Wakilii

Atcero v Women's Hospital International And Fertility Centre Ltd & 2 Others (CIVIL SUIT NO. 298 OF 2012)

High Court · [2020] UGHCCD 13 · 2020 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for damages under the Law Reform (Miscellaneous) Provisions Act Cap 79 arising from medical negligence causing death
Decision
Judgment entered for the plaintiff with damages totalling UGX 65,000,000 and costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the defendants were liable for medical negligence causing the patient's death during laparoscopic surgery. The court found that the 4th defendant negligently intubated the esophagus instead of the trachea, that examination before surgery was inadequate, and that defendants ignored machine alarms during the operation. The first defendant hospital was licensed and fit for purpose. Practicing without a license is an offence but does not per se constitute negligence. The plaintiff was awarded UGX 60,000,000 for loss of earnings and UGX 5,000,000 for burial expenses.

Outcome

Judgment entered for the plaintiff with damages totalling UGX 65,000,000 and costs

Facts

On 14 October 2010, Mercy Ayiru underwent laparoscopic surgery at the first defendant's hospital for removal of fibroids. The second defendant was the primary doctor who authorised the surgery. The third defendant (not licensed in Uganda) was invited to perform the surgery, and the fourth defendant administered anaesthesia. During intubation, the fourth defendant repeatedly inserted the endotracheal tube into the esophagus instead of the trachea, perforating the stomach and administering oxygen into it. The patient suffered cardiac arrest and died despite resuscitation attempts. A post mortem confirmed the cause of death. Examination before surgery was inadequate: 20 minutes into the operation, the second defendant inquired whether the patient used alcohol or drugs. The patient's blood pressure was elevated before anaesthesia but the operation proceeded without delay. Machine alarms sounded during the operation but were ignored. The plaintiff sued on behalf of the deceased's family under the Law Reform (Miscellaneous) Provisions Act.

Issues

  1. Whether the death of Mercy Ayiru was caused by the negligent actions of the 2nd, 3rd and 4th defendants.
  2. Whether the premises of the first defendant hospital were fit to provide safe and skilled anesthesia for laparoscopy.
  3. Whether the 3rd defendant is liable for negligence for practicing medicine in Uganda without the requisite statutory registration.
  4. What remedies are available to the parties.

Orders

  • Issue 1 answered in the affirmative — death caused by defendants' negligence.
  • Issue 2 answered in the negative — premises were fit for purpose as licensed by the Medical Council.
  • Issue 3 answered in the negative — practicing without a license does not per se constitute negligence.
  • Plaintiff awarded UGX 60,000,000 as general damages for loss of earnings.
  • Plaintiff awarded UGX 5,000,000 as special damages for burial expenses.
  • Costs of the suit awarded to the plaintiff.

Rules and key headnotes

Medical Negligence — Standard of Care — Breach of Duty
A medical professional can be held liable for negligence only where his conduct falls below the standard of a reasonably competent practitioner in his field, judged by what a reasonable ordinary medical professional would have done in the circumstances.
Medical Negligence — Causation — 'But For' Test
To establish negligence in medical cases, there must be proof of breach of duty and that the breach was the direct or proximate cause of the injury. Causation involves the 'but for' test: whether the plaintiff would have suffered harm if the defendant had not been negligent. The burden of proof is on the plaintiff, to be discharged on a balance of probabilities.
Medical Negligence — Failure to Monitor Patient — Ignoring Machine Alarms
Where medical professionals ignore alarms from equipment during an operation and fail to ascertain the cause of the alarm, this constitutes an omission creating a risk that would have been averted had they acted prudently. Such omission amounts to negligence.
Medical Negligence — Elevated Blood Pressure — Proceeding Without Delay
Where a patient's blood pressure is elevated before anaesthesia, the normal practice is to extend the operation to allow it to return to normal. Proceeding without taking this precaution constitutes negligence.
Medical Negligence — Practicing Without a License — Negligence Distinguished
Practicing medicine without the requisite statutory registration is an offence under section 27(1) of the Uganda Medical and Dental Practitioners Act. However, negligence cannot be imputed solely because of lack of a certificate to practice. A doctor who acts in accordance with a practice accepted as proper by a responsible body of medical opinion is not negligent merely because there is a contrary view.
Inspection Reports — Lack of Authorization — Credibility
Where a witness produces an inspection report of a health facility but admits in cross-examination that he had no written instructions from the regulatory authority to conduct the inspection and the report was not addressed to or submitted to that authority, the report cannot be relied upon as credible evidence that the facility was unfit for purpose, particularly where the facility holds a valid license from the regulatory authority.
Special Damages — Burden of Proof — False Receipts
Special damages must not only be specifically pleaded but must also be strictly proved. Where a plaintiff produces receipts purporting to prove special damages but investigation reveals that some of the named entities never existed and the receipts are false, and where no evidence is adduced to verify the existence of dependants, the claim for special damages in respect of those items must fail.

Legislation cited (4)

Cases cited (13)

  • Blyth v Birmingham Water Works Co (1856) 11 Ex 789
  • Donoghue v Stevenson [1932] AC 562
  • Watsemwa and Another v Attorney General and 3 Others (Civil Suit No. 675 of 2006)
  • Bolitho v City and Hackney Health Authority [1998] AC 232
  • Kusum Sharma v Batra Hospital and Medical Research Centre (2010) 3 SCC 480
  • Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
  • Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635
  • Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871
  • F v West Berkshire Health Authority [1989] 2 All ER 545
  • Robert Coussens vs Attorney General (Supra)
  • Heil v Rankin [2000] 3 All ER 138
  • Bonham-Carter v Hyde Park Hotel [1948] 64 TLR 177
  • Uganda Electricity Board v G.W. Musoke (Supreme Court Civil Appeal No. 30 of 1993)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Atcero v Women's Hospital International And Fertility Centre Ltd & 2 Others (CIVIL SUIT NO. 298 OF 2012) [2020] UGHCCD 13 (13 March 2020)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.