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HIV – medical negligence – discharge of IAF official from service – landmark eye opener Judgment dated 26.9.23 of the Supreme Court of India

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The appellant was a radar operative / technician in Indian Air Force.  He was enrolled in IAF from 21.5.1996 in a permanent position and held a combatant rank.

While in service and under medical treatment in 2014 it was found that the appellant was suffering from HIV.   However, the Medical Board found that the infection of HIV was “non-attributable to service”.  He was  provided only medical case sheet of blood transfusion given on 10.7.2002 which did not disclose that ELISA was conducted before blood transfusion.

However, inspite of requests, the appellant was not given certified copies of his medical records.  He was discharged from service on 31.5.2016.

The appellant, therefore, filed complaint for Rs.95.3 crores, litigation expenses of Rs.10,000 per hearing and suitable pecuniary punishment to the delinquent officers.

The National Commission dismissed the complaint and held that no expert opinion was adduced or provide to establish medical negligence during blood transfusion.

The Supreme Court appointed two Advocates as amici curiae to appear on behalf of the appellant and assist the Court.   Moreover, by the order dated 25.4.2022, the respondents were directed to submit entire record of blood transfusion on 10.7.2022.

The respondents informed the Supreme Court that they were unable to detect the appellant’s medical records as they were destroyed.

HELD, on consideration of the facts appearing from the record in paras 59 and the contents of the letter dated 4.5.2018 of DG of Medical Service to HQ Western Command (Medical) to trace the documents and also investigate into the matter to pin point the lapses or negligence. CoI was constituted but the appellant was excluded from the same.  A review of the evidence and materials on record revealed that the appellant was transfused with one unit of blood on 10.7.2002 on the advice of Lt.Col. Devika Bhati and there is no indication in her deposition that the appellant was not informed of potential risk.  The transfusion was under medical advice.

Judgment dated 26.9.2023 in CPL Ashish Kumar Chauhan (Retd) Vs. Commanding Officer and others in Civil Appeal No.7175 of 2021

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