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High CourtPartially Allowed

BO (a minor) suing through his next friend DOO v Dr. Nathan Khamala & Aga Khan University

High Court of Kenya
27 February 2020
4,736 words in judgment
View original judgment Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Medical negligence leading to permanent injury can result in significant damages against both the doctor and the hospital.

What this practically means

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Executive summary

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The plaintiff, a minor suing through his next friend, claimed against Dr. Nathan Khamala and Aga Khan University for negligence in the treatment of a fractured left forearm sustained on 31st January 2009. He alleged that after admission and application of a plaster of paris, he developed complications diagnosed as Volkmann's Ischaemic Contracture requiring two corrective surgeries at Kenyatta National Hospital, leaving him with permanent incapacity. The defendants denied involvement in the treatment, denied negligence, and pleaded contributory negligence. The plaintiff called three witnesses, including a hand and orthopaedic surgeon who opined the compartment syndrome resulted from a tight plaster of paris which should have been removed promptly and replaced initially with a half plaster; the defendants called no witnesses, relying only on written submissions. The court framed six issues and found, on the treatment records produced (including by the defendants), that the 1st defendant attended the plaintiff and owed him a duty of care, which was breached by application of a full plaster causing compartment syndrome degenerating into Volkmann's Ischaemic Contracture with 50% permanent incapacity assessed by two specialists. Relying on the principle that submissions cannot replace evidence, the court held the plaintiff had proved his case on a balance of probability and entered judgment against the defendants jointly and severally. It awarded Kshs. 1,500,000 general damages, refused aggravated damages for lack of proof, awarded costs to the plaintiff, and granted interest on general damages from the date of judgment until payment in full.

Key legal issues

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01

Whether the 1st defendant attended to and owed a duty of care to the plaintiff

Holding

Treatment notes produced, including plaintiff's exhibit 5 and defendant's exhibit 1, confirmed the plaintiff was admitted on 31st January 2009, attended by Dr. Khamala, and continued at the hospital's orthopaedic clinic under him; a duty of care arose once he agreed to treat the plaintiff.

Reasoning

The court relied on treatment records, some produced by the defendants themselves, showing the attending doctor was the 1st defendant and that the plaintiff continued in the 2nd defendant's orthopaedic clinic under Dr. Khamala. It applied authorities establishing that a doctor who agrees to treat a patient assumes a duty of care, and that a hospital is vicariously liable for its staff's negligence.

p. 3
02

Whether the defendants breached the duty of care

Holding

Breach established: a full plaster of paris was applied instead of a half plaster (back slab), causing compartment syndrome that degenerated into Volkmann's Ischaemic Contracture with 50% permanent incapacity.

Reasoning

PW1, a hand and orthopaedic surgeon, opined the plaintiff suffered severe compartment syndrome due to a tight plaster of paris; doctors ought to have removed the plaster promptly upon complaints of pain and should have applied a half plaster for three days before a full one. This unchallenged evidence, corroborated by Dr. Tanga Audi's report and Dr. Wambugu's report, established the treatment was not satisfactory.

p. 5
03

Effect of the defendants' failure to call witnesses

Holding

The defendants argued by submissions only; submissions cannot replace evidence, so their defence failed.

Reasoning

The defendants chose not to call witnesses and relied on written submissions. Citing Daniel Toroitich Arap Moi vs. Mwangi Stephen Mureithi & Another, the court held submissions do not constitute evidence at all and cannot come to the aid of a party who has failed to prove their case by evidence.

p. 5
04

Quantum of general damages

Holding

Kshs. 1,500,000 awarded for pain, suffering and loss, guided by comparable awards and the 50% permanent incapacity.

Reasoning

The court considered comparable authorities cited by both sides, including George Ngige Njoroge (Kshs. 3 million for 40% incapacity) and Amazon Energy (Kshs. 2.5 million for 50% incapacity). Taking into account the plaintiff's youth and lifelong 50% permanent incapacity, but noting the injuries in George Ngige were more serious, Kshs. 1.5 million was held reasonable.

p. 6

Legal principles established

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  • A duty of care arises once a doctor or health care professional agrees to diagnose or treat a patient
  • A hospital is vicariously liable for the negligence of its staff including doctors and nurses
  • Submissions cannot take the place of evidence

Court orders

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  1. 1.Judgment entered against the defendants jointly and severally
  2. 2.General damages of Kshs. 1,500,000 awarded for the injuries
  3. 3.No award of aggravated damages
  4. 4.Costs of the suit awarded to the plaintiff
  5. 5.Interest on general damages from the date of judgment until payment in full

Authorities

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Cases cited (15)

  • Ricarda Njoki Wahome (suing as the administrator of the estate of the late Wahome Mutahi (deceased) vs. Attorney General & 2 others
    (2015) eKLR

    Duty of care arises once a doctor agrees to diagnose or treat a patient; hospital authorities liable for staff negligence

  • Jimmy Paul Semenya vs. Aga Khan Hospital & 2 others
    (2006) eKLR

    Duty of care between patient and doctor/hospital; standard of reasonably competent practitioner

  • Blyth vs. Birmingham Co.
    (1856) 11 Exch 784

    Definition of negligence as omission or commission of what a reasonable man would do or not do

  • M (a minor) vs. Amulega & Another
    (2001) eKLR 420

    Hospital authorities under same duty as doctors; vicarious liability for staff negligence

  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Mureithi & Another
    (2014) eKLR

    Submissions cannot take the place of evidence

  • Osman Mohammed & Another vs. Saluto Bandit Mohamud
    ca. 30/97

    Damages must be within limits set by decided cases and the Kenyan economy

  • Kigaragari vs. Aya
    (1982-1988) KAR 768

    Large awards passed on to the public through increased costs

  • Maseno Ngala & another vs. Dan Nyanamba Omare
    CA. 320 of 2002

    Commending Lord Morris' guidance on reasonable, moderate and comparable awards

  • Rahima Toyab & Another vs. Ann Mary Kinaru
    (1987-88) KAR 80

    Source of Potter JA's advice to trial judges on assessment of damages

  • West (H) & Sons Limited vs. Shepherd
    (1964) A.C 326

    Money cannot restore a shattered physical frame; awards must be reasonable and moderate

  • Hilda Atieno Were vs. Board of Trustees Aga Khan Hospital Kisumu & Another
    (2011) eKLR

    Comparable award of Kshs. 1,500,000

  • Hellen Kimana vs. PCEA Kikuyu Hospital
    (2016) eKLR

    Comparable award of Kshs. 2 million for pain and suffering

  • George Ngige Njorioge vs. Attorney General
    (2018) eKLR

    Kshs. 3 million award for multiple injuries with 40% permanent incapacity

  • Board of Trustees Anglican Church of Kenya Diocese of Marsabit vs. Chukulise Roba Halakhe
    (2019) eKLR

    Defendants' comparable award of Kshs. 2 million for 30% incapacity

  • Amazon Energy Limited vs. Magdaline Nthenya Mathias & Another
    (2019) eKLR

    Kshs. 2,500,000 award where permanent incapacity was 50%

Jurisdiction invoked
Original civil jurisdiction of the High Court in a medical negligence claim (plaint dated 6th July 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "BO (a minor) suing through his next friend DOO v Dr. Nathan Khamala & Aga Khan University", Case Analysis (2020). . Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.