[2024] UGHCCD 144

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **(CIVIL DIVISION)**

### **CIVIL APPEAL No. 049 of 2021**

### **(ARISING FROM CIVIL SUIT NO. 465 OF 2019)**

#### **1. NABBALE KIRABO CLARA**

*(Suing through Tonny Sseremba and Nakawungu Susan; Father and Mother respectively as next friend)*

**2. TONNY SSEREMBA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

# **3. NAKAWUNGU SUSAN**

## **VERSUS**

# **THE REGISTERED TRUSTEES OF KAMPALA ARCHDIOCESE** *T/A* **ST. FRANCIS HOSPITAL NSAMBYA::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

### **JUDGMENT**

The appellants brought this appeal arising out of the decision of the Uganda Medical and Dental Practitioners' Council dated 22nd October 2021 in the matter of an inquiry into the alleged medical negligence of the Registered Trustees of Kampala Archdiocese t/a St Francis Hospital Nsambya regarding failure to Disclose Information about Screening and Treatment to the parents of Nabbaale Kirabo Clara leading to Permanent Blindness. (The alleged negligence regards the failure to disclose information about screening and treatment of Retinopathy (ROP) to the parents of Nabbaale Kirabo Clara leading to permanent blindness of the 1st appellant.)

The background of the matter is that the 3rd appellant was admitted to the respondent hospital on 26th February and had spontaneous delivery on 27th February 2018. The 1st appellant was born prematurely on this date with severely low birth weight of 900grams (less than 1 kg). The 3rd appellant was discharged on 28th February 2018 but stayed in hospital caring for the 1st appellant. The 1st appellant was in the nursery for 55 days and suffered numerous life threatening conditions/ comorbidities of prematurity at the Hospital. She was admitted at the Intensive Care Unit for two months.

The appellant's counsel contended that during this period, the 1st appellant was under the care of the hospital who were in charge of handling any medical conditions pertaining to her. The 1st appellant's prematurity placed her at the risk of Retinopathy of Prematurity (ROP)-a condition that cause total blindness in premature infants, which conditions is supposed to be screened and treated within three months of the premature birth.

The respondent contended that the appellant's complications were successfully managed from her admission until her discharge on the 23rd day of April 2018. She was discharged with a recommendation from the respondent to the 2nd and 3rd appellants to go to Mengo Eye Care clinic to screen her eyes to rule out the possibility of having Retino of Prematurity, an eye condition screened by only a few specialists in the medical profession. The respondent also advised the 2nd and 3rd appellant to return to hospital for a review date of 3rd May 2018 to report on the results of eye screening.

The appellant's counsel contended that the requirement of screening was known to the respondents who did not inform the 2nd & 3rd appellant hence leading to the total blindness of the 1st respondent. While the respondent contended that they learned of blindness by virtue of the demand notice dated….to the respondent's consternation, the appellant's blamed the blindness on the respondent.

On 22nd day of October 2021 the council delivered its decision and found that the medical personnel of the respondent were not professionally negligent in managing and treating the 1st appellant.

The appellants being aggrieved and dissatisfied with the whole decision, findings and resolutions of Uganda Medical and Dental Practitioners' Council decided to bring this appeal against the whole decision of the Council.

- *1. The Council erred in law and fact when, in its findings and conclusion, it failed/neglected/refused to determine the issue framed for determination, namely, whether the respondent's medical personnel were negligent in failing to advise and disclose information to the 2nd and 3rd appellants regarding the condition of the 1st appellant's eye sight in her permanent blindness.* - *2. The Council erred in law and fact when it ignored the admission by the Head of the Respondent's Neonatal Unit, Dr. Victoria Nakibuuka Kirakira that the respondent never informed the 2nd and 3rd appellants about the need to screen for ROP there by erroneously concluding that the Respondent not negligent.* - *3. The Council erred in law and fact when it failed to properly evaluate the appellant's evidence and that of independent experts about the need for timely information about screening, thereby erroneously concluding that the respondent was not negligent in omitting to disclose information to the Appellants about screening and treatment for ROP.* - *4. The Council erred in law and fact when it ignored the expert evidence of Dr. Ludovica Tindyebwa Kabombora that ROP must be screened after 28 days and that the condition is treatable if screening is done in time.* - *5. The Council erred in law and fact when it ignored the expert evidence of Lodovica Tindyebwa Kabombora that the 1st appellant could have been screened for ROP from the Neonatal Intensive Care Unit without affecting her health thereby erroneously concluding that the ROP screening could not have been done in the Neonatal Intensive Care Unit at the Respondent's Hospital.* - *6. The Council erred in law and fact when it failed to evaluate the evidence of the 2 nd appellant concerning the duty to disclose information to the appellants thereby erroneously arriving at the conclusion that the 1st appellant could not have been screened in the circumstances.*

WHEREFORE the appellant prays that this Honourable Court vary the Council's decision and make the findings and orders sought by the Appellants, namely;

- *a) That the respondent's medical personnel were negligent when they refused and/ or failed to advise and disclose information to the 2nd and 3 rd Appellants regarding the condition of the 1st appellant's eye sight, resulting in permanent blindness;* - *b) That the respondent's medical personnel failed in their duty to obtain the informed consent of the 2nd and 3rd Appellants before, during and after taking medical decisions that resulted in the 1st Appellants permanent blindness;* - *c) That the respondent pays the quantifiable costs of UGX 120,000,000 incurred by the appellants as a result of the Respondent's failure to disclose information in a timely manner culminating's in the 1st appellant's permanent blindness;* - *d) That the respondent pays compensation to the 1st appellant for the permanent blindness and its attendant inconveniences resulting from their negligent failure to disclose information about ROP screening and treatment in a timely manner;* - *e) That the respondent pays the 2 nd and 3rd appellants' compensation for inconvenience, mental torture and anguish they suffer as a result of their negligent failure to disclose information about ROP screening and treatment in a timely manner resulting in the 1st Appellant's permanent blindness.* - *f) That the respondent pays interest at 30% per annum on the monetary awards hereabove from the date of judgment until payment in full.* - *g) That the respondent pays the costs complaint.* - *2. Sets aside the decision of the council dated 22nd October 2021.* - *3. Costs of this appeal and in the complaint be awarded to the Appellant.*

The appellants were represented by *Counsel Matanda Gerald* while the respondent was represented by *Counsel Francis Buwule.*

The parties filed their written submissions which I have considered in this judgment and analysis.

# *Duty of the Court*

It is trite law that the duty of this Court as first appellate court is to reevaluate evidence and come up with its own conclusion.

This position was reiterated by the Supreme in the case of *Kifamunte Henry v Uganda SCCA No. 10 of 1997*, where it was held that;

"*The first appellate court has a duty to review the evidence the evidence of the case and to reconsider the materials before the trial Judge. The appellate Court must make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it*."

I have taken the above principles into account as I consider the Appeal. I have considered the record of proceedings and the lower Court/tribunal and have considered the written submissions of both parties.

The major issue consideration deduced from the grounds of Appeal is;

# *Whether the respondent's medical personnel were negligent in failing to advise the 2nd & 3rd appellant regarding the condition of the 1st appellant's eye sight in her permanent blindness*

# *Determination*

*Whether the respondent's medical personnel were negligent in failing to advise the 2 nd & 3rd appellant regarding the condition of the 1st appellant's eye sight in her permanent blindness?*

The appellants' counsel submitted that in medical negligence, the test is negligence is the standard of the ordinary skilled man exercising and professing that special skill. The respondent was in charge of dealing with any medical conditions pertaining to the 1st appellant during her stay at hospital. They contend that the respondent owed a duty of care to the 1st appellant and they breached that duty when they failed to inform the 2nd and 3 rd appellants about the need for screening for ROP among premature babies and the need for subsequent treating within one month of birth of premature.

It was further contended that Dr. Victoria Nakibuuka Kirakira who was the respondent's witness confirmed that she was aware that screening for ROP was required for premature and this information was never relayed to the 2 nd and 3rd appellants and according to counsel, this was critical information which was within their knowledge.

The respondent's counsel submitted that the respondent had a duty of care towards the appellants, a duty to manage her health according to the best possible standard within its ability and keeping in mind the limitations in its institution and the country as a whole. The respondent discharged that duty.

The respondent contended that they had a duty to shall all accurate information within its knowledge and practice according to the ordinary practice, which in Nsambya Hospital, was upon discharge in accordance with Article 10 of the Patient's Charter. The 1st appellant suffered condition that was exacerbated and yet interlinked with her oxygen dependence. To save her, the respondent prioritized her life until the date of discharge.

The respondent submitted that there is no law or guideline advising the respondent to act in a contrary manner to how the respondent did as our legal framework. Counsel submitted that the appellants were informed in time to do screening at Mengo Hospital since the treatment could be done all the way to 40 weeks and the expert witness-Dr Tindyebwa dispelled the appellants earlier allegations that treatment of the 1st appellant outside three weeks amounted to an inevitable result of blindness.

Medical knowledge does not seem to agree with the appellant's assertion that had the information been delivered in time, blindness would have been totally avoided. Therefore, the blindness suffered by the 1st appellant cannot by any stretch be solely attributable to the respondent nor is it indisputably preventable even at the stage of treatment.

Counsel further submitted that the condition of Retinopathy of Prematurity and the screening protocols that govern it vary fro jurisdiction to jurisdiction. The guidelines for screening must always reflect the peculiarities of the climate in which doctors treat patients. Uganda is still at the nascent stage of ROP. By 2018, only Kenya and South Africa were the

only two African nations with exhaustive national screening guidelines for Retinopathy of Prematurity.

# *ANALYSIS*

The test of whether an act amounts to professional negligence is that of the standard of an ordinary skilled man exercising and professing to have that specialty skill. Accordingly, a doctor is not negligent if he exercises the ordinary skill of an ordinary competent man professing to have that special skill. Negligence has many manifestations it may be active negligence, passive negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, wilful or reckless negligence or negligence *per se*. See *Poonam Verma v Ashwin Patel AIR 1996 SC 2111*

A person who holds himself/herself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge and knowledge for the purpose. Such a person when consulted by a patient owes certain duties:-

- (i) Duty of care in deciding whether to undertake the case. - (ii) Duty of care in deciding what treatment is to be given. - (iii) Duty of care in administration of that treatment.

A breach of any of these duties gives the patient a right of action in negligence.

Where you get a situation which involves the use of some special skill or competence, the test as to whether there has been negligence or not is not the test of the man on top of the Clapman omnibus, because he has not got that skill. The standard of care is that 'reasonably expected of a reasonably competent professional with respect to a particular field". That is, a specialist must exercise the ordinary skills of his specialty. *See Maynard v West Midlands regional Health Authority [1984] 1 WLR 634; Yeo Peng Hock Henry v Pai Lily [2001] 3 SLR(R) 555* In medical negligence claim, the onus is on the plaintiff to establish the negligence. Claims founded on medical negligence have been known to be difficult to establish and expensive as well. The evidence required to be adduced by the injured usually is in the domain of the hospital and doctors. Where records in hospital are tendered in court, it does not have much impact. The injured inevitably relies on expert testimony to tell the court whether a reasonable person in the position of the doctor would have made the same diagnosis treatment or procedure adopted.

Where the questions of assessment of relative risks and benefits of adopting a particular medical practice is in issue, the standard of a reasonable view will presuppose that the relative risks and benefits have been weighed by experts in forming their opinion. Once a medical officer applies a drug to a patient in accordance his professional knowledge and skill, the resultant effect of such application of drugs cannot be attributed to negligence on the part of the medical officer. *See Abi v CBN (2012) 3 NWLR p.1*

The nature and character of medical negligence was further explained by *Musoke Elizabeth J* (as she then was) in *Sarah Watsemwa Goseltine & Anor v The Attorney General HCCS No. 675 of 2006* as follows:

*"The principles regarding medical negligence are well settled. A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care. A doctor cannot be negligent merely because in a matter of opinion he made an error of judgment. It is also well settled that when there are genuinely two responsible schools of thought about management of a clinical situation, the court could do no greater disservice to the community or advancement of medical science than to place the hallmark of legality upon one form of treatment. See a Legal concept paper Medical Malpractice/Negligence in Uganda; Current Trends and Solutions by Justice Geoffrey Kiryabwire."*

Her *Lordship Musoke J* in the above case noted that:

*For negligence to arise there must have been a breach of duty. Breach of duty must have been the direct or proximate cause of the loss, injury or damage. By proximate is meant a cause which in a natural and continuous sequence,* *unbroken by any intervening event, produces injury and without which injury would not have occurred. The breach of duty is one equal to the level of a reasonable and competent health worker. To show the deviation from duty, one must prove that;*

- *1. It was a usual and normal practice.* - *2. That a health worker has not adopted that practice.* - *3. That the health worker instead adopted a practice that no professional or ordinary skilled person would have taken.*

The application of the above adumbrated principles when applied to the present circumstances of the case shows that the Uganda Medical and Dental Practitioners Council was alive to the same and their decision was arrived at in consideration of the same. The council rightly noted in its findings as:

- That the 1st complainant had many life threatening complications that required management in the Neonatal ICU - That the respondent prioritized on saving the life of the 1st complainant and only told the parents about the need for screening for RoP at discharge from hospital - That moving the 1st complainant to another hospital for screening would endanger her life during her stay at hospital, because of the many complications that she developed. - That it was not possible to screen the 1st complainant for RoP at 28 days after birth because she was too critically ill to be transferred. - That RoP screening was not possible while in NICU because the respondent did not have Retinal Eye Specialist to do screening in Nsambya Hospital NICU. - That the complainants were recommended at discharge to be reviewed by an Ophthalmologist at Mengo Hospital Eye Clinic to rule out RoP.

▪ That by the time the screening was made (2 weeks after discharge) the 1 st complainant's condition had reached RoP stage 5 with total retinal detachment.

The appellants counsel is faulting the Council for failure to find the respondent employees negligent for allegedly not giving the 2nd and 3rd respondent information about screening the 1st appellant. The above findings clearly show that the respondent had priority on saving the life of the critically ill minor. Indeed, the screening was prescribed at discharge from the hospital and this was to be done out of the hospital since they never had a Retinal Eye Specialist.

This court does not agree with appellant's counsel insistence that the screening was possible inspite of the 1st appellant being in critical condition. *That moving the 1st complainant to another hospital for screening would endanger her life during her stay at hospital, because of the many complications that she developed.*

*That it was not possible to screen the 1st complainant for RoP at 28 days after birth because she was too critically ill to be transferred.*

The arguments being made at this stage after saving the life of the 1st appellant should not be used to disregard the professionalism exhibited in saving a life. The Council found; *That in managing severely sick infants, the priority was given to managing the airway, breathing, circulation; life saving measures. This was in line with current guidelines of managing preterm infants in Uganda.* The eye sight would not have been an issue if the 1st appellant's life had not been saved.

The findings of the Council were supported by the expert Opinion of Dr. Kasadhakawo Moses-Senior Consultant/Assistant Clinical Head Ophthalmology, Mulago National Referral Hospital who opined as follows;

*"That as a Retinal Fellow, the respondent did its very best to save the life of the baby who would most certainly have passed away had the 1st complainant been managed in centers around Kampala not as well equipped as Nsambya Neonatal ICU.*

*He stated that the 1st complainant was battling with many life-threatening conditions which were being managed by the respondent and therefore could not be transferred to Mengo Hospital for RoP Screening. He noted that there are only two retinal surgeons in the country based in Mengo Hospital at Mengo and none at Nsambya. He concluded that there is urgent need for nationwide intervention in RoP screening and treatment."*

The above was equally corroborated by the evidence of Dr. Tindyebwa Ludovica Kabombora-Consultant Ophthalmologist who testified for the appellants that; *" ROP does not happen before one month and the 1st complainant should have been screened after 28 days. She testified that the condition is treatable if screening is done in time. She also testified that the 1st complainant was critically ill during admission at Nsambya Hospital, creating possible danger if moved for screening to another facility. She could only have screened at Nsambya. She stated that the Nsambya Hospital Team did a great job managing the child and saving her life."*

The Council evaluated the evidence on the record as fellow medical professionals and applied the required standards to weigh the same against the prevailing circumstances and protocols required in this case. In case of two experts' witnesses giving conflicting opinions in the same case, the one which supports the direct evidence should be accepted. All the evidence by the different expert witnesses agree that it was critical that the 1st appellant's life be saved and the issue of RoP screening was not among the most critical in her treatment at that particular moment in time. When determining matters concerning the conduct of a member of a profession, it is his own colleagues of good repute and competency who are in the reasonable position to determine the matter. It should not be open to every person to make criticism of a medical personnel without such competency. The courts are equally deficient of required knowledge or competency to find medical person negligent except in the extreme cases of obvious and glaring acts of negligence. *See Dr Sandys Arthur v Ghana Medical & Dental Council [2012] 52 GMJ 109*

It is well established law that it is sufficient if the doctor or health worker exercises ordinary skill or an ordinary competent man exercising; that particular art…there may be one or more perfectly proper standards: and if he conforms with one of those standards then he is not negligent…..he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

Fair and reasonable standard of care and competence are required. Wrong diagnosis *per se* should therefore not result in a finding of negligence. The facts of each case should be the sole determinant whether a medical man or woman should be found negligent for wrong negligent diagnosis or not.

It is clear from the Council's analysis that there was no error in referring the appellants for eye check at discharge by the respondent's employees to amount to negligence and all the testimonies show that the 1st appellant was critically ill and her management was in the best interest to save her life at that moment instead of concentrating on a non-saving life issue due to the delicate nature in which she was at the Neonatal ICU . The council was right not to find any negligence on the part of the respondent's employees.

It is a matter of common knowledge that after happening of some unfortunate event, there is marked tendency to look for human factor to blame for an untoward event, a tendency which is closely linked with desire to punish. Things have gone wrong and, therefore somebody must be found to answer for it. A professional deserves total protection such that people who act professionally and in good faith should not be punished.

It is the bounden duty and obligation of the court and civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners at times also have to be saved from such class of complainants who use court proceedings as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensations or extortions.

Such malicious or baseless proceedings deserve to be discarded against medical practitioners. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and

competence and in the best interests of the patients. The interest and welfare of the patients have to be paramount for the medical professionals

The standard of care expected of doctors or medical profession is the content of industry guidelines, standard procedures and protocols. They do not impose civil liability as such, they provide evidence as to the position taken by a reasonable body of medical opinion. The evidence adduced during the proceedings at Medical Council by the different experts and professionals does not point to any negligence by the respondent's employees considering the circumstances prevailing at the moment after saving the life of the 1st appellant. This court would not accept fault finding after the fact to make a case for negligence. The court has to consider the entire circumstances of the case and foreign precedents (case law) or international standards and practice cannot be cited as being of any relevance or persuasion.

In the final result for the reasons stated herein above this appeal fails and the decision of decision of the Medical and Dental Practitioners Council is upheld.

Each party shall meet its costs.

It is so ordered.

## *Obiter dictum*

*The medical profession is regarded a noble calling and the medical practitioners are accorded a special position of respect in the social hierarchy. Doctors are regarded as the incarnation of God on earth, who perform the divinely ordained duty of ridding man of pain and agony. The clan of doctors is of extreme importance for the survival of the human race, and a healthy relationship between the doctor and the patient is of utmost importance in a civilized society. However, with time, this noble vacation has undergone a phase of moral decadence and professional ethics which used to be the hallmark of the calling has been swept by the unforgiving winds of commercialization. Professional misconduct by doctors is now rife and the erudite skill and unflinching attention expected of a doctor has fallen prey to the maddening craze for the fast buck, the inevitable result of this development being the increasing instances of cases of negligence involving medical professionals.*

*This lapse endangers the security of human life, as the unwitting patients, who are placed in unequal position, fall prey without having any opportunity to protect themselves. This is a matter of great worry for the legislators and courts as they are faced with the uphill task of protecting the interests of patients without jeopardizing the delicate doctor-patient relationship. While making such laws and applying the laws, the legislators and courts have to adopt a cautious approach which is aimed at upholding the mutual confidence between the doctors and the patients so that the profession may function effectively.*

*SSEKAANA MUSA JUDGE 06th September 2024*