The patient has suffered at the hands of the Government Hospital Authorities namely Government Medical College Hospital Nagercoil due to negligence. The said fact is not in dispute. Hence, the State is bound to give proper treatment to the patient at its costs.
The Right of self preservation of one's life and full medical treatment to all is guaranteed under Article 21 of the Constitution of India. In the decision reported in (1996) 2 Supreme Court Cases 336 (Surjit Singh v. State of Punjab) in paragraph 11 it is held thus:
It is otherwise important to bear in mind that self-preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self- preservation has a species in the right of self-defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognised it.
It is ultimately for the Court to decide, as parens patriae, as to what is in the best interest of the patient, though the wishes of close relatives and next friend, and the opinion of medical practitioners should be given due weight in coming to its decision. As stated by Balcombe, J. in J. (A Minor) (Wardship : Medical Treatment), In re, (1990) 3 ALL ER 930 (CA), the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do. The parens patriae (father of the country) jurisdiction was the jurisdiction of the Crown, which, as stated in Airedale N.H.S. Trust v. Bland, 1993 AC 789 could be traced to the 13th century. This principle laid down that as the Sovereign it was the duty of the King to protect the person and property of those who were unable to protect themselves. The Court, as a wing of the State, has inherited the parens patriae jurisdiction which formerly belonged to the King." Though the said case is relating to the issue of 'Right to die'/mercy killing the principle stated in the said case can be applied to the facts of this case
Madras High Court
The Secretary To Government vs S.Ganesan on 10 February, 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTThis Writ Appeal is filed against the common order of the learned Single Judge, made in M.P.(MD) Nos.1 and 2 of 2012 in W.P.(MD) No.7482 of 2011 dated 01.02.2012.
2. In M.P.(MD) No.1 of 2012, the respondent herein prayed for a direction to the appellants herein to pay the respondent and his children a sum of Rs.5,00,000/- as interim compensation for the sufferings and in M.P.(MD) No.2 of 2012, the respondent has prayed for transferring the petitioner's wife from the Government Rajaji Hospital to Appollo Speciality Hospital, Madurai or any other Speciality Hospital and the appellants herein may be directed to bear all the expenses incurred in giving treatment to the respondent's wife. Direction was issued in M.P.(MD) No.2 of 2012 and post on 01.03.2012 for further orders and being aggrieved by the same, this Writ Appeal is preferred.
3. In the main writ petition the petitioner/ respondent has prayed for direction to the 1st appellant Government of Tamil Nadu to initiate stringent departmental action and penal action against the 3rd appellant hospital officials Government Medical College Hospital, Nagercoil and gas agency who are responsible for the unconscious coma condition of the respondent's wife namely Rukmani from 19.03.2011 now undergoing treatment in Intensive Care Unit, Government Rajaji Hospital, Madurai and to pay compensation to the respondent herein and legal heirs of the respondent for their sufferings and irreparable loss consequent to the lethargic and highly negligent act on the part of the officials working in Respondent No.3 hospital. The third respondent filed counter affidavit in the Writ Petition.
4. The learned Judge noticed the following submissions of the respective counsel that the respondent's wife namely Rukmani was admitted in Government Medical College Hospital, Nagercoil on 18.03.2011 to undergo family planning operation and on 19.03.2011, she suffered heavy blood loss and at about 10.30 a.m., she was taken to the Operation Theatre and at about 12.00 noon, she was taken to the Intensive Care Unit in an unconscious condition and the fact that the Medical Officers, Nursing Staff and the Para-Medical Staff failed to disclose the factors that really contributed for the deteriorating health condition and that the petitioner's wife was administered Nitrous Oxide instead of Oxygen, which resulted in heavy blood loss and neuro complaints.
5. The learned Judge also found that the wife of the respondent was kept in the Respiratory Care Unit of Government Rajaji Hospital, Madurai with effect from 12.04.2011 and taking note of the treatment and as there was no improvement of the health condition of the respondent's wife for the past 11 months, accepted the submissions made by the learned counsel for the respondent to provide better treatment to the wife of the respondent. The learned Judge also took notice of the submissions that the respondent cannot offer to give costly medicine by admitting the patient in a Super Speciality Hospital and also the fact that the patient requires neuro rehabilitation and general medical care for life long.
6. Accepting the said submissions and relying on the judgments of the Hon'ble Supreme Court, the learned Single Judge thought it fit to give a direction to admit the patient in a Super Speciality Hospital, so that her life could be saved bearing in mind the difficulty in getting the life saving medicines at Government Rajaji Hospital, Madurai and also the suggestions made by the learned counsel for the petitioner that Christian Medical College Hospital at Vellore got a well equipped Department of Neurology under the able leadership of Dr.Mathew Alexander, who is an internationally famous Neurologist, gave direction to the appellants to admit the patient for better treatment.
7. It was also ordered that the Director, Christian Medical College Hospital, Vellore to report to this Court on or before 1st March, 2011 indicating the treatments given and the condition of the patient and the opinion of the concerned experts with respect to the treatments to be given and the scope for recovery. One Dr.Suranjan Bhatacharia, Dean of the Medical Faculty and Director, Christian Medical College was also requested to bestow his personal attention in this matter. It is also ordered in that order, since constant attention is required, the respondent herein and one female member of their family have to stay in the hospital, the Director, Christian Medical College Hospital, Vellore was requested to give accommodation to the respondent and the other attending persons considering their plight. The State was directed to bear the entire expenses for the treatment and posted the Miscellaneous Applications on 01.03.2012.
8. The said direction are challenged in this Writ Appeal on the ground that there is medical facility available in Government Rajaji Hospital, Madurai and even if it is not available, the patient can be given treatment in Rajiv Gandhi Government Hospital, Chennai, so that the expenses to be met by the Government can be minimized.
9. The learned Additional Advocate General submits that if the Specialist Doctor, namely, Dr.Mathew Alexander is to give treatment to the patient he can be invited to Government Rajaji Hospital, Madurai for his opinion for further treatment.
10. On the other hand, the learned counsel for the respondent submitted that in Government Rajaji Hospital, Madurai, all facilities are not available and the respondent is finding difficulties to purchase medicines and there is no improvement to the patient's condition for the past about 11 months, inspite of the treatment given in the Government Rajaji Hospital, Madurai. The learned counsel also submitted that the respondent is hoping that if the patient is admitted in Christian Medical College Hospital, Vellore and the patient is treated by Dr.Mathew Alexander or under his supervision with the facilities available in Christian Medical College Hospital, Vellore the condition of the patient will be improved and there is possibility of complete recovery and prayed for dismissal of this Writ Appeal.
11. We have considered the rival submissions. The issues arose for consideration are whether a patient, who is the wife of the respondent suffered at the hands of the Government Hospital is entitled to seek for giving specialised treatment of her husband's choice at the costs of the State Government? and whether the Government is justified in opposing the plea on the ground of minimizing expenses?
12. The treatment given to the patient when she was admitted in Government Medical College Hospital, Nagercoil is stated in the counter affidavit filed by the dean of Government Medical College Hospital, Nagercoil in paragraphs 2 to 6, which reads as follows:
"2. It is humbly submitted that Mrs.Ruckmani wife of the Petitioner was admitted in the 3rd Respondent Hospital on 18.03.2011 for Medical Termination of Pregnancy with Laparoscopic Sterilization after anesthetic assessment. On 19.03.2011 as a part of Procedure T.Misoprestol was kept vaginally which led to cervical dilation. When she was about to be taken to the Operation Theatre, she started to bleed vaginally, which some times is a usual course and immediately Intra venous fluids started and subsequently patient was taken to operation theatre at about 10.30 a.m. and in the operation theatre anesthetist treated the patient. As evacuation and curettage is the only option to stop bleeding, it was done under I.V. anaesthesia.
3. It is humbly submitted that, during the procedure, OXYGEN (Central Oxygen Supply) pressure in the flow meter reduced, So, anesthetist opened Oxygen cylinder (287717) in Boyles machine (already checked for pressure and availability) After that he found Oxygen saturation in the pulse oximeter decreasing. Even after ventilation the SPO2 (Oxygen saturation) didn't increase so he called for help. Chief anesthetist who was nearby came and attended. For the benefit of doubt they have changed the Oxygen cylinder to the Boyles machine and ventilated her. Oxygen saturation increased.
4. It is humbly submitted that, Meanwhile the Obstetrician completed the Medical Termination of Pregnancy procedure, the Patient was shifted to ICU/OG and connected to ventilator as the patient was unconscious. Critical care management was started and clinical condition of the Patient was explained to the patient's relative. Neuro physician opinion was obtained and a diagnosis of Hypoxic Encephalopathy with Brainstem dysfunction was made and all the relevant drugs were given and the Patient was constantly monitored. After improvement in the clinical status, ventilary support and Ryles tube feeding was started. As she had started to develop complication like Deep Vein Thrombosis and hyponatremia patient was referred to Madurai Government Rajaji Hospital as Vascular surgeon and Nephrologists along with other specialists were available. After explaining the same to the petitioner and getting consent, the Patient was shifted to Rajaji Government Hospital - Madurai with full fledged medical team (Doctors and para Medical Staff) in a sophisticated ambulance and now the patient is on continuous treatment.
5. It is humbly submitted that, the best care is taken and medical management is given to the patient and Doctors are not at all negligent on any aspect in this case. Moreover since they had the suspicion over the contents of Oxygen Cylinder it was sent to Forensic Lab, Chennai for chemical analysis on 21.03.2011 and the report was obtained on 07.04.2011. It was NITROUS OXIDE. All the above events were informed to higher authority. After getting a report from Forensic Lab, since the basic fault was with Gas - Company who undertake filling of cylinders and filling NITROUS OXIDE in the said OXYGEN Cylinder has led to all problems, Complaint was made before the Superintendent of Police on 21.04.2011, in Cr.No.158/2011, U/s.284, 337, 338, IPC.
6. It is humbly submitted that, while treating this patient in Kanyakumari Govt. Medical College Hospital expert opinion was obtained from specialists at Tirunelveli Medical College Hospital and their instructions were followed. Moreover it is submitted that due to timely intervention of our anesthetic team, life of the patient Mrs.Ruckmani is saved and further catastrophe to other patients is prevented by not using that cylinder to other patients."
13. The patient has suffered at the hands of the Government Hospital Authorities namely Government Medical College Hospital Nagercoil due to negligence. The said fact is not in dispute. Hence, the State is bound to give proper treatment to the patient at its costs. The learned Additional Advocate General is not disputing the fact that Dr.Mathew Alexander of Christian Medical College Hospital, Vellore, is a Neurologist of international repute.
14. The Right of self preservation of one's life and full medical treatment to all is guaranteed under Article 21 of the Constitution of India. In the decision reported in (1996) 2 Supreme Court Cases 336 (Surjit Singh v. State of Punjab) in paragraph 11 it is held thus:
"11. It is otherwise important to bear in mind that self-preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self- preservation has a species in the right of self-defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognised it."
15. The learned Judge also relied on the following judgments of the Hon'ble Supreme Court to arrive at his decision.
(i) In PT.PARMANAND KATARA v. UNION of INDIA [1989(4) SCC 286], in paragraph No.8 it is held thus:
"8. Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiterated with gradually increasing emphasis that position. A doctor at the government hospital positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way ...." (ii) In CHAMELI SINGH V. STATE OF U.P.[1996 (2) SCC 549], in paragraph No.8 it is held thus:
"8. In any organized society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basis human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights........."
16. The state while pleading for retaining the patient in Government Rajaji Hospital, Madurai is failing to realize the fact that the patient is in hospital for the past about 11 months without any improvement in health and the Christian Medical College Hospital, Velore is having all facilities to treat the patient from a reputed Neurologist. Thus the respondent is justified in his request, which was ordered by the learned Judge considering the facts and circumstances of this case.
17. The contention of the learned Additional Advocate General is that if the patient is treated at Government Hospital, the expenses may be minimized is untenable as the respondent feels that his wife will be in a position to recover her health if she is treated at Christian Medical College Hospital, Vellore. The best interest of the patient can be decided by parents, spouse and other close relatives in normal circumstances and if there is no hope the appropriate person can approach this Court which will decide what is the best interest of the patient bearing in mind the wishes of close relative and next friend and the opinion of the medical practitioners as a parent. The said principle is explained by the Hon'ble Supreme Court in a case relating to the issue of 'Right to die'/mercy killing in the decision reported in 2011 (4) SCC 454 (ARUNA RAMACHANDRA SHANBAUG V. UNION OF INDIA). In paragraphs 85 and 86 it is held thus:
"85. The question, however, remains as to who is to decide what is the patient's best interest where he is in a persistent vegetative state (PVS)? Most decisions have held that the decision of the parents, spouse, or other close relative, should carry weight if it is an informed one, but it is not decisive (several of these decisions have been referred to in Chapter IV of the 196th Report of the Law Commission of India on Medical Treatment to Terminally III Patients).
86. It is ultimately for the Court to decide, as parens patriae, as to what is in the best interest of the patient, though the wishes of close relatives and next friend, and the opinion of medical practitioners should be given due weight in coming to its decision. As stated by Balcombe, J. in J. (A Minor) (Wardship : Medical Treatment), In re, (1990) 3 ALL ER 930 (CA), the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do. The parens patriae (father of the country) jurisdiction was the jurisdiction of the Crown, which, as stated in Airedale N.H.S. Trust v. Bland, 1993 AC 789 could be traced to the 13th century. This principle laid down that as the Sovereign it was the duty of the King to protect the person and property of those who were unable to protect themselves. The Court, as a wing of the State, has inherited the parens patriae jurisdiction which formerly belonged to the King." Though the said case is relating to the issue of 'Right to die'/mercy killing the principle stated in the said case can be applied to the facts of this case. Further, the Christian Medical College, Vellore is one of the approved hospital by Government of Tamil Nadu to take treatment by Government Servants, who are covered under the Tamil Nadu Health Fund Scheme as well as the insurance Scheme, enabling the employees to claim medical reimbursement.
18. Two of the cardinal principles of medical ethics are patient autonomy and beneficence. The same is extracted in the judgment reported in (2011) 4 Supreme Court Cases 454 (ARUNA RAMACHANDRA SHANBAUG V. UNION OF INDIA. In paragraph No.12, the Hon'ble Supreme Court has held thus:
1. Autonomy means the right to self-determination, where the informed patient has a right to choose the manner of his treatment. To be autonomous, the patient should be competent to make decisions and choices. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a living will OR the wishes of surrogates acting on his behalf (substituted judgment) are to be respected.
The surrogate is expected to represent what the patient may have decided had he/she been competent, or to act in the patient's best interest. It is expected that a surrogate acting in the patient's best interest follows a course of action because it is best for the patient, and is not influenced by personal convictions, motives or other considerations." Thus it is manifest that no doctor or any hospital can compel a person to get permission from him or from the particular hospital and autonomy of the patient to choose the manner of treatment and if the patient is incompetent to make a decision and choice his surrogate is expected to represent and to decide, bearing in mind the best interest of the patient. The respondent herein, who is the husband of the patient, who is incompetent to make a choice, has taken a decision to treat his wife in a hospital of his choice based on sound reason and denying the said right to the respondent is contrary to medical ethics also.
19. Thus, the direction issued by the learned Judge to shift the patient to Christian Medical College Hospital at Vellore as per the wish of the respondent ie., spouse of the patient by order dated 01.02.2012 is just and proper and no interference is called for in the Writ Appeal.
20. The learned Additional Advocate General submitted that in paragraph 25 of the order of the learned Judge, it is stated that the respondent herein and a female member of the family and other attending persons are to be allowed to stay at the expenses of the State which needs modification.
21. The patient i.e. the wife of the respondent is in coma stage, who is in need of constant attention. The respondent cannot attend the patient at all times and minimum three persons must be allowed to stay. The respondent and the patient are having two minor school going children, they may occasionally visit the hospital to see their parents as their mother is the patient and father is attending the patient. Therefore, the authorities of the Christian Medical College Hospital, Vellore is directed to give accommodation to maximum of three persons at a time and also permit the minor children of the respondent and patient to visit and stay in the hospital as and when required. In all other respects, the order of the learned single Judge is confirmed.
22. The Writ Appeal is disposed of accordingly. No costs. Consequently, connected M.P.(MD) No.1 of 2012 is closed.
sj
No comments:
Post a Comment