The Supreme Court on September 26 directed the Army and Indian Air Force to pay Rs 1.54 crore in compensation for medical negligence towards a retired Air Force veteran. He contracted HIV during a blood transfusion at a military hospital where he was admitted when he fell sick during Operation Parakram.
The division bench of Justices S Ravindra Bhat and Dipankar Datta passed the verdict on an appeal by the IAF veteran who challenged an order of the National Consumer Disputes Redressal Commission which had dismissed his plea for Rs 95.31 crore as compensation.
In the wake of the December 13, 2001 terrorist attack on Parliament, India had launched Operation Parakram. The former officer, who was part of it in Jammu and Kashmir, alleged that the incident occurred in 2002 when he got the blood transfusion. In 2014, he fell ill with HIV and it was later determined that the infection was linked to the blood transfusion.
The Court observed that in India, medical negligence is said to have been established by an aggrieved plaintiff or complainant when it is shown that the doctor or medical professional was in want of, or did not fulfill, the standard of care required of her or him. In other words, a doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in the relevant specialty at that time. This test is known as the Bolam test and has gained widespread acceptance and application in Indian jurisprudence. It finds resonance in several decisions.
Recently, in Arun Kumar Mangalik vs Chirayu Health and Medicare Ltd., the Court outlined that though Bolam has been the bulwark principle in deciding medical (and professional negligence) cases, it must adapt and be in tune with the pronouncements relating to Article 21 of the Constitution and the right to health in general. The Court said: “Our law must take into account advances in medical science and ensure that a patient-centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts….”
The Court concluded that the condition in which the IAF veteran found himself was the direct consequence of the two hospital establishments and their breach of the standards of care. This resulted in the transfusion of HIV positive infected blood into the appellant, which was the causative factor.
Further, the Court observed that people sign up to join the armed forces with considerable enthusiasm and a sense of patriotic duty. This entails a conscious decision to put their lives on the line and be prepared for the ultimate sacrifice of their lives. A corresponding duty is cast upon all state functionaries, including echelons of power within the armed forces, to ensure that the highest standards of safety (physical/mental wellbeing, medical fitness as well as wellness) are maintained. The Court said this was absolutely the minimum required of the military/air force employer for not only assuring the morale of the forces, but also showing how such the personnel matter.
In keeping with the mandate of the HIV Act, the following directions are issued by the top court to central and state governments:
(1) Under Section 14 (1) of the HIV Act, the measures to be taken 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.
(2) The centre shall issue necessary guidelines in respect of protocols for HIV and AIDS and ensure their wide dissemination at the earliest, after consultation with all the concerned experts, particularly immunologists and those involved in community medicine, as well as experts dealing with HIV and AIDS prevention and cure. These measures and guidelines shall be issued within three months, and widely disseminated, in the electronic and print media and all popularly accessed public websites.
(3) Under Section 15 (1) & (2) of the HIV Act, governments shall take measures to facilitate better access to welfare schemes to persons infected or affected by HIV or AIDS. They shall frame schemes to address the needs of all protected persons.
(4) Under Section 16 (1) of the HIV Act, 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 for safe-keeping and deposit of documents related to their property rights or make complaints relating to such child being dispossessed or actual dispossession or trespass into such a child’s house.
(5) The central and state governments shall formulate HIV and AIDS related information, education and communication programmes which are age-appropriate, gender-sensitive, non-stigmatising and non-discriminatory.
(6) The centre 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 centre or state governments shall take active measures to counsel and provide information regarding the outcome of pregnancy and HIV-related treatment to HIV infected women. The centre shall also notify HIV and AIDS policy for establishments in terms of Section 12 of the HIV Act.
(7) 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 shall (i) provide universal precautions to all persons working who may be occupationally exposed to HIV and be trained for the use of such universal precautions; post exposure prophylaxis to all persons working in such an establishment who may be occupationally exposed to HIV or AIDS; (ii) inform and educate all persons working in the establishment of the availability of universal precautions and post exposure prophylaxis.
(8) According to Section 20 (1) of the HIV Act, the provisions of Chapter VIII shall apply to all establishments consisting of 100 or more persons, whether as an employee or officer or member or director or trustee or manager. In keeping with 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.
(9) Every person who is in charge of an establishment, mentioned in Section 20 (1) of the HIV Act shall ensure compliance of the provisions of the HIV Act.
(10) Every establishment referred to in Section 20 (1) of the HIV Act has to designate someone as 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. Rules may be formulated by the centre at the earliest, preferably within eight weeks from today.
(11) The Secretary, Department of Labour, of every state shall ensure the collection of information and data relating to compliance with Sections 19 and 20 of the HIV Act, with regard to the designation of a complaint officer in all factories, industrial establishments, commercial establishments, shops, plantations, commercial offices, professional organisations and all other bodies falling within the definition of “establishments”.
(12) Every court, quasi-judicial body, including all tribunals, commissions, forums, etc., discharging judicial functions and those set up under various central and state laws to resolve disputes shall take active measures, to comply with provisions of Section 34 of the HIV Act. Chief justices of all High Courts shall compile information and device methods of collecting information regarding anonymising identity of persons affected and also complying with provisions of Section 34 (2) of the HIV Act. The Registrar General of the Supreme Court shall also look into the matter and frame relevant guidelines.
There have been other judgments regarding medical negligence where the awards have been huge. In V. Krishna Kumar vs State of Tamil Nadu (2015), the apex court awarded damages upon finding negligence in the lack of care due to blood transfusion to a premature baby which led to progressive retinal disease. The top court not only granted damages under the head of mental agony, but also towards past and future medical expenses after factoring an annual inflation rate of 1% per annum. The total sum awarded was Rs 1.38 crore.
In Kunal Saha vs AMRI case, the Supreme Court directed the Kolkata-based AMRI Hospital and three doctors to pay a compensation of Rs 5.94 crore along with interest to a US-based Indian-origin doctor who lost his child psychologist wife during their visit to India in 1998.
A software engineer who suffered permanent disability due to medical negligence at a government-owned hospital in Andhra Pradesh was awarded a massive compensation of Rs 1 crore by the Supreme Court in 2009.
—By Shivam Sharma and India Legal Bureau