This article has been written by Aryan Pujari a first year student of Amity Law School, Raipur, Chattisgarh

“If you believe in the right to life, then you must believe in the right to have the means to defend that life.”-Charlie Reese

Welfare structure and “Right to emergency medical care” –

India, since time immemorial by its profound constitutionalism and prevalent rights vested in every citizen had earned the fame of a socialist state. Indian constitution envisages rights, which is both a moral as well as legal guardian of individual minimum basic demands to survive and suppress chaos with others. Being dressed up with all these qualities providing a “right to emergency health care” becomes a tenant of the state’s ideology. Being world’s most populous democracy it becomes much more important as every minute in India and individual is coming up with a new brutal disease and end up dying filling up legal formalities for treatment.

A vehicular accident  In every 3 minutes and a death in every 10 minutes is on record. During 1998, nearly, 80,000 lives were lost and 330,000 people were injured. Of these, 78% were persons in the age group of 20-44 years.[1]

  • REMC in special reference to Parmanand Katara v. Union of India

The SC of India as long back as 1989 observed in Parmanand Katara v. Union of India[2] that when accidents occur and the victims are taken to hospitals or to a medical practitioner, they are not taken care of for giving emergency medical treatment on the ground that the case is a medico-legal case and the injured person should go to a Government Hospital. The SC emphasized the need for making it obligatory for hospitals and medical practitioners to provide emergency medical care. Based on the petition, the Supreme Court held that:

  1. Preservation of human life is of paramount importance.
  2. Every doctor, at a government hospital or otherwise, has the professional obligation to extend his/her services to protect life.
  3. There should be no doubt that the effort to save the person should receive top priority. This applies not only to the legal profession, but also to the police and other citizen’s part of the matter.[3]
  • Authorities mandating Right to emergency medical care-

Even after the judgment of Supreme Court in above cited case, there are fewer medical institution taking of such issues so as to avoid any medico-legal instances. Judiciary as well as legislature both are proactive  to address these fallacies. These are few authorities dealing with EMC-

  1. Article 21- With in Right to Life and Personal liberty there may not be any express “Right to emergency medical care” enshrined with in , but any delay on the part of hospital in providing medical service in furtherance of which the patient loses his life results in violation of “Right to Life”[4]
  2. The emergency vehicle services , CATS (Centralized Accident and Trauma Services). These are the National Network of Emergency Services at Ahmedabad, Delhi, Pune, Hyderabad, Chennai, Raipur, Ranchi, and Kolkata; Emergency Management and Research Institute (EMRI) at Haryana, Chandigarh, Uttarakhand, Rajasthan, Gujarat, Madhya Pradesh, Andhra Pradesh, Goa, Karnataka, Tamil Nadu, Meghalaya, and Assam. The “108” telephone number for EMRI in Uttarakhand has been successful in providing EMS in hilly area.[5]
  3. “Emergency Department Categorization Standards” proposed by the Society of Academic Emergency Medicine (SAEM)” ensures that most of the central universities and government hospitals have the emergency zones or “CASUALTIES”
  4. In the year of 1999 Society For Emergency Medicine in India emerged which brought together all the national emergency physicians with a motive to develop emergency medicine in India also it established a good connection with American College Of Emergency Physician (ACEP).
  5. Emergency Accident Relief Centers[6] have been established on all the important National and State Highways, to give first aid to the accident victims within the “golden hour” and to arrange for further treatment through the nearby referral hospitals as per victim’s choice.
  6.  EMTALA is a statute of United States(Emergency Medical Treatment and Labor act) which was enacted by introducing it in 1986 into the Consolidated Omnibus Budget Reconciliation Act, 1985 (COBRA) or the Patient Anti-Dumping Act. It imposed a mandatory duty on hospitals to give medical treatment to patients in emergency medical condition and women under labor, failing which the defaulter can be punished under the criminal law.
  • Cases in reference to REMC-
  1. Paschim Banga Khet Mazdoorsamity … vs State Of West Bengal & Anr –
  • Fact- The petitioner sustained multiple injuries falling off from a train. He got denial for admission into six successive state hospitals either with an excuse of not having required equipment or having no vacant bed.
  • Judgment-The Court declared that the right to life enshrined in the Indian Constitution (Article 21) imposes an obligation on the State to safeguard the right to life of every person and that preservation of human life is of paramount importance. This obligation on the State stands irrespective of constraints in financial resources.  The Court stated that denial of timely medical treatment necessary to preserve human life in government-owned hospitals is a violation of this right. The Court asked the Government of West Bengal to pay the petitioner compensation for the loss suffered. It also directed the Government to formulate a blue print for primary health care with particular reference to treatment of patients during an emergency.[7]
  1. Pravat Kumar Mukherjee vs Ruby General Hospital & Ors-[8]
    • Fact-The case involves unfortunate death of a young boy, Shri Sumanta Mukherjee, a student of second year B.Tech., Electrical Engineering, at Netaji Subhash Chandra Bose Engineering College, on 14.1.2001 who was injured in an accident at about 8.00 a.m. in which a bus of the Calcutta Tramway Corporation dashed with the motor cycle driven by the deceased. People brought to the Ruby General Hospital, Kolkata, which was close to the place of accident.
  • JudgmentIt is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence. Keeping the aforesaid principles in mind, it would be just and reasonable to award compensation of Rs.10 lakhs for mental pain and agony. This may serve the purpose of bringing about a qualitative change in the attitude of the hospitals of providing service to the human beings as human beings. Human touch is necessary; that is their code of conduct. In emergency or critical cases let them discharge their duty/social obligation of rendering service without waiting for fees or for consent.[9]
  • In the same case B.SHAH, J. PRESIDENT raised a question that can Doctors insist and wait for money (fees) when death is knocking the doors of the patient? Obvious answer is recovery of fee can wait – but not the death nor the treatment for trying to save the life.
  • Suggestion-
  1. Most of the hospital deny the same because of the financial risk they take over. Every state may frame a separate fund to provide to these medical institutions so that these entities don’t face any financial crisis hence will not deny for admission of emergency cases.
  2. State governments may allocate doctors in privatized hospital to deal with only emergency cases and with a salary similar to any other government surgeon.

References:

[1] https://shodhganga.inflibnet.ac.in/bitstream/10603/130522/11/11_chapter%204.pdf

[2] 1989 AIR 2039, 1989 SCR (3) 997

[3]AVAILABLE AT < https://www.thebetterindia.com/104204/5-pil-cases-every-indian-citizen-grateful/>

[4] https://shodhganga.inflibnet.ac.in/bitstream/10603/130522/11/11_chapter%204.pdf

[5] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3047870/

[6] https://tnsta.gov.in/roadsafety_emergency.jsp

[7] Source – ESCR-NET

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