THEODELINA ALPHAXAD A MINOR S/T NEXT FRIEND v THE MEDICAL OFFICER I/C, NKINGA HOSPITAL 1992 TLR 235 (HC)

THEODELINA ALPHAXAD A MINOR S/T NEXT FRIEND v THE MEDICAL OFFICER I/C, NKINGA HOSPITAL 1992 TLR 235 (HC)

Court High Court of Tanzania - Tabora

Judge Katiti J

20 August, 1992 B

Flynote

Tort - Negligence - Professional - Liability of medical staff - Vicarious liability of

hospital - Standard of care and skill.

-Headnote

In an action for damages for negligence arising from professional negligence of a

doctor in attending the plaintiff, causing the amputation of her arm, the trial judge

found that C the defendant was negligent.

Held: (i) If a person is admitted as a patient by a hospital, and is, in medical treatment

occasioned injury through the negligence of some member of staff, it is unnecessary

D for him to pick upon any identifiable particular employee for suing purposes. The

said hospital is vicariously liable;

(ii) where the doctor, consultant, etc. are selected and employed by the patient

himself, the question of vicarious liability by the hospital does not arise, and such E

liability does not attach to the hospital;

(iii) where in a hospital, the doctor engaged, has seen him and the patient,

established the doctor and patient relationship, by accepting him/her for treatment

purposes, the said doctor has a duty of care, and has to exercise the same with skill F

attendant to modern medicine and surgery, under permitting circumstances. Such

general duty is not subject to dissection into a number of component parts, to which

different duty of care apply, or combination of both, i.e. that the investigation and, or

G treatment of the plaintiff was in accordance with current standards of medical

practice, or, that, the plaintiff's injuries were not caused by any negligence on behalf

of the defendants.

Case Information

Judgment for plaintiff. H

[zJDz]Judgment

Katiti, J.: One Alphaxad Mirobo, the next friend of Theodeolina Alpha, a minor then

aged six years, filed this action on her behalf in this Court, against the Medical Officer

In Charge of Nkinga Hospital, claiming Shs.5,000,000/=, as damages with interests,

and I costs of the suit, and such further reliefs as may be

1992 TLR p236

KATITI J

commensurate to the occasion, for the loss of the left fore-arm, that was amputated,

A claimedly and allegedly, because of faulty and negligent treatment of the same, by

the defendant. The plaintiff did not give evidence.

With the defendant demurring that, it was the plaintiff's father, her next friend, that

was B negligent, in not sending back the child, to hospital, I plainly drew the issues,

as follows:

(1) Whether Nkinga hospital was negligent in the medical treatment of

Theodelina Alpha, as to lead to limb amputation. C

(2) What reliefs, if any, are the parties entitled to?

What happened, to the culmination of the suit, is yearning indeed. The facts, as they

themselves understandably and audibly speak, are straight-forward, and D

uncomplicated, and they are as follows. P.W.1 Alphaxad Mirobo, a Primary School

teacher, as at the material time, is the father of Theodelina Alphaxad, who at the

material time, was and still is a minor, but then aged six years. Both were residents of

Nguyiti village, in Igunga District, Tabora Region. And Nkinga Hospital well known

in this E area, is a private Mission Hospital, being run by the Pentecost Church of

Tanzania, situated in Igunga District, Tabora Region. At the material time, a certain

Dr. Martin was in charge of the same hospital, only to be succeeded by D.W.1 Dr.

Lars - GOHAN LIND GREEN as from 6th July, 1991. And it is defying controversy,

that this Hospital F among others, had then employed P.W.2 Dr. Kirungu a surgeon,

PW.3 Mrs. Juliana Lusinga then a student nurse, and P.W.4 Andrew Athanazi, then a

male nurse among other, to mention only a few. Thus, that P.W.2 Dr. Kirunga a

Surgeon, P.W.3 Mrs. Juliana then a student nurse, were the employees, of Nkinga

Hospital, is as true as the G birth of Christ - and hence the contractual employer and

employees relationship between them - i.e. Nkinga Hospital, and the said employees,

respectively.

Undefiably, and there is no controversy, on the 21/1/1991, the minor Theodelina H

Alphaxad, was on her playing errands, with her agemates, when she fell and hurt her

arm. The dispensary Sungwizi, to which she was rushed by her father, referred her

case management to Nkinga Hospital. And that, on the very 21/1/1991, she was

received by Nkinga Hospital, is conceded by no less, an authoritative person, than Dr.

Kirunga, I who concedes his failure to attend her, on that very day for reasons, - (1)

that it was an X-ray

1992 TLR p237

KATITI J

day, which I humbly think the minor wanted immediately, in the first place, and, -

(2) A - that the minor had eaten, and six hours had not elapsed, as administering

anaesthesia at that time, or before the lapse of that period, would have attracted

vomiting, with attendant negative consequences, upon the respiration system. And of

course as advised, P.W.1, did take the child home, not-withstanding, the condition

she was in. B

The minor, plaintiff, it is defying challenge, was sent again to the very Hospital, on

the 22/1/1991, when the X-ray Exhibit "A", revealed the fractures of both the ULNA

and RADIUS -the two forearm bones, the said Minor was anaesthetized, and a P.O.P.

C installed, or a plaster casted, against the affected area, by no less a Surgeon than Dr.

Kirunga, who according to P.W.1, discharged them despite her feeling of pains, with

instruction to go home and report back, after a week. It is again too true, to be

dismissed, that on 25/1/1991, the minor while suffering from pain generating tears, D

was sent back to the very Hospital, but she was not treated on this day, and on the

26/1/1991, upon the P.O.P. being removed, the hand was found to have blackened,

the circulation of blood in the affected area negative, and as it could not be improved,

and consequently, the arm, was amputed on the 7/2/1991. And because of the above

E undefied facts, the plaintiff is avering that the Hospital, "was negligent in their

actions, which were not in accordance with good medical practice, during the whole

course of treatment" i.e. delay of treatment, and manner of treatment.

While the plaintiff avers, and apportioned negligence to the hospital in their mode of

F treatment, defendant Hospital demurred, and tried to throw the suit ball, back into

the yard of the plaintiff D.W.1 Lars - Gohan Hind Green, the medical officer in

charge of the very Hospital since 6th July 1991 may as a person, be forgiven

sympathetically, as absent as he had been, he can only theorise, about generally

accepted medical G Standards, generally exercisable, and not testify as to the

standards, that were actually applied, in the management of this case. But, it is very

true that D.W.2, Dr. Kirunga was the one who handled, the minor's case. While Dr.

Kirunga, concedes to have not treated the minor on the 21.1.1991, when he saw her,

and concedes not to have H treated the minor on the 25.1.1991, - till 26.1.1991, the

discoloration of skin, and circulation of blood impediment, had set in, and hence the

amputation, that was consumated. She was cared for, on 26.1.1991, despite her arrival

on 25.1.1991, upon it being observed as shown, by Outpatient Card Exhibit "P.B" that:

I

1992 TLR p238

KATITI J

A That fingers now is black, like gangrenous process probably due to fracture

complications, or P.O.P. compressed the blood supply - remove the P.O.P.

In para (7) and (8) of the Written Statement of Defence, it is being averred, that, the

B real mistake was that, she did not "return immediately to Hospital, when getting

pain, swelling, and miscolouration of hard and arm. And that, information was given

by the attending Surgeon Dr. Sabri Kirunga, at the first attendance on the 22.1.1991,

of possible complication after applying, the P.O.P. and, absolute need to come back C

immediately in case of any complications". Indeed D.W.2 Dr. Subri Kirunga testified

this:

"I told the father before the patient, is anaesthetized that after the operation, if

the patient shows any swelling, or pains, she has to be brought back immediately." D

Indeed, it is a fact as conceded by the defence, that the minor in the very afternoon of

the very, 22.1.1992, was already complaining of pains, and D.W.2 Dr. Kirunga

reacted, as follows to the same:

E I looked at the arm, and did not note any swelling. I was hesitant to make any

adjustment. But when the child complained of pains, I called for instrument to cut the

P.O.P., I cut the P.O.P. to release, the thumb, where the pains were being left for two

inches. I asked the F child, if she still felt pains, and upon getting a negative answer,

I left them to go.

Crowning it all, the case is that, while the plaintiff claims that the totality, or the

accumulative effect of the spectrum of treatment, assumed a negligent culmination,

and G hence the detested amputation, defendants washing their hands off the

episode maintained, that the plaintiff's father was to blame, in not bringing the child

back to hospital upon the complication, that had been communicated to them, setting

in.

Whether the hospital was negligent, is the question that wants an answer. The

plaintiff H claims damages, against the hospital, saying that even Hospitals, attract

liability, where there has been professional negligence, in the treatment of the

patient. Whether, or not, a hospital is liable for the professional negligence of its staff,

is well established, and in the case of: Cassidy v Ministry of Health I

1992 TLR p239

KATITI J

[1951] 2 K.B. 343, and at page 359, Lord Justice Denning's view, on the same is as A

follows:

"If a man goes to a doctor because he is ill, no one doubts that the doctor, must

exercise reasonable care and skill, in his treatment, of him, and is so, whether the

doctor is paid B for his service, or not. But if the doctor is unable to treat the man

himself, and send him to hospital, are not the hospital authorities then, under a duty

of care of their treatment of him? I think they are. Clearly if he is a paying patient,

paying them directly for their treatment of him, they must take reasonable care of

him, and why should it make any C difference, if he does not pay them directly, but

only indirectly through the rates which he pays to the local authority, or Insurance

contributions, which he makes in order to make the treatment? I see no difference at

all. Even if he is so poor that he can pay nothing, D and the hospital treats him out of

charity, still the hospital, are under a duty to take reasonable care of him, just as the

doctor is, who treats him without asking a fee.

E In my opinion, authorities, Government boards, or other corporations, are in

law under the self-same duty, as the humblest doctor, whenever they accept a patient

for treatment, they must use reasonable care, and skill to cure him of his ailment. The

hospitals cannot of course do it themselves, they have no ears to listen, through the

stethoscope, and no F hands to hold the Surgeon's knife. They must do it, by the staff

which they employ; and if their staff are negligent in giving the treatment, they are

just as liable, for that negligence, as is anyone else, who employs others, to do his

duties for him. What possible difference in law, I ask, can there be between hospital

authorities, who accept a patient for G treatment, and sailing, of shipping

authorities, who accept passengers for carriage? None whatever. Once they undertake

the task they come under a duty to use care, in the doing of it, and that is so, whether

they do it, for reward or not. ..." H

Another similar persuasive lesson, on the matter could be gathered from the case of

Roe v Ministry of Health [1954] 2 W.L.R. 915, Lord Denning, was, as was usual,

professional and expertly at it again. He held thus: I

1992 TLR p240

KATITI J

A The Hospital authorities, are responsible for the whole of their staff, not only

for nurses and doctors, but also for the anaethetists and the Surgeon. It does not

matter, whether they are permanent, or temporary, resident or visiting, wholetime,

or part time. The Hospital authorities are responsible for all of them. The reason, is

because even if they B are not servants, they are agents of the hospital to give

treatment. The only exception is the case of consultants, or anaethetists selected, and

employed by the patient himself.....

I am, from the above excerpts given to think that Cassidy's, and Roe cases above, C

support the good and objective propositions, - One - (1) - that if a person is admitted

as a patient by a hospital, and is, in medical treatment occasioned injury through the

negligence of some member of staff, it is unnecessary for him to pick upon any

identifiable particular employee for suing purposes, the said Hospital is vicariously D

liable - two - (2) - the law seems to apply the principle of responde - at Superior, in

the case of a hospital, just as it does, in the case, of master and servant, in any other

sphere of activity; professional, industrial or otherwise. and three - (3) -, where the

doctor, E consultants etc. are selected and employed by the patient himself, the

question of vicarious liability by the hospital does not arise, and such liability does not

attach to the hospital, that did not employ them.

Thus, we may as well say, authoritatively, that hospitals are responsible for all those,

F in whose charge the patients are, or patient is. In other words, where in a hospital,

the doctor engaged, has between him and the patient, established the doctor and

patient relationship, by accepting him/her, for treatment purposes, the said doctor has

a duty of care, and has to exercise the same, with skill attendant to modern medicine

and G surgery, under permitting circumstances. Such general duty, I better add, is

not subject to dissection into a number of a component parts, to which different duty

of care, apply, or combination of both, i.e. that the investigation and or treatment of

the plaintiff was in accordance with current standards of medical practice, or that, the

plaintiffs injuries H were not caused by any negligence on behalf of the defendants.

In this case, the defendants are adopting, both approaches.

Dutifully digging into the evidence, as adduced will give nothing, but the truth on the

matter, whether there was negligence on the part of the hospital. It is a finding of fact

I that the minor was

1992 TLR p241

KATITI J

referred to the defendant hospital on 21.1.1991 with a hurt hand, and it is conceded

A by Dr. Kirunga, that the minor was not treated on this day. But Exhibit "P.A.",

shows, what I assume was symptomatic diagnosis:- "dislocation of left arm - Like

Green stick fracture - X-ray, kesho" dated 21.1.1990. It is therefore ....., and perhaps

good sense as well, that where the doctor is himself under a duty of care, he has to

apply such B care, throughout, right from time, he has received the patient, knowing

as we should, that the body, does not function, as a stop-watch, - operate as and when

the doctor wants.

The reasons that Dr. Kirunga gave, for not treating the minor on 21.1.1991, was that it

was an X-ray day, and that the said minor had eaten. Such, in my humble mind being

C the reason for sending the patient back home, after receiving her, is flabbergasting

and unacceptable, for if it was an X-ray day, then X-ray examination was the most

needed, at that material time, to determine the extent of the harm, and if I have to

surmise, I D cannot imagine, that there were no emergency facilities, either. The

reason for not treating the minor on 21.1.1991, is given by Dr. Kirunga, thus:

On 21.1.1991 it would be impossible, as it was X-ray day, and second the child

had eaten, and normally six hours had to elapse after eating, before anaesthesia can be

E administered, to avoid committing respiring vomit resulting in ugly consequences.

With respect, if X-ray had not been taken, the extent of harm was unknown, and as F

such, the anaesthesia administration, could not be contemplated, in the first place. I

thought, in my humble unprofessional view, that it was the X-ray examination,

which would have led to the conclusion, whether or not anaesthesia, should be

administered. But it was an X-ray day, and why the minor was not X-rayed, we need

revelation by G divine power. Further, the said learned doctor, does not seem to

have tried even a small inquiry, to find out as to how many more hours, had to pass,

for the child to qualify for the anaesthesia administration, as admitting the child to

await the lapse of such hours, would have made a lot of difference, than sending her

to home village altogether. And H to expect proper management of such hurt

condition, whose extent was not even known to a doctor was to expect too much.

With a lot of difference, but with respect, this way and manner of dealing with a

patient, hardly accords with the exercise of reasonable skill I and care, in the

treatment of the patient. For, certainly sending a known patient

1992 TLR p242

KATITI J

back home, in villages where facilities are known to be wanting, means late diagnosis,

A primary treatment delayed, as of course in the meantime, no therapy has been

given. The consequences of the same, can be extremely serious, as irreversible

changes can take place, in the body, or affected area, which actually in my view, took

place. The B hand deterioration process, had no stop watch system i.e. stop when the

child is sent home, or otherwise unattended, but resume the process, when the doctor

is around, -but the purpose of going to hospital, is to have the same arrested

immediately.

If it may be recapitulated, further and I think, it should be, the minor was dressed in,

C P.O.P. on 22.1.1991, after the X-ray examination necessitated such a course of

action, and it was not long after, that the child felt pains - after such P.O.P.

installation, - and this is conceded by Dr. Kirunga thus:

D On the 22.1.1991, when the plaintiff came claiming the child was having

pains, I cut part of the P.O.P. After that the child said, she was not feeling pains any

more.

This first shows, that immediately, the P.O.P. was already demonstrating itself as .....,

E and the plaintiff dutifully reported, as earlier warned. While I may concede, that

the learned doctor did, the needful at that time, I must submit, that what he did was

cosmetic, in the circumstances. for, in my modest view, such was the danger signal,

and reasonable skill and care, would have demanded circumspection, by monitoring

the F progress, instead of discharging her, to the village. But the learned doctor

knew the potential dangers attendant to P.O.P., for in that direction, Dr. Kirunga

said:

The P.O.P., is know for impairing blood circulation. G

I am heartily thankful to him, for this disclosure. If I get the doctor right, he means

that the P.O.P. may become tight, causing increasing severe pains, loss of sensation,

impairing blood circulation, leading to gangrene and hence loss of limb, or a

functionally useless limb, - an actuality that the minor experienced, and suffered. But

with even H greater respect to Dr. Kirunga, if the pains signal, were already setting

in, on the very day, and were rightly reported to him, I would have imagined, that

the very Surgeon, who should have professionally anticipated such complications,

should have made certain that, not only the cast, or P.O.P. is adequately adjusted, but

too, the patient is I carefully monitored, so that, if such warning signs

1992 TLR p243

KATITI J

persist, the P.O.P. is split. And it beats my imagination, why the minor, was without

A prejudice, not attended on her arrival on 25.1.1991, the doctor only to be rudely

awakened, to the fact, that the fingers were getting black on 26.1.1991. In my humble

view, failure to take adequate precautions, or act promptly, when the signs of trouble

appeared, and to let the patient to go hence, without thorough observations and to B

leave him unattended on the 25.1.1991, when she reported, is indefensible, and

hardly can it be said, that reasonable standard of care, and skill were applied.

The defendants averments that, it was for the plaintiff's father P.W.1 to take, the

minor immediately it felt pains, to hospital, has above been answered successfully in

my C view, that as pains set in almost immediately after the P.O.P. was installed, the

report, was accordingly made to Dr. Kirunga. It was for Dr. Kirunga, to monitor the

same, considering the potentialities of the harm - but he did not, with respect. But if I

may go further, may I peep, into what kind of information the doctor ought to give to

his D patient, and whether the information he gave to the minor's father P.W.1 was

commensurate with the occasion, and the harm being experienced. In the case of:

Sidaway v Board of Governors of Bethlem Royal Hospital, and Maudsley Hospital

4[1985] A.C. 871, [1985)]1 All. E.R. 643 H.L., it was held that, it was settled E

English Law, that when a doctor decides, what he ought, or ought not, to tell his

patient, about the risks of the proposed procedure, the lawfulness of what he does,

will be principally judged by tests founded, on the evidence of appropriate

contemporary standards of professional care. That is the doctor, will be found to have

been in F breach of his duty of care, to his patient, if he did not make enough

disclosures, and the patient satisfied the court, that, he has suffered harm, as a

consequence of the non-disclosure. And coming to think of our mother-land, I would

in trepidation, fear, to imagine, and worse refuse to hear, that, our circumstances

would demand less G modern and contemporary standards of professional care; in

the information, being given to the patient, as to his diagnosed ailment. In Sida-way

case, (supra), Lord Temele Man, in annunciating the type, and nature of information,

to the patient, by his doctor, said thus: H

At the end of the day, the doctor, bearing in mind the best interest of the

patient, and bearing in mind the patient rights, to information which will enable the

patient to make, a balanced judgment, must decide what information should be

couched. The Court will I award damages, against the doctor,

1992 TLR p244

KATITI J

A if the Court is satisfied, that the doctor blundered, and that the patient was

deprived of information which was necessary for purposes, I have outlined above.

I would draw an educative lesson from the above, that when the doctor and patient B

relationship exists, and the doctor decides to give his patient information about

his/her ailment, such information must be such as to enable the said patient to make a

balanced judgment, in respect of his/her ailments, or signs pertaining to the same, and

such information, must, circumstances permitting, be consistent with contemporary

standards, of professional medical care. C

In this case, without prejudice to the fact, that the minor did any way report about

the pains setting in, on that very day, and therefore, Dr. Kirunga should have been on

alert, the doctor knowing the child's problem only told P.W.1, that if the minor felt

pains, he should be sent to Hospital immediately. With respect, Dr. Kirunga did not

divulge D enough to P.W.1, and the minor, about the potential dangers involved,

including possible amputation of the affected arm. From the above, the patient having

not been attended, or otherwise, even after symptomatic diagnosis on 21.1.1991,

when she should have been and hence delayed treatment, on the 22.1.1991 with

P.O.P. E straight occasioning pains showing it had not professionally been installed,

and, the cast or P.O.P. being just cut in part instead of monitoring her, considering

the dangers known to D.W.1 Dr. Kirunga, her not being attended on 25.1.1991, when

she returned in treating pain, only to be attended on 26.1.1991, when the gangerous

process was F already setting in, and the non-disclosure of the real dangers potential

to the harm, suffered by the minor, before being discharged to their village, show that

by any stretch of imagination of the same, no reasonable care and skill, founded on

the appropriate contemporary standards of professional care, were applied to this

patient. I hold and G find in my view, that, the hospital was negligent in the

treatment of the patient, and it is so guilty, and I so find.

The general damages sought are, Shs. 5,000,000/=, interest at 7%, from filing of the

suit etc. for loss of the limb. The plaintiff did not even elaborate on how such figure

was H reached. But I can hardly blame him, as this is a difficult area, scaring even

old hands in this business. But as it was pointed out in the case of Admiralty

Commissioners v SS Susquehanna [1926] A.C. 665, and approved in West v Shepheld

[1964] A.C. 326, damages for tort, or even breach of contract, are such damages,

which so far as I money can compensate, will give the injured party, reparation for

the wrongful

1992 TLR p245

act. After all, as it was pointed out, in West v Shepheld [1964] A.C. 326 money A

cannot renew the physical frame of the limb etc., that, has been battered, and all the

court, can do is to award sums which must be regarded, as given reasonable

compensation. In this case, in my view, considering the current money value, I

hereby award Shs. 1,200,000/=. That I think meets the justice of the case, and such

amount B is so awarded, with costs and prayed interests.

Order accordingly.

1992 TLR p245

C