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Determination of Damages in Medical Negligence Cases: An Overview

Medical professionals are treated as next to God. They provide humanitarian services and gives solace to individuals suffering from various diseases and disorders. Due to their great service to humanity, the doctors and medical professionals are treated with reverence and since the ancient times the medical profession has been considered as a noble profession. However with the passage of time, there has been a change in the doctor – patient relationship. During the last few decades a number of incidents have come to light in which the patients have suffered due to the error and inadvertent conduct of doctors. Due to the increasing conflicts and legal disputes between the doctors and patients, most of the legal systems have developed various rules and principles to deal with such inadvertent behavior of doctors. This has led to the development of a new branch of jurisprudence, i.e. medical negligence. Hence, any negligence on part of the medical professional would be treated as either a tort of negligence or a deficiency in service under Consumer Protection Act, 1986. 
 
In medical negligence cases either under tort of negligence or under Consumer Protection Act, 1986, the remedy is mainly damages. Generally assessing damages in case of negligence is an easy task. However assessing damages for the pain and other mental suffering is a herculean task. Generally, in medical negligence case there is an involvement of pain and mental suffering. The damages are assessed on the ground of loss suffered by the patient. Hence in every medical negligence case the patient is bound to prove the loss suffered by him due to the negligence of the defendant. It is to be noted that, under deficiency in medical service case a patient is not required to prove the loss. Thus in such cases assessing proper damages is not an easy task for consumer protection forums. 
 
The Supreme Court of India in a number of cases observed that, different courts and tribunals in the country after exercising judicial discretion in determining the amount of compensation in an inconsistent manner, which led to uncertainty and unpredictability, causing anxiety to the claimants and also leaving room for arbitrariness. The Court also emphasized about the need for a framework to identify just, fair, and adequate compensation in case of medical mishaps. Hence there is a need to have an appropriate framework and clear-cut rules to assess compensation in medical negligence cases. This paper examines the different methods of assessing compensation such as lump sum compensation; just and fair compensation and; multiplier method. It also tries to identify the problems involved in these methods of assessing damages and tries to propose a better framework for assessing damages in such cases.