Kerala High Court Stays Summons Issued To Lakeshore Hospital, Doctors Over Alleged Illegal Liver Transplant

The Kerala High Court has stayed the order of the Judicial First Class Magistrate Court issuing summons to Lakeshore Hospital and 8 of its doctors accused of transplanting the liver and kidneys of an 18-year-old, in violation of the provisions of the Transplantation of Human Organs Act (THOA), 1994.

Justice P.V. Kunhikrishnan passed the Order, staying the summons for a period of 6 months. 

The victim had sustained a head injury following his accident on November 29, 2009. He was initially admitted to Mar Baselious Hospital, Kothamangalam. Thereafter, he was shifted to Lakeshore Hospital, Ernakulam, on November 30, 2009, and declared brain dead on December 1, 2009. His kidneys and liver were alleged to have been harvested in violation of the law for transplantation to a Malaysian national, according to a private complaint before the court.

The complainant, S. Ganapathy, who is himself a doctor by profession, averred that he came to know about the case through a news report in January 2019, and upon enquiry, found that the organ transplantation had been conducted in gross violation of the existing laws, with the consent of the parents of the victim having been obtained under misrepresentation.

The complainant alleged that the respondents doctors had acted in criminal conspiracy and denied proper treatment to the victim and thereafter transplanted his organs to a foreign national in violation of the existing laws. He alleged that the hospital had amassed huge amounts of money through the same.

The complainant further alleged that the brain death was certified by a team of doctors who had not been authorized for this purpose. It was further averred that the doctors had not conducted Apnoea Test to confirm the brain death, and that importantly, both the hospitals where the victim had been admitted, had failed to evacuate blood from the cranial cavity.

The Magistrate Court found a prima facie case and sufficient grounds for proceeding in respect of offences under Sections 18 (Punishment for removal of human organ without authority), 20 (Punishment for contravention of any other provision of the Act), and 21 (Offences by companies) of THOA.

It had accordingly issued summons to the Hospital and some of its doctors in May 2023. 

The petitioners thus filed the present plea before the High Court contending that the transplantation had been carried out after fulfilling the requisite procedures, and with due authority. The petitioners urged that the conduct of a Magisterial inquiry in the matter parallel to the police investigation would be violative of the provisions of the Cr.P.C. and amount to harassment of the petitioners. 

The petitioners submitted that the police had not found even an iota of evidence as regards the culpability of the former in the matter, even after 12 years after the incident and 9 years after the second investigation had been initiated. 

"The prolonged investigation into the matter amounts to violation of the petitioners' fundamental rights guaranteed under Articles 19(1)(g) and 21 of the Constitution," the plea states. 

The petitioners added that their acts would be protected under Section 23 of the Transplantation of Human Organs and Tissues Act, having been done in good faith. 

The plea thus seeks quashing of the proceedings in the case before the Magistrate Court. 

The present plea has been moved through Senior Advocate P. Vijayabhanu and Advocate Thomas J. Anakkallunkal. 

Case Title: Lakeshore Hospital and Research Centre Pvt. Ltd. & Ors. v. State of Kerala & Anr. 

Case Number: Crl. M.C. 8070/ 2023

Click Here To Read/Download The Order