Maternal death due to negligence and non-conformity to welfare provisions, Petition filed for the same
Alin Kumar Sasmal Vrs. State of Orissa & Others W.P. (C) No. 5428 of 2016, In the High Court of Orissa, Cuttack Synopsis: - That the petitioner in the present writ application seeks to highlight the failure of state agencies in the proper implementation of necessary provisions of the National Food Security Act, 2013 and deficiencies in the implementation of schemes, meant to reduce infant mortality and maternal mortality funded by the Government of India implemented through Government of Odisha. The issues concern is the systemic failure, which has resulted in denial of benefits to Gouri Sasmal, during her pregnancy, under the Janani Suraksha Yojana (JSY), the Mamata Schemes and the ICDS initiative no support has been provided to her, which she is legally entitled to get the benefits. Although the interrelatedness of these schemes was recognized by the Supreme Court way back in an order dated 28th November 2001 in Writ Petition No. 196 of 2001 (People’s Union for Civil Liberties v. Union of India, (hereafter the PUCL Case) and thereafter periodically orders by way of mandamus have been issued to the Union of India and the individual states, much remains to be done on the ground, as the case of Gouri Sasmal reveals. Gouri Sasmal’s death fits into the internationally accepted definition of maternal death in terms of the period of death and the cause of death. Gouri Sasmal died in the labour room itself, as no doctor has attended her nor she was treated properly in the District Headquarter Hospital, Balasore. Facts:- That fact leading to the present case is that the victim was a pregnant lady registered with the ICDS Centre of Kainagari-1 under Integrated Mother and Child Development Scheme on 11.05.2015, her last monthly period was 19.2.2015 and her expected date of delivery was 26.11.2015. That the petitioner belongs to BPL category and it was her first pregnancy. She availing the antenatal care at the Sub-Centre regularly i.e., 19.05.2015, 16.06.2015, 19.10.2015 and 17.11.2015 at Sahada. On 01.06.2015 she has been to CHC, Basta for her check-up, where the doctor on duty advised her for some test and advised to take medicine accordingly, she was under medication. That while going through all of a sudden the wife of the petitioner developed labour pain on 29.11.2015 at about 2.00 pm, immediately the petitioner called the ASHA to accompany them to the hospital and to call the 102 Ambulance i.e., Janani Express. They waited for two Hours for the 102 Ambulance, when the Ambulance reached at the village, they went to CHC, Basta and reached there at 2.45 PM and the duty doctor admitted her as outdoor patient initially vide OPD No. 6638 and when the condition of Gouri became serious she had been admitted as an indoor patient and the doctor treated her and delivered a male child, the mother of the newborn child became serious and there was profuse bleeding and as there is no blood band, she was referred to Baleswar district headquarter hospital for further treatment on record, though the duty doctor present namely Dr. A.K. Bhuyan was referred he neither tried nor assisted of a vehicle i.e., ambulance either 102 or 108 for taking the lady to district Hospital. The mother of the newborn baby was lying in the labour room and in the meantime two hours passed and finally, she died on the labour table at 7.15 PM on the same day. Grounds: - That due to failure of the implementation and available services at each level Gouri Sasmal could not get benefits that are guaranteed under various schemes and delayed treatment deteriorated the health condition resulting her death. That as per the schemes implemented by the state opposite parties was not given to her at its required time period and has been deprived from. That ANC services have not been provided to Gouri Sasmal 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 maternal death can be defined as per the International Classification of Diseases (ICD) defines a maternal death as the death of a woman while pregnant or within 42 days of the end of the pregnancy, irrespective of the site of pregnancy, from any cause related to or aggravated by the pregnancy or its management but not from accidental or incidental causes (ICD 9th revision). That the chief protagonist in the petition is Gouri Sasmal and, the petition highlights the gaps in the implementation of schemes and programs that reduce maternal and infant deaths and the unsatisfactory state of implementation of the schemes for women during pregnancy and during childbirth, which led to her death. 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. The other right which calls for immediate protection and enforcement in the context of the poor is the right to food. There is a system in place that is designed to provide adequate care for pregnant women in each of these villages, and yet they are not properly administered. This is a direct violation of multiple international agreements that India is a party to establish a right to survive pregnancy and childbirth. The government of India has created multiple schemes to provide services that guarantee a pregnant woman for that right. In this particular instances, there was a breakdown in the referral mechanisms which prevented antenatal care from being distributed, prevented the doctor from being able to understand his patient’s condition when she arrived, and a failure of CHC, that could treat her in time. All of these resulted in a failure to avert a preventable maternal mortality, a violation of her right to survive during pregnancy and childbirth. The events of this case also constitute a violation of multiple rights provided by the constitution, including the fundamental right to health, and guaranteed access to medical services regardless of status. Bhanumati Majhi especially, and the state failed to hold its employees accountable, she did not receive the care she needed to remain healthy during her pregnancy. There is fear that other women similarly situated may face the same fate if the state does not address these egregious violations. The lack of oversight and accountability has created an environment rampant with failures that have finally resulted in maternal death. The CHC, ambulance services and DHH, Balasore all failed in their inability to respond quickly with services that could have saved this woman’s life. Finally, but far from least importantly, if the ANM has regularly visited each pregnant women at the time of 3rd trim star, if the doctor had also taken prompt action in that period, it could have prevented the death of this woman. The need for corrective action in this district is blatantly obvious and needs to be taken immediately. That under constitution there exists some guarantees and guidelines to which India is also a signatory, the right to survive pregnancy and childbirth is a basic human right. Under international law, India has a duty to ensure that women and infants do not experience death or morbidity from wholly preventable causes. This duty arises from multiple international conventions to which India is a party, and which establish the right to health, the right to reproductive autonomy, and the right to be free from degrading treatment. Relevant conventions include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic Social and Cultural Rights (ICESCR), the convention on the elimination of All Forms of Discrimination Against Women (CEDAWA), and the Convention on the Right of the Child (CRC). 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 provide additional guarantees. Article 14 guarantees equality before the law, and the Hon’ble Supreme Court has described gender equality as one of the “most precious Fundamental Rights guaranteed by the Constitution of India.” Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. While the burdens of pregnancy and childbirth are inequitably borne by women, the ability to reproduce should not increase women’s chances of death, disability, or illness. Finally, Article 38 guarantees access to medical services regardless of status. 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 Gouri Sasmal’s loss and further be pleased to pass an order for Gouri Sasmal family to receive her financial entitlement under the National Maternity Benefit Scheme(NMBS) and to pass an order to pay Gouri Sasmal’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 26.09.2016 for admission. During the course of hearing the Hon’ble High court, issue notice to all the opp.parties. Case is pending for final disposal. Precedents sighted: - That the present case also relates to the order passed in the following cases: in Francis Caralie Mullin v. Union Territory of Delhi & Others, [1981 SCR (2) 6], the Supreme Court held that the right to live with dignity and protection against torture and cruel, inhuman or degrading treatment is implicit in Article 21 of the Constitution of India. In Pt. Parmannand katara v. Union of India & Ors., [1989 SCR (3) 997], the Supreme Court held that the Article 21 of the Constitution casts the obligation on the state to preserve life. In Consumer Education and Research Centre v. Union of India, [1995 SCC (3) 43], the Supreme Court held that article 21 of the Constitution of India includes a fundamental right to health and that this right is a ‘most imperative constitutional goal.’ In Paschim Bangal Khet Mazdoor Samity v. State of West Bengal, [1996 SCC(4) 37], the Supreme Court affirmed that providing “adequate medical facilities for the people is an essential part” of the government’s obligation to “safeguard the right to life of every person.” In PUCL v. Union of India, [1996SCC}, the Supreme Court held that all pregnant women should be paid Rs. 500 under NMBS at 8-12 weeks prior to delivery for their first two births, irrespective of the place of delivery and age. In Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. [W.P.(c) No. 8853/2008], the Delhi High Court held that an inalienable component of the right to life is “the right to health, which would include the right to access government health facilities and receive a minimum standard of care. In particularly this would include the enforcement of the reproductive rights of the mother.” In Sandesh Babsal v. Union of India & Ors., [W.P.(C) No. 9061/2008], the Indore High court concluded that timely health care is of the essence for pregnant women to protect their fundamental rights to health and life as guaranteed under Article 21 of the Constitution of India. 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 Gouri Sasmal, 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 to her door step. Such callous actively of the Opp. Parties is not at all acceptable in a democratic country and such inhumane action violates the fundamental rights and constitutional rights of the people.