A.S. Mittal
& Ors Vs. State of U.P. & Ors [1989] INSC 189 (12 May 1989)
Misra
Rangnath 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 operated for cataract--Many
becoming totally blind in operated eyes--Victims granted monetary relief
payment on humanitarian considerations ordered by Court--Necessity for strict
compliance with guidelines issued by Government for conduct of eye camps--Emphasised-Suggestion
to the Union to incorporate some recommendations noted in the judgment made by
Expert Sub--Committee of the Indian Medical Council in the Revised Guidelines.
HEAD NOTE:
Lions
Club. Pottery Town, Khurja (U.P.) actuated by the desire to provide relief and
facilities of opthalmic surgical 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 connection, the Club invited Dr. R.M. Sahay
of the Sahay Hospital 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 medical 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 Moradabad 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 'eyecamp' and have alleged monetary gains on the part
of the sponsors but the Court did not find any material to substantiate the
said allegation. The petitioners prayed that
(i) the
victims of this medical mishap be given expert rehabilitatory 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
appropriate 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 proceedings;
(a)
Whether the Guidelines prescribing norms and conditions for the conduct of
"Eye Camps" are sufflciently comprehensive 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 afforded 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
operation Is meant to remove an obstruction to vision and restoration of normal
eyesight, This Implies that the eyes of patients selected for operation has the
potential for restoration 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 surgical
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 sterile 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 prescriptions 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 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.
[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
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
Respondents.
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 Ophthalmic 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 operated-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 antibiotic 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-affidavits.
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
appropriate 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 discharging 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 registered 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 anything which might tend to pre-judge merits of the
prosecution. 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 Constitution of
India, in so far as it concerns the Answering Respondent." Referring to
the limited scope of the present proceedings, 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 respondent." 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 'EyeCamp'. 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 respondent 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 patients' 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 benefit
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 techni248 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 obstruction to vision and restoration of normal
eye sight.
This
implies that the eyes of patients selected for operation had the potential for
restoration of sight. In the present cases, they have become totally blind in the
operated 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 undisputed 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 vitrectomy (removing the infected part) and
administered pain relieving medicines. The petitioners 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 attractive
slogans such as 'Get Operated and go home', 'No restriction 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 justification 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
operations 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
surgeons gave ample room and time for pre-operation steps and post-operative
procedures." How far the lack of intensive post operative institutional
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 Government
do not prima-facie, seem to encourage such complacence 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 involvement 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 organisations 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 Territories, 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 permis250 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 Ophthalmic 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-negligence, 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 permission for the eye camp and who,
allegedly, did not discharge their duties implicit in the guidelines issued by
Government. A mistake by a medical practitioner which no reasonably competent
and a careful practitioner would have committed 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 justice."
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
negligence 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 reasonable degree of skill
and knowledge and must exercise a reasonable 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 requires: 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 defendant, 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 liability of the manufacturer for what is called "productliability"
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 actionable. 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 proceedings 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 section of
society or whether any further guidelines 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 considered by the Union Government for
incorporation in their Revised Guidelines dated 9.2.1988. The prescriptions
referred 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
Ophthalmic 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
operative work should not be entrusted to postgraduate 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 standards 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 commitment 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, unfortunately, developed and to the mood of
complacence with the continuing 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
exacting-not merely expecting--strict adherence to these procedures.
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 irreversible 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 establishing 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 deposited, as was done
in the matter of distribution of interim relief, with the District Judge who
shall arrange to distribute the same in accordance with the procedure adopted
at the time of administration of the interim relief. The deposit shall be made
within two months from today and the District 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 benefits under any of the existing
Government schemes providing for aid to the aged, the disabled, and the
destitute, subject to the condi256 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.
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