Madras High Court
T.Rajagopal vs The State Of Tamil Nadu on 29 June, 2021
W.P.(MD).No.13326 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.06.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD).No.13326 of 2012
and M.P.(MD).No.1 of 2012
T.Rajagopal ... Petitioner
Vs.
1.The State of Tamil Nadu,
represented by its Principal Secretary,
Department of Public Health and Family Welfare,
Secretariat, St. George Fort,
Chennai.
2.The District Collector,
Kanniyakumari,
Kanniyakumari District.
3.District Medical Officer,
Medical and Rural Health Service,
Kanniyakumari,
Kanniyakumari District.
4.Dr.S.Pirina Sugumar
Surgeon,
Primary Health Centre,
Rajakamangalam,
Kanniyakumari District.
5.Selvi A.Uma Devi,
Nurse,
Primary Health Centre,
Rajakamangalam,
Kanniyakumari District. ... Respondents
1/20
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W.P.(MD).No.13326 of 2012
Prayer: This Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Mandamus, directing the respondents No.1 to pay a
total compensation of Rs.25,00,000/- (Twenty Five Lakhs only) the petitioner.
For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.M.Lingadurai for R1 to R3
Government Advocate
Mr.M.P.Senthil for R4 & R5
ORDER
This writ petition has been filed for the issue of writ of Mandamus
directing the first respondent to pay compensation to the petitioner on the
ground that the petitioner lost his wife due to the negligence on the part of the
respondents.
2.The case of the petitioner is that his wife was admitted for delivery
before the fourth respondent Primary Health Centre, on 25.06.2012 at 06.00
p.m. The petitioner's wife gave birth to a female child, on 26.06.2012, at
about 04.24 a.m. After delivery, there was excessive bleeding suffered by the
wife of the petitioner. The fourth respondent in spite of attending the wife of
the petitioner and administering her with necessary drugs, found that the
victim required a blood transfusion and hence, recommended for shifting the
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W.P.(MD).No.13326 of 2012
wife of the petitioner to Medical College, Asaripallam. There was no
ambulance available in the Primary Health Centre and hence, the Staff Nurse
had to call a 108 ambulance at about 05.15 a.m. Ultimately, the ambulance
reached the Primary Health Centre at 05.45 a.m. The wife of the petitioner
reached the Medical College, Asaripallam, at about 06.30 a.m. She was
admitted and thereafter, she was declared as dead. The cause of death was
attributed to 'postpartum haemorrhage'.
3.According to the petitioner, he lost his wife only due to the delay
caused due to the non availability of the ambulance and by the time his wife
reached the Medical College, the situation became very serious and she was
declared dead. Therefore, the petitioner has approached this Court, seeking
for compensation.
4.The third respondent has filed a counter affidavit and the relevant
portions in the counter affidavit are extracted hereunder:
“4. I submit that the averments that after
intimation about the excessive blood, there was no
Medical help from the above said duty Doctor and
Nurse are denied. It is clear that the 4th
respondent and 5th respondent were with the
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W.P.(MD).No.13326 of 2012
petitioner's wife throughout in the Labour room
and they noted the status of the patient after the
delivery. I humbly submit that they have given the
adequate treatment for the patient immediately
after the delivery so as to control the bleeding. It
is false to state that the patient was not allowed to
shift over to the Asaripallam Medical College
Hospital. As a matter of fact, the duty Doctor and
Nurse have jointly planned to refer the patient to
Kanniyakumari Medical College Hospital.
Asaripallam and there after they have made a call
to the Ambulance, i.e., 108 Ambulance over phone.
In furtherance of their call, the 108 Ambulance
came immediately. It is submitted that 108
Ambulance is not available in PRIMARY HEALTH
CENTRE. The PRIMARY HEALTH CENTRE has
only Hospital on Wheels Vehicle Van which
functions only in day time by providing medical
facilities to remote area people which is not an
ambulance it only a mobile van which is used to
travel to remote area by medical personnel which
functions from 9.30 A.M. to 4.30 P.M.
5.I humbly submit that at the time of
boarding the patient into the Ambulance, it was
noted that she was stable. Further, while the
petitioner's wife was alighted from Ambulance at
Hospital, Asaripallam, it was reported that she
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W.P.(MD).No.13326 of 2012
was stable. Thereafter, she was admitted at
Medical College Hospital, Asaripallam, where she
was declared as dead. In connection with the
death of the petitioner's wife, F.I.R. was registered
in Crime No.332/2012 on the file of the
Rajakamangalam Police Station, Kanniyakumari
District by the petitioner.
........
7.With reference to averments made in
paragraphs 7 to 10 of the affidavit. I humbly
submit that according to abstracts made in the
book written by Dutta, it is no doubt that 4 to 6 %
cases can have Postpartum Haemorrhage. The
common cause for the maternal death after the
delivery in India is Haemorrhage which account
for 38% causes of maternal death.
Therefore, it is crystal clear that the cause
of death of the petitioner's wife is Postpartum
Haemorrhage only. The duty Doctor and Nurse
i.e., 4th and 5th respondents had done their duty to
their level best to the petitioner's wife. In these
circumstances, the allegation as against the
respondents in more particularly respondents 4 &
5 is not acceptable.”
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W.P.(MD).No.13326 of 2012
5.The fourth respondent has also filed a counter affidavit and the
relevant portions are extracted hereunder:
7.I submit that the further averments in para
No.3 as if the petitioner's wife Kalaiselvi was
admitted at 6.00 p.m. in Primary Health Centre is
absolutely false as she was admitted only at 9.30
p.m. on 25.06.2012. It is true that she gave birth to
a female child at early morning 4.24 a.m. on
26.06.2012. After the delivery of placenta at
around 4.45 a.m., I noticed the bleeding was little
bit excessive than the normal cases. However, the
bleeding was approximately within 500 ml. As
stated above since bleeding was excessive, I
immediately administered the necessary drugs as
well as the first aid which was required to be
given. The following treatment was given
immediately:
– Uterine massage was given and per Vaginal
examination was done through speculum to rule
out any tear, but there was no tear, the placenta
and its membranes were expelled entirely.
– Inj. Oxytocin 10 times (2 ampoules) Intra
muscularly given.
– Intra Venous fluid, Ringer lactate 1 Pint was
already on flow with Inj. Oxytocin 5 units
through 18 guage needle.
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W.P.(MD).No.13326 of 2012
– Inj. Oxytocin 10 units intravenously in 500 ml
R.L. 2nd Pint was infused at the rate of 60 drops
per minute.
– The patient was catheterized and drained out
clear 300 ml of urine.
– Inj. Methergine 2 ampoules I.V given.
– Tablet misoprost 800 mcg (4 tablets of 200 mcg)
were kept per Rectum.
– Inj. Ampicillin 500 mg. I.V. After Test Dose
given.
– Inj. Gentamycin 80 mg I.V.given.
8.I submit that however, in order to avoid
any untoward incident as a precautionary measure,
I informed the relatives of the victim including the
mother and husband of the deceased for shifting
the patient to the Medical College, Asaripallam for
blood transfusion as well as for further
management. Since there was no ambulance in
Primary Health Centre, the staff nurse who has
been arrayed as 5th respondent herein called the
108 ambulance at around 5.15 a.m. The
ambulance reached the Primary Health Centre at
around 5.45 a.m. and the patient was immediately
shifted to the Government Medical College,
Asaripallam. In fact, the patient was stable at the
time of the patient was stable at the time of
shifting and she was communicating with the
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W.P.(MD).No.13326 of 2012
relatives. The condition of the patient was stable
which could be discerned from the pre-hospital
care record maintained by the staff of emergency
management and Research Institute, the 108
ambulance. In such circumstances, it is not known
on what basis the allegation has been made as if
the death of the petitioner's wife is due to the
negligence of myself and the 5th respondent.
9.I submit that the further averments in para
No.4 that myself as well as the staff nurse did not
provide medical help due to callousness is totally
baseless and false. As stated above, in fact, we
have immediately provided the necessary medical
care for the active management of the patient. As
such, it is totally unjust and baseless to allege that
we have not provided the medical help. The
further averments in para No.4 that the petitioner
and his relatives tried to shift the patient to the
Asaripallam Hospital and we did not allow on the
patient that there was not ambulance driver is
absolutely false, untenable and contrary to
records. In fact, it was the 5th respondent on my
instructions informed the ambulance and only
thereafter, the ambulance rushed to the Primary
Health Centre, from Kottar, Nagercoil Town. In
such circumstances, the above averments including
the averments in para Nos.5 & 6 that we did not
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W.P.(MD).No.13326 of 2012
allow them to transport is totally false. It is
submitted that we did not refuse any one to shift
the patient to any other hospital. We only
contacted 108 ambulance through phone to shift
the patient to Kanniyakumari Medical College
Hospita, Asaripallam. It is important to state here
that, in the last sentence of the 5th paragraph of the
affidavit it has been stated that the deceased was
taken to Asaripallam Hospital at 6.30 p.m., which
is an error, in fact, the deceased was taken in the
ambulance by 5.45 a.m. itself.
10.I submit that the averments in para No.7
are relating to legal issues which I am not
disputing. The averments in para No.8 are relating
to Medical management in case of Postpartum
Haemorrhage (PPH) is concerned, I have
meticulously followed all the issues and there is
absolutely no negligence on my part in treating the
deceased. I have exercised sufficient due care
which any ordinary prudent doctor would normally
do and there is absolutely no negligence on my
part. Besides, within few minutes, I have taken all
steps to shift the patient to Asaripallam Medical
College and at that time, the patient was stable. In
such circumstances the petitioner has completely
misconstrued the whole issue and the very writ
petition is untenable. It is crucial to state here that
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W.P.(MD).No.13326 of 2012
except few allegations against me, which are also
very vague, the petitioner himself has not stated
that the treatment given by me are not correct.
Besides, there is absolutely no averments (or)
documents placed before the Hon'ble Court to
substantiate by way of any opinion. In such
circumstances, the whole writ petition is filed on
surmises and presumptions.”
6.When the matter came up for hearing, on 29.04.2021, this Court
passed the following order.
“The learned counsel appearing for the
petitioner brought to the notice of this Court the
earlier order passed by this Court in W.P.
(MD).No.2721 of 2017, dated 01.02.2021,
wherein, this Court had granted compensation to
the tune of Rs.5,00,000/- (Rupees Five Lakhs only)
relying upon G.O.Ms.No.395, dated 04.09.2018.
If the facts of the present case is also confined to
the Government Order, there is no requirement for
this Court to go into the issue of negligence. It
will be possible to give necessary directions based
on the Government Order and the earlier order
passed by this Court. The learned Government
Advocate shall take instructions in this regard.
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W.P.(MD).No.13326 of 2012
2. Registry is directed to post this case
under the caption “For Orders” on 09.06.2021.”
7.When the matter was taken up for hearing today, the learned
Government Advocate based on the written instructions received from the
Deputy Director, Health Services, Nagercoil, submitted that the petitioner
cannot be given compensation as per G.O.Ms.No.395, Health and Family
Welfare (H1) Department, dated 04.09.2018, since the death of the
petitioner's wife was not caused due to negligence.
8.Before proceeding further to deal with the issue raised in the present
writ petition, it will also be beneficial to extract the relevant portion in the
Government Order hereunder:
“G. Reiterations:
i. The extent of coverage shall apply to all
cases of doctors negligence in all surgical
procedural and other medical activities in
the Government Institutions as per the
Government Order.
ii. In all the cases claiming compensation with
the treating doctors(s) as respondent(s) or
in cases against institution alleging lapse by
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W.P.(MD).No.13326 of 2012
the medical officer(s) concerned / aggrieved
Medical Officer(s) should apply to the
appropriate committee, in writing, through
proper channel, duly marking an advance
copy.
iii. Tamil Nadu Government Doctors Corpus
Fund will cover limitation in all judicial
forums, from the lowest to the highest, in
cases against lapse of Medical Officer(s).”
9.Heard Mr.T.Lajapathi Roy, learned counsel appearing for the
petitioner, Mr.M.Lingadurai, learned Government Advocate, appearing for
the respondents 1 to 3 and Mr.M.P.Senthil, learned counsel appearing for the
respondents 4 & 5.
10.This Court has carefully considered the submissions made on either
side and the materials available on record.
11.This is an unfortunate case, where, the petitioner lost his wife after
she delivered a child, due to excessive bleeding and the cause of death is
mentioned in the counter affidavit filed by the third respondent as 'postpartum
haemorrhage'. It could be ascertained from the counter affidavit filed by the
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W.P.(MD).No.13326 of 2012
fourth respondent that nearly 4 to 6 percent of the cases can encounter
'postpartum haemorrhage' during delivery and it is a common cause for
maternal deaths after delivery in India. Even in 'DC.Dutta's Text Book of
Obstetrics' this has been explained and it has been mentioned that nearly 23
percent of the persons, who suffer from such a haemorrhage also die due to
complications. It is clear from the above that the condition that was suffered
by the petitioner's wife is not uncommon and unfortunately the wife of the
petitioner fell under the category of 4 to 6 percent cases, who undergo such
complications.
12.The next issue that has to be taken into consideration is as to
whether there was any negligence on the part of the fourth respondent in
attending to the petitioner's wife when she was suffering from excessive
bleeding. The counter affidavit filed by the fourth respondent shows that the
fourth respondent had administered necessary drugs as a first aid to the
petitioner's wife and attempts were made to bring the situation under control.
This process was undertaken between 04.45 a.m. to 05.15 a.m. In spite of the
same, the bleeding never stopped and therefore, the fourth respondent had
advised the victim to be shifted to the Medical College, Asaripallam for blood
transfusion. This is where the entire problem started. There was no
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W.P.(MD).No.13326 of 2012
ambulance available at the Primary Health Centre and the Staff Nurse
belonging to the Primary Health Centre was desperately attempting to get an
ambulance by calling 108 and the ambulance reached the Primary Health
Centre only around 05.45 a.m. In this process nearly 30 minutes of precious
time was lost. Thereafter, the petitioner's wife was shifted to the Medical
College only at about 06.30 a.m. By then, nearly 1 hour and 15 minutes had
passed. Unfortunately, when she was tested by the Doctor at the Medical
College, they declared her dead.
13.It is clear from the above that there was a delay in shifting the
deceased from the Primary Health Centre to the Medical College,
Asaripallam. When it comes to saving life, every second counts and delay by
even few minutes can cause the death of a person. Therefore, when it comes
to medical emergency, delay can never be condoned like how leniently we
condone in Courts. Every Primary Health Centre is supposed to have an
ambulance readily available to shift patients in case of emergency. It is an
admitted case that the Primary Health Centre was regularly dealing with
delivery cases and they have to expect an emergency at any time and they
cannot afford to run a Centre without ambulance.
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W.P.(MD).No.13326 of 2012
14.At this juncture, this Court has to take note of the Judgment of the
Hon'ble Supreme Court in the case of P.B.Khet Mazdoor Samity Vs. State of
West Bengal reported in AIR 1996 SC 2426. The relevant portions in the
Judgment are extracted hereunder:
15.We have considered the aforesaid
submissions urged by Shri Dhavan. Apart from the
recommendations made by the Committee in that
regard and the action taken by the State
Government in the memorandum dated August 22,
1995 on the basis of the recommendations of the
Committee, we are of the view that in order that
proper medical facilities are available for dealing
with emergency cases it must be that:
1. Adequate facilities are available at the
Primary Health Centres where the patient
can be given immediate primary treatment
so as to stabilize his condition;
2. Hospitals at the district level and Sub-
Division level are upgraded so that serious
cases can be treated there;
3. Facilities for giving Specialist treatment are
increased and are available at the hospitals
at District level and Sub-Division level
having regard to the growing needs;
4. In order ot ensure availability of bed in an
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emergency at State level hospitals there is a
centralised communication system so that
the patient can be sent immediately to the
hospital where bed is available in respect of
the treatment which is required;
5. Proper arrangement of ambulance is made
for transport of a patient from the Primary
Health Centre to the District Hospital or
Sub-Division hospital and from the District
Hospital or Sub Division hospital to the
State hospital.
6. The ambulance is adequately provided with
necessary equipment and medical
personnel;
7. The Health Centres and the hospitals and
the medical personnel attached to these
Centres and hospitals are geared to deal
with larger number of patients needing
emergency treatment on account of higher
risk of accidents on certain occasions and
in certain seasons.”
15.It is clear from the above Judgment that Primary Health Centres are
expected to possess an ambulance to meet an emergency. This Judgment was
also subsequently followed by this Court in the case of Thangapandi Vs.
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W.P.(MD).No.13326 of 2012
Director of Primary Health Services reported in (2011) 1 MLJ 1329.
16.In view of the above, even though this Court does not find any
negligence on the part of the fourth respondent insofar as the treatment that
was given to the petitioner's wife, there was definitely a delay in shifting the
petitioner's wife from the Primary Health Centre to the Medical College,
Asaripallam. Since the petitioner's wife was suffering from heavy bleeding,
this delay had ultimately proved to be fatal resulting in her death. In Medical
Parlance, it is referred to as golden hour. R.Adams Cowley who came up with
this term called this time as the time between life and death.
17.It is for this purpose, G.O.Ms.No.395, dated 04.09.2018, was
brought into force by the Government by creating a Corpus fund. The
Government Doctors contribute a certain amount towards this Corpus Fund
and whenever a case arises for payment of compensation, the amount can be
paid from this Corpus fund without unnecessarily burdening any Doctor or
Government Institution. Considering the entire facts and circumstances of
the case, this Court is of the considered view that the case of the petitioner
will fall within the requirements of Sub Clause II of Clause 4(G). Hence, the
petitioner is entitled to be paid compensation under this Government Order to
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W.P.(MD).No.13326 of 2012
the tune of Rs.5,00,000/- (Rupees Five Lakhs Only).
18.In the result, there shall be a direction to the first respondent to pay
a sum of Rs.5,00,000/- (Rupees Five Lakhs only) to the petitioner from the
Corpus fund created under G.O.Ms.No.395, dated 04.09.2018, within a
period of eight weeks from the date of receipt of a copy of this order.
19.This petition is allowed accordingly. No costs. Consequently,
connected miscellaneous petition is closed.
29.06.2021
Internet : Yes/No
Index : Yes/No
TM
NOTE:
In view of the present lock down owing to COVID-19 pandemic,
a web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct
copy, shall be the responsibility of the advocate/litigant
concerned.
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W.P.(MD).No.13326 of 2012
To
1.The State of Tamil Nadu,
represented by its Principal Secretary,
Department of Public Health and Family Welfare,
Secretariat, St. George Fort,
Chennai.
2.The District Collector,
Kanniyakumari,
Kanniyakumari District.
3.District Medical Officer,
Medical and Rural Health Service,
Kanniyakumari,
Kanniyakumari District.
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W.P.(MD).No.13326 of 2012
N.ANAND VENKATESH, J.
TM
Order made in
W.P.(MD).No.13326 of 2012
29.06.2021
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