P L D 2012 Balochistan 113
Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ
IMDAD.HOSPITAL AND MANNAZ LAPROSCOPIC CENTRE, QUETTA through
Managing Director and 2 others ---Appellants
Versus
SARDAR MUHAMMAD ---Respondent
Regular First Appeal No .63 of 2002, decided on 13th October, 2011.
(a) Medical jurisprudence ----
---C.T. Scanning ---Importance stated.
Foreign bodies are extraordinarily difficult to diagnose by plane films but C.T. scanning
offers an excellent method of their location. Th e density discrimination of C.T. is so
sensitive that foreign bodies that are not typically radiopaque can be seen.
Computed Tomography and Magnetic Resonance Image of whole Body 3rd Edn Vol 2 by
John R. Hagga, M.D., Charles F. Lanzieri, M.D., David J. Sartoris, M.D and Elias A.
Zerhouni M.D ref
(b) Medical jurisprudence ---
----Post-operative complications following appendicectomy i.e. intra abdominal abscess" and
"ileus " ---Connotation
Short Practice of Surgery, 23rd Edn By R.C.G. Russell, Norman, S. Williams and
Christopher J.K. Bull Strode ref.
(c) Suit for damages ---
----Negligent act ---Proof ---Act complained must be direct and immediate result of omission ---
Burden in such case would primarily lie on plaintiff to prove that he suffered on acc ount of
negligence on part of defendant.
Alia Tareen v Amanullah Khan PLD 2005 SC 99 rel Shakeel Ahmed and Zahid Muqeem
Ansari for Appellants
Syed Ayaz Zahoor for Respondents
Date of hearing: 27th September, 2011.
JUDGMENT
NAEEM AKHTAR AFGHAN, J .---This appeal is directed against the judgment/decree
dated 31st August, 2002 passed by the learned Civil Judge -V Quetta, whereby suit for
damages filed by respondent/plaintiff Sardar Muhammad has been decreed against the
appellants/ defendants to the ex tent of Rs.10,000,000 (Rupees Ten Millions) as general
damages.
2. Brief facts of the case are that on 5 -8-1997 respondent/plaintiff filed suit for damages
against the appellants/defendants contending therein that on 30th March, 1997 the
respondent/plain tiff was operated by appellant/defendant No.3 in Imdad hospital and Mehnaz
Laparoscopic Centre for operation of appendix due to abdominal pain, but after surgery the
pain continued. In the meanwhile, the appellant/defendant No.3 left for India to attend
conference on the next day of operation. The respondent/plaintiff remained in the hospital till
5th April, 1997 under severe pain without proper treatment and his condition deteriorated
day by day and under miserable condition he was removed to Agha Khan Uni versity
Hospital, Karachi and after several tests doctors came to the conclusion that the abdominal
pain was result of retention of abdominal sponge in the abdomen, which was left by
appellant/defendant No.3 inside his abdomen at Quetta during surgery, The tests further
revealed that the abdominal sponge inside the abdomen developed high grade temperature
and resulted in discharge of pus from the operated wound. On 7th April, 1997 C.T. scan of
the respondent/plaintiff was carried out, which revealed multipl e pockets of pus in the
abdomen. The respondent/plaintiff was operated in the Agha Khan University Hospital and
according to the respondent/plaintiff the abdominal sponge was found lying behind the
terminal ileum. After operation the respondent/plaintiff s tarted recovering slowly and. was
discharged. According to respondent/plaintiff the appellants/defendants were negligent and
careless and sponge/towel was left inside the abdomen after the surgery without taking all
precautionary measures and due to the in efficiency and inability of the appellants/defendants
the respondent/plaintiff suffered post operative complications resulting in heavy financial
loss to the respondent/plaintiff as well as expenditures for travelling, operation and treatment
at Agha Khan University Hospital, Karachi. The respondent/plaintiff contended that the
mental torture and agony suffered by the respondent/plaintiff cannot be estimated in terms of
money however, the plaintiff/respondent estimated the same to the tune of Rs.20,000,000
(twenty million rupees) by way of damages apart from Rs.2,50,000 (rupees two lacs and fifty
thousand) incurred by him at Agha Khan University Hospital, Karachi, which the appellants/
defendants are liable to pay jointly and severally. The respondent/plaint iff prayed for decree
against the appellants/defendants jointly and severally for the above amount as damages.
3. The suit was contested by the appellants/defendants by filing written statement. The
allegations levelled against the appellants/ defendants in the plaint were strongly contested
and denied. It wascontended by the appellants/defendants that the respondent/plaintiff was
brought to the hospital on 30th March, 1997 and examined by the appellant/defendant No.3
On clinical examination it was ascert ained that the pain in the abdomen was on account of
appendicitis and the respondent/plaintiff complained of abdominal pain for the last ten days
and the risk involved did not justify delay and invariably it required immediate surgery, as
such, the respond ent/plaintiff was operated through grid-iron incision. The surgery was
carried by the doctors taking all clinical precautions and the respondent/plaintiff remained in
the hospital till 5th April, 1997 and during this period he was regularly checked and loo ked
after by the trained staff of the hospital as well as doctors. The appellant/defendant No.3
being a qualified surgeon left for India on 3rd April, 1997 to participate in an International
Surgical Conference. The respondent/plaintiff was provided all po st operative care by the
staff and doctors in the hospital. The allegations to the contrary were strongly contested and
denied. It was contended that the respondent/plaintiff on his own'as well as at the instance of
his relatives got himself discharged fro m the hospital of the appellants/defendants without
there being any complaint of pain or any complication. The shifting of the
respondent/plaintiff to Agha Khan University Hospital was not admitted for want of
knowledge. It was categorically denied that an y-foreign body was left in the abdomen of
respondent/plaintiff by appellant/defendant No.3 during his operation. It was further
contended that the appellant/plaintiff was operated by grid iron incision due to which there is
no possibility of entrance of an y foreign body in the abdomen of respondent/plaintiff. It was
further contested that expenses incurred by the respondent/plaintiff at Karachi cannot be
attributed to any act or omission of the appellants/defendants.. It was further contended that
as per re spondent/plaintiff his C.T. Scan was carried out at Agha Khan Hospital but the
contents of the C.T. Scan report do not indicate any foreign body in the abdomen of
respondent/plaintiff. The allegations of carelessness and negligence on the part of
appellant s/defendants was strongly contested and denied. The allegations of suffering torture
and mental agony by the respondent/plaintiff due to the conduct of the appellants/defendants
were categorically denied and it was prayed that the suit be dismissed.
4. The out of the pleadings of the parties, the trial court framed the following issues:
(i) Whether the suit of plaintiff is without any cause of action and liable to be dismissed?
(ii) Whether suit is liable to be dismissed in view of legal objection 'A' , 'E' and 'F'?
(iii) Whether suit' is liable to be rejected in view of legal objection 'C'?
(iv) Whether the plaintiff is entitled for relief claimed?
(v) Relief.
5. That the trial court also framed the following additional issues: --
(i) Whether plaintiff was operated for appendix (appendix appendicectomy) by defendant No.3
on 30th March, 1997 and plaintiff was left at mercy of untrained staff?
(ii) Whether the plaintiff was shifted to Agha Khan University Hospital, Karachi and there it was
observed that sponge was left in abdomen of plaintiff?
(iii) Whether defendants Nos.2 and 3 have not taken permission from competent authority to
open Imdad Hospital and Mehnaz Laparoscopic Centre Jinnah Road, Quetta?
(iv) Whether plaintiff asked defendant that he was quite healthy and he may be discharged from
hospital?
6. After framing of issues the respondent/plaintiff produced seven witnesses along with
documents and recorded his statement on oath. In rebuttal the appellants/defendants
produced six wi tnesses and statement of appellant/ defendant No.2 Dr. Muhammad Younas
as well as appellant/defendant No.3 was also recorded on oath.
7. The documents Exh.P/4 to Exh.P/12 being , admitted by the parties were exhibited and
were made part of judicial record /evidence by the trial court.
8. After completion of evidence and hearing arguments the learned trial court decreed the
suit filed by respondent/plaintiff vide judgment impugned in the terms mentioned above. The
appellants/ defendants being aggrieved of the impugned judgment has preferred instant
appeal, whereas, the respondent/ plaintiff has neither filed any appeal, nor has filed any
cross -objections.
9. Learned counsel for the appellants/defendants Messrs H. Shakeel Ahmed Advocate and
Mr.Zahid Muqeem Ahsari, Advocate argued that presence of any foreign body in the
abdomen of the respondent/plaintiff after operation by the appellant/defendant No.3 has not
been proved through any report and the respondent/plaintiff has throughout failed to prove
any neg ligence or carelessness on the part of the appellants/defendants. Learned counsel
further argued that the post operative complications may develop due to numerous reasons
and after discharge of the patient from the hospital of the appellants/defendants, th e
appellants/defendants cannot be held responsible for such complications. It was further
argued that the judgment/decree impugned passed by the trial court is result of
misappreciation of evidence on record.
10. Learned counsel for the respondent/plaint iff Syed Ayaz Zahoor Advocate . argued that the
trial court has rightly passed the judgment and decree impugned, as the respondent/plaintiff
has suffered post operative complications due to negligence of the appellants/defendants, as a
foreign body was left in the abdomen of the respondent/plaintiff after operation of appendix
by appellant/ defendant No.3. He further argued that the appellants/defendants are
responsible for the mental torture and agony suffered by the respondent plaintiff.
11. After hearin g arguments of the learned counsel for the parties, we have carefully gone
through the record of the case.
The point for determination in the instant case is "as to whether a foreign body/ abdominal
sponge was left by the appellant/defendant No.3 in the abdomen of respondent/ plaintiff
during his operation of appendicitis and if so, whether the same was the cause of post
operative complication, resulting in further treatment and surgery of respondent/plaintiff at
Agha Khan University Hospital Karachi and whether the appellants/ defendants are liable to
pay the expenses incurred as well as general damages to the respondent/ plaintiff being
responsible for the same".
It is an admitted fact that the respondent/plaintiff was operated by appellant/defendant N o.3
in the Imdad Hospital and Mahnaz Laparoscopic Center Quetta on 30th March, 1997 and was
discharged on 5th April, 1997. According to the admitted document Exh.P/8 (operation
record), grid iron incision was given to the respondent/plaintiff and peritonea l cavity was full
of pus and the appendix was "gangrenous", which was removed after ligation and pus/fluid
was drained and one drain was retained. This admitted document Exh.P/8 speaks of the fact
that the respondent/plaintiff was suffering from gangrenes Appendicitis and after surgery his
abdominal cavity was cleaned from gangrene debris and after suction of exudate fluid (foul
smelling) the cavity was closed. The discharge slip (Exh.P/5) dated 5th April, 1997 also
mentions the fact that the appendix of th e respondent/plaintiff was gangrenous and the
peritoneal cavity was full of exudate fluid which was drained and a drain was retained. In the
discharge slip nothing has been mentioned about any temperature or severe pain suffered by
the respondent/ plaintif f at the time of discharge. The ultrasound report (Exh.P/6) of the
respondent/plaintiff conducted on 3rd April, 1997 by Dr. Qurban Ali Bugti (D.W.5) also does
not speak of any foreign body in the abdomen.
13. At the Agha Khan University Hospital Karachi, C.T. Scan examination of abdomen and
pelvis of the respondent/plaintiff was conducted on 7th April, 1997 and C.T. Scan report
(Exh.P/1 -A) was issued on 8th April, 1997, which does not mention about the presence of
any foreign body in the abdomen of the re spondent/plaintiff, however; peritoneal collections
were seen in the abdomen and it was suggestive of abscess (a post operative complication of
gangrenous appendicectomy).
14. According to P.W.7 Dr. Khawaja Inam Paul of Agha Khan University Hospital, he
conducted the operation of respondent/plaintiff on 7th April, 1997 and found pus in the
abdomen on the right side, small intestine was having a pore and the wall in the large
intestine, where appendix situates, was damaged/ black. The pore was repaired, th e pus was
drained and a portion of intestine - was taken out side the abdominal wall. According to
P.W.7 "a surgical gauze swab was found behind the intestine towards right side of the
abdomen." According to P.W.7 the towel was put in a specimen jar. At tha t stage, a towel
was shown to P.W.7 before the trial court as Art.1, which was not identified by the witness.
The witness was not categoric about the same and stated that three years have lapsed and he
cannot say as to whether it is the same or not, but it looks like a surgical swab. Learned
counsel for appellants/defendants objected that same (Art. l) , cannot be produced by the said
witness, as it was not previously deposited with the court and same has not been relied or
mentioned in the plaint. P.W.7 als o produced a summary dated 30th June, 1997 (Exh.P/2)
prepared by him at the time of discharge of the respondent/plaintiff which mentions of an
abdominal sponge found lying behind the terminal ileum. According to Summary Exh.P/2
prepared and produced by P.W .7 respondent/plaintiff was diagnosed with 'Infra Abdominal
Abscess with secondary involvement of the abdominal wall'. According to P.W.7 after
discharge on 26th April, 1997 the respondent/plaintiff was again admitted on 2nd May, 1997,
as he had developed injury of skin due to discharge from the intestine (which was left outside
the abdominal wall) and he was again discharged on 8th May, 1997 and another summary
Exh.P/3 was also written by the witness. P.W.7 during cross -examination admitted that the
doctor s while conducting C.T. Scan examination of the respondent/ plaintiff and preparing
C.T. Scan report failed to detect foreign body in the abdomen of respondent/plaintiff.
According to "COMPUTED TOMOGRAPHY AND MAGNETIC RESONANCE IMAGE
OF WHOLE BODY", 3RD Edition, Volume two by JOHN R. HAGGA, M.D., CHARLES F
LANZIERI, M.D., DAVID J. SARTORIS, M.D., and ELIAS A. ZERHOUNI M.D 'foreign
bodies are extra ordinarily difficult to diagnose by plane films but C. T. Scanning offers an
excellent method for A their loc alization. The density discrimination of C.T. is so sensitive that
foreign bodies that are not typically radiopaque can be seen ".
Hence in view of the above, if there was any foreign body left in the body of the
respondent/plaintiff the same should have been detected in C.T. Scan Examination/Report at
Agha Khan University, Hospital Karachi. P.W.7 has not stated a single word about the cause
of post operative complication i.e. "Intra abdominal abscess" faced by respondent/plaintiff and
has never stated th at same was caused/ developed due to any foreign body in the abdomen of
the respondent/plaintiff (the alleged abdominal sponge) or it was due to carelessness,
negligence or inefficiency of the appellants/defendants. This aspect cannot be ignored
particular ly when the respondent/plaintiff is holding the appellants/defendants responsible
for the post operative complication and is claiming damages against the
appellants/defendants as well.
15. According to the statement of respondent/plaintiff the allegedly recovered gauze/towel
was measuring 1 x 1 feet and same was handed over to his brother Haji Naik Muhammad.
Haji Naik Muhammad while appearing before the court did not produce the specimen jar or
the allegedly preserved gauze, but produced a towel for obser vation of the court, which was
returned by the court. It has also come on record through Exh.D/1 (daily Jang dated 21st
May, 1997) that the respondent/plaintiff held a press conference with regard to his operation
and the circumstances, wherein a photograp h of the respondent/plaintiff was also
printed/shown displaying a large size towel showing the same to have been recovered from
the abdomen of respondent/plaintiff, which is not possible at all, as according to DW -6
Surgeon Abdul Qayyum in a "grid iron inc ision ", an incision of 1 to 3 inches is made and it is
not possible to insert an abdominal towel or abdominal sponge in such incision.
16. There is no doubt about the fact that the respondent/plaintiff has undergone surgery and
treatment at Agha Khan Un iversity Hospital, Karachi, subsequent to his operation of
Appendix by the appellant/defendant No.3 at Quetta, but the record reveals that same was
due to "intra abdominal abscess ", which is a post operative complication, more common with
gangrenous appen dicitis from which the "respondent/plaintiff was already suffering 'prior to
his operation by appellant/defendant No.3.
According to "SHORT PRACTICE OF SURGERY", 23rd Edition by R.C.G. RUSSELL,
NORMAN S. WILLIAMS AND CHRISTOPHER J.K. BULL STRODE, the pos t operative
complications following appendicectomy include "intra abdominal abscess ", as well as
"wound infection amongst other complications. According to the referred book,
"Infra abdominal abscess
Intra abdominal atlscess has become a relatively ra re complication after appendicectomy
with the use of perioperative antibiotics. Post operative spiking fever, malaise and anorexia
developing 5 -7 days after operation, suggest an intraperitoneal collection. Interloop,
paracolic, pelvic and subphrenisites s hould be considered. Abdominal ultrasonography and
C.T. scanning greatly facilitate diagnosis -and allow percutaneous. drainage Laparotomy
should be considered in patients suspected to have intra -abdominal sepsis in whom imaging
fails to show a collection, particularly those with continuing ileus.
Ileus
A period of adynamic ileus is to be expected after appendicectomy, and may last for number
of days following removal of a gangrenous appendix. Ileus persisting for more that 4 -5 days,
particularly in the presence of a fever, is indicative of continuing intra -abdominal sepsis and
should prompt further investigation."
As discussed earlier the C.T. Scan Examination Report Exh.P/1 of the respondent/plaintiff
was suggestive of "abscess" and the most important witness of the case i.e. P.W.7 had also
diagnosed the respondent/plaintiff as a patient of "infra abdominal abscess ". It is established
on record that the respondent/plaintiff had undergone further surgery and treatment at Agha
Khan University Hospital, Karachi not due to the alleged abdominal sponge or due to alleged
negligence, carelessness or inefficiency of the appellants/defendants, but due to post
operative complication of gangrenous Appendicectomy i.e. "Intra abdominal abscess".
17. P.W.7 has now here stated that "Intra abdominal abscess" i.e. post operative complication
was caused/ developed due to any_,foreign body/ alleged abdominal sponge. The presence of
foreign body in the abdomen of respondent has not been proved through the ultra sound
exam ination as well as C.T. scan examination. Same cannot be held proved on the basis of
mere contradictory oral evidence raising serious doubt as to whether it was allegedly a towel
or gauze or sponge, produced differently at the trial by P.W.4, by the respon dent/plaintiff
himself during his press conference dated 21st May 1997 (Exh.D/1) and not identified by
P.W.7. at the trial.
It is to be observed here that in cases of damages the act complained of must be the direct
and immediate result of the omission. It is by now well established principle of law that in an
action for damages on account of negligence, the burden of proof primarily lies on the
plaintiff to establish that he has suffered on account of negligence on the part of the
defendant. Reliance in this regard is placed on the case of Alia Tareen v. Amanullah Khan,
PLD 2005 SC 99.
In the instant case the subsequent surgery and treatment of the respondent/plaintiff has never
been proved to be the direct and immediate result of the alleged abdominal sponge or the
alleged carelessness, negligence or inefficiency of the appellants/ defendants rather the same
has been proved to be the direct and immediate result of the post operative complication
"Intra abdominal abscess" of gangrenous Appendicitis with which the respondent/plaintiff
was already suffering prior to his surgery by the appellant/defendant No.3.
We are of the view that the respondent/plaintiff has absolutely failed to discharge the burden
of proving that he has suffered the subsequent surge ry and treatment at Agha Khan
University Hospital, Karachi as a result of alleged retention of abdominal sponge or due to
alleged negligence, carelessness or inefficiency of the appellants/defendants. Hence, the
point for determination is answered in negat ive and we are unable to uphold the findings of
the trial court upon additional Issue No.1 and additional Issue No.2. The judgment and
decree impugned passed by the trial court is a result of misreading of evidence and
misappreciation of facts as well as l aw and the medical science.
Consequently, the appeal is accepted, the impugned judgment and decree dated 31st August,
2002 passed by learned Civil Judge -V, Quetta is set aside and the suit filed by the
respondent/ plaintiff for damages is hereby dismisse d with no orders as to costs.
Decree sheet be drawn separately.
S.A.K./141/Q Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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