TEAM CODE R6

BEFORE THE HONBLE HIGH COURT OF JUDICATURE OF PATNA,

BIHAR

WRITTEN SUBMISSION FOR THE RESPONDENT

WP No. **** of 2016

Mr. ARMAAN DEV ---------------------------------------------------------------------(PETITIONER)

Vs.
Dr. NARENDRA BHAUMIK AND VMCH -------------------------( RESPONDENT)

FOR EXERCISING WRIT JURISDICTION UNDER

ARTICLE 226, CONSTITUTION OF INDIA

ON SUBMISSION TO THE HONBLE HIGH COURT OF JUDICATURE OF PATNA,

BIHAR
 TABLE OF CONTENTS

LIST OF ABBREVIATION ........................................................................................................... iii

INDEX OF AUTHORITIES .......................................................................................................... iv

STATEMENT OF JURISDICTION .............................................................................................. vi

STATEMENT OF FACTS .......................................................................................................... viii

STATEMENT OF ISSUES ............................................................................................................. x

SUMMARY OF ARGUMENTS ................................................................................................. xxi

ARGUMENTS ADVANCED .....................................................................................................11

1. THE PETITIONER DOES NOT HAVE LOCUS STANDI TO APPROACH THE

COURT AND THE PETITION IS NOT MAINTAINABLE.
.............................................11

1.1. There was a scope of better and efficacious institution to seek remedy from.

1.2. High Court cannot maintain writ petition under Art 226 of the constitution against
the order of the commission.

2. NO RIGHT OF NEGLIGENCE TO THE PATIENT ARISES AGAINST THE

SURGEON AT VMCH.............................................................................................................13
2.1. There is no breach of any of the duties owed by a doctor to the patient.

2.2. Inoculation of heavy dose of Anaesthesia does not mean injection of excessive
dose.
2.3. As a mandate for conducting such treatment prior consent of the patient and his
family was obtained.

3 ELEMENT OF CONTRIBUTORY NEGLIGENCE EXISTED ON THE PART OF

ARMAANS FATHER. ...............................................................................................................15

PRAYER .......................................................................................................................................16

ii
 LIST OF ABBREVIATION

& And
Sec. Section
Paragraph
A.P. Andhra Pradesh
AIR All India Reporter
Art. Article
WLR Weekly Law Reports
Corpn Corporation
Ed. Edition
Honble Honourable
Ors. Others
p. Page number
ER English Report
Sec. Section
SC Supreme Court
SCC Supreme Court Cases
Govt. Government
v. Versus
Vol. Volume
www. World Wide Web

iii
 INDEX OF AUTHORITIES

CASES

Bolam V Friern Hospital Management Committee (1957) WLR 582.

Eckersley v. Binnie and Partners (1988) CILL 388 (CA)
Jacob Mathew vs. State of Punjab, AIR 2005 SC 3182
Mohd. Ishfaq vs. Dr. Martin D.'Souza (07.01.2002 NCDRC)
Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others (20.02.1996 - SC)
Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC 322.
State of Punjab v. Shiv Ram, AIR 2005 SC 3280
Dr. L.B. Joshi v. Dr. T.B. Godbole, AIR 1989 P. & H. 183, at 185
Kusum Sharma & Ors. vs. Batra Hospital and medical Research Centre and Others, (2010) 3 SCC
480
Municipal Corpn. Of Greater Bombay v. Laxman Iyer, AIR 2003 SC 4182
V.N. Shrikhande (Dr.) v. Anita Sena Fernandes, (2011) 1 SCC 53

1BOOKS AND DIGESTS

M.N. Shukla, The Law of Torts and Consumer Protection Act, (18 th ed., 2013).
R.K. Bangia, The Law of Torts,(23rd ed.,2013).
Ratanlal and Dhirajlal,, The Law of Torts, (26th ed. 2010).
Sweet and Maxwell, Medical Negligence, (4th ed. 2008).
Y. Ventkateshwara Rao, Commentary on Consumer Protection Act , 1986, (2 nd ed., 2009).
Jonathan Herring, Medical Law and Ethics, (4th ed., 2012).

iv
 H. M. Seervai, Constitutional Law of India, (4th ed., 2007).

Jagdish Swarup, Constitution of India, (2nd Ed., 2008) V N Shukla, Constitution of

India, (11th Ed., 2013).

Gurbax Singh,Digest of consumer protection cases ,1st edition

Bhagbati prosad bannerji,Writ remedies, 3rd edition

STATUTES AND INTERNATIONAL INSTRUMENTS

Consumer Protection Act, 1986.

The Constitution of India.
Law Reforms(Contributory Negligence Act) , 1945.
WEBSITES REFERRED
www.ejil.org (last seen on 22/11/2016).
www.judis.nic.in (last seen on 22/11/2016).
www.scconline.com (last seen on 23/11/2016).
www.lexisnexis.com (last seen on 22/11/2016).
www.manupatra.com (last seen on 26/11/2016).
www.indiankanoon.org (last seen on 26/11/2016).

v
 STATEMENT OF JURISDICTION

(1) The Petitioner has brought the instant matter before the Honble Court diction under Article
2261 of the constitution of India.

(2) The present memorial submits sets forth the facts, contentions and arguments on behalf of the
respondent.

226 power of high court

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or
person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of
such order and furnishes a copy of such application to the party in whose favour such order has been made or the

vi
counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on
which it is received or from the date on which the copy of such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which
the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that
period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme court by clause ( 2 ) of Article 32

vii
 STATEMENT OF FACTS

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

Mr Armaan Dev, a 22 years old student in the final year of five years law course ,was suffering
from severe headache from over a month and for this he consulted a physician providing free
medicament. But the headache persisted and he then went to a renowned hospital, Vargas
Medical College and Hospital and sought an appointment from a specialist, Dr. Narendra
Bhaumik who in his prescription listed few tests to be conducted at the earliest. On perusing
Armaans reports, Dr. Bhaumik recommended a neurosurgery, which normally calls for an
expenditure of Rs. 250000. VMCH informed Armaans family and sought their consent.
Armaans anxious father consented for the surgery and deposited the required amount.

II

After the surgery, as Armaan gained consciousness he complained of acute discomfort and
paralysis. Armaans father reported the same to the surgeon and other authorities of VMCH. The
surgeon informed him that it would take a minimum of 15 days period for the pain to subside
after which regular exercise and movement of limbs with the help of a caretaker were required
for recovery. He also cautioned and categorically asked them to take utmost care of Armaans
body, which was neglected by Armaans father who got apprehensive only in a period of 5 days
and admitted him to a Govt. hospital in desperation also, he failed to arrange for adequate and
smooth carriage of Armaan, vital for a patient in such grave condition.

III

Govt hospital by conducting various tests diagnosed that the soreness and pain caused in
Armaans body was due to inoculation of heavy dose of anaesthesia by the surgeon at VMCH

viii | P a g e
in the course of conducting the neurosurgery. Here also the doctors informed that it would take
Armaan long to get normal and till then he would be confined to a wheelchair. The surgeon was
accused by Armaans father for injecting excessive anaesthesia into his body.

IV

VMCH countered the allegation attributing Armaans plight to his sudden and reckless
movement from VMCH to the Government hospital. Further, it was pointed out that Armaans
father disregarded the surgeons requests to give Armaan 15 days time to recover and wait till
the pain subsided , instead of complying with which he deteriorated his condition by rushing him
from VMCH hospital to Govt. hospital without arranging for smooth carriage vital for him at that
point of time. Armaan and his father knocked the doors of National Commission seeking
compensation. The National Commission ordered granting an adequate compensation of Rs 15
lakhs and still not getting satisfied they approached Patna High Court for appropriate remedy.

ix | P a g e
 STATEMENT OF ISSUES

THE RESPONDENT WOULD LIKE TO HUMBLY SUBMIT THAT THE SURGEON AT

VMCH MUST NOT BE HELD LIABLE FOR MEDICAL NEGLIGENCE. THIS HAS BEEN
PLEADED BY RAISING THREE MAJOR ISSUES FOR THE HONBLE COURTS
CONSIDERATION:
1. THE PETITIONER DOES NOT HAVE LOCUS STANDI TO APPROACH THE
COURT AND THE PETITION IS NOT MAINTAINABLE
2. NO MEDICAL NEGLIGENCE ON THE PART OF THE SURGEON AT VMCH
3. EXISTENCE OF CONTRIBUTORY NEGLIGENCE ON THE PART OF
ARMAANS FATHER

x|Page
 SUMMARY OF ARGUMENTS

1.THE PETITIONER DOES NOT HAVE LOCUS STANDI TO APPROACH THE

COURT AND THE PETITION IS NOT MAINTAINABLE.

Armaans father who filed the writ petition has no locus standi to file the case. The order of the
Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a
statutory appeal in terms of Section 23 and 27 (A)(1)(c) lies to the honble Supreme Court.

2. NO NEGLIGENCE ON PART OF THE SURGEON AT VMCH

A medical practitioner is only liable where his conduct fell below that of the reasonably
competent practitioner in his field. A medical practitioner cannot be held liable simply because
the things went wrong by mischance or misadventure or through an error of judgement in
choosing one reasonable course of treatment in preference to another. Treatment and diagnosis
cannot be forced upon anyone who does not wish to receive them except in statutory sanction. In
the given case also the surgery was never forced upon the patient , on perusing Armaans reports
Dr. Bhaumik only recommended a neurosurgery. The given case also fulfils the criteria of taking
the informed consent of the patient and his family before moving further with any such
treatment, the authorities in this case intimated Armaans family about the surgery and sought
their consent which was mandatory.

3. ELEMENTS OF CONTRIBUTORY NEGLIGENCE ON THE PART OF ARMAANS

FATHER

When an accident is due to negligence of both parties, substantially there would be contributory
negligence and both would be blamed. As in the given case since there is no negligence on the
part of the surgeon Dr. Narendra Bhaumik or the hospital authorities at the VMCH hospital, no
question for contributory negligence on the part of Armaans father arises.

xi | P a g e
 ARGUMENTS ADVANCED

The following submissions have been made before the honble Patna high court.The present
matter has been initiated under article 226 of the constitution of India.
The respondents humbly submit before the High ccourt that the case is not mainatainable as the
[1] Jurisdiction of high court of juridicature at Patna cannot be exercised in this case;
[2] There is no negligence on the part of the surgeon at VMCH;
[3] There is presence of element of contributory negligence on the part of the appellant

1.THE PETITIONER DOES NOT HAVE LOCUS STANDI TO APPROACH THE

COURT AND THE PETITION IS NOT MAINTAINABLE.

It is humbly submitted before the Honble court that the instant court does not have
jurisdiction in the matter brought before it . The case could have been considered had there
been a gross violation of the appellants rights or had there been no remedy available
otherwise. Since there were other possible methods to seek remedy present before the
appellant, the petition stands non maintainable.

1.1 There was a scope of better and efficacious institution to seek remedy from.

Armaans father who filed the writ petition has no locus standi to file this case. The order of
the Commission are incapable of being questioned under the writ jurisdiction of the High
Court, as a statutory appeal in terms of Section 23 and 27 (A)(1)(c) lies to the honble
Supreme Court.1.

High courts throughout the territory of India have in various cases pertaining to a similar
situation have respected the established hierarchy for appealing against various commissions 2
stating that it would not be appropriate to interfere into matters concerning the consumer

1
Cicily Kallarackal v. Vehicle Factory, (2012) 8 SCC 524 .
2
Nurul Huda Layek and Ors. v. Yusuf Khan, WB ,0765, 2010

12
protection act,1986 where there is a possibility of the case being brought before a body
appropriately concerned with the matter or the supreme court . 3 The presence of alternate
remedy available before the appellant and presence of a well defined hierarchy the help of
which has not yet been but should have been taken by the appellant 4 in its entirety, the
petition stands inadmissible before this court.

1.2. Writ petition under Art 226 of the constitution is not maintainable against the order of the
National commission.

High Courts under article 226 of the constitution of India can issue writs.The writ petition in
the given case is not maintainable before the honble High court of Judicature of Patna
because the petitioner has an alternate and efficacious remedy of filing an appeal and raising
all contentions.5Also, it is necessary to bring into the kind knowledge of the honble court that
as stated by the honble supreme court, a writ is not maintainable in high court if pleaded for a
partys personal benefit6.Also, it has to brought into light that in a similar case, the Jharkhand
High court had gone for the decision that accepting a writ petition in cases like this would not
be appropriate. 7 Since the use of a writ against the respondents in this case would mean
interfering in the normal working of an already well designed hierarchy, a writ petition in this
case before the honble court would stand inadmissible before the court.

3
Tulasi Enterprise v. Andhra Pradesh State Consumer Dispute Redressal Commission, AIR 1991 AP 0055
4
Cox and Kings vs Raj Kumar Mittal Anr. , AIR 1977 SC 0224
5
A G Sawant v Sanjay D. Berde ,CA No. 99/2013
6
Binny ltd v. Sadasivan, AIR 2005 SC 0470
7
Dr. SS Prasad vs. Sumitra Devi JCR 56 Jhr

13
2. NO MEDICAL NEGLIGENCE BY THE SURGEON AT VMCH

It is humbly submitted before the honble court that the surgeon at VMCH was not negligent
in performing in his duties and the pain suffered by Armaan is because of the wrong and
hasty decisions taken by his father who went against the advices given to him by a specialist
surgeon .

2.1. There is no breach of any of the duties owed by a doctor to the patient

A man need not possess the highest expert skill ; it is well established law that it is sufficient
if he exercises the ordinary skill of an ordinary competent man exercising that particular
art.8A physician never assures the patient of full recovery in every case. A surgeon cannot and
does not guarantee that the result of surgery would invariably be beneficial , much less to the
extent of 100% for the person operated on . 9 The elements to prove medical negligence on the
part of the surgeon are missing in the given case. To establish liability on that must be shown:
(1) that there is usual and normal practice, (2) the defendant has not adopted it , and (3) that
the course in fact adopted is one no professional man of ordinary skill would have taken had
he been acting with ordinary care.10 A medical practitioner is only liable where his conduct
fell below that of the reasonably competent practitioner in his field. 11 If any of the three
elements as mentioned is missing , then the case will not fall under the category of medical
negligence. Also in the cases dealing with medical negligence the onus to prove the
negligence of the concerned medical authority rests on the complainant. 12

8
Bolam v. Friern Hospital Management Committee,(1957) 1 W.L.R 582, 586
9
Jacob Mathew vs. State of Punjab, AIR 2005 SC 3180
10
Eckersley v. Binnie and Partners (1988) CILL 388 (CA)
11
Quoted Ibid
12
DR. DEEPAK KUMAR SATSANGI & ANR. V/s SANJEEVAN MEDICAL RESEARCH CENTRE (P)
LTD. & ORS. NCDRC CONSUMER CASE NO. 22 OF 2010

14
The order of the Commission are incapable of being questioned under the writ jurisdiction of the
High Court, as a statutory appeal in terms of Section 23 and 27 (A)(1)(c) lies to the honble
Supreme Court

2.2. Inoculation of heavy dose of Anaesthesia does not mean injection of excessive dose.

In the realm of diagnosis and treatment there is scope for genuine difference of opinion and
one professional doctor is clearly not negligent merely because his conclusion differs from
that of other professional doctor. 13 . A medical practitioner cannot be held liable simply
because the things went wrong by mischance or misadventure or through an error of
judgement in choosing one reasonable course of treatment in preference to another. 14

In the given case from the various tests conducted at the Govt. Hospital it was diagnosed that
the soreness and the pain caused to Armaans body was due to inoculation of heavy dose of
anaesthesia by the surgeon at VMCH in the course of conducting the neurosurgery15, while
Armaans father accused the surgeon of injecting excessive anaesthesia into his sons body. 16
This turns out to be an attempt of tampering with the facts mentioned in the report given by
the Govt. hospital .Also this necessary to be mentioned that the patient concerned was taking
medication from a doctor who provided free medication. This can also be a probable reason of
the post surgery problems which armaan was facing.

The neurosurgery through which the patient i.e. Armaan underwent involves the inoculation
of regional anesthesia the side effects of which include headache which starts after 12 to 14
hours of surgery and can last a week or longer.this is because of loss of spinal fluid when the
anesthetic is injected. Much less frequently nerve damage or paralysis is possible. 17 Since this
time period of at least 7 days was not provided by the sufferers father who got apprehensive

13
Kusum Sharma & Ors. vs. Batra Hospital and medical Research Centre and Others, (2010) 3 SCC 480
14
Martin F. DSouza v. Mohd. Ishfaq, AIR (2009) SC 2049
15
6, Fact Sheet
16
7, Fact Sheet
17
Possible complications of anesthesia, Stanley J.Swierzewski,III,MD

15
in only 5 days and this not let the hospital complete the post surgery steps which are an
integral part of the surgery in such cases, there can be no claim of negligence on the part of
the doctor.

This is also to be brought into the attention of the honble court that the situation of post
operative acute pain and discomfort after a neurosurgery is found in majority of the cases and
occurrence of any situation of this type is not a rare site. 18As stated by the Supreme court of
India A simple lack of care, an error of judgment or an accident, is not proof of negligence on
the part of a medical professional. So long as a doctor follows a practice acceptable to the
medical profession of that day, he cannot be held liable for negligence merely
because a better alternative course or method of treatment was also available or simply
because a more skilled doctor would not have chosen to follow or resort to that practice or
procedure which the accused followed. 1920

2.3. As a mandate for conducting such treatment prior consent of the patient and his family
was obtained.

Treatment and diagnosis cannot be forced upon anyone who does not wish to receive them
except in statutory sanction.21 In the given case also the surgery was never forced upon the
patient , on perusing Armaans reports Dr. Bhaumik only recommended a neurosurgery. 22The
informed consent promotes the rights of a patient as autonomous beings to ensure that they
are treated with justice, beneficence, and respect. 23 The given case also fulfils the criteria of
taking the informed consent of the patient and his family before moving further with any such
treatment, the authorities in this case intimated Armaans family about the surgery and sought
their consent which was mandatory.

18
Acute and chronic pain following craniotomy: a review L. C. de Gray1 and B. F. Matta2
1 Pain Fellow, Norfolk and Norwich University Hospital, Colney Lane, Norwich, 2 Consultant in Neuroanaesthesia,
Addenbrookes Hospital, Hills Road, Cambridge, UK
19
Ins. Malhotra vs A. Kirplani & Ors. CA 1386 of 2001
20
Dr. Laxman Balkrishna vs. Dr. Trimbak, AIR 1969 SC 128
21
Sim J; Informed consent: ethical implications for physiotherapy. Physiotherapy, 1986; 72: 584-587.
22
2, Fact Sheet
23
Catherine SweeKian TAY; Recent developments in informed consent: the basis of modern medical ethics,
APLAR Journal of Rheumatology, 2005; 8: 165170

16
A Judge can find a doctor guilty only when it is proved that he has fallen short of a standard
of reasonable medical care24. The fact and circumstances of the case before us show that the
Appellant has attended to the patient with due care, skill, and diligence. It is settled law that it
is for the Complainant to prove the negligence or deficiency in service by adducing expert
evidence or opinion and this fact is to be proved beyond all reasonable doubt. Mere allegation
of negligence will be of no help to the Complainant. 25

3. CONTRIBUTORY NEGLIGENCE ON THE PART OF ARMAANS FATHER.

The contributory negligence Act prescribes the rule when there is contributory negligence on the
part of the plaintiff:(1) It has to be proved that the plaintiff did not take due care of his own
safety and thus contributed to his own damage.(2) It has also to be proved that it is the lack of
care of the plaintiff which contributed to the resulting damage. 26 When an accident is due to
negligence of both parties, substantially there would be contributory negligence and both would
be blamed.27As in the given case since there is no negligence on the part of the surgeon Dr.
Narendra Bhaumik or the hospital authorities at the VMCH hospital, no question for contributory
negligence on the part of Armaans father arises as the element of negligence can be constituted
against no one but Armaans father.

Further, it was pointed out that Armaans father did not follow the advice of the surgeon , who
categorically asked them to take utmost care of Armaans body. 28 Armaans father getting
apprehensive took him to the Govt. hospital without any arrangement of smooth an adequate
carriage, vital for a patient in such grave condition.29 This resulted in further ruin of Armaans
case and the doctors at Govt. Hospital informed that it would take long for Armaan to get normal
and he was confined to a wheelchair.30 Any person of ordinary prudence, who may have suffered
pain and discomfort after surgery would have consulted the concerned surgeon or any other

24
www.ncbi.nlm.nih.gov/pmc/articles/PMC2779962/
25
Dr. Akhil Kumar Jain v. Lallan Prasad. 2004;(II) CPJ 504.
26
Nance v. British Columbia Electric Rail Co.,(1951) 2 All E.R. 448, 450, per Viscount Simon.
27
Municipal Corpn. Of Greater Bombay v. Laxman Iyer, AIR 2003 SC 4182
28
4, Fact Sheet
29
5, Fact Sheet
30
6, Fact Sheet

17
competent doctor and sought his advice31 but the appellant did nothing , instead of cooperating
with the surgeon and following his advice of taking utmost care of the body of the patient, his
father did something totally opposite and did not wait for the 15 days time period which was
necessary for him to recover. Since this can be proved easily by the facts provided in the case it
is evident that there was negligence on the part of Armaans father.

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honorable Court may be pleased to adjudge, hold and declare:

1. Dismiss the petition.

2. Dismiss the allegation of negligence on the part of the VMCH surgeon.

And pass any other relief, that this Honble Court may deem fit and proper in the interest of
justice, equity and good conscience.

For this act of justice, the Respondent shall duty bound forever pray.

31
V.N. Shrikhande (Dr.) v. Anita Sena Fernandes, (2011) 1 SCC 53

18
 - Counsel for the
Respondent

19