Order Sheet

IN  THE  HIGH  COURT  OF  SINDH  AT  KARACHI

Suit No. 866 of 2013

Date	Order with signature of Judge

            Plaintiff          :           Mrs. Parveen Azad,

through Mr. R. F. Virjee Advocate.

Defendant     :           The Administrator / Chairman, National Medical        

Centre (Pvt.) Ltd., through Mr. Muhammad

Abdul Rahman Advocate.

Dates of hearing  :   05.10.2015, 09.10.2015, 27.10.2015, 05.11.2015,

                                    15.12.2015, 23.08.2016 and 22.11.2016.

…………

ORDER  ON  C.M.A. No. 11922 of 2014

NADEEM AKHTAR, J. – Through this application filed under Order VII Rule 11 CPC, it has been prayed by the defendant that the plaint of the instant Suit be rejected being barred under Articles 21 and 22 of the First Schedule to the Limitation Act, 1908, read with Section 3 of the said Act.

2.         Relevant facts of the case are that this Suit has been filed by the plaintiff against the defendant for recovery of Rupees twenty million on account of damages and compensation inter alia for gross medical negligence causing the death of her husband Mr. Rahman Ghani Azad. The case of the plaintiff, as averred in the plaint, is that her husband walked into the emergency room of the defendant National Medical Centre Hospital on 02.07.2010 at 07:25 p.m. as an OPD patient with fever of 102 degrees. The doctor in charge of the defendant’s emergency room presumed that her husband was suffering from malaria and or typhoid and hence tests were taken to ascertain the reason for his fever. At the time of his admission, his blood pressure was 150/90 and pulse and temperature were 126 and 102, respectively. Instead of waiting for the results of the tests advised by him and without ascertaining the medical history of the patient, the said doctor administered number of intravenous injections to counteract malaria and typhoid in great haste and quick succession, though the test reports received subsequently in respect thereof were negative. As a result of the above, condition of the plaintiff’s husband started deteriorating rapidly and finally he collapsed, whereafter appropriate steps were not taken for his revival. It has been alleged that due to incompetence and gross medical negligence on the part of the defendant, the plaintiff’s husband, aged 58 years, lost his life on 05.07.2010 in the prime of his life with many years to live.

3.         Mr. Muhammad Abdur Rahman, learned counsel for the defendant, contended that as per the case set up by the plaintiff, this Suit is based on alleged tort, and according to the averments made in the plaint cause of action accrued to her on 02.07.2010 when her husband was admitted by the defendant-hospital and then on 05.07.2010 when he passed away there. He submitted that in view of the plaintiff’s claim, this Suit will fall under the Fatal Accidents Act, 1855 (‘the Act of 1855’), and under Article 21 of the Limitation Act, 1908, a Suit can be filed by the legal representatives under the Act of 1855 within one year from the date of death of the person killed. It was contended that the prescribed period of limitation in respect of the plaintiff’s claim for mental torture and recovery of damages and compensation on account of death of her husband (died on 05.07.2010) expired on 04.07.2011. He placed reliance upon Muhammad Anwar V/S Pak Arab Refinery Ltd., 2007 CLC 1821 and Parveen Akhtar V/S Consulate General of USA at Karachi, 2006 MLD 1657 in support of this submission. Learned counsel further contended that if the plaintiff’s claim is treated to be that for compensation for any malfeasance, misfeasance or nonfeasance independent of contract, the Suit ought to have been filed by her within two (02) years as provided for under Article 36 of the Limitation Act, 1908. He submitted that the Suit, having been filed on 03.07.2013, is barred by time in view of Articles 21 and 36 ibid. In support of the above submission, he relied upon Master Abdul Basit V/S Dr. Saeeda Anwar, PLD 2011 Karachi 117, Sajid Ahmed Ansari V/S Aga Khan University Hospital, PLD 2008 Karachi 80, Kayumarz V/S Messrs Mohammadi Tramway Company, Karachi and others, PLD 1968 Karachi 376, WAPDA V/S Rashid Muhammad, 1989 MLD 4225 and  Johnson and another V/S The Madras Railway Company, ILR 1905 Madras 479. It was urged that the Suit is barred by limitation in any event in view of the above, and as such the plaint is liable to be rejected.

4.         On the other hand, Mr. R. F. Virjee, learned counsel for the plaintiff, contended that this case is not governed by Articles 21 and or 36 ibid as there was a contractual relationship between the parties in view of the documents signed by the plaintiff and her deceased husband on the one hand and the defendant on the other. He further contended that in consideration of the medical services offered and promised by the defendant, substantial amounts, as demanded by the defendant, were paid by the plaintiff, which also established that there was a contract between the parties. He pointed out that the dead body of the plaintiff’s husband was released by the defendant only after receiving the entire amount of its bill. According to him, the Suit filed by the plaintiff within three (03) years from the date of death of her husband is within time under Article 115 of the Limitation Act, 1908, which provides limitation period of three (03) years for Suit for compensation for the breach of any contract, express or implied, not in writing or registered, from the date when the contract is broken or where there are successive breaches when the breach in respect of which the Suit is instituted occurs, or where the breach is continuing when it ceases. It was urged that medical negligence cannot be equated to a death by accident. In support of his above submissions, learned counsel placed reliance upon S. Thyagarajan V/S Unit Trust of India, 1986 Vol.59 Company Cases Page 458 (In the Karnatka High Court), Dr. P.B. Desai V/S State of Maharashtra, AIR 2014 SC 795, Ramesh Gobindram (deceased by LRs.) V/S Sugra Humayun Mirza Wakf, AIR 2010 SC 2897, Abdul Ali Abdul Rahman V/S Mst. Jannat and others, AIR 1957 Allahabad 553, and Postgraduate Institute of Medical Education and Research Chandigarh V/S Jaspal Singh and others, 2009 Vol.7 SC Cases 330.

5.         In his rebuttal, learned counsel for the defendant submitted that it is not alleged anywhere in the plaint that compensation is being sought by the plaintiff on account of breach of a contract, therefore, the plaintiff cannot be allowed to deviate from her pleadings as held in Muhammad Iqbal V/S Mehboob Alam, 2015 SCMR 21 and Akbar Ahmed V/S Irshad Ahmed, PLD 2014 SC 331. He further submitted that in the absence of allegations of breach of contract, it should be deemed that the Suit is either based on alleged tort or is for compensation for any malfeasance, misfeasance or nonfeasance independent of contract.

6.         I have heard the learned counsel for the parties at length and with their able assistance have also examined the material available on record and the law cited at the bar. On 27.10.2015, Dr. Muhammad Umar Jung, the Administrator of the defendant-hospital, was present in Court. In order to ascertain whether or not any contract or other document was signed in this case by the parties, he was directed to produce the original record of the deceased. He made a statement on that date that the defendant does not have the original record of the deceased, but he can produce originals of blank admission form, consent form and other relevant documents which are signed in every case either by the patient himself or by his attendant when the patient is admitted at the hospital or he undergoes any major procedure or treatment. In compliance of the direction given to him on 27.10.2015, he produced three consent forms viz. ‘Consent for Operation, Administration of Anesthesia and Rendering of other Medical Services’, ‘Consent Form for Invasive Procedures in ICU’ and ‘Biopsy / Procedure Consent Form’. A bare perusal of all the above consent forms shows that by signing the same, not only consent and authority is given by the patient in favour of the defendant-hospital to perform the acts specified therein, but the patient also agrees to the terms and conditions listed therein. It may be noted that all the three consent forms are to be signed by the patient / his authorized representative / attendant as well as by the hospital, and not by the patient’s side alone ; and, ‘Consent for Operation, Administration of Anesthesia and Rendering of other Medical Services’ and ‘Consent Form for Invasive Procedures in ICU’ are also to be signed by a witness.

7.         The defendant is not a charitable hospital and is managed by a private limited company viz. National Medical Centre (Pvt.) Limited which works for gain. It is an admitted position that the above documents were executed in the present case and charges and fee were received by the defendant for the treatment and medical services purportedly provided to the deceased. In my humble opinion, the above documents admittedly signed by both the parties clearly constitute a binding contract between them and the amount admittedly received by the defendant in pursuance of such contract for treating the deceased and providing medical services to him was the consideration of the contract. By entering into the contract, the intention of and understanding between the parties was that the defendant will provide medical care, treatment, assistance and services to the deceased in a professional manner promptly and to the best of its abilities, and in consideration thereof the amount charged and demanded by the defendant will be paid to it. In case of breach of the above understanding / contract, for example if the professional fee and charges to which the defendant was entitled had not been paid to it, the defendant could have sued the legal heirs of the deceased for recovery of the same on the basis of the contract. Likewise, legal heirs of the deceased are entitled to sue the defendant for damages and compensation for breach of the contract alleged in the plaint.

8.         The well-recognized principles in the above context are that when a doctor or hospital performs medical services in return for fees payable by the patient, such relationship is based on oral or written contract and the obligations of each party are dependent on the terms and conditions agreed by and between them ; it is implied by a doctor or hospital that if a patient comes to them they will provide medical services to him that are usually provided by doctors and hospitals and in return they will expect charges for their services ; by seeking medical treatment, the patient is holding himself out as being ready to pay for such services ; the relationship between the doctor and the patient is mostly contractual even if the payment for professional medical services is not made by the patient himself ; the implied contractual relationship between the doctor and the patient imposes continuing duty on the doctor requiring his professional advice or action to be reviewed in light of changed circumstances ; such contractual duties are generally more onerous in nature and extent than those imposed by tort ; and, tortious duties do not impose the extent of personal responsibility and strict liability that may be attached to contractual duties. I am of the firm view that it is not necessary that there should be a formal or written contract between a doctor / hospital and the patient as in a large number of cases no document is executed by either of the parties, and even in the absence of a formal or written contract, the implied contractual relationship between them shall be deemed to have existed in view of the above principles.

9.         In Sajid Ahmed Ansari (supra), it was held by this Court that a patient is admitted in a hospital on the basis of a contract between the patient and the hospital / doctor which could be written or oral ; in addition to the above, the implied agreement between the patient and the doctor is that in discharging his duties the doctor will take all reasonable care and caution which a prudent professional man is required to take not only to save the life of the patient, but also to rehabilitate him in the society ; and, if there was no contract between the parties, Article 36 of the Limitation Act, 1908, would apply providing two years of limitation from the date of act of misfeasance, but if there was a contract between the parties, Article 115 of the said Act would apply providing three years of limitation for compensation for the breach of contract. This view was followed by this Court in the case of Abdul Basit (supra). Both these cases support the view expressed by me in the preceding paragraph. In Dr. P.B. Desai (supra), it was held by the Hon’ble Supreme Court of India that if the patient has suffered because of a negligent action or omission by the doctor, it undoubtedly gives the patient a right to sue the doctor for damages which will be a civil liability of the doctor under the Law of Tort and/or contract, as the case may be. Since I have already held that there was a contract between the parties in the present case, this Suit cannot be deemed to be a Suit based on tort nor can Articles 21, 22 and/or 36 of the Limitation Act be applied to it. The Suit is for compensation for the breach of contract, and hence it will be governed by Article 115 of the Limitation Act providing limitation of three years from the date of breach of the contract, or where there are successive breaches when such breach occurs in respect of which the Suit is instituted, or where the breach is continuing when it ceases. The Suit having been instituted within three years is, therefore, within time. The cases relied upon in this context by learned counsel for the defendant are, therefore, not applicable to the instant case.

10.       I agree with the contention of the learned counsel for the plaintiff that death caused due to the negligence of a doctor cannot be equated to a death by an accident as held by the learned Karnataka High Court in S. Thyagarajan (supra). To my mind the main reason for the above view is that a Suit for compensation for negligent action or omission of a doctor is essentially based either on tort or a contract, whereas Suit for compensation in case of an accident is not possible under a contract as there could be no such contract and all such Suits are based purely on tort. There is striking similarity between      the medical and legal professions. In both these professions the professional doctor / lawyer accepts responsibility to take care of the problem of his patient / client in a professional manner and to the best of his abilities in consideration of his professional fee, and his patient / client agrees to pay the agreed professional fee. This relationship / understanding is either oral or written, but in any event the contractual relationship is implied as discussed above. If due to the omission or negligence of the lawyer, his client suffers any loss or injury or loses his life, the client or his legal heirs will not be entitled to sue the lawyer under tort, and their case shall not fall under the Act of 1855. Their remedy, if any, will be to sue the lawyer for damages and compensation for breach of the oral or written contract between the lawyer and his client. To my mind, similar will be the situation in case of any loss or injury caused to a patient by a negligent act by his doctor or if the patient dies as a result of such negligence. This is the other reason for agreeing that death caused due to the negligence of a doctor cannot be equated to death by an accident.

11.       As already noted above, it is an admitted position that the parties had executed the above mentioned documents in this case. I have already held that the said documents prima facie show that there was a contract between the parties, and even in the absence of a formal or written contract, the implied contractual relationship between them shall be deemed to have existed in view of the principles discussed in paragraph 7 supra. The above admitted documents cannot be ignored as it is well-settled that the accompaniments of the plaint and other undisputed material on record can be looked into for deciding whether a plaint is liable to be rejected or not. With due respect to the learned counsel for the defendant his contention that the plaintiff has not pleaded breach of contract in the plaint, is not tenable in view of the above and the authorities relied upon by him in this context are not applicable.

12.       Forgoing are the reasons of the short order announced by me on 22.11.2016 whereby this application filed by the defendant for rejection of the plaint was dismissed with no order as to costs.

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    J U D G E