TEAM CODE-05

GIL INTRA MOOT COURT COMPETITION, 2020

IN THE HON’BLE DISTRICT CONSUMER COURT OF PANIPAT

IN THE MATTER OF

Mr. Chandler .…………...Plaintiff

Vs

Dr. Joey & Ors. …………Defendant

Written Submission on the behalf of Plaintiff

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………………...I

INDEX OF AUTHORITIES……………………………………………………………….....III

STATEMENT OF JURISDICTION……………………………………………………….…..V

STATEMENT OF FACTS………………………………………………………………….....VI

STATEMENT OF ISSUES……………………………………………………...…………....VII

SUMMARY OF ARGUMENTS………...………………………………..............................VIII

ARGUMENTS ADVANCED……………………………………………………………………1

1. WHETHER THE SUIT FILED UNDER CONSUMER PROTECTION ACT IS

MAINTAINABLE? ................................................................................................................1

2. WHETHER THERE IS ANY MEDICAL NEGLIGENCE CONSTITUTING

DEFICIENCY IN SERVICE ON THE PART OF THE DEFENDANT UNDER THE
CONSUMER PROTECTION ACT, 1986? ..........................................................................3

2.1 WHETHER THE MEDICAL PROFESSION UNDER CONSUMER PROTECTION

ACT, 1986? ..........................................................................................................................6

2.2 WHETHER THERE IS ANY VIOLATION OF RIGHT TO INFORMED

CONSENT OF THE PATIENT? ......................................................................................7

3. WHETHER THE NEGLIGENCE UNDER TORT? IF NEGLIGENT, WILL THE

PRINCIPLE OF VICARIOUS LIABILITY BE ATTRACTED? .....................................9

3.1 WHETHER THE Dr. JOEY & MONICA IS LIABLE FOR ATTRACTED THE
VICARIOUS LIABILITY OF HOSPITALS? ...............................................................11
PRAYER……………………………………………………………………………….………...X
 TABLE OF ABBREVIATIONS

& And

AIR All India Reporter

Anr. Another

Ors. Others

Hon’ble Honourable

ACJ Administrative Civil Judge

UP Uttar Pradesh

Ltd. Limited

i.e. That is

No. Number

SC Supreme Court

Dr. Doctor

Co. Company

NYHA New York Heart Association

CABG Corona Artery Bypass Surgery

Mohd. Mohammad

CPA Consumer Protection Act

SCR Supreme Court Weekly Reports

SCC Supreme Court Cases

CPJ Consumer Protection Judgements

MEMORANDUM ON THE BEHALF OF PLAINTIFF

I
NC National Commission

HC High Court

MEMORANDUM ON THE BEHALF OF PLAINTIFF

II
 INDEX OF AUTHORITIES

A. Table of Cases

1. A.S Mittal v. State of UP…………………………………………………………………….8

2. Aparnadutta v. Apollo Hospital Enterprises Ltd………………………………………11,13

3. Blyth v. Birmingham Waterworks Co……………………………………………………...11

4. Dr. Sathy M Pillai & Anr. v. V.P.Shantha & Ors…………………………………………8

5. Martin F. D’Souza v. Mohd. Ishfaq…………….……………………………………………1

6. Indian Medical Association v. V.P.Shantha & Ors……………………………………….1,6

7. Jacob Mathew v. State of Punjab.……………………………………………………………6

8. Laxman Balakrishna Joshi v. Trimbak Babu Godbole …………………………………..4

9. M.Chinnaiyan v. Sri Gokulam Hospital & Anr. ……………………………………………7

10. Rajmal v. State of Rajasthan……...……………………………………………………….14

11. Smt. Rekha Gupta v. Bombay Hospital Trust & Anr……………………………………13

12. Vasantha P. Nair v. Smt. V.P.Nair……………………………………………………….2,6

B. Journals Reffered

1. All India Reporter

MEMORANDUM ON THE BEHALF OF PLAINTIFF

III
2. Supreme Court Cases

3. Supreme Court Weekly Reports

4. Consumer Protection Judgements

C. Statutes Reffered

1. The Consumer Protection Act, 1986

MEMORANDUM ON THE BEHALF OF PLAINTIFF

IV
 STATEMENT OF JURISDICTION

It is humbly submitted that the plaintiff has approached the Hon’ble Court invoking its

jurisdiction under the Section 111 of Consumer Protection Act, 1986.

The plaintiff has insisted a civil suit for medical negligence where they plead for recovering the

loss amount before the Hon’ble Court.

1
Jurisdiction of the District Forum

(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints
where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of
the complaint, actually and voluntarily resides or carries on business, or has a branch office or personally works for
gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually
and voluntarily resides, or carries on business 4[or has a branch office], or personally works for gain, provided that
in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry
on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

MEMORANDUM ON THE BEHALF OF PLAINTIFF

V
 STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon’ble Court, the facts of the present case are

summarised as follows:

1. Dr. Joey is a heart specialist and a well established surgeon in Geeta Hospital, Panipat. Mr.

Chandler was his regular patient.

2. He was diagnosed as a NYHA( New York Heart Association) Class IV patient. He suffered

from breathlessness, chest pain and had been previously diagnosed with diabetes, hypertension.

3. Dr. Joey recommended him to undergo CABG (Cornary Artery Byypass Graft) surgery. Dr.

Joey agreed to conduct the surgery at temporary private clinic.

4. He hired a nurse, Monica, for assistance. After the surgery, he was wheeled out into post

operational care at his own residence under supervision of Monica guided by Dr. Joey.

5. During recovery condition, Chandler’s position deteriorated. Monica could not handle the

situation and his health worsened. She tried calling Dr. Joey but he didn’t answered the call.

6. Chandler developed blisters all over his body which eventually resulted in being gangrenous,

due to his past diabetic history about which the Doctor is well awared. This resulted in

amputation of his certain fingers and toes.

7. On a later examination, it was found that the condition of Chandler deteriorated because of a

sudden drop in his body temperature which due to his past diabetic record had exaggerated to

this extent.

8. Now, Chandler has brought an action against Dr. Joey and Monica for Negligence, breach of

duty and claiming damages for the loss of livelihood.

MEMORANDUM ON THE BEHALF OF PLAINTIFF
VI
 STATEMENT OF ISSUES

1. WHETHER THE SUIT FILED UNDER CONSUMER PROTECTION ACT IS

MAINTAINABLE?

2. WHETHER THERE IS ANY MEDICAL NEGLIGENCE CONSTITUTING

DEFICIENCY IN SERVICE ON THE PART OF THE DEFENDANT UNDER THE
CONSUMER PROTECTION ACT, 1986?

2.1 WHETHER THE MEDICAL PROFESSION UNDER CONSUMER PROTECTION

ACT, 1986?

2.2 WHETHER THERE IS ANY VIOLATION OF RIGHT TO INFORMED

CONSENT OF THE PATIENT?

3. WHETHER THE NEGLIGENCE UNDER TORT? IF NEGLIGENT, WILL THE

PRINCIPLE OF VICARIOUS LIABILITY BE ATTRACTED?

3.1 WHETHER THE Dr. JOEY & MONICA IS LIABLE FOR ATTRACTED THE
VICARIOUS LIABILITY OF HOSPITALS?

MEMORANDUM ON THE BEHALF OF PLAINTIFF

VII
 SUMMARY OF ARGUMENTS

1. WHETHER THE SUIT FILED UNDER CONSUMER PROTECTION ACT IS

MAINTAINABLE?

For proving that the suit filed under the Consumer Protection Act,1986 is maintainable or not it

is to be proved that whether the Hon’ble court has jurisdiction over it. Consumerism is now

firmly established in the medical practice and the notion that blame may be attributed and

compensated has a high priority. A consumer has the option to approach the Consumer Forums

to seek speedy redressal of his grievances. In the instant matter, the plaintiff has jurisdiction to

file a suit in district consumer courts under Section 11 of Consumer Protection Act, 1986.

According to the provision of the act as like as “deficiency, service and consumer of services”

the suit is maintainable.

2. WHETHER THERE IS ANY MEDICAL NEGLIGENCE CONSTITUTING

DEFICIENCY IN SERVICE ON THE PART OF THE DEFENDANT UNDER THE

CONSUMER PROTECTION ACT, 1986 ?

For proving medical negligence constituting deficiency in service on the part of the defendant

under the Consumer Protection Act, 1986 it is to be proved that the plaintiff is a consumer and

availed medical services and due to deficiency in this services, he suffered loss. In the instant

matter, it is clear that the plaintiff had availed medical services and due to deficiency of services,

he suffered from amputation of his certain fingers and toes. Thus, the defendant is liable for

MEMORANDUM ON THE BEHALF OF PLAINTIFF

VIII
medical negligence constituting deficiency in service on the part of defendant under Section 2

(1) (o) of Consumer Protection Act, 1986.

3. WHETHER THE NEGLIGENCE UNDER TORT? IF NEGLIGENT, WILL THE

PRINCIPLE OF VICARIOUS LIABILITY BE ATTRACTED?

For proving medical negligence under tort it is to be proved that there exists a duty and there was

breach of duty causing damages. In the instant matter, there exists a duty of doctor over his

patient and due to breach of that duty the plaintiff suffered from amputation of his certain fingers

and toes. Principle of vicarious liability will be attracted because there is relationship of master

and servant between Dr. Joey and Monica and due to lack of reasonable care by Monica, Dr.

Joey will be held vicariously liable under Law of tort.

MEMORANDUM ON THE BEHALF OF PLAINTIFF

IX
 ARGUENTS ADVANCED

1. WHETHER THE SUIT FILED UNDER CONSUMER PROTECTION ACT IS

MAINTAINABLE?

It is humbly submitted before this Hon’ble Court that, the suit filed by the Plaintiff (Chandler) is

maintainable, as the matter involves in medical negligence litigations. Professional negligence or

medical negligence may be defined as want of reasonable degree of care or skill or willful

negligence on the part of the medical practitioner in the treatment of a patient with whom a

relationship of professional attendant is established, so as to lead to bodily injury or to loss of

life. Consumerism is now firmly established in the medical practice and the notion that blame

may be attributed and compensated has a high priority. A consumer has the option to approach

the Consumer Forums to seek speedy redressal of his grievances.

The recent judgment pronounced in Martin F. D'Souza v. Mohd. Ishfaq 2, by the Hon'ble

Supreme Court of India quite explicitly addresses the concerns of medical professionals

regarding the adjudicatory process that is to be adopted by Courts and Forums in cases of alleged

medical negligence filed against Doctors. In the instant matter Dr. Joey and Monica is liable for

all consequence of breach of duty and reasonable care.

The Supreme Court in Indian Medical Association v. V.P. Shantha&Ors.3 held that Service

rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment,

2
(2009) 3 SCC 1
3
(1995) 6 SCC 651
MEMORANDUM ON THE BEHALF OF PLAINTIFF
1
both medicinal and surgical, would fall within the ambit of "service" as defined in section 2(1)(o)

of the Act. In the instant matter ‘service’ falls under the Consumer Protection Act.

In one of the earliest significant ruling in Vasantha P. Nair v. Smt. V.P. Nair4, the National

Commission upholding the decision of Kerala State Commission had held that a patient is a

“consumer” and the medical assistance was a “service” and, therefore, in the event of any

deficiency in the performance of medical service the consumer courts can have the jurisdiction.

 Duties Owed By Medical Practioner: In general, a professional man owes to its client a

duty in tort as well as in contract to exercise reasonable care in giving advice or performing

services. Medical practitioners from all fields of medicine such as Allopathic, Homeopathy,

Cardiology, Naturopathy can be liable under the Consumer Protection Act.

 Existence of legal duty: Whenever a person approaches another trusting him to possess

certain skill, or special knowledge on a given problem the second party is under an implied

legal duty to exercise due diligence as is expected to act at least in such a manner as is

expected in the ordinary course from his contemporaries. So it is not that the legal duty can

only be contractual and not otherwise. Failure on the part of such a person to do something

which was incumbent so, that which would be just and reasonable tantamount to negligence.

Every time a patient visits a doctor for his ailments he does not enter into any written

contract but there is a contract by implication and any lack of proper care can make the erring

doctor liable for breach of professional duty.

 Breach of legal duty: there is a certainly a breach of legal duty if the person exercising the

skill does something which an ordinary man would not have done or fails to do that which an

ordinary prudent man would have done in a similar situation. The standards are not supposed

4
(1991) CPJ 685 (NC)

MEMORANDUM ON THE BEHALF OF PLAINTIFF

2
 to be of very high degree or otherwise, but just the relative kind, that is expected from man in

the ordinary course of treatment.

 Damages caused by the breach: The wrong, the injury occasioned by such negligence is

liable to be compensated. In terms of money and the courts apply the well settled principles

for determination of the exact liquidated amount. While awarding compensation, the

consumer forum has to take into account all relevant factors and assess compensation on the

basis of accepted legal principles on moderation. It is for the consumer forum to decide

whether the compensation awarded is reasonable, fair and proper according to the facts and

circumstances of the case.

In the instant matter, the plaintiff has jurisdiction to file a suit in district consumer courts under

Section 115 of Consumer Protection Act, 1986. According to the provision of the act as like as

“deficiency, service and consumer of services” the suit is maintainable.

2. WHETHER THERE IS ANY MEDICAL NEGLIGENCE CONSTITUTING

DEFICIENCY IN SERVICE ON THE PART OF THE DEFENDANT UNDER THE

CONSUMER PROTECTION ACT,1986 ?

It is humbly submitted before the hon'ble court that the doctor owes certain duties to the patients

who consults him for illness. A deficiency in this duty results in negligence. Any task which is

undertaken to be performed with a special set of skills would generally be admitted or

undertaken to be performed only if the person possess the requisite skill for performing that task.

5
Jurisdiction of the district forum
MEMORANDUM ON THE BEHALF OF PLAINTIFF
3
In LaxmanBalakrishna Joshi v. TrimbakBabuGodbole6, the apex court has stated that, “a

person (doctor) who holds himself out ready to give medical advice and treatment impliedly

undertakes that:

 he is possessed of skill and knowledge for that purpose;

 he owes a duty of care in deciding whether to undertake the case;

 a duty of care in deciding what treatment to give; or

 a duty of care in the administration of that treatment. Further a breach of any of these

duties would give a right of action for negligence to the patient.

“Consumer of Services” under section 2(1)(d)7 defines consumer in the following words:- One

who hires or avails any service or services for a consideration which has been paid or promised

or partly paid and partly promised or under any system of deferred payment. It includes any

beneficiary of such service other than the one who actually hires or avails of the service for

consideration and such services are availed with approval of such person.”

“Service” under section 2 (1)(o) 8 which is as under: “Service” means service of any description

which is made available to potential users and includes the provision of facilities in connection

with banking, financing, transport, processing, supply of electrical or other energy, board or

lodging or both, entertainment, amusement or the purveying a news or other information, but

does not include the rendering of any service free of charge or under a contract of personal

service.”
6
1969 AIR 128 , 1969 SCR (1) 206
7
Consumer Protection Act,1986
8
Consumer Protection Act,1986

MEMORANDUM ON THE BEHALF OF PLAINTIFF

4
Since deficiency in service gives rise to a right to the consumer to bring an action against the

service provider, it is important to understand the meaning of the term “deficiency” which has

been defined under section 2(1)(g) to the following effect: “Deficiency” means any fault,

imperfection, shortcoming or inadequacy in the quality, nature and manner of performance

which is required to be maintained by or under any law for the time being in force or has

undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any

service.” The above definition of deficiency in service includes fault, imperfection, shortcoming

or inadequacy in the quality, nature and manner of performance of service. Any or all of the

above situations would entitle a consumer to claim relief against the service provider. However,

from the above definitions it is clear that services availed free of charge do not come under the

purview of this Act.

The fundamental principle of the medical profession is ‘primium non nocere’

(first no harm to the patient). This profession is considered most noble, of all arts, because it

deals with human life. It bestows upon a doctor the responsibility of due care. It is implicit that

anyone who enters medical undertakes to profess it with due care and skill. Medical negligence

is simply the failure to exercise this due care.

Halsbury’s Laws of England defines medical negligence as under:

 Negligence: Duties owed to patient. A person who holds himself out as ready to give medical

advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the

purpose. Such a person, whether he is a registered medical practitioner or not, who is

consulted by a patient, owes him certain duties, namely, 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 his

MEMORANDUM ON THE BEHALF OF PLAINTIFF

5
 administration of that treatment. A breach of any of these duties will support an action for

negligence by the patient.”

In case Jacob Mathew v. State of Punjab 9, it was held that a professional may be held liable

for negligence on one of two findings: either he was not possessed of the requisite skill which

he professed to have possessed, or, he did not exercise, with reasonable competence in the

given case, the skill which he did possess.

2.1 Whether Medical Profession under Consumer Protection Act?

It is most humbly submitted before this Hon’ble Court that the Medical Profession fall under the

Consumer Protection Act, this statement was supported in one of the earliest significant ruling in

Vasantha P. Nair v. Smt. V.P. Nair(supra), the National Commission upholding the decision

of Kerala State Commission had held that „a patient is a “consumer” and the medical assistance

was a “service” and, therefore, in the event of any deficiency in the performance of medical

service the consumer courts can have the jurisdiction. It was further observed that the medical

officer’s service was not a personal service so as to constitute an exception to the application of

the Consumer Protection Act.

In. Indian Medical Association v. V.P. Shantha and Ors(supra)., the apex court has put an

end to this controversy and has held that patients aggrieved by any deficiency in treatment, from

both private clinics and Government hospitals, are entitled to seek damages under the Consumer

protection Act, 1986. A few important principles laid down in this case include: Service rendered

to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both

9
(2005) 6 SCC 1
MEMORANDUM ON THE BEHALF OF PLAINTIFF
6
medicinal and surgical, would fall within the ambit of “service” as defined in section 2(1) (o) of

the C.P. Act.

The fact that medical practitioners belong to medical profession and are subject to disciplinary

control of the Medical Council of India and, or the State Medical Councils would not exclude the

service rendered by them from the ambit of C.P. Act.

2.2 IS THERE ANY VIOLATION OF RIGHT TO INFORMED CONSENT OF THE

PATIENT?

The doctrine of informed consent has developed in law as the primary means of protecting a

patient’s right to control his or her medical treatment. Under this doctrine, no medical procedure

may be undertaken without patient’s consent obtained after the patient has been provided with

sufficient information to evaluate the risks and benefits of the proposed treatment and other

available options. The doctrine presupposes the patient’s capacity to make a subjective treatment

decision based on his/her understanding of the necessary medical facts provided by the doctor

and on his/her assessment of own personal circumstances.

In M. Chinnaiyan v. Sri Gokulam Hospital &Anr. 10, the complainant approached to the

defendant hospital with abdominal pain and was advised to undergo hysterectomy for which the

consent was obtained from the complainant. However, the complainant suffered from bleeding of

uterus as a result two units of blood was transfused after the operation. The blood units, so

transfused, were not tested for contamination. The patient suffered with HIV-AIDS after three

and a half year of the transfusion and died. The hospital was held liable. It was noted that the

10
III (2007) CPJ 333 NC
MEMORANDUM ON THE BEHALF OF PLAINTIFF
7
consent of the patient was required for transfusion of blood. It was clear from the records that the

complainant had given consent only for hysterectomy operation and not for transfusion of blood.

One of the most forward-looking decision of the National Commission in Dr. Sathy M Pillai &

Anr. v. S. Sharma & Anr. 11, has further strengthened the necessity of informed consent. It was

held that, where informed consent is taken on the printed form without any specific mention

about the name of the surgery, or signatures are taken from patient/relative in mechanical

fashion, much in advance of the date scheduled for surgery, such forms cannot be considered as

informed consent.

In the instant matter there has no consent in printed form even Dr. Joey was known well

Chandler because he was his regular patient at the hospital and even he also knew about his

diabetes still he did his surgery.

In A.S. Mittal v. State of UP12, the apex court coming heavily on the erring doctors held that,

“the law recognizes the dangers which are inherent in surgical operations and that will occur on

occasions despite the exercise of reasonable skill and care but a mistake by a medical practitioner

which no reasonably competent and a careful practitioner would have committed is a negligent

one.” The compensation was awarded.

In the instant matter, There is negligence on the part of Dr. Joey because some basics rules are to

be followed after the surgery by the Doctor but Dr. Joey did not followed these basics ,First one is

that the patient must be admitted in a well equipped intensive care unit (ICU)whereas Dr Joey had

operated him in his own private clinic..Second, the patient must stay in the ICU for a few days

before being moved to a hospital room after surgery but Chandler was wheeled out into post
11
IV (2007) CPJ 131 (NC)
12
1989 AIR 1570, 1989 SCR (3) 241
MEMORANDUM ON THE BEHALF OF PLAINTIFF
8
operational care at his own residence under supervision of Monica guided by Dr. Joey. and lastly,

the patient should be hooked up to machines that monitor heart rate and blood pressure continuously

but in this case no such measures are being taken so there is breach of duty and lack of reasonable

care on thepart of Dr. Joey and it is most humbly submitted that the learned counsel request on

behalf of Plaintiff (Chandler) to recover the claim damages.

3. WHETHER THE NEGLIGENCE UNDER TORT? IF NEGLIGENT, WILL THE

PRINCIPLE OF VICARIOUS LIABILITY BE ATTRACTED?

It is submitted before this hon'ble court that the Dr. Joey is liable under tort for the negligence.

Negligence implies absence of intention to cause the harm complained of. It means careless or

unreasonable conduct. But merely unreasonable conduct without damage is not actionable

though it may be a punishable offence. Such conduct when followed can cause harm to another

gives rise to liability for negligence. It may be pointed out that negligence may mean a mental

element in tortuous liability or it may mean an independent tort.

Dr. Winfield has defined the tort of negligence as: “Negligence as a tort is the breach of a legal

duty to take care which results in damage, undesired by the defendant, to the plaintiff.”

Above definitions clearly bring in three important essential elements of the tort of negligence:

 that a duty of care is owed to the plaintiff;

 there has been a breach of the duty; and

MEMORANDUM ON THE BEHALF OF PLAINTIFF

9
  damage has resulted from that breach or necessarily has causal linkage to the breach

of duty besides infusing an element of the concept of reasonable man’s conduct in

determining the duty of care.

A person who holds himself out ready to give medical advice and treatment impliedly undertakes

that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a

patient owes him certain duties:

 A duty of care in deciding whether to undertake this case.

 A duty of care in deciding what treatment to give.

 A duty of care in the administrating that treatment properly.

A breach of any of these duties gives a right of action for negligence to the patient.

 The Existence of the Duty of Care: It would be absurd to hold any person liable for his

every careless act or even for every careless act that causes damage. He may only be liable in

negligence if he is under a legal duty to take care. Legal duty is different from the moral,

religious or social duty and therefore, the plaintiff (consumer) has to establish that the

wrongdoer owed to him a specific legal duty to take care of which he has made a breach. A

person is only required to meet the standard of care where he has an obligation or a duty to

be careful. Thus it may be said that the “duty” is “the relation between individuals who

imposes upon one a legal obligation for the benefit of other”. Put in other terms the duty is

“an obligation, recognized by law, to avoid conduct fraught with unreasonable risk of danger

to others"

MEMORANDUM ON THE BEHALF OF PLAINTIFF

10
  Breach of Duty: The tortfeasor liable in negligence is that the defendant must not only

owe a duty of care to the plaintiff, but also he must be in breach of it. The test for deciding

whether there has been a breach of duty was laid down in oft-cited dictum of Alderson B,

in case Blyth v. Birmingham Waterworks Co.13, wherein it was held that “negligence is

breach of duty caused by 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 prudent and reasonable man would not do.”

Res ipsa loquitur:

In the common law of torts, res ipsa loquitur(Latin word meaning "the thing speaks for itself")

is a doctrine that infers negligence from the very nature of an accident or injury in the absence of

direct evidence on how any defendant behaved. Although modern formulations differ by

jurisdiction, common law originally stated that the accident must satisfy the

necessary elements of negligence: duty, breach of duty, causation, and injury. In res ipsa

loquitur, the elements of duty of care, breach, and causation are inferred from an injury that

does not ordinarily occur without negligence.

3.1 Whether the Dr. Joey and Monica is liable for attracting the vicarious liability of

hospitals?

The principle of vicarious liability is based on a Latin maxim “qui facit per alium facit per se”

which describes that the one who acts through another act in his/her own interest. The patient

only requires diligent and proper care, if any of the staff of the hospital is negligent in the

performance of their prescribed work, the hospital will be held liable on the negligent conduct of

13
(1856) 11 Ex Ch 781
MEMORANDUM ON THE BEHALF OF PLAINTIFF
11
even borrowed doctors for specific performance of certain operations. This principle was

established in the case of AparnaDutta v Apollo Hospital Enterprises Ltd.14

Vicarious liability, sometimes referred to as “imputed liability” is a legal concept that assigns

liability to an individual who did not actually cause the harm, but who has a specific superior

legal relationship to the person who did cause the harm. Vicarious liability most commonly

comes into play when an employee has acted in a negligent manner for which the employer will

be held responsible. To explore this concept, consider the following vicarious liability definition.

Vicarious liability also known by the Latin term “respondeat superior” is the holding of a

person or entity responsible for damages or harm caused by someone else. Most commonly

thought of in employee-employer relationships, it applies in other situations in which a person or

entity holds a superior position to an agent. For instance, a hospital is responsible for its doctors’

actions.

Vicarious Liability in Medical Care:

 In a medical setting, a hospital or doctor can be held vicariously liable for a claim based on

the acts of one of its employees. This includes the actions of its physicians, nurses, laboratory

personnel, imaging and other technicians, CNAs, administrative employees, and other staff

members.

 Due to the possibility of vicarious liability, hospitals, clinics, and doctors are responsible for

ensuring all of their employees have the necessary qualifications and credentials needed to

perform their jobs. If a physician or other healthcare provider is considered an independent

contractor of a hospital, vicarious liability may not apply, though laws on this vary by state.

14
(2002) ACJ 954 (Mad HC)
MEMORANDUM ON THE BEHALF OF PLAINTIFF
12
 Nurses owe patients an independent professional duty. Obviously, a nurse is not directly in

charge of a patient’s medical care, but there are many tasks that nurse perform that are

related to the patient’s care. Some of the most important of a nurse’s tasks include

monitoring and feeding patients and administering medications, among other things. Nurses

can make mistakes amounting to negligence in any or all of those tasks.

In the instant matter, Dr. Joey hired a nurse (Monica), for assistance. Monica took the necessary

care, but she couldn’t handle the situation and his health worsened. Dr. Joey and Monica is liable

for vicarious liability because lack of reasonable care.

In a case Aparna Dutta v. Apollo Hospitals Enterprises Ltd.(supra), the court held that the

hospital cannot take a defense that doctors are not employed as servant by them. Whatever the

conditions under which the hospital employ a doctor is between them. The hospital is liable to

the third party.The hospital cannot escape the liability by claiming that there is no master-servant

relationship.

It was also held in the case Smt. Rekha Gupta v. Bombay Hospital Trust & Another 15, that

hospital is liable for the misconduct on the part of consultant doctor. The hospital cannot escape

from the liability by stating they only provide supporting staff and infrastructure facilities.

Whatever the outcomes of the case the hospital is not allowed to escape from its liability. The

court ruled that hospital or employer is liable for the acts of doctors like anesthetists and

surgeons who act independently who agreed for the treatment. It is not important whether the

doctors are resident, permanent, visiting, temporary or part time. It is based on the logic that the

act performed by the consultant is deemed to be the service provided by the hospitals.

15
II (2003) CPJ 160 NC
MEMORANDUM ON THE BEHALF OF PLAINTIFF
13
In certain instances, Honorable Courts in India have held the hospitals liable in malpractice suits

on the ground that persons who run hospitals are in law under the same duty as a doctor i.e.,

when they accept a patient for treatment, they must use reasonable care and skill to ease him of

his ailment. The courts observed that the hospitals must do it by the staff that they employ and if

their staffs are negligent in giving treatment, they are just as liable for that negligence as anyone

else who employs others to do his duties for him.

The State Government was held vicariously liable in the "Rajmal v. State of Rajasthan16”,

where the patient died of neurogenic shock following laparoscopic tubal ligation done at a

primary health center. An enquiry committee constituted on the directions of the Rajasthan High

Court found that the doctor was not negligent in conducting the operation, or his competence,

integrity, or efforts were doubted. Lack of adequate resuscitation facilities and trained staff was

held responsible for the death.

Also, if the defendant ‘Vicarious liability’ makes in his occupation in course of which there is

escape of something which causes damage to person, the defendant is liable irrespective of any

question of negligence on the basis of the rule of vicarious liability propounded in AparnaDutta

v. Apollo Hospital Enterprises Ltd(supra).In the instant case, Monica took the necessary care

guided by Dr. Joey, but she couldn’t handle the situation and his health worsened. She tried

calling Dr. Joey but he was busy in the hospital and didn’t answer her call. Chandler developed

blisters all over his body which eventually resulted in being gangrenous, due to his past diabetic

history. This resulted in amputation of his certain fingers and toes. Dr. Joey and Monica are

liable for negligence, breach of duty and claim damages for loss of livelihood.

16
(1996) ACJ 1166
MEMORANDUM ON THE BEHALF OF PLAINTIFF
14
 PRAYER

WHEREFORE, In light of the issues raised, arguments advanced and authorities cited it is most

humbly and respectfully request this Hon’ble Court to adjudge and declare that:

 The decree should be passed in favour of the Plaintiff by holding the defendant liable for

damages caused because of his negligence as a consequence of which the plaintiff has to

suffer from amputation of his certain fingers and toes and mental agony.

 To award suitable compensation for the loss suffered.

Pass any other order, which this Hon’ble Court may deems fit in the light of justice,

equity and good conscience.

For this act of kindness, the counsel for the plaintiff shall duty bound forever pray.

(Counsel for Plaintiff)

MEMORANDUM ON THE BEHALF OF PLAINTIFF

X