Ishwar @ Manju vs State( Govt Of Nct Of Delhi) & Ors.
2020 Latest Caselaw 2217 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of Decision : 22.07.2020
+      W.P.(C) 3604/2020
       ISHWAR @ MANJU                                 ..... Petitioner
                       Through:           Mr.Yogesh Kumar, Adv.
                            versus
       STATE (GOVT OF NCT OF DELHI) & ORS.
                                        ..... Respondents
                            Through:      Ms.Shobhana Takiar, ASC.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)

1. This hearing has been held through video conferencing.

2. This case reflects the utter apathy of the respondent hospitals that are supposed to be renowned hospitals providing healthcare services to the citizens of this State.

3. It is the case of the petitioner that the petitioner suffered acute pain in his abdomen and underwent a surgery in the respondent no. 2 hospital on 30.11.2019. On 06.12.2019, he was discharged from the hospital with instructions that a follow-up procedure/operation would have to be conducted on the petitioner after a couple of months. The petitioner thereafter regularly visited the hospital between December, 2019 and January, 2020 for medical check-ups and tests. On 23.03.2020, the petitioner was informed that the follow-up surgery would be carried out on the petitioner on 27.03.2020, however, due to the lockdown declared by the Central Government because of the

W.P.(C) 3604/2020 Page 1 Covid-19 pandemic, the petitioner could not be operated. The respondent no. 2 hospital, in the meantime, was declared as a Covid- 19 hospital and the surgery could not be performed in the said hospital. The petitioner was thereafter referred to the respondent no. 3 hospital where all the medical tests were again done on the petitioner.

4. It is the further case of the petitioner that in the respondent no. 3 hospital the petitioner was taken to the operation theater on 15.05.2020 for performance of the follow-up surgery. However, the doctors at the respondent no.3 hospital refused to operate upon the petitioner as they suspected that the petitioner was suffering from Covid-19 virus. The petitioner was, therefore, told to have a test conducted on himself for Covid-19. However, when the petitioner produced himself for conduct of this Covid-19 test, the same was refused as the petitioner did not show any symptoms of any virus and therefore, was again referred for the surgery. On 28.05.2020, the doctors at the respondent no.3 hospital, however, again refused to carry out the surgery on the petitioner and he was advised to report back to the respondent no. 2 hospital where the initial surgery of the petitioner had been carried out.

5. The petitioner reported to the respondent no. 2 hospital, which again did not carry out the surgery expressing fear of the petitioner contacting an infection/virus in the said hospital.

6. The petitioner again reported back to the respondent no. 3 hospital, which then informed the petitioner that it had been declared as a Covid-19 hospital and therefore, cannot perform the surgery.

W.P.(C) 3604/2020 Page 2

7. The petitioner then went to respondent no. 4 hospital, however, the surgery was not performed on him.

8. Faced with this agonizing apathy on part of the respondents, the present petition was filed by the petitioner.

9. Notice on this petition was issued to the respondents on 19.06.2020, when the counsel for the respondents was requested to find out in which hospital the petitioner can be operated upon.

10. On 24.06.2020, the learned counsel for the respondents submitted that the procedure/surgery on the petitioner being elective in nature and in view of the present situation of outbreak of Covid-19 virus, it may be detrimental to the interest of the petitioner to undertake such surgery. The petitioner, however, expressly stated that he is willing to undertake this risk and would like to undergo the surgery as he fears that he may develop an infection because of the earlier performed surgery being incomplete.

11. Recording the above statement of the learned counsels for the parties, this Court on 24.06.2020 directed as under:-

"Having considered the submissions made it is directed that the respondents shall clearly state on affidavit if it is their stand that no elective procedure will and is being carried out on any patient due to the present outbreak of Covid-19 virus. If this is not the stand of the respondents, the respondent no.1 shall identify the hospital where the petitioner can undergo the procedure that is required. An affidavit

W.P.(C) 3604/2020 Page 3 in this regard shall be filed by the respondent no.1 by 29.06.2020."

12. On 01.07.2020, the learned counsel for the respondents, on instructions from respondent no.1, submitted before this Court that the follow-up procedure can be carried out upon the petitioner as an EWS patient by the respondent no. 4 hospital. As the learned counsel for the petitioner expressed apprehension that in spite of this statement, the respondent no. 4 may not carry out the procedure on the petitioner, this Court adjourned the hearing to 08.07.2020 to ensure compliance with the statement made by the learned counsel for the respondents.

13. Unfortunately, the fears of the petitioner turned out to be genuine and the respondent no. 4 did not carry out the surgery on the petitioner. The petitioner pleaded before this Court that the petitioner has been made to visit the respondent no. 4 hospital on more than one occasion, however, the surgery has not been performed on him though the tests have already been carried out and the petitioner has been found fit to undergo the surgery.

14. Granting another opportunity to the respondent no. 4, this Court vide its order dated 08.07.2020, directed that the counsel for the respondents shall inform the counsel for the petitioner the name of the doctor to whom the petitioner can report on 09.07.2020 at 11:00 a.m. and the doctor on examining the petitioner shall file before this Court the diagnosis and the treatment given to the petitioner.

W.P.(C) 3604/2020 Page 4

15. In spite of this order, the surgery was still not performed on the petitioner. In fact, a Status Report was filed by the respondent no. 4 hospital stating that the surgery could not be performed on the petitioner as the respondent no. 4 hospital is a „Secondary level hospital‟. The petitioner was, therefore, advised to visit any of the three other hospitals mentioned in the report.

16. The learned counsel for the petitioner submitted that the respondent no. 4 knew well in advance the nature of the surgery that has to be carried out on the petitioner. It was with this knowledge that the learned counsel for the respondents had made a statement before this Court that on the petitioner visiting the respondent no. 4 hospital, the surgery would be carried out. In fact, the respondent no. 4 on looking into the condition of the petitioner had carried out various medical tests on the petitioner and thereafter only as an excuse to hide its callousness, came out with this plea of it being a Secondary level hospital and being incapable of carrying out the surgery on the petitioner.

17. This Court found merit in the submission made by the learned counsel for the petitioner and vide its order dated 15.07.2020, called upon the respondent no. 4 hospital to explain its conduct.

18. With a hope that this Court can address the agony of the petitioner, the respondent no. 1 was directed to state on an affidavit as to which hospital can carry out the follow-up surgery on the petitioner.

W.P.(C) 3604/2020 Page 5

19. The respondent no. 1 has now filed an affidavit stating that the follow-up surgery on the petitioner can be carried out at Deen Dayal Upadhyaya Hospital, Hari Nagar, Delhi (hereinafter referred to as the DDU Hospital) and the petitioner can approach the OPD surgeon of the said hospital for "consultation" on 03.08.2020. It is further stated on affidavit that on 03.08.2020, the date fixed is only for consultation and the surgery will be done after evaluation only. The affidavit further states that the Government is trying its level best to make available the facility for surgery on the petitioner "with possible and justified prioritization".

20. An affidavit has also been filed by the respondent no. 4 hospital which states that on 09.07.2020, the petitioner was examined with "all previous records". It is further stated that the "first lifesaving surgery" was done on the petitioner at LNJP hospital, that is respondent no. 2. The affidavit further goes on to say as under:-

"3. Petitioner has filed the petition for further surgery for ileostomy closer. It is submitted that ileostomy closer procedure can need any additional procedure which may be required as per finding during surgical procedure. It is pertinent to mention that the respondent no. 4 hospital is a secondary level hospital. Therefore, it was decided to refer the petitioner to a tertiary care hospital, i.e. specialised hospital for better outcome, as such he was advised to visit a non Covid Hospital having General Surgery/GI Surgery department.

4. That the case of the petitioner is a follow up case of Appendicular Perforation Peritonitis with ileostomy

W.P.(C) 3604/2020 Page 6 wound. Petitioner had to undergo 2nd surgery as mentioned above. It is submitted that routine investigations are required for fitness of 2nd surgery. The petitioner was investigated for that as per the facility available with the respondent no.4 hospital so that when the petitioner visits the higher centre, i.e. tertiary care hospital for further course of treatment, his work is expedited."

21. It is indeed surprising to note that in spite of having full knowledge of the procedure that needed to be carried out on the petitioner, the respondent no.4 hospital has now come up with an excuse of it not being capable to perform the surgery. It is presumed that the respondent no. 1, while suggesting this hospital to the petitioner, had consulted the relevant doctors of the respondent no. 4 hospital on whether such surgery can be carried out on the petitioner at the respondent no. 4 hospital. In fact, the respondent no. 4 carried out investigation/medical tests on the petitioner for the second surgery knowing fully well that it is in no position to carry out such surgery. It is also of common knowledge that whenever the petitioner has to approach another hospital, the petitioner would have to repeat all these steps/tests. Therefore, there is absolutely no justification as to why the respondent no. 4 carried these tests on the petitioner when it knew it couldn‟t perform the surgery at all.

22. The petitioner has supplied a copy of the OPD card which clearly shows that the petitioner had indeed reported before the respondent no. 4 hospital on 06.07.2020. Therefore, the statement of the respondent no. 4 on affidavit that the petitioner had reported only

W.P.(C) 3604/2020 Page 7 on 09.07.2020 is false and incorrect. In fact, tests were also carried out on the petitioner on 03.07.2020 at the respondent no. 4 hospital and such test reports have produced by the learned counsel for the petitioner before this Court. Clearly, a false affidavit has been filed on behalf of the respondent no. 4 hospital.

23. Be that as it may, there is absolutely no justification provided by the respondent no. 4 as to why these tests were carried out on the petitioner knowing fully well it is in no capacity to carry out the surgery for which the petitioner has been referred to the said hospital. The plea that these tests were carried out with a hope that whenever the petitioner visits the higher centre, his work is expedited, cannot be believed or accepted. It is clearly an afterthought.

24. The above sequence of events further shows that the respondent no. 1 also has absolutely no regard to the misery suffered by the citizens and is acting with complete apathy. In the name of Covid-19 pandemic, the respondent no. 1 wishes to submit that persons suffering from other ailments do not deserve a timely treatment and can continue to suffer. Such apathy and plea can never be accepted by this Court. In spite of regular prodding of this Court and grant of opportunities to the respondent no. 1, now an affidavit has been filed wherein a date of two weeks hence has been given to the petitioner only for purposes of consultation and not for purposes of surgery at DDU Hospital. It is only a matter of speculation that when and if at all thereafter a surgery will be performed on the petitioner or if the petitioner may contact an infection or in fact, become unfit for a

W.P.(C) 3604/2020 Page 8 surgery in the interregnum. In the meantime the petitioner can continue to suffer as per the respondent no. 1.

25. The learned counsel for the respondents submits that the respondent no. 1 or respondent no. 4 cannot be faulted in the above sequence of events inasmuch as it was the petitioner who made respondent no. 4 a party to the present petition with a prayer that the surgery can be carried out on the petitioner by the respondent no. 4. I do not find any merit in the said submission. As a citizen, the petitioner may not have been aware whether such surgery can be carried out at respondent no. 4 or not, however, the same benefit of doubt cannot be given to the respondent no. 1 inasmuch as by the order dated 24.06.2020, the respondent no. 1 was directed to identify the hospital where the petitioner can undergo the procedure that is required. It is after this order that on 01.07.2020, the learned counsel for the respondents, on behalf of respondent no. 1, made a statement before this Court that the follow-up procedure can be carried out upon the petitioner by the respondent no. 4. It is presumed that the respondent no. 1 would have made an enquiry from the respondent no. 4 if it is capable of carrying out such surgery or not and it is only after such enquiry the said statement was made in this Court as recorded in order dated 01.07.2020. In any case, the fact that the respondent no. 4 did not immediately report to this Court that it is incapable of carrying out such surgery but instead went ahead and carried out medical tests on the petitioner, leads to only one conclusion which is of having

W.P.(C) 3604/2020 Page 9 complete apathy on behalf of the respondent no.1 and respondent no. 4 towards the petitioner.

26. In view of the above, it is directed that the respondent no. 1 shall ensure that on the petitioner making himself available before the Medical Superintendent of the Deen Dayal Upadhyaya Hospital, Hari Nagar, Delhi on 24.07.2020 at 11:00 a.m., complete investigation on the petitioner shall be carried out and incase the petitioner is found fit to undergo a surgery, a date thereof shall be fixed and the same be informed to the Court by way of an affidavit.

27. The petitioner also needs to be compensated by the respondent no. 1 and 4 for their utter failure to discharge their duties owed to the citizen; their apathy; and consequent pain and agony suffered by the petitioner.

28. The respondent no. 1 shall also pay cost/damages quantified at Rs. 50,000/- to the petitioner within a week from today. The respondent no. 4 shall also pay cost/damages of Rs. 1 lakh to the petitioner within a period of one week from today. Proof of such payment shall be filed before this Court.

29. List for reporting compliance on 30.07.2020.

                                              NAVIN CHAWLA, J

JULY 22, 2020/rv



W.P.(C) 3604/2020                                                  Page 10