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FACTS
Sherlock, snowboarder by profession, sustained serious injuries in his left leg as a result of
getting tripped off the pathway on the street while crossing the road. This happened when
Ryan called out his name loudly in the middle of the street and he was startled to hear the
same suddenly. Before this, Sam, a pedestrian while returning from a shop across the street
had accidently spilled a bottle of mustard oil near the pathway and then just went away
without making an attempt to clear it. However, Sherlock is not sure that whether the reason
why he fell is attributable to Rayan, who distracted him while he was crossing the road or
because he slipped in the oil, but he is sure that one of these factors must have caused his fall.
Sherlock is taken to the Woodlands Hospital where Mark, a doctor, negligently fails to
diagnose that his ankle is broken. Because he is unaware that his ankle is broken he attempts
to drive to a snowboarding competition the next day. Later, while driving to the competition,
while applying the brakes to prevent collision with a truck, he develops a sudden pain in his
ankle as a result of applying the brake with a lot of force. It is then found that he has a broken
ankle. It was found that Graham's ankle will always remain weak as a result such injury, and
that consequently he is likely to earn far less by way of participating in snowboard teams
during his career. The delay in diagnosing the ankle injury substantially reduced the
likelihood that this permanent weakness could have been avoided.
The Hospital authorities have contacted you. Argue on their behalf and defend the hospital
authorities in a claim for vicarious liability.

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ISSUES AT HAND
I.

WHETHER THERE IS A SITUATION WHERE DAMAGES ARISE OUT

II.

OF NEGLIGENCE?
WHETHER THE HOSPITAL IS LIABLE IF THE DOCTOR WAS
NEGLIGENT?

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ARGUMENTS ADVANCED

I. DAMAGES DO NOT ARISE OUT OF ANY NEGLIGENT ACT.

a. The act was not negligent.
Negligence is the omission to do something which a reasonable man guided by those
consideration which ordinarily regulate the conduct of human behavior, would do; or doing
something which a prudent and reasonable man would not do. 1 Negligence in the context of
medical profession necessarily calls for a treatment with a difference. To infer rashness or
negligence on the part of a professional, in particular a doctor, additional considerations
apply. A case of occupational negligence is different from one of professional negligence. A
simple lack of care, an error of judgment or an accident is not proof of negligence on the part
of a medical professional. The standard to be applied for judging, whether the person charged
has been negligent or not, would be that of an ordinary competent person exercising ordinary
skill in that profession. It is not possible for every professional to possess the highest level of
expertise or skills in that branch which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis or the yardstick for judging
the performance of the professional proceeded against on indictment of negligence. 2 Hence in
this case the act of the doctor wherein he failed to diagnose that the plaintiffs ankle is broken
would not be negligent.
b. Damages did not arise out of direct consequence.
It is important to prove the that the injury that occurred was due to the direct consequence of
negligent act, and there should have been no contribution toward the damage by the

1 Blyth v. Birmingham Waterworks Co., (1856) 11 Ex 781, Baron Alderson.

2 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1

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plaintiff.3 Considering but not accepting that the doctors act was negligent, but the
damage that was caused was not a direct consequence of the act. Sherlock knew that
his ankle was injured but he still carelessly and negligently went on to drive the very
next day. The grave injury that happened to him was also because a truck appeared in
front of him and he had to press the braked very hard, hence it can be stated that the
injury was not a direct consequence of the act of the doctor.
II. THE HOSPITAL WILL NOT BE LIABLE FOR THE ACTS OF THE DOCTOR.
In Gold v. Essex County Hospital Council, the court has held that the hospital authorities are
not legally liable for the negligent acts of their professional staff. Also when the appeal of the
same case take to a higher court, the higher court held the order and added that there is a
distinction between medical staff on a contract for service(e.g. consultants) and those
employed on a contract of service (e.g. nursing staff). They added that that vicarious
liability applied in the later case, but not the former. Hospitals may be direct employers of
certain healthcare staff, including paramedics, medical technicians and nurses. For
individuals with whom the hospital shares an employer/employee relationship, the hospital
may be sued under the doctrine of respondent superior. Hospitals are usually not liable for the
medical malpractice of doctors because most doctors are independent contractors. It has been
the general rule that a fully licensed and practicing physician who simply has hospital
medical or surgical staff privileges is an independent contractor and not a servant or an agent
of the hospital. The mere fact that a professional person is on the staff of a medical care
institution does not result in a finding that he is a servant. 4 The courts have stressed that the
contract for medical treatment was between the patient and Doctor. These courts emphasize
that there is a distinction between the managerial and medical activities of the physician. As

3 Barnett v. Chelsea and Kensington HMC, 1 All ER 1068-74

4 Mayers v. Litow, 154 Cal. App. 2d 413, 316 P. 2d 351 (1957)

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to the latter he acts as an independent contractor. The hospital corporation is entirely separate
from its managers and stockholders. The hospital's contract with the patient is only to furnish
medical services to be rendered by others and it does not undertake to practice medicine
through servants. It is liable only if it negligently selects physicians to treat the patient.5
Another argument supporting the hospital claim is that physicians, not hospitals, have a duty
to practice medicine non-negligently, so a hospital cannot delegate a duty it never had. In
some jurisdictions, a non-delegable duty is an established exception to the general rule that an
employer is not liable for the negligence of independent contractors, making hospitals
vicariously liable as matter of law for independent contractors negligence.

THE ARGUMENTS ARE HENCE HUMBLY SUBMITTED FOR THE COURT TO JUDGE UPON.

5 Barfield v. South Highland Infirmary, et al., 191 Ala. 553, 68 So. 30 (1915); Black v.
Fischer, et al., 30 Ga. App. 109, 117 S.E. 103 (1923) ; Stacy v. Williams, 253 Ky. 353, 69
S.W. 2d 697 (1934).