‘Justice for Ajay Henry’, and many others – state of emergency medical care in India

“Kollam, Kerala; February 10, 2014: Ajay Henry, 22, who died following a car accident at Madannada Junction on the wee hours of 8^th January 2014, was rushed to the Kollam District Hospital for treatment and to save his life.

It was very unfortunate that there was total medical negligence resulting in the loss of life of a youth of 22 years, who could be of great value and service to the society. Although Ajay was rushed to the Kollam District Hospital just minutes after the car accident, there were no doctors present at the hospital’s casualty wing.  What’s more alarming is that the deceased was made to sit in a wheelchair for more than an hour.   There are living witnesses to this fact and they are non other than Ajay’s four friends who rushed him to the hospital and stood with him in the hospital till his last breath.

He was later transferred to Medical College Trivandrum upon Doctor’s arrival; however his friends insisted that he was taken to a nearby private hospital where he was pronounced dead within minutes of reaching…..”

This is a press release by the relatives of Ajay Henry.  They opened a face book page ‘Justice for Ajay Henry’ and several thousands have liked the page, and the cause is being pursued, in all possible ways.  The matter might have become subjudice, and hence observations touching the merits of the rival claims are purposely avoided.

The Ajay’s story raises various questions, apart from the allegations of medical negligence, namely:

1. The general conviction that medico-legal cases would be entertained only by government hospitals.
2. Exposes the sorry state of pre-hospital medical care and the basic provision for basic life support.
3. The lack of a standard protocol to stabilize the traumatized patients, when a medical practitioner is not immediately available and for a transfer to a facility for expert management.

The rate of road traffic accidents are growing at an alarming rate and the name ‘Ajay Henry’ could be substituted with any other, just for walking into an Indian Road. Hence the issue is current and relevant, especially in the light of the constitutional guarantee under Article 21 that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’

The Law Commission of India, suo moto took up the subject ‘Emergency Medical Care to Victims of Accidents’ and other Emergences’ in its 201^st report and formulated a model law ‘The Medical Treatment After Accidents and During Emergency Medical Condition Act, 2006’.  It appears that none of the state governments have taken the call till now.

The Commission’s report however has its own importance as a thoroughly researched reference document, on the subject.  The commission referring to medical literature on the subject say that the first hour immediately after the accident, widely known in the medical circles as the ‘GOLDEN HOUR’, is the period during which ‘emergency medical care’ is necessary and most victims die if no such care is available or is not given soon after the accident.  The purpose of emergency medical care is to provide ‘basic life support’ and to ‘stabilize’ the patient, so that the survival chances are enhanced.

The ‘basic life support’ means rendering basic-level emergency care, including, but not limited to, basic airway management, cardiopulmonary resuscitation, controlling shock and bleeding, and splinting fractures.  The term ‘stabilize’ would mean to provide such medical treatment of the condition as may be necessary to assure, with reasonable medical probability that no material deterioration of the condition is likely to result from or occur during the transfer of the indivual for a facility.

But unfortunately, in India, an accident victim would neither get the basic life support or the minimal medical treatment, sufficient to stabilize him.  Indian Emergency Journal (August, 2005) in its editorial says:

“The fact is that 80,000 people are killed in accidents every year…. At least 30 to 45 minutes elapse between the time of crash and arrival at hospital. 12 percent of institutions in the trauma-care-sector have no access to ambulance.  Only 50 percent of the available ambulance services possess the acute-care facilities needed to keep an accident victim alive during transportation… And only 4 per cent of personal staffing these services (have certified formal training)

The law commission would gives a more alarming data of deaths due to injuries, when it says that 4 lakh person lose their lives annually due to injuries, nearly 75 lakh people are hospitalized and three and half lakh persons who receive minor injuries get emergency care at various places in India.  However, present emergency medical support in the country is functioning sub-optimally and requires up gradation.

This discussion is however confined to the management of an accident victim during the ‘Golden Hour’.  The period is crucial for it decides whether the injured victim would survive or not.  A proper pre hospital care system may be the only answer for a proper management.  Three types of pre-hospital care are referred to in the publication of the world health organization on ‘Pre hospital trauma care systems’ as:

1.            First Responder Care,

2.            Basic Pre Hospital Trauma Care, and

3.            Advanced Pre Hospital Trauma Care.

Where no pre-hospital trauma care system exists, the first and most basic tier of a system can be established by teaching interest community members basic first aid techniques. The second tier of care can be provided at the community level by those who have been trained in the principles of basic pre hospital trauma care (also known as basic life support).  If the local considerations and imperatives dictate and if sufficient resources can be secured a third, significantly more sophisticated, tier of pre-hospital care may be added: advanced pre hospital trauma care (also known as advanced life support).  Evidently the model law that the law commission formulated also refers to the second tier trauma care.  The nature of the resources that could be mobilized also may justify the introduction of an effective system for basic life support.

A survey of the statutory protections offered to an accident victim, would reveal a bleak picture.  Section 134 (1) (a) of the Motor Vehicles Act  cast a duty on the driver of a vehicle in case of accident and injury to take all reasonable steps to secure medical attention for the injured person, by conveying the injured to the nearest medical practitioner or hospital.  The provision further cast a duty on every registered medical practitioner or the doctor on the duty in the hospital immediately to attend to the injured person and render medical aid or treatment without waiting for any procedural formalities.  This duty of the driver is not absolute, for the reason that he can always show that it was not practicable to do so on account of mob fury or he could show some other reason, preventing him taking the injured to the hospital, which were beyond his control.  The interesting part is the penalty for the non compliance of this duty; the driver would be punished with simple imprisonment for a period of three months or with fine which may extent to five hundred rupees.  The Medical Council of India, in the ethics of medical practitioners, says that a physician must not neglect a patient and that he should respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service. These statutory provisions are evidently incapable of taking care of the present day challenges.

The Supreme Court of India on its part has rendered two important judgments towards ensuring the rights of the accident victims.  In Parmand Katra v. Union of India observed as follows:

“Preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man…every injured citizen brought for medical treatment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death. … the Government of India to take necessary and immediate steps to amend various provisions of law which come in the way of government doctors as well as other doctors in private hospitals or public hospitals to attend to the injured/serious persons immediately without waiting for the police report or completion of police formality.”

In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, the Supreme Court further held that,

“the Constitution envisages the establishment of a welfare State at the federal level as well as at the state level. In a welfare State the primary duty of the government is to serve the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the government in a welfare State. The government discharges the obligation by running hospitals and health centers which provide medical care to the person seeking to avail of those facilities. Art. 21 impose an obligation on the State to safeguard the right to life of every person.”

The above observations of the Supreme Court are clear on all respects; however our law makers have not woken up even though 26 years have passed since the rights of accident victims for emergency treatment was first declared by the Supreme Court.  The Indian Parliament continues to be mute spectator, for the simple reason that public health and sanitation, hospitals and dispensaries, is an item included in the State List under the Seventh Schedule of the Constitution and therefore the Parliament considers itself incompetent to make proper legislation for pre-hospital care.  The huge financial commitment may be reason that prevents the respective state governments from making a proper state law.

However isolated efforts are being made by various state governments, even though such efforts are grossly inadequate.  In Tamil Nadu, government has established and appointed a Road Safety Commissioner under Section 215 of the Motor Vehicles Act, 1988 who has various duties including accident relief.  A Road Safety Fund has been created during the year 2000.The compounding fees and spot fines collected by Transport and Police Departments are remitted to the fund.  The fund will be administered by a committee chaired by the Home Secretary.  Among other thing the cost of taking an accident victim to the hospital is being paid from the fund.

The Law Commission however formulated a model law basing a few US statutes and the most important among them is Emergency Medical Treatment and Labour Act 1986.  The US law provides for following obligations on the hospitals

i.   The hospitals must provide all patients with a medical screening examination to determine whether an emergency medical condition exists without regard for ability to pay services.

ii.  Where an emergency medical condition exists, they must either provide treatment until the patient is stabilized, or if they do not have the capabilities, transfer the patient to another hospital.

iii.  Hospitals with specialized capabilities are obliged to accept transfers if they have the capabilities to treat them.  Medical care cannot be delayed by questions about methods of payment or insurance coverage.

It is to be conceded that running a private hospital, with all modern facilities, is not a child’s play.  It is a business intended to gain profit. The state is gradually withdrawing itself from all the welfare activities, and running of dispensaries and hospitals is no exception, as they wish to confine to core sectors, like national security, internal security, foreign affairs etc..  The state of affairs of the remaining State run hospitals does not require much elaboration, for obvious reasons.   It is during these days, that we think as to how the State could protect the fundamental rights guaranteed under Article 21, for pre-hospital care to an accident victim.

Ajay Henry turned traumatized by the accident, usual in the case of any other victim.  He had to depend on others for his survival.  If he reached the proper place within the proper time, he would have survived.  He was not poor, that he could not pay his bills for reaching the safe haven.  He was travelling in a motor vehicle, covered by a valid insurance.  The owner of the vehicle might be liable for the legal injuries sustained by him.  The insurance company therefore become obligated to indemnify the owner of the vehicle.  Hence all that was needed to save Ajay Henry was proper coordination, to give ‘basic life support’ and to ‘stabilize’ him, thereafter ‘to transfer’ him to a proper facility for expert management.

The insurance industry is facing a tough time, complying with the awards by the Motor Accident Claims Tribunal, of road accident victims.  Even though the insurance premium was enhanced several fold, this sector still continues to be uneconomical. The Industry would be therefore happy to disburse the cost for meeting the pre hospital care, to save the life of the victim, for it could substantially reduce the claims.

Lack of a proper legislation, to coordinate the activities of the various stakeholders is necessary for providing ‘basic life support’ for an accident victim.  A few suggestions, taking inspiration from the US law and the Tamilnadu experience, are put forward towards a proper co ordination of the stake holders:

i.   Amend the Constitution of India by including ‘emergency medical care’ for accident victims as an item in the Concurrent list, so that both the Union Government and the State Governments can make laws.

ii.   A service provider may be established by amending the Motor Vehicles Act or by enacting a suitable new law.  All Ambulances with the facilities and personnel capable of providing basic life support should be registered under the service provider, in order to enable the service provider to attend any emergency calls for providing basic life support to accident victims during the ‘GOLDEN HOUR’

iii.   A fund should be created to be managed by the service provider, which shall be used towards the cost of providing ‘basic life support’ and for transfer of accident victim to a proper facility.

iv.   The owner of the vehicle that met with the accident or its insurer may reimburse the cost of providing the ‘basic life support’ and ‘transfer’ to a proper facility extended to an accident victim, in a time bound manner.

v.   In cases where there is no proper insurance coverage for the accident victim, e.g.  hit and run cases, the expenses shall be met from the fund, for providing basic life support,  transfer to a proper facility and also towards stabilizing the victim..

vi.   The Union Government and the State Government may contribute towards the fund, from tax, cess, fines etc collected at various stages, from the owners of the motor vehicles and its use.

It is high time that the governments have acted, taking cue from the writing on the wall.  The scenario is sufficient indication that they are continuously violating the Constitutional Guarantee under Article 21 of the Constitution of India.  The Union Government cannot shy out from its responsibility, any further, in the guise of its legislative incompetence.

‘Justice to Ajay Henry’ cannot take a back seat, for the amendment of the name ‘Ajay Henry’ neither require the time for passing a constitutional amendment, nor a state law in this country.

Johnson Gomez is an Advocate practising in the High Court of Kerala and Member, Chartered Institute of Arbitrators, London