[2020] KEHC 7803 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 364 OF 2010

PETER MULE MUTHUNGU (Suing as the administrator and personal

representative of the estate ofJANE MUENI NGUI.......................PLAINTIFF

-VERSUS-

KENYATTA NATIONAL HOSPITAL...........................................DEFENDANT

JUDGMENT

1. Peter Mule Muthungu the Plaintiff herein, in his capacity as the administrator and personal representative of the estate of Jane Mueni Ngui, deceased filed a compensatory suit by way of the Plaint dated 13th July 2010 against Kenyatta National Hospital, the Defendant herein in which he sought for inter alia for general and aggravated damages for professional negligence which led to the death of Jane Mueni Ngui. The Defendant filed a defence to deny the Plaintiff’s claim.

2. When this suit came up for hearing, the Plaintiff (PW2), testified and summoned Dr. Peter Muriuki Ndegwa (PW1) to testify in support of his case. The Defendant summoned two witnesses namely: Anthony Atuke Oliso (DW1) and Dr. Kagema Francis (DW2) to testify in support of its case.

3. Peter Mule Muthungu (PW2) adopted the contents of his witness statement dated 22nd February 2016 as his evidence in chief. He stated that on 14th January 2009, Jane Mueni Ngui, his late wife was referred from Guru Nanak Ramagarlia Sikh Hospital with a diagnosis of inevitable abortion at 24/40 to Kenyatta National Hospital (Defendant) for treatment and management. PW2, said that at Kenyatta National Hospital, a diagnosis was made that the baby had died and nothing could be done. He stated that to his surprise, his wife actually delivered a live baby girl who was taken to newborn nursery but the baby later on passed away.

4. The Plaintiff further stated that his late wife was admitted at the maternity wing while she was in high spirits though she experienced abdominal pain. PW2 also stated that after delivering the baby, his wife bled profusely. He said he was barred by the hospital staff from accessing her and was forced to leave for home.

5. PW1 further said that when he came back the next day he found his wife had been taken to ICU where she spent 14 (fourteen) days before being taken to maternity ward where she passed away on 14/5/2009.

6. The Plaintiff stated that on 17/1/2009 he was informed by the Hospital staff that his baby girl has passed away. He said he has never been shown the body of the child neither has he been informed of where the body was taken.

7. PW2 stated he later took out letters of administration in respect of the estate of Jane Mueni Ngui, deceased. He produced a copy of the grant of letters of administration as an exhibit in evidence. PW2 also produced as exhibits in evidence the transfer letter from Guru Nanak Hospital, the death certificate of Jane Mueni Ngui, the marriage certificate, the deceased’s pay slip, the demand letter and the treatment notes.

8. The Plaintiff stated that the postmortem report shows that the deceased’s treatment was mismanaged by Kenyatta National Hospital.

9. Dr. Peter Muriuki Ndegwa (PW1) told this court that he together with Dr. Andrew Gachie and Dr. Kiama Wangai participated in the postmortem operation on the body of Jane Mueni Ngui, deceased on 28/5/2009 at Kenyatta National Hospital. He produced postmortem report, which was written by Dr. Andrew Gachie as an exhibit in evidence.

10. PW1 stated that the cause of death was recorded to be respiratory failure due to pneumonia due to cerebral infarction due to postpartum haemorrhage. He produced the autopsy report as an exhibit in evidence.

11. PW1 further stated that the theatre notes shows that the doctors at Kenyatta National Hospital removed the deceased’s uterus.

12. It is also the evidence of PW1 that the deceased’s brain got low oxygen. The Plaintiff also submitted the findings of the preliminary inquiry committee of the medical Practitioners and Dentists Board over a complaint filed by the Plaintiff on behalf of the deceased against the Defendant.

13. The aforesaid preliminary report was presented before the full Board of the Medical Practitioners and Dentists Board and adopted on 9/3/2016. Some of the findings were:

First, that the correct diagnosis was made and the plan of management at the initial contact was appropriate.

Secondly, that there was delay in the delivery of the patient who was already noted as fully dilated. It was also found that there was a fifteen (15) hour delay in instituting alternative intervention.

Thirdly, there was lack of coordinated emergency response to the obstetric emergency after the delivery of the foetus and the diagnosis of retained placenta and post-partum haemorrhage. It is noted that it took over an hour to take the patient to theatre thus compromising her hemodynamic status leading to hypovolemic shock and subsequent cardiac arrest.

Fourthly, that the care of the patient in the ward was wanting. It is pointed out that despite the patient having a wet congested chest, she was not suctioned as frequently as required thus occasioning recurrent injections.

14. The 1st Defendant’s witness, Anthony Atuke Otiso (DW1), adopted the contents of his written witness statement. He stated that the deceased was admitted to ICU on 15/1/2009 after undergoing examination under anesthesia and subtotal hysterectomy due to postpartum hemorrhage in shock.

15. DW1 stated in detail the ICU management given to the patient from admission until her transfer to the maternity ward. DW1 also gave in detail the medications administered to the patient while in ICU.

16. It is the evidence of DW1 that the patient (deceased) was transferred to the labour ward after four (4) days i.e 19/1/2009.

17. In cross-examination, DW1 stated that he was with the patient in the theatre and that he does not know what happened to the patient while in the ward. He stated that the patient was pale when she was wheeled to the theatre and that breathing was machine assisted.

18. The other witness who testified in support of the Defendant’s case is Dr. Kagema Francis (DW2).

19. He stated that he saw the patient in the labour ward in a pool of blood at 8. 00 pm on 14/1/2009 while doing his evening rounds. DW2 said that the patient had delivered at 6. 35 pm to a female infant weighing 900 gms and was taken to the newborn unit for care due to prematurity.

20. DW2 further stated that the deceased retained the placenta and normal removal was attempted but was unsuccessful as it was adherent and coming out piecemeal.

21. He also said that the patient was in haemorrhagic shock and was on IV fluids, hemacel and blood.

22. DW2 claimed that he quickly galvanized the team into action to assess her in theatre for examination under anaesthesia and surgery. He further stated that subtotal hysterectomy was subsequently done and homeostasis achieved and urine draining and that the patient was taken to intensive care unit while still in intubated for critical care.

23. DW2 stated that the patient got cardiac arrest which lasted for 15 minutes but they managed to resuscitate her. He however said that if one gets cardiac arrest lasting for more than 5 minutes one may get brain damage.

24. DW2 narrated that a surgery was done on the deceased’s abdomen where they found a lot of blood. A defect of the uterus was also discovered and that a decision was made to remove the uterus to save the patient’s life.

25. DW2 confirmed what PW1 said that it was initially stated that the baby was dead only for the patient to deliver a live a baby girl.

26. DW2 admitted that if they knew that the baby was a live they would have done something better.

27. He also admitted that there was delay in properly managing the patient. He said that there was delay in taking the patient to the theatre. DW2 stated that the Hospital gave its best under the available circumstances.

28. At the close of evidence, learned counsels appearing in the matter were invited to file and exchange written submissions. Having considered the evidence, the submissions and the authorities, the following issues commend themselves for determination by this court:

First, whether the Plaintiff established professional negligence on the part of the Defendant.

Secondly, whether the Plaintiff is entitled to damages for breach of professional negligence.

29. On the first issue touching on liability, it is the submission of the Plaintiff that he proved that the Defendant is guilty of professional negligence. It was pointed out that the Defendant admitted that it mismanaged the deceased in a negligent manner and that it even intimated to her that her unborn baby was dead, a fact which turned out to be untrue.

30. The Defendant is of the opinion that it did everything possible to save the life of the patient. The Defendant pointed out that the ruling of the medical practitioners and Dentists Board dated 12th July 2016 had exonerated it by stating that the Defendant did the right thing.

31. It is not in dispute that the late Jane Mueni Ngui died after undergoing a surgery at Kenyatta National Hospital. In the case of Wishaminya Vs Kenyatta National Hospital Board [2004] 2 EA 351, it was held inter alia:

“The duty of care to a patient is a fundamental one and a hospital is expected by its very nature to take all reasonable steps that a patient especially in the causality wing receives emergency care...... In the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because the conclusion differs from that of the other men. The true test of establishing negligence and treatment on the part of the doctor is whether he has been proved to have been guilty of such failure as no doctor of ordinary skill would be guilty of it acting within ordinary care.......

In addition to proving negligence, a claimant must prove that the negligence caused the loss of which he complains. In other words, in medical negligence, the claimant must prove that had there been no negligence, the injury, loss and damage of which he complains of would have been avoided or at least have been much less.”

32. The Defendant being a medical facility admitted the deceased to its facility on 14/1/2009. A duty of care and implied contractual obligation therefore arose between the Defendant and the deceased to wit that the Defendant’s servants and or agents would exercise all reasonable skills and care ascribed to them to ensure the safety and care of the deceased.

33. It is clear from the evidence presented by the Plaintiff and his witnesses that the Defendant mismanaged the deceased in a reckless manner. The medical practitioners and Dentists Board in its ruling of 12th July 2016 indicted the Defendant for being negligent. There was a clear evidence showing that the Defendant delayed in taking the deceased to the theatre.

34. DW2 admitted that the hospital delayed in taking the patient to the theatre. It was also shown that there was lack of coordinated emergency response to obstetric emergency after the delivery of the foetus and the diagnosis of retained placenta and postpartum haemorrhage. It is further apparent from the evidence that the hospital subjected the baby to obstructed labour for a long duration of time unattended and as a result endangering her life.

35. The Defendant also failed to inform the father that the child had passed on and disposed of the remains of the child without the father‘s consent. The Defendant’s witness, DW2 admitted while testifying before this court that there was delay in properly managing the patient.

36. In the end, I find the Defendant guilty of professional negligence.

37. The second issue is on quantum. It is the submission of the Plaintiff that as a result of Defendant’s negligence the estate of the deceased has suffered hence it should be compensated. The Plaintiff asked this court to award him as follows:

i)Lost years: It is suggested that the deceased who was aged 29 years at the time of death would have worked up to the age of 60 years hence she lost 31 years. It was pointed out that the deceased used to earn ksh. 10,000/= per month as shown in the pay slip which was produced as an exhibit in evidence. For lost years the Plaintiff sought to be paid Ksh. 3,720,000/= less 30% tax of 1,116,000/= tabulated as follows:

10,000 x 12 x 31 = 3,720,000/=

Less tax ksh 1,116,000/=

Net Total Ksh 2,604,000/=

On this head, the Defendant stated that the document presented does not show how much the deceased was earning per month hence no award should be made.

38. I have looked at the deceased’s pays slip for the month of January 2009 and it is clear that the deceased was an employee of St Joseph Catholic Church earning a gross sum of Ksh. 10,000/=.

There were three statutory deductions namely:

N.S.S.F.... ............Ksh 200/=,

NHIF .................. Ksh 220/=

PAYE ..................Ksh 880/=.

The total statutory deductions is Ksh. 1,300/=. The net pay the deceased took home was therefore Ksh. 8,700/=.

39. I am satisfied that the Plaintiff is entitled to the claim on this head of lost years. When calculating the amount it is also important to take into account ratio . It is presumed that the deceased would have spent two thirds of her salary on the family.

A multiplier of 31 years as proposed by the Plaintiff is reasonable. I award the Plaintiff a sum of Ksh. 2,157,600/= for lost years tabulated as follows:

8,700 x 12 x 31 x2/3 = Ksh. 2,157,600/=

40. ii) Pain And Suffering

The Plaintiff beseeched this court to award him Ksh. 10,000,000. He urged that the deceased died after being unconscious for five months and having spent 15 days in ICU and having suffered severe bedsores due to poor nursing. The Plaintiff also asked to be paid Ksh. 1,000,000/= for the loss of baby Faith.

41. The Defendant argued that awards on this head should be moderate. The Defendant proposed a sum of Ksh. 500,000/= as reasonable. It is not in dispute that the deceased spent 15 days in ICU and thereafter she became unconscious for 5 months before her demise. She also suffered severe bedsores.

She must have felt great pain. Apart from suffering pain she also must have felt pain for the loss of her baby. I will award the Plaintiff a sum of Ksh. 2,000,000/= being reasonable figure.

42. iii) Loss of expectation of life

The Plaintiff proposed to be paid a sum of Ksh 150,000/= on this head. The Defendant is of the submission that a moderate figure should be given but it did not suggest which amount. The conventional award made by the courts on this head over time has remained at Ksh. 100,000/=. I find no compelling reason to depart from the conventional figure. I therefore award the Plaintiff Ksh. 100,000/= for loss of expectation of life.

43. iv) General Damages for professional negligence

The Plaintiff proposed to be paid a sum of Ksh. 4,000. 000/= on this head. The Defendant did not address this court over the claim on this head in its written submission. I however find the Plaintiff’s proposal to be on the higher side. I think a sum of Ksh. 2,000,000/= is reasonable hence the same is awarded.

44. v) Aggravated damages

This court was urged to award the Plaintiff Ksh. 150,000/= on this head. The Defendant again, did not address this court over this claim. Having considered the evidence and the submissions presented by the Plaintiff, I find no justification to make the award. I decline to grant the prayer.

45. vi) Special damages

The Plaintiff pleaded to be paid KSH. 216,000/=

The Defendant urged this court not to grant the Plaintiff the sum claimed arguing that there was no evidence presented to prove the claim. With respect, I agree with the Defendant’s submission. Though the Plaintiff pleaded to be paid Ksh. 216,000/=, he however failed to specifically prove the same. Special damages must be pleaded and specifically proved. The Plaintiff having failed to prove the same, I decline to award him the same.

46. In the end, Judgment is entered in favour of the Plaintiff and against the Defendant. Consequently the Plaintiff is awarded is follows:

i) General damages for professional negligence.

...... .............................................. Ksh. 2,000,000/=

ii) Lost years ............................... Ksh 2,157,600/=

iii) Pain & suffering...................... Ksh. 2,000,000/=

iv) Loss of expectation of life............ Ksh. 100,000/=

Gross Total Ksh. 6,257,600/=

v) The above awards to attract interest at court rates from the date of Judgment until full payment.

vi) The Plaintiff to have costs of the suit.

Dated, Signed and Delivered at Nairobi this 28th day of February, 2020.

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

J.K. SERGON

JUDGE

In the presence of:

……………………………. for the Plaintiff

……………………………. for the Defendant