Viraj Shergill, a well known and sought-after stuntman in Hollywood, gets injured while performing a stunt. Dr Simrita conducts a surgery on Viraj, during which she forgets her watch inside his abdomen. It is during the climax scenes that he realizes that Dr Simrita had left her watch inside his stomach. But by then it is too late – Viraj has already fallen in love with Simrita. Yes, you guessed it right. This is the story of the movie Kambhakth Ishq. Sadly this happens only in movies. You cannot always fall in love with the doctor who stuffed your stomach with random objects. The situation can get really bad when people die due to the negligence of the medical practitioners. What remedy can you get if you are a victim?
Compensation in Medical Negligence cases: A quick survey
In most cases the remedy for a victim of medical negligence through a Consumer Court would be to get compensated. But how is this compensation fixed? You cannot fix a value to your dear ones in terms of money. Can you? The Consumer Court has formulated a method to calculate, a not so accurate but fair, compensation amount. Let us read more on this below.
How is the Compensation amount decided?
There are a lot of factors including pecuniary factors like loss of future earnings (if the victim is dead or disabled), medical expenses incurred, future medical expenses (if the victim still requires medical assistance), cost of litigation etc. and non pecuniary factors like compensation for the pain and suffering, non-enjoyment of life, shortening of life expectancy etc.
Calculating the loss of future earnings is a complex process. The Supreme Court in Sarla Verma & Ors. Vs. Delhi Transport Corp.& Anr has laid down the three step process through which this can be calculated. The first step would be to calculate the ‘multiplicand’ (a number that is to be multiplied with another – in 2 * 5, 5 is the multiplicand). In this step the annual income of the deceased or the injured is calculated. The deceased/injured would have spent on himself is deducted. The balance is the Multiplicand.
Step 2 is to determine the Multiplier. In this step an estimate is made on the years of active career of the person. From this, some years are deducted under heads like imponderables in life, uncertain economic factors etc. The resulting number is the multiplier. For example if x, dies at the age of 35, and if his expected period of active service is estimated to be till 60 years, then the multiplier would be 25. From this, let’s say, 7 years are deducted under imponderables in life and economic factors, then the final multiplier will become 18.
The third step is to multiply the Multiplicand with the multiplier, which will give the compensation amount under Loss of future earnings. The pecuniary factors can be, to an extent, accurate but the non pecuniary factors cannot be accurate. You cannot measure the mental sufferings and give a value to it. The courts usually fix an amount which it deems will compensate the non pecuniary damages.
These factors vary depending on the nature of the cases. For example in the case where a person has fully recovered from the damages caused due to the medical negligence, he may not be given compensation for loss of future earnings. Similarly if the medical expense of the victim is covered by a third party, for example, if it is covered by the company he works in, then he might not get compensation for medical expenses.
Now, let us discuss some real incidents. The first one is the case of Dr Kunal Saha v. Dr. Sukumar Mukherjee and Ors. Anuradha Saha, wife of the complainant was diagnosed with TEN, a serious skin disease. She was admitted in the AMRI hospital, Kolkata. Later since there was no improvement in her condition, rather it was getting bad; she was shifted to Breach Candy Hospital, Mumbai, where she breathed her last. Dr. Kunal Saha filed a complaint at the National Consumer Commission, seeking compensation, against the Doctors of AMRI hospital and also the directors of the hospital for being grossly negligent while treating his wife. The compensation sought by the complainant was an amount of Rs.77 crore. The National Commission dismissed the complaint on the ground that whatever happened was beyond the capacity of the doctors.
The Supreme Court overruled the decision of the Consumer commission. It held the AMRI and the accused doctors liable for medical negligence. The case was then sent back to the National Consumer Commission to decide the compensation amount. The National Commission, awarding a record amount as compensation fined the Hospital and the accused doctors with an amount of Rs. 1, 73,000,000. See our article here.
In another case, Prasanth S. Dhananka, an engineering student from Andhra Pradesh approached the Nizam Institute of Medical Sciences (NIMS) complaining of recurring fever. After conducting a lot of tests, it was revealed that he has a small tumor in his ribs. An operation was conducted to remove the tumor, after which Prashanth became completely paralyzed
A complaint was filed before the National Consumer Commission alleging the Doctors of NIMS to be negligent, seeking a compensation of Rs. 7.5 crore. The National Commission finding the doctors guilty of committing medical negligence, awarded Prashanth a compensation of Rs. 1,05,00,000. The Supreme Court affirmed this decision. See here.
The two cases mentioned above saw the first and second highest compensation amount ordered by the Consumer Commission in a medical negligence case. There are many other cases in which the Consumer Courts awarded high compensation to the victims of medical negligence. See here New India Assurance Co. Ltd./ Dr. K. K. Mittal v. Virender Singh & Ors, Shri Subhash Chand v. M. D. Jaipur Golden Hospital
In most medical negligence cases the consumer court has awarded compensation less than the amount asked for by the complainant. One can argue that since it is the complainant who has suffered all the physical and mental damages, he is the best person to determine the compensation he needed. But there are times people ask for unreasonable amounts or may think that a particular amount is reasonable, when it is actually not. You will always over value yourself or your loved ones. So better leave it to the courts to decide and hope that you’ll get a fair compensation. Or maybe, not go for a case and fall in love with the doctor.
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