IN THE HONOURABLE NATIONAL

CONSUMER DISPUTE REDRESSAL

COMMISSION

MEMORIAL FILED ON BEHALF OF THE RESPONDENT

IN THE MATTER OF

MR. ATUL ………………PETITIONER

VERSUS

STATE OF GOA …………….RESPONDENT

Most humbly submits before the Hon’ble judge

The counsel appears on behalf of Respondent

SUBMITTED TO SUBMITTED BY

MS. GURPREET KAUR SHWETA BANSAL

ROLL NO. 1003

B.A.L.L.B. 10TH SEMESTER

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 INDEX

LIST OF ABBRIVATIONS 3 INDEX OF AUTHORITIES 4

• TABLE OF STATUTE
• WEBSITES
• BOOKS

TABLE OF CASES 5

STATEMENT OF JURISDICTION 6

STATEMENTS OF FACTS 7

ISSUES 9

SUMMARY OF ARGUMENTS 10

ARGUMENTS ADVANCED 11

PRAYER 19

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 LIST OF ABBREVIATIONS

1. H.C High Court

2. S.C. Supreme Court

3. A.I.R All India Reports

4. P&H Punjab and Haryana

5. Hon’ble Honorable
6. Vs. Versus
7. Ors. Others
8. SCC Supreme Court Cases
9. Vol. Volume
10. Sec. Section

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 INDEX OF AUTHORITIES

TABLE OF STATUTES

1) Consumer Protection Act, 1986

WEBSITES

1) www.indiankanoon.org
2) Livelaw.com
3) Lawfinderlive.com
4) www.reasearchgate.net
5) www.vakilno1.com

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 TABLE OF CASES

1) Bhalchandra @ Bapu & Another v. State of Maharashtra

2) Jacob Mathew v. State of Punjab & Another
3) Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others
4) Kusum Sharma & Ors vs Batra Hospital &Medical Research
5) Dr. M. Kochar vs Ispita Seal

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 STATEMENT OF JURISDICTION

The National Commission has the jurisdiction to try the instant case which states that-

Jurisdiction of the National Commission. — Subject to the other provisions of this Act, the
National Commission shall have jurisdiction—

(a) To entertain—

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds
rupees one crore; and

(ii) appeals against the orders of any State Commission; and

(b) to call for the records and pass appropriate orders in any consumer dispute which is pending
before or has been decided by any State Commission where it appears to the National
Commission that such State Commission has exercised a jurisdiction not vested in it by law, or
has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction
illegally or with material irregularity.

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 STATEMENT OF FACTS

1. That Mrs. Sangeeta and Mr. Atul were married in the year 2008 and resided in Saleli village
in Sattari.
2. That Sangeeta was unable to conceive a child. The couple was however optimistic and
prayed to God for a miracle.
3. That On 30 August 2018, Sangeeta was admitted in the govt. maternity hospital Sakhali in
goa. Against the normal gestation period of 38-40 weeks, she delivered a premature a
female baby in the 29th week of pregnancy.
4. That the baby weighed only 1250 Gms at birth. The infant was placed in an incubator in
intensive care unit for about 25 days. The baby was administered 90-100% oxygen at the
time of the birth and underwent blood exchange transfusion a week after birth.
5. That the baby had apneic cells during the first 10 days of her life.
6. That She was under the care of Dr. Dinesh Teli Neopaediatrician and head of department
of neo Natology unit and Dr. Mahesh Naik, a Doctor at the hospital which is established
and run in the state of Goa.
7. That the mother and the baby were discharged on 23rd September, 2018.
8. That The discharge card summary reads as follows-
Mother confident; informed about the alarmed signs:
• To continue breast feeding
• To attend post-natal O.P. on Tuesday
9. That However, the mother and the baby visited the hospital on 30th October, 2018 at the
chronological age of 9 weeks.
10. That the follow up treatment was also administered by Dr. Mahesh Naik at their residence
during home visits.
11. That the baby was under his due care 4-13 weeks of chronological age the only advice
given by Dr. Naik was to keep the baby isolated and confined to the four walls of the sterile
room so that she could be protected from infection.

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 12. That the doctor completely overlooked the well-known medical phenomenon that a
premature baby who has been administered supplemental oxygen and has been given blood
transfusions in the course of advancement makes the child blind.
13. That Dr. Naik the govt doctor checked up the baby at his private clinic when the baby was
as of 14-15 weeks of chronological age and didn’t suggest a checkup for ROP.
14. That the baby lost her eyesight for life. The parents of the baby were devastated when they
came to know of loss of sight this was their only child after 10 years of marriage.
15. That Atul blamed the doctor and the hospital for this gross negligence. He expressed his
desire to sue the govt. and the doctors for compensation.

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 ISSUES
WHETHER THE RESPONDENT CAN BE HELD LIABLE FOR
MEDICAL NEGLIGENCE OR NOT?

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 SUMMARY OF ARGUMENTS

WHETHER THE RESPONDENT CAN BE HELD LIABLE FOR

MEDICAL NEGLIGENCE OR NOT?

The main defence is against the appellant’s claim for compensation that at the time
of delivery and management, no deformities were manifested and the
complainant was given proper advice, which was not followed. Therefore, the
respondent is not liable for compensation of medical negligence.

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 ARGUMENTS ADVANCED

WHETHER THE RESPONDENT CAN BE HELD LIABLE FOR MEDICAL

NEGLIGENCE OR NOT?

It is humbly submitted before The Hon’ble Commission that the Respondent should be
discharged of charge of medical negligence defined u/s 2(g) of the consumer protection
Act, 1986. It states that-

Section-2(g) "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.

In the present case medical negligence is covered within the ambit of the above definition
of deficiency. Negligence per se is defined in Black’s Law Dictionary. Importing from
the same “conduct, whether of action or omission, which may be declared and treated as
negligence without any argument or proof as to the particular surrounding circumstances,
either because it is in violation of statute or valid municipal ordinance or because it is so
palpably opposed to the dictates of common prudence that it can be said without hesitation
or doubt that no careful person would have been guilty of it. As a general rule, the violation
of a public duty, enjoined by law for the protection of person or property, so constitutes.”

In Bhalchandra @ Bapu & Another v. State of Maharashtra1, the Supreme Court opined
that while negligence is an omission to do something which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do; criminal

1
AIR 1968 SC 1319

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 Negligence is the gross and culpable neglect or failure to exercise that reasonable and
proper care and precaution to guard against injury either to the public generally or to an
individual in particular, which having regard to all the circumstances out of which the
charge has arisen, it was the imperative duty of the accused person to have adopted. The
basic elements of Negligence are-
(a) Duty of Care
(b) Breach of Duty
(c)Cause in fact
(d)Proximate Cause and
(e) Damage.
To prove the case of negligence all these criteria must be satisfied and in cases of medical
negligence in India, the ambit of duty of care and proximate cause increases, as there are
lives involved in this situation.2 However, disproving any of the above essentials by the
Respondent will rebut the case and may be given a benefit of doubt by the court. In the
present case the wife of the petitioner gave birth to a premature female child at 29th week
weighing 1250gms. The infant was placed in an incubator in the intensive care unit for
about 25 days and was administered with 90-100% oxygen at the time of birth and
underwent blood exchange transfusion a week after birth. The baby had apneic cells
during first 10 days of her life. The Doctors discharged the baby because they ensured that
now the baby was now impervious as regards to any of the complications. However the
mother was asked to take the necessary precautions as explained clearly by the doctors
but mother failed to implement the guidelines due to which she got ROP. In fact the
mother was negligent because she was asked to attend post-natal O.P. on Tuesday but she
didn’t visit the doctor. The only advice given by Dr. Naik was to keep the baby isolated
and confined to the four walls of the sterile room so that she could be protected from
infection. The doctors also informed him that at the time of delivery and management, no

2
ARTICLE “IMPORTANT MEDICAL NEGLIGENCE CASES IN INDIA” ON IPLEADERS BLOG.

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 Deformities were manifested and that the mother was given proper advice which was not
followed.
The most pertinent fact here to be determined is that the Doctor mentioned in alarm signs
that the patient is supposed to attend post-natal O.P. on Tuesday. On the contrary the
patient showed up on 29th September 2018 instead of Tuesday. It was further stated that
all the precautions were taken by the doctors attending to her, even against ROP as
mentioned by them in the discharge summary.
Considering the aforementioned, it can be induced that there was no breach of duty. Hence there
was no medical negligence, for that reason no compensation can be sought.

In the case of Jacob Mathew v. State of Punjab & Another3, the Supreme Court while
dealing with the case of negligence by professionals also gave illustration of medical and
legal profession and observed as under:
“In the law of negligence, professionals such as lawyers, doctors, architects and others
are included in the category of persons professing some special skill or skilled persons
generally. Any task which is required to be performed with a special skill would generally
be admitted or undertaken to be performed only if the person possesses the requisite skill
for performing that task. Any reasonable man entering into a profession which requires a
particular level of learning to be called a professional of that branch, impliedly assures
the person dealing with him that the skill which he professes to possess shall be exercised
and exercised with reasonable degree of care and caution. He does not assure his client
of the result. A lawyer does not tell his client that the client shall win the case in all
circumstances. A physician would not assure 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. The only assurance
which such a professional can give or can be understood to have given by implication is
that he is possessed of the requisite skill in that branch of profession which he is practising

3
(2005) 6 SCC 1

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 And while undertaking the performance of the task entrusted to him he would be exercising
his skill with reasonable competence. This is all what the person approaching the
professional can expect. Judged by this standard, a professional may be held liable for
negligence on one of two findings: either he was not possessed of the requisite skill which
he professed to have possessed, or, he did not exercise, with reasonable competence in
the given case, the skill which he did possess. 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 necessary for every
professional to possess the highest level of expertise in that branch which he practices.
The Supreme Court also held that in some cases of medical profession the doctors are
equipped in certain situation where they have to make choices between a devil and the
deep sea. Sometimes in certain situation there must be greater risk in the operation but
higher chances of success and in another move there would be lesser risk but higher
chances of failure. So the decision, that which course would be follow will depend on facts
and circumstances of case.
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others4, this Court
noticed that in the very nature of medical profession, skills differs from doctor to doctor
and more than one alternative course of treatment are available, all admissible. Negligence
cannot be attributed to a doctor so long as he is performing his duties to the best of his
ability and with due care and caution. Merely because the doctor chooses one course of
action in preference to the other one available, he would not be liable if the course of
action chosen by him was acceptable to the medical profession.`

In Kusum Sharma & Ors vs Batra Hospital &Medical Research5, the Supreme Court
enumerated the following principles to be followed while deciding whether medical
professional is guilty of medical negligence:

4
(1996) 2 SCC 634
5
II (2010) SLT 73

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 I. Negligence is the breach of a duty exercised by omission to do
something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs, would do, or
doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The negligence to

be established by the prosecution must be culpable or gross and not the
negligence merely based upon an error of judgment.

III. The medical professional is expected to bring a reasonable degree of

skill and knowledge and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence
judged in the light of the particular circumstances of each case is what
the law requires.

IV. A medical practitioner would be liable only where his conduct fell
below that of the standards of a reasonably competent practitioner in
his field.

V. 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.

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 VI. The medical professional is often called upon to adopt a procedure
which involves higher element of risk, but which he honestly believes
as providing greater chances of success for the patient rather than a
procedure involving lesser risk but higher chances of failure. Just
because a professional looking to the gravity of illness has taken higher
element of risk to redeem the patient out of his/her suffering which did
not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his

duties with reasonable skill and competence. Merely because the
doctor chooses one course of action in preference to the other one
available, he would not be liable if the course of action chosen by him
was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if

no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that
the medical professionals are not unnecessary harassed or humiliated
so that they can perform their professional duties without fear and
apprehension.

X. The medical practitioners at times also have to be saved from such a

class of complainants who use criminal process as a tool for

Pressurizing the medical professionals/hospitals particularly private

hospitals or clinics for extracting uncalled for compensation. Such
malicious proceedings deserve to be discarded against the medical
practitioners.

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 XI. The medical professionals are entitled to get protection so long as they
perform their duties with reasonable skill and competence and in the
interest of the patients. The interest and welfare of the patients have to
be paramount for the medical professionals.

In the case of Dr. M. Kochar vs Ispita Seal 6the National Consumer Dispute Redressal
Commission (NCDRC) was confronted with the issue of failure in IVF procedure. The
complainant in the case complained of failure in IVF procedure and demanded
compensation from the Doctor on account of medical negligence. The National
Commission in the case held that “No cure/ no success is not a negligence”, thus fastening
the liability upon the treating doctor is unjustified.

In the instant case too there is no as such solution to prevent ROP. What can be done at
the maximum is to take precautions in case of complications. Moreover, if oxygen is
supplied more than required it may lead to abnormal growth of blood vessels,
unpredictable where will they grow as in a premature baby initially the growth of blood
vessels is slow and grows rapidly after 5 weeks of birth. Treatment happens in a row but
they were late when called for post-natal O.P. they were to be referred to Ophthalmologist
Pediatrician but they didn’t come on the prescribed date and when they came on Saturday
i.e., 30th October, 2018 no such complication was foreseen. Also it was written in the
discharge summary that appropriate precautions regarding ROP were taken.
A medical professional can be only held liable, when the standard of care is reasonably is less
than the reasonable care that should be taken from a competent practitioner in that field. No
negligence will apply on medical professional, when he performs his duty with the utmost care
that should be taken, and he had taken all the precaution.
Medical professional should not be harassed unreasonably and unwanted apprehension
and fear should not be created on the medical fraternity that they can give their best in
certain cases where it is required, they should be given some liberty in certain peculiar

6
FIRST APPEAL NO. 368 OF 2011, decided on December 12, 2017

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 Situation where they need to make their judgment without any apprehension freely. So
that it can be beneficial for the society.
The main defence is against the appellant’s claim for compensation that at the time of
delivery and management, no deformities were manifested and the complainant
was given proper advice, which was not followed. Therefore, the respondent is not liable
for compensation of medical negligence.

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 PRAYER

COUNSEL ON BEHALF OF RESPONDENT:-

Wherefore, in the light of the factual matrix, issues presented for adjudication,
contentions raised and authorities relied upon, it is most humbly prayed, that this
Hon’ble Commission may be pleased to;

1. Discharge the respondent of all the allegations and

2. Be exempted from the compensation asked for by the petitioner

And/or pass any other order that this Court may deem fit in the interest of Justice,
Equity and Good Conscience, for which the Defense, shall in duty bound, forever pray.

SD/-
(Counsel for the RESPONDENT)

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