Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Sudhanshu Dhulia, CJ. and Manash Ranjan Pathak, J., took up a PIL wherein the counsel of the petitioner, Mr A. Chamuah had filed an interlocutory application stating that in Assam persons who were suffering from COVID, although they had an insurance cover were still not being admitted in private hospitals inspite of directions issued in this regard for taking care a COVID patients (who have insurance cover), vide order of the Regulatory Authority dated 04-03-2020.

Mr D. Saikia, Advocate General, Assam placed on record before the Court that on enquiry being done at their end, nine private hospitals were contacted in Guwahati, Dibrugarh and Bongaigaon and the replies which they had received from these private hospitals is that inspite of the late payment in many cases, have not denied admission to a patient suffering from covid, except in some cases where the employees of the hospital were also suffering from COVID. Enquiries have also been made regarding the old lady, who was allegedly denied treatment from cancer as she was suffering from COVID.

The Court granted one week time to Assistant Solicitor General of India, Mr R.K.D. Choudhury to get instructions from the Insurance Regulatory Authority and to file a detailed reply regarding the same so that there is a better position to examine the matter. Court to hear the matter on 31-05-2021.

[Lawyers Association, Guwahati v. State of Assam, 2021 SCC OnLine Gau 1100, decided on 24-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Bombay High Court: A Division Bench of T.V. Nalawade and M.G. Sewlikar, JJ., directed that the persons who are aggrieved with regard to the care and treatment amidst the COVID-19 Pandemic can approach the Court directly.

Court has taken suo moto cognizance to see that all the authorities from all the districts which are under Court’s jurisdiction become active and they remain active till the virus is active.

Bench further observed that, the Court had earlier in of the orders directed the authorities to supply information with regard to the steps taken by them to contain the spread of virus in the village area.

“…on one hand the number of infected persons in city area is coming down on the other hand the number of infected persons from rural area is going up and the trend is still in upward direction.”

Though the inter-district travel has been prevented till 31-08-2020, yet, persons from cities like Pune, Mumbai, Mumbai Metropolitan Region (MMR), etc. returned to their native places also some have bought properties in smaller cities and shifted themselves due to the virus spread.

In the line with the observations, another observation by the Court was when Justice T.V. Nalawade went for Court inspection to Jalna. He went with necessary pass and at the entry point of Jalna, he noticed that there was no strict checking and police force posted there were not asking to show pass to anybody. Casual inquiry was being made with the travellers and they were allowing the vehicles from Aurangabad side to Jalna side. This approach must have helped in spreading of the virus in the parts of this region.

Strict vigil needs to be kept and unless that is done, the authorities will not be in a position to control the things.

Further with regard to public servants, Court stated that,

“…in the situation which is created by the virus the public servants need to be tested and the servants who are useless need to be removed from the service by fling complaints against them in police station under the special Enactments like Epidemic Disease Act, 1897, Disaster Management Act, 2005 etc.”

Further, the Court expects that every order made by this Court is communicated to the authorities from all the districts which are under the jurisdiction of this Court. These orders need to be communicated to the private institutions like private hospitals as action can be taken against them under the provisions of Special Enactments.

Another complaint that the Court noted was of an infected person who had no supply of oxygen and was complaining about breathlessness, but nobody was there to supply oxygen to him. Eventually, he died that night.

Culpable Homicide not amounting to Murder

Bench stated that, when such grievance as stated above are present, it becomes the duty of the authorities concerned to fix the responsibility and give the complaint to police as such conduct is not less offence of than culpable homicide not amounting to murder.

CCTV System

Court wants affidavit of all the authorities or concerned officers to show that there is an installation of a CCTV system in isolation centers. CCTV systems should be installed in private hospitals also where the treatment is being given to infected persons.

Court added that, in our society, there are many who cannot afford to pay charges of private hospitals. It is learned that many poor persons and the persons who have no influence are not able to get admissions in hospitals even when they are infected.

Hence, in view of the above circumstances, the Court allows all those persons who have a grievance with regard to the care and treatment of infected persons to approach the Court directly.

State to supply information in respect of reservation of beds in designated hospitals and use of those beds. Information about the availability of ventilators and the deaths due to the non-availability of ventilators also needs to be supplied.

Information on action taken against negligence shown in treatment to be given to the Court.[Registrar (Judicial) v. UOI, 2020 SCC OnLine Bom 836, decided on 31-07-2020]

Case BriefsHigh Courts

Bombay High Court:  A Division Bench of Dipankar Datta, CJ and Sarang V. Kotwal, J., took up a matter highlighting the concern regarding the inflated charges for Personal Protective Equipment Kits (PPE) by private hospitals and nursing homes.

Petitioner raised the concern that in view of the pandemic, private hospitals and nursing homes have been charging for Personal Protective Equipment Kits on a cost more than the procurement costs.

In view of the above stated concern, petitioner sought a direction for imposing a cap on the prices of PPE Kits charged to COVID/NON-COVID patients in private hospitals and nursing homes.

P.P. Kakade, Government Pleader a/w Nisha Mehra, AGP for State.

Ish Jain a/w Kiran Jain a/w Amruta Thakur for respondent 4.

Therefore, Court directed the parties to file affidavit stating their responses after which on 07-08-2020, the present PIL will be taken up for further consideration. [Abhijit K. Mangade v. State of Maharashtra, 2020 SCC OnLine Bom 827, decided on 28-07-2020]

Case BriefsCOVID 19High Courts

Madras High Court: A Division Bench of Dr Vineet Kothari and R. Suresh Kumar, JJ., asked the State Government and Union of India to file status report with regard to overcharging by private hospitals amidst the COVID-19 outbreak.

The challenge that has been placed was with regard to Government Order, wherein State Government had directed that the willing patients suffering from COVID-19 disease may receive treatment in private hospitals at their own cost.

On what ground the challenge was placed?

Under the provisions of the Disaster Management Act, and Health being the responsibility of the State, the cost of such treatment for COVID disease should be borne by the State only.

Court noted the cases of overcharging in private hospitals on which a judicial cognizance could be taken place.

Thus, in view of the above, Court directed the respondent State as well as the Union of India to file their respective counter regarding the treatment and management of COVID-19 disease in private hospitals, along with the Government hospitals, where free treatment is provided to Covid patients.

Court also directed the State Government and Union of India to give details on the aspects of the cost to be borne for treatment in private hospitals, providing of caps on charges, if any and whether any complaint redressal system for overcharging by private hospitals had been developed by State Government or not.

State Government and Union of India have been giving a weeks time to file their status report and counter with affidavit.

Matter is listed on 16-06-2020. [S. Jimraj Milton v. Union of India, 2020 SCC OnLine Mad 1149 , decided on 09-06-2020]

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Lt. Governor Anil Baijal, issues an Order exercising powers under Section 18(3) of the Disaster Management Act, stating that Government and private hospitals and nursing homes situated in the NCT of Delhi have to extend medical facilities to all COVID-19 patients coming for monitoring /treatment without any discrimination.

Medical treatment should not be denied to any patient on the ground of not being a resident of Delhi.

The above Order of LG, Anil Baijal came into effect after the Delhi Government had come out with an Order which had laid the distinction between Delhi Residents and non-Delhi Residents, wherein all the hospitals operating under Delhi Government and all the private hospitals to ensure that only bonafide resident of Delhi are admitted in these hospitals.

However, treatment relating to oncology, transplantation, neuro-surgery shall continue for all patients irrespective of the place of residence.Also, any Medico-Legal Victims of road accidents, acid-attack happening within NCT of Delhi to continue for all patients, irrespective of place of residence.

Following documents were to be treated as valid proof of residence: 1) Voter ID 2) Bank/Kisan/Post office current passbook or 3) Patient Ration Card/Passport/DL/Income Tax Return filed or assessment order, or 4)Latest Water/Telephone/Electricity/Gas Connection Bill for that address, either in the name of the patient or that of his/her immediate relation like parents etc.,or 5) Postal department’s post received/delivered in the patient’s name at the given address 6) in case of minors, above mentioned documents in the name of parents’, or 7) Aadhaar card made prior to June 7, 2020.

 

Case BriefsCOVID 19High Courts

Gujarat High Court: Taking suo motu cognizance of the way private hospitals in the State of Gujarat are indulging in blatant profiteering in the time of Covid-19, the Division Bench of J.B. Pardiwala and Ilesh J. Vora, JJ., gave important directions to the State Government in relation to regulation of private hospitals; proper arrangement of sending the migrants to their homes and overall management of every aspect of governance to deal with one of the greatest humanitarian crisis the world has seen. The Court also expressed its deep respect for all the frontline ‘corona warriors’ for showing exemplary dedication towards public welfare.

Prior to issuing directions, the Bench, at length discussed the reports provided by various Government Departments highlighting the steps they have taken to alleviate the sufferings of the public. The Court further noted that how the print media highlighted the fact that Gujarat has been one worst hit with the coronavirus and how frontline ‘corona warriors’ like the doctors are not being provided with enough PPEs to protect themselves from being infected. The Bench observed that the public healthcare system is completely overwhelmed with the situation. The Court also took notice of the fact that how several private hospitals are using this situation to charge exorbitant amount of money from people to conduct tests and treatments. The Court also lamented upon the situation prevalent in Civil Hospital at Ahmadabad where the situation is such that it has ‘contributed the most in increasing the number of Covid-19 deaths in the State.’ Finally the Court also took notice of the news published in The Times of India, wherein they had pointed out how the revenue department has been issuing threats to boycott the work related to the migrants as “it is not a task meant for the employees of the revenue department”.   

Perusing various Supreme Court decisions; relevant statutory provisions, Fundamental Rights and Directive Principles of the State Policy as enshrined in the Constitution, The Court issued the following relevant directions-

  • Expressing its exasperation upon seeing that how multi speciality hospitals in the State are seeking to profit off people’s perils, and pointing out that health is a recognised Fundamental Right in the Constitution, the State is obliged to protect it. Therefore the Government was directed to initiate legal proceedings against all those private / corporate hospitals that are not ready and willing to honour the understanding arrived at with regard to treating the COVID19 patients. Directions were given to the State Government to initiate talks with certain excluded multi-speciality hospitals and enter into a MoU with them. The Court further pointed out that in times like these; the private hospitals have both moral and legal obligations.
  • The State Government was directed to issue a Notification making it mandatory for all the multi-speciality private / corporate hospitals in the city of Ahmedabad and on the outskirts to reserve 50% of their beds (or such other capacity, as the State Government may deem fit and proper on the basis of the increase in the number of cases). Furthermore the State Government should explore the possibility of extending Ayushman Bharat project to the private hospitals as well.
  • Regarding the situation persisting at the Civil Hospital in Ahmadabad, the Court directed the Government to transfer the doctors not working properly in the hospital to other districts; improve working conditions of the resident doctors; ascertain accountability of senior officers who have failed to improve the health care provided by the hospital; increase the number of hospital beds and ventilators etc.
  • The Court directed the Gujarat Government to adopt the policy of State of Maharashtra, to ask the general physicians to run their own clinics or serve in the Government COVID hospitals. It was further directed that the Government must ensure the procurement of testing kits thereby enabling the private players to carry out Covid testing at Government prescribed rates.
  • The Railway authorities were directed to waive of one way charges of migrant labourers or in the alternative, for the State Government to bear such charges.
  • Finally taking a stern notice of the actions of the revenue department in issuing threats to boycott the tasks related to the migrants, the Court directed to State Government to take strict actions to resolve the issue.

Giving out concluding remarks, the Court drew an analogy between the Covid- 19 crisis and the time when Titanic sank. Pointing out that how only 1 ship ‘The Carpathia’ which was farthest away from the sinking ship was the one and only to respond to the distress call sent out by the Titanic. Commenting that in an unprecedented crisis such Covid-19, all the organs of the State; the private players; the NGOs all must try to emulate the spirit of The Carpathia and try to work together to alleviate the sufferings of the people, especially the poor. [Suo Motu v. State of Gujarat, Writ Petition (PIL) No. 42/2020, decided on 22-05-2020]

Case BriefsCOVID 19High Courts

Telangana High Court: In the instant PIL wherein the petitioner challenged the Government Order Rc. No. Spl /COVID-19/DMHO/HYD/2020 dated 11-4-2020 (hereinafter the G.O.) via which the State of Telangana did not permit well equipped private hospitals and diagnostic centres to conduct diagnostic tests for COVID-19 virus and to admit patients for isolation and treatment, the Division Bench of M.S. Ramchandra Rao and K. Lakshman, JJ., held that the aforementioned G.O. is not only violative of Arts. 14 and 21 of the Constitution but also of the principles of natural justice, as it is not a reasoned Order. It was also held that the State cannot compel its residents to get their testing done only in Government designated hospitals, especially when the people are willing to pay for the tests conducted by ICMR approved private hospitals.

The petitioner via his counsel V. Venkata Ramana, argued that the G.O. is arbitrary and illegal and therefore the Court should set it aside and direct the Government of Telangana to allow well equipped private hospitals and test centres to deal with Covid-19 crisis as well. The petitioner further contended that the G.O. in question, does not state reasons as to why the private hospitals and diagnostic centres have not been allowed to screen people for Covid-19 virus. It was stated that the Government hospitals that have been identified for the purpose of testing and treatment of Covid- 19 patients have inadequate facilities; and that there are several private hospitals that are willing to screen Covid-19 patients. It was submitted that S. 2 of the Epidemic Diseases Act, 1897, does not mention anything that enables the State Government to restrict private hospitals from conducting tests for determination of the disease or from treating the patients with symptoms. Furthermore all citizens should have a right to choose where they can undergo tests and treatment if tested positive for COVID-19, and the respondents cannot compel them to use only Government operated facilities. Appearing on behalf of the Government, the Additional Advocate General denied the petitioner’s contention and argued that the petitioner has simply relied on news reports to substantiate his plea. However the respondents failed to explain the legal basis for the State to compel the citizens to have samples tested only in State identified laboratories. Given the importance of the matter, the Court deemed it fit to suo motu implead the Indian Council of Medical Research.

Upon proper perusal of the facts and contentions, the Court pointed out that the G.O. does not state reasons to exclude private hospitals from testing and treating, therefore it essentially violates a well known principle of Administrative Law – every action of the State which affects the rights of citizens must be supported by reasons so that a Court, while judicially reviewing it, know that there was application of mind by the issuing authority. The Court observed that given the population of the State, only designated government hospitals cannot deal with the current crisis, therefore if there are people who are able to afford private testing and treatments, then this can take away a great deal of load from the government resources, which then can be utilised better to provide facilities to the poorest of poor. Finally, appreciating the petitioner from bring such an important matter to Court’s notice, the Bench held that the residents have right to get their samples tested either from Government approved hospitals or ICMR approved private hospitals. The Court directed all private hospitals, who wish to provide treatment/ isolation for COVID-19 patients (other than the ones already granted such approval by the ICMR), shall make an application to the ICMR offering their facilities for the said purpose. [Ganta Jai Kumar v. State of Telangana, 2020 SCC OnLine TS 482 , decided on 20-05-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and S.S. Shinde, J., addressed a Public Interest Litigation filed highlighting issues being faced in private hospitals of Mumbai with regard to COVID-19.

Grievance for which the present Public Interest Litigation was filed is listed in a three fold manner:

  • private hospitals not admitting COVID-19 Patients
  • Private Hospitals Charging Exorbitant amounts for treatment of patients taking advantage of lockdown
  • test reports issued by private hospitals certifying patients as not affected by COVID-19 not being accepted by Corporation and made to undergo fresh test.

Varsha Jagdale on behalf of the petitioner submitted the above grievance and prayed for appropriate directions.

Court adjourned the petition till 22-05-2020 in order to enable Government Pleader, Purnima Kantharia to represent State and  Yamuna Parekh for the Respondent MCGM to obtain appropriate instructions with regard to the grievance. [Sarika Singh v. State of Maharashtra, PIL-CJ-LD-VC-6 of 2020, decided on 19-05-2020]

Case BriefsCOVID 19High Courts

Madras High Court: S. Vaidyanathan, J. dismissed a petition filed for a direction to both the Union and T.N. Governments to increase a number of private hospitals to provide medical aid to the Corona infected patients instead of confining them in carriages for treatment, on the ground of lack of sanitation and infrastructure.

The petitioner contended that both the Central and State Governments, instead of adding infrastructure facilities in private hospitals, have chosen to provide treatment to Corona affected persons in carriages for the reasons best known to them and those carriages would not have been maintained with proper sanitation, thereby leading to a health hazard to patients, who are going to be confined therein.

After hearing the submissions made by the Railways, the Union, the Ministry of Health and Family Welfare and the State and its Health Department, the High Court found that the Government is to going to use carriages only as isolation wards and not hospitals for the “present” and they are preparing for untoward incidents that may arise as in USA, England, Italy, Spain, France, etc. The Railways categorically submitted that coaches, which are going to be used for accommodating mildly and very mildly Corona infected persons, will be moved to particular places and villages having no place for isolating them to ensure maintaining social distancing. Such converted coaches will not be provided with any ventilators for giving treatment to patients, clearly meaning thereby that the Government have no idea to substitute coaches for private hospitals.

Applauding the effort of Government and Railways, the Court stated:

Prevention is better than cure. In case of emergency in future, the Corona affected patients cannot be made to run from pillar to post to isolate themselves, in case they do not find suitable places / beds for isolation and therefore, with the vast vision, the Government has decided to convert coaches as mobile isolation wards to meet the emergent situation, which cannot be faulted with. The coaches can be easily detached for the purpose of isolation in order to maintain social distancing, than a pucca constructed building.

The Court was also of the view that the person like the petitioner should understand that he should not always make hurdles to the remedial measures taken by the Government and he must be slow in filing such type of petitions, which will create a kind of desperation and vexation in the Government machinery and slow down the process.

Noting that the petition appeared to have been filed only with intent to gain publicity and it has no public interest, the Court held that the Policy decision taken by the Government for conversion of coaches cannot be blindly interfered with by this Court, unless it is perverse or illegal, as it involves the interest of public at large and this Court cannot sit on the administrative side and express its view in respect of conversion of coaches. Also, while deciding the petition, the Court made some important discussions and observations:

Increasing number of private hospitals

The Court said that it cannot issue a blanket direction to the Government to increase the strength of private hospitals to treat Corona infected persons and in that event, the hospitals, which have been constructed violating the sanctioned building plan, may also seek for regularization of the plan on the ground that they were given permission by the Government to treat Corona patients. Moreover, insofar as private hospitals are concerned, it cannot be

expected that all are always service oriented, as the administration of certain private hospitals has already gone into the hands of Corporate agents/money mongers and by using the present scenario, they will certainly attempt to mint money, instead of providing proper and good care to patients.

Doctors, nurses, police, last grade employees, and officials

Expressing profound appreciating for their services, the Court observed that if the Doctors do not fall prey to exploiting private hospitals, their profession is the best in the world and their noble services are exploited by handful of private hospitals for their benefit by extending peanuts to them. Of course, there are always a few bad nuts in any profession and the medical profession is not an exception. It said:

In this critical situation, the yeomen services that are being rendered by Doctors to Covid patients cannot be let slip from memory forever and this Court really extends its profound appreciation to Doctors, Nurses, Police, Last Grade Employees of Corporation and the Officials of the Health Department.

Converting private colleges and hostels for accommodating migrants and roadside dwellers

A Single Judge is not empowered to comment anything on the matter, pending before the Division Bench. It cannot be lost sight of the fact that after normalcy is restored, the parents will be reluctant to permit their children to study in those colleges/stay in the hostels, thinking that those places ought to have been used for isolating Corona affected persons and in that event, the privates colleges would incur financial loss and the loss cannot be recovered from anyone, much less the Government, as the Government itself is in severe financial crisis due to unforeseen pandemic outbreak. Moreover, it is very difficult to fumigate structured buildings, whereas it is very easy to fumigate Railway coaches, which are ambulatory in nature and the people, who are very sick can easily be transferred to higher centres.

Article 21 of the Constitution

The petitioner, in the midst of argument, drew reference to Article 21 to state that the decision to confine Corona affected persons amount to violation of liberty guaranteed under that Article. On this issue, the Court said that the petitioner must realise that:

Covid Virus does not know any Law, much less Article 21 of the Constitution of India and it will invariably affect rich and poor, stronger and weaker sections irrespective of caste, creed and religion and therefore, the said contention is not acceptable.

Lessons to be learnt and post-Corona World Order

In his own words, Justice Vaidyanathan said:

Corona Virus teaches several lessons to everyone. There cannot be any difference of opinion with regard to the fact that human beings cannot wage a battle against Nature and it is the Nature that will always win the war and we, being human beings are only mortals. I am sure that this Virus will change the entire World Order and survivors of this generation could see the differences between post Corona and pre Corona impact in all over the World.

Injunction & penal liability against videographing online court proceedings and exposing on the web or telecasting

Before parting with the order, the Court emphasised that though Court proceedings are conducted through Zoom Video Conference by utilising the services of private service providers on account of the national disaster of pandemic outbreak, it should not at any cost be videographed and left exposed on the open web and in such an event, appropriate action will be taken against persons, who are responsible for such misdeed and will be punished under the penal provisions. Further, no Court proceedings shall be telecast without taking prior permission either from the Chief Justice and the concerned Judge/Judges.

Concluding, the High Court was of the view that the direction sought for in the petition cannot be issued and if any negative direction is issued in this case, that will reduce the energetic services being rendered by the personnel of various departments and therefore, the writ petition was liable to be dismissed. [M. Munusamy v. Union of India,  2020 SCC OnLine Mad 915, decided on 09-04-2020]

Case BriefsSupreme Court

Supreme Court: In the case relating to medical negligence where it was contended that the treating physician should have been well advised to ask for a Lever Function Tests (LFT) as that was absolutely necessary but the same was not done which amounted to gross negligence, the petitioner urged that neither the Union of India nor the Medical Council of India nor the State Governments are prescribing any guidelines for treatment of the patients in the Intensive Care Units (ICU) or Critical Care Units (CCU) and also that there is no proper care at the stage of operation or post-operational stage.

Considering the above-mentioned contention and the fact that the medical negligence cases are increasing especially in private hospitals, the bench of Dipak Misra and U.U. Lalit, JJ issued notice to the Union of India, the Medical Council of India and to all the State Governments represented by the Health Secretaries and asked them to submit their reply within 6 weeks from the date of this order. [Asit Baran Mondal v. Rita Sinha, 2016 SCC OnLine SC 827, Order dated 17.08.2016]