BEFORE THE HON’BLE SUPREME COURT OF INDIS

APPEAL UNDER SECTION 23

CONSUMER PROTECTION ACT,1986

IN THE MATTER BETWEEN

MRS.MRINALINI.…………….…………………………………………………….APPELLANT

v.

SIIMS HOSPITAL AND RESEARCH CENTRE AND OTHERS………...…………...…RESPONDENTS

UPON SUBMISSION TO THE HON’BLE BENCH OF

THE SUPREME COURT OF INDIS

MEMORANDUM ON BEHALF OF THE RESPONDENTS

 TABLE OF CONTENTS

TABLE OF CONTENTS...........................................................................................................ii

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

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

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

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

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

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

ARGUMENTS ADVANCED ...................................................................................................x

I. SIIMS HOSPITAL & RESEARCH CENTRE IS NOT VICARIOUSLY LIABLE FOR

THE ACTS OF ITS DOCTORS............................................................................................x

I.1. Dr. Satyendra had not performed any act of medical negligence to be made liable in
the first place......................................................................................................................x

I.2. Dr. Dixit was a visiting professional and hence an independent contractor...............xi

I.3. The acts of Dr. Kucchupillai in no manner amount to medical negligence, hence
SIIMS is not vicariously liable. .......................................................................................xii

II. THERE WAS NO DEFICIENCY IN SERVICES ON THE PART OF SIIMS AND ITS
DOCTORS AMOUNTING TO MEDICAL NEGLIGENCE. .......................................... xiii

II.1. There was no breach in the duty of care................................................................. xiii

II.2. The appellant failed to fulfil the duties of a patient. ................................................xv

III. 3. Standard of care was attained................................................................................xvi

III. THE CONSENT TAKEN WAS VALID................................................................... xviii

PRAYER..................................................................................................................................xx

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 LIST OF ABBREVIATIONS

AIR…………………………………………….…………………………...All India Reporter

COPRA…………………………………..…………………..Consumer Protection Act, 1986

SIIMS………………………………………………….…SIIMS Hospital & Research Centre

SC…………………………………………………………………………….Supreme Court

SCC……………………………………………………………………..Supreme Court Cases

v. and vs. ……………………………………………………………………………..…versus

Sec. ……..……………………………………………………………………………..Section

p. …………………………………………………………………………………………Page

CUP………………………………………………………..Carcinoma of Unknown Primary

Edn……………………………………………………………………………………Edition

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 INDEX OF AUTHORITIES

CASES:

1. Indian Medical Association vs. Santha, AIR 1996 SC 550: (1995) 6 SCC 651 2.
2. Cassidy v. Ministry of Health, [1951] 2 KB 343.
3. Donoghue v. Stevenson, [1932] A.C. 562.
4. Hillyer v. St. Bartholomew’s Hospital, [1909] 2 K.B. 820.
5. Hatcher v. Black, (1954) The Times, 2 July 1954.
6. Jacob Mathew v. State of Punjab, A.I.R. 2005 S.C. 3180.
7. Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, 586.
8. Hucks v. Cole, [1968] 118 New L.J. 469.
9. Kurban Hussein Mohomedalli Rangawalla v. State of Maharashtra, (1965) 2 S.C.R.
622.
10. Emperor v. Omkar Rampratap, 4 Bom. L.R. 679.
11. Schoelndorff v. New York Hospital, 211 NY 215: 105 NE 92 (1914).

BOOKS:

1. Dhirajlal&Ratanlal, The Law of Torts.26th edition 2012, LexisNexis

ButterworthsWadhwa.
2. Justice K Kannan, A textbook of Medical Jurisprudence and Toxicology. 25th edition
2016, LexisNexis.
3. Dr. R. K. Bangia, The Law of Torts. 24th edition 2017.

LEGISLATIONS:

1. Consumer Protection Act, 1986.

2. Indian Penal Code, 1860.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court has appellate jurisdiction in this matter under Section 23 of
the
Consumer Protection Act, 1986.

Section 23 states that 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.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 STATEMENT OF FACTS

1. Indis is a democratic country which follows a common law system of legal

jurisdiction. Mr. Hariharan was a resident of Indis and the CEO of WTC
Ltd., a Government Undertaking set up by the Act of Parliament. Due to his
busy work schedule and lack of exercise, he became obese and developed high
blood pressure.

2. On observing that his body was swelling, he consulted a doctor at WTC Ltd. Clinic,
who in turn referred him to Satluj Govt. Hospital on 12 th February 2012. However,
no diagnosis could be done then, hence he was referred to Dr. Satyendra (M.D.), the
CEO of SIIMS Hospital & Research Centre.

3. SIIMS Hospital &Research Centre was a highly specialized, not for Profit Company
with the objective of carrying out research and treatment in Cancer. In order to meet
Dr. Satyendra, Mr. Hariharan visited SIIMS on 18 th July 2012, 5 months after being
advised to do so. On Dr. Satyendra’s advice, he was admitted to SIIMS the next day.
After an Ultrasound and a C.T. scan of the abdomen was done, a smooth surface
mass, measuring 4.5 x 5 cm was found in the left adrenal, while the right adrenal was
normal. Surgery became imperative for removing the left adrenal. Hariharan
and his wife Mrinalini were informed by Dr. Satyendra, that it was well
encapsulated benign tumour of the left adrenal of less than 5 cm in size which could
be taken out by an operation. It was decided to carry out the surgical operation
for the removal of abdominal tumour.

4. On 27th July 2012, the doctor obtained consent from the appellants for the operation
of removal of abdominal tumour and the next day it was operated by Dr. Dixit, and
Dr. Satyendra. Dr. Dixit who visited SIIMS on a case to case basis was called,
keeping in mind his expertise and the requirements of this case. After the
operation, Mr. Hariharan was kept in hospital for four days and discharged. On test,
the tumour was found to be malignant.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
5. On experiencing some pain after a month, Mr. Hariharan visited Dr. Satyendra and
was given painkillers for 15 days. He was also asked to come for a visit after 3
months. However, his condition started deteriorating and he was shifted back to
SIIMS on 10th November, 2012 after vomiting at home. Mr. Hariharan died in the
hospital on 15th November, 2012.

6. The post-mortem report said the deceased died because of post-operative infections.
It was found out that the tumour was metastatic in nature and was in fact a
Carcinoma of Unknown Primary origin. Further, it discovered that Mr. Hariharan had
been shown to JK Hospital in Jabalpur on 10 th October, 2012, during his official
visit, and was diagnosed with having post-operative complications. The deceased
was discharged from there two days later and advised to get further treatment at
SIIMS.

7. Owing to his work and continuous travel, Mr. Hariharan was unable to visit SIIMS at
that particular time. However, he kept taking his pills, and then visited SIIMS later
on the 2nd of November, 2012. Dr. Satyendra was on leave and would join the
hospital only after 3 days, and therefore, the patient consulted Dr. Kuchupillai
(M.D.), a senior doctor and a director at SIIMS. Dr. Kuchupillai wrote on a slip, `to
be discussed in the Endo-Surgical Conference on 18th November, 2012’.

8. After the death of her husband, Mrs. Mrinalini, filed a complaint before the National
Commission claiming compensation attributing deficiency in services and medical
negligence in the treatment of the deceased. The grievance of the appellants is that
they were not informed about the post-operative complications however,
all operational difficulties and probable side-effects are taken care of through the
consent form.

9. The National Commission did not find any merit in the complaint of the appellants.
Aggrieved by this judgement, the appellants filed the present appeal before this
court.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 STATEMENT OF ISSUES

ISSUE I:

Whether SIIMS Hospital & Research Centre is vicariously liable for acts of its
doctors?

ISSUE II:

Whether there was a deficiency in services on the part of SIIMS and its doctors
amounting to medical negligence?

ISSUE III:

Whether the consent taken was valid?

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 SUMMARY OF ARGUMENTS

ISSUE I

Whether SIIMS Hospital & Research Centre is vicariously liable for acts of its doctors?

It is humbly submitted before the Hon’ble Court that the respondent, SIIMS Hospital
& Research Centre is not vicariously liable for the acts of its employs. Since, no act of
medical negligence has been performed in the first place.

ISSUE II

Whether there was a deficiency in services on the part of SIIMS and its doctors
amounting to medical negligence?

It is humbly submitted before the Hon’ble Court, that no medical negligence has occurred on
the part of SIIMS, because there was no breach in the duty of care by SIIMS.

ISSUE III

Whether the consent taken was valid?

It is humbly submitted before the Hon’ble Court, that the consent taken was completely
valid, because the consent was free, not obtained under compulsion and was not obtained by
fraud
either. The consent form also included all operational difficulties and probable side effects.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 ARGUMENTS ADVANCED

I. SIIMS HOSPITAL & RESEARCH CENTRE IS NOT VICARIOUSLY LIABLE

FOR THE ACTS OF ITS DOCTORS.

SIIMS is not vicariously liable for the acts of its employees since, (I.1.) Dr. Satyendra had
not performed any act of medical negligence to be made liable in the first place, (I.2.) Dr.
Dixit was a visiting professional and hence an independent contractor, (I.3.) The acts of Dr.
Kucchupillai in no manner amount to medical negligence, hence SIIMS is not vicariously
liable.

I.1. Dr. Satyendra had not performed any act of medical negligence to be made liable
in the first place.
In the case of Indian Medical Association vs. Santha1, the Apex Court has decided that the
skill of a medical practitioner differs from doctor to doctor and it is incumbent upon
the Complainant to prove that a doctor was negligent in the line of treatment that resulted in
the life of the patient. Therefore, a Judge can find a doctor guilty only when it is proved that
he has fallen short of the standard of reasonable medical care. It has been held that it is for
the Complainant to prove the negligence or deficiency in service by adducing expert
evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere
allegation of negligence will be of no help to the Complainant

Here, the death of Mr. Hariharan was because of the post-operative complications. These
complications were not because of any negligence during the operation process, but due to
an inaccurate diagnosis. Also, the inaccurate diagnosis was only found after the operation, to
which Dr. Satyendra had given some painkillers so that it could be treated later. Hence, Dr.
Satyendra has not fallen short of the standard of reasonable care. Hence, in this case it can
be concluded that an inaccurate diagnosis does not testimony to negligence.

In Cassidy v. Ministry of Health2, L J Denning stated that the liability of hospital authorities
for the negligence of a doctor on the permanent staff of the hospital does not depend on

1
AIR 1996 SC 550: (1995) 6 SCC 651 2.
2
[1951] 2 KB 343.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
whether he is employed under a contract of service or under a contract for service. It
depends upon who employs him; where the patient himself selects and employs the doctor,
the hospital authorities are not liable.

In this case, Satluj Gov. Hospital had referred Mr. Hariharan to consult Dr.
Satyendra at SIIMS. Dr. Satyendra was hence selected by the patient i.e. by Mr. Hariharan
himself, and hence, the hospital authorities cannot be held liable even if there could have
been any medical negligence in this case.

In Donoghue v. Stevenson3, the defendant pleaded the court on the grounds of “Privity of
Contract Fallacy” the effect of which was understood to be that if A undertook
some contractual obligation towards B and the breach of such obligation by A resulted in
damage to C, then C could not sue A, because there was no contractual relation between A
and C.

In this similar fashion, here A is SIIMS, B is Dr. Satyendra and C, Mr. Hariharan. But
because of no contractual relation, even if there was an act of medical negligence, Mr.
Hariharan cannot sue SIIMS.

I.2. Dr. Dixit was a visiting professional and hence an independent contractor.
In Hillyer v. St. Bartholomew’s Hospital4, the hospital authorities were held not to be
vicariously liable for the negligence of the professional staff involving professional care and
skill, because they lacked the power of control over them.

This was proved, according to the principle of Ostensible Agents of Hospitals, in

which principals may not be held liable for the negligent conduct of independent contractors
due to the lack of control in the relationship. Independent contractor relationship is largely
based on the autonomy of their work because they are not influenced by the principal's
control. When a patient is treated by a physician who is an independent contractor, in the
facilities of a hospital, the treatment a patient receives is conceptualized as the result of the
physician's independent medical judgment that a hospital lacks control over. Thus, in theory,
a hospital should not be held liable for the negligent conduct of these physicians who are
practicing in
their facilities.

3
[1932] A.C. 562.
4
[1909] 2 K.B. 820.
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MEMORIAL ON BEHALF OF THE RESPONDENTS
Here, Dr. Dixit was called in SIIMS on case to case basis, by looking at his expertise and
requirement in a particular case, hence he can be referred as an ostensible agent of SIIMS
(independent contractor), because of which SIIMS did not have any control over his
activities. Hence, even any act of Dr. Dixit resulted into medical negligence, SIIMS cannot
be held vicariously liable for the same.

I.3. The acts of Dr. Kucchupillai in no manner amount to medical negligence, hence
SIIMS is not vicariously liable.
Whenever a physician requests another physician to attend his patients during his temporary
absence from his practice, professional courtesy requires the acceptance of such appointment
only when he has the capacity to discharge the additional responsibility along with his/her
other duties. The physician acting under such an appointment should give the utmost
consideration to the interests and reputation of the absent physician and all such
patients should be restored to the care of the latter upon his/her return. The medical
physician occupying the place of a substitute should avoid remarks upon the diagnosis or the
treatment that has been adopted. When a physician has been called for consultation, he
should not take charge of the case. He shall not criticise the referring physician. He/ she
shall discuss the diagnosis treatment plan wit the referring physician.5

In this case, Since Dr. Satyendra was on a leave, Dr. Kucchupillai can be considered as a
substitute physician or a consultant in absence of Dr. Satyendra. Accordingly,
Dr. Kucchupillai (M.D.) was capable to discharge this additional responsibility on behalf of
Dr. Satyendra, since he had qualifications similar to that of Dr. Satyendra. As he was a
substitute physician, he did not leave any remark on the diagnosis of Dr. Satyendra, and did
not take charge of the case. But completed his duty by noting down to discuss Mr.
Hariharan’s case
in the “Endo-Surgical Conference” which was exactly what he was supposed to do.

5
Justice K Kannan, Medical Jurisprudence and Toxicology [85] (Jaising P Modi, 25th edition.,2016).

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MEMORIAL ON BEHALF OF THE RESPONDENTS
II. THERE WAS NO DEFICIENCY IN SERVICES ON THE PART OF SIIMS AND
ITS DOCTORS AMOUNTING TO MEDICAL NEGLIGENCE.

There was no deficiency in services on the part of SIIMS and its doctors amounting to
medical negligence because, (II.1.) There was no breach in the duty of care. (II.2.) The
appellant failed to fulfil the duties of a patient. (III. 3.) Standard of care was fulfilled.

II.1. There was no breach in the duty of care.

Lord Denning in the case of Hatcher v. Black 6 opined that:

“The jury must not find a doctor negligent simply because one of the risks inherent
in an operation actually took place or because in a matter of opinion he made an
error of judgement. They should actually only find him guilty when he had fallen
short of the standard of reasonable medical care.”

In Jacob Mathew v. State of Punjab7, the apex court has explained,

“Any reasonable man entering into a profession which requires a particular level of
learning to be called a professional of that branch, impliedly assures the
person dealing with him that the skill which he professes to possess shall be
exercised with reasonable degree of care and caution. He does not assure his client of
the result. A surgeon cannot and does not guarantee that the result of surgery would
invariably be beneficial, much less to the extent of 100% for the person
operated on. The only assurance with such a professional can give or can be
understood to have given by implication is that he is possessed of the requisite skill
in that branch of profession which he is practising and while undertaking the
performance of the task entrusted to
him h would be exercising his skill with reasonable competence.”

6
(1954) The Times, 2 July 1954.
7
A.I.R. 2005 S.C. 3180.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
In Bolam v. Friern Hospital Management Committee8, the Supreme Court has laid down that
a professional might be held liable for negligence either,

“1. When he was not possessed of the requisite skill which he professed to
have possessed; or
2. When he did not exercise, with reasonable competence in the given case, the skill
which he did possess. Standard to be applied would be that of an ordinary competent
person exercising ordinary skill in that profession.”

In the same case, Mc Nair, J. observed:

“…. A man need not possess the highest expert skill; it is well established law that it
is sufficient if he exercises the ordinary skill of an ordinary competent man
exercising that particular art.”

In Hucks v. Cole9, Lord Denning opined:

“A medical practitioner was not to be held liable simply because things went wrong
from mischance or misadventure or through an error of judgement in choosing one
reasonable course of treatment in preference of another. A medical practitioner,
would be liable only when his conduct fell below that of the standards of a
reasonably competent practitioner in his field.”

In Kurban Hussein Mohomedalli Rangawalla v. State of Maharashtra 10, while dealing with
section 304-A of IPC, the following statement by Sir Lawerence Jenkins in Emperor v.
Omkar Rampratap11 was cited with approval:

“To impose liability, it is necessary that the death should have been the direct result
of a rash and negligent act of the accused, and that act must be the proximate and

8
[1957] 1 W.L.R. 582, 586.
9
[1968] 118 New L.J. 469.
10
(1965) 2 S.C.R. 622.
11
4 Bom. L.R. 679.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 efficient cause without the intervention of another’s negligence. It must be the causa
causans; it is not enough that it may have been the causa sine quo non.”

Taking in account all the above cases it is submitted that, the post-operative complications
were a result of an inaccurate diagnosis, which does not amount to testimony of negligence.
Dr. Satyendra (M.D.), Dr. Dixit and Dr. Kuchupillai (M.D.) were all competent
professionals. The diagnosis done by Dr. Satyendra was the ordinary skill of an ordinary
competent man exercising that particular art. It is clear from the facts that the exact
information was given to the appellants which was found in the C.T. Scan. The nature of the
tumor was found to be malignant on a test conducted only after the operation. To which Dr.
Satyendra fulfilled his duty by giving painkillers since the diagnosis of the actual cause of
the pain couldn’t be done, which is explained further. This clearly shows that he has not
fallen short of his standard of reasonable medical care.

Dr. Dixit had visited SIIMS only for the operation. And there was no negligence during the
operation to directly result in the complications that had occurred, but it was because the
encapsulated benign was in fact metastatic in nature, a carcinoma of Unknown
Primary, which was only understood after the operation which was an error in
judgement by Dr. Satyendra.

According to, Dr. Gauri R. Varadhachary12, “In CUP, the primary tumor may remain
diminutive and thus escape clinical detection or it may disappear after seeding the
metastasis.” This proves that he has in no way fell below the standards of a
reasonably competent practitioner in his field. As, it was a condition which could have
happened even after taking reasonable care. Hence, there has been absolutely no negligence
on the part of Dr. Dixit or Dr. Satyendra.

II.2. The appellant failed to fulfil the duties of a patient.

When a patient employs a medical practitioner for the treatment of his ailment, he
may reasonably be expected to supply his doctor with the complete information concerning
the facts and circumstances of the case, to allow him full opportunity for his own treatment,
to
obey his instructions and to carry out his directions to the very letter as regards his
diet,

12
Varadhachary GR. Carcinoma of Unknown Primary Origin. Gastrointestinal Cancer Research: GCR.
2007;1(6):229-235.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
medicine, mode of life, and to pay him a reasonable fee for his services. Failure on the part
of the patient to do his duty will enable the doctor to terminate the patient-physician
relationship and that would free him from his legal responsibility. 13

In this case, Mr. Hariharan was negligent in informing Dr. Satyendra about his work
schedule and busy life style, hence Dr. Satyendra was unable to know about
these minute circumstances. These details in the end, resulted into the death of Mr.
Hariharan, since Dr. Satyendra was unable to treat him at the right moment. He also did not
follow the directions of Dr. Satyendra, by not coming for consultation on the prescribed
dates and failed to obey his instructions.

Initially, on being advised by Satluj Gov. Hospital to visit SIIMS, Mr. Hariharan delayed the
visit by 5 months. Later, when he was called for a visit 3 months after being given
painkillers post the operation, Mr. Hariharan again missed his visit which resulted into his
deteriorating condition and consequently into his death. Although this visit was not
advised by Dr. Satyendra, but while on his official visit to the JK Hospital in Jabalpur
which was a month prior his condition started deteriorating, he was advised by the doctor
there to get further treatment at SIIMS. Mr. Hariharan was travelling and hence only kept
taking painkillers. He finally visited SIIMS a month later after being advised to do so,
during which he met Dr. Kuchupillai as Dr. Satyendra was on leave at that time. It was
because of these delayed visits that the CUP couldn’t be detected even after having the
slightest possibility. Hence, resulting into the death of Mr. Hariharan.

III. 3. Standard of care was attained.

In Patch v. Board of Governors, United Bristol Hospital14, J Streatfield clarifies the standard
of care expected. It is stated that:

“…the liability of doctors is not unlimited; the standard of care required of them is
not that standard shown by exceptional practitioners. Surgeons, doctors and nurses
are not insurers. They are not guarantors of absolute safety. They are not liable in law

13
Justice K Kannan, Medical Jurisprudence and Toxicology [98] (Jaising P Modi, 25th edition.,2016).
14
[1959] Essentials of Forensic Medicine, 3rd edn, 1973, Pergamon Press, p 643.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 merely because a thing goes wrong…The law requires them to exercise
professionally that skill and knowledge that belongs to the ordinary practitioner.”

Accordingly, in this case, it is submitted that there has been no breach in the standard of care
because SIIMS and its employees have shown skill and knowledge of an ordinary
practitioner, which is required.

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 III. THE CONSENT TAKEN WAS VALID.

In the case of Schoelndorff v. New York Hospital15, Justice Cardozo, in the matter of
informed consent held that:

“Every human being of adult years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an operation without
his patient’s consent commits an assault: for which he is liable in damages.”

Consent may be express or implied. Express consent is an oral or written authority by the
patient to render the proposed treatment. Consent may be implied from the conduct of the
patient in particular case, or from the application of law, to certain fact situations. A patient
who voluntarily submits to treatment under circumstances which would indicate awareness
of the planned treatment implied authorises the treatment, even without express consent.

It is now recognised that the patient has the right to full information in non-professional
terms, concerning his diagnosis, treatment and prognosis. He should also be informed about
the alternative treatments and its possible complications.

Informed consent means the consent of a patient to the performance of the healthcare
services provided by a registered medical practitioner, that prior to the consent having been
given, the medical practitioner has informed the patient of the nature of the proposed
procedure or treatment of those risks and alternative treatment and diagnosis that a
reasonable patient would consider material to the decision whether or not to undergo
treatment or diagnosis.

According to Section 90 of the Indian Penal Code, 1860, consent given under fear, fraud or
misrepresentation of facts or by a person who is ignorant of the implications of his consent,
or who is under 12 years of age, is invalid.

15
211 NY 215: 105 NE 92 (1914).
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MEMORIAL ON BEHALF OF THE RESPONDENTS
No decision should restrain the attending physician from making such subsequent variations
in the treatment if any unexpected change occurs.16 Hence, the duration of the operation of 6
hours to which consent was not given specifically can be justified.

Hariharan and his wife Mrinalini were informed by Dr. Satyendra, that it was well
encapsulated benign tumor of the left adrenal of less than 5 cm in size which could be taken
out by an operation, which was the exactly what the C.T. had found. It was decided to carry
out the surgical operation for the removal of abdominal tumor. And on 27 th July 2012, the
doctor obtained consent from the appellants for the operation of removal of abdominal
tumor and next day it was operated by Dr. Dixit and Dr. Satyendra. The consent was taken
without any fraud, misrepresentation or fear. All operational difficulties and probable side
effects of the surgery were included in the consent form which the appellants had signed.

Accordingly, it is submitted that that the consent given by Mr. Hariharan was informed and
hence valid.

16
Justice K Kannan, Medical Jurisprudence and Toxicology [63] [64] [85] (Jaising P Modi, 25th edition.,2016)

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MEMORIAL ON BEHALF OF THE RESPONDENTS
 PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is
most humbly and respectfully requested that this Hon’ble Court be pleased to:

1. Not hold the respondents, SIIMS Hospital & Research Centre vicariously liable for
the acts of its doctors.
2. Declare that there was no deficiency on services on the part of the doctors amounting
to medical negligence.
3. Declare that the consent taken was valid.

OR

The court may also pass any other or further order(s) as this Hon’ble Court may deem fit,
just and proper in the facts and circumstances of the case, in the light of justice, equity and
good conscience.

Signed/-

..................................

Counsel for the “Respondent”

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