Anuradha Saha, a 36-year-old Ohio (US)-based child psychologist who was visiting India, approached Sukumar Mukherjee, a doctor at Nightingale Diagnostic Centre in Kolkata, on 7 May 1998 complaining of acute pain, fever and rashes. The doctor’s decision to administer a higher-than-recommended dose of a steroid called Depomedrol is at the core of what was wrong with the treatment regimen. According to Kunal Saha, his wife was administered 80 mg of Depomedrol at once and prescribed two injections daily for three days. The maximum dose of the drug that was recommended for any clinical condition was 40-120 mg, at a minimum interval of one to two weeks between the doses. As Anuradha’s condition did not improve, she was admitted to AMRI Hospitals on 11 May. At AMRI Hospitals, Anuradha was administered another steroid, Prednisolone, in a tapering dose and the treatment for allergic vasculitis continued, which had an extreme reaction to a drug, leading to inflammation and damage to blood vessels of the skin. Mukherjee then left for US on a pre-arranged visit, leaving Anuradha in the care of dermatologist Balram Haldar and physician Abani Roychowdhury. The court documents say that while handing over the patient, “most culpably, he (Mukherjee) did not even prescribe I.V. (intravenous) fluid and adequate nutritional support which was mandatory in that condition”. By 12th May, Anuradha was correctly diagnosed by Haldar as suffering from Toxic Epidermal Necrolysis (TEN), while there was no drastic shift in the treatment schedule. TEN is a rare skin condition caused by a result to drugs, where the top layer of skin detaches from the lower layer all over the body. No sign of improvement could be seen and hence, Anuradha was taken to Breach Candy Hospital in Mumbai, where she died on 28 May 1998. In March 1999, US-based Kunal Saha launched a 15-year-long fight to pin responsibility of medical negligence on the doctors where he issued legal notices to as many as 26 people who had treated Anuradha, alleging negligence, and filed a complaint at the National Consumer Disputes Redressal Commission (NCDRC). Kunal initially lost his fight as the West Bengal Medical Council and Calcutta high court both dismissed his case against AMRI Hospitals. The NCDRC, on the other hand, found the hospital and its doctors guilty of medical negligence and fixed a compensation amounting to Rs. 1.7 crore.
1. Whether the claim of the claimant for enhancement of compensation in his appeal is justified. If it is so, for what compensation he is entitled to?
2. While making additional claim by way of affidavit before the National Commission when amending the claim petition, whether the claimant is entitled for compensation on the enhanced claim preferred before the National Commission?
3. (a) Whether the claimant seeking to amend the claim of compensation under certain heads in the original claim petition has forfeited his right of claim under Order II Rule 2 of CPC as pleaded by the AMRI Hospital?
(b) Whether the claimant is justified in claiming additional amount for compensation under different heads without following the procedure contemplated under the provisions of the Consumer Protection Act and the Rules?
4. Whether the National Commission is justified in adopting the multiplier method to determine the compensation and to award the compensation in favour of the claimant?
5. Whether the claimant is entitled to pecuniary damages under the heads of loss of employment, loss of his property and his travelling expenses from U.S.A. to India to conduct the proceedings in his claim petition?
6. Whether the claimant is entitled to the interest on the compensation that would be awarded?
7. Whether the compensation awarded in the impugned judgment and the apportionment of the compensation amount fastened upon the doctors and the hospital requires interference and whether the claimant is liable for contributory negligence and deduction of compensation under this head?
8. To what Order and Award the claimant is entitled to in these appeals?
i. ENHANCEMENT OF COMPENSATION
The claim for enhancement of compensation by the claimant in his appeal is justified for the following:
The National Commission rejected the claim of the claimant for ‘inflation’ made by him without conveying any reason whatsoever. The claim of the complainant has been pending before the National Commission and this Court for the last 15 years. The value of money that was claimed in 1998 has been devalued to a great extent. The Supreme Court in various cases has affirmed that inflation of money should be considered while deciding the quantum of compensation.
In Reshma Kumari and Ors v Madan Mohan and Anr, the Court has dealt with this aspect as under “One of the incidental issues which is to be taken into consideration is inflation. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard and fast rule, however, can be laid down.”
In Govind Yadav v New India Insurance Company Ltd. , the Court observed “the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation.”
The C.I.I. is determined by the Finance Ministry of Union of India every year in order to appreciate the level of devaluation of money each year. Using the C.I.I. as published by the Government of India, the original claim of Rs.77.7 crores preferred by the claimant in 1998 would be equivalent to Rs.188.6 crores as of 2013 and, therefore the enhanced claim preferred by the claimant before the National Commission and before the Court is legally justifiable as the Court is required to determine the ‘just, fair and reasonable compensation’.
In support of this contention, the claimant strongly placed reliance upon the observations in the Malay Kumar Ganguly’s case where the Supreme Court has made observations “Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.”
The National Commission, despite taking judicial notice of the claim made by the claimant in its judgment, has rejected the entire claim solely on the ground that the additional claim was not pleaded earlier, therefore, none of the claims made by him can be considered.
The Apex Court by relying on the decision in R.D. Hattangadi v Pest Control (India) (P) Ltd., made observation while remanding back the matter to National Commission solely for the determination of quantum of compensation, that compensation should include “loss of earning of profit up to the date of trial” and that it may also include any loss “already suffered or is likely to be suffered in future”. In Raj Rani & Ors v Oriental Insurance Company Ltd. & Ors, this Court has observed that there is no restriction that compensation could be awarded only up to the amount claimed by the claimant.
In Laxman @ Laxaman Mourya v Divisional Manager, Oriental Insurance Co. Ltd. & Anr., this Court awarded more compensation than what was claimed by the claimant after making the following categorical observations:-
“In the absence of any bar in the Act, the Tribunal and for that reason, any competent Court is entitled to award higher compensation to the victim of an accident.”
ii. CLAIM UNDER CPC AND CONSUMER PROTECTION ACT
Counsel on behalf of the doctors and the AMRI Hospital that the additional claim made by the claimant was rightly not considered by the National Commission for the reason that it is barred by the limitation provided under Consumer Protection Act and the claimant is also not entitled to seek enhanced compensation in CPC as he had restricted his claim at Rs.77,07,45,000/-, is not sustainable in law. The Court held that the contention urged by doctors and the AMRI Hospital is wholly untenable in law and is contrary to the aforesaid decisions. The claimant is thus entitled for enhanced compensation under certain items made by the claimant in additional claim preferred by him before the National Commission.
In this regard, this Court has also expressed similar view that status, future prospects and educational qualification of the deceased must be judged for deciding adequate, just and fair compensation as in the case of R.K. Malik.
The claimant is justified in claiming additional claim for determining just and reasonable compensation under different heads. Accordingly, the issue number 1, 2, and 3 are answered in favour of the claimant and against the appellant-doctors and the Hospital.
iii. MULTIPLIER METHOD
The National Commission has used the ‘multiplier’ method under Section 163A and Second Schedule of the Motor Vehicles Act to determine the quantum of compensation in favour of the claimant applying the multiplier method as has been laid down by this Court in Sarla Verma’s case.
Consequently, it has taken up multiplier of 15 in the present case to quantify the compensation under the loss of dependency of the claimant. It is urged by the claimant that use of multiplier system for determining compensation for medical negligence cases involving death of his wife is grossly erroneous in law.
He has further urged that the ‘multiplier’ method as provided in the second Schedule to Section 163-A of the M.V. Act read along with Second Schedule was inserted to the Act by way of Amendment in 1994 and was meant for speedy disposal of ‘no fault’ motor accident claim cases. Therefore, the present case of gross medical negligence by the appellant-doctors and the Hospital cannot be compared with ‘no fault’ motor accident claim cases.
The appellant Dr. Balram Prasad on the other hand contended that multiplier method is a standard method of determining the quantum of compensation in India.
A careful reading of the above cases shows that the Supreme Court is skeptical about using a straight jacket multiplier method for determining the quantum of compensation in medical negligence claims. On the contrary, the Court mentioned various instances where they chose to deviate from the standard multiplier method to avoid over-compensation and also relied upon the quantum of multiplicand to choose the appropriate multiplier.
Hence, the submission made in this regard by the claimant is well founded and based on sound logic and is reasonable as the National Commission or this Court requires to determine just, fair and reasonable compensation on the basis of the income that was being earned by the deceased at the time of her death and other related claims on account of death of the wife of the claimant.
iv. PECUNIARY DAMAGES
It is the claim of the claimant that he has likewise endured enormous misfortunes amid this period, both direct loss of income from his employment in U.S.A. and in addition backhanded misfortune for torment and extreme mental agony for residency dissent and end of his vocation at Ohio State University which was an immediate aftereffect of the wrongful death of deceased in India as would be clear from the judgment went by the Court of Claims in Ohio which was documented by the Hospital on 18th July, 2011. In lieu of such agony and pain, the claimant made an interest of Rs.34,56,07,000/- under various heads of ‘loss of income for missed work’, ‘travelling costs in the course of 12 years’ and ‘lawful costs including advocate fees’ and so forth. The court examined the above facts and came to the following decision:
The claim of Rs.1,12,50,000/- made by the claimant under the head of loss of income for missed work, can’t be permitted by this Court following, the same has no immediate nexus with the carelessness of the appealing party specialists and the Hospital. The claimant further surveyed his claim under the head of ‘Travel costs in the course of recent years’ at Rs.70, 00,000/- . It is appropriate to watch that the claimant did not create any record of plane passage to demonstrate his travel consumption from U.S.A. to India to go to the procedures. In any case, the claimant is a resident of U.S.A. had been living there. It can’t be denied that he needed to bring about travel costs to come to India to go to the procedures. Therefore, Rs. 10 lakhs was awarded under the head of ‘Travel expenses over the past twelve years’. Further, the claimant contended that he has expended Rs.1,65,00,000/- towards litigation in the course of recent years while looking for compensation under this head. The claim was continued the higher side. Considering that the claimant was a specialist by calling, showed up in individual under the watchful eye of this Court to contend his case and he may have required thorough help of attorneys to set up his case and create evidence all together. Thusly, a compensation of Rs.1,50,000/- under the head of ‘legitimate costs’ was allowed. Hence, an aggregate sum of Rs. 11,50,000/- was allowed to the claimant under the head of ‘expense of litigation’.
v. INTEREST ON THE COMPENSATION
An examination of the operative part of the denounced judgment of the National Commission demonstrates that it has granted interest at the rate of 12% for each annum however just if there should be an occurrence of default by the specialists of AMRI Hospital to pay the compensation inside of 8 weeks after the judgment was conveyed on October 21, 2011. Accordingly, at the end of the day, the National Commission did not concede any interest for the long stretch of 15 years as the case was pending before the National Commission and this Court. Along these lines, the National Commission has submitted mistake in not granting interest on the compensation honored by it and the same is against different choices of this Court, for example, on account of Thazhathe Purayil Sarabi and Ors. v Union of India and Anr. as to of interest on a decree of installment this Court which held that while making a decree for installment of cash is qualified for interest at the present rate of premium or contractual rate as it considers sensible to be paid on the principal sum pronounced to be payable and/or granted, from the date of claim or from the date of the request or decree for recuperation of the outstanding dues
Further, in Kemp and Kemp on Quantum of Damages , the goal behind conceding interest, the Court said that the object of a court in granting interest to an effective disputant is to remunerate him for being kept out of cash which the court has found is legitimately because of him. That goal is anything but difficult to accomplish where it is clear that on a specific date the defendant should have paid to the plaintiff a discovered sum, for instance by method for reimbursement of an advance. The issues which emerge in personal injury and fatal accident cases in connection to recompenses of interest result from the truths that while, from one viewpoint, the cause of action gathers at the time of the accident, so compensation is payable as from that time, then again the proper measure of compensation can’t be evaluated in a personal injury case with any exactness until the state of the plaintiff has settled. Therefore, the National Commission in not awarding interest on the compensation amount from the date of filing of the original complaint up to the date of payment of entire compensation by the appellant-doctors and the AMRI Hospital to the claimant, has most unreasonable. Therefore, the interest on the compensation that is determined by this Court in the appeal filed by the claimant at the rate of 6% per annum on the compensation awarded in these appeals from the date of complaint till the date of payment of compensation awarded by this Court, was awarded. The sentence was in favour of the claimant.
vi. APPORTIONMENT OF THE COMPENSATION AND CONTRIBUTORY NEGLIGENCE
Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned.
In Para no. 123, the Supreme Court held that said interference of the complainant may be related and might have some role to play to determine the amount of compensation. Therefore, having held that complainant has interfered in treatment of Anuradha, NCDRC was inclined to deduct a sum equivalent to 10% from the above payable amount. The most intriguing task before NCDRC was, to apportion the liability to pay the awarded amount of compensation amongst the opposite parties. No straight jacket formula exists or perhaps can be laid down in a case where so many doctors and hospitals are found negligent in the treatment of patient. The Supreme Court has not indicated the criteria for apportionment of the compensation amongst the opposite parties but going by the findings of the Supreme Court in regard to the nature and extent of negligence in treatment on the part of the opposite parties and Dr. Abani Roy Chowdhury as enumerated in Para 158 to 166 of the judgment, we must apply a formula which appears just to us. Supreme Court has primarily found Dr. Sukumar Mukherjee and AMRI hospital guilty of negligence and deficient in service on several counts. Therefore, going by the said findings and observations of the Supreme Court, NCDRC considered it appropriate to apportion the liability of Dr. Sukumar Mukherjee and AMRI hospital in equal portion i.e., each should pay 25% of the awarded amount. Remaining half of the awarded compensation should be divided amongst Dr. B. Haldar and Dr. Balram Prasad and Dr. Abani Roy Chowdhury (heirs of whom have been given up by the complainant by forgoing his right to claim compensation from them).
Liability of Dr. Sukumar Mukherjee:
As regards the liability of Dr. Sukumar Mukherjee, it is his case that nowhere has this Court in Malay Kumar Ganguly’s decision hold the appellant Dr. Mukherjee and appellant-AMRI Hospital ‘primarily responsible’ for the death of the claimant’s wife.
Under the heading of ‘cumulative effect’, the appellant’s counsel has argued that his liability is not established by the Court. The paragraphs relied upon by Dr. Mukherjee as have been mentioned above are in relation to the culpability of the doctors for causing the death of the patient under IPC . It is imperative to mention here that the quantum of compensation to be paid by the appellant-doctors and the AMRI Hospital is not premised on their culpability under Section 304-A of IPC but on the basis of their act of negligence as doctors in treating the deceased wife of the claimant. When Dr. Mukherjee examined Anuradha, she had rashes all over her body and this being the case of dermatology; he should have referred her to a dermatologist. Instead, he prescribed ‘depomedrol’ for the next 3 days on his assumption that it was a case of ‘vasculitis’. The dosage of 120 mg depomedrol per day is certainly a higher dose in case of a TEN patient or for that matter any patient suffering from any other bypass or skin disease and the maximum recommended usage by the drug manufacturer has also been exceeded by Dr. Mukherjee. On 11.5.1998, the further prescription of depomedrol without diagnosing the nature of the disease is a wrongful act on his part. According to general practice, longacting steroids are not advisable in any clinical condition, as noticed hereinbefore. However, instead of prescribing a quick-acting steroid, the prescription of a long-acting steroid without foreseeing its implications is certainly an act of negligence on Dr. Mukherjee’s part without exercising any care or caution. It has already been stated by the experts and the authorities that a dose of 80-120 mg is not permissible. Furthermore, after prescribing a steroid, the effect of immune-suppression caused due to it, ought to have been foreseen. The effect of immune-suppression caused due to the use of steroids has affected the immunity of the patient and Dr. Mukherjee has failed to take note of the said consequences. It is also important to highlight in this judgment that the manner in which Dr. Mukherjee attempted to shirk from his individual responsibility both in the criminal and civil cases made against him on the death of the claimant’s wife is very much unbecoming of a doctor as renowned and revered as he is.
Liability of Dr. Kunal Saha:
The court arrived at determining the contribution of the claimant to the negligence of the appellant doctors and the AMRI Hospital in causing the death of his wife due to medical negligence. The National Commission has determined the compensation to be paid for medical negligence at Rs.1,72,87,500. However, the National Commission was opined that the interference of the claimant has also contributed to the death of his wife. The National Commission relied upon the judgment of this Court in Malay Kumar Ganguly’s Case to arrive at the aforesaid conclusion which said that it will be pertinent to note that even if there was interference by Kunal Saha during the treatment, it does not diminish the primary responsibility and default in duty on the part of the defendants. Despite a possibility of him playing an overanxious role during the medical proceedings, the breach of duty to take basic standard of medical care on the part of defendants is not diluted. To that extent, contributory negligence is not pertinent. It may, however, have some role to play for the purpose of damages.” Hence, holding the claimant responsible for contributory negligence, the National Commission deducted 10% from the total compensation and an award of Rs.1,55,58,750/- was given to the claimant. Interference cannot be taken to be an excuse for abdicating one’s responsibility especially when interference could also have been in the nature of suggestion. Even otherwise, considering the specific defence raised by them individually, interference by Kunal would merely amount to hearsay evidence and not direct evidence. The respondents also sought to highlight on the number of antibiotics which are said to have been administered by Kunal to Anuradha while she was in AMRI contending that the said antibiotics were necessary. Kunal then submitted that the said antibiotics were prescribed by the doctors at AMRI and he did not write any prescription. The court assumed that the said antibiotics had been administered by Kunal on his own, but it now stands admitted that administration of such antibiotics was necessary. To conclude, the court said that even if there was interference by Kunal Saha during the treatment, it in no way diminishes the primary responsibility and default in duty on part of the defendants. In spite of a possibility of him playing an overanxious role during the medical proceedings, the breach of duty to take basic standard of medical care on the part of defendants is not diluted. The court concluded that the National Commission committed an error in holding that the claimant had contributed to the negligence of the appellant doctors and the Hospital which resulted in the death of his wife when this Court clearly absolved the claimant of such liability and remanded the matter back to the National Commission only for the purpose of determining the quantum of compensation. The court set aside the finding of the National Commission and emphasized the finding of this Court that the claimant did not contribute to the negligence of the appellants-doctors and AMRI Hospital which resulted in the death of his wife.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, NCDRC held that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.17287500/- in the present case, out of which 10% amount on account of the contributory negligence of the complainant in the treatment of Anuradha must be deducted. That will make the net payable amount of compensation to Rs. 15558750/- (rounded to Rs. 15560000/). From this amount, further deduction of a sum of Rs. 2593000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them should be made. In view of the peculiar facts and circumstances of the case and as a special case, NCDRC have awarded a sum of Rs. 500000/- as cost of litigation in the present proceedings. The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner: Dr. Sukumar Mukherjee shall pay a sum of Rs.4040000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.3890000/- towards compensation and Rs.150000/- as cost of litigation]; Dr. Baidyanth Halder shall pay a sum of Rs. 2693000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs. 2593000/- towards compensation and Rs.100000/- as cost of litigation]; AMRI hospital shall pay a sum of Rs. 4040000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs. 3890000/- towards compensation and Rs.150000/- as cost of litigation]; and Dr. Balram Prasad shall pay a sum of Rs. 2693000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs. 2593000/- towards compensation and Rs.100000/- as cost of litigation]. The opposite parties were directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order (21.10.2011), failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
III. CRITICAL ANALYSIS:
The Supreme Court’s historic point judgment in the medical negligence case relating to Anuradha Saha is being talked about as watershed advancement. The Supreme Court’s decision to honor around Rs 11 crore as compensation to the offended party of the 15-year-old Anuradha Saha medical negligence case is welcome. The judgment and the compensation amount – the most noteworthy in India – highlights the issue of expanding medical negligence in the nation and ought to serve as a deterrent in comparable cases. There’s no denying that India’s social insurance division is fit as a fiddle. While public healing facilities and centers experience the ill effects of a woeful absence of infrastructure, private service suppliers have been blamed for profiteering and other exploitative practices. A frail administrative administration has prompted the ascent of an unholy nexus between specialists, healing facilities and analytic services. Henceforth, patients are left helpless before a dishonest framework with couple of choices. In such a situation, it turns out to be extremely troublesome for casualties and their kinfolk to demonstrate instances of medical negligence. Given the specialized way of the medical calling, careless demonstrations of exclusion or commission should be confirmed by kindred specialists who barely ever bolster the patient. In addition, casualties expect that reporting instances of misbehavior will deny them treatment in future. Subsequently, in this skewed doctor-patient relationship it’s the obligation of the framework to ensure the last mentioned. Improved financial compensation for demonstrated instances of medical negligence is a helpful method for offsetting the force mathematical statement between wellbeing service suppliers and conventional subjects. The contention that this will make specialists to a great degree mindful and expand treatment costs for patients doesn’t cut ice. While there’s a solid case for expanding medical coverage items and services all through the nation, the expense of medical negligence for casualties and their families is far more noteworthy. Minimal effort healthcare can’t be a substitute for quality healthcare. The Anuradha Saha judgment puts the onus of security, appropriate conclusion and treatment on the specialist – as it ought to be – as opposed to the patient.
...(download the rest of the essay above)