Why prosecution appealed Dr Tamale Ssali’s acquittal  

Saturday November 21 2020
s01pix
By Sylvester Onzivua

 The Chief Magistrates Court of Buganda Road was not satisfied with the evidence of the Uganda Medical and Dental Practitioner’s Council when the council investigated the death of Ms Mercy Ayiru. 

Ms Ayiru died on October, 14, 2010 at the Women’s Hospital International in Bukoto, in Nakawa Division in Kampala while undergoing laparoscopic surgery to remove uterine fibroids. The council had faulted both Dr Tamale Ssali and an anaesthetist in causing the death of the patient. 

Dr Tamale Ssali was judged to have been professionally negligent when he, as the patient’s personal doctor, did not supervise the treatment given to the patient.
The anaesthetist acknowledged before the council that he wrongly inserted the endo-tracheal tube into the patient’s oesophagus instead of her trachea at the beginning of the operations.

The accused persons, however, turned around in court and denied the charge of causing the death of the patient by rash or negligent act. The court acquitted the two and the State, represented by the Directorate of Public Prosecutions appealed the decision of the trial court.
Evidence
The evidence of the Medical Council was presented in court by the late Dr Margret Mungherera. She told court that the council conducted an inquiry into the death of the patient and all the witnesses who testified in court also gave evidence before the council and all the witnesses testified under oath before the council. 

The anaesthetist admitted before the council that he inserted the tube wrongly and when he tried to adjust it and put it in the right place the patient became distressed and eventually died even after they tried to revive her.

 Dr Tamale Ssali admitted before the council that the intubation had been done wrongly by the anaesthetist.

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 The council then concluded that the tube had, indeed, been wrongly placed in the oesophagus, the place of the passage of food, when it was supposed to be placed in the windpipe. To the council, the patient died on the operating table due to lack of oxygen.

Dr Mungherera supported her testimony with a written record of the proceedings and these were admitted as part of the evidence. The proceedings captured Dr Tamale Ssali’s admission that Ms Ayiru died due to cardiac arrest caused by lack of oxygenation into her lungs during the induction of anaesthesia.
Errors 
To the State, court totally disregarded the evidence adduced before the Medical Council and the testimony of Dr Mungherera. The court did even worse; it went ahead to consider parts of the evidence that it thought would help acquit the two accused persons. The State submitted in the appeal that the trial magistrate judge completely misunderstood the importance of the evidence that was adduced before the Medical Council, including a recording of the proceedings.  

One of the grounds that the court used for rejecting this evidence was that the surgeon who performed the operation did not testify in person before the council and the court. 
Court also ruled that the surgeon was a potential co-accused and that his evidence was hearsay and, therefore, inadmissible. Court also found fault with the composition and the manner in which the council exercised its jurisdiction during the inquiry.

To the State, the trial court erroneously constituted itself into an appeal court to consider the merits of the ruling of the Medical Council when this was not its mandate in this case. 

This, therefore, clearly affected the court’s evaluation of the evidence including failing to assign any evidential value to the proceedings of the council, the decisions of the council and the testimony of Dr Mungherera. 

The State in its appeal submitted that trial court should have restricted itself in evaluating the evidence before it, including the statements made by all the witnesses, the accused person’s statements inclusive.

 The trial court ought to have assigned deserving weight to the findings of the Medical Council.
The law 
The Medical and Dental Practitioners Council is a statutory body constituted by law to monitor and control professional and dental practice in Uganda. 

The law prescribes the composition of the council and empowers it to conduct inquiries and make findings on allegations of professional misconduct by medical and dental practitioners. 

Persons who are subject to an inquiry are entitled to legal representation before the council. Provisions of the Penal Code Act apply to the proceedings of the Medical Council and decisions of the Council can be appealed to the High Court. 

In this particular case the decision of the Council and its findings were not appealed by any of the accused persons.
Observations
To the State, the trial court should have respected the findings of fact of the Council but not seek to rationalise them. 

The Council had the opportunity of looking at other documents such as the patient’s file from the hospital which court did not. 

The evidence of Dr Mungherera regarding the statements made by Dr Tamale Ssali and the anesthetist before the Council about what happened in theatre on the fateful morning the patient died should have been considered by the trial court. Had the trial court done this, it should have reached a different conclusion on this matter; it would have convicted the two rather than acquit them.                                   

 To be continued

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