[2015] KEHC 6969 (KLR)

Moga (Suing on his behalf and that of the Estate of the Late Joyce Adema in his capacity as the legal representative as well as on behalf of the named dependants of the said deceased) v The Nairobi Women's Hospital & 3 others (Civil Case 477 of 2009) [2015] KEHC 6969 (KLR) (Civ) (16 January 2015) (Judgment)

George Moga v Nairobi Women’s Hospital & 3 others [2015] eKLR

Neutral citation: [2015] KEHC 6969 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Civil

Civil Case 477 of 2009

REA Ougo, J

January 16, 2015

Between

George Moga

Plaintiff

Suing on his behalf and that of the Estate of the Late Joyce Adema in his capacity as the legal representative as well as on behalf of the named dependants of the said deceased

and

The Nairobi Women's Hospital

1st Defendant

Dr. Wahome

2nd Defendant

Dr. Kigondu

3rd Defendant

Dr. Mucheru

4th Defendant

Court Awards Damages Against Nairobi Women's Hospital Due to Negligence.

Reported by Emma Kinya Mwobobbia

Law of Torts- negligence - medical negligence - application for damages - claim by the applicants that the deceased died out of misdiagnosis and medical negligence by the medical staff - duty of care - breach of duty care - whether the medical staff had breached the duty of care owed to the patient now deceased during treatment at their facility

Brief facts

The deceased sought the services of Nairobi Women’s Hospital after being previously treated in a different hospital with no improvement. However, she was instructed by the doctor at Nairobi Women’s Hospital to continue with the medication ordered by the doctor at the previous hospital. The following day, the deceased’s condition worsened and she returned to the hospital for further examination. She was attended to by Dr Kigondu who relied on the previous diagnosis of depression and admitted her awaiting Dr Mucheru to arrive from Dadaab. Dr Mucheru, a psychiatrist, arrived at 8:30pm by which time the deceased’s condition had already deteriorated but nonetheless relied on the same initial diagnosis of depression even after noting that the deceased’s condition was worsening rather than improving. The doctor administered valium and flugone to reduce chest congestion and depression and when her condition deteriorated further valium was administered. She later recommended that a physician be called to examine the deceased but left before ensuring that the same was done and no physician examined the deceased as recommended. The deceased later died at 10:30 pm on the same day. A post mortem was conducted on the deceased’s body and the cause of death was found to be acute cor-pulmonale secondary to pulmonary thrombo-embolism. The Court noted that before coming to court the plaintiff had lodged a complaint at the Medical and Dentist Board and a finding had been made by the Board after parties had made their submissions.

Issues

i. Whether the defendants were bound by the diagnosis of the doctor from the previous hospital during treatment of the deceased. ii. Whether the defendants owed a duty of care to the deceased to conduct a thorough examination before treatment. iii. Whether the duty of care was breached by the reliance of the doctor on the diagnosis of a previous doctor. iv. Whether the defendants were negligent in the execution of their duties and hence liable for the death of the deceased. v. Whether the hospital could be held liable for the negligence of its employees including doctors who had taken individual Hippocratic oaths. vi. Whether there were any damages recoverable.

Held 1. The plaintiff’s case against the defendants was that of negligence. In order to succeed in negligence the plaintiff must prove that:a. there was a duty of care owed to deceased by the defendants.b. that there was a breach of that duty of care; andc. that the breach of duty resulted in damage to the plaintiff which was not remote.2. A medical practitioner owed a duty of care to his patients to take all due care, caution and diligence in the treatment. The law required a doctor to exercise such degree of care as any skilful member of his profession could reasonably be expected to exercise. A doctor, like any other professional, must exercise such skill and care.3. The 2nd defendant being the first doctor to treat the deceased set the ball rolling in determining the deceased’s ailment. It was evident that he did not change the medication for reasons that the deceased had been examined by a consultant. Being the first doctor who attended to the deceased it was his duty to make the appropriate examination. However, he chose to follow the diagnosis of the doctor from the previous hospital and did not conduct his own proper diagnosis on the deceased.4. Despite the patient complaining of breathlessness and pain in her chest, fainting episodes and mood disorders, the 2nd defendant selectively picked the last mentioned complaint of the patient’s mood disorder and recommended the patient to be booked for psychiatric review. He did not take time to find out whether she had a problem with her chest and heart other than the depression she suffered from.5. Being the first doctor to attend to the patient, the 2nd defendant ought to have done a proper independent examination on the patient. Had he obtained a proper diagnosis from the patient he would have noticed that other than depression, the deceased needed urgent treatment to ease the pain in her chest and the breathlessness. The 2nd defendant therefore did not conduct proper diagnosis on the deceased but chose to rely on the diagnosis of the previous doctor.6. According to the evidence adduced in court and the Medical Practitioners and Dentist Board’s report and recommendation, the 3rd defendant did not prescribe any medication to the deceased since he was called in to sustain the deceased when she deteriorated and therefore, he was not negligent.7. The 4th defendant was called by a staff at the hospital at 3:00pm to check on the deceased but she responded to the patient at 8:30p.m, five hours later instead of explaining that being in Daadab, the distance between her and the deceased needed the intervention of another doctor. That would have in fact paved way for the 1st defendant to get a second doctor on call to attend to the deceased.8. When a patient of such condition as the deceased was attended to in any hospital and by doctors who upheld their hippocratic oaths, a doctor ought to take each patient with the seriousness they deserve, that being the duty of care. They should consider that every patient in a hospital needs an emergency intervention until they are well enough to be discharged, that being the standard of care.9. It was the 4th defendant’s duty to find out from the hospital staff the condition of the patient before she committed to attend to her knowing very well that she was out of Nairobi. It was apparent that the hospital staff opted to wait for her to attend to the patient and all the while the patient was deteriorating. It was the 4th defendant’s duty to carefully consider what the previous doctor had sought to do before and in addition make a recommendation that a physician attends to her immediately.10. The 4th defendant owed the deceased a duty of care which she failed to give and thus was negligent in her duty. The exercise of reasonable skill and care required that the doctor ought to have taken the necessary steps as soon as possible to ensure the patient gets the best possible treatment whenever the patient’s condition required so, especially when there was no hindrance to the facilitation of such treatment.11. What was expected of the doctors at the hospital was to take note that despite the deceased coming back to hospital a day after treatment she needed further diagnosis as she had a consistent complaint of chest pain and dyspnoea. Therefore, in not taking any action in the two days she was at the hospital the hospital staff did not exercise reasonable care and skill as expected in the circumstances of the case.12. The fact that the deceased died as a result of pulmonary thrombo embolism (PTE) was not in dispute. All doctors who testified agreed that it was not easy to detect the disease. However, the 2nd and 4th defendants failed to investigate the causes of the chest pain and strained breathing that the deceased complained of. Even if there were psychiatric manifestations in the patient, the symptoms of chest pains ought to have been taken seriously as her condition deteriorated thereby leading to her admission.13. The 1st defendant was vicariously liable for acts of the 2nd and 4th defendants. The hospital authorities were liable for breach of duty of its members of staff, of a duty owed to a patient because the doctors having received and taken under their care patients, were servants or employees of the 1st defendant and therefore any negligence in the performance of the doctors duties would make the 1st defendant vicariously liable. The 1st defendant was therefore vicariously liable for the actions of the 2nd and 4th defendants.14. Special damages must not only be specifically claimed but strictly proved for they are not the direct natural or probable consequence of the act complained of and may not be informed from the act. The decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.15. (Obiter) “I must express my views on the findings of the Medical Practitioners and Dentist Board. I note that before coming to court, the plaintiff had lodged a complaint at the Medical and Dentist Board and after the parties made their submissions a finding was done by the Board. The Board has professionals who are experts in the medical field therefore their findings and recommendations were vital. However, I note that the Board contradicted itself in the findings and recommendation in the report. What would have been expected of them being professionals is a consistent verdict between their findings and recommendations.”

Suit allowed.

Orders Judgment entered for the plaintiff against the 1st, 2nd and 4th defendants jointly and severally for Kshs. 3,623,200 plus costs and interest from the date of judgment.

Citations

East Africa 1. Hahn v Singh, [1985] KLR - (Followed) 2. Tsuma, Herman Nyangala v Kenyatta Hospital Association t/a Nairobi Hospital & 2 others Civil Suit No 534 of 2007 3. Karisa, William Kazungu v Cosmas Angore Chanzera Civil Suit No 85 of 2001 - (Mentioned) 4. Kimani, Benedeta Wanjiku v Changwon Cheboi & another Civil Case 373 of 2008 - (Followed) 5. M (A minor) v Amullenga & another [2001] KLR 420 - (Explained) 6 . Ngatia, Betty (Administrator of the estate of Gladys Waithira Ngatia)v Samuel Kinuthia Thuita Civil Suit No 339 of 1998 - (Followed)United Kingdom 1. Cassidy v Ministry of Health [1951] 2 KB 343; [1951] 1 All ER 574 - (Followed) 2. Djemal v Bexley Health Authority [1995]6 Med L R 269 - (Followed) 3. Hunter v Hanley [1955] SLT 213; [1955] ScotCS CSIH 2; 1955 SC 200 - (Explained) 4. Marriot v West Midlands Regional Health Authority [1999] Lloyd’s Rep Med 23 - (Followed) 5. Republic v Batemen (1925)94 LJ KB 791 - (Followed) Statutes East Africa Law Reform Act (cap 26) In general (Cited) Texts and Journals 1. Garner, BA., (Ed) (2009) Black’s Law Dictionary St Paul Minnesota: West Group 9th Edn 2. Powell, JL., Jackson,RM., (Eds) (1998) Jackson & Powel on Professional negligence London: Sweet & Maxwell 5th Edn p12-177 3. Swash, M., (Ed) (2001) Hutchinson’s Clinical Methods London: Saunders Ltd 21st Edn

Judgment

1. The plaintiff filed this suit on 8th September 2009 and later sought leave of this court to amend his plaint. This prayer was allowed and he subsequently filed the amended plaint on 20th September 2010. In his amended plaint the plaintiff claims that defendants were entrusted with the medical treatment of the Late Joyce Adema and were negligent in attending to her a fact which led to the death of the deceased. He therefore prays for judgment as against the defendants for:-a.Special damages of Kshs 190,000/=b.General damages for pain and suffering, loss of life and loss of yearsc.Costs and interests thereof.

2. He avers that the 1st defendant was a health service provider specialised in women and children with its operations based in Nairobi. The 2nd to 4th Defendants were medical doctors working in employment and agents of the 1st defendant.

3. It is averred that on or about 10th July 2007 at 11:00 am the deceased went to the 1st defendant hospital to be attended as a referral but was instead instructed to continue previous wrong medications ordered by an outsider doctor Dr Makanyango of Kenyatta National Hospital by the 2nd Defendant. That the following day 11th July 2007 at about 11:00am the deceased’s condition worsened and she returned to the 1st defendant hospital for further examination and treatment. She was not treated but casually attended to by Dr Kigondu the 3rd defendant who relied on the wrong diagnosis of depression and admitted her awaiting Dr Mucheru the 4th defendant to arrive from Dadaab. All this while, the deceased continue to complain of chest pain and inability to breath. That Dr Mucheru a psychiatrist arrived by 8:30pm by which time the deceased’s condition had already deteriorated but nonetheless relied on the same initial diagnosis of depression by the doctor from Kenyatta National Hospital even after noting that the deceased’s condition was worsening rather than improving. That Dr Mucheru administered valium and flugone to reduce chest congestion and depression and when her condition deteriorated further valium was administered. She later recommended that a physician be called to examine the deceased but left before ensuring that the same was done as no physician examined the deceased as recommended. The deceased later died at 10:30 pm same day. That when a post mortem was conducted on the deceased’s body, the cause of death was found to be acute col-pulmonale secondary to Pulmonary Thrombo-embolism.

4. The plaintiff alleges negligence on the part of the defendants and particularises them as follows:-a.Despite the deceased revealing that she had attended Dr Makanyango of Kenyatta National Hospital who had diagnosed her as being depressed and given medication, she had not recovered and had gone to the 1st defendant for referral. Dr Wahome the 2nd defendant advised her to continue taking the depression tablets despite her condition worsening.b.Relying on diagnosis from an outsider in its referral status.c.Failure by the defendants to exercise reasonable care, skill and diligence in the manner in which they handled the deceased.d.Failure to exhaustively investigate the core/main complaint by the deceased of acute chest pain, shortness of breath and fatigue even as her condition continued to deteriorate.e.Failure to use their skills, knowledge and or experience to order a chest X-ray to detect the root cause of the acute chest pains, shortness of breath and fatigue.f.Failure to detect pulmonary thrombo-embolism.g.Failure to avail a doctor on time to save the life of the deceasedh.Failure by the 1st defendant and his agents/servants to provide proper and adequate facilities to have and use like ultrasound or MRI scanner to detect the blood clot in the deceased’s lungs.i.Failure to discharge their duty of care towards the deceased.

5. The plaintiff holds the hospital liable for failure to provide good administration and a safe system of work in the care of patients in general and the deceased in particular. The hospital is vicariously held liable for the negligence of its doctors, clinical officers, nurses and other staff who handled the deceased.

6. The plaintiff listed the names of the beneficiaries as:-i.Mr. George Moga Husbandii.Mr. Collins Moga Son Born 15/12/1984iii.Ms. Lyvea Murevani Moga Daughter Born 11/10/1988ivMs Sarah Khal-esah Moga Daughter Born 11/10/1988vMs Laura Vihenda Moga Daughter Born 25/9/1990vi.Owen Mugesi Moga Son Born 16/6/1995

7. The plaintiff’s claim for damages is stated as:-a.The deceased was aged 40 years who enjoyed a vigorous healthy life. She operated and ran Pearls Academy School in Kangemi as a principal and earned an average salary of Kshs 20,000/= monthly. That this school has since been closed after the deceased died.b.She ran a hair salon in Kawangware where she resided and earned an average of Kshs 10,000/=monthly after paying off expenses. The salon has since been closed following her demise.c.Her total monthly income was Kshs 30,000/= and with take her income would have improved. She had several women groups where she derive Ksh10, 000/= and would spend Kshs 10,000/= on herself and Kshs 20,000/= on her dependants monthly.d.The deceased was 40 years old and would have worked till 70 years since she was self-employed and not in formal employment where retirement ages are limited and mandatory and would have worked for 30 years.

8. On particulars of special damages he stated that:-1. Nairobi Women’s Hospital bill paid Kshs 8,000/=2. Post mortem, embalming and storage Kshs 20,000/=3. Pathology fees Kshs 10,000/=4. Coffin Kshs 20,000/=5. Transport from Nairobi to Kitale Kshs 100,000/=6. Doctor’s Court attendance Kshs 20,000/=TOTAL Kshs 190,000/=

9. The defendants in response filed an amended joint statement of defence on 22nd April 2013 where they denied the plaintiff’s claim and stated that save that the 1st defendant’s doctors, clinical officers and nurses were entrusted with the medical treatment of the deceased in the 1st defendant hospital. The defendants deny that they were guilty of negligence or were negligent to use their reasonable care, skills and diligence in and about the manner in which they handled the deceased. The defendants’ state that the deceased went to the 1st defendant hospital on 10th July 2007 and on her arrival her blood pressure, pulse rate, temperature and weight were measured which turned to be normal save for the rate which appeared high. That she was attended to by the 2nd defendant who duly performed a historical examination on the deceased and also physically examined her chest and found that her chest was normal. However the 2nd defendant noted that she was in a depressed mood and dull which suggested that she was depressed. The 2nd defendant denied relying on previous medication by Dr Makonyango rather they asked her to continue with the medication that had been prescribed by Dr Makonyango because the deceased showed symptoms of psychiatric problem. They further added that they did not detect any new medical condition therefore they asked the deceased to continue with the medication before any other medication could be administered. They added that the action by the 2nd defendant was acceptable medical practice and reasonable in the circumstance having duly examined the deceased and booked the deceased for a psychiatric examination. The defendants added that when the deceased returned to hospital the next day, her pulse rate however had gone higher. The defendants further added that the 1st defendant also examined her chest and detected no abnormality with her chest. That he further performed a systematic examination based on the medical history of the deceased. That when the deceased showed difficulty in breathing, the 1st defendant admitted her to the hospital where she was put on oxygen but her condition deteriorated. At the ward the deceased was reviewed by another doctor, Dr Nderitu who examined the deceased and found that there was mild wheezing from the left lung which presented a mild asthmatic attack and hysteria due to a moody disorder and recommended that she be put on medication to de-congest her chest. She also telephoned the 4th defendant a psychiatrist to attend the deceased. The defendants further added that the 4th defendant Dr.Mucheru arrived by 8:30pm who examined the deceased thoroughly and noted psychiatric and chest conditions and prescribed both an anxiety reducing drug –diazepam and aminophylline that is targeted to treat the chest symptoms. This was to enable the deceased breath without difficulty .She also asked the physician be contacted to review the deceased later in view of the chest symptoms. The recommended treatment was commenced immediately but unfortunately she passed on two hours into the treatment. Save that a post mortem was done and cause of death was found to be acute col-pulmonale secondary to pulmonary thrombo-embolism, the particulars of negligence are denied as the deceased died without any negligence or default on the part of the defendants. The defendants further state that the deceased was properly examined both by the 2nd and 3rd defendants on both of her visits and found that her chest was in good condition at the times of examination, that the deceased’s symptoms on both examinations revealed a psychiatric problem, which was well attended to and treated on proper medication that would decongest her chest. They did not rely on the earlier diagnosis of Dr.Makonyango as alleged. That the deceased did need an x-ray as the chest examination being conducted on both occasions is usually sufficient. That the deceased’s condition worsened later after the 3rd defendant had examined her. That the eventual emergence of col-pulmonale was undetectable at the time of examining the deceased. He stated that the cul-pulmonale was inevitable because it was a manifestation of a pre-existing condition. They therefore pray that the suit be dismissed with costs.

10. The plaintiff filed his witness statements which were adopted during the hearing in court.

11. PW1 Dr. Joseph Ndungu a consultant pathologist at Kenyatta National Hospital testified that on the 13th July 2007 he did an autopsy on Joyce Adema. He is findings were that the deceased’s lungs were congested and when he dissected them they had a blood clot which he referred to as pulmonary thrombosis. The cause of death was acute Cul Pulmonale secondary to pulmonary thrombo embolism which is acute heart failure secondary to blood clot with the blood vessels of the lungs. He gave a review of the treatment given to the deceased from the hospital notes given to him by the plaintiff’s counsel and added that the blood test shows reduced concentration of oxygen and that if done, the treatment mode would have changed. His opinion was that the defendants should have investigated the patient’s respiratory area e.g by doing a chest x-ray or a CT –scan. He noted that no Hb was done. According to him a wrong diagnosis was made.

12. On cross examination Dr Ngungu stated that pulmonary thrombosis presents itself with dyspnoea and difficulty in breathing, chest pain and at times results in sudden unexpected death. He acknowledged that there was initial examination and being taken through the treatment notes of 10th July 2007 and 11th July 2007 where he gave his views.

13. PW2 Sarah Kaly-Esah Moga stated that the deceased, her mother was initially taken to Kenyatta National Hospital on the 9th July 2007 and seen by a doctor and given prescription of which they brought but when she took her medication she did not improve then she was taken to Nairobi Women Hospital on the 10th July 2007. Her late mother complained of chest pains and fatigue. Her condition worsened and when she was examined by a doctor on duty he concluded that she was healthy apart from her psychological problem and he gave them anti-depressants then they went home. On the 11th July 2007, the deceased was found to have passed out, she was returned back to the hospital .At the hospital she was not attended to despite the fact that she was in pain until a nurse who was seeing her gave her an oxygen mask which helped her breathing condition.She was later admitted at 11:20 am and a specialist was to come from Daadab to attend to her but there was no medical attention up to around 3:00 pm when a doctor put the deceased in a drip and told her to wait for the doctor from Daadab. At around 8:00pm the doctor came and examined her and said an x-ray be scheduled for the following morning. They left the hospital at around 9:00pm only to be called at 10:00pm that her condition was worse and on arrival they were informed that she had died. She further added in court in her testimony that the deceased was energetic, was not depressed and had never been admitted before.

14. On cross examination Sarah reiterated her evidence in chief admitted that her parents had problems like any other couple but insisted that her mother had difficulties in breathing and was not depressed.

15. PW3 Dr Joash Onyango Wambwaya a doctor practicing as a critical care physician made an analysis of the deceased’s care at the 1st defendant hospital after being presented with the deceased’s file. He gave a detailed statement which I summarise as follows;

16. The combination of the symptoms described by the patient was clinically pointing to a disease of the heart, lung and or blood and depression did not present with the symptoms described by the patient. That despite the patient complaining of difficulty in breathing and easy fatigability the respiratory rate was not determined by the nurse and the doctor.

17. The examination by Dr Wahome’s medical notes was that the vital signs were normal yet the blood pressure and pulse rate were both high indicating that normal pulse rate was between 60-100 bpm while the normal blood pressure systolic<130 and diastolic<85mmHg.A high blood pressure and a high heart rate are both indicators of a heart or lung disease and not depression. He stated that the expected evaluation of a patient who presented difficulty in breathing points towards a lung or heart disease and so the following examination would have been expected, a pulse oximeter to evaluate the level of oxygenation in her blood and an a chest x-ray, a CT pulmonary angiogram, blood gas analysis and an electrocardiogram. He also stated that the medication prescribed by the doctor were mainly directed towards treatment of depression and yet no depression symptoms had been presented nor specific tests were done to arrive at that conclusion therefore there was negligence in the handling of the patient. He stated that the patient’s heart rate was very high and the respiratory rate was not determined .That when the doctor admitted the patient it meant that the clinical presentation was worse than the previous day but no proper treatment was followed. That the doctor advised that a psychiatric specialist reviews the patient yet the patient had presented with persistent chest complaints and not psychiatric problems and should have been admitted under the care of a physician. He also added that Dr Kiragu in his notes wrote “Chest pain-left, sharp” and indicated that this pointed to a significant sign of heart disease but no drugs were prescribed to specifically treat the evident problem of dyspnoea and chest pains. He stated that a patient who was propped up in bed on oxygen by mask breathing heavily is a patient who obviously is in a state of impending respiratory failure and should have been transferred to an intensive care unit where respiration can be supported. That Dr Mucheru made an impression and bronchospasms and recommended that the patient needed a chest specialist to review the patient in the morning. The doctor found that the patient was very sick propped up in bed with laboured breathing indicating that the patient was not a psychiatric case. The reason the patient was hallucinating was because of the high dose Diazepam administered to thereby impairing her breathing and reducing her oxygen level in her blood. The hallucination was typical of a patient who had very low blood oxygen levels, a clinical state called hypoxia and the patient’s death meant that there was a terminal level of hypoxia. That the prescription given by Dr Mucheru of Diazepam is not a drug indicated in the treatment of depression but rather cause’s depression as a side effect. This drug causes sedation and a patient who was very sick, propped up in bed and with laboured breathing basically reduced the patient’s effort to breath and the patient may go into respiratory arrest and could die. He concluded that the patient died as a result of negligence and or incompetence of the doctors and nurses at Nairobi Women’s Hospital.

18. In his evidence in chief he testified that an X-ray if done could have ruled out other problems and helped to find out the cause of the breathlessness and no haemoglobin tests were done on the deceased. That the necessary medical tests to check on the lungs were not done and that the tests that were done by one doctor were ignored.

19. On cross examination, he admitted that taking the history of a patient is important and so is doing an examination on a patient. He explained his findings and gave his views on how the patient ought to have been treated and insisted that no medicine specific to the patient’s complaints were prescribed.

20. The defendants too filed their written statements which were adopted as evidence in chief in court.

21. DW1 Dr Gabriel Njue a doctor by profession and the chief officer of the 1st defendant hospital stated as follows. He stated that the patient was first attended to by a nurse who took records of her blood pressure, temperature pulse rate and weight and was a walk in patient and was not in an emergency state when she came in. That when the 2nd defendant attended to her she complained of fatigability heart beating fast and nausea and gave a history of difficulty in breathing. She informed the 2nddefendant that she had earlier seen Dr Makonyango the previous day because the deceased had displayed symptoms of a mild depression. He booked her for an appointment on 14th July 2007. The following day the deceased visited the hospital again. The nurse reviewed her and found that her pulse rate had gone higher to 120 per minute and a blood pressure normal at 130/80. She was attended to by Dr Kiragu. She still complained of chest pains which prompted the doctor to perform a systematic examination but still found no problem with her chest but recommended that the she be admitted and that a psychiatric review be performed on her and was admitted at 1:30pm.Her condition however deteriorated where she was put on an upright position and put on an oxygen mask. Dr Nderitu was called at 4:00pm who diagnosed her and found that she had a mild asthmatic attack and recommended that she be nebulised with Ventolin to help ease her breathing. That when the 4th defendant reviewed the deceased at 8:30pm she still had laboured breathing and was experiencing Broncho spasm and was hallucinating. The 4th defendant examined her chest and prescribed diazepam to sedate patient and remove anxiety. She also recommended that the patient be put on a drip with Aminophylline to run slowly for two hours to treat the bronco-spasm and also Artane which is an anti-depressant and recommended that a physician attends to the deceased. She however died an hour after the drip was over. It was his view that the deceased was well attended to at all-time whilst at the hospital’s care, that the symptoms that the deceased displayed in all examinations revealed a psychiatric problem which was treated by the 4th defendant. That the diagnosis of pulmonary thrombo embolism is usually a combination of several factors namely chest pains, dyspnoea and palpitations which symptoms are dependent on the severity of the embolism. He further stated that a patient would present a history of these factors; long travel, leg swelling current or past, recent injuries especially to pelvis or recent surgeries. That the possible findings in this scenario would include leg swelling or calf muscle tenderness engorged limb veins and cold peripheries.

22. During a rigorous cross examination Dr.Njue gave his opinion on the findings on Dr. Onyango together with the findings of the doctors at the hospital. In parts of his cross examination he stated that pulmonary thrombo embolism was not a disease that can be checked in the Kenya demographic disease survey. He agreed with PW3 that there were signs of pulmonary thrombo embolism but explained that one had to go ahead to interrogate the patient on whether they had long travel, recent surgery and leg swelling which the patient did not have. He denied that the doctors and nurses who attended the patient were negligent and that a rare diagnosis does not cross the mind of a health care giver. He admitted that it was dangerous to administer diazepham to a patient having difficulties in breathing. That the amount given is not more than 5mg/min and 10mg is repeated if necessary in not less than 4 hours. He stated that it was not proper to sedate a patient having problems in breathing.

23. DW2 Dr Benson Wahome an Ear, Nose and Throat surgeon stated that on 10th July 2007 at 11:25am he attended to the deceased who was complaining of dyspnea, easy fatigability, and palpitations and fainting episodes. After conducting a thorough medical examination he found that the patient suffered from mild depression and being in a stable condition he prescribed a continuation with the medication he had been given by Dr Makonyango. He further booked her for examination on 14th July 2007. He added that he exercised reasonable care skill and diligence by documenting her physical complaints, examining her condition in prescribing the continuation of the medications and booking her for a psychiatric review. That the symptoms of dyspnea, palpitations and chest pain were not specific or exclusive to pulmonary thrombo-embolism. That on examination of her chest he found that it was normal therefore there was no need for a chest x-ray, or any laboratory or radiological investigations at the time as there was no evidence of a physical illness and based on examination and lack of predisposing factors, pulmonary thrombo-embolism was not a likely diagnosis at the time he reviewed her.

24. In his further evidence in court he stated that having not found any physical symptoms that tied in what brought the deceased to them except a low mood, he concluded that the deceased had mild depression as previously diagnosed by the psychiatrist. He stated that having read the autopsy report he would have not married the symptoms stated by the deceased and got an obvious suspicion of pulmonary thrombo embolism.

25. On cross examination, he stated that he did a full examination of the chest, the three steps and found normal sounds that did not suggest a chest problem.

26. The 4th defendant, Dr Monica Mucheru stated that she received a call from a nurse at Nairobi Women’s Hospital requesting for a review on a patient but the patient’s condition as an emergency was not revealed to her in the call so as to call the second on call. That prior to the examination at 8:30 pm, the patient had been reviewed at 4:00 pm the blood pressure, temperature, pulse rate had been observed as normal. The working diagnosis then was a mild asthmatic attack, gastritis, anaemia to rule out hysteria in a patient with mood disorder. She further added that the patient was sick looking, propped up in bed, laboured breathing, restless had difficulty in establishing rapport and kept pointing at imaginary people who wore overalls. After examining the patient, a multiaxial diagnosis was arrived at that she had a conversion disorder, depression but with no personal depression or mental retardation and also had bronchospasm. She stated in her statement that she administered Aminophylline I.V 250mg in 5% dextrose to run over 2 hours to treat the rhonchi and decongest her chest. Diazepham 10mg start at once then repeated again 10mg tranquilization which was administered in her presence and was only repeated after evaluating the patient’s response. She stated that Fluanxol Depo 40mg and Artane 5mg was not administered.Her conclusion was that the patient had impaired in communication or inability to function in almost all areas. A physician was called to see the patient in the morning but she died before she could be seen by a physician. She concluded that the temporal relationship between the onset of her symptoms and the return of her husband points to the physical presentation of emotional distress. The patient had mental and physical symptoms presenting at the same time. That a physician was consulted on telephone and was to be part of the team taking care of the patient. The physchostressors could have made the physical symptoms worse. Given that a thorough history and examination was done physician consulted, the standards of care were met.

27. In her evidence in court she indicated that she checked if the patient lacked oxygen by checking her palms and soles of her feet and found that she had no such symptoms, on the respiratory system, the patient was in distress on and off. On using a stethoscope to examine the deceased, she heard abnormal sounds in her chest but did not hear crepitation which is sounds heard when someone had an infective process. The rest of the physical exam was normal. She stated that had she discontinued the anti-depressants it could have led to withdrawal effects from the drugs.

28. In cross examination, she maintained her evidence in chief gave her views on Dr Onyango’s report and stated further that the deceased presented symptoms of depression and that she did not give diazepham to cause sedation. She stated that the patient was not an emergency and recommended that Dr Wafula sees the patient after her finding, and that the patient was not an ICU case as it had been indicated that she had a mild asthmatic attack but if her condition had changed she would have had her sent to the ICU. She denied overdosing the patient.

29. DW4 Dr Simon Kigondu was an Obstetrician/ Gynaecologist consultant at the 1st defendant hospital. He stated he was called at 10:00 pm to resuscitate a patient who had changed condition and was gasping for breath and then went into apnea. They tried to do active cardiopulmonary resuscitation for 30 minutes but they were unsuccessful and he certified the patient dead at 10:30 pm and suggested that a post mortem be done on her. The rest of DW4 statement was a reiteration of Dr Mucheru’s findings. He concluded by stating that the chest pain could have been as a result of an asthmatic attack and the gastritis therefore the medication administered was useful to the treatment of the patient.

30. In his further evidence in court, he explained what mouth to mouth cross examination was and stated that they used a bag and a mask on the patient and not mouth to mouth.

31. On cross examination he stated that he maintained his evidence, he explained what he understood from the treatment notes.

32. The plaintiff filed his submissions on 27th February 2014. His counsel reiterated the contents in the amended plaint and the evidence in court as well as the written statements of the plaintiff’s witnesses. She submitted that the defendants misdiagnosed the deceased’s complaints of chest pains and dysponea to mean that she was depressed. She relied on Hutchinson’s clinical methods 21st Edition, box 3. 8 on features supporting diagnosis of depression which is loss of appetite, weight change, disturbed sleep, fatigue, loss of libido, bowel disturbance and slowing of activity which was not what the deceased exhibited. It was submitted that the defendants had a duty to examine the deceased and arrive at their own conclusion instead of relying on a diagnosis made by an outside doctor. She relied on the case of Herman Nyangala Tsuma v The Kenyatta Hospital Association t/a The Nairobi Hospital Dr James Mbuvi and Dr Ernest Kioko where it held that in establishing cause of negligence, one needed to demonstrate the existence of a duty of care, its breach and resultant injury/loss or prejudice. It was further submitted that the defendants assumed and owed a duty of care towards the deceased which was breached adding that the entire staff was negligent and failed to exercise the duty of care towards the deceased and failed to do what a reasonable medical practitioner would do in the circumstances. That according to the treatment notes when the deceased was dying the nurse wrote “mouth to mouth” resuscitation and relied on Dr Onyango’s submissions where he testified that patients are not resuscitated by “mouth to mouth” and that there are no other treatment notes to show any other methods used adding that a competent medical practitioner would intubate this patient.

33. The plaintiff’s counsel analysed in detail the drugs administered on the deceased which as per her submissions contributed to her death. One specific drug she mentioned was diazepham which according to Dr Onyango who testified on behalf of the plaintiff and the drug index showed that this particular drug caused sedation, vivid dreams etc. She submitted that had a chest x-ray been done it would have shown the condition of the lungs and the pulmonary artery and further added that if an EGC and blood gas analysis were done it would have helped in clarifying the deceased’s condition regarding her heart and level of oxygen since the deceased had palpitations and fainting episodes. In total her submissions are that the defendants misdiagnosed the deceased’s complains of chest pains and dysponea to mean that she was depressed. Counsel made an elaborate submission on the expected treatment, clinical discussion and appropriate test required in the diagnosis of pulmonary thrombo emboli (PTE) .She relied on various medical texts in her submissions.

34. On quantum of damages, the plaintiff submitted that prior to the decease’s death, she lived a vigorous robust life and operated Pearls Academy School where she earned a monthly salary of Kshs 20,000/-that she ran a saloon in Kawangware where she resided and earned an average of Kshs 10,000/-monthly after paying off expenses. Her total month income was an average of Kshs 30,000/=and joined several merry go rounds from which she derived an income of Kshs 10,000/-.The plaintiff further submitted that the deceased was 40 years old and should have worked till 70 years since she was self-employed and retirement age was not limited and prayed for judgment in favour of the plaintiff using a multiplier of 30 years with an income of Kshs 20,000/- which amounts to Kshs 7,200,000/-

35. On special damages the plaintiff’s claim is as follows:-a.Nairobi Hospital’s bill Kshs 20,000/-b.Post-mortem, storage and embalming Kshs 20,000/-c.Pathology fees Kshs 10,000/-d.Coffin Kshs 20,000-e.Transport from Nairobi to Kitale Kshs 100,000/-f.Burial Expenses Kshs 100,000/-TOTAL Kshs 270,000/-

36. On pain and suffering the plaintiff submitted that the deceased visited the defendant’s hospital for 2 days where she persistently complained of chest pains and difficulty in breathing .She was not given any pain killers to alleviate the chest pains therefore she wreathed in pain till her death. It was submitted that an award of Kshs 500,000/- and a doctor’s charges of Kshs 60,000/-.The final tally of the amount claimed is as follows:-a.Special damages Kshs 270,000/-b.Doctors Charges Kshs 60,000/-c.General damages for lost years Kshs 7,200,000/-d.Pain and suffering Kshs 500,000/-e.Loss of expectation of life Kshs 870,000/-TOTAL Kshs 9,000,000/-

37. The defendants filed their submissions on 21st March 2014. In their submissions they summarised the undisputed facts, the defendants’ evidence and reasons why the plaintiffs evidence and PW3 should be disregarded and not be afforded a high probative value addition to the following submissions. It is submitted that the deceased did not visit the hospital as a referral patient. That Dr Wahome’s advice that the patient to continue taking the depression tablets prescribed by Dr Makonyango was a standard practice for a doctor to recommend that a patient remains on medication prescribed by a previous specialist doctor until it runs its course that stopping the medication as prescribed by Dr Makonyango would have lead to withdrawal symptoms. That the doctors did not rely on outside diagnosis as it was the testimony of all them that they examined her and recorded their findings and therefore there was no failure at all by the defendants in exercising reasonable care, skill and diligence in handling the deceased. It was further submitted that the complaints by the deceased were investigated but added that a medical practitioner is not under a duty to investigate those complaints made by the patients only but must do a holistic investigation and in keeping with this the 2nd defendant reached a conclusion that the deceased was suffering from mild depression and not a heart disease. It was submitted that the chest x-rays may be used to detect causes of chest pains. However, where a physical examination by a physician does not disclose anything abnormal in the chest it is unnecessary to order for s chest x-ray. The defendants having done a physical examination of the patient found nothing abnormal there was no failure to exercise skill, knowledge and experience. The defendants submitted that the diagnosis of pulmonary thrombo embolism has been a challenge across the globe and can be missed because of nonspecific clinical presentation adding that the deceased’s complaints were not specific to pulmonary thrombo embolism. They relied on the report from the Kenya Medical Practitioners and Dentists that stated that “the cause of death was thrombo embolism which cannot be detected and there were no symptoms to indicate that the patient Joyce Adema had thrown emboli”. It was submitted that although the deceased died of pulmonary thrombo emboli the defendants were not negligent for not diagnosing the condition for reasons that the physical examination done by the doctors pointed to a mental condition as well as a physical one. That even if the diagnosis was wrong it would not mean that the doctors were negligent. They relied on Jackson & Powel on Professional Negligence 5th Edition at 12-177 where it is stated that, “if the diagnosis was incorrect often the sole question is whether the mistake was negligent ….the sole question is whether on the symptoms and material presented, a reasonable careful and skilful medical practitioner might have made the same mistake” stating that for the court to make a determination whether an incorrect diagnosis was negligent the court must have regard to all the circumstances at the time the diagnosis was made. The defendants also submitted that the 4th defendant administered the correct dosage for the drug diazepam and that there was no side effect on the deceased.

38. On the issue of the patient being diligently treated, the defendants submitted that the it was not enough to hold the defendant liable because some other practitioner of far greater experience or ability might have used a greater degree of skill or that even he might possibly have used some greater degree of care but the question is whether there has been any a want of competent care and skill to such extent as to lead to the bad result. They relied on the case of Lord President Clyde in Hunter v Hanley (1955) SLT 213 where it was held that, “there is simple scope for genuine difference of opinion and one man clearly is not negligent because his conclusion differs from that of other professional men nor because he has displayed less skill and knowledge than others would have shown” That from the evidence adduced it was clear that Dr Wabwaya Onyango holds a divergent view from those of the other doctors including Dr Ndungu who was called by the plaintiff. Dr Onyango relied on the records from the hospital and that he never saw the deceased while alive or after she died therefore his standard should not be the basis of judging negligence of the defendants. It was submitted that in order to succeed in an action for negligence as was held by Mulwa J in M (A minor) v Amullenga & another [2001] KLR 420 the plaintiff must prove :-a.That the defendant owes the plaintiff a legal dutyb.That the defendant was in breach of that dutyc.That as a result of the breach of that duty the plaintiff suffered damage.

39. They submitted that the plaintiff failed to prove that the defendants breached the duty of care therefore the allegations of negligence raised in the amended plaint to prove that a breach of duty has not been proved and that in deed there was no negligence at all on the part of the defendants.

40. On quantum, the defendants submitted that special damages must be specifically pleaded and strictly proved and relied on the case of William Kazungu Karisa v Cosmas Angore Chanzera [2006] eKLR. The defendants disputed the bill at the Nairobi Women’s Hospital as Kshs 13,200/- and not Kshs 20,000/- as stated in the amended plaint. The post-mortem, storage and embalming as Kshs 7,500/- and not Kshs 20,000/-as stated in the amended plaint. On transport to Kitale Kshs 68,000 and not Kshs 100,000/-and the burial expenses was not specific and the amount not stated. It was submitted that the plaintiff had only proved Kshs 118,700/- and that the defendants cannot be condemned to pay.

41. On general damages the defendants submitted that the amount of Kshs 500,000/- claimed by the plaintiff as pain and suffering was devoid of merit adding that the damages awarded for pain and suffering is dependent on the length of time that the plaintiff has suffered pain. They relied on the case of Benedeta Wanjiku Kimani v Changwon Cheboi & another [2013] eKLR where the court held that,“The general accepted principle is that very nominal damages will be awarded on this head (pain and suffering) if death followed immediately after the accident. Higher damages will be awarded if the pain and suffering was prolonged before death”In this case the deceased had died after four months following the accident and the court awarded his estate Kshs 200,000/-.In this case the deceased died 24hrs after visiting the hospital and that Kshs 10,000/- would have been sufficient.

42. On the loss of expectation of life, the defendants disputed the amount of Kshs 870,000/- and relied on the case of Betty Ngatia (Administrator of the estate of Gladys Waithira Ngatia) v Samuel Kinuthia Thuita [1999] eKLR where the court held that,“this claim is based on the principle that the deceased had been deprived of normal expectation of life due to the wrongful act of a tort feasor, in this case, the defendants. Awards under this case of damages vary from one case to another depending on the age of the deceased at the time of death…in my view the younger the deceased the greater the award”In this case the deceased was aged 40 years at the time she died and applying the principles stated the estate of the deceased would be entitled to a maximum of Kshs 50,000/- under this head.

43. On loss of years,the defendants submitted that there was no evidence that the deceased earned Kshs 20,000/- from Pearl Academy and also that there was no proof that she had a salon where she earned an income of Kshs 10,000/-.It was submitted that if the deceased’s earnings were Kshs 20,000/- then the said income must be taxed.

44. The defendants proposed that for general damages the plaintiff was entitled to the following in the event that he succeeded in his claim:-a.Pain and suffering Kshs 10,000/-b.Loss of expectation of life Kshs 50,000/-c.Damages for loss of years Kshs 1,212,500/-

Determination 45. I have considered the pleadings; the evidence as well as the submissions and authorities relied on. The issues for determination in this suit are as follows;-1. Whether the defendants were negligent in the treatment of the deceased.2. Whether the plaintiff is entitled to the relief sought.

46. The plaintiff’s case against the defendants is that of negligence. In order to succeed in negligence the plaintiff must prove that there was a duty of care owed to deceased by the defendants that there was a breach of that duty of care and that the breach of duty resulted in damage to the plaintiff which was not remote. 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 .The law requires a doctor to exercise such degree of care as any skilful member of his profession may reasonably be expected to exercise. A doctor like any other professional must exercise such skill and care. In the case of R v Batemen (1925)94 L.J KB 791 the court enunciated this when it held that,“If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge by or on behalf of patient ,he owes a duty to the patient to use due caution in undertaking the treatment and the patient submits to his direction and treatment accordingly, he owes the duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment”

47. The 2nd defendant Dr Wahome is an Ear, Nose and Throat surgeon and a consultant at the 1st defendant hospital. It is not in dispute that he was the first doctor to attend to the deceased. He stated that he did a thorough and complete examination of the patient on 10th July 2007 after she complained of dysponea, easy fatigability, palpitations and fainting and found that she had mild depression. It is his averment that the findings were keeping with the prior diagnosis by Dr.Makonyango .He averred that he prescribed a continuation with the medication she was already on. That the symptoms of dyspnea, palpitation and chest pain were not specific or exclusive to pulmonary thrombo embolism. The 2nd defendant being the first doctor to treat the deceased set the ball rolling in determining the deceased’s ailment .On the night he attended to the deceased, he noted her complaint and released her having formed the opinion that she had a mild depression despite her complaints. It is evident that he did not change the medication for reasons that the deceased had been examined by a consultant. Being the first doctor who attended to the deceased it was his duty to make the appropriate examination which he claims he did. In my view, the 2nd defendant chose to follow the diagnosis of Dr Makonyango and did not conduct his own proper diagnosis on the deceased. I say so because despite the patient complaining of breathlessness and pain in her chest and fainting episodes and mood disorder, he selectively picked the last mentioned complaint of the patient’s mood disorder and recommended the patient be booked for psychiatric review and he did not take time to find out whether she had a problem with her chest and heart other than the depression she suffered from. I also note that she was not a referral patient because there are no treatment notes from Dr Makonyango.PW3 stated that when the deceased opted to visit the 1st defendant hospital, she needed a different opinion .I do agree with the observations of PW3 on this and add that the 2nd defendant being the first doctor to attend to the patient ought to have done a proper independent examination on the patient. Had he obtained a proper diagnosis from the patient he would have noticed that other than depression, the deceased needed urgent treatment to ease the pain in her chest and the breathlessness. In Djemal v Bexley Health Authority [1995]6 Med.L.R 269 Sir Haydn Tudor Evans held that, “….it is the duty of an examining doctor and that includes a casualty officer as an essential preliminary to making a diagnosis to obtain a proper history and that it is not correct medical practice to simply accept what is related by the patient or the person speaking for him”.

48. In the case of Marriot v West Midlands Regional Health Authority [1999] Lloyd’s Rep. Med. 23, CA the court held that, “A general practitioner was negligent for failing to give sufficient weight to the patient’s complaints and symptoms following a fall and head injury and relying on too much on the results of neurological tests leading to a missed diagnosis of skull fracture resulting in extradural haematoma and hemiplegia.” The 2nd defendant therefore did not pay attention or give sufficient weight to the symptoms the deceased had. This is buttressed further by the report in PIC Case No 32 of 2013 Betty Rashid & Co Advocates on behalf of the Family of the Late Joyce Adema v Nairobi Women’s Hospital dated 24th October 2013 where the Medical Practitioners and Dentist Board made a finding that the 2nd defendant failed to properly assess the patient hence he did not recognise how seriously ill the patient was. It is therefore my finding that the 2nd defendant did not conduct proper diagnosis on the deceased but chose to rely on the diagnosis of Dr. Makonyango.

49. On the 3rd Defendant, I find as follows; He is an obstetrician/Gynaecologist with 12 years’ experience. He stated that he was called at 10:00 pm on the 11th July 2007 to assist in the resuscitation of the deceased whose condition had worsened and had gasping breathing and then went into no breathing. He tried to resuscitate for 30 min but was unsuccessful. At 10:30pm her pupils were noted to be fixed and dilated and he certified the deceased dead at 10:30pm.The report from the Medical Practitioners and Dentist Board made a finding that the 3rd defendant appeared to have been asked to sustain the deceased. He did not prescribe any medication. I agree with the report that the 3rd defendant was called in to sustain the deceased and therefore I do not find the 3rd defendant negligent and the plaintiff’s suit against him is dismissed with costs.

50. The 4th Defendant, a psychiatrist by profession of 11 years stated that she attended to the patient at 8:30 pm. She interviewed the deceased’s relatives on her mental condition and on observation found that the patient was very sick, propped up in bed, laboured in breathing and was talking about three people with overalls visiting her and forcing her to iron. I note the following; at about 4:00pm the same day Dr. Nderitu had seen the patient when her condition was said to have gotten worse and his impression was that she had a mild asthmatic attack, gastritis, anaemia. It is evident that Dr Mucheru appears not to have followed up on the treatment plan of Dr Nderitu who recommended a Hb and nebulization on ventolin .Despite finding the patient as she did she opted to administer treatment on depression .Her impression was that the patient was depressed and had bronchospasm. She prescribed aminophylline to treat the bronchi and decongest her chest and diazepam 10mg at once then repeated again which was administered in her presence. She averred that she called a physician to check on her in the morning. What I note is that the 4th defendant was called by a staff at the 1st defendant’s hospital at 3:00pm to check on the deceased but she responded to the patient at 8:30p.m five hours later instead of explaining that being in Daadab the distance between her and the deceased needed the intervention of another doctor. This would have in fact paved way for the 1st defendant to get a second doctor on call to attend to the deceased. She claimed that the nurse didn’t tell her that the patient was serious. It is my view that when a patient of such condition as the deceased is attended to in any hospital and doctors who uphold their Hippocratic oaths, a doctor must take each patient with the seriousness they deserve this being the duty of care and consider that every patient in a hospital needs an emergency intervention until they are well enough to be discharged this being the standard of care. Further, even after the 4th defendant has realised that the deceased was very sick as has been exhibited in the treatment notes, she recommended that a physician be called in the morning rather than immediately to save the situation. It was her testimony in court that she did not find that the patient was an emergency case. However the question this court asks is how can a doctor indicate in her notes that the patient was very sick then conclude that she was not an emergency case? This confirms that the deceased was suffering from another condition other than mental depression. Having studied the treatment notes, it is evident to me that the deceased did not tell Dr Wahome, the first doctor who attended to her that she had mood disorders but rather she complained of dysponea and chest pain. The report from the Medical Practitioners and Dentist Board indicated that the 4th defendant failed to make arrangements for the patient to be seen while she was away in Daadab and when she saw the patient at 8:30pm she did not asses the patient’s condition. It was her duty to find out from the hospital staff the condition of the patient before she committed to attend knowing very well that she was out of Nairobi. It is apparent that the hospital staff opted to wait for her to attend to the patient and all this while the patient’s was deteriorating for by 4:00pm. Dr Nderitu who was called to review the patient made the following observations; that the patient was popped up in bed, was on oxygen by mask and breathing heavily, his impressing was that there was a mild asthmatic attack, gastritis and sough for a Hb and ordered the patient to be nebulised the patient with ventolin . Did Dr Mucheru take time to study the results of this HB test? It appears not. I further note that, it was her duty to carefully consider what Dr. Nderitu had sought to do at 4:00pm and in addition make a recommendation that Dr Wafula sees her immediately. The drug she administered Diazepham appears to be a drug that is used to sedate patients who were anxious and restless. From the testimony of DW1 that this drug was by the medical standards to be administered at 5mg/min when starting a advise and an addition of 10mg/min after 4 hours with the observation of a doctor this was not the case with the 4th Defendant for she stated that she administered 20mg/min to the patient. It was further observed by DW1 in his testimony in court that it was not proper to sedate a patient with breathing problems but the 4th defendant in her observation was that she administered the drug to calm the patient and the final result was her death after an hour of the drug being administered. It is therefore my finding that the 4th defendant owed the deceased a duty of care which she failed to give and thus negligent in her duty. The exercise of reasonable skill and care required that the doctor ought to take necessary steps as soon as possible to ensure the patient gets the best possible treatment whenever the patient’s condition requires so especially when there is no hindrance to the facilitation of such treatment.

51. What was expected of the doctors at the 1st defendant’s hospital was to take note that despite the deceased coming back to hospital a day after being attended to she needed further diagnosis as she a consistent complaint of chest pain and disponea. It would appear that Dr. Nderitu began a proper investigation which was ignored by the subsequent doctor. It is therefore my finding that in not taking any action in the two days she was at the hospital the hospital staff did not exercise reasonable care and skill in the circumstances of this case.

52. The deceased’s cause of death is not in dispute that she died as a result of Pulmonary thrombo embolism (PTE). All doctors who testified agreed that it is not easy to detect however, it is my view that the 2nd and 4th defendants failed to investigate the causes of the chest pain and breathless the deceased complained of. Even if there were psychiatric manifestations in the patient the symptoms of chest pains ought to have been taken seriously as her condition became worse and that caused her admission and review by doctors.

53. The 1st defendant is vicariously liable for acts of the 2nd, and 4th defendants’ .The 2nd and 4th defendant’s from their statements stated that they were employed by the 1st defendant. In the case of Cassidy v Ministry of Health (1951) 2 KB 343 Lord Denning L.J held that “In my opinion authorities who ….a hospital…..are in law under the self-same duty as the humblest doctor wherever 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 which they employ and if their staff are negligent in giving the treatment they are just as liable as is anyone else who employs others to do his duties for him”

54. The hospital authorities are liable for breach of duty of its members of staff of a duty owed to a patient because the doctors having received and taken under their care patients are servants or employees of the 1st defendant and therefore any negligence in the performance of the doctors duties will make the 1st defendant vicariously liable. The 1st defendant is therefore held vicariously liable for the actions of the 2nd and 4th defendants.

55. Before I make a determination on the damages, I must express my views on the findings of the Medical Practitioners and Dentist Board.I note that before coming to court, the plaintiff had lodged a complaint at the Medical and Dentist Board and after the parties made their submissions a finding was done by the Board. The Board has professionals who are experts in the medical field therefore their findings and recommendations were vital. However, I note that the Board contradicted itself in the findings and recommendation in the report. What would have been expected of them being professionals is a consistent verdict between their findings and recommendations. In their findings they state the following under the heading ‘Findings’i.The patient was admitted at 11:45 pm and was seen by Dr.Kigondu and Dr Nderitu.ii.She was seen by Dr. Mucheru at 8:30pm and died at 10:30pmiii.On 10th July 2007, Dr Wahome failed to properly asses the patient hence he did not recognise how seriously ill the patient was.iv.Dr Mucheru failed to make arrangements for the patient to be seen while away in Daadab When she saw her at 8:30pm she did not asses the patient’s condition .Her written statement of 18/6/2013 is more detailed than her statement dated 11/2/2007v.Dr Kigondu appeared to have been asked to help with sustaining only.

56. The Board’s recommendation was as follows:i.That the cause of death was thrombo embolism which cannot be detected and there was no symptoms to indicate that the patient Joyce Adema had thrown emboli.ii.That the cause of death was acute col-pulmonale secondary to pulmonary thrombo embolismiii.That the doctors were not negligent in the management of the late Joyce Adema.

57. The findings of the Board contradict their recommendations as their findings clearly show that the two doctors, Dr Wahome and Dr Mucheru failed to exercise the duty of care expected of a doctor. The word failure as per Black’s Law Dictionary 9th Edition means an omission of an expected action, occurrence or performance. The word fail as per Oxford advanced Learners Dictionary of Current English means to omit, neglect ,not remember (or choose).The Board’s recommendations were only on the cause of death not their findings. The defendant cannot rely on the Board’s recommendation and ignore the findings.

Damages as claimed by the plaintiff. (a) Pain and suffering: 58. The deceased was aged 41 years at the time she met her death. This is evidenced by the death certificate that was produced by PW2. The plaintiff’s counsel submitted that the deceased was at the hospital for 2 days with persistent pain and difficulty in breathing and was not on any painkillers. She therefore proposed an award of Kshs 500, 000/- on this head. The defendants on the other hand submitted that damages awarded for pain and suffering was dependent on the length of time that the Plaintiff suffered pain. In the case of Benedeta Wanjiku Kimani v Changwon Cheboi & another [2013] eKLR, Emukule, J held that “The general accepted principle is that very nominal damages will be awarded on this head (pain and suffering) if death followed immediately after the accident. Higher damages will be awarded if the pain and suffering was prolonged before death.”

59. I will find that in this instance the deceased had been in pain for two days and therefore an award of Kshs 100, 000/- is fair.

(b) Loss of Expectation of Life: 59. There is no evidence that she suffered from any ailment that would have shortened her life. The plaintiff’s counsel suggested an award of Kshs 870, 000/- she did not however rely on any decision to support the figure she arrived at. The defence counsel suggested an award of Kshs 50, 000/- . The claim for loss of expectation of life is maintainable under the Law Reform Act. In the case of Betty Ngatia (Administrator of the estate of Gladys Waithira Ngatia) v Samuel Kinuthia Thuita [1999] eKLR the Court held that, “……this claim is based on the principle that the deceased had been deprived of normal expectation of life due to the wrongful act of a tort feasor, in this case, the Defendants. Awards under this case of damages vary from one case to another, depending on the age of the deceased at the time of death… in my view, the younger the deceased, the greater the award” In that case, the court awarded the estate of 19 years old deceased Kshs 100,000/-.

60. In my view, a sum of Kshs 150, 000/- is reasonable compensation considering that this case was decided 16 years ago.

(c) Loss of years 61. As earlier noted, the deceased was 41 years old at the time she met her death. The plaintiff’s counsel argued that she might have lived till she attained the age of 70 years. She further submitted that she was employed and was operated Pearls Academy School in Kangemi and earned a monthly salary of Kshs 20,000/-, she ran a saloon at Kawangware where she earned Kshs 10,000/- monthly and engaged in several women merry go rounds where she earned Kshs 10,000/- a month. She also averred that the deceased was self-employed would have worked till 70 years therefore she would have worked for 30 more years. On the other hand, the defence counsel argued that the Plaintiff failed to prove that the deceased was running a hair salon in Kawangware therefore the court cannot include this figure in calculating her income. The defendants further submitted that the Plaintiff failed to prove that indeed she earned Kshs 20,000/- from running Pearls Academy and that the only document adduced in support of this allegation was a letter from her husband indicating that her salary had been increased to Kshs 20,000/-. The defendants proposed that there should be no award on this head.

62. I also note that there was no evidence adduced to support the claim that the deceased ran a saloon business in Kawangware and also no evidence of the merry go rounds was tabled in court .I would therefore not consider the alleged Kshs 10,000/- from the salon and the 10,000/- the merry go rounds. However the salary from Pearls Academy has been proved in the letter in increment by the director of the school. Taking into account the vicissitudes of life, I adopt a multiplier of 25 years. The deceased’s salary as per the letter from Pearls Academy was Kshs 20, 000/-. This amount was subject to tax of Kshs 4,000/-.The deceased had five children who relied on her. Therefore the deceased spent 2/3 of her income towards maintenance of her family. I will therefore compute the claim for loss of dependency as follows:-16,000 x 12 x 25 x 2/3 = 3,200,000/-

(d) Special Damages: 63. The defence counsel disputed the claim on special damages. The plaintiff produced several receipts to prove her claim for special damages as follows:Deposit on transport Kshs 20,000/-Balance on transport Kshs 48,000/-Hospital bill for Nairobi Women’s Hospital Kshs 8,200/-Embalming /storage Kshs 5000/-Early dispatch of the body Kshs 5000/-Post mortem charges Kshs 5000/-Coffin Kshs 20,000/-Transport of Mourners by Montezuma and Monalisa Kshs 32,000/-Pathology fees Kshs 10,000/-Doctor’s attendance in court Kshs 20,000/-TOTAL Kshs 173,200/-

64. It is trite law that special damages have to be specifically pleaded and strictly proved. I adopt the Court of Appeal decision in Court of Appeal in Hahn v Singh, [1985] KLR where the Learned Judges of Appeal held, “Special damages must not only be specifically claimed (pleaded) but also strictly proved….for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” The plaintiff claims burial expenses. This sum was not specifically particularized and pleaded in the amended plaint These was just a lump sum claim generalizing burial expenses and the same is rejected. The total claim for special damages is therefore Kshs 173,000/-

65. The total award of damages will be as follows:-1. Pain and suffering - Kshs 100, 000 /-2. Loss of expectation of life - Kshs 150, 000 /-3. Loss of years - Kshs 3, 200, 000 /-4. Special damages - Kshs 173,200 /-TOTAL = Kshs 3,623,200 /-

66. I therefore enter judgment for the plaintiff against the 1st, 2nd and 4thdefendants jointly and severally for Kshs 3,623,200 /- plus costs and interest from the date of judgment. I apologise to the parties for the delay in delivering this judgment. This was because of unavoidable circumstances and the workload that the court had to deal with.

67. It is so ordered.

DATED SIGNED AND DELIVERED THIS 16TH DAY OF JANUARY 2015. R. E. OUGOJUDGEIn the presence of;…………………………………………..…….………….For the Plaintiff……………………………………………….1st 2nd 3rd and 4th Defendant………………………………………..………………………..Court Clerk