Bombay High Court: The Division Bench comprising of Ravindra V. Ghughe and B. U. Debadwar, addressed the issue relating to supply of dysfunctional ventilators through PM Cares Fund. The Bench slammed the Center for contending that the ventilators were in working condition and the deficiencies were with the hospital staffs, the Bench remarked,
“We would have appreciated had the affiant avoided entering into a blame game and instead shown sensitivity towards the patients, it being the paramount object of the welfare State to take care of the health of its citizens.”
Whether the Ventilators Supplied through PM Cares Fund dysfunctional?
Regarding the use of the 113 ventilators supplied through PM Cares Fund a report was prepared by the Committee of eight doctors of the GMCH who deal with ICU and the utilization of ventilators. The said report indicated that the ventilators developed errors from day one. About 25 ventilators were installed in the Medicine Department and 25 ventilators were distributed to the District and private hospitals. All such 25 ventilators were returned by the ICU departments of the concerned hospitals, as they were not functioning properly and patients had started complaining about breathlessness and associated symptoms within hours of the ventilators having been switched on. The report suggested that Private hospitals also returned the ventilators stating that they were not working properly. Although, a Team of three technicians of the Manufacturer visited the GMCH, and a Company Service Engineer joined the Team and calibrated `in-put oxygen’ regulators of two ventilators, they worked well overnight and next day by afternoon patients complained about poor oxygen and showed signs of restlessness.
The Committee noted that even after major repairs, the results indicate the failure of the ventilators. In the final conclusion, the Committee opined that these machines are unsafe for patients use and it was decided not to test any of these machines on patients, henceforth.
Stand Taken by the Central Government
The ASGI contended that the alleged 150 ventilators were never supplied through the P.M. Cares Funds thereby, completely denying that these ventilators were funded through the P.M. Cares Funds, as was earlier announced. However, to defend the same, ASGI submitted that the ventilators manufactured by M/s Jyoti CNC Automation Limited, were modern ventilators, which were highly complex and sophisticated medical equipments. Shifting the blame on the Hospitals the ASGI contended that Doctors and paramedics were not properly trained to operate such ventilators at Aurangabad. It was also submitted that after the Dean of the Government Medical College submitted a report, the MoHFW sought an explanation from the Manufacturer and as per the said explanation there was no material before the MoHFW to conclude that the ventilators were not working satisfactorily.
Explanation Given by the Manufacturer
On the other hand, the Manufacturer alleged that the Government Medical College, Aurangabad was non-cooperative right from the acceptance of the delivery and the local District Collector had to direct the GMCH for unloading and accepting the ventilators. It was submitted that there was nothing on record to demonstrate that the ventilators were malfunctioning. Applying the same scheme as that of Central government, the Manufacturers contended that the user manual and training videos were not followed by the operators and that the infrastructure available at the GMCH is inadequate hence, the ventilators were not being used properly. Lastly, it was argued that 300 ventilators were performing satisfactorily in other States of India and other regions of Maharashtra and Aurangabad, therefore, there was no fault on the part of the manufacturer and it could not be held responsible for inadequacies on the part of the GMCH.
Observations and Findings of the Court
The Amicus curiae highlighted before the Court that not a single hospital/institution which was delivered with such ventilators had submitted that even one ventilator was operating satisfactorily. Noticing that the subject “Public Health and Hospitals” is at entry-6 in the State list and the legislative powers as well as executive and administrative powers of the State Government pertaining to the said subject are covered by Article 162, the Bench opined that it is the State Government which would be answerable on this subject. Hence, before accepting or acquiring such medical equipments/instruments by any medical facility/hospital, the State Government should make it mandatory for the Manufacturer to undertake fullest cooperation and assistance in the event of the equipment becoming dysfunctional. The Bench slammed the Center Government stating that,
“We are unable to appreciate the contention of the ASGI that the ventilators are in perfect operating conditions and it is the hospitals who do not have trained personnel to operate the said ventilators properly. We find that such statements demonstrate insensitivity on the part of Ministry of Health and Family Welfare (MoHFW).”
The Bench opined that instead of expressing whole hearted support to ensure that such costly instruments are put to optimum utilization in the interest of the lives of the patients, the affiant found it advantageous to contend that there was no merit in the report of the Dean of the Government Medical College. Hence, the tenor of the Center government was that the ventilators were in working condition and the deficiencies were with the hospitals and the doctors/paramedics/technicians. On such submissions made by ASGI, the Bench expressed,
“We find that he (ASGI) is questioning the report of the Dean, and does not even remotely refer to the six reasons as regards the malfunctioning of the ventilators cited by the GMCH. The ASGI has addressed us as if he is holding the brief for the Manufacturer.”
In the backdrop of the above, the Bench directed the MoHFW to take all remedial steps and ensure that the ventilators would operate normally and all defects, if any, would be removed. The Bench warned the MoHFW to refrain from questioning the reports of the Medical Experts and respect the same in the larger interest of the society and concentrate on rectifying the ventilators.
Overcharging by Ambulance Operators
On the issue of ambulance operators openly demanding multi-fold times of the approved rates of Ambulances as disclosed by an sting operation carried out by a local reporter, the Bench held that since the District Collector of every district is the authority under the Disaster Management Act, all aggrieved patients/relatives of patients would be at liberty to complain to the District Collector, if they had suffered such overcharging of Ambulance fare and the District Collector would deal with such complaints in accordance with the procedure as is laid down.[Registrar (Judicial) v. Union of India, 2021 SCC OnLine Bom 761, Order dated 28-05-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole