Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD YASEEN VS Respondent: MEDICARE CLINIC LTD. And 2 others
Court Name: Sindh High Court Judge(s): Zafar Hadi Shah Title: MUHAMMAD YASEEN vs MEDICARE CLINIC LTD. And 2 others Case No.: Suit No,200 of 1985 Date of Judgment:1997-08-04 Reported As: 1998 CLC 139 Result: Suit dismissed
JUDGMENT
JUDGMENT ' The plaintiff has filed this suit for recovery of damages amounting to Rs,5,50,000 under Fatal Accident Act, 1855, Briefly stated facts are that the plaintiff who was an employee of Pakistan Steel Fabricating Company Ltd., which was a subsidiary of Pakistan Steel Mills Corporation Ltd., was entitled to medical treatment for himself and for his family in the approved hospitals/clinics and the defendant No,1 namely Medicare Clinic was one of the approved hospitals/clinics. The defendant No,2 is the president and one of the directors of defendant No,1 and defendant No,3 was R.M.O. If defendant No, I at the relevant time. Baby Shamim, born on 19-4-1983, the daughter of the plaintiff, was got admitted on 7-1-1984 in the Medicare Clinic for complaint of loose motions and vomitting on reference from a panel doctor. That due to the carelessness and negligence of the defendants, the health of the patient, went on deteriorating each day and reached such an extent that altogether a new disease of gangrene developed in her left leg. That at the time when the patient/baby Shamim was admitted, she was suffering from loose motions and vomitting for 20 days and was diagnosed as severe dehydration requiring lot of fluid. According to the plaint, the defendants gave her drips intravenous through butterfly needle after cutting the vein without first getting her examined by or obtaining the opinion of any specialist. The butterfly needle which was inserted in the left leg of the patient was not removed by the defendants till it had caused full damage and made a wound. That on 9-1-1984 the laboratory investigation, showed reduction of hemoglobin. That on 14-1-1984 the defendants changed the dressing of the wound of the patient and declared her condition to be satisfactory but suddenly on the next day i,e, 15-1-1984 they discovered gangrenous, appearance on her left lower leg i,e, the leg in which vein was cut and drips and transfusions continuously passed. On 16-1-1984, the defendants discovered a wound on
---
## Page 2
the patient's leg in question and two days thereafter i,e, 18-1-1984 they obtained the opinion of their own surgeon for fasciotomy and even amputation, if the condition did not improve. The plaintiff stated in the plaint that these new adverse developments which subsequently proved fatal, were entirely the direct result of the defendants' mis-management and gross negligence. The plaintiff further stated in the plaint that at the request of the plaintiff, professor Dr. M.A. Sheikh visited the patient in the defendants: clinic from 11-00 p.m. To 2-30 a.m. With the consent of the defendants. He suggested blood transfusion and recommended back slabe or card-board splint support for left leg which treatment, according to the plaintiff, was not given to the patient. The Chief Medical Officer of the employers of plaintiff requested the defendants on 28-1-1984 for constitution of a Medical Board for obtaining expert opinion for saving patient's life. The defendants after two days constituted a board consisting of their own staff. However, they forwarded the opinion of the Medical Board to the Chief Medical Officer on 2-2-1984 informing him that the above knee amputation was necessary to save the patient from further complications. According to the plaint, on 6-2-1984 the defendants carelessly performed above knee amputation operation of left leg which proved fatal and after suffering extreme agony and pain the patient died on 12-3-1984. The plaintiff and his wife through Advocate sent a legal notice dated 13-6-1984' demanding payment of Rs,5,50,000 on account of loss of life of their daughter. The plaintiff received an evasive reply denying their liability. As such the present suit was filed for recovery of the aforesaid amount. ' The defendants contested the suit and filed their written statement denying and repudiating all the adverse allegations made by the plaintiff. The defendants denied that there was any negligence and carelessness in the treatment of the plaintiff's daughter. 'They further stated that the patient remained under the care and treatment of two well-known eminent child specialists namely, Professor A.G. Billoo and Dr. Shams Ansari and was provided the best possible treatment and care in accordance with directions and instructions of the said child specialists. They further submitted that the patient was suffering from loose motions and vomitting for 20 days prior to her admission in Medicare Clinic. For all these 20 days the patient remained under the treatment of several doctors who were on the panel of Pakistan Steel Mills Corporation but the said treatment had no response and effect with the result that the condition of the said patient started deteriorating and ultimately the said patient reached the terminal stage of gastroenteritis and dehydration and its allied complications when she was referred to Medicare Clinic on 7th January, 1984 by Roshan Clinic. At the time of admission, the patient was morbid and gasping and was in hypovolemic shock and needed urgent 1. V. Fluids which was immediately provided. After emergency treatment provided to the patient in the casualty ward by defendant No,3, the patient was removed to children ward and remained under the care and treatment of two eminent child specialists namely Professor A.G. Billoo and Dr. Shams Ansari. After the admission of the patient in the children ward, the defendant No,3 was not connected and had no concern whatsoever with the further treatment of the patient. The patient received the utmost care and the best possible treatment in accordance with the directions and instructions of the said child specialists. In the written statement, it is further stated that the allegation that patient developed altogether a new disease i,e, gangrene is absolutely incorrect and baseless. They further stated that D.I.C. (Disseminated lntravascular Coagulation) which causes bleeding from several parts of the body, caused the clotting of blood in the left leg of the patient. The clotting and its resultant necrosis was discovered at a very early stage and surgeon Shah was consulted who suggested skin grafting. The plaintiff refused any operation in spite of the fact that it was explained to the plaintiff that any delay shall be dangerous for the patient but the plaintiff vehemently rejected the surgery. Every attempt was made to save the leg but the disease continued to progress resulting in gangrene of left leg. When gangrene had developed, the plaintiff brought Dr. M.A. Sheikh to perform "Alphagenesis" (healing by touching) which is contrary to medical ethics. This, however, did not
---
## Page 3
produce any fruitful result. Ultimately, on repeatedly being explained to the plaintiff the urgency of the surgery, the plaintiff gave consent for fasciotomy. Ultimately, the left leg was amputated by orthopedic Surgeon Syed Muhammad Ali Shah, F.R.C.S. To protect the patient from further infection, she was shifted to a private room. She,' however, developed meningitis which resulted in her death. ' On pleadings of the parties, the following consent issues were framed:- "(1) Whether the suit is maintainable under the Fatal Accident Act ? (2) Whether the defendants acted negligently and carelessly in the treatment of plaintiff's infant daughter ? (3) Whether the operation of plaintiff's daughter was carelessly performed ? (4) Whether the plaintiffs daughter received the utmost care and the best possible treatment under the directions and instructions of Child Specialists ? (5) Whether the, plaintiff is entitled to any decree ? (6) To what relief the plaintiff is entitled?" ' The plaintiff examined Mr. Dawood who produced history sheet of the patient as Exh.5/1 and pathological report as Exh.5/2. Dr. Roshan who produced referring letter as Exh. 6/1. Dr. Malik Ali Sheikh as P.W.3, Dr. Sahib Khan Khaskhelly as P.W.4. Muhammad Yasin, plaintiff. The defendants examined Dr. Saleem Ilyas, defendant No,3 as D.W.1, Dr. Tarique Sohail, defendant No,2 as D.W.2, Dr. Ghaffar Billoo as D.W.3 and Dr. Muhammad Ali Shah as D.W.4. ' I have heard the learned counsel and perused the record and the written arguments filed by the learned counsel. My findings are as under:- ' Issue No,1 The parties' counsel did not press this issue. The issue is accordingly decided as not pressed. ' Issues Nos.2, 3 and 4. Are interlinked and are dealt with together. To prove that the patient died due to the negligence of the defendants, the plaintiff's counsel argued that it was a case of "res ipsa loquitur" and he placed reliance on 1995 CLC 83 (Road Transport Board N.-W.F.P. v. Mst Gul Zarina wherein it has been observed as under:-- "It is admitted and proved that passenger bus was plying on a public road and the deceased was run over by the bus resulting into his death. The facts and circumstances of the accident is sufficient prima facie evidence from which an inference of negligence can reasonably be drawn on the rule of res ipsa loquitur (the thing speaks for itself ). This rule of evidence comes into play in cases where the exact cause of accident is not known and the res can speak for itself so as to throw inference of negligence or laches upon the defender. Facts and circumstances of an accident may by themselves lead to a reasonable inference of negligence although there may not be direct proof of negligence. The above cited case does not apply to the facts of the present case. The principle of " res ipsa loquitur" also has-no bearing in view of the facts of this case. The aforesaid principle applies where the real cause of death Les solely within the knowledge of the defendant and is not known to the plaintiff. In the present case, the plaintiff had alleged negligence on the part of the defendants as well as on the part of specialist doctor/surgeon and adduced evidence to prove negligence on their part which caused the death of the patient. The case in hand is not a case, of no evidence having been available with the plaintiff to prove the cause of death of the patient. The patient remained in the hospital from 7-1-1984 to 12-3-1984 and during that period, doctors, specialists in their respective field, attended the patient and Dr. Malik Ali Sheikh (P.W.3) also treated the patient at the request of the plaintiff. There are several files, reports and charts maintained by the defendants regarding the illness and treatment of the patient. Further it is an admitted position that gangrene developed in the left leg of the patient and that when the patient was admitted she was suffering from dehydration, loose motions for 20 days, D.I.C. (Disseminated Intravascular Cougulation) and thereafter, meningites had developed. Apart from this treatment, Dr. Malik also
---
## Page 4
treated the patient at the request of the plaintiff. It is also an admitted position that photo copies of the entire record of the hospital had been obtained by the doctor of the plaintiff's employers much before filing of the suit. Further the D.W. Tarique Sohail stated that the C.M.O. And Deputy C.M.O. Of Steel Mills were in the knowledge of this case almost on hour to hour basis and that they were making calls and visits. The above facts show that the plaintif, his witness Dr. Malik and the doctors of plaintiff company all had full knowledge of the illness of the patient, her condition, treatment and the disease -which became fatal i,e, meningitis. ' Under the circumstances of the case, the burden to prove the alleged negligence on the part of the defendants, lay heavily upon the plaintiff and the principle " res ipsa loquitur" did not apply to the facts of this case. ' To consider as to how far the plaintiff had succeeded in proving negligence on the part of the defendants, the evidence adduced by the plaintiff is to be assessed. The star witness of the plaintiff in this regard was Dr. Malik Ali Sheikh (Ex.7). This witness stated in evidence that "on 21st January, 1984 the R.M.O. Of the defendant hospital rang me up and requested me to examine baby patient in the hospital. On examination, baby was smelling of formaldehyde which is an oxidation product of methylated spirit. The limb appeared in a state of extreme preservation. Diagnosis of patient appeared massive destruction of the tissues of the left lower limb. The outcome of recovery was fairly good because this formaldehyde vaporizes in due course of time and localizes itself at a certain point between the living and the dead tissues. Two days after I saw the patient, the line of demarcation appeared just about the left knee joint. Furthermore, the general condition of patient was very toxic. There was generalized swelling of whole body and the liver and spleen were both markedly enlarged. Mentally 'patient was not coherent. This will add further to the diagnosis that there was generalized toxaemia of the patient. Had the patient. Been allowed without surgery the left lower limb would have dropped at the line of demarcation which was just above left knee. The blood test of the patient showed marked disturbance of the liver functions. Therefore, any surgical intervention under general anesthesia would lead to fatal consequences, which has happened in this case. He further stated that " R.M.O. On enquiry told me that good dressing was being done by the application of methylated spirit. In my opinion this proved fatal for the patient being converted into formaldehyde on coming in contact with oxygen of atmospheric. I immediately warned the R.M.O. Of the consequences and I also wrote out a full page of opinion about it. He further stated that :"I am shown the case notes of the hospital but I do not find that opinion on the file produced by defendant. My noting made on the 2nd February, however, present on the record at pages 38-39. My note reads as under:-- "Line of action certainly is only one that is amputation. One would like to know what actually caused gangrene." ' He further stated that "I was called to the hospital by the R.M.O. Of the hospital at the request of the Steel Mills who are the employer of the father of the baby patient. He further stated that he was not satisfied with the line of treatment in this case by the hospital. In cross-examination, this witness sated that he treated the patients through alpha genesis and stated that a gangrene patient may also be treated by him through this method. He admitted that he was called for the first time when the patient was suffering from certain types of gangrene. The child remained under his treatment from 21-1-1984 to 29-1-1984, To a question put to him in cross-examination the witness stated that" as a matter of fact the patient was treated by "alpha genesis" and also through drugs as my notes would disclose". To another question the witness replied" I would say that it (alpha genesis) is a supplementary process to the main treatment. This witness was asked the following questions in cross-examination:--
---
## Page 5
"Q. It is correct that you were removed from the civil hospital because you were treating the patient through uncoventional method of treatment not conforming to rules of Pakistan Medical and Dental Council? A. It is incorrect. I was transferred from Dow Medical College to the Health Department Government of Sindh as Officer on Special Duty because 1 had expelled from the examination hall young doctors who were on invigilating duties unauthorizedly and were providing copying material in the examination hall. Q. Please read a news item published in Dawn dated 18th Nov. 1985 which gives the reasons of your removal from the hospital as stated above. What have you to say? A. Ycs. I have seen the report. This report was published at the instance of the affected examinees and I have filed a complaint against these examinees with the Government of . Sindh and I am awaiting the judgment from the Health Department; ' This witness further stated that" It is correct that I had received a charge sheet on 25-3-1986. It is incorrect that the matter had been referred to Pakistan Medical and Dental Council. It is correct that one complaint by P.M.D.0 has not been referred to the Standing Disciplinary Committee of P.M.D.C. In cross examination, the witness was shown a photo copy of the notification from P.M.D.C. Dated 25-2-1987 notifying that after hearing him the Disciplinary Committee had decided to temporarily suspend his registration certificate till findings of the Medical Board constituted by the Sindh Government are received. The witness stated that he had not been intimated of any such decision as published in that notification. The witness was further asked that he made a false statement because he had filed a Constitution Petition No,339 of 1'987 in this Court. The witness replied that in this writ petition he had challenged the decision of the Disciplinary Committee recommending his suspension but he had not challenged the notification. In these circumstances another question was put to this witness which was as under:-- "Q. Again I put it to you that not only you have challenged this notification in the constitution petition but have also moved an application for interim interlocutory order for suspension of this notification. What have you to say? A. I will have to check up from my application." ' It is also pertinent to note that this witness in this case, was cross-examined on commission. The report of the Commissioner dated 27-1-1992 is on record and the relevant paragraph of the Commissioner's Report is reproduced as under:-- "On 9-1-1992, parties and their Advocates were present and waiting for Dr. Malik. At about 10-20 a.m. Dr. Malik arrived and requested me that his cross-examinations recorded on 2-1-1992 may be given to him for refreshing his memory. On such request the undersigned gave the deposition recorded on 2-1-1992. Dr. Malik immediately tore the deposition instead of reading and threw the pieces towards me on the table and used filthy language and left the room uttering so many other bad words and that you and the judge have percentage in this matter and that I shall fix you." ' The Court issued a show cause notice for contempt of Court. The order of the Court dated 17-5- 1992 mentions that" the witness states that he is suffering from high blood pressure and sometimes he goes out of his senses". The Court, however, accepted his apology and withdrew the contempt notice. As far as his evidence is concerned, there are many contradictions for instance. In examination-in-chief this witness said that R.M.O. Told him that the dressing was being done by the methylated spirit and in his opinion this proved fatal. Further, he said that. He had not mentioned that R.M.O. Told that dressing was done by methylated spirit. Further, in examination-in-chief, this witness stated." The outcome of recovery was fairly good because this formaldehyde vaproizes in due course of time and localizes itself at a certain point between living and dead tissues". ' The above two statements are contradictory to each other. Further, the note put up by this witness dated 2-2-1984 appearing in Exh.5/1 distinctly marked as Exh.5/1-A says "Line of action certainly is only one that is amputation". In examination-in-chief, this witness stated" had the patient been
---
## Page 6
allowed without surgery, the left lower limb would have dropped at the line of demarcation which was just above left knee". This witness also admitted that the patient was treated by him "alpha genesis" (healing by touching) during the period he visited the hospital. He further.Stated that" any surgical intervention under general anesthesia would lead to fatal consequences". Considering the overall evidence and conduct of this witness, who had also treated the patient at the request of the plaintiff, I am of the opinion that he was not a trustworthy witness under the circumstances of the case. He also failed to prove any negligence on the part of the defendant No,3 or on the part of Dr.A.G. Billoo and Surgeon Shah, who, according to his own admission, were the two most reputed specialists in their respective field. 'It has also come on record, through the evidence of Dr. Tarique Sohail and Dr. Saleem Ilyas, the defendants Nos.2 and 3, that the defendant No,3 who was the R.M.O. Of casualty department at the relevant time, after. Admitting the. Baby, had shifted her to the children ward and thereafter, he had no connection or concern with the treatment of the said patient. ' The plaintiff though alleged but failed to prove as to how amputation operation was carelessly performed. No evidence to this effect has been adduced from the side of the plaintiff. ' The defendant No,3 in his affidavit-in-evidence in paragraphs Nos.4, 5, 6, 7 and 8 deposed that the patient was severely dehydrated and was in a state of shock and apparently morbid. Her skin was shrivelled up, excoriating from several places and she was lying limb and listless. It was apparent that unless 1.V. Line would have established and fluids given urgently, the patient would not have survived another few minutes, but due to collapsed state of peripheral circulation all attempts to start the drip failed. He informed the relative of the situations and told them that a minor operation was needed to start the drip. He further in para. 7 of the Affidavit-in-evidence described how he conducted the cut down and performed venesection. ' There is no cross-examination with regard to the above deposition of defendant No,3 and no question was put to him that he was negligent or careless in any manner in performing the venesection and providing 1.V. Treatment to the patient. This witness clearly stated that butterfly needle was not used by him. ' I have perused Exh.5/1 and all the noting therein which showed that there were different R.M.Os. Attending the patient at different times. Excepting. The notes at pages 18,19,31 and 43 of Exh.5/1 no other note of defendant No,3 has been pointed out by the learned counsel for the plaintiff. The defendant No,3 has, in cross-examination, explained as to under what circumstances, he made the aforesaid notes. The notes mentioned above even otherwise do not show that defendant No,3 provided any treatment to the patient nor any suggestion was given to defendant No,3 to point out the treatment allegedly given by him in respect of the aforesaid notes. That from the evidence on record, it is evident that the only treatment which the defendant No,3 provided to the patient was emergency treatment when the patient was brought to the casualty department in a very serious condition. The plaintiff has failed to show that the defendant No,3 acted negligently and carelessly in providing the emergency treatment to the patient. This witness had not been cross-examined on the aforesaid deposition. ' The two consultant child specialists Dr. A.G. Billoo and orthopedic surgeon Dr. S.M.A. Shah in their Affidavit-in-Evidence stated that the treatment given to the patient was according to the best prevailing standards. The patient received the utmost care and the best treatment in accordance with their directions and instructions. Both the witnesses have also not been cross-examined at all on their above statement which remained unchallenged. The witness, if not cross-examined on any portion of his statement, the presumption would be that the said portion of his evidence is accepted as correct and true. See 1985 CLC page 2111 Muhammad Yasin's case wherein it has been observed that if there was no cross-examination on fact deposed in examination-in-chief, presumption would he that evidence
---
## Page 7
had been accepted by party against whom it was given. The other important piece of evidence on which there is no cross-examination is the deposition of Tariq Sohail (D.W.2). In paragraphs 11 to 14 of his Affidavit-in-evidence he deposed that on F.I.R., lodged by the plaintiff against the defendants, the police referred the matter to the Home Department, Government of Sindh. The Home Department referred the matter to the Health Department for setting up a Medical Board, accordingly a Medical Board was constituted consisting of Dr. D.S. Akram M.B.,B.S. DAB(USA) Associate Professor of Paediatrics, D.M.C. And Civil Hospital Karachi, Professor Mrs. H.N. Mehmood F.R.C.S. Professor of Surgery, D.M.C. And Civil Hospital Karachi and Dr. Aftab Ahmad Qureshi, Medical Superintendent Civil hospital Karachi. ' The Board after holding several meetings at the Medicare Clinic (defendant No,1) as well as at Civil Hospital Karachi opined as under:-- "As far as the treatment of this case is concerned, it was in the best hands and was given at the prevailing best…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.