Body Swapping: Vicarious Liability

Introduction:

Recently in May’2020 the Vashi police have register an FIR against the staff of a Hospital for handing over the body of a 29-year-old Mahammad Sheik. He was a laborer and died to the father of deceased Kajal Suryavanshi who died of jaundice on 4^th May. The Father of Kajal Unaware of this body Swapping, conducted the final rites on May 14^th. The father claim that the staff show him a body from far off and he think it was his daughter and cremate the body. [1]

This article thus looks into the various Procedures and the Legal aspect of the Body Swapping.

Legal Rights of a Dead Person

In the case of Munn v. Illinois[2], Field, J. defined and spoke about the right to life in the following words: “By the term ‘life’ as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoy; the provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world”[3].

This is also covered under Article 21 of the Indian Constitution. The Supreme Court (SC) of India has quoted the same words in various judgments [4] and fact expanded the scope of its understanding. In the case of Parmanand Katara, Advocate v. Union of India & Anr[5], the SC held that:

 “We agree with the petitioner that the right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also his body after his death. We thus find that the word and expression ‘person’ in Article 21, would include a dead person in a limited sense. And that his rights to his life which includes his right to live with human dignity, to have an extend meaning to treat his dead body with respect, which he would have deserve. It had been alive subject to his tradition, culture and the religion, which he professed.

The State must respect a dead person by allowing the body of that dead person to be treat with dignity. And unless it is require to establish a crime, to ascertain the cause of death and be subject to post-mortem or for any scientific investigation, medical education or to save the life of another person under the law, the preservation of the dead body and its disposal in accordance with human dignity.”

 Further article 297 of the IPC [6]“whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”[7]

Thus, in the Vashi Case FIR file on the basis of Article 297 of IPC.

The procedure that is to be followed relating to dead bodies in a Hospital Morgue

The general principles associated with the handling of dead bodies in a hospital is as follows:

1. It should be ensure that proper packing should be done before transferring the dead body to the mortuary.
2. The mortuary staff then should identify two identification marks of the deceased. Also the particulars of the deceased, and by giving the body a unique reference number.
3. Any separate body part, which proves that a person is dead, can aid in the identification and should. Therefore, be managed as though it is a whole-body (i.e. using a unique reference number).
4. Bodies that cannot be identify should be store properly until forensic researchers can investigate
5. The release of the dead body should only be released when identification is certain.
6. Visual recognition should be confirm such as Identity marks, clothing, etc.
7. Record of the contact detail, and the information of the person who claims the body reference number of the body should be maintained.[8]

Negligence in the Vashi Case: Vicarious Liability

Cases like the Vashi Case are a clear example of negligence committed by the staff where according to Winfield, “Negligence is a tort, is a breach of a legal duty to take care which results in damages”[9]. In the case of Minor Veeran v. T. V. Krishnamoorthy^[10], three elements of negligence have been observed:

1. A legal duty to take care,
2. breach of that duty
3. consequential damage to the plaintiff.

There is no doubt that there exist a duty of care between the staff of the hospital. The hospital and the deceased as held by the supreme court that every doctor has a duty to act with a reasonable degree of care and skill. It is held in the case of State of Haryana v. Smt. Santra.[11]

Further in the case of Joseph Alias Pappachan v. Dr. George Moonjerly [12]it was held that “Persons who run hospitals are in law under the same duty as the humblest doctor: whenever they accept a patient for treatment, they must use reasonable care and skill to ease him of his ailment. The hospital authorities cannot, of course, do it by themselves; they have no ears to listen to the stethoscope, and no hands to hold the surgeon’s scalpel. They must do it by the staff which they employ. If their staff are negligent in giving treatment, they are just as liable for that negligence. As anyone else who employs others to do his duties for him.”

So, it is quite evident that in the Vashi case, that there was a duty of care and there was a breach in the duty. This is because had the hospital follow all the protocols, bodies shouldn’t mix up.

In the above case, identification is also not confirm where the father claim that the staff let him see the body only from a distance. As a result, there was a violation of the dead’s fundamental right under article 21. And also a violation under article 297 of IPC.

Similar Body Swapping Case

The police can also invoke 406, 420 and 120B of the IPC for criminal breach of trust, fraud and criminal conspiracy if the police find there is something suspicious and it is not just a mere case of negligence as it did in an Ahmedabad body-swapping case [13]. Where two females were bought into the hospital, Mittal Jadav was declare dead. Whereas Nasreen had died while delivering a child.

On the next day, the Jadhav family came to collect the body. Assuming the body was of Mittal they collect the body and took it to their native place as per the ritual. On the same day when Nasreen’s family came to collect the body. They were told that the body is missing. Later it was found out that the bodies -had been swapped. Family members and Police suspect that Hospital authorities were hand in gloves and did the swapping knowingly.

There are many more cases of body-swapping that are report. Like that in Lucknow where a Muslim woman was Crematedas per Hindu rituals due to the negligence of the hospital. In Rajasthan were due to negligence of  a government hospital  bodies were swap  and many more such cases that we don’t even come across or even not reported.

Conclusion

This is a sad state of affairs where even though the law gives the dead the right to have a last rite, even though there is a well-established procedure that hospitals need to follow still we come across such cases. The law can only punish the offenders but can the law give another chance to the family members to perform the last rites. Somewhere or the other I feel that making a law in certain cases or upholding a particular law is just not the only solution.

 During this time where the nation is fighting coronavirus, we all need to ensure that the last rites of the dead are done. No more cases of body-swapping take place. ICMR has declared deaths because of Corona as non-Medico Legal Cases,[14] hence they have abridged process. Due to the fear of infection from dead bodies, there are likely more cases of Body swapping and non-performance of last rites. It is therefore the responsibility of the Hospital authorities to keep reiterating the procedures and doing Audits.

For the hospitals, it may be a mere number or Statistics but for each family, it is a tragedy.

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References:

[1] Body mix-up case: Cops book mason for wrong identification. (2020, May 20). Retrieved June 05, 2020, from https://www.hindustantimes.com/cities/body-mix-up-case-cops-book-mason-for-wrong-identification/story-w444tPIA9KesxW5NqZfLzK.html.

[2] (94 U.S. 111)

[3] Supra in first citation

[4] Kharak Singh v. State of UP, AIR 1963 SC 1295; Sunil Batra v. Delhi Administration, (1978) 4 SEC 494;

[5] (1995) 3 SCC 248

[6] Section 297 of IPC

[7] Supra in 5^thcitation

[8] medico legal, general guidelines for sudden death/found cases, p.15, retrieved from – http://qi.nhsrcindia.org/sites/default/files/medico_legal.pdf,  Guidelines for safe disposal of body, p. 2-3, retrieved from – https://ncdc.gov.in/WriteReadData/l892s/56270563731535195531.pdf

[9] Winfield and Jolowicz Tort, Twelfth edition, p. 69.

[10] AIR 1966 Kerala 172

[11]  AIR 2000 SC 3335

[12]  1994 (1) KLJ 782 

[13] Ahmedabad: Conspiracy alleged in body swap by VS Hospital, case filed. (2019, May 11). Retrieved June 05, 2020, from https://indianexpress.com/article/cities/ahmedabad/ahmedabad-conspiracy-alleged-in-body-swap-by-vs-hospital-case-filed-5723343/.

[14] Outlook. (2020, May 11). COVID death is non medico-legal case: ICMR. Retrieved from https://www.outlookindia.com/newsscroll/covid-death-is-non-medicolegal-case-icmr/1830704