[2023] KEHC 25974 (KLR)

Ringo & another v Kenyatta National Hospital & another (Civil Case 915 of 2006) [2023] KEHC 25974 (KLR) (Civ) (1 December 2023) (Judgment)

Neutral citation: [2023] KEHC 25974 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 915 of 2006

AN Ongeri, J

December 1, 2023

Between

Faith Nashika Ringo

1st Plaintiff

William Njogholo Mwakisachi

2nd Plaintiff

and

Kenyatta National Hospital

1st Defendant

Dr. Joshua K. Kayima

2nd Defendant

Judgment

1. The plaintiffs in this case Faith Nashika Ringo and William Njogholo Mwakisachi (hereafter referred to as the 1st and 2nd plaintiffs respectively) have sued Kenyatta National Hospital (knh) And Dr. Joshua K. Kayima (here after referred to as the 1st and 2nd defendants respectively) seeking the following remedies in respect of the deceased herein Simon Mwachofi Mwakisachi;i.General damages under the Law Reform Actand the Fatal Accidents Actii.Aggravated damagesiii.Special damages of ksh.45,100iv.A Sanderson Order on costsv.Interest on (i) and(ii) above.

2. The plaintiffs made the following averments in their plaint dated 25/8/2006;That the deceased Simon Mwachofi Makisachi was diagnosed to have a renal disease and was admitted at the 1st defendant’s hospital at the instruction and instance of the 2nd defendant.

3. That on 26th August, 2003 the deceased underwent dialysis at the 1st defendant’s hospital but collapsed and died after a few hours after the first episode of dialysis.

4. That the death of the deceased Simon Mwachofi Mwakisachi was caused by the negligence of the 1st and 2nd defendants, their servants or agents or other persons engaged by the 1st and 2nd defendants who performed dialysis.

5. The names of the persons for whose benefit this action is brought are as follows;a.Faith Nashika Ringo – wife to deceased and 1st plaintiffb.Francis Mwakisachi - son aged 14 yearsc.Sally masabelo - daughter aged 9 yearsd.Cecilia Mlagha Mwakisachi- mother aged 62 years

6. That the deceased was at the time of his death, a healthy, vigorous man aged 38 years. He was a lecturer earning a salary of ksh.19,362/= per month. The mother, wife, son and daughter were dependent on the deceased and he gave them a monthly allowance and contributed to their families for their support.

7. That further, by reason of the matters aforesaid, the deceased’s life was considerably shortened in consequence whereof his estate has suffered loss and damages.Particulars of special damagea.Funeral expenses 30,000. 00b.Fees paid for probate 15,000. 00c.Death certificate 1,000. 00Total 45,100. 00And the plaintiffs as administrators claim damages.

8. The 1st defendant and the 2nd defendant filed statements of defence dated 27/10/2006 and respectively denying the plaintiff’s claim.

9. The case proceeded by viva voce evidence. PW 1 Dr. Andrew Kanyi Gachii who did the post mortem on the deceased produced a post mortem report dated 5/9/2003 which he produced as an exhibit in this case.

10. According to the post mortem report, the cause of death was massive right-sided haemorrhage (haemathorax) due to intercostal artery severance (injury) in patient with renal failure.

11. PW 2 Prof Kiama Wangai said the cause of death was negligent injury to the intercostal during dialysis. He produced his report.

12. In cross examination, Prof. Kiama Wangai said his report was based on the findings of Dr. Gachii who did the post mortem.

13. PW 3 the 1st plaintiff Faith Nashika Ringo adopted her witness statement as evidence in chief. In the said statement she stated that the deceased was her husband and that she has been granted a Limited Grant for his estate jointly with William Njogholo Mwakisachi.

14. PW3 said that on or around the year 2003 her husband started having renal complications and started undergoing dialysis. On 19/8/2003 he was admitted at Kenyatta National Hospital where he stayed until his death 26/8/2003. She accompanied him to Kenyatta National Hospital where he underwent a renal check which established he had a kidney problem.

15. She said that the deceased was put on dialysis and Dr. Joshua Kayima who was treating him.PW3 further said that after the deceased died,a post mortem was later conducted by Dr. Andrew Kanyi and a medical report prepared later by Dr. Kiama Wangai.

16. The deceased was aged 38 years at the time of his death and was a lecturer at St. Mary’s Teacher College, Bura. He used to earn Kshs. 19,362 gross monthly pay. They had two children and were all dependent on him for their livelihood and maintenance. At his death they spent Kshs. 45,100 for the burial.

17. In cross examination PW 3 said she got married to the deceased in Nairobi in a year she could not recall and they have 2 children.

18. PW 3 said that the deceased started having renal complications in 2003.

19. PW 3 said the deceased was a lecturer based at Taita where he lived. He had high blood pressure which was being controlled.

20. PW 3 said the deceased was taken to KNH under the care of the 2nd defendant. He was checked and found with a renal disease. She said he was not very sick when he was admitted at KNH.

21. PW 3 said the deceased used to support her and after his death the children have been giving her support.

22. The 1st defendant called Prof. Mcligeyo who testified as DW 1. DW1 said he is a kidney specialist. He adopted his witness statement dated 17/5/2016 in which he restated that he is aware that the 1st defendant’s renal unit was opened in 1984 and provides services for treatment of Kidney Diseases for the entire hospital. Dialysis at the Renal Treatment Unit is just one of the several treatment specializations that the 1st defendant caters for.

23. He stated that dialysis is carried out to patients who are in critical need of the same. That with all surgical procedures, the process of catheterization in preparation for dialysis and the actual dialysis is not without risk even for the most highly skilled doctors.

24. DW1 said the risk is explained to all patients and their representatives prior to the commencement of the treatment as a matter of hospital policy and a consent procured from the patient or patient’s family/representative before treatment can commence.

25. He indicated that the 1st defendant’s medical staff gave the deceased adequate professional medical care prior to his demise however his condition deteriorated very fast leading to cardiac arrest in spite of the first aid intervention by the Renal Unit.

26. DW 1 said the 2nd defendant was one of his finest students.

27. DW 1 said there are two methods of dialysis catheters or artificial graft and fistula.

28. In this particular case, DW 2 used the catheter.

29. DW 1 said during cross examination that he did not treat the deceased and neither did he advice on the kind of treatment the deceased underwent.

30. DW1 also said he did not know what happened between 7. 30pm and 10. 30pm.

31. DW1 also said high blood pressure may cause kidney failure.

32. DW 2 Dr. Ahmed Twahir said he is a physician and a kidney specialist.

33. DW 2 said kidney failure occurs when the kidney fails to function. He said the kidney failure affects the heart. He said confusion is a sign of kidney failure.

34. He said the deceased required immediate dialysis. The catheter was inserted on the right side but it did not work and it was inserted on the left side and it worked.

35. DW 2 said dialysis was meant to remove toxins from the blood. He said when a patient has renal failure dialysis is dire as an emergency and a kidney transplant is a long term solution.

36. DW 2 said the patient fell down and collapsed and died. Attempts to resuscitate him were not successful.

37. In cross examination DW 2 said the catheter procedure used on the deceased was blind. He said these days they use image intensifier and ultrasound which were not available when the deceased was admitted at KNH.

38. DW 2 said he made a report based on the hospital records at KNH. He said he never treated the deceased.

39. This court took over this matter at this stage. DW3 Prof. Joshua Kayima (the 2nd defendant) adopted his statement dated 8/6/2015 as his evidence in chief.

40. In cross examination the 2nd defendant said he has been a renal specialist since 1992 and that he has treated several patients.

41. The 2nd defendant said his last contact with the patient was when he inserted the catheter.

42. The 2nd defendant said he learnt that the patient went to the bathroom before he collapsed upon returning to the bed.

43. The 2nd defendant said in cross examination that he requested for an x-ray for the patient.

44. He said he was aware that the patient lost 2. 5 litres of blood.

45. The parties filed written submissions as follows; the plaintiff submitted that Dr. Andrew Kanyi Gachii who was the pathologist that performed the autopsy and prepared the post mortem report testified that his examination of the deceased's body revealed that there was a collapse of the right lungs and that there was massive right side haemothorax amounting to 2. 5 litres of fresh and clotted blood, which had caused a collapse of the right lung.

46. He noted an injury to the intercostal artery seen 2cm from the subclavian artery with attended hemorrhage into the tissue and muscle. According to the said witness the cause of death was the massive right sided hemorrhage due to the intercostal artery severance in a patient with renal failure.

47. PW1 stated that as a doctor he would have monitored the patient if he had undertaken the procedure. This, according to the said witness it should have been done every 20 minutes to confirm whether a complication had occurred.

48. He further stated that to bleed 2. 5 liters would take 3-5 hours. Monitoring of the deceased after the dialysis was not undertaken is not only supported by PW I who stated that had monitoring been undertaken, the bleeding on account of the severance of the intercostal would have been noted but also the hospital records.

49. It was submitted that DW 2, who testified on behalf of the Defendants admitted in cross-examination that he did not undertake any treatment of the deceased. He stated that after every half hour there should have been readings provided on blood pressure such that between 1 1. 00pm and 3. 00pm there was supposed to have been 6 readings provided. He admitted that the records had a gap. He also admitted that there were no results on the portable X-Ray provided.

50. He also admitted in cross-examination that there was no interventions indicated from 10. 35pm to 5. 00am in the morning and that the dialysis notes were missing.

51. The plaintiff submitted that evidence of negligence is further supported by the fact of the admission by DW3 who was the 2nd Defendant in his examination-in-Chief that after inserting the catheter, he left the matter to the nurses to do the treatment.

52. Further that DW3 stated that he ordered for a portable X-Ray but could not present the results of the portable X-Ray in cross-examination. He admitted that there is normally a dialysis form but could not provide the dialysis form.

53. It was the plaintiff’s submission that it is unusual or abnormal for the deceased to have died hours after the first session of dialysis. There is no indication from the hospital records that before the deceased underwent procedure for dialysis his condition was critical in the night of the dialysis which points out to one conclusion- the Defendants were negligent.

54. It was further submitted by the plaintiffs that the Defendants owed the deceased a duty to carry the dialysis procedure properly and professionally, that they breached the duty by conducting the same unprofessionally and negligently and that the deceased suffered loss of life as a result of that breach.

55. On quantum the plaintiff submitted that the estate of the deceased is entitled to loss of expectation of life and proposed Kshs. 250,000 as reasonable. For pain and suffering before death proposed Kshs. 200,000. The deceased was aged 38 years at the time of his death, he used to earn Kshs. 19,352 at the time of his death, it was proposed a ratio of 2/3 which totals to Kshs. 3,405,952. The plaintiff finally submitted exemplary damages of Kshs. 3,000,000.

56. The 1st defendant submitted that while the Plaintiff relies on the divergent opinion expressed in the evidence of Dr. Andrew Kanyi Gachii to establish negligence the court cannot establish negligence merely on the divergent opinion of another doctor especially given that the dialysis procedure involved inherent risks.

57. A hospital is expected by its very nature to take all reasonable steps to ensure that a patient received proper care, which the 1st Defendant did, as it employed the services of duly qualified personnel to attend to patients and they exercised due care, skill, diligence and competence as was reasonably expected from an ordinary and competent health provider of its nature, hence the 1st Defendant cannot be held liable for negligence.

58. On damages the 1st defendant submitted that the Deceased unfortunately had a chronic illness, the court ought to take judicial notice that he may not have lived for as long as the Plaintiff suggests owing to the kidney failure, and since the deceased also collapsed and died a few hours after a dialysis procedure, the damages awardable for pain and suffering also ought to be minimal, and we urge the court to find that an amount of Ksh. 100,000 as damages for loss of expectation of life, and Ksh. 100,000 as damages for pain and suffering.

59. Further, the 1st defendant submitted that since, owing to the existence of the chronic illness, a multiplier of 22 is way on the higher side and the court ought to consider a much lower multiplier considering that the deceased was not a perfectly healthy individual such as those killed in road traffic accidents, they suggested a multiplier of 5 years.

60. Further that in the absence of factual evidence of the extent of dependency by his family, we urge the court consider a lower dependency ratio, than that suggested by the Plaintiff.

61. The 1st defendant finally rejected the claim for exemplary damages, as the circumstances of the case do not warrant an award of such damages.

62. The 2nd defendant submitted that the Plaintiff called the wife of the deceased as witness, the pathologist, and a medical legal consultant to give evidence on this matter. The Plaintiffs did not call any nephrologist. The 1st Defendant on the other hand called Professor S. O McLigeyo – a nephrologist by profession as a witness. The 2nd Defendant is by profession a nephrologist. He called Dr. Ahmed Twahir – a nephrologist as a witness.

63. That the three nephrologists agree that the procedure undertaken was a standard procedure with its known and well documented complications such as the tearing of the intercostal artery of the deceased. The witnesses further stated that there were no signs of the bleed which it is agreed was a small bleed which was aggravated by the deceased’s condition at the time.

64. The 2nd defendant submitted that there is no iota of evidence that the medical personnel who handled the deceased deviated from the known procedures of inserting a permcath as was done on the deceased. There was also no indication of incompatibility with the professional skills expected of the said personnel which led to the demise of the deceased. It is also well settled as a matter of law that the fact that something has gone wrong during or after a surgical procedure is not, of itself, indicative of negligence.

65. Further, that the risks of undergoing surgery, however small, are nevertheless ever present and, at times, all pervasive.

66. I have carefully considered the evidence adduced in this case together with the rival submissions by the parties.

67. It is the duty of the plaintiffs to prove their case to the required standard in civil cases which is on a balance of probabilities.

68. The issues for determination in this case are as follows:i.Whether the plaintiffs proved their case to the required standard.ii.Whether the plaintiffs are entitled to the remedies they are seeking.

69. On the issue as to whether the plaintiffs proved their case to the required standard, there is evidence that the cause of death was massive rightsided hemorrhage (haemothorax) due to intercostal artery severance (injury) in patient with renal failure.

70. The death certificate stated that the deceased died of cardiorespiratory arrest due to renal failure.

71. The Plaintiffs called the wife of the deceased as witness, the pathologist, and a medical legal consultant to give evidence on this matter.

72. Although the Plaintiffs did not call any nephrologist, I find that the findings of the postmortem Report were not disputed by the Defendants.

73. The plaintiff’s evidence was that the Defendants were negligent and that the Defendants owed the deceased a duty to effect the dialysis procedure properly and professionally, that they breached the duty by conducting the same unprofessionally and negligently and that the deceased suffered loss of life as a result of that breach.

74. There is evidence that after inserting the catheter, the 2nd Defendant did not closely monitor the patient’s progress but left the patient entirely in the care of the attending nurses.

75. In the case of Atsango Chesoni vs. David Mortons Silverstein [2005]eKLR it was stated as follows;“The Council recognizes and welcomes the growing contribution made to health care by nurses and other persons who have been trained to perform specialized functions, and it has no desire either to restrain the delegation to such persons of treatment or procedures falling within the proper scope of their skills or to hamper the training of medical and other health students. But a doctor who delegate’s treatment or other procedures must be satisfied that the person to whom they are delegated is competent to carry them out. It is also important that the doctor should retain ultimate responsibility for the management of his patients because only the doctor has received the necessary training to undertake this responsibility.”

76. There is undisputed evidence that the deceased bleed 2. 5 liters of blood which would have taken 3-5 hours.

77. I find that had the patient been monitored during and after the dialysis was not undertaken, the bleeding on account of the severance of the intercostal would have been noted.

78. I have considered the evidence by DW1, Professor S. O McLigeyo a nephrologist by profession and also the evidence of the 2nd Defendant who is also a nephrologist.

79. The 2nd Defendant also called Dr. Ahmed Twahir – a nephrologist as a witness. The three nephrologists said that the procedure undertaken was a standard procedure with its known and well documented complications such as the tearing of the intercostal artery as in the deceased.

80. I have additionally considered that their professional stature notwithstanding, with the exception of the 2nd defendant, the two nephrologists did not treat the deceased in this case.

81. I find that the evidence of DW1 and DW2 did not controvert the charge of negligence and neither did they confirm that both the catheterization, dialysis and monitoring was properly done according to the standard procedures at the time.

82. I find that proper monitoring of the deceased after catheterization and the subsequent dialysis was not undertaken otherwise the bleeding on account of the severance of the intercostal would have been noted and documented and efforts made to address the attendant emergency.

83. In the case of M (a Minor) –vs. –Amulega & another [2001] KLR 420 the court held as follows;“Authorities who own a hospital are in law under the self-same duty as the humblest doctor. Whenever 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 whom they employ and if their staff is negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him..... It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital. They are liable for the negligent acts of a member of the hospital staff, which constitutes a breach of that duty of care owed by him to the Plaintiff thus there has been acceptance from the courts that hospital authorities are in fact liable for breach of duty by its members of staff.... 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."

84. I find that the plaintiffs have proved their case on a balance of probabilities and I hold the 1st and 2nd defendants 100% liable in negligence for the death of the deceased.

85. On the issue as to whether the plaintiffs are entitled to the remedies they are seeking against the Defendants, I find that the answer is in the affirmative.

86. On quantum the plaintiff submitted that the estate of the deceased is entitled to loss of expectation of life and proposed Kshs. 250,000 as reasonable. For pain and suffering before death proposed Kshs. 200,000. The deceased was aged 38 years at the time of his death, he used to earn Kshs. 19,352 at the time of his death, it was proposed a ratio of 2/3 which totals to Kshs. 3,405,952. The plaintiff finally submitted exemplary damages of Kshs. 3,000,000.

87. On the part of the Defendants, the 1st defendant submitted that the Deceased unfortunately had a chronic illness, that the court ought to take judicial notice that he may not have lived for as long as the Plaintiff suggests owing to the kidney failure, and since the deceased also collapsed and died a few hours after a dialysis procedure, the damages awardable for pain and suffering also ought to be minimal.

88. The 1st Defendant urged the court to award an amount of Ksh. 100,000 as damages for loss of expectation of life and Ksh. 100,000 as damages for pain and suffering.

89. Further, the 1st defendant submitted that since, owing to the existence of the chronic illness, a multiplier of 22 is way on the higher side and the court ought to consider a much lower multiplier considering that the deceased was not a perfectly healthy individual such as those killed in road traffic accidents, they suggested a multiplier of 5 years.

90. I find that it is not in dispute that the deceased was aged 38 years at the time of his death, and that he used to earn Kshs. 19,352 at the time of his death.

91. I have considered the vagaries of life and the fact that the deceased was suffering from chronic illnesses. I award a multiplier of 14 years and a multiplicand of Kshs.19,352.

92. I award damages as follows; Liability……………………………………………………..…100%

Damages for pain and suffering……………….100,000

Loss of expectation of life………………………...100,000

Loss of Dependency(14x12x19,352x2/3)=2,167,424

Special damages……………………………………………45,100

Total 2,412,524

93. Judgment be and is hereby entered in favor of the plaintiffs against the Defendants jointly and severally in the sum of Kshs.2,412,524 together with costs of the suit and interest at court rates from the date of this judgment until payment in full.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF DECEMBER, 2023. ………….…………….A. N. ONGERIJUDGE