Chishala v Attorney General (HP 856 of 2012) [2016] ZMHC 214 (23 December 2016)

• IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) 2012/HP /0856 BETWEEN: JOSIAH CHANKA CHISHALA AND ATTORNEY GENERAL DEFENDANT Before the Hon. Mrs. Justice J. Z. Mulongoti in Open Court on the 23rd day of December, 2016. For the Plaintiff: For the Defendant: Mr. M. Mutemwa of Mutemwa Chambers Mr. D. Kam{wa - Acting Assistant Senior State Advocate JUDGMENT Cases referred to: 1. Lupapa v. The People (1977) ZR 38 2. Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582 3. Ju Lungu Fred Matenda v. ZCCMLtd (Appeal No. 37 of1998) 4. Montgomery v. Lancashire Health Board (2015) UKSC11 5. Faidani Daka (suing as administrator of the estate of the late Fackson Daka) v Attorney General (1990-1992) ZR 131 (HC) 6. Attorney General v. Landles (1970) ZR 1(CA) 7. Edna Nyasulu v. Attorney General (1983) ZR 105 (HC) 8. Thacke v. Maurice (1986) 1 ALL ER 497 9. Roe v. Ministry of Health (1954) 2 ALL ER 131 10. Duff Kopa Kopa (suing as next friend and administrator of the estate of the late Chuubo Kopa Kopa) v. University Teaching Hospital Board of Management (SCZ NO.8 of2007) 11. Cicuto v. Davidson and Oliver (1968) ZR 149 (HC) 12. Rosemary Bwalya v. Zambia Consolidated Copper Mines Ltd and others (2005) ZR 1 (SC) 13. Attorney General v. Rosemary Mulenga (SCZNo. 52 of2014 14. Attorney General v. Khalid Mohammed (1982) ZR 49 15. Attorney General v. Kakoma (1975) ZR 212 (SC) 16. Eagle. Charalambous Transport Limited v. Gideon Phiri 1994 S. J.52 (SC.) -J1- 15. Attorney General v. Kakoma (1975) ZR 212 (SC) 16. Eagle Charalambous Transport Limited v. Gideon Phiri 1994 S.j. 52 (SC.) Works referred to: 1. Winfield and ]olowiz on the Law a/Torts, 16th edition at page 103 2. Halsbury's Laws 0/ England, Vol. 33, 4th edition (reissue) 3. Clerk & Lindsell on Torts, 11th edition, London: Sweet & Maxwell for damages is an action for alleged medical This the plaintiff suffered as a result of negligence by Dr. Kasoma of the urology (UTH). The plaintiff department claims to by Dr. attended biopsy on him at UTH, resulting in Kasoma who conducted the University Teaching Hospital and negligently that he was unskilfully negligence a prostate at personal injuries, pain and suffering. The particulars of negligence are stated as follows: I. The plaintiff should have been given medication as metal instruments pain particular, on the fourth count of the metal push, felt so much pain that he screamed that he had been injured. pushed in his were to minimise In anus. the plaintiff II. When the plaintiff he noticed should him and kept him for observation had been sent him away but that not have injured, Dr. should have until he was out of Kasoma admitted danger. III. Dr. Kasoma failed to get had the opportunity plaintiff proper because it was too small. diagnosis, to have done so, the right size of specimen, when he denying the thereby specimen was not used the as The plaintiff further alleges that he was later admitted to UTH the same on 30th january, day 24th january, 2012 and was eventually discharged 2012. During his admission to on 28th january, 2012, Dr. Kasoma went his bed side with Sister Hope Gawaza and apologised for his omission. -J2- •, 'J treated denying the plaintiffs filed a defence avers that the entailed The defendant defendant that underwent which is always a painful procedure anaesthetic. The defendant his pain claims. The there was no negligence on the part of the doctors plaintiff tract as it cannot be done under a local the plaintiff has a low pain the taking a biopsy from his gastro also averred age the intestinal that hence the procedure at UTH as exaggerated threshold plaintiff given and perception. At trial, the plaintiff aged 82Yz testified as (PW1) and called two witnesses. he was he He testified that prior to the biopsy the subject ofthese proceedings, on had previously suffered from cancer of the colon and was operated from in the United States of America (USA) in 2006. When he returned the care of the Cancer Diseases Hospital at the USA, he was put under UTH where In December, 2011, he felt pains in his thighs, pelvis, waist and back bone the cancer clinic at UTH where he had which prompted been attending him to Nkanza referred of what was causing the pain. The results laboratory showed that cancer was elevated and he was referred back to UTH for further examination. the review sessions. A doctor review for 5 years. the PSA or marker for examination him to consult for prostate to undergo scheduled to UTH. He was given a note by Dr. Kennedy Lishimpi, On 24th January, 2012, he woke up feeling quiet fit, he had his breakfast the and went head of the Cancer Diseases Hospital referring him to clinic 7 where he was received by Dr. Kasoma. He testified that Dr. Kasoma told him to undress and lie down and his legs were shackled to the bed. The doctor in his anus. He described then began inserting some metal the first, second and third push as painful but not severe. On the fourth the doctor push, he stated that he felt severe pain and screamed instruments that -)3- -,. " had injured him. The doctor replied that it would be alright. When the procedure ended, the doctor placed the specimen he collected in a tube and gave it to him to take to Dr. Lishimpi. As he was leaving, the doctor told him to expect minimal blood discharge but told him not to worry. He took the specimen to Dr. Lishimpi and left. He testified that as he walked to the vehicle, he felt severe pain. He rushed to the toilet but he could not pass urine easily because his manhood was almost blocked. He was then driven by a friend to Lusaka City Market to catch a bus back home to Chongwe which is about an hour's drive from Lusaka city. Before he could get onto a minibus, he felt pain and an urge to urinate. He used a public toilet and then got onto a bus. While on the bus, he felt the need to urinate and the pain was so much that he could not hold back his screams. When he arrived in Chongwe, he hired a taxi and went home. At home, he felt the urge to urinate again and the pain made him scream such that his children and grandchildren got concerned. He was taken to Chongwe District Hospital where he was referred back to UTH. to no avail. He remained in that condition until He testified that he was taken back to UTH around 20:00 hours on the same day. He was vomiting, bleeding from his anus and manhood and was in severe pain. He stated that his urinary tract had been blocked tried to stop the with blood clots. He was admitted and the nurses bleeding but the following day, being 27th January, 2012. He testified that the next day, he collapsed as a result of the pain. When he regained consciousness, he found his relatives mourning that he had died. He stated that he saw the doctor's report which showed that the nurses had tried to unblock him using a three way gun. He stated that the pain reduced and by midnight the clots were gone. PW1 also disclosed that he had refused to undergo blood transfusion. -)4- It was his testimony that the following day on 28th January, 2012, some doctors went to visit him. He saw a doctor and a nurse walking towards his bed. The doctor read his chart and asked him how he was feeling. He responded that he was in pain and felt weak. The doctor introduced himself as Dr. Kasoma and told him that he was the one the biopsy. Dr. Kasoma then apologised for who had conducted inflicting pain on him. He also disclosed that the hospital management had asked him to prepare a report of the biopsy. He (PW1) asked for a copy of the report but that he has never seen any report to date. He later came to know the nurse as Sister Nancy Hope Gawaza. He went on to testify that he was hospitalised for 6 days until he was discharged on 30th January, 2012. He was requested to go back for another biopsy because the specimen earlier collected by the doctor was small. He refused to redo the biopsy because he was scared time, following his experience. He went back to Dr. Lishimpi. By that Dr. Manda had prescribed other ways of treating the cancer which therapy which was included castration, recommended by Dr. Lishimpi. After undergoing renal therapy, he felt better and has since been feeling fine. but he opted for renal It was PW1's further testimony that when Dr. Kasoma heard that he was suing him, he approached him for a settlement. They met twice and decided to meet again after considering what compensation to make. On 8th April, 2013, they met at Golden Peacock Hotel at which they discussed the terms of the compensation. He requested Dr. Kasoma to call senior members of his family such as his parents to be present. Three days later, on 11th April, 2013, Dr. Kasoma went to his farm in the company of his parents, Dr. Lishimpi, Bishop Msiska and his wife. At that meeting, they agreed on compensation but Dr. Kasoma never went back. He stated that this prompted him to see Dr. Kasoma's -J5- boss, Dr. Kasonkomona, who informed him that management nothing to do with the case. had PW1 contended that the defence that he felt so much pain because of his age is not true. According to him, the cause of the pain was that the procedure was badly conducted such that he still has a swollen bladder. He stated that he was not given local anaesthesia but there is pain in every treatment. He referred the acknowledged that Court to page 3 of his bundle of documents showing the symptoms he suffered after the biopsy. He urged the Court to compensate him for the pain adding that he still had a swollen bladder. In cross examination, PW1 testified that he was 80 years old at the time of the procedure. The operation he underwent in the USAwas for cancer of the colon but he was aware that it could recur. He was sent to clinic 7 by Dr. Lishimpi for specimen collection but the procedure was not explained to him before it was performed and he did not know what it was that he was to undergo. He was only told to undress and his legs were tied to the bed and apart. He admitted that he could not describe the metals which the doctor used but that he saw them when they were being washed afterwards. He insisted that he had no pains whatsoever before the procedure. He testified that he was not given anything before the procedure. He further stated that he did not know how the doctors diagnosed the prostate cancer. PW2, Hope Gawaza, a registered theatre nurse at UTH, testified that the plaintiff (PW1) was her patient sometime in 2012. She testified that when she reported for work in the afternoon, she got a handover that there was a patient who was bleeding who had come from a biopsy from clinic 7. She called the doctor on call to review him. The -J6- •• doctor came and ordered blood transfusion and irrigation for the patient. Her shift ended at 18:00 hours and she knocked off. The next time she saw the patient was when she reported in the morning. On that day, she went on rounds with Dr. Kasoma until they reached the plaintiffs bed. The plaintiff explained that there was a doctor who perforated his bladder and said it was Dr. Kasoma. Then Dr. Kasoma introduced himself and the patient started shouting saying "you would by saying "sorry if I have have killed me!" Dr. Kasoma responded wronged you". Then the plaintiff said "I have forgiven you. If God can forgive, who am I not to'? Thereafter, they moved to the next patient. she remembered Under cross examination, PW2 testified that although she could not the dates, she remembered what she encountered whilst on remember there were other patients in the ward. When duty. She admitted that asked whether the exact words spoken, she went quiet and did not answer. When the question was repeated, she stated that she could remember the exact words. She explained that she could the events because patients do not normally shout at remember doctors so she could remember the plaintiff who was shouting on the material day. She also acknowledged that the sister in charge was also on duty though she is not found in the wards most times. She added that she saw the patient because he had lost a lot of blood such that the doctors ordered a transfusion. the plaintiff was admitted to urology ward. Further in cross examination, PW2 testified that she had been working at UTH since 1998 and was allocated the theatre ward in 2010. She In her testified that the doctor experience, patients bled differently. She reiterated said "if I wronged you, stated that doctors sympathise with patients who are angry. According to her, Dr. Kasoma was sympathising and not apologising to the plaintiff. I am sorry". She further that -J7- •• PW3 was Bishop Tom Msiska, the overseer of True Faith in Christ International Ministries. He informed the Court that he was the plaintiffs brother in law. He testified that he and his wife attended the farm which was also attended by settlement meeting at the plaintiffs Dr. Lishimpi. The meeting was organised by Dr. Kasoma. The plaintiff family. During the was seeking compensation meeting, Dr. Kasoma admitted that he was negligent when he performed the procedure on the plaintiff. He also admitted that he did not do what he was supposed to do and accepted to compensate the plaintiff. However, the amount for compensation was not agreed. from Dr. Kasoma's Under cross examination, PW3 maintained that Dr. Kasoma accepted that he was wrong and was advised to get a loan if he had no money to pay the plaintiff. He has not paid him to date, because UTH has not given him a loan. That was the evidence on behalf of the plaintiff. The defendant called two witnesses. DW1 was Zacharia Kasoma, a medical doctor at UTH. He informed the that he has been practicing medicine since 2004. That he Court previously worked at Ndola Central Hospital from 2004 to 2006 and Kaoma District Hospital in 2007. Then he went to China to specialise in urology up to 2010 when he was posted to UTH on his return. As a urologist, he deals with all organs of the urinary tract system, that is, gland and male kidneys, adrenal gland, urethra, bladder, prostate organs such as penis and testicles. He has performed hundreds of operations, during and after training and has performed some of them without supervision. It was his testimony that he performed a prostate biopsy on the plaintiff for purposes of taking a few samples for examination under a -J8- I •• the procedure entails capturing a few microscope. He explained that tissues from the prostate gland to check if there are cancer cells or not. The operation is done under local anaesthesia using a true cut needle the patient also known as a prostate biopsy gun. During the procedure, lies down with legs flexed. and explained to him how the procedure He testified that the plaintiff was referred from the Cancer Diseases Hospital which suspected cancer because the plaintiffs blood results were abnormal. He testified that before the procedure, he sat down with the plaintiff is the needle and conducted. He explained to him that he would insert finger in his anus after lubricating the anus to relax the anus and lessen the pain. The plaintiff accepted to undergo the procedure and he went the anus and ahead to perform it. He used KY gel which numbs prostate him up some afterwards. He told him that there are some complications afterwards especially for those with advanced cancer such as infections, failure to pass urine, passing urine or stool with blood and at times blood in semen. He told him that if they worsened, he should go back to the hospital. Thereafter, he prescribed an antibiotic and a painkiller for him. the complications were normal but gland. He captured and cleaned tissue The following day while he was in Kabwe, he received a phone call there was a patient from his colleague, Dr. Khan, informing him that who wanted to see him. He asked another doctor to check on the the patient was okay but plaintiff and he received feedback that insisted on seeing him. The next day, he was conducting rounds with the nurse (PW2) who told him that a patient was shouting that he wanted to kill him. When he reached his bedside, he found the plaintiff shouting 'you wanted to kill me", "I need you to apologise!" He calmed him down and explained -J9- -, .. that the complications were normal but he insisted that he had injured him and should apologise. He told him that he had not injured him but he continued shouting. Then he called his senior, Dr. Manda (now deceased), who also explained to the plaintiff but he insisted on a written apology. After a few days, the plaintiff was discharged from hospital. later, the plaintiff took his results to UTH which A few weeks confirmed that he had advanced prostate cancer and Dr. Manda took him through the modes of treatment available in Zambia. The plaintiff opted for radiotherapy which he proceeded to undergo. A few months later, he received a letter from the plaintiff with threats at of a lawsuit. He reported the matter to the medical superintendent UTH who undertook to handle the issue. He was later told that the matter was pending commencement of trial. Before trial, the plaintiff the plaintiff was had sent his nephew, a pastor, who told him that requesting to see him and wanted his phone number. After a few months, he agreed to meet with him at Golden Peacock Hotel. At that meeting, the plaintiff demanded an apology for injuring him. He again explained the effects of the procedure and a quarrel ensued after which the plaintiff demanded to settle the issue with his father. They later met the plaintiff at his farm with his father and brother. He explained in his culture, he had the procedure but the plaintiff maintained that injured him. They left and his father advised him not to communicate with the plaintiff anymore. Under cross examination, OWl testified that when the plaintiff went for the biopsy, he was with his nephew, (a pastor) and Dr. Filinov. OWl insisted that he explained the process of the biopsy to the plaintiff as it is procedural. He denied that he called for the meeting held at the plaintiffs farm or that he had agreed to compensate him as testified by . JlO. -, .. the Bishop (PW3). He maintained in Chongwe just to speak to him. that he drove to the plaintiffs farm testified that his profession OWl Council and that negligence denied that curia. He also admitted outside the hospital that is regulated by the Zambia Medical is met by stiff sanctions. He, however, resolved ex it is not usual or normal to meet patients that was the reason why he wanted the matter to negotiate alleged negligence. In re-examination, establishment plaintiff was calling him for when he agreed to meet him. clients outside is normal. He clarified that he did not know what OWl explained that meeting the the OW2 was Bassem Yani, a consultant urologist who has been working at UTH since 2012. He informed the Court that he graduated in 1993 and in urology. He obtained his first degree in Egypt and has two degrees worked there for 7 years. He obtained his second degree in Zambia and worked at Coptic Hospital before moving to UTH. It cancer systems including 20 years experience in urology. in treatment of problems, that prostate and male genital is conducted when there that he has about that urology specialises bladders in urology. He in the the biopsy is one of the commonest He stated explained kidneys, urethras, prostate. He narrated procedure of prostate to check if there are cancer cells. The doctors explain the doctors to the patient what needs need to take a small piece of tissue from the prostate. They use local to make the area numb and painless. anaesthesia Then a certain the is pushed in a chemical prostate gland to get some piece of tissue which they put preservative to the laboratory for examination. to be done. He explained removed. Thereafter, is suspicion to approach the sample the anus the anus through through is sent needle once that -J11- " He went on to explain that after the procedure, a patient can feel pain or discomfort but it is lessened with the anaesthetic. He testified that pain can happen at any stage during and after the procedure. He stated that doctor prescribe pain killers to be taken at home. Other problems such as bleeding can happen which is common. He testified that even with an anaesthetic, to another. He added that bleeding is a complication and it varies from minor to serious. Blood can be seen when passing urine or in sperm during ejaculation. The patient may also have difficulty passing urine. the patients are informed of these complications. He maintained that They are given antibiotics and pain killers and told to return to the they severe, bleeding becomes hospital experience a high great fever or are unable to pass urine. there is pain and it varies from one patient if pain becomes serious, that, complications When referred to page 3 of the plaintiffs bundle of documents, DW2 such as bleeding, pain and reiterated occur to patient. He difficulty in passing urine which varies from patient further is advancing. The bleeding was also attributed to the plaintiffs age and the fact that he was travelling a long distance to Chongwe. testified that serious bleeding occurs if cancer In cross examination, DW2 stated that he never mentioned vomiting as a complication which can occur after biopsy. He stated that it is not correct to say that a local anaesthetic is never given during a biopsy as 3 of the defendant's defence on page 6 of the stated in paragraph plaintiffs bundle of pleadings. DW2 further disclosed that he did not know the plaintiff and did not attend the biopsy performed on him. In re-examination, DW2 clarified that patients to control pain. local anaesthetic is used on all -J12- . , That was the evidence tendered on the defendant's behalf. for the plaintiff, Mr. Mutemwa, filed written Learned counsel submissions dated 31st August, 2016. He submits that PW1's testimony that Dr. Kasoma had not administered any local anaesthetic prior to performing the procedure on him has not been disputed by Dr. Kasoma or any other witness. The defendant by suggesting that the procedure local anaesthetic has by implication, admitted cannot be done under that no local anaesthetic was administered on the plaintiff. The expert testimony of DW2, was that is to the that defendant's defence. the practice regarding the procedure is always done under local anaesthetic contrary it to attach the appropriate weight and Counsel urged the Court significance to the evidence of the expert witness DW2. The case of Lupapa v. The People(l) was relied upon that expert evidence is there to provide the Court with necessary scientific criteria for testing the accuracy of the facts before it so as to enable the Court to form its own independent judgment. Mr. Mutemwa submitted that, Dr. Kasoma, prior to performing the procedure did not explain the implications and did not obtain consent. Counsel submits that a doctor owes a duty of care to his patients who submit to his care. He referred the Court to the test as laid down in the case of Bolam v. Friern Hospital Management Committee(Z), otherwise known as the Bolam Test. The Bolam case was cited with approval by the Supreme Court in Ju Lungu Fred Matenda v. ZCCM Ltd(3), that in order for an action for medical negligence to succeed, it has to be: "ascertained or established in accordance with generally accepted liability principles and tests for the determination with specific reference to alleged medical negligence. the plaintiff would have had to show that what occurred was as a result of professional In short -)13- of an error and that such error was one that a reasonably skilled and careful practitioner would not have made." That Dr. Kasoma fell below the standard in the manner he performed careful doctor to the plaintiff after the procedure. That administering procedure without explain the procedure, the failure to admit are errors which a reasonably skilled and and attended the to the failure to get the right size of specimen and the procedure, skilled and careful practitioner would of a reasonably the operation the error of conducting a local anaesthetic, for observation the plaintiff the failure after not have made. it before performing it on the Given the invasive nature of the procedure, the doctor ought plaintiff. The explained Montgomery v. Lancashire Health Board(4) to the effect interfering with person's consent must be obtained before any treatment their bodily integrity commences, except where a person is unconscious that or in an emergency" was cited as authority. Counsel pointed out as it has been described although to have of case that the Montgomery case is Scottish, "a representing English law. that further submits the injuries resulted from Dr. Kasoma's and complications failure to conduct procedure Learned counsel suffered by the plaintiff in accordance with the recognised the procedure and to provide the expected level of care. Counsel argued that procedure no question performed if needs be, the plaintiff could invoke the principle of res ipsa loquitur to fortify the submission suffered were as a result of Dr. Kasoma's that negligence. emanated by Dr. Kasoma. Furthermore, from the botched that the pain and injuries the injuries standard that there is the plaintiff has in accordance with the Bolam Test, established That his case to the requisite standard of proof and should be granted the relief sought. -Jl4- . , the evidence that Dr. Kasoma admitted liability According to counsel and even agreed to compensate the plaintiff was corroborated by PW3. Thus, the only reasonable and logical explanation for Dr. Kasoma to farm is that he had gone there to drive to Chongwe to the plaintiffs negotiate a settlement with the plaintiff. The learned state advocate, Mr. Kamfwa, filed written submissions dated 26th August, 2016. He cited the case of Faidani Daka (suing as of the estate of the late Fackson Daka) v. Attorney administrator GeneraJ(S) that in order to establish the tort of negligence, the plaintiff must prove that a duty or care was owed to the plaintiff the breach of which resulted in damage being suffered by the plaintiff. He also cited the case of Attorney General v. Landles(6) that "negligence consists of doing something which a reasonable man would not have done in that situation or omitting to do something which a reasonable man would have done in that situation." involving professionals Relying on the case of Edna Nyasulu v. Attorney GeneraJ(7), Counsel submitted that "the Court will not draw an inference of negligence in cases proof unless thereof, on a balance of probabilities", he argued that the plaintiffs allegations are all based on his opinion. That he has not provided medical evidence to show that the defendant did not perform the biopsy in accordance with the acceptable medical standard in order to prove his case to the requisite standard. evidential is direct there Counsel also cited the case of Thaeke v. Maurice(8) in which Neil, L. J. in the House of Lords had this to say: I do not consider that a reasonable person would "... Furthermore, have expected a responsible medical man to be intending to give a is not, and guarantee. Medicine, The as being, an exact is not generally science. reasonable man would have expected the defendant to exercise all the proper skill and care of a surgeon in that speciality he would though a highly skilled profession, regarded -J15- ... not in my view have expected the defendant 100% success." to give a guarantee of Counsel further cited the case of Roe v. Ministry of Health(9) where it was held at page 139 that: that on hospitals there "These two men have suffered such terrible consequences they should be compensated. But we would is a natural feeling that large if we were to to the community at be doing a disservice that for and doctors liability impose to go wrong. Doctors would be led to think more of their happens own safety Initiative would be their patients. stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure ... in medical cases, the fact has gone wrong is very often not in itself any evidence of negligence. " than the good of that something everything that the defendant contention standard. It was counsel's The cases of Duff Kopa Kopa (suing as with the acceptable of the estate of the late Chuubo next friend and administrator Kopa Kopa) v. University Teaching Hospital Board of Management (10), and Cicuto v. Davidson(11) where the 'Bolam Test' was applied by the Supreme Court and the High Court, respectively were relied on. acted in accordance also relied on the Supreme Court decision The learned state advocate in the case of Rosemary Bwalya v. Zambia Consolidated Copper Mines Limited and others(1Z)that: "(1) The standard of care demanded of medical practitioners is the standard of the ordinary skilled man exercising and professing to have that special skill It is sufficient expert (2) A medical practitioner if he exercises the ordinary skill of a competent skill. person exercising that particular art. The art is judged in the light of the practitioner's need not profess the highest specialty. -Jl6- '. , In determining whether a defendant has fallen (3) below the required standard of care, the law looks to responsible medical opinion. A practitioner who acts in conformity with an accepted, approved and current practice is not negligent. practitioner The standard that was required in the performance of the BTL the ordinary skilled doctor exercising that (4) operation was that of special skill. caused (5) Whatever evidence does not suggest negligence. " the failure the that failure was a result of professional the BTL operation, of the doctor acted in In view of the above, Mr. Kamfwa, argued that conformity with accepted, approved and current practice and was thus not negligent. DW2 confirmed that pain and bleeding is normally to another and experienced after a biopsy and varies from one patient that patients are advised to go back to the hospital if the symptoms In addition that the attendance sheet on pages 3 and 5 of the worsen. Plaintiffs bundle of documents show that the plaintiff developed post- a standard biopsy risks normally colon cancer procedure. Furthermore, the previously biopsy which speaks to why he experienced a lot of bleeding and pain. about 79 years old when he underwent the plaintiff by patients experienced and was suffered after had considered and I have submissions by counsel. The following are common cause and thus proved: the pleadings, on record evidence the 1. The plaintiff had previously suffered from colon cancer and underwent an operation in the USA in 2006. Thereafter, he was undergoing review at the University Teaching Hospital every 5 years. 2. The plaintiff was aware that the cancer could recur. 3. Sometime in December, 2011, the plaintiff went to UTH after he experienced pain in his thighs, pelvis, waist and lower back. He -J17- sent to Nkanza Laboratory where he obtained results was showing that his marker for prostate cancer was elevated. He was referred back to UTHfor further examination. 4. On 24th January, 2012 he went to UTH where he was attended to by Dr. Lishimpi, the head of the Cancer Diseases Hospital, and Dr. Kasoma, a urologist. Dr. Kasoma conducted a prostate biopsy on the plaintiff in order to capture tissue for examination on whether the cells were cancerous or not. 5. After the biopsy procedure, the plaintiff was released and he went back home. However, he suffered severe pain, vomiting, and was passing blood in his urine. He went back to UTH and was admitted for 6 days until he was discharged on 30th January, 2012. He alleges that he suffered these symptoms due to the defendant's negligence through Dr. Kasoma. 6. The plaintiff was subsequently diagnosed with prostate cancer. He underwent radiotherapy at UTHand has since recovered. falls for determination The issue that is whether Dr. Kasoma was negligent in the manner he conducted the biopsy and attended to the plaintiff. It is settled law that doctors and nurses owe a duty of care to cited. In Attorney patients as submitted by counsel and authorities General v. Rosemary Mulenga13 the Supreme Court observed that: the practitioner's to establish negligence, the plaintiff must prove " It is trite that that actions fell below the accepted standard of care, or the degree of care a reasonable similarly qualified health the same or similar care provider would have provided under circumstances. " According to Halsbury's Laws of England, Vol. 33, 4th edition (reissue) paragraph 623 at page 447: is required to meet "A professional skilled man exercising and professing to have the special skill question. An error ofjudgment will not amount the ordinary in to negligence unless the standard of -J18- .. " , care. Where there are differing it is one that would not have been made by a reasonably competent professional with the standard and type of skill of the defendant, acting with ordinary and well established schools of thought on an issue, a professional will not be in following one rather than another even if regarded as negligent the wrong choice of the standards of the the outcome suggests that courts profession, although in the medical context Commonwealth to which the reasonable have required of the court may patient would attach significance. Exceptionally, the disregard professional practice on ground that requirements of reasonable care." it fails to meet disclosure the risks to the learned authors And according "medical men owe a duty of care in tort there is a contract with the patient or not." Thus, the defendant patients the manner he attended to the plaintiff and conducted the biopsy? of Clerk & Lindsell on Torts, towards their patients, whether that there is no doubt like Dr. Kasoma owe the in through its agents or servants is, was Dr. Kasoma negligent a duty of care. The question, that argument I received evidence that Mr. Mutemwa's is always administered and he explained what contrary to the defendant's the before is the later. is paramount. Second, DW2's testimony is just an in light of all the evidence before I must state from the outset evidence of DW2 that a local anaesthetic a prostate biopsy is performed First, immaterial. procedure His testimony is what expert opinion which I must consider me. As held in Bolam v. Friern Hospital Management a practitioner who acts in conformity with an accepted, approved and current practice there is a body of opinion which would take a contrary view". is not negligent merely because from OWl who conducted as I shall consider Committee2," transpired defence, ... As I see it, the real onus of establishing what a reasonable as the defendant issue is whether negligence. The benchmark the plaintiff has discharged the for negligence being person would have done in the same circumstances experienced. The ultimate analysis in cases of -J19- '. ' negligence complained this case the appropriate applicable, General(14), the plaintiff case. Hence, notwithstanding the plaintiff probabilities in the particular is whether of fell short of the standard circumstances of a reasonable the conduct person or in standard for the relevant medical personnel v. Attorney is, a urologist. that the Supreme Court held that "the burden of proof lies on to prove his case whatever may be said of the defendant's In Khalid Mohammed the inconsistency case, still has the onus of proving his case on a balance of in order to succeed with his claim". in the defendant's him prior and after instruments the procedure before performing to the biopsy because Dr. it and that to in his anus such that he felt so much The plaintiff claims that he did not consent Kasoma did not explain the procedure the doctor was negligent because he did not anaesthetise inserting the metal complications. pain during to Dr. Kasoma for sample collection, According to him, when he went lie down and his legs were shackled to he was simply told to undress, the defendant's witness, DWZ, testified that the bed. On the other hand, he administered. anaesthetic a local explained he plaintiff the the proceeded to perform it. That he used KYGel to lubricate and numb the plaintiffs an antibiotic and pain killers. is always and anus. He also prescribed OWl consented that before and suffered procedure stated the plaintiff did not call any independent medical evidence to At trial, aid his version of events. Neither did the plaintiff call his nephew nor Dr. Filinov who accompanied to give an account of essentially Dr. Kasoma's word against what his. him to the hospital It is therefore transpired. of hearing and seeing the witnesses version of events more probable during Having had the advantage than that trial, I find the defendant's in of the plaintiff. Attorney General v. Kakoma(15) is fully entitled to make findings off act where the parties advance directly conflicting stories; but I am guided by the holding of the Supreme Court that "a court -J20- • ~ ~ , '. J in his testimony. the court must make those findings on the evidence before it and having seen and heard the witnesses giving that evidence". Further, DWI was consistent If anything his testimony as to what transpired is confirmed materially by that of the plaintiff except on the issue of the local anaesthesia the plaintiff like DWI testified that the doctor told him after the procedure, to expect minimal blood discharge and not to worry. and lack of consent. For instance, anus after lubricating as the doctor explained, I therefore, accept his testimony that he explained the procedure to the plaintiff before conducting the biopsy. I am also inclined to find that that "he used the plaintiff was anaesthetised the anus and prostate gland." He also explained KY gel which numbs that he told the plaintiff that he would "insert in the anus to relax the anus and his (plaintiffs) lessen the pain". This is in line with DW2's testimony that the local is given "through the anus to make the area numb and anaesthesia painless". And that doctors explain to patients what needs to be done. I am inclined to find that Dr. Kasoma was not negligent in the manner he conducted the biopsy on the plaintiff. He acted in accordance with accepted, approved and current practice as held in the Bolam case (supra). the needle and finger The plaintiff has failed to prove that the doctor conducted himself in a manner constituting negligence. I am fortified by the Supreme Court decision in Rosemary Bwalya v. Zambia Consolidated Copper Mines and Others12 "the standard in the performance of the BTL operation was that of the ordinary skilled doctor professing to have that special skill. It was not a question of professing skill .." So long as the doctor acts with general or the highest expert ordinary level of skill and diligence possessed by members of that profession, he is not negligent. that was required that I note also the plaintiffs excruciating pain on the fourth insertion of a metal claims that during the procedure, he felt in his instrument -J21- the procedure, he experienced expert witness, OW2 and OWl, severe pain, anus. And that after and a blocked manhood. The vomiting, passing blood in urine defendant testified that pain can happen at any stage during and after a biopsy and that pain can be experienced even with an anaesthetic and that it varies from patient to patient. That the complications experienced by the plaintiff could have been aggravated by factors such as his age, the stage of the cancer and the distance he travelled back to Chongwe on the material day after the procedure. They explained that the symptoms which the plaintiff suffered after the procedure were normal complications which a patient can experience after a prostate biopsy. Further, as earlier alluded to, there was no medical evidence tendered by the plaintiff or his witnesses to show that the doctor deviated from and competently the standard procedure the skilled urologist. plaintiff calls expert evidence which supports that any error made was a negligent error. See Rosemary Bwalya v. Zambia Consolidated Copper Mines & Others (supra). in medical negligence cases, that required of a reasonable It is important I have also taken note of the plaintiffs medical history that he had previously suffered colon cancer and was aware that it could recur. As aforestated, the plaintiff I have found as a fact that after the procedure, was later diagnosed with prostate cancer for which he proceeded to undergo treatment at UTH. the biopsy was Additionally, as the doctors, OWl and OW2 testified, necessary to determine whether the plaintiff had cancer. Given the nature of a biopsy, I do not see how the procedure could have been the performed without any effect or complication. As such, I find that effects the plaintiff experienced after the procedure were normal and they could have been more severe owing to his age and state of that health at the time. I opine that pain is inevitable in any operation especially of the nature which the plaintiff underwent especially taking -J22- • - "'-. ", I into account actually his age and state of health at acknowledged during trial that the time. The plaintiff in every is pain there treatment. collected cancer. took the results which later enough tissue which was used to detect I accept DWl's testimony that after the procedure, The plaintiff also claims that not collect to substantiate doctor prostate plaintiff cancer. The plaintiff disclosed know how the cancer was diagnosed later diagnosed and treated my mind, that the doctor was negligent because he did the right sample size. Again he did not adduce any evidence the his allegation. On the facts before me, I find that if he had the that he had prostate that he did not that he was in the plaintiff has failed to establish negligence. cancer. There is no doubt in cross examination but acknowledged for prostate showed it would still not be conclusive view that even if it were established All in all, I am of the considered evidence that no anaesthesia was used, even with an of negligence. DW2 testified that pain can be experienced alluded anaesthetic according to Halsbury's Laws of England "an error of judgment will not amount to negligence unless it is one that would not have been made by a reasonably competent professional with the standard and type of skill of the defendant, acting with ordinary care". the biopsy. And as and after during earlier that alleges that he suffered is also note worthy a the plaintiff It swollen bladder which has remained in that state to date, as a result of any evidence negligence. However, he did not present the doctor's before Court to prove that he had a swollen bladder as alleged. Neither is this in itself prima facie evidence of negligence nor does it shift the In Attorney General burden of adducing evidence to prove negligence. v. Rosemary Mulenga, supra, the Supreme Court further stated that: is "It is trite that a hospital, doctor or other health care professional not the harm a patient might suffer. They are only liable for all the harm or injury that results from their deviating liable for all -J23- :..'I~.' doctor or health care from the quality of care that a competent provider would normally provide in similar situations. The injury may be physical emotional such as constant pain, hardship, or pecuniary, loss of income, and injury that disabled the patient." In casu the doctor did not deviate from the quality of care that a competent doctor or health care provider would normally provide. The plaintiff was prescribed an antibiotic and pain killer and side effects were explained to him. DW1 and DW2 also testified that patients are usually advised to go ifthe effects worsen. Indeed the plaintiff went back back to the hospital to the hospital on 24th January, 2012, the same day of the biopsy. He was admitted and treated until he recovered and was discharged on 30th January, 2012. As afore stated the plaintiff did not call any medical evidence regarding the procedure and how it was conducted to show that the doctors were negligent in the manner they attended to him. In my considered view, that was the only way the plaintiff could have established whether the biopsy was botched as alleged or whether he ought to have been admitted at the hospital for observation. in a medical negligence case, As stated in the case of Attorney General v. Rosemary Mulenga, the testimony of a competent supra, expert witness is necessary in order for the plaintiff to show a breach of the standard of care and also often to satisfy the causation element. Further, in Roe v. Ministry of Health, supra, Lord Denning stated that "a proper to the sense of proportion I cannot be in which hospitals and doctors have to work". conditions oblivious of the environment and conditions prevailing at UTH in that If the doctors had to admit every patient the hospital even where standard practice does not so demand, as the case was for the plaintiff, the situation would worsen. The plaintiff herein was advised to return to the hospital if complications worsened. is congested. to have requires regard us -)24- :. "."';' ... •• about the parties' attempt PW3 insisted the plaintiff. OWl denied ever admitting Instead of caIling expert evidence the plaintiff opted to call his relative, at an ex curia PW3, who mainly spoke settlement which did not materialise. the doctor that admitted that he did not do what he was supposed to do and agreed to compensate to an ex curia to prove negligence settlement. Again this does not help the plaintiff and discussions to this court. The plaintiff has to prove his claim of negligence on a balance of by adducing evidence. PW2's testimony was equally not probabilities case. She was not present when the of much assistance doctor biopsy was to calm him down because he was apologised to the plaintiff liability when he said sorry to angry and not She, however, in order that he was admitting at ex curia settlement are of no importance to the plaintiffs conducted. explained that the him. As the record stands, DW2, an expert of 20 years' experience the only medical opinion available was that of I in urology whose testimony have accepted. I find that the plaintiff has not discharged In view of the foregoing, onus which fell upon him to establish the negligence of the doctor. conclusion I find that Dr. Kasoma was not negligent when he attended to the plaintiff in that by using KYgel to reduce pain and numb the area where he was collecting the sample, which is the purpose of the local and anaesthesia, current skilled urologist. in conformity with accepted, and competently of a reasonable he acted approved expected practice the In counsel's on the plaintiffs I wish to comment the plaintiff could invoke the doctrine of res ipsa loquitur. Res ipsa loquitur is Latin translating 'the thing speaks for itself as being an occurrence which cannot normally note that not only was res ipsa loquitur not pleaded, view that I negligence. I am of the firm of this case where it cannot be invoked in the circumstances to mean literally, happen without submission that -J25- • 'i" • Transport to displace in appropriate circumstances, is then for the defendant and Eagle Charalambous that circumstances the facts established it to argue by inferential aids the plaintiff allow the inference of negligence. reasoning In those this prima facie inference by means of an explanation. See Clerk & Lindsell on Torts Phirj(16) where the supreme cause or alleges particulars plead res ipsa loquitur negligence, this doctrine of res ipsa loquitur. I opine that that do not normally occur in the absence of negligence and on proof of is a prima facie those facts, there case before me case of negligence. This is not the case in the plaintiffs case for which the doctrine of res now. Thus, this is not an appropriate as well. Since the plaintiff gave particulars case for him to invoke there are certain happenings Limited v. Gideon if the plaintiff knows the for him to of the the Court could probably is not an appropriate it is inappropriate court held that of negligence, find that ipsa loquitur may be invoked. In sum, I find that negligence against balance of probabilities. defendant, the plaintiff has failed to establish a case of medical on a the defendant dismiss his case with costs to the he was treated, in the manner I therefore, to be taxed failing agreement. Delivered at Lusaka this.?I:;r?:.day oLO.e£'.r. ...., 2016. (Fl!Jda;o?if/ J. Z. MULON OTl HIGH COURT JUDGE .)26.