Court decides on botched surgery case

And to add insult to injury, the doctor who carried out the surgery was never called to give evidence in court. Clearly it was not in the interest of the hospital to avail court the records of the medical procedure or to have the doctor testify.

Negligence 
Negligence, in court, on part of a particular doctor is measured against what another colleague with the same training and experience would have done in similar circumstances. 

To court failure to document such medical information is a breach of, and a deviation from, the standard of care expected from a medical professional. 

A professor of Obstetrics and Gynaecology, who testified on behalf of the teacher, gave a concise account of procedural steps that are to be taken before, during, and after an operation to remove a uterus, also known as hysterectomy. 

Testimony 
Another expert, who testified for the Attorney General, concurred with the professor.

Before court there was no record of the particular surgery carried out on the teacher and there was no record of assessment of the patient before the surgery.

The inadequacy of the recording was also manifest with respect to the immediate post operation procedure. 

Abnormal bleeding 
There was no record of any abnormal bleeding or leakage of urine or even the colour of the urine after the operation.

To court, the lack of records of how the operation was carried out demonstrated the trial and error approach by the surgeon in managing the patient. 

The patient initially had been told that what was leaking from her body was water, from her other body parts, which had collected in the place where her uterus was, and that the problem would go away on its own through antibiotic treatment.

No definitive diagnosis 
Court also observed that owing to poor record keeping, there was no definitive diagnosis of the patient’s condition right from the time of her hospitalization until she went for surgery in Pretoria in South Africa.

There were no records that basic tests, that did not require sophisticated and expensive resources, were carried out.

According to one of the experts who testified in the case, such basic tests should have been carried out on the fluid that was leaking from the body of the patient.

The evidence of this expert, that basic bedside tests that were readily doable were not done, was not challenged nor was any evidence to the contrary was presented.

The prolonged lull, without a proper diagnosis, to the judge, meant that the patient’s suffering continued unabated.

The patient, at the time the complications occurred, could not control her bladder to the point that she had to change from using sanitary pads to using adult diapers, as the leakage of the urine had become excessive.

Evidence 
According to the evidence adduced by the Attorney General, the fistula that the patient developed was a natural consequence and an expected complication of the surgical procedure that was done and did not, therefore, amount to medical negligence.

The Attorney General, further, submitted that the patient had signed a form for the purposes of consenting to undergo the said operation.

The other defence raised was that government hospitals in Africa generally lack the requisite resources to offer a higher level of treatment than that which was accorded to the teacher.

In terms of the post operation care, the Attorney General submitted that the patient was adequately cared for as she was given a catheter and diapers to control the leakage of urine and therefore there was no negligence, whatsoever, in the management of the teacher.

Court noted, with concern, that considering the evidence before it, the names and qualifications of the person who performed the operation on the teacher were unknown and the burden of adducing this evidence was squarely on the Attorney General. 

Dilemma 
Court was, therefore, not in position to ascribe the standard of care, expertise, skill and qualifications possessed by such a person.

The record of the pre-operation, operation and post-operation management was apparently never documented.

Court, as a result, was not in a position to ascertain if the requisite care and skill was exhibited during the surgery. 

In a previous and similar case court had this to say; “Therefore the qualifications, experience and levels of skill of the doctor who performed the surgery are matters which fall within this evidential burden. The Defendant has not discharged this burden. There is no admissible evidence of what qualifications the doctor who performed the surgery had, when and what levels of experience he had. In the absence of the doctor who performed the operation, not only are we deprived of the evidence of the level of skill and care he undertook, we are also deprived of evidence of his levels of qualification, and experience.”
  
There was no record of the particular surgery 

 To be continued 

Dr Sylvester Onzivua
Medicine,  Law & You