7/26/2016

MissPushpaleelavsStateOfKarnatakaAndOtherson17April,1998
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sterilization
theatre

KarnatakaHighCourt

vision

MissPushpaleelavsStateOfKarnatakaAndOtherson17April,1998

rehabilitation

Equivalentcitations:1998(4)KarLJ447

poor

Author:VGGowda
Bench:RSethi,VGopalagowda
ORDERV.GopalaGowda,J.
1.Inthispetitionfiledbywayofpublicinterestlitigationonbehalfofthevictimswhohavelost
theireyesightsconsequentupontheoperationsconductedintheFreeEyeCampatChintamani
during the year, 1988, the petitioner has prayed for a direction to the respondents to pay
adequatecompensationandallothermedicalfacilitiestothevictimsandtosuitablyrehabilitate
themunderanyofthewelfareschemes.
2. The brief facts of the case are that on 28th and 29th January, 1988 a Free Eye Camp was
organisedatChintamaniinKolarDistrictunderthejointauspicesofLionsClubsofChintamani
andBangaloreandCommonWealthSocietyfortheBlind,NewDelhi.151personswereoperated
forcataractproblematVasaviKalyanaMandiraandtheirlisthasbeenproducedasAnnexureA
intheconnectedW.P.No.4351of1988whichwasdismissedfornonprosecutionon2651997.
Among them, 72 persons had lost one eyesight, 4 victims had lost both the eyes on account of
infection developed after the surgery with severe pains. The affected victims were shifted to
Minto Regional Institute of Opthalmology, Bangalore and S.N.R. Hospital, Kolar to provide
medicalassistance.On331988theGovernmentconstitutedaonemanCommissionofEnquiry
headedbyPadmabhushanaDr.P.ShivaReddytoenquireintothecircumstancesleadingtothe
tragedyandtosuggestremedialmeasuresandtosubmitareport.Suchareportwassubmittedon
2111989, copy of which has been produced at page 26 along with the Synopsis filed by the
GovernmentAdvocate.Weshalllaterrefertothereport.Inthemeantime,byanorderdated23
61988thisCourtdirectedpaymentofRs.5,00000asinterimcompensationtothefourpersons
who have become totally blind, in addition to the sum of Rs. 1,00000 already paid. Vide
GovernmentOrderdated181988suchapaymenthadbeenmade.Thereafter,on691988this
CourthaddirectedpaymentofRs.25000permonthtoeachof66victims.ByGovernmentorder
dated781990thesaidamounthasbeenpaidandsuchpaymentisbeingmadeasoftoday.At
present there are only 45 victims alive and the remaining 27 victims have died during the
pendencyofthewritpetitions.Thelistoftheremainingvictimsisproduced.
3. On behalf of the respondents, common statement of objections have been filed for both the
writ petitions. Whatever facts stated above have not been disputed by the respondents. The
conductofoperation,thenumberofpersonsaffectedandallotherfactshavebeenadmitted.On
the other hand, what the respondents have contended is that they have provided the best
treatment possible till the victims were completely cured. Respondents sought to justify the
action they have taken after the tragedy had occurred. At the end it is stated that the State
Governmenthassympathyforthevictimsandwilldotheirbesttorehabilitatethevictims.Thisis
thesumandsubstanceoftheobjectionsfiledonbehalfoftherespondents.
3A. In the light of the aforementioned facts, it has to be tested as to whether there was
negligenceonthepartofthedoctorswhohadperformedtheoperationsandwhatistheamount
ofcompensationpayabletothevictims.
4.ItistobenotedthattheGovernmentbyitsorderdated6101990hasorderedadetailedjoint
enquiryagainstthesurgeonswhohadperformedtheoperationstotheillfatedvictims.Itisnot
known as to what happened to that enquiry. However, the fact remains that a considerable
numberofpersonshavebeenaffectedaftertheoperations.Muchinvestigationisnotnecessaryto
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MissPushpaleelavsStateOfKarnatakaAndOtherson17April,1998

ascertainastowhetherthedamagehadbeencausedonaccountofnegligenceandcarelessnessin
conducting the eye camp in the light of the report submitted by Padmabhushan Dr. P. Shiva
Reddy. The conclusions/opinion arrived at in the said report are selfexplanatory and they are
reproducedhereunderinordertoarriveataconclusion.Theconclusions/opinionareasunder.
"Aftergoingthroughtheabovepointsandinviewofmypersonalexaminationofthecampsite
andpersonalexaminationofthepersonsinvolved,Ifeelthatthefollowingcircumstancescould
haveledtothetragicincidentthathascausedlossofsighttosomeofthepatientsgotoperatedat
ChintamaniEyeCamp:
1.Thesite/buildingselectedforconductingoperationswasnotsuitablesincetheroominwhich
operationswereperformedhasgotnodoorsandshutteredwindows.Inaddition,thelavatories
were also very close to the theatre and were not closed during surgery. Hence, there was every
possibilityofgettingtheeyesinfected.
2.Theprocedureadoptedforsterilizationwasmostunsatisfactoryasdiscussedearlierandcould
havebeenacauseforinfection.
3. The paramedical staff, who have worked in the camp were not experienced in handling the
sterilization and assisting the surgeons in theatre. As per the statements of the individuals, the
surgerywasnotassistedbytheindividualsmethodically.Noparticularjobwasentrustedtoeach
individual and no responsibility was fixed and the entire camp lacks expert supervision and
guidance,whichcouldhavegivenwayforhumanerror.
4. Though the result of the bacteriological examination of saline used for washing sharp
instrumentsandirrigationofAnteriorchamberduringsurgeryshowspresenceofnopathological
organisms,itcouldhavebeenasourceofinfectionsinceitwasexposedcontinuously.
5. I find that the Surgeons of the Mobile Opthalmic Unit, Dr. H.N. Thimma Setty and the Staff
Nurse,Smt.NancyD'Souzaaretobeheldresponsibleforthetragedythathastakenplace,asI
feelthatitistheirresponsibilitytolookafterthepreoperative,operativeandpostoperativecare
of the patients. I find that the greatest lapse is the procedure adopted for sterilization of the
instruments,equipmentandtheappliancesetc.,intheoperationtheatre".
Inordertoarriveattheaboveconclusions,itwasobservedthat:
"Asinglenursepreparingtheatre,sterilizingtheinstruments,doing150syringingsandassisting
theSurgeonduringoperationswithlimitedsetsandwritingoperationnoteswasunbelievable.
LadyHealthVisitors,whohavegotnotheatreexperience,assistingthesurgeonsintheatrewas
unimaginable.
Handlingofsterilizationofinstrumentswasdonebythedeputedstaffonwhomthesurgeonhas
gotnoconfidence.Inaddition,noparticularindividualwassupervisedforthesterilization.
Thesamestaffwasalsomadetocarrythetraysofinstruments,usedandunused,andtoassistthe
Surgeonsduringoperations.
Linenwassterilizedinasingledrum,autoclavedandlatertransferredtoabigdressingdrumthat
was previously sterilized by flaming with surgical spirit. Repeatedly the drum was opened to
removethecontentsofthesmallautoclaveddrum.Thusmakingitunsterile.
Immersion of sharp instruments in Ethicon fluid one day before operations and transferring to
cidexnextdaywasnotsufficient.
Onlysixsetsofinstrumentswereused,whicharenotsufficientforfourtables.
The procedure adopted in washing the used instruments is also not satisfactory. The non
pressure water sterilizer was placed in the operation room itself, making the place hot and
uncomfortablefortheoperatingsurgeonaswellastheotherstaff.
ThesalinewhichwasusedforirrigationofA/cduringthesurgerywasmadeatVictoriaHospital,
Bangaloreandfurtherexposedcontinuouslycouldhavebeenasourceofinfection".
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MissPushpaleelavsStateOfKarnatakaAndOtherson17April,1998

5.TheGovernmentofIndiahasfixedguidelinesfororganisingEyeCamps.Thereportsaysthat
the said guidelines were not followed properly. It is also held that the procedure adopted for
sterilizationwasnotuptothemark.Thus,itbecomesclearthatasaresultofnonprecautionary
measurestakenandonaccountofnotfollowingtheguidelinesprescribedbytheGovernmentof
India, the tragedy had occurred. The carelessness and negligence are evident from this. While
performingoperationsonimportantvitalorganslikeeyes,specialcareandattentionshouldhave
been taken. That has not been done in the instant ease. Consequently, the poor, illiterate and
agedvillagershavebecomethevictimsandsufferers.
6.Now,comingtothequantumofcompensationpayabletothevictims,itisnodoubttruethat
small amount has, already been paid towards compensation and a sum of Rs. 25000 is being
paideverymonthtothevictims.Whathasbeenpaidandispayingwillnotbesufficientforthe
poorvictimswhohavelosttheirvisionfornofaultoftheirs.Forsuchpersons,justicemustnot
onlybedonebutmustbeseentobedone.Webearinmindthatthepoorvictimshavelosttheir
visionandhadsufferedalotonaccountofseverepains.Theyhavebeendeprivedoftheirnormal
functioningontheonehandandweremadeaburdentothefamily.Someofthemarenomore
now.Butthesufferingstheyhadundergonecannotbeforgotten.Atthesametime,wealsotake
note of the steps taken by the State and other organisations in the matter of providing post
operationtreatments,therehabilitativemeasuresundertakenandthecompensationamountpaid
andisbeingpaideverymonth.Takingintoconsiderationtheoverallcircumstancesofthecase
and the situation in which the illfated victims were placed, we are of the opinion that ends of
justice would be met if lumpsum compensation is awarded to the victims in the following
manner:
(a)Amountpayabletothelegalrepresentativesofthevictimswhohavelostvisionofoneorboth
eyesandwhohavedied:
(i)WithintwoyearsoftheincidentRs.40,000000
(ii)AftertwoyearsuptonowRs.50,00000
(b)ForthosewhohavelostsightofoneeyeandalivenowRs.75,00000
(c)ForthosewhohavelostvisionofbotheyesRs.1,50,00000
7. Accordingly, the writ petition is allowed and we direct the respondents for payment of
compensation as above within two months from today. Until the payment of the compensation
awardedasabove,thepaymentofinterimcompensationthatisbeingpaidnowshallcontinue.
8. We make it clear that the compensation ordered above is excluding whatever compensation
alreadypaidhavingregardtothepeculiarfactsandcircumstancesofthecasetreatingthisasa
specialcase.Thequantumofcompensationawardedhereinshallnotbeaprecedentorguiding
factorforanyothercase.Thecompensationawardedisrestrictedtothiscaseonly.
9. Before parting with the case, we feel it necessary to observe that even though the connected
Writ Petition No. 4351 of 1988 was also filed in public interest, namely in the interest of the
present victims, the petitioners in that writ petition have not prosecuted the same and allowed
thesametobedismissedfornonprosecution.However,thepetitionerhasinthepresentpetition
has prosecuted it properly and was successful in securing justice to the illfated victims. While
appreciatinghersocialwork,wefeelthatitisnecessarytoawardcoststoherfortheinterestshe
hasshowninthepubliccause,thepainsshehastakenasalsothemoneyandtimespentforthe
prosecution of this case. Accordingly, we direct payment of costs of Rs. 5,00000 by the first
respondenttothepetitionerwithinfourweeksfromtoday.

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