The Criminal division of High Court of Uganda at Kampala dismissed an appeal arising from the decision by the Chief Magistrate’s Court of Buganda Road to acquit Dr Edward Tamale Ssali for causing the death of a patient by rash or negligent act. The patient died when the tube to give her oxygen and anesthesia during the operation was wrongly inserted into her oesophagus instead of her trachea.
No valid medical license
Dr Tamale Ssali hired a doctor, Dr Rafique Parker, from Nairobi to carry out the operation. The doctor was not registered with the Medical and Dental Practitioners Council of Uganda and did not therefore have a practicing license in Uganda before he undertook the operation.
It is criminal to practice medicine in Uganda without a valid license. The High court however, strangely ruled that in this case this was irrelevant as far as the cause of death was concerned. The High Court did not give any legal backing for this bizarre opinion.
To the appellate court Dr. Parker’s competence or expertise was not raised as an issue at the Medical Tribunal or in the criminal trial. With all due respect the appellate court as well as the trial court misdirected itself on this point; the patient’s death was related to the anesthesia and not the surgery.
Dr Tamale explained that Dr. Parker was the best known surgeon for the medical conditions that the deceased had. There was again no proof to this effect. But in the view of the High Court, procuring the best surgeon in East Africa to come from Nairobi to do the operation, notwithstanding the illegality, was not reckless or arbitrary but a deliberated diligent precaution intended to achieve the best for the patient. Court did not consider the colossal amounts of money that the patient paid for this surgery nor the fact that for the size of the fibroid this operation was not suitable.
Wrong section of the law
The Constitution of the Republic of Uganda unequivocally states that substantive justice shall be administered without undue regard to technicalities. The appellate court, despite this, ruled that Dr Tamale and the anesthetist were charged under the wrong section of the law of causing death by a rash or negligent act. The law however in no uncertain terms states “any person who in a manner so rash or negligent as to endanger human life gives medical or surgical treatment” commits an offence. The appellate ruled that the words medical or surgical treatment were not included in the charge sheet and considered this a gross omission, an incurable defect. The court therefore, refused to address its mind on the charges brought against the accused persons but simply dismissed the appeal.
Cause of death
Some of the key objectives of a postmortem examination include the determination of the cause of death, the circumstances of the death and an accurate reconstruction of the events leading to the death. During a postmortem examination other investigations are initiated such as removing samples for histology and toxicology, depending on the circumstances. Not all these investigations though must be concluded to meet the objectives of the postmortem examination.
In this particular case, the cause of death was established as lack of oxygen resulting from wrong intubation. The proof of the wrong intubation was half a litre of blood found in the patient’s stomach at the time of the postmortem examination. This finding and the cause of death was not contested. In the opinion of the pathologist there was no need for histology or toxicology in this case. The appellate court however, ruled that the trial court made a correct finding that the prosecution did not prove beyond reasonable doubt that the patient died as a result of a rash or negligent act.
The appellate court also expected the toxicology and histology results to complete the postmortem findings. To the court, the omission of this evidence left a gap in the proof of cause of death and supported the trial court’s conclusion that the government pathologist did not conclusively find the cause of death to be attributed to an anesthetic accident. Both courts did, as expected, not state what more information or value the histology or toxicology would have added to the cause of death.
The evidence of the pathologist
The pathologist recorded the cause of death as consistent with intra-operative cardiac arrest and associated acute gastritis and added that samples had been removed for toxicology and histology. To the trial court the pathologist’s oral evidence appeared to differ from what was recorded at the time of the postmortem and the oral evidence, was to court, influenced by the statement written by Dr Parker.
The pathologist told court that when a patient is poorly anesthetized and certain parts of the body such as the tissue overlying the intestines (omentum) are touched, it causes the heart to slow down and subsequently stop and the patient dies. These, to both the trial and appellate courts were contradictions. The prosecution argued without success that there was no contradiction here but a scientific explanation of how the death occurred. A wrong insertion of the tube during anesthesia not only deprives a patient of oxygen but also the anesthetic drug administered through the same tube. The clinical notes from the hospital that came with the body indicated that the patient’s heart had slowed down shortly after the operation commenced and then stopped. There was evidence of bruising of the omentum. The two courts apparently chose to ignore this evidence and look the other way. The family of the deceased and the Directorate of Public Prosecutions gave up on criminal justice system in what was obviously a great miscarriage of justice. The family, instead, sought relief in the Civil Court.