The Union of India & others vs HON'BLE Ms. JUSTICE RITU BAHRI

Judgment

1. To be referred to the Reporters or not?

2. Whether the judgment should be reported in the Digest? Present : Mr. R.D. Bawa, Advocate for the appellant. Mr. Brijeshwar Singh, Advocate for respondent No.2. Mr. Mahesh Dhir, Advocate for respondent No.3. Mr. Munish Kapila, Advocate for respondent No.4. **** RITU BAHRI, J. This is Letters Patent Appeal under Clause 10 of the Letters Patent for setting aside the judgment dated 19.1.2010 passed by the learned Single Judge whereby the claim of the petitioner for reimbursement of the medical bills incurred for an operation for the implant of automatic inera-cardiac defibrillator (AICD), from the Fortis Hospital, Mohali has been disallowed. L.P.A. No. 423 of 2010 -2- The petitioner is a member of Central Government Health Scheme and is entitled to reimbursement of the expenses incurred by him for medical treatment. The reimbursement is admissible for taking treatment from the Central Government / the State Government hospitals and the hospitals, which are fully funded by the Central Government or State Government. Treatment from the private hospitals recognized by the Central / State Government under the Central Government Health Scheme/ the Central Civil Services (Medical Attendance) Rules, 1944 (hereinafter referred to as “the Rules, 1944”), medical treatment from unrecognized private hospitals is eligible for reimbursement in the case of emergency only. The petitioner was operated upon for implant of Automatic Intra Cerdiac Defibrilator (hereinafter referred to as AICD) on 2.4.2009. He submitted an application on 15.4.2009 to the Additional Director, Central Government Health Scheme, (Ministry of Health and Family Welfare), Government of India, Sector 34, Chandigarh, for reimbursement of the expenses incurred by him i.e. `4,50,379/- as operation charges and `34,357/- for the follow-up treatment, the total amount being `4,84,736/-. The claim of the petitioner for reimbursement was rejected by the department, on the ground, that the beneficiary does not suggest ICD insertion as an emergency, as ICD is usually a planned procedure. The treatment from an unrecognized hospital, and as per the opinion of the Dr. Rajiv Mahajan, Assistant Professor, Department of Cardiology, Post Graduate Institute of L.P.A. No. 423 of 2010 -3- Medical Education and Research, Chandigarh (hereinafter referred to as 'the PGIMER'), was not a case of emergency. The relevant portion of the opinion reads as under :- “The discharge summary of Sh. Naunihal Singh, CGHS, Chandigarh beneficiary does not suggest that ICD insertion was an emergency. No document VT ECGs are enclosed. Moreover, if the patient is having venticular tachycardia storm, ICD on an emergency basis is not indicated and patient would need drugs and possibly Radiogrequency ablation. ICD is usually a planned procedure and from the discharge summary, it appears planned and not an emergency.”

The learned Single Judge has dismissed the writ petition, on the ground, that as per the opinion of Dr. Rajiv Mahajan, the surgery was not a case of emergency. Since the petitioner did not fulfill the conditions for claiming the reimbursement from unrecognized hospital, as per the Central Government Health Scheme / the Central Civil Services (Medical Attendance) Rules, 1994, he is not entitled to any reimbursement. On October 12, 2010 the Hon'ble Division Bench after hearing the learned counsel for both the sides, impleaded Fortis Hospital, Sector 62, Phase VIII, Mohali as respondent No.4. Notice was issued to the newly added respondent by the Court. A short affidavit dated 12.10.2010 has been filed by Dr. S.C. Anand, Addl. Director, Central Government Health Scheme, Sector 34, L.P.A. No. 423 of 2010 Chandigarh. -4- Mr. R.D. Bawa, learned counsel for the appellant has vehemently argued that the petitioner was admitted in the Fortis Hospital on 1.4.2009, in an emergent condition. The Doctors advised immediate operation leading to the admission of the petitioner / appellant followed by an operation of an implant of AICD on 2.4.2009. This was a case of emergency and he is entitled to be reimbursed treating it a case of surgery in emergency from an unrecognized private hospital. Mr. Bawa has argued that his claim has been rejected by the learned Single Judge, on a technical ground, that the opinion given by Dr. Rajiv Mahajan, Assistant Professor, Department of Cardiology, Post Graduate Institute of Medical Education and Research, Chandigarh, that “the surgery appears to be planned and not an emergency.” Mr. Brijeshwar Singh, learned counsel appearing on behalf of respondent No.2 has supported the judgment of the learned Single Judge, on the ground, that as per the CGHS scheme treatment taken from private unrecognized hospital is not permissible unless it is a case of emergency or has been recognized by the Incharge, Medical Officer, CGHS. Such claims can be entertained subject to certain conditions, as enumerated in the relevant rules and regulations issued from time to time. The petitioner's case was neither recommended by the incharge, Medical Officer, CGHS, nor it was a surgery of emergency in nature. In paragraph 3 of the affidavit filed by Dr. S.C. Anand, L.P.A. No. 423 of 2010 -5- reference has been made to office Memorandum of the Govt. of India, Ministry of Health Family Welfare, New Delhi, OM No. S.12020/4/97-CGHS(P) dated 7.4.1999, the relevant portion of the same is reproduced below :- “6. In case of emergency in respect of pensioners / Serving employees. Since it is not always possible to obtain prior permission in emergency, treatment taken by CGHS beneficiaries in emergency will be considered on merits even if the treatment is taken from a non-recognized private hospital. For granting ex post facto approval in emergency cases, both for serving pensioner beneficiaries, the power is delegated to the Head of the concerned CGHS covered city.” As per the standing instructions issued by the Directorate General of Health Service, New Delhi, vide its letter No. D-12017/20/2005-CGHS Desk 1 dated 26.5.2006, the cases like the present one where the treatment was taken in private unrecognized hospital, the opinion of Govt. Specialist is required to be obtained locally to ascertain whether the said treatment was actually taken in emergency conditions or otherwise. In this situation, the opinion of Dr. Rajiv Mahajan, Assistant Professor, Department of Cardiology, Post Graduate Institute of Medical Education and Research, Chandigarh has to be given due weightage and it can not be ignored. The petitioner's claim for reimbursement after the opinion given by Dr. Rajiv L.P.A. No. 423 of 2010 -6- Mahajan, Assistant Professor, Department of Cardiology, Post Graduate Institute of Medical Education and Research, Chandigarh, is not justified. Mr. Munish Kapila, learned counsel appearing on behalf of respondent No.4 (hospital) has produced the relevant record regarding the surgery of the petitioner. The petitioner was admitted in Fortis Hospital on 13.3.2009 with c/o palpitations and severe erosive Esophagitis. He went through detailed check up in the Fortis Hospital, under the care of Consultant Dr. R.K. Jaswal. After detailed check up he was discharged on 14.3.2009. At that stage no surgery was recommended by the Fortis Hospital on 14.3.2009. However, the petitioner rushed back and has to be admitted again on 1.4.2009 with recurrent episodes of palpitations. He was kept under observation. As per advice of the doctors on 2.4.2009, the surgery was conducted and implant of AICD was done. The petitioner was discharged on 5.4.2009, after the implantation of pacemaker. Heard learned counsel for the parties. After going through the entire record and pleadings of the case, we are of the considered opinion that the petitioner's claim for reimbursement has been rejected on a technical ground that there was no emergency in getting the surgery done from a private unrecognized hospital. After going through the record submitted by the Fortis Hospital, it is clear that the petitioner had visited the Fortis Hospital on complaining of palpitations, but he was discharged on 14.3.2009 without recommending any surgery of implant of AICD. L.P.A. No. 423 of 2010 -7- On 1.4.2009, the petitioner suffered recurrent ventricular tachycardia; post AICD (Automatic Intracardiac Defibrillator) and was admitted in Fortis Hospital. After thorough examination the surgery was recommended in emergency. On 2.4.2009, the implant of AICD was done by the Fortis Hospital. The petitioner is 66 years of age and there was an emergent situation, in which he was admitted on 1.4.2009. He was required to undergo surgery of AICD implant. This was definitely a surgery in emergent situation. The petitioner could not have waited to undergo any such procedure or he could have taken any other decision in the given situation. The right to life is a fundamental right under Article 21 of the Constitution. If State denies its citizens such a right then such denial cannot be sustained as constitutional. These views have been expressed by Hon'ble the Supreme Court in various judgments including the case of State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117. The following observations in para 26 & 27 are :- “ 26. When we speak about a right, it corelates to a duty upon another, individual, employer, government or authority. In other words, the right of one is an obligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizen as its primary duty. No doubt Government is rendering this obligation by opening government hospitals and health centers, but in order to make it meaningful, it has to be within the reach of its people, as L.P.A. No. 423 of 2010 -8- far as possible, to reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospital. Its upkeep, maintenance and cleanliness has to be beyond aspersion. To employ best of talents and tone up its administration to give effective contribution. Also bring in awareness in welfare of hospital staff for their dedicated service, give them periodical, medico-ethical and service oriented training, not only at the entry point but also during the whole tenure of their service. Since it is one of the most sacrosanct and a valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority including by way allocation of sufficient funds. This in turn will not only secure the right of its citizen to the best of their satisfaction but in turn will benefit the State in achieving its social, political and economical goal. For every return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right finances are an inherent requirement. Harnessing such resources needs top priority.

27. Coming back to test the claim of respondents, the State can neither urge nor say that it has no obligation to provide medical facility. If that were so it would be ex facie violative of Article 21. Under the new policy, medical facility continues to be given L.P.A. No. 423 of 2010 -9- and now an employee is given free choice to get treatment in any private hospital in India but the amount of payment towards reimbursement is regulated. Without fixing any specific rate, the new policy refers to the obligation of paying at the rate fixed by the Director. The words are: " .... to the level of expenditure as per the rate fixed by the Director, Health Family Welfare, Punjab for a similar treatment package or actual expenditure whichever is less." Once the State is under obligation to look after the most fundamental of rights given to its citizens namely “Right to Life' then could it fall back upon subterfuges or take shelter under technicalities to defeat right. The answer has to be in the negative. Likewise in the case of State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83 their Lordships of the Supreme Court have observed that even room-rent has to be reimbursed. In para 4 of the judgment the following illuminating observation would be profitable to be quoted in verbatim. “4. ..................... It is now well settled law that right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities. If the government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred L.P.A. No. 423 of 2010 -10- by the government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee. The High Court was, therefore, right in giving direction to reimburse the expenses incurred towards room rent by the respondent during his stay in the hospital as an inpatient.” In the light of the aforesaid law if the facts of the present case are examined then it becomes evident that the respondents could not have rejected the claim of the petitioner for medical reimbursement of his expenses incurred by him on his heart ailment. The learned Single Judge was not right in rejecting the claim made by the petitioner. We are further of the view that the adverse remarks against Fortis Hospital were not warranted because it was not even a party before the Learned Single Judge. Accordingly we expunge those remarks as well. As a sequel to above discussion the judgment of the learned Single Judge is set aside. A direction is given to respondent No.2 to treat the petitioner's claim for reimbursement from an unrecognized hospital as the case of emergency and reimburse the medical bills submitted by him as per the instructions within a period of two months from the date of receipt of certified copy of this order. No order as to costs. (M.M. KUMAR) (RITU BAHRI) JUDGE JUDGE

9.12.2010 'sp'