Cap compensation in medical negligence cases
Call it judicial activism or social justice, but over the years the judiciary has become liberal and generous while awarding compensation against doctors and hospitals for medical negligence. Society has accepted this and demands more with a vengeance. The historic judgment where a compensation of Rs 1 crore was awarded for the first time in Prashant Dhanaka’s case in 2009 was soon eclipsed by the shock and awe of the Kunal Saha Judgment in 2013. There were judgments of more than Rs 1 crore as compensation, including one against a free government hospital and doctors of Tamil Nadu.
Arguments for and against astronomical compensations have gone on but what courts have unfortunately forgotten in this newfound enthusiasm is that public good has to be given precedence over an individual’s benefit. The ramifications and resultant increase in treatment costs for 99.9% of the population to pander to perceived loss of one is quixotic to say the least. Doctors today are defensive and do not believe that their clinical acumen will hold up in a court of law. Confirmation of the obvious documentation by an independent third party seems to be the norm. But this third party confirmation comes at a cost. And the cost has to be borne by someone. Once the government has shrugged off its responsibility to bear healthcare costs for citizens, the onus falls on patients and causes more resentment.
The second problem is that despite a standing of more than 27 years and loads of experience in dealing with high-risk cases, today I prefer to treat only those I know are not high risk. Maybe some of those have been helped by my timely intervention but my responsibility towards my family comes in the way in today’s litigious environment. This is not good for society when competent doctors refuse to handle high-risk cases and refer all of them to already resource-depleted and overflowing tertiary hospitals.
VALUE LIFE EQUALLY
The argument that courts award a majority of the compensation against hospitals and not against doctors does not hold water for the very fact that 80% of hospitals are small and medium healthcare establishments owned by doctors who may be the only doctors of the hospital. The consumer protection act (CPA) does not have any provision nor has the judiciary laid down a law that the major part of the compensation is to be paid by hospitals even if it is assumed that all cases of negligence are filed against “corporate hospitals” only. Also, the public perception of unlimited wealth of doctors is a myth carefully built by those with vested interests. Maharashtra has no difficulty in finding specialist doctors to work in Naxal-infested areas giving salaries of Rs 2 lakh per month which a 22-year-old IIT graduate draws as his first salary.
There is no harm in a developing country trying to imitate developed nations. But when we wish to imitate by putting a value to life, give the value to life in all spheres. How can then life be worth Rs 4 lakh in a rail accident and worth Rs 1.05 crore in an airline accident? Irrespective of what I earn if I die tomorrow in a rail accident, this is the maximum compensation which the government will pay for negligence of its employees. When Biscuit Baron Rajan Pillai of Britannia Industries died in custody four days after his arrest due to negligence of the jail staff in 1995, a princely sum of Rs 10 lakh was awarded.
TREAT DOCTORS WELL
The imitation should extend to the compensation paid to doctors for the effort made in saving life which then should also be commensurate to the amount paid in developed countries. For frivolous litigation against a doctor, the compensation awarded is only Rs 10,000 under the CPA. Mental and physical harassment is not unidirectional and a doctor is also the second victim in the episode.
The worst part of this conundrum is the differential and preferential treatment for the rich which high compensations have started to dictate. With limited resources, equipment and infrastructure, a doctor will now try to use the resources preferentially on the rich because if the rich person dies compensation awarded against the doctor would be in crores but if the poor dies it will only be in a couple of lakhs. Crucify the doctor if you think he/she has committed a crime, but let the penalty be in proportion to his/her crime.
Under the CPA, the penalty is dependent on the earning capacity of the patient and not on the gravity of the doctor’s crime. The principle of Restitutio In Integrum ( the principles upon which damages must be evaluated or quantified in terms of money) needs to be revised urgently if India is to stop bleeding its medical professionals.
I may not have all the answers but this I do know that a doctor needs to be as fearless as a soldier on the border who should not have to think what will happen to my family if a mishap were to occur.
IT’S NOT GOOD FOR SOCIETY WHEN COMPETENT DOCTORS REFUSE TO HANDLE HIGHRISK CASES AND REFER ALL OF THEM TO ALREADY RESOURCEDEPLETED AND OVERFLOWING TERTIARY HOSPITALS