[2018] KEHAT 2 (KLR)

REPUBLIC OF KENYA

IN THE HIV & AIDS TRIBUNAL AT NAIROBI

H.A.T. CASE NO. 006 OF 2016

JKO..................................................................................................CLAIMANT

-VS-

NAIROBI WEST HOSPITAL LIMITED...............................RESPONDENT

JUDGMENT

A. INTRODUCTION

1. This is a complaint filed by the Claimant by way of Statement of Claim dated 11th July 2016. The Claimant avers that on 9th January 2016 he visited the Respondent hospital seeking treatment, where he underwent various tests. The Respondent’s doctor then advised the Claimant that he had malaria and blood infection, although doctor did not specify the type of blood infection. Following this diagnosis, the Claimant was admitted to the Respondent hospital.

2. The Claimant avers that on 11th January 2016, he woke up feeling better and seemed to be on his way to full recovery. Nonetheless, the Respondent’s doctor, Dr. Mohammed Ezzie, informed the Claimant’s wife that the malaria had affected the Claimant’s kidneys and that it would be necessary to conduct an ultrasound scan. The Respondent’s doctor then returned on 12th January 2016, with information that the ultrasound scan had revealed that the Claimant’s kidneys were full of foreign objects that needed to be pumped out.

3. Due to the escalating medical bills, the Claimant and his family were apprehensive that they would be unable to settle them, thus causing the Claimant to request to be discharged from the Respondent hospital. The Claimant was duly discharged on 13th January 2016, but on condition that the Claimant should get follow-up treatment at Kenyatta National Hospital so as to avoid future complications.

4. The Claimant alleges that just before his discharge on 13th January 2016, some two individuals dressed in white lab coats came to his bedside and informed him that they were counselors at the Respondent hospital and needed to brief him on the test results. It was at this juncture that the two counselors informed the Claimant that the blood test conducted on him revealed that he was HIV positive. The Claimant avers that the news took him by surprise since neither the Respondent hospital nor its doctors had sought the Claimant’s consent before conducting the test, nor had they guided or counseled the Claimant on the possible outcome of the HIV test as is expected of medical practitioners.

5. The Claimant avers that upon discharge, he was issued with a referral letter dated 13th January 2016, particularizing the provisional diagnosis and treatment administered to him while admitted at the Respondent hospital. The Claimant returned home, but the news of his status proved to be too daunting and took a heavy toll on his health. The Claimant alleges that upon seeing how his condition was deteriorating, his wife, armed with the Discharge Summary, sought help from the Kaloleni Health Care Clinic. At the clinic, Samuel Onyango, a Medical Officer informed the Claimant’s wife that the Discharge Summary indicated that the Claimant had been tested and found to be HIV positive. The Medical Officer explained to the Claimant’s wife that the drugs prescribed in the Discharge Summary are meant for persons with HIV.

6. Following this revelation, the Claimant’s wife went back home, accompanied by the Medical Officer. Back at home, the Claimant states that he had been informed of his HIV status by the Respondent’s doctors. He believed that his condition had worsened as a result of the shocking news and agreed to allow the Medical Officer, Samuel Onyango, to conduct an HIV test on him. The Medical Officer then proceeded to conduct the test which revealed that the Claimant was HIV negative. This news restored hope in the Claimant, but just to confirm the results, the Medical Officer conducted a second test. The HIV negative result was confirmed.

7. The Claimant alleges that as a consequence of the Respondent’s negligence and breach of statutory obligations, the Claimant has suffered and continues to suffer extreme mental and psychological torture, his marriage was on brink of ending suddenly, loss of confidence and trust by his wife and children and that he has been rendered a social misfit.

8. Aggrieved, the Claimant now seeks redress from this Tribunal vide the claim herein. The Claimant prays for:

i. General damages;

ii. Exemplary damages;

iii. Costs of this suit;

iv. Interest on (i), (ii) and (iii) above at Court rates;

v. Any other relief that the Tribunal deems fit to award.

B. RESPONSE

9. The Respondent, through its Counsels, Muthoga Gaturu & Company Advocates, filed its response to Statement of Claim dated 7th April 2017. The Respondent admits that the Claimant did visit its facility on 9th January 2016, but denies issuing a referral letter to the Claimant. The Respondent further denies all allegations made at paragraphs 3-19 of the Statement of Claim.

10. In the alternative, the Respondent avers that it treated the Claimant with the professionalism required of it while discharging its duty to patients and that its services were in accordance with the HIV Testing by a Medical Professional (PTIC) Guidelines.

11. The Respondent further avers that it employs qualified personnel and that all medical decisions made in the treatment of the Claimant did not deviate from acceptable medical standards and norms. The Respondent avers that the Claimant was counseled and that it would have been negligent not to advice the Claimant of the results of the preliminary test in view of the fact that he had discharged himself. The Respondent avers that the Claimant was advised that the results of the standard HIV test were not yet ready and that the Claimant agreed to come back for the results.

12. The Respondent avers that two tests were conducted; the rapid HIV test and a standard HIV test. The latter test revealed that the Claimant was HIV negative. The Respondent avers that the Claimant was a victim of a false positive test, which occurs when the test results show positive yet, the person is really negative. The Respondent denies administering or prescribing HIV treatment drugs to the Claimant.

C. ISSUES FOR DETERMINATION

13. In his submissions dated 30th October 2017, the Claimant has enumerated the following as issues for determination by this Tribunal:

i) Whether the Respondent tested the Claimant for HIV & AIDS?

ii) Whether the Respondent obtained the informed consent of the Claimant before testing the Claimant for HIV & AIDS?

iii) Whether the Respondent compelled the Claimant to undergo an HIV test?

iv) Whether the Respondent administered and provided the Claimant with the mandatory pre and post HIV test counselling?

v) Whether the Respondent informed the Claimant that he was HIV positive while well aware that he is not;

vi) Whether the Respondent prescribed and administered HIV & AIDS treatments drugs on the Claimant while aware that he was not HIV positive?

14. The Respondent, in turn, has enumerated the following as issues for determination by this Tribunal:

i) Which party bears the burden of proof?

ii) Whether the Claimant was compelled to undergo HIV test?

iii) Whether the manner in which the HIV test was carried out amounted to negligence?

iv) Whether the Respondent administered and provided the Claimant with the pre and post HIV test counselling?

v) Whether the drugs prescribed by the Respondent to the Claimant were HIV/AIDS treatment drugs?

15. From the pleadings, witness testimonies and written submissions, we have isolated the following issues for determination;

(i) Whether the Claimant was compelled to undergo HIV testing without his informed consent;

(ii) Whether the tests were preceded by pre-test and post-test counselling as required by law;

(iii) Whether the Respondent was negligent in the manner in which it conducted the HIV testing and in informing the Claimant that he was HIV positive when he was not;

(iv) Whether the Respondent was negligent in prescribing antiretroviral drugs to the Claimant yet he was not HIV Positive;

(v) Whether the Claimant is entitled to costs

D. EVIDENCE

16. The Claimant began his case by calling Samuel Omondi Onyango, (PW1), a nursing officer at Kaloleni Health Services Clinic for the past 11 years. Samuel Onyango’s duties entail checking patient, giving prescriptions, offering family planning services, counseling and testing for HIV, offering antenatal clinic services and assisting in deliveries.

17. PW1 testified that on 23rd January 2016, he was on duty at the clinic when the Claimant’s wife, MA, came to the facility to seek advice about her husband who had been treated for malaria at the Respondent hospital. PW1 perused the Discharge Summary dated 13th January 2016 and inquired from the Claimant’s wife whether she was aware that the Claimant had been diagnosed with HIV.

18. PW1 testified that he then advised the Claimant’s wife to get tested, which she consented to in writing. The results revealed that she was HIV negative. Following the test, PW1 then requested to re-test the Claimant. The Claimant’s wife asked for his indulgence to allow her to go home and speak to the Claimant about this. PW1 then went about his daily duties and later that evening, he went to the Claimant’s house. After conveying about the Discharge Summary, the Claimant opened up to PW1 and disclosed that he had a problem bothering him. PW1 testified that the Claimant was troubled by his wife’s suspicion of him. PW1 then disclosed the HIV status of the Claimant’s wife, which greatly surprised the Claimant. The Claimant then consented to take another test. This time, the test results were negative. PW1 advised the Claimant to retake the test after 3 months in order to confirm his status.

19. On cross-examination, the PW1 admitted that it is prohibited for one to discuss the medical status of a patient without the patient’s consent. He further admitted that he did not have the written or any consent of the Claimant to discuss his medical condition with the Claimant’s wife. He confessed that he is the one who disclosed the Claimant’s status to the Claimant’s wife.

20. PW1 was unaware that the couple had recently travelled to Nyanza. He confirmed that Septrin is not an anti-retroviral drug. He stated that he is aware that there is a failure rate for HIV testing kits, although he was not familiar with the acceptable usage. A false positive is where the kit indicates a positive result which is not necessarily true. A false positive can be caused by negligence of the tester or the poor storage of testing kits. PW1 refuted the claim that malaria can result in a false positive.

21. PW1 explained that the Claimant’s wife came into the clinic in the afternoon. He did not know how long the Claimant’s wife waited to see him, but she went home to collect the referral letter and took about 30 minutes to return. PW1 went to the Claimant’s home at about 6pm and left at about 7pm. He did not charge for the visit or the test. Although the Claimant was a regular patient at the clinic, PW1 did not recall a visit by the Claimant to the clinic prior to the Claimant’s admission at the Respondent hospital.

22. On re-examination, PW1 clarified that the Claimant’s wife identified herself as such and requested to have the contents of the letter explained to her. PW1 further stated that Septrin is prescribed in order to prevent opportunistic infections.

23. The Claimant’s next witness, PW2, was FOC, the Claimant’s son. The PW2 adopted his written statement dated 17th July, 2016 and produced the same as his testimony.

24. On cross-examination, PW2 confirmed that the Claimant was admitted at the Respondent hospital from 9th January 2016 to 12th January 2016. PW2 was not present when the Claimant was discharged from the Respondent hospital, neither was he present when the Claimant’s wife visited the clinic at Kaloleni. PW2 was not present when the Medical Officer (PW1) went to visit the Claimant at his home.

25. The Claimant’s third witness (PW3) was MA, the Claimant’s wife. PW3 adopted her written statement dated 11th July 2016 and produced the same as her evidence in chief.

26. On cross-examination, PW3 confirmed that she is aged 59 years while the Claimant is 72 years old. The Claimant had travelled upcountry for about one month, over the Christmas period, and returned to Nairobi on 5th January 2016. The Claimant took ill on 8th January 2016 and the PW3 took him to the clinic at Kaloleni in the night. He suffered from headache and shivering. Due to the lateness of the hour, the couple did not find PW1 at the clinic. However, the attending doctor prescribed some painkillers for the Claimant. The couple spent the night at the clinic. PW3 testified that the attending doctor suspected that the Claimant was suffering from malaria.

27. On 9th January 2016, the couple proceeded to the Respondent hospital. At the hospital, PW3 explained to the doctor the Claimant’s situation. She could not recall how much deposit was paid to the Respondent hospital prior to the Claimant’s admission. However, the Claimant was discharged on 13th January 2016 due to the escalating hospital bill. By this time, the bill was at Kshs. 1,000,000/-. The decision to have the Claimant discharged was arrived at by the family of the Claimant.

28. The PW3 testified that upon discharge, she went to see PW1, the Medical Officer at Kaloleni Clinic. At the time, PW3 did not have the Discharge Summary with her, so she went back home to collect the same and thereafter returned to the clinic. PW3 did not inform her husband, the Claimant, about the Discharge Summary. It is when she returned to the clinic with the Discharge Summary that PW1 informed her about the Claimant’s HIV status. PW3 testified that PW1 did not request to see the drugs prescribed to the Claimant.

29. PW3 then went back home, in the company of PW1, the Medical Officer. At home, PW3 overheard the conversation between the Claimant and PW1, which was in Luo. PW3 testified that PW1 informed the Claimant that he would test the Claimant for malaria, which he did. PW1 returned later that evening with the results of the test. PW1 did not inform the Claimant that it was an HIV test and neither did the Claimant sign any document before or after the testing.

30. The final witness to be called was the Claimant himself. He, too, adopted his written statement dated 11th July, 2016. In his statement, the Claimant avers that upon falling ill on the evening of 8th January 2016, his wife, PW3, took him to the Kaloleni Health Clinic. He remained at the clinic until the morning of 9th January 2016 when he went to the Respondent hospital, accompanied by his wife, sister-in-law and daughter. At the Respondent hospital, the doctor on duty advised that tests should be conducted in order to identify the cause of the illness. The doctor, however, did not specify the tests to be conducted.

31. When the results of the tests were out, the doctor informed the Claimant that he had malaria and blood infection, although he did not clarify what blood infection had been detected. The doctor then recommended that the Claimant be admitted so that his progress could be monitored closely. The Claimant agreed and was subsequently admitted.

32. On 11th January 2016, the Claimant woke up feeling much better and on his way to full recovery. However, one Dr. Mohammed Ezzie informed the Claimant’s wife, PW3, that the malaria had affected the Claimant’s kidneys and that an ultrasound scan was necessary. The ultrasound scan was conducted and the next day, Dr. Ezzie informed the Claimant’s wife that the scan had revealed that the Claimant’s kidneys were full of foreign objects that needed to be pumped out. However, in view of the escalating medical bill, the Claimant’s family was apprehensive that they would not be able to settle it, and thus opted to have the Claimant discharged.

33. On cross-examination, the Claimant reiterated that on the day of his discharge from the Respondent hospital, a young lady and gentleman came to him and informed him that they had tested him and that he was HIV positive. However, they did not inform him when the blood was drawn for testing.

34. The Claimant confirmed that prior to the hospitalization at the Respondent hospital, he had travelled to Siaya, Bondo, where he had been for 3 weeks. He went to Kaloleni Health Clinic the day after his arrival in Nairobi. He then spent 3 days at the Respondent hospital. At the hospital, the doctors drew blood three times; on the first day, a few days later and on the third day. The Claimant testified that the doctors did not tell him personally that he had malaria. Ordinarily, they would address his wife. On the day of discharge, all that the doctors told him was that he was HIV positive.

35. The Claimant testified that he told his wife about his HIV status on the same day of discharge. The Claimant’s wife then got worried and went to Kaloleni Clinic the next day. She went alone and returned home later and told the Claimant that he was HIV positive.

36. On cross-examination, the Claimant could not recall any visit by the Medical Officer, PW1, nor any test being conducted on him at home. However, the Claimant felt that the whole incident was rather defamatory to him. The Claimant confirmed that he went to Kaloleni Clinic where PW1 conducted a test on him and the results were negative. PW1, however, did not counsel the Claimant. On re-examination, the Claimant reiterated that an HIV test was conducted on him at the Respondent hospital without his consent or counseling.

37. The Respondent then called its first witness, Julius Miruka, an HIV Counselor at Nairobi Place. Prior to Nairobi place, DW1 had been employed at the Respondent hospital for 8 years. His duties entailed counseling patients and assisting nurses in the psychiatric ward. He confirmed that he was a trained HIV/AIDS Counselor and provided copies of 7 certificates in evidence, which were obtained in 1998, 2006, 2008, 2009, 2012 and 2015.

38. DW1 recalled that on 12th January 2016, he was called by the doctor to go and counsel the Claimant. The purpose of the counselling was to enlighten the Claimant about HIV. DW1 was accompanied by 2 interns from Daystar University, the patient was alone in the room. DW1 testified that he counseled the Claimant using a mix of English and Kiswahili. After the counselling, he then proceeded to conduct the test on the Claimant. The following day, the Claimant advised DW1 that the Claimant was to be discharged from the hospital due to the escalating medical bill. When the DW1 returned on the following for the post-test counselling, DW1 informed the Claimant that he should undergo a confirmatory test, and advised the Claimant to return for the subsequent test in a week’s time. The Claimant, however, did not return to the hospital. The results of the confirmatory test were negative. DW1 further testified that there were about 15 drugs prescribed to the Claimant, and none of them was an anti-retroviral drug.

39. On cross examination, the DW1 confirmed that he counseled the Claimant prior to the testing and that the counselling was even documented in the Claimant’s patient file. However, DW1 did not confirm the age, weight or height of the Claimant prior to the testing, but could hazard a guess on the age of the Claimant. DW1 confirmed that he spoke to the Claimant, who was conscious at the time, but had no proof that the Claimant had consented to the testing. DW1 further testified that although he was not very conversant with the provisions of section 14 (4) of the HIV & AIDS Prevention and Control Act, 2006, he believed that he had not committed any crime.

40. On re-examination, DW1 clarified that all he did was to counsel the Claimant on the 12th and 13th of January. He did not conduct the test himself since he is not registered with the Kenya Laboratories and Technicians Board.

E. SUBMISSIONS

Which party bears the burden of proof?

41. On the issue of whether the Respondent tested the Claimant for HIV & AIDS, it is clear from the Response to the Claim, the Claimant’s submissions as well as the Respondent’s submissions that an HIV test was conducted on the Claimant. This issue is not in contention. What is in contention, however, is whether the Claimant was compelled to undergo the test and whether or not the Respondent obtained informed consent from the Claimant prior to the testing. The Claimant argued that pursuant to the provisions of Section 14 (1) (a) of the HIV and AIDS Prevention and Control Act, 2006 (hereinafter ‘HAPCA’), it is mandatory that before any person conducts an HIV test on another person, that such person must obtain the informed consent of the person undergoing the HIV test.

42. In expounding on the meaning of ‘informed consent’, the Claimant relied on the case of CNM –vs- The Karen Hospital Ltd, HAT No. 008 of 2015 (unreported), in which this Tribunal addressed itself to the meaning of informed consent. In the cited case, the Tribunal opined that ‘informed consent’ for HIV testing means that the person being tested agrees to undergo the test on the basis of understanding the testing procedures, the reasons for the testing, and is able to assess the personal implications of having or not having the test performed. The Tribunal further opined that the requirement for informed consent is intended to uphold the dignity of the patient and it proceeds on the theory that the patient does not lose his dignity because he has fallen sick or because he does not know what his treatment will entail, which treatment option is better than the other, or others, and what risks are associated with any or all the available treatment options.

43. In arriving at whether or not a person gives informed consent, the Tribunal, in the cited case, enumerated the various issues that must be openly discussed with the person prior to the testing. These include:

(a) What is an HIV test?

(b) What is the purpose of HIV Testing?

(c) What are the limitations of HIV testing?

(d) What are the risks involved (medical and non-medical risks)?

(e) What are the results expected?

(f) What does HIV diagnosis mean and what supports are available?

(g) What does negative HIV test mean?

(h) What confidentiality and privacy issues will arise and how will they be dealt with?

(i) What are the implications of not being tested?

44. In his submissions, the Claimant herein argued that the onus of proving that the informed consent of the Claimant was obtained before the HIV testing lies on the Respondent. He contended that in order to sufficiently prove that the informed consent of the Claimant was obtained, the Respondent is required to prove that it satisfied the ingredients set out in the Karen Hospital Ltd case (supra), and that proving the strict adherence of the said requirements must be by way of documentary evidence. The Claimant relied on the well-established principle of law that he makes an allegation has the burden of proving he existence of those allegations.

45. On its part, the Respondent submitted that the Claimant bears the burden of proving the allegations made in his Statement of Claim. The Respondent asserted that the Claimant has not discharged this burden to the required standard, and relied on the case of Atsango Chesoni –vs- David Morton Silverstein [2005] eKLR, in which the Court of Appeal pronounced itself as follows:

“the burden of proof of negligence usually rests upon the plaintiff (claimant) except where facts are so obvious that the onus is then on the doctor to prove that his own negligence did not contribute to the state of affairs. The failure to effect a sure 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.”

46. The Respondent further relied on the Karen Hospital Ltd case (supra) in which this Tribunal opined that a claimant bears the burden of proving all allegations made in the statement of claim to the requisite standard. Just as was stated in the cited case, this Tribunal agrees with the Respondent’s submissions herein regarding the burden and standard of proof that are required of the Claimant herein. Similarly, the issue as to whether the Claimant herein has discharged that burden will only become clear after all the issues outlined have been considered.

Whether the Claimant was compelled to undergo an HIV test without his informed consent

47. The Claimant submitted that since the Respondent did not obtain the informed consent of the Claimant, then it stands to reason that the Respondent compelled the Claimant to undergo the HIV test contrary to section 13 (1) of HAPCA. Based on this assertion, we now draw our minds to the issue of whether or not the Respondent obtained the informed consent of the Claimant to carry out the HIV testing.

48. Section 13 (1) of HAPCA provides as follows:

‘Subject to this Act, no person shall compel another to undergo an HIV test.’

49. In the Karen Hospital Ltd case (supra), this Tribunal addressed the issue of compulsory testing, and pronounced itself thus:

“We believe that what amounts to compulsory HIV testing needs to be properly conceptualized. In doing this, it is important to consider whether a person can be compelled to do something in the absence of force or threat and also when the person is not aware that he is being so compelled. No force or threat was used to coerce the claimant into donating blood, nor was the claimant aware that the blood was going to be used to test for HIV. Can it, therefore, be apposite to say that she was compelled to undergo HIV testing? …

As already stated above, the word ‘compel’ means ‘to induce’, ‘to oblige’ or ‘to coerce’. To ‘induce’ simply means to influence, persuade, convince, prevail upon, prompt or encourage someone to do something. To ‘oblige’ on the other hand, means to make someone believe that she is morally or legally (or medically) bound to do something. Finally, ‘to coerce’ means to influence someone to do something by use of threats. From the foregoing, it follows that it is possible to compel someone to do something without using force or threats, where he has been induced and/or obliged to do something. In our view, where a person is induced to donate blood under the mistaken belief that it will be used for other tests (apart from HIV testing) and it is used for HIV testing then that patient has been compulsorily tested for HIV.

Where a doctor or other medical personnel obliges a patient to give blood for some undisclosed tests, and thereafter proceeds to use the same to test for HIV, then the doctor or other medical personnel will have subjected the said patient to compulsory HIV testing and will have committed the crime as well as the tort of compulsory HIV testing.”

50. The facts herein seem to fall squarely within the findings of the Tribunal in the cited case. The Claimant was informed that tests were required, although the nature and specifics of the tests were not disclosed to him. The Claimant’s testimony on this point was not refuted by the Respondent. Accordingly, we hold that the HIV testing done on the Claimant herein on 11th January 2016 alongside other tests, violated the provisions of section 13 of HAPCA. We further find that the Respondent failed to appreciate and discharge its obligation to obtain informed consent from the Claimant for the HIV testing, contrary to section 14 of HAPCA. We award the Claimant the sum of Kshs 250,000/-.

Whether the tests were preceded by pre-test and post-test counselling as required by law

51. On the one hand, the Claimant submitted that the Respondent did not administer an HIV pre-test and post-test counseling as required under section 17 of HAPCA. The Claimant insisted that the Respondent simply informed him that tests would be conducted, but did not specify which particular tests. In his argument, the Claimant has relied on the case of Rahab Micere Murage –vs- AG & 2 Others [2012] eKLR.The Claimant argued that the Respondent had the obligations of discharging its evidentiary burden by tendering documentary evidence in form of an HIV counselling form duly signed by the Claimant proving that the counselling was administered to the Claimant before and after the HIV test was conducted.

52. The Respondent, on its part, contends that it the mandatory pre and post-test counseling was done. The Respondent argued that while it is desirable that consent in such cases is given in writing, the guidelines used in the testing and counselling by NASCOP recognize that consent can be given verbally. Further, the Respondent submitted that despite the Claimant’s admissions of unwillingness to be counselled, the Respondent’s staff carried out the mandatory pre and post counselling sessions in line with statutory provisions.

53. Turning our minds to the evidence presented before this Tribunal, the Claimant testified that he was a gentleman and a lady walked into his room and informed him that he had been tested for HIV and that he was positive. He averred that he was never counselled before or after the test. Of interest is that the fact that on cross examination, the Claimant testified that on the day of his discharge, when he was informed of his status by the lady and gentleman, he retorted that it was their concern. On re-examination, the Claimant insisted that no one counselled him and that the HIV test was conducted without his consent.

54. The Claimant’s documents included the Patient Service Bill Detail Report dated 18th February 2016. Regarding the consultations, the Bill indicates consultations by the Resident Doctor on 9th January 2016 and 10th January 2016 and a ward visit on 11th January 2016 by two doctors, Mohammed Ezzie and John Ngige. At page 3 of the Bill, there is a ward visit by the Counsellor on 12th January 2016 and a subsequent visit by a Counsellor on 13th January 2016. This evidence, presented by the Claimant himself, was corroborated by the testimony of DW1 – Julius Miruka, the Counsellor. The obvious result of this is that the Tribunal has to weigh the word of the Claimant who insists that he was not counselled, against the documentary evidence produced by the Claimant himself and the testimonial evidence of the Respondent’s witness to the contrary. The proof threshold furnished by the Claimant does not meet the balance of probabilities standard, since it is merely the Claimant’s allegations against the evidence presented indicating the contrary. We, therefore, find that the Claimant has failed to prove his case to the requisite standard of proof and dismiss the Claimant’s allegations to the effect that he was not given pre-test and post-test counselling.

Whether the Respondent was negligent in the manner in which it conducted the HIV test

55. The Claimant argued that the Respondent was negligent in informing the Claimant that he was HIV positive, while well aware that he was not, and in prescribing and administering HIV treatment to the Claimant while aware that he was not HIV positive. It is not in contention that the Claimant was a victim of a false positive, which occurs when the test results indicate positive yet the person is HIV negative. The Claimant submitted that since the Respondent was well aware of the failure rate of the Rapid HIV test kit that it used to administer the test on the Claimant, then the Respondent ought to have conducted at least 2 other tests before advising the Claimant of his HIV status.

56. On its part, the Respondent submitted that the doctors attending to the Claimant acted professionally and in line with statutory requirements and national guidelines. The doctor is, therefore, not negligent merely because the preliminary test gave erroneous results due to the various reasons disclosed, which include kit malfunction and the presence of other infections in the Claimant’s body which many have increased the chances of cross reaction of antibodies. DW1 testified that upon presenting the results of the test to the Claimant on the same day he was to be discharged, he further informed the Claimant that it would be necessary for him to come back after one week, which the Claimant did not. Unfortunately, it is difficult to ascertain an accurate account of the events of the day from the Claimant’s testimony since his recollection of the facts seemed to be rather contradictory. On cross examination, the Claimant stated that on the day of discharge, the 2 doctors came into his room and informed him that he was HIV positive. He retorted that that was their concern, not his. He further testified that he informed his wife of his HIV status on the same day of discharge, yet his wife testified that it was PW1, Samuel Onyango, who informed her of the Claimant’s HIV status. The Claimant also testified that no doctor came home to test him for HIV but that he later went to Kaloleni Clinic for testing, which testimony contradicts that of PW1 and PW2, who stated that the PW1, the Clinical Officer, came home on the evening of 23rd January 2016 and conducted an HIV test on the Claimant.

57. From the foregoing, it is impossible for this Tribunal to ascertain whether or not the Claimant was informed to return a week later for confirmatory tests, which he refused to do. The Respondent has made reference to the cases of The Administrator, HH Aga Khan Platinum Jubilee Hospital –vs- Munyambuand Hunter –vs- Harley [1955] SC 200, regarding the test for negligence:

‘in the realm of diagnosis and treatment there is ample scope of genuine difference of opinion and one is clearly not negligent merely because his conclusion differs from that of other men…the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to have been guilty of such failure as no doctor of ordinary skill would be guilty of acting with ordinary care.’

58. In Pope John Paul’s Hospital & Another vs Baby Kasosi [1974] EA 221, the East African Court of Appeal held:

“If a professional man professes an art, he must reasonably be skilled in it. He must also be careful, but the standard of care, which the law requires, is not insurance against accidental slips. It is such a defence a degree of care as normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances of the case, and, in applying the duty of care to the care of a surgeon, it is peculiarity necessary to have regard to the different kinds of circumstances that may present themselves to urgent attention.A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correctly greater. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. In cases charging medical negligence, a court should be careful not to construe everything that goes wrong in the cause of medical treatment as amounting to negligence. The courts would be doing a disservice to the community at large if they were to impose a liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion required the courts to have regard to the conditions in which hospitals and doctors work. They must insist on due care for the patient at every point, but must not condemn as negligence that which is only a misadventure. To the extent of not confusing negligence with misadventure, clear proof of negligence is necessary in cases involving medical men, but it cannot be accepted that the burden of proving such negligence is higher than in ordinary cases. The burden is to prove that the damage was caused by negligence and was not a question of misadventure, and that burden must be discharged on a preponderance of evidence. In medical cases, the fact that something has gone wrong is not in itself any evidence of negligence . In surgical operations, there are, inevitably, risks on the other hand, of course, in a case like this, there are points where the onus must shift, where a judge or injury might infer negligence, particularly if available witnesses who would throw light on what happened were not called.

59. It is not in contention that the Claimant was eager for early discharge from the Respondent hospital, since he was apprehensive of the escalating medical bill. This, therefore, made it impossible for the Respondent’s doctors to conduct a confirmatory HIV test, following the results of the first test. The Claimant admitted that he was discharged on condition that he would seek further treatment at the Kenyatta National Hospital in order to avoid future complications. It would, therefore, be incorrect to hold the Respondent and its doctors liable for negligence because they failed to conduct confirmatory tests. The Claimant did not accord them the opportunity to do so.

Whether the Respondent was negligent in prescribing antiretroviral drugs to the Claimant yet he was not HIV Positive

60. It is the Claimant’s submission that on 13th January 2016, as the Claimant was being discharged from the Respondent hospital, he was advised to take drugs that are meant for persons who are recently diagnosed with HIV. The Claimant contends that the Respondent prescribed these drugs to the Claimant with full knowledge that the Claimant was not HIV positive.

61. Having addressed the issue of negligence hereinabove, we find that, whilst prescribing the drugs to the Claimant, the Respondent did not know that the Claimant was not HIV positive, since the doctors’ diagnosis was based on the results of the HIV test that had been conducted. For this reason, one cannot infer negligence on the part of the Respondent in prescribing the said drugs.

F. DETERMINATION

62. On the issue of the pre and post testing counseling, we find that the Claimant has failed to strictly prove that he was not given pre-test and post-test counseling. The Claimant’s allegations to the effect that he was not given pre-test counselling or post-test counselling are, therefore, dismissed.

63. On the issue of consent, we find that the Claimant was compelled to undergo HIV testing without his informed consent, contrary to sections 13 and 14 of HAPCA. Accordingly, the Claimant is awarded the sum of Kshs 1,000,000/- in damages.

64. On the issue of negligence on the part of the Respondent in the manner in which the Respondent conducted the HIV test and in informing the Claimant that he was HIV positive when it later turned out that the Claimant was negative, we find that no liability lies on the part of the Respondent and, therefore, dismiss the claim. Further, we dismiss the claim that the Respondent was negligent in prescribing drugs to the Claimant, with full knowledge that the Claimant was not HIV positive.

65. The Claimant is awarded costs.

DELIVERED AT NAIROBI THIS 17TH DAY OF AUGUST 2018.

MR. JOTHAM O. ARWA

HIV AND AIDS TRIBUNAL CHAIRMAN