Award of a few crores as compensation for medical negligence in India is unheard of but times have changed. The disease suffered by the wife of the complainant, a medical Doctor with Ph.D; was also rare – TEN (Toxic Epidermal Necrolyesis) which affects one or 1.3 person out of 10 lakh is also rare. A lawyer’s notice to 26 persons and a criminal complaint against three medical professors which was fought up to the Supreme Court of India – is very rare. Another complaint to cancel the names of three medical professionals from the Professional Register of West Bengal Medical Council and consequently, a final award of Rs 1,55,60,000, a whopping amount in the legal history of India, which was very conservative hitherto in awarding pecuniary and non-pecuniary damages against the opposite parties – makes this a rarest of rare cases!
Facts of the case
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| D Samuel Abraham |
Anuradha Saha (36), wife of Dr Kunal Saha (complainant) became the unfortunate victim of TEN when she along with the complainant was in India for a holiday during April – May 1998. The complainant and Anuradha are medical doctors of Indian origin in the US. The complainant having a doctorate in medicine was doing research in HIV/ AIDS whereas Anuradha was a child psychologist. Both arrived in Kolkata on April 1, 1998, where Dr Saha found that Anuradha had developed a low grade temperature, sore throat, with some palpable neck glands on April 3, 1998. She was treated by him, as he is a trained medical man. On April 17, 1998, Anuradha developed high grade fever with upper respiratory tract infection. On April 25, 1998, her fever increased with skin rash and enlarged neck glands (lymph nodes).
On April 26, 1998, the complainant contacted Dr Sukumar Mukherjee (Opposite Party No:1) and requested him to examine the patient at his residence. After examination, Dr Mukherjee suggested a host of pathological tests including blood tests.
- Bio-chemistry tests including liver and kidney functions, immunology i.e., determination of anti-bodies and other relevant examinations; and
- Virology i.e., determining the presence of viruses for ascertaining the causes of the fever.
No other treatment was prescribed on the said date. Dr Mukherjee informed Dr Saha that he would be leaving India on May 12,1998 for the US where he was to participate in an international medical conference. In between Dr Saha contacted Dr Mukherjee on May 7,1998 as her condition deteriorated. He advised him to bring Anuradha to his chambers. Anuradha walked into the clinic late in the evening on May 7,1998
When Dr Mukherjee examined Anuradha, the complainant informed him that on May 6, 1998, they had Chinese food after which the skin rashes worsened. After examining her, Dr Mukherjee’s diagnosis was that she was suffering from angio-neurotic oedema with allergic vasculitis – the challenge to Chinese food positive.
He advised administration of depomedrol injection 80mg IM twice a day for a period of three days. This was based on blood reports with eosinepohilia and mild bucocycosin. Undisputedly between May 7-11, 1998, the complainant consulted two dermatologists, Dr AG Ghoshal and Dr S Ghosh. Both of them diagnosed Anuradha a case of vasculitis. On May 11, 1998, the patient was admitted in the Advanced Medical Research Institute (AMRI), Kolkata.
In the hospital, she was under the care of Dr Balram Prasad, a consultant physician (a class mate of the complainant).
On May 11, 1988, Dr Mukherjee examined the patient on a reference made by Dr Prasad.
He again prescribed Wysolone:
- 50 mg once daily for one week
- 40 mg daily for 1 week
- 30mg daily for 1 week
Depomedrol:
- 80 mg IM twice daily for two days then 40 mg IM twice for two days
On the evening of May 11, 1998, Dr AK Ghoshal – a consultant dermatologist examined Anuradha and diagnosed that the patient was affected by TEN. It is to be recorded that Dr Ghoshal also recommended to continue the same medicine as prescribed by Dr Mukherjee.
On May 12, 1998, Dr Baidyanath Halder – a consultant dermatologists examined the patient and opined that the patient was suffering from Stevens and Johnson Syndrome and recommended confirmation of treatment recommended by Dr Mukherjee.
On May 17, 1998, the complainant removed the patient from AMRI hospital to Breach Candy Hospital in Mumbai. On examination Dr Farokh E Udwadia recorded that “…there is no skin left. In any case, first basic management is the same. I do feel that the dose of steroids used in Kolkata is either excessive 120 mg daily for a number of days, prescribed by 80 mg injections. I would not give more than 40 mg per day -1mg/kg body weight.” Anuradha died on May 28, 1998.
Legal proceedings
- A short recital of legal proceedings against the doctors may explain the situations easily.
- On September 30,1998, the complainant issued legal notice to 26 persons which included doctors, hospital management in Kolkata and Breach Candy Hospital, Mumbai.
- On November 19, 1998 a criminal complaint was filed against Dr Sukumar Mukherjee, Dr Baidyanath Halder and Dr Abani Roy U/S 304 A IPC
- On 09.03.1998 a complaint of deficiency of service against 19 doctors, claiming Rs 77,76,73,500 as compensation before National Consumer Disputes Redressal Commission (NCDRC), New Delhi was filed
- On July 17, 1999, a complaint was filed against Dr Sukumar Mukherjee and three others before the West Bengal Medical Council to cancel the registration for medical practice
Consequence
The criminal complaint was dismissed by the Chief Judicial Magistrate, Alipore; subsequently an appeal preferred before the High Court of Calcutta which was also dismissed. A Criminal appeal was filed before the Supreme Court of India.
The complaint for awarding a compensation of Rs 77 crore was dismissed by NCDR commission New Delhi. But a civil appeal was filed before the Supreme Court.
The Supreme Court considered both the appeals. It dismissed the criminal appeal in favour of the doctors against the complainant. But it has held that there is a degree of negligence – by prescribing excess dosage of Depomedrol and hence the commission should calculate pecuniary and non-pecuniary damage and ordered to be paid to the complainant by the opposite parties.
Accordingly, the commission ordered the following quantum of compensation against the opposite parties.
- Dr Sukumar Mukherjee – opposite party No 1: Rs 40,00,000
- Dr Baidyanath Halder opposite party No 2: Rs 26,93,000
- AMRI hospital – opposite party No 3: Rs 40,40,000.
- Dr Balram Prasad opposite party No 4: Rs 26,93,000.
- The opposite parties were directed to pay the aforesaid amounts to the complainant within eight weeks from the date of order, failing which the amount shall carry an interest of 12 per cent per annum with effect from first date of default.
The emerging legal conclusions from this case
- Gone are the days, that the Indian courts are conservative in awarding compensation.
- Doctors should be very careful in prescribing the quantum of medicine. The deposition of Dr Farokh E Udwadia and the manufacturers of Drug Depomedrol went against the opposite parties to enable the judiciary to hold that the quantum is excessive. Dr George Goris, Managing Director Medical and Drug Information of Pharmacia expressed that ‘DEPO’ dosage of more than the approved indication, that too 80 mg, twice daily, was not correct.
- The contributory negligence of the complainant, frequent intervention in the administration of drugs; not allowing the doctors to examine the patient; not allowing to take biopsy from the patient; administration of a drug Qurisalone antibiotic by the brother – in – law of the complainant, consumption of sea food by the patient when she had skin rashes; being a doctor she should have known that it would be a challenge to allergic vasculitis.
- The shifting of the patient from Kolkata to Mumbai thereby completely exposed for infection.
Therefore, the compensation is limited to this quantum or otherwise, the same would be more, amounting to few crores.
Though the matter has not attained the finality – open to challenge by both the parties, there is a lot to be studied, understood and followed by the treating specialists and hospitals for future course of action such as: while maintaining the medical records to note the contributory negligence; to prescribe the medicine by taking independent decisions and not carried away by the prescriptions already followed; to offer more degree of professional skill while treating a particular patient. Deep knowledge about the maximum dosage as per drug – literature coupled with the physical stature and condition of the patient at that particular time.
In summary, this case highlights the fact that doctors should use drugs that they are familiar with, in relation to the dose and indications. The dose they are prescribing should be as per the recommendation, of the US FDA or British National Formulary (BNF) or Indian drug controller’s recommendations.
As and where the doctor feels he/ she needs to give drug doses beyond the approved/ indicated dose, they should document in the case sheet the reasons for the same and it is preferable to get the consent from the patient.
Gone are the days where a doctor could claim that a particular drug “in his opinion” is good. Doctors should practice “evidence-based medicine”. Their prescriptions should be supported by evidence that they are useful and not harmful.
*Source: Dr Kunal Saha Vs Dr Sukumar Mukherjee and others {2012 (1) C PR 154 (NC)}
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