JOO, JO & MMO v Praxedes P Mandu Okutoyi, Chimmy Omamo Olende & Kenya Hospital Association [2019] KEHC 10919 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

(Coram: Odunga, J)

CIVIL CASE NO. 25 OF 2008

JOO……………..…..……………...………………..……..1ST PLAINTIFF

DR JO……………………...…….....…………...…….…..2ND PLAINTIFF

DR MMO…………………….…….....……….……..……3RD PLAINTIFF

VERSUS

DR PRAXEDES P MANDU OKUTOYI……….………1ST DEFENDANT

DR CHIMMY OMAMO OLENDE…………….…...…2ND DEFENDANT

KENYA HOSPITAL ASSOCIATION…………..……..3RD DEFENDANT

JUDGEMENT

The Parties

1. The 1st Plaintiff in his suit, JOO, was at the material time a student at [particulars withheld] School, Nairobi and this suit was brought on his behalf by his father, Dr JO, a medical practitioner residing and working at Nairobi who is also the 2nd Plaintiff herein. The 3rd Plaintiff, Dr MMO, is the mother of the 1st Plaintiff and is a Chiropractor residing and working at Nairobi.

2. The 1st Defendant, Dr Praxedes P Mandu Okutoyi (hereinafter referred to as “the Anaesthetist”), is described in the Plaint as female adult residing and working at Nairobi who was at the material times a medical practitioner practicing and/or carrying on practice as a Paediatric Anaesthetist at Nairobi Hospital. It was pleaded that the 1st Defendant held herself out to be an experienced, skilled and competent Paediatric Anaesthetist and agreed to provide and render to the 1st Plaintiff anaesthesiological services.

3. The 2nd Defendant, Dr Chimmy Omamo Olende (hereinafter referred to as “the Surgeon”), is also described as a female adult residing and working at Nairobi, and was at the material times a medical practitioner practicing and/or carrying on practice as an Ear, Nose and Throat surgeon at Nairobi Hospital. It was pleaded that the 2nd Defendant held herself out to be an experienced, skilled and competent Ear, Nose and Throat surgeon and agreed to provide and render surgical services to the 1st Plaintiff.

4. The 3rd Defendant herein, Kenya Hospital Association, is described as a company limited by guarantee and incorporated under the Companies Act Chapter 486 of the Laws of Kenya which owns, manages and operates a private medical institution under the same name and style of Nairobi Hospital (hereinafter referred to as “the Hospital”), situate in Nairobi.

The Plaintiffs’ Pleadings

5. According to the plaint herein, on 8th February, 2005 while playing basketball at [particulars withheld]School where he was a Form Four student, the 1st Plaintiff, who was in good health he sustained a nasal fracture and was taken to Nairobi Hospital on 11th February, 2005 by his father, the 2nd Plaintiff at 9. 00 a.m. for a surgery scheduled for 10. 00 a.m. to rectify the nasal fracture. It was pleaded that the 1st Plaintiff was admitted into the Day Care Surgery Unit of the Hospital for the scheduled surgery where the 1st Defendant was the anaesthetist, the 2nd Defendant the surgeon and assisted by other support staff of the Hospital.

6. According to the Plaintiffs, arising from the Defendants’ careless, negligent and/or reckless execution of that surgery for his nasal fracture reduction the 1st Plaintiff in the process sustained hypoxic brain damage and which, according to the 1st and 2nd Defendants, they only noticed when the 1st plaintiff’s head was being undraped after the completion of the nasal fracture reduction operation and when the 1st Defendant shouted that the 1st Plaintiff’s lips were blue. As a result of the 1st Plaintiff’s health being in near fatal condition with no pulse, the 1st Plaintiff was subjected to cardio-pulmonary resuscitation and upon restoration of his heartbeat was admitted to the Intensive Care Unit and remained in the same hospital undergoing treatment until 1st April, 2005 when he was discharged and continued to received treatment thereafter from home and various health institutions.

7. According to the Plaint, the negligence of the Defendants was constituted by the following facts:

a. 1st and 2nd Defendants’ late arrival for the scheduled surgery and failure to properly and adequately prepare for the same thereby endangering the 1st Plaintiff’s life.

b. The 1st Defendant’s failure to carry out the complete history and physical examination of the 1st Plaintiff and/or evaluate the same before rendering an aesthetical treatment.

c. The 1st Defendant’s failure to make appropriate pre-operation evaluation of the 1st plaintiff thereby leading to the administration of inappropriate and dangerous anaesthesia treatment thereby endangering the 1st plaintiff’s life.

d. The 1st Defendant’s failure to observe proper and reasonable intra-operative care on the 1st plaintiff by not monitoring the 1st Plaintiff’s vital clinical signs and the equipment in the theatre and thereby endangering the 1st plaintiff’s life.

e. The 1st Defendant’s failure to exhibit reasonable care and skill in the treatment of the 1st Plaintiff prior to, during and after the administration of anaesthesia and the surgery.

f. The 2nd Defendant’s failure to carry out complete history and physical examination of the 1st Plaintiff and therefore led to inappropriate treatment and injury to the 1st Plaintiff.

g. The 2nd Defendant’s failure to take adequate steps to ensure that the treatment of the 1st plaintiff was carried out in accordance with the known medical standards.

h. The 2nd Defendant’s failure to adequately attend to the 1st Plaintiff in time prior to and during the surgery and thereby contributing to the injury to the health of the 1st Plaintiff.

i. The 3rd Defendant’s failure to provide appropriate functional equipment in the theatre.

j. The 3rd Defendant’s retaining and holding out professional and non-professional personnel who could not discharge their duties as required of the medical institution.

k. The 3rd Defendant’s holding out to the public a medical institution with inadequate systems of work.

l. Failing to monitor the 1st Plaintiff during and after administration of the anaesthesia and during the surgery.

m. Failing to monitor and observe the patient at commencement, during and at conclusion of the surgery.

n. Failing to be alert during the entire process of administration of anaesthesia and surgery.

o. Failing to respond to the electronic monitoring equipment that were in the theatre and with alarm mechanisms to warn when the 1st Plaintiff was slipping into danger as happened to the 1st Plaintiff.

p. Failing to notice whether or not the electronic monitoring equipment in the theatre were working prior to and/or during the commencement of the administration of anaesthesia and surgery.

q. Failing to undertake appropriate physical checking of the pulse of the 1st Plaintiff during the administration of anaesthesia and surgery.

r. Failing to undertake an appropriate evaluation of the 1st Plaintiff and the history and tests undertaken to determine the safe anaesthesia that ought to have been administered.

s. Administering inappropriate anaesthesia to the 1st Plaintiff.

t. Failure to take proper care of the Plaintiff’s health and thereby occasioned him severe and permanently disabling injuries.

u. Failure to use diligence, care, knowledge, skill and caution in the treatment of the 1st Plaintiff prior to, during and after the operation.

v. Exhibiting recklessness, complete disregard of any duty of care to the 1st Plaintiff’s health while undertaking the treatment on 11/02/2005 and afterwards.

8. The 1st Plaintiff further pleaded that in the foregoing premises pleaded the facts are obvious and speak for themselves and impel invocation of the doctrine of Res Ipsa Loquitaras to the Defendants’ negligence.

9. The Plaintiffs averred that the 1st and 2nd Defendants were at all material times to this suit employees, servants, professionals and/or agents of the 3rd Defendant and that the 3rd Defendant is liable for the acts, omissions and negligence of the 1st and 2nd Defendants and other support staff of the said 3rd Defendant.

10. It was reiterated by the Plaintiffs that the above matters were caused solely by the 1st, 2nd and 3rd Defendants’ breach of contract and/or their negligence in the care and treatment of the 1st Plaintiff, particulars of which were set out as follows:

a) The 1st and 2nd Defendants failed to exercise reasonable care and skill in the provision of professional care and treatment in respect of special skills which they had held themselves out to possess.

b) The 3rd Defendant failed to exercise reasonable care and diligence in the provision of hospital equipment, care and services which they held out to possess as a hospital.

11. The Plaintiffs’ case was that that by reasons of the aforesaid negligence and/or carelessness in his management, treatment (mistreatment) and care by the Defendants, the 1st Plaintiff suffered pain and serious permanent injuries, loss and damage in that he sustained hypoxic brain damage (brain damage due to lack of oxygen) and which has led to;

i. Lack of short term memory (the 1st Plaintiff cannot learn and retain information);

ii. Disorientation (the 1st Plaintiff cannot remember time, date place);

iii. Loss of cognitive abilities (the 1st Plaintiff cannot distinguish society right or wrong);

iv. Psychiatric disorders (the 1st Plaintiff suffers depression, loss of concentration and occasional violent disposition);

v. Compulsive Obsessive Disorder (the 1st Plaintiff does the same things repeatedly);

vi. Poor co-ordination of movements (the 1st Plaintiff cannot write, play basketball, swim or sing);

vii. Loss of Biological clock rhythm (the 1st Plaintiff has no sense of when night ends and day starts i.e. waking up at 3. 00 a.m. and dresses for the day and unable to go back to sleep).

12. The particulars of special damages occasioned by the injury to the 1st Plaintiff were on the other hand set out as follows:

a) To payment to Nairobi Hospital……………..…….. Kshs. 100,000. 00.

b) To medical expenses to medicine, consultancies, physiotherapy, laboratories, admission at Chiromo lane…………Kshs. 181,580. 00.

c) To Pulse Oximeter………………………………….…….Kshs. 92,000. 00.

d) To Oxygen Generator………………………….………… Kshs. 140,000. 00

e) Legal costs to representation to pursue a complaint against the Defendants before the Medical Practitioners and Dentists Board and the High Court proceedings arising there from… . Kshs. 200,000. 00

f) Costs of procuring the ruling of the Medical Practitioners and Dentists Board……………………. Kshs. 7,500. 00

g) Employing a full time helper to constantly be with the 1st Plaintiff at Kshs. 10,000/= per month from 1st March 2005 to 31/01/2008……………………………………………….. Kshs. 350,000. 00

Total Kshs. 1,071,080. 00

13. The Plaintiffs pleaded that the 1st Plaintiff will continue to require a full time helper to constantly be with him to look after him. In their view, though at the time of filling this suit the amount going towards this head was Kshs. 10,000/=, they urged the Court to make a finding for the future remainder of the Plaintiff’s life. It was further pleaded that the 1st Plaintiff will require future medical care and treatment and this should be determined by this Court upon the evidence of medical experts.

14. It was reiterated that the 1st Plaintiff when he went for the scheduled treatment at the 3rd Defendant’s hospital he was in good health except for the nasal fracture, was a form four student at [particulars withheld]School with a good academic track record and was active in various sports including swimming, basketball and music. However, due to the injuries sustained arising from the negligent, careless and/or reckless treatment and care and breach of contract afore-pleaded he suffered hypoxic brain damage rendering him mentally impaired and so that he cannot do any of the things he was doing as at 11th February, 2005 before the operation and had to drop out of school. As a result, the 1st plaintiff’s good health and high and bright prospects in his education, sports and arts were extinguished and he lost all expectations of leading a normal and independent life where he fends for himself and enjoys the usual amenities of life. The 1st plaintiff thus claimed damages for loss of wages and/or future earning capacity and/or of expected future earnings as well as loss of amenities.

15. On their part the 2nd and 3rd Plaintiffs stated that on the material day of 11th February, 2005 they were confident that their son who was going for a minor day care operation and wearing his school uniform keen to attend his afternoon school would have the nasal fracture rectified without any incident. However they suffered grievous shock and trauma when on that afternoon they were confronted with the crushing news that their son was in the Intensive Care Unit. To them, their shock, anxiety and troubles were most aggravated when the Defendants were not forthcoming in explaining to them candidly what went wrong in the treatment of the 1st Plaintiff that led to his having to be admitted at the Intensive Care Unit.

16. It was pleaded that the 2nd and 3rd Plaintiffs were in the premises of the Defendants’ want of candidness, failure to fully disclose all the material circumstances that led to the 1st Plaintiff suffering hypoxic brain damage compelled to embark on the initiative to get to the root of the matter and including taking up the case with the Medical Practitioners and Dentists Board. On the other hand the 3rd Defendant did, in the unfolding events surrounding the 1st Plaintiff’s medical disaster, demand that the 2nd and 3rd Plaintiffs pay deposits to the Hospital if the 1st Plaintiff was to continue being attended to and refused to release the 1st Plaintiff from its hospital after the doctors had discharged him until a bill they had generated in the sum of Kshs. 1,056,490. 26 and which had discounted Kshs. 100,000 deposited by the 2nd Plaintiff was paid.

17. It was the 2nd and 3rd Plaintiffs’ position that all the medical costs that were occasioned by the negligent and/or reckless treatment of the 1st Plaintiff over and above the rectification of the nasal fracture must be borne by the Defendants and that the 3rd Defendant ought not to profit from its negligence, recklessness and/or breach of contract in seeking to claim Kshs. 1,056,490. 00 plus the deposit paid from the Plaintiffs. The Court was therefore urged to declare the acknowledgement of debt/guarantee signed by him dated 2nd April, 2005 to pay the 3rd Defendant’s hospital costs of Kshs. 1,056,490. 26 before the 3rd Defendant could release the 1st Plaintiff as null and void for want of consideration and having been procured in breach of the law and by duress and undue influence and coercion particulars of which were set out as follows:

a) Having botched up the nasal fracture rectification surgery on the 1st Plaintiff and the 3rd Defendant and caused the 1st Plaintiff brain damage, the 3rd Defendant insisted they will not release the 1st Plaintiff unless the hospital bill occasioned by the medical care subsequent to the hypoxic brain damage was paid by the 2nd Plaintiff.

b) While the 2nd and 3rd Plaintiffs were traumatized with the events surrounding the 1st Plaintiff’s medical disaster at the 3rd Defendant’s hospital, the 3rd Defendant adamantly refused to release the 1st Plaintiff unless the hospital bill was paid or an acknowledgement of Debt/Guarantee was given.

c) Threatening the 2nd Plaintiff that they would cease to take care of the 1st Plaintiff unless he took responsibility for the hospital expenses.

d) Persistently pestering, demanding, telephoning, and writing notes to the 2nd Defendant to pay the hospital bill while the 1st Plaintiff was in hospital.

e) Detaining the 1st Plaintiff in hospital and refusing to release him until the claimed hospital charges were paid or a guarantee given by the 2nd Defendant and even after the 1st Plaintiff had been discharged.

18. As a result, the 2nd Defendant did under duress and coercion sign an undertaking to pay that bill before the 3rd Defendant could discharge the 1st plaintiff.

19. The Plaintiffs pleaded that as a result of the foregoing, the 2nd and 3rd plaintiffs and their families have since been traumatized and tormented and have had their whole family life completely shattered and thereby claimed damages for grievous shock.

20. It was pleaded that despite demand being made and notice of intention to sue having been given, the defendants refused, failed and/or neglected to admit liability and compensate the Plaintiffs.

21. In the final analysis the Plaintiffs prayed for judgment against the Defendants jointly and severally for:

a) The 1st Plaintiff for general damages for pain, suffering and loss of amenities and future pain and suffering.

b) The 1st Plaintiff for damages for future requirements as pleaded in the Plaint in paragraph 18.

c) The 1st plaintiff for damages for loss of expectation of future earnings or earning capacity.

d) The 1st Plaintiff for special damages of Kshs. 1,071,080. 00

e) The 2nd and 3rd Plaintiffs for grievous shock.

f) A declaration that the acknowledgement of Debt/Guarantee dated 02/04/2005 extracted by the 3rd Defendant from the 2nd Plaintiff for him to pay Kshs. 1,056,490. 26 being hospital costs occasioned by the medical disaster visited on the 1st Plaintiff is null and void and unenforceable as against the 2nd Plaintiff.

g) Costs and Interest on (a) to (g) above.

h) Any other relief that this Honourable Court may deem fit to grant.

The Plaintiffs’ Case

PW1’s Evidence

22. The Plaintiffs called, as PW1,Dr JNO,the 2nd Plaintiff herein, a consultant radiologist duly registered by the Medical Practitioners and Dentists Board, specialized in Medical imaging also referred to as Diagnostic Radiology.

23. The said witness adopted his witness statement as part of his evidence in chief in which he averred that JOO, the 1st Plaintiff in this matter, is his son while Dr MMO, the 3rd Plaintiff herein is my wife. He further disclosed that he was appointed by the High Court on 7th February 2008 in High Court Civil Suit No. 22 of 2008 (O.S.) - In the Matter of JOO- as the next friend and guardian of the 1st plaintiff.

24. According to him, the 1st Plaintiff was born on 13th December 1987. In the year 2005, he was a Form Four student at [particulars withheld]School Nairobi during which time he was a bubbly 17 year boy with a good academic track record and active in various sports where he was winning prizes at competitions including swimming, basketball and music. The 1st Plaintiff, according to PW1, was further known to have been a smart, intelligent, social and jovial boy who was popular with his peers and excelled in both co-curriculum and academic activities at his school. He also participated in drama, and played soccer.

25. However, on or about the 8th February 2005, the 1st plaintiff sustained a nasal fracture while playing basketball at [particulars withheld]School in Nairobi. Save for the nasal fracture, he was at the material time in perfect physical and mental health and he continued to live his life normally both at home and school as a fit and very talented boy. PW1 however, contacted Dr Chimmy Omamo Olende, the 2nd Defendant herein to reduce his nasal fracture, a procedure was scheduled for 11th February 2005 at Nairobi Hospital whereat he was to undergo a minor surgery to reduce his nasal fracture under general anaesthesia which procedure was scheduled for 10 am at the said Nairobi Hospital, the surgeon being the said 2nd Defendant herein while the anaesthetist was meant to be one Dr Moniz. They were to be assisted by the staff at Nairobi Hospital theatre.

26. PW1 averred that on the said 11th February 2005, he took the 1st Plaintiff to Nairobi Hospital for the said procedure arriving at 9am well in advance of the appointed theatre time of 10am. The 1st Plaintiff was scheduled to undergo the minor nasal surgery at Day Care Surgery Unit of the 3rd Defendant’s Hospital and be in school for his afternoon classes and indeed, he went to the hospital in his school uniform as he was to be dropped at school after the minor operation. He reiterated that he had prior to the 11th February 2005 arranged with the 2nd defendant being an Ear, Nose and Throat Surgeon to undertake the scheduled minor surgery on the 1st Plaintiff and one Dr Moniz was the agreed anaesthetists in the said surgery.

27. Upon their arrival at the hospital, the 1st plaintiff was admitted at the day care surgery unit for the scheduled surgery and accordingly completed the entire formalities attendant to the said surgery. However, by 10am, neither the surgeon nor the anaesthetist had arrived at the hospital. The former however arrived later in a hurry at 10. 30am and she informed PW1 that Dr Moniz was not available as the anaesthetist for the nasal operation of the 1st plaintiff and that she proposed to use the 1st defendant for that purpose, a proposal which PW1 did not object to so long as the surgeon was comfortable with the person she proposed to step in place of Dr Moniz. After the 1st plaintiff had been taken in for the day care surgery, PW1 left the Hospital for his offices at Hurlingham and I was to return and pick him after the scheduled operation.

28. At around 12. 30pm, PW1 received an urgent telephone call from Nairobi Hospital to report to the Day Care Surgery Unit and pursuant thereto, he immediately left his office for the hospital and when he arrived at the hospital, he was informed by the 2nd defendant that the 1st plaintiff had a problem and had been taken to the Intensive Care Unit (ICU). Upon inquiring what led to the turn of events, he was informed by the said 2nd defendant that after the operation while de-gloving she was informed by the 1st defendant that the 1st plaintiff had turned “blue” at which point resuscitation was done on him with the assistance of one Dr Ng’ang’a to restart the heart which had stopped. This information devastated PW1 because he had been assured that the minor surgery was supposed to be a 20-30minutes day surgery procedure and the 1st Plaintiff was intending to go back to school in the afternoon to continue with his studies being a form four candidate at [particulars withheld]School Nairobi.

29. Upon hearing the news, PW1 immediately proceeded to the Intensive Care Unit of Nairobi Hospital and found the 1st plaintiff on a respirator and unconscious. He then telephoned my wife (the 3rd plaintiff) and informed her about what had happened and she immediately went to the hospital and they were informed that the 1st plaintiff would remain under heavy sedation till Sunday 13th February 2005 at 5pm when the paralysis and sedation would be reversed to make him wake up. When this date and time arrived, PW1 attended the intensive care Unit in the company of one Dr Charles Chunge and one Dr (Mrs.) Thanga both of whom had gone to see the 1st plaintiff. However, none of the doctors who had done the operation on the 1st plaintiff was present. When PW1 inquired in the presence of the said 2 doctors, he was informed that the 1st defendant had passed through the intensive care unit earlier at 3 pm and that she had given instructions to the intensive care unit doctor, Dr Thanga, to do the reversal which she had allegedly started and that somewhat in the process the 1st plaintiff could not breathe as expected. The nurses alerted Dr Thanga who went to share her concerns with PW1 and the 3rd plaintiff regarding the dose of sedation which was at 3miligrams per hour. Though she needed to be advised on how to reduce it and by how much, a process that required an anaesthetist/neurologist, none was around and the 1st defendant could neither be reached via the hospital operator nor via her mobile phone. PW1, then got one Dr Kwasa who was standing in for one Prof. Amayo and he advised that the sedation be reduced to half dose and this was done and the 1st plaintiff thereafter started breathing.

30. According to PW1, on Monday 14th February 2005 in the morning, he together with the 3rd Plaintiff met Prof. Amayo and Dr Moniz at the 1st plaintiff’s bedside whereat it was suggested that the 1st plaintiff be moved to the high dependency unit as it was hoped that he would improve. While still at the ICU, PW1 was called at the sisters’ desk and informed that the 1st defendant had called and that she wanted to talk to me on phone. Upon proceeding there, he for the first time talked to the 1st Defendant since the date of the 1st plaintiff’s minor nasal surgery and he expressed to her his disappointment with her acts and/or omissions of inter alia, leaving them in the dark in the matter notwithstanding that they were the parents to her patient and switching off her mobile phones when they needed her most. The 1st Defendant then told him that she had done her best and hang up the phone on him, a conduct PW1 found very rude and callous.

31. The 1st plaintiff, according to PW1 remained at the Intensive Care Unit from 11th February 2005 to about the 14th February 2005 and thereafter was at the High dependency Unit and the general Ward up to his discharge on 1st April 2005.

32. According to PW1, whilst under the care, treatment and management of the 1st defendant, 2nd defendant and support staff of the 3rd defendant for a minor surgery on 11th February 2011, the 1st plaintiff did suffer and sustain hypoxic brain damage which condition has rendered him mentally impaired and with permanent debilitating disabilities and doctors namely Prof. E.O. Amayo and Dr A.N. Nguithi examined the 1st plaintiff and prepared reports to the said effect. Arising from the hypoxic brain damage suffered by the 1st plaintiff, he dropped out of school and since the medical incident become a special young man who initially was supported in all his physiological needs and to date has had to be under guard and watch by somebody at all times otherwise he would wander off or go somewhere and have no recollection how to get back home or get in touch with the family.

33. It was PW1’s case that he felt aggrieved and arising from want of candidness, failure to disclose all material circumstances on the part of the 1st and 2nd defendants and the support staff of the 3rd defendant who were in the 3rd defendant’s day care surgery unit on 11th February 2005 when the 1st plaintiff ended up suffering hypoxic brain damage whilst undergoing a minor nasal surgery, PW1’s family launched a complaint with the 3rd defendant and the 3rd defendant’s Standard Audits and Ethics Committee (SAEC) did undertake an enquiry into the circumstances under which the 1st plaintiff suffered hypoxic brain damage while undergoing a minor nasal fracture reduction surgery and the said SAEC prepared its Standards Audit and Ethics Committee Report (SAEC) Report.

34. Further, to and contemporaneous with the above complaint to the 3rd defendant, PW1 also launched a complaint with the Medical Practitioners and Dentists Board (the Board) through the Preliminary Inquiry Committee (PIC) proceedings as stipulated under the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedures) Rules who handled the complaint and subsequently referred the complaint to the Board which conducted its proceedings and made its findings thereon.

35. According to PW1, although he requested the CEO of Nairobi Hospital to investigate what happened to the 1st Plaintiff, investigation which was done by the Standards Audit and Ethics Committee of Nairobi Hospital, the CEO refused to show them the report for what he termed legal reasons. Instead the 2nd and 3rd plaintiffs were called and given a verbal explanation before a SAEC committee on 21st September 2005 and later issued with a summary of his conclusion for which he blamed the medical officers concerned for the hypoxic brain damage that occurred to the 1st Plaintiff despite having given them numerous promises that he would release the report to them. It was PW1’s statement that the investigation done by the SAEC is actually the one that interviewed people who were in theatre when the incident occurred and it went on for a period of about four months with interviews and re-interviews just to ascertain the truth of what happened. However, the first time PW1 set his eyes on the report was on the second day of the Medical Board proceedings, after he had already finished giving his evidence the day before without the benefit of what was on this report. As a result of this some of the charges for the respondents were dropped when in reality if this report had been availed to him things would have been different since the SAEC report reprimanded all involved as concerns what happened to the 1st Plaintiff. In the said report, the anaesthetist, the 1st Defendant was given six months suspension, the surgeon was reprimanded for not playing the overall team leader role that was expected of her, the theatre technician was reprimanded for not being responsible and was to be observed closely for six months, the scrub nurse was reprimanded for not being alert of what happens around her and should be given a warning letter. The CEO of Nairobi Hospital was asked to retrieve the memory of the monitoring machine that the 1st Plaintiff was on but by the time of the Medical board proceedings he had not done so nine months down the line.

36. PW1 maintained that the two monitors used on the 1st Plaintiff failed to alert the doctors and staff of cardiac arrest that the 1st Plaintiff had. According to him, a monitor simply put is an alarm system just as the alarms used in the cars and used in houses which will alarm if they are working only when there is intrusion. In the case of a medical monitor it will alarm when anything goes out of the normal range such as a heart stopping beating. In his view, the reasoning that the monitors could not be faulty because they were used on other patients before and after the 1st plaintiff was erroneous because if the other patients didn’t have any problem like cardiac arrest etc. they would not have to alarm and one would have thought they were in working condition. It was therefore not a surprise to PW1 that only one out of the five or so people in theatre claimed to have heard an alarm yet they were all around a patient on a table measuring about 3 x 7 feet. To him, this must have been the reason why no monitor memory was retrieved for fear of what it might show.

37. It was PW1’s statement that as parents of the 1st Plaintiff they were tremendously harassed by Nairobi Hospital management. Though the CEO had assured him that since the SAEC was still investigating the case of who was responsible for the 1st plaintiff’s condition he should not worry about payment of Hospital bills, the accounts department kept on sending PW1 demand letters to pay and on the day the 1st Plaintiff was discharged on first of April 2005, PW1 was shocked when the CEO insisted that he would detain the 1st Plaintiff unless PW1 paid a bill of about one million shillings. When PW1 protested he said all had changed because he felt that PW1 was trying to sue Nairobi Hospital when he received a letter from the medical board that contained PW1’s complaints. Since PW1 did not have the money at that time being a weekend, he was given the alternative of signing a debt declaration form, an action which the board and in its ruling at page 10 described in the words that: “The manner of the demand for huge hospital bills was most unprofessional” and added that “The institution appears to have a hands of approach and distances itself when things go wrong”.

38. In his oral evidence, PW1 reiterated the foregoing and testified that he was informed by the 2nd Defendant’s secretary that the anaesthetist was to be Dr Muniz whom he knew very well as a senior anaesthetist and he was comfortable with him.

39. After driving the 1st Plaintiff to the Hospital, on 11th February, 2005, tests were carried out on the 1st Plaintiff such as the taking of his pulse, Blood pressure and Temperature while the 2nd Plaintiff was given a questionnaire to fill indicating past history as well as a consent form which is normal in surgical procedures.

40. According to PW1, when at 10. 30 the 2nd Defendant arrived and informed him that since Dr Muniz was unavailable she had made arrangements for an alternative in Dr Okutoyi, the 1st Defendant, PW1 inquired from the 2nd Defendant whether she was comfortable with the 1st Defendant as an anaesthetist. According to the 2nd Plaintiff, his inquiry was informed by his medical training that as a doctor, there were certain preparations required between an anaesthetist and surgeon. These entailed adequate time for the anaesthetist to see the patient they were dealing with. He however left the matter to the 2nd Defendant and proceeded to his clinic in Hurlingham since they were already late. When he was called at about 12. 30 pm PW1 found the 2nd Defendant with Dr Nganga whom he was told at the Day Surgery Reception Desk had been called to assist. He also found a lady whom he came to learn was the 1st Defendant, Dr Okutoyi. The 2nd Defendant, according to him, informed him that at the end of the procedure when she was going to remove the gloves, she was informed by the 1st Defendant that the 1st Plaintiff was blue and had no pulse which meant that the heart had stopped. The 2nd Defendant informed him that upon going back, she found that the 1st Plaintiff had sinuses and in this being Central Sinuses which, according to the 2nd Plaintiff, occurs when the blood goes into inner tissues and the blood on the surface does not get enough oxygen and turns blue. This he contradistinguished from Peripheral Sinuses which according to him is not a serious matter. It was his evidence that for a patient to get central sinuses normally he would have been deprived of oxygen for 5-10 minutes.

41. Upon seeing this disturbing report, PW1 sought to know from the 2nd Defendant whether the 1st Plaintiff had been hooked to the monitors and the 2nd Defendant answered in the affirmative. The 2nd Defendant explained to him that there were 2 monitors, the pulse oximeter and the ECG (Electro Cardiograph) monitor. According to PW1, a patient in general anaesthesia cannot respond hence it is the monitors that show the pulse rate and oxygen concentration. In his evidence, the normal oxygen concentration should be over 90% and that the readings from both are then shown on the screen. It was therefore PW1’s evidence that he was disturbed because the monitors are supposed to detect any problem before the end of the surgery.

42. It was further his evidence that since at the time the 1st Plaintiff went for the surgery he was walking and had heartbeat yet when they were finishing the operation, he had no heartbeat, he wondered what the theatre staff were doing during interval when the 1st Plaintiff had heartbeat and when he did not have it if the monitors were on. To him, this problem could have been discovered since this was a short operation.

43. According to PW1 he was unhappy with what had transpired and protested. When he went into the ICU he found the 1st Plaintiff on respiration. According to him, a respirator is a machine used to breath for a patient who is paralysed and who has been put in induced coma and it mechanically pushes oxygen into the lungs and extracts carbon dioxide. After he called the 3rd plaintiff, he was told to fill in an admission form as they were informed that the 1st Plaintiff would remain in sedation until 13th February when sedation would be reversed so that it would be seen how he was progressing. It was his testimony that when a patient gets that kind of injury normally they are put in induced coma to help brain heal and are given drugs to sedate them. However, to have effective sedation you inject them with drugs that paralyse them to save the energy and since the diaphragm is paralysed they are put on respirator.

44. The 2nd Plaintiff asserted that the 1st Plaintiff went to the hospital on understanding that he was to go for a simple Day Surgery and go home and not to stay in hospital and the charges were to be between Kshs 8,000/= to Kshs 10,000/=. However that afternoon he was faced with a completely different issue under the circumstances of filling in an admissions form for him and he was asked to put in down payment of Kshs 300,000/= which he did not have and gave Kshs 100,000/= as down payment.

45. Referred to the clinical notes, the 2nd Plaintiff confirmed that the 1st Plaintiff had suffered cardiac arrest and that there was a need to resuscitate. It was also confirmed that the 1st Plaintiff had asphyxia which is sinuses or lack of oxygen. He also noted that the drug used was propofol. It was therefore his evidence that the records tallied with his testimony.

46. PW1 however pointed out the time for filling in the anaesthetic form was indicated as 11th February, 2005 at 7. 00 am during which time they were still at home. This, it was his evidence, was contrary to the normal procedure whereby the form is filled as you are with the patient as the process goes on. Another observation was that the method used was Intermittent Positive Pressure Ventilation (IPPV), whereby the patient has a tube in the trachea as oppose to where you give a patient anaesthesia through the bag. According to him, in the former case, everything you give goes into the patient since everything goes to the trachea. He also noted that the volatile agent used was 30% halothane which in his view was a very high dose and was not logical. In his view, if you use this method and give this amount of the dose, it is very high.

47. Referring to the operation record filled by the 2nd Defendant, he stated that at the conclusion it was stated that the patient was cyanotic.

48. According to PW1 during the operation, apart from the surgeon and the anaesthetist, there are other medical staff who take part in the operation and in this case they were the theatre technician, David Mweke, the scrub nurse and a circulating nurse. The scrub nurse assists the surgeon by passing instruments while the technician assists the anaesthetist and the circulating nurse is tasked with errands in the theatre. However, the person in charge of the team is the surgeon.

49. PW1 testified that thereafter the 1st Plaintiff was taken for CT scan which was done and he saw the report the following day. However on that day only the 2nd Defendant was with him while he did not see the 1st Defendant. According to the report, axial scars of the head were performed. In his evidence in carrying out a scan a contrast (a fluid which is opaque to x-rays) is administered so that if a patient has a tumour, the contrast is absorbed faster and it will light up. Since this was his area of speciality and as he did not see any contrast, and wondered whether the report was that of the 1st Plaintiff. PW1 then contacted Dr Bowry the head of radiology at the Hospital who confirmed that there was no contrast. This was confirmed by the CEO, Dr Maillu, who explained that the writer made a mistake an explanation he agreed with. He emphasised that on the day of the 1st plaintiff’s reversal both the 1st and 2nd Defendants were absent despite the fact that the procedure required their attention and despite calling the 2nd Defendant she did not turn up. PW1 was however disturbed when Dr Thanga, who was attempting to do the reversal, failed to do so despite his several attempts, and heard the nurse telling him to reduce the sedation. His worries were occasioned by the fact that when a patient is in this condition and paralysed following brain injury, it is only after reversal that one can know whether he is alive or dead. This is because when one is on a respirator ones look alive even if that is not the case. It was at this stage that PW1 decided to call the 1st Defendant but the 1st Defendant did not pick his call and even attempts by the Hospital nurse to trace her through the Hospital operator were unsuccessful. PW1 then felt that the person who could do the reversal was the Neurologist, Prof. Amayo, but on failing to find him got Dr Kwasa, who was standing in for Prof Amayo. Upon Dr Chunge calling Dr Kwasa, the latter through PW1 requested to talk with Dr Thanga, who was the one trying to wake up the 1st Plaintiff. Following the instructions of Dr Kwasa, Dr Thanga was able, in 3 minutes, to wake up the 1st Plaintiff. According to PW1 this testimony was supported by the clinical notes. Thereafter Dr Muniz continued with the management from where the 1st Defendant had left.

50. It was his evidence that the 1st Plaintiff stayed is hospital for 2 months from February to April 2004.

The Standards Audit and Ethics Committee (SAEC) Proceedings

51. After PW1 failed to get any satisfactory answers from those who were attending to the 1st Plaintiff, he decided to write a letter is dated 17/2/05 to CEO Nairobi Hospital. The Hospital reacted by instructing the Standard and Ethics Committee of the Hospital to investigate anything done wrongly. The said SAEC was constituted by Doctors and in the report by Dr Charles E. Kabetu, a Chief Medical Specialist in Anaesthesia and a visiting consultant anaesthetist at Nairobi Hospital the Report found that Halothane was 3%. According to PW1, Halothane is anaesthetic agent used in gaseous form for maintaining anaesthesia. According to him, low oxygenation (hypoxaemia) and high Halothane levels are known to cause Cardiac Arrhythmias and even Cardiac arrest. It was also found that with respect to heart rate and carbon dioxide saturation the monitors had no memory while the ECG monitor and non-invasive BP had a memory. ECG, according to PW1 stands for Electro Cardiograph which is a machine used as a monitor usually with reader and electrode placed on the chest also called dots which are able to pick electrical impulses from the heart and therefore display it in a monitor as a rising and falling graph to be monitored by people in theatre to see how the patient is doing to see if there is a change. It has a memory as it is working it also prints out on a roll of paper inside it. The machine is able to retain the proceedings in the memory so if anyone were to get an incident it can be retrieved to show what happened during the procedure. The printout shows blood pressure, heart rate, the oxygen saturation the time when in production started and ended as it records data and time. PW1 however stated that he had never seen the printout which ought to be with the owner who in this case was the 3rd Defendant.

52. According to PW1, Dr Kabetu also stated that for short procedures it is easy to chart and noted that the Oxicarp was not drugged. According to PW1, Oxicarp is another monitor for measuring oxygen saturation and carbondioxide concentration of patients normally put on the finger. It however does not measure blood pressure. The report, PW1, stated that Dr Okutoyi, the 1st Defendant admitted that at induction there was inadequate monitoring and stated that drugs should not be administered at once. The 1st Defendant also admitted that there was a need to show whether ECG dots were charged for. This, according to PW1 meant that they were not used as there was no indication that the same were charged for. The report therefore concluded that the procedure seems to have been lightly by the whole group. Further, according to PW1, the fact that the report noted that no ECG were charged, implied that the patient was not monitored as required and timing was also not indicated. To PW1 while the clinical practice is the same in Day Surgery Unit and theatre recording is different. In his view, while the drugs used were alright, 3% Halothane was high for such a short procedure.

53. According to PW1, the SAEC of the Medical Advisory Committee invited them to be briefed on their findings vide the letter dated 9th September 2005 to inform them of the progress of the 1st plaintiff. PW1 in the company of the 3rd Plaintiff and Dr Chunge attended and present were Dr M.B Joshi, Chairman, Dr C. Mailu, CEO, Dr R. Bowry, Mrs J. Mathew (DNS), Dr C. Kabetu (Reviewer). According to PW1, the finding of the Committee were that the 1st Plaintiff suffered ischemic telepathy which is brain damage due to lack of oxygen; resuscitation took 7 minutes; cardiac systolic arrest was noted; sinuses was the first adverse event which according to him is turning of the blood blue due to loss of oxygen. This, according to him, means the 1st plaintiff did not has oxygen at some stage. The duration of anaesthesia was 15 minutes while the operation was 5 minutes. The committees chairman explained that stringent action had been taken especially on the anaesthetist and had some suspension of 6 months and it was recommended that she serves further 6 months on suspension. The chairman read a letter by Medical Practitioners and Dentists Board regarding the findings which he said was the culmination of investigations they had been doing for several months as a result of interviews.

54. Referred to the proceedings of the other meeting which was held on the second day and a letter dated 30/8/05 to Daniel Mundia, (Page 71 of Plaintiffs bundle), PW1 stated the SAEC concluded that the incident was an anaesthetic accident resulting from inadequacy of Physiological monitoring on the part of the anaesthetist concerned. Referred to the minutes of the meeting of 10/6/05 at page 122 of Plaintiff’s bundle, the interview of Sister Kaviti, PW1 noted she informed the committee her role was to run the Day Surgery Unit and admitted the unit was short staffed and was a little rushed and that she had given the team an option of not doing the case but they opted to do it which delayed the next case. The next witness, Catherine Kibuchi, the Scrub Nurse, remembered that the alarm of the monitor went on immediately the procedure was started while David Mweke, the Theatre Technician, remembered seeing 90% readings but when he alerted the anaesthetist, the latter said the machines were faulty but was not sure if anaesthetist did anything. As for Dr C. Omamo Olende, the 2nd Defendant, she said that the 1st Defendant examined the 1st plaintiff less than 10 minutes before the procedure and once in Theatre things were done in systematic order. According to her, the theatre was quiet and she did not hear any noise or any problems. In her closing remarks, the 2nd Defendant urged the Hospital Management to help younger consultants and to back up, a request which the Committee found valid.

55. As regards the 1st Defendant, PW1, noted that she said that she used 4 mg of sulphur and 3% of Halothane. In her reflection she said that what might have happened was that the patient went into severe hypertension as a result of drugs used crushing his blood pressure. However, according to PW1, these drugs were administered by anaesthetist Dr Okutoyi, the 1st Defendant. She further stated that she reduced the Halothane concentration towards the end and indicated that if found with a similar scenario she would not anaesthetise similarly. At page 129, the 1st Defendant stated that she got a rushed call from Dr Otieno while at page 130 paragraph 2, she stated that she went back to the chart and she admitted she was not happy as it had inaccuracies. However PW1 noted that the chart was being filled in by the 1st Defendant. Similarly, the person who took the history was the 1st Defendant who admitted there were underlying problems and admitted that she made mistakes in taking up a rushed case because she should have gone deeper into the history. She also admitted that she did not check the monitoring device before using them. PW1 noted that at page 131 of the minutes, the report stated that the 1st Defendant learnt some lesson that in future she would not rush to take up a case without adequate preparations and apply proper vigilance in reading charts. She further admitted there was inadequate administration for the 5-10 minutes’ procedure. At page 132 the last bullet, PW1 noted an indication of poor and inadequate monitoring and discrepancies, patient inadequately monitored. However PW1 stated that while monitoring lies an anaesthetist and blame should not arise, the choice of drugs was correct but there was a possibility of excess drugs. According to him, the surgeon, in stating that the place was quiet. However in conclusion the surgeon said the patient was not closely monitored and something underlying was missed out and that if something goes wrong all are responsible. The surgeon also realised that regular consultation with the team is important. However, PW1 noted that the members’ view was that it was not definite that the alarm was on. However, at page 137, the 1st Defendant stated what she would do effective communication.

56. At the end the SAEC members decided that a letter be sent to the board after arriving at the conclusion that the suffering caused to the 1st plaintiff was due to inadequate monitoring which in its view summarised all proceedings of SAEC. In its view, it was however difficult to pinpoint where and when the problem happened. In the meantime, it was recommended that the 6 months suspension imposed on the 1st Defendant be extended to one year and that she be severely reprimanded failure to provide leadership, poor anaesthetic record keeping, failure to fulfil the family’s psychological needs, wanting attitude, significant shortcomings and attend division of anaesthetist meetings. It was found that the anaesthetist did not know who the patient was which was very important. Apart from serving the one year suspension, the 1st Defendant was upon completion thereof to be assigned a mentor by a senior anaesthetist to guide her.

57. With respect to technician, it was found that he did not do what was required of him, having attitude problem leading to irresponsibility and elements of untruthfulness for both technician and anaesthetist. There was a need for the technician to be reprimanded and his past checked and be monitored for six months. PW1 however noted that the technician was an employee of Nairobi Hospital. As regards the scrub nurse, it was noted that she was expected to be alert and the committee recommended a mandatory letter.

58. With respect to the surgeon she was reprimanded for not playing overall leadership.

59. As regards the surgery unit, it was noted that record keeping was not commensurate with the main theatre.

60. PW1 however complained that there was a delay in furnishing him with the SAEC report. Referring to page 71, PW1 stated that it was a letter from hospital to Daniel Lumbia dated 30/8/05 stating that the SAEC concluded that the incident/incidents were anaesthetic accident resulting from intra operative monitoring on part of anaesthetic caused and there was no evidence of equipment failure or surgical case. The letter is dated 30/8/05. The SAEC committee formed it investigations in September 2005. Yet the letter was a month earlier.

61. Instead PW1 got a letter from Hospital telling him that at that time the bill accrued by the 1st plaintiff was Kshs 751,676. 92 and that it was expected that the bill would rise and that the policy was that he settles the bill. In his view, his initial expectation was that the bill would be in the region of Kshs 8,000/=.

The Preliminary Inquiry Committee Proceedings

62. PW1 also referred to the Preliminary Inquiry Report to the Medical Board dated March, 2007 whose findings were based on the report by Prof. Ngumi, a consultant anaesthetist, that the 1st plaintiff was fit for operation and that he was treated with anaesthesia and at the end of operation the oxygen level 89. It was observed that this incident left patient with considerable brain damage. It was however noted that communication to parents could have been emphatic. It was recommended in the PIC Report that the conduct of the 1st Defendant be investigated. There were also recommendations are regards the 2nd Defendant as well as the institution. From the PIC Report there was going to be a Tribunal empowered to investigate complaints of medical malpractice to investigate the matter.

The Tribunal Proceedings

63. PW1 indeed confirmed that the Tribunal proceeding took place and apart from himself, the 1st and 2nd Defendants appeared before the Tribunal composed by 12-16 doctors, all of whom are consultants. The Tribunal is to investigate complaint of medical malpractice.

64. PW1 testified that according to the proceedings before the Tribunal, the 1st defendant confirmed the use of 3% and that the operation was to take 30 minutes. According to her, she did not hear any alarms of danger. She however admitted that she did not set the limits.

65. On his part Dr Mailu, the Hospital CEO at page 157 confirmed that the machine a memory though he was unaware whether the memory was retrieved.

66. The 2nd Defendant, who conceded that she was in charge, on the other hand stated that no one seemed sure of what had happened though she confirmed that the monitors were in place and were in fact making beeping sounds if on.

67. At the end of the proceedings, the Tribunal page 257-269 of bundle A made a ruling in which the 1st Defendant’s licence was cancelled and she was suspended for 6 months and her name removed from the register. It was further ordered that she undergoes remedial training. The Tribunal however exonerated the 2nd Defendant of the misconduct charged. With respect to Nairobi Hospital while it was found not liable for the charge it was found responsible as an institution.

Reasons for holding the Defendants liable by the Plaintiffs

68. PW1 was however not satisfied with the decision of the board in all aspects citing the 2nd Defendant who was acquitted due to the testimony of Prof Raja who, according to PW1 did not utter the words which were attributed to him. Similarly, which the 3rd Defendant was exonerated on the ground that its machines were working, by the time of the decision, there was nothing to prove this as the SAEC Report had been withheld from the plaintiffs until the last day so that PW1 had nothing to rely on despite having applied to be furnished with the information as to what transpired in the theatre. Instead he was given the same a day after his testimony. With respect to the 2nd Defendant, it was pointed out by PW2 that it is important to distinguish what the board was doing from what the court is doing as the Board’s power is only limited to infamous conduct as opposed to common negligence. According to him the Board’s role was limited to a finding as to whether there was sufficient evidence to sustain the charge of the famous conduct. With respect to 1st Defendant she used Halothane, Propofol and Fontanel. While Halothane was found to have been administered on a higher dose of 3% while the normal dose ought to have been 0. 02-2%. Further, Atropine, which protects the heart, was not given to the 1st plaintiff. According to PW1, when drugs are given in the combination, they suppress the muscles of the heart and prevent cardiac arrest.

69. The second aspect, according to PW1 was with respect to monitoring of by the anaesthetist drug at the time the 1st plaintiff was in theatre. The chart filled by the 1st Defendant, on the other hand indicated 7. 00 am when none of them was in hospital. She also admitted the chart was filled retrospectively yet it should have been filled as the procedure was going on. In the board the chart was found to be full of inaccuracies which the 1st Defendant admitted in part of the SAEC Report. The monitoring was inadequate when J went to theatre. He had a heartbeat and was conscious but when removing the drip he had no heartbeat. In the intervening internal, PW1 wondered why the changes in the heart were not picked before it stopped, yet that is the main reason for monitoring to detect early changes to stop it from stopping. Apart from the pulse rate and the oxygen, the vital signs the monitors collect include blood pressure and carbon monoxide concentrations.

70. It was PW1’s case that the 1st Defendant’s position that when the 1st plaintiff was found without pulse he had oxygen concentration of 89% was an impossibility. He also took issue with the fact that both the 1st and 2nd Defendants were not present at the time of the reversal and could not be found even on phone yet the medical officer had problem with the reversal. In his view, it was wrong for the 1st Defendant to abdicate her duty to someone who did not know what to do, yet she is the one who gave instructions. PW1 lamented that to date, the 1st Defendant has not explained to the plaintiffs what happened. According to PW1, had the anaesthetist given adequate drugs and monitored properly the problem would not have reached where it did.

71. Pw1 blamed the 2nd Defendant who according to him was the primary care giver who booked and arranged for theatre and choice of the anaesthetist. She however arrived late on day of operation by 20 minutes leading to change of anaesthetist from Dr Muniz to the 1st Defendant who she said she was satisfied with. According to PW1, the 2nd Defendant was the team leader as the surgeon and as a team leader she had to co-ordinate the procedures in theatre. PW1 was however, was appalled to hear that she was called when she had gone to deglove that the 1st plaintiff was blue and the operation took 6-8 minutes. As a primary care giver, PW1 wondered whether the 2nd Defendant inquired from the anaesthetist whether everything was ok and whether she ever found out the condition of her patient all through the procedure. According to PW1, Surgeons wait until the tube is removed before leaving but not to leave the patient on the table. While PW1 blamed the 2nd Defendant for failing as a leader of the team in the theatre and not taking her duties seriously in co-ordinating the people in the theatre, despite the fact that surgery was a simple manipulation that did not prevent her from taking her leadership role seriously, he however appreciated that after the incident, the 2nd Defendant was very supportive and visited the 1st plaintiff both in the hospital and at home.

72. As for the 3rd Defendant, PW1 took the issue with the fact that the details of the SAEC report were withheld from the plaintiffs so that they could not have known about the machines but further from the SAEC Report there were questions about the machines being used. It came out that with respect the Oxicarp machine the service chart was done one month after the incident and there was no service chart before. PW1 therefore had reservations with respect to the ECG monitors since the memory was requested for but has never been given. Further, there was a shortage of staff since the circulatory staff was also the nurse in Day Surgery Unit.

73. It was PW1’s evidence that the post-surgery procedure continued on the injury and that the 1st plaintiff was examined by Prof. Amayo who was called in by the 2nd Defendant who examined the 1st plaintiff and prepared a report dated 23/5/06 at page 112 of Bundle A. Prof. Amayo also made another report on 7/2/08 at page 273 of the bundle A. The 1st plaintiff was also seen by Dr Nguithi a psychiatrist (see page 316) and was examined by Dr Hirani (see page 317). It was PW1’s evidence that the 1st Plaintiff had made a lot of progress since 2005 when he was soiling his bed and walking naked which had receded. He however had no memory as he would forget information in a period of five minutes. He therefore could not learn anything and was confined at home. Further, he had no orientation and does not know the days of the week. In addition he is temperamental and becomes moody and when this happens he goes into manic situations and is very aggressive and bangs the door but is also in a hypomanic state in which he becomes depressed and sits alone and shows tendencies of compulsion disorders like taking bath up to 6 times a day and gets very aggressive when corrected. Occasionally he comes out when half-dressed and only goes back to put on dress when reminded to do so. According to PW1, the 1st plaintiff, at the time of his testimony was 25 years old and when he meets his married friends he inquires when he will marry, go to university and get a job. Since the 1st plaintiff cannot be left alone, the plaintiffs were compelled to employ a caretaker, one James Roy, to take care of him. He cannot be left alone James Roy filed an affidavit in this court.

74. However, PW1 testified that before the incident the 1st plaintiff was a young active man who excelled in class and extra-curriculum activities when he won medals in swimming, basketball and rugby and was even picked up by KTN 2 weeks before the incident as a young achiever. Based on the foregoing, the 2nd and 3rd plaintiffs expected him to do well since the 1st plaintiff wanted to be a doctor and a radiologist like PW1 which hopes were dashed as a result of the incident. According to PW1, averagely a radiologist earns Kshs 14,000/- per day.

75. The plaintiffs therefore claimed Kshs. 100,000/= paid as deposit, medical expenses in the sum of Kshs 181,580. 00, claim for pulse oximeter and oxygen generator to supply him with his oxygen at the sum of 232,000/=, legal cost incurred at the proceeding at the Board of Kshs 200,000/= Board proceedings in the sum of Kshs 9,950/=, Kshs 350,000/= spent on the 1st plaintiff’s full time helper which continued to accrue at the rate of 10,000/= and Kshs. 20,000/= on drugs per month.

76. Apart from the foregoing, PW1 testified that the incident had affected him as a person as well as the family since the 1st plaintiff was the first born. Accordingly, PW1 also claimed relief as the incident depressed him and he suffered emotionally. He therefore prayed that the court should award him the prayers in the Plaint.

77. PW1 averred that prior to the filing of the suit, they made demands to which the 1st and 2nd Defendants responded.

78. In cross-examination by Mr Githaiga, learned counsel for the 1st Defendant, PW1 admitted that anaesthetic drugs are generally dangerous hence the reason for monitoring them to counteract them if they have adverse effects. If a person reacts you are supposed to counteract it. According to him, since the anaesthetic knows he is injecting the drug, he ought to be ready with antidote. This was the reason why a consent is required prior to the procedure.

79. He stated that the theatre operates as a team comprising of the surgeon, the leader, the anaesthetist, who administers the drugs to induce the patient to sleep assisted by theatre technician who sets up the machine, then there is the scrub nurse who hands over the instruments to the surgeon, and there is the circulation nurse who finds out what is required. According to him, though the theatre technician, who is a permanent employee of the Hospital, sets up the machines, the anaesthetist must ascertain the condition of machines. It was his evidence that the monitors are set to be within normal physiological range so that if it goes outside the range it alarms the monitor picks up the variables and the signal, analyses it and if the value falls outside the normal range it sounds the danger. However, if the siren is faulty the monitor will be silent. He however testified that most monitors had have a memory and record everything during the operation. In his evidence, the monitor is very loud and can be heard across the corridors just as a car alarm. However there is another beep which goes with the heartbeat. To him, one cannot mistake the alarm.

80. Referred to the PIC Report he confirmed that it was recommended that there was a need to investigate the equipment in use. He however confirmed that the report while not dealing with the drugs used mentioned the skills. PW1 however disputed the suggestion that the cause of the incident was not ascertained because in the SAEC Report, the 1st Defendant admitted the drug crushed and caused the cardiac arrest. However, most people said the cause was difficult to ascertain.

81. Referred to the 2nd Defendant’s report, PW1 admitted that on the surface it would seem that the Anaesthesia used the usual one. In his view, the memory would have helped a great deal but in its absence we must make do with what we have. It is the management of the hospital that ought to have them and though they were required by SAEC and the board, they were not furnished. While acknowledging that he did not have training as a specialist in anaesthesia, it was his testimony that all doctors go through the basic anaesthesia. According to him, in determining the anaesthesia to administer you take pre-existing condition of the patient and the patient does not have a pre-existing condition, there is a standard and the 1st plaintiff would have been class one which is optimum.

82. While PW1 appreciated that to be a specialist anaesthetic one has to go for masters which he had not done, he insisted that determination of the amount is a very simple thing so he was qualified to state that 3% Halothane was high. Referred the opinion of Dr Kabetu, an anaesthetist, at page 151 of the Plaintiff’s bundle, he confirmed that while the opinion had no quarrel with the said 3%, it stated that the duration mattered. PW1 however confirmed that the SAEC and the Board are comprised of a team of doctors and that both did not find that 3% Halothane used was too high, though one of the reason for concerns was because operation may be dangerous. The concerns were however not given with respect to specific doctors.

83. PW1 admitted that he did not protest after he was assured that the doctor was comfortable with the anaesthetic and that he was not present in the theatre. He however insisted that his evidence was based on reports and what he was told. He was however unable to give objective evidence on what happened in the theatre as the theatre team comprised of many people and the anaesthetist did not communicate to him. The scrub nurse and the theatre technician on the other hand had nothing to explain. However, the cadre is the surgeon, the anaesthetic and the rest are paramedic. Within the cadre there is however a hierarchy with the 2nd Defendant, as the surgeon being the team leader naturally. PW1 however insisted that the 1st Defendant was absent when reversal was being attempted. He however admitted that reversal is a process and that the 1st Defendant said she left instructions to the doctor as what to do. However, PW1 disputed this position as the same was not reflected in clinical notes. Further, the 1st Defendant was unreachable and was not remorseful.

84. PW1 insisted that pre-operative assessment are necessary hence the need to report earlier, his view being that one hour would have been appropriate. To him, he had no reason to stop the surgery and had nothing happened he would not have complained with the period as he was reassured by the surgeon and he believed that the 1st plaintiff was fit.

85. PW1 however admitted that the 1st Defendant appealed against the sentence and that the same was negotiated to reduce the terms of suspension. In other words, a settlement was reached in return for variation of the terms of sentence.

86. PW1 stated that doctors use the Hospital as facility to admit their patients and that the procedure is that one applies and is vetted. He admitted that having been a doctor since 1979, treating patients does not necessarily go on well and he did not think that the 1st Defendant intended to leave the patient with brain damage. He confirmed that the 1st Defendant called the ICU and asked to speak to him and informed him that she did was her best. He confirmed that the hospital suspended the 1st Defendant before the findings and that it was the hospital that had the vital evidence. He reiterated that since Dr Kabetu said no ECG dots were charged, the machine could not have been used. He explained that the ECG dots are the heads to which you attach the wires and press to the chest so that there is connectivity between the machine to the body and they feed the monitor with information and check blood pressure Pulse and carbodioxide.

87. On being cross-examined by Mr Inamdar for the 2nd Defendant, PW1 disclosed that he had known the 2nd Defendant for a long time since medical school and that he entrusted the 1st plaintiff to her because he had no reason to believe she was not competent at that time. According to PW1, while the 1st plaintiff sustained a nasal fracture while playing basketball, it was emergency though nasal fracture is not very complicated and occurs quite frequently. Though he could deal with it himself, he did not wish to do so.

88. Referred to the allegations of negligence against the 2nd Defendant, PW1 insisted that he specified the particulars of negligence in paragraphs (a), (g) and (h) as against the 2nd Defendant which allegations were similar to his averments and the essence of the averments in the Plaint in respect of the first two charges. Referred to the bottom of page 258 of the Plaintiff’s bundle A, PW1 confirmed that after the board heard his evidence all the three Defendants submitted no case to answer and there was only one charge left against the 2nd Defendant since the Board found that there was no case with respect to the first two charges. However, the 2nd Defendant was placed on her defence on the last charge. However, the Board found that there was no sufficient evidence to prove the charge. Therefore at page 264 of bundle A, the 2nd Defendant was found not guilty of all the three charges.

89. PW1 also confirmed that he very well knew Dr Muniz who was retained previously. According to him Dr Muniz was a reputed senior man. It was PW1’s evidence that the responsibility to decide who to work with as the anaesthetist was the 2nd Defendant’s. While reiterating that he was not in the theatre and never saw the anaesthetist, PW1 insisted that there was evidence in the SAEC report by a person who was in the theatre that the operation was rushed. He however admitted that it was a very simple procedure of between 5-8 minutes. He however referred to the evidence of Sr Kaviti in the SAEC report at page 122 of bundle A where the witness stated that the staff was harassed and rushed but the procedure went on normally and was not rushed. PW1 however stated that the Board did not put the 2nd Defendant or her defence with respect to time. Referred to the evidence, PW1 admitted that it was stated that the 1st Defendant was not picked by the 2nd Defendant though the 2nd Defendant informed him that she was comfortable with Dr Okutoyi. PW1 however insisted that she was not given a proper explanation as to what transpired and hence he was prevented from properly presenting his case which is what led to the dropping of some charges. According to him, he gave his evidence without the benefit of that evidence which, though he had requested for, was furnished after his evidence in chief by which time it was too late. It was his case that the said evidence was withheld from him by the CEO of the 3rd Defendant, which made him feel that there was a cover-up. PW1 further stated that he complained about a letter at page 71 letter from the Hospital to the Board which in his view was prematurely written since the same made conclusions while the meetings were still going on they had already written a letter on their conclusion. According to him, there was no danger in relying on the minutes while criticising the letter because the letter was by the CEO of the Hospital, Dr Mailu, who sat on the same Committee and who at page 139 of minutes of meeting of 26th August 2005 told the committee that he needed to report back to the Board. He however confirmed that while SAEC was an independent body from the Board and it was noted that the findings of the SAEC had been communicated to the Board.

90. According to PW1, at page 146, the recommendation with respect to the surgical team reprimanded the surgeon, who in several instances admitted having failed as a team leader, though at page 128 the minute of 17th June 2005 at page 132 it is indicated that there were two team leaders. PW1 however disagreed that the entire issue was based on monitoring since to him, every person in the theatre is concerned with the patient on the table. He however conceded that monitoring ought to have been done and that it was possible that the monitors may not have been working and that the anaesthesia could have been improperly administered and that the reversal could have been improper. He however maintained that monitoring is part of the duty of the surgeon who ought to have looked at the colour of the blood and the membrane and should have noticed the colour changes.

91. It was PW1’s view that from the answers given an impression could be made that the 2nd Defendant did not act as a team leader and that at pages 135 and 136 at the top, it was concluded that the 2nd Defendant did not so act, though PW1 was not aware that the 2nd Defendant was reprimanded as was recommended. However at page 263-264 of bundle A, the Board gave the 2nd Defendant the benefit of doubt. According to PW1, the Board was correct in its view that it was not bound by the SAEC report. According to PW1 the Hospital failed to get the memory on the monitor, which according to him is like a black box in a plane since it records all the vital signs of the patient. It was however not within PW1’s knowledge that this memory was obtained. Referred to page 153-155 of bundle A, he confirmed that it was stated that the machines were ok though the memory was not retrieved. PW1 however insisted that had the memory been retrieved it would have given the answer as to what took place in the theatre.

92. While not specifically criticising the 2nd Defendant for not monitoring the machine, PW1 insisted that monitors have a beeping sound so that even if concentrating on the patient the beeping sound would be there. Further, the 2nd Defendant should have checked the colour of the blood, and skin. While he admitted that the patient was fully draped, he assumed that the nose was not. He explained that since the surgeon would be on the head side, the feet would not be within her part of operation though the colour change would be in the nose which has a skin. However, the blood would be from the inner part of the nose and the surgeon would be working from both the inside and outside the nose. It was his evidence that external manipulation means working on the outside but a finger goes inside. He however agreed with the opinion of Prof Raja that one would see it if one was looking at it. PW1 explained that he did not criticise the 2nd Defendant for degloving. However, at the end of the operation, the surgeon stands by when the patient is being woken up till the patient coughs and confirms with the anaesthetist that the patient is okay. In this case however, the 2nd Defendant was being called back after degloving when the patient was blue. PW1 therefore insisted that the 2nd Defendant abandoned the patient. While he stated that the evidence disclosed that something was wrong when the patient was undraped, PW1 insisted that the 2nd Defendant ought to have ben next to the patient when he was being woken up. He however stated that even if the 2nd Defendant abandoned the patient, the damage had already been done. This however was a reflection of the care she was giving as the team leader. While there was no question of surgical care and procedure, there was the question of responsibility which is a moral and professional issue. PW1 therefore agreed with the SAEC report that all were responsible as the surgeon always inquires how things are going on.

93. According to PW1, the incident occurred on a Friday. He stated that the 1st plaintiff was placed on sedation and the notes do not show reversal was to take place on Monday but on Sunday. However, the 1st Defendant told the Board that that the patient was to be woken up on Monday. While the initial anaesthetist was the 1st Defendant, PW1 stated that there was a change when Dr Moniz took over from the 1st Defendant. To PW1, that would however not have helped because the damage have already been done. According to him, if the brain misses oxygen for 5 minutes the cells begin to die and they remain dead.

94. In answer to questions put to him by Mr Kiragu, learned counsel for the 3rd Defendant, PW1 stated that he made a claim against the Hospital because the facility was in the hospital and there are questions as to the proper working conditions of the machines. According to him, the 1st plaintiff was hooked onto two machines one of which alarmed while the other did not and when looked at read 35% oxygen concentration. Whereas one of the said machines beeps according to the heart beep, the 1st plaintiff had cardiac arrest yet there was no report of the beeping being heard. According to PW1, if the heart had stopped remedial measures could have been taken.

95. It was his evidence that SAEC reprimanded the staff that the theatre technician and the scrub nurse did not do what was required of them. On the other hand the Hospital should have a monitor and the strip but which though was asked for, was not availed. Apart from that there was also the question for maintenance certificate for the machine e.g. the Oxicarp. Instead there was a certificate dated 23rd March, but not the one at the time of the incident. This, according to PW1 was the reason he was questioning the equipment. He also had issues with the manner in which the 1st plaintiff was handled by Dr Thanga. While had notes had been left that the reversal be started on Sunday, when PW1 went, they found the said doctor fumbling and reducing one drug but not the sedative and informed them that the patient was not reacting prompting Dr Chunge to contact Dr Kwasa who told Dr Thanga what to do and it was only thereafter that the 1st plaintiff kicked. According to PW1, in medicine one does not fumble but asks.

96. PW1 however stated that it was the anaesthetist who was to undertake the reversal, though this depends on the instructions of the Hospital. He was however surprised by the absence of the anaesthetist that Sunday. While he was however emphatic that by the time of the reversal the damage had already been done, PW1 stated that during the reversal one can kill the patient. According to him the complaints of the 2nd and 3rd plaintiffs was what they were subjected to during the surgery and that his conclusions were not largely founded on his training as a medical professional. According to him the 35% reading was low and was consistent with cyanosis. His further concern was however that the machine ought to have alarmed as well.

97. PW1 however admitted that he was aware of how the Nairobi Hospital operates with respect to staff. He agreed that both the 1st and 2nd Defendants were consultants and that it was his decision to engage the 2nd Defendant. He however reiterated that at first he was informed by the 2nd Defendant that the anaesthetist was to be Dr Moniz and first learnt of the 1st Defendant’s involvement when the 2nd Defendant arrived. However the 1st Defendant was not known to him and he expressed his sentiments to the 2nd Defendant that he was not sure of the sudden change but after assurance from the 2nd Defendant that she was comfortable with the 1st Defendant, he had no reason to harbour further doubts.

98. PW1 also stated that he did not know Dr Thanga but was informed that she was the senior doctor at the ICU. According to PW1, he was of the opinion that it was Dr Amayo, the neurologists, who had been brought by the 2nd Defendant who was looking after the 1st plaintiff. In PW1’s opinion the anaesthetist was required because anaesthesia was being used and in his experience, the anaesthetist should have been present.

99. According to him he asked the CEO of the Hospital to investigate the matter because he did not know what may have gone wrong since his colleagues did not tell them what went wrong.

100. According to PW1 on 11/2/05 he went to the hospital and reported to the nursing desk and was informed that the 1st plaintiff was booked for day surgery and they recorded what he was telling them. After that the 1st plaintiff was taken into a room, changed into a light blue gown after which vital signs were taken. According to PW1, in the room were Dr Barasa andDr Aluoch. While he knew that the surgeon was the 2nd Defendant while the anaesthetist was to be Dr Moniz, he did not inquire about the other members of the team since it his view it would add no benefit. According to him, he never met the 1st Defendant before the surgery.

101. Referred to page 3 of the plaint, PW1 confirmed that the only particulars of negligence against the Hospital were the ones in (i), (j) and (k) at pages 3-4. These were in respect of the 2 the monitors; the staff directly employed by the Hospital i.e. the theatre technicians, nurses and Dr Thanga in the ICU; and the findings in the SAEC Report regarding the inadequacies in the theatre, keeping of records and booking of patients which can contribute to the disaster. According to him, these short comings were a fact for example since they were at the Day Surgery 9. 10 am, if there was a system of contacting doctors there would have been no delays and mishaps such as Dr Moniz going away without knowing that they were there. According to him, the Day Surgery was not as efficient as the Main Theatre. He therefore did not agree that they did not contribute to the injury despite the fact that he was not present in the theatre. According to him, since he was not present in the theatre, his conclusion was based on the evidence that was placed before the SAEC.

102. PW1 emphasised that the surgeon was the overall team leader and he admitted that he chose the surgeon and it was the surgeon who chose the Hospital and he agreed with decision to do so. The next member of the team is the anaesthetist normally appointed by surgeon. According to him the anaesthetist is the next person in rank overall team leader. However, there is also the theatre technician to set up the machine and hook up the patients onto the machine and to ensure the machine works. Apart from these are the scrubs Nurse who helps the surgeon in passing over instruments and the circulation Nurse who goes around.

103. While PW1 admitted that he appeared before the SAEC and at the end was were given a report of the findings, he however only saw the 2nd report the day after his appearance hence his evidence was given without the benefit of the report leading to the dropping of some charges. Referred to the minutes of SAEC at Page 206 of Vol. 2, he admitted that he knew both Dr Joshi and Dr Musau who in his view were good doctors. It was however his testimony that the members’ overall observation did not deal with the technician. He however confirmed that at the top of page 408, reference was made to the readings observed one of which was very high. According to the evidence of the technician, the alarm went off at 90% and he alerted the 1st Defendant. PW1 however maintained that the alarms did not go off because in his view, if the two machines were working both ought to have gone off. It was PW1’s view that the technician ought to have done more and alerted the surgeon. PW1 then referred to page 424 where it was found that there was a failure in monitoring which according to the SAEC was the responsibility of the anaesthetist. Referring to page 428 note 6 PW1 stated that monitoring is not just the machine but encompasses blood pressure, carbon dioxide concentration and heart rate. The SAEC therefore concluded that there was inadequate and ineffective monitoring and lack of communication in the monitoring team comprised of the anaesthetist, the theatre technician and the rest of the theatre team because the team ought to hear the alarm notwithstanding the fact that serious monitoring ought to be by the anaesthetist and the theatre technician.

104. In this case, however, the anaesthetist did not recall hearing any alarm and was not alerted that there was a problem. According to PW1, part from monitoring though machines there is the physical monitoring by anaesthetist and theatre technician by feeling of pulse, looking at the patients, lips blood etc. Referred to the evidence of the 1st Defendant at page 420 the last sentence, PW1 stated that the 1st Defendant’s evidence was that she was not happy with the anaesthetist chart and her opinion was that the patient went into a severe hypertension. According to PW1, The heartbeat stopped due to severe hypertension and the patient may have been disconnected to the ECG monitor. Referred to page 204 of plaintiff’s bundle evidence, PW1 stated that in answer to Mr. Opiyo’s question, the 1st Defendant stated that if the monitor is working and any part of patient is disconnected, it alarms. However, in answer to Ms Nungo’s question, the 1st Defendant said that she was not just relying on the alarm. However, the board did not make a finding that Mr Mweke’s evidence that the alarm went off was correct though if found him a truthful.

105. Referred to the last paragraph of page 489, PW1 stated that it was said that the instruments were used in other operation without incident. He however did not agree that the board found the equipment functioning. In his view, monitoring equipment has two parts: one deals with the monitoring and the other one is the one that detects that something is wrong. If the patient who was there had no problem the equipment would pass as normal. Similarly if the person who followed the 1st plaintiff did not have any issue the machines would not show. According to him, when the patient is under anaesthesia you have to check carbon dioxide concentration, the heartbeat and blood. In cardiac arrest cases if the heart has problem the alarm changes through you have to also do physical monitoring by anaesthetist and blood check by the surgeon. In his view, therefore, even without a monitor the problem should have been detected. It was his evidence that if the anaesthetist dies not react when alerted by the theatre technician, the latter ought to alert the surgeon.

106. According to PW1, what may have cause the injury to the 1st plaintiff were the drugs given by the anaesthetist which were a combination of drugs that suppress the heart muscle, Halothane, which is a strong depressant of the heart and whose dose was high at 3% as opposed to 0. 5% - 2. 5%. According to him, high concentration of Halothane may depress the heart leading to cardiac arrest. The other drug, propofol suxamethonium, according to PW1, should not be given without Atropine which protects the heart and this was not given to the 1st plaintiff. Otherwise it would stop the heart.

107. With respect to post operation events regarding reversal, PW1 testified that the primary responsibility rests with anaesthetist with others such as a surgeon. At that stage it is important that the neurosurgeon, the anaesthetist and the physician be there. The need for a neurosurgeon is that if the patient is not responding to the reversal the neurosurgeon is the one who does the neurological examination to show if the patient is brain dead. To PW1, the neurosurgeon is to be invited normally by the primary giver in this case the 2nd Defendant. Referred to page 492 of volume 2, PW1 acknowledged that there was a list of the members and that he knew only some of them such as Dr Kiambe, a highly regarded surgeon, Dr Chris Wagaiyu, a Dental Surgeon, Dr James Nyikal, DMs Paediatrician. All these people, according to him were highly regarded.

108. Referred to page 482 in respect to 3rd Defendant, he stated that out of the 5 charges levelled by the medical board, the Board concluded at 490 with respect to the Hospital, that the facts were unable to prove charges against the institution save for the responsibility of the owner of premises. PW1 therefore stated that the Hospital cannot escape responsibility for shortcoming of the 1st Defendant who was found guilty of misconduct alleged against her.

109. Referred to page 2 of 3rd Defendants bundles, PW1 acknowledged that it was an admission completed by him undertaking to pay the charges.

110. Upon being re-examined by Prof Wangai, learned counsel for the plaintiffs, PW1 stated that though a consent is required, it is not a blanket protection for negligence and does not cover for wrong actions not intended. While reiterating his evidence against the 1st Defendant, it was his evidence that the 2nd Defendant being in charge of operation and the team leader was in charge of the theatre and was supposed to ensure success of operation. It was his case that the 1st plaintiff’s management was in Day Care Surgery by employees of the Hospital and the next stop was the theatre owned also by the Hospital where the treatment takes place. Here there were the theatre technician, the scrub nurse and the machines owned by the hospital.

PW2’s Evidence

111. PW2 was DR Anna Nyokabi Nguithi, a consultant psychiatrist, MBCHD in Psychiatry having qualified as Psychiatrist in 1991. According to her, she had worked in Kiambu and Thika as District Psychiatrist and also at Kenyatta National Hospital as Consultant before going to Private practice. She testified that she knew the 1st plaintiff herein having attended to him on many occasions including when he was admitted at Chiromo lane Medical Centre from 28th July 2005. According to her, the 1st plaintiff’s parents gave a two weeks history of restlessness, over talkativeness and increased incontinence of urine and stool. He had earlier been seen by another psychiatrist with complaints of low mood and suicidal ideation and he had been started on an antidepressant.

112. According to PW2, on admission at Chiromo lane Medical centre, the 1st plaintiff was extremely agitated, restless and could not sit still at all. He talked excessively in a loud voice and sometimes could shout loudly asking for his mother or accusing his caretaker of wanting to kill him. He was put on medication and he improved and upon his discharge on 5th August 2005, continued on outpatient follow up. PW2 therefore made the following conclusions:

i. The 1st Plaintiff suffered severe cognitive deficits and has to re-learn basic skills such as reading, writing and arithmetic.

ii. The 1st Plaintiff suffered psychiatric complications in the form of depression, mania, paranoia and severe obsessional symptoms.

iii. The 1st Plaintiff has had a drastic change in personality and whereas he has been improving, only time will tell how much of his pre-morbid skills and personality can recover.

113. PW2 then prepared a medical report dated 24th May 2006 summarising all the matters stated above. Further, she also did a follow up review of the 1st Plaintiff on or about the 5th February 2008 and prepared a medical report dated 5th February 2008. From her examination of the 1st Plaintiff, she noted that whereas he had made some improvement since her last review of him in the year 2006, he still had difficulties in short and long term memory.

114. In her testimony in court, PW2, stated that the patients referred to them are people who are mentally disturbed and that the 1st plaintiff was referred to her due to being mentally disturbed. It was her testimony that after the incident the 1st plaintiff could nolonger read, write or do simple arithmetic and was referred to her because he was severely disturbed, agitated and had paranoia or excessive fear. According to her, the 1st plaintiff developed severe obsessive symptoms and such as doing things over and over and was nolonger the same person. Whereas he had been improving only time would tell whether he would fully recover. She further testified that the 1st plaintiff lost cognitive functions such as intellectual, memory, concentration, attention and the ability to organise himself and his life.

115. It was PW2’s evidence that from childhood cognitive functions develop and that someone who is not cognitive is someone who is going back. It was her evidence that at the time that she saw the 1st plaintiff, he was aggressive, agitated and manic though before he was depressed. He could not sit still, was irritable and aggressive, paranoiac and very suspicious. He had obsession about certain things such as shower. These were however historical observations and when PW2 saw him saw him lastly in 2008 there was a bit of improvement as he could read though he could not be a doctor or a lawyer. At that time PW2 could not apportion any career for him and was of the opinion that the 1st plaintiff may always need to be looked, may not be independent and may sustain many problems. He would therefore not attain full cognitive potential and it may precipitate dementia.

116. In cross examination, PW2 stated that she had not attended to the 1st plaintiff before the accident and that she last saw him in 2008. In her view, the 1st plaintiff had made quite some improvement in terms of reading and general behaviour and her opinion was that the best case scenario is that he may make some gradual improvement. Since his brain was young, it would either improve or may go wrong leading to personality problems.

PW3’s evidence

117. PW3, Philip Moturi,a former classmate and basketball teammate of the 1st plaintiff testified that he was a Software Engineer working for a company called Mobile Decisioning. PW3 was also an avid sportsman, who had the privilege of representing Kenya in Rugby, Basketball & Baseball. It was his evidence that he met the 1st plaintiff in February 2002 on the basketball court during a basketball tournament known as the Strath Cup under-14 Basketball tournament during which time PW3 was in Strathmore & playing for Strathmore whilst the 1st plaintiff was playing for his school, [particulars withheld]School in Nairobi. A week later after their first meeting, PW3 got an admission at [particulars withheld]School where he became the 1st plaintiff’s classmate in Form 1A.

118. It was his evidence that during their schooling at [particulars withheld] School not only were they classmates, but they were also teammates in the particulars withheld] under-16 Basketball Team of which PW3 was the captain. PW3 further testified that the 1st Plaintiff, over the years, transformed himself from a good basketball player to an exceptional basketball player and was an integral part of the 2004 [particulars withheld]Basketball team that made it to the Nationals for the first time since 1997 by which time they had not even reached their peak as they were still in Form 3, and hence, we had not even reached our peak. In his evidence, a number of things made J quite exceptional on the basketball court such as:

i. His Physique. He was relatively tall, but his speed, long arm span & high leaping ability were his physical strong points on the basketball court. He played in position that usually had taller and more bulky players.

ii. His determination. He strived to make himself a better player, and this he clearly did. Moreover, while on the court, he would hustle for the ball so hard that more often than not, he would get the rebounds over those taller & bulkier players that he was matched up against.

iii. His Stamina. For the kind of intensity that the 1st Plaintiff used to play with, one would have expected him to tire out quite quickly. However, it was quite the contrary for him as he was one of the players who would play the most number of minutes in any given game.

iv. His Skill. He transformed himself into one of the most skilled players in [particulars withheld]and Kenya as a whole having mastered a skill in ‘streetball’ whereby he would execute fancy moves that confuse and even embarrass his opponent. As a result the 1st plaintiff was nicknamed ‘B’ which sounded a lot like some kind of medicine e.g. Hedex. As a result the joke was that “Maumivu yakizidi, tumia B!” In their context, it meant ‘When things on the court become too hard, call on B (JO)’.

119. According to PW3, the 1st plaintiff was an all-rounded student, talented in Sports (not only basketball, but also football, swimming, sprinting & rugby), music (guitar & piano), acting as well as academics apart from being a charismatic character. Some notable events according to PW3 included the following:

i. In the year 2004 Inter-House Drama Competition, the 1st plaintiff won Best Male Actor and it was from that point onwards that he became the most popular student in [particulars withheld]School and large crowds would gather around him at the music centre to hang out with him and listen to him play the piano or the guitar during his free lessons. He even composed cheer songs that he would lead during the rugby games.

ii. The 1st plaintiff swam for the ever successful [particulars withheld]Swimming Team from Form 1 (2002) and was always one of the main swimmers for St. John’s Red House during the annual [particulars withheld]Inter-House Swimming Gala.

120. Academically, PW3 stated that the 1st plaintiff was one of the top performers of their class (Form 1A – 4A). He remembered that when exam time drew near, he would disappear as this would be time for him to get away from all the attention and manage to read for the exams and that Biology, Music & Chemistry were his strong subjects.

121. As regards the incident the subject of this suit, PW3 testified that in 2005 during a basketball game against Highway School, J was hit across the face by an opposing player’s elbow and this seemed to have messed his nose. The next day in school, they got word that he was going to go in for a 5 minute operation to put his nose back in position and even said that he would be back in the afternoon. But that afternoon he did not show up in school. After that, the 1st plaintiff was not the same person. First of all, he was in a coma for a long period of time. When he did finally get out of the coma, though he could still remember PW3, he had a hard time remembering many people including his own classmates and his physical coordination was no longer the same as it had drastically deteriorated.

122. In his oral testimony, PW3 stated that the 1st plaintiff was heavily influenced by his parents and medicine looked as the best for him.

Pw4’s evidence

123. Dr Gerald Moniz testified as PW4. According to him, he held MBChB MMED and was a consultant in anaesthesia and intensive care having worked in the field of anaesthesia and intensive care since the year 1985; initially working at Kenyatta National Hospital and later in 1992 in full time private practice. It was his evidence that his work entails both dealing with difficult cases in the operating room as well as following them up in the intensive care unit; particularly for respiration and ventilation. He explained that the roles of the Anaesthetist in the theatre are the following:

i. To check that all the machines and monitors are working before bringing the patient into the room.

ii. To establish venous access and connect the patient to all monitors available before induction of anaesthesia. The minimum monitoring includes pulse oximetry; ECG; Blood pressure non-invasive monitoring every five minutes; Capnography (Carbon dioxide monitoring); Anaesthetic gases monitoring; Other monitors as deemed necessary for the particular type of surgery.

iii. Induction of anaesthesia when the whole team is ready, i.e. the surgeon and the nurse.

iv. Once the patient has been anesthetized and all the monitors indicate the patient is stable – the go ahead for the surgeon is given.

v. Once the patient is draped the monitors are to be viewed constantly and the alarm limits both upper and lower are set at the desired levels within normal range.

vi. If an alarm goes off, you must check that all the anaesthetic circuits as well as all the drugs and volatile agents are being delivered at the correct dose.

vii. As the surgery goes on the anaesthetic chart must be filled up. If for some reason it cannot be charted immediately, the records are available on the monitor. The chart must be complete at the end of the surgery.

viii. At the end of the surgery, the surgeon usually gives the go ahead for waking up the patient. At this time the volatile agents and sedative drugs are turned off and the patient is only given oxygen. Once spontaneous breathing has returned and is of good volume, the endotracheal tube can be removed. The patient is then wheeled out of the theatre to the recovery room to await full consciousness.

124. PW4’s comments on drugs/management used on the 1st plaintiff for anaesthesia as per the clinical notes were as follows:

a. Propofol 180mg- used which was in the correct dosage range.

b. Suxamethanoium 100mg- a muscle relaxant again used in the correct range.

c. Fentanyl 100mg- given intravenously, a very strong analgesic which is given within the correct dosage range.

d. Endotracheal tube was inserted but ETCO2 readings were noted although they were being monitored.

e. Halothane a volatile agent with strong depressant effects to the myocardium- 3% halothane for controlled ventilation IPPV is high. The normal dosage being o.5% - 1%.

f. Atropine, a drug which has been omitted, could shed some light in this case. Atropine o.6 is often used to counteract the vagolytic effect of drugs such as Suxamethanoium, Fentanyl and halothane all of which were used. Possibly if Atropine would have been used the heart would not have slowed down.

g. Noted that intravenous fluids were given and that should have counteracted any drop in blood pressure.

125. In PW4’s expert opinion, the damage that resulted on the 1st plaintiff might have been prevented by closer monitoring, lower dosage of halothane and use of Atropine at induction of anaesthesia. He however cautioned that one has to keep in mind that patients react differently to various combinations of drugs and it is only by close monitoring that remedial action can be taken before the heart stops completely. In his testimony, if an adverse incident does occur in the theatre, it is imperative that all the team members including the surgeon, anaesthetist and nursing staff do appraise the relatives at the earliest possible opportunity. It is also necessary to keep updating them of the progress and the expected outcome if known. They should be encouraged to ask any questions which have to be answered tactfully.

126. It was his case that the 1st plaintiff’s case was a relatively short surgical procedure and the anaesthetic drug combination was not unusual, although the dose of halothane was much higher than recommended. The use of Atropine could have been beneficial. Closer monitoring would have picked up the problem before the heart stopped completely. After cardiac arrest the whole team did effectively re-establish the heart to sinus rhythm within 5-7 minutes. The patient made some recovery in ICU, HDU and later in the ward then was discharged home.

127. According to PW4, while he knew the 2nd plaintiff as a colleague and had previously anaesthetised one of his children an elder to the 1st plaintiff, Mathews, who was involved in RTA. While he knew the 1st plaintiff as Mathews’ brother, he had not met the 1st plaintiff before this incident and when he was booked to give anaesthesia he did not know he was the one.

128. According to him, before starting a case he has to confirm whether the equipment is working as well as the settings, which is the duty of the anaesthetist, since with the help of the monitor whatever goes wrong can be corrected. According to his testimony, the electrocardiogram checks the heartbeat. Accordingly it is necessary to hear a beeping noise which must be set before the patient is put to sleep because sometimes you concentrate on the patient and hence one has to rely on the ears. It was his evidence that ideally the sound should be heard by the people in the theatre though you can lower the volume without switching off. Normally the first sound is the beeping and the second is alarm sound. So when the alarm rings the beeping will disappear as it gets drowned by the alarm sound. All monitors must have the beep and alarm sounds and the anaesthetic must confirm that they are working and are adjusted.

129. According to PW4, once connected, the patient is put to sleep then and only then is the Surgeon and Nursing team given an okay. PW3 explained that Halothane is a liquid put in a vaporizer which forms a vapour which goes to the lungs and the brain to cause consciousness. While the dosage given was 3%, it was his view that if someone is breathing on his own you can go to 2. 5% for a short period. However, if someone is not breathing on his own the dosage must be bought down to 1. 5%. In this case, it was his opinion that the 1st plaintiff was on the latter state. To him, 1. 5% and 2. 5% are extremes a part. He explained that Halothane does 2 things. It depressed the heart and cardiovascular system by lowering the Pulse rate to below 60 so the heart beats slowly. It also reduces the blood pressure as the blood vessels become wider. In this case the witness noted that before the operation the 1st plaintiff’s Pulse rate was lower, less than 60, and being athletic, he had a better reserve hence one had to be careful in using Halothane for such a patient. He further stated that though is used to raise the pressure rate back to its normal level, in the 1st plaintiff’s case, it was only used when the heart stopped completely.

130. It was PAW4’s opinion that since the 1st plaintiff’s pulse rate was already below 60 and three of the drugs used further lower the heart Pulse rate, he would have used Atropine. So in this case there was a potential problem as the three drugs lowered the Pulse rate which was already low. However, the Atropine’s cardio protective monitoring is key to any surgery.

131. He explained that all the people in the theatre work as a team with the surgeon being at the top of the table with two other nurses assisting. The moment an alarm goes on everybody looks at the monitor. However the anaesthetist is the one who tells the surgeon when to begin. However as the patient is covered, he has to rely on the monitor. If the blood is getting dark the surgeon informs the anaesthetist. At the end of the surgery the surgeon and scrub nurse stand back without leaving the room, and the anaesthetist starts the process of bringing the patient back. It is only after reversing the patient that they remove the gloves. So it is good practice for the surgeon to be around, though it is not written anywhere.

132. It was his view that it is rare for the heart to stop all of sudden but goes down gradually. By giving Atropine it can be prevented. He reiterated that a lower dosage of Halothane and Atropine could have been given.

133. Upon being cross-examined by Mr Githaiga, PW4 stated that his interaction with the case begun a day before the surgery when he was called by Dr Olende’s office though I did not know who the patient was. He explained that on the material day this was being done as a day care and the patient was to come at 9. 00 o’clock for surgery between 10. 00 o’clock and 10. 45 o’clock. He confirmed that he was supposed to be the anaesthetist until about an hour to the surgery. However at 9. 30 am he received a report of emergency from another hospital and rang Nairobi Hospital to ask whether the patient had reported and was told he had not. Accordingly, has he believed that anything could have happened including cancellation, he took another case in another hospital and upon reaching the other hospital he was informed at 9. 45 that the patient has arrived. At 9. 46 when he heard the patient had reported he spoke to Dr Otieno and he arranged with someone else to sort out the problem. He therefore denied that the change was all of a sudden. While reiterating that he changed because he knew that the patient was not coming as he was a player initially, he asserted that he was not an interested party because he did not know the patient.

134. PW4, however admitted that he knew the 1st Defendant well as a colleague, and she is a competent anaesthetist, to whom he has referred more than 20 cases. He however conceded that he was not present during the surgery and that his report is based on what he read on the anaesthetic chart. Accordingly, his evidence was an expert opinion.

135. It was PW4’s evidence that the surgeon is usually interested in the looking of the patient properly and will usually give the anaesthetist time to properly look at the patient without harassing the anaesthetist. He testified that there are 2 sirens constant beeping and the alarm and that it is unlikely that a person would miss the alarm if working properly and if properly set though it can be silenced. Normally, he said there are 6 people in the theatre on the average and that the chances that 5 people would not hear the alarm is minimal. One of those people is that theatre technician who is a member of staff of the hospital also called anaesthetic technician. The monitor belong to the hospital and the theatre technician is employed by the hospital but stays in the theatre the whole day. His duty is to attend to the machines and monitors which are supposed to record the procedure on the screen. This record, according to him, is not printed though it is available to be obtained but not after a long time but can be obtained soon after the operation. PW4 stated that he would have been in a better position if that record had been obtained and supplied. It was however his evidence that the anaesthetist procedure may not necessarily be the same since the drugs used may not be the same and it does not necessarily follow that the procedure is necessarily wrong.

136. Referred to page 151 of Plaintiff’s bundle A, PW4 testified that he knew Dr Kabetu,who explained that 3% halothane was alright for 10 minutes. Referred to the letter at page 71 from Nairobi Hospital containing a summary of the SAEC, he admitted that the report would have mentioned if there was something unusual about drugs used and that the drugs were the usual ones. However, there was no mention of irregular anaesthetic procedure or drugs.

137. PW4 explained that Halothane is a liquid in a metal container can and is a vaporizer administered to the lungs and its index runs from 0. 5% to 5%. The administration, according to him is continuous and they normally at beginning they set the Halothane at higher limit but once the patient is sleep it is brought down to minimum level necessary to maintain the sleep. In other words they titrate to effect. According to him, particularly when using other drugs in addition if a patient is breathing on his own 3% is acceptable but not if he is under controlled ventilation which means the patient is not breathing on his own and that the ventilation is pumping air into the lungs. It means the patient is paralysed. It was his evidence that the 1st plaintiff was under controlled ventilation, according to the chart. He testified that what determines percentage of Halothane are drugs used, in condition of patient and the ideal condition is ASA 1 in which the patient has no other complication, which was the case with the 1st plaintiff. According to him, Atropine but it is highly recommended, though if the heartbeat is above normal you don’t use Atropine. He further stated that you can use Atropine if problems develop during the procedure if monitoring is fully reliable.

138. PW4 stated that the anaesthetic is required to examine the patient before the procedure and make a decision on procedure to be applied. It is upto satisfaction of anaesthetist but normally takes 10 minutes unless something is noticed when you may do some other tests. However, the matter was left to discretion of the 1st Defendant. According to PW4, had he been in the 1st Defendant’s position, he would have been ready to proceed. Referred to Dr Mark Gacii’s statement, PW4 stated that he knew the latter who was a respected colleague in the profession and while his is statement was not wrong but was not comprehensive. While agreeing with Dr Kabetu’s statement as not being wrong, PW4 however said that he did not know whether they were aware this was controlled ventilation and if they were aware then the statement would be wrong.

139. Cross-examined by Mr Inamdar, PW4 disclosed that though he participated in the Board proceedings, was not aware of the outcome of the said proceedings though would not be surprised if the 2nd Defendant was exonerated. He also disclosed that though he was involved in the patient management after the incident, after he was retained by the 2nd Defendant and Dr Kwassah after the 2nd Plaintiff said he had no objection. However the 1st Defendant’s consent was sought the following day and she had no objection. According to PW4, the 1st Defendant directed that the medication be stopped and what was brought forward was the removal of the tube. According to him, this was a team work hence he was not aware of any breakdown in communication.

140. Referred to page 195 of Plaintiff’s bundle B he explained that he was describing induced comma to allow the brain to go down. According to him, the decision to do so was left to the medical practitioner and the 1st plaintiff was put on induced comma on Friday with instructions from the 1st Defendant that the drugs be stopped and the tube be removed in the morning. He however admitted that an earlier reversal was done about 6-9 hours earlier than initially planned though the decision to do so was a team decision as under the 1st plaintiff’s condition, it would not benefit him to wait for 8 hours. He however admitted that people may disagree with this view because it is not cast in stone.

141. He reiterated that he had been retained the day before the operation took place for an operation which was slated for 10. 00am. However at 9. 45 am, he was not at the Hospital. When he rang the Hospital at 9. 30 am he was informed the patient was not at the Hospital. According to him because this was a day case he was not present at 9. 30 am because in such cases, the patients come one hour earlier. He therefore rang to confirm if the patient has come because in most cases patient don’t turn up. He admitted that between 9. 30 am and 9. 45 he had accepted another case and this according to him, was not unethical because the latter case was an emergency and surgeries can also start late.

142. Upon being informed that the patient had come, he called Dr David Otieno, whom he found with the 1st Defendant who in his view was competent to replace him.

143. In PW4’s evidence, all the reasons he gave as to why something could have gone wrong were all anaesthetic issues. It was his evidence that nasal reduction is a 7-10 minutes operation and in such a procedure the surgeon is looking into the nose. While denying that the surgeon should be responsible for looking at the monitor, he stated that if there is an alarm he should hear unless there is bleeding. To him, it is not the duty of surgeon to ensure patient is hooked up but he ought to give the anaesthetist time to properly hook up the monitor and normally waits for go ahead from the anaesthetist. According to him, the surgeon concentrates on the nose and since the patient is fully draped you cannot see the patient going blue unless he is light skinned.

144. Cross examined by Mr Kiragu, PW4 stated that the anaesthetic report in 3rd Defendants bundle page 83 is filled up by the anaesthetist at the hospital and in this case it was completed by the 1st Defendant. Before the patient is anesthetised, he stated, the monitors are connected to the patient by the technician under supervision of anaesthetist. As time goes on, the oxygen reading is put down by anaesthetists but the technician does not sign. Referred to the other part, he stated that it records the dots which in this case was 108 meaning 108 beats per minute. According to him, the chart would indicate either the chart was working or if not the anaesthetist come with the figure. However, it does not say anything about the alarm. According to him, once you confirm that everything is working you remove one finger to set off an alarm. If this is not it could cause problem. This process is however not recorded on the chart. In his view, if the monitor is not working you do not proceed with the operation until it is replaced. He testified that the anaesthetist ought to check whether the machines are working before bringing the patient because you have to check on other processes which takes about 1-2 minutes. While the check up is not usually recorded, it was his evidence that they do check the blood pressure, heartbeat and Pulse rate and the machine that records the oxygens concentration is the pulse oximeter. According to him the machine should be checked at the beginning and at the time when the alarm goes off because at the beginning the ECG will tell you the heart rate and rhythm of the heart and the blood levels is monitored at intervals of 5 minutes from the starting and this is noted down. In this case the blood pressure was 100/16 which was normal blood pressure. Whereas carbondioxide is also measured, monitored and recorded, in this case there was no record. This is so because it tells you the adequacy of ventilation so you must be sure that you are not under or over breathing. In this case it could not be said whether the 1st plaintiff was getting adequate carbondioxide. With respect to anaesthetic gases, PW4 testified that the machines which were in use could not monitor the same though new machines do so. However, the responsibility to monitor all these is primarily on the anaesthetist.

145. It was PW4’s evidence that in this a case such as this where the procedure takes about 5 minutes it may not be necessary for the other monitors since a procedure such as this one requires that you be with the patient for a maximum of 5 minutes in which case you would fill in the pre-operative chart. However, if there are issues one may have to take longer in the history. In this case the 1st plaintiff’s pulse rate was slightly below normal meaning that he was athletic. The witness however noted that while the initial pulse rate as taken by the nurses was 58, the 1st Defendant recorded it in the pre-operative chart as 108 which was unusual. Since the chest was clear, it indicated that the 1st plaintiff was a very fit patient who ought not to have been unduly affected. It was however his evidence that if you are going to give muscle relaxant to reduce further heartbeat, then it is advisable to also administer Atropine. He however admitted that there was nothing wrong with the choice of drugs used as long as they were administered in the correct dosages. However some patients may react if all the drugs are used.

146. According to PW4, Halothane and is one of the drugs considered essential by the World health Organisations. He also stated that Saxomethalium is also widely used though it is not on the list. PW4 however insisted that Atropine should have been used at the induction stage in order to increase the heart rate in order to avoid cardiac arrest.

147. According to him the Halothane index is between 0. 5% to 5% and that if you are inducing a child you use only Halothane as a sole agent hence you may need a higher dose for a short period. However for all children coming to the theatre, if you are going to use Halothane you have to give Atropine and Saxomethalium and this was the position since 2005. Ask about Dr Gacii’s opinion, it was his view that, the statement was incomplete because it did not indicate whether or not the 1st plaintiff was ventilated. However from the anaesthetic chart, the 1st plaintiff was ventilated which meant that the machines were breathing for him as the method indicated was IPPV hence it would have been best to use Atropine.

148. In re-examination, PW4 clarified that he called the 1st Defendant to handle the case and not to work for him. He stated that since he did not go to the theatre that day he could not take responsibility as he and the 1st Defendant were independent anaesthetists. He testified that his physical engagement with the 1st plaintiff was on Sunday at which stage the problem had occurred hence his report has to do with the theatre and not the ICU. Referred to the PIC Report, he confirmed that Dr Kabetu was of the view that probably 3% Halothane was too high for the procedure. Refereed to the anaesthetic chart, he stated that whereas it was indicated that the volatile agent used was 3% Halothane, there was no indication that the same was reduced.

PW5’s Evidence

149. PW5, Dr Erasus Olonde Amayo, a consultant neurophysician in his statement which was adopted as evidence stated that on the 11th February 2005, he was asked to see the 1st Plaintiff who had cardiac arrest in theatre while undergoing an ENT operation as a day case at Nairobi Hospital. According to him, he had been successfully resuscitated with return to the heart beat and blood pressure but was in the intensive care unit intubated and paralysed. When PW5 reviewed him at around 10pm, a complete neurological assessment could not be performed due to sedation and paralysis and he and he advised that he remains sedated for up to the next 48 hours and was to be reversed on Sunday 13th February 2005.

150. PW5’s first neurological assessment was therefore made on the 14th February 2005 at 7am and in his conclusion stated that the 1st plaintiff had significant ischaemic anoxic cerebral injury, and that the outcome was difficult to predict at the material time and further that he anticipated significant neurologic deficit. However about 1 year later, PW5 did a follow up review of the 1st plaintiff in May 2006 when I found the following:

i. He was oriented in place and person but not time. He had a timid look and poor concentration.

ii. His past memory was reasonable but with a lot of gaps. His short term memory was moderately impaired. Immediate recall was poor.

iii. Respecting intelligence, he was not quite familiar with the current events going on in the country, his abstract thinking was impaired and could not even complete simple proverbs.

iv. He had made reasonable improvement generally but still had a major cognitive emotional and psychological deficits.

151. In February 2008 PW5 did another review after which he prepared a medical report dated 7th February 2008 in which he made the following observations and conclusions:

i. J was oriented in space but could not quite remember what day it was but got appropriate answer to the time. He could not recall having seen me before although I happen to be one of his doctors.

ii. J had poor immediate recall. His long term memory was poor. His abstract thinking including interpretation of proverbs was markedly impaired.

iii. J’s intelligence was assessed as below the expected for his age and previous educational background.

iv. J had improved but remains with major neurological and neuropsychiatry defects.

152. In his oral testimony, PW5 reiterated the foregoing and stated that when he first saw the 1st plaintiff in the ICU, he was comatose and intubated and though his vitals such as blood pressure were stable, he was paralysed though was breathing on his own. On 27th February of the same year PW5 examined him in the High Dependency Unit and found that he had been extubated but had a gaze which was not fixed and could not obey commands or respond to anything verbal, was agitated and not focused. While he became more focused, he still could not obey commands. However by the time of his discharge he could obey a few commands but with poor focus with abnormal movements and was still agitated despite being on medication. His movements were purposeless an indication of brain injury. While by then he could walk, talking was still an issue and was on care. After some follow ups PW5 in May 2006 noted that he had made some improvements but still had poor orientation with memory gaps. PW5 explained that memory is long term, short term and working. While the long term was better than the other two, his immediate recall was poor. Though he was slightly aware of the events in the country, he could not complete simple programmes but there was ample improvement.

153. In February, 2008, when PW5 saw the 1st plaintiff, he had marked improvement and could remember and answer appropriately though his memory was abstract and his thinking was poor and had a lot of arguments with the father. He had developed emotional changes. So despite memory improvement, his intelligence remained poor. Though he had improved physically, he was spastic or stiff on one.

154. The day before his testimony, PW5 again say the 1st plaintiff who, despite his improvement, still had problems with the memory and though could remember, the Al Shabaab massacre , his intellect still remained poor.

155. PW5’s diagnosis was that the 1st plaintiff had suffered lack of oxygen and blood in the brain which is fully dependent on nutritional blood such as glucose and oxygen. Apart from that some areas such as the part of thinking and memory are susceptible to lack of blood and if the blood is lacking, some cells die while some get injured and though may recover, definitely there is loss of brain cells which do not multiply. While new circuits can be formed, new cells do not grow. It is these circuits that are the basis of improvement. According to PW5, the cells which did not function before are then recruited though they cannot function as well as before. However, the more complex the subject, the more difficult for the 1st plaintiff to understand though the day to day activities he can comprehend. PW5 therefore concluded that there was complete damage to the1st plaintiff despite improvement. While he can function normally in the house, when subjected to intellectual challenge, he will not be able to perform hence the chances of him becoming a doctor are very remote.

156. According to PW5, the 1st plaintiff cannot definitely become a pilot and will just be able to do a few functional things. While his memory may become independent in terms of cooking etc, the 1st plaintiff, according to PW5 is not yet independent. However in terms of transacting business, he cannot do so and he is dependent on other people. It was PW5’s hope that he does not get another disease though that cannot be ruled out.

157. According to PW5, the 1st plaintiff may develop emotional instabilities and his status has an impact on the parents who may require emotional counselling apart from financial component and expectation which may result in family instability despite the fact that they are resilient.

158. Cross-examined by Mr Githaiga, PW5 stated that he was a well experienced neurologist. He admitted that the manner a patient is handled in the ICU can affect his outome in terms of mental health and that it is prudent that one team of medical practitioner handles the patient in the ICU.

159. Asked about reversal, he stated that it means to move from paralysis to state of consciousness and has two purposes. One is to assess the state of the patient and that reversal moves to the next stage because the handling is by a team. Accordingly, the manner a patient is handled in the ICU may affect his mental fitness. He however clarified that it was not possible to say that the manner in which a patient is handled in the ICU and theatre can affect the patient, but that by the time the 1st plaintiff left the theatre, the injury damage had occurred. The most important thing, according to PW5, is how long he had the cardiac arrest. It was however hard to say with certainty the injury that occurred in the ICU and in the Theatre since the damage depends on how long a person was under cardiac arrest and the age.

160. According to PW5, newborn babies are better able to recover from it than older people though recovery depends on a number of factors, the duration of cardiac arrest.

161. Cross-examined by Mr Inamdar, PW5 explained that as soon as he got involved in the case, Dr Moniz, whom he knew was in support system. The other doctor who came in, according to him, does not normally operate in the ICU. It was his evidence that from what he gathered there were conflicting reports on the reversal between the 1st Defendant and Dr Moniz, with one preferring a later reversal while the other preferred an earlier reversal. PW5 however stated that it is not necessary that early reversal can cause damage since now even putting a patient under a coma does not make any difference. While early reversal can cause further damage, this depends on when.

162. It was his evidence that at the moment, the 1st plaintiff cannot be employed because he is dependent on other people and it is very difficult . In future, however, he can do rudimentary low level intellectual tasks such as counting people. Though manual labour is possible, he has a bit of instability and due to his memory loss he can forget what to do.

163. While appreciating that between 2008 when he examined him and 2015 when he testified, a period of 7 years, there might have been improvements, given the 1st plaintiff’s state of improvement, such improvement would become less. While he can bathe himself and know current events, his improvements would be gradual and will stop. While he could improve, the question was capacity of such improvements. While appreciating that a neuropsychologist may do a better job and make a better report, PW5 noted that they are few and he was uncertain whether the 1st plaintiff would develop emotional instability though there was a risk he could do so. In terms of probability, there is a risk that this could happen and the instability may lead to anger and intellectual incapacity.

164. In cross-examination by Mr Kiragu, PW5 stated that though he did not examine the 1st plaintiff after 2008, he saw him informally the day before his testimony. According to PW5, due to the 1st plaintiff’s state of memory, it would be difficult for him to be a sports commentator which requires high intellectual capacity and the 1st plaintiff had recall problem. However on the day of the informal examination, PW5 said that the 1st plaintiff remembered him, which was an improvement. He could also remember Al Shabaab, hence his short term memory was better but still poor. However his long term memory was much better and he could remember the school he went to. While appreciating that there are rehabilitation centres, there are no facilities in this country.

165. While PW5 stated that he had perused the 1st plaintiff’s file, he was however unable to express opinion on the circumstances in the theatre save that he had a cardiac arrest. He however said in the theatre it is a team though the team is under the Physician in charge and the support such as Neurologist. It was his evidence that since the 1st plaintiff was a teenager when he suffered cardiac arrest, he had better prospects of recovery than an adult.

PW6’s evidence

166. PW6 was Dr MMO, the 3rd Plaintiff herein, was the 1st plaintiff’s mother and the 2nd plaintiff’s wife. She also relied on her witness statement as part of her testimony.

167. According to her, she is a Doctor of Chiropractic in private practice on Rose Avenue in Hurlingham, Nairobi. In the absence of a Chiropractic Board, she practices under a letter of permission from the Ministry of Health. It was her evidence that the 1st plaintiff was born on 13th December, 1987.

168. According to the 3rd plaintiff, on or about the 8th of February 2005, she arrived home from work and found the 1st Plaintiff in the study doing his homework and the 1st plaintiff told her that his nose was broken during a basketball match at [particulars withheld]School, Nairobi. The 2nd Plaintiff then informed her that he would take him to an ENT specialist. On the evening of 10th February 2005, she was informed that the following morning, the Plaintiff was going to be admitted in the Day Surgery Unit (DSU) of Nairobi Hospital, and Dr Chimmy Olende-Omamo, the 2nd Defendant in this matter was to be the surgeon while Dr Gerald Moniz was to be anaesthetist. On the morning of February 11th 2005, the 1st Plaintiff and her prayed together before they parted ways and she told him all would be well and that they would see each other in the evening. However, while she was busy with a patient at her clinic at about 12. 45pm or thereabout, on 11th February 2005, she shockingly received a call from the 2nd Defendant informing her that the 1st Plaintiff was in ICU (Intensive Care Unit) and that he had suffered Cardiac arrest. She immediately left for the ICU at the 3rd Defendant’s hospital where the 2nd Defendant told her of the events that transpired in that when she was de-gloving, it was noticed that the 1st plaintiff’s lips had turned blue, that he had no pulse, that he had suffered cardiac arrest. The 2nd Defendant informed her of the resuscitation, the rush to the ICU and the paralysis, hence the respirator. Wondering where Dr Moniz was, she was told that there had been a last minute change due to the 2nd Defendant’s late arrival and that the 1st Defendant had been the anaesthetist. However the 1st Defendant did not accompany the 2nd Defendant and the 2nd Plaintiff when the 3rd plaintiff met them in the ICU.

169. According to the 3rd plaintiff both the 2nd and 3rd plaintiff were informed by the ICU staff, that after the 1st Plaintiff suffered hypoxic brain damage he was paralyzed and put into deep sedation as is usually done with such cases and that he would remain in this state for the next 24 hours and reversal would be attempted on the 12th of February 2005. However, the ICU staff informed them that this was postponed to Sunday, 13th February 2005 at 3:00 p.m. On the said Sunday, 13th February 2005 at 3:00 p.m, the 2nd and 3rd plaintiffs went to the ICU of Nairobi Hospital and found Dr Charles Chunge and Dr Zipporah Thagana already there to visit the 1st Plaintiff. The 3rd Defendant’s doctor, Dr Thanga was trying to reverse the 1st Plaintiff from the paralysis and deep sedation he had been put into, so that he could breathe on his own, but she said she was not getting any response. This made the 3rd plaintiff apprehensive that the 1st plaintiff would not wake up since according to her, not being able to breathe on his own meant to me that he was possibly dead. Worst of all, no one knew what had gone wrong in the theatre since none of the Defendants in this matter could give them any answers. The 3rd plaintiff had not even seen and did not know the anaesthetist who was looking after the 1st plaintiff since she had not gone to see us at all. The 3rd plaintiff therefore concluded that she did not care because the 1st plaintiff had turned blue in her hands, yet she did not have anything to say.

170. According to the 3rd plaintiff, DrThanga, who was the 3rd Defendant’s staff doctor in ICU on that day, 13th February 2005, did not seem to know how to perform a reversal and as late as 5pm the 1st Plaintiff had not responded as expected and she was concerned. The nursing staff alerted her regarding the dose of sedation. According to the 3rd plaintiff, of concern to them, the parents of the 1st Plaintiff and Dr Chunge and Dr Zipporah Thagana, was the absence of the 1st and 2nd Defendants at this critical moment when their patient was undergoing a delicate and potentially dangerous procedure. Upon being called by the 2nd Plaintiff, 2nd defendant came ad expressed surprise that the 1st defendant was not present in the ICU. As, the 1st Defendant could not be traced to assist in the reversal of the 1st Plaintiff, because her telephone numbers were switched off, Dr Kwasa, a neurologist, was contacted on phone, at the request of the 2nd Plaintiff, and he instructed Dr Thanga on the correct procedure she should apply during the reversal. After this, the 1st Plaintiff was able to respond and began to breathe.

171. Because the 1st defendant could not be traced, the 2nd Plaintiff made a request for Dr Moniz to be contacted and consulted and Dr Moniz arrived shortly. After attending to the 1st Plaintiff and ascertaining he was breathing regularly, Dr Moniz urged them to pray that the 1st plaintiff would continue to breathe, but that they would know more of the 1st plaintiff’s condition upon waking up fully. The following day, Monday 14th February 2005, the 1st Plaintiff was moved to the High Dependency Unit (HDU) but prior to leaving ICU the 2nd Plaintiff informed the 3rd plaintiff that he had spoken to the 1st Defendant on the ICU phone by her request who informed him that she was not at the reversal as she had done her best and hung up the phone.

172. In HDU, the 1st Plaintiff was awake and breathing with an oxygen mask. He could open his eyes, but could neither speak nor move his limbs. According to the 3rd plaintiff, the 1st plaintiff’s tragedy caused undue strain in the home relationships since everyone in the home felt the brunt of it. Suddenly the family was not stable anymore and matters were not made any easier for lack of answers to give to the children. According to the 3rd plaintiff, they took home a 17-year-old boy in diapers. While his 7-year-old younger brother, Lenad, found it fun to look after him initially, as he grew older, Lenad, could not understand why his big brother was behaving strangely since the 1st Plaintiff’s behaviour had become more of an embarrassment and that which was once a tight relationship between them, became very strained.

173. The 3rd plaintiff stated that the 1st Plaintiff doesn’t understand or even remember what happened to him and it has been very difficult for the 1st Plaintiff to accept that he has suffered brain damage, and for Lenad to cope with that fact. As parents, she stated that it is not easy managing such situations. She averred that their nephew James, who was working for them, painstakingly looked after the 1st Plaintiff as a minder (helper) during admission at the 3rd Defendant’s hospital and thereafter day and night when at home. James would bathe the 1st Plaintiff, change his soiled diapers, wash wet bedding, feed him and teach him how to walk, talk and generally look after him all day while the parents would do the same in the mornings, evenings and weekends. Later, James would accompany the 1st Plaintiff to physiotherapy, speech therapy and occupational therapy. It was disclosed that while the 1st Plaintiff continued to receive many visitors at home, it was appreciatedly sad when his two close friends from school, Philip Moturi and Ian Ogutu would request their parents to pass by so that they could visit the 1st Plaintiff before they went home. They would arrive in their smart [particulars withheld]School uniform and it was depressing for them to see their classmate and basketball teammate in the condition he was.

174. According to the 3rd Defendant, despite their request to the 3rd defendant to give them an explanation about what happened to the 1st plaintiff, they had said they would investigate but months passed by without any explanation and not knowing why, they had this tragedy in the family was almost worse than the tragedy itself. The Medical Audit Committee (MAC) of the 3rd defendant had attempted to have the 1st and 2nd defendants explain to them what had happened to the 1st plaintiff in the DSU of the 3rd defendant but the meeting did not yield any satisfactory explanation. According to the 3rd Defendant, it was at the said meeting, that she, for the first time was setting her eyes on the 1st defendant. However, after numerous, yet unfruitful, enquiries regarding a report of findings from the 3rd Defendant, they received a demand note from the 3rd defendant in which the 3rd defendant denied culpability. Thereafter, they made a decision to take the case to the Medical Practitioner’s and Dentist’s (MPD) Board to assist them in finding out what happened to the 1st plaintiff as they suspected an element of negligence.

175. According to her, the Standards Audit and Ethics Committee (SAEC) of the 3rd Defendant finally summoned the 2nd and 3rd Plaintiffs to the 3rd Defendant’s boardroom in order to give them their report of findings and they were accompanied by Dr Charles Chunge. On that September 21st 2005, they were given a verbal report and later received a very brief and concise one-page summary of their conclusion. The CEO of the 3rd Defendant had stated during the meeting that they would not furnish them with a report that included all they had disclosed verbally due to legal implications. Dissatisfied with the report given the 1st and 2nd Plaintiffs determined to follow through with the complaint to the MPD Board, who also carried out their own investigations into the matter.

176. In the meanwhile they continued to nurse the 1st plaintiff and sought whatever help they could for him as the brain damage led to an episode of manic depression, during which time they feared for the 1st Plaintiff and the lives of their house help. They had to hide all knives in the house, which he would wield in a very hostile manner as if with intent. Accordingly, the 1st plaintiff had to be incarcerated in a psychiatric medical institution for a time.

177. According to the 3rd plaintiff, the hearing the matter, the MPD Board’s tribunal hearings into this matter started on the 8th of October 2007 and this is when for the first time they saw the 3rd defendant’s SAEC documents which documents contained information they had requested and waited for, for so long but had been hidden away from them. The 2nd and 3rd Plaintiffs sat up all night to look at the documents prior to the tribunal proceedings of the next day during which time they had mixed emotions; some kind of relief and anger at the same time. Relief that they were finally getting some answers to their many questions, but angry that despite the suffering that they were undergoing, it had taken years before they could get this information.

178. According to the 3rd plaintiff, it was therefore with disbelief that they learned of the appeal against the MPD Board’s ruling by the 1st defendant, despite all the evidence adduced at the proceedings of the tribunal. In the face of the SAEC and MPD Board’s findings, the 1st defendant still maintained that she did he best, which according to the 3rd Defendant was showed that clearly there was no remorse in the mind of the 1st defendant. Neither did she care that the plaintiffs were suffering and living with the negative, brain damaged result of her “best” work.

179. During these trying times, when she could, the 3rd plaintiff would take the 1st Plaintiff shopping and to church though he had so many phobias at first and would cling to her skirt like a 2-year-old. The 3rd plaintiff could not let him out of her sight, lest she lost him because of the damage to his memory. He couldn’t use a mobile phone because he had forgotten how. Later his friendliness got the better of him. He would go round shaking everyone’s hand as if he knew them. Quite embarrassing to his siblings and herself and unnerving to those who didn’t know or understand him. As the 1st plaintiff improved a little, because of his love for music, they went to [particulars withheld]School annual musical. While he could recognize the place and many of his friends, he could not understand why many of his juniors were wearing black perfect ties. He kept asking if he had “cleared” form 4. He did not know, nor did he know what year it was. As a mother, the 3rd Defendant could see the anguish and bewilderment behind the 1st plaintiff’s questions and tears would well in her eyes. According to her, the 1st plaintiff is still baffled that some of his classmates are in university or have finished university and are working; yet some engaged to marry. At one point, they made an attempt to see if the 1st Plaintiff could go back to school and enrolled him for mathematics and English classes at DALC, but after a couple of months, the teachers were frustrated at his inability to remember and advised against continuation. They even tried a special education institution and whereas they believed they could help him after some basic tests, the 3rd plaintiff feared for the younger children and pulled him out after two days due to his outrage at “loosing” his shirt which he had put in his desk and forgot. As a result he striped shouting all over the school and to date, more than seven years later, the 1st Plaintiff has not been able to go back to school.

180. The 3rd plaintiff disclosed that on Saturday 15th May 2010, the first plaintiff was driven to the railway club adjacent to Uhuru Park where there was a scheduled basketball tournament that she thought he would enjoy watching. At about 2:30 p.m. her neighbour’s house help went to inform her that she had seen the 1st plaintiff being beaten by police on the TV. Failing to reach the driver on phone, the 3rd plaintiff immediately called the 2nd Plaintiff to inform him about the shocking news, and he also confirmed having seen the same incident on the TV at his office and had called the driver who had informed him that the 1st plaintiff had bolted out of the car and run into the crowd at Uhuru Park when they had stopped at the gate of the club. That the basketball match they were going to watch had been cancelled due to the launching of the YES campaign by the president and the prime minister at Uhuru Park, which is just next door. Tears flowed freely when the 3rd plaintiff learned of the 1st Plaintiff’s beating and she wondered if they had injured him and had had visions of returning to hospital. After searching, they found the 1st Plaintiff incarcerated at the Central Police Station where they were informed that the presidential police had arrested the 1st plaintiff because of approaching the presidential dais in a loud and rowdy manner saying he just wanted to shake the president’s hand. The policemen at the station also said they were baffled by the 1st plaintiff’s behaviour because they could not smell any alcohol in his breath or see any sign of drug use in his pupils. However, no officer was available to release the 1st plaintiff. For hours, they waited, while the 1st plaintiff was in the cells, irate shouting at and arguing with the OCS, who, oblivious of the possible repercussions, only refrained from striking the 1st plaintiff because of the pictures the 2nd and 3rd plaintiffs showed him of the 1st plaintiff while at the hospital and newspaper clippings of the tribunal case.

181. According to the 3rd plaintiff, it has been seven long arduous years since the 1st plaintiff’s brain was damaged during which time the 1st plaintiff and the family have gone through and are still going through untold negative experiences and suffering because of the negligent practice that led to hypoxic brain damage of the first defendant.

182. The 3rd plaintiff averred that during December 2004 school holidays, the 1st plaintiff had been determined to get into top form physically and mentally. He would do several kilometres on his bike, use the treadmill in the house, set on the most difficult course and together they would go swimming regularly. The 1st plaintiff wanted to win at the swimming gala in February 2005. He needed to be faster than the only two boys who could beat him at [particulars withheld]School. He was focused. He also wanted to continue to upset some stars in the National Armature Swimming Association as he had done in Mombasa and in other competitions. He also wanted to be fit enough to win against their [particulars withheld]School basketball team rival, St. Austin’s basketball team, so that his school team could go to the national competitions in 2005. A week or so before his admission to the 3rd defendant’s hospital in February 2005, the 1st plaintiff had appeared on television as a star basketball player and Young Achiever on KTN’s “Club Kiboko” program. She stated that the 1st plaintiff and herself had been talking and projecting into the future. As a form four candidate, he had made a study timetable so that he balances his basketball and studies in order to excel. He was even thinking of trying to get a basketball scholarship in USA while studying to become a Medical Doctor like his father. Not only may have these dreams been dashed, but the 1st plaintiff being the first born child and his brain damage, leading to gross abnormal and sometimes embarrassing behaviour has also negatively affected the siblings who come after him.

183. In her oral evidence in chief, the 3rd plaintiff reiterated the foregoing and testified that she had 3 other children, the 1st plaintiff being the eldest. She stated that it was hard to believe the 1st plaintiff’s injury because he had worn his uniform and intended to proceed to school, having just joined form 4 When she saw the 1st plaintiff after the incident, he was lying lifeless breathing through machines While the 2nd Defendant has attempted to make contact with the family and visit them at home, the 1st Defendant did not do so. According to the 3rd plaintiff whereas the 1st plaintiff had the brains and ability to be anything, a musician, a doctor, he is now a shell. I withdrew him from the school. According to the 3rd plaintiff, the 2nd plaintiff, the 1st plaintiff’s father, still believes he was responsible for taking the child to the hospital. It was the 3rd plaintiff’s evidence that the 1st plaintiff is unable to go out by himself, so he still needs somebody to go out with, in this case James, the nephew. The 3rd plaintiff could not in the foreseen near future see the 1st plaintiff as an independent man and asks where his friends at [particulars withheld]are and whether he will ever marry and get children. The 3rd plaintiff was therefore apprehensive that she would have to continue looking after him.

184. In cross-examination by Mr Githaiga, the 3rd plaintiff stated that she did not know the 1st Defendant before and never heard anything from her though she had no idea that she had anything against the plaintiffs’ family. She however agreed that the team in theatre is quite a number and the 2nd defendant was the spokesperson of the team. She however insisted that despite that there must be humanity and that the 1st defendant was under the care of the 1st defendant who had a responsibility as part of her duty.

PW7’s evidence

185. PW6, Dr Charles Nakhungu Chunge, a consultant Microbiologist, a specialist in Tropical and Travel Medicine, testified that he knew the 1st plaintiff, a son to the 2nd and 3rd plaintiffs who were his professional colleagues. On 11th of February 2005, he received a phone call from the 2nd plaintiff informing him that his son, the 1st plaintiff, had been rushed to the Nairobi Hospital Intensive Care Unit (ICU) following a cardiac arrest in theatre while undergoing a procedure to reduce nasal bone fracture which had been sustained at School recently. PW7 immediately went to the ICU and found the 1st plaintiff unconscious and already hooked onto a ventilator machine. According to him, he did not find any family members there but the ICU staff tried to explain to him what had happened. He then called the 2nd plaintiff to inform him that I had seen the 1st plaintiff in the ICU and that he was sorry about the state of affairs. The 2nd plaintiff informed him that he had been told that the boy would be under that heavy sedation for 24Hrs after which they would reverse him so that he can breathe on his own. Later he learned from the 2nd plaintiff that the period had been extended to 48Hrs; and specifically that the reversal was to be done at 3pm on Sunday the 13th Feb, 2005.

186. On that day, he arrived at the ICU at around 3pm in the company of Dr Zipporah Thagana who was a consultant paediatrician and their family friend and found the 2nd plaintiff already there. According to PW7, their aim was to give moral support to J’s family at that trying moment of reversal from the deep sedation since this is when it can be known if a patient who has suffered brain damage will wake up or is dead. According to him, an ICU staff called Dr Thanga was attempting to do the reversal of J but was definitely having difficulties with the procedure. The theatre nurses had concerns about the dosage of the sedation drug which was running at 3mg per hour and she was not sure to what level she should reduce this sedation because the 1st plaintiff was not responding as expected. At that moment PW7 asked her in the presence of the 2nd plaintiff if she needed help and she agreed since both the 1st and 2nd defendants, who were concerned with the 1st plaintiff’s management were not present in the ICU. PW7 then telephoned the 1st defendant through the telephone number left in the ICU but it was off air. He then telephoned the 2nd defendant from her number which he knew and she answered and expressed surprise that the 1st defendant was not in the ICU and promised to come straight away which she did promptly.

187. After consultation with the ICU sister they traced the whereabouts of the neurologist, Prof. Amayo, if he could be of help but they were informed that he was away and had left Dr Kwasa to stand in for him. The 2nd plaintiff then telephoned Dr Kwasa and informed him about the difficulties being experienced by Dr Thanga during the reversal procedure of J. DrKwasa then spoke with Dr Thanga on telephone and advised that sedation must be reduced urgently so that the patient can be able to wake up, which was done and indeed after a while the 1st was able to respond by breathing spontaneously. Being unhappy about the whole procedure and the anxiety created by such a delicate process being performed the wrong way and thus giving the impression that their son was possibly dead, the 2nd plaintiff requested the ICU nurse to call Dr Gerald Moniz, a consultant anaesthetist to come and review the situation and help out whatever might still be pending. According to PW7, on the 9th march 2005 around 10:30am, in the MCF ward of Nairobi Hospital when he was conducting his rounds, he saw the 2nd plaintiff by the bedside of his son cleaning the 1st plaintiff’s. He then approached them and inquired how the boy was doing and the 2nd plaintiff showed him the mouth full of thrash and also said that J had been getting more restless over the last few days. He was by now in his semi-conscious restless condition rubbing his lower abdomen and swinging his legs from side to side as if he was in pain. PW7 then asked the 2nd plaintiff the lower abdomen by palpation and also to check on the state of the urine coming out through the catheter. The 1st plaintiff reacted as in severe pain when the lower abdomen was palpated and they noticed that the urine was very cloudy (turbid) which is usually a sign of infection. At this point they got alarmed called the ward nurse to show her the dirty urine and advised her to call the doctor, report the finding and take instructions. She called then Prof. Amayo in their presence who authorized the removal of the catheter and collection of urine samples to be taken for laboratory test. When the catheter was being removed, they noticed urine with pus. Upon inquiring from a nurse about the results of the laboratory tests on the urine samples, PW7 was informed that pathogenic gram-negative bacteria called Citrobacter freundiihad been isolated and the patient had been put on appropriate antibiotics.

188. PW7 further disclosed that on the 21/0/2005, he accompanied the 2nd and 3rd plaintiffs to a meeting at the Nairobi Hospital convened to be given the Standards Audit and Ethics Committee (SAEC) report which had been going on and was now completed. After sitting for the entire session they were given a report which was like a summary and which mainly blamed what happened to the 1st plaintiff on lack of adequate intra-operative monitoring by those concerned.

189. In his oral evidence, PW7 reiterated the foregoing and added that he did not examine the 1st plaintiff as he was in his clinic on 11/2/05. He however disclosed that he was the 2nd plaintiff’s best man. According to PW7, Dr Thanga who was trying to wean off the 1st plaintiff was an ICU doctor who works alongside consultants and she said she had been given unclear instructions by the 1st defendant, who was absent to wean off the patient and reverse the patient and had not been told to reduce some heavy drugs. She however hoped, the 1st defendant would be there. According to PW7, by the time he left after the reversal, the 1st plaintiff had not been completely revived, so he did not know what happened when Dr Moniz arrived. According to PW7, the infection of the 1st plaintiff was due to the fact that it had been left there for a little longer without monitoring.

190. It was PW7’s conclusion that mistakes were made during the theatre process such as inadequate monitoring which was the origin of the problem.

191. PW7 testified that he knew the 1st plaintiff before the incident as he was attending same school with his children and was a normal boy, sporty, fit and strong. He was however unaware of his academic record. When he saw him a month before his testimony, the 1st plaintiff’s life had been changed totally compared to his peers and needed care and supervision all the time due to some mental incapabilities. He could not be trained to speak sensible or go anywhere on his own. Though he admitted that he was not a neurologist, it was his assessment that the 1st plaintiff had achieved the best he could and left on his own, he is prone to accident and injure others.

192. In cross-examination by Mr Githaiga, PW7 admitted that he was a friend of the plaintiffs’ family as well as the best man in their wedding. According to him, on 13/2/15, the 2nd plaintiff called him as a friend and colleague who works at the hospital since he is a consultant at the hospital and could reach the place quickly and give some advice. In his belief, he was called as a friend first and foremost since in medical profession when one is in such a situation you call a colleague who can have access of the place. To him this was normal human reaction.

193. It was his evidence that whereas the anaesthetist lays down what is to be followed, the doctor must write down for junior doctor who works in the ICU to whom the consultant must give instructions otherwise things can become chaotic. Sometime the consultant can be physically available or just give instruction depending on the competency of the doctors. It was his evidence that most likely there would have been a plan of action and that nobody walked in and interfered with the laid down procedure.

194. He reiterated that as a friend and consultant in the Hospital they were observing the reversal when they noted that Dr Thanga was struggling and was not comfortable with the sedation but was following the instructions which according to her did not include reduction of the sedation. He however admitted that he neither found out much about the instructions of the anaesthetist nor saw the said instructions. According to him, he was just giving evidence on what Dr Thanga told them and could not say whether the instructions came from anaesthetist. In his evidence, he was not aware that the procedure of reversal was being carried out earlier than in accordance with the instructions of anaesthetist. While aware that the reversal is critical and the time is also critical, he was not aware that earlier reversal can cause brain damage since that is not his area of expertise. Since he was not present in theatre at the time of the procedure in theatre, he could comment on the procedure thereafter. PW7 stated that the 2nd plaintiff was not the one calling the shots as the same could have been rejected if found unsuitable by the ICU team since the 2nd plaintiff could only make a request. According to him, he not aware that it was the 2nd plaintiff who replaced the anaesthetist but suspected that Dr Moniz replaced the anaesthetist since he was just called to observe.

195. PW7 reiterated that on 13th the anaesthetist was not in ICU and that Dr Thanga was reversing the patient without reducing the sedation. In his view, the anaesthetist should have been there doing it with the junior doctor. However, Dr Thanga was uncomfortable and there was no response when she tried and it was only when they inquired from her she told them she had no instructions to reduce the sedation. While admitting that Dr Thanga was a qualified ICU doctor, it was PW7’s evidence that she still would have needed assistance for a consultant or a senior colleague since according to her, her instructions were not clear about sedation. By instructions, PW7 believed that she must have been referring to instructions of anaesthetist, Dr Okutuyi, and that the right action to take would have been to call the anaesthetist. However, she was in a tricky situation because it was 3. 00pm when the process was scheduled and the Doctor’s phone was off. However PW7 clarified that he did not have instructions that Dr Thanga tried to call the anaesthetist and did not know if she has ample opportunity to call the doctor, but thought she must have done so. To him, early reversal has the risk of death.

196. As an experienced doctor and while admitting that he was not a neurologist or paediatrician, PW7 stated that recovery so far is the best.

197. Cross examined by Mr Kiragu, PW7 stated that he was informed about the reversal by both the 2nd plaintiff and the sister in charge of the ICU. He however testified that he did not know the person who extended the reversal period and that the 2nd plaintiff did not tell him who was to carry out the reversal though ordinarily reversal ought to be undertaken by the anaesthetist. PW7 was however surprised that neither the anaesthetist nor the surgeon was present in such a high profile case. He averred that he gathered that the 1st plaintiff had gone to hospital with minor surgery and something had terribly gone wrong and confirmed that it was him who tried to call the 1st defendant because the sister said that the number was off the hook. However, when he tried, the number was off air and was not ringing. It was his evidence that the consultant keeps on and visiting and making phone contact with ICU team if not available and in that case informs the team on who to reach if he cannot be reached.

198. In his evidence, he did not know the stage Prof Amayo was called in but he had left Dr Kwasa who was reachable. According to PW7, in case of an emergency a team is put together immediately and in this case neurologist. To him, the anaesthetist with the ICU Unit should have carried out reversal and Dr Thange should have gotten help from the anaesthetist.

199. He reiterated that he accompanied the 2nd plaintiff to the SAEC and that the report did not show the members of the SAEC. According to him, the use of the catheter can be by doctor or the nurse and in this case he did not know whose decision it was. However when he realised the problem he told the nurse to get Prof. Amayo, the primary consultant since he became the main doctor after the 1st plaintiff developed cardiac arrest. It was his evidence that while the nurse updates the doctor to insert the catheter, the doctor then reviews the patient on daily basis. In this case the catheter must have been there for at least a day yet the primary consultant should have been reviewing him on daily basis.

PW8’s evidence

200. PW8, Dr Stanley Ominde Khainga,a consultant Plastic and Reconstructive surgeon, testified after giving his qualifications, that the Roles of the Surgeon are:

i. After a surgeon to examine a patient and decide on a surgical intervention as the remedy for his/her ailment he/she informs the patient accordingly. He then books theatre and hires an anaesthetist he or she is comfortable and confident to work with. The patient is usually asked to come to theatre desk about one hour before the scheduled operation time starts. This period of time is used for evaluation of the patient first by the nurses who take the vital signs i.e. the heart rate, blood pressure, weight etc., then the surgeon and the anaesthetist also examines the patient. All this is done to ensure the patient is fit for anaesthesia and the surgical procedure. If the evaluation process discovers any adverse condition that contradicts surgery or anaesthesia, then the procedure is cancelled until corrective measures are made.

ii. If the patient passes the theatre fitness test the anaesthetist with the help of other theatre support staff induce anaesthesia. When the patient is asleep and the monitors show all vital signs are okay and stable, the anaesthetist gives the surgeon the okay to start the procedure.

iii. The surgeon with the help of the support staff then starts the operation. Most surgeons including himself, also check on the monitor readings, especially the blood pressure, heart rate and oxygen concentration before starting the procedure. This however is not done as a sign of doubt but just to be double sure that what the anaesthetist feels is okay and stable is also okay and stable for the surgeon. It must be emphasized that once a patient is under general anaesthesia, he/she is totally dependent on the theatre staff for his/her life because he/she is paralyzed and in induced coma. This is why all must be certain on what is going on with the patient all the time. The monitors usually produce a beeping sound that is caused by the heartbeat. Many surgeons including himself make sure that this beeping sound volume is set to be audible to all in theatre so that if there is a change in the normal rhythm of the beep as may happen in an impending cardiac arrest all will be alerted and remedial measures taken before it is too late. Monitor alarms are usually very loud and when they occur must be checked and remedial action taken immediately.

iv. The surgeon as the primary health care giver to the patient is the team leader (Lead Doctor). He/she has to evaluate and monitor the patient prior to, during and after the operation. He/she has the responsibility to co-ordinate the happenings in theatre including the actions by the support staff like nurses and technicians in such a way as to ensure a safe and successful outcome for the patient. Adequate, audible proper communication and high level alertness are vital in theatre during any procedure involving general anaesthesia be it short or long operation.

201. According to PW8, in the event of a bad undesirable outcome like happened in this case, the surgeon with his/her team members i.e. the anaesthetist and support staff must explain what happened, what was done and when possible the expected outcome and keep updating on the progress of the recovery to the relatives or those concerned.

202. In this case, he was of the view that it was very unfortunate that in a short procedure of 5-10 minutes a young man’s life and future has been ruined permanently by the brain damage he suffered. According to him, it is clear that this situation could have been avoided by:

i. Adequate monitoring.

ii. Proper communication and general high level alertness by all involved.

203. According to his oral testimony, his evidence was based on what happens when one is preparing a patient for the surgery. To him, the patients is informed of the procedure by the anaesthetist and the surgeon and in elective process the patient comes an hour before the procedure and the decision whether patient is surgical or not is for the surgeon. Thereafter the time of surgery is decided and it is the surgeon who decides who to work with if the patient is a private patient for the surgeon otherwise the hospital chooses the anaesthetist. It was his evidence that it is the surgeon who introduces the anaesthetist to the patient who then makes an assessment to the surgeon whether the patient is fit for surgeon.

204. In this case it was PW8’s evidence that the problem arose in the theatre. According to him, once the anaesthetist induces the patient to sleep and the surgeon cleans the patient, the procedure starts. There are machines which assist in monitoring the patient such as Pulse Oximeter and the anaesthetist and support staff normally look up the machine at induction stage before surgery begins. To PW8, it is important to ensure that the patient is okay during the surgery such as whether patient is alive. The machine makes a beeping noise which is supposed to be heard by everyone depending on the noise. While some people reduce the volume to avoid interference with the operation, PW8 stated that normally he likes it being loud, though during operation you look at the blood.

205. He however emphasised that it is team work really and if there is a problem and the beeping changes either faster or slow to alert the people in the theatre. The surgeon normally gives an estimate of the surgery time to enable anaesthetist decide amount of anaesthesia. Once the surgery is over the surgeon instructs the anaesthetist to reverse the patient since the role of reversal belongs to the anaesthetist. However the surgeon is there because he is the primary doctor since he is the one who took the patient through the procedure and has an interest in the safety of the patient. Normally the surgeon is the team leader and all the other people are answerable to him, being the primary doctor. According to him, the surgeon owes a higher duty on the surgical aspect while the anaesthetist owes the duty of ensuring the safety and reversal of the patient. But the overall team leader is the surgeon.

206. In cross-examination by Mr. Githaiga,PW8 stated that it is possible to reduce the volume of the beeping sound, though he was not sure because the alarm gets everybody in the theatre alarmed. While a very distressed surgeon while concentrating on the patient may miss the alarm, it was his view that normally everybody gets alarmed when it goes off. This alarm alerts the theatre team if there is a problem. According to him, surgeons ensure the anaesthetists have properly hooked the machine and while you may believe them, the surgeon may confirm but normally you trust the anaesthetist once the monitors are working. The instructions are usually implemented by support staffs through the instructions of the anaesthetist.

207. According to PW8, cardiac arrest occurs when the heart is stopping to pump. While the normal heartbeat is above 60, he could not say exactly when the alarm would go off. However, in this case, he would have expected the alarm to go off. According to him, the alarm could have not gone off if it was not properly connected and he was not sure whether the alarms volume can be turned down. According to him, if no alarm was heard it could be one of several reason such as a malfunction or its volume being turned down. Normally it is the team leader to communicate to the parents of the patient.

208. In answer to Mr Inamdar’s questions, PW8 stated that he was a general surgeon before becoming a plastic surgeon though he was not an ENT Surgeon.

209. According to him, the examination can be done earlier than the arrival for surgery. However this is a routine procedure. To him, there are procedures which can be schedule for 10 minutes but can go on for 4 hours. He was therefore not be surprised if this kind of procedure took 10 minutes. It was his evidence that the surgeon may not necessarily examine the paper one hour before the surgery because the nurses may have already done the examination. According to PW8, he was making a professional statement and could not remember having been shown anything about what happened in the theatre. He was therefore unaware of what the 2nd defendant did.

210. According to PW8, one would think of many things as to why nobody was alerted of the alarm. If there was no alarm the surgeon cannot be responsible nor can it be said that the surgeon was not alert. It is possible for the noise of the monitor to be too low that other people may not hear it. According to him, while some people don’t like it loud, the alarm’s sound is very audible though in his view, he was not aware if an alarm can be turned low and was not aware of a situation where theatre staff have turned off or disabled an alarm. He however reiterated that surgery is the responsibility of the surgeon while monitoring and reversal is are the responsibilities of the anaesthetist though it is a team work.

211. In answer to Mr Kiragu’s question, PW8 stated that he was not in the theatre when the 1st plaintiff was taken into the surgery. While he was aware of what took place, he did not know their details. According to PW8, Monitoring included pulse Oximeter connected to the patient by the anaesthetist and support team which machine has the screen. The machine is placed to the comfort of the surgeon so that the anaesthetist can review it where it is visible to the anaesthetist since checking it is mainly the responsibility of the anaesthetist and the surgery team. This is because the surgeon concentrates on the surgery unless there is an alarm. According to him, the next machine is oxygenating machine to ensure patient is taking in enough air. It also has a monitor placed on anaesthetic machine for reading by the anaesthetist. There is anaesthetist machine which breaths the patient. It is the responsibility of anaesthetist to keep an eye on it. Generally these are the machines one expect in these kinds of the procedure. It was however PW8’s testimony that if doing a procedure involves bleeding you may alert the nurse on the same at movement of the patient. However, if the machines are accurate one would not go looking for the Pulse.

212. According to PW8, the anaesthetist normally checks the machine with technicians before the surgery. According to him, the main people involved are the surgeon, the anaesthetist, the support staff including technician and nurses. According to him, the staff supports position of the patient, adjust the lights on or avail equipment.

213. It was his view that his conclusion was based on the proper functioning of the machines and if not working there is the general state of the patient such as breathing. So this is a general statement whether machines are functioning or not. According to him, in the course of his work he usually find the work done by the anaesthetist and the staff important though he has to see how they do it. It was his evidence that theatres are used quite regularly and ordinarily same equipment used unless there is a need for replacement. In that case the equipment would be the same unless there is a problem. He however could not commit himself on the possibility of failure of the machine because one cannot tell when it will fall.

214. It was explained that the connection of the machines is the duty of the anaesthetist and the anaesthetist assistant under instruction and observation of anaesthetist. However, when there is an alarm the anaesthetist checks what is wrong with the technicians and the anaesthetic assistant ordinarily communicates to the anaesthetist unless the surgeon asks directly. However, if an alarm goes off the surgeon may stop and ask what is going on.

215. According to PW8, if the existence of blood depends on the nature of the procedure since if it was closed procedure it would be adequate but not otherwise. However, since he did not know the procedure involved, he could not say whether there would be blood involved.

216. In re-examination, PW8 clarified that he had not referred the 2nd defendant in person and that his statement was not about the 2nd defendant but was a professional of opinion as a surgeon. According to him, the 2nd defendant was a friend and professional colleague and they had no issues. To him, he would write this statement in any other case since as a surgeon this is how he carries out his duties. According to him, although the surgeon is the team leader he delegates other duties to the equally competent staff.

DW1’s evidence

217. At the close of the plaintiff’s case, the 1st Defendant, Dr Praxedes Okutoyi, testified as DW1. In her witness statement, she stated that she was a consultant paediatric anaesthetist, employed by Kenyatta National Hospital though she was also practising in other private hospitals in Nairobi.

218. On 11th February, 2005, mid-morning, she received a call from Dr Otieno informing her that Dr Moniz had a patient at Nairobi Hospital DSU who he was unable to attend to as he was held up elsewhere and Dr Moniz wanted the 1st defendant to anaesthetize the patient for him due to his unavailability at that particular time. According to the 1st defendant, she and Dr Moniz had a mutual working relationship hence it was not unusual for him to call her to do his cases when he was stuck. The 1st defendant was informed that the case was due right away and was a case of reduction of nasal fracture and the ENT Surgeon was Dr Omamo Olende, the 2nd defendant. Shortly thereafter, the 2nd defendant called her to find out how far she was and she informed the former that she would be there in about two minutes time. Upon arriving at the DSU the 1st defendant met the 2nd defendant at the nurses’ desk, and she quickly changed into theatre attire.

219. After that the 1st defendant walked into the theatre where she met the theatre team comprising three nurses and an anaesthetic technician. The 2nd defendant then asked for the patient to be brought in and a teenage boy was led into the theatre by one of the theatre staff. According to the 1st defendant this was the first time she was meeting the 1st plaintiff, to whom she introduced herself, took pre-operative medical history, noted that he was in good general condition with unremarkable past medical history, reporting no allergies with adequate fasting. The 1st defendant then explained to him the anaesthetic procedure.

220. According to the 1st defendant upon checking the file she noted that the 1st plaintiff had baseline physiological data namely Bp 122/77 mmhg, pulse rate 58/min, temperature 36. 1 deg cent, which were normal findings. It was therefore the 1st defendant’s determination that the anaesthetic be a general one. She then placed the 1st plaintiff in a supine position on the operating table, sited an intravenous access using a gauge 18 cannula on the left hand and commenced a drip of dextrose in normal saline. Monitors were set up and applied to the patient by the anaesthetic technician. The said monitors were an ECG monitor, pulse oximeter, capnography and NIBP. It was disclosed that the patient was pre oxygenated with 100% oxygen at a flow of 81/min via facemask and magills breathing circuit. Anaesthesia was induced with 100 micrograms of fentanyl, 180 mm propofol and 100mg of scoline all given intravenously.

221. According to the 1st defendant, intubation was done using a curved laryngoscope blade, the vocal code were visualised and a south polar endotracheal tube was inserted through the cords into the trachea and secured with a tape. The cuff was then inflated and the patient manually ventilated for approximately one minute, breathing circuit was changed to a closed circuit with a soda lime carbon dioxide absorber. Halothane 3% was commenced and the ventilator switched on. The tidal volume was set at 650mls, respiratory rate 14/min, fresh as flow of 1lo2 in 3lno2. According to the 1st defendant the patient was stable throughout the procedure and the parameters during the surgery were Bp systolic 100-120mmhg, Diastolic 60-70mmhg,spo2 >96% pulse 109 68/min. The 1st defendant stated that she was present throughout the surgery.

222. Towards the end of the procedure, the 2nd defendant asked her to look at the symmetry of the nose and as she proceeded to pack the nose, she turned off the Halothane and nitrous oxide while maintaining the patient at 100% oxygen. The ventilator was still on as from the beginning of the anaesthetic. Soon after, as the 2nd defendant was ungloving, the oxygen saturation dropped to 89%, prompting her to look for other clinical signs in the patient and monitor readings. She then found that the heart rate was 68/min, saturation dropped further, there were cyanosis in the nail beds, lips and the tongue. She then alerted the team and changed the breathing circuit to magills circuit and manually bagged the patient as the anaesthetic technician flushed oxygen and asked someone to feel the pulse which was done by one of the theatre nurses who said it was absent. The ECG showed asystole. Resuscitation was commenced immediately with the 1st defendant maintaining the airway while the 2nd defendant and the rest of the team taking turns at cardiac massage. The team was joined by the ICU cardiac arrest team and the resuscitation was successful. Thereafter the patient was transferred to the ICU with an ECG monitor and a pulse oximeter.

223. The 1st defendant then stated the drugs which were used during the period and the procedures undertaken. After the 1st plaintiff was settled in the ICU, the 1st defendant together with the 2nd defendant and Dr Nganga, a senior consultant anaesthetist who had been called returned to the DSU where the 2nd defendant telephoned the 2nd plaintiff and asked him to come over to the DSU. When the 2nd plaintiff arrived, he was introduced to the 1st defendant by the 2nd defendant, the team leader and the spokeslady who explained to him what had happened to the 1st plaintiff in the theatre and that he was now in the ICU where he was sedated, paralysed and ventilated. They then accompanied the 2nd plaintiff to the ICU after which the 1st and 2nd defendant left. Outside the ICU they met Dr Moniz, and having been the assigned anaesthetist, they briefed him on what happened and from their discussion they found it prudent to involve a neurologist in the 1st plaintiff’s management. Upon consulting the 2nd plaintiff, Dr Amayo was asked to review the 1st plaintiff and his opinion was that the 1st plaintiff suffered a hypoxic brain insult and recommended hyperventilation for 48 hours, with paralysis just as the 1st defendant had done.

224. According to the 1st defendant, over the next two days she reviewed the 1st plaintiff who remained stable haemodynamically while on paralysis and sedation with blood gases, oxygen, urine output remaining normal. On Sunday, he reviewed him with Dr Kwasa and though stable had a low grade fever. They decided to gradually wean him off the ventilator and instructions were given to the resident medical officer to stop paralysis at 5pm on Sunday and observe the patient for spontaneous respiration efforts and if adequate then sedation would be gradually weaned until the patient awoke. According to the 1st defendant the objective of paralysis and sedation was to rest the brain to allow recovery thus reversal of sedation and paralysis had to be gradual.

225. The 1st defendant averred that at about 8pm on Sunday, she found a missed call from Nairobi Hospital and left for the Hospital immediately where she found the 1st plaintiff breathing spontaneously on the ventilator on SIMV mode of ventilation and was dynamically stable. She then left instructions that he remains ventilated overnight and be observed and that she would extubate him in the morning. Upon her arrival home, she found a message from Dr Chunge that she was being looked for in the ICU. She then called him and informed him that she had just been there to review the patient.

226. The following day, Monday, she reviewed the 1st plaintiff who had been extubated in the night by Dr Moniz. He was breathing spontaneously on an oxygen mask and was hypodynamically stable though with a low grade fever. She then ordered a septic screen and an NG tube to be inserted for feeding and Dr Moniz informed her that the family had expressed a wish that he continues to manage him. The 1st defendant then asked to speak to the 2nd plaintiff and upon being put on the line asked whether she could go to the ICU and speak to him. However, the 2nd plaintiff expressed disappointment that the 1st defendant had not been present during the reversal on Sunday upon which the 1st defendant apologised and asked whether she would still meet and talk to him but the 2nd plaintiff declined and told her that they would talk wherever they might. The 1st defendant then told the 2nd defendant that they ought to meet the family as a team and talk to them about the 1st plaintiff and upon calling Dr Amayo it was agreed that time would be fixed and they would get back to her. However the following day, the 2nd defendant called her and informed her that it was not possible to meet the family and that they would get in touch with heron the matter. According to the 1st defendant, she was never rude nor callous to the parents of the 1st plaintiff. Instead she was devastated, shattered by the incidence and at loss on what to say. As a parent and a professional, she empathised with them in the circumstances and felt their anxiety and concern for their son’s well being as any parent would. It was her view that the 1st plaintiff was well monitored and the anaesthetic given was standard for the case. It was however unclear to her why the 1st plaintiff had hypoxia and cardiac arrest.

227. The 1st defendant disclosed that two weeks later her admitting rights were suspended for one year and in July, 2005, the medical board commenced its inquiry into the matter which was completed in November, 2007 and in its decision the Board revoked her license and recommended remedial training. Upon filing an appeal against the decision,, the Board, not keen on the court case, sought to renegotiate a settlement which was reached in 2008 which upon review of the monthly reports from the department of anaesthesia of the Aga Khan University and Teaching Hospital where the 1st defendant was attached which acquitted her, the Board signed a consent in the High Court which saw her reinstatement of all her professional licences and restoration of her name on all professional rolls and registers in exchange for her withdrawing the appeal. Subsequently, she was reinstated to her previous position of medical specialist at Kenyatta Hospital and the other private hospitals reinstated her admission rights.

228. In her oral testimony, the 1st defendant reiterated the foregoing and added that apart from being a Consultant, Paediatrician, Anaesthetist, she worked for Kenyatta Hospital and also practiced in Private Hospitals, namely Nairobi Hospital, Gertrude Children’s Hospital, MP Shah Hospital and Aga Khan Hospital. She also chaired the Theatre Usen Committee of Gertrude Children’s Hospital and was also a member of Medical Advisory Committee of the same Hospital. She disclosed that there are about 7 Consultant Paediatric/Anaesthetists in the Country and at the time of the incident there were only 2 Paediatric/Anaesthetists in the Country, herself and Dr Opere.

229. According to the 1st defendant, her field is a highly specialised one and one has to go under the basic MBCHB training after which one undertakes a 3 year Maser degree in general anaesthesia and thereafter one undertakes a one year fellow in anaesthesia. That takes approximately 9 years of training. According to her, anaesthesia is highly specialised area in medicine involving a lot of risk taking involving changing status of patient from conscious to unconscious and back to normal state. While the assumption is that after anaesthesia is given return to normal status should happen, sometimes it is not the case. Generally it is a risk field involving risky procedures. The anaesthetic drugs are used to induce anaesthesia to bring patient to conscious state have side effects and can be dangerous if not used properly. According to her, there are no guarantees that the patient will come back. She therefore referred to the consent signed by parent/guardians/patients to accept to be given anaesthesia with conditions set out which is necessary so that whoever is undergoing anaesthetic they are aware of the risks and accept to undergo the anaesthetist surgery. This was signed by the 2nd plaintiff, the 1st and 2nd defendants.

230. According to her, the job of the anaesthetist is to review the patient, grade the risk of anaesthesia to the patient and order investigation where necessary for the patient conduct anaesthesia for the patient including induction of anaesthesia. Further, she is tasked with the maintenance of anaesthesia and reversal of anaesthesia and during anaesthesia be present at all times monitor the well being of the patient throughout anaesthesia administer drugs as deemed necessary administers fluids blood and blood products. If necessary and after reversal accompany the patient to the recovery area, and hand over the patient to the recovery staff. According to her, the job of the anaesthetist is to try as much as possible to minimize the risk by monitoring and giving appropriate drugs in their correct dosages to the patient. It was her evidence that before the surgery the first step is pre-operative assessment when Anaesthetist identifies risky issues in allowing the patient to undergo anaesthetic. You assess the patient generally with specific attention on cardiovascular system and the respiratory system. You meet the patient introduce yourself, and inform them what you intend to do and start relevant anaesthetic history and you also find the patients drug history since some drugs may interact with in anaesthetic drugs and whether the patient is on treatment for certain drugs. You find out if there are any allergies or any history of drug reaction and if they have had exposure to anaesthesia in the past so that if there were event in the previous anaesthetic that you find out what may have happened. She also takes the family history and looks for other illness called commodities. In her evidence, there is no time line for this pre-operative assessment so long as the issues are addressed so that one must satisfy one self. She testified that she did conduct pre-operative assessment on J as described in her statement and satisfied herself on the same. According to her they grade patients on a scale by using the America Society of Anaesthesiologist (ASA) which runs from ASA-1 to ASA -5 and in emerging situation you including suffix E solution. According to her, ASA-1E or ASA-5E, ASA-1 is the best and for a patient with minimal anaesthetic risk. However, ASA-5 is a moribund patient in the highest risk to undergo anaesthetic. According to her they look at general condition physiological features in normal range no comorbidity and that the gender also determine the drugs to be determined or dosages. It also determines whether the patient is to be operated a day case in same day surgery and one goes home or may be admitted. According to her, she placed the 1st plaintiff as a young fit man and fitted in ASA-1 hence fit for anaesthesia and surgery and qualified for a day case.

231. The 1st defendant explained that there are two types of equipment essential for anaesthetist. One is anaesthetic machine which may include or not include a ventilator and the next set are the anaesthesia monitors. The machine is used to administer anaesthesia to the patient especially in the maintenance phase and has several gadgets and piping. It has the ability to deliver gases to the patient and also to deliver volatile anaesthetics to the patient. She explained that there are gases and volatile anaesthetic agent drugs. The latter are in liquid form when in the container mounted on the machine and they are within the Theatre but gases come from outside through the pipes. For the volatile agent to reach the patient the gases are piped into the machine and it is the anaesthetic technician who does this. The volatile agents are placed in the vaporizers by the anaesthetic technician.

232. In this case she explained that the volatile agent used was Halothane but there were others namely sevoflurane, isoflurane and enflurane. According to her, the vaporizers are specific to each drug and there is safety mechanism on the anaesthetic machine known as Pin Index which prevents misplacement in mounting of the vaporizers on the machine. In other words, the vaporizer for Halothane is for Halothane only so that you cannot use other drugs for the said vaporizers since the vaporiser fits on different parts of the machine and are graduated with a range of anaesthetics which can be given by specific vaporiser. On top of the vaporizer is a dial which gives the range of anaesthetic which can be given e.g. from 0-6% for Halothane and for evoflurane is 0-8%. The vaporisers are made by the people who make the machines. The 0-6% is the allowable range of concentration drugs administered for that vaporizer. According to her it is not true that 3% is not with range to be administered since it is within allowable range. Secondly other factors are to be considered to decide whether the concentration of 3% is adequate or inadequate. Referred to the minutes of the SAEC meetings, the 1st defendant stated that the report from the University of Nairobi found that the patient was anesthetised with normal general anaesthesia. Similarly in the preliminary inquiry committee report to Medical Practicians and Dentists Board (PIC Report) dated March 2007, there was no finding of irregular medical or drugs procedures. To her the PIC is constituted with a team of highly consultants in various fields in medicine. Similarly, the medical board which is composed of specialists in various field did not make any finding of irregular anaesthetist drugs on procedure used or applied. Similarly in those documents there was no indictment for dosage of Halothane used and she saw no expert opinion in court showing contrary view.

233. It was her explanation that anaesthesia is administered in three places and these are induction phase, maintenance phase and reversal phase. In the induction phase two options are used to induce anaesthesia. Inductions is from conscious to unconscious state medically induced which can be achieved in two ways. According to her, the practise of anaesthesia is simulated to flying and a lot of safety strategies used in flying industry are simulated to anaesthesia. Induction simulated to take-off, maintenance to rising level and reversal to landing and the riskiest sections are the induction and reversal. To her, induction is riskiest because one is trying to reach optimal level at which to settle down and go to rising level.

234. It was her evidence that during the procedure the anaesthetist is supposed to make some notes and that a longer procedure allows time to do most of the tasks including manual electronic record. However, a short procedure of between 5-10 minutes does not allow that and is normally done after the procedure because the surgery is short intense stage and one has to find optimal level, giving drugs and anaesthesia hence no sufficient time to take down the recordings. According to her the volatile anaesthetics are titrated to effect and you increase gradually to level where there is no reaction to surgical stimulation. By titrating you start from 0. 1-1 and even 1-4 and then titrate backwards to the level required. However, you can also start for 6% downwards. There could be physical movements or manifestation of sympathetic concentration and even hearing from the patient. There are the signs of stimuli reaction and the level of stimuli varies from person to person whether higher or lower usually when using volatile anaesthetist. In children especially you crank up and then go down as children don’t co-operative. In the instant case, she explained that Halothane was not used for induction and that the method used was intravenous induction meaning the drug that induce anaesthesia, propofol, was administered though the vein and Halothane was used for maintenance of anaesthesia. However, other drugs used may affect the amount of Halothane used and these drugs may include pain killers and muscle relaxants in presence of a pain killer used to deal with painful aspect of the surgery. Once the effect of the pain killer kicks in the concentration of halothane can be reduced. The age of the patient has a bearing on the rate of the halothane. In cases of younger children and infants and older people the concentration is much lower. The anaesthetic agents are transmitted in the patient by two gases – oxygen and nitrogen oxide from an extent at source. They drive in volatile anaesthetics in vaporized forms to the patient. The patient inhales using mask if no endotracheal tube is introduced otherwise it is inhaled in endotracheal. The role of the ventilation is to take over the function of breathing for the patient in situations where there is total control by use of long acting muscle relaxant.

235. According to the 1st defendant, there are 5 types of muscle relaxants. The short muscle relaxant – scoline or Suxamethanoium; there is intermediate muscle relaxant, trachrium or sistraciusium; the other is long acting muscle relaxant, Sistraclurium, are panncuronium. These muscle relaxants paralyse all skeleton muscles and the short muscle relaxant is not normally used to maintain paralysis due to its slow duration of one to two minutes but used just to facilitate the airways by introducing endotracheal tube into the trachea. In this case what was used was the short acting muscle relaxant – the Suxamethanoium. If you use a long acting muscle relaxant it means patient is paralyzed for longer and will require reversal of the paralysis which the relaxant might have induced. The patient will also require ventilation to breath for them and will require lower concentration of halothane meaning ventilation is controlled as the patient is relying entirely on the ventilation to breathe for them. Since what was used was short acting muscle relaxant, it means that the muscle relaxant was to facilitate intubation within 1-2 minutes and ventilation used to support respiration in which situation the patient if is partially breathing for themselves while the ventilator is supplementing the breathing. Where the patient is completely controlled, the concentration of halothane is reduced and where patient in breathing for themselves the concentration is not necessarily reduced to the level of where ventilation is used.

236. The 1st defendant disclosed that she was familiar with IPPV, which is intermittent positive pressure ventilation. According to her, complete control ventilation can only be achieved in presence of long muscle relaxant which was not the case in this case. So complete control must involve long muscle relaxant hence IPPV does not mean complete control. IPPV means the machine is giving breathes to the patient. Referred to the anaesthetic record which she admitted having filled, she confirmed that the method was indicated as IPPV. She however stated that there was no record to indicate that it was not completely controlled. She therefore did not believe that there was an error in administration of halothane and that she put into consideration all the relevant factors, age, muscle relaxant applied etc. and was satisfied the correct method as far as Halothane was concerned was applied. According to her there was never been any indictment of the method used by any professional body.

237. Referring to the monitors, the 1st defendant testified that the monitors give you physiological readings of the patient and also alert you when the same readings go beyond the set range – beyond the minimum and maximum cut-off and when there is a disconnection from the monitor. In this case the parameters include blood pressure, pulse rate, oxygen saturation and the endocrinal carbon dioxide levels – the carbon dioxide that the patient emits at the end of every breath. The monitors are applied immediately the patient gets into theatre. The electrodes, a minimum of 5, are applied to the chest and hooked to the monitor in presence of all, surgeon, anaesthetist, technician and nurses. According to her, it is impossible to go on without monitor being connected as the connection of the monitors is the beginning of the surgery.

238. The moment the monitors are applied to electrodes which go to the chest which the monitors are hooked unto the patient using of the wires from the monitor unto the patient, the beeping sounds come on correlating with heart rate and the actual trace of the ECG appears on the machine. Similarly when a pulse oximeter, which is used to determine how much oxygen go through the body, shows on the monitor and the number of saturation in terms of percentage. The pulse oximeter is placed on the toe or other fingers while the blood pressure cuff is placed on the arm. According to her, she asked for an additional pulse oximeter machine to enhance safety upon realising that the first one had been applied on the same side as blood pressure cuff and it was going to be a problem if left on that size because every time the blood pressure was going to be read the pulsation would be cut off. According to her, it is not unusual to ask for an additional pulse oximeter and it would have been awkward not to do so. The cuff is then inflated and then deflated and gives blood pressure level at which time the blood pressure may not be given.

239. It was her evidence that the use of other electronical equipment may also interfere with the monitor and cause the noise from the monitor. However, the alarm will go off if there is disconnect or range exceeded either way. Since the alarm is continuous till the parameters go back to normal level or the pulsation is fixed, you cannot ignore the alarm and sometimes audible even outside the theatre. If it goes off, the distances between people in the theatre are so short that it is not possible for other people to hear and not the others. She explained that the patient occupies the table, surgeon at the head, an anaesthetist on the side of the table, the Assistant opposite the anaesthetist and anaesthetist assistant besides the anaesthetist so all the three cannot possibly miss the alarm if it went off.

240. According to the 1st defendant, after the signing of consent, the patient was taken to theatre in the presence of herself, the 2nd defendant, an assistant nurse, the anaesthetic technician and circulating nurse. Out of these, three were employees of the hospital, the two nurses and anaesthetic technician. To her the technician is technically the custodian of the anaesthetic machine in charge of setting up the machine, performing various tests on the machine before being used. They make a check list of what they need to do before they avail the machine for use. They also look at the general hygiene of the patient. Some of the tests include detection of malfunctioning and to ensure oxygen and nitrogen oxide is running and that the vaporizers are fixed and that the gases are flowing based on the protocol fixed to the theatres. The machines are owned by the institution and the technician is employed by the institution, the 3rd defendant Nairobi Hospital has very high traffic and is charge between 5 -10 minutes and the function of the technician is critical given the amount of work handled by hospital. After placing monitors on the patient, the 1st defendant saw that the intravenous line established was in place and started IV fluids. She then talked to the patient and hooked in machine in presence of the patient and the technician hooked the machine under her supervision. According to her, it is not impossible that the ECG dots were not charged and that if there was an omission that would be on the nursing since the patient was hooked at the machine and the monitors started taking the readings. She then went on to site intravenous and introduced the findings and procedure to give induction drugs, propofol professional. According to her, fentanyl is slow acting pain killer and its function at this stage is to reduce sympathetic simulation when endotracheal tube is used. Profofnol induces sleep and is very slow acting while Scholine is the short acting muscle relaxant. She then introduced endotracheal tube using a gauger called layringoscope which illuminates the vocal codes and makes it possible for anaesthetist to visualize the vocal codes to put in the tube which tube has a cuff below it and when introduced it is deflated and then inflated. She then manually ventilated patient using the machine to ensure the tube was in the right place, put the patient on the ventilator and switched it on. According to her, she was using nitrogen at 2mls per minute and she ascertained that the airway’s pressure was normal so as to avoid airways obstruction. She then gave the other relevant drugs.

241. According to her the changes should have been picked up by the monitor so that if the oxygen slipped to 89% which is lower the machine should have picked it up. According to her for heart rate the cut off is 55/minute so that at 68/min the monitor would not have picked this up. However at 89% oxygen, the alarm should have gone off. She however did not hear any alarm go off though she confirmed that monitors were hooked on the patient. Her view was that the monitor may have malfunctioned. According to her when the cardiac arrest occurred and the heart stopped, the monitor should have gone off because it has set limits and built in limits but it did not as there was no alarm. To her the monitor malfunctioned.

242. Refereed to the 2nd defendant’s witness statement, she confirmed that the 2nd defendant did not hear the alarm go off during the surgery.

243. It was her evidence that during the surgery there is a time when there were no monitors and that the Doctor and anaesthetist would physically and manually feel the pressure and pulse and looking at the body palms, nails and use of stethoscope. However, the accuracy level would vary and it would not be possible to have continuous reading and it was also subjective from one person to another. When the machines came in the late 90’s they improved the safety levels. According to her, presently, the anaesthetist is not expected to do physical check when she has the monitors on. She stated that she rarely does the physical checks since the monitors are relied on up to 90%. It is therefore critical that the monitors should be working. Her expectation would have been that the theatre should have been cordoned off to ascertain the status of the machines before allowing their use. Internationally the practice would be to seal the theatre and get evidence with respect to the incident and the machine put away. To determine whether machines were working there is an electronic record that can be generated from the monitor. However, if physical record cannot be obtained, it can be obtained from the record or from the memory. That record gives all the parameters from the beginning to the end as they were running. The machines, it was her evidence belonged to the 3rd defendant which should have been in a position to avail the records which were however not availed. Referred to the SAEC report, she confirmed that it was found that more information was needed and that it was difficult to pinpoint when the problem happened. It was her case that it is possible to get record of the monitor and this would have assisted in getting where the problem was since it would have assisted in finding out if the machine was working and cleared the issues herein.

244. The 1st defendant stated that she was not the designated anaesthetist who was Dr Moniz and who should have attended to the case. She however could not say that that was a handicap and that she did everything she would have done if the case had been assigned to her from the beginning. According to her, the primary doctor is the one in charge of doing so and in this case it was the surgeon, the 2nd defendant and this was confirmed by the 2nd defendant in her statement that she was appointed to spokesman. According to the 1st defendant, she was therefore not expected to voice her views thereafter.

245. The 1st defendant’s evidence was that the ICU has ICU nurses trained in critical care with ratio of 1:1 Nurse to patient. It also has resident doctors with consultants but resident doctors are to be there throughout. The ICU doctor is supported by competent and be able to handle daily ICU procedures, resuscitation, ventilation and taking patients off the respirator and Dr Thanga was one of them. She however clarified that she had not worked with her before. She testified that the ICU doctor acts on instructions of the consultant in the treatment and there is supposed to be liaison between ICU doctor and consultant. While the ICU doctor is supposed to be present throughout the consultant is not. However, doctors in the ICU are expected to be highly competent than ordinary ward doctors.

246. According to her, the instructions were to electively paralyse and ventilate the patient which is a clinical recovery of patients having undergone cardiac arrest. The recovery in this case was with regard to the brain and at that moment it is not possible to tell the level or at all of the brain damage. It was however, the 1st defendant’s case that that is the standard procedure when a person has suffered cardiac arrest and that that was what she ordered when she gave instructions through the ICU team. To her, at that point the patient is not condemned to brain damage and after this procedure full recovery is expected. To her, she ordered investigations to be done on daily basis and if her instructions were not clear the doctor needed to seek clarity from her. She stated that she gave instructions on the day they took the patient to the ICU but not the procedure of reversal which instruction came later when the patient was in ICU on condition of paralysis.

247. She explained that the drugs are not administered as one-off but continuously through an infusion, a gadget called infusion pump. The muscle relaxant is hydrolysed which breaks down and to is broken down by the body and the sedation is taken out of the body by simply taking it out and giving it time to wear out. So you stop the paralysis and then wear off sedation to achieve recovery without suddenly removing sedation as the intention is to gradually wean out sedation without high cerebral metabolism since if sedation is suddenly done you increase the cerebral rate and not allow proper healing. According to the 1st defendant, she instructed that the 1st plaintiff be on sedation for at least 48-72 hours after which the paralysis would be stopped and gradually wear off sedation. A patient sedating for that period cannot be completely awake and she expected the patient to energise for sedation the following day and complete reversal in the morning. It was her intention to commence the process on Sunday and she expected to extubate the patient on Monday since she expected that he would be removed off the ventilator throughout Sunday. However, her instructions were not followed to the letter since on Monday morning she found and was informed the patient had been extubated by Dr Moniz in the night which was contrary to my instructions. She was informed Dr Moniz was called in on request of the parents. This means sedation had been stopped and patient resumed ventilator on Sunday.

248. According to her to say that a reversal is watched would not be possible unless one is present the whole day since it is gradual and the first reversal is usually a trial with possibility of going back if parameters are not suitable for reversal. She therefore was of the view, that one of dangers of early reversal is death. There may be slow recovery of brain damage or increased damage. According to her, where a person has suffered cardiac arrest there to be emergency in removing the patient from the sedation. The 1st defendant stated that though her phone was on, she was informed that she was being called but could not be reached. Eventually Dr Chunge called her and she had been at the ICU earlier. When Dr Chunge called, she went to the ICU. She stated that she was not expected to be there during the complete process to the end and that she was going to do trial extubation Monday morning. As far as she knew Dr Thanga had no difficulty on her instruction and did not tell her so that morning. She reiterated that she did not order sedation to be stopped but to be weaned gradually.

249. The 1st defendant’s evidence was that on Monday she continued seeing the patient and that she expected that communication be made when another doctor was coming into the case. She stated that on Sunday she did not know that Dr Thanga took it upon herself to stop sedation but she would not expect him to do so without instructions from a senior.

250. It was her testimony that to say she was not remorseful was unfortunate conclusion as she was traumatized and this would be permanent trauma in her life.

251. Cross-examined by Prof Wangai, learned counsel for the plaintiffs, she explained that the process of anaesthesia is in three phases: induction, maintenance and reversal. Induction is like plane taking off, then cruise and landing. Surgery takes place after induction between maintenance and landing. It does not take place at induction or at landing but at maintenance or cruise. At induction she took the patient to sleep and then gave the necessary drugs for the procedure and started the patient on maintenance. She said that she used the drug called propofol to induce sleep. It stays in the body for about 1-3 minutes. She used fentanyl which stays in the body for 1-3 minutes and scoline or Suxamethanoium, a muscle relaxant which stays in the body for 1- 2 minutes. After that the patient will not be on any muscle relaxant. In ordinary normal circumstances, the said drugs would be in the body for 1-3 minutes. There are other drugs used for maintenance. After the induction they will not be in the patient’s body as they will wear off. At maintenance she used Halothane which she titrated up to 3% which was the highest level and titrated backwards to effect where the surgery could proceed without the patient getting aware of what was going and went down till 0%. According to her, however, the patient was maintained at 3% during the surgery and at the end of the surgery the Halothane was switched off completely.

252. Since it is the anaesthetist who signals that surgery should begin, she signalled the 2nd defendant to begin the surgery so there was communication. She stated that it is the anaesthetist’s job to decide when to titrate depending on the variables and the response from the patient and communication from surgeon. During surgery there is communication with surgeon. In this case the first communication was whether to start and after finishing the 2nd defendant asked to look at the symmetry of the nose. It was therefore her evidence that they were working as a team. However, the communication to look at the symmetry of the nose was not part of anaesthesia but just a confirmation. At that time she had switched off halothane and patient was not under anaesthesia as the surgery was finished. Though she was not noting the time of the induction it was between 1 -3 minutes since it is the question of injecting the three drugs. It was about 2 minutes. In maintenance was about 5-6 minutes. However, because there was a crisis they never went to reversal but proceeded to resuscitation. By the end of surgery the drugs were switched off. At that time the expectation is that the patient emerges. In her evidence the switching off of gases is the beginning or reversal but in this case it was not successful. She explained that it is the function of theatre technician to set, check and switch off the machine but denied that she said that she did not check the machine. She insisted that she checked that the oxygen was flowing, the vaporizer had anaesthetic and that the necessary equipment or attachments to the machine have been assembled and that the monitor and its accessories were in place. It was her my testimony that the machine was working. Though the person who loads volatile drugs is the theatre technician, the levels of the drugs is set by the anaesthetist and she insisted that she set the levels of drugs used for the 1st plaintiff.

253. The 1st defendant testified that it is expected that beeping sound would correlate to heart beat, the pulse of the patient and an alert. She confirmed that the beeping sound came along with pulse oximeter and heart beat was heard but she did not hear any alert sounds. The beeping sounds were all of normal character throughout the procedure. However, the patient could not be reversed as something went wrong. Accordingly, at the time of resuscitation there was no sound since the beeping sound correlates to the heart beat. In other words an Asystolic event occurred which according to her is when the heart stops and there is no heartbeat as the heart is not pumping blood. So the heart had stopped. It was her evidence that at the time when she was asked to look at the asymmetry of the nose, the beeping sounds were normal but it was quiet and it was upon doing so that she realized there was cyanosis and when she looked at the monitor there was Asystolic and there was no beeping sound. When she looked at the symmetry of the nose she realized the lips were blue and upon looking at the monitor it dawned on her there was Asystolic and that the beep sound were not there. She however confirmed that you do not have to look at the monitor to know that the beeping sounds are not there. It was her evidence that the beeping sounds disappeared at the end of the procedure when she noticed the lips which were exposed at the end were blue hence there was cyanosis which is caused by low oxygen levels.

254. According to the 1st defendant’s knowledge there are 2 types of cyanosis - central and peripheral. The 1st plaintiff had central cyanosis. To the 1st defendant, there was low oxygen level as opposed to low oxygen. In this case the heart had stopped. She explained that cyanosis is a pre-cursor to the heart stopping so you expect cyanosis before cardiac arrest and it takes up to 5 minutes. By the time they noticed this, it was at the end of the procedure and already there was cyanosis. She confirmed that the problem begun as surgery was going on.

255. The 1st defendant testified that the pulse oximeter detects oxygen saturation and at the end of the procedure the patient had low oxygen. She however could not say that the pulse oximeter was not working because the last reading she recorded was 89%. However, when she put the patient on the monitor it was normal. She however agreed that the pulse oximeter does not move from 100 – 90 etc and it can never come for 100 to 50. She could only say that it started with 100 and at the end it was 89. It was her evidence that abnormal saturation would be 90% at the lower or the highest at 100% but it would take 5 minutes to get cyanosis which might have happened during surgery but the machines were not giving any alarms. She however insisted that these days you do not physically monitor the patient hence during the surgery she let the machine monitor the 1st plaintiff, during which time she was looking on the monitors and monitoring the patient. The monitor were normal up to that point.

256. According to the 1st defendant, at the time she noticed the lips were blue, the 2nd defendant was still with the patient and she informed her lips were blue. It was her evidence that the 2nd defendant was operating on the nose and not the lips and it was when she called her to go and see the symmetry of the nose that the 1st defendant saw he had cyanosis and realised that they there was a crisis. They then resuscitation which took about 5 minutes. She however was not sure how long the heart stopped and could only give an estimate time of resuscitation.

257. After that they agreed together with the 2nd defendant and Dr Nganga to take the patient to ICU and thereafter saw the patient every day until she was informed she was not needed. She insisted that she gave certain instructions but were not followed to the letter. However, her instructions to stop paralysis were followed. However, the instructions to wean off sedation was not done according to her instructions since her instructions were to wear off sedation gradually. Though there was no set time, it had to be maintained with the patient’s response. Since the wearing off started in the afternoon and she expected it to last for 12 hours and in her view, it was done earlier by 8 hours. Though she was supposed to come next day and extubate – remove the tube - the tube was removed earlier than she anticipated. According to her, when removed earlier, it means denial of ventilating support when it is still needed. She however could not say that the removal of the tube earlier affected the patient. She similarly could not say that by the time of removal at the ICU there was brain damage or not since she was not sure how long it takes for one to get brain damage after the heart stops. However, it takes about 5 minutes to get brain insult after the heart stops and if he brain cells do not have oxygen for the 5 minutes they start having damages. Since she resuscitate 5 minutes, it is possible that the 1st plaintiff suffered lack of oxygen for more than 5 minutes so by the time the patient left theatre the assumption would be that he had brain which was insulted.

258. Referred to plaintiff’s bundle at page 251, she confirmed that in adults, Halothane can be used for induction and maintenance and their dosages. She reiterated that she used Halothane for maintenance. According to the documents she was referred to, the recommended dosages are 0. 5% - 2%. While agreeing that according to the said documents the dosage was high, she did not agree. According to the said documents, Halothane can cause bradycardia which is slow heart rate. It also causes hypotension which is low blood pressure. So according to this it cause slow blood rate and low blood pressure so it is recommended that you use anticholinergic and an example of this is atropine which the 1st defendant admitted she did not use on the 1st plaintiff.

259. Referred to page 252 Colum 2, the 1st defendant confirmed that Suxamethanoium causes bradycardia which reduces heart rate and this effect is enhanced by Halothane. So according to the document, Halothane enhances bradycardia and she did not put the patient on anticholinergic. Referred to the opinion of Dr Kabetu whom she confirmed was senior to her, though he was happy with drugs used at induction, use of Halothane above 1% for long period can lead to hypertension. The 1st defendant however interjected that he should have stated what he meant by long period. She also confirmed that according to Dr Kabetu, low oxygenation and high Halothane level can cause cardiac arrest and the 1st defendant agreed that it is not in dispute that at some point the patient had low oxygenation. So this statement, she confirmed, was not surprising and was correct. Referred to the statement of David Mueke, the theatre technician that he raised the issue with anaesthetist but went unattended, the 1st defendant said that she could not remember David Mueke informing her of any problem with oxygen saturations. Though she did not have personal difference with him, she had no idea why he would say such a thing. The 1st defendant, while admitting that monitoring of the machine was her responsibility, disagreed that with Dr Kabetu that 3% was high. I see 3rd Defendant bundle 2 at page 408 first paragraph.

260. The 1st defendant remembered that at the SAEC she stated that the drugs used crushed the blood pressure of the 1st plaintiff. She however explained that what she meant was that if she were to be given an opportunity to handle the patient the way she did she would not anaesthetize such a patient.

261. The 1st defendant however admitted that she was not happy with the anaesthetic chart because it was not filled properly though she admitted that she was the one who filed it because it was not possible to fill it during the procedure and she could not refer to information from the machine. She however confirmed that the blood pressure was crushed by the drugs she used and if there was a pre-operation problem she should have detected it. Referred to the statement of Dr Kabetu, an anaesthetist that the level was high and that the chart is not good, the 1st defendant agreed the chart was not good.

262. The 1st defendant however maintained that 6 minutes were used for resuscitation and was of the view that there was nothing wrong with her statement to the members of the SAEC that resuscitation took few minutes.

263. Referred to the anaesthetic record which she filled in, the 1st defendant confirmed that Halothane is indicated as 3% and though she insisted that she lowered it at some stage, it was not so indicated.

264. The 1st defendant testified that while she used IPPV – intermittent positive pressure ventilation method, there is also assisted ventilation and control ventilation and supported assisted control. According to her, she used supported ventilation and allowed ventilator to supplement. This is a situation where the patient makes his own breath and the machine supplements. However, at the time the machine is breathing the patient is not breathing by himself. She explained that Suxamethanoium is a short muscle relaxant and in this case she needed not to use the drug to paralyze the patient. She explained that it is possible for a patient connected to the machine to also breath for themselves. It was the 1st defendant’s evidence that she filled the chart at 7. 00 a.m. on 11/02/05, the day of the operation which was at 11. 00 a.m. according to the chart. She however clarified that it was in the afternoon since the notes of scrub nurse indicated that the operation began at 11. 00 a.m. and ended at 11. 05 a.m. according to this. Accordingly, the 1stbdefendant explained that the chart in so far as it indicated 7. 00 a.m. was erroneous as the operation took place at 11. 30 a.m. However, all the other entries were not erroneous.

265. Referred to the witness statement of Dr Moniz, she stated that she did not agree with him though she agreed that 3% in controlled ventilation is high. According to her she did not use atropine and would not use it even now. She however admitted that the drugs used can cause myocardial depression and severe hypertension. Referred to page 252, the 1st defendant admitted that though she did not talk about Halothane, she did not deliberately leave it out. She reiterated that she saw the lips when the drips were taken off. Referred to the findings of the Board at page 256, she explained that she meant that hypoxic state started within the last 10 minutes of the surgery.

266. She however admitted telling the Board that she should have taken more detailed history of the patient. At page 266 1st paragraph, she confirmed that the board said that monitoring was poor and there was no indication of sluggish heart and that the chart was fictitious. It further found that the inter operative monitoring was wanting. The 1stdefendant agreed that she was supposed to do that. She confirmed that the board found her guilty of misconduct and she was sent for remedial training for 6 months which she went through successfully. She was also suspended from the Roll of Doctors for 2 years.

267. Referred to the 3rd defendant’s volume 1 page 18, she confirmed that they were her notes of 13/02/05 to the ICU doctor and that the plan was to stop paralysis from 5. 00pm and reverse. According to her, she designed the process to take between 48-72 hours, though this was not indicated in the document. It was also not indicated that the E- tube should not be removed.

268. The 1st defendant however stated that Dr Sangale is the one who informed her to stop managing the 1st plaintiff though she could not remember the date or time but believed it was on Tuesday. However referred to her witness statements filed on 22nd June, 2012 at paragraph 12, she said that Dr Moniz told her he had been informed by the parents to continue managing the patient. She however confirmed that Dr Sangale does not appear in her statement. She however insisted that reversal was not done according to her instructions and was not done properly. She however admitted that the drug which causes paralysis was stopped at 5. 00 p.m. as per her instructions.

269. The 1st defendant admitted that at 5. 30 p.m. the 2nd plaintiff requested for doctors attending patient and that at 6. 30 p.m. she was being called twice and she did not pick the call. The 2nd plaintiff tried calling me but did not go through. Dr Kwasa was called and discussed with Dr Thanga to reduce Domicum which is a sedative. The 1st defendant agreed that it was not wrong for the 2nd plaintiff to ask that the patient be seen by an available anaesthetist.

270. The 1st defendant however denied that she did not take good history of the 1st plaintiff; that she did not have consent to undertake the procedure on him; that she did use a higher dose of Halothane 3% for maintenance; that she did not intra-operatively adequately monitor him; that she was unavailable for his management at the ICU; that she fictitiously filled in the anaesthetic chart; that she was professionally negligent on his management; that as a result of her negligence the 1st plaintiff suffered cardiac arrest; that due to her negligence the 1st plaintiff suffered permanent brain damage; that if it was not due to her negligence the 1st plaintiff would not be in the state he is in; and that she was not remorseful on her conduct.

271. Cross-examined by Mr Inamdar, the 1st defendant denied that she failed to properly prepare for pre-operative assessment. According to her, she took notes for about 10 minutes in the assessment which she considered adequate for the anaesthetic reference. She reiterated that the request was made to take over the case by Dr Otieno – an anaesthetist and she relayed the information that Dr Moniz had requested her to take over the case. It was her evidence that the lateness did not affect the assessment and monitoring and that she had previously worked with the 2nd defendant, an ENT surgeon, frequently and knew how she works and the 2nd defendant was also familiar with her.

272. According to her, there is a machine which delivered gases and the others are the monitors giving physiological readings. The monitors have alarms and the beeps but not the anaesthetic machine. She agreed that though it is possible for the alarm to be switched off or reduce its volume, she was not aware whether it was switched off or its volume reduced because in normal circumstances it can be done at her request. She however confirmed that neither herself nor the 2nd defendant made such request. However, there was no indication on the machine showing whether it was off or on.

273. To the 1st defendant, the management of the machine is the responsibility of the anaesthetist and not the surgeon. She reiterated that the machine malfunctioned and that the other cause of the incident was the manner of reversal and that the 2nd defendant was not responsible for any of the two as she was not involved and they were outside her responsibility. According to the 1st defendant, the other cause could have been the drug used which was similarly, not the responsibility of the surgeon. She however confirmed that the process of weaning off is ordinarily a long one and can take up to a day.

274. According to her, an active reversal is done in theatre where the drugs given are time framed and one time frame end can be recovered by antidote immediately. However, the 1st plaintiff’s reversal was hastened because she interceded gradual weaning off and it was done in a short time frame. The purpose of gradual weaning is not to make brain to be too active in order to allow recovery. Otherwise the gain can be negated. To her though the brain had in a cerebral insult, it would however not inevitably lead to brain damage and if appropriate remedial action was taken he would have recovered and had a chance of complete recovery. In her view, the manner of reversal could have caused and contributed to his condition.

275. The 1st defendant insisted that the communication level between her and the 2nd defendant was satisfactory and that the preparation she made was adequate for the operation otherwise she would not have started without the 1st defendant’s go ahead. It was her evidence that the operation took about 5 minutes and the only field of vision for the 2nd defendant was the nose which was exposed and unless something happened there would be no need to communicate. To the 1st defendant, this was an uneventful procedure. She reiterated that the checking of the nose symmetry was after the surgery and it is just a glance and she confirmed it was symmetrical. By that time the process of taking off drapes had started though the surgeon was still there and it was her who alerted the 2nd defendant that the lips were blue. In her view, as the drapes are covered all over, the surgeon cannot be blamed for failing to notice the lips.

276. Referred to the statement of David Mweke, she reiterated that she did not hear any alarm. While conceding that the lowest limit is 90%, she stated that the alarm would not go off at 90% but would start at anything below 90%. However, it did not alarm and when she first saw it, it was 89%. She denied that Mweke informed her that it had gone down to 90%. According to her, she did not say the machine was faulty and did not switch off any machine as it is electrically operated. She could not recall the said machine reading 35%. To her, 35% would be dangerous and would result in hypoxia or starvation of oxygen. It was explained by her that the ECG is the oxygen machine and not pulse oximeter. The other machine they had showed 89% and that would not cause the kind of brain damage that occurred here but it could occur at 35%.

277. Cross-examined by Mr Kiragu, the 1st defendant stated that her case was that plaintiff voluntarily assumed the risk of procedure being performed by the 2nd defendant. She insisted that she adequately prepared the 1st plaintiff for surgery and used the correct drugs in his case. She however insisted that the machines being used on him failed and that the injuries suffered were aggravated by third parties brought to the case by the 2nd and 3rd plaintiffs.

278. According to her, the Preliminary of Inquiry (PIC) Report concluded that her conduct be looked into by the Board since they felt there was a need to look at her role as anaesthetist by the Board. According to her, pre-operative assessment was not an issue before the PLC and the matter was resolved by medical practitioners and dentists Board. She however admitted that her record keeping during the procedure was wanting since the time of surgery was not correct. She however explained that due to the time factor she had to do the chart after hence the inaccuracy in time. Therefore she completed the chart after resuscitating the patient since the completion of the chart depends on circumstances. In a short procedure it is not possible to fill in the chart progressively. According to her, in that procedure it is not procedural to indicate induction drugs before. According to her after the resuscitation, she did not look at the machine since the procedure was a 5 minutes procedure and she knew the readings so she went back after to do the record. Since the procedure lasted 5 minutes, she relied on the machine to give them the reading and if intervention is required they take the action and in this case they resuscitated. It was her evidence that at the start of the procedure the readings were alright – the blood pressure and heart rate were within normal parameters. Then the heart rate went down to 95 after 15 minutes according to the chart though it would be after one minute. However, it was not possible to put down the intervals at that time. For entire 5 minutes she said she noticed the Sinuses and called for the resuscitation. She however agreed that it would have been prudent to take the reading after resuscitation but by that time the machine had been switched off and she could not get the machine. Though she sked for readings, the monitor had already been switched off and the readings had been lost.

279. Referred to the readings on the chart, the 1st defendant admitted that it was difficult to separate the time but the readings ranged from 89 – 99 which was not normal since at 89 it begins to get into danger zone. She admitted that even without machines there are ways of monitoring patient but all depends on circumstances and in a short procedure this is not possible to keep on using clinical monitoring to monitor the surgery. According to her, the period for induction took about 1 – 2 minutes and after induction and you feel the procedure should start you give a go ahead. However, the procedure depends on drugs used and this is determined by heart rate, etc, the monitor reading and the surgical stimulus such as pain. In the case of the 1st plaintiff, she relied on the Machines. While his first blood pressure was rather high at the beginning everything was well. It was her evidence that the period it would take for sinuses to settle depends on case to case basis and the condition of the patient. The 1st defendant however insisted that she was in a position to observe the monitor throughout the procedure and did so through the machines and coordinating with clinical status for example when saturation reached 89 she checked the pulse clinically though most of the time the saturation was good. According to her, touching the capillaries means squeezing the base of the finger while touching the pulse is by the feeling of the pulse. She stated that she was able to do the clinical monitoring but intermittently. According to her, this was a 5 – 10 minutes procedure and she checked the pulse about twice at the beginning and when the saturation dropped significantly.

280. The 1st defendant confirmed that the 1st plaintiff was athletic in fairly good health and in this case the type of cyanosis was not peripheral cyanosis. If a cardiac arrest occurs, the cyanosis sets in fast. Otherwise if it is due to oxygen, it takes a while. It was her evidence that everything was normal up to the moment when desaturation was setting in and reaching alarming point when she saw 89% at the time the 2nd defendant asked her to check the symmetry of the nose and it was at that time that she saw that the machine was functioning indicating something was wrong. She however insisted that there was the main ECG and the pulse oximeter and that the non-invisive blood pressure was on the side of pulse oximeter. In her view, it is the ECG Machine that failed because there were no alarms from the machine as expected yet every monitor has physiological set limit. She however reiterated that David Mueke did not draw her attention to the alarm and she did not switch off the alarm. According to her, they did not have conversation with him apart for requesting him to bring her the back up machine.

281. The 1st defendant averred that after 11th February, 2005, she did not use the theatre and had not used it prior to the day of the incident. However, it is not absolutely true that the fact that it was used before and after means it was working properly because he didn’t know what may have been done to it. She however disclosed she did not request for the assessments of the equipment. According to her, she has worked with theatre technicians and what David Mueke said that the first user can check with the technician but subsequently the technician just confirms the state of the machine.

282. According to the 1st defendant, she felt that she should not have anesthetised such a patient due to the short notice and that she felt unsupported. She confirmed that the blood pressure had gone down to very low levels and that all anaesthetist drugs have that effect since it is one of the side effects though intervention is possible. She however disagreed with Dr Moniz because atropine is not used routinely since most patients’ bodies can correct the blood pressure.

283. According to her, the pre-operative procedure entails physical examination, cardiac system and respiratory system. In the check-up they use stethoscope and take the history of the patient. In the case of a minor it is expected to be done in presence of parent but not always. You check for anything relevant to anaesthetist such as previous exposure and generally what can complicate the surgery. According to the 1st defendant this patient had a primary doctor who would have done this. She however confirmed that both herself and the 2nd defendant were specialists in their areas of specialisation though there are common relevant areas and she is required to satisfy herself that the patient is in a position to undergo the surgery.

284. According to her statement, the surgery was delayed and though most of the time the Day Surgery Unit at Nairobi Hospital is busy, there was enough time to get the relevant information for purposes of anaesthesia. While the normal heart rate is 72 per minute for athletic person like the 1st plaintiff this was of no consequence to her since pulse rate can be affected by many circumstances. It was her evidence that her choice of drugs was informed by the fact that the patient was fit on health (AC1), the type of surgery to be done and the fact that it was a day surgery. The choice of dosage are according to body weight and titrated to effect and physiological parameters of the patient. It was her evidence that it can go up to 6% which is the highest. She therefore disagreed that normal dosage is 0. 5 to 1% because you have to titrate to effect and at 0. 5% you cannot use any other drug. According to her, there are situations when Halothane can be used at higher levels of even 3% or higher. In babies with a hole in the heart you need halothane at higher levels to close the hole. Normal dosage varies from one patient to another as Halothane and have depressant effect. She agreed with the opinion of Dr Moniz on the roles of the anaesthetist being to check all machines save in urgent situation when you can do it when patient is already in theatre. In this case she said that she checked it earlier. It was however her evidence that she found the 1st plaintiff in the holding area not in the theatre and they checked whether monitor was on, whether the gases were there, whether the volatile anaesthetist agent was there and whether emergency button was working and confirmed that it was. She also confirmed that she connected the patient to monitors. According to her, in short procedures you get the first reading and at intervals of 5 minutes but can be adjusted.

285. The 1st defendant explained that the carbondioxide monitoring is meant to support breathing. It shows you have placed the tube in right place and shows how much the carbondioxide is being exhaled and the effect of muscle relaxant. The anaesthetic gas monitor tells you the percentage of oxygen and concentration of volatile agent. She however disagreed that without other drugs the depressant effect of halothane are higher. While denying that she said that she learnt never to take short operation at short minute, she admitted that the intervals did not give her a chance to take more readings as what is allowable is 5 minutes interval.

286. She however disagreed with Dr Kabetu that the chart did not show post-operation exposure and therefore had inadequate information. The 1st defendant was however not sure of what went wrong on the said day given that the anaesthetist was the correct and the patient was properly monitored. The only thing is that the monitor was not alarming. She insisted that in her opinion it was the failure in equipment that caused the problem, though she could not say for a fact there was effect of the drugs. While clarifying that she was not saying that she had no responsibility because she gave anaesthesia to the patient, she clarified that she was referring to volume of breathing and enough oxygen which can be due to defect in machines or the settings. In her view, the machine can be working but the settings could be wrong and it is the responsibility of anaesthetist to ensure the machine is working.

287. The 1st defendant explained that hypoxic mixture is delivered when the gas is not the expected one. However she checked there was no disconnection for ventilation. In her view, while reactions to drugs cannot be caused by Halothane, Ventolin can cause reaction and cardiovascular collapse will result after both heart rate and blood pressure reach very low level. She confirmed that whereas anaphylactic reaction may result for muscle relaxer, the drugs may also affect physical variables. She however insisted that her complaint with respect to machine was its failure to alarm. However, the monitors’ standard she used were the standard. She insisted that she did what was right but could not remember whether the findings of the Board were set aside in the settlement of her appeal. Though she was attached to Aga Khan Hospital for 6 months, her suspension was reduced to 3 years pursuant to the agreement between her lawyers and the lawyers for the Board.

288. According to the 1st defendant, Medical Officers in ICU do not have to have masters and though she knew Dr Thangar, she did not know whether he had qualified to be ICU doctor at that time. It was her evidence that though the procedure could not start without her green light as she was responsible for anaesthesia from start to reversal, you don’t have to confirm that the patient has reached optimal level before giving go-ahead. She reiterated that she did not check the machines after the procedure and that her reason for the defect was lack of alarm.

289. In re-examination by Mr Githaiga, the 1st defendant explained that anaesthetic drugs are dangerous and have side effects that can be detrimental to the health of a patient as most of them affect cardiovascular system which can compromise the heart and circulation. So, while it is not surprising if these indications occur, interventions can be put into place. According to the 1st defendant though there are two procedures – surgery and anaesthesia – if the doctors see the patient at the same time, the consent is taken at the same time as well and if separately then they are separate though the document is one with different parts. According to her, the parent was aware of the change in the anaesthetist before the procedure but they did not withdraw this consent on learning of the change. While anaesthesia is in three stages - induction, maintenance and reversal – it was her evidence that the phases differ depending on the length of the procedure and that since in some cases induction may be as long as the maintenance, it may be difficult to separate the phases. It was her case that the procedure took 5 – 10 minutes and there was no reversal due to the cardiopulmonary arrest. However the induction and maintenance were short and overlapping and some of the activities within induction were carried into maintenance phase. During induction you monitor how drugs are behaving and making adjustments. So it is difficult to draw a definite time between the two.

290. According to her, the reversal is done when the surgeon signals that he is about to finish and sinuses happens when oxygen contents in the blood is very low. However, sinuses leading to cardiac arrest will take longer about 10 minutes or more. On the other hand a cardiac arrest leading to sinuses takes shorter about 5 minutes or so. In this case what happened was cardiac arrest leading to sinuses. If Halothane was the cause she would expect cardiac arrest since halothane is a mycardiac and depresses the activity of the heart then it would have been cardiac arrest leading to sinuses. The pulse oximeter screens continuously. So if it is broken you will see the continuous change whether upwards or downwards.

291. According to the 1st defendant she was by the patient throughout the entire period and the surgeon never left the theatre. Her evidence was that it is impossible to ignore the alarms. She reiterated that she gave instructions on the treatment chits and if her instructions were not clear the Medical officers and Nurses should have called to seek clarification. To the 1st defendant, brain insult is a state in which it is dysfunctional but has a chance for recover while brain injury is where no recovery can be made and it is irreversible. In this case it was her evidence that it was not possible to tell at which point the brain injury occurred.

292. Referring to page 51 of Plaintiffs bundle A, she explained that it was dealing with dosage for adult or the elderly for induction and maintenance and it was indicated that 2 – 4% Halothane or Nitrous oxide may be used. This is so because the elderly are a special category and cannot be described as AS1 hence 4% is allowed. She explained that brain insult can be caused of up to 5 minutes and that Atropine is used to increase the heart rate. The anaesthesia it is only used where indicated where a slowing of the heartrate is observed but not routinely. It was her view that Atropine was not used because it was not indicated and was only used when requiring drug cardiac resuscitation.

293. According to the 1st defendant, IPPV is a broader term of ventilation. This is a mode by which the machine is supplementing the breathing at the beginning of anaesthesia. However if long acting muscle relaxant is given and patient cannot breath for themselves then the controlled ventilation is applied since the machine is doing the breathing for the patient. In this case the patient needed support and no long muscle relaxant was administered. It is possible that the machine was operating while the patient was breathing for himself. To the 1st defendant, the fact that the chart indicates IPPV does not mean it was fully controlled.

294. The 1st defendant admitted that there was no indication that she reduced Halothane because it was being titrated to effect. She reiterated that the chart was filled in after resuscitation and that the filling in depends with situation since in a short procedure it is not abnormal to complete the chart after everything has settled. After the occurrence she was in shock and was not herself and at that time it would have been advisable to appoint another anaesthetist since at that point in time she was traumatised for along time hence the errors in the chart.

295. According to her Dr Moniz was the one who handed over the case to her and later took it over hence he was involved in the case. However, the Board did not make a finding or raise an issue on the dosage of the drugs. With respect to the prior and subsequent use of the equipment it would have been prudent to examine it before use by another user. She however did not know whether it was so used though it was her evidence that she would not use the equipment after, before it was examined. According to her, before the Board there was no evidence that it was used after. Referring to her notes at page 18 of 3rd Defendants bundle vol. 1, she confirmed that the indication of the 48 to 72 hours was in treatment chit but the reversal by Dr Moniz was not in accordance with her instructions. Since the primary Doctor was the 2nd defendant, it was her view that a request for a new anaesthetist should have been through primary doctor since there was no emergency.

296. It was her evidence that in Nairobi Hospital set up, it is the technician to ensure the machines are in working condition and are switched off and maintained. The Hospital has departments dealing with servicing of machines. The machines belong to the Hospital and the anaesthetic technician is the one who checks that machines are in working condition. She however confirmed that at the beginning the machines were working and though there should have been alarm taking into account the readings, she did not hear an alarm. Accordingly, there must have been a malfunction in that aspect of the machine. She confirmed that in physiologically healthy patient the settings are between 100% - 90% and that below 90% an alarm is to set off. In this case it went to 89% and lower readings subsequently. She insisted that if the machine memory had been extracted from the machine she would have known what happened and when things went wrong. This can only be generated from the machine. However, the record has never been provided. She reiterated that the monitors are highly relied upon hence the move from physical monitoring since monitors are more accurate. The patient’s heart rate was 58 per minute which was normal for that kind of patient – athletic. The percentage of Halothane I used was not high professionally.

DW2’s evidence

297. DW2 was Dr Bernard Mark Gacii, a consultant anaesthesiologist. According to him, he did not know the 1st plaintiff though he was acquainted with the 2nd plaintiff as a colleague doctor.

298. Regarding the incident in question, he averred in his witness statement which was adopted that having read copies of the statements availed to him that his conclusions were as follows:

i. The 1st plaintiff was in a good health before the onset of the operation apart from the broken nose that had brought him to the hospital.

ii. There may have been lack of comprehensive pre-operative evaluation due to the last minute change in anaesthesiologist doing the case.

iii. The induction phase of the anaesthetic, including securing of the airways at the onset of the operation was uneventful.

iv. Monitors used on the patient included oximetry, electrocardiogram and blood pressure (non-invasive) which are in keeping with the standard required for such a procedure as the 1st plaintiff was about to undergo.

v. The case was a short duration, lasting not more than 20 minutes or so.

vi. The anaesthetic plan and drugs administered were acceptable for the type of patient and the operation. Administration of a high concentration of volatile anaesthetic (halothane) at the initial phase of the anaesthetic is an accepted practice to speed up the onset.

vii. An event occurred that led to hypoxia and/or cardiac arrest.

viii. The event must have occurred after induction but before the conclusion of the surgery, hence the findings of blue lips (hypoxia) and absence of a pulse just as the operation was being concluded and drapes removed.

ix. It has been proved that theb1st plaintiff suffered significant hypoxic brain injury.

299. According to DW2, hypoxic brain injury is caused by lack of perfusion of the brain by oxygenated blood for a period of at least 6 minutes and this can be caused by the following:

i. Failure to deliver oxygen to the blood.

ii. Failure of circulation to move oxygenated blood to the brain, even though gas exchange at the lungs is normal.

iii. Failure of tissues at cell level to take up oxygen, eg in severe metabolic derangements or states of poisoning.

300. According to the witness though the surgeon in her statement stated that after the patient was noted to be cyanosed, she was informed that the oxygen saturation was 89%, a saturation of 89% per se is unlikely to cause cardiac arrest in a fit young patient with no other co-morbites. However the statement by the theatre technician of the oxygen saturation having dropped to 35% is a severe level of hypoxia and could cause a situation of cardiac arrest. It was however his statement that in none of the statements availed to him, was there a mention of blood pressure or any changes, if at all, in the electrocardiogram (e.g. rhythm, ST segment changes, changes in rate) and Sister Kaviti’s statement only referred to observations being normal at the beginning without going to specific ones.

301. As regards the possible causes of lack of delivery of oxygen to the blood, the witness found no evidence of common causes he enumerated but mentioned one being equipment failure such as the failure of the anaesthetic machine to deliver oxygen to the patient which he did not however deal with. With respect to the possible failure of circulation and therefore lack of perfusion of the brain the witness dealt with possible causes but was unable to point to a particular one as the cause.

302. In his testimony, DW1 explained that if there is lack of oxygen to the brain the reserve of the oxygen can only last for 16 minutes and that the lack of oxygen can be due to the fact that the lungs are not getting the oxygen or the blood is not being transferred to the brain and this can then lead to hypoxy brain damage since the brain uses a lot of oxygen unlike other organs hence maximum of 6 minutes before the cells start dying. If the period is less than 6 minutes the patient may recover but the period is not completely cut off since others may recover. But this is the general time when brain injury starts.

303. In his evidence from the documents surrounding the incident including the drugs and charts, the monitoring used was within standards. The case was short not lasting 20 minutes and the drugs (propofol) were proper for the procedure used to put patient to sleep. According to him, suxamethanoium was meant to paralyse the patient and act quickly and for short period for putting endotracheal tube in the windpipe to assist breathing. According to him, it is appropriate for head and neck surgery because the surgeon has to have access and secure air waves at the same time. Ventolin, a pain killer was also used to reduce the response to intubate which causes stress in the body. In his view, the volatile anaesthetic called Halothane in form of vaporal gas was purposed to maintain anaesthesia till the end because propofol wears off within a short time so Halothane is used to keep patient asleep. According to him, if the patient is to be ventilated throughout the operation your start at higher dose and reduce it after a few minutes. It is administered through the vaporizer in liquid form and the oxygen is blown through the vaporiser and comes out as a gas and delivered with oxygen. It was his evidence that the vaporiser is graduated from 0 – 5% and is is mounted on the anaesthetic machine. Some of them have up to 6%. From the documents the patient was placed on simultaneous breathing after a few minutes. In order for patient to breathe on his own the patient is made deeper with higher concentration of Halothane and later the same is reduced to avoid coughing in the tube. This is reduced to maintenance dose.

304. In his evidence this process of setting the patient can take between 5 – 10 minutes and most people will start from 2 – 3 % in adults and come down. In this case he did not find anything wrong with administration of Halothane. He found the whole cocktail of drugs used appropriate. According to him a higher percentage of Halothane may be used in special circumstances where air waves are blocked as in asthmatic and to reduce the pressure and in certain operations in children. According to him, with respect to children they start even upto 5% and then reduce. It was therefore his evidence that to say 3% is higher would not be complete and if it is not to maintenance stage it would be correct. While admitting that between start and the point of cardiac arrest something must have happened, he was however unable to state what happened. According to him, to make a conclusive opinion he would need record of electrocardiogram (the ECG) which gives readings on heart rate, rhythm of the heart and whether there are changes. He however did not see a mention of this though it would have assisted. If he had had blood pressure more assessment it would have assisted. There was no mention of the condition of the tubes. He insisted that if problem was cardiac he would have required information from ECG and if respiratory it would have been the 3 possibilities. The 4th possibilities would have been reaction to the drugs which happens and you get severe lowering of blood pressure and swelling around the vein and around the mouth depending on severity of the reaction. If that happen it would be aware of the injected drugs and not Halothane. If your block blood supply to the head the blood muscle dies because it cannot pump.

305. In his evidence, sometimes the body has two responses. Sympathetic and autonomies nervous system so if you surgically manipulate the nose, eyes and other organs it may stimulate parasympathetic nervous system which may cause the slowing or stopping of the heart through it is rare. This could happen by itself. It is not very common but he has seen it happening. However, none of documents indicated a slowing of the heart rate.

306. He testified that if the patient has an arrest and they have achieved return of spontaneous stimulation they assume there is an element of brain injury and they mitigate by putting the patient sleep for 2 to 3 days – 48 – 72 hours after which they assess the patient with CT Scan and other neurological test and attempt to wake the patient after.

307. It was however his evidence that the ECG allows you to determine whether the source of the problem is cardiac but if the problem is respiration the ECG will also become abnormal and a lot is placed on the ECG Machine. For a planned case like this one, it was his evidence that enough time is needed but it seems there was a pre-operation assessment though sometimes they are called upon it take such roles.

308. According to him, he considered all the factors and made his conclusion based thereon.

309. In cross examination by Prof Wangai, DW2 stated that high dose Halothane is used at initial stages and where the patient has high blood pressure then high percentage is 2 – 3% for induction thereafter. You reduced to 0. 5 – 1%. If the patient is breathing spontaneously he may require 2 – 2. 5%. He admitted that anything beyond that would be high dose. He stated that he looked at the anaesthetic chart and the mode was IPPV and that Halothane was 3%. However, since the intention cannot be determined from the chart, he could not tell whether it is high or low. He stated that if the patient was ventilated throughout and did not have blood pressure it would be high. He however admitted that the chart incomplete chart and he would indicate the amount he started with and the reduction. However as there was no indication of any other percentage, it was be possible that the patient was all along on 3% Halothane. Referred to the 1st defendant’s statement he confirmed that at initial stage she used 3% and that with Halothane there is slowing of the heart, increase sensitivity of the heart. Blood pressure and heartrate would go down.

310. DW2 stated that the membrane becoming blue can be due to reduced oxygen or reduced circulation resulting from lack of supply of oxygen to the lungs, supply of wrong gas and reduced circulation. It is largely respiratory. Sinuses and heart attack are related. Without delivery of oxygen to the heart it can cause heart attack. It is not the same thing as sinuses. According to him, sinuses is not a cause of heart attack but is a sign of lack of oxygen. In theatre there are standard monitors pulse oximeter, has invasive blood pressure and ECG. To him, the pulse oximeter was used and it gives two things – saturation of oxygen in the blood. Its normal range is 91 – 100 and it gives wave form of arterial pulsation – pulse rate. It gives the character of the pulse when in use it produces at default setting which changes in pitch. As saturation goes high the pitch of the beep goes higher though for some manufactures it is the opposite. He stated that the character of the sound changes and it can be picked if the volume is high enough. If the volume is very low only the people near it can hear it. If the heart rate goes below the set parameters or higher there is usually an alarm which goes off.

311. It was his evidence that he heard the patient was cyanosed and cyanosis takes place between probably two to three minutes from the onset of the problem. According to him, the pulse oximeter would, if working pick it, but it may take a moment to pick it though not more than a minute. The ECG would alarm if the rate is beyond. If the volume is adequate it can be picked. The volume depends on the team. But the warnings are very important. There are two types of cyanosis - peripheral for only one part of the body and full body. The failure to pick the cyanosis would be due to the fact that the pulse oximeter was not picking. It was his evidence that you can also see it from the monitor. To him, the event must have occurred after induction but before the conclusion of the surgery and it is possible that part of the surgery was done when patient had the problem.

312. Though the evidence was contradictory with regard to the percentages with one stating 35% while the other 89%, he said that if it was 89% it would unlikely result to heart attack. However, 35% can cause heart attack. Between the two he would pick 35%. As regards the blood pressure, the chart showed that it was normal. But according to him, he would not expect normal blood pressure in a patient with deep cyanosis. He agreed with Dr Kabetu’s statement that high concentration of halothane may lower the blood pressure and that low oxygen with Halothane can cause heart attack. However, it was his view that Dr Moniz’s statement that 3% is high is a very general statement which needed qualification. He however did not agree that Atropine which is used to dry the throat should have been used. While all standard monitors were placed, he could cannot talk about standard monitoring. He however reiterated that the Anaesthetic chart was incomplete. Referred to page 251 of Plaintiffs Bundle A where Halothane is indicated as 0. 5 to 2% in maintenance and that Atropine should be considered, he said that the use of Atropine in manipulation is very rare though he agreed generally with everything in the Article.

313. In cross-examination by Mr Ogado, learned counsel for the 2nd defendant, DW2 stated that the surgeon could not perform the role of the anaesthetist and that before an operation his role as anaesthetist includes examination of suitability of patient for the procedure. If not suitable you can stop the procedure. His further role is to determine drugs and agents to the used. What the surgeon does is to tell you his requirements for example if he requires patient to be absolutely still or that the pressure be lowered but you decide how to put the patient to sleep though you can tell him what you intend to do. That process includes the dosage of drugs you want to use hence he is independent of the surgeon.

314. In this case since the procedure was nasal reduction, the patient is draped during the procedure and the drape cover the whole patients with small opening around the nose to mainly cover the nose itself. He discusses with the surgeon the position in which the patient is to be placed but he can insist on a position. In so far as the position is concerned the surgeon has the control and so they adjust the techniques. In this case, he stated that he is normally at the head of the patient because the surgeon is at the side. The monitors would be behind him but he stands in a position to see the operation and monitor the screen. According to him, the looking at the screen and the patient is continuous and depending on the setting, blood pressure can be every 5 minutes but the pulse is continuous. His primary role is to ensure the patient is alive during the procedure. So in case of risks he would take certain steps including stopping the procedure and if the risk is arrested the surgeon would proceed. However, depending on how serious the problem the procedure would be stopped. So long as the issue is not surgical the sustenance of the patient would be his responsibility. It was his evidence that when you see something in the monitor you can physically confirm by physical monitoring. It was however his evidence that nasal procedures have very little bleeding in his experience and from the nose it is difficult to tell if a person is cyanosed if you are dark skinned. From the nose one cannot pick up the change.

315. It was however his evidence that from the statements of the witness and the notes he saw, there was no indication of surgical problem. If the volume of the alarm is low only the person next to it may hear. If very high the whole theatre may hear. For him even without an alarm he would know if something is wrong as long as the monitor is functioning. It was his evidence the only possible surgical cause is vaga response to manipulation by stimulation of parasympathetic reaction which is rare. However, in terms of monitoring the patient and sustaining the life it is the role of the anaesthetic and involves pre-operative drugs and after the operation.

316. In answer to cross-examination by Mr Kiragu, the witness stated that though he had a chance to read the records he did not see the proceedings apart from the records though he was aware the matter went before the Board which made some judgement against the 1st defendant. He was however unaware of the exact findings. In his evidence, he used the records from the Hospital to make his conclusions so he would not have arrived at a different conclusion. While appreciating that the Board Members were very serious Doctors, he stated that none of them is in the field of anaesthesia. He however admitted that Dr Zipporah Ngugi was the chairperson of Department of Anaesthesia UON and was his supervisor and he hold her in high regard. The witness reiterated that with saturation of 89% it was unlikely that the 1st plaintiff would have gone into cardiac arrest though with 35% that was likely. After dealing with the consent, the witness stated that by signing the consent the patient is aware that there could be adverse consequences. However, if the notice is too short you can decline to proceed on and ask for a short delay or if the patient is prepared adequately you can go ahead. He stated that the profession requires you to satisfy yourself that it is safe to proceed and he agreed with the statement of Prof Obura that for good working relationships, the surgeon cannot prevail upon the anaesthetist and vice versa.

317. According to DW2, an anaesthetic plan is the sequence for actions and drugs that you plan for the patient. It is a manner of how one intends to go through the operation. It is a mental exercise. That is what is documented in anaesthetic chart. You cannot come with it before interview unless in emergency. He stated that by the end of the preparations all the drugs are in the theatre and the drugs are informed by nature and length of surgery and the status of the patient. However, once you settle the patient you can fill in the chart but where the procedure is short you can fill it after the surgery. You cannot write drugs before you give because you can change your plan before you give. He however reiterated that the chart is incomplete since it did not have the name, identity number and the IPPV was not completed. He stated that in his practice he writes the machine and setting instead of just IPPV since there are different settings of the machines. This is the setting which allows patient to breath. Just writing IPPV makes it difficult to tell the mode of breathing. The mode of breathing is connected to the drugs whether you will use longer acting muscle relaxant in which case the machine will breath. In this case the drugs were short acting, suggesting that after 5 – 6 minutes the patient will start breathing. It is however helpful to state the exact time and whether it was adjusted according to the operation. Similarly, it would have been helpful and important to indicate if the agent – Halothane - was reduced. Physical monitoring is in tandem with the machine monitoring since it confirms the readings in the machine. He agreed that even if all machines fall, clinical exam is to be used though it is difficult to put your finger to the pulse rate throughout the operation. He emphasised that it is the anaesthetist who is responsible for monitoring the patient.

318. DW2 further agreed with Dr Moniz that on the need to check machines and the drugs. For routine operation you check whether it is on and that the settings are correct but it does not include technical checks since the parameters are set by the technician. In his evidence he was unable to tell what actual happened in this matter and what he stated in his statement were just possibilities. He however stated that the other possibility could have been the drugs though he could not state that the cyanosis was caused by the drugs.

319. Referred to the bundle he stated that from the 1st defendant’s evidence before the Board, Halothane, which is administered by the mask was for maintenance stage though its reduction was not captured. He however disagreed that 3% Halothane was unreasonably high. He also disagreed that the failure to indicate ECG charge means there was no ECG.

320. In re-examination, DW2 clarified that the purpose of preparation is to satisfy oneself of state of the patient and that a patient may even come 30th minute before the procedure. After stating what are to be examined and what the 1st defendant indicated, it was his view that he would have proceeded with the procedure despite the amount of time because everything was normal. According to him, none of the pre-operative system have been raised as the cause of cardiac arrest. He also agreed with the report by Prof. Ngumi which did not mention any unusual drug use as well as with the statement of use of general anaesthesia.

321. Referred to the Board’s findings, he stated that none of them was anaesthetic and there was no finding on the choice or dosage of drugs. Further, there was no specific cause of cardiac arrest apart from possible causes according to the 1st defendant.

322. He clarified that the consent is given because anaesthetics are inherently dangerous and there is a possibility of surgery going wrong. There is always a risk. According to him, the filling of the chart should be done as soon as possible. He stated that it is possible to fill in the form from the ECG so long as it is not switched off which is not permissible. According to him, he could only rely on the chart and the notes which show that the monitoring was done and the person who is better placed to state how monitoring was done is the anaesthetist though the surgeon can also give an opinion if he notices something since surgery is a team. According to him, the clinical monitoring is done when the monitoring seems abnormal or artefact.

323. He reiterated that though the reduction of Halothane was not indicated in the chart, in one document it was indicated that it was reduced. While drugs is the responsibility of anaesthetist, surgery is for surgeon, while the machine is for technician. In this case, it was his view that it was not possible to pinpoint cause of cardiac arrest and peg blame on anyone of the items. He explained that cyanosis is a blue colouration on a patient normally when there is lack of oxygen. It is a sign of hypoxia. If a person has hypoxia it means the heart will not get oxygen and it may lead to cardiac arrest in which case the heart will not pump blood and may lead to hypoxia. So reverse is true if you have hypoxia from cardiac arrest. He stated that it takes 4 minutes though in other case it is instant because the heart stops blood from moving immediately.

324. Referred to page 175 of the plaintiffs’ bundle, the statement by Dr Kabetu, he stated that the situation was not the same as in the instant case it was a short procedure. Controlled ventilation is when you paralyse the patient. Here there is no indication of long acting relaxant used. So you would expect the patient to revert to breathing within 6 minutes, but these details were left from chart. According to him, the missing details would have assisted in the timelines and in knowing what happened in between.

2nd Defendant’s Case

DW3’s evidence

325. After the close of the 1st defendant’s case, the 2nd defendant, Dr Chimmy Omamo Olende, an Ear Nose and Throat surgeon opened her case and testified as DW3.

326. According to her, the 1st plaintiff was presented to her office on 9th February, 2005 having suffered a nasal fracture the previous day while playing basketball game. X-rays were done which confirmed the fracture and that the nasal deformity was marked with medical displacement of the left nasal bones. The 2nd defendant informed the 2nd plaintiff that the reduction of the fracture could be done in a couple of days once the oedema subsided. Accordingly, the 1st plaintiff was scheduled for surgery on 11th February, 2005 at Day Surgery Unit of Nairobi Hospital at 10. 00 am. The 2nd defendant’s clinic nurse then talked to Dr Moniz and booked him as the anaesthetist and he assured her that he would be available to do the case at 10. 00 am on that day.

327. On 11th February, 2005, the 2nd defendant arrived at the Day Surgery Unit late at about 10. 20 am and was informed that Dr Moniz had not come to the theatre but was doing a case elsewhere and was not available. The 2nd defendant having failed to get the anaesthetic that she worked with due to the short notice, Dr Moniz arranged to have the case done for him by the 1st defendant and since the 2nd defendant had worked with the 1st defendant on numerous occasions in the past when Dr Moniz was not available, the 2nd defendant saw no problem working with her and informed the 2nd plaintiff of the change of the anaesthetist, a proposal the 2nd plaintiff agreed with. The 1st defendant who was at Kenyatta Hospital at the time then rushed to Nairobi Hospital to do the case.

328. According to the 2nd defendant, the surgical procedure started at just after 11. 00 am and there appeared to be no problem including the anaesthesia. The patient was intubated and a pharyngeal pack inserted and once the anaesthetic team had settled the patient and given her the go ahead to start the surgery, the 2nd defendant proceeded. According to the 2nd defendant, the patient was draped so that the only relevant surgical field was her view, the nose. At the reduction, there were no problems as it was a standard procedure of manipulating the fractured bones using Walshams forceps and bleeding was minimal. After reduction, an internal merocel was nasal dressing was applied in the left nostril and an external nasal splint applied over the nasal bridge. According to the 2nd defendant, the actual procedure time was not more than 20 minutes and during the surgery the anaesthetic team did not alert her of any problems with the patient hence it was her belief that the patient was being closely monitored as the anaesthetist never left the patient’s side.

329. As the 2nd defendant was de-robing and removing her surgical gloves, at the end of the procedure, the 1st defendant shouted that the patient’s lips were blue and he was also noted to have no pulse. Immediately cardio-pulmonary resuscitation was commenced with the assistance of the ICU team and after about 8 minutes the heartbeat was restored and the patient admitted to the ICU where Dr Nganga, a senior anaesthetist at the Hospital was called to assist the 1st defendant but by the time he arrived the patient’s heart beat had been restored.

330. According to the 2nd defendant, when later she discussed the incident with the 1st defendant, asking her what went wrong, the latter informed her that the patient was apparently alright during the surgery till the end of the procedure when she noted the cyanosis as she was reversing him and in fact had turned off the anaesthetic gases. At the time when she noted that the patient was cyanosed, the 1st defendant stated that the reading of the oxygen saturation was 89%. However, when the 2nd defendant spoke to the anaesthetic assistant after the 1st plaintiff had been resuscitated in the Day Care Unit, as he was being transferred to the ICU, he informed her that he had been monitoring the patient during the procedure and had not noted anything wrong. According to the 2nd defendant, usually an alarm goes off during monitoring when the patient’s oxygen saturation drops but she did not hear an alarm go off at all during the surgery.

331. Once the 1st plaintiff was in the ICU and stable, the 2nd defendant contacted the 2nd plaintiff and informed him to go to the Hospital and after discussing with the 1st defendant and Dr Nganga, it was agreed that as the admitting doctor, the 2nd defendant would be the spokesperson. In their presence, she told the 2nd plaintiff what had transpired. According to her, the 2nd plaintiff was shocked and asked what might have transpired but they were unable at that time to give him a conclusive answer. They then accompanied the 2nd plaintiff to the ICU to see the 1st plaintiff. Thereafter, the 2nd defendant spoke to the 3rd plaintiff, the mother of the 1st plaintiff, and informed her what had happened. According to the 2nd defendant they were all in shock and it was not clear to them what had gone wrong.

332. As the afternoon progress, it became clear that the 1st plaintiff had suffered significant cerebral insult as a result of anoxia and was therefore sedated and paralysed and put back on the ventilator. The 2nd defendant therefore suggested to the 2nd plaintiff that in view of the situation, a neurologist was required to help in the management and the 2nd plaintiff suggested Dr Amayo/Kwasagroup. The 2nd defendant then contacted Dr Kwasa and Dr Amayo was requested to see the 1st plaintiff that evening.

333. According to the 2nd defendant, on Saturday, 12th February, 2005, in the evening, the 2nd defendant expressed his concern that the 1st plaintiff was staying in the ventilator for longer than 48 hours and requested the 2nd defendant to talk to the neurologist about this. The following day, 13th February, 2005, in the morning the 2nd defendant discussed the issue with Dr Amayo who indicated that he would review the patient at 9. 00 am that morning since he also thought that a 48 hour sedation was sufficient. At 9. 00 am the 2nd defendant went to the ICU but Dr Amayo had not yet arrived. However Dr Amayo telephoned the ICU doctor, Dr Thanga, and according to Dr Thanga, instructed her that the 1st plaintiff’s sedation and paralysis be stopped at 5. 00pm that evening which would be 48 hours after it had been commenced. The 2nd defendant called Dr Amayo to confirm this and Dr Amayo stated that at reversal he expected a gradual change in the 1st plaintiff’s condition overnight as the effects of the sedation wore off. Dr Kwasa who worked with Dr Amayo also and the 1st defendant also went and reviewed the 1st plaintiff later that morning with Dr Thanga and the 2nd defendant informed the 2nd plaintiff about the plan by the neuroteam to stop sedation at 5. 00pm that evening.

334. At about 7. 00pm that evening, the 2nd defendant was called by Dr Chunge who was in the ICU with the 2nd plaintiff that there was a problem with reversing the 1st plaintiff and the 1st defendant was unable to advice the ICU doctor on what to do. After failing to get the 1st defendant, the 2nd defendant called Dr Moniz who told her he was within the Hospital and would assist. When the 2nd defendant arrived at the ICU about 10-15 minutes later she found that Dr Kwasa had already been contacted by phone and had instructed the ICU doctor on what to do. According to the 2nd defendant, Dr Thanga had not been sure on whether or not to reduce the dose of dormicum that the 1st plaintiff was on. That evening the 2nd plaintiff informed the 2nd defendant that he was extremely pained and angry that the 1st defendant had not been available for consultation during the time of the reversal at a critical time when he felt that her input was required. Later when the 2nd defendant contacted the 1st defendant she found that the latter had already gone to the ICU and reviewed the 1st plaintiff and upon being informed of the 2nd plaintiff’s feelings, she expressed regret that she was not traceable by cell phone due to poor network where she was that afternoon.

335. On 13th February, 2005, the 1st plaintiff was transferred to the HDU by which time Dr Moniz had been requested by the 2nd plaintiff to manage the patient and the 1st defendant was therefore nolonger attending to the patient. The 2nd plaintiff also officially raised a complaint to the hospital director about what had happened to his son and his dissatisfaction with the conduct of the 1st defendant.

336. According to the 2nd defendant she was requested by the Hospital Medical Advisory Committee (MAC) Chairman, Dr Joshi to speak to the 2nd plaintiff and request him to attend a meeting at which the 1st and 2nd defendant would explain the events of the day of the surgery and the subsequent management and though initially the 2nd plaintiff was reluctant to attend, she managed to convince him to do so and the meeting was held on 17th February, 2005 at 7. 00 am in the Medical Advisory Committee Office Nairobi Hospital under the chair of Dr Baraza and attended by other doctors including the 2nd plaintiff, the 1st and 2nd defendants. During the said meeting the 2nd defendant explained what had transpired and the 2nd plaintiff wondered why the there was a change of the anaesthetist and the 2nd defendant informed him that she was also puzzled that Dr Moniz did not avail himself for the surgery despite promising to do the case.

337. According to the 2nd defendant, Dr Moniz initially claimed that he was not alerted that the patient had arrived by the nursing staff and then later said that he was not informed that it was a doctor’s child. The 2nd defendant informed him that if he knew he was not going to be available he should have informed her in time to enable the b2nd defendant get an anaesthetist of her choice which she had in mind. The 1st defendant was also explained what could have caused the patient’s cyanosis and eventual cardiac arrest and whey she was not available during the reversal.

338. After a week the 1st plaintiff was transferred to the MCF ward and the 2nd defendant continued to follow up on him daily during which time his nasal injury healed well under the management of Dr Amayo and Dr Moniz. After two months he was discharged home.

339. According to the 2nd defendant, the 2nd plaintiff on behalf of the plaintiffs subsequently lodged a complaint with the Board which considered the matter and recommended that the matter be heard by the Board’s Tribunal. After deliberations, on 29th November, 2008, the 2nd defendant was fully exonerated from any professional misconduct or negligence in the matter.

340. In her oral evidence, the 2nd defendant reiterated the foregoing and added that explained her qualifications and her personal relationship with the plaintiffs’ family. After discussing with the 2nd plaintiff the option of observation and surgical invention, the 2nd plaintiff preferred something be done. So the plan was to do nasal reduction. However it was necessary for the swelling to subside before the reduction could be done and they decided to allow some days for the swelling to subside and planned to do procedure on Friday 11/02/05. According to the 2nd defendant, a day surgery unit is a theatre where surgery is done and patient discharged the same day. She explained that the choice of the anaesthetist was made on 8/02/05 with the 2nd plaintiff who indicated he was happy to have Dr Moniz as the anaesthetist.

341. According to the 2nd defendant on 11/02/05 she arrived in the theatre at around 10. 30 am and the first thing she did was to see the patient and inquired if they had any questions. She confirmed that she was late because the procedure was to be around 10. 00a.m. On that day, she did not perform any pre-operative assessment as she had already done the assessment. When she went to the nursing station to check on where things were as regard on the list, she was informed by the Nurse in the theatre that Dr Moniz was not available and was at M.P. Shah Hospital and was not able to come. She called him on telephone and made an attempt to get another anaesthetist within the hospital but was unable to do so. However, Dr Moniz informed her that he had made arrangement s with the 1st defendant to step in for him.

342. After contacting the 1st defendant but before the 1st defendant arrived, the 2nd defendant discussed the choice of drugs with the 2nd plaintiff who accepted that the 1st defendant could step in after the 2nd defendant confirmed that she was comfortable with the 1st defendant. Therefore the 2nd plaintiff was aware of the 1st defendant’s involvement. The 1st defendant arrived some minutes before 11. 00 am and after assessing the 1st plaintiff she was satisfied with the assessment and indicated the patient was fit for anaesthesia and they went to the theatre to proceed with the procedure.

343. According to the 2nd defendant, as far as she was aware there were no issues with anaesthesia. She watched the anaesthetist while anaesthetising the patient to ensure that blood does not go into the lungs and she was satisfied. According to her the process of anaesthesia involved the use of drugs she was not involved in the choice of drugs as that is the role of the anaesthetist. To her she had no choice as to what medication is to be used by anaesthetist. Similarly, the decision of when to commence the procedure is on the anaesthetist who gave them the go ahead to start. The patient was fully draped meaning the rest of the body save for the Nose including the head was fully covered. The eyes were strapped and the mouth was not visible.

344. After describing the procedure for manipulation the Nose, the 2nd defendant testified that while dressing and putting the external splint may be longer, the actual manipulation is within short time and that the actual procedure could have been 10 minutes during which period she was not made aware of anything and did not notice anything. She confirmed that she did not hear any alarm nor anything untoward and the anaesthetic team did not alert her of any problem. It was her evidence that she had no reason to make incision and the patient did not bleed much for one to notice the colour of the blood.

345. According to her, when she completed the procedure the nurse started removing the draper and she stepped back to allow the anaesthetic team have access to the patient to go about the process of reversal. She confirmed that she was in the process of taking off her gloves when they informed her the patient was blue. She immediately moved forward and they noticed there was a cardiac arrest and she stated cardiac Massage. Upon checking the endocrinal tube that had she saw that the colour was changing to pink and she sucked out the throat using the tube. According to her, the process of reversal depends on the drugs anaesthesia administered but it is normally 10 minutes. The draper had been taken off when she moved back.

346. According to the 2nd defendant, during the procedure the patient’s head was directly in front of her and she would be on the patient’s right side with the scrub nurse the other side only and only once did the scrub nurse move to the top to see the alignment. The anaesthetist and the anaesthetically monitors are near the abdomen. According to the 2nd defendant she was not concentrating on the monitors but the surgical work she was doing.

347. She reiterated that after they took the patient to the ICU, it appeared there had been same hypoxy-brain having been for considerable time starved of oxygen. A decision was made between the 1st defendant, Dr Nganga and the ICU team to put him in artificial coma. At that time nothing was discussed other than the problem and they never went into the details. Later when the 2nd defendant discussed the matter with the 1st defendant, the later was not sure of what might have caused the problem. Similarly when she asked the anaesthetic assistant, he did not seem to be sure of what happened. According to the 2nd defendant normally when the oxygen is not sufficient the anaesthetist would alert you and this would be deciphered for the clinical of examination or from the monitors. If the oxygen drops below a certain level the equipment would alert you.

348. According to the 2nd defendant, the problem in reversing the patient was that when the sedation was being weaned off something was not going as expected in terms of waking up, though she was not involved in the decisions regarding the reversal and medication being administered. The problem according to her was that the parents wanted an input from the anaesthetist concerned but they could not get through to her.

349. The 2nd defendant testified that she could not remember being reprimanded by SAEC and never received a letter questioning her conduct by the Hospital. It was her evidence that her lateness did not compromise her case and management since the procedure was not rushed and she was not under any pressure to conclude the procedure due to other patents waiting. According to her normally if the theatre is running late you would be called. She however reiterated that they did not discuss the case in the surgery and she was not made aware of the changes in the timetable. To her, lateness occurs in theatre. She explained that she carried out pre-operative assessment in her clinic and found there was no reason not to go on with the procedure. In the 2nd defendant’s view, the plan of management was according to medical standards and she did what was expected of her under the circumstances and there was distinction between surgical case and other case. According to her, her role as a team leader refers to putting the team together but each member had a role to play. She was the primary decision maker in the sense that the patient was admitted by herself but once he came out of Post-operation management and went into the hands of neurologist she did not play major role since her team leader role was critical to the procedure. She however could not take responsibility for administration of drugs as this was done by someone more qualified in the circumstances. To her there was no reason to stop surgery and check the monitor readings. She did not think that she was negligent in the case management of the 1st plaintiff and whatever happened was not due to her action with regard to the surgical procedure since where she could participate she did but where she could not intervene there was nothing she could do.

350. With respect to the 1st plaintiff’s condition, she did talk to him some months before her testimony and that though he tried to recall who the 2nd defendant was he failed to do so. She admitted that he has clearly suffered the consequences which is tragic and something she thinks about to date.

351. In cross-examination by Ms Nungo, learned counsel for the plaintiffs, the 2nd defendant stated that in the day surgery unit the procedures conducted are fairly minor without huge blood loss and it is conducted on patients who are not sickly but fit and healthy. According to her the 1st plaintiff’s procedure was a minor one and was a cosmetic procedure – one in which you are dealing with anaesthetist in terms of alignment. It is not mind boggling. A patient’s booking is meant to be made so as to organise the theatre for the day to plan for various requirements for the procedures and ensure the procedures fit in the time frame. It also to avoid double booking at the same time. She booked the J for 10. 00 a.m by her clinic nurse. According to her, the patients is normally instructed by her clinic nurse to arrive at least one hour before for any pre-operative assessment to be done and preparations by theatre unit team. She however confirmed that she was the primary care giver and considered herself the team leader with other members being the anaesthetist, the scrub nurse who assists her and the running or circulating nurse assisting the whole team. She conceded that as the leader of the team she would feel a moral obligation over the patient.

352. The 2nd defendant conceded that on 11/02/05 she was late and was asked about it by the SAEC. She however explained that she was on her way driving to the theatre when the hospital called her and she told them she was running late since she had started her day doing surgery in a different part of the town at Gertrude’s Hospital. She stated that she communicated with Dr Moniz after she arrived at theatre though normally you find the anaesthetist at the theatre and she expected that in the event that anaesthetist was not going to available they would inform her since they normally call if the anaesthetist is not available. In this case if Dr Moniz was not going to be available he would have been expected to call her. In her evidence, when she arrived she did not see any rush. After she found out that Dr Moniz was not there that time she tried to find someone to come and the person would have had to hastily gone to the theatre hence there was no reason to postpone the procedure.

353. Referred to the statement of Sister Rosemary Kaviti, the circulating Nurse, that the procedure was rushed, the 2nd defendant said she did know what she meant since she did not discuss with her the option of postponing and only discussed Dr Moniz’s absence. In her evidence she was not aware that the nurses were rushed. She however confirmed that there was another patient but did not know the case. According to her even had she arrived early there was still a possibility of eating into the other patient’s time since this is a very normal thing. She confirmed that Catherine Kibucho was her Scrub Nurse but denied that she rushed the nurses. According to her, if the nurses were rushed it could be due to something but agreed that the team need to work in harmony. She confirmed that the patient was booked with the ECG Monitor which gives reading of heart rate respiration and oxygen levels while the monitor gives readings in pressure and carbondioxide. She confirmed that she saw the monitor which was making a very soft sound normally a beep synchronised with heart beat. She however agreed that the anaesthetist can turn the volume and that it is possible to hook the machine on the patient and it can produce a sound when volume is low. She however insisted that she did not hear noise pertaining to the alarms. To her while admitting that the beeping was not very loud she stated that it is highly unlikely there would be no beep and believed there was a beep though it can be very soft. She however did not see the drugs since she was not right next to the machine but at a distance. According to the 2nd defendant had she heard the alarm she would have ask why the alarm was on. Though she can argue with the anaesthetist she has to take their word in absence of any alarms. Usually the beeping comes for the heart rate and she was not made aware of the change in the soft beep and did not recall any change to character of the soft beep. However, as at the time of cardiac arrest there was no beep but there should be a loud alarm.

354. While recalling the evidence of Prof. Raja who testified on her behalf and whom she agreed was an expert, she however disagreed that his approach in detailing is the case since not every single surgeon checks everything on the oximeter though it is a good practice. In this case she was confident the patient had no issues. She however agreed that hypoxia would not occur at readings of 88 – 90%.

355. She explained that she stepped aside to allow the anaesthetist have access to the patient but stood by the patient and did not leave the theatre. She however did not anticipate further surgery from her surgical point of view she wanted to secure the throat so that the blood does not go into the lungs. Since she was satisfied she went to scrub. To her it is the job of anaesthetist to intubate the patient though sometimes it is forgotten. According to her inflation of the Cuff is an obvious thing but sometimes they forget to put in pharyngeal pack. It was however her evidence that it is difficult to monitor the machine while carrying out the procedure because the monitor does not face her but faces the anaesthetist. She could keep going from her place to the monitor unless something disturbs her. If the beeping is loud you can detect the change but if not you may not notice. It was therefore her evidence that the patient was being monitored by anaesthetist while she was concentrating on her procedure. She however disclosed that some monitors are tuned very soft and once she started her procedure she would not constantly monitor the Machines. Though she would be comfortable in the well being of her patient, she did not hear untoward sound from the monitor. She however admitted that it looks like the patient was not closely monitored though she denied that there was no communication or attitude. To her there was communication at start the procedure which was very short. She however could not tell if someone knew something but did not tell her. She however agreed that it was strange that they ended up in this problem without hearing an alarm. According to the 2nd defendant, she could not rely on what the 1st defendant said as the reading must have dropped at some stage. But there was no indication that something was wrong and agreed that people should be alert for things which can go wrong in such situations.

356. Referred to the composition of the Board, the 2nd defendant admitted that they are specialist in array of fields and most of them are involved in surgical aspects. According to her, the Board found her not guilty of infamous or disgraceful conduct or negligence.

357. After detailing what she did in pre-operative assessment, the 2nd defendant testified that cyanosis is when mucus lining is blue as opposed being pink in colour, meaning not well oxygenated. She explained that peripheral cyanosis means that oxygen is not present while central cyanosis means lack of oxygen generally. In the 1st plaintiff’s case he had central cyanosis which takes about 2 minutes to set in something like 5 minutes. However there was little bleeding which was normal colour in colour. According to her she spotted it on clearing the nose. The 2nd defendant emphasised that the procedure was very short and she could not appreciate central cyanosis because his mouth was covered. She however admitted that it is a possibility that central cyanosis may have set at the time of manipulation but she could not be certain. Referred to bundle B page 134, Prof. Raja’s opinion, she agreed that the drop must have been less than 70% oxygen. She reiterated that once she started the procedure she was not concentrating on the beeping sound but on the reduction of the nose and her eyes were glued on the patient. Having listened to the accounts of the specialists, the 2nd defendant felt that the problem had to do with the drugs which were administered though there are many things that were not done such as the sealing of the theatre and the drugs were not accounted for and the monitors examined. She however disagreed that she did not perform her role well.

358. Cross-examined by Mr Githaiga, the 2nd defendant insisted that she informed the 2nd plaintiff of the change in anaesthetist and he accepted the change and asked if she was comfortable. She however disclosed that she had a number of anaesthetists she normally worked with. However the incident would have happened with any other anaesthetist i.e. change of anaesthetist. According to her Pre-operative assessment depends on the individual and there is no laid down period of pre-op assessment.

359. According to her, the alarm depends on the settings of the machine though she admitted that she was not familiar with this machine. The alarm is ordinary louder than the beep. In her view, taking into account the reader of what happened vis a vis the drugs, would have shed the light. The transcript from monitors would have assisted and this would probably with the Hospital in Hospital records. In her testimony she did not recall any one before the Board saying the patient was not hooked to the monitors. She however confirmed that cardiac arrest can result from lack of oxygen or reaction to the drugs and if heart stops as a result of the first reason other muscles would be affected. She however stated that cyanosis is a sign of hypoxia and it takes about 5 or so minutes for cyanosis to set in when there is lack of oxygen.

360. Cross-examined by Mr Kiragu, the 2nd defendant stated that she was a consultant and not an employee and only had admitting rights. According to her, consultants are usually specialists and the 1st defendant was also a specialist and is qualified as a doctor. However, the technician is not qualified as a Doctor and she did not believe they have medical qualifications. Referred to the qualifications of David Mweke, the technician, she stated that there is a world of difference between the technician and the anaesthetist.

361. She however admitted that theatre monitoring can be through the machines and clinical monitoring and that the technician should be more involved with the monitors themselves. According to her, each member of the team has specific roles and the others are scrub nurses who assist the surgeon with equipment and other requirements; the circulating nurse who provides support to the team and ensures instrument are hooked up etc. to support the team; and the technician who works hand in hand with anaesthetist. According to her, ordinarily the technician would report problem to anaesthetist since the surgeon is usually 100% focused in what he is dong. In her belief, the technician cannot override the anaesthetist and it would be unusual for the technician to approach the surgeon directly.

362. The 2nd defendant stated that she did not receive information that the procedure was to be rescheduled and the delay in her view did not affect the procedure. When she picked Dr Moniz the 2nd plaintiff concurred in the choice. However, Dr Moniz identified the 1st defendant and she got concurrence of the 2nd plaintiff. She however reiterated that she was not consulted on the choice of drugs to be used for the procedure since it is the practising norm that the anaesthetist is the sole decision marker. They are expects to carry out own pre-operation assessment. However, the 1st defendant did not carry out the assessment in her presence though she took her to the patient since if she does not see the patient first you cannot proceed. She had to carry out the assessment and inform her if she was happy. According to the 2nd defendant, the 1st defendant took a few minutes about 10 minutes. However, the 1st plaintiff had been reviewing at her clinic where she spent with him 15 minutes or so.

363. According to her, the reduction itself does not take long though dressing and aligning the nose takes a bit longer. You have to align the bones and try to secure their position then protect it with external splint. Approximately this takes less than 10 minutes. The putting off the patient to sleep and reversing takes about 5 – 7 minutes before the start. This is after draping by surgeon by the Scrub Nurse. The time between inducing the anaesthesia and placing patient in surgical position take about 5 minutes. After that you do the next draping and insertion of tubes about 2 minutes. It can take 5 minutes to put the patient in sleep. Reversal depends on the medication but cannot last more than 15 minutes; generally 5 minutes. Generally speaking the Scrub Nurse undrapes the patient. According to her, she did not notice that the patient was blue when she was removing the drapes but was shocked and wondered if there was something wrong with this injury. The 2nd defendant reiterated that though she did not disclose to the PIC that there could have been a problem with the drugs, in retrospect, after listening to the experts she formed the expert opinion before the Board and the court there could have a problem with the drugs. Apart from the drugs, the 2nd defendant was of the view that equipment failure was possible cause and that the anaesthetist oversees the equipment. She was however of the view that the transcript would have helped. While not sure whether all machines produce transcripts, in normal course they should. According to the 2nd defendant, clinical monitoring entails checking fingers and nails checking the colour of the patient and the pulse through monitors or just feeling it. When she became specialist in 1990, there were machines though not as sophisticated. She stated that the anaesthetist are supposed to use both clinical monitoring and monitors as machines can make mistakes.

364. The 2nd defendant however conformed that the process of reversal starts once you start winding up and by the time she was removing her gloves the reversal was in progress but she was present when the patient was undraped but did not notice anything. According to her, unless the anaesthetist indicates there is a problem she would not come back but would just observe till the OK is given to leave the theatre.

365. According to her, since cyanosis would take approximately 5 minutes to set in, the patient would not have been alright till end of the procedure and that cyanosis most likely set in fairly early. According to her, the anaesthetic team connects the patient to the machine by technician under supervision of anaesthetist. However, before draping the1st plaintiff was connected to the monitors. Though it was not her job to confirm that the equipment are in order, it was her testimony that the monitors were working at the beginning of the procedure but she could say they were working well. The 2nd defendant stated that she did not recall saying the place was quiet and there was absolute silence. According to her the only comment the 1st defendant made throughout the procedures was that there was swelling and pointed the side but she did not move away. Referred to page 126, she admitted that she probably said the patient was not properly monitored which was the responsibility of the anaesthetist. She however admitted that something was going on and they missed it. She did not know whether volume of alarm is adjustable.

366. In reference to Mr. Mueke’s statement, the 2nd defendant explained that she did not hear any alarm going on and that if there is any problem the technician would go to anaesthetist many times. While admitting that the machine fall during procedures, she stated that consequences are never as tragic as in this case since clinical monitoring can ensure things do not go wrong since clinical mentoring would have avoided the cyanosis. It was her view that the technician has no role in clinical monitoring. She agreed with Prof. Raja’s statement in the plaintiffs Bundle B Page 134 that hypoxic should have been picked earlier whether machine were faulty or not and agreed that hypoxia must have been there for some time. However, she agreed that if machines were faulty there was problem with the monitoring which was the primary responsibility of the 1st defendant. The 2nd defendant disclosed that she has came across cases where alarms go off and they are switched off if the anaesthetist knows why it is beeping. Therefore even if the alarm went off the anaesthetist told her there was a problem she would not stop unless she was told to stop. She however agreed that it was not possible to state that the machines were not functioning. However, cardiac arrest depends on what is causing it hence it may occur even in high saturations.

367. In re-examination, the 2nd defendant reiterated that her procedure was no rushed due to the lateness and that Rosemary Kaviti did not give her the option of not doing the case. She was also not aware that there was delay of another patient. According to the 2nd defendant the nurses were neither rushed nor harassed otherwise they would have left.

DW4’s evidence

368. In support of her case, the 2nd defendant called Prof. Herbert Ouma Obura, a Professor in the department of surgery, University of Nairobi having been a consultant ENT, head and neck Surgeon. In his witness statement, DW4 explained the procedure where a surgery is to be undertaken.

369. In the instant case, DW4 stated that the field involved was nasal bones and cavity. According to him, it is very unlikely that the surgeon could inadvertently physically interfere with anaesthetic gases/oxygen delivery unless one was dealing with severe compound and complicated maxillary fracture involving the nose. The only way the surgeon could compromise the anaesthetic delivery is if there was bleeding which trickled backwards and accessed the voice box and hence the lungs which was very unlikely because in this case the voice box and hence the airway was protected by a cuffed endotracheal tube and further reinforce by a throat gauze patch as is the usual procedure.

370. It was his view that it would have been helpful to know if the servicing of the anaesthetic machine was up to date and if after he event, the machine was suitably identified, isolated and assessed by uninterested parties. It was also interesting that the printout which can usually be obtained from the machine immediately after surgery was not obtained as this would have thrown some light on the biochemistry of the patient and hence corroborate suspicions.

371. In his oral evidence, DW4 testified that in early days the anaesthetists were nurses and in these circumstances the surgeon took responsibility of only anaesthetist mishap during operation. As medical practice Progressed it was found that anaesthetist practice was much more complicated to be handled by nurses and paramedics and it was decided that anaesthesiology be a speciality of its own and hence the consultant anaesthetist became autonomous. He has to examine the patient and decide whether fit for surgery and can vet whether the patient can go for surgery. According to him monitoring the well being of the patient, keeping the patient alive is the responsibility of anaesthetist but surgeon may interfere in certain circumstances. Though some equipment are good and can be heard by the surgeon, it must be appreciated however that he cannot keep one ear on the audio and the other on the anaesthetist. It is the anaesthetist to decide whether the warning is significant. The overall monitoring of pulses and cases etc. is the sole responsibility of anaesthetist. It was his view that in the operation of nose like this there is definite separation of mouth and the throat by the patient and it is unlikely that the surgeon will interfere with the airway. So there is a distinction. It is unlikely that the surgeon will be involved in the airway. The only way would be where there is bleeding during the operation. In this case there was no cutting. It was closed reduction though sometimes there can be bleeding. If it occurs the tube has protection to stop blood getting into chest. The said line of defence is called in a tube cuff in the tube. The first one is called a pack which he notice was installed which stops fluid from the mouth and throat getting into the chest. The second is the tube has alumni instead through the mouth to windpipe if there is a danger of fluid going the tube seals and prevents this. According to the witness, he did not see evidence of bleeding.

372. According to DW4, In this case assuming the machine is working well it is usually the first alarm system. The machine shows levels of oxygen in the blood not high carbon dioxide not to go low and the blood pressure and the heartbeat. It also shows the machine controlled rate of breathing. The second line is the features to be observed on the patient cyanosis means the patient turns blue when oxygen is low which is easily observed on people with fair skins. However by the time you observe it on black skin it is usually a late phenomenon and if you wait for it you will likely lose the patient or injury. When they operate they drape the patient and only leave the area of surgery – the nose as the mouth and eyes are covered. According to him, the surgeon is on top not looking at the nasal opening. Inside is pink so he cannot see cyanosis due to nasal cavity. The best place to see cyanosis would be the lips and the eyes which are usually covered.

373. It was his evidence that in ENT surgery if operating in the larynx, mouth, throat and windpipe the surgeon may inadvertently interfere with anaesthetic system, he may injure the cult which does not happen when operating in the nose as was the case here. Vasovagal reflex is usually a situation when predisposed people to this problem easily faint because of the hyperactivity of the veins nerve. It may reduce the blood pressure. This is phenomenon observed in experiment and occurs in certain people. In surgical it is difficult to pinpoint that this actually happened though it is just a possible phenomenon.

374. According to DW4, The auxiliaries of anaesthetic machine are tubes and gases which have to be serviced regularly to make sure they work. Pulse oximeter is part of its auxiliaries and if he pulse goes down the alarm will set off. According to him, the good practice where such an even occurs is that the Anaesthetist machine should be isolated and sent to an uninterested party to access its functionality. It would show what happened in terms of blood volume etc. how the oxygen levels deteriorated whether sudden or not, if carbondioxide gradually went up or down. Further one can get enough idea of what happened.

375. As regards the doctrine of the captain of the ship, he stated that the surgeon is what is called the Team Leader, the coordinator. However in theatre, responsibilities are well defined and surgeon cannot take the responsibilities of anaesthetist. He can only share them if he cannot take responsibility of anaesthetic. If any surgeon decides to operate without a qualified anaesthetic he takes responsibility since he is the only qualified medical practitioner. The witness did not notice any surgical fault in this case.

376. Cross-examined by Mr Githaiga, DW4 stated that the first alarm system is the machine and that there is a lot of reliance on the machine because it would give the alarm earlier. While there is 100% concentration of oxygen, most are set at 90%. By the time it goes below the machine would indicate and cyanosis occurs when level goes below 70. Sometimes machine tell lies so you have to corroborate this. As seasoned doctors you should relate what on the machine states with what he observes on the patient. For example if oxygen is low the carbondioxide must be high hence most anaesthetist will physically feel the patient.

377. While appreciating that vasovagal process was a possible phenomenon and could be picked it up if there was history such as fainting history, in the absence of positive history, it was difficult to prove that he had vasovagal reflex. But it could be suggested from the readings from the machine. If there is sudden drip in blood rare etc.

378. According to DW4, in surgical operations the anaesthetist, surgeon or patient could be at fault and the machine must be shown to be working well since there are situations where machines have stopped to pump appropriate oxygen but continues to pump in anaesthetic drugs and the patient may die. The machine can give wrong information dangerous to the patient. In the case the machine should give an alarm if working well. It was his view that it is good practice that the anaesthetist machine should be examined and the anaesthetist should see to it that it is checked by an uninterested party and should not be used in the next operation. This process should be done by the anaesthetist and the hospital.

379. Cross-examined by Ms Nungo, DW4 stated that patients are examined by both surgeon and the anaesthetist. Examination entails the history which is relevant to the injury. If anaesthetic is necessary it will be relevant to anaesthesia which may impact on use of anaesthesia. He will then call anaesthetist to do further investigation relevant to the fields. Good practice needs documentation of all features in the patient and that they rarely conduct examination in the theatre after doing full physical examination since by then the surgeon has made up his mind. In his view, it is possible that at the time of surgery something may have happened in between. However, depending a why you are taking the patient to theatre, unless something has happened necessitation of examination it would not be necessary since it is assumed that full medical examination was done whether they systemic is illness or just trauma since it is unlikely that systemic illness will occur in two days. Where there is systemic illness you need to examine regularly to determine where it has reached. In this case however, the patient had localised trauma disease. Systemic illness means heart disease, lung disease, or on blood disease apart from what he has. He however agreed that a patient can develop on attack. So you should ask whether anything occurred in the intervening period. Examination however mean putting the patient or the table and examining the patient. In medical terms physical means touching while history means the questioning. Examination means all these investigations including examination but physical examination does not include laboratory test. So you would take examination both before and when about to conduct surgery. According to him, good practice means you record everything and document each and every finding.

380. While appreciating that the surgeon is the co-ordinator who makes sure the patient knows what is going and what will happen in theatre, DW4 however stated that he does not take professional responsibility of his professional colleagues. As a Team Leader you have responsibility for the possible outcome since to the patients the surgeon is his doctor. Every professional wishes positive outcome so the surgeon’s responsibilities to the patient must be taken in this perspective. However all professionals cannot take responsibility if one is wrong. He therefore disagreed that all are responsible unless it means concerned but not culpability.

381. According to the witness whereas central Cyanosis comes in peripheral areas close to blood supply nose, eyes etc. ordinary cyanosis comes when the body is exposed. If cyanosis occurs only in exposed areas due to cold you do not get alarmed as opposed to Central cyanosis. In this case the patient most probably had Central cyanosis, in view of overall assessment since the theatre is heated. According to him, so long as you reach a certain level of blood you can reach cyanosis – it does not depend on the time. The procedure takes about 10 minutes so it must have been inordinate. According to him, in Central Cyanosis the colour of blood is dark blue. If there is bleeding one can tell whether there is cyanosis depending from where the bleeding occurs. But what matters is when bleeding was noticed because the anaesthetist stated she noticed bleeding when reversing the patient.

382. He explained that hypoxia means low levels of blood hence vital organs being starved of oxygen. According to him, hypoxia may have set in earlier but not cyanosis. Appearance of cyanosis depends on the range since the two do not necessarily follow each other. It may lag or may not these depends on genetics. Cyanosis is caused by low oxygen but how it causes change of colour is what depends on generic make up. It is the oxygen levels that cause cyanosis.

383. According to him, proper communication reduces incidence if the anaesthetist recognises the problem. However, if he does not then communication would be irrelevant.

384. According to him, the machine that was involved on the patient is called boylses machine, the first generation of anaesthetic machine in Nairobi. It is an improvement of Boyles machine. It measures oxygen, Carbon dioxide levels and volumes of blood, blood pressure and heart rate. However, recently all the auxiliaries are incorporated into Boyles machine. According to him, the original Boyles machine only had anaesthetic exit on which it was hooked on oxygen cylinder the ECG Machine was on the side and the blood pressure machine was also the side. But recently the machines are all fixed on Boyles machine. Parameters are usually set within the normal parameter and it makes a beeping noise. The tone is high when things re normal but when abnormal the tone go low. There is also an alarm which goes off when it reaches a certain level. The first one is the pulse machine. The alarm will however switch off and make noise. Oxicarp measures oxygen in the blood. There may be two monitors but are hooked to anaesthetic machine. ECG shows value of heart beat and shows if heart muscle has been injured by hypoxia, low levels of oxygen and rate on heart beat. Before surgery you normally take cognisance of the normal beep sound. It shows the patient is ok. According to him, the machine should be regularly serviced. If records are shown it reduces the chances that the machine was responsible. Reliability of machine depends on the service before the event if it was not overly overdue. The records would show when hypoxia started and would also show that even when the machine was giving normal sound there was hypoxia. This printout is of the memory of the machine.

385. Apart from the professionals the other staff are subordinate but must be comfortable to work so they can tell you that they are misled though not common. If the machine was used without problem later it may mean it was ok or that the problem occurs transiently. However, the mere fact that the machine was used later without problem does not necessarily mean it was ok. However in DW4’s view it would be careless to use the same machine without being tested and the fact that it works well on the subsequent patient does not rule out the fact that it was defective. Even if nothing happened the machine should have to be isolated.

386. According to the witness, the assumption is that he surgeon is listening but his attention is not on the audio. He may notice cyanosis. He has a duty to monitor but not as intensively as the anaesthetist. If he divides his attention between surgical and anaesthetic procedure his surgery will suffer though somehow he get to hear the audio. A cosmetic procedure like this one as you are reducing the fractures that needs attention. This brief procedure needs concentration. The length of procedure does not necessarily mean skill. This was a minor procedure because it does not interfere with biochemistry. According to him, most ENT operations are minor but need concentration and are delicate. It was his evidence that when the surgeon comes in, the patient is hooked and when he is told to go on, he takes it that everything is ok. That is why you work with anaesthetist. However, sometimes the machine may be faulty in which event the anaesthetist would tell the surgeon to go on despite the alarm. According to him, if he was the surgeon he would have liked to have the reading to corroborate his suspicions though personally he did not have accurate suspicions.

387. Cross-examined by Mr Kiragu, DW4 explained that he was more authoritative in surgical opinion rather than on anaesthetic equipment. He stated that he was not competent to speak on the dosage of drugs used. He explained that nasal reduction entails whether the patient is fit to undergo anaesthesia and the basic blood watts – haemogram – since it is the blood that carries the drugs around the patient. This would also dictate the dosage of drugs and what drugs to use. If patient has abnormal liver function then you would not use Halothane though he could not answer the case of athletic young man. According to him, if the anaesthetist is on site the paramedic is answerable to anaesthetist and in certain circumstances the anaesthetist may be answerable e.g. in ENT when there is a lot of bleeding the surgeon may instruct that blood pressure be brought down. Otherwise it is the anaesthetist to tell surgeon to stop operating whether something is wrong unless the anaesthetist is incompetent which is uncommon. From his records the witness could not say the anaesthetist was negligent. It was however his opinion that machines are not substitute to physical monitoring by anaesthetist. It is important when the machine and physical features do not agree in which case physical feature take precedence. According to him, you should monitor pulse, blood pressure, and the monitor if there is no cyanosis. The anaesthetist should keep keen watch of the monitor and should do physical examination if it alarms. The responsibility for setting the machine is on the anaesthetist and he did not think the surgeon has a role. According to him, it is good practice and good professional and medical practice that the anaesthetist documents the settings of drugs. However in emergency situations he was not sure that records would be kept. According to him, he valued human involvement because sometimes machines do tell lies. He however did not consider it right to use the machines after an incident since certain machines may have transient malfunction by functioning abnormally under stressful situations and after resting for a time they may work normally.

388. He however asserted that it is incumbent on anaesthetist to take readings of the machines and put them in writing. By suspicion he referred to those who were on the ground so that the cause can be known but if there was other evidence you don’t need printout such as wrong drugs. But the print out can also disapprove the suspicions. According to him, the role of assistant anaesthetist is to do what the anaesthetist tell him to do by connecting tubes and the drugs.

389. In re-examination by Mr Inamdar, DW4 stated that this was an elective surgery – due at convenient time in regular theatre usually called Day surgery with minimum issues in terms of time. In that event they do not re-examine before surgery. In this case the anaesthetist did examination before surgery and hence would have been picked up by the anaesthetist. In that event there would be no need for surgeon to re-examine.

3rd Defendant’s Case

DW5’s evidence

390. At the close of the 2nd defendant’s case, the 3rd defendant called David Kyengo Mueke, an employee of the 3rd defendant as a theatre technician at Nairobi Hospital as DW5. Having set out his training, DW5 in his statement stated that a heater technician overseas the anaesthetic machine which the doctor uses for induction to ensure it is operational and that the table to be used is appropriate since there are different types of tables depending on the nature of the surgery. He also ensures that the lights are operational and he is required to check all these things upon reporting on duty at 7. 00 am since in most cases, planned surgeries start at 8. 00 am.

391. According to him, on the day of the surgery in question on 11th February, 2005, he reported at 7. 00 am, changed into uniform, entered the theatre and checked the anaesthetic machine and lights which he found in order. In the anaesthetic machine, he checked the standby oxygen cylinders to confirm that they had adequate oxygen since the machine itself is supplied through a pipeline of oxygen from a big cylinder. He then run the machine and confirmed that the ventilator was working. This check-up took his 5 minutes though it was not recorded anywhere as that was not a requirement then.

392. According to him, he could not remember when exactly the surgery started but must have been about 8. 00 am and the 1st plaintiff’s surgery was the third one that morning. According to him the first two surgeries were quite uneventful and he stayed throughpought both.

393. According to him, the threatre technician helps the anaesthetist in inducing the patient after being told by the anaesthetist what drugs are require which are picked from the drug cupboard. Depending on the nature of the surgery, the thetre technician also assists the surgeons to connect certain machines for example torquiet machine in case of leg surgery.

394. According to him, the 1st plaintiff was a walking patient and he assited him get onto the opetratung table. He however did not see the 1st defendant spek to the 1st plaintiff though he could not tell whether they had spoken outside the theatre though in his experience most in most occasions, any discussions take place in the theatre. Acording to him the induction went according to plan and prior to induction the 1st defendant asked him to mount the ECG dots, blood pressure cuff and the SPO2 which measures oxygen levels hich he did. He could not however remember where the 2nd defendant was when the induction commenced since in mosy cases the surgeon is not involved in it. Some however stay around to oversee the process. He was then asked by the 1st defendant to prepare a south polar cuff tube size 6. 5 and throat pack which he gave to the 1st defendant once the 1st plaintiff was asleep, and the 1st defendant inserted it.

395. Acording to him, the 1st plaintif was then connected to the trunk of the anaesthetic machine by connecting the tube in the mouth and another from the anaesthetic machine. Theerafter DW5 bagged the patient to help him breath by pumping a plastic ball like bag. In the meantime the 1st defendant inserted the throat pack. This was followed by converting the machine to mechanical ventilation. According to him this was a team work between the doctor and the theatre technician. By this time the 2nd defendant was ready for the surgery. According to DW5, the 1st plaintiff was draped except for the nasal area. It was his evidence that he remained in the DSU theatre right through the surgery with the 1st and 2nd, Defendants and the two nurses. It was his evidence that he was about one metre from the 1st plaintiff behind the 1st defendant next to the anaesthetic machine.

396. According to DW5, in the course of the surgery an alarm alarmed and when he checked he was that the oxygen reading in the SPO2 was 90 %. Oxicarp m/o1. According to him the SPO2 machine was set at 90% to warn one that oxygen had started going down. He accordingly pointed this to the 1st defendant who said that the machine was faulty and proceeded to switch it off. During this time the 2nd defendant was carrying out the operation which took 5 minutes. After the 2nd defendant removed the green sterile drapes, the 1st defendant said that the patient’s mouth was blue. At this point when DW5 checked the second machine, the ECG machine connected to the patient, which could record the oxygen level the reading was 35%. This according to him was within minutes of the earlier alarm. In his evidence the second machine had specific setting as far as the alarm levels were concerned set at between 85% and 100%.

397. According to him either himself or the 1st defendant then switched off the mechanical ventilator while he started bagging. In the meantime the 2nd defendant ran out of the theatre for help. While he was bagging he checked the gauges and confirmed that there was adequate oxygen which according to him was anything over 43%. It was his evidence that after the ICU team was called, Dr Mwendwa confirmed that the tube was alright and after they inserted the cuffed tube 7. 0 the patient was taken to the ICU. It was however his evidence that he did not know what happened in the 1st plaintiff’s case since nothing was changed and there was no incident. He stated that that day there were 6 other patients after the 1st plaintiff’s case and that throughout February, 2005, the anaesthetic machine had no problems.

398. According to DW5, other hospitals carried out training for theatre technicians also and in the year 2006 a certificate course for them was started. It was his testimony that when new machines are acquired, all theatre technicians are trained and there is also continuous training from time to time.

399. In his oral evidence, DW5 reiterated the foregoing and testified that he appeared before SAEC to testify on Injury leading to the instant incident and also appeared before the Board to offer evidence on the same. According to him, he was involved in the earlier 2 cases which both went well. He confirmed that they had two monitors, one of which was the Oxicarp which alarmed at 90% oxygen level. According to him, in the theatre were the 1st and 2nd defendants, himself, the scrub nurse, Sister Kibuchi and the circulating nurse, Sister Rosemary Kaviti.

400. The Big Machine is anaesthetic machine ECG and Oxicarp. There is anaesthetic Trolley that has drugs. We also have standing oxygen. It was his evidence that when the machine alarmed him and the 1st defendant were the closest to the machine and his reading was 90% oxygen reading when it alarmed. When the oxicarp was switched off the ECG monitor was still on and it had the sensor and so it was connected to the patient though it was also reading 90.

401. Cross-examined by Ms Nungo, DW5 stated that being a theatre technician, he was an expert in the machines and while admitting that he could not claim to know the machine more than a doctor, he stated that he was a very important part of the procedure since he can give go ahead or not if the machine is not in a working condition. According to him, the Anaesthetic machine must have ECG, Monitor, Oxicarp. On the layout there is a laryngoscope, stethoscope and it was mounted to pipeline supply for oxygen and nitrous and behind it were 2 backups for oxygen and nitrous cylinders which were full. According to him, the Anaesthetic machine is switch on, the Oxicarp is switched on and the ECG is also switched on separately and that if you switch on the machine and not the others, the others will not be on. According to him the Oxicarp cable connects the Oxicarp machine to the finger of the patient and monitors the oxygen levels and the output of the carbon dioxide. It also reflects the pulse rate. In his evidence the patient was connected to pulse oximeter by himself. The ECG Machine also have 3 electrodes which are connected to the patient and they help in tracing ECG waves. ECG dots are the same as ECG Electrodes but the latter means they have been connected. The ECG dot are placed on the shoulder and the abdomen monitors pulse rate, heart rate and blood pressure and oxygen levels.

402. According to DW5, he did not monitor carbon dioxide in this case though he hooked the 1st plaintiff to the ECG himself. He however stated that he is not the one who sets the parameters as his work is only to switch it on. According to him, biomedical Engineers are the ones who set them. In this case anything below 90% must be alerted with the higher being 100%. At above 90 it must produce a sound, a beep sound. If below 90% the alarm will alarm. According to him, the Oxicarp has adjustable levels and the sound can either be higher or lower and this is guided by the anaesthetist though in most cases it is medium. He however stated that he had never seen a situation where there is no sound at all. When he reported in the morning, according to him he confirmed that the volume was medium. However referred to page 276 of Bundle B, he stated that at the time of the operation he did not check He testified that at the time of connection the reading was about 96% and the reading is the responsibility of the anaesthetist. He however could not remember the concentration of carbondioxide though he agreed that the machine would not be right without these other indicators hence important to look into along them. Though he did not record the oxygen level of 35% after the incident he did so somewhere. The ECG machine measure the pulse rate, oxygen levels and the breath levels. The witness however did not know whether the machine had memory. He however confirmed that the patient pays for the ECG dots and they recorded the use of ECG dots for purposes of billing.

403. According to DW5, he heard the alarm a short while after the operation started and that the sound was audible and it was the Oxicarp machine that alarmed when the oxygen level was at 90%. By then they had hooked the ECG and the blood pressure only and it was after the ECG alarmed that he mounted the SPO2 into the machine. To him, the oxygen component was not connected to ECG initially though the pressure was already mounted as well as the pulse. While he admitted that when they removed the draper and the oxygen levels were 35 which was too low, he did not hear alarm from the ECG Machine. He however denied that it was possible he did not hook it or that it was faulty. He confirmed that while the 1st defendant switched at the Oxicarp machine that it was faulty, she did not touch the ECG Machine. He however confirmed that the ECG ought to have alarmed when oxygen levels are low though according to him, it did not take long. He testified that it was after the J turned blue that it indicated 35. Since he was disturbed when the Oxicarp was turned off as he had never seen that he connected SPO2 ECG oxygen to the patient. According to him since his boss was the 1st defendant, he did not alert anyone else because things happened too fast.

404. According to DW5, the machine was serviced before the incident and this is usually recorded by the biomedics.

405. In answer to the questions put to him by Prof Wangai, DW5 stated that though he was the one who connected SPO2 to the patient, he did not say so in the statement. It had alarmed on the Oxicarp. He admitted that he did not set the levels of the ECG hence could be the reason it did not alarm though he insisted that the ECG machine was not faulty. According to him pulse rate is heart rate and the heart was working. He was however unable to explain why the oxygen levels were going low despite the cylinders having oxygen.

406. In cross-examination by Mr Githaiga, DW5 stated that the training they undergo is about anaesthetic machine, its accessories and preparation of the theatre for surgery. Though they are taught about anaesthetic drugs they do not administer them but only handle anaesthetic machine to ensure the machine is cleaned and working. According to him there were two operations before and they were used after and the patient was properly hooked into the machines. He insisted that the alarm went off as it should have done and that they were about 6 people in the theatre. According to him, since the alarm was set in medium, everyone could hear and he did not know why the nurse did not hear it. He however admitted that the machine was not isolated. He admitted that he does not do the servicing of the machine and though the volume levels of the machine can be adjusted, the anaesthetist did not request for change in the volume as they were audible. He was however commanded to clean the machine and proceed with the next surgery by Sister Kaviti, the in charge of the surgery unit and he was not asked to isolate it.

407. In answer to the questions by Mr Inamdar, DW5 stated that both the Oxicarp and the ECG have alarms and the settings on the Oxicarp was 90% - 100% for lower and higher. Between those figures everything in it is in order but when it hits 90%, it alarms. While he insisted that the volume was at medium level, he disclosed that he was not the one who set the volume at medium. As regards the ECG, he also stated that it had an alarm and that he had not checked the settings because it is the one that was connected to the finger of the patient. However, 85% was the oxygen level on the ECG machine and if it hits 85% it should start alarming. He however was not sure whether it alarmed at 85% but when he checked it was 35%.

408. In his evidence, when he checked the machines in the morning he did not check the volumes apart from flow meters and the volume of the oxygen and the nitrous. According to him, it was the biomedic who checked whether the alarms were working and though the machines were used in subsequent procedure and were not isolated, after the incident the biomedics were called to check the machines so it is them who could say what they found. He admitted that apart from him nobody said he heard the alarm and he did not know why since they were all together.

409. In re-examination by Mr Kiragu, DW5 stated that he was trained about anaesthetic machines whether working, whether plugged, parameters of the gases and whether mounted to stand by cylinders and whether full. According to him, they test the machines after checking by biomedics since they must check if machines are working and whether the other accessories are there. By the time they come in the biomedics have done the parameters though the anaesthetist also checks the alarm levels after setting. He reiterated that he did not check ECG setting because the Oxicarp was responsible for Oxygen monitoring and they had connected the ECG monitor. The ECG was to check the reading and the SPO2 the Oxicarp was to check the carbon dioxide output.

DW6’s evidence

410. DW6 was Catherine Wambui Kibuchi,an employee of the 3rd defendant which runs Nairobi Hospital which she joined in February, 1984. According to her, on 11th February, 2005, she was on duty at the Hospital’s Day Surgery Unit as a scrub nurse when the 1st plaintiff walked into the theatre. The patient was put on the operation table and the 1st defendant fixed the cannula and intubated the patient and told the 2nd defendant she was ready after the surgeon and herself draped the patient and only the nose was exposed.

411. According to her, the procedure for reducing the fracture started at 11. 00 am and it took 5 minutes after which they uncovered the patient at which point the 1st defendant said there was no breathing and that the patient’s mouth was blue. Resuscitation was then started and the ICU team called by Sister Kaviti and resuscitation went on for about 30 minutes. The 2nd defendant told them to call another doctor at which point Dr Nganga was called in by the 2nd defendant after which the patient was taken to the ICU.

412. DW6 could not however remember hearing any alarm go off before they removed the patient’s drapes though in other instances, she had heard the alarm of the monitor go off. According to her she stood at the side of the theatre while the 1st defendant induced the patient. She however did not witness any conversation between the 1st defendant and the patient before she induced the patient though the normall practice is for the anaesthetist to see the patient before they go into the theatre. She however conformed that the 1st defendant was present throughout the procedure and there were five people being the 1st and 2nd defendants, David Mueke, herself and Sister Kaviti, who was in and out of the theatre getting the drugs for the 1st defendant.

413. It was her evidence that she participated in other operations both before and after the 1st plaintiff’s the same day using the same theatre and the same monitor all of which went on without incident.

414. According to her oral evidence, DW6 confirmed that she testified before the Board in this matter and the SAEC. According to her, she heard a beeping noise once. There was just one beep not beyond.

415. Cross-examined by Ms Nungo, DW6 stated that her role was to assist the surgeon in the procedure which was her usual role – preparing equipment to be used, giving the surgeon the right instrument and ensuring the theatre is ready for next procedure. According to her, she did not concentrate on the machine but on the patient because the anaesthetist was there to concentrate on the machine. In her evidence, she only heard a low volume beep.

416. She stated that by a patient’s mouth lining blue mean lack of sufficient oxygenation. The machine is set by anaesthetist whether she want it loud, off or low. It is however not normal for it to make one beep as it should go on beeping. If volume is high you should hear even when concentrating on the patient. According to her, the alarm was there at the beginning of the procedure and was going on continuously but she heard the beep after they finished the surgery. It was her evidence that though she heard Mueke talking to the anaesthetist she could not remember what the said and it was Mueke who told her that he was telling the anaesthetist that the alarm had gone off. While she stated that she did not witness a conversation between the patient and the 1st defendant, she explained that since she was in the theatre she did not know whether she saw the patient. She insisted that the surgeon should have heard the alarm and that the oxicarp was not changed. She however insisted that she heard continuous alarm during the start of the procedure but might have forgotten to record the alarm in her report. But it is a significant issue.

417. She insisted that they were rushed since they were running late and the procedure was delayed and they had other surgeries pending with different doctors. Though the patient was given ample time, that day they had many cases and they had to do many cases and because of time they were rushed. It was her evidence that for the time she worked in the place she never postponement of surgery during a rush. She confirmed that they participated in other surgeries using same monitor. However, when such an incident occurs Biomedic are called to check the machine and in any event the doctors found nothing wrong and continued using the same monitor because the machine and the monitor were confirmed to be ok and she was comfortable with the same.

418. In answer to Mr Githaiga’s questions, DW6 stated that she retired from Nairobi Hospital and left in 2012 December. According to her, there is an alarm sound and the normal beeping sound and she could can distinguish between the two. A beep is only once while the alarm goes continuously to indicate things are okay. What she mean by alarm is the normal sound. It does not necessarily indicate problem with the patient. Beep is just one sound. According to her, the patients in the subsequent procedures were connected and there were no incident and the sound she described as an alarm also occurred in the said cases.

419. According to her though the machine was checked she was not there when the Biomedics were checking the machines. Though there was a recommendation of a warning she said that that did not influence her statement.

420. Answering the questions put to her by Mr Ogado, DW6 reiterated that her duty was to assist the surgeon and she did that. She also assisted in draping the patient who was partially draped leaving the only area exposing the nose. According to her, the surgeon could only monitor the patient through the monitor and not physically. It is called blind operation meaning you cannot see open wound and since there is no bleeding, you cannot see the colour of blood same for the monitor. They only noted the condition when they undraped the patient.

421. According to her, after undraping she was told to stay aside as the 2nd defendant was assisting the 1st defendant to check where problem was. Someone was called from Biomedics by the person running the shift and not her though she was within the operation room. She was however not there when the machines were checked. She confirmed that if there is a problem there is usually a funny noise and the monitor blinks but she did not hear that noise on that day but only remember one beep though she could not tell what it was.

422. Re-examined by Miss Aluvale,learned counsel for the 3rd defendant, the witness stated that the drapes were removed after the procedure was over and that at the begging of the procedure the alarm was on and the anaesthetist controls the procedure. She however did not know if she controls the monitor after the procedure commences though she can decide whether to put it off, low or loud.

DW7’s evidence

423. DW7, Rosemary Binya Kaviti,was also employed by the 3rd Defendant and joined the Hospital in February, 1985 as a trainee. She was however a registered nurse having qualified in 1989.

424. According to her statement, in 11th February, 2005 she was in charge of the Day Surgery Unit (DSU) when the 1st plaintiff wen in. When they could not find Dr Moniz whose name appeared on the theatre list, she called him and he said that he was held up. She then called the 2nd defendant who told her to call the 1st defendant since it is the surgeon who gives the name of the replacement anaesthetist if necessary. She could not however remember if it was Dr Moniz or the 2nd plaintiff who suggested the 1st defendant. According to her the 1st defendant took about 15 minutes to arrive at the theatre and she walked with the patient into the DSU, settled him on the couch 9operating table) with the 1st defendant who administered the general anaesthetic through the cannula. DW7 then put the ECG dots on the patient whose observations were normal. According to DW7, she was in and out of the theatre as the process took place as she was the circulating nurse. She was however present when Sister Kibuchi removed the drapes and she noticed that the lips were blue. Though she checked the pulse through his wrist, she did not feel it. Accordingly, the ICU team was summoned by pressing the emergency bell outside the theatre and she participated in the resuscitation which took about 30 minutes after which the patient was taken to the ICU.

425. According to DW7, she participated in other operations both before the 1st plaintiff’s and after on the same day in the same theatre using the same machine all of which went on without incident.

426. In her oral evidence, DW7 stated that she

427. Cross-examined by Ms Nungo, DW7 testified that her qualifications entails everything they do in operation noon, scrubbing, assisting the surgeon, circulating, recovering the patient, running a shift. Though they monitor how the machine is working but not the details. According to her she participated in putting ECG Dots on the patient which is a gel that they stick on the patient’s chest.

428. In her evidence ECG monitors the heart rate and is connected to cardiac monitor though she could not remember exactly who fixed it as she just assisted. She however confirmed that Mr. Mueke was present as the technician. When the patient is being anaesthetised the circulating Nurse must be present and she could have assisted the 1st defendant and the technician. She confirmed that they bill the patient for ECG Dots though in this case she was not aware that they were not charged/billed. In her evidence, depending on what is happening may be the technician has gone to get drug the ECG can be due by anybody unless some activity has interrupted. To her there were many things happening at that time which she could recall. According to her, it is the circulating nurse who is involved at the beginning but as the procedure goes on it is the anaesthetist who does the observation. She stated that she was in and out twice.

429. According to DW7, she noticed the patient’s lips were blue and could not feel his pulse. There was also light noise – like a ticking noise but not very loud. This is not the same noise at the beginning. When hooked the machine makes noise if the readings are not correct. However when normal the heartbeat noise comes from the machine. When normal there is high pitched sound but when abnormal there is an alarm and red light. According to her, it was not normal for patient’s lips to be blue and when the lining is blue there ought to be an alarm but she did not hear any. She was in and out and just rushed in at that time. However, the reading showed something was wrong and normally it would alarm everybody.

430. DW7 confirmed that the machine was set aside and checked by Biomedic Engineer whose name she could not remember his name. According to her evidence they did not continue with operation till the machine was checked and it is the surgeon who decides whether or not to proceed with operation. She however confirmed that they were running behind schedule. According to her, she gave option of not going on with the case because Dr Moniz was not present. However, the absence of Dr Moniz did not contribute to the rush but they were behind schedule. She however stated that despite giving the options to the 2nd defendant, when a patient is on the table they do not jump the procedure and the rush does not affect the procedure. In her evidence she did not hear alarm as she was circulating.

431. Cross-examined by Mr Githaiga, DW7 stated that the machine was checked when she came back after 30 – 50 minutes and it was the sister in charge who called the Biomedic and when she came back she was there with Biomedic checking the machine.

432. In answer to Mr Ogado’s questions, DW7 stated that the 2nd defendant was present all the time she was in theatre and she could not remember whether she required anything else during the process.

433. Re-examined by Miss Aluvale, DW7 testified that ECG are normally put on the patient and a patient cannot normally be induced before the ECG dots are mounted. She confirmed that they were mounted. According to her if there had been problem with the machine it would have been set aside and not used thereafter. However, there were no problem thereafter while checking the machine and they referred patients to other theatre and there was no incident in these.

DW8’s evidence

434. DW8, Norah Onyango,was the Director, Nursing Services of the 3rd defendant. Based on the documents availed to her, she testified that the 1st and 2nd defendants acted in their private capacities as consultants and the hospital had no control over them and their decisions in any way. According to her, the two had admitting rights at the Hospital which had detailed process by which doctors seeking admitting rights are considered. She then proceeded to set out the said procedure.

435. It was therefore her position that the allegation that the hospital retains and holds out incompetent professionals and non-professionals was inaccurate. Normally, she stated it is the patients who identify the surgeons who pick the anaesthetists to work with while the hospital provides the facilities and support staff. To her there was no contractual obligation between the plaintiffs and the hospital; relating to the 1st plaintiff’s treatment. It was her case that the 1st plaintiff was managed by the 1st and 2nd defendants and not the hospital hence the hospital was not a party to their decisions. While aware that the 1st plaintiff was not properly attended to, she it was her case that the hospital offered proper and adequate facilities and service and qualified nursing staff. Accordingly, neither the hospital nor its staff was negligent and/or incompetent at any time. In the ICU other than the ICU doctors the 1st plaintiff was under care of consultants engaged by the 1st plaintiff’s family. Since the responsibility of inserting a catheter is the physician’s DW8 stated that it is the responsibility of the nurses to carry out the doctor’s instructions.

436. According to her the hospital’s policy is that patients are expected to pay any outstanding bills and at the time of his discharge, the 1st plaintiff’s bill was Kshs 1,056,490. 26 which amount the hospital was lawfully entitled to and which amount the 2nd plaintiff admitted and undertook to settle. It was her case that after the SAEC deliberated on the issue it was found that the equipment were in working condition and were subsequently used on other patients after the 1st plaintiff’s incident.

437. In her oral evidence she reiterated the foregoing.

438. In cross-examination by Ms Nungo, she stated that she was standing in for Dr Mailu in this case. She conceded that the Hospital admitted the 1st Plaintiff for the procedure. She could not however tell whether the plaintiff was billed as she had never seen such a document. She however admitted that they bill patients for the service given by the Doctors and the Hospital.

439. According to her the Rosemary Kaviti, Kibuchi and Mr. Mueke were part of the team and after the incident the patient was taken to ICU. She disclosed that Dr Thanga was the ICU Resident Doctor at that time and she was medical office working in the Hospital but also had licence. She was aware that Dr Thanga was involved in reversing the patient. According to her, it is the physician who puts the catheter in and it is the nurse who empties the urine bag and records the amount of urine. They also make observations whether clear, concentrated or cloudy. They should alert the physician who can also see the bag. She was however unaware if the 1st plaintiff suffered as a result of not noticing this. She confirmed there was a bill for Ksh.1,056,490. 26 and that the 2nd plaintiff admitted the debt and undertook to pay. She also confirmed that the Hospital demanded payment of the Bill though she was not aware of the circumstances for the demand for payment. Similarly she was unaware of the circumstances under which the debt acknowledgement was signed. She confirmed that the SAEC recommended the issue of the Bills be considered with compassion. The witness stated that she was had not come across any report in respect of the machines and was not aware if the area was cordoned off. Similarly, she had no information on the memory of the machine.

440. In answer to Mr Githaiga, DW8 stated that the policy of the Hospital after an incident is to check the equipment and if okay continue using it. She however did not know exactly what the Biomedics do save that they have a standard way of checking though she did not know for how long. She agreed the services would have been helpful and that it was reasonable to isolate he machine and obtain the recordings but she was not sure if these were done. She however insisted that the machine was up to date though she was not sure that it was assessed. She could not tell whether the particular machine had printouts and whether the same were requested for and provided. However, the records would be helpful in showing whether the machines were working. According to her the machine is checked by Biomedic, the technician and the doctors before it is connected to the patient and the Technician and Biomedic are employees of the Hospital.

441. In answer to Mr Inamdar’s questions, DW8 stated that though the committee recommended that there was a need to check the printout, she was not aware of any printout from the machine. She confirmed that Mr Mailu said there were indications of memory but was not aware of retrieval of the memory.

442. Re-examined by Miss Aluvale, DW8 stated that she was not involved in servicing the machine or in keeping records for this particular case. If the machine was found not to be working it would not be used on a patient. From the records she was aware it was used before and after the incident with no problem.

Plaintiffs’ Submissions

443. At the close of the case the parties filed their respective submissions which their respective counsel highlighted.

444. According to the Plaintiffs, on 8th February 2005 while playing basketball at [particulars withheld]School in Nairobi, the 1st Plaintiff sustained a nasal fracture. Following his nasal fracture, the 2nd Plaintiff contacted the 2nd Defendant, an ENT Surgeon, to reduce the nasal fracture. The 2nd Defendant accordingly scheduled the 1st Plaintiff for a minor surgery on 11th February 2005 at 10am at the 3rd Defendant’s Day Surgery Unit (DSU). The 2nd Defendant would be the surgeon and one Dr Gerald Moniz was scheduled to be the anaesthetist. On 11th February 2005, the 2nd Plaintiff took the 1st Plaintiff to the 3rd Defendant’s facility as scheduled. They arrived at 9. 10am with the 1st Plaintiff dressed in school uniform as the plan was to have the 1st Plaintiff report to school after the procedure. Upon arrival at the 3rd Defendant’s DSU, the 2nd Plaintiff completed all formalities attendant to the surgery and the 1st Plaintiff was admitted. By 10am, the 2nd Defendant had not arrived and the 1st and 2nd Plaintiffs waited until 10. 30am when the 2nd Defendant arrived in a hurry and informed the 2nd Plaintiff that Dr Moniz who was scheduled to be the anaesthetist was not available. It is at that point that the 2nd Defendant proposed to use the 1st Defendant in place of Dr Moniz. The 2nd Plaintiff informed the 2nd Defendant that he had no objection to the proposal provided that the 2nd Defendant was comfortable working with the 1st Defendant. The 1st and 2nd Defendants were to be assisted by David Mueke (DW5), a theatre technician and Catherine Kibuchi (DW6), a scrub nurse and Rosemary Kaviti (DW7), a circulating nurse, all of whom were employees of the 3rd Defendant. After confirming that everything was in order, the 2nd Plaintiff went back to his clinic where he practices radiology. The 2nd Plaintiff’s plan was to pick the 1st Plaintiff later after the surgery and drop him to school.

445. At around 12. 30pm, the 2nd Plaintiff received an urgent telephone call from the 3rd Defendant to report to the DSU. Upon arrival at DSU, the 2nd Defendant informed the 2nd Plaintiff that the 1st Plaintiff had been admitted at the 3rd Defendant’s Intensive Care Unit (ICU) when they noticed after the operation that he had turned “blue” and suffered hypoxic brain damage. The 2nd Plaintiff proceeded to the ICU and found the 1st Plaintiff on a respirator and unconscious. He telephoned the 3rd Plaintiff to inform her about the developments and the 3rd Plaintiff immediately came to the hospital. No clear explanation was given to the 2nd and 3rd Plaintiffs as to what exactly had happened to the 1st Plaintiff. The 2nd Plaintiff was however informed that the 1st Plaintiff had been put under heavy sedation and that he would remain in that state until Sunday 13th February 2005 at 5pm when the paralysis and sedation would be reversed to make him wake up.

446. On 13th February 2005 at 5pm, the 2nd and 3rd Plaintiffs attended the ICU in the company of PW7 and one Dr (Mrs.) Thagana both of whom had come to visit the 1st Plaintiff and witness the reversal. At the material time, neither the 1st nor the 2nd Defendant was present. When the 2nd Plaintiff inquired about their whereabouts, the 2nd Plaintiff was informed that the 1st Defendant had passed through the ICU earlier at 3pm and left instructions to the ICU Doctor one Dr Thanga (an employee of the 3rd Defendant) to do the reversal. The 2nd Plaintiff was informed that the said Dr Thanga had started the reversal but was not successful as the 1st Plaintiff could not breathe as expected. Dr Thanga shared her concerns on the dose of sedation which was at 3milligrams per hour and the need to reduce it but needed to be advised by an anaesthetist/neurologist on how to reduce the same and by how much. An attempt was made to reach the 1st Defendant via both the hospital operator and her mobile phone in vain. After consultations, one Dr Kwasa, a neurologist was reached and he advised that the sedation be reduced. This was done and the 1st Plaintiff responded positively by moving his limbs and having spontaneous breathing.

447. Following the occurrence of the incident and the failed attempts by the 2nd and 3rd Plaintiff’s to get an explanation as to what exactly happened to the 1st Plaintiff, the 3rd Defendant’s Medical Advisory Committee (MAC) convened a meeting at the 3rd Defendant’s hospital on 16th February 2005 so that the 2nd and 3rd Plaintiffs could be explained for what happened to the 1st Plaintiff. The meeting comprised of Dr M. Joshi, Dr R. Baraza, Dr N. Nganga, Dr C. Chunge (PW7), Dr P. Okutoi (the 1st Defendant/DW1), Dr C. Olende (the 2nd Defendant/DW3), Dr Singale, Dr Gerald Moniz (PW4) and the 2nd and 3rd Plaintiffs but no clear explanation was availed during the meeting.

448. That on 8th March 2005 the 2nd Plaintiff had gone to see the 1st Plaintiff in the ward and Dr Charles Nakhungu Chunge (PW7) who happened to be doing a ward round in the 3rd Defendant’s facility, saw the 2nd Plaintiff and joined him to see how the 1st Plaintiff was doing. The 2nd Plaintiff told PW7 that the 1st Plaintiff had a lot of lower abdominal pain and on palpating the lower abdomen over the urinary bladder area, marked tenderness was elicited. Prof. Erastus Amayo (PW5) who was in charge of the 1st Plaintiff was consulted and a decision was made to remove the catheter. Upon the removal of the catheter, urine with pus was retrieved some of which was taken to the laboratory for analysis, and infection was proved.

449. The 1st Plaintiff remained in the ICU from 11th February 2005 to 14th February 2005 and was then transferred to the High Dependency Unit (HDU) and subsequently to the General Ward and was discharged on 1st April 2005.

450. At the time of the 1st Plaintiff’s discharge, the 3rd Defendant made a demand for payment of a bill of Kshs. 1,056,490. 26 as a condition for discharge and the 2nd Plaintiff was coerced into signing an Acknowledgement of Debt for the subject amount.

451. Following the incident, the 2nd Plaintiff registered a complaint with the 3rd Defendant. The 2nd Plaintiff wrote complaint letters dated 17th February 2005 and 22nd February 2005 to the 3rd Defendant’s CEO highlighting his grave concerns over the 1st Plaintiff’s treatment at the 3rd Defendant’s hospital. The 3rd Defendant’s Standards Audit and Ethics Committee (SAEC) met on diverse dates being 1st April 2005, 6th May 2005, 10th June 2005, 17th June 2005, 23rd June 2005, 22nd July 2005, 5th August 2005, 26th August 2005 and 21st September 2005 and deliberated on the case and even interviewed concerned parties.

452. On 24th August 2005, the 2nd Plaintiff wrote a letter of complaint concerning the delay by SAEC in sharing their report and findings but it is not until the 21st September 2005 when the 2nd and 3rd Plaintiffs attended SAEC meeting following an invitation letter dated 9th September 2005 that was sent to them. During the meeting, the 2nd and 3rd Plaintiffs were informed that the purpose of the meeting was to communicate and discuss SAEC’s findings with the family before writing a letter. SAEC highlighted, inter alia, the following as its concerns: -

i. There were discrepancies in alarm saturation at 90%, the actions taken and the fact that only 1 person heard the alarm.

ii. Stringent action had been taken especially on the 1st Defendant who had already served a suspension of 6 months and it was recommended she serves a further 6 months. She was also to attend all divisional monthly meetings and the regular Tuesday CMEs. After serving suspension, she would re-apply for admitting rights and if granted, be assigned a mentor to supervise and counsel her and a report be made to SAEC

iii. SAEC concerned about the 1st Defendant’s attitude and relation with family members. SAEC Chairman explained monitoring was ineffective and inadequate, noting that an alarm is one thing that cannot be ignored.

iv. Whole team was responsible especially the team leader

v. Matter forwarded to the Medical Practitioners and Dentists Board

vi. It was agreed that the 3rd Defendant hospital’s Chief Executive Officer writes a letter to the family on issues discussed by 27th September 2005

453. In addition to SAEC, the 2nd Plaintiff also filed a complaint with the Medical Practitioners and Dentists Board vide his letter dated 18th March 2005 following which the following ensued: -

i. The Medical Practitioners and Dentists Board wrote to the 3rd Defendant a letter dated 30th March 2005 calling for a report on the case to enable the Preliminary Inquiry Committee (PIC) of the Board carry out investigations.

ii. On 4th April 2005, the 3rd Defendant responded to the Medical Board indicating that the matter was under investigation by SAEC and that a full report would be availed after conclusion of SAEC investigations.

iii. The 3rd Defendant took long to avail a report to the Board and on 4th August 2005, the Board wrote to the 3rd Defendant giving the 3rd Defendant ultimatum to submit a report by 12th August 2005 whether or not SAEC would have concluded its investigations.

iv. On 30th August 2005, the 3rd Defendant wrote to the Medical Board informing them that SAEC had concluded that the incident/events that led to the 1st Plaintiff suffering anoxic ischaemic encephalopathy was an Anaesthetic accident resulting from inadequacy of intra operative physiological monitoring on the part of the practitioners concerned, etc. The 2nd Plaintiff testified that this letter did not comprehensively capture the summary of SAEC’s findings and conclusions as was shared with them in the meeting of 21st September 2005 already detailed above.

v. The Medical Board’s PIC wrote to the 1st and 2nd Defendants letters dated 18th July 2005 and 30th March 2005 respectively calling on them to give a report on the case to enable PIC carry out investigations and the said Defendants complied.

vi. The PIC relied on the reports furnished by all the Defendants as pointed out above, the clinical notes, correspondences and Prof. Ngumi’s report and came up with the PIC Report on its findings, recommendations and observations.

454. In furtherance of the recommendations by PIC, the Medical Board commenced an inquiry and proceeded and heard the case and after listening to evidence and considering submissions by parties, the Board delivered its ruling in which it made its findings against the Defendants as follows: -

i. That the 1st Defendant failed to observe reasonable intraoperative care of the 1st Plaintiff including observance of the equipment thereby endangering the life of the 1st Plaintiff, and further that the 1st Defendant failed to observe reasonable care and skill.

ii. The Board considered the case as against the 2nd Defendant and concluded that the facts proved were insufficient to support a finding of infamous or disgraceful conduct/or that the 2nd Defendant as a team leader failed to ensure that the surgical operation was carried out in accordance with the known standards.

iii. The Board considered the case as against the 3rd Defendant and found that whereas the facts were insufficient to prove the charge as against the 3rd Defendant, the Board found that the 3rd Respondent had responsibility under Rule 12(2) of the 2000 Institution Rules which states that the owner and managing body of a private institution as well as the medical practitioner or dentist concerned shall be responsible for any instance of professional misconduct occurring within the premises about which they know or ought to reasonably have known.

455. The 1st Plaintiff was examined by many doctors after the injury he sustained. The 2nd Plaintiff highlighted the following examinations: -

i. Examination by Prof. Erastus Amayo (PW5), a consultant neurophysician, who attended to the 1st Plaintiff while in the 3rd Defendant’s Nairobi Hospital. He prepared a Report dated 27th February 2005 to the 3rd Defendant’s SAEC and concluded in his report that the 1st Plaintiff had,

“… a significant ischaemic anoxic cerebral injury. He has shown some improvement neurological but remains poor. The outcome is difficult to predict now but we anticipate significant neurological deficit. He is young and the plasticity of the brain is likely to affect the outcome positively.”

ii. PW5 did a follow up examination of the 1st Plaintiff about a year after the incident and prepared a Report dated 23rd May 2006 in which he stated inter alia that;

“… Memory - His past memory was reasonable but with a lot of gaps, short term memory was moderately impaired. Immediate recall was poor. Intelligence - He was not quite familiar with the current events going on in the country. His abstract thinking was impaired, could not complete simple proverbs…Writing was initially good but he would tire essentially and the hand writing would become very poor…Speech – Generally timid has a lot of hesitancy and has to be assisted by the father. Talks more in monosyllables…” He concluded that whereas the 1st Plaintiff had made reasonable improvement, he still has major cognitive emotional and psychological deficits.

iii. PW5 did a further follow up examination of the 1st Plaintiff about three years after the incident and prepared a Report dated 7th February 2008 in which he stated inter alia that;

“…Orientation - He has made marked improvement since the last review. He was oriented in space but could not quite remember what day it was but got appropriate answer to the time. He could not recall having seen me before although I happen to be one of his doctors… Memory- His immediate recall for recent events was reasonable he could remember what he ate for lunch and supper. He had poor immediate recall (he was given a name and telephone number which he was not able to recall after five minutes. His long-term memory was poor. His abstract thinking…was markedly impaired…. Intelligence - This was assessed as below the expected for his age and previous educational background…” He concluded that the 1st Plaintiff had made much improvement but remains with major neurological and neuropsychiatry defects.

iv. PW5 testified that he last examined the 1st Plaintiff on 7th March 2015 (a day before he gave his testimony in Court) and stated that despite improvement, the 1st Plaintiff still had a problem with the memory and his intellect remained poor and that when subjected to intellectual challenge he will not be able to perform. He stated that the chances of him becoming a doctor are very remote and he can definitely not be a pilot.

v. Examination by Dr A. N. Nguithi(PW2), a consultant psychiatrist, who attended to the 1st Plaintiff slightly over one year after the incident concluded in her report thus;

“… This is a 17-year-old who was reportedly in perfect physical and mental health prior to the anaesthetic accident. Since then, he has suffered: -

1)Severe cognitive deficits and has to re-learn basic skills such as reading, writing and arithmetic

2)He has suffered psychiatric complications in the form of depression, mania, paranoia and recently severe obsessional symptoms

3)Drastic change in personality

He has been improving over time but only time will tell how much of his pre- morbid skills and personality can recover…”

vi. PW2 did a further follow up examination of the 1st Plaintiff about three years after the incident and prepared a Report dated 5th February 2008 in which she concluded, inter alia, that the 1st Plaintiff still had difficulties in short and long-term memory. PW2 stated to Court that as at the last time she saw the 1st Plaintiff, he could not be a doctor or a lawyer. At that time, she could not place any career on him and she stated that he may always need to be looked after and may not be independent, he would not attain full cognitive potential and it may precipitate dementia.

vii. The 1st Plaintiff was also examined by neuropsychological expert one Dr Daksha Hirani who prepared a Neuropsychological Reassessment Report dated 10th August 2009.

456. It was submitted on behalf of the plaintiff that taking into consideration all the examinations referred to above, the damage/injury suffered by the 1st Plaintiff was hypoxic brain damage which led to the following: -

i. Lack of short term memory (The 1st Plaintiff cannot learn and retain information)

ii. Disorientation (The 1st Plaintiff cannot remember time, date and place)

iii. Loss of cognitive abilities (The 1st Plaintiff cannot distinguish society right or wrong)

iv. Psychiatric disorders (The 1st Plaintiff suffers depression, loss of concentration and occasional violent disposition)

v. Compulsive Obsessive Disorder (The 1st Plaintiff does the same things repeatedly)

vi. Poor coordination of movements (The 1st Plaintiff cannot write, play basketball, swim or sing)

vii. Loss of biological clock rhythm (The 1st Plaintiff has no sense of when night ends and day starts-i.e. waking up at 3:00a.m and dress for the day and being unable to go back to sleep)

457. The 2nd Plaintiff (PW1) and the 3rd Plaintiff (PW6) testified that 1st Plaintiff’s health had deteriorated and his high and bright prospect in academic work, sports and arts have been extinguished and all his expectations for leading a normal and independent life where he can be able to fend for himself have been extinguished. That as at 8th February 2005, the 1st Plaintiff was a Form 4 student at [particulars withheld]School in Nairobi. He had previously been a student at NPC Academy. He was a bubbly boy with good academic track record and active in various sports where he won prizes at competitions including swimming, basketball and music. PW3 who was once his schoolmate and close friend gave an account of the 1st Plaintiff’s academic and co-curriculum prowess that made the 1st Plaintiff very popular in school. PW3 stated the 1st Plaintiff was heavily influenced by his parents and he had desired to pursue the path of medicine and the 1st Plaintiff’s Reports/Certificates of Excellence were highlighted.

458. With respect to the issue of the 1st Plaintiff’s hospital bill, it was submitted:

i. That the 3rd Defendant started following up on the same by sending to the 2nd Plaintiff the first demand letter dated 7th March 2005 when the matter was still under investigations by the 3rd Defendant and despite the 3rd Defendant’s then Chief Executive Officer (CEO) giving the 2nd Plaintiff an assurance that they would first wait for the findings by SAEC.

ii. As at the time of the 1st Plaintiff’s discharge on 4th April 2005, the 3rd Defendant’s then CEO reneged on his earlier assurances and insisted that the 1st Plaintiff would be detained if the bill was not paid. The 2nd Plaintiff was accordingly coerced into executing the Acknowledgement of Debt already referred to above.

iii. The Plaintiffs’ lawyers sent a letter dated 30th June 2005 protesting against the Acknowledgement of Debt.

iv. SAEC recommended the 3rd Defendant to consider the issue of the hospital bill with compassion and that the matter be addressed administratively.

v. The Medical Board’s PIC raised the issue of the bill as an issue for determination by the Board, that is, whether the 3rd Defendant’s mode of handling patients after a serious incident as this one was correct and in keeping with the rules and/or ethics of the medical profession.

vi. The Medical Board in its ruling took issue with the way the 3rd Defendant handled the 2nd Plaintiff stating that the demand for payment of huge bills in the manner done was most unprofessional.

459. In addition to General Damages to the Plaintiffs as detailed in the Plaint, the Plaintiffs claim Special Damages comprising of;

i. Deposit Payment to the 3rd Defendant of Kshs. 100,000/-.

ii. Medical Expenses of Kshs. 181,580/- to Medicine, Consultancies, Physiotherapy, laboratories, etc .

iii. Purchase of Pulse Oximeter Kshs. 92,000/- and Oxygen Concentrator Kshs. 140,000/-.

iv. Legal Costs of Board Proceedings.

v. Employment of fulltime helper at Kshs. 10,000/- per month which cost was Kshs. 350,000/- as at 31st January 2008 and accrues to date.

460. According to the plaintiffs upon analyzing the evidence and the law, the following main issues fall for determination: -

i. Were the 1st, 2nd and 3rd Defendants careless, negligent and/or reckless as per the particulars pleaded in the execution of the medical care of the 1st Plaintiff?

ii. Did the 1st Plaintiff by reason of the negligence and/or carelessness in his treatment management and care by the Defendants suffer the injuries, loss and damage pleaded in the Plaint?

iii. Are the Plaintiffs entitled to damages, and if so, what is the quantum?

The first issue: Were the 1st, 2nd and 3rd Defendants careless, negligent and/or reckless as per the particulars pleaded in the execution of the medical care of the 1st Plaintiff?

461. As regards the first issue the plaintiffs relied on the Medical Journal as cited in the case of P B S vs. Archdiocese of Nairobi Kenya Registered Trustees & 2 Others (2016) eKLR and Dr Laxman Balkrishna Joshi vs. Trimbark Babu God Bole and Another; AIR 1969 SC 128 and A.S Mittal vs. State of U.P; AIR 1989 SC 1570as cited in the case of Hellen Kiramana vs. PCEA Kikuyu Hospital (2016) eKLR.

462. It was submitted that the test of judging the standard of care was set out in the case of Bolam vs. Freirn Hospital Management Committee (1957) WLR 582 as cited in the case of Ricarda Njoki Wahome (suing as an Administrator of the estate of the Late Wahome Mutahi (Deceased) vs. Attorney General & 2 Others (2015) eKLR.

463. It was submitted on behalf of the plaintiffs that based on the foregoing cases there are established standards and practices that have been set by the medical profession, which any reasonable medical practitioner or medical institution is expected to follow. The defendants in these proceedings, as adduced by the oral and documentary evidence before Court, have indeed by their commissions and omissions failed to adhere to some of these practices. It is therefore contended that the defendants are 100% liable as they did not adhere to the basic requirements set out and the following are inferences made of some of the fundamental standards the defendants failed to take into account.

The Case against the 1st Defendant

464. As against the 1st defendant, she took up a rushed case and did not adequately prepare for the same, failing to carry out the complete history and physical examination of the 1st Plaintiff and/or failing to make appropriate pre-operative evaluation of the 1st Plaintiff before administering anesthesia. According to the plaintiffs:

i. It is not disputed that the choice of anaesthetist was made on 8th February 2005 and this was to be Dr Gerald Moniz and not the 1st Defendant. As was stated on oath by PW1 (the 2nd Plaintiff), DW1 (the 1st Defendant) and DW3 (the 2nd Defendant), the 1st Defendant was recommended by the 2nd Defendant on 11th February 2005 way after the scheduled operation time when the 2nd Defendant learnt that Dr Moniz was not available.

ii. During cross examination of DW1 on the subject of Consent by the Plaintiff’s lawyer, it was shown that she did not get consent from the 2nd Plaintiff. She stated that she signed the consent form on 11th February 2005 (See from Page 79 of Defendant’s Bundle 1) at the day surgery theatre in the absence of the 2nd Plaintiff, the guardian of the 1st Plaintiff then a minor. The 1st Defendant did not obtain relevant pre-Anaesthetic assessment information on past history, present condition, regular medication, etc. from the 2nd Plaintiff. Neither did the 1st Defendant explain the Anaesthetic procedure/treatment to the 2nd Plaintiff. It is clear that the 1st Defendant lied when she signed the Consent Form stating that she did all these. It is on record that the 1st Defendant neither met nor talked to the 2nd Plaintiff and 3rd Plaintiff until after the unfortunate incident. The pre-operative evaluation prior to administering anesthesia was accordingly done casually and rushed.

iii. The 1st Defendant’s own expert witness DW2 at paragraph 4(ii) of his witness statement concluded that there may have been lack of comprehensive pre-operative evaluation due to the last-minute change in the anaesthetist doing the case

iv. DW1 was referred to and confirmed her statements during SAEC proceedings where she had stated inter alia the following: -

At Page 130 of Plaintiff’s Bundle A “…Dr Okutoyi has reviewed her techniques and she admits she made mistakes in taking up a rushed case because she should have gone deeper into the boy’s history. She should have taken more time to complete the Anaesthetic chart to show the correct results…”

v. DW1 was referred to the proceedings and her evidence before the Medical Practitioners and Dentists Board and at Page 265 Plaintiff’s Bundle A where it was stated thus,

“…The second respondent has indicated that in hindsight she should have taken a more detailed history from the parents of the patient…”

She confirmed the above record as correct during her cross examination and stated that she should have taken more detailed history of the patient.

465. It was submitted that the 1st Defendant administered the appropriate and Anaesthetic drugs known to be dangerous to the myocardium but the dosages were in excess and failed to take due care to protect the 1st plaintiff's heart. In this respect, the plaintiffs relied on the following evidence:

i. The 1st Defendant in her witness statement at paragraph 6 stated that she induced anesthesia with 100 micrograms of fentanyl, 180mg of Propofol, 100mg of scoline and that all were given intravenously. The Anaesthetic chart record indicates induction drugs as propofol, suxamethanoium, fentanyl and zofran. In addition, the volatile agent used is indicated as 3% halothane. The Plaintiffs’ expert witness PW4 has made clear comments on these drugs at paragraph 4 of his witness statement. Important to note is the comment that 3% halothane dosage was high and further that atropine should have been used to counteract the vagolytic effects of suxamethanoium, fentanyl and halothane, yet the 1st Defendant did not give atropine.

ii. During cross examination by the Plaintiffs’ lawyer, the 1st Defendant was referred to literature on these drugs at Pages 251 to 254 of Plaintiff’s Bundle A which support the statements of PW4. On halothane, page 251 reads thus,

“…Maintenance 0. 5-2%...Anaesthesia with halothane may be associated with bradycardia, which may augment its hypotensive effect. The intravenous administration of an anticholigernistic agent before induction or during maintenance of anaesthesia should be considered, especially in situations where vagal tone is likely to be predominant or when halothane is used in conjunction with other agents likely to cause bradycardia…”

On Suxomethonium, page 252 of the literature reads thus,

“…Atropine should be given before administration of suxomethonium chloride to prevent excessive bradycardia…”

It was therefore contended that a high dosage of halothane was administered together with suxomethonium and yet atropine was not given.

iii. The 1st Defendant’s expert witness DW2 stated that if the patient was ventilated throughout and did not have blood pressure, 3% halothane would be high. The chart at page 82 of Defendant’s Bundle 1 is very clear that the 1st Plaintiff was on IPPV, that is, Intermittent Positive Pressure Ventilation. IPPV means that the patient was ventilated. The chart is further clear that 3% halothane was used and DW2 confirmed that in the absence of any other percentage recording, it would be possible that 3% halothane was used throughout without being reduced. The argument that was advanced by the 1st Defendant that the calibration cylinder for halothane goes up to 5% and hence giving 3% is normal is not correct. If halothane is used to induce anaesthesia by an ambubag via the nostrils, higher concentrations are used but then immediately reduced after achieving the desired effect. It was submitted that if IPPV is used, 3% is an overdose as already stated by DW2 and can harm the patient as is the case in our hands. The manufacturers of halothane have shown the normal range to be used for maintenance as 0. 5% to 2%. Administering 3% halothane via IPPV for maintenance is definitely above the normal allowed limit.

iv. The Plaintiff’s expert witness PW4 also stated in his evidence in chief that halothane depresses the heart and cardiovascular system by lowering the pulse rate to below 60 and also reduces the blood pressure. During his evidence in chief and cross examination by the 1st Defendant’s lawyer, he stated that the chart showed that the 1st Plaintiff was on ventilation and 3% halothane was high for a patient that is under controlled ventilation. Further, he stated that he noted that the 1st Plaintiff’s pulse rate was also lower than normal being athletic and, in the circumstances, he would be very careful in administering halothane to such a patient as the combined effect of the three drugs would lower the pulse rate further.

v. The 1st Defendant (DW1) confirmed that Suxomethonium can cause bradycardia which reduces heart rate and this effect is enhanced by halothane. She admitted in cross examination that she did not use atropine on the 1st Plaintiff and indeed, her Anaesthetic record does not mention atropine. When shown the literature about use of an anticholinergic, DW1 confirmed that atropine is an anticholinergic and she agreed with the statement on use of atropine. She further confirmed that she agreed with Dr Kabetu that high percentage of halothane may lower blood pressure and cause cardiac arrest which the 1st Plaintiff had in theatre.

vi. PW4 also stated in his evidence in chief and on cross examination by the 1st Defendant’s lawyer that the use of atropine was highly recommended, and that atropine can be used if problems develop during the procedure if monitoring is fully reliable. He further observed that the 1st Plaintiff’s heart rate was taken by nurses pre-operatively as 58b/minand the 1st Defendant’s record of pulse heart rate on the other hand was 108b/min. This is notwithstanding the 1st Defendant’s indication of a reading of pulse rate at 58 at paragraph 6 of her witness statement. PW4 found the 1st Defendant’s chart recording of pulse rate of 108 unusual and stated that if indeed the 1st Plaintiff was a very fit patient as indicated in the Anaesthetic chart he should not have been unduly affected. In other words, the readings of 58 also alluded to by the 1st Defendant herself at paragraph 6 of her statement made more sense and considering that the induction and maintenance drugs used were muscle relaxants it would have been highly recommended to use atropine so that the low heart rate of 58 is not reduced further as Atropine protects the heart.

vii. Of significance is that the 1st Defendant (DW1) confirmed on cross examination by the Plaintiff’s lawyer that the blood pressure of the 1st Plaintiff was crushed by the drugs she used.

viii. DW1 was referred to and confirmed/admitted her statements during SAEC proceedings where she had stated inter alia the following: -

a) At Page 126 Plaintiff’s Bundle A “…Dr P. Okutoyi’s reflection of what might have happened is that the patient went into severe hypotension as a result of the drugs used crushing his BP…”

b) At Page 130 Plaintiff’s Bundle A, the 1st Defendant stated thus “…The cardiac arrest may have been as a result of drugs used or an underlying problem which was not detected during the time the preoperative history was being taken…”

c) At Page 132 SAEC members comment thus “… Choice of drugs was correct but there is a possibility that drugs/dosages were in excess. Giving these drugs together may cause terrible side effects e.g. hypoxia. All drugs used are known to have a cardiotoxic effect…”

ix. DW1 was referred to the proceedings and her evidence before the Medical Practitioners and Dentists Board and she stated, inter alia, the following: -

She agreed with her statement where she had stated in the middle of Page 239 thus, "Each one of the drugs has some kind of reaction. I have said Propofol may cause myocardial depression it may also cause lowering of blood pressure, Halothane may also do that, but it is not absolute…". She confirmed that the drugs she used can cause myocardial depression and severe hypotension.

She confirmed the Board ruling at where the Board relied on the evidence of Dr Kabetu and PW4 to the effect that the drugs used by the 1st Defendant could have led to cardiac arrest and further that halothane levels were on the higher side of normal.

466. It was submitted that the 1st Defendant’s Anaesthetic Chart was poorly recorded and thus not an accurate reflection on the management and monitoring of the 1st Plaintiff the following instances were pointed out:

i. The Anaesthetic chart indicate it was completed at 7am on 11th February 2005 long before the 1st Plaintiff and even herself had arrived at the 3rd Defendant’s facility. The chart indicates that IPPV method was used. The induction drugs used were propofol 180mg, suxomethoneum 100mg, Fentanyl 100 mic and zofran 4mg. The chart further indicates that 3% halothane was used and there is no record of any dosage reduction during the period of the procedure.

ii. The Anaesthetic chart is defective from the start. DW1 admitted during cross examination that her chart recordings were poor. She stated that she was not happy with her chart because it was not properly filled.

iii. The chart recording shows blood pressure as normal. Her expert witness DW2 stated that he would not expect blood pressure to be normal in a patient with cardiac arrest and deep cyanosis.

iv. The chart recording shows heart rate as normal at 108 yet the nurses recorded 58. The ruling of the board also indicate record of heart rate of 58. The Plaintiff’s expert witness PW4 stated as already alluded to above that a heart rate of 108 as indicated in the chart was unusual and had the patient been very fit as indicated in the chart recordings, the 1st Plaintiff would not have deep cyanosis.

v. Whereas DW1 claims that the procedure lasted for about 10 minutes, the chart indicates otherwise. The intervals on the chart do not tally with the operation time. She claims during cross examination by the 3rd Defendant’s lawyer that she checked the pulse about twice and yet there is no such record on the chart.

vi. DW1 was referred to and confirmed her statements during SAEC proceedings where she had stated, inter alia, the following: -

At Page 130 of Plaintiff’s Bundle A “…She admitted that she is personally not happy with the chart as there are so many inaccuracies…”

vii. DW1 was referred to the proceedings and her evidence before the Medical Practitioners and Dentists Board and at Page 266 Plaintiff’s Bundle A where it was stated thus,

“…Indeed, she admitted that she charted inaccurately and in retrospect. This board in fact found that the chart was fictional in that she had charted commencement at 7am yet she admitted that at the time she must have been on her way to work. The time frame of the operation was not clear from her chart and can be interpreted to have been 20 to 40 minutes, yet she testified that it was 10 minutes…”

She confirmed the above record as correct during her cross examination.

467. It was submitted that the 1st Defendant failed to monitor or observe reasonable intra operative care of the patient including the observance of equipment thus endangering the 1st Plaintiff’s life. In so submitting, the plaintiffs pointed out that:

i. Both PW4 (the Plaintiff’s expert witness on anesthesia) and DW2 (the 1st Defendant’s expert witness on anesthesia) confirmed that an anaesthetist ought to check whether the machines are working before bringing the patient. Prof. Raja also stated at Page 139 of Plaintiff’s Bundle B thus,

“…If you…the patient comes in, the first thing is that before you start giving any drugs to the patient, the patient is hooked to a cuff, a blood pressure cuff, pulse oximeter, ECG electrodes. These three things are the first things which are hooked up and then everybody looks at the monitor. That is the standard thing which everybody who has been in theatre will know that that is a standard thing…”

ii. From the 1st Defendant’s witness statement filed in Court and her evidence in chief, there is nowhere she states that she actually checked whether all the parameters of the Anaesthetic machine were working before commencing the procedure.

iii. In fact, during cross examination, she stated that it is the function of the theatre technician to set, check and switch off the machine. She further stated that she checked that the oxygen was flowing, that the monitor and its accessories were in place and it was her testimony that the machines were working and she heard the normal heart beep sound. According to her, the beep sound was of normal character throughout the procedure and she did not hear any alarm.

iv. DW1 was referred to and confirmed the proceedings and her evidence before the Medical Practitioners and Dentists Board where upon being was asked whether she set the Anaesthetic machine and whether she checked whether they were working, she stated that she did not do so though she claimed they were working and in functional status. She however couldn’t explain why they did not alarm.

v. Had the monitors and their alarm systems been working and had they been checked to confirm that they were in good working order, normally the alarm of the monitor would have sounded if the patient’s oxygen level had dropped to levels below the parameters set by the anaesthetist or the default factory settings of the monitor.

a) It is the evidence of DW5 David Mueke that the 1st Plaintiff was on the oxicarp and the ECG monitor. It is his evidence that the oxicarp sounded an alarm and it was subsequently switched off by the 1st Defendant. It is however strange that the ECG monitor did not alarm yet he says the readings was 35% SPO2 at the time the patient’s lips were noticed to be blue.

b) DW1 acknowledged that the issue of the alarm is central and that if the same sounded and appropriate action was taken thereafter it would have prevented the 1st Plaintiff from suffering hypoxia with brain damage.

c) It is physiologically and practically impossible for a patient who is being monitored via physically feeling the pulse and two independently functioning monitors, to develop cardiac arrest and central cyanosis without prior detection.

d) Contradictory evidence has been adduced with regards to the sounding of the alarm, putting into question who is telling the truth.

468. According to the plaintiffs, a visit was made to the 3rd Defendant’s theatre during which the machines with special interest in the monitors were witnessed. In that confined space, if any alarm was to sound, all present would have heard it. It is contended that DW5’s claim that he heard an alarm, which no one else did, is a made-up story by himself or through coercion to avoid blame on the machines.

vi. It is highly doubtful that the 1st Plaintiff was hooked to the ECG monitor. The ECG dots are only three in number. They are the ones used as electrodes at the end of the wires connecting the patient to the monitor. The 3rd Defendant’s witness (DW5) categorically stated that he is the one who connected the dots to the patient. Subsequently, DW7 also put a claim to connecting these three dots on the 1st Plaintiff. The 1st Defendant also claims that she connected the dots. By the evidence we will show below, we will demonstrate that these dots were not connected.

a) The dots were not charged for and did not appear in the patient’s bill.

b) The parameters usually captured by the ECG monitor that is, blood pressure, carbon dioxide tidal wave, pulse rate and ECG(Electrocardiogram) wave forms are not recorded or shown anywhere in this whole case and the 1st Defendant’s expert witness (DW2) made the same observation.

c) The 3rd Defendant have up to now not availed the memory of the ECG monitor as was requested.

d) There is no alarm claimed or noted to have come from the ECG monitor despite an alleged reading of 35% having been claimed to be seen on it.

My Lord, following the above observations, it is clear that either the 1st Plaintiff was being operated on without hooking him to the ECG monitor or the monitor itself was defective. This makes all the Defendants liable in a serious way, and particularly the 1st and 3rd Defendants.

vii. DW1 was referred to and confirmed her statements during SAEC proceedings where she had stated inter alia the following: -

At Page 126 Plaintiff’s Bundle A “…The anaesthetist denied that she was not alerted by anyone on any concerns or the alarm having gone on…”

From the minutes of SAEC meeting of 9th September 2005, SAEC concluded that there was inadequate and ineffective monitoring, lack and or ineffective communication, etc. As against the 1st Defendant, it was noted that she had already served a 6 months suspension period and that this was extended to a year in total. SAEC recommended that she deserved to be severely reprimanded on account of the following: -

a) She failed to provide leadership

b) Poor documentation and Anaesthetic chart record, that she admitted to

c) She failed to fulfil the family’s psychological needs

d) Her attitude is wanting

e) Significant shortcomings

469. According to the plaintiffs, the above statements support our contention on the liability of the 1st Defendant.

470. In it was submitted that the 1st Defendant failed to observe reasonable care and skill and acted unprofessionally in the way she handled post operatively the patient and his family based on the following contentions.

i. It is standard practice for anaesthetists in a procedure where there is a complication to come out and speak to the family of the patient and explain the circumstances that led to the complication. This was not done

a) During the meeting of the Medical Advisory Committee of 17th February 2005 already alluded to above, the 1st Defendant was given an opportunity to explain to the 2nd and 3rd Plaintiffs what could have happened and why she was absent during the reversal of the 1st Plaintiff in the ICU. The 1st Defendant did not give an explanation.

b) The 1st Defendant has never met with the 2nd and 3rd Plaintiffs to give a true account of the events of the said procedure.

ii. The 1st Defendant managed the 1st Plaintiff poorly after the administration of anaesthesia. This is demonstrated by the fact that she was not available to either do the reversal or supervise it being done by the ICU Doctor. Instead, she kept off and turned off her phone.

The Case against the 2nd Defendant

471. As against the 2nd defendant, it was submitted that from the very start, the 2nd Defendant was very casual and reckless in the manner in which she handled this whole procedure of the 1st Plaintiff based on the following:

i. The 2nd Defendant booked the 1st Plaintiff in DSU as a'procedure'without putting his name and the nature of the procedure. Yet the 1st Plaintiff was her patient and she knew his name and the procedure that was to be undertaken. PW4 testified before the Medical Board that he was not told the name of the patient and did not even know the nature of the procedure. Standard practice requires proper and accurate identification by name for patients going into theatre or being admitted in the ward save for those who are unknown or unconscious. Standard practice also requires that the procedure is specified. This position was maintained by PW4 when he testified before the Court. This kind of booking was obviously very vague to PW4 and any other person who was supposed to participate in the process. It is no wonder that this is how the 1st and preferred anaesthetist, Dr Gerald Moniz, coupled with the surgeon coming late led to sudden change in anaesthetist, a practice that usually carries a risk.

ii. It is not disputed that the 2nd Defendant (DW3) arrived late and that due to the delay in the commencement of the surgical operation she had to opt to work with another anaesthetist who was not her preferred anaesthetist.

iii. DW3 did not communicate to the theatre and to Dr Gerald Moniz the preferred anaesthetist about her lateness. It is not only prudent but a standard practice to communicate to theatre and the preferred anaesthetist in case of anticipated delay so as to allow for the appropriate changes to be made in good time.

iv. During the Board proceedings DW3 was questioned on lateness, the loss of her preferred anaesthetist Dr Moniz and communication to theatre and Dr Moniz and her response clearly indicate how casual. she was as highlighted below,

At Page 122 she confirms she did not communicate to Dr Moniz. She states thus.

“… Actually in my mind Dr Moniz was waiting for me in theatre, so I hadn’t heard from him, I presumed he was in theatre…

At Page 121 DW3 stated towards the end she states thus,

“…When she came and the procedure started, as far as I am concerned, the theatre was mine, to do what I want with until I have finished whatever I want to do. The indication that the nurses were in a rush, well they were in a rush, but I certainly was not. I had no reason to be in a rush….Nobody gave me an option to postpone the exercise…”

As a team leader who was expected to work with the rest of the team, it is clear that DW3 did not demonstrate team leadership. It was therefore submitted that losing the preferred anaesthetist was due to DW3’s own casual way of handling the procedure right from the start. Had the preferred anaesthetist been available, it is highly unlikely that the unfortunate incident would have occurred.

v. DW3 undertook reduction of the 1st Plaintiff’s nasal fracture under general anaesthesia. This was a minor procedure. The events stated below put into question the level of DW3’s alertness and commitment to good outcome during the operation, being the primary healthcare giver and team leader.

a) She stated in her witness statement and evidence that there was minimal bleeding. She was also referred to the board proceedings where she had given evidence that there was minimal bleeding during the procedure and that the blood was normal colour. As came out clearly in evidence, it is not possible for blood to have a normal colour in a patient who had cardiac arrest and central cyanosis.

b) If indeed there was minimal bleeding during the procedure and DW3 checked where it was coming from, then it ordinarily means that she had a chance to look into the nasal mucus membrane under the theatre lights which are normally very bright. Evidence was adduced indicating that the 1st Plaintiff’s tongue and lips were blue. It was stated by both expert surgeons (PW8 and DW4) who were questioned on this issue that it is impossible in medical practice that the tongue and lips of a patient can be blue when the nasal mucous membrane and bleeding of the same show normal colour. Likewise, the blood sucked from the pharynx when checking the endotracheal tube could not have been of normal colour as alleged.

c) DW3 alleged that she was informed when she was degloving and removing her surgical robes that the 1st Plaintiff’s lips were blue. This indicates that DW3 had actually walked away from her patient without checking or finding out about his condition before she went to remove her gloves and robe. There is no evidence that she had enquired from the anaesthetist the state of her patient's health before going to deglove. This is not an acceptable practice because she was actually leaving behind a severely injured patient.

d) During cross examination, DW3 was referred to her evidence before SAEC where she had stated that the theatre room was absolutely quiet. On 10th June 2005 before SAEC she stated that she could not hear machines making any noise, neither did she hear any activity or problems between the 1st Defendant and the theatre technician. However, in her oral evidence before the Court, she stated that she heard the normal beeping sound of the heart coming from the monitor. The 1st Plaintiff ended up having cardiac arrest and central cyanosis and she denies hearing anything unusual. After cardiac arrest and central cyanosis the monitor cannot be beeping a heart sound. This puts into question the alertness of the surgeon. Had she been alert, she should have noticed the cessation of the beeping from the monitor especially as she claims to have heard it at the beginning and this could have saved her patient. Dr Ominde Khainga (PW8) stated in paragraph 2(iii) of his witness statements and evidence that they often listen to the beeping sound of the heart as it is of great importance. Prof. Obura (DW4) also acknowledges in his witness statement and evidence that the surgeon may hear the changing audio pitch of the monitoring machine if the audio mode is on.

e) From the evidence, it is indicative that the complication of cardiac arrest and central cyanosis started at the commencement of the surgical procedure or shortly thereafter. Yet DW3 still maintains that she does not know when the problem started as was stated by Prof. Raja where he stated thus, "I don't want to blame either one or the other but just looking at an independent person, obviously they shouldn’t have suffered hypoxic brain injury, so there has been hypoxia. And there has been a problem, I’ve been listening to the whole conversation one can clearly say it didn’t happen at the end of the procedure. It must have happened earlier. If the procedure lasted 5 or 10 minutes it must have been early part of the procedure that the patient must be having hypoxia. Now this hypoxia must have been picked up earlier, whether there were faulty machines, or whether there were alarms which were switched off that didn’t go off, I cannot comment but it is definitely sure that the patient had hypoxia...."

It was therefore submitted that from the foregoing statements, it is clear that DW3 was not alert. The degloving and derobing before ensuring the health state of her patient as a primary care giver was reckless.

Rference was made to Prof. Raja’s statement before the Board that all must be alert (See page 143 of the Plaintiff’s Bundle B last paragraph starting: "Everybody has to be, the whole team has to be alert...")

Prof. Raja further stated at Page 139 of Plaintiff’s Bundle B thus,

“…If you…the patient comes in, the first thing is that before you start giving any drugs to the patient, the patient is hooked to a cuff, a blood pressure cuff, pulse oximeter, ECG electrodes. These three things are the first things which are hooked up and then everybody looks at the monitor. That is the standard thing which everybody who has been in theatre will know that that is a standard thing…”

vi. The fact that DW3 was not in constant communication with her theatre team as a team leader and yet she confirmed that she was in charge of the chain of command in theatre. This is evidenced by,

a) DW3’s evidence before SAEC at Page 135-136 of Plaintiff’s Bundle A starting:

“…In conclusion, the surgeon felt that the patient was not closely monitored. Something underlying was going on and was missed out. If something goes wrong in theatre during a surgical procedure then all are responsible. The surgeon has also realized that regular communication with the anaesthetist and the rest of the team is very important. In this case there was no communication or there was an issue of attitude…”

b) The evidence of Prof. Raja during the Board proceedings where Professor Raja indicated that the surgeon has the overall responsibility in a surgical operation, there is need for team work among other theatre staff and consultants and the same would only be achieved with a team that is well set up and has worked before frequently on similar procedures.

c) Practice requires that the lead surgeon should guide the procedure all the way. At the time of reversal of the patient in the ICU, from paralysis to sedation, DW3 as a team leader was not present and had to be called in by PW7. This is evidenced by page 5 paragraph 2 of DW3’s written statement filed in this Court, and also DW3’s written statement to the board dated 15th April 2005.

vii. PW8 and DW8 stated that the surgeon is the primary care giver/ team leader and would be responsible for the outcome of his/her patient. PW8 stated at paragraph 2(iv) of his witness statement thus;

“… He/she has to evaluate and monitor the patient prior, during and after operation. He/she has the responsibility to coordinate the happenings in theatre including the actions by the support staff like nurses and technicians in such a way as to ensure a safe and successful outcome of the patient. Adequate, audible proper communication and high levels of alertness are vital in theatre during any procedure involving general anesthesia be it short or long operation…”

DWA stated in evidence thus;

“… The surgeon is the coordinator. He makes sure the patient knows what is going and what will happen in theatre but does not take professional responsibility of his professional colleagues. As a team leader you have responsibility for the patient’s outcome since to the patients the surgeon is his doctor… Every professional wishes positive outcome so the surgeon’s responsibilities to the patient must be taken into perspective. The sentence has to be qualified. I however agree that it is a teamwork…. I have stated there should be communication in theatre...”

The above was alluded by Prof. Raja during the Board proceedings at the Plaintiff’s Bundle B thus

“…Having said that, eventually the responsibility the moral and professional responsibility of as a surgeon would be mine to whatever the outcome is to the patient but one cannot absolve the other care providers who are equally responsible for their roles and responsibilities within the team. One must understand that it is team work…”

viii. It was Prof. Raja’s evidence that in dealing with disclosing the occurrence of a complication in theatre to the family of the patient, a team leader needs to be upfront, clear, spell out what happened and be very honest with the situation and it shouldn’t be a blaming or shaming process. It is the Plaintiff’s contention that the said standards were not adhered to hence the reason of the inquiry before SAEC, and the medical board.

ix. DW3 confirmed the minutes of SAEC meeting of 9th September 2005, where SAEC concluded that there was inadequate and ineffective monitoring, lack and or ineffective communication, etc. As against DW3, it was noted that she was the overall team leader and therefore she will be reprimanded for not playing this role.

It was noted that the SAEC made a recommendation that the surgeon in this case should be reprimanded for not playing her role as a team leader. According to the plaintiffs, the Medical Board did not find the 2nd Defendant innocent. It found that there was no sufficient evidence to sustain a charge of infamous conduct. It was therefore submitted that the plaintiffs exhibited sufficient evidence to find the 2nd Defendant liable for negligence on a balance of probabilities.

The Case against the 3rd Defendant

472. As against the 3rd defendant, it was submitted that evidence that was adduced during the course of the hearing in support of the above particulars of negligence included the following: -

i. The machines of the 3rd Defendant could have been faulty as evidenced by the occurrence of the following events:

a) As already stated above, the 1st Plaintiff was allegedly on two independently functioning monitors. The oxicarp (pulse oximeter) allegedly alarmed but the ECG one did not alarm. Ordinarily, if the monitors were in good working condition and had been checked to be in good working condition then they would have alarmed either visually or audibly.

b) By the time the ECG machine’s readings were reaching 35% SPO2 when the 1st Plaintiff’s lips were noticed to be blue, it should have alarmed continuously until there is an intervention. This did not happen.

c) It is not clear why the monitor did not alarm if the patient did not have a heartbeat, a pulse and hence no blood pressure.

d) During Board proceedings, Prof. Raja at the bottom of page 138 Plaintiff’s Bundle B commented as follows on the readings that have been alluded to allegedly from the machine,

“…Yes, I was just saying these readings do not make sense. Or the patient should not have arrested… So these readings which are recorded either they are not correct or the patient should not have arrested. There is a clear discrepancy. Obviously as I said the machines may have been faulty or the monitors may not have been picking up, the patient cannot arrest on these readings which have been mentioned here…

ii. It is highly doubtful that the 1st Plaintiff was hooked to the ECG monitor. The ECG dots are only three in number. They are the ones used as electrodes at the end of the wires connecting the patient to the monitor. The 3rd Defendant’s witness (DW5) categorically stated that he is the one who connected the dots to the patient. Subsequently, DW7 also put a claim to connecting these three dots on the 1st Plaintiff. The 1st Defendant also claims that she connected the dots. By the evidence we will show below, we will demonstrate that these dots were not connected.

a) The dots were not charged for and did not appear in the patient’s bill. Dr Kabetu, a consultant anaesthetist also noted as much.

b) The parameters usually captured by the ECG monitor that is, blood pressure, carbon dioxide tidal wave, pulse rate and ECG(Electrocardiogram) wave forms are not recorded or shown anywhere in this whole case and the 1st Defendant’s expert witness (DW2) made the same observation.

c) The 3rd Defendant have up to now not availed the memory of the ECG monitor as was requested.

d) There is no alarm claimed or noted to have come from the ECG monitor despite an alleged reading of 35% having been claimed to be seen on it.

It was therefore submitted that following the above observations, it is clear that either the 1st Plaintiff was being operated on without hooking him to the ECG monitor or the monitor itself was defective. This makes all the Defendants liable in a serious way, and particularly the 1st and 3rd Defendants.

iii. The 3rd Defendant had attempted to create an impression that since the monitors were used on previous and subsequent patients successfully, the same were in good working order. It was however submitted that this is not conclusive evidence as the previous and subsequent patients may not have necessitated a reason for the monitor to alarm. For example, a car alarm only alarms when there is intrusion, e.g. when the door is forcefully opened by a thief. But if there is no intrusion or as long as there is no intrusion, it may appear to be working but it is actually faulty. As for the medical alarms, the equivalent of an intrusion is if any of the parameters being monitored fall outside the normal range that has been set such as cardiac arrest, low oxygen concentration, absence of pulse, etc. If all these parameters remain in the normal range no alarm will be triggered. Further, the monitor may function but have a faulty alarm system meaning even if these parameters were off the normal range no alarm will occur. It was therefore submitted that the continued use of the monitor immediately without isolating and checking the same after the incident was careless and dangerous in medical practice.

iv. We further submit that an alarm if working must alarm and when it alarms, it should be heard by all in theatre. No alarm is made to whisper whether it is a house, a car or hospital alarm. During the hospital visit, it is strange that the 3rd Defendant’s alarm was hardly audible.

At Page 115 of Plaintiff’s Bundle B, DW3 confirmed that the alarms are loud and that even someone outside theatre would hear it if it turns on.

v. It is not in dispute that the 3rd Defendant did not make any attempt to retrieve the information on the memory of the monitor in a case where there was a serious complication leading to an inquiry. Most witnesses including all the expert witnesses stated that had the memory been retrieved, the information therefrom would have been useful in establishing what exactly happened to the 1st Plaintiff. This issue also came up before the Board and Prof. Raja stated thus,

“…Most new machines have got a record on it, you can get a tracing on it, you can print out from it, especially all ICU monitors, you can look back at exactly the chronology of events….”

vi. It has been detailed in evidence how one Dr Thanga, an employee of the 3rd Defendant, attempted to reverse the 1st Plaintiff in vain. The said Dr Thanga who was the 3rd Defendant’s ICU Doctor appeared not to be sure of the procedure as she had apparently tried but the 1st Plaintiff did not respond. The 1st Defendant was booked for advise but she could not be reached. One Dr Kwasa was called in the absence of the anaesthetist and he advised on the reduction of the dosage of dormicum that had been prescribed by the 1st Defendant.

vii. Mr. David Mueke, DW5, an employee of the 3rd Defendant alleged that he heard the alarm. He was consistent in his evidence before court and also as stated on 11th February 2005, thus,

“…Surgery started; in between few seconds the oxicarp alarmed. It showed oxygen at 90%. I told Dr Okutoyi and showed her the reading. Dr Okutoyi told me that our machine the oxicarp was not good or it was faulty. Then I mounted the other oxygen probe to a different fingertip. It still showed lower oxygen……. Surgery was over, Dr Olende removed the drapes and that is the time Dr Okutoyi said the patient’s mouth was blue…. At that time, the oxicarp oxygen reading showed 35%....”.

Further, on 10th June 2005 before SAEC, he stated that he saw 90% readings and alerted the 1st Defendant who said that the machines were faulty. He used the other machine which gave similar readings. He was not sure whether the 1st Defendant did anything after the alarm went on as he was already confused by her reaction. Further on 17th June 2005 before SAEC, he reiterated his earlier statement that he alerted the 1st Defendant about the alarm but she said that it was faulty. The SAEC members’ observed that it was strange that the best that DW5 did was only to inform the 1st Defendant of the alarm without taking any further action especially after witnessing the alleged response by the 1st Defendant. This is notwithstanding that the 1st Plaintiff’s life would have been in danger as it turned out. This further notwithstanding his statement before the Board proceedings at Page 304 of Plaintiff’s Bundle B that “the patient is king.”

viii. It was pointed out during the hearing that from the minutes of SAEC meeting of 9th September 2005, SAEC concluded that there was inadequate and ineffective monitoring, lack and or ineffective communication, etc. As against the 3rd Defendant’s lab technician (DW5), it was noted that despite the fact that monitoring is the responsibility of the anaesthetist, the lab technician did not do what was required of him. The SAEC noted that there was an element of untruthfulness and that he needs to be reprimanded. There is need to establish who he is answerable to and check his records for any incidences in the past and if no incidents then give him a warning letter and observe him closely for 6 months and a report be submitted to SAEC by his immediate supervisor.

ix. Sr. Catherine Kibuchi, the scrub nurse (DW6), who was also an employee of the 3rd Defendant, was referred to her statement made 10th June 2005 before SAEC where she admitted that staff in the unit were rushed and busy that day. The 1st Plaintiff’s case was the third procedure that morning. She remembers an alarm went on immediately the procedure started. She heard the lab technician David Mueke tell the 1st Defendant that alarm had gone on. She confirmed these statements. From the minutes of SAEC meeting of 9th September 2005, SAEC concluded that there was inadequate and ineffective monitoring, lack and or ineffective communication, etc. As against the 3rd Defendant’s scrub nurse, it was noted that she needs to be informed that she is expected to be alert and know what is happening around her as a scrub nurse. SAEC recommended that she will get a moderate warning letter.

x. Sr. Rosemary Kaviti, the circulating nurse (DW7), who was an employee of the 3rd Defendant, gave her evidence in chief. She was cross examined on her statement of 11th February 2005, where she had reported thus,“… After induction, and the scrub team had settled, I had to rush outside the theatre………… I came back to theatre and did not look at the monitor but heard the noise of SPO2 beating well. Between 11. 07am and 11. 10am approximately, when we removed the drapes, Dr Okutoyi noticed the patient was blue on the lips. I rushed to check the pulse which I could not feel but SPO2 on the monitor was 35%. ICU team was called immediately as we started cardiac massage....”She confirmed this position. She further confirmed that on 10th June 2005 before SAEC she admitted that the unit was short staffed. She never heard the alarm as she was the circulating nurse between office and theatre.

xi. From the minutes of SAEC meeting of 9th September 2005, as against the 3rd Defendant’s DSU, SAEC observed that record keeping in DSU is not commensurate with that in the main theatre, and that protocols and standards have to be applied in both units. It was also noted that staffing in DSU is an area that needs to be addressed as in this case the circulating nurse who was supposed to circulate within theatre and give drugs was in and out as she was doubling up as the shift in-charge.

xii. There is evidence that a Foleys Catheter had been inserted in the 1st Plaintiff in the ICU. It is the duty of the 3rd Defendant’s nurses to empty the urine bags and to note and report changes in colour or turbidity of urine to the consultant in charge. It is not understood why the changes in the 1st Plaintiff’s urine was not reported until when PW1 and PW7 discovered that the 1st Plaintiff had marked tenderness in the abdomen prompting the removal of the catheter which had an emission of urine mixed with pus. The urine was found to have an infection. As a result of the infection, the 1st Plaintiff suffered a hypoxic state while in the ward and had to be put back on oxygen to stabilize his oxygen levels. This issue was also addressed by Prof. Raja before the Board and at Page 151 of Plaintiff’s Bundle B, he states thus,

“…But usually, it is the nurses who raise the alarm, because they are with the patient all the time and they are the ones who will tell you that there is something wrong here. Because they are monitoring everything. Like they tell us, the patient’s blood pressure is low, or the blood pressure is high, or the saturations are dropping, similarly they tell us about other things also…”

xiii. The 3rd Defendant only availed the maintenance records of the chart of DSU theatre machines, specifically oxicarp 4700, whose date range was 23rd March 2005 to 23rd September 2005 after the incident. No record was availed to show the servicing of the machine in regards to the period in question herein. DW4 stated in his witness statement thus,

“…There arises a second question on the service record and efficiency of the anaesthetic machine used. It would be helpful to know if the servicing of this machine was upto date and if after the event, the machine was suitably identified, isolated and assessed by an uninterested parties. It is also interesting that the printout which can usually be obtained from this machine immediately after surgery was not obtained…”

xiv. It is evident that the 3rd Defendant gave admission rights to DW1 yet she did not have a valid private practicing license as at the material time. None was shown to Court.

xv. With respect to the hospital bill issue, the evidence has already been adduced above. As already referred to above, from the minutes of SAEC meeting of 9th September 2005, SAEC recommended that the hospital to consider the medical bills with compassion and that the matter be addressed administratively. Further, the Board Proceedings dealt with the issue at Page 171 of Plaintiff’s Bundle B when Prof. Magoha questioned the 3rd Defendant’s then CEO Dr Mailu on the matter. Dr Mailu stated that the issue of who should pay the bill should be determined by competent authorities.

473. It was submitted that the 3rd Defendant did not have a system in place to support young consultants who they engage to manage patients. This was acknowledged by DW3 who requested before SAEC as recorded in SAEC minutes of the meeting of 10th June 2005 that the hospital management should have a system in place to support the younger consultants or have backup in the event of such occurrences.

474. The plaintiffs in support of their submissions referred to the case of M (a Minor) –vs. –Amulega & Another [2001] KLR 420 as cited in the case of Ricarda Njoki Wahome (suing as an Administrator of the estate of the Late Wahome Mutahi (Deceased) vs. Attorney General & 2 others (2015) eKLR and Rule 12 of the Medical Practitioners and Dentists (Private Medical Institutions) Rules, 2000.

475. In view of the above provision, it was submitted that the 3rd Defendant cannot escape liability in this matter.

Issue 2: Did the 1st Plaintiff by reason of the negligence and/or carelessness in his treatment management and care by the Defendants suffer the injuries, loss and damage pleaded in the Plaint?

476. According to the plaintiffs, the Particulars of Injuries that were sustained by the 1st Plaintiff are as pleaded in paragraph 18 of the Plaint and they were proven during the trial. In this regard, we reference was made to the details of the medical examinations that the 1st Plaintiff was subjected to, and the medical reports that were adduced in evidence detailing the injuries that were sustained by the 1st Plaintiff a result of the acts and/or omissions of the Defendants who we submit are liable as already highlighted above.

Issue 3: Are the Plaintiffs entitled to damages, and if so, what is the quantum?

477. It was submitted that the Plaintiffs are entitled to damages based on the pleaded reliefs which were as follows:

i. The 1st Plaintiff for general damages for pain, suffering and loss of amenities and future pain and suffering.

ii. The 1st Plaintiff for Damages for future requirements as pleaded in paragraph 18 of the Plaint.

iii. The 1st Plaintiff for Loss of expectation of future earnings or earning capacity.

iv. The 1st Plaintiff for Special Damages of Kshs. 1,071,080. 00

v. The 2nd and 3rd Plaintiffs for damages for grievous shock

vi. Costs of the suit

vii. Interest on prayers roman (i) to (v) above

478. As regards general damages for pain, suffering and loss of amenities and future pain and suffering for the 1st plaintiff, it was submitted that the 1st Plaintiff suffered injuries as already detailed and alluded to by PW2, PW4, PW5, PW7 and PW8. Following the brain injury, the 1st Plaintiff cannot live independently without support. The 1st Plaintiff’s mother (PW6) in her own words stated that she looks at the 1st Plaintiff and sees a shell. She gave an account of their attempts to take the 1st Plaintiff to an educational institution known as DALC to learn simple mathematics in vain as the 1st Plaintiff wouldn’t focus and the teachers suggested he be discontinued as his memory couldn’t hold instructions. He was also taken to a special school but he couldn’t control himself and on certain occasions started shouting all over the school and had to be withdrawn from school. He is unable to go out by himself to-date and there is no hope of him being an independent man. He asks where his friends are, whether he will ever marry and get children, etc. PW1 also testified to the effect that the 1st Plaintiff is also temperamental and becomes moody, and when this happens, he goes into manic situations and is very aggressive and bangs the door, and he also goes into hypomanic state in which he becomes depressed and sits alone and shows tendencies of obsessive compulsive disorders like he can bathe 6 times a day and gets very aggressive when corrected, etc.

479. From the fore-going, it is evident that since 8th February 2005 to-date, the 1st Plaintiff has and continues to go through a lot of pain and suffering including mental anguish, emotional distress, loss of enjoyment of his youthful life, fear, anger, humiliation and anxiety. There has been continuous pain and suffering for a period of over 10 years and as stated by PW5 and PW8, this is likely to continue for the rest of his life.

480. In order to give a fair and reasonable assessment of damages for pain and suffering as a consequence of the 1st Plaintiff’s injuries as particularized, the plaintiffs assessed quantum for each of the particulars of injuries separately as guided by judicial authorities as below.

481. With respect to the case of brain damage leading to lack of short term memory and loss of cognitive abilities, reference was made to the case of A.A.A vs. Justus Gisairo Ndarera & Another Nairobi HCCC No. 1015 of 2003 / (2010) eKLR where the brain injuries sustained by the Plaintiff led to reduced memory and reduced cognitive function. In this case, the Plaintiff was awarded general damages for pain and suffering for Kshs. 2. 5 Million and loss of future earnings Kshs. 1 Million, etc. However, unlike in the A.A.A. Case above, the 1st Plaintiff lacks short term memory completely and he lost cognitive abilities amongst other particulars of injuries. The 1st Plaintiff’s circumstance would therefore entitle him to a higher award under this category of injury.

482. With respect to mental disorientation, it was submitted that the Plaintiff, in the case of Alec Asutsa vs. Samy Maina Ndei Nairobi HCCC No. 1251 of 2006 eKLR, was awarded a sum of Kshs. 5 Million general damages for pain and suffering.

483. With respect to poor co-ordination of movements to the extent that the 1st Plaintiff cannot write, play basketball, swim or sing, etc, it was submitted that similar particulars of injuries were exhibited in the cases of Peris Onduso Omondi vs. Tectura International Ltd & John Musyimi HCCC No. 715 of 2002andSusan Wanjiru Njuguna vs. Keringet Flowers Ltd & 2 Others Nakuru HCCC No. 64 of 2001. In the Peris Onduso case, the injury sustained by the Plaintiff caused her to become very forgetful and absent-minded, and developed a staggering walk with inability to write properly coupled with an abnormal behaviour. She also developed a slurred and incoherent speech with very poor co-ordination of the movements of the right hand hence inability to write as well as poor gait. Inthe Susan Wanjiru Njuguna case on the other hand, the brain damage sustained by the Plaintiff made the Plaintiff suffer loss of speech and hemiplegia or weakness of the right upper limbs. The Court awarded the plaintiffs in each of the stated cases a sum of Kshs 3,000,000. 00 in general damages for pain suffering and loss of amenities.

484. With respect to psychiatric disorders and compulsive obsessive disorders, it was submitted that the case of Charles Kimani Ngángá vs. Kenya Power & Lighting Company Limited Nairobi HCCC No. 108 of 1988 has almost similar particulars. In this case, the Court awarded the Plaintiff Kshs. 2. 5 Million for pain and suffering as a result of psychiatric disorders. The plaintiffs however submitted that the 1st Plaintiff’s circumstances were more severe.

485. The plaintiffs however appreciated that none of the above judicial authorities capture in totality all the particulars of injuries of the 1st Plaintiff in the instant case but instead, each of the cases above touch on specific particulars of injuries to the exclusion of other particulars of injuries that the 1st Plaintiff suffered. Accordingly, relying on only one award in one case to the exclusion of others cannot be considered to adequately compensate the 1st Plaintiff’s circumstances in totality. Accordingly, in order to find basis for assessing an all-inclusive award that would get close to the 1st Plaintiff’s circumstances, it was submitted that the total amounts awarded in all the above four categories of particulars of injuries/cases be aggregated. In this regard, it was submitted that looking into the totality of the 1st Plaintiff’s injuries vis a vis the above cases, had the 1st Plaintiff’s circumstances been all fours with all the particulars in the above cases put together, the 1st Plaintiff would have been entitled to make a case for an award of a minimum amount of Kshs. 13 Million being the total award for all the particulars of injuries pleaded. However, the 1st Plaintiff’s claim is unique and cannot stand at that minimum amount because of the following reasons: -

i. The awards in the above cases were made several years ago and taking into consideration inflation, higher amounts are likely to come into play.

ii. The 1st Plaintiff’s particulars of injuries as listed in paragraph 18 of the Plaint and detailed in paragraph 21 and 22 above are more severe than the particulars of injuries in the above cases.

iii. The 1st Plaintiff has gone through pain and suffering for the past over 10 years. He continues to go through pain and suffering to-date and this is likely to continue for the rest of his life. The 1st Plaintiff is therefore entitled to damages for past and future pain and suffering. Prolonged suffering was not a common scenario in the above cases.

486. Bearing in mind that damages awarded for Pain and suffering has been a matter for discretion of the Court based on the circumstances of each case, the court was urged the Court to look into the circumstances of this case and the above judicial authorities and enhance the amount of Kshs. 13 Million as computed above to an award of Kshs. 20 Million (being Kshs. 10 Million for the 1st Plaintiff’s past pain and suffering for the last 10 years and Kshs. 10 Million for the future pain and suffering for the rest of the 1st Plaintiff’s life).

487. As regards damages for future requirements it was submitted that this has been categorized into two. First is the requirement for a Full Time Helper for the future remainder of the 1st Plaintiff’s life, and secondly, Future Medical Care and Treatment requirements for the 1st Plaintiff.

488. With respect to the costs of a full-time helper, the Plaintiffs filed a Statutory Affidavit for the helper who confirmed that he is paid Kshs. 10,000/- per month as at January 2008. PW1, PW4 and PW6 testified to the effect that the 1st Plaintiff will require a minder for the rest of his life. In the case of Nancy Oseko vs. Board of Governors Maasai Girls High School Nairobi HCCC No. 1718 of 2009, the Court awarded Kshs 20,000. 00 per month as costs of a minor who had less severe injuries. Similarly, in the case of Martin Kidake (Minor Suing through mother and next friend Rebecca Aseyo) vs. Wilson Simiyu Siambi Nairobi HCCC No. 557 of 2005, the Court awarded Kshs. 10,000/- per month for the minder. Accordingly, adopting the age of 60 years, and bearing in mind that the 1st Plaintiff was 17 years as at the date of the surgery, this translates to a sum of Kshs 5,160,000. 00 (Kshs. 10,000 x 12 x 43) if all factors were to remain constant. The Court was invited to appreciate that even though the amount of Kshs. 10,000/- per month was pleaded as at the date of filing suit, the same is subject to increment due to inflation and the same is likely to double up in the coming years. It was therefore implored upon to exercise its discretion and make an award of a modest sum of Kshs. 10 Million under this head of damages.

489. With respect to future medical care and treatment on the other hand, the 2nd Plaintiff outlined the expenses he has incurred on the 1st Plaintiff for psychiatric and neurological reviews which continued post the operation date to-date, and the costs for occupational therapy. PW2 and PW5 stated that the 1st Plaintiff still has major neurological and neuropsychiatry defects. Needless to note, the 1st Plaintiff requires medical attention and management for the rest of his life.

490. Taking into consideration the costs of occupational therapy at Kshs. 1,000/- per session as evidenced by the attached receipts, the costs of psychiatrist consultation at Kshs. 5,000/- per visit and the costs of neurologist consultation at Kshs. 5,000/- per visit, considering that the 1st Plaintiff requires medical consultation from these experts whose frequency moved gradually from every week to every month to at least 6 times in a year, it was rated that the yearly medical needs for psychiatric review, neurological review and occupational therapy to a sum of at the very least Kshs. 96,000/- per year (16,000/- X 6times). Taking into consideration life expectancy of 60 years and his remaining 30 years, this translates to a sum of Kshs. 2,880,000/- excluding medication whose requirement may vary on every review. Following in the footsteps of the decision inSosphinaf Company Limited & Another vs. Daniel Ng’ang’a Kanyi Civil Appeal No. 315 of 2001and taking into consideration the possible medical requirements and the inflation rates the court was implored to make an award for a sum of Kshs. 10 Million under this head.

491. In total, the 1st Plaintiff makes a total claim of Kshs. 15 Million under this head of damages for future medical requirements as pleaded in the Plaint.

492. It was submitted that as regards the 1st Plaintiff’s for Loss of expectation of future earnings or earning capacity, guided by the reasoning in Mawji Govind & Company vs. Munga Civil Appeal No. 161 of 1989 and Peris Onduso Omondi vs. Tectura International Limited and John Musyimi Nairobi HCCC No. 715 of 2002, there is no doubt that the 1st Plaintiff would have made some earnings in his life. As paraphrased below, evidence was led to cover all sorts of relevant factors as the expected future earnings of the 1st Plaintiff and the fact that the injury he sustained would not allow him realize his dreams. As at the time of the incident, the 1st Plaintiff was a Form 4 Student who excelled in academics and co-curriculum activities. PW3, the 1st Plaintiff’s very close friend in school testified to the effect that the 1st Plaintiff was highly influenced by his parents and he would have wanted to study medicine. PW1 and PW6 stated that the 1st Plaintiff’s desire was to become a doctor in radiology as his father, and that he was highly influenced by his father. PW2, PW5 and PW7, all doctors in various fields, stated that taking into consideration the damage that was suffered by the 1st Plaintiff, there are no chances of him ever becoming a doctor. PW1 stated that an employed radiologist earns about Kshs. 14,000/- per day and this was not challenged by any of the Defendants in cross examination. It was submitted that the 1st Plaintiff’s future earning is real and assessable and was thus likely to be at least Kshs. 420,000/- per going by the employment amount of Kshs. 14,000/- per day. Suffice it to note that the 1st Plaintiff was bubbly and performed with excellence in both academics and co-curriculum activities and was even featured as a Young Achiever by KTN Television, and that an assessment of Kshs. 420,000/- per month can only be on the minimum side. If the achievement of his former classmate who admired the 1st Plaintiff very much is anything to go by, PW4 testified that he was employed and worked as a software engineer. There is therefore no doubt that the 1st Plaintiff would have been earning at his current age of 30 years. The Court was urged to take into consideration the totality of the circumstances of this case and adopt a real and reasonable assessment of a monthly earning of Kshs. 420,000/- as the multiplicand.

493. On the multiplier, we submit that the Plaintiff would have earned his income up to the age of at least 60 years. The Court was therefore urged the Court to adopt a multiplier of 30 years. This translates to a loss of Kshs. 151,200,000/-. Bearing in mind that the 1st Plaintiff may spend about half of the amount in living costs and expenses, the court was urged to make an award for a sum of Kshs. 75,600,000/- for loss of expectation of future earnings or earning capacity.

494. As for Special Damages of Kshs. 1,071,080. 00, it was submitted that this amount was specifically pleaded and proven and the court was implored to award the same.

495. As for the 2nd and 3rd Plaintiffs for damages for pain and suffering/grievous shock, it was submitted that the said plaintiffs gave a detailed account of how the injury that the 1st Plaintiff affected them and family. Both were very clear on the psychological and emotional distress that they went through in coming to terms with the situation and that they continue to suffer to-date. PW5, an expert in neurology stated that what the parents experienced is medically known to have an impact on the parents who may require emotional counselling as it may result into family instability in as much as other people may be resilient.

496. It is also noteworthy that the 2nd and 3rd Plaintiffs have lost dependency on the first Plaintiff as he will not be able to take care of them in future. In this regard reliance was placed on the holding in the case of Kenya Breweries Limited vs. Saro [1991] Mombasa Civil Appeal No. 441 of 1990 (eKLR) where the Court of Appeal rendered itself thus:

497. While appreciating that the 1st Plaintiff is not deceased, it was submitted that it has been proven that the first Plaintiff will never be able to depend on himself and in the circumstances, he will never be able to take care of the 1st and 2nd Plaintiffs, yet he would have been able to do had everything been okay. The 2nd and 3rd Plaintiffs have no doubt lost the 1st Plaintiff’s independence. Taking into consideration the circumstances of this case and the prospects of the 1st Plaintiff, the court was implored to exercise its discretion and make an award of damages for Kshs. 6 million being Kshs. 3 million each for the 2nd and 3rd Plaintiffs.

498. The plaintiffs therefore contended that they had proved their case on a balance of probabilities and urged the court to grant the prayers sought in the Plaint and the quantum of damages under various heads as submitted on and justified above.

First Defendant’s Submissions

499. On behalf of the first defendant, the following issues emerged during the course of the hearing as issues that this Honourable Court must make a finding on in order to conclusively determine this matter:

i. Whether it is possible to single out the exact cause of the Cardiac Arrest that occurred to the 1st Plaintiff.

ii. In the event that it is not, how should the Court handle the claim.

iii. Bolam’s Test

iv. How should the Court handle the 3rd Defendants refusal to produce the Transcripts from the monitors.

v.Contribution.

500. According to the 1st defendant, if there is one gaping hole that has been left after all the testimony has been tendered in this matter, it is that we are yet to identify what caused the Cardiac Arrest and none of the witnesses that have appeared before the Court in this matter have managed to conclusively and concisely answer that question both at this hearing and at the Medical Practitioners Board. According to the 1st defendant, neither the 2nd Plaintiff nor the experts were able to pin point the exactly cause of the problem.

501. Even when the matter was still before the Medical Practitioners and Dentists Board the question went unanswered and the Board which consists of experts in the medical profession was unable to make any finding at all on the Cause of the Cardiac arrest. During this hearing we highlighted the various instances before the board and in various reports where experts stated that they are unable to pinpoint the cause of the cardiac arrest. According to the 1st defendant, this particular point is critically important to this case and referred to Ricarda Njoki Wahome vs. The Attorney General and 2 Others HCCC 792 of 2004where the Court reiterated the words of the Supreme Court in Ms. Ins. Mahotravs DR A Kriplani and Others.

502. It was submitted that being human our understanding of the workings of the human body are limited as we are not the maker. As such the practice of medicine comes hand in hand with a substantive element of risk and reference was made to Hatcher vs. Black and Others [1954] Times.

503. According to the 1st defendant, it is for this reason that we must be careful not to punish the doctor for dedicating their life to a profession that is fraught with this risk. Unless Bolam’s test illustrates negligence, the Court must be shy to apportion blame or to find fault. If we did so we would make the medical professional such a risky field that students of medicine would never go ahead with it. It is already a tough field as is and this was acknowledged by the 2nd Plaintiff. . According to the 1st defendant, without a sound and conclusive finding on how the Cardiac Arrest happened, this Court cannot lay blame on any party as to do so would be presumptive and grossly prejudicial.

504. As regards Bolam’s test, the 1st defendant relied on the case of Ricarda Njoki Wahome vs. The Attorney General and 2 Others HCCC 792 of 2004.

505. According to the 1st defendant, during this hearing she highlighted the opinions of five different experts in anaesthesia who stated that they found nothing remarkable with the anaesthetic procedure used. Dr Kabetu’s report states that 3% Halothane was alright for 3 minutes. The report by the university makes no mention whatsoever of irregular anaesthetic procedure or drugs and in fact states that “the patient was anaesthetized with normal general anaesthesia”. The PIC report to the Medical Practitioners Board has no mention of irregular anaesthetic procedure or drugs. DW-1 testified that the PIC is constituted of highly qualified consultants in various fields. PW-4 Dr Gerald Moniz’s testimony was that 3% halothane is acceptable unless the patient is under controlled ventilation which essentially means that the patient is not breathing on his own “It means that the patient is paralysed”.However,this was definitely not the case here contrary to the absurd picture that the Plaintiff tried to paint concerning IPPV. Based on the evidence adduced, it was submitted on behalf of the 1st defendant that the Plaintiff’s have not presented any evidence by any expert witness to show that the anaesthetic procedure used was downright and blatantly wrong. While Dr Moniz did indicate that he may have included Atropine in his cocktail of drugs, on the other hand, the expert witness Dr Gacii testified that “I do not agree that Atropine should have been used”. Therefore the manner in which the Court should deal with this grey area is in Bolam’s Test and quoting again fromRicarda Njoki Wahome vs. The Attorney General and 2 Others HCCC 792 of 2004:

506. According to the 1st defendant, the procedure applied by the 1st Defendant was within the scope that professionals in that field would have followed and indeed neither the PIC nor the Medical practitioners Board have made a finding of fault on the same. There could be differing opinions on additional drugs that could have been used or that a different doctor would have had their finger on the pulse of the patient throughout the entire five minutes of the procedure, but that cannot of itself lead to a finding of negligence under Bolam’s Test. The same applies to the argument that more pre- operative assessment may have been conducted. The 1st defendant reiterated the quote above that: “Failure to use special or extra-ordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence”.

507. As regards the 3rd defendants refusal to produce the transcripts from the monitors it was submitted firstly, without going into intricate details of the testimony of every witness who was in theatre, that it is evident that the machines that the patient was connected to did not alarm. Only one witness claims he heard an alarm. During the hearing it was largely demonstrated that it would be impossible that only one person in the theatre could have heard an alarm to the exclusion of everyone else. Indeed the Medical Practitioners board did state that his Testimony did not manifest as credible. Secondly, the only evidence that the 3rd Defendant needed to produce to prove that the machines were working and to completely exculpate themselves from any blame whatsoever was the transcript of the said monitors and they completely refused to do so. The inference therefore can only be that the said evidence would be completely damning to their case. It was the 1st defendant’s submission that the very failure of the monitor to alarm (being one of the two core functions of the machine) means that the machine malfunctioned by failing to give the alarm.

508. As to whether this malfunction could have led to the current state of affairs, the 1st defendant submitted that it could. According to the 1st defendant, if for instance the machine was all along not delivering oxygen to the patient then certainly it could result in the incident. Various witnesses indicated Equipment failure as a possible cause of the incident. The alarm on the machines are meant to work as an early warning to enable the team to arrest situations early. This duty of the machine cannot be shifted to humans especially in a five minute procedure. For instance, assuming the Cardiac Arrest was caused by vassal vagal manipulation of the nose which is one of the possible scenarios presented by the experts during the hearing. In this respect reference was made to DW2’s Testimony that:

“Sometimes the body has two responses. Sympathetic and autonomous nervous system, so that if you surgically manipulate the nose eyes and other organist may stimulate parasympathetic nervous system which may cause the slowing or stopping of the heart though it is rare. This could happen by itself. It is not very common but I have seen it happening.

509. It was submitted that in such a case, the machine ought to have picked it up at the very moment the asystole happened, alarmed and notified the team of the same. Relying on the anaesthetist’s periodic physical checking of the patient may not have picked that up in time. To the 1st defendant, the 3rd defendant would thus be squarely responsible. Additionally there was extensive testimony to the effect that a record or transcript of the machines would have greatly assisted the Court to determine what exactly happened. The only reason the 3rd Defendant would refuse to assist the court with this critical evidence is if the transcript itself would evidence the failure of the machine for instance in administering the volatile drugs or oxygen appropriately.

510. As regards causation and contribution, reference was made to the evidence tendered by DW1 concerning the point at which Brain injury may have occurred and the events that took place in ICU as follows:

“The instructions were to paralyse and ventilate the patient. This is critical for recovery of the patient having undergone cardiac arrest. The recovery in this case was with regard to the brain. At that moment it is not possible to tell the level or at all of the brain damage. The standard procedure when a person has suffered cardiac arrest. This is what I ordered. At that point the patient is not condemned to brain damage. After this procedure, full recovery is expected. I gave instructions through the ICU team. I ordered investigations to be done on a daily basis. If my instructions were not clear the doctor needs to seek clarity from me…My instructions were not followed to the letter. On Monday morning I found and was informed that the patient had been extubated by Dr Moniz during the night. This was contrary to my instructions. I was informed Dr Moniz had been called in on request of the parents. This means sedation had been stopped and patient resumed ventilator on Sunday…I agree one of the dangers of early reversal is death.

511. Further there is the evidence of PW5 Prof. Amayo a neurologist that:

The manner of handling the patient in ICU may affect his mental fitness. It is difficult to say that the manner of handling the patient in ICU and theatre can affect the patient but by the time he left theatre the injury had occurred. The most important thing is how long he had cardiac arrest. It is hard to say with certainety the injury that occurred in theatre and the ICU. The damage depends on how long a person was under cardiac arrest and the age…Early reversal can cause further damage but depends on when.

512. According to the 1st defendant, the evidence here is to the effect that the 2nd and 3rd Plaintiffs took over control of the management of the patient in ICU and overrode the instructions of the 1st Defendant. It has not been contested by the Plaintiffs that it is difficult to tell whether the brain injury occurred in theatre or in ICU. Either way the testimony of DW2 was that full recovery was possible hence the reason sedation was so important. The sudden and early reversal was on the instructions of the 2nd and 3rd Plaintiffs.

513. The 1st defendant then posed the question as to how then are we to tell whether the said early reversal did not of itself cause the injury complained of? DW2 informed court of the difference between Brain Insult and Injury where Insult is where the brain has suffered trauma as a result of lack of oxygen and can fully recover if sedation is properly done and the brain allowed time to rest and recover without much activity. According to the 1st defendant, it would not be far fetched to opine that by overriding the 1st Defendants instructions, the Plaintiff’s may have contributed to, or wholly caused the injury. Further in light of the above it becomes difficult if not impossible to draw a line of causation without the risk of punishing an innocent party.

514. On quantum the 1st defendant associated with the submissions of the 3rd Defendant and had nothing further to add.

515. In conclusion, it was submitted submit that the incident that led to the brain injury of the 1st Plaintiff is truly unfortunate and regrettable. It is further regrettable that there still is no clarity on what exactly caused the incident. While the 1st defendant understood the Plaintiffs distress and the pain they have had to go through, it was its position that surgery and anaesthesia are dangerous processes and there is always a substantive risk involved hence the reason why the patient is informed of the attendant risk before the procedure and they are required to sign a consent that indicates that they have agreed to assume the risk involved. The consultants involved however cannot be subjected to punishment for every unfortunate incident unless their negligence is proven. He who alleges a malpractice must prove. The Plaintiffs have failed to prove the same against the 1st Defendant on the balance of Bolam’s test. It was therefore submitted that the case against the 1st Defendant should be dismissed with costs.

Second Defendant’sSubmissions

516. After setting out her version of the facts, it was submitted the Second Defendant’s position throughout has been that the incident did not arise as a consequence of any surgical error or negligence on her part. The First Defendant, as a consultant anaesthetist, is a professionally qualified medical practitioner and is fully and independently responsible to ensure that the patient is properly assessed and induced before surgery, maintained during surgery and safely reversed on completion of surgery.

517. According to the 2nd defendant, prior to the MPDB’s involvement in this case, to which we will turn to later under this head, the Hospital had launched its own investigation on the incident through its Standards, Audit and Ethics Committee (“the SAEC”). These investigations coincided with a request from the MPDB to the Hospital for its report on the incident following a complaint made by the Second and Third Plaintiffs.

518. According to the 2nd defendant, after interviewing the entire team present in theatre and ICU, deliberating over the incident over a period of several months, in September 2005, the SAEC concluded its investigations and found that the incident had resulted from “anaesthetic accident resulting from inadequacy of intra-operative physiological monitoring” in the following words:

“….. J suffered Anoxic Ischaemic Encephalopathy, an incident that was due to anaesthetic accident resulting from inadequacy of intra-operative physiological monitoring on the part of the practitioners concerned. That no evidence was established/adduced for equipment failure and the choice and use of anaesthetic medication and ventilation has been deemed appropriate and of the expected standard of practice, as was the surgical care provided.”

519. It was however submitted that the first sentence cited above does not accurately reflect the conclusions of the SAEC since the SAEC concluded that the events had resulted from “anaesthetic accident resulting from inadequacy of intra-operative physiological monitoring.” There is no mention of the words “on the part of the practitioners concerned” in these minutes. These latter words appear to have been unilaterally added to the content of these letters by Dr Cleopa Mailu. They do not appear in any of the SAEC minutes or records.

520. Accordingly, it was submitted that there is no factual basis for the laying of any criticism for “inadequacy of intra-operative physiological monitoring” at the door of the Second Defendant surgeon. The SAEC records show that in its deliberations it had enlisted the assistance of Dr C E Kabetu who confirmed that “Monitoring of the machines is the responsibility of the anaesthetist.” There is no mention whatsoever of this being attributable to any part of the surgeon’s responsibility.

521. According to the 2nd defendant, Dr Kabetu’s assertion appears to have satisfied the MPDB who, in their decision, agreed that it was the First Defendant who was primarily responsible for intraoperative physiological monitoring and that she (and no-one else) had failed in her duty to carry out this particular function. The only other adverse and baseless conclusion reached by the SAEC, in regard to the Second Defendant, appears in its minutes of 9th September 2005 under the heading “Surgeon” which states:-

“She was the overall team leader and therefore she’ll be reprimanded for not playing this role”.

522. However according to the 2nd defendant, there is absolutely no basis or ground for this finding. It is simply unsupported by any recommendation, witness statement or factual reasoning by SAEC in any of the documentation supplied to this court by the Hospital. It blatantly contradicts the content of Dr Mailu’s letters to the MPDB cited above concerning the standard of surgical care provided. At best, it appears merely to be an exculpatory statement by the Hospital in seeking to distance itself from any blame in the matter.

523. It was submitted that at trial, the Second Defendant testified that she was never informed about this adverse finding against her nor was she ever reprimanded, formally or otherwise, by the Hospital which assertion was not controverted. Norah Onyango (“DW 7”) gave evidence on behalf of the Hospital in place of Dr Cleopa Mailu who was unavailable to give evidence. She was the Director of Nursing Services. Her evidence was unsatisfactory but not entirely unexpected given that she was roped in at the last minute to cover for Dr Mailu’s absence and to effectively attempt to speak on his behalf. When asked whether the Second Defendant was reprimanded in line with the recommendation of the SAEC, she said she was not aware of this.

524. According to the 2nd defendant, even if the surgeon can be termed an overall “team leader”, this does not attract any special responsibility over and above that of any other medical service provider. Nor does any failure as a team leader ipso facto translate into legal liability for negligence in the absence of any evidence of causation. The most such an alleged failure could possibly amount to is a breach of professional conduct – which, in any event, is not a matter triable by this court but by the MPDB under its statutory duty to regulate the professional conduct of medical practitioners.

525. According to the 2nd defendant, the MPDB indeed took up this specific charge of failing to act as a team leader against the Second Defendant, at its inquiry, and dismissed it on the basis that, on the facts, such a charge was manifestly not proven. There is no additional evidence, or at least any evidence of any probative value, to suggest that the position before this court on this point is any different.

526. It was explained that the MPDB’s inquiry followed the SAEC investigation. It resulted from a formal complaint lodged by the Second Plaintiff by way of his letter of 18th March 2005 to the MPDB. Upon receiving this complaint, the MPDB set up, as it was statutorily obliged to do, a Preliminary Inquiry Committee (“the PIC”) to investigate the matter and to prepare a report for the benefit of the Board of the MPDB advising whether or not an inquiry should be held under the Medical Practitioners and Dentists Act (“the Act”). The PIC recommended an inquiry be convened the Board of the MPDB in this instance to determines charges laid against each of the three Defendants. The initiation of the inquiry was therefore a direct result of the complaint brought by J’s parents. The MPDB accordingly issued the 2nd defendant with a Notice of Inquiry dated 8th May 2007 raising allegations against her of professional misconduct framed under three charges. The said charges are paraphrased for ease of reference hereunder:-

i. Charge One – Failing to carry out a complete history and physical examination of JO which led to inappropriate treatment resulting in the current condition of the patient.

ii. Charge Two - Failing, after having committed to perform the operation on the said patient, to attend in time and setting in motion a chain of events that resulted into the patient’s current condition.

iii. Charge Three - Failing, as team leader, to take adequate steps to ensure that the surgical operation was carried out in accordance with known standards

527. The salient features of the MPDB proceedings, which were extensive and were heard over a four day period between 8th and 12th October 2007, were that:-

a) the Nairobi Hospital’s investigations and the SAEC’s records and minutes were placed before and fully considered by the Medical Board.

b) the MPDB, consisting of sixteen eminent medical practitioners and distinguished academics, conducted a detailed and exhaustive inquiry over a period of four days and reached a unanimous decision.

c) At the conclusion of the Plaintiffs’ evidence, the MPDB upheld the Second Defendant’s contention that there was no case for her to answer in respect of Charges One and Two and put her on her defence only in respect of Charge Three.

d) the MPDB found that the First Defendant was wholly liable for this incident and ordered that she be removed from the register and all licenses issued to her be revoked. She was suspended for a period of 36 months and ordered to undergo remedial training.

e) The Second Defendant was exonerated from the single remaining charge against her. She was found to be not responsible for the brain damage suffered by J either in her role as the surgeon or as the “team leader” during the procedure.

f) The Third Defendant was also cleared from liability for this incident although it was found liable under a separate charge for improper management in certain aspects of J’s post-surgical care. This issue was, and is, of no relevance to the case brought against the Second Defendant either in the MPDB proceedings or in this suit.

528. It was therefore noted that the single remaining charge against the Second Defendant that she was put on her defence at the inquiry (which is relevant to these proceedings) was failing, as team leader, to take adequate steps to ensure that the surgical operation was carried out in accordance with known standards and in determining Charge Three, the MPDB relied heavily on the testimony of Professor Asad Raja, the Chair of Surgery at Aga Khan University Hospital, so far as the surgical aspects of this case were concerned and, in particular, the charge of failure as a team leader by the Second Defendant and delivered itself as follows:

“Professor Raja, Chair of Surgery at Aga Khan University Hospital, was called as a witness by (Dr Olende) and shared his opinion on what the role of a surgeon vis a vis an anaesthetist is. In his opinion (Dr Olende) did not fail to ensure that the operation was carried out according to known standards as she chose an adequate facility and enlisted the services of a qualified professional with whom she had worked with before in her work in more complex procedures.

“In determining this charge, we examine the role of oversight responsibility. To what extent should a professional interfere with another? We all know that in operations a surgeon waits for the go ahead from the anaesthetist. The second issue is whether Dr Olende was aware that Dr Okutoyi had switched off the machine or indeed if she overheard the conversation between Mr Mueke and the Second Respondent if indeed we are to believe the former’s version of the events. We give Dr Olende the benefit of the doubt, in our view it is unlikely that she would have ignored such a conversation or continued with the operation. Thirdly we note that the Third Respondent reprimanded the First Respondent. Are we bound by that decision to find her guilty of infamous or disgraceful conduct?

In our view we find the facts proved are insufficient to support a finding of infamous or disgraceful conduct. Dr Olende is not guilty of alleged charge.”

529. So far as the First Defendant was concerned, she was found guilty of the following three charges brought against her:-

a) Charge One – Failing to carry out a complete history and physical examination of JO which led to inappropriate treatment resulting in the current condition of the patient.

b) Charge Two - Failing to observe reasonable intra-operative care of the patient including observance of the equipment thereby endangering the patient’s life.

c) Charge Three – Failing to observe reasonable care and skill.

530. It was submitted that the MPDB’s position, in terms of its appreciation of the duties and responsibilities of the team in theatre, was that the anaesthetist was primarily responsible for the safety, maintenance, and welfare of the patient prior, during and immediately after the surgical procedure. It is submitted that this is the correct approach for this court to adopt noting that there is ample authority from across various jurisdictions to justify it.

531. As regards the key features of the expert evidence given at trial it was submitted that the Second Plaintiff (PW1), a Consultant Radiologist and the father of J’s testimony was mainly devoted to his perception of what he thought went on in theatre on the day of the incident. This portion of his testimony is irrelevant, inadmissible and of no probative value. He was not present in theatre on the day and could not possibly speak firsthand about such matters as he purported to do. Nor, given his relationship with J, can his opinion on the practice of surgery be possibly be given any value or weight as an expert.

532. According to the 2nd defendant, the only expert evidence relied on by the Plaintiffs’ in support of their case was the evidence of Dr Khainga (PW 8), a Plastic and Reconstructive Surgeon which sets out, in purely general terms, his opinion of the duties of a surgeon as a team leader. He accepted in court that he “was told to give a report of what happens when one is preparing a patient for surgery and that he had only made a “professional statement” and “was not shown anything about what happened in the theatre.” In short, other than his general observations, his evidence is simply not competent or specific enough to deal with the particular issues of negligence alleged against the Second Defendant in this case.

533. However, even the general observations on the role of a surgeon made by Dr Khainga in his witness statement are not borne out by the evidence he gave in court. In his witness statement, he states:-

“The surgeon as the primary health care giver to the patient is the team leader (Lead doctor). He/she has to evaluate and monitor the patient prior to, during and after operation. He/she has the responsibility to coordinate the happenings in theatre including the actions by the support staff like nurses and technicians in such a way as to ensure a safe and successful outcome for the patient.”

534. In his oral testimony, these assertions are completely contradicted. Instead of pointing to the surgeon’s duty to monitor the patient, Dr Khainga states:

“Surgery is the responsibility of the surgeon while monitoring and reversal are the responsibilities of the anaesthetist though it is a team work.”

535. And later, his final words are (p. 136 of the proceedings):-

“Although the surgeon is the team leader he delegates duties to equally competent staff “

536. Dr Khainga readily accepted, as correct, Professor Raja’s views set out in pages 132-133 of Plaintiff’s Bundle B, the key part of which totally undermines his witness statement:-

“Now, as a primary care giver, yes it is my patient, but as surgeon, there are lots of surgeons sitting around, you will all know and realize that the patient is wheeled into theatre, you identify the patient, you say hallo, hi to the patient and you hand it over to the anaesthetist. Because he or she is the expert of that field and is a licensed, credentialed, privileged, whatever you call it or certified anaesthetist and has his own, as far as that specialty is concerned, they are the master of the specialty. I am not the master of anaesthesia or of that specialty, so I hand over the patient to the anaesthetist and expect the anaesthetist will do the needful, which is the standard care. I don’t check how many drugs they gave, how much sedation do they give, how much paralysis do they give, and so it is an understood norm that you select a good anaesthetist and you leave it into their hand. Still, I am responsible for what happens to the patient. But I walk out of the theatre to scrub myself and if it is the first scrub, I might be scrubbing for 3-5 minutes by the time I come back, things could go wrong. But it is in the hands of another care giver who is equally competent and equally responsible member of the team as I say, medicine these days is multi-disciplinary and everybody has assigned roles and responsibilities.”

537. In the 2nd defendant’s submissions, when considering the sum total of Dr Khainga’s evidence, not only does his testimony fail to come up to proof, but its probative value in the context of the specific allegations of negligence made in this case against the Second Defendant, is nil.

538. As regards the evidence of Professor Oburra (DW 4) who testified as the Second Defendant’s expert, it was submitted that his witness statement and oral testimony are reflective of three important considerations in contrast to the evidence of Dr Khainga. First, and foremost, Professor Oburra is an ENT specialist, probably the foremost surgeon in that field in Kenya. Second, unlike Dr Khainga, Professor Oburra actually had the opportunity to study the Hospital’s medical records and statements of the parties to this suit. Third, his oral testimony was entirely consistent with his written statement on the question of separate responsibilities. At page 2 of his witness statement, Professor Oburra points out that in ENT surgery, the anaesthetist has the prerogative of the airway and can even ask the surgeon to move away to secure it. On the issue of monitoring patients, he has this to say:-

“It must however be realised that monitoring of the patient is first and foremost the responsibility of the consultant anaesthetist and his assistants and the surgeon cannot perform his task if his attention is riveted at all times on monitoring the patient...It is erroneous to generalise that the surgeon and the anaesthetist share any imagined anaesthetic responsibility in the event of a mishap...”

539. It was submitted that in his oral evidence Professor Oburra dealt comprehensively with the nature of the procedure undertaken in a case like this. He was also referred to the proceedings before the MPDB (which he had not seen previously) and shared the views of Professor Raja on the separate responsibilities of members of a theatre team as follows:-

“The surgeon is the co-ordinator. He makes sure the patient knows what is going (on) and what will happen in theatre but does not take professional responsibility of his professional colleagues.”

540. One other matter that Professor Oburra raised in his evidence was the integrity and service record of the Hospital monitoring machines and, whether, after the incident, they had been isolated and checked by uninterested parties. He also questioned the absence of a print out which would have shed light on J’s biochemistry and elaborated on this in his oral evidence and questioned whether it should have continued being used in later procedures before it had been checked out properly. The issue of the checks and the print-outs were covered by the SAEC investigations. Dr Kabetu had pointed out that the machine had a memory and made a specific recommendation to the SAEC to check the print-out. There is no evidence that this was ever done. It has to be asked why there was no follow-up by the Hospital or the SAEC to check on these readings? Dr Mailu, the CEO of the Hospital, claimed when pressed in the MPDB proceedings that this administrative exercise did not form part of his responsibility and he was not aware whether or not any check was made on the machines. Yet he actually sat on the SAEC and was the CEO of the Hospital. He chose not to give evidence in the trial either. This is most unsatisfactory. Both the MPDB and this court have been deprived of evidence that would undoubtedly have been crucial.

541. In his witness statement, Dr Moniz giving his opinion as an expert states that the damage to J could have been prevented by:-

(a) Closer Monitoring

(b) Lower dosage of halothane

(c) Use of Atropine at induction of anaesthesia

542. The evidence he gave at the MPDB proceedings also raised the issue of high dose of halothane and in his oral evidence in court, Dr Moniz was at pains to distinguish between the responsibilities of the surgeon and the anaesthetist when asked what had gone wrong:-

“I have given those reasons why something can have gone wrong. They are all Anaesthetic issues. Nasal reduction is 7-10 minutes. In nasal reduction the surgeon is looking into the nose. I did not say the surgeon should be responsible for looking at the monitor but if there is an alarm he should hear (unless there is bleeding?). It is not the duty of surgeon to ensure patient is hooked up but he gives the anaesthetist time to properly hook up the monitor. Unless the surgeon hurries up the anaesthetist but normally the surgeon waits for go ahead from the anaesthetist.”

543. Dr Mark Gachii, a consultant anaesthetist retained as the First Defendant’s expert gave a helpful account of an anaesthetist’s duty in theatre as follows:-

“The Surgeon could not perform the role of the anaesthetist. Before an operation my role includes examination to suitability of patient for the procedure. If not suitable you can stop the procedure. It is my role to determine drugs and agents to be used. What the surgeon does is tell you his requirements for example if he requires patient to be absolutely still or that the pressure be lowered but you decide how to put the patient to sleep though you can tell him what you intend to do. That process includes the dosage of drugs you want to use. It means that I am independent of the surgeon…My primary role is to ensure the patient is alive during the procedure. So in case of risk I would take certain steps including stopping the procedure. If the risk is arrested the surgeon would continue with the procedure. Depending on how serious the problem the procedure would be stopped. So long as the issue is not surgical the sustenance of the patient would be my responsibility.”

544. It was submitted that one matter that did trouble all the experts, including the SAEC and the MPDB, is whether the alarm did go off and if not why not? The only people who would know were those present in theatre. All five that were present gave evidence. Save for David Mueke, all of them stated that they heard no alarm going off. David Mueke testified that he did hear an alarm and alerted the First Defendant who apparently ignored him and reportedly said “the machine is faulty” and switched the machine off. This account is vehemently denied by the First Defendant. Mr Mueke admitted he did not alert anyone else in theatre nor could he explain why the others in theatre did not hear the alarm or, if they did, why they did nothing about it. He had no real explanation either as to why, having heard the alarm go off when the pulse oximeter read 89% he did not keep a regular watch on the ECG monitor - except after the procedure had been completed when he claimed he saw a reading of 35%. Mr Mueke’s evidence was most unsatisfactory and should be discounted totally. It was discounted by both the SAEC and the MPDB in their deliberations.

545. According to the 2nd defendant, when the totality of all expert evidence is taken into account together with the MPDB and SAEC deliberations, it is clear that the cause of the brain damage to J (or what possibly contributed to the severity of it) can be narrowed down to one or more of the following:-

(a) The anaesthetist’s or theatre technician’s failure to monitor J properly or at all during the procedure.

(b) The monitors or the equipment in theatre not working properly or at all during the procedure.

(c) Anaesthesia/drugs improperly administered or not administered at all

(d) Post-operative management in ICU. The First Defendant stated she gave specific instructions on sedating and paralysing J for 72 hours. These instructions were countermanded by Dr Moniz and J was extubated after 48 hours. It is questionable whether this had an adverse impact on J’s recovery.

546. Whatever the cause, it is plain that none of these matters can possibly be attributable to any act or omission by the surgeon, namely, the Second Defendant.

547. According to the 2nd defendant, the nub of the Plaintiffs case against the 2nd Defendant is set out under the head “Particulars of Negligence of the Defendants and/or their Employees, servants, consultants and Agents” under Paragraph 15 (a), (f), (g) and (h) on page 3 of the Plaint. Although the Plaintiffs may seek to argue that there were other general grounds of negligence listed under Paragraph 15 that applied to the Second Defendant, a perusal will show that each and every one of those grounds are, in fact, subsumed under the specific particulars spelt out in Paragraph 15 (a), (f), (g) and (h) of the Plaint. The particulars pleaded in Paragraph 15 (a), (f), (g) and (h) are a virtual verbatim repetition of the three charges set out in paragraph 3. 15 above brought against the Second Defendant by the MPDB. It was however submitted that though the plaintiffs attempted to expand the said particulars to encompass the addition of the words “as a team leader” in paragraph 40 of the Plaintiffs’ submissions, it does not appear in paragraph 15 (g) as pleaded or in any of the other 22 particulars pleaded under paragraph 15. It was therefore submitted that by the addition of the words “as a team leader” the Plaintiffs seek to extend their pleaded particulars to encompass an unpleaded duty on the part of the Second Defendant, namely, to ensure that adequate steps were taken not only by her in her own capacity as a surgeon (as specifically pleaded in paragraph 15 (g)) but also as a team leader to take adequate steps to ensure that the procedure carried out by the other members of the theatre team was also “in accordance with the known standard”.

548. It was submitted that this court has an overriding duty to limit its determination to the issues placed before it by the parties. The oft repeated mantra that “parties are bound by their pleadings” is well settled in our law and reference was made to the decision of the Court of Appeal in Independent Electoral and Boundaries Commission & anr vs. Stephen Mutinda Mule & 3 others [2014] eKLRquoted with approvalan excerpt from an article by Sir Jack J entitled “The Present Importance of Pleadings” and Bake ‘N’ Bite Limited vs. Rachel Nungare & 16 Others [2015] Eklr.

549. Accordingly, the short point here is that there has been no evidence adduced before this court to show that the surgical procedure carried out on J by the Second Defendant, in her capacity as the retained surgeon, was either negligent or of an unacceptable standard. In these circumstances, based on the limitation that the Plaintiffs have placed upon themselves in their pleaded Plaint, the Second Defendant has no real case to answer.

550. However in the event this court does not accept that the Plaintiffs have departed from their pleaded case (or that any such departure is immaterial), it is important to note that by the incorporation of the words “known standard” in their pleaded case against the Second Defendant the Plaintiffs seek to invite this court to determine not only an issue of conduct in respect of the Second Defendant (which has already been determined by the MPDB) but also determine what that standard is. The fact that the MPDB dismissed each and every one of the three charges brought by it against the Second Defendant is a powerful message to this court. Courts, the world over, have recognised the bodies such as the MPDB are particularly and uniquely well qualified, by virtue of their calling and experience, to determine the issue of responsibility for an incident such as in this case. Reference was made to Evans vs. General Medical Council, where the Board of the Privy Council stressed the importance of the findings of a professional body such as the General Medical Council to a court when considering cases of professional conduct and Atsango Chesoni vs. David Mortons Silverstein.

551. But even assuming that the court feels comfortable in determining this professional standard, it is submitted that the Plaintiffs have failed to show that there was any breach of that standard or that, even if there was, there was no direct causative link between any breach of that standard which resulted in the damage that occurred. While it is not disputed that the Second Defendant owed J a duty of care both in contract and in tort, the basis of a finding of negligence for a breach of the duty of care (as distinct from the standard of care) in medical negligence cases is essentially no different really from cases involving negligence in any other case. It essentially operates under a fault liability system which is broken down into 3 segments – all of which the Plaintiffs have to prove under the line of authority commenced by the celebrated Donohue v Stevenson case which scarcely needs repeating. To succeed in a case for damages in negligence it is incumbent upon the Plaintiffs to prove three points:-

a) Whether the doctor owed the patient a duty of care?

b) Whether the doctor breached that duty by failing to meet the standard of care required in law.

c) Whether the doctor’s breach of that duty caused the patient to suffer injury or harm for which compensation is recoverable at law.

552. According to the 2nd defendant, in the case of Hellen Kiramana vs. PCEA Kikuyu Hospital (2016) eKLR, a case also relied on by the Plaintiffs the court dealt with a wide array of matters. Insofar as the doctor’s duty of care to his patient are concerned, the court adopted the findings made by the Supreme Court of India in Laxman Balkrishna Joshi vs. Trimbak Bapu Godbole and Anr which stated that such duties to patients were threefold:-

“a) A duty of care in deciding whether to undertake the case;

b) A duty of care in deciding what treatment to give; and

c) A duty of care in administering the treatment.”

553. The court in the same case also spoke of the standard of care and recited the findings Pope John Paul’s Hospital & Another vs. Baby Kasozi [1974] EA 221in which the East African Court of Appeal dealt with this aspect in some depth. The court in the same case cited the well-known words of McNair, J in Bolam vs. Friern Hospital Management Committee [1957] 1 W.L.R. 582, 587.

554. According to the 2nd defendant, it is well settled as a matter of law that the fact that something has gone wrong during a surgical procedure is not, of itself, indicative of negligence. The risks of undergoing surgery, however small, are nevertheless ever present and, at times, all pervasive and reference was made to Lord Diplock’s decision in Sidaway vs. Bethlem Royal Hospital[1985] 1 ALL ER 643.

555. It was therefore submitted that it is trite law that to prove negligence the Plaintiff must establish that the act or omission complained off is the direct cause of the injury suffered by him. In other words, he must prove a causal nexus between the negligent act or omission and the injury suffered.

556. This is explained clearly in Halsbury’s Laws of England 4th Ed. Vol. 33 at page 476 paragraph 662 and Clerk & Lindsell on Torts, 20th Ed at page 55.

557. In this case it was submitted that there is not one iota of evidence to suggest that there was any connection between any alleged breach of duty of care by the Second Defendant and the resultant injury suffered by J. According to the 2nd defendant, the essence of the Plaintiffs’ case against the Second Defendant is summarised between pages 38 – 47 of their submissions. It is unfortunate that the bulk of the justification of their case is based on lifting selective, self-serving and incomplete extracts of testimony given in the SAEC proceedings, the MPDB proceedings (particularly in the case of Professor Raja) and the oral and written testimony of witnesses in court (Professor Oburra, Dr Moniz and Dr Khainga). This can only be characterised as a misleading attempt to bolster the Plaintiffs’ case against the Second Defendant which, from the outset, had no plausible factual or legal basis whatsoever.

558. The 2nd defendant then proceeded to discount the allegations that the Second Defendant failed to specify J’s name and the procedure when making a booking at the Hospital’s Day Surgery Unit (“DSU”) and that lateness was evidence of “casualness”. In respect of the latter, reliance was placed on the evidence given by Professor Raja at the MPDB proceedings on the question of (i) lateness and (ii) postponement due to lateness.

559. According to the 2nd defendant, the criticism about the Second Defendant’s expectation of seeing Dr Moniz in theatre is unfair, unjustified and incongruous. It was Dr Moniz who did not even bother to contact the Second Respondent concerning his apparent inability to honour his commitment to take on this case. The evidence given by him shows that he himself was not in the Hospital at 9. 30 a.m. either. The purpose of his call appears to have been to simply confirm that because the other parties had not arrived, he could justify taking on a (presumably more lucrative?) emergency assignment. It was therefore submitted that there is no logical connection between the events complained of and the alleged failure by the Second Respondent to act as “team leader”. These incidents all occurred outside theatre and have nothing to do with “team leadership” during the procedure that forms the subject matter of these proceedings. The assertion that the incident would not have occurred had the preferred anaesthetist been present is totally speculative and with respect, delusional. It is unsupported by any evidence whatsoever. Other than the Plaintiffs’ wholly subjective criticism on lateness, there is no evidence to suggest any causal link, between the lateness of the Second Defendant and the incident which occurred, to support a finding of negligence.

560. According to the 2nd defendant, the MPDB considered this accusation when considering Charge No 2 levelled against the Second Defendant. It dismissed the same without even putting the Second Defendant on her defence. There is nothing in the evidence produced by the Plaintiffs in this trial to remotely suggest that the Plaintiffs’ case on this point is any different from that put before the MPDB.

561. After discounting the other allegations, it was submitted with respect to the issue of the team leader that the preponderance of medical opinion (including that of the MPDB) was that there could be no liability on the part of a surgeon for any act or omission of an anaesthetist. It would appear from the Plaintiffs’ own submissions that they were on weak ground if they were to seek establishing liability attaching personally to the Second Defendant. It is for this reason that the Plaintiffs have converted their case against the Second Defendant, seeking to find her liable on the sole ground that, as a surgeon, she was ultimately responsible for whatever went on in theatre, irrespective of whether she may or may not herself not have been negligent, simply because she was a “team leader”.

562. According to the 2nd defendant, this line of reasoning is akin to the “Captain of the Ship Doctrine”. The Captain of the Ship Doctrine simply means that a surgeon’s responsibility being likened to the captain of a ship to whom all on board a ship report to. The captain has control over all on board the ship and he is deemed to personally assume responsibility for any acts or omission by the crew of the ship. Liability is imposed by virtue of the surgeon’s status, and it can be imposed without actually showing that the surgeon is in control. – see Thomas vs Raleigh General Hospital 358 SE 2d 222 [WVa 1987] (No. 113 – 117 of LOA) and Black’s Law Dictionary at page 224.

563. It was submitted that the doctrine was particularly prevalent in America where surgeons often operated with unqualified personnel and a legal principle was developed to hold the surgeon liable for the acts and omissions of the hospital team so that the injured claimant was not left without redress. However, it is generally accepted that the doctrine has no place in modern medical malpractice law particularly in circumstances where surgery is carried out by a team of qualified specialists each having a particular speciality. Professor Raja alluded to this in his evidence before the MPDB in which he stated at page 184 of Plaintiff’s Volume B:-

“Medicine today is a team work, it cannot be an individual practice. Gone are the days when people will say that you are the captain of the ship, you are the general of the army, yes, fine, you are the team leader, you have to call the shots, but then other roles and responsibilities are there and people have to deliver on that.”

564. According to the 2nd defendant, the doctrine of the Captain of the Ship has been a subject of various court decisions in America where it is now evident that with the repeal of the immunity granted to medical institutions and subsequent developments in medical practice (where we now have consultants specialised in various areas of medical practice) it has been abandoned and is no longer applicable. Accordingly, reference was made to the leading American case on the point of Dohr vs. Smith 104 So. 2d 29 (Fla. 1958).

565. It was therefore submitted that on the facts, the Second Defendant had no control over the First Defendant or, for that matter, the Hospital’s employees. The Second Defendant cannot be held vicariously liable for their acts or omissions. In this regard reference was made to the case of Calhaem, R (on the application of) vs. The General Medical Council [2007] EWHC 260.

566. It was therefore contended that it is quite clear that the judge was in no doubt where the responsibility lay for the decision as to whether or not a patient should proceed to undergo surgery. Despite the fact that, on the peculiar facts of that case, the decision to proceed with surgery in Calhaem was a joint one (as distinct from the facts in this case), the surgeon was not implicated in any way for this responsibility by the court.

567. As regards quantum of damages, it was submitted that in awarding damages, the Courts have developed a degree of uniformity with the best guide being that recent awards in comparable cases in the local courts be considered and that the principles applicable to awards for damages in personal injury cases was perhaps best analysed by Potter, JA in Tayab vs. Kinanu (1983) eKLR where he commences with West (H) & Son Limited vs. Shephard (1964) AC 326:

568. He then went on to consider Lord Denning’s dictum in Lim Poh Choo vs. Camden and Islington Area Health Authority (1979) 1 All ER 332 at 339 and Kigaragari vs. Agripina Mary Aya (1985).

569. As regards 1st Plaintiff’s claim for general damages for pain and suffering, and future pain and suffering, the 2nd defendant relied on Kidake vs Siambi (HC Civil Suit 557 of 2005) where this Court the award for general damages for pain and suffering in that case was Kshs 3. 5 million. That case reviewed several previous authorities for severe injuries in making its award. In addition, consideration ought to be given to the decision in Gerald Musungu Otwani vs. Kulsum Alibhai & Another [2006] eKLR where following a road accident the Plaintiff suffered severe head injuries with brain damage, multiple facial, arm and leg bruises and a scalp laceration. He was admitted to hospital in a state of coma, epileptic fitting and only responded to painful stimulation. As he required life support he was admitted in ICU for 20 days after which he was transferred to HDU for another 5 days. The injury to the eyen resulted in a diagnosis of right optic atrophy. The nerve sending messages to the brain was damaged and in addition to facial palsy he also had defective speech. He was mentally retarded and had to be sent to a special school. Maraga, J (as he then was) made an award for general damages of Kshs 2. 5 million in November 2006.

570. As for the claim for future medical care and treatment it was submitted that, firstly, claims for future medical care ought to be regarded as special damages and not general damages. To buttress this argument, the court was invited the Court to consider the decision in Zipporah Nangila vs. Eldoret Express Limited & 2 Others (2016), where the Court, relied on the Court of Appeal’s reasoning in Kenya Bus Limited vs. Gituma (2004) EA 91.

571. According to the 2nd defendant, although the Plaintiffs plead damages for future medical care, the same was not strictly proved during the proceedings. The 1st Plaintiff seeks compensation for the costs of a minder at the costs of Kshs. 10,000. 00 which amount was certainly not proven. Payment slips were not produced at any time during the trial, nor was any other evidence led on this issue. Proving special damages requires that proof is adduced in particularity through documentary evidence. As no evidence in support of the need to maintain a minder was produced, that argument must fail. In the Kidake case cited above, the Court awarded damages for minder costs upon the Plaintiffs producing both medical reports and receipts (emphasis ours) to prove previous payment of those costs. The Plaintiffs’ argument for being paid costs of J’s future psychiatric and neurological reviews also cannot stand as the same are unsubstantiated and not corroborated by any evidence. The Plaintiffs only provided receipts for occupational therapy costs. In this regard reliance was placed on Shabani vs. Nairobi City Council 1985 1 KAR 683where the court cited with approval what Lord Goddard CJ said inBonham-Carter vs. Hyde Park Hotel Ltd [1948] 64 TLR 177:

572. As for the claim for damages for loss of future earnings or earning capacity, it was submitted that this purely speculative, and for this reason, impossible to determine especially using the multiplier principle. At the time of the incident, J was still a student, who had yet to complete high school. His career path could not be ascertained at that age and reference was made to Oyugi Judith & Another vs. Fredrick Odhiambo Ongong & 3 Others (2014) eKLRwhere the Court of Appeal in the above case awarded the Plaintiff’s estate Kshs. 120,000. 00 in 2014 after the Plaintiff’s death in an accident. The Court considered its inability to accurately indicate what profession one would finally practise, if at all he would have survived to adulthood. Even if J had joined university, it would still remain uncertain whether or not he would complete his studies and even if we did what his future career prospects would be. Similarly, the 2nd defendant relied on Idi Ayub Omari Shabani & Another vs. City Council of Nairobi & Another Civil Appeal No. 52 of 1984 [1985] 1 KAR 681.

573. It was submitted that the general rule is that the Plaintiff has the onus to specifically plead and strictly prove any special damages claimed in an action against a defendant and the 2nd defendant cited Hahn v Singh[1985]eKLRandShabani vs. Nairobi City Council (1985).

574. According to the 2nd defendant, merely stating figures without proving them should not lure the Court into awarding any special damages. The court is asked to take cognizance that the Plaintiffs failed to produce any evidence to support the claims made for special damages, which were pleaded at Kshs. 1,071,080. 00 Merely quoting figures in pleadings does not prove them.

575. The 2nd defendant however did not challenge paragraphs (a) to (d) of the Particulars of Special Damages subject to liability. However she challenged paragraphs (e) and (f) of the Particulars of Special Damages, which relate to legal costs allegedly incurred by the Plaintiffs in the MPDB proceedings as not agreed. These are irrecoverable on the grounds that they are neither claimable nor were they ever proven in any event. Most importantly, even if they were claimable, the Plaintiffs cannot possibly seek to recover such costs from the Second Defendant in respect of a complaint made against her that was dismissed in its entirety by the MPDB. Similarly it was submitted that paragraph (g) concerning the cost of a minder between 01. 03. 2005 to 31. 01. 2008 was not proven and is therefore not agreed.

576. With respect to the Second and Third Plaintiffs damages for ‘grievous’ shock, it was submitted that firstly, there is no such injury known in law as ‘grievous shock’ upon which a court can award damages. Secondly, damages for nervous shock might have been claimable under the principle set out in McLoughlin -vs- O’Brien (1982) 2 All ER 298. Okwengu, J (as she then was) adopted the said principle in Jeremiah Wachira Ichaura & 8 Others vs. Nation Media Group (2000) eKLR.

577. It was however submitted that no evidence was adduced to show that the two Plaintiffs were either traumatised or psychologically and emotionally distressed. None of them produced any medical reports indicating they had sought medical attention for nervous shock. In the Jeremiah case, the Court only awarded damages for nervous shock upon the Plaintiffs adducing medical reports as evidence. It was therefore submitted that no claim for damages can lie in this instance whether for “grievous” or nervous shock.

578. In conclusion, the 2nd defendant submitted that it is clear from the evidence that has been adduced at court that the adverse incident occasioning the unfortunate and regrettable injury to J is the result of an anaesthetic error. No other plausible explanation has been given for this occurrence. The MPDB, a statutory tribunal was clear in its findings that no blame could be attached to the Second Defendant, whether in her capacity as a surgeon or as a team leader. No evidence has been shown or led in this trial to suggest that the evidential or legal position was any different to that which was canvassed and deliberated by the MPDB. As a matter of law, it is clear that the Second Defendant cannot be liable, either vicariously or otherwise, for the acts or omissions of a fellow professional or, for that matter, any employee of a hospital. The above conclusions were patently obvious to the Plaintiffs from the outset and there was no factual or legal basis for the Plaintiffs to have brought these proceedings against the Second Defendant. The Second Defendant’s advocates, in their letter dated 26th February 2018 had already pointed out in response to the Plaintiffs’ (then) advocate’s letter of demand dated 28th January 2008 that the institution of any suit against the Second Defendant would be wholly inappropriate, unjustified and suggestive of a witch-hunt and, further that any such suit would be vigorously defended and that her rights to seek an order for indemnity costs was reserved.

579. According to the 2nd defendant, an order for indemnity costs is not unusual in circumstances such as this and the 2nd defendant cited the decision of Amin, J in Joseph King’ori Ndung’u vs. Koskei Joel Kipkurui & Others [2017] eKLR and prayed that the entire suit against her be dismissed with costs on an indemnity basis.

3rd Defendant’s Submissions

580. It was submitted after giving the factual background that following the incident, the 3rd defendant instructed its Standards and Ethics Committee (“the Committee”) to commence investigations into the matter. The SAEC concluded its investigations and on 21st September 2005 held a conclusive meeting with the 2nd and 3rd plaintiffs whereupon it presented its findings. Being dissatisfied with the Committee’s findings, the plaintiff’s lodged a complaint before the Medical Practitioners and Dentists Board (“the Board”) and enjoined all the defendants herein as respondents and on 29th November 2007, the Board delivered its ruling. With regards to the 3rd defendant, the Board held that the facts as proved were insufficient to prove the charge against it.

581. According to the 3rd Defendant, the issues for determination as far as the case against it is concerned are:

a)Whether the 3rd defendant failed to provide appropriate functional equipment in theatre;

b)Whether the 3rd defendant retained and/or maintained in its employ incompetent professionals and non-professionals;

c)Whether the 3rd defendant had inadequate systems of work and was understaffed;

d)Whether the 3rd defendant is entitled to recover the pending hospital bills from the patients;

e)Whether the 3rd defendant breached its contractual obligations it owed to the plaintiffs;

f)Whether the defendant acted negligently or recklessly in its handling of the 1st plaintiff;

g)Whether the plaintiffs are entitled to the reliefs sought as against the 3rd defendant; and

h)Who should bear the costs of this suit.

582. According to the 3rd defendant, the burden of proof in this case vests on the plaintiffs and the standard of such proof is on a balance of probability as was held in Zakayo Wanzala Makomere vs. West Kenya Sugar Co. Ltd (2013) eKLR.

583. It was the 3rd defendant’s submissions that the plaintiffs have failed to discharge this burden to the required standards in their case against it.

584. As regards the functional equipment in theatre, it was submitted that whereas in paragraph 15 (i) of the plaint, the plaintiffs have pleaded that the 3rd defendant failed to provide appropriate functional equipment in the theatre, this averment is not particularized. However, at paragraph 43 of the plaintiffs’ submissions, it is submitted that the machines of the 3rd defendant could have been faulty because the Oxicarp (pulse oximeter) allegedly alarmed but the ECG machine did not alarm.

585. The 3rd defendant submitted that while at its Hospital, the 1st Plaintiff was placed on two independent monitors; the Oxicarp (pulse oximeter) that monitors oxygen and carbon dioxide concentration of a patient and the ECG (Electro Cardiograph) machine that records the activity of the heart while at rest; and that both machines were fully functional. It was submitted that during the course of the hearing in court, several witnesses adduced evidence proving that both the machines were functional. Upon cross examination of the 1st defendant by the plaintiffs’ advocate, she confirmed that the Oxicarp machine was functional. She stated:

“It is my testimony that the machine was working….we expect beeping sounds which correlates to heartbeat and pulse of the patient. I confirm that the beep sound came along with the pulse oximeter and a heartbeat was heard.”

586. With regards to the ECG machine, the 1st defendant’s testified before the Medical Practitioners and Dentists Board and affirmed that the ECG machine was functional. She stated, “The ECG then showed asystole”

587. According to the 3rd defendant, from the minutes of the SAEC Meeting of 10th June 2005, DW6, Sister Catherine Kibuchi, the scrub nurse at the 3rd defendant’s Hospital, explained that the 1st plaintiff’s procedure was the third one that morning and that the same machines had been used in the two previous cases. It was her testimony that the machines were okay and intact. She further testified that the alarm of the Oxicarp monitor went on immediately the procedure was started. DW6 also testified to hearing David Mueke (DW5) tell the anaesthetist that the alarm had gone on. In the same meeting, the SAEC concluded that a surgeon/anaesthetist can over-ride the monitor and this conclusion is in support of David Mueke’s (DW5) testimony before the SAEC and during the hearing in court whereupon he reiterated that the Oxicarp machine was functional and that when it detected the oxygen reading to be at 90%, DW5 informed the 1st defendant who overrode the system by switching it off. The 3rd respondent submitted that the end result of the surgery confirms the testimony of DW6 and DW5 that the monitors did alarm and that the 1st defendant switched them off leading to the 1st plaintiff developing hypoxic brain injury.

588. Further, upon cross examination of the 2nd defendant (Dr Chimmy Olende) by the then advocate of the plaintiffs before the Medical Practitioners and Dentists Board, she stated that:

“Yes I have to say that at the beginning of the procedure the monitors were not beeping loudly, no, but they were hooked up and they were working”

589. During the same Board proceedings, Prof. Raja opined that:

“That is the standard thing which everybody who has been in theatre will know that that is a standard thing, that the technicians start putting up the electrodes, the blood pressure cuff is put on, and the pulse oximeter is put on. And then things are looked at. And then the anaesthetist will fill up the drugs and….so from there then only you will know whether the patient’s machine is working or not. Because it should pick up normal saturations. Isn’t that the normal routine? So you know, and if either the machine is faulty or the patient is already cyanosed or whatever if it is not showing appropriate readings, so you will immediately know whether your machine is working or not at that particular time………….so before you even start, you have to have a baseline record of things which will tell you the machines are working”

590. The 3rd defendant submitted that if the 2nd defendant’s testimony is considered alongside with Prof. Raja’s, it is clear that before the subject surgical procedure commenced, all the machines were confirmed to be working. This position is further backed by the testimony of the 2nd defendant who confirmed that the machines were functional at the start of the procedure. The 3rd defendant submitted that other than making bare allegations, the plaintiffs have failed to prove that the 1st plaintiff was not hooked to the ECG monitor. The plaintiffs have only alleged that because DW5, DW7 and the 1st defendant all laid claim to having placed the dots used as electrodes to the patient, they then must have lied thus implying that the patient was never hooked to the monitor. According to the 3rd defendant, DW7 Rosemary Kaviti testified before the court and she stated that she helped DW5 David Mueke fix the dots. It makes sense that three people would all lay claim to fixing the dots as they work in unison at the start of surgery to ensure all the monitors are functional.

591. With regards to the allegation of incompetent staff, it was submitted that the 3rd defendant’s employees effectively discharged their duties. The duty of the technician was to assist the anaesthetist, a job which he effectively performed including bringing to the attention of the 1st defendant the minute the alarms from the Oxicarp monitor went off. DW6, the scrub nurse’s duty consisted of assisting the surgeon in the surgical procedure by giving the surgeon the right instrument, preparing equipment to be used and ensuring the theatre is ready for the next procedure. The circulating nurse, DW7 adequately performed her work of observing the team, opening for the surgical team whatever was needed and documenting the procedure. The ICU team led by Dr Thanga and the nurses whose duty was to provide the post-operative patient care were quick to action upon being called to give their services. In the SAEC meeting of 17th June 2005, the members observed that monitoring responsibility lay entirely on the anaesthetist and the blame on hospital staff should not arise. Further, in the SAEC meeting held on 26th August 2005, the members opined that the anaesthetist was to blame for the monitoring inadequacies. When the plaintiffs’ complaint came up for hearing before the Board, the 2nd plaintiff was cross examined by the 3rd Defendant’s advocate as to his complaint against Dr Thanga, the 3rd defendant’s ICU doctor and confirmed that the duty of sedating and reversing a patient is that of an anaesthetist. Moreover, during the 2nd defendant’s cross-examination by the 3rd defendant’s advocate before the Board, she alluded to the fact that at all times right through the time the 1st plaintiff was admitted at Nairobi Hospital, there would have been a consultant who was overseeing his treatment. During the same proceedings, the 1st defendant was cross examined by the 3rd defendant’s advocate where she confirmed that the ICU team arrived quickly upon being summoned, that they did an excellent job and that she had no complaints against them. On the part of the nursing care, she added that it was adequate and she had no reason to complain. She expressed herself as follows:

“I had no cause to complain. I had cause to complain about the care that was given by some of the consultants that came in but on the part of the nursing and the ICU doctors, they relied on instructions from the consultants. So I can’t say that they did not do what they were asked to”.

592. According to the 3rd defendant, during the cross examination of Dr Gerald Moniz, a consultant anaesthetist and the plaintiff’s expert witness, by the 3rd defendant’s advocate before this court, the expert witness indicated that it is the responsibility of the anaesthetist to monitor the oxygen concentration, pulse rate, blood and carbon dioxide levels. The 3rd defendant therefore submitted that all the above evidence clearly demonstrates that its staff competently discharged their duties.

593. As regards the claim that the nurses employed by the 3rd defendant failed to observe reasonable postoperative care by failing to change the Foleys catheter inserted in the 1st plaintiff in the ICU, it was submitted that the 3rd defendant’s nurses effectively performed their postoperative care duties under the instructions of Dr Amayo, a consultant and in support of this, the 3rd defendant invited the court to consider and rely upon the Board’s ruling on the issue that:

“A nurse cannot of his or her own motion change a catheter. Right through the time the patient remained admitted in the wards of the Nairobi Hospital, he was under the care of a consultant. The consultants are not employed by the Nairobi Hospital, they have admission rights…..The institution cannot be vicariously liable.”

594. Regarding the claim that the 3rd defendant was understaffed, it was submitted that from the minutes of the SAEC meeting of 10th June 2005, DW7, Rosemary Kaviti, the circulating nurse explained that the surgical procedure was not rushed but done normally. In the same meeting SAEC also noted that the surgical procedure went on normally and was not rushed. It was therefore the 3rd defendant’s submission that the plaintiffs have failed to prove a causal link between the staffing of the 3rd defendant’s Day Surgery Unit on the day the surgery was conducted and the 1st plaintiff’s accident. All the people required to be in the theatre during the procedure were present. Moreover, upon the ICU team being summoned to the DSU, they promptly arrived and effectively dealt with the situation in the process saving the life of the 1st plaintiff.

595. As regards the claim of inadequate systems of work incapable of supporting younger consultants, breach of contract and negligence, it was submitted that the 2nd defendant’s comment before the SAEC was unsubstantiated. In only using the uncorroborated statement of the 2nd defendant tendered before the SAEC as proof that the 3rd defendant lacked systems in place to support younger consultants, the plaintiffs have failed to discharge their burden of proof. The 3rd defendant submitted that it has enough measures in place in the Day Surgery Unit to support its doctors and consultants. This is evidently demonstrated by the availability of the theatre team comprising of the theatre technician, the scrub nurse and circulating nurse. Moreover, the availability of theatre machinery and the fast response of the ICU team upon being summoned indicate that consultants can access any form of assistance or support they require from the hospital. According to the 3rd defendant, during the hearing, the 2nd plaintiff (PW1) testified that upon ascertaining in his laboratory that the 1st plaintiff had a fracture of the left side of his nose, he voluntarily contacted the 2nd defendant with whom they arranged to have the minor surgery performed at the 3rd defendant’s Hospital. Further, the 2nd defendant informed him that their first choice for an anaesthetist, Dr Moniz was not available whereupon the 2nd defendant proposed to use the 1st defendant as the anaesthetist and PW1 agreed to it. Upon cross-examination by the 3rd Defendant’s advocate, PW1 admitted that he chose the surgeon and that he agreed with her decisions. It was therefore submitted that it would be unfair for the 3rd defendant to be blamed when negligence occasioned by consultants who were voluntarily chosen by a patient’s parent occurs. In this respect reliance was placed on Denning, L.J’s view in Cassidy v Ministry of Health (1951) 2 K.B. 343 at 362 .

596. Further reliance was placed on the consolidated case of Roe vs. Minister of Health, Woolley vs. Minister of Health et al., (1954) 2 Q.B. 66, where Lord Denning, in reiterating his judgment in Cassidy vs. Ministry of Health.

597. In light of the above, the 3rd defendant submitted that it would be unfair to fault it when the plaintiffs had by their choice and free will decided on the consultant doctors to use. The 3rd defendant had done its part by availing the consultants with all possible measures of support. In addition, the 3rd defendant submitted that there was no contractual relationship between it and the plaintiff as far as the services that were performed by the consultants were concerned. The only contractual relationship that existed was between the plaintiffs and the 1st and 2nd defendant who were the consultants they engaged. The 3rd defendant cannot therefore be in breach of any contract as there was none.

598. Regarding the allegations that the 3rd defendant hospital has poor reporting structures, it was submitted that no evidence was provided to prove their allegation. It was noted that PW1, the 2nd plaintiff herein, in his examination in chief before this court, stated that in trying to get an explanation as to what happened to his son, he wrote a letter dated 17th February 2005 to the CEO of the 3rd defendant Hospital. The Hospital acted on it by instructing the Standard and Ethics Committee of the Hospital to commence investigations into the matter. Moreover, during the SAEC meeting of 21st September 2005, the 2nd plaintiff raised the issue that he felt investigations into the matter was taking long. Dr M.D. Joshi, the SAEC chairperson satisfactorily responded to his probe by informing him that all SAEC cases are usually tackled concurrently but as for the 1st plaintiff’s case, the committee had to meet on specific days. According to the 3rd defendant, the initiative by the Hospital to undertake investigations upon the occurrence of an accident at the establishment clearly demonstrates an effective case reporting mechanism and if anything goes to prove the 3rd Defendant’s diligence.

599. As regards the pending hospital bills, it was submitted that the hospital bill incurred by the 1st plaintiff was Ksh.1, 056,490. 26 which the 2nd plaintiff admitted and voluntarily entered into an acknowledgment of debt agreement with the 3rd defendant’s Finance Department and undertook to pay the debt. It was therefore submitted that the plaintiffs cannot turn around and claim that they do not owe the 3rd defendant or that the acknowledgment of debt was procured through coercion when there is no evidence they have produced to support this.

600. Dealing with the issue of that the 3rd defendant failed to avail the memory of the monitoring ECG machine, it was submitted that the 3rd defendant was cooperative and availed all the materials and documentation needed in the case. The plaintiffs’ allegation is, therefore, merely a fishing expedition intended to achieve nothing. The plaintiffs have in their submissions relied on the evidence of DW4, Prof. Herbert Obura, an Ears Nose and Throat surgeon, who testified on the service record and efficiency of the anaesthetic machine used. It was however submitted that DW4 was in court as an expert ENT witness and Black Laws Dictionary (6th Edition at pg.578) defines an expert witness to be “One possessing with reference to particular subject, knowledge not acquired by ordinary persons.” It was therefore submitted that it is a moot point that DW4 was expected to give his expert opinion on the surgical process. DW4 is not an expert on the service record of the anaesthetic equipment. He is not an expert in the field of anaesthetic medicine and his evidence should, therefore, not be given any weight by the court as it is of little probative value. It was nevertheless, submitted that the 3rd defendant availed the necessary documentation detailing the service records of the Day Surgery Unit’s anaesthetic machines.

601. According to the 3rd defendant, the plaintiffs have in their submissions raised an issue that they had not raised in their plaint. They have claimed that the 3rd defendant gave admission rights to DW1 yet she did not have a valid practicing license as at the material time. It was submitted that parties are bound by their pleadings and, therefore the plaintiffs cannot at this stage introduce a new issue not raised in their pleadings. (See the Court of Appeal decision in Global Vehicles Kenya Limited vs. Lenana Road Motors [2015] eKLR). Nonetheless, the 3rd Defendant submitted that during the proceedings before the Board, the 1st defendant clarified why the commencement date for her practicing licence for the year 2005 was reading 16th March. She explained that she had applied for the certificate earlier and the Board did not reject her application. On the day of the surgery, she was a validly practicing anaesthetist waiting for the delivery of her practicing certificate. She was issued with the certificate on 16th March 2005. In the circumstances, the allegation that the 3rd defendant granted admission rights to an unlicensed consultant ought to fail.

602. According to the 3rd defendant, at paragraph 46 of their submissions, the plaintiffs have relied on the provisions of Rule 12 of the Medical Practitioners and Dentists (Private Medical Institutions) Rules, 2000 on the responsibility of the owner of a private medical institution to assert that the 3rd defendant cannot escape liability in this matter. It was however the 3rd defendant’s submission that even though it has certain responsibilities to its patients, these responsibilities do not extend to being vicariously liable for the negligence of its consultants and relied on Professor Ellen Picard’s article “The Liability of Hospitals in Common Law Canada”, Volume 26 McGill Law Journal (1981) at page 1008 which summarizes the duties of a hospital to its patients. The 3rd defendant further relied on Hillyer vs. The Governors of St. Bartholomew’s Hospital (1909) 2 K.B. 820 C.A, where Farewell, L.J. elaborated on the duty a hospital owes to its patients.

603. In light of the foregoing, the 3rd defendant reiterated its submissions that as the owner of a private medical institution, it should not be forced to pay for the mistakes of consultant doctors engaged by its patients and further relied on the decision of the court in Gold vs. Essex CC (1942) 2K.B. 293, Charlesworth & Percy on Negligence (13th Edition, 2014) and Yepremian vs. Scarborough General Hospital(1980) 28 O.R. (2d) 494(C.A.).

604. In this regard, the 3rd defendant submitted that it did not breach any of the duties it owed to the 1st plaintiff.

605. As regards the reliefs sought, it was submitted that the plaintiffs have failed to prove a case of negligence or breach of contract against it to the required standard. They are therefore not entitled to an award of damages against the 3rd defendant. This is because the damage that the 1st plaintiff is said to have suffered was caused and/or aggravated by third parties (1st and 2nd defendants) procured by the 2nd and 3rd plaintiffs.

606. However, should the court deem it fit to award damages to the plaintiffs, then it should be guided by the precedents set by courts faced with similar matters as elaborated in Peris Onduso Omondi vs. Tectura International Ltd & Another (2012) eKLR where the court was guided by Rahima Tayab & Others vs. Anna Mary Kinanu Civil Appeal No. 29 of 1982(1983) KLR 114; 1 KAR 90and Ossuman Mohammed & Another vs. Saluro Bundit Mohammed Court of Appeal Case No. 30 of 1997,as cited in Edward Mzamili Katana vs. CMC Motors Group Ltd & Another (2006) eKLR.

607. Therefore as regards general damages for pain, suffering and loss of amenities and future pain and suffering for the 1st plaintiff, it was submitted that on the damages for brain injury leading to lack of short term memory and loss of cognitive abilities, disorientation, poor coordination and psychiatric and compulsive obsessive disorders, if the court is inclined to award these damages, then such an award should be made against the 1st and 2nd defendants only. However, in awarding damages, the court should consider that the 1st plaintiff has made notable improvements since he underwent surgery and may fully recover in few years.

608. With respect to 1st plaintiff’s future medical care and treatment, it was submitted that though the plaintiffs pleaded that the 1st plaintiff requires the services of a full time helper at the cost of Kshs. 10,000 per month, they have, failed to adduce evidence during the trial to prove this. In the circumstances, damages under this head should not be awarded. The Plaintiffs have asked the court to consider the costs of occupational therapy at Kshs 1,000 per session, the costs of psychiatric consultations at Kshs 5,000 per visit and the costs of neurological consultations at Kshs 5,000 per visit. However, the only evidence and documentation they have availed with regards to payments of the above services are the receipts of the occupation therapy sessions at Kshs. 1,000 per session. In the circumstances, damages under these heads should not be awarded.

609. According to the 3rd defendant, damages for future medical care and treatment must be specifically pleaded as was pronounced by Majanja, J in Alex Otieno Amolo & another vs. Hayer Bishan Singh & Sons Limited (2016) eKLR.

610. As regards the 1st Plaintiff’s loss of expectation of future earnings, it was submitted that at the age 17 years and still in secondary school as at the date of the anaesthetic accident, the 1st plaintiff was still a minor. In as much as the Plaintiffs presented his certificates in court showing his academic and extra-curricular achievements, it is speculative to determine the 1st plaintiff’s preferred career choice. In the above reasoning, guidance was sought from Charles Ouma Otieno & another vs. Benard Odhiambo Ogecha (Suing As Brother And Legal Representative And Administrator of The Estate Of The Late Oscar Onyango Ogecha(Deceased) (2014) eKLR. It was therefore submitted that in awarding this head of damages, the court should not apply the plaintiff’s reasoning that the 1st plaintiff had intended to become a radiologist like his father since it is not certain whether he would have qualified for the job.

611. According to the 3rd defendant, special damages are only entitled to be paid to a plaintiff for costs actually incurred following injuries suffered. They must be specially proved. The legal costs before the Board and before the High Court and costs of procuring the ruling before the Board do not form part of the special damages in this case. The claim for special damages is not backed by any evidence and should therefore fail.

612. Whereas the 2nd and 3rd plaintiffs have prayed that the court grant them damages for pain and suffering and grievous shock, it was submitted that this prayer is unmerited for the reasons below. First, the 2nd and 3rd plaintiffs have not provided any evidence to prove that they have suffered any injuries. It is trite law that damages follow injuries that have actually been suffered. Secondly, damages for grievous shock are not awardable in Kenya. The 3rd Defendant, therefore, submitted that this prayer fails and should be dismissed.

613. Regarding the 2nd and 3rd plaintiffs’ claim for damages for their loss of dependency on the 1st plaintiff, the 3rd defendant submitted that loss of dependency is a different prayer from grievous shock and it should have been pleaded by the plaintiffs in their plaint.

614. The 3rd defendant relied on the decision of the Court of Appeal in Dakianga Distributors (K) Ltd v Kenya Seed Company Limited (2015) eKLR, where the Court of Appeal Judges D. Maraga (as he then was), F. Azangalala, and S. Ole Kantai quoted with approval of the Supreme Court of Malawi inMalawi Railways Limited vs. Nyasulu[1998] MWSC 3,Sir Jack J in an article entitled “The Present Importance of Pleadings”published in (1960) Current Legal Problems.

615. It was therefore submitted that the plaintiffs are not entitled to this head of damages as they had not raised it in their pleadings.

616. In conclusion the 3rd defendant submitted that the Plaintiffs have not laid sufficient evidence before this court that would justify their allegation of negligence as against the 3rd Defendant. Given the foregoing, it therefore, follows that the Plaintiffs’ case as against the 3rd Defendant should be dismissed.

Determination

617. I have considered the evidence adduced herein as well as the submissions made on behalf of the parties. I agree with the plaintiff that broadly, these are the issues that fall for determination in this suit:

i. Were the 1st, 2nd and 3rd Defendants careless, negligent and/or reckless as per the particulars pleaded in the execution of the medical care of the 1st Plaintiff?

ii. Did the 1st Plaintiff by reason of the negligence and/or carelessness in his treatment management and care by the Defendants suffer the injuries, loss and damage pleaded in the Plaint?

iii. Are the Plaintiffs entitled to damages, and if so, what is the quantum?

618. The chronology of the events leading to this matter were that on 8th February 2005 while playing basketball at [particulars withheld]School in Nairobi, the 1st Plaintiff sustained a nasal fracture. Following his nasal fracture, the 2nd Plaintiff contacted the 2nd Defendant, an ENT Surgeon, to reduce the nasal fracture. The 2nd Defendant accordingly scheduled the 1st Plaintiff for a minor surgery on 11th February 2005 at 10am at the 3rd Defendant’s Day Surgery Unit (DSU) during which surgery the 2nd Defendant would be the surgeon and one Dr Gerald Moniz was to be the anaesthetist. On 11th February 2005, the 2nd Plaintiff took the 1st Plaintiff to the 3rd Defendant’s facility as scheduled and they arrived at 9. 10am with the 1st Plaintiff dressed in school uniform as the plan was to have the 1st Plaintiff report to school after the procedure. However, it was not until 10. 30am when the 2nd Defendant arrived and informed the 2nd Plaintiff that Dr Moniz, the scheduled anaesthetist was unavailable and that Dr Moniz had made arrangements for the 1st Defendant to step in place of Dr Moniz. The 2nd Plaintiff informed the 2nd Defendant that he had no objection to the proposal provided that the 2nd Defendant was comfortable working with the 1st Defendant and the 2nd defendant respondent in the affirmative. After confirming that everything was in order, the 2nd Plaintiff went back to his clinic where he practices radiology with the intention of picking up the 1st Plaintiff later after the surgery and dropping him to school.

619. At around 12. 30pm, the 2nd Plaintiff received an urgent telephone call from the 3rd Defendant to report to the DSU and upon arrival, the 2nd Defendant informed him that the 1st Plaintiff had been admitted at the 3rd Defendant’s Intensive Care Unit (ICU) when they noticed after the operation that he had turned “blue” and suffered hypoxic brain damage. The 2nd Plaintiff proceeded to the ICU and found the 1st Plaintiff unconscious and on a respirator. He then telephoned the 3rd Plaintiff to inform her about the developments and the 3rd Plaintiff immediately went to the hospital. According to the 2nd and 3rd Plaintiffs no clear explanation was given to them as to what exactly had happened to the 1st Plaintiff. The 2nd Plaintiff was however informed that the 1st Plaintiff had been put under heavy sedation and that he would remain in that state until Sunday 13th February 2005 at 5pm when the paralysis and sedation would be reversed to make him wake up.

620. On 13th February 2005 at 5pm, the 2nd and 3rd Plaintiffs attended the ICU in the company of PW7 and one Dr (Mrs.) Thagana both of whom had come to visit the 1st Plaintiff and witness the reversal. At the material time, neither the 1st nor the 2nd Defendant was present. When the 2nd Plaintiff inquired about their whereabouts, the 2nd Plaintiff was informed that the 1st Defendant had passed through the ICU earlier at 3pm and left instructions to the ICU Doctor one Dr Thanga (an employee of the 3rd Defendant) to do the reversal. The 2nd Plaintiff was informed that the said Dr Thanga had started the reversal but was not successful as the 1st Plaintiff could not breathe as expected. Dr Thanga shared her concerns on the dose of sedation which was at 3milligrams per hour and she need to reduce it but needed to be advised by an anaesthetist/neurologist on how to reduce the same and by how much. An attempt was made to reach the 1st Defendant via both the hospital operator and her mobile phone in vain. After consultations, one Dr Kwasa, a neurologist was reached and he advised that the sedation be reduced. This was done and the 1st Plaintiff responded positively by moving his limbs and having spontaneous breathing.

621. The 1st Plaintiff remained in the ICU from 11th February 2005 to 14th February 2005 and was then transferred to the High Dependency Unit (HDU) and subsequently to the General Ward and was discharged on 1st April 2005.

622. The 3rd Defendant’s Medical Advisory Committee (MAC) convened a meeting at the 3rd Defendant’s hospital on 16th February 2005 so that the 2nd and 3rd Plaintiffs could be explained for what happened to the 1st Plaintiff. The meeting comprised of Dr M. Joshi, Dr R. Baraza, Dr N. Nganga, Dr C. Chunge (PW7), Dr P. Okutoi (the 1st Defendant/DW1), Dr C. Olende (the 2nd Defendant/DW3), Dr Singale, Dr Gerald Moniz (PW4). Later, the 2nd Plaintiff registered a complaint with the 3rd Defendant and the 3rd Defendant’s Standards Audit and Ethics Committee (SAEC) met on diverse dates and on the 21st September 2005 the SAEC communicated its findings which were that, inter alia, that: -

i. There were discrepancies in alarm saturation at 90%, the actions taken and the fact that only 1 person heard the alarm.

ii. Stringent action had been taken especially on the 1st Defendant who had already served a suspension of 6 months and it was recommended she serves a further 6 months. She was also to attend all divisional monthly meetings and the regular Tuesday CMEs. After serving suspension, she would re-apply for admitting rights and if granted, be assigned a mentor to supervise and counsel her and a report be made to SAEC

iii. SAEC was concerned about the 1st Defendant’s attitude and relation with family members. SAEC Chairman explained monitoring was ineffective and inadequate, noting that an alarm is one thing that cannot be ignored.

iv. Whole team was responsible especially the team leader

v. Matter be forwarded to the Medical Practitioners and Dentists Board.

623. In addition to SAEC, the 2nd Plaintiff also filed a complaint with the Medical Practitioners and Dentists Board vide his letter dated 18th March 2005 following which the following ensued: -

i. The Medical Practitioners and Dentists Board wrote to the 3rd Defendant a letter dated 30th March 2005 calling for a report on the case to enable the Preliminary Inquiry Committee (PIC) of the Board carry out investigations.

ii. On 4th April 2005, the 3rd Defendant responded to the Medical Board indicating that the matter was under investigation by SAEC and that a full report would be availed after conclusion of SAEC investigations.

iii. On 4th August 2005, the Board wrote to the 3rd Defendant giving the 3rd Defendant ultimatum to submit a report by 12th August 2005 whether or not SAEC would have concluded its investigations.

iv. On 30th August 2005, the 3rd Defendant wrote to the Medical Board informing them that SAEC had concluded that the incident/events that led to the 1st Plaintiff suffering anoxic ischaemic encephalopathy was an Anaesthetic accident resulting from inadequacy of intra operative physiological monitoring on the part of the practitioners concerned, etc.

v. The Medical Board’s PIC wrote to the 1st and 2nd Defendants letters dated 18th July 2005 and 30th March 2005 respectively calling on them to give a report on the case to enable PIC carry out investigations and the said Defendants complied.

vi. The PIC relied on the reports furnished by all the Defendants as pointed out above, the clinical notes, correspondences and Prof. Ngumi’s report and came up with the PIC Report on its findings, recommendations and observations.

624. In furtherance of the recommendations by PIC, the Medical Board commenced an inquiry and proceeded and heard the case and after listening to evidence and considering submissions by parties, the Board delivered its ruling in which it made its findings against the Defendants as follows: -

i. That the 1st Defendant failed to observe reasonable intraoperative care of the 1st Plaintiff including observance of the equipment thereby endangering the life of the 1st Plaintiff, and further that the 1st Defendant failed to observe reasonable care and skill.

ii. The Board considered the case as against the 2nd Defendant and concluded that the facts proved were insufficient to support a finding of infamous or disgraceful conduct/or that the 2nd Defendant as a team leader failed to ensure that the surgical operation was carried out in accordance with the known standards.

iii. The Board considered the case as against the 3rd Defendant and found that whereas the facts were insufficient to prove the charge as against the 3rd Defendant, the Board found that the 3rd Respondent had responsibility under Rule 12(2) of the 2000 Institution Rules which states that the owner and managing body of a private institution as well as the medical practitioner or dentist concerned shall be responsible for any instance of professional misconduct occurring within the premises about which they know or ought to reasonably have known.

625. It is therefore not in doubt that the 1st plaintiff suffered hypoxic brain damage while undergoing nasal surgery at the 3rd Defendant’s Day Surgery Unit. The 1st Plaintiff was however not present during the surgery and apart from what he was told, he could only testify as to his professional knowledge being a doctor himself and the opinions of the experts. This was the same position as the 3rd plaintiff. However there was uncontroverted evidence that the procedure did proceed as planned. The 2nd defendant did not arrive as scheduled and when she arrived, the scheduled anaesthetist was not present and had instead asked the 1st defendant to stand in for her. The explanation given by PW4 for his unavailability was however difficult to understand. According to him, he had been retained the day before the operation took place for an operation which was slated for 10. 00am. However at 9. 45 am, he was not at the Hospital. When he rang the Hospital at 9. 30 am he was informed the patient was not at the Hospital. According to him because this was a day case he was not present at 9. 30 am because in such cases, the patients come one hour earlier. He therefore rang to confirm if the patient has come because in most cases patient don’t turn up. He admitted that between 9. 30 am and 9. 45 he had accepted another case and this according to him, was not unethical because the latter case was an emergency and surgeries can also start late. It is therefore clear that PW4, Dr Gerald Moniz took up another case before the scheduled time for the 1st plaintiff’s operation which, in y view was rather inappropriate. I will however say no more as he is not a party to these proceedings and in event there was no evidence that his absence directly contributed to what befell the 1st plaintiff.

626. Therefore an operation which was scheduled to start at 10. 00 am, according to the 2nd defendant, started at just after 11. 00 am. It was admitted by the 1st Defendant that most of the time the Day Surgery Unit at Nairobi Hospital is busy and has high traffic. In fact according to DW6, that day, the theatre was very busy and the staff were rushed. However, the 1st defendant insisted that there was enough time to get the relevant information for purposes of anaesthesia. She however stated that she that she should not have anesthetised such a patient due to the short notice and that she felt unsupported. There was however no evidence that the short notice per se was the cause of incident. In fact according to DW2, he would have proceeded with the procedure despite the amount of time because everything was normal. According to him, none of the pre-operative system have been raised as the cause of cardiac arrest. However, DW2, Dr Bernard Mark Gacii,who was called as an expert witness by the 1st defendant noted that there may have been lack of comprehensive pre-operative evaluation due to the last minute change in anaesthesiologist doing the case.

627. The question that arises however with respect to this aspect is whether the short notice could have contributed to the manner in which the procedure itself was conducted hence the incident. The 1st defendant admitted, for example, that she was not happy with the anaesthetic chart because it was not filled properly by herself because it was not possible to fill it in during the procedure and she could not refer to information from the machine. Whereas one could understand that due to the fact that the procedure in question was a very short one which required maximum concentration thereby leaving the team with little if any time to fill in the chart as the operation was ongoing, one fails to understand why some obvious mistakes were made in the chart. It was not in doubt that the chart indicated that it was filled at 7. 00 a.m. on 11/02/05, the day of the operation. However, it is agreed that the operation actually started after 11. 00 a.m. according to the chart. It was therefore not surprising that board said that monitoring was poor and there was no indication of sluggish heart and that the chart was fictitious, though in her evidence before this Court she seems to have suggested that the incorrect filling of the chart was as a result of her being traumatised.

628. Although the 1st Defendant insisted that the 1st plaintiff was well monitored and the anaesthetic given was standard for the case, she admitted that the blood pressure was crushed by the drugs she used and if there was a pre-operation problem she should have detected it. It was however unclear to her why the 1st plaintiff had hypoxia and cardiac arrest. She however conceded that the drugs used can cause myocardial depression and severe hypertension.

629. What then were the drugs used? According to the 1st defendant, the process of anaesthesia is in three phases: induction, maintenance and reversal. Induction is like plane taking off, then cruise and landing. Surgery takes place after induction between maintenance and landing. It does not take place at induction or at landing but at maintenance or cruise. At induction she took the patient to sleep and then gave the necessary drugs for the procedure and started the patient on maintenance. She said that she used the drug called protofol to induce sleep. It stays in the body for about 1-3 minutes. She used fentanyl which stays in the body for 1-3 minutes and scoline or Suxamethanoium, a muscle relaxant which stays in the body for 1- 2 minutes. After that the patient will not be on any muscle relaxant. In ordinary normal circumstances, the said drugs would be in the body for 1-3 minutes. There are other drugs used for maintenance. After the induction they will not be in the patient’s body as they will wear off.

630. That there was nothing wrong with the choice of drugs was admitted by nearly all the witnesses who testified on that issue. According to the 2nd plaintiff, there was nothing wrong with the choice of drugs used as long as they were administered in the correct dosages. However some patients may react if all the drugs are used. On his part, PW4 stated that Propofol 180mg was in the correct dosage range, that Suxamethanoium 100mg- a muscle relaxant - was in the correct range, that Fentanyl 100mg was given within the correct dosage range. He however took issue with the volatile agent, Halothane, a volatile agent, whose concentration of 3%, being a drug with strong depressant effects to the myocardium, was too strong for controlled ventilation. In his view, the normal dosage is o.5% - 1%. It was however his view that Atropine, a drug which was omitted, is often used to counteract the vagolytic effect of drugs such as Suxamethanoium, Fentanyl and halothane all of which were used. Possibly, it was his opinion, if Atropine would have been used the heart would not have slowed down. PW4 however added that the anaesthetist procedure may not necessarily be the same since the drugs used may not be the same and it does not necessarily follow that the procedure is necessarily wrong. DW2 on his part testified that the anaesthetic plan and drugs administered were acceptable for the type of patient and the operation. One cannot therefore fault the choice of drugs made by the 1st defendant. However, whether the said drugs were properly administered is another issue.

631. According to the 1st defendant, the volatile anaesthesia are titrated to effect by gradually increasing it to level where there is no reaction to surgical stimulation. By titrating you start from 0. 1-1 and even 1-4 and then titrate backwards to the level required. However, you can also start from 6% downwards. She stated that it is the anaesthetist’s job to decide when to titrate depending on the variables and the response from the patient and communication from surgeon. It was her evidence that at maintenance she used Halothane which she titrated upto 3% which was the highest level and titrated backwards to effect where the surgery could proceed without the patient getting aware of what was going and went down till 0%. According to her, however, the patient was maintained at 3% during the surgery and at the end of the surgery the Halothane was switched off completely.

632. It was however her evidence that once the effect of the pain killer kicks in, the concentration of halothane can be reduced. The anaesthetic chart however did not indicate that there was any reduction in the concentration of halothane. It was therefore not clear from the evidence that the said concentration was actually reduced. As regards whether it was improper not to reduce the same, the evidence of the 1st defendant was that in this case what was used was the short acting muscle relaxant – the Suxamethanoium. If you use a long acting muscle relaxant it means patient is paralyzed for longer and will require reversal of the paralysis which the relaxant might have induced. The patient will also require ventilation to breath for them and will require lower concentration of halothane meaning ventilation is controlled as the patient is relying entirely on the ventilation to breathe for them. Since what was used was short acting muscle relaxant, it means that the muscle relaxant was to facilitate intubation within 1-2 minutes and ventilation used to support respiration in which situation the patient if is partially breathing for themselves while the ventilator is supplementing the breathing. Where the patient is completely controlled, the concentration of halothane is reduced and where patient in breathing for themselves the concentration is not necessarily reduced to the level of where ventilation is used. It was therefore the 1st defendant’s evidence that in this case, where the method used was intermittent positive pressure ventilation or IPPV, it was not necessary to reduce the concentration of halothane below the 3% and the anaesthetic chart seems to support this position though she insisted that at some point she lowered the concentration. She therefore did not believe that there was an error in administration of halothane.

633. This position did not however wholly find favour with DW2, the 1st defendant’s expert witness who testified that in order for patient to breathe on his own the patient is made deeper with higher concentration of Halothane and later the same is reduced to avoid coughing in the tube. This is reduced to maintenance dose. Dw2’S evidence was that to say 3% is higher would not be complete and if it is not to maintenance stage it would be correct. In other words, up to maintenance level 3% concentration of halothane is proper but after that the same ought to be reduced. In fact it was his evidence that if the patient is breathing spontaneously he may require 2 – 2. 5% and admitted that in the absence of evidence that the patient was ventilated throughout and had blood pressure, anything beyond that would be high dose. In this case however, DW2 noted that the chart was incomplete as it did not indicate the amount the 1st defendant started with and the reduction. In the absence of an indication of any other percentage, he admitted that it was possible that the patient was all along on 3% Halothane which was the amount, the 1st defendant stated that she used in the initial stage. According to DW2, Halothane has the effect of slowing of the heart, and with it, blood pressure and heartrate would go down.

634. The 1st defendant however agreed with the views of Dr Kabetu, that low oxygenation and high Halothane level can cause cardiac arrest and that it is not in dispute that at some point the patient had low oxygenation. She confirmed that the blood pressure had gone down to very low levels and that all anaesthetist drugs have that effect since it is one of the side effects though intervention is possible. This was also the position adopted by PW4 who stated that Halothane does 2 things. It depressed the heart and cardiovascular system by lowering the Pulse rate to below 60 so the heart beats slowly. It also reduces the blood pressure as the blood vessels become wider. In this case the witness noted that before the operation the 1st plaintiff’s Pulse rate was lower, less than 60, and being athletic, he had a better reserve hence one had to be careful in using Halothane for such a patient.

635. The 1st defendant while agreeing with Dr Kabetu’s view that that the use of 3% halothane concentration for a long period of time is high, however stated that the statement was incomplete as Dr Kabetu did not indicate what amounts to a long period. Dr Kabetu’s position however seems to have found favour with PW4, Dr Gerald Moniz who testified that while the dosage given was 3%, if someone is breathing on his own you can go to 2. 5% for a short period. However, if someone is not breathing on his own the dosage must be bought down to 1. 5%. In this case, it was his opinion that the 1st plaintiff was on the latter state. To PW4, 1. 5% and 2. 5% are extremes a part.

636. There was however a difference in opinion as to whether Atropine ought to have been used. According to the 1st defendant, she did not use atropine and would not use it. According to PW4, atropine should have been used to counteract the vagolytic effects of suxamethanoium, fentanyl and halothane. It was PAW4’s opinion that since the 1st plaintiff’s pulse rate was already below 60 and three of the drugs used further lower the heart Pulse rate, he would have used Atropine. So in this case there was a potential problem as the three drugs lowered the Pulse rate which was already low. However, the Atropine’s cardio protective monitoring is key to any surgery. On his part, DW2, did not agree that Atropine which is used to dry the throat should have been used since the use of Atropine in manipulation is very rare. This was also the 1st defendant’s position when she stated that Atropine is not used routinely since most patients’ bodies can correct the blood pressure.

637. From the evidence, it was clear that though halothane should have been titrated to effect during maintenance, there was no common ground with respect to the use of Atropine.

638. What then happened during the procedure? According to PW4, the roles of the Anaesthetist in the theatre are the following:

i. To check that all the machines and monitors are working before bringing the patient into the room.

ii. To establish venous access and connect the patient to all monitors available before induction of anaesthesia. The minimum monitoring includes pulse oximetry; ECG; Blood pressure non-invasive monitoring every five minutes; Capnography (Carbon dioxide monitoring); Anaesthetic gases monitoring; Other monitors as deemed necessary for the particular type of surgery.

iii. Induction of anaesthesia when the whole team is ready, i.e. the surgeon and the nurse.

iv. Once the patient has been anesthetized and all the monitors indicate the patient is stable – the go ahead for the surgeon is given.

v. Once the patient is draped the monitors are to be viewed constantly and the alarm limits both upper and lower are set at the desired levels within normal range.

vi. If an alarm goes off, you must check that all the anaesthetic circuits as well as all the drugs and volatile agents are being delivered at the correct dose.

vii. As the surgery goes on the anaesthetic chart must be filled up. If for some reason it cannot be charted immediately, the records are available on the monitor. The chart must be complete at the end of the surgery.

viii. At the end of the surgery, the surgeon usually gives the go ahead for waking up the patient. At this time the volatile agents and sedative drugs are turned off and the patient is only given oxygen. Once spontaneous breathing has returned and is of good volume, the endotracheal tube can be removed. The patient is then wheeled out of the theatre to the recovery room to await full consciousness.

639. DW2 also agreed with PW4 on the need to check machines and the drugs. For routine operation you check whether it is on and that the settings are correct but it does not include technical checks since the parameters are set by the technician.

640. It was agreed by nearly all the witnesses that monitoring is the role of the anaesthetist, in this case the 1st defendant.

641. According to the 1st defendant, after taking the 1st plaintiff’s history, Monitors were set up and applied to the patient by the anaesthetic technician. The 1st defendant explained that there are two types of equipment essential for anaesthetist. One is anaesthetic machine which may include or not include a ventilator and the next set are the anaesthesia monitors. The machine is used to administer anaesthesia to the patient especially in the maintenance phase and has several gadgets and piping. It has the ability to deliver gases to the patient and also to deliver volatile anaesthetics to the patient. The latter are in liquid form when in the container mounted on the machine and they are within the Theatre but gases come from outside through the pipes. For the volatile agent to reach the patient the gases are piped into the machine and it is the anaesthetic technician who does this. The volatile agents are placed in the vaporizers by the anaesthetic technician.

642. According to the 1st defendant, the monitors give you physiological readings of the patient and also alert you when the same readings go beyond the set range – beyond the minimum and maximum cut-off and when there is a disconnection from the monitor. In this case the parameters include blood pressure, pulse rate, oxygen saturation and the endocrinal carbon dioxide levels – the carbon dioxide that the patient emits at the end of every breath. The monitors are applied immediately the patient gets into theatre. The electrodes, a minimum of 5, are applied to the chest and hooked to the monitor in presence of all, surgeon, anaesthetist, technician and nurses. According to her, it is impossible to go on without monitor being connected as the connection of the monitors is the beginning of the surgery.

643. The moment the monitors are applied to electrodes which go to the chest to which the monitors are hooked unto the patient using of the wires from the monitor unto the patient, the beeping sounds come on correlating with heart rate and the actual trace of the ECG appears on the machine. Similarly a pulse oximeter, which is used to determine how much oxygen go through the body, shows on the monitor and the number of saturation in terms of percentage. The pulse oximeter is placed on the toe or other fingers while the blood pressure cuff is placed on the arm.

644. It was her evidence that the use of other electronic equipment may also interfere with the monitor and cause the noise from the monitor. However, the alarm will go off if there is disconnect or range exceeded either way. Since the alarm is continuous till the parameters go back to normal level or the pulsation is fixed, you cannot ignore the alarm and sometimes audible even outside the theatre. If it goes off, the distances between people in the theatre are so short that it is not possible for other people to hear and not the others. She explained that the patient occupies the table, surgeon at the head, an anaesthetist on the side of the table, the Assistant opposite the anaesthetist and anaesthetist assistant besides the anaesthetist so all the three cannot possibly miss the alarm if it went off.

645. According to the 1st defendant, the technician is technically the custodian of the anaesthetic machine in charge of setting up the machine, performing various tests on the machine before being used. They make a check list of what they need to do before they avail the machine for use. They also look at the general hygiene of the patient. Some of the tests include detection of malfunctioning and to ensure oxygen and nitrogen oxide is running and that the vaporizers are fixed and that the gases are flowing based on the protocol fixed to the theatres. The machines are owned by the institution and the technician is employed by the institution.

646. After placing monitors on the patient, the 1st defendant saw that the intravenous line established was in place and started IV fluids. She then talked to the patient and hooked in machine in presence of the patient and the technician hooked the machine under her supervision. According to her, it is not impossible that the ECG dots were not charged and that if there was an omission that would be on the nursing since the patient was hooked at the machine and the monitors started taking the readings.

647. She explained that it is the function of theatre technician to set, check and switch off the machine but denied that she said that she did not check the machine. She insisted that she checked that the oxygen was flowing, the vaporizer had anaesthetic and that the necessary equipment or attachments to the machine have been assembled and that the monitor and its accessories were in place. It was her my testimony that the machine was working. Though the person who loads volatile drugs is the theatre technician, the levels of the drugs is set by the anaesthetist and she insisted that she set the levels of drugs used for the 1st plaintiff.

648. According to her the changes should have been picked up by the monitor so that if the oxygen slipped to 89% which is lower the machine should have picked it up. According to her for heart rate the cut off is 55/minute so that at 68/min the monitor would not have picked this up. While conceding that the lowest limit is 90%, she stated that the alarm would not go off at 90% but would start at anything below 90%. However, it did not alarm and when she first saw it, it was 89%. However at 89% oxygen, the alarm should have gone off. She however did not hear any alarm go off though she confirmed that monitors were hooked on the patient. She could not recall the said machine reading 35%. To her, 35% would be dangerous and would result in hypoxia or starvation of oxygen. It was explained by her that the ECG is the oxygen machine and not pulse oximeter. The other machine they had showed 89% and that would not cause the kind of brain damage that occurred here but it could occur at 35%. . It was her evidence that at the start of the procedure the readings were alright – the blood pressure and heart rate were within normal parameters. It was her evidence that everything was normal up to the moment when desaturation was setting in and reaching alarming point when she saw 89% at the time the 2nd defendant asked her to check the symmetry of the nose and it was at that time that she saw that the machine was functioning indicating something was wrong. Her view was that the monitor may have malfunctioned.

649. The 1st defendant testified that it is expected that beeping sound would correlate to heart beat, the pulse of the patient and an alert. She confirmed that the beeping sound came along with pulse oximeter and heart beat was heard but she did not hear any alert sounds. The beeping sounds were all of normal character throughout the procedure. However, the patient could not be reversed as something went wrong. Accordingly, at the time of resuscitation there was no sound since the beeping sound correlates to the heart beat. In other words an Asystolic event occurred which according to her is when the heart stops and there is no heartbeat as the heart is not pumping blood. So the heart had stopped. It was her evidence that at the time when she was asked to look at the asymmetry of the nose, the beeping sounds were normal but it was quiet and it was upon doing so that she realized there was cyanosis and when she looked at the monitor there was Asystolic and there was no beeping sound. When she looked at the symmetry of the nose she realized the lips were blue and upon looking at the monitor it dawned on her there was Asystolic and that the beep sound were not there. She however confirmed that you do not have to look at the monitor to know that the beeping sounds are not there. It was her evidence that the beeping sounds disappeared at the end of the procedure when she noticed the lips which were exposed at the end were blue hence there was cyanosis which is caused by low oxygen levels.

650. According to the 1st defendant’s knowledge there are 2 types of cyanosis - central and peripheral. The 1st plaintiff had central cyanosis. To the 1st defendant, there was low oxygen level as opposed to low oxygen. In this case the heart had stopped. She explained that cyanosis is a pre-cursor to the heart stopping so you expect cyanosis before cardiac arrest and it takes up to 5 minutes. By the time they noticed this, it was at the end of the procedure and already there was cyanosis. She confirmed that the problem begun as surgery was going on.

651. The 1st defendant testified that the pulse oximeter detects oxygen saturation and at the end of the procedure the patient had low oxygen. She however could not say that the pulse oximeter was not working because the last reading she recorded was 89%. However, when she put the patient on the monitor it was normal. She however agreed that the pulse oximeter does not move from 100 – 90 etc and it can never come for 100 to 50. She could only say that it started with 100 and at the end it was 89. It was her evidence that abnormal saturation would be 90% at the lower or the highest at 100% but it would take 5 minutes to get cyanosis which might have happened during surgery but the machines were not giving any alarms. She however insisted that these days you do not physically monitor the patient hence during the surgery she let the machine monitor the 1st plaintiff, during which time she was looking on the monitors and monitoring the patient. The monitor were normal up to that point.

652. According to the 1st defendant, Dr Moniz’stestimony as regards the roles of the anaesthetist being to check all machines save in urgent situation when you can do it when patient is already in theatre was correct. In this case she said that she checked it earlier. According to her, she checked whether monitor was on, whether the gases were there, whether the volatile anaesthetist agent was there and whether emergency button was working and confirmed that it was. She also confirmed that she connected the patient to monitors.

653. The 1st defendant was however not sure of what went wrong on the said day given that the anaesthetist was the correct and the patient was properly monitored. The only thing is that the monitor was not alarming. She insisted that in her opinion it was the failure in equipment that caused the problem, though she could not say for a fact there was effect of the drugs. While clarifying that she was not saying that she had no responsibility because she gave anaesthesia to the patient, she clarified that she was referring to volume of breathing and enough oxygen which can be due to defect in machines or the settings. In her view, the machine can be working but the settings could be wrong and it is the responsibility of anaesthetist to ensure the machine is working.

654. In this case, it was admitted that there was cyanosis. According to the 1st defendant, sinuses happens when oxygen contents in the blood is very low. However, sinuses leading to cardiac arrest will take longer about 10 minutes or more. On the other hand a cardiac arrest leading to sinuses takes shorter about 5 minutes or so. In this case what happened was cardiac arrest leading to sinuses. If Halothane was the cause she would expect cardiac arrest since halothane is a mycardiac and depresses the activity of the heart then it would have been cardiac arrest leading to sinuses. Therefore by the 1st defendant’s own evidence the problem could have been caused by halothane going by the chronology of the events being cardiac arrest leading to cyanosis. According to the evidence of DW2, The event must have occurred after induction but before the conclusion of the surgery, hence the findings of blue lips (hypoxia) and absence of a pulse just as the operation was being concluded and drapes removed. It has been proved that the 1st plaintiff suffered significant hypoxic brain injury.

655. According to DW2, hypoxic brain injury is caused by lack of perfusion of the brain by oxygenated blood for a period of at least 6 minutes. It was his evidence that though the surgeon in her statement stated that after the patient was noted to be cyanosed, she was informed that the oxygen saturation was 89%, a saturation of 89% per se is unlikely to cause cardiac arrest in a fit young patient with no other co-morbites. However the statement by the theatre technician of the oxygen saturation having dropped to 35% is a severe level of hypoxia and could cause a situation of cardiac arrest.

656. As regards the possible causes of lack of delivery of oxygen to the blood, the witness found no evidence of common causes he enumerated but mentioned one being equipment failure such as the failure of the anaesthetic machine to deliver oxygen to the patient which he did not however deal with. With respect to the possible failure of circulation and therefore lack of perfusion of the brain the witness dealt with possible causes but was unable to point to a particular one as the cause.

657. It was his evidence that he heard the patient was cyanosed and cyanosis takes place between probably two to three minutes from the onset of the problem. According to him, the pulse oximeter would, if working pick it, but it may take a moment to pick it though not more than a minute. The ECG would alarm if the rate is beyond. If the volume is adequate it can be picked. The volume depends on the team. But the warnings are very important. There are two types of cyanosis - peripheral for only one part of the body and full body. The failure to pick the cyanosis would be due to the fact that the pulse oximeter was not picking. It was his evidence that you can also see it from the monitor. To him, the event must have occurred after induction but before the conclusion of the surgery and it is possible that part of the surgery was done when patient had the problem. Though the evidence was contradictory with regard to the percentages with one stating 35% while the other 89%, he said that if it was 89% it would unlikely result to heart attack. However, 35% can cause heart attack. Between the two he would pick 35%.

658. In his evidence he was unable to tell what actual happened in this matter and what he stated in his statement were just possibilities. He however stated that the other possibility could have been the drugs though he could not state that the cyanosis was caused by the drugs.

659. According to the 2nd defendant, cardiac arrest can result from lack of oxygen or reaction to the drugs and if heart stops as a result of the first reason other muscles would be affected. She however stated that cyanosis is a sign of hypoxia and it takes about 5 or so minutes for cyanosis to set in when there is lack of oxygen. The 2nd defendant reiterated that though she did not disclose to the PIC that there could have been a problem with the drugs, in retrospect, after listening to the experts she formed the expert opinion before the Board and the court there could have a problem with the drugs. Apart from the drugs, the 2nd defendant was of the view that equipment failure was possible cause and that the anaesthetist oversees the equipment. She however admitted that something was going on and they missed it.

660. DW5’s evidence was that in the course of the surgery an alarm alarmed and when he checked he was that the oxygen reading in the SPO2 was 90 %. Oxicarp m/o1. According to him the SPO2 machine was set at 90% to warn one that oxygen had started going down. He accordingly pointed this to the 1st defendant who said that the machine was faulty and proceeded to switch it off.

661. In my view nothing turns upon the 1st defendant’s failure to use Atropine. The medical opinions in this field seems to be at variance as to whether the said drug ought to have been used in those circumstances. As was stated by Lord Scarman in Maynard vs. West Midlands Regional Health Authorityreported in the times of May, 1983:

“Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgement. A court may prefer on body of opinion to the other, but that is no basis for conclusion of negligence.”

662. The same view was expressed in Aga Khan Platinum Jubilee Hospital vs. Munyambu [1985] KLR 127 where the Court held that:

"if there are two respectable and responsible schools of medical thought holding different or opposing views of what is or is not negligent in the circumstances of the case the trial judge ought not to choose between them."

663. The House of Lords on its part inHunter vs. Harley (1955) SC 200 held that:

“in the realm of diagnosis and treatment there is ample scope for genuine differences of opinion and one man clearly is not negligent merely because his conclusion differs from that of other men...the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to have been guilty of such failure as no Doctor of ordinary skill would be guilty of acting with ordinary care.”

664. As regards Bolam’s test, Ougo, J. in Ricarda Njoki Wahome vs. The Attorney General and 2 Others HCCC 792 of 2004expressed herself as hereunder:

“It is my finding that as long as the doctor does not go outside the well known medical procedures, it is accepted that there may be variation in approaches to particular cases. It is only in cases where a doctor decides for reasons only known to himself to deviate from well-known procedures that in the event that that deviation leads to injury to a patient that the court will find fault with the doctor concerned. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee [1957] Q.B. popularly known as Bolams’s test. In its applicability to Kenya, Mc. Nair J held that A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought.”

665. In that case the Learned Judge proceeded to hold that:

“A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. So long as a doctor follows a practiceacceptable to the medical profession of that day he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed…Thirdly when it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men have found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence…In the House of Lords in Hunter vs Harley 1955 SC 200 held that “In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other men…The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to have been guilty of such failure as no doctor of ordinary skill would be guilty of it acting with ordinary care.”

666. As was held in Bolam vs. Friern Hospital Management Committee [1957] 1WLR 582 at 586:

“Where you get to a situation which involves the use of some skill or competence, then the test as to whether there has been negligence or not is not the test of the man on top of a Clapham omnibus, because he has not got this skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill...A man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary sill of an ordinary competent man exercising that particular art.”

667. It was therefore held in the above case that:

“Inthe case of a medical man, negligencemeans failure toact in accordance with the standardsof a reasonably competent medicalmen at the time.There may be one or more perfectly properstandards, and if he conformswith oneof these proper standards, then heis notnegligent.”

668. It is therefore, accepted in medical profession that there is no objective test for determining the negligence of a doctor. Whereas doctors are supposed to operate within certain known parameters of diagnosis the profession is not straight-jacketed to the extent that all doctors must respond in exactly the same way when confronted with a set of circumstances. As long as the doctor does not go outside the well-known medical procedures, it is accepted that there may be variation in approaches to particular cases. It is only in cases where a doctor decides for reasons only known to himself to deviate from well-known procedures that in the event that that deviation leads to injury to a patient that the court will find fault with the doctor concerned. It was this recognition that led Onyiuke, J in Whitesidevs. Jasman Mwanza HCCC No. 4of 1970to hold inter alia that in determining whether the duty of care has been discharged by a doctor regard must be had to the fact whether he observed the universally accepted procedures.

669. It was therefore held by the East African Court of Appeal in Pope John Paul’s Hospital & Another vs. Baby Kasozi [1974] EA 221that:

“If a professional man professes an art, he must reasonably be skilled in it. He must also be careful, but the standard of care, which the law requires, is not insurance against accidental slips. It is such a degree of care as normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances of the case, and, in applying the duty of care to the care of a surgeon, it is peculiarly necessary to have regard to the different kinds of circumstances that may present themselves for urgent attention...A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motorcar. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater...The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care...In cases charging medical negligence, a court should be careful not to construe everything that goes wrong in the course of medical treatment as amounting to negligence. The courts would be doing a disservice to the community at large if they were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires the courts to have regard to the conditions in which hospitals and doctors work. They must insist on due care for the patient at every point, but must not condemn as negligence that which is only a misadventure…To the extent of not confusing negligence with misadventure, clear proof of negligence is necessary in cases involving medical men, but it cannot be accepted that the burden of proving such negligence is higher than in ordinary cases. The burden is to prove that the damage was caused by negligence and was not a question of misadventure, and that burden must be discharged on a preponderance of evidence...In medical cases the fact that something has gone wrong is not in itself any evidence of negligence. In surgical operations there are, inevitably, risks. On the other hand, of course, in a case like this, there are points where the onus may shift, where a judge or jury might infer negligence, particularly if available witnesses who would throw light on what happened were not called”.

670. Therefore as was held byRingera, J(as he then was) inK & K Amman Limitedvs. Mount Kenya Game Ranch Ltd. & 3 Others Nairobi (Milimani) HCCC 6076 of 1993:

“for one to prove professional negligence against a professional person one has to call evidence that the professional conducted himself with less than the competence, diligence and skill expected of an ordinary professional in his field or otherwise persuade the Court that the acts or omissions complained of were manifestly or patently negligent”.

671. However what comes out from the evidence adduced before this Court is that the volatile agent which was Halothane, could have caused the problem. It was agreed that the concentration of Halothane needed to be titrated to effect during maintenance. In this case there was no evidence that the titration was done. There was also evidence that the problem could have been caused by the malfunctioning of the anaesthetic machine to deliver oxygen to the patient. Therefore at the surgical stage, these were the only possible causes of the incident. However surgical procedure as a cause of the incident was ruled out.

672. From the evidence and even the findings of the Board and the SAEC it was clear that there was failure to observe reasonable intra-operative care of the patient including observance of the equipment. It is clear that the 1st defendant did not pay proper attention to the machines during the operation. Had she done so, the readings would have indicated either that there was something wrong with the machines or that the 1st plaintiff was in danger. By the time the 1st defendant realised that there was a problem it was too late. Her account that the oxygen concentration was discounted by her witness DW2 who stated that that would not have led to the damage that was caused to the 1st plaintiff.

673. It was stated by the experts that apart from the machines the anaesthetists ought to carry out clinical observation since it is not unknown that machines can be faulty. In this case from the evidence of the 1st defendant, it seems that she relied wholly on the machines and hence derelicted her duties. According to Halsbury’s Laws of England, vol. 26 at page 17 that:

“A person who holds himself as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment and a duty of care in his administration of that treatment…The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires; a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men”.

674. As stated by Jimmy Paul Semenye vs. Aga Khan Hospital & 2 Others [2006] eKLR, it is submitted:

“There exists a duty of care between the patient and the doctor, hospital or health provider. Once this relationship has been established, the doctor has the following duty;-

a) Possess the medical knowledge required of a reasonably competent medial practitioner engaged in the same specialty.

b) Posses the skills required of a reasonable competent health care practitioner engaged in the same specialty.

c) Exercise the care in the application of the knowledge and skill to be expected of a reasonably competent health care practitioner in the same specialty and

d) Use the medical judgment in the exercise of that care required of a reasonably competent practitioner in the same medical or health care specialty.

To define a duty of care in medical negligence a physician has a duty of care and skill which is expected reasonably competent practitioner in [the] same class to which physician belongs acting in [the] same or similar circumstances. When a physician or other medical staff member does not treat a patient with the proper amount of quality care, resulting in serious injury or death they commit medical negligence…In the case law of Blyth v Birmingham Co. [1856] 11 exch.781. 784, Negligence was defend as the omission to do something which a reasonable man, guided upon those considerations which regulate the conduct of human affairs would do, or doing something which a provident and reasonable man would not do. In strict legal analysis, negligence means more than needless or careless conduct, whether in omission or commission, it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing…A duty of care arises once a doctor or other health care professional agrees to diagnose or treat a patient. That professional assumes a duty of care towards that patient”.

675. The 1st defendant herein was not just a general practitioner by was a specialist in her field. As is stated by Dieter Giesen in International Medical Malpractice law:

'........If a physician holds himself out as a specialist, a higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability. A different standard of care and skill therefore is required of a specialist than of a general practitioner'. In Rietze v Bruser [1979]1 WWR 31, a Canadian authority it was held "......the law differentiates between the standard of care expected and required of a general practitioner and that of a specialist. The standard of proficiency required of a general medical practitioner is that of an average competent medical practitioner, whereas the standard of proficiency of a specialist or expert practitioner requires a standard of proficiency of the average specialist or expert in that field. Obviously an expert practitioner is expected to possess and demonstrate a greater degree of skill in his particular field than is a general practitioner."

676. In this case, it is clear that the 1st defendant though possessed of the necessary medical skills and knowledge, failed to exercise the care in the application of that knowledge and skill expected of a reasonably competent health care practitioner in the same medical or health care specialty and further failed to use the medical judgment in the exercise of that care. Her records did not indicate that she titrated the volatile agent to effect as she was expected to do, the seems to have left the inspection of the machines completely in the hands of the anesthetic technician, did not properly monitor the 1st plaintiff during the surgery in order for her to have realized when things were going wrong and taken remedial action in good time and failed to clinically monitor the 1st plaintiff using other medically known procedures as is the practice in her specialty.

677. In my view, if for example a doctor, in excess of his or her zeal for doctrines which are believed in by but a few of his or her fellow practitioners, willfully shuts his or her eyes to the symptoms and procedure in his or her specialty and persuade himself or herself to believe the opposite of what is widely accepted and practiced in his or her field or specialty, that would ne neglect on his or her part of so gross a character that it must amount to a failure to exercise a duty of care. In my view a doctor’s first care must be to his or her patient and not the airing and practice of his or her own peculiar views. If it were therefore shown that by statistics that most of her colleagues were in favour of the use of a particular procedure or remedy, a doctor ought not to allow a patient to run the risk which would not exist if the patient were given a well-known treatment in the profession. In my view it would be very unfortunate if any one doctor were to shut his or her eyes to well known and accepted procedure in the medical profession as a whole and to say, “I prefer to follow my own way of treatment and I do not believe in the general mode of treatment.”

678. DW4, Prof Herbert Ouma Obura, was emphatic that machines are not substitute to physical monitoring by anaesthetist. In his opinion physical monitoring is important because when the machine and physical features do not agree, the physical features take precedence. Accordingly, pulse and blood pressure ought to be physically monitored while a keen attention being given to the monitors as well. According to him, the responsibility for setting the machine is on the anaesthetist and it is good medical and professional practice that the anaesthetist documents the settings of drugs. However in emergency situations he was not sure that records would be kept. According to him, he valued human involvement because sometimes machines do tell lies.

679. It was contended that the 1st defendant was not liable based on Lord Denning’s summing up in Hatcher vs. Black and Others [1954] Times where he stated that:

“in a hospital when a person goes in for treatment, there is always some element of risk, no matter what care is used.”

680. Similarly, in Lord Diplock in Sidaway vs. Bethlem Royal Hospital[1985] 1 All ER 643he put it thus: -

“Inevitably all treatment, medical or surgical, involves some degree of risk that the patient's condition will be worse rather than better for undergoing it. Statistically, the chances of any risk of the proposed treatment going awry at all may be small – but particularly if surgery is involved (though this is by no means confined to surgery) it is never totally absent and the degree of possible worsening involved may cover a whole spectrum of disabilities from mild occasional discomfort to what might justify the epithet catastrophic. All these are matters which the doctor will have taken into consideration in determining, in the exercise of his professional skill and judgment, that it is in the patient's interest that he should take the risk involved and undergo the treatment recommended by the doctor.”

681. However in Dr Laxman Balkrishna Joshi vs. Trimbark Babu God Bole and Another; AIR 1969 SC 128 and A.S Mittal vs. State of U.P; AIR 1989 SC 1570 as cited in the case of Hellen Kiramana vs. PCEA Kikuyu Hospital (2016) eKLRit was held that:-

“When a doctor is consulted by a patient, the doctor owes to his patient certain duties which are (a) duty of care in deciding whether to undertake the case (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and a patient may on that basis recover damages from his doctor.”

682. Therefore where it is proved that a doctor was in breach of the duty of care, it matters not that there was an element of risk involved since the doctor is expected to exercise a duty of care commensurate with the magnitude of the case and his speciality whether the procedure involved is risky or not.

683. In the Medical Journal cited in P B S vs. Archdiocese of Nairobi Kenya Registered Trustees & 2 Others (2016)e KLR it is stated that:-

“Expectations of a patient are twofold: - doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly they will not do anything to harm the patient in any manner either because of their negligence, carelessness, or reckless attitude of their staff. Though a doctor may not be in a position to save his patient’s life at all times he is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him. Therefore, it is expected that a doctor carryout a report from the patient. Furthermore, unless it is an emergency, he obtains informed consent of the parties before proceeding with any major treatment, surgical operation, or even invasive investigation. Failure of a doctor and hospital to discharge this obligation is essentially a tortuous liability….”

684. In this case there was an issue as to whether the 1st defendant secured the consent of the parents of the 1st plaintiff before subjecting him to the procedure. In my view no issue arises from this contention since the 2nd plaintiff, himself a medical doctor, stated that once he was assured by the 2nd defendant that she was comfortable with the 1st defendant as the anesthetist, he had no objection to the procedure. However, doctors ought to expressly obtain consents from their patients or parents unless the case is an emergency one before proceeding with surgery.

685. Is the Hospital or the 3rd Defendant liable for the actions and omissions of the 1st defendant? The answer is clearly in the negative. According to Denning, LJinCassidyvs. Ministry of Health [1951] 2 KB 342 ai 359 the liability of doctors on the permanent staff depends on this: Who employs the doctor or surgeon – is it the patient or the hospital authorities? If the patient himself selected and employed the doctor or the surgeon, the hospital authorities are not liable for his negligence, because he is not employed by them. Lord Greene, M.R. in Gold vs. Essex CC (1942) 2K.B. 293 held that:

“The relationship of a consulting surgeon or physician precludes the drawing of an inference that the hospital authorities are responsible for their negligent acts.”

686. It is clear that in a private hospital, the consulting physicians and surgeons as were the 1st and 2nd defendants herein. See Charlesworth & Percy on Negligence (13th Edition, 2014) (Par.9-155). According to the Commonwealth of Canada High Court case of Yepremian vs. Scarborough General Hospital(1980) 28 O.R. (2d) 494 (C.A.):

“In many cases, a patient is referred by a general practitioner to a surgeon for advice. The patient then retains the surgeon to perform the operation and the surgeon picks the hospital where he has operating privileges. In such a situation, it may be that the hospital is only providing the necessary facilities for the use of the surgeon and really is not much more than a specialized kind of hotel. No liability rests on the hospital for the negligence of the surgeon but only for negligence in connection with the facilities provided.”

687. That said it is clear that the problem would have been arrested had the machines been in good working order. It is clear that in this case the level of oxygen concentration went far below the minimum set limit. Yet the machines did not alarm as they were expected to do. The only person who testified that the machines alarmed was DW5. DW6, Catherine Kibuchi, the Scrub Nurse, seems to have confused the alarm of the monitor as a sign that something was wrong with the normal. He evidence cannot therefore be taken to have corroborated the evidence of DW5 that there was in fact an alarm. There were however two machines and if the 1st defendant switched off the first one there is no reason why the 2nd one did not alarm when he hooked it to the 1st plaintiff. There can only be two explanations for this. Either the machines did not alarm or they were wrongly set. In either circumstance, the 3rd defendant could not escape liability. In the first instance, it would mean that the 3rd defendant supplied defective machines while in the second scenario it would be liable to the negligence of the technician or the biomeds. In this case however, I agree with the findings of the Board that it was improbable that out of the six people in the theatre, it was only DW5, himself the theatre technician who was under the obligation to set the machines, who heard the alarm. His evidence must be taken with a pinch of salt considering that the evidence to the contrary was likely to indict him as having not properly checked the machines to confirm that they were in good working condition.

688. The law, as I understand it, is that where the doctor or surgeon, be he a consultant or not, was employed and paid, not by the patient but by the hospital authorities the hospital authorities are liable for his negligence in treating the patient. It does not depend on whether the contract under which he is employed is a contract of service or a contract for services. That distinction, important as it is, does not apply in cases where the hospital authorities are themselves under a duty to use care in treating the patient. It is clear law and good sense that where a person is himself under a duty of care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation of it be to a servant under a contract of service or to an independent contractor under a contract of services. Therefore (1) if a person is admitted as a patient to a hospital and suffers injuries through the negligence of some member of the staff it is unnecessary for him to pick upon any particular employee; and (2) The law applies the principle of respondeat superior in the case of a hospital just as it does in the case of master and servant in any other sphere of activity, professional, industrial or otherwise and it matters not that the servant does work of a skillful character for which he is specially qualified. The hospital is responsible for all those in whose charge the patient was. See Professional Negligence by J P Eddy (London Stevens & Sons Limited 1956).

689. This was the position taken by Denning, LJ in Cassidy vs. Ministry of Health (supra) at 359 where he said:

“If a man goes to a doctor because he is ill no one doubts that the doctor must exercise reasonable care and skill in his treatment of him; and that is so whether the doctor is paid for his services or not. But if the doctor is unable to treat the man himself and sends him to hospital, are not the hospital authorities then under a duty of care in their treatment of him? I think they are. Clearly if he is a paying patient, paying them directly for their treatment of him, they must take reasonable care of him; and why should it make any difference if he does not pay them directly, but only indirectly through the rates which he pays to the local authority or through insurance contributions which he makes in order to get the treatment? I see no difference at all. Even if he is so poor that he can pay nothing, and the hospital treats him out of charity, still the hospital authorities are under a duty to take reasonable care of him just as the doctor is who treats him without asking a fee…In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the self –same duty as the humblest doctor; whenever they accept a patient for treatment they must use reasonable care and skill to cure him of his ailment”.

690. In this case, whereas the 3rd defendant would not be responsible for the acts and omissions of the 1st and 2nd defendants, it was clearly liable for the acts and omissions of its employees such as DW5, DW6 and DW7. As was held by Mulwa, J in M (A Minor) vs. Amulega & Another [2001] KLR 420:

“Authorities who own a hospital are in law under the self same duty as the humblest doctor, wherever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot of course do it by themselves. They must do it by the staff, which they employ and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him…It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital. They are liable for the negligent acts of a member of the hospital staff, which constitutes a breach of that duty of care owed by him to the plaintiff…Thus there has been acceptance from the Courts that hospital authorities are in fact liable for breach of duty by its members of staff of a duty owed to the patients.”

691. It is therefore my view and I find that the initial problem was caused by the 1st which is what triggered the cardiac arrest and the resultant cyanosis leading to hypoxic brain damage as well as inadequate monitoring of the 1st plaintiff which led to the failure on the part of the 1st defendant to discover early enough that the oxygen level had dropped below the acceptable minimum. However, the situation would have been arrested and the 1st plaintiff would not have reached where he did had the machines been in good working condition which they were not.

692. It was contended that since the same machines were used before and after the incident the subject of these proceedings, that was a clear indication that the machines were not faulty. However, according to DW4, certain machines may have transient malfunction by functioning abnormally under stressful situations and after resting for a time they may work normally. Therefore the machine was used without problem later it may mean it was ok or that the problem occurs transiently. However, the mere fact that the machine was used later without problem does not necessarily mean it was ok.

693. Most of the witnesses were therefore of the view that the machine ought not to have been used after the incident. According to DW4 view it would be careless to use the same machine without being tested as the fact that it works well on the subsequent patient does not rule out the fact that it was defective. In his view, the Anaesthetist machine should be isolated and sent to an uninterested party to access its functionality. It would show what happened in terms of blood volume etc. how the oxygen levels deteriorated whether sudden or not, if carbondioxide gradually went up or down. Further one can get enough idea of what happened. It was his view that it would have been helpful to know if the servicing of the anaesthetic machine was up to date and if after he event, the machine was suitably identified, isolated and assessed by uninterested parties. It was also interesting that the printout which can usually be obtained from the machine immediately after surgery was not obtained as this would have thrown some light on the biochemistry of the patient and hence corroborate suspicions.

694. That this should have been done was confirmed by DW8, the 3rd defendant’s own witness who testified on behalf of the Hospital’s CEO. According to her, the policy of the Hospital after an incident is to check the equipment and if okay continue using it. She however did not know exactly what the Biomedics do save that they have a standard way of checking though she did not know for how long. She agreed that it was reasonable to isolate he machine and obtain the recordings but she was not sure if these were done. She however insisted that the machine was up to date though she was not sure that it was assessed. She could not tell whether the particular machine had printouts and whether the same were requested for and provided. However, the records would be helpful in showing whether the machines were working. According to her the machine is checked by Biomedics, the technician and the doctors before it is connected to the patient and the Technician and Biomedics are employees of the Hospital. She however admitted that though the SAEC recommended that there was a need to check the printout, she was not aware of any printout from the machine. She confirmed that the CEO stated that there were indications of memory but was not aware of retrieval of the memory.

695. It is clear that the evidence of DW8, as to what happened to the machines after the incident was not helpful at all despite the overwhelming evidence that the machine ought to have been isolated and checked before being used again. The report of such inspection ought to have been availed by the 3rd Respondent since those were records which were exclusively within their possession. However according to DW7, the machine was actually checked by the biomedics, who were employees of the 3rd defendant. For some reason, the said biomedics were neither called to testify as to what the found nor was their report or the transcript produced. As most of the witnesses agreed that the transcript would have been helpful in finding where and when the problem started, and as the 3rd defendant who was in possession of the same declined despite requests to avail the same, this Court can only make an inference that had the same been availed, it would have been adverse to the 3rd Respondent’s case. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated that:

“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides: “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.” Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”

696. Similarly, in Green Palms Investments Ltd vs. Kenya Pipeline Co. Ltd Mombasa HCCC No. 90 of 2003, it was held that the failure by a party to call as a witness any person whom he might reasonably be expected give evidence favourable to him may prompt a Court to infer that the person’s evidence would not have helped the party’s case and would have been prejudicial to its case and that the witnesses may have technically avoided to testify to escape being embarrassed on cross-examination.

697. In this case, the 3rd defendant knew right from the proceedings before the SAEC that the issue of the necessity to have had the machine isolated and inspected was a live issue in these proceedings. It have took a calculated risk not to adduce the transcript of the said inspection. In my view this is a classic case where adverse inference ought to be made. Accordingly I find that the failure by the 3rd defendant to adduce the results of the inspection of the machine was due to the fact that the said evidence would have been adverse to the 3rd defendant’s case in so far as the condition of the anaesthetic machine was concerned.

698. That now brings me to the 2nd Defendant, the Surgeon. According to her, the procedure was very short and she could not appreciate central cyanosis because his mouth was covered. She reiterated that once she started the procedure she was not concentrating on the beeping sound but on the reduction of the nose and her eyes were glued on the patient. Having listened to the accounts of the specialists, the 2nd defendant felt that the problem had to do with the drugs which were administered though there are many things that were not done such as the sealing of the theatre and the drugs were not accounted for and the monitors examined.

699. According to DW4, where you are dealing with a patient with dark skin as opposed to a light one, by the time you notice that there is cyanosis, it is usually a late phenomenon. However in a procedure such as this the patient is fully draped leaving only the area for surgery, the nose, since the mouth and eyes are covered. According to him, the surgeon is on top not looking at the nasal opening. Inside is pink so he cannot see cyanosis due to nasal cavity. The best place to see cyanosis would be the lips and the eyes which are usually covered.

700. In fact even the 2nd plaintiff stated that while there was no question of surgical care and procedure, there was the question of responsibility which is a moral and professional issue.

701. On his part, PW4, Dr Moniz, stated that all the reasons he gave as to why something could have gone wrong were anaesthetic issues. It was his evidence that nasal reduction is a 7-10 minutes operation and in such a procedure the surgeon is looking into the nose. While denying that the surgeon should be responsible for looking at the monitor, he stated that if there is an alarm he should hear unless there is bleeding. To him, it is not the duty of surgeon to ensure patient is hooked up but he ought to give the anaesthetist time to properly hook up the monitor and normally waits for go ahead from the anaesthetist. According to him, the surgeon concentrates on the nose and since the patient is fully draped you cannot see the patient going blue unless he is light skinned.

702. The 1st defendant also exonerated the 2nd defendant by saying that as the drapes are covered all over, the surgeon cannot be blamed for failing to notice the lips. That the 2nd defendant could not be blamed for what happened to the 1st plaintiff was confirmed by DW2 who testified that since the procedure was nasal reduction, the patient is draped during the procedure and the drape covers the whole patient with small opening around the nose. It was however his evidence that nasal procedures have very little bleeding in his experience and from the nose it is difficult to tell if a person is cyanosed if you are dark skinned hence from the nose one cannot pick up the change. It was however his evidence that from the statements of the witness and the notes he saw, there was no indication of surgical problem.

703. From the totality of the evidence, it was not indicated that the 2nd defendant was responsible in any way for what happened to the 1st plaintiff. It was DW4’s evidence that though it is assumed that the surgeon is listening to the monitor, his attention is not on the audio and though he may notice cyanosis and has a duty to monitor, he cannot do it as intensively as the anaesthetist because if he divides his attention between surgical and anaesthetic procedure his surgery will suffer. According to him, a cosmetic procedure like this one that entails reduction of a fracture needs and concentration by the surgeon. Though minor, such procedures need concentration and are delicate. In Calhaem, R (on the application of) vs. The General Medical Council [2007] EWHC 260 it was held that:

“More pertinently, Mr Hockton (Counsel for Dr Calhaem) points out that the decision to proceed with the operation was taken jointly by Mr Wilson and Dr Calhaem. I see force in this point. It is difficult to see how, on the evidence, Mr Wilson could avoid bearing some share of responsibility. Nevertheless, the issue under consideration concerned the effects of drugs administered by Dr Calhaem and how those effects should be treated. This was the responsibility of Dr Calhaem. Dr Calhaem must bear principal responsibility for the decision that Mrs A was in a fit state to undergo surgery”.

704. The blame on the 2nd defendant was however due to the fact that as the surgeon she was the team leader and therefore if something went wrong she had to share responsibility. It was agreed by the witnesses that in such cases, the surgeon is the team leader. However, according to DW4, According to DW4, the team leader principle is comparable to the doctrine of the captain of the ship, and that the surgeon as the team leader is the coordinator. However in theatre, responsibilities are well defined and surgeon cannot take the responsibilities of anaesthetist. He can only share them if he does not have the service of an anaesthetic in which case if any surgeon decides to operate without a qualified anaesthetic he takes responsibility since he is the only qualified medical practitioner. It was however held by the Supreme Court of Florida in Dohr vs. Smith 104 So. 2d 29 (Fla. 1958) at paragraph 2 page 5 that: -

“The Surgeon may have been generally in command from the beginning of the operation to the end or, as appellants term him in the brief, “captain of the ship” but it is clear to us that he and the anaesthetist were working in highly expert fields peculiar to each and that despite the common goal, the successful repair of the patient’s ulcer, their responsibilities were not inextricably bound together…The facts surrounding the surgeon’s conduct were certainly not so simple or obvious that he should be placed in the same category as the anaesthetist.”

705. In Nevilland Anothervs. Cooperand Another [1958] EA 594it was held:

“If he professes an art, he must be reasonably skilled in it. He must also be careful but the standard of care which the law requires is not an insurance against accidental slips. It is such a degree of care as a normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances that may present themselves for urgent attention and in a major abdominal operation they include (i) the multiform difficulties presented by the particular circumstances of the operation, (ii) the condition of the patient, and the whole set of problems arising out of the risks to which he is being exposed, (iii) the difficulty of the surgeon’s choice between risks, (iv) the paramount need of his discretion being unfettered, if he thinks it right, to take one risk to avoid a greater, (v) at the penultimate stage...If the defendants have produced a reasonable explanation, equally consistent with negligence or no negligence, the burden of proving that the defendants were negligent and that their negligence caused the damage rests upon the plaintiff”.

706. In this case, the procedure was very short and the patient was fully draped and the only opening left to her was the nose. It was agreed that in those circumstances, it would not have been possible for the 2nd defendant to notice when cyanosis was setting in. I agree with the position in Ricarda Njoki Wahome vs. The Attorney General and 2 Others HCCC 792 of 2004 where the Court reiterated the words of the Supreme Court in Ms. Ins. Mahotravs DR A Kriplani and Others as follows:

“There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctors contribution is either relatively or completely blameless...The human body and medical science are both too complex to be easily understood. To hold in favour of existence of negligence associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.”

707. As was held by Lord S Krishnan Unni, J in M Shoba vs. Dr Rajakumari Unnithan AIR 1999 Kerata 149 referred to in Payremalu Veerpan vs. Dr Amarjeet Kaur:

“A doctor cannot be held negligent simply because something goes wrong. A doctor can be found guilty only if he falls short of standards of reasonable skilful medical practice. The true test, therefore, to hold a medical practitioner guilty of negligence is to have a positive finding of such failure on his part as no doctor of ordinary skill would be guilty of acting with reasonable and ordinary care.”

708. In this case whereas it is true that something went wrong during the procedure that was being carried out by the 1st and 2nd defendant, there was no evidence that she fell short of short of standards of reasonable skilful medical practice as a medical profession of her calibre would have been expected to meet.

709. The 2nd defendant was further blamed for having arrived at the Day Surgery Unit late and having degloved before the reversal of the 1st plaintiff. However according to Professor Raja who testified before the MPDB:

“Again, we all know that sometimes we are late, and sometimes anaesthetists are late, so we equally wait for each other and it depends on what you are doing, if it is a working day, you might be committed somewhere else then you get delayed, we all get everybody will bear me out, not only surgeons, anaesthetists are also late, so it does happen. It is a frequent occurrence…I don’t see any reason why it (the procedure) should be postponed. I mean, if you have come late, you don’t postpone the procedure unless you lost theatre time. Obviously, theatre time is allocated to you and you lost the theatre time and somebody else has gone in and you may decide, okay, I won’t do it today, I will do it tomorrow, I am committed somewhere else but if the theatre is available and the anaesthetist has arrived and you are happy with the whole…. I mean, it is a discussion as a team should we go ahead or should we just leave it, depending on a lot of factors not just that I have arrived late so now I will cancel the case.”

710. It is therefore clear that lateness per se could not have occasioned the incident unless as a result of the same, the due of care was breached. However, it is true that a surgeon ought not to start degloving before the reversal is complete. What is expected is for the surgeon to step aside in order to give room for the anaesthetist to complete the degloving. However being the team leader, the surgeon ought to ensure that the reversal is complete before degloving. It is therefore my view that to that extent, the 2nd defendant prematurely left the 1st plaintiff’s side. However, as was held in Wishaminya vs. Kenyatta National Hospital Board [2004] 2 EA 351:

“In addition to proving negligence, a claimant must prove that the negligence caused the loss of which he complains. In other words, in medical negligence, the claimant must prove that had there been no negligence, the injury, loss and damage of which he complains would have been avoided or at least have been much less.”

711. It therefore follows that mere negligence will not necessarily lead to liability on the part of the defendants. The plaintiff must go further and prove that the injury, loss and damage which he alleges to have suffered would have been avoided but for the said negligence. It was therefore held in Bolitho vs. City and Hacknery Health Authority [1998] AC 232, that:

"in addition to proving negligence, a claimant must prove that the negligence caused the loss of which he complains. In other words, in a medical negligence action the claimant must prove that had there been no negligence, the injury, loss and damage of which he complains would have been avoided or at least have been much less."

712. As regards the post-operative management of the 1st plaintiff in the ICU, two issues were raised. It was the 1st defendant’s case that the 1st plaintiff was extubated before the time she had planned to do so. According to her, the instructions to wean off sedation was not done according to her instructions since her instructions were to wear off sedation gradually. Though she was supposed to come next day and extubate – remove the tube - the tube was removed earlier than she anticipated. According to her, when removed earlier, it means denial of ventilating support when it is still needed. She however could not say that the removal of the tube earlier affected the patient. She similarly could not say that by the time of removal at the ICU there was brain damage or not since she was not sure how long it takes for one to get brain damage after the heart stops. However, it takes about 5 minutes to get brain insult after the heart stops and if he brain cells do not have oxygen for the 5 minutes they start having damages. Since she resuscitate 5 minutes, it is possible that the 1st plaintiff suffered lack of oxygen for more than 5 minutes so by the time the patient left theatre the assumption would be that he had brain which was insulted.

713. What in effect the 1st defendant was saying was that the earlier weaning off did not necessarily aggravate the 1st plaintiff’s condition. Whereas the 1st defendant’s evidence was that she designed the process to take between 48-72 hours, her notes of 13/02/05 to the ICU doctor neither indicated that the plan was to stop paralysis from 5. 00pm and reverse nor that the E- tube should not be removed. Once again the 1st defendant’s record keeping was brought into focus. She was also blamed for having abandoned the 1st plaintiff with Dr Thanga, who did not know how to reduce the sedative.

714. Apart from this it was contended by the 2nd plaintiff that the nurses failed to remove the urine bags which led to the 1st plaintiff being infected.

715. In my view, the issues complained off when the 1st plaintiff was in the ICU ought to be considered in light of the work of Professor Ellen Picard in the article “The Liability of Hospitals in Common Law Canada”, Volume 26 McGill Law Journal (1981) at page 1008 which summarizes the duties of a hospital to its patients as follows:

“In summary, the precedents support these possible duties of a hospital to a patient: a) to select competent and qualified employees b) to instruct and supervise them c) to provide proper facilities and equipment d) to establish systems necessary to the safe operation of the hospital." Since the-other components of tort law apply, the hospital has to carry out these duties as competently as the reasonable hospital in the circumstances and, even if found sub-standard, would have to be found to have caused the patient's injuries before liability would result. All of the protection of tort law normally available to defendants is available to the hospital.”

716. In this case it has not been proved to my satisfaction that the management or mismanagement of the 1st plaintiff in the ICU contributed to the 1st plaintiff’s condition.

717. This Court was urged to give regard to the decisions of the SAEC and the Board with respect to the defendants’ liability. I agree with the position in Evans vs. General Medical Council (1984) UKPC 48, that:

“a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board [of the Privy Council] will be very slow to interfere with the exercise of the discretion of such a committee.”

718. I also have no problem with Ransley, J’sdecision in Atsango Chesoni vs. David Morton Silverstein (2002) eKLR that:

“The matters in issue are peculiarly matters relating to the practice of a medical practitioner of which the members of the tribunal are particularly acquainted as it involves their everyday business. They are in the best position to judge such matters...”

719. However those decisions apply where the Court is seized of the matters which the other bodies were seized of and the Court was being called upon to confirm or vary the same. In this case the professional bodies were undertaking disciplinary proceedings. It is clear that under section 20 of the Medical Practitioners and Dentists Act, Chapter 253 of the Laws of Kenya,the Board’s disciplinary powers are expressly restricted to determining infamous or disgraceful conduct in a professional respect, against a medical practitioner or dentist. To my mind the standard of proof in disciplinary matters is not the same as the standard in civil matters. Disciplinary matters are quasi-criminal in nature and this can clearly be discerned from section 20 aforesaid which provides that:

If a medical practitioner or dentist registered or a person licensed under this Act is convicted of an offence under this Act or under the Penal Code (Cap. 63),whether the offence was committed before or after the coming into operation of this Act, or is, after inquiry by the Board, found to have been guilty of any infamous or disgraceful conduct in a professional respect, either before or after the coming into operation of this Act, the Board may, subject to subsection (9), remove his name from the register or cancel any licence granted to him.

720. Having considered the issues raised in this suit, it is my finding and I hereby hold that the hypoxic brain injury that the 1st plaintiff susffered occurred as a result of want of and failure to exercise the duty of care imposed on the 1st and 3rd defendants. The first defendant was negligent in failing to properly monitor the 1st plaintiff and the anaesthetic machines. She failed to titrate the halothane to effect as she was required to do hence leading to the 1st plaintiff’s cardiac arrest. On the part of the 3rd defendant, it failed to ensure that the anaesthetic machines were in good working condition and a s a result the same did not alarm in order to enable the 1st and 2nd defendants take corrective measures in good time.

721. In the premises I find the 1st and 3rd defendants jointly and severally liable for the injuries occasioned to the 1st plaintiff.

722. That now leads me to quantum of damages. In this case the plaintiffs claim:

a) The 1st Plaintiff for general damages for pain, suffering and loss of amenities and future pain and suffering.

b) The 1st Plaintiff for damages for future requirements as pleaded in the Plaint in paragraph 18.

c) The 1st plaintiff for damages for loss of expectation of future earnings or earning capacity.

d) The 1st Plaintiff for special damages of Kshs. 1,071,080. 00

e) The 2nd and 3rd Plaintiffs for grievous shock.

f) A declaration that the acknowledgement of Debt/Guarantee dated 02/04/2005 extracted by the 3rd Defendant from the 2nd Plaintiff for him to pay Kshs. 1,056,490. 26 being hospital costs occasioned by the medical disaster visited on the 1st Plaintiff is null and void and unenforceable as against the 2nd Plaintiff.

g) Costs and Interest on (a) to (g) above.

h) Any other relief that this Honourable Court may deem fit to grant.

723. It is not in doubt that the 1st plaintiff, before the incident was a very active young man in exceptionally perfect health. When he was examined by the 1st defendant, he was found to be was in good general condition with unremarkable past medical history, reporting no allergies with adequate fasting; had baseline physiological data namely Bp 122/77 mmhg, pulse rate 58/min, temperature 36. 1 deg cent, which were normal findings. According to the 2nd plaintiff, the 1st Plaintiff was a Form 4 student at [particulars withheld]School in Nairobi though he had previously been a student at NPC Academy. He was a bubbly boy with good academic track record and active in various sports where he won prizes at competitions including swimming, basketball and music. PW3 who was once his schoolmate and close friend gave an account of the 1st Plaintiff’s academic and co-curriculum prowess that made the 1st Plaintiff very popular in school. PW3 stated the 1st Plaintiff was heavily influenced by his parents and he had desired to pursue the path of medicine and the 1st Plaintiff’s Reports/Certificates of Excellence were highlighted.

724. However all these changed after the incident and the change was clearly captured by the 3rd defendant who testified that she looks at the 1st Plaintiff and sees a shell. She gave an account of their attempts to take the 1st Plaintiff to an educational institution known as DALC to learn simple mathematics in vain as the 1st Plaintiff wouldn’t focus and the teachers suggested he be discontinued as his memory couldn’t hold instructions. He was also taken to a special school but he couldn’t control himself and on certain occasions started shouting all over the school and had to be withdrawn from school. He is unable to go out by himself to-date and there is no hope of him being an independent man. He asks where his friends are, whether he will ever marry and get children, etc. PW1 also testified to the effect that the 1st Plaintiff is also temperamental and becomes moody, and when this happens, he goes into manic situations and is very aggressive and bangs the door, and he also goes into hypomanic state in which he becomes depressed and sits alone and shows tendencies of obsessive compulsive disorders like he can bathe 6 times a day and gets very aggressive when corrected, etc.

725. PW2 on the other hand concluded that:

i. The 1st Plaintiff suffered severe cognitive deficits and has to re-learn basic skills such as reading, writing and arithmetic.

ii. The 1st Plaintiff suffered psychiatric complications in the form of depression, mania, paranoia and severe obsessional symptoms.

iii. The 1st Plaintiff has had a drastic change in personality and whereas he has been improving, only time will tell how much of his pre-morbid skills and personality can recover.

726. PW2 then prepared a medical report dated 24th May 2006 summarising all the matters stated above. Further, she also did a follow up review of the 1st Plaintiff on or about the 5th February 2008 and prepared a medical report dated 5th February 2008. From her examination of the 1st Plaintiff, she noted that whereas he had made some improvement since her last review of him in the year 2006, he still had difficulties in short and long term memory.

727. In her testimony in court, PW2, stated that after the incident the 1st plaintiff could nolonger read, write or do simple arithmetic and was referred to her because he was severely disturbed, agitated and had paranoia or excessive fear. According to her, the 1st plaintiff developed severe obsessive symptoms and such as doing things over and over and was nolonger the same person. Whereas he had been improving only time would tell whether he would fully recover. She further testified that the 1st plaintiff lost cognitive functions such as intellectual, memory, concentration, attention and the ability to organise himself and his life.

728. It was PW2’s evidence that from childhood cognitive functions develop and that someone who is not cognitive is someone who is going back. It was her evidence that at the time that she saw the 1st plaintiff, he was aggressive, agitated and manic though before he was depressed. He could not sit still, was irritable and aggressive, paranoiac and very suspicious. He had obsession about certain things such as shower. These were however historical observations and when PW2 saw him saw him lastly in 2008 there was a bit of improvement as he could read though he could not be a doctor or a lawyer. At that time PW2 could not apportion any career for him and was of the opinion that the 1st plaintiff may always need to be looked, may not be independent and may sustain many problems. He would therefore not attain full cognitive potential and it may precipitate dementia.

729. On his part, PW5 testified that However about 1 year later, PW5 did a follow up review of the 1st plaintiff in May 2006 when I found the following:

v. He was oriented in place and person but not time. He had a timid look and poor concentration.

vi. His past memory was reasonable but with a lot of gaps. His short term memory was moderately impaired. Immediate recall was poor.

vii. Respecting intelligence, he was not quite familiar with the current events going on in the country, his abstract thinking was impaired and could not even complete simple proverbs.

viii. He had made reasonable improvement generally but still had a major cognitive emotional and psychological deficits.

730. In February 2008 PW5 did another review after which he prepared a medical report dated 7th February 2008 in which he made the following observations and conclusions:

i. J was oriented in space but could not quite remember what day it was but got appropriate answer to the time. He could not recall having seen me before although I happen to be one of his doctors.

ii. J had poor immediate recall. His long term memory was poor. His abstract thinking including interpretation of proverbs was markedly impaired.

iii. J’s intelligence was assessed as below the expected for his age and previous educational background.

iv. J had improved but remains with major neurological and neuropsychiatry defects.

731. In his oral testimony, PW5 reiterated the foregoing and stated that when he first saw the 1st plaintiff in the ICU, he was comatose and intubated and though his vitals such as blood pressure were stable, he was paralysed though was breathing on his own. On 27th February of the same year PW5 examined him in the High Dependency Unit and found that he had been extubated but had a gaze which was not fixed and could not obey commands or respond to anything verbal, was agitated and not focused. While he became more focused, he still could not obey commands. However by the time of his discharge he could obey a few commands but with poor focus with abnormal movements and was still agitated despite being on medication. His movements were purposeless an indication of brain injury. While by then he could walk, talking was still an issue and was on care. After some follow ups PW5 in May 2006 noted that he had made some improvements but still had poor orientation with memory gaps. PW5 explained that memory is long term, short term and working. While the long term was better than the other two, his immediate recall was poor. Though he was slightly aware of the events in the country, he could not complete simple programmes but there was ample improvement.

732. In February, 2008, when PW5 saw the 1st plaintiff, he had marked improvement and could remember and answer appropriately though his memory was abstract and his thinking was poor and had a lot of arguments with the father. He had developed emotional changes. So despite memory improvement, his intelligence remained poor. Though he had improved physically, he was spastic or stiff on one.

733. The day before his testimony, PW5 again say the 1st plaintiff who, despite his improvement, still had problems with the memory and though could remember, the Al Shabaab massacre, his intellect still remained poor.

734. PW5’s diagnosis was that the 1st plaintiff had suffered lack of oxygen and blood in the brain which is fully dependent on nutritional blood such as glucose and oxygen. Apart from that some areas such as the part of thinking and memory are susceptible to lack of blood and if the blood is lacking, some cells die while some get injured and though may recover, definitely there is loss of brain cells which do not multiply. While new circuits can be formed, new cells do not grow. It is these circuits that are the basis of improvement. According to PW5, the cells which did not function before are then recruited though they cannot function as well as before. However, the more complex the subject, the more difficult for the 1st plaintiff to understand though the day to day activities he can comprehend. PW5 therefore concluded that there was complete damage to the1st plaintiff despite improvement. While he can function normally in the house, when subjected to intellectual challenge, he will not be able to perform hence the chances of him becoming a doctor are very remote.

735. According to PW5, the 1st plaintiff cannot definitely become a pilot and will just be able to do a few functional things. While his memory may become independent in terms of cooking etc, the 1st plaintiff, according to PW5 is not yet independent. However in terms of transacting business, he cannot do so and he is dependent on other people. It was PW5’s hope that he does not get another disease though that cannot be ruled out.

736. According to PW5, the 1st plaintiff may develop emotional instabilities and his status has an impact on the parents who may require emotional counselling apart from financial component and expectation which may result in family instability despite the fact that they are resilient.

737. In summary therefore, the damage/injury suffered by the 1st Plaintiff was hypoxic brain damage which led to the following: -

i. Lack of short term memory (The 1st Plaintiff cannot learn and retain information)

ii. Disorientation (The 1st Plaintiff cannot remember time, date and place)

iii. Loss of cognitive abilities (The 1st Plaintiff cannot distinguish society right or wrong)

iv. Psychiatric disorders (The 1st Plaintiff suffers depression, loss of concentration and occasional violent disposition)

v. Compulsive Obsessive Disorder (The 1st Plaintiff does the same things repeatedly)

vi. Poor coordination of movements (The 1st Plaintiff cannot write, play basketball, swim or sing)

vii. Loss of biological clock rhythm (The 1st Plaintiff has no sense of when night ends and day starts-i.e. waking up at 3:00a.m and dress for the day and being unable to go back to sleep)

738. The plaintiff in this case relied on A.A.A vs. Justus Gisairo Ndarera & Another Nairobi HCCC No. 1015 of 2003 / (2010) eKLR, Alec Asutsa vs. Samy Maina Ndei Nairobi HCCC No. 1251 of 2006 eKLR, Peris Onduso Omondi vs. Tectura International Ltd & John Musyimi HCCC No. 715 of 2002andSusan Wanjiru Njuguna vs. Keringet Flowers Ltd & 2 Others Nakuru HCCC No. 64 of 2001 and based on each category of injury prayed that the Court awards between Kshs 13,000,000. 00 and Kshs 20,000,000. 00 under general damages for pain, suffering and loss of amenities.

739. In awarding damages, Potter, JA in the Court of Appeal’s decision in Rahima Tayab & Others vs. Anna Mary Kinanu Civil Appeal No. 29 of 1982[1983] KLR 114; 1 KAR 90 held while relying on the oft cited case of H. West And Son Ltd vs. Shephard [1964] AC 326 at 345 that:

“Money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it must still be that amounts which are awarded are to be to a considerable extent conventional.”

740. From the said case the principles which were formulated were that in awarding damages, the general picture, the whole circumstances, and the effect of injuries on the particular person concerned must be looked at, some degree of uniformity must be sought, and the best guide in this respect is to have regard to recent awards in comparable cases in the local courts. It is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. The court has to strike a balance between endeavouring to award the plaintiff a just amount, so far as money can ever compensate, and entering the realms of very high awards, which can only in the end have a deleterious effect.

741. Although the plaintiffs have itemised each head of injury as attracting separate award in the Court of Appeal in Tahir Sheikh Said Transporters (K) Limited & Another vs. Charles Mugabo Civil Appeal No. 273 of 1998, held that general damages must be assessed on the combined effect of all the injuries on the person injured and not calculated as the sum of all the independent assessment for each injury. That this is the normal practice was confirmed by the East African Court of Appeal in Abid Hussein Quereshi vs. Mrs. Pushpa Ghai Civil Appeal No. 57 of 1960 [1961] EA 466. I have considered the cases cited and it is my view that the one that, as near as possible, reflects injuries similar to those sustained by the 1st plaintiff herein was that of Susan Wanjiru Njuguna vs. Keringet Flowers Ltd & 2 Others Nakuru HCCC No. 64 of 2001. In that case the plaintiff sustained severe head injuries resulting in permanent brain damage, severe dislocation of the elbow joint, multiple lacerations on the dorsal surface of the right hand and bruises to the forehead. As a result of the severe brain damage the plaintiff in that case suffered loss of speech and hemiplegia or weakness of the right upper limbs. Although the plaintiff had been discharged from clinic he could not improve. The Court on 3rd July 2008 awarded Kshs. 3,000,000. 00 in general damages for pain and suffering and loss of amenities. In the subsequent case Peris Onduso Omondi vs. Tectura International Ltd & John Musyimi HCCC No. 715 of 2002this on 19th July, 2012 based on Susan Wanjiru Njuguna vs. Keringet Flowers Ltd & 2 Others Nakuru HCCC No. 64 of 2001 awarded the plaintiff a sum of Kshs 3,000,000. 00 in general damages for pain suffering and loss of amenities. In that case the plaintiff sustained a fracture of the tibia and suffered head injury resulting into loss of consciousness, blunt injury to the right hand and the loss of three upper frontal teeth, bruises. She was admitted at M P Shah Hospital for 3 weeks 3 days of which were spent in the Intensive Care Unit followed by further treatment at Kenyatta National Hospital. As a result the plaintiff has become very forgetful and absent-minded, and developed a staggering walk with inability to write properly coupled with an abnormal behaviour. She has also developed a slurred and incoherent speech with very poor co-ordination of the movements of the right hand hence inability to write as well as poor gait. As a result the plaintiff developed convulsions and was unable to take care of herself her education having been completely ruined.

742. I agree that the resultant consequences of the injuries sustained by the 1st plaintiff herein were more serious than in those other cases. Taking that into consideration as well as the period that has lapsed since those decisions were handed down, I hereby award the 1st plaintiff Kshs 5,000,000. 00 being general damages for pain, suffering and loss of amenities.

743. With respect to the costs of a full-time helper, the Plaintiffs filed a Statutory Affidavit for the helper who confirmed that he is paid Kshs. 10,000/- per month as at January 2008. That the 1st plaintiff will require a minder for the rest of his life was confirmed by PW1, PW4 and PW6. In support of the plaintiff’s case in this head, reliance was placed on Nancy Oseko vs. Board of Governors Maasai Girls High School Nairobi HCCC No. 1718 of 2009 and Martin Kidake (Minor Suing through mother and next friend Rebecca Aseyo) vs. Wilson Simiyu Siambi Nairobi HCCC No. 557 of 2005, where the Court awarded Kshs. 10,000/- per month for the minder. According to the plaintiffs, adopting the age of 60 years, and bearing in mind that the 1st Plaintiff was 17 years as at the date of the surgery, this translates to a sum of Kshs 5,160,000. 00 (Kshs. 10,000 x 12 x 43) if all factors were to remain constant. The Court was invited to appreciate that even though the amount of Kshs. 10,000/- per month was pleaded as at the date of filing suit, the same is subject to increment due to inflation and the same is likely to double up in the coming years. It was therefore implored upon to exercise its discretion and make an award of a modest sum of Kshs. 10 Million under this head of damages.

744. Since the amount pleaded is Kshs 10,000. 00, there is no basis upon which I would award a higher amount. I however adopt a multiplier of 50 years taking into account the fact that the payment would be in lumpsum which give the plaintiff a period of 33 years since the 1st plaintiff was aged 17 years at the time of the accident,. Accordingly the plaintiff would be entitled to Kshs 10,000. 00 x 33 x 12 = 3,960,000. 00.

745. It was submitted that taking into consideration the costs of occupational therapy at Kshs. 1,000/- per session as evidenced by the attached receipts, the costs of psychiatrist consultation at Kshs. 5,000/- per visit and the costs of neurologist consultation at Kshs. 5,000/- per visit, considering that the 1st Plaintiff requires medical consultation from these experts whose frequency moved gradually from every week to every month to at least 6 times in a year, it was rated that the yearly medical needs for psychiatric review, neurological review and occupational therapy to a sum of at the very least Kshs. 96,000/- per year (16,000/- X 6times). Taking into consideration life expectancy of 60 years and his remaining 30 years, this translates to a sum of Kshs. 2,880,000/- excluding medication whose requirement may vary on every review. Following in the footsteps of the decision inSosphinaf Company Limited & Another vs. Daniel Ng’ang’a Kanyi Civil Appeal No. 315 of 2001and taking into consideration the possible medical requirements and the inflation rates the court was implored to make an award for a sum of Kshs. 10 Million under this head.

746. In Sosphinaf Company Limited & Another vs. Daniel Ng’ang’a Kanyi Civil Appeal No. 315 of 2001 the Court of Appeal was of the view that the claim for future medical treatment was part of the general damages, which did not have to be specifically pleaded. However, this seems to be contrary to the holding by the same Court in Sheikh Omar Dahman T/A Malindi Bus vs. Denis Jones Kisomo Civil Appeal No. 154 of 1993where the Court had held that the cost of future medical operation is special damages, which must be pleaded. Faced with these two conflicting positions and taking into account the fact that there was no serious challenge to the said expenses by the defence, I am inclined to adopt the position in Sosphinaf’s Case. In my view an award of Kshs 3,000,000. 00 would be adequate compensation under this head.

747. As regards the 1st plaintiff’s damages for loss of expectation of future earnings or earning capacity. The Court of Appeal in Mumias Sugar Company Limited vs. Francis Wanalo Civil Appeal No. 91 of 2003 [2007] 2 KLR 74 held that:

“The award of loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of the trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”

748. Under this head, it was submitted that at the time of the incident, the 1st Plaintiff was a Form 4 Student who excelled in academics and co-curriculum activities. PW3, the 1st Plaintiff’s very close friend in school testified to the effect that the 1st Plaintiff was highly influenced by his parents and he would have wanted to study medicine. PW1 and PW6 stated that the 1st Plaintiff’s desire was to become a doctor in radiology as his father, and that he was highly influenced by his father. PW2, PW5 and PW7, all doctors in various fields, stated that taking into consideration the damage that was suffered by the 1st Plaintiff, there are no chances of him ever becoming a doctor. PW1 stated that an employed radiologist earns about Kshs. 14,000/- per day and this was not challenged by any of the Defendants in cross examination. It was submitted that the 1st Plaintiff’s future earning is real and assessable and was thus likely to be at least Kshs. 420,000/- per going by the employment amount of Kshs. 14,000/- per day. To the plaintiffs, an assessment of Kshs. 420,000/- per month can only be on the minimum side which the Court was urged to adopt as the multiplicand with of 60 years. To the plaintiffs, this translates to a loss of Kshs. 151,200,000/-. However, bearing in mind that the 1st Plaintiff may spend about half of the amount in living costs and expenses, the court was urged to make an award for a sum of Kshs. 75,600,000/- for loss of expectation of future earnings or earning capacity.

749. In Idi Ayub Omari Shabani & Another vs. City Council of Nairobi & Another Civil Appeal No. 52 of 1984 [1985] 1 KAR 681the Court held:

“In claims for loss of earning capacity by a child it is impractical to get a precise or even a general idea of the infant plaintiff’s capabilities of earning, say, ten years hence. It may be self-evident that the appellant would at the very least have an impaired working capacity but that does not relieve a person alleging from proving every aspect of his case, which is not admitted.”

750. In Oyugi Judith & Another vs. Fredrick Odhiambo Ongong & 3 Others (2014) eKLR, the Court of Appeal expressed itself on the same issue as follows:

“Fredrick Ouma was in Form 2 when he met his death. The claim pleaded was in respect of the loss to his estate under the Law Reform Act. The learned magistrate awarded a lumpsum of Kshs. 800,000. 00 based on Simon Mwangi Mureithi v Martin O. Shikuku & Another MSA HCCC No. 198 of 2003 (UR) where the court awarded Kshs. 720,000/- for loss of earning capacity. The plaintiff in that case was a polytechnic student in his final year. Quite unlike in this case, the future prospects of the deceased were not known nor was there any basis to speculate that he would have been an engineer. Even if he was, the plaintiff did not proffer any evidence to show the level of expected earnings or his prospects in the future. In the circumstances, a multiplier approach was wholly inappropriate as a basis for assessment of damages. A global sum to recognize the loss to his estate would be preferred. I would therefore award the sum of Kshs. 120,000. ”

751. In this case the 1st plaintiff was 17 years old. Obviously he must have had some idea as to what he aspired to be in future. That however must remain merely his wish as an aspiration is not necessarily a reality since there are several imponderables in life. However, apart from his academics, the 1st plaintiff had shown his prowess in extra-curriculum activities. It therefore cannot be said that the 1st plaintiff was a hopeless young man with a bleak future whose future could not be assessed. While I am not amenable to treating him exactly in the position of his father, the 2nd plaintiff, there were real prospects that the 1st plaintiff would earn a realistic income if not from his academics, from his participation in games in which he had shown excellence.

752. In the premises taking into account all the imponderables I am inclined to find which I hereby do that the 1st plaintiff would have earned at least a modest sum of Kshs 150,000. 00 per month. Accordingly adopting the same multiplier of 50 and a multiplicand of 25 he is entitled to Kshs 150,000. 00 x 12 x 25 = 45,000,000. 00. I am prepared to discount this by 30% hence the net sum that I award under this head is Kshs 31,500,000. 00.

753. As the special damages were not contested I award the same in the sum of Kshs. 1,071,080. 00

754. The 2nd and 3rd plaintiffs claimed damages for what they termed as grievous shock. I take this to mean nervous shock. In this case, the circumstances under which the 1st plaintiff suffered hypoxic brain damage were clearly inapprehensible for the parents. The surgery was, admittedly, a simple one taking not more than 10 minutes and thereafter the 1st plaintiff was scheduled to proceed to class the same day. To suddenly be confronted with a situation where that would not happen but the parents would never relate to the 1st plaintiff was clearly a very painful experience to the parents. I agree with the principle in McLoughlin -vs- O’Brien (1982) 2 All ER 298 as adopted by Okwengu, J (as she then was) in Jeremiah Wachira Ichaura & 8 Others vs. Nation Media Group (2000) eKLR that:-

“The test of liability for damages for nervous shock was reasonable foreseeability of the Plaintiff being injured by nervous shock as a result of the defendant’s negligence. Applying that test, the Plaintiff was entitled to recover damages from the defendant because even though the Plaintiff was not at or near the scene of the accident at the time or shortly afterwards, the nervous shock suffered by her was a reasonably foreseeable consequence of the defendant’s negligence.”

755. Without any doubt the 2nd and 3rd defendants were shocked to the bone. According to PW5, the 1st plaintiff’s parents may require emotional counselling apart from financial component and expectation which may result in family instability despite the fact that they are resilient.

756. In fact even the 2nd and 3rd defendants admitted that they were shocked and by the time of the trial were still not able to come to terms with what happened to the 1st plaintiff.

757. The Court of Appeal in Kenya Breweries Limited vs. Saro [1991] Mombasa Civil Appeal No. 441 of 1990 (eKLR) expressed itself as follows:

“We should respectfully agree with Mr. Pandya that in the assessment of damages to be awarded in this sort of action, the age of the deceased child is a relevant factor to be taken into account so that in the case of say a thirteen year old boy already in school and doing well in his studies, the damages to be awarded would naturally be higher than those awardable to a four year old one who has not been to school and his abilities are not yet been ascertained. That, we think, is a question of common sense rather than law. But the issue of some damages being payable is no longer an open question in Kenya. This is because in the Kenyan society, at least as regards Africans and Asians, the mere presence in a family of a child of whatever age and of whatever ability is itself a valuable asset which the parents are proud of and are entitled to keep intact. It is an accepted fact in Kenya that even young children do help in the family, say by looking after cattle or caring after younger followers, and once the children become adults they are expected to and do invariable take care of their aged parents. That must be why we still do not have “homes” for the aged; we think an African son or daughter may well find it offensive to have his/her parents cared for by strangers in a “home” while he or she is still able to look after them. At the national level, the concept now finds expression in the popular phrase “being mindful of other people’s welfare.” If any legal authority is required in support of our views we would quote this court’s decision in Sheikh Mushaq vs Nathan Mwangi Kamau Transporters & Five Others [1985-1986] 4KCA 217, wherein the late Nyarangi delivered himself as follows:-

“In general in Kenya children are expected to provide for their parents when the children are in a position to do so and to the extent of their abilities. The children are expected to do so by the various established customs of the African and Asian communities in Kenya. This particular custom is broadly accepted, respected and practiced throughout Kenya by both Africans and Asians. I would say the application of the custom at family level is the basis of the national ethos of being mindful of the others’ welfare. In the Asian community, the custom is supported by the Hindu religion whose influence on the life of the Hindu community is well night total. That is common knowledge. With regard to Africans, the courts in Kenya exercise their respective jurisdictions inter alia to the extent the circumstances of Kenya and its inhabitants permit and subject to the qualifications those circumstances render necessary. The trial judge’s contemptuous remarks about the custom of the people is contrary to section 3(1) of the judicature Act Cap 8 and therefore to be regretted and disapproved. The custom could not possibly be said to be repugnant to justice and morality. The custom is well within the tenets of the great religions of Hinduism, Christianity and Islam. It is a custom, the practice of which appeals to ordinary people in Kenya, is not malevolent and the trial judge’s view that it is “outrageous and pernicious” must be rejected…. In our view damages are clearly payable to the parents of a deceased child, irrespective of the age of the child and irrespective of whether there is or there is no evidence of pecuniary contribution. The high Court authorities which were cited to us, such as Abdullahi vs Githenye [1974] EA 110, Maurice Miriti vs Feroze Construction Company Limited HCCC No…. 1979, NRB, unreported and so on, all go about all go to support the contention that damages are payable irrespective of age and such like considerations. In Abdullahi vs Githenye, supra, the deceased girl was only seven (7) years old. Kneller J. (as he then was) awarded a total of Kshs. 8,000 in 1974. In Miriti Vs Feroze, supra, the boy was in a nursery school. Nyarangi J. (as he was then) awarded a total of Kshs. 70,000 in 1982 for loss of expectation of life. We are satisfied that the learned judge was right in awarding damages to the respondent following the death of his son and we reject any grounds of appeal that the learned judge erred in holding that the respondent was entitled to claim damages under the Fatal Accidents Act. The respondent was entitled to do so under sections 3 and 4(1) of that Act and under the authorities to which we have referred.”

758. I agree that whereas the 1st plaintiff did not lose his life, the 2nd and 3rd plaintiffs have clearly lost any expectation of any acutance from the 1st plaintiff. The court was implored to exercise its discretion and make an award of damages for Kshs. 6 million being Kshs. 3 million each for the 2nd and 3rd Plaintiffs. Exercising my discretion and taking into account the circumstances of this case I hereby award each of the 2nd and 3rd plaintiffs Kshs 1000,000. 00 under this head.

759. In light of my findings on the liability of the 3rd defendant I find that the purported the acknowledgement of Debt/Guarantee dated 02/04/2005 extracted given by the 2nd plaintiff to the 3rd Defendant to pay Kshs. 1,056,490. 26 being hospital costs is unenforceable as against the 2nd Plaintiff.

Findings

760. Having considered the issues raised in this suit the following are therefore my findings:

1. The hypoxic brain damage that was caused to the 1st plaintiff resulted from the failure of the duty of care owed to the 1st plaintiff by the 1st and 3rd defendants.

2. The 1st defendant failed in her duty to adequately monitor the 1st plaintiff and as a result the volatile agent, Halothane, was not titrated to effect leading to cardiac arrest and cyanosis.

3. The said problem was aggravated by the malfunctioning and failure of the anaesthetic machines to detect the reduction of oxygen level below the minimum set limits.

4. The 1st and 3rd defendants are jointly liable for the injuries occasioned to the 1st plaintiff and the damages resulting therefrom.

5. There was no evidence that the events in the ICU aggravated the injury which had been inflicted on the 1st plaintiff in the Day Surgery Unit.

6. The injuries occasioned to the 1st plaintiff were not as a result of surgical procedure and therefore the 2nd defendant is not liable.

Disposition

761. Having made the foregoing findings the next issue for determination is what remedies should the Court grant in the circumstances of this case. In the premises the Orders which commend themselves to me and which I hereby grant are as follows:

1. The 1st plaintiff is hereby awarded a total of Kshs 43,460,000. 00 being general damages for pain, suffering, loss of amenities, costs of the minder, future medical expenses and loss of earning capacity to be paid jointly and severally by the 1st and 3rd defendants.

2. Kshs 1,071,080. 00 being special damages to be paid jointly and severally by the 1st and 3rd defendants to the 1st plaintiff.

3. Kshs 1,000,000. 00 each to the 2nd and 3rd plaintiffs.

4. A declaration that thepurported the acknowledgement of Debt/Guarantee dated 02/04/2005 extracted given by the 2nd plaintiff to the 3rd Defendant to pay Kshs. 1,056,490. 26 being hospital costs is unenforceable as against the 2nd Plaintiff.

5. The awards in (1) and (3) above shall accrue interests at court rates from the date of this judgement till payment in full.

6. The award in (2) shall accrue interests at court rate from the date of filing of the suit till payment in full.

7. The costs of this suit are awarded to the plaintiffs and the 2nd defendant at the normal scale to be paid jointly and severally by the 1st and 3rd defendants.

762. In conclusion I take this opportunity to express my gratitude to counsel and parties for their patience and assistance during the hearing of this case which, understandably, took a very long time to conclude.

763. Those shall be the orders of the Court.

G V ODUNGA

JUDGE

Read, signed and delivered in open Court at Nairobi this 29th day of January, 2019.

L M NJUGUNA

JUDGE