TEAM CODE 42

INTRA MOOT COURT COMPETITION, RAFFLES UNIVERSITY 2020

IN THE HON.BLE SUPREME COURT OF RANVICORA

Civil Appeal No:……… of 2018

IN THE MATTER BETWEEN

Dr. Andrew Holland …….Appellant

Mr. Jacob Smith ……..Respondent

Written submission on behalf of the Respondent

(This Memorandum has been prepared for Respondent Mr. Jacob Smith)

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………...................................……………….. 3

INDEX OF AUTHORITIES…………………………………………...................................4

STATEMENT OF JURISDICATION………………………………..................................5

STATEMENTS OF FACTS…………………………………………...................................6

STATEMENTS OF ISSUES…………………………………………..................................9

SUMMERY OF ARGUMENTS………………………………………..............................10

ARGUMENTS IN ADVANCE………………………………………...............................11

1. WHEATHER THE APPELANT IS LIABLE FOR MEDICAL

NEGLIGENCE?.......................................................................................................11
2. WHEATHER THE APPELANT IS LIABLE TO PAY FULL
COMPENSATION TO THE RESPONDENT? ………………............................14

PRAYER………………………………………………………………...............................15

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LIST OF ABBREVIATIONS

A.I.R. All India Reporters

Art. Article

SC Supreme Court

SCC Supreme Court Cases

Hon’ble Honourable

& And

Acc. According

CPC Civil Procedure Code

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INDEX OF AUTHORITIES

CASES:

 Dr. L.B.Joshi v. Dr. T.B. Godbole, A.I.R. 1989 P. & H. 183, at 185
 Dr. Kunal Saha v. AMRI, (2011) 13 SCC 98
 Malay Kumar Ganguly v. Sukumar Mukherjee, A.I.R. 2010 S.C. 1162
 V.Kishan Rao Vs Nikhil Super Speciality Hospital, (2010) 5 S.C.C. 513
 Davies v. Mann, (1882) 10 M. and W. 546.

WEBSITES:

www.scconline.com

www.indiankanoon.com

www.wikipedia.com

https://blog.pleaders.in

BOOKS:

LAW OF TORTS,( Dr. R. K. Bhangia Twenty-Third Edition, 2013)

THE LAW OF TORTS,( Ratanlal and Dhirajlal, 26 th Edition , 2010)

Law of Torts, (B.M.Gandhi Fourth Edition, 2011)

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STATEMENT OF JURISDICTION

The Respondent humbly submitted the memorandum in response to the Appeal filled by
Appellant under Art. 1411 read with 142 2of the Constitution of Ranvicora.

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Law declared by Supreme Court to be binding on all courts. The law declared by the Supreme Court shall be
binding on all courts within the territory of India
2
Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court
in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete
justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable
throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament
and, until provision in that behalf is so made, in such manner as the President may by order prescribe

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STATEMENTS OF FACTS

1. Jacob smith is the 50 years old plaintiff who suffers from a particular type of cancer
known as non-Hodgkin lymphoma (cancer that starts in WBC and weakens our
immune system).
2. In the beginning his condition was presented as a substantial lump under his right
arm. He first seeks medical treatment in July 2016, although the symptoms for the
same was seem 18 months before itself to Smith. Due to constant reminder of his wife
he consults a doctor Mr. Andrew Holland (a general practitioner).
3. Dr Holland was might be described as “regular doctor” of Mr. Smith. It was found in
the record of Dr. Holland that Mr. Smith attends his consultation infrequently.
4. Dr Holland considered smith initial condition as lymphoma (collection of fatty tissue)
and after making his conclusion, Dr. Holland did not refer him to any specialist for
the confirmation of his examination.
5. After consulting Dr. Holland for 6 months Smith moved to city named Renac, due to
inconvenient to continue with the treatment of Dr. Holland, In august 2017 Smith
raised the matter of lump to another general practitioner (Dr. Anushka Patel) who also
came with same opinion that lump was “probably a lipoma” but for the confirmation
she referred him to Princess Alexandria Hospital (PAH) on non-urgent basis for his
lump. The referral recorded that the lump was become larger since Mr. Smith noticed
it and occur with increasing pain and discomfort.
6. The consultant who examined Mr. Smith on this referral in Nov 2017 has some doubt
that the lump was in fact a benign and arranged a biopsy (removal of tissue from
human body) urgently. Then after four days he confirmed that the lump was in fact a
lymphoma that after sometime turned into non-Hodgkin lymphoma.
7. A CT scan on December 2017 did not show any signs that the disease is spread into
any part of the body. On 26th January 2018, Mr. Smith admitted to PAH with intense
chest pain. On further examination it was found that it was a result of lymphoma
spread into his left thorax.

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8. Chemotherapy was arranged on six occasions followed by radiotherapy, to which the

body did not respond. Further it was decided that he will be subjected to high dose of
chemotherapy for harvesting of his stem cells.

9. In November 2018 smith condition got worse when he developed a tumour in the
right Axilla, which eventually resulted in poor medical condition further he was told
that he would not recover or can be said “cured”. In April 2019, there was another
relapse which was never analysis before, for which another calming chemotherapy
was suggested.
10. As expected the result of all of the original treatment on him and his life is highly
destructive. As a consequence he had to give up his work in august 2018. He felt ill
all of the time and week and lacking energy ever since.
11. Mr. Smith submitted his claim to the court for the loss and damages he suffered under
medical negligence. On the basis of this the court observation was concluded below-
 In the 13 months period of time when Mr. Smith consulting with Dr. Holland and
treatment started, Dr. Holland should advised the claimant to consult with
specialist to achieve complete information about the lump so there will be a
chance of avoiding high dose of chemotherapy.
 It was also stated that it is not important that the competent general practitioner
refer the lump for further examination in all cases. Such decision was only depend
on clinical judgments, which does not automatically translate the liability into
negligence.
 The expert evidence from Professor Stanhope was unquestioned, and because of
treating the plaintiff as an example of the whole population of anaplastic large cell
lymphoma patient cause the delay in referral and because of the delay in referral
Mr. Smith initial chance of remission decrease from 45% to 30 %

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 It is not possible to say that without the adverse prognostic factors delay the
plaintiff would become disease free survivor, or avoided the high dose
chemotherapy. He may do but it is not possible to say

 What can be said is that Mr. Smith situation is negatively affected because of the
delay in seeking expert advice about the putative lipoma.

12. Based on what was, on the whole, an uncontested medical narrative of the progression
of Mr. Smith’s condition, I therefore make the following findings –
13. The negligent failure on the part of Dr. Holland was a contribution to Mr. Smith
condition. If Mr. Holland made a referral in July 2016, it is more probable that Mr.
Smith condition will not became that much serious.
14. Both parties accept that the quantum of damages claimed by the plaintiff is an
appropriate amount should liability be found. That amount, as set out and calculated
below in these reasons, is $185,000 plus $24,674 in interest under the appropriate
scales. This is not contested
15. However, the court is anxious by the fact that Mr. Smith delayed in seeking any form
of medical advice for a period of 18 months. In this day and age, it is not
unreasonable to expect that an individual will take adequate care of their own health,
and seek medical opinion when appropriate. Faced with the symptoms as he described
them, Mr. Smith’s delay in seeing Dr Holland was, itself, a material contributory to
the development of the disease.

16. While, for obvious reasons, there is a lack of clinical evidence or opinion as to the
precise effect this delay might have had on the progression of M. Smith’s condition, I
accept (as was urged by the defendant’s counsel) that such delay amounted
contributory negligence on the part of the plaintiff as understood .

17. Accordingly, the amount of damages is reduced by 35%.

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STATEMENTS OF ISSUES

1. WHEATHER THE APPELANT IS LAIBLE FOR MEDICAL NEGLIGENCE?

2. WHETHER THE APPELANT IS LIABLE TO PAY FULL COMPENSATION?

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SUMMARY OF ARGUEMENTS

1. WHEATHER THE APPELANT IS LAIBLE FOR MEDICAL NEGLIGENCE?

It is humbly submitted before this hon’ble bench that the appellant is liable for
Medical Negligence because:
The appellant fails to perform his standard duty of care which he owes towards the
respondent which results in his breach of duty & the doctrine of Res Ipsa loquitur is
also applied here. Essentials of the Medical Negligence are also fulfilled.

2. WHETHER THE APPELANT IS LIABLE TO PAY FULL COMPENSATION?

It is humbly submitted before this hon’ble bench that Appellant is liable to pay full
compensation to the respondent even if the respondent is 18 months late to take any
medical treatment of his problem because the doctrine of Last Opportunity Rule is
applied here. The appellant has the last opportunity to avoid the consequences.

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ARGUEMENTS ADVANCE

1. WHEATHER THE APPELANT IS LAIBLE FOR MEDICAL NEGLIGENCE?

It is humbly submitted before this hon’ble bench that the appellant is liable for
Medical Negligence because:
A) The appellant fails to perform the aforesaid duties which results in breach of duty
B) The doctrine of Res Ipsa loquitur is also applied here.

A) The appellant fails to perform the aforesaid duties which results in breach of
duty-
A doctor owes some duty of care towards patients, they are as follows:
 It is the duty of the doctor to decide whether he wants to undertake the
case or not,
 It is his duty to decide which treatment he wants to give and
 It is his duty to decide the administration of treatment.

In the above situation, it is totally up to the Dr. Holland weather he wants to take the case of
Mr. Smith and what treatment he wants to give him. But due his breach of duty that he did
not refer Mr. Smith to any specialist for the proper administration of lump, Mr. Smith have to
go through many critical conditions which effect him very badly. Also Due to the delay in the
referral the life expectancy of Mr. Smith tends to decline from 45% to 30%.

SC also held that “a doctor has certain aforesaid duties and a breach of any of those duties
can make him liable for medical negligence. A doctor is required to exercise a reasonable
degree of care that is set for this profession”3.

The negligent failure on the part of Dr. Holland was a contribution to Mr. Smith condition. If
Mr. Holland made a referral in July 2016, it is more probable that Mr. Smith condition will
not became that much serious or his duration of life expectancy will be extended to 10 years
of survival and he don’t need go through such high dose chemotheraphy.

3
Dr. L.B.Joshi v. Dr. T.B. Godbole, A.I.R. 1989 P. & H. 183, at 185

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On the other hand, even after the CT scan had done in the Princess Alexandria Hospital
(PAH) it is not clear to the doctors that the lymphoma had spread to the other parts of the
body also. And the treatment given to Mr. Smith is that much high in dose that his body did
not response to it.

The effect of the treatment on Mr. Smith and his life was very devastating. He suffered severe
side effects from the original treatment, He felt very ill all of the time and has continued to
feel weak and lacking in energy.
The negligent behavior on the part of doctor resulted in the non-compliances of the set
standards which are required as an obligation for their profession due to which the respondent
has to go through many damages.
4
Similarly in the case of Dr. Kunal Saha v. AMRI due to the medical negligence of the
doctor the wife of the Dr. Kunal Saha Died. As per the facts of the case Anuradha
complained of skin rashes and on April 25, had consulted Dr Sukumar Mukherjee, who,
without prescribing any medicine, simply asked her to take rest.
As rashes reappeared more aggressively on May 7, 1998, Dr Mukherjee prescribed
injection, a step which was later faulted by experts at the apex court.

After administration of the injection, Anuradha’s condition deteriorated rapidly following

which she had to be admitted at AMRI on May 11.  As Anuradha’s condition failed to
improve, she was taken to Breach Candy Hospital, Mumbai, where she was found to be
suffering from a rare and deadly skin disease Toxic Epidermal Necrolysis (TEN).  She died
there on May 28, 1998. Dr. Kunal Saha got a total of Rs 11.41 crore as the doctors of AMRI
hospital were negligent on their part.

Also SC stated that “However, if the doctor knowingly fails to provides some amenities that
were fundamental for patients, such failure would amount to medical malpractice. Likewise,
treatment found to be not in accordance with medical protocol will be a case of medical
negligence”5

4
(2011) 13 S.C.C. 98
5
A.I.R. 2010 S.C. 1162.

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Therefore, the Appellant Dr. Holland is Liable for the medical negligence as he did a breach
of his duty of care which he owes towards the respondent Mr. Smith.

B) The doctrine of Res Ipsa loquitur is also applied her:

The Latin maxim “res Ipsa loquitur” means that “the thing speaks for itself. The
doctrine assumes the following:-

 Nature of injury gives the clue that without the negligence the things which happen
could not have happened.  
 There was no involvement of the patient or a injured party himself in the injury in any
way.  
 The injury happened under the circumstances which were under the supervision and
control of the doctor.

In the Case of Mr. Smith also the delay in the referral shows that without the negligent on the
part of Dr. Holland the problems to which Mr. Smith undergo could not happened and if he
suggests Mr. Smith for the specialist advice in early July 2016 may be his expectancy of life
would be increased. And in all this situation there is no involvement of Mr. Smith as it is the
only Mr. Holland decision to take the matter of Mr. smith as a as an example of the whole
population of anaplastic large cell lymphoma and not to refer him to any specialist for further
examination. And all the problems which Mr. Smith has to face are arises when he was under
the supervision of the doctors.

Similarly In the case of V.Kishan Rao Vs Nikhil Super Speciality Hospital 6, there was a
man Krishna Rao; an officer in malaria department filed a complaint against the hospital for
treating his wife negligently. His wife was suffering from malaria but the treatment which
prescribed to her is of typhoid, due to this negligence behavior of the doctors they held liable
and Rao was awarded a compensation of Rs. 2 lakhs. In this case the principle of res Ipsa
loquitor was applied and the compensation was given to Mr. Rao.

So in the case of Mr. Smith and Dr. Holland the principle of Res Ipsa loquitor is applied and
Dr. Holland should held liable to pay the compensation to Mr. Smith.

6
(2010) 5 S.C.C. 513.

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2. WHEATHER THE APPELANT IS LIABLE TO PAY COMPENSATION TO

RESPONDENT?
It is humbly submitted before this hon’ble bench that Appellant is liable to pay full
compensation to the respondent even if the respondent is 18 months late to take any
medical treatment of his problem because
 The doctrine of Last Opportunity Rule is applied here.
 The appellant is liable for medical negligence.
A) The doctrine of Last Opportunity Rule is applied here-
Acc. to this rule, when two people are negligent, that one of them who had the later
opportunity of avoiding the accident by taking ordinary care should be held liable for
the loss. Similarly, in the case of Mr. Smith, Dr. Holland had the later opportunity to
avoid the problems arises due to the negligence on his part. If Dr. Holland earlier
advised Mr. Smith for further administration to a specialist, it is more probable that
Mr. Smith condition will not became that much serious.

The case of Davies v. Mann7, explains the rule. In that case the plaintiff fettered that forefeet
of his donkey and left if on a narrow highway. The defendant was driving his wagon driven
by horses too fast that it negligently ran over the donkey and killed him. In spite of his own
negligence, the plaintiff was held entitled to recover because the defendant had the “last
opportunity” to avoid the accident.

Similarly, Dr. Holland held liable for the damages faced by Mr. Smith because firstly, as we
discussed in above issue Dr. Holland was failed on his part to perform his standard duty of
care and secondly even if Mr. Smith is 18 months late to take any medical treatment Dr.
Holland had the last opportunity to avoid the damages which the Mr. Smith has to face.

Therefore, Appellant is liable to pay full compensation to the respondent as medical

negligence is a civil wrong in law of tort for which the compensation is unliquidated
damages. The respondent is entitled to take full compensation from the appellant acc. to the
damages he had faced

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(1882) 10 M. and W. 546.

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PRAYER

Wherefore in the light of facts, issues raised, argument advanced and authorities cited, the
respondent most humbly submit that the hon’ble court be pleased to adjudge and declare that:

 The decision of the trial court was incorrect.

 The Appellant is guilty for medical negligence
 The Respondent is entitled to get full compensation from the Appellant.

And finally declare that the Respondent is not liable for contributory negligence under any
law.

MISCELLANEOUS

Any other order as it deems fit in the interest of justice, Equity and Good Conscience

For this Act of Kindness, the Respondent shall Duty Bound Forever Pray.

The Respondent
SD/-
.....................................
(Counsel for the Respondent)

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