BO (a minor) suing through his next friend DOO v Dr. Nathan Khamala & Aga Khan University
The bottom line
#Medical negligence leading to permanent injury can result in significant damages against both the doctor and the hospital.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st defendant attended to and owed a duty of care to the plaintiff
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.
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.
Whether the defendants breached the duty of care
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.
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.
Effect of the defendants' failure to call witnesses
The defendants argued by submissions only; submissions cannot replace evidence, so their defence failed.
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.
Quantum of general damages
Kshs. 1,500,000 awarded for pain, suffering and loss, guided by comparable awards and the 50% permanent incapacity.
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.
Legal principles established
#- 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
#- 1.Judgment entered against the defendants jointly and severally
- 2.General damages of Kshs. 1,500,000 awarded for the injuries
- 3.No award of aggravated damages
- 4.Costs of the suit awarded to the plaintiff
- 5.Interest on general damages from the date of judgment until payment in full
- Jurisdiction invoked
- Original civil jurisdiction of the High Court in a medical negligence claim (plaint dated 6th July 2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.