S Murlidharan

Medical negligence calls for fair treatment

S. MURLIDHARAN | Updated on November 13, 2013

Compensation should not be based on a hospital’s or victim’s income.

The Supreme Court has, in AMRI hospital Kolkata vs. Kunal Saha, asked the hospital to pay around Rs 11 crore, including interest, to the bereaved petitioner, Kunal Saha. Saha, an NRI doctor based in the US, moved the court after his wife unfortunately lost her life due to inappropriate medication for a seemingly harmless and superficial disease, skin rashes.

This has been hailed as a landmark verdict, one that would raise the bar on standard of care in Indian hospitals. Such punishment should work as a deterrent to medical negligence. But the moot issue is that punishment should be meted out in an even-handed manner.

WHY INCOME CRITERIA?

Just as in the bureaucracy, the approach, ‘‘show me the man and I will show you the rule’’, is unacceptable, the judicial system should not veer towards such a tendency — reserving harsh punishments for convenient whipping boys.

First, with due respect, would the Court have awarded such a punishment, had the charge of negligence not been against a private hospital with deep pockets?

To be sure, the apex court has kept in mind the observations made by the National Consumer Disputes Redressal Commission (NCDRC) that the complainant was trying to make a fortune out of a misfortune. He pitched his claim sky high — Rs 177 crore that included whopping amounts towards mental agony, loss of job in the aftermath of his wife’s sad demise, among other issues.

The apex court did not heed his prayer to quash the consumer court’s observations. But the point nevertheless remains as to whether the Court would have awarded such a large compensation against a lesser hospital or a private practitioner with limited means?

The question is pertinent in a situation where malpractice insurance is yet to take off in a big way.

Second, just as the compensation awarded should not depend upon the paying capacity of the wrongdoer, it should also not vary with the status of the victim.

Here was a dogged NRI who went through the grind, making several trips to India from the US. The apex court agreed with his contention that the compensation amount in the case of foreigners visiting India should not be based on the Indian milieu, but on the foreign country where the victim lived.

In the event, the Supreme Court granted the compensation with reference to what the victim was earning in the US at the time of her untimely death — $30,000 per year. One shudders to imagine what would happen, should an American rock star or an American pinstriped banker drawing a princely salary become a victim.

The Indian hospital would in all probability go bust. The apex court has unwittingly opened a Pandora’s Box.

AGE ALONE MATTERS

Third, the larger issue is that a victim is a victim. A human life has been lost, period. If this is conceded, the compensation amount ought not to vary depending on the country the victim hailed from, or the last income drawn.

The Motor Vehicles Claims Tribunals in India award compensation to third-party victims based on their age and vocation at the time of mishap. While age should be factored in, given that the one dying in her prime causes enormous financial losses to the bereaved family in addition to the emotional stress, calculating compensation on the basis of the last vocation pursued is patently unfair.

It puts a premium on the lives of film stars, though they have a limited working life, and professionals such as doctors and lawyers, though in a perverse way it penalises black money earners ironically at the wrong time! (Those not reporting their income truthfully obviously would get a lesser compensation).

The Tribunal’s formula begs an important question — what if the third-party victim was not employed due to his tender age or otherwise.

In any case, it is wrong to condemn a person to his/her current vocation and salary, since every human being aspires for constant improvement in her standard of living. The family of a victim of air crash receives vastly higher compensation vis-à-vis the family of a victim of a rail accident.

The point is — compensation should not depend upon the mode of travel or the victim’s employment status. Age, and age alone, should be the criterion.

PENALISING DOCTORS

Fourth, why are doctors singled out for the dog-house status? To be sure, a doctor evokes immense anguish when his slipshod work snuffs out a life.

But that should not be reason enough to mete out severe punishment only to the medical profession vis-à-vis other professions. A lawyer derelict in his duties is never pulled up either by his clientele or by the professional body he belongs to.

This is perhaps why the US has a system of outcome-based fees for lawyers. In other words, wherever compensation is the issue, the lawyer in the US is paid a percentage of the award.

The Indian law frowns on this. There is no reason why it should. To be sure, a chartered accountant should not be paid his fees on the basis of profits reported, lest he becomes privy to cooking up of accounts.

The point, however, is different. Shouldn’t we strive towards a system of compensation which is even-handed, one which treats professions and their victims alike?

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Published on November 13, 2013
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