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i have covered the whole moot problem in the given document with relevant case laws and applied the statute provisions
Typology: Exercises
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WRITTEN SUBMISSION ON THE BEHALF OF APPELLANT
UNIVERSITY 1st^ INTRA MOOT COURT COMPETITION, 2022 BEFORE THE HON’BLE SUPREME COURT OF INDIA
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AIR All India Reporter & And Pvt. Private Govt. Government Hon’ble Honorable H.C High Court ICCU Intensive coronary care unit Ltd. Limited Ors. Others ICU Intensive care unit SCC/ SUPP Supreme Court Cases St. State S.C. Supreme Court RESP. Respondent Acc. According Art. Article Consti. Constitution PHC Primary Health care.
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The present memorandum sets forth the facts, contentions, and arguments in the present case.
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Page 10 of 22 discharged with cardiac supportive medication and asked to come for a review 10 days later. On 09-03-18, the patient developed pain, fever, and discomfort in the operated area and was taken back to the casualty of quick heal hospital.
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It is humbly submitted by the Prosecution before the Hon’ble Supreme Court that there is medical negligence constituting deficiency in service on the part of the respondent under the consumer protection act, 2019 as there is a breach of duty to take care, a breach of duty to decide what treatment to give to the patient, And a breach of duty to decide the administration of treatment, and in the present case the respondents didn’t perform their duty properly which cause medical negligence on the part of the respondents. In the present case, the STATE COMMISSION found gross negligence and dereliction of duty on the part of respondent no. 1,4&5, but the STATE COMMISSION erred in finding the negligence on the part of respondents no. 2&3. II. IS THERE ANY VOLITION OF THE RIGHT TO INFORMED CONSENT OF THE PATIENT? It is humbly submitted by the prosecution before the Hon’ble Supreme Court that there is a volition of the right to informed consent of the patient as it is the right of the patient to receive proper information about the treatment including possible risks and complications, medical procedure, or treatment, but in the present case, management gave proper information neither to the patient nor to his family about the risks and the post-surgery side effects which cause infection to the patient near the surgical area, at the end which causes the death of the patient. III. WHETHER THERE IS ANY NEGLIGENCE ON THE PART OF THE QUICK HEAL HOSPITAL PVT. LTD.? IF NEGLIGENT, WILL THE PRINCIPLE OF VICARIOUS LIABILITY BE ATTRACTED? It is humbly submitted by the prosecution before the Hon’ble Supreme Court that there is negligence on the part of the QUICK HEAL HOSPITAL PVT. LTD as the
Page 14 of 22 doctor of
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It is humbly submitted by the prosecution before the Hon’ble Supreme Court that there is medical negligence constituting deficiency in service on the part of the respondent under the consumer protection act, 2019 as the respondents didn’t perform their duty properly which cause medical negligence on the part of the respondents. It was well stated by the Hon’ble Supreme Court in Laxman Balkrishna Joshi vs Trimbak Bapu Godbole and Anr.^1 That “The duties which a doctor owes to his patient are clear. 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 viz., 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. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.” Similarly, in the present case, there is a breach of duty to take care, a breach of duty to decide what treatment to give to the patient, and a breach of duty to decide the administration of treatment, by the respondents. In the present case, the STATE COMMISSION found gross negligence and dereliction of duty on the part of respondent no. 1,4&5. The Commission found negligence on the part of the Respondents on the following grounds: (i) It is the duty of the doctor to take proper care while performing the surgery but in the present case doctors didn’t take sufficient care while performing the surgery (ii) It is the primary duty of the doctors to ask patient previous history related to the problem then perform any treatment but here (^1 1969) AIR SC
Page 17 of 22 the doctors didn’t use proper diagnostic methods and not caring to ascertain the previous history of the patient (iii)It is the duty of the doctors to provide all the proper information related to the post-surgery side effects but here management gave proper information neither to the patient nor to his family about the risks and post-surgery side effects which let to Poor post- operative care; (iv) when the patient developed pain and discomfort in the operated area and was taken back to the Quick Heal hospital the patient was admitted by the resp.5’s assistant who was not an expert and treated the patient for four days, Delegating the case to a non-expert causes a breach of duty to decide the administration of treatment. The negligent act on the part of the respondents caused the death of the patient. Hence there is medical negligence constituting deficiency in service on the part of the respondent, therefore respondents are liable for their negligent actions.
Page 19 of 22 (^4) Schloendorff v. New York Hospital , 211 N.Y. 125, 105 N.E. 92 (N.Y. 1914)
Page 20 of 22 before administering the therapy, or a clinical researcher may ask a participant in a clinical trial before enrolling that person. Informed consent is obtained from the fields of medical ethics and research ethics^5. In the case of the Salgo vs. Leland Stanford Junior University Board of Trustees (1957), it was held that doctors have an affirmative obligation to disclose information^6 The respondents didn’t even inquire about the previous treatment taken by the patient if any. It is also the duty of the medical professional to inquire about the medical history of the patient at the time of admission of the patient into the hospital. The facts also reveal that respondents 4 & 5 didn’t inquire if the patient had any allergies to any particular tablet, injection, ointment, etc. The previous treatment and medical history of a patient and the information about the medications he is allergic to, are one of the initial steps during the admission of the patient and play an eminent role in preparing the diagnosis by a medical professional. While at the case in hand, the performance of these initial and eminent steps is in absolute absence, which makes the medical professionals negligent on their part. Even if a patient consented to the surgery assuming the risk associated with treatment, it does not mean they have given up all their rights to receive an acceptable standard of care. A patient does not consent to the negligence of a medical professional. The patient was experiencing a persistent itching at the injection site, which is a common side effect of the injection cefixime, despite the fact the hospital staff was giving injection doses, ignoring the fact that it was a result of an allergic reaction to the injection Cefixime. Respondent 5 did not identify the type of infection the patient had and didn’t treat him with the right antibiotic and he failed to take the measures which could have prevented the risk of antibiotic resistance in the patient. The hospital staff did not monitor the vitals of the patient and as mentioned in the facts the patient suffered high sugar levels. The patient was hyperglycemic and was prone to infections post-surgery as having diabetes raises the risk of several types of infections. While the respondent completely ignored monitoring the blood sugar levels and vitals of the patient. When the health of the patient deteriorated drastically and after he developed severe pain and his lips and face were swollen, the duty doctor was informed and then he diagnosed the patient with anaphylaxis allergy. As per the facts, the patient had the symptoms of allergy to the antibiotic injections given by respondent 5. The injection of gentamicin and cefixime can cause aminoglycoside toxicity which can cause renal failure and vestibular damage. Here the doctor was ignorant and negligent made a mistake, and the patient paid for it at the cost of his life. The doctors did not inquire and monitored if the patient was hypersensitive to those antibiotics. The patient would not have had the treatment or would have had another course of treatment and diagnosis if he had known about the risks and would not, therefore, have suffered the loss. Respondent 5 was negligent in advising the patient about the risks. Also, Respondent 5 fails to obtain informed consent which is one of the most fundamental ethics in medicine and a human right (^5) Law insider, https://www.lawinsider.com/ (9 Oct 2022) (^6) Salgo vs. Leland Stanford Junior University Board of Trustees 154 C.A. 2d 560; 317 P. 2d 170. Califonria [sic; California]
