Memorial on behalf of Appellant

TEAM CODE: TC- J133

Intra Class Moot Court

Competition, 2017

IN THE JURISDICTION OF HON’BLE COURT OF INDIA

Sandeep Patil ………….Appellant

V
Breach Candy Hospital

Along with

Breach Candy Hospital ………….Respondant

v.
Sandeep Patil

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

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 Memorial on behalf of Appellant

TABLE OF CONTENTS

SERIAL TOPIC PAGE NO.

NO.

1. List of Abbreviations 3
2. The Index of Authorities 4
3. The Statement of Jurisdiction 6
4. The Statement of Facts 7
5. The Statement of Issues 9
6. The Summary of Arguments 10
7. The Argument Advanced 12
8. The Prayer 21

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LIST OF ABBREVIATION

SERIAL NO. ABBREVIATIONS FULL FORMS

1. A.I.R All India Reporter
2. Guj. Gujarat
3. Ltd. Limited
4. Sec. Section
5. M.P Madhya Pradesh
6. Pat. Patna
7. Del. Delhi

8. S.C. Supreme Court

9. S.C.C. Supreme Court Cases

10. P&H Punjab and Haryana
11. v. Versus
12. Hon’ble Honorable

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THE INDEX OF AUTHORITIES

A.TABLE OF CASES

SERIAL NAME OF CASE AND CITATION PAGE

No. No.
1. Achetrao Haribbhau Khodwa and Ors. V. State Of M.P And 17
Ors
2. Bolam V. Friern Hospital Management Committee 12
3. Dr. Lakshman Balkrishan Joshi V. Trimbak Bapu Godbole 16
4. Eckersley V. Binnie 13
5. Hucks And Cole 14

6. Indian Medical Association V. VP ShanthaAnd Ors 17,18

7. Jacob Mathew V. State Of Punjab 12

8. Juggankhan V. State Of M.P 14,16

9. Kunal Shah V. Sukhman Mukherjee 18

10. M.L Singhal V. Dr. Pradeep Mathur 19

11. Poonam Verma V. Ashwin Patil Ors 14

12. Smt. Soniya Bai Ramswaroop Maorya v..Dr. Pramod Sharma 18
13. Spring Meadown Hospital V. Harjot Alluwaliya 14,19
14. State Of Guj. V. Lakshmibhen Jayantilal Kikligai 19

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B.BOOKS, STATUTE, AND REPORTS

SERIAL NAME OF THE BOOK, THE AUTHOR OR PUBLISHER

No.
1. Law of Torts (R.K Bangia ,twenty thired edition, Allahabad Law Agency)
2. Law of Torts (S.P Singh, fifth edition, Universal Law Publishing Co Ltd)
3. The Consumer Protection Act,1986

D.DYNAMIC LINKS

1. www.manupatra.com
2. www.scconline.com
3. https://indiankanoon.org/

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THE STATEMENT OF JURISDICTION

It is humbly submitted that the Appellant has approached the Hon’ble court invoking its
jurisdiction under The Consumer Protection Act,1986
The appellant has insisted a civil suit for Medical Negligence where they plead for recovering
the loss amount before this Hon’ble court.

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STATEMENT OF FACTS

For the sake of brevity and convenience of Hon’ble Court the facts of the present case are
summarized as follows:

1. The Appellant, Mr. Sandeep Patil, aged about 45 years is a resident at Kandivali East of
Mumbai. On March 2014, Mr. Patil who was suffering from chronic renal failure was
referred by the director of Health Services to Breach Candy Hospital in Mumbai for the
purpose of a kidney transplant. At that stage ,Mr. Patil was already undergoing
haemodialysis twice a week and was waiting for a suitable kidney donor.
2. On May 20, 2014, Mr. Patil approached Dr. Pradeep Kumar Chakraborty, the
Respondent,, a senior consultant at Breach Candy Hospital , with high fever .On May
29,2014 , Appellant who still had high fever agreed to get admitted into the hospital due
to his serious condition.
1. On May 30, 2014, the respondent was further investigated for typhoid fever, which was
negative. He was also investigated for ESR (erythrocyte sedimentation rate), which was
expectedly high in view of renal failure with anemia infection .Urine analysis was also
carried out which showed the presence of bacteria.
2. On June 3, .2014, the reports of the urine culture and sensitivity showed a severe urinary
tract infection due to Klebsiella species (1 lac/ml) responsive only to Amikacin and
Methenamine Mandelate. Methenamine Mandelate cannot be used in patients suffering
from renal failure. So, he was injected with Amikacin for 3 days (from June 5, 2014 to
June 7, 2014). Upon treatment , the temperature of the Appellant rapidly subsided
3. On June 11, 2014, the Appellant complained to the Respondent that he had slight
tinnitus (ringing in the ear) while at the haemodialysis unit. The Appellant continued to
take Amikacin until June 17, 2014. It is alleged that upon hearing the complaint of the
Appellant, the Respondent immediately told the Appellant to stop taking Amikacin and
Augmentin and made corresponding changes in the discharge card. Thereafter,Mr.Patil
was not under the treatment of Dr. Pradeep.
4. On June 14, 2014, June 18,2014 and June 20,2014 the Respondent received
haemodialysis at Breach Candy Hospital and allegedly did not complain of his deafness
(that developed) during those periods. On June 25,2014, the Appellant, got admitted to
Kothari Hospital discharging himself from Breach Candy.
5. On June 30, 2014, the Appellant was operated upon for a transplant and on August 13,
2014, the Appellant was discharged from Kothari Hospital post his transplant.
6. On September,2014, a complaint was filed in State Consumer Commission, Mumbai
against the Respondent and the hospital claiming of an amount of INR 50,00,000 /- on
grounds of medical negligence, irreparable hearing loss and mental agony. The State
Commission ordered compensation of INR 200,000 to the Appellant on August 3, 2015.

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7. Aggrieved by this amount , the Appellant filed an appeal in National Commission on

September 5,2015 claiming enhanced compensation of an amount of Rs. 50,00,000/- .
8. The National Commission directed the nomination of an expert from the All India
Institute of Medical Science,New Delhi to examine the matter and give an unbiased and
neutral opinion. AIIMS nominated Dr. Tanmai Ghosh who was of the opinion that the
Doctor was negligent o his part for not taking reasonable care which he was supposed to
take during his course of treatment.
9. The National Commission awarded compensation of Rs. 40,00,000 to Mr. Patil for the
loss which he incurred.
10. Both the parties approached the Hon’ble Supreme Court. The matter is now before the
Hon’ble Supreme Court of India.

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 Memorial on behalf of Appellant

THE STATEMENT OF ISSUES

ISSUE-1:
Whether the Respondent was negligent or not?

ISSUE-2:
Whether the compensation awarded is just and fair?

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SUMMARY OF ARGUMENTS

1. Whether the Respondent was negligent or not?

It is humbly submitted that a doctor owes certain duties to the patient 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 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 wit reasonable
degree of care. It is not necessary for every professional to exercise the highest level of
care, but he should exercise a reasonable amount of skill, care and caution.
A person is not liable if he has acted in accordance with a practice accepted as proper by
a responsible body of medical men skilled in that particular art.
It is also very important on the part of the medical professional to consider and have
knowledge about all the risks and side effects of a treatment that is given by him. He
would be held liable he has no knowledge about the risks of the treatment and it’s side
effects or has the knowledge about the risks and side effects involved but still chooses to
ignore them.
The respondent didn’t consider the side effects of Amikacin, which was given to the Mr.
Pradeep for urinary infection. The medicine caused the Appellant to suffer from deafness.
The doctor did not take into consideration the risk factor that was involved..The
respondant did not take reasonable care and was negligent. He did not take into
consideration the side effects of the medicine given and thus, was negligent which caused
the appellant to suffer from irreparable hearing loss and mental agony.

2. Whether the Respondent be liable to pay compensation?

It is humbly contended that the Respondent would be held liable for his negligent
behavior for the Appellant which caused a lot of sufferings to the Appellant and thus is
liable to pay compensation for the same.
It is humbly submitted that the compensation awarded by the national commission to the
Appellant is neither just nor fair. The Respondant’s negligent act caused irreparable
hearing loss and a lot of mental agony to the Appellant and should be paid compensation
for the same accordingly.
The respondant was negligent on his part which caused a lot of suffering to the Appellant.
.Compensation that is credible and fair should be paid to the appellant for irreparable
hearing loss and mental agony suffered by him due to the negligence of the respondent.
Due to the negligence of the respondent, the appellant suffered permanent deafness and
mental stress and agony. The Respondent, being a professional should have exercised

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reasonable care and caution because as a professional, he has a duty to care in deciding
what treatment to give and administer reasonable care in the administration of the
treatment.
This would not only effect his present but also his future. Permanent deafness has
impaired him from enjoying his life to the fullest. This impairment has caused a lot of
stress and depression to the Appellant. The Appellant should be awarded a compensation
of 50, 00,000 for the sufferings caused to him by the negligence of the respondent.

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 Memorial on behalf of Appellant

THE ARGUMENTS ADVANCED

ISSUE 1

Whether the Respondent was negligent or not?

In the law of negligence professionals like lawyers, doctors,etc. are required to possess some
special skill. It is humbly submitted that a doctor owes certain duties to the patient 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 skill would generally be admitted or undertaken to be
performed only if the person possesses the requisite skill for performing that task.
In the Apex Court in Jacob Mathew v. State of Punjab1, explained:
“Any reasonable man entering into a profession which requires a particular level of learning to
be called a professional of that branch, impliedly assures the person dealing with him that the
skill which he professes to possess shall be exercised and exercised wit reasonable degree of care
and caution. A professional may be held liable for negligence on one of the 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.”
The Hon’ble Court referred to the decision of Bolam v. Friern Hospital Management
Committee2, wherein Mc Nair, J. observed:
“Where you get a situation which involves the use of some special skill or competence,
then the test as to whether there has been negligence or not is not the test of the man on
the top of a Clapham omnibus, because he has not got this special skill. The test is the
standard of the ordinary skilled man excreting and professing to have that special
skill…..A man need not possess the highest expert skill; it is well established law that it is
sufficient if he exercise the ordinary skill of ordinary competent man exercising that
particular art.”
The Respondent, being a professional should have exercised reasonable care and caution because
as a professional, he has a duty to care in deciding what treatment to give and undertake
reasonable care in the administration of the treatment.

1
A.I.R. 2005 S.C. 3180.
2
[1957] 1 W.L.R. 582, 586.

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Also, the practitioner must be aware of all the risks and side effects of any treatment given. He
should be aware about the risks involved, various side effects of the treatment and take them
under consideration while giving any kind of treatment. If he ignores any such side effects or
risks, he is said to be negligent.
The Appellant here was given Amikacin, for severe urinary tract infection which was caused due
to the presence of Klebsiella species. Klebsiella species is only responsive to Amikacin and
Methenamine Mandelate. Methenamine Mandelate which cannot be used on patients suffering
from renal failure. And thus, the appellant was only injected with Amikacin for 3 days which
caused the Appellant to have slight tinnitus and thus, caused permanent hearing loss.
After a review of various authorities, Bingham L.J. in Eckersley v. Binnie3, summarized the
Bolam test in the following words:
From these general statements it follows that a professional man should command the corpus of
knowledge which forms part of the professional equipment of the ordinary member of his
profession. He should not lag behind other ordinary assiduous and intelligent members of his
profession in knowledge of new advances ,discoveries and developments in his field. He should
have such an awareness as an ordinarily competent practitioner would have of the deficiencies in
his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any
profession task he undertakes to the extent that the other competent members of the profession
would be alert. H e must bring to any professional task he undertakes no less expertise, skill and
care than other ordinary competent members of his profession would bring, but need bring no
more. The standard is that of the reasonable average. The law does not require of a professional
man that he be a paragon combining the qualities of polymath and prophet.
The respondent here did not consider the side effects of the medicine given which caused
permanent hearing loss and mental agony to the appellant. The Appellant suffered deafness and
mental stress due to the negligence of the Respondent.
The degree of skill and care required by a medical practitioner as explained in Halsbury’s Laws
of England4 is:
“The practitioner must bring to his task a reasonable degree of skill and knowledge,andmust
exercise a reasonable degree of care, neither the very highest nor a very low degree of care and
competence. A person is not liable if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular art.”
To establish liability on the basis of deviation from normal practice ,it must be shown :
 That there is a usual and normal practice;
 That the Respondent has not adopted it; and,
 That the course in fact adopted is one no professional man of ordinary skill would have
taken had he been acting with ordinary case.

3
[1988]18 Con. L.R.1,79.
4
Fourth Edition, Vol. 30, para 35.

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In Hucks and Cole5, medical professional would be held liable only where his conduct fell
below that of the standards of a reasonably competent practitioner.
The medical professional would be held liable if he gives any kind of treatment without
considering the side effects of that treatment or risks involved in such a treatment as stated in the
following cases;
In Juggankhan v. The State of M.P 6,the accused, a registered homeopathic administrated 24
drops stramonium and leaf of dhatura to the patient suffering from guinea warm. The accused
had not studied the affect of such substances being administrated to a human being, the
poisonous contents of believe of dhatura, however, were not satisfactorily established by the
prosecution . this court exonerated the accused of the charged under section 302, IPC . However,
on a finding that the stramonium and the dhatura leafs were poisonous and in no system of
medicine expect perhaps ayurvedic system, the dhatura leafs were given as cure for guinea warm
and the act of accused was held o be rashed and negligent act. In that background, the
interference of the accused being guilty of rash and negligent act as drown against him . the
court observed,’ in our opinion the principal which emerges is that the doctor who administers a
medicine known to or used in a particular branch of medical profession implied declares that he
has knowledge of that branch of science and if he does not, infact , posses that the knowledge ,
he prima facie acting with the rashness or negligence.
Similarly, in Poonam Verma v. Ashwin Patel and Ors7, a doctor registered as medical
practitioner and entitled to practice in Homeopathy only, prescribed an allopathic medicine to the
patient. As a result the patient died. The doctor was held to be negligent and liable to compensate
the wife of the deceased for the death of her husband. His conduct was amounted to negligence
per se actionable in civil law.
In Spring Meadown Hospital v. Harjot Ahluwalia8, the National Commission held that a nurse
of Spring Meadows Hospital gave a wrong injection to a child . While reading the prescription,
she made a mistake and injected ‘Lariago’ instead of ‘ Chloramphenicol’ intravenously. The
child collapsed instantly and went into Cardiac arrest. The national Commission held the
Hospital responsible for the acts and negligence attributed to the employees and liable for the
consequences.
As the respondent didn’t take reasonable care that was needed and gave a treatment without
considering the side effects of the treatment. The respondent should be held liable for for his
negligence that caused deafness along with mental stress to the appellant.
A doctor owes certain duties to the patient who consults him for illness. A deficiency in this
duty results in negligence. . A person is not liable if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men skilled in that particular art.

5
[1968] 118 New L.J. 469.
6
(1965) 1 SCR 14.
7
(1996) 4 S.C.C. 332.
8
I (1998) CPJ 1 (SC)

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 Memorial on behalf of Appellant

Any task which is undertaken to be performed with a special set of 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 wit
reasonable degree of care. It is not necessary for every professional to exercise the highest level
of care, but he should exercise a reasonable amount of skill, care and caution
It is also very important on the part of the medical professional to consider and have knowledge
about all the risks and side effects of a treatment that is given by him. He would be held liable he
has no knowledge about the risks of the treatment and it’s side effects or has the knowledge
about the risks and side effects involved but still chooses to ignore them.
The respondant didn’t consider the side effects of Amikacin, which was given to the Mr. Pradeep
for urinary infection. The doctor did not take into consideration the risk factor that was involved.
The respondant did not take reasonable care and was negligent which caused the appellant to
suffer from irreparable hearing loss and mental agony and thus, should be held liable for the
same.

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 Memorial on behalf of Appellant

ISSUE 2

Whether the Respondent be liable to pay compensation?

It is humbly contended that the Respondent would be held liable for his negligent behavior for
the Appellant which caused a lot of sufferings to the Appellant and thus is liable to pay
compensation for the same.
The Respondent didn’t take reasonable care that was needed. He should have administered the
treatment of the Appellant which he didn’t do.
When a medical practitioner attends to his patient, he owes him the following duties of care-
 A duty of care in deciding whelter to undertake the case ;
 A duty of care in deciding what treatment to give;
 A duty of care in the administration of the treatment.

A breach of any of the above mentioned duties gives a right of action for negligence to the
patient.
Neither did the Respondent that necessary care in deciding what treatment to give neither did he
fulfill his duty of care in the administration of the treatment. He gave the Appellant Amikacin
without considering it’s side effects and risks. Due to which the Appellant suffered permanent
deafness and was also caused a lot of mental sufferings and agony.
In the case of Dr. Lakshman Balkrishna Joshi v. Trimbak Bapu Godbole9, the professional
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 very low degree of care and complete judges in the
light of particular circumstances of each case is what the law requires. The doctor, no doubt , has
a discretion in choosing treatment which he proposes to give to the patient and such discretion is
relatively ampler in cases of emergency. In Juggankhan v. The State of Madhya Pradesh 10,the
accused , a registered homeopathic administrated 24 drops stramonium and leaf of dhatura to
the patient suffering from guinea warm. The accused had not studied the affect of such
substances being administrated to a human being . the poisonous contents of believe of dhatura,
however, were not satisfactorily established by the prosecution . this court exonerated the
accused of the charged under section 302, IPC . However , on a finding that the stramonium and
the dhatura leafs were poisonous and in no system of medicine expect perhaps ayurvedic system,
the dhatura leafs were given as cure for guinea warm and the act of accused was held o be rashed
and negligent act. In that background, the interference of the accused being guilty of rash and
negligent act as drown against him . the court observed,’ in our opinion the principal which
9
A.I.R. 1989 P. & H. 183, at 185
10
(1965) 1 SCR 14.

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emerges is that the doctor who administers a medicine known to or used in a particular branch of
medical profession 0Implied declares that he has knowledge of that branch of science and if he
does not, infact , posses that the knowledge , he prima facie acting with the rashness or
negligence.
The Respondent was negligent which caused a lot of sufferings to the Appellant. The
Respondent did not consider the side effects or risks that were involved in the treatment that was
given and thus, would be held liable.
In Indian Medical Association v. V.P. Shantha and Ors.11 , a three- judge bench of the Apex
Court, dealt with how a profession from an occupation, especially in the context of performance
of duties and hence the occurrence of negligence. The Court noticed that medical professionals
did not enjoy any immunity from being sued in contract or tort on the ground of negligence. By
holding sec. 14(1) (d) indicates that he compensation to be awarded is for the loss or injury
suffered by the consumer due to the negligence of the opposite party. A determination about
deficiency in service for the purpose of sec 2(1) (g) has, therefore, to be made by applying the
same as is applied in an action for damages for negligence. In the view of the definition of the
‘deficiency’ as contained in sec 2(1) (g), medical practitioners must be included within the ambit
of the Act and service rendered by them is covered under sec 2(1) (o).12
The court observed-
In the matter of professional negligence liability professions differ from occupations for the
reason that professionals operate in spheres where success cannot be achieved in every case and
very often success or failure depends upon factors beyond the professional man’s control. In
devising a rational approach to professional liability, the Court is to require that the professional
men should possess a certain minimum degree of complete and that they should exercise
reasonable care in the discharge of their duties. In general, a professional man owes to his client
a duty in their tort as well as in contract to exercise reasonable care in giving advice or
performing services .
In Achutrao Haribhau Khodwa And Ors.v state of Maharashtra And Ors13., a mop was left
inside the lady patient’s abdomen during an operation. Peritonitis developed which led to a
second surgery being performed on her, but she could not survive . Liability for negligence was
fastened on the surgeon . The doctorine of res ipsa loquitor was held applicable in the case like
this. The apex court., however, observed :’ in the very nature of medical profession skill differ
from doctor to doctor and more than one alternative course of treatment are available, all
admissible. Negligence cannot attributed to a doctor so long as he is performing his duty to the
best of his ability and with due care and caution merely because the doctor chooses one course of
action in preference of ejther one available, he would not be laible if the course of action chosen
by him is acceptable to the medical profession.

11
(1995) 6 S.C.C. 651.
12
The Consumer Protection Act,1986
13
(1996) 2 S.C.C. 634.

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In Smt. Soniya Bai Ramswaroop Morya v. Dr. Pramod Sharma 14 , the patient had been
suffering from hepatitis during stay in the hospital. This fact was not taken note of before surgery
was performed on his, which lead to deterioration in his condition. The report of the expert team
clearly indicated that there was negligence in the treatment of the patient and vital parameter
were not taken note of before performing appendectomy. It was also reported by one of member
of the team that patient was suffering from jaundice and when operation was done during
jaundice, the condition could become serious.
In view of the above facts, the M.P High court held the doctor of the hospital liable for medical
negligence in the treatment of the patient.
In Indian Medical Association v. V.P. Shantha and Ors.15 ,by holding sec. 14(1) (d) indicates
that he compensation to be awarded is for the loss or injury suffered by the consumer due to the
negligence of the opposite party . A determination about deficiency in service for the purpose of
sec 2(1) (g) has, therefore, to be made by applying the same as is applied in an action for
damages for negligence. In the view of the definition of the ‘deficiency’ as contained in sec 2(1)
(g), medical practitioners must be included within the ambit of the Act and service rendered by
them is covered under sec 2(1) (o).16
Thus, a patient aggrieved by any deficiency in treatment, from both private clinics and Govt.
Hospitals are entitled to damages under the Consumer Protection Act.
Due to the negligence of the doctor , the Appellant suffered from permanent deafness and was
caused a lot of mental agony and stress. The impairment caused due to the negligence of the
Appellant , would not only effect his present but, also his future.
In Kunal Saha v. Sukumar Mukhherjee17, Dr. Kunal Saha filed a complaint alleging medical
negligence leading to the death of his 36 years old wife, Smt. Anuradha Saha against Advanced
Medicare and Research Institute Ltd. , Calcutta.Dr. Sukumar Mukherjee, Dr. B. Haldar, DR.
Balram Prasad, Dr. Abhani Rai Chowdhary, DR. Kaushik Nandi. He also filed a complaint
against Beach Candy Hospital Doctor’s in Mumbai.
Saha’s came to India for holiday during April-May, 1998 from United State. Dr.Kunal Saha is a
research doctor doing research programme . she developed symptoms of rashes over her body
and received treatment from doctors and AMRI Hospital. She was out patient uptill 10-5-1998
and on 11-5-1998 she was admitted in AMRI on HIV /AIDS for the past 15 years. Anuradha was
a child psychologist and was pursuing PhD hospital till 16-5-1998. she was shifted to Beach
Candy Hospital, Mumbai on 17-5-1998 by an air ambulance and died on 28-5-1998
She suffered from Toxic Epidermal Necrolysis , which is a rare band deadly disease. The
incidence of TEN has been reported at 1 to 1.3 per million per year. The female male ratio is 3:2.

14
A.I.R. 2012 M.P. 21.
15
(1995) 6 S.C.C. 651.
16
The Consumer Protection Act, 1986
17
IV (2011) CPJ 414 (NC)

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TEN account for nearly 1 percent of drug reaction that require hospitalization. TEN has a
mortality rate of 25 to 70 %.
The complaint was initially dismissed by National Commission on the ground of that the
infection DPO Medrol prescribed by Dr. Mukherjee was not of such excessive dose. Dr. Kunal
Saha filled a case in the Supreme Court which held that the DPO Medrol is a long acting steroid
and not made for acute diseases like TEN and cannot be used twice a day. Supreme Court held
that there was medical negligence and remitted back to the National Commission only for the
purpose of determination of quantum of compensation. Beach Candy Hospital was also implied
because Anuradha was treated for 12 days and died in the hospital. The case was filed against the
Beach Candy Hospital complaining compensation of Rupees 25.30 crores which was dismissed
as withdrawn on 25-7-2003.
In Spring Meadown Hospital v. Harjot Ahluwalia18, the National Commission held that a
nurse of Spring Meadows Hospital gave a wrong injection to a child. While reading the
prescription, she made a mistake and injected ‘Lariago’ instead of ‘Chloramphenicol’
intravenously. The child collapsed instantly and went into Cardiac arrest. The national
Commission held the Hospital responsible for the acts and negligence attributed to the
employees and liable for the consequences. For the negligence, error and omission on the part of
the nurse as well as Dr. Dhananjay in rendering their professional service, the hospital was held
liable and made to pay for the consequences. The Commission determined the quantum of
compensation as Rs. 12,50, 000 to the minor patient and Rs. 5,00,000 compensation to the
parent for acute mental agony that had been caused to them with their only son being reduced to
a pathetic vegetative condition.
In State of Guj. v. Laxmiben Jayantilal Kikligar19, the Appellant was suffering discomfort and
pain in swallowing. He went to Civil Hospital, Godhra, for treatment and the Civil Surgeon
performed the surgery on her thyroid gland. After the operation she suffered permanent partial
paralysis of larynx as a consequence of damage to or cutting recurrent laryingal nerve. The Court
held that the surgeon was negligent as he did not take precaution before and during the surgery
and awarded damages amounting to Rs. 1, 20,000 along with interest @12% p.a. from the date of
the suit till realization.
Similarly, in case of M.L. Singhal v. Dr. Pradeep Mathur20, the Appellant’s wife suffered from
anemia and had problem in urinating, was admitted to Sri Ganga Ram Hospital, Delhi, under
treatment of Dr. Mathur. The patient developed bed sores and eventually died due to the
negligence of the hospital and was held liable to pay a compensation amounting Rs. 10,000to the
Appellant on account of mental torture suffered by him because of bad nursing.
The Appellant suffered from permanent deafness and was caused a lot of mental agony and
stress. The impairment caused due to the negligence of the Appellant, would not only effect his

18
I (1998) CPJ 1 (SC)
19
A.I.R. 2000 Guj. 180
20
AIR 1996 Del 261, ILR 1996 Del106

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present but, also his future. It would stop the Appellant from enjoying his life and should be
awarded compensation considering the same.
Along with mental agony and permanent deafness, the Respondents’s negligence also caused
depression to the Appellant.
The respondent was negligent on his part which caused a lot of suffering to the Appellant.
Compensation that is credible and fair should be paid to the appellant for irreparable hearing loss
and mental agony suffered by him due to the negligence of the respondant.The Appellant should
be awarded a compensation of 50,00,000 for the sufferings caused to him by the negligence of
the Respondant.
The Respondent would be held liable for his negligent behavior for the Appellant which caused a
lot of sufferings to the Appellant and thus is liable to pay compensation for the same. It is
humbly submitted that the compensation awarded by the national commission to the Appellant is
neither just nor fair. The Respondant’s negligent act caused irreparable hearing loss and a lot of
mental agony to the Appellant and should be paid compensation for the same accordingly. The
Respondant was negligent on his part which caused a lot of suffering to the Appellant.
Compensation that is credible and fair should be paid to the appellant for irreparable hearing loss
and mental agony suffered by him due to the negligence of the respondant.The Appellant should
be awarded a compensation of 50,00,000 for the sufferings caused to him by the negligence of
the respondents.

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 Memorial on behalf of Appellant

PRAYER

Wherefore, in the light of the facts presented, arguments advanced and authorities cited,
the appellant humbly submits that the Hon’ble Court be pleased to adjust and declare
that:

1. The decree should be passed in favor of the Appellant and recover for harm
caused by medical negligence by holding the Respondant liable for the damages
caused because of his negligent which caused the Appellant to suffer from
irreparable hearing loss and mental agony.

2. Pass any other order, which the court may deem fit in light of equity and good
conscience.

All of which is humbly prayed,

(Counsel on behalf of Appellant)

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