Prayer
Team Code: C 14- 22
Commonwealth Moot Court Competition, 2014
In the District Court at Kolkata
Tony Stanley...Claimantv.Dr. Sachin Pawar.1st DefendantAndDr.
Debjyoti Sarkar..2nd Defendant
Table of ContentsMemorial for Claimant
30
Table of ContentsTable of ContentsiiTable of
AuthoritiesvStatement of JurisdictionxiiStatement of
FactsxiiiSummary of PleadingsxviI.The Kolkata District Court has
Jurisdiction to Adjudicate this Dispute.xviPleadings1I. That the
Kolkata District Court has Jurisdiction to Adjudicate this
Dispute.1A. The Code of Civil Procedure allows the Jurisdiction of
Kolkata District Court.1B. International Conventions and Principles
recognize the Jurisdiction of Kolkata District Court.1II. That the
Defendants are Compositely Negligent in Carrying Out the Treatment
of the Claimants Wife.3A. Two or More Persons Have Carried out the
Treatment.3B. The Treatment has Been Negligently Carried Out.4i.
The defendants did not exercise ordinarily skill and care.4ii. The
established and accepted norms of medical practice have not been
followed.9iii. The damages are a direct consequence of the act of
the defendants.12III. The Liability of the Defendants cant be
Exempted through the Patient Undertaking cum Guideline
Document.13A. There is a Fundamental Breach of a Standard Form
Contract.13B. The Liability in Tort cannot be Exempted by a
Contractual Clause.14C. The Patient Undertaking cum Guideline
Document is against the Public Policy.15D. The Provision of 16 of
the Indian Contract Act is Attracted.16IV. The Liability of the
Defendants would not Mitigate as The Claimant was not
Negligent.18A. The Claimant had taken Reasonable Care for the
Safety of the Deceased.18B. The Negligence, even if Present, was
not Substantial.18C. The Claimant took the Safest Course of Action
in Light of the Dangerous Situation Caused By The Defendants.19V.
That There can be No Bar on the Claimant to Initiate a Legal
Proceedings in UK.21A. Difference in the Heads of Damages in
various Jurisdictions will Lead to Different Causes of Action.21i.
Ascertaining the heads of damages is a substantive issue.22ii. Non-
recognition of any head of damage leads of a separate cause of
action.22iii. Non- recognition of damages under the head of
bereavement in Indian law may lead to a separate cause of
action.23iv. The Principle of claim preclusion is inapplicable.23B.
Avoid any Chances of Delay in Grant of Relief from the Indian
Courts.24VI. That the Claimant is Entitled to Sue and Claim Damages
under Various Heads.25A. Entitlement to Recover Pecuniary
Damages.25i. Loss of income of the deceased leading to loss of
dependency.26ii. Costs in terms of expenses incurred on various
items.27B. Entitlement to Recover Non- Pecuniary Damages.27i. Pain
and Suffering of the Deceased.27ii. Loss of Consortium.28iii.
Mental and Emotional Distress of the Claimant.28C. Entitlement to
Recover Punitive Damages.29Prayer30
Table of Contents
Table of Authorities
StatutesCivil Jurisdiction and Judgments Act, 198223Code Civ.
Proc. 1908, No. 5 of 19081Fatal Accidents Act 1855, No.12 of
185525, 27Fatal Accidents Act, 197623, 28Indian Contracts Act 1872,
No. 9 of 187215, 16Legal Representatives Suits Act 1855, Act, No.12
of 185525, 26, 27Private International Law (Miscellaneous
Provisions) Act 199521
Indian CasesAkshoy Kumar Patil v. New India Assurance Co.,
A.I.R. 2007 Del. 13616Ashwani Kumar Mishra v. P. P.MuniamBabu, 1999
A.C.J. 110525, 27B.V. Nagaraju v. Oriental Insurance Co. Ltd,
(1996) 4 S.C.C. 64713, 14Chainatamano v. Surendranath, I.L.R.
(1956) Cut. 5874Chinnappa Reddy, J.; M.V. Elisabeth v.Harwan
Investment & Trading Pvt. Ltd., Goa, [1992] 1 S.C.R.
10032Company of India Ltd. v.BirendraBahadurPandey, 1984 (2) E.C.C.
1422DevkiNandan v. GokliBai, (1886) 7 Punj. L.R. 32516Dr. Balram
Prasad v. Dr. KunalSaha and Ors.,(2014) 1 S.C.C. 38423Dr.
KusaldasPammandasv. State of Madhya Pradesh, A.I.R. 1960 M.P.
507Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 1284erma, J., M.V.
Mariner IV v.V.S.N.L.,1998 (5) Bom. C.R.
3122GhanshymdasBhagwandasv. State of Madhya Pradesh; 1977 A.C.J.
1827Gherulal v. MahadeodasMaiya, A.I.R. 1959 S.C. 78115Gramophone
Company of India Ltd. v.BirendraBahadurPandey, 1984 (2) E.C.C.
1422Indian and General Investment Trust Ltd. v. Sri
RamchandraMardarajaDeo, Raja of Khalikote, A.I.R. 1952 Cal.
50821Inland Water Transport Corporation Limited and
OrsvsBrojoNathGanguly and Ors,1986 AIR 157116Jacob Mathew v. State
of Punjab, (2005) 6 S.C.C. 14, 15, 16M.K. Usmankoya v. C.S. Santha,
AIR 2003 Ker 19116M.Siddalingappa v. T.Nataraj, A.I.R. 1970
Kant.15415M.V. Elisabeth v.Harwan Investment & Trading Pvt.
Ltd., Goa, [1992] 1 S.C.R. 10032Mahboob Khan v. Hakim Abdul Rahim,
A.I.R. 1964 Raj. 25016Malay Kumar Ganguly v. Dr. Sukumar Mukherjee
and Ors., A.I.R. 2010 S.C. 11627, 11Martin F. D'Souza v. Mohd.
Ishfaq, A.I.R. 2009 S.C. 20496Minor Marghesh K. Parikh v. Dr. Mayur
H. Mehta, A.I.R. 2011 S.C. 2497Municipal Corporation of Greater
Bombay v. LaxmanIyer, (2003) 8 S.C.C. 73118National Insurance Co.
Ltd. v. Indira Srivastava, (2008) 2 S.C.C.
76326PaschimBangaKhetMazdoorSamity v. State of West Bengal, (1996)
4 S.C.C. 3729PoonamVerma v. Ashwin Patel, A.I.R.1996
S.C.21115Pujamma v. G. Rajendra Naidu, A.I.R. 1988 Mad. 1094Pushpa
v. Shakuntla, (2011) 2 S.C.C. 24028R.S.Deebo v. M.V.Hindlekar,
A.I.R. 1995 Bom. 6815Rajesh and Ors. v. Rajvir Singh and Ors., 2013
(9) S.C.C.5428Ram Nivas v. State of Uttar Pradesh, 1968
Cri.L.J.6357Rani Gupta v. United India Insurance Company Ltd.,
(2009) 13 S.C.C. 49828Rattan Chand Hira Chand v. Askar Nawaz Jung,
(1991) 3 S.C.C. 6715Shiv Indersen Mirchandani of Bombay and Anr. v.
Natasha Harish Advaniand Ors., 2002 (2) Bom. C.R.
4362ShivrajVasantBhagwat v. Shevanta D Indulkar, 1997 A.C.J.
101414Smt. Satya v. ShriTeja Singh, A.I.R. 1975 S.C. 10521Spring
Meadows Hospital &Another v.HarjolAhluwalia&Anr.,(1998) 4
S.C.C. 397State of Haryana v. Santra, A.I.R. 2000 S.C. 18885Subbaya
v. Verayya (1935) M.W.N. 10433Sukumar Mukherjee and
BaidyanathHalder v. Malay Kumar Ganguly and Anr.,(2004) ILR 1 Cal
33228Sunil Sharma v. Bachitar Singh, (2011) 11 S.C.C. 42528T.O.
Anthony v. Karvarnan, (2008) 3 S.C.C. 7484Thomson-CSF v. National
Airport Authority of India, A.I.R. 1993 Del. 25215V. KishanRao v.
Nikhil Super Speciality Hospital, 2010 (5) S.C.R. 15Vidya Devi v.
Madhya Pradesh State Road Transport Corporation, A.I.R. 1975 M.P.
8918Vishakha v.State of Rajasthan, A.I.R. 1997 S.C. 30112
UK CasesAlexander v. Railway Executive, [1951] 2 All E.R.
44213Australian Commercial Research and Development Ltd. v.
A.N.Z.McCaughan Merchant Bank Ltd., [1989] 3 All E.R.
6524BeaumontThomas v. Blue Star Line Ltd., [1939] 3 All E.R.
12714Bernett v. Chelsea and Kensington Hospital Management
Committee, (1986) 1 All E.R. 108612Black v. Yates22Bolam v. Friern
Hospital Management Committee4, 5, 9Boy Andrews v. St. Roguvald,
(1947) 2 All E.R.(H.L.) 35019Chaplin v. Boys, [1971] A.C. 356
(H.L.)21, 22Chester v. Afshar (2002) 3 All E.R. 5525Edmunds v.
Simmonds [2001] 1 W.L.R. 100322G. H. Renton, Ltd. v. Palmyra
Trading Corporation of Panama, [1957] A.C.(H.L.) 14914Hamlyn &
Co v.Talisker Distillery, (1894) 21 R (H.L.)2121Harding v.
Wealands, [2006] UKHL 3222Hume v. Oldakre, 171 E.R. 4943Petrie v.
Lamont, (1842) C. Marsh. 934Robinson v. The Post Office, (1974) 2
All E.R. 73712S Parks v. Edward Ash Ltd., (1943) 1 K.B.
22318Sidaway v. Board of Governors of the Bethlem Royal Hospital
and the Maudsley Hospital,[1985] A.C. (H.L.) 87117Slater v. Baker,
95 E.R. 8604Swadling v. Cooper, (1931) A.C. (H.L.) 118Thake v.
Maurice (1986) 1 All E.R. 4975Thompson v. London County Council,
(1899) 1 Q.B. 8403White v. John Warwick & Co Ltd, [1953] 2 All
ER 1021.14Whitehouse v. Jordan, (1981) 1 All E.R. 2679
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(Scot.)10Bisso v. Inland Waterways Corporation, 349 U.S. 85
(1955)15California Powder Works v. Atlantic &Pacific R.R. Co.,
113 Ca. 329, 336, 45 Pac15Chaplin v. Hawes, (1828) 3 C. & P.
55419Fox v. Health Net, Riverside Sup Ct Case No. 219692
(1993)10Huber v. Steiner, (1835) 2 Bing. N.C. 20221In Re Fulds
Estate (No. 3),[1966] 2 W.L.R. 71721Jackson v Power 743 P.2d 1376
(Alaska 1987)9Karsales (Harrow) Ltd. v. Wallis, [1956] 1 W.L.R.
93614Kuhl v. Lincoln Nat'l Health Plan of Kansas City, Inc., 999 F.
2d 298 (8th Cir. 1993)10Landgraf v. USI Film Prods, 511 U.S. 244
(1994)29Lanphier v. Phipos, (1838) 8 C. & P. 4754Mostyn v.
Fabrigas, 1 Cowp. 16122Pappas v. Asbel, 675 A.2d 711, 713 (Pa.
1996)10SmeatonHanscombe v. Sassoon I.Setty, (1953) 1 W.L.R.
146814Smith v. The London and S.W. Railway Company, (1870-71) L.R.
6 C.P. 1412Spurling Ltd. v. Bradshaw, [1956] 1 W.L.R.
46113Waterhouse v. Australian Broadcasting Corp., (1989) 86
A.C.T.R. 1 (Australia)22Welch v. Epstein 536 S.E. 2d 408
(2000)29Williams v. Health America 41 Ohio App. 3d 245 (1987)9Wood
v. Thurston, 1953 C.L.C. 68715
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328 (1953)13Janeen M. Carruthers, Substance and Procedure in The
Conflict of Laws: A Continuing Debate in Relation to Damages, 53
(3) The International and Comparative Law Quarterly 691, 692
(2004)21Jean Revuzet al.,Treatment of toxic epidermal necrolysis:
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syndrome and toxic epidermal Necrolysis, 20 Journal of Pakistan
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Stephen K Jones et al, Dermatology, Royal College of Physicians
2013, p.81, available at www.rcplondon.ac.uk/dermatology10P.H.
Halebianet al.,Improved burn center survival of patients with toxic
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Table of Authorities
Statement of Jurisdiction
The claimant has submitted this dispute to this Honble Court,
invoking its jurisdiction under 9 read with 19 of the Code of Civil
Procedure 1908, read with 1, Legal Representatives Suits Act 1855
and 1A Fatal Accidents Act, 1855, which, inter alia, confers upon
this Court the power to try all civil suits, the value of which
satisfies the pecuniary jurisdiction of this Court.The plaintiff
humbly submits to the jurisdiction of this Honble Court and shall
accept any judgment of this Court as final and binding and shall
execute them in its entirety and in good faith.
Statement of Jurisdiction
Statement of Facts
I. parties to the petition
The appellants in this case are Mr. Tony Stanley who is based in
UK and had come to India on a holiday. The collective respondents
in this case are Dr. Sachin Pawar and Dr. Debjyoti Sarkar, medical
practitioners based in Kolkata.
II. sequence of events
Mr. Tony Stanley and his wife Sharon Stanley, a UK based couple
came to India in February 2014 for a period of one month.
Thereafter, Mrs. Sharon Stanley began contracting acute pain, fever
and rashes.
Initial treatment given to Mrs. Sharon Stanley by Dr Sachin
PawarMr. Tony Stanley and his wife Sharon Stanley obtained the
services of Dr. Sachin Pawar, a doctor at Green Meadows Diagnostic
Centre at Kolkata on 7th February 2014. Dr. Sachin Pawar, upon
examination started administration of a steroid called Depomedrol
of which 80 mg he administered straightaway and prescribed two
injections of the same for 3 days. The maximum dosage recommended
for the said drug for any clinical condition however, is only
40-120 mg at a minimum of 1-2 weeks between such consecutive
doses.
Treatment given to Mrs Sharon Stanley at VasantechWhen Sharon
Stanleys health showed no improvement, she was admitted to a
hospital, namely Vasantech Hospital, on 11th February. The hospital
has been earlier shut down on account of negligence that caused a
fire killing 93 people that included mostly patients and
nurses.
Sharon Stanley and Tony Stanley were made to sign a document
called Patient Undertaking and Guideline Document, a standard
document that gives a detailed account of essential clinical
procedures which Vasantech Hospitals undertakes, for evaluation.
Also contained in the document, are illustrations of
self-management techniques in cases of medical emergencies. All
doctors as well as staff at Vasantech Hospitals are bound by
Patient Undertaking cum Guideline Document. This document regulates
all the doctors and staff, and the terms state that the patient
takes responsibility for risks associated with the medical
procedure.
In lieu of the Patient Undertaking cum Guideline Document,
another steroid called Prednisolone was administered to Sharon (in
a tapering dose) which was in continuance with treatment for
allergic vasculitis which leads to inflammation and damage to blood
vessels. Meanwhile, Sachin Pawar had to leave for USA on a
pre-arranged visit, he left Sharon in care of a dermatologist named
Dr. Debjyoti Sarkar.
Treatment by Dr. Debjyoti Sarkar and subsequent death of Mrs.
Sharon Stanley.Dr. Debjyoti Sarkar diagnosed Sharons condition as
Toxic Epidermal Necrolysis (hereinafter TEN) but did not make any
drastic change in treatment already being given. TEN is a rare
disease caused by reaction to drugs which leads to detachment of
upper layer of skin from the lower, all over the body.When no
improvement was apparent, she was taken to BIIMS Health Hospital in
Gurgaon where she died on 28th February 2014.
Suit by Mr. Tony Stanley against Dr. Sachin Pawar and Dr.
Debjyoti SarkarMr. Tony Stanley has sued Dr. Sachin Pawar and Dr.
Debjyoti Sarkar (collectively respondents) for contributory medical
negligence in the District Court, Kolkata, India. He further
intends to sue the respondents before County Court, Birmingham, UK
as well. The Respondents has refuted the claims made by the
claimant and state that, they had adopted the requisite standard of
care in handling the patient and administration of the treatment in
terms of the Patient Undertaking cum Guideline Document.
Hence the present suit.
Statement of Facts
Summary of Pleadings
I. The Kolkata District Court has Jurisdiction to Adjudicate
this Dispute.District Court in Kolkata has the authority to
adjudicate this civil dispute. To establish this, the claimant has
submitted a two-fold argument: (A) That the Code of Civil Procedure
1908 provides for the jurisdiction of the Kolkata District Court,
and (B) that the International Conventions and Principles recognize
the jurisdiction of the Kolkata District Court.
II. The Defendants are Compositely Negligent In Carrying Out The
Treatment of the Claimants wife.The defendants are compositely
negligent in carrying out the treatment of the claimants wife. To
establish this, the claimant has submitted a two-fold argument: (A)
That two or more persons have carried out the treatment, as the 1st
defendant was involved in carrying out the initial treatment and
the 2nd defendant continued the treatment before the claimants wife
was shifted from Kolkata to Gurgaon, and (B) that the treatment was
negligently carried out as the defendants did not exercise ordinary
skill and care and follow the established and accepted norms of
medical practice. Moreover, the damages were a direct consequence
of the act of the defendants.
III. The Liability Of The Defendants Cannot Be Exempted Through
The Patient Undertaking Cum Guideline Document.The Patient
Undertaking cum Guideline Document cannot exempt the liability of
the defendants. To establish this, the claimant has submitted a
four-fold argument: (A) That there is a fundamental breach of a
Standard Form Contract as it exempts the doctors from the core
obligation of safe and medically recognized treatment to the
patients, (B) that the liability in tort cannot be exempted by a
contractual clause and the duty of care to the patient arises out
of tort law and not a contractual stipulation, (C) that the Patient
Undertaking cum Document is against the public policy as it entails
the features of an unconscionable contract, and (D) that the
provisions of section 16 of the Indian Contract Act is applicable
as the exemption clause is clearly symbolic of an unfair advantage
that the doctors and staff of Vasantech Hospital had over the
patients.
IV. The Liability of the Defendants would not Mitigate as the
Claimant was not Negligent.There is absence of contributory
negligence on part of the defendants. To establish this, the
claimant has submitted a three-fold argument: (A) That the claimant
did not fail to take reasonable care of the safety of the deceased
as the movement of the plaintiff from Kolkata to Gurgaon was as per
reasonable medical prudence, (B) that in arguendo, even if there
was negligence, it was not substantial as the disease of the wife
of the claimant has already aggravated before the claimants wife
was moved from Kolkata to Delhi, and (C) that the plaintiff took
the safest course of action in light of the dangerous situation
created by the defendants as the safest course of action was to
move the claimants wife to another medical facility so that her
ailment could be cured.
V. That There is no Bar on the Claimant to Initiate Legal
Proceedings in UK.The claimant is entitled to sue the defendants in
the Birmingham County Court. To establish this, the claimant
submits a two-fold argument: (A) That recovering damages on those
heads which are not allowed by the Indian substantive law, but are
allowed by the UK law would lead to a different cause of action,
and (B) The claimant can initiate legal proceedings in the UK to
avoid any chances of delay in granting of relief from the Indian
Courts.
VI. That the Claimant is Entitled to Sue and Claim Damages under
Various Heads.The claimant is entitled to sue and claim damages
under various heads. To establish this, the claimant submits a
three-fold argument: (A) That the claimant is entitled to recover
pecuniary damages, (B) that the complainant is entitled to recover
non-pecuniary damages, and (C) the claimant is entitled to recover
punitive damages.
Summary of Pleadings
PleadingsI. That the Kolkata District Court has Jurisdiction to
Adjudicate this Dispute.1. It is submitted that the District Court
in Kolkata has the authority to adjudicate this civil dispute
because [A] the Code of Civil Procedure 1908 provides for the
jurisdiction of the Kolkata District Court, and [B] the
International Conventions and Principles recognize the Jurisdiction
of the Kolkata District Court.A. The Code of Civil Procedure allows
the Jurisdiction of Kolkata District Court.2. The Code of Civil
Procedure mandates that a suit for compensation for wrong done to a
person may be instituted in the Court in whose local limits the
wrong has taken place.[footnoteRef:2] It also allows an option to a
party to sue at the Court in whose territoriality the defendant
resides or works for personal gain.[footnoteRef:3] [2: Code Civ.
Proc. 1908, No. 5 of 1908, 19. (India Code)] [3: Id.]
3. In the present case, the alleged wrong of negligently
treating the claimants wife has been committed in the territory of
Kolkata and moreover, the defendants reside and work for
professional gain at this territory only.[footnoteRef:4] [4: Moot
Court Problem, 2, 6.]
B. International Conventions and Principles recognize the
Jurisdiction of Kolkata District Court.4. It is a settled law that
the national Courts will endorse rules of International law,
provided they do not conflict with national laws,[footnoteRef:5] so
much so that even if India is not a signatory to a convention,
still the Courts can rely on these international
conventions.[footnoteRef:6] [5: Gramophone Company of India Ltd.
v.Birendra Bahadur Pandey, 1984 (2) E.C.C. 142; M.V. Elisabeth
v.Harwan Investment & Trading Pvt. Ltd., Goa, [1992] 1 S.C.R.
1003;Vishakha v.State of Rajasthan, A.I.R. 1997 S.C. 3011.] [6:
Shiv Indersen Mirchandani of Bombay and Anr. v. Natasha Harish
Advaniand Ors., 2002 (2) Bom. C.R. 436. (citing See Gramophone
Company of India Ltd., 1984 (2) E.C.C. 142; See M.V. Elisabeth,
[1992] 1 S.C.R. 1003; See Vishakha, A.I.R. 1997 S.C. 3011; M.V.
Mariner IV v.V.S.N.L.,1998 (5) Bom. C.R. 312.)]
5. Therefore, the Court can rely on the UNIDROIT Principles of
Transnational Civil Procedure that provide that the Court can
exercise jurisdiction over a party when there is a substantial
connection between the forum state and the party or the transaction
or occurrence in dispute.[footnoteRef:7]A substantial connection is
said to exist when a significant part of the transaction or
occurrence has occurred in the forum state.[footnoteRef:8] [7:
UNIDROIT Principles of Transnational Civil Procedure, art. 2.1.2
(2004) [hereinafter UNIDROIT].] [8: Id.]
6. Similar reliance can be placed on the Hague Convention on the
Recognition and Enforcement of Foreign Judgments,[footnoteRef:9]
which also considers the jurisdiction of the Court in whose
jurisdiction the facts, which occasioned the damage occurred. [9:
Hague Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matter, art. 10 (4) (1971).]
7. In the present case, Kolkata is the place with substantial
connection to the occurrence in dispute and is the place where the
alleged damage has occurred. Therefore, it is submitted that the
present Court has jurisdiction to adjudicate on this matter.
II. That the Defendants are Compositely Negligent in Carrying
Out the Treatment of the Claimants Wife.8. It is submitted that the
defendants are compositely negligent for carrying out the treatment
of claimants wife as, [A] two or more persons have carried out the
treatment; and [B] the treatment has been negligently carried
out.A. Two or More Persons Have Carried out the Treatment.9.
Composite negligence refers to the negligence on part of two or
more persons.[footnoteRef:10] Thus, the person needs to be injured
as a result of the negligence on part of two or more
wrongdoers.[footnoteRef:11] All persons who aid, or counsel, or
direct or join in the committal of a wrongful act, i.e. negligence
would be party to the composite negligence.[footnoteRef:12] [10:
T.O. Anthony v. Karvarnan, (2008) 3 S.C.C. 748.] [11: Id.] [12:
Thompson v. London County Council, (1899) 1 Q.B. 840.]
10. When persons, not acting in concert, by their wrongful acts,
commit substantially contemporaneously, cause damage to another
person, they attract the liability of several
tort-feasors.[footnoteRef:13] Moreover, the tort-feasors cannot
insist on having others joined as defendants.[footnoteRef:14] The
mere omission to sue some will not disentitle the plaintiff from
claiming full relief against those who are sued.[footnoteRef:15]
[13: Hume v. Oldakre, 171 E.R. 494.] [14: Subbaya v. Verayya (1935)
M.W.N. 1043.] [15: Id.]
11. It is submitted that in the present case, both the
defendants were involved in carrying out the treatment of the
claimants wife. While the 1st defendant was involved in carrying
out the initial treatment, the 2nd defendant continued the
treatment before the claimants wife was shifted from Kolkata to a
Gurgaon Hospital.B. The Treatment has Been Negligently Carried
Out.12. An injury accruing[footnoteRef:16] to a party as a result
of the wrongful act of two or more tort-feasors forms the essential
and intrinsic part of composite negligence.[footnoteRef:17] Thus
the causation of an injury as a result of the negligence forms the
essential component of composite negligence.[footnoteRef:18] [16:
Chainatamano v. Surendranath, I.L.R. (1956) Cut. 587.] [17: Petrie
v. Lamont, (1842) C. Marsh. 93 (Eng.)] [18: See T.O. Anthony,
(2008) 3 S.C.C. 748; Pujamma v. G. Rajendra Naidu, A.I.R. 1988 Mad.
109.]
113. It is submitted that the injury caused to the claimants
wife and claimant was due to the negligence of the defendants in
the treatment of claimants wife, which can be adjudged from the
facts of the case that: ordinary skills and care were not exercised
(i); established and accepted norms of the medical profession were
not followed (ii);and the subsequent damages caused are a direct
consequence of the act of the defendants and were not
remote(iii).i. The defendants did not exercise ordinarily skill and
care.14. The case of Bolam v. Friern Hospital Management
Committee[footnoteRef:19] had clearly established the fact that the
test for medical professionals is the test of an ordinary skilled
man exercising and professing to have that ordinary skill. [19:
(1957) 2 All E.R. 118.]
15. A doctor needs to ensure reasonable degree of care and
caution while carrying out the treatment of a
patient.[footnoteRef:20] Moreover, the treatment of a doctor has to
be judged in light of the circumstances of the each
case.[footnoteRef:21] It is incumbent upon the medical professional
to bring a fair, reasonable and competent degree of skill while
carrying out a medical treatment.[footnoteRef:22] [20: Jacob Mathew
v. State of Punjab, (2005) 6 S.C.C. 1.] [21: Dr. Laxman v. Dr.
Trimbak, A.I.R. 1969 S.C. 128.] [22: Lanphier v. Phipos, (1838) 8
C. & P. 475; Slater v. Baker, 95 E.R. 860.]
16. It is submitted that the defendants did not exercise
ordinary care and skills as improper diagnosis had been carried out
by the 1st defendant (i-a); and the medication prescribed by the
defendants was not in consonance with established medical practice
(i-b).(i-a) The diagnosis performed by the 1st defendant was
grossly and blatantly against the fundamentals of medical
sciences.17. It is submitted that a doctor, when consulted by the
patient, owes the patient certain duties and a duty of care in
deciding what treatment to give is one of them.[footnoteRef:23] It
is the duty of a medical professional to examine a patient closely
and accurately diagnose the ailment of the
patient.[footnoteRef:24]A doctor would be held liable for not
applying with reasonable competence the medical skills of which
he/she is possessed.[footnoteRef:25] [23: Poonam Verma v. Ashwin
Patel, A.I.R.1996 S.C.2111; State of Haryana v. Santra, A.I.R. 2000
S.C. 1888.] [24: Wood v. Thurston, 1953 C.L.C. 6871 (cited in V.
Kishan Rao v. Nikhil Super Specialty Hospital, 2010 (5) S.C.R. 1).]
[25: See Bolam, (1957) 2 All E.R. 118.]
18. The diagnosis should appear reasonable in light of the
circumstances of the case.[footnoteRef:26] Moreover, the inherent
risks associated with every treatment needs to be kept in mind at
the time of diagnosis.[footnoteRef:27] [26: Chester v. Afshar,
(2002) 3 All E.R. 552.] [27: Thake v. Maurice, (1986) 1 All E.R.
497.]
19. The claimants wife had complained of acute fever, rashes and
pain when she approached the 1st defendant for
treatment.[footnoteRef:28] [28: Moot Court Problem, 1.]
20. Initial symptoms of Toxic Epidermal Necrolysis (TEN) include
pain and fever along with stinging eyes.[footnoteRef:29] The
patient might also experience chest pain, joint pain, nausea and
vomiting.[footnoteRef:30] The prodrome typically lasts from 1 day
to 3 weeks.[footnoteRef:31] The acute phase however consists of
persistent fever and burning and painful skin rash.[footnoteRef:32]
When the rash appears, it may be over large and varied parts of the
body and it is usually warm and appears red.[footnoteRef:33] An
analysis of the skin biopsy would show typical full thickness
epidermal necrolysis due to keratinocyte apoptosis.[footnoteRef:34]
This clearly differentiates it from any other form of skin disease,
especially allergic vasculitis. Apparent indications such as these
that point towards a particular ailment need to be taken note of
and analysed in depth.[footnoteRef:35] [29: Thomas Harr & Lars
E French, Toxic Epidermal Necrolysis and Stevens-Johnson Syndrome,
5 Orphanet Journal of Rare diseases 1, 2 (2010).] [30: Anne Lee,
Adverse Drug Reactions 140 (2005).] [31: Toxic Epidermal
Necrolysis, (Oct 10, 2014, 9:30 PM),
www.emedicine.medscape.com/article/229698-overview.] [32: Prashant
Tiwari et al., Toxic epidermal necrolysis: an update, 3 (2) Asian
Pacific Journal of Tropical Disease 85, 86 (2013).] [33: Id.] [34:
Thomas Harr & Lars E French, supra note 28.] [35: Coakley v.
Dr. Rosie, (2014) E.W.H.C. 1290.]
21. As for any other organ, diagnosis of skin disease involves
history, examination and additional tests, if required. The
diagnosis does not just involve taking a quick look at the
patient.[footnoteRef:36] The skin reactions needs to be analysed
closely as they render instant diagnosis in certain cases or
atleast a diagnotic label which could be attributed to a certain
disease depending on the visual signs.[footnoteRef:37] [36: N.H.
Cox & I.H. Coulson, Diagnosis of skin diseases, in the 1 Rookss
Textbook of Dermatology 5.2 (Tony Burns et al. eds., 2010).] [37:
Anne Lee, Adverse Drug Reactions 128 (2005).]
22. It is submitted that the 1st defendant did not examine the
claimants wife closely and accurately and thus, breached the duty
of care to diagnose the patient correctly. The incorrect diagnosis
of allergic vascultis had led to the huge deterioration in the
health of the patient and thus, the 1st defendant is liable for
negligent diagnosis.(i-b) The medication prescribed by the
defendants was not in consonance with the established medical
practice.23. It is submitted that the administration of any
medication needs to be done in accordance with the established
medical principles.[footnoteRef:38]If the medical professional is
ignorant of the science of medicine while prescribing the
medication and its dosage, then a prima facie case of negligence
builds upon the doctor.[footnoteRef:39] Using or prescribing a
wrong drug or injection, which proves to be detrimental for the
patient, would bring the doctor within the ambit of medical
liability.[footnoteRef:40] [38: Martin F. D'Souza v. Mohd. Ishfaq,
A.I.R. 2009 S.C. 2049.] [39: Dr. Kusaldas Pammandas v. State of
Madhya Pradesh, A.I.R. 1960 M.P. 50; Minor Marghesh K. Parikh v.
Dr. Mayur H. Mehta, A.I.R. 2011 S.C. 249.] [40: Spring Meadows
Hospital & Another v.Harjol Ahluwalia & Anr.,(1998) 4
S.C.C. 39, Ram Nivas v. State of Uttar Pradesh, 1968 Cri.L.J.635;
Ghanshymdas Bhagwandas v. State of Madhya Pradesh; 1977 A.C.J.
182.]
24. The claimants wife was administered 80 mg of Depomedrol
straightway and prescribed two injections daily for three days from
7th Feb., while the maximum recommended dosage of the drug is
within the range of 40-120 mg, and that too at a minimum interval
of 1-2 weeks between such doses.[footnoteRef:41] [41: Moot Court
Problem, 2, 3.]
25. Depomedrol (methylprednisolone) is an anti-inflammatory
steroid.[footnoteRef:42] Corticosteroids are double-edged weapons,
insofar as they can have beneficial as well as huge untoward
effects such as immunosuppression.[footnoteRef:43] As per Jean
Edouard Revoz and Jean Claude Rojuz, whose expertise is accepted
world over, corticosteroids are more dangerous than useful in
disorders such as TEN as they increase the risk of death from
infections.[footnoteRef:44] Moreover, the dosage should only be
from 80-120 mg per day and should be tapered quickly and cautiously
so as to avoid any untoward incident.[footnoteRef:45] [42:
Depomedrol Datasheet, (Oct 5, 2014, 8
AM),www.medsafe.govt.nz/profs/datasheet/d/depomedolinj.pdf.] [43:
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors., A.I.R. 2010
S.C. 1162. ] [44: Prof. J.E. Revuz & J.C. Rojeau, Cutaneous
Medicine and Surgery (cited in Malay Kumar Ganguly, supra note
42).] [45: 2 Lowell A. Goldsmith et al., Fitzpatrcicks Dermatology
in General Medicine 649 (8th ed. 2012).]
26. Prednisolone is a corticosteroid that has anti-inflammatory
and mineralocorticoid properties.[footnoteRef:46] The steroidal
qualities of prednisolone make it as unfit for the treatment of TEN
as Depomedrol.[footnoteRef:47] The people who receive
corticosteroid are generally at a worse off position than those who
do not use such steroids for the purpose for TEN.[footnoteRef:48]
The patients using such steroids are prone to more complications
and a longer hospital stay.[footnoteRef:49] [46: Prednisolone
Datasheet, (Oct 5, 2014,
8:45),www.medsafe.govt.nz/profs/datasheet/d/prednisonetab.pdf] [47:
P.H. Halebianet al.,Improved burn center survival of patients with
toxic epidermal necrolysis managed without corticosteroids,204 (5)
Annals of Surgery503, 512(1986).] [48: Jean Revuzet et al.,
Treatment of toxic epidermal necrolysis: Creteils experience, 123
(9) Arch. Dermatology 1156, 1157 (1987).] [49: L. French & C.
Prins, Erythema multiforme, Stevens-Johnson syndrome and toxic
epidermal necrolysis, 290 (J.L. Bolognia et al. eds., 2nd ed.
2008).]
27. Steroid used to be the standard treatment for TEN till the
1990s. However, the use of these steroids has become increasingly
disputable in light of the harmful effects that arise out of
them.[footnoteRef:50] Systematic steroids have become increasingly
dangerous for treatment of TEN owing to the increased chances of
mortality.[footnoteRef:51] Hence the use of antibiotics,
anticonvulsants and non-steroidal inflammatory drugs has become
preferable now.[footnoteRef:52] [50: Prashant Tiwari et al., supra
note 31.] [51: Nadia Ali Asfar et al., Role of systemic steroids in
the outcome of Stevens-Johnson syndrome and toxic epidermal
Necrolysis, 20 Journal of Pakistan Association of Dermatologists
158, 161 (2010)] [52: G. Gravante, D. Delogu et al, Toxic epidermal
necrolysis and Steven Johnson syndrome: 11-years experience and
outcome, European Review for Medical and Pharmacological Sciences
121 (2007).]
28. Even if steroids are to be given, they are to be only given
at the early stages of the disease along with proper
dosage.[footnoteRef:53] High dosage at the early stages can benefit
the patient if it is withdrawn at the appropriate
time.[footnoteRef:54] Continuing of the use of steroids, however,
could be quite detrimental for the patient.[footnoteRef:55] [53:
Crispian Scully & Jose Bagan, Oral mucosal diseases: erythema
multiforme,46 (2) Br. J. Oral Maxillofac Surg. 90, 94 (2008).] [54:
Sandipan Dhar, Systematic corticosteroids in toxic epidermal
necrolysis, 62 (4) Ind. J. Dermatology and Leprology 210, 270
(1996). ] [55: Depomedrol Datasheet, supra note 41.]
29. The risk of pneuomonia and septicemia also gets highly
increased by corticosteroids.[footnoteRef:56] They may even get
masked and may reach an advanced stage before being
recognized.[footnoteRef:57] [56: 2 Lowell A. Goldsmith et al.,
supra note 44 at 651; Prednisolone Datasheet, supra note 45.] [57:
Id.]
30. Therefore, it is submitted that the administration of
depomedrol in such high dosages by the 1st defendant was a grossly
negligent act when considered in light of the above facts.
Furthermore, the claimants wife was under the care of the 1st
defendant till it was transferred to the 2nd
defendant.[footnoteRef:58]It is submitted that the conduct of the
1st defendant, while in Vasantech, was regulated by the Patient
Undertaking Cum Guideline Document,[footnoteRef:59] in lieu of
which Prednisolone was administered under his
directions.[footnoteRef:60] Furthermore, the 2nd defendant even
after diagnosing the disease as TEN still continued with the same
medication.[footnoteRef:61] [58: Moot Court Problem, 6.] [59: Id.,
5.] [60: Id., 6.] [61: Id., 7.]
31. It is submitted that the defendants breached their ordinary
duty and care when administering Depomedrol and Prednisolone. Such
steroidal medication is highly advised against in cases of TEN and
thus their administration leads to imputation of negligence on the
defendants.ii. The established and accepted norms of medical
practice have not been followed.32. A medical professional needs to
act in accordance with the standards of a reasonably competent
medical man at all points in time.[footnoteRef:62] There are
certain accepted standards and the act of the medical professional
should be in consonance with such standards[footnoteRef:63]. [62:
See Bolam, (1957) 1 W.L.R. 582.] [63: Whitehouse v. Jordan, (1981)
1 All E.R. 267.]
33. It is submitted that the defendants did not act as per the
accepted norms of medical practice as the claimants wife was not
referred to a specialist at the outset of the treatment (ii-a), and
no supportive care was provided during the course of the treatment
(ii-b).(ii-a) Referral was not made to a specialist at the outset
of the treatment.34. It is submitted that absence of a timely
referral to a specialist would constitute negligence on part of the
medical professional.[footnoteRef:64] The failure to send a patient
to a specialist, when the situation mandates, would be a breach of
duty on part of the doctor and could lead to huge aggravation in
the condition of the patient.[footnoteRef:65] Thus, the physician
should not take the patient on an experimental basis and an
analysis with respect to the reference needs to be made
quickly.[footnoteRef:66] [64: Williams v. Health America 41 Ohio
App. 3d 245 (1987); Jackson v Power 743 P.2d 1376 (Alaska 1987).]
[65: Kuhl v. Lincoln Nat'l Health Plan of Kansas City, Inc., 999 F.
2d 298 (8th Cir. 1993).] [66: Fox v. Health Net, Riverside Sup. Ct.
Case No. 219692 (1993).]
35. Specialists concentrate on specific types of illnesses and
problems that affect specific tissues and organ systems in our
body.[footnoteRef:67] Dermatologists are the only experienced,
trained and accredited specialists in the diagnosis and management
of diseases of the skin, hair and nails in adults and
children.[footnoteRef:68] There are no others who can provide care
of an equal quality to that of dermatologists,[footnoteRef:69] in
terms of diagnosing and treating skin lesions.[footnoteRef:70] [67:
The Road to Becoming a Doctor, (Oct 6, 2014, 9:20 AM),
http://www.aamc.org/download/68806/data/road-doctor.pdf.] [68:
Royal College of Physicians: Dermatology, (Oct 23, 2014, 6 PM),
https://www.rcplondon.ac.uk/sites.default/files/dermatology.pdf.]
[69: Id.] [70: Luigi Naldi, The field and its boundaries, in the
Evidence Based Dermatology 3 (Hywel Williams et al. eds.,
2014).]
36. Unless the general practitioner has had special training in
dermatology he should not assume responsibility for the treatment
of such conditions.[footnoteRef:71] Moreover, a timely referral
needs to be made to the specialist.[footnoteRef:72] The decision to
make a referral depends on the analysis of how a reasonable general
practitioner would have acted in determining whether the person
should have been referred or not.[footnoteRef:73] [71: R. Schaffer,
Dermatology in General Practice, 74 S.A. Medical Journal 137, 139
(1958).] [72: Id.] [73: Bennett v. Coatbridge Health Centre, [2011]
C.S.O.H. 9 (Scot.); Pappas v. Asbel, 675 A.2d 711, 713 (Pa.
1996).]
37. It is submitted that the claimants wife was not referred to
a specialist at the onset of the disease in spite of the apparent
presence of severe symptoms of a skin disease. Moreover, her care
was handed over to the 1st defendant on the 12th Feb., when her
condition had deteriorated to a large extent. Therefore, the 1st
defendant was negligent due to delayed and untimely referral.(ii-b)
There was no supportive care to the claimants wife during the
course of the treatment.38. Supportive care becomes highly
important in cases of TEN. Huge amount of attention needs to be
paid to high-calorie and high-protein diet.[footnoteRef:74]
Symphonatic Treatment and antibacterial policy are other aspects of
supportive treatment that need to be adhered to.[footnoteRef:75]
Several litres of fluid per day are needed since fluid loss is
enormous in severe cases. The absence of substitution of these
fluids leads to important internal problems.[footnoteRef:76] [74: 2
Lowell A. Goldsmith et al., supra note 44, at 651; Malay Kumar
Ganguly, supra note 42.] [75: Prof. J.E. Revuz & J.C.
Rojeau,supranote 43.] [76: Gerard Pierard, Treatise on TEN (cited
in Malay Kumar Ganguly, supra note 42)]
39. Artificial ventiliation also needs to be provided in certain
cases.[footnoteRef:77] Conjunctivital involvement also becomes a
major problem. Thus eye care also constituted an important element
of the supportive care.[footnoteRef:78] Use of air- fluidized beds,
use of systemic antibiotic therapy for specific infections but not
for prophylaxis, topical antibiotic therapy is not used, meticulous
wound care and moist saline gauge dressing are applied once daily
when most of the involved epidermal surface has sloughed off etc.
are some of the other measures that need to be
taken.[footnoteRef:79] Thus, supportive case becomes an essential
part of the therapeutic approach for the prevention of
TEN.[footnoteRef:80] [77: Malay Kumar Ganguly, supra note 42.] [78:
Id.] [79: Id.] [80: J.C. Roujeau and R.S. Stern, Severe Adverse
Cutaneous Reactions to Drugs, 331 N. Engl. J. Med.1272, 1280
(1994).]
40. It is submitted that there was absence of any kind of
supportive therapy during the course of treatment. While the 1st
defendants wrong diagnosis initiated a totally different course of
treatment and supportive care could not be provided at that time,
the 2nd defendant even after rightly diagnosing the claimants wife
of TEN was patently negligent in not providing the supportive care,
which is the mainstay in treatment of TEN.iii. The damages are a
direct consequence of the act of the defendants.41. It is submitted
that for a tortious claim, the damage cause needs to be a direct
result of the act of the defendants.[footnoteRef:81] The negligence
of the medical professionals needs to be the cause of the damage
that has accrued to the patient.[footnoteRef:82]The but for test
becomes important in this regard, since it is to be analysed that
whether the damage would have accrued but for the negligence of the
defendant.[footnoteRef:83] [81: Ratanlal and Dhirajlal, The Law of
Torts 184 (G.P. Singh eds., 26th ed. 2013).] [82: Bernett v.
Chelsea and Kensington Hospital Management Committee, (1986) 1 All
E.R. 1086.] [83: Robinson v. The Post Office, (1974) 2 All E.R.
737.]
42. The defendants would in any casebe liable, if their wrongful
act has resulted in materially contributing to the
damage.[footnoteRef:84] The fact that other factors were also
present would not discharge the defendants of their
liability.[footnoteRef:85] The damages should, however, be such
that a reasonable man could have foreseen them.[footnoteRef:86]
[84: Ratanlal and Dhirajlal, supra note80, at 185.] [85: Id.] [86:
Smith v. The London and S.W. Railway Company, (1870-71) L.R. 6 C.P.
14.]
43. TEN is a serious adverse skin reaction that can be life
threatening.[footnoteRef:87] Complications such as sepsis can lead
to the mortality of the patient in TEN. Thus, in the present case
the damage accruing to the claimants wife was reasonably
foreseeable. Moreover, the disease could have been diagnosed,
treated and cured at an earlier stage, which was but for the
negligence of the defendants, could not be done. Thus, the death of
the claimants wife is a direct consequence of the acts and
omissions of the defendants. [87: Alan D. Widgerow, Toxic epidermal
necrolysis management issues and treatment options, 1Int. J.
Burnsand Trauma42, 47 (2011).]
III. The Liability of the Defendants cant be Exempted through
the Patient Undertaking cum Guideline Document.44. It is submitted
that the Patient Undertaking cum Guideline Document cannot exempt
the liability of the defendants as [A] there is a fundamental
breach of a standard form contract, [B] the liability in tort
cannot be exempted by a contractual clause, [C] the document is
against public policy, and [D] it attracts the provisions of 16 of
the Indian Contracts Act, 1872.A. There is a Fundamental Breach of
a Standard Form Contract.45. It is submitted that the standard form
contracts are those contracts where one of the parties habitually
makes contracts of the same type with other parties in a particular
form and allow little, if any, variation from that
form.[footnoteRef:88] These contracts entail standardization of the
package offered to customers, in much the same way, as is
standardization of a product.[footnoteRef:89] Due to the commercial
nature of the most of these contracts, less attention might be paid
to issues of contractual fairness.[footnoteRef:90] [88: H.B. Sales,
Standard Form Contracts, 16 (3) The Modern Law Review318, 328
(1953).] [89: Mark R. Patterson, Standardization of Standard Form
Contracts, 52 (2) William and Mary Law Review 328 (2010).] [90:
Id.]
46. There might be certain conditions in the standard form
contracts which if put into effect, would negate the main
contractual duty.[footnoteRef:91] Such contracts, in consequence,
become unenforceable, as a protection needs to be provided against
unreasonable consequences of wide and sweeping exemption
clauses.[footnoteRef:92] Moreover, every contract contains a core
or certain fundamental provisions,[footnoteRef:93]which if any
party fails to honor, will be held to be guilty of a breach of
contract irrespective of the fact that an exempting clause has been
inserted purporting to protect that party.[footnoteRef:94] [91:
Alexander v. Railway Executive, [1951] 2 All E.R. 442.] [92:
Spurling Ltd. v. Bradshaw, [1956] 1 W.L.R. 461.] [93: B.V. Nagaraju
v. Oriental Insurance Co. Ltd, (1996) 4 S.C.C. 647.] [94: Id.;
Smeaton Hanscombe v. Sassoon I.Setty, (1953) 1 W.L.R. 1468.]
47. Fundamental breach protects the interest of the weaker party
in the contract.[footnoteRef:95] An exemption clause of the
contract cannot allow a party to the contract to escape its
liability and be negligent in carrying out its duties with respect
to the contract.[footnoteRef:96] [95: Shivraj Vasant Bhagwat v.
Shevanta D. Indulkar, 1997 A.C.J. 1014.] [96: Beaumont Thomas v.
Blue Star Line Ltd., [1939] 3 All E.R. 127; Karsales (Harrow) Ltd.
v. Wallis, [1956] 1 W.L.R. 936; G. H. Renton, Ltd. v. Palmyra
Trading Corporation of Panama, [1957] A.C. (H.L.) 149 (appeal taken
from Eng.).]
48. It is submitted that the exemption clause of the Patient
Undertaking cum Guideline Document constituted a fundamental breach
of contract insofar it exempts the staff and doctors from all the
risks associated with the treatment of a patient. The document
entails a contract with the fundamental and core obligation being
provision of safe and medically recognized treatment to the
patients. The exemption clause of the document cannot be used by
the doctors and staff of the hospital to exempt themselves of this
core provision and thus a fundamental breach of contract has been
constituted.B. The Liability in Tort cannot be Exempted by a
Contractual Clause.49. It is submitted that tort duties are imposed
by law to protect the interest of society in freedom from various
kinds of harm.[footnoteRef:97] They are grounded basically upon
social policy and not upon the will or intention of the parties.
Therefore the duty of ordinary care, therefore, does not arise out
of the contract.[footnoteRef:98] [97: Robert A. Seligson,
Contractual Exemption for liability from negligence, 44 (1)
California Law Review 121, 128 (1956).] [98: Prosser et al., Torts
478 (Victor E. Schwartz et al. eds., 12 ed. 1955).]
50. The exemption clause is an incident of a contract. Thus the
exemption clause can exempt the defendants from their liability in
contract, however the exemption for the defendants does not cover
the ambit of torts.[footnoteRef:99] [99: White v. John Warwick
& Co Ltd, [1953] 2 All ER 1021.]
51. A medical professional owes a reasonable duty of care to the
patient while carrying out the treatment of the
patient.[footnoteRef:100] This duty of care is a duty arising out
of tort law and is not a contractual stipulation. Therefore the
duty of care of the defendants cannot be exempted through the
Patient Undertaking cum Guideline Document, insofar it is a
tortious claim. [100: See Jacob Mathew, (2005) 6 S.C.C. 1.]
C. The Patient Undertaking cum Guideline Document is against the
Public Policy.52. It is submitted that whenever a party relying
upon the exculpatory clause owes a duty of service to the public,
the contract is invalidated as being contrary to public
policy.[footnoteRef:101] Any clause that is contrary to the public
policy would be unenforceable as against the contracting
party.[footnoteRef:102] The protection against abridgment of public
policy is to discourage negligence by inflicting damages upon the
wrongdoers.[footnoteRef:103] Moreover, it also protects the
consumers of goods and services from harsh contracts being enforced
upon them.[footnoteRef:104] [101: California Powder Works v.
Atlantic &Pacific R.R. Co., 113 Ca. 329, 336, 45 Pac.] [102:
M.Siddalingappa v. T.Nataraj, A.I.R. 1970 Kant.154;R.S.Deebo v.
M.V.Hindlekar, A.I.R. 1995 Bom. 68.] [103: Bisso v. Inland
Waterways Corporation, 349 U.S. 85 (1955).] [104: Id.]
53. Public policy is a broad term allowing the Courts to refuse
the enforcement of a contract on the considerations of public
interest.[footnoteRef:105] The Court in pursuance of this might
relieve a party of the duty placed on it through an exemption
clause of a contract.[footnoteRef:106] Thus, an aspect of the
contract having tendency to injure public interest or public
welfare would be opposed to public policy and thus would be
unenforceable.[footnoteRef:107] [105: Thomson-CSF v. National
Airport Authority of India, A.I.R. 1993 Del. 252.] [106: Gherulal
v. Mahadeodas Maiya, A.I.R. 1959 S.C. 781.] [107: Rattan Chand Hira
Chand v. Askar Nawaz Jung, (1991) 3 S.C.C. 67.]
54. The Indian Contract Act 1872 explicitly prohibits the
enforcement of such agreements.[footnoteRef:108]Any consideration
or object that is opposed to public policy is prohibited by
it.[footnoteRef:109] Thus, an unconscionable contract would be
prevented from being enforced in the interests of the
public.[footnoteRef:110] [108: Indian Contracts Act 1872, No. 9 of
1872, 21.] [109: Id.] [110: Inland Water Transport Corporation
Limited and Ors. v. Brojo Nath Ganguly and Ors., A.I.R. 1986 S.C.
1571 (cited in M.K. Usmankoya v. C.S. Santha, AIR 2003 Ker
191).]
55. It is submitted that in the present case, the Patient
Undertaking cum Guideline Document entails the features of an
agreement opposed to public policy. A reasonable duty of care is an
essential feature that needs to be imbibed by the medical
practitioners in their functioning.[footnoteRef:111] Thus
contracting out of such duty would be against public policy and
would render the agreement unconscionable. [111: See Jacob Mathew,
(2005) 6 S.C.C. 1, See Bolam, (1957) 2 All E.R. 118.]
D. The Provision of 16 of the Indian Contract Act is
Attracted.56. It is submitted that a contract is said to be induced
by undue influence if the relationship between the parties is such
that one is able to dominate the will of the other party and uses
that position to obtain an unfair advantage.[footnoteRef:112] The
party in the superior position might prevail upon the other party
and induce the other party to enter into an unfair
agreement.[footnoteRef:113] Undue influence constraints free
agency, restricts the power of resistance and brings about the
submission of one party before the other.[footnoteRef:114] [112:
Indian Contracts Act 1872, supra note 107, 16.] [113: Akshoy Kumar
Patil v. New India Assurance Co., A.I.R. 2007 Del. 136.] [114:
Mahboob Khan v. Hakim Abdul Rahim, A.I.R. 1964 Raj. 250.]
57. A party can be said to dominate the will of the other party
when there is active trust and confidence between the parties or
the parties are not on an equal footing.[footnoteRef:115]Since, a
doctor is clearly on a higher footing that the patient in terms of
medical knowledge along with the expertise of the intricacies of
the medical profession,[footnoteRef:116] and the relationship of a
doctor and a patient is clearly that of trust and confidence,
wherein the patient puts his health and life in the doctors
hands,[footnoteRef:117] it is clear that doctors exercise influence
over the patients. [115: Devki Nandan v. Gokli Bai, (1886) 7 Punj.
L.R. 325.] [116: T.A. Faunce & S.N. Bolsin, Fiduciary
disclosure of medical mistakes: The duty to promptly notify
patients of adverse health care events, 12 Journal of Law and
Medicine 478, 480 (2005).] [117: Sidaway v. Board of Governors of
the Bethlem Royal Hospital and the Maudsley Hospital, [1985] A.C.
(H.L.) 871 (appeal taken from Eng.).]
58. It is submitted that the patient undertaking cum guideline
document would attract the provisions of 16 of the Indian Contract
Act, insofar the exemption clause is concerned as it is clearly
symbolic of an unfair advantage on part of the doctors and staff of
Vasantech Hospital over the patients, thereby rendering the
contract voidable at the option of the party over whom the unfair
advantage was exercised.
IV. The Liability of the Defendants would not Mitigate as The
Claimant was not Negligent.59. It is submitted that the liability
of the defendants would not be reduced as there is absence of
contributory negligence on part of the defendants as [A] the
claimant did not fail to take reasonable care of the safety of the
deceased;[B] in arguendo, even if the there was negligence, it was
not substantial; and [C] the claimant cannot be held liable for not
taking the safest course in light of the dangerous situation caused
by the defendants.A. The Claimant had taken Reasonable Care for the
Safety of the Deceased.60. If the plaintiff fails to take
reasonable care of his/her own safety, then the defence of
contributory negligence would be attracted.[footnoteRef:118] The
claimants or the deceaseds negligence should contribute in some
degree to the injury or death of the deceased.[footnoteRef:119]The
damages in such cases would get apportioned as per the contribution
of negligence by both the parties.[footnoteRef:120] [118: Municipal
Corporation of Greater Bombay v. Laxman Iyer, (2003) 8 S.C.C. 731.]
[119: S Parks v. Edward Ash Ltd., (1943) 1 K.B. 223 at 230.] [120:
Swadling v. Cooper, (1931) A.C. (H.L.) 1 (appeal taken from Eng.);
Vidya Devi v. Madhya Pradesh State Road Transport Corporation,
A.I.R. 1975 M.P. 89.]
61. It is submitted that in the present case, the claimant had
taken reasonable care for his wifes safety. He had sought medical
guidance at the outset of the disease and even took her from
Kolkata to Gurgaon in light of her deteriorating appalling
condition at Vasantech. The said movement was in pursuance of her
own safety as per reasonable medical prudence, thereby eliminating
the chance of any absence of reasonable care on her part.B. The
Negligence, even if Present, was not Substantial.62. For the
defence of contributory negligence to be attracted, it is necessary
that the negligence on part of the plaintiff was
substantial.[footnoteRef:121] The question, thus, in all cases is
not as to who had the last opportunity of avoiding the mischief,
but whose act caused the wrong.[footnoteRef:122] The act of the
plaintiff needs to make a substantial contribution to the damage
suffered by the plaintiff.[footnoteRef:123] [121: Id.] [122: Boy
Andrews v. St. Roguvald, (1947) 2 All E.R.(H.L.) 350 (appeal taken
from Scot.).] [123: Id.]
63. It is submitted that in the present case, the claimants wife
had to be moved, out of necessity, from Vasantech hospital in
Kolkata to BIMS hospital Gurgaon to seek for better medical
treatment owing to her rapidly depleting health condition. The
movement from Kolkata to Gurgaon even if considered negligence, did
not substantially contribute to the injury and damage to the
claimants wife, as the aggravation of TEN had already led to the
detaching of the upper layer of the skin from the lower layer of
the body, all of which was mainly the fault of the doctors at
Kolkata who were negligent in undertaking improper diagnosis and
giving inadequate treatment.C. The Claimant took the Safest Course
of Action in Light of the Dangerous Situation Caused By The
Defendants.64. It is submitted that when the creation of a
dangerous situation is ascribable to the negligent act of the
defendant, he is not to be excused from liability for the
consequent harm by reason of the fact that the endangered person
takes a course of action which turns out to not be the safest
one.[footnoteRef:124] [124: Ratanlal and Dhirajlal, supra note 80,
at 595.]
65. In such circumstances, the contributory negligence on the
part of the person injured is not made out unless he is shown to
have acted with less caution than any person of ordinary prudence
would have shown under the same trying condition.[footnoteRef:125]
[125: Chaplin v. Hawes, (1828) 3 C. & P. 554.]
66. In the present case, the dangerous situation was created by
the defendants owing to the negligent medical treatment that was
carried out by them. The safest course of action in that particular
situation was to shift the claimants wife to another medical
facility where her treatment could be carried out in a more
efficient manner. The course adopted was that of a person of
ordinary prudence and hence the defence of contributory negligence
does not get attracted in this particular situation.
V. That There can be No Bar on the Claimant to Initiate a Legal
Proceedings in UK.67. It is submitted that the claimant is entitled
to sue the defendants in the Birmingham County Court because[A]
recovering damages on those heads which are not allowed by the
Indian substantive law, but are allowed by the UK law would lead to
a different cause of action; and/or [B]to avoid any chances of
delay in granting of relief from the Indian Courts.A. Difference in
the Heads of Damages in various Jurisdictions will Lead to
Different Causes of Action.68. Before any proceeding begins in a
conflict of laws case, it is the task of the forum to characterize
an issue either as substantive or procedural.[footnoteRef:126]
While substance is broadly a matter of right,[footnoteRef:127]
procedure is broadly a matter of remedy[footnoteRef:128] in such
cases.[footnoteRef:129]Characterization of an issue on the basis of
Indian conflict of rules[footnoteRef:130] is crucial for the forum
deciding the case so as to ascertain the governing
law.[footnoteRef:131] [126: In Re Fulds Estate (No. 3), [1966] 2
W.L.R. 717 at 695 (Eng.); Hamlyn & Co v. Talisker Distillery,
(1894) 21 R (H.L.) 21 (appeal taken from Scot.); Janeen M.
Carruthers, Substance and Procedure in The Conflict of Laws: A
Continuing Debate in Relation to Damages, 53 (3) The International
and Comparative Law Quarterly 691, 692 (2004). See for instance,
9(1), Private International Law (Miscellaneous Provisions) Act
1995.] [127: WW Cook, Substance and Procedure in the Conflict of
Laws, 42 Yale L.J. 333, 334 (1933).] [128: Id.] [129: Janeen M.
Carruthers, supra note 125.] [130: Indian and General Investment
Trust Ltd. v. Sri Ramchandra Mardaraja Deo, Raja of Khalikote,
A.I.R. 1952 Cal. 508; Smt. Satya v. Shri Teja Singh, A.I.R. 1975
S.C. 105.] [131: Huber v. Steiner, (1835) 2 Bing. N.C. 202(cited in
1 Dicey et al., The Conflict Of Laws 177 (Lawrence Collins ed.,
14th ed. 2000); Chaplin v. Boys, [1971] A.C. 356 (H.L.) (appeal
taken from Eng.); G.C Cheshire et al., Cheshire and Norths Private
Institutional Law 67-8 (James Facwett ed., 13th ed. 1999).]
69.In this regard, it is submitted that if there is any
difference between the UK and Indian substantive law on the aspect
of recoverable heads of damages, then, such difference leads to
different causes of action. Ascertaining the heads of damages is a
substantive issue (i); consequently, if the Indian substantive law
does not recognize any particular head of damage which is
recognized in UK law, there would be a separate cause of
action(ii).Hence, the principle of claim preclusion would be
inapplicable(iii).i. Ascertaining the heads of damages is a
substantive issue.70. The common law classifies recoverable heads
of damages as an issue of substantive law.[footnoteRef:132] [132:
Chaplin v. Boys, [1971] A.C. 356 (H.L.) (appeal taken from Eng.),
(Hodson, Lord, concurring) at 379, (Guest, Lord, concurring) at
381-2, (Wilberforce, Lord, concurring) at 393, (Pearson, Lord,
concurring) at 395 (cited in Waterhouse v. Australian Broadcasting
Corp., (1989) 86 A.C.T.R. 1 (Australia); Edmunds v. Simmonds [2001]
1 W.L.R. 1003; Harding v. Wealands, [2006] UKHL 32 (appeal taken
from Eng.).]
71. The reason for such characterization can be illustrated by
taking into perspective the law of a country that does not grant
damages on account of pain and suffering, thereby rendering a non
citizen, who meets with an accident and undergoes pain and
suffering, without suffering any economical loss, totally
remediless. Thus applying procedural law and characterizing the
heads of damages as a procedural issue in such cases poses a
situation wherein in essence, no right of the claimant can be
enforced and hence substantive rights are adversely
affected.[footnoteRef:133] [133: Id.,at 394.]
ii. Non- recognition of any head of damage leads of a separate
cause of action.72. In the illustration above, though there would
be a civil wrong done according to the law of which the claimant is
a citizen; but by the lex loci delicti, the place where the tort
occurred (where the claimant might have gone to holidaying
purposes), there would be no justification, and consequently no
civil cause of action.[footnoteRef:134] [134: Mostyn v. Fabrigas, 1
Cowp. 161.]
73. Therefore, the common law recognizes that difference or
differences in the recoverable heads of damage will distinguish one
cause of action from another.[footnoteRef:135] [135: See Chaplin,
[1971] A.C. 356 (H.L.) at 392, 394G-395B; Kohnke v. Karger [1951] 2
K.B. 670.]
74. A similar question arose in the case of Black v.
Yates,[footnoteRef:136] where the plaintiff widow sought to secure
damages under the head of loss of dependency from an English Court
on the basis of a judgment from the Spanish Court holding the
defendant guilty of negligently causing the death of the claimants
husband in Spain. The Court rejected the claim on the sole ground
that the Spanish law recognizes the right to recover under the head
of damage for loss of dependence which was also recoverable in
English proceedings under the Fatal Accidents Act 1976. [136:
[1992] Q.B.526.]
iii. Non- recognition of damages under the head of bereavement
in Indian law may lead to a separate cause of action.75. The
English statutory law recognises damages in cases of death due to a
tort under various heads including that of
bereavement[footnoteRef:137]. The purpose of damages for
bereavement made recoverable is regarded as constituting
compensation for all non- pecuniary loss suffered by the surviving
relatives including grief or mental suffering.[footnoteRef:138]
[137: Fatal Accidents Act, 1976, c. 30, 1A (Eng.).] [138: Law
Commission of UK, Report on Personal Injury Litigation - Assessment
of Damages, at 30- 3 (1973); 148 Parl. Deb, H.C. (1989) 558(U.K.);
148 Parl. Deb, H.C. (1989) 519-20(U.K.).]
76. Therefore, if the Indian law does not recognize this head of
damage by applying its own substantive law,[footnoteRef:139] then,
in such cases a right, not only remedy, of the claimant would be
curtailed. [139: Dr. Balram Prasad v. Dr. Kunal Saha and
Ors.,(2014) 1 S.C.C. 384.]
77. Hence, it is submitted that another cause of action would
arise in terms of whether the claimant is entitled to seek damages
under the head of bereavement in the English statutory law which
would have to be addressed by the English Civil Courts. Therefore,
there is no bar to file a civil action in England.[footnoteRef:140]
[140: Civil Jurisdiction and Judgments Act, 1982, c. 27, 34 (Eng.);
1 Dicey et al., supra note, at p. 584.]
iv. The Principle of claim preclusion is inapplicable.78. The
UNIDROIT Principles of Transnational Civil Procedure regarding the
rules of successive jurisdiction, i.e., res judicata is intended to
avoid repetitive litigation.[footnoteRef:141] [141: UNIDROIT, supra
note 6, art. 28.]
79. Claim preclusion means that a claimant may not, in a
subsequent action, assert a claim that was the subject of a prior
action, whether the claim was victorious or defeated, if it was
conclusively determined.[footnoteRef:142] [142: UNIDROIT Principles
of Transnational Civil Procedure (2004), Travaux Prparatoires,
Study LXXVI 1999 Doc. 3 at 22.]
80. In the present case, the claimant is seeking damages under
the head of bereavement or mental and emotional distress in losing
his wife. But if is the Indian Courts do not grant damage under
this head on the ground that its substantive law, i.e., the common
law, does not recognize such type of damages, then, there is no
claim preclusion as it would be an instance of the claim being left
undecided due to absence of a provision in law. B. Avoid any
Chances of Delay in Grant of Relief from the Indian Courts.81. The
English common law allows parallel proceedings in two jurisdictions
only in unusual circumstances.[footnoteRef:143] It has been opined
in order to address the issue of Lis alibi pendens that the second
proceeding could be stayed with the option of reopening it again in
case the first proceeding does not provide timely and satisfying
relief.[footnoteRef:144] [143: Australian Commercial Research and
Development Ltd. v. A.N.Z. McCaughan Merchant Bank Ltd., [1989] 3
All E.R. 65.] [144: UNIDROIT Principles of Transnational Civil
Procedure (2004), Travaux Prparatoires, Study LXXVI 1999 Doc. 1at
14; Doc. 3 at 23.]
82. Therefore, the UNIDROIT Principles to which both India and
UK are signatories,[footnoteRef:145] provide that the court should
decline jurisdiction or suspend the proceeding, when the dispute is
previously pending in another court competent to exercise
jurisdiction, unless it appears that the dispute can be
expeditiously resolved in that forum.[footnoteRef:146] [145: Key
Assumption (a) to the Moot Court Problem.] [146: UNIDROIT, supra
note 6, art. 2.6.]
VI. That the Claimant is Entitled to Sue and Claim Damages under
Various Heads.83. The claimant is the husband of the victim-
deceased and has sued the defendants for treating his wife
negligently, thereby causing her death.84. The common law maxim
action personalis moritur cum persona, i.e. a personal right of
action dies with the person, has been abrogated by the statutory
provisions of Legal Representatives Suits Act
1855,[footnoteRef:147] and Fatal Accidents Act
1855[footnoteRef:148]. These statutory laws enable the Executors,
Administrators or Representatives to sue for any wrong committed in
the time of the deceased person and also provide for compensation
to the families for the loss occasioned by the death of a person
caused by actionable wrong.[footnoteRef:149] [147: Legal
Representatives Suits Act 1855, Act, No.12 of 1855, Statement of
Objects and Reasons [hereinafter Legal Representatives Act].] [148:
Fatal Accidents Act 1855, No.12 of 1855, Statement of Objects and
Reasons [hereinafter Fatal Accidents Act].] [149: Legal
Representatives Act, supra note 146, 1; Fatal Accidents
Act,supranote 147, 1A.]
85. It is submitted that the claimant under the above laws and
the common law is entitled to various [A] pecuniary; [B] non-
pecuniary; and[C] punitive damages, due to the commission of the
tort of negligence by the defendant doctors.A. Entitlement to
Recover Pecuniary Damages.86. Pecuniary damages are those damages,
which the victim has actually incurred and are capable of being
assessed in terms of money.[footnoteRef:150] [150: R.D. Hattangadi
v. Pest Control (India) Pvt. Ltd., A.I.R. 1995 S.C. 755 (cited in
Ashwani Kumar Mishra v. P. P. Muniam Babu, 1999 A.C.J. 1105.).]
87. The claimant is entitled to pecuniary damages under the
heads of loss of income of the deceased (i); and costs in terms of
the expenses incurred in the medical treatment in Kolkata and
Gurgaon, travelling and hotel expenses of taking to Gurgaon and
expense of litigation including lawyer services (ii);i. Loss of
income of the deceased leading to loss of dependency.88. Both Legal
Representatives Suits At 1855 read with the Fatal Accidents Act
1855 allow the administrators, executors or representatives of the
deceased to sue the wrongdoer for the pecuniary loss caused to the
dependents.[footnoteRef:151]For the purposes of assessing damages
to the dependents, it has been held that the income of the deceased
should be taken into account.[footnoteRef:152] [151: Legal
Representatives Act, supra note 146, 1 r/w Fatal Accidents Act,
supra note 147, 1A; Ratanlal and Dhirajlal, supra note80, at 113.]
[152: National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2
S.C.C. 763.]
89. The Supreme Court of India has in a similar case used a
method quite similar to the formulae prescribed by the Medical
Malpractices Act 2013,[footnoteRef:153] to calculate the loss of
the income of the deceased for granting damages to the dependents.
In that case, it took the income of the deceased at the time of her
death, and based on that income, calculated the sum that she could
have earned had she been in a regular job, termed as a. Then, it
reduced 30 % on account of future loss of income from the income of
the deceased, termed as b. Then, a deduction of 1/3rdfor the
purposes of expenditure was done from the income at the time of
death, termed here as c. To the sum c, it multiplied the number of
lost years of life of the deceased when she could have earned and
also multiplied the conversion rate from dollar to rupee (in that
case the couple was from US), termed here as c+. Therefore, the
loss of income was ascertained by adding to a, the difference
between b and c+.[footnoteRef:154] [153: Key Assumption (b) to the
Moot Court Problem.] [154: See Dr. Balram Prasad, (2014) 1 S.C.C.
384.]
90. It is submitted that the said method will aptly take into
account the difference in the standards of living of the people in
UK and having to bear the loss of deceased as far as financial
aspect is concerned.ii. Costs in terms of expenses incurred on
various items.91. In the cases of medical negligence, the Supreme
Court of India has awarded damages on the ground of expenses
incurred by the claimant on the heads of cost of medical treatment
including the cost of medicines, consultants fees, nursing charges
and other ancillary charges like transportation to and from
hospital,[footnoteRef:155] and the costs incurred in the litigation
including the lawyer fees.[footnoteRef:156] [155: Tapas Kumar
Koley, Medical Negligence and the Law in India: Duties,
Responsibilities, Rights98 (1stedn. 2010).] [156: See Dr. Balram
Prasad, (2014) 1 S.C.C. 384.]
B. Entitlement to Recover Non- Pecuniary Damages.92. Non-
pecuniary damages are those damages, which are capable of being
assessed by arithmetical calculations.[footnoteRef:157]The claimant
is entitled to non-pecuniary damages under the heads of pain and
suffering of the deceased (i);loss of consortium(ii);and mental and
emotional distress of the claimant (iii). [157: R.D. Hattangadi v.
Pest Control (India) Pvt. Ltd., A.I.R. 1995 S.C. 755 (cited in
Ashwani Kumar Mishra v. P. P. Muniam Babu, 1999 A.C.J. 1105
S.C..]
i. Pain and Suffering of the Deceased.93. The abolition of the
maxim action personalis moritur cum persona, by the Legal
Representatives Suit Act 1855[footnoteRef:158] and Fatal Accidents
Act 1855[footnoteRef:159] allows for damages suffered by the
deceased before his death under the heads of loss of earnings, pain
and suffering.[footnoteRef:160] Duration and intensity of pain and
suffering are taken into consideration while awarding damages under
this head.[footnoteRef:161] [158: Legal Representatives Suits Act
1855;Ratanlal and Dhirajlal, supra note 80, at 132.] [159: Fatal
Accidents Act 1855, No.12 of 1855.] [160: Koley, supra note 154, at
94-5.] [161: See Dr. Balram Prasad, (2014) 1 S.C.C. 384.]
94. In the present case, the horrific impact of TEN resulting in
the detachment of skin,[footnoteRef:162] further aggravated with
the increased vulnerability of sepsis due to depleting immunity as
a consequence of administration of alarming dosage of anti-allergy
steroids,[footnoteRef:163] has caused tremendous pain and shock to
the deceased. [162: Moot Court Problem, 7.] [163: William
Martindale, Martindale: The Extra Pharmacopoeia 1021 (James E.F.
Reynolds et al. eds., 31st ed. 1996) (cited in Sukumar Mukherjee
and Baidyanath Halder v. Malay Kumar Ganguly and Anr.,(2004) I.L.R.
1 Cal. 332).]
ii. Loss of Consortium.95. In legal parlance, consortium is the
right of the spouse to the company, care, help, comfort, guidance,
society, solace, affection and sexual relations with his or her
mate.[footnoteRef:164] [164: Rajesh and Ors. v. Rajvir Singh and
Ors., 2013 (9) S.C.C.54; (cited in See Dr. Balram Prasad, (2014) 1
S.C.C. 384).]
96. The Honble Supreme Court of India has recognized that the
loss of companionship, care and protection, etc., is a loss for
which the spouse is entitled to get compensated
appropriately.[footnoteRef:165]Therefore, by granting damages under
the head of loss of consortium, the Courts have made an attempt to
compensate the loss of spouses affection, comfort, solace,
companionship, society, assistance, protection, care and sexual
relations during the future.[footnoteRef:166] [165: See Dr. Balram
Prasad, (2014) 1 S.C.C. 384; See Rajesh and Ors., 2013 (9)
S.C.C.54; Sunil Sharma v. Bachitar Singh, (2011) 11 S.C.C. 425;
Pushpa v. Shakuntla, (2011) 2 S.C.C. 240; Rani Gupta v. United
India Insurance Company Ltd., (2009) 13 S.C.C. 498.] [166: See
Rajesh and Ors., 2013 (9) S.C.C.54 (citedin See Dr. Balram Prasad,
(2014) 1 S.C.C. 384).]
iii. Mental and Emotional Distress of the Claimant.97. In
England, bereavement damages[footnoteRef:167] are perceived as
performing a symbolic function of providing some sympathetic
recognition by the state of the fact of grief, sorrow, pain caused
to the claimant on losing some loved one,[footnoteRef:168]and an
expression on the part of society of the gravity with which it
regards the loss of a human life.[footnoteRef:169] [167: Fatal
Accidents Act, 1976, c. 30, 1A (Eng.)] [168: 428 Parl. Deb, H.C.
(1982) 1294 (U.K.).] [169: 428 Parl. Deb, H.C. (1982) 41-2 (U.K.);
148 Parl. Deb, H.C. (1989) 544 (U.K.).]
98. In the present case, the claimant being the husband of the
deceased had to experience the traumatic experience of having to
see his wifes suffering on account of her disease and her bodily
reactions to the steroids recklessly administered by the
defendants, leading to the wearing off of the skin on her body and
culminating in her untimely death.[footnoteRef:170] [170: Moot
Court Problem, 7.]
C. Entitlement to Recover Punitive Damages.99. Punitive damages
are awarded to punish the defendant and to deter him and others
from similar behavior in future.[footnoteRef:171] [171: Winfield
& Jolowicz, Tort1230 (Rogers ed., 18thedn., 2010).]
100. It has been recognized the Supreme Court that punitive
damages are routinely awarded in medical negligence cases in many
jurisdictions for reckless and reprehensible act by the doctors or
hospitals in order to send a deterrent message to other members of
the medical community.[footnoteRef:172]It is also recognized that
the patients, irrespective of their social, cultural and economic
background have a Human Right to be treated with
dignity.[footnoteRef:173] [172: Landgraf v. USI Film Prods, 511
U.S. 244 (1994); Welch v. Epstein 536 S.E. 2d. 408 (2000) (cited in
See Dr. Balram Prasad, (2014) 1 S.C.C. 384).] [173: Paschim Banga
Khet Mazdoor Samity v. State of West Bengal, (1996) 4 S.C.C. 37
(cited in See Dr. Balram Prasad, (2014) 1 S.C.C. 384).]
101. In the present case, administration of a dose of 80 mg of
Depomedrol along with prescribing injection Depomedrol to be used
twice daily for three days by the 1stdefendant was in clear
violation of the manufacturers warning and recommendation, which no
doctor has to right to do.[footnoteRef:174] [174: Moot Court
Problem, 3;See Sukumar Mukherjee and Baidyanath Halder,(2004)
I.L.R. 1 Cal. 332.]
102. Therefore, it is submitted that the claimant is entitled to
pecuniary, non- pecuniary and punitive damages in light of the loss
of income of the claimants wife, mental suffering and pain of both
claimant and his wife, costs incurred in contesting litigation in
form of travelling expenses, lawyer services and the patent
negligent act and omission of the defendants.
Pleadings
Prayer
In light of the facts of the case, issues raised and arguments
advanced, Counsels for the Claimant respectfully prays before this
Honble Court to:
1. Hold that the defendants were compositely negligent in
causing the death of the claimants wife;2. Award damages;3. Reject
any injunction application sought against the claimant from
initiating any legal proceeding in any other forum;4. Pass any
other order, which this Honble court may be pleased to grant in the
interests of justice, equity and good conscience.
All of which is respectfully affirmed and submitted
Sd/-Counsels for Claimant