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COMMONWEALTH LEGAL EDUCATION ASSOCIATION MOOT 2014-2015

MEMORIAL FOR THE CLAIMANT


IN THE DISTRICT COURT OF KOLKATA
AT KOLKATA.

Civil complaint no. ____/2014


(Under S. 9 of the Code of Civil Procedure, 1908 )

Mr Tony Stanley

Claimant
v.

Mr Sachin Panwar
&
And Mr Debjyoti Sarkar

Respondents

Written Submission on behalf of the claimant,


C 14-28,
Counsel for the claimant.

Contents
INDEX OF AUTHORITIES .......................................................................................................................... 3
STATEMENT OF JURISDICTION ................................................................................................................ 8
STATEMENT OF FACTS .......................................................................................................................... 10
ISSUES RAISED ...................................................................................................................................... 11
SUMMARY OF ARGUMENTS................................................................................................................... 12
ARGUMENTS ADVANCED ...................................................................................................................... 14
THE ANTI-SUIT INJUNCTION SHOULD NOT BE GRANTED .............................................................. 14

I.

[1]. THE ENGLISH PROCEEDINGS ARE NOT BARRED BY RES JUDICATA. ............................................. 14
[A]. In any case, rule of Lis Alibi Pendens Apply. ....................................................................... 15
[2]. UK COURTS ARE NOT FORUM NON-CONVENIENCE AS NOTHING ON RECORD SHOWS THAT
PROCEEDINGS WOULD BE OPPRESSIVE AND VEXATIOUS. .................................................................. 15
[A]. Proceedings in England would not be violative of public policy. ......................................... 15
[3]. THE GRANT OF INJUNCTION CAUSES GRAVE INJUSTICE TO THE CLAIMANT ............................. 16
WHETHER DEFENDANTS ARE LIABLE FOR MEDICAL NEGLIGENCE? ......................................... 17

II.

STANDARD OF CARE .......................................................................................................................... 17


[1]. THERE IS A BREACH OF DUTY OF CARE OWED TO MRS SHARON STANLEY BY MR DEBJYOTI
SARKAR AND MR SACHIN PAWAR. ................................................................................................... 18
SACHIN PAWAR ............................................................................................................................. 18
DEBJYOTI SARKAR ........................................................................................................................ 20
[2]. THE INJURY OR DAMAGE WAS PROXIMATELY CAUSED BY THE BREACH OF DUTY BY MR SACHIN
PAWAR AND SARKAR. ....................................................................................................................... 23
[A].The but for test has been satisfied. ...................................................................................... 23
[B]. Second, there was a loss of chance of the correct treatment, because of the negligent
treatment of doctors. ..................................................................................................................... 24
III.

WHETHER THE CLAIMANTS SHOULD BE AWARDED DAMAGES FOR MEDICAL NEGLIGENCE OF


DEFENDANTS? ....................................................................................................................................... 25
1.)

THE CLAIMANTS ARE ENTITLED TO A JUST AND REASONABLE COMPENSATION. ........... 26

PRAYER ................................................................................................................................................. 30

INDEX OF AUTHORITIES
Cases
(1) Malay Kumar Ganguly; (2) Dr. Kunal Saha v Dr. Sukumar Mukherjee and Others, (2009)
9 S.C.C. 221 (India) ...................................................................................................... passim
Achutrao Haribhau Khodwa v. State of Maharashtra, A.I.R. 1996 S.C. 2377 (India) ............ 15
Arvind Kumar Mishra v. New India Assurance Company Limited and Another, (2010) 10
S.C.C. 254 (India) ................................................................................................................ 23
Barnett v. Chelsea & Kensington Hospital Management Committee, [1968] 1 All ER 1068
(H.L.). ................................................................................................................................... 20
Bolam v. Friern Hospital Management Committee, [1957] 2 All ER 118 (Q.B.D.). .............. 14
Bolitho v. City and Hackney Health Authority, [1997] 4 All ER 771 (H.L.).......................... 15
Bonnnington Castings Ltd. v. Wardlaw, [1956] A.C. 613 (H.L.). .......................................... 21
Connelly v. R.T.Z. Corp. Plc., [1998] A.C. 854 (H.L.) ........................................................... 13
Dardinger v. Anthem Blue Cross & Blue Sheild, 98 Ohio St.3d 77 ........................................ 24
De Dampierre v. De Dampierre, [1988] A.C. 92, 108 (H.L.). ................................................. 12
Dr. Balram Prasad and Others v. Dr. Kunal Saha and Another, (2014) 1 S.C.C. 384 (India . 18,
22, 23
Dwyer v. Roderick, [1983] 127 S.J. 806.................................................................................. 19
Erlanger v. New Sombrero Phosphate Co., (1878) 3 App Cas 1218 (H.L.), ........................... 22
Fairchild v. Glenhaven Funeral Service, [2002] 3 All ER 305 (H.L.). ................................... 22
Fraser v. Vancouver general hospital, [1952] 2 S.C.R. 36 (S.C. Canada). .............................. 17
Gherulal Parakh v. Mahadeodas Maiya, (1959) 2 S.C.R. 406 (India). .................................... 13
Gherulal Parakh v. Mahadeodas Maiya, AIR 1959 SC 781. ................................................... 13
Govind Yadav v. New India Assurance, (2011) 10 SCC 683 (India)...................................... 23
Greggs v. Scott, [2005] 2 WLR 268 (H.L.). ............................................................................ 21
Hotson v. East Berkshire Area Health Authority, [1987] A.C. 750 (H.L.).............................. 21
Hunter v. Hanley, [1955] SLT 213 (First Division .................................................................. 16
Ibrahim v. Raju and Others, 2012 (3) ALD (SC) 60 (India).................................................... 23
In Re: Destruction of Public & Private Properties v. State Of A.P. and Others, (2009) 5
S.C.C. 212 (India), ............................................................................................................... 24
Indian Medical Association v. V.P. Shanta, (1995) 6 S.C.C. 651 (India) ............................... 24
Lata Wadhwa and Others v. State of Bihar and Others, (2001) 8 S.C.C. 197 (India). ............ 24
Lim Poh Choo v. Camden and Islington Area Health Authority, [1980] A.C. 174 (H.L.) ..... 24
3

Livingstone v. Rawyards Coal Co., (1880) 5 App Cas 25 (H.L.). ........................................... 22


Lubbe v. Cape Plc., [2000] 1 W.L.R. 1545 (H.L.), ................................................................. 13
Macdonald v. York country hospital corporation, [1972] 28 DLR (3d) 521 ........................... 17
Macshannon v. Rockware Glass Limited, [1978] A.C. 795 (H.L.). ........................................ 12
Martin F.D' Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 (S.C. India). ......................................... 16
Maynard v. West Midland Regional Health, Authority, [1985] 1 All ER 635 (H.L.). ............ 14
Mcghee v. National Coal Board, [1972] 3 All ER 1008 (H.L.). .............................................. 20
Modi Entertainment Network v. WSG Cricket Private Limited, A.I.R. 2003 S.C. 1117 (India)
.............................................................................................................................................. 13
Munib Masri v. Consolidated Contractors International Company SAL, [2008] EWCA Civ
625, [2009] 2 W.L.R. 669 .................................................................................................... 11
Munib Masri v. Consolidated Contractors International Company SAL, [2008] EWCA Civ
625. ....................................................................................................................................... 11
Nicholson v. Atlas Steel Foundry and Engineering Co. Ltd., [1957] 1 W.L.R. 613 (H.L.). ... 21
Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Others, (2009) 6 S.C.C. 1
(India) ................................................................................................................................... 23
Pantaloon Retail India v. Amer Sports Malaysia, F.A.O. (O.S.) 224/2012 (Delhi H.C.). ....... 13
Payne v. St. Helier group hospital management committee .................................................... 17
Penny v. East Kent Health Authority, [2000] P.N.L.R. 323 (C.A. Civil Div.)........................ 19
Piramal Healthcare Ltd. v. Diasorin S.P.A., (2010) (172) DLT 131 (Delhi H.C.) .................. 13
Piramal Healthcare Ltd. v. Diasporin SPA, 172 (2010) DLT 131. .......................................... 13
R. K. Malik and Another v. Kiran Pal and Others, (2009) 14 S.C.C. 1 (India) ....................... 23
Renusagar Power Co. Ltd. v. General Electric Co., (1994) AIR 860 (S.C.) (India). .............. 13
Renusagar Power Co. Ltd. v. General Electric Co., AIR 1994 SC 860. .................................. 13
Ribl v. Hughes, [1980] 114 DLR 3d 1 (S.C. Canada). ............................................................ 16
Roenbreg v. Percival [2001] HCA 18 (H.C. Australia). .......................................................... 16
Rogers v. Whitaker: [1992] 109 Aus LR 625 (H.C. Australia)................................................ 16
Santosh Devi v. National Insurance Company Ltd. and Others, (2012) 6 S.C.C. 421 (India).24
Sarla Verma and Others v. Delhi Transport Corporation and Another, (2009) 6 S.C.C. 121
(India) ................................................................................................................................... 24
Sarla Verma and Others v. Delhi Transport Corporation and Another, (2009) 6 S.C.C. 121
(India), .................................................................................................................................. 24
Sir John Donaldson Mr. Hotson v. East Berkshire Area Health Authority, [1987] A.C. 750
(C.A.).................................................................................................................................... 21
4

Smt. Savita Garg v. Director, National Heart Institute, (2004) 8 S.C.C. 56 (India). ............... 24
South Carolina Welch v. Epstien, 536 S.E.2d 408 (Ct. App. 2000). ....................................... 24
Spring Meadows Hospital and Another v. Harjol Ahluwalia, 1998 4 S.C.C. 39 (India)......... 24
The Abidin Daver, [1938] A.C. , 398, 411-412 (H.L. ............................................................. 12
The Atlantic Star v. Bona Spes, [1973] 2 All ER 175 ............................................................. 13
Times global Broadcasting Co. Ltd. v. Parshuram Babaram Sawant, (2014) 1 S.C.C. 703
(India). .................................................................................................................................. 23
Union of India v. Videocon Industries, AIR 2011 SC 2040; ................................................... 11
United India Insurance Company Limited and Others v. Patricia Jean Mahajan and Others,
(2002) 6 S.C.C. 281 (India). ................................................................................................. 23
V. Kishan Rao v. Nikhil Super Speciality Hospital and another, (2010) 5 S.C.C. 513 (India).
.............................................................................................................................................. 24
Videocon Industries Limited v. Union of India and Another, (2011) 6 S.C.C. 161 (India) .... 11
Vinitha Ashok v. Lakshmi Hospitals, A.I.R. 2001 S.C. 3914 (India) ..................................... 15
Zarb v. Odetoyinbo, [2006] EWHC 2880 (Q.B.). ................................................................... 17
Other Authorities
Ash Samanta & Jo Samanta, Legal Standard of Care: A Shift from the Traditional Bolam
Test, 3[5], CLINICAL MEDICINE, (2003) at p. 446. ................................................................ 14
M. Brazier et. al., Bye Bye Bolam- A Medical Litigation Revolution?, 8, MEDICAL LAW
REVIEW, (Spring 2000) ......................................................................................................... 14
Medfacts Meta Analysis covering adverse side effect reports of depo medrol patients who
developed toxic epidermal mecrolysis, MEDSFACTS, (Nov. 3, 2014),
http://medsfacts.com/study-DEPO-MEDROL-causingTOXIC%20EPIDERMAL%20NECROLYSIS.php ............................................................ 16
Regulations
Code of Ethics Regulation, 2002, 4.3 (India) .......................................................................... 17
Books
CHESHIRE, NORTH & FAWCETT, PRIVATE INTERNATIONAL LAW 460-64 (14th ed. 2008). ....... 13
Dermatology by O. Brian Falco, Harrisons principle of Inernal Medicine ............................. 16
FITZ PATRICKS DERMATOLOGY IN GENERAL MEDICINE (Irwin M. Freedberg et al. eds., 5th ed.
1999)..................................................................................................................................... 16
GOODMAN & GILLMAN, THE PHARMOLOGIAL BASIS OF THERAUPUETICS (11th ed. 2011). ...... 16
5

M JONES, MEDICAL NEGLIGENCE 352 (4thed. 2008), ................................................................ 23


MICHAEL JONES, MEDICAL NEGLIGENCE 458 (2008). ............................................................. 19
PETER ANDREWS & TERENCE LEE, CATASTROPHIC INJURIES: A PRACTICAL GUIDE TO
COMPENSATION

97,97 (1997) ............................................................................................... 22

Articles
Ash Samanta & Jo Samanta, Legal Standard of Care: A Shift from the Traditional Bolam
Test, 3[5], CLINICAL MEDICINE 443, 446 (2003). ................................................................. 14
Barillo DJ, Goodwin CW, Dermatologists and the Burn centre, 17 DERMATOLOGIC CLINIC
61-75 (1999). ........................................................................................................................ 19
Bradley T, Brown RE, Kucan, et al., Toxic epidermal necrolysis A review and report of the
successful use of Biobrance for nearly wound coverage, 35 ANN PLANT BURG 124-32
(1995). .................................................................................................................................. 19
Chistoph Quezel-Ambrunaz, Compensation and Human Rights 4 NUJS LAW REVIEW 189
(2011), M. S. Grewal and Another v. Deep Chand Sood and Others, (2001) 8 S.C.C. 151
(India). .................................................................................................................................. 23
Correia 0, Delgado L, Ramos JP, et al., Cutaneous T-cell recruitment in toxic epidermal
necrolysis: Further evidence of CD8+ lymphocyte involvement, 129 ARCH DERMATOL 4668 (1993). ............................................................................................................................... 18
Depew CL., Toxic epidermal necrolysis, 3 CRIT CARE NURS. CLIN NORTH AM. 255-67 (1991).
.............................................................................................................................................. 18
J.E. Revuz & J.C. Roujeau, Advances in toxic epidermal necrolysis, 15(4) SEMINARS IN
CUTANEOUS MEDICINE AND SURGERY

258 (1996). ............................................................... 16

M. Brazier et al., Bye Bye Bolam - A Medical Litigation Revolution?, 8, MEDICAL LAW
REVIEW, 85 (2000). ............................................................................................................... 14
Miyauchi H, Hosokawa H, Akaeda T, et al., T-cell subsets in dug induced toxic epidermal
necrolysis, 127(6) ARCH DERMATOL 851- 5 (1991)............................................................. 18
P. E. Wolkenstein, J. C. Roujeau, J. Revuz, Drug-induced toxic epidermal necrolysis, 16
CLIN DERMATOL 399-409 (1998). ........................................................................................ 17
Roujeau JC, Huyn NT, Bracq C, et al., Genetic susceptibility to toxic epidermal necrolysis,
123 ARCH DERMATOL 1171-73 (1987). ............................................................................... 18
Schmidt- Westhausen AT, Gunnewald T, Peichart A, et al., Oral manifestations of toxic
epidermal necrolysis.(TEN) in patients with AIDS. Reports of 5 cases. 4 ORAL DIS 90 4
(1998). .................................................................................................................................. 18
6

Teff H, The Standard of Care in Medical NegligenceMoving on from Bolam? 18.3 OXFORD
JOURNAL OF LEGAL STUDIES 473-484 (1998). ..................................................................... 19
TEN-Medical findings and prognosis in 87 patients, jean revuz from the archives of
dermatology. The resolution taken in international conference known as cretelis
experience, 1987 authored by j revus and jcroujeau( archives of dermatology, vol. 123,
pages 1156-57). .................................................................................................................... 18

STATEMENT OF JURISDICTION
______________________________________________________________________
Civil Complaint no. ____/2014
______________________________________________________________________
1. The claimant has approached this Honble Court under S. 9 of the Code of Civil
Procedure, 1908.

STATEMENT OF FACTS

The parties in question.


Mrs Sharon Stanley and Mr Tony Stanley, gynaecologist and an attorney respectively are in
India to celebrate their maiden wedding anniversary. Mr Sachin Pawar is a doctor at Green
Meadows Diagnostic centre, a part of Vasantech hospital, in Kolkata. Mr Debjyoti Sarkar is a
dermatologist in Vasantech hospital.
Background of the Medical condition.
Mrs Sharon Stanley started to acute pain, fever and rashes upon her visit. She obtained
assistance from Mr Sachin Pawar. While her condition did not improve, she got admitted to
the hospital. In the hospital she was diagnosed with allergic Vasculitis. Later when she was
diagnosed under a dermatologist, she was found suffering from Toxic Epidermal Necrolysis.
She further succumbed to death as a resultant of Toxic Epidermal Necrolysis.
First Dispute.
As a testimony of tony Stanley, Sharon Stanley was administered 80 mg of Depomedrol
straightway and prescribed two injections daily for three days. The maximum recommended
dose of the drug for any clinical condition is within the range of 40-120 mg at that too at a
minimum interval of 1-2 weeks between such doses.
Second Dispute.
After she was diagnosed with Toxic Epidermal Necrolysis. There wasnt any drastic change
made in the treatment regimen of the patient. The steroid therapy of Vasculitis was further
continued. Sharon Stanley died later.

10

ISSUES RAISED

I. WHETHER ANTI-SUIT INJUNCTION SHOULD BE GRANTED AGAINST CLAIMANTS?

II. WHETHER DEFENDANTS ARE LIABLE FOR MEDICAL NEGLIGENCE?

III. WHETHER

THE CLAIMANTS SHOULD BE AWARDED DAMAGES FOR MEDICAL

NEGLIGENCE OF DEFENDANTS?

11

SUMMARY OF ARGUMENTS

1.) THE ANTI SUIT INJUNCTION SHOULD NOT BE GRANTED AGAINST THE CLAIMANTS
The anti suit injunction should not be granted as the proceeding in the Brigham court of
United kingdom is not barred by res judicata as it is impossible to determine the substance of
potential English proceedings and it is uncertain that it would amount to re-litigation. In any
case, rule of Lis Alibi Pendens applies which justifies concurrent proceedings if the would be
plaintiff in England could establish objectively with cogent evidence that there was some
personal or juridical advantage by proceeding in England and justice would be denied to the
claimant if pre-emptive injunction is granted. Further, Courts in UK are not forum non
conveniens as nothing on record shows that the proceedings would be vexatious and
oppressive and violative of public policy. Lastly, It would cause grave injustice to claimant as
he will not be able to obtain financial support for prolonged proceedings in India and he will
be unable to sue as a consequence.
2.) MR SACHIN PAWAR

AND

MR DEBJYOTI SARKAR

HAVE COMMITTED A BREACH OF

DUTY OF CARE

Mr Sachin Pawar has not only prescribed the medicine without diagnosis but also has
administered an excessive amount which is irrational. He has not stuck to the standards of a
reasonable man practising that particular profession.
Mr Debjyoti Sarkar has been negligent. First, he did not make any effort to check or reduce if
excessive amount of Depomedrol resulted in toxicity. Second, he did not make any effort to
alter the treatment from the earlier treatment. The treatment by using steroid therapy is
clearly illogical and rarely endorsed.

12

3.) THE INJURY OR DAMAGE WAS PROXIMATELY CAUSED BY THE BREACH OF DUTY BY
MR SACHIN PAWAR AND SARKAR.
There are two well settled test for proving causation, i.e. but for and loss of chance test.
It is submitted that both the tests are fulfilled in the particular case. Had Mr Sachin Pawar and
Mr Debjyoti Sarkar, administered the adequate amount of medicine and rightly diagnosed the
disease, the death of Mrs Sharon Stanley would not have occurred. It is also submitted that by
misdiagnosis the claimants have been exposed to material risk.
Even the loss of chance is satisfied here, the test imbibes the value of just and reasonable.
Therefore even if the chances are less than 50%, it does not mean that compensation cannot
be done. Even in those cases, the causation chain is held to be complete.
4.) A

JUST AND REASONABLE

COMPENSATION SHOULD BE

GRANTED TO THE

CLAIMANTS.

The principle of restituto in integrum should be applied here to grant a just and reasonable
compensation. The educational qualification and the status of the parties have to be kept in
mind. It is also submitted that the application of multiplier method is erroneous in this
particular case. It has to be considered that it is not a case of accident but cause of a
reprehensible act of doctors.

13

ARGUMENTS ADVANCED

I.

THE ANTI-SUIT INJUNCTION SHOULD NOT BE GRANTED

The claimant intends to proceed in the courts of United Kingdom [UK] against which the
defendants have pre-emptively moved the court for grant of an anti-suit injunction against the
claimants. It is submitted that it shall not be granted as First, the English proceedings are not
barred by res judicata. In any case, rule of Lis Alibi Pendens, apply. Second UK courts are
not forum non conveniens as proceeding will not be oppressive or vexatious. Third, grave
injustice will be caused to the claimant by grant of anti-suit injunction. Therefore this Court
must not grant the injunction.
[1]. THE ENGLISH PROCEEDINGS ARE NOT BARRED BY RES JUDICATA.
1. It is incorrect to suggest English proceedings are barred by res judicata because the
application of res judicata is subject to certain conditions. This includes proof of the
cause of action being the same and there being a re-litigation of the same
contentions.1 In the instant case, the anti-suit injunction is pre-emptive.2 Further, since
UK has codified the law by recently passing Medical Malpractices Act, 2013; 3 Hence
it is impossible to predict the substance of potential English proceedings.
Consequently, it is not certain that English proceedings would have amounted to relitigation. Therefore, the anti-suit injunction cannot be upheld merely in respect of
such anticipatory proceedings.

Videocon Industries Limited v. Union of India and Another, (2011) 6 S.C.C. 161 (India), Munib Masri v.
Consolidated Contractors International Company SAL, [2008] EWCA Civ 625, [2009] 2 W.L.R. 669.
2
Paragraph 8, factsheet.
3
Key assumptions Part (b), factsheet.

14

[A]. In any case, rule of Lis Alibi Pendens Apply.


2. The rule of Lis Allibi Pendens applies for simultaneous actions which are pending
between same parties involving same cause of action or related causes of action.4 It is
now clear that pending of simultaneous proceeding are no more than just a factor
relevant for determination of appropriate forum. It has been held in The Abidin Daver5
that the additional inconvenience or expense that results from two sets of proceedings
to be pursued concurrently in two different jurisdictions where same facts would be in
issue and testimony of same witnesses is required, can be justified if the would be
plaintiff in England could establish objectively with cogent evidence that there was
some personal or juridical advantage that would be available to him only in the
English action which was of such importance that it would deprive him of justice. It is
submitted that defendants are claiming pre-emptive injunction and thereby depriving
claimants a chance to objectively prove personal or juridical advantage before the UK
courts. Hence, anti suit injunction should not be granted.

[2]. UK COURTS ARE NOT FORUM NON-CONVENIENCE AS NOTHING ON RECORD SHOWS


THAT PROCEEDINGS WOULD BE OPPRESSIVE AND VEXATIOUS.

[A]. Proceedings in England would not be violative of public policy.


3. It is conceded that there is strength in the claim that the natural forum for the

adjudication of disputes under the agreement is India. Nonetheless, it has been held
consistently by Indian courts that the choice of a forum having little or no connection

De Dampierre v. De Dampierre, [1988] A.C. 92, 108 (H.L.).


The Abidin Daver, [1938] A.C. , 398, 411-412 (H.L.), Macshannon v. Rockware Glass Limited, [1978] A.C.
795 (H.L.).
5

15

with the underlying dispute is not ousted automatically by proceedings before a


natural forum.6 It must be demonstrated that the clause violates public policy.7
However, the exception is inapplicable to the present case. In light of judicial
interpretations of public policy, it is submitted that the threshold for violation of
public policy is significantly higher than the situation in the instant case. 8 Especially
where foreign elements are involved, courts will be slower to invoke public policy.9
In the present matter, Mr Tony is a UK national. Further, the proceedings does not
violate any public policy. Therefore, an anti-suit injunction cannot be sought.

[3]. THE GRANT OF INJUNCTION CAUSES GRAVE INJUSTICE TO THE CLAIMANT

4. One of the primary reasons for granting anti-suit injunctions to a party is to prevent
injustice,10 and thus it serves by that logic the claim that anti-suit injunctions ought to
not be granted where such a grant perpetuates injustice. It is a settled proposition of
that if a Claimant is able to obtain financial support for proceedings if they are
brought in England, but will be unable to obtain it or a reasonable equivalent, if the
claim is brought in foreign court and as a result will be unable to sue at all, then the
courts will not grant such injunctions.11 In this case, claimant is a national of UK.12
Further, the proceedings in India can stretch for unduly long durations. Therefore, it is
argued that the claimant will not be able to obtain such financial support and as a

Modi Entertainment Network v. WSG Cricket Private Limited, A.I.R. 2003 S.C. 1117 (India), Piramal
Healthcare Ltd. v. Diasporin SPA, 172 (2010) DLT 131.
7
Piramal Healthcare Ltd. v. Diasorin S.P.A., (2010) (172) DLT 131 (Delhi H.C.), Pantaloon Retail India v.
Amer Sports Malaysia, F.A.O. (O.S.) 224/2012 (Delhi H.C.).
8
Gherulal Parakh v. Mahadeodas Maiya, (1959) 2 S.C.R. 406 (India).
9
Renusagar Power Co. Ltd. v. General Electric Co., (1994) AIR 860 (S.C.) (India).
10
Modi Entertainment Network v. WSG Cricket Private Limited, A.I.R. 2003 S.C. 1117 (India), The Atlantic
Star v. Bona Spes, [1973] 2 All ER 175, CHESHIRE, NORTH & FAWCETT, PRIVATE INTERNATIONAL LAW 460-64
(14th ed. 2008).
11
Lubbe v. Cape Plc., [2000] 1 W.L.R. 1545 (H.L.), Connelly v. R.T.Z. Corp. Plc., [1998] A.C. 854 (H.L.).
12
Paragraph 1, factsheet.

16

result will be unable to continue proceedings and claim compensation. It is submitted


that it would lead to claimant suffering grave injustice and hence, anti suit injunction
should not be granted.

II.

WHETHER DEFENDANTS ARE LIABLE FOR MEDICAL NEGLIGENCE?

1.) Mr Sachin Pawar and Mr Debjyoti Sarkar were negligent in treating Mrs Sharon
Stanley. Prior to submissions, it is pointed out that to prove negligence three pre
requisites have to be fulfilled. 1.) There must be a duty owed to exercise reasonable
care. 2.) There must be a breach of the Duty of Care and 3.) Damage which is result
of breach. It is implicit here that it is a legal duty owed to the patient by the virtue of
his getting admitted into a hospital.
STANDARD OF CARE

1. The standard of care in this case rests on the well-established test of Bolam.13 It is the

standard of an ordinary skilled man exercising and professing to have that special skill
. . . A man need not possess the highest level of expertise and it is sufficient if he
exercises the ordinary skill of an ordinary competent man practising that particular
art.14
2. A doctor is not guilty of negligence if he has acted in accordance with such a practice,

merely because there is a body of opinion which takes a contrary view.15 The
defendants might adduce some expert evidence to prove that they have met the
standard of care. However same shall not satisfy the standard of care that they ought

13

Bolam v. Friern Hospital Management Committee, [1957] 2 All ER 118 (Q.B.D.).


Bolam v. Friern Hospital Management Committee, [1957] 2 All ER 118 (Q.B.D.).
15
Maynard v. West Midland Regional Health, Authority, [1985] 1 All ER 635 (H.L.).
14

17

to take in their profession.16 It is submitted that the House of Lords has altered the
standard of care in well-known decision of Bolitho. Now, the standard of care is not
merely that a practice must be adduced by experts, but it also has to undergo a logical
analysis before the court.17 The Supreme Court has recognized this standard in the
past and has lately adopted the same test.18
Substantive Submissions.
3. It is submitted that Mr Sachin Pawar and Mr Debjyoti Sarkar are liable for medical

negligence because of two reasons. [1]. There is a breach of duty of care owed to Mrs
Sharon Stanley by Mr Debjyoti Sarkar and Mr Sachin Pawar. [2]. The injury or
damage was proximately caused due to the breach of duty of care by Mr Sachin
Pawar and Mr Debjyoti Sarkar.

[1]. THERE IS A BREACH OF DUTY OF CARE OWED TO MRS SHARON STANLEY BY MR


DEBJYOTI SARKAR AND MR SACHIN PAWAR.

SACHIN PAWAR

[A]. There is a breach of the duty of the care owed to Mrs Sharon Stanley.

There is a breach duty of care because of two reasons. First, the administration of
Depomedrol was excessive in nature. Second, the prescription of the same was
without any diagnosis.

16

Ash Samanta & Jo Samanta, Legal Standard of Care: A Shift from the Traditional Bolam Test, 3[5], CLINICAL
MEDICINE 443, 446 (2003). M. Brazier et al., Bye Bye Bolam - A Medical Litigation Revolution?, 8, MEDICAL
LAW REVIEW, 85 (2000).
17
Bolitho v. City and Hackney Health Authority, [1997] 4 All ER 771 (H.L.).
18
(1) Malay Kumar Ganguly; (2) Dr. Kunal Saha v Dr. Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221
(India), Vinitha Ashok v. Lakshmi Hospitals, A.I.R. 2001 S.C. 3914 (India)., Achutrao Haribhau Khodwa v.
State of Maharashtra, A.I.R. 1996 S.C. 2377 (India).

18

4. It is submitted that the administration of 80 mg of Depomedrol was excessive in

nature and not appropriate according to any medical professional standard.19 The
standard protocol recommends that for any clinical condition, Depomedrol should be
administered within the range of 40-120 mg at a minimum interval of 1-2 weeks.20 In
this case, Depomedrol has been administered in an excessive amount, twice daily for
three consecutive days.

5. The law of medical negligence mandates that a prescription ordinarily cannot be given

without actual examination.21 The same prescription has to be supported by the doctor
own analysis including tests and investigations where necessary.22 On the other hand
if there is a standard protocol and the professional has failed to adopt it, the decision
has to be supported by voluminous medical literature and authoritative expert
opinion.23

6. It is submitted that considering the highly toxic nature of Depomedrol, it is a uniform

practice accepted by the majority of medical professionals that a minimal amount of


Depomedrol must be administered.24 There are many scholarly articles and guidelines
of FDA which have endorsed this view. It is even noted that in 25% of the cases,

Medfacts Meta Analysis covering adverse side effect reports of depo medrol patients who developed toxic
epidermal mecrolysis, MEDSFACTS, (Nov. 3, 2014), http://medsfacts.com/study-DEPO-MEDROL-causingTOXIC%20EPIDERMAL%20NECROLYSIS.php
20
Fact sheet , 3 para
21
Hunter v. Hanley, [1955] SLT 213 (First Division). Tarun Thakore v. Dr. Noshir M, Shroff and Others, (2002)
Indlaw NCDRC 408 (N.C.D.R.C.).
22
Martin F.D' Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 (S.C. India).
23
Rogers v. Whitaker: [1992] 109 Aus LR 625 (H.C. Australia). Roenbreg v. Percival [2001] HCA 18 (H.C.
Australia). Ribl v. Hughes, [1980] 114 DLR 3d 1 (S.C. Canada).
24
FITZ PATRICKS DERMATOLOGY IN GENERAL MEDICINE (Irwin M. Freedberg et al. eds., 5th ed. 1999). J.E.
Revuz & J.C. Roujeau, Advances in toxic epidermal necrolysis, 15(4) SEMINARS IN CUTANEOUS MEDICINE AND
SURGERY 258 (1996). Dermatology by O. Brian Falco, Harrisons principle of Inernal Medicine. Malay
kumarganguly, Dr. Balram Prasad and Others v. Dr. Kunal Saha and Another, (2014) 1 SCC 384 (S.C. India).
19

19

Depomedrol has been the main cause of Toxic Epidermal Necrolysis.25 Prescribing an
excessive intake is irrational and hence no professional man of ordinary skill would
have taken such a decision had he been even ordinary care.26

7. Second, Mr Sachin Pawar has prescribed the medicine without carrying out the

appropriate diagnosis. It is conceded that a prescription can be given without


examination in cases of emergency.27 However, such a practice must be avoided as far
as possible and it must only be done after informing the patients relatives. 28 Even the
Code of Ethics regulation has codified that the doctor has to necessarily consult the
diagnostic experts.29 It is submitted that even if the prescription of the dose is
justified, the prescription was certainly made without following any diagnostic
procedures. Therefore Mr Sachin Pawar has breached the duty of care owed by him in
the present case.

DEBJYOTI SARKAR.

[B]. There is a breach of the duty of the care owed to Mrs Sharon Stanley.

25

(1) Malay Kumar Ganguly; (2) Dr. Kunal Saha v Dr. Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221
(India), GOODMAN & GILLMAN, THE PHARMOLOGIAL BASIS OF THERAUPUETICS (11th ed. 2011).
26

(1) Malay Kumar Ganguly; (2) Dr. Kunal Saha v Dr. Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221
(India), P. E. Wolkenstein, J. C. Roujeau, J. Revuz, Drug-induced toxic epidermal necrolysis, 16 CLIN
DERMATOL 399-409 (1998).
27
Macdonald v. York country hospital corporation, [1972] 28 DLR (3d) 521, Zarb v. Odetoyinbo, [2006]
EWHC 2880 (Q.B.).
28
Payne v. St. Helier group hospital management committee, [1952] CLY 2992. Fraser v. Vancouver general
hospital, [1952] 2 S.C.R. 36 (S.C. Canada).
29
Code of Ethics Regulation, 2002, 4.3 (India)

20

8. Mr Debjyoti Sarkar after knowing the nature of the disease did not take necessary

steps which could have been taken to cure the disease. After Mrs Sharon Stanley was
handed over to the dermatologist, he did not make any drastic changes in the
treatment regimen of the patient.30 After the excessive administration of the steroid,
another drug was administered instead of making any efforts to reduce the toxic
nature of Depomedrol.31 Despite Toxic Epidermal Necrolysis being a threatening skin
condition. Mr Debjyoti Sarkar, did not take the obvious precautions. It is submitted
that there is a breach of duty of care by Mr Debjyoti Sarkar. Further, there are two
reasons to substantiate the above submission.

9. First, it has been supported by many authors and scholars that steroids cannot be used

because of the absence of dermal inflammatory infiltration.32 Owing to the variable


nature of disease which either happens in waves or in between 24 hours, the
necrolysis is generally aggravated by the high dose of steroid therapy. 33The steroids
should not be used routinely but are only justified in the early stages of drug induced
Toxic Epidermal Necrolysis.34 Therefore in such cases, the steroid therapy is illogical
in such patients (emphasis laid).35 The unpredictable course of the disease casts

30

Fact sheet, 7th para.


(1) Malay Kumar Ganguly; (2) Dr. Kunal Saha v Dr. Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221
(India), Dr. Balram Prasad and Others v. Dr. Kunal Saha and Another, (2014) 1 S.C.C. 384 (India).
32
TEN-Medical findings and prognosis in 87 patients, jean revuz from the archives of dermatology. The
resolution taken in international conference known as cretelis experience, 1987 authored by j revus and
jcroujeau( archives of dermatology, vol. 123, pages 1156-57). Schmidt- Westhausen AT, Gunnewald T, Peichart
A, et al., Oral manifestations of toxic epidermal necrolysis.(TEN) in patients with AIDS. Reports of 5 cases. 4
ORAL DIS 90 4 (1998).
33
Miyauchi H, Hosokawa H, Akaeda T, et al., T-cell subsets in dug induced toxic epidermal necrolysis, 127(6)
ARCH DERMATOL 851- 5 (1991). (1) Malay Kumar Ganguly; (2) Dr. Kunal Saha v Dr. Sukumar Mukherjee and
Others, (2009) 9 S.C.C. 221 (India).
34
Roujeau JC, Huyn NT, Bracq C, et al., Genetic susceptibility to toxic epidermal necrolysis, 123 ARCH
DERMATOL 1171-73 (1987).
35
Depew CL., Toxic epidermal necrolysis, 3 CRIT CARE NURS. CLIN NORTH AM. 255-67 (1991).
31

21

further doubt on the uncontrolled claims of the efficacy of steroid therapy. 36 Hence,
under the Bolitho (supra) standard the claim of the adequate standard of care has not
been met in this case.

10. Second, the treatment of Toxic Epidermal Necrolysis, may focus on early care of skin

and removing the external complications. Cultures from skin and mucosal erosions,
must be regularly performed. Blood gases and fluid, electrolytes and protein balance
must be monitored and adjusted appropriately. 37 Supportive care is of great
importance and particular attention must be paid to a high calorie and high - protein
diet.38 The respondents might contend that the administration of the steroid was
adequate. They may adduce expert evidence for supporting their claim. In spite of the
evidence in support of steroid therapy, it is submitted that it is open for the court to
reject such evidences applying the ordinary principles of credibility that would be
applied in the court room.39 Considering, that the doctor is a qualified dermatologist,
it is obvious that the measures related to the treatment of skin have to be necessarily
administered, especially when a life threatening disease is in question.40 In such a
case, which does not involve difficult or uncertain questions of medical or abstruse or
highly scientific issues, the question of experts is largely irrelevant.41

36

Correia 0, Delgado L, Ramos JP, et al., Cutaneous T-cell recruitment in toxic epidermal necrolysis: Further
evidence of CD8+ lymphocyte involvement, 129 ARCH DERMATOL 466-8 (1993). (1) Malay Kumar Ganguly; (2)
Dr. Kunal Saha v Dr. Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221 (India).
37
Barillo DJ, Goodwin CW, Dermatologists and the Burn centre, 17 DERMATOLOGIC CLINIC 61-75 (1999).
38
Bradley T, Brown RE, Kucan, et al., Toxic epidermal necrolysis A review and report of the successful use of
Biobrance for nearly wound coverage, 35 ANN PLANT BURG 124-32 (1995).
39
Teff H, The Standard of Care in Medical NegligenceMoving on from Bolam? 18.3 OXFORD JOURNAL OF
LEGAL STUDIES 473-484 (1998).
40
Penny v. East Kent Health Authority, [2000] P.N.L.R. 323 (C.A. Civil Div.).
41
Dwyer v. Roderick, [1983] 127 S.J. 806. MICHAEL JONES, MEDICAL NEGLIGENCE 458 (2008).

22

11. Hence it is submitted that the Mr Sachin Pawar and Mr Debjyoti Sarkar has violated

the duty of care.

[2]. THE INJURY OR DAMAGE WAS PROXIMATELY CAUSED BY THE BREACH OF DUTY BY MR
SACHIN PAWAR AND SARKAR.

12. In this case the damage which is suffered by the claimant is the loss of his wifes life.

There are two prominent tests in common law, the but for test and the loss of
chance test, which have been extensively used for establishing causation. It is
submitted that both the tests have been satisfied here in this particular case.

[A].The but for test has been satisfied.


13. The but for test is best expressed in the words of Lord Denning if you can say that

the damage would not have happened but for a particular fault then the fault is in the
cause of the damage.42 The respondent here is at fault for two reasons.

14. First, had Mr Sachin Pawar and Mr Debjyoti Sarkar, administered the adequate

amount of medicine and rightly diagnosed the disease, the death of Mrs Sharon
Stanley would not have occurred.

15. The respondent might contend that misdiagnosis of Toxic Epidermal Necrolysis as a

case of Vasculitis cannot be held as a cause of death of the patient. However it is

42

Barnett v. Chelsea & Kensington Hospital Management Committee, [1968] 1 All ER 1068 (H.L.).

23

submitted that the misdiagnosis has exposed Mrs Sharon Stanley to a material risk of
the harm she suffered.

16. Further it is an accepted solution in common law that where the defendants breach has

materially contributed to the risk, the burden of proof is on them to satisfy that the
risk did not materialise.43 It has also been held that it is an established fact that
conduct of a particular kind creates a risk that injury will be caused to another or
increases risk that injury will ensue and if the two parties stand in such a relationship
that one party is supposed to conduct himself in that way, but if he does, then the first
party is taken to have caused the injury by his breach of duty, even though the breach
cannot be ascertained.44 Hence the proven creation of the material risk of the harm
should be sufficient for liability.

17. Lately even in common law, it has been held that damages would be recoverable on

the basis of material risk alone.

[B]. Second, there was a loss of chance of the correct treatment, because of the
negligent treatment of doctors.
18. In the guidelines of the FDA, the statistics show that the Toxic Epidermal Necrolysis

being a rare disease, its chances are somewhere around 25%. The respondents might
contend that since the chances are less than 50%, the causal link cannot be
established.45 However in common law, it has been held that lack of liability for

43

Mcghee v. National Coal Board, [1972] 3 All ER 1008 (H.L.).


Bonnnington Castings Ltd. v. Wardlaw, [1956] A.C. 613 (H.L.). Nicholson v. Atlas Steel Foundry and
Engineering Co. Ltd., [1957] 1 W.L.R. 613 (H.L.).
45
Hotson v. East Berkshire Area Health Authority, [1987] A.C. 750 (H.L.).
44

24

failure to treat a patient whose chances of being cured by a successful cure by a


treatment are less than 50%, is unjust.46

19. Respondents might contend that the position has changed after Greggs v. Scott, and

the claimants have been denied compensation.47 However, it is submitted that the
liability was only restricted to cases where the damage has not yet occurred. 48 Indeed
in, some cases the plaintiff was alive for 10 years even after the original
misdiagnosis.49 The present case is easily distinguished as the claimant has died
because of the misdiagnosis coupled with the lack of care.50
In any case, the defendants are liable for the damages. It is submitted that when the
disease was diagnosed at the right time, the necessary steps could have been taken
then by the dermatologist. However Mr Debjyoti Sarkar failed to take the simple and
the most obvious precautions. In composite negligence the negligence actions of two
or more persons are so intertwined that they cannot be separated the doctors, in this
case they are liable for composite negligence.51

III.

WHETHER THE CLAIMANTS SHOULD BE AWARDED DAMAGES FOR MEDICAL


NEGLIGENCE OF DEFENDANTS?

46

Sir John Donaldson Mr. Hotson v. East Berkshire Area Health Authority, [1987] A.C. 750 (C.A.). Greggs v.
Scott, [2005] 2 WLR 268 (H.L.).
47
Greggs v. Scott, [2005] 2 W.L.R. 268 (H.L.).
48
Fairchild v. Glenhaven Funeral Service, [2002] 3 All ER 305 (H.L.).
49
Greggs v. Scott, [2005] 2 W.L.R. 268 (H.L.).
50
Greggs v. Scott, [2005] 2 W.L.R. 268 (H.L.).
51

25

Prior to the submissions, it is urged that the fundamental principle for awarding "just
compensation is based on "restitutio in integrum".52 The claimant must receive the sum of
money which would put him in the same position as he would have been if he had not
sustained the wrong.53
1.) THE CLAIMANTS ARE ENTITLED TO A JUST AND REASONABLE COMPENSATION.

1. It is submitted that Mrs Sharon Stanley was a gynaecologist, while calculating


compensation her status, future prospects and educational qualifications must be
judged.54Further, the fact that Depomedrol used at the rate of 80 mg twice daily was
in a clear violation of the manufacturers warning and admittedly the standard
protocol, which is a clear reprehensible act.55 Further, Mr Debjyoti Sarkar failed to
take the obvious precautions, aggravating the situation. Her husband has suffered the
loss of the consortium, loss of companionship, care and protection etc.

2. It is submitted that in awarding the compensation, the principle of restituto in


integrum is referred to award a just and adequate compensation.56 The court has
decided to take the status, future prospects and educational qualification for granting
an adequate compensation.57 In innumerable cases of common law, far bigger
amounts of the compensation has been routinely awarded.58 Further, this being a case

52

Dr. Balram Prasad and Others v. Dr. Kunal Saha and Another, (2014) 1 S.C.C. 384 (India), PETER ANDREWS
& TERENCE LEE, CATASTROPHIC INJURIES: A PRACTICAL GUIDE TO COMPENSATION 97,97 (1997).
53
Erlanger v. New Sombrero Phosphate Co., (1878) 3 App Cas 1218 (H.L.), Livingstone v. Rawyards Coal Co.,
(1880) 5 App Cas 25 (H.L.).
54
Line 1, para 1, fact sheet.
55
Line 2, para 3, fact sheet.
56
M JONES, MEDICAL NEGLIGENCE 352 (4thed. 2008), Times global Broadcasting Co. Ltd. v. Parshuram
Babaram Sawant, (2014) 1 S.C.C. 703 (India).
57
R. K. Malik and Another v. Kiran Pal and Others, (2009) 14 S.C.C. 1 (India), Arvind Kumar Mishra v. New
India Assurance Company Limited and Another, (2010) 10 S.C.C. 254 (India), Govind Yadav v. New India
Assurance, (2011) 10 SCC 683 (India), Ibrahim v. Raju and Others, 2012 (3) ALD (SC) 60 (India).
58
United India Insurance Company Limited and Others v. Patricia Jean Mahajan and Others, (2002) 6 S.C.C.
281 (India).

26

of medical negligence, the application of the multiplier method is erroneous in this


case.59 Compensation for the death of the patient from medical negligence cannot and
should not be compensated by using the multiplier method.60 A death of the patient
due to a reprehensible act of the doctor cannot be compared to an accident.61

3. It has been also held that punitive or exemplary damages have been justified as a
deterrent in the future for outrageous and reprehensible act on the part of the
accused.62 In fact punitive damages are routinely awarded in the medical negligence
cases in common law for such reprehensible acts, in order to send a deterrent message
to the medical community.63

4. The compensation must also be granted under the head non-pecuniary loss such as for
suffering pain, anxiety. The test to grant compensation under this head is more
peculiar to the facts and circumstances of each case.64 It depends on the comparative
severity of the injuries and any unusual deprivation which he may suffer. Specifically,
In case of marital relationship

59

Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Others, (2009) 6 S.C.C. 1 (India), (1) Malay
Kumar Ganguly; (2) Dr. Kunal Saha v Dr. Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221 (India), Dr.
Balram Prasad and Others v. Dr. Kunal Saha and Another, (2014) 1 S.C.C. 384 (India), Chistoph QuezelAmbrunaz, Compensation and Human Rights 4 NUJS LAW REVIEW 189 (2011), M. S. Grewal and Another v.
Deep Chand Sood and Others, (2001) 8 S.C.C. 151 (India).
60
Indian Medical Association v. V.P. Shanta, (1995) 6 S.C.C. 651 (India), Spring Meadows Hospital and
Another v. Harjol Ahluwalia, 1998 4 S.C.C. 39 (India), Smt. Savita Garg v. Director, National Heart
Institute, (2004) 8 S.C.C. 56 (India).
61
Sarla Verma and Others v. Delhi Transport Corporation and Another, (2009) 6 S.C.C. 121 (India), V. Kishan
Rao v. Nikhil Super Speciality Hospital and another, (2010) 5 S.C.C. 513 (India).
62
In Re: Destruction of Public & Private Properties v. State Of A.P. and Others, (2009) 5 S.C.C. 212 (India),
South Carolina Welch v. Epstien, 536 S.E.2d 408 (Ct. App. 2000).
63
Dardinger v. Anthem Blue Cross & Blue Sheild, 98 Ohio St.3d 77, Lata Wadhwa and Others v. State of Bihar
and Others, (2001) 8 S.C.C. 197 (India).
64
Santosh Devi v. National Insurance Company Ltd. and Others, (2012) 6 S.C.C. 421 (India).

27

[T]he loss of companionship, care and protection, etc., the spouse is entitled to get,
has to be compensated appropriately. The concept of non-pecuniary damage for loss
of consortium is one of the major heads of award of compensation.65

Hence it is submitted that the claimant is entitled to a fair and reasonable compensation in the
terms of pecuniary as well as non-pecuniary loss. The same being punitive or exemplary in
character has to be a large sum.

65

Sarla Verma and Others v. Delhi Transport Corporation and Another, (2009) 6 S.C.C. 121 (India), Lim Poh
Choo v. Camden and Islington Area Health Authority, [1980] A.C. 174 (H.L.).

28

29

PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Honble Court may be pleased to adjudge and declare that:
1. Anti Suit Injunction should not be granted.
2. Defendants are liable for medical negligence and should compensate the claimants.
And pass any other order that this Honble Court may deem fit in the interests of justice,
equity and good conscience.
All of which is humbly prayed,
,
Counsel for the Appellant.

30

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