Final Petitioner

IN THE HONBLE SUPREME COURT OF OMBUDSTAN
PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF OMBUDSTAN
IN PETITION NO:-______________/2014
IN THE MATTER OF
Mrs. Schmidt
PETITIONER NO. 1
AND
Human Rights Commission Ombudstan
PETITIONER NO. 2
V.
Government Of Ombudstan
RESPONDENT NO.1
AND
Four Pills Hospital
RESPONDENT NO. 2
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
The 6th RLC Saquib Rizvi Memorial National Moot Court Competition 2014
TABLE OF CONTENTS
INDEX OF AUTHORITIES. 3
STATEMENT OF JURISDICTION.6
STATEMENT OF FACTS.7
STATEMENT OF ISSUES16
SUMMARY OF ARGUMENTS ..17
ADVANCE ARGUMENTS..19
PRAYER FOR RELIEF.33
2
MEMORANDUM FOR THE PETITIONER
INDEX OF AUTHORITIES
A.
Cases Cited
1.
Achutrao Haribhau Khodwa v. State of Maharashrta AIR 1996 SC 2377
2.
Balram Prasad vs Kunal Saha & Ors (2013) 6 SCC 385
3.
Barenet v Chealsea and Kensington Hospital Management Committee (1968) 1 All ER

1068
4.
Blyth v Birmingham Waterworks Co. (1856) 11 Ex 781
5.
Capital and Counties v. Hampshire County Council (1997) Q.B 1004 at 1035
6.
Cartlege V. E Jopling & Sons Ltd. (1963) 1 All ER 341
7.
Craig v Glasgow Victoria and Leverndale Hospitals Bord of Management (22 March
1974, unreported)
8.
Davis v. Powell Duffrya Associated Collieries Ltd.,AIR 1942 AC 601
9.
Donoghue V Stevenson (1932) A.C 362
10.
Eckersely v Binnie &Partners (1988) 18 Con. L.R. 1 at 80
11.
G. Williams, The Aims of Law of Torts 137 (1951)
12.
Indian Medical Association v. V.P Shantha (1995) 6SCC 651
13.
J.S Bindra v. State of Gujarat 2012 (2) GLR 1156
14.
Jacob Mathew v. State of Punjab (2005) 6 SCC 1
15.
Jay Laxmi Salt Works v. State of Gujarat (1994) 3 JT 492
16.
Jones V Great Western Railwa Co., (1930) 47 T.L.R 39 at 45
17.
Jones V Manchester Coorporation (1952) Q.B 852 at 867
18.
19.
Kapur v. Marshall ,(1978) 85 D.L.R (3d) 566 at 574, Ont HC
20.
Kishorilal v. Chairman Employees State Insurance Corp. (2007) 4 SCC 579
21.
Lata Wadhwa v. State of Bihar (2001) 8 SCC 197
22.
Layden v. Cope ,(1984) 28 C.C.L.T 140, Alta QB
23.
Livingstone v. Rawyards Stone Co AIR 1880 ASC 25

3
24.
Lloyds Bank Ltd. v. E.B Savory & Co. (1933) A.C 201
25.
MCD v. Uphar Tragedy Victims Assn (2011) 14 SCC 481
26.
Mellor v Sheffield Teaching Hospitals NHS trust ,(2004) EWHC 780
27.
New Kattalai Canal and Aerie Pasana Vivasayigal Welfare Association, K Santhanoor V.
Union of India (2012) 1 MLJ 207
28.
Peoples Union for Democratic Rights v. Union of India (AIR 1982 S C 1473)
29.
Poonam Verma v. Ashwin Patel, (AIR 1996 SC 2111)
30.
R v Healy (2003) 2 Cr App R (S) 87
31.
R.D Hattangadi v. Pest Control India, AIR 1995 SC 755
32.
Reshma Kumari v. Madan Mohan (2013) 9 SCC 65
33.
Roe V Minister of Health, (1954) 2 Q.B 66
34.
S.F. Gupta and others vs. Union of India, AIR 1982 SC 149
35.
Sarla Verma v. DTC (2009) 6 SCC 121 : (2009) 2 SCC 770
36.
Scott v London & St. Katherine Docks Co.,(1865) 3 H & C 596
37.
Suo Moto v. State of Gujarat 2012 (2) GLR 1178
38.
Union Carbide Corporation v. Union of India, 1988 MPLJ 540
39.
Wilsher v Essex Area Hospital Authority (1987) Q.B 730
40.
YF v Turkey (2004) EHRR 34
B.
Books And Articles Cited
1.
Article
on
Public
Interest
Litigation,
India,
available
at:
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41daaa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence
(Visited
on
September
5,2014)
2.
Article
on
United
Nations
Declaration
on
Human
Rights,
available
at
http://nhrc.nic.in/documents/UDHR_Eng.pdf (Visited on September 5, 2014)

3.
4.
Editors Adv. Mihir Desai & Adv. Kamayani Bali Mahabal, Health Care Case Law in
India (Centre for Enquiry into Health and Allied Themes,Delhi,2007)
4
5.
Facts
on
Human
Rights
in
India,
available
at:
http://www.ohchr.org/Documents/Publications/Factsheet31.pdf (Visited on September

6,2014)
6.
Facts
on
Medical
Care
and
the
State,
available
at:
http://www.who.int/mediacentre/factsheets/fs323/en/ (Visited on September 6,2014)

7.
8.
Human rights in patient care: A theoretical and practical framework by Jonathan Cohen
and Tamar Ezer Health and Human Rights 2013, 15/2
9.
Information on National Human Rights Commission India, available at :

http://nhrc.nic.in/ (Visited on September 5, 2014)
10.
Information
on
Public
Interest
Litigation
in
India,
available
at:
http://www.maheshwariandco.com/repository/articles/downloads/public_Interest_Litigati
on.pdf (Visited on September 5,2014)
11.
Jonathan Herring ,Medical Law and Ethics 252 (Oxford University Press, 2nd Edition,
2012 )
12.
K.Kannan, Medicine and Law (Oxford Universal Press,1st Edition 2014)
13.
M.P Jain, Indian Constitutional Law (Lexis Nexis Butterworths Wadhwa,Nagpur,2012)
14.
Priyananth Sen, Hindu Jurisprudenc 336; Ramaswamy Iyers Law of Torts (7th edition,
1975)
15.
Ratanlal and Dheerajlal,Law of Torts4 (26th Edition Reprint 2012)
16.
Relationship
between
human
rights
and
health
care,
available
at:
http://www.nesri.org/programs/what-is-the-human-right-to-health-and-health-care
(Visited on September 6,2014)
C. DYNAMIC LINKS
1. www.indiankanoon.org
2. www.manupatra.com
3. www.westlawindia.com
5
STATEMENT OF JURISDICTION
The Honble Supreme Court of Ombudstan has the inherent jurisdiction to try, entertain and
dispose off the present case by virtue of Article 32 of Constitution of Ombudstan.
6
STATEMENT OF FACTS
1. Trauma care around the world has been inextricably linked to varied causes. It originated from
Caliphates to the Medieval Wars, World Wars, Conquest Wars and now the modern warfare.
During the Revolutionary Wars, trauma care was based on specific trauma principles particularly
those espoused by the pre medieval medical care professionals. Surgical procedures were limited
mostly to soft tissue injuries and amputations. The Colonial Civil War was remarkable because
of the contributions that were made to the development of systems of trauma care. The sheer
magnitude of casualties required extensive infrastructure to support the surgeons at the battlefield
and to care for the wounded. For the first time, in an armed conflict, anesthetics were used on a
routine basis of how frequently lessons have to be relearned regarding the treatment and care of
wounds.
2. In modern times, war zone wounds have become a part of the reported trauma incidences.
We can classify trauma occurrences to industrial-oriented, traffic accidental and terrorist related
trauma. As a consequence, the treatment of patients with shock and such pandemic similarities in
injuries sustained has evolved with time and nature of the trauma resulting in better outcomes
and receding failure recordings. From normal bandaging to surgery with compulsory amputation
and now the modern methods of anesthetic surgery, trauma care has come a long way from its
inception and recognition. The first trauma centre for civilians was started in 1966. Since then,
efforts to study trauma management have documented the efficacy of trauma systems in reducing
mortality and disability.
3. One of such pioneers, and one of the most successful researchers and a doctor in the field of
trauma care was Dr. Tony Stark. Dr. Stark who lost his parents and family in a mid-eastern civil
war, developed great affinity to trauma care and decided to make his life useful in the service of
these victims. Completing his education from Turmerica, which was considered to have the best
health care institutions in the world, proved very beneficial to Dr. Starks cause.
7
4. His research and efforts were recognized and appreciated all over the world. Dr. Stark
developed a modern trauma care system called as Triage. In the system of Triage, a multilevel triage algorithm (listed as standard operating procedure in medical textbooks) was
formulated, which provides clinically relevant stratification of patients into categories. Before
the conceptualization of Triage, patients were treated by the ordinary FIFO (First in First Out)
method. This system resulted in wonders with respect to the treatment of about two hundred and
fifty patients that was directed to the Turmerican National Hospital when Turmerica witnessed
a hideous terrorist attack on its commercial hub. Thousands of patients were directed to various
trauma care centers in Turmerica simultaneously with similar injuries but with varying
intensities. A post medical analysis carried out suggested that this method should be adopted
worldwide, since terrorism was on an increase. The world of medicine thus, with the help of Dr.
Stark proved to be a more efficient trauma care system to the people.
5. Dr. Stark became a world famous figure who was headed to top medical institutions for
training, delivering lectures and various other trauma related problems. Dr. Stark pledged his
expertise to Trauma care. He came up with a new trauma care mechanism called Hypotensive
Resuscitation. This system reduced the risk of having any heart failures while treating the
wounds and injuries. His next inventive work was Graph Tissue Storage; which basically was
about freezing and storing them in life compatible chemicals, whereby these tissues could be
used again in the future. He became a celebrated scientist and was featured on cover pages of
Medical Journals. He was appreciated for saving lives through his contributions to the Medical
fraternity. He was awarded the highest Medical Honor, Red Crucifix, for his continuous work in
the field of trauma and especially for his Hypotensive Resuscitation technique.
6. In his quest for the Holy Grail in ultra modern trauma care techniques and the grit to stay one
step ahead of death, he achieved the gold mine of his career by propagating a potential method
called Hypothermia Method. Through the induction of hypothermia the surgeons would drain
the patients blood and replace it with freezing saline water, thus stalling the heart beat and other
vital organs in suspended animation. The patients, in such state, in effect, would be clinically
dead. On inducing hypothermia and slowing metabolism in dying patients, doctors could hope to
8
buy crucial time in which they would try to treat the victims' wounds. In this state, almost no
metabolic reactions would happen in the body, so cells could survive without oxygen.
7. In this method the doctors would insert a tube called Cannula into the patient's aorta,
flushing the circulatory system with a cold saline solution until body temperature falls to ten
degree Celsius. As the patient enters a pre-planned suspended animation, without vital signs, the
surgeons would have sufficient time and atmosphere to repair the injuries before brain damage
occurs and perform these actions without the nerve wrecking unstable vital sign alerts. After the
operation, the doctors would use a heart-lung bypass machine with a heat exchanger to return
blood to the patient. Gradually, the blood will warm the body, which should circumvent injuries
that could happen when tissue is suddenly subjected to oxygen after a period of deprivation. If
the procedure works, the patient's heart would resume beating when body temperature reaches
twenty nine to thirty two degrees Celsius. It may take several hours or several days to regain
consciousness.
8. This technique for a few was too extreme but a large part of the world accepted the fact that
should the doctors of the world be able to achieve a high survival rate in trauma patients, they
ought to take such extreme steps. With this general consensus, the hypothermia technique was
listed in various medical journals around the world.
9. Ombudstan is one of the fastest growing economies of the modern world. Once considered to
be a third world, underdeveloped and stagnant nation, the image of the country is now changing
with economic growth at an impressive and rapid pace. This economic growth is being driven by
the expansion of services in certain areas that has grown consistently faster than most other
sectors. Though primarily considered as an agrarian country, Ombudstan has made rigorous
strides in the fields of science and technology.
10. Ranked penultimate in producing engineers and doctors all over the world, Ombudstan, in
spite of its appreciative statistics did not emerge entirely out of its third world image. With each
passing day, the Government showed an inclination towards the implementation of large scale
technological based systems, replacing the colonial systems. A science for all ideology was
9
announced on the 64th Republic day of the country. The Prime Minister of Ombudstan in his
address to the nation emphasized the need to embrace the power of science and technology to
achieve substantial growth targets.
11. The Prime Minister, Mr. Robert Baratheon stated, The country will have to proceed
forward on a technologically navigated path. For generations, we have been oppressed under the
burden of being a third world country. The people of Ombudstan, especially the youth has
strived hard to change this image. We are in a position, wherein we need not be dependent on the
ardent West for our technological advancements. In the twenty first century, Ombudstan has the
potential to evolve and grow on its own and embrace science in such a way that we never have
ever in our history. On this occasion I give this nation a new motto, All for science and science
for all.
13. Standing by this commitment to the nation, the Government of Ombudstan started funding
and implementing high technologically oriented projects in almost every field imaginable.
Foresight was made the new mantra. The main advancements and focus were in the fields of
medical sciences, education, pharmacy and Information-Technology sector. The Government
and the entire bureaucratic hierarchy were convinced that these four main areas had to be
overhauled from inside out for the country to be modernized and to provide a better standard of
living to the citizens. 14. Sustainable support of the Government and a focused vision on public
health, rapid advancements were made in the field of pharmacy and medical sciences. Doctors
and biomedical researchers working in tandem contrived newer methods for the treatment which
could save lives and cause lesser collateral. Advanced form of medicines and medical treatments
were devised upon and implemented in various parts of the country, which in turn would
gradually expand and be implemented on a national scale.
15. To achieve irrefutable results, detailed schedules and tests were planned. Experiments had to
be carried out so schematically that all by-products obtained had to be either inert or harmless.
These tests were first carried upon certain kinds of animals, before they were actually
implemented on humans to ensure a hundred percent success rate. The result of such precision
and dedication was that common masses were getting an improved form of medical awareness,
10
evidently unheard off until almost a decade. 16. Though Ombudstan and its people had come a
long way from the third world environment and standards of living, the dark past still continued
to haunt its citizens. Therefore the scientific advancements were still a far cry when compared to
the developed nations and it was ranked embarrassingly, in the bottom half of the Human
Development Index in the world.
17. One such prudent problem was that of road safety and improper system of granting driving
licenses. Allegedly few driving eligibility tests carried out and at times none were conducted
before a valid driving license was issued. The resultant factor is that Ombudstan has the largest
number of deaths in road accidents. A global status report on road safety estimated more than 2,
31,000 people die in road mishaps and incidents, alone in Ombudstan every year. Approximately
half of the estimated deaths on the country's roads are among vulnerable road users
understandably motorcyclists, pedestrians and cyclists. A heterogeneous mixture of traffic of
over-speeding vehicles along with vulnerable road users and unsafe state of roads all contribute
to the alarming fatality rates witnessed on Ombudstans roads.
18. In one such incident, Mr. Nick Fury, the Union Minister for Road Transport and
Highways, got injured in an unfortunate car accident. The accident took place in BrijDeli, the
governing capital of Ombudstan. This accident sent shock waves of grief and agony throughout
the nation; many stated their utter dismay at the conditions of the road and road safety
management of the country. The minister, traveling in his official vehicle, met with a head-on
collision with a car that allegedly jumped a stop light, causing the accident.
19. Mr. Fury was rushed to the trauma center of Four Pills Medical Research Center and
Hospital, where the doctors concluded, that Mr. Fury was very critical, and didnt have much
time to survive. The prime reason given for this was his massive blood loss. Internal and external
injuries bleeding profusely hampered doctors and it reduced the crucial time and reduced the
chances of immediate response to save the patient. This is where the Medical Director of Four
Pills Hospital, Dr. Natasha Black, came up with a suggestion to call in Dr Tony Stark from
Turmerica. The Health Minister along with his team present at the hospital made for the
necessary arrangements in order to get Dr Stark to Ombudstan. He also initiated the process of
11
granting a temporary medical license to Dr Stark whereby he could then perform the necessary
medical procedures on Mr. Fury while also being under the purview of the laws of the land.
20. Dr Stark upon his arrival in BrijDeli, rushed to Four Pills to save Mr. Fury. It was decided
unanimously that Mr. Fury would be treated by the renowned Hypotensive Resuscitation Method
pioneered by Dr. Stark himself. Remarkably, after tedious efforts, Mr. Fury was successfully
stabilized and a positive prospect was envisioned. Dr Tony Stark became famous almost
overnight in Ombudstan with people terming him as the Doctor Wonder.
21. The Government of Ombudstan arranged for a felicitation function for Dr Tony Stark in his
honour, for having saved one of their high profile ministers. In this event, he took the
opportunity to speak and enlightened the elite doctors of his research in the field of hypothermia
and spontaneous trauma care. Dr. Stark elaborated on the point; how it was such a beneficial
technique and something which might become the future of trauma care. He also suggested it as
a remedy to the nuances of accidental deaths in the country. He also informed them that a
number of institutions have perfected the technique known as Emergency Preservation and
Resuscitation (EPR), based on Dr. Starks hypothermia methodology. These institutions
conducted experimental surgeries on hundreds of dogs and pigs have been conducted over the
last decade. Impressively, Ninety Percent of the animals have survived, most without discernible
cognitive impairment. These surgeries have even been performed on humans in extreme cases
where there were no other alternative but to use EPR. Interestingly, he mentioned, that the results
achieved were also significantly positive on humans. In a concluding remark he stated, Every
day at work I declare people dead. They have no signs of life, no heartbeat. I sign a piece of
paper knowing in my heart that they are not actually dead. I could, right then and there, suspend
them. But I have to put them in a body bag. It's frustrating to know there's a solution but not all
will apply it."
22. Intrigued by this unique solution to treat such accident victims, who, normally would not
have survived owing to their massive blood loss and the time taken to get them to the hospital
due to traffic and road conditions in the country, Dr. Bruce Banner, The Union Health Minister
instructed the directors of Four Pills and other top medical institutions to work upon this method
of treatment and the ways and means to implement it upon humans. A legal framework would be
created if this method proved to be a success. Dr. Black and her team worked hard towards the
12
implementation of the EPR method in humans. Forwarding a drafted proposal, Dr. Natasha
Black and her team met Dr. Bruce Banner and other officials of the Health Ministry and incepted
a proposal that would be forwarded to the OCMR (Ombudstan Council of Medical Research).
After a detailed analysis the proposal was accepted by the Reviewing Committee of the OCMR.
23. The main hurdle for the implementation of the said method was the consent of the victim,
who often would be bought to the hospital in a severe condition of trauma and unpredictable
state of consciousness. They would definitely be unable to either approve or disapprove such
drastic but opportune method. Since the induction of hypothermia method was still in its
experimental stage in Ombudstan unlike Turmerica where it was a standard applicable
procedure, the hospital and research team at Four Pills found it hard to move ahead without
proper consent obtained from the victim.
24. After much deliberation it was decided that the Health Ministry shall distribute
disapproval bands among the masses of BrijDeli, the base location from where this
revolutionary method was to be introduced. Any person who is wearing the band while he is
brought to the trauma center at Four Pills, shall indicate that he does not give consent to be
treated by the induction of hypothermia methodology, even if the resultant shall be having less
chances of survival than the proposed method.
25. The Health Ministry started distributing bands through All BrijDeli Chemists
Association. Free bands were available at all registered chemist. Large hoardings, banners and
posters were also put up at all public places around BrijDeli. A three month long comprehensive
peoples awareness program was taken up by the Government so that each individual was made
aware of the experiment and those who wished against being treated by the EPR method could
avail the band facility free of cost. With the end of the people awareness program the team of
doctors and researchers at Four Pills launched and declared the EPR treatment method.
26. It was decided that this method would only be conducted on victims who do not have the
band at the time they were bought to the hospital. Also, it was decided that only in extreme cases
where there is no other option left for the doctors, but to suspend the patient with hypothermia,
13
shall this method be applied. The data of the said experiment shall be reviewed at the end of six
months and a decision shall be taken on further continuance depending upon the success rate.
The trial shall test EPR patients and compare the results to patients treated by normal method
who were bought to the hospital in a similar condition and were wearing the disapproval
bands.
27. Mr. Schmidt, a citizen of Winterfell had travelled to Ombudstan for official purpose. He was
appointed as the Chief Technical Officer of Poka Pola Ombudstan, a subsidiary company of
the famous Poka Pola Ltd Turmerica, a Cold drink manufacturing company. Mr. Schmidt was
in charge of the new packaging machine being installed in the plant which was situated on the
outskirts of BrijDeli. While surveying the installation from the higher floors of the plant, Mr.
Schmidt climbed onto a perilous edge of the floor to investigate the same. In doing so, he slipped
and fell onto the scaffolding. He suffered a mild head injury but a sharp rod from the scaffolding
pierced his body.
28. He was rushed to Four Pills Hospital which was located about 30 minutes away. It took Mr.
Schmidt all of about 34 minutes to reach the trauma center which resulted in deteriorated
condition. Sensing the severity of the injuries sustained, the doctors decided to call upon Dr
Starks expertise. Unlike in the case of Mr. Fury, sensing the shortage of time, it was decided
that the surgery would be conducted by a remote robotic surgery, which was understandably a
standard practice in Ombudstan.
29. Arrangements were made where by the team of doctors at Four Pills. Hypothermia, which
by now had some research and the procedures and other methodology was listed in the medial
journal, was used to treat Mr. Schmidt, upon finding that there was no disapproval band on his
hand.
30. According to the standard norms of Remote Robotic surgery, another Head surgeon must
also take responsibility of the surgery in case of the occurrence of any unforeseen circumstances;
Dr. Black taking the reins commenced the surgery. In about fifteen minutes of Mr. Schmidt
being suspended, the robotic hypothermia was started upon him. It was found that the rod had
entered the frontal lobe of the lung causing pulmonary damage and had resulted into large cavity,
thus puncturing it.
14
31. On completion of the operation, the doctors began the blood infusion process to revive the
patient. The patients heart did not start beating upon infusing the blood back into the system.
CPR was given upon which the patient started reviving gradually. The patient although having
slightly lower pulse rate, had survived the process and thereby was shifted to the ICCU section
of Four Pills to treat him into further recovery and to monitor his vitals.
32. Mrs. Schmidt flew down to Ombudstan, on receiving the news, while Mr. Schmidt was
recovering. On the fifth day post the surgery, suddenly his blood pressure shot up alarmingly.
The doctors rushed to him and tried to stabilize him. To everyones shock, he died within
seconds of the doctors arrival. On investigation of the cause of death, a shocking revelation
came to light, it was discovered that a particular part of the heart had never recovered post the
freezing process of the EPR. The heart though had revived was not functioning optimally. This
part suffered a terminal thermal injury and gradually became brittle. This resulted in
deterioration and the heart was punctured brutally killing him. 33. Ms. Pepper Pots, Mr.
Schmidts niece, a paramedic by profession, studied Mr. Schmidts reports and other documents
handed over to the family along with the body to understand the cause of death and the
procedure followed to treat him. She found that Mr. Schmidt was treated by an experimental
method where he was put to a clinically dead state before his actual death. She concluded that
was a gross violation of the human rights and procedural negligence on part of the doctors at
Four Pills.
34. The Schmidt family then approached the HRO (Human Rights Commission Ombudstan).
With the help of the HRO Mrs. Schmidt approached a group of medical experts who
corroborated with Pepper, on establishment of medical negligence on part of the doctors at Four
Pills and that the ERP methodology of treatment was indeed a violation of Human Rights.
35. Mrs. Schmidt has filed a PIL in the Honble Supreme Court of Ombudstan, praying to ban
the said experimental method of treating casualty victims on grounds that it is against human
rights and also demand compensation for the death of Mr. Schmidt from Four Pills hospital.
36. The Human Rights Commission, understandably, has joined the Government of Ombudstan
as a party to the suit for their involvement, relentless and cavalier attitude towards humanity.
15
STATEMENT OF ISSUES
1. WHETHER THE PUBLIC INTEREST LITIGATION PREFERRED BY THE

PETITIONER IS MAINTAINABLE?
2. WHETHER THE EPR PROCEDURE PROMOTED AND ENDORSSED BY THE

STATE OF OMBUDSTAN IS VIOLATIVE OF HUMAN RIGHTS?
3. WHETHER THE RESPONDENT COULD PERFORM THE OPERATION

WITHOUT THE CONSENTOF MR SCHMIDT?
4. WHETHER THE RESPONDENT WAS NEGLIGENT IN PERFORMING THE

OPERATION WHICH IN EITHER CASE WAS DONE WITHOUT OBTAINING
THE CONSENT OF MR. SCHMIDTH?
5. WHETHER
THE
PETITIONER
HAS
VALID
CLAIM
FOR
COMPENSATION?
16
SUMMARY OF ARGUMENTS
1.WHETHER THE PUBLIC INTEREST LITIGATION PREFERRED BY THE

The PIL filed by Mrs. Schmidt and the Human Rights Commission stands maintainable as a
PIL under Article 32 of the Constitution can be filed for the for a purpose of public interest
by any spirited person. The right to proper medical treatment and care comes under the ambit of
the Article 21 of the Constitution. The Human Rights Commission who is party to this PIL is
an ambit of the government which seeks to protect the human rights of the people. Thus as a
violation of Human Rights has taken place, and Article 21 has also been violated, the PIL is
maintainable in the Honble Supreme Court of Ombudstan.
2. WHETHER THE EPR PROCEDURE PROMOTED AND ENDORSSED BY THE
STATE OF OMBUDSTAN IS VIOLATIVE OF HUMAN RIGHTS?
The method used on Mr.Schmidt was against the Human Right. The right to health infers that
every individual has to have access to the highest attainable medical care and treatment available
and proper food, care, shelter and a clean environment. It also includes the availability of
hospitals and medicinal care whenever needed. The public health comes under the Directive
Principles of State Policy. The state has violated the Directive Principles of State Policy as they
have applied an experimental method on a patient without the consent of the patient or any other
who is permissible to give consent on behalf of the patient. This is an inhuman act and therefore
it is very evident that the human rights have clearly been violated.
3. WHETHER THE RESPONDENT COULD PERFORM THE OPERATION WITHOUT
THE CONSENTOF MR SCHMIDT?
The common law has recognized the principle that every person has the right to protect his
Consent is a key element to any treatment. The state has even put additional liability on the
people not consenting to the operation to wear bands. This is in violation of Article 14 of the
Constitution and lack of consent has enforced that the respondents have been negligent.
17

OPERATION WHICH IN EITHER CASE WAS DONE WITHOUT OBTAINING
THE CONSENT OF MR. SCHMIDTH?
Negligence is the breach of a duty caused by the omission to do something or doing something
which a prudent and reasonable man would not do. The respondent was negligent in performing
the operation on Mr.Schmidt. This experimental method was used on Mr. Schmidt, using him in
fact, as a test subject. This violates Article 21 of the constitution of India as it intrudes into the
personal liberty of Mr. Schmidt. Furthermore the doctors at the hospital failed to spot that after
the surgery a part of the heart had not started functioning at all. The use of CPR
caused a
thermal injury causing the heart to get brittle and ultimately lead to the untimely death of Mr.
Schmidt.
5. WHETHER THE PETITIONER HAS A VALID FOR COMPENSATION?
The petitioner is entitled to compensation as she has suffered immense mental anguish.
Compensation can be given based on the multiplier method which is the proper and best method
for compensation as there is uniformity and consistency in decisions. The petitioners should
therefore be awarded compensation based on the multiplier method as the multiplier method
used for the calculation of compensation to the Petitioner leads to consistency and avoids
arbitrariness.
18
ARGUMENTS ADVANCED
1.
WHETHER THE PUBLIC INTEREST LITIGATION RAISED BY THE
A.
NATURE, SCOPE AND EXTENT OF A PIL
In Indian law, public interest litigation means litigation for the protection of the public interest.
1
It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or
by any other private party. It is not necessary, for the exercise of the courts jurisdiction, that the
person who is the victim of the violation of his or her right should personally approach the
court. Public interest litigation is the power given to the public by courts through judicial
activism. PIL is not in the nature of adversary litigation but it is a challenge and an opportunity
to the Government and its officers to make basic human rights meaningful to the deprived and
vulnerable sections of the community and to assure them social and economic justice which is
the significant tune of our Constitution. 2 The right to proper medical treatment and care comes
under the ambit of Article 21 of the Constitution.3 Thus, contesting that the EPR method used
was experimental and the treatment provided was contrary to Article 21. It is humbly submitted
that the PIL filed by Mrs. Schmidt and the Human Rights Organization is maintainable under
Article 32 of the Constitution4. A PIL is litigation introduced in a court of law, not only by the
aggrieved party but by the court itself or by any other private party. It is not necessary that the
person who is the victim of the violation of his or her right should personally approach the
court.5 The court permits Public Interest Litigation or Social Interest Litigation at the instance of
Public spirited citizens" for the enforcement of constitutional & legal rights of any person or
group of persons who because of their socially or economically disadvantaged position are
unable to approach court for relief. Public interest litigation is a part of the process of participate
S.F. Gupta and others vs. Union of India, AIR 1982 SC 149
AIR 1984 SC 802
3
Suo Moto v. State of Gujarat 2012 (2) GLR 1178
4
M.P Jain, Indian Constitutional Law (Lexis Nexis Butterworths Wadhwa,Nagpur,2012)
5
Article on Public Interest Litigation, India, available at:
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0bb4201b77a8bd&txtsearch=Subject:%20Jurisprudence (Visited on September 5,2014)
2
19
justice and standing in civil litigation of that pattern must have liberal reception at the judicial
door steps.6
B) PARTYS TO THE PIL FILED
There has been no embargo placed by the Honble Supreme Court as to an individual filing a PIL
as long as it is in the interests of the general public. Mrs. Schmidt has filed this PIL after
collaborating with the Human Rights Commission of Ombudstan. The Human Rights
Commission is an ambit of the Government that seeks to protect and promote human rights in the
country.7 The mandate of the Human Rights Commission is the recognition of the inherent
dignity and of the equal and inalienable rights of all members of the human family.8 Under
Article 3 of this mandate, comes the right to life, liberty and security of person. Article 7 states
that All are equal before the law and are entitled without any discrimination to equal protection
of the law. All are entitled to equal protection against any discrimination in violation of this
Declaration and against any incitement to such discrimination.9 The Human Rights commission
on the request of the Mrs. Schmidt, joined hand with her and set up a panel of medical experts,
who came to a conclusion and firmly established that there was gross negligence by the
Respondent hospital and that the use of the EPR methodology was indeed a violation to the
Human Rights of an individual granted by the Constitution under Part III as well as the United
Nations Declaration of Human Rights that Ombudstan was a party of. To file a PIL before a
court one need not be a direct victim of violation of any law or right thereunder. Where matters
of greater good are concerned the rule of locus standi has been relaxed and a person acting bona
fide and having sufficient interest may approach the court to raise his voice against violation of
fundamental rights and genuine defiance of laws.10 Here, to ensure that no one else suffers the
way her husband did, Mrs. Schmidt, keeping the common good of the people of Ombudstan in
mind, has filed the PIL. Thus, she does have the Locus Standi to file the PIL under Article 32 of
the Constitution 11in the Honble Supreme Court of Ombudstan
6
Peoples Union for Democratic Rights v. Union of India (AIR 1982 S C 1473)
Information on National Human Rights Commission India, available at : http://nhrc.nic.in/ (Visited on September
5, 2014)
8
Article on United Nations Declaration on Human Rights, available at :
http://nhrc.nic.in/documents/UDHR_Eng.pdf (Visited on September 5, 2014)
9
Supra Note 2
10
Information on Public Interest Litigation in India, available at:
http://www.maheshwariandco.com/repository/articles/downloads/public_Interest_Litigation.pdf (Visited on
September 5,2014)
11
Supra note 1
7
20
C) THE PURPOSE OF THE PIL WAS PUBLIC GOOD

The PIL was filed by Mrs. Schmidt and the Human Rights Organization. Even though Mrs.
Schmidt is the aggrieved party as the court rightly said that observing that when the issue is of
public importance, the court will examine the same and decide on its merit, even if there is some
element of private interest involved.12 The court in several instances has held that it is the duty to
see whose cause the petitioner is promoting whilst filing the PIL, whos fundamental or other
rights have been violated and who is to be relieved for the injury caused. This is the true test of
the maintainability of the PIL. 13 Upon collaboration with the Human Rights Organization, it was
found that along with medical negligence there was also a violation of Human Rights14 that were
guaranteed to all citizens as under Part III of the Constitution.15
The petitioner humbly submits that he has approached the Honble Supreme Court of Ombudstan
with clean hands.
2.
WHETHER THE PROCEDURE PERFORMED ON MR. SCHMIDT WAS
AGAINST HUMAN RIGHTS?
The petitioner humbly submits that the procedure of Emergency Preservation and
Resuscitation (EPR) performed on Mr. Schmidt was against Human Rights.
A)
RIGHT TO HEALTH AS A HUMAN RIGHT
Human rights are those rights that are inherent to every human being. The state being welfare
state welfare, strives to protect these right by embedding them in the constitution under Part III
as fundamental rights. One of such right is that of Article 21 which guarantees right to live and
personal liberty. The human right to health means that everyone has the right to the highest
attainable standard of physical and mental health, which includes access to all medical services,
12
New Kattalai Canal and Aerie Pasana Vivasayigal Welfare Association, K Santhanoor V. Union of India (2012) 1
MLJ 207
13
J.S Bindra v. State of Gujarat 2012 (2) GLR 1156
14
References to Para 34,36 of facts
15
Supra Note 4
21
sanitation, adequate food, decent housing, healthy working conditions, and a clean
environment.16It guarantees a system of health protection for all. Everyone has the right to the
health care they need, and to living conditions that enable us to be healthy, such as adequate
food, housing, and a healthy environment. Thus, Health care must be provided as a public good
for all, financed publicly and equitably.17It also means that hospitals, clinics, medicines, and
doctors services must be accessible, available, acceptable, and of good quality for everyone, on
an equitable basis, where and when needed. 18
B) VIOLATION OF HUMAN RIGHT OF MEDICAL CARE
Instead of the humane and appropriate health care expected, patients and health providers in
many settings encounter a variety of abuses that affront basic human dignity and jeopardize
health outcomes. These abuses range from pervasive violations of patients rights to informed
consent, confidentiality, privacy, and non-discrimination to more egregious abuses, including
torture and cruel, inhuman, and degrading treatment. Health providers likewise may face abuses
such as unsafe working conditions, sanctions for providing evidence-based health care, limits on
their freedom of association, and denial of due process when patients make complaints against
them.19
C) DIRECTIVE PRINCIPLES OF STATE POLICY WHICH IMPOSES DUTY ON
THE STATE TO PROVIDE HEALTH CARE
The Constitution provides a framework for a welfare/socialist pattern of development. While
civil and political rights are enshrined as Fundamental Rights that are justiciable, social and
economic rights like health, education, livelihoods etc. are provided for as Directive Principles
for the State and hence not justiciable. The latter comes under the domain of planned
development, which the State steers through the Five Year Plans and other development policy
16
Facts on Human Rights in India, available at: http://www.ohchr.org/Documents/Publications/Factsheet31.pdf

17
Facts on Medical Care and the State, available at: http://www.who.int/mediacentre/factsheets/fs323/en/
18
Relationship between human rights and health care, available at: http://www.nesri.org/programs/what-is-thehuman-right-to-health-and-health-care (Visited on September 6,2014)
19
Human rights in patient care: A theoretical and practical framework by Jonathan Cohen and Tamar Ezer Health
and Human Rights 2013, 15/2
22
initiatives. The formulation of Indias Constitution was certainly influenced by the Universal
Declaration of Human Rights (UDHR) and the country Ombudstan was a party to this. This is
reflected in the Fundamental Rights and the Directive Principles of State Policy. Most of the civil
and political rights are guaranteed under the Indian Constitution as Fundamental Rights 20
D) THE EPR METHOD WAS DISTINCT FROM THE HYPOTHERMIA METHOD
In his quest for the Holy Grail in ultra-modern trauma care techniques and the grit to stay one
step ahead of death, Dr. Stark invented potential method called Hypothermia Method. A large
part of the world accepted the fact that should the doctors of the world be able to achieve a high
survival rate in trauma patients, they ought to take such extreme steps. With this general
consensus, the hypothermia technique was listed in various medical journals around the world.
The Emergency Preservation and Resuscitation (EPR), was based on Dr. Starks hypothermia
methodology. Many institutions conducted experimental surgeries on hundreds of dogs and pigs
have been conducted over the last decade. Impressively, Ninety Percent of the animals have
survived, most without discernible cognitive impairment. These surgeries have even been
performed on humans in extreme cases where there were no other alternative but to use EPR.
EPR was still under the experimental stages in Ombudstan.
Also, it was decided that only in extreme cases where there is no other option left for the
doctors, but to suspend the patient with hypothermia, EPR method be applied. The data of the
said experiment shall be reviewed at the end of six months and a decision shall be taken on
further continuance depending upon the success rate. The trial shall test EPR patients and
compare the results to patients treated by normal method who were bought to the hospital in a
similar condition and were wearing the disapproval bands. This clearly shows that EPR was
still under trial and experimentation. It was not an established practice like that of the HRM.
20
Editors Adv. Mihir Desai & Adv. Kamayani Bali Mahabal, Health Care Case Law in India (Centre for Enquiry
into Health and Allied Themes,Delhi,2007)
23
E) DISAPPROVAL BANDS IMPOSED AN ADDITIONAL LIABILITY
It was decided that this method would only be conducted on victims who do not have the band at
the time they were bought to the hospital. By distributing the disapproval bands Government of
Ombudstan is putting an obligation on people residing in Ombudstan to wear a band for not
having being performed the surgery of EPR. This is an additional liability that the state has put
on those who would not like to be constrained by a band. Instead, the policy should have strived
to put a band on those who wanted the operation which would have made the method more
effective.
By putting this obligation Government of Ombudstan is violating the Right of
Freedom which is enshrined in the Article 14 of The Constitution21 of the Country.
F) THE EPR METHOD ITSELF WAS PERFORMED NEGLIGENTLY
The ERM procedure puts the person in a clinically dead position and relies on the risk that the
patient will recover gradually and his heart will resume beating when body temperature reaches
twenty nine to thirty two degrees Celsius. It may take several hours or several days to regain
consciousness which is a human right violation because it is an risk that the patients heart will
resume beating .In addition to this gross risk, the respondent hospital did not even wait for till the
body temperature to reach twenty nine to thirty two degree Celsius and instead, immediately
gave CPR. This deviated from the normal method in which the EPR method was conducted. The
respondent doctors have tried to perform this experimental method, without the consent of Mr.
Schmidt, and have taken unnecessary additional risks as well. They are most certainly negligent.
It is humbly submitted to the Honble Supreme Court of Ombudstan that on the above mentioned
grounds, it is well established that the said procedure is in violation Human Rights and Right to
life (Article 21)22 and shall be banned for further use.
21
22
Supra note 4
Supra note 4
24
3. WHETHER THE RESPONDENT WAS JUSTIFIED IN PERFORMING THE

OPERATION WITHOUT THE CONSENTOF MR SCHMIDT?
A) CONSENT WAS NOT ESTALISHED

Consent is an essential ingredient for the validity off the act. Two persons have said to have
consented when they agree on the same thing in the same sense.23The common law has long
recognized the principle that every person has the right to have his bodily integrity protected
against invasion by others.
24
The legal consequences of an unauthorized invasion of bodily
integrity include civil actions for damages.25 Ombudstan is a country that has been making
strides in the fields of science and technology. The ERP method was an experimental method
that was still in the stages of being perfected. The consent of the patient or a person acting on
behalf of the patient is essential when the method used is an experiment. Consent is the heart and
soul of any procedure, to completely ignore and assume this element is a gross violation of the
practice of medicine in itself.26
B) CONSENT IS ESSENTIAL FOR METHODS WHICH ARE AN EXPIREMENT
The respondent was using the patient as a subject to experiment the EPR method. The question
here is that the time of an emergency if an experimental method can be used when alternative
methods are available. The EPR method used is based on the well-established method of HRM
and on the advice of the renowned Dr. Tony Stark. Yet, it has been clearly stated that Dr Natasha
Black and her team were trying hard to work out a way in which this EPR method could be used
on humans. This quite clearly signifies that this method was in fact in its experimental stages and
was being used as convenience rather than necessity. This experimental method was used as
convenience, as this would give the Respondents a chance to experiment further by using a
human form in adverse conditions. Consent is essential for any method that is used as a
convenience and not a necessity.27 In several cases, the court has ruled that any method that has
to be given as treatment to an individual, without his consent, has to be absolutely essential to
23
Section 13 of The Indian Contract Act(1982)

YF v Turkey (2004) EHRR 34
25
R v Healy (2003) 2 Cr App R (S) 87
26
K.Kannan, Medicine and Law (Oxford Universal Press,1st Edition 2014)
27
Craig v Glasgow Victoria and Leverndale Hospitals Bord of Management (22 March 1974, unreported)
24
25
save hi/ her life. A doctor is justified in proceeding with a method that is absolutely necessary to
save a patients life without his consent.28 Thus, consent was essential to perform the EPR
treatment, which the respondents did not seek to have and thus violated Mr. Schmidts bodily
integrity and his Right to life under Article 21.29

OPERATION WHICH IN EITHER CASE WAS DONE WITHOUT OBTAINING THE
CONSENT OF MR. SCHMIDTH
It is humbly submitted that the respondent is most certainly liable for the tort of negligence for
the performance of the negligent surgery that took place on Mr. Schmidt.
A)
NATURE AND EXTENT OF TORT LAW
The word tort is derived from the Latin word Tortem which means to twist and thus, implies
conduct that is twisted or tortious.30To provide a workable definition in general terms, a tort may
be defined as a civil wrong independent of contract for which the appropriate remedy is an action
for un-liquidated damages.31 The law of torts as administered in India in modern times is the
English law as found suitable to Indian conditions and as modified by the Acts of the Indian
Legislature.32Tort law proceedings are generally Civil in Nature.33 The principle aim of the law
of torts is compensation of victims or their dependents.34 It has been held by the Honble
Supreme Court of India and by various other courts many a times that Section 9 of the Code of
Civil Procedure, which enables a Civil Court to try all suits of a civil nature, impliedly confers
jurisdiction to apply the law of Torts as principles of Justice, Equity and Good Conscience.35
28
Jonathan Herring ,Medical Law and Ethics 252 (Oxford University Press, 2nd Edition, 2012 )
Supra note 4
30
Ratanlal and Dheerajlal,Law of Torts4 (26th Edition Reprint 2012)
31
Jay Laxmi Salt Works v. State of Gujarat (1994) 3 JT 492
32
Priyananth Sen, Hindu Jurisprudenc 336; Ramaswamy Iyers Law of Torts (7th edition, 1975)
33
Union Carbide Corporation v. Union of India, 1988 MPLJ 540
34
35
Supra note 14
29
26
B) THE RESPONDENT WAS NEGLIGENT UNDER TORT LAW
Negligence is the breach of a duty caused by the omission to do something or doing something
which a prudent and reasonable man would not do.36 Actionable negligence consists when a duty
of care owed to someone, but due to neglect, the other suffers a legal injury. 37 There are two
kinds of Negligence, one which is Civil and the other which is criminal. In the case of Jacob
Mathew v. State of Punjab38 the Honble Supreme Court pointed out the difference between
criminal negligence and civil negligence. For negligence to be criminal there must exist mens
rea and the negligence must be gross negligence. Thus there are certain essentials that must
exist for an act or omission to be called negligent. These essentials, if fulfilled, then the action is
said to be negligent. 1) A legal duty to exercise care. In this case, the doctors of Four Pills
Hospital had a legal duty to exercise complete care whilst performing the surgery on Mr.
Schmidt. 2) Breach of the said Duty. The doctors of Four Pills Hospital breached their legal duty
to exercise complete care. Mr. Schmidt passed away due to a thermal injury to the heart. The
thermal injury was most likely caused when the CPR was performed as the temperature of the
CPR was set more than the permissible level. Thus, the doctors breached their legal duty. 3)
Consequential Damage.
39
Damage is a necessary ingredient for a tort.40 But as damage may
occur before it is discovered, it is the occurrence of damage that is the starting point of the cause
of action.41The fact that injury was caused to Mr. Schmidt and as a resultant he passed away, is
the damage in this case.
36

Supra note 12
38
(2005) 6 SCC 1
39
Poonam Verma v. Ashwin Patel, (AIR 1996 SC 2111)
40
Cartlege V. E Jopling & Sons Ltd. (1963) 1 All ER 341
41
Kishorilal v. Chairman Employees State Insurance Corp. (2007) 4 SCC 579
37
27
C)
i)
THE RESPONDENTS WERE LIABLE FOR MEDICAL NEGLIGENCE
REASONABLE DEGREE OF CARE
Every person who enters into a learned profession undertakes to bring to the exercise of it a
reasonable degree of care and skill.it is required of him, that he exercises a reasonable level of
care and skill. A doctor who renders medical help or services to a person will owe a duty of
care to the patient.42 The respondents have clearly failed to execute a reasonable level of care.
Once a patient has been accepted for treatment, a duty of care will arise. 43 It is unfortunate
that the principle of Duty of Care 44 has been violated in this case thoroughly. The respondent
hospital neither got the consent of Mr. Schmidt or a bonafide person to perform the
experimental surgery on him, nor did they take the necessary precautions to perform CPR
which caused thermal injury, following which the heart became brittle and ultimately lead to
death. There needs to be a level of the care given to the patient.
ii)
STANDARD OF CARE/DUTY OF CARE
The standard of care taken by the respondents was far beyond the established level. There
have been numerous occasions when the respondents have failed to maintain the standard of
care required. No matter what the Hospital or doctor does, even if a single occasion occurs
where he fell below the required standard of care, he will be held liable. 45 The law does not at
any time expect a professional man to be a paragon, combining polymath and prophet, but does
expect that a reasonable standard of care be exercised.46 The respondents claim to have followed
a standard practice but following a common practice is only evidence, it is not conclusive that
there has been no negligence.47 Once a patient has been accepted for treatment, a duty of care
will arise.48 Of course, the damage caused in this case by the respondents was the early demise
42
Capital and Counties v. Hampshire County Council (1997) Q.B 1004 at 1035
44
Donoghue V Stevenson (1932) A.C 362
45
Wilsher v Essex Area Hospital Authority (1987) Q.B 730
46
Eckersely v Binnie &Partners (1988) 18 Con. L.R. 1 at 80
47
Lloyds Bank Ltd. v. E.B Savory & Co. (1933) A.C 201
48
43
28
of Mr. Schmidt. In Jacob Mathew v. State of Punjab 49and in Indian Medical Association v. V.P
Shantha,50 the Honble Apex Court had concluded that a professional may be held liable when
he did not exercise reasonable competence in a given case, the skill which he did not possess.
The EPR experiment was in its trial stages, this experimental method was used on Mr.
Schmidt, using him in fact, as a test subject. This violates Article 21 of the constitution of India
as it intrudes into the personal liberty and Right to Life of Mr. Schmidt.
D) ERRORS IN TREATMENT PROVIDED

i) FAILURE TO SPOT SOMETHING SERIOUS
It is humbly submitted that, the respondents clearly failed to diagnose the heart injury that Mr.
Schmidt suffered due to a thermal injury. The EPR technique was based on the HRM technique
that was known to provide relief to the heart. Thus, when Mr. Schmidt had trouble with his heart
after the surgery, the respondents should have realized that something was amiss and necessary
precautions should have been taken. Instead, they gave him CPR which caused a thermal injury
causing the heart to get brittle and ultimately lead to the untimely death of Mr. Schmidt. If the
patients conditions are so serious that the doctor ought to have realized that either further tests
were required and should have consulted a specialist who is capable of making the
diagnosis.51This was an obvious failure on the respondents part to spot something serious. The
but-for test52, which states that if the damage would not have occurred but-for the
respondents negligence then the negligence is a cause for the damage. Thus, applying this test, if
the respondents wouldnt have experimented on Mr. Schmidt by using the EPR method and if
they would have given him CPR in the right temperature, then Mr. Schmidt wouldnt have lost
his life. Hence, once again the respondents have been proved negligence.
49
(2005) 6 SCC 1
(1995) 6SCC 651
51
Barenet v Chealsea and Kensington Hospital Management Committee (1968) 1 All ER 1068
52
Supra note 48
50
29
iii)
FAILURE TO REVISE INITIAL DIAGNOSIS
A doctor must always keep the diagnosis under review as the treatment progresses and to keep an
open mind about the causes of the patients conditions if it does not respond to treatment. 53
Moreover, in making a differential diagnosis the doctor must take into account the high degrees
of risks that the patient might face and the consequences.54 Mr. Schmidt did not respond well to
the EPR treatment right from the start. Yet, the respondents did not bother to make another
diagnosis, or use another diagnosis to provide relief. Thus it is the result of the respondents
negligence that Mr. Schmidts medical condition had not improved or had deteriorated.
Accordingly Mr. Schmidt had been deprived of the opportunity of making a full or proper
recovery from the illness or injury for which he first sought treatment.
D) APPLICATION OF THE DOCTRINE OF Res Ipsa Loquitor
Res Ipsa Loquitor55 is, in essence, an evidential principle, which in certain instances allows the
court to draw an inference of negligence. The burden of proof remains with the claimant, but the
respondent must adduce evidence to rebut the interference of negligence, in order to avoid a
finding of liability.56 The happening of the injury sustained itself, may be considered the
evidence of negligence and that reasonable care has not been maintained, then the doctrine
comes into play.57 The fact of the accident itself may give rise to an interference of negligence by
the respondent which, in the absence of evidence in rebuttal, would be sufficient to impose
liability.58 In the case of Achutrao Haribhau Khodwa v. State of Maharashrta59 , the principle of
Res Ipsa Loquitor was used and it was laid down that If the initial burden of negligence is
discharged by the claimant, it would be for the respondent to substantiate the their defense that
no negligence had taken place and the burden is greater on the respondent concerned. Thus, the
petitioner also seeks the application of this doctrine to the present case.
53
Layden v. Cope ,(1984) 28 C.C.L.T 140, Alta QB

Mellor v Sheffield Teaching Hospitals NHS trust ,(2004) EWHC 780
55
Scott v London & St. Katherine Docks Co.,(1865) 3 H & C 596
56
Jones V Great Western Railwa Co., (1930) 47 T.L.R 39 at 45
57
Kapur v. Marshall ,(1978) 85 D.L.R (3d) 566 at 574, Ont HC
58
Roe V Minister of Health, (1954) 2 Q.B 66
59
AIR 1996 SC 2377
54
30
It is humbly submitted to the Honble Supreme Court of Ombudstan that on the above mentioned
grounds, it is well established that the respondents are liable for medical negligence and that the
doctrine of Res Ipsa Loquitor will apply.
5.
WHETHER THE PETITIONER IS DUE FOR COMPENSATION?
The petitioner Mrs. Schmidt, the wife of the Late Mr. Schmidt has demanded compensation for
the gross negligence that has taken place during the medical assistance provided to her husband.
Compensation, of course in no way can substitute the loss of a husband, but it would ensure that
the Petitioner lives the rest of her life, comfortably and is able to maintain the standard of life
that she has been living. When a death occurs, the loss accruing to the dependent must be taken
into account.60 Whilst fixing an amount of compensation, the damages have to be assessed
separately as pecuniary and special damages. Pecuniary damages are those which are actually
incurred and which are capable of being calculated in terms of money. Whereas, Special
Damages are those which are not capable of being assessed by mathematical calculations. They
may include damages for mental and physical shock, pain and suffering et cetra.61
A)
BASIS ON WHICH COMPENSATION IS TO BE GIVEN
The petitioner is entitled to pecuniary damages under the heads of loss of income for missed
work travel expenses from Winterfell to Ombudstan and legal expenses incurred etc. The
petitioner is also entitled to monetary relief by using the conventional methods of calculation,
under the heads of, emotional distress, pain and suffering and pain and suffering endured by
the deceased. The Honble Supreme Court laid down principles for the grant of compensation.
The grant of compensation involving a medical accident is within the realm of Law of Torts. It is
based on the principle of Restitution in Interregnum. The said principle provides that a person
entitled to damages, should, as nearly as possible get that sum of money which would put him in
the same position as he would have been if he had not sustained the wrong as held in the case of
Livingstone v. Rawyards Stone Co.62
60
Davis v. Powell Duffrya Associated Collieries Ltd.,AIR 1942 AC 601

R.D Hattangadi v. Pest Control India, AIR 1995 SC 755
62
AIR 1880 ASC 25
61
31
B)
USE OF THE MULTIPLIER METHOD FOR AWARDING COMPENSATION
The use of the multiplier method in this case would be ideal, which would enable the court to
bring about consistency in determining the loss of dependency especially in cases of death due to
negligence. The multiplier method is the proper and best method for compensation as there is
uniformity and consistency in decisions.63 The said view has been reaffirmed in several cases
thereafter such as Reshma Kumari v. Madan Mohan64, Lata Wadhwa v. State of Bihar
65
. Even
in the MCD v. Uphar Tragedy Victims Assn66 the multiplier method was used where the death of
59 people took place and 109 suffered injury. Therefore, it is humbly contented that the
multiplier method be used for the calculation of compensation to the Petitioner because it leads
to consistency and avoids arbitrariness.67
63
Sarla Verma v. DTC (2009) 6 SCC 121 : (2009) 2 SCC 770

(2013) 9 SCC 65
65
(2001) 8 SCC 197
66
(2011) 14 SCC 481
67
Balram Prasad vs Kunal Saha & Ors (2013) 6 SCC 385
64
32
PRAYER FOR RELIEF
THEREFORE, in light of the issues raised, arguments advanced, pleadings and authorities cited
it is most humbly and respectfully prayed before this that this Honble Court to adjudge that:
1. The EPR methodology used for trauma care is violative of Human Rights and ban the further
use of this methodology as an experiment on Human Beings.
2. Hold the respondents liable for medical negligence and the resultant death of Mr. Schmidt,
thereby awarding compensation to Mrs. Schmidt.
3. Pass any other order that this Honble Court may please for the benefit of society and the
citizens of Ombudstan, in the interest of Justice, Equity and Good Conscience.
Sd/
(Counsel for the Petitioner )
33

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IN THE HONBLE SUPREME COURT OF OMBUDSTAN

PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF OMBUDSTAN

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

Achutrao Haribhau Khodwa v. State of Maharashrta AIR 1996 SC 2377

Balram Prasad vs Kunal Saha & Ors (2013) 6 SCC 385

Barenet v Chealsea and Kensington Hospital Management Committee (1968) 1 All ER

Blyth v Birmingham Waterworks Co. (1856) 11 Ex 781

Cartlege V. E Jopling & Sons Ltd. (1963) 1 All ER 341

Davis v. Powell Duffrya Associated Collieries Ltd.,AIR 1942 AC 601

Donoghue V Stevenson (1932) A.C 362

Eckersely v Binnie &Partners (1988) 18 Con. L.R. 1 at 80

G. Williams, The Aims of Law of Torts 137 (1951)

Indian Medical Association v. V.P Shantha (1995) 6SCC 651

J.S Bindra v. State of Gujarat 2012 (2) GLR 1156

Jacob Mathew v. State of Punjab (2005) 6 SCC 1

Jay Laxmi Salt Works v. State of Gujarat (1994) 3 JT 492

Jones V Great Western Railwa Co., (1930) 47 T.L.R 39 at 45

Jones V Manchester Coorporation (1952) Q.B 852 at 867

Jones V Manchester Coorporation (1952) Q.B 852 at 867

Kapur v. Marshall ,(1978) 85 D.L.R (3d) 566 at 574, Ont HC

Kishorilal v. Chairman Employees State Insurance Corp. (2007) 4 SCC 579

Lata Wadhwa v. State of Bihar (2001) 8 SCC 197

Layden v. Cope ,(1984) 28 C.C.L.T 140, Alta QB

Livingstone v. Rawyards Stone Co AIR 1880 ASC 25

MEMORANDUM FOR THE PETITIONER

MCD v. Uphar Tragedy Victims Assn (2011) 14 SCC 481

Mellor v Sheffield Teaching Hospitals NHS trust ,(2004) EWHC 780

Poonam Verma v. Ashwin Patel, (AIR 1996 SC 2111)

R v Healy (2003) 2 Cr App R (S) 87

R.D Hattangadi v. Pest Control India, AIR 1995 SC 755

Reshma Kumari v. Madan Mohan (2013) 9 SCC 65

Roe V Minister of Health, (1954) 2 Q.B 66

Sarla Verma v. DTC (2009) 6 SCC 121 : (2009) 2 SCC 770

Scott v London & St. Katherine Docks Co.,(1865) 3 H & C 596

Suo Moto v. State of Gujarat 2012 (2) GLR 1178

Union Carbide Corporation v. Union of India, 1988 MPLJ 540

Wilsher v Essex Area Hospital Authority (1987) Q.B 730

YF v Turkey (2004) EHRR 34

Books And Articles Cited

http://nhrc.nic.in/documents/UDHR_Eng.pdf (Visited on September 5, 2014)

Blyth v Birmingham Waterworks Co. (1856) 11 Ex 781

MEMORANDUM FOR THE PETITIONER

http://www.ohchr.org/Documents/Publications/Factsheet31.pdf (Visited on September

http://www.who.int/mediacentre/factsheets/fs323/en/ (Visited on September 6,2014)

G. Williams, The Aims of Law of Torts 137 (1951)

Information on National Human Rights Commission India, available at :

K.Kannan, Medicine and Law (Oxford Universal Press,1st Edition 2014)

M.P Jain, Indian Constitutional Law (Lexis Nexis Butterworths Wadhwa,Nagpur,2012)

Ratanlal and Dheerajlal,Law of Torts4 (26th Edition Reprint 2012)

1. WHETHER THE PUBLIC INTEREST LITIGATION PREFERRED BY THE

2. WHETHER THE EPR PROCEDURE PROMOTED AND ENDORSSED BY THE

3. WHETHER THE RESPONDENT COULD PERFORM THE OPERATION

4. WHETHER THE RESPONDENT WAS NEGLIGENT IN PERFORMING THE

1.WHETHER THE PUBLIC INTEREST LITIGATION PREFERRED BY THE

4. WHETHER THE RESPONDENT WAS NEGLIGENT IN PERFORMING THE

WHETHER THE PUBLIC INTEREST LITIGATION RAISED BY THE

NATURE, SCOPE AND EXTENT OF A PIL

C) THE PURPOSE OF THE PIL WAS PUBLIC GOOD

WHETHER THE PROCEDURE PERFORMED ON MR. SCHMIDT WAS

AGAINST HUMAN RIGHTS?

RIGHT TO HEALTH AS A HUMAN RIGHT

B) VIOLATION OF HUMAN RIGHT OF MEDICAL CARE

Facts on Human Rights in India, available at: http://www.ohchr.org/Documents/Publications/Factsheet31.pdf