Medical negligence and its Compensation
Medical negligence in
India has increased tremendously in the past few years. In recent times, the Indian Society is
experiencing a growing awareness regarding the patient’s rights. Since the
Consumer Protection Act, 1986, has come into force, patients are able to file
legal cases against doctors, by establishing that they were negligent in
providing medical service.
Negligence
is an act carelessly done by a person resulting in damages to the others.
Negligence is an offence under the law of tort, Indian Penal Code, Indian
Contracts Act, Consumer Protection Act (CPA), and so on. Medical negligence is
basically the misconduct by the medical practitioner by not providing services
and hence resulting in a breach of their duties towards patients.
Negligence
is the violation of a legal duty to care. Breach of this such duty gives the patient
the right to initiate action for injury caused due to negligence.
The rise in
Medical Negligence Litigation
Recently, a survey was
conducted by the National Law School of India University (NLSIU), Bengaluru
that stated numbers of reasons that contributed to the growth of medical
negligence litigation. According to the guest speaker present in the NLSIU, Sairam Bhat, associate
professor and coordinator, Distance education department, and CEERA, NLSIU,
Bengaluru, there are four major reasons for the growth of medical litigation
which primarily includes greater consumer awareness, the cost involved in
medical facilities, a lot more flexible consumer forums, and the mind-set
regarding litigation among the population.
Bhat further mentioned, consumers
are becoming increasingly aware of their rights as well as their duties and
responsibilities and are ready to combat any deficiency in service delivery
mechanisms. With the introduction of consumer forums, it has become very
flexible for the consumers to lodge complaints and initiate legal proceedings.
This is a much simpler process then registering a complaint in a civil court.
There have been cases where the consumer has been seen fighting his own case, rather
than advocates.
As the cost of healthcare has
witnessed a huge jump, expectations from the medical institutions are grown too.
Medical negligence cases are filed for the smallest negligence in delivering
justice. Research studies suggest that cases of medical negligence have gone up
by 400% in the last decade.
Compensation- A remedy
There are different
kinds of remedies available to the victim of medical negligence which varies
depending on the structure of the case. In some cases, the victim’s family may
be awarded a huge amount of Compensation, and in some cases, the doctor is
given a warning or the license of the doctor is cancelled.
Talking about Compensation, it is one of the most common type of remedy
available to the patients when they complain regarding medical negligence in
the consumer forums. The punitive damages and limitless financial Compensation often
imposed for medical errors in developed countries may have some inherent flaws.
In India, however, healthcare is assumed to be regulated by a quasi-judicial
medical council that has failed to safeguard the patients against the
widespread negligent and irrational treatment by the doctors. Therefore, large
payouts awarded by the courts of law remains the only way to instill
accountability for wayward doctors and save lives. Compensation became a major
and hot topic in the country after the Supreme Court of India awarded more than
Rs.11 crores in damages including interest against several doctors and a
private hospital based in Kolkata for the wrongful death of the patient. This
has been the biggest payout in Indian Medico legal history. Till now, the
courts have generally been awarding Compensation ranging between INR 3,00,000-6,00,000,
and often less, which has failed to have any deterrent on affluent doctors and
hospitals.
Let
us first understand the Kunal Saha Case:
Kunal Saha Vs.
AMRI Case
This
complaint was filed by KunalSaha for his wife, AnuradhaSaha, who died at the
age of 36 due to the sheer negligence of doctors in Kolkata.
Itis
one of the most significant case law pertaining to medical negligence in
India.KunalSaha, a doctor by profession himself, filed a case against the
doctors of AMRI hospital in Kolkata. However, after his petition was dismissed
in Calcutta High Court and West Bengal Medical Council, he went to the Supreme
Court of India. After a proper investigation, the Supreme Court directed the
hospital and the doctors to pay a compensation of INR 5.94 crores along with
interest, i.e. INR 11 crores. This is the maximum amount that has been awarded
as Compensation for medical negligence.
For the grant of Compensation as a legal right,
which is a tort liability to be curbing in medical negligence, it should be
able to serve at least two purposes. Firstly, it must be calculated in such a
way that it provides adequate financial support for the victim’s family (Compensation)
to fill the irreversible vacuum created by the
wrongful death as best as possible. Secondly, perhaps most important, is that
the award must act as a brake against future negligent behaviour by other
doctors and hospitals.
Negligence
and Compensation to the Victim
The Supreme Court of India has recently relaxed the
norms for the medical faculty regarding criminal liability for medical
negligence with the help of adding the requirement of “gross” medical
negligence. However, the court has recognized the culpability of doctors
through the process of civil liability in which the victim or the family of the
victim is awarded higher compensations.
The emergence of high compensation awards for
medical deficiency claims in India has resulted in apprehensive speculation regarding
the result that such remedies may have on the manner in which doctors practise
medicine within India and how this process translates into rising costs for the
patients. While some assume a consequent rise in frivolous litigation, others
put forward the point that healthcare sector should be regulated with more
stringent laws and that huge amount compensations will push doctors to not be
negligent any more towards their patient. The way recent cases are being heard
and awarded huge compensations, there certainly lies the uncertainty of whether
this encourages the beginning of increasing medical negligence litigation and
the practise of defensive medicine, or there is the need to modify the way in
which medical negligence issues are currently being addressed in India.
Moreover, India’s healthcare system is accountable
for and regulate private which includes individual and corporate, public, and
not for profit hospitals within its framework. In addition to these, the Indian
government is also responsible to ensure universal and all time access of
healthcare to the general public through its public sector. It is therefore,
important for the judiciary to balance the interests, rights, and duties of all
the concerned parties.
The decision to take a legal action against a
medical practitioner is determined by not only the original injury, but also by
poor communication and insensitive handling after the original incident.
Therefore, the patient who alleges medical negligence can resort to any of the
following legal remedies.
a. A complaint can be made to the State Medical
Council.
b. The patient can file a case before the Consumer
Court.
c. A complaint can be filed before the Civil Court.
d. The patient who has alleged medical negligence can
file a case citing “gross” negligence of the medical practitioner.
Our article talks about the Compensation that can
be only avoided by the Consumer Court or by the Civil Court and therefore our
discussions shall stick to the same. This article mainly talks about the Compensation
awarded to the victim or kin of the victim when a medical negligent act takes
place. It further puts forward the points in favour of “larger compensations”
and also gives detailed analysis that why Compensation is yet a simpler and
easily given through which a victim can live a normal life. Collectively, the
article talks about how medical negligent issues are addressed in a country
which has the second highest population of the world and one of those
countries, which considers the medical faculty as one of the most prominent
role models.
Calculation
of Compensation in a Medical Negligent Case
In the Indian Common law, the basis of computing
compensation for any case lies on the legal principle of “restitutio in integrum,”
which when translated means, that the person who is seeking damages due to a
wrongful committed him/her is in the position that he/she would have been had
the wrong not been committed. This implies that the victim or the family of the
victim needs to be compensated for financial loss as well as other loss caused
by doctor’s or hospital’s negligence, future medical expenses, and any pain and
suffering that is endured by the victim.
The court of USA have a jury
system that determines culpability or quantum of Compensation, but
unfortunately, the same scenario doesn’t exist in our country. In India, the
judge in the civil court or the consumer court has the complete discretion over
the compensation amount and hence is bound or forced to consider the impact of
the judgment because he/she sets a precedent even in the manner and quantum of
damages awarded. The case laws like Dr. Balram Prasad vs. Kunal Saha and Rajesh
and Ors. Rajvir Singh V and Ors correctly speaks about how Compensation is
inconsistent and is one of the biggest problem that the healthcare sector of
India is facing. It is important to consider every case independently because
it would be incorrect to not give the facts of every case’s situation due
importance. However, this not only increases the unpredictability but also the
scope of discretion provided to the judge in such situations.
The Supreme Court noted
that, “The lack of uniformity and consistency in awarding Compensation has been
a matter of grave concern… If different tribunals calculate Compensation differently
on the same facts, the litigant, the claimant, the common man will be perplexed,
confused, and bewildered. If there is significant divergence and similarities among
tribunals in determining the quantum of Compensation on similar facts, it will
lead to distrust and dissatisfaction in the system.”
In most of the medico-legal
cases, the defendants have asserted that the method to determine the Compensation
ought to be the “multiplier method”. The main and principal argument in favour
of using such a method is it at least gives uniformity and predictability.
Furthermore, doctors and hospitals will not be compelled and order to pay large
sums of money to compensate for negligence.
Talking about the history of
the multiplier method, it was first created to facilitate awarding Compensation
in relation to motor vehicle accidents to calculate “no-fault” liability.
Therefore, it only stands for the loss of income of the victim only. The sum is
calculated according to the “multiplicand” that is, victim’s salary minus the
amount he spends on himself for the treatment, and the “multiplier”, that is,
the total number of years, that the victim would have earned his salary. The
multiplier is calculated by taking into account the average life expectancy, the
number of years that the victim will be unemployed, the victim’s age and any
other factors concerning the victim’s health. The common formula for the
calculation of Compensation is ((70-age) x annual income + 30% of for inflation
– 1/3 expenses). Defendants say that
this is the figure that will adequately calculate the loss incurred, and
therefore this method can be utilized for the calculation of medical negligence
cases. However, the argument here is
that, Compensation solely based on the income of the victim is not ethically
correct. It simply means that medical negligence causing death or injury to a wealthy
person is much more worth when compared to medical negligence that impacted an
unemployed individual or homemaker or a child or senior citizen. Therefore,
being legally unethical, the Supreme Court declined the dependency of
calculation of Compensation on the multiplier method for medical negligence. Addition
to these, the Supreme Court, added other dimensions for the calculation of Compensation
which included medical costs incurred by the victim during the litigation, cost
of any future medical expenses, Compensation towards mental agony and physical
pain, and Compensation toward loss of litigation and consortium.
Still, there are few
problems, that judges face while awarding Compensation in medical negligence
case which includes:
a. The law is required to protect a patient’s right.
b. The law is also responsible to provide due autonomy to a profession
that by all definitions are an inexact science.
However, the process of calculating Compensation for
medical negligence is very uncertain and unpredictable as it varies hugely
across different cases, courts and tribunals resulting in loss of faith on the
courts, protracted litigation and also the frequent appeals.
Argument
in favour of Compensation
A person who has suffered medical negligence has
the liberty to decide how they would like to address the problem. If it is the
accountability they seek, they can approach the state medical council. But if
the victim or the family of the victim is thinking of compensation, they can lodge a complaint
before the Civil or the Consumer Court. However, the Compensation is considered
an ideal remedy for medical negligence because it acts as retribution towards
the negligent medical faculty, insurance to the victim and as an example or
deterrent to other doctors and hospitals.
1.
Coverage of expenses of the Victim
Compensation as a legal remedy to the victim of
medical negligence provides with resources as they help to cover medical costs,
future medical expenses, cost of litigation, loss of income etc. only when they
prove that the doctor or hospital in the case was negligent. This arrangement
attempts to ensure that the victims are financially strong for allowing them to
bear the consequences of medical negligence, be it injury or wrongful death.
2.
Deterrence
Large compensation amounts penalizes the doctors
heavily. Therefore, there are chances that the doctors would be more careful as
one case could result in grave losses. Large Compensation which sometimes also
includes punitive damages will result in incentivizing allocation of resources
towards safety. Moreover, it acts an expression of the community’s indignation
toward an abhorrent crime and therefore also imposes a civil action against it.
Also, large Compensation could act as a civil enforcement mechanism because it
rewards the complainant for initiating litigation and thereby supplements the
criminal justice system.
3.
Retribution
The compensation amount that will be imposed by the
court for the doctors and hospitals will be based on the determination of the
liability and the judge’s discretion or direction regarding the same. This
further ensures that parties which are guilty of negligence are made to pay for
their actions.
The
Purpose of Medical Settlement
The reason for medical Compensation through medical
settlement is done to make the client whole again. It is intended to compensate
them for any medical and personal costs occurred due to the injury caused
during the process of treatment. In serious cases, the remedy includes
compensation to offset the cost of care for the person and lifetime of lost
earnings. In some cases, it might include the cost of modifying the client’s
home to let them continue to live there, medical assistance from already paid
caregivers or someone who quit a job to take care of them, and new vehicles
that the disabled person can drive.
There are also cases, where the compensation to the
victim or to the victim’s family is awarded only after the claimant is able to
gain back the mental function after a negligence case. In a type of case where
mental impairment is involved, there are chances that additional damages are
also claimed, to support the victim’s family. This also holds true when
childbirth injuries occur, or pregnant women suffer from negligence or mistakes
from doctors or medical staff or any other third party associated with the
healthcare facility.
Conclusion
There is a need to assess the way wherein India
decides to address medical negligence. Notwithstanding the dread of protective
medication, expanding protection premiums and ascend in costs for patients, it
is time we know about the inequity that the current framework sustains. Systemic deficiencies such
as heavy litigation costs, delayed and protracted litigation, as well as
dependence on judicial discretion, do not give adequate equity justice to
victims and could harm doctors and hospitals as well.
In a nation where there is (an) a horrifying
interest in wellbeing, (b) the nonappearance of Human Resources, (c) an
enormous hole among urban and rustic human services, and (d) poor political
will to improve the wellbeing segment, it is shrewd to actualize a no-deficiency
risk framework inside the general wellbeing area and furthermore to have tops
on the sorts remuneration after exploration and conversation. The
administration needs to act and put resources into medicinal services before it
is past the point of no return. India needs to upgrade the current arrangement
of tending to medical negligence utilizing the entirety of the previously
mentioned arrangements successfully.
The author of this blog/Article
is Kishan Dutt Kalaskar, a Retired Judge and practising advocate
having an experience of 35+ years in handling different legal matters. He
has prepared and got published Head Notes for more than 10,000 Judgments
of the Supreme Court and High Courts in
different Law Journals. From his
experience he wants to share this beneficial information for the individuals
having any issues with respect to their related matters .
Author :
Kishan Dutt Kalaskar
Advocate (Retired Judge)
No.74, 1st Floor, 6th
Cross,
Malleswaram,
Bengaluru-560003
Mob: 9686971935
www.kishanretiredjudge.com