AUTHOR: INNAMA HAIDER (AMITY UNIVERSITY)
ABSTRACT / HEADNOTE
In this present case a appellant who was a radar technician who was serving with Indian Army Officer who were deployed at Indo-Pak border for Parakram Operation after tension heightened between India and Pakistan because of the attack on Indian Parliament (i.e. on 13 December 2001). The appellant who was facing weakness ,anorexia and high colored urine then advised by one of the physician for the blood transfusion . He was tested HIV positive in year 2014 after the blood transfusion at the Military Hospital in Samba takes place in the year 2002. When his health got deteriorates and he got admitted in one of the naval establish hospital in Mumbai in 2014 where he got to know about his HIV thing . The Supreme Court of India in case of Medical Negligence made both the IAF and Army Officers vicariously liable and ask for the compensation of Rs.1.55 crore to the appellant.
Keywords (Minimum 5): Medical negligence, compensation, guidelines, mental agony, vicarious liability, Supreme court, HIV Act
CASE DETAILS
| Judgement Cause Title | CPL Ashish Kumar Chauhan v. Commanding Officer |
| Case Number | CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 7175 OF 2021 |
| Judgement Date | 26/09/2023 |
| Court | Supreme Court of India |
| Quorum | Justice S Ravindra Bhat Justice Dipankar Datta |
| Author | S. Ravindra Bhat |
| Citation | 2023 LawSuit(SC) 948 |
| Legal Provisions Involved | Sections 14, 15, 16, 18, 19, and 20 of the HIV Act. |
INTRODUCTION AND BACKGROUND OF JUDGEMENT
The present case deals with ‘ law of negligence basically means when the doctor has not taken the standard of care a prudent professional would take in that circumstances according to the science available at that time , was not reasonable and careful during his acts . Medical negligence is always a complaint done by plaintiff and defendant or the respondent always have the burden of proof on himself .
In other words a doctor would never be negligent if whatever he has done was the act which should be done by high professionals. Our law has been advanced and should adopt the patient centric approaches and also the consent of medically stable person is very important in law for doing his treatment it can’t be denied that in present case where the situation in which transfusion took place was critical but it has to done accordingly.
Secondly there was also seen that the blood bank was not licensed the materials used for storing was they good or not
Thirdly it was not mentioned anywhere that what kind of markers were used to see the transfused blood and also this case shows about the mental agony , trauma , disdain the appellant faced
FACTS OF THE CASE
After the attack on Indian Parliament, (i.e., on 13 December 2001) the tension between the two countries heightened which led to Operation Parakram in 2002 . The appellant who was radar technician with the Indian Army Force were serving for the Operation Parakram on Indo -Pak border . There was a need of appellant and he got posted at Pathankot. Where he got sick and fell like, weakness and also his urine was high colored so he got admitted to the military hospital in Samba. Where then in an ongoing treatment one of the physician advised for blood transfusion where the military hospital did not have license for blood bank was not licensed but can be use by the Indian Army without consulting any of the experts and they didn’t tested the blood which was transfused with virus of HIV they did the transfusion and his reports were under the commanding officer But when the appellant health got deteriorate again and again firstly he was admitted in Gandhinagar in 2014 where HIV test reports were negative but there were some complications in his treatment so at first he shifted to Ahmedabad and then again on further deteriorate he was transferred to one of the hospital in Mumbai which was an Indian Naval establishment. Then in an undergoing test it came out that he was suffering from HIV .(Human Immunodeficiency Virus) .
By knowing about the detection of HIV virus first medical board held in 2014 but which says that the infection of HIV was made – non attributable to the service . On being dissatisfied with the decision he by doing certain past analysis the appellant remembered about where his blood transfusion got placed, so then he started to do the research about that military hospital in Samba of 2002 but he didn’t got any information as an evidence because the staff denied by saying unavailability of that account.
Then again in 2015 in Ahmedabad he got hospitalized so when one of the respondent on the request of appellant wrote the letter to Indian Army about the appellant’s report of 2002 transfusion so it came out in his medical reports that the transfusion was done , but the blood which got transfused it’s test report were being absent .
Afterwards when the medical board was held in 2014 and 2015 in which it was said that the appellant disability was attributable to the service and also the appellant alleges that a condition was insisted upon him to sign on the proceedings of the release medical board and also he was not given his medical records despite it was essential for his treatment
In Addition the appellant was denied many more things such as extension and was discharged from services was denied ECHS card further 15000 got deducted from his dues owed to him post retirement in ECHS card’s absence and for the ongoing treatment. He was also been denied of his disability certificate.
A series of directions to the central and state Governments to frame guidelines relationg to diagnostic facilities diagnostic facilities, Antiretroviral therapy and opportunistic Infection Management, and welfare schemes for the people affected by HIV/AIDS.
LEGAL ISSUES RAISED
- Whether the consent of the appellant was taken before the blood transfusion?
- Whether the risks were disclosed and whether the appellant consented to those risk?
- Whether the blood test was done before the blood transfusion?
- Whether the fundamental rights to his health were violated?
- Whether his bodily integrity was compromised?
- Whether it was state’s responsibility to protect the well-being of his military personnel?
- Whether the Court of Inquiry was biased ?
PETITIONER/ APPELLANT’S ARGUMENTS
- The learned counsel stated that the onus of proof is on the respondents which is Indian Army Force and Army Officers that the staff in the military hospital was negligent
- The learned counsel also stated about one of the respondent stated this in writing that the blood bank was not authorized or licensed to use
- The appellant also referred to RTI where he came to know that there was no expert of transfusion available and also there were no test reports
- The learned counsel also stated that the respondent failed to give any material evidence such as blood that has been transfused to appellant and also was it tested
- And also it stated that before any transfusion take place a test of ELISA is important for HIV negative patient about which they don’t have any report . and also if the standard care has taken or not.
- Also the learned counsel stated that no written consent or signature has been taken of respondent before the transfusion , also when the negative report of HIV came it can’t be confirmed whether it was true or a fraud because the report of negative HIV came after seven days without ant proper procedure. And also when it was accused on the appellant that he concealed he argued that it was in respondent’s possession and appellant was denied taking it .
- It was also further argued that him being HIV positive he lost his job in the Indian Air Force and when employed in Food Corporation then again lose his job because of this then became a divorcee and lost his family.
- The learned counsel along with the appellant also argued that no proper care was taken while the transfusion and also it was contended that the court should give all the monetary relief and other compensations.
- Also it was argued that the appellant present condition is of dependency on a supporter because of the facts that he was denied his medical copies he was not ask for a consent before his transfusion which leads him to a situation of mental agony for what compensation should be warranted
- Also it was argued about the respondent’s attitude towards the appellant was not according to the applicable rules which eroded his confidence and therefore court should issue suitable directions and also to continue with medical treatment.
RESPONDENT’S ARGUMENTS
- It was argued that once the respondent side admitted that whatever the disability was faced by appellant was because of respondents side no further deliberation was needed .
- It was also further argued that only for surgical treatment the consent is needed and transfusion is not one of them .
- It was also been argued that the appellant was having anaemia before his transfusion and anaemia being one of the reason of HIV which means he didn’t knew that if HIV was because of the transfusion and not because of any other source.
- It was also further argued that no interference was done by respondent’s to the appellant reports and also they don’t have to preserve appellant reports for more than a period of 3 years according to IMC Professional Conduct even also the military hospital where the transfusion took place was not permanent.
- It was also argued that the appellant was wrong in blaming the respondents because of his divorce which is mutual consent of both the parties.
- And also it was no where shown even on the affidavits of IAF that he was being discharged of his duties.
RELATED LEGAL PROVISIONS
- “Under Section 14 (1) of the HIV Act, the measures to be taken by the Central Government and all the State Government are, to provide, (as far as possible), diagnostic facilities relating to HIV or AIDS, Antiretroviral therapy and Opportunistic Infection Management to people living with HIV or AIDS”
- “Under Section 15 (1) & (2) of the HIV Act, the Central government and every State Government shall take measures to facilitate better access to welfare schemes to persons infected or affected by HIV or AIDS. Both the Central and State Governments shall frame schemes to address the needs of all protected persons.”
- “Under Section 16 (1) of the HIV Act, the Central and all the State Governments, shall take appropriate steps to protect the property of children affected by HIV or AIDS. By reason of Section 16 (2) of the HIV Act, the parents or guardians of children affected by HIV and AIDS, or any person acting for protecting their interest, or a child affected by HIV and AIDS may approach the Child Welfare Committee [within the meaning of that expression under Section 29 of the Juvenile Justice (Care and Protection of Children) Act, 2000] for the safe keeping and deposit of documents related to the property rights of such child or to make complaints relating to such child being dispossessed or actual dispossession or trespass into such child’s house”
- “The Central Government shall formulate guidelines [under Section 18(1) of the HIV Act] for care, support and treatment of children infected with HIV or AIDS; in particular, having regard to Section 18 (2) “notwithstanding anything contained in any other law for the time being in force”, the Central Government, or the State governments shall take active measures to counsel and provide information regarding the outcome of pregnancy and HIV- related treatment to the HIV infected women. “
- “The Central Government shall also notify HIV and AIDS policy for establishments in terms of Section 12 of the HIV Act. It is further directed that under Section 19 of the HIV Act, every establishment, engaged in the healthcare services and every such other establishment where there is a significant risk of occupational exposure to HIV, for the purpose of ensuring safe working environment, shall (i) provide, in accordance with the guidelines, firstly, universal precautions to all persons working in such establishment who may be occupationally exposed to HIV; and secondly training for the use of such universal precautions; thirdly post exposure prophylaxis to all persons working in such establishment who may be occupationally exposed to HIV or AIDS; and (ii) inform and educate all persons working in the establishment of the availability of universal precautions and post exposure prophylaxis.”
- “By reason of Section 20 (1) of the HIV Act, the provisions of Chapter VIII of the HIV Act apply to all establishments consisting of one hundred or more persons, whether as an employee or officer or member or director or trustee or manager, as the case may be. “
- “In keeping with proviso to Section 20 (1) of the HIV Act, in the case of healthcare establishments, the said provision shall have the effect as if for the words “one hundred or more”, the words “twenty or more” were substituted.”
- “Every person who is in charge of an establishment, mentioned in Section 20 (1) of the HIV Act, for the conduct of the activities of such establishment, shall ensure compliance of the provisions of the HIV Act. Every establishment referred to in Section 20 (1) of the HIV Act has to designate someone, as the Complaints Officer who shall dispose of complaints of violations of the provisions of the HIV Act in the establishment, in such manner and within such time as may be prescribed. The rules in this regard may be formulated by the Central Government at the earliest, preferably within a week”.
JUDGEMENT
Ratio Decidendi
- The hon’ble supreme court ordered to issue the guidelines for Central and State government regarding HIV , welfare schemes and infection management and also to grant compensation of 1.55 crore thousand to the appellant from IAF and Army officers who are vicariously liable for their act of medical negligent and also to compensate for the medical agony caused to the appellant. It was seen that when the appellant was suffering from amenia from starting and also he asked for his medical reports when one of the respondent mailed to IAF and ask commanding officer to give the report as per the request of the appellant in which it was the report of the test of the “blood” which got transfused was absent .
- Also it is stated in the guidelines of HIV that how much the consent of the person is important for HIV testing.
- Medical negligence was done as appellant’s case not deal with any experts
- Reliance was also placed on the medical reports which came in Ahmedabad and was HIV negative
- The facts of the case also constraints the jurisdiction of courts under A 32 and A.226
CONCLUSION & COMMENTS
Whatever the mental agony was suffered by the appellant because of the denial of the reports and because of his condition is respondent fault and for that appellant should be compensated but whatever the pre retirement was and the personal issues was of appellant like divorce with wife and losing the job in the food corporation was not reasons for which the respondent should be compensated for .
Further it was also seen that when the appellant lost hi job , then the IAF could do something regarding that but all these lead to the increase of mental agony of the appellant for which he should be compensated 50 lakhs rupees
In addition to the mental agony there was also medical negligence for which both the Indian Air force and Indian Army are vicariously liable because it can’t be pinpointed who was individually liable and for this negligence it was ordered by court that the appellant should be compensated for 1 crore 54 lakh 73 thousand rupees within six weeks and also the disability pension too should be disbursed to appellant within six weeks and also the anti – retroviral therapy to the people living with aids
The central and state government issued guidelines regarding the management facilities, anti – retroviral therapy measures and also property protection to the children who’s parents are suffering with HIV , welfare scheme should be adopted
All these measures should be taken within 3 months through dissemination of information through media press etc and also there should be expert’s hired regarding the same and the programmes should be spread accordingly education should be provided which should not be discriminated.
REFERENCES
Important Cases Referred
Smt. Savita Garg vs. The Director, National Heart Institute
Fakruddin versus Principal
Pani Ram vs. Union of India
C. Laxman Thamappa Kotgiri
Important Statutes Referred
Section 58 of the Indian Evidence Act, 1872
Section 135 of the Army Act, 1950
Article 14 of Indian Constitution
Articles 32 and 226 of Indian Consitution
Other References
https://www.advocatekhoj.com/library/judgments/announcement.php?WID=16824
