' SARDAR MUHAMMAD RAZA KHAN, J.---Mrs. Aalia Tareen in her personal capacity as well as being the Managing Director, Pakistan General Hospital, Quetta and Dr. Saddiqa Hach Gynaecologist, Pakistan General Hospital, Quetta have filed the instant two appeals against the judgment dated 1- 12-1997 rendered by an Honourable Division Bench of Balochistan High Court whereby their Regular First Appeals Nos.28 of 1996 and 41 of 1996 were dismissed and a decree for the recovery of rupees ten million was granted jointly as well as severally as damages in favour of Amanullah Khan son of Abdullah Khan. Through the impugned decree, the amount of rupees one million decreed by the learned Senior Civil Judge, Quetta on 22-8-1996 was enhanced to rupees ten million.
2. By entering into wedlock with Amanullah Khan on 31-12-1980, Miss Adeeba Kansi became Mrs. Adeeba Aman. The union was blessed with three daughters named Amena, Gul Meena and Palvasha. She conceived for the 4th time and started visiting the Clinic of Dr. Mrs. Mah-Rukh Masoom from time to time. Her expected date of delivery was determined as 27-10-1989. While nearing the date of delivery she also consulted Dr. Saddiqa Haq, appellant and continued visitng Maternity Section of Pakistan General Hospital, Quetta (PGH), which section was supervised by Dr. Saddiqa Haq as Gynaecologist. Under the instructions of the doctor, Mrs. Adeeba Aman visited the hospital on 29-10-1989 at 11-00 a.m. She was informed that her delivery by that day had become over-due and that she should get admitted in the hospital where she was so admitted.
3. As alleged in the plaint, the delay of two days was not alarming in the circumstances yet Dr. Saddiqa Haq, appellant being reckless and negligent prescribed drip of syntocinon for initiating uterine contraction i,e, labour pains. At about 2-00 p.m. Mild contraction of uterus started, the fetus was in good state of health but at 5-00 p.m. The fetal heart beats became irregular. At this stage Dr. Saddiqa Haq in her own estimation decided to operate upon the deceased and get the child delivered by Caesarian Section Operation, forgetting altogether that the hospital was not fully equipped for the purpose. The Pakistan General Hospital including Managing Director Mrs. Aalia Tareen, also did not realize while admitting the patient that the hospital was not sufficiently equipped to meet such like emergency. When the anaesthetist was consulted in connection with the proposed Caesarian Section Operation, it revealed that the anaesthesia apparatus having developed some fault was out of order. Having faced with the given situation Dr. Saddiqa Haq decided to shift the patient to Al-Rehman Hospital Patel Road,' Quetta without agreeing to the suggestion that she may have a second opinion from any other Expert Gynaecologist or doctor, one of whom was the brother of the deceased. The patient was taken in a Suzuki Van, a so-called Ambulance to Al-Rehman Hospital. The van had no facility of oxygen or emergency drugs. In a pathetic condition and with her feet sticking out of the van the patient was brought to Al-Rehman Hospital in a miserable, inhuman, humiliating and disgusting condition. By the time the patient was taken in the Operation Theatre and by the time sterilized instruments were procured from PGH, one Dr. Abdul Qayyum had also reached there. The patient was given high potency drugs which are invariably avoided in pregnancy cases and administered cautiously and carefully.
The long and short of what is extensively given in the plaint, the Caesarian Section Operation was conducted, the baby was delivered alive but after when the patient was shifted to the room, her condition deteriorated, she started bleeding and ultimately at 4-15 a.m. She unfortunately breathed her last. The baby was normal and healthy. It is said that prior to and after operation, such drugs were administered to the patient which are never given in the circumstances. The cause of death is alleged to be the rupture of uterus and post partum shock. With such allegations and lengthy background given in the plaint, Amanullah Khan, the husband of deceased lady brought a suit for damages against the hospital, as such, Mrs. Aalia Tareen; the Managing Director, Zahoor Ahmed' Durrani, Administrator of the Hospital and Dr. Saddiqa. Haq the Gynaecologist for the recovery of a sum of rupees ten million as damages.
5. The defendants in their respective and equally lengthy written statements totally denied the allegations brought forth by the plaintiff. They pleaded that the hospital was a well-equipped renowned hospital where innumerable delivery cases and Caesarian Section Operations have been and are being conducted day in and day out. That Saddiqa Haq being the family doctor of the plaintiff had conducted many such cases of his family. That she had a long practical experience of 27 years to her credit as the leading gynaecologist of Quetta. That there were two sets of Anaesthesia Apparatus available in the PGH out of which one had been taken for repairs while the other was available in perfectly functional condition but the available Anaesthetist expressed her inability to work on it and hence the patient was to be taken to Al-Rehman Hospital another renowned hospital in the city.
6. That the patient was so shifted not in a Suzuki Van but in the Ambulance of the Hospital. That the allegation about the reduced and irregular heartbeats of the fetus were totally unfounded because the baby, yet another 4th daughter was born healthy, hale and hearty, that the Gynaecologist had performed everything free of charge because of the plaintiff and because of the patient being the sister of a doctor.
7. It was further pleaded that no doubt syntocinon injection was administered to the patient in order to induce labour pains but there was nothing abnormal about the drug yet it was administered in dilution with 1000 cc dextrose. It was seriously contended that the rupture of uterus was a false allegation the certificate where about was given by a doctor who had never ever seen the patient throughout the affair.
8. The learned trial Court, after recording extensive evidence on either side went to hold that all the defendants aforesaid were guilty of negligence, recklessness, lack of competence and lack of equipment. A decree for the recovery of rupees one million was accordingly granted which the Honourable High Court through the impugned judgment enhanced to the tune of rupees ten million to be paid jointly as well as severally. Zahoor Ahmed Durrani, Administrator PGH was however absolved of the liability.
9. With the assistance of the learned counsel on either side, we had the opportunity of going through the record as well as the entire evidence produced by the parties. We believe that it is a case of thorough reappraisal of evidence in addition to the law point as to what essentially are the requirements of a suit for damages. We have to recall that the instant one is a suit for damages grounded on the negligence of the defendants who are professional in their trade. Before entering into real controversy we have to appreciate certain basic terminologies like damages and negligence.
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 and 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 Droved. This brings us to the conclusion that in a suit for damages, the wrong done to the plaintiff must be proved to be the immediate, direct and proximate result of the act or acts of negligence attributed to the defendants.
11. Next is the phenomenon of negligence, which in the instant case, is that of professional people.
How much special skill or competence such as that of a doctor is required in the given circumstances is discussed in various texts. Salmond and Heuston on the Law of Torts, Twentieth Edition by Heuston and Buckely (Second Indian Reprint 1994) pages 236 & 237 are cited at the bar in relation to the expected skill or competence of professional people. With reference to case-law, it is expected of a professional man that he should show a fair, reasonable and competent degree of skill. It is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. An example is furnished to the effect that a barrister is not expected to be right: it is enough that he exercises reasonable care. So a medical practitioner should not be found negligent simply because one of the risks inherent in an operation of that kind occurs, or because in a matter of opinion he legitimately took a view which unfortunately happened to produce an adverse result in the particular circumstances.
12. The standard of care to be observed by a professional has always been that of the ordinary skilled person exercising and professing to have that special skill. A Doctor or surgeon was not to be held negligent if he acted in accordance with the practice accepted at a relevant time as proper by a responsible body of medical opinion, irrespective of the fact that other doctors might have adopted different practices in similar conditions. The governing principle by Lord Dunedin in Morton v. William Dixon Ltd. (1909 SC 807, 809) is often quoted as follows: ' I think it is absolutely necessary that the proof of that fault or omission should be one of two kinds, either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it."
' It is thus obviously concluded that when the actions of a doctor or any other like professional are to be scrutinized in a claim for damages, the Court has necessarily to see as to whether he acted with the utmost care that he was required to observe and with the utmost skill that he possessed.
13. When professionals like one in hand are in action, it is expected of them that they should also foresee certain consequences being probable in the circumstances. Such test is laid down at page 535 of the same treatise and said to involve two propositions: first if a consequence which actually results from the defendant's tort is a probable or foreseeable consequence, then the defendant may be liable; second, if a consequence which actually results from the defendant's tort is an improbable or unforeseeable consequence, then the defendant is not liable.
14. Jackson & Powell on Professional Negligence Fourth Edition London (Sweet `& Maxwell, 1997) further provides discussion on the quantum of negligence. Denning L.J. While directing the jury in Hatcher v. Black made a very obvious description concerning the skill of a medical man at page 611 and observed, "You must not, therefore, find him negligent simply because something happens to go wrong: if, for instance, one of the risks inherent in an operation actually takes place or some complication ensues which lessens or takes away the benefits that were hoped for or if in a matter of opinion he makes an error of judgment, you should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man. In short, when he is deserving of censure, for negligence in a medical man, is deserving of censure".
15. Lord Clyde in Hunter v. Hanley further went on to observe: "But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear-cut as in the normal case of negligence. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care....". In the wake of all these conditions, we would now revert to the instant case.
16. The allegations made in the plaint are twofold. Certain conditions are given in the light of which it is alleged that the administration of Pakistan General Hospital (PGH) was negligent in not providing the required facilities to the patient. That their anaesthesia machine was not in order yet they admitted the patient. That they shifted the patient from PGH to Al-Rehman Hospital in extremely, poor and deplorable conditions and lastly that Dr. Saddiqa Hach the Gynaecologist did not exhibit the required standards of skill and care due to which the patient inordinately suffered a rupture of uterus resulting into her death. With all the allegations above and counter allegations, we would like to have an over view of the evidence of the parties.
17. Muhammad Azeem, Operation Theatre Assistant is examined as P.W.1. He is working in Al- Rehman Hospital. According to him, the Anaesthetist was Dr. Hussain Ara. The patient Mrs. Adeeba Aman had come to Al-Rehman along with her own Doctor as well as assistant. The witness claimed to have remained present in the operation theatre. According to him, the blood of the patient flowed like, a fountain when the operation commenced, whereupon, Dr. Saddiqa Haq got panicky and sent for Dr. Chiragh. Though the blood had flown a lot yet it was stopped. Two bags of blood were given to the patient one in the operation theatre and one thereafter. Dr. Saddiqa Haq took two hours but could not stop the blood. The witness admitted in the cross-examination that during operation no doctor from Al-Rehman Hospital was present in the theatre. At the end, he said that during three hours of his duty, no doctor from outside had come to the theatre.
18. Lady Dr. Mah Rukh Kansi, (P.W.2) was the one who had provided antenatal consultancy and who had examined the patient on 20-8-1989 i,e, about nine weeks prior to the delivery in question. She had given the expected date of delivery which seems to have been changed from 21st to '27th. She had only heard from others that the patient had died of shock due to excessive bleeding but there is overwhelming evidence, on either side, that the blood according to the requirement was fully replenished. She gave the opinion that the inducement of labour pains can be deferred to a period of ten days beyond the expected date of delivery. She went on to say that administration of syntosinon can cause irregular heart beat in the fetus, it can cause fetal death and also rupture of uterus. In cross-examination she admitted that after 20-8-1989 and during the aforesaid gap of nine weeks she had not examined the patient. She admitted that Dr. Saddiqa Haq was the most qualified and experienced Gynaecologist with whom she had conducted 15/20 operations. It could not be explained as to how the prescription Exh.P1 which was supposed to have been given to the patient in original happened to be retained by her when, according to her own routine, she was not in the habit of retaining even the photo-stat copies thereof. She made an important statement that the child in the uterus cannot survive if the rupture of uterus takes place.
19. Farooq Jabbar, Chemist (P.W.3) is not very material while Dr. Muhammad Ayub (P.W.4) was examined only about the ambulance but he expressed his ignorance about the conditions prevailing in Pakistan General Hospital.
20. Dr. Latif-ur-Rehman (P.W.5) is Managing Director, Al-Rehman Hospital. He stated that at Al- Rehman Hospital the patient was in shock, that Dr. Saddiqa Haq got confused and that in a state of shock the patient should not have been shifted from PGH to Al-Rehman, Hospital. He produced treatment chart as Exh.P.7 and death certificate as Exh.P8. He admitted that he personally had not entered the operation theatre. It is not mentioned in the treatment chart Exh.P7 that the patient was in shock when she arrived at Al-Rehman Hospital. He further admitted that Dr. Saddiqa Haq had performed innumerable caesarian sections. That she was fully qualified and senior to him. Exh.P7 also does not contain any entry regarding the rupture of uterus. He admits that the death certificate is always issued by the doctor who is incharge of the treatment whereas death certificate Exh.P8 was issued by Dr. Samina Afroze. Although it is a proved fact from the record that Dr. Samina Afroze had not treated the patient yet P.W.5 says that when BP was not checked, Dr. Samina Afrose prescribed medicines for the patient.
21. Zahoor Ahmed, Administrator PGH who himself was the defendant in suit appeared as plaintiff's witness No,6. He did not make any material addition.
22. Dr. Abdul Nasir, the real brother of Mrs. Adeeba Aman deceased was examined as P.W.7.
According to him, the patient had previously delivered three baby daughters in the normal course.
Five bottles of blood are admitted to have been arranged. He had no knowledge that after consultation the doctor had advised the patient to revisit on 22-10-1989, the expected date of delivery. He further admitted that in the absence of the doctor (Saddiqa Haq) he had administered an injection of soda-bi-carb to the patient. He further admitted that the death certificate can be issued by a doctor who is present at the time of death.
23. Abdul Wassay, Advocate (P.W.8) and Abdul Karim (P.W.9), a friend of plaintiff are examined to give the conduct, psychological as well as mental, of the plaintiff after the death of his lady wife.
24. Last was the plaintiff himself who entered the witness box as P.W.10. His lengthy statement is almost a narration of his allegations in the plaint. According to him, syntosinon was administered to induce contractions in the uterus. It was in the OT of PGH and the plaintiff left for home. He asserted that the rupture of uterus had already occurred in the PGH but in the same breath he stated that so long as he remained in the PGH, the condition of the patient was perfectly well. He went on to say that his lady wife was in irreversible shock and was crying. It remains yet to be visualized as to how a patient while in shock can manage to cry at the same time. He was of the view that syntosinon caused the rupture of uterus. He admitted having had told the doctor that he was not interested in the baby. He remained with his wife up to 2-00 a.m. At night and then left for his home. Apart from other technicalities of rupture etc. Which would be discussed in due course, one thing is apparent from the statement that at 2-00 a.m. In the night, the patent was normal and that is why the plaintiff left for home.
25. Adverting to the defendants' evidence, Dr. Chiragh Muhammad and Lady Doctor Hussan Ara Mehmood have been examined as D.W.1 and D.W.2 respectively. We would attach due importance to their statements for the reason that they are almost the eye-witnesses to the whole affair that entailed upon the said demise of Mrs. Adeeba Aman. Another peculiarity of these two is that they are not arrayed as defendants and hence have no need to try to save their skin. Both apparently seem to be independent witnesses. Dr. Chiragh Muhammad apart from commenting upon the experience of Dr. Saddiqa Haq stated that he had been working in PGH and during the days of occurrence has been working in Al-Rehman Hospital. He narrated that he was summoned because of bleeding due to non-contraction of uterus. He further added that during the time he joined the theatre, the uterus had, of course, contracted and bleeding was stopped. In his opinion the postmortem examination was necessary to determine the cause of death. He said categorically, as an eye account that the wound of uterus that he observed on the spot was an incision and not a rupture.
' Dr. Hussan Ara Mehmood D.W.2 was admittedly an Anaesthetist who administered anaesthesia to the patient; she has post graduated in the subject. According to her, the operation theatre of PGH was fully equipped. She had received a phone call from PGH that anaesthesia apparatus was out of order and out for repairs. Another apparatus was also available but she expressed her inability to operate because she had not performed thereon before. She described that the patient was in good condition, that she was talking to those in attendance, that she took her blood pressure and the patient requested her to pray to Almighty Allah to bless her with a son this time. The baby was delivered through caesarian section whereafter Dr. Saddiqa Haq started stitching. In the meanwhile, the bleeding started, immediately the blood was given and still another bottle was procured from the laboratory. That Dr. Chiragh was called but by the time he came, the bleeding was almost under control. The patient came to and was perfectly all right except that her BP was low. She was shifted from the operation theatre. She insisted to see the baby which, it was told, was a boy. She added that the bleeding had been controlled even in the operation theatre. She denied the suggestion that when the operation commenced the blood was already available in the abdomen. She denied the suggestion that the patient was already in shock. According to her, two pints of blood were administered during operation and one pint of blood was administered in the room. She also added categorically, like Dr. Chiragh Muhammad that in fact the uterus was not contracting. The patient was shifted from the PGH to Al-Rehman Hospital for the only reason that she could not operate on the available anaesthesia machine/apparatus. She denied the suggestion that when she reached the OT, the patient was unconscious. She denied the suggestion that the uterus of the patient had ruptured. While agreeing with the plaintiff's witness Dr. Mah Rukh Kansi, she also added that if the uterus was ruptured, how could the baby be born alive. She remained with the patient unless the latter became stable and that is what an anaesthetist is supposed to do.
27. Mrs. Lasarous, a nurse from the PGH is another witness for the defendants. She confirmed the factum of available anaesthesia machine at PGH which could not be operated upon by Dr. Hussan Ara. Went on to say that this fact was brought to the notice of the husband of the patient and his consent was obtained for shifting her to Al-Rehman Hospital. She disclosed that the patient walked over to her room in the PGH from labour room, she was perfectly all right in the operation theatre of AlRehman and was talking about even on the table. That the baby was delivered through caesarian section at 7-45 p.m. There was slight but normal bleeding from the uterus and when out of the effect of anaesthesia, she was shifted to her room where she has been talking with her husband, her mother and another lady among relatives. That Dr. Qayyum and Dr. Nasir were also present from whom Dr. Saddiqa Haq sought permission to leave which was accorded with thanks and gratitude. At 3-45 a.m. The patient woke up from sleep and complained of pain. She insisted for her husband to be called. The husband had already left for home, however, Dr. Nasir, the brother of the patient was present in the next room who administered one injection to the patient despite the refusal of the witness nurse thrice. The condition of patient became suddenly serious. Dr. Nasir sought her help to put the patient on the ground, most probably for resuscitation but she could not survive. She denied the suggestion that the blood pressure of the patient was low before and during operation. She also denied the suggestion that when the incision of caesarian section was given, the uterus had already ruptured.
28. Mrs. Aalia Tareen, herself being a defendant appeared as D.W.4. She was mostly examined and cross-examined on the administrative aspect of the hospital and so was Zahoor Ahmed Administrator, examined as D.W.S.
29. Last is Dr. Saddiqa Haq, defendant. No, 4, who appeared as D.W.6. She graduated in Medicine and Surgery in the year 1960 from Fatima Jinnah Medical College, Lahore. Mrs. Adeeba Aman came to her for consultation at advance pregnancy in August/September 1989. She came twice and her expected date of delivery was determined probably as 22-10-1989 on which date she did not turn up and instead came on 29-10-1989, 7/8 days thereafter. She had a slight watery bleedings. After lunch at 3-00 p.m. She was normal. At 4-00 p.m. She was shifted to labour room where she asked for prayers to Almighty to bless her with a son, for, she had three daughters already. She feared that in case of daughter that time, her husband would take second marriage. This was the reason she avoided ultra sonography. At 4-30/5-00 p.m. The doctor observed that the fetal heart beat was not appropriate. She described fetal distress as condition when the fetal heart beat starts suddenly increasing and ultimately it tends to fall-. She explained that in such conditions if the child is not delivered there is every likelihood of the death of the fetus. She informed everybody that if the aforesaid condition did not settle, the result to caesarian section would become inevitable.
Thereafter she narrated the fact about Dr. Hussan Ara and her inability to operate upon the available anaesthesia machine. That the husband and mother of the patient agreed to her transfer from PGH to Al-Rehman Hospital where she was so shifted between 6-00/6-30 p.m. That the baby was delivered, the uterus we stitched but the uterus did not contract and there was bleeding to that effect.
30. She explained post partum haemorrhage, being a condition where, after delivery, the uterus relaxes and does not contract. Dr.Chiragh came on call and by the time he arrived, the bleeding was almost controlled. After complete correction the abdomen was closed and stitched. The patient, under the directions of the anaesthetist was shifted to the room at 8-30 p.m. The plaintiff- husband remained indifferent. At 10-30 p.m. The blood pressure became normal which was seen by Dr. Qayyum and Dr. Nasir themselves. Vaginal bleeding also got normal and the doctor left with permission, with thanks, of Dr. Qayyum. When she reached home, she received a call that the patient was bleeding. She rushed back to the hospital and checked the pad which was applied in the O.T. The doctor suggested that it was nothing but normal and again left for home. Thereafter she did not receive any call but at 5-30 a.m. From Dolly, the nurse, that the patient had expired. She also disclosed of the injection given by Dr. Nasir through intravenous line. She vehemently denied the suggestion about rupture of uterus, saying that thereby the fetus is pushed into abdominal cavity whereby the fetal death is bound to occur.
31. In cross-examination she was asked numerous questions on the factum of fetal distress but, we believe, that this at all is not the case of the plaintiff that Mrs. Adeeba Aman died of fetal distress.
She was also cross-examined on the expected date of delivery and her knowledge about the subject. According to the chart Exh.P-14, the blood pressure, the heart beat and pulse of the mother and heart beat of the fetus were perfectly normal from 11-00 a.m. To 4-00 p.m. She explained in answer to numerous questions the causes of fetal distress as cod compression, prolonged delivery, administration of certain drugs leading to haemorrhage, lack of oxygen and obstruction in birth canal. She ultimately stated that in the instant case the uterus after delivery had initially contracted but thereafter relaxed.
32. After having given the over view of the evidence of the parties, we would now revert to the case of the plaintiff with specific reference to the different allegations qua the professional negligence and omissions. First comes the allegation that the doctor incharge had administered syntosinon that caused the rupture of uterus. From the evidence on record it is quite apparent that so long as the patient remained in the PGH and even after when she was shifted to Al-Rehman Hospital, no such complication had arisen except that the doctor, in her experience and opinion, considered the caesarian section operation to be the need of the moment. It is also proved from the record that no rupture of uterus had taken place so long as the patient remained at PGH. And hence the administration of syntosinon cannot be blown out of proportions. It is a normal drug (synthetic exytocic) administered for inducing uterine contractions and is always administered along with dextrose solution. When the patient reached the Al-Rehman Hospital, a treatment chart was prepared p.279 of High Court paper book where the diagnosis was only given as caesarian section.
No mention at all is there of the rupture of uterus, so much so, that even in Al-Rehman Hospital syntosinon was prescribed. We are fully convinced that no untoward incident occurred due to the administration of syntosinon. It may be observed here that treatment chart (p.279) is not proved by the maker, Dr. Samina. It is referred to because it is relied upon by the plaintiff himself.
33. Coming to the allegation about non-availability of anaesthesia machine, it has come on record that PGH had two such machines out of which one had gone for repairs while the other one was available and in perfect working condition. The only unusual thing was that Dr. Hussan Ara, the Anaesthetist could not operate upon it. Such things usually happen in the hospitals and the best solution in the given circumstances resorted to at the moment was the transfer of patient to Al- Rehman Hospital. It is even otherwise proved that the unfortunate death never occurred due to the non-availability of a machine which could have been operated upon by Dr. Hussan Ara. We have already determined that in cases of damages the act complained of must be the direct and immediate result of the omission. In the instant case the death has never been the direct and immediate result of the non-availability of any particular anaesthesia machine. The shortcoming at PGH was met with at AlRehman Hospital and the child was duly delivered through caesarian section. Same could be the reasons for repelling the argument concerning Suzuki van wherein the patient was alleged to have been shifted under miserable conditions. The mishap is never proved to be the direct and immediate result of carriage through Suzuki van which, on the other side, is pleaded to be a complete Ambulance as required.
34. The cause of death is alleged to be the rupture of uterus and post partum shock. From the trend of examinations and cross-examinations, it appeared that the allegation of post partum shock is almost abandoned. Throughout, it has been maintained that the misfortune occurred due to rupture of uterus. This being the most, rather the only, important point in the instant case requires a bit of elaboration. We have been led through a text book, Obstetrics by ten teachers edited by Stanley G. Clayton, TLT Lews and G. Pinker (XIII Edition) published by English Language Book Society.
Rupture of uterus (p.322) is of two kinds; one during pregnancy and the other during labour. The case in hand is not one of rupture during pregnancy and so we skip over it. Rupture during labour is caused by (i) obstructed labour, (ii) intrauterine manipulation (iii) forcible dilatation of the Cervix
(iv) injudicious use of oxytocic drugs (v) a weak scar in the uterus after previous caesarian section etc. And (vi) degeneration of uterine muscle.
35. In the instant case the previous three deliveries of patient were normal and hence there was no scar of caesarian section leading to any possibility of the rupture. It has also come on record that up to the time the patient reached Al-Rehman Hospital no rupture had taken place. It has also come in evidence from the mouth of professional witnesses and even admitted by Dr. Mah Rukh Kansi, the plaintiff's witness, that the child cannot remain alive if the rupture of uterus takes place.
We have gained knowledge through the evidence that due to rupture, the fetus is thrown into body cavity and due to lack of blood and oxygen, the fetus dies there and then. In the instant case the baby girl was delivered alive and healthy. The possibility of rupture of uterus is, therefore, excluded altogether.
36. Even if it is presumed for the sake of argument that after rupture, the caesarian section was immediately performed and thus the baby came alive. Had such rupture so occurred, the doctor incharge could very well have stitched such rupture alongwith caesarian incision and hence it could have been very well-treated without causing any, complication. When caesarian section is performed, the rupture, even if there, becomes immaterial and is never likely to lead to any complication; for, it can be stitched and cured along with caesarian incision. Dr. Chiragh was present in the operation theatre. According to him, the wound that he observed on the uterus was an incision and not rupture. This clearly is indicative of fact that the only wound on the uterus was of caesarian incision and not of any rupture. We may recall that Dr. Chiragh Muhammad was almost an eye-witness and not a defendant/party in the instant case. The very evidence on record leads us to conclude that the instant death was never a result of rupture of uterus.
37. Cause of death can only be gathered safely through a postmortem examination which was never conducted in the instant case. The only evidence to this effect is the death certificate issued by Dr. Samina Afroze as Exh.P.8 but Dr. Samina never appeared in the witness box to prove the correctness of such certificate. It was produced by Dr. Latif-ur-Rehman, P.W.5 regarding whom no permission was sought to be examined as secondary evidence.
38. It is proved from the record that Dr. Samina Afroze was never present in the operation theatre and had no charge of the patient at all. It is admitted by the plaintiff's witnesses that the death certificate can be issued only by a doctor who treated the patient and was present at the time of death. Thus, the certificate Exh.P8 cannot be relied upon, more particularly, when in the light of evidence we have already held the view that rupture of uterus did not occur at all. Although not proved by. Dr. Samina Afroze yet there is a treatment chart (p.279) on file from AlRehman Hospital and by the same Dr. Samina Let us presume that she received the patient when arrived at Al- Rehman Hospital. It contains no reference of rupture of uterus at all, as claimed and shows that syntosinon was even prescribed by such doctor.
39. The long and short of what has appeared on record, we are of the unavoidable view that the plaintiff has failed to prove that the patient died of rupture of uterus or that the rupture had at all taken place. No act of the defendants either of negligence or of omission is proved to have been the direct and immediate result of the unfortunate death of Mrs. Adeeba Aman. Consequently, the appeals are accepted, the impugned judgment dated 1-12-1997 is set aside and the plaintiff's suit for damages is hereby dismissed.
(Sd.)
RANA BHAGWANDAS, J.
(Sd.)
SARDAR MUHAMMAD RAZA KHAN, J.
' Dissenting judgment containing 72 pages is herewith attached.
(Sd).
HAMID ALI MIRZA, J.
ORDER OF THE BENCH ' In view of the majority judgment of two to one, the appeals are accepted, the impugned judgment dated 1-12-1997 is set aside and the plaintiff's suit for damages is hereby dismissed.
(Sd.)
RANA BHAGWANDAS, J.
(Sd).
HAMED ALI MIRZA, J (Sd.)
SARDAR MUHAMMAD RAZA KHAN, J.
' HAMID ALI MIRZA, J.- These two civil appeals are directed against judgment and decree dated 1-12- 1997 in R.F.As Nos.28 & 41 of 1996 passed by learned Division Bench of the High Court of Balochistan, Quetta, whereby R.F.A. No,28 of 1996 was dismissed whereas R.F.A. No,41 of 1996 was allowed, thereby judgment and decree dated 22-8-1996 passed by learned Senior Civil Judge, Quetta were maintained with modification in enhancing the decretal amount from Rs,1 million to Rs,10 million.
2. Facts in brief of the case are that the respondent/plaintiff instituted a suit for recovery of Rs,Ten million as compensation/damages sustained by him on account of negligence and careless acts and conduct of the administration of Pakistan General Hospital, Quetta which is represented by its Managing Director Mrs. Alia Tareen, and against the appellant Dr. Siddiqa Haq, Gynaecologist of said Hospital. The respondent/plaintiff Amanullah has stated in the plaint that he was blessed with three children out of wedlock with Mrs. Adeeba Aman who were born by normal delivery and that when she conceived fourth time, she started visiting clinic of Dr. Mrs. Mahrukh Kansi from time to time and was given expected date of her delivery as 27-10-1989 and when the date of delivery became nearer, she consulted appellant Dr. Siddiqa Haq and continued to visit her maternity section in the Pakistan General Hospital Quetta which section was being supervised by Dr. Siddiqa Haq as Gynaecologist. Under the instructions of said doctor, Mrs. Adeeba Aman visited the hospital on 29-10-1989 at 10-40 a.m. When she was informed that her delivery by that date had become overdue by one week and she was to get admitted in the hospital where she was admitted at the said time and date. After her admission on 29-10-1989 at 10-40 a.m., the Gynaecologist at 5-00 p.m. Decided to deliver the baby through Caesarean Section as such anaesthetist Dr. Hussan Ara was consulted by the appellant Dr. Siddiqa Haq, who showed her inability to give anaesthesia through available anaesthetic machine in the appellant's hospital, however she was prepared to give anaesthesia at Al-Rehman Hospital where as per statement of appellant Dr. Siddiqa Haq, the patient was removed from the appellant's hospital to Al-Rehman Hospital in between 5-30 p.m. To 6-00 p.m. When as per her notes Exh.P/13-A, she conducted caesarean section at 7-00 p.m. And ultimately a female baby was born and the patient remained in the Operation Theatre and was shifted from there to the private room, at about 8-30 p.m. And she, as per her statement, received telephone call at 5-30 a.m. On 30-10-1989 from her staff nurse Doli and came to know that patient had expired.
3. The respondent/plaintiff filed suit for compensation/damages on the grounds mentioned in para. 3(a) to (m), paras 4, 5 & 6 of the plaint. The appellants/defendants filed written statements separately wherein they denied all the allegations made in the plaint. After framing of issues learned trial Court recorded the evidence of both sides and decreed the suit of the respondent/plaintiff in the sum of Rs, One million holding that death of Mrs. Adeeba Aman occurred due to negligence, recklessness and carelessness of the appellants/defendants while gave benefit of doubt to appellant Dr. Siddiqa Haq on the ground that she being a qualified gynaecologist was not responsible for the anaesthesia apparatus and was at liberty to take decision whatever she thought fair and proper for saving the life of patient in case of emergency, thereby issue No,1 was answered in affirmative to the extent of the appellants except the appellant Dr. Siddiqa Haq.
Learned trial Court also held that besides negligence and recklessness having been proved, the death of deceased occurred due to repture of uterus and postpartum shock as per evidence and certificate Ex.P/8. The appellant-Pakistan General Hospital and two others preferred R.F.A. No, 28 of 1996 whereas the respondent/plaintiff Amanullah preferred R.F.A. No, 41 of 1996 before the High Court of Balochistan, Quetta against the judgment and decree dated 22-8-1996 passed by Senior Civil Judge, Quetta when both Appeals were heard by learned Division Bench of the High Court, thereby Appeal No,28 of 1996 was dismissed whereas Appeal No,41 of 1996 filed by the respondent/plaintiff was allowed, enhancing compensation/damages from Rs, One million to Rs, Ten million in favour of the respondent/plaintiff against the appellant Pakistan General Hospital and also against the appellant Dr. Siddiqa Haq jointly and severally holding them to be responsible for the negligence and carelessness. Against the said judgment and decree, instant present appeals have been preferred in this Court.
4. We have heard learned counsel for the parties and perused the record minutely and also have gone through the case law cited by learned counsel for the parties.
5. Contentions of learned counsel for the appellant surgeon are that author of death certificate Ex.P/8 stating cause of death was not associated with the operation nor was Gynaecologist, therefore, the said certificate was of no evidentiary value and further removal of the patient to the Al-Rehman Hospital was not the cause of death and further there was no negligence on the part of the appellant surgeon and that there was no lapses on the part of the Pakistan General Hospital in any manner which could be the cause of death of the patient and further that uterus was not ruptured, the bleeding was timely stopped and the drip of syntosinon did not cause the rupture of uterus leading to the death of the patient. It was further submitted that there was no iota of evidence to prove that the appellant surgeon or the Pakistan General Hospital was in any way negligent and careless in handling the patient and further that the cause of death could have been ascertained only through post-mortem examination which was not conducted, therefore the allegation of uterus having been ruptured was fictitious and false considering also.That in case of rupture the child would not have been born alive, when the appellant surgeon was in practice as Gynaecologist since last more than thirty years, therefore no negligence could be attributed to the surgeon/appellant. Learned counsel for the appellant Mrs. Alia Tareen, Managing Director of the Pakistan General Hospital, submitted that learned Division Bench and the Court below have not considered the evidence on record which did not prove the acts of carelessness and recklessness on the part of both of the appellants considering that the hospital was well-equipped with all necessary equipments for conducting various kinds of operations since long and the operation was performed by the qualified Gynaecologist and that one anaesthesia machine was sent for repair while another was available in operatable condition but the anaesthetist Dr. Hussan Ara was not accustomed to operate the same, therefore the patient was operated upon in AI-Rehman Hospital. Learned counsel in the end submitted that in any case the hospital authorities were neither careless nor reckless nor the hospital was ill-equipped with necessary equipment so as not to admit the patient for such operation, therefore they were not liable to any sort of damages or compensation. Learned counsel for the appellants placed reliance upon (i) Haji Salman Ali & Co. v.
Province of Balochistan through Secretary Irrigation & Power (PLD 1994 Quetta 13) and (ii) Kayumarz v. M/s. Mohammadi Tramway Company (PLD 1968 Karachi 376).
6. Learned counsel for the respondent/plaintiff has submitted that learned Division Bench of the High Court and learned Senior Civil Judge have, after appreciation of entire evidence on record and the case law, arrived at correct concurrent finding of fact with regard to the negligence, carelessness and recklessness on the part of the appellants/defendants and there being no misreading, non-reading or any illegality with impugned judgments, interference was not called for. He further submitted that evidence on record would show that the appellant hospital was ill- equipped and the appellant surgeon did not act and conduct herself as a professional surgeon with due care and caution in managing the patient before and after the delivery. He further urged that no professional surgeon could have left the patient after post-operation unattended by well- qualified doctor to look after the patient. He submitted that the case of the appellant surgeon in the written statement was simple denial of the facts while in evidence she has made improvements in violation of the practice and rules and further that the appellants/defendants have failed to show the presence of PW-3 Mrs. Lazarus and further to prove that appellant surgeon managed, behaved and conducted herself towards her patient as a professional surgeon before and after delivery and maintained all medical relevant record of the case required as per practice by a professional surgeon. He has placed reliance upon (i) Government of the Punjab through Secretary Health v. Salamat Ali Khan (PLD 1991 SC 699), (ii) Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and another (AIR 1969 SC 128), (iii) Achutrao Haribhau Khodwa & others v.
State of Maharashtra and others (1996 PSC 1200), (iv) Lindsey County Council . v.. Marshall (1936 AER (Vol.2) 1076), (v) Gold and others v. Essex County Council (1942 AER (Vol. 1) 326), (vi) Collins v.
Hertfordshire County Council and another (1947 AELR (Vol.1) 633), (vii) Cassidy v. Ministry of Health (1951 AELR (Vol.!) 574), (viii) Jones v. Manchester Corporation and others (1952 AELR (Vol.2) 125).
7. I have the benefit of going through the judgment of my learned brother which has been concurred by my another learned brother Judge but I express my inability to concur with the said findings arrived at by both my learned brother Judges who have reversed the concurrent findings of facts of two Courts below when there being neither misreading nor non-reading of evidence so also no violation of principles of law laid down by this Court time and again, without also taking into consideration prevailing conditions of hospitals and conduct of doctors in our society of this developing country where doctors have forgotten their Hippocratic Oath sworn to serve humanity.
8. Before dealing with the principles of law laid down by the superior Courts time and again, it would be necessary to consider the evidence on record. The admitted position in the case is that deceased Mrs. Adeeba Aman aged 26 years was to undergo fourth time delivery of baby for which she, after conceiving the same, remained periodically under antenatal care of the doctor vide Exhs.P/10, P/10-A, P/11, P/11-A, P/12 and P/12-A of the appellant's hospital. On the doctor's advice she went to the appellant hospital on 29-10-1989 where she was admitted at 10-40 a.m. When on her admission her condition was found to be good so also foetal heart sounds were held to be good and also the blood pressure of the patient was noted as 120/80 mHg so also her general condition was good as per Exh.P/13-A. The patient was given 10 units of syntocinon in 1000 cc D/W (Dextrose Water) 30 drops per minute with direction that foetal heart sounds be checked regularly and progress of labour pains with regard to interval of contraction of uterus be noted so also time of rupture of membranes. From Exh.P/13-A, which is the case sheet on the printed form of the appellant Pakistan General Hospital, it would appear that after 10-40 a.m., the patient was neither taken care of nor looked after as would appear that no progress/condition of the patient was recorded in the case sheet Exh.P/13-A till 2-00 p.m. When it was mentioned that "there were mild contractions with 10 to 15 minutes interval" and thereafter at 4-00 p.m. It was noted that "membranes were ruptured, Cervix 6 c.m., head in mid cavity, meconium stained with liquor, foetal heart sound good" and thereafter at 5.00 p.m. It was noted that "foetal heart regular 160 per minute, Oxygen inhalation started, foetal heart getting irregular. Advised caesarean section. Prepare for caesarean section".
9. There is nothing in the case sheet with regard to time the patient was shifted from appellant's hospital to Al-Rehman Hospital and when it reached there and whether any instructions to the latter hospital were given about the arrival of the patient for caesarean section so as to prepare the operation theatre for the same and to get the equipments sterilized. There is also no mention that the patient was even shifted to the Al-Rehman Hospital, however, case sheet mentioned that at 7-00 p.m. Caesarean section was performed by the appellant Surgeon with assistance of Mr. M.
Qureshi and staff nurse Doli, when Dr. Hussan Ara was the anaesthetist. The procedure of performance of the caesarean section has been stated in Exh.P13-A which reads:- "abdomen opened by pfannenstiel incision (transverse incision ) in the lower abdomen after with aseptic measures adopted. Ut (uterus) presented into the wound. Lower segment caesarean section done. A healthy female child living foetus extracted. Umbilical cord was several times surrounding the neck. Placenta removed. Uterus closed in layers, when peritoneal layer was closed to be sutured, that patient started having PPH (postpartum haemorrhage). Uterus was atonic and lax. All measures to control PP bleeding immediately adopted and abdomen closed in layers after the uterus was empty and contracted. Pt. (patient) recovered in the O.T. B.P. 90/60".
' After 7-00 p.m. There is no recording of condition of the patient with regard to pulse, B.P. And etc. Till 11-00 p.m. In the case sheet Exh.P/13-A. There is also nothing in the case sheet as to when patient was shifted from the Operation Theatre to her allotted room as well. At 11-00 p.m. It mentions "Pulse, B.P. Be recorded 1/4 hourly, watch for vaginal bleeding" however there is a prescription noted in the case sheet, Exh.P/13-A, with regard to the medicines which were to be administered to the patient, viz.
(i) Inj. Velosef,500mg i/v 8 hourly
(ii) Inj. Decloran 2cc 6 hourly after checking BP SOS
(iii) Inj. Methergin i/v 6 hourly for 24 hours
(iv) Syntocinon 50 units in 1000 cc i/v drip (continues)
(v) Blood transfusion 2 Pints
(vi) Inj. Tramadol i/m stat ' Then at 11-30 p.m. Note is made in Exh.P/13-A that "condition is satisfactory B.P. As 110/60, uterus normally contracting, no bleeding per vagina". There is no recording of the condition of the patient from 11-30 p.m. Till she breathed her last, in Exh./13-A. There is nothing as to when death occurred and what was the condition of the patient before her death and what steps were taken by the doctor or attending nurse. Exh./13-A also does not mention that the medicines and blood prescribed were administered and given to the patient after 11-00 p.m. As stated in Exh.P/13-A or not as no record has been made in the said case sheet, which ordinarily is to be made by the attending nurse.
10. So far the ocular version in support of the case of the respondent/plaintiff, the learned Division Bench of the High Court after minute scrutiny of evidence of the parties came to the finding that (i) the appellant-Pakistan General Hospital was not fully equipped with necessary equipments needed for the caesarean section so that the anaesthetist Dr. Hussan Ara could have administered anaesthesia to the patient, wife of the respondent/plaintiff, consequently after prolonged obstructed labour and after administering the synotocinon at the time of admission got shifted the patient viz. Wife of the respondent/plaintiff from their hospital to Al-Rehman Hospital so as to accommodate their own anaesthetist Dr. Hussan Ara who had declined to operate over the anaesthesia machine of the appellant hospital, (ii) came to conclusive finding after appreciation of evidence on record that appellant hospital management and Dr. Siddiqa Haq both have committed such acts and omissions which amounted to negligence by protracting, prolonging the labour pains caused by mismanaging and not taking due care during pregnancy, labour pains and after delivery, particularly after caesarean section when no doctor was left behind by the appellant surgeon to treat and manage the patient with due care and caution leaving behind only a nurse of which nothing has been brought on record if the said nurse was qualified trained having such experience of attending such a serious case, thereby both remained negligent in treating the patient and medical management of delivery which no professional person of ordinary skill could be expected. Learned Division Bench has concurred with the findings of facts of the learned Civil Judge having reassessed and scrutinized the evidence on record minutely and found that besides the ocular testimony of the respondent/plaintiff, there was admitted documentary evidence of the respondents side produced by them at the late stage proved the negligence and mismanagement of the delivery of the patient after caesarean section which could not be expected from a professional person having such a long stated to be experienced in such cases.
11. The respondent/plaintiff in his deposition has fully corroborated what was stated in the plaint with regard to omissions and commissions on the part of the appellants giving full details whereas suggestions made in the cross-examination by the appellants' learned counsel were denied. I have also found that his testimony could not be shaken in the cross-examination by the appellants/defendants' learned counsel. The respondent/plaintiff's testimony is corroborated by PW-1 Muhammad Azeem, O.T. Assistant, who was present in the Operation Theatre, who deposed that when the operation commenced there was free flow of the blood and the appellant/surgeon got panicky and sent for Dr. Chiragh and that the patient was given two bags of blood. So far the presence of PW-1 Muhammad Azeem in the Operation Theatre, DW-1 Dr. Chiragh Muhammad Khan admitted that some of the staff of Al-Rehman Hospital was available in the theatre. DW-2 Dr. Hussan Ara also stated that besides the staff of Pakistan General Hospital, staff of Al-Rehman Hospital was also present so also DW-3 Mrs. Lazarus. In view of above evidence the presence of PW-1 in the operation theatre cannot be doubted, therefore his testimony with regard to other factual aspects of the case was confidence inspiring. The respondent/plaintiff also gets corroboration from PW-2 Lady Dr. Mahrukh Kansi in respect of the fact that Mrs. Adeeba Aman remained under her prenatal care for some period and further that inducement of labour pains could be deferred to a period of ten days beyond the date of expected delivery and therefore the fact that the delivery was overdue by seven days would not have been critical for the patient in case the delivery would have been further deferred. P.W.2 also has supported the respondent/plaintiff on the point that syntocinon could cause irregular heart beat in the foetus and also cause foetus death so also rupture of uterus, in case the delivery is prolonged and protracted.
However, her statement that child in the uterus cannot survive if the rupture of uterus takes place would not be correct in view of the opinion of renowned Gynaecologists as mentioned in the medical books and in the research papers as reproduced hereinafter. It may also be observed that no question was put to PW-2 as to for how much period, in case uterus is ruptured, the child could be extracted alive. The respondent/plaintiff is also corroborated by P.W.2 Dr. Latifur Rehman in respect of the fact that the patient was in shock when she was brought to Al-Rehman Hospital and appellant Surgeon also got confused.
12. P.W.7 Dr. Abdul Nasir has also fully corroborated the testimony of respondent/plaintiff. He has deposed that when he reached in the Al-Rehman Hospital he found respondent/plaintiff along with his other relations and respondent/plaintiff was holding a prescription which mentioned Dubetrex and Decodran, medicines having been sent for by the appellant surgeon to be administered to the patient and on seeing the said prescription he became upset as the said medicines are to be given to a patient when one is found to be in shock. He has defined the word `shock' that "when the important organs of the body fail to get proper supply of blood." The word 'shock' has been defined in:
(i) Butterworth Medical Dictionary: Shock: "The general bodily disturbance following a severe injury. A clinical syndrome characterized by a subnormal temperature a fall of blood pressure, a feeble, rapid pulse, pallor, a cold moist skin, often vomiting, restlessness and anxiety the causal agencies are numerous: trauma, haemorrhage, severe burns, coronary thrombosis, perforation of an abdominal viscus, dehydration, electric currents of high voltage, etc. An emotional or moral upset occasioned by some disturbing or unexpected experience.
' Obstetric shock: Shock occurring after childbirth. It is usually secondary to internal or external haemorrhage, operative intervention, precipitate delivery or excessive interference during the third stage. Occasionally there is no apparent cause.
' Oligaemic shock: Shock due to rapid loss of large quantities of blood."
(ii) Chambers Dictionary: "a violent impact, orig. Of charging warriors: a dashing together: a shaking or unsettling blow: a sudden shaking or jarring as if by a blow: a blow to the emotions or its cause: outrage at something nerves, as by electricity: the prostration of voluntary and involuntary functions caused by trauma, a surgical operation, or excessive sudden emotional disturbance: a stroke of paralysis (coil.)- v.t. To meet or assail with a shock: to shake or impair by a shock: to give a shock to: to harrow or outrage the feelings of: to affect with violence."
(iii) Oxford Advanced Learner's Dictionary: "a feeling caused by the very unpleasant happening suddenly; the event, etc. That causes this: the news of his mother's death was a terrible shock to him. The result of the election came as a shock to us all. It gave me quite a shock to be told I was seriously ill."
(iv) Blakiston's Gould Medical Dictionary: "The clinical manifestations of defective venous return to the heart with consequent reduction in cardiac output. Manifestations of this circulatory insufficiency include hypotension, a weak thready pulse, tachycardia, restlessness, pallor, and diminished urinary output. Shock may be classified according to mechanism, as cardiogenic, vasogenic, neurogenic, or hypovelemic."
' Form the perusal of above definitions nowhere it has been said that if one is said to be in state of "shock" one could not be in such position "murmur or show his restlessness" considering that there are several types of shock which take place in particular non-functioning or improper functioning of the organs of the body of a human being. P.W.7 further deposed that he also saw Dr. Chiragh Muhammad Khan going to the operation theatre and then he came to know that the said Doctor was called by the appellant Surgeon as the bleeding was not being controlled by her, for which they also arranged five bottles of blood in emergency. He further deposed that when the patient was taken out from the operation theatre, from her condition it appeared that she was in shock and she remained from that time till the time of her death in irreversible shod which fact also stood corroborated that since the time she was catheterized till her death there was 200cc of urine collected in the bag which proved unsatisfactory condition of the patient. He also stated that catheterization was done prior to the caesarean section and whatever urine was in the urinary bladder was discharged in the bag and thereafter there remained no urine in the bladder to discharge. He further deposed that it appeared that the patient was in shock even in the Pakistan General Hospital therefore the appellant could not even wait for his arrival there and shifted the patient to Al-Rehman Hospital as the appellant surgeon knew the serious condition of the patient when it would have been the best if the anaesthesia machine could have been brought over to Pakistan General Hospital. He further deposed that in case the operateable anaesthesia machine was not in working condition in the Pakistan General Hospital, the patient should not have been admitted in the said hospital, considering also the fact that after admission of the patient no ultrasound of the patient to ascertain the position of the foetus was carried out and to find out the handicaps and defects for the passage of foetus and to ascertain the expected date of delivery and to find out other related positions and abnormalities, if any, and to see if the umbilical cord has collapsed or surrounded any part of the uterus or foetus or the same was causing any problem for the foetus. P.W.7 Dr. Abdul Nasir has also given details which could cause complications for the foetus and the mother in case due care and management is not made and ultrasound is not carried out before delivery. He further deposed that syntocinon is given after 14 days of expected date of delivery which drug is to be administered carefully only when it is apprehended that delivery was to be made through caesareasn section and for that the hospital was to be fully equipped for the operation purpose. P.W.7 also corroborated the respondent/plaintiff by deposing that other assisting staff of Al-Rehman Hospital was also present in the operation theatre along with the appellant surgeon. He further deposed that the appellant surgeon from the clinical point of view should not have got induction in the case when the delivery was only two days more than that of expected date of delivery. He also corroborated the plaintiff that the patient was twenty-six years old and remained under the prenatal care of doctors and was having normal, Blood Pressure of 120/80 and previously had given normal birth to three children. He also deposed that the patient, after operation till her death, intermittently was making utterances which often happen in the state of shock, which would not amount to hold that the patient was not in the state of shock. He admitted in the cross-examination that at the time of death of the patient he had given her soda- bicarbonate because she was in Metabolic Acidosis. Metabolic Acidosis has been defined in Butterworths Medical Dictionary second edition as "Acidosis arising from an accumulation of H+ ions in body fluids either because of excessive production (e.g. Diabetic coma, hypoxia)by metabolic process, or failure of normal elimination by the kidney (renal failure) or excessive administration of acids. The excess H+ ions are buffered by HCO3 ions in the blood and tissues, thus reducing [HCO3 The excess CO' so formed leads to a rise in PaCO2 and this stimulates respiration to promote elimination of CO2.", whereas the word 'hypoxia' has been defined as "A supply of 0 to the tissues which is inadequate to maintain normal tissue respiration. This is reflected by an alteration in the redox state of the respiratory enaymes systems to a more reduced state and a reduction in the concentration of high energy phosphates in the tissue". He in the cross denied that the bed sheets were not wet with blood of the deceased which were got replaced by the appellant surgeon at 11.00 p.m. When she was called from her house to check the bleeding, which remained in the possession of the staff of the hospital. PW-7 Dr. Nasir was cross-examined at length but his credibility could not be shaken with regard to the fact about the negligence, recklessness, mishandling and improper post-operative management and care of the deceased/patient, the respondent's wife. Mere fact that P.W.7 was the brother of deceased would not amount to that he was interested witness, considering the fact that he himself being a professional Doctor knew the general principles of medical care and the post and pre operation management and his testimony having not been discredited in the cross-examination when his presence in the hospital has not been denied by the appellant/defendant. His testimony being of a qualified doctor which also on the face of record would appear to be just and fair not biased considering the said testimony is corroborated by medical books, the relevant parts of which are being reproduced hereinafter. P.W.8 Muhammad Wasay has deposed the condition of the respondent/plaintiff after the death of his wife. Mrs. Adeeba Aman.
13. On scrutiny of the appellant/defendant's evidence on record it would appear that DW-1 Dr. Chiragh Muhammad Khan, was admittedly called by the appellant Dr. Siddiqa Haq to assist her as the patient Mrs. Adeeba Aman was profusely bleeding and former was not in a position to control the bleeding and the fact that he was told by the said appellant/defendant that the uterus of the patient was not contracting, however, he deposed that then uterus started contracting and the bleeding was stopped and he helped the appellant surgeon in stitching the wound and then went away. He in the cross has corroborated the evidence of the respondents/plaintiff, that it was necessary/obligatory for the hospital to keep all the relevant equipments and anaesthesia machine and etc. For the performance of operations in operateable condition and further that some of the staff of Al-Rehman Hospital was available in the theatre which fact has been denied by the appellant surgeon andin the said respect her version has been belied by her own witness.
He also corroborated that in case anaesthesia machine was out of order the operation should not have been performed in the hospital and further that he had assisted the appellant surgeon for 30 to 45 minutes. DW-1 has shown ignorance so far omissions and commissions deposed by the respondent/plaintiff on the part of the appellant surgeon and stated that he arrived during operation, therefore he could not say as on opening of the abdomen what appeared to be there in the first instance. DW-1 is a professional colleague of the appellant Surgeon has given concessional/obliging statement by stating that wound was not ruptured but it was incised wound.
The fact that the appellant surgeon was not in a position to find out the bleeding point and thereby failed to control the bleeding hence D.W.1 Dr. Chiragh was called would show the incompetence of the appellant surgeon in handling the caesarean section not becoming of a professional specialist/gynaecologist by not taking reasonable care and caution.
14. D.W.2 Dr. Hussan Ara has deposed that she arrived in AlRehman Hospital at the call of the appellant surgeon when the patient was already in the operation theatre. She stated in the cross that besides staff of Pakistan General Hospital, the staff of Al-Rehman Hospital was also present in the hospital. She has supported the case of the appellant surgeon. She in the cross, however, corroborated the version of the respondent/plaintiff by admitting that the patient for operation is to be admitted only where the facility of administering anaesthesia is found available. She stated that she has remained attached with the appellant surgeon in 20/25 cases and that operation took 1-1/2 hour. She also admitted that bleeding point was not being found, therefore DW-1 was called as uterus was not contracting, therefore it was bleeding. She stated that D.W.1 Dr. Chiragh Muhammad Khan was an Orthopaedic Surgeon and better Gynaecologist Surgeon and has also performed caesarean operation, whereas D.W.1 himself has denied to have even worked in the Gynaecology. D.W.2 went to the extent by stating that D.W.1 has also performed hysterectomy. The above statement would show the extent of interest of D.W.2 in showing undue favour to the appellant surgeon in order to save her from the consequences of the damages considering also the fact that she was often called by the appellant surgeon to assist her in the conduct and performance of caesarean section and other operations so that she could be paid her due fees for the performance of her job. It may also be observed that D.W.2 has gone to the extent of stating that D.W.-3 Mrs. Lazarus was present in the Operation Theatre whereas Exhs.P. 13/14 which mention date as 29-10-1989 and time as 11-00 a.m. Which document was admitted by D.W.3 to have been prepared by her which showed that she was not stating the truth. In the circumstances the testimony of D.W.2 could not be called to be reliable, satisfactory and confidence inspiring.
15. D.W.3 Mrs. Lazarus has deposed that at about 3-00 p.m. Condition of Mrs. Adeeba Aman became serious as such she informed the appellant surgeon who arrived at about 3-30/3-45 p.m.
In the labour room when the latter examined again the patient at about 4-30 p.m. And told her that foetal heart beat was not sound and should get O.T. Persons alerted as the patient might be operated upon which she did when the O.T. People informed her that one anaesthesia machine was not operateable while another was available for the needful which she informed the appellant surgeon when the latter contacted the anaesthetist and informed her about another machine to which the anaesthetist declined and suggested that the patient be shifted to Al-Rehman Hospital and such conversation went on till 6.30/6.45 p.m. In Pakistan General Hospital. It may by observed that other D.Ws. Have given different story with regard to departure of the patient from Pakistan General Hospital to Al-Rehman Hospital with regard to time and their arrival. She also deposed that the patient was shifted along with drip and they took the other medicines for going to Al-Rehman Hospital with one blood bag with them, which matched with the blood group of the patient, and further that baby was delivered at 7-45 p.m. And at the final stage after caesarean section, the appellant surgeon, on re-examination found that the patient was to some extent bleeding from the uterus which according to nurse often happened in such cases. D.W.3 has deposed inconsistent and contradictory to what has been deposed by D.W.1 Dr. Chiragh who deposed that on his arrival bleeding was controlled who also asked to recheck if there was still bleeding, and on re- examination okayed and asked the appellant surgeon to complete her job, whereas D.W.1 Dr. Chiragh has deposed that he has assisted the appellant surgeon and stitched the uterus and abdomen. She has further deposed that she at 8-30 p.m. Sought permission to leave for home and returned after changing her clothes and the appellant surgeon Dr. Siddiqa Haq also left whereas the appellant surgeon herself has stated that at 10-30 p.m. The patient's blood-pressure was normal, vaginal bleeding was normal so also the patient, however she sought permission of Dr. Qayyum to leave the hospital for home and new nurse of Al-Rehman Hospital had also reached and after 1/2 hour after reaching home, she received a call from the hospital that the patient was bleeding. She has also deposed that on return of the appellant surgeon the patient was examined by the appellant surgeon and nothing was found and then the appellant surgeon and Dr. Hussan Ara left after seeking permission from Dr. Qayyum whereas D.W.2 Dr. Hussan Ara has stated that she had left after shifting the patient to her room having found in normal condition by 8-30 p.m., this would show that D.W.3 has from the very beginning given inconsistent and contradictory statement to those of other D.Ws. And even belied the statement of D.W.1 with regard to having assisted the appellant surgeon in stitching and also of the fact that anaesthetist had left at 8-30 p.m. D.W.3 has also contradicted D.W.2 that at 10-30 p.m. The appellant surgeon checked the blood-pressure in presence of Dr. Qayyum and Hussan Ara. She has herself contradicted her own statement when she deposed that she came at 2-00 p.m. And took over the charge from the morning shift nurse whereas she admitted that Exh.P/14 to be in her own handwriting which Exhibit mentioned the date 29-10-1989 and the time as 11-00 a.m. Which fact itself belied her statement, so also she stated in the cross that her duty commenced at 2.00 p.m. Then how could she prepare Exh.P/14 at 11-00 a.m. It would not be out of place to state here that if she was a trained nurse then why she was unable to state the names of drugs which she stated to have been given by Dr. Nasir for reducing the trouble of the patient. She has also in the cross contradicted her own statement with regard to Exh.P/14 that she has been attending evening and night shifts and did not give the name of the nurse from whom she took over at 2-00 p.m. And avoided by saying that she has forgotten. It may be observed that learned trial Judge has also made a note in the deposition that the witness was avoiding to give proper replies to the questions put to her. She has also contradicted in cross other D.Ws. And even D.W.1 that Dr. Chiragh was not called by the appellant Surgeon for getting the bleeding stopped to assist the surgeon. She also stands contradicted by D.W.1 by stating that he remained there only for 5 to 10 minutes or even less than that. She has also contradicted D.W.2 by stating that during operation no blood was sent for, whereas D.W.2 stated that they sent for the blood and received two blood bags in the O.T. She has not even mentioned in Exh.P/13-A as to what medicines were given to the patient after the appellant surgeon left the hospital. She has also belied the defendant/appellant Surgeon Dr. Siddiqa Haq who stated that in the second shift staff Doli came whereas she has said that she came in the second shift, thereby the appellant surgeon is being belied and contradicted by her own witness D.W.3. In case staff Doli came in the second shift then she should have been examined but she was not examined by the appellant/defendant which would show that D.W.3 has been brought in place of staff Doli, therefore the testimony of D.W.3 was not reliable and confidence inspiring and this fact would also show the conduct of the appellant surgeon who could go to that extent to substitute a witness in order to save herself, thereby the appellant/defendant surgeon's testimony could not be said to be even confidence inspiring and worthy to be believed.
16. D.W.4 the appellant surgeon has admitted the admission of Mrs. Adeeba Aman in the hospital and has deposed what has been mentioned in Exh.P/13-A. She has not denied that when the patient was admitted the condition of the patient was good so also of the foetus. She admitted that at 3.30 p.m. She found irregular foetal heart sounds, therefore directed to be given oxygen restoring the foetal heart sound. She has also admitted that one of the anaesthesia machines was sent for repair and she was advised by the anaesthetist Dr. Hussan Ara that the patient be got shifted to Al-Rehman Hospital. She has also admitted that the patient was being given drip, therefore the plea of the appellant surgeon that the patient walked from the labour room to her private room cannot be believed as no explanation has been given as to how she was shifted in such a condition or someone else had assisted her in taking the drip and other connected tubes to the room. She also admitted that after caesarean section D.W.2 Dr. Husan Ara told her that the patient's pulse was going weaker therefore the patient was given one pint of blood and for another it was directed to be arranged. She also admitted that the patient's uterus was relaxed and was not contracting. She also admitted that she called Dr. Chiragh to assist her in getting the bleeding stopped and by the time he reached bleeding had stopped and then they closed/stitched the abdomen. D.W.4, appellant surgeon stands falsified when she stated that when they reached in the Al-Rehman Hospital, there was neither doctor nor the staff of the Al-Rehman Hospital was in attendance, whereas D.Ws 1, 2 and 3 deposed that staffs of Al-Rehman Hospital were present.
D.W.4, appellant surgeon has admitted the presence of Dr. Nasir and Dr. Qayyum in the private room where after operation the patient was shifted and further she deposed that she left her staff of Pakistan General Hospital to look after the patient after the patient was operated upon. She has deposed that at 10-30 p.m. Blood Pressure of the patient was even checked by Dr. Nasir and Dr. Qayyum who found the same to be normal, whereas no such question was Suggested to Dr. Nasir.
It would appear from the testimony of appellant surgeon that she, with regard to condition of the patient has not mentioned the name of Dr. Nasir with regard to the satisfactory condition of the patient but has mentioned the name of Dr. Qayyum to have affirmed her statement because after close of evidence of the respondent/plaintiff appellant surgeon found that Dr. Qayyum was not examined therefore she mentioned the name of Dr. Qayyum and not of Dr. Nasir. She has also deposed that she while leaving at 11-00 p.m. Staff Doli was there to watch the patient whereas D.W.1 Mrs. Lazarus was examined to s substitute staff Doli and to get corroboration from her when she had not at all attended the patient either in the operation theatre or in the private room. It would not be out of place to state here that as the appellant surgeon left the hospital by 11-00.p.m. And during the whole night she did not receive any call but received staff Doli's call at 5-30 a.m. When she was told that the patient expired considering that Exh.P/13-A which was admitted and duly signed by the appellant surgeon it mentioned no condition at all about the patient. It will not be out of place to mention here that the appellant/defendant No,4 has given long story after 5-30 a.m.
Which according to her was told by staff Doli with regard to condition of the patient who was found to be all right and all of a sudden at 4-00 a.m. The patient complained of the pain to which said staff called P.W.7 Dr. Nasir who asked the said staff to give her pain killer to which staff nurse declined on which Dr. Nasir went out and brought some injection and gave it to the patient through i/v and then the condition of patient deteriorated after receipt of injection when Dr. Nasir asked the staff nurse to bring the patient down from her bed on the floor, and then Dr. Nasir started giving oxygen through mouth by artificial breathing. All this concocted story, when staff Doli was in fact attending the patient, would show that the appellant surgeon and the appellant hospital authorities were negligent in taking due care and caution in managing the patient before and after operation which cannot be expected in a reasonable manner from a specialist professional Doctor and Hospital' of so-called high repute. I cannot believe that the evidence of such a specialist, who could go to such an extent by bringing another nurse which in fact did nit at all attend the patient before or after operation considering the documentary evidence Exhs:P/13-A & 14 which falsified the fact that D.W.3 had attended the patient. The appellant surgeon has deposed that rupture of uterus cannot take place all of a sudden but it would take long time to get the same ruptured. It may be mentioned that the said statement of the appellant stands belied by the medical books which are referred below considering also the fact that the patient since the time of her admission was given syntocinon to accelerate her labour pains as such there was protracted/prolonged labour till caesarean operation was performed which ultimately could cause stress and strain and could lead to the rupture of uterus before or after caesarean section. The argument of the appellant surgeon that if uterus would have been ruptured baby could not be born alive stands falsified by the, books and research studies made by the Gynaecologists referred hereinafter in view of the datawise results given in the said Articles. In case, as stated by the appellant surgeon, without post-mortem examination the cause of death cannot be ascertained, then whose duty it was to get the post-mortem conducted upon the patient and who was responsible for failure, to carry out the same. In the stated circumstances because of unreliable and not confidence inspiring testimony of appellant surgeon her statement that uterus was not ruptured and there was no gross negligence on her part cannot be of professional person hence cannot be believed. The appellant surgeon has deposed, that Exh.P/14-A was written`in the hand of her staff when D.W.3 Mrs. Lazarus stated that same was in her handwriting which mentioned the date as 29-10-1989 and time as 11-00 a.m., whereas said D.W.3 throughout stated that her duty hours were from 2-00 p.m.
Onwards and further she used to, perform evening and night duties and appellant surgeon herself stated that staff Doli attended in the evening and night till the .Death of the patient. The appellant surgeon admitted that if foetus was in distress then its heart beat initially would rise to 160 to 180 and if one failed to get the child delivered then, the foetal heart sound would decrease and in case it decreased to 80 to 60 and became irregular then that condition would be very serious and in case of foetal distress, every five minutes, the foetal heart sounds would have to be examined and recorded by every doctor and nurse. It may be mentioned that at 4-00 p.m. Meconium was found stained with liquor which was sufficient signal for the appellant surgeon that the foetus was in distress but no immediate steps were initiated or taken to remove the foetus from distress but she waited long for carrying out or performing caesarean operation. She has admitted that the foetal distress could occur from cord compression, prolong delivery and use of certain drugs. It may also be stated that she has not put question or suggestion to Dr. Nasir the brother of the patient that after the patient was shifted to her private room after caesarean operation the latter spoke and enquired about the baby if the same was male or female. The said witness denied the suggestion that the respondent/plaintiff was negligent towards his wife, the deceased, or wanted at any cost that he should have male baby. It may also be observed that P.W.7 has pointed out the fact that after she was removed from the operation theatre she was in state of shock and from that time till her death was in irreversible shock which fact stood also corroborated that since the time she was catheterized till her death there was only 200 cc of urine in the bag which proved unsatisfactory condition of the patient. There is no denial of the said statement from the side of the appellants/defendants with regard to the collection of 200 cc of urine in the bag since catheterization till her death would prove that the patient had stopped discharging urine as she was undergoing low blood-pressure and the said condition continued with the result her kidneys stopped functioning which led to severe hypotension (fall in blood-pressure below normal range) therefore the patient was in the state of shock.
17. There is also no death form certificate nor death summary which should have been prepared by the doctor who if would have been left behind by the Surgeon to take postoperative care of the patient which was the duty and obligation of the appellant Surgeon and of the appellant hospital as the deceased was their patient. From the case sheet Exh.P/13-A it would appear that the patient when admitted was perfectly in good condition having no complication whatsoever which could have taken the unfortunate turn of death of a young lady of 26 years who had earlier given three births in normal way. It would also appear from the case-notes Exh.P/13-A that from 10-40 a.m. Till 5-00 p.m. After giving the patient drip of Syntocinon her labour was prolonged and protracted for about seven hours and then decision for Caesarean section was taken by the Surgeon. The appellant Surgeon has said that she was in the profession for more than thirty years and has performed many Caesarean section but it would not stamp her that she acted and behaved not in careless, reckless manner and did not mishandle the case of the wife of respondent by not managing her properly in accordance with the settled management principles during the process of delivery and thereafter.
19. There is no denial of the fact that the respondent's wife died after performance of caesarean section by the appellant/surgeon and the case sheet Exh.P/13-A also did not mention the fact with regard to her deteriorating condition after 11-30 p.m. The burden of proving negligence, recklessness and mismanagement in causing death of deceased Mrs. Adeeba Aman is of no consequence in the instant case considering that both sides have led evidence and the respondent/plaintiff has proved through reliable evidence the submissions made in the plaint and thereby discharged the onus while appellants could not bring reliable and satisfactory evidence to rebut the reliable evidence of the respondent/plaintiff. In the instant case, the appellants/defendants have pleaded that they being professional persons, therefore, it should be deemed that they have acted in good faith in handling the patient with regard to managing the delivery case and after caesarean section in accordance with normal routine of the practice, consequently the appellants/defendants acted carefully and according to settled principles of management of patient before and after delivery when in fact appellants/defendants in the circumstances of the case being the professional persons should have proved through reliable and satisfactory evidence that they acted in a professional manner and performed and managed the delivery and labour so also caesarean section as a professional person considering the respondent/plaintiff being layman and being not present in the operation theatre thereby would not be in a position to say or lead direct evidence.
' In a book "Halsbury's Laws of England" Fourth Edition Volume 30 in paras. 34 &40 it has been observed:
33. Negligence and duties owed to patients.--A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Whether or not he is a registered medical practitioner, such a person who is consulted by a patient owes him certain duties, namely a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give, a duty of care in administration of that treatment and a duty care in answering a question put to him by a patient in circumstances in which he knows that the patient intends to rely on his answer. A breach of any of these duties will support an action for negligence by the patient.
40. Liability of hospital authorities.--A hospital authority must use reasonable skill and care in carrying on the hospital and is liable for the acts or omissions of its permanent staff, whether they are surgeons, physicians or nurses or fall into any other category, in the course of their employment. In addition it seems that in principle a hospital authority is liable for the acts or omissions of any part-time or visiting consultants and specialists if they are employed as part of its organization for providing treatment, whether they are in law the employees of the hospital authority or not; for in such circumstances the hospital authority X undertakes the obligation of giving to any patient who require it treatment of the kind which she consultants and specialists are employed to provide. Services provided at national health service hospitals are so provided pursuant to statutory obligation, but the principle governing the responsibility of the authority, within the scope of the statutory obligation, is, it seems, the same.- A hospital authority is not, however, responsible for the acts or omissions of a consultant or specialist who is selected and employed by the patient.
19. The evidence on record would show that neither the appellant hospital nor the appellant surgeon acted as a professional person in dealing/managing the case of respondent's wife Mrs. Adeeba Aman, consequently they failed to discharge their duties and obligations in accordance with the settled principles of a professional person in taking care of a patient before and after caesarean section. Admittedly, none from the respondent side was allowed to enter into the operation theatre and watch the performance of caesarean section, therefore the appellants should have proved that it was performed according to the settled techniques and rules of surgery showing that there was no failure in the exercise of reasonable care and control during the delivery process of Mrs. Adeeba Aman so as to preserve her life and further should have shown that it was ensured that the condition of the patient was being properly monitored with adequate inspection and examination before the delivery of Mrs. Adeeba Aman keeping in view her as well as the condition of the foetus in view of having been administered syntocinon (oxytocin) and the protracted/prolonged labour when the position of foetus could have been ascertained through ultrasound which was not done in advance and so also the appellant failed to ensure the same after delivery i,e, 7-00 p.m. On 29-10-1989 so also after 11-30 p.m. It may also be pointed out that as the patient was before the date of delivery under the antenatal care of appellant Surgeon who was permanently attached with the appellant hospital should have known that all required equipments necessary for investigation and treatment were available in proper shape and order and then she should have got the patient admitted in the hospital in case the delivery was to be performed by caesarean section.
20. It may also be pointed out that caesarean section operation is to be conducted in every form of Dystocia (abnormal, a term used to indicate slow or difficult dilation of the cervix in labour, usually without pathological cause) and protracted labour: Abuse of caesarean section is likely to occur when all these necessary equipments are not available or are not in good condition along with untrained nursing staff and inexperienced staff in the management of complicated delivery when the patient is found to be in obstetric difficulty in delivering the child. After the operation by caesarean section is performed consultant has to ensure a good contraction of uterus otherwise there would naturally be free flow of bleeding which may cause death .Of the patient if not stopped and in some case the consultant/operator, finding no bleeding point have to perform hysterectomy in order to save the life of a mother.
21. It would also be not out of place to mention here that the appellants Nos.1 to 3 filed written statements on 19-10-1990 but none of the documents were filed with the written statements, which should have been filed. It may also be noted that the appellant/defendant No,4 filed written statement on 19-4-1990 but she too failed to file any document including the case sheet Exh.P/13-A until it was summoned by the respondent/plaintiff from the appellant hospital which document also bore the signature of the appellant surgeon and is also admitted one, therefore the question of it being not proved would not arise, considering that the written statements stated only denial of the contents without mentioning the stages, condition and progress of the patient from the time of admission till the time she breathed her last showing/mentioning in the case sheet Exh.P/13-A, that the patient was looked after and managed as per instructions given/stated to be as per established professional practice. As observed above that none of the respondent/plaintiff was permitted to be present in the operation theatre therefore it cannot be expected that any direct evidence with regard to the conduct and performance of the caesarean section and condition at the relevant time inside the theatre except the condition of patient at the time of her admission and subsequent developments seen or watched or observed by the respondent/plaintiff and the witnesses could be brought on record as evidence to support their case as stated in the plaint.
22. The staffs/employees assisting the consultant/operator could not be ruled out to be interested considering that they are paid employees of the hospital and would not depose adverse to the employer/hospital considering the society in which we have been living. Only one person out of the thousands could depose/state the truth which might be against the employer/boss considering also that no video was prepared or copy of it given to the other side in respect of conduct of caesarean section operation when it was in process which could be the direct evidence as to whether the patient profusely bleeded or before carrying out of the operation there was rupture of uterus.
23. There is no denial of the fact that syntocinon was administered soon the patient was admitted and her labour prolonged for seven hours when at 5-00 p.m. Decision was made for caesarean section to be performed and then at seven p.m. Caesarean section was performed. As per their case sheet Exh.P/13-A. According to the medial books which would be referred later on administering of syntocinon and prolonged labour and stress and strain upon the patient for such prolong period and her shifting from one hospital to another could be the causes of rupture of uterus. In case the appellant Surgeon and the hospital thought that everything was straight and clean why the case sheet was not prepared then and there and filed along with written statement but it was brought on record when it was summoned by the respondent/plaintiff from the custody of the appellant hospital and why death form certificate so also death summary was not prepared and filed by the appellant Surgeon. There is nothing on record to suggest that even after the performance of caesarean section by the appellant Surgeon, the appellant left there any other doctor except the nurse and for the latter also there is inconsistent and contradictory evidence to show that whether staff Doli attended the patient for caesarean section or Mrs. Lazarus in view of the ocular version of the appellants/defendants on record, to manage and look after the patient. It was the duty of the hospital and their Surgeon to have kept one doctor to manage and to treat the patient after post operation. Having not done so, all the above facts and circumstances would lead to prove that the appellants were negligent and careless so also in the skill which she possessed in the performance of caesarean section and making decision on time were not of as a professional person having such a long professional record which could have saved one human life. This would show that the appellant surgeon even did not act as an ordinary skilled person professing to have such skill, when she did not even leave a qualified doctor after caesarean operation to look after the patient who was in a serious condition which ultimate caused her death. This act cannot be said to be in accordance with practice accepted by proper responsible body of medical opinion. It is true as held by Lord Dunedin in Morton v. William Dixon Ltd. (1909 SC 807, 809) that "fault of omission should be one of two kinds, either to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances; or to show that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it". The above said fault of not leaving a doctor behind to look after the serious patient was obviously a folly amounting to gross negligence on the part of the appellant surgeon which cannot be approved by an ordinary skilled person, what to say of so-called senior consultant. What is said above is corroborated by the case sheet Exh.P.13-A which is an admitted document that the appellant surgeon did not maintain it as it should have been maintained by a person of ordinary skill showing from time to time the condition and state of a patient with regard to recording of pulse, blood- pressure, and other relevant condition and state of the foetus, so also as to which medicines were administered time and again. Can it not be called folly amounting to gross negligence, recklessness on the part of professional doctor. This cannot be said that the professional acted with utmost skill which she stated to possess. In case patient is left unattended by qualified doctor to check and examine the patient and to administer medicine prescribed in the chart, would it not lead to a probable consequence or foreseen, that something fatal could happen to the patient. No presumption could be drawn that because respondent/plaintiff left for home, therefore it be deemed that the condition of the patient was normal. It may also be observed that mere fact that D.Ws. 1 & 2 were not made defendants in the case would not mean that whatever they deposed, was truth, considering that veracity is to be judged by cross-examining the witnesses and other relevant consideration on the record. I have earlier considered that. D.W.1 has given obliging statement just to favour the appellant doctor while the D.W.2 has also not stated truth for certain professional considerations. D.W.3 has been held to have not attended the patient as said above then how could, her testimony could be believed that the patient walked over in Pakistan General Hospital from labour room and was perfectly all right in the operation theatre Al-Rehman Hospital and was talking on the table when the evidence on record and other circumstances showed that she was in shock. In case D.W.3 has not attended the patient then how could she depose that the brother of deceased Dr. Nasir gave injection and then the patient collapsed. In fact Dr. Nasir P.W.7 admitted that he gave soda-bicarbonate which cannot be said to be dangerous drug which could cause death, as it was administered keeping in view condition of the patient who was having hypoxia at the relevant time. It is not imaginable that the doctor brother of the patient would give such medicine which would cause death of his sister. There is no cavil with the dictum laid down in the cited cases quoted in paras. 14 & 15 of the judgment of my learned brother in the majority judgment. As I have observed on the basis of oral as well as documentary evidence that the appellants did not act and conduct themselves as a professional and their standard fell short of the standards of a reasonable skilful medical man as the appellant left no doctor behind to look after the patient who could have taken care of her in case he/she would have found that there was bleeding because of postpartum haemorrhage or rupture of uterus which could have been compensated/controlled timely by giving blood transfusion to the patient. A nurse left behind by the appellant would not be substitute of a qualified doctor who could handle serious patient considering also the fact that it was the responsibility of the appellants as the wife of the respondent was their patient. It may also be observed that there is nothing on record to show that the deceased had avoided to undergo ultrasonography, it was the duty of the consultant to have got it done in case she found that there were complications in the delivery. There is also no material that the respondent/plaintiff remained indifferent towards his wife and case cannot be decided on presumption and surmises. The observation that at 5-30 a.m. Staff Doli had informed the appellant surgeon that the patient had expired whereas Mrs. Lazarus who was examined as D.W.3 has deposed that she informed, how could Mrs. Lazarus be believed when the appellant surgeon has said that staff Doli has informed that patient has expired which would lead to confirm conclusion that Mrs. Lazarus has not attended the patient, therefore all what she deposed was false. I have myself examined and seen Exh.P/14 which is a photo copy of Exh.P/14-A but the same contained only two lines mentioning date as 29-10-1989 and time as 11-00 a.m. And in remaining two columns it has been mentioned "clean enema state D.W. 1000 cc plus Injection syntocinon 10 unit in Drip only". There is nothing with regard to recording of blood-pressure, heart-beat, pulse of mother and heart beat of foetus having been found perfectly normal from 11.00 a.m. To 4.00 p.m. As mentioned in para 31 of the majority judgment. Ex. P/13 is a photo copy of Exh.P/13-A consisting of four pages (two leaves) which bore the signature of the appellant doctor.
' It is true that chart at page 279 of the High Court paper-book Exh.P/7 was not proved as the author of it was not examined, therefore no reliance could be placed upon the same, however reliance has been placed upon Exhs.P/13 and P/13-A which are admitted and proved documents which itself showed the negligence, recklessness on the part of the appellant surgeon and the hospital in managing/maintaining the patient and record before and after delivery of the patient as observed above.
' Doctor/Surgeon/Operator cannot throw away her responsibility, after performing the operation, upon others though others who are their subordinates or associates .Would also be vicariously liable for the F commission and omission on their part but the Surgeon cannot skip her responsibility as well.
24. So far rupture of uterus Munro Kerr's Operative Obstetrics 8th edition in his book has observed that the rupture of uterus could take place at three distinct periods: (i) during pregnancy, (ii) during ordinary labour; and (iii) following protracted labour or difficult delivery. It has been stated in the said book at page 843 in the following words:- "To any one acquainted, however slightly, with obstetrics the mention of the rapture of uterus at once suggests a labour badly managed. Such a view is in the main correct, for without doubt, in the majority of instances, the accident must be considered discreditable to the obstetrics art, and to the individual who has had charge of he parturient. There are, however, exceptional cases in which the accident is unavoidable, notably in the post caesarean section group."
' It has further been observed in the same book under the heading "Rupture of Uterus after the Protracted Labour" that "commonest predisposing causes of rupture during protracted labour may occur spontaneously or be produced by violence during extraction of child referring to writer Krishna Menon." It has further been stated that uterus rupture has sometimes been erroneously attributed to the portion of manual removal of the placenta when in fact the accident had already occurred but had not been recognized until delay in the third stage had made it necessary for the accoucheur to insert his hand to remove the placenta and finally has stated that injudicious employment of oxytocin (a drug which causes contraction of uterine muscle) may cause rupture of the uterus. In addition it has been mentioned in the book under the heading "Premonitory Symptoms" by the author at page 855 of his book: "It is customary in cases of .Rupture in a protracted labour to discuss the symptomatology before and after rupture, because in a large proportion of cases there are distinct warning symptoms (although not in Caesarean scar rupture, as I have already explained).
' After a prolonged second stage, during which the expulsive forces have been trying in vain to expel the foetus, the patient becomes restless and complains of constant pain over the lower part of the uterus, while the uterine contractions tend to be more and more titanic (the state of prolonged contraction of muscle under quickly repeated stimuli). In addition, the pulse becomes more rapid and the temperature possibly rises slightly. Along with these symptoms there is vertical stretching of the lower uterine segment. This can be easily appreciated, for the "retraction" or Bandl's ring can be felt to rise higher and higher as already described (p.851). Furthermore one can sometimes appreciate that the wall of the lower segment is very thin, although as a rule it is so tense and tender that the foetal parts can be differentiated. With the uterus in such a state- a state into which it should never be permitted to pass-rupture may occur at any moment. However generally the above symptoms are prior to rupture. I have not had opportunities of judging, for with few exceptions the patients have been admitted to hospital after occurred but had not been recognized until delay in the third stage had made it necessary for the accoucheur to insert his hand to remove the placenta and finally has stated that injudicious employment of oxytocin (a drug which causes contraction of uterine muscle) may cause rupture of the uterus. In addition it has been mentioned in the book under the heading "Premonitory Symptoms" by the author at page 855 of his book: "It is customary in cases of .Rupture in a protracted labour to discuss the symptomatology before and after rupture, because in a large proportion of cases there are distinct warning symptoms (although not in Caesarean scar rupture, as I have already explained).
' After a prolonged second stage, during which the expulsive forces have been trying in vain to expel the foetus, the patient becomes restless and complains of constant pain over the lower part of the uterus, while the uterine contractions tend to be more and more titanic (the state of prolonged contraction of muscle under quickly repeated stimuli). In addition, the pulse becomes more rapid and the temperature possibly rises slightly. Along with these symptoms there is vertical stretching of the lower uterine segment. This can be easily appreciated, for the "retraction" or Bandl's ring can be felt to rise higher and higher as already described (p.851). Furthermore one can sometimes appreciate that the wall of the lower segment is very thin, although as a rule it is so tense and tender that the foetal parts can be differentiated. With the uterus in such a state- a state into which it should never be permitted to pass-rupture may occur at any moment. However generally the above symptoms are prior to rupture. I have not had opportunities of judging, for with few exceptions the patients have been admitted to hospital after rupture has occurred. As far as I have been able to gather, however, they were present in most cases.
' The classical symptoms and signs following rupture are sudden feeling of something giving way, cessation of uterine contractions, alteration in the shape of the abdominal swelling, haemorrhage and collapse.
' The symptom of a sudden feeling of something had given away, present in the majority of cases in which rupture occurs early in labour, is absent in many cases in which rupture occurs during a protracted labour, because rupture is so often the result of violence when the patient is under the influence of the anaesthesia. If it is experienced the laceration is extensive, and child, in whole or in part, has escaped into the peritoneal cavity."
' It has further been mentioned at page 858 that "as a matter of fact in practice many cases are not recognized nor recognizable before delivery, because the rupture is only partial to the delivery and it is completed or actually occurs during the delivery. Collapse with or without free haemorrhage occasionally arises suspicion of rupture, and the hand introduced, possibly to remove the placenta, discovers a rupture. In point of fact, in a fair number of cases, rupture is not recognized until abnormal symptoms develop in the puerperium, or (in fatal cases) a postmortem examination is made. A very large proportion of the deaths, written in death certificates as due to "shock", are almost certainly due to rupture of the uterus. Sheehan, for example, records twenty ruptures (most of them undiagnosed) in 147 necropsies performed on obstetric patients dying of shock. I agree with Simons when he states that the lower uterine segment should be explored in every case of shock when the diagnosis is in doubt or when the patient does not immediately respond to blood transfusion and there is another reason why this examination should be made.
Inversion of uterus may cause profound postpartum shock; and in its partial form the inversion may defy diagnosis by any other means. At page 859 it has been stated that putting aside, the responsibility in the great majority of cases rests with the inexperienced practitioner who permits complicated cases of labour to drift into danger, and often in surroundings quite unsuitable for any obstetric operation No patient should ever be permitted to drift on in labour until rupture threatens-means should be taken to rectify the abnormality by vaginal manipulations; or, if that is impossible or :unwise, to effect the delivery by caesarean section". Under the heading " Treatment following Rupture" delivery of child would show that even in case of rupture a child could have delivered alive and it is not that always in case of rupture of uterus child would not be delivered alive .
' The author of the book has mentioned maternal mortality rates under chapter 35 of his book which would also support the statements that in case of rupture of the uterus it is not always necessary that child could not be delivered alive.
25. The statement of the appellant/defendant No,4 that in case of rupture the child could not have been born alive stands falsified by the author of the book mentioned above.
26. In an article published in Medical Journal, March, 1997 Volume 13(2) in respect of "Rupture of Pregnant Uterus" written by Muhammad Aslam, the relevant portion whereof reads: "The known predisposing facts for rupture of intact pregnant uterus are grand multiparity, prolonged obstructed labour, use of oxytocin, postabortal or postpartum sepsis, instrumental delivery and manual removal of placenta". In the said article it has been mentioned that 45.31% rupture of uterus took place in the cases he studied spontaneously. He has further I mentioned that 31.2% was found to be one of the major risk factor who I received oxytocin during labour. He has mentioned that foetal outcome as shown by him in table-5, whereby only 19 babies were born alive in the cases studied. In table-2 of the said article in case of prolonged labour, risk factor of rupture of uterus was found to be 48.44% when 34 cases were studied and in case of use of oxytocin during labour out of 20 cases studied, 31.25% were found where rupture of uterus had taken place. The writer of the article has also made reference to number of other articles in support of his article.
27. In another article published in the Medical Journal by Talat J.Hasan, Razia Korejo and Sadiqa N.
Jarfri, the Gynaecologists of the Jinnah Postgraduate Medical Centre, Karachi, it has been mentioned that main cause of rupture was obstructed labour when maternal mortality rate was found to be 3.9% and foetal mortality rate was found to be 88% on the study of 48,519 cases of deliveries conducted in Jinnah Postgraduate Medical Centre, Karachi over the period of seven years.
28. In an article by Nusrat H. Khan of Dow Medical College, Civil Hospital, Karachi published in a Journal by Pakistan Medical Association, volume 43, No,9, September, 1993, the author has mentioned one of the major causes of rupture of uterus was prolonged first stage of labour when five babies were born alive out of which one was early neonatal death due to congenital anomaly.
Overall foetal mortality rate was found to be 78% in his study. In a Book Williams Obstetrics 20th Edition at page 777 under heading "Prognosis" it has been mentioned "with rupture and expulsion of the foetus into peritoneal cavity, the chances for intact foetal survival are dismal, and mortality rates reported in various studies range from 50 to 75%. If foetus is alive at the time of the rupture, the only chance of continued survival is afforded by immediate delivery, most often by laparotomy.
29. The above statement made in the article would re-affirm the fact that it was not always necessary that in each case of rupture of uterus, the child would not be delivered alive. It is not necessary to say that the rupture had taken place in the Pakistan General Hospital, may have taken place in the Al-Rehman Hospital soon before the caesarean operation was performed.
30. Admittedly there is no death form certificate which was to be filled in by the doctor available in the hospital at the time of death as no doctor was left by the appellant Surgeon and the hospital, to manage the condition of their patient in Al-Rehman Hospital so also no death summary, which is normally prepared after each death of the patient, was prepared even the nurse did not prepare any such certificate or death summary of the patient. The case sheet, Exh.P/13-A, itself even produced at late stage would show that the patient was badly managed so also labour of the patient. It is true that there is nothing except the certificate Exh.P/8 of the doctor of Al-Rehman Hospital to suggest that death occurred due to rupture of uterus. However, if that certificate as my learned brother has not taken into consideration, there being no certificate of death or death summary having been prepared at the time of death stating the cause of death by the appellants, it cannot be said that testimony of the respondent/plaintiff was untrue/not correct. Be that as it may, there being lot of evidence even from the side of the respondent viz. Exh.P/13-A to show that the patient and delivery labour were badly managed by the Surgeon amounting to negligence and recklessness unbecoming of professional person and the labour pains were prolonged till 7-00 p.m. For more than nine hours and there was shifting of patient in such a miserable condition from one hospital to another hospital in Suzuki Van not even in ambulance considering that no document of ambulance was produced showing that it was registered with the Excise & Taxation Authority by the appellants when the registration 'book on record would show that it was a Suzuki Van which was registered with the department and not ambulance which fact would support the plea of the respondent/plaintiff, led to ultimate unfortunate death of patient i,e, one human life which could have been saved if timely decision would have been taken and the patient would have been properly managed and looked after before and after the caesarean operation. Of course the appellant lost nothing and the irreparable damage/loss was caused to the respondent/plaintiff and his children who have forever lost their beloved one in her youth of twenty-six years. Human life cannot be estimated in terms of money. Normally in such circumstances as the unfortunate death in this case occurred, it was the duty of the hospital authorities to have got conducted the post-mortem examination to arrive at correct conclusion to ascertain the cause of death. There is nothing on record to suggest that the respondent/plaintiff objected to the conducting of postmortem examination upon the deceased or dead body was taken away forcibly without consent of the appellants nor any document even produced which could show that the dead body of deceased was handed over to the respondent/plaintiff without carrying out post-mortem at their risk and cost and for that technical fault of the appellants/defendants they cannot be allowed to go scot-free
31. There is no cavil with the proposition that (i) in case of suit for damages, cause for wrong complained of be immediate and direct which could lead, to the ultimate result/consequence of the injury, (ii) it is expected of a professional man like a doctor that he should own a fair, reasonable and competent degree of skill, (iii) that medical practitioner should not be held to be negligent simply because of inherent risk of operation if he has acted in accordance with the practice accepted at the relevant time as proper by the responsible body of medical opinion whereby it could be seen that he or she acted with utmost care and skill he or she was required to observe, (iv) that he or she could only be held guilty of negligence if it was shown that if he or she is found lacking standard of reasonable skilled medical person, and (v) the true test for establishing negligence in diagnosis or treatment on the part of a doctor would be, whether he/she has not acted/behaved as a doctor of ordinary skill would have been acted/behaved in the performance of his/her job the result would have been otherwise. However in the instant case evidence has been brought on record by the respondent/plaintiff and also from the evidence of the appellant/defendant to show that Mrs. Adeeba Aman was admitted in the hospital in good condition having no complication as a delivery case and because of mismanagement, negligence and recklessness prior and after the delivery by way of caesarean section, death of wife of respondent/plaintiff occurred which was the direct cause of the appellant's mismanagement and negligence having not attended/managed and taken care of the patient as a professional skilled medical person showing even not reasonable skill in managing ordinary case of delivery. In the circumstances as discussed above the cause of death was immediate and direct result of negligence of the appellants who having failed to exercise normal standard of a reasonable skilled medibal person. It cannot be held by this Court that even a doctor or professional person who has not acted in a way in which a professional person of ordinary skill would have acted cannot be held liable for damages- only because he or she being a professional person therefore be deemed to have acted/conducted managed with reasonable skill. A blank cheque cannot be given to a professional person/doctor for such a blatant negligence, carelessness, mismanagement and misconduct having stated falsely by even substituting staff Doli to nurse Mrs. Lazarus and having brought on record evidence which falsified her entire testimony. In the instant case, it has been proved that from the very beginning since admission of the patient neither the appellant surgeon nor the hospital authorities managed and looked after the patient as in the ordinary course a professional and reasonable skilled medical person could have handled, taken care of or performed the caesarean section after such prolonged protracted labour after having been given syntocinon without keeping the proper timely record of the case sheet. It cannot be expected from the appellant surgeon being a professional surgeon that after administering syntocinon she would prolong and protract the labour pains of the patient for nine hours without apprehending/foreseeing the other risk factors in prolonging and protracting the labour pains of young lady which could lead to the fatal consequences as stated above from the medical books.
No professional medical person could say that after performance of caesarean operation the patient would be left without leaving authorized medical person and trained nurse to manage the post-operative patient in accordance with the settled practice and management of such delivery cases. I am surprised to note that the professional man could keep the case sheet Ex.P/13-A in such a state which did not state timely condition/progress of the patient and administering of medicines from 10.40 a.m. Till her death. It is also surprising that a trained nurse could not telephone the appellant surgeon about the seriousness of the patient because the office of Al- Rehman hospital was closed while at 5.30 a.m. She was able to inform when everything was over, that also by staff Doli, when staff Doli was not examined and she was substituted by Mrs. Lazarus. I must say with full force with few exceptions that in our society the patients are not being treated as human being in the hospitals by the doctors and are little cared of or managed reasonably, properly on proper time with proper medicine and taken care of after post operation.
32. I have gone through the book "professional Negligence and Liability Reports" written by Andrew Tettenborn published by Sweet & Maxwell, wherein besides the case of medical professional doctors, cases of other professionals have been reported wherein the said professional persons were sued for damages for their negligence. None of the case reported has given a certificate that even in a case where a professional person has not acted like a professional person of ordinary skill would be treated as having performed each and every case like professional person of ordinary skill and would be exempted from being sued for damages. In case of Galloway (or Hunter) v.
Hanley decided on February 4, 1955 by the Lord President, Lord Carmont, Lord Russell, Lord Sorn and Lord Patrick, wherein case of administering penicillin injection by doctor when needle broke, which caused injury was considered and certain principles were laid down where it was held that liability would follow negligence and negligence would consist in the failure to fulfil a duty of care, (ii)
Bolam v. Friern Hospital Management Committee, decided on February 26, 1957 wherein the medical person was sued for his failure to perform duty and care towards the patient and standard of care shown by a professional person shown to have fallen below the standard practice would amount to negligence and could be sued for the damages and (iii) Howarth v. Adey, of the Supreme Court of Victoria, Court of Appeal, in their judgment dated 9th February, 1996, at page 914, have dealt with a case with regard to medical negligence, duty of care, doctor's duty to advise and warn mother at birth. Though in the said case amendment was sought by the plaintiff in his petition which was dealt with by their Lordships but their Lordships observed that claim was made on the ground of breach of the doctor's duty who (i) failed to exercise any reasonable care and control in the confinement of the mother; (ii) failed to exercise reasonable care to preserve the health of the appellant during the confinement, (iii) knowing that the mother's pregnancy was "high risk" failed: (a) to ensure that the condition of the mother and the appellant was properly monitored during confinement; (b) to adequately carry out inspections and examinations of the mother during confinement and the time of birth; (c) to ascertain that the foetus was distressed and in difficulty prior to 7-20 p.m.; (d) to perform a "Caesarean section"; (e) to regulate or cease the administration of high doses of oxytocin without ensuring that the condition of the mother and the foetus was adequate to cope; (f) to attend or examine the mother at any time between 7.20 p.m. And the time of birth; (g) failing to inform or advise the plaintiff's mother that she required a "Caesarean section".
33. So far the case law cited by the learned counsel for the appellants (i) Haji Salman Ali & Co. v.
Province of Balochistan through Secretary Irrigation & Power (PLD 1994 Quetta 13). The facts of this case are quite different and distinguishable to the facts of the instant case as the cited case was in respect of claim of damages made on the basis of contract by the appellant/plaintiff with the Irrigation & Power Department for the construction of Machinery Yard; (ii) Kayumarz v. M/s. Mohammadi Tramway Company (PLD 1968 Karachi 376). It is the case of duty of tramcar and motorcar drivers and negligence on their part. In this case plaintiff filed suit against the respondent company for damages claiming Rs,70,000 as damages for personal injury sustained by him in an accident due to collusion between tramcar and autotaxi owned by respondents Nos.2 & 3. The High Court in its original jurisdiction granted compensation of Rs,53,151.00 by way of special damages and Rs,16,849.00 on account of general damages total amounting to Rs,70,000/- against the respondent company. This case pertains to the period dated 16-7-1962, Garden Road, Karachi. The facts of the cited cases are quite different and distinguishable to the facts of the instant case, therefore are of no assistance to the case of the appellants. Learned counsel for the respondent/plaintiff has placed reliance upon (i) Government of the Punjab through Secretary Health v. Salamat Ali Khan (PLD 1991 SC 699). In this case the respondent/plaintiff had sued the appellant/defendant for damages on account of death of ailing child in the hospital on the ground of negligence of medical staff and functionaries. The suit was decreed against the appellant/defendant holding that decree in favour of the respondent/plaintiff but this Court extended benefit of doubt in favour of the hospital administration but maintained the amount of damages to be paid to the respondent/plaintiff; (ii) Dr. Laxman Balkrishna, Joshi v. Dr. Trimbak Bapu Godbole and another (AIR 1969 SC 128). In this case their Lordships upheld the judgment of the High Court in granting the damages against the surgeon on account of death of patient who died due to shock resulting from reduction of the fracture attempted by Dr. Laxman Balkrishna Joshi without taking the elementary caution of giving anaesthesia to the patient and that he was held guilty of negligence and wrongful acts towards the patient, therefore liable for damages; (iii)
Achutrao Haribhau Khodwa and others v. State of Maharashtra and others (1996 PSC 1200). In this case the plaintiff sued for damages on account of death of his wife while undergoing sterilization operation in the Civil Hospital Aurangabad, when the trial court granted decree of Rs,36,000.00, whereas the High Court reversed the decree while the Supreme Court of India restored the decree passed by the Trial Court wherein their Lordships observed in para-18 as under:- "There is no escape from the conclusion that the negligence in leaving the mop in Chandrikabai's abdomen during the first operation led, ultimately, to her death. But for the fact that a mop was left inside the body, the second operation on 19th July, 1963 would not have taken place. It is the leaving of that mop inside the abdomen of Chandrikabai which led to the development of peritonitis leading to her death. She was admitted to the hospital on 10th July, 1963 for a simple case of delivery followed by a sterilization operation. But even after a normal delivery she did not come out of the hospital alive. Under these circumstances, and in the absence of any valid explanation by the respondents which would satisfy the Court that there was no negligence on their part, we have no hesitation in holding that Chandrikabai died due to negligence of respondents Nos.2 & 3."
(iv) Lindsey County Council v. Marshall (1936 AELR (Vol.2) 1076). In this case the appellants/defendants admitted the respondent/plaintiff as patient to their maternity home for the purpose of her confinement without informing the latter that there had been a recent case of puerperal fever in the home where the respondent/plaintiff contracted puerperal fever and was for some time seriously ill. In an action by the respondent/plaintiff to recover damages from the appellants/defendants for injury caused by the negligence of their professional staff, House of Lords held that the appellants/defendants or their staff knew or ought to have known that in admitting the respondent to the home they were exposing her to the danger of infection, and the appellants/defendants were consequently negligent in not duly warning her of the existence of that risk, and in the case in 1936, the respondents/plaintiffs were awarded 750 pounds as damages from the appellant/department for the injury sustained by her; (v) Gold and others v. Essex County Council (1942 AAER (Vol.1) 326). The facts of this case are quite different and distinguishable as it was held that Radiographer (technician) an employee of the County hospital being nurse at operations ceased to be for the time being servant of the defendant inasmuch as they took orders during that period from his operating surgeon alone not from the hospital authorities, therefore hospital could not be held liable for Mead's professional negligence but the author of the report has taken exception to the above said dicta of the Court expressing dissatisfaction with the position taken by the Court; (vi) Colins v. Hertfordshire County Council and another (1947 AELR (Vol.1) 633). In this case the patient in the county hospital was killed by injection of cocaine which was given by the operating surgeon in the mistaken belief that it was procaine. The operating surgeon gave injection without checking that it was what he had ordered. In an action by the patient's widow against the county council and operating surgeon, county council was held to be negligent and that the operating surgeon and house surgeon have failed to exercise reasonable skill and care, thereby county council and surgeon were to contribute in equal proportions to the amount of damages recoverable by the plaintiff; (vii) Cassidy v. Ministry of Health (1951 AELR (Vol.1)
574). In this case the plaintiff sued the defendants Ministry of Health and house surgeon for damages for their negligence whereby he was operated upon thereby has plaintiffs four fingers of hand became stiff and hand was practically useless. The Court on assessment of the evidence found negligence on the part of the persons in whose care plaintiff was which had not been rebutted and the house surgeon was liable to the plaintiff so also the nursing staff. In the conclusion para. It has been observed by their Lordships that: "This conclusion has an important bearing on the question of evidence. If the plaintiff had to prove that some particular doctor or nurse was negligent he would not be able to do it, but he was not put to that impossible task. He says: "I went into the hospital to be cured of two stiff fingers. I have come out, with four stiff fingers, and my hand is useless. That should not have happened if due care had been used. Explain it, if you can". I am quite clearly of opinion that that raises a prima facie case against the hospital authorities. They have nowhere explained how it could happen without negligence."
' And (viii) Jones v. Manchester Corporation and others (1952 AELR (Vol.2) 125). In this case the patient was brought into hospital suffering from burns to the face. The doctor to ease administered the patient gas to give injection of pentothal. The second defendant gave the injection, but owing to the fact that the patient was already partly anaesthetized and to the amount and the method of administration of drug, the patient died. In an action by the widow of the deceased patient for damages for negligence against the second and third defendants, it was held by their Lordships that the hospital board had been negligent in leaving the administration of a dangerous anaesthetic to an inexperienced doctor without adequate supervision, and their employee, the senior surgeon, had also been negligent. The second defendant had been guilty of a substantial degree of negligence and so was not entitled to contribution amounting to a complete indemnity from the board and an amount of 1,438 pounds was awarded as damaged to the widow of the petitioner.
34. In the instant case it cannot be said that the appellant being a professional person was unaware of the consequential risk factors which were probable in the case considering the above admitted evidence and the procedure of practice with regard to management stated in the medical books. It is not the question of sometime going wrong all of a sudden. The respondent's wife was under the antenatal care of the appellant and was admitted in the hospital at the instance of the said appellant hospital and was stated to be free from any complications whose labour pains were prolonged for more than seven hours considering that she had been administered earlier syntocinon, the drug given for increasing the labour pains and not attending punctually, P regularly, hourly the patient either by the doctor or by trained nurse before and after the delivery. Keeping of no such up to date record, would it not amount to inviting risk to the life of the patient. Such kind of management and treatment cannot be expected from a professional person and the appellant hospital which is to be maintained properly in order to save the human life and not to kill the patient for want of certain most essential equipments needed at the emergency stage. Perusal of the case law cited by my learned brother author Judge has nowhere said that a blank cheque is to be given to the doctor to act according to his own whims ignoring the norms of ordinary professional skilled person. In case such licence is given to the doctor, no doctor in this country would take care of the patient as he should in the ordinary course of business is expected to do and perform. I must say that the men may lie but the circumstances cannot.
Mere fact that the appellants/defendants have denied to he negligent therefore they cannot be held liable for the damages could not be held valid ground for professional person considering the evidence of the respondent/plaintiff which proved that P there was a negligence on the part of the appellants/defendants and in P mismanaging the delivery case of the deceased Mrs. Adeeba Aman before and after the caesarean section was unbecoming of professional person like appellant Dr. Siddiqa Haq.
35. It is admitted position that the death of Mrs. Adeeba Aman was caused after caesarean operation, even if we assume that death was not the result of rupture of uterus but because of postpartum haemorrhage and negligence on the part of the appellants who having not acted/conducted as a professional persons of ordinary skill, would be liable to damages/compensation under the law and in case there would have been a qualified doctor left behind by the appellants postpartum haemorrhage or bleeding due to rupture could have been recompensated/controlled by blood transfusion but being a professional person, she did not leave doctor behind to take care of the patient in the case of fatal eventuality which happened in the instant case.
36. So far the grant of damages for the negligence, carelessness, mismanagement before and after delivery, the same could be even inferred or presumed in certain cases. It could be presumed particularly in case involving injury besides nature and character of acts and omissions themselves would show the professional lapse on the part of the professional person. So far the remoteness of damage, the term remoteness has more than one meanings referring to the issue of causation and the scope of the protection afforded by the law. The first question is whether the defendants caused the particular damage to he plaintiff; the second which on a strict analysis would arise if the first has been answered in the plaintiff's favour, and whether the law protects the defendant from particular damages he has caused. In the instant case admittedly the respondent, plaintiff's wife died after the Caesarean operation, the cause of which was in fact mismanagement; negligence, recklessness before and after delivery by way of caesarean section which resulted the death of the respondent/plaintiff's wife who was admittedly in good condition of health. In the instant case, evidence brought on record has proved beyond doubt that the appellant/defendant has not managed/performed and taken care of the patient not as a reasonable and professional person. I cannot also ignore the principle laid down by maxim Res ipsa loquitur which meant that situation would speak for itself. Reference may be made to Dr. Atta Muhammad Khanzada v.
Muhammad Sherin (1996 CLC 1440), wherein the doctor performed Intra-Ocular Lens operation of the respondent Muhammad Sherin when lens was implanted upside down and second operation was carried out and no post-operational care was provided with the result the patient lost vision of operated eye and therefore the patient was held entitled to adequate compensation, though the doctor has taken the plea that operation was performed with the consent of the patient and that he was highly qualified and eminent Eye Specialist and had carried out innumerable operations, therefore was not liable to pay any compensation to the patient. The High Court awarded Rs,50,000 as compensation to the respondent/plaintiff. (ii) Chin Keow v. Government of Malaysia and another (1967, WLR 813, (P.C.), wherein their Lordships of the Privy Council held that the medical practitioner could be guilty of negligence who if failed to enquire into the history before giving Penicillin injection which amounted to failure to exercise ordinary professional skill of practitioner and such finding of lower Court based on evidence, the Appellate Court could not substitute the findings of Judge who has seen and heard the witnesses and had impressed upon the scope and nature of evidence in a way denied to any appellate Tribunal. (IV) Roe v. Minister of Health and Another, Wooley v. Same (1954 2 Q.B 66), wherein their lordships held that the hospital could be vicariously liable for the act of anaesthetist and also held that the anaesthetist was the servant/agent of the hospital and the hospital was liable for his acts on the principle of res ipsa loquitur (V) Government of the Punjab through Secretary Health Department, Lahore v. Salamat Ali Khan (PLD 1991 SC 699), wherein this Court held that the functionaries of the hospital appeared to have failed to save the life of the ailing child and a strong possibility could not be excluded that the death was due to the gross negligence of the hospital functionaries, namely, the doctors who purported to have dealt with the case.
37. The evidence discussed above has proved that the appellants/defendants were negligent, reckless and had mismanaged the case of their patient. Uterus of the patient was ruptured in the Pakistan General Hospital or in the Al-Rehman Hospital because of the above said acts of the appellants defendants, however, there being no post-mortem examination to arrive at certain conclusion about the cause of death, the evidence with regard to rupture of uterus even if considered to be insufficient, it stood proved in view of the evidence and the reasoning S and the principles stated in the medical books and research S papers/articles, besides the stated acts of negligence, carelessness and recklessness on the part of the appellants/defendants which could not have been expected from a professional person of ordinary skill, the appellants/defendants are held to be liable to damages/compensation on the said count under the law considering also the concurrent findings of the learned Division Bench of the High Court and the Court below, which finding could not have been reversed as no error or misreading could be pointed out by the learned counsel for the appellants/defendants as there was no ground for the reversal considering that mere fact a different view was possible on reappraisal of evidence would be no ground to disturb the finding of two Courts and further that considering the said gross negligence cannot be expected from a professional person like appellants whereby one precious life of a young lady of twenty-six years was lost which cannot be estimated in terms of money, therefore whatever compensation in money terms is awarded the same would not re-compensate the loss caused to the family of the deceased, therefore the damages/compensation awarded by the learned Division Bench would not be unreasonable or exorbitant, consequently the judgment and decree passed by learned Division Bench of the High Court is maintained and the appeals are dismissed.