BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION OF INDIA
APPEAL NO._______/2017

IN THE MATTER OF:-

Dr. Soni ....Appellant

VERSUS

Naresh ...Respondent

(Appeal On Behalf of Appellant Dr. Soni)

Counsel for the Appellant

ABHISHEK KAUSHIK
Roll No.: 176269
Section: I
Semester – V (2017-18)
Law Centre –I, Faculty of Law
Delhi University
 ___________________________________________________________________________
TABLE OF CONTENTS

PARTICULARS
PAGE NO.

LIST OF ABBREVIATIONS...................................................................................................... 3
INDEX OF AUTHORITIES....................................................................................................... 4
STATEMENT OF FACTS......................................................................................................... 6
STATEMENT OF JURISDICTION ............................................................................................. 8
STATEMENT OF ISSUES........................................................................................................ 9
SUMMARY OF ARGUMENTS................................................................................................. 10
ARGUMENTS ADVANCED..................................................................................................... 11
PRAYER................................................................................................................................ 20

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 BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION, NEW DELHI.

IN THE MATTER OF :

DR. SONI ----- APPELLANT

vs.

NARESH KUMAR & ORS ----- RESPONDENTS

AFFIDAVIT

I, Dr. Soni D/o Sh. X , aged about ___years R/o _____________________________, do

hereby solemnly affirm and declare as under :
1. That I am the Appellant in the above captioned case. I am well conversant with the
facts of the case and competent to swear this affidavit.

2. That the accompanying appeal has been drafted by the Counsel under my instructions.
I have read and understood the contents thereof and the same are true and correct to my
knowledge and as per records.

DEPONENT

VERIFICATION:
Verified at New Delhi on ___ day of_______________, that the contents of this
affidavit are true and correct to my knowledge, no part of it is false and nothing
material has been concealed therein.
DEPONENT

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________________________________________________________________________
LIST OF ABBREVIATIONS

& And

AIR All India Reporter

Anr. Another

Art. Article

CompLJ Company Law Journal

Edn. Edition

Govt. Government

Hon’ble Honourable

i.e. That is

Ltd. Limited

No. Number

Pvt. Private

SC Supreme Court

SCC Supreme Court Cases

v. Versus

Vol. Volume

www World Wide Web

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 I

NDEX OF AUTHORITIES

TABLE OF CASES

S.No. Name and Citation of Case

1. Synco Industries vs State Bank of Bikaner and Jaipur 2002 (1) SCR 225
2. Oriental Insurance Co. Ltd. V. Muni Mahesh Patel2 IV (2006) CPJ 1 (SC): 2006 (134)
company cases 103 (SC)
3. R.D. Papers Ltd. V. New India Assurance Co. Ltd. And Ors.3 I (2004) CPJ 101 (NC)
4. Vishamber Sunderdas Badlani And ... Vs Indian Bank And 3 Ors (2008) CPJ 76 (NC)
5. Jacob Mathew v. State of Punjab 2005 (3) CPJ 9
6. Moni v. State of Kerala 1912 SC (HL) 33
7. Ms. Kamani Sharma & Ors Vs. DR. Anil Nadir & Ors (CONSUMER CASE NO. 351 OF
2001)
8. Aleyamma Varghese v. Dewan Bahadur, (1997) 3 C.P.J. 165 (Kerala S.C.D.R.C.)
9. Stevenson, Jordan and Harrison Ltd v. McDonnell and Evans [1952] 1 TLR 101
10. Ferguson v John Dawson & Partners Ltd. [1976] 1 WLR 1213
11. Viasystems (Tyneside) Ltd. v Thermal Transfer (Northern) Ltd & Ors, [2005] EWCA Civ
1151, [2005] IRLR 983
12. Hawley v Luminar Leisure Ltd and others [2006] EWCA Civ 18
13. Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB 497

STATUTES

S.NO. LIST OF STATUTES

1. THE CONSUMER PROTECTION ACT, 1986

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 REFERENCES AND RESEARCH PAPERS

S.NO. NAME OF REFERENCES, RESEARCH PAPERS

1.
Marshall Allen, Article on mistakes and consequences, Scientific American.

2.
Reason J, Human error: models and management, BMJ. 2000 Mar 18;
320(7237):768-70

DYNAMIC LINKS

S.NO. LIST OF DYNAMIC LINKS

1. www.westlawindia.com

2. www.manupatra.com

3. www.indiakanoon.org

4. www.who.int

5. www.ncbi.nlm.nih.gov

BOOKS

S.NO. LIST OF BOOKS

1. Winfield & Jolowicz, “Law of Tort”, 18th edn., publisher Sweet & Maxwell South

Asian Edition, 2010

2. Gandhi, B.M., “Law of torts,” fourth edn, publisher Estern Book Company, 2011.

3. Ratanlal and Dhirajlal, “Law of torts,” 26th Edn., publisher Lexis Nexis,2013.

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 STATEMENT OF FACTS

1. That the Appellant is an Obstetrician working in a Delhi Hospital where the wife of the Respondent
undergone Pregnancy Delivery Procedure on 7th January, 2015.
2. That the Respondent works as a Teacher in the village primary school and is the husband of the
patient, who was negligently treated at the Delhi Hospital by the team of doctors headed by
Appellant as, alleged by him.
3. That the wife of the Respondent, Jyoti became pregnant after 5 years of her marriage with the
Respondent and she developed labour pains on 6th January, 2015. Taking note of the situation, the
family members of Jyoti took her to a Quack known as ‘Dai’ of the village. Being medically
illiterate, Sukho, the ‘Dai’ tried her skills and gave some unknown injections to the patient but the
labour failed to progress.
4. That after waiting for 24 hours and another 3-4 hours spent in conveyance, the Respondent and
other family members brought the patient to the hospital where the Appellant works and she
examined the patient and declared with unequivocal communication that it was a case of obstructed
labour and foetal distress which demanded urgent caesarean operation to bring out the baby. It was
also declared by the appellant to Respondent and his family that the chances of the survival of the
baby were remote.
5. That the Delhi Hospital obtained the written consent of the Respondent and his family members
prior to operating the patient. The original Consent Form is annexed with the petition as Annexure
AW1/1.
6. That despite the best efforts, the team of doctors headed by the Appellant at Delhi Hospital
consisting of an obstetrician, the anaesthetist and paediatrician failed to save the baby as the
chances of survival of baby were extremely remote. However, the team of doctors were successful
in saving the life of patient.
7. That two weeks later after the surgery, Jyoti, the patient started having fever and pain in the
abdomen. The patient was brought back to Delhi Hospital for the opinion. On the ultrasound
diagnosis of the patient, it was found out that a ‘Sponge’ was left out in the abdomen which had
caused the intra-abdominal sepsis to the patient.
8. That after learning this news, the Respondent became furious, used abusive language on the
Appellant and took his patient away against medical advice.

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9. That the Respondent took the patient to a government hospital where another surgery was
performed and the sponge as well as the pus was removed. The patient became well in about two
weeks and remained well thereafter.
10. That the Respondent filed a suit for damages in the District Consumer Redressal Forum against the
Appellant for medical negligence alleging that (a) his baby was lost due to negligent and deficient
resuscitation services and (b) his wife had to suffer another major operation and additional expenses
due to the negligent conduct of leaving a sponge in her abdomen. The Respondent has claimed a
total of Rupees Eight Lacs as the following :-

Loss of life of child Rs. 2 Lacs

Medical Expenses Rs. 3 Lacs
Pain, Suffering and Mental Agony Rs. 2 Lacs
Loss of Earnings for One Month Rs. 1 Lac
Total Rs. 8 Lacs

11. That the District Consumer Forum and State Consumer Disputes Redressal Commission have found
the Appellant negligent and granted damages of Rupees Eight Lacs as claimed by the Respondent.

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 ___________________________________________________________________________
STATEMENT OF JURISDICTION

An Appeal has been preferred before the Hon’ble National Consumer Disputes Redressal
Commission.

If the Hon’ble Commission thinks it appropriate to proceed in this matter, we humbly accept your
jurisdiction.

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___________________________________________________________________________
STATEMENT OF ISSUES

1) WHETHER THE SUIT FOR DAMAGES WAS MAINTAINABLE IN DISTRICT CONSUMER

REDRESSAL FORUM?
I) AS PER CONSUMER PROTECTION ACT, A COMPLAINT AND NOT A SUIT FOR
DAMAGES CAN BE FILED IN CONSUMER COURT.
II) THE FACTS OF THIS CASE ARE COMPLICATED & CONTESTED. IN VIEW OF THE SAME,
THIS CASE CALLS FOR A DETAILED TRIAL AS OPPOSED TO THE SUMMARY
PROCEDURE UNDER THE CONSUMER PROTECTION ACT.

2) WHETHER THERE WAS NEGLIGENCE ON PART OF THE APPELLANT?

I) WHETHER THE DEFENSE OF BONA FIDE ERROR OF JUDGMENT IS AVAILABLE TO THE

APPELLANT IN RELATION TO THE PRESENCE OF A FOREIGN BODY.

3) IF THE ANSWER TO THE ABOVE ISSUE IS IN AFFIRMATIVE, THEN WHO IS LIABLE TO PAY FOR
THE DAMAGES TO THE RESPONDENT?

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___________________________________________________________________________
SUMMARY OF ARGUMENTS

 WHETHER THE SUIT FOR DAMAGES WAS MAINTAINABLE IN DISTRICT

CONSUMER REDRESSAL FORUM?

o The Counsel here stresses that the suit for damages could not have been filed in
the District Commission since the Consumer Protection Act, 1986 requires the
filing of a complaint in order to start the proceedings under the Act.

o As per the Consumer Protection Act, 1986 a complaint and not a suit for
damages can be filed in Consumer Court.

o The facts of this case are complicated & contested. In view of the same, this
case calls for a detailed trial as opposed to the summary procedure under the
Consumer Protection Act, 1986.

 WHETHER THERE WAS NEGLIGENCE ON PART OF THE APPELLANT?

o The counsel here stresses that the applicant is not negligent in her act as she did
her best to save the lives of infant and the mother. Her duty to take care was
performed with utmost care and in the light of facts and circumstances of the
case she cannot be adjudged to be negligent in the error of judgment to count
the sponges by her supporting staff. The duty to ensure the correct count could
not be prioritized over the duty to stop bleeding and dress the patient up. Here
neither did she breach her duty to take care nor was the damage a result of her
negligence. Hence Dr. Soni cannot be adjudged as negligent in her act in the
present case.

o The defense of bona fide error of judgment is available to the appellant in

relation the presence a foreign body.

 IF THE ANSWER TO THE ABOVE ISSUE IS IN AFFIRMATIVE, THEN WHO IS LIABLE

TO PAY FOR THE DAMAGES TO THE RESPONDENT?

o The counsel here stresses that even if the court finds the petitioner guilty for the
negligence, the liability to pay compensation to the complainant lies with the
Hospital as per the principle of vicarious liability. Dr. Soni was acting in the
course of her employment with the private hospital. Further the patient entered
into the contract for medical service with the hospital. Hence, Dr. Soni cannot
be held liable to pay compensation to the complainant in the present matter.

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 ___________________________________________________________________________
ARGUMENTS ADVANCED

1. WHETHER THE SUIT FOR DAMAGES WAS MAINTAINABLE IN DISTRICT CONSUMER

REDRESSAL FORUM?

The Counsel would like to initiate its arguments by showing it to the court that the respondent
had filed a suit for damages in the District Consumer Redressal Forum, although the
Consumer Protection Act, 1986 requires a complaint to be filed in order to start proceedings in
the District Commission. This can be substantiated by Sections – 12 1 and 2(c)2 of the
Consumer Protection Act, 1986 which are stated as follows:

1
Section 12: Manner in which complaint shall be made.—(1) A complaint in relation to any goods sold or delivered or agreed to
be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by –
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to
be provided;
(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or
delivered or service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District
Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of
interests of the consumers in general.
(2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may
be prescribed.
(3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded
with or rejected:
Provided that a complaint shall not be rejected under this section unless an opportunity of being heard has been given to the
complainant:
Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which
the complaint was received.
(4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint
in the manner provided under this Act:
Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal
or any authority set up by or under any other law for the time being in force.
Explanation. - For the purpose of this section “recognised consumer association” means any voluntary consumer association
registered under the Companies Act, 1956 or any other law for the time being in force”.

2
Section 2(c): "complaint" means any allegation in writing made by a complainant that—
(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;
(ii) the goods bought by him or agreed to be bought by him; suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv) a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price
in excess of the price –
(a) fixed by or under any law for the time being in force
(b) displayed on the goods or any package containing such goods ;
(c) displayed on the price list exhibited by him by or under any law for the time being in force;
(d) agreed between the parties;

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 The counsel here advances his arguments by citing the case of Synco Industries vs State Bank
of Bikaner and Jaipur1 in which it was held that given the nature of the claim in the complaint
and the prayer for damages in the sum of rupees fifteen crores and for an additional sum of
rupees sixty lakh for covering the cost of travelling and other expenses incurred by the
appellant, it is obvious that very detailed evidence would have to be led, both to prove the
claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an
appropriate case to be heard and disposed of in a summary fashion. The National Commission
was right in giving to the appellant liberty to move the Civil Court. This is an appropriate
claim for a Civil Court to decide and obviously was not filed before a Civil Court to start with
because, before the Consumer Forum, any figure in damages can be claimed without having to
pay the Court-fees. This in that sense is an abuse of the process of the Consumer Forum.

In the case of Oriental Insurance Co. Ltd. V. Muni Mahesh Patel 2, it was held that
proceedings before the Commission are essentially summary in nature and adjudication of
issues which involve disputed factual questions should not be adjudicated. It is to be noted that
the Commission accepted that the insured was not a teacher. The complainant raised a dispute
about the genuineness of the documents (i.e. proposal forms) produced by the appellant.

The nature of proceedings before the Commission as noted above, are essentially in summary
nature. The factual position was required to be established by documents. The Commission
was required to examine whether in view of the disputed facts it would exercise the
jurisdiction. The State Commission was right in its view that the complex factual position
requires that the matter should be examined by an appropriate Court of law and not by the
Commission.

On the face of the complaint no argument is needed to show that a great deal of evidence both
oral and documentary would be required for the complainant to prove its case and the claim
would even otherwise show that complicated questions of facts and law would arise which is
not possible for the National Commission to decide in its summary jurisdiction. Supreme
Court in the case of Synco Industries vs State Bank of Bikaner and Jaipur, held that such
types of cases cannot be decided in summary jurisdiction of Consumer Forum. In Civil Court
parties will have full opportunity to lead evidence. Consumer Forum is not meant to try the
cases like the present one.

It was held in R.D. Papers Ltd. V. New India Assurance Co. Ltd. And Ors. 3 I (2004) CPJ
101 (NC) - after going through the complaint and the written version, it appears to us that the
complaint raised complicated questions of facts which cannot be decided by us in our
summary jurisdiction. It may be though the amount in this case is in few lakhs and when we
are receiving
complaints involving crores of rupees, but then enormous evidence would be required in the
present case especially in respect of allegation of forgery made by the complainant and denied
by the Insurance Company.

(v) goods which will be hazardous to life and safety when used or being offered for sale to the public,--
(A) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the
time being in force;
(B) if the trader could have known with due diligence that the goods so offered are unsafe to the public;
(vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the
service provider which such person could have known with due diligence to be injurious to life and safety;”.

1
See Synco Industries vs State Bank of Bikaner and Jaipur 2002 (1) SCR 225
2
See Oriental Insurance Co. Ltd. V. Muni Mahesh Patel IV (2006) CPJ 1 (SC): 2006 (134) company cases 103 (SC)

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3
See R.D. Papers Ltd. V. New India Assurance Co. Ltd. And Ors. I (2004) CPJ 101 (NC)

The Commission ought to have issued notice to the respondent and taken its pleadings on
record. Only when the pleadings for both parties were available should the Commission have
formed an opinion as to the nature and scope of inquiry, i.e. whether the questions arising for
decision
in the light of the pleadings of the parties required a detailed and complicated investigation
into the facts which was incapable of being undertaken in a summary and speedy manner.
Then the Commission could have justifiably formed an opinion on the need of driving away
the complainant to the Civil Court. Mere complicated nature of the facts and law arising for
decision would not be decisive.

In the case of Vishamber Sunderdas Badlani And ... Vs Indian Bank And 3, it was held -
seeing various judgments of the Supreme Court and this Commission, it is evident that
wherever not only the complicated questions of law but disputed questions of facts, relating to
unauthorised representations made about paying higher rate of interest and requirement of
recording voluminous evidence etc. and relating to forgery and conspiracy involving eight
persons and other points mentioned earlier are involved, it would be desirable that the matter
should not be dealt with by this Commission and could be relegated to the Civil Court. We
feel that in the present state of law and the observations of the Supreme Court itself and the
aforesaid circumstances, we cannot take any other view.

For the aforesaid reasons, we feel that this Commission should not entertain this complaint any
more. The complaint is dismissed accordingly. Parties are left to bear their own costs. The
complainants are at liberty to approach the Civil Court.

It is clear from above that the cases which involves contested facts should not be entertained
within the ambit of Consumer Protection Act, 1986. Rather, they should be refered to civil
courts to undergo proper trial as against the summary trial in Consumer Forums. In the present
case also, the facts are contested as can be seen as follows:
 The patient, Jyoti was taken to a village dai, who is not a professional doctor having the
requisite skills.
 The Dai gave her some injections only after which her condition got deteriorated due to
which the patient went into obstructed labour and foetal distress, but the respondent is
blaming doctor for the loss of baby, even though the caesarian operation was a success.
 They are asking for a compensation of Rs. 1 lakh for loss of salary, although no primary
school teacher has such a high salary and that too in a rural area of Haryana.
 It has been mentioned that the second surgery was carried out in a government hospital,
yet they are asking for Rs. 3 lakhs for medical expenses.

It is submitted that the facts of this case does not add up to anything logical and therefore, the
facts are to be regarded as contested and complicated, which need further examining in a
detailed manner.

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1
Vishamber Sunderdas Badlani And ... Vs Indian Bank And 3 Ors (2008) CPJ 76 (NC)

2. WHETHER THERE WAS NEGLIGENCE ON PART OF THE APPELLANT?

The Counsel would like to point out that Dr. Soni was accused of negligence upon detection of
a foreign body, a sponge, inside the abdomen of respondent's wife, Jyoti. Although, this
accusation of negligence prima facie attracts the maxim ‘Res Ipsa Loquitur’ which means the
things speak for itself, however, a detailed analysis of the facts and circumstances reveals an
alternate picture.

WHAT IS NEGLIGENCE

The Black's Law Dictionary defines negligence as 'the omission to do something which a
reasonable man, guided by those ordinary considerations which ordinarily regulate the human
affairs, would do or the doing of something which a reasonable and prudent man would not
do'.

Similarly, the Apex Court in Jacob Mathew v State Of Punjab2 held that the jurisprudential
concept of negligence defies any precise definition. Eminent jurists and leading judgments
have assigned various meanings to negligence. The concept as has been acceptable to Indian
jurisprudential thought is well-stated in Ratanlal3 – "Negligence is the breach of a duty caused
by the omission to do something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs would do, or doing something which a
prudent and reasonable man would not do. Actionable negligence consists in the neglect of the
use of ordinary care or skill towards a person to whom the defendant owes the duty of
observing ordinary care and skill, by which neglect the plaintiff has suffered an injury to his
person or property.

According to Charlesworth & Percy4, negligence has three meanings. These are: (i) a state of
mind, in which it is opposed to intention 5; (ii) careless conduct; and (iii) the breach of duty to
take care that is imposed by either common or statute law. All three meanings are applicable in
different circumstances but any one of them does not necessarily exclude the other meanings.

Similarly, as per Moni v. State of Kerala, "In the case of medical man, negligence means
failure to act by the standards of reasonably competent medical men at the time. There may be
one or more perfectly proper standards, and if he conforms to one of these proper standards,
then he is not negligent."
Lord Wright in Lochgelly Iron Coal co v M. Mullan5, said that negligence means more than
the heedless and careless conduct, whether omission or commission, it properly connotes the
complex concept of duty, breach and damage suffered by the person to whom the duty was
owed
2
Jacob Mathew v. State of Punjab 2005 (3) CPJ 9
3
Ratanlal & Dhirajlal , Law of Torts (Twenty-fourth Edition 2002, edited by Justice G.P. Singh). It is stated (at
p.441-442)
4
Charlesworth & Percy Negligence (Tenth Edition, 2001), stated in Jacob Mathew vs. State of Punjab 2005 (6) SCC 1
5
Ibid supra 11
5
Moni v. State of Kerala 1912 SC (HL) 33

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 INGREDIENTS OF NEGLIGENCE

For proving negligence, the respondent must prove:

1. That the defendant owes a duty of care to the plaintiff.
2. That the defendant has breached this duty of care.
3. That the plaintiff has suffered an injury due to this breach.

Therefore, a cause of action for negligence arises only when a damage occurs, for damage is a
necessary ingredient of this tort."

DUTY TO CARE

Dr. Soni had a fiduciary relation with Jyoti, the patient, and she was brought to the hospital in
an obstructed labour and foetal distress condition. Dr Soni and her team owed duty to care for
the life of the patient once she was admitted. The Counsel does not dispute the duty to take
care of the patient in the present matter. However, the doctor had the duty to perform a
caesarean surgery, which is a task of highest complexity.
The team which undertook the caesarean-section surgery was invested with the hope of saving
the lives of both, the infant & the mother. However, the obstructed labour condition had
deteriorated the chances of the infant’s survival. This was informed to the relatives, well in
advance, who then gave their informed consent in writing to the hospital. Dr. Soni, while
being apprehensive of the inherent danger involved, tried her best along with a pediatrician, an
anesthetist and other supporting staff to save both the lives. In the course of surgery, it was
ensured that the baby was not still born. However, the life of Jyoti was in danger which further
got aggravated with profuse bleeding amidst the surgery. The primary duty of the doctor here
was to save the life, given the complexity of the case. She had to stop the bleeding, dress up
the patient and to ensure that she was medically stable at that point of time. This duty to care
was well taken care of and performed with utmost care eliminating any chances for a breach of
the said duty. The baby was born alive and thus, the primary objective of the caesarean
operation was achieved successfully.

Even though the doctor was alleged of negligence, she did not have a primary duty to take the
counts of the sponges used in the surgery. It can be observed that as a leader of the team which
performed the surgery, Dr. Soni only had the managerial duty to ensure that the supporting
staff takes the count of sponges, before and after the surgery. She, in her capacity as a leading
doctor, performed that duty by asking the supporting staff about the counts, before the
commencement as well as after the end of surgery. Hence, the duty to take reasonable care
was performed by Dr. Soni and therefore, she cannot be held as negligent or liable for
dereliction of duties.

BREACH OF DUTY TO CARE

A prima facie look at the situation seems to suggest that the very presence of the foreign body
reveals negligence attracting the maxim Res Ipsa Loquitur, which says the 'thing speaks for
itself". However, here the duty to take care was not breached, as the doctor herself ensured
that the life of the patient was saved and the count of the sponges was asked proactively. The
presence of a foreign body was a result of an error of judgment of the supporting staff and not
a result of negligence of the doctor. There was no willful omission of duty as the doctor

15 | P a g e
ensured to ask about the count being taken at regular intervals. A possible error of judgment
in taking an exact count is to be regarded only as human in nature and such an error is
impossible to be eliminated in the realm of human performance. Moreover, an error of
judgment by the supporting staff in making the exact count of the sponges could not have been
ensured by the doctor, who was busy in ceasing the profuse bleeding. In a case where the ship
is caught in a disturbing storm, the primary duty of the captain is to navigate the vessel
through the storm and his managerial duty to take care of the resource inventory management
becomes secondary, where it is delegated. The situation is similar in this case, where Dr. Soni
was expected to stop the bleeding and save the life of the patient, in which she succeeded.

The degree of skill and care required by a medical practitioner as explained in Halsbury’s law
of England is that the practitioner must bring to his task a reasonable degree of skill and
knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very
low degree of care and competence, judged in the light of the particular circumstances of each
case, is what the law requires, and a person is not liable of negligence because someone else of
greater skill and knowledge would have prescribed different treatment or operated in a
different way; nor is he guilty of negligence if he has acted in accordance with a practice
accepted as proper by a reasonable body of medical men skilled in that particular art, even
though a body of adverse opinion also existed among medical men.

ERROR OF JUDGMENT

An error is defined as the failure of a planned action to be completed as intended (i.e. error of
execution) or the use of a wrong plan to achieve an aim (i.e. error of planning). Leape defines
an error as an “unintended act (either omission or commission) or an act that does not achieve
its intended outcome”. Reason defines it as “failure of a planned sequence of mental or
physical activities to achieve its intended outcome when these failures cannot be attributed to
chance". Although many classifications of medical errors have been presented, the most used
is that published by the Institute of Medicine in an extensive report “To err is Human:
building a safer health system, 1999”. In the report, inevitable errors are surveyed in surgery
and was found to exist as technical errors (19.3% of all errors), medication errors (13.7%),
errors related to testing (10.4%), errors in surgical planning (9.9%), equipment-related errors
(9.4%), post-operative errors (8.5%), wrong site surgery (6.1%) in the sample studied. "To Err
Is Human" report, dropped a bombshell on the medical community by reporting that up to
98,000 people a year die because of mistakes in hospitals. In 2010, the Office of Inspector
General for Health and Human Services said that bad hospital care contributed to the deaths of
180,000 patients in Medicare alone in a given year. The latest study published in the 2014
issue of the Journal of Patient Safety that says that the numbers may be much higher between
210,000 and 440,000. Patients, each year, who go to the hospital for care suffer some type of
preventable harm that contributes to their death, the study says. That would make medical
errors the third-leading cause of death in America, after heart disease, which is the first, and
cancer, which is the second.

Thus, an error becomes inevitable in most of the cases except where adverse events can be
prevented. An adverse event is an injury caused by medical management rather than the
underlying condition of the patient. An adverse event caused by an error is a preventable
adverse event. In the present case, the miscount was not an adverse event but an inevitable and
accidental error. Such an error may not recur and depends on an array of conditions ranging
from the complexity of the situation, uncertainty, communication, working hours,
infrastructural support, personal attention etc.

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Reason J explained the futility of blaming individuals for inevitable errors as follows:
"The human fallibility in the current case cannot be accounted for individual fault whereas it
can be accounted for system error. The blame for forgetfulness, carelessness or moral
weakness of an individual cannot eliminate the inherent errors of system i.e., conditions under
which individuals work and tries to build defense to avert errors or mitigate their effects.
Humans are fallible and errors are to be expected, even in the best organizations. It is often the
best people who make the worst mistakes (error is not the monopoly of an unfortunate few).
Secondly, far from being random, mishaps tend to fall into recurrent patterns".

Hence, the error of judgment in making a correct count of sponges in the current case cannot
be adjudged as negligence in the part of surgeon who performed the surgery. Therefore, there
is no breach of duty involved.
In the case of Ms. Kamami Sharma & Ors. Vs Anil Nadir & Ors.1, the National Consumer
Redressal Forum made a distinction between medical negligence and error of judgment while
rejecting a complaint against a private hospital in Delhi.

In Aleyamma Varghese v. Dewan Bahadur2, the reasoning given by the Kerala State
Commission is important in the current context. It was observed, - "The crucial question to be
considered is whether there is any negligence on the part of the opposite parties in leaving
behind a large sponge before closing abdomen after caesarian operation. That a large sponge
was left behind cannot be disputed as it is proved beyond doubt......... Though RW1 stated that
it was the normal practice to count the instruments and sponges before the abdomen was
closed after the operation and such procedure was followed in this case also, however, we are
unable to accept that part of evidence as it is established beyond doubt in the instant case that
there was a foreign body, namely a large sponge in the abdomen and that led to all the
complications which could not have been diagnosed by the doctors at the first opposite party
hospital. There was no attempt for taking CT scan of the abdomen. Normally, the counting is
done by the nursing staff and the doctors cannot be expected to do that and therefore, we
cannot say that there is any negligence on the part of the doctors in failing to count the sponge.
Both by Dr. Rajan Thomas, the Head of the Surgery of the Lisie Hospital and also RW1 have
deposed that the counting was done by the scrub nurse. In the circumstances, we can only hold
that there is negligence on part of scrub nurse in counting the sponges which led to the
complications. We have, therefore, no hesitation to hold that the first opposite party as
employer is vicariously liable to compensate the complainant for all the losses suffered and
complications sustained by the patient."

DAMAGE/ INJURY

In the present case, the objective of the surgery was to save the lives and the doctor performed
her duty with utmost care. It shall be noted, that the infant lost its life only because of an
obstructed condition and not because of the negligence of the doctor herself or because of the
caesarean operation, as the baby was born alive. The pain suffered by the lady is not a result of
the negligence of the doctor, but was a result of an unavoidable error of judgment. Moreover,
the accusations by the plaintiff are exaggerated as he contends on behalf of his wife and not
for the pain he underwent himself.

1
Ms. Kamani Sharma & Ors Vs. DR. Anil Nadir & Ors (CONSUMER CASE NO. 351 OF 2001)

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2
Aleyamma Varghese v. Dewan Bahadur, (1997) 3 C.P.J. 165 (Kerala S.C.D.R.C.)

3. IF IT IS A CASE OF CONTRIBUTORY NEGLIGENCE, WERE DISTRICT FORUM AND STATE

COMMISSION JUSTIFIED IN UPHOLDING THE QUANTUM OF DAMAGES CLAIMED BY THE

RESPONDENT?

The Counsel here advances his arguments by submitting that even if the court finds the
appellant guilty for negligence, the liability to pay compensation to the respondent lies with
the Hospital as per the principle of vicarious liability.
Vicarious liability is where a person is held liable for the torts of another, even though that
person did not commit the act himself. It is, therefore, a form of strict liability (in that the
defendant is not at fault). The most common form of vicarious liability is when employers are
held liable for the torts of their employees that are committed during the course of
employment. The issue of vicarious liability can be seen to be unjust in that someone who is
not at fault can be held liable.
Vicarious liability is a form of a strict, secondary liability that arises under the common law
doctrine of agency, respondeat superior, i.e. the responsibility of the superior for the acts of
their subordinate or, in a broader sense, the responsibility of any third party that had the "right,
ability or duty to control" the activities of the violator.
Employers are vicariously liable, according to the doctrine of respondeat superior, for
negligent acts or omissions by their employees in the course of employment (sometimes
referred to as 'scope and course of employment'). To determine whether an employer is liable
or not, the difference between an independent contractor and an employee is to be drawn. In
order to be vicariously liable, there must be a requisite relationship between the defendant the
tortfeasor, which could be examined by the following three tests:

 Control test
 Organisation test
 Sufficient relationship test

The ‘Organisation test’ makes a distinction between a contract of service, whereby ‘a man is
employed as part of the business and his work is done as an integral part of the business’ and a
contract for services, whereby ‘work, although done for the business, is not integrated into it
but is only an accessory to it’
In Stevenson v. McDonnell1, it was held that to determine whether an employer/employee
relationship exists, the courts will examine whether the performer's work was integrated into
the employer's enterprise, or was it merely ancillary to it. Similarly, in Ferguson v John
Dawson2, the court of appeal held that a labourer was an employee on the basis of the type of
work done and the control exercised, despite of the contract noting unemployment.
Additionally, in the case of Viasystems (Tyneside) Ltd. v Thermal Transfer (Northern) Ltd &
Ors.3, two employers were found to be vicariously liable by the Court of Appeal, as the

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important fact was that both were having the right to control. Similarly, in the case of Hawley
v Luminar Leisure Ltd1, it was held that, - ‘it is not always appropriate to attribute vicarious
liability to two parties; where there has been effectively and substantially a transfer of control
and responsibility from one employer to another, the latter will be liable’. Further, in Ready
Mixed Concrete Ltd v Minister of Pensions2, it was laid down that there were three conditions
that had to be met before a worker would be considered to be an employee: firstly, the
employee must provide work or skill for the employer in return for payment of a wage or some
other remuneration; the employee agrees, expressly or implicitly, secondly, that they will work
under the control of the employer; and thirdly, all other circumstances are consistent with the
situation being characterized as a contract of employment.
Therefore, the employer may be held liable as per the principles of vicarious liability, if an
employee does an authorized act in course of his/her employment. Dr. Soni, in the present
case, was acting in the course of her employment with the private hospital. Further, the patient
entered into a contract for medical services with the hospital and not Dr. Soni. Hence, the
appellant Dr. Soni could not be held liable to pay compensation to the respondent in the
present matter.

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 PRAYER

Therefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is humbly requested that this Hon’ble Commission may be pleased to adjudge and
declare or issue:

1. That the District Redressal Forum has no jurisdiction in the present case.
2. That the decision of State commission be set aside and petitioner be held not negligent.
3. That the Respondent cannot claim compensation from the petitioner.

And pass any such order or direction as the Hon’ble Commission deems fit and proper in the
facts and circumstances of this case, for this the petitioners shall duty bound pray.

Sd/- ……………………

(Counsel for the “Appellant”)

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