PRATAP KUMAR NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This writ petition has been filed with a prayer to direct opposite party No.1-State of Orissa, represented by the Secretary to Government of Orissa, Department of Health and opposite party No.2- Director of Red Cross Blood Bank, Municipal Hospital, Bhubaneswar to pay a compensation of Rs.20,00,000/- to the petitioner. Further prayer is for a direction to opposite party No.4-Managing Director, NeelachalHospital Pvt. Ltd, Bhubaneswar to pay all the expenses which were spent by the petitioner for treatment of the petitioner s son.

(2.) Petitioner s case in a nutshell is that his son Adarsh was born on 21.10.2007 in Kalapathara Public Health Centre in the district of Nayagarh by a normal delivery. One day after the delivery, it was found that the baby has no anal canal. For proper treatment, the mother of the baby went to the nearest Public Health Centre where she was advised to move to Khurda Hospital as there was no paediatric specialist in the said P.H.C. In Khurda Hospital being advised by Dr. Jayaram Patra she contacted Dr. Subrat Mohanty, who was a Paediatric Surgery Specialist and as per the advice of Dr. Mohanty, she went to Neelachal Hospital, Bhubaneswar. The petitioner s son was admitted in Neelachal Hospital on 24.10.2007 and was operated on 25.10.2007. The operation was successful and the baby stayed there for about 10 days. At the time of discharge, Dr. Mohanty advised for check up of the baby every month and next surgery was suggested to be taken up after the weight of the baby is reached 9 K.G. Before the 1 st surgery was taken up one bottle of blood was given to the baby which was collected from RedCross Blood Bank, Municipal Hospital, Bhubaneswar by depositing a sum of Rs.450/. The baby was again admitted to the Neelachal Hospital on 18.8.2008 for second surgery. The baby being found under weight, the Doctor advised for transfusion of a bottle of blood. Accordingly, a bottle of blood was brought from the Red Cross Blood Bank, Municipal Hospital, Bhubaneswar on 19.8.2008 by paying a sum of Rs.330/- and the baby was operated on that day. The second operation was also successful like the earlier occasion and the baby was discharged after ten days of the operation. As advised by the Doctor, the baby was again admitted in Neelachal Hospital on 25.2.2009 for final surgery. As usual, before operation the blood of the baby was tested and on seeing the report Dr. Mohanty cancelled the surgery and advised the petitioner and his wife for another blood test to be done at Bangalore and collected the blood sample for the purpose. The baby was discharged immediately. While collecting the blood report which was sent to Metropolis Laboratory for testing, the petitioner was told that the baby was infected with HIV +ve. The doctor advised him and his wife to go to ICTC Centre for testing of their blood on 2.3.2009. On testing their blood it was found to be negative and the blood of the child was found to be HIV +ve. Thereafter the baby was taken to S.C.B. Medical College & Hospital, Cuttack for collection of blood sample and the same was sent to M.K.C.G. Medical College, Berhampur for testing and also for CD 4 counting and the count was 1139 cells per M.M. on 17.3.2009. On 26.8.2009 Mr. Mohanty refused to operate the baby on the ground that there is no facility in Neelachal Hospital for operation of HIV +ve patient.

(3.) Mrs. Sujata Jena, learned counsel appearing on behalf of the petitioner submits that a person suffering from HIV +ve has a legal right to be provided with the treatment. Therefore, by denying the petitioner not to treat his son in the Hospital the opposite partyNeelachal Hospital committed illegality. As it reveals from the reports, the petitioner s son was not infected with HIV+ve from his birth. It seems that he was infected with it soon after the transfusion of blood on 319.8.2008 which was collected from the Red Cross Blood Bank, Municipal Hospital-opposite party no.2. The receipt granted by opposite party no.2 shows that the blood units are tested against Malaria, VDRL, Jaundice ( MB & Ag AIDS (HIV +2) and HCV before use. Mrs. Jena further submitted that medical science so far has identified four causes for infection of HIV i.e. (i) through unsafe sex, (ii) a child born from HIV infected parents; (iii) through needles and (iv) through transfusion of HIV infected blood. Considering age of the baby the source of infection through unsafe sex is ruled out. The petitioner and his wife are not infected by HIV as could be seen from the blood reports under Annexures-9 & 10. The scope of infection through needle is remote since disposable needle was used in transfusion of blood by opposite party no.4. Therefore, the source of infection is the blood which was brought from opposite party no.2. The petitioner is a labourer in Sazan India, a Chemical Factory at Gujarat and earning a paltry sum of Rs.4,000/- per month. He has already spent Rs.88,000/- at the Neelachal Hospital towards medicines and hospital charges by taking hand loans from his friends and relatives and selling a plot of 10 Gunths of fertile land. Due to the lower middle class status of the petitioner, it is impossible for him to take additional burden of treatment of a HIV patient. The constitutional mandate is to provide all medical facilities to the citizens of the country. Therefore, opposite party no.1-State is responsible under law to provide all health facilities to the people. It is because of the negligent action of opposite party nos. 1 & 2, the son of the petitioner has been infected with incurable disease. In this case the blood which was collected for transfusion was contaminated thereby putting the people of the entire State into peril. The action of opposite party nos. 1 & 2 are also contrary to the rulings of the Hon ble apex Court in the case of Common Cause vs. Union of India and others, 1996 AIR(SC) 929. As per study of the medical science, the length of time following the infection of an individual to develop detectable antibodies is about three months after the infection. This is called the Window Period . The petitioner s son is detected with the disease after about 5 months of blood transfusion. Therefore, the blood brought from the Blood Bank on 19.8.2008 was infected with HIV +ve. According to the Supreme Court, right to live includes right to health. The apex Court in Common Cause (supra), has directed the National Council and State Council for proper storage, transport and quality control of the blood apart from other pecuniary measures. There is no provision in the State to identify virus during the Window Period. Unless special test known as Antizen Test is conducted through Polymer Chain Reaction (PCR) method, the virus cannot be identified during the Window Period i.e. during three months of infection. Therefore, the receipt given by the blood bank stating therein that the blood units are tested against HIV seems to be a myth. The petitioner is entitled to compensation under the public law remedy. Concluding her argument Mrs. Jena prayed to grant compensation of Rs.20,00,000/- for the latches of opposite parties Nos. 1 & 2.