After Pregnant lady dies due to negligence and poor treatment, husband files petition against non-implementation of the welfare schemes and violation of reproductive rights/ right to health of the mother.
Suresh Rout Vrs. Union of India & Others W.P. (C) No.17958 of 2016, In the High Court of Orissa, Cuttack
Synopsis: – That in this petition the petitioner challenges the inaction of the Opp. Parties in non-implementation of the welfare schemes by the Department of Health & Family Welfare and Women and Child Development Department. Whereby the wife of petitioner a pregnant lady died due to negligence and poor treatment by the Community Health Centre and District Head Quarter Hospital, Nuapara while she was undergoing a treatment in the aforesaid Hospital.
That fact leading to file this case is that wife of the petitioner namely late Tarabati Rout was a pregnant lady. This is her fourth pregnancy. As per guidelines, her name has been registered under ICDS scheme, accordingly, a Mother and Child Tracking System (MCTS) card has been issued in her favor on 27.5.2015 bearing MCTS card No. 212540301311500060 which revealed that her expected date of delivery is 27.09.2015.
That the petitioner humbly submits that on 22.11.2016 the wife of the petitioner felt labor pain, therefore immediately family members tried to contact ambulance service provided by the Central and State Govt., by 102 & 108 Ambulance but since no ambulance arrived, her labor pain increased. Finding no other alternative way the petitioner called ANM, Lakhana who assisted for delivery and ultimately the wife of the petitioner, Tarabati Rout delivered a girl child at her home.
That the petitioner respectfully submits that Smt. Tarabati Rout delivered a female child at about 1.15 P.M but all of a sudden after about two hours thereafter when she felt chest pain she was brought to the District Headquarter Hospital at Nuapara for immediate treatment. Unfortunately, there being no doctor at the hospital she was looked after by one staff nurse but after one hour the wife of the petitioner died.
That the petitioner submits that his wife Smt. Tarabati Rout was regularly checked up by ANM during her entire period of pregnancy and her pregnancy was not considered to be high-risk mother.
That as per the norms of the National Health Mission a pregnant woman has to be provided antenatal services which include two shots of tetanus injection, four checkups by the ANM, and nutritional support through the ICDS initiative at the village level. In the present case, the wife of the petitioner was not covered under MAMATA Scheme which along with antenatal, postnatal care and immunization also provides partial wage compensation (Rs. 1,500 in the sixth month of her pregnancy, and 1,500 after the completion of three months of the child). But here in this case even though the wife of petitioner covered under this scheme she had not got any incentive from the govt.
That despite there being a provision under National Health Mission free ambulance services that would facilitate the patient’s movement from her home to the health services and then back to her home; Tarabati Rout was not accorded the dignity that she deserved and her dead body again returned back home in an auto rickshaw wrapped up in a thin sheet.
That due to the failure of the implementation and available services at each level Tarabati Rout did not receive the benefits that are guaranteed under various schemes. According to the petitioner the health care providers had abandoned Tarabati Rout during the delivery process, did not share the confidential information as to the complications faced by her, forcibly asked for payment of services that are supposed to be provided free and delayed her treatment which led to deterioration of her health conditions and subsequently resulting in her death.
That, the petitioner submits that, he being a poor man, ANC services have not been provided to his wife Tarabati Rout nor has she received the essential pre-natal entitlements under the National Maternity Benefit Scheme (NMBS) or services and post-delivery cash incentives under the JSY for institutional deliveries and the JSSK.
That as far as the death of the wife of the petitioner late Tarabati Rout, is concerned the petitioner brings to the notice of the honorable court about the negligence in implementation and provision of schemes and services. This petition is essentially about the protection and enforcement of the basic, fundamental and human right to life under Article 21 of the Constitution of India. This petition focus on two inalienable survival rights that form part of the right to life, the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother.
That Tarabati Rout has failed to receive adequate maternal health care because of non-functioning or poorly functioning community health center, Sub-Divisional Hospital and District Head Quarter Hospital. Upon her arrival at the district headquarter hospital, she was living at risk. She was also required to pay for blood, medicine and denied life-saving care, and forced to endure hours of delay placing her transport.
That Article 21 of the Constitution of India guarantees the right to life and personal liberty. The Hon’ble Supreme Court has interpreted Article 21 to include numerous fundamental rights already protected under International law, including a fundamental right to health (both physical and mental), the right to live with dignity and the right to be free from torture and cruel, inhuman, or degrading treatment. Article 14, 15 and 38 of the Constitution of India.
Prayer:- Under the facts and circumstances it is therefore humbly prayed that this Hon’ble Court may graciously be pleased to admit the writ application, issue notice to the Opp.Parties to show cause as to why the reliefs prayed for shall not be granted in favour of the petitioner and if the Opposite parties failed to show cause or showed insufficient causes, the Hon’ble court may further be pleased to issue direction to the Opposite Parties, to pass an order to reimburse petitioner for the expenditures incurred and provide a compensation of Rs. 10 lakhs for mental and physical trauma and for the upbringing Tarabati Rout’s loss and further be pleased to pass an order for Tarabati Rout family to receive her financial entitlement under the National Maternity Benefit Scheme(NMBS) and to pass an order to pay Tarabati Rout’s family Rs. 20,0000 under NFBS.
And may further pleased to pass such other order/orders, direction/directions may deem fit and proper in the interest of justice.
Status (In court): The aforesaid case was listed before the Hon’ble High court on 21.12.2016 for admission. In course of hearing the Hon’ble High Court, issue notice to all the Opposite Party. The matter is pending for final disposal
Precedents sighted: – As stipulated by the Supreme Court in the Nilabati Behara v. State of Orissa 1993 (2) SCC 746
“Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply (…). Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention. A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of such rights (…).
It is this principle which justifies award of monetary compensation for the contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.
The purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the court moulds the relief by granting compensation in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen.”
Fact-finding conclusions:- That a team comprising a health activist and social workers have conducted a fact-finding on the issue of death of the Tarabati Rout , which clearly reveals that due to non-implementation of IPHS guidelines, non implementation of NHM guidelines and non-available of services at the district headquarter hospital and due to medical negligence the patient died, for which the state authorities are solely responsible and are liable to be prosecuted as per law, as they have violated their code of conduct. It is also observed that even after the death of the patient; the medical authorities did not provide the transportation facility, while they are duty bound to provide the transport facility at her doorstep. Such callous actively of the Opp. Parties are not at all acceptable in a democratic country and such inhumane action violates the fundamental rights and constitutional rights of the people.
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