What you need to know:
- To court AAR was therefore vicariously liable for the actions of its laboratory and staff, the doctor inclusive.
On March 29, 2007, a one Mr Denis Okaka went for an HIV test in a laboratory belonging to AAR Health Services (Uganda) Limited. The results showed that he was HIV positive, and he was availed these results. On November 17 that year the same laboratory carried out a CD4 count of the patient following the positive HIV test.
However, in May 2008, the patient developed difficulty in breathing and sought medical attention at Kampala Family Clinic where he was diagnosed with high blood pressure for which he was put on medication.
Undetectable HIV viral load
In the clinic the patient was found to have an undetectable HIV viral load in his blood and a near normal CD 4 cell count. The clinic conducted three tests for HIV all of which turned out to be negative. The conclusion from the clinic was that the patient was HIV negative.
Mr Okaka instituted a civil suit against AAR for medical negligence on December 17, 2014. The patient’s case was that as a result of the negligence of AAR’s laboratory staff he was twice diagnosed as HIV positive. He, as a result, suffered grave emotional distress, loss of self-esteem, pain, anguish, embarrassment and loss of enjoyment of life.
He asked court to award him one billion Uganda Shillings as compensation for the damages that he had suffered.
One of the alleged acts of medical negligence that the lawyer submitted to court was that AAR failed to subject the patient to pre and post-test HIV counseling. Mr Okaka told court that he was not counseled by the doctor who requested for the HIV test nor any health worker at the facility operated by AAR.
This evidence was not rebutted. The doctor who testified on behalf of AAR in this case could not point to anyone who counseled the client. The doctor assumed that the client had been counseled by the doctor who referred him for the test.
Court considered this very unlikely as there is no evidence that the client returned to the doctor who referred him to the AAR facility.
The policy guidelines strongly oblige any service provider to conduct pre and post-test counseling to any client who comes for an HIV test. The recommendation is explicit; “pre-test counseling should be comprehensive enough to allow the client, in addition to preparing for the test, to make appropriate risk-reduction plans”.
In private laboratories where counselors are not available, laboratory staff handling HIV testing should be trained in counseling skills to enable them to provide a brief session of pre-test counseling before the test”.
On the post-test counseling, the guidelines state that clients should not be given HIV results without face-to-face counseling.
In the guidelines it is also clearly stated that where the test is requested by a clinician or counselor, the laboratory staff should send the results to the requesting service provider and not give them to the patient without counseling.
To court this requirement placed a burden on AAR to prove that the pre-test and post-test counseling were done in respect of Mr Okaka when his HIV test was conducted. Mr Okaka had led evidence establishing his claim that he was not counseled as required under the guidelines and, to court, he had executed his legal burden. This shifted the evidential burden to AAR to rebut the client’s claims which AAR failed to.
Court observed that the excuse given by the doctor who testified on behalf of AAR that counseling was supposed to be done by the doctor who referred the patient to them was not in the policy guidelines.
Court was of the opinion that if the laboratory staff intended the referring doctor to conduct the counseling, the laboratory should have sent the results directly to the said doctor and not handed them over to the client.
If AAR had no counselors, it had the obligation to have trained its staff for that purpose. Court was satisfied that these facts and circumstances were sufficient to establish a breach of the duty that AAR owed Mr Okaka.
Breach of duty
There was evidence that as a result of that breach of duty, the client was led into taking wrong decisions, into stress and depression which amounted to injury in the form of pain and suffering.
In this particular aspect court ruled that AAR was negligent as it has conceded in court that the HIV test was done by a laboratory that it established and that a doctor and laboratory staff who attended to Mr. Okaka were its employees. To court AAR was therefore vicariously liable for the actions of its laboratory and staff, the doctor inclusive.
However, another issue before court was whether Mr Okaka contributed to this negligence. The lawyer for AAR had, in his submissions, told court that Mr Okaka was partly responsible for the negligence as he failed to return for another test within three months or return to see the doctor as he was advised.
To be continued ...