Where Negligence Is Evident, Burden Of Proof Shifts To Hospital: SC

While fully, firmly and finally affirming the applicability of the time-tested principle of res ipsa loquitur (which means the thing speak for itself) in the context of medical negligence cases, the Supreme Court in a most learned, laudable, landmark and latest judgment titled CPL Ashish Kumar Chauhan vs Commanding Officer & Ors in Civil Appeal No(s). 7175 of 2021 and cited in Neutral Citation: 2023INSC857 in the exercise of its civil appellate jurisdiction that was pronounced finally on September 26, 2023 underscored the applicability of this time-tested principle in cases where negligence is evident and shifts the burden of proof onto the hospital or medical practitioners. We thus see that the Apex Court has affirmed this time-tested principle yet again while awarding Rs 1.5 crore compensation to an ex-Indian Air Force official who contracted HIV during a blood transfusion at a military hospital. The Bench of Apex Court was hearing an appeal against a judgment of the National Consumer Disputes Redressal Commission (NCDRC) which denied the compensation claimed by the Air Veteran. We thus see that the Apex Court held both the Indian Army and the Indian Air Force jointly and severally liable for medical negligence.

At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice S Ravindra Bhat for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Dipankar Datta sets the ball in motion by first and foremost putting forth in para 1 that, "The present civil appeal challenges an order of the National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint No. 647 of 2017. (hereafter, "Commission"). The application by – CPL Ashish Kumar Chauhan (hereafter, "appellant") for compensation was dismissed by the Commission. The Commanding Officer, 171 Military Hospital is arrayed as the first Respondent; the Medical Officer at the 171 Military Hospital ("171 MH") is the second respondent; the Principal Director, Directorate of Air Veterans is impleaded as the third respondent; the Commanding Officer of the South Western Air Command (Gandhinagar HQ) is arrayed as fourth respondent, and the Senior Medical Officer at the said Military facility is impleaded as the fifth respondent. The first, second and fifth respondents are, hereafter, referred to (unless the context otherwise requires) as "Indian Army"; and the third and fourth respondents, as "IAF"."

To put things in perspective, the Bench envisages in para 2 that, "The aftermath of the attack on Indian Parliament, (i.e., on 13 December 2001) was followed by heightened tensions at the Indo-Pak border. There was troop mobilization at the border; what is termed as a prolonged "eyeball to eyeball" confrontation between Indian armed forces and Pakistani armed forces. During this deployment and engagement, known as "Operation Parakram", the appellant, who was a radar operative/ technician -with the IAF, was deployed at the border. He had enrolled in the IAF from 21.05.1996 in a permanent position and held a combatant rank. His medical category was A4 GI [which is Category A]."

While elaborating, the Bench observes in para 3 that, "In July 2002, as his services were needed, he was posted at 302 TRU (Transportable Radar Unit), Pathankot. He fell sick whilst on duty during the operation (Parakram) and complained of weakness, anorexia and passing high colored urine. He was, therefore, admitted to 171 MH, Samba. On 10.07.2002, whilst undergoing treatment at the aforementioned facility, Lt. Col Devika Bhat, posted as MO (Physician), advised him to undergo a blood transfusion. One unit of blood was therefore, transfused to the appellant, for the management of severe symptomatic anemia. The said military hospital facility did not have a license for a blood bank but has been termed by the Indian Army as an "ad-hoc blood bank". Apparently neither any pathologist nor transfusion expert was posted at the facility as it was specifically opened up during Parakram. The appellant alleges that 171 MH did not possess any facility to check markers of blood, including HIV before transfusion and the blood was indented from another military hospital – 166 Military Hospital ("166 MH") as per the SoP2 on "Adhoc Blood Bank". The treatment papers of the appellant were entrusted to the Senior Medical Officer of the 302 TRU, Pathankot, for maintenance purposes. In August 2002, the appellant was again admitted to 171 MH; and this time, his hemoglobin level was found to have increased from 11.5gm% to 13.0gm%."

Further, the Bench mentions in para 4 that, "In April 2014, the appellant again fell ill. This time, he was admitted to Station Medicare Centre, Head Quarter, South West Air Command (U), Gandhinagar. The test report dated 05.03.2014, reported "negative" for the HIV virus. While undergoing treatment at this facility, he suffered some complications and was consequently, transferred to Military Hospital, Ahmedabad. On further deterioration of his health at the Ahmedabad center, he was further transferred to INHS Asvini, Mumbai, an Indian Naval establishment. While undergoing treatment, his blood samples were taken and on diagnosis, the Lab reports (dated 21.05.2014 and 23.05.2014), revealed that the appellant was suffering from Human Immunodeficiency Virus (hereafter, "HIV"). According to the appellant, these two lab reports meet the required parameters for a valid medical document, including mention of the lab reference number and name of the medical officer. The finding of the lab report returns as: "Positive for HIV – I Antibodies by NACO Strelegy"."

Be it noted, the Bench notes in para 5 that, "The appellant endeavored to trace the source of the virus and realized that the transfusion of virus infected blood at 171 MH Samba in 2002 was the cause of his condition. After the detection of the HIV virus, the first medical board was held on 11.06.2014 and as per the findings of the Medical Board, the infection with HIV was made – "non-attributable to service". On being dissatisfied with the decision of the first Medical Board, the appellant demanded a copy of the documents relating to his blood transfusion at 171 MH, Samba in July 2002; access was however refused by the respondents on account of their unavailability."

Furthermore, the Bench states in para 6 that, "In February of 2015, the appellant was hospitalized at a military facility in Ahmedabad owing to H1N1 (Swine) Influenza, Macrocytic Anaemia, Subhyalodid, and Haemorrhage along with Immune Surveillance. He requested information about his Personal Occurrence Report (POR) at 171 Military Hospital, Samba in 2002 which had to be kept by the Commanding Officer of the concerned unit. Pursuant to the request, the fifth respondent, on 24.09.2014, wrote to the IAF record office, in New Delhi and by letter dated 29.09.2014, the appellant’s medical case sheet was provided to him. The case sheet shows 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."

In brief, the key point in para 7 is that, "Thus, Medical Boards were held on 12.12.2014 and 24.06.2015 and in terms of the medical board proceedings, the appellant’s disability was attributable to service owing transfusion of one unit of blood at 171 Military Hospital on 10th July 2002."

It cannot be glossed over that the Bench points out in para 8 that, "On 10.09.2015, the appellant requested for the release of certified copies of his medical records. They were not provided to him despite the fact that said records were essential for his treatment post discharge from the service. In fact, the appellant alleges that a condition was insisted on him to sign on the proceedings of a Release Medical Board which allegedly never took place. On31.05.2016, the appellant was denied extension of services and was discharged from service, without the due proceedings of the Release Medical Board. At the time of release, the appellant was not provided with the Ex-Servicemen Contributory Health Scheme (hereafter, "ECHS") card within a reasonable time and an ECHS temporary card was issued only after an application dated 26.04.2016 was moved by him. Further, Rs. 15,000 were also deducted from the dues owed to him postretirement in the absence of an ECHS card for undergoing medical treatment."

Quite significantly, the Bench postulates in para 84 that, "In the present case, the shock and agony faced by the appellant, the trauma which he felt because of the virtual denial of his condition, the stonewalling attempts of the respondents, in firstly denying his requests for information, and then, holding a CoI behind his back, are actionable. Whilst individuals’ roles cannot be pinpointed, the overall inference one is left to draw is overwhelming prejudice- despite the appellant’s unblemished track record of service in the IAF. The premature retirement, and to cap it all (in an incident for which the respondents cannot be held responsible) his rejection by a public sector company, the Food Corporation of India (FCI) on the ground of his being HIV positive are aggravated factors. The IAF could certainly have taken pro-active steps to ensure that the appellant was provided with some alternative employment, within its organization, or as part of the armed forces’ rehabilitation programmes for veterans and ex-servicemen. The overall result was acute mental agony caused to the appellant. This court is of the opinion, that the appellant is entitled to ₹ 50,00,000/- (Rupees fifty lakhs only) towards this head."

Most commendably, the Bench propounds in para 91 that, "Before issuing concluding directions, this court would like to record some relevant observations. People sign up to join the armed forces with considerable enthusiasm and a sense of patriotic duty. This entails a conscious decision to put their lives on the line and be prepared for the ultimate sacrifice of their lives. A corresponding duty is cast upon all state functionaries, including echelons of power within the armed forces to ensure that the highest standards of safety (physical/mental wellbeing, medical fitness as well as wellness) are maintained. This is absolutely the minimum required of the military/air force employer for not only assuring the morale of the forces but also showing the sense of how such personnel matter and their lives count, which reinforces their commitment and confidence. Any flagging from these standards – as the multiple instances in the present case have established, only entails a loss of confidence in the personnel, undermines their morale and injects a sense of bitterness and despair not only to the individual concerned but to the entire force, leaving a sense of injustice. When a young person, from either sex (as is now a days the case) enrols or joins any armed forces, at all times, their expectation is to be treated with dignity and honour. The present case has demonstrated again and again how dignity, honour and compassion towards the appellant were completely lacking in behaviour by the respondent employer. Repeatedly the record displays a sense of disdain, and discrimination, even a hint of stigma, attached to the appellant, in the attitude of the respondent employer. Although this court has attempted to give tangible relief, at the end of the day it realizes that no amount of compensation in monetary terms can undo the harm caused by such behaviour which has shaken the foundation of the appellant’s dignity, robbed him of honour and rendered him not only desperate even cynical."

Do note, the Bench notes in para 92 that, "As a result of the above discussion, it is held that 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."

Most significantly, the Bench mandates in para 93 that, "In keeping with the mandate of the HIV Act, the following directions are issued to the Central and State Governments:

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 VIII (Dealing with "Safe Working Environment"). 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] which reads as follows:

""establishment" means a body corporate or co-operative society or any organisation or institution or two or more persons jointly carrying out a systematic activity for a period of twelve months or more at one or more places for consideration or otherwise, for the production, supply or distribution of goods or services."

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 34 [34.(1) In any legal proceeding in which a protected person is a party or such person is an applicant, the court, on an application by such person or any other person on his behalf may pass, in the interest of justice, any or all of the following orders, namely:—

(a) that the proceeding or any part thereof be conducted by suppressing the identity of the applicant by substituting the name of such person with a pseudonym in the records of the proceedings in such manner as may be prescribed;

(b) that the proceeding or any part thereof may be conducted in camera;

(c) restraining any person from publishing in any manner any matter leading to the disclosure of the name or status or identity of the applicant.) 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."

In sum, the Apex Court has made it indubitably clear that where negligence is evident, the burden of proof shifts to the hospital. The Court very rightly held both the Army and Air Force jointly and severally liable for the gross medical negligence. No denying!