[2022] KEHC 1618 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO. 47 OF 2011

JOYCE MWONJIRU NJUGUNA

(Suing aspersonal representatives of the estate of

SAMSON NJUGUNA MUNYUA-Deceased)...................................................PLAINTIFF

-VERSUS-

DR. MAURICE WAMBANI....................................................................1ST DEFENDANT

AAR HEALTH SERVICES...................................................................2ND DEFENDANT

JUDGMENT

1. The plaintiff in her legal capacity as personal representative of the estate of Samson Njuguna Munyua (“the deceased”) in this instance brought a suit against the 1st and 2nd defendants vide the plaint dated 11th February, 2011 and amended plaint dated 4th October, 2018. The 1st defendant is sued in his capacity as a medical practitioner and one of the primary medical caregivers of the deceased whereas the 2nd defendant is sued in its capacity as the health care service provider in which deceased received treatment at all material times.

2. The plaintiff pleaded in her amended plaint that on or about September 2009 the deceased felt unwell and thus visited A.A.R Williamson Clinic with a complaint of difficulties in micturition and inability to completely empty his bladder where he was seen by Dr. Okudo who made a diagnosis of an enlarged prostate and was referred to the 1st defendant on the basis of being a consultant urologist who booked him for theater at the Nairobi Hospital and proceeded to conduct some surgery to remove the prostate.

3. The plaintiff pleaded that the 1st defendant noticed that urine kept on dribbling non-stop of which he informed the 1st defendant who assured him that it would end in a while but the dribbling did not stop, making him sought a second opinion at the metropolitan hospital where an agent of AAR attempted management and later referred him to Kenyatta National Hospital but elected to revisit the AAR Williamson Clinic upon which referral to the 1st defendant was made yet again.

4. The plaintiff further pleaded that since he had severally been attended to by the 1st defendant with little success, so he consulted another urologist Dr. Peter Mungai Ngugi of Upper Hill Medical Centre who noted that the prostate had not been removed contrary to the 1st defendant misrepresentation to the plaintiff.

5. It is pleaded that the surgery was repeated on the plaintiff and the prostate removed but the damage caused by the 1st defendant could not and cannot be corrected. The 1st defendant admitted that the plaintiff had chronic retention due to bladder outflow obstruction but the operation conducted by the 1st defendant was trucat sextant biopsies with transurethral resection of the prostate.

6. It is also pleaded that the 1st defendant admitted to haveinstructed upon discharge that the plaintiff should expect some hematuria, dysuria and dribbling of urine for a week and it shall spontaneously resolve which infact did not happen.

7. The plaintiff pleaded that Dr. Peter Mungai Ngugi upon examination indicated that the plaintiff had a malignant feeling prostate and proceeded to remove the prostate and it was confirmed and reported as such by Dr. Okemwa.

8. The plaintiff further pleaded that the AAR employees, servants and in particular the 1st defendant if at all managed and treated the plaintiff who was at all acting under the direction and supervision of the 2nd defendant was negligent and failed to use reasonable care and skill in the treatment, management and care to the plaintiff for which negligence the plaintiff holds the defendants liable.

9. The plaintiff attributed the pain and suffering he underwent on negligence on the part of the defendants by setting out the particulars under paragraphs 29 and 31 of the amended plaint.

10. The plaintiff also pleaded that the surgery done by the 1st defendant was baseless, unscientifically sound, unprofessional and malicious and the actions and inactions of the 2nd defendant in cahoots with the 1st defendant contributed and continue to contribute to the anguish, pain, suffering and loss suffered by the plaintiff.

11. It was pleaded that the plaintiff’ s claim against the defendants jointly and severally is for general and aggravated damages in particulars of the damages are as outlined in paragraph 34 of the amended plaint as follows;

i. Pain and suffering

ii. Psychological torture

iii. Continued embarrassing state of his micturition pattern

iv. Permanent loss of his urinary bladder control

v. Financial loss

vi. Professional misconduct and professional negligence.

12. Upon service of summons, the 1st defendant entered appearance and filed the statement of defence dated 31st May, 2010 while the 2nd defendant entered appearance and filed his amended defence dated 11th October 2018 to deny the plaintiffs’ claim.

13. At the hearing, the plaintiff testified and summoned an additional witness, whereas the 1st defendant testified and the 2nd defendant called one witness.

14. In his evidence as PW1, the plaintiff adopted his signed witnessstatement dated 1/2/2011 as evidence and adopted his bundle of documents PEXH1-10. He stated that being insured by AAR, he visited their clinic in Milimani in the month of October 2009 where he met Dr. Okudo who referred him to Dr. Wambani, who told him that he had prostate cancer hence he needed to remove it.

15. It is the plaintiff’s testimony that when he came out of theatre and went to the ward for a week, urine was dribbling and that he raised his concerns but it did not stop and he decided to go back to Dr. Wambani who insisted that the dribbling would stop.

16. He states that he has never recovered from dribbling urine and sometimes uses diapers which costs him about Kshs.3000/= per month. He also stated that he cannot erect hence his sexual life is impaired.

17. In cross-examination by Mr. Mbithi, the plaintiff stated that the Dr. Wambani did not tell him he was going to cut a small channel to enable him to pass urine and that no one told him that the entire prostate was going removed. He stated that he was told he did a procedure known as cystourethroscpy and that the prostate might end with time. He further stated that he was told to hold urine for a while to enable the muscles to develop.

18. The plaintiff stated that he went to see another doctor at Metropolitan Professor Mungai Ngugi who wanted him to undergo the procedure again and that he would rework on the channel through another operation which he did at the Kenyatta National Hospital but the dribbling did not stop. He further stated that he did not know of the side effects of the surgery.

19. It is the testimony of the plaintiff that he did not know Dr. Wambani before and that he does not think he had ill will or malice against him. That if he did the operation properly, he would be undergoing what he is undergoing now.

20. On cross examination by Miss Chege, the plaintiff stated that prior to the surgery he had attended other clinics and there were no complains. He first attended the George Williamson Clinic and was referred to Dr. Wambani a prostate cancer specialist and that during the period of consultation he did not form the impression that the doctor was incompetent.

21. It is the plaintiff’s testimony that the 2nd defendant who provided them with Dr. Wambani, who was in their panel but he did not cross check on the qualifications of the doctors selected to be in the panel of doctors.

22. On re-examination by Miss Wangai, the plaintiff stated that hewas not party to the policy document between the 2nd defendant and the Association of women against AIDS and he was not shown the policy document.

23. He stated that he was told that Dr. Wambani was in the panel of the 2nd defendant and that he was competent as I was not offered any option to choose a doctor of my own. He further stated that Dr. Wambani did not manage him well and that is why he continued to get sick.

24. He stated that he does not have a grudge against Dr. Wambani nor any other person.

25. Dr. Wambugu Mwangi who was PW2 gave evidence that he is a general surgeon who holds Bachelors’ and Maters Degrees in Medicine from the University of Nairobi, he is also a lecturer in the Department of surgery from the same University.

26. He stated that it was his opinion that the dribbling of urine after surgery is a known complication of this procedure which may occur due to the instrument used or due to the swelling of the urethra or infection or due to damage of the muscle which holds the urine. That the persistence urinary problem should be damage to the nerve or sprhinter muscle and that either of the two could have caused that problem with the patient in this case.

27. It is the testimony of PW2 that the it is possible that the prostate gland was huge and it was reduced at the time of the surgery hence making the nerves to no longer activate the valves.

28. In cross-examination, the doctor stated that he is familiar with urology and that he is exposed to this area from time to time and that as a man grows old his prostate also grows and the glands can enlarge because of aging or because it is cancerous.

29. He stated that the history of the patient had shown that the patient had cancer thus blocking his urine blockage and he categorized the patient’s condition as advanced prostate cancer. That in such cases the tumor is likely to damage the nerves and surrounding tissues.

30. The doctor further stated that the nerves are responsible to the controlling the sensitivity of the valves and if they are damaged then one cannot control passage of the urine.

31. He further stated that the patient was not dribbling before surgery because the gland could have pressured the passage and that itwas a life threatening condition.

32. It was the doctor’s testimony that the first stage was to relieve the obstruction and address the cause of the obstruction which was identified in biopsy. That the relieve of the obstruction was through surgery using instruments inserted through the urethra, a hole is drilled to have the urine drain out.

33. He further testified that the patient now deceased told him that he underwent a second surgery and he feels like it was the correct step taken and that the incontinence may have developed after surgery.

34. This marked the close of the plaintiffs’ case.

35. In his evidence as DW1, the 1ST defendant adopted his executed witness statement dated 3rd March 2014, as evidence and testified that he is a neurologic surgeon specialized in male and female neurological system. He holds a Bachelors degree in medicine from the University of Nairobi and also a holder of a masters in surgery from the same University.

36. He also relied on the documents in the defendant’s list of documents in the defendant’s list dated 31st May 2013 and wishes to produce them as exhibits in evidence.

37. He testified that he had no malice nor acted malicious in conducting the surgery on the plaintiff and did not conduct a negligent nor incompetent surgery.

38. It is the doctor’s testimony that he did inform the deceased that in keeping with such surgery that dripping would end after some time but the timeline for such a dribbling cannot be ascertained and in such instances it might never stop. That it is a common occurrence in advanced prostate cancer, of which the plaintiff had advanced prostate cancer.

39. He stated that the whole prostate would only be removed in early prostate cancer and that his understanding is that his colleague Dr. Mungai repeated the procedure when it was noted that the prostate had recurred.

40. On cross examination, the doctor stated that from his initial observation he noted that the dribbling was caused by enlarged prostrate and no examination that had been done on whether or not the patient had prostatic cancer.

41. The witness testified that he did an operative diagnosis so as to await histology, he did two procedures that is a prostate biopsy and to get a channel i.e reset the prostrate. That resection started with the left lobe and the median lope and right lobe and the patient was wheeled back to the theatre after being given catheterized.

42. The witness testified further after the catheterized was removed the patient complained of urine dribbling, so he told the patient that it would stop with a short time as he expected the urine dribbling to stop spontaneously. That he did not injure the sprhinter muscle.

43. In re-examination, the doctor stated that he was not to blame and the patient signed a consent form and that if the condition of dribbling occurs and it does not mean the surgeon did not do a competent surgery.

44. Upon close of hearing, the parties were directed to put in written submissions.

45. On the part of the plaintiff, it is submitted that the sextant biopsy of prostate was never initially authorized and that the operation notes indicate that the 1st defendant conducted two surgeries namely Trucat Biopsy that had not been authorized and TURP that had been authorized.

46. It is the plaintiff’s submissions that the Trucat Biopsy that had not been authorized which caused the problem and that the 1st defendant had no consent to conduct surgery that had not been authorized.

47. The plaintiff submitted that the tissue removed from the TURP would have been used for the histology and that the 1st defendant ought to have stuck to the initial surgery. The plaintiff further submitted that indeed the TURP had to be redone but the damage caused by the Trucat Biopsy could not be reversed.

48. The plaintiff contended that this surgery was purely for commercial benefit to the 1st defendant as he promptly sought to review his invoice upward, it was not for the benefit of the plaintiff.

49. It is the plaintiff’s submission that the 2nd defendant employed a doctor in the like of the 1st defendant who practices for commercial benefit without the interest to the patient’s like the plaintiff and that the 2nd defendant referred him to the 1st defendant as the plaintiff did not choose him

50. It is the plaintiff’s assertion that the 2nd defendant chose and paid the 1st defendant and as such any wrongdoings of the 1st defendant must have the contribution of the 2nd defendant.

51. The plaintiff submits that due to the breach of the duty of care the deceased suffered injury he continued to have urine incontinence to his death.

52. It is the plaintiff’s submission that the urine incontinence caused huge psychological trauma to the plaintiff affecting his dignity, he spent money to purchase adult diapers and urine bags .They therefore urge the court to find that his estate is entitled to compensation.

53. The plaintiff persuade this court to award the Plaintiff’s estate Kshs.5,000,000/= (Kenya shillings five million) for pain and suffering endured by the deceased and that they hold the defendants 100% liable.

54. The plaintiff opine that this court ought to be persuaded as follows:

i. Pain and suffering Kshs.5,000,000/=

ii. Incompetent surgery Kshs.1,500,000/=

iii. Further surgery Kshs.1,500,000/=

iv. Costs of this suit

v. Interest at court rates.

55. In retort, the 1st defendant contends that the incontinence being a known complication of the operation that the plaintiff had was confirmed by Dr. Wambugu hence the Plaintiff’s case has no sound factual basis.

56. The 1st defendant on the law on medical negligence relied on the case of Antony Lungaya Murumbutsa v Moi Teaching and Referral Institute 2014 eKLR citing the career decision of Hermana Nyaugala Tsuma v Kenya Hospital Association TIA on Nairobi Hospital and 2 Others (2012) eKLR

“A doctor cannot be held negligent simply because something goes wrong. A doctor can be found guilty only if he falls short of standards of reasonable skillful medical practice. The true text, therefore, to hold a medical practitioner guilty of negligence is to have a positive finding of such failure on his part as no doctor of ordinary skill would be guilty of acting with reasonable and ordinary care.””

57. The 1st defendant further relied on the case Atsango Chesoni v David Morton Silverstein (2005) eKLR where one doctor had an opinion on how his other colleague had been negligent because the patient had died, the court held :

“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.”

58. The 1st defendant submitted that the plaintiff’s incontinence cannot itself from the basis of concluding that the 1st defendant was negligent and his case is therefore misconceived and should be dismissed with cost.

59. I have considered the evidence placed before this court and the rival submissions coupled with the authorities cited. I have established that the issues for determination are two-fold in nature.

60. I will begin with the foremost issue to do with whether the plaintiffs have made out a case for negligence against the 1st defendant and 2nd defendant.

61. The court in the case of Herman Nyangala Tsuma v Kenya Hospital Association T/A The Nairobi Hospital & 2 Others [2012] eKLRdescribed the tort of negligence as follows:

“In the case law of Blyth v Birmingham Co. [1856] 11 exch.781. 784, Negligence was defined as the omission to do something which a reasonable man, guided upon those considerations which regulate the conduct of human affairs would do, or doing something which a provident and reasonable man would not do. In strict legal analysis, negligence means more than needless or careless conduct, whether in omission or commission, it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing…A duty of care arises once a doctor or other health care professional agrees to diagnose or treat a patient. That professional assumes a duty of care towards that patient.”

62. Furthermore, the following are the elements encompassing the tort of negligence as laid out by the Supreme Court in the case of Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] eKLR:

a) a duty of care,

b) a breach of that duty,

c) causation, and

d) damage.

63. As concerns the first element on statutory duty of care, it is not in dispute that the deceased was at all material times Fa patient under the medical care and attention of the 1st defendant upon admission to the 2nd defendant hospital, thereby giving rise to a statutory duty of care.

64. It is also apparent that though the 1st defendant was indicated as an employee, servant and or agent of the 2nd defendant, it is not in dispute that he utilized the facilities, equipment and medical staff employed by the 2nd defendant at all material times.

65. Consequently, the statutory duty of care owed by the defendants required that they not only ensure that the 1st defendant possesses the proper skills and expertise, but that he exercises the same in a proper and reasonable manner. The authority of Jimmy Paul Semenye v Aga Khan Hospital & 2 others [2006] eKLR cited by the plaintiffs illustrated the above position in the manner earlier mentioned.

66. Having established that there subsisted a statutory duty of care owed by the defendants to the deceased, I will now contemporaneously discuss the second, third and fourth elements on whether the same was breached, thereby causing the injuries/complications to the plaintiff.

67. Upon my examination of the pleadings and evidence tendered, it is apparent that given the medical condition and age of the deceased during his time at the hospital, a higher standard of care was expected on the part of the defendants.

68. Upon my further examination of the pleadings and evidence tendered, it is apparent from the hospital notes that indeed the plaintiff was admitted on 12/10/2009 at the Nairobi Hospital and discharged on 18/10/2009. The discharge summary indicated that the patient should expect initial haematyrla to continue and even the dribbling but should resolve soon.

69. On 18th October 2009 Dr. Wambani indicated that the patient is micturating well and has had only minimal dribbling and no hematuria .The 2nd defendant on 22nd November 2012 gave the 1st defendant authorization to manage the plaintiff.

70. The patient was admitted and underwent surgical procedure 12 core sextant trucut biopsies using biopsy gun and disposal G-18 needle supplied. The biopsy report showed he had prostatic adenocarcinoma Gleason grade.

71. It was noted that the patient had urine incontinence since andreports he was referred for a second opinion after no improvement of the incontinence. The second doctor (urologist) recommended another surgery.

72. It is clear that in the conducting of the sextant biopsy that the 1stdefendant caused the injury to the plaintiff leading to the incontinence of urine and that operation done was authorized by the 2nd defendant. The 2nd defendant authorized TURP and histology and it is not clear why the doctor decided to do biopsy and in the event the histology would have been done on the specimen removed by the TURP.

73. That Dr. P. M Wambugu testified and confirmed that he examined the plaintiff and found that he still had dribbling of urine and was in diapers.

74. Upon evaluating the evidence, I established that the actions taken by the defendants thereafter; particularly the action of having the deceased have unnecessary second surgery which lead to the incontinence of urine, has lead me to conclude that the deceased did not receive the best possible standard of care consistently from the defendants.

75. In addition, the plaintiff indicated that he did not have a sex life since he had developed an erectile dysfunction, he also had to buy urine bags and urine incontinence caused huge psychological trauma to the plaintiff which affected his dignity. The plaintiff also indicated that he had to spend around Kshs.3000 daily for the adult diapers.

76. In view of the foregoing circumstances, I find that the 2nd defendant would be held vicariously liable for the acts of the 1st defendant.

77. I am satisfied that the plaintiffs have successfully made their case for negligence against the defendants and I hold both defendants 100% liable.

78. I will now address the second issue touching on the reliefs being sought by the plaintiffs. I will address this issue under the following heads.

79. In respect to general damages forpain and suffering, upon considering the respective sum proposed by the plaintiff of Kshs.5,000,000/= and the evidence adduced at the trial, it is apparent the deceased died close to seven years from the date he had his surgery, and that he must have experienced some prolonged form of suffering.

80. I award the plaintiff Kshs 2,000,000 which are compensatory in nature to console the plaintiff for the extreme pain he suffered based on the case ofHilda Atieno Were Vs Board of Trustees Aga Khan Hospital-Kisumu & Another [2011]e KLR where the Court awarded the plaintiff Kshs1,500,000 general damages for pain and suffering for medical negligence. In that case, the plaintiff was subjected to an unnecessary operation which the court found that it must have not only caused her pain but the trauma of being confined to a hospital and undergoing an operation and post operation pain and inconvenience.

81. The plaintiff also prayed for aggravated damages albeit he did not quantify it. This court from the listing of damages made by the plaintiff which in essence demonstrate the aggravated circumstances of the manner in which the defendant’s doctor caused him pain and anguish finds the listing to refer to aggravated circumstances. All the other listings are the painful experience that the plaintiff went through due to the wanton negligent acts of the 1st defendant. I would therefore not hesitate to award him aggravated damages for that.

82. Aggravated damages are meant to compensate the plaintiff for the additional injury going beyond that which flawed from the initial injury. I agree that the plaintiff was compelled to undergo a second surgery to remove the prostate. He visited the 2nd defendant’s hospital several times but the best he could be assisted was to be told to buy time as the problem progressed and his health deteriorated. He underwent pain and inconveniences of having erectile dysfunction which meant his sexual life was impaired and also the fact that he had to buy adult diapers that would cost him Kshs.3000/= per month. I would, in the circumstances award the plaintiff a sum of Kshs. 2,500,000/= aggravated damages. Total damages Kshs. 4,500,000.

83. I also award the plaintiff costs of this suit and interest at court rates on general damages from the date of this judgment until payment in full.

84. Judgement is entered in favour of the plaintiff and against the defendant as follows:

i. General damage pain & suffering 2,000,000/=

ii. Aggravated damages 2,500,000/=

iii. Costs of the suit.

iv. Interest at court rates from date of judgment.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

...........................

J. K. SERGON

JUDGE

In the presence of:

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

..................................... for the 1st Defendant

.................................... for the 2nd Defendant