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Medical
Negligence case by NRI Dr.
Historic
SC Judgment for Highest-ever Compensation.
Three doctors from the charge of criminal negligence acquitted but
accepted
the right of NRI Dr. , to seek compensation
New Delhi, Aug. 09, 2009, (1945 pst)
Baljit Kaur/LA- Gary Singh
After the judgement, NRI Dr. Kunal Saha,told Gary
singh today from New Delhi.
- On Friday, August 7, a historic judgment on “medical negligence”
was passed by the Supreme Court (SC) . The Apex Court has held
4 doctors (including three senior “eminent” doctors)
and AMRI/Apollo Hospital in Kolkata guilty for causing death of
my wife Anuradha Saha US-based child psychologist.
- This case involves a compensation of Rs. 77.7 crore (plus interest),
highest in Indian medico-legal history. The SC has remanded the
case back to the National Consumers Forum (NCDRC) to calculate
the quantum of compensation that must be paid by these doctors
and hospital. Furthermore, in a rare move, the Apex Court has
directly imposed an additional fine of Rs. 5 lakh against the
hospital plus Rs. 1 lakh against the main culprit doctor (Dr.
Sukumar Mukherjee) as penalty for their misconduct which eventually
caused death of Anuradha.
- There are several important aspects in this judgment by the
SC which will have far-reaching consequences on the future practice
of medicine in India.
- I’ve already given sworn testimony that the entire money
from this compensation case would be spent for promotion of healthcare
in India.
 Anuradha
Saha, 36, wife of NRI Dr. Kunal Saha, who was diagnosed with toxic
epidermal necrolysis and died in 1998. Dr. Kunal Saha registered
a criminal case against three doctors alleging medical negligence
and also steroid overdose.
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The Supreme Court upheld the Calcutta High Court judgment:
- Acquitting the doctors on the ground that they had no “mens
rea (intention) of being rash and negligent.
- The hospital had failed to keep proper records of examinations
- The hospital did not have a burns ward, necessary for dealing
with such patients. According to our records, there is no no nursing
home in Calcutta has a separate burns ward. It might not be a
contributory factor although existence thereof was highly desirable
keeping in view the treatment protocol
- According to the high court, " For the purpose of establishing
rash and/or negligent act on the part of the doctor, it is required
to be proved that the patient was kept under the direct control
and observation of a particular doctor or a group of doctors.”
- The SC rejected the arguments of the hospital and the doctors
who claimed with the support of medical research materials that
administration of the excess amount of steroid may not prove fatal
in such cases.
- The bench said it was not bound by such research materials
as there are also enough research materials to prove that excess
dose of steroids could prove fatal in several cases.
The court observed:
- By medical opinion that the mortality rate was high in cases
of steroid use. “If that be so, we feel the doctors…
should have treated the patient (with) more care and caution.
We are, therefore, of the opinion that the universally accepted
medicated treatment protocol had not been followed
- The treatment protocol for patients suffering from toxic epidermal
necrolysis (as Anuradha was), such as limited steroid use and
other supportive care, had not been followed.
- Dr. Sukumar Mukherjee, had prescribed steroids twice a day without
even being sure of the disease Anuradha was suffering from.
- Dr Baidyanath Halder, failed to monitor her vital signs, and
other Dr Abani Roy Choudhury, had not offered any supportive care
- Dr Balaram Das had stood by without applying his mind, but clarified
that Dr Kaushik Nandy, a plastic surgeon, had followed the standard
protocol.
Dr. Suresh Gupta, advisor to NRIpress said: Dr. Kunal Saha's efforts
to fight her wife's case, will bring big change in medical services
in India. Now, the Supreme Court's orders:
- "The hospitals are institutions, people expect better
and efficient service, if the hospital fails to discharge their
duties through their doctors, being employed on job basis or employed
on contract basis, it is the hospital which has to justify and
not impleading a particular doctor will not absolve the hospital
of its responsibilities.
- A hospital not having basic facilities like oxygen cylinders
would not be excusable. You can not deny compensation for mental
agony suffered by relatives
- The doctors have a duty to inform patients about the adverse
effects of a particular medicine prescribed by them or otherwise
it might amount to medical negligence.
- The law on medical negligence also has to keep up with the advances
in medical science as to treatment as also diagnostics. Doctors
must increasingly engage with patients during treatment, especially
when the line of treatment is a contested one and hazards are
involved. Standards of care in such cases will involve the duty
to disclose to patients the risks of serious side-effects or about
alternative treatments. In the times to come, litigation may be
based on the theory of lack of informed consent
- As regards the civil appeal, the Bench said the Commission was
clearly wrong in opining that there was no negligence on the part
of the hospital or the doctors. It, therefore, remitted the matter
to the Commission for determining the quantum of compensation
preferably within six months. “We further direct that if
any foreign expert is to be examined, it shall be done only through
videoconferencing and at the cost of respondents.”
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