Author Name:   rahulkumar

The article is based upon BRD Hospital tragedy, happened in August, 2017.

B.R.D. Hospital Tragedy Existence of Res Ipsa Loquitur Over U.P. Government’s Reasonable Justification

Abstract
Whether B.R.D. medical hospital tragedy was an accident or a case of medical negligence of hospital administration and doctors or was a result of continuous negligence of the government authorities? Several factors and discrepancies are leading to questions like what was the immediate cause that led to the manslaughter, was it a lack of oxygen or a deadly disease like Japanese Encephalitis? Indeed, whatever the cause, death of 30 children in 48 hours and 63 in 5 days is an alarming call as it can’t be considered as a ‘let it be situation’ by any one claiming it to be merely an expected accident. A look at the history of the hospital suggests a series of controversies including death tolls especially of children. So, why didn’t anything change? Was it merely because the Uttar Pradesh government kept a closed eye or was it a consequence of a disease too deadly to be cured? When one looks at the data on death from 2010 to 2017 the laxity is apparent whatever be the ‘reasonable’ excuses taken by the government. The statements of the parents of the deceased should also be taken into consideration as it can reveal the truth which may not come outside due to corruption. Politicisation of the tragedy by the leaders as denial of shortage of oxygen at first stage and admission of the same fact by the health minister Siddharth Nath Singh at second stage. The paper will look into the issue and also examine the facts discussing whether it is a case of Res Ipsa Loquitur where the things are speaking for itself or we need to explain, how the tragedy has been happened, as in the case of Res Ipsa Loquitur the plaintiff doesn’t know how the negligent act was done. The paper will also examine that whether the tragedy falls under criminal or tortious liability. We would also analyse the damage suffered by the deceased family and exemplary damages that should be given by the government to the family and punishment for relevant authority if possible.

Background
The state running Baba Raghav Das Medical Hospital and College, Gorakhpur is a tertiary care centre that covers around 3 km2 of area around Gorakhpur region. It attracts a huge number of poor people from Bihar, Nepal and East Uttar Pradesh. It is popularly known for the treatment of encephalitis as the region often reports a huge number of cases of encephalitis especially during monsoon season’. B.R.D. Hospital is familiar to the gravity of the disease as since 1978, there is an average of 200 deaths per bed. ‘According to a Right to Information reply, the hospital administration admitted that from 2009 to 2011, 3,745 children had died in the hospital. Further the reports have also revealed some hidden loop holes in the system as the incubator, pulse oximeter and infant ventilators were out of order’. According to a report, the hospital treats over 60% of the encephalitis cases in India and receives 2500-3000 patients annually.

In August 2017, the hospital suddenly attracted the attention of national and international media as it addressed an allegedly ghastly manslaughter wherein around 30 children died in 48 hours and 63 in 5 days due to the shortage of oxygen or Japanese Encephalitis. The District Magistrate of Gorakhpur, Mr. Rajeev Rautela confirmed that there was a shortage of oxygen which happened due to the ‘outstanding payment of Rupees 63,65,702 lakh towards the oxygen supplier company Pushpa Sales Pvt Ltd’. The hospital administration admitted that the oxygen supply was halted, however they denied it as the reason behind the deaths. As the News Laundry published that most of the death happened on 10th and 11th August 2017 when the oxygen was halted. The parents of the deceased also confirmed that there was a shortage of oxygen during those 48 hours. At first glance itself, the tragedy looks unreasonable as the death tolls are quite huge. The maxim ‘Ubi Jus IbiRemedium’ states where there is a wrong there is a remedy. So, keeping this maxim in the mind there must be remedy for this tragedy also. The remedy should be analysed on the basis of the damage suffered by the parents of the deceased children and as an exemplary damage or punishments that teach lesson that such tragedy doesn’t happen again.

Discussion

Medical Malpractice of The Hospital

The tragedy prima facie imposes accountability over the hospital towards the state and responsibility towards the parents of the deceased. Looking at the magnitude of tragedy, it looks like a case of Res Ipsa Loquitur where the act itself shows negligence on the part of hospital administration. In the case of Savita Garg, it was stated that if a hospital fails to provide fundamental facilities like oxygen it would amount to medical malpractice. So, taking this statement into consideration, the failure of B.R.D. hospital to provide a basic facility like oxygen which is the fundamental need of a patient having Japanese Encephalitis would amount to medical malpractice as the shortage of oxygen was confirmed by the D.M. of the district and admitted by the hospital administration too. The doctors were well awareof the needs and symptoms of disease Japanese encephalitis as the hospital is centre for the treatment of the said disease. They would also know that oxygen support is an important part of the treatment, however they ignored the fact that they have outstanding payment toward the company Pushpa Sales Pvt Ltd and the fact that thecompany can anytime withdraw the oxygen supply. ‘According to Pushpa Sales Pvt Ltd, the company sent many letters to complete the outstanding payment and warned about the withdrawal of supply too’, but neither the administration nor the doctors showed any concern over this. If they didn’t had fund to complete the payment then they needed to consult to the relevant authority regarding this or to make any provision so that in case of emergency the hospital must have adequate supply of the oxygen. But in a negligent manner, they didn’t take any of the precautions and kept silence, and finally the tragedy happened. After looking into the fact of the case, we can say that there was knowledge on the part of the doctors about the tragedy but they acted very negligently. ‘According to a report of ICMR under Japanese Encephalitis control programme in U.P. especially in Gorakhpur, only 5 to 10% of cases were of Japanese Encephalitis. Most of the deaths happens due to poor management of intensive care unit and having untrained staffs’. According to a senior consultant (paediatrics) at Red Cross Hospital, New Delhi, Dinesh Kapil, new born babies don’t suffer from AES (acute Encephalitis syndrome), he listed out that all other babies were in need of expert emergency care, those cases are very critical and need continuous supply of ventilation. The data says among 13 children that died on 12th August, only one died due to AES. The children were suffering from other diseases too like pneumonia, sepsis and swine flu. So, claiming only Encephalitis as the reason behind the deaths in the hospital administration stands unreasonable.

Medical Negligence By The Doctors

In the case of R v. Admando, where the supply of oxygen was discontinued during an eye operation and it was not noticed by the defendant, The House of Lords held that the defendant breached the duty of care toward the plaintiff and convicted the defendant for manslaughter. Here, in this case The House of Lords talked about two fundamental elements, that are- 1. whether the doctors had duty of care towards the plaintiff? 2. Whether the doctors breached the duty of care? Now, here in the present case, can we derive those two elements? Taking the case Donoghue v. Stevenson into consideration where it was stated that you have to love your neighbour but you should not injure your neighbour and Lord Atkin also defined the term ‘neighbour’ in the case as everyone is your neighbour who would be directly or closely affected by your act. Now, assessing all the elements we can say that in the present case the patients were neighbour of the doctors and hospital administration and they had duty of care toward patients to provide basic care but they breached the duty of care. Now the question arises here whether the negligence act was causa causans to the tragedy? Omission of taking any precaution for any emergency knowing about the facts that any time the company would withdraw the supply of oxygen, would come under causa causans as their omission of taking any step to avoid the tragedy could directly affect the life of the patients. The criminal liability of the doctors and administration in the present case can be brought under the following provisions:
1. “Causing death by rash and negligent act under section 304A of IPC
2. Causing grievous hurt endangering life under section 338 of IPC
3. Causing hurt endangering life under section 337 of IPC”

These sections of IPC don’t require intention on the part of the defendant. The facts of this case themselves show rashness and negligence on the part of the doctors and hospital administration. Knowing the fact that in monsoon season cases of Japanese Encephalitis increases rapidly and one of the most fundamental needs of patients is oxygen support, they should have confirmed the status of contract between the hospital and the oxygen supplier company Pushpa Sales Pvt Ltd, and still they didn’t pay any attention over the issue and the tragedy occurred. This case has all those essential ingredients those are necessary for holding the doctors and hospital liable under sections 304A, 338, 337 of IPC as there are many deaths, and the deaths caused due to negligence act of the doctors and administration and the act doesn’t come under culpable homicide.

Role of The State Government

The hospital is a government hospital and it is operated by the state itself or by the authority employed by the state. In the case of a public property, if anything wrong happens inside the property then state would be answerable for the wrong. Now let’s try to find out the role of the state in this tragedy. If we look into the facts of the present case we can derive the role of the state in the tragedy as being negligent. First let’s try to understand the truth behind the worst history of the hospital having this huge amount of death tolls. ‘Havoc of Encephalitis in Uttar Pradesh is an annual affair as it generally claims more than hundreds of lives every year. According to a report of directorate of national vector borne disease control programme, around 26,686 cases of Encephalitis were reported in U.P. from 2010 to 2017 and more than 4,400 of those patients died eventually.’ The question arises here that what did the government of U.P. learn from these huge numbers of deaths, did they make any provision to avoid these deaths? The present tragedy answered it as ‘No’. Then what could be the reasons behind that? ‘The WHO protocols have already prescribed a vaccine but it is an unsaid norm of government to pass and clear the bill and malpractice and manipulation at every stage from the tendering process.’ Secondly, let’s analyse the status of contract between the hospital and Pushpa Sales Pvt Ltd. The outstanding payment of 63,65,702 lakh is not a penny, it is too huge that hospital is unable to manage it by itself. It must have been in the knowledge of the state about the outstanding payment as the oxygen supplier company had sent many letters regarding the payment. However, the state didn’t raise the fund to complete the outstanding payment and the supply was disrupted by the supplier company. ‘According to DR. Harjit Singh Bhatti (president of the resident doctor association at AIIMS) claimed that the tragedy happened due to infrastructure lapse and failure of government.

In the case of Achut rao Haribhau Khodwa v. State of Maharashtra, where the doctors left towel in patient’s abdomen, the Supreme Court said that running a hospital could be a welfare activity by the government but not a sovereign function. So, the state as an employer is liable to pay damages for the negligence of the doctors and the hospital administration. Again, in the case of State of Haryana v. Santra, where the doctors had done an unsuccessful tubectomy operation resulting in birth of an unwanted child. The court held that the state is under an obligation to pay damages for the negligence of the doctors. The ratio of these two cases will help to hold the state government of Uttar Pradesh liable for the negligent act of the hospital administration and the doctors under the concept of vicarious liability.

Conclusion
From the discussion above, we may conclude that there is no excuse for the government and the hospital administration to be not responsible for this tragedy. The facts of the tragedy itself are enough to prove malpractice and negligence on the part of the hospital and government both. We have looked upon the history of the hospital and it helps us to consider BRD medical hospital as being aware of the issue and yet being negligent on many occasions. Children are the future of our country, if they are not safe in their own country and being killed due to the negligence of the government and hospitals, we can never assume India as a healthy and happy country. Till now, we have gone through the relevant sections of Indian Penal Code, tried to analyse the case on the basis of medical negligence and also cited some relevant cases to help the argument addressed. So, under sections 337, 338 and 304A of IPC, the hospital (including the doctors) should be held liable for the medical negligence and endangering the lives of the patients due to their rash and negligent act and should be given the adequate punishment under the law along with suspension of their licenses and debarring them from further practice. Also looking at the decision mentioned,the state of Uttar Pradesh should also be held liable on the principle of master servant relationship, and pay damages to the family of deceased. The role of health minister of the state in such situations must be assessed. This magnitude of damages is necessary as it will set an example for the hospital and the government officials to avoid any such tragedy in future.

Bibliography
Statute Referred:
1. The Indian Penal Code, 1860

Books Referred:
1. Kd Gaur,Indian Penal Code, 6th Edition
2. Dr. J.N. Pandey,Law Of Torts, Central Law Publication
3. R.K. Bangia, The Law Of Torts, Revised And Updated Edition

Cases Referred:
1. Smt. Savita Garg V. The Director, National Heart Institute, (2004) Air Scw 5820
2. R V. Admando, (1993) 4 All Er 935.
3. Donoghue V. Stevenson,(1932) Ac 562,579
4. Achutrao Haribhau Khodwa V. State Of Maharashtra,(1996) 2 Scc 634
5. State Of Haryana V. Santra,(2000) 5 Scc 182

ISBN No: 978-81-928510-1-3
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