[2005] KEHC 2831 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 105 OF 2000

ATSANGO CHESONI …………………………..….. APPELLANT

VERSUS

DAVID MORTON SILVERSTEIN………………..RESPONDENT

(Appeal from the decision of the Medical Practitioners and Dentists Board in the proceedings against Dr. David Morton Silverstein, delivered on 11th February 2000 in Tribunal Cause No. 1 of 2000)

JUDGMENT

A. BACKGROUND : THE MEDICAL ANTECEDENT LEADING TO INQUIRY BY THE MEDICAL PRACTITIONERS AND DENTISTS BOARD

Justice Z.M. Chesoni, who was then the Chief Justice of Kenya, was admitted at Nairobi Hospital on 24th August, 1999. He came into hospital under the care of Dr. David Silverstein and had, at the time, a history of pain in the left knee and at the back of the neck. The doctors’ and nurses’ notes also recorded a brief post-medical history of resected aortic aneurysm which has recurred, on account of which the patient had been due for further review at the Mayo Clinic in the USA.

Early diagnosis recorded gout as the immediate source of complaint, and Dr. Silversteinprescribed medication which was administered. The doctor conducted a review the following day, 25th August, 1999, noting that the uric acid level was high. The patient was kept on the medication prescribed earlier (Olfen 2cc, Tramal100mg). Dr. Silverstein and Dr. Shabbir Hussein conducted a further review on the following day, on 26th August, 1999 and found the patient’s blood pressure to be low, at 80/60, and on this account took the decision not to give further medication until blood pressure had risen above 110.

On the following day the patient complained of nausea. Dr. Mbogoriwho was in attendance and communicating with Dr. Silverstein who was away, conducted the first complete review of the patient, finding that the patient was confused, though still obeying instructions. The patient’s pulses, blood pressure and heart sounded normal. After communicating with Dr. Silverstein, Dr. Mbogori prescribed distalgic (2 tabs), brogel and plasil. Checks on the central nervous system showed that the patient was resisting neck movements. Dr. Mbogori conducted checks on urea (raised – 14. 6; creatinine (raised – 121), and concluded that both indicated compromised Kidney function. He carried out a CT scan of the head, chest – x-ray and pelvic x-ay. At 11. 00 a.m. on 27th September, 1999 Dr. Mbogori observed that the patient was restless in the CT scan room. Valium 10mg had been given before CT scan, and the doctor ordered another 10mg of the same to be given subsequently. After CT scan the patient was admitted to the High Dependency Unit; he was restless and wheezing. Dr. Mbogori conducted a review of the patient at 2. 00 p.m.; and he was joined by Dr. Joshi at a further review at 2. 30 p.m. They found the patient restless and gave IV valium 10mg. Thereafter complete examination was conducted by Dr. Joshi, who diagonised that there was acute onset of cerebral and meningeal irritation in the patient who was 60 years old and was on anticoagulant therapy. Dr. Joshi ordered a repeat CT scan later; he reviewed the CT scan and saw no evidence of haemorrhage in the brain. He conducted an echocardiogram which showed aortic aneurysm. He decided to conduct a lumbar puncture, and this revealed CSF to have bacteria – pneumococci. On the basis of this diagnosis Dr. Musoke consulting with Dr. Mbogori, at 4. 30 p.m. started the patient on rocephin; and the reason for preferring rocephinwas that the nurse’s notes showed allergy to penicillin. At 6. 00 p.m. Dr. Mbogoriprescribed Valium10 mg, which was, at 8. 00 p.m., stopped and substituted with dormicum 15mg. Tube feeding was started and x-ray and CT scan conducted. The x-ray report showed a large heart and mitral value prosthesis in situ. From the CT scan a small left parietal infarct was observed.

The developments and findings of 27th September, 1999 were the subject of discussion by telephone, between Dr. Mbogori and Dr. Silverstein on 28th September, 1999 at 4. 30 a.m. In the process Dr. Silverstein instructed that vancomycin and dexamethasone be administered to the patient, and that the patient be admitted to the Intensive Care Unit. At that moment the patient was restless and was also given dormicum 7. 5mg IV. At 7. 30 a.m. Dr. Joshi and Dr. Musoke saw the patient at the ICU. The patient was on a breathing tube, though he was breathing on his own, and the tube was not connected to the machine. DrsJoshiand Musoke formed the impression that the patient had a chest infection or pulmonary oedema, and they put him on a ventilator and sedated him with dormicum several times. At 10. 00 a.m.Dr. Mbogorisaw the patient and gave lasix 40mg. At 11. 45 Dr. Muchuha found the patient to be hyperventilating and paralysed; he gave dormicum, and started the patient on tracrium infusion. At 1. 30 p.m. Dr. Silverstein, who was back at his clinic, saw the patient. He ordered a reduction on IV fluids and the continuation of steroids (dexamethasone); he discontinued vancomycin,and he ordered the patient catheterized, to monitor urine output. At 6. 35 p.m. the patient was reviewed by Dr. Mucuha who found his blood sugar high (22. 8mml/1) and started on infusion of insulin. He also noted a 1 heart-block, with consequent abnormal heart rhythm. Dr. Kabirucarried out a review of the patient at 3. 00a.m. on 29th August, 1999 and gave IV tramal and IV pasil. The patient continued withinsulininfusion. At 7. 30 a.m. on that day Dr. Silverstein who was out of Nairobi made inquiries, and at 11. 00 a.m. Dr. Joshiput the patient on ternomlin. At 2. 40 p.m. Dr. Mucuha who reviewed the patient noted arrthymias 1st degree heart block and low heart ratio, whereupon he promptly informed Dr. Mbogoriand Dr. Joshi.

At 1. 05 p.m. on 29th August, 1999 Dr. Joshi reviewed the patient, because of the low heart rate; and he advised in favour of start of ectropion and aspirate stomacil contents. Dr. Miwinzi also reviewed the patient. He found the patient too sedated for a proper neurological review; and he added phenytocin to the treatment. Dr. Silverstein inquired about the patient at 3. 00 p.m., and then at 4. 20 p.m. on that same day (29th August, 1999) he personally conducted a review of the patient. He suggested a repeat of the lumbar puncture and a reduction of ventolin and of paralysis and sedation, as well as the discontinuation of steroids in 48 hours’ time. At 5. 30p.m. Dr. Mucuha repeated the lumbar puncture and duly informed Dr. Silverstein. Dr. Mucuha prescribed dormicum 7. 5mg, and continued with tracrium infusion at 2. 5 mg per hour. Dr. Mucuha conducted further review at 6. 30 p.m., finding coarse crepitations on both sides of the chest and persistent bradycardia (low heart rate); this gave him the impression that the patient was experiencing respiratory failure. He gave fluids to increase urine output, and found evidence of persistent meningitis. He prescribed tube feeding with fresubin. Dr. Mucuha put the patient on insulin at the rate of 5. 1units per hour. The patient was on foley’s catheter but was passing minimal amounts of urine. Dr. Mucuha gave Lasix 20mg. At 8. 46 p.m. on that same day (29th August, 1999) Dr. Kabiru discussed the patient with Dr. Silverstein and Dr. Mbogori, following which Lasix 40mg was given, and fluids restricted to 500ml till 6. 00 a.m. the following day (30th August, 1999).

When Dr. Mbogorireviewed the patient at 12. 00 midnight on 29th August 1999 his pupils were unequal, and the doctor added vancomycin to the treatment. At 2. 30 a.m. on 30th August, 1999 a review by Dr. Kabirushowed a low heart rate, with the blood pressure not being recordable. Dr. Kabiru discussed the patient with Dr. Mbogori, who advised that dopamine be started. When a further review was done at 6. 00 a.m., oedema of both hands was noticed; blood sugar was high; urea was high; the patient was feverish. The patient was put on creatinine – to help in controlling the deteriorating kidney function. At 8. 10 a.m. Dr. Silverstein reviewed the patient and noted that he was off paralysis, and he was able to move his hands and feet. The patient was feverish and his pupils were unequal. He advised switch to assisted mode of ventilation. At 10. 00 a.m. Dr. Mwinzi conducted a review, but found the patient still too sedated to be suitable for a neurological assessment. Dr. Olaly did a further review at 11. 45 a.m. and found the patient to have a low heart rate; he informed Dr. Silverstein, who advised that penicillin be given in 6 units hourly. At 12. 30 p.m. Dr. Olaly conducted another review and found the heart rate still low, even though the patient was able to move his head and limbs spontaneously. At 2. 45 p.m. Dr. Mwinzi conducted further review, and noted the low heart rate. He advised start on mannitoland stopping of sedation. At 3. 15 p.m. Dr. Silversteinconducted another review; he also noted the heart rate and advised that atropine 1. 2 mg be given. Dr. Wekulo reviewed the patient at 9. 00 p.m.; he checked the blood sugar level and reduced the insulin. At 11. 00 p.m. Dr. Silverstein had a discussion with the patient’s son (also a doctor), and then started the patient on rifampicin.

Dr. Silversteinreviewed the patient at 7. 00 a.m. on 31st August, 1999 noting that his heart rate was still low. The doctor noted that the patient’s central nervous system was more alert now. He ordered a repeat lumbar puncture, and a discontinuation of tramal. Dr. Mwinzi carried out a thorough examination at 8. 45a.m. on that day, and noted that the patient appeared to be improving; and he ordered haemolytic screen. Dr. Mucuha carried out a lumbar puncture at 9. 30 a.m. on the same day; and the results showed few bacteria. When Dr. Mucuha did an ICU review at 4. 50 p.m., he noted that the patient was attempting to open his eyes, responding to deep pain. The patient had clear lung fields, and his own respiratory effort was fair. He had abnormal liver enzymes – low albumin, high enzyme level. At 3. 00 p.m. Dr. Silverstein conducted a review, and started the patient on human albumin. Dr. Wekulo reviewed the patient at 8. 30 p.m., and noted that he was passing some dark urine. The patient was opening his eyes and trying to speak.. Dr. Silverstein saw the patient at 9. 45 p.m.; noted the urine output, and made certain changes.

Dr. Silversteinconducted further review of the patient on 1st September 1999 at 7. 10 a.m. He noted that the patient was awake, had no fever, and obeyed commands. He had low serum albumin, and had grown puffy in the face. He decided to stop rifampicin and to give albumin. The doctor took the patient off the machine; he reduced dexamethasone, and gave walfarin 10 mg for a start. At 9. 00 a.m. Dr. Mwinziconducted a review, noting that the patient was off the ventilator; he was not hot; he was awake; he obeyed simple commands; he tended to drift back to sleep. The patient was restless when disturbed; he was jaundiced; he had full eye movements and was able to focus; his pupils were equal, and reacted to light. He had suspected weakness of the limbs on the left side, but his tendon jerks were symmetrical. The patient’s heart rate was now up, above 50 beats per minute. His blood pressure was normal, at 120/90 mmhg. His abdomen was tense and resonant. His liver function tests indicated hepatocellulor jaundice – probably drug-induced. He had a definite neurological improvement. At 11. 00 a.m. the patient was restless and complaining of abdominal discomfort.. Dr. Mucuha informed Dr. Silverstein, and ordered enema, tramal 100 mgV and plasil 10mg. Dr. Mucuha noted at 11. 30 a.m. that the patient was wheezing. He informed Dr. Silversteinwho ordered lasix 40 mg and stopped nasogastric feeding. At 1. 00 p.m. the patient was still restless; so Dr. Mucuha ordered buscopan 10mg IV. At 4. 00 p.m. Dr. Silversteinstarted lipovenous feeding (directly into the blood). Dr. Mucuhanoted at 6. 15 p.m., during ICU review, that the patient was stable off the ventilator, obeying commands, and was breathing well, though he had lung infection. It was noted that the patient’s abdonmen was distended and had severe pains Enema was successfully conducted.

Dr. Silversteinconducted a review of the patient at 7. 30a.m. on 2nd September, 1999. He noted that the patient was doing very well; he had no fever, and his white cells were high; he had good urine output; creatinine was low; he was sleepy but arousable; his sodium was high, but potassium low. The doctor took the decision to supplement potassium. He decided to defer extubation, but later, at 8. 50 a.m., he ordered removal of the breathing tube. Dr. Mwinzisaw the patient before extubation, and noted that the patient had no fever, less jaundice, was fully conscious though he tended to doze off from time to time. The patient was obeying commands and expressing appropriate emotion. The neurological examination was normal. Dr. Mwinzi started reducing steroids, hoping for progressive improvement. At 4. 15 p.. Dr. Mucuhaconducted a further review. He noted that the patient was stable off the ventilator. He was drowsy but promptly arousable, and was able to move all limbs on request, and had a heart rate of 72 beats/minute. He formed the impression that this was a scenario of resolving meningitis.

Dr. Silversteinreviewed the patient on 3rd September, 1999 at 8. 30 a.m. He noted that the patient was continuing to improve. The patient was talking intelligibly. He had good urine output, but his temperature was high. His white cell count was falling. The doctor took the decision to discontinue dexamathasome, and continued antibiotics. Dr. Silversteinthen left for Naivasha, and at 5. 00 p.m.. Dr. Wekulo reviewed the patient, noting that he was stable, blood gases were good, and he was responding adequately. At 6. 00 p.m. Drs Wekulo and Musau were contacted, as the patient was complaining of pain.Dr. Wekuloordered 50mg of tramal and 10mg of plasil IV; temperature was high; panadolwas prescribed and insulin ordered, at 10. 00 p.m.

Dr. Musaureviewed the patient at 8. 00 a.m. on 4th September, 1999 noting that he had improved, though his temperature was high. He gave warfarin 5mg and maintained some amount of fluids. Dr. Wekulo conducted a review at 12. 00 noon and found the patient drowsy, restless and using abdominal muscles for breathing. The patient was wheezing and had abdominal distension. Dr. Wekulo ordered abdominal x-ray. In a later review at 2. 00 p.m. Dr. Wekulo found the patient still restless and had bronchospasm. In another review at 4. 00 p.m. Dr. Wekulo noted rapid respiration, and he formed the impression that the patient had pulmonary oedema and septicaemia. Dr. Musau who reviewed the patient at 6. 00 p.m. noted the restlessness and the high fever. The patient had rapid respiration of 40 breathes/minute; he was wheezing; blood gases were normal; the abdomen was distended. Dr. Musaudiscussed this condition with Dr. Silverstein and it was agreed that a repeat lumbar puncture be done, and the patient be started on amikacin. The patient was intubated and put on ventilator. Lumbar puncture was done at 10. 00 p.m. by Dr. Wailuma. At 11. 00 p.m. the patient was experiencing nose bleeding.

On 5th September, 1999 Dr. Musaudiscussed on telephone with Dr. Silverstein the possibility of an echo process on the patient. This was agreed, and Dr. Joshi conducted the process. He also did a CT scan of the head, which showed a left posterior parietal hypodense infarct, though there was no haemorrhage. Dr. Joshidid a 2D echo, and this showed a ballcage prosthetic valve and aortic root aneurysm but no other abnormality. Dr. Musau then conducted a review and found that the patient’s temperature was still high, at 41°C; the patient was paralysed and sedated; heart rate was 80/min, and the chest was clear. A chest x-ray showed bilateral infiltration, which suggested pulmonary oedema. A decision was taken to wean the patient off paralysis and sedation; and Lasix20 mg was given.

Between 11. 00 a.m. and 1. 20 p.m. on 5th September, 1999 Dr. Musau noted a sudden onset of bradycardia. He gave Atropine, but there was no response. He then gave Epinephrine. But the patient went into ventricular fibrillation (irregular action of the heart). The patient was given DC shocks three times, after which he returned to normal rhythm. His blood pressure settled at 130/80. Dopamineinfusion was started, and arterial line inserted; 200ml bicarbonatewas given. ECG showed ST depression on lead V3-V6. The patient went into ventricular trachycardia and fibrillation and then asystole. Further resuscitation was unsuccessful. He was certified dead at 1. 20 p.m. on 5th September, 1999.

B. CARE AND STANDARDS IN THE MANAGEMENT AND TREATMENT OF THE LATE ZACCHEUS MUTSUNGA RICHARD CHESONI – COMPLAINT MADE BEFORE THE MEDICAL PRACTITIONERS AND DENTISTS BOARD (TRIBUNAL)

The death of Chief Justice Chesoni led to a complaint lodged before the Medical Practitioners and Dentists Board established under the Medical Practitioners and Dentists Act (Cap.252). On 25th January, 2000 the Registrar of the Board wrote to Dr. David Morton Silverstein as follows:

“On behalf of the Medical Practitioners and Dentists Board, take notice that in consequence of complaints made to this Board against you in respect of the care and standards applied in the management and treatment of the late Zaccheus Mutsunga Richard Chesoni during hospitalization at the Nairobi Hospital during the period from the 24th of August, 1999 to the 5th of September 1999 the preliminary inquiry committee after considering the complaints referred the matter to the Board.

“Accordingly an inquiry shall be held regarding the allegations of infamous conduct in a professional respect as set out in the following charges…………”

The charges in question were set out as follows:

Charge One:That you being registered as a Medical Practitioner under the Medical Practitioners and Dentists Act (hereinafter called the Act), the late Justice Z.R.M. Chesoni was admitted at Nairobi Hospital under your care. You failed to make appropriate diagnosis timeously or within reasonable time to facilitate appropriate treatment to be administered thereby endangering his life.

Charge Two: That you being registered as a Medical Practitioner under the said act failed to carry out a complete history and physical examination of the late Justice ZRM Chesoni and to co-ordinate treatment and carefully evaluate investigation and treatment given which led to inappropriate treatment.

Charge Three: That you being registered under the Act and having considered that the late Justice ZRM Chesoni was critically ill left the patient under the care of other medical personnel not suitably qualified and only kept telephone contact with the patient and those managing him with the result that the treatment of the patient fell short of what he was professionally entitled to expect.

Dr. Silverstein was by the Registrar’s letter invited to answer the three charges in writing, and also to appear in person before the Board, on 4th February, 2000.

The full Board tribunal thereafter conducted its hearings on 4th, 7th and 11th of February, 2000. The Board’s findings and its determination were as follows (communicated in the Board Chairman’s letter to Dr. Silverstein (Ref : MED/22/A/14) dated 18th February, 2000):

Charge One: That you being registered as a Medical Practitioner under the Medical Practitioners and Dentists Act (hereinafter called the Act), you made appropriate diagnosis timeously on treatment given to the late Justice Chesoni and that you made all effort to preserve his life.

Charge two: That you being registered as a Medical Practitioner under the said Act, you carried out history and appropriate physical examination of the late Justice Z.M Chesoni and evaluated investigations that led to appropriate treatment.

Charge Three: That you being registered as a Medical Practitioner under the Act and having the care of the late Justice Chesoni, you made appropriate arrangements for cover by suitably qualified medical personnel during your absence and his care did not fall short of whatever he was professionally entitled to.”

Aggrieved by the decisions reached by the Medical Practitioners and Dentists Board, a relative of the late Justice Chesoni, Atsango Chesoni filed on 10th March, 2000 a memorandum of appeal, dated 9th March, 2000. This memorandum, which led to the appeal which is the subject of this judgment, states as follows:-

(i) That, the Board erred in that it failed to find that the respondent, in whose care the late Justice Zaccheus Mutsunga Richard Chesoni was admitted at the Nairobi Hospital on 24th August, 1999 failed to make appropriate diagnosis in good and/or within a reasonable time thereby endangering his life;

(ii) That, the Board erred in that it failed to find that the respondent failed to carry out a complete history and physical examination of the late Chief Justice Chesoni and carefully evaluate investigation and treatment given to the late Justice Chesoni;

(iii) That, the Board erred in that it failed to find that the symptoms of Pneumococcal Meningitis were suppressed and/or masked due to treatment prescribed and/or given to the late Justice Chesoni;

(iv) That, the Board erred in that it failed to find that when the late Justice Chesoni was critically ill the respondent left him under the care of other medical personnel not suitably qualified, and as a result the treatment fell short of what he was professionally entitled to expect.

The appellant prayed that the decision of the Board be set aside; that the Board’s decision be varied by substituting therefor the finding that the respondent was guilty of infamous and/or disgraceful conduct in a professional respect; and that consequential orders be made against the respondent.

C. SUBMISSIONS MADE ON APPEAL

This appeal was heard before us on 31st January, 2005; 1st February, 2005; 2nd February, 2005; and 3rd February, 2005. On these occasions the appellant was represented by learned counsel, Mr. Adere assisted by Ms Lavuna; while the respondent was represented by Mr. Georgiadis, assisted by Mr. Gachui.

1. The Appellant’s Case

Learned counsel, Mr. Adere founded his submissions on negligence, and observed that the proceedings were of a quasi-criminal nature. Counsel submitted that the death of Justice Chesoni had come about partly due to disgraceful and infamous conduct on the part of Dr. Silverstein.“Infamous or disgraceful conduct in a professional respect” is defined in paragraph 2 of the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, Legal Notice No. 157 of 1979, made under the Medical Practitioners and Dentists Act (Cap. 253). It means –

“serious misconduct judged according to the rules, written or unwritten, which govern the medical and dental professions”.

We took note that learned counsel was constrained to rely, to sustain his submission, not so much on the record of proceedings of the Board at its meetings of 4th, 7th and 11th February 2000 as on the minutes of a preliminary inquiry committee which held its meeting in September and October, 1999. Present at the said preliminary inquiry committee which had prepared its minutes some four months prior to the Board’s tribunal meeting were five doctors. The earlier meeting had also been attended by a legal advisor, as well as an advocate of the Board.

Mr. Aderesubmitted that the preliminary inquiry committee would have had prima facie evidence against Dr. Silverstein, as otherwise a full tribunal inquiry before the Board would not have been warranted. This is the basic reasoning, we believe, which led to so much importance being attached by counsel to the preliminary inquiry, instead of him starting off from the proceedings before the sixteen-member Board.

The Medical Practitioners and Dentists (Disciplinary Proceedings)(Procedure) Rules (para.3) provide for a preliminary inquiry committee, the functions of which are set out in paragraph 4:

“The functions of the Preliminary Inquiry Committee shall be to receive and review complaints against a medical practitioner or dentist and to determine and report to the Board whether an inquiry should be held….”.

Relying on the report of the preliminary inquiry committee, learned counsel submitted that Dr. Silverstein had been guilty of delayed diagnosis. He contented that while admission of the patient had taken place on 24th August, 1999 there had been no examination conducted until 27th August, 1999, and that the medical history had not been taken until 30th August, 1999. It was urged also that the deceased had been admitted as a patient of Dr. Silverstein and no one else, and yet he had not himself personally carried out the examination. He questioned Dr. Silverstein’s proper basis for suspecting gout at the beginning when the patient had been admitted, and emphasized that such a suspicion had subsequently been proved wrong. Mr. Adere averred that Dr. Silverstein had for several days been treating the wrong ailment, because there had been no examination of the patient; and he attributed the finding of meningitis to Dr. Mbogori rather than to Dr. Silvestein.

Mr. Adere contended that in all cases in which there is a complaint of severe pain at the base of the neck, meningitis is the ailment to be suspected and nothing else. Counsel remarked some of the medical points made in the records of doctors, such as the high content of uric acid; and went on to argue that gout does not present in neck pain and that Dr. Silverstein ought to have been so guided. Counsel argued that gout rarely leads to admission, and the doctor had no business considering it as a possibility.

Mr. Adere averred that Dr. Silverstein had abandoned the patient; because while knowing on 27th August, 1999 that the health status of the patient was deteriorating, he did not immediately return to Nairobi, and only saw the patient on 28th August, 1999. He contested the propriety of Dr. Musau attending to the patient on 3rd September, 1999. In counsel’s words, “[Dr. Silverstein] left the patient in the hands of a less qualified person”. Counsel further questioned: “why was a physician not left in charge?”

From the record, however, those who attended the patient on 3rd September 1999 were: Dr. Silverstein himself (8. 30a.m.)(and he noted that “the patient continues to do well. Talking intelligibly. Good urine output”); Dr. Wekulo (at 2. 00 p.m., 5. 00 p.m.); Drs Wekulo and Musau (6. 00 p.m.); Dr. Wekulo (7. 30;10. 00 p.m.).

It is therefore not quite clear to us why 3rd September, 1999 has been marked by counsel as an eventful day in the medical history of the patient. It is equally unclear to us how the events of this particular day demonstrate professional failings byDr. Silverstein.

Mr. Adere had lengthy submissions to the effect that part of the negligence attributable to Dr. Silverstein is that he had not for sometime administered penicillin, which he ought to have done to save the life of the patient. To the averment that a notice (probably made by nurses) by the patient’s bed had stated “penicillin causes diarrhea”, learned counsel impugned apparent failure on the part of Dr. Silverstein to conduct an independent, personal verification of the content of that notice.

Mr. Adere had doubts about the qualification of the doctors who attended to the patient in the absence of Dr. Silverstein. He was not sure of the qualifications of Dr. Musau and Dr. Mbogori, and would dismiss Dr. Joshi as a cardiac specialist and not a physician; he seems to be of the view that the patient’s ailments primarily required a physician. It was also apparent that counsel saw no merits at all in the team-work arrangement under which the patient had been managed; he would wish Dr. Silverstein to be by the bedside and to do the job most of the time; and in his absence he should only have considered leaving a more senior colleague, preferably Dr. Majid Warshow, to be by the patient’s bedside. In counsel’s reckoning, Dr. Silverstein failed in this regard and so should be found guilty of infamous and disgraceful conduct. In counsel’s words: “When I go to a doctor, I go to a particular doctor”. Clearly, counsel was not impressed by the several doctors of different areas of special medical expertise co-operating in the management of the patient. He would much rather have just Dr. Silverstein ministering to the patient, from beginning to end. In the words of learned counsel:

“A doctor should apply all things in his power to save life. [Dr. Silverstein] should have been there whenever [the patient] was [deteriorating]. He left others taking care. He was generally absent. He was giving instructions by telephone. His presence would have shown his commitment to his patient. He committed infamous conduct, by being absent when he ought to have been present. He was late [in diagnosing]. He did not give proper medication. He abandoned his patient”.

This, we believe, is the condensed statement of the applicant’s case, and it will be at the core of our final assessment which will determine the instant appeal, one way or the other.

The same points were developed in Mr. Adere’s further submissions. The weight of the appellant’s case is depicted in the words of counsel, which may still be quoted:

“The doctor may leave another doctor [handling his patient]; but that other doctor must be of the same standing. Dr. Silverstein’s partner then was Dr. Warshow; so it would have been expected that Dr. Warshow would stand in for him”.

Mr. Adere contended that Dr. Mbogori, one of the doctors who had attended to the patient, was not properly qualified and it was unprofessional for him to be given that role by Dr. Silverstein. However, Dr. Mbogori clearly stated his qualifications as a doctor, when he appeared before the Medical Board on 11th February, 2000. He thus stated (and we have seen no reason to doubt the veracity of this):

“I graduated with an M.B.Ch.B (Bachelor of Medicine and Bachelor of Surgery) from the University of Nairobi, 1990 and thereafter, I did internship at Kenyatta National Hospital, completed that and worked at the Kiambu District Hospital for a period of six months; I thereafter joined Aga Khan Hospital as a resident in the department of medicine and worked in the Intensive care Unit for two years; I was transferred from Aga Khan Hospital Intensive Care Unit to Nairobi for a further two years; and after that I joined the practice of Dr. Warshow and Dr. Silverstein, and there I have been working mainly in Intensive care and Internal Medicine.”

We noted that the important statement of Dr. Mbogori set out above was entirely overlooked by learned counsel, who preferred instead to impugn the doctor on the basis of his modest response to a rather invasive question : “what do you call yourself an expert in”? The doctor had responded : “I do not call myself an expert because none of this was formal training [leading to] certification; mine is a lot more of hands-on experience in those various areas.”

Mr. Adere contended that it was professionally a failing on the part of Dr. Silverstein, that diagnosis had not been promptly conducted when the patient had been admitted, on 24th August, 1999. In counsel’s words:

“I expect diagnosis to be done on the day [I am admitted in] hospital. This was not done, when [there existed] a preponderance of evidence”.

Counsel later also remarked:

“He got the diagnosis wrong. This was disgraceful. Doctors do not necessarily get it right. But for a doctor to come to conclude it was gout, was infamous conduct. Gout is such a common disease; even laymen know when there is gout”.

Mr. Adere concluded by recalling the remarks of some of the members of the Medical Practitioners and Dentists’ Board which he urged, further buttressed the charge of professional failing and infamous conduct on the part of Dr. Silverstein. However, we think such individual remarks by themselves, would not prove a case, especially where, as in the instant case, the Board as a collective entity reaches a verdict that is at variance with remarks made by some individual members.

Learned Counsel submitted that the Board had reached a wrong decision, probably on account of the fact that the case before it was in respect of one of its members. Counsel maintained that evidence of abandonment by Dr. Silverstein was overwhelming, and this was tantamount to infamous conduct, which justified the appeal being upheld.

2. The Respondent’s Case

Learned Counsel, Mr. Georgiadis set out by submitting that Mr. Adere had not relied on the proceedings before the Board, as a whole, to show any content therein that did not reasonably lead to the decision there taken. He submitted that the appellant had not discharged the burden of showing where the doctors attending the late Justice Chesoni had gone wrong, and that this burden could not be discharged without submissions on the relevant medical issues.

Mr. Georgiadis began examining the merits of the appeal by considering the manner of laying the complaint and of lodging the appeal. He remarked that although the appellant, who is a daughter of the late Justice Chesoni, could properly move the court as she may desire, it was nonetheless relevant to her credibility what methods she used to establish her case. She had called a cousin, a doctor by qualification, but whose certificate of practice in Kenya had lapsed, to move the claim forward. Counsel stated that the said cousin of the appellant was not seized of the pertinent facts when he had opened a burst of accusations against the respondent. Mr. Georgiadisstated that the said cousin of the appellant, a Dr. Matseshe, though not formally featuring in the professional matters which were brought before the Medical Practitioner sand Dentists Board in February 2000, had been the one who, by his clamorous revendications during public social occasions associated with the funeral of Mr. Justice Chesoni, occasioned the Preliminary Inquiry held in October, 1999 and the report of which came before the Board in February, 2000. The Preliminary Inquiry, counsel averred, had not been occasioned by any formal complaint either from Dr. Matseshe or from the appellant; and the formal complaint was only made after the Preliminary Inquiry report, in which Dr. Silverstein had been the subject of accusation. Counsel considered Dr. Matseshe’s views, which he had prepared in typescript and circulated to the press, to have been outrageous, considering in particular that they had not been expressed after consultation with any member of the team of doctors who had attended to Mr. Justice Chesoni before his death. Dr. John Wanyama Matseshe put up a long paid-for advertiser’s announcement in the Daily Nation of 16th September, 1999. This included in full his own speech at the funeral service, attended by among others the President and Vice-President of Kenya, as well as his address at a press conference which he held at Hotel Intercontinental, Nairobi on 13th September, 1999. Part of Dr. Matseshe’s claims may be set out here:

“We believe that if the late CJ Chesoni was a CJ of the USA, and Dr. Silverstein had been his physician, Dr. Silverstein would not have behaved the way he did during C.J Chesoni’s illness”.

Dr. Matseshe also remarked and published his remarks as follows:

“….. when Dr. Silverstein made a diagnosis of gout because of pain in the left knee, how could he explain the fact that the CJ was having pain in the left hip, in the back and in the neck? Moreover, on Thursday when the CJ’s blood pressure suddenly dropped, why did Dr. Silverstein not think of overwhelming infection including meningitis as a possible cause of the low blood pressure?”

There are many remarks of a similar kind, which might suggest that what ailed the late Justice Chesoni was ever so plain to the professional mind, and Dr. Matseshe and his family knew it all along; and only Dr. Silverstein would not see the obvious.

Mr. Georgiadis noted that Dr. Matseshe had been the only witness before the Medical Practitioners and Dentists Board, and that he had not been forthright in answering questions regarding some of the claims which he had made. When asked whether he had made certain allegations in the press, Dr. Matseshe had responded:

“Counsel, you are aware the press can say all kinds of things whether or not I have spoken to the press…….”.

Dr. Matseshe was asked the question : “[Can] you define a doctor’s working hours……? Do you expect a doctor to be twenty-four hours at the beside of his patient, seven days a week, four weeks in the month, do you expect that?” His answer is reported in the proceedings as “No”. He was then asked : “Would you concede as a doctor that if you did work hard, unless you take some time off, you are in fact endangering your patient or patients?” Dr. Matseshe’s answer was “I do”. He was then asked : “Are you aware that under your Code of Conduct and Professional Discipline, both in Kenya and in the UK – and I have not the slightest doubt, also in the United States – you make arrangements with other professionals and colleagues to look after a patient while you are away?” Dr. Matseshe answered :”I am aware”.

Dr. Matseshe’s involvement with the press in relation to the illness and subsequent death of Mr. Justice Chesoni was also put to him at the Board session. The question was:

“Apart from the various press statements, did you pay a great deal of money to have one-and-a-half pages of the Nation Newspaper published and printed on 16th September……. Did you pay for that advertisement to appear in the press?”

Dr. Matseshe’s answer was : “I did”. To further questions, Dr. Matseshe admitted that he had had no access to the files of Dr. Silverstein or of the nurses when he published his claims. He also said he had had no access to the doctors working with Dr. Silverstein before he published his allegations. Dr. Matseshe also said, in relation to the late Justice Chesoni : “I did have knowledge of his history; I did not have [any particular] information about this illness.”

Such acknowledged lack of information before Dr. Matseshe published his claims, led counsel cross-examining to put to him the following question:

“….. with this lack of information, on what medical basis other than emotion, did you have to appear in public at a eulogy, with the President there, all the Ministers, friends and so on, to make these accusations at [the] funeral?”

Dr. Matseshe responded:

“…. I have had medical training…. Unlike you, I sat day in, day out as a relative watching my cousin. I have to remind you, I did not shut my medical cap ……….I made medical observations; I talked to my colleagues, including Dr. Silverstein; he gave me medical data ….; he told me about penicillin …. My colleagues told me that the Chief Justice came into hospital for…… It is on that basis that I made my statements. I made the statements not as a relative who just happened to have the tools of medical knowledge …… I repeat, I made it as an ordinary Kenyan civilian who just happened to have the tools of medical knowledge…..”

Dr. Matseshetestified that after his newspaper advertisements concerning the death of Justice Chesoni, he lodged no complaint before the Medical Practitioners and Dentists Board. He never lodged any such complaint at any other time. He said he also never sent a letter of complaint to Dr. Silverstein, and he has never done so to-date.

Before the Board, counsel for the respondent had summarized to Dr. Matseshe the chronology of treatment which had been accorded the patient, and had asked the question: “Where is the delayed diagnosis and where is wrong treatment by not giving penicillin?” Dr. Matseshe answered as follows:

“……I repeat … I did not expect Dr. Silverstein to know that the Chief Justice had bacterial meningitis. What I did expect …[is] that the physician should do the normal things … in the search for what may be wrong. I never said that Dr. Silverstein should have seen the Chief Justice and [straightaway concluded that he] had meningitis…….”

On the subject of gout, which had at first been suspected when Justice Chesoni had been admitted, the respondent’s counsel put the following question to Dr. Matseshe:

“Are you surprised to hear that the patient had gout previously, as part of his history?”

The answer was : “No, I am not surprised”.

When it was put to Dr. Matseshe that Dr. Mark Joshi, one of the doctors who attended to Justice Chesoni, is “a very competent and experienced cardiac consultant”, he responded: “I am aware of that”. Dr. Matseshe said he had already met Dr. Joshi at the hospital before he published his Daily Nation advertiser’s announcement of 16th September, 1999. Dr. Matseshe was then asked:

“Did you know, or were you aware that the function of the group practice of Dr. Silverstein is to double-cover their patients whenever possible, due to the nature of the diseases that they treat…….?”

The answer was : “No, I did not.” He was also asked:

“And Dr. Mbogori, who is highly trained in Intensive Care Unit and works as a Senior Registrar was or would be physically available at the hospital almost at all times…. Did you know that before you went public?”

Dr. Matseshe’s answer was : “I do not know about Dr. Silverstein’s arrangement with his associates”. He had to add : “I did not know”. Dr. Matseshe was also not aware of the standing arrangement that in the absence of Dr. Silverstein, Dr. Mbogori is to call Dr. Joshi who would be the consultant-in-charge. When Dr. Matseshe was asked whether, in a large practice such as that of Dr. Silverstein, it was not essential that there be mutual confidence among the members of the professional team, his answer was a laconic one : “…. Confidence does not equate with training”.

Dr. Matseshe was asked whether he still thought that Dr. Silverstein had abandoned his patient. The answer was:

“Yes, because he left without any arrangements to investigate what [the patient] was disturbed about, namely low blood pressure. There is nothing in the record to show that he made any attempt to investigate that.”

When the question was put to Dr. Matseshe as to whether he was aware that Dr. Luke Musau was a highly trained and qualified consultant and anesthesiologist, specialized in Intensive Care Unit over the last eight years, he said he was unaware.

The following question was put to Dr. Matseshe : “Is it mandatory in medical practice that once you accept, once you have a contract and agreement… to treat a patient whether he be King or pauper from a village, you do your best at all times?” His answer was : “Absolutely; what you do not do is you should not leave any patient and go on a vacation – in the hands of people who are not trained…..”

Dr. Matseshe, however, appeared not to know the doctors working with Dr. Silverstein very well; indeed, he admitted as much, even thought he repeatedly ascribed to these doctors a generic charge of being “not trained”. It was not clear what that meant; and Dr. Matseshe made no attempt to explain it.

Although Dr. Matseshe, responding to a question by counsel, averred that he did not have a chip on his shoulder, in his mode of involvement in the controversy in the instant matter, he did make a statement before the Board which we think, shows a deportment that is curiously touchy:

“… what I implied was that the Chief Justice was a public servant, just the same as the President of this Republic is a public servant; you do not leave a public servant on that stretcher and you go to enjoy a holiday, when he is dying….. I will tell you that ……”.

Dr. Matseshe went on to say:

“….. there is no…. remorsefulness on your part…., and that is what to me is most offensive. I cannot just sit here being told that I made some offensive remarks when it was more offensive to leave a Chief Justice dying when you are enjoying [yourself] in Naivasha.”

When records were placed before Dr. Matseshe showing that the late Justice Chesoni had been a patient of Dr. Silverstein since 1977 and that he was suffering from aneurysm of the aorta since that time, he said he was aware of it. In a letter of 1991, Dr. Silverstein had indicated that on further examination, he had found that Mr. Justice Chesoni had a “recurrence of his aneurysm of the aorta”; and he stated: “This will require surgical intervention. I have asked him to go to Mayo Clinic as soon as possible for an assessment and the arrangements to be made for surgical resection”. This letter had been sent to Dr. Matseshe and he was well aware of it. Justice Chesoni, however, did not visit Mayo Clinic for the surgical operation as advised; and so he remained with this health problem until his death. When counsel put it to Dr. Matseshe that Justice Chesoni’s aortic aneurysm had, at the last assessment, enlarged to the size of 8cms, he said he did not know about it.

Learned counsel, Mr. Georgiadis submitted before this Court that it was not possible to say with certainty what caused the death of Mr. Justice Chesoni. He stated that the respondent’s plea that a postmortem examination be carried out had been refused by members of the late Chesoni’s family. Counsel averred that Dr. Matseshe had been well aware that the late Justice Chesoni had a ballooning of one of the aorta, and that this had been monitored regularly by Dr. Silverstein. He submitted that this important element in Chesoni’s medical history had not been taken into account when charges had been framed against Dr. Silverstein. Counsel submitted that it was quite possible that Justice Chesoni had not died of bacterial meningitis as was generally thought byDr. Matsesheand members of the Chesonifamily. On this account, counsel submitted, the fact of Chesoni’s death could not corroborate any of the charges, which had been laid at the Board’s tribunal, against Dr. Silverstein. Counsel averred that Dr. Matseshe’s position on postmortem was notorious : he had said even during Chesoni’s funeral, that the deceased had died of bacterial meningitis and there was no need at all for a postmortem. Yet, counsel submitted, the evidence shows that the deceased was indeed in the process of recovering from bacterial meningitis; so, only a postmortem could have shown what caused his death.

Mr. Georgiadissubmitted that since proceedings such as those taken before the Medical Practitioners and Dentists Board were, by virtue of the Medical Practitioners and Dentists Act (Cap.253) and the Medical Practitioners and Dentists (Disciplinary Proceedings)(Procedure) Rules (L.N 157 of 1979), quasi-criminal, there was a substantial onus of proof resting upon the appellant – and that the same had not been discharged. An obligation, it was urged, had been placed on the Board to evaluate all the medical evidence, and then make a finding. Counsel submitted that the appellant had failed to discharge the high burden of proof, “proof almost beyond reasonable doubt”, in the quasi-criminal proceedings taken before the Medical Practitioners and Dentists Board.

Mr. Georgiadis observed that whereas the applicable Code of Professional Conduct and Discipline required that the conduct of a Preliminary Inquiry Committee such as the one in the instant matter, should be conducted in private, this rule was not observed by the Committee which conducted proceedings in September and October, 1999.

Mr. Georgiadis made submissions based on the Code of Professional Conduct and Discipline 3rd ed. (1979), which governs the conduct of medical practitioners and is issued by the Medical Practitioners and Dentists Board. Among the provisions he cited in support of the respondent’s position were the following:

(i) Chapter IV, Section II (a)(i) whereby an obligation is placed on a medical practitioner when he is not available, of “making alternative arrangements for patients to be attended to”.

(ii) Chapter IV, which relates to “Improper Attempts to Profit (Advertising, Canvassing and Related Professional Offences)”. Under this head appears a passage that stands out as a direct challenge to the spate of publicity which Dr. Matseshe did originate and which clearly denigrated Dr. Silversteinas a professional man. The passage reads:

“These offences may be committed at the expense of professional colleagues by canvassing for patients, advertising or by taking advantage of the depreciation of the professional skill or ability of another practitioner. Practitioners should avoid doing anything which may be interpreted as an attempt to attract patients to themselves or denigrate the reputation of colleagues.”

(iii) Chapter IV(1)(b) carries the following passage:

“Any publicity by or on behalf of or condoned by a practitioner which has as its objectives the personal advertisement of the doctor or dentist is highly undesirable and unethical.”

(iv) Chapter IV(2) is concerned with canvassing and[(a) thereof] “depreciation of doctors or dentists”. It thus states:

“(i) It is unethical to talk in a derogatory manner about the professional skills, knowledge, qualification or services of another doctor or dentist.”

When Mr. Georgiadis brought up these professional points to impugn the conduct of Dr. Matseshe and to show his lapses of integrity in the rather unrestrained attacks which he had launched, and which appear to have been the proximate cause of the instant proceedings, learned counsel, Mr. Adere interrupted to remark: “Dr. Matseshe is now irrelevant, as he is out of the picture”. To this remark Mr. Georgiadis responded : “Dr. Matseshe was attacking the credibility of doctors”.

Learned Counsel for the respondent submitted that the Preliminary Inquiry Committee which conducted its proceedings in September and October, 1999 and by whose minutes the applicant did set store, fell short of the test of the required proof at this stage. This submission was based on comparative material from the United Kingdom, the General Medical Council’s document entitled Professional Conduct and Discipline : Fitness to Practice, which document carried principles quite in keeping with the terms of the regulations applicable in Kenya. In the 1981 edition of that document. Under “Inquiries before the Professional Conduct Committee”, the said document governing the British Medical profession thus states:

“… proceedings in cases [where a doctor has already been convicted] are concerned only to establish the gravity of the offence and to take due account of any mitigating circumstances. In cases of conduct however the allegations, unless admitted by the doctor, must be strictly proved by evidence, and the doctor is free to dispute and rebut the evidence called. If the facts alleged in a conduct charge are found by the committee to have been proved, the Committee must subsequently determine whether, in relation to those facts, the doctor has been guilty of serious professional misconduct. Before taking a final decision the Committee invites the doctor or his legal representative to call attention to any mitigating circumstances and to produce testimonials or other evidence as to character…….

“The primary concerns of the Professional Conduct Committee are to protect the public and to uphold the reputation of the medical profession. Subject, however, to these overriding considerations, the Committee will consider what is in the best interests of the doctor himself.”

It is further stated that the inquiry must be, at that stage, conducted quasi-judicially:

“In discharging their respective duties the Preliminary Proceedings Committee on Professional Conduct must proceed as judicial bodies. Only after considering the evidence in each case can these committees determine the gravity of a conviction or decide whether a doctor’s behaviour amounts to serious professional misconduct.”

Learned counsel seriously doubted whether any proof at all had been placed before the Medical Practitioners and Dentists Board, as the only testimony the Board had received was that of Dr. Matseshe which was faulty in fundamental respects.

Mr. Georgiadis contested Dr. Matseshe’s attempts in his evidence before the Board, to show that there was a better mode of diagnosis on the patient, than that which the doctors entrusted with the care of the patient had undertaken. Again counsel relied, for this proposition, on the rules of the British General Medical Council. The relevant passage thus reads:

“In considering complaints or information about the conduct of a doctor the Council is not ordinarily concerned with errors in diagnosis or treatment. But in pursuance of its primary duty to protect the public the council may institute disciplinary proceedings when a doctor appears seriously to have disregarded or neglected his professional duties to his patients, for example by failing to visit or to provide or arrange treatment for a patient when necessary.”

Arranging requisite treatment is considered to incorporate the delegation of duties of giving medical care. In this regard it is thus stated in the said British General Medical Council Rules:

“The Council recognizes and welcomes the growing contribution made to health care by nurses and other persons who have been trained to perform specialized functions, and it has no desire either to restrain the delegation to such persons of treatment or procedures falling within the proper scope of their skills or to hamper the training of medical and other health students. But a doctor who delegates treatment or other procedures must be satisfied that the person to whom they are delegated is competent to carry them out. It is also important that the doctor should retain ultimate responsibility for the management of his patients because only the doctor has received the necessary training to undertake this responsibility.”

Mr. Georgiadis submitted that all doctors do, from time to time, delegate activities of medical care for a patient, to other doctors or other health profession workers, and that this was quite legitimate under the governing professional requirements. He disputed the propriety of depreciatory allegations made by Dr. Matseshe against the doctors who had worked as part of Dr. Silverstein’s team in providing care to the late Justice Chesoni. He cited as an example, Dr. Joshi as an expert doctor and a distinguished consultant, an internal medicine doctor of outstanding stature; Dr. Musau as an ICU doctor preferred by most doctors including those on the tribunal of the Medical Practitioners and Dentists Board.

Learned Council submitted that Dr. Matseshe had failed to place any cogent evidence before the Board; that he had formed general impressions unrelated to medical science or the clinical process of treatment and care for the late Justice Chesoni; and that he had disseminated his unfounded impressions in mass-circulation newspapers in a manner so tendentious as to justify inferences of malice. In these circumstances, counsel submitted, it was hardly surprising that charges No.1 and 3 brought against Dr. Sliverstein (i.e., regarding the propriety of the diagnosis done; and regarding delegation of health-care tasks) were dismissed by the majority decision of the Board; and on the second charge (i.e., regarding the degree of care in evaluation and treatment), the Board unanimously exonerated Dr. Silverstein.

Learned counsel impugned the Preliminary Inquiry report, the document which may be said to be the anchorage of the instant appeal. Some of the members of the Preliminary Inquiry Committee who had produced a report generally condemnatory of the respondent, also sat on the Board’s tribunal; and counsel considered this to have been improper. Yet even with that defect of procedure, Mr. Georgiadis submitted, the somewhat perfunctory report of the Preliminary Inquiry Committee had not convinced the Board when it took full proceedings and arrived at its verdict. Learned counsel was also concerned by the fact that the Preliminary Inquiry Committee Report, which ought to have enjoyed privacy, had been leaked to the press – to the considerable detriment of Dr. Silverstein who had no opportunity to reply in public.

Mr. Georgiadis submitted that Dr. Matseshe’s evidence had failed to stand the test of cross-examination at the Board, and should be entirely disregarded. Dr. Matseshe had not been in the country when the late Justice Chesoni was taken ill and was hospitalized. He landed in Nairobi several days after hospitalization; he had no access to the medical files and notes, nor to the doctors who worked with Dr. Silverstein. The moment the patient died, counsel recalled, Dr. Matseshe quickly launched into allegations published for public readership, which were not based on evidence but which were grossly defamatory of the respondent as a professional man. Dr. Matseshe had made no written or oral complaint to the Medical Practitioners and Dentists Board, but he did know of the existence of the Medical Practitioners and Dentists Act (Cap. 252). Dr. Matseshe also made no complaint to the respondent. Counsel stated that Dr. Matseshe had known well that, for some 27 years, the deceased had been the patient of Dr. Silverstein who had all through accorded him heart valve treatment; and he did know that some 17 years ago the deceased was growing an aneurysm in the aorta. Counsel observed that in spite of Dr. Matseshe’s full knowledge of the late Justice Chesoni’sillness, and the fact that he had for over 10 years been due for an operation in the United States, at the Mayo Clinic, he claimed not to have known that Justice Chesoni had missed out that vital aortic surgery. Counsel submitted that Dr. Matseshe as a medical practitioner in the USA, “ought to have known the mortality rates after a large growth, of some six centimetres, had taken place in a patient who was older than 50 years”.

Mr. Georgiadiswondered just how the true cause of death could be determined without a post-mortem examination being conducted. Was the death related to aneurysm, or something else? Was the death on account of bacterial meningitis? What could Dr. Silverstein personally have done at a time when the deceased was in the Intensive Care Unit and was properly in the hands of a recognized expert anaesthesiologist?

Learned counsel submitted that the proceedings before the Preliminary Inquiry Committee, which may be regarded as the foundation of the instant appeal, were biased: the Committee failed to accord Dr. Sliverstein a hearing, but it went ahead to place the matter before the Board for sanctions to be applied against the respondent, on allegations of professional malpractice. When the Preliminary Inquiry Committee report was, as counsel submitted, leaked to the press, there was immediately a media condemnation of the respondent. Counsel’s protests about the composition of the Board when the matter came before it, were not accommodated and no ruling was made thereupon.

Counsel identified yet another failing, in the proceedings before the Board. There was a strict onus of proof resting upon the complainant, but this direction was not given. He wondered whether there was anyone to give the strict proof required under the law. The ostensible complainant was, it appeared, Dr. Matseshe, though he had made no formal complaint. So, who was to call evidence to provide the strict proof? Since there was nobody to provide the required proof, counsel submitted, the Board’s legal assessor took the matter into his own hands, and he then articulated points which he placed before the members of the Board, to enable them to draw conclusions therefrom. This unusual procedure, counsel submitted, led the legal assessor to proceed as if he was playing an adversarial role, in a criminal matter. He directed his own conclusions to the Board’s tribunal, and asked the Board to disregard the submissions made by counsel for the respondent. Learned counsel for the respondent had then drawn the Board’s attention to the fact that it was sitting in a quasi-criminal capacity and ought not to disregard the submissions made for the respondent. A legal assessor, Mr. Georgiadis submitted, should sit in and only respond to legal questions; and the members of the tribunal themselves should be responsible for decision-making.

Learned counsel noted that the Board had, in the end, properly directed itself, and come to the conclusion that none of the accusations could stand.

Mr. Georgiadis submitted that the attempts to impugn the methods of diagnosis of ailment applied by Dr. Silverstein and his team of doctors, had no basis in law. Diagnosis and treatment are regulated by the special observations of doctors, being guided by medical-science choices, and any contest to such choices had to be within the framework of the substantive civil law, rather than of quasi-criminal proceedings related to malpractice.

Learned counsel disputed the honesty or propriety of Dr. Matseshe’s allegations regarding Dr. Silverstein’s early impressions that gout might have been the immediate complaint of the late Justice Chesoni. For the deceased did indeed have a history of gout; and besides, gout can afflict all joints, including the knees.

Mr. Georgiadis questioned the bona fides of the appellant’s case, in view of the fact that the only evidence that had been placed before the Board by the legal assessor was Dr. Matseshe and his views and perceptions. The appellant herein, who is a lawyer by training, had been present during the Board proceedings, but had had precious little to say in relation to the three charges which were the subject of those proceedings, and which are now the basis of appeal. Counsel stated that there had been no proper questions which, at the Board, could be put to the appellant; for “the charges relate strictly to medical matters, and evaluation cannot very well be conducted except by medical persons.”

Mr. Georgiadis questioned the merits of the submissions emanating from counsel for the appellant : the said submissions, in the words of Mr. Georgiadis, “were only his own views on medical matters; they cannot be considered authoritative in any manner whatsoever”. Learned counsel contended that the appellant’s counsel, Mr. Adere, “had not shown any grounds upon which the tribunal could be faulted for not having dealt medically with one matter or another”; and the Board had dealt with all the questions before it – delaying diagnosis, inappropriate treatment, abandonment; and only the Board was able properly to deal with such matters.

Mr. Georgiadis adverted to the disease known as bacterial meningitis, which has stood out as the anchorage of the appellant’s gravamen. That nomenclature is defined in Harrison’s Principles of Internal Medicine, 14th ed (1998)(at p.2419):

“Bacterial meningitis may be defined as an inflammatory response to bacterial infection of the pia-arachnoid and the cerebrospinal fluid (CSF) of the subarachnoid space. Since the subarachnoid space is continuous over the brain, spinal cord, and optic nerves, infection in this space extends throughout the cerebrospinal axis unless there is obstruction of the subarachnoid space. Ventriculitis is nearly uniformly present in patients with bacterial meningitis.”

The appropriate therapy for the disease is stated in another work, Practical Therapeutics (pp 843 – 844):

“From these observations and because sufficient CSF concentrations are difficult to achieve with standard high parental doses, penicillin is no longer indicated as empirical therapy when S.pneumoniae is considered a likely pathogen in patients with purulent meningitis.

“In areas in which relatively resistant strains are found, a third generation cephalosporin (ceftriaxone or cefotaxime) should be used. If a highly resistant strain is suspected or isolated, vancomycin is the recommended drug of choice.

“Some investigations have also recommended the addition of rifampicin to vancomycin for therapy of pneumococcal meningitis caused by highly resistant strains, although there are no clinical data to support this recommendation. In addition, pneumococcal strains are now emerging that are resistant to the third generation cephalosporins, indicating the need to consider including vancomycin in any empirical therapeutic regimen whenever preumococcal meningitis is suspected”.

We note that the methods of treatment for pneumococcal meningitis described above are the very ones that Dr. Silverstein and his team of doctors had applied on the late Mr. Justice Chesoni, as shown in the chronology set out at the beginning of this judgment. This would justify the submission by Mr. Georgiadis that : “There was ample evidence before the Board that the best mode of treatment was adopted.” Counsel further remarked that “the respondent was acquitted 100% on that charge”.

On methods of diagnosis, learned counsel placed before the Court excerpts from the medical journal, Infectious Diseases in Clinical Practice, Vol. 4 No. 6; and the following passage was relied on (p.425):

“Although the standard for microbial diagnosis of bacterial meningitis remains the cerebrospinal fluid (CSF) culture, the delay in making a diagnosis with this method has led researchers to attempt to develop alternative rapid diagnostic tools. CSF gram stain, although available for evaluation immediately, has a sensitivity of up to 80% overall and is much less sensitive for meningitis caused by gram-negative bacilli or listeria monocytogenes. In addition, the sensitivities of CSF gram stain and culture are reduced by prior antibiotic use.”

The essential point being made by Mr. Georgiadishere, as we understand it, is that medically, there was not just one single, appropriate response to presentations of bacterial meningitis; the correct approach was for the doctor in charge of a patient to use his best judgment and to determine the best mode of treatment; the answer was not automatic prescription of penicillin as Dr. Matseshe claimed ought to have been done. It is thus stated in the medical journal above-quoted (p.426):

“Another change in recommendations for empiric therapy may be required. There have been increasing numbers of reports of strains of S.pneumoniae that have intermediate-or-high-level resistance to penicillin…..”

From that recognition, the learned authors of the article, “Clinically Important Trends in Bacterial Meningitis”, published in the said journal, Infectious Diseases in Clinical Practice, Vol.4 No.6(1995) have proceeded to write (p.427):

“Importantly, these data also suggest that a change may be necessary in recommendations for empiric therapy for meningitis in older children and in adults and others who are at high risk for pneumococcal disease, e.g. individuals who have undergone splenectomies. It would now be reasonable to use a third-generation cephalosporin rather than penicillin G or ampicillin as empiric therapy for these individuals. If pneumococci are identified by CSF gram stain or culture, these antimicrobial agents should be continued until susceptibility results are known; only patients with strains that have MICs less than Q1mg/ml should be treated with penicillin G. Vancomycin, possibly with the addition of rifampin, should be used for treatment of meningitis caused by strains that are resistant to third-generation cephalosporins, which may also be likely to demonstrate high-level penicillin-resistance.”

Mr. Georgiadissubmitted that Dr. Silverstein was completely corroborated in the course of treatment that he administered upon the patient.

Learned counsel, Mr. Georgiadis further submitted that Dr. Matsesheif he had genuinely understood the presentations of bacterial meningitis, would not have presumed to impugn the actions taken by Dr. Silverstein in relation to the patient. The symptoms of that disease are recognized by medical scientists (and counsel quoted from an extract from the Journal of Infections Diseases [JAMA], July 14, 1999, Vol. 282 No.2):

“The classic clinical presentation of acute meningitis is the triad of fever, neck stiffness, and an altered mental state. However, less than two-thirds of patients present with all 3 clinical findings. While taking the patient’s history, clinicians suspecting meningitis will examine for general symptoms of infection (such as fever, chills, and myalgias), as well as symptoms suggesting central nervous system infection (photophobia, headache, nausea and vomiting, focal neurologic symptoms, or changes in mental status).”

Some patients are, thus, asymptomatic; and Mr. Georgiadis submitted that the recorded medical evidence, supported by the clinical notes of the respondent, showed that the late Justice Chesoni was an asymptomatic patient; he did not display the typical meningitis signs until the third day of hospitalization. The patient did not show the trilogy of clinical scenarios; and for that reason no good doctor would at the very beginning, have invaded the patient’s spine with the lumbar puncture. Learned counsel submitted that this was the medical reason why the Medical and Dentists Board had quite properly found, by a clear majority, that diagnosis upon the patient had not been delayed as claimed by Dr. Matseshe. The operation had been conducted at the right moment by Drs. Joshi and Mbogori. Counsel submitted that the claim that penicillin should have been prescribed at that stage, was not a valid medical suggestion; and the fact that it was later prescribed did not show, post hoc, ergo propter hoc, that penicillin ought to have been used at the very beginning.

Counsel submitted that the content of the third charge against the respondent was not based on correct facts. The charge states:

“That you ….. having considered that the late Justice Z.R.M Chesoni was critically ill left the patient under the care of other medical personnel…..” From the evidence on record, the claim carried by that charge, counsel submitted, was not true in point of fact, and indeed the patient had made considerable improvement at the time Dr. Silverstein had left him on the day in question. So considerable was the improvement, Mrs. Chesoni had even requested a discharge of the patient – and this is recorded in the evidence. Besides, counsel noted, Dr. Silverstein had made written hand-over arrangements with a qualified doctor and consultant, Dr. Joshi, to provide the required medical care in his absence. It was out of caution, Mr. Georgiadis submitted, that Dr. Silverstain had postponed consideration of possible discharge of the patient. When later the patient’s condition deteriorated, Dr. Mbogori promptly informed Dr. Joshi; and as soon as the triad of meningitis symptoms manifested themselves, a lumbar puncture was executed. Thus the Board quite properly, counsel submitted, dismissed the charge made against Dr. Silverstein.

Counsel brought before the Court a review report prepared on behalf of Nairobi Hospital on the patient, prepared by Dr. Samuel N. Gathua (Consultant Physician and Chest Specialist), dated 1st November, 1999 – a document which had also been considered by the Medical Practitioners and Dentists Board. Counsel drew our attention to certain paragraphs in the said review report:

(i) “My impression so far is that the patient was well managed. The initial low BP improved. The neck pain and headache of which he complained on different days can now be explained with hindsight. The management on 27th August, 1999 was excellent. The only problem here was the use of Rocephine instead of crystalline penicillin. The latter appears to have been prescribed and cancelled in favour of the former, suggesting there may have been a discussion concerning penicillin allergy. Subsequent culture sensitivity showed the organisms to be sensitive to Racophine.”

(ii) “In conclusion, I find the care taken on the Chief Justice to have been excellent. There was availability of doctors throughout. The absence of the primary physician at the critical times that the patient changed condition seems to have been unfortunate coincidences. Nevertheless I do not think that his presence would have altered the course of events.”

Learned counsel submitted that the respondent had done everything possible in his capacity as a medical practitioner, to save the life of the late Justice Chesoni and it was not tenable in law that any misconduct or negligence be ascribed to his mode of discharge of professional duty. To substantiate this point, he cited an article entitled “Malpractice and Professional Negligence in the Health Professions”, by W.O Phoon. The author writes:

“The burden of proof of negligence usually rests upon the plaintiff except where facts are so obvious that the onus is then on the doctor to prove that his own negligence did not contribute to this state of affairs.

“The failure to effect a cure or to obtain a good result is not enough in itself to raise an inference of negligence in the diagnosis made or the treatment adopted.”

On this principle, counsel submitted that even in a civil claim, there would be no basis, on the facts on record, for attributing negligence to Dr. Silverstein.

Noting that the matter which came before the Medical Practitioners and Dentists Board was about professional malpractice, learned counsel submitted that there was nothing the Board had failed to consider which showed Dr. Silverstein to be in any way guilty.

Mr. Georgiadis presented the curriculum vitae of doctors who had worked with Dr. Silverstein in caring for the late Justice Chesoni : (i) Dr. Jimmy Mbogori (34), MB.ChB.; (ii) Dr. Luke Musyimi Musau (42) M.B. Ch.B., M.Med(Anaethesia); (iii) Dr. Mark D. Joshi (42), MB.Ch.B, M.Med., Cert. Clin. Epi., M.P.H. He noted that the indirect complainant in the proceedings, Dr. Matseshe, had raised no specific complaint regarding the qualification of the doctors in Dr. Silverstein’s team; his real complaint had only been that Dr. Silverstein was away when the patient should have been released; and then, at that moment, the patient’s condition deteriorated.

What weight should the Court attach to the professional findings of doctors, on medical matters? Learned Counsel, on this point, made submission based on Fox v. General Medical Council [1960]3 E.R. 255 – which was an appeal against a decision of the General Medical Counsel acting by its Disciplinary Committee. Their lordships in the Privy Council there held (pp.227-229):

“It does not seem to their Lordships that it is possible to find an exact analogy between the position of the Board on an appeal under the Medical Act and the position of an appellate court dealing with an appeal either from a judge sitting with a jury or from a judge sitting alone to decide both law and fact ….

“The tribunal was … fully entitled to make the findings before it, and it would be impossible for an appellate court to reverse the finding on any contrary view of the facts. It follows that the appeal must fail unless there was some defect in the conduct of the inquiry ….”

On the basis of the Fox case, Mr. Georgiadis submitted that this Court ought not to go into the merits of the Board’s decision which was quite properly reached.

Mr. Georgiadis submitted that the appellant had been unable to show any matter in respect of which the Board may have erred; consequently her appeal lacked merit and should be dismissed.

3. Appellant’s Response

In his reply, Mr. Adere doubted the relevance of a post-mortem report as a basis for ascertaining the cause of death of Justice Chesoni. He maintained that the death certificate had indeed been signed by Dr. Silverstein, and what it indicated as cause of death was preumococcal meningitis. Mr. Adere contended that the patient’s heart condition could not have been the cause of death: because “[he] was alive with that same heart condition for so long”. In learned counsel’s words: “post-mortem was considered. It was found to be unnecessary, because the doctor treating Mr. Chesoni knew the cause of death”. Mr. Georgiadis stood up, at this point to remind the Court that the one who refused postmortem was Dr. Matseshe, even when he was begged by Dr. Silverstein.

From the record taken before the Board, it was the Chesonifamily that refused post-mortem. This is consistent with the statement made by learned counsel, Mr. Adere, that “post-mortem was considered, but was found to be unnecessary”.

Mr. Adere contested the applicability of comparative legal material which had been relied on by counsel for the respondent, and contended that “abandonment” as a charge against Dr. Silverstein was not something medical in nature; in counsel’s words: “I would want to see other doctors appearing with my doctor, not the other doctors appearing alone”. Counsel still maintained that Dr. Silverstein could not overlook penicillin as a treatment and prescribe different medication. In his view, the Board, by not analyzing the evidence on that question, went wrong and its decision was wrong in law.

Mr. Aderesubmitted that there was overwhelming evidence before the Board to make a finding against Dr. Silverstein. He urged that this Court do substitute acquittal with conviction, and then award an appropriate sentence, and that the appeal be allowed with costs

D. ANALYSIS

Dr. Matseshe, who lived and worked as a doctor in the United States, flew into the country several days after the late Justice Chesoniwas hospitalized, under the care of the respondent. Little, as the record shows, was heard from him until after 5th September, 1999, when the patient died. He thereafter became the source of ripping news reports which he launched on the occasion, attended by the President and most key political leaders, of the burial of the deceased. This, we would agree with the averment of counsel for the respondent, created the momentum which led to the proceedings of a Preliminary Inquiry Committee of doctors, conducted in September and October, 1999 for the purpose of probing the manner in which Dr. Silverstein had discharged his obligations of medical care towards Mr. Justice Chesoni. We believe so because no complaint is on record as having led to the said inquiry process. The Chairman of the Committee, from the minutes of the meeting of 29th September, 1999 –

“informed members that the committee had been charged with the responsibility of inquiring into the medical management of the late. Zaccheus Mutsunga Chesoni who was admitted in the Nairobi Hospital in the months of September and who subsequently died in the same hospital within 2 weeks of admission. He further informed members that the Chairman of [the] Medical Practitioners and Dentists Board had received information which allegedly constituted professional misconduct.”

After its three-day meeting the Preliminary Inquiry Committee made the following findings:

“(a) From the serial polymorph count and rise in temperature, infection was never controlled. Could an anarobic cover have been appropriate?

“(b) There was use of multiple drugs addressing symptoms without an effort to establish the basic problem.

“(c) There were many doctors who looked after the patient. Apparently there was no proper co-ordination for the effective management of the patient.

“(d) During Dr. Silverstein’s absence, he left either an inadequate [or an inappropriately qualified] doctor in charge of a critically ill patient. He attempted to correct the anomaly by telephone consultations with the doctors. Obviously this is sub-optimal treatment.”

These clearly negative findings led to the proceedings of the Medical Practitioners and Dentists Board, the decisions of which have come to this Court on appeal.

As already noted, there was no complainant who formally moved the Preliminary Inquiry Committee. Its proceedings were ordered by the Chairman of the Medical Practitioners and Dentists Board who was reported to have received information necessitating his order. It follows that, once again, there is no formal record of a complainant, even though the Chairman of the Board (constituted into a tribunal) stated that Dr. Matseshe who was a witness, would “present the complaint”. Dr. Matseshe spoke as a witness and was cross-examined and the Board’s tribunal took the decision to acquit the respondent. From this moment the applicant, a daughter of the late Justice Chesoni, became the complainant and this appeal is brought in her name.

We have set out in detail, at the very beginning, an account of the medical care accorded the late Justice Chesoni, from the moment of admission to that of death. We have also described the issues that came before the Board, the case made by the appellant before this Court, and the case made by the respondent. We have noted and arrived at certain matters of fact which we will set down here in point form, as a basis for our analysis leading to our findings on matters of law. These are as follows:

(a) While Dr. Silverstein was the doctor primarily responsible for providing care to the late Mr. Justice Chesoni, he did work closely with a team of doctors – each of them being a fully qualified doctor, with specialization in particular areas of human health. While the most recurrent names among the said team were Dr. Joshi, Dr. Mbogori, and Dr. Musau, Dr. Silverstein also worked in collaboration with several other doctors, including – Dr. Shabbir Hussein; Dr. Musoke; Dr. Mucuha; Dr. Kabiru; Dr. Mwinzi; Dr. Olaly; Dr. Wekulo; Dr. Wailuma. From the evidence before the Court, we did not get the impression that any of these doctors did anything in relation to the patient which was inconsistent with the general course of treatment, or outside the directions provided by Dr. Silverstein.

(b) It emerges as a fact that Dr. Silverstein had a quite long history of providing medical care to Justice Chesoni; he was familiar with Justice Chesoni’s health problems right from the 1970s.

(c)Dr. Silverstein had in the past treated Justice Chesoni of gout. But the most serious ailment which had afflicted the deceased, and which, in its developed form over the last 10 years or so, was a heart-valve condition, known as aortic aneurysm: a severe condition of morbidity in the aorta which could cause death any time, especially if a hemorrhage occurs.

(d)Dr. Silverstein’s treatment of the patient’s attack of meningitis was based on repeated lumbar puncture operations, and there can be no doubt that the best efforts were deployed to control this ailment; and as the healing process was quite advanced when the patient suddenly relapsed and died, there is no objective basis on which it can be positively stated that death occurred from meningitis. Only a post-mortem examination would have yielded a definite answer.

(e) Post-mortem examination was not conducted after the patient died. It is not clear to us why the family of the deceased, and principally Dr. Matseshe, would not allow the conduct of such a vital process for determining cause of death with certainty.

(f) It has been clearly demonstrated by counsel for the respondent that there was no possibility of diagnosing for pneumococcal meningitis at the time of admission of the patient, because this patient was asymptomatic and did not at that stage show the three regnised signals of the ailment. When, three days later the signals were shown, a lumbar puncture was immediately done, and an appropriate course of treatment started. The course of treatment preferred was the best, in the assessment of the doctor. Dr. Silverstein did not commence this course of treatment using penicillin, and there was no professional requirement that he should begin with penicillin.

(g)Dr. Silverstein worked closely with a good number of properly qualified doctors, in providing medical care, and he remained in close contact with them when he was out of Nairobi, and had quite properly delegated duties to one or more of these other doctors.

(h)Dr. Matseshe, who we believe sparked the process leading to the inquiry before the Preliminary Inquiry Committee and the tribunal of the Medical Practitioners and Dentists Board, did know of the major aortic ailment which the patient had; did know that Dr. Silverstein had accorded health-care to the patient over a long period of time; did not have the documented facts relating to the course of treatment that had been administered to the patient; did not know the level of qualification of each of the several doctors who attended to the patient alongside Dr. Silverstein; and had no knowledge of the systematic collaboration which was at play as between Dr. Silversteinand the other doctors in the team.

(i) Though not officially on the record as complainant, Dr. Matseshe played a crucial catalytic role in moving the proceedings against Dr. Silverstein; but he then returned quietly to his base in the United States, and the appellant’s counsel has informed this Court that : “Dr. Matseshe is now irrelevant, as he is out of the picture.” The effect was that the appellant on record was now left alone with the quite onerous task of proving the three quasi-criminal charges nearly beyond reasonable doubt. Before the tribunal of the Medical Practitioners and Dentists Board, that onus was found not to have been discharged, and so Dr. Silverstein was acquitted on all the charges.

We will record our decision after making a summarized re-appraisal of our perception of the appellant’s dealing with the three charges.

(i)Charge No.1 : Did the respondent fail to make appropriate diagnosis timeously or within reasonable time, to facilitate appropriate treatment being administered, and did he thereby endanger the life of the patient?

Like the tribunal of the Board, we would answer this question in the negative. The respondent acted cautiously in doing the lumbar puncture of the patient not earlier than the time when he did it; and he applied the best course of treatment to the patient’s condition as diagnosed.

(ii) Charge No. 2 : Is it the case that the respondent failed to carry out a complete history and physical examination of the late Justice Z.R.M Chesoni and to co-ordinate treatment and carefully evaluate investigation and treatment given, which led to inappropriate treatment?

No proof was placed before us of any more appropriate treatment than that which was given by the respondent. It is to us clear, from the evidence, that the history and examination of the patient were competently carried out, and this placed the doctor in a proper professional position to determine the best course of treatment for the patient. Proper diagnosis and treatment are matters falling professionally upon the doctor in charge; and it cannot be right that others would wish to impose their own regimen. The respondent’s preference of medications other than penicillin, when he started treating the patient for pneumococcal meningitis, has been cogently shown to have been professionally meritorious. We must, therefore, answer the question under this charge in the negative.

(iii) Charge No. 3 : Is it the case that the respondent, knowing that the late Justice Z.R.M Chesoni was critically ill, left the patient under the care of other medical personnel not suitably qualified, and only kept telephone contact with the patient and with those managing him, with the result that the treatment of the patient fell short of what he was professionally entitled to expect?

The weight of the evidence before the Board’s tribunal, and the relative cogency of the submissions made before this Court, dictate an answer in the negative. We have established that the late Justice Chesoni was accorded the best possible course of treatment, and had the full and continuous attention of competent and qualified doctors all the time during his hospitalization. The evidence also shows that the downturn which resulted in the patient’s death, followed very promising moments when the patient’s family was, in fact, requesting Dr. Silversteinto discharge the patient. Therefore the respondent did not leave the patient’s bedside “when the patient was critically ill”.

In this regard we have been disturbed by the generalized denigrations of the professional standing of very learned doctors, by Dr. Matseshe. We take judicial notice that the medical profession in this country is as honourable as it is demanding, and doctors who reach the standing such as that held by those who worked with the respondent in caring for the patient, cannot rightly be generically typified as “unqualified”. It is quite clear to us that the late Mr. Justice Chesoni had been accorded the best medical care possible.

In the result we hereby dismiss this appeal, with costs to the respondent.

Orders accordingly.

DATED and DELIVERED at Nairobi this 13th day of May, 2005.

J.B OJWANG

JUDGE

Coram : Ransley & Ojwang, JJ

Court Clerks – Maina

Mwangi

For the Appellants : Mr. Adere, Ms Lavuna – instructed byM/s Adere & Co. Advocates.

For the Respondents : Mr. Georgiadis, Mr. Gachui –instructed by M/s Kaplan & Stratton advocates