On October, 14, 2010, Dr Edward Gasterfson Tamale Ssali, the proprietor of Women’s Hospital International in Bukoto, Nakawa Division in Kampala invited a one Dr Parker Rafique from Nairobi to operate on a patient.
The patient that Dr Parker was hired to operate on died shortly after the start of the surgery and the death was attributed to an anesthetic accident.
Dr Parker was not and had never been certified and registered by the Uganda Medical and Dental Practitioners Council to practice medicine in Uganda as requested by law.
The Uganda Medical and Dental Practitioners Act prohibits the practice of medicine in Uganda without a certificate issued by the Council and to do so is a criminal offence punishable by imprisonment.
Dr Tamale and the anaesthetist were charged and prosecuted at the Chief Magistrate’s Court of Buganda Road for causing the death of the patient under the rash or negligent act. Dr Parker sneaked out of the country and was, therefore, unavailable to stand trial. The trial court, however, acquitted the two.
The prosecution on behalf of the State was not satisfied with the judgment and appealed. One of the issues raised in the appeal was that the trial court completely ignored the fact that the surgeon who was hired to carry out the surgery was not licensed to practice in Uganda. This vital evidence was not mentioned anywhere in the judgment but swept under the carpet.
The trial court ruled that the doctor was not in the operating theatre at the start of the operation, and therefore did not participate in the commission of the crime. The court concluded that prosecution had failed to prove common intention and therefore participation of the accused persons in the commission of the offence.
To the State, the trial court misapplied the principle of common intention as envisaged under the law. The principle is that when two or more persons form a common intention to act together and an offence is a foreseeable outcome of that act, each of them is deemed to have committed that offence.
It is now settled in law that an unlawful common intention does not imply a pre-arranged plan. Common intention may be inferred from the presence of the accused persons, their actions and the omission of any of them to disassociate from the action.
The unlawful action can develop in the course of the events though it may not have been present from the start. It is immaterial whether the original common intention was lawful so long as an unlawful purpose develops in the course of the events.
It is also irrelevant whether the two participated in the commission of the offence. Where the doctrine of common intention applies, it is not necessary to make a finding as to who actually caused the death.
The State submitted to the appellant court that when a common intention is established, it becomes irrelevant as to who finally committed the actual offence. The accused persons will be guilty of the offence as long as they shared a common intention in the unlawful resulting action.
To the State , there was undisputed evidence that the patient had been referred to Dr Tamale Ssali by another colleague.
The doctor , therefore, owed the patient a duty of care as the primary doctor and proprietor of the health facility. Indeed, the doctor scheduled the surgery and invited Dr Parker to carry out the operation. The evidence on record shows that the doctor received the patient and handed her over to the anaesthetist and the surgeon. The doctor told court that he was not physically present in the theatre when the patient died at the onset of the operation.
The State, in the appeal, submitted that it was the duty of the primary doctor to ensure that the surgery was carried with reasonable skill and care and the doctor failed and or neglected to supervise the patient’s surgery and this resulted in the tragic death of the patient. The doctor did not go to attend to another emergency but according to his own testimony he went to his office.
The State submitted that this was gross negligence by the doctor as this was his patient.
The doctor was no ordinary doctor but a highly qualified consultant obstetrician surgeon and it should have been his cardinal duty and in his interest to be present during the surgery he had hired other medical and health practitioners to undertake. If he had been present at the surgery, he would have identified that there was an error during intubation and this would have saved the patient.
The doctor, during an earlier hearing, admitted that when he was called to the theatre when the alarms went off, he immediately identified the intubation error and directed the anaesthetist to correct the error but it was too late to save the life of the patient.
There was overwhelming and unchallenged evidence on record that the second accused person, the anaesthetist, wrongly inserted the oxygen tube into the patient’s oesophagus instead of the trachea and he admitted this under oath before the Medical Council. The proprietor of the hospital too admitted this much.
Disclaimer: This article is based on a ruling that the Uganda Medical and Dental Council availed and submitted in an open Court of Law
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