In BO (a minor suing through his next friend DOO v Nathan Khamala & another  eKLR, the High Court of Kenya found a doctor and hospital negligent and in breach of their duty of care in their management of a minor patient leading to severe loss and damage.
On the 31st January, 2009, the BO (the plaintiff) he attended Aga Khan University (the 2nd defendant) for medical advice and treatment after sustaining injuries to his left forearm resulting in a fractured forearm. The plaintiff was attended to by the Dr. Nathan Khamala (the 1st defendant) who recommended his admission to the 2nd defendant following which, he was admitted on the 31st January, 2009, and was discharged on the 3rd February, 2009 during which period, the plaintiff was advised, treated and managed by the 1st defendant and by other doctors, nurses and other servants and/or agents employed by the 2nd defendant.
On the advice of the 1st defendant, the plaintiff underwent a corrective surgery on his left forearm but subsequent to the aforesaid surgery, his injuries did not improve but on the contrary, he developed more complications. The plaintiff contended that the defendants were negligent. The defendant’s apart from admitting that the plaintiff was admitted in the second defendant denied everything the plaintiff stated and stated that if the plaintiff suffered the alleged injuries, it was not on account of the defendants as that they had provided proper medical care and management to the plaintiff.
The plaintiff called three witness, i.e. a doctor, his mother and himself, while the defendant did not call any witnesses.
The High Court considered the following to be the issues before it, i.e.
1. Whether the plaintiff was admitted at Aga Khan Hospital on 31st January, 2009, and whether he was attended by the 1st defendant upon the said admission.
2. Whether the 1st defendant owed the plaintiff a duty of care in administering the treatment.
3. Whether the defendants breached that duty of care.
4. Whether the plaintiff suffered any damage or loss as a result of the breach of that duty.
5. Is the plaintiff entitled to damages and if so, the quantum thereof.
6. Who should bear the costs of the suit.
The court, after analysing the evidence and the documents before it, found for a fact that the plaintiff was indeed admitted in the 2nd defendant as such ruled that that a duty of care arose once the 1st defendant agreed to treat the plaintiff upon his admission at the 2nd defendant’s facility. In holding as it did the High Court placed reliance on Ricarda Njoki Wahome (suing as the administrator of the estate of the late Wahome Mutahi(deceased) vs. Attorney-General & 2 others (2015) eKLR, where it was stated that:
“A duty of care arises once a doctor or other health care professional agrees to diagnose or treat a patient. That professional assumes a duty of care towards that patient.”
Further, on analysing various other cases and treatises, the court was of the view that a duty of care exists even where a doctor may not be qualified as long as the doctor holds himself or herself to be possess the requisite medical knowledge and skills. The court further found that the employers of a doctor were vicariously liable for the professional negligence of the said doctor.
Thus, answering the first two issues the court proceeded to consider whether the defendants were in breach of their duty of care and made a finding that the defendants were, in fact in breach of their duty of care.
In his unchallenged evidence, the plaintiff stated that he sought treatment at the 2nd defendant where he was taken by his parents after he fractured his hand in school. He identified the doctor who treated him, i.e. the 1st defendant. The treatment records produced as exhibits confirmed the fact that he was treated by the said doctor. A plaster was fixed under anesthesia but after feeling so much pain it was removed on the 2nd February, 2009, and the plaintiff was discharged on the 3rd day of February, 2009. After the discharge the plaintiff made subsequent visits to Aga Khan for physiotherapy but he did not improve and had to seek a second opinion from Dr. Audi Tanga who diagnosed his condition as Volkmann’s Ischaemic contracture and took him to theater twice. The plaintiff’s condition was, among other things suffering severe compartment syndrome due to tight plaster of Paris. Dr. Audi Tanga prepared for the plaintiff a medical report which was produced in evidence, in which he assessed the degree of permanent incapacity at 50%.
The court found the evidence of the doctor called as the plaintiff’s witness to be especially critical to this case. The witness stated that he examined the plaintiff on 23rd September, 2019, and prepared for him a medical report which was produced. The witness stated that he is a hand and orthopaedic surgeon and a specialist in hand surgery. He confirmed having worked with Dr. Tanga Audi who died in the year 2017. He took the history of the plaintiff and his examination revealed that the plaintiff suffered the following:
1. Multiple healed scars on the forearm and wrist.
2. Fixed flexion deformity of the wrist and fingers.
3. In ability to grasp objects firmly with the hand.
4. Limited extension of the fingers.
5. Limited opposition of the fingers against the thumbs.
6. Reduced sensation on the hand.
Follow up X-rays of the forearm and wrist showed healed fractures of both radius and ulna bones. The wrist joint showed flexion deformity with associated disuse osteopenia of the carpal bones and distal radius. The conclusion of the plaintiff’s witness was that the plaintiff suffered severe compartment syndrome due to tight plaster of paris. This degenerated into severe muscle ischaemic and neurosis; the median and ulna nerves were partially damaged causing reduced sensation of the fingers. The end result was severe volkamann’s ischaemic contracture of the forearm and the hand. He assessed permanent incapacity at 50%.
Based on this the court awarded the plaintiff Kes.1,500,000 in general damages along with the costs of the suit.
The finding by the Court was interesting in that it recognised professional negligence in the medical field could arise simply by someone holds himself or herself to be possess the requisite medical knowledge and skills to treat and manage a patient. The court did not also think much of the defendant’s attempt to escape liability by claiming that the plaintiff was not treated by a member of staff and found that even a person who is employed part-time is a member of staff for purposes of vicarious liability. This case has important connotations for cases of professional medical negligence, in particular and indeed for professional negligence, in general.
The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2020/07/BO-a-minor-suing-through-his-next-friend-DOO-v-Nathan-Khamala-and-another.pdf