TEAM CODE: T18R

NOVICE MOOT COURT COMEPTITION, 2021

BEFORE THE HON’BLE HIGH COURT OF JUDICATURE, KINGS LANDING

IN THE MATTER BETWEEN

DR. CERSEI LANNISTER (Appellant)

V.

STATE OF KINGS LANDING (Respondent)

Criminal Appeal No.___ of 2021

-MEMORANDUM FOR RESPONDENT-

MEMORANDUM for RESPONDENT TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF ABBREVIATONS ............................................................................................... III

INDEX OF AUTHORITIES ..................................................................................................... V

STATEMENT OF JURISDICTION ...................................................................................... VII

STATEMENT OF FACTS.................................................................................................... VIII

ISSUES RAISED ...................................................................................................................... X

SUMMARY OF ARGUMENTS ............................................................................................. XI

ARGUMENTS ADVANCED ................................................................................................... 1

ISSUE 1: WHETHER OR NOT THE STANCE OF THE APPEAL IS MAINTAINABLE IN THE COURT OF
LAW? .......................................................................................................................................... 1

[1.1] THE PRESENT APPEAL IS NOT MAINTAINABLE .............................................................. 1

ISSUE 2: WHETHER OR NOT THE ACT OF DR. CERSEI LANNISTER AMOUNTS TO NEGLIGENCE ON
HER PART? .................................................................................................................................. 2

[2.1] THERE WAS ILLEGAL OMISSION ON THE PART OF DR CERSEI LANNISTER .................... 2

[2.2] THE APPELLANT ACTED IN DISREGARD OF THE LIFE AND SAFETY OF THE PATIENT ...... 4

[2.3] THE APPELLANT’S CONDUCT FELL BELOW THAT OF THE STANDARD OF A REASONABLY
COMPETENT PRACTITIONER.................................................................................................. 5

ISSUE 3: THE TRIAL COURT HAS NOT ERRED IN FINDING DR CERSEI LANISTER GUILTY OF
MEDICAL NEGLIGENCE UNDER SECTION 304A OF IPC. .............................................................. 6

[3.1] THE DEATH OF THE PATIENT WAS CAUSED BY THE NEGLIGENCE ACT OF DR. CERSEI
LANNISTER .......................................................................................................................... 6

[3.2] THE DOCTOR’S ACT CAUSED HURT ENDANGERING LIFE OR PERSONAL SAFETY OF THE
PATIENT ............................................................................................................................... 7

[3.3] ARGUENDO, DR CERSEI IS GUILTY OF CIVIL NEGLIGENCE IF NOT MEDICAL

NEGLIGENCE UNDER SECTION 304A OF IPC ........................................................................ 8

[3.3.A] Dr Cersei had the duty of care to Mrs Danaerys Targaryen ............................... 8
[3.3.B] Dr Cersei Lannister breached the duty of care ................................................... 9

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MEMORANDUM for RESPONDENT TABLE OF CONTENTS

[3.3.C] Mrs Danaerys Targaryen suffered damages due to the breach of duty .............. 9
PRAYER ............................................................................................................................... XIII

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MEMORANDUM for RESPONDENT TABLE OF ABBREVIATIONS

TABLE OF ABBREVIATONS

§ Section

¶/¶¶ Paragraph/Paragraphs

& And

AIR All India Reporter

Annx. Annexure

am Anti Meridiem

Anr. Another

Art. Article

Crim LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure, 1973

Ed. Edition

HC High Court

i.e. id est (that is)

IPC Indian Penal Code

No. Number

Ors. Others

pm Post Meridiem

p/pp. Page/Pages

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MEMORANDUM for RESPONDENT TABLE OF ABBREVIATIONS

SC Supreme Court

SCC Supreme Court Cases

v. Versus

Vol. Volume

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MEMORANDUM for RESPONDENT INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

1. CASES

2. Abhishek Ahluwalia vs. Sanjay Saluja , MANU/CF/0363/2014 ......................................... 9

3. Bala Chandra v State of Maharashtra, AIR 1968 SC 1319.................................................. 3
4. Balwant Singh vs. State of Punjab and Ors., AIR 1987 SC 1080........................................ 6
5. Blyth v. Birmingham Water Works Co., (1856) 25 LJ Ex 213 ........................................... 8
6. Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586. ................ 5
7. Captain D'Souza vs. Pashupati Nath Sarkar, 1968 CriLJ 405 ........................................... 3
8. Chaman Lal v State, AIR 1954 AII 186 .............................................................................. 3
9. Cherubin Gregory vs State of Bihar, AIR 1964 SC 205. ..................................................... 2
10. Chinubhai Haridas Sheth v. State, (1959) 61 Bom LR 1309. .............................................. 2
11. Fardon v. Harcourt-Rivington, [(1932) 48 TLR 215] .......................................................... 5
12. Heaven v. Pender, (1883) 11 Q.B.D. 503 ............................................................................ 8
13. House of Lords in Whitehouse vs. Jordan & Anr., (1981) 1 ALL ER 267. ........................ 5
14. Jayprakash Laxman Tambe v. State of Maharashtra, (2003) 105 (4) Bom LR 714 ............ 6
15. Kishan Chand v. The State of Haryana, (1970) 3 SCC 904 ................................................ 5
16. Mahadev Prasad v state of UP, (2008) 14 SCC 479 ............................................................ 2
17. Mohd. Aynuddin v State of A.P., AIR 2000 SC 2511 ......................................................... 6
18. Penu alias Pannu Sethi v. State, 1983 Crimes 87 ................................................................ 4
19. Phillips India Ltd. Vs. Kunju Punnu, AIR 1975 Bom 306 .................................................. 8
20. Pioneer Alloy Castings Ltd. vs Collector Of C. Ex., 1997 (95) ELT 72 Tri Del. ............... 2
21. R. v. Adomako, [1994 (3) AII E.R. 79]. .............................................................................. 5
22. R. v. Briggs, (1977) 1 AII ER 475 ....................................................................................... 4
23. R. v. Caldwell, [1981] 1 All ER 961.................................................................................... 3
24. Ram Bharosey vs State Of Uttar Pradesh, AIR 1954 SC 704 ............................................. 4
25. Rohini Mahendranath Jindal vs. State of Gujarat, MANU/GJ/0933/2018 .......................... 3
26. S.N. Hussain vs State of A.P., AIR 1972 SC 685. ............................................................... 3
27. State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 53.............................................. 6
28. State through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda, (2012) 3 SCC (Cri.) 899 7
29. Sudhaben Kantilal Shah vs. State of Gujarat, (1974) 3 SCC 587. ....................................... 3
30. Supadi Lukadu vs Emperor, AIR 1925 Bom 310. ............................................................... 3

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MEMORANDUM for RESPONDENT INDEX OF AUTHORITIES

STATUTES

1. Indian Constitution, 1950.

2. Indian Penal Code, 1860.
3. The Criminal Procedure Code, 1973.
4. Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

BOOKS

1. Dr. R.K Bangia, Law of Torts (24th Edition, 2018)

2. Ratanlal & Dhirajlal, The Law of Torts (Lexis Nexis, 2019)
3. Dr. Ashok K. Jain, Law of Torts (Ascent, 2019)
4. Winfield & Jolowicz, Tort, (19th Edition, 2014)
5. K.D. Gaur, Indian Penal Code, (6th Edition, 2016)
6. Batuk Lal, “Commentary on the Indian Penal Code, 1860”, Ed. R. P. Kataria and S. K. A.
Naqvi, Vol-I, (Section 1 to 300), (Orient Publishing Company, 1st Edn. New Delhi)
(2006-07).
7. Dr. Hari Singh Gour, “The Penal Law of India”, (Law Publishers (India) Pvt. Ltd., 11th
Edn.) (2006).
8. Princep's Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005).
9. Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006).

WEBSITES

o www.lexisnexisacademic.com

o www.manupatrafast.com

o www.scconline.com

o www.legalindia.com

o www.lawyersclubindia.com

o www.indiankanoon.org

o www.casemine.com

o www.lawctopus.com

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MEMORANDUM for RESPONDENT STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Respondent have approached the Hon’ble High Court under Section 374 (2) of the Code
of Criminal Procedure. The Respondent, with the permission of this Hon’ble Court, would
like to seek the right to argue on the maintainability of the Appeal as well as the jurisdiction
of the Hon’ble court to entertain the same.

Section 374 (2) of the Code of Criminal Procedure:

Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven
years [has been passed against him or against any other person convicted at the same trial];
may appeal to the High Court.

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MEMORANDUM for RESPONDENT STATEMENT OF FACTS

STATEMENT OF FACTS

BACKGROUND

Dr Cersei Lannister was a Geneticist in Iron Lands Hospital, Kings Landing and Mrs Danaerys
Targaryen was a patient in that hospital who was suffering from a rare, life-threatening
syndrome called Khaleesi syndrome. Her family left her in Kings Landings for her further
treatment and had appointed Mrs Sansa Stark, an 18-year-old caretaker for her. Living in the
hospital for the past 12 years had almost broken Mrs Targaryen from inside. She had started
avoiding medications even after strict warnings by doctors and several times even overdosed
tonics consisting of alcoholic contents. Dr Cersei came to know about this condition of Mrs
Targaryen and became quite sympathetic when she realised that Mrs Targaryen had not been
out of the hospital even once in these 12 years and became determined to discover any possible
way to help her.

EVENTS

Subsequently, through her research, she discovered that the precise cause of the ‘KHALEESI’
disease is reportedly unknown. She found out about a Project named The Seven Kingdoms”,
and in the data presented under this project found out that Greyjoy Labs, the same company,
which manufactured Mrs Targaryen’s medicines of the KHALEESI disease, in research have
claimed that the drug they were marketing for Huntington’s disease has also cured a
considerable percentage of the KHALEESI disease patients as well. However, the chance of
the treatment being fatal is expected to be 30 per cent at her age. She decided to bring this up
to Mrs Targaryen as an option and tell her about the odds, to which Mrs Targaryen replied “I’m
really thankful for the care and time my doctors have given me, but it’s just not enough just to
be alive. I want to live” and consented to it. Dr Cersei wrote a detailed application mentioning
the medical history and current scenario of Mrs Targaryen’s health condition on 25th March
2020 to Greyjoy Labs to ask for the drug but her application got rejected by the Managing
Director of Greyjoy Labs, Mr Jon Snow, stating that the drug hasn’t been completely approved
by Food and Drug Administration, it is yet being experimented. Dr Cersei found out that the
Greyjoy Labs never really wished to introduce the cure of the KHALEESI disease in the
medical world, this fumed Dr Cersei and stole the sample drug sent by the lab to their hospital

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MEMORANDUM for RESPONDENT STATEMENT OF FACTS

for the patients with Huntington’s disease. After getting the drug she asked Mrs Targaryen
whether to give her the dose and she gave her verbal consent to Dr Cersei in front of Sansa.

CLASH

Within a week Mrs Targaryen showed a miraculous recovery, and on 1st May 2020, she was
declared fully cured of the disease and Dr Cersei discharged her the very next day without even
keeping her under observation. On 7th May 2020, the news of Mrs Targaryen’s death came as
a shock. The postmortem reports of Mrs Targaryen confirmed that she had died of a
Cardiopulmonary Arrest, it was registered as a case of “sudden unexplained death (SUD)”.

POST CLASH

The husband of Mrs Targaryen sued the Hospital under Section 304A for causing death by
medical negligence. The Trial Court on 26th December 2020 convicted Dr Cersei under section
304A IPC read with Section 90 and Section 337 of IPC and approved the suspension of her
license. Now Dr Cersei Lannister has filed an appeal before the Hon’ble High Court of Kings
Landing against her conviction in Trial Court.

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MEMORANDUM for RESPONDENT ISSUES RAISED

ISSUES RAISED

-I-

Whether or not the stance of the appeal is maintainable in the court of law?

-II-

Whether or not the act of Dr. Cersei Lannister amounts to negligence on her part?

-III-

Whether or not the Trial Court has erred in finding Dr. Cersei Lannister guilty of Medical
Negligence under Section 304A of IPC?

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MEMORANDUM for RESPONDENT SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

[1] THE PRESENT APPEAL IS NOT MAINTAINABLE.

This appeal is filed by the accused Dr. Cersei Lannister against the judgement dated 26.10.2020
passed by the Trial Court to try offence under Indian Penal Code by which Dr. Cersei Lannister
was convicted under section 304A IPC read with Section 90 and Section 337 of IPC. As the
offence under Section 304A of IPC is triable by Judicial Magistrate of the first class and the
present appeal is filed by the accused against an order of conviction passed by the lower Court
as Judicial Magistrate of the First Class then the appropriate provision applicable to the fact
situation herein is Sub-Section (3) of Section 374 Cr.P.C. When the lower Court as Judicial
Magistrate of the First Class for trial of offences under the Act passed the impugned order of
conviction, remedy of the appellants is to invoke Section 374(3) Cr.P.C and to present this
appeal before the Court of Session concerned. Hence, it can easily be concluded that this appeal
is not liable to be entertained by this Court as it would not lie to this Court.

[2] THE ACT OF DR. LANNISTER AMOUNTS TO NEGLIGENCE ON HER PART.

Though the term “negligence” has not been defined in the IPC, it may be stated that negligence
is the omission to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs would do, or doing something which a
reasonable and prudent man would not do. In the present case also, even after the application
for asking for the drug got rejected, Dr. Cersei gave Mrs. Targaryen the dose of the drug which
had not been completely approved by Food and Drug Administration and it was at experiment
stage. So, using unapproved drug instead of approved drug is illegal omission on her side.
Hence, it is concluded that there was illegal omission on the part of Dr. Cersei Lannister. Hence
it is concluded that the act of Dr. Lannister amounts to negligence on her part.

[3] THE TRIAL COURT HAS NOT ERRED IN FINDING DR. CERSEI LANISTER GUILTY
OF MEDICAL NEGLIGENCE UNDER SECTION 304A OF IPC.

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MEMORANDUM for RESPONDENT SUMMARY OF ARGUMENTS

Whoever causes the death of any person by doing any rash or negligent act not amounting to
culpable homicide, shall be liable for criminal negligence. In the instant case, negligence
indicates total negligence on the part of the doctor. It means that she was giving the drug in
such a negligent way which would stamp her giving drug by only word “negligence. Whoever
causes hurt to any person by doing any act so rashly or negligently as to endanger human life,
or the personal safety of others is liable for causing hurt by act endangering life or personal
safety of others. In the instant case, Mrs Targaryen was suffering from a rare disease. Still, Dr
Cersei discharged her very next day without even keeping her under observation. The drug she
administered Mrs Targaryen was in its experimental stage and hasn’t been completely
approved by Food and Drug Administration. The chance of treatment being fatal was 30 per
cent. So, in light of the above arguments; it can be concluded that the act of doctor was so rash
and negligent to endanger patient’s life. In an action for negligence against a doctor, the
plaintiff has to prove three things viz.- a) The doctor was under a duty to take reasonable care
towards the plaintiff, to avoid damage complained of, or not to cause damage to the patient by
failure to use reasonable care. b) there has to be a breach of the Duty of Care on the part of the
doctor. c) it must be shown that the Breach of duty was the real cause of the damage complained
of, and such damage was reasonably foreseeable. Dr Cersei breached the Duty of care and
breach of duty was the real cause of her death and It was reasonably foreseeable that such
breach of Duty can lead to patient’s death. Hence, the Trial Court has not erred in finding Dr.
Cersei Lannister guilty of Medical Negligence under Section 304A of IPC.

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MEMORANDUM for RESPONDENT ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

ISSUE 1: WHETHER OR NOT THE STANCE OF THE APPEAL IS MAINTAINABLE IN THE

COURT OF LAW?

[1.1] THE PRESENT APPEAL IS NOT MAINTAINABLE

It is most humbly submitted that the present appeal is not maintainable. This appeal is filed by
the accused Dr. Cersei Lannister against the judgement dated 26.10.2020 passed by the Trial
Court to try offence under Indian Penal Code by which Dr. Cersei Lannister was convicted
under section 304A IPC read with Section 90 and Section 337 of IPC. As against an order of
conviction, appeals are preferred in accordance with Section 374 of CrPC.1

374(2) CrPC- Any person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for
more than seven years has been passed against him or against any other person convicted at
the same trial], may appeal to the High Court.
374(3) CrPC- Save as otherwise provided in sub- section (2), any person,-
a. convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or
Magistrate of the first class, or of the second class, or
b. sentenced under section 325, or
c. in respect of whom an order has been made or a sentence has been passed under section
360 by any Magistrate, may appeal to the Court of Session.

As the offence under Section 304A of IPC is triable by Judicial Magistrate of the first class and
the present appeal is filed by the accused against an order of conviction passed by the lower
Court as Judicial Magistrate of the First Class then the appropriate provision applicable to the
fact situation herein is Sub-Section (3) of Section 374 Cr.P.C. When the lower Court as Judicial
Magistrate of the First Class for trial of offences under the Act passed the impugned order of
conviction, remedy of the appellants is to invoke Section 374(3) Cr.P.C and to present this

1
S.374, Code of Criminal Procedure, 1973.

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MEMORANDUM for RESPONDENT ARGUMENTS ADVANCED

appeal before the Court of Session concerned. Even though the lower Court is presided over
by an officer of the rank of District Judge (either entry level or selection grade or super time
scale), still the said officer while disposing of the criminal cases under the Act functions only
as Judicial Magistrate of the First Class and exercises powers as such enumerated under the
Code of Criminal Procedure, 1973 (in short, Cr.P.C). In such case, the appellate forum against
an order of conviction passed by the lower Court has to be only in relation to capacity of the
lower Court in which the impugned order of conviction was passed. It can easily be concluded
that this appeal is not liable to be entertained by this Court as it would not lie to this Court.2

ISSUE 2: WHETHER OR NOT THE ACT OF DR. CERSEI LANNISTER AMOUNTS TO

NEGLIGENCE ON HER PART?

It is most humbly contented that the act of Dr. Lannister amounts to negligence on her part.
There appears to be no ingredient of the offence in relation to criminal negligence. There was
illegal omission on the part of Dr. Cersei Lannister (2.1). The Appellant acted in disregard of
the life and safety of the patient (2.2). The appellant’s conduct fell below that of the standard
of a reasonably competent practitioner (2.3).

[2.1] THERE WAS ILLEGAL OMISSION ON THE PART OF DR. CERSEI LANNISTER

Though the term “negligence” has not been defined in the IPC, it may be stated that negligence
is the omission to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs would do, or doing something which a
reasonable and prudent man would not do.3 The expression “act” does undoubtedly include
unless the contest otherwise warrants an illegal omission (vide s. 32 of the Penal Code, 1860).4
An illegal omission if negligent, may be liable for criminal negligence.5 The culpability arises
when the accused is in reckless state of mind where he has the knowledge that his acts do have

2
Pioneer Alloy Castings Ltd. vs Collector Of C. Ex., 1997 (95) ELT 72 Tri Del.
3
Mahadev Prasad v state of UP, (2008) 14 SCC 479.
4
Chinubhai Haridas Sheth v. State, (1959) 61 Bom LR 1309.
5
Cherubin Gregory vs State of Bihar, AIR 1964 SC 205.

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MEMORANDUM for RESPONDENT ARGUMENTS ADVANCED

the consequence of causing injury to others.6 Culpable rashness is acting with consciousness
that mischievous consequences are likely to follow, although the individual may hope that such
consequences may not follow and often with belief that the actor has taken sufficient
precautions to prevent their happening. The criminality lies in not taking the precautions to
prevent the happening of the consequence in the hope that they may not happen.7 “culpable
negligence’ is acting without the consciousness that illegal and mischievous effect will follow,
but in circumstances which show that the actor has not exercised the caution required of him
and that if he had he would have had the consciousness. The imputability arises from the
neglect of the civic duty of circumspection.8

Since there is no moral difference between (i) a positive act and (ii) an omission when a duty
is established, it is to be borne in mind that cases of omissions, the liability should be
exceptional and needs to be adequately justified in each instance. Secondly, when it is imposed
this should be done by clear statutory language. Verbs primarily denoting (and forbidding)
active conduct should not be construed to include omissions except when the statute contains
a genuine implication to this effect.9 Thirdly, maximum penalties applied to active wrongdoing
should not automatically be transferred to corresponding omissions; penalties for omissions
should be re-thought in each case.10 Indeed, the Indian Penal Code, 1860 does include explicitly
the liability due to omissions and even Indian courts have affirmed so.11 In the case of Latif
khan (1895) 20 Bom 394, wherein the law imposes a duty to act on a person, his illegal
omission to act renders him liable to punishment. In view of express provisions of Section 32
of I.P.C., an illegal omission is at par with a culpable act causing the effect which amounts to
an offence.12 Under Section 32, I.P.C. an illegal omission would constitute an 'act' in law and
under Section 43 of the Code the word 'illegal' is applicable to everything which is an offence
or which is prohibited by law or which furnishes ground for a Civil action. An illegal omission
thus is an 'act' under Section 304A, I.P.C. and may constitute an offence if it is negligent.13 In
the present case also, even after the application for asking for the drug got rejected,14 Dr. Cersei
gave Mrs. Targaryen the dose of the drug which had not been completely approved by Food

6
R. v. Caldwell, [1981] 1 All ER 961.
7
Chaman Lal v State, AIR 1954 AII 186
8
Bala Chandra v State of Maharashtra, AIR 1968 SC 1319
9
S.N. Hussain vs State of A.P., AIR 1972 SC 685.
10
Supadi Lukadu vs Emperor, AIR 1925 Bom 310.
11
Rohini Mahendranath Jindal vs. State of Gujarat, MANU/GJ/0933/2018
12
Sudhaben Kantilal Shah vs. State of Gujarat, (1974) 3 SCC 587.
13
Captain D'Souza vs. Pashupati Nath Sarkar, 1968 CriLJ 405
14
Moot prop para 9.

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MEMORANDUM for RESPONDENT ARGUMENTS ADVANCED

and Drug Administration and it was at experiment stage.15 So, using unapproved drug instead
of approved drug is illegal omission on her side. Hence, it is concluded that there was illegal
omission on the part of Dr. Cersei Lannister.

[2.2] THE APPELLANT ACTED IN DISREGARD OF THE LIFE AND SAFETY OF THE PATIENT

The Supreme Court had held in Jacob Mathew vs. State of Punjab and Ors.16 that it must be
proved that the medical professional acted in disregard of the life and safety of the patient. In
order to establish criminal liability the facts must be such that the negligence of the accused
went beyond a mere matter of compensation and showed such disregard for life and safety of
others as amount to crime.17 The criminality lies in running the risk of doing such an act with
recklessness and in difference to the consequences.18 It has been held that a man is reckless in
the sense required when he carries out a deliberate act knowing that there is some risk of
damage resulting from the act but nevertheless continues in the performance of that act.19 To
decide whether someone has been 'reckless', whether harmful consequences of a particular kind
will result from his act, as distinguished from his actually intending such harmful consequences
to follow, does call for some consideration of how the mind of the ordinary prudent individual
would have reacted to a similar situation.20 According to Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002,21 pt. 1.7, The Principal objective of the
medical profession is to render service to humanity with full respect for the dignity of
profession and man. Physicians should merit the confidence of patients entrusted to their care,
rendering to each a full measure of service and devotion. Physicians should try continuously to
improve medical knowledge and skills and should make available to their patients and
colleagues the benefits of their professional attainments. The physician should practice
methods of healing founded on scientific basis and should not associate professionally with
anyone who violates this principle. The honoured ideals of the medical profession imply that
the responsibilities of the physician extend not only to individuals but also to society. The act
done by Dr. Cersie was not only dangerous to the patient Mrs. Targeryan but also to the society
as large as it is expected from a learned medical profession to practice with utmost care and

15
Moot Prop. Para 9.
16
Jacob Mathew vs. State of Punjab and Ors, (2005) 6 SCC 1.
17
Penu alias Pannu Sethi v. State, 1983 Crimes 876
18
Ram Bharosey vs State Of Uttar Pradesh, AIR 1954 SC 704.
19
R. v. Briggs, (1977) 1 AII ER 475
20
Supra note 6.
21
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002

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MEMORANDUM for RESPONDENT ARGUMENTS ADVANCED

the act rendered by Dr. Cersie is dangerous as large as she was trying an unapproved drug to
the patient as an experiment which may result into negative consequences.

A doctor will be held criminally responsible for the patient’s death when his negligence
showed such disregard for life and safety of his patient as to amount to a crime against the
state.22 If the possibility of the danger is reasonably apparent, then to take no precautions is
negligence23. In the present case, Greyjoy Labs, the same company, which manufactured Mrs.
Targaryen’s medicines of the Khaleesi disease, in a research have claimed that the drug they
were marketing for Huntington’s disease has also cured a considerable percentage of the
Khaleesi disease patients as well but the chance of the treatment being fatal was expected to be
30 percent at her age.24 Dr. Cersei gave the dose of legally not approved drug and the drug was
also not for the disease that the Mrs. Targaryen was suffering from.25 Administering the drug
just on the basis of the claims of the company and being the expected fatality of 30 percent, the
possibility of the danger amounting to death was reasonably apparent and that happened also.
Hence, it is concluded that the appellant acted in disregard of the life and safety of the patient.

[2.3] THE APPELLANT’S CONDUCT FELL BELOW THAT OF THE STANDARD OF A REASONABLY
COMPETENT PRACTITIONER

A medical practitioner would be liable only where his conduct fell below that of his standard
of a reasonably competent practitioner in his field.26 If it is one that would not have been made
by a reasonably competent professional man professing to have the standard and type of skill
that the defendant holds himself out as having and acting with ordinary care, then it is
negligence.27 Negligence in the context of medical profession necessarily calls for a treatment
with a difference.28Any reasonably competent practitioner give the drugs which have been
approved by the Food and Drug Administration, to the patients. But in the present case, Dr.
Cersei Lannister had given the drug which was not legally approved by the Food and Drug
Administration to the patient. Thus, it is concluded that the appellant’s conduct fell below that
of a reasonably competent practitioner.

22
R. v. Adomako, [1994 (3) AII E.R. 79].
23
Fardon v. Harcourt-Rivington, [(1932) 48 TLR 215].
24
Moot prop para 7.
25
Moot prop para 9.
26
Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586.
27
House of Lords in Whitehouse vs. Jordan & Anr., (1981) 1 ALL ER 267.
28
Kishan Chand v. The State of Haryana, (1970) 3 SCC 904

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MEMORANDUM for RESPONDENT ARGUMENTS ADVANCED

ISSUE 3: THE TRIAL COURT HAS NOT ERRED IN FINDING DR. CERSEI LANISTER
GUILTY OF MEDICAL NEGLIGENCE UNDER SECTION 304A OF IPC.

It is most humbly contented that the Trial Court has not erred in finding Dr. Cersei Lanister
guilty of Medical Negligence under Section 304A of IPC. The death of the patient was caused
by the negligence act of Dr. Cersei Lannister (3.1). The doctor’s act caused hurt endangering
life or personal safety of the patient (3.2). Arguendo, Dr Cersei is guilty of Civil Negligence if
not Medical Negligence under section 304A of IPC (3.3).

[3.1] THE DEATH OF THE PATIENT WAS CAUSED BY THE NEGLIGENCE ACT OF DR. CERSEI
LANNISTER

"Causing death by negligence- Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.”29 The
words , “negligence” and “rashness” used in the section 304A of Indian Penal Code, 1860 have
to be understood in proper sense and in proper spirit.30 A rash act is primarily an overhasty act
and is opposed to deliberate act.31 The provisions of this Section apply to cases where there is
no intention to cause death and no knowledge that the act done in all probabilities will cause
death.32 Legally, in a case of rash and negligent act, if the prosecution is able to prove the
essential ingredients of the offence, the onus to disprove it shifts upon the opponent to show
that he had taken due care and caution to avoid the accident.33 In the instant case, negligence
indicates total negligence on the part of the doctor. It means that she was giving the drug in
such a negligent way which would stamp her giving drug by only word “negligence.” Causing
death by rash or negligent act involves hazarding a dangerous or wanton act with the knowledge
that it may cause injury, or gross and culpable neglect or failure to exercise reasonable and
proper care. But there is no intention to cause injury, or knowledge that it will probably be
caused. The criminality lies in running the risk of doing such an act with reckless or
indifference as to its consequences (i.e without belief in the result of such doing). In State

29
S.304A, Indian Penal Code, 1860.
30
Jayprakash Laxman Tambe v. State of Maharashtra, (2003) 105 (4) Bom LR 714.
31
Mohd. Aynuddin v State of A.P., AIR 2000 SC 2511.
32
Balwant Singh vs. State of Punjab and Ors., AIR 1987 SC 1080.
33
State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 538

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through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda,34 the Hon'ble Apex Court was
pleased to observe the following:
We may profitably deal with the definition of "reckless" as defined in The Law Lexicon, which
reads as under:
"Reckless- Characterized by the creation of a substantial and unjustifiable risk of harm to others
and by a conscious (and sometimes deliberate) disregard for or indifference to that risk;
heedless; rash. Reckless conduct is much more than mere negligence: it is a gross deviation
from what a reasonable person would do.35
“Intention cannot exist without foresight, but foresight can exist without intention. For a man
may foresee the possible or even probable consequences of his conduct and yet not desire them
to occur; none the less if he persists on his course he knowingly runs the risk of bringing about
the unwished result. To describe this state of mind the word "reckless" is the most appropriate.”
Rashness indicates that he gave the drug in such a way that while giving the drug she knows
that such act is likely to invite an accident that hopes that such accident may not occur. In the
instant case, negligence indicates total negligence on the part of the doctor. It means that she
was giving the drug in such a negligent way which would stamp her act by only word
negligence.

[3.2] THE DOCTOR’S ACT CAUSED HURT ENDANGERING LIFE OR PERSONAL SAFETY OF THE
PATIENT

Causing hurt by act endangering life or personal safety of others—Whoever causes hurt to any
person by doing any act so rashly or negligently as to endanger human life, or the personal
safety of others.36 In the instant case, Mrs Targaryen was suffering from a rare disease. Still,
Dr Cersei discharged her very next day without even keeping her under observation.37 The drug
she administered Mrs Targaryen was in its experimental stage and hasn’t been completely
approved by Food and Drug Administration.38 The chance of treatment being fatal was 30 per
cent. So, in light of the above arguments; it can be concluded that the act of doctor was so rash
and negligent to endanger patient’s life.

34
State through PS Lodhi Colony, New Delhi vs. Sanjeev Nanda, (2012) 3 SCC (Cri.) 899.
35
Black's Law Dictionary, (7th Edn., 1999).
36
S.337, Indian Penal Code, 1860.
37
Moot Proposition Para 12.
38
Moot Proposition Para 9.

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[3.3] ARGUENDO, DR CERSEI IS GUILTY OF CIVIL NEGLIGENCE IF NOT MEDICAL

NEGLIGENCE UNDER SECTION 304A OF IPC

It is humbly submitted that Dr Cersei is guilty of Civil negligence if not Medical negligence.
Negligence is the omitting to do something that a reasonable man would do, or the doing of
something which a reasonable man would not do.39 Actionable negligence consists in the
neglect of the use of ordinary care or skill towards a person whom the defendant owes a duty
of observing ordinary care or skill, by which neglect the plaintiff has suffered injury, to his
person or property.40 In an action for negligence against a doctor, the plaintiff has to prove
three thing viz.- a) The doctor was under a duty to take reasonable care towards the plaintiff,
to avoid damage complained of, or not to cause damage to the patient by failure to use
reasonable care. b) there has to be a breach of the Duty of Care on the part of the doctor. c) it
must be shown that the Breach of duty was the real cause of the damage complained of, and
such damage was reasonably foreseeable 41 In the instant case, Dr Cersei had the duty of care
to Mrs Danaerys Targaryen (3.3.A). Dr Cersei Lannister breached the duty of care (3.3.B). Mrs
Danaerys Targaryen suffered damages due to the breach of duty (3.3.C).

[3.3.A] DR CERSEI HAD THE DUTY OF CARE TO MRS DANAERYS TARGARYEN

A doctor when consulted by a patient owes him certain duties, viz. a duty of care in deciding
whether to undertake the case, a duty of care in deciding what treatment to give and a duty of
care in administration of that treatment.42 In the instant case, from the past 12 years,43 Mrs
Danaerys Targaryen was a patient of Iron Lands Hospital, Kings Landing. 44 Dr Cersei
Lannister was a Geneticist in the same hospital45 and was in the charge of Mrs. Targaryen’s
treatment. In light of the abover arguments, it can be concluded that Dr Cersei owed the duty
of care to Mrs Danaerys Targaryen.

39
Blyth v. Birmingham Water Works Co., (1856) 25 LJ Ex 213.
40
Heaven v. Pender, (1883) 11 Q.B.D. 503.
41
Phillips India Ltd. Vs. Kunju Punnu, AIR 1975 Bom 306.
42
Id.
43
Moot Prop. Para 4
44
Moot Prop. Para 2
45
Moot Prop. Para 1

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[3.3.B] DR CERSEI LANNISTER BREACHED THE DUTY OF CARE

Negligence is a breach of duty to take care resulting in damage to one person or property.46 In
an action for negligence against a doctor, there has to be a breach of the Duty of Care on the
part of the doctor.47 In the instant case, Dr Cersei owed duty of care to Mrs Targaryen but she
discharged Mrs Targaryen very next day without even keeping her under observation.48 She
stole the sample drug sent by the Greyjoy labs to their hospital for the patients of Huntington’s
diseases.49Also, she did not inform any of Mrs Targaryen’s relative about the consent.
Although, she took the consent of Mrs Targaryen in front of Sansa but she was not her legal
guardian.50 In light of the above stated arguments, the consent was not vaild; and Dr Cersei
breached the Duty of care.

[3.3.C] MRS DANAERYS TARGARYEN SUFFERED DAMAGES DUE TO THE BREACH OF DUTY

In order to make doctor liable for Negligence, it must be shown that the Breach of duty was
the real cause of the damage complained of, and such damage was reasonably foreseeable.51 In
the instant case, the death of Mrs Targaryen happened within One week of her treatment. Mrs
Targaryen was admitted in the hospital 12 years ago and she was suffering from a rare, life-
threatening syndrome.52 During this course of time, she did not die but just after a week of her
treatment her death news came. It was registered as a case of “sudden unexplained death
(SUD)”. Also, the drug Dr Cersei administered Mrs Targaryen was in its experimental stage
and hasn’t been completely approved by Food and Drug Administration. The chance of
treatment being fatal was expected to be 30 per cent at her age. 53 So, it was quite foreseeable
that this can lead to patient’s death. In light of the above arguments, it can be concluded that

46
Abhishek Ahluwalia vs. Sanjay Saluja , MANU/CF/0363/2014.
47
Supra note 41.
48
Moot Prop. Para 12.
49
Moot Prop. Para 11.
50
Moot Prop. Para 3.
51
Supra note 41.
52
Moot Prop Para 2.
53
Moot Prop Para 7.

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breach of duty was the real cause of her death and It was reasonably foreseeable that such
breach of Duty can lead to patient’s death.

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MEMORANDUM for RESPONDENT PRAYER

PRAYER

WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED, AND AUTHORITIES

CITED, IT IS HUMBLY PRAYED THAT THIS HON’BLE COURT

I. The stance of appeal is not maintainable;

II. The act of Dr Cersei Lannister amounts to negligence on her part; and
III. The Trial Court hasn’t erred in finding Dr Cersei Lannister guilty of Medical
Negligence under Section 304A of IPC.
IV. Dr Cersei is guilty of Civil Negligence if not Medical Negligence under Section
304A of IPC.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON’BLE COURT MAY DEEM
FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is humbly prayed,

T-18

Counsels for The Respondent

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