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MEDICAL NEGLIGENCE CASES AND LAW

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Sunday, 10 November 2013

Anuradha Shaha Medical Negligence Case Judgment by Supreme Court of India

Medical Negligent Historical Case Judgment by Supreme Court of India- Anuradha Shaha Case. The appellant-doctors are aggrieved by the quantum of compensation awarded by the National Commission and the liability fastened upon them for the negligence on their part and have prayed to set aside the same by allowing their appeals. In so far as the appellant-AMRI Hospital is concerned, it has also questioned the quantum of compensation awarded and has prayed to reduce the same by awarding just and reasonable compensation by modifying the judgment by allowing its appeal.

So far as the claimant is concerned, he is aggrieved by the said judgment and the compensation awarded which, according to him, is inadequate, as the same is contrary to the admitted facts and law laid down by this Court in catena of cases regarding awarding of compensation in relation to the proved medical negligence for the death of his wife Anuradha Saha (hereinafter referred to as the ‘deceased’) The brief relevant facts and the grounds urged on behalf of the appellant-doctors, AMRI Hospital and the claimant in seriatim are adverted to in this common judgment for the purpose of examining the correctness of their respective legal contentions urged in their respective appeals with a view to pass common judgment and award.

Brief necessary and relevant facts of the case are stated hereunder:

The claimant filed Original Petition No. 240 of 1999 on 09.03.1999 before the National Commission claiming compensation for Rs.77,07,45,000/- and later the same was amended by claiming another sum of Rs.20,00,00,000/-. After the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee[1] was remanded by this Court to the National Commission to award just and reasonable compensation to the claimant by answering the points framed in the said case, the National Commission held the doctors and the AMRI Hospital negligent in treating the wife of the claimant on account of which she died. Therefore, this Court directed the National Commission to determine just and reasonable compensation payable to the claimant. However, the claimant, the appellant-Hospital and the doctors were aggrieved by the amount of compensation awarded by the National Commission and also the manner in which liability was apportioned amongst each of them. While the claimant was aggrieved by the inadequate amount of compensation, the appellant-doctors and the Hospital found the amount to be excessive and too harsh. They further claimed that the proportion of liability ascertained on each of them is unreasonable. Since, the Court; we intend to produce their contentions in brief as under:

On granting the quantum of compensation based on the income of the deceased:

It is the claim of the learned counsel on behalf of the appellant-doctors and the Hospital that there is no pleading in the petition of the claimant that the deceased had a stable job or a stable income, except in paragraph 2A of the petition which states that the deceased was a Post-Graduate student and she had submitted her thesis. The only certificate produced by the claimant shows that she was just a graduate in Arts (English). Further, it is urged by the learned counsel that the document produced by the claimant - a computer generated sheet, does not explain for what work the remuneration, if at all was received by the deceased. Also, whether the same was a onetime payment of stipend or payment towards voluntary work, is not explained by the claimant. Further, it is stated by the learned counsel that there is no averment in the petition of the claimant as to on what account the said payment was received by the deceased and whether she has received it as a Child Psychologist as claimed by the claimant or otherwise.

It is also the case of the appellant-doctors and the Hospital that the claimant had not led any oral evidence with regard to the income of the deceased and further he has not explained why just a single document discloses the payment made sometime in the month of June 1988 in support of the income of the deceased when admittedly, the couple came to India in the month of March-April, 1998. Therefore, the learned counsel for the appellant-doctors and the Hospital have urged that the said document is a vague document and no reliance could have been placed by the National Commission on the same to come to the conclusion that the deceased in fact had such an income to determine and award the compensation as has been awarded in the impugned judgment and order. From a perusal of the said document, it could be ascertained that it shows just one time payment received for some odd jobs. Therefore, it is contended by the appellant-doctors and the Hospital that the claimant has not been able to discharge his onus by adducing any positive evidence in this regard before the National Commission.

It is further contended by the learned counsel that the assertion of the claimant in the petition and in his evidence before the National Commission that the income of the deceased was $30,000 per annum is not substantiated by producing cogent evidence. No appointment letter of the deceased to show that she was employed in any organization in whatsoever capacity had been produced nor has the claimant produced any income certificate/salary sheet. No evidence is produced by the claimant in support of the fact that the deceased was engaged on any permanent work. No Income Tax Return has been produced by the claimant to show that she had been paying tax or had any income in U.S.A.

It is further submitted that even if it is assumed that the annual income of the deceased was $30,000 per annum, apart from deduction on account of tax, it is also essential for the National Commission to ascertain the personal living expenses of the deceased which was required to be deducted out of the annual income to determine the compensation payable to the claimant. The National Commission was required to first ascertain the style of living of the deceased-whether it was Spartan or Bohemian to arrive the income figure of $30,000 per annum. In India, on account of style and standard of living of a person, one–third of the gross income is required to be deducted out of the annual income as laid down in the decision of this Court in the case of Oriental Insurance Company Ltd. Vs. Jashuben & Ors[2].

It is further contended by the learned counsel for the appellant-doctors and the Hospital that no yardstick is available about the expenditure of the deceased in the U.S.A. The claimant has not adduced any evidence in this regard. The evidence given by the so-called expert, Prof. John F. Burke Jr. also does not say anything on this score. Even if it is assumed that the annual income of the deceased was $30,000 per annum for which there is no evidence, 25% thereof is required to be deducted towards tax. The deduction of tax is much more as is apparent from the case reported in United India Insurance Co. Ltd. & Others Vs. Patricia Jean Mahajan & Ors[3]. In fact, the claimant has neither adduced any evidence in this regard nor has he produced the relevant statute from which the percentage of tax deduction can be ascertained. The Civil Appeal No. 2866/2012 filed by the claimant-Dr.Kunal Saha is also partly allowed and the finding on contributory negligence by the National Commission on the part of the claimant is set aside. The direction of the National Commission to deduct 10% of the awarded amount of compensation on account of contributory negligence is also set aside by enhancing the compensation from Rs.1,34,66,000/- to Rs.6,08,00,550/- with 6% interest per annum from the date of the complaint to the date of the payment to the claimant. The AMRI Hospital is directed to comply with this judgment by sending demand draft of the compensation awarded in this appeal to the extent of liability imposed on it after deducting the amount, if any, already paid to the claimant, within eight weeks and submit the compliance report.

CONSUMER DISPUTES REDRESSAL AGENCIES

1. Establishment of Consumer Disputes Redressal Agencies.—

There shall be established for the purposes of this Act, the following agencies, namely:—

a Consumer Disputes Redressal Forum to be known as the "District Forum" established by the State Government in each district of the State by notification: Provided that the State Government may, if it deems fit, establish more than one District Forum in a district

a Consumer Disputes Redressal Commission to be known as the "State Commission" established by the State Government in the State by notification; and a National Consumer Disputes Redressal Commission established by the Central Government by notification.

2. Composition of the District Forum. —

Each District Forum shall consist of,—

a person who is, or has been, or is qualified to be a District Judge, who shall be its President; two other members, one of whom shall be a woman, who shall have the following qualifications, namely:—

be not less than thirty-five years of age, possess a bachelor's degree from a recognised university, be persons of ability, integrity and standing, and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration: Provided that a person shall be disqualified for appointment as a member if he — has been convicted and sentenced to imprisonment for an offence which, in the opinion of the state Government involves moral turpitude; or is an undischarged insolvent; or is of unsound mind and stands so declared by a competent court; or has been removed or dismissed from the service of the Government or a body corporate owned or controlled by the Government; or has, in the opinion of the state Government, such financial or other interest as is likely to affect prejudicially the discharge by him of his functions as a member; or has such other disqualifications as may be prescribed by the State Government;

A. Every appointment under sub-section (I) shall be made by the State Government on the recommendation of a selection committee consisting of the following, namely:—

the President of the State Commission — Chairman.

Secretary, Law Department of the State — Member.

Secretary incharge of the Department dealing with consumer affairs in the State —Member. Provided that where the President of the State Commission is, by reason of absence or otherwise, unable to act as Chairman of the Selection Committee, the State Government may refer the matter to the Chief Justice of the High Court for nominating a sitting Judge of that High Court to act as Chairman.

2. Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years, whichever is earlier:

Provided that a member shall be eligible for re-appointment for another term of five years or up to the age of sixty-five years, whichever is earlier, subject to the condition that he fulfills the qualifications and other conditions for appointment mentioned in clause (b) of sub-section (1) and such re-appointment is also made on the basis of the recommendation of the Selection Committee:

Provided further that a member may resign his office in writing under his hand addressed to the State Government and on such resignation being accepted, his office shall become vacant and may be filled by appointment of a person possessing any of the qualifications mentioned in sub-section (1) in relation to the category of the member who is required to be appointed under the provisions of sub-section (1A) in place of the person who has resigned: Provided also that a person appointed as the President or as a member, before the commencement of the Consumer Protection (Amendment) Act, 2002, shall continue to hold such office as President or member, as the case may be, till the completion of his term.
The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the members of the District Forum shall be such as may be prescribed by the State Government.

Provided that the appointment of a member on whole-time basis shall be made by the State Government on the recommendation of the President of the State Commission taking into consideration such factors as may be prescribed including the work load of the District Forum.

DO'S FOR DOCTORS

Accept the changes and challenges in the practice of medicine.

Do right things, have a clear conscience.

Communicate in compassionate and sensitive way.

Listen attentively, look carefully and always face the patient.

Finances and Bills should be explained properly.

Maintain proper records including refusals.

Attend regularly and personally, whether a patient or a case in CPA.

Take due cognizance and reply in time Inform the Insurance Company. Get an indemnity policy. Continue follow-up treatment of the patient

Take the help of a legal, medico-legal expert while filing the reply.

Produce affidavits of colleagues and ask for expert witness whenever necessary. Give references relevant to case and demand cross examination.

Try to explain any misunderstanding or misrepresentation by giving proper examples. Queries must be solved.

Ask for counter compensation.

Update not only your knowledge and skill but also that your staff. Update the facilities and instruments. Attend workshops, conferences, CMEs etc. Stay calm; avoid surprises, anger, panic and self doubt.

Be aware of the so-called "social workers" and "ambulance chaser advocates".

Inform Police whenever necessary.

Extend all possible co-operations to the Police.

Furnish copies of medical records to Police, court or relatives whenever demanded. Consent of patient may be taken while providing information to Police.

Follow the legal procedures or provisions.

Have a valid informed consent for the treatment.

Preserve the documents, records especially in medico-legal, controversial or complicated cases. Give guarded prognosis.

Adjust the doses of drugs according to weight especially in children with renal/hepatic disorders.

Advice pathological, radiological tests in writing.

Insist for post-mortem examination if the cause of death can't be ascertained.

Involve medical associations, medico-legal cells, voluntary organizations etc., whenever legal problem arises.

Consult your Lawyer before giving any reply.

Record the history of drug allergy.

If the patient was examined hurriedly, ask him to come for review next day.

If the diagnosis is not confirmed, mention "diagnosis under review".

Avoid vague, non-specific terminologies or short forms.

Explain treatment modalities whenever required especially in complicated cases.

Give/write instructions in comprehensive local language.

In case of any deviation from standard practice, mention the reasons.

When you are not sure, consult your senior, colleague or specialist.

Refer to higher center whenever necessary.

DONT'S FOR DOCTORS

Ignore or disrespect the courts.

Neglect our duties as doctor.

Volunteer to handover the documents unless specifically asked for.

Rely entirely on your Advocates.

Give unnecessary details.

Get panicky or frightened simply because there is case in Consumer Forum.

Use vague or non-specific terminology.

Behave in a rude, rough or inhuman manner.

Avoid communicating with patients or relatives.

Hesitate in consulting your Senior or colleagues especially in difficult cases.

Over-prescribe or under-prescribe. Don't prescribe with out examining the patient. Don't accept substitutes.

Exceed your level of competence or field of specialization. Don't be overconfident.

Talk loose about your colleagues, may be you would have done same thing at that moment making an error of judgment. You never know under what circumstances this had happened.

Manipulate or tamper with the documents.

Do unlawful or unethical acts.

Experiment with patients.

Issue false or bogus certificates. Certificate was issued on request is no defense.

Neglect the treatment while completing legal formalities especially in serious or emergency situation. Don't allow modern diagnostic tests to substitute your clinical acumen.

Over investigate.

Prescribe multiple drugs, i.e., "shotgun therapy".

DOCTORS

Being a part of a big industry, doctors are always expected to work within a legal format cases.

Doctors are expected to keep self updated with all the advances or developments in their field.

They are prone to number of cases, under many laws and acts which government brings time to time to track down the illegal movements in any industry.

With the spread of literacy and growth of general awareness about health related matters among the masses, there has been an increase in the number of cases taken to the court.

This change is fast gaining ground in developing countries and fastest in India. Around 1 Lac matters are pending in the form of different cases all over India. It is the rise of such incidents that has induced fear among the doctors.

Rather than immediately proceeding to the prescription, the doctors have prolonged the process of diagnosis by involving people of different specialties and administering a series of tests.

The fear of law has begun to affect the professional lives of Doctors.