1st INTRA MOOT COMPETITION, 2021

1st INTRA MOOT COURT COMPTITION, 2021

BEFORE

THE HON’BLE SUPREME COURT

APPELATE JURISDICTION APPEAL NO.:____/2021

IN THE MATTER OF:

Ashray & JJIMS …APPELANT

v.

Mrs. Reema Sen …RESPONDENT

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE SUPREME COURT

MEMORIAL ON BEHALF OF THE RESPONDENT

IMCC: 012

1
 1st INTRA MOOT COMPETITION, 2021

INDEX

LIST OF ABBREVIATIONS.........................................................................................3

LIST OF CASES/ INDEX OF AUTHORITIES...........................................................4

LIST OF BOOKS……………………………………………………………………….5
JOURNALS REFERRED……………………………………………………………..6

DATABASES REFERRED…………………………………………………………….6

STATUTES REFERRED………………………………………………………………6

LIST OF INTERNET SOURCES………………………………………………………6

STATEMENT OF JURISDICTION...............................................................................7

STATEMENT OF FACTS...............................................................................................8

STATEMENT OF ISSUES...........................................................................................10

SUMMARY OF ARGUMENTS....................................................................................11

ARGUMENTS ADVANCED.........................................................................................12
I. There was negligence on the part of Ashray and JJIMS
II. The compensation amount 5 Lakhs awarded by the relevant consumer forum is not
adequate.

PRAYER..........................................................................................................................17

2
 1st INTRA MOOT COMPETITION, 2021

LIST OF ABBREVIATIONS
ABBREVIATIONS MEANING
• § Section
• ¶ Paragraph
• & And
• A.I.R All India Reporter
• Anr. Another
• Art. Article
• JJIMS Jeevan Jwala Institute of Medical Sciences
• H.C. High Court
• No. Number
• Ors Others
• pg. Page
• S.\Sec. Section
• S.C. Supreme Court
• U.O.I. Union of India
• V.\ Vs. Versus
• Vol. Volume
• SCC Supreme Court Cases
• AIR All Indian Reporter

3
 1st INTRA MOOT COMPETITION, 2021

INDEX OF AUTHORITIES

LIST OF CASES

Sr.No NAME OF THE CASE RELEVANT CITATION

1. Jacob Mathew vs. State of Punjab, Supreme Court of AIR (2005) SC 3180
India
2. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

3. Laxman Balkrishna Joshi vs Trimbak Bapu Godbole 1969 AIR 128

and Anr,
4. Dr. P.B. Desai v. State of Maharashtra & Anr., IV (2013) CPJ 63 (SC)

5. Ram Biharilal vs. Shrivastava AIR 1985 MP 150

6. Indian Medical Association vs. V.P. Shantha 1996 AIR 550

7. Sarla Verma vs. Delhi Transport Corporation (2009) 6 SCC 121

8. Balram Prasad v. Kunal Saha, (2014) 1 SCC 384

9. Nizam's Institute of Medical Sciences vs. Prashant S. (2009) 6 SCC 1

Dhanaka,

4
 1st INTRA MOOT COMPETITION, 2021

LIST OF BOOKS

Sr.No Name of the Book Author

1. Medical Negligence and The
Law in India, Oxford
Publication, Edn 2010
2. The Law of Torts.26th
edition 2012, LexisNexis
Tapas Kumar Koley
Dhirajlal & Ratanlal
Butterworths Wadhwa.

3. Law & Medicine, Universal Dr Lily Srivastava

Law Publishing, Edn 2010

4. Medical Negligence, South Sweet & Maxwell

Asian Edition, 2010, Edn 5th
.
5. Medical Law and Ethics, Jonathan Herring
Oxford Publication, Edn 3rd
2010
6. Medical Negligence and Dr. Jagdish Singh
Compensation, Bharat Law
Publication, 2014 Edn. 4rd
7. Indian Contract Act Dr. R. K. Bangia

5
 1st INTRA MOOT COMPETITION, 2021

Journals Referred

1. All India Reporter

2. Supreme Court Cases
3. Indian Law Reporter
4. Company Law Journal

Databases Referred

1. www.judis.nic.in
2. www.lexisnexis.com
3. www.manupatrafast.com
4. www.scconline.com
5. www.westlaw.com

Statutes Referred

1. The Medical Council Act, 1956

2. Consumer Protection Act, 1986

LIST OF INTERNET SOURCES

Sr.No Name of the Site

1. www.manupatra.com
2. www.westlawindia.com
3. www.wexisnexusindia.com
4. www.heinonline.com
5. www.scconline.com

6
 1st INTRA MOOT COMPETITION, 2021

STATEMENT OF JURISDICTION

The appellant has approached the Hon’ble court under section 23 (1) of Consumer Protection
Act.1. The respondent maintains this hon’ble court need not entertain its jurisdiction in this
appeal. The respondent pleads before this Hon’ble court for recovering the loss amount due
to Medical Negligence.

The present memorandum sets forth the facts, contentions and arguments in the present case.

1
Appeal.—Any person, aggrieved by an order made by the National Commission in exercise of its powers
conferred by sub-clause

(i) of clause

(a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty
days from the date of the order: Provided that the Supreme Court may entertain an appeal after the
expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it
within that period: 1[Provided further that no appeal by a person who is required to pay any amount in
terms of an order of the National Commission shall be entertained by the Supreme Court unless that
person has deposited in the prescribed manner fifty per cent. of that amount or rupees fifty thousand,
whichever is less.]

7
 1st INTRA MOOT COMPETITION, 2021

STATEMENT OF THE FACTS

BACKGROUND AND FACTS OF THE CASE

¶1. On Mr. Gajab Sen’s 52nd birthday on March 21, 2020, a surprise party was arranged for
him by his business partners. He fell and went unconscious at the party after a few drinks. He
was brought to JJIMS right away. The on-duty doctor ordered a RAT (Rapid Antigen) test.
The result was negative. Because the symptoms continued, an RT-PCR test was
recommended. Mr. Sen complained of a sore throat and a dry cough after regaining
consciousness. He was moved to an isolation ward right away.

¶2. The PM of India imposed a 'Janata Curfew' on March 22, 2020, to combat the massive
spike in covid diseases. Doctors, nurses, and equipment were all in short supply in hospitals
around the country. Because the disease's pathophysiology was unknown, governments all
over the world struggled to develop treatment procedures. To relieve the strain on hospitals,
the Ministry of Health issued a standard operating procedure (SOP) for the reallocation of
resident doctors as part of COVID hospital management. Students were divided into two
groups depending on their primary departments and assigned to non-critical and critical
wards.

¶3. In JJIMS, Ashray was a bright student. He did well on all of his university tests. On
March 29, 2020, he was performing his internship in the emergency medicine department
when he was sent to the Covid Critical Care Unit. The duty-time of residents ranged from a
minimum of 48 hours to four days as the number of patients continuously increased.

¶4. Mr. Sen was admitted to CCU-C on March 30, 2020, because his vital signs were
unsteady. The CCU-C Team Leader circulated the protocol to all of the department's doctors,
as recommended by the health ministry. All patients were given equal doses of all medicines
according to the procedure. Ashray was given the responsibility of monitoring fifty of the
unit's two hundred and fifty patients. One of them was Mr. Sen.

¶5. From the beginning, Ashray had noticed an inconsistency in Mr. Sen's ECG readings.
There were no previous cardiac events in the patient's history as noted in the emergency

8
 1st INTRA MOOT COMPETITION, 2021

department. Nonetheless, Ashray changed the treatment by adding the appropriate medication
and noted that he must be monitored.

¶6. Mr. Sen's vital signs stabilised slightly on April 17, 2020. As hospital administration
advised him that beds for convalescing patients were not available, Ashray recommended Mr.
Sen's discharge with medication. Mr. Sen collapsed in his bed on April 22, 2020. He was sent
to the hospital, where resuscitation attempts were made but failed. Cardiac arrest was given
as the reason for death.

¶7. After JJIMS hospital authorities declined to hear any complaint, Mr. Sen's wife filed a
complaint in the relevant consumer forum against Ashray and JJIMS for compensation for
medical negligence.

¶8. Ashray and JJIMS took their case to the Supreme Court after the competent consumer
forum ruled in favour of Mr. Sen's family. During a hearing before a consumer forum, a
doctor stated that discharge could only be advised if all vital signs had stabilised completely.
The case is posted for a hearing.

ARGUMENTS OF BOTH THE PARTIES

¶9.The Respondent argued that the manner in which medical treatment was administered to
Mr. Sen and his subsequent discharge from the Hospital was inappropriate and ineffective
medication; the premature discharge of the deceased despite his condition shows gross
medical negligence on part of Hospital authorities.

¶10. The respondents were of the view that when the patient was discharged, his vitals were
normal. He was stated to be clinically stable and that is why he was so discharged with proper
medical prescriptions.

DECISION OF THE CONSUMER FORUM

¶11. The Consumer Forum decided in favour of the Respondent and directed a compensation
of Rs.5 lakh to be paid to the wife of the deceased.

THE PRESENT PETITION

9
 1st INTRA MOOT COMPETITION, 2021

¶12. Aggrieved by the decision of the Consumer Forum the present Respondent preferred an
appeal in the Supreme Court. This is how the matter comes before this Hon’ble Court.

STATEMENT OF ISSUES

1. Whether there was negligence on the part of Ashray and JJIMS?

2. Whether the compensation amount of INR 5 lakhs awarded by the relevant
consumer forum is adequate?

10
 1st INTRA MOOT COMPETITION, 2021

SUMMARY OF ARGUMENTS

I. There was negligence on the part of Ashray and JJIMS

The arguments under this contention seek to establish that the parameters laid down to meet
the judicial requirements for proving medical negligence are fulfilled i.e. (i) Reasonable care;
(ii) Breach of Duty and (iii) consequent damage. Furthermore, it was very evident from the
actions of the appellants that due care was not taken from their end because of which the Mr.
Sen had died due to cardiac arrest.

II. The compensation amount 5 Lakhs awarded by the relevant consumer forum
is not adequate.

The appellants are liable for deficiency of service under the section 2(1) (o) of the Consumer
Protection Act, 1986. The respondent is aggrieved by the inadequate amount of compensation
that was awarded by the relevant consumer forum therefore the respondent relied on the
multiplier rule which was applied in various cases of the Hon’ble Supreme Court and claim
an amount of 95 lakhs for medical negligence caused by the appellants to the respondent’s
husband.

11
 1st INTRA MOOT COMPETITION, 2021

ARGUMENTS ADVANCED

I. There was negligence on the part of Ashray and JJIMS

1. To prove whether there was negligence on part of Ashray and JJIMS the acts of the
appellants have to undergo certain tests to prove medical negligence which were laid
down by the Hon'ble Supreme Court in Jacob Mathew vs. State of Punjab 2 in the
following manner: The jurisprudential concept of negligence defines any precise
definition. Eminent jurists and leading judgments have assigned various meanings to
negligence. The concept as has been acceptable to Indian jurisprudential thought is
well stated in the Law of Torts. Negligence is the breach of a duty caused by the
omission to do something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs would do, or doing something
which a prudent and reasonable man would not do. Actionable negligence consists in
the neglect of the use of ordinary care or skill towards a person to whom the
defendant owes the duty of observing ordinary care and skill, by which neglect the
plaintiff has suffered injury to his person or property. The definition involves three
constituents of negligence: (i) A legal duty to exercise due care on the part of the
party complained of towards the party complaining the former’s conduct within the
scope of the duty; (ii) breach of the said; and (iii) consequential damage. Cause of
-action for negligence arises only when damage occurs; for, damage is a necessary
ingredient of this tort.”
2. The meaning of standard of care can be taken from Bolam’s Rule, Indian Courts have
consistently, in the past, cited the Bolam test as a point of reference to decide medical
negligence disputes. The Bolam test was first recognized in an English law
case Bolam vs. Friern Hospital Management Committee3. The test is the standard of
the ordinary skilled man exercised and professing to have that special skill. A man
need not possess the highest expert skill, it is well established that it is sufficient if he
exercises the ordinary skill of an ordinary competent man exercising that particular
art. In the case of a medical man, negligence means failure to act in accordance with
the standards of a reasonably competent medical man at the time.

2
Jacob Mathew vs. State of Punjab, Supreme Court of India, AIR (2005) SC 3180
3
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

12
 1st INTRA MOOT COMPETITION, 2021

3. In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and
Anr4., the Hon’ble Supreme Court held that a doctor has certain duties and a breach of
any of those duties can make him liable for medical negligence. A doctor is required
to exercise a reasonable degree of care that is set for this profession. A standard of
care specifies the appropriate treatment and medication procedure as per the
requirements that should be taken into account by a doctor while providing the
treatment to his patients. The care should not be of the highest degree nor the lowest.

4. In the present case Mr. Sen was taken to Jeevan Jwala Institute of medical Sciences
hospital and was later admitted to Critical Care Unit for Covid patients (CCU-C) so
there exists a legal duty on part of the appellants to take due care. Ashray had
observed and anomaly in the ECG readings of Mr. Sen from the beginning, an
electrocardiogram (ECG) is a test that is used to check heart's rhythm and electrical
activity. Sensors attached to the skin are used to detect the electrical signals produced
by the heart each time it beats. An anomaly in the ECG readings can mean many
things. Sometimes an ECG abnormality is a normal variation of a heart's rhythm,
which does not affect the health. Other times, an abnormal ECG signals a medical
emergency, such as heart attack and cardiac arrest. The fact that Mr. Sen under was
admitted into CCU-C for 17 days clearly shows that a heart attack or cardiac arrest is
likely to occur. Although Mr. Sen’s vitals became moderately stable at the time
Ashray recommended Mr. Sen’s discharge as hospital administration informed him
that beds were not available for convalescing patients clearly breaches the duty of
care. When Ashray recommended the discharge the patient was still the CCC-U and
required constant observation till the patient became completely stable as abnormality
was observed in the ECG. So, there is no doubt that the act of the appellants breached
the standard of care that was required for the patient.

5. In PB Desai V State of Maharashtra5 the Hon’ble court decided that a senior doctor
leaving to the care of a junior doctor who is not incompetent but has no experience as
such (even if such junior doctor performs the surgery without mistakes) has led to the
finding of medical negligence. The fact that the team leader directing Ashray to
monitor fifty of the two hundred and fifty patients in CCU-C and Ashray modifying

4
Laxman Balkrishna Joshi vs Trimbak Bapu Godbole And Anr, 1969 AIR 128
5
Dr. P.B. Desai v. State of Maharashtra & Anr., IV (2013) CPJ 63 (SC)

13
 1st INTRA MOOT COMPETITION, 2021

the treatment of Mr. Sen and recommending the patient’s discharge without
consulting a senior doctor clearly shows the appellants breached the duty of care.

6. In Ram Biharilal vs. Shrivastava6 the operation theatre was under repair. There were
only two staff nurses for a 28bed hospital. In these circumstances, the court observed
that the doctor should not have undertaken such a major operation in a hospital, which
was lacking basic facilities. He should have advised the petitioner to approach another
hospital which had all the facilities including specialists. The doctor, therefore, failed
in his duty of care without taking necessary precautions”. In the present case the
appellants should have directed or moved the patient to a better equipped hospital
considering the situation of the patient. So, the appellants have not taken reasonable
care in this aspect as well.

7. Since the appellants breached the duty of care Mr. Sen collapsed in his bed and was
taken to the hospital and resuscitation was attempted but it was unsuccessful and Mr.
Sen died. So, the consequential damage has occurred to the respondent for the breach
of duty of care.

8. In light of the above mentioned judicial pronouncements it can be contended that

Ashray and JJIMS have acted negligently and are liable for medical negligence.

II. The compensation amount 5 Lakhs awarded by the relevant consumer forum
is not adequate.

1. There was deficiency of service on part of Ashray and JJIMS under the Consumer
Protection Act. Section 2(1)(g) of the Consumer Protection Act defines the
‘deficiency of service’ which means any fault, imperfection, etc. in the quality or
manner of performance that is required to be maintained by or under any law or it has
been undertaken to be performed by a person in pursuance of a contract or otherwise
in relation to any service and includes (a)any act of negligence or omission or
commission by such person to the consumer and (b) deliberate withholding of
relevant information by such person to the consumer.

6
Ram Biharilal vs. Shrivastava AIR 1985 MP 150.

14
 1st INTRA MOOT COMPETITION, 2021

2. All the medical services fall under the purview of the Consumer Protection Act, 1986.
After the judgment of the Supreme Court in Indian Medical Association vs. V.P.
Shantha7, this medical profession and services have been brought under the purview
of the Act. In this case, the court discussed the important question of medical
negligence i.e., whether a medical practitioner could be said to rendering services
under Section 2(1)(o) of the Consumer Protection Act, 1986. The following points
were laid down: (i)Medical Services should be treated as the “services” under Section
2(1) (o) of the Consumer Protection Act, 1986 8. It is not a contract of personal service
as there is no master-servant relationship between them. (ii) Contract of service in
Section 2(1) (o) cannot be confined to contracts for the employment of domestic
servants only. The services rendered to the employer are not covered under the Act.
Medical Services which are rendered by independent doctors and are free of charge
are under the jurisdiction of Section 2(1)(o) of the Act. (iii)The payment of
consideration of a medical service is paid by some third party and is treated under the
ambit of this Act.
3. As established that there was medical negligence on part of the appellants the
appellants are liable for deficiency in service under the CPA act and are liable to
compensate the respondent.

4. However, the respondent is aggrieved by the inadequate amount of compensation that

was awarded by the consumer fora. The respondent would like to rely on the
multiplier method.

5. The Hon’ble Supreme Court in Sarla Verma vs. Delhi Transport Corporation9  noted
that “the lack of uniformity and consistency in awarding compensation has been a
matter of grave concern. If different tribunals calculate compensation differently on
the same facts, the claimant, the litigant, the common man will be confused,
perplexed, and bewildered. If there is significant divergence among tribunals in
determining the quantum of compensation on similar facts, it will lead to
dissatisfaction and distrust in the system.”

6. The defendants in most medical negligence cases assert that the method of
determining compensation ought to be the multiplier method. As noted in Balram

7
Indian Medical Association vs. V.P. Shantha 1996 AIR 550
8
Section 2(1) (o) of the Consumer Protection Act, 1986
9
Sarla Verma vs. Delhi Transport Corporation (2009) 6 SCC 121

15
 1st INTRA MOOT COMPETITION, 2021

Prasad vs. Kunal Saha10. The principal argument in favour of using such a method is
uniformity and predictability. The multiplier method was created to facilitate
awarding compensation in relation to motor vehicle accidents to calculate no-fault
liability. However, compensation that is solely based on the income of the victim
would imply that medical negligence causing death or injury to a wealthy individual
is worth more than medical negligence that impacts an unemployed individual or
homemaker or a child or senior citizen. The Supreme Court has, therefore, refused to
restrict compensation to the multiplier method in the case of medical negligence.
Therefore, it accounts for the loss of income of the victim only. This sum is calculated
by taking into account the multiplicand, i.e., the victim's salary minus the amount he
spends on himself, and the multiplier, that is, the total number of years that the victim
would have earned his salary. The multiplier is calculated by taking into account,
average life expectancy, the victim's age, the number of years that the victim will be
unemployed, and any other factors concerning the victim's health. The usual formula
utilized in calculating compensation is ((70-age) x annual income + 30% for inflation
- 1/3 for expenses). Further the Hon’ble Supreme court in Nizam's Institute of
Medical Sciences vs. Prashant S. Dhanaka11 has added other dimensions to the
calculation of compensation such as the medical costs incurred by the victim during
the litigation, cost of future medical expenses, compensation toward mental agony
and physical pain, and compensation toward loss of consortium and cost of litigation.

7. The respondent would like to rely on the above mentioned precedents and would like
to claim an amount of rupees 95 lakhs as compensation for the medical negligence
caused by the appellants.

10
Balram Prasad v. Kunal Saha, (2014) 1 SCC 384
11
Nizam's Institute of Medical Sciences vs. Prashant S. Dhanaka, (2009) 6 SCC 1

16
 1st INTRA MOOT COMPETITION, 2021

PRAYER

WHEREFORE, in the lights of the facts used, issues raised, arguments advanced and
authorities citied the counsel for the Respondent most humbly and respectfully prayed
that this Hon'ble court to direct the appellants to consider respondent's representations and
consequently direct the appellants to pay adequate compensation to the respondent,

1. For the loss/death of the husband of the respondent.

2. For pain, sufferings and mental agony she underwent.

The court may also be pleased to pass any other order, which this Hon'ble court may
deem fit in the light of justice, equity and good Conscience.

Sd/-

Counsel for the Respondent

17
1st INTRA MOOT COMPETITION, 2021

18