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In a recent 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 and debate, largely due to the impact that it is going to have on the practice of medicine within the country, in the near future. 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. This article addresses the merits and demerits of large compensation awards, and also discusses whether the system is broken, needs a quick fix, or a massive overhaul.
Key Words: Civil liability, compensation, consumer court, medical malpractice, medical negligenceThe Supreme Court of India relaxed the norms for doctors with regard to criminal liability for medical negligence by adding the requirement of “gross” medical negligence.[1,2,3] However, they have recognized the culpability of doctors through civil liability by awarding large compensation awards. The recent judgment awarding compensation of Rs. 11 crore was by far the biggest payout in the history of Indian medical negligence litigation.[4]
The advent of high compensation awards for medical negligence claims in India has resulted in apprehensive conjecture regarding the impact that such awards may have on the manner in which doctors practice medicine within India and how this consequently translates into rising costs for patients. While some predict a consequent rise in frivolous litigation, others posit the argument that the health sector in India needs to be regulated more stringently[5] and that the fear of large compensation awards will ensure that doctors are not negligent.[6] In light of the recent judgments offering large compensation amounts,[4,7,8] it is pertinent to examine if this signals the beginning of increasing medical negligence litigation and the practice of defensive medicine,[9] and if there is a consequent need to modify the manner in which medical negligence is currently addressed in India.
India's health-care system has to account for and regulate private (individual and corporate), public, and not-for-profit hospitals within its framework. In addition, the Indian government is bound to ensure universal access to healthcare[10] through the public health sector. It is, therefore, incumbent upon the judiciary to balance the interests and rights of all concerned parties.
The decision to take legal action against a practitioner may be determined not only by the original injury but also by insensitive handling and poor communication after the original incident.[11] Thus, a patient who alleges medical negligence can resort to any of the following legal remedies: (a) Complaining to the State Medical Council, (b) filing a case before a consumer court, (c) filing a case before a civil court, and (d) filing a criminal complaint citing gross negligence.[12,13]
Compensation for medical negligence, however, can be provided only by a consumer court or civil court; therefore, our discussion in this article shall be restricted to the same. This article attempts to cull out the principles used to provide compensation in medical negligence claims in India; it also addresses arguments in favor of, and against, providing large compensation amounts to victims of medical negligence, and lastly it discusses various suggestions to address the present dilemma in relation to medical negligence in the framework of India's legal system, given the various constraints posed by the infrastructure within the health and legal sectors in India.
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.[14] 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.
India, unlike the USA, does not have a jury system that determines culpability or quantum of compensation. In India, the judge in the consumer court, or the civil court, has complete discretion over the compensation amount and hence is bound to consider the impact of the judgment because he/she sets a precedent even in the manner and quantum of damages awarded. Readers are requested to refer the scholarly research article by Agarwal[15] and following judicial decisions on the calculation for compensation for the loss of consortium in Dr. Balram Prasad vs. Kunal Saha[4] and Rajesh and Ors. Rajvir Singh V and Ors.[16] 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[17] 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.
As the Supreme Court noted:[18]
“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.”[4] 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.
The multiplier method was created to facilitate awarding compensation in relation to motor vehicle accidents to calculate “no-fault” liability. Therefore, it accounts for the loss of income of the victim only. This sum is calculated by taking into account the “multiplicand,” that is, the victim's salary minus the amount he spends on himself, 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, average life expectancy, the victim's age, the number of years that the victim will be unemployed, and any other factors concerning the victim's health. The usual formula utilized in calculating compensation is ((70-age) x annual income + 30% for inflation - 1/3 for expenses). Defendants assert that this is the figure that will adequately calculate the loss incurred, and therefore it should be utilized in cases of medical 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. The Supreme Court has, therefore, refused to restrict compensation to the multiplier method in the case of medical negligence.[4,7] 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.
However, the dilemma that judges face while awarding compensation in medical negligence cases is largely due to the following: (a) The law is required to protect a patient's rights and (b) the law also needs to provide due autonomy to a profession that by all definitions are an inexact science.
The Supreme Court has devised various grounds under which it awards compensation in medical negligence cases as indicated in Table 1 .
The various factors and the reasoning behind the compensation awarded in various judgments