IN THE HONOURABLE SUPREME COURT OF INDIA

NEW DELHI

CIVIL APPEAL NO......................../2010

IN THE MATTER OF

MISS LEENA ROY....................................................APPELLANT

VERSUS

Dr. KABIR SINGH and Ors.....................................RESPONDENT

GYANENDRA CHALIHA

(COUNSEL)

DATE

24.09.10

MEMORIAL ON BEHALF OF

RESPONDENT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS..............................................................................1

INDEX OF AUTHORITIES................................................................................2

STATEMENT OF JURISDICTION....................................................................4

STATEMENT OF FACTS...................................................................................6

ISSUES RAISED.................................................................................................7

SUMMARY OF ARGUMENTS.........................................................................8

ARGUMENTS ADVANCED..............................................................................9

PRAYER..............................................................................................................22

1

LIST OF ABBREVIATIONS

AIR..........................................................................ALL INDIA REPORTER

ALL ER...................................................................ALL ENGLAND REPORTER

CJI...........................................................................CRIMINAL LAW JOURNAL

HC...........................................................................HIGH COURT

HON’BLE...............................................................HONOURABLE

IPC..........................................................................INDIAN PENAL CODE

MCI.........................................................................MEDICAL COUNCIL OF INDIA

SC...........................................................................SUPREME COURT OF INDIA

SCC........................................................................SUPREME COURT CASE

2

INDEX OF AUTHORITIES

STATUTES:

GENERAL CLAUSES ACT, 1897

INDIAN MEDICAL COUNCIL(Professional Conduct, Etiquette &

Ethics)REGULATIONS, 2002

INDIAN PENAL CODE, 1860

BOOKS:

R.K.BANGIA, (2008), THE LAW OF TOTRS INCLUDING MOTOR

VEHICLE ACT AND CONSUMER PROTECTION ACT, ALLAHBAD LAW

AGENCY, 21ST EDITION.

RATANLAL & DHIRAJLAL, (2006), THE LAW OF TORTS, WADHWA

NAGPUR, 25th EDITION.

DUTTA D.C. , 2003TEXTBOOK OF GYNAECOLOGY,CENTAL BOOK

AGENCY,3RD EDITION,

BATUKLAL, (2009), THE LAW OF EVIDENCE, 17th ed., 2009, CENTRAL

LAW AGENCY, ALLAHABAD.

JOURNALS:

THE JOURNAL OF OBSTETRICS & GYNEOCOLOGY OF INDIA,MAY-

JUNE 2007.

INDIAN JOURNAL ON MEDICAL ETHICS

INTERNAT MATERIALS:

www.manupatra.com

3

www.indiankanoon.com

www.emedicine.com

CASES:

1. Samira Kohli v. Prabha Manchanda and Anr...............................................10

2. Marshell v. Curry.........................................................................................12

3. Jacob Mathew V. State of Punjab................................................................12

4. Hunter v. Hanley..........................................................................................12

5. Achutrao Haribhau khodwa v. State of Maharashtra...................................12

6. Bolam v. Friern Hospital Management Committee.....................................13

7 Michael Hyde and Associates v.J.D.Williams & Co. Ltd............................13

8. Baledeo v.Urmila.........................................................................................14

9. Himachal Pradesh v. Jai lal..........................................................................14

10. Hucks v.Cole and Anr.............................................................................................16

11. Kanhaiya Kumar Singh v. Park Medicare & Research Centre...............................16

12. Kusum Sharma and Ors v. ........................................................................16

Batra Hospital and Medical Research Centre and Ors

13. Roe and Woolley v. Minister of health......................................................18

14. John Oni Akerele v. The King...................................................................20

4

STATEMENT OF JURISDICTION

The appellant in the present suit has approached the Hon’ble Supreme Court of India under

article 133 of the Indian constitution read with section 109, O – XLV of Civil Procedure

code, 1908.The Respondent respectfully submit to this jurisdiction invoked by the Appellant.

All of which is urged in detail in the written submission and is submitted most respectfully

5

STATEMENT OF FACTS

(1)

Miss Leena Roy, a 29 years old model by occupation, suddenly developed severe pain in the

right side of her lower abdomen for which she approached Dr.KABIR SINGH, a renowned

surgeon with an impeccable record of 30 years. Dr.Singh diagnosed her as suffering from

acute appendicectomy.

(2)

During the surgery, Dr. Kabir had discovered a dermoid cyst in the right ovary of the patient.

Knowing that a dermoid cyst was dangerous to the health as it leads to torsion acute infection

of haemorrhage, leading an acute emergency condition, or even progress to cancer,

Dr.KABIR had removed the cyst along with the ovary.

(3)

After 3 days the patient, appellant developed pain again and it was realised from

ultrasonographic examination that her right ureter has been transacted and hence the urine

there from was leaking directly into the abdomen, leading to peritonitis & sepsis.

(4)

For the treatment of the same she had to undergone three more surgeries of where first two

were unsuccessful and the last one was successful. Because of these new problem she had to

remain hospitalised for six weeks and had to pay two lacks more.

(5)

Hence, Miss Leena Roy filed a suit before Bombay High Court and sued Dr.KABIR Singh

claiming inter-alias compensatory and punitive damages for:

Battery, claiming she had not consented to oophorectomy(removable of ovary)

Contingent damages claiming that such removable of ovary will prove to be difficulty

regarding conception after marriage

6

.

Contingent damages claiming for ugly scar which will affect her professional career.

Liquidated damages

Damages for negligence of Dr. Singh

Negligence based on res ipsa loquitur against the nurse and other doctors

During the trail, testimony of expert witness Rita Gonsalves (a renowned physician)was

introduced to establish that the required due care was not taken during the surgery. However

the testimony of the same was rejected by the Bombay H.C and the HIGH COURT gave the

decision in the favour of Dr.Singh but allowed her leave to appeal. Feeling aggrieved, Miss

Roy filed the appeal before the Supreme Court of India.

7

ISSUES RASIED

WHETHER A DOCTOR CAN USE HIS PRIFESSIONAL JUDGMENT TO

EXPAND THE SCOPE OF OPERATION, WHEN THE PATIENT WAS

INCAPABLE OF GIVING CONSENT?

WHAT ARE THE CRITERIA FOR DETERMINING WHETHER AN EXPART

WITNESS IS QUALIFIED AND ELIGIBLE TO TESTIFY REGARDING THE

STANDARD OF CARE IN THE MEDICAL FIELD?

DOES THE NUMBER OR RELATIONSHIP OF DEFEDANTS ALONE

DETERMINE WHETHER THE DOCTRINE OF RES IPSA LOQUITUR APPLIES?

WHETHER THE DEFEDANT SURGEON CAN CLAIM INNOCENCE ON THE

BASIS OF ACTION TAKEN IN GOOD FAITH?

8

SUMMARY OF ARGUMENTS

CIRCUMSTANCES AND CONDITIONS OF CASES ARE DECISIVE:

It is submitted that a surgeon can use his professional judgement to expand the scope of

surgery while the patient is incapable of giving consent on the following grounds:

Where there is an emergency situation which will be a threat to her life and health, the

surgeon can expand the scope of surgery without the consent of the patient.

During the surgery if the surgeon finds out new problem of which the patient had

already a sound knowledge but didn’t inform the surgeon, under such situation doctor

can expand his scope of surgery provided that he has done the surgery with sufficient

cause.

Criteria for determining the eligibility of expert witness with regard to ‘standard of

care’ in the medical field:

It is submitted that opinion of the expert witnesses is not mandatory for the court but

it always plays a pivotal role for leading the court into a conclusion. There should be

an impartial penal of experts which should be appointed by the court. They should

possess high professional qualifications and a very highly expertise of knowledge. So

that, both the parties will have faith upon the opinion of the penal.

9

APPLICABILITY OF THE DOCTRINE OF RES IPSA LOQUITUR:

It is submitted that the doctrine of res ipsa loquitur cannot be applicable to all the

defendants in the present case. Res Ipsa Loquitur means ‘things speak for

themselves’. It means

the impugned act must be of such a nature that there is no need to prove that the act in

question was the result of the act done by the respondent. This doctrine is a rule of

evidence not a rule of law. However there is a great chance of being misused of this

doctrine. It is because whenever any wrong or error of judgment takes place in

medical treatment the aggrieved party will take the plea of this doctrine against the

medical professionals and in this way it will bring end number of sues against the

medical professionals. Thus there should be certain norms for the applicability of this

doctrine.

INNOCENCE ON THE BASIS OF GOOD FAITH

It is submitted that in the present case the surgeon has operated patient with full good faith

and that is to with due care. He neither had any personnel interest nor did he have any

revenge against the patient. It is his prime duty to help the people and provide human service.

Thus the things which the surgeon had done in good faith with due care for the benefit of the

patient it would be very unfair and injustice if the surgeon will held to be liable for the same.

10

ARGUMENTS ADVANCED

CIRCUMSTANCES AND CONDITIONS OF CASES ARE DECISIVE:

A doctor is like other human being. If he has done any wrong he should be held liable for the

same. But while a doctor is conducting any surgery on patient and any wrong has been done

during the surgery` then his liability should be judged not on the basis of any perception or

any assumption but it must be judged with the background of the specific condition and

circumstances during the surgery.

Every human being of adult years and sound mind has a right to determine what should be

done with his body and the surgeon who performs the operation without his patient‘s consent,

omits an assault for which he is liable in damage. Thus the general practice is that no surgeon

uses his professional judgement to expand the scope of surgery when the patient is incapable

of giving consent. This general practice is based on the theory of ‘informed consent’ which is

defined in the case of Samira kohli v. Dr. Prabha Manchanda and Anr1 ‘Informed consent’

means it is the duty of the surgeon to have conversation with the patient about what type of

treatment is going to give upon him and what are the results of the said treatments and also its

complications inherent. But it is an erroneous definition or one sided definition. In realty

what is the necessity for the doctor to disclose about treatments. It is because if the patient

has any objection regarding the type of surgery the doctor will be informed about the same

along with that if the patient knows some fact of which doctor is not aware then the patient

will informed to the doctor that I have this type of problem also, so that any unexpected and

unwanted events or complication can be avoided. After all patients is the master of his/her

body. It is said that ‘only the wearer best knows where the shoe pinches’. VOLTAIRE, an

11

1 AIR 2008 SC 1385

eminent philosopher had once said , ‘doctors are men who prescribe medicines of which they

know little, to cure disease of which they know less, in human being of which they know

nothing’

Therefore ‘informed consent’ means a two sided conversation with regard to treatment

and any material fact which has not been discussed yet between the doctor and the patient. In

the present case the patient was aware about the fact that she had a dermoid cyst in the right

ovary and she had got two occasions to disclose the same:

1] The very first instance while she approached the doctor and describes her problem.

2] After diagnosing, the doctor informed her that she suffered from appendicitis and had to

undergo surgery of appendicectomy

On the two said occasions she had hidden the fact and that was too intentionally, hence there

is a concealment of fact and truth on her part and ultimately this led the surgeon to face an

emergency situation during the operation. Had the surgeon been informed about the said

problem he might have taken another alternative treatment.

On the other hand the surgeon had found the cyst in the right ovary which must be taken into

account. There are various kind of ovarian cyst of which dermoid is one of them. The effects

of dermoid cyst are as follows:

Dermoid cyst may become inflamed

Causes the ovary to twist i.e. ovarian torsion.

Ovarian torsion cuts off blood supply to the ovary resulting in ovarian ischemia and

necrosis and may cause severe pain.

Sometimes the covering of the ovary tears opens, or ruptures, releasing the cyst fluid into

the abdominal cavity and it may turn into cancer(malignant)

The above said problems are sufficient to invite an emergency situation.

In the present case the defendant here in respondent found the dermoid cyst during the

surgery – (unexpected situation) and that is too in the side of right ovary. Since the patient

12

had been suffering from right abdomen pain, it led the respondent to come into conclusion

that this may also to be a cause of her abdomen pain in the right side.

Secondly, if the dermoid cyst turns into malignant then there are no other alternative

treatments but to remove it with the ovary. In the present case knowing the fact that this

dermoid cyst can rupture at any time and it can also turn into malignant and in order to give a

permanent cure from her problem the respondent in good faith with due care had removed

cyst along with the ovary. On the other hand in the case of Marshell v. Curry2, the Supreme

Court of Canada observed that an unauthorised procedure may be justified if the patient’s

medical condition brooks no delay and warrants for the patient regain consciousness and take

a decision for himself. The view was also upheld by the Supreme Court of India in the case of

Samira kohli v.Dr.Prabha Manchanda & Anr.3 On the other hand it is well settled in various

cases that if a doctor adopts a certain procedure of treatment which may be differ from other

one does not affix negligence on the part of the doctor. In the Jacob Mathew v. State of

Punjab4 it was held ‘.....so long as it can be found that the procedure which was in fact

adopted was one which was acceptable to medical science as on that date, the medical

practitioner cannot be held negligent merely because he chose to follow one procedure and

not another and the result was a failure.’ This view was upheld in various cases like Hunter v.

Hanley, Achutrao Haribhau khodwa v. State of Maharashtra. 5

Therefore with these arguments it is humble submission that a surgeon can use his

professional judgement to expand the scope of surgery while the patient is incapable of

giving consent on the following grounds:

Where there is an emergency situation which will be a threat to her life and health, the

surgeon can expand the scope of surgery without the consent of the patient.

During the surgery if the surgeon finds out new problem of which the patient had

already a sound knowledge but didn’t inform the surgeon, under such situation doctor

13

2 1949(2)DLR4423 AIR2008SC13854 (2005 )6 SCC 15 1995 SC 200, AIR1996SC 2377

can expand his scope of surgery provided that he has done the surgery with sufficient cause.

Criteria for determining the eligibility of expert witness with regard to ‘standard of care’ in

the medical field:

With regard to second issue two questions come into mind:

Meaning of ‘standard of care’

Who is an expert witness?

In order to prove medical negligence on the part of surgeon, it is the burden of the

complainant to prove that the required ‘due care’ or ‘standard of care’ had not been taken by

the surgeon during the surgery. This due care has been described in the case of Bolam v.

Friern Hospital Management Committee6 in the following way:

“Where you get a situation which involves the use of some special skill or competence, then

the test as to whether there has been negligence or not is not the test of the man on the top of

a Clapham omnibus, because he has not got this special skill. The test is the standard of the

ordinary skilled man exercising and professing to have that special skill........A man need not

possess the highest expert skill; it is well established law that it is sufficient if he exercises the

ordinary skill of an ordinary competent man exercising that particular art”

In the case of Bolam v. Friern Hospital Management Committee. 7 SedleyL.J said that

Where a profession embraces a range of views as to what is an acceptable standard of

conduct, the competence of the defendant is to be judged by the lowest standard that would

be regarded as acceptable.

Thus the degree of care should not be a very high degree of care at the same time its degree

should not be very low also what law requires is that a proper balance between these two

parameters.

Who is an expert witness?

14

6 19571WLR582,5867 (2001)PNLR233CA

As per the section 45 of Indian Evidence, 1872 ‘when the court has to form an opinion upon a

point of foreign law or of science or art, or as to identify of handwriting or finger

impressions, the opinion upon that point of persons specially skilled in such foreign law,

science or art, or in question as to identify of handwriting or finger impressions are relevant

facts

Such persons are called experts.’

In order to establish the want of due care the appellant brought one physician, Dr. Rita

Gonsalves and she made a statement that required ‘standard of care’ was not given during the

surgery. However the statement made by the physician cannot be admissible on the following

reason:

The physician does not have any specialised skill in the field of surgery. To give an

expert opinion one has to have specific qualifications and a good amount of

experience in the specific field on question. By the application of these two norms one

expert can give his opinion. By simply saying that the requisite due care had not been

given is not enough.

The said witness was brought by the appellant. She may have some interest with her.

Thus the testimony of appellant’s witness cannot be admissible and accordingly the

appellant failed to prove that the respondent was negligent and the required standard

of care was not taken.

In the case of Baledeo v.Urmila 8 Supreme Court held that in order to be competent as

a witness the person needs not to have specialised in certain field of science or art. It

is sufficient so far as admissibility of evidence goes, if he or she has acquired

experience therein. In the present case the opinion of Obstetrician was not rejected

only because she was not specialised in gynaecology. However Supreme Court in the

case of state of Himachal Pradesh v. Jai lal 9 held that expert is one who has made the

15

8 AIR1979SC8799 1997 7SCC 280

subject upon which he speaks a matter of a part study, practice and observation and he

must have special knowledge of the subject.

Thus it appears before us that with regard to the eligibility of expert witness there is

no settled law. Thus the respondent humbly submits following criteria in this regard:

The opinion in medical field varies from doctor to doctor. There may be more than

one course of treatment which may be advisable for treating a patient. Thus instead of

placing reliance on the view of one expert there should be an impartial penal of

experts which should be appointed by the court. They should possess high

professional qualifications and a very highly expertise. So that, both the parties will

have faith upon the opinion of the penal. It is because though their opinion is not

mandatory for court but it always carries good weight which leads the judges to arrive

at a conclusion.

APPLICABILITY OF THE DOCTRINE OF RES IPSA LOQUITUR:

Firstly, the doctrine of res ipsa loquitur cannot be applicable to all the defendants. ‘The law in

dealing with cases of negligence of doctors does not recognise any doctrine of team liability

and the case of each doctor in the has to be considered separately.’ 10

Secon

dly, RES IPSA LOQUITUR means ‘things speak for themselves.’ So the impugned act must

be of such a nature that there is no need to prove that the act in question was the result of the

act done by the respondent. This doctrine is a rule of evidence not a rule of law. However

there is a great chance of being misused of this doctrine. It is because whenever any wrong or

error of judgment takes place in medical treatment the aggrieved party will take the plea of

this doctrine against the medical professionals and in this way it will bring end number of sue

against the surgeon. Thus there should be certain norms for the applicability of this doctrine.

In the case of Hucks v.Cole and Anr. 11 , Lord Justice Denning said ‘a medical practitioner

was not de held liable simply because things went wrong from mischance or misadventure or

through an error of judgment in choosing one reasonable course of treatment

16

10 RATANLAL & DHIRAJLAL, LAW OF TORTS, 2001 ed., p545.11 (1968)118NEW L J469

in preference of another. A medical practitioner would be liable only where his conduct fell

below that of the standards of a reasonably competent practitioner in his field.’ In the case of

Kanhaiya Kumar Singh v. Park Medicare & Research Centre12 it was held that negligence has

to be established and cannot be presumed. Moreover in the case of Kusum Sharma and Ors v.

Batra Hospital and Medical Research Centre and Ors13 Supreme Court has pointed out certain

guidelines for medical negligence which are as follows:

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.

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

17

12 1999 CPJ 13(NC)13 AIR2010 SC 1052

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.

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.

On the basis of the principle Res Ipsa Loquitur she claimed various compensations and

punitive damages. Therefore it is necessary to discuss such claims that whether such claims

are justified or not:

Firstly, she claims for contingent damages for the removable of her ovary and she said that it

will render difficulty in conception after marriage. But it is totally irrelevant it is because to

become pregnant one ovary is sufficient and she can give a 100% successful delivery.

18

Secondly while she was informed about the removable of ovary by the doctor she didn’t

show any anger or even a single objection. That means she was happy and satisfied at that

moment. Now only to give an extra strength to her claim she raised this issue as an objection.

In the case of Bolam v. Friern Hospital Management Committee14 the jury with regard to

prove negligence on the part of doctor observed that: ‘In order to recover damages for failure

to give warning the plaintiff must show not only that the failure was negligent but also that if

he had been warned he would not have consented to treatment’ This observation was

highlighted and cited in the case of Samira Kohli v. Dr.Prabha Manchanda and Anr.15 in Para

no-22.

Medical practice and its surgery are not an easy profession. It is not every body’s cup of tea.

Under medical science certain complications are so genuine and so risk full that chances of

injury to such organs become very rampant. Injury of ureter during pelvic surgery is one of

the commonest examples. Such complications are known as ‘known complications’. Quitman

U. Newell 16stated that during 1915-1938 there 3144 hysterectomy had done In Washington

university hospital and in most of the cases injury of ureter was most common.Dr.manavita

mahajan,17 said that52% - 82% of operative ureter injury occur during the gynaecological

operation and pelvic operations. Thus it would be unfair if we judge liability of doctor like an

algebraic formula that if surgery is failed then surgeon will be liable and if the surgery is

successful then there will no case of liability. In the present case the doctor had at last cured

the problem. Thus the appellant claim should be quashed down. In the case of Roe and

Woolley v. Minister of health18 Lord Justice Denning has said ‘It is so easy to be wise after

the event and to condemn as negligence that which was only a misadventure. We ought to be

on guard against it, especially in cases against hospital and doctors. Medical science has

conferred great benefits on mankind but these benefits are attended by unavoidable risks.

Every surgical operation is attended by risks. We cannot take the benefits without taking the

risk. Every advance in technique is also attended by risks.’

19

14 AIR 2008 SC 138515 (1957) 1 W.L.R.582 CA16 Professor, Department of Obstetrics & Gynaecology, Washington university & Hospital17 Senior Consultant, Obstetrician and Gynaecology, Max Hospital, Gurgaon, India18 (1954) 2 QB 66

Thirdly, the appellant also claimed that because of surgery she has got large scar and spot on

her abdomen which ultimately will affect her career. This claim is also presented in an

exaggerated manner. It is a very common knowledge that due to surgery the patient may get

scar or spot in the body. What the appellant is trying to say that the surgeon should not worry

about the life of the individual but he should be worried about such minor act like scar, spot,

mark on body etc. fourthly, she had not concluded any agreement with the surgeon that there

should not be any kind of mark, scar, mark left on her body after the surgery. Being as a

model it was her duty to inform to the doctor about such possibility. IN the name of informed

consent if we impose a great responsibility upon the doctor to disclose each and every minor

fact also then it will be totally unfair for the doctor and ultimately this informed consent will

tie the hands of doctor. Moreover section80 IPC States that nothing is an offence that is done

by accident or misfortune and without any criminal intention or knowledge in the doing of a

lawful act in a lawful manner by lawful means and with proper care and causation. Therefore

her claim on the basis of scar holds no value in the suit.

Lastly, she also claimed punitive damages. However it is a well known principle no act can

be criminal until & unless it is done with criminal intention (ACTUS NON REUM FACIT

REUM NISI MENS SIT REA).However in the present case there was no criminal intention on

the part of the doctor. The PRIVY COUNCIL in the case of John Oni Akerele v. The King 19stated that to affix criminal liability upon the doctor the degree of negligence must be

‘GROSS ’, it means very high. In the present case the acts of the does not prove any sign of

GROSS negligence and at the same time he had acted under good faith for the benefit of the

patient. Thus the claim of punitive damage is totally irrelevant in the present case.

INNOCENCE ON THE BASIS OF GOOD FAITH

In the present case the surgeon has operated patient with full good faith and that is to with

20

19 AIR1943 PC 72

due care. He neither had any personnel interest nor did he have any revenge against the

patient. It is his prime duty to help the people and provide human service as it is enshrined in

the CHAPTER ONE , Para 1.1.2 of Indian Medical Council (Professional Conduct,

Etiquette & ethics) Regulations,2002 that The prime object of the medical profession is to

render service to humanity; reward or financial gain is a subordinate consideration. Who-

so-ever chooses his profession, assumes the obligation to conduct himself in accordance with

its ideals. A physician should be an upright man, instructed in the art of healings. He shall

keep himself pure in character and be diligent in caring for the sick; he should be modest,

sober, patient, prompt in discharging his duty without anxiety; conducting himself with

propriety in his profession and in all the actions of his life .On the other hand Section 92 of

IPC states:

- Act done in good faith for benefit of a person without consent:

Nothing is an offence by reason of any harm which it may cause to a person for

whose benefit it is done in good faith, even without that person's consent, if the

circumstances are such that it is impossible for that person to signify consent, or if

that person is incapable of giving consent, and has no guardian or other person in

lawful charge of him from whom it is possible to obtain consent in time for the thing

to be done with benefit:

Provisos--Provided--

First.--That this exception shall not extend to the intentional causing of death,

or the attempting to cause death;

Secondly.--That this exception shall not extend to the doing of anything which

the person doing it knows to be likely to cause death, for any purpose other

than the preventing of death or grievous hurt, or the curing of any grievous

disease or infirmity;

21

Thirdly.--That this exception shall not extend to the voluntary causing of hurt,

or to the attempting to cause hurt, for any purpose other than the preventing of

death or hurt;

Fourthly -- That this exception shall not extend to the abetment of any offence,

to the committing of which offence it would not extend.

Moreover section 3(22) of the GENERAL CLAUSES ACT, 1897 states:

A thing shall be deemed to be done in "good faith" where it is in fact done honestly, whether

it is done negligently or not’.

Thus the things which the surgeon had done in good faith with due care for the benefit of the

patient it would be very unfair and injustice if the surgeon will be held to be liable for the

same. According to Lord Denning, ‘it would be a great disservice to the community at large,

if we impose liability on the doctors for each and everything that goes wrong’.

22

PRAYER

In the light of above facts stated, arguments advanced and authorities cited, the Respondent

humbly prays before the Hon’ble Supreme Court of India to be graciously pleased to adjudge

and declare:

That the appeal be dismissed and set aside

That the act of surgeon is fully innocence.

And pass any other orders which the court may deem fit in the light of justice, equity and

good conscience.

AND FOR THIS ACT OF KINDNESS YOUR LORDSHIP THE RESPONDENT

SHALL BE AS IN DUTY BOUND EVER PRAY

INTRA MOOT COURT COMPETITION ,BANARAS HINDU UNIVERSITY,

2010