It has been described as one of the most unique cases of medical negligence that have ever been recorded in Kenya.
Picture this: A couple decides that they do not want any more children or do not want a child at all, for whatever reasons.
The couple then decides to see their personal doctor and, after examination, the physician prescribes the best method of birth control which allows them to enjoy their lives without worrying about ever getting a child.
But, after some time, the woman discovers that she is pregnant. Such a case happened in Nairobi in 2011.
The couple, angry with their doctor for misleading them, sued for psychological pain and suffering.
They also sought to be paid for the cost of care and upbringing of the child, from the date of birth to the time the child attains the legal age of 18 years. They won.
In May 2015, the judge awarded the woman KSh500,000 for pain, suffering and loss of amenities and a further KSh4,320,000 for cost of care and rearing the child to the age of 18 years.
She had initially sued for medical negligence but later amended the case to include the rest of the damages.
But the private hospital and the doctor filed an appeal against the decision and managed to reduce the amount slapped on them by the High Court.
In delivering judgment, the judges agonised whether it was the right thing to do and what happens to the child, later in life, when he or she discovers that the parents did not want him or her and actually pursued the case in court.
The bench of judges, which heard the case, decided not to pursue this line of thought and left it to the couple to figure it out by themselves.
According to the couple, it was some time in 2011 when, having determined that two children were adequate for them, they sought advice on an appropriate birth control method that would prevent conception.
The hospital recommended an implant known as Implanon, which they assured would prevent conception for a period of three years from the date of implantation.
The couple took the advice and the woman had the implant surgically placed in the inner part of her upper left arm, or so she believed.
She was then assured that she was free to engage in sexual intercourse with her husband without contraceptives.
But about a year later, she was shocked to discover that she was pregnant.
She was even more shocked when tests confirmed that, after all, there was no Implanon implanted in her body as claimed by the hospital.
She delivered a healthy, although unplanned, child in early 2013.
She sued the hospital for the trauma, depression and mental anguish that she suffered as well as marital disharmony - as a result of the pregnancy - and interference with her career aspirations.
Justice Hatari Waweru ruled that medics owe their patients the duty of care to perform those services to the professional standards expected of them.
“When they fall short they must bear the consequences,” said Justice Waweru.
The aggrieved woman argued that the fact that the baby was not planned for had disrupted the family’s socio-economic plans and was “going to significantly cause a strain” on the family’s finances “in terms of care, upbringing, food, clothes, entertainment, education, shelter, medical and general welfare".
The hospital appealed against the decision and managed to reduce some of the award.
In the decision, Justices Daniel Musinga, Kathurima M’Inoti and Agnes Murgor said they were persuaded that the award of Sh4.3 million as costs of raising the baby was not justified but went ahead to uphold the award for pain and suffering.
“The award of pain and suffering, which is not subject of this appeal, was properly awarded, and we would add, not the least due to the deplorable conduct of the appellant of misleading the respondent that it had implanted her with an Implanon rod, which it had not.
Had the respondent cross-appealed for enhancement of the award for pain and suffering, we would not have hesitated to grant the same,” they said.
In the decision, the judges looked at decisions from foreign jurisdictions vis-à-vis Kenya’s population policy.
The woman, however, had opposed their use arguing that some of them were inapplicable and in her view, denial of costs for bringing up an unplanned baby amounted to violation of her right to decide the size of her family.
It was also her argument that there was nothing in public policy to justify the view that an unplanned child is a blessing rather than a liability, because the costs of bringing up the child were a direct financial injury to the parent.
In another matter, a woman took on a Nairobi-based hospital after she fell pregnant despite undergoing permanent sterilisation at the facility.
The woman took the matter to the Kenya Medical Practitioners and Dentists Council (KMPDC), stating that she had requested to have permanent sterilisation done during caesarean section.
But she became pregnant in 2018, two years after the procedure.
The KMPDC said the investigating committee had considered the allegations and found that the bilateral tubal ligation was done and samples taken for histology, and a report was submitted indicating that the sample was normal fallopian tubes that are fully transected.
“The committee also noted that it is scientifically proven that no method of sterilisation is entirely foolproof and there are possibilities of failure due to natural reasons. The complaint was dismissed,” the council said.
Dr Juma Mwangi, a gynaecologist at Nyeri County Referral Hospital, said that contraception should not be a controversial issue and couples need to understand that all contraceptive devices have varying failure rates.
“In the tenth year after operation for example, a tubal ligation failure rate is about five in every 1,000, and so you cannot go on thinking it will be 100 per cent safe,” he said.
Dr Mwangi added that the failure rates are not limited to this method; that condom failure rate can be as high as 10 per cent depending on how it is used.
Matters relating to reproductive health are very emotive, and while a vast majority of physicians face at least one medical malpractice lawsuit throughout their career, obstetricians and gynaecologists are much more likely to be sued than other physicians.
A worldwide study reveals that nine in 10 obstetricians and gynaecologists have been sued for medical malpractice at least once in their lifetime.
In Kenya, out of the 1,124 complaints lodged with the council, 291 were made against obstetrics and gynaecology (ob-gyn) specialists. The medical litigation cases filed against obstetrics and gynaecology department is the highest.