Organ Trade: ‘State has a responsibility to protect people from exploitation’, observes High Court
By Greeshma Neelakandan and Raghul Sudheesh
A determined septuagenarian’s fight against improper brain death certification by the private hospitals in Kerala has culminated in the State Government temporarily cancelling the licence awarded to Lourdes Hospital in Kochi for organ transplantation.
Dr. S. Ganapthy after being concerned about premature brain death certifications involving poor and young patients, had filed a writ petition (a copy of the petition has been accessed by The Kochi Post) before the High Court of Kerala against the organ trade carried out by the private hospitals in the State. Dr. Ganapathy, a Family Physician and a medical practitioner with 45 years of standing in the profession had appeared before the Court and argued the case on his own.
Dr. Ganapathy in his petition says, “I am not against organ transplant, but against organ trade. I am equally against killing young and poor brain injured persons to harvest and transplant their organs for commercial purposes. I am also against wrong and premature certification of brain stem death.”
Dr. Ganapathy, filed a public interest litigation in November 2016, after he found out that the hospital which donated heart to a patient in September 2015 did not properly comply with the existing norms for organ donation and declared the patient brain dead in haste without properly conducting clinical tests recommended by World Health Organisation and the Transplantation of Human Organs and Tissues Act, 1994. It was the first ever heart transplantation surgery to be conducted in a Government Hospital and was done at Kottayam Medical College.
The donor, K. T. Vinayakumar from Aluva, was declared brain dead by a team of doctors and his heart was transplanted in Pathanamthitta native Podimon in September last year. Podimon died less than a month after the surgery. This evoked suspicion, and Dr. Ganapathy did an intensive research on the background of the surgery. He discovered that even though the existing norms make it clear that the brain death certification should be performed by a team of four doctors at two stages with an interval of 6 hours, the hospital in the second stage of certification engaged only three doctors. “So legally, the patient was not brain dead, as the certification was not proper. So my question was how a person who was not brain dead could donate his organ. The hospital authorities were committing a murder,” says Dr. Ganapathy.
“Podimon died within days after he received the heart from Vinayakumar who was certified brain dead. “Not every patient is eligible for transplantation. You are a heart patient and you have several other severe health problems. In that case, you are not eligible for transplantation as the transplantation would only cause more damage. In Podimon’s case, his kidney as well as liver were not functioning properly. This was another severe malpractice from the part of the surgeons who conducted the transplantation,” Dr. Ganapathy added.
Though Kerala is number one in India in terms of the number of transplantation, it is at the rock bottom in terms of the survival rate of the patients.
Dr. Ganapathy says, “First heart transplantation in Kerala was done in Lissy Hospital. It was by a well known surgeon Jose Chacko Pariappuram. It was the first successful transplantation in the entire country. He has done almost 26 transplantation and only 2 patients lived more than one year. So this is the scenario. Private hospitals in Kerala have already discovered that the transplantation surgeries are one of the best ways to pool money. Hospitals make crores of rupees in a year through such surgeries.”
According to the writ petition filed by Dr. Ganapathy, “The private hospitals doing transplant surgery charge Rs. 10 to 15 lakhs for each kidney, Rs. 15 to 20 lakhs for pancreas, Rs. 15 to 20 lakhs for intestine, Rs. 20 to 30 lakhs for each of two slices of liver, Rs. 30 to 50 lakhs for heart. So private hospitals in Kerala make Rs. 1.5 to Rs. 2.0 crores from every brain dead patient. Going by Government records, 222 brain dead patients donated 606 organs during the period from 01-01-2013 to 31-07-2016. Out of this 456 organs, 75% of the total, were transplanted to patients in private hospitals. Out of 38 heart transplants, only 3 were done in government hospitals. 9 hearts were sold to private hospitals outside the State. Thus, private hospitals in the State were able to amass about Rs. 140 crores from these transplants. Hospitals where the patients were pronounced brain dead made Rs. 12 crores as procurement fee. Pharmaceutical companies were also benefitted to the tune of Rs. 30 crores by the sale of immuno suppressant drugs alone.”
For a patient to be declared brain dead, the globally recognised and WHO recommended tests, strictly include EEG (Electro Encephalo Gram) and Angiogram. “EEG is the perfect test to verify if the brain is functioning. Because, in a brain dead person, not even a single drop of blood is flowing through the brain. EEG works on the basis of the presence and absence of neurons which are the basic cell unit. The neurons carries electric charge and in a brain dead person, there would not be any active neuron. So, in a brain dead person, EEG record will be a straight line without deviations. This is the most reliable tests accepted world wide. But in Kerala, most of the hospitals do away with EEG and instead it conducts some neurology test. The problem is that when you conduct an EEG, it is a record. Anybody can verify an EEG record, while in a neurology test, there may not be such recorded evidence,” Dr. Ganapathy points out.
Since 2015, 38 heart transplant surgeries were conducted among which only three were conducted in Government hospitals. The survival rate of transplantation in Kerala is around 10 percent while the world average is around 84 percent. “The hospitals want to make money and so are the surgeons. So they do not comply with the standard practices. My writ petition seeking the Court’s intervention in organ donation practices in Kerala has drawn some favorable results. At the time I filed the petition, around eight months back, the brain death cases were between 70 and 80 per year and my petition could save at least 40 lives within this period,” he says. The whistle-blower medico is now batting for a unified law in the country in the matter.
After Dr. Ganapathy’s petition, the State Government informed the High Court that in respect of brain dead declarations, apnea test is to be done without exception and the whole procedure shall be video graphed and maintained. The Court observed, “This clearly answers the apprehension of the petitioner that without properly conducting apnea test, patients are being declared as brain dead.”
Regarding EEG test, the Court remarked, “Once videography is there, if any person finds any mistake,
then it would be open for him to take suitable action which the law would permit and evidence would be readily available for that purpose. It is not that EEG is totally an unreliable evidence, as the report itself suggests that those are tests which would be done prior to resorting to the EEG and as we understand that EEG is simply a common procedure where even the wards of the patient can easily see and make out. There may be occasions where it may draw up a different result, but that does not mean that a common test which even otherwise is done, should be avoided. We would thus, recommend to the Central Government and the State Government to consider the issuance of directives in that regard. It would only be an additional safeguard to be done and can easily be done by any
hospital which admits neurological cases.”
Before concluding the judgment in the case, the Court made certain serious observations. The Court remarked, “In the course of arguments, Dr. Ganapathy drew our attention to different cases which we need not refer. They related to patients who, according to him, ought not to have been a candidate for transplant, but hospitals performed transplant surgery which ended with fatal results. This is a matter of malpractice.”
The Division Bench of the Kerala High Court consisting of Chief Justice, Navaniti Prasad Singh and Justice Raja Vijayaraghavan concluded the judgment saying, “If any specific case is brought to the notice of the authorities concerned by anyone, including Dr. Ganapathy, then the appropriate authority would be required to take suitable action in the matter. Patients and their wards are desperate. They can easily be misled into believing things which may not be correct. The State have a responsibility to protect such people from such exploitation. The State would have to take such allegations seriously to avoid medical fraud and malpractice. It would have to have to take special or extra-ordinary care in these matters to ensure that hospitals stick to highest level of medical ethics and follow the law strictly, and any failure or slip in the process or the procedure must be dealt very seriously.”
Lourdes Hospital image from here. Dr. S. Ganapthy’s image from here.