4TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020
ON BEHALF OF RESPONDANT
PARTICIPANT CODE: TC- XXXIV
4TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020
BEFORE THE HON’BLE SUPREME COURT
UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA
SPECIAL LEAVE PETITION (CIVIL) (254/2019)
IN THE MATTER OF
VIKRANT MATHUR.................................................................................. PETITIONER
V.
QUICK HEAL HOSPITAL & ORS................................................................ RESPONDENTS
WRITTEN SUBMISSION ON BEHALF OF RESPONDENT
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TABLE OF CONTENTS
TABLE OF ABBREVIATIONS...........................................................................................................3
TABLE OF AUTHORITIES................................................................................................................4
STATEMENT OF JURISDICTION.......................................................................................................5
STATEMENT OF FACTS...................................................................................................................6
ISSUES RAISED................................................................................................................................9
SUMMARY OF ARGUMENTS.........................................................................................................10
ARGUMENTS ADVANCED..............................................................................................................11
PRAYER..........................................................................................................................................18
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ON BEHALF OF RESPONDANT
Table Of Abbreviations
& And
AIHC All India High Court Cases
A.P Andhra Pradesh
Vol. Volume
AIR All India Reporter
Art. Article
FIR First Information Report
RAYE Research Association for Youth
Empowerment
Cri. Criminal
Cri. L.J./ Cr L.J. Criminal Law Journal
Hon’ble Honorable
ISP Internet Service Provider
YP(HP) Act Young Persons Harmful
Publications Act
NGO Non-Governmental Organization
No. Number
IT Act Information Technology Act
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
Supp Supplementary
UOI Union of India
v. Versus
NCDSRC National Consumer Dispute
Redressal Commission
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Table Of Authorities
A. CASES
1. Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359
2. Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR
1962 SC 1314
3. Pawan Kumar v. State of Haryana, (2003)11 SCC 241
4. C.C.E v. Standard Motor Products, AIR 1989 SC 1298
5. Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214
6. Sitaram Motilal Kalal v. Santanu Prasad Jaishankar Bhatt, AIR 1966 SCC 1697.
7. Indian Medical Association v. V.P.Shantha, 1995 (6) SCC 651.
8. Heaven v. Pender, (1883) 11 Q.B.D 503.
9. Bolam v. Friern Barnet Management Committee, (1957) 1 W.L.R 582.
10. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
11. Hucks v. Cole , (1993) Med LR 393.
12. Yewens v Noakes, (1881) 6 Q.B.D 530.
13. Beard v. London General Omnibus Co, [1900] 2 QB 530
B. STATUTES
1. The Constitution of India.
2. The Consumer Protection Act.
3. The Indian Contracts Act.
C. BOOKS
1. Ratanlal and Dhirajlal, The Law of Torts (26th ed.2019)
2. Pollock & Mulla
3. M.P. Jain
4. Winfield and Jolowicz on Tort. London: Sweet & Maxwell, 2010
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Statement of Jurisdiction
The appellant in the present case has approached the hon’ble Supreme Court of India to initiate the
present appeal under article 136 of the constitution of India. The appellant most humbly and respectfully
submits to the jurisdiction of the hon’ble Supreme Court in the present matter.
Article 136 in The Constitution Of India 1949:
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces
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Statement Of Facts
1. Neha and Vikrant are wife and husband. Neha has been suffering from various health
issues. In recent times her problems have become complex as she is diagnosed with
esophageal cancer and hypertension. She had already been on diabetic alerts before
being diagnosed with cancer and hypertension. She had been under observation for
her ailments under the supervision of Dr. Shalabh Saxena. Vikrant is also a
rheumatologist.
2. On April 20, 2019, Neha took her medicines as prescribed after dinner. When she
went to sleep, suddenly, at around midnight, she complained to Vikrant of severe
anxiety and suffocation.
3. As it was mid night Vikrant called Mr. Shalabh Saxena, who could not pick up the
call. Vikrant sent the whatsapp message to Shalabh regarding the problems Neha is
complaining and she is urgent need of him. The doctor was familiar with her ailment
history. Shalabh after reading the messages replied that he is abroad for fifteen
daysand prescribed to give her a paracetamol for the time being. He advised to take
her to the hospital for immediate examination. After taking the prescribed medicine of
Doctor Shalabh, Neha felt relaxed. She said to Vikrant to wait till morning to visit the
Hospital.
4. Next morning, she was admitted ina renowned nearby hospital named Quick Heal
Super Specialty Hospital. It was a private hospital (Respondent No. 1).In the hospital
she was treated by a doctor Sivakant Jhunjhunwala (Respondent No. 2). She was
diagnosed with chills and fever.
5. Nasal feed tube was inserted on the same day by Dr. Anurag (Respondent No. 3) with
some allied tests prescribed to be carried out.
6. One of the tests was a Complete Blood Count Report, which found that the WBC
count was high, indicative of infection. She had also running temperature of 102
degrees Fahrenheit, and her medical treatment commenced with intravenous
administration of injection Magnex of 1.5 mg. As per the medical reports, the cannula
used for intravenous treatment stopped functioning and (Respondent No.3) Doctor
prescribed a further antibiotic tablet, Polypod (Cefpodoxime) to be
orally administered through the nasal tube.
7. The patient was then discharged from Hospital on 23. 04.2019. At this stage also her
WBC count was high and she was prescribed to continue taking her medicines for a
period of 15 days post discharge, which apparently was administered to her, as per
Vikrant.7
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8. The Vikrant reported that on 29.04.2019, his wife collapsed and had to be
admitted to a nearby different hospital. It was a General Hospital. Doctor
Vincent Mattu supervised Neha. Doctor Vincent told that the overdose of
antibiotic tablet, Polypod (Cefpodoxime), was the reason of Neha’s fatal
collapsing. She was not diagnosed properly in the previous hospital. She was
put on life-support ventilation system. Her health continued to deteriorate and
she finally succumbed to her illness on 01. 5.2019.
9. Vikrant, after the initial period of mourning, is stated to have consulted various
doctors, including his son, who is a doctor practicing in USA.
10. On the basis of discussion, Vikrant decided to sue the doctors in Quick Heal
Hospital for negligence which caused the fatal effect on his wife. Vikrant, the
appellant, filed a complaint with the Medical Council of India. He approached
the State Consumer Commission by pleading the hospital was liable for
medical negligence. The appellant sought to make out a case of gross medical
negligence by highlighting the manner in which medical treatment was
administered toNeha and her subsequent discharge from the Quick Heal
Hospital.:
(a) Inappropriate and ineffective medication;
(b) Premature discharge of the deceased despite her condition warranting treatment
in the ICU;
(c) Oral administration of Polypod antibiotic, despite her critical condition,
which actually required intravenous administration of the medicine.
11. The stand of the respondents was that when the patient was discharged, she was
afebrile, her vitals were normal and she was well-hydrated, with no infection in her
chest or urinary tract. She was stated to be clinically stable and that is why she was so
discharged with proper medical prescriptions for the next 15 days.
12. The State Commission decided in favour of the appellant and directed a
compensation of Rs.15 lakh and costs of Rs.51,000/- to be paid to Vikrant, husband of
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the deceased.
13. Aggrieved by the said order of the State Commission, the respondents preferred an
appeal before the National Consumer Disputes Redressal Commission (NCDRC),
which exonerated the respondents from all imputations of medical negligence.
14. Vikrant filed a Special Leave Petition (SLP 254 of 2019) before the Hon’ble
Supreme Court, against the orders of NCDRC. Leave has been granted. The case has
been listed as (Vikrant Mathur v. Quick Heal Hospital SLP 254 of 2019) for hearing
on 21st March, 2020.
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Issues Raised
1.
WHETHER THE DOCTORS ARE NEGLIGENT
2.
WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE
3.
WHETHER THE PLAINTIFF AND DOCTORS ARE CONTRIBUTORY NEGLIGENT
4.
COMPENSATION AWARDED SHOULD BE SET ASIDE
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Summary Of Arguments
ISSUE 1. WHETHER THE DOCTORS ARE NEGLIGENT
It is humbly submitted that for a person to be negligent, his acts should not be that of a prudent
man. However, in the present case, the Respondents had acted in a reasonable manner and had
taken proper care of the deceased. Their acts were in consonance of the acts of a reasonable and
prudent professional and therefore, they cannot be liable for negligence.
ISSUE 2. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE
It is humbly submitted that the Doctors are the employee of the Hospital and the work done by
them were done during the course of employment. The Hospital authority is not liable for the
negligence of professional men as the mistake was on the part of the Petitioner as they did not
inform the Doctors about the previous things and conditions about which Dr. Salabh Saxena was
aware with.
ISSUE 3. WHETHER THE PLAINTIFF AND DOCTORS ARE CONTRIBUTORY NEGLIGENT
It is submitted to the Honorable Court that the Petitioner is responsible for the accident that had
taken place. As Dr. Salabh Saxena who was well aware with all the previous ailments of the
patient suggested taking her to hospital immediately but they decided to wait for the night.
Furthermore, the condition of the petitioner’s wife was also not proper. Therefore, the Petitioner
should be held liable by the Honorable Court on the grounds of the evidence produced.
ISSUE 4. COMPENSATION AWARDED SHOULD BE SET ASIDE
The tribunal awarded compensation amounting to Rs. 15,00,000 to Petitioner and Rs. 51,000 as
cost. The compensation awarded to them was grossly inadequate in comparison to the pain and
suffering they had and will have to go through in the future. The Tribunal did not take into
account various heads under pecuniary and non-pecuniary damages carefully.
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Arguments Advanced
ISSUE 1. WHETHER THE DOCTORS ARE NEGLIGENT
It is humbly submitted that for bringing an act under the definition of negligence, it must be
proved that the accused failed to act with proper care and caution. However, in the present case,
the Respondents did everything that was necessary and that would have been performed by any
other prudent physician, when put in that situation.
The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of
many cases. It depends on the particular facts and circumstances of the case, and also the
personal notions of the Judge concerned who is hearing the case 1. Where you get a situation
which involves the use of some special skill or competence, then the test as to whether there has
been negligence or not is not the test of the man on the top of a Clapham omnibus, because he
has not got this special skill. The test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the highest expert skill. It is well-
established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man
exercising that particular Article2.
From these general statements it follows that a professional man should command the corpus of
knowledge which forms part of the professional equipment of the ordinary member of his
profession. He should not lag behind other ordinary assiduous and intelligent members of his
profession in the knowledge of new advances, discoveries and developments in his field. He
should have such awareness as an ordinarily competent would have of the deficiencies in his
knowledge and the limitations on his skill. He should be alert to the hazards and risks in any
professional task he undertakes to the extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional task he undertakes no less expertise,
skill and care than other ordinarily competent members of his profession would bring, but need
bring no more. The standard is that of the reasonable average. The law does not require of a
professional man that he be a paragon combining the qualities of a polymath and prophet3.
1
Martin F D’Souza v Mohd. Ishfaq, AIR 2009 SC 2049.
2
Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582.
3
Eckersley v. Binnie (1988) 18 CLR 1; Martin F D’Souza supra note 8.
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Negligence is an omission to do something which a reasonable man guided upon the
considerations which ordinarily regulate conduct of human affairs would do or doing something
which a prudent and reasonable man would not do4.
In the law of negligence, professionals such as lawyers, doctors, architects and others are
included in the category of persons professing some special skill or skilled persons generally.
Any task which is required to be performed with a special skill would generally be admitted or
undertaken to be performed only if the person possesses the requisite skill for performing that
task. Any reasonable man entering into a profession which requires a particular level of learning
to be called a professional of that branch, impliedly assures the person dealing with him that the
skill which he professes to possess shall be exercised and exercised with reasonable degree of
care and caution. He does not assure his client of the result. A lawyer does not tell his client that
the client shall win the case in all circumstances. A physician would not assure the patient of full
recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would
invariably be beneficial, much less to the extent of 100% for the person operated on. The only
assurance which such a professional can give or can be understood to have given by implication
is that he is possessed of the requisite skill in that branch of profession which he is practicing and
while undertaking the performance of the task entrusted to him he would be exercising his skill
with reasonable competence. This is all, what the person approaching the professional can
expect. Judged by this standard, a professional may be held liable for negligence on one of two
findings:
1. Either he was not possessed of the requisite skill which he professed to have possessed,
or,
2. He did not exercise, with reasonable competence in the given case, the skill which he did
possess.
The standard to be applied for judging, whether the person charged has been negligent or not,
would be that of an ordinary competent person exercising ordinary skill in that profession. It is
not necessary for every professional to possess the highest level of expertise in that branch which
he practices5.
4
Prafulla Kumar Rout v State of Orissa, 1995 CrLJ 1277 (Ori).
5
Jacob Matthew v State of Punjab & Anr., AIR 2005 SC 3810.
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Simply because a patient has not favorably responded to a treatment given by a doctor or a
surgery has failed, the doctor cannot be held straightway liable for medical negligence by
applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit
an act or omission which would result in harm or injury to the patient since the professional
reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this.
Things have gone wrong and, therefore, somebody must be punished for it. However, it is well
known that even the best professionals, what to say of the average professional, sometimes have
failures6.
A doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a
reasonable body of medical men skilled in that particular art. He is not negligent merely because
there is a body of such opinion that takes a contrary view7.
In the case of Indian Medical Association v. V.P. Shantha8 the hon’ble Supreme Court observed
that, “ In the matter of professional liability professions differ from other occupations for the
reason that professions operate in spheres where success cannot be achieved in every case and
very often success or failure depends upon factors beyond the professional man’s control. ” The
law considers those injurious acts to be culpable, in general, which a reasonably prudent man
would foresee as being capable of productive of injury.
Also, the plaintiff owed a duty of care in the instant case. This is further supported by the
judgment in the case of Heaven v. Pender9 that says, “….whenever one person is by
circumstances placed in such a position with regard to another that everyone of ordinary sense
who did think would at once recognize that if he did not use ordinary care and skill in his own
conduct with regard to those circumstances he would cause danger of injury to the person or
property of the other, a duty arises to use ordinary care and skill to avoid such danger”.
The argument is further strengthened by the judgment of the Apex court in the Jacob Mathew v.
State of Punjab10 that, “Accident during the course of medical or surgical treatment has a wider
6
Martin F D’Souza, supra note at 8.
7
Bolam, supra note 9.
8
1995 (3) CPJ 1 & 1995 (6) SCC 651.
9
(1883) 11 Q.B.D 503.
10
(2005) 6 SCC 1.
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meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence;
something that does not occur in the usual course of events or that could not be reasonably
anticipated. Care has to be taken to see that the result of an accident which is exculpatory may
not persuade the human mind to confuse it with the consequence of negligence”.
This claim is further supported by the test of negligence under the specified set of actions of
Bolam test which was instituted in the case of Bolam v. Friern Barnet Hospital Management
Committee11.
Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion,
he is not negligent"12, which is very true in the given case as the standard of care provided was
very good and of a reputable status.
Also the case of Hucks v. Cole13 it was stated that medical practitioner would be liable only
when his conduct fell below the standards of a reasonably competent practitioner in his field so
much that his conduct might be deserving of censure or inexcusable.
The standard of care has to be judged in the light of knowledge available at the time of the
incident and not at the date of the trial 14. It is pertinent to note that in the present case, the degree
of reasonable care extended to the administering of the requisite injections to the patient, which
was duly fulfilled by the Respondents. The fact of the severe and unfortunate reaction of the
medication, by the deceased could not have been reasonably foreseen by any prudent practitioner
as there were no visible signs for the same and therefore, negligence on part of the Respondents
cannot be proved.
ISSUE 2. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE
It is humbly submitted before the court that there lies no grounds for vicarious liability of the
hospital for the actions of the doctors as they were not under direct control of the Hospital.
Historical tests centered around finding control between a supposed employer and an employee,
in a form of master and servant relationship.
11
(1957) 1 W.L.R 582.
12
Ibid , pg 10.
13
[1993] 4 Med LR 393.
14
Martin F D’Souza, supra note at 8.
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The roots for such a test can be found in Yewens v Noakes15, where Bramwell LJ stated that:
"...a servant is a person who is subject to the command of his master as to the manner in which
he shall do his work. " The control test effectively imposed liability where an employer dictated
both what work was to be done, and how it was to be done. This is aptly suited for situations
where precise instructions are given by an employer; it can clearly be seen that the employer is
the causal link for any harm which follows. If on the other hand an employer does not determine
how an act should be carried out, then the relationship would instead be one of employer and
independent contractor. This distinction was explained by Slesser LJ:
“ It is well established as a general rule of English law that an employer is not liable for the acts
of his independent contractor in the same way as he is for the acts of his servants or agents, even
though these acts are done in carrying out the work for his benefit under the contract. The
determination whether the actual wrongdoer is a servant or agent on the one hand or an
independent contractor on the other depends on whether or not the employer not only
determines what is to be done, but retains the control of the actual performance, in which case
the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves
the manner of doing it to the control of the doer, the latter is an independent contractor. ” Hence
it is clearly evident that the manner of doing his work was left to his will and was not interfered
with, this proves that he was not an employee of the defendant. Hence this argument also
strengthens the point that his actions cannot make the defendant vicariously liable.
It is also supported by the judgement that said, “The law is settled that a master is vicariously
liable for the acts of his servants acting in the course of employment. Unless the act is done in
the course of employment, the servant’s act does not make the master liable. ”.16
This is further explained in the case of Beard v London General Omnibus Company17 in which
the bus conductor drove the bus, but the bus met with an accident. The judge declared that the
conductor was not working according to the terms of his course of employment and hence the
bus company was not held liable for his actions.
Hence from the above stated arguments it is clearly evident that the defendant cannot be held
vicariously liable for the acts of the doctors.
15
(1881) 6 QBD 530.
16
Sitaram Motilal Kalal v. Santanu Prasad Jaishankar Bhatt, AIR 1966 SC 1697.
17
[1900] 2 QB 530.
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ISSUE 3. WHETHER THE PLAINTIFF AND DOCTORS ARE CONTRIBUTORY NEGLIGENT
It is submitted to the Honorable Court that the Petitioner is responsible for the accident that had
taken place. As Dr. Salabh Saxena who was well aware with all the previous ailments of the
patient suggested taking her to hospital immediately but they decided to wait for the night.
Furthermore, the condition of the petitioner’s wife was also not proper. Therefore, the Petitioner
should be held liable by the Honorable Court on the grounds of the evidence produced.
Insofar as the expression “negligence”, it is well expounded and propounded in Blyth v.
Birmingham Waterworks Co.18,
"Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do."
The counsel submits that the decision taken by the tribunal stating 50% contributory negligence
on the part of the respondents was erred. In a Gujarat State Road Transport Corporation v.
Kamlaben Valjibhai Vora19 case, the Honorable Supreme Court had held that,
“15. Negligence is often used in the sense of careless conduct without reference to any duty to
take care. The use of the term in this sense has introduced some confusion into the subject, and
has tended to obscure the true meaning of negligence as a part of law of tort. When there
is a duty to take care, the standard of care is, frequently, that of the reasonable man, although
this is not always so, and consequently, failure to take reasonable care and negligence are
sometimes used as synonymous terms regardless of whether or not there is any duty cast”.
The following Points need to be considered:
(a). The Petitioner did not take the suggestion of the Doctor who was well aware with the
fact that the deceased was suffering from esophageal cancer and hypertension and was
also a border line diabetic patient.
18
Blyth v. Birmingham Waterworks Co., 1856 (11) Ex. 781
19
Gujarat State Road Transport Corporation v. Kamlaben Valjibhai Vora
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(b). The Petitioner did not inform the Doctors of The Quick Heal Hospital about the
ailments of the deceased.
With these arguments the council tries to prove that there were contributory negligence on the
part of the Petitioner.
ISSUE 4. COMPENSATION AWARDED SHOULD BE SET ASIDE
It is humbly put to the Honorable Court that the compensation awarded by the tribunal should be
cancelled by the Court due to its unjust nature. The council had stated various reasons proving
that there was no negligence on the part of the respondents and on the contrary, the appellants
alone are responsible for the accident caused. Thus there is no support for the compensation to be
upheld by the Court.
In arguendo, if the alleged negligence is proven on part of the respondents, the Honorable Court
should lessen the amount of compensation. The compensation awarded to the appellants are
grossly unjust to the respondents and Court should do justice to the respondents and if not
cancel, then reduce the amount of compensation.
Thus it is humbly submitted to the Court that the decision taken by the tribunal should be
reversed and the compensation awarded should be cancelled.
Prayer
Wherefore in the light of the facts stated, arguments advanced, points raised and the
authorities cited,
1. There had been no negligence on the part of the Respondent,
2. The state commission erred in granting compensation to Appellant,
3. Put a stay on the judgment of the State Commission,
4. Uphold the judgment of NCDRC.
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And pass any other order which this Hon’ble Court may deem fit in the light of justice, equity
and good conscience.
And for this act of kindness of your lordship the petitioner shall be duty bound as ever pray.
18
