Costly mistakes

The court is taking a new and punishing view of medical negligence.

The Supreme Court has awarded the exemplary compensation of Rs 5.96 crore to Kunal Saha, who lost his wife to medical negligence at the Kolkata-based AMRI hospital in 1998. The litigant has relentlessly campaigned to draw attention to his own case and the larger cause of careless health practitioners, and has previously been given Rs 1.73 crore by the National Consumer Dispute Redressal Commission. This is a precedent-setting case, and a recognition of the way life can often be devalued in an unaccountable healthcare system.

Medical malpractice is defined as an instance where the "standard of care" of a patient slips below what a prudent provider would give, resulting in injury or death. But legal consequences vary sharply across jurisdictions on one extreme is the US, where a payout is estimated to be made every 43 minutes. A recent study in the New England Journal of Medicine found that 75 per cent of physicians in "low-risk" specialties and virtually all physicians in "high-risk" specialties were likely to face a malpractice claim in their careers. Negligence is a serious charge, one that implies lack of reasonable skill and care, and distinct from ordinary error or a mistaken diagnosis, which few practitioners are immune to. In India, partly because of the information and power asymmetries between patient, doctor and hospital, as well as the difficulty of getting legal redress (tort law is relatively underdeveloped), heedless error is rarely punished. Doctors and hospitals rarely face any heat from the regulators, with the Medical Council of India and Indian Medical Association reluctant to discipline their colleagues.

While the Consumer Protection Act of 1986 has let more such cases find resolution, the courts have been reluctant to expose doctors to potential harassment. In the case of Jacob Mathew vs State of Punjab, the SC set high standards for accepting private complaints of negligence. This verdict could change the terms of the implicit contract between doctor and patient.

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