TEAM CODE : 10

IN THE HON’BLE COURT OF RANVICORA,RENAC

Appeal No.___ of 2018

IN THE MATTER BETWEEN

Dr. Andrew Holland ......Appellant

v.

Mr. Jacob Smith ......Respondent

MEMORANDUM ON THE BEHALF OF RESPONDANT [MR. SMITH]

 TABLE OF CONTENT

ABBRIVATIONS..................................................................................

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

CASES...............................................................................................

BOOKS..............................................................................................

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

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

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

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

ARGUMENT ADVANCED...................................................................

ISSUE ONE......................................................................................

ISSUE TWO.....................................................................................

PRAYER..................................................................................................
 STATEMENT OF JURISDICTION

The respondent has appeared in response to the appeal filed by the appellant Dr. Andrew
Holland in the Hon’ble High Court under the section 96 of Code of Civil Procedure, 1986.

ABBREVIATIONS
V. Versus

Thf Therefore

& and

HC High Court

Hon’ble Honourable

SCC Supreme Court Cases

AMT. Amount

CO. Company

Corpn. Corporation

LTD. Limited

AIR All India Report

SC Supreme Court

NOC No Objection Certificate

 INDEX OF AUTHORITIES

Table of Cases

Judicial decisions Citation Foot Note No.

Bhagwat Sarup v. Himalaya Gas Co. AIR 1985 H.P. 41 2
Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak AIR 1989 P.&H. 5,6
Bapu Godbole 183, at 185
Dr. Ummar v. K.M. Hameed AIR 2005 SC 3180 8
Jacob Mathew v. State of Punjab AIR 2005 SC 3180 4,9
Municipal Corpn. Of Greater Bombay v. Laxman AIR 2003 SC 4812 1
Iyer
National Insurance Co. v. V. Kastori Devi 1988 ACJ 8 (Raj.) 3

State of Gujarat v. Laxmiben Jayantilal Sikligar AIR 2000 Guj. 180 7

 STATEMENT OF FACTS

1.Jacob smith is the 50years old plaintiff who suffers from particular type of cancer known as
non-hodgkin lymphoma (cancer that start WBC and weakens our immune system

2.In the beginning his condition was presented as a substantial lump under his right arm. He
first seeks medical treatment in JULY2016, although the symptoms for the same was seems
18 months before itself to smith Due to constant reminder of his wife he consult a Dr Andrew
Holland (a general practitioner) .

3.Dr Holland was might be described as a ‘REGULAR DOCTOR’ of Mr smith it was found
in the record of Dr Holland that Mr smith attends his consultation infrequently .

4.Dr Holland considered Mr smith initial condition as lymphoma (collection of fatty tissue)
and after making his conclusion, Dr Holland did not did not refer to him to any specialist for
the confirmation of his examination

5.After consulting Dr Holland for six months smith moved to the city name renac, due to
inconvenient to continue with the treatment of Dr Holland in august 2017 Smith raised the
matter of lump to another general practitioner (Dr Anushka patel)who also came with same
opinion that lump was ‘probably a lipoma’ but for the confirmation she referred him to
princess Alexandria hospital(PAH) on non-urgent basis for his lump. The referral recorded
that the lump became larger since Mr smith noticed it and occur with increasing pain and
discomfort.

6.The consultant who examined Mr smith on his referral in nov 2017 has some doubt that the
lump was infact a lymphoma that after sometime tuned into non-hodgkin lymphoma

7.A CT scan on dec 2017 did not show any sigh that the disease is spread into any part of the
body. On 26 th january 2018 Mr smith admitted to PAH with intense chest pain. On further
examination it was found that it was a result of lymphoma spread into his left thorax.
8.Chemotherapy was arranged on six occasions followed by radiotherapy ‘to which the body
did not respond. Further it was decided that he will be subjected to high dose of
chemotherapy for harvesting of his stem cells .

9.In nov 2018 smith condition got worse when he developed a tumour in the right axilla
,which eventually resulted in poor medical condition further he was told that he would not
recover . In April 2019 ,there was another relapse which was never analysis before, for which
another calming chemotherapy was suggested.

10.As expected the result of all the original treatment on him and his life is highly destructive
.As a consequences he had to give up his work in august 2018 . he felt ill all the time and
week and lacking energy ever since.

11.Mr smith submitted his claim to the court for the loss and damage he suffered under
medical negligence. On the basis of the court observation was concluded below:

 In the 13 month period of time when Mr smith consulting with Dr holland and treatment

started, Dr Holland should advise the claimant to consult with specialist to achieve

complete information about the lump so there will be a chance of avoiding high dose of

chemotherapy.

 It was also stated that it is also not important that the competent general practitioner refer

the lump for further examination in all the cases .Such decision has only depend on clinical

judgement , which does not automatically translate the liability into negligence.

 The expert evidence from professor Stanhope was unquestioned and because of treating

the plaintiff as an example of the whole population of anaplastic large cell lymphoma

patient cause the delay in referral and because of delay in referral Mr smith initial chance

of remission decreases from 45% to 30%

 It is possible to say that without the adverse prognostic factors delay the plaintiff would
become disease free survivor , or avoided the high dose chemotherapy. He may done but it

is not possible to say

 What can be said is that Mr situation is negatively affected because of the delay in seeking

experts advice about the putative lipoma.

12.Based on what was, on the whole, an uncontested medical narrative of the progression of

Mr smith condition , I thereof make the following findings-

13.The negligent failure on the part of Dr Holland was a contribution to Mr smith condition.

If Dr Holland made a referral in july2016 it is more probable that Mr smith condition

will not became that much serious .

14.Both parties accept that the quantum of damage claimed by the plaintiff is an

appropriate amount should liability be found . That amt. As set and calculated below i

these reasons, is $185,000 plus $24,674 in interest under the appropriate scale .this is

not contested.

15.however,the court is anxious by the fact that Mr smith delayed in seeking any form

of medical advice for a period of 18 months .In this day and age ,it is not unreasonable

to accept that an individual will take adequate care for their own health and seek

medical opinion when appropriate faced with the symptom

16.Whilr,for obvious reasons, there is a lack of clinical evidence or opinion as to the precise
effect this delay might have had on the progression of Mr. Smith condition, I accept (as was
urged by the defendant counsel) that such delay amounted contributory negligence o the part
of the plaintiff as understood.

17.Accordingly, the amount of damage is reduced by 35%

 STATEMENT OF ISSUES

1-whether respondent is liable for contributory negligence with appellant or not?

2 whether appellant is liable for compensation of loss and damages suffered by respondent
under medical negligence?
 SUMMARY OF ARGUEMENTS

ISSUE 1: Whether the respondent is liable for contributory negligence with the
appellant or not?

Mr smith is not liable for the contributory negligence as the main fact, that there was a delay
of 18 months, was not the immediate cause of damage suffered also the fact was contributory
to the rules for determining contributory negligence as the contributory negligence act.

ISSUE 2: Whether the appellant is liable for compensation of loss and damages suffered
by respondent under medical negligence?

Dr Andrew Holland is liable for medical negligence as his act of not referring the diagnosis.
Although he did not recommend any specialist, it was against the reasonable duty of care
which a medical practitioner need to possesses toward the patient.
 ARGUMENTS ADVANCED

ISSUE ONE:

It is humbly submitted before the hon’ble high court that Mr. Smith is not liable for the
contributory negligence as explaining the concept of contributory negligence, the Supreme
Court in the case of Municipal Corpn. Of Greater Bombay v. Laxman Iyer,1 observed:

“Where an accident is due to negligence of both parties, substantially there would be

contributory negligence and both would be blamed. In a case of contributory negligence, the
crucial question on which liability depends would be whether either party could by exercise
of reasonable care, have avoided the consequence of other’s negligence. Whichever party
could have avoided the consequence of other’s negligence would be liable for the accident. If
a person’s negligent act or omission was the proximate and immediate cause of that, the fact
that the person suffering injury was himself negligent and also contributed to the accident or
other circumstances by which the injury was caused would not afford a defence to the other.”

In this matter, the fact of delay by Mr. Smith was not the immediate cause of damage
suffered, and thus, he cannot be held liable for the delay.

Also, the fact of delay does not fulfil the rules for determining contributory negligence as
prescribed by the Contributory Negligence Act. These rules are:

1. The context of negligence of the party in contributory negligence is not similar to

that of tort of negligence. Here, the party is not required to exercise reasonable care
of duty towards the other party, instead is required to possess that reasonable duty for
oneself. Thus, what is required for proving contributory negligence is to satisfy the
jury that the party did not possess the required reasonable duty of care for his own
interest and caused damage to himself. As in the case of Bhagwat Sarup v. Himalaya
Gas Co.,2 the court held that there was sole negligence on the part of the delivery man
and also observed that the mere fact of giving the axe to the man on his asking did
not imply contributory negligence as being a layman, it is not reasonable for him to
foresee the consequence for which the delivery man was given training and hence is
solely liable for the act. In this case as well, the mere fact of delay of 18 months did
1
A.I.R. 2003 SC 4182.
2
A.I.R. 1985 H.P. 41.
 not constitute the act of contributory negligence as being a common layman, it is
unreasonable for Smith to foresee the consequence of the lump being the reason for a
cancer.
2. Also, it is required to be proved that it is his lack of care towards his own safety. If
the defendant’s negligence would have caused the same damage even if the plaintiff
had been careful and the plaintiff’s negligence is not the operative cause of accident
or damage suffered, then the defence of contributory negligence cannot be pleaded.
In National Insurance Co. v. Kastoori Devi,3 there was an accident between a motor
cycle on which there were four persons including its driver, and a truck. It was held
that the mere fact that the motor cyclist was carrying three persons on the pillion seat
did not lead to the inference of contributory negligence on his part. He would be
liable for contributory negligence only if he lost control over the vehicle on account
of its overloading, and that contributed to the consequences.
In our case as well, mere the fact that there was delay of 18 months did not lead to
the inference of contributory negligence on his part, as the damage suffered by him
was due to the delay in referral of the diagnosis which Dr. Holland caused not by this
delay.
Therefore, from the above cited cases and facts it is been concluded that Mr. Smith
has not contributed to damage suffered by him.

ISSUE2

DUTY OF MEDICAL PEROFESSION

It is humbly submitted before the Hon’ble Court that Dr. Holland was negligent on his part
and was liable for medical negligence as-A person engaged in some particular profession is
supposed to have the requisite knowledge needed for the purpose and he has a duty to
exercise reasonable degree of care in the conduct of his duties .The standard of care needed in
a particular case depend on the professional skills expected from a person belonging to a
particular class .A surgeon or anesthetist will be judge by the standard of an average
practitioner of class to which he belongs or hold himself out to belongs . In case of specialist,
a higher degree of skill is needed4 .

DR DUTY OF CARE5

3
1988 A.C.J. 8 (Raj.).
4
Jacob Mathew v. State of Punjab, A.I.R. 2005 S.C. 3180.
5
Dr. L.B. Joshi v. Dr. T.B. Godbole, A.I.R. 1989P. & H. 183, at 185.
1.A duty of care in deciding whether to undertake the case;

2.A duty of care in deciding what treatment to give; and

3.A duty of care in the administration of the treatment

Explaining the nature of duty of care in the medical profession, the P. Vs H. High court
observed in DR. Lakshman Balkrishna Joshi Vs Trimbak Bapu Godbole6 :

“The petitioner must bring to his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the very highest nor very low degree of care and
competence judge in the light of the particular circumstances of each case is what the law
require. The doctor, no doubt, has a discretion in choosing treatment which he purposes to
give the patient and such discretion is relatively ampler in case of emergency.”

Similarly, in State of Gujarat v. Laxmiben Jayantilal Sikligar,7 the plaintiff who was suffering
from discomfort and pain in swallowing, etc. went to civil hospital at Godhra for treatment
and the Civil surgeon performed the surgery on her thyroid gland. Due to negligence in
performance in the operation she suffered permanent partial paralysis of larynx (voice box) as
a consequence of damage to or cutting of recurrent laryingal nerve.

The surgeon admitted that he made no attempt to identify and separate that nerve while
operating.

Out of the two nerves, which are there in human body, only one was damaged and, therefore,
the plaintiff had not lost her voice completely. She had difficulty in speaking in normal loud
voice, nor could she raise her voice for shouting. She also had difficulty in swallowing.

There was held to be negligence on the part of the surgeon to take appropriate precautions
before and during surgery.

The plaintiff was held entitled to a compensation of Rs. 1,20,000 under all heads plus interest
@12% p.a. from the date of the suit till realization.

DR. N. UMMAR v. K.M. HAMEED8

Biopsy was conducted on the patient by pathologist and illness was wrongly diagnosed as
tuberculosis, while the patient actually suffered from the cancer. As a result of wrong
diagnosis by expert in pathology, the patient died. Holding the pathologist liable to pay
compensation, the Kerala high court said that it was a clear case of medical negligence. The
court observed that:

When a person who possesses sufficient qualification in the field, is ready to give
medical advice and treatment as an expert in that field he impliedly undertakes that he
possesses all the sufficient skills and knowledge for such medical advice or treatment. Such a

6
A.I.R. 1989 P. & H. 183, at 185.
7
A.I.R. 2000 Guj. 180.
8
A.I.R. 2014 (NOC) 49 (Ker.).
person has duty to diagnose the illness and to decide the treatment to be given and the proper
medicine to be administered.

In the category are persons professing some special skills. Any task which require to be
performed with a special skill would generally be admitted or under taken to be performed
only if the person possesses the requisite skill for performing that task. The apex court in
JACOB MATHEW V. STATE OF PUNJAB9

Any reasonable man entering into a profession which require a particular level of learning to
be called a professional of that breach, impliedly assures the person dealing with him that the
skill which he professes to possess shall be exercised and exercised with reasonable degree of
care and caution he does not assure his client of the result . A lawyer does not tell his client
that the client shall win the case in all circumstances. (A physician would not assure that the
patient of full recovery in every care a surgeon cannot and does not guarantee that the result
of surgery would be invariably be beneficial, much less to be extent to be 100% for the
(person operated on). The only assurance will such a professional can give or can be
understood to have given by implication is that he is possessed with the requisite skill in that
branch of profession of which he is practicing and while undertaking the performance of his
task entrusted to him he would be exercising his skill with reasonable competence. Judged by
this standard, a professional may be held liable for negligence on one of two findings:
Either he was not possessed of the requisite skill which he possessed to have possessed, or he
did not exercise with the reasonable competence in the given case the skill which he did
possess. the standard to be applied for judging, whether the person charge has been negligent
or not would be that ordinary competent person exercising ordinary skill in that profession.

Therefore, on the basis of above findings, it is been concluded that there is medical
negligence on the part of Dr. Holland as being a medical practitioner, he has a reasonable
duty of care to foresee the seriousness and consequences associated with Mr. Smith’s
problem, which he did not perform. Thus, this act of omission made him liable for the act of
medical negligence.

9
A.I.R. 2005 S.C. 3180.
 PRAYER

Wherefore in the light of arguments advanced and authorities citied, the respondent most
humbly submits that the Hon’ble Bench may be pleased to adjust and declare that

1. There was no contributory negligence on the part of Mr. Jacob Smith.

2. There was a medical negligence on the part of Dr. Andrew Holland.

And may pass, any other order as it deems fit in the interest of justice, equity and good
conscience.