TEAM CODE : ZL-53

9 TH ZEAL INTERNAL MOOT COURT COMPETITION, 2024

BEFORE THE HON’BLE SUPREME COURT OF TITAN

UNDER ARTICLE 226 OF THE CONSTITUTION OF TITAN

IN THE MATTERS OF

Mr. Robert Swift……PETITIONER

VERSUS

St. Vincent Hospital .…..RESPONDENT

MEMORANDUM ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

1. TABLE OF CONTENTS ………………………………..

2. LIST OF ABBREVIATIONS ………….………………
3. INDEX OF AUTHORITIES ..……………………………
4. STATEMENT OF JURISDICTION ………………
5. STATEMENT OF FACTS....………………
6. STATEMENT OF ISSUES... ……………………………
7. SUMMARY OF ARGUMENTS …………………………
8. ARGUMENTS ADVANCED ………………………………
9. PRAYER………………

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LIST OF ABBREVIATIONS

ABBREVIATION MEANING
¶ Paragraph
& AND

Art ARTICLE
Hon’ble Honourable

SC Supreme Court
Sec SECTION

i.e. THAT IS

HC HIGH COURT
u/a UNDER ARTICLE

SCC Supreme Court Cases

UOI Union of India

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SERIAL TITLE CITATION. FOOTNOTE PAGE

NO. NO. NO.
1. L. Chandra Kumar v. Union of AIR 1997 SUPREME
India COURT 1125

2. A.K. Kraipak v. Union of India AIR 1970

SUPREME COURT
150

3. Union of India v. T.R. Varma 1957 AIR 882, 1958

SCR 499

4. Olga Tellis v. Bombay Municipal 1986 AIR 180, 1985

Corporation SCR SUPL. (2) 51

5. Vishaka v. State of Rajasthan AIR 1997

SUPREME COURT
3011

6. Maneka Gandhi v. Union of India 1978 AIR 597

7. Jacob Mathew v. State of Punjab AIR 2005

SUPREME COURT
3180

INDEX OF AUTHORITIES

A. PRIMARY SOURCE

SERIAL NO. NAME OF THE STATUTE

1. Constitution of India, 1950

B. SUPREME COURT CASES

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8. Samira Kohli v. Dr. Prabha AIR 2008 SUPREME

Manchanda COURT 1385

9. V. Kishan Rao v. Nikhil Super

Specialty Hospital
10. Indian Medical Association v. V.P. 1996 AIR 550, 1995 SCC
Shantha (6) 651

11. Poonam Verma v. Ashwin Patel 1996 AIR 2111, 1996 SCC
(4) 332
12. Aruna Shanbaug v. Union of India AIR 2011 SUPREME
COURT 1290
13. The Management of Express 1963 AIR 569, 1963 SCR
Newspapers Ltd. v. The Workmen (3) 540
14. The Management of Express 1963 AIR 569, 1963 SCR
Newspapers Ltd. v. The Workmen (3) 540
15. Smt. Seema v. Shri Prakash Chand AIR 2006 SUPREME
(2006) 6 SCC 17 COURT 1158
16. Dr. Balram Prasad v. State of Bihar AIR 1997 SUPREME
COURT 1830
STATUTES REFERRED:

1. Constitution of India, 1950

2. The Indian Medical Council Act, 1956

3. The Consumer Protection Act, 2019

SECONDRY SOURCE3

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BOOK

SERIAL TITLE FOOTNOTE PAGE NO.

NO . NO.
1. Medical Negligence and the Law in India by Dr. Kusum

2. The Law of Torts by Ratanlal & Dhirajlal

3. Consumer Protection Law in India by V.K. Aggarwal

4. Principles of Medical Law by Ian Kennedy and Andrew

Grubb

SCHOLARY ARTICLE AND JOURNAL

SERIAL TITLE FOOTNO PAGE

NO. TE NO. NO.
1. Medical Negligence in India: A Critical Study by Dr.
Justice Y.K. Sabharwal

2. Consent and Medical Malpractice: A Legal Analysis

by Dr. J.V. Govindarajan
3. Vicarious Liability of Hospitals for Medical
Negligence by Harish K. Sethi

LEGISLATION AND LEGAL DATABESES

SERIAL NO. NAME OF DATABASE

1. Indian Kanoon
2. Case mine
3. Scc online

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble High Court of Titan under Article 226 of the
Constitution of Titan.

Article 226reads as follows:

1. The High Court may not entertain a writ petition if an effective alternate remedy is
available.

2. If a statute establishes a right and specifies a procedure for upholding it, the High
Court must use the statutory remedy before using the discretionary remedy.

3. The High Court may not grant jurisdiction if there are contested factual issues.

4. The High Court may exercise its writ jurisdiction if the writ petition seeks
enforcement of fundamental rights.

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STATEMENT OF FACTS

Background

Sokovia, a nation in South Nirvana, is recognized for its diverse geography and rapid
economic growth, supported by a strong service sector and a burgeoning technology industry.
Despite its progress, Sokovia faces challenges in sectors like infrastructure and healthcare.
The city of Hogsmeade is known for its advanced educational and healthcare institutions,
including Sherman Oaks High, where the incident that led to this case occurred.

The Incident

On 29th June 2024, during a regular school day at Sherman Oaks High, 16-year-old Drako
Swift was seated by a window in his classroom on the 1st floor, engrossed in a Physics
lesson. Meanwhile, the school’s football team was practicing outside. During the practice, a
powerful kick sent the football flying off course towards the school building. The ball
smashed through the classroom window near Drako, shattering the glass. Drako was severely
injured as shards of glass pierced his head, causing significant bleeding. The teacher quickly
called for medical help, and Drako was rushed to St. Vincent Hospital, a well-known private
facility.

Medical Intervention

Upon Drako’s arrival at St. Vincent Hospital, his parents, Mr. and Mrs. Swift, were informed
of the severity of his injuries. The hospital staff emphasized the need for immediate surgery
to save Drako’s life. Dr. Kendrick House, a renowned neurosurgeon, was called in to perform
the operation. With the Swifts’ consent, Dr. House proceeded with a delicate surgery, during

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which he encountered complications. While removing a shard of glass near Drako’s brain,
Dr. House inadvertently ruptured a nerve, leading to the formation of a blood clot.

Second Surgery and Complications

Approximately forty minutes after the first surgery, Dr. House made the urgent decision to
perform a second surgery to remove the clot, recognizing its life-threatening potential. Due to
the critical nature of the situation, Dr. House proceeded without obtaining additional consent
from Drako’s parents. Following the second surgery, Drako was placed in the Intensive Care
Unit (ICU) under close observation. However, his condition worsened, and on 1st July 2024,
Drako succumbed to his injuries.

Legal Action

The Swifts were initially unaware that a second surgery had been performed. An autopsy
conducted on 5th July 2024 revealed two distinct surgical incision marks on Drako’s head,
raising suspicions about the medical procedures carried out. Aggrieved by the lack of
communication and consent regarding the second surgery, Mr. and Mrs. Swift lodged a
formal complaint against St. Vincent Hospital and Dr. Kendrick House, alleging medical
negligence. They asserted that the decision to proceed with the second surgery without their
consent, combined with the worsening of Drako’s condition, constituted gross negligence.

Proceedings

The complaint was initially submitted to the Medical Council, which, after an extensive
investigation, ruled on 5th August 2024 that Dr. House was not liable for medical negligence.
Dissatisfied with this decision, Drako’s parents filed a writ petition in the Hon’ble High
Court of Titan. The court is now set to adjudicate on several legal issues, including whether
Dr. Kendrick House is liable for medical negligence under Section 106(1) of the Sokovian
Nyaya Sanhita, and whether St. Vincent Hospital can be held vicariously liable for the actions
of its staff.

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STATEMENT OF ISSUES

ISSUE 1
Whether the writ petition is maintainable in the Hon’ble High
Court of Titan?
ISSUE 2
Whether Dr. Kendrick House is liable for medical negligence
under Section 106(1) of Sokovian Nyaya Sanhita?

ISSUE 3
Whether St Vincent hospital can be held vicariously liable for
the actions of its staff?

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SUMMARY OF ARGUMENTS

ISSUE 1
The counsel humbly submits before the Hon’ble Bench that under Article 226 of the Constitution of
Sokovia, the High Court of Titan can well entertain the writ petition filed by Mr. and Mrs. Swift on
grounds of procedural unfairness and the breach of fundamental rights of the parties involved. The
issue is that failure by the Medical Council to investigate Dr. House's informed consent in allowing
another surgery of Drako was a violation of natural justice and a violation of the rights of parents to
participate in the son's medical care. The petitioners have proceeded and exhausted all alternative
remedies before the Medical Council whose investigation proved inadequate. The professional
grounds of obligation and liabilities have been infringed in special situations, particularly under a
non-medical emergency. In such circumstances, it also violates Article 21, both the right to life and
bodily integrity on part of the respondent. This case brings under spotlight considerable public
interest concerns in medical practice as well as particularly concerning minors and rights that
parents have in making informed decisions. It is, therefore, founded on infringement of
constitutional rights and judicial review aimed at vindication of procedural unfairness.

ISSUE 2
The counsel for the Petitioner humbly submits before the Hon’ble High Court of Titan that Dr.
Kendrick House is liable for medical negligence under Section 106(1) of the Sokovian Nyaya Sanhita.
In the context of medical negligence, it is imperative to understand that the duty of care owed by a
senior neurosurgeon is paramount. Dr. House, entrusted with the care of Drako Swift, breached this
duty on multiple counts, leading to the tragic outcome of Drako's death.

Firstly, Dr. House’s breach of duty of care stems from his actions during the first surgery,
wherein he committed a surgical error by rupturing a nerve, leading to a dangerous blood
clot. As a senior neurosurgeon, it was his responsibility to perform the surgery with utmost
precision. This failure reflects a deviation from the standard of care expected of a
professional of his standing.

Secondly, Dr. House proceeded with a second surgery without securing informed consent
from Drako’s parents. Informed consent is a cornerstone of medical practice, both legally and
ethically, particularly in Sokovia, where laws explicitly mandate the need for consent in
major medical interventions. Dr. House had a window of forty minutes during which he could
have consulted Drako’s parents, yet he failed to do so.

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Furthermore, the lack of communication and consent for the second surgery cannot be
justified by any claims of emergency. The situation did not meet the threshold of an
emergency that would allow bypassing the consent requirement. As a result, Dr. House’s
actions were both legally and ethically indefensible.

In addition to these breaches, it must be demonstrated that Dr. House’s actions directly
contributed to Drako’s death. The causal link is clear: the initial surgical error caused
complications, which were exacerbated by the unauthorized second surgery, ultimately
leading to Drako’s deterioration and death. The principle of res ipsa loquitur applies in this
case, as the outcome—death following a second unauthorized surgery—would not have
occurred in the ordinary course of events had reasonable care been exercised.

ISSUE 3
The counsel for Appellant humbly submits before the Hon’ble Bench that there has been vicarious
liability of the St vincent hospital In the context of medical practice in India, under the principle of
Section 34 of Indian Penal Code, 1860 and Article 300 Constitution of India addresses the principle of
vicarious liability in the context of criminal acts. While primarily concerned with criminal liability, it
provides a foundational understanding of how liability might extend to institutions for the actions of
their employees. Applying this principle to the civil context of medical negligence involves assessing
whether the unauthorized surgery was carried out in the course of employment and whether the
hospital can be held liable. In the context of medical practice in India, the principle of vicarious
liability is crucial in determining the extent to which a hospital can be held accountable for the actions
of its employees, including surgeons. A significant legal and ethical issue arises when a surgeon
performs an additional surgical procedure without obtaining the patient's consent. This situation raises
questions about whether the hospital, as the surgeon’s employer, can be held vicariously liable for the
unauthorized procedure. To address this issue comprehensively, it is essential to examine the relevant
provisions of Indian law that govern consent, the scope of employment, and institutional oversight.

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ARGUMENTS ADVANCED

ISSUE I:Whether the writ petition is maintainable in the Hon’ble High Court of Titan?

I. Whether the High Court Has Jurisdiction Under Article 226 of the Constitution of Sokovia?

The Hon'ble High Court of Titan is well within its jurisdiction to entertain the writ petition
filed by Mr. and Mrs. Swift under Article 226 of the Constitution of Sokovia. This provision
confers high discretionary powers upon the High Court to issue writs for not only the
enforcement of fundamental rights but also "for any other purpose."L. Chandra Kumar v.
Union of India is a leading case decided by the Indian Supreme Court in 1997 to the effect
that judicial review is a basic feature of the Constitution and therefore High Courts are duty-
bound to provide fairness to administrative [Link] task of the High Court is to intervene
in a case where an issue of procedural fairness arises. It is in such circumstances that the
review of the decision of the Medical Council is sought here, where there is, it is said, an
inadequate investigation into the lack of informed consent prior to the second surgery by
Drako. This is not only procedurally defective but also fundamentally unjust, allowing the
Court's supervisory jurisdiction to ensure that such a decision conforms to the principles of
fairness, justice, and reasonableness.

II. Whether Procedural Unfairness and Breach of Natural Justice Justify the Writ Petition?

The core issue of this writ petition pertains to the Medical Council failing to investigate Dr.
Kendrick House for an alleged breach of informed consent before he performed the second
surgery on Drako. Such an omission is a clear breach of the principles of natural justice that
lead to the corresponding principles of procedural fairness. further, in A.K. Kraipak v.
Union of India (1970), the Supreme Court of India underlined its position where even an
administrative agency should rely on natural justice provisions while passing orders that
bring individual rights into operation.

In the instant case, here, on one hand, Dr. House conducted the second surgery without
consulting Drokos's legal guardians in violation of their rights; on the other hand, there is a
procedural failure in the order of the Medical Council as it refuses to give effect to the

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important principle of audi alteram partem-the right to be heard. This Hon'ble Court has to
respect the breach because it denies the rights of the petitioners for their participation in the
medical care of their son.

III. Whether the Petitioners Have Exhausted Alternative Remedies?

Immediately after the tragic death of Drako, the petitioners approached the relevant
administrative authority, the Medical Council, with redress against what they perceived to be
medical negligence. The investigation conducted by the Council was cursory and did not
probe into the lack of informed consent, resulting in a miscarriage of justice by exonerating
Dr. House.

The Supreme Court has held in the judgment of Union of India v. T.R. Varma (1957) that even where
there is an alternative remedy, it would not oust the jurisdiction of the High Court under Article 226,
especially where the violation of the principles of natural justice is clear. Here, the petitioners do not
have any effective remedy available to them; recourse to this Hon'ble Court is both justified and
necessary.
IV. Whether There Is a Violation of Fundamental Rights?

By raising this identical aspect under Article 21 of the Constitution of Sokovia, which is in respect of
the Indian Constitution also, this petition addresses the issue of whether right to life and bodily
integrity include the right to take away a patient's inner resistance- that is, informed consent- before
medical procedures. This right of informed consent is actually violated when Dr. House fails to get
consent in the second surgery where neither was a medical emergency and consent was not sought
from Drako's parents.

Failure to investigate this breach by the Medical Council directly violates the right of Drako to life
and the rights of his parents to make decisions on his care.

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V. Whether the Absence of Emergency Justifies the Breach of Informed Consent?

It is argued that the Medical Council acquitted Dr. House's conduct because there was no imminent
danger to the life of Drako. Hence, there was no justification for circumventing the legal mandate of
informed consent. The autopsy and findings led to no emergency from the medical standpoint of view.
According to Indian Supreme Court's Olga Tellis v. Bombay Municipal Corporation, 1986, it was
held that right to life is a procedural safeguard. In this case, the Medical Council failed to take
consent and further failed to investigate the matter by which it incurred violation of Article 21, which
casts procedural protections.
VI. Whether This Case Raises Public Interest Concerns?

The writ petition not only claims legal rights but also raises very substantial public interest concerns
that revolve around accountability in medical practice. Beyond personal loss, it is, after all, the
pursuit of justice of the petitioners that serves a broader societal purpose by holding medical
professionals and institutions accountable for the legal standard of care expected of them regarding
patients, especially minors.

In Vishaka v. State of Rajasthan, 1997, the Supreme Court lays a great emphasis that courts have to
intervene when the institutional safeguards fail. Here, the Medical Council's decision deprecates the
fundamental importance of informed consent; therefore, it becomes a matter of public importance for
intervention by this Hon'ble Court.
VII. Whether the Writ Petition is Maintainable Due to the Violation of Fundamental Rights?

[Link] writ petition is surely maintainable since it finds its basis from the infringement of the
fundamental rights, including a right to life and the right over one's body. Maneka Gandhi v.
Union of India: The Indian Supreme Court established that there is also a right of personal
liberty wherein the basic issue is with regard to decisions over one's body and health, under
Article 21.

The other decision of Dr. House to do the surgery on Drako without the consent of the parents has
disallowed the parents to take a rational decision, hence denying them their constitutional rights. This
violation coupled with the fact that all avenues have been exhausted calls for urgent intervention of
this Hon'ble Court.

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ISSUE 2 Whether Dr. Kendrick House is liable for medical negligence under Section
106(1) of Sokovian Nyaya Sanhita?

It is, therefore, submitted before the Hon'ble High Court of Titan that Dr. Kendrick House
will be liable for medical negligence under Section 106(1) of Sokovian Nyaya Sanhita.
Besides, the professional duty of a medical practitioner does not only include surgical
interventions with adequate skill and care but also includes the duty in which the patient's
guardians are well in the know about the major medical intervention barring exceptional
circumstances. Gross medical negligence can be determined in the present case by the
failure to get parental consent for a follow up surgery that eventuates in the patient's later
death.

2.1 Dr. Kendrick House's Breach of Duty of Care as a Senior Neurosurgeon

It is submitted that, at the heart of medical negligence claims lies the duty of care a
healthcare provider owes to their patient. In this case, Dr. Kendrick House is the famous
senior neurosurgeon in St. Vincent Hospital 1. He is charged with treating Drako Swift. 2
With his special knowledge and experiences Dr. House was considered to be obliged to
carry out his practice according to the highest standards in medical care. The question
before this court is whether Dr. House's acts, if they are to be characterized as the conduct
of a reasonably prudent doctor, fell short of these standards, thus amounting to a breach of
duty and contributing the tragic death of Drako 3
2.1.1 Dr. House Owed A Duty Of Care To The Petitioner.
As such, it is submitted that in the context of medical negligence, the duty of care must be
subjected to assessment based on the role and expertise of the medical professional. Being a
senior neurosurgeon, Dr. House was obliged to exercise a high degree of skill and diligence
in treatment of injuries suffered by Drako. The section above frames the scope of this duty,
which would relate to legal and ethical requirements exerted on Dr. House as a specialist
neurosurgeon to inform and include the patient's guardians in medical decision making.
Dr. House, being a senior neurosurgeon at St. Vincent Hospital, owed a duty of care over
Drako. Such a duty required him to: Administer the patient with due competence according
to the standard medical practice Treat the patient with minimum obligation when the
1
Moot preposition ¶6
2
Moot preposition ¶12
3
Moot prepositioion ¶13

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treatment involved. Inform the patient's guardians of the dangers of treatment and seek
consent from them before any medical intervention The nature of the injuries suffered by
Drako because of glass shards presented something that needed delicate and specialized
treatment. It was going to be the most professional handling of the case because, as a matter
of fact, it involves such an essential and sensitive case as that of injuries that have occurred
in Drako's case.

2.1.2 Specific Actions That Constitute a Breach of Duty by Dr. House.

It is submitted that Dr House was in breach of his duty of care through critical failures in
the care he offered firstly as regards the surgical error at the initial surgery and then his
decision to carry out a second surgery without seeking consent from the parents of Drako. 4
Such acts are well outside the standard of care required and reflect medical and ethical
failure.
Dr. House violated this duty on two instances, first, the surgical mistake in the First
Operation wherein, Dr. House inadvertently caused a rupture of a nerve near the occipital
bone leading to a life-threatening blood clot. Such an error showed lack of reasonable care
expected of a specialist in neurosurgery. Secondly, Failure to Obtain Informed Consent for
the Second Surgery: Dr. House performed the second surgery without informing Drako's
parents or obtaining consent from them, when he had 40 minutes of free time to
communicate. Failure to communicate fell directly against not only the legal obligation but
also the ethical requirement.
The principle of duty of care has been traced back to Jacob Mathew v. State of Punjab in
20055, which mandates doctors to act at the standard of a reasonable person of their
standing. In this case, this refers to the failure of proper communication of risks and
obtaining consent, which is a breach of accepted standards of care.
2.2 Violation of Legal Requirement of Informed Consent.

It is submitted that informed consent is the bedrock of medical law, ensuring patients and
their guardians know and agree on the dangers involved with the given medical procedures.
The Sokovian judicial system, strictly requires doctors to obtain consent for all important
surgeries6. Medical negligence is a serious concern when Dr. House does not obtain it from

4
Moot preposition¶8,9
5
[Link]
6
[Link]
[Link]

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Drako before performing the second surgery on the latter.

2.2.1 Dr. House’s Breach of the Legal and Ethical Duty to Obtain Consent-

Under Sokovian law, informed consent is a legal requirement placed on medical

professionals to protect the rights of patients and their guardians. Dr. House evaded this
important step where he decided to undertake a second surgery on Drako without informing
his parents, thus violating two dimensions for the practice: legal and ethical standards.
2.2.2 Emergency Circumstances Do Not Justify Skipping Consent - Although emergencies
may, under very rare circumstances, allow a physician to perform without consent, this
situation is far from such an emergency. Dr. House had enough time - almost forty minutes
- to discuss with Drako's parents that a more major surgery was required. 7 His lack of
communicating within this time frame makes the second surgery illegal and without
justification.
Even though the defense was that the situation was more urgent, the fact that the patient's
consent was not obtained cannot be voided for such a reason. Evidently, Dr. House had
forty minutes after the first surgery in which to deliberate and in which the parents could
have been contacted. Case law, Samira Kohli v. Dr. Prabha Manchanda (2008) 8, states
that even in emergencies, a person is bound to try to convey some form of information to
the patient's family. The evident breach of duty is the failure of Dr. House to make any
effort towards communicating the situation.

2.3 CAUSATION: ESTABLISHING A CONNECTION BETWEEN NEGLIGENCE

AND DEATH

In order to prove negligence, it must be demonstrated that Dr. House’s actions directly
contributed to Drako’s death. The sequence of medical errors—starting with the nerve
rupture during the first surgery and the lack of consent for the second—form a direct line to
the tragic outcome. The link between these breaches and Drako’s worsening condition
establishes causation, a critical element in proving liability.

2.3.1 Demonstrating How Dr. House’s Negligence Led to Fatal Complications-

7
Moot preposition¶9
8
[Link]

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The mistake of Dr. House in his first surgery was a blood clot that became a fatal
complication for Drako. Ignoring such a mistake and conducting another surgery without
Dr. House's authorization made things worse, thereby causing the further deterioration of
Drako that eventually led to his death. These mistakes hence show a transparent cause and
effect relationship between the death-tragic event and the negligence of Dr. House.
Proof of medical negligence must demonstrate that Dr. House's breach of duty brought
about the death of Drako. The timeline of the situation clearly depicts a causal
connection:Surgical Complication: Activation of the blood clot through tearing of the nerve
during the first surgery was addressed through the second unauthorized surgery,Post-
operative Complications: After the intervention of the second surgery, the situation became
worse, and he died. Considering the blood clot, it was clear that if Dr. House had taken
proper care of himself during the first surgery, all this may have been avoided.
2.3.2 Invoking Res Ipsa Loquitur -

The doctrine of res ipsa loquitur (the thing speaks for itself) applies here 9. Drako’s death,
following a second unauthorized surgery, is an outcome that would not have occurred in the
ordinary course of events had reasonable care been exercised. The principle, laid out in V.
Kishan Rao v. Nikhil Super Specialty Hospital (2010)10, places the burden on the respondent
to prove that Drako’s death was not due to negligence, a burden which they have failed to
meet.

2.4. Deviation from Accepted Medical Standards: Dr. House’s Actions in Context

Medical professionals must perform within the boundaries of accepted medical standards set
by their field. Dr. House’s decision to perform a second surgery without consulting the
patient’s guardians falls well outside the established norms of neurosurgical practice. His
conduct reflects a significant deviation from the standards expected in such high-stakes
medical situations.

2.4.1 How Dr. House’s Conduct Fails to Satisfy the Bolam Test -

9
Byrne v. Boadle, (1863) 159 Eng. Rep. 299, 2 H. & C. 722.

10
[Link]

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Under the Bolam Test, medical professionals are not held liable if they act according to a
responsible body of medical opinion. However, for Dr. House not to observe a patient's
consent before undergoing a second surgery has no defense for this test, as it fails to
approximate the reasonable actions of other neurosurgeons in the same situation. It flies in
the face of trust and communication-the very underpinnings of patient care.
The defenses of the Bolam Test can shield the doctor from liability if his actions fall into
what a responsible body of medical professionals generally would have recommended. But
here, as indicated by this, the actions of Dr. House are far beyond reasonable medical
practice, and so does the defense fail in this case. The decision to hold the second surgery
without further consultation with the family cannot be brought forward by the wider view
of the practice in neurosurgery; indeed, consent and clear communication are fundamental
issues in neurosurgery.
Examples of Medical Guidelines: The World Health Organization and national medical
councils all strictly state that informed consent is crucial, even in emergency situations.
Such guidelines are reflective of the world's concurrence in the respects of the rights of
patients and the need for family involvement in medical decision-making.
2.4.2 Comparing Dr. House’s Actions to Global Medical Guidelines on Consent-

Global medical guidelines are on record requiring that a patient receive informed consent
before any form of high-risk surgery, including neurosurgery. A comparison of this with the
standard protocol applied in neurosurgery, it can be observed how the negligence was
committed by Dr. House. According to standard practice, family members must be
informed of the post-surgical progress, especially if a patient will require another surgical
intervention. Failure to adhere to this standard was tantamount to deviating from what was
rational to expect in terms of conduct by professionals among equals.

ISSUE 3 WHETHER ST VINCENT HOSPITAL CAN BE HELD VICARIOUSLY LIABLE FOR THE ACTIONS
OF ITS STAFF?
1. The petitioner humbly submits before this hom’ble Supreme Court that the St Vincent Hospital
can be held vicariously liable for the actions of its staff under section 34, of Indian Penal Code, 1860,
Article 300 of Indian Constitution. The requirements as per section There must be a clear employer-

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employee relationship between the hospital and the medical professional involved. The negligent
act must occur during the employee's work hours while performing job-related tasks that benefit the
hospital. The hospital must have had control over how the employee performed their duties.
Additionally, the employee must have acted negligently, failing to meet the expected standard of
care, which directly caused harm to the patient. Lastly, there must be a direct link between the
negligence of performing an extra surgery without consent and the patient's injury. 2. In the case
Indian Medical Association v. V.P. Shantha (1995) the significant for establishing vicarious liability in
the medical context. The Supreme Court ruled that hospitals can be held vicariously liable for the
negligent acts of their employees, including doctors, under the doctrine of respondeat superior. This
means that if a medical professional commits negligence while performing their duties, the hospital
shares responsibility. The court emphasized that negligence occurring during employment tasks that
benefit the hospital makes the institution liable. Additionally, hospitals have a duty to ensure
competent care through adequate training and supervision of staff. The ruling highlighted that
patients trust healthcare institutions rather than individual practitioners, reinforcing the need for
institutional accountability. This case set a legal precedent affirming that hospitals cannot avoid
responsibility by claiming a lack of control over independent contractors or employees providing
services within their facilities. [1.1] Whether the respondent will be liable for Patient Consent
Section 15 of the Indian Medical Council Act, 1956? 3. The counsel submits before the Court that the
respondent is liable for Patient Consent Section 15 of the Indian Medical Council Act, 1956, As it
emphasizes the requirement for obtaining informed consent from patients before performing
medical procedures. This statutory provision underscores that patients must be fully informed about
the procedures being undertaken and provide consent. The performance of an extra surgery without
obtaining proper consent could constitute a violation of this legal requirement, implicating both the
surgeon and the hospital in potential liability. 4. In this case of Poonam Verma v. Ashwin Patel (1996)
4 SCC 33, Poonam Verma, the complainant, underwent a medical procedure conducted by Dr.
Ashwin Patel. She experienced complications and subsequently alleged that the doctor had been
negligent in his treatment, which led to her suffering. The central issues in the case included
whether the doctor’s actions constituted negligence and whether the hospital, where the doctor
practiced, could be held liable for the doctor’s negligence.
[1.2] Whether the Patient Autonomy (Consumer Protection Act, 2019, Section 2(1)(r)) will be
applicable in this case to held the respondent liable? 5. The counsel for appellant humbly before the
Hon’ble Court that the Section 2(1)(r) of the Consumer Protection Act, 2019, Is applicable in this case
as it includes the right of patients to make informed decisions regarding their treatment, highlighting
the importance of respecting patient autonomy. An unconsented additional surgery directly

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contravenes this right, raising questions about the ethical and legal ramifications for both the
surgeon and the hospital, particularly in terms of potential negligence. 6. In the case of Aruna
Shanbaug v. Union of India (2011) 4 SCC 454, the Supreme Court addressed crucial issues
surrounding patient autonomy and the ethical and legal aspects of euthanasia. While the case did
not directly focus on vicarious liability, it highlighted the broader responsibilities of healthcare
institutions and the duty of care owed to patients. The principles of vicarious liability are implicitly
relevant, as they underscore the institutional obligation to provide appropriate care and manage the
consequences of negligence. The case also reinforced the importance of patient autonomy in
medical decision-making, particularly in sensitive contexts like euthanasia [1.3] Whether Respondent
will be liable for Employment Authority (Indian Contract Act, 1872, Section 18) 7. The counsel
humbly submits that under the section 18 of the Indian Contract Act, 1872, the respondent will be
liable as section 18 delineates the scope of authority of employees, including medical practitioners.
If a surgeon performs an additional surgery without authorization, it is necessary to determine
whether this action was within the scope of their employment. This section helps in assessing
whether the surgeon’s actions were beyond their authorized duties and how this affects the
hospital’s vicarious liability. 8. In this case of The Management of Express Newspapers Ltd. v. The
Workmen (1963) 2 LLJ 113 SC, The Supreme Court clarified the scope of employment and the
authority of employees within their employment. While not directly medical, the principles are
applicable to defining employment authority. While The Management of Express Newspapers Ltd. v.
The Workmen does not specifically address medical malpractice, its implications on employer
liability are significant in understanding how hospitals can be held vicariously liable for the negligent
acts of their employees. This ensures that patients have recourse against healthcare facilities when
they suffer harm due to inadequate care provided by medical professionals within those facilities.
[1.4] Whether the respondent fall under Hospital Policies and Protocols (Hospitals and Nursing
Homes Registration Act, 1953, Section 4) 9. The counsel for petitioner humbly before the Hon’ble
Court that the Section 4 of the Hospitals and Nursing Homes Registration Act, 1953, The Hospitals
and Nursing Homes Registration Act, 1953, plays a critical role in establishing a legal framework that
supports vicarious liability in medical malpractice cases. By mandating compliance with health
standards and proper operational protocols, it ensures that hospitals are held accountable for the
actions of their employees. This accountability is essential for protecting patient rights and
maintaining trust in healthcare systems. 10. In the case of Smt. Seema v. Shri Prakash Chand (2006) 6
SCC 175 the Supreme Court uelcidates important aspects of negligence and liability that are directly
applicable to medical contexts through the lens of vicarious liability. By establishing that employers
can be held accountable for their employees' negligent actions, it underscores the responsibility that

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hospitals and healthcare institutions have in ensuring competent care is provided by their staff. This
reinforces patient rights and accountability within the healthcare system. [1.5] Whether the
respondent will be liable for Institutional Oversight (Clinical Establishments Act, 2010 - Section 18)
11. The counsel humbly submits that here there will be the liability for the Clinical Establishments
Act, 2010, particularly Section 18, focuses on the regulation and oversight of clinical establishments
in India, ensuring that they maintain certain standards of care. This legislative framework is crucial in
establishing accountability within healthcare facilities, which directly relates to the concept of
vicarious liability in the medical context and plays a critical role in establishing a legal framework that
supports vicarious liability in medical malpractice cases. By mandating compliance with health
standards and proper operational protocols, it ensures that clinical establishments are held
accountable for the actions of their employees. This accountability is essential for protecting patient
rights and maintaining trust in healthcare systems. 12. This case Dr. Balram Prasad v. State of Bihar
(2021) 6 SCC 568 serves as a crucial reference point in understanding vicarious liability within the
medical context. It underscores the responsibility that hospitals have not only to their patients but
also in ensuring that their employees provide competent care. By holding institutions accountable
for their employees' actions, this case reinforces the importance of maintaining high standards in
healthcare delivery and protecting patient rights. 13. The counsel for appellant humbly before the
Hon’ble Court that based on the above Issue and Sub Issues not only the Surgeon but also the St
vincent hospital can be held liable for Vicarious liability.

PRAYER
ZL

MEMORANDUM ON BEHALF OF THE PETITIONER