Petitione filed in case of Maternal death due to negligence and poor implementation of Maternity Benefit Schemes.
Sambhunath Munda Vs. Union of India & Others, W.P.(C) No.16706 Of 2016, In the High Court of Orissa, Cuttack
Synopsis: – That in this writ 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 District Headquarter Hospital, Keonjhar on 23.03.2016 while she was undergoing a cesarean operation.
That fact leading to file this case is that wife of the petitioner namely late Jamuna Munda 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 24.09.2015 bearing MCTS No. 810609100311500199 which revealed that her expected date of delivery is 23.03.2016.
That on 22.03.2016 at about 6 P.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 District Headquarter Hospital, Keonjhar. After the patient reached the hospital the doctor on duty checked her health condition and advised Jamuna Munda and her family to return back to their home as it was a false pain, accordingly she was brought back.
That on the very same day i.e., 23.3.2016 at about 12 midnight when she felt severe pain immediately the family members took her by a hired Auto as no ambulance services were available and admitted her in the District Headquarter Hospital, Keonjhar. It is pertinent to mention here that entire night the Jamuna Munda wife of the petitioner who was admitted to the general ward suffered severe pain and was writhing in pain. However, no doctor or nurse was available and nobody came to check her. Next day at around 8.30 AM to 9.00 AM in the morning when Doctor Dr. Pradeep Sahu visited the ward and checked Jamuna Munda, and advised the petitioner to arrange for 5 units of blood, as she was in a serious condition and needed a caesarian section, accordingly the petitioner arranged blood. About 9.30 A.M. she was shifted to the labour room and the doctors and their staff conducted caesarian operation twice without assigning any reasons to the petitioner. On the first instance they took the patient to Operation Theatre and after 1 hour i.e., 10.30 A.M. the patient came out from Operation Theatre and negligently laid down on the verandah for more than two hours. Jamuna Munda was again shifted to the Operation Theatre for the second time and soon gave birth to a female infant. However soon after Jamuna Munda’s health deteriorated and she died at about 4.30.P.M.
That duty doctor Dr. Pradeep Sahu refused to provide services unless he was paid Rs. 2000/-. That his wife Jamuna Munda was regularly checked up by ANM during her entire period of pregnancy and her pregnancy was not considered to be high risk.
That due to a failure of the implementation and available services at each level Jamuna Munda did not receive the benefits that are guaranteed under various schemes. According to the petitioner the health care providers had abandoned Jamuna Munda 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 Jamuna Munda 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 Jamuna Munda, 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 Jamuna Munda has failed to receive adequate maternal health care because of non-functioning or poorly functioning sub-center, primary health center and community health center. Upon her arrival at the district headquarters 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 Jamuna Munda’s loss and further be pleased to pass an order for Jamuna Munda family to receive her financial entitlement under the National Maternity Benefit Scheme(NMBS) and to pass an order to pay Jamuna Munda’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 24.10.2016 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: – 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 Jamuna Munda, 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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