Course correction

Print edition : November 29, 2013

At the entrance of AMRI Hospitals in Kolkata. Photo: Arunangsu Roy Chowdhury

The Central Secretariat in New Delhi. Photo: rajeev bhatt

The Supreme Court awards a non-resident Indian an enhanced compensation for medical negligence by a Kolkata hospital. In another significant ruling, it seeks to curb political interference in the functioning of the bureaucracy.

TWO recent judgments of the Supreme Court will long be remembered for their outstanding contribution to improving the quality of health care and bringing greater accountability in public administration.

On October 24, a Supreme Court Bench comprising Justices Chandramauli Kr. Prasad and V. Gopala Gowda significantly enhanced the compensation awarded by the National Consumer Disputes Redressal Commission (NCDRC) in 2011 to Dr Kunal Saha, husband of Anuradha Saha who died owing to medical negligence in 1998. The court directed the Kolkata-based Advanced Medicare and Research Institute (AMRI) Hospitals and three doctors to pay Saha Rs.6,08,00,550 with 6 per cent interest from the date of his complaint in 1999 to the date of payment. It held the hospital vicariously responsible for its doctors and, therefore, directed it to pay the total amount of compensation with interest awarded in the appeal of the claimant, which remains due after deducting the total amount of Rs.25 lakh payable by the appellant-doctors as per the order. The NCDRC had ordered a compensation of Rs.1.33 crore

The court maintained that to deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice to the claimant. Therefore, it invoked the principle restitutio in integrum, that is, the claimant must receive the sum of money which would put him in the same position as he would have been if he had not sustained the wrong.

The court held that the NCDRC wrongly rejected Saha’s different claims without any consideration and wrongly assumed that the claims made before it could not be changed or modified without prior pleadings under any other condition. Anuradha, an India-born American citizen, was at the beginning of a productive career as a child psychologist. She graduated from Columbia University in New York City in 1998. The same year, she accompanied her husband, Kunal Saha, an AIDS researcher in the United States, to Kolkata, the city they hailed from. Anuradha, then 38, suffered from minor skin rashes as a result of an allergic reaction to medication. Kunal took her to the AMRI Hospitals for treatment.

On May 11, 1998, when Dr Sukumar Mukherjee examined Anuradha, she had rashes all over her body. This being a case of dermatitis, he should have referred her to a dermatologist. Instead, he prescribed “depomedrol”, a long-acting steroid, for the next three days on the assumption that it was a case of vasculitis.

Expressing shock at the nature of negligence on the part of the doctors who treated Anuradha and the hospital, the court said that the daily dosage of 120 mg of depomedrol prescribed by the doctor was much higher than the drug manufacturer’s maximum recommended usage. The doctor’s prescription of depomedrol without diagnosing the nature of the disease was a wrongful act on his part, it recorded. The court said the effect of immuno-suppression caused by steroids had affected the immunity of the patient, and the doctor had failed to take note of the said consequences. The Bench observed that Dr Mukherjee had shown utmost disrespect to his profession by being so casual in his approach in treating a patient.

On May 12, 1998, Dr Mukherjee left for the U.S. to attend a conference. The medication prescribed by him was stopped on the advice of Dr Baidyanath Halder, a dermatologist. But he did not take any remedial measures against the excessive amount of depomedrol that was already present in the patient’s body. Instead, he prescribed a quick-acting steroid, prednisolone, at 40 mg three times a day, which was an excessive dosage considering the fact that a huge amount of depomedrol had already accumulated in Anuradha’s body.

The court found Dr Halder guilty of not providing aggressive supportive therapy considered to be rudimentary for TEN (toxic epidermal necrolysis) patients. The failure of Dr Halder to ensure that vital signs of the patient such as temperature, pulse, intake-output and blood pressure were regularly monitored was another act of negligence. He had conducted himself with utmost callousness in giving treatment to Anuradha, which led to her demise, the court concluded. The court directed Dr Mukherjee and Dr Halder to pay a compensation of Rs.10 lakh each to Saha.

Dr Balram Prasad was an attending physician in the hospital. Since he was a junior doctor, his contribution to the negligence was far less than that of the senior doctors involved. Therefore, the court directed him to pay a compensation of Rs.5 lakh to Saha.

Since Anuradha’s condition deteriorated, Saha hired a private chartered flight to go to Mumbai, to continue correct treatment at Breach Candy Hospital. But she did not recover. She died on May 28, 1998.

Saha first filed a petition before the NCDRC in 1999, seeking a compensation of Rs.77,07,45,000, and later amended it by claiming another sum of Rs.20 crore.

On October 21, 2011, the NCDRC held the doctors and the AMRI Hospitals negligent in treating Anuradha on account of which she died. But it only awarded a compensation of Rs.1,34,66,000. This was challenged by all parties—Saha, the doctors and the hospital—before the Supreme Court. While Saha was aggrieved at the inadequate amount of compensation, the doctors and the hospital found the amount to be excessive and the verdict too harsh.

In 2009, while remanding the issue of quantifying the compensation to the NCDRC, the Supreme Court had observed that the standard of medical care at the AMRI Hospitals was abysmal and so 80 per cent of the total compensation should be imposed on the hospital.

Anuradha was a graduate in psychology from an Ivy League school and had a bright future ahead of her. The NCDRC, however, calculated the entire compensation and prospective loss of income solely on the basis of her pay receipt which showed an annual income of $30,000, which she was earning as a graduate student. The Supreme Court described this as a grave error.

In its October 24 judgment, the court held that the prospective loss of income from the wrongful death of Anuradha must be reasonably judged on the basis of her future potential in the U.S. As Anurdha and Saha were both U.S. citizens and permanently settled as a “child psychologist” and AIDS researcher respectively, the compensation in the case should be calculated in terms of the status and standard of living in the U.S., the court held.

The total quantum of claim Saha had made before the Supreme Court stood at Rs.97,56,07,000. However, considering the precedents applicable in similar cases, the court granted a reduced sum. Dr Mukherjee and Dr Haldar attempted to claim that they could not be penalised with compensation because they did not charge any fee for the treatment of Anurdha. The court accepted Saha’s argument that from a moral and ethical perspective, a doctor cannot escape liability for causing the death of a patient owing to medical negligence on the grounds that he did not charge any fee. If that was true, poor patients in many charitable hospitals could be killed with impunity by errant and reckless doctors. In 1996, the Supreme Court had pronounced in Paschim Banga Khet Mazdoor Samity vs State of West Bengal that the right to health of a citizen was a fundamental right guaranteed under Article 21 of the Constitution. It held that all government hospitals, nursing homes and poly-clinics were liable to provide treatment to the best of their capacity to all patients. The Kunal Saha case gave the court another opportunity to amplify that right.

In Paragaph 149 of its judgment, the court held: “The doctors, hospitals and nursing homes and other connected establishments are to be dealt with strictly if they are found to be 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. We, therefore, hope and trust that this decision acts as a deterrent and a reminder to those doctors, hospitals, nursing homes and other connected establishments who do not take their responsibility seriously.”

Civil service autonomy

On October 31, a Supreme Court Bench comprising Justices K.S. Radhakrishnan and Pinaki Chandra Ghose, in T.S.R. Subramanian and others vs Union of India and others, dealt with a writ petition filed by few eminent retired civil servants highlighting the need for reforms to preserve the integrity, fearlessness and independence of civil servants. The petition, demanding reforms to ensure that the bureaucracy was insulated from unwarranted political interference, was based on the reports and recommendations of various committees appointed to improve public administration.

The Bench observed that of late, the Union Public Service Commission (UPSC) and the State PSCs were being deprived of their powers of consultation while making promotions and transfer from one service to another. It held that while civil servants were accountable to the political executive, they had to function under the Constitution and as such were accountable to the people of the country.

It directed the Centre, the State governments and the Union Territories to constitute Civil Service Boards (CSBs) with high-ranking serving officers, who are specialists in their respective fields, within three months, if not already constituted, until Parliament enacts a law to set up the CSB.

The Bench noted that at present civil servants did not enjoy stability of tenure, particularly in State governments where transfers and postings were made at the whims and fancies of the executive head for political and other considerations and not in the public interest. It pointed out that the necessity of minimum tenure had been endorsed and implemented by the Centre. The court also noted that almost 13 States had accepted the need for a minimum tenure for civil servants. A fixed minimum tenure would not only enable civil servants to achieve their professional targets, but also help them function as effective instruments of public policy. Repeated shuffling/transfer of officers was deleterious to good governance, the court held held.

Dwelling on other advantages of fixed tenure, the Bench said that a minimum assured service tenure ensured efficient service delivery and increased efficiency. It would help the officers prioritise various social and economic measures intended to be implemented for the poor and marginalised sections of society, it added. The Bench directed the governments to issue appropriate directions to ensure a minimum tenure of service to civil servants within three months.

The Bench concurred with the petitioners that much of the deterioration in the standards of probity and accountability could be traced to the practice of issuing and acting on verbal instructions or oral orders.

Rule 3(3)(iii) of the All India Service Rules, 1968, specifically requires that all orders from superior officers shall ordinarily be in writing. Where action has to be taken on the basis of oral directions in exceptional circumstances, it is mandatory for the superior officer to confirm the same in writing. The civil servant who has received such information, in turn, is required to seek confirmation of the directions in writing as early as possible, and it is the duty of the superior officer to confirm the direction in writing. The court observed that civil servants could not function on the basis of verbal or oral instructions, orders, suggestions, or proposals and that they should be protected against wrongful and arbitrary pressure exerted by their administrative superiors, the political executive, and business and other vested interests.

Further, the court said that civil servants should not have vested interests. As such, there should be some record to demonstrate how he/she had acted; if the decision was not his/hers and if he/she was acting on oral instructions, he/she should record such directions in the file. Recording of instructions and directions was necessary to fix responsibility, ensure accountability and uphold institutional integrity, the court held.

Although the court’s observations have given rise to general optimism that it will ensure good governance, apprehensions persist whether the political class will implement them with sincerity.

Prakash Singh, former Border Security Force Director General, whose public interest petition led to the Supreme Court’s landmark judgment on police reforms in 2006, is less optimistic about the implementation of the judgment. No State has complied with the court’s directions in the police reforms case in letter and spirit. As in the police reforms case, the court’s continuous monitoring of the compliance reports in the T.S.R. Subramanian case may reveal the practical problems involved in implementing its directives.

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