UPES

SCHOOL OF LAW
MOOT COURT COMPETION, 2017
BEFORE THE

THE HOUNORABLE DISTRICT COURT

OF INDIA
BETWEEN

MRS. EMY (PLAINTIFF)

V.

Dr. ADAM AND Dr. MILLER

MEMORIAL ON THE BEHALF OF PLAINTIFF

 TABLE OF CONTENTS

LIST IF ABBREVIATIONS
…………………………………………………………………………….2

INDEX OF AUTHORITIES
…………………………………………………………………………….3

STATEMENT OF JURISDICTION
………………………………………………………………….4

STATEMENT OF FACTS
………………………………………………………………………………5

ISSUES INVOLVED
…………………………………………………………………………………….6

SUMMARY OF ARGUMENTS
……………………………………………………………………8

ARGUMENTS ADVANCED
………………………………………………………………………...9

PRAYER
……………………………………………………………………………………………………11
 LIST OF ABBREVIATIONS
SCC SUPREME COURT CASES
DC DICTRICT COURT
IPC INDIAN PENAL COURT
 INDEX OF AUTHORITIES

1. CASES REFERRED
mr x v. hospital z 1998 8 scc 296

Dr. lakshman balkrishna v.Dr. trinbak bapu godbole

Tarun Thakore V. Dr. noshir M.shroff

2. BOOKS AND TREATIES

INDIAN CONSTITUTION LAW 1950

INDIAN PENAL CODE 1860

INDIAN EVIDENCE ACT 1872

HUMANS RIGHT ACT 1998

Indian Medical Council (Amendment) Act 1964 inserted sec 20A

Section 269 and 270 of ipc

3. DICTIONARIES AND LAW LEXICONS

BLACK’S LAW ICTIONARY

4. LEGAL DATA BASES

LEXIS NEXIS
SCC ONLINE
 STATEMENT OF JURISDICTION
APPEAL NO. 6411

PROSECUTION HAS THE HONOR TO SUBMIT THE PRESENT DISPUTE AND ITS
MEMORANDUM IN THE DISRICT COURT OF DEHRADUN
 STATEMENT OF FACTS

1).Mr James was married to Emy in 1996.

2).He separated from his wife in late 1997.

3).They reconciled in early 2000 and started living together again.

4).In April 2000, he tested positive for the Humane Immuno Deficiency virus i.e. HIV at a
GenitoUrino Medicine i.e. (GUM) clinic. He had attended the clinic after he had been contacted
as a result of a partner notification scheme.

5). It transpired that he had been an intravenous drug user at various points in 1998 and 1999 and
had contracted HIV as a result of needle sharing.

6). He informed the consultant at the GUM clinic (Dr. Adam) that he was now living with his
wife again , that they were currently engaging in protected consummation of marriage but that
his wife was keen to try for a child in the near future.

7). He was advised that he should disclose his HIV positive status to his wife in order that she
could be appropriately counselled on the risks and treatment option involved but stated that he
didn’t feel able to disclose to her. He indicated that he could not guarantee that he would not
engage in unprotected sexual intercourse with his wife, without disclosure. With Mr. James’s
consent, his HIV positive status and circumstances were disclosed to his general physician in
June 2000. The general physician was also Mrs. Emy’s general physician.

Mrs. Emy discussed the possibility of conceiving at a consultation in July 2000 and gave no
indication that she was aware of her husband’s HIV positive status. The general physician didn’t
feel able to disclose this fact to her. He had a consultation with Mr. James in July 2000 in which
Mr. James indicated that he didn’t intend to disclose his HIV positive status to his wife, but
intended to engage in unprotected sexual intercourse with a view to conceiving , in line with her
request. Dr. Miller (general physician) strongly advised Mr. James to disclose to his wife, but
took no further action and didn’t infact have any further consultation with either Mr James or
MrsEmy before moving on to a different practice in late 2000.

Mrs. Emy subsequently contracted HIV and brought an action against both Dr. Adam and the
general physician. The contention is MrsEmy had contracted HIV subsequent to July 2000 and
that this wouldn’t have occurred had Dr. Adam or the general physician disclosed Mr. James’s
HIV status to her directly, as she wouldn’t have engaged in unprotected sexual intercourse with
him in the light of that knowledge.
 ISSUES RAISED
The following questions are presented before the Hon’ble District court in the instant matter:

Issue 1 - Whether non observance of duty by the Dr. Miller (General physician) would amount
to breach of duty of care towards Mrs Emy ?

ISSUE 2 - - Whether or not a case of medical negligence is maintainable against Dr. Miller?
 SUMMARY OF ARGUMENTS

ISSUE 1 - Whether non observance of duty by the Dr. Miller (General physician) would amount
to breach of duty of care towards Mrs Emy ?

Thus, the Code of Medical Ethics also carves out an exception to the rule of confidentiality and
permits the disclosure. in the circumstances enumerated above under which public interest,
would override. the duty of confidentiality, particularly where there, is an immediate or future
health risk to others, The argument .of the learned counsel for the appellant, therefore, that the
respondents were under a duty to, maintain confidentiality on account, of the Code of Medical
Ethics. formulated by the Indian Medical Council cannot be accepted as the proposed rnarriage
carried with it the health risk to an identifiable person who had to be protected from being
infected with the communicable disease from which the appellant suffered, The right to
confidentiality, if any. vested in the appellant was not enforceable in the present situation.

ISSUE 2 - Whether or not a case of medical negligence is maintainable against Dr. Miller?

It is humbly submitted before the Hon’ble court that an individual has no common law duty to
warn innocent others of the existence of danger unless that individual is responsible for the
creation of that danger. There are however , exceptions to the common law rule that no duty
exists. When the avoidance of forseeable harm requires a defendant to control the conduct of
another person, or to warn off such conduct, the common law has traditionally imposed liablity.
 ARGUMENTS ADVANCED

ISSUE 1
Due to the negligent act of the doctor and the general physician for not disclosing the fact that
Mr. james was HIV positive the wife of Mr james suffred harm as she was also infected by the
greavious disease .

The general physician has an duty of care towards Mrs Emy to tell her about the consequences
of the unprotected sexual intercourse with her husband who was HIV positive as the doctor was
also aware of the fact.

And the doctor do not inform or gave any such information to his wife the doctor acted
negligently on his part to inform Mrs Emy.

According to the section 269 of indian penal code

Negligent act likely to spread infection of disease dangerous to life.—Whoever unlawfully or

negligently does any act which is, and which he knows or has reason to believe to be, likely to
spread the infection of any disease dangerous to life, shall be punished with imprisonment of
either description for a term which may extend to six months, or with fine, or with both.

ISSUE 2
Whether or not a case of medical negligence is maintainable against Dr. Miller?

It is humbly submitted to the Hon’ble court of dehradun that the following contentions are
applicable here :

There is a proper case of Defendant’s negligence as if defendant had advised her regarding
husband’s true medical condition the same could have been attended to and treated and
immediate and proper steps could have been taken to avoid her contracting the disease , the
early and prompt medical attention would have been recieved by her but the defendant failed to
do so which resulted in serious, painful and probable injuries.

AIDS is a disease like no other , it would be a mistake to include AIDS in the same category as
other contagious diseases like small- pox, tuberculosis, typhoid, and scarlet fever. It is critically
important to recognize that AIDS, unlike these other diseases, is not casually transmitted. Unlike
typhoid and scarlet fever, AIDS does not pose a threat to everyone in close proximity to an
infected person. Experts surmise that AIDS is difficult to contract. Working with, speaking with,
or even touching an AIDS victim does not place a person at risk. HIV transmission is only
possible if these fluids come in contact with a mucous membrane or damaged tissue or are
directly injected into the bloodstream (from a needle or syringe). Mucous membranes are found
inside the rectum, the vagina, the opening of the penis, and the mouth.   
Most venereal diseases are curable but AIDS is not. The common law may impose upon
physicians the duty to inform an identifiable third party of an infectious disease.

One of the landmark cases, Mr X vs. Hospital Z 1998 8 scc 296 , The trend in case law has been
to place a duty on the doctors of patients with communicable diseases to warn the patients or
their families that those in contact with such patients may contract the disease. This exception is
a logical, concrete extension of the belief that members of the medical profession owe a duty not
only to their patients, but to all of society as well. Physicians have a responsibility to prevent the
spread of contagious diseases by detecting and isolating them before large numbers of people
become infected. It is for this reason that "the courts hold that a doctor is liable to persons
infected by his patient if he negligently fails to diagnose a contagious disease or, having
diagnosed the illness, fails to warn members of the patient's family. It generally is recognized
that once a physician diagnoses a contagious disease it is the physician's duty to use reasonable
care to advise members of the patient's immediate family of the existence of the disease.
 PRAYER

In the light of the issue raised ,authorties cited and argument advanced may this honourable court
hold :

1 ). Both doctor i.e. Dr.Adam and Dr. Miller is liable for damage suffered

Under 269 and 270 of I.P.C by Mrs.Emmy,and maximum imprisonment

or fine or both, be awarded to the respondent.

2).And pass any other appropriate order as the Hon’ble Court may deem fit in the interest of
equity, justice and good conscience.

And for this act of Kindness, the Respondent as in duty bound, shall forever pray.

Pass any order that it deems humbly and with good consicise and for this the respondent is
bound and shall pray for this