Post Mortem

On 25 April, the Allahabad High Court granted bail to Kafeel Khan—a doctor widely believed to have been framed in the case of the deaths at a Gorakhpur hospital last August. A substantial amount of reporting suggests that many patients—34 children and 18 adults—died because of a shortage of oxygen. The oxygen provider had cut the supply after the administration repeatedly delayed payments. Instead of questioning officials responsible for procuring the oxygen, the state government has accused doctors of medical negligence. “After observing the presented facts,” the judge Yashwant Verma said, “it is the opinion of this court that there is nothing in the records that can prove Dr Kafeel guilty of negligence on an individual level.” Verma added, “The court should also keep in mind that in the affidavit … presented to the court by the state government, shortage of oxygen has not been given as the cause of death.”

The court was pointing out a glaring contradiction in the case against Khan and other doctors. The Uttar Pradesh government has held in court that patients at the BRD Medical College hospital died not because of a shortage of oxygen, but of natural causes. On the other hand, it also accused several doctors of medical negligence. If the state believes patients died of “natural causes,” how can a case be made for medical negligence?

This is just one of many discrepancies in the case against the nine accused in the tragedy. Even the chargesheet filed by the Uttar Pradesh Police reflects this. The police have gone back on its statements multiple times, the identical statements of several witnesses seem clearly scripted, and the evidence furnished to prove charges mostly comprises things “heard” or “seen” by the witnesses. The investigation seems to have been less focussed on identifying the causes and culprits of the tragedy, and more on making scapegoats of those initially accused. While Khan, the doctor Satish Kumar, and Manish Bhandari—the director of the oxygen-supply firm Pushpa Sales—have been given bail, six others are still in jail.

The most startling aspect of the chargesheet are the testimonies of the parents who lost their children on 10 and 11 August 2017. Many of them had told media organisations that their children had died due to an oxygen shortage. However, in the chargesheet, the investigating officers put the same question before all the parents: “Did your child die because the oxygen supply was cut?” The recorded responses are almost identical: “Shortage of oxygen did not kill our child. When there was a shortage of oxygen, an oxygen cylinder and an AMBU bag was provided. Our child has died because of a serious ailment.”

The investigating officer in the scandal, Abhishek Singh, filed the chargesheet against the nine accused within three months of the incident. The police then asked for more time to investigate an “anomaly” in the giving of the tender for liquid oxygen supply to Pushpa Sales, even though this had no direct relation with the 10 August tragedy. After four months of investigation, the police found everything “alright” with the tender process.

The charges against Kafeel Khan, one of the main accused, seem ridiculously trumped up. Khan, who had nothing to do with procuring oxygen, was accused of fraud, corruption, culpable homicide, spreading misinformation online, misappropriation of government funds and carrying out a criminal conspiracy. According to the chargesheet, the investigating officer did not find any proof against Khan in the misinformation, corruption and fraud cases. He still stands accused of the other charges.

In the case of misappropriation of government funds, Khan is accused of running a private practice while receiving a non-practice allowance from the government hospital. As the incharge of administering the government’s National Health Mission scheme at the hospital, he is also accused of siphoning off Rs 34,683 through fake purchases. He has been accused of conspiring with the college’s former principal Rajiv Mishra and Mishra’s wife, Purnima Shukla, to carry out corrupt practices. These charges have no relation to the events of 10 and 11 August.

The only charge relating to those events is that of culpable homicide, which states Khan had prior knowledge of an oxygen shortage but did not inform his seniors, and thus failed to carry out his duties as the incharge of the encephalitis ward where the 34 children died in August. Two of Khan’s colleagues, Mahima Mittal and Bhupendra Sharma, have testified against him on this charge. Khan and his advocate have repeatedly asserted that he was not incharge of the encephalitis ward, and that correspondence would prove that Bhupendra Sharma, the doctor who has testified against Khan, was. Khan’s advocate, Ramapati Shukla, has also disputed other charges against him. “As per the Section 409 of IPC, Dr Kafeel is accused of making purchases worth Rs 34,683 without issuing a tender, which is wrong because as the Nodal Officer he has the right to spend Rs 20,000 every month without issuing any tender,” Shukla told the court.

In separate letters written to Uttar Pradesh’s chief secretary and the DGP, Khan has given important details regarding the case and insisted on including them in the investigation. In the letter to the chief secretary, Khan wrote that he was on a casual leave on 10 August and thus could not have been aware of the oxygen shortage. “On 10 August, in the middle of the night, I received a WhatsApp message saying the ward had run out of oxygen,” he wrote. “I immediately contacted Central Pipeline Operator On-Duty Balwant, Head of Department Dr Mahima Mittal, Principal Dr Rajiv Mishra, Principal Caretaker Dr Ramkumar, Balaji Gas, Modi Gas Agency and Mayur Gas Agency. I also informed about the situation to the Gorakhpur Magistrate.” He wrote that he also contacted the director general of the Sashastra Seema Bal, asking for trucks to help collect and transport gas cylinders to and from the mentioned gas agencies. He goes on to detail his efforts through the night to restore oxygen supply in the ward. The letter written to the DGP gives the same account.

Khan’s account, which could be easily verified through the people mentioned in it, could have been an important testimony to prove an oxygen shortage and its repercussions. Yet it is not even mentioned in the chargesheet.

Other prominent accused include Rajiv Mishra and Purnima Shukla. Both are accused on several counts of corruption and negligence for ignoring the payment due to Pushpa Sales. Rajiv’s son, Purak Mishra, wrote a letter on 15 April to the president of the Indian Medical Association in reply to the allegations against his father. The letter said that there was no administrative failure on behalf of the medical-college administration. It also said that the government failed to provide an adequate budget for the arrears due to the supplier despite repeated letters sent by Rajiv to higher officials. In an interview, Purak told me that there were strict orders from the government to pay for each item only from the budget allotted for it, and that whenever a budget installment was received from the government, payments for liquid oxygen were made. He claimed that since his mother was not in any administrative post in the college, there should be no question of her committing any corruption.

The director of Pushpa Sales, Manish Bhandari, has been accused of being part of a criminal conspiracy and of criminal breach of trust. In the chargesheet, the statement of the liquid-oxygen central-pipeline operator has been recorded, saying that liquid oxygen was delivered to the hospital on 4 August. When a repeat order was placed over the telephone, Pushpa Sales responded by saying that until the previous payment was completed, it will not be able to further supply liquid oxygen. Despite repeated phone calls requesting supply, oxygen was not received. Later, on 11 August, a total of four payments were made and the liquid oxygen was delivered on 12 August.

Manish Bhandari’s advocate, Padmakar Dutt Tiwari, has said that the supply of liquid oxygen was not halted, even though payments were overdue. Tiwari said that the medical college ordered liquid oxygen on 2 August, which was delivered on 4 August. After this, there were no orders placed until 9 August.

According to Pushpa Sales, from 23 November 2016 to 13 July 2017, 21 bills, worth a total of over Rs 63 lakh, were unpaid by the hospital. Letters requesting payment were sent to the medical college on 26 February, 28 February, 4 April, 6 April, 12 April, 17 April, 2 May, 3 May, 16 May, 29 May, 6 June, 13 June, 28 June and 18 July, but no payments were made. Besides the college administration, notices were also sent to Gorakhpur’s district magistrate, Rajiv Rautela, the principal secretary for medical education, Anita Jain Bhatnagar, and the director general of medical education, KK Gupta. Neither Rautela nor Bhatnagar has been questioned. While Gupta was questioned, there was no further investigation into the matter, in spite of his unsatisfactory answers. The chargesheet mentions that when the investigating officer asked Gupta what action was taken when Pushpa Sales sent a legal notice and letters requesting payment and warning about discontinuing the oxygen supply, his reply was that the letter and the notice were marked to the finance controller—a post at his own office. When asked if it was his responsibility to maintain an uninterrupted supply of oxygen, he did not respond. The then finance controller, Prakash Chandra Srivastava, told the officer that all the letters marked to him by the DGME were forwarded to the BRD Medical College, thus establishing a circle of blame. There is no mention in the chargesheet of why the payment was delayed for so long, and who was responsible for it.

Here are some other questions that the chargesheet does not answer:

When it was reported that the deaths took place due to an oxygen shortage, why were no postmortems or death audits conducted? Without this proof, how can the cause of the deaths be determined?

If the principal and the incharge of oxygen maintenance were on leave, as they have claimed, then who took on their roles? Why have their roles not been investigated?

On 10 and 11 August, how many patients were admitted to the wards of the surgery department, gynaecology department, medicine and trauma centre, and how many of them died? This information has not yet been made public, despite reports that all of these wards were directly affected by the halt in the oxygen supply.

Why have the roles of Gorakhpur’s district magistrate, Rajiv Rautela, the principal secretary for medical education, Anita Jain Bhatnagar, and the director general of medical education, KK Gupta, not been investigated? Why have the state’s health minister and minister for medical education not been questioned?

Instead of being investigated for their roles, why were Rajiv Rautela and KK Gupta allowed to be part of the investigating committees created to look into the case? Rautela constituted an investigating committee that found Rajiv Mishra, Satish Kumar and Manish Bhandari responsible for the oxygen shortage and its consequences. Gupta was asked to submit a report by the government, after which an FIR was filed.

Both Khan and Satish Kumar have alleged that, to protect the real culprits, the state government is making them fall men. The Gorakhpur unit of the Indian Medical Association has also said that proper efforts to carry out a serious investigation to uncover facts have not been done.

Nothing illustrates the farcical nature of this investigation better than the statement of Manager Rajbhar, a painter who tried to file an FIR at a nearby police station after his daughter died at the hospital. Rajbhar’s first-hand account of the night was published in several media outlets. “There was no oxygen,” the newspaper DNA quoted Rajbhar as saying. “Doctors and hospital staff were panicking. So were parents and relatives. We had seen with our own eyes children gasping for breath. Convulsions followed and life oozed out. After 10 pm death calls started pouring in from these wards. Parents would go in and come out with bodies of their children … I personally counted up to 25 deaths and prayed God, not my daughter.” Rajbhar added, “At 10 pm on August 11, my name was called. I was numb. I went inside only to find that Sunita”—his wife—“has wrapped the body of our only daughter in her dupatta waiting for me to take it out.”

However, his statement in the chargesheet reads: “Shortage of oxygen did not kill our child. When there was a shortage of oxygen, an oxygen cylinder and an AMBU bag was provided. Our child has died because of a serious ailment.”

(This article was translated from Hindi by Soumya Mishra.)