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BEFORE THE HIGH COURT OF KERALA

DR. MANOJ (APPELLANTS) V. STATE (RESPONDENTS)

MEMORIAL FOR APELLANTS

TABLE OF CONTENTS INDEX OF AUTHORITIES..3 STATEMENT OF JURISDICTION..5 STATEMENT OF FACTS..6 QUESTIONS PRESENTED..7 SUMMARY OF PLEADINGS.8 ARGUMENTS ADVANCED..9 PRAYER...12

INDEX OF AUTHORITIES

[TREATISES AND BOOKS]

1. Dr. K N Chandrasekharan Pillai, R.V. Kelkars Criminal Procedure, Eastern Book Company, Fifth Edition, 2008.

[ARTICLES REFERRED]

1. Supreme Court and Medical Negligence: Necessary Protection or License to Kill? Harish. Articles@Manupatra. 2. Supreme Court and Medical Negligence: Necessary Protection or License to Kill? Koushik Kumar Prasad. Articles@Manupatra. 3. Supreme Court and Medical Negligence: Necessary Protection or License to Kill? Arani Chakrabarty. Articles@Manupatra. 4. Criminal Negligence for Doctors: Is The Gross Negligence Test Justified? Gaurav Miglani. Articles@Manupatra. 5. The Indian Penal Code: Differences Between Justification and Excuses and Mistakes, Necessity and Accidents as Defences. Sarica Ashok Reddy. Articles@Manupatra.

[ACTS, RULES, REGULATIONS AND GUIDELINES REFERRED] TA \L "STURKIE V. SIFLY, 280 S.C. 453, 313 S.E.2D 316 (CT. APP. 1984)" \S "STURKIE V. SIFLY, 280 S.C. 453, 313 S.E.2D 316 (CT. APP. 1984)" \C 1
1. Indian Penal Code, 1860. 2. Criminal Procedure Code, 1973.

STATEMENT OF JURISDICTION

The appellants, Dr. Manoj and Elysian Hospitals Private Ltd., have the honour to submit the matter of appeal before the High Court of Kerala, Kochi under section 482 Cr.P.C.

STATEMENT OF FACTS
 Dr. Manoj is Superintendent and Chief Medical Officer of Elysian Hospitals. Pvt. Ltd.  The hospital hosts one of the few heart and lung machine in the state.  It is an expensive and special equipment.  Amin is facing failure of internal organs as a result of cancer of the brain stem.  Amins condition has no known cure.  24 months after the diagnosis, Amin is put on the machine.  Six months later Amins family is not able to pay the bills. A reduction in bills is granted by the MD. But even after 9 months, Amins family owes the hospital over 2 months bills.  At this stage, a victim of a motor accident, requiring to be put on the heart-lung machine is brought in a critical condition to the hospital.  The doctors are of the opinion that he has a better chance of survival if put on the machine.  MD asks for the payment of bills or removal of Amin from the machine, family takes no action.  Amin is removed from the machine, dies within 30 minutes.  Police refuses to record a complaint.  Amins family approaches the Magistrate through a private complaint.  Magistrate orders for police investigation, police stand firm on their opinion that no offence is made.  Magistrate takes cognizance of the complaint following due procedure.  Dr. Manoj approaches the High Court against this order of the Magistrate.

QUESTIONS PRESENTED
 Whether a person having a better chance of survival must be given precedence? (Principle of Necessity).  Whether private hospital is bound to continue treating the patient even when it is not being paid for services rendered by it?  Whether any offence is made out?  Criminal medical negligence not made out.  Why did the Magistrate take cognizance of the case against police opinion?  Is there a violation of natural justice.

SUMMARY OF PLEADINGS

 Why did the magistrate take cognisance of the case when the police was of the opinion that no offence is made out?  Violation of natural justice Dr. Manoj not told about the offence he has been charged with.  Whether a person having a better chance of survival must be given precedence? (Principle of Necessity) Justification means, The act by which a party accused shows and maintains a good and legal reason in court, why he did the thing he is called upon to answer. Excuse Means, "a reason alleged for the doing or not doing a thing."  No action taken when the family was told to pay arrears. It is a private hospital. It gets no grant from the state. In order to keep running, it has to charge for its services.  No offence made out u/s 304-A, s. 81 r/w s. 299 IPC.

ARGUMENTS ADVANCED
 Necessity As A General Exception Section 81 of the Indian Penal Code; Act likely to cause harm, but done without criminal intent, and to prevent other harm Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation: It is a question of fact in such a case whether the harm to be prevented or avoided was of such nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.

In the given fact scenario, Dr. Manoj removed Amin from the heart-lung machine to prevent the life of the motor accident victim, who had a better chance of survival. Had he not done so, the victims death was imminent. He should be excused as he did the act with a noble intention to save the life of a person who had a better chance of survival.

Necessity is meant by a situation where conduct promotes some value higher than the value of the literal compliance with the law. It is on the principle of expediency that the law has recognised necessity as an excuse in criminal cases. Section 81 stresses three conditions to claim exemption from criminal responsibility, namely: 1) The act must have been committed in order to avoid other harm; 2) The harm to be avoided must be such as to justify the risk of doing an act likely to cause harm; and 3) The act must have been committed in good faith without any criminal intention to cause harm. In the given fact scenario, all the requirements of section 81 are met with and this proves that there was a genuine case for Dr. Manoj to exercise his discretion. And as it is a general exception, the case wont come under any provision of the IPC. It is not an excuse, but a valid justification which will stand in a court of law.

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Elysian Hospital is one of the best hospitals in the state. This statement is substantiated by the fact that it has one of the few heart-lung machines in the state. It is an expensive and special equipment. And the fact that the machine is installed in a private hospital instead of any government hospital, speaks volumes about the quality of healthcare service provided at Elysian Hospital.

And the decision of which patient is to be put upon the heart-lung machine should be decided by the doctor concerned as he has a specialised knowledge in the field.

The immunity from criminal liability under this section will be available where an offence is committed without any criminal intention, to cause harm and in good faith and if such offence is committed without any criminal intention, to cause harm and in good faith and if such offence is committed for the purpose of preventing or avoiding another harm or property. The harm caused need not be necessarily less than the harm averted, though this question would become material when judging the good faith of an act. The explanation to the section provides that the justification for the harm caused and whether the risk should be excused, is a question of fact to be determined in each case.

 Arrears Not Paid Six months after Amin is put up on the heart-lung machine, Amins family finds it hard to pay the bills of the hospital. The Managing Director, himself a qualified doctor, reduces the bill, though under no obligation to do so as it is a private hospital getting no grants from the government. Even after this benevolent act on the hospitals part, the family is still unable to meet the bills, and at the time of the incident, Amin is on the machine for over 9 months, and Amins family owes the hospital over 2 months bills.

Elysian Hospital is a private hospital. It gets no grants or financial aids whatsoever from either the state government or any other entity. It provides the best doctors available to the patients, which can be inferred from the facts as one of the few heart-lung machines has been given to the hospital.

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Obviously, these doctors would be charging fees equivalent to their talent, which of course would be high. These doctors render their services to Elysian Hospital because they get appropriately remunerated in exchange for their services. When a patient is unable to pay the bills of the hospital, these doctors cannot be paid their remuneration. More so, when it is regarding heart-lung machine, the cost of which is more than other machines. This directly affects the livelihood of the doctors rendering their services to the hospital.

The doctors even put up with reduced remunerations for some length of time, but for how long should they continue to do so?

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PRAYER

Wherefore, in the light of the facts stated, points raised, arguments advanced and the authorities cited, This Honourable High Court may be pleased to

Declare that:

1) There has been a violation of natural justice as the appellant was not informed about the charges levelled against him. 2) No offence is made out against the hospital. 3) The hospital management is competent to take decisions when it comes to such challenging scenarios.

PLACE: Ernakulam. DATE: 9TH February, 2012

All of which is respectfully submitted Counsel for Appellants