MCC 02

BEFORE THE
HONBLE
NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
At
NEW DELHI

IN THE MATTER OF
APPELLANT KEJRIWAL
(Appellant)
Vs.
1. RESPONDENT NO.1
2. RESPONDENT NO.2
3. THE SWISS PARK HOSPITAL at KOCHI through
MANAGEMENT
(Respondent)
--------------------------------------MEMORIAL ON BEHALF OF THE RESPONDENT(S)
--------------------------------------2011

TABLE OF CONTENTS
Table of Content.02
List of Abbreviation03
Index of Authorities04
Statement of Facts...05-06
Issues Raised07
Summary of Pleadings08
Pleadings..09-11
Prayer for Relief..12

LIST OF ABBREVIATIONS
PIL Public Interest Litigation
CTF Central Task Force
Art. Article
AIR All India Reporters
SC Supreme Court
Hon Honourable
MTP Medical Termination of Pregnancy

INDEX OF AUTHORITIES
JUDICIAL DECISIONS
Vinitha Ashok vs. Lakshami Hospital, AIR 2001 SC 3914

BOOKS
Universal Publication, Consumer Protection Act 1986
Jaiswal J.V.N., Legal Aspects of Pregnancy, Delivery and Abortion
Rao.Y.N, Law Relating to Medical Negligence, 2 nd Edition

MISL
Westlaw International
All India Reporters
IndianKanoon

STATEMENT OF FACTS
Rajiv and appellant were residents of Kochi. They got married on 3.10.2000. Just after one
year of their marriage, on 3.10.2001 Appellant conceived and a very beautiful daughter was
born to both Rajiv and Appellant and the rest of the Kejriwal family on 03.08.2002. The child
born was a caesarean child. On 03.12.2002, Appellant suspected that maybe she is pregnant
and to get the news assured, she and her husband Rajiv went to the most reputed hospital in
town known as Swiss Park Hospital. In the hospital several reputed doctors were practicing
and some of them were F.R.C.S pass outs from the United Kingdom. In the Hospital the
couple went to a very reputed doctor namely, Respondent no.1, who took the responsibility of
examining Appellant. After the examination was complete the doctor informed Rajiv and
Appellant that Appellant was pregnant but as Appellant was so weak and had just recovered
from the strain of pregnancy, it would not be wise for the couple to conceive another child so
fast. Undertaking all the possible circumstances the couple decided to terminate the
pregnancy as fast as possible so that the whole family does not come to know about this
thing. The date fixed for the termination of pregnancy was 10.12.2002.

One day previous to the date fixed for the termination of the pregnancy that is on 09.
12.2002, both Appellant and Rajiv went to the doctor as was asked by the doctor. The doctor
had said in order to terminate the pregnancy and to make the procedure smooth and easy for
Appellant the doctor would be taking the process step by step, so that Appellant does not face
any strain or any sort of physical and mental exhaustion together at the same moment.
On 9.12.2002, that is the first day for the termination of the pregnancy, an instrument called
laminaria tent was inserted in Appellant. The laminaria stick or tent is a thin rod of
dried laminaria, a kelp species. Laminaria sticks are used in obstetrics to slowly dilate the
cervix to induce labor and delivery or for surgical procedures including abortions. The rods
are inserted into the cervix, and over the course of several hours, they slowly absorb water
and expand, dilating the cervix and prompting labour. Hence it was a procedure in order to
help Appellant from getting too much pain on 10.12.2002 while terminating her pregnancy.
On 10.12.2002, Rajiv and Appellant reached the hospital at the time they were asked to come
that is on 8.30 am in the morning. Respondent no.1 was assisted by another doctor
Respondent no.2, who was a reputed lady gynaecologist of the city of Kochi. Both these
5

doctors took Appellant to the labour room at about 9.00 am. At around 10.00am, respondent
no.2 came out of the labour ward and informed Rajiv that while the doctors were trying to
terminate Appellants pregnancy, due to some other complications Appellant had been
bleeding profusely. She also told Rajiv that in order to save Appellants life the two doctors
will have to conduct an operation and for that they needed Rajivs permission. To save his
lovely wifes life Rajiv gave his assent.
Respondent no.1 informed Rajiv that it was a case of Cervical Pregnancy and Appellants
uterus had been removed.

ISSUES RAISED
I
Whether medical service comes under the Consumer Protection Act, 1986?
II
Whether the procedure of MTP was adequate, in the circumstances?
III
Whether the removal of organ, such as the uterus, was adequate in the
circumstances?

SUMMARY OF PLEADING
No, medical services are not covered under the Consumer Protection Act, 1986 as per section
2(u) of the act, talked herein.
Dilation was one of the most adequate procedures of abortion as it has been accepted by the
Honble Supreme Court in opinion of Dr. Shanta Warrier, and in addition the appellant is a
resident at Kochi which is located in Kerala where insertion of laminaria tent in cervix for
dilation is a common practice.
In the case of Vinitha Ashok vs. Lakshami Hospital1 the Honble Supreme Court of India
referred to a various medical texts and observed that in the case of cervical pregnancy
hysterectomy2 was the only solution on account of profuse bleeding.
Therefore all the above arguments stand that the removal of uterus was done in good faith,
and was a necessary step in opinion of the respondents. Also high levels of medical standards
were followed by the respondents and no inadequacy or negligence existed on the part of the
respondents.

AIR 2001 SC 3914

a medical operation to remove uterus, Cambridge Advanced learners Dictionary 3rd edition

PLEADING
Medical Services do not come under as services as per the Consumer
protection Act, 1986.
The consumer protection act 1986, defines service under section 2(u) as below
Section 2 - Definitions - In this Act, unless the context otherwise requires
(u)service means service of any description which is made available to potential users and
includes the provision of services in connection with business of any industrial or commercial
matters such as banking, communication, education, financing, insurance, chit funds, real
estate, transport, storage, material treatment, processing, supply of electrical or other energy,
boarding, lodging, entertainment, amusement, construction, repair, conveying of news, or
information and advertising;
The definition does not show that medical services come as per the definition of service
under the Consumer Protection Act. Therefore, medical practitioners, such as the
respondent(s) are cannot be challenged under the Consumer Protection Act, 1986.

The procedure undertaken for MTP was adequate in the circumstances.

The appellant gave birth to a caesarean child in August 2002. Just after 16 weeks that is in
December, the appellant conceived again. For confirmation of the same the appellant along
with her husband Rajiv approached respondent no.1 working at the Swiss Park Hospital at
Kochi. Respondent no.1 informed that the appellant was pregnant. But as the appellant was
weak and had just recovered from the strain of pregnancy, it would not be wise for the couple
to deliver another child as soon as it will deteriorate the appellants health as well as the child
to be born. Undertaking all the possible circumstances the couple decided to terminate the
pregnancy as soon as possible that it does not exceed the time limit for MTP. Therefore, to
take the procedure strain less and smooth respondent no.1 inserted an instrument called
laminaria tent, which is used to dilate 3 the cervix to induce labour and delivery or for
surgical procedure such abortion. In Vinitha Ashok vs. Lakshami Hospital4 the National
3

to (cause a part of the body to) become wider or further open, Cambridge Advanced learners Dictionary 3rd
edition
4

AIR 2001 SC 3914

Commission and Honble Supreme Court of India accepted the expert opinion of Dr. Shanta
Warrier (the respondent), that the use of laminaria tent in dilation of cervix was one of the
accepted standard procedures, which is a common practice in Kerala. In same case the court
referred to an article by Dr. G.L. Dhall, where it was indicated that the most commonly used
method of first trimester abortion is Dilation. The court also, therefore, observed that even if
there is difference of opinion among the experts on the procedure adopted by a doctor, but a
procedure which is commonly in practice in an area if adopted by a doctor, it could not be
said that there was negligence or in adequacy in his part. The court further observed that a
doctor would not be held guilty of negligence if he had acted in accordance with the practice
accepted as proper by a responsible body of medical men skilled in that particular art and if
he had acted in accordance with such practice merely because there is a body of opinion that
takes a contrary view would not make him liable for negligence.
Therefore, dilation was one of the most adequate procedures of abortion as it has been
accepted by the Honble Supreme Court in opinion of Dr. Shanta Warrier, and in addition the
appellant is a resident at Kochi which is located in Kerala where insertion of laminaria tent in
cervix for dilation is a common practice.

Removal of organ, such as the uterus, was adequate in the opinion of the
respondent(s).
The appellant gave birth to a caesarean child in August 2002. Just after 16 weeks that is in
December, the appellant conceived again. But as the appellant was weak and had just
recovered from the strain of pregnancy, therefore it was advised by respondent no.1 it would
not be wise for the couple to deliver another child as soon as it will deteriorate the appellants
health as well as the child to be born. Undertaking all the possible circumstances the couple
decided to terminate the pregnancy as soon as possible that it does not exceed the time limit
for MTP.
During the operation, the appellant started to bleed profusely and it was found that she had
cervical pregnancy (It is a type of ectopic pregnancy 5 which occurs in cervical canal) 6, which
was a danger to the life of appellant. Therefore with the permission of Rajiv, the
respondent(s) operated the appellant and removed the uterus.
5

Pregnancy occurring outside uterus, may be in fallopian tubes or the cervix Jaiswal
J.V.N., Legal Aspects of pregnancy, delivery and abortion, p.3
6
Jaiswal J.V.N., Legal Aspects of pregnancy, delivery and abortion, p.3

10

In the case of Vinitha Ashok vs. Lakshami Hospital7 the Honble Supreme Court of India
referred to a various medical texts and observed that in the case of cervical pregnancy
hysterectomy8 was the only solution on account of profuse bleeding.
Thus, the removal of uterus was adequate and up to medical standards.
Therefore all the above arguments stand that the removal of uterus was done in good faith,
and was a necessary step in opinion of the respondents. Also high levels of medical standards
were followed by the respondents and no inadequacy or negligence existed on the part of the
respondents.

AIR 2001 SC 3914

a medical operation to remove uterus, Cambridge Advanced learners Dictionary 3rd edition

11

PRAYER
In lights of the facts stated, arguments advanced, the Petitioner, humbly
Prays before the Honourable Court to
Please dismiss the complaint filed by the appellant.
The Court may also be pleased to pass any other order, which the Court
may deem fit in light of Justice Equity and good conscience.

ALL OF WHICH IS MOST HUMBLY PRAYED.

Counsel(s) Respondent(s)

12