Peshawar High Court: While deciding this revision petition revolving around issues of medical negligence and appropriateness of damages awarded related to a medical procedure which was supposed to be simple debridement but converted to amputation instead, the Bench of Syed Arshad Ali, J.*, held that oral consent, allegedly given during an ongoing surgery when the patient is under duress, anaesthesia, or limited capacity, cannot be considered truly informed or voluntary for such a drastic change.
Highlighting the necessity of informed consent and doctor’s duty of care, the Court further stated that the decision to perform an amputation instead of a debridement was a material risk and a significant departure from the originally contemplated procedure, necessitating comprehensive discussion with the patient, or their legally authorized representative, about the risks, benefits, and alternatives before proceeding.
Background and Legal Trajectory
On 16 October 2009 the plaintiff sustained severe injury to his middle finger caused by a tractor. After seeking preliminary medical aid at Civil Hospital Tangi, Charsadda, he approached the Rahman Medical Institute on 20 October 2009 for specialized treatment. Upon examination by 2nd defendant, the plaintiff was referred to the 1st defendant plastic surgeon (defendant surgeon), who advised a staged reconstructive procedure. The plaintiff was admitted on 24 October 2009, and a formal consent form was executed, specifically authorizing “simple debridement”. However, during the surgical procedure performed under local anaesthesia, the defendant surgeon proceeded to amputate the finger.
The plaintiff alleged that the amputation was committed without informed consent and constituted gross professional negligence, resulting in permanent disability and mental agony, for which he sought damages amounting to Rs. 6,000,000. Per contra, the defendants stated that the amputation was a medical necessity dictated by the clinical condition of the finger and was performed with the oral consent of the plaintiff during the surgery.
The Trial court after framing the issues and recording the evidence of the parties, partially decreed the suit to the extent of Rs. 500,000 against the defendant surgeon while dismissing the claims against the other defendants. This verdict was challenged through cross appeals by both the parties. While the defendants prayed for dismissal of the suit, the plaintiff sought enhancement of damages.
The Additional District Judge-X, Peshawar (appellate court) vide the impugned judgment, concurred with the findings of the Trial court and dismissed both appeals, thereby maintaining the original decree. Aggrieved with this decision, the parties reached the High Court vide the present revision petition.
Court’s Assessment and Decision
Perusing the matter, the Court firstly reiterated the scope of the scope of revisional jurisdiction under Section 115, Civil Procedure Code, 1908 (CPC). It was stated that the High Court, in its revisional capacity, does not act as a second Court of First Appeal. Its jurisdiction is primarily confined to correcting jurisdictional errors, material irregularities in the exercise of jurisdiction, or instances where the subordinate courts have acted in violation of law or failed to exercise jurisdiction vested in them. It was noted that since the lower courts concurrently held the defendant liable for medical negligence, therefore, the Court must examine whether these concurrent findings are so perverse, illegal, or suffer from any material irregularity as to warrant interference under Section 115 CPC.
Examining the merits of the case, the Court noted that primary determination rested upon whether the surgical procedure performed by the defendant surgeon, i.e., the amputation of the plaintiff’s finger, was a permissible exercise of clinical judgment or a negligent act beyond the scope of informed consent. Relying on relevance precedents, the Court emphasised that the relationship between a doctor and a patient is not merely professional; it is inherently contractual and fiduciary. The Court pointed out that facts of the case at hand case revealed that the patient was admitted for “simple debridement” but underwent an “amputation”. “This fundamental alteration in the surgical procedure, from a conservative intervention to a drastic and irreversible one, lies at the heart of the negligence claim.”
The Court reiterated that the issue of consent is paramount in medical practice. The Court took note of the defendant’s contention that oral consent was obtained during the surgery. However, the Court was of the view that this assertion fundamentally misunderstood the nature of informed consent, particularly for a procedure as life-altering as an amputation. Relying on Dr. Atta Muhammad Khanzada v. Muhammad Sherin1, the Court stated that even with consent, negligence cannot be excused. The Court highlighted that the nature of consent required for such a significant procedure as in the present case is, “informed consent”, which goes beyond a mere verbal assent.
The Court placed reliance on Montgomery v. Lanarkshire Health Board (General Medical Council intervening), [2015] 2 WLR 768, wherein it was held that “A doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” the Court stated that a risk is material if a reasonable person in the patient’s position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.
The Court further stated that the duty of care extends to providing accurate and complete information, and any misinformation can constitute negligence. The shift from debridement to amputation, without demonstrably informed and comprehensive consent, clearly falls within the ambit of misinformation or inadequate information, constituting a breach of the doctor’s duty of care. “Even, if consent is obtained for surgery, it does not absolve the doctors from acting with due care and caution.”
The Court stated that in cases of medical negligence, it is crucial to establish the burden of proof. The Court pointed out that in the present case, where a patient was prepared for a minor procedure and subjected to a major, irreversible one without proper consent, the burden shifted to the surgeon to provide a compelling and legally sound justification for such a drastic change in the absence of valid informed consent. The Court found that the defendant failed to discharge this burden before the lower courts.
Highlighting the necessity of adequate remedies for violations of fundamental rights, including the right to life and dignity, which are impacted by medical malpractices, the Court stated that amputation of a limb is an irreversible and life-altering event, causing immense physical pain, psychological trauma, and a permanent reduction in the quality and amenities of life. Given the gravity of the injury and the profound impact on the plaintiff’s life, the Court noted that Rs. 500,000 awarded by the lower courts for non-pecuniary loss, in light of the “Rule of Thumb”, could not be deemed arbitrary or excessively low to warrant interference in revisional jurisdiction.
Therefore, in view of the aforestated assessment, the Court found no legal infirmity in the concurrent findings of the lower courts and the revision petition was consequently dismissed.
[Dr. Saqib Shahab v. Lutfullah, Civil Revision No.215-P/2020, decided on 2-7-2026]
*Judgment by Justice Syed Arshad Ali
Advocates who appeared in this case :
For the Petitioner(s): Mr. Hassan Naeem Saber, Advocate
For the Respondent(s): Mr. Abid Ali Khan, Advocate
1. 1996 CLC 1440
