TEAM CORD- 15

INTRA SEMINAR MOOT COURT COMPETITION 2020

THE HON’BLE SUPREME COURT OF INDIA

DR HOLLAND.,…………………………………………………………PETITIONER

V.

MR SMITH.. .................................................................................................RESPONDENT

i
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………………..iii

INDEX OF AUTHORITIES…………………………………………………………………iv

CASES…………............…………………………………………………………………......iv

STATE OF JURISDICTION..................................................................................................vi

FACTS…………………………………………………………………………………. vii-viii

ISSUES RAISED……………………………………………………………………………ix

SUMMARYOF ARGUMENTS .………………………………………………..................x

ARGUMENT ADVANCED………………………………………………....................xi-xiv

PRAYER...............................................................................................................................xv

ii
 LIST OF ABBREVIATIONS

e.g. Example

ART. Article

Hon’ble Honourable

AIR All India Report

Ed. Edition

v. Versus

No. Number

& And

SC Supreme Court

i.e. That is

Anr. Another

iii
 INDEX OF AUTHORITIES

TABLE OF CASES

S.NO CASE NAME CITATION PAGE

.
1. Santosh bharadwaj v. Post graduate (2002) 1 C.P.R 375( india) Xii
institute of medical science
2. Jacob Mathew v. State of Punjab (2005)6 S.C.C. 1 (india) Xi
3. Ward v. United states, 838 F.2d 182(6th cir. 1998) Xii
4. Utlzer v. Medical center hospital or 540 a.2d 652 (vt. 1987) Xii
vermont
5. Bellomy v. United state 888 (S.D.W.Va. 1995) Xii
6. Marlino v. Medical center of ocean 152 N.J. 563,583, 706 A.2d Xii
county, 721,731(1998)
7. Byran v. Burt 486 S.E.2d 536 539 (Va. 1997) Xii

8. Vinitha Ashok v. Lakshmi hospital Sep, 2001 Xii

& othrs
9. Jacob Mathew v. State of Punjab (2005)6 S.C.C. 1 (india) Xii

10. Kusum Sharma and others v. Batra (2010) 3 SCC 1 Xii

hospital and medical research
center and others.
11. M.C. Gill v French 16 cambell l. Rev. 103 (1994) Xiii

12. Tapas Basu v. Dr.Sandeep Mitra 2005 CTJ 1282 (WB). Y.V. Xiii
RAO
13. M.s kamani Sharma& ors V. Dr. 13 july, 2015 Xiii
Anil nadir&ors
14. Gregg v. Scott (2005) UKHL 2 Xiv

15.

iv
 HYPERLINK:
 www.indiankanoon.com
 www. Legal crystal.com
 scconline.com
 lawyerservices.in
 law. Justia.com

v
 STATEMENT OF JURISDICTION

The appellant approach the Hon’ble supreme court of India under sec 23 of C.P.A.

vi
 STATEMENT OF FACT

 The plaintiff, Jacob smith, is 50 year old man. He suffers from specific type of cancer
known s non- Hodgkin’s lymphoma.
 Mr. Smith condition initially presented as a substantial lump under his arm. He first
sought medical attention in relation to this in July 2016, although it must be said that
this symptom first manifested itself at least 18 month prior to smith taking the matter
up with his general practitioner, he spoke about it with his wife, who encouraged him
to visit a doctor.
 In July 2016, smith finally went to see the respondent, Dr. Andrew Holland, who was
a medical practitioner, register as a general practioner in Queensland dr. Holland was
what might be described as smith’s ‘’ regular doctor’’, although that should be viewed
in the light of Dr Holland’s records, which showed that Mr. smith attended only
infrequently at Dr. Holland’s surgery.
 When Mr Smith first presented to Dr. Holland and ask about the lump, Dr. Holland
considered that it was a lipoma- that is benign collection of fatty issue. Having made
that diagnosis, Dr Holland did not refer him to a specialist for conformation or
otherwise of his diagnosis. Six month after consulting with dr. Holland, Mr. Smith
moved from sunnyland to another city named as renac, making it inconvenient to
continue seeing Dr. Holland. In august 2017,Mr. Smith saw his new general
practioner Dr. Anushka Patel and raised the matter of the lump with her dr., Patel
concurred that the lump was probably a lipoma, but out of caution referred him on a
non-urgent basis to the princess Alexandria hospital in warlong city for further
investigation. The referral recorded that there had been some gradual enlargement
since Mr Smith first noticed the lump, accompanied by increasing discomfort and
pain in preceding years.
 The consultants who examine Mr. Smith on this referral in November 2017 has some
suspicions that the lump was, in fact, not benign, and arranged for a biopsy as soon as
possible. The biopsy, some four days later, confirmed that the lump was, in fact, a
lymphoma. The narrowing of the diagnosis- eventually to non-Hodgkin’s lymphomas-
took some time.
 After that the treatment took place at princess Alexandria hospital. Due to their
instance chest pain. On investigation, these were shown to be the result of the
vii
 lymphoma having spread into left thorax. And it was found that he should be
subjected to high dose chemotherapy.
 In November 2018, Mr. Smith suffered a relapse when he developed a tumour in right
axilla, which satisfactically gave rise to a very poor prognosis. The result was that the
chemotherapy that he was intended merely palliative. He was told that he could not be
cured. In this context cure meant a period of remission of at least 10 years since the
disease was last evident.
 And due to high dose chemotherapy. He suffered side effect from the original
treatment & he felt very ill all of the time. Since his relapse in November 2018, he has
quit reasonably believed from what he has been told that he is living on borrowed
time.
 Mr. smith submitted his claim to the court for loss or damages he suffered contending
it to be a case of medical negligence. On the bases of this the court observation were
concluded below-
When treatment began was upstage. So that he was less likely to achieve complete
remission & taking the plaintiff as an example of the whole population of
anaplastice large cell lymphoma patient, but no adverse prognostic features such as those
occasion by the delay in the referral but in this case because of the delay his chances of
remission moved from 45% to approximately 30%.
A plausible body of evidence was led by the defence to the effect that a competent general
practitioner would not, in all cases, refer every lump for further examination such a decision,
was an exercise in clinical judgement, which does not automatically translate into liability in
negligence simply.
Dr. Holland if he made a referral in July 2016, then the condition did not reach the point
which it ultimately did in November 2018, where the disease was considered incurable, and
treatment became, in essence, merely palliative.
Mr .smith delayed seeking any form of medical diagnosis or treatment at it must be said that
this symptom first manifested itself 18 months prior, itself to the development of the disease.
And the trail judge reduced the amount awarded in damages by 35%.

viii
 ISSUE RAISED
I.
WHETHER DR. HOLLAND IS LIABLE OR NOT FOR MEDICAL
NEGLIGENCE.
II.
WHETHER MR. SMITH IS LIABLE OR NOT FOR THEIR OWN ACT
OR NEGLIGENCE.

ix
SUMMARY OF ARGUMENTS

ISSUE-1: WETHER DR HOLLAND IS LIABLE OR NOT FOR MEDICAL

NEGLIGENCE.
Dr. Holland shall not be liable for negligence because there are lot of cases where Dr. Is not
liable for medical negligence. Santosh bharadwaj v. Post graduate institute of medical
science, ward v united state, utzler v. Medical center hospital Vermont, Bellomy v united
state. Marlino v medical center of ocean county, byran v burt, Vinita ashok v lakshmi
hospital& othrs,& gacob methew v state of Punjab. All those cases it was found that Dr. Is
not liable for their negligent the fact or circumstances and timing was wrong and doctors are
not god. they can not assure you 100%. No sensible professional would intentionally commit
an act or omission which would result in loss or injury to the patient as the stake. A single
failure may cost him fear. He took all reasonable care because in lot of cases it did not
happen but in this it happened. And he had also no chances of cure. Because initially he had
lost their opportunity.

Issue –II: WETHER MR. SMITH IS LIABLE OR NOT.

There are lot of cases where doctor are not liable but patient are liable for their life or health. In
M.C Gill v French. Topas basu v Dr. Sandeep mitra, Ms. Kamani Sharma & others v. Anil nadir &
others., Gregg v Scott, In case person is liable for their own negligence. Due to delay by their own
act he could not be cure. And he had less than 50 % chances when he met Dr. Holland and he never
had chances of realistic approach of recovery because initially he had lost their chance.

x
 ARGUMENT ADVANCED

WETHER DR. HOLLAND IS LIABLE OR NOT FOR MEDICAL NEGLIGENCE .

The plaintiff alleged that the defendant was negligent in not keeping any appointment to the
medical practioner, although the symptoms first manifested itself at 18 month prior. There is
testimony that defendant met the appropriate standard of care by electing to observe plaintiff,
the plaintiff was asymptomatic, because the PAH hospital recorded that there has been some
gradual enlargement since Mr smith first notice the lump, accompanied by increasing
discomfort and pain in the preceding year; there is evidence that the plaintiff is expressing
symptom but fail to contact dr. Holland because the Holland record show that Mr. Smith
attended only infrequently at dr. Holland’s surgery.
Santosh bharadwaj v. Post graduate institute of medical science it was held that the fact of
the case provide that the doctor behaved in reasonable manner and took step that were
generally accepted procedure during that time 1. In this case Dr. Holland did not refer Mr.
smith to specialist because Dr. Holland considered that the lump was lipoma- that is
beginning collection of fatty tissue. It was acceptable procedure during that time because the
plausible body of evidence was led by the defence to the effect that a competent general
practioner would not , in all cases, refer every lump for further examination such a decision
was as exercise of clinical judgement, which does not automatically translate liability in
negligence simply because it is automatically shown that an alternative course of action
would have led to different out come.
Jacab mathew v state of Punjab & others2 it was held that professional negligence was to be
treated on a different footing from that of the occupational negligence. A simple lack of care,
an error of professional judgement or an accident’ is not proof of the negligence on the part
of the medical professional. In this case the error of judgment was not referral for the further
investigation & ant there was six month delayed by the Dr. Holland and it is not mentioned in
the fact that the due to delay in referral by Dr. Holland, caused injury because 18 month prior
Mr. smith itself manifested the symptoms and he did not take any medical attention. After 18
month Mr. smith initial consultation with Dr. Holland and when treatment began the smith
condition was upstaged so that he was less likely to achieve complete remission. Normally in
cases of cancer, cancer doesn’t speared imminently.
And I fell to this court to determine whether on the available evidence and on the balance of
probability, that relapse and those circumstances which happened due to delay in referral by
dr Holland. 18 month prior he itself manifested about the symptoms & and after six month
consulted to dr Holland he moved another city sunnyland means he went to in January
2017.making it inconvenient to continue seeing dr. Holland. In august 2017, Mr. Smith saw
his new general practioner Anushka Patel. Again he is negligence for delay of six month.
Because he came to January in sunnayland and In august he met new general practioner
Anushka Patel. And after the referral, treatment began in PAH hospital and Chemotherapy

1
Sontosh bharadwaj v. Post graduate institute of medical science,(2002) 1 C.P.R. 375 (India)
2
(2005) 6 S.C.C. 1 (India)
xi
was administered. And so many other treatment happened. Although the tumour responded, it
did so incomplitely. The result was that the chemotherapy that he was then given was
intended merely as palliative and he was told that he could not be cure. A bad result alone can
not be equated with malpractice and does not generally create a presumption of negligence 3.
How can we say that all those things which happened due to Dr. Holland because there was
too much delay on the part of Mr. Smith. If he would have seen the doctor before, there might
have been chances of his disease free survival.
A physician is not required to be infallible4 or an insurer or guarantor of good result5.
Medicine is an inexact science, and in many cases a patient’s symptoms point in different
direction6. And after that Dr. treat and take a decision accordingly. Then the person shall not
be liable for negligence. Thus, the mere fact that the physician’s has failed to effect a cure, or
even the fact that physicians diagnosis and treatment have actually been detrimental to the
patient’s health does not gave rise to an inference of negligence7.

DUTY AND CARE

The law does not require that a doctor in the discharge of his duty of care should use the
highest degree of skill since it may not be require. It is enough for the Dr. to show that he
acted in accordance with the general and approved practice8. In this he also took a decision
in accordance with the general and approved practice. Competent general practioner would
not in all case refer for every lump for further investigation and also taking the plaintiff as an
example of the whole population of anaplastic large cell lymphoma patient, but no adverse
prognostic features such as those occasioned causes by delay in referral. But in this case it
happened. On basis of one case we can not be liable to Dr Holland.

No sensible professional would intentionally commit an act or omission which would result
in loss or injury to the patient as the professional reputation of the person is at stake. A single
failure may cost him fear in his career9.
Kusum Sharma and others v. Batra hospital and medical research centre and others 10. The fact
of the case provide that removal of malignant abdominal tumour by surgical operation
adopting an anterior approach in preference to posterior approach, though failed to save the
life of the patient, was not to be negligent.
3
Ward v. United state, 838 F.2d 182(6th cir. 1988)
4
Utzler v. medical center hospital or Vermont,540 a.2d 652 (vt.1987)
5
Bellomy v. united states, 888 . (S.D. W. Va. 1995)
6
Morlino v. medical center of ocean county, 152 N.J. 563, 583, 706 A.2d 721,731 (1998)
7
Byran v. burt, 486 S.E.2d 536, 539 (va. 1997)
8
Vinitha Ashok v lakshmi hospital & oths sep,2001.
9
Jacob Mathew v state of Punjab., supp 2
10
(2010) 3 SCC 1.
xii
WETHER MR SMITH IS LIABE OR NOT.
the general view of the physician- patient relationship is based on the assumption that the
physician knowledge superior to that of the patient. This assumption is generally fading over
a year and the physician and patient ate now placed on particularly equal footing 11. 18 month
prior he itself manifested about lump and due to delay in treatment had significantly reduced
the chances of servival and when he meet Dr Holland his condition was upstage . If a
person is suffering from any type of disease and there is some pain from preceding years.
Even after that he is not going for any medical attention. Means he is putting their life in
trouble then the person himself liable for their own Act.

There was the case, the complainant who undergone surgery in left eye adopting vitrectomy
and endo-laser, which is and accepted treatment was a discharge with a direction to come
back on 22-11-1996. But he visited the hospital only on 14 -12 1996. Doctor discovered that
he is suffering from retinal detachment and referred him to another hospital, where he
underwent an operation unsuccessfully. The west Bengal state commission found that such
deterioration is not uncommon after vitrectomy .in this case there was delay in discovering it
due to the negligent behaviour of the patient. the complaint was dismissed12. In this case also
after 18 month he discovered about the lump. When the condition went bad. Mr smith is
totally liable for their own act.

Loss of chances
failure to diagnosis’ would not matter so much because patient was less than 50% chances of
survival. Hence, applying the principle cited above(loss of chance) we do not hold opposite
party liable for the negligence13. Because his chances were to slim for the delay to have
worsened his position.
there was the case evident was that, on the balance of probabilities. Even with a timely
diagnosis the patient would not have survived as his prospect of survival were assessed at
42%( that is less than 50 % chances of servival). the complicating factor in this case was that
the evidence also showed that, as a consequence of the delayed diagnosis’, the patient’s
prospects of servival had reduced from 42% to approximately 25%. Nonetheless, the court

11
M.c gill v French, 16 campbell L. Rev. 103 (1994).
12
Tapas Basu v. Dr. sandeep Mitra 2005 CTJ 1282 (WB). Y.V.RAO
13
Ms. Kamani Sharma& ors v. Dr. Anil nadir& ors. 13 july, 2015
xiii
took an uncompromising view as to the strict application of the “but for’’ test in clinical cases
and found that the patient could not recover for his loss of a chance of improved survival
prospects because his prospects had never been more than 50%. A patient must prove that a
doctor’s action, or lack of it, caused the patient to suffer injury and not just the chance of
avoiding an injury. In practical term is means that a doctor failing to diagnose a case of
cancer in which a patient has only a 25% chance of servival would not be found negligent.
Only ,if the chance of survival was over 50% 14. In this case . 18 month prior he first
manifested about lump and after 18 month when he met Dr. Holland his condition was
upstage and he had remission chances of approximately 45%. But due to delay survival
reduced from 45 to 30%. And he could not be cure; cure means survive for 10 years. All
caused due to initial delay in treatment. Here the patient lost nothing by delay in referral by
dr. Holland because when he met Dr Holland he had less than 50% chances of recovery and
he never had a realistic prospect of recovery.

PRAYER
14
Gregg v Scott (2005) WLR 268
xiv
 Wherefore, in the light of facts presented, argument advanced and authorities cited, the
appellant humbly submitted that the Hon’ble supreme court of india be pleased to
Adjudge and declare that:

1. THERE WAS NO MEDICAL NEGLIGENCE ON THE PART OF DR.

HOLLAND.
2. MR. SMITH IS LIABLE FOR THE WHOLE ACT OF NEGLIGENCE.

Pass any other order, which the court may deem fit in light of justice, equity and good
conscience.

And in these premises the appellant as duty bound shall forever pray.

xv