TEAM CODE: ZL-64

9TH ZEAL INTERNAL MOOT COURT COMPETITION, 2024

BEFORE THE HON’BLE HIGH COURT OF TITAN

UNDER ARTICLE 226 OF THE CONTITUTION OF INDIA

IN MATTERS OF
WRIT PETITION : 808 OF 2023

MR. & MRS. SWIFT …PETITIONER

Versus

ST. VINCENT HOSPITAL & DR. KENDRICK HOUSE …RESPONDENT

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9TH ZEAL INTERNAL MOOT COURT COMPETITION, 2023

TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................................ii

LIST OF ABBREVIATIONS....................................................................................................iii

INDEX OF AUTHORITIES......................................................................................................iv

STATEMENT OF JURISDICTION..........................................................................................v

STATEMENT OF FACTS.........................................................................................................vi

ISSUES RAISED........................................................................................................................viii

SUMMARY OF ARGUMENTS................................................................................................ix

ARGUMENTS ADVANCED....................................................................................................xi

ISSUE I: IS THE WRIT PETITION MAINTAINABLE IN THE HON’BLE HIGH COURT

OF TITAN?................................................................................................................................xi

[1.1] : WHETHER THE WRIT PETITION CAN BE MAINTAIN IN

THE HON'BLE HIGH COURT?....................

[1.2]: WHICH WRIT PETITION CAN BE USED HERE?

……………………………………………..

[1.3] : WHETHER FUNDAMENTAL RIGHTS ARE

VIOLATED?..................................................................
[1.4]: WHETHER THERE IS ANY OTHER ALTERNATIVE REMEDY
AVAILABLE?.........................................
ISSUE II: WHETHER DR. KENDRICK HOUSE IS LIABLE FOR MEDICAL
NEGLIGENCE UNDER SECTION 106(1) OF SOKOVIAN NYAYA SANHITA?.......xiv

[2.1] What are the elements of Medical Negligence? ……………………………………..

[2.2] Whether Dr. Kendrick House’s action amounts to Medical Negligence ? …………….
[2.3] Are the ingredients of section 106(1) of Sokovian Nyaya Sanhita applicable? …………

ISSUE III: WHETHER ST. VINCENT HOSPITAL CAN BE HELD VICARIOUS

LIABLE FOR THE ACTIONS OF ITS STAFF …………….…………………………..xvii

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[3.1] Did Dr. House perform the second surgery within the scope of his employment, or was it
an independent action outside his duties? ……………………………………………….
[3.2] Did St. Vincent Hospital properly delegate responsibilities and authority to its medical staff,
and how does this affect vicarious liability?......................................................... ……………...
PRAYER........................................................................................................................xxi

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LIST OF ABBREVIATIONS

ABBREVIATION MEANING
Art. Article
Anr Another
Ors. Others
Rs. Rupees
Sec. Section
Pvt. Ltd. Private Limited
UOI Union of India
CPC Code of civil procedure
SCC Supreme court cases
AIR All India reports
ICU Intensive care unit
& And
No. Number
y.o Year old

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INDEX OF AUTHORITIES

1. BANDHUA MUKTI MORCHA V. UNION OF INDIA [(1984) 3 SCC 161]

T.C. BASAPPA V. T. NAGAPPA
2.
Maneka Gandhi v. Union of India
3.
Common Cause v. Union of India
4.
V. Krishnakumar v. State of Tamil Nadu
5.
Hari Vishnu Kamath v. Ahmad Ishaque
6.
A.K. Kraipak v. Union of India
7.
Maneka Gandhi v. Union of India
8.
Samira Kohli v. Dr. Prabha Manchanda
9.
Poonam Verma v. Ashwin Patel
10.
Bandhua Mukti Morcha v. Union of India
11.
V. Krishnakumar v. State of Tamil Nadu
12.
Charlesworth & Percy
13.
Dr Laxman Balkrishna Joshi vs. Dr Trimbark Babu Godbole and ars., A.I.R. 1969 SC 128
14.
A.S.Mittal v. State of U.P., A.I.R. 1989 SC 1570
15.
SAMIRA KOHLI VS DR PRABHA MANCHANDRA & A.R.S.,
16.
STATE OF HARYANA VS SMT. SANTRA
17.
Smt. Savita Garg vs. The Director, National Heart Institute (2004
18. Cassidy v. Ministry of Health reported in [1951] 2 K.B. 343
19. Gold & Ors. v. Essex County Council reported in [1942] 2 All E.R.237
20. Baer v. Regents of the University of California, 1994
21. Stuart v. University of Maryland Medical System (1996)
22. Friedman v. Reiter (1994)
23. Miller v. Johnson (1981)
24. Hoffman v. Board of Education (2000)
25. Cunningham v. Neumann (1994)
26. Eisenhauer v. Hospital (2000)
27. Tucker v. Hospital Authority (2007
28. Cassidy v. Ministry of Health reported in [1951] 2 K.B. 343
29. Gold & Ors. v. Essex County Council reported in [1942] 2 All E.R.237

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S No. Name of the Statutes

1. BHARTIYA NYAY SANHITA, 2024

2. THE CONSTITUTION OF INDIA 1950

S No. LEGAL DATABASES

1. SCC Online
2. Manupatra
3. LexisNexis

4. JSTOR
5. HeinOnline
6. Westlaw

S No. BOOK NAME

1. RATANLAL AND DHIRAJLAL’S LAW OF TORTS

2. THE LAW OF TORTS BY B.M. GANDHI

3. BLACK LAW’S DICTIONARY

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STATEMENT OF JURISDICTION

This Hon'ble Court has the jurisdiction to entertain the present writ petition under Article
226 of the Sokovian Constitution1,
which grants the High Courts the power to issue writs, directions, or orders, including those
in the nature of habeas corpus, mandamus, prohibition, certiorari, and quo warranto, for
the enforcement of fundamental rights and for any other purpose.

In the present case, the petitioners are invoking the extraordinary jurisdiction of this
Hon'ble Court to seek redress for the violation of their son’s fundamental right to life and
personal liberty guaranteed under Article 21 of the Sokovian Constitution2. The
respondents, through their gross medical negligence, have infringed upon the deceased
Drako Swift’s right to life, resulting in his death. The petitioners have exhausted all
available remedies before the Medical Council, which exonerated the respondents without
proper consideration of the facts, leaving the petitioners with no effective alternative
remedy.

This Hon'ble Court’s writ jurisdiction is invoked for the issuance of a writ of certiorari to
quash the decision of the Medical Council and a writ of mandamus directing a fresh
investigation into the matter of medical negligence. As held in Bandhua Mukti Morcha v.
Union of India3, a writ petition is maintainable for the enforcement of fundamental rights
even against non-state actors when the violation of such rights is evident. St. Vincent
Hospital, while a private entity, performs a public function by providing medical services,
thus making its actions subject to constitutional scrutiny under Article 21.

In light of the violation of fundamental rights and the absence of any adequate alternative
remedy, this Hon'ble Court is vested with jurisdiction to hear and adjudicate this writ
petition under Article 226 of the Sokovian Constitution.

1
Article 226 of the Sokovian Constitution
2
Article 21 of the Sokovian Constitution
3
Bandhua Mukti Morcha v. Union of India [(1984) 3 SCC 161]

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STATEMENT OF FACTS

DESCRIPTION OF THE PARTIES

Mr and Mrs Swift ('Plaintiff') are the parents of the deceased Draco Swift.

Dr Kendrick House and St. Vincent Hospital ('Defendant'), St. Vincent Hospital is a private
multispecialty hospital where Dr Kendrick House is a senior neurosurgeon.

FACTUAL BACKGROUND

Draco, a boy aged 16 years old, is a student at Sherman Oaks High. He was a bright and promising young
man with dreams of achieving great things. He was a diligent student, loved by the teachers and peers
alike. Drako's classroom was on the 1st floor of the school building and had large windows overlooking the
school football ground.

St Vincent Hospital is a private multi-speciality hospital with state-of-the-art infrastructure, comprehensive

healthcare services and world-renowned doctors. Draco was immediately admitted to the emergency room
at St Vincent Hospital. The medical team, trained for such situations, quickly assessed the severity of such
injuries. Recognizing the gravity of the situation, the hospital staff called in Dr. Kendrick House, a senior
neurosurgeon renowned for his expertise in handling complex cases. After the hospital staff explained the
severity of Drako's injuries to his parents and emphasized the need for immediate surgical intervention, it
was stipulated by the hospital to complete the formalities, including signing the required consent form.

SITUATION THEREAFTER

After Dr. Kendrick House proceeded with the surgery he encountered a particularly deep shard beneath the
occipital bone, as he attempted to remove it, he ruptured a nerve, then this ruptured nerve lead to a blood
clot which Dr Kendrick House being a renowned neurosurgeon only noticed it after He surgery was
completed and then realized the clot posed a significant risk to Drako's recovery and could lead to serious

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complications if not addressed promptly, which lead to Dr. house perfuming another surgery forty minutes
after the initial

surgery to remove the blood clot, because of this blood cloth via the ruptured nerve, there was an urgent
need for a second surgery with very little time for performing

the surgery, Drako was kept in the Intensive Care Unit (I.C.U.). ON 1ST July 2024, Drako’s condition
began to deteriorate, and he succumbed to his injuries. So Dr Kendrick House didn't bring his mistake and
the second surgery to Draco's parent's knowledge and didn't get consent for the second surgery from
Draco's parent's

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CAUSE OF ACTION

After Drako’s parents saw the autopsy report on 5th July, they got furious and lodged a complaint against
the St Vincent hospital and Dr. Kendrick House for medical negligence in the medical council on 8 th of
July 2024, after a thorough investigation the council declared that dr. house is not liable for medical
negligence, feeling dissatisfied by the decision of the medical council Drako’s parent approached the
hon’ble High Court to seek justice, the hon’ble High Court allowed writ petition.

CLAIMS

According to Mr. and Mrs. swift (Drako’s parents), medical negligence has been made by St. Vincent
Hospital (a private multi-speciality hospital) and Dr. Kendrick House (A senior neurosurgeon renowned
for his expertise in handling complex cases), due to which Mr. and Mrs. swift lost their son, Mr. and Mrs.
swift want to claim damage.

PETITION

Mr. and Mrs. Swift appealed to the Hon'ble High of Titan. The court will hear the petitioners’ contentions
on the decision and issues as follows on the 6th of October 2024.

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ISSUES RAISED

ISSUE I

WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE HON’BLE HIGH

COURT OF TITAN?

ISSUE II

WHETHER DR. KENDRICK HOUSE IS LIABLE FOR MEDICAL NEGLIGENCE

UNDER SECTION 106(1) OF SOKOVIAN NYAYA SANHITA?

ISSUE III

WHETHER ST. VINCENT HOSPITAL CAN BE HELD VICARIOUSLY LIABLE FOR

THE ACTION OF ITS STAFF.

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE PETITION IS MAINTAINABLE IN THE HON'BLE

HIGH COURT OF TITAN?
It is humbly submitted before the Hon'ble High Court of Titan that the writ petition is maintainable under
Article 226 of the Sokovian Constitution. The High Court has jurisdiction to issue writs to enforce
fundamental rights, including the right to life and personal liberty, which the gross medical negligence of
the respondents has violated. The actions of St. Vincent Hospital and Dr. Kendrick House, as private
actors providing essential public services (healthcare), fall within the purview of the Court's writ
jurisdiction. The second surgery performed on Drako Swift without consent resulted in the deprivation of
his right to life and dignity, thereby necessitating judicial intervention.
Furthermore, the Medical Council's exoneration of Dr House does not provide an adequate alternative
remedy, leaving the petitioners with no option but to approach this Hon'ble Court for justice. The writ
petition is, therefore, maintainable as it seeks to protect constitutional rights violated by the respondents.

ISSUE II: WHETHER DR. KENDRICK HOUSE IS LIABLE FOR MEDICAL

NEGLIGENCE UNDER SECTION 106(1) OF SOKOVIAN NYAYA SANHITA?

It is humbly submitted before the Hon'ble Court that Dr. Kendrick House is liable for medical negligence
under Section 106(1) of Sokovian Nyaya Sanhita. Dr. House acted negligently by performing a second
surgery on Drako Swift without informing or obtaining the consent of the patient's parents. The failure to
obtain informed consent is a breach of the fundamental duty of care owed to the patient, and the
subsequent deterioration of Drako's condition, resulting in his death, establishes a direct link between Dr.
House's actions and the tragic outcome.
The standard of care expected from a medical professional was not adhered to, and Dr. House's actions
demonstrate a failure to act with reasonable caution. Therefore, he is directly liable for medical negligence
under the relevant law.

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ISSUE III: WHETHER ST. VINCENT HOSPITAL CAN BE HELD VICARIOUSLY LIABLE
FOR THE ACTIONS OF ITS STAFF.

It is humbly submitted before the Hon'ble Court that St. Vincent Hospital is vicariously liable for the
actions of Dr. Kendrick House, as he was acting in his capacity as an employee of the hospital. The legal
doctrine of vicarious liability holds that employers are responsible for their employees' negligent acts
during their employment. Dr. House performed the surgery during his working hours, and the hospital
provided the environment and facilities for the procedure.
The hospital failed to exercise proper oversight and ensure that all necessary medical protocols, including
the obtaining of informed consent, were followed. As a result, the hospital is vicariously liable for Dr.
House’s negligent actions, which ultimately led to the death of Drako Swift.

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ARGUMENTS ADVANCED

ISSUE I: WETHER THE WRIT PETITION IS MAINTAINABLE IN

THE HON'BLE HIGH COURT OF TITAN?
The petitioners respectfully submit that the writ petition under Article 226 of the Sokovian Constitution is
maintainable before this Hon'ble Court as the case involves a violation of fundamental rights, specifically
the right to life and personal liberty guaranteed under Article 21 of the Sokovian Constitution, which is
pari-materia to Article 21 of the Indian Constitution. The respondents, through gross medical negligence,
have deprived the petitioners' son, Draco Swift, of his fundamental right to life and dignity. Given the
nature of this violation and the inadequacy of alternative remedies, the writ petition is the appropriate
remedy to seek justice; this will be dealt with on four grounds. Firstly, can the writ petition be maintained
in the Hon’ble High Court? Secondly, which writ petition can be used here? Thirdly, we will examine
whether the fundamental rights are violated and, fourthly, whether any alternative remedy is available.

[1.1] WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE HON’BLE

HIGH COURT?

Jurisdiction Under Article 226 of the Sokovian Constitution:

It is humbly submitted that this Hon'ble High Court has jurisdiction under Article 226 of the Sokovian
Constitution to entertain writ petitions to enforce fundamental rights. The petitioners have approached this
Court because the respondents' actions violated their fundamental rights, particularly under Article 21
(Right to Life).
in T.C. Basappa v. T. Nagappa4, the Indian Supreme Court held that writ jurisdiction under Article 226 is
available not only to correct errors of law committed by inferior courts or tribunals but also to protect the
fundamental rights of individuals. The broad powers of this Hon’ble Court allow it to issue writs in cases
where constitutional rights have been violated, even when the party at fault is a private entity like St.
Vincent Hospital.
article 21 of the Sokovian Constitution guarantees that no person shall be deprived of life or personal
liberty except according to procedure established by law. This Hon'ble Court, like the Indian Supreme
Court in Maneka Gandhi v. Union of India5, has interpreted Article 21 to encompass not only the right to
life but also the right to live with human dignity, which includes the right to receive adequate medical

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care.
in the present case, the gross medical negligence by the respondents in performing a second surgery on
Drako Swift without the consent of his parents and the subsequent death of Drako is a clear violation of his
right to life. The lack of communication and failure to adhere to standard medical practices not only
deprived Drako of his life but also his dignity, as established in COMMON CAUSE V. UNION OF
INDIA6 as established in, V. KRISHNAKUMAR V. STATE OF TAMIL NADU 7, The Supreme Court
held that medical negligence amounts to a violation of the right to life under Article 21. In Mr. & Mrs.
Swift's case, their 16 y.o. son Drako lost his life due to medical negligence, which is a violation of the right
to life under section 21, which allows a writ petition under article 226(1) of Sokovian constitution

[1.2] WHICH WRIT PETITION CAN BE USED HERE?

It is respectfully submitted that the appropriate writ in this case is a writ of certiorari, which can be issued
to quash the decision of the Medical Council exonerating Dr. Kendrick House. The Medical Council's
decision is a quasi-judicial order, and this Hon'ble Court has the power to review such orders if they are
passed without proper application of law or in violation of natural justice. In HARI VISHNU KAMATH
V. AHMAD ISHAQUE8, the Supreme Court held that a writ of certiorari can be issued to quash decisions
of inferior courts or tribunals acting beyond the jurisdiction or without adhering to procedural fairness

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the Medical Council's failure to hold Dr House accountable for performing a second surgery without
consent represents an error of law and a breach of natural justice, making it a fit case for the issuance of
certiorari to quash its findings.
in the case of A.K. KRAIPAK V. UNION OF INDIa 9, The Supreme Court held that the principles of
natural justice must be observed in administrative actions, and certiorari would lie to quash decisions
where these principles were violated. This case is significant because it highlights that certiorari can be
issued when a quasi-judicial body, like the Medical Council, denies the violation of fundamental rights.
Petitioner could argue that the Medical Council's investigation did not adequately consider all relevant
facts or that proper procedures were not followed.

[1.3] WHETHER THE FUNDAMENTAL RIGHTS ARE VIOLATED?

The petitioners submit that the respondents have violated Drako Swift's right to life under Article 21 of the
Sokovian Constitution. The Supreme Court of India, in MANEKA GANDHI V. UNION OF INDIA10,
expanded the interpretation of Article 21 to include the right to live with dignity and receive adequate
medical care. The negligence of the respondents in performing a second surgery without the consent of the
patient’s family and failing to inform them of the potential risks directly resulted in Drako’s death, thereby
infringing his right to life,

In SAMIRA KOHLI V. DR. PRABHA MANCHANDA 11, the Indian Supreme Court held that informed
consent is a critical component of the right to life and personal liberty. The second surgery, performed
without the consent of Drako’s parents, violated his dignity and personal autonomy. Medical procedures
performed without obtaining proper consent are deemed to be a violation of Article 21, further justifying
the maintainability of the writ petition

Private hospitals, while not state entities, perform a public function by providing essential services like
healthcare. In Poonam Verma v. Ashwin Patel12, the Court held that private hospitals are bound by the
fundamental rights of patients when providing medical services. Thus, the actions of St. Vincent Hospital
and Dr. Kendrick House, which led to the death of Drako, must be scrutinized under Article 21. The
private nature of the hospital does not exempt it from being held accountable for violating constitutional
rights.

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[1.4] WHETHER THERE IS ANY OTHER ALTERNATIVE REMEDY AVAILABLE ?

The petitioners have already filed a complaint with the Medical Council, exonerating Dr. Kendrick House.
This decision has left the petitioners without a meaningful remedy. As held in BANDHUA MUKTI
MORCHA V. UNION OF INDIA13, the existence of alternative remedies does not bar a writ petition when
the remedies are not effective in addressing fundamental rights violations. Here, the Medical Council's
findings are inadequate and do not address the gross negligence that caused Drako's death
. At the same time, the petitioners could potentially file a civil suit for damages or pursue criminal action
under Section 106(1) of Sokovian Nyaya Sanhita; these remedies do not address the constitutional
violation of Drako's right to life. In V. KRISHNA KUMAR V. STATE OF TAMIL NADU14, the
Supreme Court allowed the maintainability of a writ petition in a medical negligence case, stating that
when fundamental rights are violated, a writ petition is an appropriate remedy. The petitioners in this
case are similarly seeking relief for the violation of their son's fundamental rights, for which civil or
criminal remedies are insufficient

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ISSUE II: WHETHER DR. KENDRICK HOUSE IS LIABLE FOR

MEDICAL NEGLIGENCE UNDER SECTION 106(1) OF SOKOVIAN
NYAYA SANHITA?
The counsel humbly submits that the Hon'ble High Court of Titan should not proceed under Section
106(1) of Sokovian Nyaya Sanhita, resulting in Dr Kendrick House not being liable for medical
negligence.
Medical carelessness, also known as medical misconduct, is the improper, unqualified, or negligent patient
treatment by a doctor, dentist, or another medical professional. Medical malpractice occurs when a
healthcare provider deviates from the accepted "standard of care" in treating a patient. What a reasonably
prudent healthcare provider would have done or would not have done in the same or similar circumstances
is defined as causal criteria
This will be dealt with on threefold grounds: What are the elements of Medical Negligence? Whether what
Dr Kendrick House did the act amounted to Medical Negligence? Are the ingredients of section 106(1)of
Sokovian Nyaya Sanhita applicable?

[2.1] WHAT ARE THE ELEMENTS OF MEDICAL NEGLIGENCE?

According to Winfield, The Essentials of Medical Negligence are as follows: (1) A legal duty to exercise
due care on the part of the party complained towards the party complaining about the former's conduct
within the scope of the duty, (2) Breach of the said duty, (3) consequential damage.
Duty of care is defined as the legal obligation to act with reasonable care to avoid harming others. The law
imposes a legal duty of care upon a person towards others while performing a certain act so that one would
take reasonable care to avoid such harms that the person could reasonably foresee.

According to the definition mentioned above of duty of care, Dr Kendrick House (a senior neurosurgeon
renowned for his expertise in handling complex cases) owed a duty of care to the deceased Drako Swift,
who did not perform the duty in his total capacity. The operation was delicate and required precision,
considering the sensitive nature of the injuries near the brain, which was not performed as necessary. Dr
House underperformed while performing the surgery; he was not at all focused. He encountered a
particularly deep shard beneath the occipital bone. As he attempted to remove it, he ruptured the nerve.
The rupture led to the formation of a blood clot, which Dr. House only noticed after the surgery was

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completed.

Breach of Duty of care is defined as noncompliance with the legal obligation to act reasonably to avoid
harming others. The law imposes a legal duty of care upon a person towards others while performing a
certain act so that one would take reasonable care to avoid such harms that the person could reasonably
foresee.
"According to Charlesworth & Percy15 on Negligence (Tenth Edition, 2001), in current forensic speech,
negligence has three meanings. They are (i) a state of mind in which it is opposed to intention, (ii) careless
conduct, and (iii) the breach of duty to take care that is imposed by either common or statute law.
Observing Dr Kendrick House's methodologies, the counsel observes careless conduct and breach of duty
to take care, which are relevant to the current scenarios. Dr House's conduct was careless throughout the
procedure. Dr House had a duty to take care, which he failed to perform; he was negligent enough to notice
the rupture only after the surgery. There was no post-operative recheck to see if there might have been any
discrepancies with the patient. This immense carelessness by Dr House led to the sad and untimely death
of Draco Swift

[2.2] DOES DR KENDRICK HOUSE’S ACTION AMOUNT TO MEDICAL

NEGLIGENCE?

It is humbly submitted before the Hon'ble High Court of Titan that in the case OF DR LAXMAN
BALKRISHNA JOSHI VS. DR TRIMBARK BABU GODBOLE AND ARS., A.I.R. 1969 SC 128 16 AND
A.S.MITTAL V. STATE OF U.P., A.I.R. 1989 SC 1570 17, it was laid down that when a patient consults a
doctor, the doctor owes to his patient-specific duties which are: (a) duty of care in deciding whether to
undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the
administration of that treatment.
The counsel would humbly like to mention that Dr House is a SENIOR NEUROSURGEON renowned
for his expertise in handling complex cases. He voluntarily took the case of Draco, yet he performed
medical negligence, which amounted to his death. He should not have performed Draco's surgery if he was
unsure whether he could perform the surgery to his total capacity. The blood clot that occurred due to his
carelessness and underperforming

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ability led to the untimely and sad demise of Draco Swift. Dr Kendrick House had total control of the
surgery. He performed the second surgery in haste without consulting Draco's parents. The counsel would
humbly like to state on the petitioner's behalf that he knew what he was doing, yet he performed medical
negligence. Firstly, he had no right to perform that surgery without his parent's consent; secondly, if he was
performing that surgery, he should have known what that surgery could lead to. The counsel would like to
tell the bench that despite Dr House's assurance that they were doing everything possible to ensure
Draco's speedy recovery, his condition worsened significantly and he succumbed to his injuries.

Dr Kendrick House performed the first and second surgery himself. He was administering the surgeries. He
had moral obligations to perform the surgeries to the best of his ability, yet he did not. During the first
surgery, he ruptured a nerve, and to undo the wrong, he performed the second surgery without Draco's
parents' consent. The second surgery was also unsuccessful as, despite his assurance, Draco's condition
began to deteriorate, and he succumbed to his injuries. This case is an example of medical negligence that
occurred twice

The concept of RES IPSA LOQUITOR is a Latin term meaning "the thing speaks for itself"
For u to determine whether Dr Kendrick House performed Medical Negligence, the doctrine of RES IPSA
LOQUITOR assumes the following;
(1) The nature of the injury gives the clue that without negligence, it could not have happened.
(2) There was no involvement of the patient in the injury in any way.
(3) The injury happened under the circumstances of the supervision and control of the doctor.

The counsel would like to bring notice of the bench to a proven fact that During the first surgery, Dr
House encountered a particularly deep shard beneath the occipital bone. As he attempted to remove it,
he ruptured a nerve. This rupture led to the formation of a blood clot, which Dr House only noticed
after the surgery was completed. This unprofessionalism and negligence by Dr House led to the
death of Draco. If Dr house had been more careful and not negligent during the procedure and
proceeded carefully with removing the shard beneath the optical bone, Draco could have fully
recovered without needing a second surgery and would still have been alive.

It is a known fact that neither Drako nor Drako's parents signed the consent forms granting permission

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to the doctors to carry out the medical procedure for the second surgery. This tells us that neither Draco
nor his parents, Mr. and Mrs. Swift, had any involvement in the performance of the second surgery by
Dr House. Dr Kendrick House operated a second time without consulting either of them.

The counsel would like to bring attention to the fact that Dr Kendrick House was in charge of the first
and second surgeries. He was in total control of the circumstances; he was unfocused while operating
during the first surgery, due to which the blood clot was formed, leading to the performance of the
second surgery. The second surgery was also under the control of Dr House, and the counsel humbly
put deep thought into the fact before the bench that Dr House assured that everything possible was
done to ensure his speedy recovery, yet Draco succumbed to his injureis

[2.3] ARE THE INGREDIENTS OF SECTION 106(1) OF SOKOVIAN NYAYA

SANHITA APPLICABLE?
Section 106(1) of Sokovian Nyaya Sanhita states: Whoever causes death of any person by doing any rash
or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to five years, and shall also be liable to fine; and if such act is
done by a registered medical practitioner while performing medical procedure, he shall be punished with
imprisonment of either description for a term which may extend to two years, and shall also be liable to
fine.
The elements of section 106 (1): Death of any person by doing any rash or negligent act not amounting to
culpable homicide done by a registered medical practitioner while performing a medical procedure.
Here, Dr House is a senior Neurosurgeon whose act of underperformance and unprofessionalism amount to
a rash and negligent act that led to the sad and untimely death of the Plaintiff's son because if Dr house
could have been careful and professional enough, he would have performed the first surgery with utmost
care and thought. Due to his lack of concentration and duty of care towards the patient, he made an
unacceptable move, which led to the performance of the second surgery, which led to the death of Draco
Swift.

In SAMIRA KOHLI VS DR PRABHA MANCHANDRA & A.R.S 18., the Supreme Court held that
Clinical decisions and choices should be recognized from the worth decisions of the patients. The doctor
has a legitimate and moral obligation to give satisfactory data to the patient so the individual can deal
with the data and settle on proper choices.
Compared to Dr House's scenario, Dr house did not inform the plaintiff about the second surgery and went

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on with it. Dr House had a legitimate and moral obligation to give satisfactory data to the patient so the
individual could deal with the data and settle on proper choices, but he chose not to do so.

In STATE OF HARYANA VS SMT. SANTRA19, Smt. Santra, a poor labourer woman who already had
many children and had opted for Sterilisation, developed pregnancy and ultimately gave birth to a female
child despite a sterilization operation, which, obviously, had failed.
This case law is similar in a way that in both cases, due to the medical negligence of the doctor, the patient
had to suffer future damages; in Smt. In Santra's case, she was pregnant again, while in Dr House's case,
Draco lost his life.
The High court of Punjab and Haryana granted relief to the plaintiff by compensating her.

ISSUE III: Whether St Vincent hospital can be held vicariously liable for
the actions of its staff?

It is humbly submitted before the Hon’ble high court of titan in accordance with the doctrine of “Vicarious
Liability” under the Law of Torts, the hospital is vicariously liable for doctors actions. This doctrine is
based on the principle of respondeat superior, which translates as “let the superior be held responsible.” By
this doctrine, an employer can be held liable for the actions of its employees when those actions occur
within the scope of their employment.
In the case of Smt. Savita Garg vs. The Director, National Heart Institute (2004)20 centers on issues of
medical negligence and the responsibilities of healthcare institutions. Smt. Garg was admitted for heart
treatment and underwent surgery, but post-operative complications arose, leading her to allege that the
medical professionals failed to maintain a reasonable standard of care. She claimed negligence in both the
surgical procedure and post-operative care, resulting in significant health issues and emotional suffering.
The court assessed the evidence, including expert testimonies and medical records, and determined that
while complications can occur, the care provided did not meet acceptable medical standards. As a result,
the court found the National Heart Institute liable for the negligence, awarding Smt. Garg compensation for
her physical and emotional distress. This case underscores the importance of accountability in healthcare,
establishing a precedent for patient rights and the standards that medical professionals must uphol the
English Court in the case of Cassidy v. Ministry of Health reported in [1951] 2 K.B. 343 21. In this case, the
earlier decision in the case of Gold & Ors. v. Essex County Council reported in [1942] 2 All E.R.237 22
came up for consideration. Lord Denning, J. speaking for himself observed that a hospital authority is
liable for the negligence of doctors and surgeons employed by the authority under a contract for service
arising in the course of the performance of their professional duties. It was observed as follows:

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" The hospital authority is liable for the negligence of professional men employed by the authority under
contracts for service as well as under contracts of service. The authority owes a duty to give proper
treatment medical, surgical, nursing and the like- and though it may delegate the performance of that duty
to those who are not its servants, it remains liable if that duty be improperly or inadequately performed by
its delegates.

In the present case, the doctor exhibited medical negligence during the surgery, resulting in a blood clot in
the plaintiff's head. It wasn't until 40 minutes later that In the present case, the doctor exhibited medical
negligence during the surgery, resulting in a blood clot in the plaintiff's head. It wasn't until 40 minutes
later that

the doctor recognized the presence of the blood clot in the plaintiff's brain and without obtaining consent
from the parents, the doctor proceeded to perform a second surgery.
Therefore, based on the contentions mentioned above, it is submitted that under the doctrine of “Vicarious
Liability” under the Law of Torts, the hospital is vicariously liable for the doctor’s actions, and the
Respondent is liable to compensate the petitioner.
[3.1] Did Dr. House perform the second surgery within the scope of his employment, or was it an
independent action outside his duties?
St. Vincent Hospital could potentially be held vicariously liable for the actions of its staff, depending on
several sub-issues related to vicarious liability.

Scope of Employment
: It must be established that the staff member was acting within the scope of their employment when the
alleged negligence or misconduct occurred. For instance, if a mistake was made while performing duties
typically associated with their role, this criterion might be satisfied
Case Law: The case of Baer v. Regents of the University of California, 1994 23, reinforces that an employer
can be held liable for any negligent acts committed by an employee as long as those acts occur within the
scope of employment. If Dr. House’s decision to operate was part of his role as a neurosurgeon at the
hospital, the hospital may be liable.
Judgement by court :
The court acknowledged the role of inherent risks associated with certain activities. The plaintiff had to
demonstrate that the injuries were due to negligence rather than the inherent risks related to the activity
involved. The ruling clarified the limits of sovereign immunity, stating that public entities could be held
liable for injuries caused by their negligence, particularly in the context of property maintenance.The court

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reinforced that public entities owe a duty of care to individuals on their property. This includes maintaining
safe conditions and addressing hazards that could foreseeably cause harm.The court discussed comparative
fault principles, determining how the actions of both parties contributed to the incident and how liability
might be apportioned.

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Case law: STUART V. UNIVERSITY OF MARYLAND MEDICAL SYSTEM (1996)24: In this case, a
patient sued the hospital after a nurse administered an incorrect dosage of medication. The court found the
hospital vicariously liable because the nurse was acting within the scope of her employment when the
negligence occurred.
Judgement of court
The court emphasized the importance of informed consent in medical procedures. It established that
patients have a right to be fully informed about the risks and benefits of a procedure before undergoing it.
The court clarified that the standard for disclosure is based on what a reasonable patient would want to
know, which includes significant risks and alternatives to the proposed treatment. The judgment also
stipulated that for a claim of lack of informed consent to be valid, the plaintiff must prove that if they had
been properly informed, they would have chosen a different course of action. The ruling clarified that
healthcare providers could be held liable not only for wrongful acts in treatment but also for failing to
adequately inform patients, which can lead to not just medical injuries but emotional distress.
The Stuart case is significant because it reinforces the necessity for clear communication between
healthcare providers and patients, ensuring patients are fully aware of what to expect from medical
procedures. This ruling has implications for how informed consent is approached in Maryland and
potentially beyond, shaping standards for patient care and accountability within the medical field.

Case law: FRIEDMAN V. REITER (1994)25: A patient suffered harm due to a surgeon's negligence
during a procedure. The court held the hospital liable under the doctrine of vicarious liability, affirming
that hospitals are responsible for the actions of their employed physicians when those actions occur while
providing medical services. The judgments focused. The court reinforced the need for a duty of care and
established that emotional distress claims require proof that the defendant's conduct was negligent. The
ruling differentiated between direct claims of emotional distress arising from a personal injury versus
indirect claims related to witnessing harm to others. The court emphasized that plaintiffs must provide
substantial evidence connecting the emotional distress to the defendant's actions, ensuring that claims are
not based on mere speculation. These cases illustrate circumstances under which hospitals can successfully
defend against claims of vicarious

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liability, particularly when the personnel involved are independent contractors or when the hospital does
not have sufficient control over their actions.

[3.2] : DID ST. VINCENT HOSPITAL PROPERLY DELEGATE RESPONSIBILITIES AND

AUTHORITY TO ITS MEDICAL STAFF, AND HOW DOES THIS AFFECT VICARIOUS
LIABILITY?
Duty to monitor patient care: Even if the staff are technically contractors, the hospital might still be liable
if it is shown that they were acting with apparent authority. This could occur if the hospital created the
impression that the staff were its employees, and the plaintiff relied on this apparent relationship
Consideration: Assessing whether the hospital's policies allowed for adequate delegation of authority and
decision-making processes in surgical cases can shed light on the hospital's responsibility in providing
oversight and ensuring workflows adhere to standard care practices. If there were failures in governance or
supervision, the hospital may carry additional liability.
Miller v. Johnson (1981)26: In this case, a patient suffered complications after surgery, and the nursing
staff failed to monitor vital signs adequately. The court held that the nursing staff had a clear duty to
monitor the patient closely and that their failure to do so constituted negligence.
Judgement by court
The court reaffirmed that attorneys must adhere to a certain standard of care, meaning that they must act in
a manner consistent with the legal representation expected from a reasonably competent attorney. The
ruling emphasized the necessity for the plaintiff (the client) to prove that the attorney's negligence directly
caused harm. This requires demonstrating that the outcome would have differed had the attorney
performed competently. The court also discussed the damages that can be claimed in a legal malpractice
suit, including actual losses and potential lost opportunities that stemmed from the attorney's failure to act
appropriately. The judgment underscored the necessity for clear evidence establishing both the attorney's
misconduct and the resultant damage to the client.
Hoffman v. Board of Education (2000)27: This case involved a school nurse who failed to monitor a
student's condition after administering medication. The court ruled that the nurse had a duty to observe the
student closely, and her failure to fulfil that duty led to a finding of negligence.
Judgement by court: The court examined whether the actions of the school employees were within the
scope of their employment. The ruling focused on the nature of the employee's duties and whether their
actions were sufficiently connected to their responsibilities. The court applied a standard of negligence,
stating that public entities could be held liable if they were found to have acted negligently in their duties

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regarding student safety. The court reinforced the concept of vicarious liability, which holds employers
responsible for the actions of their employees performed within the course of their employment. This
affirmed that the Board of Education could be liable for the negligent actions of its employees if those
actions were conducted in the scope of their employment.The court considered broader public policy
implications, emphasizing the responsibility of schools to ensure the safety and well-being of their
students.
Cunningham v. Neumann (1994)28: In this case, the court addressed the responsibility of healthcare
providers to monitor patients who were at risk for falls. The court found that the hospital failed to
implement appropriate monitoring protocols, which contributed to the patient’s injuries.
Judgement by the court:
The court emphasized the doctrine of informed consent, asserting that medical practitioners must
adequately inform patients of the risks, benefits, and alternatives related to any procedure. Patients have a
right to understand what they are consenting to. The ruling highlighted the importance of patient autonomy
in medical decision-making. Patients should be able to make informed choices based on comprehensive
information about potential risks. The court endorsed a standard that focuses on the reasonable patient's
perspective, meaning that medical practitioners should disclose information that a typical patient would
find significant when considering a treatment option. The court also addressed the plaintiff's need to
demonstrate that the lack of adequate information led to harm or influenced their decision regarding the
medical procedure.
Eisenhauer v. Hospital (2000)29: This case highlighted the obligation of hospitals to ensure adequate
monitoring of patients, particularly in post-operative care. The court found the hospital liable due to
inadequate staffing and failure to monitor the patient, resulting in significant harm.
Judgement by court :
The court reaffirmed that healthcare providers must adhere to a certain standard of care, which is
determined by what

a reasonable provider would do under similar circumstances. The ruling emphasized the necessity for
medical professionals to deliver care that meets established medical and ethical

standards. The court highlighted the importance of expert testimony in establishing the standard of care in
medical malpractice cases. Plaintiffs must provide sufficient evidence through expert witnesses to
demonstrate how the healthcare provider deviated from the accepted standard. The judgment underscored
that plaintiffs must clearly link the provider’s alleged negligence and the injuries suffered. This entails

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proving that the outcome would have been different had the provider adhered to the standard of care.The
court ruled on the hospital's liability as an entity, stating that it could be held accountable for the actions of
its employees if they were acting within the scope of their duties.

Tucker v. Hospital Authority (2007)30: The court ruled that the hospital breached its duty to monitor a
patient who was on a high-alert medication. The failure to conduct regular assessments led to a significant
adverse event, and the hospital was held responsible for its lack of proper monitoring protocols.
Judgement by the court :
The court confirmed that hospitals can be held vicariously liable for the negligent actions of their
employees if those actions occur within the scope of their employment. This principle upholds the
responsibility of hospitals to ensure their staff meets the appropriate standard of care. The court reiterated
the necessity to establish the standard of care for medical professionals within a specific speciality. The
ruling emphasized that expert testimony is crucial to demonstrate how the healthcare provider deviated
from this standard.The court highlighted the importance of demonstrating a causal link between the alleged
negligence and the injury suffered by the plaintiff. Plaintiffs must provide sufficient evidence showing that
the negligence directly resulted in their harm.The court upheld a lower court’s decision regarding the
granting of summary judgment in favor of the hospital, indicating that if plaintiffs fail to produce sufficient
evidence to support their claims of negligence, the court could rule in favor of the defendants without
proceeding to a trial

the English Court in the case of Cassidy v. Ministry of Health reported in [1951] 2 K.B. 343 31. In this case,
the earlier decision in the case of Gold & Ors. v. Essex County Council reported in [1942] 2 All E.R.237 32
was considered. Lord Denning, J. speaking for himself observed that a hospital authority is liable for the
negligence of doctors and surgeons employed by the authority under a contract for service arising

during the performance of their professional duties. It was observed as follows:

"The hospital authority is liable for the negligence of professional men employed by the authority under
contracts for service and under contracts of service. The authority owes a duty to give proper treatment
medical, surgical, nursing and the like- and though it may delegate that duty to those who are not its
servants, it remains liable if its delegates improperly or inadequately perform that duty.”

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.
PRAYER

WHEREFORE, in light of the issues raised and arguments advanced, it is humbly prayed
that this Hon'ble Court may be pleased to adjudge and:

1. HOLD AND DECLARE that St. Vincent Hospital and Dr Kendrick House are liable for
medical negligence.
2. QUASH the decision of the Medical Council exonerating Dr. Kendrick House.
3. DECLARE the writ petition as maintainable.

AND/OR

Pass any other order, direction, or grant relief that it may deem fit in the best interests of
justice, fairness, equity and good conscience.

For this act of kindness, the Applicants shall be duty bound forever.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED.

COUNSEL FOR THE PETITIONER

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32
Supra, Note 2.
33
Kailash Gahlot v. Vijendra Gupta & Ors. CS(OS) 403/2021 (2022).
34
Sh. Viresh v. Shri Dharamvir Singh Gahlan, CS. No. 121 (2023).
35
Atul Kumar Pandey vs Kumar Avinash, CS. No. 121 (2020).

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