TEAM CODE: 001

4th INTRA UNIVERSITY MOOT COURT COMPTITION, 2020

BEFORE

THE HON’BLE SUPREME COURT

SPECIAL LEAVE PETITION 254 of 2020

UNDER ARTICLE 32 OF THECONSTITUTION

IN THE MATTER OF:

VIKRANT MATHUR …APPELLANT

v.

QUICK HEAL HOSPITAL …RESPONDENT

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE SUPREME COURT

MEMORIAL ON BEHAL OF THE APPELLANT

 STATEMENT OF THE FACTS

BACKGROUND OF THE CASE

¶1. The demise of the wife of the appeallant on 01.05.2019 has resulted in the legal
proceedings being initiated by the appellant on a belief that the cause of her death was
medical negligence.

¶2. Late Mrs. Neha was the wife of appellant who had a complicated medical history. Earlier
she was on diabetic alert, and recently diagnosed with esophageal cancer and hypertension.
She was under the supervison of Dr. Shalabh Saxena.

¶3. On April 20, 2019, Neha took her medicines as prescribed after dinner. Thereafter, at
around midnight, she complained to Vikrant of severe anxiety and suffocation. Since Dr.
Shalabh was aware of Neha’s medcal history. Vikram contacted Dr. Shalabh on messenger
app. Dr.Shalabh was abroad for 15 days, but he did prescribe paracetamol and advised to go
for examination. After taking the prescribed medicine of Doctor Shalabh, Neha felt relaxed.

¶4.Next morning, she was admitted in a “renowned” private hospital namely Quick Heal
Super Specialty Hospital (Respondent No. 1) There she was attended by Doctor Sivakant
Jhunjhunwala (Respondent No. 2). She was diagnosed with chills and fever and nasal feed
tube was inserted on the same day by Dr. Anurag (Respondent No. 3) with some allied tests
prescribed.

FACTS OF THE CASE

¶5. One of the tests was a Complete Blood Count Report, which found that the WBC count
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) prescribed a further antibiotic tablet, Polypod
(Cefpodoxime) to be orally administered through nasal tube.

¶6. The patient was then discharged on 23. 04.2019. At this stage also her WBC count was
high. She was prescribed to continue her medication for 15 days post discharge, which as per
Vikrant was administered to her.
¶7. On 29.04.2019, the wife collapsed and was admitted to a nearby a General Hospital.
Doctor Vincent Mattu supervised Neha. He 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. There she was put on life-support ventilation system, her
health continued to deteriorate and she finally succumbed to her illness on 01.05.2019.

¶8. After the demise of his wife the present appellant after discussing with some doctors, filed
a complaint with the Medical Council of India. He then approached the State Consumer
Commission by pleading the hospital were liable for medical negligence.

ARGUMENTS OF BOTH THE PARTIES

¶9.The appellant argued that the manner in which medical treatment was administered
toNeha and her subsequent discharge from the Quick Heal Hospital was inappropriate and
ineffective medication; the premature discharge of the deceased despite her condition
warranting treatment in the ICU; and that the oral administration of Polypod antibiotic,
despite her critical condition, which actually required intravenous administration of the
medicine shows gross medical negligence on part of Hospital authorities.

¶10. The respondents were of the view 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.

DECISION OF STATE AND NATIONAL CONSUMER FORUM

¶11. 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 husband of 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.

THE PRESENT PETITION

¶12. Aggreived by the decision of NCDRC the present appellant preferred an appeal in the
Supreme Court. Leave has been granted. This is how the matter comes before this Hon’ble
Court.
 STATEMENT OF JURISDICTION

The petitioner has approached this Hon’ble Court under Art. 136 *1 of the Constitution of
India, 1950. This Hon’ble Court has been vested, in its discretion, to 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. In this case, the petitioner
has preferred an appeal against the impugned orders of the National Consumer Disputes
Redressal Commission (hereinafter referred as NCDRC).

The present memorandum sets forth the facts, contentions and arguments in the present case.

1
*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, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces.
 STATEMENT OF ISSUES

1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE?

2. WHETHER GROSS MEDICAL NEGLIGENCE EXISTED ON THE PART OF
THE RESPONDENTS
3.
STATEMENT OF ARGUMENTS

THERE WAS GROSS MEDICAL NEGLIGENCE ON THE PART OF

THE RESPONDENTS

 Negligence is the rust of the soul, that corrodes through all her best resolves. 

Negligence is the failure to conform to that standard of care which it is the defendant's duty to
conform to, or the failure to behave like a reasonable or prudent person, in circumstances
where the law requires such reasonable behaviour.

The term negligence is often used in the sense of careless conduct. 2 Way back in 1866
in Grill v. General Iron Screw Collier Co.3 Wills, J. referred to negligence as:
“… the absence of such care as it was the duty of the defendant to use.”

Bowen, L.J. in Thomas v. Quatermaine 4

“… ideas of negligence and duty are strictly correlative and there is no such thing as
negligence in the abstract, negligence is simply neglect of some care which we are bound
by law to exercise towards somebody.”

In Donoghue v. Stevenson 5Lord Macmillan with regard to negligence made the following

classic statement:
“The law takes no cognizance of carelessness in the abstract. It concerns itself with
carelessness only where there is a duty to take care and where failure in that duty has caused
damage. In such circumstances carelessness assumes the legal quality of negligence and
entails the consequences in law of negligence. … The cardinal principle of liability is that the
party complained of should owe to the party complaining a duty to take care, and that the
party complaining should be able to prove that he has suffered damage in consequence of a
breach of that duty.”

2
Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330
3
[1866 LR 1 CP 600 at 612]
4
[(1887) 18 QBD 685] stated: (QBD p. 694)
5
[1932 AC 562]
 In Jacob Mathew 6case the Court while dealing with negligence as tort referred to the Law
of Torts, Ratanlal and Dhirajlal, (27th Edn., 2016 edited by Justice G.P. Singh) and noticed
thus:
“Negligence is the breach of a duty caused by the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a prudent and reasonable man would
not do. Actionable negligence consists in the neglect of the use of ordinary care or skill
towards a person to whom the defendant owes the duty of observing ordinary care and
skill, by which neglect the plaintiff has suffered injury to his person or property. … the
definition involves three constituents of negligence:
(1) A legal duty to exercise due care on the part of the party complained of towards
the party complaining of the former's conduct within the scope of the duty;
(2) breach of the said duty; and
(3) consequential damage.
Cause of action for negligence arises only when damage occurs; for, damage is a
necessary ingredient of this tort.”
In the present case the hospital authorities had legal duty to exercise due care and due to the
breach of said duty, petitioner’s wife scumbled to death.
“Negligence” has been defined in Halsbury's Laws of England, 4th Ed., Vol. 30, Para 34 and
extracted in Kusum Sharma case7
45. … ‘Negligence and duties owed to patient. —A person who holds himself out as
ready to give medical advice or treatment impliedly undertakes that he is possessed of
skill and knowledge for the purpose. Such a person, whether he is a registered medical
practitioner or not, who is consulted by a patient owes him certain duties, namely a duty
of care in deciding whether to undertake the case; a duty of care in deciding what
treatment to give; and a duty of care in his administration of that treatment. … A breach
of any of these duties will support an action for negligence by the patient.’

RESPONDENT FAILS TO SATISFTY BOLAM’S TEST

With regard to the professional negligence, it is now well settled that a professional may be
held liable for negligence if he was not possessed of the requisite skill which he professed to
6
[(2005) 6 SCC 1 : 2005 SCC (Cri) 1369]
7
Kusum Sharma v. Batra Hospital & Medical Research Centre, (2010) 3 SCC 480
have possessed or, he did not exercise, with reasonable competence in the given case the skill
which he did possess.8 Negligence in the context of the medical profession necessarily calls
for a treatment with a difference. To infer rashness or negligence on the part of a
professional, in particular a doctor, additional considerations apply. A case of occupational
negligence is different from one of professional negligence.9

In Bolam v. Friern Hospital Management Committee 10

“… 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 art.”
In the present case there were several instances where the Respondent No. 1, 2 and 3 failed to
exercise ordinary skill that an ordinary competent doctor would practice. When the deceased
was initially admitted to the hospital her WBC count was high and also when she was
discharged the WBC count was still high.11 Therefore, there was premature discharge of the
deceased despite her alarming condition warranting treatment in the ICU.

“All medicine is made to make you feel better. If it did the opposite, it would be malpractice”
- Chael Sonnen
Moreover, as per the medical reports the cannula used for intravenous treatment stopped
functioning12 and Respondent No.3 prescribed a further antibiotic tablet, Polypod
(Cefpodoxime)to be orally administered through a nasal tube despite her very life-threatening
condition. Thus, it is clearly established that the Respondent No. 1, 2 and 3 ignored all the red
flags which a reasonable prudent doctor in ordinary circumstances wouldn’t ignore.
And, hence the Respondent fails to satisfy the Bolam’s test thereby making them liable for
the grave negligence.
FAILURE TO TAKE ADEQUATE PRECAUTIONS
8
Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330 : (2009) 3 SCC
(Cri) 399 : (2009) 3 SCC (Civ) 114 at page 336
9
Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1
10
[(1957) 1 WLR 582 : (1957) 2 All ER 118] : (WLR p. 586)
11
Moot Proposition Para 6&7.
12
Moot Proposition Para 6
 Whenever a doctor cannot do good, he must be kept from doing harm.

-Hippocrates
When it comes to the failure of taking precautions, what has to be seen is whether those
precautions were taken which the ordinary experience of men has found to be sufficient. So
also, the standard of care, while assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the date of trial. 13 In the present
case it can be clearly seen that the respondents have terribly failed to take adequate measures
which could be taken when the deceased was admitted. As the deceased was already
diagnosed with esophageal cancer and hypertension Respondents should have been extra
cautious and were required to deal with extra care and caution. The deceased was already
been on diabetic attacks before being diagnosed with cancer and hypertension. 14 All these
facts prima facie shows that the deceased required extra care and caution as any other patient
of such health condition would ordinarily require. The Respondents drastically failed to take
note of these health condition of the deceased due to which her condition deteriorated badly
and eventually she scumbled to death.
Harjol Ahluwalia's case15 “tops in the list of such cases where the court has demonstrated in
unequivocal manner that the criteria for discharge of professional duty is not confined to
simply exercising reasonable care and skill in the area of professional advice and treatment
but it extends to comprehensive duty covering all the ways in which a doctor is called upon to
exercise his skill and judgement in treating a patient.” 16

In Savita Garg v. National Heart Institute 17it has been observed as under:

“16. …. The hospitals are institutions, people expect better and efficient service, if the
hospital fails to discharge their duties through their doctors, being employed on job basis
or employed on contract basis, it is the hospital which has to justify and not impleading a
particular doctor will not absolve the hospital of its responsibilities.”

Thus, as per the facts of the case and conditions of the patient, the Respondents were
unsuccessful in understanding the critical condition of the deceased and thus failed in their

13
Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1
14
Moot Proposition para 1.
15
Harjol Ahluwalia v. Spring Meadows Hospital (1997) 5 CTJ 34 (NC).
16
S.S. Kumar “Medical Practitioners on Trial.” 5 CTJ 137-38 (September 1997).
17
[(2004) 8 SCC 56]
comprehensive duty to treat a patient with reasonable care and caution in reference to her past
medical history.

OVERDOSE OF POLYPOD ANTIBIOTIC DESPITE HER WARRANTING CONDITION,

WHICH IN DECEASED’S FATAL COLLAPSING.

A medical practitioner would be liable where his conduct fell below that of the standards of a
reasonably competent practitioner in his field. The medical professional is expected to bring a
reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence judged in the light of
the particular circumstances of each case is what the law requires.18

Respondent 2 doctor, who was expected to bring a reasonable degree of skill, knowledge and
care, based on his assessment of the patient, prescribed oral administration of the antibiotic.
Doctor Vincent Mattu who supervised the deceased told that the overdose of antibiotic tablet.
Polypod (Cefpodoxime), was the reason of deceased’s fatal collapsing. 19 And further she was
not diagnosed properly in the previous hospital. Respondent 2, instead of re-cannulating the
patient, directed oral administration of antibiotic Polyplod. This was an instance of
negligence. 

He took all this into account and prescribed oral Cepodoxine (Polypod) without making any
attempt to re-cannulate her at that time. This suggests that Respondent 2, assessed the
situation at hand and chose to go the oral route. This was a conscious decision made by him
in the light of circumstances he confronted. Thus, evidently negligence is made that it was
duty of Respondent to go into the causes of increased WBC levels rather than discharge her
from the hospital with undue haste.

It is humbly contended that the hospital and the doctor miserably failed in their duties.  Dr.
Vincent Mattu argues that the overdose experience was a medical disaster that led to his
wife's death. The oral administration of antibiotic Polypod, which was neither the correct
antibiotic for an immune compromised patient (as per blood culture report received) and
premature discharge from the hospital in an unstable condition as the WBC count was high,
indicating that infection had not been controlled. This vividly explains the negligent
behaviour of Respondents.
18
Kusum Sharma v. Batra Hospital & Medical Research Centre, (2010) 3 SCC 480 
19
Moot Court Proposition Para. 8.
The Court pointed out to cases like Ghulam Ahmad Wani v. State of J&K and  Dr.
Mufti Mehmood Ahmad Farooqi v. State of J&K wherein it was held that
negligence would only be proved if it could be shown authoritatively that the acts
of omission and commission were such that no medical professional in his
ordinary senses and prudence would have done or failed to do. The Court then
referred to Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi wherein the Court had
held that for conviction of a doctor for alleged criminal offence, the standard
should be proof of recklessness and deliberate wrong doing i.e. a higher degree
of morally blameworthy conduct. To prosecute a medical professional for
negligence under criminal law it would need to be shown that the accused did
something or failed to do something which in the given facts and circumstances
no medical professional in his ordinary senses and prudence would have done or
failed to do.

George Bernard Shaw- “We have not lost faith, but we have transferred it from
God to medical profession.”