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BEFORE

THE DISTRICT CONSUMER DISPUTE REDRESSAL FORUM

RANCHI

UNDER SECTION 11 OF THE CONSUMER PROTECTION ACT, 1986

IN THE MATTER OF-

MR. SURESH (CLAIMANT)

VS.

DR. RAO AND KANKE GENERAL HOSPITAL (RESPONDENTS)

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

KAMENDRA RAY

ROLL- 328, SECTION - B

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI


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HEALTH LAW – WRITTEN SUBMISSIONS
-TABLE OF CONTENTS-

TABLE OF AUTHORITIES III

STATEMENT OF JURISDICTION IV

STATEMENT OF FACTS V

STATEMENT OF ISSUE VI

SUMMARY OF PLEADINGS VII

ARGUMENTS ADVANCED VIII

PRAYER XIII

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-TABLE OF AUTHORITIES-

I. BOOKS REFERRED

1. RAO, Y.V, LAW RELATING TO MEDICAL NEGLIGENCE, 3RD EDITION, ASIA LAW HOUSE

II. STATUTES REFERRED

1. CONSUMER PROTECTION ACT, 1986

III. WEBSITES REFERRED

1. www.manupatrafast.in
2. www.scconline.com
3. www.lexisnexisindia.com

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LIST OF CASES CITED

A.S Mittal v. State of U.P AIR 1989 SC 1570


Achut Rao Haribhau Khodwa v. State of Maharashtra and Others AIR 1996 SC 2377
Consumer Unity and Trust Society v. Chairman and M.D, Bank of Baroda 1995 (2) SCC 150
Dr C.P Sreekumar, M.S (Ortho) v. S. Ramanujam (2009) 7 SCC 130
Jacob Mathew v. State of Punjab and Another AIR 2005 SC 3180
K.S Bhatia v. Jeevan Hospital and Another 2004 CTJ 175 (NC) (CP)
Leela Devi v. Dr. Shatrughan Ram and Another 2012 (4) CPJ 194 (NC)

Marble City Hospital and Research Centre v. V.R Soni 2004 (2) CPJ (102) (Rajasthan)

Michael Hyde and Associates v. J.D. Williams & Co. Ltd. [2001] P.N.L.R. 233

Nizam Institute of Medical Sciences v. Prasanth S. Dhanaka and Ors 2009 (2) CPJ 61 (SC)
Poonam Verma v. Ashwin Patel and Ors AIR 1996 SC 2111

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-STATEMENT OF JURISDICTION-

The Respondents stand before this tribunal under sec 111 of the Consumer Protection Act,
1986.

1
11. JURISDICTION OF THE DISTRICT FORUM. –

(1) Subject to other provisions of this Act, the District Forum shall have jurisdiction to entertain
complaints where the value of the goods or services and the Compensation if any,
claimed 1[does not exceed rupees five lakhs].

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,
-

(a) The opposite party or each of the opposite parties, where there are more than one, at
the time of the institution of the complaint, actually and voluntarily resides
or 2[carries on business or has a branch office, or] personally works for gain; or

(b) Any of the opposite parties where there are more then one, at the time of the institution
of the complaint, actually and voluntarily resides, or 3[carries on business or has a
branch office], or personally works for gain, provided that in such case either the
permission of the District Forum is given, or the opposite parties who do not reside,
or 4[carry on business or have a branch office], or personally works for gain, as the
case may be, acquiesce in such institution; or

(c) The cause of action, wholly or in part arises.

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STATEMENT OF FACTS

 Mr. Suresh an employee of BAU met with an accident while going to his office by a
rash and negligent truck driver, from there he was rushed to Kanke General Hospital.
 Dr. Rao diagnosed him and sent him for X-Ray, CT Scans, blood tests, etc.
 The examinations were conducted on an emergency basis and it was discovered that
he suffered from multiple fractures on his left arm and blood clot in his temporal lobe.
 The doctor advised him to go through an emergency surgery by Dr.R.S.Dwivedi, a
neuro surgeon and an operation on his left arm by Dr. Rao on the same day and both
the surgeries were successful.
 He was released on 20 February, 2017 with a plaster to be removed on 15th March,
2017.
 Mr. Suresh resumed his job on 26th February and soon went outside the State for an
international conference.
 When he returned back on 5 March 2017 to Ranchi he was suffering from severe
th

fever and pain in his left arm and went to the Medanta Hospital because Dr Rao was
on leave.
 Dr. Srivastava at Medanta Hospital, examined him and immediately sent him for an
X-Ray. The X-Ray report confirmed that the plate which was affixed on his left arm
was not placed properly resulting in infection to his left arm. Dr Srivastava also
suggested that even if the infection is cured his left arm will become short by 1/4 th
inch as because even replacement of the plate will not be able to rectify the previously
set plates position.
 Hence this petition for compensation.

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-ISSUES BEFORE THE COURT-

I. WHETHER THE RESPONDENTS WERE NEGLIGENT IN TREATMENT OF THE

CLAIMANT?

II. WHETHER THE RESPONDENTS ARE LIABLE TO PAY COMPENSATION?

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-SUMMARY OF ARGUMENTS-

I. THAT THE RESPONDENTS WERE NOT NEGLIGENT IN THE TREATMENT OF THE

CLAIMANT.

It is humbly submitted that the respondents were not negligent in the treatment of the
claimant. The respondents practiced due skill and care to administer treatment and the
undesired end result was not due to negligence of the respondents. The chain of
causation suggests various factors including conduct of the claimant itself to have
caused the end result.

II. THAT THE RESPONDENTS ARE NOT LIABLE TO PAY COMPENSATION.

The question of compensation itself does not arise as the respondents were not
negligent. For compensation to come into play, there must be negligence and there
must be a consequent injury.

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-ARGUMENTS ADVANCED-

I. WHETHER THE RESPONDENTS WERE NEGLIGENT IN THE TREATMENT OF THE


CLAIMANT?

It is humbly contended before this hon'ble court that there was no negligence on the part of
the respondents in administering treatment to the claimant.

A. CONDUCT OF RESPONDENTS NOT NEGLIGENT

In the law of negligence, professionals such as lawyers, doctors, architects and others are
included in the category of persons professing some special skill or skilled persons generally.
Any task which is required to be performed with a special skill would generally be admitted
or undertaken to be performed only if the person possesses the requisite skill for performing
that task. Any reasonable man entering into a profession which requires a particular level of
learning to be called a professional of that branch, impliedly assures the person dealing with
him that the skill which he professes to possess shall be exercised and exercised with
reasonable degree of care and caution. He does not assure his client of the result. A lawyer
does not tell his client that the client shall win the case in all circumstances. A physician
would not assure the patient of full recovery in every case. A surgeon cannot and does not
guarantee that the result of surgery would invariably be beneficial, much less to the
extent of 100% for the person operated on. The only assurance which such a professional
can give or can be understood to have given by implication is that he is possessed of the
requisite skill in that branch of profession which he is practising and while undertaking the
performance of the task entrusted to him he would be exercising his skill with reasonable
competence. This is all what the person approaching the professional can expect. Judged by
this standard, a professional may be held liable for negligence on one of two findings:
either he was not possessed of the requisite skill which he professed to have possessed,
or, he did not exercise, with reasonable competence in the given case, the skill which he
did possess.

The standard to be applied for judging, whether the person charged has been negligent or not,
would be that of an ordinary competent person exercising ordinary skill in that profession. It
is not necessary for every professional to possess the highest level of expertise in that branch

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which he practices. The court reffered to Michael Hyde and Associates v. J.D. Williams &
Co. Ltd.2, where CA, Sedley L.J. said that where a profession embraces a range of views as to
what is an acceptable standard of conduct, the competence of the defendant is to be judged by
the lowest standard that would be regarded as acceptable.3

It cannot be doubted that Respondent no.1 possessed the requisite skill that he professed to
have possessed, as he held a master's in orthopaedics. In the event of no evidence to the
contrary, requisite skill cannot be questioned4. It can also not be doubted that due care was
taken with reasonable competence as the Claimant was kept under observation and care from
20st February, 2017, when he underwent the surgery, to 20th February, 2017, when he was
discharged. The Claimant made no complaints during this time.

B. BURDEN OF PROOF ON THE CLAIMANT

The burden of proving medical negligence lies on the Claimant. Negligence has to be proved,
it cannot be presumed.5 It is for the complainant to allege and prove negligence by expert
evidence or by producing medical literature.6

Mistakes happen in the medical profession despite exercise of reasonable skill and care. The
law recognizes the dangers which are inherent in surgical operations. 7 Doctors do not
undertake that they will positively cure a patient nor do they undertake to use the highest
possible degree of skill. But he definitely undertakes to use a fair reasonable and competent
degree of skill.8

In order to decide whether negligence in any particular case is established, the alleged act or
omission or course of conduct complained of must be judged not by ideal standards nor in the
abstract but against the background of the circumstances in which the treatment in question
was given and the true test for establishing negligence on part of the the doctor is as to
whether he has been proved guilty of such failure as no doctor of ordinary skill would be
guilty of it acting with reasonable care. Merely because a medical procedure fails, it cannot
be stated that the medical practitioner is guilty of negligence unless it is proved that the
medical practitioner did not act with sufficient care and skill and the burden of proving the
2
[2001] P.N.L.R. 233
3
Jacob Mathew v. State of Punjab and Another, AIR 2005 SC 3180 (Para 19)
4
Dr C.P Sreekumar, M.S (Ortho) v. S. Ramanujam, (2009) 7 SCC 130
5
Marble City Hospital and Research Centre v. V.R Soni, 2004 (2) CPJ (102) (Rajasthan)
6
K.S Bhatia v. Jeevan Hospital and Another, 2004 CTJ 175 (NC) (CP)
7
A.S Mittal v. State of U.P, AIR 1989 SC 1570
8
Poonam Verma v. Ashwin Patel and Ors, AIR 1996 SC 2111

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same rests upon the person who asserts it. There is no question of warranty or undertaking of
perfection of a skill.9

The burden is on the Claimant and in certain cases shifts to the opposite party but only once
the initial burden has been discharged by the Claimant by making out a case of negligence on
part of the doctor or hospital. Mere allegation does not shift the burden of proof.10

C. CHAIN OF CAUSATION BROKEN

At least three weighty considerations can be pointed out which any forum trying the issue of
medical negligence in any jurisdiction must keep in mind. These are:

(i) That legal and disciplinary procedures should be properly founded on firm, moral and
scientific grounds;

(ii) That patients will be better served if the real causes of harm are properly identified and
appropriately acted upon; and

(iii) That many incidents involve a contribution from more than one person, and the tendency
is to blame the last identifiable element in the chain of causation - the person holding the
'smoking gun'.11

The chain of events leading to the present case is complex, the Claimant had met with an
accident and brought to Kanke General Hospital, in lieu of the situation diagnostic tests had
to be done on an emergency basis. Upon the advice of respondent no.1, the claimant
underwent surgery on the same day and was discharged on the 20th of February, 2017 with a
plaster on his arm which was to be removed on 15th of March, 2017. The Claimant joined
work on 26th February, 2017 and then proceeded to leave Jharkhand to attend an
international conference. The Claimant returned on 5th March, 2017 with severe fever and
pain in his left arm. The Claimant consulted Dr. Srivastava in Medanta Hospital, who after
diagnostic tests (X-Ray) confirmed that the plates in the Claimant's arm were not in a correct
position leading to infection, and that even if the position of the plate was to be rectified, it
would lead to loss of 1/4th inch of the arm.

9
Achut Rao Haribhau Khodwa v. State of Maharashtra and Others, AIR 1996 SC 2377
10
Nizam Institute of Medical Sciences v. Prasanth S. Dhanaka and Ors, 2009 (2) CPJ 61 (SC)
11
Jacob Mathew case supra, note 2 (Para 32)

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It was only after the Claimant went on the conference that the complaints began. It is very
well possible that the clamps changed position while the Claimant was straining his arm in
transit or that he did not take reasonable care to protect his arm. Such cases are not rare.

In, Leela Devi v. Dr. Shatrughan Ram and Another12, a case with very similar facts, where
the patient sustained fractures on her left arm following an accident. Her arm had to be fixed
with the help of plates and screws. The respondent referred her to AIIMS following a slow
recovery, which the patient ignored and went to safdarjung hospital after 2 months, where her
arm had to be operated upon to perform bone grafting in order to set the plates again.
Discharge Summary from Safdarjung Hospital, it was stated that she was operated for lower
1/3 of shaft of Humerous which led to flexon & Extension Deformity of elbow and this had
occurred because of implant failure due to improper fixation. It was concluded that there was
no medical negligence in the instant case. Admittedly, the Respondent who is a well-qualified
orthopaedic doctor had after due consideration including proper diagnosis and using his best
professional judgment conducted a conservative surgery which involved fitting the screws
and plating which in a majority of cases results in union of the bone joints.

II. WHETHER THE RESPONDENTS ARE LIABLE TO PAY COMPENSATION?

It is humbly contended before this hon'ble court that the question of compensation does not
arise as the conduct of the Respondents was not negligent.

A. NEGLIGENCE NOT ATTRIBUTABLE TO RESONDENTS

Negligence is absence of reasonable or prudent care which a reasonable person is expected to


observe in a given set of circumstances. But the negligence for which a consumer can claim
to be compensated under this sub-section must cause some loss or injury to him. Loss is a
generic term. It signifies some detriment or deprivation or damage. Injury too means any
damages or wrong. It means, 'invasion of any legally protected interest of another'. 13

B. NO COMPENSATION TO BE PAID

Thus the provisions of Section 14(1)(d) are attracted if the person from whom damages are
claimed is found to have acted negligently and such negligence must result in some loss to

12
2012 (4) CPJ 194 (NC)
13
Infra, note 13

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the person claiming damages. In other words, loss or injury, if any, must flow from
negligence. Mere loss or injury without negligence is not contemplated by this Section.14

14
Consumer Unity and Trust Society, Jaipur v. Chairman and M.D, Bank of Baroda, 1995 (2) SCC 150

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-PRAYER-

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Petitioner humbly prays that the Forum be pleased to adjudge, hold and declare:

1. That, the respondents be found not guilty of negligence and hence no compensation
be asked from them.
2. That, the claim be dismissed.

And pass any order that this Forum may deem fit in the interest of equity, justice and good
conscience.

And for this act of kindness, the counsel for the respondent shall duty bound forever pray.

Sd/-

(Counsel for Respondents)

KAMENDRA RAY

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