Medical Compensation In India INTRODUCTION

Negligence is the breach of a legal duty to care. It means carelessness in a matter in which the law mandates carefulness. Persons who offer medical advice and treatment implicitly state that they have the skill and knowledge to do so, that they have the skill to decide whether to take a case, to decide the treatment, and to administer that treatment. This is known as an implied undertaking on the part of a medical professional.1 A breach of this duty gives a patient the right to initiate action against negligence. Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient. Professional negligence or medical negligence may be defined as want of reasonable degree of care or skill or willful negligence on the part of the medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established, so as to lead to bodily injury or to loss of life.2 Professional negligence: meaning and concept Negligence is culpable carelessness- conduct which involves an unreasonably great risk of causing harm to another. Negligence excludes wrongful intention since negligence and wrongful intent are mutually exclusive. No result which is due to carelessness can have also been intended. Nothing which was intended can have been due to carelessness. The question in every case would be whether the medical practitioner in fact attained the degree of due care established by law. Alderson B. defined negligence- "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."
1 2

Murthy, K.K.S.R., Medical Negligence and the Law, Indian Journal of Medical Ethics, Vol. 3, July-Sept, 2007. See, http://www.helplinelaw.com/docs//main, retrieved on 2.5.2009.

The American Restatement of Torts defines it as "Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm."3 In England, there are no degrees of negligence though some authorities did differentiate between gross negligence (culpa lata) from slight negligence (culpa levis) These distinctions were based partly upon Roman law and partly upon the misunderstanding of it. The distinctions are no longer used by courts and a single standard of negligence is used in England. Liability of the doctors is of following types: 1. Civil Liability and, (a) Liability under Torts (b) Liability under Consumer Protection Act. 2. Criminal Liability. 3. Disciplinary Action under Indian Medical Council Act, 1956 In 1995, the Supreme Court decision in Indian Medical Association v. V.P. Shantha4 brought the medical profession within the ambit of a 'service' as defined in the Consumer Protection Act, 1986.

The court held that: "In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control." As a result of this judgment, medical profession has been brought under Section 2(1) (o) of Consumer Protection Act, 1986 and also, it has included the following categories of doctors/hospitals under this Section: 1. All medical / dental practitioners doing independent medical / dental practice unless rendering only free service.
3 4

See, www.healthlibrary.com, retrieved on 2.5.2009. AIR 1996 SC 550.

2. Private hospitals charging all patients. 3. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals. 4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.

Further, this judgment concedes that the summary procedure prescribed by the Consumer Protection Act, 1986 would suit only glaring cases of negligence and in complaints involving complicated issues requiring recording of the evidence of experts, the complainant can be asked to approach the civil courts.

Damages Paid in medical negligence The Supreme Court in the case of Minu B. Mehta vs. B.R. Nayar
5

has held that the right to

receive compensation can only be against a person who is bound to compensate due to his failure to perform a legal obligation. In many cases doctors have been held liable for negligent acts, such as removal of a wrong eye or a kidney, based on pecuniary interest or where minimum facilities were available. Sums paid in compensation are normally referred to as damages, and are meant as financial restoration of the victim to the equivalent of his state before the negligence supervened. Medical negligence is something that is penalized the world over. When a patient goes in for a medical procedure, the person is entrusting their lives to the doctor (s) attending on them. It used to be said earlier that a Doctor is a very respected person, and that it would be unfair to penalize a doctor for some problem that occurs during a medical procedure; this is now countered by the argument that modern hospitals and the medical industry charges market rates for their procedures, and hence are not doing any favors to patients.6

CONCEPT OF DAMAGES OR MEDICAL COMPENSATION

Once the complainant has established that the defendants lack of care caused his injuries he is entitled to be compensated for all of his losses which are attributable to those injuries. In case of
5

1977 (2) SCC 441

See, http://ashisha.com/consumer/2009/05/16/supreme-court-awards-rs-1-crore-damages-for-medicalnegligence/, retrieved on 20/5/2009

personal injuries, damages are divided into two categories: special damages and general damages. The basic principle in awarding compensation is to put the plaintiff in the position he would have been had the negligence not occurred. Obviously, although the purpose is to compensate the victim for his injuries, in reality no amount of money can compensate for the pain and suffering sustained. 7 The increase in consumerism, raised expectations, wider publicity about high technology medicine have also served to increase the tension under which medicine is both practiced and perceived.8 The Basis Of Liability The nature of the relationship between doctors and patients is determined largely by the practice of the medical profession, and shaped by a strong commitment to long standing principles of medical ethics. The law plays a significant role, however, in providing a structure within which the doctor- patient relationship is conducted. 9 The provision of compensation is one of the major functions of law. Receipt of damages represents compensation for pain, suffering, and injury to health, reduced life expectancy or death. 10 This may also include claims for certain financial losses such as loss of earnings (past and future) and medical care (also past and future), for example. Scots and English law differ in their approach to damages. 11 Its usually fault as a basis of liability on which compensation is ordered by the courts. In adversarial litigation process like that in India it is essential that the courts not only look into appreciating the victims claim that there has been negligence but also ensure that once that has
7

Khan Malcolm and Robson Michelle, Medical Negligence, Cavendish Publishing Limited, 1997, Great Britain, at page 203
8

Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 1
9

Jones A Michael, Medical Negligence, Sweet and Maxwell, London, 2003, at page 56 See, Damages (Scotland) Act 1993, discussed in The Damages (Scotland) Act 1993, F.Maguire (1993), S L T 245.

10 11

Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 82

been established the compensation ordered to be paid should be in consonance with the future care of the victim. The courts have to appreciate the value of the traumatic life that the victim will lead and the order of compensation has to be able to consummate the future costs of the victims life. The human rights aspect of the right to compensation cannot be over looked. Every individual has the fundamental right to good health care services and once that right has been violated the individual has the right to adequate compensation from the erring authority and the courts have to keep in mind the strict connotation of bearing of the violation on the individuals future life prospects.

MEDICAL COMPENSATION IN ENGLAND

In England the medical services are provided by the state as well as private practitioners. The National Health Services is the state run health service provider. This machinery has its in built complaint mechanism and the process is three step process. In 1978, the Royal Commission on Civil Liability and Compensation for Personal Injury, chaired by Lord Pearson, reported. 12 This was the first major investigation of the compensation debate. As far as medical litigation was concerned it confirmed that the success rate was between 30%-40%.13 In England 3000000 patient-adverse outcomes occur annually, with about 75000 of these being due to negligence.14 The heads of damages paid are:General, special and Provisional. General damages are those which fall to be assessed and estimated and involve a greater degree of judicial skill and discretion. General damages comprise the award made for the pain, suffering and loss of amenity occasioned by the breach of duty and also in respect of income or profits and future expenses such as care and accommodation. The court, in assessing damages, must determine both past and present losses, some of which are entirely pecuniary and some of which

12

Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 79, quoting (footnote 41): Cmnd 7054, 1978
13

Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 79, quoting (footing 42): Pearson Report, paras. 78 and 1326
14

Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing Company, 1997, England, at Page 81, quoting (footnote 50): C. Vincent, M.Ennis, R.J.Audley, Medical Accidents, Oxford medical Publications, 1990, at Page 20

are personal and non-pecuniary such as compensation for disfigurement and pain which has to be quantified in monetary terms. 15 In Hughes v Hay 16, the trial judge awarded a sum of 3,000 Pounds to cover the prospect of the plaintiff having difficulty in finding employment should he ever lose his job as a serving police officer. This award for disadvantage on the labour market was based on the assumption that he would be fit enough to carry on for ten more years in the police services. The plaintiff appealed and sought leave to have the court consider new evidence that he was in fact subsequently retired after the trial from the police force on medical grounds, following a police medical examination three months later. The court of appeal allowed a retrial on the questions of this discharge. The damages are usually paid on the following based categories17: 1. Pain and Suffering This forms the part of general damages award. The damages are assessed at the date of the trial and not the date of injury. It is unlikely that any injury will not result in some degree of pain and suffering; therefore as a rule the courts do not recognize the injury itself as a separate head of damage, except where it is specific, e.g. loss of an arm or leg where there are recommended for such injuries. The courts also take into account any shock suffered by the plaintiff. 2. Loss of Amenity18 Damages under this head seek to compensate the plaintiff for his loss of enjoyment as a result of the accident, i.e., when he can no longer do the things he was accustomed to doing. The court takes into account how long the plaintiff will be deprived of these amenities; if it is for the rest of his life the damages awarded will be in proportion to his

15

MA Jones- Nelson Rodney and Burton Frank, Medical Negligence Case Law, Butterworths Publications, London, 1995, at Page 147 and 148
16

MA Jones- Nelson Rodney and Burton Frank, Medical Negligence Case Law, Butterworths Publications, London, 1995, at Page 148
17

Khan Malcolm and Robson Michelle, Medical Negligence, Cavendish Publishing Limited, 1997, Great Britain, at page 203
18

Khan Malcolm and Robson Michelle, Medical Negligence, Cavendish Publishing Limited, 1997, Great Britain, at page 204

age and life expectancy. The plaintiff need not be aware of the loss of amenity; what matters is that the amenity is lost. The general damages for pain and suffering and loss of amenity are assessed once and for all at trail.

3. Loss of Future Earnings This head is an exception to the general rule that pecuniary losses fall into the special damages category. The reason is that it is often impossible to say what the plaintiffs future loss would have been but for his injury. For e.g., it may be unclear how long he will require medical attention or when or if at all he will return to work. 4. Damages for handicap in the labour market- the Smith v Manchester award19 Damages under this head are often referred to as damages for loss of a persons earning capacity. A true award under this head is made to a plaintiff who is able to return to his employment but his injuries mean that he is more likely to lose his job in the vent of redundancies and/or he is plainly at a disadvantage in the labour market, e.g. predisposition to similar injury or has been unemployed through his disabilities since the injury. 5. The Lost Years. These damages are incapable of any precise calculation and form part of the general damages award. The claim is made by the plaintiff for the lost years i.e. the period by which his life is shortened because of his injuries and during which he would have received remuneration. 6. Past and Future expenses In assessing these losses there is no difference between past and future losses; the damages are dealt with under the same categories and the same deductions and/or contingencies are taken into account. The main item under this head will be medical expenses, both past and future medical expenses and any other future expenses will be assessed as part of the plaintiffs general damages; those which have already been incurred will form part of the special damages.

19

Smith v Manchester Corporation (1974) 17 KIR 1

As far as loss of earnings is concerned the expenses are assessed using the multiplicand/multiplier approach. Generally , a greater multiplier is applied here than for loss of earnings since it is assumed that most expenses will be permanent future expenses, except where the plaintiffs expectation of life is short, in which case his loss of earnings will be greater. Other pertinent categories that are borne in the order of compensation are accommodation, nursing care, medical expenses etc.

The Multiplicand/Multiplier approach In Lim Poh Choo v. Camden and Islington Area Health Authority20 Lord Scarman said: The principle of law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not suffered the wrong.

The quantification of past loss involves a survey of what has happened and the quantification of future loss involves an assessment of what will happen. No matter how cogent the evidence on behalf of the plaintiff, the evaluation of the future loss is bound to be plagued by uncertainty.21 The intended purpose of the award for prospective damages is to provide the plaintiff with a sum which will both cover his anticipated needs until death and also compensate him for his loss of earnings until his intended retirement. This is where the multiplier is used by the courts, which is determined by the number of years the awarded sum of damages, if invested, should last, being equivalent to the period of future loss or expense. The award of damages for future loss and expense is intended to replace losses or needs at defined rates (the multiplicands) over a future period or future periods. There may be separate of loss or needs to be considered, for example: Over the course of childhood until the age of 18 years; A course of future treatment or therapy which may be forecast to last a finite period of years;
20 21

(1980) A.C. 174 at 192; (1979) 2 All E.R.910 at 917

Andrews Peter and Lee Terry, Catastrophic Injuries: A Practical Guide to Compensation, Sweet and Maxwell publication, England, 1997, at Page 97

A working life lost as a result of injuries; A full life until death

The award will be calculated on the assumption that at the end of the period of loss or need no windfall sum of damages will remain.22 The thinking in England is that the capital got in the award is invested and earns interest. Therefore the greater the rate of interest which is annually obtained on the unexpended portion of the award, the longer the initial sum will last. The lower the predicted or assumed rate of interest, the greater the multiplier factor should be in order to achieve fair compensation for suture loss and expense. The multiplier is the key mechanism by which the multiplicand is converted into a capital sum. The application of the multiplicand-multiplier process converts the cost of a stream of future losses and/or needs into a one-off lump sum. It calculates the present value of the award needed to meet those future losses and needs. In practice the principal features taken into consideration for determination of multiplier are: 23 (i) The arithmetical calculation of the actual period of loss or expense, which period commences with the date of trail; (ii) The appropriate discount rate for early receipt of lump sum, which will be based on a determination of the likely rate of interest to be earned on the money in the future; (iii) The contingencies, both adverse and favourable, which may have affected the plaintiff in the future had he not been injured. The function of the multiplier was explained by Hobhouse J24. (as he then was) in Willett v. North Bedfordshire Health Authority: the function of the multiplier of an annual sum is first to convert one or more annual sums, that is, items of expenditure, into a capital sum. It is, secondly, to allow for the advancement of the payment or payments that are being made. It is, thirdly, to allow for contingencies and other adjusting factors to be taken into account. The first and second exercises are mathematical in
22

Andrews Peter and Lee Terry, Catastrophic Injuries: A Practical Guide to Compensation, Sweet and Maxwell publication, England, 1997, at Page 98
23

Andrews Peter and Lee Terry, Catastrophic Injuries: A Practical Guide to Compensation, Sweet and Maxwell publication, England, 1997, at Page 99
24

(1993) P.I.Q.R. Q166at Q167.

approach and should be dealt in that ay, the third is something to be assessed and has to take into account all the circumstances of the case, including how the multiplicand has been arrived at. Different multipliers and multiplicands are used in different cases. The law of the country lays down the multiplicand for the claims of a certain category. What is noted is that in England rarely any cases go to contested hearing, out of court settlement is the norm set there and when the cases do reach the court there seems to be a deeper understanding of the overall affect on the victim of the injuries. The following list of paid damages in various injuries shows the trend25: Head Injury Severe Brain Damage up to 200,000 Moderately Severe Brain Damage up to 145,000 Moderate Brain Damage up to 110,000 Minor Brain Damage up to 22,000 Minor Head Injuries up to 6,000 Psychiatric Damages Severe Psychiatric Damage up to 60,000 Moderately Severe Psychiatric Damage up to 28,000 Moderate Psychiatric Damage up to 10,000 Minor Psychiatric Damage up to 3,000 Post-Traumatic Stress Disorder Severe Post-Traumatic Stress Disorder up to 50,000 Moderately Severe Post-Traumatic Stress Disorder up to 30,000 Moderate Post-Traumatic Stress Disorder up to 12,000 Minor Post-Traumatic Stress Disorder up to 4,000 Chest Injury Severe Chest Injuries up to 77,000 Moderate Severe Chest Injuries up to 52,000 Moderate Chest Injuries up to 28,000 Mild Moderate Chest Injuries up to 9,000
25

See, http://www.100percent-compensation.co.uk/compensation_awards.htm, retrieved on 12/5/09 at 11:30 am

Mild Chest Injuries up to 6,000 Slight Mild Chest Injuries up to 2,500 Slight Chest Injuries up to 2,000 Eye Injury Total Blindness up to 140,000 Loss of Sight in One Eye with Reduced Vision in the other up to 92,000 Total Loss of One Eye up to 34,000 Minor Eye Injuries up to 4,000 Deafness Damages Total Deafness up to 57,000 Severe Loss of hearing in One Ear up to 23,000 Moderate Loss of hearing up to 15,000 Mild Loss of hearing up to 7,000 Slight loss of hearing up to 6,000 Pelvis/Hip Injury Severe Pelvis/Hip Injuries up to 67,000 Moderate Severe Pelvis/Hip Injuries up to 32,000 Moderate Pelvis/Hip Injuries up to 20,000 Mild Pelvis/Hip Injuries up to 6,000 Minor Pelvis/Hip Injuries up to 2,000 Arm Injury Loss of Both Arms up to 150,000 Loss of One Arm (at Shoulder) over 72,000 Loss of One Arm (above Elbow) up to 67,000 Loss of One Arm (below Elbow) up to 57,000 Severe Arm Injuries up to 67,000 Moderate Arm Injuries up to 31,000 Mild Moderate Arm Injuries up to 20,000 Mild Arm Injuries up to 10,000

MEDICAL COMPENSATION IN US
Presently, the medical malpractice liability cap in Virginia is $2 million. In Indian currency that is 10 Crores approximately! The limit on punitive damages is $350,000. A judge denied most of the government's request to cut back an $8.5 million award for a woman who was misdiagnosed, and who suffered injury from flesh eating bacteria! Sophia and Darrell Savage filed a medical malpractice suit against Three Rivers Medical Center - and won $2.5 million to cover their medical costs. They awarded Sophia $1.9 million for past and future pain and suffering and $65,968 for past medical expenses. Darrell was awarded $500,000 for loss of consortium. Savage underwent her hysterectomy in 2001, in the hospital where she was also employed as a registered nurse. Four years later, after suffering from abdominal pain, doctors discovered the sponge had deteriorated and attached to her lower intestine. She required another surgery in which some of her intestine was removed. She will have pain for the rest of her life. Although the statute of limitations for medical malpractice cases is two years, since the sponge was not discovered until many years later, the Savages were still able to file their lawsuit.26 It seems that in the US too there is increased stress on the victims right to be put in the condition before the negligence happened as far as monetary help is concerned.

MEDICAL COMPENSATION IN INDIA

Anuradha Saha Case The landmark medical negligence suit in India is still up for final hearing in the SC on 14th July 2009 in Anuradha Saha Death Case. She died in 1998 due to medical negligence of doctors of a hospital in West Bengal and Kunal Saha had filed a Rs.770 million ($17 million) compensation claim. In the process, he has scripted one of the most high profile medical negligence cases in India.
26

27

The National Consumer Disputes Redressal Commission Bench, presided by Justice M

http://www.hsinjurylaw.com/blog/index.cfm?catid=371, retrieved on 17/5/09

27

See, http://www.bio-medicine.org/medicine-news/Stage-Set-For-Final-Hearing-On-India-u2019s-Biggest-EverMedical-Compensation-Clai-8473-1/, retrieved on 27/4/09

B Shah, absolved the Advanced Medical Research Institute (AMRI)-Apollo Hospital and its five Kolkata-based doctors Sukumar Mukherjee, Balram Prasad, Kaushik Nandi, Abani Roy Chaudhary and Vaidyanath Haldhar of charges of medical negligence.28 What is noteworthy is what the NCDRC observed in its judgment while dismissing the case: "Whether the courts or the consumer fora can sit in appeal against the decision taken by the expert doctors with regard to administration of a particular dose of medicine? Answer would be No. We reiterate that doctors or surgeons do not undertake that they will positively cure a patient. With regard to the alleged deficiency in the treatment given to Mrs. Anuradha by opposite party doctors, there is no substance. The insensitive way the courts seem to be handling the compensation claims only adds to the worries about how far compensation jurisprudence will go in the country! Prashant S Dhananka Case In a recently decided case the Supreme Court on 14th May 2009 awarded a compensation of Rs 1 crore to a software engineer who suffered permanent disability due to medical negligence at a government-owned hospital in Andhra Pradesh. The bench enhanced the compensation to Rs 1 crore from Rs 15 lakh which was awarded by the Andhra Pradesh High Court to Prashant S Bhanaka, the software engineer. The victim suffered permanent disability in the form of paralysis and other complications, rendering him incapable of all normal chores after undergoing a surgery in Nizam Institute of Medical Sciences. 29 It is a pittance compared to the 5 million pounds (a little over Rs 37 crore) awarded to British TV actress Leslie Ash in a similar case last year. While it took Dhananka 19 years to get justice, British actress Leslie Ash got her compensation in just four years. She had brought the claim after contracting an MSSA (methicillin-sensitive staphylococcus aureus)
28

See, Apex Consumer Court Rejects Rs 143 Cr Medical Negligence Claim on website of Bio Medicine at http://www.bio-medicine.org/medicine-news/Apex-Consumer-Court-Rejects-Rs-143-Cr-Medical-Negligence-Claim10806-1/, retrieved on 27/4/09
29

See, http://www.ndtv.com/news/india/medical_negligence_case_victim_gets_rs_1_crore.php, retrieved on 19/5/09

infection while being treated by the Chelsea and Westminster Hospital in London for two cracked ribs in April 2004. As a result of the infection, she suffered severe mobility problems and even after four years walked with the aid of a stick. Dhananka's nightmarish experience is similar to the case of national table tennis player V Chandrasekhar, who fought a legal battle against Apollo Hospital, Chennai, for over a decade before being awarded Rs 19 lakh by the Supreme Court in February 1995 -- the highest compensation in a medical negligence case in India before the Dhananka verdict. Chandrasekhar too had been left partially paralyzed due to medical negligence.30 Omega Hospital Case The Dakshina Kannada District Consumer Disputes Redressal Forum recently passed an order directing Omega Hospital Ltd. in Pumpwell area here to pay Rs. 15 lakh as compensation for negligence in handling a patient seven years ago. This is the first time such a high amount has been awarded as compensation. Mohammed Ashraf (40) was admitted to the hospital on October 10, 2002 after he complained of mild chest pain. The Director of the hospital and the cardiologist advised him to undergo a sophisticated surgery that would cost Rs. 2 lakh. But after the operation, the patient did not regain consciousness for quite some time. Later, his speech became incoherent. His wife, Hurunissa, says that Mr. Ashraf is now like a living corpse. He is bedridden. The forum found that Mr. Ashrafs condition was caused because his brain did not receive sufficient oxygen during the operation. He was put on an artificial heart and lung machine, it said and added that the doctors should have monitored his condition and calibrated the machine so that it pumped the right quantity of blood and oxygen to the brain. Based on material evidence, the forum came to the conclusion that negligence on part of the doctors was obvious. The judgment says the hospital authorities made the patient and his family

See, SC awards techie Rs 1cr damages for medical negligence, 15 May 2009, 0134 hrs IST, Dhananjay Mahapatra, TNN, at http://timesofindia.indiatimes.com/India/SC-awards-techie-Rs-1cr-damages-for-medicalnegligence/articleshow/4528596.cms
30

falsely believes that this was an urgent surgery. The complainant was not informed of any possible after-effects of the surgery or untoward complications. The forum found that the doctors had obtained the consent of the patient when he was under sedation. The hospital authorities, the judgment said, miserably failed to prove that they had taken written consent from the patient and his relatives. Considering the present age and condition of the victim, the forum asked the hospital authorities to pay Rs. 15 lakh, irrespective of medical bills. 31 The Karnataka State Consumer Disputes Redressal Commission has found an obstetrician and gynecologist guilty of deficient service and has ordered him to pay up Rs 1, 50,000 as compensation to a 31-year-old woman from Ranebennur. Under the CPA the case goes to the district fora and then if appealed moves up to the National Commission. There also lies an appeal to the Supreme Court under Art 32 and to the High Court under Art 256. Jurisdiction of Agencies:-

District Commission: entertains claims up to the value of Rs 20 lac. State Commission: entertains claims from Rs 20 lacs to Rs 1 crores. National Commission: claims exceeding Rs 1 crores. There has been no revival in the compensation payment by the consumer forums or the courts. The compensation ordered to be paid seems to be a petty amount in relation to what the victim of medical negligence suffers. Damages for personal injury and death typically take the form of a lump sum. The award or the settlement is made once for all, and there is- except in rare cases- no possibility of increasing it or decreasing it later because of changes in the claimants situation. However the lump sum remedy does raise acute problems wherever a person suffers serious injuries, the effects of which may still be felt long after the damages are assessed.
31

32

It is highly questionable whether

See, http://www.hindu.com/2009/02/06/stories/2009020658950300.htm, retrieved on 2/5/09

32

Cane Peter and Atiyah Patrick, Atiyahs Accidents, Compensation and the law, Cambridge university Press, United Kingdom, 2008, at page 130

awarding damages for lost income or the cost of care in a lump sum is appropriate in cases where the loss will continue after the date when the damages were assessed. A significant number of recipients of lump sum damages have inadequate income from their awards to meet their expenses. In most of the cases this its the case of mis management of the sum award, and in other cases its due to factors like unexpected deterioration in medical conditions. The Indian judicial system refuses to look beyond the lump sum system to look for alternatives that can actually help the victim.

CONCLUSION
Medical profession is one of the oldest professions of the world and is the most humanitarian one. Inherent In the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity. Medical Ethics underpins the values at the heart of the practitioner-client relationship. Medical negligence and malpractices by doctors were the grey areas in health care where legal issues operated. On April 9, 1985, the General Assembly of the United Nations adopted the guidelines to provide framework for Governments, particularly those of developing countries. The legitimate needs which the guidelines are intended to meet include the protection of consumers from hazards to their health and safety and availability of effective consumer redress were first set up in 1986.33 Yet it looks like the redress forums havent been able to actually bring justice to the victims of medical negligence. Under Article 21 of the Indian Constitution every individual is guaranteed the right to life and this has been construed to include right to health. The Indian courts havent been able to develop medical jurisprudence, in relation to compensation, to the next level of overall care of the victim in the future. The payments of compensation seem to be snagged by the traditional outset of the courts and nothing seems to have been thought so as to develop the scope of compensation payments. Lack of social security structure in the country also hinders any victims right to effective care for the rest of the time that he lives and therefore it become essentially more pertinent that the courts take a forward looking approach in ordering payments.
33

See, http://www.legalserviceindia.com/article/l251-Medical-Negligence.html. retrieved on 26/5/09

THE WAY FORWARD

Indias experience with medical compensation has been insufficiently marred by very slow growth of medical jurisprudence understanding. There is no social security structure in place and therefore medical service becomes almost a privilege. The courts have not been progressive in applying principles of basic human rights of the individual to health and effective medical care and thus the medical compensation structure in India has been stagnated in the dark ages! The fundamental principle applied to the assessment of an award of damages in tort is that the claimant should be fully compensated. He is entitled to be restored to the position that he would have been in had the tort not been committed, in so far as this can be done by the payment of money.34 The obvious question to which the various problems with the system of lump sum damages gives rise is whether some system of periodical payments would be preferable. It can be a better way of putting back the injured person in the position they would have been had they not been injured. This can also suggest that there can be a combination of lump sum and periodical payments. Though its right to say that no amount of money can give back what has been taken it has to be borne in mind that the victim of negligence should be given enough help to sustain in future contingencies. Going through the various compensation awards there seems to be a clear lack of understanding of the concept of medical negligence affecting the future of the victim. Lump sum payments have become the trend and considering how 1 crore compensation is being hailed as a benchmark only shows that medical jurisprudence hasnt become a part of the legal studies. Like the western countries there is a complete lack of in depth separate study on various aspects of medical negligence and mal practice and the deciding of compensation value on that basis. The present system of compensation doesnt sufficiently reflect clinical responsibility and authority. STRUCTURED SETTLEMENTS

34

Livingstone v Rawyards Coal Co (1880) 5 App. Cas.25, 39.

Under such payments damages for future losses are calculated as a lump sum but are paid in not a lump sum form. The payment mode is decided as to how the need varies.

DAMAGES SCHEME 1. Compensation for Pain and Suffering 2. Earning Replenishment: perhaps 70% of income 3. Re-imbursement of direct expenses- serious cases in which there was a past and future liability for care.

PERIODICAL PAYMENTS A structured settlement is something which is decided on the wish of the two parties whereas periodical payments can be decided by the courts against the wish of the defendant. A periodical payment order may directly specify the amount to be paid periodically without calculating a lump sum, leaving it entirely to the defendant to decide how to satisfy the order. Before making the order the court must be satisfied that continuity of payment under the order is reasonably secure. A periodical payment order can provide for payments to continue after the death of the injured person, in order to provide support for dependants.

LOST EARNINGS AND SUPPORT If the life expectancy of a victim has been reduced by injuries, damages may be recovered for loss of earnings not only up to date of expected death but also in respect of the years when, but for the injuries, the claimant would have been alive and earning (the lost years). This is to provide support for dependants of the injured person after death. The multiplicand and multiplier structure is unheard of in India and its time that the jurists apply this structured formula for calculating the past and future losses of the victim.

PENSION STYLE SCHEME In some cases a claimant maybe so severely disabled or incapacitated thats medical and nursing treatment may be required indefinitely or indeed for the rest of the injured

persons life. It empowers a care direction to be levied against the hospital or practice to provide the necessary care.

PROFESSIONAL INDEMNITY INSURANCE The principle of insurance is based on eventualities. The insurer covers the risk on payment of consideration known as premium, and the agreement/contract is embodied in the instrument, known as the policy. It is advisable to take an insurance cover for professional pursuits. In case of litigation in court many a time it is the insurance company which gives legal help to the doctors. In case of negligence claim the litigation expenses, the claim put up by the affected parties and /or other liabilities are borne by the insurance company provided the terms and conditions of the contract are fulfilled and the policy is in full force and effect. The concept is to indemnify and not to earn money. Specialists owe a greater degree of care and skill towards their patients therefore premium for them is higher. 35

Though this concept is prevalent in use in western countries, in India the medical professionals hardly have any such insurance cover. Professional Indemnity Insurance cover became available for doctors and Medical establishments only from December, 1991.36 Bringing about more usage of such cover for doctors can bring s significant shift in the compensation given to a victim. The courts can then look at the compensation to be awarded as victim centric rather than saving the doctors. In order to streamline the system a banding system for benefits could be developed under which levels of benefits could be graded.

MEDICAL AUDITS Again an unheard concept in India. A complete analysis on what has been the trend of medical negligence in India can lay the foundation for the damages awarded to be

35

Kaushal Anoop, Medical Negligence and Legal remedies, Universal Publishing House, Delhi 1998, at page 42

36

Singh Jagdish and Bhushan Vishwa, Medical negligence and Compensation, Bharat Law Publications, Jaipur, 2004, at Page 199

reviewed and for the pecuniary jurisdiction of the commissions to be increased. An independent body does and audit on the standards of services being provided by the state run hospitals and private hospitals. This audit then helps in getting the hospitals to better up the services. In the western countries organisations like Harward Law School have conducted such audits. It has been defined as a systematic critical analysis of aspects of quality of care, reference to standards of care, and commitment to change. 37

ORGANISATIONAL RESPONSIBILITY The courts enquiry is narrowly focused upon the behavior of those immediately involved and that an award of damages depends upon establishing fault. 38 A compendium entitled Medical Accidents, edited and with contributions by Vincent et al, was published in 1997. It suggested that the response by the law was inadequate and insufficiently sophisticated for the medical practice. Blame culture is of little use when it comes to understanding the complex appropriate remedial measures. The laws approach should be formally able to recognize a wide variety of input into accidents from management, procedures, systems and the synergy between them. The Indian system where the doctors are brought in as experts evidence provider by the forum if needed only goes on to bring the doctor community on one side as peers and they fail to look at the victim as a patient who has been wronged. The courts have to start looking into the full set up responsibility and ensure that stigmatization, charring of the doctors future career arent the outcomes that the erring doctor is made to look at, organizational responsibility can to some extent lead to that step.

References BOOKS REFERRED 1. Khan Malcolm and Robson Michelle, Medical Negligence, Cavendish Publishing Limited,
1997, Great Britain

37

Does clinical risk management improve the quality of healthcare? D .Harper Mills, GE. Von Bolschwing (1995), 1 Clinical Risk 171.
38

Philips Fulton Andrew, Medical Negligence Law: Seeking A Balance, Dartmouth Publishing, England, 1997, at page 168

2. Phillips Fulton Andrew, Medical Negligence Law: Seeking A balance, Dartmouth Publishing
Company, 1997, England

3. Jones A Michael, Medical Negligence, Sweet and Maxwell, London, 2003 4. MA Jones- Nelson Rodney and Burton Frank, Medical Negligence Case Law, Butterworths
Publications, London, 1995

5. Andrews Peter and Lee Terry, Catastrophic Injuries: A Practical Guide to Compensation,
Sweet and Maxwell publication, England, 1997

6. Singh Jagdish and Bhushan Vishwa, Medical negligence and Compensation, Bharat Law
Publications, Jaipur, 2004

7. Lewis J Charles, Clinical Negligence: a practical guide, Butterworths Publication, London,

2001 8. Boumil Mobilia Marcia and Elias E Marcia, The Law of Medical Liability, West Publishing Company, USA, 1995 9. McLean Sheila and Mason Kenyon John, Legal & Ethical Aspects of Healthcare, Cromwell Press, UK, 2003 10. Stauch Marc and Wheat Kay with Tingle John, Text, Cases & Materials on Medical Law, Cavendish Publishing Ltd, UK, 2004 11. Mendelson Danuta, The Interfaces of Medicine and Law, Dartmouth Publishing Company and Ashgate Publishing company, England and USA, 1998 CASES REFERRED 1. AIR 1996 SC 550 2. 1977 (2) SCC 441 3. Smith v Manchester Corporation (1974) 17 KIR 1 4. Livingstone v Rawyards Coal Co (1880) 5 App. Cas.25, 39 JOURNALS Murthy, K.K.S.R., Medical Negligence and the Law, Indian Journal of Medical Ethics, Vol. 3, July-Sept, 2007. WEBSITES 1. http://www.helplinelaw.com/docs//main, retrieved on 2.5.2009 at 1:30 p.m 2. www.healthlibrary.com, retrieved on 2.5.2009 at 1:30 pm

3. http://ashisha.com/consumer/2009/05/16/supreme-court-awards-rs-1-crore-damages-formedical-negligence/, retrieved on 20/5/2009, at 11:30 am 4. http://www.100percent-compensation.co.uk/compensation_awards.htm, retrieved on 12/5/09 at 11:30 am 5. http://www.hsinjurylaw.com/blog/index.cfm?catid=371, retrieved on 17/5/09, at 2:30 pm 6. http://www.bio-medicine.org/medicine-news/Stage-Set-For-Final-Hearing-On-India-u2019sBiggest-Ever-Medical-Compensation-Clai-8473-1/, retrieved on 27/4/09, at 4:25 pm 7. http://timesofindia.indiatimes.com/India/SC-awards-techie-Rs-1cr-damages-for-medicalnegligence/articleshow/4528596.cms , retrieved on 15/5/09, at 5:30 am 8. http://www.hindu.com/2009/02/06/stories/2009020658950300.htm, retrieved on 2/5/09, at 3:30 pm 9. http://www.legalserviceindia.com/article/l251-Medical-Negligence.html. retrieved on 26/5/09, at 6:30 pm