1. ' IRFAN SAADAT KHAN, J.---Plaintiffs have filed this suit for recovery as compensation and damages of Rs,10,365,000 under section 1 of Fatal Accident Act, 1855.
2. ' Briefly stated the facts of the case are that plaintiffs are the minor children of the deceased Mst.
3. Nazneen, who, as per the plaintiffs, died on 19-12-2000 due to the negligence and wrongful acts of defendants. It is alleged that the deceased approached the defendant No,1 at her clinic situated at Hussain D'Silva Town, North Nazimabad, Karachi under the name and style of Frontier Clinic, who after examining her, found that her gall-bladder is not functioning properly and advised her to immediately report to the hospital owned by her situated in Safoora Goth namely Rehman Memorial Hospital for immediate surgery of the gall bladder. On such advice, deceased reached the said hospital and was admitted therein on 6-10-2000, where her tests were carried out and thereafter the defendant No,1 advised her to immediately get herself operated otherwise her gall- bladder will be perforated. It is alleged that at the time of operation the deceased was suffering from jaundice and in such case operations are not conducted but still the defendant No.2 operated her on the advice of defendant No.1. It is alleged that due to negligence and mishandling during the operation a fistulae developed due to which thereafter death of Mst. Nazneen occurred. A complaint in this regard was also made to the Ministry of Health, who found the defendants Nos. 1 and 2 negligent and thereafter the present suit has been filed with the following prayers:--- "It is therefore, prayed on behalf of the plaintiffs above named that this Honourable Court may be pleased to pass a judgment and decree jointly and severally against the defendants Nos. 1 and 2 for ,a sum of Rupees Ten Million along with expenses of operation amounting to Rs,3,65,000 together with interest/markup @ 18% per annum from the date of this suit till its reliazation and the costs of the suit.
4. ' Any other relief or additional relief as deem fit in the circumstances of the case."
5. ' Defendant No,1 had already been debarred from filing the written statement vide Assistant Registrar's order dated 6-3-2003, while the defendant No, 2 had filed his written statement denying the allegations of the plaintiffs.
6. ' On the pleading of the parties, following consent issues were framed on 1-9-2003:--
(1) Whether the plaintiffs have no cause of action to file instant suit against defendant No,2?
(2) Whether the suit is barred by law?
(3) Whether the suit is bad for non-joinder of necessary parties?
(4) Whether the defendants have committed acts of negligence and carelessness in performance of operation which led to the death of mother of the plaintiffs?
(5) Whether the plaintiffs are entitled to receive a sum of Rs,10,365,000 as compensation and damages from the defendants jointly and severally?
(6) Whether the plaintiffs are entitled to take action against defendant No,2 of the given voluntarily consent by filling the form prior to operation which includes all risk and consequences?
(7) What should the decree be?
7. ' On 14-1-2010 both the counsel agreed to file their written arguments within a period of two weeks.
8. Today, counsel for the plaintiff is in attendance, however, the counsel for defendant No,2 is not present but both the learned counsel have filed their written arguments which are available on the record.
9. ' Mr. Shahid Qadeer, counsel for the plaintiff, in his written arguments has submitted that plaintiffs are entitled for recovery of above amount as the deceased had expired due to sheer negligence, mishandling, mistreatment and mismanagement by defendants Nos. 1 and 2. As per the learned counsel, the operation was conducted by defendant No, 2 in a defective and negligent manner due to which a fistula (opening) developed with the result that bile drained out from the fistula resulting in the death of deceased. As per the learned counsel, defendant No,1 is also fully responsible for the death of deceased as no post and 'Pre operation care was given to the deceased. According to the learned counsel deceased was suffering from jaundice at the time of operation and her operation should not have been conducted but the defendant Nos.1 and 2 due to their lust of money did not wait till such time the jaundice of the deceased is cured and in a very hurried manner operated the deceased without even giving her general anesthesia. According to learned counsel an application was given to government of Sindh Ministry of Health who formulated a Board of enquiry and the said Board found the defendants grossly negligent and responsible for the death of the deceased.
10. According to the learned counsel as the deceased had expired due to the negligence on the part of defendants Nos.1 and 2 the above claimed amount may be allowed as compensation against the said two persons. In support of his contentions learned counsel has relied upon the cases of 1999 YLR 904, 2003 YLR 3099, 2003 SCMR 1701 and 2001 SCMR 1700.
11. ' The defendant No, 2 in his written statement as well as in written arguments while denying the claim of the plaintiff had alleged that the person responsible for the death of Mst. Nazneen was in fact defendant No,1 and Dr. Irfan Daudi who carried out the subsequent operations. According to the defendant No,2 he performed the operation on 6-10-2000 whereas Mst. Nazneen expired on 19- 12-2000 i,e, after a period of two months from the date of the said operation. As per the written statement of defendant No,2 it was Dr. Irfan Daudi who had conducted two operations in Dr.Zia-ud- Din Hospital after which the condition of the deceased became more serious and she finally expired. As per the defendant No,2, Dr. Daudi is one of the culprits in causing death of the deceased, who was not even made a party in this case. As per the defendant No,2 he was not responsible for the death of deceased as it was the responsibility of the defendant No,1 to have taken care of the deceased after the said operation as it was the hospital of defendant No, 1 where the deceased was admitted and he was only a surgeon who conducted/ performed the said operation. As per the defendant No,2 the patient was in proper condition of health after the operation conducted by him and no such fistula occurred due to the operation as no fluid was being discharged from the bile duct. In the end he prayed that he has wrongly been implicated in this case as no negligence was caused by him and the deceased did not die due to his negligence and the present suit may be dismissed.
12. ' I have considered the written arguments, perused the record and have also gone through the evidence file. I will deal with the matter issue wise.--- ISSUE NO.1.--Whether the plaintiffs have no cause of action to file instant suit against defendant No,2?
13. ' It is admitted position' that the deceased was operated upon by the defendant No,2 at the hospital owned by the defendant No,
1. The allegation is that the defendant No,2 was negligent in performing his professional duties towards the deceased. If the operation performed by the defendant No,2. Was successful, there was no point in filing the present suit. According to the report of the Board of Enquiry constituted by the Health Department, Government of Sindh, the defendant No,2 himself suggested to the husband of the deceased after the operation conducted by him that the patient needs re-operation. This clearly shows that the first operation carried out by the defendant No,2 was not proper. There is also contradiction in the statement of the defendant No,2 made before the Board, which is as under:- "Dr. Bader said during his verbal cross-examination that he told the attendants of the patient, that the patient needs re-operation and that he will do this operation at Baqai but they refused.
14. However, there is no mention of all this in the case file. On the contrary the notes of Dr. Bader gives the impression that there is no grave problem with the patient, just minor problems." (Emphasis supplied).
15. ' It is also evident that the defendant No,2 was briefed about this sensitive operation only one hour prior to the said operation but he made no attempt to go through the patient's record/file and in a post haste manner carried out the said operation, which has elaborately been discussed in the later part of this judgment.
16. ' Thus, it is clear that there was a professional negligence on the part of the defendant No,2. In view of the above, the plaintiffs do have a cause of action against the defendant No,2. Issue No,2 is therefore answered accordingly.
17. ISSUE NO.2.--Whether the suit is barred by law?
18. ' In the instant case the deceased was admitted in defendant No, 1 hospital and undergone an operation, conducted by defendant No,2, by signing memo. Of consent and due to carelessness/ negligence a fistulae occurred due to which, as per the record, the deceased died on 19-12-2000.
19. The present suit has been filed on 23-9-2002 i,e, within two years after the death. Article 36 of the Limitation Act provides two years limitation period for compensation for any malfeasance, misfeasance or non-feasance independent of a contract, whereas Article 115 of the Limitation Act provides a period of limitation for compensation for the breach of contract expressly or impliedly in writing as three years, when the contract is broken. Discharging the duty by a doctor in an improper manner constitutes an act of misfeasance, if there is no contract between the parties the period of limitation will be two years from the date of act of misfeasance. However, if there is a contract between the parties, then Article 115 will be attracted providing three years of limitation.
20. The plaintiff has filed the suit on 23-9-2002 i,e, within two years after the death and as such suit, in my view, is in time. Reference in this regard may be made to the case of Sajid Ahmed Ansari v.
21. Agha Khan University Hospital reported in PLD 2008 Karachi 80. The issue is, therefore, answered in negative.
22. ' ISSUE NO.3.--Whether the suit is bad for non-joinder of necessary parties?
23. ' It has been alleged by the defendant No, 2 that due to the incorrect operations conducted by Dr. Irfan Daudi he should have been made a party to this case whereas on perusal of the plaint it would reveal that not a single blame has been made so far as the role of Dr. Daudi is concerned.
24. Rather it was Dr. Irfan Daudi who vide his report dated 27-10-2000 has categorically stated that due to the incorrect operation conducted by defendant No,2 a fistulae occurred moreover, as per enquiry report regarding complaint made against defendant Nos.1 and 2 to the Government of Sindh, Health Department Dr. Irfan Daudi had not been found to be negligent of his duty and involved in the death of the deceased. Though Dr. Daudi was examined by the said enquiry committee and his statement was also obtained but he was not found to be either negligent of his duty or involved in the death of the deceased. Issue No,3, is, therefore, answered in the negative.
25. ISSUE NO.4.--Whether the defendants have committed acts of negligence and carelessness in performance of operation which led to the death of mother of the plaintiffs?
26. ' Examination of case reveals that deceased's husband took her to the clinic of Dr. Saeeda who informed the husband of the deceased that her gallbladder is in bad condition and if timely operation is not carried out there is every likelihood of its perforation. Not only Dr. Saeeda informed the husband of plaintiff about her health condition but also directed him to get the deceased admitted in the hospital run by her fully knowing the fact that her hospital was not having proper operation theatre, pre and post operation facilities, competent and trained staff to look after such type of patients. It is observed that no proper registers of admissions and discharge of the patients are maintained at the said hospital. The Board constituted by the Department of Health, has stated in its report that the patients' record, which is available at the said hospital, was also found to be deficient. It is also seen from the record that before the operation the deceased was found to be suffering from jaundice and in spite of knowing this fact defendant No,1, just to mint money, got the deceased operated at her own hospital and did not even wait till such time the jaundice was cured. Although the defendant No,2 in his written statement has denied that the deceased was suffering from jaundice but the record proves that the deceased, in fact, was suffering from jaundice and even then the defendant No,2 carried out the said operation. It is also seen that no general anesthesia was given prior to the operation and only spinal anesthesia was given to the deceased which also is a fatal negligence committed by the defendants. The report of the Board states that Defendant No,2, in his verbal cross-examination, accepted that "the ward management and nursing care at Rehman Hospital is not up to the mark" but still carried out the operation which, ultimately, caused the death of the deceased. Dr. Saeeda made a categorical statement to the husband of the deceased that if the deceased is not admitted in her hospital, the deceased will expire. After admitting the deceased some tests prior to the operation were conducted at the said hospital thereafter defendant No,1 contacted the defendant No,2 for conducting the operation. It is quite evident from the record that defendant No,2 was briefed about the said sensitive operation only one hour prior to the said operation. It appears that defendant No,2 also conducted and performed the operation in a post haste manner and due to sheer negligence on his part a fistulae developed which is quite evident from the record. It is proved from the record that deceased was admitted in the hospital in the afternoon of 6-10-2000 and was operated in the evening on the same day. After the said operation when the condition of deceased worsened, the matter was brought to the knowledge of the defendants who on one pretext or the other described the condition of the deceased to be normal and tried to pacify the husband of the deceased by saying that the patient was normal and it was usual that after operation bile drains out and the same will either disappear automatically by itself or would heal in due course of time. The defendants did not even care to conduct some more tests and kept on falsely informing the husband of the deceased that there was no need to worry and they had taken ample care and the bile leaking out of the fistulae, which was developed due to the negligence of defendant No,2, would stop. The defendant No,2 tried to hush up the things by saying that there was nothing wrong with the patient but, as. Per his statement before the Board, he also advised the husband of the deceased that she needs re- operation which he (the defendant No,2) would carry out at the Baqai Hospital. This clearly shows that there was something wrong with the patient and the defendant No,2 was fully aware about the same. It is averred by husband of the deceased that in the meantime he consulted some other doctor who informed him that We operation conducted by defendant No,2 was incorrect and deficient and due to the negligence of defendant No,2 a fistulae has developed and the life of the deceased was in danger. The tests taken after the operation also revealed abnormality of bilirubin, alkaline and phosphate presence in the Ascetics and ultra sound of whole abdomen showed enlargement of liver and spleen but apparently no heed was paid either by the defendant No,1 or defendant No,2 to the same. Though Dr. Daudi tried to reconstruct the said fistulae but, as per the evidence, it was too late in the day. For the ease of reference extracts from the report of the Board of Enquiry are reproduced herein below:
(1) Dr. Baderul Islam Zakai.
27. ' There is evidence to suggest that Dr. Bader has mismanaged the patient. Although he is a senior surgeon, he has failed to recognize the injury to the Common Bile duct in spite of different pointers like shoulder pain, presence of free fluid in the abdomen, presence of bile salts and pigments in the urine, LFT report, etc. Besides, his mismanagement is obvious from his treatment of the patient i,e, numerous drugs, daily change of drugs esp. Antibiotics, without any logic.
28. ' According to Dr. Bader's own statement the patient was operated on 6th October 2000 but in the case file he writes 7th October as the operation day, 8th October as first post operation day and so on. Besides in his statement he writes that the patient went LAMA on 16th October whereas in the case file follow upon notes are present in his own hand writing On the 17th October. Is this forgetfulness, negligence or the fact that the notes were written at one go and added to the file later on?
29. ' Prior to operation Dr. Bader saw the patient only one hour ago, diagnosed it as emphysema and suggested conservative treatment, but according to him on the demand of patient and Dr. Saeeda he operated. Being a senior surgeon he should rely on his own judgment and not dictated by any body. Does he usually operate on such a short notice and without proper work up of the patients?
30. Further in his verbal cross-examination he says that the ward management and nursing care at Rehman Hospital is not upto the mark, then why operate at such a place and compromise patients safety?
31. ' Dr. Bader said during his verbal cross-examination that he told the attendants of the patient, that the patient needs re-operation and that he will do this operation at Baqai but they refused.
32. However, there 0 no mention of all this in the case file. On the contrary the notesof Dr. Bader gives the impression that there is no grave problem with the patient, just minor problems.
(2) Rehman Memorial Hospital.
33. ' There is mismanagement and negligence of the patients at Rehman Memorial Hospital, as is evident from the available records. There is no admission register or proper records. The only record of the patients presented is a register (Encl.X) which is at best an operation register which is grossly deficient in details besides being erroneous. It describes the operation performed under Spinal Anesthesia. It also describes the patient as LAMA on 16th October although the case file proves that the patient was very much in hospital on the 17th October. It also appears that some of the entries in this register were made later i,e, probably when the enquiry started. Besides, the surgeon operating her has described the ward facilities as unsatisfactory and the nursing staff not 'qualified.
(3) Dr. Saeeda Anwar ' Being the owner and the administrator of Rehman Memorial Hospital, Dr. Saeeda is responsible for the wrong doings (including record keeping) and mismanagement at her hospital. Her role is not above board, as the patient attended her clinic in North Nazimabad and then landed in her hospital at Gulistan-e-Jauhar, right across the town. The patients' attendants say that they were cornered into the decision of operation by her statement that the gall-bladder will perforate if no operation was performed.
34. ' She verbally told us that the patient was LAMA on 16th October-but in the statement wrote 11th October though the patient was very much in the hospital on the 17th October. The patients' attendants, on the other hand, say that the patient was not LAMA but taken by Dr.Saeeda to Abbasi Shaheed Hospital on 17th October (late night) and got admitted (dumped) there. There appears to be some truth in the patient attendants' version as the Abbasi Hospital record also shows admission on 18th (early morning).
35. ' Dr. Saeeda is a Government Servant working as Senior Medical Officer at Govt. Dispensary Garibabad, Liquatabad. How come she is running a clinic in the morning (10 am- I pm) and also a hospital (Rehman Memorial) as an Administrator?
36. ' It is also worth mentioning that no appeal was filed either by defendant No,1 or the defendant No, 2 against the report given by the Board of Enquiry, which amply proves that same had remained uncontroverted.
37. The husband of the deceased tried his level best to persuade the defendants to take extra care of his wife but on each occasion they kept on putting one excuse after the other. However, when defendant No,1 found that the situation is getting out of control and the health condition of the deceased is deteriorating day by day, she took the deceased to Abbasi Shaheed Hospital in her own car and got her admitted there. Even the defendant No, 2, seeing the condition of the deceased after the operation, had advised her to go to Baqai Hospital for ICU treatment as he was working there as a surgeon which amply proves that he was not satisfied with the health condition of the patient and the medical atmosphere at the Rehman Hospital. The record also shows that the defendant No,2 never visited the deceased after the operation and it was the husband of the deceased who at each occasion contacted the defendant No,2.
38. So far as the defendant No,1 is concerned, the Board constituted by the Government of Sindh, Health Department, in its enquiry report clearly held that she was quite negligent in performing her duties. While the deceased was in the hospital due to lack of care, the husband of the deceased took her back to his home and from there he took the deceased to Ziauddin Hospital, where Dr. Irfan Daudi attended her and advised MRI, X-Ray etc and after seeing the reports he, vide his report dated 27-10-2000, in categorical terms stated that due to the incorrect operation conducted by the defendant No,2 the deceased, who was alive at that time, had reached this stage. Dr. Daudi tried his level best to save the patient but, as she had already reached to a point of no return, could not survive. Report of Dr. Nasir, the other doctor consulted by the husband of the deceased, also reveals that there is a complete cut at the upper level of common bile duct. The enquiry report also describes that no pre-operation requirements were carried out by defendant No,l. The operation was performed in a mismanaged and careless manner without fulfilling the medical requirements which were to be adopted prior to these types of serious operations, as the report of the Board clearly states that no general anesthesia was given to the patient prior to this sensitive and serious operation. There are contradictions with regard to the date of operation and though medical tests/reports were taken in the hospital but these reports were never considered prior to the operation by the defendants. These reports clearly state that patient was suffering from jaundice.
39. There are a number of anomalies found by the said Board in its report that physician and another surgeon of the said Rehman Hospital, when they were consulted after the said operation, had also termed the condition of patient as poor. It appears that defendant No,1 just to get rid of deceased took her to Abbasi Shaheed Hospital and got her admitted there whereas during investigation conducted by the Board she stated that the patient left the hospital against medical advice
(LAMA) which was subsequently found to be contrary to the records.
40. The ERCP done at the Ziauddin Hospital clearly showed a bile duct injury at mid level. The patient was readmitted in Ziauddin Hospital when she claimed acute abdominal pain and was immediately .Operated by Dr. Irfan Daudi but as the patient was already in a critical condition she could not survive and finally expired due to low condition as a result of septicemia.
41. From the evidence available on record it is proved that defendants had been responsible for mismanaging the case of deceased though they both are senior doctors. They failed to perform their duty in a conscientious manner as the defendant No, 2 had admitted that he was briefed only one hour prior to the said operation and he performed the operation on the instructions of defendant No, 1 . In my opinion this is a very strange excuse on the part of defendant No,2 as he is a senior surgeon, he should have himself decided whether to operate the patient or not after going through the file and the patient's record/reports, which was not done by the defendant No,2. It also appears that the operation conducted by defendant No,2 was in a post haste manner. The defendant No,2 even has admitted that the place where the operation was conducted i,e, Rehman Memorial Hospital did not have proper 0.T., ICU, ward management, trained nursing staff and necessary equipments. Normally the burden is upon the party who alleges negligence, to prove the same by producing evidence in support of the allegations, but the said burden shifts on the other side if it is proved that required care was not taken while discharging professional duties and responsibility, which they were required to undertake. In cases of professional negligence the doctor/surgeons have to show that they have taken care and precautions not only to save the life of the patient they are dealing with but there was no negligence on their part. The Board in its report has categorically observed that defendant No, 2 has mismanaged the patient. So far as the role of defendant No, 1 is concerned, the Board has concluded that being the owner and the administrator of Rehman Memorial Hospital she is responsible for the wrong doings including record keeping and mismanagement at her hospital apart from her professional gross negligence.
42. The Board has further stated that defendant No, 1 is a Government Servant working as a Senior Medical Officer at Government Dispensary Garibabad, Liaquatabad, how she is running a clinic in the morning and the above named hospital, is also remained unrebutted. It is also seen from the record that defendant No,1 has submitted nothing in her defence as she was debarred from filing her written statement. It is also noted that when the bailiff of this Court tried to give her Court notice she and her husband abused the said court's bailiff. Keeping in view the evidences, report of the Board and other documents case of gross negligence and carelessness on the part of defendants is established. Consequently this issue is decided in favour of the plaintiffs and against the defendants.
43. ISSUE NO.5.--- Whether the plaintiffs are entitled to receive a sum of Rs,10,365,000 as compensation and damages from the defendants jointly and severally?
44. ' While dealing with the cases like the one in hand the court is required to see whether defendants were negligent in performing their duties, whether the defendants acted in careless manner, did the defendants carelessly caused damage and finally who was responsible for such damage. Only after answering the above questions, a question would arise as to what extent of damages are the defendants liable and how much is the damage worth in money.
45. ' Medical tests had proved that the deceased was suffering with jaundice prior to the operation but she was never informed about that even the defendant No, 2 did not care to go through the record/reports prior to conducting the operation. It were the defendants who had chosen to do a job involving special skill and hence at this stage could not absolve themselves of their misdeeds.
46. They were the persons possessing special knowledge and skill and were required to perform their duty with care and caution. If the defendants had considered themselves incompetent to perform such duty or the facilities available in the said hospital were not of the required standard, they should have referred the case of the deceased to some other specialist doctor/hospital prior to the operation, which was not done and the operation was performed at the place which admittedly had no proper infrastructure. Even after the operation when the deceased complained about acute pain in abdomen and having diagnosed out their negligence the defendants kept assuring the husband of deceased and the deceased that nothing went wrong. The defendants did not take any positive step to cure the ailment caused due to their negligence. The enquiry committee has also observed that no post operation care of the deceased was even undertaken by the defendants. During the time the deceased complained of pain apart from applying bandages no action was taken by defendants to properly look after the deceased after the said operation.
47. As the death of deceased was established to have been caused by neglect and carelessness of the defendants, plaintiffs being heirs and beneficiaries of the deceased in my opinion are entitled to compensation and damages. It is not possible to lay down any formula or yardstick by which it can be measured or translated in terms of money. However, attending circumstances, age, sex, nature, intensity; duration, resulting pain are some of the relevant considerations for determining fair and reasonable compensation for such loss or suffering.
48. In view of the above discussion I am of the view that defendants are liable to compensate the damages in a sum of Rs,10,00,000 (Rupees one million) each i,e, they both will separately pay Rs,10,00,000 to the plaintiffs. The defendant No, 1 will also pay the husband of the deceased an amount of Rs, 3,65,000 incurred on the medical expenses as claimed by him. While giving the above observation I also have had the benefit of going through the elaborate and erudite order of this court in the case of Mst. Rahat All v. Dr.Saeeda Rehman reported in 2002 CLC 96 and reliance is placed on the same.
49. ' ISSUE NO.6.--Whether the plaintiffs are entitled to take action against defendant No,2 of the given voluntarily consent by filling the form prior to operation which includes all risk and consequences?
50. It is a fact that prior to operation legal heirs/guardian of each patient are required to give a consent in writing to the hospital for carrying out necessary treatment including surgery. This, however, does not permit the hospital/doctor to act negligently and carelessly. In case immediately after operation of the deceased it was realized that something was wrong and necessary test/examination were carried and it was determined that there is a fistulae in the bile duct the same would have been attended to immediately without any complications. However, it was not done and thus, the defendants failed to show that proper care and caution was taken. On the contrary, the defendants kept assuring the husband of the deceased as well as the deceased that nothing was wrong. This is not included in "all risk and consequences" as it was sheer negligence and carelessness on the part of the defendants which, ultimately, resulted in the death of the deceased. Apart from various rules of the hospital the implied agreement between the patient and the doctor is that a doctor in discharging of his duties is required to take all due care and caution to save the life of the patient. In the instant case deceased was admitted in defendant No,1 's hospital and had undergone an operation by signing memo of consent. A professional like a doctor and surgeon owes great duty to their patients and should exercise all due care, take necessary precautions, give proper attention while extending any advice, treatment or when operating upon. Generally the courts are slow in attributing negligence on the part of professionals like doctors and surgeons but if it is established through cogent evidence that the said person had failed to take precaution, due care and attention or had acted carelessly and negligently then in such cases strict action has to be taken against such delinquent persons. The Board, constituted under directives of Government of Sindh, Health Department, has held the defendants negligent. As in the Issue No,4 negligence on the part of defendants has been established this issue is, therefore, answered in affirmative.
51. ISSUE NO.7.--What should the decree be? (Wrongly mentioned in order dated 1-9-2003 as '8')
52. ' As I have already observed above that the deceased person has expired due to the negligence caused by defendants the res ipsa loquitur in my opinion is fully applicable to the present case.
53. When the tests were conducted prior to the operation it transpired that deceased was suffering from jaundice and even then defendant No,1 asked the defendant No,2 to perform the said operation. Defendant No,2 is guilty of the fact that, instead of acting on the advice of defendant No,1, he should have studied the case file and patient record himself before operating her. Hence in my opinion defendants had full knowledge of the illness of patient, her condition, what treatment has to be given and what post and pre operation requirements have to be taken in this regard.
54. However, they failed to perform their duty properly. It is a trite law that burden to prove that no negligence has been committed by the person lies upon his shoulders to prove his innocence and to prove that he has neither been negligent nor failed to take proper or normal care of the deceased. The defendants are thus found to be delinquent in performing their duties.
55. ' The upshot of the above discussion is that both the defendants will pay an amount of Rs, 10,00,000 (Rupees one million) each to the plaintiffs. The defendant No,1 will also pay to the plaintiffs an amount of Rs,3,65,000 spent by the husband of the deceased on treatment of the deceased. The amount of compensation will be shared amongst the plaintiffs equally.
56. ' The matter does not end here, as the defendants have committed gross negligence and carelessness in their professional duties, due to which a person had lost her life, it would be appropriate to refer this matter to Pakistan Medical and Dental Council (PMDC) for necessary action. Accordingly, the office is directed to send a copy of this order to Officer Incharge, PMDC with directions to take necessary action in accordance with law, keeping in view the earlier report submitted by the Board constituted under the directives of the Government of Sindh and to submit its report to the MIT of this Court within a period of two months.