2ND NATIONAL MOOT COURT COMPETITION, 2020

TEAM CODE: TC2

IN THE HON’BLE HIGH COURT

CRIMINAL APPELLATE JURISDICTION

IN THE MATTER OF

DR. RIDHI SHARMA APPELLANT

V.

MR. PATHAK RESPONDENT

WRITTEN SUBMISSION ON THE BEHALF OF RESPONDENT

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TABLE OF CONTENTS
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LIST OF ABBREVIATIONS
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INDEX OF AUTHORITIES
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STATEMENT OF JURISDICTION
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STATEMENT OF FACTS

Dr. Ridhi Sharma, a 35 years old geneticist worked in New Life Hospital, Delhi. Mrs. Kalpna
Pathak, 42 years old lady patient of same hospital from past 12 years.

She was suffering from a life-threatening syndrome called ROHHAD. Her family spent a lot of
money on her treatment but as the disease was incurable so she was left in Delhi for further
treatment. Her family only visited her when needed as travels were expenses. So, they
appointed Gayatri, 18 years old caretaker for her.

Living in hospital from past 12 months almost broke Mrs. Pathak. She used to be a lively
person but now her life became monotonous.

Dr. Ridhi came to know about Mrs. Pathak’s condition through gayatri. She followed her
research and found out that precise cause of ROHHAD is reportedly unknown but experts
however suspect it as genetic disorder.

Under a project named ‘Discover Relief’ she found out that Elixir Labs; the same company
which manufactured Mrs. Pathak medicines have claimed that drug they were marketing for
Huntington’s disease has also cured a considerable percentage of Rhodes disease pateints as
well. However, the chance of treatment being fatal is expected to be 30 percent at her age.

She decided to bring this upto Mrs. Pathak as an option and tell her about the odds to which she
consented. Dr. Ridhi wrote a detailed application mentioning the Medical history of Mrs Pathak
in order to get that medicine but her application got rejected by Mr. Naveen Mathur stating that
the medicine has not been approved by Food and Drug Administration and is yet being
experimented.

Dr. Ridhi stole the sample of drug sent by the lab to their hospital for the patients of
Huntington’s disease. Dr. Ridhi discharged Mrs. Pathak after few days even without keeping
her under observation.

Mrs. Pathak after few days of discharge on 5th may 2019 contacted Dr. Ridhi but on 7th may
Mrs. Pathak died.

. The husband of Mrs. Pathak sued the hospital under section 304A of Medical Negligence. The
hospital held a meeting of hospital administration on 15th may 2019 against the action of Dr.
Ridhi consisting of 7 jury members which included 6 senior doctors and Mr. Mathur asked her
to explain her actions.

Dr Ridhi pleaded not guilty on the pretext of acting in a good faith after receiving the consent of
patient which was corroborated by Gayatri. After the hearing 5 members including Mr Mathur
voted against Dr Ridhi overseeing the hospital’s best interest, consequently she lost her reputed
job at New Life Hospital, Delhi.
Moreover, the licence of Dr. Ridhi was suspended by Medical Council of India for 7 years on
25th may 2019.

The trial court on 26th December 2019 convicted Dr. Ridhi under section 304A IPC read with
section 90 and section 337 of IPC and approved the suspension of her licence.
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ISSUES RAISED

1. WHETHER OR NOT THE STANCE OF THE APPEAL IS MAINTAINABLE IN

COURT OF LAW?
2. WHETHER OR NOT THE ACT OF DR. RIDHI SHARMA AMOUNTS TO
NEGLIGENCE ON HER PART?
3. WHETHER OR NOT THE CONSTITUTION OF THE HOSPITAL
ADMINISTRATION AS WELL AS ITS DECISIONS IS IN ACCORDANCE WITH
THE LAW?
4. WHETHER OR NOT THE TRIAL COURT HAS ERRED IN FINDING DR. RIDHI
SHARMA GUILTY OF MEDICAL NEGLIGENCE OF SECTION 304A OF IPC?
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SUMMARY OF ARGUMENTS
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ADVANCE ARGUMENTS

1. WHETHER OR NOT THE STANCE OF THE APPEAL IS MAINTAINABLE IN

COURT OF LAW?

The stance of appeal isn’t maintainable according to law.

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2. WHETHER OR NOT THE ACT OF DR. RIDHI SHARMA AMOUNTS TO

NEGLIGENCE ON HER PART?

 It is humbly submitted that the act of Dr. Ridhi Sharma amounts to negligence as she
knows that chances of treatment being fatal is expected to be 30 percent.

Section 304 provides punishment for culpable homicide wherein stated- “Whoever
commits culpable homicide not amounting to murder shall be imprisonment for a term
which may extend to ten years or with fine, or with both, if the act is done with the
knowledge that it is likely to cause death.”

In Poonam Verma vs. Ashwin Patel and Ors. (1996) 4 SCC 322, the
Supreme Court held that a person who does not have knowledge of a
particular medicine but practices in that system is a quack. Where a
person is guilty of negligence per se, no further proof is needed.

In the case of, Dr. Laxman Balkrishan Joshi vs. Dr. Trimbak Bapu
Godbole and Anr., the Supreme Court held that that a doctor has
certain aforesaid duties and a breach of any of those duties can make
him liable for medical negligence. A doctor is required to exercise a
reasonable degree of care that is set for this profession.

The Apex Court in the recent case of Alister Anthony Pareira v. State
of Maharashtra, while explaining the said section held that pertaining
to the levying of punishment u/s 304 Part II, the prosecution need to
prove the death of person caused by the act of the accused having
knowledge that such act was likely to cause death.

Further, in another case of State Tr. P.S. Lodhi Colony New Delhi v.
Sanjeev Nanda, Supreme Court reiterated the above reasoning as to
the knowledge of the act likely to cause death of the person in
question. In the instant case Dr. ridhi sharma already know that the
chances of the drug being fatal is expected to be 30% still she
provided her the medicine.

The Court went on to draw the distinction between knowledge and

intention in the case of Basdev v. The State of Pepsu, stating that in
many cases the intention and knowledge merge into each other and
mean the same thing more or less, whereby intention can be presumed
 from knowledge. Though demarcation between the two is thin but not
difficult to perceive that they connote different things.

In case of Riyazuddin v. State of NCT of Delhi, the Delhi High Court

relying on the above distinction, convicted the doctor u/s 304, Part II.
The court held that though Riyazuddin may have no intention to
commit the death of the deceased but the knowledge that the act was
likely to cause death was clearly attributable, thereby convicted for
offence punishable under Section 304 IPC.

In the present case, Dr. ridhi stole the medicine sample and despite knowing that the
medicine can be deadly she gave it to Mrs. Pathak. She was negligent on her part and
shall be punished under section 304a of IPC.
 3. WHETHER OR NOT THE CONSTITUTION OF THE HOSPITAL
ADMINISTRATION AS WELL AS ITS DECISIONS IS IN ACCORDANCE
WITH THE LAW?

Dr. Ridhi Sharma stole the drug sample and provided unapproved and wrong drug to
Mrs. Pathak which is against the hospital norms and rules.

According to Medical Council of India, it is mentioned in chapter 8

(8.2) wherein stated, “It is made clear that any complaint with regard to
professional misconduct can be brought before the appropriate Medical
Council for Disciplinary action. Upon receipt of any complaint of
professional misconduct, the appropriate Medical Council would hold
an enquiry and give opportunity to the registered medical practitioner
to be heard in person or by pleader. If the medical practitioner is found
to be guilty of committing professional misconduct, the appropriate
Medical Council may award such punishment as deemed necessary or
may direct the removal altogether or for a specified period, from the
register of the name of the delinquent registered practitioner. Deletion
from the Register shall be widely publicized in local press as well as in
the publications of different Medical Associations/ Societies/Bodies.

In Juggankhan vs State of M.P,

the accused, a registered homeopathic administrated 24 drops

stramonium and relief of dhatura to the patient suffering from Guinea
Warm. The accused had not studied the effect of such substances
being administrated to the human being, the poisonous content of
believe of the dhatura, however, not satisfactorily established by the
proseccusion. This court exonerated the accused of the charged u/s
302 IPC. However, on a finding that the stramonium & dhatura leaf
were poisonous & in no system of medicines expect perhaps
Ayurvedic System, the dhatura leaves were given as a cure for Guinea
Warm and the act of accused was held to be a rashed and negligent
act. In that background, the interference of the accused being guilty of
rash and negligent act as drawn against him. The court observed in our
opinion the principle which emerges is that a doctor who administered
a medicine known to or used in a particular branch of medical
profession employed declares that he has knowledge of that branch of
science and if he does not, infact, posses that the knowledge, he prima
facie acting with the rashness or negligence.

In the present case Dr Ridhi also provided wrong medication due to which a patient lost her life.
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4. WHETHER OR NOT THE TRIAL COURT HAS ERRED IN FINDING DR.

RIDHI SHARMA GUILTY OF MEDICAL NEGLIGENCE OF SECTION 304A
OF IPC?

The decision of trial court is in accordance with the law as the acts done by dr. ridhi amounts to
medical negligence.

Section 304 provides punishment for culpable homicide wherein stated- “Whoever
commits culpable homicide not amounting to murder shall be imprisonment for a term
which may extend to ten years or with fine, or with both, if the act is done with the
knowledge that it is likely to cause death.”

Dr. Ridhi has given wrong medicine to Mrs. Pathak knowing that it is likely to cause
death so her act falls under section 304A of IPC and is liable for punishment for the
same.

In a report dated march 30, 2018 in times of India it is published that 2 appolo docs
suspended over negligence death. In the report it is stated that the west Bengal medical
council suspended the practicing licenses of two Apollo Gleneagles hospitals doctors,
charging them with medical negligence causing the death of 30-year-old accident victim
sanjay roy last February. The council has also charged the hospital with “inhuman
behaviour”