PETITIONER:
A.S. MITTAL & ORS.
Vs.
RESPONDENT:
STATE OF U.P. & ORS.
DATE OF JUDGMENT12/05/1989
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
VENKATACHALLIAH, M.N. (J)
CITATION:
1989 AIR 1570 1989 SCR (3) 241
1989 SCC (3) 223 JT 1989 (2) 419
1989 SCALE (1)1535
ACT:
Article 32--"Eye Camp"--Conducted--Several people oper-
ated for cataract--Many becoming totally blind in operated
eyes--Victims granted monetary relief payment on humanitar-
ian considerations ordered by Court--Necessity for strict
compliance with guidelines issued by Government for conduct
of eye camps--Emphasised-Suggestion to the Union to incorpo-
rate some recommendations noted in the judgment made by
Expert Sub--Committee of the Indian Medical Council in the
Revised Guidelines.
HEADNOTE:
Lions Club. Pottery Town, Khurja (U.P.) actuated by the
desire to provide relief and facilities of opthalmic surgi-
cal services particularly to the persons residing in rural
areas, suffering from eye-troubles, arranged and opened an
"Eye Camp" at Khurja after obtaining necessary permission
from the Chief Medical Officer, Buland Sahar. In this con-
nection, the Club invited Dr. R.M. Sahay of the Sahay Hospi-
tal at Jaipur and team of Doctors to do the surgical job.
The Club published propaganda literature with attractive
slogans, e.g., 'Get operated and go home', 'No restriction
on food'. 'No bed rest' and 'No stitches to be removed'. In
response thereto substantial number of patients visited the
Camp.
Dr. Sahay arrived in Khurja on 21.4.1986 and examined
about 122 patients. One hundred and eight patients were
operated upon, 88 of them for cataracts. Dr. Sahay left
Khurja that evening for Moradabad where he was schedule to
conduct another similar Eye Camp.
It is unfortunate that the project which was opened for
the good of the suffering people, proved a disastrous medi-
cal mis-adventure, as the operated eyes of the patients were
irreversibly damaged, owing to a post-operative infection of
the intra Ocular Cavities of the operated eyes. and the eyes
were completely damaged. Similar mishap happened at Morada-
bad also though on a lesser scale, the number of affected
persons being 15 only. To remove the infection that caused
this damage. Doctors gave the necessary treatment but to no
avail.
242
In order to find out the causes of this mishap, i.e..
the source of infection. the Government appointed Inquiry
Committee. reports whereof were placed before the Court for
favour of perusal.
Two social activists, Shri A.S. Mittal and Shri Om
Prakash Tapas have filed these Writ Petition in the form of
a Public Interest Litigation.
The Petitioners have made serious allegations about the
very bona fides behind the sponsoring of iII-fated 'eye-
camp' and have alleged monetary gains on the part of the
sponsors but the Court did not find any material to substan-
tiate the said allegation. The petitioners prayed that (i)
the victims of this medical mishap be given expert rehabili-
tatory treatment and appropriate compensation, (ii) that the
Government do conduct a thorough investigation as to the
conditions which rendered a medical misadventure of such a
scale possible and evolve proper guidelines which will
prevent recurrence of such tragedies and. (iii) that appro-
priate legal action be instituted against Dr. Sahay and his
team and other Government officials concerned.
Pursuant to the reports of the Inquiries conducted into
the causes of mishap. penal action had been initiated
against Dr. Sahay & others.
The Court considered the following aspects of these proceed-
ings;
(a) Whether the Guidelines prescribing norms and condi-
tions for the conduct of "Eye Camps" are sufflciently com-
prehensive to ensure the protection of the patients who are
generally drawn from the poor and less affluent section of
the society or whether any further guidelines are required
to be evolved.
(b) What relief, monetary or otherwise should be afford-
ed to those who have suffered?
Disposing of the Writ Petition, this Court,
HELD: Modern techniques in opthalmic surgery render
cataract a minor operation. A cataract affected eye when
properly operated Is expected to become normal. The opera-
tion Is meant to remove an obstruction to vision and resto-
ration of normal eyesight, This Implies that the eyes of
patients selected for operation has the potential for resto-
ration of sight. In the Instant case, they have become
totally blind In the operated eyes, [247H; 248A-B]
243
A mistake by a medical practitioner which no reasonably
competent and careful practitioner would have committed is a
negligent one. [250D]
One of the questions that might arise in the appropriate
forum is whether the Doctors judged by the circumstances in
which they were working made a mistake and if so whether
such a mistake was negligent. [250D-E]
Law recognises the dangers which are inherent in surgi-
cal operation. Mistakes will occur on occasions despite the
exercise of reasonable skill and care. [250G]
Jackson and Powell on Professional Negligence, 1982 Edn.
The necessity of the highest standards of aseptic ster-
ile conditions at places where opthalmic surgery-or any
surgery--is conducted cannot be over-emphasised. It is not
merely on the formulation. of the theoretical standards but
really on the professional commitments with which the pre-
scriptions are implemented that the ultimate result rests.
[254B-C]
The factual foundations requisite for establishing the
proximate causal connection for the injury has yet to be
established conclusively. On humanitarian consideration, the
victims should be afforded some monetary relief by the State
Government. In addition to the sum of Rs.5,000 already paid
by way of interim relief, the State Government shall pay a
further sum of Rs. 12,500 to each of the victims. The vic-
tims entitled to receive the additional payment shall be the
same as those who had the benefit of the interim relief of
Rs.5,000. [255D-F]
That the Revised Guidelines dated 9.2.1988 with the
suggested modifications can be held to be satisfactory.
[254F]
The Court abstained from pronouncing on the question of
culpable rashness or negligence on the part of the Doctors
or others against whom separate action is either pending or
contemplated. [246G]
Dr. Laxman Balakrishna Joshi v. Trimbak Bapu Godbols,
AIR 1969 S.C. 128, Para 11 and Street on Torts, [1983] (7th
Edn.), referred to
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1247 of
1986.
244
(Under Article 32 of the Constitution of India).
Ranji Thomas and T. Sridharan for the Petitioners.
B.P. Beri, B.R. Agarwala, Miss Sushma Manchanda, Miss A.
Subhashini, B.D. Sharma, R.S. Yadav, Yogeshwar Prasad, Mrs.
S. Dikshit, H.K. Puri and P. Paremeshwaran for the Respond-
ents.
The following Order of the Court was delivered:
ORDER
The facts of this case are indeed, distressing. The
Lions Club, Pottery Town at Khurja in Uttar Pradesh arranged
and conducted, as part of its social service programme, an
“Eye-Camp” intended to extend facilities of expert Ophthal-
mic surgical services to the residents of the town. The Club
invited Dr. R.M. Sahay of the Sahay Hospital, Jaipur and his
team of doctors to offer the surgical services. The Camp was
arranged in ‘Aggarwal Dharamshala’ at Novelty Road, Khurja.
Dr. R.M. Sahay and his team of doctors and para-medical
staff, who arrived in Khurja on 21st April, 1986, examined
about 122 patients. One hundred and eight patients were
operated upon, 88 of them for Cataract which, with the
modern advances in Ophthalmic Surgery, is considered a
relatively minor and low-risk surgery. Dr. Sahay left Khurja
that evening for Moradabad where he was scheduled to conduct
similar operations at another “Eye-Camp.”
But the whole programme at Khurja, however laudable the
intentions with which it might have been launched, proved a
disastrous medical misadventure for the patients. The oper-
ated-eyes of the patients were irreversibly damaged, owing
to a post-operative infection of the Intra Ocular Cavities
of the operated eyes. The doctors present at the Camp got in
touch with Dr. Sahay at Moradabad and administered anti-
biotic medication, both oral and local, for the infection.
Dr. Sahay returned on the 24th April and undertook himself
some ameliorative treatment. But the operated eyes had been
damaged completely. Similar mishap, but on lesser scale
affecting some 15 patients, repeated itself at Moradabad.
Some of the victims were later sent to and treated at Dr.
Sahay’s Hospital at Jaipur. But their condition did not
improve.
It is now undisputed that this terrible medical mishap
was due to common contaminating source. The suggestion in
the Report of the
245
enquiries that ensued is that, in all probability, the
source of the infection, referred to as E coli infection of
the intra ocular cavity, was the “normal saline” used on the
eyes at the time of surgery. Dr. Sahay who had himself
brought all medicines and surgical instruments for use at
the Camp claims to have purchased the Saline from a certain
M/s. Mehtaad Company, Jaipur on 22.3.1986 under Invoice No.
1533.
2. The matter was brought before this Court in the form
of a Public Interest Litigation under Article 32 by two
social activists, Shri A.S. Mittal and Shri Om Prakash
Tapas, acting on behalf of an organisation called ‘Union for
Welfare and Human Rights’. Originally, the four respondents
were the State of U.P., Dr. R.M. Sahay, the Chief Medical
Officer, Buland Sahar District (U.P.) and the Lions Club of
Pottery Town, Khurja. However, this Court by its order dated
26.9.1986 directed the Indian Medical Council and the Union
of India to be impleaded as parties to the proceedings. All
the respondents have filed their respective counter-affida-
vits.
In the Writ Petition, the petitioners have made serious
allegations about the very bona fides of, and the intention
behind, the sponsoring of the iII-fated ‘eye-camp’ and have
alleged that motives of monetary gains by way of State and
International subsidies. But no material is placed before
the Court to substantiate this allegation. The prayers in
the writ petition are that: the victims of this medical
mishap be given expert rehabilitatory treatment and appro-
priate compensation; that Government do conduct a thorough
investigation as to the conditions which rendered a medical
misadventure of such a scale possible and evolve proper
guide-lines which will prevent recurrence of such tragedies;
and that appropriate legal action be instituted against Dr.
R.M. Sahay and his team and also against officers of the
Government who, according to allegations, committed serious
breaches of duty in sanctioning permission for the conduct
of the ‘eye-camp’ without ensuring a strict compliance with
the conditions prescribed in the Guidelines prescribed by
the Government in that behalf and in not effectively dis-
charging the duties enjoined upon them to over-see the
satisfactory and safe functioning of the camp.
3. At the directions of the Government of Uttar Pradesh,
the Deputy Director (Eye Treatment). conducted an inquiry
into the happenings and his report and recommendations
submitted to the Government are produced in the proceedings.
Similarly, the inquiry report dated 8.6.1986 conducted by
Shri Shatrughan Singh, Sub-Divisional Magistrate, Khurja as
to the incident, are also before the Court. We
246
have perused these reports and the counter-affidavits and
heard learned counsel.
4. So far as the grievance in the Writ Petition of
prosecutorial inaction on the part of the Government and the
need to direct Government to initiate appropriate action
against those responsible for the tragedy is concerned, it
was submitted before us that persuant to the results of the
inquiries conducted by the Deputy Director (Eye Treatment)
and the Sub-Divisional Magistrate, appropriate follow-up
action is contemplated by the Government against persons
concerned and that, indeed, a criminal case has been regis-
tered against Dr. R.M. Sahay under Section 338 of the Indian
Penal Code.
It was, however, submitted on behalf of Dr. R.M. Sahay,
Respondent No. 2, that we should abstain from saying any-
thing which might tend to pre-judge merits of the prosecu-
tion. In his counteraffadivit, Dr. Sahay says:
“The police has registered a case u/s 338 of
the Indian Penal Code, against the Answering
Respondent, and he has been admitted to bail.
Any process by which the answering respondent
would be compelled to disclose, in advance,
his defence at the criminal trial by replying
to specific allegations in the Writ Petition
would be violative of Art. 20(3) of the Con-
stitution of India, in so far as it concerns
the Answering Respondent.”
Referring to the limited scope of the present proceed-
ings, Dr. Sahay expresses the confidence:
” …… that in view of the noble objective
of this kind litigation, it will not in any
manner be prejudicial to the answering re-
spondent.”
We think we should accept the submission of the doctor
and should abstain from pronouncing on the question of
culpable rashness or negligence on the part of the doctors
or others against whom separate action is either pending or
contemplated.
5. But there are some assumptions and Statements in
counteraffidavit of Dr. Sahay that cannot be allowed to pass
without comment. It is undisputed that out of those operated
at Khurja, at least 84 persons suffered permanent damage of
the operated eyes. It is said
247
that about 15 similar cases occurred at the Moradabad ‘Eye-
Camp’. Indeed, in the course of his counter-affidavit, Dr.
Sahay admitted the unfortunate event which he called a
“Mishap”:
“The medical mishap at the Khurja Camp is the
only one he has encountered in his entire
extensive experience.”
“Despite all possible care MISHAPS cannot
always be avoided in human errors because the
error of one link in the entire chain may
sometime result in a total failure.”
But the doctor’s description of what
happened to the victims is somewhat of an
over-simplification. As to the. devastation
the almost universal post-operative infection
left behind in its trial, the doctor says:
“It is unfortunate that despite every care
taken by the Answering Respondent and his
associates and assistants a large number of
patients could not regain their vision in the
Khurja Camp.”
“It is extremely unfortunate that some 84
patients’ vision could not be restored despite
every care bestowed by the answering respond-
ent and his associates and assistants.”
“The number of patients operated upon at
Moradabad Camp for cataract were about 380 and
the vision of about 10 of them could not be
restored. A small percentage of failures is
considered normal ….. “
(Emphasis supplied)
We are afraid, the doctor may not be justified in this
description of the large-scale and calamitous effects the
operation had on the hapless victims. It is, perhaps, a
euphemism to call the incident as one where “some 84 pa-
tients’ vision could not be restored.” These are not mere
cases of eye-sight of the patients not having been restored
in the sense that the surgical operations conducted on them
did not yield the desired result; or that no positive bene-
fit was derived by them from the surgery. But the picture is
entirely different. It is not merely that the unfortunate
patients did not derive any benefit from the surgery but
were greatly worse-of than they were before the surgery,
owing to the post-operative intra ocular infection that
damaged the operated eyes beyond redemption. Even according
to Dr. Sahay the modern techni-
248
ques in opthalmic surgery render cataract a minor operation.
A cataract affected eye when properly operated is expected
to become normal. The operation is meant to remove an ob-
struction to vision and restoration of normal eye sight.
This implies that the eyes of patients selected for opera-
tion had the potential for restoration of sight. In the
present cases, they have become totally blind in the operat-
ed eyes.
Apart altogether from the causal-connection between the
widespread infection and medication or surgical procedures,
as the case may be, applied or employed, it is really undis-
puted that such a general and widespread post-operative
infection did occur. Referring to the medical management of
the emerging crisis, Dr. Sahay himself says:
“It may be mentioned that on the morning of
22nd April, 1986, Dr. R. Sekhri opened the
bandage and suspected intra ocular infection
and therefore commenced antibiotic treatment
both local and oral. On the 22nd April, Dr.
Sekhri reached Moradabad for consultations.
The Answering Respondent approved of the
antibiotic medicines and sent Dr. M. Punjabi
with additional supplies of medicines of
Khurja. On 23.4.1986 both Dr. Sekhri and Dr.
M. Punjabi gave anterior chamber wash and
antibiotic medicines. At about midnight the
answering respondent rushed by road to Khurja
without any consideration for his personal
comfort and commenced attending the patients.
He washed anterior chambers performed vitrec-
tomy (removing the infected part) and adminis-
tered pain relieving medicines. The petition-
ers have inexactly described the doings as
operation, sedation and removal of Cornea. All
this was done in the same room in which the
earlier operations were performed.”
6. One of the points brought out in the petition is that
the propaganda literature published by the Lions Club in
relation to the camp was that allurements, prohibited by
medical ethics, were held out to the patients with attrac-
tive slogans such as ‘Get Operated and go home’, ‘No re-
striction of food’, ‘No bed rest’, and ‘No stitches to be
removed’ etc., etc. It was alleged that the guidelines
required a minimal institutional post operative care for few
days under constant competent medical supervision and that
in the present case the patients were allowed to go back
immediately after the operations. Dr. Sahay’s affidavit, in
a way, does not deny this kind of propaganda or lack of
249
institutional post-operation care. Indeed, some justifica-
tion is pleaded. Dr. Sahay says in his counter-affidavit:
“It is true that in the modern technique a
cataract operation by Crye-Micro Surgery
System does not require 10 days immobility or
liquid diet and the like, because the modern
sutures securely seal the operation incision
and make it water tight. The sutures are
seldom removed–and the patient is, in normal
cases fit enough to move about within few
hours of the operation. The Khurja Camp opera-
tions were conducted between the hours of
about 11 A.M. to 6 P.M. with half an hour’s
break. The 9 operation tables for three sur-
geons gave ample room and time for pre-opera-
tion steps and post-operative procedures.”
How far the lack of intensive post operative institu-
tional care contributed to the infection or the aggravation
of its effects is a matter which cannot be decided in these
proceedings. These are technical matters for professional
medical assessments. But the guidelines prescribed by Gov-
ernment do not prima-facie, seem to encourage such compla-
cence in regard to the imperatives of post operative care.
7. The problems of the Ophthalmic Health Status of the
Indian citizen are of a dimension causing an under-standable
concern. The very large number of cases of impairment of
visual acuity in the country needs the purposeful involve-
ment of voluntary social organisations so as to provide an
augmented, broad-based, participatory medi-care for the
general improvement of the tone of ophthalmic health in the
country. Government of India, evolved a comprehensive policy
and programme for control of blindness, which, amongst other
things, envisaged a programme for the promotion of eye-care
through ‘eye-camps’ organised by social and voluntary organ-
isations and to provide financial assistance to them.
Our attention was drawn to the circular No. T.
12011/4/82/ OPTH dated 13.10.1982 issued by the Ministry of
Health and Family Welfare to all the States and Union Terri-
tories, laying down certain norms and guidelines for the
conduct of such ‘eye-camps’. A copy of that circular is
annexure ‘R-1’ to the counter-affidavit dated 10.1.1987
filed on behalf of the State of U.P. Pursuant thereto, on
18.4.1984 State Government issued appropriate directions to
its officers and authorities for strict compliance with the
guidelines issued by the Central Government. It is on the
basis of these guidelines that permis-
250
sion was accorded to the Lions Club to conduct the eye-camp.
The permission granted by Chief Medical Officer, Buland
Shahar on 21.4. 1986 says:
“The Lions Club, Pottery Town,
Institute/organisation is permitted to hold
free eye camps applied with the specific
condition that the camps will be organised in
rural areas and supervised by Senior Ophthal-
mic Surgeon & the operation will be performed
by the qualified Ophtalmic surgeon and staff
and that competent ophthalmic Surgeon(s)
would remain at the camp site throughout the
duration of the camp till the last patient is
discharged.”
8. Though the events ,at the eye-camp raise several
questions of interest on the law as to professional-negli-
gence, we do not want to be understood as intending to
record any findings on the conduct of Dr. R.M. Sahay and his
team or the officers of U.P. Government who granted permis-
sion for the eye camp and who, allegedly, did not discharge
their duties implicit in the guidelines issued by Govern-
ment. A mistake by a medical practitioner which no reasona-
bly competent and a careful practitioner would have commit-
ted is a negligent one. One of the questions that might
arise in the appropriate forum is whether the doctors,
judged by the circumstances in which they were working, made
a mistake and if so whether such a mistake was negligent.
A vast amount of legal literature concerns the concept
of ‘reasonable man’ in the Law of Torts. To some, like Sir
Allen Herbert, he is “never a woman”; to some others ‘an
odious and insufferable creature who never makes a mistake’;
and according to Lord Radcliff the parties would become
disembodied spirits in whose place arises the idea of a
reasonable man as the “anthropomorphic conception of jus-
tice.”
9. But the law recognises the dangers which are inherent
in surgical operations. Mistakes will occur on occasions
despite the exercise of reasonable skill and care. Jackson
and Powell on ‘Professional Negligence’, (1982 Edn.) say:
” ….. In White v. Board of Governors of
Westminister Hospital, a surgeon accidentally
cut the retina during an operation on the
plaintiff’s right eye. As a result the eye
became useless and had to be removed. Thompson
J acquitted the surgeon of any negligence. He
was working
251
within a very few millimeters and exercised
due skill, care and judgment …… “
(Page 232)
But, in a case where the plaintiff developed meningitis
as a result of some infection in the apparatus used in the
operation it was held that there must have been some negli-
gence by the hospital staff for which the hospital authority
was responsible. (ibid para 6.53) But where the operation is
a race against time, the Court will make greater allowance
for mistake on the part of the surgeon or his assistants,
taking into account the ‘Risk-benefit’ test. In Dr. Laxman
Balakrishna Joshi v. Trimback Bapu Godbola, A.I.R. 1969 S.C.
128, Para 11, this Court held:
.lm
“The duties which a doctor owes to his patient are clear. A
person who holds himself out ready to give medical advice
and treatment impliedly undertakes that he is possessed of
skill and knowledge for the purpose. Such a person when
consulted by a patient owes him certain duties, viz., a duty
of care in deciding whether to undertake the case, a duty of
care in deciding what treatment to give or a duty of care in
the administration of that treatment. A breach of any of
those duties gives a right of action for negligence to the
patient. The practitioner must bring to his task a reasona-
ble degree of skill and knowledge and must exercise a rea-
sonable degree of care. Neither the very highest nor a very
low degree of care and competence judged in the light of the
particular circumstances of each case is what the law re-
quires: The doctor no doubt has a discretion in choosing
treatment which he proposes to give to the patient and such
discretion is relatively ampler in case of emergency ……
”
Street on Torts (1983) (7th edn.) suggests that doctrine
of Res Ipso Loquitur is attracted:
” ….. where an unexplained accident occurs
from a thing under the control of the defend-
ant, and medical or other experts evidence
shows that such accidents would not happen if
proper care were used, there is at least
evidence of negligence for a jury.”
(P. 126)
Charlsworth & Percy on ‘Negligence’ refer to a case where a
252
woman was placed in the same ward with another suspected of,
and later found to be suffering from, puerperaI fever and as
a result she got puerperal fever herself. The doctor was
held negligent in not isolating her when the other case was
suspected and in not taking steps to prevent her from being
infected.
(See P. 546).
The explanation of the doctors appears to be that the
infection occurred despite all precaution. Though it is not
said so in so many words, the drift of the explanation is
that the saline, used to irrigate the eyes during surgery to
maintain turgidity of the operational surface, which was
purchased from a reputed manufacturer might be the source of
the contamination. If that be so, the question of the li-
ability of the manufacturer for what is called “product-
liability” and the further question whether in such cases of
mass-use, a pre-test for safety and purity of the article
was necessary and whether failure to do so would be action-
able. These questions are necessarily to be answered on
evidence. In these proceedings neither do we have full
evidence nor does the scope of the proceedings permit such
findings to be recorded conclusively.
10. The aspects to which the present proceed-
ings are confined are:
(a) Whether the Guidelines prescribing norms
and conditions for the conduct of ‘eye-camps’
are sufficiently comprehensive to ensure the
protection of the patients who are generally
drawn from the poorer and less affluent sec-
tion of society or whether any further guide-
lines would require to be evolved?
(b) What relief, monitary or otherwise, should
be afforded to those who have suffered?
Re: Point (a):
11. After the institution of these proceedings Central
Government, in the wake of reports of mishaps in ‘Eye-
Camps’, constituted a Committee under the Chairmanship of
the Union Health Minister with six State Health Ministers
and four experts as members to re-examine and update the
existing guidelines or evolve fresh ones. As a result of the
deliberations of the said Committee and pursuant to its
recommendations, the guidelines for conduct of eye-camps
earlier issued have been updated and revised. A copy of the
Revised Guidelines issued on
253
9.2. 1988 by the Ministry of Health & Family Welfare vide
their No. T. 12019/41/86 OPTH (Pt II) dated 9.2. 1988, is
filed before the Court. We have perused these guidelines
which are sent to all the States for implementation.
The Indian Medical Council, after its impleadment in
these proceedings also constituted a sub-committee with Dr.
P. Shiva Reddy and other members. The Committee deliberated
on the issue and its recommendations in regard to the norms
for the conduct and management of eye-camps have been filed
before this Court. We place record our appreciation of the
assistance rendered by the Council.
12. We have examined the revised guidelines issued on
9.2. 1988 by the Union Government and the recommendation of
the subcommittee of the Indian Medical Council. The two sets
of norms though evolved independently, substantially cover
all the important areas. We think that the Revised norms
issued by the Union Government on 9.2.1988 arrived at after
a careful study of all aspects of the problem are quite
comprehensive. However, we venture to suggest that some
points made in the Report and Recommendation of the expert
sub-committee of the Indian Medical Council may be consid-
ered by the Union Government for incorporation in their
Revised Guidelines dated 9.2.1988. The prescriptions re-
ferred to by the said sub-committee of the Indian Medical
Council at pages 4,5 and 10 respectively, of the report are
these:
“Staff: The operations in the camp should only
be performed by qualified, experienced Oph-
thalmic Surgeons registered with Medical
Council of India or any State Medical Council.
The camp should not be used as a training
ground for post-graduate students, and opera-
tive work should not be entrusted to post-
graduate students.”
“There should be a pathologist to examine
Urine, blood,
sugar etc.
It is preferable to have a Dentist to check
the teeth for sepsis and a Physician for
general medical check-up.”
“Midication:
(a) All medicines to be used should be of
standard quality duly verified by the doctor
in-charge of the camp.”
254
These aspects are generally covered in the Government’s
Revised Guidelines dated 9.2.1988. But, for the sake of
special emphasis keeping their importance in view the above
aspects stressed in the Report of the Sub-committee of the
Indian Medical Council may be considered for incorporation
in the Revised Guidelines of 9th February, 1988. We direct
accordingly.
’13. The necessity of maintenance of the highest stand-
ards of a septic and sterile conditions at places where
Ophthalmic surgery–or any surgery–is conducted cannot be
over-emphasised. It is not merely on the formulation of the
theoretical standards but really on the professional commit-
ment with which the prescriptions are implemented that the
ultimate result rests. Government, States and Union, incur
enormous expenditure of public money on health care, But,
the standards of cleanliness and hygiene in public hospitals
unfortunately, leave greatly to be desired. The maintenance
of steriles, aseptic conditions in hospitals to prevent
cross-infections should be ordinary, routine and minimal
incidents of maintenance of hospitals. Purity of the drugs
and medicines intended for man-use would have to be ensued
by prior tests and inspection. But, owing to a general air
of cynical irreverence towards values that has, unfortunate-
ly, developed and to the mood of complacence with the con-
tinuing deterioration of standards, the very concept of
standards and the imperatives of their observance tend to be
impaired. This is a disturbing feature. The remedy lies in a
ruthless adherence to the virtue of method and laying down
practical procedures in the minutes of detail and by exact-
ing-not merely expecting–strict adherence to these proce-
dures.
14. On point (a), we think that the Revised guidelines
dated 9.2.1988, with the suggested modifications, can be
held to be satisfactory.
15. Re: Point (b):
Pursuant to earlier orders of this Court, each of the
victims had been paid a sum of Rs.5,000.00 by the State
Government by way of interim relief. Shri Ranji Thomas,
learned Counsel for the petitioners, submitted that this was
a wholly avoidable mishap and is entirely the result of the
composite negligence on the part of the surgical team and
the authorities of the U.P. Government, who failed to ensure
obedience to the norms. Learned counsel also sought to rest
the right of the victims for damages on the footing that the
persons who organised the ‘eye-camp’ were acting pursuant to
and under the
255
authority of Government and that on the doctrine of the
State action the activity must be reckoned as that of the
State itself which must, accordingly be held vicariously
liable. In regard to the quantum of relief, learned counsel
submitted that the unfortunate victims had suffered irre-
versible damage of the eyes which has rendered them wholly
incapacitated.
16. We are afraid in the circumstances of this case, the
factual foundations laid before the Court and the limited
scope of the proceedings no appeal could be made to the
doctrine of State action. Shri Yogeshwar Prasad, learned
Senior Counsel appearing for the State of Uttar Pradesh,
submitted that the State would approach the matter not with
the spirit of a litigant in any adversy action but would
look upon the proceedings as a participatory exploration for
relief to the victims. He further submitted that the State
would indeed, be willing to render help to the victims
within the constraints of its resources.
Indeed, the factual foundations requisite for establish-
ing the proximate causal–connection for the injury has yet
to be established conclusively. These matters would have to
be gone into in the criminal and other proceedings that may
be pending or in the contemplation of the Government.
However, we think that on humanitarian consideration,
the victims should be afforded some monitary relief by the
State Government. We direct that in addition to the sum of
Rs.5,000, already paid by way of interim relief, the State
Government shall pay a further sum of Rs. 12,500 to each to
the victims. The victims entitled to receive the additional
payment shall be the same as those who had the benefit of
the interim relief of Rs.5,000. The amount shall be deposit-
ed, as was done in the matter of distribution of interim
relief, with the District Judge who shall arrange to dis-
tribute the same in accordance with the procedure adopted at
the time of administration of the interim relief. The depos-
it shall be made within two months from today and the Dis-
trict Judge shall ensure distribution within the next two
months.
17. We further direct that, additionally, if any of the
Victims are, otherwise, eligible for any benefit of pension
under any of the existing schemes now in force in the State,
their cases shall be considered for such benefit. The Legal
Aid and Advice Board of U.P. State shall take-up this issue
and process the claims of the victims for such other bene-
fits under any of the existing Government schemes providing
for aid to the aged, the disabled, and the destitute, sub-
ject to the condi-
256
tion that the victims otherwise satisfy the conditions of
those schemes.
18. We place on record the services rendered by the
petitioners in espousing the cause of these unfortunate
victims and prosecuting it with diligence. We direct the
State of U.P. to pay their costs which is quantified at
Rs.5,000. The Writ Petition is disposed of accordingly.
Y.L. Petition disposed
of.
257