This is a case where a well established doctor questioned the negligence of other doctors and two well-known hospitals with courage that lasted him 15 years despite threats.

This was perhaps an average story of a patient but ended in an extra-ordinary manner. In March 1998, child psychologist Anuradha, a resident of Ohio, United Sates, was visiting Kolkata with her husband, when the tragedy was set in motion. A month into the holiday, Anuradha noticed some rashes on her skin and consulted reputed physician Dr Sukumar Mukherjee, who advised her rest.

Instead of abating, the rashes spread within two months, leading to the doctor prescribing her two doses of Depo-Medrol injection every day. As there was no improvement, Anuradha was admitted to Advanced Medicare Research Institute (AMRI) hospital. Soon, her skin started to peel off, leading to the diagnosis that she was suffering from toxic epidermal necrolysis (TEN). Dr. Mukherjee continued to treat her at the AMRI. TEN, also called Lyell’s syndrome, is considered to be a life-threatening disease generally caused by a reaction to drugs. It causes the top layer of skin to detach from the lower layer all over the body. It is considered as more severe form of the Stevens-Johnson syndrome.

As her condition deteriorated, Anuradha was airlifted to the Breach Candy Hospital in Mumbai where she died on May 28, 1998.

The fight for justice began soon after. Anuradha’s husband, AIDS researcher Dr Kunal Saha, filed a criminal case and claimed compensation of more than Rs 78 crore accusing the doctors and the two hospitals of causing “wrongful death” of Anuradha. He pledged to donate the entire amount to People for Better Treatment (PBT), a voluntary group set up by him in Kolkata to fight against medical negligence and corruption in the medical field. In the criminal case relating to Anuradha’s death, the high court and the apex court had acquitted all the accused — Dr Sukumar Mukherjee, Dr Baidyanath Halder and the late Abani Roychowdhury — as there was no criminal intention to kill the patient.

But the National Consumer Disputes Redressal Commission dismissed the case in 2006 upon finding that the doctors and the AMRI were not negligent. Dr. Kunal Saha appealed to Supreme Court and three doctors also filed cross appeals. Dr. Saha approached the Supreme Court which in 2009 found doctors guilty of negligence and sent the case back to NCDRC only for determining the quantum of compensation.

The NCDRC had stipulated that AMRI and Dr Mukherjee would pay Rs 40.4 lakh to Saha, while two other doctors, Halder and Prasad, would pay Rs 26.93 lakh each. While awarding Rs 1,72,87,500 as compensation to Dr. Saha , the NCDRC had held Dr Saha responsible for contributing to the negligence committed by the three Kolkata doctors and the hospital and had ordered 10 per cent deduction in the amount of compensation, thus making it Rs 1.55 crore. The case had gone to the Supreme Court against this smaller compensation to Dr. Saha.

Recently, the Supreme Court, with Justice C K Prasad and Justice V Gopala Gowdaon on the Bench, directed the AMRI, where Anuradha had received a steroid overdose while being treated by the three doctors, to pay Rs 5.96 crore along with 6% interest to be calculated from 1999 to Dr Saha. This makes the amount nearly Rs 11 crore, which the court asked be paid within eight weeks. Along the way, the Bengal Medical Council rebuffed Dr. Saha but he continued to argue the case himself several times. During the fifteen-year struggle, one defendant doctor Abani Roychowdhury died in 2011 while another was ill and bed-ridden.

While the compensation sounds impressive, this is largely because the victim was an NRI. It was explained that because the court calculated the victim’s loss of income in dollars and converted it to rupees, holding the value of Indian currency as Rs. 55, if the victim was an Indian resident, the compensation would not have been this high. Another major factor behind the compensation was the fact that the claimant spent nearly Rs 8 crore to continue the fight. He had to stay back in India for several months at the time when his long absences threatened his job in the US. He has to also to foreclose the home loan and had filed for bankruptcy meanwhile.

Interestingly, Dr. Mukherjee who was accused of negligence was happy because he would actually get back some money. Earlier, the NCDRC had imposed Rs 40.4 lakh fine on him. But the Supreme Court asked him to pay Rs 10 lakh personally. This means he will get back three-fourth amount while the other two doctors would also get back a huge part of money they have already paid.

The response of doctors to the patient who suffered was mostly harsh and remained largely unrepentant. The Supreme Court denouncing this kind of attitude and expressed its shock that a doctor as “renowned and revered” as Dr. Sukumar Mukherjee could have shown such disrespect to his profession and attempted to pass the buck to other doctors. Mr. George, who represented Dr Kunal Saha, reasoned how mutliplier method could not be used for medical negligence cases and other method of Restitutio ad integrum would be proper. AMRI Hospitals has sought the court to adopt the “multiplier method” which is generally used in motor accident cases. This formula is available in Schedule 2 of the Motor Vehicles Act, based on the variation of 5 to 18 in the multiplier on the basis of the victim’s age, earning capacity, dependents, etc. For instance, if an old man died, the multiplier will be smaller on the basis of either five or six but the same would increase as when the age of victim decreases the multiplier increases. The multiplier might go up to 18. In civil cases on medical negligence, a different test called ‘Restitutio ad integrum’ has been adopted. Anuradha had died at 36 years and the court decided that, as a professional child psychologist, she could have been earning till the age of 66. The court rejected the videoconference submission of an US economist John F. Burke, who said that according to American standards, she would have been earning till 70.

Kunal Saha’s lawyer had challenged the multiplier of 15 adopted by the NCDRC, arguing the Motor Vehicles Act could not be invoked in medical negligence cases. The apex court agreed. Burke had calculated the loss of income to be $5.125 million, based on a far higher estimate of annual loss of income compared with the apex court’s calculations who multiplied it by 34. The apex court said the suffered patient had to be put back to the original position before the negligent treatment.

The Supreme Court referred the doctrine of Restitutio ad integrum, a Latin phrase that means “restoration to original condition”. As per the verdict, this rule has to be followed in future calculation of damages in civil medical negligence cases. The doctrine provides for damages for expenses such as those on medical bills and property repairs, as well as the loss of future earnings, calculated by taking into account the victim’s possible future career and promotion prospects.

With multiplier method, the future loss for Dr. Saha, even if multiplier was fixed at highest at 18, would have been calculated as Rs 3.43 crore rather than Rs. 5.76 crore which was awarded by the apex court. Adding the various other compensations, the total would have been Rs 3.79 crore instead of Rs 6.08 crore, and addition of interest would have raised it to Rs 7.2 crore rather than Rs 11.55 crore.

As the criminal case ended in acquittal, there is no possibility of imposing fines. However, the apex court wanted to send across the deterrent note to the doctors. Referring to increasing medical negligence cases, the court hoped that their verdict would be a disincentive and a reminder to those doctors and hospitals who tend to take things lightly. Justice Gopala Gowda suggested the central and the state governments to consider enacting laws for effective functioning of private hospitals and nursing homes.

The right to health is a fundamental right guaranteed under the Constitution’s Article 21, the court said, adding doctors and hospitals are to be dealt with strictly if found “negligent with the patients who come to them pawning all their money with the hope to live a better life with dignity”.“The patients, irrespective of their social, cultural and economic background, are entitled to be treated with dignity which not only forms their fundamental right but also their human right,” Justice Gowda said. It also expressed hope that medical professionals and institutions update themselves about any new developments and rare diseases so as to avoid tragedies such as in this case where a life could have been saved with a little more awareness and wisdom on the part of doctors and hospitals.

While judging the amount, Dr Saha pointed out that the status of the treating doctors as also the hospital should be taken into consideration to compute the compensation amount. He said that enhanced compensation should be paid for medical negligence cases against more reputed doctors and hospitals. As per the judgment, “appropriate level of lawyers’ fees and legal expenses must be reimbursed by the guilty doctors/hospital”. The so-called compensation will not really compensate the loss caused by the medical negligence. The fight goes on beyond decades, even as actual payments to lawyers and other related costs are not taken into account at all. In western countries, the law of civil wrongs (Law of Torts) would compensate actual losses, it is not possible in India as no costs are properly accounted or documented. This delay and non-inclusion of actual costs dissuade Indian citizens from pursuing cases for compensation of losses through tort litigation.

There is another major difficulty, i.e. impossibility of proving the medical negligence in court and fighting various other factors which are not in anybody’s control that prolong the litigation. The final question is: Can any amount of compensation bring back Anuradha for her husband? Will justice ever happen within reasonable time without delay?