1996 C LC 1440
[Peshawar]
Before Qazi Muhammad Farooq and Shakirullah Jan, JJ
Dr. ATTA MUHAMMAD KHANZADA‑‑‑Appellant
versus
MUHAMMAD SHERIN‑‑‑Respondent
Regular First Appeal No.3 of1994, decided on 25th April 1996.
(a) Tort‑‑‑
‑‑‑‑Negligence of medical practitioner‑‑‑Duties owed to patient‑‑‑Burden of proof of negligence‑‑‑Extent‑‑‑In suit for damages involving the negligence of medical practitioner, the burden of proof would be on plaintiff‑‑‑Where plaintiff adduces requisite evidence then point for determination would be whether on that evidence negligence can be reasonably inferred or not‑‑‑Plaintiff in an action for negligence must prove that defendant was under a duty to take reasonable care towards plaintiff to avoid damage complained of or not to cause damage to the plaintiff by failure to use reasonable care; that there was a breach of duty on the part of the defendant; and that breach of duty was the legal cause of damage complained of and such damage was reasonably foreseeable.
Phillips India Ltd. v. KunjuPunnu AIR 1975 Bom. 306 rel.
(b) Tort‑‑‑
‑‑‑Suit for damages‑‑‑Alleged physical and mental torture suffered by plaintiff on account of negligence of defendant‑‑‑Trial Courtawarding damages to plaintiff on proof of negligence of defendant in conducting operation of eye of plaintiff‑‑‑Validity‑‑‑Evidenceadduced by plaintiff made it manifest that he had squarely discharged burden of proof placed on him‑‑‑Plaintiff not only examined himself but also produced expert evidence to strengthen his case‑‑‑Plaintiff’sversion was further augmented by admission of defendant that he had carried out plaintiff’s second operation‑‑‑Such admission would go a long way to suggest that defendant had not performed first operation with reasonable care and circumspection‑‑‑Expert evidence of witness who had performed third operation, would show that even second operation was not performed by defendant with reasonable care, for he had found that intra‑ocularlens were not properly implanted‑‑‑Defendant was thus, liable to pay damages to plaintiff on account of his negligence while performing eye‑operation of plaintiff.
(c) Tort‑‑‑
‑‑‑‑ Damages assessed by the trial court on account of the defendant’s negligence whereby physical and mental torture was caused to the plaintiff‑‑‑Plaintiff’s (patient) consent cooperation was immaterial for the reason that consent of the patient would not absolve the doctor from performing his professional duties with care and caution.
Dr. Laxman Balkrishna Joshi v.Dr. Taimbak Bapu Godbole AIR 1969 SC 128 rel.
(d) Tort‑‑‑.
‑‑‑‑Damages‑‑‑Damagesawarded by Trial , Court to plaintiff on account of defendant’s negligence in performing eye‑operation of plaintiff and causing impairment of his eye‑‑‑Quantum‑‑‑Amountawarded by Trial Court was inordinately high and more punitive than compensatory‑‑‑In suit for recovery of damages based on personal injury, damages consist of two parts i.e. special damages and general damages‑‑‑Special damages were required to be pleaded specifically and proved being capable of exact calculation‑‑‑General damages need not be specifically pleaded but are implied and include compensation for pain, torture and suffering and for want of yardstick same are to be measured by applying the principle of “Rule of Thumb” having regard to circumstances of case‑‑‑Plaintiff had not produced any documentary evidence in regard to expenses incurred by him on his treatment, therefore, he was entitled to get general damages only‑‑‑HighCourt granted Rs.50,000 as compensation for general damages caused to plaintiff which were confined to pain, mental torture and shock‑‑‑Order of Trial Court granting exemplary damage was modified and judgment and decree were modified to the extent of damages assessed by High Court.
Mian Mohibullah Kakakhel forAppellant. Mazullah Barkandi for Respondent.
Date of hearing: 5th March 1996.
JUDGMENT
QAZI MUHAMMAD FAROOQ, J.‑‑‑This.is a Regular First Appeal by Dr. Atta Muhammad Khanzada, an Eye Specialist, against the judgment and decree of the learned Civil Judge Ist Class, Peshawar, dated 3‑11‑1993 by which the suit of the respondent MuhammadSherin, an Ex‑Councilor and landlord, for recovery of Rs.5,50,000 compensation for medical treatment and mental torture was decreed with costs.
2. The suit was filed by the respondent on 14‑7‑1991 wherein it was alleged that the appellant had implanted an Intra‑Ocular Lens in one of his eyes through an operation carried out in his private Clinic known as ‘ AI‑Noor EyeClinic’ situate in University Town, Peshawar and had charged a sum of Rs.8,000as fee and advised him to show up after a fortnight. Shortly, after the operation, he felt pain in the operated eye and swelling also developed around it on which he contacted the appellant who after charging his consultation fee to the tune of Rs.200 informed him that the lens had been implanted upside down and second operation shall have to be carried out. The second operation was carried out on that very day without local anesthesia and medical precautions and after the operation, he was lodged in the living quarter of the Chowkidar of the clinic and no post-operative care was provided and when he drew the appellant’s attention to his plight he gave him a prescription with the direction to see him after 20 days. However, when he met him after the stipulated period he again charged the consultation fee and after checking the eye expressed his inability to eliminate the ailment and advised him to use the prescribed medicine for one month. He accordingly went back to his village but the condition of his eye started deteriorating and when the pain and ago assumed appalling proportions and he lost vision of the operated eye he went to Abbottabad where an Eye Specialist operated upon his eye and removed the lens which was not properly implanted He remained admitted in the hospital for 19days and suffered immense physical and mental torture. That it was on account of the negligence, carelessness, and wrong treatment of the appellant that he had suffered physical and mental torture and. as such was entitled to get a sum of Rs.5,50,000 as compensation.
3. The appellant contested the suit on a variety of grounds, both legal as well as factual, and claimed compensatory costs by describing the suit as false and vexatious. On the factual side, it was averred that the appellant was the family doctor of the respondent and had operated upon his eye and implanted the Intra?-Ocular Lens with his consent strictly in accordance with the prescribed procedure, utmost care, and caution and to his entire satisfaction and advised him to see him after two weeks. That the lens was implanted properly but during the period of convalescence the respondent on his own had put Atropine Eye Drops in‑the operated eye and also rubbed it as a result of which the pupil got dilated, the stitches came out and one of the loops of the lens emerged from the eye. Asa corrective measure he again operated upon his eye graciously and replaced the lens and had not only taken the necessary precautions but had also admitted him in a well-furnished room. The next day, he inspected his eye and on being satisfied that the operation was successful had asked him to see him after a week but he vanished.
4. The parties were put to trial on the following issues:‑‑
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit is incompetent in its present form?
(3) Whether the suit is based on malafide, if so, its effect?
(4) Whether the suit is false and vexatious if so, the defendant is entitled to compensatory costs?
(5) Whether the first operation on the plaintiff’s eye was successfully performed with the plaintiff’s consent?
(6) Whether for sheer carelessness at the part of the plaintiff, his eye got infected and resulted in the dislocation of the lens,. requiring a second operation?
?(7) Whether during the second operation neither operative carefulness nor post-operative care was observed as possible?
(8) Whether the defendant professional conduct with the plaintiff was .not proper, lacking an element of ethical responsibility and professional consideration?
(9) Whether at Abbottabad the cause of the plaintiff’s agony was diagnosed as a wrong implant of lens plaintiff’s eye by the defendant?
(10) Whether irresponsible attitude and wrong treatment caused mental torture and pecuniary loss to the plaintiff, if so, its effect?
(I1) Whether the plaintiff? entitled to the decree of damages as claimed?
(12) Relief.
5. In order to prove his case, the respondent recorded his own detailed statement and also produced two witnesses Yousaf Ghori, Head Dispenser (P.W.1), and Dr. Muhammad Aftab, CivilHospital, Abbottabad (P.W.2). The former deposed that in connection with the treatment of his eye the respondent had remained admitted in the civil hospital, Abbottabad from 28‑4‑1991 to 16‑5‑1991. He also produced the original registers and placed on record copies of the relevant documents marked as Exh.P.W.I/1 to Exh.P.W.l/3. The latter deposed that the respondent was admitted to Civil Hospital, Abbottabad on the 28‑4‑1991 for treatment of his eye. He was kept under observation and in due course it was decided that the Intra‑Ocular Lens implanted in his eye should be removed as it had become dangerous. He accordingly removed the lens on 10‑5‑1991through an operation. While answering a Court question he stated that the lens had not been implanted properly. The appellant restricted his evidence to his own statement and did not produce any witness.
6. The learned trial, Court decided issues Nos. 1, 7, 8, 9, 10 and 11 in favor of the plaintiff and the remaining issues against the defendant and passed the impugned judgment and decree on arriving at the conclusions that the first operation conducted by the defendant was not successful, the Intra‑Ocular Lens was not properly implanted, the plaintiff had lost an eye on account of the carelessness and negligence of the defendant, the consent of the plaintiff being the outcome of the defendant’s advice was immaterial and the plaintiff had suffered an irreparable loss and as such was entitled to get adequate compensation.
7. Assailing the verdict of the learned trial Court the learned counsel for the appellant argued that the allegations made by the respondent were preposterous and the evidence and other material available on record were not enough to support the same and the findings of the learned trial Court were based on surmises and conjectures which could not take place of legal proof. He further argued that the respondent must thank himself for the consequences as he had not complied with the instructions given by the appellant, had rubbed the eye, and used AtropineEye Drops on his own. He also argued that the respondent had no locus standi to sue the appellant for damages as the operation was carried out by the latter with his consent. It was further contended that the appellant was a highly qualified and eminent Eye Specialist and had carried out innumerable identical operations successfully. He further contended that the damages claimed by the respondent were unspecified and in any case, in view of the age and status of the respondent, the compensation awarded by the learned trial Court was on the higher side.
8. The learned counsel for the respondent supported the impugned judgment by reiterating the reasons recorded therein.
9. Before adverting to the findings of the learned trial Court it will be pertinent to point out that in a suit for damages involving the negligence of a medical practitioner the burden of proof is on the plaintiff and if he adduces the requisite evidence then this question would require a determination as to whether on that evidence negligence can be reasonably inferred or not. It will also be beneficial to highlight the guidelines laid down in Phillips India Ltd v. Kunju Punnu (AIR 1975 Bombay 306)that in an action for negligence against a doctor as any other action for negligence, the plaintiff has to prove:‑‑
(1) that the defendant was under a duty to take reasonable care towards the plaintiff to avoid the damage complained of or not to cause damage to the plaintiff by failure to use reasonable care; (2) that there was a breach of duty on the part of the, defendant; and (3) that the breach of duty was the legal cause of the damage complained of and such damage was reasonably foreseeable.
10. There is hardly any merit in the contention raised by the learned counsel for the appellant that the findings of the learned trial Court are based on conjectures instead of legal proof. The evidence adduced by the plaintiff makes it manifest that he had squarely discharged the burden of proof placed on him. He not only examined himself but also produced expert evidence to strengthen his case. No doubt his statement travels beyond the plaint slightly and exhibits a tendency of overshooting but even if the extraneous portions are kept aside the allegations made in the plaint stand fully established. His viewpoint is further augmented by the admission of the appellant that he had carried out a second operation. This admission goes a long way to suggest that the appellant had not performed the first operation with reasonable care and circumspection. The expert evidence furnished by Dr. Muhammad Aftab (P.W.2), who had performed the third operation, shows that even the second operation was‑ not performed by the appellant with reasonable care because had he done so the Intra‑OcularLens would have been found properly implanted. The statement of Dr. MuhammadAftab commands respect in view of his qualifications and status. He is F.R.C.S, F.C. Opthal (ENG) an Eye Specialist and Professor of Opthalmology in the AyubMedical College, Abbottabad, and a Visiting Surgeon, Civil Hospital, Abbottabad. Besides, there is nothing in his cross?-examination to suggest even remotely that he was swayed by an oblique motive or professional rivalry to make a statement against the appellant. The appellant is also a highly qualified Eye‑Specialist but it appears that either due to rush of work or some other reason he had not carried out the first operation with reasonable care and skill with the result that the corrective action was taken by him subsequently had not fructified. The contention that the respondent had himself made the operation unsuccessful by rubbing the affected eye and self‑medication is more imaginary than real. A respondent is a mature person, therefore, it does not stand to reason that in defiance of instructions he had rubbed his eye and on his own had to use atropine Eye Drops. In any case, the failure of the first operation cannot be attributed to the use of Atropine Eye Drops because after the second operation the appellant had himself prescribed the same as is evident from the prescription dated 20th April 1991 on the reverse side of Exh. P.W.2/1.
11. There is also no force in the contention that the respondent was not entitled to claim or get damages as the operation was conducted with his consent. The respondent had admittedly consented to the operation but his?consent is immaterial for the simple reason that the consent of a patient or his relatives does not absolve the doctor from performing his professional duties with care and caution. In this context the principles stated in the following excerpt from Halsbury’s Laws of England, which were affirmed by the Supreme Court of India in Dr. Laxman Balkrishna Joshi v. Dr.Taimbak Bapu Godbole (AIR 1969 SC 128) may be reproduced advantageously;‑‑
“22. Negligence: duties owed to patient ‑‑A person who holds himself out ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, 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, and duty of care in his administration of that treatment. A breach of any these duties will support inaction for negligence by the patient.”
The findings of the learned trial court on issues Nos. l to 10 is, therefore, upheld.
12. As to compensation by way of damages, we are of the view that the amount awarded by the learned Trial Courtis inordinately high and more punitive than compensatory. In a suit for recovery of damages based on personal injury, the damages consist of two parts, namely, special damages and general damages. The special damages are required to be pleaded specially and proved and are capable of exact calculation. The general damages are not specially pleaded but are implied and include compensation for pain, torture, and suffering, etc. and for want of a yardstick measured by applying the principle of ‘Rule of Thumb’‑ having regard to the circumstances of the case. The respondent has not produced any documentary evidence in regard to the expenses incurred by him on his treatment, therefore, he is entitled to get general damages. only, He is 73/75years of age and is leading a normal life. The eye which he has lost was already affected by some disease and its loss has neither impaired the quality of his life nor shortened expectation of his life or entailed any loss of earnings, The factors to be kept in view for assessing the general damages are thus confined to pain, mental torture, and shock which the respondent had suffered from the hands of the appellant. In this backdrop compensation to the tune of Rs.50,000 seems adequate. It is scarcely necessary to mention that pain and mental torture cannot be measured in terms of money and the compensation awarded on these counts is just a solatium. The findings of the learned trial court on issue No. l 1 are thus modified accordingly with, the‑ result that the plaintiff is entitled to a decree in D the sum of Rs.50,000.
For the foregoing reasons this appeal is partly accepted and the impugned judgment and decree modified to the extent that the suit is decreed for a sum of Rs.50,000 (fifty thousand) with costs in place of Rs.5,50,000.
A.A./1934/P ?????????????????????????????????????????????????????????????????????????????????????????????????????????????? Appealpartly accepted