This is part one of a two-part series on the Gorakhpur deaths. Part two deals with how the case filed after the August 2017 tragedy has been handled.

Gorakhpur: Once famous for being home to the Gorakhnath mandir, the poet Kabir and the writer Premchand, Gorakhpur – which is today best known for being the bailiwick of chief minister Adityanath – found itself in the news last year after the death of a number of children over three days at the city’s government-run BRD Medical College.

One year later, there is little agreement over why the deaths happened, but one fact is indisputable. Between August 10 and 13, the hospital’s piped oxygen supply ran out, leaving doctors – and the parents of infants being treated for encephalitis and other ailments – floundering.

Even as it is prosecuting a number of hospital officials for what it says is the “interruption” of oxygen supplies, however, the BJP government of Adityanath insists the children died of natural causes and not because of a shortage of oxygen.

गोरखपुर के बीआरडी मेडिकल कॉलेज में ऑक्सीजन की कमी से किसी रोगी की मृत्यु नहीं हुई है। — Government of UP (@UPGovt) August 11, 2017

Caught between these competing claims, the bereaved parents still do not know what took their children’s lives, an act of man or an act of god.

As part of its two-part investigation into this question, The Wire sought to examine (1) how the state authorities behaved in the months leading up to the tragedy, and (2) the course of the pending investigation.

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Local residents of Bhilwar call Srikrishun Gupta, ‘Doctor.’ He is not a doctor. He runs a pharmacy. But when we reach his small shop, there are people waiting to see him. They have ailments, even their animals have ailments and Gupta has medicines for them all.

When Gupta needed to consult a doctor himself, for his four-day-old infant, he went to the BRD Medical College on August 11, 2017. It was about 50 km away. He and his wife clutched their prematurely-born infant and rode there.

When they reached, they realised the hospital was in the middle of a crisis. Oxygen had run out and parents were frantically pumping oxygen into their children using ambu bags. Gupta and his wife were given one. They did their best. But their new-born child, a boy, died.

“The doctor told us, ‘Don’t stop pumping. Your baby will die,’” recalls Gupta of that night.

What does he believe is the cause of his child’s death? “The government is saying it was a natural death. If they put it like that, what are we supposed to say?”

Acts of god

Knowledge and power are the two axes around which an ‘act of god’ revolves. An act of god is a formal legal term, used widely in the worlds of business and insurance. In layperson parlance, it is defined as “an event that is outside of human control, and which is not directly caused by human activity.”

But can a string of acts by man be a set-up for ‘an act of god’?

For example, if a building in an earthquake-prone region is built without adequate resistance to tremors and collapses, can liability be placed on the builder, or was it all an act of god? Or if very sick infants need oxygen, but aren’t provided it in a hospital, whose fault is it when they die?

Fifteen days after the children died in the Gorakhpur hospital last year, Adityanath announced Rs 4 lakh compensation for every family affected by floods in UP last August.

If there is any casualty due to flood, Rs 4 Lakh will be given to the family of the deceased: UP CM Yogi Adityanath pic.twitter.com/IhEAcw18Ct — ANI UP (@ANINewsUP) August 26, 2017

Even if we accept the Gorakhpur deaths as an act of god, why has the Adityanath government treated the victims as children of a lesser god? The Wire visited a number of the parents of children who died in the hospital for this story. None of them had received compensation or even a visit by any UP government official as of July. Some of them had received Rs 2 lakh from former chief minister Akhilesh Yadav, and a visit by Rahul Gandhi.

The question to ask of Gorakhpur’s authorities is: Did they have both knowledge (that they will receive a high volume of infants in need of oxygen) and power (that they can take steps taken to ensure that oxygen is available) to avert this tragedy? Did they neglect to act?

The Wire’s investigation suggests they did.

Genesis of the Gorakhpur tragedy

The Gorakhpur tragedy began on the night of August 10, when piped liquid oxygen ran out at the government-run BRD Medical College.

This hospital receives thousands of patients, especially in ‘encephalitis season’ which begins annually around August. The hospital swells with patients not just from Uttar Pradesh but also Bihar and Nepal. Other decent options are in Lucknow, 276 kilometres away. Small private clinics often turn away these poor patients who bring their critically-ill children because they have a slim chance of survival and because parents don’t have the funds anyway.

They pin their hopes on BRD Medical College.

One of the many inquiry reports which The Wire has studied notes that a “beep alarm started in liquid oxygen plant” at 7:30 pm on August 10, when residual oxygen was at 150 mmwc. By 1:30 am on August 11, “liquid oxygen supply was stopped due to low pressure.” Only three days later – on August 13, by 2:15 am – was oxygen finally restored. In the interim, the entire hospital was making do with oxygen cylinders that they were sourced in a frenzy.

At least 24 infants and children died during this period.

How did the state government neglect this growing tragedy?

The Wire has studied over 30 letters written to the authorities at the BRD Medical College and the government of UP, alerting them to the fact that the budget had not been cleared for months and pending payments to the oxygen supplier had mounted to Rs 63 lakhs.

Chief minister Adityanath had, in fact, visited the hospital just a day before the tragedy, on August 9. By then, the hospital staff had already been sent a legal notice by the oxygen supplier, demanding their payments, failing which, they said that service would be discontinued.

As soon as the news of the deaths broke, the government of Uttar Pradesh decided to go with the ‘act of God’ theory. According to an early press conference held by UP’s health minister Sidharth Nath Singh, all the infant deaths in that period were due to natural causes and not due to oxygen shortage. He did not take any responsibility for the months of neglect by his own office and his juniors in this case.

This was a shrewd escape route for the government. It meant that they thus did not order any post-mortems, and didn’t bother to give any compensation to the families.

Despite the act of god theory, however, nine people were arrested and some have been in jail for 11 months. They are under investigation, ironically, for their role in the oxygen shortage. The ones recently released on bail are: Manish Bhandari (owner of Pushpa Sales who dealt with oxygen), Dr Kafeel Khan (doctor in the paediatric ward), Dr Satish (nodal officer for liquid oxygen), Dr Rajiv Misra (principal of the medical college) and Dr Purnima Shukla (wife of Misra). The ones who are still seeking bail, 11 months on, despite even the chargesheet being filed are Gajanand Jaiswal (pharmacist), Uday Pratap Sharma, Sanjay Kumar Tripathi and Sudhir Kumar Pandey (all three were junior clerks and technical staff).

After almost an year, my family is complete. My mother Dr Purnima Shukla got released today after the SC order. I am sure the truth will prevail soon & justice will be served. Thanks a ton to each & every person who came to support us.And to all those who prayed for us ? pic.twitter.com/sex2sTnVU4 — PURAK (@misra_purak) July 31, 2018



Curiously, none of the top government officials who also had responsibility here are under investigation: This despite the fact that the principal secretary in the government of UP (Anita Bhatnagar Jain), the director general of medical education (DGME) in the government of UP (K.K. Gupta), the superintendent in charge at BRD Medical College, the head of the pediatrics department (Dr Mahima Mittal) and the district magistrate (Rajeev Rautela), and even chief minister Adityanath and health minister Sidharth Nath Singh, were all informed for months, via letters, that they needed to release payments to the oxygen companies. None of them were even named as accused and K.K. Gupta himself filed the FIR against the other nine.

Essentially, a serious man-made crisis was visibly growing for months, at BRD Medical College. Those concerned simply neglected to act and are not even under investigation.

What has the UP government been saying publicly?

In court, the UP government has adopted a two-part strategy: It says that there was an “interruption” in the supply of oxygen, but that the children died due to natural causes, and not due to this interruption.

What this means is that while the UP government is putting the blame for the deaths on an ‘act of God’, they are also prosecuting various junior employees for their human actions.

The government’s stand has been that there was no “shortage” of oxygen supply at the hospital but there may have been an “interruption.” They also say this “interruption” was adequately managed: Hospital staff made parents physically pump oxygen into their infants for hours with ambu bags and also organised some backup oxygen cylinders.

The fact is, according to initial as well as later inquiry reports, piped liquid oxygen was restored only on August 13, whereas it dropped to urgent levels on the night of August 10. This means there were three whole days of chaos and uncertainty.

The only real way to ascertain what role the oxygen crisis may have played in the death of the children would have been to conduct post-mortems. Yet, the UP government chose not to do so.

This has been an effective play for the chief minister: While spreading confusion, such that all things are simultaneously possible, and almost nothing seems true, the government of UP has managed to parry any political responsibility.

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Rs 63 lakh of debt on oxygen and over 30 reminder letters

Oxygen is not cheap but it is essential and life-saving. In India, medical oxygen is considered a drug and features in the ‘National List of Essential Medicines’ which the government regulates the prices of. It is also on the World Health Organization’s list of essential medicines.

Take for example the month of May 2017. The hospital was billed Rs 12,80,882 for liquid oxygen. In June 2017, it was billed Rs 18,59,197. Besides this, the hospital also stocked and used oxygen cylinders. The Wire has examined these records.

But BRD Medical College was not paying these hefty bills and its dues were mounting. By July 2017, BRD Medical College had chalked up a debt of Rs 63,65,702, just on liquid oxygen.

Piped liquid oxygen was being supplied to BRD Medical College by a private company called Inox. This was being dispatched from Inox’s facility in Rajasthan, all the way to Gorakhpur which is in the eastern end of UP, this is 800 kilometres away. It takes nearly three days for oxygen to reach Gorakhpur by road.

There was also a middleman, a company by the name of Pushpa Sales, run by Manish Bhandari. Incidentally, Bhandari was the first among the nine arrested to get bail. He got this from the Supreme Court, where he was represented by former attorney general Mukul Rohatgi.

In 2014, a three-way contract was drawn up between Inox, Pushpa Sales (‘dealer’) and BRD Medical College (‘buyer’). This was drawn up during the term of the previous principal, Dr Kushwaha, a well-known name in Gorakhpur on encephalitis. This contract is now under investigation.

When the high court denied Bhandari bail, it recorded that Pushpa Sales was not even authorised to deal in oxygen. Its role was in installing and maintaining the equipment, invoicing the hospital for payments, collecting these, and paying Inox some advance payments.

The Wire has studied this contract and its payment and termination clauses. It is substantially favourable to the suppliers, and says that the agreement may be terminated, “in the event of a breach by the other Party, which breach, if capable of being cured is not remedied within a period of 30 days from the date of receipt of the notice in that behalf from the non-defaulting party.” It also says that if Pushpa Sales fails to make payments to INOXAP, then Inox would be entitled to “suspend deliveries of the Product under the Agreement,” “change payment terms to pre-payment” and even “remove equipment from the Site.”

This is exactly what happened, as the two companies finally pulled the plug on BRD hospital’s oxygen supply following months of pending dues.

Everyone knew oxygen was running out

Adityanath may have brushed aside the Gorakhpur tragedy as nothing extraordinary, but his own office was sent multiple letters informing it of the impending crisis.

Four months before the tragedy, on April 6, 2017, Pushpa Sales wrote a letter to his office as well as to health minister Singh. It was titled, “Reminder 1”.

“We request you to clear the dues without any delay so that we can pay INOX company on time. In case of delayed payment, we won’t get the supply and BRD Medical College will be responsible for this. So this is a request to clear the above dues as soon as possible so that our organisation could continue to provide timely supply,” said the letter to the chief minister.

Even two days before the crisis hit, warning letters were being written: “We want to inform you that the gas plant has only 2 or 3 days of stock available and we request you to make arrangements to use jumbo cylinders.” This was sent by Pushpa Sales to the principal of BRD Medical College on August 8, 2017. “We don’t take any responsibility for this,” they said, signing off their letter.

These letters were among many which were sent to the principal of the medical college (Rajiv Misra), the principal secretary in the government of UP (Anita Bhatnagar Jain), the director general of medical education (DGME) in the government of UP (K.K. Gupta), the superintendent in charge at BRD Medical College, the head of the pediatrics department (Dr Mahima Mittal) and the district magistrate (Rajeev Rautela). Except Misra, none of these officials have been named as an accused in this case.

On June 3, 2017, Pushpa Sales sent these officials a letter which said, “We want to bring to your notice that in the number 100 ward of the hospital, there are AES/ brain fever patients who are in serious condition…. For them, 24 hours supply of oxygen is very important. In the rainy season, the number of patients will also rise.” Here too, they reminded of Rs 50 lakh of unpaid dues.

The day to day handling of this crisis was the responsibility of the principal at the time, Dr Rajiv Misra. Pushpa Sales sent him about 20 letters to clear pending dues.

Misra, in turn, had been regularly passing this information on to UP government officials. He also wrote ten letters to the UP government, as early as May 31, 2017, asking them to clear the pending payments.

For example, on July 29, 2017, Misra wrote to the DGME saying that the dues to Pushpa Sales had reached approximately Rs 50 lakh “and they are saying that in the absence of payment, they will stop the supply. I request you to please clear Rs 50 lakh in the budget for this so that this can be cleared.”

On August 3, Misra took part in a video conference with the DGME, principal secretary and district magistrate. He raised the issue in this video conference as well and followed that up with another letter to put this on record. “I also want to bring to your notice that the number of patients with brain fever and AES are increasing,” said one of his letters.

In all, The Wire studied about 30 prescient letters that warned the appropriate authorities that the crisis was real and imminent. All of these officials chose to neglect the urgency of the crisis.

Who finally pulled the plug on the oxygen?

With Rs 63 lakh in payments pending over ten months, and following several reminder letters and finally a legal notice, the two companies – Inox and Pushpa Sales – pulled the plug on the oxygen. According to the terms of the contract they had signed, they say they were allowed to do so.

Pushpa Sales sent a legal notice to Rajiv Misra, the principal of BRD Medical College, on July 30, 2017. It was copied to government officials, the DGME and the district magistrate.

In their letter, they gave the hospital 15 days to clear its dues, that is, until August 14. They were supposed to give 30 days’ notice, and their letter of August 8 says that Inox had already stopped the supply. Of course, they had already informed even the chief minister’s office in April 2017 that they would be compelled to cut the supply of oxygen at some point.

By August 10, the “beep alarm started in [the] liquid oxygen plant.” By the early hours of August 11, the oxygen ran out completely. Desperate parents manually pumped oxygen to their babies, scared to pause. Finally, they returned to their villages with their dead children. Many say the hospital refused to do a post-mortem and told them to just leave with the death certificate.

As the crisis grew, the media descended and public outcry grew.

In all this chaos, suddenly and finally, payments to Pushpa Sales were cleared. By August 11, nearly Rs 52 lakhs was cleared.

These acts of man were too late. Twenty-four children had already died in Gorakhpur by then.