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2011 DIGILAW 905 (GAU)

Asha Ghosh v. State of Tripura

2011-11-18

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. Heard Mr. P. Roy Barman, learned counsel for the petitioners as well Mr. A Ghosh, learned State Counsel. Thus writ petition has been filed by the wife and son of late Haridhan Ghosh, who died on 3.1.2000 while undergoing treatment in the hospital, namely GB Hospital, Agartala. According to the petitioners, the death of the deceased was because of the medical negligence on the part of the hospital authorities. 2. In paragraph 2 of the writ petition, it has been stated that the deceased Haridhan Ghosh had been suffering from Broncho Asthma and internal respiratory trouble. He was brought to GB hospital and admitted there at about 11.30 a.m. He was put on oxygen. Same was done after the wards' doctor visited the ward at around 11.15 a.m. It has been asserted that the patient was, not administered with any medicine and that even the oxygen cylinder was not functioning properly. It is the further assertion of the petitioners that because of such condition of the oxygen cylinder and non-administration of any medicine the condition of the deceased was deteriorating rapidly and he was suffering from serious uneasiness and other incidental troubles. The petitioner No. 2 enquired from the, attending nurses as to whether any medicine had been prescribed by the attending doctor or not, to which, her reply was in the negative. 3. In paragraph 3 of the writ petition, the petitioners have stated that the deceased died due to utter negligence and carelessness on the part of the staffs and doctors of GB hospital. According to the petitioners, the respondents failed to provide immediate care to the patient and also did not attend him though he was admitted in a very critical condition. It has been stated that although the attending nurse had told that no medicine had been prescribed at all but on checking the bed head ticket it was found that in fact medicine was prescribed about which, the petitioners were not made aware of. 4. With the above narration of fact, the petitioners have stated about lodging of complaint with the Director, Health Department, Government of Tripura and focusing of the incident in the local media. 4. With the above narration of fact, the petitioners have stated about lodging of complaint with the Director, Health Department, Government of Tripura and focusing of the incident in the local media. It has been stated that on the basis of the complaint lodged, the petitioner No. 2 was asked to appear before Director of Health, Government of Tripura and accordingly he appeared before the said Director on 24.1.2001. Upon such appearance, his statement was recorded. It is the case of the petitioners that since there was negligence on the part of the attending doctors and sister, they had been suspended from service. However, they were again reinstated without any enquiry in this regard. 5. It is in the aforesaid circumstances, the petitioners have filed this writ petition claiming compensation of Rs. 5,00,000/-. 6. The respondents have filed their counter affidavit denying the contentions raised in the writ petition. It has been stated that the deceased was admitted in the hospital on 3.1.2000 at about 11.30 a.m. having chronic obstructive pulmonary disease, Type-II respiratory failure with past history of I.H.D. The patient was examined by the attending doctors and oxygen inhalation was given to him for breathing. According to the respondents, the condition of the deceased was very precarious and at the time of bringing him to the hospital, he was in irreversible respiratory failure, hypoxic and cock stage. It has been asserted that in such a critical stage, very few patients could recover even in an advanced medical institution. Judging the situation, the attending doctors attended the deceased and prepared medical slip, bed head ticket etc. 7. As regards the plea of the petitioners that the particular medicine prescribed by the doctors was not allowed to be taken by the patients, it has been stated that even if the said medicine had been administered, the chances of survival of the patient was almost nil. It has further been stated even if the medicine prescribed by the doctors could have been administered instantaneously then also the same would not have saved his life. Regarding negligence on the part of the attending staff, it has been stated that the departmental proceeding was contemplated against them. 8. When the writ petition was entertained by order dated 15.6.2001, the Court had noticed the objection raised on behalf of the respondents about maintainability of the writ petition involving disputed questions of fact. 9. Mr. Regarding negligence on the part of the attending staff, it has been stated that the departmental proceeding was contemplated against them. 8. When the writ petition was entertained by order dated 15.6.2001, the Court had noticed the objection raised on behalf of the respondents about maintainability of the writ petition involving disputed questions of fact. 9. Mr. P. Roy Barman, learned counsel for the petitioners has submitted that on the face of it, medical negligence on the part of the respondents being discernible, the petitioners are entitled to receive compensation coupled with adequate direction to the respondents to take appropriate action against the erring doctors and staff of the hospital. As regards the maintainability of the writ petition, and admissibility of compensation, he has placed reliance in the following decisions: (2000) 4 SCC 543 , Tamil Nadu Electricity Board v. Sumathi; (1996) 4 SCC 37 , Paschim Bango Khet Mazdoor Samity v. State of W.B.; (1989) 4 SCC 286 , Pt. Parmanand Katara v. Union of India; (1987) 2 SCC 165 , Vincent Panikurlangara v. Union of India; (2001) 1 GLR 365, Haripada Saha v. State of Tripura; (1995) 3 SCC 42 , Consumer Educational Research Centre v. Union of India. 10. In Sumathi (supra), the Apex Court dealing with the question of maintainability of the writ petition under Article 226 of the Constitution of India, in the matter of tortuous liability, held that negligence of instrumentality or servant of State involving disputed questions of fact coupled with unequivocal denial of tortuous liability, the remedy under Article 226 may not be proper. However, it was pointed out that where there is negligence on the face of it, there would be no bar to proceed under Article 226. 11. In Paschim Banga Khet Mazdoor Samity (supra) the Apex Court was dealing with denial of emergency medical aid by Govt. hospitals. Noticing the conditions of the government hospitals, the Apex Court suggested for remedial measures and observed that the Govt. is duty bound to provide timely medical assistance to persons in serious condition. It was also observed that medical facility cannot be denied by Govt. hospitals to such patients on ground of non-availability of bed. 12. In Pt. Parmanand Katara (supra), the Apex Court reiterated the obligation of the state to provide immediate medical aid. 13. is duty bound to provide timely medical assistance to persons in serious condition. It was also observed that medical facility cannot be denied by Govt. hospitals to such patients on ground of non-availability of bed. 12. In Pt. Parmanand Katara (supra), the Apex Court reiterated the obligation of the state to provide immediate medical aid. 13. In Vincent Panikurlangara (supra), the Apex Court dealing with a PIL held that right to maintenance and improvement of public health falls under Article 21 of the Constitution of India. 14. In Haripada Saha (supra), a single judge of this Court directed payment of compensation of Rs. 60,000/- when it was found that upon cataract operation, the eyes of the petitioner were further damaged on account of infection in the hospital. In that case the finding of the Expert Committee indicated that such infection suffered by the petitioner was on account of negligence on the face of it. 15. In Consumer Education & Research Center (supra), the Apex Court dealing with Article 21 of the Constitution of India held that a wider meaning is required to be given to the concept, of right to life as envisage under Article 21 of the Constitution of India, so as to include right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. 16. There cannot be any quarrel with the propositions of law laid down in the aforesaid decisions but as has been held by the Apex Court in Ambica Quarry Works v. State of Gujarat, reported in AIR 1987 1073, ratio of any decision will have to be understood in the background of fact situation involved in each and every case. A ratio of any decision must be understood in background of the fact of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. (See Lord Halsbury in Quinn v. Leathern, 1901 AC 495). 17. In Sumathi (supra) itself the Apex Court has held that where there are disputed questions of fact with unequivocal denial of tortuous liability, seeking remedy under Article 226 may not be proper. In the present case, it goes without saying that disputed questions of facts are involved, noticing which, the question of maintainability of the writ petition was left open when the writ petition was entertained. 18. In the present case, it goes without saying that disputed questions of facts are involved, noticing which, the question of maintainability of the writ petition was left open when the writ petition was entertained. 18. As regards the assertion of the petitioner that the Oxygen cylinder was not properly functioning, it is the stand of the respondents that the oxygen cylinder was functioning properly when oxygen mask was put on the patient. It is true that there was some amount of confusion regarding administering medicine to the patient as was prescribed by the doctors. However, at the same time, it is the categorical stand of the respondents that even if it could be administered instantaneously then also, the deceased would not have survived. 19. As per the own showing of the petitioners, the deceased had been suffering from Bronco-Asthma and internal respiratory trouble because of which he had to be admitted in the hospital. In the counter-affidavit, the respondents have stated that the patient was admitted with chronic obstructive pulmonary deceased. Type-II respiratory failure with past history of I.H.D. It has also been stated that he was in irreversible respiratory failure, hypoxic and shock stage. 20. This Court exercising its power of judicial review under Article 226 of the Constitution of India cannot make a roving enquiry to find out the veracity or otherwise of the statements made by the parties. In absence of any definite material regarding criminal negligence on the part of the doctors and staff, this Court cannot pass any order towards payment of compensation, which will also has to be quantified on the basis of the facts. 21. This Court by order dated 26.9.2011 had directed personal appearance of the Director, Health & Family Welfare Department, Government of Tripura and the Superintendent of GB Hospital, Agartala, when there was failure on their part to produce the records. Learned counsel for the petitioners has produced the communication dated 6.9.2011 addressed to Mr. Samarjit Bhattacharjee, learned counsel of this Court by the State Public Information Officer, Directorate of Health Services, Tripura on the basis of the Right to Information Act, application filed so as to contend that information sought for was not furnished. By the said communication, it was conveyed that the records cannot be made available since the proceeding before this Court is pending including one police case. By the said communication, it was conveyed that the records cannot be made available since the proceeding before this Court is pending including one police case. It is not known as to under whose authorisation the learned counsel had sought for the information. Be that as it may this aspect of the matter need not detain us. 22. In terms of the aforesaid order, Sri Satya Ranjan Deb Barma, Director of Health Service, Govt. of Tripura and Sri Partha Sarathi Chakraborty, Medical Superintendent, G.B. Hospital are personally present today before this Court. On being asked why the records have not been produced they have stated that it being an old case of 2001 the records are not available. They-have stated that in spite of their best efforts, they could not trace out the records. 23. It is in the above context, learned counsel for the petitioner has submitted that there is negligence writ large on the face of it: According to him the records were necessary and on perusal of which this Court might have attributed guilt to the GB hospital doctors and staff. 24. Even if the records had been perused, this Court in absence of any expertise can not make a roving enquiry particularly when it is a case of denial of the liability on the part of the respondents. 25. In Kusum Sharma v. Batra Hospital and Medical Research Centre, reported in 2010 3 SCC 480 , the Apex Court dealing with the medical services and criminal negligence has held that a mere deviation from normal professional practice is not necessarily evidence of negligence. 26. Needless to say that Court has to be extremely careful to ensure that unnecessarily professionals are not harassed or they will not be able to carry out their professional duties without fear. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. In Privy Council in John Oni Akerely dealt with a case where a doc-for was accused of manslaughter, reckless and negligent act and he was convicted. In Privy Council in John Oni Akerely dealt with a case where a doc-for was accused of manslaughter, reckless and negligent act and he was convicted. His conviction was set aside by the House of Lords and it was held thus: (i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State. (ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a Court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation....There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime. (iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means of illustrations drawn from actual judicial opinion. The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck. In the said case, Their Lordships refused to accept the view that criminal negligence was proved merely because a number of persons were made gravely ill after receiving an injection of sobita from the appellant coupled with a finding that a high degree of care was not exercised. Their Lordships also refused to agree with the thought that merely because too strong a mixture was dispensed once and a number of persons were made gravely ill, a criminal degree of negligence was proved." 27. In the writ petition, the petitioners have not pointed out the doctors and staff, on whose alleged negligence the patient, died. The allegations are all general in nature to which there is complete denial on the part of the respondents about which detailed discussions have been made above. 28. In view of the above, I am of the considered opinion that the petitioners are not entitled to any relief in this writ petition by way of invoking public law remedy. The allegations are all general in nature to which there is complete denial on the part of the respondents about which detailed discussions have been made above. 28. In view of the above, I am of the considered opinion that the petitioners are not entitled to any relief in this writ petition by way of invoking public law remedy. However, I hasten to add that the petitioners may pursue private law remedy, if they are so advised. Writ petition is dismissed.