UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY, CHANDIGARH

BEFORE THE JUDICIAL MAGISTRATE

FIRST CLASS CHANDIGARH

CRIMINAL SUIT NO._ OF 202_

IN THE MATTER OF

STATE OF UT CHANDIGARH……………….……………..PROSECUTION

VERSUS

Mr. ROHIT………………………………………………................DEFENCE 1
XYZ HOSPITAL……………………………………………...……DEFENCE 2

FOR OFFENCES CHARGED UNDER:

SECTION 304A OF THE INDIAN PENAL CODE, 1860

MEMORANDUM ON BEHALF OF THE DEFENCE

Name: Isha Rani

Roll No.: 319/19

B.com.LL.B (Hons.)

Proposition No. 9

Group – F3
 ii
MEMORANDUM ON BEHALF OF THE DEFENCE
TABLE OF CONTENTS

TABLE OF CONTENTS

Table of Contents ii

List of Abbreviations iii

Index of Authorities iv

Table of Cases iv

Books v

Journals Referred vi

Websites vii

Statutes vii

Statement of Jurisdiction viii

Statement of Facts ix

Statement of Charges x

Summary of Arguments xi

Arguments Advanced xii

Prayer xx
 MEMORANDUM ON BEHALF OF THE DEFENCE iii

LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court
§ Section
Cri LJ / Cr LJ Criminal Law Journal
Cr.P.C. Code of Criminal Procedure
Med Medical
Ed. Edition
IPC Indian Penal Code
IC Indian Cases
pat Patna High Court
p. Page No.
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
LR Law Reporter
v. Versus
 MEMORANDUM ON BEHALF OF THE DEFENCE iv

INDEX OF AUTHORITIES

TABLE OF CASES:

1. Andrews v. Director of Public Prosecutions [1937] AC 576

2. Ashish Kumar Chauhan v. Commanding Officer, Civil Appeal No(s). 7175 of 2021
3. Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582
4. Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771
5. Calcutta Medical Research Institute v. Bimalesh Chatterjee I(1999) CPJ 13 (NC)
6. Dr. Suresh Gupta v. Govt. of NCT Delhi Appeal (crl.) 778 of 2004
7. Hucks v. Cole (1993) 4 Med LR 393
8. Jacob Mathew v. State of Punjab (2005) 6 SCC 1
9. Jones v. Hart 233 A.D.2d 297
10. Mahmood v. State of U.P. AIR 2008 515
11. Spring Meadows Hospital v. Harjol Ahluwalia 1998(2) SCALE 456 (SC)
12. State of Haryana v. Smt. Santram AIR 2000 SC 1888
13. Tomaso Bruno & Another Vs State of Uttar Pradesh (2015) 7 SCC 178
14. Umesh Chandra Samal v. State of Bihar (39) AIC 453 (Pat)

BOOKS:

1. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
2. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
3. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)
4. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
5. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
6. Sarkar, Law of Evidence, (13th Ed,1990)
7. Tapas Kumar Koley, Medical Negligence and The Law in India, Oxford Publication,
2010.
 MEMORANDUM ON BEHALF OF THE DEFENCE v

WEBSITES:

1. http://www.findlaw.com
2. http://www.judis.nic.in
3. http://www.manupatra.co.in/AdvancedLegalSearch.aspx
4. http://www.scconline.com

STATUTES:

1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)

2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)
4. The Medical Council Act, 1956

JOURNALS REFERRED:

1. All India Reporter

2. Supreme Court Cases
3. Indian Law Reporter
 MEMORANDUM ON BEHALF OF THE DEFENCE vi

STATEMENT OF JURISDICTION

It is humbly submitted before this court that the prosecution has filed a complaint before this
court under section 304A I.P.C against the alleged accused no.1and 2.

The instant matter has been submitted to the jurisdiction of this Hon’ble Court under Sec. 177
r/w Sec. 29 and column 6 of Part-I of the First Schedule of the Code of Criminal Procedure,
1973:

“26. Courts by which offences are triable-

Subject to the other provisions of this Code,
(a) any offence under the Indian Penal Code (45 of 1860), may be tried by-
i. the High Court, or ii. the Court of Session, or
ii. any other Court by which such offence is shown in the First Schedule to be triable;
[ Provided that any (offence under section 376, section 376A, section 376B, section 376C,
section 376D or section 376E of the Indian Penal Code (45 of 1860) shall be tried as far as
practicable by a Court presided over by a woman.]
(b) any offence under any other law shall, when any Court is mentioned in this behalf in such
law, be tried by such Court and when no Court is so mentioned, may be tried by-
i. the High Court, or
ii. any other Court by which such offence is shown in the First Schedule to be triable.

177. Ordinary place of inquiry and trial-

Every offence shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed.”
 MEMORANDUM ON BEHALF OF THE DEFENCE vii

STATEMENT OF FACTS

1. Rohit is a cardiothoracic surgeon, working in a multi-specialty hospital in Chandigarh.

2. On 2 April, 2023 he had already performed very complicated surgeries on 3 people. He

was about to leave for his home as his shift had ended but he was asked to perform another
surgery on a VIP patient by the chief of cardiac surgery.

3. Rohit protested saying he is extremely tired and that he would not be able to do justice to
the patient. But he was overruled by the chief.

4. Rohit performed the surgery flawlessly and asked the head nurse to close the surgery and
stitch the patient. When the head nurse started counting the equipment, Rohit said there is no
need to do this and hurried him along.

5. The patient on waking up complained of a slight pressure in the chest which was attributed
to the surgery as all his reports were alright. Within a few hours the patient developed a
raging infection and Rohit was asked to come to the hospital urgently. Rohit ordered a variety
of tests to be conducted but by the time he reached the hospital, the patient had died. The
family of the deceased was furious and they demanded that an autopsy be conducted in their
presence to which the hospital agreed.

6. On conducting the autopsy, a surgical sponge was found in the chest cavity of the patient
which the doctor performing the autopsy said was the cause of the infection that resulted in
patient's death. The family of the deceased filed an FIR against Rohit and the hospital under
section 304A of the IPC in Chandigarh.
 MEMORANDUM ON BEHALF OF THE DEFENCE vii
i

STATEMENT OF CHARGES

CHARGE 1

Mr. Rohit and the hospital have been charged under § 304A of the Indian Penal Code, 1860
for the crime of Medical Negligence.
 MEMORANDUM ON BEHALF OF THE DEFENCE ix

STATEMENT OF ISSUES

 WHETHER THIS COURT HAS JURISDICTION OVER THE MATTER?

 WHETHER MR. ROHIT IS LIABLE FOR MEDICAL NEGLIGENCE UNDER §

304A I.P.C?

 WHETHER XYZ HOSPITAL BE HELD LIABLE FOR MEDICAL

NEGLIGENCE UNDER § 304A I.P.C?
 MEMORANDUM ON BEHALF OF THE DEFENCE x

SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

ISSUE 1:
WHETHER THIS COURT HAS JURISDICTION OVER THE MATTER?

It is most humbly submitted that this Hon’ble Court does not have the jurisdiction to try the
present case. A medical negligence case can give rise to two types of legal action: a Criminal
case u/s 304-A of IPC and a consumer complaint or a civil case under law of torts for recovery
of compensation. What may be negligence in civil law may not necessarily be negligence in
criminal law. For negligence to amount to an offence, the criminal negligence, the degree of
negligence should be much higher i.e., gross. Negligence which is neither gross nor of a higher
degree may provide a ground for action in civil law but cannot form the basis for prosecution.
It is well settled from the judgment of the Supreme Court of India that Consumer Protection
Act is applicable to all professions including medical profession.

ISSUE 2:
WHETHER MR. ROHIT IS LIABLE FOR MEDICAL NEGLIGENCE UNDER § 304A
I.P.C?

It is humbly submitted that for proving negligence under the criminal law, the existence of
duty, breach and causation must be proved. The prosecution must prove that there exists a duty
of care; that there was a breach of that duty and that breach is to be characterized as gross
negligence. To impose criminal liability, under Section 304-A, it is necessary that the death
would be direct result of the gross negligence of the doctor, and the act must be proximate and
efficient cause without the intervention of another’s negligence. Dr. Rohit in the present case
acted in a professional manner - even though it was the end of his shift and he was mentally
and physically exhausted, after attending three very complicated surgeries, still he tried his
best to perform the surgery and do justice towards his patient - for which he could not be made
criminally liable. As the negligence in such instances is based upon the best judgment of the
practitioner against the background of the circumstances, considering the relevant
precautionary measures taken in the due course which needs to be considered by Court before
 MEMORANDUM ON BEHALF OF THE DEFENCE xi

implementing such liability. The most essential component in negligence under section 304-A
is to prove that the surgeon failed under the circumstances to provide an acceptable standard
care to his/her patient.

ISSUE 3:
WHETHER XYZ HOSPITAL BE HELD LIABLE FOR MEDICAL NEGLIGENCE
UNDER § 304A I.P.C?

The liability of a hospital in cases of medical negligence could be direct or vicarious. Direct
liability in this sense would mean a deficiency in the services provided by the hospital thus
making it unsafe and not suitable for treatment. Vicarious liability, on the other hand, would
refer to the liability of the hospital as an employer for the negligent acts of its employees.
However, in present times most doctors are not employees of the hospital and are independent
contractors instead. The hospital was not in direct control of the physical conduct of the
independent contractor. So, in the instant case, as Dr. Rohit was an independent contractor to
the hospital, no liability would thus arise on the part of the hospital for anything being done
by the doctor.
 MEMORANDUM ON BEHALF OF THE DEFENCE xii

ARGUMENTS ADVANCED

ISSUE 1

WHETHER THIS COURT HAS JURISDICTION OVER THE MATTER?

It is humbly submitted that jurisprudentially the consequences of legally cognizable medical

negligence can broadly be put into three categories:
-
Criminal liability,
-
Civil liability, and
-
Disciplinary action.

Criminal liability can be fastened pursuant to the provisions of the Indian Penal Code, 1860
(IPC), which are general in nature and do not provide specifically for “medical negligence”.
For instance, Section 304-A of IPC (which deals with the death of a person by any rash or
negligent act and leads to imprisonment up to 2 years) is used to deal with both cases of
accidents caused due to rash and negligent motor vehicle driving and also medical negligence
leading to the death of a patient. Similarly, other general provisions of IPC, such as Section
337 (causing hurt) and 338 (causing grievous hurt), are also often deployed in relation to
medical negligence cases.

Civil liability, i.e., monetary compensation can be fastened under the general law by pursuing
a remedy before appropriate civil court or consumer forums. An action seeking imposition of
the civil liability on the erring medical professional is initiated by dependents of the deceased
patient or by the patient himself (if alive) to seek compensation. Doors of permanent lok
adalats, constituted pursuant to the Legal Services Authority Act, 1987, can also be knocked
at by a complainant seeking relief in the relation to services “in a hospital or dispensary”
which are considered to be “public utility services” within the meaning thereof, wherein first
a conciliation is attempted and thereafter determination on merits of the matter is made.
Permanent lok adalats are conferred powers akin to that of a civil court in specified matters
(such as summoning and enforcing the attendance of witnesses) and have jurisdiction in the
matters up to Rs. 1 Crore.
 MEMORANDUM ON BEHALF OF THE DEFENCE xii
i

Another consequence of medical negligence could be in the form of imposition of penalties

pursuant to disciplinary action. Professional misconduct by medical practitioners is governed
by the Indian Medical Council (IMC) (Professional Conduct, Etiquette, and Ethics)
Regulations, 2002, made under IMC Act, 1956. Medical Council of India and the
appropriate State Medical Councils are empowered to take disciplinary action whereby the
name of the practitioner could be removed forever or be suspended. Professional misconduct
is, however, a broad term which may or may not include medical negligence within its fold.

The line between civil liability and criminal liability is thin. The Supreme Court in Dr. Suresh
Gupta v. Govt. of NCT Delhi,1 put the standard for fastening criminal liability on a high
pedestal and required the medical negligence to be “gross” or “reckless.” Mere lack of
necessary care, attention, or skill was observed to be insufficient to hold one criminally liable
for negligence.

The three-judge bench in Jacob Mathew v. State of Punjab 2, on a reconsideration endorsed

the approach of high degree of negligence being the prerequisite for fastening criminal liability
as adopted in Dr. Suresh Gupta, and it was observed that in order to hold the existence of
criminal rashness or criminal negligence, it shall have to be found out that the rashness was of
such a degree as to amount to taking a hazard knowing that the hazard was of such a degree
that injury was most likely imminent.

It is humbly submitted that in the present matter, Dr. Rohit did not act negligently at all. It is
evident from the facts that he did perform the surgery flawlessly despite being tired of per-
forming three extremely complicated surgeries the entire day. It is however, unfortunate that
the events at the end of the surgery lead to the death of the patient. But to put a mere error of
judgement on part of the nursing staff as gross negligence of the surgeon would be wrong. As
observed by the Supreme Court in Spring Meadows Hospital v. Harjol Ahluwalia3, errors of
judgment do not necessarily imply negligence. It has been recognized by the courts that
error of judgement is not a breach of the duty of care.

1
Appeal (crl.) 778 of 2004
2
(2005) 6 SCC 1
3
1998(2) SCALE 456 (SC) Civil Appeal No. 7708 of 1997 With Civil Appeal No. 7858
 MEMORANDUM ON BEHALF OF THE DEFENCE xi
v

It can be described as the recognition in law of the human fallibility in all spheres of life. A
mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is
situation in which only in retrospect can we say there was an error. At the time when the
decision was made, it did not seem wrong. In Umesh Chandra Samal v. State of Bihar 4, the
complaint was filed against the doctor for negligence in treatment of the deceased but the
order of cognizance was quashed as the negligence alleged was not of the nature to fasten
criminal liability on the doctor. And in the case at hand, if Dr. Rohit can be said to be guilty of
anything, it’s the error of judgement.

In Jacob Mathew’s case it has been stated that simple negligence may result only in civil
liability…and for civil liability only damages can be imposed by the Court in a civil suit or by
the Consumer Fora. However, what is simple negligence and what is gross negligence may be
a matter of dispute even among experts. The Court further observed that a balance has to be
struck in such cases. While doctors who cause death or agony due to medical negligence
should certainly be penalized, it must also be remembered that like all professional doctors too
can make errors of judgment but if they are punished for this no doctor can practice his
vocation with equanimity. Indiscriminate proceedings and decisions against doctors are
counter- productive and are no good for society. They inhibit the free exercise of judgment by
a professional in a particular situation.

It is further submitted that for imposition of civil liability on the hospital, it is not necessary
that treating doctors or the staff be made a party (the hospital alone can be the party to the
proceeding), and it is immaterial if the medical professionals are the permanent staff or come
on a visiting basis.

ISSUE 2

4
(39) AIC 453 (Pat)
 MEMORANDUM ON BEHALF OF THE DEFENCE xv

WHETHER MR. ROHIT IS LIABLE FOR MEDICAL NEGLIGENCE UNDER § 304A

I.P.C?

It is humbly contended before this hon’ble court that Mr. Rohit (hereinafter to be referred as
the ‘defendant’) is not guilty of the offences under Sec.304 of the Indian Penal Code, 1860.
In the matter at hand, it has been wrongfully alleged that the defendant has committed
medical negligence in course of performing the surgery. The matter of medical negligence by
the doctor will be dealt with in the present issue (Issue I), while on the hospital will be
disproved in the subsequent issue (Issue II).

“304A. Causing death by negligence: Whoever causes the death of any person by doing any
rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with both.”

NEGLIGENCE OF THE DOCTOR OR THE NURSE?

Negligence is simply the failure to exercise due care. The three ingredients of negligence are as
follows:
1. The defendant owes a duty of care to the plaintiff.
2. The defendant has breached this duty of care.
3. The plaintiff has suffered an injury due to this breach.

To comprehend the scope of negligence, it is important to understand the scope of the duty
imposed on a doctor or medical practitioner. A doctor or other medical practitioner, among
others, has a duty of care in deciding whether to undertake the case or not, duty in deciding
what treatment to give, duty of care in administration of that treatment, duty not to undertake
any procedure beyond his or her control, and it is expected that the practitioner will bring a
reasonable degree of skill and knowledge and will exercise a reasonable degree of care. In the
instant matter, Dr. Rohit did not want to take the charge of the patient as he knew given his
mental and physical state at the time he won’t be able to do justice to that patient. He even
honestly communicated his hesitation to the Chief of the Surgery. Furthermore, he only took
the patient under personal care when overruled by the Chief of the Surgery. This only implies
that the act done by Dr. Rohit was done in a reasonable manner.

The Supreme Court in the case of State of Haryana v. Smt. Santram5 has held that every doctor
5
AIR 2000 SC 1888.
 MEMORANDUM ON BEHALF OF THE DEFENCE xv
i
“has a duty to act with a reasonable degree of care and skill.” However, what must be noted is
that the legal concept of medical negligence is not just limited to the conduct of doctors but it
applies to nurses, pharmaceutical companies, healthcare facilities and other health care
providers too.

So, the duties of the head nurse are as under:

 Before an operation
 Ensures that the circulating nurse has checked the all the equipment needed
during procedure.
 Ensures that the theatre has been cleaned before the trolley is set.
 Prepares the instruments and equipment needed in the operation.
 Prepare own self by using sterile technique like scrubbing, gowning and gloving.
 Receives sterile equipment via circulating nurse using sterile technique.
 Performs initial sponges, instruments and needle count, checks with circulating
nurse.

 End of operation
 Undertake count of sponges and instruments with circulating nurse and correlate
with the pre-surgery findings.
 Informs the surgeon regarding count result.
 Assist the surgeon for suturing the surgical incision.
 Apply the dressing over the surgical site.
 Clears away instrument and equipment

LIABILITY OF THE SURGERY ON DOCTOR (EXTENT)?

Extract of important guidelines of the Hon’ble Supreme Court of India are given hereunder:
"i) A simple lack of care, an error of judgement or an accident, is not proof of negligence on
the part of a medical professional.”

A doctor treats the patient in emergent situations and is likely to make errors. The standard
expected from any medical practitioner in an emergency are always lower than the standards
expected from him in an ideal setting is the law.

In para 29 the Hon'ble Supreme Court in Jacob Mathew v. State of Punjab & Anr. states that:
 MEMORANDUM ON BEHALF OF THE DEFENCE xv
ii
"A mere deviation from normal professional practice is not necessary evidence of negligence.
Let it also be noted that a mere accident is not evidence of negligence. So, also an error of
judgment on the part of a professional is not negligence per se. Higher the acuteness in
emergency and higher the complication, more are the chances of error of judgment." "A
medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out
of his suffering. He does not gain anything by acting with negligence or by omitting to do an
act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence
before a medical practitioner is charged with or proceeded against criminally. A surgeon with
shaky hands under fear of legal action cannot perform a successful operation and a quivering
physician cannot administer the end dose of medicine to his patient."

Jacob Mathew v. State of Punjab: The Supreme Court in this case had observed that A surgeon
with shaky hands under fear of legal action cannot perform a successful operation, and a
quivering physician cannot administer the end-dose of medicine to his patient 29. If the hands
are trembling with the dangling fear of facing a criminal prosecution in the event of failure for
whatever reason—whether attributable to himself or not, neither can a surgeon successfully
wield his life-saving scalpel to perform an essential surgery nor can a physician successfully
administer the life-saving dose of medicine. Discretion being the better part of valor, a medical
professional would feel better advised to leave a terminal patient to his own fate in the case of
emergency where the chance of success may be 10% (or so), rather than taking the risk of
making a last ditch effort toward saving the subject and facing a criminal prosecution if his
effort fails. Such timidity forced upon a doctor would be a disservice to society.”

MENS REA:
Extract of important guidelines of the Hon’ble Supreme Court of India are given hereunder:
“xiii) No sensible professional would intentionally commit an act or omission which would
result in loss or injury to the patient.”

For proving negligence under the criminal law, the prosecution must prove that there exists a
duty, there was breach of the duty causing death and that breach to be characterized as gross
negligence.10 In order to constitute negligence, simple lack of care is not sufficient, the
negligence must be of high degree to amount an offence with element of mens rea. The
Supreme Court in the case of Jacob Mathew v. State of Punjab that the essential ingredient of
mens rea cannot be excluded from consideration when the charge in a criminal court consists of
criminal negligence. In the present case also, there was the lack of intention on the part of the
 MEMORANDUM ON BEHALF OF THE DEFENCE xv
iii
doctor and even if it could be construed as a mere lack of care, it would not form sufficient
mens rea as to hold criminally liable. The same is provided by IPC as under:

Defences available for a doctor under the Indian Penal Code

Section 80 of Indian Penal Code – “Anything which is done by accident or misfortune and
without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by
lawful means and with proper care and caution is not an offense.”

Further, Lord Atkin, in Andrews v. Director of Public Prosecutions 6, stated that simple lack
of care in imposing criminal liability is not enough as a very high degree of negligence is re-
quired along with mens rea is required to be proved before commission of an offence is
established. Thus, considering the quantum of care taken by Dr. Rohit while operating the
patient would not be a criminal negligence as he acted in the best interest of the patient with
the indulgence of standard care in the process.

ONUS OF PROOF:
It has been held in different judgments by the National Commission and by the Hon’ble
Supreme Court that a charge of professional negligence against a doctor stood on a different
footing from a charge of negligence against a driver of a vehicle. The burden of proof is
correspondingly greater on the person who alleges negligence against a doctor. It was also held
in Calcutta Medical Research Institute v. Bimalesh Chatterjee 7 that the onus of proving
negligence and the resultant deficiency in service was clearly on the complainant. In the cases
involving medical negligence, at the beginning, the person alleging the negligence has the
initial onus to make out a case of negligence, and thereafter the onus shifts on to the doctor or
the hospital to satisfy that there was no lack of care or diligence. It may also be noted that for
imposition of civil liability on the hospital, it is not necessary that treating doctors or the
nursing staff be made a party (the hospital alone can be the party to the proceeding), and it is
immaterial if the medical professionals are the permanent staff or come on a visiting basis.

In Ashish Kumar Chauhan (Retd.) vs Commanding Officer 8, it was upheld by the court that in
a case involving medical negligence, once the initial burden has been discharged by the
complainant by making out a case of negligence on the part of the hospital or the doctor
concerned only then the onus shifts on to the hospital or to the attending doctors and then it
6
[1937] AC 576
7
I (1999) CPJ 13 (NC)
8
Civil Appeal No(s). 7175 of 2021
 MEMORANDUM ON BEHALF OF THE DEFENCE xi
x
is for the hospital to satisfy the Court that there was no lack of care or diligence.

The Hon’ble Supreme Court of India and the Hon’ble High Court have issued guidelines time
and again in this regard to the effect that the doctors shall be held criminally responsible only if
a prima facie case is made out and after getting an expert opinion from a qualified doctor,
preferably a Government doctor of adequate qualification and training.

Keeping in the view the rise in criminal prosecution of doctors, which is both embarrassing and
harassing for them, and to protect them from frivolous and unjust prosecutions Supreme Court
laid certain binding guidelines, which are as follows:

[Jacob Mathew v. State of Punjab]

1. Private complaint may not be entertained unless the complainant has produced prima
facie evidence in the court in the form of a credible opinion given by another competent
doctor
2. Investigation officer should obtain an independent and competent medical opinion
preferably from a doctor in government service qualified in that branch of medical
practice who can normally be expected to give an impartial and unbiased opinion
applying Bolam test to the facts collected in the investigation
3. Doctor may not be arrested in a routine manner unless the arrest is necessary for
furthering the investigation or for collecting the evidence or if the investigation officer is
satisfied that doctor may flee.

The necessity for obtaining independent medical opinion was insisted upon considering that the
knowledge of medical science to determine whether the acts of medical professional amounts to
negligent act within the domain of criminal law could not be presumed.

Whereas it is humbly submitted before this court that no such opinion has been mention to be
taken. It has been done neither at the time of finding the suit nor has been taken at the
investigation station. And if at all taken, no such copies has been presented before this hon’ble
bench. Thus, the case is liable to be dismissed at this very instance.

FORMING AN EXPERT COMMITTEE BY THE JUDICIARY:

 MEMORANDUM ON BEHALF OF THE DEFENCE xx

While dealing with medical negligence cases, the opinions of the medical experts are often
called for from both sides. Section 45 of the Indian Evidence Act, 1872, provides that when a
court has to form an opinion on a point of science, the opinion of a person especially skilled in
such science is considered “relevant.” The real function of the expert is to put before the court
all the material together with reasons which induce him to come to a certain conclusion so that
the court, even though not an expert, may form its own judgment using its own observation of
those materials. Experts only render opinions and those that are “intelligible, convincing, and
tested” become important factors in the determination of the matter together with other
evidence. Therefore, while the courts do not substitute their views for the view of the experts
but if they determine that the course adopted by the medical professional concerned was
inconceivable or highly unreasonable, it would be open to the court to return a finding of
medical negligence.

Doctor's opinion as medical expert u/s 45 Evidence Act & its evidentiary value?
“As per Sec. 45 of the Evidence Act, a doctor is a medical expert. It is well settled that medical
evidence is only the evidence of opinion and it is not conclusive and when oral evidence is
found to be inconsistent with medical opinion, the question of relying upon one or the other
would depend upon the facts and circumstances of each case,” Mahmood Vs State of U.P.9

The courts normally would look at expert evidence with a greater sense of acceptability but the
courts are not absolutely guided by the report of the experts, especially if such reports are
perfunctory and unsustainable. The purpose of an expert opinion is primarily to assist the court
in arriving at a final conclusion but such report is not a conclusive one. The court is expected to
analyze the report, read it in conjunction with the other evidence on record and form its final
opinion as to whether such report is worthy of reliance or not. See: Tomaso Bruno & Another
Vs State of Uttar Pradesh10 (Three-Judge Bench).
So it is hereby requested to the hon’ble court that an order to form an expert committee of the
doctors be passed, so as to get their opinion on the present case.

THE ACT WAS DONE IN GOOD FAITH:

9
AIR 2008 515
10
(2015) 7 SCC 178
 MEMORANDUM ON BEHALF OF THE DEFENCE xx
i
It is humbly submitted that the concept of good faith in respect of criminal liability operates
differently, as nothing is said to be done or believed in “good faith” which is done or believed
without due care and attention. Lord Denning, as expressed in the case of Hucks v. Cole11, that
a medical practitioner cannot be held liable merely because things went wrong from the
mischance or through an error of judgment, but would be liable only where his con- duct
fell below to that of the standards of a reasonably competent practitioner.
The following is the said extract from Merry and McCall Smith: Errors, Medicine and the
Law:
Some of life’s misfortunes are accidents for which nobody is morally responsible.
Others are wrongs for which responsibility is diffuse. Yet others are instances of
culpable conduct, and constitute grounds for compensation and at times, for
punishment. Distinguishing between these various categories requires careful,
morally sensitive and scientifically informed analysis.

Thus, a person acting under such principle of good faith cannot be determined under the
criminal negligence, otherwise it would vitiate the relation of a doctor with his patient which is
that of uberrimae fidei, i.e., of utmost and abundant confidence. Therefore, I humbly plead
that the acts of Dr. Rohit, in the light of all circumstances, were in utmost good faith of the
patient.

PROFESSIONAL NEGLIGENCE:

In order to decide whether negligence is established in any particular case, the alleged act,
omission, or course of conduct that is the subject of the complaint must be judged not by
ideal standards nor in the abstract but against the background of the circumstances in which
the treatment in question was given. The most essential component in negligence is to prove
that the surgeon failed under the circumstances to provide an acceptable standard care to
his/her patient. The circumstances vary in every single case and it is almost im- possible to
compare two cases; Also, every surgeon would react differently to the circum- stances
depending on the level of experience, knowledge, training and school of thought.

When this standard of care is not rendered, it comes within mischief of negligence as to not
performing the duty properly which was expected of him under the law. Though, an error of
11
(1993) 4 Med LR 393
 MEMORANDUM ON BEHALF OF THE DEFENCE xx
ii
judgment on part of a professional is not evidence of negligence per se. No sensible
professional would intentionally commit such an act or omission which would result in loss
or in- jury to the patient as the professional reputation of the person is at stake. In the instant
matter, it is pertinent to note that Dr. Rohit, who is a well-known cardiothoracic surgeon, so
his competence and skill cannot be challenged given the circumstances of the case.

Furthermore, the Bolam principle12 (Bolam v. Friern Hospital Management Committee), is

one way to show that the care provided was standard or sub-standard. It has been perceived as
being reliant on the testimony of the professionals supporting the defendant. The Bolitho
test13 (Bolitho v. City and Hackney Health Authority), on the other hand, by implication
imposes that the standard proclaimed must be justified on a logical basis, taking into
consideration the risks and benefits. This shift to Bolitho test dictates that, it is the
responsibility of the Court to determine whether or not that particular course of action would
have been “logical”.

Thus, rendering the offence of a negligent act on a professional person and ordinary prudent
man differs as to the degree of establishing such negligence act is higher in the professional
conduct. Also, a medical practitioner faced with an emergency ordinarily tries his best to re-
deem the patient out of his suffering as he has nothing to gain by acting negligently or by
omitting to do an act. Thereby considering the above parameters, it is contented that Dr.
Rohit was acting in a professional manner, trying his best to do justice to the patient, took the
step of operating the patient for which he could not be made criminally liable as the
negligence in such instances is based upon the best judgment of the practitioner considering
the relevant precautionary measures taken in the due course which needs to be considered by
Court before implementing such liability.

ISSUE 3
12
[1957] 1 WLR 582
13
[1996] 4 All ER 771
 MEMORANDUM ON BEHALF OF THE DEFENCE xx
iii

WHETHER XYZ HOSPITAL BE HELD LIABLE FOR MEDICAL NEGLIGENCE

UNDER § 304A I.P.C?

It is humbly contended before this Hon’ble Court that the defendant is not guilty for
committing the offence of medical negligence under Sec 304A, IPC.

The liability of a hospital in cases of medical negligence could be direct or vicarious. Direct
liability in this sense would mean a deficiency in the services provided by the hospital thus
making it unsafe and not suitable for treatment. Vicarious liability, on the other hand, would
refer to the liability of the hospital as an employer for the negligent acts of its employees.

Some of the conditions under which a hospital is directly liable are:

 Improper maintenance of hospital resulting in an injury to or death of the patient.

 Failure in providing a safe and suitable environment as guaranteed–like when the patient
is affected by malfunctioning equipment, incompetent staff, inadequate accommodation,
etc.
 Deceptive or misleading signboards, advertisements, and notices, false claims of
availability of certain facilities which may be seen as a deficiency in services or as unfair
trade practices under the Consumer Protection Act and damages can be awarded for such
malpractices.
 Charging for a facility which was not provided, or charging more than what is mentioned
in the displayed list of charges or agreed.
 Testing for HIV and Hepatitis B is either mandatory or voluntary. When testing is legally
done without the consent of the patient, it is known as mandatory testing for instance
when screening for blood donors, semen donors or organ donors. In other cases it is
voluntary, and express written consent of the patient is necessary to respect his/her need to
maintain confidentiality.
 Improper maintenance of records of treatment and failure to hand over such records to the
patient or his authorized attendant/legal authorities within 72 hours, which is in violation
of the Medical Council of India Regulations, 2002.
 Also, if such records are not provided to the patient or attendant, it may also amount to
deficiency in services under the Consumer Protection Act, 1986.
 MEMORANDUM ON BEHALF OF THE DEFENCE xx
iv
The employer is responsible not only for his acts and omissions but also for those of his
employees, as long as such acts occur within the course and scope of employment. This
liability is based upon the maxims “respondent superior” which means “let the master
answer” and “qui facit per alium facit per se” which means “He who acts through another
does the act himself.”

Doctrines Of Vicarious Liability In Medical Negligence:

A. Captain of the Ship Doctrine

This doctrine is largely rejected in contemporary times in most of the jurisdictions, however,
it served many courts around the world for the longest time to decide cases of vicarious
liability in medical negligence. This emerged in the late 1940s in the United Kingdom and
was used to give relief to the patients who had suffered medical injuries during treatment or
surgeries.

According to this doctrine, the mere presence of the doctor or head surgeon or physician in
the operation room shall hold him or her liable for the negligence of everyone in that room.
Hence the name captain of the ship doctrine, which stems from the fact that on an actual ship,
the captain is held responsible for all the acts and omissions of his entire crew present on that
ship.

However, in present times most doctors are not employees of the hospital and are
independent contractors instead. Whether or not a doctor is an employee of the hospital
would depend on upon the nature of his/her relationship with the hospital.

If the doctor is an independent contractor and an employee makes a mistake on their watch,
the doctor rather than the hospital is liable. It means the hospital is not considered liable or
negligent and lawsuits must be pursued against the doctor directly.

B. Respondent Superior
Under the doctrine of Respondent Superior, the basic rule of agency is looked at. In that
sense, the court sees if the master is subject to liability for the wrongful acts or omissions of
his or her servants, committed when acting within the scope of the employment. Courts also
considers whether the master qualifies as a principal who hires or recruits another individual
in the nature of employment to render his/her duties or service in the principal's matters and
 MEMORANDUM ON BEHALF OF THE DEFENCE xx
v
exudes control over the physical conduct of said individual in the discharge of the service.
This rule was laid

down in the landmark case of Jones v. Hart 14and was, for a long time accepted standard and
tool to judge matters of vicarious liability in medical negligence cases.

Under this doctrine when the principal or master is not in direct control of the physical
conduct of the independent contractor, the principal shall not be held vicariously liable for the
same. Respondent superior is applied to the health care industry so that a physician "is
responsible for an injury done to the patient through the want of proper skill and care in his
[or her] assistant, apprentice, agent, or employee."

The hospital was not in direct control of the physical conduct of the independent contractor.
So in the instant case, as Dr. Rohit was an independent contractor to the hospital, no liability
would thus arise on the part of the hospital for anything being done by the doctor.

14
233 A.D.2d 297
 MEMORANDUM ON BEHALF OF THE DEFENCE xx
vi

PRAYER

Wherefore, in light of the facts stated issues raised, arguments advanced and authorities

cited, may this Hon’ble Court be pleased to:

1. The suit be dismissed.

2. Acquit Mr. Rohit of the offence of committing medical negligence under § 304A of

the Indian Penal Code, 1860.

3. Discharge XYZ Hospital of the liability of medical negligence under § 304A of the

Indian Penal Code, 1860.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience.

All of which is most humbly and respectfully submitted

S/d

COUNSEL FOR THE DEFENCE

MEMORANDUM ON BEHALF OF THE DEFENCE xx
vii