Medical Compensation In India

INTRODUCTION

Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the

law mandates carefulness. Persons who offer medical advice and treatment implicitly state that

they have the skill and knowledge to do so, that they have the skill to decide whether to take a

case, to decide the treatment, and to administer that treatment. This is known as an “implied

undertaking” on the part of a medical professional.1 A breach of this duty gives a patient the

right to initiate action against negligence.

Medical malpractice is professional negligence by act or omission by a health care provider in

which care provided deviates from accepted standards of practice in the medical community and

causes injury to the patient. Professional negligence or medical negligence may be defined as

want of reasonable degree of care or skill or willful negligence on the part of the medical

practitioner in the treatment of a patient with whom a relationship of professional attendant is

established, so as to lead to bodily injury or to loss of life.2

Professional negligence: meaning and concept

Negligence is culpable carelessness- conduct which involves an unreasonably great risk of

causing harm to another. Negligence excludes wrongful intention since negligence and wrongful

intent are mutually exclusive. No result which is due to carelessness can have also been intended.

Nothing which was intended can have been due to carelessness. The question in every case

would be whether the medical practitioner in fact attained the degree of due care established by

law.

Alderson B. defined negligence- "Negligence is the omission to do something which a

reasonable man, guided upon those considerations which ordinarily regulate the conduct of

human affairs, would do, or doing something which a prudent and reasonable man would not

do."

1 Murthy, K.K.S.R., “Medical Negligence and the Law”, Indian Journal of Medical Ethics, Vol. 3, July-Sept, 2007.2 See, http://www.helplinelaw.com/docs//main, retrieved on 2.5.2009.

The American Restatement of Torts defines it as "Conduct which falls below the standard

established by law for the protection of others against unreasonable risk of harm."3

In England, there are no degrees of negligence though some authorities did differentiate between

gross negligence (culpa lata) from slight negligence (culpa levis) These distinctions were based

partly upon Roman law and partly upon the misunderstanding of it. The distinctions are no

longer used by courts and a single standard of negligence is used in England.

Liability of the doctors is of following types:

1. Civil Liability and,

(a) Liability under Torts

(b) Liability under Consumer Protection Act.

2. Criminal Liability.

3. Disciplinary Action under Indian Medical Council Act, 1956

In 1995, the Supreme Court decision in Indian Medical Association v. V.P. Shantha4 brought

the medical profession within the ambit of a 'service' as defined in the Consumer Protection Act,

1986.

The court held that:

"In the matter of professional liability professions differ from other occupations

for the reason that professions operate in spheres where success cannot be

achieved in every case and very often success or failure depends upon factors

beyond the professional man's control."

As a result of this judgment, medical profession has been brought under Section 2(1) (o) of

Consumer Protection Act, 1986 and also, it has included the following categories of

doctors/hospitals under this Section:

1. All medical / dental practitioners doing independent medical / dental practice unless rendering

only free service.

2. Private hospitals charging all patients.

3 See, www.healthlibrary.com, retrieved on 2.5.2009.4 AIR 1996 SC 550.

3. All hospitals having free as well as paying patients and all the paying and free category

patients receiving treatment in such hospitals.

4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a

client or an employment for that of an employee.

Further, this judgment concedes that the summary procedure prescribed by the Consumer

Protection Act, 1986 would suit only glaring cases of negligence and in complaints involving

complicated issues requiring recording of the evidence of experts, the complainant can be asked

to approach the civil courts.

Damages Paid in medical negligence

The Supreme Court in the case of Minu B. Mehta vs. B.R. Nayar 5 has held that the right to

receive compensation can only be against a person who is bound to compensate due to his failure

to perform a legal obligation. In many cases doctors have been held liable for negligent acts,

such as removal of a wrong eye or a kidney, based on pecuniary interest or where minimum

facilities were available. Sums paid in compensation are normally referred to as damages, and

are meant as financial restoration of the victim to the equivalent of his state before the negligence

supervened. Medical negligence is something that is penalized the world over. When a patient

goes in for a medical procedure, the person is entrusting their lives to the doctor (s) attending on

them. It used to be said earlier that a Doctor is a very respected person, and that it would be

unfair to penalize a doctor for some problem that occurs during a medical procedure; this is now

countered by the argument that modern hospitals and the medical industry charges market rates

for their procedures, and hence are not doing any favors to patients.6

CONCEPT OF DAMAGES OR MEDICAL COMPENSATIONOnce the complainant has established that the defendants lack of care caused his injuries he is

entitled to be compensated for all of his losses which are attributable to those injuries. In case of

personal injuries, damages are divided into two categories: special damages and general

damages. The basic principle in awarding compensation is to put the plaintiff in the position he 5 1977 (2) SCC 441

6 See, http://ashisha.com/consumer/2009/05/16/supreme-court-awards-rs-1-crore-damages-for-medical-negligence/, retrieved on 20/5/2009

would have been had the negligence not occurred. Obviously, although the purpose is to

compensate the victim for his injuries, in reality no amount of money can compensate for the

pain and suffering sustained. 7

The increase in consumerism, raised expectations, wider publicity about high technology

medicine have also served to increase the tension under which medicine is both practiced and

perceived.8

The Basis Of Liability

The nature of the relationship between doctors and patients is determined largely by the practice

of the medical profession, and shaped by a strong commitment to long standing principles of

medical ethics. The law plays a significant role, however, in providing a structure within which

the doctor- patient relationship is conducted. 9

The provision of compensation is one of the major functions of law. Receipt of damages

represents compensation for pain, suffering, and injury to health, reduced life expectancy or

death. 10

This may also include claims for certain financial losses such as loss of earnings (past and future)

and medical care (also past and future), for example. Scots and English law differ in their

approach to damages. 11

It’s usually fault as a basis of liability on which compensation is ordered by the courts. In

adversarial litigation process like that in India it is essential that the courts not only look into

appreciating the victims claim that there has been negligence but also ensure that once that has

been established the compensation ordered to be paid should be in consonance with the future

care of the victim. The courts have to appreciate the value of the traumatic life that the victim

7 Khan Malcolm and Robson Michelle, Medical Negligence, Cavendish Publishing Limited, 1997, Great Britain, at page 203

8 Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 1

9 Jones A Michael, Medical Negligence, Sweet and Maxwell, London, 2003, at page 56

10 See, Damages (Scotland) Act 1993, discussed in “The Damages (Scotland) Act 1993”, F.Maguire (1993), S L T 245.

11 Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 82

will lead and the order of compensation has to be able to consummate the future costs of the

victim’s life.

The human rights aspect of the right to compensation cannot be over looked. Every individual

has the fundamental right to good health care services and once that right has been violated the

individual has the right to adequate compensation from the erring authority and the courts have

to keep in mind the strict connotation of bearing of the violation on the individual’s future life

prospects.

MEDICAL COMPENSATION IN ENGLANDIn England the medical services are provided by the state as well as private practitioners. The

National Health Services is the state run health service provider. This machinery has it’s in built

complaint mechanism and the process is three step process. In 1978, the Royal Commission on

Civil Liability and Compensation for Personal Injury, chaired by Lord Pearson, reported.12 This

was the first major investigation of the “compensation debate.” As far as medical litigation was

concerned it confirmed that the success rate was between 30%-40%.13 In England 3000000

patient-adverse outcomes occur annually, with about 75000 of these being due to negligence.14

The heads of damages paid are:-

General, special and Provisional.

General damages are those which fall to be assessed and estimated and involve a greater degree

of judicial skill and discretion. General damages comprise the award made for the pain, suffering

and loss of amenity occasioned by the breach of duty and also in respect of income or profits and

future expenses such as care and accommodation. The court, in assessing damages, must

determine both past and present losses, some of which are entirely pecuniary and some of which

are personal and non-pecuniary such as compensation for disfigurement and pain which has to be

quantified in monetary terms. 15

12 Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 79, quoting (footnote 41): Cmnd 7054, 1978

13 Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 79, quoting (footing 42): Pearson Report, paras. 78 and 1326

14 Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 81, quoting (footnote 50): C. Vincent, M.Ennis, R.J.Audley, Medical Accidents, Oxford medical Publications, 1990, at Page 20

15 MA Jones- Nelson Rodney and Burton Frank, Medical Negligence Case Law, Butterworths Publications, London, 1995, at Page 147 and 148

In Hughes v Hay 16, the trial judge awarded a sum of 3,000 Pounds to cover the prospect of the

plaintiff having difficulty in finding employment should he ever lose his job as a serving police

officer. This award for disadvantage on the labour market was based on the assumption that he

would be fit enough to carry on for ten more years in the police services. The plaintiff appealed

and sought leave to have the court consider new evidence that he was in fact subsequently retired

after the trial from the police force on medical grounds, following a police medical examination

three months later. The court of appeal allowed a retrial on the questions of this discharge.

The damages are usually paid on the following based categories17:

1. Pain and Suffering

This forms the part of general damages award. The damages are assessed at the date of

the trial and not the date of injury. It is unlikely that any injury will not result in some

degree of pain and suffering; therefore as a rule the courts do not recognize the injury

itself as a separate head of damage, except where it is specific, e.g. loss of an arm or leg

where there are recommended for such injuries. The courts also take into account any

shock suffered by the plaintiff.

2. Loss of Amenity18

Damages under this head seek to compensate the plaintiff for his loss of enjoyment as a

result of the accident, i.e., when he can no longer do the things he was accustomed to

doing. The court takes into account how long the plaintiff will be deprived of these

amenities; if it is for the rest of his life the damages awarded will be in proportion to his

age and life expectancy. The plaintiff need not be aware of the loss of amenity; what

matters is that the amenity is lost.

The general damages for pain and suffering and loss of amenity are assessed once and for

all at trail.

3. Loss of Future Earnings

16 MA Jones- Nelson Rodney and Burton Frank, Medical Negligence Case Law, Butterworths Publications, London, 1995, at Page 148

17 Khan Malcolm and Robson Michelle, Medical Negligence, Cavendish Publishing Limited, 1997, Great Britain, at page 203

18 Khan Malcolm and Robson Michelle, Medical Negligence, Cavendish Publishing Limited, 1997, Great Britain, at page 204

This head is an exception to the general rule that pecuniary losses fall into the special

damages category. The reason is that it is often impossible to say what the plaintiff’s

future loss would have been but for his injury. For e.g., it may be unclear how long he

will require medical attention or when or if at all he will return to work.

4. Damages for handicap in the labour market- the Smith v Manchester award19

Damages under this head are often referred to as damages for loss of a person’s earning

capacity. A true award under this head is made to a plaintiff who is able to return to his

employment but his injuries mean that he is more likely to lose his job in the vent of

redundancies and/or he is plainly at a disadvantage in the labour market, e.g.

predisposition to similar injury or has been unemployed through his disabilities since the

injury.

5. The Lost Years.

These damages are incapable of any precise calculation and form part of the general

damages award. The claim is made by the plaintiff for the ‘lost years’ i.e. the period by

which his life is shortened because of his injuries and during which he would have

received remuneration.

6. Past and Future expenses

In assessing these losses there is no difference between past and future losses; the

damages are dealt with under the same categories and the same deductions and/or

contingencies are taken into account. The main item under this head will be medical

expenses, both past and future medical expenses and any other future expenses will be

assessed as part of the plaintiff’s general damages; those which have already been

incurred will form part of the special damages.

As far as loss of earnings is concerned the expenses are assessed using the

multiplicand/multiplier approach. Generally , a greater multiplier is applied here than for

loss of earnings since it is assumed that most expenses will be permanent future

expenses, except where the plaintiff’s expectation of life is short, in which case his loss

of earnings will be greater.

Other pertinent categories that are borne in the order of compensation are

accommodation, nursing care, medical expenses etc.

19 Smith v Manchester Corporation (1974) 17 KIR 1

The Multiplicand/Multiplier approach

In Lim Poh Choo v. Camden and Islington Area Health Authority20 Lord Scarman said:

“The principle of law is that compensation should as nearly as possible put the party who has

suffered in the same position as he would have been in if he had not suffered the wrong.”

The quantification of past loss involves a survey of what has happened and the quantification of

future loss involves an assessment of what will happen. No matter how cogent the evidence on

behalf of the plaintiff, the evaluation of the future loss is bound to be plagued by uncertainty.21

The intended purpose of the award for prospective damages is to provide the plaintiff with a sum

which will both cover his anticipated needs until death and also compensate him for his loss of

earnings until his intended retirement.

This is where the ‘multiplier’ is used by the courts, which is determined by the number of years

the awarded sum of damages, if invested, should last, being equivalent to the period of future

loss or expense. The award of damages for future loss and expense is intended to replace losses

or needs at defined rates (the multiplicands) over a future period or future periods. There may be

separate of loss or needs to be considered, for example:

Over the course of childhood until the age of 18 years;

A course of future treatment or therapy which may be forecast to last a finite period of

years;

A working life lost as a result of injuries;

A full life until death

The award will be calculated on the assumption that at the end of the period of loss or need no

“windfall” sum of damages will remain.22

The thinking in England is that the capital got in the award is invested and earns interest.

Therefore the greater the rate of interest which is annually obtained on the unexpended portion of

20 (1980) A.C. 174 at 192; (1979) 2 All E.R.910 at 917

21 Andrews Peter and Lee Terry, Catastrophic Injuries: A Practical Guide to Compensation, Sweet and Maxwell publication, England, 1997, at Page 97

22 Andrews Peter and Lee Terry, Catastrophic Injuries: A Practical Guide to Compensation, Sweet and Maxwell publication, England, 1997, at Page 98

the award, the longer the initial sum will last. The lower the predicted or assumed rate of interest,

the greater the multiplier factor should be in order to achieve fair compensation for suture loss

and expense.

The multiplier is the key mechanism by which the multiplicand is converted into a capital sum.

The application of the multiplicand-multiplier process converts the cost of a stream of future

losses and/or needs into a one-off lump sum. It calculates the present value of the award needed

to meet those future losses and needs.

In practice the principal features taken into consideration for determination of multiplier are:23

(i) The arithmetical calculation of the actual period of loss or expense, which period

commences with the date of trail;

(ii) The appropriate discount rate for early receipt of lump sum, which will be based on a

determination of the likely rate of interest to be earned on the money in the future;

(iii) The contingencies, both adverse and favourable, which may have affected the

plaintiff in the future had he not been injured.

The function of the multiplier was explained by Hobhouse J24. (as he then was) in Willett v.

North Bedfordshire Health Authority:

“the function of the multiplier of an annual sum is first to convert one or more annual sums,

that is, items of expenditure, into a capital sum. It is, secondly, to allow for the advancement of

the payment or payments that are being made. It is, thirdly, to allow for contingencies and other

adjusting factors to be taken into account. The first and second exercises are mathematical in

approach and should be dealt in that ay, the third is something to be assessed and has to take into

account all the circumstances of the case, including how the multiplicand has been arrived at.”

Different multipliers and multiplicands are used in different cases. The law of the country lays

down the multiplicand for the claims of a certain category.

What is noted is that in England rarely any cases go to contested hearing, out of court settlement

is the norm set there and when the cases do reach the court there seems to be a deeper

23 Andrews Peter and Lee Terry, Catastrophic Injuries: A Practical Guide to Compensation, Sweet and Maxwell publication, England, 1997, at Page 99

24 (1993) P.I.Q.R. Q166at Q167.

understanding of the overall affect on the victim of the injuries. The following list of paid

damages in various injuries shows the trend25:

• Head Injury

Severe Brain Damage up to £200,000

Moderately Severe Brain Damage up to £145,000

Moderate Brain Damage up to £110,000

Minor Brain Damage up to £22,000

Minor Head Injuries up to £6,000

• Psychiatric Damages

Severe Psychiatric Damage up to £60,000

Moderately Severe Psychiatric Damage up to £28,000

Moderate Psychiatric Damage up to £10,000

Minor Psychiatric Damage up to £3,000

Post-Traumatic Stress Disorder

Severe Post-Traumatic Stress Disorder up to £50,000

Moderately Severe Post-Traumatic Stress Disorder up to £30,000

Moderate Post-Traumatic Stress Disorder up to £12,000

Minor Post-Traumatic Stress Disorder up to £4,000

Chest Injury

Severe Chest Injuries up to £77,000

Moderate Severe Chest Injuries up to £52,000

Moderate Chest Injuries up to £28,000

Mild Moderate Chest Injuries up to £9,000

Mild Chest Injuries up to £6,000

Slight Mild Chest Injuries up to £2,500

Slight Chest Injuries up to £2,000

Eye Injury

Total Blindness up to £140,000

Loss of Sight in One Eye with Reduced Vision in the other up to £92,000

25 See, http://www.100percent-compensation.co.uk/compensation_awards.htm, retrieved on 12/5/09 at 11:30 am

Total Loss of One Eye up to £34,000

Minor Eye Injuries up to £4,000

Deafness Damages

Total Deafness up to £57,000

Severe Loss of hearing in One Ear up to £23,000

Moderate Loss of hearing up to £15,000

Mild Loss of hearing up to £7,000

Slight loss of hearing up to £6,000

Pelvis/Hip Injury

Severe Pelvis/Hip Injuries up to £67,000

Moderate Severe Pelvis/Hip Injuries up to £32,000

Moderate Pelvis/Hip Injuries up to £20,000

Mild Pelvis/Hip Injuries up to £6,000

Minor Pelvis/Hip Injuries up to £2,000

Arm Injury

Loss of Both Arms up to £150,000

Loss of One Arm (at Shoulder) over £72,000

Loss of One Arm (above Elbow) up to £67,000

Loss of One Arm (below Elbow) up to £57,000

Severe Arm Injuries up to £67,000

Moderate Arm Injuries up to £31,000

Mild Moderate Arm Injuries up to £20,000

Mild Arm Injuries up to £10,000

MEDICAL COMPENSATION IN US

Presently, the medical malpractice liability cap in Virginia is $2 million. In Indian currency that

is 10 Crores approximately! The limit on punitive damages is $350,000. A judge denied most of

the government's request to cut back an $8.5 million award for a woman who was misdiagnosed,

and who suffered injury from flesh eating bacteria!

Sophia and Darrell Savage filed a medical malpractice suit against Three Rivers Medical Center

- and won $2.5 million to cover their medical costs. They awarded Sophia $1.9 million for past

and future pain and suffering and $65,968 for past medical expenses. Darrell was awarded

$500,000 for loss of consortium. Savage underwent her hysterectomy in 2001, in the hospital

where she was also employed as a registered nurse. Four years later, after suffering from

abdominal pain, doctors discovered the sponge had deteriorated and attached to her lower

intestine. She required another surgery in which some of her intestine was removed. She will

have pain for the rest of her life. Although the statute of limitations for medical malpractice

cases is two years, since the sponge was not discovered until many years later, the Savages were

still able to file their lawsuit.26

It seems that in the US too there is increased stress on the victim’s right to be put in the condition

before the negligence happened as far as monetary help is concerned.

MEDICAL COMPENSATION IN INDIA

Anuradha Saha Case

The landmark medical negligence suit in India is still up for final hearing in the SC on 14 th July

2009 in “Anuradha Saha Death Case”. She died in 1998 due to medical negligence of doctors of

a hospital in West Bengal and Kunal Saha had filed a Rs.770 million ($17 million) compensation

claim. In the process, he has scripted one of the most high profile medical negligence cases in

India. 27 The National Consumer Disputes Redressal Commission Bench, presided by Justice M

B Shah, absolved the Advanced Medical Research Institute (AMRI)-Apollo Hospital and its five

Kolkata-based doctors Sukumar Mukherjee, Balram Prasad, Kaushik Nandi, Abani Roy

Chaudhary and Vaidyanath Haldhar of charges of medical negligence.28

26 http://www.hsinjurylaw.com/blog/index.cfm?catid=371, retrieved on 17/5/09

27 See, http://www.bio-medicine.org/medicine-news/Stage-Set-For-Final-Hearing-On-India-u2019s-Biggest-Ever-Medical-Compensation-Clai-8473-1/, retrieved on 27/4/09

28 See, “Apex Consumer Court Rejects Rs 143 Cr Medical Negligence Claim” on website of Bio Medicine at http://www.bio-medicine.org/medicine-news/Apex-Consumer-Court-Rejects-Rs-143-Cr-Medical-Negligence-Claim-10806-1/, retrieved on 27/4/09

What is noteworthy is what the NCDRC observed in its judgment while dismissing the case:

"Whether the courts or the consumer fora can sit in appeal against the decision taken by the

expert doctors with regard to administration of a particular dose of medicine? Answer would be

– No. We reiterate that doctors or surgeons do not undertake that they will positively cure a

patient. With regard to the alleged deficiency in the treatment given to Mrs. Anuradha by

opposite party doctors, there is no substance.”

The insensitive way the courts seem to be handling the compensation claims only adds to the

worries about how far compensation jurisprudence will go in the country!

Prashant S Dhananka Case

In a recently decided case the Supreme Court on 14 th May 2009 awarded a compensation of Rs 1

crore to a software engineer who suffered permanent disability due to medical negligence at a

government-owned hospital in Andhra Pradesh.

The bench enhanced the compensation to Rs 1 crore from Rs 15 lakh which was awarded by the

Andhra Pradesh High Court to Prashant S Bhanaka, the software engineer. The victim suffered

permanent disability in the form of paralysis and other complications, rendering him incapable of

all normal chores after undergoing a surgery in Nizam Institute of Medical Sciences. 29

It is a pittance compared to the 5 million pounds (a little over Rs 37 crore) awarded to

British TV actress Leslie Ash in a similar case last year. While it took Dhananka 19 years

to get justice, British actress Leslie Ash got her compensation in just four years. She had

brought the claim after contracting an MSSA (methicillin-sensitive staphylococcus aureus)

infection while being treated by the Chelsea and Westminster Hospital in London for two

cracked ribs in April 2004. As a result of the infection, she suffered severe mobility problems

and even after four years walked with the aid of a stick. Dhananka's nightmarish experience is

similar to the case of national table tennis player V Chandrasekhar, who fought a legal battle

against Apollo Hospital, Chennai, for over a decade before being awarded Rs 19 lakh by the

Supreme Court in February 1995 -- the highest compensation in a medical negligence case in

29 See, http://www.ndtv.com/news/india/medical_negligence_case_victim_gets_rs_1_crore.php, retrieved on 19/5/09

India before the Dhananka verdict. Chandrasekhar too had been left partially paralyzed due to

medical negligence.30

Omega Hospital Case

The Dakshina Kannada District Consumer Disputes Redressal Forum recently passed an order

directing Omega Hospital Ltd. in Pumpwell area here to pay Rs. 15 lakh as compensation for

‘negligence’ in handling a patient seven years ago. This is the first time such a high amount has

been awarded as compensation. Mohammed Ashraf (40) was admitted to the hospital on October

10, 2002 after he complained of mild chest pain. The Director of the hospital and the cardiologist

advised him to undergo a “sophisticated surgery” that would cost Rs. 2 lakh. But after the

operation, the patient did not regain consciousness for quite some time. Later, his speech became

incoherent. His wife, Hurunissa, says that Mr. Ashraf is now like a “living corpse”. He is

bedridden.

The forum found that Mr. Ashraf’s condition was caused because his brain did not receive

sufficient oxygen during the operation. He was put on an artificial heart and lung machine, it said

and added that the doctors should have monitored his condition and calibrated the machine so

that it pumped the right quantity of blood and oxygen to the brain.

Based on material evidence, the forum came to the conclusion that negligence on part of the

doctors was obvious. The judgment says the hospital authorities made the patient and his family

falsely believes that this was an urgent surgery. The complainant was not informed of any

possible after-effects of the surgery or untoward complications. The forum found that the

doctors had obtained the consent of the patient when he was under sedation. The hospital

authorities, the judgment said, “miserably failed to prove that they had taken written consent

30See, “SC awards techie Rs 1cr damages for medical negligence”, 15 May 2009, 0134 hrs IST, Dhananjay

Mahapatra, TNN, at http://timesofindia.indiatimes.com/India/SC-awards-techie-Rs-1cr-damages-for-medical-negligence/articleshow/4528596.cms

from the patient and his relatives.” Considering the present age and condition of the victim, the

forum asked the hospital authorities to pay Rs. 15 lakh, irrespective of medical bills. 31

The Karnataka State Consumer Disputes Redressal Commission has found an obstetrician and

gynecologist guilty of deficient service and has ordered him to pay up Rs 1, 50,000 as

compensation to a 31-year-old woman from Ranebennur.

Under the CPA the case goes to the district fora and then if appealed moves up to the National

Commission. There also lies an appeal to the Supreme Court under Art 32 and to the High Court

under Art 256.

• Jurisdiction of Agencies:-

District Commission: entertains claims up to the value of Rs 20 lac.

State Commission: entertains claims from Rs 20 lacs to Rs 1 crores.

National Commission: claims exceeding Rs 1 crores.

There has been no revival in the compensation payment by the consumer forums or the courts.

The compensation ordered to be paid seems to be a petty amount in relation to what the victim of

medical negligence suffers.

Damages for personal injury and death typically take the form of a lump sum. The award or the

settlement is made once for all, and there is- except in rare cases- no possibility of increasing it

or decreasing it later because of changes in the claimant’s situation. However the lump sum

remedy does raise acute problems wherever a person suffers serious injuries, the effects of which

may still be felt long after the damages are assessed. 32 It is highly questionable whether

awarding damages for lost income or the cost of care in a lump sum is appropriate in cases where

the loss will continue after the date when the damages were assessed. A significant number of

recipients of lump sum damages have inadequate income from their awards to meet their

expenses. In most of the cases this it’s the case of mis management of the sum award, and in

31 See, http://www.hindu.com/2009/02/06/stories/2009020658950300.htm, retrieved on 2/5/09

32Cane Peter and Atiyah Patrick, Atiyah’s Accidents, Compensation and the law, Cambridge university Press, United Kingdom, 2008, at page 130

other cases it’s due to factors like unexpected deterioration in medical conditions. The Indian

judicial system refuses to look beyond the lump sum system to look for alternatives that can

actually help the victim.

CONCLUSIONMedical profession is one of the oldest professions of the world and is the most humanitarian

one. Inherent In the concept of any profession is a code of conduct, containing the basic ethics

that underline the moral values that govern professional practice and is aimed at upholding its

dignity. Medical Ethics underpins the values at the heart of the practitioner-client relationship.

Medical negligence and malpractices by doctors were the grey areas in health care where legal

issues operated.

On April 9, 1985, the General Assembly of the United Nations adopted the guidelines to provide

framework for Governments, particularly those of developing countries. The legitimate needs

which the guidelines are intended to meet include the protection of consumers from hazards to

their health and safety and availability of effective consumer redress were first set up in 1986.33

Yet it looks like the redress forums haven’t been able to actually bring justice to the victims of

medical negligence. Under Article 21 of the Indian Constitution every individual is guaranteed

the right to life and this has been construed to include right to health. The Indian courts haven’t

been able to develop medical jurisprudence, in relation to compensation, to the next level of

overall care of the victim in the future. The payments of compensation seem to be snagged by the

traditional outset of the courts and nothing seems to have been thought so as to develop the scope

of compensation payments.

Lack of social security structure in the country also hinders any victims right to effective care for

the rest of the time that he lives and therefore it become essentially more pertinent that the courts

take a forward looking approach in ordering payments.

THE WAY FORWARD

33 See, http://www.legalserviceindia.com/article/l251-Medical-Negligence.html. retrieved on 26/5/09

India’s experience with medical compensation has been insufficiently marred by very slow

growth of medical jurisprudence understanding. There is no social security structure in place and

therefore medical service becomes almost a privilege. The courts have not been progressive in

applying principles of basic human rights of the individual to health and effective medical care

and thus the medical compensation structure in India has been stagnated in the dark ages! The

fundamental principle applied to the assessment of an award of damages in tort is that the

claimant should be fully compensated. He is entitled to be restored to the position that he would

have been in had the tort not been committed, in so far as this can be done by the payment of

money.34

The obvious question to which the various problems with the system of lump sum damages gives

rise is whether some system of periodical payments would be preferable. It can be a better way

of putting back the injured person in the position they would have been had they not been

injured. This can also suggest that there can be a combination of lump sum and periodical

payments. Though its right to say that no amount of money can give back what has been taken it

has to be borne in mind that the victim of negligence should be given enough help to sustain in

future contingencies.

Going through the various compensation awards there seems to be a clear lack of understanding

of the concept of medical negligence affecting the future of the victim. Lump sum payments

have become the trend and considering how 1 crore compensation is being hailed as a

benchmark only shows that medical jurisprudence hasn’t become a part of the legal studies. Like

the western countries there is a complete lack of in depth separate study on various aspects of

medical negligence and mal practice and the deciding of compensation value on that basis. The

present system of compensation doesn’t sufficiently reflect clinical responsibility and authority.

STRUCTURED SETTLEMENTS

Under such payments damages for future losses are calculated as a lump sum but are paid

in not a lump sum form. The payment mode is decided as to how the need varies.

DAMAGES SCHEME

1. Compensation for Pain and Suffering

34 Livingstone v Rawyards Coal Co (1880) 5 App. Cas.25, 39.

2. Earning Replenishment: perhaps 70% of income

3. Re-imbursement of direct expenses- serious cases in which there was a past and

future liability for care.

PERIODICAL PAYMENTS

A structured settlement is something which is decided on the wish of the two parties

whereas periodical payments can be decided by the courts against the wish of the

defendant. A periodical payment order may directly specify the amount to be paid

periodically without calculating a lump sum, leaving it entirely to the defendant to decide

how to satisfy the order. Before making the order the court must be satisfied that

‘continuity of payment under the order is reasonably secure’.

A periodical payment order can provide for payments to continue after the death of the

injured person, in order to provide support for dependants.

LOST EARNINGS AND SUPPORT

If the life expectancy of a victim has been reduced by injuries, damages may be

recovered for loss of earnings not only up to date of expected death but also in respect of

the years when, but for the injuries, the claimant would have been alive and earning (the

lost years). This is to provide support for dependants of the injured person after death.

The multiplicand and multiplier structure is unheard of in India and its time that the

jurists apply this structured formula for calculating the past and future losses of the

victim.

PENSION STYLE SCHEME

In some cases a claimant maybe so severely disabled or incapacitated that’s medical and

nursing treatment may be required indefinitely or indeed for the rest of the injured

person’s life. It empowers a ‘care direction’ to be levied against the hospital or practice

to provide the necessary care.

PROFESSIONAL INDEMNITY INSURANCE

The principle of insurance is based on eventualities. The insurer covers the risk on

payment of consideration known as premium, and the agreement/contract is embodied in

the instrument, known as the policy. It is advisable to take an insurance cover for

professional pursuits. In case of litigation in court many a time it is the insurance

company which gives legal help to the doctors.

In case of negligence claim the litigation expenses, the claim put up by the affected

parties and /or other liabilities are borne by the insurance company provided the terms

and conditions of the contract are fulfilled and the policy is in full force and effect. The

concept is to indemnify and not to earn money. Specialists owe a greater degree of care

and skill towards their patients therefore premium for them is higher. 35

Though this concept is prevalent in use in western countries, in India the medical

professionals hardly have any such insurance cover. Professional Indemnity Insurance

cover became available for doctors and Medical establishments only from December,

1991.36 Bringing about more usage of such cover for doctors can bring s significant shift

in the compensation given to a victim. The courts can then look at the compensation to be

awarded as victim centric rather than saving the doctors.

In order to streamline the system a banding system for benefits could be developed under

which levels of benefits could be graded.

MEDICAL AUDITS

Again an unheard concept in India. A complete analysis on what has been the trend of

medical negligence in India can lay the foundation for the damages awarded to be

reviewed and for the pecuniary jurisdiction of the commissions to be increased. An

independent body does and audit on the standards of services being provided by the state

run hospitals and private hospitals. This audit then helps in getting the hospitals to better

up the services. In the western countries organisations like Harward Law School have

35 Kaushal Anoop, Medical Negligence and Legal remedies, Universal Publishing House, Delhi 1998, at page 42

36 Singh Jagdish and Bhushan Vishwa, Medical negligence and Compensation, Bharat Law Publications, Jaipur, 2004, at Page 199

conducted such audits. It has been defined as “a systematic critical analysis of aspects of

quality of care, reference to standards of care, and commitment to change”.37

ORGANISATIONAL RESPONSIBILITY

The courts enquiry is narrowly focused upon the behavior of those immediately involved

and that an award of damages depends upon establishing fault. 38 A compendium entitled

Medical Accidents, edited and with contributions by Vincent et al, was published in 1997.

It suggested that the response by the law was inadequate and insufficiently sophisticated

for the medical practice. “Blame culture” is of little use when it comes to understanding

the complex appropriate remedial measures. The law’s approach should be formally able

to recognize a wide variety of input into accidents from management, procedures,

systems and the synergy between them. The Indian system where the doctors are brought

in as experts evidence provider by the forum if needed only goes on to bring the doctor

community on one side as peers and they fail to look at the victim as a patient who has

been wronged. The courts have to start looking into the full set up responsibility and

ensure that stigmatization, charring of the doctors future career aren’t the outcomes that

the erring doctor is made to look at, organizational responsibility can to some extent lead

to that step.

References

BOOKS REFERRED

1. Khan Malcolm and Robson Michelle, Medical Negligence, Cavendish Publishing Limited,

1997, Great Britain

2. Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing

Company, 1997, England

3. Jones A Michael, Medical Negligence, Sweet and Maxwell, London, 2003

4. MA Jones- Nelson Rodney and Burton Frank, Medical Negligence Case Law, Butterworths

Publications, London, 1995

37 “Does clinical risk management improve the quality of healthcare?” D .Harper Mills, GE. Von Bolschwing (1995), 1 Clinical Risk 171.

38 Philips Fulton Andrew, Medical Negligence Law: Seeking A Balance, Dartmouth Publishing, England, 1997, at page 168

5. Andrews Peter and Lee Terry, Catastrophic Injuries: A Practical Guide to Compensation,

Sweet and Maxwell publication, England, 1997

6. Singh Jagdish and Bhushan Vishwa, Medical negligence and Compensation, Bharat Law

Publications, Jaipur, 2004

7. Lewis J Charles, Clinical Negligence: a practical guide, Butterworths Publication, London,

2001

8. Boumil Mobilia Marcia and Elias E Marcia, The Law of Medical Liability, West Publishing

Company, USA, 1995

9. McLean Sheila and Mason Kenyon John, Legal & Ethical Aspects of Healthcare, Cromwell

Press, UK, 2003

10. Stauch Marc and Wheat Kay with Tingle John, Text, Cases & Materials on Medical Law,

Cavendish Publishing Ltd, UK, 2004

11. Mendelson Danuta, The Interfaces of Medicine and Law, Dartmouth Publishing Company

and Ashgate Publishing company, England and USA, 1998

CASES REFERRED

1. AIR 1996 SC 550

2. 1977 (2) SCC 441

3. Smith v Manchester Corporation (1974) 17 KIR 1

4. Livingstone v Rawyards Coal Co (1880) 5 App. Cas.25, 39

JOURNALS

Murthy, K.K.S.R., “Medical Negligence and the Law”, Indian Journal of Medical Ethics, Vol. 3,

July-Sept, 2007.

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