In a judgement that did not take a number of facts into account, the court allowed Retired Judge Arumughaswamy to go on a fishing expedition
The Madras High Court dismissed two petitions by Apollo Hospitals on Thursday, giving the Arumughaswamy Commission probing late Chief Minister J Jayalalithaa’s death, a free hand to conduct a roving inquiry.
The court, pointing to the terms of reference of the Commission as stipulated by the state government, found that the phrase “subsequent treatment provided till her unfortunate demise on 05th December 2016” meant that the Commission had all powers to conduct an inquiry into whether the treatment given to the late Chief Minister was appropriate and accurate.
“Therefore, we are of the view that the second respondent is empowered and is entitled to go into the appropriateness, efficacy, adequacy or inadequacy of the treatment given by the petitioner hospital to the Chief Minister of the State, as mandated by the government under the terms of reference,” said the order by Justice Subbiah.
The verdict by a Bench comprising Justices R Subbiah and Krishnan Ramasamy in effect allowed the Commission to conduct a full medical inquiry into the treatment provided to Jayalalithaa – and this inquiry will be done using the services of a cardiologist, a cardio thoracic surgeon, a bio-chemist and a radiologist.
With the blessings of the Madras High Court, this team will continue to evaluate whether the team of AIIMS doctors, international doctors as well as Padma Bhushan awardee specialists who treated Jayalalithaa did their job correctly or not.
“The Government, as a client, intended to seek an opinion by appointing a One Man Commission of Inquiry. It is for the State Government to decide as to what exactly their requirement is and depending upon their requirement, they can appoint either a One Man Commission of Inquiry or a commission consisting of experts in the field. When such being the case, we cannot interfere with the appointment of the Commission of Inquiry and direct the Government to include professionals or experts on Board to assist the One Man Commission of Inquiry,” said the order.
The constitution of a competent and expert Medical Board was a key plea by Apollo Hospitals to the Madras High Court, in the event of the Commission turning into an inquiry into alleged medical negligence.
No Word On “Harassment” Of Doctors
The Bench also dismissed the arguments of Apollo senior counsel PS Raman and Aryama Sundaram that retired judge Arumughaswamy had “harassed” the doctors, questioned them with “bias” and “badgering” them. Further the affidavits of 32 doctors who objected to the treatment meted out to them by the Commission, wrong recording of facts, alleged harassment by the retired judge – none of these appear to have been taken into account by the Bench.
“…the witnesses were treated well by the Commission and it is not as if they were harassed vindictively. At the best, it cannot be said that the Commission had wantonly to harass the witnesses had put some question much to the inconvenience of the witness,” read the order.
Apollo Stalling Proceedings?
The Bench also agreed with Advocate General Vijay Narayan who said that the hospital had participated in the entire inquiry proceedings since November 2017 and was asking for it to be stalled when “90% of the inquiry is complete”.
“Almost 55 Doctors of the petitioner institution and other technical and para-medical staff have deposed before the second respondent commission over a period of time. Therefore, at this stage, it is too late for the petitioner institution to contend that the Commission is not empowered to go into the medical aspects or the adequacy or inadequacy of treatment given to the demised chief minister,” averred the Advocate General.
“During the examination of these witnesses, the petitioner hospital did not raise its little finger pointing out the non-inclusion or non-appointment of medical professional as part of the Commission,” agreed the Bench.
But the Bench failed to recognise that the Commission had, in fact, from November 2017 first recorded the depositions of a number of Jayalalithaa’s staff, her cook, her driver and others before beginning to question the doctors who treated her.
According to Apollo counsel, doctors were questioned by the Commission only from late May 2018 onwards and the counsel for Apollo at the Commission, Maimoona Badsha had repeatedly objected to the manner of questioning of doctors, of facts being misrecorded and of corrections not being made to set the records and medical jargon straight.
On 28 December 2018, Badsha had filed an application before the Commission asking for a Medical Board to be constituted. Almost a month later, on 22 January 2019, the Commission rejected this demand.
In early February, the hospital then moved the Madras High Court for relief.
Mystery Medical Board Helping The Commission
After months of demanding a Medical Board to question doctors, Apollo Hospitals were in for a surprise as the Arumughaswamy Commission and the state government revealed that they had their own set of doctors assisting them with the inquiry.
In October 2018, five months after the state government granted permission to the Arumughaswamy Commission to avail of services from expert medical professionals, the retired judge put a team together.
Dr R Nandakumar, Associate Professor of Cardio Thoracic Surgery and M Maragatham, Bio-Chemist, Institute of Bio Chemistry of Madras Medical College were deputed to assist the Commission from 10 October 2018. On 23 October 2018, “Dr Nandakumar was relieved and Dr M Nandakumaran, Institute of Cardiology, Professor Dr K Malathy, Institute of Radiology and Professor Dr A Sivaraman, Institute of Cardiothoracic Surgery were deputed by the Dean, Rajiv Gandhi Government General Hospital, Chennai.”
Apollo had objected to these appointments, made “behind their back” and argued that it went against the principles of natural justice. “Moreover, the second respondent had appointed some Doctors to scrutinise the voluminous medical records produced by the petitioner hospital without notice to the petitioner and the petitioner is groping in the dark as to who those Doctors are and whether they are medically competent to peruse the documents,” argued Apollo counsel.
VK Sasikala’s lawyer Raja Senthur Pandian too stated that he and his client were unaware of the team of medical experts put together by the Commission. “… (Sasikala) was unaware and she was not put on notice regarding the appointment of five government Doctors by the Commission for aiding it,” stated Pandian.
A Slight Breather For Apollo
The court though set the record straight on the definition and scope of a Commission of Inquiry, giving slight relief to Apollo Hospitals.
“We also wish to observe that the Commission of Inquiry is a fact finding body and during the course of such inquiry, the Commission need not attribute “collusion”, “conspiracy” or “fraud” etc. Therefore, we find some force in the submission of the learned Senior counsel for the petitioner that the second respondent exceeded its scope and ambit in conducting inquiry proceedings by attributing negligence or collusion against the petitioner hospital even before the submission of final report to the Government by way of application or counter statement to the application filed by the petitioner, which in our opinion, the Commission could have avoided,” said the Bench.
As per settled law, a Commission of Inquiry can only make recommendations to the state government and it cannot determine guilt or innocence, since a Commission is not a lis or a lawsuit against two adversarial parties.
It is upto the government, upon submission of final report, to act upon its recommendations or not. This point was reiterated by the court.
But as The Lede had earlier reported exhaustively on the curious nature of proceedings before the Arumughaswamy Commission, the retired judge appears to be taking an adversarial position against both the hospital as well as VK Sasikala.
What is for sure is that this case will now move to the Supreme Court with an unhappy Apollo Hospitals looking for further relief.
You may read our earlier series on the Arumughaswamy Commission here: