PLJ 2025 Quetta 82
Present: G UL HASSAN TAREEN , J.
Dr. SADAF USMAN --Petitioner
versus
AHMED YAR --Respondent
C.R. No. 48 of 2024, decided on 14.6.2024.
Civil Procedure Code, 1908 (V of 1908) --
----S. 115 & O.VI R. 2--Qanun- e-Shahadat Order, (10 of 1984), Art. 25 --Death of petitioner’s
wife--Negligence of doctor --Post -mortem was not conducted-- Suit for damages --Decreed --
Appeal --Dismissed --Concurrent findings --Inquiry proceedings --Special damages were not
claimed --No evidence regarding special damages --General damages --Modification in judgment --
Challenge to --In suits in which damages are claimed, any fact which will enable Court to
determine amount of damages which ought to be awarded, is relevant --Special damages
(pecuniary compensation) are awarded to reimburse actual expenses incurred and not to make
profit out of injury-- Respondent had not pleaded special damages to have accrued from
negligence of petitioner neither led any evidence therefor --Hence, special damages couldn’t be
implied or presumed--Respondent had no case at all for claiming special damages --General
damages (non -pecuniary losses) are discretionary in nature for which it is not possible to lay
down yardstick, which should be compensatory in nature and not punitive --Damages awarded by
subordinate Courts were extremely high and more punitive than compensatory--Pain and mental
torture couldn’t be measured in terms of money and compensation awarded on those counts was just a solatium-- Concurrent findings of subordinate Courts that petitioner’s negligence caused death of respondent’s wife did not suffer from any error of law and of jurisdiction nor same suffers from any misreading or non- reading of evidence; as such, they were upheld--However, so
far as award of rupees 50 million to respondent was concerned, in that regard impugned
judgments were brief and non- speaking--Subordinate Courts had ignored law on subject of
general damages, therefore, to such extent, impugned judgments require modification--Civil
revision partly allowed.
[Pp. 103 & 104] A, B, C & D
1996 CLC 1440 & PLJ 2005 SC 645 ref.
Mr. Behlol Khan Kasi, Advocate for Petitioner.
Mr. Talal Rind, Advocate for Respondent.
Date of hearing: 30.5.2024.
JUDGMENT
The petitioner has filed this civil revision petition under section 115, the Civil Procedure Code,
1908 (‘CPC’) from the judgment and decree dated 08 May 2023 rendered by the learned Senior
Civil Judge -I, Quetta (‘Trial Court’), whereby respondent’s civil suit for recovery of rupees 50
million as damages was decreed and the judgment and decree dated 01 December 2023 rendered
by the learned Additional District Judge -III, Quetta (‘Appellate Court’), whereby appeal
preferred by the petitioner from the decree of the Trial Court was dismissed and cross objections filed by the respondent were allowed.
2. Precisely, facts of the case are that respondent entered into a matrimonial union with
Atiya Ahmed (‘deceased/patient’). The union was blessed with two children. She conceived for the third time and started visiting the clinic of petitioner at the Lady Dufferin Hospital, Quetta
(‘LDH’). In the 8th month of pregnancy, her platelet count was found below the normal and on
the advice of petitioner; she visited on 01 August 2018, the Command Military Hospital Quetta
Cantt. (‘CMH’) and did her Complete Blood Count (‘CBC’) test. Her platelet count was 144,000.
On 03 August 2018, she visited petitioner for medical check up, however, petitioner did not examine the CBC test report dated 01 August 2018 and advised that, what she had prescribed on 18 May 2018, should be followed. She visited the petitioner at LDH on 09 September 2018 at 10:00 a.m. She was admitted to the LDH under the care of petitioner and CBC test was done. The platelet count was 101,000, therefore, it was advised to repeat the CBC from the Children
Hospital, Quetta (‘CHQ’). According to the subsequent CBC report, the platelet count was
91,000. She had a normal spontaneous vaginal delivery of a still born baby boy. Later, she
started profuse bleeding which could not be managed by the petitioner. Informal consent was taken from the respondent for removing the uterus of patient through surgery. Petitioner performed surgery, despite the fact, that there were no infection signs in the uterus. After
removing uterus, abnormal bleeding was continuing which could not be stopped by the petitioner
and at 12:00 (night), petitioner left the patient in serious condition in the LDH and went home
and refused to come back and attend the patient. On telephonic conversation, petitioner advised
that patient should be shifted to the CMH and instructed female junior nurses namely Maryam and Shaista to assist the patient to the CMH at 1:45 a.m. On the instruction of petitioner, one
Assistant Doctor issued a written report of the patient. The patient was taken to the CMH, where
she was not admitted and the CMH’s staff declined to handle her case. The CMH could not
arrange the platelets. Respondent called the petitioner on her cell phone and requested for
attending the patient at the CMH but she did not bother rather refused to come, as such,
petitioner had to shift the deceased at 3:30 a.m. to the Sandeman Provincial Civil Hospital Quetta
(‘SPCH’) where she was admitted. Blood and platelets were transfused to the patient but she got
improved just 1%. The Authority in SPCH informed that she is not getting improvement and advised, for shifting the patient to the Karachi for better care and issued a detail report and blood
reports. At then, the platelet count of the deceased was just 18,000. Respondent arranged EDHI’s
Air Ambulance and on 11 September 2018, deceased was taken to the Aga Khan University
Hospital, Karachi early in the morning. In the Emergency Room, the deceased was found dead
on first examination at 11:45 hours.
In the suit, respondent pleaded that the deceased lost her life because of recklessness and
negligence of petitioner before and after delivery of the baby. It was expedient for the petitioner
to examine the CBC report dated 01 August 2018 on 03 August 2018 and should have had to
advise the deceased for transfusion of 6 pints of platelets and 1 pint of blood so that the platelet
count would increase to the 150,000 at least, however, petitioner failed to, advise for blood tests and, examine the general fitness of the deceased. After delivery, because of serious condition of
the patient, petitioner should have given emergency treatment. Petitioner should have informed
the respondent about the serious medical condition of the deceased, however, informal consent of respondent was taken for removing the uterus. After conducting surgical surgery, petitioner should have, admitted the deceased in the Intensive Care Unit (‘ICU’) and, monitored the pulse and B.P on hourly basis. Petitioner did not monitor the heart beats of the patient through ECG and, take care of blood transfusion. After surgery, the deceased was bleeding, however,
petitioner could not manage bleeding and in the midnight left the patient in serious condition.
Respondent further pleaded that due to gross professional negligence of petitioner, she has rendered herself liable for payment of suit amount as damages. He is facing hardships due to death of his life partner in early age of just 35 years and he alone has to take care of his three children ages 11 years, 10 years and newborn of two and half months. Because of acts of recklessness of petitioner, all three minors have lost the love and kindness of their mother which
caused irreparable loss to the respondent and to the minors. On 17 September 2018, respondent
filed a complaint before the President, Management Committee, LDH which was entertained and on 02 October 2018, respondent along with his counsel and a doctor and members of the committee were summoned by the committee. After examination of petitioner by the Inquiry Committee and the expert doctor, petitioner admitted her professional lapses and admitted it correct that she had not examined the blood reports of the deceased. On 25 October 2018,
committee compiled its report and held liable the petitioner for gross negligence and recklessness
and recommended for her immediate termination from the position of M.S, the LDH. On 30 October 2018, petitioner tendered her resignation to the President, Management Committee, LDH which was accepted. On 30 October 2018, respondent issued legal notice to the petitioner claiming damages which was duly served upon the petitioner on 06 November 2018, but petitioner did not answer the same. Being a responsible professional lawyer, the unfortunate
incident has damaged respondent’s fame in the legal fraternity as well as in the general public.
He suffers severe depression, as such, cannot perform his professional job and is facing great
hardship in dealing with day to day affairs.
3. In prayer clause, respondent claimed recovery of an amount of rupees 50 million as
damages.
4. On service of summons, respondent submitted written statement and denied the attributed
professional recklessness and negligence. On such pleadings, the Trial Court framed following
issues:
“1. Whether Atiya Ahmed the wife of plaintiff (patient) was under the treatment of defendant
from the first month of her pregnancy?
2. Whether defendant had not checked the blood test report of patient indicating her platelet
count?
3. Whether defendant had negligently handled the delivery case of patient and without
adopting the standard procedures operated upon her?
4. Whether defendant had not taken the consent of patient’s husband (plaintiff) after
sensitizing him of the serious condition of patient and worst -case scenario?
5. Whether defendant did not attend the patient, post -operation, and shifted patient to
Combined Military Hospital (CMH) Quetta and also did not care to come to CMH when the
authorities there refused to attend the patient?
6. Whether due to the gross negligence on the part of defendant, patient lost her life?
7. Whether defendant’s negligence makes her liable to pay damages to plaintiff?
8. Whether plaintiff is entitled for the claimed reliefs, if so, then to what extent?”
After recording oral and documentary evidences of both sides, the Trial Court decided Issue Nos.
1 and 4 in negative while the remaining in affirmative, and, as such, decreed the suit as prayed for vide judgment and decree dated 08 May 2023.
5. Petitioner assailed the judgment by filing appeal before the Appellate Court. Respondent
also assailed the findings of Trial Court on the Issue Nos. 1 and 4 by filing cross -objections.
Vide common judgment and decree dated 01 December 2023, the Appellate Court dismissed petitioner’s appeal, however, allowed the cross -objections.
6. Mr. Behlol Khan Kasi, learned counsel representing petitioner to begin with, contended
that the deceased had a normal vaginal delivery, however, she was oozing from uterus and with consent of respondent, petitioner removed the uterus which was the sole option to save the life of the deceased and, with the assistance of medical team, petitioner conducted a successful surgery of removing the uterus, but since platelet count was low and facilities of platelets and ICU were not available at the LDH, consequently, she advised the respondent for shifting the patient and
arranged ambulance and shifted the patient to the CMH where she was lying on stretcher for several hours without any medical aid by the medical staff of the CMH, which fact was admitted by the deceased’s brother, PW -14. In addition, learned counsel contended that later, patient was
shifted to the SPCH, where she was not treated for 9 to 10 hours and PW -7, PW -8 and PW -9 had
admitted it correct in their examinations. Furthermore, contended that cause of death of the patient could only be determined through post mortem, therefore, without confirmation of the cause of death, recklessness attributed to the petitioner was totally unfounded. He placed reliance on the case reported as Gul Muhammad v. The State (2021 SCMR 381). He added that petitioner is outstanding Gynecologist in the Quetta City and she had performed what a professional doctor could be expected to do in such like situation and the PW -1 had admitted that the CBC test was
advised by the petitioner to be carried out. In conclusion, learned counsel contended that the Courts below have relied upon the statement of petitioner in piecemeal, and, since patient’s relatives couldn’t arrange platelets, as such, negligence couldn’t be attributed to the petitioner. He added that suit suffered from non- joinder of petitioner’s medical team members; however, all
such facts have been overlooked by the subordinate Courts.
7. Mr. Talal Rind, learned counsel representing respondent, at the outset, raised objection on
the maintainability of the civil revision petition by contending that concurrent findings of facts
recorded by the Courts below are immune from interference in the limited revisional jurisdiction. To begin with, contended that petitioner was accused of commission of gross negligence for, she had not examined the CBC reports of the patient and after the findings of the committee, she
herself tendered resignation and did not resort to any legal action against the inquiry committee’s
report and findings thereof. In addition, contended that documents produced by the petitioner were forged, as such, have rightly been discarded by the subordinate Courts, whereas, the two nurses who were associated with the patient to the CMH were not examined by the petitioner as witnesses. Furthermore, contended that death of deceased occurred because of removal of uterus
of which respondent had not extended legal consent. In conclusion, contended that petitioner had
not furnished the names of her medical team in the written statement, therefore, suit not defective
on account of non -joinder of necessary party. Learned counsel placed reliance on the following
case laws:
Abdul Basit v. Saeeda Anwar (PLD 2011 Karachi) 117 and
MEPCO Chief Executive Officer v. Fazal Cloth Mills Ltd. (2022 CLC 1996).
8. Heard and have gone through the record.
9. At the outset learned counsel representing respondent raised objection to the
maintainability of the revision petition by stating that the concurrent findings of facts are not open to scrutiny in revisional jurisdiction. A clear statement of law about the limits of revisional jurisdiction of the High Court qua concurrent findings of facts appears in the case reported as Abdul Hakeem v. Habibullah (1997 SCMR 1139), wherein it was inter alia held as follows:
“6. Before considering the contentions of the parties on merit, we would like to
mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C is very limited. The High Court while examining the legality of the judgment and decree in exercise of its
power under section 115, C.P.C cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings
of facts can only be interfered with by the High Court under section 115, C.P.C if the
Courts below have either misread the evidence on record or while assessing or
evaluating the evidence have omitted from consideration some important piece of
evidence which has direct bearing on the issues involved in the case. The findings of facts
will also be open to interference by the High Court under section 115, C.P.C if the
approach of the Courts below to the evidence is perverse meaning thereby that no
reasonable person would reach the conclusions arrived at by the Courts below on the
basis of the evidence on record.”
However, interference is permissible in revisional jurisdiction with concurrent findings of facts which findings are found to be suffering from misreading of evidence; or it has resulted due to non-reading of material evidence or based on no legal evidence, but on conjectures; and the
subordinate Courts have acted illegally inasmuch as the findings rendered are against law or against the law declared by the superior Courts.
10. Keeping in consideration, afore stated broad principles which may justify interference by
the Court with concurrent findings of facts on Issue Nos. 2, 3 and 5 to 8 by the subordinate Courts, I proceed to examine whether there is any justification for interference by this Court with the concurrent findings of facts recorded by the Trial Court and the Appellate Court.
11. In her written statement, petitioner had pleaded that the deceased was under her care from
the fifth month of pregnancy. Petitioner, however, admitted that on 01 August 2018, platelet
count of the deceased was 144,000, which according to her was acceptable for normal delivery,
however, contrarily, petitioner pleaded that during her antenatal period, deceased was advised to have blood transfusion, however, she refused to have it. Such pleading transpires that blood
transfusion was the ultimate medical need which the patient had allegedly denied. However,
petitioner could not bring on record any such advice slip or prescription on record suggesting that indeed, she had prescribed blood transfusion. In reply of para No. 2 of the plaint, petitioner
admitted that on the date of admission to the LDH i.e . 09.09.2018, she had prescribed CBC and
as per the LDH Lab report, the platelet count of deceased was 101,000, and fresh blood of 2 pints
were arranged and blood transfusion was commenced prior to the delivery. However, on 09
September 2018, CBC was also done at the CHQ and the report of CHQ stated the blood count
of deceased as 91,000. Such fact was not denied by the petitioner in reply of para No. 2 of the plaint. Petitioner pleaded that one hour after the delivery, the patient was bleeding for, the uterus
was not contracting, as such, patient was shifted to the Operation Theatre. The respondent was
apprised that the uterus fails to contract and bleeding is profuse which could lead to a potentially life threatening condition and with his formal consent, all necessary measures were taken to
manage the bleeding and F.F.P.S (Fresh Frozen Plasma) was transfused to the patient. Since
bleeding could not stop, consequently, consent in writing of respondent was obtained for Hysterectomy (it is surgery to remove the uterus), which was the sole option for saving the life of
the patient. After treatment of Hysterectomy, patient got recovered and bleeding prevented.
Patient was stable, and for such reason, was shifted to the observation room as ICU facility was not available in the LDH. Later, petitioner observed oozing from the wound. Petitioner called the
ICU at CMH and arranged the shifting of the patient to CMH and a duty Medical Officer was
deputed to shift the patient.
12. Following facts emerge from the written statement of petitioner:-
(a) the patient was treated as Gynecologist by the petitioner from the fifth month of
pregnancy;
(b) on 01 August 2018, the platelet count of the deceased was 144,000;
(c) patient was advised, by the petitioner, to have blood transfusion which she had denied;
(d) on 09 September 2018, patient was admitted to the LDH and she had 101,000 platelet
count prior to the delivery;
(e) two pints blood were arranged and blood transfusion was started before the delivery;
(f) patient started bleeding after an hour of delivery because of Atony of the uterus;
(g) uterus was removed to save the life of deceased with consent in writing of the respondent
for, all other treatments failed;
(h) five pints blood and F.F.P.S were transfused to the patient;
(i) patient was stable after surgery and bleeding prevented and was shifted to the observation
room for, ICU facility was not available at the LDH; and
(j) blood was oozing from the wound, patient was serious and petitioner deputed a duty
Medical Officer for shifting the deceased to the CMH.
Platelets are small, colorless cell fragments in human’s blood that form clots and prevent
bleeding. Platelets are made in our bone marrow, the sponge like tissue inside our bones. Bone
marrow contains stem cells that develop into Red Blood Cells, White Blood Cells and Platelets.
Raising the patient’s blood platelet count reduces the
life risk or even fatal bleeding. A low platelet count occurs when, platelets have been lost due to severe bleeding, such as following a traumatic injury or during surgery. Symptoms of low
platelets including bruising easily and unusual bleeding, such as excessive bleeding from a small
cut et cetera. (Red Cross Blood Donation https://www.redcrossblood.org.) Thrombocytopenia
(low platelet count) means one has fewer than 150,000 platelets per micro liter of circulating
blood. Some conditions can cause your body to use up or destroy platelets faster than they are
produced, leading to a shortage of platelets in the bloodstream. Thrombocytopenia causes by pregnancy is a common instance of increased breakdown of platelets (Mayo Clinic
https://www.mayoclinic.org.). Naghmi Asif (Assistant Professor Pathology, Islamabad Medical
& Dental College, Islamabad) and Khalid Hassan (Professor and Head, Department of
Pathology, Islamabad Medical & Dental College, Islamabad), in Journal of Islamabad Medical
and Dental College, Review Article opined that Thrombocytopenia is the second common
hematological abnormality during pregnancy. In majority cases, platelet counts revert back to normal after pregnancy. However, in some cases, the disease is more serious and if not managed
properly leads to increased maternal mortality and morbidity and may also manifest fatal
haemorrhages in neonates (newborn baby).
13. On 30 August 2018, platelet count of the deceased was 112,000 (Ex.P/4- B) and on 09
September 2018, it was 101,000 (Ex.P/4- C). On the same date, the CBC was repeated and
platelet count of the deceased was 81,000 (Ex.P/4- D). On the advice of petitioner, the CBC was
again repeated from the CHQ on 09 September 2018 which was 91,000 (Ex.P/2- B). On 10
September 2018, the platelet count of deceased was 25,000 (Ex.P/3- A). In her written statement,
petitioner herself stated that she had advised the patient to have the blood transfusion, however, the patient denied, but, contrarily stated that on 01 August 2018, the platelet count was 144,000.
14. On 30 August, 2018 (Ex.P/4- B), platelet count of the patient was 112,000 which on 09
September 2018, was declined to 101,000 and then to the 91,000. Though petitioner stated that
she had advised the deceased to have transfusion but no such advice was brought on record by
the petitioner. Petitioner also pleaded that despite such advise, patient refused blood transfusion, then petitioner should not have admitted the patient in the LDH and treated when she was not
following petitioner’s advice. Admission of patient to the LDH and subsequent care by the
petitioner demonstrates that she had not at all advised the deceased for blood transfusion. However, if pleading of petitioner is believed that she had advised so, then before and after the
delivery but prior to the surgery, petitioner should have transfused platelets to the patient to
avoid the risk of low platelet count in deceased’s blood. She had gone through the Ex.P/2- B
(according to her version) which reflected platelet count of the deceased as 91000, however,
petitioner had not taken care of such reading and without transfusing the platelets, first carried
out the delivery and then treated the patient for removing the uterus whereas, at then, deceased
was severely bleeding. Petitioner, though pleaded that two pints blood was transfused into,
before and during the delivery, however, no such legal evidence was produced in evidence
showing that required blood was transfused into for recovery of low platelets. On next day of the delivery i.e . 10 September 2018, when patient was shifted to the SPCH, platelet count of the
patient was just 18000 (Ex:P/10- B) which has confirmed that petitioner treated the deceased
negligently.
15. Petitioner also pleaded that the condition of patient was serious, therefore, she called the
ICU at CMH and arranged the shifting of patient to the CMH. The patient was shifted at about
01:45 a.m., however, the CMH’s staff declined to admit the patient and again, patient was taken at about 03:30 a.m. to the SPCH where she was admitted. Refusal by the CMH to admit the deceased falsified the pleading of petitioner that she had in fact called the ICU at the CMH.
Petitioner, without confirmation of admission and admitting the patient in ICU, by the CMH,
directed for shifting the deceased to the CMH which reflects her gross recklessness and
professional negligence. The deceased was lying on stretcher for hours without any medical aid and till shifting to the SPCH, the condition of patient was so critical that despite transfusion of blood and admitting the patient in the ICU, the patient could not recover and on the very next day i.e . 11 September, 2018 at 11:45 hours, the patient was found dead in first examination at the
Aga Khan University Hospital Karachi.
16. The deceased was just 35 years and was not suffering from any fatal disease. Petitioner
had not even pleaded that the deceased had some bodily disorder or irreversible complications. The baby born through normal viginal delivery which shows that there was no complication during pregnancy and at the time of delivery except low platelet count which could have been overcome by the petitioner if the delivery would have postponed and, immediately, transfused
platelets. Petitioner was well- conversant that ICU facility was not available in the LDH but she
took risk and operated the deceased for removal of uterus at a very low platelet count which
ultimately resulted in profuse bleeding and finally, the same resulted on the premature death of a healthy patient.
17. Dr. Muhammad Hassan was PW- 6. He testified that the platelet count of the patient was
low and she was in shock. He produced the referral letter as Ex:P/6- A. The Ex:P/6- A states that
the platelet count of the deceased was 18,000. Dr. Ayesha Saddiqa was PW -7. She testified that
the platelet count of patient was 18,000 and she could not be operated on such platelet count. After delivery, deceased fell in post -partum hemorrhage because of excessive bleeding which
was caused because of low platelet count. PW- 8, Dr. Zaib- un-Nisa Magsi deposed that she
observed bruises on both arms of the patient (signs of low platelet count) and there was no urine output and patient was in the state of shock. Dr. Arifa Inayat (PW -9) deposed that normal platelet
count is 150,000 to 450,000 and during pregnancy, it reduces.
18. Respondent filed complaint before the Management Committee, LDH. The Member,
Executive Committee appeared on oath as PW- 12 and testified that inquiry was initiated and the
petitioner admitted that she had not gone through the platelets report of the deceased and petitioner could not answer that why she had operated the patient when platelet count was below the average range and an inquiry committee was constituted to investigate the complaint. The inquiry committee called both parties and thereafter reached at an unanimous conclusion which was submitted before the Saifullah Paracha, President, Management Committee. PW- 12
produced inquiry report as Ex:P/12. Petitioner exhibited confidence on the inquiry committee. After findings of committee, petitioner tendered her resignation. The inquiry committee was comprised upon PW -12, Dr. Ruqia Hashmi, Dr. Razia Sultana and PW -13, Abdul Sattar Durrani.
PW-13 testified that after inquiry, the committee reached at the conclusion that the deceased died
because of reck lessness and negligence of the petitioner. He identified his signature on the
Ex.P/12. The members of inquiry committee insisted for termination of petitioner, however, she
had requested that she be allowed to tender resignation and on 29 October 2018, petitioner
tendered resignation (Ex.P/14- L) which was accepted on 30 October 2018. Petitioner had not
challenged the formation of inquiry committee, its proceedings and the decision, before any forum rather had accepted the decision of the inquiry committee and accepted the charge of sheer negligence while handling the case of deceased, by tendering resignation without any protest
which attained finality.
19. In the inquiry proceedings, petitioner appeared in person. The relevant in her examination
is reproduced hereunder: -
“ﺳﻮال :ﻣﺮﯾﻀہ آپ ﮐﮯ ﭘﺎس ﮐﺐ ﺳﮯ آرﮨﯿﮟ ﺗﮭﯿﮟ؟
ﺟﻮاب: ﺣﻤﻞ ﮐﮯ ﭘﮩﻠﮯ ﻣﺎه ﺳﮯ۔
ﺳﻮال: ﭘﮩﻼ ﺑﻠﮉ ﮢﯿﺴﭧ آپ ﻧﮯ ﮐﺐ ﮐﺮواﯾﺎ؟
ﺟﻮاب: 01.08.2018
ﺳﻮال :آپ ﺑﺘﺎ ﺳﮑﺘﯿﮟ ﮐہ اس وﻗﺖ اُس ﮐﺎ platelet count ﻛﺘﻨﺎ ﺗﮭﺎ ؟
ﺟﻮاب: ﻣﯿﮟ ﻧﮯ ﺧﻮن ﮐﮯ ﻧﻤﻮﻧہ ﮐﺎ ﮢﯿﺴﭧ ﮐﺮواﻧﮯ ﮐﻮﺑﻮﻻاور رﭘﻮرٹ ﻣﺠﮭﮯ دی ﻣﮕﺮ ﻣﯿﮟ ﻧﮯ
ﻧہ دﯾﮑﮭﯽ ﺗﮭﯽ۔
ﺳﻮال: ﺟﺲ وﻗﺖ ﻣﺮﯾﻀہ ﮐﻮ آپ ﮐﮯ ﭘﺎس داﺧﻞ ﮐﯿﺎ ﮔﯿﺎ ﻣﻮرﺧہ 09.09.2018 ﮐﻮ ﺑﻠﮉ ﮢﯿﺴﭧ آپ
ﻧﮯ ﮐﺮواﺋﮯ ﺗﮭﮯ ؟
ﺟﻮاب: ﺟﯽ ﮨﺎں
ﺳﻮال: اُس وﻗﺖ رﭘﻮرٹ آپ ﻧﮯ ﭼﯿﮏ ﮐﯿﮯ ﺗﮭﮯ؟
ﺟﻮاب: ﺟﯽ ﻧﮩﯿﮟ۔
ﺳﻮال :آﺧﺮ ﻣﯿﮟ 81000, platelet ﭘﺮ آﮔﯿﺎ اﯾﺴﮯ ﻣﺮﯾﻀہ ﮐﻮ اﻧﺘﮩﺎﺋﯽ ﻧﮕﮩﺪاﺷﺖ ﮐﮯ ﮐﻤﺮے
ﻣﯿﮟ رﮐﮭﺎ ﺟﺎﺗﺎ ﮨﮯ اور ﮐﮩﯿﮟ ﺷﻔﭧ ﻧﮩﯿﮟ ﮐﯿﺎ ﺟﺎﺗﺎ ؟
ﺟﻮاب: ﮐﻮﺋﯽ ﺟﻮاب ﻧﮩﯿﮟ دﯾﺎ ۔
ﺳﻮال: ﮐﯿﺎ ﯾہ درﺳﺖ ﮨﮯ ﮐہ اس ﺳﮣﯿﺞ ﭘﺮ ﻣﺮﯾﻀہ ﮐﺎBP 40/80 ﺗﮭﺎ ﺟﻮ ﮐہ shock ﻣﯿﮟ ﭼﻠﯽ
ﮔﺌﯽ ﻧﯿﺰ ﺑﯿﮩﻮﺷﯽ ﮐﯽ ﺣﺎﻟﺖ ﻣﯿﮟ ﺗﮭﯽ اور platelet 81,000 ﭘﺮ آﮔﯿﺎ ﺟﻮ ﮐہ اﯾﮏ اﻧﺘﮩﺎﺋﯽ ﺧﻄﺮﻧﺎک
ﺻﻮرﺗﺤﺎل ﭘﺮ اﮔﺌﯽ ﺟﻮ ﮐہ ﻗﺮﯾﺐ اﻟﻤﻮت واﻟﯽ ﺣﺎﻟﺖ ﻣﯿﮟ ﺗﮭﯽ آپ ﮔﮭﺮ ﭼﻠﯽ ﮔﺌﯽ اور ﺳﮣﺎف ﺳﮯ ﮐﮩﺎ
ﮐہ ان ﮐﮯ ﮔﮭﺮ واﻟﻮں ﺳﮯ ﮐﮩﻮ ﮐہ اﺳﮯ CMH ﻟﮯ ﺟﺎﺋﯿﮟ ؟
ﺟﻮاب: درﺳﺖ ﮨﮯ ﮐہ ﻣﯿﮟ ﮔﮭﺮ ﭼﻠﯽ ﮔﺌﯽ اور CMH ﮐﺎ ﮐﮩﺎ ﮐہ وﮨﺎں ﻟﮯ ﺟﺎﺋﯿﮟ اور ﺳﺎﺗﮭ ﮐﻮﺋﯽ
ڈاﮐﮣﺮ ﻧہ ﮔﺌﯽ دو ﻧﺮﺳﯿﮟ ﮔﺌﯽ ﺗﮭﯿﮟ۔
ﺳﻮال: ﮐﯿﺎ ان ﮐﮯ ﺷﻮﮨﺮ ﻧﮯ آپ ﮐﻮ ﻓﻮن ﭘﺮ درﺧﻮاﺳﺖ ﮐﯽ ﮐہ ﻣﺮﯾﻀہ ﮐﯽ ﺣﺎﻟﺖ اﻧﺘﮩﺎﺋﯽ ﺧﺮاب
ﮨﮯ آپ اﯾﮏ ﻣﺮﺗﺒہ ﺗﺸﺮﯾﻒ ﻟﮯ آﺋﯿﮟ؟
ﺟﻮاب: ﺟﯽ ﮨﺎں ﻓﻮن آﯾﺎ ﺗﮭﺎ ﻣﯿﮟ ﻧﮩﯿﮟ آﺋﯽ ﺑﻠﮑہ اﭘﻨﮯ ﺟﻮﻧﯿﺌﺮ ﺳﮣﺎف ﮐﻮ ان ﮐﮯ ﺳﺎﺗﮭ ﺑﮭﺠﻮا دﯾﺎ اور
ﻣﯿﮟ ﻣﺰﯾﺪ ﮐﭽﮭ ﻧﮩﯿﮟ ﮐﺮ ﺳﮑﺘﯽ۔
ﺳﻮال: آپ ﮐﻮ ﻣﺮﯾﻀہ ﮐﮯ ﺷﻮﮨﺮ ﻧﮯ CMH ﺳﮯ ﺑﮭﯽ ﻓﻮن ﮐﯿﺎ ﺗﮭﺎ ﮐہ ﻣﺮﯾﻀہ CMH واﻟﮯ
ﻧﮩﯿﮟ ﻟﮯ رﮨﮯ ﮨﯿﮟ آپ آﺟﺎﺋﯿﮟ؟
ﺟﻮاب: ﻣﯿﮟ ﻧﮩﯿﮟ آﺳﮑﺘﯽ CMH آپ ﻣﺮﯾﻀہ ﮐﻮ واﭘﺲ ﻟﯿﮉی ڈﻓﺮن ﮨﺴﭙﺘﺎل ﻟﮯ آﺋﯿﮟ ﻣﯿﮟ دوﺑﺎره
ﺳﺮﺟﺮی ﮐﺮﺗﯽ ﮨﻮں۔
:ﺳﻮال ڈاﮐﮣﺮ ﺻﺎﺣﺒہ آپ ﺑﮩﺖ ﮐﭽﮭ ﮐﺮ ﺳﮑﺘﯽ ﺗﮭﯽ اﭘﻨﯽ ﻧﮕﺮاﻧﯽ ﻣﯿﮟ آپ ان ﮐﻮ platelet دﯾﺘﯿﮟ
اور ﻻﺋﻒ ﺳﯿﻮﻧﮓ ڈرﮔﺰ دﯾﺘﯽ ﺗﺎﮐہ ﻣﺮﯾﻀہ ﮐﯽ ﺣﺎﻟﺖ ﻣﺰﯾﺪ ﺧﺮاب ﻧﮩﯿﮟ ﮨﻮﺗﯽ ﺟﻮ ﮐہ آپ اﯾﺴﺎ ﮐﺮﻧﮯ
ﺳﮯ ﻗﺎﺻﺮ رﮨﯿﮟ۔
ﺟﻮاب: اس ﮐﮯ ﺟﻮاب ﻣﯿﮟ ڈاﮐﮣﺮ ﺻﺪف ﻧﮯ ﮐﻮﺋﯽ ﺟﻮاب ﻧہ دﯾﺎ۔
ﺳﻮال: اس ﻧﺎزک ﺣﺎﻟﺖ ﻣﯿﮟ آپ ﻣﺮﯾﻀہ ﮐﻮ ﭼﮭﻮڑ ﮐﺮ ﮔﮭﺮ ﭼﻠﯽ ﮔﺌﯿﮟ آپ ﮐﺎ ﯾہ ﻋﻤﻞ ﮐﯿﺎ
professional negligency/medical negligency ﭘﺮ ﻧﮩﯿﮟ آﺗﺎ؟
ﺟﻮاب: اس ﭘﺮ ڈاﮐﮣﺮ ﺻﺎﺣﺒہ ﻧﮯ ﮐﻮﺋﯽ ﺟﻮاب ﻧﮩﯿﮟ دﯾﺎ ﺑﻠﮑہ ﮐﮩﺎ ﻣﯿﮟ رﯾﮑﺎرڈ دﯾﮑﮭ ﮐﺮ آﺗﯽ ﮨﻮں
اور اﮢﮭ ﮐﺮ ﺑﺎﮨﺮ ﭼﻠﯽ ﮔﺌﯿﮟ ﺗﮭﯽ۔
ﺳﻮال: ﮐﯿﺎ اس ﻣﺮﯾﻀہ ﮐﯽ ﻣﻮت ﺳﮯ ﻗﺒﻞ ﺑﮭﯽ آﮢﮭ 8 ﺣﺎﻣﻠہ ﺧﻮاﺗﯿﻦ ﮐﯽ اﻣﻮات ﮨﻮﯾﺌﮟ ﺗﮭﯿﮟ ﺗﮭﯽ
آپ ﮨﯽ دور ﻣﯿﮟ؟
ﺟﻮاب: ﺟﯽ ﮨﻮﺋﯿﮟ ﺗﮭﯿﮟ اس ﻣﻮﻗﻊ ﭘﺮ ﻣﻌﺰز ﻣﻤﺒﺮ زﮐﺮﯾﺎ ﮐﺎﺳﯽ ﺻﺎﺣﺐ ﻧﮯ ﭘﻮﭼﮭﺎ ﮐہ ڈاﮐﮣﺮ
ﺻﺎﺣﺒہ ان 8 ﺧﻮاﺗﯿﻦ ﮐﯽ اﻣﻮات ﮐﮯ ﺑﺎرے ﻣﯿﮟ ﮐﻮﺋﯽ رﯾﮑﺎرڈ ﻣﻮﺟﻮد ﮨﮯ ڈاﮐﮣﺮ ﺻﺎﺣﺒہ ﻧﮯ ﮐﮩﺎ ﮐہ
ﺟﯽ ﮨﺎں اور ﯾہ ﮐﮩہ ﮐﺮ ﮐﻤﺮے ﺳﮯ ﭼﻠﯽ ﮔﺌﯽ اور اس ﺑﺎﺑﺖ ﮐﻮﺋﯽ رﯾﮑﺎرڈ ﭘﯿﺶ ﻧﮩﯿﮟ ﮐﯿﺎ"۔
Petitioner appeared as her own witness and admitted it correct that, she was summoned along
with the respondent, his relative and counsel by the inquiry committee and she had filed reply of the complaint. (Q. No. 79). She also admitted it correct that, she had tendered written resignation and had gone through the same as well. (Q. No. 83). Petitioner, however, denied the suggestion that she, in her resignation, left the post of MS because of domestic engagements. (Q. No. 84). The Administrator LDH appeared as PW- 14 and produced the resignation of petitioner dated 29
October 2018 as Ex.P/14- L. The relevant therein is reproduced hereunder:
“As I am facing family issues, therefore, I am unable to continue.
In the circumstances I tender my resignation which may kindly be accepted within 24
hours.”
The PW- 14 was cross -examined and he was put a suggestion that petitioner had tendered
resignation because of domestic engagements. (Q. No. 14). The legality of inquiry proceedings (Ex.P/14- D) was not challenged in cross -examination. Therefore, petitioner contention that she
resigned because of pressure was totally baseless and after thought. Petitioner in her cross -
examination further admitted it correct that she had not initiated any legal proceeding against the Hospital Administration (Q. No. 86).
20. The afore discussed facts transpire that inquiry was initiated and charges against the
petitioner were impartially investigated, petitioner had filed written reply and she was examined. The inquiry committee was comprised upon two gynecologists and two members of the Management Committee. Petitioner was awarded fair opportunity and she had never raised any objection upon formation of the inquiry committee and its proceeding and even on its findings
that, because of mismanagement, negligence and recklessness prior and after delivery and surgery, death of patient occurred which was the direct cause of the petitioner’s mismanagement and negligence. Petitioner had not managed and taken care of the deceased as a professional skilled medical person showing even no reasonable skill in managing ordinary case of delivery.
21. The brother of patient appeared as PW- 15 and deposed that after delivery, petitioner told
about some complications and obtained consent of respondent for a stitch. Later, petitioner went
home. Again, complication arose and petitioner was called through staff nurse, however, she refused to come back the hospital rather told that the case is now out of her hand and unmanageable and to take the patient to some other hospital or CMH and she assured that she
has spoken with the management of the CMH and associated her staff nurses, however, the CMH
declined to admit the patient. Petitioner was contacted and, requested to come and convince the
staff of CMH, however, she refused; as such, in compelling circumstances, patient was to be shifted to SPCH. The PW -15 denied that while shifting, the patient was in senses and her
condition was stable (Q. No. 33). In reply of question No. 39, the PW -15 stated that they
remained in the CMH for about 5/6 hours and in the meanwhile, the patient was lying on stretcher in the emergency ward. The PW -15 further stated that during the said 5/6 hours, the
CMH’s staff neither administered any injection to the deceased nor examined her blood pressure (Q. No. 40). While replying question No. 41, the PW -15 stated that, I exhibited the patient’s file
to a ward boy present there, voluntarily stated that they asked for calling the petitioner. Petitioner’s learned counsel put question No. 44 to the PW -15, which he replied as under:
“44. It is incorrect that my sister condition became critical because of lying on a stretcher for six hours, voluntarily stated that her condition was already critical.”
The examination of PW -15 shows that after surgery, petitioner went home and did not come
back despite calling her by the staff nurse. Petitioner could not throw away her responsibility after performing the operation upon others and could not skip her responsibility. When petitioner had not arranged admission of the deceased to the CMH, then shifting of the patient in such critical condition was nothing but a professional negligence and the patient was lying without
any medical aid in the CMH.
In her written statement, petitioner had pleaded that a duty Medical Officer and the OT nurses were deputed for shifting the patient, however, the name of Medical Officer and OT nurses were not mentioned in the pleading nor examined them as DWs. OT nurses left behind by the petitioner were not substitute of a qualified doctor who could handle serious patient. Despite having long professional record, petitioner could not save the deceased. Said fault of not leaving a doctor behind to look after the deceased was obviously on the part of petitioner.
22. Syed Abdullah, Advocate (PW -18), a chamber fellow of respondent was examined to
give the conduct, psychological as well as mental, of the respondent after the death of his lady
wife. He stated that respondent is now patient of sugar and thyroid.
Finally respondent appeared as his own witness. Trial Court allowed him to testify through affidavit. He was cross -examined at length but could not be shattered.
23. In rebuttal, petitioner examined Fayyaz Muhammad, Office Superintendent at LDH as
DW-2 who also produced antenatal record of the deceased as Ex.D/3 -A. Petitioner claimed that
she had obtained formal consent of respondent in writing for Hysterectomy, however, signatures of respondent in column No. 4 and at the bottom of Ex.D/3- A are quite dis -similar which were
compared in the presence of learned counsel of both sides under Article 84, the Qanun- e-
Shahadat Order -X, 1984 (‘the QSO’). Respondent’s signature is available at the bottom of the
Ex.D/3- A, whereby he had expressed consent of one stitch. The denied signature is dis -similar
with the admitted one. Hence, petitioner also failed to prove that she had removed the uterus of
deceased with the consent in writing of the respondent. The Ex.D/3- A was subsequently altered
and the handwritings on the admitted signature and disputed signature are quite dis -similar.
The anesthesia notes (Ex.D/6) states that patient was looking pale due to vaginal/uterine bleeding. The DW -2 was not author of Ex.D/7, as such, he could not give rational answers in
relation to such exhibit.
24. Petitioner examined Dr. Zaib -un-Nisa who appeared as DW -4. She deposed that
petitioner is remarkable Gynecologist and if a patient losses platelets below 50,000, such patient
is transfused blood. Where a patient started bleeding after normal delivery, patient is administered medicines and treatment of uterine massage and administered miso -oxytocim
injection and if bleeding is not stopped then uterus is removed which is last option. Rest of her examination in chief do not relate to the matter in issue. In cross -examination she admitted it
correct that deceased never remained under her care (Q. No. 2). She admitted that on 09 September 2018, petitioner had not called her at the LDH (Q. No. 10). She further admitted that, ‘where blood oozing is continuing after removal of uterus, Gynecologist is under obligation to shift the patient to a hospital having facility of ICU for saving the life of the patient.’ (Q. No. 16). While replying question No. 18, she admitted that, ‘condition of patient is extremely serious and duty doctor makes a phone call from the hospital and informs the doctor that patient’s condition is serious and to visit but if doctor doesn’t come, it is his professional negligence.’
25. Dr. Sakina Naeem appeared as DW- 5 and testified that petitioner is an experienced
Gynecologist in the Balochistan. She commented upon the procedure administered before and after removal of uterus. She further testified that in LDH, ICU facility and blood bank facility are not available. She always found the petitioner as a kind and sincere doctor and she has never performed her job with negligence. In her cross -examination, she admitted it correct that, ‘a
doctor should not perform surgery if hospital has no ICU facility and patient condition is serious and if performed, she will be guilty of professional misconduct’ (Q. No. 20). She admitted that, she was not called by the petitioner in the delivery case of deceased (Q. No. 24). She also admitted it correct that, deceased never remained under her care. (Q. No. 25).
26. Finally, petitioner appeared on oath and testified that she joined SPCH in 1991 as
Gynecologist and performed as Gynecologist at Quetta for 30 years and in this period she treated
worse cases and served the people day and night and got retirement in 2014. The Management
Committee of LDH recommended her appointment on merit as Senior Gynecologist/M.S on two
years contract period, which was extended for three times and on the basis of performance. She
was awarded Excellency Award. Also testified that she started treatment of the deceased from
5th month of pregnancy. On 09 September 2018, patient was admitted to the hospital and after
pre-delivery procedure; she came to know that her platelet count was 101,000, as such, instructed
for transfusion of 2 pints fresh blood. The patient gave birth to a baby through normal procedure and both were stable and the patient was kept under observation for two hours and she was
consistently examined. After two hours, she received call from the hospital that patient is
bleeding. She came back and also called her neighbour Dr. Zaib Bibi who had examined the
patient before her arrival. With consent of her husband, the patient was shifted to the O.T. The anesthetist was called and after examination, it was found that the uterus was not contracting and
was relaxed, which caused bleeding. Injections were administered. The uterus was massaged and
packed and blood was transfused so that surgery might be avoided. After half hour, the uterus
was not contracted and patient was bleeding, as such, after consultation, they decided that since
there is no alternate for saving the life of patient save the surgery for removal of uterus. As such,
arranged further blood and administered injections and removed the uterus. Since ICU facility
was not available at LDH, as such, they shifted the patient to the recovery room and thereafter
did the CBC test of the patient. The platelet count of patient was 81,000. Patient was under the
observation and in her absence; Dr. Tabassum also treated and examined the patient, who is also
Gynecologist in the LDH. After one and half hour, the wound was oozing. They decided for
shifting the patient to the CMH so that she be admitted to the ICU. She requested D.M.O of
CMH, Dr. Zubair and informed him about the serious condition of the patient. Patient was
shifted to the CMH along with the qualified doctors. Later, it was revealed upon that CMH had
not admitted the deceased and referred to the SPCH but she couldn’t be stable. According to the
petitioner, the deceased should not have been shifted to Karachi through Air Ambulance as her
blood pressure was considerably low. When patient was shifted to the CMH, she was stable and
responsive and she was not negligent in the patient’s treatment. She was neither summoned by
the Management Committee nor in such inquiry, expert was associated. Inquiry Committee
prepared a partial report against her. During her cross -examination, petitioner admitted that, she
had not transfused platelets before and after the delivery and at the time of surgery. Further stated that she had not called any senior surgeon for assistance and advice (Q. No. 20). She
admitted that she couldn’t produce Dr. Tabassum, Dr. Iqbal and Dr. Zaib as witnesses. She also
admitted that she couldn’t produce the nurses Shaista and Mariam. In reply of question No. 44,
petitioner stated that bleeding starts when platelet count is below 50,000. She also admitted that
bruises on the body of patient is sign of low platelets, voluntarily stated if such count downs
below 50,000. She further admitted that patient was shifted to SPCH from CMH as they had
refused to treat the patient.
27. What has been discussed and observed above is concluded as under: -
(a) petitioner failed to heed that the deceased had a low platelet count and to consult or to
have due regard for the medical record of the deceased;
(b) petitioner failed to do or have done any blood investigation;
(c) petitioner failed to have any or any sufficient quantity of platelets on hand in the event of
any need for such platelets and, particularly, so in the instant case as the deceased was a known
low platelets count;
(d) petitioner failed to administer any or any sufficient medication to stop the bleeding;
(e) petitioner failed to take immediate or any reasonable steps to stop the post partem
haemorrhage once it had started;
(f) petitioner failed to exercise all due care and diligence in the treatment of deceased in all
circumstances of the case; and
(g) petitioner voluntarily resigned from the position of M.S, LDH to avoid her termination
because of professional negligence.
28. Petitioner’s learned counsel stated that apart from petitioner, other doctors and paramedic
staff had also assisted the petitioner, but they were not made a party in the suit, therefore, no
direct liability could be imposed only on the petitioner. In her written statement, petitioner had
not mentioned the names of doctors and paramedic staff, who had allegedly assisted the petitioner while operating the deceased, as such, they couldn’t have been impleaded in the suit with the petitioner to share the carelessness of petitioner, therefore, the objection is without any legal substance. Petitioner cannot defend her negligence behind the doctrine of vicarious
liability. Though, the LDH was equally liable for the negligence of petitioner and it couldn’t be
exonerated from its liability in relation to the negligence of petitioner on the ground that an
inquiry was conducted in which it was recommended that petitioner’s services should be terminated (Management Committee had extended petitioner’s contract). The Management Committee of the LDH had never bothered to provide ICU facility in the LDH. If the ICU facility would have been available, the deceased might had survived, therefore, hospital was vicariously liable for the negligent act of the petitioner, LDH’s authority must use care in carrying on the hospital and was liable for the acts and omissions of its Surgeons, Physicians and Nurses. The petitioner was not employed by the deceased but by the LDH, therefore, hospital could be vicariously liable for the acts of its functionaries. Petitioner was the agent of hospital. LDH was not expected such kind of treatment. Hospital is to be maintained properly to save the human life and not to kill the patient for want of essential medical equipments need at the emergency stage. LDH liability towards the respondent was co -extensive with the petitioner.
Reliance is placed on the case reported as Government of Punjab v. Salamat Ali Khan (PLD 1991 SC 699), however, the LDH was not impleaded in the suit. Despite non- joinder of LDH,
the petitioner was/is still liable for her negligence. In the case reported as Rahat Ali v. Saeeda Begum (2002 CLC 96), it was held that if there are more than one tort feasor, all are jointly and
severally liable, however, it is a prerogative of the plaintiff to institute suit against the principle wrong doer alone or join other tort feasors as well, relevant therein is reproduced hereunder:
“Even otherwise, if there are more than one tortfeasor, all tortfeasors are jointly and severally liable. It is prerogative of the plaintiff to proceed against the principal wrongdoer alone or join other tortfeasor as well. If the defendant considered that hospital or the nursing staff were responsible or liable to make good the loss or damage she was exposed to, there was no impediment in her way to have joined them as a party by invoking Order 1, Rule 10, C.P.C., now it is too late in the day to extend such an arguments. Defendant may, subject to limitation, recover such amount from the hospital or other person who may, if at all, be vicariously liable for her act of omission and commission. Evidence of plaintiff has gone unrebutted. Under the circumstances, the issue is decided in affirmative.”
So far as conduct of post mortem examination of the deceased is concerned, post mortem of the deceased was not conducted, however, the cause of death was Post Partum Haemorrhage (P.P.H). P.P.H is when a woman has profuse bleeding after giving birth. Exhibits hereinabove discussed confirmed that deceased had low platelet count. As such, P.P.H also occurs if patient has a blood clotting disorder (Cleaveland clinic, https://my.cleavelandclininc.org.) Petitioner
being a professional, cannot be said, was unaware of the consequential risk factor as nothing had happened all of a sudden. She cannot take refuge that post mortem was not conducted. I place reliance on the maxim ‘Res ipsa loquitur’ that, situation would speak for itself. In view of admitted features of the case, post mortem was not necessary to be performed for the known cause of death of the deceased.
Where a professional like a doctor acts negligently and in a manner which is unbecoming of a
medical practitioner then an action in torts for claiming compensation and damages would be maintainable. Reliance is placed on the case reported as Achutrao Haribhau Khodwa v. State of Maharashtra (1996 PSC 1200). The relevant therein is reproduced hereunder:
“17. In cases where the doctors act carelessly and in a manner which is not expected of a
medical practitioner, then in such a case an action in torts would be maintainable. As held in Laxman’s case (supra) by this Court a medical practitioner has various duties to wards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor.”
Thus, respondent has established petitioner’s negligence.
29. In the law of torts, damages are of numerous kinds but for the purpose of instant case, the
relevant are general damages and special damages. General damages are implied or presumed, to have accrued to the plaintiff from the wrong complained of as they are direct result from the wrong. Special damages are those which are actual but not the necessary outcome of the injury complained of, which should be specifically pleaded under Order VI rule 2, the CPC and proved. The wrong done to the plaintiff must be proved to be the immediate result of the act of negligence attributed to a defendant, which has been proved by the respondent. Reliance is placed on the case reported as Mrs. Aalia Tareen v. Amanullah Khan (PLJ 2005 SC 645). The relevant therein is reproduced hereunder:
“10. Damages in the Law of Torts are of numerous kinds but in the instant case the
kinds relevant are general damages and special damages. Black’s Law Dictionary Fifth
Edition at pages 353 & 354 defines the terms general damages as, without reference to the special character, condition, or circumstances of the plaintiff”, the general damages are implied or presumed to have accrued from the wrong complained of, for the reason that they are its immediate, direct, and proximate result, or such as necessarily result from the injury, or such as did in fact result from the wrong, directly and proximately.” The term special damages is defined as “Those which are the actual, but not the necessary, result of the injury complained of, and which in fact follow it as a natural and proximate consequence in the particular case, that is, by reason of special circumstances or conditions.” Such special damages must be specially pleaded and proved. This brings us to the conclusion that in a suit for damages, the wrong immediate, direct and proximate result of the act or acts of negligence done to the plaintiff must be proved to be the attributed to the defendants.”
30. Under Article 25, the QSO, in suits in which damages are claimed, any fact which will
enable the Court to determine the amount of damages which ought to be awarded, is relevant.
Special damages (pecuniary compensation) are awarded to reimburse the actual expenses
incurred and not to make profit out of injury. The respondent had not pleaded special damages to
have accrued from the negligence of petitioner neither led any evidence therefor. Hence, special damages couldn’t be implied or presumed. So far as general damages are concerned, respondent
has pleaded his sufferings in para Nos. 10, 16, 17 and 18 of the plaint. Respondent had pleaded that he lost his wife at the age of 35 years and he would have to take care of his minor children, therefore, being a professional lawyer, his performance has been badly effected. Such portion of
plaint relates to special damages, which were neither specifically pleaded nor proved, therefore,
respondent has no case at all for claiming special damages. General damages (non -pecuniary
losses) are discretionary in nature for which it is not possible to lay down yardstick, which
should be compensatory in nature and not punitive. Respondent’s wife died after surgery, the
cause of which in fact was recklessness before and after delivery and surgery which resulted into the death of respondent’s wife, who was admittedly in good condition of health. Such gross negligence couldn’t be expected from a professional like petitioner, whereby one precious life of a lady of 36 years was lost, which cannot be estimated in terms of money, therefore, whatever compensation in terms of money is awarded, the same would not re -compensate the loss caused
to the family of the deceased. However, as hereinbefore observed, compensation in terms of general damages are compensatory in nature and not punitive, therefore, damages of Rs. 500,00,000/ - imposed by the subordinate Courts were not proper. The damages awarded by the
subordinate Courts are extremely high and more punitive than compensatory. Pain and mental torture couldn’t be measured in terms of money and the compensation awarded on these counts is just a solatium. Reliance is placed on the case reported as Atta Muhammad Khanzada v.
Muhammad Shirin (1996 CLC 1440). The relevant therein is reproduced hereunder:
“12. As to compensation by way of damages, we are of the view that the amount
awarded by the learned Trial Court is inordinately high and more punitive than
compensatory. In a suit for recovery of damages based on personal injury the damages
consist of two parts, namely, special damages and general damages. The special
damages are required to be pleaded specially and proved and are capable of exact calculation. The general damages are not specially pleaded but are implied and include compensation for pain, torture and suffering etc. and for want of a yardstick are
measured by applying the principle of ‘Rule of Thumb’ -having regard to the
circumstances of the case. The respondent has not produced any documentary evidence
in regard to the expenses incurred by him on his treatment, therefore, he is entitled to get general damages only. He is 73/75 years of age and is leading a normal life. The eye which he has lost was already affected by some disease and its loss has neither impaired the quality of his life nor shortened expectation of his life or entailed any loss of
earnings, The factors to be kept in view for assessing the general damages are thus
confined to pain, mental torture and shock which the respondent had suffered of the
hands of the appellant. In this backdrop compensation to the tune of Rs. 50,000 seems
adequate. It is scarcely necessary to mention that pain and mental torture cannot be
measured in terms of money and the compensation awarded on these counts is just a
solatium. The findings of the learned Trial Court on Issue No. 11 are thus modified
accordingly with, the result that the plaintiff is entitled for a decree in the sum of Rs.
50,000.”
31. For the foregoing reasons, the concurrent findings of the subordinate Courts that
petitioner’s negligence caused death of respondent’s wife do not suffer from any error of law and
of jurisdiction nor the same suffers from any misreading or non- reading of evidence; as such,
they are upheld. However, so far as award of rupees 50 million to the respondent is concerned, in this regard the impugned judgments are brief and non- speaking. The subordinate Courts have
ignored the law on the subject of general damages, therefore, to such extent, the impugned
judgments require modification. Case laws cited by petitioner’s learned counsel is distinguishable.
32. For what has been discussed above, this civil revision petition is partly allowed and the
impugned judgments and decrees are modified to the extent that respondent’s suit is decreed to a
sum of Rs. 1,000,000/ - as general damages to be paid by the petitioner to the respondent along
with costs of proceedings.
Decree sheet be drawn.
(Y.A.) Civil revision partly allowed.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,
let us know.