Case Alert: Doctor Negligence – A Case Study of Bungoma County Referral Hospital -Vs- JOO & Others
JOO was due to deliver and made a trip to Bungoma County Referral hospital, where upon being seen by the doctor, she was injected with medicine to induce labour and placed on a shared bed in the labour ward. She was thereafter ignored by all the nurses. When her labour pains increased, she painfully made her way to the delivery room where she found all the three available beds occupied.
The “Abuser Pays’ principle is derived from the long standing Maritime Law principle “The polluter pays”. The latter principle was developed in response to the rampant pollution that would occur in the high seas. Under the principle, the party, be it a nation or private individual, who was responsible for polluting the high seas, would be liable to cover the costs of clearing up the waste, as well as the costs of mitigating the negative impact arising from said pollution.
Justice Kiage in the present case similarly coined the “Abuser pays” principle in holding that the party whose actions amount to discrimination and abuse of individual rights, should pay compensation for the harmful outcome of their conduct.
Summary
The 1st Respondent, JOO was due to deliver and made a trip to Bungoma County Referral hospital, where upon being seen by the doctor, she was injected with medicine to induce labour and placed on a shared bed in the labour ward. She was thereafter ignored by all the nurses. When her labour pains increased, she painfully made her way to the delivery room where she found all the three available beds occupied. When she tried making her way back to the labour ward, she collapsed and gave birth on the floor, alone and neglected. Upon regaining consciousness, she was abused, mocked and slapped by irate nurses who scolded her for delivering on the hospital corridor. She was also forced to carry her un-severed placenta into the delivery room to be expelled. Throughout the whole ordeal, she received no assistance from the nurses and medical staff or medication to ease her pain. A video of the the entire incident was taken by an anonymous staff member at the hospital and aired on KTN News.
After recovering, the mother sued the hospital alongside Bungoma county government and the CEC in charge of Health for Bungoma County for discrimination and degrading and inhumane treatment. Justice Ali-Aroni awarded her Kshs 2.5 Million in damages for the violation of her rights.
The Appellants, dissatisfied with Justice Aroni’s findings, preferred an appeal at the court of Appeal before Justices Kiage, Ngugi and Tuiyott who emphatically upheld the award.
The Appellants took issue with the some inconsistencies in JOO’s testimony as compared to the video clip of the incident. The court therefore undertook an analysis of the required standard for proving the violation of constitutional rights.
The judges relied on the Court of Appeal’s standard in the Mumo Matemu Case wherein the court stated :
“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.”
The court held that a party alleging that constitutional rights had been violated need not prove the claim with perfect accuracy, but only needed to show that its rights had indeed been violated.
Conclusion
In the present case, the court held that the minor inconsistencies notwithstanding, there was sufficient unrefuted evidence, including the video, witness testimony and JOO’s testimony, to prove that indeed her right to dignity and humane treatment had been violated
The judges therefore found that since the Appellants were liable for abusing JOO’s constitutionality guaranteed rights, it was in order that they pay the Kshs 2.5 Million as compensation.
Key Insights at a Glance
A party responsible for the abuse or failing to prevent the abuse is liable to pay compensation.
A claim for the violation of human right need not be pleaded with 100% accuracy provided there is ample evidence that can point to the alleged violation
