Guwahati: The Gauhati High Court directed the Assam government to pay a monthly stipend to the father of a minor girl suffering from acute disseminated encephalomyelitis (ADEM), a permanent disability, after she was administered a vaccine.
The stipend, the Court stated, has to be paid at the rate applicable to unskilled workers under the Minimum Wages Act, 1948, to take care of her daily needs and a monthly sum of Rs 3700 for engaging a caretaker till her life.
A single-bench judge of the High Court also directed the Assam government to disburse an amount of Rs 1,00,000 to the bank account of the father of the girl within a period of 30 days from the date of the judgment and thereupon ensure that within a period of six months, the monthly stipend along with the cost of the caretaker is paid.
“It is well established that the right to life also includes a right to live with human dignity. This Court also takes note of that the petitioner is a vegetable vendor and earns a meagre income and taking into account the requirements as per the report for the child of the petitioner to live a life with dignity, it would not be possible to do so without the aid of the state government,” a single judge bench of the court observed.
“This court further directs the commissioner and secretary to the Government of Assam, health and family welfare department as well as the mission director, National Health Mission to take effective steps so that the child of the petitioner is evaluated at least twice a year by a paediatrician till she attains the age of 18 and by a physician after she attains the age of 18,” the court stated.
“Further to that, the said authority shall also ensure that a neurologist of the Gauhati Medical College Hospital (GMCH) provides the necessary consultations from time to time as per the need of the child of the petitioner. The said authorities shall also ensure that medical treatment as well as the rehabilitation training which is presently being offered to the petitioner’s daughter is continued so that the petitioner’s daughter is in a position to live a reasonably dignified life,” it said.
Notably, the child was born to the petitioner at Sipajhar Public Health Centre on November 28, 2010. When the child was one and half years old, she was administered a vaccine (DPT-Booster, Measles 2nd OPU-Booster, Vita A 2nd dose) at an anganwadi centre in a village under Khash Sonapur Sub-Divisional Health Centre.
Upon administration of the vaccine, the health condition of the daughter of the petitioner started to deteriorate and after a while she fainted. Thereafter, she started suffering from high fever and was not able to stand on her legs.
The child was later admitted to Gauhati Medical College Hospital (GMCH) and underwent treatment for almost three months. However, the petitioner submitted that his daughter was not able to walk and sit and only lay on the bed till the date of filing the writ petition.
The petitioner sought adequate compensation from the respondent authorities claiming that the child had endured the sufferings owing to negligence on the part of the respondent authorities.
On the other hand, the respondent health department specifically denied any negligence on their part by stating that when the incident was reported, the best available treatment was given to the child of the petitioner and as such, it stated that it could not be termed as a case of negligence.
Issues for the court to determine included whether the permanent disability of the child of the petitioner could have been prevented by the respondent health department; Whether there was medical negligence on the part of the respondent health department which led to the permanent disability of the child of the petitioner; What medical remedial steps are required to be taken for the child of the petitioner to live a life with dignity.
The Court, in its order dated April 11, 2023, had appointed a commission to look into the aspect of medical negligence.
The Commission opined that the petitioner’s daughter was given an appropriate vaccine for her age at a proper physical state and proper dose and the immediate post-vaccination symptoms were properly treated by the local physician to the best of his/her capacity and when the child’s symptoms increased, she was rightly referred for a specialist opinion first to Mangaldai Civil Hospital and then further to the Department of Paediatrics at GMCH.
The Court noted that as per the Commission’s report, there was no negligence on the part of the health department which led to the permanent disability of the daughter of the petitioner.
The Commission further opined that the said child could never lead an independent life in the future consequent to the multiple severe disabilities and then the child of the petitioner would require constant help of a caretaker.
It was further opined that the child would need continued evaluation and treatment/rehabilitation training (physiotherapy, occupational therapy and speech therapy) to lead a reasonably dignified life.
The Court observed that the Commission’s report categorically mentions that the disability of the petitioner’s daughter is 100 percent and that she would require medical assistance in the form of regular medical check-ups, rehabilitation programmes and orthotic device support.
Thus, the Court directed the respondent authorities to take appropriate steps for payment of the monthly stipend at the rate as applicable to unskilled workers to the petitioner’s bank account monthly till the petitioner’s daughter attains the age of 18 years and then to the bank account of the petitioner’s daughter or her guardian duly appointed under the provisions of law till she survives.
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It further directed that the said monthly stipend shall periodically be increased on the basis of subsequent notifications issued enhancing the minimum wages per month of the unskilled workers.
The respondents were also directed to provide orthotic device support as required so that the said child could achieve some degree of independent walking abilities and give support at the District Early Intervention Centre (DEIC) where physiotherapists and speech therapists would be provided free of cost.
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