Need urgent help
Ankit
(Querist) 14 April 2012
This query is : Resolved
I have a Moot court Competition Regarding which I need Help. The facts of case are-
A lady underwent hysterectomy (surgical removal Of Uterus) in hospital. She was discharged upon by Dr. Jeevan10 days after the operation even though her medical condition was very bad and before the stitches were removed, she was discharged by Dr. Jeevan. The condition of lady further deteriorated. when she again went back to the hospital after a few days she was adviced to come after 2 months since Dr. Jeevan had gone abroad. having no other option, she sought treatment in another hospital where an operation was performed and it was discovered that half a meter of sponge has been left in her stomach during the hysterectomy. it was because of this that her condition had deteriorated and her intestines had developed gangrene and there was puss formation. to save her life, a part of her intestine was removed and she had to incur a great deal of pain as well as expenditure on her treatment. She filed suit for damages of rs 10 laks from the hospital and Dr. Jeevan
I am counsel for defendant,
What defenses can I take And In which court the case is to be filed Consumer court Or civil Court(In Tort For Negligence)
Please help and reply soon as possible
Adv.R.P.Chugh
(Expert) 14 April 2012
Dear Counsel for the defendant,
You are going to defend the indefensible.
The presumption of res ipsa loquitur (presumption of negligence) would be raised against you, and the plaintiff would be absolved of his initial burden of proof. Now the burden would lie on you to disprove negligence, which would be difficult in a case that so speaks for itself.
You can try to discredit the medical reports as attempt to malign orchestrated by competitors.
She was subsequently operated somewhere else.
Contributory Negligence on her part (All of them feeble arguments)
Ankit
(Querist) 14 April 2012
Thanku very much Adv. Bharat Chugh
Yes I have also thought of all these points. The main point which I want to know is that is it a consumer court case or a civil case falling under Law of Torts
V R SHROFF
(Expert) 14 April 2012
You are defendant. YOU HAVE NO CHOICE OF COURT . You asked "In which court the case is to be filed" You have to only defend wherever she call you. It depend on patient [complainant in CONSUMER FORUM or CRI ACTION, and if PLAINTIFF IN CIVIL SUIT)
Now that you stated" She filed suit for damages of rs 10 laks from the hospital and Dr. Jeevan " It only mean, CIVIL SUIT. [IN CONSUMER FORUM, IT IS A COMPLAINT, NOT SUIT]
You will get points of defense after her Chief Examination, i.e. Plaint+ Cl
Affidavit.
Who all are witnesses that there was abouts sponge?? Pre Opern Report or came to know after Operated?? you says it was discovered!! , so after 2nd Operation , So can be introduced?? No knowledge till she went to next hospital, & dr can be a competition, want to spoil reputation of your client. a def. So he introduced it.
As she never visit ur client after pain, it shows her negligence, or something that developed later.
Usually all operated are discharges before stitchery are removed, stitchery removed after few days , on drying wound, during her OPD period. WHEN SHE NEED REST IN HOME FOR HEALING, ..DURING THAT TIME, SHE MIGHT HAVE NOT TAKEN CARE.
HER MONTHLY EARNING OR LOSS DOES NOT JUSTIFY EVEN DAMAGES OF 2 LAKH.
Her demand of 10L clearly shows she pre planned, came only after Dr. went abroad, and created evidence in absence of your client to make money.
There were no sponges used at the time of operation, and the sponge do not belong to, nor we purchased any such sponges, but it is used at 2nd Hospital staff only , can get purchase / bill . There were 5 junior Dr, as witness, while she was operated, examined, and stitched. There are hundred successful cases in our hospital, and a foreign rtd Dr., takes all possible care for years. She in fact came not for treatment but for blackmail, of 15 L cash. My Hospital is 24x7 and many other Dr. Surgeons look after a well equipped hospital , and no one is denied treatment, just because Dr, went to foreign . which he goes often to sharpen his surgical skill.
prabhakar singh
(Expert) 15 April 2012
I refrain from answering moot court queries because of the experience had in past with brother experts.
