Ex-IAF Contracts HIV During Blood Transfusion: SC directs Indian Army, Air Force to Pay Rs 1.5 Crore Compensation for medical negligence

New Delhi: While considering the case of a retired Air Veteran, who contracted HIV during a blood transfusion while falling sick on duty during Operation Parakram, the Supreme Court bench on Tuesday held the Indian Air Force (IAF) and the Indian Army jointly and vicariously liable for medical negligence and directed them to pay Rs 1,54,73,000 compensation.

"...the appellant is entitled to compensation, calculated at ₹ 1,54,73,000/- (Rupees one crore fifty four lakhs seventy three thousand only) towards compensation on account of medical negligence of the respondents, who are held liable, for the injury suffered by the appellant. It is also held that since individual liability cannot be assigned, the respondent organizations (IAF and Indian Army) are held vicariously liable, jointly, and severally, to the above extent. The amount shall be paid to the appellant within six weeks by the IAF, his employer; it is open to the IAF to seek reimbursement, to the extent of half the sum, from the Indian Army. All arrears related to disability pension too shall be disbursed to the appellant within the said six weeks period," ordered the top court bench comprising Justices S Ravindra Bhat and Justice Dipankar Datta.

Apart from this, in keeping with the mandate of the HIV Act, the Apex Court also issued certain directions to the Central and State Governments asking them to take measures giving priority to people suffering from AIDS.

"Every court, quasi-judicial body, including all tribunals, commissions, forums, etc., discharging judicial functions set up under central and state enactments and those set up under various central and state laws to resolve disputes shall take active measures, to comply with provisions of Section 3471 of the HIV Act. Chief Justices of all High Courts, shall compile information, and device methods of collecting information in that regard, anonymizing identity of persons affected, appropriately and also complying with provisions of Section 34 (2) of the HIV Act. The Registrar General of the Supreme Court shall also look into the matter, and frame relevant guidelines which, after approval be issued and implemented," ordered the Court.

These observations were made by the Court while considering an appeal challenging the order by the National Consumer Disputes Redressal Commission (NCDRC).

The matter goes back to 2002 when the petitioner fell sick while on duty during operation Parakram and he complained of weakness, anorexia, and passing high-colored urine. Therefore, he was admitted to 171 MH, Samba. While undergoing treatment in there, the MO Physician advised him to undergo a blood transfusion. Accordingly, one unit of blood was transfused to the appellant for the management of severe symptomatic anemia.

Later, in April 2014, the appellant again fell ill and was admitted to Station Medicare Centre, Head Quarter, South West Air Command (U), Gandhinagar. 

In April 2014, the patient again fell ill and while undergoing treatment it was discovered that the petitioner was suffering from Human Immunodeficiency Virus (HIV). After the detection of the HIV Virus, the petitioner demanded a copy of the documents relating to his blood transfusion in July 2002. However, the access was refused on account of their unavailability.

When he again fell sick in 2015, the petitioner requested information about his Personal Occurance Report (POR) from 2002 and finally the medical case sheet was provided to him. The case sheet showed that though on 10.07.2002, one unit of blood was transfused to the appellant, but whether Enzyme-Linked Immunosorbent Assay (ELISA) test was conducted before infusing the blood in the appellant’s body was conspicuously absent from that medical case sheet.

Thereafter, Medical Boards were held in 2014 and 2015, and in terms of the Medical Board proceedings, the patient's disability was attributable to service owing transfusion of one unit of blood at 171 Military Hospital on 10th July 2002.

On 31.05.2016, the petitioner was discharged from service, and thereafter he wrote a letter to obtain his disability certificate. That was denied to him by a letter dated 14.12.2016, which stated that no such provision existed for issuance of printed disability certificate in the format as desired by the petitioner.

When the petitioner filed an RTI application seeking copies of the relevant medical report dating back to 2002, the Appellate authority observed that best efforts were made by the respondent authorities to trace the medical document and even admission and discharge documents were supplied to him whenever available with the respondent.

Meanwhile, proceedings of the Court of Inquiry (CoI) were held on 01.07.2018 to investigate circumstances under which the appellant was transfused blood at the 171 Military Hospital, Samba and the CoI concluded by its findings that blood provided to the appellant was duly screened for the HIV and other markers in vogue at the relevant time and on examination of all the witnesses, no negligence or lapse can be attributed on the part of physician or the support staff at the said military facility.

 It was further observed by the CoI that while the Release Medical Board has opined that infection can be attributed to service, but the specialist opinion before the Release Medical Board failed to mention essential details to establish a causative link between the blood transfusion in 2002 and the detection of infection in 2014.

Thereafter, the petitioner filed a complaint before the NCDRC bench and sought Rs 95 crore as compensation. However, the appeal was dismissed by the Commission, which noted that no expert opinion was adduced or proved before it for establishing medical negligence during the blood transfusion against the treating hospital and relevant authorities. Challenging the NCDRC order, the appellant approached the Apex Consumer Court.

While considering the matter, the Supreme Court bench noted that the time when the incident occurred were fraught in the sense that a warlike situation prevailed at the border. However, the bench further noted that "...at the same time, it cannot also ignore, or be blind to certain realities."

The Court noted that nothing was shown on the record to establish that 171 MH was licensed, even as an ad hoc blood bank. Secondly, there was no material on record as to whether the nature of equipment available at 171 MH for storing blood and blood products was in accordance with the standards and guidelines prevailing in 2002.

Further, the bench noted that, "during the testimony of witnesses i.e., before the CoI, 171 MH and 166 MH, there was no specific mention about what kind of markers were used to determine whether the transfused blood was in fact safe."

The Supreme Court bench also observed that there was nothing on record to show that such guidelines were, in fact, adhered to when the testing as well as the transfusion took place. Besides, the court noted that there was no evidence in the form of deposition by the officer in charge of 166 MH, Lt Col Jyoti Borpujari to rule out the possibility of contaminated blood-which was in fact sent to 171 MH had taken place.

Therefore, the Court observed that "In the opinion of this court, all the above, cumulatively point to the rather casual and if one may say so, superficial attention paid to the entire episode involving blood transfusion."

"It is a matter of record that the concerned doctors who were professionals, i.e., either at 171 MH or 166 MH, felt so pressured by the absolute necessity to follow the drills that the safeguards preceding safe transfusion to the appellant appears to have been a given a go by, or dispensed with. In these circumstances, the normal duty of care which would have ordinarily applied and did apply as well, was that at both ends i.e., 166 MH and 171 MH, there should have been no doubt that blood had been filtered and found safe for transfusion. Equally, something in the form of other material on record or in the form of the oral testimony by the medical cadre personnel, such as Lt Col Devika Bhat of 171 MH who was present in 2002 or Col Sanjay Chauhan, to show what kind of equipment such as refrigerating unit or other chemical matter to preserve the blood and blood products, even within the safe," the bench noted.

"When constituted or read together, all these lapses-which may be seen singly as small or minuscule, add up to one thing: lack of adherence to or breach of the relevant standards of care reasonably expected from a medical establishment. Therefore, whilst pinpointed accountability of one or some individuals is not possible, nevertheless the systemic failure in ensuring a safe transfusion of blood to the appellant, is the only irresistible inference. These facts establish medical negligence, and therefore, vicarious liability on the part of the IAF and the Indian Army. The former is the appellant’s immediate employer; the latter was the organization controlling and in charge of 166 MH and 177 MH," it further noted while holding both the Indian Army and IAF liable for the medical negligence.

Opining that the petitioner in a justified manner invoked the principle of res ipsa loquitor, the top court bench opined that the Army and IAF had to compensate the appellant and mentioned,

"The above analysis leads this court to the conclusion that the condition in which the appellant found himself, was the direct consequence of the two hospital-establishments and their breach of the standards of care, resulting in the transfusion of the HIV positive infected blood into the appellant, which was the causative factor. The necessary foundational facts, to hold that the application of res ipsa loquitur was warranted, were proved in all detail. The respondents failed to discharge the onus which fell upon them, to establish that due care was in fact exercised and all necessary care standards, applicable at the time, were complied with. As a result, it is held that the respondents are liable to compensate the appellant for the injuries suffered by him, that are to be reckoned in monetary terms."

Therefore, the Court ordered the authorities to pay Rs 1,54,73,000/- (Rupees one crore fifty four lakhs seventy three thousand only) towards compensation on account of medical negligence.

"It is also held that since individual liability cannot be assigned, the respondent organizations (IAF and Indian Army) are held vicariously liable, jointly, and severally, to the above extent. The amount shall be paid to the appellant within six weeks by the IAF, his employer; it is open to the IAF to seek reimbursement, to the extent of half the sum, from the Indian Army. All arrears related to disability pension too shall be disbursed to the appellant within the said six weeks period," observed the bench.

Further, the bench issued certain guidelines for the treatment and care of people suffering from HIV AIDS as it observed,

"This court is conscious of the fact that the provisions of the HIV Act cannot be applied to the facts of this case. Yet, it enacts standards and imposes obligations upon several authorities, including the justice delivery system, to take specified measures to ease and mitigate the hardships and barriers which HIV or AIDS affected persons, would ordinarily face. In the light of its provisions, this court proposes its effective implementation, through operative directions to be issued hereafter."

The Guidelines issued by the Supreme Court bench to the Central and State Governments, in keeping with the mandate of the HIV Act, are as follows:

1) Under Section 14 (1) of the HIV Act, the measures to be taken by the Central Government and all the State Government are, to provide, (as far as possible), diagnostic facilities relating to HIV or AIDS, Antiretroviral therapy and Opportunistic Infection Management to people living with HIV or AIDS.

2) The Central Government shall issue necessary guidelines in respect of protocols for HIV and AIDS relating to diagnostic facilities, Antiretroviral therapy and opportunistic Infection Management applicable to all persons and shall ensure their wide dissemination at the earliest, after consultation with all the concerned experts, particularly immunologists and those involved in community medicine, as well as experts dealing with HIV and AIDS prevention and cure. These measures and guidelines shall be issued within three months, and widely disseminated, in the electronic media, print media and all popularly accessed public websites.

3) Under Section 15 (1) & (2) of the HIV Act, the Central government and every State Government shall take measures to facilitate better access to welfare schemes to persons infected or affected by HIV or AIDS. Both the Central and State Governments shall frame schemes to address the needs of all protected persons.

4) Under Section 16 (1) of the HIV Act, the Central and all the State Governments, shall take appropriate steps to protect the property of children affected by HIV or AIDS. By reason of Section 16 (2) of the HIV Act, the parents or guardians of children affected by HIV and AIDS, or any person acting for protecting their interest, or a child affected by HIV and AIDS may approach the Child Welfare Committee [within the meaning of that expression under Section 29 of the Juvenile Justice (Care and Protection of Children) Act, 2000] for the safe keeping and deposit of documents related to the property rights of such child or to make complaints relating to such child being dispossessed or actual dispossession or trespass into such child’s house.

5) The Central and every State Government shall formulate HIV and AIDS related information, education and communication programmes which are age-appropriate, gender-sensitive, non-stigmatising and nondiscriminatory.

6) The Central Government shall formulate guidelines [under Section 18(1) of the HIV Act] for care, support and treatment of children infected with HIV or AIDS; in particular, having regard to Section 18 (2) “notwithstanding anything contained in any other law for the time being in force”, the Central Government, or the State governments shall take active measures to counsel and provide information regarding the outcome of pregnancy and HIV- related treatment to the HIV infected women. The Central Government shall also notify HIV and AIDS policy for establishments in terms of Section 12 of the HIV Act.

7) It is further directed that under Section 19 of the HIV Act, every establishment, engaged in the healthcare services and every such other establishment where there is a significant risk of occupational exposure to HIV, for the purpose of ensuring safe working environment, shall (i) provide, in accordance with the guidelines, firstly, universal precautions to all persons working in such establishment who may be occupationally exposed to HIV; and secondly training for the use of such universal precautions; thirdly post exposure prophylaxis to all persons working in such establishment who may be occupationally exposed to HIV or AIDS; and (ii) inform and educate all persons working in the establishment of the availability of universal precautions and post exposure prophylaxis.

8) By reason of Section 20 (1) of the HIV Act, the provisions of Chapter VIII70 of the HIV Act apply to all establishments consisting of one hundred or more persons, whether as an employee or officer or member or director or trustee or manager, as the case may be. In keeping with proviso to Section 20 (1) of the HIV Act, in the case of healthcare establishments, the said provision shall have the effect as if for the words “one hundred or more”, the words “twenty or more” were substituted.

9) Every person who is in charge of an establishment, mentioned in Section 20 (1) of the HIV Act, for the conduct of the activities of such establishment, shall ensure compliance of the provisions of the HIV Act.

10) Every establishment referred to in Section 20 (1) of the HIV Act has to designate someone, as the Complaints Officer who shall dispose of complaints of violations of the provisions of the HIV Act in the establishment, in such manner and within such time as may be prescribed. The rules in this regard may be formulated by the Central Government at the earliest, preferably within 8 weeks from today.

11) The Secretary, Department of Labour of every state shall ensure the collection of information and data relating to compliance with Sections 19 and 20 of the HIV Act, in regard to designation of a complaint officer, in all the factories, industrial establishments, commercial establishments, shops, plantations, commercial offices, professional organizations, and all other bodies falling within the definition of “establishments” [under Section 2 (f) of the HIV Act]

Such information shall be forwarded to the Secretary, Union Ministry of Labour and Employment, within 10 weeks. The Union Labour and Employment Secretary shall file an affidavit of compliance containing a tabular statement, with respect to implementation of provisions of the Act, within 16 weeks from today.

12) Every court, quasi-judicial body, including all tribunals, commissions, forums, etc., discharging judicial functions set up under central and state enactments and those set up under various central and state laws to resolve disputes shall take active measures, to comply with provisions of Section 3471 of the HIV Act. Chief Justices of all High Courts, shall compile information, and device methods of collecting information in that regard, anonymizing identity of persons affected, appropriately and also complying with provisions of Section 34 (2) of the HIV Act. The Registrar General of the Supreme Court shall also look into the matter, and frame relevant guidelines which, after approval be issued and implemented.

To view the Supreme Court order, click on the link below:

https://medicaldialogues.in/pdf_upload/supreme-court-rs-15-crore-compensation-221111.pdf

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