Issue 1: Whether the appellant is liable for contributory negligence?

It is humbly submitted before this hon’ble bench that the appellant is not negligent on his part as
the defendant smith himself is negligent , the symptoms were determined by the defendant 18
months prior that is one and half year which is not at all a short period of gap in today’s world as
stated in the facts . This shows once careless behavioural approach towards health.

He filed the case in the year 2018 and he took treatment from Dr.Holland in 2016, just for six
months in which to he was very irregular and infrequent to attend the seccions provided by the
doctor. One and a half year is that gap where his condition got worse and suffered relapse. Doctor
was providing his services to respondent on his behalf it is the respondent who was negligent ,
who was firstly late in holding out a doctor as the symptoms were discovered 18 months prior and
secondly he was very infrequent in attending the seccions on his part.

Even in December 2017 when the referral doctor asked for a CT scan due to unbearable pain in
Smith chest there was no clue in the reports that the disease he is suffering from is spreading
throughout his body. How can provide him with the right treatment if the reports aren’t correct ,
they provided with him with the treatment which they thought is best according to the condition
of the patient .

And also the fact that Dr.Holland was a general practitioner ,the duty of a general practitioner is
to provide routine healthcare i.e. physical examinations ,immunisations and vaccinations they
aren’t specialized in one field and also who provides health education to clients . So Dr.Holland
has not done any breach of his duty as a general practitioner.

According to a Latin maxim volenti non-fit injuria , “when a person consents to the inflicton of
some harm upon himself , he himself has no remedy left in tort . In case, the plaintiff voluntarily
agrees to suffer some harm , he is not allowed to complain and the consent given be him serves as
a good defence against him. In such a case there are three conditions to be fulfilled .

 Consent must be free- smith have voluntarily agreed for chemotherapy and other surgeries
no one forced him to do so .
 Consent obtained by fraud-neither the doctors obtained fraud or false consent of Mr.Smith
.
  Consent obtained under compulsion-now it was compulsory for him to take all the
surgeries he could have refused if h found something fishy.

When called for that when the high dose chemotherapy was given to Smith ,he have known the
consequence before going through the chemotherapy ,he had voluntarily had agreed to take the
consequences that had happened to him therefore there is no one liable for his poor medical
condition. As a matter of law and medical ethics, an Oncologist is required to obtain a patients
informed consent before administrating therapy, even the Oncologist finds that the chemotherapy
is the best and assured way to cure a patient he has to get a written consent on paper that , the
patient agrees to good and bad effects of therapy and no one is liable for his condition .So
therefore Smith has voluntarily agreed to face the good and bad effects of chemotherapy on his
body how in such case a doctor can be held liable.

Similarly in the case Kusum Sharma &Ors vs. Batra Hospital and Medical Research case held that
the law of negligence has to be applied according to the circumstances of a individual case. No
one can ignore that medicine is an evolving science ,and there is no precise of effect for every
person. The operation if some risk is done, the doctors cannot be held liable for negligence as the
patient himself has consented to the risk involved in the operation .In the above case the deceased
Shri R.K. Sharma (husband of first complaint and father of other complainants)with aliments for
the general oedema got admitted(18March1990)into Batra Hospital ,Delhi(opp. Party1).he was
advised surgery for removal of an adrenal tumour after thorough examinations. The surgery was
carried out(which had some complications)and further post surgery complications and corrective
surgeries led to his death(11october 1990). The complaint was filed under the section 21 of the
Consumer protection Act claiming compensation of rs.45 lakhs attributing deficiency in service
and medical negligence in the treatment of the deceased. However the edifice of the whole case
‘negligence’ is based on the foundation of the damage to pancreas caused at the time of first
surgery on 2.4.90 carried out by the opp. Parties .However negligence in the part of the
complainant side for further checkups with opp. Parties leads to dismissal of the case. And doctors
weren’t held liable for any medical negligence.

In another case Jacob Mathew v. State of Punjab, the SC gave the landmark judgement & held that
in some cases of medical profession the doctors are equippers in certain situations where they have
to make choices between devil and the deep sea. Sometimes in certain situations there must be
greater risk in the operation nut higher changes of success in another move there would be lesser
risk but higher chances of failure . so the decision , that which course would be followed will
depend on facts and circumstances . thf. The doctors cannot be held liable in such cases.

Issue 2: Whether the appellant is liable for paying compensation?

It is humbly submitted before the hon’ble court that