Hospital, doctor ordered to pay woman Sh1.6m for medical negligence

The Aga Khan Hospital Mombasa and a doctor have been ordered to pay a woman a total of Sh1.627 million for medical negligence.

Mombasa principal magistrate Lewis Gatheru awarded Ms Rachael Wangari Sh1.6 as general damages for pain and suffering and Sh27,960 as special damages.

The judgement was entered against the hospital and Dr Hassan Ali Hussein jointly and severally.

Ms Wangari had told the court that she went for a medical procedure on June 22, 2024, for removal of a staple pin she believed she had swallowed and was stuck along the oesophagus.

According to the plaintiff (Ms Wangari), she developed severe complications necessitating several medical interventions which she attributed on the part of the defendants (hospital and doctor).

In his decision, the magistrate noted that a consent form which it was claimed was signed by Ms Wangari and her husband was not brought to court yet it was a document belonging to the defendant.

“They chose to keep it from exposure which to a rationale reasonable mind, it can be deduced it may not be supportive of the narrative by defence witness one (doctor), this to me is a significant red flag, on this the balance tilts in favour of the plaintiff,” ruled Mr Gatheru.

The court also noted that perforation of the oesophagus was not present prior to the procedure on the plaintiff and that the defendant speculates that the sharp object may have moved down and caused perforation.

It also noted that the defendants are silent on where the object is since it was not found in the end.

“As the plaintiff witness one explains, there is no likelihood that the staple pin caused the perforation or injury to the lungs. The more likely explanation is that the procedure led to the perforation,” ruled the court.

The court ruled that it was not in dispute that the patient was not having any other symptoms least associated with asthma hence the medical complications that followed cannot be attributed to anything else other than the perforation that occurred.

Mr Gatheru ruled that the defendant failed to show the extent to which the patient had been made aware of the risks (associated with the procedures) and what she contested to.

According to the court, the decisive moment would have been locating the foreign object outside the gut and presenting proof that the patient was aware of inherent risks and chose to go through it.

“I find the first defendant (doctor) negligent in a manner he carried out his duty,” ruled Mr Gatheru.

The court ruled that the doctor having been under the auspices of the second defendant (hospital), the hospital must bear vicarious liability over his actions.

Through lawyer Tom Ambwere, the plaintiff argued that the doctor was negligent in that without establishing the nature, size and scope of what he termed as a ‘foreign body’ he went on to do a procedure that was not only risky but negligently harmed her.

The plaintiff told the court that she sought intervention at the hospital and was attended by Dr Hussein.

She said an X-ray was done with a recommendation that she undergoes a simple procedure to remove a foreign object which was on the third upper oesophagus.

Ms Wangari told the court that after the procedure was done, she experienced severe chest pains which led to further examination as she was having breathing problems.

According to Ms Wangari, during the procedure it was discovered that one third of the oesophagus was nicked which caused food and food products to leak into the chest cavity hence the chest pains.

The plaintiff told the court that despite medical procedures done on her she remained in pain.

She claimed that despite the defendant’s medical negligence, they still billed her while correcting the mistakes.

The plaintiff also told the court that on August 6, 2024, she had to undergo another treatment where she was admitted at a hospital in Nairobi for an operation and was discharged on August 10.

She claimed that the injuries sustained prolonged suffering and incurred additional medical costs with diminished quality of life.

On his part, Dr Hussein told the court that the plaintiff attended the hospital and complained that she had swallowed a pin and that an X ray was done which showed she had a foreign body on the upper part of the food pipe and that as a standard procedure esophagoscopy was done.

He added that being an emergency, the procedure was explained to the plaintiff and her husband but at no one point was it described as a simple procedure.

The doctor further told the court that Ms Wangari was put on general anaesthesia and taken to the theatre where the procedure was undertaken but no foreign body was found and that she was taken back to the ward for a complete CT scan.

He said on the morning of June 23, the plaintiff had difficulty in breathing hence a CT scan done at the hospital found her left lung had collapsed with accumulation of fluid.

According to the doctor, it was possible that the plaintiff swallowed the staple pin which could have gradually descended the food pipe and being a sharp object perforated the lower food pipe causing the presence of air and fluid in the lungs.

The court heard that the plaintiff was take through corrective procedures to drain the fluids and treatment until July 5 when she was discharged to continue as an outpatient.

The doctor also said that there was no surgical error at all.

He maintained that there was no error or his part and that the sharp object was what may have led to the perforation and that the object had not been found.

The defendants argued that the plaintiff failed to show that there was such a breach of duty or failure to exercise skill and that she failed to prove any negligence on their (defendants) part.