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Petitioner: SAJID AHMED ANSARI VS Respondent: AGA KHAN UNIVERSITY HOSPITAL through Chairman, JUDGMENT
Court Name: Sindh High Court Judge(s): Khilji Arif Hussain Title:SAJID AHMED ANSARI vs AGA KHAN UNIVERSITY HOSPITAL through Chairman,
JUDGMENT
Reported As: PLD 2008 Karachi 80 Result: Suit dismissed Judgment JUDGMENT ' KHILJI ARIF HUSSAIN, J.---Plaintiff filed pauper suit for recovery of Rs,50,00,000 on account of damages for personal injury against the defendants/respondents on 19-4-1992. ' Brief facts of the case for the purpose of deciding listed suit as per memo. Of plaint are that plaintiff was a building contractor and on 24-9-1990 at about 8-30 a.m. The applicant/plaintiff during process of construction work met with an accident of electric shocks affecting thereby burns on three fingers of right hand, the heel and the thumb of right leg including stomach's skin. At 1215 p.m. On the same date applicant/plaintiff was taken to Abbasi Shaheed Hospital by his sister where the burns specialist diagnosing the burns of minor nature, curable by usual ordinary course of treatment provided with first aid and prescribed some medicines and also advised to take complete rest either in hospital or at home. As per desire of the applicant/plaintiff he was discharged from the hospital on the same date at 2-45 p.m. For rest at home. The applicant was taken to Aga Khan University Hospital (AKUH) defendant No,1 as a better place than home for rest and medical care. The respondents/defendants 1 to 8 did not inform the applicant that they do not have any burns department and also the service of burns specialist/anatomist, admitted the applicant in the hospital and asked the sister of the applicant to deposit a sum of Rs,1,00,000 immediately however a sum of Rs,80,000 was deposited. It was alleged that without disclosing allusively the intention and or the manner of the treatment and without availing the permission of the applicant/plaintiff or consent of his sister present outside the room and quite in contra to the opinion of Abbasi Shaheed Hospital having no symptoms and or indication of high blood sugar level and/or gangrene without the supervision and consultation of any burns specialist/anatomist,
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dishonestly, wilfully, deliberately, negligently and ruthlessly imputed the right limb/arm and leg in such a quackish manner as leaving no space for the fixture of artificial organs and or even Besakhai by defendants/respondents Nos.2 to 6. The plaintiff's hand and leg were again imputed by defendants but they did not touch affected burnt part of the stomach's skin and applicant was discharged from the hospital on 27-10-1990. It was stated that applicant after discharge made complaint to the management of Aga Khan Hospital for their worthless, negligent acts to which Dr. Yousaf Kamal Mirza along with other doctors visited the house of the applicant/plaintiff consoled him and tendered unconditional apology but same was not accepted by the applicant for the reason that respondents/defendants Nos.1 to 8 did not agree to handover the imputed parts of the right hand and leg of the applicant/plaintiff. The applicant served a legal notice, dated 7-11-1991 which was responded by the respondents on 4-12-1991 and thereafter filed suit claiming a sum of Rs,50,00,000 as damages including hospital bill of AKH, medicines and other expenses, earning of his for another 25 years, maintenance of wife, love and affection to the daughter and her marriage expenses. ' The defendant No,1 in his written statement denied various allegations made in the memo. Of plaint while specifically denying that there was any negligence on the part of the defendant- Hospital while treating the plaintiff. The defendant No,2 also filed written statement and denied that there was any negligence on her part while she had performed the operation. It was specifically stated in the written statement that despite plaintiff was informed that AKUH did not have formal burns unit plaintiff and his family members insisted and pleaded that the plaintiff should be admitted and treated at defendant' No,1 hospital. Plaintiff was found to be suffering extensive electric burns following contact with high voltage (11,000 KV) live wire. He was in significant pain and immediate resuscitative and other measures were commenced in the Emergency Room. The plaintiff's right-hand, part of his right foot were completely charred. The defendant No,2 explained plaintiff and his wife and nephew, the need to amputate the charred right hand and right foot and need to possibly ampute the right forearm and leg. It was also informed to the plaintiff and his family members that extent of electric burns are not evident on the first day and that full extent of the injury became evident in due course of time. Prior to operation, consent from the wife of the plaintiff was taken in which she expressly consented to the possible amputation of the right forearm and right leg. ' On the basis of the pleadings following issues are framed: (i) "Whether the suit is barred by Article 22 of the Limitation Act, 1908? (ii) What medical treatments were provided to the plaintiff during his stay with the defendants' hospital? (iii) Whether the defendants acted negligently in operating upon the plaintiff and by imputing his right leg? If so, to what extent? (iv) Whether plaintiff suffered any pecuniary loss/damages, as a result of alleged negligence on the part of defendants? If so, up to what extent? (v) Whether the plaintiff is entitled for any relief? (vi) What should the decree be?" ' The plaintiff appeared in the witness-box and during cross-examination produced consent letter for operation as Exhs.5/1 and 5/2. On behalf of the defendants, defendant No,2 filed affidavit in evidence (Exh.6) and produced confidential medical report as Exh.6/1. Witnesses were cross- examined by the learned Advocates for the respective parties. ' Heard Mr. Rizwan Ahmed Siddiqui, learned counsel for the plaintiff, and Mr. Liaquat Merchant, learned counsel for the defendants/respondents. ' Mr. Rizwan Ahmed Siddiqui, learned counsel for the plaintiff, argued that since the defendant No,1 Hospital has no Burnt Unit Ward they ought to have not admitted the plaintiff and by admitting the
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plaintiff in their hospital and thereafter operating in the absence of Orthopaedic Surgeon and Cardiac Surgeon by the defendant No,2 who is also not expert surgeon to deal with the burnt cases is liable for damages claimed in the suit. It was contended that operation was carried out without any medical tests. ' Mr. Rizwan Ahmed Siddiqui, learned Advocate for the plaintiff, further argued that written statement filed on behalf of defendant No,1 cannot be accepted as same was filed without any authority from the defendant No,1 hospital and further defendant No,2 was not authorized by the defendant No,1 to give evidence on their behalf. There is no evidence from the side of defendant No,1 in rebuttal and applicant/plaintiff suit, therefore, should be decreed as prayed. ' In reply to the issue that the suit is barred by time. It was contended by the learned Advocate for the plaintiff that the cause of action in the suit is continuation cause of action governed under section 23 of the Limitation Act and suit can be instituted at any time. Learned Advocate in support of his contention relied upon the case of Said Wali v. Ahmed Saeed and 5 others 1970 SCM R 623, Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another, PLD 1983 SC 5, R.B. Industries Ltd. v. Employees' Welfare Union and another, PLD 1983 SC 15, Farrukh Saeed Khan v. Ianir-ur-Bhatti, SBLR 2006 Sindh 231. ' On the other hand, Mr. Liaquat Merchant, learned Advocate for defendants/respondents Nos.1 to 8 taken me to Confidential Medical Record produced by defendant No,1 through his affidavit in evidence and duly exhibited as Exh.6/1 and argued that plaintiff was not advised by Abbasi Shaheed Hospital according to the plaintiff there was a complete Burn Unit that the burns are of minor nature and advice to take rest at home, but he was advised to be admitted in the hospital, however, on the request of the plaintiff as he wanted to be admitted in some other hospital and he was discharged from the said hospital. The plaintiff thereafter approached the defendant No,1 hospital where he was informed that there is no dedicated burn unit, plaintiff despite such information got himself admitted in the hospital and operation in view of the nature of the case was undertaken first with the consent of the plaintiff's wife and other with the consent of nephew of the plaintiff and the plaintiff himself. It was argued by the learned Advocate for the defendants/respondents that defendant No,2 is a senior surgeon and dealt with burn cases successfully during her professional career and there is no evidence on record that defendant No,2 or any other defendants while performing their duties acted in a negligent manner and possible measures have been taken by the defendants to save the life of the plaintiff forearms have to be imputed without taking necessary measures as required under the circumstances. It, was contended by the learned Advocate for the defendants that orthopaedic surgeon associated with the defendant No,2 at the time when the arm was unarticulated along with other doctors at the time of operation. Learned Advocate drawn my attention to the statement made by defendant No,2 during her cross-examination that right arm and right leg totally barbecued. The plaintiff was brought in the hospital as a third degree burnt patient and all steps were taken to avoid imputation but to save the life of the plaintiff, it became necessary to remove dead and necrotic tissues from the body,' ' In reply to a question that in medical science 'dry gangrene' should have been kept dry, the defendant No,2 denied the same and said that gangrene cannot be converted into dry, it occurs on its own. When a tissue is gangrenous, it is obvious that there is no blood supply. Defendant No,2 in her evidence stated that, before consent was taken on document about the operation, a preliminary consultation in every case is held between the concerned surgeon and the patient in which surgeon explains the nature of the operation and in the instant case also said consultation was done by her before undertaking first operation, when the patient was in operation theatre and the family members of the patient categorically informed that there was no way but to remove
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gangrenous parts immediately to which the family members including the patient replied that they were interested in the life of the patient. ' In reply to a question, "when visual expertise observed that the right hand and the right leg of the plaintiff were totally barbecued and gangrenous then why did not choose to operate on the very first day instead of taking five days and five operation." Answer, in electrical burns the electric current is converted into heat. This is called the Joule effect. The tissues that retain the heat continue to emit that heat over the subsequent days and, therefore, what appears apparently viable changes over the next few days and may render potentially viable tissues at day one into non-viable over subsequent days. That is why an immediate decision on day one is never taken to decide about the level of amputation. ' After taking me to the evidence on record that there was no negligence on the part of hospital and doctors in discharging of their duties and every possible cares have been taken Mr. Liaqut Merchant argued that the suit on the face of it is barred by time. Under Article 22 of the Limitation Act the suit for compensation or any other injury to the person has to be filed within one year. The plaintiff was discharged on 27-10-1990 whereas suit was filed on 19-4-1992 i,e, after one year five months and 23 days is barred by time and liable to be dismissed. Learned Advocate in support of his contention relied upon case Abdulla Muhammad Jabli v. Abdulla Muhammad Zulaikhi, AIR 1924 Bombay 290, and Azizan Nissan Khatoon v. Abdul Hussain Bhuiya and others, PLD 1958 Dacca 8. ' I have taken into consideration respective arguments advanced by the learned Advocates for the parties, perused the record. ' Issue No,1: The defendant has taken the plea that the suit is barred by Article 22 of the Limitation Act, 1980. I will deal with this issue first. ' On 24th September, 1990 plaintiff met with an accident of electric shocks and taken to Abbasi Shaheed Hospital and then on the same day he was admitted to AKHU defendant No, 1 . The plaintiff was first operated on the same date i,e, 24-9-1990 and amputation of the right forearm at 2.5 distal to the elbow joint and a right below knee amputation 20 c.m. From the knee joined was performed with plans to revisit a final level of amputation to be determined once a clear line of demarcation between viable and dead tissue was obvious over the next few days. Final amputation was performed on 4-10-1990 disarticulation through right shoulder and an above knee amputation was performed as same appeared to be the level at which viable tissues were identified and plaintiff was discharged from the hospital on 27-10-1990. ' The question which required consideration is that, whether Article 22 of the Limitation Act, 1908 is applicable to facts of the case or section 23 of the Limitation Act, 1908 is applicable wherein it is provided that in the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation being to run at every moment of the time during which the breach or the wrong, as the case may be continued. ' Mr. Rizwan Ahmed Siddiqui, learned counsel for the plaintiff, contended that since plaintiff forearm and leg amputed in a negligence manner by the defendants it is continued cause of action and as such plaintiff's case covered by section 23 of the Limitation Act, 1908. ' Admittedly plaintiff was admitted in hospital on 24-9-1990 when he was operated and his right forearm at 2.5 distal to the elbow and 20 c.m. From the knee was amputated. He was again operated thereafter on 4-10-1990 and disarticulation through right shoulder and an above knee amputation was performed. The plaintiff was discharged from the hospital on 27-10-1990. The act of disarticulation of arm and above knee amputation was completed on 4-10-1990 which is the date when cause of action acquired to plaintiff or at best on 27-10-1990 when he was discharged from the hospital and such cause cannot be termed as continuation cause of action within the terms of section 23 of the Limitation Act.
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' In the case of Abdulla Muhammad Jabli (supra), a suit for damages resulting from injury caused to plaintiff through sulphuric acid which cause injury resulting in the loss of his one eye on 6th September, 1920. The injured person filed suit on 13-2-1992 and while dealing with the question that the suit is barred by limitation the injured person alleged that it was continuing wrong within the meaning of section 23 of the Limitation Act, as argued by Mr. Rizwan Ahmed Siddiqui in this case, the learned Judge held that same is not make wrong as continuing wrong within section 23 of the Limitation Act and held that:---- "Now as I have said, this is a suit for compensation for injury to the person, and under Article 22 of the First Schedule of the Limitation Act, time begins to run in the words of the Article "when the injury is committed" and a suit for compensation must be brought within one year from that time. In this case on the plaint itself it is apparent that in all substance the injury was committee on the 6th September, 1920 for plaintiff's one was destroyed on that date and the suit, therefore, is not brought within the time prescribed by the Article. I see no justification for reading Article 22 in any other sense than that which I have indicated. Here on the plaint itself there plainly was a cause of action at the very date of the assault that is to say September 6th, 1920, and therefore, the plaintiff was bound to bring his suit within one year from the date. This he has failed to do, and that unless he can escape in any way from the operation of that Article, his suit must be dismissed as time- barred." ' In the case of Azizan Nessa Khatoon (supra), PLD 1958 Dacca 8, learned Judge would like to reproduce the quotation from the case of Khair Muhammad Khan and another v. Mst. Janet and others, AIR 1940 Lah. 359 as under:--- "In considering whether the particular act complained of constitutes a "continuing wrong" within the meaning of section 23 for which the cause of action arises in de die in diem it is necessary to keep in mind the distinction between an "injury" and the "effect of injury". Whether the injury complained of is complete on a certain date, there is no injury might continue. In such a case the cause of action to the person injured arises, once and for all, at the time when the injury is inflicted, and the fact that the effects of the injury are felt by the aggrieved person on subsequent occasions, intermittently or even continuously does not make the injury a "continuing wrong so as to give him a fresh cause of action on each occasion. If however the act is such that the injury itself is continuous then there is a "continuing wrong" and the case is governed by section 23. As observed by Mukherjee, J, in 31 IC 242 the essence of the continuing wrong is that"the act complained of creates a continuing source of injury and is of such a nature as to render the doer of it responsible for the continuance; in such case a fresh cause of action arises de die in diem. To put the matter in another way, where the wrongful act produces a state of affairs every moment's continuance of which is a new tort, a fresh cause of action for continuous lies." ' In the case of Syed Niamat Ali and 4 others (supra) PLD 1983 SC 5, it was held that:-- "In the case of continuing wrong each successive invasion of the plaintiff's right or the continuing invasion resulting in a continuous injury, furnishing a recurring cause of action so that even if a suit filed in respect of such wrong is once abated, the subsequent suit is not filed on the same cause of stricto sensu although it may be filed on a similar cause of action. But if the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue." The principle laid down in above referred case fully supports the case of the defendant that act of disarticulation of the arm and above knee amputation was completed on the date of operation, i,e, 4-10-1990 and act of amputation cannot be termed as continuing cause of action. ' Having said so the question in my humble view is that even Article 22 of the Limitation Act is not attracted to the facts of the case. Article 22 of the Limitation Act provided for compensation to any other injury to the ..Person when injury is committed. The word "committed" used in Article denotes
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that injury should be commission of an overt act and not covered the case of the injury that has resulted on account of misfeasance. In the case of Abdul Majid Butt v. United Chemicals Ltd., PLD 1970 Lah. 298, while dealing the question whether Article 22 or Article 36 of the Limitation Act is applicable, it was held:-- "I am inclined to agree with the submission made by Mr. Ghias Muhammad. Article 22 of the Limitation Act deals with cases for compensation for any other injury to the person and prescribed the period of limitation of one year from the date when the injury is committed. In the context of the word `committed' implies the commission of an overt act and would not cover a case of injury that has resulted on account of misfeasance i,e, the improper performance of duty cast on a person by law. Thus if the serious injuries suffered by petitioner are the consequence of culpable negligence and the failure of the respondent to perform its legal obligations to, maintain their plants and equipment in a proper condition, the injury suffered by a person as a result of such negligence would fall in the category of cases visualized by the provisions of Art. 36 of the Limitation Act. According to this Article suits for compensation for any malfeasance, misfeasance or nonfeasance independent of contract and not specially provided for in the Act may be instituted Within two years when the malfeasance, misfeasance, non-feasance takes place. The question arises as to when this took-place. The question of the Limitation Act is of assistance in resolving this issue. Section 24 lays down:--- "In the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom the period of limitation shall be computed from the time when the injury results. ' The result, therefore, is that the period of limitation would have two years from the date when the injury actually resulted as a consequence as an alleged culpable negligence of the respondent." In the instant case plaintiff was admitted in defendant No,1 hospital and undergone a operation by signing memo. Of consent which can be termed as a contract between the parties. A patient is admitted in a hospital on the basis of a contract between the patient and the hospital/doctor. Such contract can be written or oral. Apart from various rules of the hospital the implied agreement between the patient is that a doctor in discharging of his duties will be to take all possible reasonable care and caution which a prudent man/professional man is supposed to do so as to not only to save life of the patient but also to rehabilitate him in the society. ' Article 36 of the Limitation Act provided two years limitation for compensation for any malfeasance, misfeasance or non-feasance independent of a contract, whereas Article 115 of the Limitation Act provided period of limitation for compensation for the breach of contract expressly or impliedly in writing as three years when the contract is broken. The improper performance of some act which a person may lawfully do means misfeasance and non-feasance means the omission which a person ought to do. While discharging the duty by a doctor in an improper manner constitute an act of misfeasance, if there is no contract between the parties and period of limitation will be 2 years from the date of act of misfeasance. However, if there is a contract between the parties, then Article 115 will be attached providing three years of limitation. The plaintiff has filed suit before expiry of two years and as such suit is in time. ' The issue is answered in negative. Issues Nos.2 and 3: ' On 24-9-1990 the applicant met with an accident of electric shock. The plaintiff was first taken to Abbasi Shaheed Hospital for medical treatment. According to the plaintiff, in the memo. Of plaint: he was discharged from Abbasi Shaheed Hospital by advising to take rest but from the discharge slip of Abbasi Shaheed Hospital (Exh.3/199) it appears that the hospital advised him to be admitted with an endorsement "that right hand and right foot are completely a/c" and was advised to be admitted. However, on the same day when patient was advised to be admitted in Abbasi Shaheed
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Hospital, where admittedly there was a full- fledged Burns Ward available, on he request of the attendant of the patient to shift the patient to some other hospital, he was discharged. The plaintiff thereafter approached the defendant No,1 hospital and he was admitted there as a patient of third degree burn, and where his right hand as well as right leg were amputated on the same day. The plaintiff in his examination-in-chief has not stated a single word that there was any negligence on the part of the defendants while undertaking the operations or that gangrene was developed due' to negligence and lack of care in providing required medical treatment due to which another operation was undertaken by the defendants, amputating his arm and leg. During the cross- examination the plaintiff admitted that current passed from his three fingers to heel. The plaintiff admitted his signatures on the request and consent for emergency treatment which he produced as Exh.P.W.-5/1. The consent form also specifically provided that since defendant No,1 is a teaching hospital, the patient may be treated under the supervisions of fully qualified practitioners with the involvement of authorized students/trainees. The plaintiff denied his signatures on the consent from, dated 3-10-1990 (Exh.P.W-5/2). Neither in the examination-in-chief nor during the cross- examination the plaintiff stated that due to professional negligence by the defendants his arm and leg were amputated or that required precautionary measures were not undertaken by the hospital while providing medical facilities to him which they ought to have…
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