parties, where there are more than one, at the time of the
institution of the complaint, actually and voluntarily resides, or carries on business or has a
branch office, or personally works for gain, provided that in such case the permission of the
District Commission is given; or (c) the cause of action, wholly or in part, arises; or (d) the
complainant resides or personally works for gain.

3) The District Commission shall ordinarily function in the district headquarters and may
perform its functions at such other place in the district, as the State Government may, in
consultation with the State Commission, notify in the Official Gazette from time to time.

STATEMENT OF FACTS

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 Dr. Joey is a well established surgeon in Geeta Hospital, Panipat. He is a heart specialist
and had got many awards for his remarkable work in the field of medicine
 Chandler got unwell and called Dr. Joey to visit him. Meanwhile he advised Chandler to
get some tests done
 Chandler was diagnosed as a NYHA CLASS IV patient. He suffered from breathlessness,
chest pain and had been previously diagnosed with diabetes, hypertension.
 Dr. Joey recommended to undergo CABG (Cornary Artery Bypass Graft) surgery. All the
risks and complications of the surgery were explained to him and necessary consent
obtained thereafter
 Dr. Joey had almost all the equipments required for the surgery that he had recently
purchased as he had planned to start his own private clinic.
 He hired a nurse, Monica, for assistance. The surgery was successful and he was
wheeled out into post operational care at his own residence under supervision of Monica
guided by Dr. Joey.
 During recovery condition, Chandler’s position deteriorated. Monica took the necessary
care, but she couldn’t handle the situation and his health worsened. She tried calling Dr.
Joey but he was busy in the hospital and didn’t answer her call. Chandler developed
blisters all over his body which eventually resulted in being gangrenous, due to his past
diabetic history. This resulted in amputation of his certain fingers and toes.
 On a later examination it was found that the condition of Chandler had deteriorated
because of a sudden drop in his body temperature, which although was a normal post op
complication, but due to past diabetic record of the patient had exaggerated to this extent.
 Now, Chandler has brought an action against Dr. Joey and Monica for Negligence,
breach of duty and claim damages for loss of livelihood.

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ISSUE RAISED

ISSUE 1

1 . WHETHER THERE IS ANY NEGLIGENCE BY DOCTOR JOEY AND MONICA?

ISSUE2

2.WHETHER DR. JOEY IS LIABLE TO PAY COMPENSATION TO CHANDLER?

SUMMARY OF ARGUMENTS

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ISSUE 1

1 . WHETHER THERE IS ANY NEGLIGENCE BY DOCTOR JOEY AND MONICA?

It is most humbly submitted before the Hon’ble court that Dr. Joey and Monica is not guilty
under negligence. He had taken all the essential care of chandler as he had purchased all the
essentials equipments necessary for the surgery and also taken the consent of the Chandler. Dr.
Joey had also appointed Monica as nurse for after. Dr. Joey and Monica is a heart specialist and
performed the necessary standard of care so Dr. Joey and Monica is not liable for breach of
duty.

ISSUE 2

2.WHETHER DR. JOEY IS LIABLE TO PAY COMPENSATION TO CHANDLER?

It is most humbly submitted before the Hon’ble court that Dr. Joey and Monica were not liable to
pay compensation because Dr. Joey have taken the free consent of the chandler for the operation
after telling all the risks and complications of the surgery .and taken all the precautions during
the surgery and also appointed the nurse for the care of chandler after the operation. On a later
examination it was found that the chandler had deteriorated because of a sudden drop in his body
temperature ,which although was a normal post op complication

PLEADINGS IN ADVANCE

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 GEETA INSTITUTE OF LAW
Memorial from respondents side

1 . WHETHER THERE IS ANY NEGLIGENCE BY DOCTOR JOEY AND MONICA?

Medical Negligence

Commission of mistakes or Negligence within the health profession could result in minor
injuries or even lead to some serious injuries and these mistakes could even lead to death. Since
no one is perfect in this world, a person who is skilled and has knowledge of a particular subject
can also commit mistakes. To err is human but to replicate the same mistake due to one’s
carelessness is negligence. 

The fundamental reason behind medical negligence is that the carelessness of the doctors or
medical professionals are often ascertained in various cases where reasonable care is not taken
during the diagnosis, during operations, while injecting anesthesia, etc

A doctor is not liable in all cases where a patient has suffered an injury. He might have a valid
defense that he has not breached the duty of care. 

The error of judgment can be of two types: 

 An error of judgment – In such cases, it has been recognized that it doesn’t amount to
a breach of duty. Merely because a doctor’s decision turned out to be wrong, we
cannot make him liable for medical negligence.

 The error of judgment due to negligence – If all the factors were considered before
coming to a decision then it would be called an error of judgment due to negligence.
This amounts to a breach of duty. 

A doctor owes certain duties of care to his patients, they are as follows:

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 It is his duty to decide whether he wants to undertake the case or not,

 It is his duty to decide what treatment to give and;

 It is his duty to decide the administration of treatment.

In Kusum Sharma v. Batra Hospital[1], it was held by the Supreme Court that a doctor often
adopts a procedure which involves a higher element of risk, but in doing so he honestly believes
that it will provide greater chances of success for the patient. If a doctor has taken a higher risk to
redeem the patient out of his/her suffering and it did not yield the desired result, this may not

amount to medical negligence.

Standard of care 

A standard of care specifies the appropriate treatment and medication procedure as per the
requirements that should be taken into account by a doctor while providing the treatment to his
patients. The care should not be of the highest degree nor the lowest.

Here Dr. Joey followed all the standard of care which were required to be followed as he have all
the equipments and was assisted by the nurse Monica and in post operation care nurse Monica
was with chandler to take care of him

Duty of care

A duty of care in cases of medical negligence is an obligation on one party (doctor) to take care
to prevent harm being suffered by another (patient). Generally, doctors owe an obligation to take
care of their patients. 

There are certain requirements to establish a duty of care. They are as follows:

 A physician is not asked to deal with everyone but when he is taking a case then he
should deal with it with proper care and in accordance with the set standard of care.
A doctor or clinical practitioner prescribing a patient to seek a provider of an extra
health practitioner is acceptable. However, when there is an emergency, a medical

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professional ought to deal with the patient. No health care professional shall
immediately resist dealing with the case unless it is out of the area of his expertise.

 The physician should never stretch nor reduce the gravity of a patient’s condition. He
will have to make sure that he gives proper treatment to the patient considering the
type of ailment the person is suffering from.

 A doctor must have patience as he cannot do without it. The confidentiality of the
details of the patient should be kept secret. However, in a few cases, he can reveal the
details if he feels that it is his duty to do so. For instance, if there is a disease that is
spreading and is dangerous for people then he can make it public and let others know
about it.

 A physician or a doctor is free to choose whom he wants to treat but in case of

emergency he cannot deny dealing with the patient. But after undertaking a case, the
health care professional cannot withdraw from the case without informing the family
members of the sufferer. A temporarily or fully registered medical practitioner should
not voluntarily commit any act of negligence that deprives his patients of the standard
of care.

 When a physician who deals with a particular problem and has expertise in that field
Section 80 of the Indian Penal Code, 1860, says that anything which happens as a
result of an accident or misfortune and without any criminal intention or knowledge
in the doing of a lawful act in a lawful manner by lawful means and with proper care
and caution is not an offense.

 Section 81 of the Indian Penal Code, 1860, states that if anything is done merely by
the reason that it is likely to cause harm but if the same is done without any intention
to cause harm and in good faith in order to avoid other damages to a person or his
property is not an offense.

 Section 88 of the Indian Penal Code, 1860, says that no one can be made an accused
of any offense if he

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In Achutrao Haribhau khodwa and Ors v. the State of Maharashtra[8], the Supreme
Court noticed that the medical profession is very wide and there are a number of
admissible courses for the same. Therefore, we cannot hold a doctor liable as long as
he is performing his duty with due care and caution. Merely because he chooses any
other course of action over another, he is not liable.

ISSUE 2

2.WHETHER DR. JOEY IS LIABLE TO PAY COMPENSATION TO CHANDLER?

It is most humbly submitted before the Hon’ble court that Dr. Joey and Monica were not liable to
pay compensation because Dr. Joey have taken the free consent of the Chandler for the operation
after telling all the risks and complications of the surgery and taken all the precautions during the
surgery and also appointed the nurse for the care of chandler after the operation. On a later
examination it was found that the chandler had deteriorated because of a sudden drop in his body
temperature ,which although was a normal post op complication During recovery condition,
Chandler’s position deteriorated. Monica took the necessary care, but she couldn’t handle the
situation and his health worsened. She tried calling Dr. Joey but he was busy in the hospital and
didn’t answer her call. Chandler developed blisters all over his body which eventually resulted in
being gangrenous, due to his past diabetic history. This resulted in amputation of his certain
fingers and toes. On a later examination it was found that the condition of Chandler had
deteriorated because of a sudden drop in his body temperature, which although was a normal
post op complication, but due to past diabetic record of the patient had exaggerated to this extent.

In the case of Dr M. Kochar vs Ispita Seal, the National Consumer Dispute Redressal
Commission discussed the issue of failure in the IVF procedure. The patient filed a
complaint against the doctor for medical negligence for the failure of this procedure.
The National Commission held that no success in operating a patient cannot make a
doctor liable for medical negligence.

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Compensation claim

In Civil liability, the claim for damages is suffered in the form of compensation. If there is any
breach of the duty of care while operating or under the supervision of the hospital or any doctor.
They are vicariously liable for such wrong committed and are liable to pay damages in the form
of compensation. The CPA will not be able to help the patients who availed a doctor’s service
free of charge or if he has paid only a nominal registration fee.

Burden of proof

The burden of proof of negligence generally lies with the complainant. The law requires a higher
standard of evidence to support an allegation of negligence against any doctor. In cases of
medical negligence, the patient must establish a claim against the doctor in order to succeed.

In Calcutta Medical Research Institute vs Bimalesh Chatterjee, it was held that the
onus of proving proofs against negligence and deficiency in service was clearly on
the complainant

It is humbly submitted before the Hon’ble court That their is not any type of breach of duty by
Dr. Joey and Monica

The Hon’ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole
had observed that every doctor must exercise reasonable “standard of care” that are set out in the
profession. Any breach towards these duties shall hold him liable for medical negligence.and Dr.
Joey had followed the standard of care

There are certain requirements to establish a duty of care. They are as follows

 A physician is not asked to deal with everyone but when he is taking a case then he
should deal with it with proper care and in accordance with the set standard of care.
A doctor or clinical practitioner prescribing a patient to seek a provider of an extra

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health practitioner is acceptable. However, when there is an emergency, a medical

professional ought to deal with the patient. No health care professional shall
immediately resist dealing with the case unless it is out of the area of his expertise.

 The physician should never stretch nor reduce the gravity of a patient’s condition. He
will have to make sure that he gives proper treatment to the patient considering the
type of ailment the person is suffering from.

 When a physician who deals with a particular problem and has expertise in that field
is unavailable and another physician is sent for the treatment, the acting doctor is entitled
to get his charges but should ensure the patient’s approval or permission to resign on the
coming of the physician engaged.

Doctor Joey had followed all the standard of care which were necessary as he had all the
equipment required for the surgery and also hired a assistance nurse Monica for surgery.

Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. (1969) 1 SCR 206 was a
case under Fatal Accidents Act, 1855. It does not make a reference to any other decided case.
The duties which a doctor owes to his patients came up for consideration. The Court held that a
person who holds himself out ready to give medical advice and treatment impliedly undertakes
that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a
patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a
duty of care in deciding what treatment to be given or a duty of care in the administration of that
treatment. A breach of any of those duties gives a right of action for negligence to the patient.
The practitioner must bring to his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and
competence judged in the light of the particular circumstances of each case is what the law
requires.

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PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited, it
is most humbly prayed and implored before the Hon’ble District Consumer Dispute Redressal
forum , that it may be graciously pleased to adjudge and declare that:

1. To dismiss the petition file by the petitioner as there is not any type of negligence by Dr.
Joey and Monica .

Any other order as the Hon’ble Court deems fit in the interests of equity, justice and
good conscience.

All of which is humbly and respectfully submitted.

(S/d)-

Counsels for respondent

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