National Consumer Disputes Redressal
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 240 OF 1999 Dr. Kunal Saha, resident of 3937, Kul Circle South Hilliard, Ohio 43026, USA-represented by Sri Prabir Kumar Mullick, resident of B/307-IIa Apartment, B-I, Vasundhra Enclave, New Delhi 110 096. .......
Complainant VERSUS
1. Dr. Sukumar Mukherjee, residing at 1/1A, Tara Road, Calcutta 70026
2. Dr. B. Haldar (Baidyanth Halder) R/o FE 382, Salt Lake, Sector III, Calcutta - 700 091
3. Advanced Medicare and Research Institute Limited, P-4, 85, CII, Scheme LXXII, Calcutta 700029
4. Dr. Balram Prasad, P-4, 85 CII, Scheme LXXII, Block-A, Gariahat Road, Calcutta 700 029.
..Subsisting Opposite Party(ies) BEFORE:
HON'BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. S.K. NAIK, MEMBER For the Complainant : Dr. Kunal Saha, complainant in person Mr. Krishnamani, Sr. Advocate Mr. T.V. George, Advocate & Mr. Dushyant Kumar, Advocate For Opposite Party No. 1 : Mr. R.K. Anand, Sr. Advocate For Opposite Party No.2 : Mr. Sanjay Kumar Ghosh, Advocate Mr. Sukumar Pattjoshi, Advocate & Ms. Rupali Ghosh, Advocate For Opposite Party No. 3 : Mr. Aseem Mehrotra, Advocate & Ms. Sangeeta Mehrotra, Advocate For Opposite Party No. 4 : Mr. Suchit Mohanty, Advocate Mr. G. Biswal, Advocate Dated: 21st October, 2011 PER JUSTICE R.C.JAIN, PRESIDING MEMBER AN EXTRAORDINARY CASE 1.1. Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
1.2 Smt. Anuradha Saha ( in short Anuradha), aged about 36 years wife of Dr.Kunal Saha ( complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
1.3 Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
BACKGROUND OF THE PRESENT PROCEEDINGS 2.1 Before we deal with the present proceedings, it is desirable, nay necessary, to refer in some details, the background pursuant to which this Commission is seized of the present proceedings for the second time.
2.2. The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr.Sukumar Mukherjee, Dr.B.Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.Kaushik Nandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
2.3 The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
2.4 Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.Kaushik Nandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation.
We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
2.5 Various findings reached and observations made by the Supreme Court in its order dated 07.08.2009 have great bearing on the question of determination of compensation, which we would like to reproduce below for facility of reference.
Effect of excess dosage
68. There is, thus, a near unanimity that the doses of glucocorticosteroid and in particular depomedrol were excessive. From the prescription of Dr. Mukherjee, it is evident that he not only prescribed depomedrol injection twice daily, but had also prescribed wysolone which is also a steroid having the composition of methyl prednisolone. From AMRI records, it would appear that while admitting the patient, it had categorically been noticed that both depomedrol injection twice daily and wysolone were being administered from 7.5.1998 following the prescription of Dr. Mukherjee. It also now stands admitted that Dr. Prasad also prescribed the same medicine. From Dr. Mukherjees prescription dated 11.5.1998, it is furthermore evident that he had prescribed wysolone 50 mg once daily for one week, 40 mg daily for next week and 30 mg daily for the third week. He had also prescribed depomedrol injection 80 mg twice daily for two days.
69. Depomedrol, is a long-acting steroid recommended for the treatment of chronic clinical conditions like asthma or arthritis for its prolonged immunosuppressive action. The maximum recommended dose of depomedrol is 40-120 mg at 104 week intervals as clearly mentioned by the drug manufacturer, Pharmacia. Dr. J.S. Pasricha, Prof. and Ex-Head of Dermatology at the All India Institute of Medical Sciences (AIIMS) has categorically stated, Depo preparations are used for chronic diseases and not for acute disease like TEN. Secondly, Depo preparations are not to be used twice a day.
Supportive therapy
75. No symptomatic therapy was administered. No emergency care was provided. Dr. Halder himself accepted that the same was necessary. This has also been stated by Roujeau and Revuz in their book in the following terms:
Withdrawal of any suspect drug, avoidance of skin trauma, inserting a peripheral venous line, administration of macromolecular solution, direct the patient to burn unit or ICU.
76. AMRI records demonstrate how abysmal the nursing care was. We understand that there was no burn unit in AMRI and there was no burn unit at Breach Candy Hospital either. A patient of TEN is kept in ICU. All emphasis has been laid on the fact that one room was virtually made an ICU. Entry restrictions were strictly adhered to. Hygiene was ensured. But constant nursing and supervision was required. In the name of preventing infection, it cannot be accepted that the nurses would not keep a watch on the patient. They would also not come to see the patients or administer drugs.
77. No nasogastric tube was given although the condition of the mouth was such that Anuradha could not have been given any solid food. She required 7 to 8 litres of water daily. It was impossible to give so much water by mouth. The doctors on the very first day found that the condition of the mouth was bad.
78. The ENT specialist in his prescription noticed blisters around the lips of the patient which led her to difficulty in swallowing or eating. No blood sample was taken. No other routine pathological examination was carried out. It is now beyond any dispute that 25-30% body surface area was affected (re. prescription of Dr. Nandy, Plastic Surgeon). The next day, he examined the patient and he found that more and more body surface area was affected. Even Dr. Prasad found the same.
79. Supportive therapy or symptomatic therapy, admittedly, was not administered as needle prick was prohibited. AMRI even did not maintain its records properly. The nurses reports clearly show that from 13th May onwards even the routine check-ups were not done.
86. Respondent 3, Prof. Dr. Abani Roy Chowdhury, Consultant, as recommended by respondent 12 was also consulted on 12.5.1998. It is however, stated that he did not examine the patient as he had not been contacted by the Hospital. Anuradha was also examined by Respondent 2, Dr. Baidyanath Halder, a Consultant Dermatologist of fame and author of several books on skin disorders. He also diagnosed that it could be a case of TEN.
He recommended treatment with steroids like pedmeslan and others and the application of ointments. Dr. Halder found that Anuradha was suffering from erythema plus blisters.
However, no abnormality in the eyes or lungs was detected. He, although, opined that an electrolytic balance of the patient should be maintained and steps should be taken to prevent any secondary infection, but did not prescribe any medicine or indicated the steps to be taken therefor.
89. On Anuradhas admission to Breach Candy Hospital, it was recorded inter alia:
Mrs. Anuradha Saha has been admitted to Breach Candy Hospital, on 17.5.1998 at night 9.30 p.m. Her condition on admission is serious. She has been accompanied by her husband Dr. Saha, who has given the history of antibiotic injection for respiratory tract injection, rovamycin, routhromycin, ampicillin and ampiclox and nemuslide followed by development of Toxic Epidermal Necrolysis.
She has received T prednisolone 120 mg/day for 7 days and also injection depomedrol IM x 3 days. She has been haemodynamically stable till now. She is able to swallow liquids, which has been her only nourishment over the past few days.
90. Anuradha was examined by Dr. Farokh E. Udwadia at Breach Candy Hospital in the afternoon of 18.5.1998. His diagnosis was as under:
Patient has come with a diagnosis of Toxic Epidermal Necrolysis (TEN). She has had a number of drugs at Calcutta from antibiotics to non-steroid and inflammatory agents. Is there any way of distinguishing this from a Stevens-Johnson Syndrome? There is no skin left. The mucus of the mouth, genitals and area is also severely affected. And have not seen the evolution of the skin lesions to the point where there is now no skin left. So far there is no organ evolvement in particular. No pulmonary lesions nor any urinary lesions (organs commonly involved as in a Stevens-Johnson Syndrome).
In any case the basic management is the same. I do feel that the dose of steroids used in Calcutta is either excessive 120 mg daily for a number of days, preceded by 80 mg depomedrol injections. I would not give more than 40 mg/day kg body weight.
On the same date Kunals brother who is also a doctor practicing in USA flew to Mumbai. He brought with him a new antibiotic known as Quinolone.
C.3. Findings and analysis with respect to so-called cleavage of opinion Findings on so-called cleavage of opinion
97. The appellant, thus, has placed on record the viewpoints of experts both of the pro-steroid and anti-steroid group. Would it amount to cleavage of opinion so as to enable the court to arrive at a safe conclusion that no negligence is proved or there was no deficiency in service? In other words, the question is as to whether the treatment of Anuradha was in accordance with the medical protocol? In our opinion, the answer must be rendered in the negative.
98. Those who support the use and administration of steroid do so with a note of caution. They in no uncertain terms state that the same should be used at a preliminary stage.
The respondents do not spell out as to what would be the preliminary stage. The preliminary stage must have started with the onset of the disease. Anuradha had been suffering from skin rash from the 3rd week of April, 1998. It increased with the passage of time. The cause of such eruption was not ascertained. In fact what caused the onset of disease was not known. It may be from the Chinese food or it may even be from the use of vitamins.
99. On and from 7.5.1998, she was prescribed injection depomedrol twice a day and wysolone. It was continued upto 13.5.1998, nobody even thought of stopping the injection. Dr. Halder although stopped depomedrol injection from 13.5.1998, but prescribed a high dose of steroid. No doctor posed unto themselves a basic question why despite the use of steroid, condition of the patient was going from bad to worse.
104. We have proceeded to determine the question of negligence on the part of the respondents herein principally on the premise that even if the opinion of the pro-steroid group is followed, the respondents have failed and / or neglected to even act strictly in terms of the treatment protocol laid down by them. The opinion of the anti-steroid group appears to be more scientific and structured but the same by itself, we are conscious of the fact, would not lead us to conclusion that the respondents are guilty of gross negligence.
123. To conclude, it will be pertinent to note that even if we agree that there was interference by Kunal Saha during the treatment, it in no way diminishes the primary responsibility and default in duty on part of the defendants. Inspite of a possibility of him playing an overanxious role during the medical proceedings, the breach of duty to take basic standard of medical care on the part of defendants is not diluted. To that extent, contributory negligence is not pertinent. It may, however, have some role to play for the purpose of damages.
D. Civil Liability Under Tort Law as also under the Consumer Protection Act
132. In this case, we are concerned with the extent of negligence on the part of the doctors, if any, for the purpose of attracting rigours of Section 304-A of the Penal Code, 1860 as also for attracting the liability to pay compensation to the appellant in terms of the provisions of the Consumer Protection Act, 1986. We intend to deal with these questions separately.
133. It is noteworthy that standard of proof as also culpability requirements under Section 304-A of the Penal Code, 1860 stand on an altogether different footing. On comparison of the provisions of the Penal Code with the thresholds under the tort law or the Consumer Protection Act, a foundational principle that the attributes of care and negligence are not similar under civil and criminal branches of medical negligence law is borne out. An act which may constitute negligence or even rashness under torts may not amount to the same under Section 304-A.
134. Bearing this in mind, we further elaborate on both the questions separately.
D.1. Law of negligence under tort law
135. Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. (See Law of Torts, Ratanlal & Thirajlal, 24th Edn. 2002, at pp. 441-42.) Negligence means either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; it is rather a comparative term. In determining whether negligence exists in a particular case, all the attending and surrounding facts and circumstances have to be taken into account.. (See Municipal Corpn. Of Greater Bombay V. Laxman Iyer, SCC para 6, Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edn. 2005, p. 3161.)
136. Negligence is strictly nonfeasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to the dictates of ordinary prudence.
137. In Bolam V. Friern Hospital Management Committee the law was stated thus LWLR pp. 586-87) . Where you get a situation which involves the use of some special skill or competence, then the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. (A doctor) is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. ..
Putting it the other way round, a (doctor) is not negligent, if he (has acted) in accordance with such a practice, merely because there is a body of opinion (which takes) a contrary view.
It has been laid down that an ordinary skilled professional standard of care for determining the liability of medical professional should be followed. (See Maynard v. West Midland Regional Health Authority).
138. Recently in Martin F.DSouza v. Mohd. Ishfaq this Court laid down the precautions which doctors/hospitals, etc., should have taken, in the following terms LSCC pp. 19-20, para 47).
(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should be observed strictly.
(b) No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone, except in an acute emergency, should be avoided.
(c) A doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.
(d) A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.
(e) An expert should be consulted in case of any doubt.
D.3 Legitimate expectation
152. Kunal approached the best doctors available. He admitted his wife at AMRI on the recommendation of Dr. Mukherjee, evidently, expecting the best possible treatment from the renowned doctors and a renowned Hospital.
It was not too much for a patient to expect the best treatment from the doctors of the stature of Dr. Mukherjee, Dr. Halder and Dr. Abani Roy Chowdhury. Services of other experts in their fields were requisitioned by the Hospital. References were made by the doctors themselves consulted the best doctors in their respective fields.
153. Kunal or Anuradha or his relatives never interfered therewith. They did not call any doctor of their choice to the Hospital. In fact, after Dr. A.K. Ghoshal came to know that Anuradha was suffering from TEN, he suggested a line of treatment which was not adhered to keeping in view the fact that Dr. Halder and the Hospital authorities were in charge of the case.
154. The standard of duty to care in medical services may also be inferred after factoring in the position and stature of the doctors concerned as also the hospital; the premium stature of services available to the patient certainly raises a legitimate expectation. We are not oblivious that the source of the said doctrine is in administrative law.
A little expansion of the said doctrine having regard to an implied nature of service which is to be rendered, in our opinion, would not be quite of place.
155. AMRI makes a representation that it is one of the best hospitals in Calcutta and provides very good medical care to its patients. In fact the learned Senior Counsel appearing on behalf of the respondents, when confronted with the question in regard to maintenance of the nurses register, urged that it is not expected that in AMRI regular daily medical check-up would not have been conducted. We thought so, but the records suggest otherwise. The deficiency in service emanates therefrom.
156. Even in the matter of determining the deficiency in medical service, it is now well settled that if representation is made by a doctor that he is a specialist and ultimately in turns out that he is not, deficiency in medical services would be presumed. We may notice some of the decisions in this behalf. In Savita Garg V. National Heart Institute this Court opined : (SCC p. 61, para5).
5. It is a common experience that when a patient goes to a private clinic, he goes by the reputation of the clinic and with the hope that proper care will be taken by the hospital authorities. It is not possible for the patient to know which doctor will treat him. When a patient is admitted to a private clinic/hospital, it is the hospital/clinic which engages the doctors for treatment. They charge fees for the services rendered by them and they are supposed to bestow the best care.
D.4. Individual liability of the doctors
157. There cannot be, however, any doubt or dispute that for establishing medical negligence or deficiency in service, the court would determine the following:
(i) No guarantee is given by any doctor or surgeon that the patient would be cured.
(ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.
(iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.
(iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses.
Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.
(v) In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability.
Bearing in mind the aforementioned principles, the individual liability of the doctors and hospital must be judged.
158. We enumerate heretobelow the duty of care which ought to have been taken and the deficiency whereof is being complained of in the criminal case and the civil case, respectively, so far as Respondents 1 to 3 are concerned.
159. When Dr. Mukherjee examined Anuradha, she had rashes all over her body and this being the case of dermatology, he should have referred her to a dermatologist. Instead, he prescribed depomedrol for the next 3 days on his assumption that it was a case of vasculitis. The dosage of 120 mg depomedrol per day is certainly a higher dose in case of a TEN patient or for the matter any patient suffering from any other bypass or skin disease and the maximum recommended usage by the drug manufacturer has also been exceeded by Dr. Mukherjee. On 11.5.1998, the further prescription of depomedrol without diagnosing the nature of the disease is wrongful act on his part.
160. According to general practice, long-acting steroids are not advisable in any clinical condition, as noticed hereinbefore.
However, instead of prescribing a quick-acting steroid, the prescription of a long-acting steroid without foreseeing its implications is certainly an act of negligence on Dr. Mukherjees part without exercising any care or caution. As it has been already stated by the experts who were cross-examined and the authorities that have been submitted that the usage of 80-120 mg is not permissible in TEN. Furthermore, after prescribing a steroid, the effect of immunosuppression caused due to it, ought to have been foreseen. The effect of immunosuppression caused due to the use of steroids has affected the immunity of the patient and Dr. Mukherjee has failed to take note of the said consequences.
161. After taking over the treatment of the patient and detecting TEN, Dr. Halder ought to have necessarily verified the previous prescription that has been given to the patient. On 12.5.1998 although depomedrol was stopped, Dr. Halder did not take any remedial measures against the excessive amount of depomedrol that was already stuck in the patients body and added more fuel to the fire by prescribing a quick-acting steroid prednisolone at 40 mg three times daily, which is an excessive dose, considering the fact that a huge amount depomedrol has been already accumulated in the body.
162. Lifesaving supportive therapy including IV fluids/electrolyte replacement, dressing of skin wounds and close monitoring of the infection is mandatory for proper care of TEN patients. Skin (would) swap and blood tests also ought to be performed regularly to detect the degree of infection. Apart from using the steroids, aggressive supportive therapy that is considered to be rudimentary for TEN patients was not provided by Dr. Halder.
163. Further vital signs of a patient such as temperature, pulse, intake-output and blood pressure were not monitored. All these factors are considered to be the very basic necessary amenities to be provided to any patient, who is critically ill.
The failure of Dr. Halder to ensure that these factors were monitored regularly is certainly an act of negligence. Occlusive dressing were carried out as a result of which the infection had been increased. Dr. Halders prescription was against the Canadian Treatment Protocol reference to which we have already made hereinbefore. It is the duty of the doctors to prevent further spreading of infections. How that is to be done is the doctors concern. Hospitals or nursing homes where a patient is taken for better treatment should not be a place for getting infection.
164. After coming to know that the patient is suffering from TEN, Dr. Abani Roy Chowdhury ought to have ensured that supportive therapy had been given. He had treated the patient along with Dr. Halder and failed to provide and supportive therapy or advise for providing IV fluids or other supplements than is a necessity for the patient who was critically ill.
165. As regards, individual liability of Respondents 4, 5 and 6 is concerned, we may notice the same hereunder. As regards AMRI, it may be noticed :
(i) Vital parameters of Anuradha were not examined between 11.5.1998 to 16.5.1998 (body temperature, respiration rate, pulse, BP and urine input and output).
(ii) IV fluid not administered. (IV fluid administration is absolutely necessary in the first 48 hours of treating TEN).
166. As regards, Dr. Balaram Prasad, Respondent 5, it may be noticed:
(i) Most doctors refrain from using steroids at the later stage of the disease due to the fear of sepsis, yet he added more steroids in the form of quick-acting prednisolone at 40 mg three times a day.
(ii) He stood as a second fiddle to the treatment and failed to apply his own mind.
(iii) No doctor has the right to use the drug beyond the maximum recommended dose.
D.5 Conclusion
168. We remit the case back to the Commission only for the purpose of determination of the quantum of compensation.
DEVELOPMENTS SUBSEQUENT TO THE REMAND OF THE MATTER TO THIS COMMISSION 3.1. After the remand of the matter to this Commission, several important developments have taken place which we would like to recapitulate.
3.2. After the remand of the matter, two applications bearing MA No. 1266 of 2009 and 1297 of 2009 were moved by the complainant. In the Application MA No. 1266 of 2009, the complainant prayed for substitution of the LRs of opposite party No. 3, namely, Dr. Abani Roy Chowdhury who was reported to have died after the Supreme Court decided the appeals and remanded the matter to this Commission. However, the complainant did not wish to proceed against the LRs of opposite party No. 3 and had foregone the portion of the claim for compensation that might be determined against them on apportionment of the compensation. The said application was disposed of accordingly.
In MA No. 1298 of 2009, the complainant simply prayed for deleting the name of OP No. 6 Dr. Kaushik Nandy who was exonerated of any negligence by the Supreme Court. The prayer was accordingly allowed and name of Dr. Kaushik Nandy was deleted from the array of parties vide order dated 24.11.2009.
3.3. Thereafter, MA No. 13 of 2010 was moved on behalf of the AMRI Hospital under Order 1 Rule 10 read with Section 151 CPC for impleading Breach Candy Hospital, Mumbai as opposite party on the allegations that deceased Anuradha was treated in AMRI for six days only from 11th to 16th May, 1998 and thereafter she was treated at Breach Candy Hospital, Mumbai for 12 days from 17th May to 28th May, 1998, where she breathed her last. It was also pointed out that before filing the present complaint, the complainant had sent legal notice to as many as 26 persons including Breach Candy Hospital, Mumbai, its Doctors and Directors, alleging deficiency in service on their part as well and, therefore, the said hospital and its doctors were necessary parties in the complaint even for deciding the question of determination of compensation. It was also stated that after filing the present complaint, the complainant had filed another complaint OP No. 179 of 2000 against Breach Candy Hospital and others claiming a compensation of Rs. 25.30 crore which was dismissed as withdrawn on 25.7.2003. The said application, was however, dismissed as misconceived by this Commission vide order dated 15.02.2010. Afterwards, another MA No. 200 of 2010 was filed by the complainant on 22.2.2010 seeking permission to take on record expert opinion of four foreign experts alongwith supporting documents. Opposite Parties opposed the applications by filing reply and the application remained pending before this Commission for quite some time and this Commission by taking into account the observations and operative portion of the Supreme Court judgment under the heading Summary, dismissed the said application vide order dated 26.4.2010 by observing as under:
We have to go strictly by the directions given by the Supreme Court in the said order allowing / dis-allowing the application for taking on record four affidavits of Dr. John Broughton, Ms. Angela Hill, Dr. Joe Griffith and Dr. John F. Burke Jr. In our view, above order does not permit the complainant to file affidavits of witnesses. What has been permitted is that if any foreign experts are to be cross-examined, it can be done through videoconferencing and at the cost of the opposite parties. Application thus, deserves to be dismissed.
Accordingly, the application is dismissed. We hasten to add that we have not expressed our opinion about the said four persons being or not being experts touching the determination of the income of late Ms. Anuradha Saha.
3.4. Another MA No. 1327 of 2009 was moved on behalf of the complainant with the prayer to rectify the typographical error in the heading of the affidavit wherein there was a reference to the affidavits of three foreign experts having been filed together with other documentary evidence.
According to the complainant, the affidavits referred to in para 3 of the said affidavit were of Prof. John Broughton, Ms. Angila Hill and Mr. D. Joe Griffith. The said application was opposed by the opposite parties and was ultimately dismissed as withdrawn vide order dated 09.2.2010.
3.5. Yet another application No. 594 of 2010 was filed by the complainant praying for recording the statement of four persons / experts detailed in para No. 8 of the application through videoconferencing. The said application was decided by this Commission vide order dated 17.05.2010 by observing as under:-
Reading of the remand order dated 07.8.2009 in its entirety would show that the complainant has not been permitted to lead additional evidence on the point of quantum of compensation and apportionment thereof between the said opposite parties and complaint has to be decided on the basis of material available on record.
Further, as regards recording of the statements of said four foreign experts, it may be stated that there is difference between an expert witness and an ordinary witness. Expert witness is one who has a special skill or knowledge on a subject and is not a witness of fact. Determination of compensation and apportionment thereof has to be based on facts. Indisputably, affidavits of aforesaid four persons was declined to be taken on record and read in evidence vide order dated 26.4.2010. Presumably, the statement of the above foreign experts would be on the lines of their affidavits were filed. By the order dated 17.5.2010 the Supreme Court has permitted the complainant to file application only in terms of the order dated 07.8.2009. For deciding the issue in question, the statements of aforesaid persons who are strictly not the foreign experts cannot be permitted to be lead by the complainant. Application, thus, deserves to be dismissed being without any merit. Dismissed as such.
3.6. It is also pertinent to note that the opposite parties-Dr. Sukumar Mukherjee, Dr. B. Halder (Baidynath) and Dr. Balram Prasad and AMRI had filed Review Petitions before the Supreme Court seeking review of the order dated 07.08.2009 raising several pleas but a Coordinate Bench of the Honble Supreme Court dismissed all the review petitions so filed by the opposite parties. However, on an application, I.A. No. 6 of 2009 moved on behalf of the complainant, the Supreme Court vide order dated 23.11.2009 directed some typographical correction to be made in para 148 of the order dated 09.8.2009 by directing that the figure $ 2000 shall be substituted with the figure $ 20000. Subsequently, vide an order dated 07.4.2011 passed by the Supreme Court in SLP 27071of 2010, the Supreme Court clarified the position in regard to the recording of evidence of expert witnesses namely Prof. John Broughton, Ms. Angila Hill and Mr. D. Joe Griffith and Dr. John F. Burke, Economist, through internet conferencing to be recorded by the Local Commissioner, Shri R.S. Chhabra, Former Joint Registrar, Delhi High Court. The said Local Commissioner recorded the evidence of Dr. Burke only on 26.4.2011 as Dr. Broughton could not be made available for recording his testimony due to his pre-occupation / non availability.
PRESENT BRIEF / TASK OF THE COMMISSION IN TERMS OF ORDER OF THE SUPREME COURT DATED 07.08.2009 4.1 Going by the directions of the Supreme Court contained in paragraph 168 read with para 174, the present task of the Commission is confined to the determination of adequate compensation which this Commission should award to the complainant bearing in mind the relevant facts and circumstances, evidence and material brought on record and the findings recorded and observations made by the Supreme Court in the order dated 07.8.2009. Apparently the task seems to be simple but as has been observed by the Supreme Court in several of its decisions, the task is not only a difficult but a baffling one. Peculiarity and complexities of the facts and circumstances of the present case will make it more difficult. Still difficult would be the task of apportionment of the liability to pay the compensation so determined by this Commission amongst the subsisting opposite parties. It requires a detailed exercise by this Commission. It was perhaps for this reason that the Supreme Court has entrusted this task to this Commission even after recording the findings of medical negligence / deficiency in service on the part of the opposite parties. This we are stating with great humility and respect we command for the Apex Court.
OPPOSITE PARTIES ATTEMPT TO DILUTE THE FINDINGS OF THE SUPREME COURT 5.1 We have heard Dr. Kunal Saha, complainant in person and Mr. Krishnamani, Sr. Advocate, Mr. T.V. George, Advocate representing him, Mr. R.K. Anand, Sr. Advocate representing opposite party No. 1, Dr. Sukumar Mukherjee, Mr.Sukumar Pattjoshi, Advocate for Dr. B.Halder, Mr. Aseem Mehrotra, Advocate representing AMRI and Mr. Suchit Mohanty, Advocate, representing Dr.Balram Prasad at length over a period of several days and have given our anxious consideration to their submissions.
5.2. Before we proceed to the main task of determination of compensation in terms of the directions of the Supreme Court, we cannot, but refrain from pointing out that a vain attempt was made on behalf of the opposite parties to either come out of the rigors of the findings and observations made by the Supreme Court or to at least read it down or dilute the same to a certain extent. Attempt was also made to read in between lines in the Supreme Court order as also to show that certain findings/observations made in the order are against the facts and material brought on record. We must disapprove such an attempt because firstly in terms of Article 141 of the Constitution, this Commission or for that reason any other Court, Tribunal or Authority established under the Constitution or by a Statute is duty bound to give effect to the orders made and directions given by the Supreme Court and secondly, in the present case, the Commission is simply carrying out the limited task entrusted to it to determine the compensation in terms of the said findings/observations and directions given by the Supreme Court. As the judgment has been rendered by the Supreme Court in the case in hand, not only the ratio decidendi of the said decision but even the obiter dicta is binding on this Commission. Therefore, it cannot even think of reappraising any of the findings and observations made by the Supreme Court. This is more so for the additional reason that the review petitions filed by the opposite parties, wherein they had raised numerous pleas, have been dismissed by the Supreme Court. We, therefore, cannot allow any attempt made by the opposite parties either to read down or come out of the order of the Supreme Court. We are, however, inclined as we are legally bound to consider all other submissions relevant to the question of determination of adequate compensation as directed by the Supreme Court.
ALLEGED MITIGATING FACTORS 6.1. In their attempt to show that there exist several mitigating factors which have great bearing on the question of determination of compensation, counsel for the opposite parties made lengthy arguments which we propose to deal one by one.
6.2. Mr.R.K.Anand, Senior Advocate representing Dr.Sukumar Mukherjeee-opposite party no.1 strongly argued that even going by the findings of the Supreme Court holding Dr.Mukherjee guilty of medical negligence, still the nature and extent of the said negligence must be determined by this Commission and depending upon the same, the compensation be assessed. Counsel representing other opposite parties no. 2 to 4 also adopted the submissions made by Mr.Anand to the extent that these are relevant to those opposite parties. In the first instance, it was argued that Dr.Mukherjee has been held guilty of medical negligence by the Apex Court for making wrong diagnosis of the disease with which Anuradha was suffering and for prescribing a wrong drug Depo-medrol and that too in high doses. In this connection, he submitted that first time Dr. Mukherjee was consulted by Anuradha was on 26.4.1998 for the complaint of rashness over the body and fever. On her examination on 26.4.1998, Dr. Mukherjee, suggested a host of pathological tests and the patient was advised to visit Dr. Mukherjee again with the reports of those pathological tests. At that time no medicines/drugs were prescribed by Dr. Mukherjee. It was on 07.5.1998 at about 9.30 P.M. that Anuradha came to the clinic of Dr. Mukherjee, second time and reported that she was uncomfortable because she had consumed some Chinese food. Dr. Mukherjee on her examination, noted that there was a definite change in the nature of rashes and therefore, based on the information furnished to him and taking note of her clinical conditions, Dr. Mukherjee, diagnosed that she was suffering from Allergic Vasculitis and advised Depomedrol, a steroids to be taken in the dose of 80 mg. IM twice daily for three days, after which, the case was to be reviewed by him. Mr. Anand submitted that the treatment of the disease by Depomedrol is very much indicated. In this regard, a reference has been made to ISPDI, 1994, which states that Depomedrol is anti-inflammatory, anti-allergic drug.
Therefore, it is Doctors judgment to use the drug. It is pointed that Dr. Mukherjee administered one injection of Depomedrol on that night and after that he is not aware if the drug was continued for another three days or not. Dr. Mukherjee examined Anuradha third time on 11.5.1998 at about 2.15 P.M. when she was admitted in AMRI Hospital and he prescribed a whole line of treatment and organized reference to different specialists / consultants. It is strongly argued that Dr. Mukherjee did so because he was scheduled to leave Kolkala on the same evening in order to attend a conference in United States of America and had in fact left Kolkata on that evening.
It is also pointed out that immediately, after his examination of the patient at the Hospital, renowned Dermatologist Dr. A.K. Ghosal who diagnosed the disease of Anuradha as TEN and prescribed the same medicine Depomedrol to be continued and therefore, the injection (s) Depomedrol given after 11.5.1998 can be said to have been given on the prescription of Dr. Ghoshal rather than that of Dr.Mukherjee. Mr. Anand contended that Dr. Mukherjee cannot be blamed and held guilty of negligence for prescribing the said injection of the said drug at least after 11.05.1998 because the same treatment was advised by the other consultant(s). In any case there is nothing on record that the treatment / drug was continued after 11.05.1998.
6.3. Mr. Anand then vehemently submitted that Dr. Mukherjee cannot be held responsible for having caused the death of Anuradha. The basis of this submission is that as per the Death Certificate issued by Breach Candy Hospital, Mumbai, the cause of death of Anuradha is Septicesmic shock with Multi System Organ Failure in a case of TEN leading to cardio respiratory arrest. It is also pointed out that no autopsy was conducted on the body of Anuradha in order to confirm the exact cause of death.
In any case, it is pointed out that as per the medical record of the Breach Candy Hospital, blood culture of Anuradha was negative a day or two prior to her death, meaning thereby that Anuradha had not died on account of excessive dose of Depomedrol advised by Dr. Mukherjee. Attention of the Commission has also been invited to the factual position that although the complainant had shifted Anuradha from AMRI Hospital, Kolkata to Breach Candy Hospital, Mumbai with clear understanding that Anuradhas treatment and management will be done in a better way viz. by the process of Plasma Pherrosis but it was not carried out at the Breach Candy Hospital. It is suggested that had the patient undergone the process of plasma pherrosis as was envisaged, perhaps the effect of the offending drug could have been removed. It is argued that above limited negligence / deficiency on the part of Dr. Mukherjee must be considered keeping in view all these factors.
PLEA AS TO THE CUMULATIVE NEGLIGENCE 7.1. The main plank of the submissions of Mr. Anand and other counsel representing the other opposite parties is that the award of compensation should be decided on the basis of cumulative effect of the negligence of not only of the four subsisting opposite parties but also of other actors (the term used by the Honble Supreme Court in its Judgment) who in the reckoning of the complainant were also equally or even more negligent / deficient in providing treatment to Anuradha. In this regard our attention is invited to the factual position that besides the present four opposite parties, the complainant had consulted Dr. Sanjay Ghosh and Dr. A.K. Ghosal, besides Dr. Abani Roy Chowdhury and Dr. Kaushik Nandi (the latter having been exonerated by the Supreme Court) as also the Breach Candy Hospital, its Doctors and Directors. It is pointed out that the complainant got issued a legal notice dated 23.09.1998 to as many as 26 persons including Dr. Sanjay Ghosh, Dr. A.K. Ghosal, the Breach Candy Hospital and its Doctors and Directors, alleging medical negligence / deficiency in service on their part. Our attention has also been invited to the fact that after filing the present complaint, the complainant had filed another complaint bearing No. 179 of 2000 claiming a total compensation of Rs.
25,30,00,000/- from Breach Candy Hospital, its doctors and Directors, which complaint he withdrew on 25.7.2003 without giving any reasons. Mr. Anand submitted that any amount of compensation so assessed by this Commission should not only be apportioned amongst the four opposite parties but amongst all the above referred parties so that it does not become unbearable to the subsisting opposite parties. It was argued that apportionment of the quantum of compensation must be determined keeping in mind the observations of the Honble Supreme Court about the cumulative incidence and involvement of various actors which led to the death of Anuradha.
CONTRIBUTORY NEGLIGENCE OF THE COMPLAINANT 8.1. It was also submitted that while determining the compensation, this Commission should take note of the contributory negligence on the part of the complainant himself arising on account of his frequent interference in the treatment of Anuradha at AMRI Hospital as also at Breach Candy Hospital.
8.2. In addition to the general submissions made on behalf of Dr. S. Mukherjee, Mr. Aseem Mehrotra, learned counsel representing AMRI Hospital has pointed out yet another mitigating factor having a bearing on the question of determination of adequate compensation viz., the contributory negligence on the part of the complainant arising from his persistent conduct in interfering in the treatment of Anuradha during the period of her stay in AMRI Hospital from 11.5.1998 to 16.5.1998 and thereafter, at Breach Candy Hospital, Mumbai. In this connection, our attention has been invited to the evidence led on behalf of AMRI hospital through affidavit of Satyabrata Upadhyay, Vice President, AMRI Hospital, who made a categorical deposition that the complainant continued to interfere in the treatment of Anuradha and did not allow the Doctor and Para-medical staff to conduct the necessary tests, procedures etc. He deposed that :
(i) The complainant declined skin biopsy to be conducted on Anuradha under any circumstance because he (complainant) perceived that it could lead to skin infection;
(ii) He also stated that the complainant was all along present in the special room of Hospital where Anuradha was kept for her treatment and sought to regulate the entry of medical consultants / nursing staff into the said room and therefore the para-medical staff could not monitor the various health parameters of the Anuradha and record the same.
(iii) The complainant being himself qualified Medical Professional tried to interfere in the regime of the treatment in as much as it was at his instance that the deceased patient could not be put on IV fluid as the complainant felt that it would lead to infection.
(iv) The complainant did not allow the opposite party No. -6 Dr. Nandi Kaushik Consultant Plastic Surgeon to put the required dressing, which were ideally required given the condition of the patient.
(v) Suggestions of other consultants (not impleaded in the present complaint) could not be fully carried out due to persistent interference of the complainant as the complainant felt that the deceased patient should receive minimum contact with any medical consultant / nursing staff at the institute. The affidavit also unfolds that they fed up with the repeated interference by the complainant in the treatment regime of the deceased patient, the Management of the Institute verbally requested the complainant either to desist from interference in the treatment or to transfer the patient elsewhere in his own risk and that the complainant assured that he would not interfere with the treatment but despite such assurance, such interference continued unabated throughout the time the patient was at the Institute.
8.3. Reference was then invited to the evidence of Dr. Balram Prasad, who was examined as a prosecution witness in the criminal proceedings. In his cross-examination, the said witness (Dr. Balram Prasad) stated that he had advised for biopsy by Dr. Naseer Iquebal but when Dr. Iquebal went to do the biopsy, the patient and her husband (complainant) were not interested to undergo the skin biopsy. In regard to another question, Dr. Balram Prasad maintained that he sought advice from Dr.Kafeel Ahmed, noted ENT consultant attached to AMRI Hospital for further consultation regarding easy intake of oral feeding and overall condition of mouth cavity who advised Xylocaine Viscous but the complainant emphatically prevented him (Dr. Balram Prasad) to put Ryles Tube to maintain proper nutrition on the ground that this could cause physical discomfort to the patient.
8.4. Attention was then invited to the testimony of D.W. 1 Smt. Sutapa Chanda, Nursing Superintendent of AMRI Hospital, examined as Defence Witness from the side of the Hospital in the criminal proceedings. In response to a question about her visit of the patient and stay in her room, the above named witness stated that she did not spend much time in Anuradhas Cabin since Dr. Kunal Saha did not allow her to attend to Mrs. Saha for a long period as Dr. Saha restricted such stay. In regard to the question about the recording of the vital parameters like BP, Temperature, Pulse and respiratory record, the witness clarified that the same could be recorded on 11.5.1998 at 10 a.m. and 10 p.m. and also on 12.5.1998 at 6 a.m. and 10 p.m. but, it could not be recorded on later dates due to the interference of the complainant. She further deposed that the complainant did not give consent for change of dressing by Dr. Kaushik Nandy, Plastic Surgeon. On going through the record of treatment of Anuradha between 11.5.98 to 17.5.98, she maintained that the complainant refused the dressing of the patient on 15.5.1998 and 16.5.1998.
Similarly, she further stated that on 17.5.98, IV line was started on the patient because it was felt that IV fluid access was necessary during her long journey outside the hospital. She also maintained that Dr. Saha had put severe impediments for doctors and nursing staff to treat the patient.
8.5. Our attention is then invited to the observations made by the doctors of Breach Candy Hospital immediately on her arrival late in the evening of 17.5.1998.
Mrs. Anuradha Saha has been admitted to Breach Candy Hospital on 17.5.1998 at night 9.30 p.m. Her condition on admission is serious. She has been accompanied by her husband Dr. Saha, who has given the history of antibiotic injection for respiratory tract injection, rovamycin, routhromycin, ampicillin and ampiclox and nemuslide followed by development of Toxic Epidermal Necrolysis.
She has received T predinisolone 120 mg/day for 7 days and also injection depomedrol IM x 3 days. She has been haemodynamically stable till now. She is able to swallow liquids, which has been her only nourishment over the past few days.
However, some differences between Kunal and his elder brother on one hand and Dr. Udwadia persisted. He noted as under:
Have had great problems with the husband and brother-in-law. It is with great difficulty that I have controlled myself. When presented with his arrogance and condescends merely and solely for the patients sake. To keep the peace, I have compromised on the following:
To allow the use of erythropoietin, I reasoned that though it cannot do much good, it does not do harm.
To allow the use of zinc preparation totally unnecessary but not likely to lead to zinc poisoning.
I would not allow parenteral alimentation through the same central line as fluids and electrolytes as I feel that gut if viable used at IV alimentation at this point of time may add to her hazards.
Her condition was better during 24.5.1998 and 25.5.1998. She, however, breathed her last on 28.5.1998.
8.6. As against the above, complainant submitted that there was no contributory negligence on his part arising out of the alleged interference by him in the treatment of Anuradha and what he did or alleged to have been done was in the larger interest of the patient based on the established medical practice and protocol rather than should be seen as an attempt to jeopardize the regime of treatment. In any case, his submission is that all these circumstances were highlighted before the Supreme Court during the course of arguments in appeal and the Supreme Court on consideration of the same has ruled out that there was any interference by the complainant during the treatment. In this connection, complainant has referred to the observations made by the Supreme Court in para 123, which reads as under:
To conclude, it will be pertinent to note that even if we agree that there was interference by Kunal Saha during the treatment, it in no way diminishes the primary responsibility and default in duty on part of the defendants. Inspite of a possibility of him playing an overanxious role during the medical proceedings, the breach of duty to take basic standard of medical care on the part of defendants is not diluted. To that extent, contributory negligence is not pertinent. It may, however, have some role to play for the purpose of damages.
8.7. On the other hand Mr. Mehrotra submitted that the Supreme Court though holding that there was possibility of the complainant playing an overanxious role during the medical treatment, the question of contributory negligence was not pertinent but at the same time, it was observed by the Supreme Court that this contributory negligence on the part of the complainant have some role to play for the purpose.
We have therefore no manner of doubt that the above noted circumstances of interference which can be said to have been established on record are relevant for the purpose of determination of the extent of compensation.
8.8. The next submission put forth on behalf of the AMRI Hospital is in regard to the liability of the hospital to pay any compensation much less the compensation claimed by the complainant from it either on account of pecuniary or non-pecuniary damages or special damages. This contention is based primarily on the submission that the complainant has impleaded some of the treating doctors in the complaint, leaving out certain doctors like Dr. A.K. Ghosal and had made certain general and specific allegations of negligence in the treatment of Anuradha. The complainant was not justified in impleading the hospital as one of the opposite parties more so when it is the admitted position that the hospital had no role to play except to provide the requisite infrastructure and medical care in terms of the advice given by various specialists and consultants which was duly followed. It was also stated that the above named doctors were only consultants attached to the AMRI Hospital and were not on the pay roll of the hospital and therefore, the hospital cannot be held vicariously liable for any medical negligence / deficiency in treatment committed by the said consultants. On the other hand, the complainant contended that the hospital cannot escape its liability and in that submission he has relied upon the decision of the Supreme Court in the case of Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56. In that case, Supreme Court considered the question whether non-joinder of the treating doctor(s) and nursing staff can result in the dismissal of the complaint. The Supreme Court answered the same in negative. Mr. Mehrotra made an attempt to interpret the said decision of the Supreme Court in the manner that the said decision did not lay down a principle that if the doctors have been impleaded in their individual capacities, slapped with claim of special damages and were held negligent, still the hospital would be liable for the acts of the negligence of the doctors.
We must reject this contention in view of the specific finding recorded by the Supreme Court against the hospital for their failure to take the requisite steps in the treatment of Anuradha. However, what would be the extent of the liability of the AMRI Hospital to pay compensation on account of the pecuniary and non-pecuniary damages or special damages will be considered by us in the later part of this order keeping in view the totality of the facts and circumstances.
PRINCIPLES / CRITERIA FOR DETERMINATION OF COMPENSATION 9.1. Before we begin the exercise of determination of compensation and its apportionment amongst subsisting opposite parties, it is necessary to bear in mind the principles of determining compensation in a case like the present one.
In para 169 of the judgment, the Supreme Court while remitting the matter to this Commission for the purpose of determination of compensation has itself to a great extent afforded the guidelines by making reference to a number of decisions of the Supreme Court which have great bearing on the question. We consider it appropriate to reproduce the ratio of the said cases as culled out by the Supreme Court in paragraph 169 to 174:
The principles of determining compensation are well-known. We may place on record a few of them.
In Oriental Insurance Company Limited v. Jashuben this Court held:
"28. We, therefore, are of the opinion that what would have been the income of the deceased on the date of retirement was not a relevant factor in the light of peculiar facts of this case and, thus, the approach of the Tribunal and the High Court must be held to be incorrect. It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f. 1.1.1997 or what would have been the scale of pay in 2002.
29. The loss of dependency, in our opinion, should be calculated on the basis as if the basic pay of the deceased been Rs. 3295 X 2 = Rs. 6590/-, thereto should be added 18.5% dearness allowance which comes to Rs. 1219, child education allowance for two children @ Rs. 240 X 2 = Rs.
480 and child bus fair Rs.
160 X 2 = Rs. 320 should have been added which comes to Rs. 8,609.
30. From the aforementioned figure 1/3rd should be deducted. After deduction, the amount of income comes to Rs. 5,738/- per month [Rs. 8609 - Rs. 2871] and the amount of compensation should be determined by adopting the multiplier of 13, which comes to Rs. 8,95,128.
31. In the present case, the High Court itself has applied the multiplier of 13. We are of the opinion that no interference therewith is warranted. We furthermore do not intend to interfere with the rate of interest in the facts and circumstance of the case.
170 Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum.
The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. [See Livingstone v. Rawyards Coal Co.]
171. When a death occurs the loss accruing to the dependent must be taken into account; the balance of loss and gain to him must be ascertained ; the position of each dependent in each case may have to be considered separately [ See Davis v. Powell Duffryn Associated Collieries Ltd]. The said principle has been applied by this Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami.
172. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife's contribution to the family in terms of money can always be worked out. Every housewife makes contribution to her family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband's income, etc.
173. This Court, we may notice, has laid down certain norms for grant of compensation for the death of members of family including the loss of child in some of its decisions. [See Lata Wadhwa v. State of Bihar and R.K. Malik v. Kiran Pal.
174. In R.D. Hattangadi v. Pest Control (India) (P) Ltd. this Court observed:
Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial;
(iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened;
(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
The Commission must, therefore, while arriving at the adequate compensation bear in mind all these relevant facts and circumstances.
9.2. In addition to the above decisions referred in the Supreme Court judgment, the counsel for the parties have relied upon some more cases having bearing on the question of determination of compensation. These cases relate to fatal accidents entitling the victim or dependent of the victim to compensation under the provisions of Motor Vehicle Act, 1939 and Motor Vehicle Act, 1988. Some of these decisions have been rendered by the Supreme Court after the decision in the case in hand and, therefore, cannot be ignored and required to be considered by this Commission. From the side of complainant, reliance has been placed on the following decisions:
1. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. [ 2010 SCC (5) 513.];
2. Ningamma & Anr. Vs. United India Insurance Co. Ltd. (Civil Appeal No. 3538 of 2009);
3. Malay Ganguly Vs. Sukumar Mukherjee & Ors. [ 2009 SCC (9) 221]
4. R.K.Malik & Anr. Vs. Kiran Pal & Ors.
[ 2009 SCALE (8) 451]
5. Nizam Institute of Medical Sciences Vs. Prasanth S. Dhanaka & Ors. [ 2009 (6) SCC 1 ]
6. Oriental Insurance Company Vs. Jashuben & Ors. [ 2008 SCC (4) 162 ]
7. Savita Garg (Smt.) Vs. Director, National Heart Institute [ 2004 SCC (8) 56 ] 9.3. Mr. R.K.Anand, Sr. Advocate appearing for OP No.1- Dr. Sukumar Mukherjee has referred to following decisions:
1. Lata Wadhwa & Ors. Vs. State of Bihar & Ors. [ 2001] 8 SCC 197.
2. State of Haryana and Another Vs. Jasbir Kaur & Ors. (2003) 7 SCC 484.
3. Sarla Verma (Smt) & Others Vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121.
4. C.P. Sreekumar (Dr.). MS (Ortho) Vs. S. Ramanujam (2009) 7 SCC 130.
Support is also sought from a single Bench decision of Delhi High Court in the case of Dr.Gunda Neubauer Vs. Bhanwar Singh & Ors. MAC Appeal 729/2007 & CM Appln. No.17303/2007 decided on 25th May, 2010.
9.4. Mr. R.N.Mukherjee, learned counsel representing Balram Prasad-opposite party no. 4 has also referred to the following decisions:
1. General Manager, Kerela State Road Transport Corporation, Trivandrum Vs. Susamma Thomas ( Mrs. ) & Others (1994) 2 SCC 176.
2. Arun Kumar Agrawal & Another Vs. National Insurance Company Limited and Others (2010) 9 SCC 218.
9.5. Mr. Aseem Mehrotra, learned counsel representing AMRI hospital and Mr.Sukumar Pattjoshi, Advocate have also relied upon the same decisions so far as the principles of determination of compensation is concerned.
It may be noted that most of the above referred decisions laid down the principles of determination of compensation / criteria in cases arising out of the provisions of erstwhile and present Motor Vehicle Act, which provide for award of suitable compensation to the victim of motor accident or to the dependents of the victim of fatal motor accident. Some decisions, however, lay down the criteria for determination of compensation in the cases of death of a patient due to medical negligence of the medical professionals or deficiency in service on the part of the hospital. However, the fact remains that even for determining the compensation in the cases arising out of negligence of medical professional or medical centres like hospitals, institutes and Nursing Homes by and large the principle and criteria laid down by the Supreme Court in relation to the cases arising out of the claim of compensation under Motor Vehicle Act has been generally adopted as the basis. Here it would be apt to determine the evolution of this criteria / principles from some earlier stages. Although there were several judgments prior to the judgment of the Supreme Court in the case of General Manager, Kerela State Road Transport Corporation, Trivandrum Vs. Susamma Thomas ( Mrs. ) & Others it was perhaps for the first time that Supreme Court went into the question as to how the multiplier method was logically sound for determining the compensation.
Observations made by Justice M.N.Venkatchaliah (as His Lordship then was) in para 16 and 17 are quite apt which we would like to reproduce here:
It is necessary to reiterate that the multiplier method is logically sound and legally well-established.
There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years- virtually adopting a multiplier of 45-and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible.
We are, aware that some decisions of the High Courts and of this Court as well have arrived at compensation on some such basis. These decisions cannot be said to have laid down a settled principle. They are merely instances of particular awards in individual cases. The proper method of computation is the multiplier method.
Any departure, except in exceptional and extraordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability for the assessment of compensation. Some judgments of the High Courts have justified a departure from the multiplier method on the ground that Section 110-B of the Motor Vehicles Act, 1939 insofar as it envisages the compensation to be 'just', the statutory determination of a 'just' compensation would unshackle the exercise from any rigid formula. It must be borne in mind that the multiplier method is the accepted method of ensuring a 'just' compensation which will make for uniformity and certainty of the awards. We disapprove these decisions of the High Courts which have taken a contrary view. We indicate that the multiplier method is the appropriate method, a departure from which can only be justified in rare and extraordinary circumstances and very exceptional cases.
17. The multiplier represents the number of years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs 10,000.
If a sum of Rs 1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10.
If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs 10,000 would be
20. Then the multiplier, i.e., the number of years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependents, whichever is higher) goes up.
9.6. In the case of Lata Wadhwa & Ors. Vs. State of Bihar & Ors. [ 2001] 8 SCC 197 , the Supreme Court reiterated the above view but this decision considers the additional dimension as to what should be the basis for arriving at a just compensation in case the deceased was non earning person, say a house wife. In that context, the Supreme Court laid down that even at modest estimation, the contribution of such house wife to the family should be considered a minimum of Rs.3000/- per month and Rs.36000/- per month by observing as under:
So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation, on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs.12,000/- per annum in cases of some and Rs.10,000/- for others, appears to us to be grossly low. It is true that the claimants, who ought to have given datas for determination of compensation, did not assist in any manner by providing the datas for estimating the value of services rendered by such housewives. But even in the absence of such datas and taking into consideration, the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs.3000/- per month and Rs.36,000/- per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore should be re-calculated, taking the value of services rendered per annum to be Rs.36,000/- and thereafter applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs.50,000/- instead of Rs.25,000/- given under the Report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs.10,000/- per annum and multiplier applied is eight. Though, the multiplier applied is correct, but the values of services rendered at Rs.10,000/- per annum, cannot be held to be just and, we, therefore, enhance the same to Rs.20,000/- per annum. In their case, therefore, the total amount of compensation should be re-determined, taking the value of services rendered at Rs.20,000/- per annum and then after applying the multiplier, as already applied and thereafter adding Rs.50,000/- towards the conventional figure.
9.7. In the case of Sarla Verma (Smt) & Others Vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the Supreme Court has considered the question in greater details and crystallized the following legal position by observing as under:
Assessment of compensation though involving certain hypothetical considerations should nevertheless be objective. Further the compensation awarded does not become just compensation merely because the Tribunal considers it to be just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.
Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. Therefore, if different Tribunals calculate compensation differently on the same facts the claimant, the litigant, the common man will be confused, perplexed and beweildered. If there is significant divergence among the Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system.
. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased; and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity 11 and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
Thus, To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency' to the family.
Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.
The general principles Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of compensation in cases of death. Earlier, there used to be considerable variation and inconsistency in the decisions of courts Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. and some adopting the Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd.
The difference between the two methods was considered and explained by this Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [1994 (2) SCC 176]. After exhaustive consideration, this Court preferred the Davies method to Nance method.
We extract below the principles laid down in Susamma Thomas:
"In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death:
The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether."
The matter of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year's purchase."
The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific . For instance, if the deceased was, say 25 year of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years - virtually adopting a multiplier of 45 - and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible."
In UP State Road Transport Corporation vs. Trilok Chandra, this Court, while reiterating the preference to Davies method followed in Susamma Thomas, stated thus In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a bearing on the uncertainties of life, such as, premature death of the deceased or the dependent, remarriage, accelerated payment and increased earning by wise and prudent investments, etc., would become necessary. It was generally felt that discounting on various imponderables made assessment of compensation rather complicated and cumbersome and very often as a rough and ready measure, one-third to one-half of the dependency was reduced, depending on the life-span taken. That is the reason why courts in India as well as England preferred the Davies' formula as being simple and more realistic. However, as observed earlier and as pointed out in Susamma Thomas' case, usually English courts rarely exceed 16 as the multiplier. Courts in India too followed the same pattern till recently when Tribunals/Courts began to use a hybrid method of using Nance's method without making deduction for imponderables.
.Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier."
The lack of uniformity and consistency in awarding compensation has been a matter of grave concern. Every district has one or more Motor Accident Claims Tribunal/s. If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed and bewildered. If there is significant divergence among Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system.
We may refer to the following observations in Trilok Chandra :
We thought it necessary to reiterate the method of working out `just' compensation because, of late, we have noticed from the awards made by Tribunals and Courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal/Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realized that the Tribunal/Court has to determine a fair amount of compensation awardable to the victim of an accident which must be proportionate to the injury caused."
Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated :
"So the proper method of computation is the multiplier method. Any departure, except in exceptional and extra-ordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation."
Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b)
(b) income of the deceased; and
(c) the number of dependents.
The issues to be determined by the Tribunal to arrive at the loss of dependency are
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) (iii) the multiplier to be applied with reference of the age of the deceased.
If these determinants are standardized, there will be uniformity 11 and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
12Question (i) - addition to income for future prospects Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects.
In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1032/- per month. Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2000/- as gross income before deducting the personal living expenses.
The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav, where the deceased was getting a gross salary of Rs.1543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3000/-. This court took the average of 13 the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2200/- per month.
In Abati Bezbaruah v. Dy. Director General, Geological Survey of India as against the actual salary income of Rs.42,000/- per annum, (Rs.3500/- per month) at the time of accident, this court assumed the income as Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.
In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words `actual salary' should be read as `actual salary less tax']. The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of 14 increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.
9.8 Now we come to the cases where the Court was concerned for determination of compensation in case of medical negligence on the part of the medical professionals and the hospitals etc. In the case of Nizam Institute of Medical Sciences Vs. Prasanth S. Dhanaka & Ors. (2009 (6) SCC 1), the Supreme Court going by the facts of the said case and nature and extent of negligence that paraplegia has set in the complainant due to the said negligence and that the complainant was a highly qualified individual gainfully employed as IT engineer having an income of Rs.28 lakhs per annum, the Court made the following observations:
We must emphasize that the Court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the Court must not be chary of awarding adequate compensation. The adequate compensation that we speak of, must to some extent, be a rule of the thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.
It must also be borne in mind that life has its pitfalls and is not smoot h sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualized. Life it is said is akin to a ride on a roller coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard.
The Supreme Court in the said case quantified the compensation as under:
Concededly, the complainant is a highly qualified individual and is gainfully employed as an IT Engineer and as per his statement earning a sum of Rs.28 Lakh per annum though he is, as of today, about 40 years of age. The very nature of his work requires him to travel to different locations but as he is confined to a wheel chair he is unable to do so on his own. His need for a driver cum attendant is, therefore, made out. The complainant has worked out the compensation under this head presuming his working life to be 66 upto the age of 65 years. We feel that a period of 30 years from the date of the Award of the Commission i.e.16th February, 1999, rounded off to Ist March, 1999, would be a reasonable length of time. A sum of Rs.2,000/- per month for a period of 30 years (rounded off from 1st of March 1999) needs to be capitalized. We, accordingly, award a sum of Rs.7.2 Lakh under this head.
The complainant has also sought a sum of Rs.49,05,800/- towards nursing care etc. as he is unable to perform even his daily ablutions without assistance. He has computed this figure on the basis of the salary of a Nurse at Rs. 4375/-per month for 600 months. We are of the opinion that the amount as claimed is excessive. We, thus grant Rs.4,000/-per month to the appellant for a period of 30 years making a total sum of Rs.14,40,000/-.
The complainant has further sought a sum of Rs.46 Lakhs towards physiotherapy etc. at the rate of Rs.4,000/- per month. We reduce the claim from Rs.4,000/- to Rs.3,000/- per month and award this amount for a period of 30 years making a total sum of Rs.10,80,000/-.
At this stage, it may be pointed out that some of the medical expenses that had been incurred by the complainant have 67 already been defrayed by the employer of the complainant's father and we are, therefore, disinclined to grant any compensation for the medical expenses already incurred. However, keeping in view the need for continuous medical aid which would involve expensive medicines and other material, and the loss towards future earnings etc., we direct a lump sum payment of Rs.25/-lakhs under each of these two heads making a total of Rs.50 lakhs. In addition, we direct a payment of Rs.10 lakh towards the pain and suffering that the appellant has undergone. The total amount thus computed would work out to Rs.1,00,05,000 (Rs.1 crore 5 thousand) which is rounded off to Rs. One Crore plus interest at 6% from Ist March, 1999 to the date of payment, giving due credit for any compensation which might have already been paid.
The complainant has also claimed a sum of Rs.2 crore to be put in deposit to be utilized by him in case some developments in the medical field make it possible for him to undergo further treatment so as to improve his quality of life. This claim is unjustified and hypothetical and is declined.
9.9. The complainant has heavily relied upon the decision of the Supreme Court in the case of United India Insurance Company Ltd. & Ors. Vs. Patricia Jean Mahajan & Ors.
[ 2002 SCC (6) 2810). In this case, a doctor of Indian origin had migrated to USA and had become a permanent citizen and visited India in February 1995 and he was traveling in car belonging to his brother. The car was hit by a truck. The doctor was injured and succumbed to his injuries. He was aged about 47-48 years at that time and left behind a widow and three children besides his aged parents in India. In his petition filed under section 166 of the Motor Vehicle Act, the dependents claimed a total compensation of Rs.54 crores. Having regard to the total income of the deceased and all other relevant factors, by applying the multiple of 7, the Motor Accident Claims Tribunal awarded compensation of Rs.1.19 crores with interest @ 12% p.a. from the date of filing of petition till the date of payment. The total amount came to Rs.1.62 crores. Not contended with the said quantum of award, the claimant filed appeal before the High Court and Judge of the High Court revised the total compensation to Rs.10 crore. Still not satisfied the claimants filed appeal before the Division Bench and the Division Bench applied the multiplier of 13 according to II Schedule of Motor Vehicle Act, enhanced the total compensation to Rs. 16.12 crores including the interest. Aggrieved by the said order, United India Insurance Company filed appeal before the Supreme Court. The Supreme Court considered the question of adequate compensation on several principles and remitted the matter to the MACT to calculate the amount of compensation in accordance with the order passed by the Supreme Court i.e. after taking into consideration the dependency amount as $ 2,26,297 and by applying the multiplier of 10 with interest @ 9% p.a. COMPLAINANTS PLEA AGAINST THE APPLICATION OF MULTIPLIER METHOD 10.1. It was emphatically argued by the complainant that going by the peculiar facts and circumstances of the present case viz., Anuradha was about 36 years of age at the time of her death and the complainant husband aged 40 years age, the multiplier method used to determine compensation in cases of death or injury under the provisions of Motor Vehicle Act cannot be applied in the present case and complainant is well within his rights to claim compensation equivalent to the amount which deceased would have contributed for a period of about 34 years i.e. uptil the age of 70 years depending on her income. In this connection reference has been made to the observations made by the Supreme Court in the case of Nizam Institute of Medical Sciences Vs. Prasanth S. Dhanaka& Ors. [ 2009 (6) SCC 1], where the Supreme Court awarded a lumpsum compensation of Rs. One crore plus interest in case of medical negligence but finding no contention of the hospital that multiplier method should be used to determination of compensation. It is also pointed out that even in recent judgment Krishna Rao Vs. Nikhil Super Speciality Hospital & Anr. [ 2010 SCC (5) 513 ], the Court has awarded only a lumpsum compensation when the wife of the complainant in that case died due to medical negligence. It is pointed out that even in Sarla Verma ( Smt.) & Others Vs. Delhi Transport Corporation & Anr. (2009) 6 SCC 121, the Supreme Court observed that the lack of uniformity and consistency in awarding compensation has been a matter of grave concern. As against this, the argument of the counsel for the opposite party is that there cannot be any other scientific method except the multiplier method for determination of compensation even if the death occurs due to negligence of medical professionals. It is strongly controverted that complainant cannot claim a compensation exceeding what would be worked out by the multiplier of 14 going by the age of deceased and the complainant. We find merits in this contention because even in the order remanding the matter to this Commission, the Supreme Court itself has referred to several decisions in which compensation payable to the dependants was determined by the application of multiplier method in cases where death has resulted in motor accidents.
10.2. Yet another reason why we find that multiplier method is the only scientific method / criteria for determination of compensation is for the following reason:
A patient who has been injured by an act of medical negligence has suffered in a way which is recognized by the law-and by the public at large-as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and future cost of medical or nursing care. To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. After all, there is no difference in legal theory between the plaintiff injured through medical negligence and the plaintiff injured in an industrial or motor accident.
Under civil and consumer law compensation paid for medical negligence is neither punishment nor reward. The principle on which damages for medical negligence are assessed is that they are to be regarded as compensation for the injury sustained or death and not as punishment for the wrong inflicted. There is no difference in the principles applied to the assessment of damages in a medical negligence case and other actions for personal injuries, e.g., in motor accidents claims.
In view of the above stated position, we must reject the contention of the complainant that compensation in the present case should be determined on any other principle than the multiplier method.
10.3. The complainant and his wife though of Indian original were citizens of US at the relevant time when Anuradha met her death due to medical negligence. They were working for gain in US and were drawing emoluments as per the standard of that country. Whether this factor would be relevant and should affect the determination of compensation is to be seen? The complainant and his counsel made a vain attempt to fortify the position that complainant is entitled to higher compensation than what would have been granted to a similarly situated Indian citizens. We must reject this submission outrightly because the conditions of other countries may differ from this country and the mere fact that complainant and his wife were US citizens should not make any difference.
This question is not resintegra and was considered by the Supreme Court in the case of United India Insurance Company Ltd. & Ors. Vs. Patricia Jean Mahajan & Ors.
[ 2002 SCC (6) 2810) by observing as under:
Therefore, where there is so much of disparity in the economic conditions and affluence of the two places viz. the place t which the victim belongs and the place where the compensation is to be paid, a golden balance must be struck somewhere to arrive a reasonable and fair mesne. Looking by the Indian standard they may not be much too overcompensated and similarly not very much undercompensated as well, in the background of the country where most of the dependent beneficiaries resides.
COMPUTATION OF COMPENSATION
11.1. In the present complaint in para 72, the complainant has claimed a total compensation of Rs.77,07,45,000/- under different heads, which we would like to reproduce for obvious reasons:
(i) The salary of the patient at the rate of $30,000 per year for four years till she completed her Ph.D. i.e. $ 1,20,000 x Rs.42 = 5,04,0000 less federal tax ( @ 25% p.a.) = total net contribution 1,89,00,000/- contributed to the family.
(ii) The salary of the patient after completing her Ph.D. till the age of 70 years at the rate of $ 1,00,000 per year Rs.12,18,00,000/- ( less federal tax i.e. total anticipated loss to the family 4,75,65,000/-.
(iii) Medical treatment in Calcutta and Mumbai Rs.23,00,000/-
(iv) Travel and Hotel expenses at Bombay Rs.7,00,000/-
(v) Cost of exclusive chartered flight from Calcutta to Mumbai Rs.8,00,000/-
(vi) Compensation for mental agony pains and insufferable suffering of the Complainant for loss of her consortium at his age of 40 + and traumatic break down of family life and deprivation of housewife services Rs.50,00,000/-
(vii) Special damage against opposite party no.1-Rs.10 crores.
(viii) Special damage against opposite party no.2 and party no.3 for Rs. 10 crores
(ix) Complainants loss of salary for six weeks because of unsanctioned leave @ $ 2000/- per week i.e. = $ 12,000 which is equivalent to Rs.4,80,000/-.
Total : 77,07,45,000/-
11.2. It is pertinent to note that in total variance of the above claim in the synopsis of written submissions put forth on record, the complainant has claimed the following amounts in Annexture-1 PECUNIARY DAMAGES:
a. Cost associated with the victim, Anuradha Saha
1.
Loss of prospective / future earnings upto 70 years Rs.29,25,00,000
2. Loss of US Social Security income upto 82 years Rs.1,44,00,000
3. Paid for treatment at AMRI/Breach Rs.12,00,000/-
Candy Hospital
4. Paid for Chattered flight to transfer Rs.9,00,000/-
Anuradha
5. Travel/hotel/other expenses during Rs.7,00,000/-
Anuradhas treatment in Mumbai/ Kolkatta in 1998
6. Paid for court proceedings including Rs.11,57,000/-
Videoconferencing from USA b. Cost associated with Anuradhas husband Dr.Kunal Saha
1. Loss of income for missed work Rs.1,12,50,000/-
2. Travel expenses over the past Rs.70,00,000/-
12 years c. Legal expenses involved:
1. Advocate fees ( senior advocates Rs.1,50,00,000/-
for 12 years)
2. Other legal expenses (also hand-
Rs.15,00,000/-
Writing expert) Total Pecuniary damages Rs.34,56,07,000/-
B) NON-PECUNIARY (SPECIAL) DAMAGES
1. Loss of companionship and life Rs.13,50,00,000/-
Amenities
2. Emotional distress, pain and Rs.13,50,00,000/-
Suffering for husband
3. Pain / suffering endured by the Rs.4,50,00,000/-
Victim during therapy Toal Non-pecuniary damages Rs.31,50,00,000/-
C) PUNITIVE / EXEMPLARY Rs.13,50,00,000/-
DAMAGES D) SPECIAL DAMAGES Rs.18,00,00,000/-
Total Damages Rs.97,56,07,000/-
1. Cross examination by videoconferencing under (retd.) Justice Lokeshwar Prasad.
2. Cross examination of complainant from USA for 3 days plus two practice days for a total of 9 hours
i) Paid in USA at $800/hour $7200
ii) Paid to NIC in Delhi at Rs.15,000/ day Rs.45,000
iii) Honorarium for Justice L.Prasad at Rs.50,000 Rs.10,000/ day
iv) Preparation of transcript of video Rs.33,000 conferencing
v) Advocates, typists and others Rs.50,000 Sub-Total Rs.5,02,000
b) Cross-examination of the respondent doctors / hospital in Kolkata for six days ( 14-16 Jan)
i) Honorarium for Justice L. Prasad Rs.60,000
ii) Honorarium for local commissioner Rs. 5000
iii) Trave/Hotel expenses for Justice Rs.90,000 L.Prasad
iv) Advocates, typists and others Rs.70,000 Sub-total Rs.2,25,000
2. Examination of US Expert via Internet Conferencing under (retd.) Registrar of Delhi HC for 3 days
i) Honorarium for Mr.Chhabra Rs.25,000
ii) Hotel/conference room in India Rs.15000
iii) Advocates, typists and others Rs.50000
iv) Hotel/conference room in USA $800
v) Fee for Prof. Burke Rs.6000 Sub-total Rs.4,30,000 Total Rs.11,57,000 11.3. We may notice at the outset that the compensation claimed by the complainant during the course of his submissions as noted above is greatly in variance with the compensation claimed in para 72 of the complaint. The complainant has unabashedly pegged up the total compensation at Rs.97,56,07,000/- as compared to Rs.77.7 crores in the complaint. According to the complainant, he has prepared the revised quantum of claim because the Supreme Court while remanding the case to this Commission has directed that the pecuniary and non-pecuniary losses and future losses upto the date of trial must be considered for the quantification of compensation. It is stated that complainant has incurred huge amount of expenses in the course of more than 12 year long trial. These expenses include enormous legal expenses as well as expenses for numerous trips of the complainant to India from USA as a result of which the complainant also suffered huge losses, both direct loss of income from his job in USA as well as indirect loss for pain and intense mental agony for tenure denial and termination of his employment at Ohio State University (OSU) which was a direct result of the wrongful death of Anuradha in India. It is also stated that in the original claim of Rs.77 crores, the complainant provided only a broad outline of his claim including the prospective loss of income on account of premature death of Anuradha at the time of filing of the complaint. It is also submitted that he could not consult any economic expert in the USA to scientifically calculate the amount of pecuniary loss of salary or value of the loss for household services due to untimely death of his wife.
In this connection, reference is also made to the observations made by the Supreme Court in the ultimate paragraph of the judgement dated 07.08.2009 where permission was granted to the complainant to examine foreign experts through video conferencing in support of his claim. We have recorded these submissions simply to be rejected because the complainant has not upgraded his claim from Rs.77 crores to Rs.97 crores as is sought to be claimed now by amending his complaint at any stage either before this Commission or the Supreme Court.
The Supreme Court by affording an opportunity to the complainant to examine foreign experts could have never intended to grant liberty to the complainant to peg up his claim under different heads or to award compensation which was in excess of the one claimed in the complaint and going by the evidence and material which has been brought on record. We must, therefore, necessarily confine the consideration of the question of determination of adequate compensation strictly as per the claim made in the complaint and the evidence and material brought on record. It is legally impermissible to consider that part of the evidence which is strictly not in conformity with the pleadings in order to award a higher relief than claimed in the complaint.
ANTICIPATED MONETARY LOSS TO THE COMPLAINANT / FAMILY ON ACCOUNT OF THE LOSS OF CONTRIBUTION OF SALARY OF ANURADHA 12.1. Complainant has claimed a sum of Rs.1,89,00,000/- plus Rs. 4,75,65,000/- = Rs.6,64,65,000/- towards anticipated loss to the family on account of his deprivation of the future earnings of Anuradha under head (i) & (ii).
This assessment is based on the total net contribution which the deceased would have made to the complainant uptill she attained the age of 70 years i.e. for about 34 years as she was 36 years old at the time of her death. In other words compensation is sought to be claimed based on multiplier of 34 in the present case. In support of his contention, complainant seeks support from few foreign judgments. In those cases, foreign courts have awarded a very high compensation amounting to several million dollars for medical mal-practice etc. of medical professionals. We do not wish to burden this order by referring to all those cases because those were rendered on their own facts and circumstances and keeping in view the socio-economic conditions of the said country. In our view, it may not be healthy practice to follow the said decisions while determining the compensation for the acts of medical negligence which have taken place in our country. We must also bear in mind the socio-economic conditions of the defendant / opposite parties while awarding the compensation in the present case.
12.2. It appears that the above sums were claimed by the complainant going by the prevalent law / practice in other countries like US where the complainant and his wife were settled at the relevant time. At the outset, we must hold that this Commission cannot take into account the system of award of compensation in other countries and it must necessarily confine the consideration of this question having regard to the law as has been settled by the Supreme Court through catena of decisions and which is in vogue in our jurisdiction and has stood the test of time. This would necessarily mean that we cannot award compensation to the complainant separately under Head 1 and under Head 2. It must be calculated and awarded together having regard to the relevant factors like the salary of the deceased and her future prospects of increase in her salary / emoluments.
12.3. In order to establish the academic qualification, her income immediately before her death and her future income, the complainant seeks support from his own testimony, testimony of Prof. Burke (the so called US economic expert) as also some documents. We have carefully gone through the said material. In order to establish income which Anuradha would have derived had she not died at the age of 36, complainant has heavily relied upon the testimony of Prof. Burke.
This witness claimed himself to be the economist and expert in the field. Going by her academic qualification and the one she was likely to acquire and the nature of her job as the child counselor and her future prospects, this witness stated that loss of income for Anuradhas pre-mature death would amount of 5 million 125 thousand dollars after deduction of 1/3rd for personal expenses. He further testified that the above assessment of loss of Anuradhas income was a very conservative forecast, otherwise the damage for Anuradhas death could be nine to ten million dollars. It was argued that the loss of income in multi-million dollars as direct loss for the wrongful death of Anuradha may appear as a fabulous amount in context of India but this is otherwise an average and legitimate claim in context of instant case. It is argued that far bigger amounts of compensation are routinely awarded by the Courts of USA in cases relating to medical negligence.
12.4. The above-named witness was subject to lengthy cross examination by a local commissioner through the video conferencing. After going through his testimony and particularly the cross examination, it is manifest that his entire testimony is based on the information supplied to him by Prof. Broughton and Attorney D.Joe Griffith. Since neither Prof. Broughton nor Attoney D.Joe Griffith were examined and rather given up, the testimony of Dr.Burke can be termed as hearsay. Prof. Burke did not have any documents relating to Anuradha except her Curriculum vitae and affidavit of Prof. John Broughton. When he was questioned about the income Anuradha was drawing in the year 1997, he could not state the same as he had no record and had no information in that behalf. On question whether he verified from the complainant what household services were being performed by Anuradha Saha, his reply was in the negative. In his cross examination, Prof. Burke admitted that each qualified child psychologist would earn different amounts and their income cannot be identical. He also admitted that Anuradhas income would have been different depending on the career she would have chosen and was unable to give any idea as to what amount Anuradha would have actually earned.
12.5. In our view, Prof. John Burke could not withstand the test of cross examination.
In any case his estimation of Anuradhas income is not based on actual data of Anuradha and it is more theoretical rather than real. It was dependent on various contingencies viz., Anuradhas successfully completing her P.hd. programme and thereafter getting a settled job as child counselor or alike. In our opinion, the estimation of income of about 5 million dollars given by this witness is imaginary and unrealistic and cannot form the true basis for computing the prospective income of Anuradha.
12.6. Complainant has relied upon certain documents in order to establish the income of the deceased at the relevant time, besides making supporting statement. One of the document is earning statement issued by Catholic Home Bureau, copy at page 100 of the paper book, which gives out particulars about the gross pay, statutory deductions like income tax, federal tax etc. and the net pay of the deceased during January 1998. We would like to extract the said statement below:
Earning Statement Period of Ending :
01/16/1998 Pay Date :
01/15/1998 ANURADHA SAHA 110-29 72ND DRIVE 2ND FLOOR FOREST HILLS NY 11375 CATHOLIC HOME BUREAU 1011 FIRST AVE NEW YORK, N.Y.10022 Social Security Number :
571-63-4207 Taxable Marital Status :
Married Exemptions/Allowance:
Federal : 1 State : 2 Local : 2 Earnings rate hours this period year to date N/A 1060.72 1060.72 2,121,44 Gross Pay $1060.72 2,121,44 Deductions Statutory Federal Income Tax -106.32 212.64 Social Security Tax - 65.77 131.53 Medicare Tax - 15.38 30.76 NY State Income Tax - 33.12 66.24 New York Cit Income Tax- 24.90 49.80 NY SUI / SDI Tax - 1.20 2.40 Net Pay $ 814.03 Your federal taxable wages this period are $ 1060.72 12.7. The above statement would show that Anuradhas gross salary was $1060.72 per week and after deductions of federal tax, social security tax, her net pay was $814.03 viz.
around $3000 per month and $36000 per year.
Complainant under head (i) has himself claimed her salary at $30000 per year for four years till she could complete her Ph.D i.e. $1,20,000.
12.8. Strong contentions were raised about the admissibility of the above statement of salary as the admissible proof of income of the deceased. The contention is based on the submission that author of this document has not been examined to prove it in accordance with law and in any case the complainant himself has failed to exhibit the same as an admissible document during his testimony despite having the opportunity to do so. It is also submitted that this statement does not show if the job of the deceased was of adhoc, temporary or permanent nature. The argument does not appear wholly untenable if we go strictly by the rule of admissibility of the evidence in accordance with the provisions of Indian Evidence Act. However, the procedure provided for deciding the complaints under the Consumer Protection Act, 1986, does not enjoin upon a consumer fora like the present Commission to insist upon the strict proof of the documents in accordance with the Evidence Act. In any case no contrary material has been brought on record to assail the authenticity of this certificate.
12.9. Counsel for the opposite parties have contended that complainant has miserably failed to establish either the education / professional qualification of the deceased or that she was drawing any regular income and if so what was her actual income which she was generating from her work of child counseling, assuming that she was engaged insuch an activity. We must reject these submissions as too technical and as an attempt to thwart even the legitimate claim of the complainant particularly when nothing contrary to the above record as regards her qualification from Columbia university, graduation degree and post graduation degree, income certificate having been brought on record. In any case, the complainant has claimed much less than what is reflected in the said statement and we have no reason to disbelieve the complainant in this behalf. We have, therefore, no hesitation to hold that the income of the deceased was $30,000 per annum before her death. Going by the judgment of Sarla Verma (Supra), we must add 50% to this income for her future prospects. That will bring her average salary income to $45000 per annum.
12.10. Having regard to the age of Anuradha i.e. 36 years and keeping in view the multiplier laid down in the table in the case of Sarla Varma, we must apply the multiplier of 15 in the present case.
After application of the said multiplier, her total income would come to $6,75,000.
12.11. Having come to the conclusion that the total anticipated income of Anuradha would have been around $6,75,000, the next question is as to how much amount the deceased would have spent on herself and how much she would have contributed to her family. Bearing in mind the cost and standard of living in a country like USA and the income of the complainant, in our view the deceased would have spent at least half of the said income for her own upkeep and maintenance. Meaning thereby that she would at best have contributed a sum not exceeding $3,37,500 to her family / complainant. By applying the average exchange rate of Rs.45/- against a U.S. dollar, the net amount would come to Rs.1,51,87,500/-. In our view, this is the amount which the complainant at best can be allowed towards the loss of Anuradhas contribution to the family under head (i) & (ii).
Head No.(iii):
Medical treatment in Calcutta and Mumbai Rs.23,00,000: Complainant has claimed a sum of Rs.23,00,000/- towards the medical treatment of his wife in Calcutta and Mumbai. He has, however, failed to furnish any cogent proof except a receipt in the sum of Rs.2,50,000/- which he paid to the Breach Candy Hospital. Assuming that he must have incurred some more expenditure other than Rs.2,50,000/- on medical treatment of Anuradha, we consider it appropriate to quantify the expenses on account of medical treatment in the sum of Rs.5,00,000/- at both the places viz., Kolkata & Mumbai.
Head No. (iv) : Travel and Hotel expenses at Bombay Rs.7,00,000/- : Complainant has claimed a sum of Rs.7,00,000/- towards the expenses incurred by him in connection with his travel and stay in Mumbai during the period Anuradha remained admitted in Breach Candy Hospital, Mumbai. Again the complainant has not furnished any proof about incurring such expenses but taking into account the duration of 11 days during which Anuradha remained admitted in Breach Candy Hospital, Mumbai, we are willing to award a sum of Rs.1,00,000/- to the complainant under this head.
Head No.(v) : Cost of exclusive chartered flight from Calcutta to Mumbai Rs.8,00,000: Complainant has claimed Rs.8,00,000/- for the cost of exclusive chartered flight in order to shift deceased Anuradha to Breach Candy Hospital, Mumbai. Even for this expenditure, no receipts or tickets have been produced but going by the admitted position that an air ambulance was hired by the complainant for shifting Anuradha from Calcutta to Mumbai and the common knowledge about the cost of air ambulance, we are inclined to award a sum of Rs.5,00,000/- in this behalf.
Head no.(vi) Compensation for mental agony pains and insufferable suffering of the complainant for loss of her consortium at his age of 40+ and traumatic break down of family life and deprivation of housewife services Rs.50 crore:
We find this figure as astronomical having already awarded a sum of Rs.1,51,87,500/-. We are of the opinion that claim of Rs.50 crore under this head is highly exaggerated. In any case complainant has not given the break-up of this high claim.
In our view, going by the Supreme Court decision in the case of Nizam Institute, where a highly qualified and paid engineer had been rendered paralytic from below the waist portion and going by the consistent pain and suffering which the complainant in that case would have undergone, the Supreme Court has awarded a compensation of Rs.10,00,000/- in that case. We, therefore, feel that compensation on account of mental agony, pain and suffering as also the deprivation of housewife services should not exceed to a sum of Rs.10,00,000/-. We hold accordingly.
Head No.(vii) Special damages against opposite party no.1-Rs.10 crores: Complainant has claimed a sum of Rs.10 crores as special damages from opposite party no.1-Dr.Sukumar Mukherjee in addition to other claims. The basis for such a claim is disclosed in para 75 of the complaint where the complainant has mentioned that opposite party no.1 is particularly liable to pay extra ordinary damage to the complainant for administration of cortico steroid even from 11th May, 1998 when the patient had full blown TEN and for not permitting the patient to fly back to America where her life could have been saved. The complainant has himself failed to bring any proof on record to show that opposite party no.1 had advised against shifting of Anuradha to USA or any such advise was sought from him. The Supreme Court has already held Dr.Sukumar Mukherjee guilty of medical negligence largely for administering Depomedrol and in excessive quantity, therefore, we see no justification for award of any special damage much less Rs.10 crores as claimed by the complainant from Dr.Sukumar Mukherjee. This claim is rejected.
Head no. (viii) Special damages against opposite party no.2 and opposite party no.3 - Rs. 10 crores Complainant has again claimed a sum of Rs.10 crores from original opposite party no.2 & 3, namely, Dr.B.Haldar and Dr.Abani Roy Chowdhury on the ground that they are also liable to pay such special / extraordinary damage or damages for administration of conticosteroids even after the diagnosis of full blown TEN.
We must reject this claim of the complainant on the ground as stated in the preceeding paragraph. In any case, no aggravating circumstances have been brought on record justifying the award of any such damages against these doctors. We, therefore, reject both these claims.
Head no.(ix) Complainants loss of salary for six weeks because of unsanctioned leave @$2000/- per week i.e.= $12,000 which is equivalent to Rs.4,80,000/- :
We have already awarded a sum of Rs.1,51,87,500/- to the complainant under head nos. (i) & (ii), we do not consider it appropriate to award any further damages under this head.
EFFECT OF CONTRIBUTORY NEGLIGENCE
13.1. The total amount of compensation under different heads comes to Rs.1,72,87,500/- (Rupees One Crore Seventy Two Lakh Eighty Seven Thousand Five Hundred only). Now the question is as to whether any amount should be deducted from this amount on account of the contributory negligence of the complainant arising out of his conduct i.e. interference in the treatment of Anuradha during her hospitalization in AMRI hospital. In para no. 123, the Supreme Court has held that said interference of the complainant may be a relevant and may have some role to play for determining the amount of compensation. Therefore, having held that complainant has interfered in treatment of Anuradha, we are inclined to deduct a sum equivalent to 10% from the above payable amount, which will bring the total net payable amount at Rs.1,55,58,750/- (rounded of to Rs.1,55,60,000/-) [ Rupees One Crore Fifty Five Lakh Sixty Thousand only] APPORTIONMENT OF LIABILITY AMONGST THE OPPOSITE PARTIES TO PAY THE AWARDED COMPENSATION 14.1. The most intriguing task for us is to apportion the liability to pay the awarded amount of compensation amongst the opposite parties. No straight jacket formula exists or perhaps can be laid down in a case where so many doctors and hospitals are found negligent in the treatment of patient. The Supreme Court has not indicated the criteria for apportionment of the compensation amongst the opposite parties but going by the findings of the Supreme Court in regard to the nature and extent of negligence / deficiency in treatment on the part of the opposite parties and Dr. Abani Roy Chowdhury as enumerated in para 158 to 166 of the judgment, we must apply a formula which appears just to us. Supreme Court has primarily found Dr. Sukumar Mukherjee and AMRI hospital guilty of negligence and deficient in service on several counts. Therefore, going by the said findings and observations of the Supreme Court, we consider it appropriate to apportion the liability of Dr.Sukumar Mukherjee-opposite party no.1 and AMRI hospital-opposite party no.3 in equal portion i.e., each should pay 25% i.e. Rs.38,90,000/- (Rupees Thirty Eight Lakh Ninety Thousand only) of the awarded amount of Rs.1,55,60,000/-. Remaining half of the awarded compensation should be divided amongst Dr.B.Haldar-opposite party no.2 and Dr.Balram Prasad-opposite party no.4 and Dr. Abani Roy Chowdhury (heirs of whom have been given up by the complainant by forgoing his right to claim compensation from them). That would mean that Dr.B.Haldar and Dr. Balram Prasad will be required to pay a sum of Rs. 25,93,333/- (rounded of to Rs.25,93,000/-) each.
COST OF LITIGATION 15.1. In the Annexure submitted alongwith the synopsis of submissions, the complainant has claimed a sum of Rs. 1,12,50,000/- towards the loss of income for missed works, Rs. 70,00,000/- towards traveling expenses, a sum of Rs. 1,50,00,000/- towards advocate fees paid to senior advocates for over 12 years and a sum of Rs. 15,00,000/- towards other legal expenses.
These claims appear to be highly exaggerated. In any case, the complainant has not furnished any cogent proof of having actually incurred the above expenditure. The Supreme Court had awarded a cost of Rs. 6,00,000/- while deciding the criminal and civil appeals. In our opinion having regard to peculiar facts and circumstances of the present case and as a special case, the complainant is at best entitled to cost of Rs. 5,00,000/- (Rupees five lakh only), lest it becomes too onerous for the opposite parties to pay the same. Out of the said cost of litigation of Rs.5,00,000/-, Dr.Sukumar Mukherjee and AMRI hospital will pay Rs. 1,50,000/-
(Rupees One Lakh Fifty Thousand only) each and Dr. B.Haldar and Dr.Balram Prasad will pay Rs.1,00,000/- (Rupees One Lakh) each.
SUMMARY In view of the foregoing discussion, we conclude as under:
16.1. The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
16.2. The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
16.3. The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
16.4. Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
16.5. The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
16.6. There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
16.7. On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- ( rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr.Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
16.8. In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.
16.9. The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:
(i). Dr.Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/-
towards compensation and Rs.1,50,000/- as cost of litigation] .(ii) Dr. B.Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation]
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
..Sd/-..
( R.C. JAIN, J ) PRESIDING MEMBER Sd/-
( S.K. NAIK ) MEMBER Am