Team P6 Memorial-On-behalf-Of-Petitioner FRESHERS MOOT

CNLU FRESHERS MOOT COURT COMPETITION- 2017

BEFORE THE HON’BLE DISTRICT

CONSUMER DISPUTE REDRESSAL COMMISSION AT PATLIPUTRA

COMPLAINT UNDER CONSUMER PROTECTION ACT,1986

CC/01/****/2017 UNDER SEC. 2(1)(g) OF COPRA,1986 IN THE MATTER OF SEC. 2(1)(o) of COPRA, 1986

VIKASH KAPOOR .…………….………………………………………………..PETITIONER v. ESPONDENTS DR. ANAND RASTOGI……………....…………………………………. R ESPONDENTS

UPON SUBMISSION TO THE HON ’BLE DISTRICT JUDGE AND HIS COMPANIONS

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

CNLU FRESHERS MOOT COURT COMPETITION - 2017

TABLE OF CONTENTS

TABLE OF CONTENTS ...........................................................................................................i LIST OF ABBREVIATIONS ...................................................................................................ii INDEX OF AUTHORITIES ....................................................................................................iii STATEMENT OF JURISDICTION ........................................................................................iv STATEMENT OF FACTS ........................................................................................................ v STATEMENT OF ISSUES .....................................................................................................vii SUMMARY OF ARGUMENTS ............................................................................................viii ARGUMENTS ADVANCED...................................................................................................9 I.WHETHER

DISTRICT CONSUMER FORUM IS MAINTAINABLE. ...................................................................................................................... 9 THE COMPLAINT BROUGHT BEFORE THE

I.1. It should be filed in state and national commission and criminal courts ..................... 9 I.2. Mrs. Sindhu Kapoor is a consumer and service has been provided to her by Dr. Anand ............................................................................. Error! Bookmark not defined. II. Whether medical negligence has occured ................... Error! Bookmark not defined. III. Whether Dr. Anand Rastogi is liable for the medical negligence which has occured..13x III.1. Hit and Trial method was adopted by Anand Rastogi Error! Bookmark not defined. III.2. There is an apparent authority of Dr. Anand over Dr. Suman Sharma Error! Bookmark not de III.3. Damages to be awarded ...................................... Error! Bookmark not defined. PRAYER ................................................................................................................................. 15

i MEMORIAL ON BEHALF OF THE PETITIONER


LIST OF ABBREVIATIONS ¶

Para

¶¶

Paras

AIR

All India Reporter

Art.

Article

COPRA

Consumer Protection Act, 1986

Ed.

Edition

p.

Page No.

PAT

Patliputra

SC

Supreme Court

SCC

Supreme Court Reports

SCJ

Supreme Court Journal

Sec.

Section

u/a

Under Article

ii MEMORIAL ON BEHALF OF THE PETITIONER


INDEX OF AUTHORITIES CASES

1. Indian Medical Association v. VP Shantha AIR 1996 SC 550: (1995) 6 SCC 651 2. Spring Meadows Hospital and another vs. Harjot Ahluwalia 1998 (4) SCC 39 3. Trans Mediterranean Airways v. Universal Exports (2011) 10 SCC 316

BOOKS 1. Dhirajlal&Ratanlal,

The

Law

of

Torts.26 th

edition

2012,

LexisNexis

ButterworthsWadhwa.

LEGAL DATABASES 1. Manupatra 2. Indiankanoon

LEGISLATIONS 1. The Constitution of India, 1950 2. Consumer Protection Act, 1986 3. Indian Contracts Act, 1872

iii MEMORIAL ON BEHALF OF THE PETITIONER


STATEMENT OF JURISDICTION

The Hon’ ble District Consumer Forum has the jurisdiction in this matter under the followings sections of the Consumer Protection Act, 1986 (1)

Sec 2(1) (d) which defines who is consumer and Sec 2 (1) (o) define what is

service. The definition of service is not an exhaustive one, so if health service is not specifically mentioned in the provision it has been interpreted that the provision includes such services, inspite of existence of professional regulatory bodies. (2)

Medical Services are treated as in ambit of “services” under Sec. 2(1) (o) of

the Act. · a. It is not contract of personal service as there is absence of master servant relationship. · b. Contract of service in Sec. 2(1) (o) cannot be confined to contracts for employment of domestic servants only. (3)

Deficiency of service under Section 2(1)(g) of the Act provides that,

“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

iv MEMORIAL ON BEHALF OF THE PETITIONER


STATEMENT OF FACTS

1. Patligram is a small village in the District of Patliputra, in the state of Vihar in India. Vikash Kapoor, whose age is 65 years is owner of vast plots of lands. His wife Sindhu Kapoor is a home-maker. Dr. Anand Rastogi is a renowned medical practitioner, holding a MBBS degree from DIIMS, the rank one medical college in the state. He owns and manages a nursing home in the district which has a panel of doctors who visit the nursing home on calls whenever needed. He is also famous for providing free medical services to poor people. 2. On 01.05.2017, Sindhu Kapoor, whose age is 62 years, experienced mild abdominal pain. She was taken to nursing home of Dr. AnandRastogi, who examined her and advised some tests. The results of tests showed no abnormality. Dr. Anand discharged Sindhu Kapoor after prescribing some medicines. 3. On 11.05.2017, Sindhu Kapoor again complained of mild abdominal pain. She was again taken to Dr. Anand, who attended her and advised her some tests. The test results showed that she was suffering from mild acidity. She was administered medicines and was discharged. 4. On 21.06.2017, Sindhu Kapoor again complained of abdominal pain and was taken to nursing home of Dr. Anand. On prima facie examining her, Dr. Anand called Dr. Suman Sharma, who is a gynecologist, posted at DIIMS. She immediately conducted Ultrasonography on Sindhu Kapoor which showed no abnormality. Further, pervaginal examination was done on her. It was found that the cervix was hard and uterus was retroverted and bulky. Dr. Suman Sharma without any further delay advised hysterectomy on Sindhu Kapoor. 5. Sindhu Kapoor was persuaded by the Gynecologist. Necessary arrangements were done by Dr. Anand and date of surgery was fixed on 22.06.2017. He called Dr. Suman Sharma, Gynecologist, Dr. Chetan (M.S), and Dr. Kumar (Anesthetist) for the surgery. 6. On 22.06.2017, Vikash Kapoor executed the risk bond and the process of hysterectomy was performed by the team of doctors. Sindhu Kapoor was not

v MEMORIAL ON BEHALF OF THE PETITIONER


discharged from the hospital till 29.06.2017, and on the said date Dr. Anand found her recovery normal. He discharged her by advising post-operative care. While getting discharged Sindhu again complained of mild abdominal pain. Dr. Anand advised her to get ultrasonography and X-ray and to return with the the results. 7. Vikash Kapoor, who was dissatisfied with Dr. Anand took his wife to his friend, Dr. Malik, who after examining her, referred Sindhu to Dr. Chatterjee, who was Laproscopic Surgeon posted at DIIMS. He also ran a private clinic. He examined Sindhu and advised surgery. An open surgery was performed on Sindhu on 01.07.2017. Pus, measuring one litre, was found inside her abdominal cavity, which was drained. He also found that intestines adhered to each other which could not be separated through surgery. She was kept under observation and was again operated on 05.07.2017. On 15.07.2017, she was declared out of danger and was discharged. 8. On 28.07.2017, Sindhu again complained of extreme abdominal pain and before she could be taken to a hospital, she fell unconscious and died. 9. A complaint was filed by Vikash Kapoor on 02.09.2017 before the District Consumer Forum of Patliputra alleging negligence and deficiency of service on part of Dr. Anand. A compensation of Rs. 15 lakhs was sought for deficiency of service and Rs. 50000/- as legal expenses. 10. The complaint was listed for admission before the District Consumer Forum, Patliputra on 10.09.2017. The forum admitted the complaint and date of 15.09.2017 was fixed for final hearing where both the respective counsels were directed to complete the pleadings.

vi MEMORIAL ON BEHALF OF THE PETITIONER


STATEMENT OF ISSUES ISSUE I: Whether the complaint brought before the District Consumer Forum is maintainable.

ISSUE II: Whether medical negligence has occurred.

ISSUE III: Whether Dr. AnandRastogi is liable for the medical negligence which has occurred.

vii MEMORIAL ON BEHALF OF THE PETITIONER


SUMMARY OF ARGUMENTS Issue I Whether the complaint brought before the District Consumer Forum is maintainable.

It is humbly submitted before the Hon’ ble Court that present complaint is maintainable against Dr. Anand Rastogi since there is a consumer-service provider relationship between them and duty under implied contract is owed to the plaintiff. Issue II Whether medical negligence has occurred.

It is humbly submitted before the Hon’ ble Court that, medical negligence has occurred because Dr. Suman Sharma operated another type of surgery on Mrs. Sindhu Kapoor despite being aware of a better alternative. Issue III Whether Dr. Anand Rastogi is liable for the medical negligence which has occurred.

It is humbly submitted before the Hon’ble Court that, Dr. Anand Rastogi is liable for the act of Dr. Suman Sharma according to the Doctrine of Apparent Authority.

viii MEMORIAL ON BEHALF OF THE PETITIONER


ARGUMENTS ADVANCED

I.WHETHER THE COMPLAINT BROUGHT BEFORE THE DISTRICT CONSUMER FORUM IS MAINTAINABLE.

The present complaint is maintainable under Sec. 2 (1) (d) 1 and Sec. 2 (1) (o) 2 of the Consumer Protection Act, 1986, since, ( I.1) It should not be filed in state and national commission and criminal courts (I.2) Mrs. Sindhu Kapoor is a consumer and service has been provided by Dr. Anand Rastogi to Mrs. Sindhu Kapoor.

I.1. It should not be filed in state and national commission and criminal courts

The suit is maintainable in District Forum and not in state and national courts, because according to Consumer Protection Act, 1986, the consumer can file a suit in the district forum in the following cases: 1. A complaint can be filed in the District Consumer Disputes Redressal Forum if the value of services and compensation claimed is less than 20 lakh rupees. 2. Before the State Commission, if the value of the goods and services and the compensation is between 20 lakhs and 1 crore Rupees. 3. Before the National Commission, if the value of the goods and services and the compensation exceeds more than 1 Crore Rupees. Further, it was also held in Spring Meadows Hospital and another vs. Harjot Ahluwalia 3, the Hon'ble Apex Court, having taken note of the background in which the 1986 Act came to be placed on the statute book, observed that the Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system.

1

Indian Medical Association v. VP Shantha AIR 1996 SC 550: (1995) 6 SCC 651

2 3

Id 1998 (4) SCC 39

MEMORIAL ON BEHALF OF THE PETITIONER


Referring to provisions in the Consumer Protection Act and the dictum in Trans Mediterranean Airways v. Universal Exports4, the court observed that the remedy available to the consumer under the Act of 1986 is an additional remedy and other remedies available to the consumer under the other statutory law would not bar the consumer to avail of the remedy available under the provision of the Consumer Protection Act. The court cannot reject the complaint filed by the petitioner on the ground of availability of alternative remedy.

Thus, it is humbly submitted that the suit is maintainable as 15 lakhs rupees is sought as compensation for deficiency in service and Rs.50,000/- as legal expenses which falls under the purview of District Forum. Moreover, alternate remedy is no bar. So, the court cannot reject the complaint filed by the petitioner on the ground of availability of alternate remedy.

I.2. Mrs. Sindhu Kapoor is a Consumer and service has been provided to her by Dr. Anand

According to Sec. 2 (1) (d) of the Consumer Protection Act, 1986, ‘consumer’ means any person who i) Buys any goods for a consideration, which has been paid or promised or partly paid and partly promised. ii) Hires or avails any services for a consideration, which has been paid or promised or partl y paid and partly promised. It also includes a) Beneficiary of services who has availed the services with approval of the person who has hired the services b) A person who has hired or availed services under any system of deferred payment. Sec. 2(1)(o) of consumer protection act, 1986 says that, “service” means service of any description which is made available to potential facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or 4

(2011) 10 SCC 316

10 MEMORIAL ON BEHALF OF THE PETITIONER


lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. Sec. 9 in The Indian Contract Act, 1872 in furtherance of the argument provides explaination to the relationship of consumer-service provider by way of an implied 5 contract because the provider had engaged in treatment and the consumer had availed the same. In this case, Mrs. Sindhu Kapoor has availed herself of the services provided by Dr. Anand. Dr. Anand provides free medical services to the poor but he is well aware of the fact that Mrs. Sindhu is wife of Mr. Vikash, who is a holder of vast plots of land and is a well known person in the village. So, there is an implied promise for the payment of services on part of Mr. Sindhu Kapoor to Dr. Anand. Thus, my client is a consumer according to Sec.2(1)(d) under COPRA, 1986. As Dr. Anand has not rendered his service free of charge or under a contract of personal service, “service” has been provided by Dr. Anand according to Sec. 2(1)(d)COPRA, 1986. Therefore, it is humbly submitted before the court that as service has been provided by Dr. Anand to the consumer Mrs. Sindhu, the suit is maintainable in District Forum because there is consumer-service relationship.

II.WHETHER MEDICAL NEGLIGENCE HAS OCCURRED.

Dr. Suman Sharma has committed the act of medical negligence because being a gynecologist, she was an expert in surgery of uterus. She should have known that the formation of post-operative adhesions is a particular risk after hysterectomy because of the

5

Section 9 in The Indian Contract Act, 1872



extent of dissection involved as well as the fact the hysterectomy wound is in the most gravity-dependent part of the pelvis into which a loop of bowel may easily fall 6. In one review, incidence of small bowel obstruction due to intestinal adhesion was found to be 15.6% in non-laparoscopic total abdominal hysterectomies vs. 0.0% in laparoscopic hysterectomies7. Despite knowing the fact that a better alternate surgery was available which would drastically reduce the risk of intestinal adhesion, she performed non-laproscopic hysterectomy. Due to the incompetence of Dr. Suman, even after the surgery and post-operative care, my client again complained of mild abdominal pain. Further, when a corrective surgery was done by Dr. Chatterjee, a laproscopic surgeon, pus measuring around one litre was found in the abdominal cavity which was drained and it was also found that the intestines had adhered to each other. The facts show that Dr. Suman Sharma was completely negligent in rendering the services. Had she been more careful in operating the surgery, Mrs. Sindhu would not have developed further medical problems. It was due to her incompetence that she was not able to find the problem in abdomen but further deteriorated the condition of Mrs. Sindhu, which led to the death of wife of petitioner. Therefore, it is humbly submitted before the court that Dr. Suman Sharma has negligently rendered her services to Mrs. Sindhu and should be made liable for medical negligence under Sec. 304A of IPC and incompetency and deficiency of service under Sec. 2(1)(g) of the COPRA.

III.WHETHER DR . ANAND R ASTOGI IS LIABLE FOR THE MEDICAL NEGLIGENCE WHICH HAS OCCURRED.

6

Wiseman DM (2008). "Disorders of adhesions or adhesion-related disorder: monolithic entities or part of something bigger — CAPPS?" Semin Reprod Med. 26 (4): 356 – 68 7 Barmparas G, Branco BC, Schnüriger B, Lam L, I naba K, Demetriades D (October 2010). "The incidence and risk factors of post-laparotomy adhesive small bowel obstruction". J. Gastrointest. Surg. 14 (10): 1619 – 28.



Dr. Anand Rastogi has negligently rendered his services to Mrs. Sindhu, since[III.1] Hit and Trial method was adopted by Dr. Anand and [III.2] there is an apparent authority of Dr. Anand over Dr. Suman Sharma [III.3] and therefore, liable to pay damages for the medical negligence. III.1.Hit and Trial Method was adopted by Dr. Anand

Despite being a renowned medical practitioner, no accurate tests were taken by him through which he could have found out the real problem. He adopted Hit and Trial method and instead of finding out the real problem he treated her until she got well, but same problem occurred again and again and inspite of giving her medicines, she didn’t got relief. He treated her on the basis of symptoms which occurred prima facie and did not conducted an in-depth medical analysis which could have rooted out the problem. Moreover, he appointed incompetent doctors for the surgery who instead of treating her, worsened her condition. This proves the incompetence of Dr. Anand, who was not able to treat her personally as well as through those who were appointed by him.

III.2. There is an apparent authority of Dr. Anand over Dr. Suman Sharma

Dr. Anand is bound by the acts of Dr. Suman Sharma due to the doctrine of apparent authority8. The doctrine of apparent authority is based on the concept of estoppel, thus, it prevents the principal from denying the existence of agency to a third party, provided that a representation, as to the agent's authority, has been made by him to the third party either through his words or by his actions. There must be some act or some knowing omission on the part of the principal - if the agent alone acts to give the third party this false impression, then the principal is not bound. However, the principal will be bound if the agent so acts in the presence of the principal, and the principal stands silently and says nothing to dissuade the third party from believing that the agent has the authority to bind the principal. In this case, due to the negligence of Dr. Suman Sharma in rendering the services to Mrs. Sindhu, Mr. Anand is bound by medical negligence for negligently providing medical 8

Gilbert v. Sycamore Mun. Hosp. 190 III. Dec. 758



services as a principal and giving authority to the agent to perform surgery on Mrs. Sindhu and a representation has also been made by Dr. Anand to Mrs. Sindhu.

III.3. Damages to be awarded

The principle of medical negligence imposes liability on the medical practitioner or a doctor by not providing enough care resulting in breach of their duties and harming the patients which are their consumers. Therefore, in this case Dr. Anand Rastogi is liable for being negligent in providing medical service since no accurate measures were taken by Dr. Anand for finding out the main problem and further he appointed incompetent doctors who instead of treating her, deteriorated her condition leading to her death. Therefore, Dr. Anand should be directed to pay the compensation to Mr. Vikash Kapoor.



PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ ble Court be pleased to:

1.

Hold Dr. Anand Rastogi liable for medical negligence and deficiency of service, and order provision of compensation to the aggrieved.

2.

Award compensatory damages to be paid by Dr. Anand Rastogi for medical negligence. AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this, the Petitioner as in duty bound, shall humbly pray.

COUNSELS FOR THE PETITIONER


Team P6 Memorial-On-behalf-Of-Petitioner FRESHERS MOOT

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