State appeals doctor’s acquittal

Monday November 30 2020
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By Sylvester Onzivua

The Oxford Advanced Learner’s Dictionary of Current English defines a rash act as “acting or doing something without careful consideration of the possible results”. 
And the Blacks Laws Dictionary defines negligence as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. 
It is conduct that falls below the legal standard established to protect others against unreasonable risk of harm, and conduct that is intentionally, wantonly, or wilfully disregardful of others rights.

It denotes culpable carelessness. And when the negligence is gross or so extreme that it is punishable as a crime, it is then defined as criminal negligence.  Negligence is gross if the precautions to be taken against the harm caused are very simple and should have been taken but for the poorly endowed with physical and mental capacities.

Applying criminal negligence
A doctor and an anaesthetist were charged with criminal negligence when a patient in their care died as a result of a wrong intubation. The trial court acquitted the two but the State appealed against the acquittal. 

One of the grounds of the appeal was that the failure to ensure that the tube to supply the patient with oxygen and anaesthesia was properly inserted before the surgery commenced was an act of gross criminal negligence on the part of the doctor and the anaesthetist.  The accused persons were duty bound to ensure that the tube was properly inserted and, more importantly, it did not cost anything extra but their professional skills to double check and triple check that the tube was in the right place. 

They had all the time to do this. The failure to ensure that the intubation was correctly done cost the patient her life and to the State this was gross negligence and amounted to a rash or negligent act and asked the Appellant court to so consider it.

Wrong intubation
The State submitted that there was overwhelming evidence that the wrong intubation, which was the rash and negligent act complained of, directly caused the death of the patient. The sister of the deceased who accompanied her that morning when she was called for the surgery told the trial court that the anaesthetist assessed the patient that morning and declared she was fit for surgery. 

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She also testified that a doctor who was in the operating room rushed out 20 minutes later to tell her that her sister’s heart was failing. The pathologists who carried out the post-mortem examination noted that the surgery had barely commenced when the patient died and that the patient died as a result of wrong intubation as evidenced by the finding of half a litre of blood in her stomach.

Professional inquiry 
The Medical Council carried out a professional inquiry into the death of the patient and concluded that the patient’s death was directly attributed to wrong intubation and the patient died on the operating table due to lack of oxygen.
The evidence of the defense clearly corroborated that of the State; the doctor testified that the cause of death of the patient was established but did not state that it was different from that the State had adduced. 

The anaesthetist testified that the alarm went off when the theatre technician opened the tube to release carbon dioxide. The entire defense evidence did not, therefore, contradict the fact that deceased had been assessed and pronounced ready and fit to undergo surgery, that the deceased’s heart slowed down before she died, that the deceased died at the commencement of the surgery and half a litre of blood was found in her stomach. The trial court ignored all these vital pieces of evidence. To the State while the trial court properly stated the law relating to circumstantial evidence in its judgment, the court misapplied the principle to the facts in this case.
 
The trial court in its judgment concluded that the evidence of the anaesthetist opened the door to other possible causes to the patient’s death. To the State, this conclusion by the trial court was not supported by any evidence on record as no witness in court raised or advanced any other possible cause of the deceased’s death. This was evidence of bias by the trial court. Nobody brought any evidence to challenge that of the pathologist.

The State submitted that the evidence it produced regarding the cause of the patient’s death was overwhelming and did pass the circumstantial evidence test and it was coherent and consistent. The State concluded that the trial court, therefore, made a serious error in the application of the principle of circumstantial evidence to the facts of this case and therefore came to a wrong conclusion. 

The State contended that the prosecution’s evidence proved beyond reasonable doubt that the patient’s death was a result of a rash or negligent act of wrong intubation by the accused persons at the time of commencement of the surgery. The trial court erred when it found otherwise.


 Disclaimer:  This article is based on a ruling that the Uganda Medical and Dental Council availed and submitted in an open Court of Law                                                    

To be continued

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