PETITIONER TC-09

TC– XXXIV

HIMACHAL PRADESH NATIONAL LAW UNIVERSITY

4 TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT OF INDICA

SPECIAL LEAVE PETITION NO. 254 /2019

VIKRANT MATHUR (Petitioner)

VERSUS
QUICK HEAL HOSPITAL (Respondent)

PETITION INVOKED UNDER ARTICLE 136 OF THE

CONSTITUTION OF INDICA

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION JU STICES OF THE HON’BLE SUPREME COURT OF INDICA

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

MEMORANDUM OF ARGUMENTS FOR THE PETITIONER

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PETITIONER TC-XXXIV

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ..................................................................................................... i

INDEX OF AUTHORITIES…………………………………………………………… ii &.iii

I. CASES………………………………………………………………………………ii

II. STATUTES……………………………………………………………………….....ii

III. CONSTITUTIONAL PROVISIONS……………………………………………......ii

IV. ARTICLES, BOOKS AND REPORTS………………………...…………………..iii

V. JOURNALS REFRRED……………………………………………………………iii

VI. DATABASE REFRRED…………………………………………………………...iii

STATEMENT OF JURISDICTION…………………………………………………………iv

STATEMENT OF FACTS……………………………………………………………….v &vi

STATEMENT OF ISSUES………………………………………………………………....vii

SUMMARY OF ARGUMENTS………………………………………………………….…8

ARGUMENTS ADVANCED…………………………………………………………… 9-21

I. WHETHER THE SLP FILED UNDER ARTICLE 136 IS MAINTAINABLE ?

1.The SLP filed by Vikrant is maintainable……………………………………………9

2. Issues of general public importance……………………………………..………..9

3. Injustice has been done by violating article 21 followed by the cancellation of

remedy by NCDRC………………………………………………………….…10

4. Facts are not correctly presented before the hon’ble court……………………….10.

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II. WHETHER THE RESPONDENT IS AT FAULT UNDER MEDICAL NEGLIGENCE
OR NOT?

1. There was an inappropriate and ineffective medication ………………………11-13

2. There was premature discharge of the deceased despite her condition warranting
treatment in ICU…………………………………………………………………14-15

3. There was oral administration of polypod antibiotic, despite her critical condition
when intravenous administration was needed……………………………………15-16

III. IS DUTY OWED BY THE MEDICAL PRACTITIONER BREACHED ON

ACCOUNT OF DERELICTION ?

1.There was negligence in taking medical history………………………………16-17

2.There was Negligence in the matter of selecting a more efficient medicine……..17

3. Negligence in the matter of taking consent for insertion of nasal feed tube…17-18

PRAYER………………………………………………………………………………………….19

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LIST OF ABBREVIATIONS

& And
% Percentage
¶ Paragraph
A. Article
A.I.R All India Reporter
Anr. Another
Dr. Doctor
Edn Edition
Govt. Government
HC High Court
Hon’ble Honourable
Ibid Same as immediately above
ILR Indian Law Review
MANU Manupatra
No. Number
(P) Ltd Private Limited
PIL Public Interest Litigation
P&H Punjab and Haryana
Pg. Page
Ors. Others
SCC Supreme Court Cases
SC Supreme Court
UOI Union of India
v. versus
Vol Volume

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INDEX OF AUTHORITIES

I. CASES

1) A.S Chandra Vs UOI,(1992)1 ALT 713…………………………………………………9

2) VP Shantha Vs Indian medical association, 1996 AIR 550, 1995 SCC (6) 651……..…10

3) Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors 1996 SCC (2) 634, JT
1996 (2)624……………………………………………………………………………...11

4) Jacob Mathew v. State of Punjab, A.I.R 2005 S.C. 3180……………………………….13

5) Bolam v Friern Hospital Management Committee [1957] 1 WLR 582……………..…13

6) Kunal Saha Vs AMRI (2009) 9 SCC 221………………………………………………13

7) State of Gujarat v. Laxmiben Jayantilal Sikligar A.I.R. 2000 Guj 180………………….15

8) Kusum Sharma Vs. Batra Hospital & Medical Research Centre AIR 2010 (SC) 1050....17

9) C.S. Subramaniam v. Kumaraswamy, (1994) C.P.J.509………………………………...17

10) Samira Kohli v. Prabha Manchanda & anr., A.I.R. 2008 S.C. 1949…………………….18

II . STATUTES

1) Indian Contract Act 1872…………………………………………………………………18

2) Consumer protection act,1986……………………………………………………..……9,10

III . CONSTITUTIONAL PROVISIONS

1) Art. 136 , The Constitution of India, 1950………………………………………………….9

2) Art.21 , The Constitution of India, 1950………………………………………………….10

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IV . ARTICLES , BOOKS AND REPORTS

1)Dr. Jagdish Singh, Medical Negligence and Compensation, Bharat Law Publication,
Edn. 4rd 2014…………………………………………………………………………….14
2)Anderw Grubb, Bacterial infection, Oxford University Press, 3rd Edn 2010…………....14
3)Dr Lily Srivastava, Law & Medicine, Universal Law Publishing,4th Edn 2010………...11
4)Emily Jackson, Medical law, Orford Publication, Edn 2nd 2010………………………..13
5)Lord Mackay of Clashfern, Halsbury’s Laws , Lexis Nexis, Vol. 30 (1) Edn 4th,2005...14
6)T D Dogra, Medical Jurisprudence & Toxicology, Delhi law House, Edn 11th 2008……14
7)Sweet & Maxwell, Medical Negligence, South Asian Edition, Edn 5th 2010…………...11
8)Tapas Koley, Medical Negligence , The Law in India, Oxford Publication Edn 2010…. 12
9)Dr. R.K. Bangia Law of Torts, (23rd ed.,Allahabad Law Agency,2013)………………..14
10)Henry Campbell Black, Black’s Law dictionary, (4th ed St. Paul minn. West Publishing
Co., 1968)…………………………………………………………………........................11

V . JORUNALS REFRRED

1) All India Reporter……………………………………………………………………..17

2) Supreme Court Cases…………………………………………………………………16
3) Indian Law Reporter …………………………………………………………………..17
4) Company Law Journal ……………………………………………………………...…16

VI . DATABASE REFERRED

1) www.lexisnexis.com.....................................................................................................14
2) www.scconline.com.......................................................................................................16
3) www.westlaw.com......………………………………………………...........................16

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STATEMENT OF JURISDICTION

SPECIAL LEAVE PETITION NO. 254 /2019

The petitioner herein is Mr. Vikrant Mathur humbly submit to the jurisdiction of
hon’ble court under art. 136 of the Constitution of India. The Hon’ble Supreme Court
of India has the jurisdiction in this case under Article 136 of the Constitution of India .

The present memorandum sets forth the facts , contentions and arguments in the
present case.

_____________________________
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces
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STATEMENT OF FACTS

1. Neha and Vikrant are wife and husband. Neha has been suffering from various health issues. In
recent times her problems have become complex as she is diagnosed with oesophageal cancer and
hypertension. She had already been on diabetic alerts before being diagnosed with cancer and
hypertension. She had been under observation for her ailments under the supervision of Dr. Shalabh
Saxena. Vikrant is also a rheumatologist.

2. On April 20, 2019, at around midnight, she complained to Vikrant of severe anxiety and suffocation.

3 Vikrant sent the WhatsApp message to Shalabh regarding the problems Neha is complaining and she
is urgent need of him. The doctor was familiar with her ailment history. Shalabh after reading the
messages replied that he is abroad for fifteen days and prescribed to give her a paracetamol for the time
being. He advised to take her to the hospital for immediate examination. After taking the prescribed
medicine of Doctor Shalabh, Neha felt relaxed. She said to Vikrant to wait till morning to visit the
Hospital she did not follow the advice of shalabh.

4. Next morning, she was admitted in a renowned nearby hospital named Quick Heal Super Specialty
Hospital. It was a private hospital (Respondent No. 1). In the hospital she was treated by a doctor
Sivakant Jhunjhunwala (Respondent No. 2). She was diagnosed with chills and fever.

5. Nasal feed tube was inserted on the same day by Dr. Anurag (Respondent No. 3) with some allied
tests prescribed to be carried out.

6. One of the tests was a Complete Blood Count Report, which found that the WBC count was high,
indicative of infection. She had also running temperature of 102 degrees Fahrenheit, and her medical
treatment commenced with intravenous administration of injection Magnex of 1.5 mg. As per the
medical reports, the cannula used for intravenous treatment stopped functioning and (Respondent No.3)
Doctor prescribed a further antibiotic tablet, Polypod (Cefpodoxime) to be orally administered through
the nasal tube.

7. The patient was then discharged from Hospital on 23. 04.2019. At this stage her WBC count was
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high and she was prescribed to continue taking her medicines for a period of 15 days post discharge,
which apparently was administered to her, as per Vikrant.

8. The Vikrant reported that on 29.04.2019, his wife collapsed and had to be admitted to a nearby
different hospital. It was a General Hospital. Doctor Vincent Mattu supervised Neha. Doctor Vincent
said that the overdose of antibiotic tablet, Polypod (Cefpodoxime), was the reason of Neha’s fatal
collapsing said this without any solid evidence she finally succumbed to her illness on 01. 5.2019.

9. On the basis of discussion, Vikrant decided to sue the doctors in Quick Heal Hospital for negligence
which caused the fatal effect on his wife. Vikrant, the appellant, filed a complaint with the Medical
Council of India. He approached the State Consumer Commission by pleading the hospital were liable
for medical negligence.The appellant sought to make out a case of gross medical negligence by
highlighting the manner in which medical treatment was administered to Neha and her subsequent
discharge from the Quick Heal Hospital.:
(a) Inappropriate and ineffective medication;
(b) Premature discharge of the deceased despite her condition warranting treatment in the ICU;
(c) Oral administration of Polypod antibiotic, despite her critical condition, which actually, required
intravenous administration of the medicine.

11.The stand of the respondents was that when the patient was discharged, she was afebrile, her vitals
were normal and she was well-hydrated, with no infection in her chest or urinary tract. She was stated
to be clinically stable and that is why she was so discharged with proper medical prescriptions for the
next 15 days.
12. The State Commission decided in favour of the appellant and directed a compensation of Rs.15 lakh
and costs of Rs.51,000/- to be paid to Vikrant, husband of the deceased.

13. Aggrieved by the said order of the State Commission, the respondents preferred an appeal before
the National Consumer Disputes Redressal Commission (NCDRC), which exonerated the respondents
from all imputations of medical negligence.

14. Vikrant filed a Special Leave Petition (SLP 254 of 2019) before the Hon’ble Supreme Court, against
the orders of NCDRC. Leave has been granted. The case has been listed as (Vikrant Mathur v. Quick
Heal Hospital SLP 254 of 2019) for hearing on 21st March, 2020.

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STATEMENT OF ISSUES

ISSUE I

WHETHER THE SLP FILED UNDER ARTICLE 136 IS MAINTAINABLE?

ISSUE II

WHETHER THE RESPONDENT IS AT FAULT UNDER MEDICAL NEGLIGENCE OR NOT?

ISSUE III

IS DUTY OWED BY THE MEDICAL PRACTITIONER BREACHED ON ACCOUNT OF

DERELICTION?

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SUMMARY OF ARGUMENTS

I . Whether the SLP is maintainable before the Hon’ble court?

The SLP filed against the quick heal super speciality hospital and its doctors is maintainable as the
case raises the question over basic fundamental right i.e. Right to life .If the Hon’ble court does not
do justice in this matter then it will lead to gross injustice .It is a matter of general importance as it
involves the trust of general public on There is violation of article 21 of constitution which deals with
right to life which makes respondent liable for the demise of petitioner’s wife and a suitable
compensation should be given to petitioner and so this issue is of public importance.
II. Whether the respondent is at fault under medical negligence or not ?
Medical negligence is careless therapy of a patient by a doctor. In Neha’s case there was eroor in
diagnosis and treatment which led to ineffective and inappropriate medication. Neha was a patient
with various complexities such as cancer , hypertension and diabeties. After all these , she was
experiencing chills and fever with a high WBC count which indicates that her condition was
deteriorating , but doctors presumed it to be a normal infection . Another fault done by doctors was
that they administered a very strong antibiotics to Neha that too orally through her nasal tube.
Antibiotics are hazardous for cancer patients as it deteriorate immunity and Neha was already
immuno-compromised . She was discharged prematurely despite her critical condition demanding
treatment in ICU. This clearly indicates negligence of doctors . Antibiotics were being administered
orally to Neha which is really risky as it takes time to get absorbed and it cannot be given in exact
amount. There is chance to give antibiotics in Overdose if administered orally, which happened as
she collapsed after a few days of discharge. Hence , all these points proves that there was negligence
on the part of respondents
III . Is duty owed by the medical practitioner breached on account of dereliction?
Dereliction is defined as failure of a doctor to honour his duty owed to a patient. Neha’s case
is clearly a case of dereliction , as she wasn’t diagnosed and treated properly by doctors. There
was dereliction in taking her medical history, which resulted in prescribing wrong
medications which didn’t suited her and even deteriorated her health. There was negligence
in the matter of taking consent for insertion of nasal feed tube. No consent was taken from
Neha to insert nasal feed tube. It clearly indicated violation of section 13 of Indian Contract
Act , 1872 by the respondent

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ARGUMENTS ADVANCED

I . WHETHER THE SLP IS MAINTAINABLE BEFORE THE HON’BLE COURT?

1.The SLP is maintainable.

It is humbly submitted before the Hon’ble SC that, the SLP filed against the Qucik Heal Hospital and
its doctors by the Mr. Vikrant is maintainable since, the case raises the question over basic
fundamental right i.e. Right to life. If the Hon’ble does not do justice in this matter then it will lead
to gross injustice and an innocent is served with injustice, by the judgement announced by the
NCDRC. As it is mentioned in the case of A.S. Chandra v. Union of India1, a Division Bench of the
Andhra Pradesh High Court had held that service rendered for consideration by private medical
practitioners, hospitals and nursing homes must be construed as ‘service’ for the purpose of section
2(1)(o) of CPA2 and the persons availing such service were ‘consumers' within the meaning of section
2(1) (d) of the Act and in this case NCDRC exonerated the Respondent from all the imputations of
medical negligence doing gross injustice. Thus, the SLP of the petitioner must be accepted by the
Hon’ble SC so that court will be able to use its discretionary rights conferred u/a Art. 1363 , to impart
justice to the petitioner.

2.Issue of general public importance

It is humbly submitted before the Hon’ble Court that this matter is of general importance as it involves
the trust of the citizens on the doctors . Doctor –patient relationship is a widely trusted relationship and
it is of public importance because nowadays every citizen of the country is connected to a doctor. Hence
it makes this matter of public importance because now it is a case where “justice should not only be
done, but should manifestly and undoubtedly be seen to be done4” not only be served but also to be
shown. U/a art. 136, the SC has discretion to discuss the issue if it finds it necessary to do so. Art. 136
gives this court the broadest power to deal with any cause or matter .

1
A.S Chandra Vs UOI,(1992)1 ALT 713.
2
68,consumer protection act,1986, §34, 1991

3
Art. 136, The Constitution of India, 1950 .

4 R v Sussex Justices, ex parte McCarthy [1924] KB 256.

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3. Injustice has been done by violating article 21 followed by the cancellation of

remedy by NCDRC.

It is humbly submitted before the Hon’ble Court that the matter raises the question over Right to Life.
Our Constitution provide fundamental right of right to life u/a art. 21 which states that “No person
shall be deprived of his life or personal liberty except according to procedure established by law, nor
shall any person be denied equality before the law or the equal protection of the laws within the
territory of India.”5According to the judgement in case of VP Shantha Vs Indian medical association6
where it was held that medical services are to be included under the definition of services as provided
under Section 2(1)(o) of the consumer protection act7 and thus any deficiency in such medical service
will be liable to be given compensation for whereas In this case due to the negligence of the doctors
at the hospital the patient Neha lost her life which infringe her right to life even then the petitioner
has been served with gross injustice by NCDRC because they have cancelled the compensation
granted which was granted by state commission.

4.Facts are not presented correctly before the Hon’ble court.

The discovery of facts will stand in the way of the exercise of this power. The medical reports of
patient did not investigated properly before the Hon’ble Court like blood count report etc. It is
therefore humbly submitted, on the above grounds, that the petition can be maintained before the
Hon'ble SC of India.

II . WHETHER THE RESPONDENT IS AT FAULT UNDER MEDICAL

NEGLIGENCEOR NOT?

Medical negligence otherwise called medical misbehavior is inappropriate, incompetent,or careless

therapy of a patient by a doctor, dental specialist, attendant, drug specialist, or other medical care
professional.

__________________________________
5
_ Art.21, The Constitution of India, 1950.
6
VP Shantha Vs Indian medical association, 1996 AIR 550, 1995 SCC (6) 651
7
68,consumer protection act,1986, §34, 1991

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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 administration of that treatment. A breach of any of these duties will support an
action for negligence by the patient” .
Medical negligence happens when a medical care supplier strays from the perceived "standard of care"
in the therapy of a patient. The "standard of care" is characterized as what a sensibly judicious medical
supplier would or would not have done under the equivalent or comparable conditions. "Being in such
a calling where debilitated, sick and victims are your clients who view you as the god-like, an outright
measure of care is normal."8 This sort of error is called negligence. On the off chance that a proprietor
of the café can be sued for giving inferior quality of food then even a specialist can be sued for giving
bad quality of treatment and care.

Black’s Law Dictionary9 defines negligence per se as “conduct, of action or omission, which may be
declared as negligence without any argument or proof as it violates dictates of common prudence”
Black’s. Law Dictionary defines negligence per se as “conduct, of action or omission, which may be
declared as negligence without any argument or proof as it violates dictates of common prudence.

“A medical practitioner has duties towards his patients and he must exercise a reasonable degree of
care . This is the least which a patient expects from a doctor”. This was stated by court in Achutrao
Haribhau Khodwa V. State of Maharashtra (1996).10

1 . There was inappropriate and ineffective medication .

Diagnostic errors are an inability to give an exact and ideal clarification of the patients medical issues
or impart that clarification to the patient . They are considered as botched occasions to make a right or
convenient conclusion dependent on accessible proof. The botched chance may result from
psychological or on the other hand framework factors or both.
___________________________________
8
24 ,Dr Lily Srivastava, Law & Medicine, Universal Law Publishing,4th Edn 2010
9
[Henry Campbell Black],[ Black’s Law dictionary],[ ST. PAUL, MINN. WEST PUBLISHING CO.]6th Edn 2008
10
Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors 1996 SCC (2) 634, JT 1996 (2) 624
11
39,Sweet & Maxwell, Medical Negligence, South Asian Edition, Edn 5th 2010

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There was an error in diagnosis with respect to specialist, since Neha wasn't looked up well. She was
experiencing esophageal cancer , and when she was admitted to the emergency clinic her WBC tally
was high characteristic of infection as indicated by the respondents , yet as she was experiencing cancer,
leukocytosis (high check of WBC) could mean her disease was deteriorating. It shows that body is
attempting to obliterate some outsider thing which have entered the invulnerable framework.
Generally when WBC count is high in a cancer patient it is because it indicates that the cancer is getting
worsened12. On the off chance that this was thus, at that point she may have required a chemotherapy
rather than antibiotics as given by respondents.As Neha was a patient of esophageal cancer she was
vulnerable to antibiotics but doctor being ignorant of this condition of Neha prescribed her Antibiotics
i.e, Polypod.
In the case of Dr. Lakshman Balkrishna Joshi v. Triambak Bapu Godbole6 , Punjab and Haryana High
Court cites “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 a really low degree of care and
competence judged within the light of the actual circumstances of every case is what the law requires.
The doctor, no doubt, has a discretion in choosing treatment which he proposes to offer the patient and
such discretion is comparatively ampler in cases of emergency.”13
Antibiotics are hazardous for cancer patients and is avoided for cancer patients. The administration
of antibiotics can indiscriminately kill advantageous bacterial groups, such as Lactobacillus ( it
helps body to absorb nutrients and fight unfriendly organisms ) and Bifidobacterium(helps to digest
dietry fiber , prevents infection , produce vitamins and other important chemicals), in addition to the
pathogenic bacteria . The intestinal microbiome plays a very important role in cancer treatment. Thus,
the use of antibiotics not only leads to disruption of the microbiome, but also reduces the body's immune
capacity and promotes inflammation, which ultimately may impact and reduce the effect of cancer
treatment14 . If leukocytosis was a reason of cancer getting worse, then the administration of antibiotics
might have worsened health of Neha which clearly proves medical negligence on the part of
respondents.
______________________________________
12
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3635827/#:~:text=Elevated%20WBC%2C%20particularly%20neutroph
ils%2C%20is,to%20elicit%20the%20mechanisms%20involved.
13
234 ,Tapas Koley, Medical Negligence , The Law in India, Oxford Publication Edn 2010
14
https://www.onhealth.com/content/1/bacterial_infections#:~:text=A%20bacterial%20infection%20is%20a,be%20caused
%20by%20harmful%20bacteria.

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It is stated in Jacob Mathew v. State of Punjab15 and in Bolam v. Frien Hospital Management16 , the
principles which make an act negligent, thus also known as Bolam test. In given case, there is a duty
of care towards the patient by the respondents as they undertake the case, they decides what treatment
to give and also administer the treatment to the patient for the time patient is admitted to the hospital
as given by the proposition .

Antibiotics are generally taken in bacterial attacks and is taken only if the doctor has prescribed the
same. Overdose of Antibiotics is not at all good for health. In fact, taking antibiotics when they are not
really necessary will not speed your recovery and can even contribute to a problem known as antibiotic
resistance. Antibiotic resistance refers to the capacity of many bacteria to become resistant to a
particular antibiotic so that it is no longer effective against these bacteria. It is known that the increasing
use of antibiotics when they really aren't needed has contributed to this problem and has led to the
evolution of many bacterial strains that no longer respond to treatment with common antibiotics.

In Kunal Saha Vs AMRI (Advanced Medical Research institute )18 , filed in 1998 with the allegation
of medical negligence on Kolkata based AMRI Hospital and three doctors namely Dr. Sukumar
Mukherjee, Dr. Baidyanath Halder and Dr. Balram Prasad. In simple layman term, the wife was
suffering from drug allergy and the doctors were negligent in prescribing medicine which further
aggravated the condition of patient and finally led to death. In brief this was the facts and circumstances
of the case, in this case the final verdict was given by the Supreme court on 24th October 2013 and a
compensation of around 6.08 crore for the death of his wife. In Neha's case also we can see there was
overdose of Antibiotic called cefrodoxime which is generally considered as a very strong antibiotic.
This overdose of Antibiotic was the reason for collapsing of Neha as stated by Dr. Vincent Mattu. This
clearly indicates that she wasn't diagnosed properly by respondents which resulted in overdose of
antibiotic leading to her death.

_______________________________
15
Jacob Mathew v. State of Punjab, A.I.R 2005 S.C. 3180
16
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
17
Emily Jackson, Medical law, Orford Publication, Edn 2nd 2010
18
Kunal Saha Vs AMRI (2009) 9 SCC 221

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2 . Pre Mature discahrge of deceased despite her condition needing treatment in ICU
According to the data’s of government of India patients who leave ICU before they are considered fit
for discharge are twice as likely to die, despite minimal difference in their risk of death on ICU
admission19. Neha being a patient of complex diseases was supposed to be kept under the supervision
of doctors and demanded high level of medication because a person with diabetic alert , hypertension
and esophageal cancer was not supposed to be discharged with high WBC count as they could not
recover easily compared to a normal person20. High sugar level weakens the persons immune system
and allow bacteria to grow and develop quickly21 , following these reason Neha’s discharge was surely
premature.

Premature discharge also results when a patient is seen in a hospital or other medical facility, proper
discharge testing isn’t done, and the patient is discharged instead. Medical providers are required to do
proper diagnostic testing in Premature also order to determine a patient’s condition and then be able to
treat it22. If this isn’t done and the patient is discharged instead, the hospital or other medical facility
that did the discharging will be responsible if a condition is missed. If the condition later becomes worse
because it was missed in the hospital or other medical facility, then the medical facility will be
responsible for the worsened condition23. In Neha’s case diagnosis was not even done properly, only
test related to blood and other ordinary checkup was done.

The plea taken by the respondent is that when patient was discharged she was afebrile and not having
any infection. But the blood count report at the time of discharge shows a high count of WBCs which
is an indicator of fighting with infections or fever but both these situations were not present at the time
of patient’s discharge as per Quick Heal Super Speciality Hospital . And if doctor prescribed him any
medications apart from standard protocol, the she should remain in ICU for more better administration
of treatment. In Neha's case also she was discharged pre maturely because of the negligence of doctors
. When Neha was discharged from Quick Heal Hospital , her WBC count was still high which indicates

___________________________________

19
321,Dr. Jagdish Singh, Medical Negligence and Compensation, Bharat Law Publication, Edn. 4rd 2014
20
Anderw Grubb, Bacterial infection, Oxford University Press, 3rd Edn 2010
21
Lord Mackay of Clashfern, Halsbury’s Laws , Lexis Nexis, Vol. 30 (1) Edn 4 th,2005
22
T D Dogra, Medical Jurisprudence & Toxicology, Delhi law House, Edn 11 th 2008
23
Dr. R.K. Bangia Law of Torts, (23rd ed.,Allahabad Law Agency,2013

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that she still was suffering from infection which was caused because her disease worsened even more ,
despite she needing more care during this time , she was discharged. This even worsened her condition
after a few days of discharge after which she died. This indicates that Neha died because of negligence
of doctors.
3 . Oral administration of polypod antibiotic, despite her critical condition which actually
required intravenous administration of the medicine.
Neha’s medical treatment commenced with intravenous administration of injection Magnex of 1.5 mg.
As per the medical reports, the cannula used for intravenous treatment stopped functioning and
(Respondent No.3) Doctor prescribed a further antibiotic tablet, Polypod (Cefpodoxime) to be orally
administered through the nasal tube. Note by the actions of respondent that Neha’s condition demanded
intravenous administration but just because cannula stopped working doctors shifted from intravenous
to oral administration during treatment of such a critical condition .
In State of Gujarat v. Laxmiben Jayantilal Sikligar26, the surgeon admitted that being negligent he made
no efforts to find a better treatment for the patient. Here also, respondent prescribed Polypod instead of
an intravenous medicine just because canula is blocked27. He can even change the blocked canula
instead of prescribing another medication and its overdose results into the overdose of Antibiotic,
Polypod.
Also, Doctor has a duty to check medical history of the patient before administering any treatment as
Neha was already suffering from hypertension and diabities and Polypod is not suitable for the diabetic
patients but this fact is ignored here. So respondent doctors owed a duty of care towards the patient,
Neha and this duty is breached by deciding less preferable medication and it is not even administered
in an efficient manner. The breach of duty results in tort of negligence28.
Do note the previous and the first treatment which was given to Neha was through intravenous
administration in which doctor was passing medication of magnex 1.5 mg dosage in Neha’s body. As
soon as doctors shifted to oral administration they prescribed her polypod of 200Mg which was 10
times of magnex 1.5 (her previous dose)29. This suggests that doctor was negligent as he gave Neha
more than the required dosage of medication. Oral administration as a slow onset of action it means
after entering into body it effects slowly but as you can see Neha was in critical condition.
_________________________________
26
State of Gujarat v. Laxmiben Jayantilal Sikligar A.I.R. 2000 Guj. 180
27
moot proposition 9
28
Dr. R.K. Bangia Law of Torts, (23rd ed.,Allahabad Law Agency,2013)
29
https://pharmeasy.in/online-medicine-order/polypod-200mg-tablet-17631

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She needed immediate treatment .But on the other hand if doctors used intravenous administration , it
could have been advantageous .The intravenous route has a number of advantages. Drug is delivered
immediately upon the completion of a response requirement and since delivery is into a vein, there is a
rapid onset of drug effects. Such immediacy results in rapid acquisition and strong maintenance of
behavior. A related advantage is the delivery of precise quantities of drug. This is in contrast to the
pulmonary route, where the amount of drug ingested per delivery is difficult to quantify. Use of the
intravenous route also permits the experimenter to give non-contingent drug deliveries without
disturbing the subject30.

Notwithstanding Neha's basic condition , doctors were giving her antibiotics orally , while she required
intravenous administration of the medication. Also, this was on the grounds that the Cannula of magnex
injection stopped working , doctors moved prescription orally. The cannula might have been supplanted
by the doctors however they didn't did this rather they began administering polypod orally which had
different hindrances . One of which was seen after discharge. As indicated by medical science in
intravenous organization of medications one can give the specific measure of medication which is
required while there is an opportunity of ingesting too much if meds are administered orally .

III . IS DUTY OWED BY THE MEDICAL PRACTITIONER BREACHED ON

ACCOUNT OF DERELICTION ?

“ Dereliction is defined as failue of a doctor to honour his duty owed to a patient. Such breach of duty
may be an act of commission or an act of omission, with the latter carrying more punitive action.
Causation of damage to the patient on account of dereliction: this occurs if it is proved that breach of
duty was the real cause of damage.31” Defective treatment cannot be counted as negligence only until
supportive positive evidence including expert opinion is brought on record.32

________________________________
30
https://www.healthline.com/health/intravenous-medication-administration-what-to
know#:~:text=Drugs%20typically%20given%20by%20IV&text=chemotherapy%20drugs%20such%20as%20doxorubicin
,such%20as%20hydromorphone%20and%20morphine
31
SCC & West Law
32
CLJ

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In Kusum Sharma v. Batra Hospital & Medical Research Centre33, it is laid down that ‘negligence must
be culpable /gross and not merely based upon an error of judgment or diagnosis. But it this case involves
incomplete diagnosis not a defective diagnosis , hence this case should not be seen as a case of judgment
error but a case of incomplete diagnosis

1 . Negligence in taking medical history

Respondent doctors have duty of care in deciding treatment for their patient and in imparting this duty
they must enquire patient’s medical history. The medical case history is an important part of diagnostic
reasoning. By omission of this act results in an incomplete diagnosis of patient’s disease. This act of
enquiring medical history will be performed by any other doctor of reasonable degree of competence34.

2.Negligence in the matter of selecting a more efficient medicine.

At first respondent Doctor prescribes Magnex 1.5mg, an intravenous antibiotic then proscribe it due to
blockage of cannula. But blockage of cannula can be restored by changing cannula as it is normal to do
it. Also for critical conditioned patients intravenous medicines will be preferred by any other doctor of
reasonable degree of competence14. But infact served with a different medication which might not be
suitable for a diabetic and hypertension patient. It happened due to the lack of prior information about
the medical history of the patient causing another dereliction.

3. Negligence in the matter of taking consent for insertion of nasal feed tube
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 court can have the jurisdiction as
ruled out in Vasantha P. Nair v. Smt. V.P. Nair case35. In IMA v. V.P. Shantha36 and others, it is held
by the SC that patients aggrieved y any deficiency in treatment from both, private clinics and Govt.
Hospitals, are entitled to seek damages under the CPA.
________________________________________
33
Kusum Sharma Vs. Batra Hospital & Medical Research Centre AIR 2010 (SC) 1050
34
Indian Law Reporter and All india reporter
35
I (1991) C.P.J. 685; The madras High court held that medical practitioner do not come within the purview of the C.P.A.
:C.S. Subramaniam v. Kumaraswamy, (1994) C.P.J. 509 (D.B.).
36
ibid

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“Consent” as defined under section 13 of Indian Contract Act, 1872 states- “two or more persons are
said to consent when they agree up on the same thing in the same sense.19 ” 37Any type of treatment or
operation done without the consent is legally liable to claim damages for assault. Consent in doctor-
patient relationship is a grant of permission to carry out diagnostic and therapeutic treatment.

As per Samira Kohli v. Prabha Manchanda38 case , a doctor must seek and secure patients consent before
commencing a treatment or surgery. In this case, there is no consent being taken for insertion of nasal
feed tube by surgery. The patient Monica is conscious and sane to give consent and it meant to be
informed to her family also. But there is complete omission in matter of taking consent.

________________________________

37
Indian Contract Act,1872,§13,No.9 ,Acts of parliament,1872(India).
38
Samira Kohli v. Prabha Manchanda & anr., A.I.R. 2008 S.C. 1949.

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PRAYER

Wherefore in light of the issues raised, arguments advanced, and authorities cited, it is prayed
that this Hon'ble SC may be pleased to hold that:

1. the Special Leave Petition is maintainable.

2. the NCDRC err in quashing the decision of State Consumer Commission.
3. the conduct of doctors at the hospital is negligent.

And pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE PETITIONER

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