Bibi Hanifa: Supreme Court Awards Rs. 1.5m for Surgical Negligence

Independently written and published by Shahbaz Shah Legal Journal.

Compensation for retained surgical sponges

The Supreme Court of Pakistan has awarded Bibi Hanifa Rs. 1.5 million in compensation after finding that two surgical sponges were negligently retained in her abdomen following a Caesarean section. The judgment sets aside the Balochistan High Court’s dismissal of her claim, explains the evidentiary standard in a civil medical-negligence action and directs a series of surgical-safety and accountability measures. Judgment, paragraphs 25–38.

Justice Irfan Saadat Khan wrote the judgment for a bench comprising Chief Justice Yahya Afridi, Justice Khan and Justice Shakeel Ahmed. The matters were heard on 7 July 2026, and the judgment was announced on 20 October 2026. The connected proceedings were Civil Petition 788/2018 and Civil Appeal 244/2018. Judgment, first and final pages.

The compensation concerns the retained sponges and their consequences for the mother. The judgment records the infant’s death, but makes clear that the Trial Court’s damages award was for the negligent retention of sponges, rather than an established finding that negligence caused the infant’s death. Those distinct allegations should not be conflated. Judgment, paragraphs 2–3.

What the evidence showed

Bibi Hanifa underwent a Caesarean section at District Headquarters Hospital, Pishin, on 20 November 2007. She complained of pain and fever afterwards and was told through hospital staff that the symptoms were minor postoperative complications. Independent ultrasound examinations detected an unidentified object or material in her abdomen. She later underwent another operation at Bolan Medical Complex Hospital. Judgment, paragraphs 2 and 25.1.

Dr. Inamullah, who performed the second operation, described recovering two sponges and aspirating more than a litre of foul-smelling purulent material. His evidence was supported by his report dated 23 November 2007. The Court also considered the ultrasound evidence, the operative record naming Dr. Jamila Raza and the material produced before the Trial Court. Judgment, paragraphs 25.1–25.4 and 32–33.

This evidentiary chain was important. The decision was not based solely on the patient’s assertion that something had gone wrong. It connected the first operation, the postoperative symptoms, independent investigations, the second surgeon’s findings and the exhibited material. Judgment, paragraphs 25–27 and 32–33.

Why the High Court’s reasoning did not stand

The Trial Court had awarded Rs. 1.5 million in 2009, divided among three individual defendants. The High Court subsequently set that decree aside, relying in part on departure against medical advice and its view that the sponges had not been produced. It also referred to the unsuccessful criminal proceedings. Judgment, paragraphs 3–4.

The Supreme Court found that the record contradicted the High Court’s conclusion about non-production. It identified the husband’s testimony and the appellant’s recorded production of the recovered material. The High Court had missed that evidence. Judgment, paragraph 25.2.

The respondents’ accounts also required scrutiny. The written defence denied that any sponge had been left at all, while a therapeutic-packing explanation was advanced in argument. Against that stood the independent second surgeon’s evidence and the surrounding record. The Court found that the balance of probabilities favoured Bibi Hanifa. Judgment, paragraphs 25.4–27.

Limitation: the five-day delay was condoned

One proceeding was filed within time; the connected civil appeal was late by five days. Both challenged the same common judgment. The Supreme Court considered that setting, its earlier orders listing the cases together and the explanation offered for the short delay. It condoned the five days and rejected the limitation objection. Judgment, paragraphs 14–16.

This was an exercise in the connected proceedings before the Court. It should not be read as permission to disregard limitation in every medical-negligence appeal. The common judgment, the timely connected petition and the circumstances examined by the Court were material to the result. Judgment, paragraphs 14–16.

Why the civil court could hear the damages suit

The defence argued that the Medical Tribunal Act, 2020 displaced the civil proceedings. The Supreme Court rejected that objection. The suit had been instituted in 2008, before that Act and the Balochistan Healthcare Commission Act, 2019. More fundamentally, the claim concerned compensation in tort for negligent surgery rather than a disciplinary or regulatory challenge of the type considered within the Tribunal’s jurisdiction. Judgment, paragraphs 17–19.

The Court examined section 10 of the Tribunal Act and held that its abatement language applied only to matters falling within the Tribunal’s jurisdiction. Bibi Hanifa was not seeking cancellation of registration, disputing qualifications or enforcing a duty created by the regulatory enactments discussed. She sought damages for breach of the ordinary duty of care owed by a surgeon and hospital to a patient. Judgment, paragraphs 17–19.

The important distinction is the nature of the cause of action and relief. The judgment maintained this civil damages suit; it should not be treated as resolving every possible forum dispute under every provincial healthcare regime. Judgment, paragraphs 17–19.

The civil standard of medical negligence

The Court organized negligence around duty, breach, causation and damage. In considering medical treatment, it examined the standard of a reasonably competent practitioner and distinguished negligence from a mere adverse result, an accepted treatment choice or an error of judgment that does not fall below the required standard. Judgment, paragraphs 21–24 and 28.

That distinction protects the integrity of both sides of the inquiry. An unsuccessful outcome does not by itself establish negligent treatment. Conversely, an unexplained retained surgical item, supported by independent recovery evidence and ensuing injury, cannot be answered merely by describing the consequences as normal complications. Judgment, paragraphs 25–29.

The Court referred to Bolam and Bolitho in assessing the proposed therapeutic explanation. It said that professional-judgment protection addresses a judgment actually exercised; it cannot manufacture a clinical decision that was never shown to have been made. A genuinely asserted professional opinion must also withstand logical scrutiny. Judgment, paragraph 26.1.

The article describes those authorities as used in this judgment. The actual finding remained tied to the documentary and oral evidence about this operation and the respondents’ explanation.

Res ipsa loquitur and the need for an explanation

The judgment applied res ipsa loquitur, the principle commonly expressed as the thing speaking for itself. It discussed circumstances in which an occurrence would not ordinarily happen without negligence, the relevant instrumentality was under the defendant’s management, and no satisfactory alternative explanation appeared. The retained sponges called for an explanation from the operating team. Judgment, paragraphs 26 and 29.

The Court held that the evidentiary burden passed to the doctor and hospital to explain whether there had been a deliberate therapeutic act. Their denial of recovery did not answer the independent evidence of the second operation. The inference was drawn from an established factual foundation, rather than from a general presumption that every postoperative complication is negligent. Judgment, paragraph 29.

This is why the second surgeon’s inability to say whether the sponges had originally been left negligently or deliberately was not the end of the claim. The Court considered the complete record and the adequacy of the treating team’s explanation, rather than demanding that the second surgeon determine the original team’s state of mind. Judgment, paragraphs 25.2 and 26–29.

LAMA did not erase an injury already caused

The respondents relied on LAMA, or leaving against medical advice. The evidence about whether there had been a formal referral was not uniform: Dr. Inamullah said the patient came herself, while relatives described a referral chit and ambulance assistance from the original hospital. The Supreme Court expressly noted that difference. Judgment, paragraph 30.

Its central reasoning concerned timing and causation. Bibi Hanifa’s pain and deterioration began after the original surgery and before she left. A patient seeking another opinion because a dangerous condition is not being addressed cannot automatically be denied redress through the LAMA label. The Court assessed the condition before departure and what the subsequent treatment disclosed. Judgment, paragraphs 30–31.

The ruling does not make medical advice irrelevant. It rejects using departure as a complete answer to negligence that the evidence showed had already occurred. The causal sequence, rather than the label alone, must be examined. Judgment, paragraph 31.

Civil liability is different from criminal guilt

The judgment applied the balance of probabilities to the damages claim and discussed Article 2(4) of the Qanun-e-Shahadat Order in explaining proof. It contrasted that inquiry with the higher threshold governing criminal responsibility. The failure of the earlier criminal proceedings therefore did not determine the civil case in the respondents’ favour. Judgment, paragraphs 4, 8–9 and 32.

On that civil standard, the independent surgeon’s testimony, contemporaneous report, recovery evidence and course of treatment established the retained sponges and resulting harm. The Supreme Court was deciding compensation for a proved civil wrong, not recording a criminal conviction for medical negligence. Judgment, paragraphs 32–36.

How the Rs. 1.5 million award was calculated

The Court described compensation as restorative rather than punitive. It fixed distinct amounts for the consequences established in this case:

• Rs. 200,000 for medical and re-operative expenses.
• Rs. 600,000 for physical pain, suffering and surgical trauma.
• Rs. 500,000 for mental anguish and emotional distress.
• Rs. 200,000 for loss of amenities and bodily integrity.

The total was Rs. 1,500,000. The judgment explained that pecuniary losses and non-pecuniary suffering involve different modes of assessment. The figures are the Court’s award on this record, not a tariff applicable to all medical-negligence claims. Judgment, paragraph 34.

Liability was reapportioned from the Trial Court’s decree: Dr. Jamila Raza was personally liable for Rs. 500,000 and the Hospital vicariously liable for Rs. 1,000,000. Each amount was payable within sixty days of judgment, failing which recovery under land revenue laws was directed. Costs were also awarded. Judgment, paragraphs 35–36 and 38.

The hospital-safety and accountability directions

The judgment addressed the Secretary, Health Department, in the Balochistan proceedings and directed institutional safeguards as well as compensation. The directions included binding instructions within thirty days requiring the WHO Surgical Safety Checklist and documented counts of swabs, gauze, mops, needles and instruments before surgery, before closure and after closure. The counts were to be signed by the scrub nurse, circulating nurse and operating surgeon. A discrepancy required accounting for the items through search or imaging where necessary before closing. Judgment, paragraph 36, directions to the Secretary.

The Court also directed reporting of retained items, wrong-site surgery and wrong-patient procedures within twenty-four hours; an independent medical-board inquiry; disciplinary proceedings and referral to the relevant professional and healthcare regulators; appropriate hospital accountability; compensation and free corrective treatment; preservation and provision of medical records; inspections; a complaints mechanism; and periodic training and supervision. Only qualified and appropriately trained personnel were to participate in or enter the operation theatre in the capacities concerned. Judgment, paragraph 36, directions 1–10.

A compliance report through the Registrar was required within ninety days. Those periods run from the judgment and are directions to the authorities addressed; the article does not assert that implementation has already occurred or convert the order into a newly enacted nationwide statute. The judgment also permitted the Secretary to issue further necessary instructions. Judgment, paragraph 36, direction 11, and paragraph 37.

What the decision means for patients and practitioners

The decision demonstrates how a civil medical-negligence claim can succeed through a coherent sequence of records and evidence: the original operation, emerging symptoms, independent examinations, corrective surgery and proof of resulting loss. It also separates the questions that are often collapsed together: regulatory discipline, criminal responsibility, civil compensation and hospital-system accountability. Judgment, paragraphs 17–19 and 25–36.

For hospitals, the practical emphasis is on trained teams, documented counts, reliable operative records, prompt investigation and an explanation consistent with the clinical record. For claimants and counsel, the judgment illustrates the importance of proving the actual injury and causal sequence while keeping the requested relief and proper forum clear. Those lessons arise from this case; liability in another dispute still depends on its evidence and governing law.

Frequently asked questions

How much compensation did Bibi Hanifa receive?

The Court fixed Rs. 1.5 million: Rs. 500,000 personally payable by Dr. Jamila Raza and Rs. 1 million vicariously payable by the Hospital, with payment directed within sixty days. Judgment, paragraphs 34–36.

Was the award for the death of the newborn?

The judgment distinguishes that allegation. The established compensation claim concerned the retained surgical sponges and the mother’s resulting injuries and suffering. Judgment, paragraphs 2–3 and 34.

Did leaving against medical advice defeat the claim?

No. The Court examined the patient’s condition before departure and found that the pain and deterioration followed the original surgery. LAMA did not answer the negligence established on this record. Judgment, paragraphs 30–31.

Why did the civil suit remain maintainable?

The Court held that this was a tort claim for compensation, not the regulatory dispute contemplated by the Medical Tribunal objection. It also considered the timing of the suit and the scope of section 10. Judgment, paragraphs 17–19.

Does a bad surgical result automatically prove negligence?

No. The Court distinguished an adverse result or a mere error of judgment from conduct below the standard of a reasonably competent practitioner. Here, independent recovery evidence and the unexplained retained sponges established the claim. Judgment, paragraphs 24–29.

What safety measures did the Supreme Court direct?

The directions included surgical checklists and signed item counts, reporting of specified serious incidents, trained personnel, inquiry and accountability, medical records, inspections, complaints handling and a ninety-day compliance report. Judgment, paragraph 36, directions 1–11.

Sources and case reference

• Read or download the complete supplied judgment.
• Searchable judgment page and case particulars.
• Supreme Court of Pakistan: latest judgments.

The analysis follows the supplied judgment. Earlier authorities are described as the Court discussed them in this case.