On March, 4, the Civil Division of the High Court in Kampala delivered a judgment in a case in which a one Irene sued a health service provider, Marie Stopes, and one of their nurses, accusing them of medical negligence. The case was based on events that occurred on September 22, 2017, when Irene reportedly sought family planning services from Marie Stopes but claimed the nurse who attended to her negligently inserted an Intra-Uterine Device (IUD) into her and this caused her to suffer injury and pain.
Court defined negligence as failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is doing what a reasonable and prudent person would not do under the particular circumstances or the failure to do what such a person would do under the circumstances. According to court, negligence may also mean any conduct that falls below the legal standard established to protect others against unreasonable harm.
Court looked at the circumstances of negligence in respect to skilled workers and noted that if a person holds himself as possessing a special skill and knowledge and he is consulted as possessing such skill and knowledge by a patient, he owes the duty to the patient to use due caution in undertaking treatment.
If he accepts the responsibility and undertakes treatment and the patient submits to his direction and treatment, accordingly he owes the duty to the patient and to use diligence, care, knowledge and caution in administering the treatment. A doctor can be held guilty of medical negligence when he falls short of the standard of reasonable medical care and not because, in a matter of opinion, he made an error of judgment. For negligence to arise, there must have been a breach of duty and the breach of duty must have been the direct or proximate cause of the loss, injury or damage. By proximate is meant a cause which is a natural and continuous chain, unbroken by any intervening event, produces injury and without which injury would not have occurred.
In the case of negligence, it must be shown that the breach of duty is equal to the level of a reasonable and competent health worker. The onus is on a complainant to prove that there was a usual and normal practice, which the health care provider did not follow and that the health care provider, instead, adopted a practice that no professional or ordinarily skilled would have taken. This is the proof of deviation that courts need in a case of medical negligence. Court noted that in this particular case when Irene went to a health facility that belonged to Marie Stopes for the insertion of an IUD, the IUD was wrongly inserted by the nurse who attended to her.
That the IUD was wrongly inserted was confirmed by various medical reports that were tendered in court which showed that the IUD was not where it was supposed to be. To court, this confirmed the nurse deviated from the normal practice in that instead of inserting the IUD in the uterus, which was the right place, she inserted it in the abdomen when she perforated Irene’s uterus. Court, therefore, ruled that the nurse was negligent in her work as a medical personnel.
Court also addressed the issue of whether Irene suffered as a result of the negligence of the nurse. Evidence on record showed that Irene suffered a lot of pain during the insertion of the IUD.
The client, in her evidence, informed court that she requested the nurse to discontinue the procedure but the nurse disregarded her request, advising that it was normal for such pain and bleeding to occur during the insertion of the IUD and that the pain and bleeding would subside shortly. This, unfortunately, did not happen. Irene had to later on, due to severe pain, look for medical care from a number of hospitals, including a hospital in Germany. Medical reports from all these hospitals were tendered in court as exhibits. Court, therefore, ruled that Irene, indeed, suffered as a result of the negligence of the nurse but ruled that Marie Stopes was vicariously liable for the actions of the nurse, who was lawfully on duty, being duly employed by the organisation.
Irene prayed for special damages for expenses incurred during medical treatment and general damages for pain and inconvenience, trauma, mental anguish, shock and suffering. The object of the award of damages is to give the complainant compensation for the damage, loss or injury she suffered. General damages are awarded to compensate an aggrieved fairly for the inconvenience accrued as a result of the suffering caused to her. It is the duty of the complainant to ask for and prove that there were damages, losses or injuries suffered as a result of the actions or omissions of the accused person. Irene pleaded and gave evidence that she suffered pain, mental anguish and inconvenience right from the time the IUD was inserted into her body.
She asked court to award her general damages of Shs1 billion. Court, however, found the sum on the higher side and awarded her Shs10 million. Special damages must be specifically asked for and strictly proved but that strictly proving such damages does not mean that proof must always be documentary evidence.
Special damages can also be proved by direct evidence, for example by evidence of a person who received or paid such monies or testimonies of experts conversant with the matter. Irene presented copies of receipts of the expenses she incurred due to the said negligence.
These included hospital bills, air tickets and accommodation. These expenses totalled to over Shs13 million and over pound 7,000 (Shs29m). Court awarded her these costs as special damages. Court also ruled that it found no reason to deny Irene costs in this case. The law provides that the award of costs is at the discretion of court and costs shall follow the event unless for good reasons, court directs otherwise. The phrase ‘costs follow the event’ means an award of costs will generally flow with the result of litigation, the successful party being entitled to an order for costs against the unsuccessful party. In other words, the general rule is that a successful party will be awarded costs.
Court, however, declined to award Irene the interest on the monies she had sought. The rationale for interest is that the guilty party has taken and used the complainant’s money and benefitted from it. Consequently the guilty party ought to compensate the complainant for the benefit. The award of interest is discretionary and the basis of an award of interest is that the guilty party has kept the complainant out of his money and the guilty party has held the use of it to himself, so he ought to compensate the complainant accordingly. In the instant case it had not been shown that Marie Stopes kept Irene out of the use of her money or that the service provider used Irene’s money for its own benefit.