Zambia: High Court
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RTF formatEDNA NYASALU v ATTORNEY-GENERAL (1983) Z.R. 105 (H.C.)
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HIGH COURT SAKALA, J. |
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Flynote
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Tort - Duty of care - Doctor - Patient owed to. Tort - Negligence - Professional negligence- Proof thereof. |
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Headnote
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The plaintiff
claimed damages for injuries sustained as a patient at U.T.H.
while under the care and attention of a qualified
medical doctor.
The claim arose out of the doctor's failure to administer test or
enquire orally as to whether the patient
was allergic to Procaine
Penicillin It was contended that the doctor had been negligent in
not performing this standard procedure
and thus was in breach of
the duty of care owed to the patient. p106
Held:
Cases cited:
For the defendant: A. M. Kasonde, Principal State Advocate. |
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Judgment
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SAKALA, J.: The plaintiff's claim suing by her next friend is for damages for personal injuries arising out of an alleged negligent administration of 3c.c. Procaine Penicillin at the University Teaching Hospital on 27th December, 1974. The particulars of the injuries as per writ are that on 27th December, 1974 3c.c. of procaine penicillin administered to the plaintiff resulted in cardiac arrest and brain damage rendering the plaintiff now abnormal.
Paragraphs 3, 5, 6, 7, 8, 10 and 11 (i) (ii) of the amended statement of claim read:
p107
PARTICULARS
OF NEGLIGENCE
PARTICULARS
OF INJURIES
Paragraphs 3, 4, 5, 6, 7 and 8 of the amended defence read as follows:
1. Warm saline gargle.
3. Procaine penicillin 3cc im. X 5 days.
p108
The plaintiff
called two witnesses in support of her claim. On account of mental
and physical abnormalities, she did not herself
give evidence. For
this reason, she had sued by her next friend. PW1, the plaintiff's
husband is a building superintendent,
with the Lusaka Urban
District Council. He testified that he married the plaintiff in
1969. She was then working in the Ministry
of Rural Development as
a junior clerical officer. In 1975 she was stopped from work by
the Medical Board of Zambia on medical
grounds. The witness stated
that they have two children both boys, one born in February, 1970
and another born January,
1973. The two children attend Thorn
Park Primary School. PW1 explained that on 27th December, 1974, he
left his home in Chilenje
South in the morning going for work
together with his wife. When he knocked off in the evening he
went home straight. The
witness stated that when they woke up the
morning, they were all in good health. After knocking off, he
waited for his wife
at home until 19.00 hours. She still did not
arrive home. The witness said he was worried. He went to his
parents-in-law
but she was not there. He checked at his cousin,
she was not there. Finally, company of his cousin who is a doctor,
they
went to the hospital. Later he learnt from his cousin that
his wife was in serious condition in hospital. At 20.00 hours he
saw his wife lying in bed with swollen lips and closed mouth. She
was speechless. The witness said he read the bedside chart
which
stated that his wife had been given a penicillin injection and
collapsed, the heart beat had stopped and she had become
unconscious. The witness further testified that his wife stayed in
hospital for 21 days. By then she had lost speech and
became
paralysed, the condition she is in today. The hands and legs are
stiff. She cannot make use of them. According to
PW1, the
plaintiff can no longer perform the functions of a housewife. The
witness also explained that after discharge she
was on review,
after every month for the whole of 1975. According to PW1, there
was no improvement on her speech and physical
fitness. The witness
further explained that the Medical Board informed him that his
wife had brain damage and one of the
veins was damaged causing her
speechless and paralysis. He stated that at the time the Medical
Board recommended her retirement,
she used to receive a net salary
of K60
a month. When
cross-examined, PW1 stated that he did not attend the University
Teaching Hospital with his wife on 27th December, 1974. PW2, the
brother of the plaintiff, told the court that the plaintiff was
suing through him because she is unable to speak,
a condition she
has been in since 27th December, 1974. He explained that he went
to the hospital on that day to see his sister.
She looked very
sick and unable to respond when questioned. This witness also told
the court that the plaintiff was born
in 1951. She attained Form
Four education. In cross-examination, the witness explained that
he was not a position to inform
the court how his sister was
treated at the out-patient. PW3, Dr Samson
Simbalasha Kasuka Mundia, although called to give evidence on
behalf of the plaintiff objected to being asked
any p109
medical
questions. Thus counsel for the plaintiff closed his case after
dispensing with Dr Mundia's evidence. The defendant
called two witnesses both of them doctors. DW1 testified that in
1974 Ednah Nyasulu was admitted into the female
medical ward of
the UTH from the casualty where she had received treatment for
acute tonsillitis. This doctor explained that
the first time he
came into contact with the patient was on 6th May, 1975, after the
patient was discharged but attending
speech therapy. The doctor
further explained that the patient was admitted after a diagnosis
of anaphylactic shock. He stated
that this can be caused by a
number of things like high blood pressure. According to the
doctor, an injection of 3cc procaine
penicillin could be one of
the causes of anaphylactic shock. The doctor also explained that
there are various kinds of medication
for tonsillitis; one of them
being penicillin. He testified that in case of penicillin there is
a theoretical routine of
asking patient whether he has received
penicillin before or not and whether he had an adverse effect.
According to the doctor
if the penicillin is in an injection form
the patient is supposed to be given a test dose under the skin.
The doctor or nurse
is supposed to wait for about 30 minutes when
it is supposed to show whether the patient does not react
adversely. If not,
then a full dose is given which according to
DW1 varies from doctor to doctor. The doctor explained that there
are pitfalls
about the oral inquiries in that some patients in our
society might not know whether they react to penicillin or not.
The
doctor also said that even in cases where a patient says he
never reacted he might react. The doctor also explained that the
pitfall about the test dose is that the test dose can itself kill
a patient who reacts to penicillin. The doctor told the
court that
although the test dose reduces a number of accidents resulting
from penicillin it does not eliminate the accidents
completely.
The doctor also informed the court that whilst it is acceptable to
ask a patient to establish whether he reacts
or not, it is not
hundred per cent protective. According to this witness, the
prescription of penicillin was quite in order
with the standard of
practice of medicine. But he could not comment on what was given
to the patient previously. In
cross-examination, the doctor stated that doctors were aware that
certain patients were allergic to penicillin earlier
than 1971.
The doctor stated in cross-examination that it is for this reason
that the doctors use the oral questioning and
test dose. The
doctor stated that these methods are necessary but not every
doctor asks patient. The doctor explained that
it is standard
procedure to give a test close, but one may ask. The doctor also
testified in cross-examination that cardiac
arrests is a state
where the heart stops to pump out enough blood. The doctor also
stated that the reactions of procaine
penicillin vary. DW2, another
doctor from the University Teaching Hospital, testified that he
recalls in 1974 being called to treat patient
by the name of Edna
Nyasulu. The doctor explained that on 27th December, 1974, at
13.30 hours, he was called at the admission
ward to go and see a
patient who had been admitted via the filter clinic and reposed
unconscious. p110
According to the doctor, the brief history of the patient was that she had been given an injection of procaine penicillin after she had complained of sore throat. He examined the patient. She was deeply unconscious; she did not resist even to pain, pulse was very weak, the blood pressure was not recordable, she was in a state of shock. The doctor explained that after the examination, he proceeded to treat the patient. On account that she was in a state of shock, she needed fluids as quickly as possible. The doctor stated that he reviewed the patient again at aloud 15.00 hours, she was now conscious, she responded to simple questions. Asked to comment on the prescription, the doctor stated that the prescription was given at the filter clinic but he was not there. He explained that she was given 3cc procaine penicillin to treat tonsillitis. The doctor explained that there are many drugs for treating infections but it is up to the individual doctor to decide the best method of treating a patient. According to the doctor in the present case, penicillin was one of the good antibiotics used in treating tonsillitis. He further explained that penicillin can be administered orally or by injection. In the instant case, the doctor stated that it was given by injection and that it depended on the judgment of the admitting doctor if he thought the infection was very serious. The doctor further told the court that the decision of the method of administering whatever prescription of penicillin depends on the clinical condition of the patient; whether very sick and needing treatment as quickly as possible or not. In the present case, according to the witness, the infection was quite severe that the doctor needed to treat the patient as quickly as possible by injection. He explained that there are many other types of penicillin but procaine, is usually administered as intra-muscular injection. The doctor testified that the standard practice of administering penicillin is that before you prescribe any drug o any medical antibiotics, you ask the patient if he is allergic to it. Usually a small dose of it is given to the patient. If they do not react, then the full dose is given. The doctor stated that at times, particularly in the filter clinic, where doctors are very busy, doctors may forget to ask the particular question but the usual practice is to ask the patient if he is allergic. The doctor also pointed out that it is very well known that in certain cases patients have reacted severely to a test dose. He explained that the test dose is just a precaution but not a full proof method. The doctor after being shown the various documents testified that the treatment prescribed fitted the diagnosis but he could not say that the doctor made the right diagnosis because he did not see the patient himself. The doctor explained that he looked after the patient after she had improved on several occasions. The doctor also stated that a test dose is not conclusive in that sometimes the patient may react to t. He also stated that it is possible that a patient who has not reacted to a test dose may react try a full dose but the chances are less.
In
cross-examination, the doctor explained that usually doctors
record all the treatment given. He conceded that the carrying
out
of a test dose before actually administering the penicillin to a
patient is a very important step and that the test dose
should be
recorded. When shown a photo-copy of an out-patient card, the
doctor stated that he p111
did not find
where a test dose was recorded. Further in cross-examination, the
doctor stated that it was an accepted approved
standard and usual
practice for doctors to take a best dose before administering
penicillin injections but that in a busy
out-patient department,
this was not possible. The foregoing
was the evidence in these proceedings. Both parties
suggested to file written
submissions. At the time of writing my judgment the only written
submissions on record were those
from the plaintiff's, advocate.
The learned principal state advocate was reminded to file his
written submissions but this
is another case where he did not do
so. I have fully
addressed my mind to the pleadings, documents and oral evidence
before me as well as the submissions on behalf
of the plaintiff.
On a consideration of the totality of the evidence, I find the
following facts to be common cause and proved.
Sometime on 27th
December, 1974 the plaintiff suffered acute tonsillitis. On the
same day, she was attended to at the out-patient
department of the
UTH by a medical Officer, namely Dr Mathews, an agent or servant
of the state. The doctor prescribed 3cc
of procaine penicillin. An
injection of 3cc procaine penicillin was administered to the
plaintiff. After the injection she
collapsed. On the same 27th
December, 1974, she was admitted at the UTH in a state of
unconsciousness suffering from cardiac
arrest (a condition akin to
temporary
heart failure). The plaintiff recovered consciousness sometime in
the afternoon of the same day. The plaintiff was
discharged from
hospital sometime in 1975 but having not recovered fully. The
plaintiff cannot walk normally. She cannot
speak normally. She
cannot go about her domestic daily duties normally. She cannot now
pursue her gainful employment as a
clerical officer with the
Ministry of Rural Development which job she was compelled to leave
sometime in December, 1975,
after being declared unfit to work by
a Medical Board. Dr Mathews who
prescribed the 3cc procaine penicillin injection or any staff from
the out-patient department of the UTH who
had anything to do with
the plaintiff has not given evidence before me. The plaintiff
adduced evidence from her husband and
brother both not doctors.
The defendant adduced evidence from two doctors from the UTH who
treated the plaintiff after her
admission. All these witnesses
were not at the out-patient department when the plaintiff was
being attended to by Dr Mathews
and when the 3cc procaine
penicillin injection was administered to the plaintiff.
Unfortunately the plaintiff herself is
not in a position to tell
us how she found herself at the out-patient department. On the
foregoing facts which are common ground the case for the plaintiff
is that her physical and/or mental abnormalities
were caused by
the negligence of Dr Mathews and another unknown member of staff
at the UTH as servants or agents of the State
in that they failed
to inquire orally whether the patient or plaintiff eras allergic
to procaine penicillin and also by failing
to do or make a test
dose so as to ascertain if the patient or plaintiff was allergic
to procaine penicillin before administering
the same. In
considering the case for the plaintiff, I am p112
reminded of the observations made by the Supreme Court in the case of Khalid Mohamed v The Attorney-General (1) when Ngulube the D.C.J. said:
Also in the case of Wilson Masauso Zulu v Avondale Housing Project Ltd. (2) Ngulube D.C.J. said:
The plaintiff
has alleged negligence against Dr Mathews and the unknown staff at
the out-patient of the U.T.H. The crux of
the plaintiff's case as
I see it is what really happened at the out-patient department
shortly before she collapsed? In the
amended statement of claim
the plaintiff has pleaded that Dr Mathews and the unknown staff
failed to ask her whether she
was allergic to procaine penicillin
and also failed to carry out a test dose. She adduced no evidence
on these issues. But
in her favour, I accept DWs 1 and 2's
evidence that the usual standard practice before administering a
procaine penicillin
injection is to ask the patient whether he or
she is allergic or/to carry out test dose. The question I ask
myself therefore
is this: Did Dr Mathews and the unknown staff at
the out-patient department fail to carry out the two bests before
administering
the 3cc procaine penicillin injection to the
plaintiff? The plaintiff has not adduced any evidence on the
point. But at this
juncture, I would like to hasten by sayings
that I have no doubt that a donor owes a duty of care to his
patients which,
when breached, he will be held liable. In his
cross-examination of the defendant's witness, counsel for the
plaintiff attempted
to show that since the medical records do not
disclose that the doctor carried out the two tests, the court must
infer that
he did not and hence he was negligent. For my part, I
would not venture to infer negligence in cases involving
professionals
where there is no direct evidence. Even accepting
that the hospital records are silent as to whether the tests were
carried
out or not, I cannot say they were not for purposes of
drawing an inference of negligence on the part of the doctor. In
arriving
at this conclusion, let it not be thought that I am
wanting any sympathy go the plaintiff. She has my greatest
sympathies
for the state she is in. The case or Whitehouse v
Jordan and another (3) was a case alleging negligence against
a medical practitioner on account of the baby being born with
brain damage. The
case went as far as the House of Lords. The
Plaintiff did not succeed. In the Court of Appeal, Lawton, L.J.,
at page 659
had this to say on the standard of proof: p113
In the instant case, the facts which are common cause are that the plaintiff was treated for acute tonsillitis. The two doctors who gave evidence on behalf of the defendant agree that the two tests usually carried out before administering penicillin depend on the condition of the patient. If the condition is serious, the tests may not be carried out. Both doctors agree that the tests are not full proof. As already stated I find it very difficult to infer negligence on the part of the doctor. In my humble opinion, it cannot be correct to make a finding of negligence against Dr Mathews and the unknown staff at the out-patient department of the University Teaching Hospital based on a speculation of as to what might have happened at the out-patient department. Thus in my judgment, the plaintiff has not proved negligence against the defendant. I have come to this conclusion with sorrow knowing as I do what anguish the plaintiff has suffered and the grave disabilities the plaintiff will have to bear until death. But I am reminded of the words of Lawton, L.J. in Whitehouse (3) case when at pages 661 to 662 he said:
For reasons
already stated the plaintiff's claim fails and it is accordingly
dismissed. On account of the condition the plaintiff
is in, I
order that each party will bear its own costs. Claim dismissed |
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