By-Swetalika Das
INTRODUCTION
Medical negligence cases are rapidly increasing day by day and it is becoming a matter of concern for both the government and the legal system. We all know that Human life is a gift given from the god and to make it a fortunate one we take care of our life in all possible ways. For our sake of life there are doctors who works hard to save our lives but there are also many doctors and hospitals who are negligent in their duty. Due to their breach of duty people are losing faith in the medical fraternity. Medical Negligence is an act which is done carelessly by the doctors or any authority of the hospital which results into severe damages to the patient and its family. This offence is not mentioned in any specific law but in many laws such as Law of torts, Law of contracts , Indian penal code and Consumer Protection Act.
In case of medical negligence, a victim has a right to file a case against the medical authorities before any civil court or a consumer court and subsequently, the victim can get a adequate remedy from it. Generally, compensations are given as the remedy in the cases of medical negligence . In India, where doctors were treated as god the negligence from the same person is highly shameful . Therefore, to put an end to this issue there were cases where courts have demanded a considerable high amount of compensations from alleged hospital. The high compensations at other part is making another topic of debate after the supreme court of India awarded a high amount of compensation of Rupees 11 crore ( includes interests) against a private hospital . This is being said that it is the highest compensation paid by any hospital in the history of medical negligence.
Earlier, there were also compensations as remedy but the compensations were in between Rupees 3,00,000 to Rs 6,00,000 which is very less as compared to current trend of compensations. Its very important to know that compensations were only given as remedy in major cases and the quantum of compensation is decided by the court after reviewing the level of damages whereas in some minor cases the court can cancel the licence of the accused doctor or can also give a warning. The high compensations are being a matter of huge concern for our society which needs a correction and that should be acceptable for both the parties. This article will focus on the advantages of large compensations and how the issue of medical negligence is now a serious concern in India .This article will further discuss on the necessity of a consistent compensation in case of medical negligence.
MEDICAL NEGLIGENCE AND THE COMPENSATIONS:
Large compensations had been resulting in many controversial debates where many were supporting the large compensations because there were assumptions that high compensations can put a strict law over the medical authorities while there were many other assumptions which states that high compensations can lead to rise of medical fees for the patients. However, the supreme court of India has settled a rule for the medical authorities in two broad aspects.
Firstly, for the criminal liability there should be a high degree of medical negligence which can cause rigorous damages to the victim or his family members whereas for the civil liability, compensations would be awarded to the victim and its family depending upon the facts of the case. In Indiaunlike USA, there is no legal system which can determine and calculate the compensations . In India, there is an exponential growth of uncertainty and inconsistency in calculating the compensations and due to this uncertainty, no justice is being made to either of the parties . Therefore, the question arises that whether large compensations were increasing the cases of medical negligence or giving a strict disciplinary rule upon the medical fraternity. Hence, the methods for calculating compensations becoming a necessity to make a stable decision regarding the compensations.
CALCULATION OF COMPENSATION IN A MEDICAL NEGLIGENCE CASE
In India, the civil court or consumer courts have all the discretions for calculating the compensations and therefore, the victim and its family were bound to accept whatever compensations they receive. The legal principle which is determining the compensation is ‘ Restitution in Integrem’ which means when a person or a victim asks for the damages for the medical negligence then they have a complete liberty to askfor it and the medical faculty are bound to give whatever compensations they were asked for the victim’s financial stability , future health expenses which were caused by the doctors or the medical staffs.
There are many legal cases which shows the inconsistency and instability of compensations like Kunal Saha’s case, Sarla Verma’s case , Nizam institute case etc . Inconsistency of compensations had become a major issue towards public health care sector of India. Many tribunals calculate the compensations in different manner on the similar cases. If this continues, then people will lose faith in the judicial system because of the confusions and frustrations. There is a huge necessity that tribunals must provide same compensations on the same facts so as to avoid any confusion and distrust among the people . The supreme court has also stated that “ This calculation of compensation is being a serious concern and are creating confusions among the common man .” As stated earlier , all the rights and liberty of deciding on adequate amount of compensations is of the judges of supreme court and high court. Therefore, the responsibilities of calculating compensations comes over the legal system. There were many methods of calculating compensations which were offered by the defendants from which the most used method is the multiplier method.
The multiplier method was first developed for awarding compensation in the case of motor vehicle accidents to calculate the penalty . The sum is calculated according to the multiplicand and the multiplier where the multiplicand is victim’s salary minus the expenses of his treatment and the multiplier is the total number of years of victim who would have earned his salary within those years . Other factors are also taken into consideration such as the average life expectancy, the number of years of unemployment of the victim , the victim’s age . Many defendants assumed that multiplier method will calculate the compensations and loss of victim in an adequate manner but multiplier method is wholly based only by assuming the income of victim , there are also other factors which should be taken in consideration. However, The supreme court declined this method for medical negligence cases. Later on, Supreme court decided to calculate the compensations only by analysing the medical expenses of the victim , costs of the future expenses , loss of mental and physical pain . However, the uncertainty and instability of calculating expenses is still growing on. Calculating compensations is very subjective in nature which varies in different cases and hence, it cannot be calculated mathematically.
1.KUNAL SHAH’S CASE:
Facts of the case:
Dr Kunal Saha was a doctor in profession who was settled in United States and in April 1998, He came to India with his wife . After some days of staying his wife complained of fever and itching . Later on, she was admitted to AMRI hospital of Kolkata but unfortunately, her condition got worse and she was shifted to the Breach Candy hospital in Mumbai where she was declared died in 1998. After the case was filed by Kunal Saha it was discovered that it was a case of medical negligence and his wife died because of doctors negligent act. Further, Kunal filed for civil compensation in the consumer court by demanding for Rs 1 crore and after so much hindrances Kunal was awarded of Rs 6 crore compensation after 15 years from the incident in October 2013 by the Supreme Court.In this specific case, "
Supreme Court denied to apply multiplier technique and indicated the pointlessness of this strategyby stating the fact that “ The multiplier method was established for “ no fault” motor vehicles accident. Hence, it’s so clear that there is no similarity between the case motor vehicles accidents and the medical negligence. It was said that multiplier method was used to determine the just compensation which can be an injustice to the victims because in the multiplier method the income of only Rs 15,000 per year can be referred as multiplicand but if the victim has no income then according to the section 163 A of the motor vehicles act 18 would be the highest multiplier. Therefore, in cases of housewives, child or a person who is not working could get only of Rs 1.8 lakh as compensation in case of medical negligence. It is further stated that hospitals and medical authorities nowadays getting income in crores of rupees per month . Hence, in such case amounts like Rs 1.8 lakh is not an issue for the medical fraternity. Therefore, multiplier method can help in increasing more cases of medical negligence rather than decreasing.”
2. NIZAM INSTITUTE CASE
In this case, the Supreme Court didn’t apply multiplier method as well.
The facts of case:
A 20year old boy named Prasant S. Dhanaka who was an engineering student was operated at Nizam Institute of Medical Sciences, Hyderabad in the year 1990. Unfortunately, Due to sheer negligence by medical authorities Prasant was paralysed. Further, the victim’s family reached to consumer courts for compensation and then, the case reached to Supreme Court of India.
[1]The court observed that " the counsel of Respondent has presented the report that the correct strategy for ascertaining medical negligence would be multiplier method but the court observed that the level of sufferings of complainant wouldn’t be justifiable if the compensation is given through multiplier method. These are some serious matters which cannot be calculated through multiplier method.”
There are many cases where the victim dies because of the negligence but here, in this case the victim was paralysed and his complete future would be in darkness. The severe damages which was faced by the victim was an undeniable fact and the compensations should be awarded by observing all the facts starting from his medical expenses to his personal expenses. This kind of helplessness is not only suffered by him but by his whole family. Therefore, the Supreme Court awarded of Rs.1crore plus interest as compensation to the victim.
ADVANTAGES OF COMPENSATION
Filing for compensation is a legal right of the victim of medical negligence. A victim can file compensation in any civil court or consumer court. They also have the liberty to approach the state medical council. However, seeking for compensation is the most opted option for victims of medical negligence as it can reduce their medical expenses of their treatment and can also help for their insurances. Further, awarding high compensations put a deterrence over the doctors and hospital. These are some of the advantages of compensation as a remedy:
1. Deterrence on medical faculty
High compensations are believed to put a strict restrictions on the doctors. Negligence in medical act is undoubtedly a heinous offence but due to the imposition of high compensations the cases of medical negligence could be reduced as doctors will be more careful from the next time . Moreover, the sheer negligence is amounting to deliver a wrong message to our society as they believe doctors to be a life saver but when cases like medical negligence happens the trust level of people on doctors gets diminish . Large compensations also include disciplinary damages which can be issued as safety of victims.
2. Penalty
The calculation of compensation will be determined by the judges of Supreme Court and high court by putting a strict discretion for the same and this allocation of compensation would be decided only after observing the liability. This can ensure that the accused ones are abide to award the large compensation to victim.
3. Compensation as legal remedy
Compensation is the ideal remedy for the victims of medical negligence as it helps to fulfil their medical expenses and future medical expenses. Apart from this, compensation can covers their loss of income and expenses of litigation. This proposition of legal remedy was established so as to ensure a healthy and financially stable life for the victims and his family.
CONCLUSION
In a country like India which consists of a vast population there were many heinous offences which were get lodged in every span of minute but cases like medical negligence needs to have a special attention from our legal system and the government. Patients approach to a doctor by having a trust that the doctor will cure or save their life but a breach of trust from the doctor’s side is completely unacceptable. Profession of a doctor is a noble profession where a small negligence can take life of an innocent. The administration needs to be conscious and should put arrangements in the medical profession so as per the concerns regarding the victims of Medical negligence.
REFERENCE
[1]Meghana s. Chandra and Suresh Bada Math, Progress in medicine: compensation and medical negligence in India : Does the system the system need a quick fix or an overhaul, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5109756/
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