{"id":261821,"date":"1989-05-12T00:00:00","date_gmt":"1989-05-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-s-mittal-ors-vs-state-of-u-p-ors-on-12-may-1989"},"modified":"2018-01-18T04:30:45","modified_gmt":"2018-01-17T23:00:45","slug":"a-s-mittal-ors-vs-state-of-u-p-ors-on-12-may-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-s-mittal-ors-vs-state-of-u-p-ors-on-12-may-1989","title":{"rendered":"A.S. Mittal & Ors vs State Of U.P. & Ors on 12 May, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
A.S. Mittal & Ors vs State Of U.P. & Ors on 12 May, 1989<\/div>\n
Equivalent citations: 1989 AIR 1570, 1989 SCR (3) 241<\/div>\n
Author: M Rangnath<\/div>\n
Bench: Misra Rangnath<\/div>\n
           PETITIONER:\nA.S. MITTAL & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P. & ORS.\n\nDATE OF JUDGMENT12\/05\/1989\n\nBENCH:\nMISRA RANGNATH\nBENCH:\nMISRA RANGNATH\nVENKATACHALLIAH, M.N. (J)\n\nCITATION:\n 1989 AIR 1570\t\t  1989 SCR  (3) 241\n 1989 SCC  (3) 223\t  JT 1989 (2)\t419\n 1989 SCALE  (1)1535\n\n\nACT:\n    Article 32--\"<\/a>Eye Camp\"--Conducted--Several people  oper-\nated  for cataract--Many becoming totally blind in  operated\neyes--Victims granted monetary relief payment on  humanitar-\nian  considerations ordered by Court--Necessity\t for  strict\ncompliance with guidelines issued by Government for  conduct\nof eye camps--Emphasised-Suggestion to the Union to incorpo-\nrate  some  recommendations noted in the  judgment  made  by\nExpert\tSub--Committee of the Indian Medical Council in\t the\nRevised Guidelines.\n\n\n\nHEADNOTE:\n    Lions Club. Pottery Town, Khurja (U.P.) actuated by\t the\ndesire to provide relief and facilities of opthalmic  surgi-\ncal  services particularly to the persons residing in  rural\nareas,\tsuffering from eye-troubles, arranged and opened  an\n\"Eye  Camp\" at Khurja after obtaining  necessary  permission\nfrom  the Chief Medical Officer, Buland Sahar. In this\tcon-\nnection, the Club invited Dr. R.M. Sahay of the Sahay Hospi-\ntal  at Jaipur and team of Doctors to do the  surgical\tjob.\nThe  Club  published propaganda literature  with  attractive\nslogans,  e.g., 'Get operated and go home', 'No\t restriction\non food'. 'No bed rest' and 'No stitches to be removed'.  In\nresponse thereto substantial number of patients visited\t the\nCamp.\n    Dr.\t Sahay arrived in Khurja on 21.4.1986  and  examined\nabout  122  patients. One hundred and  eight  patients\twere\noperated  upon,\t 88 of them for cataracts.  Dr.\t Sahay\tleft\nKhurja\tthat evening for Moradabad where he was schedule  to\nconduct another similar Eye Camp.\n    It is unfortunate that the project which was opened\t for\nthe good of the suffering people, proved a disastrous  medi-\ncal mis-adventure, as the operated eyes of the patients were\nirreversibly damaged, owing to a post-operative infection of\nthe intra Ocular Cavities of the operated eyes. and the eyes\nwere completely damaged. Similar mishap happened at  Morada-\nbad  also though on a lesser scale, the number\tof  affected\npersons\t being 15 only. To remove the infection that  caused\nthis damage. Doctors gave the necessary treatment but to  no\navail.\n242\n    In\torder to find out the causes of this  mishap,  i.e..\nthe  source of infection. the Government  appointed  Inquiry\nCommittee. reports whereof were placed before the Court\t for\nfavour of perusal.\n    Two\t social\t activists,  Shri A.S. Mittal  and  Shri  Om\nPrakash Tapas have filed these Writ Petition in the form  of\na Public Interest Litigation.\n    The Petitioners have made serious allegations about\t the\nvery  bona  fides behind the sponsoring of  iII-fated  'eye-\ncamp'  and  have alleged monetary gains on the part  of\t the\nsponsors but the Court did not find any material to substan-\ntiate  the said allegation. The petitioners prayed that\t (i)\nthe victims of this medical mishap be given expert rehabili-\ntatory treatment and appropriate compensation, (ii) that the\nGovernment  do\tconduct a thorough investigation as  to\t the\nconditions  which rendered a medical misadventure of such  a\nscale  possible\t and  evolve proper  guidelines\t which\twill\nprevent recurrence of such tragedies and. (iii) that  appro-\npriate legal action be instituted against Dr. Sahay and\t his\nteam and other Government officials concerned.\n    Pursuant to the reports of the Inquiries conducted\tinto\nthe  causes  of\t mishap. penal\taction\thad  been  initiated\nagainst Dr. Sahay & others.\nThe Court considered the following aspects of these proceed-\nings;\n    (a) Whether the Guidelines prescribing norms and  condi-\ntions  for the conduct of \"Eye Camps\" are sufflciently\tcom-\nprehensive to ensure the protection of the patients who\t are\ngenerally  drawn from the poor and less affluent section  of\nthe  society or whether any further guidelines are  required\nto be evolved.\n    (b) What relief, monetary or otherwise should be afford-\ned to those who have suffered?\nDisposing of the Writ Petition, this Court,\n    HELD:  Modern  techniques in  opthalmic  surgery  render\ncataract  a  minor operation. A cataract affected  eye\twhen\nproperly  operated Is expected to become normal. The  opera-\ntion Is meant to remove an obstruction to vision and  resto-\nration\tof  normal eyesight, This Implies that the  eyes  of\npatients selected for operation has the potential for resto-\nration\tof  sight.  In the Instant case,  they\thave  become\ntotally blind In the operated eyes, [247H; 248A-B]\n243\n    A mistake by a medical practitioner which no  reasonably\ncompetent and careful practitioner would have committed is a\nnegligent one. [250D]\n    One of the questions that might arise in the appropriate\nforum is whether the Doctors judged by the circumstances  in\nwhich  they  were working made a mistake and if\t so  whether\nsuch a mistake was negligent. [250D-E]\n    Law recognises the dangers which are inherent in  surgi-\ncal operation. Mistakes will occur on occasions despite\t the\nexercise of reasonable skill and care. [250G]\nJackson and Powell on Professional Negligence, 1982 Edn.\n    The necessity of the highest standards of aseptic  ster-\nile  conditions\t at places where  opthalmic  surgery-or\t any\nsurgery--is  conducted cannot be over-emphasised. It is\t not\nmerely on the formulation. of the theoretical standards\t but\nreally\ton the professional commitments with which the\tpre-\nscriptions  are implemented that the ultimate result  rests.\n[254B-C]\n    The\t factual foundations requisite for establishing\t the\nproximate  causal  connection for the injury has yet  to  be\nestablished conclusively. On humanitarian consideration, the\nvictims should be afforded some monetary relief by the State\nGovernment. In addition to the sum of Rs.5,000 already\tpaid\nby  way of interim relief, the State Government shall pay  a\nfurther\t sum of Rs. 12,500 to each of the victims. The\tvic-\ntims entitled to receive the additional payment shall be the\nsame  as those who had the benefit of the interim relief  of\nRs.5,000. [255D-F]\n    That  the  Revised Guidelines dated\t 9.2.1988  with\t the\nsuggested  modifications  can be held  to  be  satisfactory.\n[254F]\n    The Court abstained from pronouncing on the question  of\nculpable  rashness or negligence on the part of the  Doctors\nor others against whom separate action is either pending  or\ncontemplated. [246G]\n     Dr.  Laxman Balakrishna Joshi v. Trimbak Bapu  Godbols<\/a>,\nAIR 1969 S.C. 128, Para 11 and Street on Torts, [1983]\t(7th\nEdn.), referred to\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1247 of
\n1986.\n<\/p>\n
244<\/span><\/p>\n
(Under Article 32<\/a> of the Constitution of India).
\nRanji Thomas and T. Sridharan for the Petitioners.
\n    B.P. Beri, B.R. Agarwala, Miss Sushma Manchanda, Miss A.
\nSubhashini, B.D. Sharma, R.S. Yadav, Yogeshwar Prasad,\tMrs.
\nS. Dikshit, H.K. Puri and P. Paremeshwaran for the  Respond-
\nents.\n<\/p>\n
The following Order of the Court was delivered:
\nORDER
\n    The\t facts\tof this case are  indeed,  distressing.\t The
\nLions Club, Pottery Town at Khurja in Uttar Pradesh arranged
\nand  conducted, as part of its social service programme,  an
\n“Eye-Camp” intended to extend facilities of expert  Ophthal-
\nmic surgical services to the residents of the town. The Club
\ninvited Dr. R.M. Sahay of the Sahay Hospital, Jaipur and his
\nteam of doctors to offer the surgical services. The Camp was
\narranged in ‘Aggarwal Dharamshala’ at Novelty Road,  Khurja.
\nDr.  R.M.  Sahay and his team of  doctors  and\tpara-medical
\nstaff,\twho arrived in Khurja on 21st April, 1986,  examined
\nabout  122  patients. One hundred and  eight  patients\twere
\noperated  upon,\t 88  of them for Cataract  which,  with\t the
\nmodern\tadvances  in  Ophthalmic Surgery,  is  considered  a
\nrelatively minor and low-risk surgery. Dr. Sahay left Khurja
\nthat evening for Moradabad where he was scheduled to conduct
\nsimilar operations at another “Eye-Camp.”\n<\/p>\n
    But the whole programme at Khurja, however laudable\t the
\nintentions with which it might have been launched, proved  a
\ndisastrous medical misadventure for the patients. The  oper-
\nated-eyes  of the patients were irreversibly damaged,  owing
\nto  a post-operative infection of the Intra Ocular  Cavities
\nof the operated eyes. The doctors present at the Camp got in
\ntouch  with  Dr. Sahay at Moradabad and\t administered  anti-
\nbiotic\tmedication, both oral and local, for the  infection.
\nDr.  Sahay returned on the 24th April and undertook  himself
\nsome ameliorative treatment. But the operated eyes had\tbeen
\ndamaged\t completely.  Similar mishap, but  on  lesser  scale
\naffecting  some 15 patients, repeated itself  at  Moradabad.
\nSome  of the victims were later sent to and treated  at\t Dr.
\nSahay’s\t Hospital  at Jaipur. But their\t condition  did\t not
\nimprove.\n<\/p>\n
     It is now undisputed that this terrible medical  mishap
\nwas  due to common contaminating source. The  suggestion  in
\nthe Report of the
\n245<\/span>
\nenquiries  that\t ensued\t is that, in  all  probability,\t the
\nsource of the infection, referred to as E coli infection  of
\nthe intra ocular cavity, was the “normal saline” used on the
\neyes  at  the  time of surgery. Dr. Sahay  who\thad  himself
\nbrought\t all medicines and surgical instruments for  use  at
\nthe Camp claims to have purchased the Saline from a  certain
\nM\/s. Mehtaad Company, Jaipur on 22.3.1986 under Invoice\t No.
\n1533.\n<\/p>\n
    2. The matter was brought before this Court in the\tform
\nof  a  Public Interest Litigation under Article\t 32<\/a>  by\t two
\nsocial\tactivists,  Shri  A.S. Mittal and  Shri\t Om  Prakash
\nTapas, acting on behalf of an organisation called ‘Union for
\nWelfare and Human Rights’. Originally, the four\t respondents
\nwere  the State of U.P., Dr. R.M. Sahay, the  Chief  Medical
\nOfficer, Buland Sahar District (U.P.) and the Lions Club  of
\nPottery Town, Khurja. However, this Court by its order dated
\n26.9.1986 directed the Indian Medical Council and the  Union
\nof India to be impleaded as parties to the proceedings.\t All
\nthe respondents have filed their respective  counter-affida-
\nvits.\n<\/p>\n
    In the Writ Petition, the petitioners have made  serious
\nallegations about the very bona fides of, and the  intention
\nbehind, the sponsoring of the iII-fated ‘eye-camp’ and\thave
\nalleged\t that motives of monetary gains by way of State\t and
\nInternational  subsidies. But no material is  placed  before
\nthe  Court to substantiate this allegation. The\t prayers  in
\nthe  writ  petition are that: the victims  of  this  medical
\nmishap\tbe given expert rehabilitatory treatment and  appro-
\npriate\tcompensation; that Government do conduct a  thorough
\ninvestigation as to the conditions which rendered a  medical
\nmisadventure  of  such a scale possible\t and  evolve  proper
\nguide-lines which will prevent recurrence of such tragedies;
\nand that appropriate legal action be instituted against\t Dr.
\nR.M.  Sahay  and his team and also against officers  of\t the
\nGovernment who, according to allegations, committed  serious
\nbreaches  of duty in sanctioning permission for the  conduct
\nof the ‘eye-camp’ without ensuring a strict compliance\twith
\nthe  conditions prescribed in the Guidelines  prescribed  by
\nthe  Government in that behalf and in not  effectively\tdis-
\ncharging  the  duties  enjoined upon them  to  over-see\t the
\nsatisfactory and safe functioning of the camp.\n<\/p>\n
    3. At the directions of the Government of Uttar Pradesh,
\nthe  Deputy Director (Eye Treatment). conducted\t an  inquiry
\ninto  the  happenings  and his\treport\tand  recommendations
\nsubmitted to the Government are produced in the proceedings.
\nSimilarly,  the inquiry report dated 8.6.1986  conducted  by
\nShri Shatrughan Singh, Sub-Divisional Magistrate, Khurja  as
\nto the incident, are also before the Court. We
\n246<\/span>
\nhave  perused these reports and the  counter-affidavits\t and
\nheard learned counsel.\n<\/p>\n
    4.\tSo  far\t as the grievance in the  Writ\tPetition  of
\nprosecutorial inaction on the part of the Government and the
\nneed  to  direct Government to initiate\t appropriate  action
\nagainst\t those responsible for the tragedy is concerned,  it
\nwas submitted before us that persuant to the results of\t the
\ninquiries  conducted by the Deputy Director (Eye  Treatment)
\nand  the  Sub-Divisional Magistrate,  appropriate  follow-up
\naction\tis  contemplated by the Government  against  persons
\nconcerned and that, indeed, a criminal case has been  regis-
\ntered against Dr. R.M. Sahay under Section 338<\/a> of the Indian
\nPenal Code.\n<\/p>\n
    It was, however, submitted on behalf of Dr. R.M.  Sahay,
\nRespondent  No. 2, that we should abstain from\tsaying\tany-
\nthing  which might tend to pre-judge merits of the  prosecu-
\ntion. In his counteraffadivit, Dr. Sahay says:\n<\/p>\n
\t      “The  police has registered a case u\/s 338  of
\n\t      the  Indian Penal Code<\/a>, against the  Answering
\n\t      Respondent, and he has been admitted to  bail.
\n\t      Any process by which the answering  respondent
\n\t      would  be compelled to disclose,\tin  advance,
\n\t      his defence at the criminal trial by  replying
\n\t      to  specific allegations in the Writ  Petition
\n\t      would  be violative of Art. 20(3)<\/a> of the\tCon-
\n\t      stitution\t of India, in so far as it  concerns
\n\t      the Answering Respondent.”\n<\/p><\/blockquote>\n
    Referring  to the limited scope of the present  proceed-\n<\/p><\/blockquote>\n
ings, Dr. Sahay expresses the confidence:\n<\/p>\n
\t      ”\t ……\t that in view of the noble objective
\n\t      of  this kind litigation, it will not  in\t any
\n\t      manner  be  prejudicial to the  answering\t re-
\n\t      spondent.”<\/p><\/blockquote>\n
    We\tthink we should accept the submission of the  doctor
\nand  should  abstain  from pronouncing on  the\tquestion  of
\nculpable  rashness or negligence on the part of the  doctors
\nor others against whom separate action is either pending  or
\ncontemplated.\n<\/p>\n
    5.\tBut  there are some assumptions\t and  Statements  in
\ncounteraffidavit of Dr. Sahay that cannot be allowed to pass
\nwithout comment. It is undisputed that out of those operated
\nat Khurja, at least 84 persons suffered permanent damage  of
\nthe operated eyes. It is said
\n247<\/span>
\nthat about 15 similar cases occurred at the Moradabad  ‘Eye-
\nCamp’.\tIndeed, in the course of his counter-affidavit,\t Dr.
\nSahay  admitted\t the  unfortunate event which  he  called  a
\n“Mishap”:\n<\/p>\n
\t      “The medical mishap at the Khurja Camp is\t the
\n\t      only  one\t he has encountered  in\t his  entire
\n\t      extensive experience.”\n<\/p><\/blockquote>\n
\t      “Despite\tall  possible  care  MISHAPS  cannot
\n\t      always be avoided in human errors because\t the
\n\t      error  of\t one link in the  entire  chain\t may
\n\t      sometime result in a total failure.”
\n\t\t  But  the  doctor’s  description  of\twhat
\n\t      happened\tto  the victims is  somewhat  of  an
\n\t      over-simplification.  As to  the.\t devastation
\n\t      the almost universal post-operative  infection
\n\t      left behind in its trial, the doctor says:
\n\t      “It  is  unfortunate that despite\t every\tcare
\n\t      taken  by the Answering Respondent   and\t his
\n\t      associates  and assistants a large  number  of
\n\t      patients could not regain their vision in\t the
\n\t      Khurja Camp.”\n<\/p><\/blockquote>\n
\t      “It  is  extremely unfortunate  that  some  84
\n\t      patients’ vision could not be restored despite
\n\t      every care bestowed by the answering  respond-
\n\t      ent and his associates and assistants.”
\n\t      “The  number  of\tpatients  operated  upon  at
\n\t      Moradabad Camp for cataract were about 380 and
\n\t      the  vision of about 10 of them could  not  be
\n\t      restored.\t A small percentage of\tfailures  is
\n\t      considered normal\t …..\t“<\/p><\/blockquote>\n
\t      (Emphasis supplied)
\n    We\tare afraid, the doctor may not be justified in\tthis
\ndescription  of the large-scale and calamitous\teffects\t the
\noperation  had\ton the hapless victims. It  is,\t perhaps,  a
\neuphemism  to  call the incident as one where “some  84\t pa-
\ntients’\t vision could not be restored.” These are  not\tmere
\ncases of eye-sight of the patients not having been  restored
\nin the sense that the surgical operations conducted on\tthem
\ndid not yield the desired result; or that no positive  bene-
\nfit was derived by them from the surgery. But the picture is
\nentirely  different. It is not merely that  the\t unfortunate
\npatients  did  not derive any benefit from the\tsurgery\t but
\nwere  greatly  worse-of than they were before  the  surgery,
\nowing  to  the post-operative intra  ocular  infection\tthat
\ndamaged the operated eyes beyond redemption. Even  according
\nto Dr. Sahay the modern techni-\n<\/p>\n
248<\/span><\/p>\n
ques in opthalmic surgery render cataract a minor operation.
\nA  cataract affected eye when properly operated is  expected
\nto  become normal. The operation is meant to remove  an\t ob-
\nstruction  to  vision and restoration of normal\t eye  sight.
\nThis  implies that the eyes of patients selected for  opera-
\ntion  had  the potential for restoration of  sight.  In\t the
\npresent cases, they have become totally blind in the operat-
\ned eyes.\n<\/p>\n
    Apart altogether from the causal-connection between\t the
\nwidespread infection and medication or surgical\t procedures,
\nas the case may be, applied or employed, it is really undis-
\nputed  that  such a general  and  widespread  post-operative
\ninfection did occur. Referring to the medical management  of
\nthe emerging crisis, Dr. Sahay himself says:\n<\/p>\n
\t      “It  may be mentioned that on the\t morning  of
\n\t      22nd  April,  1986, Dr. R. Sekhri\t opened\t the
\n\t      bandage  and suspected intra ocular  infection
\n\t      and  therefore commenced antibiotic  treatment
\n\t      both  local and oral. On the 22nd\t April,\t Dr.
\n\t      Sekhri  reached Moradabad\t for  consultations.
\n\t      The  Answering  Respondent  approved  of\t the
\n\t      antibiotic  medicines and sent Dr. M.  Punjabi
\n\t      with  additional\tsupplies  of  medicines\t  of
\n\t      Khurja.  On 23.4.1986 both Dr. Sekhri and\t Dr.
\n\t      M.  Punjabi  gave anterior  chamber  wash\t and
\n\t      antibiotic  medicines. At about  midnight\t the
\n\t      answering respondent rushed by road to  Khurja
\n\t      without  any  consideration for  his  personal
\n\t      comfort and commenced attending the  patients.
\n\t      He washed anterior chambers performed  vitrec-
\n\t      tomy (removing the infected part) and adminis-
\n\t      tered pain relieving medicines. The  petition-
\n\t      ers  have\t inexactly described the  doings  as
\n\t      operation, sedation and removal of Cornea. All
\n\t      this  was done in the same room in  which\t the
\n\t      earlier operations were performed.”<\/p><\/blockquote>\n
    6. One of the points brought out in the petition is that
\nthe  propaganda\t literature published by the Lions  Club  in
\nrelation  to  the camp was that allurements,  prohibited  by
\nmedical\t ethics, were held out to the patients with  attrac-
\ntive  slogans  such as ‘Get Operated and go home’,  ‘No\t re-
\nstriction  of food’, ‘No bed rest’, and ‘No stitches  to  be
\nremoved’  etc.,\t etc.  It was alleged  that  the  guidelines
\nrequired a minimal institutional post operative care for few
\ndays  under constant competent medical supervision and\tthat
\nin  the\t present case the patients were allowed to  go\tback
\nimmediately after the operations. Dr. Sahay’s affidavit,  in
\na way, does not deny this kind of propaganda or lack of
\n249<\/span>
\ninstitutional  post-operation care. Indeed, some  justifica-
\ntion is pleaded. Dr. Sahay says in his counter-affidavit:\n<\/p>\n
\t      “It  is  true that in the modern\ttechnique  a
\n\t      cataract\t operation  by\tCrye-Micro   Surgery
\n\t      System does not require 10 days immobility  or
\n\t      liquid  diet and the like, because the  modern
\n\t      sutures  securely seal the operation  incision
\n\t      and  make\t it  water tight.  The\tsutures\t are
\n\t      seldom removed–and the patient is, in  normal
\n\t      cases  fit  enough to move  about\t within\t few
\n\t      hours of the operation. The Khurja Camp opera-
\n\t      tions  were  conducted between  the  hours  of
\n\t      about  11 A.M. to 6 P.M. with half  an  hour’s
\n\t      break.  The 9 operation tables for three\tsur-
\n\t      geons gave ample room and time for  pre-opera-
\n\t      tion steps and post-operative procedures.”
\n    How\t far the lack of intensive post\t operative  institu-\n<\/p><\/blockquote>\n
tional care contributed to the infection or the\t aggravation
\nof its effects is a matter which cannot be decided in  these
\nproceedings.  These are technical matters  for\tprofessional
\nmedical\t assessments. But the guidelines prescribed by\tGov-
\nernment\t do not prima-facie, seem to encourage such  compla-
\ncence in regard to the imperatives of post operative care.\n<\/p>\n
    7.\tThe problems of the Ophthalmic Health Status of\t the
\nIndian citizen are of a dimension causing an under-standable
\nconcern.  The  very large number of cases of  impairment  of
\nvisual\tacuity in the country needs the purposeful  involve-
\nment  of voluntary social organisations so as to provide  an
\naugmented,  broad-based,  participatory\t medi-care  for\t the
\ngeneral improvement of the tone of ophthalmic health in\t the
\ncountry. Government of India, evolved a comprehensive policy
\nand programme for control of blindness, which, amongst other
\nthings, envisaged a programme for the promotion of  eye-care
\nthrough ‘eye-camps’ organised by social and voluntary organ-
\nisations and to provide financial assistance to them.
\n    Our\t  attention  was  drawn\t to  the  circular  No.\t  T.
\n12011\/4\/82\/ OPTH dated 13.10.1982 issued by the Ministry  of
\nHealth and Family Welfare to all the States and Union Terri-
\ntories,\t laying\t down certain norms and guidelines  for\t the
\nconduct\t of  such ‘eye-camps’. A copy of  that\tcircular  is
\nannexure  ‘R-1’\t to the\t counter-affidavit  dated  10.1.1987
\nfiled  on behalf of the State of U.P. Pursuant\tthereto,  on
\n18.4.1984 State Government issued appropriate directions  to
\nits officers and authorities for strict compliance with\t the
\nguidelines  issued by the Central Government. It is  on\t the
\nbasis of these guidelines that permis-\n<\/p>\n
250<\/span><\/p>\n
sion was accorded to the Lions Club to conduct the eye-camp.
\nThe  permission\t granted by Chief  Medical  Officer,  Buland
\nShahar on 21.4. 1986 says:\n<\/p>\n
\t      “The     Lions\t Club,\t   Pottery     Town,
\n\t      Institute\/organisation  is permitted  to\thold
\n\t      free  eye\t camps\tapplied\t with  the  specific
\n\t      condition that the camps will be organised  in
\n\t      rural areas and supervised by Senior  Ophthal-
\n\t      mic Surgeon & the operation will be  performed
\n\t      by the qualified Ophtalmic surgeon  and  staff
\n\t      and   that  competent   ophthalmic  Surgeon(s)
\n\t      would  remain at the camp site throughout\t the
\n\t      duration of the camp till the last patient  is
\n\t      discharged.”\n<\/p>\n
    8.\tThough\tthe events ,at the  eye-camp  raise  several
\nquestions  of interest on the law as to\t professional-negli-
\ngence,\twe  do\tnot want to be understood  as  intending  to
\nrecord any findings on the conduct of Dr. R.M. Sahay and his
\nteam or the officers of U.P. Government who granted  permis-
\nsion for the eye camp and who, allegedly, did not  discharge
\ntheir  duties implicit in the guidelines issued\t by  Govern-
\nment. A mistake by a medical practitioner which no  reasona-
\nbly competent and a careful practitioner would have  commit-
\nted  is\t a negligent one. One of the  questions\t that  might
\narise  in  the\tappropriate forum is  whether  the  doctors,
\njudged by the circumstances in which they were working, made
\na mistake and if so whether such a mistake was negligent.
\n    A  vast amount of legal literature concerns the  concept
\nof  ‘reasonable man’ in the Law of Torts. To some, like\t Sir
\nAllen  Herbert,\t he is “never a woman”; to some\t others\t ‘an
\nodious and insufferable creature who never makes a mistake’;
\nand  according\tto Lord Radcliff the  parties  would  become
\ndisembodied  spirits  in whose place arises the\t idea  of  a
\nreasonable  man as the “anthropomorphic conception  of\tjus-
\ntice.”\n<\/p>\n
    9. But the law recognises the dangers which are inherent
\nin  surgical  operations. Mistakes will occur  on  occasions
\ndespite\t the exercise of reasonable skill and care.  Jackson
\nand Powell on ‘Professional Negligence’, (1982 Edn.) say:\n<\/p>\n
\t      ”\t  …..\t In White v. Board of  Governors  of
\n\t      Westminister Hospital, a surgeon\taccidentally
\n\t      cut  the\tretina during an  operation  on\t the
\n\t      plaintiff’s  right  eye. As a result  the\t eye
\n\t      became useless and had to be removed. Thompson
\n\t      J acquitted the surgeon of any negligence.  He
\n\t      was working
\n\t      251<\/span>
\n\t      within  a very few millimeters  and  exercised
\n\t      due skill, care and judgment  ……  “<\/p><\/blockquote>\n
\t      (Page 232)
\n    But, in a case where the plaintiff developed  meningitis
\nas  a result of some infection in the apparatus used in\t the
\noperation it was held that there must have been some  negli-
\ngence by the hospital staff for which the hospital authority
\nwas responsible. (ibid para 6.53) But where the operation is
\na  race against time, the Court will make greater  allowance
\nfor  mistake on the part of the surgeon or  his\t assistants,
\ntaking\tinto account the ‘Risk-benefit’ test. In Dr.  Laxman
\nBalakrishna Joshi v. Trimback Bapu Godbola<\/a>, A.I.R. 1969 S.C.
\n128, Para 11, this Court held:\n<\/p>\n
.lm
\n“The duties which a doctor owes to his patient are clear.  A
\nperson\twho holds himself out ready to give  medical  advice
\nand  treatment impliedly undertakes that he is possessed  of
\nskill  and  knowledge for the purpose. Such  a\tperson\twhen
\nconsulted by a patient owes him certain duties, viz., a duty
\nof care in deciding whether to undertake the case, a duty of
\ncare in deciding what treatment to give or a duty of care in
\nthe  administration  of that treatment. A breach of  any  of
\nthose  duties gives a right of action for negligence to\t the
\npatient. The practitioner must bring to his task a  reasona-
\nble  degree of skill and knowledge and must exercise a\trea-
\nsonable degree of care. Neither the very highest nor a\tvery
\nlow degree of care and competence judged in the light of the
\nparticular  circumstances of each case is what the  law\t re-
\nquires:\t The  doctor no doubt has a discretion\tin  choosing
\ntreatment which he proposes to give to the patient and\tsuch
\ndiscretion is relatively ampler in case of emergency  ……
\n”\n<\/p>\n
    Street on Torts (1983) (7th edn.) suggests that doctrine
\nof Res Ipso Loquitur is attracted:\n<\/p>\n
\t      ”\t …..\twhere an unexplained accident occurs
\n\t      from a thing under the control of the  defend-
\n\t      ant,  and\t medical or other  experts  evidence
\n\t      shows that such accidents would not happen  if
\n\t      proper  care  were  used, there  is  at  least
\n\t      evidence of negligence for a jury.”<\/p><\/blockquote>\n
\t      (P. 126)
\nCharlsworth & Percy on ‘Negligence’ refer to a case where a
\n252<\/span>
\nwoman was placed in the same ward with another suspected of,
\nand later found to be suffering from, puerperaI fever and as
\na  result  she got puerperal fever herself. The\t doctor\t was
\nheld negligent in not isolating her when the other case\t was
\nsuspected and in not taking steps to prevent her from  being
\ninfected.\n<\/p>\n
(See P. 546).\n<\/p>\n
    The\t explanation of the doctors appears to be  that\t the
\ninfection occurred despite all precaution. Though it is\t not
\nsaid  so in so many words, the drift of the  explanation  is
\nthat the saline, used to irrigate the eyes during surgery to
\nmaintain  turgidity  of the operational surface,  which\t was
\npurchased from a reputed manufacturer might be the source of
\nthe  contamination. If that be so, the question of  the\t li-
\nability\t of  the manufacturer for what is  called  “product-
\nliability” and the further question whether in such cases of
\nmass-use,  a pre-test for safety and purity of\tthe  article
\nwas necessary and whether failure to do so would be  action-
\nable.  These  questions are necessarily to  be\tanswered  on
\nevidence.  In  these  proceedings neither do  we  have\tfull
\nevidence  nor does the scope of the proceedings permit\tsuch
\nfindings to be recorded conclusively.\n<\/p>\n
\t      10. The aspects to which the present  proceed-
\n\t      ings are confined are:\n<\/p>\n
\t      (a)  Whether the Guidelines prescribing  norms
\n\t      and conditions for the conduct of\t ‘eye-camps’
\n\t      are  sufficiently comprehensive to ensure\t the
\n\t      protection  of the patients who are  generally
\n\t      drawn  from the poorer and less affluent\tsec-
\n\t      tion of society or whether any further  guide-
\n\t      lines would require to be evolved?\n<\/p>\n
\t      (b) What relief, monitary or otherwise, should
\n\t      be afforded to those who have suffered?\n<\/p>\n
\t      Re: Point (a):\n<\/p>\n
    11.\t After the institution of these proceedings  Central
\nGovernment,  in\t the  wake of reports of  mishaps  in  ‘Eye-
\nCamps’,\t constituted a Committee under the  Chairmanship  of
\nthe  Union Health Minister with six State  Health  Ministers
\nand  four  experts as members to re-examine and\t update\t the
\nexisting guidelines or evolve fresh ones. As a result of the
\ndeliberations  of  the said Committee and  pursuant  to\t its
\nrecommendations,  the  guidelines for conduct  of  eye-camps
\nearlier issued have been updated and revised. A copy of\t the
\nRevised Guidelines issued on
\n253<\/span>
\n9.2.  1988 by the Ministry of Health & Family  Welfare\tvide
\ntheir  No. T. 12019\/41\/86 OPTH (Pt II) dated 9.2.  1988,  is
\nfiled  before  the Court. We have perused  these  guidelines
\nwhich are sent to all the States for implementation.
\n    The\t Indian\t Medical Council, after its  impleadment  in
\nthese proceedings also constituted a sub-committee with\t Dr.
\nP. Shiva Reddy and other members. The Committee\t deliberated
\non the issue and its recommendations in regard to the  norms
\nfor the conduct and management of eye-camps have been  filed
\nbefore\tthis Court. We place record our appreciation of\t the
\nassistance rendered by the Council.\n<\/p>\n
    12.\t We have examined the revised guidelines  issued  on
\n9.2. 1988 by the Union Government and the recommendation  of
\nthe subcommittee of the Indian Medical Council. The two sets
\nof  norms though evolved independently, substantially  cover
\nall  the  important areas. We think that the  Revised  norms
\nissued by the Union Government on 9.2.1988 arrived at  after
\na  careful  study of all aspects of the\t problem  are  quite
\ncomprehensive.\tHowever,  we venture to\t suggest  that\tsome
\npoints\tmade in the Report and Recommendation of the  expert
\nsub-committee  of the Indian Medical Council may be  consid-
\nered  by  the Union Government for  incorporation  in  their
\nRevised\t Guidelines  dated 9.2.1988. The  prescriptions\t re-
\nferred\tto by the said sub-committee of the  Indian  Medical
\nCouncil at pages 4,5 and 10 respectively, of the report\t are
\nthese:\n<\/p>\n
\t      “Staff: The operations in the camp should only
\n\t      be  performed by qualified,  experienced\tOph-
\n\t      thalmic\tSurgeons  registered  with   Medical
\n\t      Council of India or any State Medical Council.
\n\t      The  camp\t should not be used  as\t a  training
\n\t      ground for post-graduate students, and  opera-
\n\t      tive  work  should not be entrusted  to  post-
\n\t      graduate students.”\n<\/p><\/blockquote>\n
\t      “There  should  be a  pathologist\t to  examine
\n\t      Urine, blood,
\n\t      sugar etc.
\n\t      It  is preferable to have a Dentist  to  check
\n\t      the  teeth  for  sepsis and  a  Physician\t for
\n\t      general medical check-up.”\n<\/p><\/blockquote>\n
\t      “Midication:\n<\/p><\/blockquote>\n
\t      (a)  All\tmedicines to be used  should  be  of
\n\t      standard\tquality duly verified by the  doctor
\n\t      in-charge of the camp.”\n<\/p><\/blockquote>\n
254<\/span><\/p>\n
These  aspects\tare generally covered  in  the\tGovernment’s
\nRevised\t Guidelines  dated 9.2.1988. But, for  the  sake  of
\nspecial emphasis keeping their importance in view the  above
\naspects\t stressed in the Report of the Sub-committee of\t the
\nIndian\tMedical Council may be considered for  incorporation
\nin  the Revised Guidelines of 9th February, 1988. We  direct
\naccordingly.\n<\/p>\n
    ’13. The necessity of maintenance of the highest  stand-
\nards  of  a septic and sterile conditions  at  places  where
\nOphthalmic  surgery–or any surgery–is conducted cannot  be
\nover-emphasised. It is not merely on the formulation of\t the
\ntheoretical standards but really on the professional commit-
\nment  with which the prescriptions are implemented that\t the
\nultimate  result rests. Government, States and Union,  incur
\nenormous  expenditure of public money on health\t care,\tBut,
\nthe standards of cleanliness and hygiene in public hospitals
\nunfortunately, leave greatly to be desired. The\t maintenance
\nof  steriles,  aseptic conditions in  hospitals\t to  prevent
\ncross-infections  should  be ordinary, routine\tand  minimal
\nincidents  of maintenance of hospitals. Purity of the  drugs
\nand  medicines intended for man-use would have to be  ensued
\nby  prior tests and inspection. But, owing to a general\t air
\nof cynical irreverence towards values that has, unfortunate-
\nly,  developed and to the mood of complacence with the\tcon-
\ntinuing\t deterioration\tof standards, the  very\t concept  of
\nstandards and the imperatives of their observance tend to be
\nimpaired. This is a disturbing feature. The remedy lies in a
\nruthless  adherence to the virtue of method and laying\tdown
\npractical procedures in the minutes of detail and by  exact-
\ning-not\t merely expecting–strict adherence to these  proce-
\ndures.\n<\/p>\n
    14.\t On point (a), we think that the Revised  guidelines
\ndated  9.2.1988,  with the suggested modifications,  can  be
\nheld to be satisfactory.\n<\/p>\n
15. Re: Point (b):\n<\/p>\n
    Pursuant  to earlier orders of this Court, each  of\t the
\nvictims\t had  been paid a sum of Rs.5,000.00  by  the  State
\nGovernment  by\tway of interim relief.\tShri  Ranji  Thomas,
\nlearned Counsel for the petitioners, submitted that this was
\na wholly avoidable mishap and is entirely the result of\t the
\ncomposite  negligence on the part of the surgical  team\t and
\nthe authorities of the U.P. Government, who failed to ensure
\nobedience to the norms. Learned counsel also sought to\trest
\nthe right of the victims for damages on the footing that the
\npersons who organised the ‘eye-camp’ were acting pursuant to
\nand under the
\n255<\/span>
\nauthority  of  Government and that on the  doctrine  of\t the
\nState  action the activity must be reckoned as that  of\t the
\nState  itself  which must, accordingly be  held\t vicariously
\nliable. In regard to the quantum of relief, learned  counsel
\nsubmitted  that the unfortunate victims had  suffered  irre-
\nversible  damage of the eyes which has rendered them  wholly
\nincapacitated.\n<\/p>\n
    16. We are afraid in the circumstances of this case, the
\nfactual\t foundations laid before the Court and\tthe  limited
\nscope  of  the proceedings no appeal could be  made  to\t the
\ndoctrine  of  State action. Shri Yogeshwar  Prasad,  learned
\nSenior\tCounsel\t appearing for the State of  Uttar  Pradesh,
\nsubmitted that the State would approach the matter not\twith
\nthe  spirit  of a litigant in any adversy action  but  would
\nlook upon the proceedings as a participatory exploration for
\nrelief\tto the victims. He further submitted that the  State
\nwould  indeed,\tbe  willing to render help  to\tthe  victims
\nwithin the constraints of its resources.\n<\/p>\n
    Indeed, the factual foundations requisite for establish-
\ning the proximate causal–connection for the injury has\t yet
\nto be established conclusively. These matters would have  to
\nbe gone into in the criminal and other proceedings that\t may
\nbe pending or in the contemplation of the Government.
\n    However,  we think that on\thumanitarian  consideration,
\nthe  victims should be afforded some monitary relief by\t the
\nState  Government. We direct that in addition to the sum  of
\nRs.5,000,  already paid by way of interim relief, the  State
\nGovernment shall pay a further sum of Rs. 12,500 to each  to
\nthe victims. The victims entitled to receive the  additional
\npayment\t shall be the same as those who had the\t benefit  of
\nthe interim relief of Rs.5,000. The amount shall be deposit-
\ned,  as\t was done in the matter of distribution\t of  interim
\nrelief,\t with the District Judge who shall arrange  to\tdis-
\ntribute the same in accordance with the procedure adopted at
\nthe time of administration of the interim relief. The depos-
\nit  shall be made within two months from today and the\tDis-
\ntrict  Judge shall ensure distribution within the  next\t two
\nmonths.\n<\/p>\n
    17. We further direct that, additionally, if any of\t the
\nVictims are, otherwise, eligible for any benefit of  pension
\nunder any of the existing schemes now in force in the State,
\ntheir cases shall be considered for such benefit. The  Legal
\nAid and Advice Board of U.P. State shall take-up this  issue
\nand  process the claims of the victims for such other  bene-
\nfits under any of the existing Government schemes  providing
\nfor  aid to the aged, the disabled, and the destitute,\tsub-
\nject to the condi-\n<\/p>\n
256<\/span><\/p>\n
tion  that the victims otherwise satisfy the  conditions  of
\nthose schemes.\n<\/p>\n
    18.\t We  place on record the services  rendered  by\t the
\npetitioners  in\t espousing the cause  of  these\t unfortunate
\nvictims\t and  prosecuting it with diligence. We\t direct\t the
\nState  of  U.P. to pay their costs which  is  quantified  at
\nRs.5,000. The Writ Petition is disposed of accordingly.\n<\/p>\n
Y.L.\t\t\t\t\t   Petition disposed\nof.\n257<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India A.S. Mittal & Ors vs State Of U.P. & Ors on 12 May, 1989 Equivalent citations: 1989 AIR 1570, 1989 SCR (3) 241 Author: M Rangnath Bench: Misra Rangnath PETITIONER: A.S. MITTAL & ORS. Vs. RESPONDENT: STATE OF U.P. & ORS. DATE OF JUDGMENT12\/05\/1989 BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH VENKATACHALLIAH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-261821","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nA.S. 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