SC landmark judgment on Medical Negligence

Times of India, 25th October 2013, p. 14

NRI doc had claimed 102cr for wife’s death

Dhananjay Mahapatra TNN 

New Delhi: As part of the Rs 5.96 crore compensation that US-based NRI doctor Kunal Saha will get for the 1998 death of his wife Anuradha due to medical negligence, doctors Sukumar Mukherjee and Baidyanath Haldar have been directed to pay Rs 10 lakh each, while another doctor, Balram Prasad, will pay Rs5lakh.Kolkata’sAMRI hospital will have to pay the remaining Rs5.71crore. 
    The Supreme Court said the hospitalwould also pay an interest of 6% on the amount from the date of filing of claim by Saha. If the interest is taken to be simplein nature,then thehospitalwouldhaveto pay another Rs 6 crore. Abani Roy Chowdhury, the fourth doctor in the case, died during the pendency of the proceedings. Even as Saha went from pillar to post to secure justice, he started an NGO to take up the cause of ethical medical treatment and against excessive/wrong medication by corporatehospitals. 
    Setting a milestone in compensation in medical negligence cases, which the SC observed wason the risein India given the unregulated growth and commercialization of healthcare services, the SC directed the threedoctors andthehospitalto filethecompliance reportof paymentto Saha in eightweeks. 
    Anuradha had contracted toxic epidermal necrolysis and developed rashes over her body. On May 11, 1998, she was admitted to AMRI hospital, where she was treated till May 16. As her condition didn’t improve, she was taken to Breach Candy in Mumbai in an air ambulance. She died on May 28 following complications from bad diagnosis and steroid overdose administered attheKolkata hospital. 
    In 1999, Saha filed a plea before the NCDRC demanding Rs 77 crore from the doctors, AMRI and its directors. He demanded Rs 25.3 crore from the Mumbai hospital,butlater withdrewthat claim. The NCDRC had termed the claim, a total of Rs 102 crore, as perhaps the highest ever claimed for medical negligence before any Indian consumer forum.

Doctors feel SC verdict could demoralize medical fraternity

Times of India, 25th October 2013, p. 14

HEALTH SECTOR RISKS

Docs worried, feel SC verdict could demoralize medical fraternity

Durgesh Nandan Jha | TNN 

New Delhi: The Supreme Court verdict in the Kunal Saha case has left the medical fraternity worried. Doctors say they often operate amid serious constraints which makes the going all the more difficult. Doctors in western countries do not have to face such handicaps. 
    The verdict, they say, could demoralize the medical fraternity. “It’s a black day for the health sector. After this, you should forget lowcost healthcare,” Dr Devi Shetty, founder and chairman, Narayana Hrudayalaya, Bangalore said. “We cannot compare with US healthcare standards. If such penalties are levied, how will doctors risk admitting critically-ill patients or administering emergency treatment,’ he asked. 
    Former head of Medical Council of India Dr S K Sarin said: “First, there is need to bring parity in standard of care, only then can we 
decide if treatment provided for a particular condition is in conformity with it or not. In many cases, there are major differences in medical education standards. This impacts quality of medical care. Medical graduates must go through a common licentiate exam before they can practice.” 
    Still, the medical fraternity failed to convincingly answer why no punitive action was ever taken against doctors against whom charges of neglect were proven. The Delhi Medical Council gets 20-30 complaints of medical negligence every month. Most of these are either disposed of for lack of evidence or the accused is let off with a warning. “No doctor has been barred from practice ever,” Dr Girish Tyagi, registrar of DMC, confirmed. 
    Aman Jesani, editor of the Indian Journal of Medical Ethics, conceded there were several instances of doctors being saved by their peers. “Getting an honest expert opinion is next to impossible. In many cases experts collude or sympathize with the accused and try to save him. Also, not all patients are aware of technical issues involved as Dr Kunal Saha was,” he said. “Remember, Saha had to wait 15 years to get the judgment. This highlights how difficult it is to get justice here.”

Landmark Supreme Court verdict on medical negligence

Times of India, 25th October 2013, p. 14

Dogged Saha soldiers on with contempt case

Abhinav Garg | TNN 

New Delhi: Dr Kunal Saha, whose long struggle for justice ended on Thursday with a landmark Supreme Court verdict on medical negligence, is pushing for reforms in consumer courts. 
    Through his organization People for Better Treatment (PBT), Saha has filed a contempt petition before the apex court, seeking speedy implementation of a historic 2011 judgment where SC permitted non-advocates and charitable organizations to argue cases before consumer forums. 
    An SC bench of Justice Dalveer Bhandari, Justice R Mukundakam Sharma and Justice Anil Dave had asked the National Consumer Disputes Redressal Commission (NCDRC) to frame guidelines to allow non-lawyers to represent, appear and argue cases under the Consumer Protection Act before consumer district forums and commissions. 
    But more than two years later the proposal is stuck in red tape and the guidelines, that ought to have been framed within three months of the order, are nowhere in sight. Last week the Centre again sought four weeks from SC in response to Saha’s contempt plea. In his petition Saha complained that a path- breaking SC order that will enable people like him is being deliberately diluted by the Centre and NCDRC making them liable to be hauled up for contempt. 
    A counter affidavit filed by NCDRC in SC this month shows even though the commission agreed to allow “nonadvocates” to argue cases in consumer courts on behalf of people and framed guidelines in 2011 the law ministry allegedly raised objections. Filed by NCDRC Registrar H D Nautiyal, the affidavit has annexed correspondence between the commission, consumer affairs ministry and the law ministry. 
    The NCDRC has cited opinion given by then additional solicitor-general Mohan Parasaran (now Solicitor General) where he argued SC couldn’t have passed directions to the consumer court without hearing the Centre since implementation of the order must be done by the ministry of consumer affairs. Parasaran advocated the law ministry must approach SC for a clarification that it also be heard. 
    Saha told TOI he is equally determined to follow up the contempt plea as he was in fixing liability for medical negligence. “We will press hard before SC to take immediate measures for allowing NGOs and “non-advocates” to help hapless victims find justice in consumer courts,” he said. 
    The historic 
    Supreme Court judgment does three important jobs. It rekindles the hope for countless of victims of medical negligence. It should tell honest and caring doctors it is time to step forward to cleanse the system. Today’s judgment has uplifted the sagging value of human life in India Kunal Saha 
DR SAHA, WHO LIVES IN OHIO, RUNS A KOLKATABASED NGO TO HELP PEOPLE WITH MEDICAL MALPRACTICE CASES The doctor-turned-activist showed in 2007 how corruptly-procured blood test kits financed by World Bank were leading to HIVcontaminated blood being used in hospitals in India 
OTHER NATIONS UK | NATIONAL HEALTH SERVICE In 2013, official figures showed number of cases registered for medical maplpractice increased by 20% in just a year, by 80% 
since 2008 Increasing numbers of complaints, reported The Telegraph, showed growing lack of tolerance for poor care and patients feeling forced to take legal action because hospitals refused to apologise or explain their failings. More than £1bn spent on settlements 2012 
AUSTRALIA According to WHO, Australia has one of the highest rates of medical error in the world 18,000 people may die every year in hospitals through preventable medical negligence in Australia 50,000 people suffer from permanent injury annually as a result of medical negligence in Australia 80,000 Australian patients per year are hospitalised due to medication errors Laws exist but difficult to prove medical error. Also, doctors band together 

WHAT TO DO WHEN YOU SUSPECT MEDICAL NEGLIGENCE

Times of India dated 25th October 2013, p. 14

NOT ALWAYS THE DOCTOR’S CALL

Medical negligence is any case when a health provider deviates from ‘standard care’ in treating a patient. In the US, records show medical negligence is a leading cause of death. No such study is available for India though medical malpractice is rampant. In the US, $3bn compensation was paid in 2012 alone

WHAT TO DO WHEN YOU SUSPECT MEDICAL NEGLIGENCE 
    File complaints with local police, state medical council (SMC) and state consumer forum 
    Police will send complaint to SMC 
    If SMC upholds complaint, depending on charges made against the doctor/hospital, they’ll file a case under relevant sections. Case goes to theappropriate court 
    If it’s a criminal case, it becomes a case of 
state versus the doctor/hospital 
    SMC can 
initiate action 
against the doctor by 
suspending his licence to practise for specific period of time or removing his name from medical register depending on seriousness of charges 
    If charges are upheld in court, doctor can be arrested and jailed 
    If either party is aggrieved by the SMC’s decision, s/he can appeal before the Medical Council of India 
    The complainant can take the SMC decision and 
approach the consumer court for compensation 
    If complainant goes to the consumer forum, either a panel of medical experts will look into its merits or the forum will send it to the SMC to do the same 
    If complaint is upheld, forum decides quantum of compensation to be paid to 
    the complainant 
Consumer forum can only decide compensation amount but cannot punish anyone even if negligence is proved 
If unhappy with the consumer forum’s 
    decision, any of the parties can appeal before the National Consumer Disputes Redressal Commission and further on to Supreme Court if needed 
    You can also consult patient advocacy groups 
(Saha’s PBT one such) or legal experts, to help define case and check facts 
    Keep original records | All diagnosis, procedure, advice is noted down in the prescription file. Don’t give originals to anyone 
A SAMPLE STATE 
    Delhi Medical Council, one of the authorities patients in Delhi and NCR can complain to, gets 20-30 complaints of medical negligence monthly 
    Complaints | Overcharging, lack of care, wrong or unnecessary procedure, incompetency of doctors 
conducting particular procedure 
    Majority of cases dismissed. At best, warning issued if doctor or hospital found guilty 
    Not a single doctor has ever been barred from practice by the DMC that can deregister a doctor – the maximum punishment under the rulebook 
WHEN PATIENTS KEPT UP THE FIGHT PRASHANT S DHANANKA | MAY 2009 AWARDED Rs 1cr BY SC | Infosys techie was paralysed waist down after a surgeon damaged his spinal cord at a Hyderabad hospital to remove a chest tumour 
V CHANDRASEKHAR | FEB 1995 AWARDED Rs 19L BY SC | National table tennis player was partially paralysed after treatment at Apollo Hospital, Chennai 
JAYANT BHUYAN | NOV 2010 | CII executive died after surgery at a private hospital. Delhi Medical Council found the doctor guilty of negligence, ordered hospital to remove his name for a month

SC Landmark Judgment on Medical Negligence

Times of India dated 25th October 2013, p. 14

NO NEGLECTING MEDICAL NEGLIGENCE

‘Verdict will act as a deterrent for hospitals’

After the landmark judgement 
announcing the highest ever 
compensation awarded in a medical negligence case, TOI spoke to Dr Kunal Saha 

Are you satisfied with the judgement? 
    Of course I am happy. This is the end of a long personal battle. The court has awarded a compensation of Rs 5.9 crore with a 6% interest that will have to be paid from 1999 when I had filed the case. So, the total amount comes to around Rs 11 crore. But it was not about money. I had carried on this long struggle to change the prevailing system in India which treats patients like guinea-pigs. It was important to ensure that the compensation was hefty. This will force hospitals and doctors to be careful and act as a deterrent. This is why I had sought Rs 77 crore as compensation. 
How significant is the judgement? 
    It’s a landmark judgement for this is the first time that doctors and a hospital have been asked to pay such a big amount. There have been cases in the past where doctors had to shell out Rs 1 lakh-Rs 2 lakh as compensation which can’t make any difference. It’s less than the price of a secondhand car and doctors didn’t really worry about paying such sums. So, those compensations were never a deterrent. But this judgment is a strong warning to them. It will help curb reckless use of medicines and wrong treatment. 
You have launched a platform to help victims of medical negligence. How far is this judgment going to help that cause? 
    This is indeed a shot in the arm for the movement against medical negligence in India. I had launched People for Better Treatment to help others like me. Over the last several years, we have taken up numerous cases of medical negligence. My personal battle might have ended, but I shall continue to fight for other victims. In fact, this judgment should encourage all those fighting such cases. At least, they shall no longer be receiving a fraction of the amount they spend on fighting the cases. 
    Life can’t be compensated with money. But at least the victim’s family needs an assurance they would get the money back once they win the case. This is why majority of those who file cases of negligence give up after 4-5 years. 
Why are cases of negligence proliferating in Kolkata? 
    It is the leniency shown to guilty doctors which is squarely responsible for this. One doctor who has been held guilty for my wife Anuradha’s death is an advisor to the health ministry in Bengal. I have filed a petition against this in SC and have written to CM Mamata Banerjee. The Medical Council of India cancelled his licence in 2011, but the state medical council has been defending him. The matter is now pending in the High Court. Most doctors are good. We only need to identify and expel the few rotten eggs. 
Finally, did the fact that you are a doctor help you persist with the battle? 
    Being a doctor made a difference, I could make out they had been negligent. We need to have a system in which there will be a provision for investigation and penalty against doctors accused of negligence. There has to be a protocol and victims’ families shouldn’t be left to fight their own battle. The PBT will fight to change the system.

Consumers win cases if they stay the course

Rebecca Samervel, Times of India | Oct 23, 2013

Service providers, be they builders or car makers, have the time and money to drag consumer cases till the national commission. But this should not discourage aggrieved consumers to file cases at district forums or appeal at the state commission. Because, experts say most state rulings favouring consumers are upheld at the national level.

“Many of the appeals are meritless. When the state commission passes a reasoned order, the national commission does not interfere with it,” said consumer activist Dr M S Kamath. “Over 90% of appeals by builders challenging state commission orders are dismissed,” he said.

An RTI query revealed last year that of 24,278 consumer complaints received by the six district forums in the Mumbai Metropolitan Region in 15 years, housing led with 7,499.

Consumer lawyer Uday Wavikar said the majority of appeals by service providers at the national level are not successful. “The matter that concerns the consumer the most is the time such an appeal will take. If two courts have decided in favour of one party, the third court should not even admit it unless there has been any perversion of law. Many appeals are filed on technical grounds,” he said.

The national commission is the last stop for aggrieved parties within the ambit of the Consumer Protection Act and its orders can only be appealed in the Supreme Court (SC). Even here, consumers often win. Wavikar cites the case of Sanjay Berde that reached the SC. Berde (55) had booked a flat in Shivaji Park in 2004. “The builder refused to hand over possession. Due to escalating prices and a change in government polices, he wanted to make more money on the same flat. So, he asked me to take a refund,” Berde said. The state and national commissions ruled in Berde's favour, as did the SC.