In law, for negligence to arise, there must be a breach of duty which must also have been the direct or proximate cause of loss, injury or damage. A proximate cause is one which is a natural and continuous sequence, unbroken by any intervening event, that produces the injury complained of and without which the injury would not have occurred. The breach of duty is judged by the standards of an equal and reasonable and competent health worker.
To show a deviation from duty, the complainant must prove in the courts of law that;
There is a usual and normal medical procedure or treatment for a particular case.
The health worker did not follow this practice in the case complained about.
The health worker instead adopted a practice that no professional or ordinary skilled person would have taken.
In order to establish negligence, there is need to establish causation. This test involves the question of whether harm or injury would have occurred if the action or omission complained of had not taken place. In law the proof needed is if it is shown that the patient would not have suffered injury or harm “but for” the negligence complained of.
The burden of proof of the “but for” causation is on the complainant in the case and the courts of law will determine the case on a balance of probabilities. There is no need for scientific precision in the evidence as a prerequisite for establishing “but for” causation.
The case involved the death of a patient on table while undergoing a surgical operation. Evidence in court was to the effect that the patient’s primary doctor came out of the theatre to inquire from the patient’s attendant if the patient had ever taken any alcohol or was using any drugs. To court, this clearly demonstrated that the pre-anesthetic examination was not duly conducted as expected before the surgery was carried out.
The anesthetist in his witness statement admitted that the patient’s blood pressure was elevated at the beginning of the surgery. He, however, proceeded with the anesthesia without taking any caution or explaining the risks involved to the patient. During cross-examination, the anesthetist explained that in normal circumstances when the blood pressure is elevated, the surgery is postponed in order to control the blood pressure. Court observed that this was never done and concluded that this amounted to negligence.
The patient’s doctor stated during his cross-examination stated that the alarm on the machine monitoring the patient during the operation went off and they did not know why the alarm went off and they did not investigate further. To court, it was prudent in the circumstances for the medical staff operating on the patient to ascertain why the alarm went off or whether there were any errors but this was not done.
This therefore, was an error on the side of the medical personnel. Any prudent health worker working to save life should have ascertained the cause of the alarm. Court subsequently ruled that the omission by the health workers to ascertain what happened at the time of the operation was negligence which created a risk causing injury which would have been averted had they done so. It was the court’s ruling that the death of the patient was caused by the negligent actions of workers of the hospital.
How the costs were calculated
Court was asked to consider the last earnings of the deceased in order to determine the compensation due to the family. The deceased was earning a basic monthly salary of Shs1,255,000 at 34 years and considering the retirement age of 60 years, it is expected that the deceased would have earned a total of Shs391,560,000. The deceased used to pay school fees and provide food for her nephews and nieces.
It was, however, noted that the take home salary of the deceased was Shs864,000 and this would have translated to Shs270m (erroneously calculated in court as Shs54m) for her remaining 26 years. Court noted that the deceased could not have spent all her earnings on dependants.
In law, compensation for future expected earnings falls under general damages. The family of a deceased is entitled in theory to the exact amount of a prospective loss if it could be proved at its present value at the date of trial. But in practice since future losses cannot usually be proved with certainty, court has to make a broad estimate taking into account all the proved facts and probabilities of the particular case.
General damages are awarded at the discretion of court. Damages are awarded to compensate the aggrieved, fairly for inconveniences accrued as a result of the actions of the persons responsible for the injury or loss. Court noted that with regard for claim of general damages, there is no medium of exchange for happiness. The award must be fair and reasonable, fairness being gauged by earlier court decisions. It is important to note that no money can provide true restitution.
Court however, noted that money can provide for proper care and this must be the paramount concern of courts while awarding damages for personal injury as there must be adequate future care. The sheer fact is that there is no objective yardstick for translating losses such as pain and suffering and loss of amenities into monetary terms.
Court awarded the family Shs60m as loss of earnings, Shs5m as burial expenses and Shs35m as costs of the suit.