Dr. MUHAMMAD ASIF OSAWALA vs Mrs — 2022 PLD 430 KARACHI-HIGH-COURT-SINDH

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Dr. MUHAMMAD ASIF OSAWALA VS Mrs. QAMAR-UN-NISA HAKRO Ss. 2 (q), 13, 14, 29 (4) & 36---Sindh Healthcare Commission Act, 2013 (VII of 2014), S. 29---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan, Art. 199---Medical negligence---Forum---Jurisdiction---Petitioner was medical practitioner and respondent filed complaint against him before Consumer Court alleging medical negligence---Consumer Court declined to reject the complainant---Petitioner's contention was that Consumer Court lacked necessary expertise and it was Healthcare Commission that was to make assessment in that regard in view of standards envisaged under Sindh Healthcare Commission Act, 2013, and for the jurisdiction of Consumer Court to be triggered/attracted there had to be a prior determination of culpability on the part of the practitioner by that quarter---Validity---Ouster of jurisdiction in terms of a provision in special law could at the best operate to the extent of a subject co-extensive to powers of forum under that enactment---Scope of S.29 of Sindh Healthcare Commission Act, 2013, was to be construed accordingly with reference to the powers of the Commission---For a claim for medical/clinical negligence to be established, a medical practitioner was to be found to have breached a duty of care to a patient, who in turn had suffered injury as a result of that breach---Demonstrating that a doctor breached duty of care was the first major hurdle in any negligence case but such was not always clear cut---Scope exists for genuine differences of opinion when it had come to diagnosis and treatment---Liability claims for defective services, as envisaged under S.13 of Sindh Consumer Protection Act, 2014, would similarly entail a breach of a duty to be determined with reference to the parameters laid down in S.14 of Sindh Consumer Protection Act, 2014, where quantum of damages, if any, would be circumscribed by restriction imposed in terms of S.15 of Sindh Consumer Protection Act, 2014---Provision of S.14 Sindh Consumer Protection Act, 2014, did not require prior determination to that effect be made by Commission for Consumer Court to be able to proceed on a medical negligence claim---High Court declined to interfere in the matter---Constitutional petition was dismissed, in circumstances.

Dr. MUHAMMAD ASIF OSAWALA vs Mrs — 2022 PLD 430 KARACHI-HIGH-COURT-SINDH

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