Contents
Paschim
Banga Khet Mazdoorsamity ... vs State Of West Bengal & Anr on 6
May, 1996. 1
Indian
Medical Association vs. V.P.Shantha, 1995 (6) SCC651. 3
ISSUE.. 3
STATE COUNSEL.. 3
Enquiry
Committee. 4
Rajeev
Dhavan : SUGGESTIONS. 13
US
'COBRA' 14
US
'COBRA' IN India. 14
SUGGESTIONS
TO OTHER STATE. 16
Paschim Banga Khet Mazdoorsamity ... v State Of West
Bengal DECIDED on6 May, 1996
Equivalent citations: 1996 SCC (4) 37, JT 1996 (6) 43: 1996
SCALE (4)282
Author: S
Agrawal
Bench: Agrawal, S.C. (J), NANAVATI G.T. (J)
In Pt. Paramanand Katara vs. Union of India & Ors.,
1989 (4) SCC 286. this Court in the context of medico-legal cases has
emphasized the need for rendering immediate medical aid to injured persons to
preserve life and the obligations of the State as well as doctors in that
regard. This petition filed under Article 32 of the Constitution raises this
issue in the context of availability of facilities in Government-hospitals for
treatment of persons sustaining serious injuries.
Hakim Seikh [petitioner No. 2] who is a member of Paschim
Banga Khet Mazdoor Samity [petitioner No. 1], an organization of agricultural
labourers, fell off a train at Mathurapur Station in West Bengal at about 7.45
P.M. on July 8, 1992. As a result of the said fall Hakim Seikh suffered serious
head injuries and brain haemorrhage. He was taken to the Primary Health Centre
at Mathurapur. Since necessary facilities for treatment were not available at
the Primary Health Centre, the medical officer in charge of the Centre referred
him to the Diamond Harbour Sub-Divisional Hospital or any other State hospital
for better treatment. Hakim Seikh was taken to N.R.S. Medical College Hospital
near Sealdah Railway Station, Calcutta at about 11.45 P.M. on July 8, 1992. The
Emergency Medical Officer in the said Hospital, after examining him and after
taking two X-ray prints of his skull recommended immediate admission for
further treatment. But Hakim Seikh could not be admitted in the said hospital
as no vacant bed was available in the Surgical Emergency ward and the regular
Surgery Ward was also full. He was thereafter taken to Calcutta Medical College
Hospital at about 12.20 A.M. on July 9, 1992 but there also he was not admitted
on the ground that no vacant bed was available. He was then taken to Shambhu
Nath Pandit Hospital at about 1.00 A.M. on July 9, 1992. He was not admitted in
that hospital and referred to a teaching hospital in the ENT, Neuro Surgeon
Department on the ground that the hospital has no ENT Emergency or Neuro
Emergency Department. At about 2.00 A.M. on July 9, 1992 he was taken to the
Calcutta National Medical College Hospital but there also he was not admitted
on account of non-availability of bed. At about 8.00 A.M. on July 9, 1992 he
was taken to the Bangur Institute of Neurology but on seeing the CT Scan (which
was got done at a private hospital on payment of Rs. 1310/-) it was found that
there was haemorrhage condition in the frontal region of the head and that it
was an emergency case which could not be handled in the said Institute. At
about 10.00 A.m. on July 9, 1992 he was taken to SSKM Hospital but there also
he was not admitted on the ground that the hospital has no facility of neuro
surgery. Ultimately he was admitted in Calcutta Medical Research Institute, a
private hospital, where he received treatment as an indoor patient from July 9,
1992 to July 22, 1992 and he had incurred an expenditure of approximately Rs.
17,000/- in his treatment.
Feeling aggrieved by the indifferent and callous attitude
on the part of the medical authorities at the various State run hospitals in
Calcutta in providing treatment for the serious injuries sustained by Hakim
Seikh the petitioners have filed this writ petition. In the writ petition the
petitioners have also assailed the decision of the National Consumer Disputes
Redressal Commission dated December 15, 1989 in Consumer Unity & Trust
Society. Jaipur vs. State of Rajasthan & Ors and it has been submitted that
the expression 'consumer' as defined in section 2(1)(d)(ii) of the Consumer
Protection Act, 1986 includes persons getting or eligible for medical treatment
in Government hospitals and that the expression 'services' as defined in
section 2(1)(o) of the Act includes services provided in the Government
hospitals also. The said question has been considered in the recent decision of
this Court in
ISSUE
In
view of the said decision the only question which needs to be considered is
whether the non-availability of facilities for treatment of the serious
injuries sustained by Hakim Seikh in the various Government hospitals in
Calcutta has resulted in denial of his fundamental right guaranteed under
Article 21 of the Constitution. There is not much dispute on facts.
STATE
COUNSEL
In
the affidavit of Ms. Lina Chakraborti, filed on behalf of the State of West
Bengal, respondent No. 1, it is stated that the rural areas of the State are
served by the Block Health Centres and by the Subsidiary Health Centres since
redesignated as "Primary Health Centres" where primary and general
treatment is provided but no specialist treatment is available. Hakim Seikh was
examined by the medical officer at the Block Health Centre at Mathurapur and
after giving him first-aid the Medical Officer referred him to the Diamond
Harbour Sub- Divisional Hospital or any State hospital for better treatment. It
is also admitted that Hakim Seikh was brought to Neel Ratan Sircar Medical
College Hospital at 11.45 P.M. on July 8, 1992 and there he was examined and
two skull X- rays were also taken. The medical officer who attended him at that
hospital recommended immediate admission for further treatment but he could not
be admitted in the particular Department, i.e., Surgery Department having neurosurgery
facilities as at the material point of time there was no vacant bed in the
Surgical Emergency Ward and the regular surgery ward was also full. It is also
admitted that Hakim Seikh was thereafter taken to the Calcutta Medical College
Hospital, Calcutta National Medical College Hospital and Bangur Institute of
Neurology in the early morning of July 9, 1992 but he could not be admitted in
any of these hospitals because of non-availability of bed. It was stated that
Hakim Seikh could Not be admitted in all the hospitals having facility of neuro
surgery as all such beds were fully occupied on the date/dates and that such a
patient cannot be given proper treatment if he is kept on the floor of a
hospital or a trolley because such arrangement of treatment is fraught with
grave risks of cross infection and lack of facility of proper post-operative
care. In the said affidavit it is also stated that total number of beds
maintained by the State Government all over the State is 57,875, out of which
90% are free beds for treatment of poor and indigent patients and all the beds
in the concerned wings in the Government hospitals in Calcutta where Hakim
Seikh reported for treatment were occupied on the relevant date/dates.
During the pendency of this writ petition in this Court
the State Government decided to make a complete and thorough investigation of
the incident and take suitable departmental action against the persons
responsible for the same and to take suitable remedial measures in order to
prevent recurrence of similar incidents. The State Government appointed an
Enquiry Committee headed by Shri Justice Lilamoy Ghose, a retired Judge of the
Calcutta High Court. The terms and reference of the said Committee were :
Enquiry Committee
"A. Enquiry into the circumstances under which the
said Shri Hakim
Seikh was denied admission to the State Government
hospitals.
B. Fixing responsibilities for dereliction of duties if
any, on the part of any Government official in this respect.
C. Recommendations on actions against the Government officials
who have found wanting in the discharge of their official
duties
in this respect.
D. Recommendations on actions that should be taken by the
State
Government to rule out the recurrence of such incident in
future and to ensure immediate medical attention and treatment to patients in
real need."
The Committee submitted its report dated March 21, 1995.
In the said report, the Committee, after examining the relevant record at the
various hospitals, has found :
i) The Primary
Health Centre at Mathurapur was not very much equipped to deal with such types
of serious patients and the nurses at the Centre attended on Hakim Seikh and
gave some treatment.
ii) At the N.R.S. Medical College Hospital Hakim Seikh
was registered, Registration No. 63649, but no time was mentioned. The
admission register of the said hospital shows that one patient was admitted at
12.15 A.M. on July 9, 1992 and another patient was admitted at 4.20 A.M. on
July 9, 1992. There could not have been any discharge during the odd hours i.e.
between the time when Hakim Seikh was taken to the said hospital and 4.20 A.M.
on July 9, 1992. If two other patients were admitted after Hakim Seikh was
taken there and it was not understandable why Hakim Seikh was not admitted
since it is not disputed that the condition of Hakim Seikh was grave. Even in
excess of the sanctioned beds some patients were kept on the trolley beds in
the morning and that even if it was dangerous to keep a patient with head
injuries on trolley bed he could very well be kept for the time being on the
floor and could be transferred to the cold ward, as the situation demanded,
temporarily.
The Emergency Medical Officer concerned should have taken
some measure to admit Hakim Seikh and he is, therefore, responsible for his
non-admission in the said Hospital.
The Superintendent of the hospital should have taken some
measures to give guidelines to the respective medical officers so that a
patient is not refused admission although his condition is grave and the
Superintendent of the N.R.S. Medical College is also, to some extent,
responsible in a general way.
(iii) Hakim Seikh should not have been refused admission
in the Medical College Hospital, Calcutta when the condition was so grave. In
not accommodating Hakim Seikh the
Emergency medical Officer of the said Hospital is
responsible. He should have contacted the superior authority over the telephone
if there was any stringency as to the beds available and admit the patient
inspite of total sanctioned beds not having been available. The Superintendent
should have given guidelines to the respective medical officers for admitting
serious cases under any circumstances and thus in a way the Superintendent was
responsible for this general administration.
(iv) At the National Medical College Hospital, Calcutta
the relevant admission register was missing and in the absence of the same the
responsibility could not be fixed on the Emergency Medical Officer concerned.
The then Superintendent of the Hospital must be held responsible for this
general state of affairs that no provision was made for admitting any patient
even if his condition was serious.
(v) The hospital authorities have submitted that Hakim
Seikh did not attend the Shambhu Nath Pandit Hospital at all. From the out-door
patient ticket it cannot be definitely said that Hakim Seikh was taken to the
said Hospital.
(vi) No responsibility could be fixed on any officer of
the Bangur Institute of Neurology because the said Institute does not deal with
neuro-surgery emergency cases and it is meant for cold cases only.
(vii) At SSKM Hospital, no record is maintained as to the
condition of the patient and the steps taken with regard to his treatment. It
is necessary that such record is maintained. Even though the patients inside
the ward were in excess of the limit of the sanctioned beds but still some
arrangements could be made and admission should not have been refused when the
condition was so grave.
The Emergency Medical Officer who attended Hakim Seikh
should be held responsible for not admitting the patient in the said Hospital
and that the Surgeon Superintendent is also in a general way responsible for
this unhappy state of affairs and he should have given specific guidelines in
that regard.
The Committee has suggested remedial measures to rule out
recurrence of such incidents in future and to ensure immediate medical
attention and treatment to patients in real need. We will advert to it later.
We will first examine whether the failure to provide medical treatment to Hakim
Seikh by the Government hospitals in Calcutta has resulted in violation of his
rights and, if so, to what relief he is entitled.
OBITER DICTA
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 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, 1983 (3) SCR 508
Nilabati Behara v. State of Orissa. 1993 (2) SCC 746: Consumer
Education and Research Centre v. Union of India, 1995 (3) SCC 42].
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 April 22, 1994. The
balance amount should be paid by respondent No. 1 to Hakim Seikh within one
month. We may now come to the remedial measures to rule out recurrence of such
incidents in future and to ensure immediate medical attention and treatment to
persons in real need. The Committee has made the following recommendations in
this regard :
(i)
The Primary
Health Centres should attend the patient and give proper medical aid, if
equipped. (ii) At the hospitals the emergency Medical Officer, in consultation
with the Specialist concerned on duty in the Emergency Department, should admit
a patient whose condition is moribund/serious. If necessary the patient
concerned may be kept on the floor or on the trolley beds and then loan can be
taken from the cold ward. Subsequent necessary adjustment should be made by the
hospital authorities by way of transfer/discharge. (iii) A Central Bed Bureau
should be set up which should be equipped with wireless or other communication
facilities to find out where a particular emergency patient can be accommodated
when a particular hospital finds itself absolutely helpless to admit a patient
because of physical limitations. In such cases the hospital concerned should
contact immediately the Central Bed Bureau which will communicate with the
other hospitals and decide in which hospital an emergency moribund/serious
patient is to be admitted. (iv) Some casualty hospitals or Traumatology Units
should be set up at some points on regional basis. (v) The intermediate group
of hospitals, viz., the district, the sub-division and the State General
Hospitals should be upgraded so that a patient in a serious condition may get
treatment locally.
The recommendations of the Committee
have been accepted by the State Government and memorandum dated August 22, 1995
has been issued wherein the following directions have been given for dealing
with patients approaching health centres/OPD/Emergency Departments of hospitals
: (1) Proper medical aid within the
scope of the equipments and facilities available at
Health Centres and Hospitals should be provided to such patients and proper
records of such aid provided should be preserved in office. The guiding
principle should be to see that no emergency patient is denied medical care.
All possibilities should be explored to accommodate emergency patients in
serious condition.
(2) Emergency Medical Officers will get in touch with Superintendent/Deputy
Superintendent/ Specialist Medical Officer for taking beds on loans from cold
wards for accommodating such patients as Extra-temporary measures.
(3) Superintendents of hospitals will issue regulatory
guidelines
for admitting such patients on internal adjustments
amongst
various wards and different kinds
of beds including cold beds and
Will hold regular weekly meetings
for monitoring and reviewing the
situation. A model of such
guidelines is enclosed with this
memorandum which may be suitably
amended before issue according to
local arrangements prevailing in
various establishments.
(4) If feasible, such patients
should be accommodated in trolley-
beds and, even, on the floor when
it is absolutely necessary during
the exercise towards internal
adjustments as referred to at (3)
above.
Having regard to the drawbacks in the system of
maintenance of admission registers of patients in the hospitals it has been
directed that the Superintendents and Medical Officers of the hospitals should
take the following actions to regularize the system with a view to avoiding
confusion in respect of Admission/Emergency Attendance Registers :
" (a) Clear recording of the name,
age, sex, address, disease of the
patient by the attending medical
officers;
b) Clear recording of date and time
of attendance/examination/admission
of the patient;
(c) Clear indication whether and
where the patient has been
admitted, transferred, referred:
(d) Safe custody of the Registers;
(e) Periodical inspection of the
arrangement by the Superintendent;
(f) Fixing of responsibility of
maintenance and safe custody of the
Registers."
With regard to identifying the individual medical officers
attending to the individual patient approaching Out Patients'
Department/Emergency Department of a hospital on the basis of consulting the
hospital records, it has been directed that the following procedure should be
followed in future :
"A. A copy of the Duty Roaster of
Medical Officers should be
preserved in the office of the
Superintendent incorporating the
modifications done for unavoidable
circumstances;
B. Each Department shall maintain a
register for recording the
signature of attending medical
officers denoting their arrival and
departure time;
C. The attending medical officer
shall write his full name clearly
and put his signature in the
treatment document;
D. The Superintendent of the
hospital shall keep all such
records in safe custody;
E. A copy of the ticket issued to
the patient should be maintained or
the relevant data in this regard
should be noted in an appropriate
record for future guidance.
It is appreciated that
Hospital Superintendent/Medical
Officers-in-charge may have
difficulty in implementing these
guidelines due to various
constraints at the ground level
and, as such, feed back is vital to
enable Government to refine and
modify the order as will ensure a
valid working plan to regulate
admission on a just basis. Detailed
comments and, therefore, requested
with constructive suggestions."
Shri Muralidhar, the learned counsel appearing for the
petitioners, and Shri Rajeev Dhavan, the learned senior counsel appearing for
the intervenors, in the course of their submissions, have, however, made
certain further suggestions in this regard.
Rajeev Dhavan : SUGGESTIONS
i.
Shri Dhavan has
submitted that in order to have proper and adequate emergency health services
and to create infra-structure for that purpose it is necessary to bear in mind
the high risk occasions such as festivals and high risk seasons when there is a
greater need for such services.
ii.
It has also
been submitted that the medical facilities available at the Primary Health
Centres should be upgraded and the hospitals at the district level should be
suitably provided to deal with serious cases and that the number of beds in the
hospitals should be increased to meet the growing needs of the population.
iii.
Shri Dhavan has
also suggested that a centralized ambulance service may be created for all the
hospitals and that the ambulance should have all the facilities necessary for
giving primary medical aid and treatment to the patient.
iv.
Shri Dhavan has
submitted that the emergency units at the hospital should be fully equipped to
manage all the emergency cases and the medical officer should be available
there round the clock.
v.
Shri Dhavan has
urged that the denial of treatment to a patient should be specifically made a
cognizable Offence and further it should also be made actionable as a tort.
US 'COBRA'
In this context Shri Dhavan has invited our attention to the recent
developments that have taken place in this field in the United States. There it
was found that private hospitals were turning away uninsured indigent persons
in need of urgent medical care and these patients were often transferred to, or
dumped on public hospitals and the resulting delay or denial of treatment had
sometimes disastrous consequences. To meet this situation the U.S.Congress has
enacted the Consolidated Omnibus Budget Reconciliation Act of 1986 [for short
'COBRA'] to prevent this practice of dumping of patients by private hospitals.
By the said Act all hospitals that receive medicare benefits and maintain
emergency rooms are required to perform two tasks before they may transfer or
discharge any individual; (i) the hospital must perform a medical screening
examination of all prospective patients, regardless of their ability to pay;
(ii) if the hospital determines that a patient suffers from an emergency
condition the law requires the hospital to stabilized that condition and the
hospital cannot transfer or discharge an unstabilized patient unless the
transfer or discharge an appropriate as defined by the statute. Provision is
made for imposing penalties against hospitals or physicians that negligently
violate COBRA. In addition the individual who suffers personal harm as a direct
result of a participating hospital's violation can bring a civil suit for
damages against that hospital. According to Shri Dhavan the standard of care in
emergency cases implies three obligations, viz. (i) screening the patient (ii)
stabilizing the patient's condition and (iii) transfer or discharge of the
patient for better treatment.
US 'COBRA' IN India
The submission of Shri Dhavan is that emergency health services in our country
must be provided keeping in view these three requirements. 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 August 22, 1995 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.
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, 1981 (1) SCC
627 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.
SUGGESTIONS TO OTHER STATE
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 August 22, 1995 and the
further directions given herein.
The Union of India is a party to these proceedings. Since
it is the joint obligation of the Centre as well as the States to provide
medical services it is expected that the Union of India would render the
necessary assistance in the improvement of the medical services in the country
on these lines.
As regards the medical officers who have been found to be
responsible for the lapse resulting in denial of immediate medical aid to Hakim
Seikh it is expected that the State Government will take appropriate
administrative action against those officers.
A copy of this judgment be sent for taking necessary
action to the Secretary Medical and Health Department of the States.
The writ petition is disposed of with these directions.
No order as to costs.
