IN THE HIGH COURT OF MANIPUR AT IMPHAL

Transcription

1 1 IN THE HIGH COURT OF MANIPUR AT IMPHAL W.P. (C) No. 998 of 2015 Smt. Nongthombam (N) Samadram (O) Chaobi Devi, aged about 42 years, W/O (L) Samadram Khogen Singh, resident of Waithou Bazar, P.O., P.S. and District: Thoubal, Manipur. Petitioner -Versus- 1. The State of Manipur, through Commissioner (Health), Govt. of Manipur, Imphal, Manipur. 2. The Director of Health Services, Govt. of Manipur, Imphal, Manipur 3. The Medical Superintendent, Thoubal District Hospital, Govt. of Manipur. 4. The J.N. Institute of Medical Sciences through the Director, JNIMS, Porompat, Imphal, Manipur Respondents BEFORE HON BLE MR. JUSTICE N. KOTISWAR SINGH For the Petitioner :: Mr. Kh. Tarunkumar, Advocate, Mr. P. Jacob, Advocate. For the Respondents :: Ms. Ch. Sundari, G.A., Mr. H. Suraj, Advocate. Date of hearing :: Date of Reserving Judgment :: Date of Judgment & Order ::

2 2 JUDGMENT & ORDER (CAV) Heard Mr. Kh. Tarunkumar, learned counsel for the petitioner, heard also Ms. Ch. Sundari, learned G.A. for the State respondents and Mr. H. Suraj, learned counsel for the respondent No.4, JNIMS. [2] The present petition has been filed seeking reliefs, inter alia, for compensation for alleged negligence of the respondents in providing proper medical service to the petitioner s injured husband. [3] It is the case of the petitioner that the petitioner s husband was earning his livelihood by driving an auto rickshaw. On , her husband was hit by a truck while he was returning home in his auto rickshaw and thereafter, he was brought in an unconscious state with severe head and abdominal injuries in the Thoubal District Hospital at around 10:00 p.m. According to the petitioner, the officials of the said Thoubal District Hospital without giving proper medical service to her husband, referred him to the Regional Institute of Medical Sciences (RIMS)/ Jawaharlal Nehru Institute of Medical Science (JNIMS). She alleged that in the Thoubal District Hospital only some stitches were given on the injured areas though her husband was found to be suffering from serious lacerated injuries over head/mouth with bleeding. She also claimed that no CT Scan for the head injury nor Ultra sound for the abdominal injury was done at the Thoubal District hospital. According to the petitioner, though the doctors at the Thoubal District Hospital knew that her husband was suffering from serious head injuries, they did not provide proper medical services nor they provided any ambulance after her husband was referred to RIMS/JNIMS and accordingly, she was compelled to take her husband by hiring a non-ambulance private vehicle. [4] Thereafter, the petitioner s husband was brought to JNIMS Hospital and was given an OPD ticket at p.m. and was admitted to the MSW-III at 1:20 a.m. of the next day. There he was advised to take CT Scan and other tests. However, since there was no provision for CT Scan in JNIMS, the petitioner did all the necessary tests including CT

3 3 Scan in a private laboratory. According to the petitioner, the condition of her husband deteriorated steadily as no proper medical service was given and accordingly, being unsatisfied with the medical service given at the JNIMS, she requested the officials of JNIMS to discharge her husband. Her husband was thereafter, discharged from JNIMS on at 5:15 p.m. and she rushed her husband to a private hospital, namely, Shija Hospitals and Research Institute where he was kept in ICU. However, he expired on and the petitioner incurred expenditure of over Rs. 3 lakh for his treatment. [5] The petitioner, being not well off and being dependent on the income of her husband earned from the running the auto rickshaw, submitted a representation to the state respondents for granting compensation for the negligence on the part of the officials of the Thoubal District Hospital, which however, was not attended to. Having obtained no response from the authorities, the petitioner has filed this petition. [6] Mr. Kh.Tarunkumar, learned counsel for the petitioner has submitted that if proper treatment had been given at the Thoubal District Hospital, soon after her husband was injured, perhaps that could have saved his life. In any event, since the Thoubal District Hospital failed to give the initial critical medical service to her husband, it accelerated his death and accordingly, has sought for payment of compensation by the State respondents for negligence on the part of the State authorities to provide proper medical service. [7] The state respondents No.1 to 3, however, have denied the allegations by filing affidavit-in-opposition. The respondent No.4 has not filed any affidavit-in-opposition. It has been stated in the affidavit-inopposition of the respondent Nos. 1 to 3 that soon after the petitioner s husband was brought to the Thoubal District Hospital, he was given first aid, emergency services and other necessary services including stitching, dressing of wounds and I.V. fluids. It was detected that the husband of the petitioner was suffering from a major head injury and since the Thoubal District Hospital has no Neurosurgeon and other facilities like CT Scan, Ultrasound and ICU, the husband of the petitioner was referred to

4 4 RIMS/JNIMS for further treatment, where abundant facilities are available. As regards the allegation that no ambulance service was made available, the respondents admitted that the same could not be provided as the ambulance was not functional because of some defects. Accordingly, it has been stated there was no negligence on the part of the respondents, and as such, the respondents are not liable to pay any compensation. It has also been contended on the part of the respondents that the petitioner had been compensated by the owner of the truck, which was involved in the accident which led to the death of her husband through appropriate forum. [8] Mr. Kh. Tarunkumar, learned counsel for the petitioner, however, relying on the decision of the Hon ble Supreme Court in Paschim Banga Mazdoor Samity And Others Vs. State of W.B. and Another reported in (1996) 4 SCC 37 has submitted that the Government Hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21, and as such, the State cannot avoid its responsibility for such denial. Accordingly, Mr. Tarunkumar, learned counsel for the petitioner, relying on the aforesaid decision of the Hon'ble Supreme Court submits that the respondents ought to pay compensation to the petitioner for medical negligence which led to the denial of fundamental right of her husband s life guaranteed under Article 21 of the Constitution of India. [9] Heard learned counsel for the parties and perused the materials on record. [10] In CESC Ltd. vs. Subhas Chandra Bose, (1992) 1 SCC 441, while interpreting the section 2 (9) of the Employees State Insurance Act, 1948 and the liability of the Calcutta Electricity Supply Corporation India Limited towards the workers employed by its contractors, Hon ble Mr. Justice K. Ramaswamy, by invoking Article 25 (2) of Universal Declaration of Human Rights, 1948, Article 7 (b) of the International Covenant on Economic, Social and Cultural Rights and

5 5 Article 39 (2) of the Constitution of India, in his dissenting judgment observed that health and strength of a worker is an integral facet of right to life and right to life would include proper medical care and health facilities and accordingly held that right to health is a fundamental human right of the workmen. This legal position has been largely adopted by the Hon ble Supreme Court in subsequent cases. [11] In a subsequent judgment in the State Of Punjab & Ors vs Mohinder Singh Chawla reported in (1997) 2 SCC 83, the Hon ble Supreme Court reiterated that right to health is integral to the right to life and the Government has a constitutional obligation to provide health facilities. In the said case of Mohinder Singh Chawla (supra), it was held by the Hon ble Supreme Court that if a Government servant suffered an ailment which requires treatment at a specialised approved hospital and on reference, the Government servant had undergone such treatment therein, the State is duty bound to bear the expenditure incurred by the Government servant. Though, the issue of reimbursement of the expenditure incurred by the present petitioner has not arisen in this case as neither the petitioner nor her husband was a Government employee, the responsibility of the State to provide adequate medical facilities to its citizens cannot be ignored as it is the obligation of the State to ensure proper medical health care and treatment which cannot be confined only to its employees but will also extend to the public at large. [12] In Paschim Banga Mazdoor Samity (supra), the Hon'ble Supreme Court was dealing with the issue of non availability of facilities for treatment of serious injuries in various Government Hospitals in Kolkata which resulted in denial of fundamental right of the patient guaranteed under Article 21 of the Constitution. Hon ble Supreme Court held that Article 21 imposes the obligation on the State to safeguard the right to life of every person and accordingly, the Govt. hospitals run by the State are duty bound to provide proper medical assistance and failure to do so would result in violation of the right to life guaranteed under Article 21. Accordingly, it was held in para 9 as follows:-

6 6 9. The Constitution envisages the establishment of a welfare state at the federal level as well as at the state level. In a welfare state the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State in hospitals run by the State, the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh. In respect of deprivation of the constitutional rights guaranteed under Part III of the Constitution the position is well settled that adequate compensation can be awarded by the court for such violation by way of redress in proceedings under Articles 32 and 226 of the Constitution. (See : Rudal Sah v. State of Bihar 4 ; Nilabati Behara v. State of Orissa 5 ; Consumer Education and Research Centre v. Union of India 6 ]. Hakim Seikh should, therefore, be suitably compensated for the breach of his right guaranteed under Article 21 of the Constitution. Having regard to the facts and circumstances of the case, we fix the amount of such compensation at Rs. 25,000/-. A sum of Rs. 15,000/- was directed to be paid to Hakim Seikh as interim compensation under the orders of this Court dated The balance amount should be paid by respondent No. 1 to Hakim Seikh within one month. 4 : (1983) 4 SCC 141 : 1983 SCC (Cri) 798 : 1983 (3) SCR : 1993 (2) SCC 746: 1993 SCC (Cri) : 1995 (3) SCC 42 : 1995 SCC (L & S) 604 [13] In the said case, the deceased person was a member of the petitioner Samity, who fell off a train, because of which he suffered serious head injuries and brain haemorrhage. He was taken to a primary health centre, but as the primary health centre did not have the necessary facilities for treatment, he was referred to another sub divisional hospital where he could not be admitted as no vacant bed was available, because of which he was taken to another Government

7 7 hospital with similar result. Similar fate awaited him in 2 (two) other government hospitals where he was taken. During the pendency of the said petition, an enquiry Committee was constituted by the State Government which made certain recommendations including for taking steps for upgradation of the District Hospitals, Sub-Divisional Hospitals and the State General Hospitals so that a patient in a serious condition may get treatment locally, which were accepted by the State Government. The Hon'ble Supreme Court, after taking into consideration the recommendation of the Committee and after hearing the submissions advanced by the parties, made the following observations and directions. 15. We have considered the aforesaid submissions urged by Shri Dhavan. A part from the recommendations made by the Committee in that regard and action taken by the State Government in the memorandum dated on the basis of the recommendations of the Committee, we are of the view that in order that proper medical facilities are available for dealing with emergency cases it must be that : 1. Adequate facilities are available at the Primary Health Centres where the patient can be given immediate primary treatment so as to stabilize his condition; 2. Hospitals at the district level and Sub-Division level are upgraded so that serious case can be treated there; 3. Facilities for giving specialist treatment are increased and are available at the hospitals at District level and Sub-Division level having regard to the growing needs. 4. In order to ensure availability of bed in an emergency at State level hospitals there is a centralized communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment which is required. 5. Proper arrangement of ambulance is made for transport of a patient from the Primary Health Centre to the District hospital or Sub-Division hospital and from the District hospital or Sub Division hospital to the State hospital. 6. The ambulance is adequately provided with necessary equipment and medical personnel. 7. The Health Centres and the hospitals and the medical personnel attached to these Centres and hospitals are geared to deal with larger number of patients needing emergency treatment on account of higher risk of accidents on certain occasions and in certain seasons.

8 8 16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See : Khatri (II) v. State of Bihar 7, SCC at p. 631]. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. It is necessary that a time-bound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same. The State of West Bengal alone is a party to these proceedings. Other States, though not parties, should also take necessary steps in the light of the recommendations made by the Committee, the directions contained in the Memorandum of the Government of West Bengal dated and the further directions given herein. (emphasis added) 7: (1981) 1 SCC 627 : (1981) SCC (Cri) 228 It may be mentioned that the aforesaid directions were not confined only to the State of West Bengal but to all other states as also clearly evident from the observation made in para 18 quoted above and the direction in Para 19 of the aforesaid judgment which reads as follows. 19. A copy of the judgment be sent for taking necessary action to the Secretary, Medical and Health Department of the States. [14] In Ashok Kumar Thakur Vs. Union Of India reported in (2011) 12 SCC 787, the Hon ble Supreme Court, relying on the decision of Paschim Banga Mazdoor Samity And Others (supra), held that a person s right to medical treatment is inseparable from Article 21 of the Constitution of India and deprecated the strike/cessation of work etc. by the doctors which denied medical services to the patients and common man. [15] In Balram Prasad Vs. Kunal Shah, (2014) 1 SCC 384, while dealing with the medical negligence and liability of the medical practitioners, it was reiterated that the right to health is a fundamental

9 9 right under Article 21 of the Constitution and right of the patients to be treated with dignity is both a fundamental right as well as human right, and hospital/nursing homes/clinics are liable to provide treatment to the best of their capacity to all their patients irrespective of their social, cultural, economic background. [16] In State of Jammu and Kashmir Vs. Vichar Kranti International & ANR., reported in (2016) 16 SCC 290, the Hon ble Supreme Court while dealing with quality of medical care in Government Hospital across the State of Jammu & Kashmir commended the High Court of Jammu & Kashmir for constituting a committee of experts to scrutinise conditions of public government hospitals in the State so that proper medical care of a requisite standard can be provided to the poorest strata of the society, and accordingly observed that following issues need to be addressed :- (i) (ii) (iii) (iv) (v) availability of adequate infrastructure in government hospitals; availability of essential equipment for treatment; availability of staff-medical, para medical and of a supporting nature; enforcement of conditions of hygiene to secure proper medical treatment facilities; and availability of essential medicines. This Court is of the view that the aforesaid concern expressed by the Hon ble Supreme Court for providing proper medical treatment facilities to the State of Jammu and Kashmir will also be equally applicable to the State of Manipur. [17] From the above decisions of the Hon ble Supreme Court, it can be said with certainty that right to health and medical treatment is now an integral facet of the fundamental right as guaranteed under Article 21 of the Constitution of India. [18] In the present case, it is the admitted position that there is no CT Scan facility available in the Thoubal District Hospital as the

10 10 respondents in their affidavit have clearly admitted to the absence of the CT Scan facility in Thoubal District Hospital. The respondents have also admitted that ambulance could not be provided to the petitioner s injured husband at the relevant time as the ambulance was out of order. The allegation of the petitioner that JMNIS Hospital also did not have CT Scan facility and other facilities for conducting various tests were not readily available has remained unrebutted. [19] It may be noted that as per the guidelines for District Hospitals issued by the Directorate General of Health Services, Ministry of Health & Family Welfare, Government of India, the equipment norms have been worked out keeping in mind assured service recommended for various grades and which may be available in ideal situations have been indicated as desirable and rest as essential. Under the said norms, it is indicated that it is desirable to have one CT Scan for every District Hospital. In other words, though it is not mandatory to have a CT Scan in the District Hospital as it is not an essential requirement, yet it is a desirable one under the norm laid down by the Ministry. It is to be noted that in the State of Manipur, there are very few District Hospitals and some of these are located at locations far off from the Imphal city. In order to meet emergency situations like in the present case, rather than requiring the seriously injured patient to be shifted to Imphal by travelling long distances, it is highly desirable that the District Hospitals are also equipped with such medical facilities including CT Scan etc., so that severe head injuries can be treated locally as in such cases, unless the injuries are taken care of promptly, it may prove to be fatal. Accordingly, this Court expects that the State authorities will immediately take steps to upgrade the District Hospitals by way of providing CT Scan and as such other equipments, and necessary doctors, to deal with cases of serious head injuries locally, in the light of the directions issued by the Hon ble Supreme Court in paras 15 and 16 of the aforesaid judgment of Paschim Banga Mazdoor Samity And Others (supra). [20] In the present case, what has been observed is that apart from lack of CT Scan and other medical facilities to take care of serious

11 11 head injuries in the District Hospital, there was no ambulance available at the relevant time which compelled the petitioner to hire a private vehicle and not an ambulance, for ferrying her injured husband to Imphal. There was every possibility that the serious head injuries received by her husband could have deteriorated in absence of proper ambulance to rush him to the Imphal. It has been also noted in this case that even after the petitioner s husband was shifted to JNIMS, a Hospital managed by a State Government sponsored society, and which certainly is not a private hospital, also did not have the facilities of CT Scan etc., and the petitioner claimed that the petitioner did all the relevant tests in a private laboratory. These allegations have not been controverted by the respondents including respondent No.4. Since the petitioner s husband did not receive proper medical care and attention even in JNIMS, the petitioner was compelled to seek discharge of her husband from JNIMS so that he can be admitted to a private hospital. [21] From the above, what this Court can conclude is that the petitioner s husband did not get proper medical facilities for treatment of his serious head injuries either at Thoubal District Hospital or at the JNIMS Hospital. It is a different matter that the injury which the petitioner s husband received might be of such a nature that life of the petitioner could not have been saved even after he was given proper treatment. That is an issue which is not being considered by this Court in this petition, but only with the issue as to whether normal medical treatment was given to the petitioner s husband, a patient with serious head injury in the Government run/managed/sponsored hospital at a critical stage of the injurious condition. There is nothing to show that the petitioner s husband had received proper adequate medical treatment either in Thoubal District Hospital or at JNIMS Hospital. [22] In view of the above, this Court is of the opinion that the fundamental right of the petitioner s husband as guaranteed under Article 21 of the Constitution of India to have proper medical treatment has been denied. Accordingly, this Court would invoke extraordinary

12 12 jurisdiction under Article 226 of the Constitution of India of the Constitutional remedy available under public law for violation of the fundamental right of a citizen and impose an amount of Rs. 2 (two) lakhs as compensation for violation of right to life of the petitioner s husband guaranteed under Article 21 of the Constitution of India which will be paid by the State Respondent to the petitioner. [23] It may be noted that this award of compensation is not for the death of the petitioner s husband but for the reason that the petitioner s husband was not given prompt and proper medical care, treatment and attention when he was suffering from serious head injuries from which he ultimately died. The injuries received by the petitioner might have ultimately led to his death, of which this Court is not concerned with in this petition, but with the fact that the petitioner s husband did not receive timely and appropriate medical treatment in Thoubal District Hospital as well as in the JNIMS Hospital at the initial critical stage which could have contributed to the saving of the life of the petitioner s husband. From the records, it is quite evident that the petitioner s husband did not receive proper medical treatment and care either at the Thoubal District Hospital as well as in the JNIMS hospital at the critical golden hour. [24] In medical parlance, it is well known that the golden hour refers to a time period lasting for about one hour following a traumatic bodily injury during which period, if prompt and proper medical is given, would increase the chance of survival. The Golden Hour was first described by R Adams Cowley, MD, at the University of Maryland Medical Center in Baltimore. From his personal experiences and observations in post-world War II Europe, and then in Baltimore in the 1960s, Dr. Cowley recognized that the sooner trauma patients reached definitive care - particularly if they arrived within 60 minutes of being injured - the better their chance of survival. [See:

13 13 [25] The Indian Head Injuries Foundation (IHIF) reports that, India has the rather unenviable distinction of having the highest rate of head injury in the world. In India, more than 100,000 lives are lost every year with over 1 million suffering from serious head injuries. In India, 1 out of 6 trauma victims die, while in the United States this figure is 1 out of 200. This seemingly unbreachable gap speaks volumes of the perfected PTC procedures in US and their near absence in India. Half of those who die from TBI do so within the first two hours of injury. It is now known that only a portion of neurological damage occurs at the moment of impact (primary injury); damage progresses during the ensuing minutes, hours and days. The secondary brain injury can result in increased mortality and disability. Consequently, the early and appropriate management of TBI is critical to the survival of these patients. This while being a critical factor in the overall prospects of a patient is yet to be fully appreciated. In 1991, 60,000 people were killed in road traffic accidents (RTA s), as compared to 24,600 in This figure is now closing in on 100,000 deaths per year. Ninety-five percent of trauma victims in India do not receive optimal care during the golden hour period after an injury is sustained, in which health care administration is critical. The outcome of TBI is drastically correlated to the response of pre-hospital care and rehabilitation. Thirty percent of those who currently die from head injuries could be saved if quality care were available to them sooner. Most road traffic accident victims are in the 20- to 40- year age group, the main bread-earners of the family, putting the whole family below the poverty line in many cases while depriving society of vital drivers of economy as in many cases these are entrepreneurs or professionals.

14 14 Pedestrians and motorcyclists are the most common victims of road traffic accidents in India. By 2050, India will have the greatest number of automobiles on the planet, overtaking the United States. [See: [26] This award of compensation for violation of the right of the petitioner s husband under Article 21 of the Constitution of India is independent of the remedy available to the petitioner to seek damages/compensation for the death of her husband under the normal civil law. [27] Accordingly, for the reasons discussed above, the present petition is allowed with the direction to the State respondents to pay a sum of Rs. 2 (two) lakhs to the petitioner for failure on the part of the State respondents in giving proper medical care and treatment to the petitioner s husband resulting in violation of his fundamental right guaranteed under Article 21 of the Constitution of India. The aforesaid amount will be paid by the Respondent No.1 to the petitioner within a period of 2(two) months from today. [28] The State Respondents are also directed to take appropriate measures for upgrading the medical facilities in the District Hospitals in terms of the directions of the Hon ble Supreme Court in Paschim Banga Mazdoor Samity And Others Vs. State of W.B. and Another, (1996) 4 SCC 37. [29] The petition stands disposed of accordingly with the above directions. FR/NFR Sushil JUDGE