Kerala High Court
Dr. S. Ganapathy vs State Of Kerala on 22 May, 2017
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, V Raja Vijayaraghavan
'C.R.'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939
WP(C). No.5552 of 2017 (S)
---------------------------
PETITIONER(S):
DR. S. GANAPATHY, AGED 69 YEARS,
S/O. LATE ADVOCATE K. SADANANDAN,
"ANJALY", MARUTHADI.P.O., KOLLAM-691 003.
BY ADV. DR.S.GANAPATHY (PART IN PERSON)
RESPONDENT(S):
1. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. THE SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
3. THE APPROPRIATE AUTHORITY CONSTITUTED UNDER THE TRANSPLANTATION
OF HUMAN ORGANS AND TISSUES ACT (THO ACT OF 1994),
(DIRECTOR OF MEDICAL EDUCATION), GOVERNMENT OF KERALA,
MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM- 695 001.
4. THE NODAL OFFICER, KERALA NETWORK FOR ORGAN SHARING (KNOS),
OFFICE OF THE KNOS, SUPER SPECIALITY BLOCK,
MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM-695001.
5. UNION OF INDIA, REPRESENTED BY THE SECRETARY,
MINISTRY OF HEALTH AND FAMILY WELFARE,
ROOM NO.348, 'A' WING, NIRMAN BHAVAN, NEW DELHI-110 011.
# ADDITIONAL 6TH RESPONDENT IS IMPLEADED:
6.INDIAN MEDICAL ASSOCIATION (IMA),
REPRESENTED BY STATE SECRETARY, KERALA STATE BRANCH,
IMA STATE HEADQUARTERS, PERINTHALMANNA.
# (ADDITIONAL 6TH RESPONDENT IS IMPLEADED VIDE ORDER DATED 22.05.2017
IN I.A. NO.5532 OF 2017.)
....2/-
WP(C). No.5552 of 2017 (S)
:2:
R1 TO R4 BY SENIOR GOVERNMENT PLEADER SRI. ARAVINDAKUMAR BABU
R5 BY ADV. SRI. ANISH JAIN, C.G.C
ADDL.R6 BY ADVS. SRI. S. GOPAKUMARAN NAIR (SENIOR)
SRI. P. CHANDRASEKHAR
SRI. SOORAJ T.ELENJICKAL
SRI. K. ARJUN VENUGOPAL
SMT. MARY RESHMA GEORGE
SMT. V. A. HARITHA
SMT. SANDHYA R.NAIR
SMT. P. M. MAZNA MANSOOR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-06-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C). No.5552 of 2017 (S)
APPENDIX
PETITIONER(S)' EXHIBITS:-
P1:- TRUE PHOTOSTAT COPY OF THE INFORMATION RECEIVED FROM INTERNET.
P2:- TRUE PHOTOSTAT COPY OF THE INFORMATION RECEIVED FROM INTERNET.
P3:- TRUE PHOTOSTAT COPY OF THE INFORMATION RECEIVED FROM INTERNET.
P4:- TRUE PHOTOSTAT COPY OF THE ARTICLE PUBLISHED IN THE WORLD FAMOUS
MEDICAL JOURNAL OF AMERICAN SOCEITY OF ANAESTHESIOLOGY.
P5:- TRUE PHOTOSTAT COPY OF THE ARTICLE PUBLISHED IN THE WORLD FAMOUS
MEDICAL JOURNAL OF AMERICAN SOCEITY OF ANAESTHESIOLOGY.
P6:- TRUE PHOTOSTAT COPY OF THE ARTICLE PUBLISHED IN THE WORLD FAMOUS
MEDICAL JOURNAL OF AMERICAN SOCEITY OF ANAESTHESIOLOGY.
P7:- TRUE PHOTOSTAT COPY OF THE APPLICATION UNDER THE RIGHT TO
INFORMATION ACT DATED 07.07.2016 SUBMITTED BEFORE THE 3RD
RESPONDENT.
P8:- TRUE PHOTOSTAT COPY OF THE APPLICATION UNDER THE RIGHT TO
INFORMATION ACT DATED 07.07.2016 SUBMITTED BEFORE THE 3RD
RESPONDENT.
P9:- TRUE PHOTOSTAT COPY OF THE APPLICATION UNDER THE RIGHT TO
INFORMATION ACT DATED 07.07.2016 SUBMITTED BEFORE THE 3RD
RESPONDENT.
P10:- TRUE COPY OF THE REPLY ISSUED BY THE PUBLIC INFORMATION OFFICER,
GOVERNMENT MEDICAL COLLEGE, THIRUVANANTHAPURAM DATED 03.08.2016.
P11:- TRUE PHOTOSTAT COPY OF THE MINUTES OF THE MEETING HELD ON 26.12.2016.
AT THE CHAMBERS OF THE 2ND RESPONDENT.
P12:- TRUE PHOTOSTAT COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE
COURT ON 10.01.2017 PASSED IN WP(C) NO.35526 OF 2016.
P13:- TRUE PHOTOSTAT COPY OF THE GO(MS) NO.16/2017/H&FWD DATED 01.02.2017
PASSED BY 2ND RESPONDENT.
P14:- TRUE PHOTOSTAT COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT ON
02.02.2017 IN WPC NO.35526/2016.
P15:- TRUE PHOTOSTAT COPY OF THE REPORT PUBLISHED BY THE UNIVERSITY OF
BUENONS AIRES, ARGENTINA.
P16:- TRUE PHOTOSTAT COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER BY
PROF. DR. ALAN SHEWON, PROFESSOR EMIRATUS, DEPARTMENT OF PEDIATRIC
NEUROLOGY ON 04-10-2016.
P17:- TRUE COPY OF THE COMMUNICATION ISSUED BY THE ADDITIONAL CHIEF
SECRETARY, HEALTH AND FAMILY WELFARE ON 20-11-2016.
P18:- TRUE COPY OF THE COMMUNICATION DATED 11-11-2016 ISSUED BY DR.
PAL~DAG LINE, PROFESSOR OF SURGERY, UNIVERSITY OF OSLO.
P8(A):-TRUE COPY OF THE COMMUNICATION DATED 01-06-2017 ISSUED BY DR. PABLO
ANGELANI, RADIOLOGO Y NEURO READIOLOGO INTERVENCIONISTA, ARGENTINA.
WP(C). No.5552 of 2017 (S)
APPENDIX-(2)
P18(B): TRUE COPY OF THE COMMUNICATION DATED 05-06-2017 ISSUED BY DR.
PARTICIA BOZZETTO ABRO SI, NEURO SCIENTIST, NEURO RADIOLOGIST, NEURO
SURGEON EMERGENCY MEDICINE SPECIALIST, PARIS, FRANCE.
P18(C): TRUE COPY OF THE COMMUNICATION DATED 08-06-2017 ISSUED BY DR.EZANA
AZENE MD, PHD, ATTENDING VASCULAR & INTERVENTIONAL RADIOLOGIST THE
JOHNS HOPKINS UNIVERSITY SCHOOL OF MEDICINE UNITED STATES.
P18(D): TRUE COPY OF THE COMMUNICATION DATED 05-06-2017 ISSUED BY DR. ANGEL
LEE, INTERVENTIONAL NEURO RADIOLOGY AT CIEV SAN JERONIMO ACULCO,
MEXICO CITY, MEDICO.
P18(E): TRUE COPY OF THE COMMUNICATION DATED 11-05-2017 ISSUED BY DR. LUC
VAN DEN HAUWE, NEURO RADIOLOGIST, UNIVERSITY OF ANTWERP BELGIUM.
P18(F): TRUE COPY OF THE COMMUNICATION DATED 02-06-2017 ISSUED BY DR. OSCAR
CHIRIFE, INTERVENTIONAL NEURO RADIOLOGIST, HOSPITAL UNIVERSITARI DE
BELLVITGE BARCELONA, SPAIN.
P18(G): TRUE COPY OF THE COMMUNICATION DATED 02-06-2017 ISSUED BY DR. SALAH
ALMUBARAK, PEDIATRIC NEUROLOGY, EPILEPSY, CLINICAL NEURO PHYSIOLOGY,
DR.SASKATOON, CANADA.
P18(H): TRUE COPY OF THE COMMUNICATION DATED 06-06-2017 ISSUED BY DR.
ROLAND TALANOY MD, PHD CONSULTANT RADIOLOGIST AFFILIATE PROFESSOR,
UNIVERSITY OF BERN CHIEF EDITOR OF JRCR SWITZERLAND.
P18(I): TRUE COPY OF THE COMMUNICATION DATED NIL ISSUED BY DR. MED.THORSTEN
SCHMIDT THE C FUR DIAGNOSTISCNEUND INTERVENTIONELLE NEURO
RADIOLOGUE IM HELIOS KLNINIICUH WAPPER TAL GERMANI.
P19: TRUE COPY OF THE COMMUNICATION DATED 10-04-2017 ISSUED BY PROF.
MEGUID NAHAS PROFESSOR OF NEPHROLOGY CHAIRMAN GLOBAL KIDNEY
ACADEMY SHEFFIELD, UNITED KINGDOM.
P19(A): TRUE COPY OF THE COMMUNICATION DATED 01-05-2017 ISSUED BY DR.MICHEL
DELAHOUSSE CHEF DE SERVICE, NEPHROLOGIE ET TRANSPLANTATION HOSPITAL
FOCK, PARIS, FRANCE.
P19(B): TRUE COPY OF THE COMMUNICATION DATED 03-05-2017 ISSUED BY DR.
PIERGIORGIO MESSA DIRETTORE NE FROLOGIA, ITALI.
P19(C): TRUE COPY OF THE COMMUNICATION DATED 01-04-2017 ISSUED BY DR. MIHAI
OLTEAN TRANSPLANT INSTITUTE, SWEDEN.
P19(D): TRUE COPY OF THE COMMUNICATION DATED 27-04-2017 ISSUED BY DR.
ROBERTO MARIO SALCEDO ALEJOS, MEDICO NEFROLOGO, MEXICO.
P19(E): TRUE COPY OF THE COMMUNICATION DATED DATED 04-04-2017 ISSUED BY
DR.LORENZ GURKE, HEAD VASCULAR SURGERY AND KIDNEY TRANSPLANTATION,
SWITZERLAND.
P19(F): TRUE COPY OF THE COMMUNICATION DATED 23-04-2017 ISSUED BY DR. ANDREJ
GRAJN, UROLOGY AND TRANSPLANT SURGEON, FEBU, AUSTRALIA.
WP(C). No.5552 of 2017 (S)
APPENDIX-(3)
P19(G): TRUE COPY OF THE COMMUNICATION DATED 12-05-20176 ISSUED BY PROF.
WALDO CONCEPCION, PROF. OF SURGERY, CHIEF OF CLINICAL
TRANSPLANTATION, CALIFORNIA.
P19(H): TRUE COPY OF THE COMMUNICATION DATED 09-05-2017 ISSUED BY PADMASREE
PROF. DR. SANJEEV BAGAI, DR. BC ROY AWARD WINNER M.C.I., NEW DELHI.
P19(I): TRUE COPY OF THE COMMUNICATION DATED 09-04-2017 ISSUED BY DR. EYUP
KAHVECI, TURKISH TRANSPLANT FOUNDATION ANKARA, TURKEY.
P20: TRUE COPY OF THE NEWS ITEM APPEARED IN KERALA KOWMUDI DAILY DATED
25-01-2017.
P20(A): TRUE ENGLISH TRANSLATION OF EXHIBIT P20.
RESPONDENT(S)' EXHIBITS;-
R5(A):- COPIES OF SUB RULE (4) OF RULE 5, FORM 10 AND FORM 8.
R5(B):- COPY OF INTERNATIONAL GUIDELINES FOR DETERMINATION OF DEATH
ISSUED BY WHO.
R5(C):- COPY OF THE GUIDELINES ISSUED BY U.K. NAMES A CODE OF PRACTICE FOR
THE DIAGNOSIS AND CONFIRMATION OF DEATH.
KRJ
/TRUE COPY/
P.A. TO JUDGE
'C.R.'
NAVANITI PRASAD SINGH, C.J.
&
RAJA VIJAYARAGHAVAN V., J.
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W.P.(C) No.5552 of 2017
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Dated this the 28th day of June, 2017
JUDGMENT
Navaniti Prasad Singh, C.J.
Dr. S. Ganapathy has brought this public interest litigation primarily to draw the attention of the court to an alleged malpractice in declaring a patient to be brain dead when he, in fact, is not brain dead, only with the intention to facilitate harvesting of organs for transplantation. He had drawn the attention of this Court to the fact that the most common easy test was EEG, but that was not being resorted to. Instead, insistence is upon apnea test, which is not properly done and by concealing the actual state of affairs to the near relatives. In simple words, what he submits is that even though a person may not be brain dead, to facilitate organ transplantation, the doctors declare a patient brain dead and then persuade the family to donate the organs. Initially, this Court evinced interest in his submissions noticing that one of the highest organ transplantations in any State is being done in the State. We, WP(C).5552/17 -:2:- therefore, noticed the Union of India and the State of Kerala to respond to the allegations.
2. On behalf of the Union of India, an affidavit has been filed pointing out the provisions of the Transplantation of Human Organs and Tissues Act, 1994 and the Rules, 2014 made therein and in specific, referring to Rule 5 and Form 10 of the Rules. In their affidavit, reference has also been made to the guidelines issued by the World Health Organisation (WHO) being International Guidelines for the Determination of Death - Phase I, May 30-31, 2012 Montreal. A reference to that shows one thing which supports the contention of the petitioner. It notices as under:
"6. Ancillary and Supplemental Testing 7 xxxx xxx xxxx 7 In some jurisdictions, brain death requires the use of a supplementary or confirmatory test. The most commonly recommended supplemental tests are EEG, 4 vessel cerebral angiography or radionuclide testing.
7 Newer tests - inconsistently recommended -
include CT angiography, CT perfusion, MR angiography and transcranial Doppler. 7 There is insufficient evidence to determine if newer ancillary tests accurately confirm the cessation of function of the entire brain."
WP(C).5552/17 -:3:-
"7. Apnea test 7 xxxx xxx xxxx 7 Due to theoretical concerns about the effect of hypercarbia on cerebral blood flow in potential brain death, many guidelines recommend performance of the apnea test after all other clinical testing has been completed."
3. One thing we could understand was that the guidelines of the WHO point out that apnea test would be the last test after the other tests are performed which would included EEG. Therefore, the recommendation is not to exclude EEG.
4. The State of Kerala has also filed an affidavit. They have formed a committee and laid down guidelines as to who all would be the member of that committee and how brain death certification has to be done. Learned Senior Government Pleader appearing for the State points out that as per the directives of the State Government in respect of brain dead declarations where apnea test is to be done without exception, the whole procedure should be video graphed and maintained. This clearly answers the apprehension of the petitioner that without properly conducting apnea test, patients are being declared as brain dead.
WP(C).5552/17 -:4:-
5. Once videography is there, if any person finds any mistake, then it would be open for him to take suitable action which the law would permit and evidence would be readily available for that purpose. It is not that EEG is totally an unreliable evidence, as the report itself suggests that those are tests which would be done prior to resorting to the EEG and as we understand that EEG is simply a common procedure where even the wards of the patient can easily see and make out. There may be occasions where it may draw up a different result, but that does not mean that a common test which even otherwise is done, should be avoided. We would thus, recommend to the Central Government and the State Government to consider the issuance of directives in that regard. It would only be an additional safeguard to be done and can easily be done by any hospital which admits neurological cases. Otherwise, we are satisfied that steps that have been taken by the Central Government and the State Government are sufficient for the time being, but then it is time for them also to be cautious.
6. We would like to thank Dr. Easwer H.V., Professor, Department of Neurosurgery, Sree Chitra Tirunal Institute for Medical Science and Technology, who is a specialist in the field of WP(C).5552/17 -:5:- Neurology and was produced by the State. Dr. Ganapathy had no objection to the said doctor addressing the court.
7. In the course of arguments, Dr. Ganapathy drew our attention to different cases which we need not refer. They related to patients who, according to him, ought not to have been a candidate for transplant, but hospitals performed transplant surgery which ended with fatal results. This is a matter of malpractice. If any specific case is brought to the notice of the authorities concerned by anyone, including Dr. Ganapathy, then the appropriate authority would be required to take suitable action in the matter.
8. Patients and their wards are desperate. They can easily be misled into believing things which may not be correct. The State have a responsibility to protect such people from such exploitation. The State would have to take such allegations seriously to avoid medical fraud and malpractice. It would have to have to take special or extra-ordinary care in these matters to ensure that hospitals stick to highest level of medical ethics and follow the law strictly, and any failure or slip in the process or the procedure must be dealt very seriously. With these observations and directions, we do not WP(C).5552/17 -:6:- propose to proceed further in the matter. We hope and trust that the Central Government and the State Government would realise their responsibility in the matter and act accordingly.
Writ petition is closed accordingly.
Sd/-
Navaniti Prasad Singh, Chief Justice Sd/-
Raja Vijayaraghavan V., Judge krj.30/6