2013 M L D 743 6/7/20, 2:04 AM

2013 M L D 743

[Peshawar]

Before Waqar Ahmad Seth, J

Mrs. ALAM ARA---Appellant

Versus

Dr. SHAISTA TARIQ---Respondent

R.F.A. No.32 of 2007, decided on 1st January, 2013.

(a) Suit for damages---

----Medical malpractice/negligence---Suit for damages and compen-sation alleging medical malpractice on

part of defendant (doctor)---Plaintiff contended that due to negligence of the defendant, who prescribed
medicines for high-blood pressure to plaintiff, the plaintiff miscarried on her pregnancy and almost died in a
C-section operation---Suit was dismissed by Trial Court---Validity---Plaintiff had failed to provide proof of
any defect in the ultrasound machines and quality and maintenance certificates for the same were clear---
Plaintiff had admitted that she was suffering form high blood pressure and that medicine prescribed by
defendant made her feel better---Plaintiff had approached the defendant for treatment of only blood pressure
and medicines were prescribed, therefore, only for high-blood pressure---Record nowhere suggested that
defendant/doctor had posed herself as a gynecologist in front of the plaintiff---Plaintiff was not under the sole
management of the defendant as she consulted a gynecologist and remained under treatment in a hospital---
Record also showed that it was a third C-section of the plaintiff due to her high blood pressure and it was not
a result of the defendant's negligence---Plaintiff thus failed to prove any negligence on part of defendant, and
the suit was rightly dismissed---High Court dismissed appeal of plaintiff, in circumstances.

(b) Tort---

----Negligence and carelessness---Cause of action---Duty to take care---For the purpose of negligence and
carelessness and the duty to take care, the essentials were that negligence in the sense of mere carelessness,
would not give rise to any cause of action---Carelessness, however, would assume legal quality of negligence
where there was duty to take care and where failure in that duty had caused damages---Duty to take care was,
thus, an essential ingredient of the "tort of negligence" and unless such duty was established, no case of
actionable negligence could arise.

2010 MLD 134 rel.

(c) Suit for damages---

----Maxim: Res Ipsa Loquitur---Damages, proof of---In a suit for damages, the maxim Res Ipsa Loquitur was
to be proved which meant that things (should) speak for themselves---Said doctrine applied firstly, when
things that inflicted damage were under sole management and control of the defendant, and secondly, that

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occurrence was such that it would not have happened without negligence, and thirdly, that there must be no
evidence as to why or how the occurrence took place.

Abdul Shakoor Khan for Appellant.

Abdul latif Khan for Respondent.

Date of hearing: 1st January, 2013.

JUDGMENT

WAQAR AHMAD SETH, J.---Mrs. Alam Ara has filed the present appeal against the judgment and decree
dated 26-4-2007, passed by the learned Civil Judge-I, Haripur, whereby the suit of the present appellant was
dismissed.

2. The brief and essential facts leading to the present appeal are that the present appellant filed a suit for
recovery of damages of Rs.2,500,000 and stated that during pregnancy she visited the respondent for
treatment and medical advice on 13-11-2002; that after checkup the respondent advised her some medicine
for cure of blood pressure and verbally asked to visit after a week; that on 20-11-2002 she again visited the
respondent who after checkup advised her medicine for blood pressure and also diagnosed a single alive fetus
with cardiac and body movements; that the appellant used to visit the respondent till 1-3-2003 who asked the
appellant to carry on with the prescribed medicine without worrying about any mishap; that the diagnosis of
the respondent dated 30-12-2002 showed the appellant's case to fall under IUGR category but no advice for
care or hospitalization was extended to the appellant; that on 23-12-2002, the appellant felt severe problem as
she was not feeling any movement of the fetus; that she then visited the respondent who asked her to continue
the medicine; that the appellant visited the respondent again on 30-12-2002, with the same complaint but was
again advised to continue the prescribed medicine; that the appellant on 3-1-2003 in extreme pain visited the
respondent with the same complaint but she was orally advised to take bed rest; that thereafter the appellant
was not satisfied and consulted Dr. Shagufta who referred her for ultrasound, to Dr. Zaffar; that after
ultrasound the intrauterine fetal demise at 24th weeks of gestation was found; that dead fetus had to be
removed through C-Section which was the third C-Section of the appellant; that this process nearly caused
the appellant her life and also rendered her incapable to conceive again; that the respondent had not properly
treated and diagnosed the appellant's problem; that the appellant might not have to suffer such pain and her
child might have survived but the respondent's wrong diagnosis and treatment caused huge loss to the
appellant for which the appellant has instituted the instant suit.

3. The respondent contested the suit and submitted her written statement in the Court. On the pleadings of the
parties, the following ten issues were framed:--

(i) Whether the plaintiff has got cause of action?

(ii) Whether the plaintiff is stopped by her own conduct to bring the present suit?

(iii) Whether the suit is not competent in its present form?

(iv) Whether the suit is within time?

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(v) Whether the plaintiff has brought the suit in hand against the defendant with mala fide intention to black
mail for ulterior motive?

(vi) Whether the plaintiff is entitled for damages of Rs.25 lac on account of loss of life of her baby and
becoming permanently incapable to procure baby due to negligence and non-professional conduct of the
defendant?

(vii) Whether the act of the defendant being in charge of ultrasound treat the plaintiff's case as a gynecologist
and giving opinion of consultant radiologist and sinologist was not a professional misconduct and proved
negligence for the demise of plaintiff's baby and making her permanently incapable for procuring baby?

(viii) Whether defendant without advancing any valid reasons and circumstances could make a claim for
damages against the plaintiff for the reason of his filing the suit in hand that too without paying any court fee
through statement like set off?

(ix) Whether the plaintiff is entitled for the compensation as claimed in the plaint of the basis on allegation
mentioned in the plaint, if so to what extent?

(x) Relief?

4. The parties produced their pro and contra evidence and after hearing arguments of learned counsel for the
parties, the suit of the present appellant was dismissed, hence this appeal.

5. Valuable arguments of learned counsel for parties heard and available record thoroughly perused.

6. Learned counsel for appellant contended that the judgment and decree of the trial Court is against the facts
and law; that the findings on issues Nos.6 and 7 are against the evidence brought by the appellant on record;
that the trial Court without any justification has held the Exh. P.W.1/1 the Ultra Sound report showing the
fetus was dead at the gestation of 24 weeks as invalid and the same was the material evidence against the
respondent; that the admission of appellant that she visited CMH Gynecologist once on the advice of
respondent cannot be taken against the appellant for the purpose of dismissal of her suit; that as the
respondent could not bring any documentary proof against the appellant on the record that CMH
Gynecologist had taken Ultra Sound machine report speaking contrary to the report of Dr. Zaffar P.W.1; that
the respondent failed to produce the CMH Gynecologist in witness box in support of her defence; that the
trial Court has not correctly appreciated the evidence available on record.

7. Learned counsel for respondent opposed the arguments advanced by learned counsel for appellant and
argued that the learned trial Court correctly appreciated the evidence available on record while dismissing the
suit of the appellant.

8. Perusal of the record would show that the findings of the learned trial Court are correct and warrants no
interference from this Court. The appellant has failed to prove that there was some defect in the ultrasound
machine and the same was not properly functioning. The quality certificate and regular maintenance
certificate are clear proof of the fact that ultrasound machine of the respondent was properly functioning. The
appellant admitted that she is suffering from high blood pressure and the respondent advised her to be careful
regarding the blood pressure. That appellant admitted that after using the medicine prescribed by the
respondent, she felt quite better. The plaintiff has failed to prove any negligence on the part of respondent.

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9. The plain reading of the plaint would reflect that appellant approached the respondent for treatment of her
blood pressure only and the respondent prescribed her the medicine only for the purpose of blood pressure.
The entire documents/prescriptions exhibited before the trial Court reflects that appellant was having 170/120
blood pressure, throughout and the medicine so prescribed was only for the same purpose. No where record
suggests that respondent posed herself as gynecologist.

10. Appellant in support of her claim appeared as P.W.3 and categorically admitted in her cross examination
that she got the treatment of blood pressure from the respondent and got better. It is also admitted by the
appellant that respondent advised her to consult some gynecologist or to examine herself in the CMH.
Appellant in her plaint and evidence suppressed the fact that after the advice of respondent she got herself
examined in the CMH or through gynecologist (last six lines on page-5 of PW.3 statement are referred).

11. On page-8 of cross-examination P.W.3/appellant herself admitted that on 30-12-2002 she felt the
movement of the child a bit slow and on 3-1-2003 she approached one Dr.Zaffar for Ultra-sound at Islamabad
and thereafter she had the operation, which negates the story that child was dead one month prior to the
diagnoses and treatment by the respondent.

12. For the purpose of negligence and carelessness, the duty to take care, the essentials are that negligence in
the sense of mere carelessness, would not give rise to any cause of action. Carelessness, however, would
assume legal quality of negligence where there was duty to take care and where failure in that duty had caused
damages. Duty to take care was, thus, essential ingredient of tort of negligence. Unless such duty was
established, no case of actionable negligence could arise.

13. The negligence may be simple or gross for the purpose of civil and criminal liabilities and is defined in
general term reported in 2010 MLD 134, as under:--

"Omission to do something which ordinarily regulates the conduct of human affairs, a reasonable man would
not omit to do in normal circumstances and non-performance of an act by a person to which he is obliged to
perform as positive duty is called negligence. The neglect of use of ordinary care or skill in respect of an act
to be performed as duty with ordinary care, in consequence to which an other person may suffer injury to his
person or loss is caused to his property is negligence in civil and criminal law."

14 For the purpose of suit for damages the doctrine "Res ipsa loquitur" is to be proved. The maxim means
that the things speak for themselves. This doctrine applies firstly, when the things that inflicted the damage
was under the sole management and control of the respondent and secondly, that occurrence is such that it
would not have happened without negligence and thirdly, that there must be no evidence as to why or how the
occurrence took place. Applying the said formula and doctrine the evidence in the instant case reflects that
appellant was not under the sole management and control of the respondent rather she had consulted the
gynecologist and remained under treatment in the CMH besides being finally operated by a lady Doctor
Nargas Danish. Secondly it is on record that it was not the negligence of the respondent rather it was the
third-fourth C- Section of the appellant due to her higher blood pressure. The entire evidence was read over
with the assistance of learned counsel for the parties but no where it was proved that what unfortunate has
happened was due to the medicine and treatment given by the respondent. Specially in the circumstances
when appellant travelled from Haripur to Islamabad without the consent and permission of the respondent.

15. Lady Dr. Nargas Danish a gynecologist who operated upon the appellant and removed the dead

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fetus/body was produced by the appellant as P.W.2 who admitted correct that any disease of blood pressure
affects the growth of fetus, moreover the said witness of the appellant also admitted that there is a possibility
of margin of two weeks in assessing the age of fetus from BPD and FL. All this creates reasonable doubt in
favour of the respondent.

16. P.W.2 who is the witness of appellant also stated on oath that while conducting operation on appellant she
has not removed the uterus and has not closed the philopion tubes hence, the appellant is capable of
reconceiving the child, thus, the future is safe, with no reason to believe that fifth C-Section is impossible. On
the basis of this evidence the episode can be easily termed as an act of God.

17. The findings so recorded are, thus, in accordance with the admitted record, with no misreading or non-
reading of evidence hence warrants no interference from this Court.

18. Accordingly, for the reasons stated hereinabove, the present appeal being devoid of merit is dismissed
with no order as to cost.

KMZ/40/P Appeal dismissed.

;

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