TC –XXXIV

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

4 TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT OF INDICA

SPECIAL LEAVE PETITION NO. 254 /2019

VIKRANT MATHUR (Petitioner)

VERSUS
QUICK HEAL HOSPITAL (Respondent)

PETITION INVOKED UNDER ARTICLES 136 OF THE

CONSTITUTION OF INDICA

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDICA

WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS

MEMORANDUM OF ARGUMENTS FOR THE RESPONDENT

UU-LCD-NMCC-2018

[Type here] [Type here]

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ..................................................................................................... i

INDEX OF AUTHORITIES…………………………………………………………………..2

I. CASES…………………………………………………………………………...3

II. STATUTES………………………………………………………………………4….

III. CONSTITUTIONAL PROVISIONS ......................................................................5

IV. ARTICLES, BOOKS AND REPORTS ................................................................. 6

V. JOURNALS REFRRED ........................................................................................ 7

VI. DATABASE REFRRED ...................................................................................... 8

VII. STATEMENT OF JURISDICTION ..................................................................... 9

STATEMENT OF FACTS ...................................................................................................... 10

STATEMENT OF ISSUES .................................................................................................... 11i

SUMMARY OF ARGUMENTS ............................................................................................. 12

ARGUMENTS ADVANCED ................................................................................................. 13

I. WHETHER THE SLP IS MAINTAINABLE BEFORE THE HON’BLE COURT?

1) The SLP is not maintainable………………………………………………14

2) The case is not of general importance.........................................................14

3) Whether the approach of NCDRC has been faulty…………………………14

2
FFD

II. WHETHER THERE WAS MEDICAL NEGLIGENCE ON THE PART OF THE

RESPONDENTS?

1) Whether medication was Inappropriate and ineffective medication?.............15

2) Was Oral administration of Polypod antibiotic admissible ?…………………17

3) Whether the disacharge of Neha was Premature or not ?...................................19

4) Reason of death…………………………………………………………………20

III. WHETHER THE ACT DONE BY THE RESPONDENT WAS UNDER THE
MEDICAL NECESSITY AND GOOD FAITH?

1) There was a medical necessity……………………………………….20

2) The act was done in good faith……………………………………….21

3) There was no professional negligence………………………………..22

PRAYER…………………………………………………………….................................23

3
 LIST OF ABBREVIATIONS

& And
% Percentage
¶ Paragraph
A. Article
A.I.R All India Reporter
Anr. Another
Dr. Doctor
Edn Edition
Govt. Government
HC High Court
Hon’ble Honourable
Ibid Same as immediately above
ILR Indian Law Review
MANU Manupatra
No. Number
(P) Ltd Private Limited
PIL Public Interest Litigation
P&H Punjab and Haryana
Pg. Page
Ors. Others
SCC Supreme Court Cases
SC Supreme Court
UOI Union of India
v. versus
Vol Volume

MEMORANDUM OF ARGUMENTS FOR THE RESPONDENT

HPNLU-IU-MCC-20 TC-XXXIV Page|

 INDEX OF AUTHORITIES

I .CASES

1)Pritam Singh v. the state AIR 1950 SC ,169……………………………………..……14

2)Ashok Nagar welfare association vs R.K Sharma 2001 IIAD Delhi 797, AIR 2001 Delhi
272,90 (2001) DLT 583, 2001 (57) DRJ 722…………………………………………….14
3) Mathai Joby vs George 2016 (1) SCT 548 (SC) , (2016) 7 SCC 700…………………14
4)Consumer Unity and Trust Society, Jaipur v. State of Rajasthan [1992] 1 CPJ 259 (NC)..15
5)S. Tiwari vs. Dr. Pranav ,(1996)1 CPJ 301……………………………………………...16
6)Maynard V. West Midlands Regional Health Authority 635 All England Law Reports

(1985) 1 All ER……………………………………………………………………………………………………………….………18

7) Hunter v. Hanley 1955 SLT 213……………………………………………………..…18
8) Jacob Mathew v. State of Punjab, A.I.R 2005 S.C. 3180……………………………….18
9) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582…………………20
10) Arun Balakrishnan Iyer v. Soni Hospital AIR 2003 Mad 389…………………………20
11) Hucks vs. Cole (1968) 118 New LJ 469………………………………………………21
12) Pt. Parmanand Katara v. Union of India ; (2) (1990) 1 SCC 520………………………21
13) K. Sadanand v. Lisie Hospital I (2006) CPJ 24 NC……………………………………22

II.STATUTES

1)Indian Contract Act 1872……………………………………………….17

2)Consumer protection act,1986……………………………………..……15

III . CONSTITUIONAL PROVISION

1)Art. 136 , The Constitution of India, 1950…………………………………14.

2)Art.21 , The Constitution of India, 1950…………………………………….14

MEMORANDUM OF ARGUMENTS FOR THE RESPONDENT

HPNLU-IU-MCC-20 TC-XXXIV
PG3

IV. ARTICLES ,BOOKS AND REPORTS

1) Emily Jackson, Medical law, Orford Publication, Edn 2nd 2010………………………19

2) Dr. R.K. Bangia Law of Torts, (23rd ed.,Allahabad Law Agency,2013)………………16
3. Henry Campbell Black, Black’s Law dictionary, (4th ed St. Paul minn. West Publishing
Co.,1968)………………………………………………………………………………….15
4) T D Dogra, Medical Jurisprudence & Toxicology, Delhi law House, Edn 11th 2008…..17
5) Sweet & Maxwell, Medical Negligence, South Asian Edition, Edn 5th 2010… ...............20
6) Dr. Jagdish Singh, Medical Negligence and Compensation, Bharat Law Publication,
Edn. 4rd 2014…................................................................................................................. 18
7) Anderw Grubb, Bacterial infection, Oxford University Press, 3rd Edn 2010… ................16
8) Dr Lily Srivastava, Law & Medicine, Universal Law Publishing,4th Edn 2010… .......... 17

V . JOURNALS REFERRED
1) All India Reporter…………………………………………………………..21
2) Supreme Court Cases ................................................................................... 20
3) Indian Law Reporter………………………………………………………..18
4) Company Law Journal …………………………………………………...…18

VI . DATABASE REFERRED
1) www.lexisnexis.com.....................................................................................................21
2) www.scconline.com......................................................................................................20,22
3) www.westlaw.com ........................................................................................................ 16

MEMORANDUM OF ARGUMENTS FOR THE RESPONDENT

HPNLU-IU-MCC-20 TC-XXXIV
PG4

STATEMENT OF JURISDICTION

The petitioner hereby has approached the Hon’ble supreme court of India through
special leave petition no.254, as matter of jurisdiction under the Article 136 of the
Indian constitution.

The memorandum which is being submitted on behalf of the respondent in the matter
Vikrant Mathur vs Quick Heal Hospital , set forth facts, contentious and arguments in
the present case.

The Respondents have appeared before the Hon’ble Supreme Court of Indica in
response to the petitions filed by the Petitioners.

(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

MEMORANDUM OF ARGUMENTS FOR THE RESPONDENT

HPNLU-IU-MCC-20 TC-XXXIV
 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 oesophageal
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, at around midnight, she complained to Vikrant of severe anxiety and
suffocation.
3 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 days and 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 she did not follow the advice of shalabh.

4. Next morning, she was admitted in a 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 her WBC count

8
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.

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 said that the overdose of antibiotic tablet, Polypod (Cefpodoxime), was the reason of
Neha’s fatal collapsing said this without any solid evidence she finally succumbed to her illness
on 01. 5.2019.

9. 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 were 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 to
Neha and her subsequentdischarge 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 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.

9
 STATEMENT OF ISSUES

ISSUE I

WHETHER THE SLP IS MAINTAINABLE BEFORE THE HON’BLE

COURT?

ISSUE II

WHETHER THERE WAS MEDICAL NEGLIGENCE ON THE PART OF

THE RESPONDENTS?

ISSUE III

WHETHER THE ACT DONE BY THE RESPONDENT WAS UNDER THE

MEDICAL NECESSITY AND GOOD FAITH?

10
 SUMMARY OF ARGUMENTS

I . Whether the SLP is maintainable or not before the Hon’ble court?

The SLP is not maintainable because the exceptional power of SLP has been vested with supreme
court to be exercised sparingly only in cases when substantial question of law involved of gross
injustice has been done .Pritam Singh v. the state [AIR 1950 SC 169] stated that court should not
grant special leave , unless it is shown that “exceptional and special circumstance exist” and “if
there is a question of law” i.e. the In our case no rights of the petitioner have been violated by
respondents, no gross injustice has been done because as stated in Ashok Nagar welfare
association vs R.K Sharma that article 136 never meant to be ordinary forum of appeal at all, the
role of supreme court is to deal with the important cases where grave injustice had been done so
the SLP filed by the respondent is not maintainable.
This case is not of general importance because no constitutional provisions has been violated and
there is no issue of matter of national or public importance which is mandatory to file an SPL as
stated in case Mathai Joby vs George in which court put forth certain guidelines for uniformity
and restriction of entertaining of SLPs.
II . Whether there was medical negligence on the part of the respondents?
In this case when Neha was admitted, doctor was not informed that she has esophageal cancer,
diabetic alerts and hypertension. Doctor prescribed Neha on the basis of her current state and
visibility of her current symptoms and what the test resulted i.e., chills and fever.Neha’s
medication was appropriate because after getting admitted in the hospital, some allied tests was
conducted and she was diagnosed of infection for which she was given polypod with sufficient
dose of 200mg. Now talking about the ineffectiveness, polypod is usually taken every 12 hours
for 5 to 15 days depending on the condition being treated. the current line of medication that
doctor used to cure chills and fever was absolutely correct as when Neha was discharged, she was
doing well, 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.
Do note that, she was discharged on 23.4.19 and she collapsed on 29.4.19 it reveals that she was
doing well even during those 6 days after being discharged from the hospital. Reason of

11
collapsing could be multiple organ failure because she was suffering from many complex diseases
and with many therapies of hers.
As Neha was on diabetic alerts, patients having diabetes or on diabetic alerts, their blood sugar
levels are occasionally high called hyperglycemia that causes blood vessels to not work properly,
their blood vessels contract and deteriorate due to high glucose level in their blood so that was the
reason cannula stopped working and was not able to pass medication in the body.

Cannula replacement is painful and time-consuming. Patients with difficult venous access
experience undesirable effects during healthcare, such as delayed diagnosis and initiation of
treatment, stress and pain related to the technique and reduced satisfaction as Neha being in
critical condition as his husband Vikrant cited, there was no time to replace it with any other mode
of intravenous medication. as polypod did the same work that was supposed to be done by
magnex forte 1.5 via intravenous medication i.e., for bacterial infection. So as long as doctor
follows a practice acceptable to the medical profession of the day, he cannot be held liable for
negligence merely because a better alternative course was available.

Neha was discharged on the basis of her medical reports indicating that she was doing fine 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. Higher WBC was due to raised lymphocytes which reflected an
improved immunity response to the infection a therefore totality of decision was to discharge her
as her vitals were normal, she was afebrile. There was no need for her to remain admitted in the
ICU as her husband claimed.
Mere opinion stated by Vincent matoo that cause of collapsing of Neha was due to overdose of
polypod is not an accountable source. Bolam test is required i.e., to prove that it was an overdose
it requires doctor to confirm to a “responsible body” of medical opinion for example any report or
result of a scrutinized medical test not just word by another medical practitioner, need of “expert
evidence”. (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English
tort law case that lays down the typical rule for assessing the appropriate standard of reasonable
care in negligence cases involving skilled professionals such as doctors.) Vincent Matoo and
doctors of quick heal hospital just differed in opinion but that does not make them negligent.
Neha’s death was due to multiple organ failure and not by overdose as she was suffering from

12
various complex diseases and immunocompromised so after suffering a bacterial infection and
when on 20th April 2019 shalabh saxena told Neha to take paracetamol immediately get admitted
in hospital she didn’t follow his advice and got admitted on 21st April which deteriorated her
health even more.
III . Whether the act done by the respondent was under the medical necessity

and good faith ?

As reiterated in the case of Arun Balakrishnan Iyer v. Soni Hospital that in case of emergency the
situation arising during the surgery or medication, doctor can proceed beyond the consent and can
do whatever is necessary in the best interest of the patient. In the instant matter, though the
cannula was not working so in view of the urgency of the situation, treatment was conducted
which doesn’t encumber the liability on the hospital management as they proceeded for the best
interest of the patient by giving polypod through oral administration if it was not given through
oral administration Neha would have died on the spot, she was a critical patient already suffering
from various complexities.
The concept of good faith in respect of criminal liability operates differently, as nothing is said to
be done or believed in,good faith‟ which is done or believed without due care and attention.
Further it has been provided- ,Nothing which is not intended to cause death is an offence by
reason of any harm which it may cause, or known by the order to be likely to cause, to any person
for whose benefit it is done in good faith, and who has given a consent, whether express or
implied, to suffer that harm, or to take the risk of that harm.

The assurance of a professional subsists that he would be exercising his skill with reasonable
competence, wherein he would be held liable for the negligence of either not possessing the
requisite skills which he professed to have possessed or not exercising with reasonable
competence in the given circumstances. A professional man owes to his clients a duty in tort as
well as in contract to exercise reasonable care in giving advice or performing services. Though
doctors can be found guilty only if he falls short of the standard of reasonable skilful medical
practice.

13
 ARGUMENTS ADVANCED

I. WHETHER THE SLP IS MAINTAINABLE BEFORE THE HON’BLE COURT?

1. The SLP is not maintainable.
Hon’ble Supreme court the SLP filed against Quick heal hospital by Mr. Vikrant is not maintainable
because the overriding and exceptional power has been vested with supreme court to be exercised
sparingly only in cases when substantial question of law involved of gross injustice has been done
.Pritam Singh v. the state [AIR 1950 SC 169]1 stated that court should not grant special leave ,
unless it is shown that “exceptional and special circumstance exist” and “if there is a question of
law” i.e. the law was correctly applied, whether the interpretation of law was in accordance with
the settled principles of law. In our case no rights of the petitioner have been violated by
respondents, no gross injustice has been done because as stated in Ashok Nagar welfare association
vs R.K Sharma2 that article 136 never meant to be ordinary forum of appeal at all, the role of
supreme court is to deal with the important cases where grave injustice had been done so the SLP
filed by the respondent is not maintainable.

2. The case is not of general importance.

This case is not of general importance because no constitutional provisions has been violated and
there is no issue of matter of national or public importance which is mandatory to file an SPL as
stated in case Mathai Joby vs George3 in which court put forth certain guidelines for uniformity
and restriction of entertaining of SLPs.

3. Whether the approach of NCDRC has been faulty?

The recent judgment of the Madras High Court in C.S. Subramanian v. Kumarasamy4 in which the
Madras High Court has unequivocally held that the

1
Pritam Singh v. the state AIR 1950 SC ,169
2
Ashok Nagar welfare association vs R.K Sharma 2001 IIAD Delhi 797, AIR 2001 Delhi 272, 90 (2001) DLT 583,
2001 (57) DRJ 722
3
Mathai Joby vs George 2016 (1) SCT 548 (SC) , (2016) 7 SCC 700

14
“services rendered to a patient by a medical practitioner or hospital by way of diagnosis and
treatment both medicinal and surgical would not come within the meaning of service as defined in
section 2(1) of the Act and that” a any sort of compensation to petitioners. patient who undergoes
treatment under a medical practitioner or hospital by way of diagnosis and treatment both medicinal
and surgical cannot be considered to be a consumer within the meaning of section 2(1)(d) of the
Act.”4 According to this judgement the act of respondents does not come under the purview of
consumer protection act as their professional work cannot be defined as service. Hence, the
petitioner is not consumer in this case and respondents are not liable to pay.
The same decision can also be seen in the Consumer Unity and Trust Society, Jaipur v. State of
Rajasthan 5, in which court had earlier declared these services outside the purview of the 1986 Act.

II. WHETHER THERE WAS MEDICAL NEGLIGENCE ON THE PART OF THE

RESPONDENTS?
The Black’s Law Dictionary 6defines Negligence as the omission to do something which a
reasonable man, guided by those ordinary considerations which ordinary regulate the human affairs,
would do or the doing of something which a reasonable and prudent man would not do. The General
Exceptions which can be taken as a defence against the imposition of the charge of criminal
negligence on the management and doctors of the Quick heal Hospital would render that the
Hospital has acted in the best interest of the patient in the critical condition and would thereby quash
any such false charges

1. whether medication was Inappropriate and ineffective medication?

Concealment of medical history of the patients keeps the doctor in the dark as patients do not think
this as a necessity to inform even if that doctor is your regular one or not .so in this case when Neha
was admitted, doctor was not informed that she has esophageal cancer, diabetic alerts and
hypertension. Doctor prescribed Neha on the basis of her current state and visibility of her current
symptoms and what the test resulted i.e., chills and fever.

4
CPA,1986
5
Consumer Unity and Trust Society, Jaipur v. State of Rajasthan [1992] 1 CPJ 259 (NC)
6
Henry Campbell Black, Black’s Law dictionary, (4th ed St. Paul minn. West Publishing Co.,1968)

15
"Don't ask, don't tell" is never a smart policy when it comes to medications and your health. Neither
a patient should hesitate to ask questions or to tell your health care providers if anything seems
amiss.as patient is the final line of defense against medication errors.
Whether you have any chronic or serious health problems should be informed to the concerned
doctor as that involves comparing the list of medications your health care provider currently has
with the list of medications you are currently taking. This helps to avoid medication error. Sharing
your most up-to-date information with your health care providers gives the clearest picture of your
condition and helps avoid medication mistakes. Due to concealment of facts regarding her medical
problems and her current medication that she is consuming, doctor could not conclude that polypod
and the mixture of other complex medication that she was using, the therapies relating to her cancer
could result toxic in When a patient does not give a proper medical history, the doctor cannot be
blamed for the consequences caused due to concealment of medical history.7
In the case of S. Tiwari vs. Dr. Pranav ,(1996)1 CPJ 3018, it was alleged that a tooth was extracted
without a proper test. When bleeding continued, the doctor administered a pain killer. Though the
patient had a blood pressure of 130/90, he did not give the doctor his proper medical history. The
National Commission upheld the findings of the State Commission and dismissed the complaint on
the ground that the patient did not give a correct case history and follow-up when required state.9
Neha’s medication was appropriate because after getting admitted in the hospital, some allied tests
was conducted and she was diagnosed of infection for which she was given polypod with sufficient
dose of 200mg.
Now talking about the ineffectiveness, polypod is usually taken every 12 hours for 5 to 15 days
depending on the condition being treated.10 the current line of medication that doctor used to cure
chills and fever was absolutely correct as when Neha was discharged, she was doing well, 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 check

7
Dr. R.K. Bangia Law of Torts, (23rd ed.,Allahabad Law Agency,2013)
8
S. Tiwari vs. Dr. Pranav ,(1996)1 CPJ 301
9
moot proposition 13
10
288Anderw Grubb, Bacterial infection, Oxford University Press, 3rd Edn 2010

16
Do note that, she was discharged on 23.4.19 and she collapsed on29.4.19 it reveals that she was
doing well even during those 6 days after being discharged from the hospital. Reason of collapsing
could be multiple organ failure because she was suffering from many complex diseases and with
many therapies of hers on as doctor may have chosen different line of medication if he knew about
her medical history and therapies and prescribed her According to her current doses of medication
and therapies. Her treatment for chills and fever was correct as Vikrant being a rheumatologist could
have at least sensed if anything was wrong with Neha between those six days after she was
discharged but he didn’t, so the reason for overdose can only be there if particularly on 29th Neha
took all of her medication relating to cancer, hypertension and diabetes with polypod, which resulted
in collapsing as the other 6 days she was doing okay. It cannot be denied that Neha died due to
process of her previous diseases and its complication, it cannot be held that doctors and hospitals
are negligent as they were not even accustomed with her history of these diseases
2.Was Oral administration of Polypod antibiotic admissible?
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.11
As Neha was on diabetic alerts, patients having diabetes or on diabetic alerts, their blood sugar
levels are occasionally high called hyperglycemia that causes blood vessels to not work properly
their blood vessels contract and deteriorate due to high glucose level in their blood so that was the
reason cannula stopped working and was not able to pass medication in the body12.
Cannula replacement is painful and time-consuming13. Patients with difficult venous access
experience undesirable effects during healthcare, such as delayed diagnosis and initiation of
treatment, stress and pain related to the technique and reduced satisfaction as Neha being in

11
212 ,T D Dogra, Medical Jurisprudence & Toxicology, Delhi law House, Edn 11 th 2008
12
543, Lily Srivastava, Law & Medicine, Universal Law Publishing,4th Edn 2010
13
https://pharmeasy.in/online-medicine-order/polypod-200mg-tablet-17631

17
critical condition as his husband Vikrant cited, there was no time to replace it with any other mode
of intravenous medication.
In another leading case Maynard v. West Midlands Regional Health Authority14, the words of Lord
President (Clyde) in Hunter v. Hanley 1955 SLT 213 15were referred to and quoted as under:
Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of
knowledge available at the time (of the In Jacob Mathew's case (supra) this court observed that
higher the acuteness in emergency and higher the complication, more are the chances of error of judgment.
The court further observed as under
Because of the following reasons doctor shifted to oral administration as the line of treatment, as
polypod did the same work that was supposed to be done by magnex forte 1.5 via intravenous
medication i.e., for bacterial infection. So as long as doctor follows a practice acceptable to the
medical profession of the day, he cannot be held liable for negligence merely because a better
alternative course was available16. A professional may be held liable for negligence if he does not
possess the requisite skill which he claims or if he fails to exercise reasonable competence.
17
According to Jacob v. Mathew case when the professional is confronted with making a choice
between the devil and the deep sea and he has to choose the lesser evil. The medical professional is
often called upon to adopt a procedure which involves higher element of risk, but which he honestly
believes as providing greater chances of success for the patient rather than a procedure involving
lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend
on the facts and circumstances of a given case.18 So, in Neha’s case immediate relief was needed
which asked for oral administration, the doctor no doubt has a discretion in choosing treatment
which he proposes to give to the patient and such discretion is relatively ampler in cases of
emergency.

14
Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER .
15
Hunter v. Hanley 1955 SLT 213
16
Dr. Jagdish Singh, Medical Negligence and Compensation, Bharat Law Publication, Edn. 4rd 2014
17
Jacob Mathew v. State of Punjab, A.I.R 2005 S.C. 3180
18
ILR & CLJ

18
3.Premature discharge of the deceased despite her condition warranting treatment in
the ICU.
Neha was discharged on the basis of her medical reports indicating that she was doing fine 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.20
A doctor discharges a patient when that patient no longer needs inpatient care in hospital “hospital
care is for people who need high level of medical attention”. As Neha no longer was facing chills
and fever or any infection for which she got admitted in hospital hence no high medication was
required.
Higher WBC was due to raised lymphocytes21 which reflected an improved immunity response to
the infection a therefore totality of decision was to discharge her as her vitals were normal, she was
afebrile22
There was no need for her to remain admitted in the ICU as her husband claimed. even doctor
prescribed her medicines for 15 days which shows that doctor took proper care and responsibility
while discharging her and no negligence on his part
In discharge cases, the medical standard of care might require a doctor to:23

• Doctor should perform specific tests to ensure the patient is healthy; which Quick heal
hospital’s doctor while discharging her took care of

• monitor a patient’s vital signs for a specific amount of time to ensure stability, this was also
performed on the part of the doctors

• schedule a follow-up visit, which was scheduled by doctors after 15 days

• diagnose and treat an underlying condition, 21rd to 23rd April this part was also done
.
20
moot proposition 9
21
https://www.healthline.com/health/intravenous-medication-administration-what-to
know#:~:text=Drugs%20typically%20given%20by%20IV&text=chemotherapy%20drugs%20such%20as%20doxoru
bicin,such%20as%20hydromorphone%20and%20morphine
22
moot proposition 10
23
234, Emily Jackson, Medical law, Orford Publication, Edn 2nd 2

19
 It is important to note that simply because you were “Readmitted”, that does not necessarily mean
you were “harmed” by the premature discharge.
4. Reason of death
Mere opinion stated by Vincent matoo that cause of collapsing of Neha was due to overdose of
polypod is not an accountable source. Bolam test24 is required i.e., to prove that it was an overdose
it requires doctor to confirm to a “responsible body” of medical opinion for example any report or
result of a scrutinized medical test not just word by another medical practitioner, need of “expert
evidence”. (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort
law case that lays down the typical rule for assessing the appropriate standard of reasonable care in
negligence cases involving skilled professionals such as doctors.)25
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and
one man clearly is not negligent merely because his conclusion differs from that of other
professional men...The true test for establishing negligence in diagnosis or treatment on the part of
a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill
would be guilty of if acting with ordinary care..."26. Vincent Matoo and doctors of quick heal
hospital just differed in opinion but that does not make them negligent.
Neha’s death was due to multiple organ failure and not by overdose as she was suffering from
various complex diseases and immunocompromised so after suffering a bacterial infection and
when on 20th April 2019 shalabh saxena told Neha to take paracetamol immediately get admitted in
hospital she didn’t follow his advice and got admitted on 21st April which deteriorated her health
even more.
III . WHETHER THE ACT DONE BY THE RESPONDENT WAS UNDER THE MEDICAL
NECESSITY AND GOOD FAITH?
1. There was a medical necessity.
As reiterated in the case of Arun Balakrishnan Iyer v. Soni Hospital27 that in case of emergency
the situation arising during the surgery or medication, doctor can proceed beyond the consent and
can

24
Sweet & Maxwell, Medical Negligence, South Asian Edition, Edn 5th 2010
25
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
26
SSC & West Law
27
Arun Balakrishnan Iyer v. Soni Hospital AIR 2003 Mad 389

20
do whatever is necessary in the best interest of the patient. In the instant matter, though the cannula
was not working so in view of the urgency of the situation, treatment was conducted which doesn’t
encumber the liability on the hospital management as they proceeded for the best interest of the
patient by giving polypod through oral administration if it was not given through oral administration
Neha would have died on the spot, she was a critical patient already suffering from various
complexities.
2. The act was done in good faith.
The concept of good faith in respect of criminal liability operates differently, as nothing is said to
be done or believed in „good faith‟ which is done or believed without due care and attention. Further
it has been provided- „28Nothing which is not intended to cause death is an offence by reason of any
harm which it may cause, or known by the order to be likely to cause, to any person for whose
benefit it is done in good faith, and who has given a consent, whether express or implied, to suffer
that harm, or to take the risk of that harm. 29
Lord Denning as expressed in the case of Hucks v. Cole30 that a medical practitioner cannot be held
liable merely because things went wrong from the mischance or through an error of judgment, but
would be liable only where his conduct fell below to that of the standards of a reasonably competent
practitioner. In case of Neha also respondent can’t be held liable merely because thing went wrong
after the treatment as their act was done in good faith.
In the case of Pt. Parmanand Katara v. Union of India and Ors31 the Apex Court held that, "Every
doctor whether at a Government Hospital or otherwise has the professional obligation to extend his
services for protecting life. The obligation being total, absolute and paramount, laws of procedure
whether in statutes or otherwise cannot be sustained and, therefore, must give way."
Further, an act likely to cause harm, but done without criminal intent and to prevent other harm is
not an offence. The provision laid down that such an act done without any criminal intention to
cause harm, and in good faith for the purpose of preventing other harm not to be an offence. In
Neha’s case also doctors were panglosian and acting in a good faith that’s why they changed her
medication administration process because it was needed.

26
AIR
29
www.lexisnexis.com
30
Hucks vs. Cole (1968) 118 New LJ 469
31
Pt. Parmanand Katara v. Union of India ; (2) (1990) 1 SCC 520

21
3. There was no professional negligence
The assurance of a professional subsists that he would be exercising his skill with reasonable
competence, wherein he would be held liable for the negligence of either not possessing the requisite
skills which he professed to have possessed or not exercising with reasonable competence in the
given circumstances. A professional man owes to his clients a duty in tort as well as in contract to
exercise reasonable care in giving advice or performing services. Though doctors can be found
guilty only if he falls short of the standard of reasonable skilful medical practice.32
In the case of K. Sadanand v. Lisie Hospital,33 negligence was alleged as the patient became
unconscious till death after surgery due to failure in proper administration of anaesthesia, wherein
the complainant though failed to prove as to what the anaesthetic was not supposed to do, thereby
no negligence was imposed by the court. In the given case also error in treatment can’t be proved
as was in Neha’s case, in her case according to petitioner there was error in treatment with
antibiotics which can’t be proved because in bacterial infections the best and most effective
medicine is polypod. Prescription of medications and for certain ailments vary from doctor to
doctor so the argument given by the petitioner that he had consulted various U.S doctors can be
discommended.

30
SSC
33
K. Sadanand v. Lisie Hospital I (2006) CPJ 24 NC

22
 PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsels on behalf of the Respondents humbly pray before this
Hon’ble Court that it may be pleased to adjudge and declare that:

1. The Appeal is dismissed.

Or pass any other order that the court may deem fit in the light of equity, justice
and good conscience and for this Act of kindness of Your Lordships the
Respondents shall as duty bound ever pray.

Sd/-
Counsels for Respondents.