The High Court in Nairobi has awarded a patient Sh157.2 million in damages after finding a major hospital in the city liable for negligence and breach of contract in a surgical procedure performed in 2006.
The surgery led to the patient losing her cervix.
According to the judgment delivered by Justice Alexander Muteti at the Milimani Law Courts on Wednesday, June 4, Naila Qureshi, the first plaintiff, was admitted to the hospital from September 13 to September 16, 2006, for the management of pelvic endometriosis.
The court heard that during a hysterectomy performed on September 14, 2006, her bladder was injured, resulting in a vesico-vaginal fistula.
Qureshi alleged that Dr Raffique Parker, the first defendant, performed the operation unskilfully and failed to consult a urologist, despite not being qualified as a urological surgeon.
In the suit filed together with her husband, she contended that Dr Parker held himself out as an experienced and competent consultant gynaecologist.
The plaintiffs alleged that he “unskilfully performed a hysterectomy procedure” and “failed to exercise reasonable care in carrying out the operation on September 14, 2006.”
They further accused him of “wrongfully discharging the 1st Plaintiff from hospital after the operation on September 16, 2006” and of removing Qureshi’s cervix without her knowledge or consent.
The second defendant, a consultant urologist, was also accused of failing to exercise reasonable care during a subsequent repair operation on October 4, 2006.
Despite emergency repairs, the vesico-vaginal fistula persisted, leaving Qureshi with ongoing urinary incontinence and pain.
The plaintiffs also alleged that the hospital allowed unqualified practitioners to operate and failed to ensure reasonable care was exercised in the treatment and advice provided to Qureshi.
Qureshi testified that she only consented to the removal of her uterus and ovaries, and was not informed that her cervix would also be removed.
She stated that Dr Parker "never advised her at all of implications of the type of operation that was proposed and specifically maintained that the 1st defendant never told her that the cervix would be removed.”
Qureshi described persistent pain, severe urinary incontinence, and emotional distress following the procedures, as well as social stigma and loss of earning capacity.
She told the court that she suffered “severe humiliation and embarrassment, emotional distress leading to depression of having to put on diapers.”
Qureshi also recounted how friends and relatives distanced themselves from her, fearing being called upon to assist with medical costs.
Her husband, the second plaintiff, testified that he had been deprived of spousal society and services, and that the couple was forced to sleep in separate bedrooms due to Qureshi’s condition.
He told the court he had “been put to considerable trouble, inconvenience and expense, and has suffered loss and damage as a consequence thereof.”
Defendants’ Defence
In their defence, Dr Parker and the consultant urologist denied any negligence or breach of duty.
Dr Parker argued that the operation was performed with due care and skill, and that the complications were recognised risks of the procedure.
He asserted that the removal of the cervix was medically necessary and within the scope of the consent provided.
The second defendant maintained that the repair procedure on October 4, 2006, was conducted properly and in accordance with accepted medical practice.
Both defendants contended that all treatment was provided in good faith and in the best interests of the patient.
They argued that the complications experienced by Qureshi were not the result of negligence, but rather inherent risks associated with such surgical procedures.
The plaintiffs pleaded for special damages and called evidence in support thereof.
Court’s analysis and determination
After reviewing the evidence and submissions, the court was satisfied by the evidence produced by the plaintiffs.
The court found that Dr Parker and the consultant urologist failed to exercise reasonable care and skill in both the original and subsequent procedures.
“The matters set out above were caused solely by the 1st Defendant in breach of contract and negligence in the course of treatment to the 1st Plaintiff," the judgment stated.
The court emphasised the importance of informed consent, stating, “the failure to fully inform the plaintiff of the nature and implications of the surgery constituted a breach of duty.”
"The removal of the cervix was done without the plaintiff’s knowledge or consent, and the hospital allowed unqualified practitioners to operate," the judge noted.
The court also observed that Qureshi suffered great pain, sustained severe injury, loss and damage as a result of the defendants’ actions.
"The plaintiffs proved on a balance of probabilities that the 1st defendant was grossly negligent in the performance of his duty thus occasioning a life changing injury to the 1st plaintiff," the court ruled.
The consultant urologist was, however, exhonorated on the charge of negligence.
"The 2nd defendant did not contribute to the injuries sustained by the 1st plaintiff and is therefore not guilty of negligence," Justice Muteti ruled.
The judge observed that the hospital failed in its duty by allowing unqualified or unskilled practitioners to operate and by not ensuring reasonable care was provided.
The court further ruled that the hospital owed the 1st plaintiff a duty of care as a patient in their facility and that duty was breached by allowing the 1st defendant to practice in the said hospital knowing too well that he had been disbarred from practice in Uganda.
"The 3rd defendant failed to provide the latest diagnostic equipment such as a flexible cystoscope thus making it impossible for the 2nd defendant to detect the vesicovaginal fistula that Dr Gecelter and Dr Van Der Wat were able to detect and repair in South Africa," the court further ruled.
Award of damages
The court awarded Qureshi Sh157, 207, 524.20, covering general damages for pain and suffering, loss of society and services, special damages for medical expenses, and the cost of future medical care.
The breakdown included expenses for treatment in South Africa, operation fees, and future medical care.
The court awarded Qureshi Sh7,207, 524.20 special damages.
Geeneral damages were awarded as follows: Loss of cervix Sh30,000,000; loss of consortium Sh40,000,000; loss of amenities Sh20,000,000; pain and suffering Sh10,000,000 and loss of capacity to earn Sh20,000,000.
Her husband was awarded Sh30,000,000 for loss of society and services.
Justice Muteti said the costs and interests thereof were based on court rates from the date of the filing of the suit.
The judgment brings closure to a case that has been in the justice system for nearly two decades, reinforcing the duty of medical practitioners and institutions to uphold proper standards of care and informed consent.
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