Simran Walia
1429
IN THE DISTRICT CONSUMER REDRESSAL FORUM
Consumer Complaint Case No. __________ of 2018
IN THE MATTER OF:
RAVI
Complainant
v.
DR. RAM KISHORE
Other party
MEMORIAL ON BEHALF OF THE COMPLAINANT
Table of Contents
TABLE OF CONTENTS
LIST OF ABBREVIATIONS ..................................................................................................X
iX
INDEX OF AUTHORITIES .................................................................................................X
ivX
STATEMENT OF JURISDICTION ....................................................................................X
ivX
STATEMENT OF FACTS ......................................................................................................X
vX
ISSUES RAISED ....................................................................................................................X
viX
WHETHER THERE IS NEGLIGENCE ON PART OF DR. RAM KISHORE? Error!
Bookmark not defined.
WHETHER THE PRINCIPLE RES IPSA LOQUITOR IS APPLICABLE? Error!
Bookmark not defined.
SUMMARY OF ARGUMENTS ..........................................................................................X
viiX
ARGUMENTS ADVANCED ..............................................................................................X
viiiX
CONTENTION 1: WHETHER THERE IS NEGLIGENCE ON PART OF DR. RAMX
KISHORE? ................................................................................................................X
viii- xivX
(I.) NEGLIGENCE PER SE .........................................................................................
CONTENTION II: WHETHER THE PRINCIPLE RES IPSA LOQUITOR ISX
APPLICABLE? ...........................................................................................................X
xv-xviiiX
PRAYER ...............................................................................................................................X
viiiX
MEMORIAL ON BEHALF OF THE COMPLAINANT
List of Abbreviations
LIST OF ABBREVIATIONS
Anr.
Another
AIR
All India Reporter
Cri
Criminal
CrLJ
Criminal Law Journal
Ed.
Edition
Govt.
Government
HC
High Court
Hon’ble
Honorable
IPC
Indian Penal Code
Ors.
Others
SC
Supreme Court
SCC
Supreme Court Cases
U.P.
Uttar Pradesh
u/s
Under section
v.
Versus
MEMORIAL ON BEHALF OF THE COMPLAINANT
iii
Index of Authorities
INDEX OF AUTHORITIES
STATUTES
1. The Consumer Protection Act, 1986 (Act LXVIII of 1986)
BOOKS AND REPORTS
Modi, J. P, A Textbook of Medical Jurisprudence & Toxicology, (25th Ed., Lexis Nexis
Butterworths, 2016)
Rao, YV, Commentary on the Consumer Protection Act, 1986, (4th Ed., Thomson
Reuters, 2017)
Ratanlal and Dhirajlal, The Law of Torts, (26th Ed., Lexis Nexis Butterworths, 2015)
LEXICONS
Aiyar, P Ramanatha, The Law Lexicon, (2nd Ed. 2006)
Garner, Black’s Law Dictionary, (9th Ed. Thomas & West, U.S.A 1990)
WEBSITES
http://www.findlaw.com
http://www.judis.nic.in
http://www.manupatra.co.in/AdvancedLegalSearch.aspx
http://www.scconline.com
TABLE OF CASES
Indian Medical Association vs. B.P. Shantha, 1995 6 SCC 651 X
Parmanand Kataria vs. Union of India, (1989) 4 SCC 286
Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr, AIR 1969 SC 128 X
A.S. Mittal vs. State of U. P, AIR 1989 SC 1570 X
MEMORIAL ON BEHALF OF THE COMPLAINANT
iii
Index of Authorities
Poonam Verma vs. Ashwin Patel and Ors, 1996 4 SCC 322
Caparo Industries Plc v. Dickman, (1990) 1 All ER 568
Jeet Kumari Poddar v. Chittagang Engineering and Electrical Supply Co. Ltd.,
(1946) ILR 2 Cal 433
Madhya Pradesh Road Transport Corporation v. Basanti Bai, 1971 ACJ 328
United India Insurance Co. Ltd. v. Union of India, (2011) 4 ALD 465.
Sutradhar v. Natural Environment Research Council, (2006) 4 All ER 490
State of Maharashtra v. Dhanajay Bhagat, (2010) 2 AIR Bom R 583
Blyth v. Birmingham Waterworks Company, (1856) 11Ex 781, p. 457
Byrne v. Boadle 159 Eng.Rep. 299
Spring Meadows Hospital v. Harjol Ahluwalia (1998) 4 SCC 39
MEMORIAL ON BEHALF OF THE COMPLAINANT
iv
Statement of Jurisdiction
STATEMENT OF JURISDICTION
The Hon’ble District Consumer Forum of Mohali has the jurisdiction in the present matter
under the following sections of the Consumer Protection Act, 1986:
§. 2(1) (d) which defines who is consumer and §. 2 (1) (o) define what is service. The
definition of service is not an exhaustive one, so if health service is not specifically
mentioned in the provision it has been interpreted that the provision includes such services,
in spite of existence of professional regulatory bodies.
Medical Services are treated as in ambit of “services” under §. 2(1) (o) of the Act.
It is not contract of personal service as there is absence of master servant relationship.
Contract of service in §. 2(1) (o) cannot be confined to contracts for employment of
domestic servants only.
3. Deficiency of service under §. 2(1)(g) of the Act provides that, “deficiency” means any fault,
imperfection, shortcoming or inadequacy in the quality, nature and manner of performance
which is required to be maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract
or otherwise in relation to any service.
4. Jurisdiction of the District Forum would arise u/s 11 of the Act, as the parties reside there &
the place of business is also falls under the territorial limits of the said District of Mohali.
MEMORIAL ON BEHALF OF THE COMPLAINANT
v
Statement of Facts
STATEMENT OF FACTS
It is respectfully Showeth,
1. That Dr. R Kishore was a registered Ayurveda Practitioner claiming to have treated
Paralysis advertised in the Tribune with success stories of people treated.
2. That in pursuance of the Advertisement, Smt. Sushila, 73 yrs. who was also suffering
from Coronary Heart Disease, had heart attack twice had approached the clinic.
That Dr. Kishore agreed to see her & assured her of getting cured but was told to take
medicines for about 6 months.
That the intake of medication was explained by the junior & two capsules of medication
were to be taken with two glasses of milk & one teaspoon of ghee in each. It was also
told that she should take one litre of milk in any form every day.
That she was also told to have eggs and low-calorie paneer made from skimmed milk as the
medication worked differently on different people depending upon their protein & fat diet.
That after Dr. Kishore was apprised of the patient’s heart condition by her son, he stated that
the skimmed milk will not harm & asked Ravi to take her for regular check-up for coronary
disease.
That Smt. Sushila was asked to come again after two months.
That Smt. Sushila took the medicines as prescribed & after 15 days she started feeling
restless & heaviness in her heart along with high BP.
That Ravi called Dr. Kishore & apprised him of her state. He was told to take the
medication for a week & get back to him.
That the very next afternoon, Smt. Sushila complained of breathlessness with a lot of
pain in the left arm.
MEMORIAL ON BEHALF OF THE COMPLAINANT
vi
Statement of Facts
That she was taken to the hospital where Ravi was told that she had a massive heart attack.
That as a result of her death, Ravi filed a suit against Dr. Kishore for damages and
claimed that his mother died because of negligent act of Dr. Kishore.
MEMORIAL ON BEHALF OF THE COMPLAINANT
vi
Issues Raised
ISSUES RAISED
1. WHETHER THERE IS NEGLIGENCE ON PART OF DR. RAM KISHORE?
2. WHETHER THE PRINCIPLE RES IPSA LOQUITOR IS APPLICABLE?
MEMORIAL ON BEHALF OF THE COMPLAINANT
vii
Summary of Arguments
SUMMARY OF ARGUMENTS
WHETHER THERE IS NEGLIGENCE ON PART OF DR. RAM KISORE?
According to the facts of the case it is clear that the doctor acted negligently. Ravi told
Dr. Kishore about the heard problem that his mother was facing but even after that he
accepted it and said that he will take care of it.
It was the duty of the doctor to inform the patient about the risks that were involved with
the treatment. Dr. Kishore was an Ayurvedic doctor who specialised in treating paralysis
gave his willingness to take care of the heart problem and said that this treatment would
not affect the patient’s heart.
Ravi called the doctor to inform him that the treatment was affecting the health of the
patient and that Ravi’s mother was having high B.P. along with other symptoms of a
heart attack still Dr. Kishore did not pay much attention to it and told Ravi to continue
the medication for another week.
WHETHER THE PRINCIPLE RES IPSA LOQUITOR IS APPLICABLE?
The principle is applicable in the present condition as it describes that the thing speaks for
itself and that the doctor had to act with care and caution. Dr. Kishore did not act with
reasonable care as while he was prescribing the medicine with the consumption of ghee
along with it the son of the patient clearly mentioned that the patient was suffering from a
heart disease. But the Doctor said that he will take care of it knowing that his specialization
is in treating paralysis.
After the condition of the patient got worse the son of the patient called and told the doctor
that she had symptoms of heart attack the doctor did not react much to it and advised the
continuation of the medication for another week.
The doctor had to be cautious before prescribing the medicine which he clearly was not and the
situation itself explains how the doctor is liable for acting negligently.
MEMORIAL ON BEHALF OF THE COMPLAINANT
viii
Arguments Advanced
ARGUMENTS ADVANCED
CONTENTION 1: WHETHER THERE IS NEGLIGENCE ON PART OF DR. RAM
KISHORE?
It is humbly submitted before the Hon’ble Court that the accused are not guilty of the
offence of Medical negligence-
Negligence is simply the failure to exercise due care. The three ingredients of
negligence are as follows:
The defendant owes a duty of care to the plaintiff.
The defendant has breached this duty of care.
The plaintiff has suffered an injury due to this breach.
1
The decision of this Court in Indian Medical Association vs. V.P. Shantha has settled the
dispute regarding applicability of the Act to persons engaged in medical profession either as
private practitioners or as Government Doctors working in Hospitals or Govt. Dispensaries. It is
also settled that a patient who is a 'consumer within the meaning of the Act has to be awarded
compensation for loss or injury suffered by him due to negligence of the Doctor by applying the
same tests as are applied in an action for damages for negligence.X
The judgment in this case defined medical care as a “service” that was covered under
the Act, and also clarified that a person seeking medical attention may be considered a
consumer if certain criteria were met.
2
The Hon’ble Supreme Court of India in Kusum Sharma v. Batra Hospital said that
negligence is the breach of a duty 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.
1995 6 SCC 651
(2010) 3 SCC 480
MEMORIAL ON BEHALF OF THE COMPLAINANT
ix
Arguments Advanced
According to the facts of the case it is clear that the doctor acted negligently. Ravi told
Dr. Kishore about the heard problem that his mother was facing but even after that he
accepted it and said that he will take care of it.
It was the duty of the doctor to inform the patient about the risks that were involved with the
treatment. Dr. Kishore was an Ayurvedic doctor who specialised in treating paralysis
gave his willingness to take care of the heart problem and said that this treatment would
not affect the patient’s heart.
Ravi called the doctor to inform him that the treatment was affecting the health of the
patient and that Ravi’s mother was having high B.P. along with other symptoms of a
heart attack still Dr. Kishore did not pay much attention to it and told Ravi to continue
the medication for another week.
1. When does a duty arise?
It is well known that a doctor owes a duty of care to his patient. This duty can either be a
contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-
patient relationship is not established, the courts have imposed a duty upon the doctor. In the
words of the Supreme Court “every doctor, at the governmental hospital or elsewhere, has a
professional obligation to extend his services with due expertise for protecting life” Parmanand
3
Kataria vs. Union of India . These cases are however, clearly restricted to situations where
there is danger to the life of the person. Impliedly, therefore, in other circumstances the
doctor does not owe a duty.
2. What is the duty owed?
4
This Court in Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr , laid
down that a Doctor when consulted by a patient owes him certain duties, namely,X
(a) a duty of care in deciding whether to undertake the case;
(1989) 4 SCC 286
AIR 1969 SC 128
MEMORIAL ON BEHALF OF THE COMPLAINANT
x
Arguments Advanced
a duty of care in deciding what treatment to give; and
a duty of care in the administration of that treatment. A breach of any of these duties
gives a cause of action for negligence to the patient.
5
The principles were reiterated in A.S. Mittal vs. State of U. P ., in which wide extracts
from that judgment were made and approved.X
6
The existence of duty of care is an essential before a person can be held liable in negligence. In
order to determine whether there is a duty of care, most of the recent cases rely on the basic test
7
established by the judgment of Caparo Industries Plc v. Dickman . According to the judgment of
Caparo, a duty of care may be imposed on, if the following three requirements are satisfied.
Certain conditions must be satisfied before liability can be considered. The person who is
accused must have committed an act of omission or commission; this act must have been in
breach of the person’s duty; and this must have caused harm to the injured person.
The duty owed by a doctor towards his patient, in the words of the Supreme Court is to
“bring to his task a reasonable degree of skill and knowledge” and to exercise “a
reasonable degree of care” (Laxman vs. Trimbak).
2.1 Defendant, bearing in mind the kind of harm involved, must be able to foresee the
damage.
First requirement is satisfied if it must be reasonably foreseeable for defendant to occur
the damage on plaintiff. There are two points to consider whether defendant must be
able to foresee, bearing the kind of harm involved. For establishing the reasonable
foreseeability, two elements are to be satisfied:
AIR 1989 SC 1570
Jeet Kumari Poddar v. Chittagang Engineering and Electrical Supply Co. Ltd., (1946) ILR 2 Cal 433; Madhaya
Pradesh Road Transport Corporation v. Basanti Bai, 1971 ACJ 328; United India Insurance Co. Ltd. v.
Union of India, (2011) 4 ALD 465.
7
(1990) 1 All ER 568
MEMORIAL ON BEHALF OF THE COMPLAINANT
xi
Arguments Advanced
Defendant must foresee that the damage is to be caused to a particular complainant rather than just
to people in general. In other words, defendant must foresee that complainant is part of a category
8
of people who might be affected by the conducts of defendant .
The duty must relate to a particular kind of harm which defendant could reasonably foresee
9
as arising from its actions.
It is evident from the facts of the case that the defendant failed to fulfil the above-mentioned
requirements. He knew the risk that was posed by the method of administration of the
medication yet he went ahead with the same. This action of his is the primary reason for the
heart attack and the consequent death of the complainant’s mother.
2.2 There must be a Relationship of Proximately between the parties.
Second requirement of Caparo test is the existence of proximate relationship between the
parties. In many cases, proximity and foreseeability are treated as coextensive and even
interdependent. Thus, when defendant must be able to foresee the damage suffered by
plaintiff, the proximity is very likely to be satisfied. In addition, proximity means “a measure
10
of control over and responsibility for the potentially dangerous situation” .
Thus, duty of care is owed only to persons who are closely and directly affected by one’s act that it is
reasonable for one of them in contemplation. In the present case also, the defendant provided
services to the complainant. Therefore, there existed between the complainant and the defendant
such relation as it rendered just and reasonable that the liability in negligence may be imposed.
As between the defendant and the plaintiff there is sufficient relationship of proximity
such that in reasonable contemplation of the former, carelessness on its part caused
11
damage to the latter, in which prima facie duty of care arises.
2.3 It must be Fair, Just and Reasonable in the circumstances for a duty of case to be imposed
on Defendant.
Haley v. London Electricity Board, (1964)3 All ER 185
Supra 4
Sutradhar v. Natural Environment Research Council, (2006) 4 All ER 490
State of Maharashtra v. Dhanajay Bhagat, (2010) 2 AIR Bom R 583
MEMORIAL ON BEHALF OF THE COMPLAINANT
xii
Arguments Advanced
Third requirement of Caparo test is that it was fair, just, and reasonable that Defendant owed a duty
of care. However, this requirement usually overlaps with the previous two. The relationship between
the complainant and the defendant is such that in justice and fairness that defendant like
a reasonable man ought to have kept the in contemplation while doing the act of which
complaint is made.
Breach of Duty
In this case, the complainant believes that the defendant breached a duty of care which he
owed to the plaintiff by causing the death of the complainant’s mother. It is to be seen whether
the defendant omitted to do something which a reasonable and prudent man, guided by those
12
considerations which ordinarily regulate the conduct of human affairs would have done.
In other words, defendant intended to cause damage to complainant which an ordinary person
should have avoided. Defendant did not satisfy the standard of not only careful person but also
an ordinary person. Therefore, defendant breached a duty of care which it owed to complainant.
Consequent Damage
In this case, complainant believes that the conduct of defendant has caused damages to him.
For making the defendant liable, it must be shown that the particular acts of the defendant
constituted the cause of the damages suffered by complainant. Two requirements need to be
satisfied to establish the existence of causation. Firstly, the conduct of the defendant was the
cause in fact. Secondly, defendant is responsible for the probable consequence.
3. Reasonable degree of care
Reasonable degree of care and skill means that the degree of care and competence that an
“ordinary competent member of the profession who professes to have those skills would exercise in
the circumstance in question.” At this stage, it may be necessary to note the distinction
12
Blyth v. Birmingham Waterworks Company, (1856) 11Ex 781, p. 457
MEMORIAL ON BEHALF OF THE COMPLAINANT
xiii
Arguments Advanced
between the standard of care and the degree of care. The standard of care is a constant and
remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable
and need not necessarily conform to the highest degree of care or the lowest degree of care
possible. The degree of care is a variable and depends on the circumstance. It is used to refer
to what actually amounts to reasonableness in a given situation.
Thus, though the same standard of care is expected from a generalist and a specialist,
the degree of care would be different. In other words, both are expected to take
reasonable care but what amounts to reasonable care with regard to the specialist
differs from what amount of reasonable care is standard for the generalist. In fact, the
law expects the specialist to exercise the ordinary skill of this specialty and not of any
ordinary doctor. Though the courts have accepted the need to impose a higher degree
of duty on a specialist, they have refused to lower it in the case of a novice.
Another question that arises is with regard to the knowledge that is expected from a doctor.
Should it include the latest developments in the field, hence require constant updating or is
it enough to follow what has been traditionally followed? It has been recognized by the
courts that what amounts to reasonableness changes with time. The standard, as stated
clearly herein before requires that the doctor possess reasonable knowledge. Hence, we
can conclude that a doctor has to constantly update his knowledge to meet the standard
expected of him. Furthermore, since only reasonable knowledge is required, it may not be
necessary for him to be aware of all the developments that have taken place.
We have, until now, examined the duty of a doctor in so far as treating a patient is concerned or
in diagnosing the ailment. Doctors are, however, imposed with a duty to take the consent of a
person/patient before performing acts like surgical operations and in some cases treatment as
well. To summarize, any act that requires contact with the patient has to be consented by the
patient. A duty of care is imposed on the doctors in taking the patient's consent. Naturally, a
question arises as to what is this duty of care. As per the judicial pronouncements, this duty is to
disclose all such information as would be relevant or necessary for the patient to decide.
Therefore, the duty does not extend to disclosing all possible information in this regard.
Furthermore, this duty does not extend to warning a patient of all the normal attendant risks of
MEMORIAL ON BEHALF OF THE COMPLAINANT
xiv
Arguments Advanced
an operation. The standard of care required of a doctor while obtaining consent is again
that of a reasonable doctor, as in other cases.
I.) NEGLIGENCE PER SE
While deliberating on the absence of basic qualifications of a homeopathic doctor to practice
13
allopathy in Poonam Verma vs. Ashwin Patel and Ors. the Supreme Court held that a
person who does not have knowledge of a particular system of medicine but practices in that
system is a quack. Where a person is guilty of negligence per se, no further proof is needed.
13
1996 4 SCC 322
MEMORIAL ON BEHALF OF THE COMPLAINANT
xv
Arguments Advanced
CONTENTION II: WHETHER THE PRINCIPLE RES IPSA LOQUITOR IS
APPLICABLE
The principle is applicable in the present condition as it describes that the thing speaks for itself
and that the doctor had to act with care and caution. Dr. Kishore did not act with reasonable care
as while he was prescribing the medicine with the consumption of ghee along with it the son of
the patient clearly mentioned that the patient was suffering from a heart disease. But the Doctor
said that he will take care of it knowing that his specialization is in treating paralysis.
After the condition of the patient got worse the son of the patient called and told the
doctor that she had symptoms of heart attack the doctor did not react much to it and
advised the continuation of the medication for another week.
The doctor had to be cautious before prescribing the medicine which he clearly was not
and the situation itself explains how the doctor is liable for acting negligently.
The principle of res ipsa loquitur comes into operation only when there is proof that the
occurrence was unexpected, that the accident could not have happened without
negligence and lapses on the part of the doctor, and that the circumstances conclusively
14
show that the doctor and not any other person was negligent
The liability of a doctor arises not when the patient has suffered any injury, but when the injury
has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In
other words, the doctor is not liable for every injury suffered by a patient. He is liable for only
those that are a consequence of a breach of his duty. Hence, once the existence of a duty has
been established, the plaintiff must still prove the breach of duty and the causation. In case there
is no breach or the breach did not cause the damage, the doctor will not be liable. In order to
show the breach of duty, the burden on the plaintiff would be to first show what is considered as
reasonable under those circumstances and then that the conduct of the doctor was below this
degree. It must be noted that it is not sufficient to prove a breach, to merely show that there
exists a body of opinion which goes against the practice/conduct of the doctor.
14
Dr Janak Kantimathi Nathan vs Murlidhar Eknath Masane 2002 (2) CPR 138
MEMORIAL ON BEHALF OF THE COMPLAINANT
xvi
Arguments Advanced
With regard to causation, the court has held that it must be shown that of all the possible
reasons for the injury, the breach of duty of the doctor was the most probable cause. It is not
sufficient to show that the breach of duty is merely one of the probable causes. Hence, if the
possible causes of an injury are the negligence of a third party, an accident, or a breach of duty
care of the doctor, then it must be established that the breach of duty of care of the doctor was
the most probable cause of the injury to discharge the burden of proof on the plaintiff.
Normally, the liability arises only when the plaintiff is able to discharge the burden on
him of proving negligence. However, in some cases like a swab left over the abdomen
of a patient or the leg amputated instead of being put in a cast to treat the fracture, the
principle of ‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for itself’) might come
into play. The following are the necessary conditions of this principle.
Complete control rests with the doctor.
It is the general experience of mankind that the accident in question does not happen without
negligence. This principle is often misunderstood as a rule of evidence, which it is not. It is a
principle in the law of torts. When this principle is applied, the burden is on the doctor/defendant
to explain how the incident could have occurred without negligence. In the absence of any such
explanation, liability of the doctor arises.
Normally, a doctor is held liable for only his acts (other than cases of vicarious liability).
However, in some cases, a doctor can be held liable for the acts of another person which
injures the patient. The need for such a liability may arise when the person committing the
act may not owe a duty of care at all to the patient or that in committing the act he has not
breached any duty. A typical example of a case where such a situation may arise is in the
case of a surgery. If a junior doctor is involved as part of the team, then his duty, as far as
the exercise of the specialist skill is concerned, is to seek the advice or help of a senior
doctor. He will have discharged his duty once he does this and will not be liable even if he
actually commits the act which causes the injury. In such a case, it is the duty of the senior
doctor to have advised him properly. If he did not do so, then he would be the one
responsible for the injury caused to the patient, though he did not commit the act.
MEMORIAL ON BEHALF OF THE COMPLAINANT
xvii
Arguments Advanced
The principle of res ipsa loquitur was first put forward by Baron Pollock in Byrne v.
15
Boadle , an 1863 English case. Byrne was struck by a barrel of flour falling from a
second-story window. The court's presumption was that a barrel of flour falling out of a
second-story window is itself sufficient evidence of negligence.
The patient need not prove negligence in case where the rule of res ipsa loquitur
applies, which means "the thing or fact speaks for itself". The rule is applied when the
following conditions are satisfied:
that in the absence of negligence the injury would not have occurred ordinarily;
that the doctor had exclusive control over the injury producing instrument or treatment;
that the patient was 'not guilty of contributory negligence.
Some of the examples are: (1) Failure to give anti-tetanic serum in cases of injury causing tetanus.
(2) Burns from application of hot water bottles or from X-ray therapy. (3) Prescribing an
overdose of medicine producing ill-effects. (4) Giving poisonous medicine carelessly. (5)
Breaking of needles, (6) Blood transfusion misadventure. (7) Failure to remove the
swabs during operation which may lead to complications or cause death. (8) Loss of
16
use of hand due to prolonged splinting.
17
In Dr Laxman Balakrishna Joshi v. Dr Trimbak Bapu Godbole & Anr. it was held that a person
who holds himself out ready to give medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes
him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in
deciding what treatment to be given or a duty of care in the administration of that treatment. A
breach of any of those duties gives a right of action for negligence to the patient.
159 Eng.Rep. 299
“MEDICAL NEGLIGENCE & COMPENSATION,”
http://shodhganga.inflibnet.ac.in/bitstream/10603/130522/13/13_chapter%206.pdf, visited on 19 August, 2018
AIR 1969 SC, 128
MEMORIAL ON BEHALF OF THE COMPLAINANT
xviii
Arguments Advanced
18
In Spring Meadows Hospital v. Harjol Ahluwalia the Court was dealing with the
case of medical negligence and held that in cases of gross medical negligence the
principle of res ipsa loquitur can be applied.
The matter at hand and the facts are clear and showcase how grossly negligent that actions
of the defendant were. The medication and procedure for their administration prescribed by
the defendant were the sole cause for the death of the plaintiff’s mother. He was clearly
unaffected by the prevailing heart condition of the patient, not realizing that due to the
existence of the same, this case posed high risks and required to be dealt with the utmost
care and precaution. He treated the patient in a regular manner and furthermore, required
her to consume products that posed a risk to her health due to her heart condition.
Thus, it is the humble submission that the negligence of the defendant is further established
by the application of the principle of res ipsa loquitor as the facts are clearly indicative of the
lack of due reasonable care that was required to be tendered to the patient by the
defendant which ultimately led to her demise due to a massive heart attack.
18
(1998) 4 SCC 39
MEMORIAL ON BEHALF OF THE COMPLAINANT
viii
Prayer
PRAYER
In the light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully prayed before the Hon'ble Court that it may graciously be
pleased to adjudge and declare that:
That there was negligence on part of Dr. Kishore
That there be an order for damages of 10 Lakhs in favor of the complainant.
AND/OR
Pass any other appropriate order, which this Honorable Court may deem fit in light of
Justice, Equity and Good Conscience.
And for this act of Kindness, the Counsel for complainant as in duty bound shall forever pray.
Place: Mohali
Dated: 21 August 2018
Sd-
Counsel for complainant
MEMORIAL ON BEHALF OF THE COMPLAINANT
