HIGH COURT OF ORISSA: CUTTACK O.J.C. Nos. 8819 and 6311 of 2000 In the matter of applications under Articles 226 & 227 of the Constitution of India. ---------In O.J.C. No.8819 of 2000 Sk. Abdul Ahad, aged about 31 years, S/o. Sk. Abdul Samed, resident of At: Ramkapur, P.O. Sukleswar, P.S. Mahanga, District: Cuttack …Petitioner -VersusState of Orissa and others For Petitioner …Opp. Parties : M/s. Jagabandhu Sahoo, S.K. Mohanty & P.K. Das For Opp. Parties : Mr. Ashok Mohanty Advocate General [For O.P. Nos.1,2,3 and 5]. M/s. R.K. Mohanty D.K. Mohanty, P.K. Ratha, A.P. Bose, S.N. Biswal, P.K. Samantray, & J.K. Kanungo, [For O.P. No.4]. In O.J.C. No.6311 of 2000 Sri Dibya Keshari Deo, aged about 36 years, S/o. Sri Ram Chandra Deo, At: Rajabagicha, P.O. Tala Telengabazar, P.S. Purighat, Dist: Cuttack …Petitioner -VersusState of Odisha and others For Petitioner …Opp. Parties : For Opp. Parties : M/s. G.N. Pattnaik & Y.S.P. Babu, Mr. Ashok Mohanty Advocate General [For O.P. Nos.1 to 4]. 2 ----------P R E S E N T: THE HON’BLE THE CHIEF JUSTICE MR. V GOPALA GOWDA AND THE HON’BLE MR. JUSTICE B. N. MAHAPATRA Date of Judgment:17.09.2012 B.N. Mahapatra, J.Writ Petition bearing O.J.C. No.8819 of 2000 has been filed with a prayer to direct opposite parties-State and its functionaries to pay a sum of Rs.10 lakhs as compensation to the petitioner within a stipulated period. Writ Petition bearing O.J.C. No.6311 of 2000 has been filed in the nature of a PIL seeking direction to Central Bureau of Investigation to investigate into death of two young women and their two new born babies and another pregnant woman who met death in Gynecology Department delivery ward of S.C.B.Medical College and Hospital, Cuttack due to administration of spurious and contaminated transfusion of fluid supplied by the Hospital authorities and to unearth the racket in supply and purchase of drugs and fluids etc. Since cause of action for filing of above two writ petitions is same they are dealt with together.
2. Petitioner’s case in O.J.C. No.8819 of 2000 is that the wife of the petitioner was pregnant and was supposed to deliver her second child. On 29.6.2000, at about 2.00 P.M., when the petitioner’s wife suffered from acute delivery pain she was taken to nearby Government Hospital at Raisunguda. The Doctor attending the wife of the petitioner advised the 3 petitioner to take his wife to Cuttack for further treatment. Accordingly, on the said date the petitioner took her wife to City Hospital by ambulance where she was admitted. On the next day, i.e., 30.6.2000 at about 2.00 P.M., the doctor attending the petitioner’s wife at City Hospital advised the petitioner to take her to S.C.B. Medical College & Hospital, Cuttack for the purpose of operation. As per the advice of the doctor of the City Hospital, the petitioner at about 3.00 P.M. took her wife to S.C.B. Medical College & Hospital by ambulance for further treatment. Petitioner’s grievance is that in spite of his request to the doctor on duty at the S.C.B. Medical College & Hospital no treatment was offered to his ailing wife. At about 4.00 P.M., the petitioner’s wife was formally admitted into the Hospital vide Registration No.4616 dated 30.6.2000. Nearly two hours thereafter, his wife was taken to the labour room where she was left without any treatment by the doctor through out the night. On the next day, i.e., 1.7.2000 as no treatment was offered by the doctors in the hospital petitioner’s wife was helplessly crying. The petitioner and his mother-in-law, who were also helplessly waiting, requested opposite party no.4-Dr. S.N. Das, Prof. & Head of the Department of Obstetrics & Gynaecology, S.C.B. Medical College & Hospital to give treatment to his wife and said opposite party No.4 did No.pay any heed to the request of the petitioner. For want of treatment, the condition of his wife deteriorated gradually. The petitioner was again constrained to approach said opposite party no.4 and thereafter at about 7.30 P.M. at night, the petitioner was instructed with a slip to purchase medicines for 4 the purpose of operation. The petitioner immediately brought medicines as instructed by the doctor and his wife was thereafter taken to the O.T. Room at about 8.00 P.M. for operation. After few minutes, the wife was brought from the O.T. Room on the plea that, as the child inside the womb was dead, there was no need of any operation and the patient will give delivery to the said child in usual course. After hearing the news of death of the child, the petitioner wanted to kNo.the reason of death of his child inside the womb, but no reply was given to the petitioner. The petitioner further requested the doctor to save his wife by offering due and proper treatment. The petitioner’s wife was again taken to the labour room at about 11.00 P.M. on the said date, i.e., 1.7.2000 and was impregnated with a saline. Shortly after the saline was pricked on the body of the petitioner’s wife, she suffered from acute thrill and was thereafter covered with a blanket. Nobody was allowed to enter inside the labour room to see the condition of the patient. The petitioner helplessly waited outside as a mute and dumb spectator and thereafter at about 12.00 P.M. the peon on duty informed that his wife is dead and he has to make arrangement to shift the dead body from the hospital. After sometime, two other patients in the same Department of Obstetrics & Gynecology, namely, Mamata Behera and one Bhanumati Das also died while being administered with saline. On 2.7.2000, the Superintendent, S.C.B. Medical College & Hospital directed for post mortem of the dead body. The petitioner was thereafter issued with 5 a dead body carrying certificate by Autopsy Surgeon after conducting the post mortem examination. Hence, the present writ petition.
3. O.J.C. No.6311 of 2000 has been filed in the nature of a Public Interest Litigation before this Court by Sri Dibya Keshari Deo, Advocate. Mr. Deo, claims himself to be a social worker and public spirited person always fights for social justice and human rights. The petitioner stated that on 2 nd or 3rd July, 2000 two young women along with their two newly born babies and another pregnant woman met “violent death”. in the Gynaecology Department’s Delivery Ward of SCB Medical College and Hospital following administration of spurious/contaminated I.V. fluid (saline) supplied by the Hospital Authorities. His further allegation is that serious complications were also noticed in respect of other patients belonging to different wards for such administration of contaminated/ spurious IV fluids. The incident was totally unexpected and struck terror amongst the patients of the hospital. Referring to the publication of a news item in Asian Age on 07.07.2000 that in Cabin No.5 of Surgery Department of SCB Medical College & Hospital, Cuttack one Sri S.K. Mishra of Nayagarh district had undergone a hernia operation on 01.07.2000 and was administered with saline procured by the Hospital Authorities from M/s. Om Pharmaceutical Pvt. Ltd., Industrial Estate, Cuttack-10 with manufacturer licence No.53 and Batch No.9571. After administration of this saline, the patient developed high fever and the fluid was to be withdrawn by the nursing staff and Sri Mishra could recover from the hazards of this spurious saline later on. He also described another 6 incident pertaining to Smt. Geetanjali Ray of Cabin No.8 of the Gynaecology Department, who had removed the tumor from her uterus. This patient also developed complications following administration of hospital supplied saline which was of M/s. Kelvin Pharmaceutical Pvt. Ltd., Industrial Estate, Cuttack bearing Batch No.D-1163. It was alleged that some white thread like particles were seen in the saline bottle and its colour was unusually slight green. The saline was seized on 05.07.2000 by the Mangalabag Police. He further stated that the Professor of Neurosurgery and Asst. Professor of Anaesthesia complained about supply of hydrocortisone injection by the hospital authorities to the Ward which was sub-standard quality. The matter was brought to the notice of the Superintendent of SCB Medical College & Hospital, Cuttack. The petitioner highlighted that some medicine mafia having nexus with the hospital officials are continuously supplying the substandard/spurious medicines to the Government hospitals. It is further alleged that there is unholy alliance between the top Government officials and the Manufacturers/Suppliers of salines, medicine etc. In the PIL petition, the petitioner prayed for investigation into the matter by an independent agency preferably by the CBI.
4. Mr. J.Sahu, learned counsel appearing for the petitioner in O.J.C. No.8819 of 2000 submitted that all the medical documents including bed-head ticket and other papers were No.handed over to the petitioner and the same were denied to the petitioner on the plea that the same are no more necessary. After death of the petitioner’s wife, the 7 Mangalabag Police registered a Case bearing P.S.U.D. Case No.540(3) of 2000 and A.S.I.-Sri S.K. Sahu was directed to enquire into the matter after receiving report from Dr. Trupti Patnaik of S.C.B. Medical College & Hospital, Cuttack. After a number of patients in Gynaecology Department succumbed to death due to contaminous saline and gross negligence of the attending doctors and other staff, opposite party no.2-the Director, Medical Education & Training allowed to conduct an enquiry into the matter. Opposite party no.2 in his letter No.12619 dated 14.07.2000 called upon the petitioner’s father to speak about the incident for the purpose of enquiry. In response to the said letter, the petitioner offered a written submission stating the entire chain of events that took place in the S.C.B. Medical College & Hospital. No ostensible steps have been taken to save his wife and the child for which the petitioner has been passing through deep shock and grave mental agony. Mr. Sahu submitted that the death of the petitioner’s wife and the unborn child inside the womb was on account of gross negligence committed by the doctors and other staff of the Department of Obstetrics & Gynaecology, S.C.B. Medical College & Hospital. The repeated request and approach of the petitioner to provide necessary treatment to his wife did No.yield any result and ultimately his wife and the child inside the mother womb died. The petitioner has the information that the attending doctors and other staff before administering saline on her body, have No.conducted any test and at the same time spurious and contaminous saline was impregnated into her body which 8 apparently caused immediate shivering of her body and shortly after pricking of the saline his wife succumbed to death. The petitioner is entitled to be compensated adequately by the State in the interest of justice and equity for gross negligence of doctors and staff of the S.C.B. Medical College & Hospital. Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care, caution and skill. This is what called “implied undertaking”. by a member of the medical profession that he shall be fair, reasonable and have the competent degree of skill. Mr. Sahu further submitted that where Hon’ble Court finds gross negligence on the part of the doctors and hospital authorities appropriate compensation is awarded to the victims for the economic loss and other damages sustained. Placing reliance in the case of Allen vs. Bloomsbury Health Authority (1993) 1 All ER 65.(QBD), it was submitted that damages were awarded in the case of negligence in the termination of pregnancy. Failure for sterilization operation on account of negligence by surgeon was also held to be negligence warranting grant of compensation. Placing reliance in the case of Miss Arnapurna Dutta vs. M/s. Appolo Hospital Enterprisers Ltd. and others; AIR 200.Mad. 340, Mr. Sahu argued that compensation was awarded for medical negligence in the Hospital on account of doctor performing operation leaving behind foreign objects in the abdomen. The death of the wife of petitioner caused serious set back and mental sufferings to the petitioner, who had to survive with his one surviving child of 2 years for rearing for the rest of his life without mother. In the case at 9 hand, as the doctors of S.C.B. Medical College & Hospital have caused gross medical negligence in their duty resulting in death of petitioner’s wife and unborn child, appropriate action should be taken against such erring doctors and staff.
5. Learned Advocate General appearing on behalf of opposite party no.2 submitted that after death of three women patients in the O & G Ward of S.C.B. Medical College & Hospital on 1st and 2nd July, 2000 the matter was investigated by the Superintendent of S.C.B. Medical College. Besides, a fact finding committee (Internal) was constituted comprising Prof. S.K. Palit, Prof. & Head of Department of Nephrology, Prof. Sindhunandini Tripathy, Prof and H.O.D. O & G, Dr. Umesh Chandra Patra, Asst. Prof. Medicine, Dr. A.K. Patra, Blood Bank Officer along with Administrative Officer of the S.C.B. Medical College & Hospital. After enquiry, the fact finding report regarding the death of the patients of O & G Department (including the wife of the petitioner) was submitted by the Superintendent to opposite party no.2, vide his office letter No.105 (8) dated 21.7.2000. The wife of the petitioner was referred from a peripheral Hospital as a case of obstructed labour. Before the patient was admitted to S.C.B. Medical College & Hospital on 30.6.2000 she was admitted to City Hospital, Cuttack on 29.6.2000 at 7.55 P.M., examined by the Emergency Medical Officer Dr. Minati Kumari Majhi and her statement was recorded. On 30.06.2000 at 9.30 A.M. the patient was examined by Dr. Kalyani Patnaik, Asst. Surgeon, a P.G. Degree holder in O &G City Hospital and 10 confirmed that there is no progress in labour. After discussion with her senior Dr. Pravabati Nayak and considering condition of the patient, she advised for LSCS. But even after much motivation, attendants of the patient refused for LSCS and ultimately the wife of the petitioner was referred to S.C.B. Medical College on 30.6.2000 at about 1.30 P.M. In S.C.B. Medical College the wife of the petitioner was admitted to Labour room at 5.20 P.M. on 30.6.2000 vide Registered no.4616 by Suparana Behera, a P.G. student. Thereafter the patient was examined and treatment was given by eight doctors. Detailed treatment was given to the wife of the petitioner from 5.20 P.M. of 30.6.2000 to 1.7.2000 as has been mentioned in the enquiry report of opposite party no.2 and the fact finding report of the Superintendent, S.C. B. Medical College & Hospital. Despite all these efforts the patient did No.survive and expired on 1.7.2000 at 11.30 P.M. Due to the incident of death of three women patient in O&G Department of S.C.B. Medical College being directed by the State Government to Dr. R.N. Nanda, the then DMET conducted the enquiry on 11.7.2000. After perusal of the relevant drugs testing report and thread bare technical deliberations on the same, the expert committee opined that since the impugned LVP fluids have neither been declared as spurious, adulterated and contaminated with fungal growth or toxic substances by the Government Analyst (CDL, Calcutta), it is No.likely to be the cause of any serious complication and adverse reactions on the patients and they have passed 11 all other pharmacopoeal parameters except the single test for bacterial endotoxin.
6. Learned Senior Advocate Mr. R.K.Mohanty, appearing for opposite party no.4 submitted that the petitioner’s allegation against opposite party No.4 is limited to what has been stated in para 3(c) of the writ petition wherein he has alleged that the petitioner had purportedly requested this opposite party no.4 to treat his wife to which opposite party no.4 allegedly did No.pay any heed. Mr. Mohanty submitted that all the allegations made against opposite party no.4 in the writ petition are false. According to the clinical working protocol, the petitioner’s wife was directly admitted to Unit No.IV headed by Dr. S.K. Mohapatra and treated by the doctors allotted to such unit. Opposite party no.4 had thus no role to play in the treatment of the petitioner’s wife. Opposite party no.4 was never faced with any occasion when his experience was requisitioned as H.O.D. by head of the Unit IV where the petitioner’s wife was being treated. On a plain reading of the writ petition it transpires that the pleadings are inconsistent. On one hand the petitioner asserts that he was No.allowed to enter the labour room, but on the other he seems to have described the condition of his wife while being treated inside the labour room. So far as the saline is concerned, the requirement is indicated by the in-charge sister of the labour room. The requisite saline is procured directly from the store of the S.C.B. Medical College and Hospital and No.from the Department. Therefore, opposite party no.4 had no occasion No.was he required to 12 kNo.about the administration of saline to a patient in a unit headed by another Professor/Associate Professor. There is absolutely no occasion for the labour room doctors to deal with the H.O.D. while treating a patient No.belonging to his unit. Hence the petitioner’s wife having been admittedly treated in unit no.IV there was absolutely no occasion for this opposite party no.4 to poke his nose for treatment in the labour room. The H.O.D. is only the administrative head of the Department and has no authority to interfere in the matter of treatment by other doctors unless requested or requisitioned. After the said incident was complained by the petitioner, as the administrative head of the Department, opposite party no.4 had written to Dr. S.K. Mohapatra heading Unit No.IV at the relevant time to enquire into the incident. This unfortunate incident could No.have happened had an operation been done at the point when the patient was in City Hospital. The situation in S.C.B. Medical College and Hospital was “too late”. one particularly in absence of the senior teachers, their supervision and guidance. There was administration of contaminated I.V. fluid (saline) as per the opinion of the experts.
7. On rival contentions of the parties, the questions that fall for consideration by this Court are: (i) Whether administration of spurious/contaminated I.V. Fluid (saline) to three maternity patients in course of their treatment in O & G Department of S.C.B., Medical College and Hospital caused their death in July, 2000?. 13 (ii) Whether due to negligence and lack of care by the Hospital authorities, such spurious contaminated I.V. fluid (saline) was administered in course of treatment of three patients?. (iii) If the answer to question Nos.(i) and (ii) is in affirmative, whether petitioner is entitled to any compensation from the State?. (iv) 8. What order?. Question Nos.(i) and (ii) being interlinked, they are dealt with together.
9. In an unfortunate incident, three maternity patients namely, Rosy Bibi, aged about 22 years, W/o. Sk. Abdul Ahad, Mamata Behera, aged about 20 years, W/o. Ajaya Behera and Bhanumati Das, aged about 30 years, W/o. Duryodhan Das died in O & G Department of S.C.B., Medical College and Hospital in July, 2000. The said incidents were highlighted in the Press and Media.
10. This Court vide order dated 14.08.2007, passed in O.J.C. No.6311 of 2000 directed the D.G. Police of Vigilance to be present before this Court on 20.08.2007 after making the following observation: “….This writ application has been filed in the year 2000 and in this matter an affidavit has been filed by the State running into several pages giving various detail. A portion of the affidavit shows that there is a report of the Expert Committee dated 29.9.2000. The relevant portion of the said report is set out below: “After perusal of the relevant drugs testing reports and threadbare technical deliberations on the same, the expert committee is of the opinion that since the impugned LVP fluids have neither been declared as spurious, adulterated and contaminated with any fungal 14 growth of Toxic substances by the Government Analyst (C.D.L. Calcutta); it is No.likely to be the cause of any serious complications and adverse reactions in the patients, in view of the fact that they were all sterile products and that they have passed all other pharmacopoeal parameters except the single test for bacterial endotoxin”. We find the saline was injected to the patients and three such patients died namely Rosy Bibi, Mamata Behera and Bhanumati Das. The report which was obtained from the Government analyst shows that the sample does No.pass the test No.does it conform to I.P. in respect of ‘Bacterial Endotoxin’. In view of such report, the Expert Committee’s findings appear a little incongruous. Therefore, the Court takes judicial notice of the fact that the question of fake medicine which is No.agitating public mind has been going on for quite some time. It is the common experience of most of the consumers as this Court has been told by various members of the Bar that genuine medicines are No.normally available to an ordinary patient. We do No.kNo.if the suppliers who had supplied the saline in question are still supplying the same to different hospitals or not. It appears that no steps have been taken against the suppliers despite the fact that the fake saline given by the suppliers indicates are substandard. In such a situation, we are of the view that the matter should be properly inquired into by the D.G. of Police (Vigilance), Orissa, Cuttack. We, therefore, direct the D.G. of Police (Vigilance) to be present before this Court on next Monday (20.08.2007) at 2.00 P.M.”
11. Pursuant to the said direction, the D.G. of Police (Vigilance) was present before this Court and this Court directed the Registry to handover the Xerox copy of the entire record including counter affidavit and the report regarding of three women patients in the O & G Department of SCB Medical College & Hospital to the learned Standing Counsel for the Vigilance Department, who will make it over to the D.G. Police (Vigilance), 15 Odisha, Cuttack. This Court further made it clear that the inquiry would be held under the supervision of the D.G. of Police (Vigilance), Odisha, Cuttack and the report be submitted in a sealed cover by 30th October, 2007. Pursuant to the said order of this Court, the D.G. of Police (Vigilance) submitted the inquiry report.
12. Since this Court has No.inspired confidence for the reasons stated vide order dated 14.08.2007, directed the D.G. of Police (Vigilance) to investigate into the matter. The argument of learned Advocate General on the basis of the report of the Committee dated 29.09.2000 does No.merit consideration. The Vigilance Inquiry Report dated 22.08.2007 reveals that the inquiry was conducted covering the following aspects. (i) To find out the details of prevalent Rules and Regulations governing procurement of medicines and medical consumables for Medical College and Hospitals of the State including SCB Medical College & Hospital, Cuttack either by the Government of Odisha or by the SCB Medical College & Hospital Authorities themselves. (ii) To find out the details regarding the selection of manufacturers for supply of medicines and medical consumables for the Medical College Hospitals and others and to ascertain the details of receipt and supply of medicines and medical consumables by the SCB Medical College & Hospital Authorities and its consequent supply to different departments of the hospital including O & G Department on the relevant days. 16 (iii) To ascertain the adopted procedures and practice in the hospital relating to indent by different departments and supply of the required items to such departments by the Central Medical Store of the SCB Medical College & Hospital, Cuttack. (iv) Finally to ascertain and establish if the 3 deaths of maternity patients with 2 new born babies were due to the administration of spurious/contaminated I.V. fluid (saline) in the O & G Department and if so who are its manufacturer/Supplier and if there was any lack in proper treatment and follow up action in course of treatment of the patients. If so who are they and how they have been dealt with to prevent future recurrence of such unfortunate incidents in the Government Hospitals that too in the premier Medical Institution of Odisha like SCB Medical College & Hospital, Cuttack.
13. It appears that the vigilance report contains 59 pages. The Enquiry Officer also took into consideration the report of Dr. R.N. Nanda, the then DMET, Odisha, Bhubaneswar, who in his report observed different lapses on the part of Dr. Trupti Pattnaik, Asst. Surgeon, Dr. Annapurna Mohanty, In-charge of Labour Room and Dr.S.K. Mohapatra, Unit Head for their failure in maintaining clinical protocol in the Department and for No.undertaking any investigation of the patient Rosy Bibi although she survived for about 30 hours from the time of her admission.
14. In case of Mamata Behera, the then DMET has also recorded his finding that initially in the BHT, the address of the patient was No.recorded correctly. Dr. A. Mohanty who visited the patient at 9.15 A.M. o”
01. 07.2000, except advising LSCS, has No.given any definite advice. No investigation has been made. Medical protocol is No.maintained. Emergency call was given at 1.25 AM to the Emergency Resident Physician, who attended the patient at 1.40 AM and death was declared at 1.50 AM on 02.07.2000. Moreover, the reason for keeping the saline bottle for examination has No.been specified.
15. In case of Bhanumati Das, the said DMET in his report dated 31.07.2000 has also reflected the following lapses on the part of the treating physicians. (i) failure of the Resident Surgeon to record her advice in the BHT at the time of admission, (ii) failure of doctor to look into medical aspect of the suffering of patient by collecting blood slide for MP, (iii) failure to take up routine investigation of the patient, (iv) ambiguity in the findings of PG student Dr. Sanjib Patra by recording pulse at 178/minute and BP 110/74, (v) failure for No.consulting the seniors like the Unit Head, Assistant Professor or Associate Professor, at the time of need, and (vi) 16. failure to maintain proper medical protocol. The Vigilance Inquiry Officer also took into consideration the report of the I.I.C., Mangalabag Police Station in the cases of Rosy Bibi, Mamata Behera and Bhanumati Das and the report of the Government 18 Analyst, Central Drugs Laboratory, Calcutta after examining the samples of Dextrose Injection I.P. 5% of Batch No.D-1163 manufactured by M/s. Kelvin Pharmaceutical Laboratories Pvt. Ltd., Cuttack. In the said report, it has been opined that “it to be No.of standard quality as it failed the parameter test on bacterial endotoxin”.. Similarly, in respect of all other I.V. fluids sent for examination, the Government Analysts found it No.to be of standard quality. This relates to the samples taken by the Drugs Inspector, Cuttack-3 Range from the Central Store, SCB Medical College & Hospital, Cuttack.
17. Dr. R.N. Nanda, the then DMET, Odisha, Bhubaneswar, in his report has stated that he has conducted a detailed inquiry as regards the circumstances vis-à-vis facts leading to death of the three maternity patients in the O & G Department of SCB Medical College & Hospital, Cuttack in July 2000. Mr. Nanda submitted his report dated 31.07.2000. Later on, on the direction of the Government, an Expert Committee consisting of the then Drugs Controller, Odisha, Bhubaneswar, the then Direction, Health and Family Welfare Department, Odisha, the then Director Health Services and the then DMET, Odisha sat in the chamber of Addl. Secretary to Government, Department of Health & Family Welfare Department on 29.09.2000 and held a detailed discussion regarding the incidents of death of 3 maternity patients in the O & G Department of SCB Medical College & Hospital, Cuttack. The Government after careful examination of the Enquiry Report of the then DMET, Odisha, Bhubaneswar asked the said authority for taking disciplinary action 19 against seven doctors of the SCB, Medical College and Hospital, Cuttack, namely, (1) Dr. Suryanarayan Das, Ex-Prof. & HOD, (2) Dr. S.K. Mohapatra, Associate Professor, (3) Dr. B.S. Parija, Associate Professor, (4) Dr. Annapurna Mohanty, Associate Professor, (5) Dr. Sabita Patnaik, Associate Professor, (6) Dr. Tushar Jyoti Kar, Asst. Professor, all of O & G Department, and (7) Dr. Trupti Patnaik, Asst. Surgeon. Since Dr. B.S. Parija has expired and Dr. S.N. Das, Dr. S.K. Mohapatra, Dr. Annapurna Mohanty and Dr. Sabita Patnaik have already retired from Government Service, draft charges have been framed under Rule 15 of the OCS (CCA) Rules, 1962 against Dr. Tushar Jyoti Kar for negligence in duty in violation of the Government Servants Conduct Rules.
18. In the Vigilance Inquiry Report, it is reiterated that the Superintendent of SCB Medical College & Hospital, Cuttack during 2000 prior to occurrence along with the Store Medical Officer also required to satisfy themselves on the quality of I.V. fluids procured by them from local SSI Units as per the condition prescribed by the Director, EPM while selecting such SSI Units. This has been apprised to all concerned by the Director, EPM in his letter No.3807(200)/EPM dated 26.04.1999 vide ParaIII. This responsibility has No.been discharged either by the Superintendent or the Store Medical Officer of SCB, MCH, Cuttack while procuring I.V. fluids from the local SSI Units.
19. As regards the negligence of the treating doctors in charge of the treatment of three deceased persons, their negligence and lapses have 20 been duly examined by the fact finding Committee comprising experienced and Senior Professors of the Medical College in their report dated 15.07.2000. Thereafter, the then DMET, Odisha, Bhubaneswar had vividly discussed about the lapses and negligence of the doctors in his enquiry report dated 31.07.2000 and finally in the report of the Expert Committee dated 29.09.2000 leading to a decision for departmental action against the defaulting seven senior doctors.
20. From the Vigilance report and also the report of the DMET, it is clearly evident that there were lapses on the part of the Licensing Authority i.e. Drugs Controller, Odisha, Bhubaneswar for unusual delay in taking a decision for cancellation of Drug Licence thereby resulting in a free-hand to the manufacturers to carry on their business taking advantage of the benefit of the provisions of Rules 72 and 77 of D & C Rules, 1945. The fact that the EMP authorities have omitted to take notice of the adverse performance record of the firms is quite clear. This reveals the role of EPM Authorities in callous manner in the process of selecting and finalizing the list of EMP rate contract SSI Units. The negligence on the part of doctors in charge of treatment of deceased has also come to surface directly or indirectly by the Fact Finding Committee and the DMET, Bhubaneswar which was followed by initiation of departmental action by the Government. In the Vigilance Report recommendation has been made for initiation of appropriate action against the Drugs Controller of Odisha and 21 EPM Authorities for their lapses and expediting the departmental action against all the defaulting doctors.
21. In view of the above, it can be safely concluded that administration of spurious/contaminated I.V. Fluid (saline) to the three maternity patients in course of their treatment in O & G Department of SCB Medical College and Hospital caused death in July, 2000 and due to negligence and lack of care by the hospital authorities such spurious/contaminated I.V. Fluid (saline) was administered to the three patients in course of their treatment.
22. Question No.(iii) is as to whether the petitioner is entitled to any compensation. The present case is governed by the legal maxim respondeat superior and thus, the State is liable for wrong done by the doctors, who are no other than the Government Officers employed by it.
23. Negligence as a tort is defined by Winfield as “the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.”
. The existence of a duty-situation or a duty to take care is, therefore, essential before a person can be held liable in negligence. In the classical words of Lord Atkin: “At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of “culpa”., is no doubt based upon a general public sentiment of moral wrong doing for which the offender 22 must pay. But acts or omissions which any moral code would censure canNo.in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must No.injure your neighbour; and the lawyer’s question, who is my neighbour, receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour?. The answer seems to be— persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
. It is No.an obsolete view that “the duty to be careful only exists where the wisdom of our ancestors has decreed that it shall eixst”.. In Donoghue v. Stevenson itself the House of Lords recognized a new dutysituation and a manufacturer was held to owe a duty of care No.only to the wholesale dealer, but also to the ultimate consumer of his product. As stated by Lord Macmillan in that case: “The conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. [p.619]..”
. Then in Hedley Bryne and Co. Ltd. V. Heller and Partners Ltd. (1964) AC 46.(HL), again a new duty-situation was recognized. It was held that the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts him to exercise due care and 23 that a negligent, though honest, misrepresentation in breach of this duty may give rise to an action for damages apart from contract or any fiduciary relationship. Lord Pearce in that case said: “How wide the sphere of the duty of care in negligence is to be laid depends ultimately upon the Courts’ assessment of the demands of society for protection from the carelessness of others.[p.536]..”
. The principles governing the recognition of new duty-situations were more recently considered in the case of Home Office v. Dorset Yacht Co. Ltd. (1970) All ER 29.(HL). In that case, some Borstal trainees escaped due to the negligence of Borstal Officers and caused damages to a yacht. The owner of the yacht sued the Home Office for damages and a preliminary issue was raised whether on the facts pleaded, the Home Office or its servants owed any duty of care to the owner of the yacht. It was held that the causing of damage to the yacht by the Borstal trainees ought to have been foreseen by the Borstal Officers as likely to occur if they failed to exercise proper control or supervision and, therefore, the officers prima facie owed a duty of care to the owner of the yacht. It was argued in that case that there was virtually no authority for imposing a duty. This argument was rejected and in that connection, Lord Reid made the following pertinent observations: “About the beginning of this century most eminent lawyers thought that there were a number of separate torts involving negligence each with its own rules, and they were most unwilling to add more. They were of course aware from a number of leading cases that in the past the Courts had from time to time recognized new duties and new grounds of action. But the heroic 24 age was over, it was time to cultivate certainty and security in the law; the categories of negligence were virtually closed. The learned Attorney-General invited us to return to those halcyon days, but, attractive though it may be, I canNo.accede to his invitation. In later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask No.whether it is covered by authority but whether recognized principles apply to it. Donoghue v. Stevenson may be regarded as a statement of principle. It is No.be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.”
. [See Madhya Pradesh State Road Transport Corporation and another vs. Mst. Basantibai and others, 1971 MP LJ 706].
24. The right to health and medical care is a fundamental right under Article 21 read with Articles 39(e), 41 and 43 of the Constitution of India, right to life includes protection of health (See Consumer Education and Research Centre and others vs. Union of India and others, AIR 199.SC 922).
25. The Hon’ble Supreme Court in the case of Paschim Banga Khet Mazdoor Samity and others vs. State of West Bengal and another, AIR 199.SC 2426.held as under:
“9. 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 25 discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of 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 canNo.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: Ruddul Sah v. State of Bihar, (1983) 3 SCR 50.: (AIR 198.SC 1086); Nilabati Behera v. State of Orissa, (1993) 2 SCC 74.: (1993 AIR SCW 2366); Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 4.: (1995 AIR SCW 759).”
26. At this juncture, it is profitable to refer to the decision of the Hon’ble Supreme Court with regard to the award of compensation for contravention of human rights. The Hon’ble Supreme Court in Smt. Nilabati Behera @ Lalita Behera vs. State of Orissa and others, AIR 199.SC 1960.held: “A claim in public law for compensation for contravention of human rights and fundamental 26 freedoms, the protection of which is guaranteed in the Constitution is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Arts. 32 and 226 of the Constitution.
27. In Consumer Education and Research Centre (supra), the Hon’ble Supreme Court held: “In public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. The defence of sovereign immunity is inapplicable and alien to the concept of guarantee of fundamental rights. There is no question of defence being available for constitutional remedy. It is a practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exercise of their powers and enforcement of the rights claimed either under the statutes or licence issued under the statute or for the enforcement of any right or duty under the constitution of the law”..
28. The Hon’ble Supreme Court in the case of Rudul Sah v. State of Bihar and another, AIR 198.SC 1086.observed that in appropriate cases, the Court discharging constitutional duties can pass orders for 27 payment of money in the nature of compensation consequent upon deprivation of a fundamental right to life and liberty of a person as State must repair the damage done by its officers to such person’s right.
29. In Kumari Smt. vs. State of Tamil Nadu and others, AIR 199.SC 2069.the Hon’ble Supreme Court overruling the decision of the High Court of Tamil Nadu observed that the writ jurisdiction under Article 226 of the Constitution of India can be invoked by the Writ Court for awarding compensation to a victim, who suffered due to negligence of the State or its functionaries. In that case six years’ old child had fallen down in the uncovered sewerage tank. The High Court refused to entertain the claim of compensation in a writ petition under Article 226 of the Constitution, but the Hon’ble Supreme Court directed the State to pay compensation.
30. The Hon’ble Supreme Court in the case of State of Rajasthan v. Mst. Vidhyawati, AIR 196.SC 933.held as under: “Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. The immunity of the Crown in the United Kingdom was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could No.be sued in his own courts. In India, ever since the time of East India Company, the sovereign has been held liable to be sued in tort or in contract, and the common law immunity never operated in India…….”
”
31. In view of the above, the petitioner as well as the legal heirs of other deceased namely, Mamata Behera and Bhanumati Das are entitled to compensation for the death caused due to negligence on the part of the treating doctors, who are Government employees, and the opposite partyState is liable to pay such compensation to them.
32. Keeping in view the peculiar facts and circumstances of the case, we direct the opposite party-State to pay compensation of Rs.5.00 (Rupees five lakhs) to the petitioner as well as the legal heirs of Mamata Behera and Bhanumati Das in each case on proper identification within a period of two months from the date of receipt of this judgment. Otherwise, they are entitled for interest at the rate 6% per annum on the compensation awarded till the date of payment. The State is at liberty to recover the same from all the concerned who are responsible for their death.
33. Since the incident of deaths in S.C.B. Medical College, Cuttack due to administration of spurious and contaminated transfusion of fluid supplied by the Hospital authorities has been investigated under the supervision of Director General of Police (Vigilance), Odisha, Cuttack and in the vigilance report recommendation has been made for initiation of appropriate action against the Drug Controller of Odisha and EPM authorities for their lapses and for expediting departmental action against all the defaulting doctors there is no need to further direct the C.B.I. to investigate the said incident”
34. In the result, the writ petition bearing O.J.C. No.8819 of 2000 is allowed with the aforesaid observations and directions and O.J.C. No.6311 of 2000 is disposed of accordingly, but without any order as to costs. …………………….......... B.N.Mahapatra, J.V. Gopala Gowda, C.J.I agree.. ...………………………. Chief Justice Orissa High Court, Cuttack Dated 17TH September, 2012/skj/ssd