The Judicial Magistrate Court at Ernakulam, Kerala recently took cognizance against the Chairman and Managing Director of the Lakeshore Hospital at Ernakulam and its 8 Doctors and a Neuro Surgeon at Baselios Hospital for offences under the Transplantation of Human Organs Act, 1994 for allegedly denying proper treatment to an accident victim and making the relatives believe that he is brain dead for the purpose of transplanting the organs to a foreigner.

Judge Eldos Mathew in his order issuing summons to the accused noted that "On the grounds mentioned in the foregoing paragraphs, I find that there is a prima facie case and sufficient grounds for proceeding in respect of offences u/s. 18, 20 and 21 of the Transplantation of Human Organs Act, 1994 (pre-amended), against all accused (Respondents-R1 to R9)."

Relying on the Judgement in Lalankumar Singh v. State of Maharashtra (AIR 2022 SC 5151), the judge noted that the Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. While taking cognizance in the present matter, the Judge said "I have anxiously considered the materials before me like the complaint, Statements of complainant and his witnesses, report of inquiry, Documents etc."

In the complaint filed by Dr. S. Ganapathy through Advocate Santhan V Nair, it was stated that one Abin V.J met with a bike accident and sustained a head injury. He was admitted to Mar Baselious Hospital and then later shifted to Lakeshore Hospital where he was declared brain dead at 7.00 pm on December 1, 2009. His Kidneys and Liver were harvested in contravention of the Transplantation of Human Organs Act, 1994 (Pre-amended).

It was submitted that the Hospital with the intent of transplanting organs to a foreign national, in violation of the prescribed laws and amassing huge money for the hospital, made the relatives of the victim believe that he is brain dead and induced them to donate his vital organs. It was further added by the complainant who is a doctor by profession that the brain death has been certified by a team of doctors who were not even authorised for this purpose.

The Court further noted the statement of the Doctor who conducted the autopsy on the body of the victim that there was a significant collection of blood in the brain which had not been drained surgically despite being examined by Neurosurgeons. He raised a strong suspicion over the non-evacuation of the blood though he was admitted to the hospital soon after the accident. "Abin had no significant brain injury in the form of brain contusion or brain laceration. According to him, evacuation of the blood could have been life-saving for Abin," noted the Court in the order.

Among the grounds that emerged before the Judicial Magistrate for issuing summons against all the accused are: a) "Even prior to the declaration of brain death, Doctors of transplantation team visited patient and Liver function test was conducted," b) "R3 and R4 Gastroenterologists despite being members of the 'Board of Medical Experts', have visited the patient and certified brain stem death in the case sheet. They are not authorized to declare so," c) "In the Malasian Embassy Certificate (Doc. No. 7), wife of the recipient is shown as the donor. But the Liver of victim was transplanted to him, the reason there of is suspicious." d) "During the organ harvesting thoracic chamber was opened (sternotomy) and Heart was seen mutilated."

Accordingly, the Court directed that summons be issued to all accused.

Cause Title: Dr. S. Ganapathy v. Lakeshore Hospital and Research Centre Pvt. Ltd. & Ors. [CrI.M.P No. 1004/2021]

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Transplantation of Human Organs and Tissues Actorgan transplant

Ramey Krishan Rana