Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221
- ByPravleen Kaur --
- 06 Jan 2025 --
- 0 Comments
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221
- V. Kishan Rao vs Nikhil Super Speciality Hospital…, [CIVIL APPEAL NO.2641_ OF 2010]
- Satyavir Singh vs State Of U.P., [CRIMINAL APPEAL No. 295 OF 2010]
Highest Compensation for Medical Negligence
A Matter of Great Concern for Medical Fraternity
Introduction:
A petitioner claimed a total compensation of Rs.770745000/- (Seventy Seven Crores Seven
Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 before National Consumer Dispute Redressal Commission (NCDRC) against Breach Candy Hospital, Mumbai, its doctors and functionaries claiming a further compensation of Rs.25.30 crore (though the said complaint was later on withdrawn), thereby made claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora in India established under the provisions of Consumer Protection Act, 1986. These facts made Dr.Kunal Saha vs. Dr.Sukumar Mukherjee & Others, O. P. No. 240 of 1999, NCDRC, New Delhi, date of judgment: 21stOctober 2011, case an extra ordinary in the field of medical negligence in Indian Context.
Brief facts:
Complainant a doctor by profession (husband of deceased victim of medical negligence 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, 1998 to the date of her death (May 1998) alleging negligence and deficiency in service on their part. He filed the complaint on 09.03.1999 before
NCDRC, New Delhi.
This case was filed against few doctors and one hospital at Culcutta, namely, Dr.Sukumar
Mukherjee, Dr.B.Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited (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. 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.
Role of Supreme Court:
The Apex Court by order dated 07.08.2009 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 of NCDRC dated 01.6.2006 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.”
Principle of compensation:
“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.” [Livingstone v. Rawyards Coal Co]
Effect of contributory negligence:
In this connection, the observations made by the Supreme Court in Para 123, which read 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 J Indian Acad Forensic Med. October- December 2011, Vol. 33, No. 4 ISSN 0971-0973
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.”
On the other hand it was submitted in defense 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. [Para 8.7]
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. [Para 8.8]
Doctrine of Apportionment of Liability:
The question before NCDRC was ―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, NCDRC was
inclined to deduct a sum equivalent to 10% from the above payable amount. [Para 13.1]
The most intriguing task before NCDRC was, 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, ncdrc considered it appropriate to apportion the liability of Dr.Sukumar Mukherjee and AMRI hospital in equal portion i.e., each should pay 25% of the awarded amount. Remaining half of the awarded compensation should be divided amongst Dr.B.Haldar and Dr.Balram Prasad and Dr. Abani Roy Chowdhury (heirs of whom have been given up by the complainant by forgoing his right to claim compensation from them). [50% divided among three parties] [Para 14.1]
Cost of Litigation:
In the Annexure submitted along with the synopsis of submissions, the complainant has claimed
a sum of Rs.11250000/- towards the loss of income for missed works, Rs. 7000000/- towards traveling expenses, a sum of Rs. 15000000/- towards advocate fees paid to senior advocates for over 12 years and a sum of Rs. 1500000/- 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 already awarded a cost of Rs. 600000/ -while deciding the criminal and civil appeals.
In NCDRC 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. 500000/- (Rupees five lakh only), lest it becomes too onerous for the opposite parties to pay the same. [Para 15.1]
In view of the foregoing discussion, NCDRC concluded as:
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. [Para 16.1]
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. [Para 16.2] 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.
J Indian Acad Forensic Med. October- December 2011, Vol. 33, No. 4 ISSN 0971-0973
288
Still difficult was the task of apportionment of the liability to pay the awarded amount by the different opposite parties. [16.3]
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 lump sum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity. [Para 16.4] 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 pars 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. [Para 16.5]
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. [Para 16.6]
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, NCDRC held that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.17287500/- 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.15558750/-(rounded of toRs.15560000/). From this amount, we must further deduct a sum of
Rs.2593000/- which was payable by Dr.Abani Roy Chowdhury (deceased) or his Legal
Representative as the complainant has forgone the claim against them. [Para 16.7]
In view of the peculiar facts and circumstances of the case and as a special case, NCDRC have awarded a sum of Rs. 500000/- as cost of litigation in the present proceedings. [Para 16.8]
The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:
i.Dr.Sukumar Mukherjee shall pay a sum of Rs.4040000/- (Rupees Forty Lakh Forty Thousand
only) i.e. [Rs.3890000/- towards compensation and Rs.150000/- as cost of litigation]
ii.Dr. B.Haldar (Baidyanth Halder) shall pay a sum of Rs.2693000/- (Rupees Twenty Six Lakh
Ninety Three Thousand only) i.e. [Rs.2593000/- towards compensation and Rs.100000/-
as cost of litigation]
iii.AMRI hospital shall pay a sum of Rs.4040000/- (Rupees Forty Lakh Forty Thousand only )
i.e. [Rs.3890000/- towards compensation and Rs.150000/- as cost of litigation]
iv.Dr. Balram Prasad shall pay a sum of Rs.2693000/- (Rupees Twenty Six Lakh Ninety Three
Thousand only) i.e. [Rs.2593000/- towards compensation and Rs.100000/- as cost of
litigation] The opposite parties were directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order (21.10.2011), failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default. [Para 16.9]
There is an urgent need for medical fraternity to introspect on the issue of medical negligence with great concern in changed global socio-economic scenario and rising of medical tourism as potential country for providing medical care to the world community.
RELATED Blog
0 comments