Court faults pathologist for causing Ayiru’s death

Saturday October 24 2020

Mercy Ayiru, a 34 – year – old lady died while undergoing an operation to remove uterine fibroids. PHOTO/NMG

By Sylvester Onzivua

Mercy Ayiru, a 34 – year – old lady died while undergoing an operation to remove uterine fibroids.

The State contended that her death was caused by a rash and negligent act when the tube to supply her with oxygen and anaesthesia during the operation was wrongly inserted into her oesophagus instead of her trachea. 

The proprietor of the hospital and the anaesthetist were arraigned before court and charged with causing her death.

Post-mortem report
Two pathologists carried out the post-mortem examination at 3pm on October 14, 2010. At the post-mortem, the pathologists noted that the deceased was a well-nourished woman with no obvious illness that could have led to an early death. 

They noted a small abdominal incision of about 2cm long made above the umbilicus, penetrating into the abdominal cavity. They found blood stained fluid in the abdominal cavity and bruising of the thin membrane lining the intestines and half a litre of blood in the patient’s stomach (this was most unusual).  

The pathologists concluded that the cause of death as consistent with intra-operative neurogenic cardiac arrest and associated acute gastritis (inflammation of the stomach lining). 


This was the report presented to the Medical Council and it was further explained that the patient died due to heart failure caused by tugging at the thin membrane lining the intestines. And this can only occur when a patient has received inadequate anesthesia. 

This was further corroborated by the note from the hospital that the patient’s heart had significantly slowed down in the course of the operation before finally stopping. 

Inadequate anaesthesia
There are, however, many reasons why a patient may be receiving inadequate anaesthesia and one of these is wrong intubation. 

Court reviewed the evidence of the pathologist before the Medical Council and failed to reconcile this fact with the testimony of the pathologist in court; the pathologist testified that the cause of death could be attributed to an anaesthetic accident following wrong intubation. 

To court, the pathologists did not mention anything about an anaesthetic accident when the first report was made in October 2010. Court also had the impression that the pathologist did not advance this cause of death to the Medical Council (not true though). 

The pathologist, however, told court that the death was attributed to wrong intubation after reading the statement of the lead surgeon Dr Rafique Parker. 

This was consistent with what was found at the post-mortem examination.
Court, therefore, wondered why the pathologist who testified before the Medical Council and later in court was silent about the vital fact of an anesthetic accident. 

The State, whose responsibility it was to prove the case beyond reasonable doubt, did not answer this question. To court, there was a clear contradiction and inconsistency between the evidence given before the Medical Council and the court in respect of the cause of death.

In the opinion of court, the most independent and professional opinion that the pathologist offered was that to the Council as it was two years after the post-mortem. 

Court ruled that the pathologist was not quite independent and twisted his opinion when he testified in court on the cause of death to fit in line with the charge sheet.

What court did not consider
Court however did not consider the following;
• The pathologists requested the team of doctors who had operated on the patient to be present at the post-mortem examination to provide more information on what transpired during the operation and none of them came.
• The written post-mortem report was very consistent and court did not point out any inconsistencies in the post-mortem report.
• There was no other explanation for cause of death.
• The post-mortem report was written in a technical language as is the standard but the explanation in court was in a layman’s terms to enable court understand it. It is apparent that court failed to reconcile these two aspects and considered the two versions contradictory.
• An anaesthetic accident is part of an intra-operative death.
• The Medical Council, that is made up of technical persons, were satisfied with the post-mortem report and concurred with the cause of death after other independent investigations.  
• Court did not justify itself when it imputed impartiality to the pathologist. 

The evidence of the anaesthesiologist 
An expert anaesthesiologist testified as part of the inspection team. The inspection took place one year after the death of the patient and concluded that equipment in the theatre was defective and inadequate. 

The inspection was done at the request of the Medical Council and as part of its investigations.

The anaesthetist told court that he used a laryngoscope to look into the patient’s throat and then insert in the tube to deliver oxygen and anesthesia. To court, the expert anaesthesiologist did not state whether the laryngoscope was defective or not. 

To any sane medical person, this is a very absurd observation by court as the issue is hardly the laryngoscope but rather the insertion of the tube. It is not unlike blaming the pen for a wrong judgment written.

Court also faulted the expert for not explaining in detail the advantages of various ventilators and not stating whether the ventilator in the theatre was completely useless and incapable of completing the task.

Court observed that the witness was an expert anaesthesiologist of many years standing. His opinion in court was restricted to equipment inspection and not his professional opinion about the anesthetic accident complained of. 

It was, therefore court’s opinion that the expert would have been in the best position to give an opinion on whether in fact the tube had been wrongly inserted. 

No such questions were put to him and in the opinion of court this was a fatal oversight on part of the prosecution. Prosecution should have asked the witness on causes and effects of wrong intubation and how this can be detected and mitigated and what the chances were that this had happened to the patient.

To be continued...