Gauhati High Court
Binoy Deka vs The State Of Assam And 2 Ors on 11 April, 2023
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GAHC010184202014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/320/2014
BINOY DEKA
R/O VILL.- PATGIRI CHUBA, P.O.- DHEKIPARA, P.S.- SIPAJHAR, MOUZA-
LOKRAI, SIPAJHAR, DARRANG, ASSAM- 784145.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM,
HEALTH and FAMILY WELFARE DEPTT., DISPUR, GHY- 6.
2:THE MISSION DIRECTOR
NATIONAL RURAL HEALTH MISSION
ASSAM
SAIKIA COMMERCIAL COMPLEX
CHRISTIAN BASTI
SREENAGAR ROAD
GHY- 5.
3:THE KASH SONAPUR SUB-DIVISIONAL HEALTH CENTRE
REP. BY THE CHIEF MEDICAL AND HEALTH OFFICER
SIPAJHAR
DARRANG.
4:THE DIRECTOR OF HEALTH SERVICES
DISPUR
GUWAHATI-6
5:COMMISSIONER AND SECRETARY
TO THE GOVERNMENT OF ASSAM
SOCIAL WELFARE DEPARTMENT
HAVING HIS OFFICE AT DISPUR
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GUWAHATI- 781006
6:DIRECTOR
OF THE SOCIAL WELFARE DEPARTMENT
HAVING HIS OFFICE AT UZANBAZAR
GUWAHATI-781001
Advocate for the Petitioner : MS. R. S. CHOUDHURY
Advocate for the Respondent : MR. B. GOGOI
: MR. P. SAIKIA
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 11.04.2023
Heard Ms. R. S. Choudhury, the learned counsel appearing on behalf
of the petitioner and Mr. B. Gogoi, the learned Standing counsel appearing
on behalf of the Health and Family Welfare Department. I have also heard
Mr. P. Saikia, the learned Standing counsel appearing on behalf of the Social
Welfare Department.
2. The brief facts of the instant case relates to the daughter of the
petitioner who was born on 22.11.2010. On 14.11.2012, the petitioner who
is the father, took his one and half years old daughter to Khash Sonapur
Sub-Divisional Health Centre to administer the DPT-Booster, Measles 2 nd
OPU-Booster, Vita A 2nd dose at the Anganbadi Centre in village Patgiri
Chuba under Khash Sonapur Sub-Divisional Health Centre. It is relevant to
take note of that this particular vaccine is normally administered to the
infants of the age between 16-24 months.
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3. From the case summary which is enclosed to the affidavit-in-opposition
filed by the Deputy Secretary to the Government of Assam, Health and
Family Welfare Department, the infant child was admitted to the Pediatric
ward GMCH on 16.11.2012 at around 7.40 PM under the observation of
Professor and Head of the Department of Pediatrics, Dr. Abhinandan Das
with a complain of fever for 2 (two) days and abnormal body movement of 5
episodes on that day. As recorded in the case summary, the attendant of the
infant child informed that the infant child had fever for 2 (two) days and
abnormal body movement for 1 (one) day. There was 5 (five) episodes of
abnormal body movement, each lasting for around one minute and also
there was one episode of vomiting on that very day. It was also informed by
the attendant that there was a past history of febrile convulsion 1 (one) year
ago and the H/O DPT vaccination was given on 14.11.2012. At the time of
admission of the infant child, she was provisionally diagnosed to be a case of
Viral Encephalitis or AEFI (Adverse Event Following Immunization). The case
summary further details the various medications and the steps being taken
to carry out the investigation and the treatment so given. It further reveals
that on 05.01.2013, the infant child was discharged with the observations
that the vitals were stable and the patient took food orally. It was also
mentioned that spasticity was present moreover the right side than left and
the patient was unable to walk.
4. It is further relevant to take note of an affidavit filed by the Joint
Director of Health Service, Dr. Binita Goswami on 07.11.2019. From the said
affidavit, it transpires that on the basis of an order dated 01.03.2019 passed
by this Court, a medical board was constituted of a Pediatric, Orthopaedic,
Neurologist and Clinical Psychologist to give the right assessment of the
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health status of the child of the petitioner. The Medical Board was
constituted with (i) Dr. Dulal Kalita, Associate Professor of Pediatrics as
Chairman, (ii) Dr. Partha Sarathi Chakravorty, Associate Professor of
Orthopaedic, Member, (iii) Dr. Mythili Hazarika, Associate Professor of Clinical
Psychology as Member and (iv) Dr. Anirban Mahanta, Assistant Professor of
Neurology as Member. The said Medical Board submitted a report on
09.04.2019. Taking into account the relevance, the findings of the said
Medical Board examination report is extracted hereinbelow:
"On examination:
The child is awake, alert and cooperative, but does not follow commands for
examination.
Psycho diagnostic Evaluation : The child Baby Patgiri was seen on 08.04.2019 in
the Medical Board. She is 8 years 3 months old and not attending school
independently since last 6/7 years. On clinical interview with the child, she could
not respond to the verbal stimuli with verbal responses but with flickering of eye
movement some questions were answered. A structured scale, Vineland Social
Maturity Scale was administered and her social intelligence was found to be 0.9
- "Profound Mental Retardation". Her developmental milestones are below one
year of age (8 months). Her social skills, self help skills, locomotion,
communication and socialization are at the age of 8 months but her
chronological age is 8 years 3 months (99 months). According to clinical findings
and scale her condition is 100% disability as she would need constant
supervision, support and guidance in day to day living skills and to be
independently functioning.
On examination of cranial nerves, her pupils are 3 mm & reacting to light
bilaterally, she has convergent squint of left eye, and there is mild facial
asymmetry. Other cranial nerve functions could not be examined adequately.
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Her motor system examination showed wasting of thigh and leg muscles
bilaterally (right more than left). Tone is increased on right side (spastic).
Muscles strength could not be examined properly as the child is not following
the command but grossly it is around 2/5 on right side and 3/5 on left side.
Deep tendon reflexes are exaggerated bilaterally. Planter reflex is extensor on
right side and indeterminate on left side.
On sensory system examination she responds to pain and deep pressure
stimuli but other modalities of sensation could not examined properly because
the child was not following commands.
On loco motor system examination, her cranium and spine are intact.
There are tendo achilis contracture both side and contracture of right knee
joint. She can sit with crossed legs without support for around two minutes,
but cannot stand and walk without support.
She has speech and language disability, intellectual disability and loco
motor disability with respect to right upper and lower limbs.
Other systemic examination: -
Cardiovascular system : Found normal on examination. Pulse: 86/min, Blood
pressure - 100/70 mm of Hg. 1 st and 2nd heart sounds heard normally. No
added sound (murmurs) heard clinically.
Respiratory system: Found normal on examination. Respiratory rate 20/min.
Normal vesicular breath sounds heard bilaterally. No additional sound heard
over the chest.
Gastro-intestinal system : Found normal on examination. Liver and spleen are
not palpable.
Clinical Impression: A case of right hemipaeresis with profound Mental
retardation due to "Acute disseminated encephalomyelitis (ADEM) with multiple
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disabilities.
Disabilities : 1) Profound mental retardation - 100%
2) Loco motor disabilities with respect to right upper limb arid
right lower limb-90%
N.B: The-disabilities must be reviewed by appropriate authority at the age of
10 years as per Govt. of India guidelines 2018."
5. It is also relevant to take note of that in the said affidavit so filed by Dr.
Binita Goswami, Joint Director, it was mentioned that Adverse Event
Following Immunization (AEFI) was not reported by the parents of the child
at any health facility centre and therefore the matter was not within the
purview of the Health Department as an Adverse Event Following
Immunization (AEFI) case. It was further mentioned that as per the protocol
of Adverse Event Following Immunization (AEFI) case, reporting is
maintained ensuring Adverse Event Following Immunization (AEFI) within 48
hours and this protocol is followed strictly and in the case of the infant child
of the petitioner, this was not reported as Adverse Event Following
Immunization (AEFI) since the parents did not bring the child to any
Government health facility Centre till 1.25 PM of 16.11.2012. In paragraph
No.6 of the said affidavit, it has been mentioned that as per the report of the
Gauhati Medical College Hospital, Neurology Department, it was provisionally
diagnosed that the infant child of the petitioner had Acute Disseminated
Encephalomyelitis due to vaccination. However, it is mentioned in the said
affidavit that the test which was conducted, was not conclusive inasmuch as
only the Cerebrospinal Fluid Examination was done but the chemical
examination was not conducted by the Gauhati Medical College Hospital. It
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was also opined that the matter be referred to the National Adverse Event
Following Immunization (AEFI) Secretariat, New Delhi which is the Expert
Technical Body, Casualty assessment of vaccine related medical issues.
6. It is relevant to take note of that an affidavit-in-reply was filed by the
petitioner on 29.03.2022 wherein it has been mentioned that the petitioner
had taken his infant daughter to the Government health facility on
16.11.2012 at about 1 PM which is well within 48 hours of the event having
occurred and as such, it was the responsibility of the State authorities to
have referred the matter as an Adverse Event Following Immunization
(AEFI).
7. In the backdrop of the above, it is relevant to take note of that the
petitioner herein has sought for adequate compensation from the
respondent authorities as it is the case of the petitioner that it was on
account of the negligence on the part of the respondent authorities which
have resulted in the sufferings that the child of the petitioner has been
endured into. On the other hand, the respondent Health Department had
specifically denied any negligence on their part by stating inter alia that
when the incident was reported, the best available treatment was given to
the child of the petitioner and as such it cannot be a case of negligence.
8. I have heard the learned counsels for the parties at length on this
aspect. There has been galore of judgments relied upon by each party on
the question of entitlement of compensation. Two questions primarily arise
for consideration. First is the question of negligence; i.e. whether there was
any medical negligence on the part of the Respondent Authorities which has
resulted in this unfortunate state of affairs that has led the child of the
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petitioner to continue the life with permanent disability or for that matter
whether the permanent disability of the daughter of the petitioner was
preventable. Secondly, another very relevant aspect which would require
consideration is in relation to a constitutional tort in as much as Article 21 of
the Constitution guarantees right to life which includes the right to live with
human dignity. In respect to the second aspect of the matter adjudging from
the medical reports, this Court is of the opinion that the child of the
petitioner would require a constant assistance throughout her life. This
aspect of the matter however would be dealt with separately at the later
stage by this Court.
9. However as regards the first question as to whether there was any
medical negligence on the part of the Respondent Authorities which resulted
in the present unfortunate situation that the child of the petitioner had been
endured to cannot be decided by this Court without taking an expert medical
opinion as to whether there was any medical negligence in the facts of the
present case. This Court is left with two alternatives in that regard. First is to
either relegate the petitioner to avail the statutory remedies wherein the
aspect of medical negligence can be ascertained and decided. The other is to
exercise the power conferred upon this Court under Article 226 of the
Constitution read with Rule 10 of Chapter VA of the Gauhati High Court
Rules and Order XXVI Rule 10A of the Code of Civil Procedure for scientific
investigation.
10. Under such circumstances, this Court therefore heard the matter on
24.02.2023, 14.03.2023 and 21.03.2023 as to whether a Commission can be
appointed for medical opinion on the question of medical negligence.
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11. The instant writ petition was filed in the year 2014. Innumerable
affidavits have been filed and the matter has been heard on merits on
numerous occasions. Under such circumstances, this Court is of the opinion
that to relegate the petitioner to the Civil Courts or other forums where
adjudication of facts can be ascertained that too after almost a decade have
passed by would be unfortunate and unfair. This Court finds it relevant to
refer to a judgment of the Supreme Court rendered in the case of L. Hirday
Narain Vs. Income Tax Officer, Bareilly reported in AIR 1971 SC 33 wherein
the Supreme Court observed that the High Court after entertaining the
petition and hearing the writ petition on merits ought not to have dismissed
the writ petition on the ground of available statutory remedy.
12. Both the parties have also reached a consensus that to look into the
aspects of medical negligence, a Commission should be constituted of
Neurologist and a Pediatrician. Various names were placed before this Court
on 23.03.2023 and 30.03.2023. This Court after considering the various
names, hereby appoints a Commission in the peculiar facts of the case
consisting of (1) Dr. Ashok Kayal, a well renowned Neurologist who was a
former Professor of Neurology of Guwahati Medical College and Hospital and
(2) Dr. Rashna Das Hazarika who is also a renowned Pediatrician and is a
Senior Paediatric Consultant at Guwahati.
13. The terms of reference for the Commission hereby appointed to submit
their medical opinion are:
(A) Whether on the facts of the present case, the permanent disability of
the child of the petitioner could have been prevented by the Respondent
Health Department?
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(B) Whether there was medical negligence on the part of the Respondent
Health Department which led to the permanent disability of the child of the
petitioner?
(C) What medical remedial steps are required to be taken for the child of
the petitioner to live a life with dignity?
14. The parties are directed to appear before the Commission and place
their respective materials including medical reports etc. on such date as may
be fixed by the Commission so that the Commission is in a position to render
the opinion sought for.
15. The Commission shall submit the report within 2 (two) months from
the date a copy of this order is served upon the members of the
Commission. The Registry is directed to serve a copy of this order to the
members of the Commission so constituted forthwith.
16. The Commission shall have the power to call for all such records as
deemed necessary as well as also call for such witnesses as deemed fit to
arrive at an opinion in terms with the reference so made.
17. This Court fixes an honorarium of Rs.25,000/- to be paid to each of the
members of the Commission which shall be paid by the Department of
Health and Family Welfare, Government of Assam.
18. Further to that the Department of Health and Family Welfare,
Government of Assam shall provide an appropriate place for holding the
Commission and would also provide secretarial assistance. In the
circumstance, if the secretarial assistance is not provided, the Department of
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Health and Family Welfare, Government of Assam shall reimburse such cost
incurred by the members of the Commission on account of secretarial
assistance.
19. List the matter again on 15.06.2023 for report.
JUDGE
Comparing Assistant
