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TEAM CODE- P04

FRESHER’S MOOT COURT COMPETITION, 2017

18TH NOVEMBER, 2017

BEFORE THE HON’BLE DISTRICT CONSUMER FORUM, PATLIPUTRA

VIKASH KAPOOR (PLAINTIFF)

Vs.

DR. ANAND RASTOGI (DEFENDANT)

ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HON’BLE

DISTRICT CONSUMER FORUM OF PATLIPURA

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MEMORIAL FOR THE PLAINTIFF – VIKASH KAPOOR

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TABLE OF CONTENTS

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INDEX OF AUTHORITIES

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STATEMENT OF JURISDICTION

THE COUNSELS REPRESENTING THE PLAINTIFFS HAVE ENDORSED THEIR

PLEADINGS BEFORE THE HON’BLE DISTRICT CONSUMER FORUM,
PATLIPUTRA UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT,
1986. THE PLAINTIFFS FURTHER SUBMIT THAT THE HON’BLE DISCTRICT
CONSUMER FORUM HAS JURISDICTION TO DEAL WITH THE SUBJECT MATTER
OF THE SUIT AS THE SUIT PROPERTY IS SITUATED WITHIN THE JURISDICTION
OF THE HON’BLE DISTRICT CONSUMER FORUM, PATLIPUTRA.

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STATEMENT OF FACTS

I
Sindhu Kapoor w/o Vikash Kapoor experienced mild abdominal pain and was taken to
nursing home of Dr. Anand Rastogi, a renowned medical practitioner holding a MBBS
degree from DIIMS, the rank one medical college of the Vihar. Who examined her and
advised some tests, the results of which did not show any abnormality to him. He then
prescribed some medicines and discharged Sindhu Kapoor.

II
Subsequently after ten days, Sindhu Kapoor again complained of abdominal pain and was
rushed to Dr. Anand, on examining her, he again advised some tests. Test results led to the
conclusion that she was suffering from severe acidity. She was administered some medicines
and was discharged after two days.

III
After these two instances of abdominal pain, Mrs. Kapoor again experienced the abdominal
pain and was again rushed to Dr. Anand. On examining Sindhu Kapoor Dr. Anand called Dr.
Suman Sharma, a gynecologist posted at DIIMS. Dr. Suman Sharma immediately got
Ultrasonography & per-vaginal test (also known as P/V Examination) done on her.
Ultrasonography showed no abnormality but on P/V Examination gynecologist found her
cervix to be hard, uterus to be retroverted and bulky and advised hysterectomy.

IV

As directed by Dr. Suman Sharma, Dr. Anand made the necessary arrangements for the
surgery to be done on next day and called Dr. Suman Sharma, Gynecologist, Dr. Chetan
(M.S), and Dr. Kumar (Anesthetist) for surgery.

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On the same day a Risk Bond was executed by Vikash Kapoor and the process of
hysterectomy was performed by the team of doctors. She was kept in the nursing home for a
week then Dr. Anand discharged her advising post-operative care.

VI

And, when she was being discharged she again complained of mild abdominal pain for which
Dr. Anand directed her to do Ultrasonography and X-Ray. Dissatisfied with Dr. Anand,
Vikash Kapoor took his wife to his friend Dr. Malik who after examining her referred her to
Dr.Chatterjee, a Laproscopic Surgeon at DIIMS. He examined her and advised a surgery in
furtherance of an open surgery was performed in which Dr.Chatterjee found pus measuring
around one litre inside the abdominal cavity which was drained and also found her intestine
adhered to each other which could not be separated through surgery and was kept under
observation after surgery, seeing her condition worsening she was again operated and was
declared out of danger and was discharged after ten days.

VII

After thirteen days, Sindhu again complained of extreme abdominal pain and even before she
could be taken to the hospital, she felt unconscious and died.

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STATEMENT OF ISSUES

I. WHETHER THE COMPLAINT AGAINST DR. ANAND RASTOGI, IS

MAINTAINABLE .
II. WHETHER DR. ANAND RASTOGI WAS NEGLIGENT IN PROVIDING
MEDICAL SERVICE .
III. WHETHER THERE WAS ANY CONTRIBUTORY NEGLIGENCE ON
THE PART OF THE PLAINTIFF.

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SUMMARY OF ARGUMENTS

I. THE COMPLAINT AGAINST DR. ANAND RASTOGI, IS MAINTAINABLE

UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT ,1986
The Hon’ble District Consumer Forum of Patligram has the jurisdiction to entertain
the complaint1 against Dr. Anand Rastogi .2 Irrespective of the fact that the service
availed by the complainant3 was free of charge, it would still constitute ‘service’4 and
the recipient a ‘consumer’5 under the Act .6

II. DR. ANAND RASTOGI WAS NEGLIGENT IN PROVIDING MEDICAL

SERVICE

Under Professional Negligence , the claimant must prove three ingredients to bring an
action under this tort : 7

 The professional who is being sued owed the claimant a duty of care .
 The professional breached the duty of care.
 The breach of duty of care caused the claimants loss .

Dr. Anand Rastogi breached the duty of care in deciding whether to undertake the
case as he was not competent to deal with the cases related to gynecology. He
breached the duty of care in what treatment to give as he did not diagnose the
patient’s cause of illness properly keeping in mind all the probabilities. He did not
secure informed consent to an operation. He exceeded the authority given to him. He
owed a special care to the patient i.e Deceased as she was incapable of taking care of
herself.

1
Section 2(c)(iii), Consumer Protection Act,1986
2
Section 11(1)& 2(a) , Consumer Protection Act,1986
3
Section 2 (b)(V), Consumer Protection Act , 1986
4
Section 2(o) , Consumer Protection Act, 1986
5
Section 2(d), Consumer Protection Act, 1986
6
Devendra Kumar Sharma v. Post Graduate Institute of Medical Education & Research , I (2002) CPJ 211 at
214 (Chandigarh).
7
Medical law and Ethics , Edn 2nd , pg. 94

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ARGUMENTS ADVANCED

1. THE COMPLAINT AGAINST DR. ANAND RASTOGI IS MAINTAINABLE

The Hon’ble District Consumer Forum of Patliputra has the jurisdiction to entertain the
complaint as Dr. Anand Rastogi and Mr. Vikash Kapoor voluntarily resided and carried on
their businesses. The value of compensation claimed i.e 15 lakhs does not exceed the limit of
20 lakhs8 (A). The complainant, Mr. Vikash Kapoor (on behalf of the deceased; Deceased, as
her legal representative) is a ‘consumer’ 9(B). Deceased is a potential user of the medical
“service”10. Though service of free of charge does not come within the ambit of ‘service’ but
remuneration is not a factor of negligence. A claim for negligence can succeed even if the
medical care was rendered gratis. (C)11. Service as defined under section under 2(1)(o) of the
act irrespective of the fact that a service is rendered free of charge to persons who do not pay
for such service would fall within the ambit of expression ‘Service’.12

(A) JURISDICTION

The Hon’ble District Consumer forum of Patliputra has the jurisdiction to entertain the
complaint against Dr. Anand Rastogi as each of the opposite parties voluntarily resided in
patliputra.13 The cause of action arose were in the jurisdiction of the forum 14. The
compensation claimed for the deficiency in service amounts to Rs.15,00,000 which does not
exceeds the limit of Rs.20,00,000 as per the guidelines stated for the jurisdiction of district
consume forum.15

(B) CONSUMER

The complainant16, Mr. Vikash Kapoor made a complaint on behalf of the deceased Mrs.
Sindhu Kapoor as her legal representative because she is a ‘consumer’.17

8
Section 11, Consumer Protection Act ,1986
9
Section 2(1)(d), Consumer Protection Act,1986
10
Section 2(o), Consumer Protection Act , 1986
11
Prof. T.D.Dogra & Lt. Col. Abhijit Rudra, Lyon’s Medical Jurisprudence & Toxicology 11 th edition(2012) Pg. no. 318
12
Devendra Kumar Sharma & Others Vs. Post Graduate institute of Medical Education and research and others,
2001,
13
Section 11(2)(a), Consumer Protection Act, 1986
14
Section 11(2)(c), Consumer Protection Act, 1986
15
Section 11(1), Consumer Protection Act, 1986
16
Section 2(b)(v), Consumer Protection Act, 1986
17
Devendra Kumar Sharma & Others Vs. Post Graduate institute of Medical Education and research and others,
2001,

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(C) SERVICE

Medical Professional Service comes within the ambit of Service18. Deceased is a potential
user of the service availed by her. Though in the situation where the doctor rendered service
free of charge to patient or under contract of personal service by way of consultation,
diagnosis, and treatment both medicinal and surgical would not fall within the ambit of
Service as defined in section 2(1)(o) of consumer protection act.

In the instant case it has been held that services rendered at a private hospital where services
are rendered on payment of charges and also rendered free of charge to other person availing
such service would fall within the ambit of the expression ‘service’ irrespective of the fact
that a service is rendered free of charge to persons who do not pay for such service.
Therefore, a claim for negligence can succeed even if the medical care was rendered gratis.

Service rendered free or non-payment of dues by patient does not constitute justification for
dereliction of the duty of care. If a medical man accepts responsibility and undertakes
treatment and the patient submitted to his direction and treatment accordingly, he owes a duty
to the patient to use diligence, care, knowledge, skill, and caution in administering the
treatment. No contractual relation was necessary nor was it necessary that the service should
be rendered for reward19.

2. DR. ANAND RASTOGI WAS NEGLIGENT IN PROVIDING MEDICAL

SERVICES

It is most humbly submitted before the Hon’ble High Court that there was negligence on the
part of the Dr. Anand Rastogi.
Whether the professional skills have been exercised with ordinary care
In Jacob Mathew vs. State of Punjab it was held that a professional may be held liable for
medical negligence if he did not exercise, with reasonable competence in the given case the
skill he did possess.20 In the given case, Dr. Anand Rastogi, finding her recovery to be normal
and her stitch to be dry, discharged her advising post-operative care. When they went to
another authority that is Dr. Chaterjee then Dr. Chatterjee found pus measuring around one

18
Section 2(o), Consumer Protection Act, 1986
19
Rex v. Baternarz, (1925) 94, L.J.,K.B.,791 at 794
20
Jacob Mathew vs State of Punjab AIR 2005 SC 3180

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litre inside the abdominal cavity of Sindhu which was drained off later. And also found the
intestines adhered to each other which could not be separated through surgery. It was a major
failure on the part of Dr. Anand in performing his duty of reasonable care and thus he is
liable to be sued.

In Bolam vs Friern Hospital Management Committee it was held that, a man need not
possess the highest expert skills; it is sufficient if he exercises the ordinary skills of an
ordinary competent man.21 Here Dr. Anand Rastogi failed to exercise the ordinary skill as
an ordinary competent man, because Dr. Anand finding her recovery to be normal
discharged her, which infact, was not normal and this raises a serious question upon his
conduct.

The degree of skill and care required by a medical practitioner explained in Haslbury’s Laws
of England22;

1. That there is usual and normal practice.

2. That the defendant has not adopted it.

3. The course in fact adopted is the one is the one which no professional man of ordinary skill
would have taken had he been acting with ordinary care.

Whether proper duty of care was taken in administration of treatment

The court in the case of Indian Medical Association vs. VP Shantha and Ors., noted that
medical professional did not enjoy any immunity from being sued in tort or contract on the
grounds of negligence23 because it is profession and not occupation. The court held that
“profession” differs from “occupation” especially in context of performance of duties and
hence the occurrence of negligence.

In the case of Dr. L.B Joshi vs TB Godwale the court defined the doctor’s duty of care when

21
Bolam vs. Friern Hospital Management Committee [1957] 1 W.L.R. 582, 586

22
Jacob Mathew vs. State of Punjab AIR 2005 SC 3180.
23
Indian medical Association vs VP Shantha and others[1955] 6 SCC 651

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he attends to his patient.24 The duties of care are:

 A duty of care in deciding whether to undertake the case.

 A duty of care in deciding what treatment to give.
 A duty of care in administration of treatment.

In the given case the doctor when undertook the case, he undertook the other duties of
deciding what treatment to give and proper administration of the treatment. Although Dr.
Anand can be said to have followed the second duty of care of deciding what treatment to
give properly but he failed to provide a duty of care in the administration of the treatment.
Here, Dr. Anand first of all gave her medicines even when the test results was negative in the
first case. Also, the duty of reasonable care was not performed at the time of discharge.
Hence, here Dr. Anand should be held liable for negligence.

In a case of Dr. P NarsimhaRao vs. G. Jayprakasu25 the plaintiff was entitled to claim
compensation because the anaesthetist exceeded the anaesthesia requirements in the body.

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, nor because he has displayed less skill or knowledge than others would
have shown. 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

In context of the above decision, negligence is proved on the part of the doctor as was guilty
of failure of exercising his ordinary skill. If Dr. Anand Rastogi had acted with ordinary care
he would not have given the medicines for the first time even when nothing was diagonised.
Also, she would not have been discharged if there would have been exercising of ordinary
skill and prudence by the doctor.

24
Dr. L.B Joshi vs TB Godwale AIR 1989 P&H 183.

25
Dr. P NarsimhaRao vs. G. Jayprakasu AIR 1990 AP 207.

26
Hunter v. Hanley 1955 SC 200.

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Whether the risks and consequences of the treatment was disclosed to the petitioner

In the case of Sidaway v. Bethlem Royal Hospital Governors and Ors., Bolam Test was
adopted as the measure of doctor's duty to disclose information about the potential
consequences and risks of proposed medical treatment.27 In this case, Dr. Anand Rastogi did
not notify the plaintiff regarding the post discharge risks and consequences and this resulted
to the detoriation of the health of Sindhu and resultantly her death.

In the given case, it was a negligent act on part of the surgeon. Dr. Anand regarding non
disclosure of the future risks. Thus, he should be held liable for the same.

In the case of A.S. Mittal v. State of Uttar Pradesh it was held that as long as the doctor acts
in a manner which is acceptable to the medical profession and the court finds that he has
attended the patient with due care, skill and diligence and if the patient still does not survive,
or suffers a permanent ailment, it would be difficult to hold the doctor guilty of negligence. 28
In the present case, however, the conclusion of negligence against was drawn against Dr.
Anand by applying the principle of res ipsa loquitur, as the patient complained of mild
abdominal pain soon after the discharge.29Also later on it was found that pus measuring
around one litre inside the abdominal cavity of Sindhu which was drained and also found the
intestine adhered to each other which could not be separated through surgery. 30 Thus, Dr.
Anand should be held liable for negligence.

27
Sidaway v. Bethlem Royal Hospital Governors and Ors. [1985] 1 All ER 643.

28
A.S. Mittal v. State of Uttar Pradesh, AIR 1989 SC 1570.

29
Factsheet para 6.
30
Factsheet para 7.

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3. WHETHER THERE WAS CONTRIBUTORY NEGLIGENCE.

It is most humbly submitted before the Hon’ble District Consumer Forum, Patliputra that
there was no contributory negligence on the part of plaintiff leading to death of wife of the
plaintiff (Mr. Vikas Kapoor).

3.1 WHETHER THE ACT OF THE PETITIONER WAS A PROXIMATE CAUSE.

It is humbly pleaded before the court of law that an accident would be said to be a result of
contributory negligence if “the proximate cause of the accident is the act or omission is
amounting to want of ordinary care of defiance of duty of care on the part of complaining
party has co joined with the other party negligence.”31

In the given case the act of shifting Sindhu Kapoor to a different hospital is not a proximate
cause of the injury caused her. Rather it was Dr. Anand Rastogi, who examined her and
advised some tests, the results of which did not show any abnormality. Yet he prescribed
some medicines.32Hence, this act did not amount to contributory negligence on part of Vikash
Kapoor.

3.2 WHETHER THE PETITIONER TOOK ALL THE REASONABLE CARE.

Contributory negligence is applicable solely to the conduct of plaintiff. This is a defence in
which the defendant has to prove that the plaintiff failed to take reasonable care of his own
safety that contributed to the harm suffered by plaintiff.33

In this case Sindhu Kapoor’s husband Vishal Kapoor took all the reasonable care. After the
test has been done on Sindhu Kapoor, Dr. Anand despite of normal result gave certain
medicine. After having those medicines she suffered severe acidity issues. Dissatisfied with
Dr. Anand, Vikash Kapoor took his wife to his friend, Dr. Malik who upon examination
referred Sindhu to Dr. Chatterjee, a Laproscopic Surgeon at DIIMS. Dr. Chatterjee also ran a
private clinic. 34In this way it is humbly submitted before the hon’ble court of law that Vikas
Kapoor was

31
Municipal Corporation of Greater Bombay vs. LakshmanIyer AIR 2003 SC 4182
32
Factsheet ¶2.
33
Municipal Corporation of Greater Bombay vs. LakshmanIyer AIR 2003 SC 4182
34
Factsheet¶7.

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In a landmark case certain rules were given for proving medical negligence. The rules are: 1.
The plaintiff did not own a duty of care to the other party rather he owed a duty of care to
himself.35

2. It is not enough to show that plaintiff did not take due care rather it has also to be proved
that it is the lack of care that contributed to the damage.36

In the given case the plaintiff owed a duty of care to himself and he undertook all the duties
carefully. Moreover, Vikas Kapoor acted in due care and negligence as he acted as per the
advice of Dr. Anand Rastogi is a renowned medical practitioner holding a MBBS degree
from DIIMS, the rank one medical college in the state. Dissatisfied with Dr. Anand, Vikash
Kapoor took his wife to his friend, Dr. Malik who upon examination referred Sindhu to Dr.
Chatterjee.37

Thus, Dr. Anand was solely responsible for the condition of Sidhu rather Mr. Vikash Kapoor
whose act did not constitute contributory negligence.

3.3 WHETHER THE DOCTRINE OF ALTERNATIVE DANGER IS APPLICABLE.

It is humbly submitted before the court of law that although the plaintiff is supposed to be
careful in spite of defendant’s negligence, there may be certain cases where the plaintiff is
justified in taking some risks because of some dangerous situations created by plaintiff.

The law therefore permits the plaintiff to encounter an alternative danger to save him from
the danger posed by the defendant. This principle was clearly used and explained in the case
of Jones vs Boyce. 38This principle is known as doctrine of alternative danger. This doctrine
was also opined by Supreme Court in the case of Shyam Sundar vs State of Rajasthan. 39

In the given case after getting discharged, Sindhu again complained of mild abdominal pain
and Dr. Anand asked her to get ultrasonography and X-ray done and return with the test
results. Dissatisfied with Dr. Anand, Vikash Kapoor took his wife to his friend, Dr. Malik
who upon examination referred Sindhu to Dr. Chatterjee, a Laproscopic Surgeon at DIIM. 40

35
Nance vs British Columbia Electric Rail Corp. [1951] A.C. 601
36
Ibid.
37
Factsheet¶7.
38
Jones vs Boyce [1816] 1 Stark, 493
39
ShyamSundarvs State of Rajasthan AIR 1974 SC 890
40
Factsheet¶7.

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Vikash Kapoor took such a risk because of the pathetic situation created pursuant to
discharge and according to the doctrine of alternative danger risks taken due to the dangerous
situations created by the defendant does not amount to contributory negligence on the part of
the plaintiff.

41
In 1964 in the case of General Hospital of Greater Miami, Inc. v. Gager it so held, and in
42
1966, in Musachia v.Rosman the court said: It is only when negligent acts on the part of
the plaintiff have a direct and proximate causal relation, or contribute in some appreciable
degree; to the injury that recovery is precluded. In the given case the act on the part of the
plaintiff was not a proximate cause hence there is no contributory negligence.

41
Hospital of Greater Miami, Inc. v. Gager 160 So.2d 749 (Fla. Ct. App. 1964)
42
Musachia v.Rosman 190 So.2d 47, 50 (Fla. Ct. App. 1966) quoting Bessett v. Hackett, 66 So.2d 694 (Fla.
1953).

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PRAYER

Wherefore in the light of the issues raised, arguments advanced, and authorities cited, it is
humbly requested that this Honourable Court may be pleased to adjudge and declare:

1. That the matter is maintainable before the district consumer forum of Patliputra under
section.12 of Consumer Protection Act, 1986.
2. That Dr. Anand Rastogi was negligent in providing medical services.

And pass any such order, writ or direction as the Honourable Court deems fit and proper, for
this the Respondents shall be duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE PLAINTIFFS

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