India: Medical Negligence - Legal Aspect In India

Civil Appeal No.2867 of 2012 with Civil Appeal No.692 of 2012 with Civil Appeal No.2866 of 2012 with Civil Appeal No.731 of 2012 Civil Appeal No.858 of 2012-Decided on 24-10-2013.

Bench of Hon'ble S.C. comprising S. J Mukhopa dhaya and V. Gopala Gowda , JJ.

Hon'ble Apex Court in matter 'Dr. Balram Prasad Vs. Dr. Kunal Saha & Ors.' & other connected cross appeals1 has recently awarded a historic verdict having a major impact on medical negligence and standard of medical care in India.

The Supreme Court vide its Judgment enhanced the compensation amount of Rs 1.73 crore, which was awarded by the National Consumer Dispute Redressal Commission (NCDRC) in 2011 to the tune of Rs 5.96 crore and asked the Kolkata- based Advanced Medicare and Research Institute (AMRI) and the doctors to pay the amount and also asked to pay interest at the rate of 6 per cent from the date of filing of the complaint in 1999 till the actual date of payment to Kunal Saha, a US-based Indian- origin doctor for medical negligence, which led to the death of his wife in 1998.

The NCDRC earlier found no negligence by doctors or AMRI and had dismissed the case in 2006. The Supreme Court in 2009 had held AMRI and the doctors guilty of negligence and the case was referred to the NCDRC for the sole purpose of determining quantum of compensation. The National Consumer Dispute Redressal Commission (NCDRC) earlier in 2011 had awarded Rs.1.73 crore. Cross appeals were also filed by AMRI and three doctors against the Commission's award. The Apex Court in its Judgment has partly allowed the appeals of claimant.

Hon'ble Apex court hold the three doctors and the hospital culpable to civil liability for medical negligence which had led to the death of Anuradha, a child psychologist and wife of claimant Dr. Kunal Saha, who had come to her home town Kolkata in March 1998 on a summer vacation. Deceased complained of skin rashes on April 25 and consulted Dr Sukumar Mukherjee, who, advised her only to take rest without prescribing any medicine. However, skin rashes resurfaced again with greater passion in early May. Dr Mukherjee prescribed Depomedrol injection 80 mg twice daily to be taken on daily basis, however this prescription of Dr. Mukherjee was not approved by experts at the apex court, at the apex court. Administration of injection led to deterioration of Anuradha's condition, following which she had to be admitted at AMRI on 11 May under Dr Mukherjee's supervision and subsequently she was shifted to Mumbai's Breach Candy Hospital, and her diagnosis stated that she was diagnosed to be suffering from lifethreatening disease called toxic epidermal necrolysis (TEN). Anuradha succumbed to her ailment on May 28, 1998.

Dr. Saha had filed both criminal as well as civil case against the doctors and hospitals on the basis of gross negligence on their part during the treatment, which led the death of her wife.

Hon'ble Supreme Court in 2009 absolved the doctors and the hospitals of criminal liability for medical negligence, however held them culpable of civil liabilities.

The Apex Court held that the deceased was earning $ 30,000 per annum at the time of her death. The appellant-doctors and the Hospital could not produce any evidence to rebut the claims of the claimant regarding the qualification of her wife. Further $30,000 per annum earned by the deceased during the time of her death was not from a regular source of income and she would have earned lot more had it been a regular source of income, having regard to her qualification and the job for which she was entitled to. Therefore, while determining the income of the deceased, Apex Court relied on the evidence on record for the purpose of determining the just, fair and reasonable compensation and her earning was determined at $40,000 per annum on a regular job. The multiplier method was applied for loss of income of deceased and estimating the life expectancy of a healthy person in the present age as 70 years, the Apex Court was inclined to award compensation accordingly by multiplying the total loss of income by 30. Keeping in view the value of Indian currency, the current value of Indian Rupee was taken at a stable rate of Rs.55/- per 1$ and accordingly under the head of 'loss of income of the deceased' the claimant was held entitled to an amount of Rs.5,72,00,550/- which is calculated as [$40,000+(30/100x40,000$)-(1/3 x 52,000$) x 30 x Rs.55/- ] = Rs.5,72,00,550/-.

In respect to claim of medical treatment of deceased at Kolkata and Mumbai, the compensation was enhanced to the tune of Rs. 7,00,000/-. The claimant was also awarded an amount of Rs.1,50,000/- as compensation towards Travel and Hotel expenses at Bombay.

Hon'ble Apex Court while calculating Non-pecuniary damages has considered various facts and precedents e.g. Arun Kumar Agarwal Vs. National Insurance Company2, wherein it has been held that in India the courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children. It was also observed that it is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of the housewife/mother. In that context, the term "services" is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier.

In a three judge Bench decision Apex Court in the case of Rajesh & Ors. Vs. Rajvir Singh and Ors.3, this Court held that "The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Keeping in view all these, the Apex Court awarded Rupees One Lakh for loss of consortium."

The claim of Rs.4,50,00,000/- by the claimant Under the heading of loss due to pain and suffering was held excessive. A lump sum amount of Rs.10 lakhs was awarded to the claimant following the Nizam Institute's case (supra) and also applying the principles laid in Kemp and Kemp on the "Quantum of Damages", under the head of 'pain and suffering of the claimant's wife during the course of treatment'.

In summary, the details of compensation under different heads are hereunder:

Citing an earlier apex court judgment holding the right to health a fundamental right guaranteed under the Constitution's Article 21, the court said doctors and hospitals are to be dealt with strictly if found "negligent with the patients who come to them pawning all their money with the hope to live a better life with dignity". "The patients irrespective of their social, cultural and economic background are entitled to be treated with dignity which not only forms their fundamental right but also their human right".

Noting an increasing number of medical negligence cases coming before the consumer forums, the court said it hopes this verdict "acts as a deterrent and a reminder to those doctors, hospitals, the nursing homes and other connected establishments who do not take their responsibility seriously".


1. 2013 STPL(Web) 850 SC

2. Section 2(m) of W.T. Act

3. [ 2013 (6) SCALE 563]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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