Kishan Dutt Kalaskar: 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 a number 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.

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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 consumers to lodge complaints and initiate legal proceedings. This is a much simpler process than 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 types 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:

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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.

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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 the 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.

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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.

1. A complaint can be made to the State Medical Council.
2. The patient can file a case before the Consumer Court.
3. A complaint can be filed before the Civil Court.
4. 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 “restitution 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 losses 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 speak about how Compensation is inconsistent and is one of the biggest problems 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.

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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 are 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. In 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:

1. The law is required to protect a patient’s rights.
2. 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 in the courts, protracted litigation, and also 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, 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.