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COMMONWEALTH LEGAL EDUCATION ASSOCIATION MOOT 2014-2015

MEMORIAL FOR THE DEFENDANTS

IN THE DISTRICT COURT OF KOLKATA


AT KOLKATA.

Civil complaint no. ____/2014


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

Claimant
v.

Mr Sachin Panwar
And Mr Debjyoti Sarkar

Respondents

Written Submission on behalf of the Defendant,


C 14-28,
Counsel for the Defendant.

INDEX OF AUTHORITIES ................................................................................................................................ 4


STATEMENT OF JURISDICTION ...................................................................................................................... 8
STATEMENT OF FACTS .................................................................................................................................. 9
ISSUES RAISED ........................................................................................................................................ 13
SUMMARY OF ARGUMENTS ................................................................................................................ 14
ARGUMENTS ADVANCED .................................................................................................................... 18
1.

THE ANTI-SUIT INJUNCTION SHOULD BE GRANTED AGAINST SUING RESPONDENTS IN THE UK COURT.
18
[A]. The Kolkata district court has jurisdiction over the present dispute. .............................................. 18
[A.1]. Patient undertaking cum guideline document conferred jurisdiction upon Kolkatacourts. ...... 18
[A.2]. Arguendo, even if the jurisdiction clause is non existent, the Kolkata District Court is still
competent to decide the matter. .......................................................................................................... 19
[A.3]. In any case, submitted to the jurisdiction of the Kolkata District Court. ................................. 20
[B]. India is the More Appropriate Forum for the Resolution of this Dispute. ....................................... 20
[C]. Courts of England are Forum Non Conveniens as proceedings in England Would Be Oppressive
and Vexatious.......................................................................................................................................... 20
[C.1]. Proceedings in England would violate the principle of res judicata. ....................................... 21
[C.2]. Exorbitant Cost of litigation for defendants. ............................................................................ 21
[D].Mr Tony will not suffer any injustice. .............................................................................................. 21

I.

WHETHER DEFENDANTS ARE LIABLE FOR MEDICAL NEGLIGENCE? ................................................... 22


MR. SACHIN PAWAR. .............................................................................................................................. 22
[A].MrSachin Pawar has not committed a breach of duty of care. ..................................................... 22
[B].In any case, the administration of Depomedrol cannot be held to be excessive........................... 24
[C].THE INFORMED CONSENT OF THE PATIENT HAS BEEN OBTAINED IN THIS CASE............................ 25
DEBJYOTI SARKAR. ................................................................................................................................. 27
[A]. Mr. Debjyoti Sarkar being a dermatologist was not negligent in treating the patient. ................ 27

1.

IN ANY CASE, THE DAMAGES IN THIS CASE ARE NOT PROXIMATELY CONNECTED TO THE BREACH OF
THE DUTY OF CARE. ..................................................................................................................................... 30
[A]. The but for test has not been satisfied in this case. ...................................................................... 30
[B].The test of loss of chance is not satisfied. ........................................................................................ 31
2

[B.1]. The burden of proof is on the claimants to satisfy that the risk was a substantial one. ............ 32
[B.2].The loss of chance does not mean the damages can be covered for the loss of cure ................. 32
II.

WHETHER THE CLAIMANTS SHOULD BE AWARDED DAMAGES FOR MEDICAL NEGLIGENCE OF


DEFENDANTS? ............................................................................................................................................. 33
2.

THE MULTIPLIER METHOD IS THE MOST APPROPRIATE METHOD HERE FOR CALCULATING
COMPENSATION. ...................................................................................................................................... 34
PRAYER ....................................................................................................................................................... 35

INDEX OF AUTHORITIES
Cases
A.S.V. Narayanan Rao v. Ratnamala and Another, (2013) 10 S.C.C. 741 (India) ....................... 28
A.S.V. Narayanan Rao v. Ratnamala and Anr., 2013 (11)SCALE 390 ....................................... 28
Badri Parsad Rai v. Dr. M.L. Peshin, (2003) (3) C.P.R. 119 (Uttaranchal S.C.D.R.C.) .............. 30
Balaji Coke Industry Private Limited v. M.A.A. Bhagwati Coke Gujarat Private Limited, (2009)
9 S.C.C. 403 (India) .................................................................................................................. 18
Barnett v. Chelsea & Kensington Hospital Management Committee, [1968] 1 All ER 1068
(H.L.). ........................................................................................................................................ 30
Bolitho v. City and Hackney Health Authority, [1997] 4 All ER 771 (H.L.)............................... 28
Chester v Afshar, [2004] UKHL 41, [2005] 1 A.C. 134 .............................................................. 26
Chester v Afshar, [2004] UKHL 41, [2005] 1 A.C. 134. ....................................................... 25, 26
Cholamandalam Investments & Finance Co. Pvt. Ltd. v. Radhika Synthetics and Another, AIR
1996 S.C. 1098 (India) .............................................................................................................. 18
Clark v. McLennan, [1983] 1 All ER 416 (H.L.). ........................................................................ 29
Davies v. Taylor, [1974] AC 207 (H.L.)....................................................................................... 34
Dr. PB Desai v. State of Maharashtra, 2013 (11) S.C.A.L.E. 429 ................................................ 28
Dr. PB Desai v. State of Maharashtra, 2013 (11) SCALE 429 ..................................................... 28
Falcon v. Memorial Hospital, 436 Mich. 443 (1990). .................................................................. 32
General Manager, Kerala S.R.T.C v. Susamma Thomas, (1994) 2 SCC 176 (India) .................. 33
Greggs v. Scott, [2005] 2 W.L.R. 268 (H.L.). .............................................................................. 32
Hamil v. Bashline, 737 A.2d 263 (Pa. Super. Ct. 1999) ............................................................... 30
Highland Crusader v. Deutsche Bank, [2009] EWCA Civ 725.................................................... 21
Hodges v. Harland & Wolff Limited, [1965] 1 All ER 1086. ...................................................... 33
Hulse v. Wilson, [1953] 2 B.M.J. 890 .......................................................................................... 30
Indian Oil Corporation Limited v. M/s. Pragat Gas Service and Another, (1993) (1) G.L.H. 1004
(Gujarat H.C.) ............................................................................................................................ 18

Jai Prakash Saini v. Director Rajiv Gandhi Cancer Institute and Research Centre, 2003 (2) C.P.R.
202 (Del. S.C.D.R.C.). .............................................................................................................. 30
Janardan v. East Berkshire Health Authority, [1990] 2 Med L R 1 (H.L.)................................... 34
Jugbir Sigh v. Dr. Manoj Sharma and Another, (2003) (2) C.P.J. 467 (Del. S.C.D.R.C.) ........... 30
Kusum Sharma v. Batra Hospital, (2010) 3 S.C.C. 480 (India). .................................................. 27
LalitaKumari v. Government of Uttar Pradesh, 2013 (13) S.C.A.L.E. 559 ................................. 28
Laminart Private Limited and Another v. A.P. Agencies, Salem, A.I.R. 1989 S.C. 1239 (India) 18
Lim PohChoo v. Camden and Islington Area Health Authority,[1980] A.C. 174 (H.L.). ........... 34
M/s. Angile Insulations v. M/s. Davy Ashmore India Ltd., AIR 1995 S.C. 1766 (India) ............ 18
Macey v. Warwickshire H.A., [2004] EWHC 1198 (Q.B.), [2004] All ER (D) 386 (May) ........ 29
Mallet v. McMonagle, [1970] AC 166 (H.L.). ............................................................................. 34
Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995) .................................................................... 32
McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.). ................................................ 30
Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, (1968) EWCA Civ 5, [1969] 1 Q.B. 577. 28
Minor Marghesh K. Parikh v. Dr.Mayur H. Mehta, (2011) 1 S.C.C. 31 (India) .......................... 28
Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 S.C.C. 341 (India). .............. 17
Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 SCC 341. ........... 17, 18, 19, 20
Munib Masri v. Consolidated Contractors International Company SAL, [2008] EWCA Civ 625.
................................................................................................................................................... 20
Nagappa v. Gurudayal Singh and others, (2003) 2 S.C.C. 274 (India) ........................................ 34
New India Assurance Company Limited v. SadanandMukhi and Others, (2009) 2 S.C.C. 417
(India). ....................................................................................................................................... 34
Ningamma and Another v. United India Insurance Company Ltd., (2009) 13 S.C.C. 710 (India).
................................................................................................................................................... 34
Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Others, (2009) 6 S.C.C. 1
(India). ....................................................................................................................................... 27
Pantaloon Retail (India) Ltd. v. Amer Sports Malaysia Sdn Bhd, MANU/DE/1996/2012. ......... 19
Perez v. Las Vegas Medical Center, 805 P.2d 589 n. 5 (1991) .................................................... 32
Piramal Healthcare Ltd. v. DiaSorin SpA, 172 (2010) DLT 131. ................................................ 19
Precourt v. Frederick, 481 N.E.2d 1144 (1985). ........................................................................... 25
Raj Rani and Others v. Oriental Insurance Co. Ltd. and Others, (2009) 13 S.C.C. 654 (India)... 34
5

Scafidi v. Seiler, 119 N.J. 93 (1990). ............................................................................................ 31


Shri Karamjit Jaiswal v. Investec Trust (Jersey) Ltd., 180 (2011) DLT 15. ................................ 21
Simms v. Simms and Another, 175 U.S. 162 (1899). ................................................................... 28
Thomas v. Brighton Health Authority, [1997] 1 All ER 652 (H.L.). ........................................... 34
U.P. State Road Transport Corporation and Others v. Trilok Chandra and Others, (1996) 4
S.C.C. 362 (India) ..................................................................................................................... 34
Union of India v. Videocon Industries, AIR 2011 SC 2040; ........................................................ 20
Vance v. Taylor,[2007] EWHC 1602 (Q.B.), [2007] All ER (D) 95 (Jul) ................................... 30
Whiteford v. Hunter, [1950] W.N. 553 (H.L.) .............................................................................. 30
Whitehouse v. Jordan, [1981] 1 All ER 267 (H.L.). ..................................................................... 27
(1) Malay Kumar Ganguly; (2) Dr.KunalSaha v Dr.Sukumar Mukherjee and Others, (2009) 9
S.C.C. 221 (India), ............................................................................................................ 23, 24, 28
V. Kishan Rao v. Nikhil Super Speciality Hospital and another, (2010) 5 S.C.C. 513 (India), ... 24
A.B.C. LaminartPvt. Ltd. v. A.P. Agencies, Salem, (1989) 2 S.C.C. 163 (India). ....................... 18
Airedale N.H.S. Trust v. Bland, [1993] A.C. 789 (H.L.).............................................................. 25
Battersby v Tottman, [1985] 37 SASR 189 (Austl.) ..................................................................... 24
Bolam v. Friern Hospital Management Committee, [1957] 2 All ER 118 (Q.B.D.). ............. 22, 27
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) ................................................................. 25
Clark v. McLennan, [1983] 1 All ER 416. ................................................................................... 22
Dr. Balram Prasad and Others v. Dr. KunalSaha and Another, (2014) 1 S.C.C. 384 (India). ..... 23
Dr. Suresh Gupta v. Govt. Of N.C.T. of Delhi and Another, (2004) 6 S.C.C. 422 (India). ......... 22
Hague Convention on Choice of Court, art. 5, Nov. 25, 1965, 4 I.L.M. 348, Receneil de
Conventions Hague [RCH] 96. ................................................................................................. 18
Highland Crusader v. Deutsche Bank, [2009] EWCA Civ 725, [2010] 1 W.L.R. 1023. ............. 21
Hunter v. Hanley, [1955] S.L.T. 1 Div. 213 (U.K.) ...................................................................... 22
Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1 (India) ........................................................ 24
MacShannon v. Rockware Glass Ltd. [1978] A.C.C 795 (H.L.). ................................................. 20
Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 S.C.C. 1 (India) .............................................. 22, 24
Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 S.C.C. 1 (India). ............................................. 22, 24
Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (H.L.). ................. 23
6

MunibMasri v. Consolidated Contractors International Company SAL, [2008] EWCA Civ 625,
[2009] Q.B. 503......................................................................................................................... 20
MunibMasri v. Consolidated Contractors International Company SAL, [2008] EWCA Civ. 625,
[2009] Q.B. 503......................................................................................................................... 20
Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Others, (2009) 6 S.C.C. 1
(India) ........................................................................................................................................ 23
Oriental Insurance Company Ltd. v. Jashuben and Others, (2008) 4 S.C.C. 162 (India). ............ 22
Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. or Wagon Mound (No. 2), [1967] 1
A.C. 617 (P.C.). ......................................................................................................................... 21
Pantaloon Retail (India) Ltd. v. Amer Sports Malaysia SdnBhd, (2012) (50) PTC 583 (Delhi
H.C.). ......................................................................................................................................... 19
Pearce v. United Bristol hospitals NHS trust, [1999] E.C.C. 167 (C.A. (Civ. Div.)). .................. 25
Piramal Healthcare Ltd. v. Diasorin S.P.A., (2010) (172) DLT 131 (Delhi H.C.). ...................... 19
Roe and Wolley v ministry of health, [1954] 2 All ER 131 ......................................................... 23
Rogers v. Whitaker, [1992] 175 CLR 479 (Austl.)....................................................................... 25
Rogers v. Whitaker, [1992] 175 CLR 479 (Austl.)....................................................................... 25
Shri Karamjit Jaiswal v. Investec Trust (Jersey) Ltd., (2011) 180 DLT 15 (Delhi H.C.). ........... 21
Sidaway v. Board of Governors of the Bethlem Royal Hospital, [1985] A.C. 871 (H.L.) ........... 22
Sidaway v. Board of Governors of the Bethlem Royal Hospital, [1985] A.C. 871 (H.L.). .......... 25
Union of India v. Videocon Industries, 2011 A.I.R. 2040 (S.C). (India) ..................................... 20
Union of India v. Videocon Industries, 2011 A.I.R. 2040 (S.C.) (India). .................................... 20
United India Insurance Company Limited and Others v. Patricia Jean Mahajan and Others,
(2002) 6 S.C.C. 281 (India) ....................................................................................................... 22
V. Kishan Rao v. Nikhil Super Speciality Hospital and another, (2010) 5 S.C.C. 513 (India) ... 22,
24
Vernon v. Bloomsbury Health Authority, [1995] 6 Med. L.R. 297. ............................................ 23
Whitehouse v. Jordan, [1981] 1 All ER 267 (H.L.) ................................................................ 24, 28
Wilsher v. Essex Area Health Authority, [1988] A.C. 1074 (H.L.). ...................................... 22, 30
Articles

D. Gerecke, Risk Exposure as Injury: Alleviating the Injustice of Tort Causation Rules, 35
MCGILL LAW JOURNAL 797, 801 (1990) ................................................................................... 26
David A. Fischer, Proportional Liability: Statistical Evidence and the Probability Paradox,
46(21) VANDERBILT LAW REVIEW 1201, 1210 (1993).............................................................. 30
L. Khoury, Chester v Afshar: Stepping Further Away from Causation?, SINGAPORE JOURNAL OF
LEGAL STUDIES 246 (2005) ....................................................................................................... 26
Lara Khoury, Causation and risk in the highest courts of Canada, England and France, LAW
QUARTERLY REVIEW 108 (2008) ................................................................................................ 26
Michael Justin Myers, Informed Consent in Medical Malpractice, 55 CALIFORNIA LAW REVIEW
1396 (1967) ............................................................................................................................... 25
Pereira, Frederick A., Adarsh Vijay Mudgil, & David M. Rosmarin, Toxic epidermal necrolysis,
56(2) JOURNAL OF THE AMERICAN ACADEMY OF DERMATOLOGY 181-200 (2007). ................. 27
Rachael Mulheron, Trumping Bolam: A critical legal analysis of Bolithos Gloss, 69(3) THE
CAMBRIDGE LAW JOURNAL 609-38 (2010). .............................................................................. 29
Robert S. Bruer, Loss of a Chance as a Cause of Action in Medical Malpractice Cases, 59
MISSOURI LAW REVIEW 969 (1994). ......................................................................................... 31
S Devaney, Autonomy Rules OK, 13 MEDICAL LAW REVIEW 102 (2005). .................................. 26

Statement of Jurisdiction
___________________________________________________________________
Civil Complaint no. ____/2014
____________________________________________________________________
1. The claimant has approached this Honble Court under S. 9 of the Code of Civil
Procedure, 1908.

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

10

11

12

ISSUES RAISED

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

II. WHETHER DEFENDANTS ARE LIABLE FOR MEDICAL NEGLIGENCE?

III. WHETHER

THE

CLAIMANTS

SHOULD

NEGLIGENCE OF DEFENDANTS?

13

BE

AWARDED

DAMAGES

FOR

MEDICAL

Summary of Arguments

1. THE ANTI- SUIT INJUNCTION SHOULD BE GRANTED AGAINST THE CLAIMANTS.


The anti-suit injunction should be granted against the claimant from proceeding in Birmingham
court of UK as the District court of Kolkata has jurisdiction over present dispute by virtue of
claimants entering into a standard contract with the defendants by signing a standard patient
undertaking cum guideline document, cause of action arising in Kolkata and submitting to the
jurisdiction of the court. Further, India is a more appropriate forum for adjudication of this
matter while UK court is Forum Non Conveniens as the proceedings will be oppressive and
vexatious due to it being res judicata and leading to exorbitant cost for defendants. Lastly, Mr
Tony will not suffer any injustice as there is nothing he can gain in England over and above the
proceedings in India.

2. MR. SACHIN PAWAR AND MR DEBJYOTI SARKAR HAVE NOT COMMITTED A BREACH
OF DUTY OF CARE.

The medicine which was administered and its prescription was adequate according the standard
of care as laid down in Bolam. It is also submitted that a mere deviation from conventional
approach is not enough to hold a medical professional liable for medical negligence. The
informed consent of the patient by disclosing all relevant information which a reasonable patient
needs to enquire, thereby transferring all risks to the patient.

14

Mr Debjyoti Sarkar cannot be made liable for negligence for not adopting a particular practice
whereas there are practioners who have acquainted themselves of steroid approach. Therefore
according to Bolam standard, reasonable amount of care has been taken.
3. IN

ANY CASE, THE DAMAGES ARE NOT PROXIMATELY CONNECTED TO THE BREACH

OF THE DUTY OF CARE

There are two tests which have to be considered i.e. but for and loss of chance. It is
submitted here that both the tests are not satisfied here. There has to be a fault before satisfying
the but for test. Misdiagnosis and clinical Judgement both are not treated as fault in common
law as well as Indian jurisprudence. Hence the but for test is not satisfied in this case.
Even the loss of chance is not satisfied here. First, the burden of proof lies on the claimants to
satisfy that there was a risk and it was substantial one. Second, it is to be noted the chances of
curing from Toxic Epidermal Necrolysis are less than 20%. Therefore the causation chain is not
complete because loss of chance does not mean loss of cure.
4. THE DAMAGES SHOULD BE AWARDED USING THE MULTIPLIER METHOD.
Assuming but not conceding that the doctors were negligent, the damages should be granted by
only using the multiplier method. Considering the facts of circumstances of this case, a
reasonable and just compensation should be granted. It has been held that the multiplier method
is the most appropriate method for calculating just and reasonable compensation.

15

16

17

ARGUMENTS ADVANCED

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

1. THE ANTI-SUIT INJUNCTION SHOULD BE GRANTED AGAINST SUING RESPONDENTS IN


THE UK COURT.
Mr. Tony intends to initiate proceeding in UK courts as well.1 It is submitted that an anti suit
injunction must be granted against the claimants as first, Kolkata District Court has jurisdiction
over the present dispute. [A] Secondly, India is more appropriate forum for resolution of this
dispute. [B] Thirdly, proceedings in England would be oppressive and vexatious, [C] and lastly,
No injustice would be caused to defendants by proceedings in India.
[A]. The Kolkata district court has jurisdiction over the present dispute.

1.

Principles of contract law prohibit contracting parties from conferring jurisdiction upon a
court where none exists. However, it is a well-settled exception that parties may mutually
agree upon a forum, thereby creating jurisdiction in such a court.2 It is submitted that the
patient undertaking cum guideline document conferred jurisdiction upon Kolkata
courts.[A.1]Arguendo, even if the jurisdiction clause is non existent, the Kolkata District
Court is still competent to decide the matter [A.2]. In any case, Mr Tony submitted to the
jurisdiction of the Kolkata District Court [A.3].

[A.1]. Patient undertaking cum guideline document conferred jurisdiction upon


Kolkatacourts.

1
2

Paragraph 8, factsheet.
Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 S.C.C. 341 (India).

18

It is a well-settled principle that parties may mutually agree upon a forum, thereby creating
jurisdiction in such a court.3 The patient as well as Tony Stanley was made to sign
astandardPatient Undertaking cum Guideline Document which provided details of essential
procedures undertaken by Vasantech Hospitals.4 It is a standard form of contract and such
contracts always have a exclusive jurisdiction clause conferring jurisdiction on the local courts5
which in this case, it is argued, is the Honorable District Court of Kolkata. It is submitted that
this Patient Undertaking cum Guideline Document is binding on all doctors as well as staff at
Vasantech Hospitals along with the patient and complainant.6 Hence, anti suit injunction shall be
granted against Mr Tony to prevent Breach of contract.
[A.2]. Arguendo, even if the jurisdiction clause is non existent, the Kolkata District Court is
still competent to decide the matter.

2.

In the absence of a jurisdiction clause, the competence of the Kolkata District Court must be
determined as per ordinary rules of civil procedure. It is submitted that the Kolkata District
Court had jurisdiction over the instant matter because it was implied that Mr and Mrs
Stanley would avail treatment and make and receive payments at the Hospitals in Kolkata,
thereby forming part of the cause of action.7 Therefore, the Kolkata District Court had
jurisdiction under S. 20(c), CPC.

Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 S.C.C. 341 (India).
Paragraph 4, factsheet.
5
Hague Convention on Choice of Court, art. 4, Nov. 25, 1965, 4 I.L.M. 348, Receneil de Conventions Hague [RCH]
96.
6
Laminart Private Limited and Another v. A.P. Agencies, Salem, A.I.R. 1989 S.C. 1239 (India), Indian Oil
Corporation Limited v. M/s. Pragat Gas Service and Another, (1993) (1) G.L.H. 1004 (Gujarat H.C.),
Cholamandalam Investments & Finance Co. Pvt. Ltd. v. Radhika Synthetics and Another, AIR 1996 S.C. 1098
(India), M/s. Angile Insulations v. M/s. Davy Ashmore India Ltd., AIR 1995 S.C. 1766 (India), Balaji Coke
Industry Private Limited v. M.A.A. Bhagwati Coke Gujarat Private Limited, (2009) 9 S.C.C. 403 (India), Hague
Convention on Choice of Court, art. 5, Nov. 25, 1965, 4 I.L.M. 348, Receneil de Conventions Hague [RCH] 96.
7
A.B.C. LaminartPvt. Ltd. v. A.P. Agencies, Salem, (1989) 2 S.C.C. 163 (India).
4

19

[A.3]. In any case, submitted to the jurisdiction of the Kolkata District Court.

3.

In order to uphold the validity of an anti-suit injunction, the party being restrained must be
amenable to the courts jurisdiction.8 In the instant case, Mr. Tony submitted to the
jurisdiction of the Kolkata District Court by filing the claim against the defendants.9
Therefore, Kolkata District Court is competent to decide upon the dispute.

[B]. India is the More Appropriate Forum for the Resolution of this Dispute.

4.

The Supreme Court has opined that determination of the more appropriate forum for
adjudication of an anti-suit injunction warrants reference to multiple factors.10 In the instant
case; (1) the agreement is governed by the laws of India; (2) Hospitals are private entities
registered in India; and the defendants are Indian citizens11 (3) Further, England has no
connection to the cause of action. Therefore, India is a more appropriate forum than
England.

[C]. Courts of England are Forum Non Conveniens as proceedings in England Would Be
Oppressive and Vexatious.

5. Admittedly, an unforeseeable change in circumstances must be evidenced for obtaining an


anti-suit injunction against the contractual forum.12 Hence, courts will ordinarily give effect
to jurisdiction clauses unless such an act would be against domestic law 13 or public policy.14
It is submitted that foreign proceedings would amount to re-litigation and violate settled

CHESHIRE, NORTH & FAWCETT,PRIVATE INTERNATIONAL LAW 455-57 (14th ed. 2008).
Paragraph 8, factsheet.
10
23, Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 S.C.C. 341 (India).
11
factsheet.
12
Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 S.C.C. 341 (India).
13
Piramal Healthcare Ltd. v. Diasorin S.P.A., (2010) (172) DLT 131 (Delhi H.C.).
14
Pantaloon Retail (India) Ltd. v. Amer Sports Malaysia SdnBhd, (2012) (50) PTC 583 (Delhi H.C.).
9

20

principles of res judicata[C.1] and would lead to exorbitant cost of litigation to defendants.
[C.2]
[C.1]. Proceedings in England would violate the principle of res judicata.

6.

The principle of res judicata prohibits the same parties from re-litigating the same cause of
action before different forums. Further, its applicability is widely accepted even across
foreign courts.15 In the instant case, the court of first instance has already taken cognizance
and the matter is to be disposed off before this court. Consequently, any proceedings on the
same issues would amount to re-litigation and would violate res judicata.16A fortiori, such
re-litigation is sufficient grounds for an anti-suit injunction.17 Therefore, the anti-suit
injunction is valid.

[C.2]. Exorbitant Cost of litigation for defendants.

7. English Court has no connection with the cause of action and it is not a court of natural
jurisdiction. Therefore, it would lead to exorbitant litigation expenses in England, incurring
of heavy expenditure on taking the witnesses to the English Court and the hardship. It was
not agreed between the parties that the courts of England will have non-exclusive jurisdiction
and hence these could not have been foreseen.18 Therefore, it is submitted that the injunction
must be granted.19
[D].Mr Tony will not suffer any injustice.

15

Union of India v. Videocon Industries, 2011 A.I.R. 2040 (S.C). (India), MunibMasri v. Consolidated Contractors
International Company SAL, [2008] EWCA Civ. 625, [2009] Q.B. 503.
16
Union of India v. Videocon Industries, 2011 A.I.R. 2040 (S.C.) (India).
17
MunibMasri v. Consolidated Contractors International Company SAL, [2008] EWCA Civ 625, [2009] Q.B. 503.
18
Modi Entertainment Network v. WSG Cricket PTE Ltd., (2003) 4 S.C.C. 341 (India).
19
MacShannon v. Rockware Glass Ltd. [1978] A.C.C 795 (H.L.).

21

8. Potential injustice to the party being injuncted is an important consideration in granting antisuit injunctions.20 In the instant case, there is nothing which Mr Tony could gain in such
foreign proceedings over and above the current suit.21 Therefore, the anti-suit injunction is
valid.

I.

WHETHER DEFENDANTS ARE LIABLE FOR MEDICAL NEGLIGENCE?

There are three pre requisites to prove negligence, 1.) A Legal duty owed to exercise reasonable
care. 2.) Breach of the duty of care. 3.) Damage proximate to the breach. 22 It is implicit here that
there is a legal duty owed to exercise reasonable care, since she was admitted into hospital.23
It is submitted that MrSachin Pawar and Mr Debjyoti Sarkar are not liable for medical
negligence as. [1] They have not committed a breach of duty of care. [2] In any case, it is not
proximately connected to the damage suffered by the claimant.
[1] MRSACHIN PAWAR AND MR DEBJYOTI SARKAR HAVE NOT COMMITTED BREACH OF DUTY
OF CARE.

MR. SACHIN PAWAR.

[A].MrSachin Pawar has not committed a breach of duty of care.

1. It may be contended by claimant that since the administration of Depomedrol is excessive


in nature MrSachin Pawar breached the duty of care. Considering the nature of infection,
where the patient started to contract acute pain, fever and rashes all over the body.
20

Highland Crusader v. Deutsche Bank, [2009] EWCA Civ 725, [2010] 1 W.L.R. 1023.
Shri Karamjit Jaiswal v. Investec Trust (Jersey) Ltd., (2011) 180 DLT 15 (Delhi H.C.).
22
Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. or Wagon Mound (No. 2), [1967] 1 A.C. 617 (P.C.).
21

23

22

MrSachin Pawar prescription of Depomedrol is the most appropriate response one doctor
of the reasonable competent skill could have made.24

2. Regarding the contention of excessive dosage, it is submitted that the administration of


the dosage is a clinical judgement which is incumbent on the doctor.First, no straight
jacketed formula, can be applied to doctors especially to their professional practice. 25 In
Medical Science, the treatments are rather subjective than applicability of an objective
protocol to every case.26 Generally there is a tendency to blame the doctor in an event
where the mishap occurs due to radical approach subscribed by a doctor.27However, it
has to be noted that, its a clinical judgement dependent on factual matrix of each
case.28Second, such liabilities will deter the doctors from exercising their clinical
judgement appropriately in future.29 Third, most importantly, the medicine, is an inexact
science. The predictability of an outcome of any case is non-determinable. It depends on
the particular facts and circumstances of the case.30 Further, it has been held in
innumerable cases that a medical practitioner is not liable for negligence simply because

24

Is be used to treat various conditions such as blood disorders, severe allergic reactions, certain cancers, eye
conditions, skin/intestinal/kidney/lung diseases, and immune system disorders. It decreases your immune
system's response to these conditions and reduces symptoms such as swelling, pain, and allergic-type reactions.
25
Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 S.C.C. 1 (India), V. Kishan Rao v. Nikhil Super Speciality Hospital
and another, (2010) 5 S.C.C. 513 (India), United India Insurance Company Limited and Others v. Patricia Jean
Mahajan and Others, (2002) 6 S.C.C. 281 (India), Oriental Insurance Company Ltd. v. Jashuben and Others, (2008)
4 S.C.C. 162 (India).
26
Bolam v. Friern Hospital Management Committee, [1957] 2 All ER 118 (Q.B.D.).
27
Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 S.C.C. 1 (India).
28
Hunter v. Hanley, [1955] S.L.T. 1 Div. 213 (U.K.), Clark v. McLennan, [1983] 1 All ER 416.
29
Martin F. D'Souza v. Mohd. Ishfaq, (2009) 3 S.C.C. 1 (India), Dr. Suresh Gupta v. Govt. Of N.C.T. of Delhi and
Another, (2004) 6 S.C.C. 422 (India).
30
Sidaway v. Board of Governors of the Bethlem Royal Hospital, [1985] A.C. 871 (H.L.), Wilsher v. Essex Area
Health Authority, [1988] A.C. 1074 (H.L.).

23

things went wrong from mischance or misadventure or through an error of judgement in


choosing one treatment over another.31

3. Therefore MrSachin Pawar has exercised his clinical judgement peculiar to facts and
circumstances. The quantity of medicine administered by MrSachin Pawar was a
subjective decision dependent on the facts and circumstances. The merits of this decision
cannot be challenged on the basis of an unforeseen outcome. In the realm of diagnosis,
there is ample scope for genuine difference of opinion.32

4. Since MrSachin Pawar has acted as a reasonable man, for any unfavourable outcome he
cannot be made liable.

[B].In any case, the administration of Depomedrol cannot be held to be excessive.

5. In common law it is a well settled position that the dosage must be individualised
according to the severity of the disease and response to the patients.33 In Malay Kumar
Ganguly, which specifically mooted on the reasonable dosage of Depomedrol, it is
observed that there is no such express prohibition regarding the quantity of dosage.34
Even the precaution has listed specifically, that it is a risk/benefit decision which must be
made in each individual case as to dose and duration of treatment and as to whether daily

31

Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Others, (2009) 6 S.C.C. 1 (India), Roe and
Wolley v ministry of health, [1954] 2 All ER 131.
32
Maynard v. West Midlands Regional Health Authority, [1985] 1 All ER 635 (H.L.).
33
(1) Malay Kumar Ganguly; (2) Dr.KunalSaha v Dr.Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221 (India),
Vernon v. Bloomsbury Health Authority, [1995] 6 Med. L.R. 297.
34
(1) Malay Kumar Ganguly; (2) Dr. KunalSaha v Dr. Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221 (India),
Dr. Balram Prasad and Others v. Dr. KunalSaha and Another, (2014) 1 S.C.C. 384 (India).

24

or intermittent therapy should be used.35 Hence, the prescription forms a part of a clinical
judgement which is incumbent upon thedoctor.36

6.

In conclusion the standard of care itself is a clinical judgement which has to be a


subjective decision. Hence MrSachin Pawar is not medically negligent for not sticking to
the conventional approach.

[C].THE INFORMED CONSENT OF THE PATIENT HAS BEEN OBTAINED IN THIS CASE.

In this case Mrs Sharon Stanley has consented to a standard patient undertaking cum
guideline document which informed patient and their relatives of all clinical procedure
undertaken by the doctors. The document was illustrative enough to make a layman
understand the complex technical procedures undertaken by doctors in case of the
emergencies. Therefore, after obtaining an informed consent all risks associated with a
treatment ultimately rests with a concerned patient. It is submitted that the reasonable
amount of care has been taken because of two reasons. First, All necessary Information
regarding the procedures were disclosed. Second, all the material risks were disclosed to
the patient.
[C.1]. All necessary Information regarding the procedures have been disclosed.

35

(1) Malay Kumar Ganguly; (2) Dr.KunalSaha v Dr.Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221 (India),
Battersby v Tottman, [1985] 37 SASR 189 (Austl.); the facts related to the prescription of the medicine are akin
to facts of this case, in exercising such a judgement there is a scope of an error of judgement. Doctor cannot be
held be liable for the same.
36
Whitehouse v. Jordan, [1981] 1 All ER 267 (H.L.), Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1 (India), V.
Kishan Rao v. Nikhil Super Speciality Hospital and another, (2010) 5 S.C.C. 513 (India), Martin F. D'Souza v.
Mohd. Ishfaq, (2009) 3 S.C.C. 1 (India).

25

7. It is well settled position in common law where obtaining informed consent is construed
under the parameters of duty of care.37. The doctor necessarily has to acquaint the patient
with all the necessary information regarding the proposed treatment.38 However the same
disclosure is qualified by the subjective test i.e. only that information that a reasonable
person in the patients position would require.39Therefore in this case by disclosing all the
relevant procedures, techniques and risk, the doctors have not breached the duty of care.
[C.2]. All material risks were disclosed to the patient.

8. The law mandates that the patient must have been warned of any material risk inherent in
the proposed treatment.40 It might be contended that the informed consent was not
obtained since they did not disclose the risk of death of the patient. However, it is
submitted that there is an exception to said test i.e. doctor can choose to not disclose
because he himself was unaware of that risk.41

9. The disease which the patient found suffering was Vasculitis however originally it was
Toxic Epidermal Necrolysis. In the realm of diagnosis there is genuine scope of error, in
several cases, it is observed that misdiagnosis cannot make a doctor liable for
negligence.42 Since there was a genuine error, Toxic Epidermal Necrolysis was remote to
doctors. Hence the doctors by not disclosing the risks to the patient have not breached the
duty of care.

37

Lord diplock, Sidaway v. Board of Governors of the Bethlem Royal Hospital, [1985] A.C. 871 (H.L.).
Pearce v. United Bristol hospitals NHS trust, [1999] E.C.C. 167 (C.A. (Civ. Div.)).
39
Rogers v. Whitaker, [1992] 175 CLR 479 (Austl.), Airedale N.H.S. Trust v. Bland, [1993] A.C. 789 (H.L.).
40
Rogers v. Whitaker, [1992] 175 CLR 479 (Austl.).
41
Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972), Michael Justin Myers, Informed Consent in Medical
Malpractice, 55 CALIFORNIA LAW REVIEW 1396 (1967), Precourt v. Frederick, 481 N.E.2d 1144 (1985).
42
Chester v Afshar, [2004] UKHL 41, [2005] 1 A.C. 134.
38

26

10. The defendants might contend that Toxic Epidermal Necrolysis was a material risk in the
treatment, therefore the informed consent is vitiated. However it is submitted that the
materiality of the risk is proportionate to the likelihood of that injury. 43Since, it was
remote and unknown to the doctors, informed consent is not vitiated. As lord Hoffman
has that such a position amounts to a paradox where the patient is allowed to sue for a
remote risk.44

DEBJYOTI SARKAR.

It is submitted that Mr Debjyoti Sarkar is not liable as [A] he was not negligent in treating the
patient and in any case, [B] Damages are not proximately connected to the breach.
[A]. Mr. Debjyoti Sarkar being a dermatologist was not negligent in treating the patient.

The claimants have contended that Mr Debjyoti Sarkar is negligent since has failed to make
any change in the treatment regimen of the patient. The submission here is in two folds.
First, the treatment of the Mrs Sharon Stanley was according to the adequate standards.
Second, the treatment needs not be logical, it has to be standard acceptable by a doctor in that
field of practice.

43

Chester v Afshar, [2004] UKHL 41, [2005] 1 A.C. 134, Lara Khoury, Causation and risk in the highest courts of
Canada, England and France, LAW QUARTERLY REVIEW 108 (2008); L. Khoury, Chester v Afshar: Stepping
Further Away from Causation?, SINGAPORE JOURNAL OF LEGAL STUDIES 246 (2005); D. Gerecke, Risk Exposure
as Injury: Alleviating the Injustice of Tort Causation Rules, 35 MCGILL LAW JOURNAL 797, 801 (1990); S
Devaney, Autonomy Rules OK, 13 MEDICAL LAW REVIEW 102 (2005).
44
Chester v Afshar, [2004] UKHL 41, [2005] 1 A.C. 134.

27

[A.1]. The treatment of Mrs Sharon Stanley was according to the adequate standards.

11. According to the confirmed and well accepted test of Bolam, the doctor has to exercise
the ordinary skill of an ordinary competent man exercising that particular art.45 If the
view of that particular act in medical professional is endorsed by a respectable body of
opinion, the standard of care shall be deemed to be taken into account. 46 The law imposes
the duty of care but the standard of the care is a clinical judgement.47

12. Treatment of TEN is diverse and varied from different professionals.48 There are
professionals who have subscribed themselves to the steroid therapy.49 It is to be noted
that opting one body of professional over the other cannot be treated as negligent.50
Hence, in accordance with the Bolam standard, MrSachin Pawar cannot be held to be
negligent.

[A.2].The treatment needs not be logical, it has to be standard acceptable by a doctor in


that field of practice.

13. The court cannot hold the treatment as illogical by adopting the test for the standard of
care in Bolitho. Bolitho, enquires into the merits of the treatment and it is incumbent upon
the court to declare that if the practice is illogical, consequently the medical practitioner

45

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


Kusum Sharma v. Batra Hospital, (2010) 3 S.C.C. 480 (India).
47
Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and Others, (2009) 6 S.C.C. 1 (India).
48
(1) Malay Kumar Ganguly; (2) Dr.KunalSaha v Dr.Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221 (India).
49
Pereira, Frederick A., Adarsh Vijay Mudgil, & David M. Rosmarin, Toxic epidermal necrolysis, 56(2) JOURNAL OF
THE AMERICAN ACADEMY OF DERMATOLOGY 181-200 (2007).
50
Whitehouse v. Jordan, [1981] 1 All ER 267 (H.L.).
46

28

will be held liable for negligence.51 It is submitted the Bolitho standard has not yet been
accepted by the courts in India.52 The honourable Supreme Court in the judgment has
never stated that Bolitho will be an acceptable standard. Several judgements after the
landmark decision has opined otherwise using the Bolam standard.53 Under the Bolam
standard there is no breach of duty of care by Mr Debjyoti Sarkar.

14. In any case, even if the Bolitho is accepted, Mr Debjyoti is not negligent. Impugning an
accepted practice requires the court to enquire the merits of the decision using
Wednesbury unreasonableness/irrationality.54 The test is generally employed in the
judicial

review

proceedings

and

require

very

high

degree

of

unreasonableness/irrationality.55 The judges have to not only test the merits of the expert
medical procedure against other alternatives but also have to prove that the test is
perverse or irrational.56It is submitted that such a test is inappropriate because it is
impossible for a judge to establish if the practice is illogical and hence not reasonable.57
Simply a deviation from the orthodox treatment is certainly not a conclusion of holding
the treatment as illogical and medical practioners negligent.58

51

Bolitho v. City and Hackney Health Authority, [1997] 4 All ER 771 (H.L.).
(1) Malay Kumar Ganguly; (2) Dr.KunalSaha v Dr.Sukumar Mukherjee and Others, (2009) 9 S.C.C. 221 (India),
Dr.Balram Prasad and Others v. Dr.KunalSaha and Another, (2014) 1 S.C.C. 384 (India).
53
Minor Marghesh K. Parikh v. Dr.Mayur H. Mehta, (2011) 1 S.C.C. 31 (India), A.S.V. Narayanan Rao v.
Ratnamala and Another, (2013) 10 S.C.C. 741 (India), Dr. PB Desai v. State of Maharashtra, 2013 (11)
S.C.A.L.E. 429, LalitaKumari v. Government of Uttar Pradesh, 2013 (13) S.C.A.L.E. 559.
54
Dillon J, Whitehouse v. Jordan, [1981] 1 All ER 267 (H.L.), Simms v. Simms and Another, 175 U.S. 162 (1899).
55
Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon, (1968) EWCA Civ 5, [1969] 1 Q.B. 577.
56
Bolitho v. City and Hackney Health Authority, [1997] 4 All ER 771 (H.L.).
57
Macey v. Warwickshire H.A., [2004] EWHC 1198 (Q.B.), [2004] All ER (D) 386 (May), Rachael Mulheron,
Trumping Bolam: A critical legal analysis of Bolithos Gloss, 69(3) THE CAMBRIDGE LAW JOURNAL 609-38
(2010).
58
Clark v. McLennan, [1983] 1 All ER 416 (H.L.).
52

29

1. IN ANY CASE, THE DAMAGES IN THIS CASE ARE NOT PROXIMATELY CONNECTED TO THE
BREACH OF THE DUTY OF CARE.
There are two well settled test in common law i.e. but for and loss of chance, which have
been extensively used for establishing the causation. It is submitted here that none of the tests
have been satisfied here in the particular case.
[A]. The but for test has not been satisfied in this case.

1. It is submitted that the damage occurred to Mrs Sharon Stanley was remote. Assuming
but not conceding that the doctors were negligent, their fault would not have made any
difference. Further there are three arguments which will support the submission made
above. First, MrSachin Pawar prescription of medicine and misdiagnosis cannot be taken
as a fault in the medical profession. Second, administration of Depomedrol and
misdiagnosis has not contributed to the damages. In extreme circumstances where it
might be justified as only a material contribution, the chain of causation is incomplete.
Third, Mr Debjyoti Sarkar did not violate his duty of care, because treatment has met the
standards.

2. In the words of Lord Denning, the damage would not have happened but for a particular
fault then that fault is in fact the cause of that damage, but if you can say that the damage
would not have happened just the same fault or no fault then the fault is no cause of the
damage.59 In the common law as well in Indian jurisprudence, it has been held that
misdiagnosis cannot be treated as a fault.60 Further, the administration of the medicine
59

Barnett v. Chelsea & Kensington Hospital Management Committee, [1968] 1 All ER 1068 (H.L.).
Vance v. Taylor,[2007] EWHC 1602 (Q.B.), [2007] All ER (D) 95 (Jul), Hulse v. Wilson, [1953] 2 B.M.J. 890,
Whiteford v. Hunter, [1950] W.N. 553 (H.L.), Jugbir Sigh v. Dr. Manoj Sharma and Another, (2003) (2) C.P.J. 467
60

30

was rather a clinical judgement which cannot be taken as a fault. Therefore it fails to
satisfy the test of but for laid down by Denning.

3. Even if the misdiagnosis is treated as a fault, the defendants might contend that since it
squarely falls within the risk, it shall be taken as to cause the damage.61 In common law,
the lordships had to say that it is a sound principle that if by breach of duty the damage
which has occurred is within the square range of that risk, the burden of proof shifts on
the claimants where they will have to show that the risk did materialise and nothing was
done from the side of respondents.62 It is submitted that in such cases where there are
multiple causes for a particular act, it is impossible to establish the causal link therefore
in this case the damage is remote.63

[B].The test of loss of chance is not satisfied.

4. The respondents might contend that owing to the misdiagnosis and administration of the
excessive medicine there was a substantial risk. They also might contend that the death
resultant from the standards after the correct diagnosis was a loss of cure. Here the
submissions are in two folds. First, it is submitted that the burden of proof is on the
claimants to satisfy that the risk was a substantial one. Second,the loss of chance does
not mean the damages can be covered for the loss of cure.

(Del. S.C.D.R.C.), Badri Parsad Rai v. Dr. M.L. Peshin, (2003) (3) C.P.R. 119 (Uttaranchal S.C.D.R.C.), Jai Prakash
Saini v. Director Rajiv Gandhi Cancer Institute and Research Centre, 2003 (2) C.P.R. 202 (Del. S.C.D.R.C.).
61
McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.).
62
Wilsher v. Essex Area Health Authority, [1988] A.C. 1074 (H.L.).
63
Hamil v. Bashline, 737 A.2d 263 (Pa. Super. Ct. 1999), David A. Fischer, Proportional Liability: Statistical
Evidence and the Probability Paradox, 46(21) VANDERBILT LAW REVIEW 1201, 1210 (1993).

31

[B.1]. The burden of proof is on the claimants to satisfy that the risk was a substantial one.

5. The burden of proof is on the claimant to prove that the loss of chance was an increased
risk of harm. The claimant will have to further prove that increase in risk was a
substantial factor in producing the result.64 In other words, the claimant will have to show
that the omitted treatment was intended to prevent the very type of harm which resulted
that the plaintiff would have submitted to the treatment, and that it is more probable than
not the treatment could have lessened or avoided the plaintiff's injury had it been
rendered.65

[B.2].The loss of chance does not mean the damages can be covered for the loss of cure

6. It is submitted, there is no fault of the doctors, and even if there is any, there is no right to
recover damages for loss of cure. It was held that it is not suitable vehicle for introducing
into clinical law of negligence the right to recover damages for the loss of chance of
cure.66 It has been held that if damages are allowed on such considerations, it would
render injustice because in an action for wrongful death an injured person should be
compensated of any loss of chance for survival regardless of its remoteness. It is
submitted that all or nothing approach has to be followed. 67 Adopting the former

64

Scafidi v. Seiler, 119 N.J. 93 (1990).


Robert S. Bruer, Loss of a Chance as a Cause of Action in Medical Malpractice Cases, 59 MISSOURI LAW
REVIEW 969 (1994).
66
Lord philips, Greggs v. Scott, [2005] 2 W.L.R. 268 (H.L.).
67
Mayhue v. Sparkman, 653 N.E.2d 1384 (Ind. 1995), Perez v. Las Vegas Medical Center, 805 P.2d 589 n. 5 (1991).
65

32

approach would be contrary to a fundamental tenet of tort law because causation is a


matter of probability not possibility.68

7. Hence it is submitted that since the claimants have contended that they could have been
cured had right treatment would have been rendered. It is a case of loss of cure, unlike the
loss of chance and therefore the chain of causation is not completed. Further, there is high
burden of proof which the claimants have to discharge regarding the materiality of the
risk. The claimants will have to prove that in spite of there being multiple causes,
misdiagnosis and the excessive dosage are the one which have resulted in a loss of her
chance of not contracting the disease.69

II.

WHETHER THE CLAIMANTS SHOULD BE AWARDED DAMAGES FOR MEDICAL NEGLIGENCE


OF DEFENDANTS?

Assuming but not conceding that MrSachin Pawar and Mr Debjyoti Sarkar are negligent. The
compensation shall be calculated only by using Multiplier Method.
1. The multiplier method involves the ascertainment of the loss of dependency or the
multiplicand having regard to the circumstances of the case and capitalizing the
multiplicand by an appropriate multiplier. 70The choice of the multiplier is determined by
the age of the deceased (or that of the claimants whichever is higher) and by the

68

Falcon v. Memorial Hospital, 436 Mich. 443 (1990).


It has to be taken into consideration that she was already suffering from acute rashes, pain and fever. Three of them
are the symptoms of Toxic Epidermal Necrolysis ((1) Malay Kumar Ganguly; (2) Dr.KunalSaha v Dr.Sukumar
Mukherjee and Others, (2009) 9 S.C.C. 221 (India)).
70
Hodges v. Harland & Wolff Limited, [1965] 1 All ER 1086.
69

33

calculation as to what capital sum, if invested at a rate of interest appropriate to a stable


economy, would yield the multiplicand by way of annual interest.71
2. THE MULTIPLIER METHOD IS THE MOST APPROPRIATE METHOD HERE FOR
CALCULATING COMPENSATION.

3. The patient in the case here has succumbed to death at an age of 30. Considering Mrs
Sharon Stanley was a gynaecologist by profession. Not only there is a loss of dependency
to her husband but also he has suffered damages under the special heads such as pain and
suffering over the loss of her wife.

4. It has been held that the multiplier method is the proper and best method for computation
as there will be uniformity and consistency in their decisions.72 While applying the
multiplier method the court takes into account the pecuniary loss already suffered as a
result of the negligence complained of and loss of dependency based on the contributions
made by the deceased.73 The court has reiterated several times that multiplier method is
logically sound and it is legally well established.74 However the respondents might
contend that entire future earnings should be aggregated. A lump sum should be awarded
to procure a just compensation.75 However, It is submitted that such an approach has been

71

Hodges v. Harland & Wolff Limited, [1965] 1 All ER 1086.


General Manager, Kerala S.R.T.C v. Susamma Thomas, (1994) 2 SCC 176 (India).
73
Mallet v. McMonagle, [1970] AC 166 (H.L.).
74
Davies v. Taylor, [1974] AC 207 (H.L.), Raj Rani and Others v. Oriental Insurance Co. Ltd. and Others, (2009) 13
S.C.C. 654 (India), Nagappa v. Gurudayal Singh and others, (2003) 2 S.C.C. 274 (India), U.P. State Road Transport
Corporation and Others v. Trilok Chandra and Others, (1996) 4 S.C.C. 362 (India).
75
Janardan v. East Berkshire Health Authority, [1990] 2 Med L R 1 (H.L.), Thomas v. Brighton Health Authority,
[1997] 1 All ER 652 (H.L.).
72

34

held unscientific and lead to inconsistency in awarding compensation for further two
reasons.

5. First, it was held that since the life over a future period was filled with uncertainties,
therefore it will be unjust for the defendants to pay such a lump sum.76 On the other hand
the objective of granting compensation is not to open to up a chance for making fortune
out of it.77 Second, there is absolutely no other method to ascertain a just and equitable
compensation in the common law as well as in Indian jurisprudence. 78 The multiplier
method is the most appropriate method applicable in arriving at a just compensation.79
The multiplier method leads to arrive the awards at the same range. When the
factors/inputs are the same, and the formula/legal principles are the same, consistency
and uniformity and not divergence and freakiness are the result of such adjudication.80

6. Hence the compensation should be granted only using the multiplier method.

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:

76

Dr.Balram Prasad and Others v. Dr.KunalSaha and Another, (2014) 1 S.C.C. 384 (India).
U.P. State Road Transport Corporation and Others v. Trilok Chandra and Others, (1996) 4 S.C.C. 362 (India).
78
New India Assurance Company Limited v. SadanandMukhi and Others, (2009) 2 S.C.C. 417 (India).
79
Ningamma and Another v. United India Insurance Company Ltd., (2009) 13 S.C.C. 710 (India).
80
Lim PohChoo v. Camden and Islington Area Health Authority,[1980] A.C. 174 (H.L.).
77

35

1. Anti-Suit Injunction should be granted against claimants from proceeding in UK courts.


2. Defendants are not liable for medical negligence and should not be made to 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 Defendants

36