In a judgment on medical negligence, the Supreme Court awarded compensation amounting to Rs. 11 crore to a victim, which was to be paid by the doctors and the private hospital deemed responsible for the wrongful death of a patient. This landmark decision was by far the largest compensation award in the history of Indian medical negligence litigation. Hence, the process of calculating compensation for medical negligence has received great attention. However, the method of calculation of compensation is unpredictable as it varies hugely across different cases, courts and tribunals resulting, in a loss of faith in the system, protracted litigation, and frequent appeals. With over 80% of India’s healthcare being provided by the private sector, predictability and uniformity in the regulation of compensation in medical negligence would benefit the victims and the doctors concerned. A basic knowledge of how medical negligence compensation is calculated and adjudicated in the judicial courts of India will aid a doctor in planning his/her professional indemnity insurance, as well as in practicing his/her profession without undue worry about facing litigation for alleged medical negligence.
The basis of computing compensation under common law lies in the principle of “restitutio in integrum,” which, when translated, refers to ensuring that the person seeking damages due to a wrong committed to him/her is in the position that he/she would have been had the wrong not been committed. This implies that the victim needs to be compensated for financial loss caused by the doctor’s/hospital’s negligence, future medical expenses, and any pain and suffering endured by the victim.
Inconsistency in awarding compensation in medical negligence cases is a problem that currently plagues the Indian health sector. Every case is required to be considered independently because it would be inappropriate to not give the facts of every situation due importance. However, this increases the unpredictability and the scope of discretion provided to the judge in such situations.
In the case Sarla Verma vs. Delhi Transport Corporation, the Supreme Court noted:
“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 claimant, the litigant, the common man will be confused, perplexed, and bewildered. If there is significant divergence among tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system.”
The defendants in most medical negligence cases assert that the method of determining compensation ought to be the “multiplier method.” The principal argument in favor of using such a method is uniformity and predictability. Doctors and hospitals will not be compelled to pay large sums of money to compensate for negligence.
However, compensation that is solely based on the income of the victim would imply that medical negligence causing death or injury to a wealthy individual is worth more than medical negligence that impacts an unemployed individual or homemaker or a child or senior citizen. In the case Balram Prasad vs. Kunal Saha and Nizam’s Institute of Medical Sciences vs. Prashant S. Dhanaka the Supreme Court has, therefore, refused to restrict compensation to the multiplier method in the case of medical negligence. Further, the Supreme Court has added other dimensions to the calculation of compensation such as the medical costs incurred by the victim during the litigation, cost of future medical expenses, compensation toward mental agony and physical pain, and compensation toward loss of consortium and cost of litigation.
Medical negligence compensation is broken down into two components. The first is general damages. General damages are intended to compensate the person for the pain and suffering caused by the injury. It is based on the impact the injury has on quality of life. It can include physical pain, emotional pain, loss of reputation, impairments both physical and mental, and loss of reputation.
General damages are altogether called “pain and suffering and loss of amenity” or PSLA. Loss of amenity means the loss of the ability to enjoy life in some degree, such as losing your ability to see your loved one or no longer being able to enjoy meals because you can no longer smell it. Or maybe you have to deal with the consequence of the negligence through diminished physical or mental faculties, which could severely affect your quality of life as a result.
The second half of the equation is special damages. Special damages are there to compensate for out of pocket expenses due to the injury. However, special damages are not limited to the costs you’ve already paid.
Medical negligence solicitors can help you submit a request for special damages to cover the long-term expected costs to care for the injured person, including lost wages, physical rehabilitation, wages for carers, and future medical bills.
Kunal Saha’s case:
Dr Kunal Saha was a doctor in the United States and came to India with his wife, Anuradha, in April 1998. She complained of fever and itching and was treated by Dr Sukumar Mukherjee and later at the AMRI hospital in Kolkata. Her condition deteriorated and she was taken to the Breach Candy Hospital in Mumbai, where she passed away in May 1998. It was established that the doctors and the hospital had been negligent. Kunal filed for civil compensation of almost Rs.100 crores in the consumer court – National Consumer Dispute Redressal Commission (NCDRC) – and after a 15 year legal battle was awarded Rs. Six crores plus interest by the Supreme Court of India in October 2013.
Nizam Institute case:
The Supreme Court did not apply the multiplier method. In 1990, twenty-year old Prasant S. Dhananka, a student of engineering, was operated upon at the Nizam Institute of Medical Sciences, Hyderabad. Due to medical negligence of the hospital, Prasant was completely paralysed. Compensation was claimed, and the matter finally reached the Supreme Court. The court did not apply the multiplier method and awarded a compensation of Rs. 1 crore plus interest. The court observed: “Mr. Tandale, the learned counsel for the respondent has, further, submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method.”
Dr. Janak Kantimathi Nathan & Others v/s Murlidhar Eknath Masane & Others case:
Amit, the deceased was the only son of Murlidhar, the complainant. He was suspected of having developed epilepsy and was under the treatment of Dr. Pawar who had prescribed Gardenal tablets. Complainant wanted to have second opinion about the illness of his son. He, therefore, consulted Dr. Nathan, appellant. After examining Amit, Dr. Nathan prescribed Zeptol tablets instead of Gardenal tablets which were earlier being administered to Amit. After a few days Amit developed rashes and his body became red all over. However, it appears that after the prescription of the medicine one after another by Dr. Nathan condition of Amit worsened and he developed more convulsions. At the middle of the night Dr. Nathan was told about condition of Amit. He, however, expressed his inability to come and see Amit as he said he did not see patients on Saturdays and Sundays. Since Amit was having severe convulsions complainant took him to a nearby Nursing Home called Krishna Nursing Home. There he was attended by Dr. S.D. Vilankar who himself contacted Dr. Nathan who told him to continue treatment which Amit was having. On the advice of Dr. Nathan, Amit was admitted. There is a great deal of controversy as to whether proper hospital services were rendered to Amit and was Dr. Nathan negligent when Amit walked into the hospital. He was admitted for the treatment of epilepsy but mode of death is described as ‘Terminal Cardio Respiratory Arrest’ on account of septicemia preceded by viral encephalitis which is stated to be the cause. Complainant, father of Amit, mourns that on account of the negligence of the Hospital and Dr. Nathan he lost his only son. He made a claim of Rs. 9,22,390 as compensation against both. Complainant says he was quite surprised as to why there being no diagnosis and within 10 minutes of the admission Amit should have been given four injections. He says when Dr. Nathan visited the Hospital at about 4.30 PM on the day of admission, he was quite annoyed as to why injections had been given. He advised giving an injection of Largactil. Complainant says immediately on giving the injection Amit became unconscious. After seeing Amit for about a minute Dr. Nathan left.
State Commission has held that it was the wrong medicines given by Dr. Nathan to Amit which aggravated his health condition inasmuch as he started getting more convulsions. State Commission rightly came to the conclusion that Dr. Nathan failed to take reasonable care which a medical practitioner will take of his patient in the circumstances of the present case. It appears here principles of res ipsa loquitur (things speak for themselves) may apply. State Commission has held both the Hospital and Dr. Nathan blameworthy and awarded compensation to the complainant, father of the deceased.
Jacob Mathew vs State Of Punjab & Anr:
the informant’s father, late Jiwan Lal Sharma was admitted as a patient in a private ward of CMC Hospital, Ludhiana. Jiwan Lal felt difficulty in breathing. The complainant’s elder brother, Vijay Sharma who was present in the room contacted the duty nurse, who in her turn called some doctor to attend to the patient. No doctor turned up for about 20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant and Dr.Allen Joseph came to the room of the patient. An oxygen cylinder was brought and connected to the mouth of the patient but the breathing problem increased further. The patient tried to get up but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty. There was no other gas cylinder available in the room. Vijay Sharma went to the adjoining room and brought a gas cylinder therefrom. However, there was no arrangement to make the gas cylinder functional and in-between, 5 to 7 minutes were wasted. By this time, another doctor came and declared that the patient was dead. The Bench formed an opinion that this act attributed to the doctor could be described as an act of negligence as there was lack of due care and precaution. The Court categorically held “for this act of negligence he may be liable in tort”.
Poonam Verma v. Ashwin Patel and Ors:
A doctor registered as medical practitioner and entitled to practice homeopathy only, prescribed an allopathic medicine to the patient. As a result, the patient died. The doctor was negligent and liable to compensate the wife of the deceased for the death of her husband. The doctor who was entitled to practice in homeopathy only was held under statutory duty not to enter the field of any other system of medicine. Since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing death, his conduct held amounted to negligence per se actionable in civil law and compensation was rewarded.
- Krishnakumar vs State Of Tamil Nadu &Ors:
The appellant V. Krishankumar’s wife Laxmi was admitted in Government Hospital. Against the normal gestation period, she delivered a premature female baby. The infant was placed in an incubator in intensive care unit for about 25 days. A fact which is relevant to the issue is, that the baby was administered 90-100% oxygen at the time of birth and underwent blood exchange transfusion a week after birth. The baby had apneic spells during the first 10 days of her life. She was under the care of Dr. S.Gopaul and Dr. Duraiswamy.
Follow up treatment was administered at the home of the appellant by Dr. Duraiswamy during home visits. The baby was under his care from 4 weeks to 13 weeks of chronological age. Apparently, the only advice given by Dr. Duraiswamy was to keep the baby isolated and confined to the four walls of the sterile room so that she could be protected from infection. What was completely overlooked was a well known medical phenomenon that a premature baby who has been administered supplemental oxygen and has been given blood transfusion is prone to a higher risk of a disease known as the Retinopathy of Prematurity (hereinafter referred to as ‘ROP’), which, in the usual course of advancement makes a child blind. It was held that the hospital is liable and the compensation was paid.
Paschim Bhanga Khet Mazdoor Samiti vs. State of West Bengal :
The petitioner sustained serious injuries after falling off a train. He was refused treatment at six successive State hospitals because the hospitals either had inadequate medical facilities or did not have a vacant bed.
The Court declared that the right to life enshrined in the Indian Constitution (Article 21) imposes an obligation on the State to safeguard the right to life of every person and that preservation of human life is of paramount importance. This obligation on the State stands irrespective of constraints in financial resources. The Court stated that denial of timely medical treatment necessary to preserve human life in government-owned hospitals is a violation of this right. The Court asked the Government of West Bengal to pay the petitioner compensation for the loss suffered. It also directed the Government to formulate a blue print for primary healthcare with particular reference to treatment of patients during an emergency.