It is almost always standard procedure that in cases involving deaths suspected to occur due medical negligence, expert medical evidence is what the courts of law rely on to arrive at a verdict.
In a case in which a patient died at the beginning of a surgical operation, the prosecution lined up three medical experts to testify.
A pathologist told court that the cause of death was due to lack of oxygen when the tube to supply the patient with oxygen and anaesthesia was wrongly inserted into Ms Mercy Ayiru oesophagus instead of her trachea.
Court doubted this evidence as it had not apparently been stated so in the post-mortem report. Court also faulted the prosecution for not leading one of their key witnesses, a senior consultant anaesthesiologist, to explain if indeed this could have occurred in this case. The witness instead testified on the inadequacy of the equipment in the theatre where the operation was carried from.
The Medical and Dental Practitioners Council had earlier on investigated the case and concluded the patient’s death was as an anaesthetic accident, the result of wrong intubation.
While being interviewed before the Council, the proprietor of the hospital and the anaesthetist admitted their errors. However during the criminal session they both denied the charges. A member of the Medical Council was called upon to testify as a prosecution witness.
The witness confessed to court that none of the members of the Council was an anaesthesiologist and that the Council handles disciplinary issues involving medical and dental practitioners specifically registered under the Medical and Dental Practitioners Act.
This Act excludes anaesthetists who are registered under the Allied Health Professions Act. The witness, however, told court that the members on the Council had an understanding of anaesthesia since they all had training in it. Court noted that there was no surgeon experienced in laparoscopic surgery on the Council.
To court, while the Council handled the complaint against the proprietor of the hospital, and rightly so, who was the patient’s primary doctor, the council also made findings against the anaesthetist who handled the patient.
To court, the anaesthetist was a witness but became the subject of investigations and conclusion of the council. In the interests of natural justice and to ensure that the medical council operated within the confines of law in this matter, the medical council should have restricted their opinions and findings to the professional shortcomings of the doctor and allowed the Allied Health Professionals Council to handle the anaesthetist from start to finish.
In the alternative, as soon as it became apparent that anaesthesia and laparoscopy were involved in the death of the patient the council should have co-opted an anaesthesiologist and a laparoscopic surgeon to join them in their proceedings and determination of the case in the interests of fairness and transparency.
To court, when the anesthetist gave his evidence he did so as a professional and not as a lay person. The accusations against him where doing a rash and negligent act; he insisted he followed the standard procedure and the patient only took a bad turn when the surgeon made an incision into her body and was proceeding with the surgery.
To court, there was no direct evidence on record to show that the anaesthetist did not do his job. Court was however very silent on and conveniently ignored the finding of half a litre of blood in the patient’s stomach.
The only logical and scientific explanation for this finding was wrong intubation.
Court apparently looked at some medical literature; according to medical journals, intubation of the oesophagus has some signs such as gurgling sounds over the epigastrium on auscultation, abdominal distention and absence of breath sounds in the chest.
According to literature, if the chest rises with ventilation and the tube emits mist and there are bilateral breath sounds, the tube is in the right place.
According to the anesthetist, all was well and that is why the surgeon commenced the procedure. The surgeon apparently checked the monitors and satisfied himself that all was well and then proceeded with the operation.
Court therefore wondered how possible it is for a patient to survive for twenty minutes when the patient is unconscious and not receiving oxygen because of wrong intubation.
To court no professional witness answered this question. And nobody was to tell court how long it would take a patient who had been wrongly intubated to visibly react to the mistake.
However for all intents and purposes the evidence of the anesthetist was not corroborated at all and the evidence at post-mortem was that the surgeon only made a small incision in the abdomen and bruised the membrane lining the intestines, procedures which are would not take more than 5 minutes to accomplish.
Criminal medical negligence
To court, criminal negligence allegations against health care providers are sticky and thorny issues.
Courts must be satisfied beyond reasonable doubt that the health care providers are not only negligent but to the extent that the negligence amounted to a criminal act.
The level of negligence that the health care provider must have exhibited is considerably above that which civil liability considers. Traditionally criminal negligence has been defined as gross or extreme negligence.
In order to establish criminal liability the facts must be that the negligence of the accused went beyond a mere matter of compensation between the subjects and showed such a disregard for the life and safety as to amount to a crime against the State and the conduct deserving punishment. This is a very high standard.
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...