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IN THE HONBLE SUPREME COURT OF OMBUDSTAN

THE PETITION FILED UNDER ARTICLE 32 OF CONSTITUTION OF OMBUDSTAN

IN WRIT PETITION NO:-______________/2014

IN THE MATTER OF

Mrs. Schmidt

PETITIONER NO. 1

AND
Human Rights Commission Ombudstan

PETITIONER NO. 2

V.
GOVERNMENT OF OMBUDSTAN

RESPONDENT NO. 1

AND
Four Pills hospital

RESPONDENT NO. 2

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

TABLE OF CONTENT

INDEX OF AUTHORITIES. 3
STATEMENT OF JURISDICTION.5
STATEMENT OF FACTS.6
STATEMENT OF ISSUES15
SUMMARY OF ARGUMENTS ..16
ADVANCE ARGUMENTS..18
PRAYER FOR RELIEF.28

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INDEX OF AUTHORITIES

A. CASES CITATED
A.

Cases Cited

1. Acthutrao Haribhau Khodwa v. State of Maharashtra ,AIR 1996 SC 2377


2. Ayaaubkhan Noorkhan Pathan V. State of Maharashtra ,AIR 2013 SC 58
3. Bolam v Friern Hospital Management Committee: (1957) 2 All ER 118 at 121
4. Bolton v Stone (1951) A.C 850 initself
5. Crawford v. Board of Governors of Charing Cross Hospital (1953) 2All Er 210 at 221
6. J.S Bindra v. State of Gujarat 2012 (2) GLR 1156
7. Jacob Mathew v State of Punjab (2005) 6 SCC 1
8. Kusum Sharma & Others v. Batra Hospital & Medical Research Centre & Others (2010)
3 SCC 480
9. Lanphier v. Phipos (1838) 8 C & P 475
10. Lochgelly Iron Co. v. MMullan (1934) A.C 1 at 25, Lord Wright
11. Martin DSouza v Mohd. Ishfaq (2009) 3 SCC 1
12. Maynard V. West Midlands Regional Health Authority (1985) 1 All ER 635
13. Neuzen v. Kron (1993) 103 D.L.R (4Tth) 473 at 497-498, BCCA
14. S. Bhoopathy v Govt of Tamil Nadu (2012) I MLJ 554
15. Smt Afsana Bano alias Baby v. Dr Manju Verma 2014(3) CRP 252 (NC)
16. Smt. Neeti Saluja v Dr Batra 2014(3)CRP 44 (NC)
17. State of MP v. Behru Singh ,AIR 2012 SC 1062
18. State of Punjab v. Shivaram (2005) 7 SCC 1
19. State V. Union Of India AIR 1996 Cal 181 at 218
20. Wilsher v. Essex Area Health Authority (1987) Q.B 730 at 749
B.

Books And Articles Cited

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1. Public

Interest

Litigation,

India,

available

at:

http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41daaa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence

(Visited

on

September

5,2014)
2. Networking of Rivers, In Re 2012(3) SCALE 74
3. Information

on

medical

advancements,

available

http://www.hkcem.com/html/publications/Journal/2002-4/231-236.pdf

at:

(Visited

on

September 3,2014)
4. Perez CA. Methodology of Research and Practice for the Third Millennium: EvidenceBased Medicine. 25(3):285-308. (Rays 2000)
5. Information

on

Science

and

Technological

Advancements,

www.sciencedaily.com/releases/2009/06/090616080133.htm

(Visited

available
on

at:

September

3,2014)
6. Micheal A Jones ,Medical Negligence 638( Sweet and Maxwell, Oxford Publication)
7. M. Parikh,Parikhs Textbook of Medical Jurisprudence (CBS Publication, 6th edition)
8. JK Mason and GT Laurie, Law and medical ethics (Oxford University Press, 7th Edition)
9. Jonathan Herring, Medical law and Ethics (Oxford publications, 2nd edition)
10. Dr. Lily Srivastava, Law and Medicine 67 (Universal Publications)

C. DYNAMIC LINKS
1. www.indiankanoon.org
2. www.manupatra.com
3. www.westlawindia.com

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STATEMENT OF JURISDICTION

The Honble Supreme Court of Ombudstan has the inherent jurisdiction to try, entertain and
dispose off the present case by virtue of Article 32 of Constitution of Ombudstan.

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STATEMENT OF FACTS

1. Trauma care around the world has been inextricably linked to varied causes. It originated from
Caliphates to the Medieval Wars, World Wars, Conquest Wars and now the modern warfare.
During the Revolutionary Wars, trauma care was based on specific trauma principles particularly
those espoused by the pre medieval medical care professionals. Surgical procedures were limited
mostly to soft tissue injuries and amputations. The Colonial Civil War was remarkable because
of the contributions that were made to the development of systems of trauma care. The sheer
magnitude of casualties required extensive infrastructure to support the surgeons at the battlefield
and to care for the wounded. For the first time, in an armed conflict, anesthetics were used on a
routine basis of how frequently lessons have to be relearned regarding the treatment and care of
wounds.
2. In modern times, war zone wounds have become a part of the reported trauma incidences.
We can classify trauma occurrences to industrial-oriented, traffic accidental and terrorist related
trauma. As a consequence, the treatment of patients with shock and such pandemic similarities in
injuries sustained has evolved with time and nature of the trauma resulting in better outcomes
and receding failure recordings. From normal bandaging to surgery with compulsory amputation
and now the modern methods of anesthetic surgery, trauma care has come a long way from its
inception and recognition. The first trauma centre for civilians was started in 1966. Since then,
efforts to study trauma management have documented the efficacy of trauma systems in reducing
mortality and disability.

3. One of such pioneers, and one of the most successful researchers and a doctor in the field of
trauma care was Dr. Tony Stark. Dr. Stark who lost his parents and family in a mid-eastern civil
war, developed great affinity to trauma care and decided to make his life useful in the service of
these victims. Completing his education from Turmerica, which was considered to have the best
health care institutions in the world, proved very beneficial to Dr. Starks cause.

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4. His research and efforts were recognized and appreciated all over the world. Dr. Stark
developed a modern trauma care system called as Triage. In the system of Triage, a multilevel triage algorithm (listed as standard operating procedure in medical textbooks) was
formulated, which provides clinically relevant stratification of patients into categories. Before
the conceptualization of Triage, patients were treated by the ordinary FIFO (First In First Out)
method. This system resulted in wonders with respect to the treatment of about two hundred and
fifty patients that was directed to the Turmerican National Hospital when Turmerica witnessed
a hideous terrorist attack on its commercial hub. Thousands of patients were directed to various
trauma care centers in Turmerica simultaneously with similar injuries but with varying
intensities. A post medical analysis carried out suggested that this method should be adopted
worldwide, since terrorism was on an increase. The world of medicine thus, with the help of Dr.
Stark proved to be a more efficient trauma care system to the people.

5. Dr. Stark became a world famous figure who was headed to top medical institutions for
training, delivering lectures and various other trauma related problems. Dr. Stark pledged his
expertise to Trauma care. He came up with a new trauma care mechanism called Hypotensive
Resuscitation. This system reduced the risk of having any heart failures while treating the
wounds and injuries. His next inventive work was Graph Tissue Storage; which basically was
about freezing and storing them in life compatible chemicals, whereby these tissues could be
used again in the future. He became a celebrated scientist and was featured on cover pages of
Medical Journals. He was appreciated for saving lives through his contributions to the Medical
fraternity. He was awarded the highest Medical Honor, Red Crucifix, for his continuous work in
the field of trauma and especially for his Hypotensive Resuscitation technique.

6. In his quest for the Holy Grail in ultra modern trauma care techniques and the grit to stay one
step ahead of death, he achieved the gold mine of his career by propagating a potential method
called Hypothermia Method. Through the induction of hypothermia the surgeons would drain
the patients blood and replace it with freezing saline water, thus stalling the heart beat and other
vital organs in suspended animation. The patients, in such state, in effect, would be clinically
dead. On inducing hypothermia and slowing metabolism in dying patients, doctors could hope to
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buy crucial time in which they would try to treat the victims' wounds. In this state, almost no
metabolic reactions would happen in the body, so cells could survive without oxygen.

7. In this method the doctors would insert a tube called Cannula into the patient's aorta,
flushing the circulatory system with a cold saline solution until body temperature falls to ten
degree Celsius. As the patient enters a pre-planned suspended animation, without vital signs, the
surgeons would have sufficient time and atmosphere to repair the injuries before brain damage
occurs and perform these actions without the nerve wrecking unstable vital sign alerts. After the
operation, the doctors would use a heart-lung bypass machine with a heat exchanger to return
blood to the patient. Gradually, the blood will warm the body, which should circumvent injuries
that could happen when tissue is suddenly subjected to oxygen after a period of deprivation. If
the procedure works, the patient's heart would resume beating when body temperature reaches
twenty nine to thirty two degrees Celsius. It may take several hours or several days to regain
consciousness.

8. This technique for a few was too extreme but a large part of the world accepted the fact that
should the doctors of the world be able to achieve a high survival rate in trauma patients, they
ought to take such extreme steps. With this general consensus, the hypothermia technique was
listed in various medical journals around the world.

9. Ombudstan is one of the fastest growing economies of the modern world. Once considered to
be a third world, underdeveloped and stagnant nation, the image of the country is now changing
with economic growth at an impressive and rapid pace. This economic growth is being driven by
the expansion of services in certain areas that has grown consistently faster than most other
sectors. Though primarily considered as an agrarian country, Ombudstan has made rigorous
strides in the fields of science and technology.

10. Ranked penultimate in producing engineers and doctors all over the world, Ombudstan, in
spite of its appreciative statistics did not emerge entirely out of its third world image. With each
passing day, the Government showed an inclination towards the implementation of large scale
technological based systems, replacing the colonial systems. A science for all ideology was
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announced on the 64th Republic day of the country. The Prime Minister of Ombudstan in his
address to the nation emphasized the need to embrace the power of science and technology to
achieve substantial growth targets.
11. The Prime Minister, Mr. Robert Baratheon stated, The country will have to proceed
forward on a technologically navigated path. For generations, we have been oppressed under the
burden of being a third world country. The people of Ombudstan, especially the youth has
strived hard to change this image. We are in a position, wherein we need not be dependent on the
ardent West for our technological advancements. In the twenty first century, Ombudstan has the
potential to evolve and grow on its own and embrace science in such a way that we never have
ever in our history. On this occasion I give this nation a new motto, All for science and science
for all.

13. Standing by this commitment to the nation, the Government of Ombudstan started funding
and implementing high technologically oriented projects in almost every field imaginable.
Foresight was made the new mantra. The main advancements and focus were in the fields of
medical sciences, education, pharmacy and Information-Technology sector. The Government
and the entire bureaucratic hierarchy were convinced that these four main areas had to be
overhauled from inside out for the country to be modernized and to provide a better standard of
living to the citizens. 14. Sustainable support of the Government and a focused vision on public
health, rapid advancements were made in the field of pharmacy and medical sciences. Doctors
and biomedical researchers working in tandem contrived newer methods for the treatment which
could save lives and cause lesser collateral. Advanced form of medicines and medical treatments
were devised upon and implemented in various parts of the country, which in turn would
gradually expand and be implemented on a national scale.

15. To achieve irrefutable results, detailed schedules and tests were planned. Experiments had to
be carried out so schematically that all by-products obtained had to be either inert or harmless.
These tests were first carried upon certain kinds of animals, before they were actually
implemented on humans to ensure a hundred percent success rate. The result of such precision
and dedication was that common masses were getting an improved form of medical awareness,
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evidently unheard off until almost a decade. 16. Though Ombudstan and its people had come a
long way from the third world environment and standards of living, the dark past still continued
to haunt its citizens. Therefore the scientific advancements were still a far cry when compared to
the developed nations and it was ranked embarrassingly, in the bottom half of the Human
Development Index in the world.

17. One such prudent problem was that of road safety and improper system of granting driving
licenses. Allegedly few driving eligibility tests carried out and at times none were conducted
before a valid driving license was issued. The resultant factor is that Ombudstan has the largest
number of deaths in road accidents. A global status report on road safety estimated more than 2,
31,000 people die in road mishaps and incidents, alone in Ombudstan every year. Approximately
half of the estimated deaths on the country's roads are among vulnerable road users
understandably motorcyclists, pedestrians and cyclists. A heterogeneous mixture of traffic of
over-speeding vehicles along with vulnerable road users and unsafe state of roads all contribute
to the alarming fatality rates witnessed on Ombudstans roads.

18. In one such incident, Mr. Nick Fury, the Union Minister for Road Transport and
Highways, got injured in an unfortunate car accident. The accident took place in BrijDeli, the
governing capital of Ombudstan. This accident sent shock waves of grief and agony throughout
the nation; many stated their utter dismay at the conditions of the road and road safety
management of the country. The minister, traveling in his official vehicle, met with a head-on
collision with a car that allegedly jumped a stop light, causing the accident.

19. Mr. Fury was rushed to the trauma center of Four Pills Medical Research Center and
Hospital, where the doctors concluded, that Mr. Fury was very critical, and didnt have much
time to survive. The prime reason given for this was his massive blood loss. Internal and external
injuries bleeding profusely hampered doctors and it reduced the crucial time and reduced the
chances of immediate response to save the patient. This is where the Medical Director of Four
Pills Hospital, Dr. Natasha Black, came up with a suggestion to call in Dr Tony Stark from
Turmerica. The Health Minister along with his team present at the hospital made for the
necessary arrangements in order to get Dr Stark to Ombudstan. He also initiated the process of
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granting a temporary medical license to Dr Stark whereby he could then perform the necessary
medical procedures on Mr. Fury while also being under the purview of the laws of the land.

20. Dr Stark upon his arrival in BrijDeli, rushed to Four Pills to save Mr. Fury. It was decided
unanimously that Mr. Fury would be treated by the renowned Hypotensive Resuscitation Method
pioneered by Dr. Stark himself. Remarkably, after tedious efforts, Mr. Fury was successfully
stabilized and a positive prospect was envisioned. Dr Tony Stark became famous almost
overnight in Ombudstan with people terming him as the Doctor Wonder.
21. The Government of Ombudstan arranged for a felicitation function for Dr Tony Stark in his
honour, for having saved one of their high profile ministers. In this event, he took the
opportunity to speak and enlightened the elite doctors of his research in the field of hypothermia
and spontaneous trauma care. Dr. Stark elaborated on the point; how it was such a beneficial
technique and something which might become the future of trauma care. He also suggested it as
a remedy to the nuances of accidental deaths in the country. He also informed them that a
number of institutions have perfected the technique known as Emergency Preservation and
Resuscitation (EPR), based on Dr. Starks hypothermia methodology. These institutions
conducted experimental surgeries on hundreds of dogs and pigs have been conducted over the
last decade. Impressively, Ninety Percent of the animals have survived, most without discernible
cognitive impairment. These surgeries have even been performed on humans in extreme cases
where there were no other alternative but to use EPR. Interestingly, he mentioned, that the results
achieved were also significantly positive on humans. In a concluding remark he stated, Every
day at work I declare people dead. They have no signs of life, no heartbeat. I sign a piece of
paper knowing in my heart that they are not actually dead. I could, right then and there, suspend
them. But I have to put them in a body bag. It's frustrating to know there's a solution but not all
will apply it."
22. Intrigued by this unique solution to treat such accident victims, who, normally would not
have survived owing to their massive blood loss and the time taken to get them to the hospital
due to traffic and road conditions in the country, Dr. Bruce Banner, The Union Health Minister
instructed the directors of Four Pills and other top medical institutions to work upon this method
of treatment and the ways and means to implement it upon humans. A legal framework would be
created if this method proved to be a success. Dr. Black and her team worked hard towards the
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implementation of the EPR method in humans. Forwarding a drafted proposal, Dr. Natasha
Black and her team met Dr. Bruce Banner and other officials of the Health Ministry and incepted
a proposal that would be forwarded to the OCMR (Ombudstan Council of Medical Research).
After a detailed analysis the proposal was accepted by the Reviewing Committee of the OCMR.

23. The main hurdle for the implementation of the said method was the consent of the victim,
who often would be bought to the hospital in a severe condition of trauma and unpredictable
state of consciousness. They would definitely be unable to either approve or disapprove such
drastic but opportune method. Since the induction of hypothermia method was still in its
experimental stage in Ombudstan unlike Turmerica where it was a standard applicable
procedure, the hospital and research team at Four Pills found it hard to move ahead without
proper consent obtained from the victim.

24. After much deliberation it was decided that the Health Ministry shall distribute
disapproval bands among the masses of BrijDeli, the base location from where this
revolutionary method was to be introduced. Any person who is wearing the band while he is
brought to the trauma center at Four Pills, shall indicate that he does not give consent to be
treated by the induction of hypothermia methodology, even if the resultant shall be having less
chances of survival than the proposed method.
25. The Health Ministry started distributing bands through All BrijDeli Chemists
Association. Free bands were available at all registered chemist. Large hoardings, banners and
posters were also put up at all public places around BrijDeli. A three month long comprehensive
peoples awareness program was taken up by the Government so that each individual was made
aware of the experiment and those who wished against being treated by the EPR method could
avail the band facility free of cost. With the end of the people awareness program the team of
doctors and researchers at Four Pills launched and declared the EPR treatment method.

26. It was decided that this method would only be conducted on victims who do not have the
band at the time they were bought to the hospital. Also, it was decided that only in extreme cases
where there is no other option left for the doctors, but to suspend the patient with hypothermia,
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shall this method be applied. The data of the said experiment shall be reviewed at the end of six
months and a decision shall be taken on further continuance depending upon the success rate.
The trial shall test EPR patients and compare the results to patients treated by normal method
who were bought to the hospital in a similar condition and were wearing the disapproval
bands.
27. Mr. Schmidt, a citizen of Winterfell had travelled to Ombudstan for official purpose. He was
appointed as the Chief Technical Officer of Poka Pola Ombudstan, a subsidiary company of
the famous Poka Pola Ltd Turmerica, a Cold drink manufacturing company. Mr. Schmidt was
in charge of the new packaging machine being installed in the plant which was situated on the
outskirts of BrijDeli. While surveying the installation from the higher floors of the plant, Mr.
Schmidt climbed onto a perilous edge of the floor to investigate the same. In doing so, he slipped
and fell onto the scaffolding. He suffered a mild head injury but a sharp rod from the scaffolding
pierced his body.
28. He was rushed to Four Pills Hospital which was located about 30 minutes away. It took Mr.
Schmidt all of about 34 minutes to reach the trauma center which resulted in deteriorated
condition. Sensing the severity of the injuries sustained, the doctors decided to call upon Dr
Starks expertise. Unlike in the case of Mr. Fury, sensing the shortage of time, it was decided
that the surgery would be conducted by a remote robotic surgery, which was understandably a
standard practice in Ombudstan.
29. Arrangements were made where by the team of doctors at Four Pills. Hypothermia, which
by now had some research and the procedures and other methodology was listed in the medial
journal, was used to treat Mr. Schmidt, upon finding that there was no disapproval band on his
hand.
30. According to the standard norms of Remote Robotic surgery, another Head surgeon must
also take responsibility of the surgery in case of the occurrence of any unforeseen circumstances;
Dr. Black taking the reins commenced the surgery. In about fifteen minutes of Mr. Schmidt
being suspended, the robotic hypothermia was started upon him. It was found that the rod had
entered the frontal lobe of the lung causing pulmonary damage and had resulted into large cavity,
thus puncturing it.
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31. On completion of the operation, the doctors began the blood infusion process to revive the
patient. The patients heart did not start beating upon infusing the blood back into the system.
CPR was given upon which the patient started reviving gradually. The patient although having
slightly lower pulse rate, had survived the process and thereby was shifted to the ICCU section
of Four Pills to treat him into further recovery and to monitor his vitals.
32. Mrs. Schmidt flew down to Ombudstan, on receiving the news, while Mr. Schmidt was
recovering. On the fifth day post the surgery, suddenly his blood pressure shot up alarmingly.
The doctors rushed to him and tried to stabilize him. To everyones shock, he died within
seconds of the doctors arrival. On investigation of the cause of death, a shocking revelation
came to light, it was discovered that a particular part of the heart had never recovered post the
freezing process of the EPR. The heart though had revived was not functioning optimally. This
part suffered a terminal thermal injury and gradually became brittle. This resulted in
deterioration and the heart was punctured brutally killing him. 33. Ms. Pepper Pots, Mr.
Schmidts niece, a paramedic by profession, studied Mr. Schmidts reports and other documents
handed over to the family along with the body to understand the cause of death and the
procedure followed to treat him. She found that Mr. Schmidt was treated by an experimental
method where he was put to a clinically dead state before his actual death. She concluded that
was a gross violation of the human rights and procedural negligence on part of the doctors at
Four Pills.
34. The Schmidt family then approached the HRO (Human Rights Commission Ombudstan).
With the help of the HRO Mrs. Schmidt approached a group of medical experts who
corroborated with Pepper, on establishment of medical negligence on part of the doctors at Four
Pills and that the ERP methodology of treatment was indeed a violation of Human Rights.
35. Mrs. Schmidt has filed a PIL in the Honble Supreme Court of Ombudstan, praying to ban
the said experimental method of treating casualty victims on grounds that it is against human
rights and also demand compensation for the death of Mr. Schmidt from Four Pills hospital.
36. The Human Rights Commission, understandably, has joined the Government of Ombudstan
as a party to the suit for their involvement, relentless and cavalier attitude towards humanity.

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STATEMENT OF ISSUES

1. WHETHER THE PUBLIC INTEREST LITIGATION PREFERRED BY THE


PETITIONER IS MAINTAINABLE?
2. WHETHER THE USE OF THE EPR METHOD AS PER THE STATES
MANDATE, IS IN VIOLATION TO HUMAN RIGHTS?

3. WHETHER THE RESPONDENT WAS JUSTIFIED IN PERFORMING THE


OPERATION WITHOUT THE CONSENT OF MR SCHMIDT?

4. WHETHER

THE

RESPONDENT

HOSPITAL

WAS

NEGLIGENT

IN

PERFORMING THE EPR METHOD AND SO IS LIABLE FOR THE TORT OF


MEDICAL NEGLIGENCE?

5. IS THE PETITIONER IS DUE FOR COMPENSATION?

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SUMMARY OF PLEADINGS

1. THE PUBLIC INTEREST LITIGATION PREFERRED BY THE PETITIONER IS


NOT MAINTAINABLE.
The PIL preferred by the petitioners is not maintainable as she has vested interests in the
matter. It is a well-established fact that those who have an interest in the matter cannot file a PIL.
The EPR procedure was not harmful or experimental as it had been performed several times over
and robotic use was also a standard practise in Ombudstan which has seen a high success rate
and has saved the lives of many. A PIL should only be filed as for those matters that concern
the public interest as a whole not any person or a group of persons. We humbly submit that the
PIL is not maintainable.
2. THE USE OF THE EPR METHOD AS PER THE STATES MANDATE, IS IN
VIOLATION TO HUMAN RIGHTS
Without doubt, medical technology is indispensable for people's health and better quality of life
in some areas; and contributes billions of dollars to the economy. Some would go so far to say
that the practice of medicine these days is inherently dependent upon health technology.
Developing a new health care technology it is important to recognize its potential impact.
Technology helps physicians to determine which technologies are most apt to benefit the patient,
allowing the physician to recommend a prudent course of action. It is humbly summated that
EPR system was adopted for the benefit of mankind and this system was already been preferred
by many countries with a success rate of 90%, it has saved many lives.
3. THE RESPONDENT IS COMPLETELY JUSTIFIED IN PERFORMING THE
OPERATION ON MR.SCMIDTH WITHOUT CONSENT
It is generally agreed that in an emergency, where an otherwise competent patient is unable to
consent for some reason, doctors may lawfully proceed to treat without consent. Treatment
would be lawful in case of a temporary incapacitated patient in an emergency, as it is in the best
interests of the patient, that is if it is carried out to save a life or to improve condition or deter
deterioration. In a state of an emergency, it would have been highly unreasonable to expect a
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person is sheer pain to give consent or not to give consent to a particular treatment suggested. In
fact, a delay in treatment whilst waiting for consent can cause harm and sometimes even the
death of a patient. Mr Schmidt also did not have the disapproval band which was a distinctive
measure used to determine consent for the treatment or not.
4. THE RESPONDENT WAS NOT NEGLIGENT IN PERFORMING THE EPR
METHOD ON MR.SCHMIDT.
The doctors were not negligent whilst operating upon Mr Schmidt. The patient was in a state of
complete despair. The EPR method had a 90% success rate. In an attempt to save the life of the
patient, this method was used. The use of robotics, a standard practise in Ombudstan, only
increased the precision and accuracy with which the procedure took place, thus increasing the
chances of survival of the patient. Time and again, it has been reiterated by the Court that a
doctor is not a miracle worker; some cases are too far gone to help. This was one such incident.
At all times the respondent hospital has kept up with the standard of care as well as reasonable
care. Thus, they were most definitely not negligent.
5. THE PETITIONER IS NOT ENTITLED TO COMPENSATION
The Petitioner has demanded compensation in their PIL on the grounds that there has been
medical negligence on the part of the respondent hospital. It is important to note that for every
death or injury a doctor would not be liable to pay compensation to the aggrieved party as long
as the prescribed standard of care was upheld. The demand for compensation proves that the
Petitioner is trying to enforce his private interests in the shadow of public interests. Therefore, it
is clear that the petitioner has not come to this court with clear hands.

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ARGUMENTS ADVANCED

1. WHETHER THE PUBLIC INTEREST LITIGATION PREFERRED BY THE


PETITIONER IS MAINTAINABLE?
It is humbly submitted that the PIL raised by the petitioner is not maintainable.
A) THE PETITIONER HAS A PRIVATE INTEREST
The petitioner is the wife of the Late Mr Schmidt. It is surprising that though she claims not to
have any vested interest in the matter she has filed a PIL instead of all the other actions that were
readily available and on top of that also demanded compensation.
We contest that the EPR procedure was not in any way harmful or experimental as it had been
performed several times over in the country of Ombudstan and was based on a hugely successful
method of HRM. The robotic use was also a standard practise in Ombudstan. Also, the use of
robotics ensures precision and accuracy far beyond the scope of the human hands. The death of
Mr Schmidt cannot be blamed on a surgery that has been based on advice of an expert and
methods that have given life to many. Public Interest Litigation is a strategic arm of the legal aid
movement which intended to bring justice. Rule of Law does not mean that the Protection of the
law must be allowed to be abused and misused for the vested interest of a few. 1 For a PIL to
stand, it must be ensured that the person or a group of persons is not just a busy body of
meddlesome interloper and do not have malafide intention of vindicating personal vengeance or
grievance or to resort to blackmailing or considerations extraneous to public interest.2 However,
the person filing the petition must prove to the satisfaction of the court that the petition is being
filed for a public interest and not just as a frivolous litigation by a busy body. 3The value of a PIL
must be upheld and must not be abused by busy bodies for personal opinions.4 Over here, Mrs
Schmidt is aggrieved due to the death of her husband, in haste or out of vengeance she has

State V. Union Of India AIR 1996 Cal 181 at 218


J.S Bindra v. State of Gujarat 2012 (2) GLR 1156
3
Public Interest Litigation, India, available at:
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0bb4201b77a8bd&txtsearch=Subject:%20Jurisprudence (Visited on September 5,2014)
4
State of MP v. Behru Singh ,AIR 2012 SC 1062
2

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The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

decided to resort to the filing of a PIL. Several instances have taken place, where the court has
found that the PIL is motivated by enmity or vested interests and so has dismissed the PIL. 5 We
request the court do to the same in this case.

B) THE METHOD USED WAS DEVISED OUT OF EXPERT OPINION


The method of EPR was formulated by the advice of DR. Tony Stark, an expert in the field of
medicine and the Medical Board of Ombudstan, which was known for striving for excellence in
the field of medicine. As said rightly by Lord Scarman Of course, differences of opinion exist
and continue to exist, in the medical as well as other professions. There is seldom any one
answer exclusive of all others to problems of professional judgement.

Just because one

medical practioner, in this case Ms Pepper Potts, a mere practioner as compared to the Great Dr.
Tony Stark, has a different opinion from the others, a PIL cannot be filed on this basis. The apex
court, on several occasions has stressed that it could not sit in judgement over opinions of
experts. 7 Decisions must not be unreasonable and so it is also unreasonable to assume that just
because one party disagrees with another view, his/ her view, is unreasonable.8

C) THERE WAS A MISUE OF PIL


Mrs Schmidt along with the Human Rights organisation filed a PIL as they were aggrieved by
the death of Mr. Schmidt and thought of it as a human rights violation. This is a gross misuse of
a PIL. According to the court, the right to effective justice is given to all, but often this right is
misused. It is the courts decision, in the light of the facts, to entertain or to dismiss a PIL. Often
meddlesome bystanders and social pollutants create new problems of non redressed grievances,
and the court should make an earnest effort to take up only those cases which affect the public at
large.9 Nothing in this PIL is for the good of the people at large. In fact, this PIL has been
motivated by vested interests and with an aim to receive a lump sum as compensation. There are
5

S. Bhoopathy v Govt of Tamil Nadu (2012) I MLJ 554


Maynard V. West Midlands Regional Health Authority (1985) 1 All ER 635
7
Networking of Rivers, In Re 2012(3) SCALE 74
8
Supra note 1
9
Ayaaubkhan Noorkhan Pathan V. State of Maharashtra ,AIR 2013 SC 58
6

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The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

several other methods for redressal which is made available to the people of Ombudstan, such as
representative action, or a simple suit under the Consumer Act. The PIL in question here is in
fact, misused and out to cause unnecessary disturbances.
2. WHETHER THE USE OF THE EPR METHOD AS PER THE STATES MANDATE,
IS IN VIOLATION TO HUMAN RIGHTS?
It is humbly submitted to the Honble Supreme Court of Ombudstan that the EPR methodology
was not in violation of any human right.
A) MEDICAL ADVACMENT-A WELCOME CHANGE
Rapidly changing medical technology and availability of high technology diagnostic and
therapeutic equipment together with changing practice pattern of doctors has revolutionized the
way health care is being delivered today.
Without doubt, medical technology is indispensable for people's health and better quality of life
in some areas; and contributes billions of dollars to the economy. Some would go so far to say
that the practice of medicine these days is inherently dependent upon health technology. This is
probably based on the observations that clinicians use a wide variety of technologies in
diagnosing, treating and assessing the care of their patients. Today's medical technology is more
advanced, more effective, and in many cases, more costly than ever before. Furthermore there is
an ever increasing demand for high technology diagnostic and therapeutic health care facilities
and their availability may come into conflict with medical necessity, social justice and cost
effectiveness.10
Developing a new health care technology it is important to recognize its potential impact.
Technology helps physicians to determine which technologies are most apt to benefit the patient,
allowing the physician to recommend a prudent course of action. Technology assessment should
encourage scepticism of new technology, causing the clinician to be more rigorous about

10

Information on medical advancements, available at: http://www.hkcem.com/html/publications/Journal/20024/231-236.pdf (Visited on September 3,2014)

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The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

accepting the latest invention. It will substantially contribute to better utilization of the scare
health care resources.11
The growth in health care technology is ubiquitous and has far reaching consequences both for
users and providers. Future progress depends on today's investment in research, development,
and education. We cannot leave such urgent issues to determine themselves but rather must
actively collaborate to ensure a stable healthcare system.12
Although sophisticated medical technology is already available in health systems in developed
countries, further advances are constantly being made. As a result of the addition of medical
nanotechnology to existing knowledge of molecular and cellular biology, it seems likely that
new, more personalized, more accurate and more rapid diagnostic techniques will be devised in
the future, as well as new treatments that are also more personalised and promote regeneration of
the organism.13 Thus, change and new technologies are welcome in the field of medicine. The
use of the latest technology can save the lives of many. The EPR methodology also, was one
such new technology. Having a 90% success rate, it has in fact saved the lives of many. It is a
life giver and not violative of human rights.
B) MEDICAL ADVANCEMENT IN OMBUDSTAN.
On the 64th Republic day of the country Prime Minister, Mr. Robert Baratheon stated that the
country will have to proceed forward on a technologically navigated path. Standing by this
commitment to the nation, the Government of Ombudstan started funding and implementing
high technologically oriented projects in almost every field imaginable. Foresight was made the
new mantra. The main advancements and focus were in the fields of medical sciences, education,
pharmacy and Information-Technology sector. The Government and the entire bureaucratic
hierarchy were convinced that these four main areas had to be overhauled from inside out for the
country to be modernized and to provide a better standard of living to the citizens. Sustainable
support of the Government and a focused vision on public health, rapid advancements were
made in the field of pharmacy and medical sciences. Doctors and biomedical researchers
11

Perez CA. Methodology of Research and Practice for the Third Millennium: Evidence-Based Medicine. 25(3):285308. (Rays 2000)
12
Supra note 10
13 I
nformation on Science and Technological Advancements, available at:
www.sciencedaily.com/releases/2009/06/090616080133.htm (Visited on September 3,2014))4

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The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

working in tandem contrived newer methods for the treatment which could save lives and cause
lesser collateral. Advanced form of medicines and medical treatments were devised upon and
implemented in various parts of the country, which in turn would gradually expand and be
implemented on a national scale. As seen above, technological advancements are a welcome
change in a country. They seek to protect and promote the lives of many. New advancements
help change the older barbarian advancements by adding precision and accuracy.

C) EPR METHOD WAS NOT AGAINST HUMAN RIGHTs


To treat such accident victims, who, normally would not have survived owing to their massive
blood loss and the time taken to get them to the hospital due to traffic and road conditions in the
country, Dr. Bruce Banner, The Union Health Minister instructed the directors of Four Pills and
other top medical institutions to work upon Emergency Preservation and Resuscitation (EPR)
method of treatment and the ways and means to implement it upon humans. A legal framework
was created if this method proved to be a success. Dr. Black and her team worked hard towards
the implementation of the EPR method in humans. Forwarding a drafted proposal, Dr. Natasha
Black and her team met Dr. Bruce Banner and other officials of the Health Ministry and incepted
a proposal that would be forwarded to the OCMR (Ombudstan Council of Medical Research).
After a detailed analysis the proposal was accepted by the Reviewing Committee of the OCMR.
It is to be noted that this method was introduced by government to save the life of people in the
country which has the largest number of deaths in road accidents. A global status report on road
safety estimated more than 2, 31,000 people die in road mishaps and incidents, alone in
Ombudstan every year. It is also to be noted that a three month long comprehensive peoples
awareness program was taken up by the Government so that each individual was made aware of
the experiment and those who wished against being treated by the EPR method could avail the
band facility free of cost. It was decided that this method would only be conducted on victims
who do not have the band at the time they were bought to the hospital. Also, it was decided that
only in extreme cases where there is no other option left for the doctors, but to suspend the
patient with hypothermia, shall this method be applied. It is to be noted here that Government
and Doctors of Four Pill Hospital had made every effort to make this treatment aware among the
people and they have given option not to adopt this treatment. In this case Mr. Schmidt came to
Four Pill Hospital in a very critical situation where he had a head injury and a sharp rod from the
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The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

scaffolding pierced his body. To save the life of Mr. Schmidt Doctors decided to perform this
surgery which at that time they thought suitable for the life of Mr. Schmidt. Doctors in
complicated cases have to take chance even if the rate of survival is low 14. Medical science has
conferred great benefits on mankind, but these benefits are attended by considerable risks. Every
surgical operation is attended by risks. We cannot take the benefits without taking risks. Every
advancement in technique is also attended by risks15.It is humbly summated that EPR system
was adopted for the benefit of mankind and this system was already been preferred by many
countries and institution and experiments was done on various animals several time. In every
operation there is a risk involved and on the basis of risk we cannot declare a treatment an human
right violation.

3. WHETHER THE RESPONDENT WAS JUSTIFIED IN PERFORMING THE


OPERATION WITHOUT THE CONSENT OF MR SCHMIDT?
A) THE OPERATION WAS AN EMMERGENCY AND A NECESSITY
Mr Schmidt was brought into the hospital in a state of despair as he had been injured with the
scaffolding that had pierced his body. It is generally agreed that in an emergency, where an
otherwise competent patient is unable to consent for some reason, doctors may lawfully proceed
to treat without consent. As Lord Bridge observed rightly, Doctors have been relying on this for
years and moreover, if the law did not provide for this it wouldve been absurd. Doctors and
health care professionals would face a great dilemma if this wasnt provided for Treatment
would be lawful in case of a temporary incapacitated patient in an emergency, as it is in the best
interests of the patient, that is if it is carried out to save a life or to improve condition or deter
deterioration.16In a state of an emergency, it would have been highly unreasonable to expect a
person is sheer pain to give consent or not to give consent to a particular treatment suggested. In
fact, a delay in treatment whilst waiting for consent can cause harm and sometimes even the
death of a patient.17 Mr Schmidt also did not have the disapproval band which was a distinctive

14

Kusum Sharma & Others v Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480

15

Supra 5
Micheal A Jones ,Medical Negligence 638( Sweet and Maxwell, Oxford Publication)
17
M. Parikh,Parikhs Textbook of Medical Jurisprudence (CBS Publication, 6th edition)
16

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The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

measure used to determine consent for the treatment or not. Necessity will be a viable defence in
case a pleading occurs. 18
B) COMPETENCY TO GIVE CONSENT
A mere yes to a said treatment is not considered consent. It is important that the patient its
competent to give the kind of consent needed. For this, he or she has to be competent enough to
understand the procedure and understand the risks involved.

19

Mr Schmidt had had a terrible

head injury following which he was brought into the hospital for treatment. In a state of pain and
a head injury, it was not reasonable for the defence in risking losing a life in order to get consent.
A doctor can legally operate upon an individual who is incapable of giving his consent, if the
treatment is in the best of his interests. Thus in this case, implied consent was sought. When
consent is not express but signifies in another form, whether conduct or otherwise, it is implied
consent.20
C) TREATMENT WAS IN THE BEST INTEREST
The EPR treatment had received the assent of the Ministry of Health of the State of Ombudstan
.The treatment is justified if it is in the best interest of the patient and can possibly save his or her
life. This theory is supported with the justification that if in case the patient was to choose, he
wouldve chosen this technique in order to save his life. Thus, it is humbly submitted that the
defence acted out of duty and good faith and made an earnest effort to save the life of Mr.
Schmidt.

18

JK Mason and GT Laurie, Law and medical ethics (Oxford University Press, 7th Edition)
Jonathan Herring, Medical law and Ethics (Oxford publications, 2nd edition)
20
Dr. Lily Srivastava, Law and Medicine 67 (Universal Publications)
19

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The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

4. WHETHER THE RESPONDENT HOSPITAL WAS NEGLIGENT IN PERFORMING


THE EPR METHOD AND SO IS LIABLE FOR THE TORT OF MEDICAL
NEGLIGENCE?
A) EXERCISED REASONABLE CARE
Mr Schmidt was brought to the respondent in a state of utmost despair. Having had scaffolding
pierced his body, he required proper treatment immediately. The EPR technique was based on
the knowledge and advice of Dr. Tony Stark a physician who was awarded the highest honour of
the Red Cross. The method had been practised and had several trials on pigs and dogs before
being used on human beings. Thus, the respondents performed this method on Mr Schmidt. A
tort of negligence consists of a legal duty to take reasonable care and breach of that duty by the
respondent causing damage to the claimant.21 In law, a test for the breach of duty in the tort of
negligence is if the respondents conduct was reasonable in all circumstances of the case. If it was
reasonable then no negligence liability arises. A surgeon does not undertake that he will perform
a cure; nor does he undertake to use the highest level of knowledge as there might be people who
are more learned then he. But he does undertake to take a level of a fair degree of skills and
knowledge and of course, a proper degree of skill. The courts would indeed be slow if the doctor
has performed his duties with care and caution.22 Thus, in negligence the question should not be
on the injury complained of, but it should be if he has exercised skill, knowledge and care23,
which the respondent surely has. Also, the respondent is not liable if the damage occurred is not
a foreseeable consequence of his conduct24. The respondents, at every stage of the procedure
have made sure that they take utmost care. As long as the doctors have performed their duties
and exercised an ordinary degree of professional skill and competence, they cannot be held
guilty of medical negligence.25Not risking ambiguity in the procedure they even adopted a
robotic procedure which was the standard practise in the State of Ombudstan.

21

Lochgelly Iron Co. v. MMullan (1934) A.C 1 at 25, Lord Wright


Acthutrao Haribhau Khodwa v. State of Maharashtra ,AIR 1996 SC 2377
23
Lanphier v. Phipos (1838) 8 C & P 475
24
Bolton v Stone (1951) A.C 850 initself
25
Kusum Sharma & Others v Batra Hospital & Medical Research Centre & Others (2010) 3 SCC 480
22

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The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

B) ADOPTED A STANDARD PROCEDURE


Mr Schmidt was in a very serious condition when brought to the respondent. There was an
impetuous need to operate on Mr Schmidt so that the respondents could save his life. Not
wasting any time, they operated on him using the EPR method which was based on the
successful HRM method that had saved the lives of many. The use of robots only heightened the
level of precision and accuracy in the surgery since the use of robotics was a standard practise in
the state of Ombudstan. Ms. Pepper Potts also a medical practioner, overcome by the grief of the
death of her Uncle, alleged that the respondent was negligent.The skill of a medical practioner
might differ from doctor to doctor. The very nature of this profession is such that there may be
more than one course of treatment which may be advisable for treating a patient. 26 As laid down
in the Bolams

27

case, a doctor who acts in accordance to a set practise accepted as proper by a

responsible body is not negligent merely because there is a body of opinion that takes a contrary
view. There may be more than one set standard, and if the practioner conforms to any one of
them, he is not negligent. In Jacob Mathew v State of Punjab,28 the Honble Supreme Court
said: The water of the Bolam29test has ever since flown and passed under several bridges,
having cited and dealt with in several cases and several judicial pronouncement, one after the
other, and has continued to be well received by every shore it has touched as a neat and clean and
a well-condensed one. The test holds well in its applicability in India30The principles stated
have been reiterated in Martin DSouza v Mohd. Ishfaq31 and in INS Malhotra v Dr. A. Kripalni.
Moreover, there is also an obligation to keep up to date with new methods. The courts should be
careful not to make a finding of negligence merely because something has gone wrong or the
patient has sustained injury. In Wilsher v. Essex Area Health Authority32 it was held that If the
decision to embark on a treatment was at all justifiable,the court should be particularly careful
not to impute negligence simply because something has gone wrong. It has been held time and
again in cases like Smt. Neeti Saluja v Dr Batra33 and Smt Afsana Bano alias Baby v. Dr Manju

26

Supra note 19
Bolam v Frien Hospital Management Committee, (1957) 2 All ER 118
28
(2005) 6 SCC 1
29
Supra note 22
30
State of Punjab v. Shivaram (2005) 7 SCC 1
31
(2009) 3 SCC 1
32
(1987) Q.B 730 at 749
33
2014(3)CRP 44 (NC)
27

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The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014

Verma34 that a doctor would not be held negligent if he is acting in accordance with a standard
practice just because another practioner differs from his view. Also, since research scientists are
usually better informed about new discoveries than a practioner35, it is more viable to appreciate
and understand the view of the respondents in using the EPR technique than Ms Pepper Potts
opposing it. Simply because a patient has not favourably responded to a treatment given or
because a surgery has failed, the doctor cannot be held liable per se.36
It is humbly submitted to the Honble Supreme Court of Ombudstan to dismiss the PIL as there
was no negligence involved.

5. IS THE PETITIONER DUE FOR COMPENSATION?


The petitioners have demanded compensation in their PIL on the basis that there has been
negligence on the part of the respondents. Though we are sorry for the petitioners loss, we
contend that there has been no such negligence and so we are not liable to pay compensation to
the petitioner. It is important to note that every doctor is not expected to be a miracle worker
guaranteeing a cure or to be a man of very highest skill in his calling.37 Thus, for every death or
injury a doctor would not be liable to pay compensation to the aggrieved party as long as the
prescribed standard of care was upheld.38 Further, the demand for compensation proves that the
Petitioner is trying to enforce his private interests in the shadow of public interests. Therefore, it
is clear that the petitioner has not come to this court with clear hands.
However, if the Petitioner still feels that he has a valid claim against the respondents for the
alleged negligence, he is free to up roach the appropriate forum to claim his compensation.

34

2014(3) CRP 252 (NC)


Neuzen v. Kron (1993) 103 D.L.R (4Tth) 473 at 497-498, BCCA
36
Jacob Mathew v State of Punjab 2005(3) CRP 70 SC
37
Bolam v Friern Hospital Management Committee: (1957) 2 All ER 118 at 121
38
Crawford v. Board of Governors of Charing Cross Hospital (1953) 2All Er 210 at 221
35

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PRAYER FOR RELIEF

THEREFORE, in light of the issues raised, arguments advanced, pleadings and authorities cited
it is most humbly and respectfully prayed before this that this Honble Court to adjudge that:

1. The Public Interest Litigation preferred by the Petitioner was not maintainable.

2. The EPR methodology used for trauma care is not violative of Human Rights.

3. Pass any other order that this Honble Court may please for the benefit of society and the
citizens of Ombudstan, in the interest of Justice, Equity and Good Conscience.

Sd/
(Counsel for the Respondents )

28
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