Professional Documents
Culture Documents
LIME 2017 Winning Moot Court Memorial
LIME 2017 Winning Moot Court Memorial
V.
Mr MANINDER …….RESPONDENT
CLUBBED WITH
Mr MANINDER …….APPELLANT
V.
TABLE OF CONTENTS
1
List of abbreviations………………………………………………………………………… 3
Statement of Issues…………………………………………………………………………….9
Arguments .................................................................................................................................12
Prayer………………………………………………………………………………………......22
2
LIST OF ABBREVATIONS
ABBREVIATION DEFINITION
Art Article
AIR All India Reporter
H.C. High Court
i.e. Id est (That is)
ILR Indian Law Reporter
IJCL Indian Journal of Constitutional Law
MLJ Madras Law Review
NPR National Population Register
PIL Public Interest Litigation
S.C. Supreme Court
UK United Kingdom
V. Versus
CIC Central Information Commission
INDEX OF AUTHORITIES
CASES CITATIONS
1. Ms. Nisha Priya Bhatia Vs Institute of Human Behaviour and Applied Science Govt of
National Capital Territory of Delhi
2. Rajappan Vs. Sree Chitra Tirunal Institute for Medical Science and Technology
[ILR2004(2)Kerala150]
3
4. S.A.Quereshi v Padode memorial Hospital and Research Centre II 2000. CPJ
463 (Bhopal)
5. Dr. Shyam Kumar v Rameshbhai, Harmanbhai Kachiya 2002;1 CPR 320, I (2006) CPJ
16 (NC)
6. Force v. M Ganeswara Rao 1998;3 CPR 251; 1998 (1) CPJ 413 (AP
SCDRC)
7. V P Shanta v. Cosmopolitan Hospitals (P) Ltd 1997;1 CPR 377 (Kerala SCDRC)
8. Devendra Kantilal Nayak v Dr. Kalyaniben Dhruv Shah 1996;3 CPR 56; I (1997) CPJ
103; 1998 CCJ 544 (Guj)
9. Meenakshi Mission Hospital and Research Centre v. Samuraj and Anr., I(2005)
CPJ (NC)
10. Dr. Tokugha Yeptomi V Appollo Hospital Enterprises Ltd and Anr III 1998
CPJ 132 (SC)
11. Raghunath Raheja v Maharashtra Medical Council, AIR 1996 Bom 198
13. CIVIL APPEAL No.692 of 2012 Advanced Medicare & Research Institute Ltd. Vs. Dr.
Kunal Saha & Ors
3. Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002
4
BOOKS AND JOURNALS
1. https://www.colleran.com/legal-blog/what-happens-when-patient-is-given-too-much-
anesthesia/
2. http://accessanesthesiology.mhmedical.com/book.aspx?bookid=353
3. https://brain-surgery.com/what-are-the-side-effects-of-brain-surgery/
STATEMENT OF JURISDICTION
1. In the present matter, one Special Leave Petition and one Appeal have been clubbed
together.
2. Mr. Maninder. The Petitioner in the case has filed an Appeal while Kundoor Group of
Hospitals Pvt Ltd (KGHPL) have filed Special Leave Petition under Article 136 of the Indian
Constitution and and hence both have approached the Hon’ble Supreme Court.
5
3. The present memorandum sets forth the facts, contentions, and arguments in the present
case. The parties shall accept any judgements of the court as final and binding upon them, and
STATEMENT OF FACTS
State.
2. Mr. Maninder was suffering from severe headache from the last few weeks for which he
initially went for conventional free medication, from which he did not get relief.
6
3. Being distressed, Mr. Maninder subsequently approached Kundoor Group of Hospitals
Pvt Ltd, (KGGHPL hereinafter referred as Respondent, where Dr. Krishna suggested several
medical.
4. Based on the report of the tests conducted on Mr. Maninder, he was advised to undergo
neurosurgery. Mr Maninder was further informed about the nature of problem and course of
medical treatment.
5. Mr. Maninder was informed about the expected expenditure of Rs 1,70,000/-(one lakh
and seventy thousand only) to which he and his relatives later on consented. The fees was sought
11.04.14 after the operation. He expressed heavy discomfort and found that the lower part of the
7. Authorities of KGHPL were informed on the same day about Mr Maninder’s condition,
8. Not finding that the condition of Mr Maninder is improving even after few days, the
relatives were force to shift Mr Maninder to Government Hospital who sought all medical and
9. The Respondent-KGHPL refused to part with medical documents in the critical time.
subsequently the Government Hospital conducted various tests and diagnosed that the paralysis
of the lower part of the Maninder’s body was due to the administration of excessive anesthesia
10. Mr. Maninder was discharged after few weeks from Government Hospital and was
7
11. Mr Maninder filed the Petition in National Commission for seeking compensation of Rs
1.5 crore alleging medical negligence by KGHPL which had caused him undue hardship, mental
agony, and irreparable loss restricting him to wheel chair. The National Commission gave him
12. Additionally, application under RTI Act was filed by the Petitioner seeking copies of
medical records and the case sheet, which were refused by KGHPL.
20. Owing to refusal of State Information Commission to grant request of Mr. Maninder’s
RTI application, Petitioner filed a writ petition in Kundoor HC, where KGHPL was ordered to
22. The Respondent-KGHPL had filed Special Leave petition in Supreme Court against the
order of High Court, While Mr. Maninder also filed an appeal against the order of National
23. Matters being related, the Hon’able Supreme Court has decided to club the two appeals.
1. Whether the Petitioner was entitled to seek his personal medical documents and
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3. Whether the meagre compensation awarded by the National Consumer Commission is
highly disproportionate to the injuries and mental agony suffered by the Petitioner and if Yes,
Whether the Petitioner is entitled to the relief of Rs 1.5 Cr compensation on the ground of severe
SUMMARY OF ARGUMENTS
1. The Petitioner is a Citizen of India and thus has an in-defeasible right to obtain
information pertaining to his own treatment in terms of right to have his medical records, which
9
have a duty to provide the same under the Indian Medical Council (Professional conduct,
2. The present Special Leave Petition filed by the Petitioner against the judgement of
Hon`ble High Court of Delhi is devoid of merits and is thus liable to be dismissed forthwith. The
Hon`ble High Court of Kundoor has interpreted the provisions and intention article 19 and 21 of
the constitution and has allowed the writ of the Respondent under article 226 thereby directing
3. The Petitioner wanted to avail the services of the Hospital and thus had paid the fee and
other charge to the Hospital concerned on account of his personal treatment and was thus well
covered under the provisions of of Section 2(d) of Consumer Protection Act 1986.
4. It is a matter of fact by the tests conducted in the Government Hospital that the paralysis
of the lower part of the Petitioner`s body was due to the administration of excessive anesthesia
during the operation conducted in the Hospital with the further diagnose that the Petitioner would
not be normal in the near future, therefore, the Respondent Doctor had committed an act of gross
5. The Patient in the present case has suffered severe disability owing to the medical
negligence by the Hospital/Doctor and it is settled by law that the Medical negligence by doctors
and hospitals must be held liable for the deficiency in services, as provided in the consumer laws
in India and the victim must be compensated proportionately to the sufferings faced by the
10
victim. That the whole family was dependent upon the victim who was a 23 year old boy and
likely to be the bread earner of the family and after the present medical negligence of the
Doctor/Hospital, the whole family has been put to irreparable losses, financial crisis and severe
mental agony and thus the victim is eligible and entitled to an adequate compensation valued at
Rs.1.5 Crore which is completely justified in the given facts and circumstances of the case.
disproportionate to the grave sufferings faced by the Petitioner. The method and basis of
computation of compensation applied by the national commission was highly incorrect and
without appreciating the relevant facts of the sufferings of the victim and the family
circumstances of the victim`s family. The petitioners family has been put to undue hardship,
mental agony, and irreparable losses. The quantum of the compensation, thus, need to be
calculated by keeping all the relevant facts in the mind which would quantify to Rs.1.5 Crore in
DETAILED ARGUMENTS
1. Whether the Petitioner was entitled to seek his personal medical documents and
diagnostic reports from the respondent.
(a) The Petitioner is a Citizen of India and thus has an in-defeasible right to obtain
information pertaining to his own treatment in terms of the provision in articles 19 and 21
of constitution of India.
11
(b) Article 19(1) and 19(2) of the International Covenant on Civil and Political
Rights declares that every one shall have the right to hold opinions without interference,
and every one shall have the right to freedom of expression, and this right shall include
freedom to seek, receive and impart information of ideas of all kinds regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice. It needs to be noted that India is a signatory to the aforesaid
convention..... Right to hold opinions and to receive information and ideas without
interference embodied in the Covenant is concomitant to the right to freedom of speech
and expression which includes right to free flow of information. Since ancient times we
have allowed noble thoughts to come from all sides [Rig Veda]. This has helped in
forming, building, strengthening, nurturing, replenishing and recreating opinions and
beliefs of an individual...... Reading Article 19(1)(a) along with the Covenant, it must be
recognised that right to freedom of speech and expression includes freedom to seek,
receive and impart information of ideas. It seems to us that freedom to hold opinions,
ideas, beliefs and freedom of thought, etc., which is also enshrined in
Preamble to the Constitution, is part of freedom of speech and expression.
(c) The Medical Council of India has imposed an obligation on Hospitals as per the
regulations notified on 11th March 2002, amended up to December 2010 to maintain the
medical record and provide patient access to it. These regulations were made in exercise
of the powers conferred under section 20A read with section 33(m) of the
Indian Medical Council Act, 1956 (102 of 1956), by the Medical Council of India, with
the previous approval of the Central Government, relating to the Professional Conduct,
Etiquette and Ethics for registered medical practitioners, namely: Maintenance of
Medical Records:
1.3.1. Every physician shall maintain the medical records pertaining to his/her
indoor patients for a period of three years from the date of commencement of the
treatment in a standard proforma laid down by the Medical Council of India and
attached as Appendix 3.
12
1.3.2. If any request is made for medical records either by the
patients/authorised attendant or legal authorities involved, the same may be duly
acknowledged and documents shall be issued within the period of 72 hours.
(d) Hon'ble Kerala High Court recognizing the above principle in Rajappan Vs. Sree
Chitra Tirunal Institute for Medical Science and Technology1 had observed that :
1
in Rajappan Vs. Sree Chitra Tirunal Institute for Medical Science and
Technology [ILR2004(2)Kerala150]
13
It is also to be noticed that Regulations do not provide any immunity for any medical
record to be retained by any medical practitioner of the hospital from being given to the
patient. On the other hand it is expressly provided that a patient should be given medical
records in Appendix 3 with supporting documents. Therefore in the absence of any
immunity either under the Regulations or under any other law, the respondent Hospital
is bound to give photocopies of the entire documents of the patient.
Standing counsel for the Respondent Hospital submitted that the documents
once furnished will be used as evidence against the hospital and against the
doctors concerned. I do not think this apprehension will justify for claiming
immunity against furnishing the documents. If proper service was rendered in the course
of treatment, I see no reason why the hospital, or staff, or doctors should be apprehensive
of any litigation. A patient or victim's relative is entitled to know whether proper medical
care was rendered to the patient entrusted with the hospital, which will be revealed from
case sheet and medical records. There should be absolute transparency with regard to the
treatment of a patient and a patient or victim's relative is entitled to get copies of medical
records. This is recognized by the Medical Council Regulations and therefore petitioner
is entitled to have copies of the entire medical records of his daughter which should
be furnished in full.
(i) There are several decisions by the High Courts and Consumer
Commissions establishing the right of patient to information and duty of the
Hospitals to provide the same. In Kanaiyalal Ramanlal Trivedi v Dr. Satyanarayan
Vishwakarma2, the hospital and doctor were held guilty of deficiency in service
as case records were not produced before the court to refute the allegation of a
lack of standard care.
(ii) If hospital takes up a plea of record destroyed, it was held that it could be
a case of negligence. In S.A.Quereshi v Padode memorial Hospital and
2
Kanaiyalal Ramanlal Trivedi v Dr. Satyanarayan Vishwakarma 1996; 3 CPR 24
(Guj); I (1997) CPJ 332 (Guj); 1998 CCJ 690 (Guj)
14
Research Centre 3 it was held that the plea of destroying the case sheet as per the
general practice of the hospitals appeared to the court as an attempt to suppress
certain facts that are likely to be revealed from the case sheet. The
opposite party was found negligent as he should have retained the case records
until the disposal of the complaint. Explaining the consequences of denial of
medical record, it was held that an adverse inference could be drawn from that. In
case of Dr. Shyam Kumar v Rameshbhai, Harmanbhai Kachiya 4. The National
Commission said that not producing medical records to the patient
prevents the complainant from seeking an expert opinion and it is the duty of
the person in possession of the medical records to produce it in the court and
adverse inference could be drawn for not producing the records.
(iv) In Devendra Kantilal Nayak v Dr. Kalyaniben Dhruv Shah 1996 7 the State
Commission disbelieved the evidence of the surgeon because only photocopies
were produced to substantiate the evidence without any plausible explanation
regarding the absence of the original. National Commission in case of Meenakshi
Mission Hospital and Research Centre v. Samuraj and Anr., I(2005) 8 held
3
S.A.Quereshi v Padode memorial Hospital and Research Centre
II 2000. CPJ 463 (Bhopal)
4
Dr. Shyam Kumar v Rameshbhai, Harmanbhai Kachiya 2002;1 CPR 320, I (2006)
CPJ 16 (NC)
5
Force v. M Ganeswara Rao 1998;3 CPR 251; 1998 (1) CPJ 413
(AP SCDRC)
6
V P Shanta v. Cosmopolitan Hospitals (P) Ltd 1997;1 CPR 377 (Kerala SCDRC)
7
) In Devendra Kantilal Nayak v Dr. Kalyaniben Dhruv Shah 1996;3 CPR 56; I
(1997) CPJ 103; 1998 CCJ 544 (Guj)
8
Meenakshi Mission Hospital and Research Centre v. Samuraj and Anr.,
I(2005) CPJ (NC)
15
that the hospital was guilty of negligence on the ground that the
name of the anesthetist was not mentioned in the operation notes
though anesthesia was administered by two anesthetists. There were two progress
cards about the same patient on two separate papers that were produced in court.
In Dr. Tokugha Yeptomi V Appollo Hospital Enterprises Ltd and Anr
III 1998 9it was held that not maintaining confidentiality of patient information
could be an issue of medical negligence. In this case the HIV status of a patient
was made known to others without the consent of the patient.
These decisions establish the right of the patient and obligation of hospitals or medical
institutions to give medical records.
"We are of the view that when a patient or his near relative demands from the
Hospital or the doctor the copies of the case papers, it is necessary for the Hospital
authorities and the doctors concerned to furnish copies of such case papers to the
patient or his near relative. In our view, it would be necessary for the
Medical Council to ensure that necessary directions are given to all the
Hospitals and the doctors calling upon then to furnish the copies of the case papers
and all the relevant documents pertaining to the patient concerned. The
hospitals and the doctors may be justified, in demanding necessary
charges for supplying the copies of such documents to the patient or the near
relative. We, therefore, direct the first respondent Maharashtra Medical Council to
issue necessary circulars in this behalf to all the hospitals and doctors
in the State of Maharashtra. We do not think that thet hospitals or the doctors
can claim any secrecy! or any confidentiality in the matter of copies of the case
9
Dr. Tokugha Yeptomi V Appollo Hospital Enterprises Ltd and
Anr III 1998 CPJ 132 (SC)
10
Raghunath Raheja v Maharashtra Medical Council, AIR 1996 Bom 198
16
papers relating to the patient. These must be made available to him on
demand, subject to payment of usual charges. If necessary, the
Medical Council may issue a pressnote in this behalf giving it wide
publicity in all the media."
(g). The Patients are capable of electing to make their own medical decisions, or can
delegate decisionmaking authority to another party. Only if the patient is incapacitated,
laws around the world designate different processes for obtaining informed
consent, typically by having a person appointed by the patient or their next of kin make
decisions for them. Thus the value of informed consent is closely related to
the values of autonomy and truth telling.
(i) The UK's Data Protection Act 1998 gives an individual a right of access to
17
information held about him. The Access to Health Records Act 1990 gave access to a
patient's medical records in noncomputerized form, while Data Protection Act 1998 Act
gives access to both electronic and nonelectronic records. The 1990 Act is still relevant to
be in force relating to access to a patient's medical records after his death.
(j) In Ms. Nisha Priya Bhatia vs Government Of NCT Of Delhi 11 on 23 July, 2014
para 29 of the decision following was held:-
…………….. The Commission is of the view that the patient's right to obtain his medical
record is not only protected under RTI Act, but also under the regulation
of Indian Medical Council, which is based on world medical ethics, and
also as a 'consumer' under Consumer Protection Act, 1986 as explained above. It is
the duty of the doctor/Hospital to develop a mechanism whereby the copy of patients
medical record from his joining to his discharge be provided to him or his legal
representative even without him asking as a matter of routine procedure at the time of
discharge as directed by Bombay High Court in above referred
case…………………………..
(a) The Respondent had demonstrated gross negligence in carrying out treatment of
the Petitioner as the Petitioner was administered with the excess amount of Anaesthesia
during the course of operation which led to the paralysis of the lower part of the
petitioner`s body and thus it is established and proven fact that the Respondent-Hospital
authorities have acted negligently and irresponsibly and have made themselves liable to
pay adequate compensation of Rs. 1.5 crore to the Petitioner herein.
(b) It is pertinent to mention that When a medical practitioner attends to his patient ,
he owes him the duty of care. A duty of care in deciding what treatment to give and a duty
of care in the administration of the treatment. The Punjab and Haryana high court
11
Ms. Nisha Priya Bhatia v. Institute of Human Behaviour and Allied Sciences,
GNCT 23 Jul 2014, CIC
18
observed in the case of Doctor Laxman Balkrishan Joshi vs. Trimbak Bapu Godbole that
the petitioner must bring to his task a reasonable skill and knowledge and must exercise a
reasonable degree of care. Neither very highest nor very low degree of care and
competence judged in the light of particular circumstances of each case is what the law
requires. The doctor has also to choose the quality and amount of Medicare to be
provided to the patient.
(c) It is also submitted that the Respondents failed to provide the Petitioner medical
documents which were necessary for second opinion for further treatment which might
have helped patient recover part of his loss suffered, thus taking away a very valuable
opportunity at the right time. The act to deny medical documents necessary for further
treatment was deliberate and malafide.
(d) In the light of the aforesaid, the doctor have completely failed to take due care and
diligence towards the patient and due to administration of excessive anesthesia during the
operation made the Petitioner disable for his whole life and thus there arises a medical
negligence on the part of the Respondent.
19
given facts and circumstances of the case.
(b) 9.2 This Hon`ble Court has allowed the compensation of Rupees more than
Six Crore in the case of Medical negligence in CIVIL APPEAL No.692 of 2012
Advanced Medicare & Research Institute Ltd. Vs. Dr. Kunal Saha & Ors. The relevant
part of the judgement is being reproduced hereinafter:-
153. The Civil Appeal No. 2866/2012 filed by the claimant-Dr.Kunal Saha is also
partly allowed and the finding on contributory negligence by the National
Commission on the part of the claimant is set aside. The direction of the National
Commission to deduct 10% of the awarded amount of compensation on account
of contributory negligence is also set aside by enhancing the compensation from
Rs.1,34,66,000/- to Rs.6,08,00,550/- with 6% interest per annum from the date of
the complaint to the date of the payment to the claimant.
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CONCLUSION AND PRAYER FOR RELIEF
(a) The Judgement of the Hon`ble High Court of Kundoor ordering Respondent to provide
(b) The compensation awarded by the Hon`ble National Consumer Forum is highly meagre
and disproportionate to the gravity of the injuries suffered by the petitioner-Mr. Maninder
and the same may be enhanced to Rs.1.5 Crore in the given facts and circumstances of the
case.
.(c) And to pass any such other order, discretion & judgment as this hon’ble court may deem
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All of which is respectfully submitted
Sd/- ______________________
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