Legal Question in Medical Malpractice in India

Respected Sir/Miss,

I am a FY BLS student and it's my first moot court case,but I am a little confused because very less facts have been provided and those too are not in depth.Please guide me by tell me WHICH sections or article can i refer and from WHERE.We have the following problem-

Rajesh and Priya take their 7 yr old son Chintu to a renowned oncologist as he is suffering from leukemia.The oncologist draws a rosy picture about the success of (Stem Cell Therapy) HSCT in the US. The parents sign a consent form in which it is clearly stated that the effects of the therapy on Chintu will be told beforehand but it is'nt told.

One and a half month later Chintu passes away not due to cancer but due to Septicemia.The parents blame the doctor for negligence and file 2 cases;

1) Breach of contract (as they were not told the effect of the therapy.)

2)Medical Negligence.

In both the cases the doctor is not taken action against,so they go to the High Court of Mumbai and both separately file a complaint on the above,for convenience the High Court takes them together.These are the only facts given,the case above lacks the following and it has been told that we can assume a little!! When we should not assume in law !!!

the facts lacking would be:

1 type of leukemia (every type reacts differently after the HSCT.

2 After care of the patient and check up (which is supposed to be taken intensively for the first some weeks say 10 weeks or so,and over all for about an year)

MY SUPPOSITIONS

I feel that the there is something wrong with the way the doctor gives an example of the success of the therapy in the US but no information about it being performed in India,the success rate in the US is about 51.17 % and in India it is 50% which can't be called as a very good rate of success.

I also researched on septicemia and leukemia and also stem cell therapy and found out that if a person is suffering from septicemia or/and septic shock then its quite easy to detect because the person looks very ill,he either gets very high fever or he is below body tempreture,fatigue,vomiting,inflammation of the body,etc.with such syptoms it should have been easily detectable both by the doctors and also the parents,we could thus blame both parties saying that the doctor was somewhat negligent as he did not come to know about such a condition even after check ups,(that's if he did proper check ups on time,which has not been stated in the facts,not post surgery measures are talked of in the so called fact sheet) We could also say that it was the parents duty to inform the hospital or the doctor about these symptoms.Who can be blamed?Well both parties I think can be blamed,but the doctor is liable under the breach of contract for holding back the information regarding the affects of the treatment on the boy which were supposed to be informed beforehand.

Also one more thing i read frequently in my research so far was that special care for children under 10 yrs of age must be taken as they are more prone to get septicemia after this stem cell treatment,but then again is'nt one and a half month period too long for the septic to happen,or was it ignored and was the patient left to suffer by both parents and the doctor who should have know about the condition had he taken post surgery care and check ups,but again its not given in the fact sheet.

Hereby i would like to know which sections or articles of the Indian Constitution would apply for medical negligence as well as consumer rights and will misrepresentation be one of them? and which books can I refer,espcially for medical negligence?(although I don't think that the doctor will be punished).One more thing,could you please send me the FORMAT as in what is to be included in the making of a Memo.

yours faithfully

A.K.

(please excuse me for the grammatical mistakes or otherwise in the above,Im too used to typing in SMS language and short forms ,hope i have not used them in a hurry)

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