[2017] KEHC 1339 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 517 OF 2011

PRISCAH NJERI KAMAU..........................................................PLAINTIFF

(Suing as Administrator and personal representative

of theEstate of Nicholas Gideon Kamau)

- V E R S U S –

DR. RAYMOND O. OIGARA.............................................1ST DEFENDANT

DR. BILLY FREIDA...........................................................2ND DEFENDANT

ST. MARYS RIFT VALLEY, MISSION HOSPITAL..........3RD DEFENDANT

JUDGEMENT

1. Priscah Njeri Kamau in her new capacity as the admintratix and personal representative of the estate of Nicholas Gideon Kamau, deceased, filed an action against Dr. Raymond O. Oigara, Dr. Billy Freida and St Mary’s Rift Valley Mission Hospital, the 1st, 2nd and 3rd defendants respectively vide the plaint dated 28. 11. 2011 in which she sought for judgment as follows:

i. General damages under the Law Reform and Fatal Accidents Act.

ii. Aggravated damages

iii. Special damages for kshs.731,230/=

iv. Costs of the suit.

2) The defendants filed a joint statement of defence to deny the plaintiff’s claim.

3) When this suit came up for hearing, the plaintiff testified and summoned the evidence of two other witnesses while the defendants tendered the evidence of two witnesses in support of their case. It is the plaintiff’s case that in the year 2007 a diagnosis of an enlarged prostrate was made on the late Nicholas Gideon Kamau. The deceased is said to have visited St. Mary’s Mission Hospital, Gilgil (3rd defendant) and was attended to by Dr. Raymond Oigara (1st defendant). The 1st defendant is alleged to have given assurance to the deceased prior to his booking for an operation in the 3rd defendant’s hospital that he would undergo a successful surgery in that medical facility and that the cost would not be exorbitant. On 15. 9.2009 the deceased had himself admitted in St. Mary’s Hospital for elective surgery that was scheduled on 16. 9.2009 from where he called his family to support him with blood that was necessary for the operation. When the deceased’s relatives arrived in the hospital on 17. 9.2009, they found the deceased had already been operated on and was in deep sleep and snoring heavily having been sedated. It is the evidence of Emily Wanjiru (PW1) that she received a phone call from her father (deceased) on 14. 9.2009 requesting her to visit St. Mary’s hospital the next day. On 15. 9.2009, PW1 said she met the deceased who informed her that he had been assured by the doctors in St. Mary’s Mission Hospital that it was necessary for him to undergo a corrective surgery at the hospital to reduce the prostrate. It is also stated that the doctors told him that the operation was not a life threatening procedure. It is said that the deceased was assured that he would heal within 7 days. PW1 further stated that she donated a pint of blood as requested by the deceased. PW1 also said that she assisted the deceased in filling the admission forms. On 16. 9.2009 Prisca Njeri Kamau (PW2) and PW1 visited the deceased in hospital where they found him already in hospital garments. The duo stated that the deceased informed them that the surgery had been postponed to the next day. On 17. 9.2009, PW1 and PW4 visited the hospital where they found the deceased asleep and snoring badly and were informed by the duty nurse that he had been sedated since he had just come from the theatre. Both witnesses together with other relatives also visited the deceased in hospital on 18th 19th, 20th, 21st and 22nd September 2009. It is the evidence of PW1 and PW2 that in all the days they visited the deceased they noticed that the deceased had a swollen stomach which refused to reduce despite the assurance given by the nurses and the doctors of St. Mary’s Mission Hospital. PW1 and PW2 stated that on 21. 9.2009, the doctor summoned them and informed them that the patient (deceased) had developed pneumonia and that he had started administering strong antibiotics. PW1 said that on 24. 9.2009 she was called by the hospital staff requesting her to urgently visit the hospital since her dad had developed complications. On arrival PW1 met Dr. Freida (2nd defendant) who informed her that her father had passed away as a result of acute stroke.

4) The plaintiff also summoned Dr. Daniel Mbithi (PW3) a consultant pathologist who conducted a post-mortem on the body of the deceased. PW3 stated that he conducted a post-mortem on the body of Nicholas Gideon Kamau on 28. 9.2009 at the Nakuru War Memorial mortuary after the body was identified by the deceased’s relatives. PW3 formed the opinion that the cause of death was severe anaemia, severe pneumonia and intestinal obstruction due to torsion. PW3 stated that the intestinal obstruction makes the abdomen swollen and that may not be caused by the removal of the prostrate. PW3 stated that from the post-mortem he concluded that the patient was in a shock. In cross-examination PW3 stated that it was not possible to apportion blame to any one cause of the patient’s death. PW3 was emphatic that torsion was the main cause. It is said torsion requires a surgical emergency.

5) The defendants tendered the evidence of Dr. William Freida (DW1) and Dr. Raymond Oigara (DW2) in support of the defence case. DW1 stated that he did not assure the late Nicholas Gideon Kamau that everything will be okay. DW1 stated that the deceased passed away as a result of pneumonia which the hospital tried to treat. He stated that he was surprised to find that the deceased suffered twisted intestines. DW1 stated that he is of the view that the deceased died as a result of intestinal twist which was not detected by the hospital. DW1 also stated that he keenly followed the deceased’s progress. He stated that a patient with a twisted small intestine could not survive beyond three (3 ) days. He also said that the deceased had no severe anaemia. He however confirmed that the deceased had pneumonia. He also stated that the actual cause of death was intestinal twist. DW1 stated that the CT scan could not pick that the patient had a twisted intestine. He said that the deceased received the best medical attention. DW1 also informed this court that the incident was unfortunate where none should be blamed. In cross-examination DW1 stated that the cause of death of the deceased was intestinal obstruction. It is the evidence of DW1 that the cause of abdominal distention is fluid irrigation. DW1 admitted that had the hospital noticed that the patient (deceased) had abdominal distention early, the patient could have been taken to the theatre for a second operation and the patient could have been alive.

6) Dr. Raymond Oigara (DW2) stated that the late Nicholas Gideon Kamau was his patient and that he never assured him that everything would be okay after the surgery and that he would be healed within seven (7) days from the date of surgery. DW3 disputed the cause of death was severe anaemia as stated in the post-mortem report. He was of the view that the patient exhibited signs of pneumonia. DW2 however disputed the assertion that the deceased died due to sever pneumonia since severe pneumonia was absent. Dr. Oigara further stated that as he was treating the deceased he did not notice any intestinal twisting and obstruction. DW2 claimed that there was no nexus between the intestinal twist and the operation he did on the deceased. Dr. Oigara stated that he operated the deceased after examining and finding him fit to undergo a surgery. Both DW1 and DW2 admitted that they did not undertake abdominal ultra-sound nor abdominal x-ray on the deceased. DW2 also conceded that if the abdominal ultra sound and x-ray were done the cause of abdominal distention could have been detected and the patient could have been saved. DW2 further stated that the intestinal twisting occurred much later when the patient developed fever. He further stated that the defendants missed to discover because they were struggling to save the patient. DW2 claimed that he tried to the best of his ability to save the patient. Dr. Oigara further stated that it was difficult to pick out the patient’s condition because the patient had various ailments which clouded his focus as a doctor and not due to his negligence. He stated that he tried his best to assist the patient survive.

7) At the close of evidence learned counsels appearing in this matter were invited to file and exchange written submissions. There is no doubt that at the conclusion of this case this court was left to determine two main issues vizly: liability and quantum. It is the submission of the plaintiff that the 1st defendant conducted a surgery on the deceased incompetently and negligently thus resulting to severe infections of his abdomen known medical terms as severe peritonitis. It is also alleged that the 1st defendant failed to monitor and promptly rectify the botched surgery. He was also accused of being unavailable for the requisite post operative case of the deceased. In short, the plaintiff was of the view that the 1st defendant managed the deceased in a negligent manner. The 1st defendant denied the allegations. It is in his submission that the surgery he did on the deceased was carried out successfully and with no complications, therefore he was not negligent nor incompetent. The 1st defendant stated he is a competent medical doctor. It was also argued that there was no evidence which indicated that the surgery led to severe brain damage of the deceased. The 1st defendant further argued that the surgery was successful and not messy hence there was nothing to be monitored nor rectified. The 1st defendant stated that he was always available for his patient therefore the allegation that he was unavailable is untrue.

8) I have carefully considered the evidence presented by the plaintiff’s witnesses vis-a-vis that presented by the 1st defendant. It is not in dispute that the late Nicholas Gideon Kamau underwent a voluntary surgery conducted by the 1st defendant at St. Mary’s Mission Hospital, Gilgil. The surgery appear to have been successful, but later developed complications. The evidence of PW3, DW1 and Dw2 agree that the deceased suffered abdominal distention due to the deceased’s intestines twisting. It is admitted by DW1 that he did not notice that the deceased suffered intestinal twisting and obstruction. It is the evidence of PW1 and PW2 that the deceased suffered stomach distention three days after the surgery. DW1 stated that he did not carry out abdominal x-ray nor abdominal ultra-sound. DW1 admitted that had the above procedures been conducted the cause of the abdominal distention could have been detected. In view of the evidence tendered, I am convinced that the 1st defendant conducted a successful surgery but he failed to offer the patient post operative care. Had he been keen he could have been able to detect and manage the deceased’s ever swelling stomach. Having failed to carry out investigations to establish to why the deceased suffered abdominal distention, then the 1st defendant acted negligently. Had he conducted abdominal x-ray and abdominal ultra-sound the cause of the abdominal distention could have been discovered and treated.

9) The 2nd defendant has also been accused of being negligent in managing the deceased. It is the plaintiff’s submission that the 2nd defendant failed to make a prompt and diagnosis on the deceased’s complications upon surgery. PW1 and PW2 tendered evidence showing that the deceased suffered a stomach distention for a couple of days and despite complaining to the hospital staff no one bothered to investigate why his stomach kept on swelling. DW1 stated that the deceased did not have abdominal distention until after surgery. DW1 admitted that had he carried out abdominal utra-sound and abdominal x-ray he would have detected the cause of the stomach distention. On the basis of the evidence presented, I am convinced that the 2nd defendant acted negligently when he failed to carry out the aforesaid procedures on the deceased.

10) The 3rd defendant has been accused for inter alia that it retained a panel of medical doctors and nursing staff who mismanaged the deceased in a negligent manner. It is also stated that the doctors retained by the 3rd defendant failed to make proper and prompt diagnosis on the deceased. DW1 and DW2 admitted in cross-examination that they failed to carry out vital investigations to establish the reasons why the deceased suffered abdominal distention. DW1 who was the CEO of St. Mary’s Mission Hospital admitted they did not attempt to investigate the cause of the deceased’s abdominal distention. A prudent medical doctor would have carried out such vital investigations before treating the patient. On the basis of this evidence, I am satisfied that the 3rd defendant is liable for retaining doctors and medical staff who negligently managed the deceased.

11) Having determined the question relating to liability I now address my mind to quantum. The plaintiff made claims for damages on the following heads:

i. Pain and suffering

ii. Lost years

iii. Loss of expectation of life

iv. Special damages

v. Aggravated damages

12) On pain and suffering, the plaintiff proposed to be paid a sum of ksh.2,000,000/=. It is pointed out that the deceased suffered severe pain which lasted for 7 days hence the plaintiff submitted that the plaintiff is entitled to the aforesaid sum. The defendants were in agreement that the deceased was in great pain before he passed away. They proposed a sum of ksh.50,000/= to be sufficient on this head. It is not in dispute that the deceased endured great pain after undergoing a surgery for 7 days before he passed on. In the circumstances of this case I am satisfied that the plaintiff should be awarded ksh.1,500,000/= for pain and suffering.

13) On lost years, the plaintiff stated that the deceased would have lived upto the age of 90 years. This means that a multiplier of 22 years would be applied on a monthly income of kshs.10,000/=. Consequently the plaintiff proposed payment of kshs.1,848,000/= tabulated as follows:

10,000x12x22. .............................2,640,000/=

Less 30% tax............................ 792,000/=

Net ........................................ 1,848,000/=

14) The defendants are of the view that no award should be made on this head because no income was attached to the deceased and the figure of ksh.10,000/= is picked from the air. It is also pointed out that the plaint does not contain the list of dependants as required under Section 8 of the Fatal Accidents Act. The defendants nevertheless proposed a multiplicand of 1 year. With respect, I agree with the submissions of the defendants that there was no iota of evidence tendered by the plaintiff as to how much the deceased used to earn per month from his economic activities. The list of dependants have not also been listed in the plaint. Having failed to lay evidential foundation on this head, I decline to make an award.

15) The plaintiff has also claimed a sum of kshs.150,000/= for loss of expectation of life. The defendant urged this court to make an award of kshs.50,000/=. In view of the fact that the deceased was aged 68 years and was on constant medication for asthma and diabetes. I have taken into account the various authorities which indicate that this court has previously awarded an average sum of between ksh.70,000/= and 100,000/=. In the circumstances of this case I am convinced a sum of ksh.100,000/= is reasonable on this head.

16) The plaintiff has pleaded to be paid ksh.731,230/= as special damages. The plaintiff (PW2) presented documentary evidence to prove what she has specifically pleaded in the plaint. The defendants are of the view that the figures pleaded and proved are exorbitant. It is also argued that the costs spent in the medical and dentist board were recoverable before the board. I find the defendant’s submission on this head untenable because no evidence were tendered to controvert the evidence presented by the plaintiff. I am satisfied that the plaintiff discharged the burden of proof. I award the plaintiff the sum of ksh.731,230/=. The plaintiff pleaded for payment of aggravated damages for ksh.1,500,000/= The plaintiff did not lay a basis for this claim. Consequently I find no justification for this claim. I decline to grant.

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

i. General damages for pain and suffering.............. 1,500,000/=

ii. Damages for loss of expectation of life ............. 100,000/=

iii. Special damages .....................................................731,230/=

Net Total ........................................................... 2,331,230/=

iv. Costs of the suit.

v. Interest at court rates on (i) – (iv) above from the date of judgment until full payment.

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

J. K. SERGON

JUDGE

In the presence of:

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

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