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Submitted by:
VAIBHHAV
VIJAYVARGIYA
BEFORE THE
HONBLE DISTRICT COURT OF MADHYA PARDESH
SHIVA BAI...PLAINTIFF
V.
TABLE OF CONTENTS
Index OF AUTHORITIES
STATUTES REFERRED
CASES REFERRED
BOOKS REFERRED
WEBSITE REFFERED
LIST OF ABBREVIATIONS
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
ISSUES INVOLVED
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
PRAYER
INDEX OF AUTHORITIES
Statutes:
Cases:
Books:
Websites:
Manupatra.com
SCC ONLINE
WEST LAW
LIST OF ABBREVIATIONS
& And
Edn Edition
ICA Indian Contract Act
Honble Honorable
AIR All India Radio
V Versus
U/s Under section
CCP Code of civil procedure
STATEMENT OF JURISDICTION
ISSUE 3: Is the hospital as well as doctor both are justified for their
accusation?
SUMMARY OF ARGUMENT
It is humbly submitted before the court that there was violation of right
U/s 2(1) (g) of Consumer Protection Act, 1986 and the plaintiff can sue the
defendant under Consumer Protection Act 1986. Dr. Jamjhute is liable for his
negligence as he went to abroad before giving whole service to the smt shiva bai
II
Yes there was a fiduciary relationship between dr. jhamjhute and shiva bai. Shiva
bai was his patient and dr. jhamjhute was his doctor so there was a relationship
of doctor and patient, there was breach of fiduciary duty from dr. jhamjhute
III
Is the hospital as well as doctor both are justified for their accusation?
Yes both hospitals as well as doctor are justified for their accusation
because there was medical negligence and both are liable for the
negligence.
ARGUMENTS ADVANCED
It is well known that a doctor owes a duty of care to his patient. This duty
can either be a contractual duty or a duty arising out of tort law. In some
cases, however, though a doctor-patient relationship is not established, the
courts have imposed a duty upon the doctor. In the words of the Supreme
Court every doctor, at the governmental hospital or elsewhere, has a
professional obligation to extend his services with due expertise for
protecting life
The liability of a doctor arises not when the patient has suffered any injury,
but when the injury has resulted due to the conduct of the doctor, which
has fallen below that of reasonable care. He is liable for only those that are
a consequence of a breach of his duty.
Hence, In the case of Shiva Bai VS Dr Jhamjhute, Dr Jhamjhute was
negligent and there was fall of reasonable care from the side of Dr
Jhamjhute and the hospital.
As per the facts-
10 days after the operation, even though her medical condition was very bad and
before the stitches were removed, she was discharged by the Petitioner. When she
again went back to the hospital after a few days she was advised to come after two
months since Dr.Jamjhute had gone abroad. she sought treatment in the Life Line
Hospital where an operation was performed and it was discovered that half a meter of
sponge has been left in her stomach during the hysterectomy It was because of this
that her condition had deteriorated and her intestines had developed gangrene and
there was pus formation. To save her life, a part of her intestine was removed
Dr Jhamjhute have violated section 2(g) and 2(o) under consumer protection act-
Section1(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.
(o) "service" means service of any description which is made avail-
able to potential users and includes, but not limited to, the provision
of facilities in connection with banking, financing insurance,
transport, processing, supply of electrical or other energy, board or
lodging or both, housing construction, 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;
Case law-
DR. P JhamJhute v Shiva Bai, 2011
Judgement by Veenita rai
We are not convinced that the Respondent was not given due care by the Petitioner
during her 19 days stay in Getwell Hospital. We, therefore, do not agree with the
finding of the State Commission that the Petitioner failed to provide due care which
the Respondent should have received and therefore set aside the order of the State
Commission directing the Petitioner to pay a sum of Rs.25,000/- to the Respondent.
The revision petition is allowed with no order as to costs.
II
Yes there was a fiduciary relationship between dr. jhamjhute and shiva bai.
Fiduciary duty is the highest standard of care at either equity or law. A fiduciary is
expected to be extremely loyal to the person to whom he owes the duty such that there
must be no conflict of duty between fiduciary and principal, and the fiduciary must not
profit from his position as a fiduciary
According to the fiduciary duty-
Duty of Care: The fiduciary owes a duty of care toward the principal. This means they are legally
required to be educated and informed about the laws and issues regarding the procedures, conditions,
and surgeries they are administering. If they are not adequately informed, they may not be legally
liable if they did not have enough time to obtain the relevant information. However, doctors must also
have a critical eye when processing medical information and have a sound method of evaluating the
credibility of the information.
Duty of Competence: A doctor must be accredited, receive the state and federally mandated
education for his or her role, must stay up to date on licensing, and stay current on new forms of
treatment and new medications. The doctor has a duty to stay at a baseline of competency in order to
best serve patients. Competency is assessed by measuring what other professionals might do in a
similar situation or under similar circumstances. The locality rule may apply in assessing
competence: a doctor is judged by what other doctors in the same area are doing in regards to specific
treatments and procedures.
There was a fiduciary relationship between plaintiff and defendent.Defendent has violated
the fiduciary principals
Lack of duty of care
Lack of competence
When shiva bai complained about his pain 10 days after the operation, she was told to come
again after 2 months because Dr.jhamjhute was in abroad at that time no action was taken by
Geeta hospital or by Dr.Jamjhute itself thats where the duty of care and duty of competence
was violated.
In the case of: Shanta v. State of Andhra Pradesh and Ors
When the State or its servants failed to discharge their duty, when their
omissions are such that are seen causing serious injuries, as in the case of
the petitioner, we have no hesitation in holding that besides any remedy
under the private law for damages, the petitioner shall be entitled to be
compensated by the Government of the State for the negligence of its
servants -- the third respondent and other Doctors and members of the
staff of Government Maternity Hospital, Afzalgunj
III
Yes both hospital as well as doctor are justified for their accusation
because there was medical negligence and both are liable for the
negligence and this negligence could be a case of tort also because half
meter sponge was left inside shiva bai due to the negligence of
Dr.Jamjhute and later on no action was taken by Geeta hospital to solve
the issue.
According to tort-
Negligence as a tort is the breach of the legal duty to take care which
result in damages, undesired by defendant, to the plaintiff
This definition involves three constituents of negligence:
1. A legal duty to exercise due care on the part of the party complained of
towards the party complaining the formers conduct within the scope of
the duty.
2. That the defendant committed the breach of the said duty.
3. That the plaintiff suffered consequential damage due to the breach of
duty.
4. That the consequences were undesirable.
In the case of plaintiff she have been a subject to negligence as per the
facts-
When she again went back to the hospital after a few days she was
advised to come after two months since Dr.Jamjhute had gone abroad.
Having no other option, she sought treatment in the Life Line Hospital
where an operation was performed and it was discovered that half a meter
of sponge has been left in her stomach during the hysterectomy It was
because of this that her condition had deteriorated and her intestines had
developed gangrene and there was pus formation. To save her life, a part
of her intestine was removed and she had to incur a great deal of pain as
well as expenditure on her treatment.
When she went back again to hospital she was told to comeback after 2
months at that time there was the negligence of omission from the side of
hospital and the doctor because no action was taken so then she decided
to go another hospital but it was too late and she lost her small intestine
because of puss formation due to negligence of Dr.jhamjhute and Geeta
hospital.
Both hospital and doctor are justified for accusation and are liable to
compensate Shiva Bai. The expenditures occurred during her operation in
lifeline hospital and the pain she suffered due to the medical negligence of
Dr.Jamjhute and Geeta Hospital.
PRAYER
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and
Good Conscience.
And for this, the Complainant as in duty bound, shall humbly pray.