IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL DIVISION

CIVIL SUIT NO. 385 OF 2014

HELLEN KIMOSHO …………………………………………..PLAINTIFF

VERSES

1. Wakapita
2. CASE MEDICAL CENTER
3. MEDICAL&DENTAL PRACTIONERS COUNCIL…………….DEFENDANTS

BEFORE HON. LADY JUSTICE H. WOLAYO

JUDGMENT

Introduction

The plaintiff sued  the first defendant Wakupita and 2^nd defendant Case Medical Center,  in the tort of professional negligence. 

The  plaintiff prayed for  declarations  that

1. the 1^st defendantWakupita negligently dispensed medical advice to the plaintiff that subsequently put her life and thatof her unborn child at risk;
2. The 2^nd defendant(CMC) as an employer ofWakupita neglected to carry out its due diligence and employed Wakupita who is not licenced as a doctor or dermatologist and consequently put the plaintiff’s life at risk.

She also prayed for  punitive damages against both defendants.

The plaintiff further prayed  for an order directed at the 2^nd defendant to dismiss the 1^st defendant from its  employment on grounds of his negligent actions and lack of  a license to practice as a doctor and dermatologist.

She further prayed for general damages  for the inconvenience caused to the plaintiff as a result of the defendant’s negligent actions; any other relief and costs.

 The defendants filed written statements of defence denying liability.

Issues  framed for determination

Both counsel filed a joint scheduling memorandum in which the following issues were agreed for determination.

1. Whether the 1^st defendant negligently and unlawfully prescribed the drug methotrexate to the plaintiff.
2. Whether the 2^nd defendant is vicariously liable for the negligence of the 1^st defendant.
3. Whether the 2^nd defendantfailed in its professional duty owed to the public to ensure the verification of all its employees’ professional qualifications and competences.
4. Remedies .

Under section   101 of the Evidence Act, the legal burden of proof is on the one who desires judgment as to any legal right or liability dependent on the existence of facts which he or she must prove. In the instant case, it is the plaintiff who asserts the defendants were negligent and therefor liable for  alleged wrongs to her.

On the other hand both parties have the evidential burden to prove their respective   evidence on a balance of probabilities .

Both parties filed written submissions and authorities that I have carefully considered.   

Whether the 1^st defendant negligently and unlawfully prescribed the drug methotrexate to the plaintiff.

 The gist of the plaintiff’s case is that the  1^st defendant negligently and unlawfully prescribed methotrexate which led her to suffer a miscarriage at an early stage of pregnancy.

As rightly pointed out by both counsel in their submissions  the  tort  of negligence was first  recognised  in Donoghue v Stevenson where Lord Atkin  found  a manufacturer liable in negligence for injury suffered by a consumer who bought and consumed ginger ale only to find a snail at the bottom of the bottle. The test as articulated by Lord Atkin is  the duty to take care when relating with people who are so likely to be affected by the defendant’s acts or omissions and breach of which duty  gives rise to liability in negligence.

With respect to medical negligence,   the  duty to take care  is at the level of   following standard  practice and procedures and what a reasonable ordinary  medical professional would have done   and failure to do so may impute professional negligence .

In HCCS No. 29 of 2011 Hon. Benard Mulengani v AG and two others, Hon. Justice Kabito cited with approval an Indian case Post graduate Institute of Medical Education and Research, Chandigarh v Jaspal Sing and others Supreme Court of India Civil Appeal No. 7950 of 2002 where it was held that to establish liability of a health worker, it must be shown there was deviation from the normal practice, that the medical worker has not adopted the practice and that the course adopted by the health worker is one that no  professional of ordinary skill would have taken.

It is not in dispute that Wakupita  is registered   with the Allied Health Professionals council as demonstrated by Dexh.  dated 24^th November 2014 ,  as a medical clinical officer with an Advanced Diploma in Dermato-venereology  and a valid practicing licence for 2014.

In a further letter dated 6^th August 2015, the deputy registrar confirmed  Mr. Wakupita ‘covered general dermatology among other course units which allowed him to see patients with skin infections and prescribe medication with Uganda clinical guidelines and other specialised service providers. ‘

The two letters from the deputy registrar  Peter Naumutale of  Allied workers professionals council were submitted by  DW1 Issa  Bulafu the general manager of the 2^nd defendant (Cease Medical Centre ltd). 

 Under section 73 and 76 of the Evidence Act, the letters are  public documents  whose contents are taken at face value without any other proof.

The Allied Health Professionals  Council is established  by the  Allied Health Professionals Act cap 268   and therefore a public body.

Contrary to  practice, the 1^st defendant did not specify whether his first qualification is a degree or diploma and when and from where he obtained the same. The only specifics he gave were that he holds an Advanced Diploma in Dermato-venereology from the University of Dar es Salam. This is relevant because the Medical and Dental  practitioners council denied he is a dermatologist in their letter dated 27^th October 2014. Yet in PE 1 the medical insurance claim, he is described as a dermatologist,  someone with  specialist knowledge in that field.

In cross examination, the 1^st defendant describes himself as a specialist and that therefore it was not necessary for him to consult a specialist.  In the absence of evidence of his basic professional qualifications, it is impossible to  verify his claim to being a specialist .

The letters from  the deputy registrar  clearly demonstrate that the 1^st defendant was allowed to see patients with skin infections in consultation with Uganda clinical guidelines and specialised service providers.   The logical conclusion is that the 1^st defendant was not a specialist as he claims and therefore had an obligation to prescribe treatment in consultation with  specialists in the field.

As a professional , he owed a duty to comply with standard procedures prescribed in the Clinical Guidelines including consulting a specialist, taking samples  etc before administering treatment to the plaintiff.  By his own admission , he complied with neither of the procedures and only clinically examined the plaintiff and took down her history. According to the 1^st defendant, he was a specialist and therefore his own guide a position contradicted by the deputy registrar of the AHP council.

In the absence of proof  by the 1^st defendant he is a specialist  and  based on the confirmation by the deputy registrar the 1^st defendant is not a specialist, and the denial by the Medical and Dental practitioners council  the 1st defendant is a dermatologist,   I find on a balance of probabilities that the 1^st defendant  acted negligently when he did not follow the Uganda Clinical guidelines  and when he  prescribed methotrexate without consultation with a specialist.

  Dw 3 Dr. Kyeyune  examined the plaintiff on 6^th August 2014 and he confirmed she had missed her period  but that when she was prescribed methotrexate on 22^nd July by a dermatologist whom he did not name,  she wasn’t pregnant.  Upon  ascertaining by a lab test her pregnancy status, he discontinued the drug  because it is not prescribed to pregnant women.

Dr. Kyeyune’s testimony was she was about five weeks pregnant by 6.8.2014  but she was not pregnant when the 1^st defendant put her on methotrexate .

According to Dr. Kyeyune the plaintiff miscarried on 16^th August 2014  about ten days after he had  discontinued the impugned drug.

The question  here is whether the plaintiff  took contraceptives to prevent pregnancy after she was put on the drug.

Dr. Kambugu ‘s evidence is that he was informed by the 1^st defendant that he had advised the plaintiff to take contraceptives during the time she was on treatment , a fact that is  also echoed by the 1^st defendant.

The defendants rely on clinical notes  dated 22^nd July 2014 as proof the plaintiff was advised to start on contraceptives  but  PE1  the medical insurance claim form is dated 21^st  July 2014 and shows    methotrexate as the prescribed treatment and nothing more. 

Being aware of the risks attached to the drug when taken by a pregnant woman, it was strange the prescription for contraceptives is not reflected on PE1  but instead reflected on the treatment notes recorded on 22.7.2014.

The plaintiff denied being advised to  take contraceptives and  bearing in mind the 1^st defendant ignored guidelines for treatment  by  Allied health professional, I find on a balance of probabilities that it is more probable than not  the  plaintiff was not advised to take contraceptives and neither where they prescribed.    It is for this reason she conceived most probably when on treatment as confirmed by Dr. Kyeyune DW3 who examined her on 6^th August 2014 and discontinued the methotrexate .

It is not disputed that the plaintiff suffered a miscarriage at approximately  five weeks as confirmed by Dr. Kyeyune .   The expert witnesses  Dr. Kyeyune  and  Dr. Katusiime confirmed the impugned drug has adverse effects on pregnancy and causes  congenital abnormalities, abortion, intra uterine fetal death among other defects ( report by Dr. Katusiime).

Although Dr. Kambugu in his report rates the drug as gold standard for nail psorias, he does not state its effects on pregnant women .  His report is therefore  not helpful at all .

The fact that the plaintiff suffered a miscarriage is a direct consequence of the  impugned drug.

Counsel for the defendant submitted the plaintiff contributed to the injury suffered because she did not  have protective sex and did not take contraceptives as advised by the 1^st defendant.

I have found that the 1^st defendant did not  properly advise the  plaintiff  to guard against pregnancy during the treatment  and therefore the fault lies with him and not the plaintiff.

Counsel for the defendant submitted  the plaintiff was an unreliable because she lied she had not conceived after  the miscarriage. While I find that indeed the plaintiff lied when she denied she producing a child in 2016 after  the miscarriage in August 2014, the lie does not go to the root of her case which is that she suffered a miscarriage after taking methotrexate prescribed by the 1^st defendant.  Whether she produced a child or children thereafter does not take away the professional  duty of  the 1^st defendant to take reasonable  care and observe all standards procedures before prescribing drugs.

On the first issue , I find that the 1^st defendant acted negligently when he did not consult specialist service provider and when he did not  carry out all procedures under the clinical guidelines before prescribing  methotrexate to the plaintiff and he did not advise her to take contraceptives  which led her to conceive while on the drug and  suffer a miscarriage.

Issue No. 2: whether the 2^nd defendant is vicariously liable for  the negligence of the 1^st defendant.

PW1 Issa Bulafu general manager of case Medical Centre confirmed the 1^st defendant was their employee.   In all cases of  breach of duty or professional duty  by an employee  committed during the course of employment , the employer is vicariously liable. As held in Barnett v Chelsea & Kensington Royal Hospital [1961] QB 428,  a hospital is liable for the acts of its staff where they are negligent in giving treatment .

I therefore find that the 2^nd defendant is liable for the negligence of  the 1^st defendant, its employee.

Issue No. 3: Whether the 2^nd defendant  failed in its professional duty owed to the  public to ensure the verification of all its employees’ professional qualifications and competences.

As rightly submitted by counsel for the defendant, no evidence was availed by the plaintiff to show that the 2^nd defendant did not regularly do  due diligence on its prospective employees.

Moreover, counsel for the plaintiff did not canvass this issue in his submissions.

In the absence of evidence to support this sweeping claim, I   find  it  has not been  proved on a balance of probabilities.

Issue No. 4: Remedies

From the submissions of counsel for the plaintiff, it is apparent  the plaintiff dropped all prayers in the plaint save general damages.  

The plaintiff testified she was attended by the 1^st defendant who looked at her finger nails and prescribed methotrexate . She swallowed the drugs as prescribed and two days later , she woke up with a pain in the back and was unable to  bend , lift or carry anything. On 6^th August 2014, she visited Case Medical Center and Dr. Kyeyune who confirmed she was pregnant which later aborted.

The principle that guides the award of damages in  torts is that the claimant is put in the position he or she would have been had the tort not been committed.  The claimant is therefore compensated for the pain and suffering she endured.

In this case, the  plaintiff is entitled to  general  damages as of right for the  professional negligence of the 1^st defendant  for which the 2^nd defendant is vicariously liable. She will also be entitled to compensation for  the pain , suffering and inconvenience of a miscarriage in early pregnancy.  

Doing the best I can, the plaintiff is awarded general damages of  20,000,000/   for the professional negligence and the pain and suffering caused by the negligence.

In the premises, the plaintiff’s suit succeeds with the following orders:

1. General damages of 20,000,000/   is awarded against the 1^st and 2^nd defendants severally and  jointly .
2. Interest at the rate of 10% p.a from date of judgment till payment in full.
3. Costs of the suit to the plaintiff.

DATED AT KAMPALA THIS 27^TH DAY OF NOVEMBER  2018.

HON. LADY JUSTICE H. WOLAYO

Legal representation

Abbas Advocates for the plaintiff

D & G  Associated Advocates for the defendants