IN THE SUPREME COURT OF ZABASTAIN

SPECIAL LEAVE PETITION

(UNDER ARTICLE 136 OF CONSTITUTION OF ZABASTIAN)

SLP NO. ……/OF 2020

IN THE MATTER OF

MRS. NANAKODA W/O MR. POKITO …. PETITIONER

VERSUS
HEALTH SQUAD …RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICE
OF THE SUPREME COURT OF ZABASTAIN

MEMORANDUM ON BEHALF OF THE RESPONDENT

1
 TABLE OF CONTENTS

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

INDEX OF AUTHORITIES………………………………………………………………. 4
CASES
STATUES

STATEMENT OF JURISDICTION……………………………………………………... 5

STATEMENT OF FACT……………………………………………………………………. 7

ISSUES INVOLVED…………………………………………………………………………. 8

SUMMARY OF ARGUMENTS………………………………………………………… 9

ARGUMENTS ADVANCED……………………………………………………………. 19

PRAYER………………………………………………………………………………………… 20

2
 LIST OF ABBREVIATIONS

CP Consumer Protection

IMC Indian Medical Council (Professional Conduct, Etiquette And

Ethics) Regulations

CPC Code Of Civil Procedure

S.C Supreme Court

Dr. Doctor

Pvt. Private

Ltd. Limited

Hon’ble Honourable

3
 INDEX OF AUTHORITIES
CASES:
 Dhakeswari Cotton Mills Ltd. vs. CIT West Bengal case
 Hardesh Ores Pvt. Ltd vs. M/S. Hede and Company
 Hardesh Ores Pvt. Ltd vs. M/S. Hede and Company
 Dr. A. J Ram vs. The Asiatic Government Security Life Assurance
Company Ltd.
 State of Haryana vs. Smt. Santra
 Mrs. Damyanti Devi vs. Dr. Indu Arora and Ors.
 Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole

STATUES:
 Indian Constitution,1950.
 Code of Civil Procedure, 1908
 Consumer Protection Act,2019
 Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002

4
 STATEMENT OF JURISDICTION

The respondent humbly submits to the jurisdiction of the Hon’ble Supreme Court of
Zabastian, under Article 136(1) of the Constitution Of Zabastian along with order 7 rule 11(a)
of Code Of Civil Procedure,1907.
The present memorandum sets forth the facts, contentions and arguments.

 Article 136(1) of Constitution Of Zabastian,1949-

136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory
of Zabastian.
 Order 7 rule 11 (a) of Code Of Civil Procedure,1907-
Rejection of Plaint-
(a) Where it does not disclose a cause of action – If the plaintiff does not disclose facts
that give the plaintiff right to seek relief against defendant, the facts that are
necessary to prove the damage caused to plaintiff

5
 STATEMENT OF FACT

1.The Health Squad is a very famous hospital in the Country of Zabastain with operations in
15 major cities. They have world class medical facility with amenities and also have world
renowned doctors as specialists and they work with peer dedication with the research
centre established after ‘father of medicine’-Dr. Coco-Mizzel (CM).

2- The Virus called No-Vido virus termed as NoVID19 was found in the regions of the origin
around the ports of Gavaic a small harbour in the city of Zulu, Zabastain. The government of
all the countries are trying everything in their power to control the consequences of virus on
preliminary stage. Even World Health Organisation (WHO) declared that there has been no
cure as yet, for No-Vido19 virus.

3- Dr. Mumuzobito (MZ) holds a degree of Medicine from University of Gazolia, Zabastain
(World famous University in Medical Science) and has been practicing medicine since last 40
years under the supervision of disciples of Dr. Coco-Mizzel (CM). Dr. MZ came up with a
detailed report on the study of the 100% cure on No-Vid19 after thorough experiments and
contribution with other famous names in the world of medicine. And the treatment for the
NoVID19 requires series of follow-ups which has been based on the principles of advanced
medicine.

4- The Hospital management took the consideration of the same and released in public
interest an advertisement claiming that they could cure No-VID19 through lazer beam
treatment. The price for the treatment is fixed at Rs. 50,000 by the management to be paid
by the patient.
Also, the management has released a press release, radio advertisements and TV
Commercials giving out the details of the treatment.

5- Mr. Pokito (PK), a Professional in the field of Management and who also was a chain
smoker. He was a part of the delegation as he headed to the City of Zulu for a business trip
in the mid of January for a week came back on 1/02/2020. By 09/02/2020 he developed
rashes on skin with extreme fever and cough. He went for a regular check-up at Health
Squad where he tested positive for the No-VIDO19 virus at preliminary stage. He was
attended by the Dr. MZ and he left him in the observation wing which was totally isolated
from the other’s part of the hospital. There was a sponsored LCD set which was running
hospital advertisements, and Mr.PK came across was about the treatment to cure No-VID19
by Dr. MZ.

6
6. Mr.PK took the whole account where he consulted the team of Doctors whom provided
him with all the details about the whole treatment and the procedure related to it. After
understanding the complex procedure, Mr.PK signed the consent letter agreeing to comply
with all the conditions suggested by the team doctors.
One essential conditions of the treatment were that Mr.PK should not consume any kind of
alcoholic/narcotic or tobacco substance during and one month after the treatment.

7- On 20/02/2020 the team of the doctors including Dr. MZ started Mr. PK’s treatment
followed by basic preliminary screening, and treatment through radiation after which Mr.
PK got cured following one week of the treatment and he was told to follow the instructions
given by the Dr’s for one month and visit the hospital every week for the review. Suddenly,
in the third week of the supervision, he developed sudden pain in the lungs and again got
admitted to the hospital. While undergoing the treatment Mr.PK did not respond to the
treatment and on 12/03/2020 Mr.PK started feeling un-usual pain in lungs and other parts
of the body more particularly the head. During this, his body gave up and he had a brain
stork and he collapsed and also got paralyzed.

8- His wife Ms. Nanakoda filed the suit against the hospital authorities Before the District
Consumer Redressal Forum for Rs.20,00,000 of compensation. Wherein the hospital
authority has claimed that the patient didn’t follow the essential condition, and hence the
hospital is not liable. The District forum held that the hospital is liable and granted the
compensation of Rs.20,00,000, aggrieved with the said order the hospital has approached
the State Commission. State Commission reversed the decision of the District Forum. And
held that Hospital is not liable and upheld the allegations of Hospital.

9- Aggrieved by the decision of the State Consumer Redressal Commission, Ms. Nanakoda
approached the National Consumer Redressal Forum. The National commission also upheld
the decision of State Commission and dismissed the petition filed by Mrs. Nanako.

7
 ISSUES RAISED

1.WHETHER THE APPEAL BROUGHT BEFORE THE HON’BLE COURT IS MAINTAINABLE OR

NOT?

1.1 Jurisdiction of S C cannot be invoked.

1.2 The appellant has no locus standi to approach the Hon’ble Court.

2. WHETHER THE ADVERTISEMENT COME UNDER THE STANDARD FORM OF CONTRACT?

2.1 Whether the advertisement published by the hospital management is valid or not?

2.2 Whether the contract of service exits between the hospital authorities and Mr. PK?

3. WHETHER THE TREATMENT COME UNDER THE PERVIEW OF MEDICAL NEGLIGENCE?

3.1 Whether Dr. MZ is liable for professional negligence or not?

3.2 Whether the hospital management is directly or vicariously liable for the acts of the
Dr.MZ?
3.3 Whether there was error of judgement?

4. WHETHER MRS. NANAKONDA SHOULD BE ENTITLED FOR ANY COMPENSATION OR NOT?

8
 SUMMARY OF ARGUMENTS

1. WHETHER THE APPEAL BROUGHT BEFORE THIS HON’BLE COURT IS MAINTAINABLE

OR NOT?

It is humbly submitted that the appeal made in furtherance to the Hon’ble Supreme Court
that the appeal filed by Mrs. Nanakoda is not maintainable as Special Leave cannot be
granted when substantial justice has been done and no exceptional or special circumstances
exist for case to be maintainable. Further, no substantial question of law is involved in the
present case and interference is based on pure question of fact which is entitled to be
dismissed. Also the appellant has no locus standi to file an appeal before the Hon’ble
Court.The suit shall rightly be dismissed.

2. WHETHER THE ADVERTISEMENT COME UNDER THE STANDARD FORM OF CONTRACT?

It is most humbly summited before the Hon’ble Court that the advertisement published by
the hospital management come under the standard form of contract because firstly, the
advertisement published is valid and proper and secondly, that the contract for service exits
between the hospital authorities and Mr. PK.

3. WHETHER THE TREATMENT COME UNDER THE PERVIEW OF MEDICAL NEGLIGENCE?

It is humbly submitted before the Hon’ble Court that the hospital management and Dr.MZ is
not liable for the injury caused to Mr. PK as there is no professional negligence seen on part
of Dr. MZ as he didn’t breach the duty towards Mr.PK. Also, the hospital authorities are not
directly or vicariously liable as the patient was provided with all the facilities and no
negligence on part of the doctors. And there is no error of judgment as Dr.MZ performed
the treatment with standard amount of care with all his requisite skills.

4. WHETHER MRS. NANAKONDA SHOULD BE ENTITLED FOR ANY COMPENSATION OR NOT?

It is humbly submitted before the Hon’ble Court that the appellant is not entitled for any
sought of compensation as from all the issues it has been clear that the hospital authorities
are not liable for any action claimed against them. Thus, the petition is entitled to be
dismissed.
9
 ARGUMENTS ADVANCED

1. WHETHER THE APPEAL BROUGHT BEFORE THIS HON’BLE COURT IS MAINTAINABLE OR

NOT?

1.1 Jurisdiction of S.C cannot be invoked.

It is submitted that the appeal filed by the appellant Mrs. Nanakoda is not maintainable as
Special Leave cannot be granted when substantial justice has been done and no exceptional
or special circumstances exist for case to be maintainable. Also, it will not be granted when
there is no failure of justice or when substantial justice is done, though the decision suffers
from some legal errors. Article 136 does not give a right to a party to appeal to the S.C
rather it confers a wide discretionary power on the S.C to interfere in suitable cases.
In the instant matter, no exceptional and special circumstances have been seen and
substantial justice has been done by the lower court. Also, there is no failure of justice by
the lower court by dismissing the petition filed by the appellant and upheld the allegations
of hospital.
Hence, it is submitted that the case is entitled to be dismissed on the above stated ground
only.
Further, no substantial question of law is involved in the present case and interference is
based on pure question of fact which is entitled to be dismissed. This Court had laid down
the test which says if the general principles to be applied in determining the question are
well settled and there is a mere question of applying those principles the question would
not be a substantial question of law. It might involve question of Law but not ‘substantial’
question of law. The present case doesn’t involve such ‘substantial’ question even if we
assume that it involves question of law.
In the instant case, when National Commission comes to a conclusion after seeing all the
facts and circumstances of the case, then SC interference with the same is uncalled for.
Hence, it is submitted that on account of the fact that the position is well-settled by this
court in its earlier decisions31, no substantial question of law is involved in the present case.
In Dhakeswari Cotton Mills Ltd. v CIT West Bengal case1, it was observed that, it is not
possible to define the limitations on the exercise of the discretionary jurisdiction vested in
this Court under Article 136. It being an exceptional and overriding power, naturally, has to
be exercised sparingly and with caution and only in special and extraordinary situations. It is
contended by the Respondent that the appeal doesn’t involve any substantial question of
law rather it involves pure question of fact and hence, is not maintainable.

1
Dhakeswari Cotton Mills Ltd. v CIT West Bengal, AIR 65, 1955
10
1.2 The appellant has no locus standi to approach the Hon’ble Court.
It is humbly submitted before the Hon’ble court that the appellant has no locus standi to file
such a suit and same is rejected as per order 7 rule 11(a) of CPC.
Order 7 Rule 11(a) of CPC,1907 discusses Rejection of Plaint. CPC, 1907 contains a provision
in Order 7 Rule 11 of the code that whenever a plaint is filed in any civil court for any
claim/compensation to be recovered from the opposite party it can be rejected by the
court.
(a) Where it does not disclose a cause of action – If the plaintiff does not disclose facts
that give the plaintiff right to seek relief against defendant, the facts that are
necessary to prove the damage caused to plaintiff.
Order II Rule 2 of the Code
The term Cause of Action has been mentioned in Order II Rule 2 wherein it has been stated
that for the purpose of instituting a suit, the cause of action needs to be explicitly
mentioned in the plaint. If it has not been mentioned, then the plaint will be rejected by the
Court.
In the instant case, it has been clearly seen from the facts of the case that no damage is
caused to the plaintiff who filed case on behalf of her husband. As Mr. Pokito (herein
referred as PK) with his free consent approached to the hospital for the treatment to get
cure from the No-Vido virus. And Dr. Mumuzobito (herein referred as MZ) while performing
the treatment has taken standard amount of care and has provided him with world class
facilities during the treatment. Also, Mr. PK got cured when he was discharged from the
hospital with necessary essential that need to be followed by him. And he was fully fit and
fine in first and second week of supervision. But on third week due to his own negligence by
not following the essential given to him, he got brain stroke and got paralyzed. Hence,
resulting in no damage caused due to the actions of the hospital.
In the case Hardesh Ores Pvt. Ltd vs M/S. Hede and Company2, the S.C dismissed the
appeal on the merit that there is no cause of action arises and the appellant has no locus
standi before the court.
Thus, no cause of action arises as no right of petitioner has been infringed in the present
case and the appellant has no locus standi before the Hon’ble Court. The suit is entitled to
be dismissed under order 7 rule 11 (a) of CPC, 1907
Therefore, after examining the case on the touch-stone of the afore-noted legal principles, it
is humbly submitted before this Hon’ble S.C of India that the special leave petition filed by
appellant is not maintainable. Also, the appellant has no locus standi. And in the light of the
above mentioned authorities, the impugned order of the National Commission deserves to
be affirmed and the National Commission didn’t err in dismissing the appellant’s petition.

2
Hardesh Ores Pvt. Ltd vs M/S. Hede and Company, SLP(C) NO.106
11
2. WHETHER THE ADVERTISEMENT COME UNDER THE STANDARD FORM OF CONTRACT?

2.1 Whether the advertisement published by the management of the hospital is valid or
not?
It is humbly submitted before the Hon’ble Court that the advertisement published by the
management is valid and proper as it doesn’t violate any law regarding it.
As section 21(6) of CP ACT, 2019 states that-
(6) No person shall be liable to such penalty if he proves that he had published or arranged
for the publication of such advertisement in the ordinary course of his business.
In the instant matter, it is explicitly mentioned in the facts that the advertisement was
published by the Hospital management in public interest that they could cure No-VID19
through lazer beam treatment. Also, Dr. MC Mehta has pointed out in his article that
advertisement is allowed in case of hospital because running a hospital is a business as
compared to practicing medicine which is profession. Thus, the hospital was acting in
ordinary course of his business while publishing the advertisement giving out only the
details of the treatment under section 21(6) of CP ACT,2019.
And chapter 6 of IMC, 2002 states detail about unethical act’s in advertisement as-
6.1.1- A physician shall not make use of him / her (or his / her name) as subject of any form
or manner of advertising or publicity through any mode either alone or in conjunction with
others which is of such a character as to invite attention to him or to his professional
position, skill, qualification, achievements, attainments, specialities, appointments,
associations, affiliations or honours and/or of such character as would ordinarily result in his
self-aggrandizement.
6.1.2- Printing of self-photograph, or any such material of publicity in the letter head or on
sign board of the consulting room or any such clinical establishment shall be regarded as
acts of self-advertisement and unethical conduct on the part of the physician.
In the instant case, it is nowhere seen in the facts that the advertisement was published by
the Dr. MZ rather it was published by the hospital management in public interest so that the
virus No-Vido can be cured at the preliminary stage and the cases of No-vido19 can be
reduced in the country. And the facts clearly states that the advertisement published on T.
V, radio or in press release gives out only the details of the treatment and not about the
details of the Dr. MZ containing his photographs, letter head or sign board. Thus, the
advertisement published was not made by Dr. MZ to gain attention to him or on his
professional skills or position rather it was published by the management in good faith as
there was no cure yet, for No-Vido19 virus. Also, as mentioned in the facts that Mr. PK came

12
for the treatment by his own on sawing advertisement and neither the hospital or doctors
recommended about the treatment to Mr. PK. Thus, notwithstanding anything contained
under chapter 6 of IMC,2002.
In the case Mr. K Kathirmathiyon vs Ministry Of Health and Family3, the court allowed the
appeal and held that the Hospitals do not come under the purview of MCI and had not
violated any code of conduct/ethics because of their advertisement published. And there is
no specific compilation about action taken for issue of advertisements.
It is humbly submitted that there was no misleading advertisement published by the
hospital management and was in good faith of public interest as to cure from the vide
spreading disease No-Vido19 as the treatment was very effective and a unique. Also, the
advertisement does not publish any details of the Dr. And only about the treatment. And it
has also been seen from the facts that the advertisement was not published by Dr. MZ on
behalf of the hospital to gain professional position. And Mr. PK came across the
advertisement and approached for the treatment, doctors never recommend to him. Thus,
the hospital authorities cannot be made liable for publishing misleading advertisement as
there is no cause of wrong published in the advertisement.

2.2 Whether the contract for service exits between the hospital authorities and Mr. PK?
It is humbly submitted before the Hon’ble Court that there exists a contract for service
between the hospital authorities and Mr. PK.
A contract for services imply a contract by which one party undertakes to render services
e.g. professional services, to or for another in the performance of which he is not subject to
detailed direction and control but exercise professional skills and uses his own knowledge
and desertion.
Also, contract for service is included in CP Act,2019 for consideration from the ambit of the
definition... of service under section 2 (42) of CP Act, 2019 which states as-
(42) "service" means service of any description which is made available to potential users
and includes, but not limited to, the provision of facilities in connection with banking,
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.
As there are two-key element’s required for a contract of service to be initiated-
1-Contract-There must be a written or non-written contract between the physician and
patient. This may be initiated when a patient seeks care and the physician agrees to take
care of the patient.

3
Mr. K Kathirmathiyon vs Ministry Of Health and Family,2011
13
In the instant case, it has been clearly seen from the facts that there was a written contract
between the parties as the patient, Mr. PK being a capable person understands and agrees
to all the terms and conditions told to him by the team of the doctors for the treatment
with reasonable amount of consideration, i.e., Rs.50000 for the services provided by the
hospital.
2-Consent-The consent given by the patient to the physician or institution must be a free
consent and not obtained by coercion.
In the instant matter, Mr.PK has given his free consent to the hospital for the treatment to
cure from the consequences of No-Vido as the facts explicitly mention that Mr. PK came
across the advertisement and approached the doctors for the treatment and doctors never
recommend him for the treatment. Also, Mr. PK has consulted the team of Doctors who
provided him with all the details about the whole treatment and the procedure related to it.
After understanding the complex procedure, Mr.PK with his happiness signed the consent
letter agreeing to comply with all the conditions suggested by the team doctors.
Hence, both the two elements are met in the instant case and thus there exist contract for
service between the parties with consideration amount Rs. 50000 which is reasonable for
the lazer beam treatment given to the patient.
In the case Dr. A. J Ram vs. The Asiatic Government Security Life Assurance Company Ltd. 4,
the SC lays down the proposition that the services rendered by a private medical
practitioner and private medical institution for consideration fall within the ambit of service
under section 2(1) (o) of CP Act, 1985 and constitute a ‘contract for services'.
And it is humbly submitted that the hospital authorities cannot be made liable for the injury
caused to the patient as he signed the letter containing terms and conditions about the
complex procedure involved in the treatment and also he was cured when he was
discharged from the hospital provided with necessary essential to be followed. Also, Mr. PK
was well fit on first and second week of supervision. But on the third week of supervision
due to the negligence on part of Mr. PK he sustained injuries as he didn’t follow the
essential told to him by the teams of doctor that Mr.PK should not consume any kind of
alcoholic/narcotic or tobacco substance during and one month after the treatment. And Mr.
PK being a chain smoker as mentioned in the facts have consumed any intoxicant
substances which got him paralyzed.
Thus, there is no breach of contract on part of the hospital and is not liable for any
compensation to be paid to the appellant.

4
Dr. A. J Ram vs. The Asiatic Government Security Life Assurance Company Ltd.
14
3. WHETHER THE TREATMENT COME UNDER THE PERVIEW OF MEDICAL NEGLIGENCE?

3.1 Whether Dr MZ is liable for professional negligence or not?

It is humbly submitted before the Hon’ble Court that Dr MZ is not liable for professional
negligence in any manner. In an action for negligence, the following essentials are required-
1-The defendant owed a duty of care to the plaintiff.

2-The defendant made a breach of that duty.

3-The plaintiff suffered damage as a consequence of that breach.
As, the assurance of a professional subsists that he would be exercising his skill with
reasonable competence, wherein he would be held liable for the negligence of either not
possessing the requisite skills which he professed to have possessed or not exercising with
reasonable competence in the given circumstances. A professional man owes to his clients a
duty in tort as well as in contract to exercise reasonable care in giving advice or performing
services. Though doctors can be found guilty only if he falls short of the standard of
reasonable skilful medical practice. 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.
And in the instant case, Dr MZ owed a duty towards Mr. PK and while treating the patient
Mr. PK has exercised his skill with reasonable competence and took all the standard of care
while undergoing the treatment and also he advised Mr. PK with the complex procedure of
the treatment and the essentials which needs to be followed by him. Thus, he has not
breached the duty of care towards the patient.
No sensible professional would intentionally commit such an act or omission which would
result in loss or injury to the patient as the professional reputation of the person is at stake
and also it is unethical. In the instant matter, it is pertinent to note that Dr. MZ possess the
degree in Medicine from University of Gazolia, Zabastain (World famous University in
Medical Science) and has been practicing medicine since last 40 years. So, the competence
cannot be challenged as to the inability in operating the patient due to lack of skill or
practice. Thus, the Dr. MZ cannot be made liable for any damages caused to Mr. PK as the
treatment has cured the patient when he was discharged from the hospital.

In State of Haryana vs. Smt. Santra5, the Supreme Court held that it is the duty of every
doctor to act with a reasonable degree of care. However, no human in this world is perfect
and even specialists make mistakes, a doctor can be made liable only if he fails to act with
such reasonable care that every doctor with ordinary skills would be able to do.

5
State of Haryana vs. Smt. Santra,2000
15
 Thereby considering the above parameters, it is contented that Dr. MZ acting in a
professional manner, trying his best to redeem the patient out of his suffering took the step
of operating the patient for which he could not be made liable as the negligence in such
instances is based upon the best judgment of the practitioner considering the relevant
precautionary measures taken in the due course which needs to be considered by Court
before implementing such liability.

3.2- Whether the hospital management is directly or vicariously liable for the acts of the Dr.
MZ?
It is humbly submitted before the Hon’ble Court that When it comes to the liability of a
hospital, it can be held for medical negligence either directly or vicariously.
1-A hospital’s direct liability arises when the hospital itself was deficient in providing the
safe and suitable environment to the patient as promised.
And in the present case, it is explicitly mentioned in the facts that the hospital “Health
Squad” being a famous hospital is well equipped with world class medical facility and
amenities. So this proves that there are no chances of improper maintenance of hospital
resulting to Mr. PK's injury. Also the management provided safe and suitable environment
as the patient was kept in observation wing which was totally isolated from the other’s part
of the hospital with full facilities.
2- Vicarious liability of hospitals in medical negligence cases arises when an employee has
acted negligently and the hospital is indirectly liable for its employee’s actions.
The rule of vicarious liability in medical negligence is applied to the hospitals because
hospital is the employer and the doctors are its employees and the rule of vicarious liability
states that for negligence cases of employees an employer is liable thus the rule arises the
vicarious responsibility in hospitals.
In the instant matter, it has been clearly seen from the fact that Dr MZ has performed the
treatment with proper requisite skills and has taken due amount of standard of care without
any negligence as the treatment was based on a detailed report on the study of the 100%
cure on No-Vid19 after thorough experiments and contribution with other famous names in
the world of medicine and was under the supervision of disciples of Dr. Coco-Mizzel (CM).
In the case Mrs. Damyanti Devi vs Dr. Indu Arora and Others6, the court dismissed the
appeal filed by the appellant and held that since there is no negligence on part of the
management as there were full facilities available and as doctor was a specialized surgeon
had taken due care, the hospital cannot be made directly or vicariously liable.

6
Mrs. Damyanti Devi vs Dr. Indu Arora and Others
16
It is humbly submitted that the hospital authorities are not liable directly or vicariously to
the appellant as the hospital management has provided all the world class facilities to the
patient and Dr. MZ has taken due care while undergoing the treatment without any
negligence. And the patient was cured when he was discharged from the hospital. Also, the
patient was well fit in the first and second week of the supervision. But on the third week of
supervision, due to his own negligence of consuming any intoxicant substance as the patient
is a chain smoker as mentioned in the facts and by not following the essentials told to him
seriously that Mr.PK should not consume any kind of alcoholic/narcotic or tobacco
substance during and one month after the treatment, he sustained injury, had brain stroke
and got paralyzed. And the orders by the national commission and the state commission
stand affirmed.

3.3 Whether there was error of judgement?

It is humbly submitted before the Hon’ble Court that even if there is error of judgement on
part of respondent they cannot be made liable as they have acted with reasonable care and
caution while undergoing the treatment. The error of judgement is a mental mistake where
doctor makes mistake treating patients which is called as wrong diagnosis. And medicine is
so complex area where no standard can be set to judge the doctors and they cannot be
made liable. There are no strict guidelines to practice medicine where they cannot
guarantee the outcomes because the treatment of patient different from individual.
In medical negligence it is not important whether the doctor is careless used judgement,
perfect outcomes or whether judgement used is reasonable but it is reasonable to see
whether the physician followed standard of care. The physicians are not liable when there is
an errors of judgement provided the error of judgement should not be a result of his
negligence.
In the Instant case, Dr. MZ has exercised requisite skills and has taken due care while
performing the treatment. Also the patient was fully cured when he was discharged from
the hospital. And he was well fit in the first and second week of supervision. But on third
week of supervision, due to his own negligence, the patient sustained injuries because he
didn’t follow the essentials told to him by doctor that Mr.PK should not consume any kind of
alcoholic/narcotic or tobacco substance during and one month after the treatment. And Mr.
PK being a chain smoker as mentioned in the facts have consumed intoxicant substances.
Hence, due to the negligence of the patient he got paralyzed and had brain stroke and there
is no error of judgement on part of the Dr. MZ as he was working under the supervision of
disciples of Dr. Coco-Mizzel (CM) a research centre.
In the case Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole 7, the SC held that if a Dr
has adopted a practice that is considered “proper” by a reasonable body of medical

7
Laxman Balkrishna Joshi vs Dr. Trimbak Bapu Godbole
17
professionals who are skilled in that particular field, he or she will not be held negligent only
because something went wrong.
It is humbly submitted that there is no negligence on the part of the management and Dr.
MZ and the facts doesn’t prove that there is any mistake on part of the Dr. while undergoing
the treatment of Mr. PK as it was done with reasonable care and caution and with the free
consent of the patient. Hence, the management and Dr MZ cannot be made liable even if
there is error of judgement as no negligence is seen on part of the respondent.

18
4. WHETHER MRS. NANAKONDA SHOULD BE ENTITLED FOR ANY COMPENSATION OR NOT?

From all the above issues, we can state that the proceedings in the lower court, i. e., the
National Commission and the state commission are proper and the order passed by them
deserves to be affirmed. Also there is no error found on dismissal of the appeal filed by the
appellant.
There is no medical negligence on part of the hospital as the advertisement was published
in public interest with good faith to cure from the virus No-Vido and control the vide spread
of the virus. And the advertisement gives out only the details of the treatment. Also, there
is no professional negligence seen on the part of Dr. MZ as he performed the treatment
after thorough experiments and with standard amount of care. Thus, we cannot make
hospital directly or vicariously liable and direct them to pay huge amount of compensation
which is unreasonable.
The patient, i.e., Mr. PK have given his free consent after knowing that the treatment
involves complex procedure and agreed to all the terms and conditions contained in the
letter. Thus, there lies a contract for service between Mr. PK and hospital authorities. As
Mr. PK due to his own negligence by not following the essential conditions told to him as
being a chain smoker caused injury and got paralyzed. There was no breach of contract
from the respondent side as the patient was cured when he was discharged from the
hospital and also was fit and healthy in first and second week of supervision. Therefore,
directing hospital authorities to pay compensation would be unreasonable.
All the above stated issues are in the favour of the respondent and prove that they are not
liable in anyway.
Hence, the appellant is not entitled for any compensation under the Hon'ble Court and the
appeal made should be dismissed on the above stated ground.
On behalf of Health Squad, respondent, I pray to the Hon’ble S. C to state hospital
authorities as acquit.

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 PRAYER

WHEREFORE IN THE LIGHT OF FACTS PRESENTED ISSUES RAISED,

ARGUMENTS ADVANCED, AND AUTHORITIES CITED THE PETITIONER
HUMBLY SUBMIT THAT THE HONORABLE SUPREME COURT BE PLEASED
TO ADJUDGE AND DECLARE THAT:

1. The petition filed by the appellant is not maintainable.

2. There was no misleading advertisement and there was breach of contract on
part of Mr.PK.
3. The negligence was on part of Mr.PK.
4. The appellant should not be entitled for any compensation.

AND/OR PASS ANY OTHER ORDERS OR RELIEF THAT THIS HONORABLE

SUPREME COURT MAY DEEM FIT AND PROPER IN INTEREST OF JUSTICE,
EQUITY AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL BE DUTY BOUND

FOREVER PRAY.

Respectfully Submitted

Sd/-
Counsel for respondent

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