Home » Case Note » Principles of compensation in Medical Negligence Claims laid down in Dr Kunal Saha v. AMRI

Principles of compensation in Medical Negligence Claims laid down in Dr Kunal Saha v. AMRI

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Rukmini Das

The National Consumer Disputes Redressal Commission (“NCDRC”) on October 21, 2011 in Dr. Kunal Saha v. AMRI and Ors, ordered that a compensation amount of Rs 1.73 crore (approx. US $ 350,000), which is being described as one of the highest compensation amounts awarded in a case of medical negligence.

The Complainant, Dr. Kunal Saha, a resident of Ohio, USA, filed a consumer complaint against Advanced Medicare and Research Institute Limited (“AMRI“), a medical institute in Kolkata and three of its doctors. In May, 1998, while on holiday in India, Dr Saha’s wife, Mrs. Anuradha Saha who was a Child Psychologist pursuing a Ph.D. in a university in U.S.A, contracted Toxic Epidermal Necrolysis (“TEN“), a very rare disease. She was treated at AMRI and for 5 days before being transported to Breach Candy Hospital in Mumbai by air ambulance, where she was treated for a further 11 days until her death.

Dr. Saha considered all the doctors treating his wife as negligent, and filed compensation claims before the NCDRC, totaling Rs. 102 crore. The first complaint against AMRI and 3 of its doctors was rejected in 2006 by a 3-member bench of the NCDRC, primarily on the ground that doctors do not undertake to positively cure any patient and that from the record it was difficult to prove deficiency of service.

On appeal before the Supreme Court, clubbed with criminal appeals from the Calcutta High Court (for causing death by negligence), the criminal appeals were dismissed while the civil appeal was remanded to the NCDRC for determining adequate compensation. The decision centered around the use of steroids in the treatment of the patient. The Court concluded that the doctors at AMRI had administered excessive dosage of steroids, against medical protocol. There were different viewpoints in relation to use of steroids in the treatment of TEN. If the Court were to accept the viewpoint of those who oppose the use of steroids in treatment then the doctors were guilty of gross negligence. Even those medical practitioners who generally support administering of steroids did not support administration of steroids in cases of this nature. Even on deterioration of Mrs. Saha’s condition, none of the doctors reconsidered the dosage of steroids being administered every day.

The other important consideration in this case was the standard of medical care that a practitioner must provide. The Court held that:

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.

In Savita Garg v. National Heart Institute, 2004(2) CPC 675 S.C the Supreme Court had opined:

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.”

AMRI made a representation that it was one of the best hospitals in Calcutta and provided very good medical care to its patients. However, the Court found several deficiencies in service from the doctors as well as the hospital. The records suggested that regular daily medical check-ups were not conducted. On observing rashes on Mrs. Saha’s skin, the doctor did not refer her to a dermatologist nor did he consult one. The Court noted several other such instances of non-adherence to established procedure on the part of the respondent doctors and on the part of hospital.

Based on these findings, the Court concluded that there was negligence on the part of the hospital and doctors and remitted the same back to the NCDRC.

A plea for including Breach Candy Hospital and its doctors as necessary parties was dismissed by the NCDRC as misconceived in 2010.

Criteria for determining compensation:

The Supreme Court, in its judgement, had summarised the past judicial position on compensation and directed the NCDRC to consider the following principles while computing the amount of compensation:

  • A person entitled to damages should, as nearly as possible, receive that sum of money which would put him in the same position as he would have been if he had not sustained the wrong.
  • Loss of a wife may always be truly compensated by way of mandatory compensation. For compensating a husband for loss of his wife, courts consider the loss of income to the family. It may be based on what she had been earning.
  • Pecuniary damages and special damages need to be separately assessed. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money. Pecuniary damages may include expenses incurred by the complainant such as: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. Non-pecuniary (special) damages 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 NCDRC, in its decision, extracted the following legal principles:

  • The multiplier method is a logically sound method for determining compensation. The NCDRC relied on General Manager, Kerela State Road Transport Corporation, Trivandrum  v. Mrs. Susamma Thomas & Ors. 1994 ACJ 1,:

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.”

  • In relation to housewives, reliance was placed on the following extract from Lata Wadhwa & Ors. v. State of  Bihar & Ors., (2001) 8 SCC 197:

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, […] 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/- […].

  • In Smt. Sarla Verma and Ors. v. DTC and Anr., (2009) 6 SCC 121, the Court clearly laid down:

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.”

  • The fact of residence in USA would not play a strong role in increasing the compensation, following the decision in United India Insurance Company Ltd. & Ors. v. Patricia Jean Mahajan & Ors. (2002 SCC (6) 2810).

In light of all the above enunciated principles on calculating compensation, the NCDRC held that 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 an Indian forum could not be at par with compensation ordinarily granted by foreign courts in such cases. Socio-economic conditions prevalent in India 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 permitted undue enrichment.

On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, the NCDRC held that overall compensation on account of pecuniary and non pecuniary damages amounted to Rs.1,72,87,500/- in the present case, out of which 10% was deducted on account of the contributory negligence or interference of the complainant in the treatment of Mrs. Saha, bringing the net payable amount of compensation to Rs.1,55,58,750/- (rounded off to Rs.1,55,60,000/-). From this amount, a sum of Rs.25,93,000/- which was payable by Dr. Roy Chowdhury (deceased) or his Legal Representative was further deducted as the complainant has forgone the claim against them.

In view of the peculiar facts and circumstances of the case, a sum of Rs. 5,00,000/- was awarded as cost of litigation in the present proceedings.

Thus, a total of about 1.34 crore was ordered as compensation.



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