Chipantha & Msika v Attorney General (Ministry of Health) (Civil Cause 144 of 2021) [2023] MWHCCiv 16 (28 June 2023)

IN THE HIGH COURT OF MALAWI LILONGWE REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 144 OF 2021 MERCY CHIPANTHA.......+. sccecetauausavseeeacessens secevaves —ccccesereceeee 18? CLAIMANT EDWARD MSIKA..ccccessceeeeees —ccccceseauistauseraanasseanaeasese —ceee-2ND CLAIMANT -AND - ATTORNEY GENERAL (MINISTRY OF HEALTH)... __.. DEFENDANT Coram: Brian Sambo, Assistant Registrar Mr. E. D. Chibwana, of counsel for the Claimants | Defendant; absent and unrepresented Mr. M. Mhango, Court Clerk/ Official Interpreter ORDER ON ASSESSMENT OF DAMAGES A, BACKGROUND The Claimants sued the Defendant for the following: i. On the part of the 1st Claimant, she claims damages for Injury, pain suffering and humiliation Being subjected to unnecessary treatment Being subjected to unnecessary second operation Loss of part of her organ 5. Anguish Mercy Chipantha and Edward Msika vs Attorney General (Ministry of Health), Civil C Cause Number 206 a of 2018. ; aan BON pe 6, Mental feelings 7. Costs for this action. ii. . On the part of the 2¢ Claimant, his claim is for damages for Humiliation : Being subjected to unnecessary treatment Anguish Mentai feeling e, Costs for this action. The Defendant had duly filed their defence on the 8" of May, 2018. Unfortunately for them, when the matter came for mediation, on 25% June, 2021, the Defendants did not attend and no excuse was extend to the Mediator. This ao oP . prompted the Claimants to ask the Mediator to strike out their defence and enter judgment in their favour. That is what happened; under Order 13 r 6(a) of the Courts (High Court) (Civil Procedure) Rules, 2017, their defence was struck out and a judgment was entered against the Defendant for all the claims above- highlighted. On 15th June, 2023, I heard the Claimant’s evidence exparte. The Defendant was duly served with the notice of assessment of damages but they still chose not to attend. Counsel Chibwana exhibited a copy of a returned service. No excuse was given by the Defendant for this default of appearance. I will be exploring this whole case in a short while, but before I do so, brief facts of the case suffice. 8. BRIEF FACTS The Claimants are wife and husband, respectively. The two were expecting their first child, and when time for child delivery came to pass, the 1st Claimant went “: to Bwaila Hospital for the same; on 4th March, 2012. She gave birth through ccaesarian section. After being discharged, she discovered that she was vomiting more and more often, and her stomach felt full, and it became big. Ina few days, just after being discharged from the hospital, she started discharging puss from her private part. She went to Kawale Health Centre on 6th October, 2012 for medical treatment, where she was told that she was suffering from a sexual transmitted disease . known as Syphilis. She was immediately placed on an anti-biotic treatment. Mercy Chipantha and Edward Msika vs Attorney General (Ministry of Health), Civil Cause Number 206 Oe eS of 2018. er, While taking the Syphilis medication, she decided to go to Bwaila Hospital for further treatment. This happened on 22n¢ October, 2012. Her blood was tested and: she was found to be without any sexual transmitted diseases. She was discharged on the same day with a request to return with her husband. She did. Her husband was tested for sexual transmitted diseases and he also came out negative. Nevertheless, the medical personnel still injected both of them and then gave them some medicine which they took as directed. The 1st Claimant was still undergoing excruciating agony despite all those - treatments, and was still discharging puss through her vagina. no On 27! March, 2013, she decided to seek comprehensive medical treatment at Kamuzu Central Hospital. She was subjected to scanning, given further medication and advised to return on 10% April, 2013. When she went back to Kamuzu Central Hospital on the 10% of April, 2013, she was given an intervenous injection. She was advised to return to Kamuzu Central Hospital on 14th August, 2013. She did, and she was given further medication and also advised to return on 16% September, 2013. Despite all these medical appointments, her health was steadily deteriorating. Her agony increased. In a bid to recover, she decided to visit a private hospital known as The Clinic, within the city of Lilongwe. She did this on 15% August, 2013. She was . comprehensively scanned and results came out to the effect that a foreign object was leftin her abdomen. She was, instantly referred to Kamuzu Central Hospital ' for a surgical operation. When she went to Kamuzu Central Hospital, she was just given Panado and told to go home. She did but her agony was appreciating each day. The surgery was never entertained despite being referred for the same by the Bwaila Hospital. oe ° She thus decided to seek further medical attention at Nkhoma Mission Hospital on 19% August, 2013, She was scanned and told that a surgical pack was left in her abdomen during the caesarian section she underwent at Bwaila Hospital. On 19% August, 2013, her Uterus was surgically opened and live maggots and pus came out of the wound, and she was told to go again in September, 2013. Despite being operated on at Nkhoma Mission Hospital, she was still experiencing excruciating pains. She rushed to Kamuzu Central Hospital on 23°4 August, 2013 where the caesarian section spot was re-opened, and another opening was made across her abdomen. A decomposed gauze and cotton was “Mercy Chipantha and Edward Msika vs Attorney General (Ministry of Health), Civil Cause Number 206 Ee of 2018. oe 7 found inside her and removed. It was further, discovered that the decomposed ‘foreign objects had affected her intestines. Consequently, part of her intestine was also removed as the doctors tried to restore her intestines. Because of the terrible medical experience she underwent from the time of her child delivery, she took up a step to complain to the Medical Council of Malawi. In its letter dated 9% November, 2017, the council acknowledged and confirmed the negligence occasioned by Bwaila Hospital by leaving a surgical pack inside her body, hence the present suit. Cc, SUBMISSIONS BY COUNSEL FOR THE CLAIMANT _ Counsel Chibwana had, passionately lamented about the poor health service delivery by public healthcare givers to the 1* Claimant, He observed that, since he began his law practice, he had never come across such a horrible medical negligence case. He said his client had a frightening near-death experience and it was by grace that she was still standing. Counsel recounted his client’s medical experience almost in the same language as presented in the facts above. He averred that his client was not treated as a human being; the medical personnel kept on dismissing her even when there were clear indications that the she was in deep pains. He added that his clients were made to spend a lot of money in the process, and that the 9nd Claimant too suffered together with his wife as he had to stand with her throughout this scaring medical experience. _ Having recounted his clients’ ordeal; he went ahead to give his propositions. He submitted that, looking at the horrendous medical experiences involved and the — devaluation of Malawi Kwacha, the 1st Claimant should be awarded MK100, : 000,000.00 while the and Claimant should be awarded MK40, 000,000.00 being damages covering all heads, plus costs. He further prayed for any other relief the Court may deem fit in the circumstances. According to counsel, the two Claimants deserve substantial compensation because the 1st Claimant had become deformed to the extent that she could no . longer bear children; the first child for which she had under gone caesarian section at Bwaila Hospital would be the only child the two would ever have in their marriage, and this is, according to counsel, was against their family plan to bear more children. D. ISSUE The hearing was conducted to assess the quantum of damages payable by the Defendant under the above-stated heads. Mercy Chipantha and Edward Msika vs Attorney General (Ministry of Health), Civil Cause Number 206 pe of 2018. ce ANALYSIS OF THE FACTS AND DETERMINATION E, THE LAW ON DAMAGES The law generally provides that a person who suffers bodily injuries or losses que to the negligence of another is entitled to recover damages, The fundamental principle which underlines the whole law of damages is that the damages to be recovered must, in money terms, be no more and no less than the Claimant’s actual loss. The principle was laid down in numerous case authorities more particularly by Lord Blackburn in the case of Livingstone v. Rawyards Coal Company, (1880) 4 AC 25 in the following terms: where any injury or loss is to be compensated by damages, in settling a sum of money to be given as damages, you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered loss, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. However, it ought to be borne i in mind that it is not possible to quantify damages for pain and suffering, loss of amenities, deformity and for other afflictions: ‘as claimed in this matter with mathematical precision. As a result, courts use decided cases of comparable nature to arrive at just and fair awards. That ensures some degree of consistency and uniformity in cases of a broadly similar nature: See Wright -vs- British Railways Board [1983] 2 A. C. 773, and Kalinda - ys- Attorney General [1992] 15 M. L. R. 170 at p.172. As such this court will have . “Mercy Chipantha and Edward Msika vs Attorney General (Ministry of Healt), Civil Cause Number 206 So , of 2018. . recourse to comparable cases to arrive at the appropriate amount of damages for the Claimants. F. DAMAGES I would have loved to deal with each head of damages interceded for by the Claimants, separately but I noticed they were so many of them. . The danger is that if listen to my heart or to the Claimants to tackle them as such, my hands may find themselves over-compensating the Claimants herein, For sure, no defendant let alone the law known to assessment of damages would ever want to see that. This sufficiently, explains why | have taken the present enviable approach; to deal with all heads of damages herein, simultaneously. Some people will still want to hear this; the word ‘pain’ connotes that which is immediately felt upon the nerves and brain, be it directly related to the accident or resulting from medical treatment necessitated by the accident, while suffering inchides fright, fear of future disability, humiliation, embarrassment and sickness- Ian Goldrein et al, Personal Injury Litigation, Practice and Precedents (Butterworths, 1985) p8. See also City of Blantyre v. Sagawa, [1993] 16(1) MLR 67 (SCA). | In rather simpler terms, ‘pain’ means the physical hurt or discomfort attributable to the injury itself or consequent upon it. It includes the pain caused by any medical treatment which the plaintiff might have to undergo. See Sakonda v S. R. Nicholas, Civil Appeal Cause No: 67 of 2013. ‘Suffering’ on the other. hand denotes the mental or emotional distress which the plaintiff may feel as a result of the injury. This includes but not limited to anxiety, worry, fear, torment and embarrassment. . , Now, loss of amenities embraées all that which reduces the Claimant’s enjoyment of life; his or her deprivation of amenity whether he or she is aware of it or not. The ist Claimant had lost part of her intestine; and that’s disfigurement. Damages are paid under the head of disfigurement or deformity for the change in the physical form of a person injured either as a result of the impact of the injury or its treatment, such as a scar coming in as a result of surgical operation necessitated by the injury. It is a change in appearance but it is capable of limiting a person from doing certain things as was observed by the court in the case of Austin Julius v. Rasika Gunawardena and General Alliance Limited, Personal Injury Cause Number 316 of 2014. | - Mercy Chipantha and Edward Msika vs Attorney General (Ministry of Health), Civil Cause Number 206 my fo of 2018. The case in my hands is a unique one; there are a few judicial precedents that, directly underpin its circumstances. The ordeal that the 1st Claimant had passed through is slightly similar to those experienced by the Claimant in Doreen Chatha (Nee Kamanga) vs Attorney General (Ministry of Health), Personal Injury Cause Number 412 of 2019, on 25 May, 2018 In the above case, the Claimant went to Promenade Medical Centre where she underwent an operation on 26% May, 2018, and it was through this operation process that it was revealed that during the first surgical process at Queen Elizabeth Hospital, a foreign body was negligently left in her womb, and that with time the said foreign body got decomposed, causing damage to the Claimant’s uterus and ovary. Through a writ of summons, the Claimant commenced this action claiming damages for pain. and suffering, loss of amenities of life, reimbursement of medical expenses and costs of action. Counsel for the Claimant prayed for MK400, 000, 000.00 as total amount to be awarded, but the court permitted MK151, 000, 000.00; that was on pain and suffering and loss of amenities of life alone. The other case with similar circumstances with those of the i Claimant herein is Lazalo Zinaukaona _ys- Attorney General, Personal Injury Cause No.33 i of 2016, in which foreign . bodies such as forceps and a gauze were left inside the deceased’s abdomen after a caesarian operation. She had to endure 28 years of continuous suffering eventually leading to her death. The court awarded the claimant the sum of MK150, 000,000.00 as damages for pain and suffering and loss of amenities of life as opposed to what the Claimant had prayed for; MK700,000,000.00. The award was made on 18 May, 2021. The case authorities above-cited clearly shows how valuable is human life and ‘human body. The 1st Claimant almost lost her life due to the negligence of Mercy. Chipantha and Edward Msika vs Attorney General (ministry of Health), Civil Cause Number 206 | - oft 2018. medical practitioners at Bwaila Hospital, She was eventually subjected to a series of surgical operations after having suffered excruciating pains for more than two years. She'and her husbarid was put on syphilis treatment for a number of months; because she was continuously discharging puss from her private part, they simply ‘suspected a sexual transmitted disease without conducting a thorough scanning. Some kind of those lazy and careless medical officers who are so much used to people’s agony, horror and death. She had complained to them; at Bwaila, Kawale and Kamuzu Central Hospital for a number of times but they unceremoniously dismissed her, and yet she was getting rotten inside day . by day. The time she was being operated for the 3rd time, live maggots were . removed from her body. One can imagine the agony in which this woman had passed through. Some gauze and cotton were left inside her body during caesarean section at Bwaila. These are foreign objects which should not be found in a human body. One thing I do not understand is that; how does a medical practitioner who is well learned, with all his or her senses fully awake; conscious, cautious and careful forget the whole surgical pack in his/her client’s body - when he or she is not attending to many clients at a time? This cannot be anything other than works of Satan; to kill, steal and destroy! Our women are in extreine danger in the hands of public hospitals. For a poor mother, giving birth: 4in these hospitals is no longer a thing to be celebrated. Today, it seems nobody can boldly tell the difference between a ‘qualified and non-qualified comniunity based birth attendants. (Azamba) in ag far as public hospitals are concerned. Somehow, the latter seem to be possessing more humanity and care than the former, My view, until now, is that giving birth should not be a source of calamity. Instead of rejoicing within the spaces of expecting a new baby, the whole joy of parentage disappears at the thought of uncertainty of life at the feet of public hospital medical practitioners. Mercy Chipantha and Edward Ms ika vs Attorney General (Ministry of Health}, Civil Cause Number 2 06 Soy of 2018: : It is no ' longer surprising to me any more when liquid mothers shun public hospitals for private ones. Unfortunately, 90% of Malawians cannot afford service charges in private hospitals; included the faith-basediones. In the present case, it took time for the 1st Claimant to go to a private hospital known as The Clinic. Without doubt, that happened partly because of lack of resources, and yet it was this private clinic that had discovered the foreign objects left in the 1* Claimant’s abdomen. Obviously, in Malawi, private healthcare givers are much better than those in public health facilities. Heartrendingly, not all people can manage them. In fact, the office of the Ombudsman, carried investigations in big public hospitals, and compiled its findings in a report known as, ‘Woes of the Womb’. The investigation was conducted following a news article carried by Malawi News of 9th June, 2018 titled “Creation of a Barren Nation” which was followed by a report by Zodiak Broadcasting Station in August 2018 both of which alleged that uteruses were being removed from caesarean section patients at an alarming rate at Queen Elizabeth Central Hospital. During the investigation the office of the Ombudsman reviewed relevant documentation; interviewed medical personnel, Ministry of Health and Population officials; members of regulatory bodies; patients and -family members; and other relevant stakeholders. The investigation made the following findings: 1. The Ministry of Health ‘and Population had failed its duty to provide sufficient staff to cater for the needs for Obstetrics and Gynaecology Departments in all health facilities resulting in compromised quality service delivery in the country. Moreover, in other health facilities where the Ministry of Health and Population appeared to have exceeded the staff establishment, the same had been found to be largely insufficient in reality to meet the actual demand within the catchment area clearly showing that such staff establishments were outdated. Mercy Chipantha and Edwar d Msika VS, s Attorney General (Ministry of Health), Civil Cause Number 206 : oe a 2018. 10 2. There was insufficient ward space, beds and theatres in some central ' hospitals in the country resulting in delays in assisting patients as well as compromised sanitation in the wards, both of which had contributed to the increased number of maternal infections and attendant uterus raptures in some instances. This had contributed to the number of : _hysterectomies and even resulted in deaths. It was the obligation of the * Government to provide these to its people. Failure to provide the same - amounted to breach of duty by Ministry of Health and Population. | 3. Shortage of drugs and medical equipment was a common feature in the health system in the country and the sad part was that despite that being a serious issue it was no longer alarming, it had become part of our lives. However, fact remained that that problem affected real people. In Obstetrics and Gynaecology the stakes were high because there were two lives involved and where hysterectomy had been conducted it was not only the social cultural standing of the woman that was affected but the country’s potential demographics as well. 4, Common occurrence of shortage of drugs in the hospitals spoke to systems failure and neglect of duty. Whilst that may not be a representation of the whole country, our investigations revealed that there was a problem of inadequate or no drugs in Woes of the Womb Systemic Investigations Report some lower level health facilities, which were meant to increase accessibility of health care and reduce congestion in central hospitals. 5. The very fact that there was a bypass fee was an acknowledgement that the structures that were in place were not working to the satisfaction of health service users at lower level health facilities. This pointed to the fact that the said medication that was supposed to be available at lower level health facilities were not even there. Mercy Chipantha ¢ and Edward. Msika vs Attorney General (Ministry of Health), Civil Cause: Number 206 as of 2018. ll 6. Shortage of ambulances and/or fuel ‘in most of the health facilities contributed, to the delay of transporting emergency Obstetrics and Gynaecology patients to referral hospitals for immediate medical attention. This also resulted in worsening of the condition such as uterus rupture of the patients leading to either hysterectomy or death. Failure to provide ambulances/fuel was an omission of duty on the part of Ministry of Health and Population. 7. Most of the disturbing incidents of hysterectomy were those arising from pure negligence and lack of care on the part of health personnel. Only few of such medical personnel were held to account for their misconduct. Due to their socio-economic status the majority of patients did not feel empowered enough to speak out thereby obliging the Ministry of Health and Population to put measures to protect them. Whilst some strategies had been put in place, the same were not far reaching and were/or subjected to heavy resistance and defensiveness from the health personnel themselves. The failure by the Ministry of Health and Population and ‘Regulatory: Bodies to effectively hold such health personnel accountable “for their actions was unreasonable, unfair and amounts to majadministraion. ‘8, Queen Elizabeth Central Hospital had a lot of water leakages due to obsolete water pipes, which the Ministry of Health and Population had neglected to repair. The leakages were contributing to low pressure of running water and in turn affecting general cleanliness of the hospital with high stakes for Obstetrics and Gynecology sections. What a salient, powerful and comprehensive report this is. This report, although it bears investigations carried out in 2018, its findings are still living, prevailing and of great significance until now. Our mothers are still facing the same things Mercy Chipantha and Bdward Msika vs Attorney General (Ministry of Health), Civil Cause Number 206 vee, : : of 2018. ce (12 complained about at that time. The incompetent, negligent and lazy medical personnel are still in practice even today. | What the ist Claimant suffered herein attests to the fact that the public health sector has some work to do in order to improve on health service delivery. By paragraph 7— ‘of its findings, it is very clear that the Ministry of Health and Population bears full responsibility for the atrocities being committed by its health personnel because of shielding them from liability for their negligence. Instead, it is the government that keeps on paying compensations to those who seek legal redress in our courts. In my view, these offences shall continue growing their roots in as far as the bad apples are still being kept away from the law. Section 12 of the Malawi Constitution erijoins all those exercising powers of the state (a medical _ practitioner inclusive) to stand accountable to the people of Malawi. Otherwise, the proper thing is that the Attorney General should start taking up steps by adding individual perpetrators to such suits for them to bear the consequences of their negligence, personally. And if it is the Ministry shielding the bad apples, then the said Ministry should be responsible for payment of compensation from its own national budgeted funding. I think I have commented enough on the Ombudsman’s Report above-stated. The‘Claimants herein suffered great injury and loss; especially the 1st Claimant who almost lost her life in the process. The and Claimant too suffered damage; he was put on syphilis medication on assumption that, because his wife was discharging puss, he might have contracted the said sexual transmitted disease. Somehow, that was, by itself quite embarrassing. He was made to keep on moving here and there in search of his wife’s medical attention. I believe that, if it were not for his support, his wife would not have been saved from death. Mercy Chipantina a and Edward Msika vs Attorney General (Ministry of Health), Civil Cause Number 206 of 2018. 13 I have thoroughly examined her numerous medical reports. They all attest to the danger she was subject to by the Defendant. What I did not see is the fact raised by counsel during his oral closing submissions to the effect that the two would no longer be able to bear children. This I should be honest; I did not find from the medical reports. If anything, this should have been uncovered by medical evidence. All in all, the Claimants deserve substantial compensation. G. CONCLUSION In conclusion, in view of the circumstances available and the devaluation of the Malawi’s currency that has been, actively taking place since 2021, the court awards as follows: 1. The 1st Claimant is awarded MK 82, 000, 000.00 being damages covering all heads claimed by her. 2. The 2n¢ Claimant is awarded MK15, 000,000.00 being damages covering all heads claimed by him. 3, MK8, 000,000.00 being Party and Party Costs. In total, the Defendant shall pay MK105, 000, 000.00 payable within 30 days from today. Made in n chambers today Tuesday the 28" day.of June, 2023. Merey Chip and Edward Msika vs Attorney General (Ministry yf Hel) Civil Cause Number 206 of 2028. Co .