Rosemary Bwalya v ZCCM and Ors (SCZ 164 of 2005; SCZ 1 of 2005) [2005] ZMSC 1 (20 April 2005)

IN THE SUPREME COURT FOR ZAMBIA SCZ APPEAL NO. 164/03 SCZ JUDGMENT NO.l OF 2005 (1) HOLDEN AT LUSAKA CIVIL JURISDICTION ROSEMARY BWALYA AND ZAMBIA CONSOLIDATED COPPER MINES LIMITED MUFULIRA DIVISION MALCOM WATSON HOSPITAL DR. Y. C. MALIK APPELLANT 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT Coram: Sakala, CL, Mambilima and Chitengi JJS 20th July, 2004 and 20th April, 2005 For the Appellant: For the Respondents: Mrs. I. M. Kunda of George Kunda & Company Mr. G. S. Cornhill of Fidelity Chambers. * JUDGMENT Sakala, CJ., delivered the judgment of the Court. Cases Referred to:- 1. 2. 3. Thake V Maurice (1986) 1ALL ER 510 Eyre v measday (1986) ALL ER 488 Boiam V Friern Hospital Management Committee (1957) 2ALL ER 118 4. Roe z Minister of Health (1954) 2 QB66 For convenience, the Appellant will be referred to as the Plaintiff and the 1st Respondent as the 1st Defendant, the 2nd Respondent as the 2nd Defendant and the 3rd Respondent as the 3rd Defendant, which designations they were in the (2) court below. This is an appeal against the Judgment of the High Court dismissing the Plaintiff's claim for damages for professional negligence against the 1st, 2nd and 3rd Defendants on the ground that the Plaintiff had a miscarriage prior to her having the unplanned pregnancy and had not consulted a gynaecologist at the time. The further claim for an order against the Defendants for medical care during and after pregnancy and free medical care for the baby up to the age of five years was also dismissed. The particulars of the claims, as set out in the writ and the statement of claim, are: damages for pain and sufferings as a result of the failed Bilateral Tubal Ligation (BTL) operation and the subsequent BTL, damages for mental distress and shock, damages for medical expenses and incidental costs, damages for breach of duty of care by the 1st and 2nd Defendants in carrying out the BTL operation, damages for maintenance of unplanned for child, damages for loss of promotional opportunities as a result of the pregnancy, and damages for loss of training opportunity which the Plaintiff was supposed to under go on the sponsorship of her employers. Although the court found that the Plaintiff failed to prove her claims on the balance of probability; it accepted that the Plaintiff had travelled to the hospital, thereby incurring costs. The court awarded her K600,000.00 transport costs and K1.5million for mental distress to be paid by the 1st and the 2nd Defendants. The Defendants did not cross-appeal against the awards of transport costs and mental distress. (3) The material facts, as can be ascertained from the pleadings and the oral evidence, were not in serious dispute. The Plaintiff, who is a married woman, under went an operation, commonly referred to as Bilateral Tubal Ligation (BTL) in May 1997 at the Malcom Watson Hospital in Mufulira belonging to the 2nd Defendant. It was not clear as to who conducted the operation. The Plaintiff, however, sued the 3rd Defendant as the Doctor who conducted the operation. But on the evidence, the court accepted that DW1 and not the 3rd Defendant must have conducted the operation, but that the 3rd Defendant could have been a member of the team that carried out the operation. The fact that the Plaintiff underwent a BTL operation was not in dispute. The BTL operation, carried out in May, 1997, was intended for the Plaintiff not to have any more children. However, in August 1999, the Plaintiff had a miscarriage. And in October/November 1999, after a thorough medical examination, the Plaintiff was found to be about five weeks pregnant. In June 2000, she gave birth to a child through a caesarian operation section. Subsequently, she underwent another BTL operation but at a different hospital. The Plaintiff gave evidence in support of her claims. She did not call any witness, independent or otherwise. She testified that she was making a claim for having a child after under going an operation for sterilization. She explained that before she had the operation, she was pregnant to her seventh child. During the period of the pregnancy, she used to attend Malcom Watson Hospital in Mufulira, where she was being attended to by Doctor Malik, the 3rd Defendant, who was her specialist resulting into a patient Doctor relationship. (4) The Plaintiff explained that she told the Doctor that after that pregnancy, she was not in a position to have children because of her age at 43 years. Following the discussion with the Doctor, she decided to go for family planning. The Doctor advised her that the best method was for her to undergo a BTL operation. The Doctor explained to her that the operation involved cutting one or two tubes from the ovaries and then filling them. She was satisfied with the explanation as long as she did not get pregnant. The Plaintiff further testified that on 14th May, 1997, three weeks after delivery, she was operated. She went for review in June. This was after a month. According to the Plaintiff, during the review, the 3rd Defendant confirmed that she would never have children again. However, two years later, she conceived again. She went back to the hospital. She asked for Dr. Malik. She gave a note from a clinic. The reaction of Doctor Malik to the note was that it was not true that she could be pregnant. He conducted his own tests. He confirmed that she was pregnant. The Doctor told her that he was going to admit her and terminate the pregnancy. She told him that, as a Christian, she could not allow him to kill a human being. The Plaintiff also testified that the pregnancy she had was something she could not explain. During this pregnancy, she was very sick. The doctors could not wait for the pregnancy to be nine months. She gave birth earlier than anticipated. She explained that her sickness during the pregnancy cost her, her job. Under protracted cross examination, the Plaintiff admitted that she had a miscarriage after the BTL before the pregnancy, the subject of these proceedings. DW1, Dr. Verma, a gynecologist, testified on behalf of the Defendants that according to .the notes kept at the Hospital, She is the one who conducted the operation on the Plaintiff although she could not recall having done so. She explained that the decision to have the operation was made by the patient after counseling her and the husband. (5) DW1 further testified that it was possible for a patient who has had a BTL operation to conceive. She explained the procedure of conducting a BTL operation, which involves cutting of fallopian tubes. She explained that after a week, the results from the laboratory are received confirming that what was cut was a fallopian tube. She stated that this confirmation was received in respect of the Plaintiff. DW1 also explained that the failure of the operation can lead to the tubes joining again. She stated that four reasons can cause failure. These can be:- a fistula (hole) in the cut end of the tube; keeping the tube open whereby an egg and a sperm can pass through; the tube opening depending on the quality of the suture (if it is not strong); infection whereby the suture gets dissolved; and the blocked areas re-uniting. The doctor testified that it is important to make sure that the suture is not an expired one. She explained that in the Plaintiff's case, only the right tube was cut because the left tube had been removed in an earlier operation. This was discovered before the operation. DW1 also explained that the left tube had been removed due to an ectopic pregnancy, which was more or less like having a BTL operation and could rejoin. The doctor further explained that if pregnancy occurs within the first year of the operation, then failure can be due to the quality of the suture or the operation technique. If the pregnancy occurs after one or two years after the operation, then it is a natural failure. According to the doctor, if the patient comes back with a pregnancy, they explain to the patient that this is not unusual and they recommend termination of the pregnancy. The doctor further explained that it was possible to know which one of the tube, left or right led to the pregnancy by (6) using x-ray. In cross examination, the doctor testified that the written notes at the hospital showed that she is the one who did the operation and not Dr. Malik, the 3rd Defendant. She explained that during her experience, she has never had any BTL operation failure. She denied negligence or breach of professional care in conducting the BTL operation on the Plaintiff. After considering the pleadings, the facts not in dispute and the evidence on record, the learned trial Judge believed that DW1 and not the 3rd Defendant conducted the operation on the Plaintiff on the basis of the notes kept at the hospital authored by her. The trial Judge also accepted that the 3rd Defendant was the Plaintiff's doctor who must have been present during the operation. But did not do the actual operation. The trial Judge observed and noted that the Plaintiff had tough time during cross-examination in answering the question as to whether she had a miscarriage or not in 1999; but only admitted on being prodded. The court found that the Plaintiff had a miscarriage prior to her having the unplanned pregnancy, the subject of the action. The court pointed out that the Plaintiff having found that she had a miscarriage in 1999, before the unplanned pregnancy, the subject of this action, she should have been made aware that "something was amiss" considering that she had undergone the BTL operation in 1997 and should have taken precautions to avoid another pregnancy. The court further observed that the fact that the Plaintiff had a miscarriage meant that the BTL operation had failed and that despite the BTL operation, she was back to her original position of being able to conceive. According to the court, this was the stage that she should have done something. This is the time she should have gone back to Malcom Watson Hospital to inform them what happened; but instead she only went back after she fell pregnant the second time. (7) On the evidence and the finding of a miscarriage, the court held that the unplanned pregnancy, the subject of this action, could have been avoided had the Plaintiff used wisdom to consult the gynaecologist at the time she had a miscarriage. The court found that the action based on the unplanned pregnancy for damages for pain and suffering, for labour pains for the second BTL operation and for costs for raising the child born as a result of the unplanned pregnancy could not stand as the Plaintiff should have taken precautions after the miscarriage to ensure that she does not become pregnant again. The court pointed out that she could not put the blame on the Defendants for whatever sufferings she went through after the miscarriage she had in 1999. The court was persuaded to take this view by the observations of the House of Lords in Thake VMaurice (1) in which Neill LJ pointed out that no reasonable person would expect a responsible medical man to give a guarantee on account that medicine, though a highly skilled profession, is not generally regarded as being an exact science. The court commented that when the Plaintiff went back to the hospital in her pregnant state, they should have attended to her as the people who conducted the operation. The court observed that as to which tube caused pregnancy is a matter of speculation. The trial court condemned the attitude of the hospital staff. According to the court, the Plaintiff travelled to Mufulira for nothing. The (8) court found the Defendants liable for damages for mental distress and for costs for travelling to and from Mufulira and awarded the Plaintiff K600,000 transport costs and KI.5 million for mental distress. The court, however, concluded that the Plaintiff failed to prove damages for unplanned pregnancy. Hence this appeal by the Plaintiff. As already observed, there is no cross- appeal. There are three grounds of appeal: that the trial judge erred in law in failing or omitting to make a finding of negligence against the Defendants, when the three elements that determine the existence of negligence were present; that the trial Judge erred in holding that it was Dr. Verma who conducted the operation and not the 3rd Defendant and at the same time accepting the evidence that Dr. Malik was the Appellant's doctor; having glossed over material evidence of the fact that the notes from the hospital purportedly authored by Dr. Verma were not even exhibited before the court and she could not even recall having conducted the operation; and that the trial Judge erred in law in omitting to consider the plea of res ipsa loquitur. Both learned counsel relied only on written heads of argument filed with the court. The gist of the written heards of argument by Mrs. Kunda on ground one is that it was not in dispute that the Defendants owed a duty of care to the Plaintiff when they undertook to perform the operation; that the Plaintiff approached them on the basis of their possessing special skill and knowledge and assured by the doctor attending to her, Dr. Malik, that she would never get pregnant if she underwent a BTL operation. Paragraph 965 under the heading "Nature of Duty" page 577 of Charlesworth on Negligence, 6th Edition was cited in support of these arguments. It was submitted that the doctor who performed the operation did not use due care and competence when she performed the operation and the Defendants were therefore in breach of their duty to ensure that the Plaintiff did not get pregnant again as assured by Dr. Malik. (9) Responding to the arguments and submissions on ground one, Mr. Cornhill, in his twenty page written heads of argument supported the dismissal of the Plaintiff's claims, contending that the ingredients of the Tort of Negligence namely; existence of legal duty, breach of duty, damage to Plaintiff, causal link between breach and damages were not proved. Counsel pointed out that the law lays down the scope and nature of the legal duty imposed on professionals, including medical doctors. He referred us to the case of Thake VMaurise (1) in which the House of Lords had the occasion to adjudicate on the scope of duty of care owed to a patient by a medical practitioner in a sterilization case in which Lord Justice Mourse held that although the object of the operation was to render Mr. Thake sterile and incapable of parenthood, the implied warranty on the part of the medical practitioner was to exercise the ordinary skill and care of a competent surgeon, and not what come may, the objective would be achieved. Counsel also cited the case of Eyre VMeasday(2) \n which Slade L. J. held that the Defendant's implied duty was to conduct the operation with reasonable skill and care; it was not to ensure that the Plaintiff never conceived again. Mr. Cornhill submitted that the defendants' duty to the Plaintiff was to exercise the ordinary skill and care in the conduct of the sterilization operation. It was not to ensure that the Plaintiff would never conceive again. On the averment in the statement of claim and the Plaintiff's evidence that Dr. Malik, the 3rd Defendant, recommended a BTL operation because she would never be able to have children again, Mr. Cornhill contended that no evidence was adduced from the 3rd Defendant but that DW1 testified that it was unlikely in the extreme that such an undertaking could have been given by the 3rd Defendant because of the inherent possibilities of failure from both operative and natural causes. Citing Neil LJ. in the Thake case on the issues of a warranty, counsel submitted that in the absence of independently verifiable evidence on the alleged assurance, the court should uphold the trial judge's decision to adopt Neil LJ's reluctance to find the existence of a hundred percent guarantee by the 3rd Defendant to the Plaintiff. (10) On the representation of irreversibility as claimed by the Plaintiff, Mr. Cornhill conceded that the Defendants admitted telling the Plaintiff that the operation was irreversible but submitted that as held in Eyre V Measday, (2) the term irreversibility in a sterilization operation, did not amount to a guarantee but that the particular operative procedure cannot be reversed medically. In his detailed written submissions on ground one, Mr. Cornhill also submitted on each of the instances of breach of duty as particularized in the statement of claim and the alleged damage and loses as well as the various expenses incurred by the Plaintiff. On account of the view we take of this appeal, we do not intend to delve into all the written arguments and submissions on ground one. Suffice it to point out that Mr. Cornhill concluded his arguments on ground one by submitting that the ground should be dismissed with costs because the Plaintiff failed to prove breach of duty and causation of the alleged damages. We have addressed our minds to the evidence on record, the judgment of the trial court and the submissions by both learned counsel as they relate to ground one of appeal. The case for the Plaintiff was grounded on professional negligence by a medical doctor in the performance of a sterilization operation. The fact that the Defendants owed the Plaintiff a duty in the performance of the (11) operation was common cause. What was in dispute was whether the Defendants breached this duty. This was the crux of the whole case. The particulars of negligence and or professional duty on the part of the 3rd Defendant as pleaded in the statement of claim consisted of:- (a) making representations and assurances to the Plaintiff that the said operation was full proof and would ensure that the Plaintiff did not conceive; (b) making or implied to have made representations that the 3rd Defendant possessed the necessary skills and qualifications to ensure that he performed the said operation; (c) handling the said operation improperly whereby the Plaintiff's ability to conceive was not removed as the 3rd Defendant had represented to the Plaintiff; (d) handling the said operation carelessly on the part of the 3rd Defendant; (e) failing to take any measures whereby the Plaintiff did not fall pregnant after undergoing the said operation; (f) failing to conduct the said operation in a manner that is common in the medical profession whereby patients who undergo such operations do not become pregnant again; and (g) as much as possible the Plaintiff will relay on the maxim res ipsa (12) loquitur The evidence in support of these particulars of negligence of a medical doctor came from the Plaintiff herself. According to the statement of claim, the Plaintiff was, at the material time, a married woman, a mother of seven children and a Secretary by occupation. She did not adduce any expert medical evidence for comparison purposes on the skills of performing a BTL operation by a medical doctor in order to determine the extent of the breach. We agree with the principles of law in the decided cases relied upon by both learned counsel. But the test that has gained wide acceptance in medical cases as the proper approach in such cases was set out in the case of Bolam VFriern Hospital Management Committee(3). In this connection, the learned authors of Clerk and Lindsell on Tort, 16th edition from paragraph 11-12, under the heading Medical Negligence: The Bolam test state as follows:- "The standard of care demanded of medical practitioners is that required of any professional person and is succinctly stated by McNair J. in Bolam V Friern Hospital Management Committee. 19The Bolam test can be divided into two parts: (1) "The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not profess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of a competent man exercising that particular art. (13) That art is judged in the light of the practitioner's speciality21 and the post that he holds.22 Thus n...a doctor who professes to exercise a special skill must exercise the normal skill of his speciality.'223 A general practitioner is not expected to attain the standard of a consultant obstetrician delivering a baby. But if he elects to practise obstetrics at all he must attain the skill of a genera! practitioner undertaking obstetric care of his own patients.24 And in all cases general practitioners and other doctors must exercise care in determining when to refer a patient for a consultant's or other second opinion.25 (2) In determining whether a Defendant practitioner has fallen below the required standard of care, the Boiam test looks to responsible medical opinion. A practitioner who acts in conformity with an accepted, approved and current practice is not negligent "....... Merely because there is a body of opinion which would take a contrary view. We have given very careful consideration to the evidence, the submissions and arguments on ground one. It is for the Plaintiff to prove the allegations of negligence as pleaded. The point at hand, therefore is whether or not the Plaintiff had proved, on a balance of probability, that the Defendants who performed the BTL operation were negligent. Here the Boiam test becomes relevant. The negligence had to be established in accordance with the generally accepted principles and tests for the determination of professional liability with specific reference to alleged medical negligence. In these cases, it is usual and normal to expect that the Plaintiff will have expert evidence which supports that any error made was a negligent error. It is, therefore, of the highest importance in such cases for the Plaintiff to assemble competent opinion. (14) We agree that the defendants owed a duty of care to the Plaintiff when they undertook to perform the BTL operation. We also agree that the Plaintiff approached the Defendants on the basis of their possessing special skill and knowledge and perhaps assured her that she would never get pregnant again if she underwent the BTL operation. But the standard that was required in the performance of the BTL operation was that of the ordinary skilled doctor exercising to have that special skill. It was not a question of professing the highest expert skill. Thus, in Thake VMaurice, Neil L. J., discussing the issue of warranty in the House of Lords had this to say:- " Furthermore, I do not consider that reasonable person would have expected a responsible medical man to be intending to give a guarantee. Medicine although a highly skilled profession is not generally regarded as an exact science. The reasonable man would have expected the Defendant to exercise all the proper skill and care of a surgeon in that speciality, he would not in my view have expected the Defendant to give a guarantee of one hundred percent success.,d0 We agree with the trial judge that the fact that the Plaintiff had a miscarriage and then an unplanned pregnancy must mean that the BTL operation failed. However, the evidence by the Defence, given by DW1, a gynaecologist was that four reasons can cause failure: a fistula in the cut end of the tube; tube opening depending on quality of the suture; an infection and the suture dissolving, and the blocked areas uniting. We are satisfied that whatever caused the failure, the evidence does not suggest that the failure was as a result of professional negligence. Indeed, the clear evidence of DW1 was to the effect that if a BTL failure occurs within a year, it can be due to a suture or the quality of operation. But if it occurs after two years, as was the case here, it could be due to natural causes. (15) The learned trial judge, in this particular case and on the facts established, was trully on very firm ground when she did not make a finding of negligence against the Defendants. There was nothing to suggest wrong doing and certainly no evidence supported the particulars of negligence which had been pleaded. From our discussion on ground one, this appeal cannot succeed. On ground two, that is that the trial Judge erred in holding that the operation was done by DW1 and not the 3rd Defendant, we agree with the observations on behalf of the Defendants that it is difficult to appreciate this ground of appeal moreso that the BTL operation at the 2nd Defendant's premises was not in dispute. We find no merit in this ground of appeal. On the third ground based on res ipsa loquitur, the brief submission on behalf of the Plaintiff was that the unexplained fact for the sudden change of doctor who carried out the operation, the undisputed fact that the Plaintiff became pregnant within two years after the operation enabled the Plaintiff to rely on the doctrine of res ipsa loquitur but that the learned trial Judge omitted to consider this plea and did not even refer to it in her judgment. In response to the submission, Counsel for the Defendants pointed out that no effort was made to elaborate the doctrine and its applicability. Counsel cited the case of Roe V Minister of Heaith(4). in support of his submissions. In that case, Morris L. J. held that the maxim possesses no magic qualities nor has it any added virtue other than brevity as there are certain things that do not occur in the absence of negligence. Counsel pointed out that the doctrine applies to clear cut cases but inapplicable where more than one inference can be logically raised. Counsel contended that on the evidence of DW1, potential inferences were raised which were not contested. (16) While we agree that the learned trial judge did not consider the plea of res ipsa loquitur, we accept that the doctrine requires an umbiguous story for it to apply. The multiplicity of the potential explanations for the conception in the present case, ruled out its applicability. The third ground of appeal cannot also succeed. All the three grounds of appeal having collapsed, the appeal is dismissed. Each party will bear its own costs. E. L. Sakala CHIEF JUSTICE I. C. Mambilima SUPREME COURT JUDGE P. Chitengf— SUPREME COURT JUDGE /rmc