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ICFAI LAW SCHOOL
Internal Moot Court Exam
Before
THE HON’BLE SUPREME COURT OF ZABASTAIN.
CASE FILLED UNDER S.67 OF CPA. AND ART. 136 OF COI
MEMORIAL ON BEHALF OF THE PETITIONER
Ms.Nanakoda.......................................................................Petitioner V/s Health Squad hospital................................................................Respondent
MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE JUDGE OF THE
SUPREME COURT OF JUDICATURE OF ZABASTAIN. MEMORANDUM ON BEHALF OF Petitioner And Filed By The Counsel For The Petitioner. Name: Divya Nimbalkar Enrolment No: Batch:
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Table of Contents
Index of Abbreviations….......................................................III
Index of Authorities...............................................................IV
Cases...............................................................................................................IV Articles............................................................................................................IV Statute...............................................................................................................IV
Statement of Jurisdiction.........................................................V
Statement of Facts..................................................................VI
Issues Presented................................................................VII
Summary of Arguments......................................................VIII
Arguments Advanced............................................................ 10
I. ISSUE 1. WHEATHER THE APPEAL IS MAINTAINANLE BEFORE SUPREME COURT?...... 10 ISSUE 2. WHEATHER THE ADVERTISMENT GIVEN BY THE HOSPITAL AUTHORITIES IS VALID?................................................................................................................................................................. 11 ISSUE 3. WHEATHER THE CONTRACT IS VALID BETWEEN HOSPITAL AUTHORITIE AND THE PATIENT?.................................................................................................................................................. 13 ISSUE 4. WHETHER THERE IS A MEDICAL NEGLIGENCE ON THE PART OF HOSPITAL AUTHORITIES?.................................................................................................................................................. 14
Prayer.................................................................................... 17
IV | P a g e [INDEX OF AUTHORITIES] INDEX OF AUTHORITIES CASES Jacob Mathew v. State of Punjab & Another Carlill V. Carbolic Smoke Ball Co State of Haryana and Ors v. Smt. Santra State of Haryana v. Smt. Santra Prashanth S. Dhananka State Of Punjab & Ors vs Mohinder Singh Chawla Pt. Parmanand Katara vs Union Of India JOURNAL ARTICLES Medical negligence and the law K K S R Murthy Medical Negligence Ysrao Judge Error of Judgment and Vicarious Liability of the Hospitals in case of Medical Negligence in Zabastain Navin Kumar Koodamara STATUE Consumer Protection Act, 2019 Indian Penal Code Indian Contract Act, 1872 Medical Council of Indian Code of Ethics Regulations, 2002 Drugs And Magic Remedies Act, 1954.
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STATEMENT OF JURISDICTION
The Petitioner humbly submits this memorandum for the petition filed before
this Honourable Court. The petition invokes its jurisdiction under Article 136 of
Constitution of Zabastain and section 67 of consumer protection act. It sets forth
the facts and the laws on which the claims are based.
VI | P a g e Supreme Court of Zabastain.
VII | P a g e [ ISSUES PRESENTED]
ISSUES PRESENTED
ISSUE 1. WHEATHER THE APPEAL IS MAINTAINANLE BEFORE SUPREME COURT? ISSUE 2. WHEATHER THE ADVERTISMENT GIVEN BY THE HOSPITAL AUTHORITIES IS VALID? ISSUE 3. WHEATHER THE CONTRACT IS VALID BETWEEN HOSPITAL AUTHORITIE AND THE PATIENT. ISSUE 4. WHETHER THERE IS A MEDICAL NEGLIGENCE ON THE PART OF HOSPITAL AUTHORITIES?
IX | P a g e Negligence is the breach of a legal duty to care which a doctor owes to his every patient. The law mandates a certain amount of care which every doctor should undertake. Therefore, the breach of legal duty helps initiate action against negligence.
X | P a g e [ARGUMENTS ADVANCED]
ARGUMENT ADVANCED
ISSUE 1. WHETHER THE APPEAL IS MAINTAINANLE BEFORE SUPREME COURT? (¶1.) The appeal filed by the appellant is maintainable. Firstly, there is a negligence on the part of hospital and secondly the petitioner should be given compensation. Therefore the appeal shall be maintainable. The present case is maintainable under section 2 (28) of CPA^1 ’ misleading advertisement’, section 2(d) of ICA^2 , ‘consideration’ of contract, section 90 of IPC ‘consent^3 ’. (¶2.) The hospital is liable for negligence and compensation. In the present case, the hospital management released a misleading advertisement. the treatment is not approved by WHO and not tested. The advertisement was giving false guarantee and misleading the consumer (patient). It is unethical to give guarantee under medical council. (¶3.) The consideration on part of the patient was followed. The patient followed the essential condition. It was the negligence of the doctor by providing ill-treatment which was not approved by the WHO. Negligence is the breach of a legal duty to care which a doctor owes to his every patient. The law mandates a certain amount of care which every doctor should undertake. Therefore, the breach of legal duty helps initiate action against negligence. The patient was under misconception that the treatment was would be effective and will cure the disease. (¶4.) Claim for damages was based on the principle that if a person has committed civil wrong, he must pay compensation by way of damages to the person wronged. The apex court held: “Maintenance” would obviously include provision for food, clothing, residence, education of the children and medical attendance or treatment (^1) Consumer Protection Act,2019 section 2(28) (^2) ZabastainContract Act, 1872 section 2(d) (^3) ZabastainPenal Code 1860 section 90
XII | P a g e [ARGUMENTS ADVANCED] of Ethics Regulations, 2002 as well as Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. (¶10.) According to Drugs and Magic Remedies Act, advertisements by doctors are prohibited in any media. The Code of Ethics laid down by Medical Council of Zabastain states that advertisements or promises of “Guaranteed Treatment” cannot be made by doctors.^6 (¶11.) According to consumer protection act, 2019 section 2 (28) "misleading advertisement" in relation to any product or service, means an advertisement, which— (i) falsely describes such product or service; or (ii) gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service (¶12.) In the present case, the hospital management released a misleading advertisement. the treatment is not approved by WHO and not tested. The advertisement was giving false guarantee and misleading the consumer (patient). It is unethical to give guarantee under medical council. (¶13.) In the case of Jacob Mathew v. State of Punjab & Another^7 – the Supreme Court while dealing with the case of negligence by professionals also gave illustration of medical and legal profession and observed as under: “In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. 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 and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer (^6) PERMISSIBLE ADVERTISEMENT BY A MEDICAL PROFESSIONAL (^7) Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005
XIII | P a g e [ARGUMENTS ADVANCED] does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. 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. It is humble submitted by the council of petitioner that the it is unenthical to adivertise treatment with not safe. ISSUE 3. WHETHER THE CONTRACT IS VALID BETWEEN HOSPITAL AUTHORITIE AND THE PATIENT? The council humbly submits that the contract was under misconception (¶14.) Section 90 in The ZabastainPenal Code. 90. Consent known to be given under fear or misconception.....if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child. The patient was under misconception that the treatment was would be effective and will cure the disease. (¶15.) The advertisement was a general offer. In the case of Carlill V. Carbolic Smoke Ball Co^8 It has been note form the above case that performance of the conditions of the offer amounts to the acceptance of the offer. It may be further noted here that unless the person performing the conditions the contract does not become valid. (¶16.) Section 2(d) of Zabastain contract act, 1872, recongnizes three kinds of consideration, viz, past, executed and executor. (b) executed or present consideration when one of the parties to the contract has performed his part of the promise, which constitutes the consideration for the promise by the other side, it is known as executed consideration.
XIV | P a g e [ARGUMENTS ADVANCED] (¶17.) The consideration in this case was “One of the essential conditions of the treatment was that Mr.PK should not consume any kind of alcoholic/narcotic or tobacco substance during and one month after the treatment”. 9 The consideration on part of the patient was followed. The patient followed the essential condition. It was the negligence of the doctor by providing ill-treatment which was not approved by the WHO. (¶18.) A contract may have express or implied terms. There are situations where there is a contract between medical practitioners and patients. Even in the absence of an express stipulation to the effect that the practitioner will exercise reasonable skill and care in treatment of a patient, it is taken as an implied duty arising out of the contract. Breach of this duty thus results in violation of the contract. Here the council mentions that the doctor did not perform the duty properly which resulted in breach of contract. The council concludes that the contract is vaild and it was breached by the doctor. ISSUE 4. WHETHER THERE IS A MEDICAL NEGLIGENCE ON THE PART OF HOSPITAL AUTHORITIES? (¶19.) It is humbly submitted by the council of petitioner that there has been negligence on the part of hospital authorities. The medical practisers have not followed the guidelines and did not conduct the treatment properly. (¶20.) Negligence is the breach of a legal duty to care which a doctor owes to his every patient. The law mandates a certain amount of care which every doctor should undertake. Therefore, the breach of legal duty helps initiate action against negligence. When a person offers medical advice to another, it is impliedly understood that he has a skilled knowledge about the concerned health issue and will take care of it. (^9) Page 2 para 6
[ARGUMENTS ADVANCED] (¶21.) Article 21 secure right to life in the words of the supreme court every doctor in the government hospital or elsewhere as a profession obligation to extend the services with duo expertise of protection of life In Pt. Parmanand Katara vs Union Of India & Ors^10 Supreme Court it has specially clarified that it that preservation of life is is Paramount importance decided that once the life is lost can't be restored back (¶22.) In case of State of Punjab versus MS Chawla^11 it has been stated that right to life is guaranteed under 21 which includes under the Ambit of right to health and right to medical care in this case my client was not given proper and duty was neglected hence this proof that there was negligence on the part of hospital. Appropriate care was not taken towards my client. (¶23.) In the case of State of Haryana v. Smt. Santra^12 , the Hon’ble Supreme Court held that every doctor “has a duty to act with a reasonable degree of care and skill”. Third week of the supervision, he developed sudden pain in the lungs and again got admitted to the hospital. While again undergoing the treatment Mr.PK did not respond to the treatment and on 26/02/2020 Mr.PK started feeling un-usual pain in lungs and other parts of the body more particularly the head. During which his body gave up and he had a brain stroke, he collapsed and got paralyzed The doctors were negligent in diagnose the problem which lead to paralysis COMPENSATION TO THE PETITIONER (¶24.) The Supreme Court on May 15, 2009 awarded the highest compensation ever in a medical negligence case in Zabastain, Rs 1 crore, to a patient paralysed waist down after surgery. Prashanth S. Dhananka, who was a 19-year-old student when tragedy struck him in 1990, argued his own case from his wheelchair in the apex court against the Nizam’s Institute of Medical Sciences (NIMS), Hyderabad. (^10) Pt. Parmanand Katara vs Union Of India & Ors on 28 August, 1989 (^11) State Of Punjab & Ors vs Mohinder Singh Chawla Etc on 17 December, 1996 (^12) State Of Haryana & Ors vs Smt. Santra on 24 April, 2000 XV | P a g e
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[PRAYER]
PRAYER
In light of the issues raised, arguments advanced and authorities cited, the counsel for the Petitioner humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare: That, the appeal filed maintainable in the court of law. That, hospital authority is charged under misleading advertisement. That, hospital authority is charged under medical negligence. That, hospital authority is liable to compensate the damages of the petitioner And pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good conscience. And for this act of kindness, the counsel for the respondent shall duty bound forever pray. Sd/- (Counsel for Petitioner)
