Court awards teacher damages

Precedence 
Court relied on a similar case decided 10 years earlier in which a patient was awarded the equivalent of Shs75m to award the damages. The teacher was also awarded costs of the law suit.

The Attorney General’s argument was that for a patient to have a complication from a surgical operation was not synonymous with negligence.

Even in the best of hands patients still develop complications.

And to the Attorney General the patient was offered the best care available in a government facility, notwithstanding the limitations in these facilities.

The Attorney General also told court that the teacher had consented to the surgery.

Ruling 
Court, however, ruled that the specific risk of a fistula had not been explained to the patient, a risk the patient’s consent did not envisage. Court stated, in no uncertain terms, that the patient had not consent to medical negligence. The Attorney General made a fundamental error in the case; the medical notes in respect of the surgery were not availed to court. The identity and, therefore, the qualifications and experience of the doctor who carried out the surgical operation were not known to court. In deciding whether or not there is medical negligence, courts look at what a doctor with similar qualifications and experience would have done in similar circumstances.

A professor of Obstetrics and Gynaecology, who testified as an expert witness for the teacher, told court how an operation to remove a uterus is carried out and how the records should be written and kept.

The fact that the notes detailing the surgery were not brought to court smacked of utter most incompetence, if not outright dishonesty. 

Hospital culpable 
It was evident the hospital had something to hide when the surgeon and the theatre staff, who were present during the surgery, were not called to testify in the case.

Court had no way of knowing what really happened during the surgery and if the appropriate procedure was followed when the patient’s uterus was removed.

Court also had no way of knowing if appropriate steps were taken to prevent the injury from happening or what steps were taken even after injury to the patient was occasioned.

It was difficult for court to decide if the surgeon had acted in the best interest of the patient before, during and after the operation.

It was not disputed that the teacher underwent the surgical operation to remove her uterus on September 15, 2012.

That she developed a fistula 10 days after her discharge from hospital was not in doubt and this fact was not contested.

It was not also contested that a catheter was inserted into her bladder to drain it and that she had to wear diapers and sanitary pads to reduce the leakage of the urine.

The teacher testified to these facts in her evidence before court. Her evidence was corroborated by her sister who acted as her caregiver in hospital.

Teacher testifies 
The teacher also testified that her situation resulted in her stress levels rising to a point where high blood pressure drugs had to be administered to her. She had never been diagnosed with high blood pressure before.

She testified that she never received any counselling after she developed complications of the surgery.

A psychologist who evaluated the teacher told court that the teacher showed signs of a low or depressive mood and that she was withdrawn.

He testified that the teacher suffered public ridicule and suffered loss of dignity due to urinal incontinence. The court could not agree more.

Negligent operation 
Court had no hesitation in concluding that the teacher’s suffering was a result of the botched and negligent operation that resulted in the cutting of her ureter and bladder.

All these caused her to suffer emotional trauma and psychological stress. She was diagnosed with depression and mood swings as a result.

To court the patient’s loss of amenities spoke for themselves.

She became a recluse. She had a catheter inserted into her, which restricted her social interaction.

She also suffered urinal incontinence. She had to use diapers for a considerable period of time.

Consequences 
She could not perform her teaching duties with ease. She exuded urinal stench. She did not enjoy sexual intimacy with her husband as a result of the stench and persistent leakage.

There are five cardinal ingredients that must be proved in a case of medical negligence. It must be proved that the healthcare provider owed the patient a duty of care.

In this particular case, this was not in question. It must also be proved that there was a breach of this duty of care.

This was contested by the Attorney General. The onus was on the patient to prove this particular ingredient and further prove that the breach of the duty of care resulted into harm.

That the patient sustained a fistula as a direct complication of the surgery could not be denied. The patient had to prove that the injury sustained was not a rare one or one too remote to have been foreseen.

This was proved by the experts who were called to guide court. The opinion or evidence of independent medical experts is cardinal to proving medical negligence in a court of law.

And the last aspect to be proved was that a monetary value could be attached to the inconvenience that the patient suffered.

The patient had asked court for general damages for reason of the mental and emotional anguish she suffered as well as the pain and suffering she underwent when her mode of living was drastically affected by the fistula.

Court observed that the assessment of general damages is an arduous and complex exercise.

To court the amount of more than Shs100m was adequate to assuage the pain and suffering and trauma and loss of dignity that the teacher endured.

   To be continued   

She exuded urinal stench 

Dr Sylvester Onzivua
Medicine,  Law & You