Central Administrative Tribunal - Delhi
Raj Kumar Sharma vs East Delhi Municipal Corporation ... on 23 August, 2018
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.2041/2017
Reserved on:31.07.2018
Pronounced on:23.08.2018
Hon'ble Ms. Praveen Mahajan, Member (A)
Shri Raj Kumar Sharma
Aged 85 years
Pensioner Retired as
Deputy Assessor & Collector
S/o Late Shri B D Sharma
R/o 51-F, Pocket-3
Mayur Vihar, Phase-I
New Delhi - 110 091. ..... Applicant
(By Advocate:Ms. Shobhna Takiar)
VERSUS
1. East Delhi Municipal Corporation
Through its Commissioner
Patparganj, Industrial Area
Shahdara (South) Zone
New Delhi.
2. Chief Administrative Medical Officer
East Delhi Municipal Corporation
Patparganj, Industrial Area
Shahdara (South) Zone
New Delhi. .... Respondents
(By Advocate:Shri M.S.Reen)
ORDER
The applicant superannuated from the Government service in the year 1990. He is a member of Municipal pensioner health scheme and holder of medical facility card. Thus entitled to avail medical facility for himself and his family members. The 2 applicant states that on 04.12.2012 his wife was admitted to Fortis Escorts Heart Institute (FEHI) after complaint of breathlessness. On admission she underwent coronary angiography and was advised further medical treatment.
2. On 24.05.2015, the applicant‟s wife was again admitted in FEHI in emergency, and diagnosed as suffering from severe Aortic Stenosis with Aortic valve tricuspid and calcified. On 02.06.2015 she again underwent coronary angiography which revealed OSTIAL LM (80% - 90%), LAD -80%, OMI - 90%, OM2- 90%.
3. The „Heart Team‟ of Fortis Escorts Heard Institute (FEHI) found her to be a case of high risk for open heart surgery, and advised her to undergo coronary artery stenting followed by Aortic Valve Replacement by TAVR method, i.e. Transcatheter Aortic Valve Replacement, by using core valves, which would not involve the risk of open heart surgery and prolonged anaesthesia. The applicant was informed that the cost for this procedure was approximately Rs.20,82,690/- (The cost of the valve alone being Rs.14,00,000/-). Being a retired government employee the applicant was unable to pay such a large amount, so he sought discharge of his wife from the hospital to avail cashless medical facility for which he is entitled.
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4. The applicant requested the respondents on 04.06.2015 to provide advance medical allowance (amount) for the recommended treatment by FEHI. It was proposed by respondent no.2 to take another opinion in the matter from HOD cardiology, Hindu Rao Hospital. On going through the case, they (HRH) came to the conclusion that the wife of the applicant has significant cardiac disease which requires Aortic Valve Replacement. Regarding surgical procedure, as suggested by FEHI, the HOD of Hindu Rao Hospital left the same to the treating surgeon.
5. However, as per condition of the patient, the respondents again sought an opinion from G.B. Pant Hospital on 08.05.2015 for justification of using core valve in place of traditional valve, and TAVR in place of AVR. The applicant was informed that the case would be put up before the Medical Board of G.B. Pant Hospital as and when it is constituted.
6. The applicant avers that his wife was not in a position to survive till the constitution of the Board who would concur/decide on the line of treatment already taken by the „Heart Team‟ of the approved hospital FEHI, hence, the applicant filed a Writ Petition No.5967/2015 in the Hon‟ble High Court of Delhi, who, vide order dated 10.06.2015 directed the respondents to proceed on the basis of opinion already rendered by the HOD, 4 Cardiology, HRH, and to remit 10% of the claimed amount to the applicant for urgent commencement of the treatment.
7. Accordingly, an amount of Rs.2,08,269 was released to the applicant on 19.06.2015. The hospital, due to precarious condition of the applicant did not follow AVR, as suggested earlier, but conducted artery stenting only, for which the expenditure was Rs.2,39,970/-. (The bill details of the treatment are at Annexure-A-13).
8. After adjusting the advance amount, the applicant paid Rs.31,701/- from his pocket & requested the respondents to reimburse the same. Instead of reimbursing the said amount the respondents demanded Rs.1,13,375/- from the applicant vide OM dated 03.09.2015. He was threatened that in case the amount (of Rs.1,13,375/-) was not paid, the same would be adjusted from his future medical reimbursements. True to their word, the respondents have now adjusted the amount of Rs.31,701/- and directed the applicant to deposit balance amount of Rs.70,047/-.
9. On 24.12.2016, the wife of the applicant was again admitted to the hospital, in a state of emergency where he incurred an expense of Rs.1,00,005/-. This entire amount has been paid by the applicant himself since the respondents have refused to reimburse the medical expenditure incurred by him. On 5 03.01.2017, the doctors again gave a certificate that TAVR has been deferred due to the fragile condition of the applicant (Annexure A-19) "This is to certify that Mrs. Krishna Sharma, age 73 years old female is under my treatment is suffering from Coronary Artery Disease, Severe AS and LV Dysfunction (LVEF 35%). Earlier, she was advised for Transcatheter Aortic Valve Replacement (TAVR) but because of her fragile condition her TAVR was deferred at that time. Subsequently, she underwent PTCA/Stent to Left Main (O) on 25.06.15 at that time."
10. The wife of the applicant suffered another setback in the month of May, 2017 and was admitted in the hospital on 03.05.2017 in a state of emergency with the diagnosis of HTN, CAD, Old 1WM1, P/PTCA (2015), Severe AS, LV Dysfunction (EF 30%) and Acute LVF. Expenses of Rs.22,866/- and Rs.5300/- incurred towards the treatment have not been reimbursed by the respondents.
11. At the time of discharge on 25.05.2017 the doctors again advised TAVR (Transcaheter Aortic Valve replacement) treatment for the applicant‟s wife on urgent basis and have given an estimated expenditure of Rs.25,50,000/-.
12. Aggrieved by the attitude of the respondents, the applicant has filed the OA seeking the following reliefs :-
"a. direct the respondents to reimburse the entire amount to the Applicant till date incurred on the coronary stenting of the wife of the Applicant and subsequent 6 expenses incurred on her treatment in the facts and circumstances of the case for her survival.
b. Direct the respondents to pay the estimated amount of the total cost of procedure as pointed out by the Fortis Escorts Heart Institute in the Estimate dated 8th May
(ii) Pass any other or further orders/directions as this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case. "
13. The applicant has relied upon the following judgments in his favour :-
1. S.K.Sharma Vs. UOI 2002 (64) DRJ 620
2. Surjeet Singh Vs. State of Punjab & others AIR 1996 SC 1388
3. State of Punjab Vs. Mohinder Singh Chawla JT 1997 (1) SC 416
4. Mukti Morcha Vs. Union of India AIR 1984 SC 802
5. Consumer Education and Research Centre Vs. UOI 1995 (3) SCC 42
14. In their counter, the respondents state that the judgments relied upon by the applicant are different from the present case and cannot be made applicable to the present case. They contend that the department has provided medical facilities to its beneficiaries as per provision of CS(MA) Rules and prevailing CHGS Delhi approved rates/guidelines. Govt. of India Ministry of Health and Family Welfare vide OM No. Misc.1002/2006/CHGS (R&H)/CGHS (P) dated 29.04.2014 have fixed the ceiling rates of Drug, Eluting stents as Rs.23,625/- and the admissible amount in 7 the claim was calculated accordingly. The cost, over & above the ceiling rates is to be borne by the beneficiary as per Govt of India Guidelines.
15. Contention of the respondents is that the cost of treatment by TAVR method is very high as compared to Traditional AVR method. Hence, opinion from Cardiothoracic Surgeon from Govt. Hospitals like AIIMS, GB Pant etc. is needed to justify TAVR Method suggested in respect of the applicant‟s wife. They submit that the panel hospitals are supposed to provide cashless/credit medical facilities to beneficiaries of Municipal Pensioners Health Scheme and the department is supposed to make the payment within 60 days from the submission of the claim of the hospital. However, due to financial crisis in East Delhi Municipal Corporation, the department is not in a position to make these payments to the panel hospitals in time, hence, a number of hospitals, including Fortis Escorts Hospital are not providing cashless/credit facilities to such beneficiaries.
16. I have gone through the facts of the case & perused the records carefully.
17. In the orders dated 17.02.2016 and 23.09.2016 the respondents state that they have paid 10% of the estimated expenditure to the applicant as per orders of the Hon‟ble High Court. Since the admissible amount as per CGHS rates is Rs. 8 1,26,595/- only, hence the balance of Rs.1,13,375/-is payable by the applicant.
18. The case of the petitioner is that the treatment taken by his wife is from a government approved empanelled hospital, which is supposed to provide a cashless treatment. The road- block here is that the CGHS rates have an outer limit which the respondents are finding difficult to over ride.
19. Similar issue came up in the case of K.N.S. Bindra Vs. Union of India C.W.P. No.3763/2002 dated 12.05.2008 where the Hon‟ble Delhi High Court observed that "5. The petitioner filed the present writ petition seeking a direction for compensation of the full amount incurred towards medical expenses since Escorts Hospital is a recognized hospital under the CGHS and prayed for a further relief tha the amounts being deducted ought not to be so deducted. Interim relief was granted in favour of the petitioner against deductions of the amount which was confirmed during the pendency of the petition.
6. In our considered view the matter in issue is no more res integra in view of the plethora of pronouncements of this Court dealing with the identical situation where in CGHS approved hospitals Government servants have availed of medical facility and the bills, which have been made are alleged to be more than what is stipulated in the circulars of the Government of India. The counter affidavit in the present case only states that the amount calculated by the respondents is as per the rates approved by the Ministry of Health and Family Welfare vide its letter No.11022/198/CGHS (P) dated 4.9.1998 and thus neither is the balance amount payable nor is the petitioner entitled to the relief of restraint of deductions of the amount."
919.1 In para 7 of the same judgment, their lordships observed that :
"7. A similar circular has been discussed in the judgement of this Court rendered by one of us (Prithvi Nath Chopra...Petitioner v. Union Of India & Anr....S. 111 (2004) DLT 190 = 2004 III AD (Delhi)
569. Interestingly, the defence raised in the said case was also on the basis of the judgement of the Supreme Court in State of Punjab & Ors. v. Ram Lubhava Bagga & Ors. (1998) 4 SCC 117, which is the case referred to in the counter affidavit (without citation given). The Apex Court in the said judgement has observed that there was a right to healthy life under articles 21, 41 & 47 of the constitution of india but the Government was justified in limiting the facilities to the extent permitted by its financial resources. It is not necessary to discuss all the judgements referred to therein both of the Apex Court and this Court but the controversy as noted in paragraph 23 of the judgement was that whether the petitioner therein was entitled to reimbursement only at rates specified in the circular of 1996 or as charged by the hospital. It was observed that the Apex Court had only set out that it may not be possible to make available unlimited resources for grant of such medical treatment but it simultaneously emerged that the circular was not even strictly adhered to in all cases in view of the observations made in V.K Gupta. v. Union Of India & Another. 97 (2002) DLT 337. In fact, it was noticed in the said judgement that reimbursement was being regularly done as per actual expenses and not restricted to the 1996 circular but the same occurred only when there were specific directions of the Court. It was noticed that this was hardly a satisfactory state of affairs where an aggrieved person had to come to court every time to get the amount for the medical treatment released. Incidentally that was also a case of the Escorts Hospital.
8. Another factor which emerged from the judgements was that the Memorandum had a lifetime of two (2) years and was required to be revised from time to time. The revisions did not take place for quite some time which created its own difficulty in respect of the rates charged by the hospitals. An important aspect was that the procedure followed was such that a petitioner was 10 compelled to pay charges first and thereafter seek reimbursement while actually the whole policy had envisaged that there should be a system of direct billing by the approved hospitals to the Government since at times a patient may not have readily the finance to obtain the treatment. A writ was issued whereby the full amount was directed to be reimbursed.
20. The applicant‟s counsel, during the course of hearing drew attention of the bench to the decision of the Hon‟ble Delhi Hgh Court in CWP No.4415/2002 (Milap Singh Vs. Union of India) dated 13.07.2004 wherein it has been held that the petitioner was entitled for full reimbursement of medical expenses and not the rate specified in circular of 1996. In case of difference, CGHS is required to settle the matter directly with the hospital in case it is found that any amount is in excess.
21. Similar is the stand taken in plethora of other judgments. It is neither possible nor desirable to discuss all the judgments here. The fact is that the central government health scheme (CGHS) is a health facility scheme for the Central Govt. Employees so that they are not left without medical care after retirement. While exercising due diligence to ensure that the scheme is not misused, it is also duty of the respondents to ensure that CGHS rates are revised periodically to ensure that there is no artificial gap between the rates specified by CGHS and the actual expenditure incurred/envisaged by the empanelled hospital.
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22. The applicant in the OA has been getting his wife treated from an empanelled hospital and sharing their suggested line of treatment with the respondents. The Hon‟ble High Court of Delhi in the case of Govt. of NCT of Delhi Vs. Prem Prakash (DR) & Ors, on 20.08.2005 has held that full amount of medical reimbursement is permissible if the private hospital where treatment is taken is on the approved list of Government. In this case, the treatment is at an empanelled hospital and the emergent nature of the case, and, the care required are not in dispute.
23. The Hon‟ble Apex Court, in the case of Shiv Kant Jha Vs. Union of India, W.P.(C) No.694 of 2015 dated 13.04.2018 have held that "13. It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not 12 included in the Government Order. The real test must be the factum of treatment.
Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court."
24. The seriousness of the applicant‟s cardiac condition is borne out from the documents/certificates given by FEHI and confirmed by HOD Cardiology of Hindu Rao Hospital. It is not the case of the respondents that medical claims submitted are false or inflated. Their genuine concern however is that the estimate given for TAVR method of Treatment is very high and needs justification from other medical institutes/hospitals of repute, like G.B.Pant or AIIMS. The respondents were/are within their right to verify the estimated amount of the suggested procedure given by Fortis Escorts Heart Institute but given the gravity of the case, it should have been pursued pro-actively with either (or both) of the two institutes, impressing upon them the need for an urgent decision rather than taking it up routinely by way of a letter and waiting for a medical Board to be constituted (fate of which is still not known). This casual handling of the situation is indicative of total insensitivity and apathy of the respondents. It is indeed 13 unfortunate when retired persons are made to run from pillar to post, for redressal of their genuine-rightful claims.
25. In view of the foregoing discussions, I have no hesitation in holding that the applicant is entitled for full reimbursement of the medical treatment incurred by him till now on the treatment of his wife in FEHI, which is an empanelled hospital. The respondents are directed to reimburse the full amount incurred on the coronary stenting of the wife of the applicant as well as subsequent expenses incurred on her treatment as mentioned in the OA. This may be done within a span of three months from the date of receipt of a certified copy of this order.
26. The issue regarding (estimated) expenditure and desirability of TAVR treatment suggested by FEHI for the patient (applicant‟s wife) must be resolved expeditiously. The respondents may seek opinion from G.B.Pant or/and AIIMS, as deemed appropriate but they must ensure that the controversy is settled (if not already done) within a strict time frame of eight weeks from the date of passing of this order, as per law. The OA is allowed with these directions. No costs.
(Praveen Mahajan) Member (A) /uma/