Whiteside v. Jasman Civ. Case 4-M-70; 13/1/71; Onyiuke J.

 

Whiteside v. Jasman Civ. Case 4-M-70; 13/1/71; Onyiuke J.

This claim was for Shs. 110, 000/- being special and general damages for negligence. The plaintiff approached the defendant in his professional capacity and complained that she had missed her menstrual period for two months. Defendant examined her externally and internally on three successive occasions between 15^th January 1969 and 10^th February 1969 and stated to plaintiff that she was not pregnant. He recommended a D and C. operation to bring her to her normal menstruation cycle. The operation was done but it resulted into a lot of pain and bleeding to plaintiff which persisted despite defendant’s assurance that the pain would go away. When plaintiff consulted another doctor, it was found that she was about 12 weeks pregnant. The Regional Medical Officer Mwanza also confirmed this after a clinical and pathological test. Defendant then suggested that the pregnancy be terminated as there was a risk of giving birth to a very deformed baby. A second D and C operation was performed to terminate the pregnancy and this again resulted in pain and bleeding. Plaintiff consulted various doctors in Mwanza and Dar es Salaam who testified as to her suffering and bleeding and how this might be due to an improper D and C operation or an incomplete termination of pregnancy. At no time did Defendant before carrying out the operations care to have a “urine for pregnancy test”. In his defence, defendant denied the negligence and stated that he did the first D and C. operation because plaintiff told him that she had had one sometime in her life which had solved the subject of her complaints and insisted on having another one.

            Held: (1) “I accept plaintiff’s evidence and find as a fact that the plaintiff’s complaint was amenorrhea and nausea.” (2) “The evidence in this case shows that while the defendant was not able to detect pregnancy in the plaintiff on the 13^th February 1969, Dr. Desouza had no difficulty in detecting one on the 26^th February and a nurse on the 1^st plaintiff as per him note exhibit D4 – three months amenorrhea, cervix closed and firm should at least have deepened his suspicion of pregnancy instead of negativing it. The second method is by biological test. The commonest method is urine for pregnancy test. It is vertually fool proof and can detect pregnancy as early as 7 to 14 days after a missed period. From the evidence it seems to be the most natural thing with doctors, that is to say, the most common practice to carry out this test in cases of suspected pregnancy. Dr. De souza did it. Dr. Placci did it in November/December, 1969 and Dr. Nayar did it on 1^st March 1969. The defendant did not do it. Why?” he stated that he did not do so because any urine can be produced by a patient and I cannot be sure that the specimen produced to the laboratory actually belongs to the patient and because I will receive the results after about a month from dare s Salaam. I do not have time to take specimen from each and every patient. The first part of the defendant’s answer is unconvincing and verges on the ridiculous. The second part is equally unsatisfactory. It will be disastrous to society if a doctor fails to take the normal precautions or to follow the normal medical practice or a universally accepted procedure on the ground that he is a busy man. What is worth doing at all is worth doing well. This was not an emergency case where a matter of life and death was involved and the doctor was racing against time. The plaintiff could afford to wait and the defendant had all the time he needed.” (3) A person by holding himself out to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Secondly, when consulted by a patient he owes the patient:- (i) a duty to take care in deciding whether to under take the case; (ii) a duty to take care in deciding what treatment to give; (iii) a duty of care in his administration of that treatment. A breach of any of these duties can ground on action for negligence by the patient. (See Volume 26 Page 17 Halsbury’s Laws of England 3^rd Edition). (Citing Neville v. Copper [1958] EA 594 and Mahon v. Osborne [1939] 1 All E. R. 535). (4) “In determining whether the duty of are has been discharged b a doctor regard must be had to the fact whether he observed the universally accepted procedures. With the foregoing as the back-ground, I will then proceed to consider the circumstances of this particular case.” (5) “It is common ground that if the D & C was properly done it would have terminated the pregnancy. The D & C operation by the defendant did not terminate the plaintiff’s pregnancy. The defendant called this state of affairs as incomplete D & C. whatever the defendant may choose to call it the result was the frequent bleeding and pains which the plaintiff testified she experienced and the mental anxiety to which she was subject. (6) “Whatever may be the reason for plaintiff’s present posture in court I am satisfied that she consented to the termination of the pregnancy because she believed on reasonable grounds that the D & C although of 13^th February, 1969 had adversely affected the foetus and she was not in a mental state to face the prospect of having a physically abnormal child.” (7) The plaintiff’s condition …… (Pelvic inflammation) ‘Was consistent with a previous history of improper D &C although it could be due to other causes. Such other causes may be due to veneral diseases or the introduction of STAPPLOCUCUS STREPTOCUCUS into the uterus arising from bad

hygiene. It is not the defendant’s case that the plaintiff’s condition was due to these other causes ………………. I find as a fact that the D & C operation 17^th March, 1969 was performed negligently and that that accounts for bleeding and pains which the plaintiff subsequently experienced.” (8) The effect of the negligence on plaintiff’s capacity to conceive was negligible. (9) Plaintiff suffered intense pain as a result of defendant’s negligence in carrying out the D and C operations plus the inconvenience of irregular vaginal bleeding which at times caused ANXIETY NEUROSIS. (10) Shs. 12,000/- awarded as general damages plus a total of Shs. 850/- special damages.