Case against lakeshore, Kochi, Kerala

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IN THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-VIII,
ERNAKULAM
Present: - Sri. Eldos Mathew,Judicial I Class Magistrate-VIII
Dated this the 29th day of May, 2023
Crl.M.P No. 1004/2021
Complainant :-
Respondents: -
------ - --- . - - - - - -.--- - - - - . - .. - ~ -- - - -
Dr. S. Ganapathy, aged 73/21,
S/o.Late Adv. K. Sadanandan, residing at Anjali,
Maruthadi P.O., Kallam, Kerala - 691 003
(Rep By Adv.Santhan V Nair)
1. Lakeshore Hospital and Research Centre Pvt. Ltd.
(presently known as VPS Lakeshore Hospital) NH66,
Bye-pass , Nettoor, Maradu, Cochin-682 040
represented by its Chairman and Managing
Director
2. Dr. Philip Augustine, Senior Gastroenterologist,
No.35/194-B, Symphony, Automobile Road, Near
Renai Medi-city Ernakulam - 680 025
3. Dr.S Mahesh Surgical Gastroenterologist,
Lakeshore Hospital & Research Centre Pvt. Ltd,
NH-Bye pass, Nettoor, Maradu Cochin - 682 040
4. Dr. George Jacob Eraly, Senior Consultant, Surgical
Gastroenterology, Lakeshore Hospital and
Research Centre Pvt. Ltd, NH -66 Bye-pass
Nettoor, Maradu, Cochin - 682 040
5. Dr.Sai Sudarsan, Neuro Surgeon Lakeshore
Hospital and Research Centre Pvt. Ltd, NH -66
Bye-pass Nettoor, Maradu, Cochin - 682 040
6. Dr.Thomas Thachil, Medical Superintendent
Lakeshore Hospital and' Research Centre Pvt. Ltd,
NH -66 Bye-pass Nettoor, Maradu, Cochin - 682
040
7. Dr. Murali Krishna Menon, Neurologist, Lakeshore
Hospital and Research Centre Pvt. Ltd, NH -66
Bye-pass Nettoor, Maradu, Cochin - 682 040
8. Dr.Sujith Vasudevan, Consultant Physician,
Lakeshore Hospital and Research Centre Pvt.Ltd,
NH -66 Bye-pass Nettoor, Maradu, Cochin - 682
040
9. Dr. Sajeev S, Vadakkedan, Neuro Surgeon, Mar
Baselios Hospital Kothamangalam Ernakulam
District - 686 666
.,
This application having been heard on this day, the court delivered the
following: -
ORDER
This is a private complaint filed u/s.22(1)(b) of the Transplantation of
Human Organs Act, 1994 read with Section 190(1)(a) of Cr.P.c.
. 2. The brief facts in the complaint is as follows:- On 29.11.2009 at
8.30 Pm, one Abin V.J, met with an accident when his motor cycle rammed an
electric post and he sustained head injury. He was admitted in Mar Baselious
Hospital, Kothamangalam at 8.58 p.m. On 30.11.2009 at 4.15 am, he was
shifted to the Lakeshore Hospital, ,Ernakulam where he was geclared brain
dead at 7.00 pm on 1.12.2009. His Kidneys and Liver were harvested in
contravention of the Transplantation of Human Organs Act, 1994 (Preamended).
3. According to the complainant, the victim was denied proper
treatment at Mar Baselios Hospital as well as at the Lakeshore Hospital,
Ernakulam making the relatives believe that he is brain dead and thus induced
them to donate his vital organs. According to the complainant, the respondents
acted in criminal conspiracy and denied proper treatment to the victim and his
organs were transplanted to a foreign national in violation of the prescribed
laws and amassed huge money for the hospital and thus the respondents have
committed the offences under section? 109, 120B, 420, 302, 379 r/w 34 IPe
and Section 18, 20 and 21 of the Transplantation of Human Organs Act, 1994
(pre-amended) (Hereafter referred to as TOHO Act).
4. The complaint was filed as per the provisions under section 22( 1)
(b) of TOHO Act. He filed representation before Appropriate Authority on
25.9.2019 calling upon them to initiate action against respondents. As there
was no action, on 5.7.2020; he sent another notice showing his clear intention
to approach before the court of law, in case no action is taken by the Authority.
.Still Al:Jthprity did not take any action. So he filed this complaint under section
'. >i2(,i)(b)'~lthe TOHO Act.
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5. On receipt of the complaint, proceeding under Chapter XV of Cr.P.C
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was initiated and sworn statement of the complainant was recorded and
document Pi to P20 were marked from the side of the complainant. The
complainant filed a list of witnesses to be examined and Dr. P.S.Sanjay, District
Police Surgeon was examined as an -additional witness. The supplementary
post mortem report was marked as document P21. Another witness cited by
the complainant Dr. Rema could not be examined since she expired.
6. The court called for the opinion of Dr.Thomas Iype, Professor and
Head of Department, Department of Neurology, Medical College Hospital,
Thiruvananthapuram u/s.202 Cr.P.c. His report is marked as C1.
7. The sworn statement of the complainant was recorded on
23.7.2021. He is a Doctor by profession residing in Kollam. He came to know
about the facts of this case through a news paper report dated 12.1.2019. He
enquired the nitty-gritty of the case and found that organ transplantation has
been conducted in gross violation of the then existing laws in this field and also
obtaining consent of parents under misrepresentation. According to him, the
brain death has been certified by the team of doctors who has not been
authorised for this purpose. They have not .conducted Apnoea Test to confirm
brain death and organ was transplanted to a foreign national in violation of the
provisions under the Act. The major latch on the part of these two hospitals
wherein the injured Abin was admitted was the non-evacuation of blood from
cranial cavity.
8. Dr.P.Sanjay (CW2), Assistant Professor, Department of Forensic
Medicine, Government Medical College, Manjeri conducted Autopsy on the body
of the victim. According to him, there was significant collection of blood in the
cranial cavity over the brain due to extra dural and sub dural hemorrhage
(SDH) which had not been drained surgically by putting single hole on the skull
/:;:-lq?~) though victim was examined by Neuro surgeons at these two
,-:;:;.,.,.-~:~.;. ...~;:. s (~:::.. ..:'--~
;~:~~~~3Bj~.~~~~:~:;~e raised a strong suspicion over the non-evacuation on the blood
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though he was admitted in the hospital soon after the acci.dent and was
consulted by a Neuro surgeon. Another lapse pointed out by him is that Abin
was not subjected to hematoma evacuation or neuro surgery at the Lakeshore
hospital either. On 30.11.2009 at around 3.00 pm, though the victim started
respiring himself, the hospital authorities surprisingly downgraded the
ventilator settings to C-PAP mode and the Neurosurgeon decided to observe
him. According to CW2, Abin had no significant brain injury in the form of brain
contusion or brain laceration. According to him, evacuation of the blood could
have been life saving for Abin. He also opined that Abin had died due to non
evacuation of hematoma over brain.
9. He has further stated that the declaration of brain death was not
done as per the procedure mentioned in the prescribed Form of the Act. In the
case sheet, there is no evidence that Dr. Philip Augustine examined the patient
for brain stem death. But certificate is seen signed by him. Another doctor
named Sujith Vasudevan has only Karnataka registration, has signed the
certificate. The case records do not reveal that those four doctors signed the
Brain Death Certificate, have consulted the patient at an interval of 6 hours.
The APNOEA test is also not seen conducted in this case. Another anomaly is
that even before the declaration of death, the transplantation team was given
access to the patient and his liver was transplanted to a Malasian National
contrary to the provisions.
10. Dr. Thomas Iype after verifying the case records reported that
procedure for transplantation of human organ has not been complied with in
this case. He also opined that there was subdural hematoma with significant
midline shift as evidenced in the repeated CT scan and it was a definite
indication before the evacuation of subdural hematoma. He is also of the
opinion that APNOEA test was not performed and the procedure for brain death
cof1flf.!IlaJt9n was illegal. His report is marked as C1.
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,::;;;-:\;;.c:g'<~:':J~;;:~~'1;[~h:Ave heard the counsel and perused the records. The discharge
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summary of Mar Baselios Medical Mission Hospital, Kothamangalam is
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produced as document No.19 and case sheet of Lakeshore Hospital is marked
as document No.20. The summary of these two case sheets are extracted
hereunder.
Date and time -_.. __._--- . -- .. __._.-Description ~-~.~ .._--_.._... -_.._--~- - ._-.._..-- .. ----_... - .__ .. ... _------.- -.
29.11.2009 at The motor cycle in which Abin P.J. travelled hit on an electric
8.30 p.m. post and he sustained head injury
.-..._.-_ ....
29.11.2009 at Abin V,J. was admitted at Mar Baselios Hospital,
8.58 p.m. Kothamangalam. He was examined by Neuro surgeon
I Dr.Sajeev (R9). CT brain shows extensive SAH, brain
I edema and SOH. Patient intubated and connected to
ventilator
30.11.2009 at Patient was admitted at Lakeshore Hospital. (Document
4.15 am No.20 is the Case Record. Its page Nos.l to 22 are the
Doctor's case sheet, Page Nos.23 to 27 are the treatment
records of SICU. Page Nos.37 to 45 are the nurse's chart.)
30.11.2009 at Patient was received at emergency records (Page No.37)
5.20 am
30.11.2009 at Discussed with Dr.Sai. advised ILO admission, blood routine,
RFT, Na, K, RBS, HIV, HBsAG, Anti HCV, blood group, xray
chest
5.30 am
---------------- - . --_..__._-------_._-._----_._--_._----------- -_._._._- - .
30.11.2009 at CT brain done, shift to SICU -
6.10 am
130.11. 2009 at Patient received at SICU
6.45 am
.. ----.--_._--_.-..-
30.11.2009 at Dr.Sai visited the patient and recorded in the case sheet
9.00 am (page No.24) Acute SOH with left fronto Parietal
collection with mass effect and mid line shift. He
recorded the plan to stop paralysis and to observe. He
explained the poor prognosis to the relatives .
._----_._..__ .. __....._---_._ .. _.-....... . ._. -_.. - ._----.-_ ..,_ .. __..._...__ .-_ ...----- . - . _...__ .......-..
30.11.2009 at Dr.Sai visited the patient. Patient started breathing about 10
3.00 pm . breaths per minute. Ventilator changed to 1(' path mode. ._....__._.__.- -
-_. .:.':'-''''::-
1.12.2009 at
11.00 am
Dr. George Jacob, Gastroenterologist (member of liver
transplantation team) visited the patient. He ordered to
take liver function test, TC & DC as seen page No.26, 41.
The result of vitals is informed to Dr. George Jacob on the
same date at 1.00 pm as seen page No.42.
1.12.2009 at Dr. M. K. Menon, Neurologist visited the patient and declared
1
,1.40 pm him clinically brain stem dead (see page No; 19)
f---'--,-----f-------------------------'-----'--------------------------------,
1.12.2009 at Dr.Gursha Singh (Doctor of gastroenterologist
4.30 pm transplantation team visited the patient and prescribes for
HBSAG, HIV, alp, HCV later these tests are struck off
noting that done (see page No.17)
1.12.2009 at
6.25 pm
1.12.2009 at
7.00 pm
Dr.Sujith Vasudevan visited the patient and declared that
patient was clinically brain dead (page 21 & 43)
Dr. Mahesh 5., (Surgeon and member of the surgical
Gastroenterology team) examined the patient and declared
that clinically brain dead (See Page No.13)
2.12.2009
1.12.2009 at
7.15 pm
1.12.2009 at
10.00 pm
Patient's relatives willing for organ donation (liver, both
'kidneys) (see page 13)
------------------------
Patient taken up for organ harvest. Laparotomy, sternotomy
- no evidence of intra-abdominal, intra-thoracic organ
injury. No evidence of infection. Both kidneys and liver
harvested. Cardiac arrest 3.00 am (2.12.2009) page 13 of
Ithe case sheet
f-----------+---------------------,--------- -
Dr.Sai writes in the case sheet at page 21. Patient stopped
breathing yesterday afternoon at about 3.00 PM and was
declared bread dead after consulting with Dr.Murali
Neurologist. Option for organ harvesting was discussed with
the relatives arid the transplant team was contacted.
Relatives consented for organ donation and organs were
harvested. Body was handed over to police for post mortem L- --'- ,_, ,_, , _.' __
12. Document No.16 is the certificate of brain stem death signed by
four doctors viz. 1) Dr.Philip Augustine, person in charge of the hospital, (2)
Dr.Sujith Vasudevan, independent medical practitioner nominated by the
appropriate authority, (3) Dr. Murali Krishna Menon, Neurologist nominated by
th~.b..Q.,?pital, (4) Dr.Sai Sudarshan, registered medical practitioner treated the
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.>~~r~~~~)Q~OUSly, Brain stem death Certificate is not prepared in Form No.8
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!g;~~~:p~~~~~~\~~;~~~.0~~~~~~~,No.18 is the lab report in which HIV test was
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reported negative on 30.11.2009 at 11.12 am. Document No.7 is the report
given by Hospital (R1) to the Police in which Hospital Authorities have admitted
that sanction of Internal Authorisation Committee for transplantation cOuld not
be traced out. Its annexure No-2 is the Malasian Embassy Certificate, in which
the wife of the recipient is shown as the donor. In addition to this, I have also
looked into the statutes like the Transplantation of Human Organs Act,1994
and Rules, 1995 (pre-amended), Indian Medical Council (Professional conduct,
Etiquette and ethics) Regulations, 2002, The T-C Medical Practitioners Act,
1953, and the Rule, the Indian Medical Council Act, 1956, etc.
13. Before, considering whether there are sufficient materials to
commence proceeding under chapter XVI of Cr. P.C, briefly, I may discuss the
relevant rulings. Referring to the Judgment in Sunil Bharti Mittal vs. Central
Bureau of Investigation (2015 {.4} SCC 609), the Hon'ble Apex Court held
in Lalankumar Singh v. State of Maharashtra (AIR 2022 SC 5151) that
the order of issuance of process is not an empty formality. The Magistrate is
required to apply his mind as to whether sufficient ground for proceeding exists
in the case or not. The formation of SLich an opinion is required to be stated in
the order itself. The order is liable to be set aside if no reasons are given
therein while coming to the conclusion that there is a prima facie case against
the accused. No doubt, that the order need not contain detailed reasons.
14. In the light of the above rulings and the relevant statutes afore
mentioned, I have anxiously considered the materials before me like the
complaint, Statements of complainant and his witnesses, report of inquiry,
. Documents etc. and the following grounds were seen emerged.
\. Victim was admitted immediately after the accident at Hospital and
significant collection of blood in the cranial cavity due to SAH and SDH
were ascertained. Evacuation could have been a life saving procedure.
But there was no effort to drain out the blood though victim was
./;;i~j:~';ff,~e~:[J)ined by Neuro surgeons (R6 and R5) at these two hospitals.
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!1'S~?~'~~~r admitting the patient, HIV test wa:t~~~~::,~:U9hthere
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was no plan to conduct neurosurgery or blood evacuation.
3. Even prior to the declaration of brain death, Doctors of transplantation
team visited patient and Liver function test was conducted.
4. R2, R5, R7, R8 being the members of the 'Board of Medical Experts'
have signed the Document No.16- certificate of brain stem death which
is not as per the prescribed Form No.8 of Rules, 1995.
5. R2 is a signatory in Document No.16 Certificate; but case sheet does
not show that he has visited the patient.
6. R7 has signed the Certificate as a Neurologist nominated by the
Hospital. But F.8 prescribes NeurologistjNeuro-surgeon nominated from
the panel of names approved by the Appropriate Authority.
7. R8 has signed in the Document No.16 Certificate as an independent
Registered Medical Practitioner nominated by Appropriate Authority. But
his registration is recorded as 13667 (Karnataka). He cannot be
considered as a 'Registered Medical Practitioner' under the Act, as his
registration is not as per the T-C Medical Practitioners Act, 1956.
8. R3 and R4 Gastroenterologists despite being members of the 'Board of
Medical Experts', have visited the patient and certified brain stem death
in the case sheet. They are not authorized to declare so.
9. Apnoea test is not seen conducted as specified in F.8 of the Rule, 1995
before declaring brain stem death.
10. There was no examination of the 'Board of Medical Experts' twice with
an interval of about six hours in between, as specified in F.8 of the
Rule, 1995 before declaring brain stem death.
11. S.4 of the Act does not authorize removal of human organ in a case
where Inquest is required to be held in relation to such body. The case
on hand is recorded as RTA in the Admission sheet itself.
12. R6 being the Medi~al Superintendent not seen ensured the statutory
provisions of the TOHO Act and Rule, 1995.
13. Liver is transplanted to a foreign National for which sanction of internal
..<;::;~;;~:;:~u..:.t.Qgr!zation committee is not seen obtained .
...</' :', t.~~~ r...~, ;):'~ . ~::,, ..~~b;ktS c J%~~~p.lasian Embassy Certificate (Doc.No.7), wife of the recipient is
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Judicial First Class Ma~te-V;II, Ernakulam
9
shown as the donor. But the Liver of victim was transplanted to him,
the reason there of is suspicious.
15. During the organ harvesting thoracic chamber was opened
(sternotomy) and Heart was seen mutilated.
15. On the grounds mentioned in the fore going paragraphs, I find that
there is a prima facie case and sufficient grounds for proceeding in respect of
offences ujs. 18, 20 and 21 of the Transplantation of Human Organs Act, 1994
(pre-amended), against all accused (Respondents-R1 to R9). The complainant
has complied with all the requirements u/s. 22(1)(b) of the Act. Hence, case is
taken on file as CC 521/2023. Accordingly, it is directed that summons shall
be issued to all accused .
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By Order
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