Notes

2009 June - Note 8

Compensation in medical negligence – Changing legal scenario

Law keeps on changing as it has to adjust with the changes happening in society. These changes may at times be comforting while at times a source of concern. Two recent judgments of the Supreme Court, both delivered in 2009, very aptly illustrate the aforesaid. On February 17, 2009, in the case of Martin F. D’Souza v/s Mohd. Ishfaq (a13/j33; February 2009), the Supreme Court issued stringent directions to consumer and criminal courts, prohibiting them from proceeding against doctors in cases of medical negligence without getting a second medical opinion. This judgment effectively saved the doctors from unwanted and frivolous litigation. On the other hand, on May 14, 2009, in the case of Nizam Institute of Medical Sciences v/s Prasanth S. Dhanaka & Ors. (a63/j181; June 2009), the amount of compensation awarded by the Supreme Court to a patient for medical negligence – one crore – was something much beyond expectation in the legal history of India.

The message that comes from these two judgments is clear. Doctors should not be unnecessarily troubled and should be given complete protection from false and frivolous cases. However, those who are found negligent will nonetheless have to pay a heavy price.

The case of Nizam Institute of Medical Sciences v/s Prasanth S. Dhanaka & Ors (a63/j181; June 2009),  along with two other important cases on compensation in medical negligence, has been published in this issue, viz. Sudha Garg v/s Union of India (a68/j199; June 2009), decided by Delhi High Court and Zeba Hamid v/s Hajela Hospital & Ors. (a70/j209; June 2009), decided by Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal. The relevance of these cases to doctors and the changes that they have bought about in the existing law on compensation are discussed here.

In civil laws, the wronged party is entitled to ‘compensation’ and ‘damages’ which are both quantified in money. This compensation or damage can be claimed by the patient under any one or all of the following three heads:

• Law considers the relationship between a doctor and a patient as a ‘contract’ and negligence of a doctor as a ‘breach of contract’ for which the patient is entitled for compensation. The patient has to approach a civil court.
• Law also considers negligence as a ‘tort’, that is, a civil wrong and the wronged party, that is, the patient in the case of medical negligence is entitled for ‘damages’. Here also, the patient has to approach a civil court.
• The Consumer Protection Act, 1986 – a special law is another avenue commonly used by the patients who are aggrieved by medical negligence. The patient is considered as a ‘consumer’ and the doctor as a ‘service provider’; and negligence as a ‘deficiency in service’ for which the patient is ‘compensated’ by the doctor.

Let us consider the aforementioned three judgments individually.

Nizam Institute of Medical Sciences vs Prasanth S. Dhanaka & Ors. (a63/j181; June 2009)
The practical implications of this case on the medical fraternity can be broadly categorized as follows:

1. The court awarded a sum of one crore to the patient. In the forthcoming days, with patients coming from a higher income bracket and inflation, this amount is bound to increase. Doctors should be ready to pay a higher amount of compensation in appropriate cases. This means paying a higher premium to get insured for a higher sum. Hospitals will also have to rework their insurance cover under these changed circumstances.
2. The court took into consideration the patient’s brilliant career, present earning capacity and also the loss of future earnings. Doctors will now have to take into consideration the background, career prospects and financial capacity of the patients who usually visit them and then decide on the professional indemnity. In America, higher compensation has lead to a situation where some doctors have refused to treat well-to-do patients or deal with a complicated case.
3. The court has granted compensation to the patient for driver-cum-attendant, nursing care and physiotherapy. In the forthcoming days, patients will ask for compensation under new heads taking help from this judgment. Although this factor will come into play in deciding the amount of compensation and that too after the court holds a doctor guilty of medical negligence, these various heads of compensation will have to be taken into account for insurance purpose.
4. The court rejected as hypothetical the claim of the patient that 2 crores should be deposited in his name that can be used if in future any development in medical science could improve his quality of life. But if there was any such treatment would the courts have allowed compensation under this head? Theoretically, the expenses incurred by the patient for treatment of the injury caused by the negligent act of the doctor has to be borne by the doctor as part of compensation. And if this treatment is new, in some other part of the globe and very expensive what would be the response of the court? The final word is yet to come from Indian courts.

Sudha Garg vs Union of India (a68/j199; June 2009)
This case was not filed in consumer court but in civil court for ‘tort’ or civil wrong and an amount of about Rs. 12 lakh was granted as compensation to the patient.

This case points out  two very important aspects from a doctor’s viewpoint, viz.

1. Cases for negligence can be filed against doctors in civil courts also. The patient can go to civil court simultaneously with consumer court and can get compensation from both the courts. Patients usually do not go to civil courts because hefty court fees have to be paid and the judgment comes after years of waiting.
2. Civil courts award compensation for further treatment that is required due to the negligent medical act and also ‘damages’ for pain and suffering of the patient.

Zeba Hamid vs Hajela Hospital & Ors. (a70/j209; June 2009)
In this case, the patient who was treated for infertility did conceive after the treatment, but the hospital was found negligent for not taking consent. The court clearly recorded that even if the patient may have benefited from the treatment; the hospital was ‘technically’ negligent and hence granted marginal compensation to the patient.

There are two important aspects relevant to doctors, viz.:

1. Doctors carry a wrong notion that if the patient is relieved of his or her ailment, then the doctor cannot be negligent. Technical acts that have nothing to do with the science of medicine, but are prescribed by law, have to be followed; otherwise the doctor is legally negligent. Consent and confidentiality are two purely technical and nonmedical acts that give rise to maximum number of cases of negligence against doctors.
2. Indian courts are very conservative in awarding compensation for   technical negligence.

     
In a nutshell, the upper limit of compensation has been raised and newer grounds for claiming compensation have been acknowledged by the Supreme Court, civil cases remain a potential forum for pursuing cases of medical negligence, and doctors can be technically negligent even if the patient has benefited from the treatment but the courts grant nominal compensation.