'Insensitivity Of Union Health Ministry' : Bombay High Court Shreds Centre's Affidavit Defending 'Faulty PM CARES Ventilators'

Justices Ravindra Ghuge and BU Debadwar said the Under Secretary G.K. Pillai (Ministry of Health and Family Welfare), who filed the affidavit, should have avoided a "blame game" and shown sensitivity towards "patients."

On the last hearing date, the bench had observed that the situation of "dysfunctional ventilators supplied through the PM Cares Fund to be quite serious" and had sought remedial action from the Centre.

Today, the Central Government submitted that the 150 ventilators were supplied through 'Make-in-India and not through the PM Cares Fund.

"We would have appreciated, had that affiant(author of the affidavit) avoided entering into a blame game and would have shown sensitivity towards the patients, it being the paramount object of a welfare state to take care of the health of its citizens."

The bench hearing the Covid-19 management PIL further asked the MOHFW to respect the reports from medical experts, which claimed the ventilators were defective, and concentrate on rectifying the machines.

"We will also appreciate if the MOHFW refrains from questioning the reports of medical experts and respect such reports in the larger interest of society, rectifying the said machines."

"We are unable to accept the contentions of the ASGI that the ventilators are in perfect operating conditions, and it is the hospitals who do not have trained personnel to operate them properly. The affidavit before us has a semblance of virtually defending the manufacturer and declaring the ventilators are in immaculate condition."

The Central Government should have made an effort to get the machines working, the bench added.

"We find such statements to be demonstrating insensitivity on the part of the ministry of MOHFW. Instead of expressing wholehearted support to ensure that such [machines] are put to optimum utilization in the interest of the lives of the patients, it appears that the affiant found it advantageous to contend that there is no merit in the report of the dean of the Government Medical College(GMCH)," the bench observed.

The bench then asked the Assistant Solicitor General of India, Ajay Talhar, to take further instructions on a fresh report submitted by the GMCH. The report lists reasons to conclude that the ventilators are unsafe for patient's use, and it was decided not to test any of these machines on patients henceforth.

ASGI said the UOI would take remedial steps and ensure the ventilators would operate adequately and all defects, if any, would be removed. The bench then adjourned the matter for directions on June 2, 2021.

During the previous hearing, the bench had taken serious note of at least 113 defective ventilators of the 150 ventilators provided to the Marathwada region after learning that a "patient becoming hypoxic" was cited as one reason for GMCH rejecting the ventilators.

Ventilators not from PM Cares

During the hearing on Friday, the Centre submitted in their affidavit that the 150 ventilators were never supplied through the PM Cares Fund and were ordered along with 58k other ventilators by the Government's Production, Procurement, Import, and Import Distribution Department by encouraging local manufacturers.

The bench observed that this was not what the Centre had announced earlier. "As such, there is a complete denial that these ventilators were supplied through PMCares as was earlier announced."

Supporting the Manufacturer Jyoti CNC

Soon after the court perused the affidavit at the beginning of the hearing, they expressed shock at the statement asking the court to accept the manufacturer's explanation and dispose of the PIL.

In the affidavit, the Central Government has claimed, based on the manufacturer's statement, "there is nothing on record...to demonstrate that the ventilators supplied by the company are not working satisfactorily."

"Are you going to justify and support the explanation of the company? Or you are going to be alive to the fact that these ventilators put the lives of patients at risk? What are you more concerned with?" Justice Ghuge asked.

Talhar submitted the Government was more concerned with the lives of patients.

"The tenor of the affidavit doesn't show you are worried about the lives of the patients. His (affiant's) intention is more of supporting the explanation of the company that these ventilators are working perfectly in Gujarat."

Talhar also said that he is withdrawing the statement seeking disposal of the PIL as the affidavit was filed in haste. Justice Ghuge retorted, "don't give us lame excuses."

Talhar argued that all the ventilators were adequately tested and all remedial steps were taken. Moreover, there was an inspection on three dates.

But the court seemed unconvinced when Talhar was unable to produce the inspection reports and sought time to do so. "You thought you would tell us numbers, and we will say, well done? What you are saying is very superficial. Your statements are without conviction."

The bench noted that if Jyoti CNC did an inspection, there were no details on the people who inspected or to whom the training was given. "This is like a written statement filed by a defendant in a civil case, filled with denials," the court said.

Medical officers not Trained to Use the Ventilators

Talhar submitted, "This is happening because of lack of training. They (GMCH) are doing it without knowledge."

"You are telling us people operating the ventilators are untrained; therefore, ventilators are becoming dysfunctional? What a fantastic argument. You handed over ventilators to those persons who were not competent to touch it?"

"No, no, I am saying we need to see if the person is trained or not," Talhar added.

The bench said that it was the manufacturer's duty to impart training if that was the case. "We would have been satisfied if the under secretary would have taken responsibility. It looks like ASGI is holding the brief for the manufacturer," the bench remarked.

State submits Non- functional Ventilator report singed by 8 doctors -

Despite major repairs, ventilators indicated failure

The Chief Public Prosecutor for the State submitted that the Centre should replace the non-functional ventilators. The bench noted that the report signed by 8 doctors are GMCH indicates that the ventilators developed errors from day one. The company's Engineers installed 25 ventilators in the medical department, and 25 ventilators were distributed to district and private hospitals.

"All such 25 ventilators were returned by the ICU department of the concerned hospitals, as they were not functioning properly and patients started complaining about breathlessness and associated symptoms within hours of the ventilator being switched on. Pvt hospitals also returned the venti stating they were not working properly." the bench noted in the order from the State's report.

On 6/5/2021, engineers of the manufacturer were informed, and a team of 3 technicians visited the GMCH on 12/5/2021. On 14/5/2021 the company's service engineer joined the team and calibrated input oxygen regulators of two ventilators. They were working well overnight and by the next afternoon patients complained of poor oxygen inflow and showed signs of restlessness.," the bench noted in its order.

"Details of ventilators are shocking. Patients even from super speciality blocks and trauma ICU's complained. Committee noted, several other ventilators manufactured by different companies were being used for more than six months to a year, and it was only those ventilators manufactured by Jyoti which were not functioning," the court said in its order.

The matter was adjourned to June 2.