MEMORIAL ON BEHALF OF THE APPELANT

Team code - J221

5th INTRA CLASS MOOT COURT

COMPETITION, 2017

HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF

Mr. SANDEEP PATIL……………………………………………APPELANT

V.

Dr. PRADIP KUMAR CHAKRABORTY AND BREACH CANDY

HOSPITAL………………………………………………………RESPONDENT

COUNCIL FOR THE APPELANT

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 MEMORIAL ON BEHALF OF THE APPELANT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS - - - - - - - - - - - - 3&4

INDEX OF AUTHORITIES - - - - - - - - - - - - 5 TO 7

STATEMENT OF JURISTDICTION - - - - - - - - - -8

STATEMENT OF FACTS - - - - - - - - - - - 9 & 10

STATEMENT OF ISSUES - - - - - - - - - - - - 11

SUMMARY OF ARGUMENT - - - - - - - - - - - 12

ADVANCED ARGUMENTS - - - - - - - - - - 13 to 17

PRAYER- - - - - - - - - - - - - - - - - 18

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 MEMORIAL ON BEHALF OF THE APPELANT

LIST OF ABBREVIATIONS

S.NO. PARTICULARS FULL FORM

1. & And

2. A.I.R All India Reporter

3. i.e. That is

4. S.C.C Supreme Court Cases

5. Sec. Section

6. CPA Consumer Protection Act

7. IPC Indian Penal Code

8. St. State

9. M.P. Madhya Pradesh

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 MEMORIAL ON BEHALF OF THE APPELANT

10. V. Versus

11. Ors. Others

12. Anr. Another

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 MEMORIAL ON BEHALF OF THE APPELANT

INDEX OF AUTHORITY

(A)TABLE OF CASES

S.NO. CASE LAWS

1. Anuradha Saha vs State Of West Bengal &Ors.

2. Juggankhan V. The State of M.P.

3. PoonamVerma v. Ashwin Patel and ors.

4. Indian Medical Association V. V.P. Shantha and Ors.

5. Achutrao Haribhau Khodwa and Ors V. St. of Maharashtra and Ors.

6. JACOB MATHEW V. STATE OF PUNJAB.

7. Dr. Alka Gupta vs Medical Council of India & Anr

8. Spring Medows Hospital & Another vs. Harjol Ahluwalia

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 MEMORIAL ON BEHALF OF THE APPELANT

INDEX OF AUTHORITY

(B) BOOKS

S.NO. NAME OF THE BOOKS WITH THE AUTHOR

AUTHOR OR PUBLISHER

1. The Law of Torts, Lexis Nexis, Gurgaon 26thedn. Ratanlal&Dhirajlal

2010

2. Law of Torts, Twenty Third Edition, 2010, Dr. R.K. Bangia

Allahabad Law Agency, Mathura Road,
Faridabad(Haryana)

3. THE INDIAN PENAL CODE ,1860 Bare Act

4. THE CONSUMER PROTECTION ACT, 1986 Bare Act

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 MEMORIAL ON BEHALF OF THE APPELANT

5. THE INDIAN PENAL CODE Ratanlal&Dhirajlal,

revised by Justice K.T.
Thomas & M.A. Rashid

Textbook on the Indian Evidence Act

6. And IPC. K.D. Gaur

(C) IMPORTANT AND DYNAMIC LINKS

 http://www.rxlist.com/amikin-side-effects-drug-center.htm
 http://www.webmd.com/drugs/2/drug-3889/amikacin-injection/details
 https://www.drugs.com/pro/methenamine-mandelate-tablets.html
 http://www.everydayhealth.com/drugs/augmentin
 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779962/
 http://www.consumerrights.org.in/to-redressal.htm
 http://www.moneylife.in/article/4-doctors-of-max-hospital-held-guilty-of-
negligence-anxious-father-awaits-action-after-cicrsquos-order/25719.html
 http://www.firstpost.com/living/anuradha-saha-medical-negligence-case-
does-sc-judgment-bring-hope-1193737.html

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 MEMORIAL ON BEHALF OF THE APPELANT

STATEMENT OF JURIDICTION

The Appellants humbly submits this memorandum for appeal filled under this HON’BLE Court
under section 23 (1) of Consumer Protection Act.1

1
23. 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 to 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: 1[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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STATEMENT OF FACTS

1. Mr.Sandeep Patil, aged about 45 years was suffering from chronic renal failure and was
referred by the Director of Health Services to Breach Candy Hospital for the purpose of a
kidney transplant. At that stage He was already under going Haemodialysis twice a week
and was waiting for a kidney donor. On May 20, 2014 Mr. Patil approached Dr. Pradip
Kumar Chakraborty senior consultant with high fever.
2. On May 29,2014Mr. Patil agreed to get admitted into the hospital due to his serious
condition.On May 30,2014 he was tested for investigated for Typhoid fever, which was
negative and in the following days was tested for few diseases.
3. On June 3,2014Mr. Patil showed a severe urinary tract infection due to Klebsiella species
which causes respiratory, urinaryand wound infection.For this he was about to be
administered Amikacin which is an antibiotic used for stop bacterial infection and
Methenamine Mandelate which is used to prevent and control the returning urinary tract
infections caused by certainbacteria, but he was only administered Amikacin for instead
of Methanine Mendelate for 3 days i.e. form 5thJune 2014 to 7thJune 2014.
4. On June 11,2014Mr. Patil complained to Dr. Pradip that he had problem slight tinnitus in
his ear. Dr. Pradip immediately told to Mr. Patil to stop taking the amikacin and
Augmentin and scored out the treatment on the discharge card.
5. After that Mr. Patil was not under the treatment of the Dr. Pradip. On June 14, 18 and 20,
2014 Mr. Patil received haemodialysis at Breach Candy Hospital.On June 25,2014Mr.
Patil got admitted to Kothari hospital by his own will.On July 30, 2014 Mr. Patil was
operated for a transplant and discharged on August 13, 2014.
6. On September 15, 2014 a complaint was filed in State Consumer Commission against Dr.
Pradip and Breach Candy Hospital claiming amount of Rs.50,00,000. But state
commission awarded only Rs.20, 00,000 to Mr. Patil on august 3, 2015.

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STATEMENT OF FACTS

7. After that Mr. Patil filed an appeal in National commission on September 3, 2015
claiming amount of Rs.50,00,000. National Commission further nominates a expert Dr.
Tanmai Ghosh from All India Institute of Medical science (AIIMS). On the behalf of his
report National Commission rewarded Rs. 40, 00,000.
8. Both the parties approached the Hon’ble Supreme Court of India. The matter is now
before the Hon’ble Supreme Court of India.

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STATEMENT OF ISSUES

Issue 1

Whether Dr. Pradip should be held liable under the act of Medical
Negligence?

Issue 2

Whether adequate compensation has been provided to Mr. Patil?

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 MEMORIAL ON BEHALF OF THE APPELANT

SUMMARY OF ARGUMENTS

Issue 1

Whether Dr. Pradip should be held liable for the act of Medical Negligence?

The counsel on behalf of the Mr.Sandeep Patil most humbly submits that Dr. Pradipand Breach
Candy Hospital was liable for the damages suffered by Appellant because of negligence from the
side of respondent because Dr. Pradip administered amikacin and due to which Mr. Sandeep
Patil got deaf. Indian Medical Association V. V.P. Shantha and Ors. ,2 A three-Judge Bench of
the Apex Court, dealt with how a ‘profession’ differs from an ‘occupation’ especially in the
context of performance of duties and hence the occurrence of negligence.

Issue 2

Whether adequate compensation has been provided to Mr. Patil?

As per facts of the case stated theMr. Patil has suffered great loss. Helossedhis hearing powerand
the compensation provided by the hospital is too less as compelled to the injury occurred to the
Appellant. According to sec. 2 (d) (ii) of CPA, 1986 consumer means any person who hires or
avails any services for a consideration which has been paid or promised or partly paid and partly
promised. Here Mr. Patil suffered irreparable loss which cannot be recovered at any stage of his
life. According to CPA, 1986 every consumer have a right to seek redressal, as mentioned above
Mr. Patil was a consumer of Breach Candy Hospital has a right to get compensation for the
irreparable loss.

2
(1995) 6 S.C.C. 651.Quoted Ibid.

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 MEMORIAL ON BEHALF OF THE APPELANT

ADVANCED ARGUMENTS

Issue 1

Whether Dr. Pradip should be held liable under the act of Medical
Negligence?

As per the facts stated there was medical negligence on the part of the doctor and the hospital
could be supported by the guidelines given as per the follows:

When a medical practitioner attends his patient he owes him the following duties of care

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

b) A duty of care in deciding what treatment to give.
c) A duty of care in the administration of the treatment.

A breach of any of the above mentioned duties give a right of action for negligence to the
patient. Dr. Pradip who prescribed Amikacin to Mr. Patil which is an antibiotic medicine used to
stop bacterial infection and it was administered to Mr. Patil for 3 days (from June 5, 2014 to June
7, 2014). After some days when Mr. Patilwas presented to the haemodialysis unit and
complained to Dr. Pradip that he had slight tinnitus (ringing in the ear) because of the excess
dose of amikacin.

Poonam Verma v. Ashwin Patel and ors.,3

A doctor registered as medical practitioner and entitled to practice in Homoepathy only,

prescribed an allopathic medicine to the patient. As a result the patient died. The doctor was held
liable to be negligent and liable to compensate the wife of the deceased for the death of her
husband.

3
(1996) 4 S.C.C. 332.

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 MEMORIAL ON BEHALF OF THE APPELANT

ADVANCED ARGUMENTS

Anuradha Saha vs State Of West Bengal &Ors45

Anuradha Saha who lived in Ohio was visiting Kolkata with her husband when she developed
skin rashes and fever. A well-known physician Dr. Sukumar Mukherjee prescribed a drug for her
and she was later admitted to the AMRI hospital under the care of three other physicians. Soon
her skin started to peel off and she is diagnosed with a life-threatening condition caused by a
drug reaction. She was airlifted to Breach Candy hospital in Mumbai where she died. Her
husband lodged a criminal case accusing the doctors of negligence. Anuradha Saha died in 1998.

It has taken 15 years for this case.A ruling by the Supreme Court holding three physicians
responsible for the death of a woman in a Kolkata hospital 15 years ago and awarding a record
compensation.

Juggankhan V. The State of M.P6,

The accused, a registered Homoeopath, administered 24 drops of stramonium and a leaf of

dhatura to patient suffering from guinea worm. The accused had not studied the effect of such
substances being administered to a human being. The poisonous contents of the leaf of dhatura,
however, were not satisfactorily established by the prosecution. This Court exonerated the
accused of the charge under sec.302, IPC. However, on a finding that stramonium and dhatura
leaves were poisonous and in no system of medicine, except perhaps ayurvedic system, the
dhatura leafs was given as cure for guinea worm, the act of the accused being guilty of negligent
act. The court observed, “In our opinion, the principle which emerges is that a doctor who
administers a medicine known to or used in a particular branch of medical profession impliedly
declares that he has knowledge of that branch of science and if he does not, in fact, possess that
knowledge, he prima facie actingwith rashness or negligence.

4
17 July, 2015
5
http://www.firstpost.com/living/anuradha-saha-medical-negligence-case-does-sc-judgment-bring-hope-
1193737.html
6
(1965) 2 S.C.R. 622.Quoted Ibid.

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ADVANCED ARGUMENTS

Indian Medical Association V. V.P. Shantha and Ors. ,7

A three-Judge Bench of the Apex Court, dealt with how a ‘profession’ differs from an
‘occupation’ especially in the context of performance of duties and hence the occurrence of
negligence.

The court observed that, a professional man owes to his client a duty in tort as well as in contact
to exercise reasonable care in giving advice or performing services.

Achutrao Haribhau Khodwa and Ors V. St. of Maharashtra and Ors.,8

A mop was left inside the lady patient’s abdomen during an operation. Peritonitis developed
which led to a second surgery being performed on her, but she could not survive. Liability for
negligence was fastened on the surgeon because no valid explanation was forthcoming for the
mop having been left inside the abdomen of the lady.

7
(1995) 6 S.C.C. 651.Quoted Ibid.
8
(1996) 2 S.C.C. 634.

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 MEMORIAL ON BEHALF OF THE APPELANT

ADVANCED ARGUMENTS

ISSUE-2

Whether adequate compensation has been provided to Mr. Patil?

As per the facts Mr. Patil was a consumer of Breach Candy Hospital. According to sec. 2 (d) (ii)
of CPA, 1986 consumer means any person who hires or avails any services for a consideration
which has been paid or promised or partly paid and partly promised. Here Mr. Patil suffered
irreparable loss which cannot be recovered at any stage of his life. According to CPA, 1986
every consumer have a right to seek redressal, as mentioned above Mr. Patil was a consumer of
Breach Candy Hospital has a right to get compensation for the irreparable loss.

So Mr. Patil filed a complaint in State Consumer Commission, Mumbai against Dr. Pradip and
Breach Candy Hospital claiming compensation on the grounds of medical negligence. But State
Consumer Commission awarded an inadequate compensation amount of Rs.20, 00,000.

So further Mr. Patil filed an appeal in National Commission, and then National Commission
nominated an expert Dr. Tanmai Ghosh from AIIMS to examine the matter and given an
unbiased and neutral opinion. Dr. Tanmai Ghoshgave an opinion that the doctor was negligent on
his part for not taking reasonable care which he was supposed to take during his course of
treatment. But the compensation awarded by National Commission was also inadequate for the
irreparable hearing loss and mental agony.

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 MEMORIAL ON BEHALF OF THE APPELANT

ADVANCED ARGUMENTS

As we know that the compensation not bring back his hearing power but get relief him or his
family from undue hardship or other various financial expenses like medicines expenses,
traveling expenses, court fees etc. So Mr. Patil expected an adequate compensation from the
Hon’ble court.

Spring Medows Hospital & Another vs. HarjolAhluwalia9

A minor child was admitted by his parents to a nursing home as he was suffering fever. The
patient was admitted and the doctor diagnosed typhoid and gave medicines for typhoid fever. A
nurse asked the father of the patient to get an injection Lariago which was administered by the
nurse to the patient who immediately collapsed. The doctor was examined and testified that the
child suffered a cardiac arrest on account of the medicine having being injected which led to
brain damage. The National Commission held that the cause of cardiac arrest was intravenous
injection of Lariago of such a high dose. The doctor was negligent in performing his duty
because instead of administering the injection himself he permitted the nurse to give the
injection. There was clear dereliction of duty on the part of the nurse who was not even a
qualified nurse and was not registered with any nursing council of any State. Both the doctor and
nurse and the hospital were found liable and Rs.12.5 lakhs was awarded as compensation to the
parents.

(1998) CPJ 1
9

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PRAYER

IN THE LIGHT OF ARGUMENTS PRESENTED AND AUTHORITIES CITIED, IT IS

HUMBLY SUBMITTED BEFORE THE HON’LE COURT.

1. TO HELD LIABLE THE RESPONDENT FOR MEDICAL NEGLIGENCE.

2. TO HELD LIABLE FOR GRIEVOUS HURT.
3. TO PAY THE ADEQUATE COMPENSATION.

TO PASS ANY OTHER ORDER BASED ON EQUITY, JUSTICE AND GOOD

CONSCIENCE.

COUNSEL FOR THE APPELANT

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