digna thomas massawe and another vs dr b aubroo and others 2023 tzhc 23394 5 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM CIVIL CASE N0. 19 OF 2018 DIGNA THOMAS MASAWE…………………………….1ST PLAINTIFF DIGNA THOMAS (As an administrator of the estate of late Brian Baraka Riwa ……….…….….………… 2ND PLAINTIFF

VERSUS DR. B. AUBROO ……………….……….………….......1ST DEFENDANT MSASANI PENINSULA HOSPITAL CO LTD. …….2ND DEFENDANT SHREE HINDU MANDAL HOSPITAL LTD………….3RD DEFENDANT

JUDGMENT MKWIZU, J: - This case is centered on medical negligence. The victim, Ian Baraka Riwa a three-year-old child (now deceased), was taken to the 2nd defendant Hospital for tonsil treatment. He was on 5/1/2018 admitted for adenotonsillectomy surgery which was to be performed by the 1st defendant. The facts divulged in the plaint show that the child was handed to the 2nd defendant’s nurses in the theatre room while healthy, walking, cheering, and taking care of himself. The child was operated but the operation took more than the anticipated time. The 2nd plaintiff came to learn later after the operation that her child has experienced respiratory difficulties during and after surgery, and that 1 he needed a ventilator machine which the Hospital did not have. The child was then transferred to the 3rd defendant Hospital and admitted for several days, attending routine clinics after his discharge before his demise on 02/1/2020. The 1st plaintiff, the victim's mother suing on her behalf and as an administrator of the estate of Ian Baraka Riwa (the child) believe that the surgeon, 1st defendant, an employee of the Msasani Peninsular Hospital Co Limited (2nd defendant) was negligent in that she failed to take due care and diligence in attending to the child causing him serious sufferings including physical, visual and mental impairment that resulted to the child’s death, that the

2nd defendant's Hospital is vicariously liable for the wrong that was committed by their employee while impugning the Shree Hindu Mandal Hospital Ltd (3rd defendant) for accepting and admitting the child in a critical condition while knowing that it was not a referral hospital and without a detailed report on what had transpired during the operation. She has thus prayed for judgment and decree against the defendants on the following: 1. Payment of the sum of Tshs 440,673,802/= as special damages as per paragraph 12(A) of the plaint.

2. Payment of general damages arising out of the defendant’s negligence to be assessed by the court.

3. Payment of interest at the rate of 21% on item (i) above from the date of filing the suit until judgment.

4. Payment of interest at the rate of 7% on the decreed sum by the court from the date of judgment until full payment.

5. Costs of the suit. 2 6. Any other relief that this Honourable court may deem fit and just to grant. The defendants deny the allegation asserting that no negligence ought to be attributed to them. Before the commencement of the trial, five issues were framed to assist the court in determining the dispute between the parties as follows: 1. Whether the 1st defendant acted negligently in conducting the adenotonsillectomy surgery on the 2nd plaintiff 2. Whether the 2nd defendant is vicariously liable for the act committed by the 1st defendant 3. Whether the 3rd defendant acted negligently in attending to the 2nd plaintiff medically 4. Whether the 1st plaintiff has a cause of action against the Defendants 5. To what reliefs are the parties entitled? During the trial, the plaintiff was represented by Mr. Daniel Ngudungi and Ms. Jackline Kulwa all learned advocate, 1st and 2nd defendants were represented by Mr. David Chilo and Adv Wilson Mukebezi advocate while the 3rd defendant enjoyed the services of Mr. Ngasa Ganja, Emanuel Hando, and Mboransia John both learned advocates. The plaintiff's case had only one witness, the 1st plaintiff, and twelve (12) exhibits, the 1st defendant and 2nd defendants had two witnesses and the 3rd defendant relied on the evidence of one witness. Testifying under oath, PW1, Digna Thomas Masawe said, the 2nd plaintiff (Ian Baraka Riwa) was born healthy

and normal on 26/3/2015 at Agakhan Hospital. Between 2nd 3 and 3rd January 2018, she took her son to Msasani Hospital for a normal checkup. At the hospital, the child was examined by Dr Aubroo (1st defendant). The child was diagnosed with tonsils, and a minor operation (adenotonsillectomy surgery) was recommended to remove the spotted tonsils. The adenotonsillectomy surgery was performed on 5/1/2018 and was advised to take the child with cold foods. According to this witness, the operation was conducted from 11:00 a.m. but went beyond the estimated time. The child was brought from the theatre at around 02:00 pm while still unconscious and on inquiry on what had happened, the 1st defendant told her that the operation was successful except that the child had reacted during the procedure. She was then given some medication to administer to the child upon his waking up and the Doctor left. Shortly thereafter, the child began to sweat and after half an hour he started convulsions. She was told by the nurse that, that wasn’t a good sign to such a patient. She unsuccessfully called 1st defendant for she was at Upanga by then The child was later attended to by 1st defendant who gave the child a phenobarbitone injection and put him on oxygen. Subsequently, the child was transferred to Shree Hindu Mandal Hospital for an ICU facility. From Msasani Peninsula Hospital, Pw1 said, she was

given a paper (exhibit P4) directing her to go to Hindu Mandal Hospital. The patient reached Hindu Mandal in a critical condition not even responding. He was admitted at the ICU, but the surgeon doctor could not be reached by the Hindu Mandal doctors when phoned to explain on the conditions of the patient. It was PW1’s further evidence that , the child stayed on ventilators for six days .The child was crying for 24 hours experiencing convulsions, he could not see, or walk. She was informed that the child could not be 4 okay as he might have got a brain injury. They stayed in the hospital for 15 days before the child was discharged with instructions to undertake physiotherapy, occupational therapy, visual stimulation, and oral therapy. PW1’s testimony was to the effect that the child’s health could not improve despite several therapies done as advised by the Shree Hindu Mandal Hospital doctors. They thus resorted to taking the child to India for further medication. On that process, a medical report from Msasani Peninsula and Shree Hindu Mandal Hospital were required. She obtained and sent medical reports from Shree Hindu Mandal Hospital dated 25/2/2018 issued by Dr. Imran and one from Msasani Peninsula Hospital dated 11/3/2018 by Dr. B. Aubroo (exhibit P6) to India. Describing the two reports before the court, PW1 said, the Msasani Peninsula Hospitals’ report reflects a

successful operation except for the convulsion that led to the child’s transfer to Hindu Mandal ICU care while the Hindu Mandal Hospitals report showed that the child was admitted to Hindu Mandal on 5/1/2018 due to the complication he suffered during or after the surgery and that the child was received with a high fever generalized with tonic seizure and he was automatized during admissions. The Shree Hindu Mandal report detailed that on 20/1/2018 the patient was discharged but diagnosed with regressed milestone with cortical blindness and he was undergoing visual and occupational therapy. She said, the Msasani Peninsular Hospital’s report could not qualify as a medical report that would assist the Hospital in India in identifying the child’s problem. Her appointment was only based on the report issued by Hindu Mandal Hospital. 5 In India, the child was examined and diagnosed with Brain Hypoxia (lack of oxygen in the brain) developed after the operation done on 5/1/2018 and the MRI report (exhibit P7) detected the brain injury. While still in India, stated PW1, the child was able to achieve eyesight through visual therapy and physiotherapy exercises and was advised to go on with the physiotherapy, occupational therapy, and visual stimulation as advised at Hindu Mandal Hospital. She took the child to Muhimbili Hospital for physiotherapy, and some Doctors from Muhimbili were

assisting in the advised therapies at home, but the child's condition could not change. In 2019 she again took the child back to India where it was made open to her that brain damage is a permanent unreversible damage and that the child could not go back to normal. She in support her evidence with the Laboratory reports, Investigations reports, and discharge summary from Sarvodaya Hospital issued in June 2019 as exhibit P8 . In addition to the therapies, Pw1 was advised to take the child to a special school so that he could be stimulated. From India, the child was attending different places for therapies including Muhimbili, Namtenga Rehabilitation, Sinza therapy center, and used various Doctors from Muhimbili Hospital whom she paid 50,000/= per session. The receipt dated 31/4/2018 issued by Namtega Rehabilitation Assessment Therapy was tendered and admitted as exhibit P9. The child was also taken to Genesis Oyster Bay- a special school where she through exhibit P10 paid 1900,000/= as part of the required school fees before his demise. This witness told the court that before the complication her child was schooling at Dar Elite at Mikocheni. After the 6 admission to the special school, the child’s health improved a bit. He could identify things though was still disabled, using diapers and multivitamins. Exhibit P12 was tendered in court to show some of the items purchased to

support the child's life. PW1 blames the defendants for breaching a duty of care. She faults 1st defendant for acting negligently at the recovery stage stating that the child was taken to the patient ward while unconscious and left unattended without care, the Doctor also failed to issue a medical report to support the referral Hospital and in the process of attending to the child, she lost her employment. The 3rd defendant, is imputed for receiving the child while in a coma condition without a report showing the child’s history which would have assisted in knowing the problem. Her prayer is to be paid all the costs used to care for the child and all the claims that she had listed in the plaint. During cross-examination, PW1 admitted to having signed the consent form before the operation on 5/1/2018 listing the anticipated risks that the surgery was to bring to the child. Regarding special damages, Pw1 said, the claimed amount in the plaint is just part of what she spent in the process of his child's treatment and care and the receipts tendered are just part of the document she kept. While accepting during cross-examination by Mr. Ngasa that the death certificate (Exhibit P1) described the place of death as Muhimbili Hospital and cause of death as unnatural , she maintained that the brain damage caused by the Msasani Peninsular Hospital is the root cause of the problem.

Referring the court to paragraph 5,11 and 12 of the plaint, she said, the cause of action is negligence in the surgery process conducted 7 at Msasani Peninsular Hospital by the 1st defendant in which the Shree Hindu Mandal Hospital did not participate., She genuinely appreciated the 3rd defendant’s effort inserted to serve her child's life asserting that even the India Hospital had proposed the same therapies that were advised to her by the Hindu Mandal Doctors. DW1 is Dr. Bindiya Aubroo, ENT specialist, specializing in the areas, of infections. Her evidence was that she met 1st plaintiff at Msasani Peninsula Hospital on 4/1/2018 complaining that her child had been snowing very badly while sleeping waking up gasping for air with frequent respiratory tract infections and that the child had been taken to several hospitals and treated with antibiotics several times and therefore she was looking for specialized help. She examined the child and checked the throat, nose, and ear and diagnosed a tonsil on the child’s throat . She recommended for an X-ray to check for Adenoid tissues. The combination of physical examination and X-ray report led to the conclusion of chronic Tonsillitis and the treatment suggested was the removal of the Tonsils and the adorned of the child as the full Blood pictures showed no infection. She (DW1) discussed the suggestion with the child's mother ( PW1)

who agreed to the surgery asking for the earliest possible time. The surgery was scheduled on the following day morning, that is 5th January 2018. On 5th January,2018, the child and the mother came to the Hospital at around 8.00 am. They were registered at the reception of Msasani Peninsular Hospital and were transferred to the ward to get prepared for all the procedures before surgery. In the ward, one of the general doctors had received the child. They were sent for other Blood investigations and the result were ready at around 10.00hrs. She (DW1) discussed with the 8 Pw1 the possible complications that might arise in any surgical procedure. On that process, PW1 was given the consent form, read and signed it. The child was checked by an anaesthetist doctor before being taken to the Surgery room and allowed the procedure to go ahead. Around 11 o'clock the child was taken to the theatre by the nurse. The child was crying. They laid the child on the bed and the anaesthetist began by putting the child to sleep. The medication was inserted into the child's cannula. After the child is fully asleep, the anaesthetist puts the tube inside the throat/ trachea to allow the oxygen supply during the procedure and was then alerted to start the procedure. Describing the process taken during the complained surgery, DW1 said, she had a scrab nurse near the table. They covered the child with

the theatre drippers (theatre gowns). She opened the child’s mouth and inserted a Mouth Gag to leave the mouth open during the procedure followed by the insertion of the Hippo Pharyngeal pack (a long piece of gauze). She placed a nasal pharyngeal pack (another piece of gauze) and held the Tonsil and was told by the anaesthetist to stop because the child was in cardiac arrest (the child's heart had stopped). She then removed the Hippo Pharyngeal pack and started resuscitation (CPA)of the child. After 15 minutes of the procedure, the child's heart started to function again. They never resumed the operation. They removed one gauze set behind the nose and left the anaesthesia team who was administering oxygen to the patient and Oxygen circulation to the child was reading 99 to 100% and lastly they decreased the supply of oxygen and walked up the child. 9 Dw1 went further to state that the child remained in the operation table for approximately 45 minutes circulating the oxygen at 99 to 100 % by himself with the tube before the anaesthetist decided to remove the tube from the child. The child was again kept under observation for another 45 minutes with the monitor reading 99 to 100 % oxygen before they all decided that the child could go to the ward but under close observation. After the explained procedure the child was handed over to the nurse in charge of the ward in the presence

of the mother (PW1). Thirty (30) minutes later, DW1 checked the child and found him breathing fine but still asleep. She informed the mother that the operation wasn’t successful due to the child's reaction at the theatre and instructed her to give the child cold water first when he is awake and the child was handed over to the General doctor at the ward to keep up a close monitor of him. Dw1 stated further that, she was after two hours informed that the child had started convulsions. She gave instructions on the medication to start, and the child was put under oxygen in the ward. However, they decided to take the child to the ICU for close monitoring. The child was transferred to Shree Hindu Mandal Hospital on the same date 5.1.2018 in an ambulance with oxygen. At Hindu Mandal, the child was monitored for five days. DW1 said, the reason for cardiac arrest, could be a reaction to anaesthesia medication which was on that operation administered by the anaesthetist Frank Ziwa who concluded that the child had reacted to the medication. 10 During Cross-examination, this witness said, the decision to take the child to the ICU care was made after the convulsions. She also admitted that exhibit P6 is not a medical report but rather a recommendation letter for traveling abroad. Another defence witness is FRANK ZIWA MHINA, (DW2) an anaesthetist at Peninsula Hospital. Recounting for the

complained incident, Dw2 said, Ian Baraka was a client at Msasani Peninsular hospital who was on 5/1/2018 attended for adenoids. He saw the patient and talked to his mother to see if the child was in a condition allowing to proceed with the operation. The child was to undergo the operation for he had stable health. At the theatre, Dw2 said, he administered the gas to the child and inserted a cannula, and an endo trachea tube for air before the operation. After that process, the surgical doctor began the operation. After like 10 minutes the child's heart stopped working and he ordered the Doctor to stop the operation, ran to resuscitation for about 15 minutes and managed to restart the heart. In the end, they agreed that they should stop the operation. The child was monitored for about half an hour and he started stiffing localizing pain. They removed the tube and stayed with the child for another half an hour to monitor his recovery before he was taken to the ward. He suspects medical reaction as the cause of the cardiac failure. The child started convulsions two hours after he was taken to the ward. The ward Doctor managed the situation as at that time he (DW2) was in the theatre room going on with another operation. He went to see the child after the operation and found him on oxygen. Dw2 was of the view that the cause of convulsions is the insufficient flow of blood to the

brain during resuscitation. Like PW1 and DW1, this witness said, they agreed 11 that the child should be transferred to ICU care at Hindu Mandal Hospital and he believes that there is no negligence committed by the Doctor. During cross-examination DW2 said during cardiac arrest, the oxygen went below 80 but after the resuscitation it raised to 100 %. They only took the child to the ward after he able of maintaining oxygen saturation of 98% DW3 is Dr. Daniel Herbert Njiro, working at Msasani Peninsula Hospital as a general practician. He said Ian Riwa was their client in the year 2018. He received the child in the ward from the surgical doctor just after the operation. After 30 minutes, he was called by a nurse telling him that the child has started convulsion. He rushed to the patient and made sure that the child was in a proper circulation of oxygen. He measured the oxygen and found that it was circulating at 100% and gave the child medication which managed to end the convulsion after like 10 minutes. He also gave the child maintenance medication to prevent the repetition of the convulsions. After that process, he informed the child’s surgeon who came after a short while to check the patient. They agreed that the child needed an Intensive care Unit but since their hospital had no ICU facility, they discussed the issue with the child’s mother and in the best interest of

the mother they took the child to Shree Hindu Mandal Hospital. Dw3 said, technically, the child’s convulsions might have been caused by cardiac arrest resulted from anaesthesia medication side effects. Explaining how would that cause congestion, DW3 said, stoppage of the heart causes a low supply of blood to the brain resulting in oxygen deficiency to the brain, leading to the death of some brain cells hence convulsions. Cardiac arrest can happen at any time and any place , when 12 asleep, walking, or standing whether by a patient or a normal health person. He was emphatic that very few people survive cardiac arrest, but Ian Baraka survived. He was also of the view that the resuscitation (CPR) done to Ian Baraka is the standard procedure. On why they transferred the child to Hindu Mandal hospital, Dw3 said, the transfer was adopted for the interest of the patient and urgency. They found it easy to send the child to the Hindu Mandal Hospital because the process to Muhimbili would have taken longer, the same to Aghakan Hospital. The patient was given a referral letter and the reasons for referring the child to Hindu Mandal Hospital was only for ICU Care . Answering the questions during cross-examination Dw3 said, brain damage is an irreversible effect, and even if Ian Baraka was to be rushed to Muhimbili the brain damage problem would not have been resolved. He said, according to

exhibit P1, the deceased child is shown to have died on 2/1/2020, two years after they had attended the child. This witness was insistent that the unnatural death indicated in the death certificate means unanticipated death like death by accident and that there must be other documents explaining the reasons for the death to support the findings recorded in the death certificate. Dr. Ismail Dawood Sangeye, (DW4) is also a medical doctor specializing in emergency medicine and ICU working with the Shree Hindu Mandal Hospital emergency and ICU section. He knows Ian Baraka Riwa as one of the patient he personally attended on the material date. Speaking of the incident at issue, Dw4 said, Ian Baraka was referred to their Hospital from Msasani Peninsular Hospital for ICU facilities. They received the patient in an ambulance with a referral form(exhibit P4) telling them that 13 the patient had developed convulsions after the operation of an adrenal tonsillectomy, and they were requested to manage the convulsions at the ICU and stabilize the patient to avoid further convulsions and they managed the situation. About the standards of their hospital, DW4 told the court that The Shree Hindu Mandal Hospital is one of the Reginal Referral Hospitals with an International standards ICU facilities. He said, they accepted the patient in question because refusal to receive the patient who was at

their doorsteps in an ambulance would have been a gross negligence. Explaining the cardiac arrest, DW4 said, cardiac arrest means the stopping of the heartbeats. In that state of affair only six minutes are required to revive the functioning of the heart for a person to come alive otherwise there is a possibility of the brain being damaged. Speaking on what may be the cause of the cardiac arrest, Dw4 said, cardiac arrest in surgery processes may be caused by the anaesthesia or excessive bleeding of the patient during the surgery and Brain Damage is the consequence of the cardiac arrest subsisted for about 15 minutes. He insisted that if the brain was already damaged by the cardiac arrest that had happened during the operation, no Hospital or Doctor would reverse such a damaged brain. To him, Shree Hindu Mandal doctor did their best to serve Ian Baraka's life from day one and therefore there should not be any charges against them. He prayed for the dismissal of the suit with costs. During cross-examination, Dw4 said, that at the ICU they gave the patient first aid to prevent convulsion followed by a CT scan and blood test. The CTC Scan results were normal, but the patient had an infection which they 14 treated with antibiotics. The child was discharged with cortical blindness, physically weakness as he could not walk, could not maintain his neck and all four limbs were spastic.

He was discharged because he had no dangerous signs and was advised to attend physiotherapies and further advice from brain doctors and paediatricians. When asked about what Halothane is all about, DW4 said, that Halothane is an anaesthesia medicine and one that is recommended to children and adults as well administered by anaesthetists who are also responsible for monitoring the heartbeat, pressure, and oxygen circulation during the surgery and take immediate remedial measures after the cardiac arrest. DW4 was of the position that the doctor was right to stop the operation after she was told by the anaesthetists and that the surgeon would have been the cause of the cardiac arrest if the patient had been bleeding severely. While admitting that the detailed report from Msasan Peninsular Hospital would have helped in knowing the health baseline of the patient, DW4 said, they could not have remedied the brain damage caused by the cardiac arrest that subsisted for about 15 minutes even if the report was availed to them. He was insistent that the patient was discharged with a regress milestone, which is neuronal damage and cortical blindness which may be a result of anaesthesia and severe bleeding. Answering a question on how the patient was brought to their Hospital, Dw4 said, the patient came with convulsion, emitting bubbles in a semi- comatose. He was in an ambulance with a

nurse, with oxygen accompanied by his parents. 15 After the parties have closed their cases, their counsels were able to file their final/closing submission which I do not intend to reproduce but refer to them during the analysis of evidence in the determination of the issues. As alluded to above, this case is based on the tort of medical negligence. The term negligence was defined by this court in the case of Hamis Jonas Kiminda (as the Administrator of the Estate of the late Sabra Ahmed) versus M/S Regency Medical Centre Ltd ,Civil Case No. 214 of 2017 as a breach of a legal duty to take care which results in damage undesired by the Defendant to the Plaintiff. The phrase medical negligence was again in Bolam V. Friern Hospital Management Committee, (1957) 2 All ER 118, defined as:- “…failure to act by the standards of reasonably competent medical men at the time.” And articulating on the duty owed to the patient, Halsbury’s Law s of England, 4th Edn., Vol. 26 pp.17-18 states: “ Duties ow ed to the patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in

deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient”. 16 Extracted from the above authorities is that to successfully establish the tort of medical negligence, plaintiffs need to prove (i) the usual medical practice in place ;(ii) failure by the defendant to follow the practice, that the procedure adopted is below the standards of a reasonably competent practitioner in the same field and (iii) that the plaintiff has suffered damage as a result of such malpractice. I have carefully considered both pleadings and the parties' evidence. PW1’s complaints are that (i) the surgery was negligently done, (ii)she was not informed of the reaction of the child during the operation, and that the operation was not successful and (iii) that the 1st defendant left the unconscious patient after the operation without a ventilator leading to hypoxia. There is no dispute that the child Ian Baraka Riwa was attended by Dr Aubroo (1st defendant) at the 2nd defendant’s Hospital on 4th January 2018. It is also agreed that the child was diagnosed with tonsils, and a minor operation (adenotonsillectomy surgery) was recommended and done. It is also evident that the patient-child had encountered a cardiac arrest during the operation. The defence evidence attributes the side effect

of anaesthesia to the cardiac arrest complication after which efforts were made to revitalize the child and manage to retain his life. DW2, the anaesthesia of the day told the court that the cardiac arrest was not caused by the surgery, but rather by possible side effects of halothane which is a medication that was induced to the child to make him sleep during the surgery. This fact was also supported by DW-3 and DW-4, who are all qualified doctors. During cross-examination, DW4, a doctor from Shree Hindu Mandal was specific that cardiac arrest in surgery may be caused by the anesthesia (dawa ya 17 usingizi) or over bleeding of the patient during the surgery. Since no evidence of over bleeding during the complained surgery was brought before the court and no professional doctor called to affirm that the complained surgery itself caused the cardiac arrest, then I find no reason to suspect the defence evidence on this aspect. It is also certain from the pleadings and evidence that 1st plaintiff, the child mother was aware of the surgery and the entire process even before the surgery itself including the purpose of the surgery which aimed at removing the detected tonsils, time of the surgery, the potential complications of the surgery and the undertaken procedure during the operation. During cross-examination,PW1 admitted that she was informed of the possible complications that

may arise from the surgery and she gave consent for the surgery to proceed by signing the consent form. On whether the 1st plaintiff was notified of what had transpired during the operation, her evidence during cross-examination goes thus: “After the operation, I was told what was done to the child and showed the tissues removed from the child’s nose. She also told me that the child had reacted during the operation.” This evidence negates the second complaint by the plaintiffs. What about the complaint of mismanagement of the patient during the post-surgery period? The defence evidence is categorical that after the cardiac arrest, they immediately stopped the operation and started resuscitation (CPA)of the child which was only successful after 15 minutes of the procedure. They then monitored the child’s oxygen circulation for not less than 45 minutes. The child started waking up and localizing pain. They removed the tube and stayed with the child for another half an hour 18 to monitor his recovery and they transferred the child to the ward when it was able to maintain saturation without oxygen. At the ward, the child was handed over to the nurse in charge of the ward in the presence of the mother. He was attended to by the surgeon after 30 minutes of his arrival at the ward. After two hours in the ward, the child started convulsion which was managed by the Ward Doctor

in cooperation with the surgeon. In her evidence, the Surgeon Doctor said: “I came to see the child approximately 30 minutes after the child was taken to the ward. The child was still sleeping. Breathing fine. I spoke to the mom and told the mom that the child would be awake, and I directed her to give the child cold water first. I told the mother that I did not finish the operation when the child reacted at the theatre. I called the General doctor at the ward to hand over the child and to keep up a close monitor of the child and left the mom. After two hours in the ward, the child started the convulsion, I was called and gave the instructions on the medication to start. I came back to see the mother and the child and at this time the child was put under oxygen in the ward. After the convulsions and oxygen, I and my team decided to take the child to the ICU for close monitoring. ” DW2 who was supervising another operation during the complained convulsion said he saw the patient thereafter and found him on oxygen. This witness was of the view that the cause of the convulsion could be the insufficient flow of blood to the brain during resuscitation. Both parties are at one that the child was transferred to Shree Hindu Mandal Hospital 19 on the same date 5.1.2018 in an ambulance with oxygen. According to DW3, given the emergency caused by the complications that happened during and

post-surgery, the decision to take the child to the best ICU care was made in the best interest of the child. As stated before, the plaintiff's grievance is that the patient was taken to the patient ward while unconscious and left unattended, without any care which resulted into his death. A splendid observation was made in Whitehouse v. Jordon & Another (1981) 1 All ER 267 that: "The test whether a surgeon has been negligent is w hether he has failed to m easure up in any respect, w hether in clinical judgm ent or otherw ise, to the standard of the ordinary sk illed surgeon ex ercising and professing to have the special sk ill of a surgeon..”( emphasis added) This being a civil case, the burden of proof lies on the plaintiff to establish the claim and the standard is always on the balance of probabilities, consistent with section 110 of the Tanzania Evidence Act Cap 6, RE 2022. This position was expounded by Sarkar on Sarkar’s Laws of Evidence. 18th Edn., M.C. Sarkar, S.C. Sarkar, and P.C. Sarkar, published by Lexis Nexis, page 1896 which states as follows: "... the burden of proving a fact rests on the party w ho substantially asserts the affirm ative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is an ancient rule founded on consideration of good sense and should not be departed from without strong reason .... Until such

burden is discharged the other party is not required to be called upon to prove his 20 case. The Court has to ex am ine as to w hether the person upon w hom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed based on the w eakness of the other party..." [Emphasis added]. The Plaintiffs through PW1 have failed to prove that what the 1st Defendant did in the surgery room was contrary to the established medical standards such that another surgeon specializing in Ear Nose, and Throat (ENT) would not do. This witness has also failed to prove the mismanagement of the patient during the post-surgery period. The 1st defendant is also accused of not availing the 1st plaintiff of the child's detailed proper medical report. However, there is nothing in the plaintiff's case entailing the professional medical report that Dw1 would have issued to the patient on his transfer to Hindu Mandal Hospital which was not issued. The only information availed before the court is the alleged undetailed report without anything that would assist the court in ascertaining whether the same is substandard or not. I think this being professional misconduct imputed here, the plaintiff ought to have gone further to show to the court what ought to have been a proper medical report under the circumstances and what was not done. Short of that,

the complaint remains unproven. This findings find support from Lord Denning in Hucks v. Cole & Another, (1968) 118 New LJ 469, where it was held : “A medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable 21 course of treatment in preference of another. A m edical practitioner w ould be liable only w here his conduct fell below the standards of a reasonably com petent practitioner in his field . (Emphasis added) There is an effort by PW1 to connect the complained surgery, the child's post-surgery treatment with his death raising an alarm as to the cause of death of the child Ian Baraka Riwa on 2/1/2020. However, the death certificate brought before the court as exhibit P1 describes the place of death as Muhimbili Hospital and the cause of death as Unnatural without material particularity connecting the defendant's acts or omissions with the alleged death. Answering questions during cross-examination, Pw1 refuted the death certificate details, particularly on the place of death. She was so specific that the child's death did not happen in Muhimbili and she is not aware of any postmortem examination conducted at Muhimbili Hospital to establish the cause of death that caused the entry in the death certificate. This evidence, therefore raises doubt to the

trustworthiness of the complaints levelled against the respondents. I find the first issue on whether the 1st defendant acted negligently in conducting the adenotonsillectomy surgery on the 2nd plaintiff negative. Related to the above is whether the 3rd Defendant acted negligently in attending the 2nd Plaintiff. The 3rd defendant's liability is connected to her admitting the child while knowing that she is not a referral hospital and without a detailed report from the 2nd defendant’s Hospital. There is no evidence found to support this claim. Contrary to the registered complaints against the 3rd defendant, Pw1 evidence was an appreciation of the services given to her child by the 3rd defendant. She was categorical 22 that given her child's state of affairs after the operation, the Hindu Mandal Hospital was duty-bound to admit the child. PW1 was specific that the third defendant's doctor did their best to serve her child's life. This evidence left the third defendant flawless. The third issue is therefore unproven. The second issue implores the court to find out whether the 2nd defendant is vicariously liable for the act committed by the 1st defendant. The doctrine of vicarious liability is based on the principle that the master or principal is liable for tortious acts or omissions of his servant or agent, committed in the course of the servant's or agent's employment.

The Black’s Law Dictionary, Henry Campbell Black, 1990 defines Vicarious Liability to mean: "The imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. Indirect or imputed legal responsibility for acts of another; for example, the liability of an employer for the acts of an employee." Expounding the above position in Lazaro Vs. Mgomera [1986-1989] 1 EA 302, the court held: "An employer is vicariously liable if his servant commits a tort in the course and within the scope of his employment. This does not absolve the liability of the servant but only means that the employer is also liable as the tort was committed when the servant was supposed to be acting in place of or for the employer, whose act it becomes." 23 It is therefore clear from the above authorities that the tortious liability doctrine is a rule of responsibility in which an employer is held strictly liable for the wrongful acts of his employees, provided that they are committed in the course of the tortfeasor's employment. There is no doubt that the 2nd defendant was the 1st defendant's employer It is also uncontroverted that the complained surgery was done in the cause of the 1st defendant's employment with the 2nd defendant. But that alone does not make the 2nd defendant vicarious liable. As demonstrated above, the 2nd Defendant's

liability cannot stand until the 1st Defendant’s negligence is proved, the claim that has remained unestablished. The 2nd issue is thus answered in negative. The conclusion in the 1 to 3rd issues above renders the 4th issue irrelevant to the matter. As to the reliefs, it is the order of the day that having failed to prove their claims, the plaintiff's case is dismissed with costs to the defendants. Order accordingly. Dated at Dare Es Salaam this 5th December 2023 E.Y. MKWIZU

JUDGE 5/12/2023 24