Maria Zacharia and K.M. Thomas v. Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **TUESDAY, THE 25TH DAY OF NOVEMBER 2014/4TH AGRAHAYANA, 1936** ## **WP(C).No. 16901 of 2008 (K)** **----------------------------** **PETITIONERS:** **--------------------** **1. MRS.MARIA ZACHARIA, W/O. K.M. THOMAS, AGED 47 YEARS, KOORUMULLUMTHADATHIL HOUSE, KANAKKARY P.O., KOTTAYAM. REP. BY 2ND PETITIONER MR.K.M.THOMAS** **2. K.M.THOMAS, S/O.K.T. MATHEW, AGED 48, KOORUMULLUMTHADATHIL HOUSE, KANAKKARY P.O., KOTTAYAM.** ## **BY ADV. SRI.C.C.PADMAKUMAR** **RESPONDENTS:** **-----------------------** **1. UNION OF INDIA AND OTHERS REPRESENTED BY THE DEFENCE SECRETARY, MINISTRY OF DEFENCE, GOVERNMENT OF INDIA, NEW DELHI-110001** **2. THE CHIEF OF ARMY STAFF, SENA BHAVAN, ARMY HEAD QUARTERS, NEW DELHI** **3. THE DIRECTOR GENERAL OF ARMED MEDICAL SERVICES (ARMY), SENA BHAVAN, DELHI** **4. DIRECTOR GENERAL OF MEDICAL SERVICE (NAVY), SENA BHAVAN, NEW DELHI** **5. DIRECTOR GENERAL OF MEDICAL SERVICES (AIRFORCES), AIR HEAD QUARTERS, DELHI** **6. THE ADJUTANT GENERAL, A.G.BRANCH, ARMY HEAD QUARTERS, SENA BHAVAN, NEW DELHI.** **WP(C).No. 16901 of 2008 (K)** **-2-** **7. THE COMMANDANT, COMMAND HOSPITAL, SOUTHERN COMMAND HOSPITAL, PUNE.** **8. THE COMMANDANT, COMMAND AIRFORCE HOSPITAL, BANGALORE.** **9. THE FLAG OFFICER, COMMANDING-IN-CHIEF, HEAD QUARTER, SOUTHERN NAVAL COMMAND, KOCHI** **10. ALOKE BANERJEE, COMMANDING OFFICER, INHS SANJIVANI, NAVAL BASE, KOCHI.** **11. LT.COL.H.C.PATHAK, COMMAND AIRFORCE HOSPITAL, SOUTHERN COMMAND, BANGLORE.** ***12. THE SECRETARY, MINISTRY OF DEFENCE (FINANCE), NEW DELHI** **R1-R9 BY ADV. SRI.K.M. JAMALUDHEEN, CGSC.** ***[R12 IS IMPLEADED AS PER ORDER DATED 27-03-2009 IN IA No.4294/2009]** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMG** ## W.P (C.) No.16901/2008. ## **APPENDIX** ## **PETITIONERS' EXHIBITS** EXT- P1TRUE COPY OF THE LETTER DATED 13-12-007 ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER. EXT- P2TRUE COPY OF THE PRESCRIPTION OF MEDICINE DATED NIL ADVISED BY THE SPECIALIST OF 10TH RESPONDENT. EXT- P3TRUE COPY OF THE PRESCRIPTION OF MEDICINE DATED 10-05-2004 ISSUED BY THE 10TH RESPONDENT. EXT- P4TRUE COPY OF THE SIQ FROM DATED 25-05-2004 IN THE NAME OF 1ST PETITIONER. EXT- P5TRUE COPY OF THE PRESCRIPTION OF MEDICINE DATED 26-05-2004 ISSUED BY THE 10TH RESPONDENT. EXT- P6TRUE COPY OF THE HOSPITAL DISCHARGE SLIP DATED 02-06-2004 ISSUED BY THE 10TH RESPONDENT. EXT- P7TRUE COPY OF THE STATEMENT DATED 17-06-2004 WRITTEN BY 1ST PETITIONER. EXT- P8TRUE COPY OF THE HOSPITAL DISCHARGE SLIP DATED 26-06-2004 ISSUED TO THE 2ND PETITIONER. EXT- P9TRUE COPY OF THE HOSPITAL DISCHARGE SLIP DATED 26-06-2004 ISSUED TO THE 1ST PETITIONER. EXT- P10TRUE COPY OF THE OPINION DATED 04-11-2004 TO INVALIDATED OUT SERVICE OF 1ST PETITIONER'S SERVICE EXT- P11TRUE COPY OF THE REPRESENTATION DATED 26-11-2004 BY THE 2ND PETITIONER TO 2ND RESPONDENT. EXT- P12TRUE COPY OF THE APPEAL DATED 04-01-2005 SUBMITTED BY 2ND PETITIONER TO 2ND RESPONDENT. EXT- P13TRUE COPY OF THE JUDGMENT DATED 06-03-2006 IN WPC No.37772/2004. EXT- P14TRUE COPY OF THE SPEAKING ORDER DATED 08-08-2006. EXT- P15TRUE COPY OF THE OPINION DATED 30-10-2006 ISSUED TO THE 1ST PETITIONER. W.P (C.) No.16901/2008. -2- EXT- P16TRUE COPY OF THE RECEIPT DATED 30-04-2008 TOWARDS PAYMENT OF MONTHLY SALARY TO THE SERVANT. EXT- P17TRUE COPY OF THE RECEIPT DATED 30-04-2008 TOWARDS THE NURSING CARE CHARGE FOR THE MONTH OF APRIL,2008. EXT- P18TRUE COPY OF THE ARMY SERVICE CERTIFICATE DATED 23-11-2007. EXT- P19TRUE COPY OF THE AMENDED PENSION PAYMENT ORDER DATED 10-12-2007. ## RESPONDENTS' EXHIBITS NIL True copy P.A. To Judge AMG ## **C.K. ABDUL REHIM, J.** ------------------------------------------------- ## **W.P.(c) No. 16901 OF 2008-K** ------------------------------------------------DATED THIS THE 25[th] DAY OF NOVEMBER, 2014. ## **J U D G M E N T** Petitioners 1 & 2 are wife and the husband, respectively. It is stated that the 1[st] petitioner is 100% disabled and therefore she is represented by the 2[nd] petitioner. Relief sought for in this writ petition is to direct the 1[st] respondent-Union Government to pay compensation of Rupees One Crore to the petitioners. It is noticed that this writ petition was once transferred to the Armed Forces Tribunal, Regional Bench, Kochi. But by virtue of order passed by the said Tribunal on 07-09-2010, the matter was sent back to this court for consideration, observing that, since the petitioners are claiming compensation from the 1[st] respondent on the ground of violation of fundamental rights and on the ground that she was not provided with proper treatment, those issues cannot be considered by the said Tribunal. Hence the writ petition is heard and disposed of by this court. ## **W.P.(c) No. 16901/2008** -2- 2. Brief history of the case is as follows. The 1[st] petitioner was working as Lieutenant Colonel in the Military Nursing Service at I.N.H.S, Sanjeevani, Navel Base, Kochi. While so she developed chronic headache for which she had reported before the Medical Inspection Room (MI Room) on 02-03-2004. The duty doctor in-charge of MI Room advised certain tablets. But the headache persisted and on the subsequent dates also she was advised medicines by the doctor in-charge at the MI Room. Thereafter she met respondents 9 & 10 who also advised her to take tablets. It is complained that, despite taking medicines prescribed, the headache persisted. The respondents 9 and 10 have failed to advice the 1[st] petitioner to undergo any further examination like CT Scan, inspite of specific requests made by the 1[st] petitioner. It is alleged that the 10[th] respondent even refused to approve the advice of the specialists at the Hospital to take CT Scan of the head of the 1[st] petitioner at the Medical Trust Hospital, Ernakulam and he had destroyed the case sheet related to the treatment of the 1[st] petitioner. Exhibits P2 & P3 are produced as prescriptions ## **W.P.(c) No. 16901/2008** -3- issued to the 1[st] petitioner during the course of treatment. While on duty on 25-04-2004 the 1[st] petitioner started vomiting due to serious headache. The Specialist Medical Officer at I.N.H.S, Sanjeevani was consulted and it was diagnosed that the 1[st] petitioner is suffering from Cervical Spondylosis. She was advised for 48 hours 'sick in quarter' as per Ext.P4. But on the next day the 10[th] respondent called her for duty, after examining the 1[st] petitioner. Exhibit P5 is the prescription dated 26-05-2004 with respect to examination conducted by the 10[th] respondent. The 10[th] respondent opined that the headache is due to mixed anxiety and psychomotive starvation. It is stated in Ext.P5 that the 1[st] petitioner is having crano facial pain and she was advised to be administered with medicines for depression. On the next day also the 10[th] respondent had examined the 1[st] petitioner and continued to advice medication. But on 28-05-2004 the 1[st] petitioner collapsed at home and she was rushed to the said Hospital. She had undergone CT Scan at the advice of the Specialist Doctor and further an MRI Scan was taken. She was admitted **W.P.(c) No. 16901/2008** -4- there on 28-04-2004. On 02-06-2004 she was discharged for better management and treatment by Neuro Surgeon at the 8[th] respondent's Hospital, based on a diagnosis that the 1[st] petitioner is suffering from Meninjoma. On 03-06-2004 the 1[st] petitioner was admitted at 8[th] respondent's hospital at Bangalore. On 11-06-2004 it was diagnosed that the 1[st] petitioner is suffering from Pineal Tumer and recommended for surgery. The petitioners alleges that before advising surgery no Biopsy test was conducted and the operation could have been avoided further by treating her with Radio Therapy and Chemo Therapy. The 11[th] respondent who is incharge of the 1[st] petitioner had conducted the surgery on 22-06-2004, allegedly without obtaining any express consent from the petitioner. During the post operative period she was kept under ventilator and thereafter she was removed to the 7[th] respondent's Hospital for treatment of cancer. It is stated that the 1[st] petitioner got infected by meningitis due to careless handling during post operative period. On 09-07-2004 the 1[st] petitioner was discharged from 8[th] respondents hospital and she was shifted to 7[th] **W.P.(c) No. 16901/2008** -5- respondent's Hospital through train without giving any proper care and protection. By the time the infected meningitis converted to septicemia, because of the negligent handling by those who attended the 1[st] petitioner at the 8[th] respondent's Hospital. But the 1[st] petitioner had admitted to 10[th] respondent's Hospital on 10-07-2004 and she was admitted to the common ICU. After taking MRI Scan and after continued treatment there was no improvement. The 7[th] respondent's opinion was that the petitioner will not be able to perform the duty of Nursing Officer any more and will not be fit to continue in the service . Exhibit P10 is the Medical Opinion given from the 7[th] respondent's Hospital. By the time the 1[st] petitioner was under 'coma' stage. On the basis of Ext.P10 she was again transferred to the 10[th] respondent's Hospital and continued under treatment there. 3. The 2[nd] petitioner submitted complaint before the 6[th] respondent about the act of the medical negligence committed by the 10[th] respondent during the period at INHS, Sanjeevani. Subsequently he had preferred a writ ## **W.P.(c) No. 16901/2008** -6- petition before this court as W.P (c) No.37772/2004. During pendency of this writ petition the 1[st] petitioner was examined by the Medical Board in which it is found that the 1[st] petitioner is totally invalid. The 2[nd] petitioner preferred an appeal against the findings of the Medical Board. This court directed the 2[nd] respondent to consider the said appeal (Ext.P12) through Ext.P13 judgment. But the 2[nd] respondent issued Ext.P14 confirming the invalidation imposed by the Medical Board. Exhibit P15 is the certificate issued by the invalid Medical Board, held on 10-11-2006 in which it is opined that the 1[st] petitioner is 100% disabled and requires constant attendant throughout her life. Subsequently procedures were adopted to treat the 1[st] petitioner as to discharge her from Military service, based on disablement. Benefits like pension etc. were paid to her. This writ petition is filed on the premise that due to the negligence on the part of respondents 7, 8, 10 & 11 in connection with the treatment of the 1[st] petitioner she had sustained heavy damages and that the 1[st] respondent is vicariously liable to compensate the same. ## **W.P.(c) No. 16901/2008** -7- 4. In the grounds enumerated in this writ petition it is contended that, the petitioner was not properly treated at the 10[th] respondent's Hospital, from 02-03-2014 onwards till 28-05-2004, despite she was admitted in the said hospital in a very critical and worse condition. It is alleged that, despite the fact that the petitioner had reported at the MI Room with a complaint of persistent headache, no steps were taken to conduct any further investigation by advising CT Scan or MRI Scan. On the other hand, the 1[st] petitioner was advised to take medicines one after another. Hence it is contended that there occurred clear negligence on the part of the 10[th] respondent, which had resulted in worsening the medical condition of the 1[st] petitioner to a grave situation. It is also further alleged that after admitting the 1[st] petitioner at the 8[th] respondent's hospital the respondents 8 & 11 had shown total negligence and carelessness in treating her. It is alleged that the surgery was conducted without attempting to have any biopsy examination done and that the surgery was conducted without obtaining any express consent from the 1[st] petitioner or from the 2[nd] petitioner. It **W.P.(c) No. 16901/2008** -8- is further alleged that the post operative complications were developed only due to the surgery conducted, which was a wrong course of treatment adopted by respondents 8 & 11. There are also allegations against the 7[th] respondent with respect to the manner in which the 1[st] petitioner was treated at that Hospital in a careless and negligent manner. Basically, the claim is that, due to the above narrated negligence on the part of the respondents 7, 8, 10 & 11 the 1[st] petitioner is deprived of her constitutional rights protected under Article 21. It is contended that the 1[st] petitioner remains totally invalid at a 'coma' stage and she cannot survive without the help of two personal attendants. It is mentioned that the 1[st] petitioner is continuing in vegetative stage since the date of the surgery onwards and it is reported that her condition will not be improve in any manner. It is on the basis that the 1[st] petitioner had suffered 100% disability and had incurred huge expenditure in connection with the treatment and is continuing future life with total disablement and on the basis of the other nonliquidated damages suffered by her, the petitioners are ## **W.P.(c) No. 16901/2008** -9- seeking compensation. The responsible officers being persons under Military service of the Union Government, it is contended that the 1[st] respondent is vicariously liable to pay the compensation claimed. 5. Separate counter affidavits are filed by respondents 1 to 8 & 11 as well as by respondents 4, 9 & 10. The allegation of the petitioners regarding medical consultations made by the 1[st] petitioner within the period from 02-03-2004 till 26-05-2004 is denied. It is mentioned that there is no records at all available to show that the 1[st] petitioner was treated at the 10[th] respondent's Hospital during the said period. It is contended that the Hospital records like 'Sick Report Register', 'Special Investigation Register' does not contain anything to the effect that the petitioner had reported for treatment. According to respondents the 1[st] petitioner was reported sick for the first time only on 25-04-2004, and she was examined by the officials on the same day. She was provisionally diagnosed as suffering from Cervical Spondylosis. It is stated that on 26-05-2004 she was attended by a Neuro Physician and **W.P.(c) No. 16901/2008** -10- advised medicines based on the diagnosis. On 28-05-2004 the 1[st] petitioner was rushed to the Hospital and further examination like C.T. Scan, MRI Scan were carried on, wherein an unspecified tumor was detected. The 1[st] petitioner was admitted at I.N.H.S Sanjeevani. I.N.H.S Sanjeevani was only a primary level hospital and the available Neuro Surgical Centre. As per the service channel of reference was the 8[th] respondent's Hospital, she was referred to that Hospital for further evaluation and management. With respect to the allegation regarding nonobtainment of written consent before conducting surgery at the 8[th] respondent's Hospital, it is stated that written consent or an informed consent will also obtained in all the cases of surgery in service Hospital as a standard protocol and there will not be any deviation from such practise. It is further stated that the 1[st] petitioner developed aseptic meningitis post operatively, which was treated with highly powerful antibiotics, steroids and anti convalescents. She was given ventilator support and managed with intensive advanced life supporting care. It is stated that she was ## **W.P.(c) No. 16901/2008** -11- shifted to 7[th] respondent Hospital for undergoing Radio therapy, because such facility was available only at that hospital. It is also stated in the counter affidavit that, with respect to the alleged medical negligence a detailed court enquiry was conducted by a duly constituted authority and it was found that such allegations are totally baseless. 6. The only question arising for consideration in this writ petition is as to whether the petitioners are entitled for any compensation to be paid by the 1[st] respondent on the basis that the alleged acts on the part of respondents concerned had resulted in violation of rights protected under Article 21 of the Constitution of India. This court can arrive at a conclusion that there occurred infringement of the constitutional rights, only if it is found that there was failure or negligence on the part of the respondents concerned in treating the 1[st] petitioner in any manner, which will amount to a medical negligence within the parameters stipulated under the relevant Statutes, Rules or Regulations. The allegations are mainly on two aspects. One is regarding failure on the part of the 10[th] respondent and **W.P.(c) No. 16901/2008** -12- the Doctors at the said Hospital in properly diagnosing the disease of the 1[st] petitioner and in giving her proper medical treatment, management or advice. The respondents are refuting the contentions that the 1[st] petitioner was treated at 10[th] respondent's hospital for the initial period. In this regard the petitioners are relying on various prescriptions and statements contained in the discharge and disability certificates. Even assuming that the 1[st] petitioner was treated during the period from 02-03-2014 onwards at the 10[th] respondent's Hospital, medical negligence can be found against those who are responsible, only if it is convinced that they have acted negligently in any manner, which will amount to a medical negligence under the relevant norms and standards. Mere non-diagnosis of the real disease or administration of improper medicines on the basis of an erroneous diagnosis, will amount to medical negligence, is the question. It is to be decided based on the technical aspects as well as etiquette in the profession. Any medical practitioner can be held as committed of medical negligence, only if he had taken a patently erroneous ## **W.P.(c) No. 16901/2008** -13- decision, which a medically qualified and prudent person under given circumstances would not have taken. However, for a proper decision on the issue it requires appreciation of factual circumstances and evidence to be evaluated based on opinion of technical experts, with support of prescribed and accepted professional norms and practises. So also in the case the allegation regarding the surgery conducted at the 8[th] respondent's hospital is a matter which requires detailed examination. One of the allegation is that instead of advising surgery a biopsy test ought to have been conducted, so that the illness could have been managed by Radiation and Chemotherapy. But whether any specimen for the said biopsy test could have been collected from the tumor which was diagnosed to be in the brain, is a matter upon which only such experts can make opinion. Further allegation is regarding non obtainment of express consent. No where it is alleged that the surgery was conducted ignoring any protest raised by the petitioners or against the desire and decision of the petitioners. Even assuming that the surgery was conducted without obtaining a written ## **W.P.(c) No. 16901/2008** -14- consent from either of the petitioners, whether it amount to failure of a requisite formality under any Rules or Regulations, requires to be probed. That by itself cannot be taken as a conclusion to the effect that the Doctors have committed any medical negligence in that respect. Evidently, the 1[st] petitioner developed post operative complications like Meningitis and Septicemia. But there is no evidence to prove that such complications are developed because of any fault or failure in the procedure of surgery. Under such circumstances, these aspects also require detailed evaluation and appreciation of factual aspects, based on expert opinions and evidence. This court dealing with a writ petition under Article 226 cannot resort to any such procedure of adjudication. 7. In this regard it is pertinent to note that Ext.P7 is a letter alleged to have written by the 1[st] petitioner before she underwent the surgery, addressing to the 2[nd] petitioner. The entire allegation is basically against the harassment met out from the side of the 10[th] respondent, which according to the petitioners is totally unreasonable **W.P.(c) No. 16901/2008** -15- and inhuman in nature. But those allegations are basically with respect to the attitude by which the 10[th] respondent had behaved with the 1[st] petitioner. That by itself cannot constitute a medical negligence in the matter of treatment. If the 1[st] petitioner is in any manner harassed or arbitrarily dealt with by the 10[th] respondent the remedy is to seek appropriate proceedings. Such an allegation cannot be said to constitute an aspect of medical negligence, for which the petitioners can be compensated. Further it is pertinent to note that, there is no allegation with respect to the aspect of non-obtainment of consent before undertaking surgical procedure at the 8[th] respondent's hospital. At any rate, on the materials available, this court is not in a position to arrive at a finding regarding any aspect of medical negligence which had resulted in infringement of the constitutional rights of the petitioner. 8. Learned counsel for the petitioner had placed reliance on the decision of the Honourable Supreme Court in **Paschim Banga Khet Mazdoor Samity and others v. State of West Bengal and Another [AIR 1996 SC** ## **W.P.(c) No. 16901/2008** -16- **2426]** . It is held therein that right to live protected under Article 21 will be infringed if there is failure of Govt.Hospitals to provide timely emergency medical treatment to persons in need. It is a case where a person injured in an accident was denied treatment at various Government hospitals which are approached, even though his condition was very serious at that time. The Apex Court observed that, compensation for breach of right guaranteed under Article 21 because of failure on the part of the Government hospitals in providing timely emergency medical treatment can be granted. But as observed above, this court is not in a position to arrive at a conclusion regarding the medical negligence on the factual aspects of the case at hand. 9. Learned counsel further relied on another decision of the hon'ble Apex Court in **Balram Prasad (Dr.) and Others v. Dr.Kunal Saha and Others [2013 (4) KHC SN 25(SC)]** . It is held therein that right to get proper treatment to patients irrespective of their social, cultural and economic background is a right under Article 21. It is ## **W.P.(c) No. 16901/2008** -17- not only a fundamental right but also a human right. Doctors, Hospitals and Nursing Homes and other connected establishments are to be dealt with strictly if they are found to be negligent in dealing with the patients. The decision further says that death of a patient due to poor diagnosis and prescription of overdose medicines will amount to medical negligence which need to be compensated. On the facts, the case dealt with by the Apex Court is one arising out of the decision rendered by the National Commission under the Consumer Protection Act. After evaluating evidence on record, the commission had arrived at a conclusion regarding medical negligence in the said case. 10. In a decision of this court in **Dr.T.T.Thomas V. Elisa & Others (1986 KLT 1026)** , a Division Bench observed that, consent of the patient for conducting operation is to be obtained and in case of medical negligence, it is a burden of proof of the Doctor concerned to prove that non performance of the surgery or non administration of the treatment was on account of the refusal of the patient to give consent. But on the factual ## **W.P.(c) No. 16901/2008** -18- situations available the dictum has no application. 11. Lastly, learned counsel for the petitioner had pointed out a decision of the High Court of Andhra Pradesh reported in **Smt.A.V.Janaki Amma v. Union Of India [(2004) 7 CLD 662 (AP)]** . It is held that where any Army Doctor or Surgeon fails to discharge his duties by duly taking care like any other Doctor of his standard elsewhere, such Army Doctor would be guilty of negligence and is liable for action in tort and both the Government and Doctor on principles are vicariously liable. Here again the entire question is whether the Army Doctors arrayed as respondents in the case were negligent in treating the 1[st] petitioner or not, which this court cannot decide in this proceedings. 12. As already observed, the relief sought for is not a matter which can be adjudicated in this writ petition. The petitioners have to establish that there occurred medical negligence on the part of the respondents which will entitled them to seek compensation based on infringement of constitutional rights. Leaving open such remedy if any **W.P.(c) No. 16901/2008** -19- available to the petitioner in appropriate proceedings before appropriate forum, this writ petition is hereby dismissed. Sd/- **C.K. ABDUL REHIM JUDGE** ## **AMG** True copy P.A. to Judge