[mks_dropcap style=”letter” size=”52″ bg_color=”#ffffff” txt_color=”#000000″]N[/mks_dropcap]egligence is merely the failure to exercise due car. The three ingredients of negligence are as follows:

  1. The defendant owes a duty of care to the plaintiff.
  2. The defendant has breached this duty to care
  3. The plaintiff has suffered an injury due to this breach.

Medical negligence is no different. It is well known that a doctor owes a duty of care to his patients. The duty can either be a contractual duty or a duty arising out of tort law. The duty owed by a doctor towards his patient, in the words of the Supreme Court is to ‘bring to his task a reasonable degree of skill and knowledge’ and to exercise ‘a reasonable degree of care’ (Laxman Balkrishna Joshi v. Trimbak Bapu Godbole). A doctor doesn’t have to ensure that every patient who comes to him is cured.  He only has to ensure that he confers a reasonable degree of care and competence.

The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctors, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty.

Doctors are revered in India. They are treated next to God. However, with the recent judgement of Anuradha Saha’s Medical Negligence case, we are not at the mercy of a medical establishment that both plays God and Shylock, trying to extract every pound of flesh from its patients but remaining completely unaccountable at the same time.

ANURADHA SAHA’S CASE OF MEDICAL NEGLIGENCE

Kunal Saha, a graduate from NRS Medical College, Kolkata in 1985 and went on to America for his further studies. He did his PhD from the University of Texas, is now an MD and specializes in HIV/AIDS research. He met Anuradha Saha by sheer co-incidence and their story unfolded into a fairy-tale love story.

Chasing the American dream, they were finally settling down in Columbus and Anuradha Saha wanted to visit Kolkata before starting a new phase of life. Little did they know that how their life was about to change forever in the next few days.

It was during the visit to Kolkata that Anuradha Saha developed a mild rash from an allergic reaction to a drug. The type she had is medically known as “toxic epidermal necrolysis” (TEN), which could happen as an allergic reaction to almost any drug or non-drug like vitamins and even gin and tonic. For treatment she consulted Dr. Sukumar Mukherjee, who was quite well known as one of the best doctors in the city. Dr. Mukherjee advised a drug called ‘Depomedrol’, in a manner which was truly baffling. ‘Depomedrol‘ is a long standing drug normally used for extreme cases of asthma or arthritis, and given at a maximum dose of 40-120 mg at 1-2 weeks interval. However, Anuradha was given that about 15 times its normal usage.

A well-known physician Dr. Sukumar Mukherjee prescribed a drug for her and she was later admitted to the AMRI hospital under the care of three other physicians. Soon her skin started to peel off and she is diagnosed with a life-threatening condition caused by a drug reaction. She was airlifted to Breach Candy hospital in Mumbai where she breathed her last.

THE FIGHT AND THE JUDGEMENT

The 15-year long course in the much anticipated legal battle in the Anuradha Saha death case for which countless victims of “medical negligence” have been waiting with bated breath has finally come to an end when the Apex Court bench of Justices Mr. C.K. Prasad and Mr. V.G. Gowda concluded the final hearing and kept the judgment reserved. This case involves the wrongful death of Anuradha Saha, US-based child psychologist, died from gross medical negligence by several top Kolkata doctors (Sukumar Mukherjee, Baidyanath Halder, late Abani Roychowdhury and Balaram Prasad) and AMRI Hospital in Kolkata during a social visit to India in 1998. After a long and seemingly impossible legal battle for more than a decade, Supreme Court eventually held the Kolkata doctors/hospital responsible for Anuradha’s death in 2009 and remanded the case back to the National Consumer Commission (NCDRC) only for determination of the quantum of compensation to be paid by the Kolkata doctors/hospital.

On October 21, 2011, NCDRC awarded a total of Rs. 1.7 crores compensation against the Kolkata doctors and AMRI Hospital but deducted more than Rs. 40 lakh on ground of alleged “interference” by Dr. Saha (although Apex Court held only the Kolkata doctors/hospital guilty for Anuradha’s death) and also due to the death of one of the guilty doctors, Dr. Roychowdhury.  Although this was the highest compensation ever awarded in India for death of a patient due to “medical negligence”, Dr. Saha has challenged the said order passed by NCDRC on numerous grounds including the fact that the NCDRC did not follow settled principles for calculating compensation in “medical negligence” cases while dismissing more than 98% of Dr. Saha’s claim.  The NCDRC also used the “Multiplier” method for calculation of compensation which has never been used any case of “medical negligence” until now.

The Supreme Court gave a patient hearing to all parties over a period of two weeks.  While several senior advocates (Mr. Vijay Hansaria, Mr. Ramji Srinivasan) appeared on behalf of the guilty doctors and AMRI Hospital, Dr. Saha appeared in person to argue on his own behalf.  Many new concepts that prevail for the victims of “medical negligence” in developed countries including compensation for “punitive damages” and “inflation” were strenuously argued before the Apex Court.  The Apex Court was also urged to frame new guidelines for determination of “just compensation” for the victims of medical malpractice.  Dr. Saha has already testified that apart from his personal legal expenses, the entire award for death of Anuradha, which now stands  more than Rs. 200 crores including interest, would be donated for promotion of better healthcare and for the poor children of India.

The Supreme Court’s landmark judgment in the medical negligence case pertaining to Anuradha Saha is being spoken of as a watershed development. The Supreme Court’s decision to award around Rs 11 crore as compensation to the plaintiff of the 15-year-old Anuradha Saha medical negligence case is welcome. The judgment and the compensation amount – the highest in India – highlight the problem of increasing medical malpractice in the country and should serve as a deterrent in similar cases. There’s no denying that India’s healthcare sector is in poor shape. While public hospitals and clinics suffer from a woeful lack of infrastructure, private service providers have been accused of profiteering and other exploitative practices. A weak regulatory regime has led to the rise of an unholy nexus between doctors, hospitals and diagnostic services. Hence, patients are left at the mercy of a venal system with few alternatives.

In such a scenario, it becomes very difficult for victims and their kin to prove cases of medical negligence. Given the technical nature of the medical profession, negligent acts of omission or commission need to be verified by fellow doctors who hardly ever support the patient. Besides, victims fear that reporting cases of malpractice will deny them treatment in future. Thus, in this skewed doctor-patient relationship it’s the duty of the system to protect the latter. Enhanced monetary compensation for proven cases of medical negligence is a useful way of balancing out the power equation between health service providers and ordinary citizens.

The argument that this will make doctors extremely cautious and increase treatment costs for patients doesn’t cut ice. While there’s a strong case for increasing health insurance products and services throughout the country, the cost of medical negligence for victims and their families is far greater. Low-cost healthcare cannot be a substitute for quality healthcare. The Anuradha Saha judgment puts the onus of safety, proper diagnosis and treatment on the doctor – as it should be – rather than the patient.