Digressing to diversify: Consequences of healthcare or lack thereof! – Supreme Court of India awards Rs 11 crore as compensation in a 15 year old medical negligence case (Times of India,October 26, 2013).

View one:  “The Supreme Court’s decision to award around Rs 11 crore as compensation to the plaintiff of the 15-year-old Anuradha Saha medical negligence case is welcome. The judgement and the compensation amount – the highest in India – highlight the problem of increasing medical malpractice in the country and should serve as a deterrent in similar cases. There is no denying that India’s healthcare sector is in poor shape. While public hospitals and clinics suffer from a woeful lack of infrastructure, private service providers have been accused of profiteering and other exploitative practices. A weak regulatory regime has led to the rise of an unholy nexus between doctors, hospitals and diagnostic services. Hence, patients are left at the mercy of a venal system with few alternatives.

In such a scenario, it becomes very difficult for victims and their kin to prove cases of medical negligence. Given the technical nature of the medical profession, negligent acts of omission or commission need to be verified by fellow doctors who hardly ever support the patient. Besides, victims fear that reporting cases of malpractice will deny them treatment in future. Thus in this skewed doctor-patient relationship it’s the duty of the system to protect the latter. Enhanced monetary compensation for proven cases of medical negligence is a useful way of balancing out the power equation between health service providers and ordinary citizens.”

Counterpoint:

“The Supreme Court’s landmark judgement in the medical negligence case pertaining to Anuradha Saha is being spoken of as a watershed development. It is, but not in the way people imagine. The judgement may trigger the introduction of some of the worst aspects of American healthcare to India, marrying  it with the worst aspect of India’s legal system  – namely judicial delays.

Given the apprehension among doctors following this decision, don’t be surprised if India soon sees its version of defensive medicine. This occurs when diagnostic measures do not prioritise the recovery of the patient, but seek to treat the patient from the standpoint of protecting the doctor from malpractice litigation.

There’s another way in which the recent development can make the system poorer. The Saha judgement exceeds Rs 11 crore in damages when interest charges are added. With this kind of mind boggling figure, doctors will inevitably look to insure themselves against potential liability. The cost of insurance will surely be passed on to patients. Healthcare in India is not inexpensive. Expect it to get more expensive.”

One need to have a close look at the fine print of the judgement to understand as to what extent the quantum awarded is a function of the victim being an NRI and how far would this potentially bump up the multipliers for claims by resident Indians? The fundamental issue however is the crying need to get a regulator in place to mind the space. The space is everything to do with healthcare including health and medical malpractice insurance.