[2017] KEHC 2422 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 1766 OF 2002

CYRUS KANYI........................................................................... PLAINTIFF

-V E R S U S –

CONSOLATA HOSPITAL .............................................1ST DEFENDANT

DR. JOHN MAGANGA................................................. 2ND DEFENDANT

JUDGEMENT

1) Cyrus Kanyi, the plaintiff herein was involved in a road traffic accident along Nyeri-Nyahururu Road on 8th December 1999. As a result of the aforesaid accident, the plaintiff suffered the following injuries interalia:

i.Cervical fracture

ii.Fracture of the left femur

iii.Fracture of the right tibia

iv.Fracture of the right fibula

2) The plaintiff was initially taken to Nyahururu District Hospital for treatment and later, on the same day, he was transferred to Consolata Hospital (the 1st defendant herein) where he was admitted at the facility on 9th December 1999. While at the aforesaid hospital the plaintiff was attended to and operated on several times by Dr. John Maganga, the 2nd defendant herein, who was working in the 1st respondent’s hospital. It is the plaintiff’s averment that all those operations were botched and resulted in very serious complications on the part of the plaintiff which wounds have never healed up 17 years down the line. The plaintiff has averred that due to the negligence of the 2nd defendant who was an employee of Consolata Hospital, a series of errors of omissions and commissions were occasioned during the operations which impeded the plaintiff’s recovery from the injuries he had suffered in the road traffic accident.

3) In a further amended plaint dated 5. 6.2012 the plaintiff sued the 1st and 2nd defendants claiming for

i. General and special damages

ii.Future medical expenses

iii.Costs

iv.Interest on (i) and (ii) above

4) The 1st defendant filed a statement of defence to deny the plaintiff’s claim. The 1st defendant specifically denied ever employing or having the 2nd defendant or any person by that name as its employee at the Consolata Hospital. When the case came up for hearing the plaintiff testified and summoned three independent witnesses in support of his case. The defendants opted to close their case when their witnesses failed to turn up for hearing.

5) At the close of evidence, learned counsels were invited to file and exchange written submissions. It is the evidence of Cyrus Kanyi (PW1) that he was involved in a road traffic accident whereof he sustained multiple injuries. He was taken to Consolata Hospital where he was confined for 11 months. He claimed that he was operated 8 times and he produced the relevant medical reports and documents to confirm that. The documents included invoices, medical notes, x-rays images and receipts. The plaintiff further told this court that he was attended to by Dr. John Maganga, the 2nd defendant. It is PW1’s evidence that the 2nd defendant was an employee of the 1st defendant. PW1 further stated that the 2nd defendant fixed and removed plates when they were found to be broken, bend or unfitted. He claimed that he was discharged before his legs got healed and that he was forced to seek for a second medical opinion when he was in great pain and unable to walk.

6) PW1 further stated that upon obtaining a second medical opinion he was informed that he had a severe bone infection whose primary suspected cause was the botched surgeries he underwent in the hands of the 2nd defendant. PW1 also stated that due to the non-union of the tibia, he was referred to P.C.E.A Kikuyu Hospital where he is being attended to date. He underwent a successful surgery bone grafting operation where one of his ribs was removed and grafted to his right leg and has undergone several operations to drain the swelling from the persistent infection that developed at the 1st defendant’s hospital. PW1 also stated that he has suffered alot of pain, costs and trauma for over 17 years and he is still receiving medication and still going through operations to drain the swellings. The plaintiff blamed the defendants for their negligence in attending to him for 11 months.

7) The plaintiff also summoned the evidence of three(3) expert witnesses namely Dr. Washington Wokabi(PW2), Prof. Kiama Wangai (PW 3) and Dr. John Kingori (PW 4). The sum total of their evidence is that the surgeries performed by the 1st defendant’s employee were botched surgeries showing proof of medical negligence and mismanagement. The documents presented to this court shows that the plaintiff(PW1) was first attended to in the 1st defendant’s hospital. It also opined that if the plaintiff had been afforded reasonable care and skill in the primary operation, the fractures the plaintiff sustained could have been managed within a short period of time and the plaintiff could have completely healed. It is also the evidence of the medical experts that the plaintiff will still need to undergo more operations to contain the complications. It was also pointed out that the x-ray images which bore the 2nd defendant’s name and date revealed the presence of a foreign material left after the botch operations. It was also averred by the plaintiff that foreign material was negligently left in the body of the patient or other negligent conduct of the operations can cause osteomyelitic infection and in the circumstances of this case, this was the primary suspect.

8) The plaintiff stated that he was infected with acute post-traumatic osteomyelitis on or before September 2000.

9) At the close of evidence learned counsels appearing in the matter were invited to file written submissions. The following issues arose for determination

1. Was the plaintiff an inpatient no. 3901/99 of the 1st defendant hospital having been admitted following a road traffic accident on 8/12/1999?

2. Did the plaintiff receive treatment at the 1st defendant hospital through the 2nd defendant.

3. Was the plaintiff operated on by a qualified surgeon?

4. If the answer to number 1 is yes, did the 2nd defendant accord the plaintiff due professional care and skill?

5. Is there evidence of negligence by the 2nd defendant in treating and operating the plaintiff?

6. If answer in 5 above is yes, does liability attach to the 1st defendant for those professional negligence of the 2nd defendant who was his employee?

7. Did the 2nd defendant’s professional negligence (if any) impede the plaintiff’s recovery from injuries sustained from the road accident?

8. Was the 2nd defendant in breach of his professional duty of care?

9. Is the plaintiff entitled to general and special damages from the loss, pain and suffering that he has undergone as a result of the negligent acts of the 2nd defendant?

10. Who should bear the costs of this suit?

10) On the first issue as to whether or not the plaintiff was admitted in the 1st defendant’s medical facility? The plaintiff tendered evidence showing that he was on 09. 12. 1999 admitted in the 1st defendant’s hospital as in-patient no. 3901/99. This is shown in the receipts, radiological examination, discharge summary, x-ray, and the invoices the plaintiff produced as exhibits in evidence. In its submissions, the 1st defendant argued that the documents produced by the plaintiff at the trial were inadmissible since they were not stamped in accordance with the provisions of Section 19 of the Stamp Duty Act. With respect, some of the documents namely invoices, radiological examination, x-ray, discharge summaries etc do not require to have a stamp. Having examined the aforesaid documents, I am convinced that the plaintiff was actually admitted and was treated at Consolata Hospital, a medical facility belonging to the 1st defendant. There is even unconroverted evidence showing that the plaintiff deposited his title L.R. No. Othaya/Kiachagu/1060 as security for his discharge with Consolata Hospital.

11) The second issue to be determined is who operated the plaintiff in Consolata Hospital? According to the plaintiff, he was operated by Dr. John Maganga, the 2nd defendant. The 1st defendant on the other hand has categorically denied the assertion that the 2nd defendant was its employee. The 1st defendant has alleged that the plaintiff has failed to tender credible evidence to establish that the 2nd defendant was indeed the employee of the 1st defendant. At the beginning of this judgment, this court noted that the defendants had failed to tender their evidence to controvert that tendered by plaintiff.

12) In the case of M(a minor) =vs= Amulega & Another (2001)K.L.R 400 the court restated the requirements which must be present to establish the tort of medical negligence as follows:

“Authorities who own a hospital are in law under the self-same duty as the humblest doctor. Whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot of course do it by themselves. They must do it by the staff whom they employ and if their staff is negligent in giving the treatment, they are just as liable for that negligence as in anyone else who employs others to do his duties for him........ It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital. They are liable for the negligent acts of a member of the hospital staff, which constitutes a breach of that duty of care owed by hospital authorities are in fact liable for breach of duty by its members of staff.... It is trite law that a medical practitioner owes a duty of care to his patients to take all due care, caution and diligence in the treatment.”

13) I have come to the conclusion that having been attended to and operated in the 1st defendant’s hospital and there being no suggestion by the 1st defendant that another surgeon as opposed to the 2nd defendant conducted the operation the defence set up is found to be untenable. The fact remains that the 2nd defendant or any other doctor employed by the 1st defendant operated and attended to the plaintiff. the defendants are liable.

14) The third issue was whether the 2nd defendant was qualified to undertake surgeries as alluded in this case. The plaintiff produced correspondences he had obtained from the Medical Practitioners and Dentists Board showing that the 2nd defendant was not registered nor licensed. The plaintiff summoned professional doctors to testify in support of his case. It was clear from the testimonies of the doctors that the plaintiff was left by the 1st defendant to be attended to by an unqualified person. The plaintiff underwent 8 operations which appeared may not have been necessary. The plaintiff presented evidence showing that he suffered severe bone infection as a consequence. It is therefore right for this court to make inference whether the 2nd defendant and or whoever attended the plaintiff was not qualified.

15) The 4th, 5th 6th 7th and 8th issues can be dealt with together since they relate to the question as to whether or not the defendants were negligent and whether they owed any duty of care to the plaintiff.

The principles applicable in determining medical negligence are well settled. In the case of Blyth =vs= Birmingham Water Works Co. 11 Ex.784it was held inter alia:

“The omission to do something which a reasonable man would do; or doing something which a reasonable man would not do.”

16) In this case, the plaintiff tendered evidence showing that the 1st defendant ran a medical institution to offer professional expertise. It automatically assumed duty of care towards the plaintiff. The 1st defendant was expected to accord due professional care and offer sound medical practices. The plaintiff was able to show that the defendants through a series of errors of omission and commission were occasioned during the operations which impeded the plaintiff’s recovery from the injuries he sustained due to a road accident.

17) The expert witness produced evidence showing that foreign materials left in situ in the patient’s body can cause osteomyelitis and are the primary causes of the infection in the circumstances of this case. The expert witnesses further tendered evidence showing that wrong plates and k-nails which were either bent or broke were inserted thus creating the need for more operations hence exposing the plaintiff to acute posttraumatic osteomyelitis.

18) The second last issue to be determined is whether or not the plaintiff is entitled to damages. There is no doubt that the plaintiff has suffered acute post-traumatic osteomyelitis, prolonged severe pain and suffering for many years. He also suffered huge medical expenses, trauma for long confinement in hospital on the right leg. The evidence tendered shows that the plaintiff was first operated in the 1st defendant’s hospital while he was in a fair condition. There was no evidence tendered by the defendants to show that prior to admission, the plaintiff was diagonised with osteomyelitis. I am satisfied that when the plaintiff was discharged, he had developed acute post-traumatic osteomyelitis.

19) In his evidence in chief, the plaintiff stated that he was operated on 8 times by the 2nd defendant in the 1st defendant’s hospital and in the process he developed an infection. The plaintiff’s evidence were corroborated by the evidence of Dr. Wokabi a consultant surgeon who assessed the plaintiff in 2001. He stated that the plaintiff developed an infection while in hospital. Prof. Wangai a consultant orthopaedic surgeon confirmed that there was negligence on the part of the defendants. Unfortunately, the defendants failed to tender evidence to exonerate them from negligence and neither did they explain the circumstances which the severe bone infection came to be nor the need for the numerous operations.

20) The plaintiff further tendered evidence showing that he sought for a second medical opinion. The plaintiff in Mt. Kenya and Outspan Hospitals where sequestrectomy was administered in a bid to contain the infection. In Otspan hospital the plaintiff stated that he underwent an operation where the wrong k-nail inserted by the defendant was removed. From the evidence presented to this court it is clear that the plaintiff was a patient referred to the 1st defendant’s hospital for professional opinion and treatment. As a patient the plaintiff expected expert advice, treatment and management of his illness, but unfortunately the defendant did not exercise due diligence, care, knowledge or caution in the way they handled the plaintiff. The operations the plaintiff underwent were performed on him leading to his confinement in hospital where the patient endured great pain and suffering and in the process he incurred huge expenses. I am satisfied that the 1st defendant is vicariously liability for the negligent acts of the 2nd defendant and or any of its employees. Consequently, the defendants are found liable jointly and severally.

21) Having found the defendants liable, the next question is whether the plaintiff is entitled to damages. There is no dispute that having undergone numerous operations that the plaintiff suffered great pain and suffering. He sustained permanent disability in his right leg and risks that leg being amputated. The plaintiff had proposed on this head to be paid ksh.10,000,000/=. After a careful consideration of past decisions on near similar injuries, I am convinced that a sum of ksh.3,000,000/= is sufficient.

22) The plaintiff has also asked to be paid damages for loss of income/business. He proposed to be paid ksh.3,500 per day. I have considered the evidence presented by the plaintiff on this head but I find no credible evidence clearly showing that the plaintiff suffered any loss of income nor business. I decline to make any award.

23) On special damages, the plaintiff presented medical documents Showing that he incurred a sum of kshs.5,100,000/=. He beseeched this court to grant him the amount. I have carefully perused the plaint and it is apparent that the plaintiff pleaded to be paid kshs.1,310,000/=. It is trite law that special damages must be pleaded and proved. In this case the sum of kshs.1,310,000/= was actually pleaded and proved. I award the plaintiff the same.

24) The plaintiff further urged this court to award him future medical expenses. It is difficult to ascertain the exact figure when it comes to this prayer. What is not in doubt is that the plaintiff will require future medical attention. In the circumstances I will award him a global figure. He is awarded ksh.500,000/=.

25) In the end, I enter judgement in favour of the plaintiff and against the defendants jointly and severally as follows:

i. Pain and suffering ksh.3,000,000/=

ii. Special damages (pleaded & proved) ksh.1,310,000/=

iii. Future medical expenses ksh.500,000/=

Grand total ksh.4,810,000/=

iv. Costs of the suit

v. Interest on (1) and (ii) at court rates from the date of judgement until full payment.

Dated, Signed and Delivered in open court this 6th day of October, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Plaintiff

..................................................... for the Defendant