Dr Sultanova Zumrad v Kalinda & Another (Appeal 201 of 2015) [2018] ZMSC 310 (19 September 2018)

. 3 of:2Dl8 13&fi . 5 LL.. A. NT ENT UP. REME COUllT OF _z....._ .......... N HOLDEN AT LUSAKA icML Jt11USD 'TIO, ) DR .. RD &IAMBJL - QJ1 .' p Dan 1Q a _ a,m • · d 0 M M Ba-n• Co paa,y ,cum,, M .. N :a' y . JUDGM . dgmeat m:f ' be: ,o C D TO. , - NDDIA, JJOSPrTAL, B _AllD OF MAN GEMBN'I" V _ D f:IUS. CILL& KAL BA (UHJ,s.. 1'997) ZR 183 KA. LUBA 2 IND1J,ST _-. · - . GAS :S L , D 11 D · 19915 UJ97) Z' ·v MINI RY DF H 3 CAS , MOG. ES TRANSORT LTD AND MUS · I , 1IRD P - TY 195 . ALLE .574 EMC:rl -21n BDlTIOill 6& PARAGRAPH , . .. OUfi cae- l) I _n pute. Th I -,1 f! ,t)onden K$atnba Kalindra . . an antenatal patient IL Teba tre :i..·mi · t B · ho p1'la ,. -,'l as, bein1tt e..t ·e ded Io ·r - -, p@" , Ian _. was a vi s1 mng Cons . l,t t in Ob s.tetr1cs G~ na ·col gy, Ou 2 · March 2D17 he repo d , TEBA hospital in h 37 1, we:,ek o , pregnancy. complaining of abdomm,al pains. 'f]ie rau · d 1.ha s ·_ no· in aic'i"v~ labour and advi ed I 1~ ory o labQ ·ed. her t,o the . ppe lLant. r p p,elian ', m e 1 · Re . po , ,. ob - · att©n and . 'SL lea 1ng ·1 h ,sp"t· ' sl , g t in~tmcti.ons lo D h _ tha1t she should be alled 1f an tl 'u su h a bl d , , a on mg arose Appetlan t also indwated 1.0 the l " ' Respoudel'\L I hat she might have to conduct a caesarean section on her the foUowing day because the baby, who was estimated to weigh 4 .9kg, was too big. 1'hat same night. rhe I !;I R~spondf}cnt \\1ent fnht active latluur. At this time, 0\)/2 had knocked off and DW3 was tl\e nurse bn duty . By midnight, the l •L Respondenr had fuHy dilated and she was moved. onto the delivery brd. 'T'hen DW3, et1cour-agecl her to hear down (push) . The 1~, Respondent pushed until the ba'by presented its head at O 1 :00 h.ours. She cor1tihi1ed t.o push h\Jt the baby stopped moving. It was s1 L40k l>y the shoulders. A general praethioner and the midwives who were present in the rnaternity ward falJed to dis lodge the baby. DW3, as the nurse on dut;y d ecided to t all the Appellant, but llie h ospital phtone had no ah· time, 't'he nutse enckd up Using the 1 •1 Respolildea t ;s phone to reach the Appellant. The Appellant arrived a~ the hospital at CJ 1 ·40 bouPS and delivered the baby at O 1 :45 hours, Bu,t by then, ti ,e baby was dead. • Aggrieved by tbis tum of cvent.s. the 1 •• an,cii 2nd Responclants sue<l the Appellant and TEBA Hos)?ttal (13s I~• a.net 2~<1 Defendants} for ,medical negligence and causing the deaLh of their baby The AppellanL (DW 1 j denied the aUegations . She averred that she left instructions with the l ~, Respondent and the nurse on duty to call her the moment labour started but no one called until the baby got stuck .. That she left tbe l "' Respondent in tbe observation ward and did oo'l know w ho moved her to the maternity ward . TEBA Hospi;al called twu witnesses; QW2 the nurse who first attended to the l ~· R~pondent and DWS, the nurse who att,mpted to deliver tbe. l,51. Respondent. DW2 srud she lbllowcd t.he doctor<s wrirten insUUctions to administer IV fluids to help ine 1 h' Respondent and her anbem baby to rest DW3 told the Court that. she ·was not 1.e>ld to call the Appellant when the Appellant went into labour, and neither were there any wntten tnstnlctwn~ to that e1JecL '£1bat the only alert she had was that the patien~ had a histoty of precipitate lal.iour ~rhat she did not read on the file that the baby was 4. 9kg. That in any event, she was a senior midwife with 40 years' experience and bad delivered big baQies before. 'J'baL she proceeded with normal delivery and only called the doctor when she noticed a probJem. Upen considering lhe evidenc{'- that was before hi111, I l~e trial Ju(lge held that the Appellant and TEBA hospit31 were both negligent. In terms 0f liability, the learned lrial Judge held that since tile Appellant was an employee of the hospilal, albeit part tiin~. I.he hospital was vicariously liable for her acts. Ful'ther, 1bat as a ·servant. the Appellant was a1so personally liable. The learned Lrial Judge also found that DW2, the nu11se who was lnstructed to call the Appellant was negligent but according to Lhe .fudge: " .... the PlaintdJ] did not sue her in her- personal capacity but decided to stte the 21"' Defendant for the negligence of its employees and the 2nd . Defendant did not join her as Cl party. DW.2 is not a party to this action and therefore not pe rsonalty liable for r,.egligence ... The Cou.rt awarded lbe- ResponGlents a total sum of 1<50. 000.00 as damages for mental anguish and pain. 'rhe liabiHty was apporti'o,ned equally between. the AppeJJant and TEBA HosptaL tn making the award, the Judge relied on our decision in the case of h l3'7 l W>OLA CENTRAL HOSPITAL BOA. RD OF MA!'fAGEMENT V ALFRED KALUBA AND PRISCLLA }µLUBA3 in which Ngulube CJ , (aa he then was) stated that " , . . "ine now wen established principle of awarding damages for ner&/01',s shock can. and should be extended t.o cover the novel situation where the shock resulted from the negligent loss of the baby." The Appellant was not satisfied with the decision of the lower Court She has &ppealed to this Coun a dvanoing three grounds, l. 'fbe learne& tri!I . Judge erred and mJJdif4;cted bim11~ both in fact and law by ignori.bg the fact that the Appella. Dt was an employee or the 2na Defendant in t&e Court belo!l'l who c ommitted t:J1e offence if any in th4!!,co111se of hex offic;jal duties of whicb the 2 nd Defendant is Jiable, 2 . Tbe learned trial Judge erred and misdirect ed himself both ln f:aet and law by holding that the Appellant was negligent whe? 2 nd Pefendant' s tb.e evidence witnesses ~ ~arly demonstrates that the Appellllnt was not negligent, from lhe Respondents ;µ2d 3. Tbe learned t'tial Judge erred and misdirecte(i himseU by entering judgement against the A. Ppellant wi tboutt evidence warranting entry or judgment against ~er ln support of th<:! firsl ground of a ppeal , the Appellant has ru;gued that 1 he teamed trial Judge was wrong 10 holtl lun- personally Hable for tbe Joss c;if 1..he baby 'l'hat 1'EJBA Hospi taJ Is & lim.lted company wit,h a separate legal personaliLY 1,,1qule she is a part:, time .employee or the Hospital, 'rhat in I.he circumstances TEBA Hospital is vioa.riously liable for any acts lllr oll\1ssjoos done by her m the course- (;)f h~r employmenl. l1'Urt he-r, lhat she can only liable ir she undertook responsibility for be held persona1ly whatever happened 'to I.he l &, Respondent. 1'0 support he1 submission, the Appellant has relied o.o several authonties, among which is the case of INDUSTRIAL GAS~ LIMITED V WA. RAF TRANSPORT LIMITED AND MUSSAH MOGEEHAlD~ ln which this Cc,urt held thal :• "As loi:ag as the wront its commltted by llD employee i.tl tbll c ourse of his employment the general rule 1s that the emiJloyer will be vicariously liable ," This ts the correct p0si~1on of the law on vicarious liabili~y in an ordinary master/ servant re}ationship Vicarious llabili1y is anchored on the principle that the w·rong of a $ef\l,:tiJt or agent, fo1 which ~he mastc:r/pnticipal is Hable, is one Which is ~ornn:utted io tJ1e course of l!tllployrnet11 or in the course o[ his authority Accordlng to U,e learned authors of CRARLESWORTH AND P~RCY • ON WEGLJGENCE1•l1 the doQ.1.nnc ef vrcru i"ous UabiUt.y finds lts root& -ln eatly common luw. Th.cy s tRtc:- "lt oame to be established that the liabilicy of an employer for the tort of liis ecn_~yee was based. not on a fiction that be had impliedly comma.oded his employee to act. as 11.e cUct. l)ut on the ground lbat the employee bad acted within the scope of, or d1tring the co~e of, his employment .or authority." A$ rega.rd.s lia bility for empioye,es under a contract ,,f senr!ce or a con tract for service, Lord Denning in the case of CASSIDY V mi,ISTRY OF HEALTH (FAHRNI, THIRD PARTY')i opined ai; ", .. Tbis Court ls free to consider tbe quesUob on priJlciple, a.ad Utis. leads ineJJOrably to the result that, when ~ospital aut,bori~es undertake to treat a patient and themselves select a.ad appoint and employ professional men apd women w'ho are to _give the treatment:, they are responsible fur the negligence or these peysons in fsiiling to give proper treatment; -no .matt.er whether they are doctors, surgeons, n1arses, or anyone else. Once hospitaJ authorities are held responsible For the nurses and radiographe·rs, as t hey bave been in GOLD's! case (I 1942J 2 All E. R. 250), I c an see .no possible rea-soa why they sbowd not also be responsible !or the house surgeons a.ad resident medical officers O:Jl their permanent staff. Jt has been saicl. bowevez; by no less an authority Ula.11 GClddatd, l,,J , , in GOLD'st case that the liability for Doct:Qr:s on tbe penna.nent staff depends 'on wbe~r there is a contract of service, and tbat a:uiat depend on the facts of an.y particular case.• I venfure to (al(e .t different view. f lhillk it depend$ oo frbjs: Who employs t he doctor or sllJ'geon? Is it the patient or the hospital aut.borities? 1! the patient himsel! seJects and employs t he doctol' or surge9n, as in HJLLYER' s~ case, f( 1!XIOJ 2K. B.8"20) the hospital auth.oritiea are , of course, not liable for &is ~U~.nce, because be is not employed by tbem. Where, however, tlle docb>r or surgeon; be he a. consultant or not, is I 174 e?Qployed and pain, not by the patient, but by the hospital auUiorities, l am of the opinion that hospital autborit.ie.s are. liable. ·for the negligence in treating the patient. Lt d~ not depend on whether the contract under which h e was employed wa.s a ~Ont.ract: of service OT a contract for services. 1'bat is a fine distinc~on which i s .sometime-s of i mportance, but not In cases such aa the pre:sent: wtiere the tlospJtal authorities are themselves under a duty to use care m ~eating the patie.n,t, I take it to be clear Law, as well as good sense, t'.hat wb.e re .a pets on is himself under .1 duty of care, be c annot get rid of his responsibili~ by delegating the pedottnance of it to someone else no matter whether the de.lega tion be to a servant under a contract of service or to an independent contractor under a contract for -serviaes." lt Is clear from U1e above that a doctor who has been negligent may no1 be the only Defe11dant 10 a medical negligence case, The hospital that retained the doctor on its staff c~n be held vicariously liable. (o-r th,e doctor's negljgence. Hospitalis r;a:n al:so be held d irectly liable lbr their own negligence. Vioanotts liability means a party is held responsible noi for its own negU~nce: but for the negligence of anoehe1\ In the case in casu , the Appellan1 was a p~t Lime ob ste.t.l'i<' gynaecologist al. TEBA Hospi.tal rutd in lhat capaciq,. she au endC{I to UH: I I Respondent. It t'oll0\'ls, therefore, that 'l'EBA Hospital w-as vicarieusly liable fc:u: lhe acl$ ur ontisslon-s of the Appellant (if an~ ana / or its servants or agents, epm.m.itt ecl ir, the course of their duties, irrespeotivr. or wh1:U,cr ttht~ w111c~ independent contractors t.1r $ervants under a contract of service. We, therefore, find merit in the l •1 ground of appeal. The Court· below should not halTe glossed over this fimdamental principle cii law in relation r.o the Appellant . Cottiing to the second ground or appeal , it, is. not in dispute that the Appellant owed a tlut:)' of care to the 1~1 Respondent by virtue of her profession and skill. She was dischar~ng this dt.1ty on behalf of TEBA Hospital. The Court below found her to ha'1e been l"legligent because s be- did not leave any \.\ll'itten instructions fot the nurses to call her once the 1~1 Respondent went into labou r, The Appellanr., howevet, told the Court below that -she left oral ihsttuetion,s with DW2 , the A1.1rse c;,o duty that sne· should be- called In the eve nt that the patient went into labour, but these insu-uctions were 1tot communicated to DW S, the nurse who was on duty when the J"' Respondent we-nt into labour. As a 11esult, OW 3 proceeded with normaJ delivery, r~ulting in a complication called shoulder dysu,cia. This led to the death of the Resp ondents ' baby. The learned u:l.al Judge (ound 1.rult tbe frul1. J re ti,) l couimunicatc Lhc insu·uctions lo call t'hc Appellant co11s1.1 ruted negligence. He s tated.- "The uegUgent. act was 1l res.uh. of a chain of events that preveoud the Appellant from e1tercising her e:!tpert medical skills which would ba'. Ve, saved the baby's li!e ... the Appellant told OW 2 to call her In the event that normal labour started, but she (the Appellant) did not record those instructlons ... tbe omission by the Appellant and TEBA to record or pass on -critical information to DW 3 put the baby at risk '!!11th raw consequ.ences." The Appellan1 has, argued on this ground of appeal. that the lea.rJ1ed trial Judge erred by holding thal she was neg1igen1.. 1'bat both the .oral and documentary evfdence on record demonstrates that the Appellanl was not negligent, That it was in fact DW 2 and DW S who were negligent und t'bat DW S even went a.head to deliver the: baby tlQrmally without following ll'le Appellant's specific »1st.ru ctions t'O be- called 011cc the labotlr started . 4'h at in the circumstances, lt is TEBA Mosp!tal which should have be.en held Hable for the atts of DW2 .and DW 3. Admittedly. the ev.idence on record shows that when she was called. the. Appellant managed to dislodge tbc baby quickly, She arrived at the h<1spital a t O 1.40 hours and dislodged the baby by 01 .45 hours, but by th.is tim<1 1 the baby had already ctiet:l front su·anguJation. This evidence is consistent wilh i:.hc testimonies of ail l'he witnesses as well as the statements made to the Medical Council of Zambia We ,agree wid, the observat!on by the !earned trial J ~dge on page 26 of the record of appeal, thnt th~ 1 M . Respondent suffered al the h arid-s of poor 'fctdmimstrciti11e protocols and procedure of recording and httnding over of t,ifonnation between shifts and between doctors and nurses at the hospit.al." According w Michael Jones. in his- book MEDICAL "A hospital which offers obste.t:ric services :has a duty fo p.rovide an adequate system for seeming attendance, withi n reasonable time . of doctors with sufficient expertise to deal with an emergency in the course of detive'Jy.''' Tbe same author also rjgh\futly observed lihat "A breakdown in. essential comnrunication between ~lthcare professionals with ~onsibtlity for the patient aan have ~ngero:us consequences for the parties"fljJ, Such. was the situ ation in this case.. 1n fact, the evidence of the 1~1 Respondent ru:id OW 3 was that the hospital phone had no 61.irticn<;. It is appru>ent that the hospital lacked an effecti\1'¢ commimication system to summon specia. Jist L F.r, I37 on record nd mann1 tha,t n, __ Hg tl>C' oan be .attribu rl hand!' d h.e patfenL W B n:•,e th E a . riion hat sh V' 11 h ,t CC' pl · -ppro , - d and current pmctic . Sh - was, able to dislodge · e baby Jbi Q arrival at the ospitaL She opined that had she e n called arlier_ he maintain. , 1 hat he did tell the inur to call h r e m,ome:nt the patient ' nt in a htbmJJ was big. Tl , f 5 rid ' inti n t as ed 1 - wa c:1 DW t , Id the:: lower Goun that before kn nlg ft she docun1,e ted ha, · had hap: encd 1t> he not o r to, her cuUeagucj I t is clear that in thn; l and o . er s Qtni -ted e' th lJlS pp n J1 I ur ' e I ,· uii;k stops a1 DW . smc s,he t1te f ,f! 1 · h.at had happened and handed o er- 'lo her coUea u - I. a ncum ent -r ions t.h · doc or whetlt , oral o t We ha.ve co SJ e d -· h -r h.e · pp 1 ia11 oould have been a oinl -ortfeasor this r age · td1 , g o BLACK LA: __ _ or mare , ·on do r.s h tnned a defe dat s in ' e ame 1.a • u1 . · asors re ' J.n ~V - d evet l hall ror LhE! d mage. n1eanin, - lh = L an of it m can be re pot .s b to pa __ v tht" en tire' anmu I n 1 ,n lhe J 1i ... ca·se ,ppellant c anno be- on ·d,e _ J to _;ia 1e:e rU asor with the hospital as er ac - 0, did n t1 , f · h ba l I r po 1 l o wa tl1at l ~d sh~ e_, th ai;s, h 1 m rd ' - 'id ' Dt . :uJated-i it ~e ds. - l cl~ d and "ndeeti _ h rop d "'l''he- lea -ed trial udp e _ ,_ c1 a.a _- nds,dire led: himse._ JUdgm.e.pt .ap.inst lbe App of J• , -,_e.nt 'by Ente· , · ant witb. G,u- evi1dene . wmTaD -. -!C D , e-r tt 13 0 Tbis . ru _nd 1s vawie d dote.:s not rmse to th · JUdJ5men· appealed a ains -. RULE S8(2) DF THE BU "~lll1J$;1 'he Memora11dum of ppeal 'sha,11' · i,oiats of _ eged' m -,."II y decldeiL • In at h · third I fi -: 1a l th Ap,peJ lian I I hi tin · _ f her 1 OT the not ad anc \'" argun· en' dist.in . -. 1n -. uppott of , h ground He ,impJ · that he d . p · s th su 1 m 'ssions i.n suppo.rt of ·e fi st rour d r appeal. The h:ird ground. is therefoif , app,e-a.1. rt 1,s aUo ' ed . l · R, 1sp nd _ n . s t:~ntftV ·we order m rlt in 1h TEBA Ho pi i, o t• e , · ath of Ure :larnage oi ~ -o . I! - m:-d rec. I b h In er . r " · h in tere :t Costs sJ.l : · , b ~ 1 the .p- ellant a · again t E:BA u ·• to be 'L~ ·d in d .fau' f agre m nl , • \ 4---=ie.....- ' V .. ...-- J. C. 'Mambflima CHIEF JUSTICE ' , SUPREME COURT JUDGE od A. , ~ -c ~~Kaoma SUPREME COURT JUDGE