It warms the innermost cockles of my heart to see that the Madras High Court has in an exceptionally brilliant, brief, bold, blunt and balanced judgment titled Tamil Selvi v. State of Tamil Nadu & Ors in Writ Petition (MD) No. 2721 of 2017 delivered recently on February 1, 2021 has commendably directed the State of Tamil Nadu to provide a compensation of Rs 5 lacs to a Dalit Petitioner whose daughter had died as a result of complications that arose after administration of anesthesia in a government hospital. It must be mentioned here that a single Judge Bench of Justice GR Swaminathan of Madras High Court heard the matter and held that, even though there was no medical negligence on behalf of the anesthetist, there exists an obligation on the part of the government to disburse ex-gratia to the affected party if the patient was admitted to a government hospital and suffered an injury or death which is not anticipated to occur in the normal course of events. Very rightly so!

To begin with, it is first and foremost stated about the prayer made by the petitioner by stating that:
Writ petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, to direct the respondents 1 to 6 to pay a just and reasonable compensation of a sum of Rs.20,00,000/- (Twenty Lakhs Rupees) to the petitioner for the death of the petitioner's daughter Sangeetha who died on 05.07.2016 consequent to the cursory negligent treatment given by the respondents 8 to 10 at the fifth respondent Government Hospital."

To put things in perspective, while elaborating on the facts of the case, it is then stated in para 2 that:
The petitioner's daughter Sangeetha aged about eight years was suffering from tonsils. She was admitted in Government Hospital, Aruppukottai on 07.04.2016 for treatment. The child was examined and it was suggested that she must undergo surgery. She was an inpatient on 13.04.2016 for this purpose. For preparing the child for surgery, anesthesia was administered by the 9th respondent Anesthetist. Unfortunately, the child developed some complications and she was shifted to Rajaji Government Hospital, Madurai for further treatment. The child went into coma and eventually passed away on 05.07.2016. Alleging that the death of the child was purely due to medical negligence on the part of the private respondents, the petitioner has filed this writ petition demanding payment of compensation."

It cannot be denied that the death of the child in the Rajaji Government Hospital in Madurai was purely due to medical negligence on the part of the private respondents as stated above in para 2. So how can the Government Hospital escape from itself being held accountable for its lapses? It has to be held accountable in such cases of pure medical negligence. It is held also as stated in this noteworthy judgment which we shall discuss later in considerable detail.

As it turned out, it is then stated in para 3 that:
The prayer made in the writ petition is opposed both by the official respondents as well as the private respondents. They have also filed their counter affidavits."

Be it noted, it is then conceded by the single Judge Bench of Justice GR Swaminathan of Madras High Court in para 4 that:
I carefully considered the rival contentions and went through the materials on record. There is no dispute that the petitioner's child was admitted only for the purpose of tonsil surgery and nothing else. It is also not in dispute that even before the surgery could be performed on the child, the child developed complications following the administration of anesthesia. The learned counsel for the petitioner would strongly allege that but for the negligence on the part of the anesthetist and other doctors, the child would not have died."

To be sure, it is then pointed out in para 5 that:
The issue of medical negligence requires a factual determination. It is seen that following the complaint lodged by the petitioner, an enquiry was in fact conducted. The report was submitted by four member enquiry committee on 17.06.2016. It clearly states that there was no medical negligence on the part of the doctors. Then, the question arises as to how the death had occurred. It appears that the child was administered a drug known as Propofol."

On the contrary, it is then stated in para 6 that, "The learned counsel for the private respondents has made available the literature on the subject. It is seen therefrom that the propofol is not an intrinsically dangerous drug and it is very much administered to children above 3 years of age. It states however that there may be implications for children with mitochondrial diseases. There is nothing on record to indicate that the deceased child had the said decease and that it was omitted to be noticed by the doctors in question."

It is worth noting that it is then conceded in para 7 that:
There are always instances when a drug does not accord with the body of the patient and that leads to unfortunate complications. The case on hand appears to be one such. Therefore, I do not find any ground to hold that the respondent anesthetists have committed any act of medical negligence."

Most significantly and most remarkably, what forms the cornerstone of this notable judgment is then envisaged in para 8 wherein it is put forth that:
Even though I may reject the allegation of the petitioner as regards medical negligence, still, there is no answer to the question regarding compensation. The petitioner belongs to Hindu Pallar community. It is a notified scheduled caste community. Her child was admitted in a Government Hospital for tonsil surgery. The learned counsel for the respondents would state that such surgeries are regularly performed in Government Hospital, Aruppukottai. The petitioner's child should have been discharged after successfully conducting surgery. But what the petitioner got was only the dead body of her child. Neither the petitioner nor her child was at fault.

When a patient is admitted in a government hospital for treatment and he/she suffers any injury or death which is not anticipated to occur in the normal course of events, even in the absence of medical negligence, the government is obliged to disburse exgratia to the affected party. In the case on hand, liability has to be fastened on the government. Since the institution happens to be the Government institution, the Government of Tamil Nadu will have to necessarily take consequence.

My attention is drawn to G.O(Ms)No.395 dated 04.09.2018 whereby a corpus fund has been created by the Tamil Nadu Government. It appears that every Government doctor contributes certain sum of money towards this corpus fund and whenever compensation is directed to be paid by the courts, amount will be drawn from this fund and paid. Considering the overall circumstances, I am of the view that the petitioner deserves to be paid a sum of Rs.5.00 lakhs as compensation. The said amount shall be paid by the department/Government from the said fund. Such payment will be made to the petitioner within a period of eight weeks from the date of receipt of copy of this order. Since the enquiry conducted by the department itself had exonerated the private respondents from any charge of negligence, the question of recovering the said amount from their salary will not arise."

Finally, it is then held in the last para 9 that, "The writ petition is allowed on these terms. No costs."

All said and done, this learned, latest, laudable and landmark judgment leaves no room for doubt that when a patient is admitted in a government hospital for treatment and he/she suffers any injury or death which is not anticipated to occur in the normal course of events, even in the absence of medical negligence, the government is obliged to disburse exgratia to the affected party. This is stated in para 8 which forms the bedrock of this extremely brilliant and commendable judgment and which must be implemented in totality. It is also made absolutely clear in this highly commendable judgment that the petitioner deserves to be paid a sum of Rs.5.00 lakhs as compensation.

Needless to say, there is no reason as to why this should not be implemented promptly as directed in this notable judgment by a single Judge Bench of Justice GR Swaminathan of Madras High Court. It is also rightly pointed out that the said amount shall be paid by the department/Government from the said fund. It is also rightly directed that such payment will be made to the petitioner within a period of eight weeks from the date of receipt of copy of this order. What also cannot be missed out here is that since the enquiry conducted by the department itself had exonerated the private respondents from any charge of negligence, the question of recovering the said amount from their salary will not arise as has been stated also commendably in para 8 of this notable judgment.

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh