The National Level Moot Court Competition will be held on 24 th &\; 25th November\, 2017 and we cordially invite law students of dif ferent institutions all over India to participate in the competition.
\ n\nMOOT PROPOSITION
\nBrijesh aged about 30 years is a native of K
onnam district of State of Tivannur. Tivannur State which is a part of th
e Federal republic of Brasilia is primarily inhabited by Tribal communitie
s. Mr. Brijesh was suffering from severe pain while speaking and while ea
ting for nearly two months. Any amount of medicine administered by tradit
ional medicinal practitioner from his native area could not give him any
relief. On advice of one of his relatives\, working in Devam city- the cap
ital city of Tivannur State\, he approached to Tivannur State Institute o
f Medical Sciences (referred hereinafter as TIMS) a privatelyowned hospit
al and consulted to Dr. Y\, an ENT Specialist. On examination of patient a
nd after conducting several tests\, Mr. Brijesh was diagnosed with tonsil
s and was advised to undergo an operation called tonsillectomy. Estimated
expenditure for such surgery was Rs.1\,70\,000/- and the same was duly i
nformed to patient along with nature of problem he was suffering and the c
ourse of medical treatment. Despite various financial constraints\, Brije
sh arranged the said amount by raising a loan of Rs.1\,50\,000/- with int
erest rate of 6% Per Annum. It is pertinent to note that a team of doctors
of TIMS spelled certain unique and specialized methods for performing ce
rtain categories of surgery under question.
TIMS has kept th
ese novel surgical methods always a commercial secret by taking necessary
legal precautions. Tonsillectomy surgery which Mr. Brijesh was supposed t
o undergo was one such unique and novel surgical method invented by team
of doctors at TIMS which included Dr. Dayanand Mishra as Head of the Surg
ery Panel. The said surgical method involves novel tools and novel techniq
ue for performing surgery.
\nTIMS authorities brought the fact und
er notice of Mr. Brijesh and his relatives before performing the said sur
gery and in confidence explained steps involved in novel surgical method w
ith help of flowchart. It has been practicing of TIMS to reveal and expla
in unique and novel surgical method to patients and their relatives ever
since they invented surgery of tonsillectomy. So far\, in period of 10 yea
rs\, nearly 100 patients and their relatives were informed under confiden
ce about this unique and special surgical method.
\nBrijesh was oper
ated on 31st August 2013 at TIMS by Dr. Dayanand Mishra who took assistanc
e from one Anesthetist Dr. Raghavan. When Brijesh regained consciousness
after operation\, he felt heavy discomfort and found lower abdominal par
t of his body has paralyzed and further he could not move his legs and to
es any more. Feeling panicked by development\, his family members complain
ed to Dr. Dayanand Mishra and to the hospital General Administration. How
ever\, Doctor and concerned Hospital Authorities assured Brijesh
\nan
d his family that everything would be alright within a week. Since\, there
was no improvement\, Family of Brijesh took him to a nearby Government H
ospital and got him admitted there.
\nDoctors at Government Hospital
advised Brijesh to get full Case Sheet of treatment given at TIMS along w
ith diagnostic reports and case history declaring that they followed stand
ard procedure prescribed for conducting tonsillectomy and in taking care
of patient after surgery doctor observed all the necessary precautions.\nOn other hand\, Government hospital where Brijesh was undergoing tre
atment insisted on going through diagnostic reports and case sheet availa
ble with TIMS to decide as how to adopt further course of treatment.
\nIn spite of repeated requests by Brijesh and Family\, TIMS Administra
tion refused to part with medical records even though Brijesh has already
paid full amount estimated by hospital for his surgery.
\nMeanwhile\
, doctors at Government hospital conducted independent examination of Brij
esh and found\, after various tests\, that paralysis of lower parts of bo
dy was due to excess of anesthesia administered during surgery conduct by
doctors at TIMS. However\, after treating Brijesh for about six months\,
Government hospital advised him to get discharged
\nfrom Hospital in
forming him additionally that he cannot recover to normal life in near fut
ure. Mr. Brijesh who was in his youth and lone breadwinner of his family
became confined to wheel chair\, his family was forced to undue hardship\
, mental agony and irreparable loss due to medical negligence of doctors
at TIMS.
\nOn advice of some well-wishers\, Brijesh decided to sue Dr
. Dayanand Mishra\, other Panelists in his team of doctors and to TIMS ho
spital for seeking compensation and other incidental relief. For doing so\
, he claimed information relating to his diagnosis and treatment at TIMS.
He\, therefore\, filed an application under Right to Information Act\, 2
005 seeking copies of his medical records.
\nHe also sought other i
nformation relating to novel surgery by which he was operated upon along w
ith copy of flowchart containing steps involved in novel surgical method
and some specific details concerning device and technique.
\nTIMS re
fused to reveal information on ground that it was not a public authority\,
nor it had any obligation to disclose information under RTI Act. Feeling
aggrieved by such refusal\, Brijesh preferred an Appeal to State Informa
tion Commission contending that TIMS was a public authority as it had avai
led loan of Rs.1 crore from one public sector Bank for construction of ho
spital building.
\nIt was also contended by Brijesh that under prov
isions of Tivannur State Public Health Act it was made mandatory on part
of all hospitals in state to provide periodical reports to Director Genera
l Health (DGH) and therefore TIMS would fall under public authority under
RTI Act\, 2005.On other hand\, TIMS contended that by availing loan does
not make it public authority and further that an obligation to furnish per
iodical reports to DGH of State would not make it bound to give all medica
l reports to any patient.
\nAfter hearing both sides and going throu
gh provisions of RTI Act 2005\, The Evidence Act 1872\, Tivannur State Pu
blic Health Act\, 2001 and norms of medical ethics\, State Information Com
mission observed that TIMS falls under purview of public authority and ho
lding it a violation of his statutory rights\, awarded compensation of Rs
.1 Lakh.
\nFeeling aggrieved by decision of State Commission\, TIMS H
ospital has filed writ to the High Court U/A 226 of the Constitution of t
he Federal republic of Brasilia. The High Court has identified following
issues-----
\n(1) Whether the High Court has jurisdiction to deal wit
h this case under its writ jurisdiction and whether TIMS was public autho
rity under RTI Act since it is owned and managed fully by
\nprivate p
ersons?
\n(2) Whether information related to novel surgical method ca
n be denied to applicant on ground that it is exempted information under
RTI Act and consequently\, whether public interest out- weighs private in
terest in disclosure of such information?
\n(3) Whether denial of cop
y of flowchart is justified on ground of copyright exemption under RTI Ac
t\, 2005?
\n(4) Whether Brijesh has right to information and to acces
s to his own medical records held by TIMS Hospital and whether extraordin
ary Constitutional remedy by way of any appropriate writ can be provided
to petitioner?
\n(5) Whether State Commission has acceded its jurisdi
ction by acting in eagerness to help patient or in alternate\, whether th
e State Commission is an administrative body or adjudicatory body while d
eciding upon such matter?
\n(6) Whether Brijesh was rightly entitled
to relief of Rs.1 Lakh as compensation on ground of violation of his fund
amental rights for non-furnishing of the required information by TIMS
\nHospital?
\nPrepare memorials and argue for both sides.
\nNOT
E: All Statutes\, Rules and regulations of the Republic of Brasilia are in
pari materia and
\nsubstantively similar to the Republic of India.
URL:https://www.knowafest.com/national-moot-competition
END:VEVENT
END:VCALENDAR