memorial for moot court, Exercises of Mock Trial and Moot Court

Download memorial for moot court and more Exercises Mock Trial and Moot Court in PDF only on Docsity! WRITTEN SUBMISSION ON THE BEHALF OF APPELLANT TEAM CODE- SGTU05 SHREE GURU GOBIND SINGH TRICENTENARY UNIVERSITY 1st INTRA MOOT COURT COMPETITION, 2022 BEFORE THE HON’BLE SUPREME COURT OF INDIA Under article 136 of the Indian Constitution IN THE MATTER OF PADMAVATHI (APPELLANT) V. QUICK HEAL HOSPITAL PVT. LTD AND ORS. (RESPONDENT) MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE CHIEF JUSTICE AND OTHER JUDGES OF THE SUPREME COURT OF INDIA TEAM CODE– SGTU05 Page 2 of 22 MEMORANDUM ON BEHALF OF APPELLANT INDEX OF CONTENTS SERIAL NO. TOPIC PAGE NO. 1. LIST OF ABBREVIATIONS 4 2. INDEX OF AUTHORITIES 5-6 3. STATEMENT OF JURISDICTION 7 4. STATEMENT OF FACTS 8-10 5. 5.1 5.2 5.3 5.4 ISSUES RAISED: WHETHER THERE IS ANY MEDICAL NEGLIGENCE CONSTITUTING DEFICIENCY IN SERVICE ON THE PART OF THE RESPONDENT UNDER THE CONSUMER PROTECTION ACT,2019? IS THERE ANY VOLITION OF THE RIGHT TO INFORMED CONSENT OF THE PATIENT? WHETHER THERE IS ANY NEGLIGENCE ON THE PART OF THE QUICK HEAL HOSPITAL PVT. LTD.? IF NEGLIGENT, WILL THE PRINCIPLE OF VICARIOUS LIABILITY BE ATTRACTED? IS THERE ANY VIOLATION OF THE RIGHT OF THE LIFE OF THE PATIENT GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA? 11 6. SUMMARY OF ARGUMENTS 12-13 TEAM CODE– SGTU05 Page 5 of 22 MEMORANDUM ON BEHALF OF APPELLANT LIST OF AUTHORITIES JUDICIAL DECISIONS REFERRED 1. Laxman Balkrishna Joshi vs Trimbak Bapu Godbole And Anr. 1969 AIR 128 2. Joseph pappachan v. Dr. George Moonjerly 1994(1) KLJ 782 3. Aparna Dutta v. Apollo Hospital Enterprises LTD 1 2002 ACJ 954 Mad. H.C. 4. SMT. REKHA GUPTA V. BOMBAY HOSPITAL TRUST AND ANR. 1 2003(2)CPJ160(NCDRC) 5. Aparna Dutta v. Apollo Hospital Enterprises LTD TEAM CODE– SGTU05 Page 6 of 22 MEMORANDUM ON BEHALF OF APPELLANT Books Referred 1. Dr. R.K.Bangia, law of torts, 25th edition. 2. The consumer protection act 2019, the bare act. 3. Supreme court on drugs, medical laws medical negligence , by Surendra malik sudeep malik Statutes Referred 1. Consumer protection act, 2019. 2. The Constitution of India. Websites referred 1. Indian kanoon, https://indiankanoon.org/ (9 Oct 2022) 2. Manupatra, https://www.manupatrafast.com/ (9 Oct 2022) 3. Legally India, www.legally.com (9 Oct 2022) 4. Ip leaders, https://blog.ipleaders.in/ (9 Oct 2022) TEAM CODE– SGTU05 Page 7 of 22 MEMORANDUM ON BEHALF OF APPELLANT STATEMENT OF JURISDICTION THE SUPREME COURT OF THE INDIA HAS THE JURISDICTION TO ENTERTAIN THE PRESENT APPEAL UNDER ARTICLE 136 OF THE CONSTITUTION OF THE INDIA. The present memorandum sets forth the facts, contentions, and arguments in the present case. TEAM CODE– SGTU05 Page 10 of 22 MEMORANDUM ON BEHALF OF APPELLANT discharged with cardiac supportive medication and asked to come for a review 10 days later. On 09-03-18, the patient developed pain, fever, and discomfort in the operated area and was taken back to the casualty of quick heal hospital. 6. The patient was admitted by respondent no.5’s assistant who was also a doctor, as respondent no. 5 had gone abroad for an international medical conference, the patient was informed about the surgical site infection. On 11-03-18 respondent no.5 saw the result of cultural sensitivity. On 12-03-18 respondent no.5 advised his assistant to start cefixime injection, the next day after the second dose of the injection the patient complained of mild itching near the injection site. The patient’s wife reported to the nurse at 11 pm and the nurse applied some ointment for relief 7. The next day at 8 am another dose of injection was given as instructed by the doctor. The patient complained of severe itching around 9 am over the injection site and his lips were swollen, after the diagnosis, it was a case of anaphylaxis (allergy) due to the antibiotic injection which can be commonly encountered and started on steroids. The patient died at 10:30 am on 14-03-18 due to the above complications. 8. On 03-07-18, the appellant PADMAVATHI (wife of the deceased) filed a CONSUMER COMPLAINT under the CONSUMER PROTECTION ACT,1986 before the STATE COMMISSION against QUICK HEAL HOSPITAL PVT. LTD and RESPONDENT NO. 2 to 5 9. The Commission found negligence on the part of the Respondents on the following grounds: (i) Not taking sufficient care while performing the surgery (ii) Diagnostic methods and not caring to ascertain the previous history of the patient (iii) Poor post- operative care; (iv) Delegating the case to a non-expert; (v) Violation of not obtaining informed consent without explaining allergic and other complications. So, the Commission directed that each Respondent has to pay Rs.10 Lakhs to the Appellant as the liability of the Respondents was joint and several. The Commission also awarded costs of Rs.10,000/-. However, the Commission did not find any justification for the claim of Rs.5 lakhs towards medical expenditure. THE STATE COMMISSION held that it was gross negligence on the part of respondent no. 1,4&5 resulting deficiency in service. TEAM CODE– SGTU05 Page 11 of 22 MEMORANDUM ON BEHALF OF APPELLANT 10. The Appellant filed the appeal in THE NATIONAL COMMISSION on 07-04-20 seeking enhanced compensation of Rs.50 lakhs and the Respondents No.1, 4 & 5 filed the appeal on 14-04-20 seeking to set aside the order of THE STATE COMMISSION. 11. The National Commission allowed the appeal filed by Respondents No.1, 4 & 5 and dismissed the appeal filed by the Appellant for enhancement of compensation on 08-06- 22 and held that there was no medical negligence and deficiency in service on the part of the respondents. 12. The National Commission held that there was no negligence on the part of the Respondent. No.2. With regard to Respondent No.3, the National Commission held that he acted diligently and asked the patient to take some tests and to come for a review. But the patient did not turn up and take the tests as advised by respondent no.3.THE NATIONAL COMMISSION stated that there was no medical negligence on the part of respondents no. 4 and 5 13. On 10-08-22, the appellant filed a civil appeal in the SUPREME COURT OF INDIA. TEAM CODE– SGTU05 Page 12 of 22 MEMORANDUM ON BEHALF OF APPELLANT ISSUES RAISED 1. WHETHER THERE IS ANY MEDICAL NEGLIGENCE CONSTITUTING DEFICIENCY IN SERVICE ON THE PART OF THE RESPONDENT UNDER THE CONSUMER PROTECTION ACT, 2019? 2. IS THERE ANY VOLITION OF THE RIGHT TO INFORMED CONSENT OF THE PATIENT? 3. WHETHER THERE IS ANY NEGLIGENCE ON THE PART OF THE QUICK HEAL HOSPITAL PVT. LTD.? IF NEGLIGENT, WILL THE PRINCIPLE OF VICARIOUS LIABILITY BE ATTRACTED? 4. IS THERE ANY VIOLATION OF THE RIGHT OF THE LIFE OF THE PATIENT GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA? TEAM CODE– SGTU05 Page 15 of 22 MEMORANDUM ON BEHALF OF APPELLANT the hospital didn’t have the proper knowledge to identify the problem The patient’s suffering ultimately causes the death of the patient. When an employee breaches his duty in the course of performance of his duty as an employee, the liability of the employer arises for such breach of duty, there is a breach of duty to take care, a breach of duty to decide what treatment to give to the patient, And breach of duty to decide the administration of treatment on the part of the doctors who are the of the QUICK HEAL HOSPITAL PVT. LTD who is the employer over here and it attracts the legal maxim “ Respondent superior” which means “let the principal be liable”. Hence there is negligence on the part of the QUICK HEAL HOSPITAL PVT. LTD. The principle of vicarious liability will be attracted in the present case because of the employer-employee relationship between the two, so the employer (QUICK HEAL HOSPITAL PVT. LTD.) will be liable for the breach of duty to take care, the breach of duty to decide what treatment to give, and the breach of duty to decide the administration of the treatment. Hence the principle of vicarious liability will be attracted here. IV. IS THERE ANY VIOLATION OF THE RIGHT TO LIFE OF THE PATIENT GUARANTEED UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA? It is humbly submitted by the prosecution before the Hon’ble Supreme Court that there is a violation of the right to life of the patient guaranteed under article 21 of the constitution of India as there is a breach of duty to take care of the patient by the doctors which violate the fundamental right to health of the patient. In the present case breach of duty to take care by the doctors cause the death of the patient, The Right to Protection of Life is one of the main objectives of Article 21, hence there is a violation of article 21. TEAM CODE– SGTU05 Page 16 of 22 MEMORANDUM ON BEHALF OF APPELLANT ADVANCE ARGUMENTS ISSUE 1 1. THERE IS MEDICAL NEGLIGENCE CONSTITUTING DEFICIENCY IN SERVICE ON THE PART OF THE RESPONDENT UNDER THE CONSUMER PROTECTION ACT,2019. It is humbly submitted by the prosecution before the Hon’ble Supreme Court that there is medical negligence constituting deficiency in service on the part of the respondent under the consumer protection act, 2019 as the respondents didn’t perform their duty properly which cause medical negligence on the part of the respondents. It was well stated by the Hon’ble Supreme Court in Laxman Balkrishna Joshi vs Trimbak Bapu Godbole and Anr.1 That “The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the 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 give, 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. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.” Similarly, in the present case, there is a breach of duty to take care, a breach of duty to decide what treatment to give to the patient, and a breach of duty to decide the administration of treatment, by the respondents. In the present case, the STATE COMMISSION found gross negligence and dereliction of duty on the part of respondent no. 1,4&5. The Commission found negligence on the part of the Respondents on the following grounds: (i) It is the duty of the doctor to take proper care while performing the surgery but in the present case doctors didn’t take sufficient care while performing the surgery (ii) It is the primary duty of the doctors to ask patient previous history related to the problem then perform any treatment but here 1 1969 AIR SC128 TEAM CODE– SGTU05 Page 17 of 22 MEMORANDUM ON BEHALF OF APPELLANT the doctors didn’t use proper diagnostic methods and not caring to ascertain the previous history of the patient (iii)It is the duty of the doctors to provide all the proper information related to the post-surgery side effects but here management gave proper information neither to the patient nor to his family about the risks and post-surgery side effects which let to Poor post- operative care; (iv) when the patient developed pain and discomfort in the operated area and was taken back to the Quick Heal hospital the patient was admitted by the resp.5’s assistant who was not an expert and treated the patient for four days, Delegating the case to a non-expert causes a breach of duty to decide the administration of treatment. The negligent act on the part of the respondents caused the death of the patient. Hence there is medical negligence constituting deficiency in service on the part of the respondent, therefore respondents are liable for their negligent actions. TEAM CODE– SGTU05 Page 20 of 22 MEMORANDUM ON BEHALF OF APPELLANT before administering the therapy, or a clinical researcher may ask a participant in a clinical trial before enrolling that person. Informed consent is obtained from the fields of medical ethics and research ethics5. In the case of the Salgo vs. Leland Stanford Junior University Board of Trustees (1957), it was held that doctors have an affirmative obligation to disclose information6 The respondents didn’t even inquire about the previous treatment taken by the patient if any. It is also the duty of the medical professional to inquire about the medical history of the patient at the time of admission of the patient into the hospital. The facts also reveal that respondents 4 & 5 didn’t inquire if the patient had any allergies to any particular tablet, injection, ointment, etc. The previous treatment and medical history of a patient and the information about the medications he is allergic to, are one of the initial steps during the admission of the patient and play an eminent role in preparing the diagnosis by a medical professional. While at the case in hand, the performance of these initial and eminent steps is in absolute absence, which makes the medical professionals negligent on their part. Even if a patient consented to the surgery assuming the risk associated with treatment, it does not mean they have given up all their rights to receive an acceptable standard of care. A patient does not consent to the negligence of a medical professional. The patient was experiencing a persistent itching at the injection site, which is a common side effect of the injection cefixime, despite the fact the hospital staff was giving injection doses, ignoring the fact that it was a result of an allergic reaction to the injection Cefixime. Respondent 5 did not identify the type of infection the patient had and didn’t treat him with the right antibiotic and he failed to take the measures which could have prevented the risk of antibiotic resistance in the patient. The hospital staff did not monitor the vitals of the patient and as mentioned in the facts the patient suffered high sugar levels. The patient was hyperglycemic and was prone to infections post-surgery as having diabetes raises the risk of several types of infections. While the respondent completely ignored monitoring the blood sugar levels and vitals of the patient. When the health of the patient deteriorated drastically and after he developed severe pain and his lips and face were swollen, the duty doctor was informed and then he diagnosed the patient with anaphylaxis allergy. As per the facts, the patient had the symptoms of allergy to the antibiotic injections given by respondent 5. The injection of gentamicin and cefixime can cause aminoglycoside toxicity which can cause renal failure and vestibular damage. Here the doctor was ignorant and negligent made a mistake, and the patient paid for it at the cost of his life. The doctors did not inquire and monitored if the patient was hypersensitive to those antibiotics. The patient would not have had the treatment or would have had another course of treatment and diagnosis if he had known about the risks and would not, therefore, have suffered the loss. Respondent 5 was negligent in advising the patient about the risks. Also, Respondent 5 fails to obtain informed consent which is one of the most fundamental ethics in medicine and a human right 5 Law insider, https://www.lawinsider.com/ (9 Oct 2022) 6 Salgo vs. Leland Stanford Junior University Board of Trustees 154 C.A. 2d 560; 317 P. 2d 170. Califonria [sic; California] TEAM CODE– SGTU05 Page 21 of 22 MEMORANDUM ON BEHALF OF APPELLANT 1957 TEAM CODE– SGTU05 Page 22 of 22 MEMORANDUM ON BEHALF OF APPELLANT recognized under international law, therefore he has committed a crime and has liability for medical malpractice. Therefore the patient’s right to informed consent has been violated. TEAM CODE– SGTU05 Page 25 of 22 MEMORANDUM ON BEHALF OF APPELLANT 11 (1996) AIR SC 2426 TEAM CODE– SGTU05 Page 26 of 22 MEMORANDUM ON BEHALF OF APPELLANT patient, the liability of negligence cannot be fastened on the doctors. TEAM CODE– SGTU05 Page 27 of 22 MEMORANDUM ON BEHALF OF APPELLANT PRAYER Therefore, in the light of the legal precedents and principles cited; provisions applied, and arguments advanced; it is most humbly pleaded before the hon’ble court that may this hon’ble court be pleased to: 1. The respondents were negligent on their part and there was a deficiency in the service offered by the respondents under the consumer protection act,2019 which resulted in the death of the patient. Therefore, the counsel prays for compensation of rs.50 lakhs. 2. To compensate the appellant, for the cost of the suit. 3. The respondents, despite being professionally competent performed their duty to care negligently, Rs. 5 lakhs to be compensated towards the expenses incurred in the treatment as the deceased was the sole bread earner of his family. 4. To declare that the right to informed consent of the patient has been violated. 5. To pass such orders as are necessary for the interest of justice, equity, and good conscience. All of which are most humbly and respectfully submitted S/d COUNSEL FOR RESPONDENT