Professional Documents
Culture Documents
Mr Tony Stanley
Claimant
v.
Mr Sachin Panwar
&
And Mr Debjyoti Sarkar
Respondents
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.
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
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
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
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
10
ISSUES RAISED
III. WHETHER
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
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
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 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
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
15
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
II.
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
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.
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
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
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
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
30
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
[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.
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
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
[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
24
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.
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.
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
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