On Medical Malpractice

Today’s news brought headlines of the largest ever medical negligence judgement in India: 6.08 Rs Crore awarded by the Supreme Court to a U.S. doctor whose child psychologist wife died during a visit to India in 1998 when she was misdiagnosed and mistreated for a rare skin disease at AMRI in Calcutta. This was an increase over the 1.73 crore the National Consumer Dispute Resolution Commission had ordered the hospital and attending doctors pay in 2011. The Supreme Court judgement is 210 pages.  The relevant part as pertains to compensation though seems to be this:

Loss of income of the deceased: Rs. 5,72,00,550
For Medical treatment in Kolkatta and Mumbai: 7,00,000
Travel and Hotel expenses at Mumbai: 6,50,000
Loss of consortium: 1,00,000
Pain and Suffering:  10,00,000 [the appellant had asked for 4,50,00,000] Cost of litigation: 11,50,000

By far most of the award came from her expected income in the United States (she was relatively young when she died). The Court said that it is correct to “consider the high status and standard of living of both the victims and dependents” of foreigners killed through negligence in India. It then relied on expert testimony about projections on what her income would have been. They claimed the NCDRC had miscalculated this at too low a rate and so increased the judgment.  In coming to this conclusion it relied on a motor vehicles case in which it awarded 10.38 crores for the death of an American in his 40s.

The case raises interesting questions about whose life is worth what (and who is in a position to pay). One might wonder if the Court also had other audiences in mind. Although she was
Indian American and visiting family when she became ill, the Supreme
Court might have raised the compensation amount in part to give greater
faith to those who come to India for medical tourism that they will have
robust recourse if they suffer medical negligence. On the other hand, since
such a large amount was given in compensation doctors in India -particularly those treating wealthier or foreign patients – may need
to seek out more costly medical malpractice insurance in response, thereby increasing the cost of care for these patients.

Interestingly, if you read the NCDRC’s 2011 order you will see this wasn’t actually a cut-and-dry case. I don’t have the expertise to get into the merits of whether there was negligence or not, but the NCDRC initially found there was not negligence in a 2006 order, which the Supreme Court overturned and sent back to the NCDRC for reconsideration, which then resulted in their 2011 order for compensation (which was then increased in the judgment on Thursday). Regardless of the complexity of the matter, once negligence was found, compensation needed to be determined.

While in this case the patient died of a very rare skin disease, most medical negligence in India is much more straightforward and on an absolutely vast scale. This paper by Jishnu Das et al is worth checking out. His team sent in mock patients complaining of symptoms to real diseases to actual medical providers in rural Madhya Pradesh and in Delhi to see how they would be treated. Strikingly, they found that 67% of medical providers in rural Madhya Pradesh had no medical qualifications at all. Even in public health clinics 63% of patients were treated by someone with no medical qualifications. Interactions between doctor and patient averaged 3.6 minutes, the correct treatment protocol was followed only 30.4% of the time and unnecessary or harmful treatment was prescribed 41.7% of the time. When a diagnosis was given about half were wrong and only 12.2% fully right. Frighteningly, qualified practitioners and those without any qualifications were about equally likely to give correct treatment. The complaints of illnesses that were presented to the providers were not rare skin diseases, but rather common (if potentially quite deadly) ailments – dysentery, asthma, heart attack, etc. Even in Delhi only in 45.6% of cases was the correct treatment given by the medical provider. What this study, and others like it, points to is massive medical negligence occurring in India (for example, take this separate study that found only 3 of 106 providers surveyed in Bombay could write the correct prescription for multi-drug resistant TB).

So what are we to make of large medical negligence awards being given to foreigners being treated at supposedly high-end hospitals in metros while most Indians are routinely misdiagnosed and mistreated for very serious ailments that almost certainly results in thousands, if not lakhs, of preventable deaths a year? How can a legal regime for negligence operate fairly in an India that has both a (relatively) large high-end medical services industry and a massive low-end one? Clearly, a villager who suffered similar, or worse, negligence could not expect a similar outcome as given in this Supreme Court case. First, they do not have an expected income anything approaching the deceased in this case. Second, they would not have the resources to pursue the matter for fifteen years in the court. Third, even if they were given a large award their medical provider likely would not be in a position to pay it, meaning they could only collect a small fraction.

Most of what can and should be done to tackle medical negligence is outside the domain of courts – improving training for medical providers, getting information to potential patients about who are the most component providers in their area, instituting rigorous management systems to ensure the following of medical checklists within hospitals and other medical institutions, increasing state resources for medical service provision, etc. The courts will need to figure out the limited places where they can intervene to help support taking on this problem without causing unintended adverse consequences. My hunch is that a system of medical negligence overall does help (although there needs to be better study about how the current system operates). It allows doctors and hospitals to know that there is recourse for patients, even if just the wealthier ones. Courts though need to be able to appropriately judge what is malpractice and what is not so that providers do not become overly cautious in giving care or become preoccupied with non-meritorious negligence claims. I particularly worry about the generally weak science and math background of many in the profession (for many lawyers – and judges – the last science class they took was in secondary school). Judges will need a competent background in science and economics to make sense of the most appropriate intervention in a specific case and the best intervention for the health of the medical services profession overall.

Written by
Nick Robinson
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  • Nick: Being a strong believer in the law and economics jurisprudence, I cannot agree more with your last paragraph. As Justice Holmes said it long ago, "For the rational study of the law, the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics."

  • i am a practicing surgeon with a law degree (acquired just for the knowledge) and having seen all aspects of medical negligence from both sides of the issue, i can only comment that as far as tort law is weak in our country with absence of punitive damages- medical negligence cases cannot be reduced far alone eliminated…our judges are usually very conservative and allow only paltry sums as compensation (for fear of being pulled up by the apellate authorities) and this timidity is factored in by those quacks and unethical practioners who know that at the most they might get a slap on the wrist and a little fine….in exchange for all the money they canend up making by then…so unless the higher courst stop castigating the lower courts findings with large amount compensation – the subordinate judiciary will not pick up the spine to make an effort to grant justice to the common man – and thats where the real action lies…..

  • Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice.
    Medical Negligence