Kerala High Court Quashes Proceedings Against Aster Medcity, Doctors Accused Of Flouting Organ Transplantation Protocol

The Kerala High Court on Tuesday quashed the criminal proceedings against Aster Medcity and nine doctors who had been accused of violating the provisions of the Transplantation of Human Organs and Tissues Act, 1994.Justice Ziyad Rahman A.A. passed the order. Factual BackgroundThe case arose from a complaint filed by Dr. S. Ganapathy against Aster and the accused doctors alleging that the provisions of the Act,1994 were violated while performing organ transplant at the hospital. The matter pertains to the declarations of brain death made by the medical practitioners in Aster Medcity, with with the help of the other doctors empaneled by Appropriate Authority constituted under the provisions of the Act, 1994, of a 19 year old patient named Ajay Johny, and a lawyer Adv. Suresh, and the transplantation of liver of the said Johny initially to Suresh, and later to another patient. Johny, who was injured in a car accident, was admitted to the 1st petitioner hospital in March, 2019. The complainant alleged that the doctors attempted to transplant the liver of Johny to Adv. Suresh, who had been admitted there earlier for liver cirrhorsis, even before confirming the Johny's brain stem death. The complainant alleged that the doctors knew that Adv. Suresh did not require liver transplantation and was leading a normal life, and the doctors, by compelling him to undergo such transplant, had committed the offence of cheating. It was alleged that Adv. Suresh was informed of the brain death of Johny 12 hours before the declaration of the latter's brain death, thereby violating the provisions of the Act, 1994, and various rules thereunder. The complainant pointed out certain shortcomings in carrying out the tests for the purpose of declaration of brain death of Johny, and averred that the accused persons had hatched a conspiracy to carry out the transplantation. However, subsequently, Adv. Suresh passed away due to certain medical complications, and the complainant alleged that Adv. Suresh's wife was also persuaded by one of the accused doctors at the hospital to donate the organs of her husband. The complainant alleged that Adv. Suresh had been declared dead 16 hours before the actual declaration of brain death. The complainant thus alleged that the hospital and the accused doctors had flouted the protocols for certifying brain death and harvesting the organs for transplantation.Judicial First Class Magistrate Court, Ernakulam, had taken cognizance of the matter in November 2021, and issued summons to the accused persons..It is against the same that the petitioners filed the present plea before the High Court seeking to quash the proceedings against them, claiming they had adhered to the rules and protocols while certifying the brain death of the deceased.Findings of the Court The Court noted that certain Government Doctors had also been named as accused persons in the case, since they were members of the Board of Medical Experts in their capacity as empanelled doctors for the conduct and certification of the brain death test of Advs. Suresh and Johny. It was contended on behalf of these doctors by their counsel that sanction under Section 197 Cr.P.C. ought to have been obtained before cognizance was taken, which was not complied in the present matter. The Court in this aspect, rejected the argument of the complainant that sanction is required only in respect of public servants not removable from their office save by or with the sanction of the Government, and the Government Doctors in the present case would not come within the ambit of the same. It also noted that anything done by a public servant in the discharge of his duty or in the purported discharge of the duty would come under the protective umbrella of Section 197 Cr.P.C. "The offences alleged to have been committed by them while they were in discharge of the said duties, and therefore, they are entitled to protection as contemplated under section 197 of the Cr.P.C. In this case, admittedly, the learned Magistrate has taken cognizance of the offences against the said accused without obtaining permission from the Government under section 197 of the Cr.P.C. Therefore, the order of taking cognizance is without following the mandatory requirement of section 197 and hence all further proceedings against the accused Nos 8,11 and 13, are liable to be quashed on that sole ground," the Court observed. The Court observed that the Offence under Section 18 of the Act, 1994 ('Punishment for removal of human organ without authority') would not be attracted in the present case since the transplantation was done in a Hospital having registration under Section 15 of the Act, the tests as contemplated under the Act and rules by the Board of Experts was conducted, and the same was also certified in Form 10 and signed by all the members of the Board of Experts. The Court could not find any reasonable grounds for attracting the offence under Section 18, as had been highlighted by the...

Kerala High Court Quashes Proceedings Against Aster Medcity, Doctors Accused Of Flouting Organ Transplantation Protocol

Navya Benny

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