Maternal death due to non-implementation of healthcare schemes in Odisha
Nirmal Chandra Behera Vrs. Union of India & Others W.P. (C) No.17383 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, Bhanda, Sub-Divisional Hospital, Champua and District Head Quarter Hospital, Keonjhar from 30.04. 2016 to 2.05.2016 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 Lipsamayee Sethi was a pregnant lady. This is her first pregnancy. As per guideline her name has been registered under ICDS scheme, accordingly, a Mother and Child Tracking System (MCTS) card has been issued in her favour on 07.10.2015 bearing MCTS card No. 210608500111500020 which revealed that her expected date of delivery is 01.05.2016.
That the petitioner humbly submits that on 30.04.2016 at about 6 A.M. 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 102 ambulance did not arrive and finding no other alternative way they hired an Auto Rickshaw and rushed to Community Health Centre, Bhanda, Keonjhar. At about 9 A.M the patient reached the hospital, the doctor in duty checked her health condition and advised to admit her. Accordingly, she admitted and her IPD No is 277 dated 3004.2016.
That the petitioner respectfully submits that Smt. Lipsamayee Sethi delivered a male child at about 1.15 P.M. normally. After that when her placenta was not come out from her womb one duty doctor namely Dr. Tulu Patra, tried to remove her placenta manually because he was not a Gynecologist. When he removed placenta from her womb some piece did not come outside from the uterus there after heavy bleeding started. Instead of immediate referral to a higher hospital, they detain her for more than 8 hours. At about 10.00A.M. duty Doctor referred the Lipsamayee Sethi to Sub-divisional Hospital, Champua. The immediate family member tried to contact the 102 Ambulance but Ambulance did not arrive. Their immediate family member took her by a hired Vehicle and rushed to Sub-divisional Hospital, Chumpua and admitted her and duty doctor immediately check her and advised the petitioner, that the patient’s condition is of serious immediacy and that there was a need for blood transfusion and directed the petitioner to arrange blood. Accordingly, the petitioners arranged blood. After transfusion of one pkt blood patient condition did not improve therefore she was again referred to District Hospital, Keonjhar for better treatment. They reached at about 11.00 P.M at District Hospital, Keonjhar. It is pertinent to mention here that entire night, Lipsamayee Sethi, wife of the petitioner who was admitted to the general ward suffered severe pain and was writhing in pain. It is most respectfully submitted that at that there is no bed available in the Hospital, the wife of the petitioner had slept on the floor in a condition of neglect. However, no doctor or nurse was available and nobody came to check on her. Next day i.e., 01.05.2016 morning one staff nurse directed the petitioner to for arrange blood and accordingly by 7.00AM the petitioner arranged 2 pkt. Blood and requested to the staff to kindly give blood but instead of giving blood they behaved rudely with the petitioner and demanded Rs. 2000/- as a fee. It is pertinently mentioned here that after receiving Rs. 2000/- from the petitioner then only staff was given to blood to the patient. On 02.05.2016 morning the doctor visited the wards and checked the wife of the petitioner and said that patient condition is better. But suddenly at about 2.00 PM she became very serious, immediately petitioner call the doctors. Around 2.20.PM doctors declare that she is dead.
That due to the failure of the implementation and available services at each level Lipsamayee Sethi did not receive the benefits that are guaranteed under various schemes. According to the petitioner the health care providers had abandoned Lipsa Sethi 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 Lipsamayee Sethi 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 Lipsamayee Sethi, 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 Lipsamayee Sethi 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, her life was 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 Lipsamayee Seth’s loss and further be pleased to pass an order for Lipsamayee Seth family to receive her financial entitlement under the National Maternity Benefit Scheme(NMBS) and to pass an order to pay Lipsamayee Seth’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 06.12.2016 for admission. During course of hearing the Hon’ble High court, issue notice to all the opp.parties. Case 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:- On dated 24.04.2016 The team comprising an activist, four advocates, and journalist from Odisha have been to a mission of fact-finding and found that not a single guidelines and prescribed norms and standards have been maintained by the state opposite parties for treatment of newborn babies and pregnant mothers.
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