INTRODUCTION
BACKGROUND
The 1st Plaintiff was admitted at the Hospital on or about the 13th September 2006 to the 16th of September 2006 for medical care for a Pelvic Endometriosis.
The 1 st plaintiff received treatment and it is as result of the care and treatment that she received that she came to court almost two decades back seeking redress from this court.
The matter has been in the justice system all these years but has finally been heard bringing to a close the plaintiffs’ search for justice in our courts.
The 1 st plaintiff alleged in the plaint that she learnt much later after treatment that the said Pelvic Endometriosis was as a consequence of the negligence of the 1st Defendant during a hysterectomy procedure wherein the 1st Plaintiff delivered the Uterus and ovaries per birth canal.
The plaintiffs further alleged that at all material times the 1st Defendant held himself out as an experienced, skilled and competent Consultant Gynecologist, to provide to the 1st Plaintiff Gynecological consultation and advisory services over the Pelvic Endometriosis issue.
The plaintiffs further claimed that at all material times the 2nd Defendant held himself out to be experienced, skilled and competent as a Consultant Urologist and agreed, for reward, to provide to the 1st Plaintiff with consultation and advisory services subsequent to the Pelvic Endometriosis treatment offered by the 1 st Defendant.
According to the plaintiffs on 14th of September 2006, the 1st Defendant carried out the Pelvic Endometriosis on the 1st Plaintiff at the Hospital and due to the negligence of the 1st Defendant, the 1st Plaintiff's bladder was damaged resulting in a Vesico-Vaginal Fistula.
The matters set out above were caused solely by the 1st Defendant in breach of contract and negligence in the course of treatment to the 1st Plaintiff.
The plaintiffs further alleged that the 1st Defendant was negligent in that he:
(a) Unskilfully performed a hysterectomy procedure.
(b) Unskilfully performed a Pelvic Endometriosis procedure.
(c) Unskilfully performed an operation on 14th September 2006.
(d) Failed to exercise reasonable care in carrying out the operation on14th September 2006;
(e) Knew or ought to have known that he was not qualified properly or at all to carry out the operation on 14th of September 2006;
(f) Failed to consult or engage a Urologist during the operation on 14th
September 2006;
(g) Wrongfully discharged the 1st Plaintiff from hospital after the operation on 16th September 2006;
(h) Carried out in breach of contract negligent treatment and operations on 14th September 2006;
(i) Was not qualified to practice as a medical doctor and more particularly as a urological surgeon;
(j) He failed to exercise due care and diligence in his care of the First
Plaintiff;
(k) He failed to exercise the proper skill and care commensurate with a
Doctor practising in the field of Obstetrics and Gynaecology;
(1) And the 1st Plaintiff will to the extent necessary rely on the principle of res ipsa loquitor.
The 1st Plaintiff also learnt that during the hysterectomy procedure wherein the 1st Plaintiff delivered the Uterus and ovaries per birth canal, the 1st Defendant removed the 1st Plaintiff's cervix without the 1st Plaintiff's knowledge and /or consent.
On 4th of October 2006 emergency repairs and procedures were carried out by the First and 2nd Defendants in an attempt to remedy the Vesico Vaginal Fistula, However, notwithstanding these emergency repairs, the Vesico Vaginal Fistula continued.
The plaintiffs further contended that the matters set out above were caused solely by the First and 2nd Defendant's breach of contract and negligence in the care and treatment of the 1st Plaintiff.
PARTICULARS OF BREACH OF CONTRACT OF THE FIRST AND 2 ND DEFENDANTS
14. The 1 st and 2nd Defendants were in breach of contract in that:
a. They failed to exercise reasonable care and skill in the provision of professional advice and treatment in respect of a special skill which they had held themselves out to possess.
b. Unskilfully and in breach of contract performed an operation on 4th
October 2006.
c. Failed to exercise reasonable care in carrying out the Second operation
on 4th October 2006;
d. Knew or ought to have known that the 1st Defendant was not qualified
properly or at all to carry out the original operation;
e. The 1st Defendant failed to consult or engage a Urologist during the
original operation;
f. Carried out in breach of contract further treatment and operations on 4th of October 2006.
g. The 1st Defendant was not qualified to practice as a Urological Surgeon.
The Fist Plaintiff avers that the First, Second and 3rd Defendants were negligent and in breach of their common law and contractual duty.
PARTICULARS OF 1 st AND 2ND DEFENDANT'S NEGLIGENCE
15. The 1 st and 2nd Defendant were negligent in that they:
(a) Carried out negligent treatment and operations on the 1st Plaintiff;
(b) Failed in both operations;
(c) Failed to take reasonable care in carrying out the operation;
(d) Knew or ought to have taken a second Urologist's opinion;
(e) Treated and operated the 1st Plaintiff in an unskilful or negligent manner.
PARTICULARS OF 3RD DEFENDANT'S NEGLIGENCE AND/OR
BREACH OF CONTRACT
16. The 3rd Defendant was negligent and in breach of contract in that it:-
(a) Allowed unskilled or unqualified negligent medical practitioners to work and operate at its Hospital;
(b) Allowed an unqualified person to work and operate at its Hospital
(c) 3rd Defendant's agent or servants acted without reasonable care and skill in treatment, operation and advice to the 1st Plaintiff;
(d) 3rd Defendant's agents or servants allowed treatment, operation and advice to be carried out in a negligent manner or without reasonable care.
(e) 3rd Defendant's agent failed to exercise reasonable care and skill in the provision of professional advice and treatment in respect of a special skill which they had held themselves out to possess.
17. As a result of the matters aforesaid, the 1st Plaintiff, who was aged 32 years at the time, suffered great pain, sustained severe injury, loss and damage.
PARTICULARS OF THE 1ST PLAINTIFF'S INJURIES
(a) Persistent lower abdominal pain with tenderness;
(b) Persistent bottom/perineum pain;
(c) Damaged contracted scarred bladder;
(d) Capacity of bladder has been reduced;
(e) Severe urinary incontinence.
(f) Rupture of the vaginal wall and uterus.
(g) Severe Trauma.
(h) Recurrent urinary tract infections
18. The plaintiffs further alleged that as a result of the matters aforesaid, the 1st Plaintiff suffered and continued to suffer severe humiliation and embarrassment, emotional distress leading to depression of having to put on diapers.
19. Further, the plaintiffs alleged that the 1st Defendant removed the 1st Plaintiff's cervix without the 1st Plaintiff's knowledge and /or consent and she thereby sustained loss and damage;
PARTICULARS OF LOSS
a. Loss of the cervix;
b. Loss of ability to satisfy her husband sexually;
c. Loss of sexual enjoyment.
20. The plaintiffs claimed that subsequent to the loss and damage caused by the Defendants' breach of contract and negligence, the 1st Plaintiff was compelled to seek further specialized medical attention in South Africa and thereby incurred additional medical expenses over and above the expenses paid to the Defendants, which consideration wholly failed.
21. It was also alleged by the plaintiffs that the nature of injury inflicted on the 1st Plaintiff requires sustained and continuous medical treatment and the 1st Plaintiff claimed against the Defendants jointly and severally for the costs of future medical care to be ascertained by an inquiry at the hearing hereof.
PARTICULARS OF THE 1ST PLAINTIFF'S SPECIAL DAMAGES
Expenses on treatment and incidentals
ITEM Amount Kshs. Amount
Amounts paid to the Defendants
i
Operation Fee to 1st Defendant
100,000.00
ii
Bill to 3rd Defendant
132,000.00
iii
Anesthesiologist’s fee
35,000.00
iv
Further fee to 3rd Defendant
58,000.00
v
Further Anesthesiologist’s fee
10,000.00
vi
Operation fee to the 2nd Defendant
50,000.00
Expenses to, from and while in South Africa
i
Airfare Economy Class
USD 976
68,320.00
ii
Further airfare
USD 2250
157, 500.00
iii
Further airfare
USD 2260
158,200.00
iv
Accommodation
USD 1554
108, 780
v
Hospital Bill
26,093.84 Rands
260, 938. 40
vi
Doctor’s Fees
97,571. 36 Rands
985, 440.60
vii
Medicines
3, 510. 52 Rands
38, 145.20
viii
Doctor Consultation fee
500 Rands
5,000. 00
ix
Further Doctor’s Fee
1500 Rands
15,000. 00
x.
Taxi travelling (to and from Hospital and Clinics)
720 Rands
7, 200. 00
Xi
Cost of Future medical care
5,000,000
TOTAL
Kshs. 7,207, 524.20
22. The 1st Plaintiff went on to claim that she has further suffered social stigma as a result of the matters aforesaid as her friends and relatives have looked down upon her with suspicion as being fragile and unclean arising from the post -surgery complication and she has further been shunned by friends and relatives who are afraid to relate with her because of the fear of being requested to assist with meeting hospital bills or to otherwise be associated with her.
In her testimony she went to great length to explain to this court that her friends and relatives distanced themselves from her to avoid being called upon to assist in meeting medical costs since she would be occasionally in and out of hospital.
23. The 1st Plaintiff further stated that by reason of the injuries and incapacities, she has been rendered incapable of being in any gainful employment and therefore claims loss of earnings or loss of earning capacity.
24. The Second Plaintiff who is the husband of the 1st Plaintiff claimed and testified that he was deprived and continues to be deprived of the spousal society and services of the 1st Plaintiff and has been put to considerable trouble, inconvenience and expense, and has suffered loss and damage as a consequence thereof.
He also testified that they were forced to sleep in different bedrooms due to the 1 st plaintiff’s condition.
25. The plaintiffs claimed that they issued notices to sue to the defendants but the same were ignored prompting the filing of this suit.
26. The Plaintiffs have sought Judgment against the First, Second and 3rd Defendants jointly and severally for:-
(a) General damages for:
i. Pain and suffering to the 1st Plaintiff;
ii. Loss of society and services by the Second Plaintiff;
(b) General damages for removal of the 1st Plaintiff's cervix without the 1st Plaintiff's knowledge and /or consent.
(c) Special damages of Kshs. 7,207,524.20.
(d) Loss of. earnings or earning capacity.
(e) Costs;
(f) Interest on (a), (b) and (e) above;
(g) Such further or other relief this Honourable Court may deem fit to grant.
PLAINTIFF’S CASE.
1 ST PLAINTIFF'S EVIDENCE
27. The 1 st plaintiff during her testimony adopted her statement as her evidence in chief. In the statement she stated that on or about 23 October 2005 to 27th October 2005 she was admitted at the 3rd Defendant's hospital in Nairobi on instructions of the 1st Defendant for a procedure concerning her reproductive organs,
28. The 1st Defendant attended to her and performed a procedure of hysterectomy.
29. During the procedure the 1st Defendant only advised the 1 st plaintiff that he would be remove her uterus and ovaries.
30. The 1 st plaintiff later learnt that the 1st Defendant removed the uterus and ovaries through the vagina rather than an open operation by dissecting her abdomen and removing the uterus and the ovaries.
31. According to the 1 st plaintiff, at the time of the operation the only consent availed to her was to remove the uterus and ovaries and no more.
32. The 1 st plaintiff later learnt that the 1st Defendant removed her cervix, and never told her of this removal and neither was he authorized by her to remove it.
33. The 1 st plaintiff has since the operation at the age of 31 lived without a cervix.
36. According to her the 1st Defendant never advised her at all of implications of the type of operation that was proposed and specifically maintained that the 1st Defendant never told her that the cervix would be removed,
37. As a married woman, the 1 st plaintiff testified that she has suffered extreme loss by reason of removal of her cervix. The 1 st plaintiff testified that she has since the removal of the cervix not been able to satisfy her husband sexually as she used to prior to the operation.
37. The 1 st plaintiff went on to testify that on or about 13th to 16th September 2006, she was admitted at the 3rd Defendant's hospital for medical care for procedure known as Pelvic Endometriosis. She testified that she was admitted under care of the 1st Defendant and the 3rd Defendant.
38. It was her further evidence that she later learnt that the Pelvic Endometriosis was as a result of the 1st Defendant's negligence when during the Hysterectomy procedure he delivered her uterus and ovaries through the vagina.
39. The first plaintiff further stated that at the time of the operation all the Defendants were aware of her reproductive health condition having been a patient of the Defendants for several years.
40. At the time of the operation the 1st Defendant represented himself to her as a qualified Consultant Gynaecologist who was able to offer the specialized treatment that she sought.
41. According to her, in the operation of 14th September 2006, she was attended to by the 1st Defendant and the agents of the 3rd Defendant.
42. After the operation, she testified that she developed a vesico vaginal fistula, because in course of the operation the 1st Defendant and the servants of the 3rd Defendant scarred her bladder.
43. She went further to testify that after the operation she felt extreme pain in her vagina and because of the urinal incontinence, the urine could leak even on the sofa seat and all the places she would sit and or stand. The 1 st plaintiff was not suffering urine incontinence when she went for the operation on 14 th September 2006.
44. On developing the fistula, the 1st Defendant and 2nd Defendant proposed and carried out repair procedures; vide a further operation carried out on or about the 4th October 2006.
45. At the time of the said operation the 2nd Defendant represented to her as being a Consultant Urologist and who was capable of offering the specialized treatment she needed then.
46. The fistula persisted even after the said second operation and the First, Second and 3rd Defendants failed to advise that indeed she had a fistula and instead having inserted a catheter inside her, assured her that her bladder was well when indeed they knew it was not.
47. She went on to state that as a result of the said urinal incontinence, she was caused a lot of embarrassment. The 1 st plaintiff narrated an incident that happened while at the M.P. Shah Hospital where she had gone for X-ray photographs. She testified that while in a queue together with other members of the public, she was urinating on herself because of the urinal incontinence and when she called the First and 2nd Defendant, they still covered up on the issue of her having developed a fistula.
48. As a result of the fistula the 1 st plaintiff testified that she had to start wearing diapers so as to contain the urine flow.
49. The 1 st plaintiff further stated that as a result of the said repeated failure by the Defendants to give her the correct prognosis of the condition, when she begun to develop infection in her private part, she decided to seek a second medical opinion, and flew to South Africa where she was attended to by Dr. Johan Van der Wat a Gynaecologist obstetrician and Dr. Louis G. Gecelter a Urologist.
50. The said South African doctors after examining her condition advised her that she had developed a fistula because of scarring of the bladder during the procedure of Endometriosis.
51. The said South African doctors then commenced on treatment course to treat her first with a view of countering the fistula which endangered her life by leaking the urine in the blood stream.
52. The 1 st plaintiff went on to state that she has had since then been forced to make periodic visits to South Africa for the treatment and this went on until she depleted her savings and the 2 nd plaintiff’s. The 1 st plaintiff maintained that presently her health condition is quite imperiled.
53. The 1 st plaintiff reiterated the particulars of negligence of the Defendants as pleaded in the Plaint filed and the injuries and losses as pleaded in the Plaint.
54. The 1 st plaintiff further testified that demand for the claims against the Defendants was done through her advocates on record but the Defendants neglected to make reparations thus rendering the filing of this suit necessary.
55. The 1 st plaintiff produced a bundle of documents which included two reports from the two South African doctors giving their opinions on the matter.
56.The report by Dr. Louis Gus Gecelter- UROLOGIST-UROLOOG reads in part; ‘ ’ on 20 th October she underwent an extensive exploration of her bladder and ureters and the findings of the previous assessment were confirmed in that she had a vesicovaginal fistula, recent to the endometriosis in her bladder all of which were successfully excised and the wound closed in layers for Van Der Wat completed a laparotomy and made sure that there were no lesions of endometriosis left behind at the end of the operation either intraperitonially or retroperitoneally. The patient made an uneventful recovery and has remained free of infection and leakage simce.’’
The report by Dr Louis Gus Gecelter was emailed on the 16 th January 2007 at 9.14pm.
The other report that the 1 st plaintiff produced was a report dated the 4 th December 2008 by Dr. Johan Van Der Wat Gynaecologist and Obstetrician. The doctor’s report showed that the 1 st plaintiff had been his patient since 6/10/ 2003. The doctor said that on 23/6/2004 he performed an oophorectomy by way of a posterior incision in the uterus and an area of adenomyosis was resected. The uterus was closed in layers. It was then that the first ovary of the 1 st plaintiff was removed and chronic endometriosis diagonized.
The doctor goes on to state that the patient returned on19th October 2006 with a history that she had a child delivered by ceasarian section. After delivery the patient developed once again, pelvic pain and it was decided to do a laparoscopic hysterectomy with right salpingo oophorectomy. The same was done in Kenya. At that stage she was 32years old. During this procedure she developed complications which related to the ureter being injured and urine draining into the abdominal cavity. After numerous attempts to fix this she remained with an atonic bladder and a VVF(vesicovaginal fistula). She was permanently catheterized.
The doctor went on to state that he referred the 1 st plaintiff to Dr. Gecelter, their Urologist who the managed the urinary problem further.
In conclusion the doctor stated in his report that the patient would visit him at regular intervals to control her hormonal situation.
The two doctors essentially corroborated the evidence of the 1 st Plaintiff that she developed complications after the surgery in October 2006. The problem was apparently rectified when she saw the two South African doctors.
The 1 st plaintiff also placed reliance on a report prepared by Dr N.H Bhanji a Consultant General surgeon and Traumatologist dated the 28 th May 2014. The doctor gave the following opinion regarding protocols that govern operations:-
(a). It is a basic rule of practice that a doctor is required to obtain inform consent of the patient before the operation.
The patient must be informed of any serious risks, even if it is that of low frequency.
The patient should be warned about transient and less serious risk that occur commonly.
Details of the diagnosis and prognosis and the likely prognosis if the condition is left untreated.
Uncertainties about the diagnosis including options for further investigation prior to treatment.
Options for treatment or management of the condition, including the option not to treat.
The purpose of a proposed investigation or treatment.
Explanations of the likely benefits and the probabilities of success and discussion of any serious or frequently occuring risks, and any of any lifestyle changes, which may be caused by or neccesitated by the treatment.
Advice about whether a proposed treatment is experimental.
How and when the patient's condition and any side effects will be monitored or re-assessed.
The name of the doctor who will have overall responsibility for treatment.
Whether doctors in the training will be involved.
A reminder that patients can change their minds about a decision at any time.
A reminder that patients have a right to seek a second opinion.
Where applicable, details of costs or charges which the patient may have to meet.
(b) The doctor performing the surgery is required to explain to the patient the intended procedure precisely and the implications/side effects thereof. All hospital have such forms available to the surgeon concerned before the intended surgery.
( c) Likewise, in a hysterectomy and or removal of cervix, the doctor is required to explain the side effects and implications, following the removal, to the health of the patient in detail and may even be required to answer questions raised by the patient and her family regarding this procedure.
(d). Normally, when a surgeon is operating for hysterectomy he/she
may not proceed to remove the cervix without the patient's consent, unless during the surgery that the cervix looks malignant or deformed and the patient would benefit from such removal. Again, this is a case that happens infrequently.
(e). The treatment of the bladder is specialized and may only be handled by Urologist.
(f) A gyneacologist/obstrician may not touch the bladder beacuse it is a speciality of urologist and visa versa. According to the medical dictionary a gyneacologist is a specialist who treats diseases of genital tract in women. Likeswise it also says an obstrician as a surgeon who deals with the management of pregnancy, labour and the puerperium.
(g). Whether a bladder is perceived to be weak due to numerous
operations can be operated on by laparoscopy or incisive surgery can be decided only by a urologist.
(h). A surgeon who has performed surgery on a patient or has treated a patient from a medical condition is ethically required to give a patient true diagnosis and post-operation diagnosis whatever the results. Basically, doctors cannot lie to their patients, doctors may hold the details of treatment and attendant risks if disclosure would likely cause serious harm to mental or physical health of the patient. This is known as the doctrine of therapeutic privilege. However, if it is not a licence for paternatistic medicine the emphasis being on the likelihood of disclosure causing serious harm.
The report by Dr Banji to a great extent illuminates the issue of informed consent by a patient before any procedure which in the instant case the plaintiffs say was not obtained before her pelvis was removed.
The 2 nd plaintiff is the husband to the 1st Plaintiff. He testified that they have one child.
According to him, on or about 23rd October 2005 to 27th October 2005 the 1st Plaintiff was admitted at the 3rd Defendant's hospital in Nairobi on instructions of the 1st Defendant for a procedure concerning her reproductive organs. The 1st Defendant attended to the 1st Plaintiff and performed for a procedure of hysterectomy. During the procedure the 1st Defendant only advised them that he would only remove the 1st Plaintiff's uterus and ovaries.
The 1st Defendant however removed the 1st Plaintiff's ovaries and uterus through the vagina rather than an open operation by dissecting the abdomen and removing the uterus and ovaries.
At the time of the operation the only consent availed to the 1st Defendant for the said operation was to remove the uterus and ovaries and no more.
The 2 nd Plaintiff stated that he later learnt that the 1st Defendant removed the 1st Plaintiff's cervix, and never told them of it. He maintained throughout his testimony that the 1 st defendant was not authorized to remove it.
He went further to state that the 1st Defendant never advised them at all of implications of the type of operation that was proposed. He claimed that the 1 st defendant did not specifically tell them that the 1st Plaintiff's cervix would be removed.
The 2 nd plaintiff lamented that as a married man, he had suffered extreme loss of consortium by reason of removal of his wife's cervix; he emphatically stated that sex has permanently been rendered impossible.
He went on to testify that on or about 13th to 16th September 2006, the 1st Plaintiff was admitted at the 3rd Defendant's hospital for medical care for procedure known as Pelvic Endometriosis and that she was admitted under care of the 1st Defendant and the 3rd Defendant.
The 2 nd plaintiff said that he learnt that the Pelvic Endometriosis was as a result of the 1st Defendant's negligence when during the Hysterectomy procedure he delivered the 1st Plaintiff's uterus and ovaries through the vagina.
He confirmed that at the time of the operation all the Defendants were aware of the 1st Plaintiff's reproductive health condition the 1st Plaintiff had been a patient of the Defendants for several years.
The 2 nd Plaintiff reiterated that at the time of the operation the 1st Defendant represented himself to them as a qualified Consultant Gynecologist who was able to offer the specialized treatment that they sought.
He further confirmed that during the operation of 14th September 2006, the 1st Plaintiff was attended to by the 1st Defendant and the agents of the 3rd Defendant.
He also testified that the 1st Plaintiff developed a vesico vaginal fistula, because in the course of the operation the 1st Defendant and the servants of the 3rd Defendant scarred her bladder.
On her developing the fistula aforesaid, the 1st Defendant and 2nd Defendant proposed and carried out repair procedures, vide a further operation carried on or about the 4th October 2006.
During the procedure to correct the Vesico Vaginal Fistula the 2nd Defendant represented to them as being a Consultant Urologist and who was capable of offering the specialized treatment needed then.
The fistula persisted even after the said second operation and the First, Second and 3rd Defendants failed to advise that indeed the 1st Plaintiff had a fistula. The defendants instead inserted a catheter inside her and assured them that her bladder was well knowing too well it was not.
The 2nd plaintiff reiterated the testimony of the 1 st plaintiff on the experience she has undergone and the fact that they had to resort to South Africa for treatment at great cost and expense.
He further reiterated all her the particulars of negligence set out in the plaint and the injury suffered.
1 st DEFENDANTS' DEFENCE
The 1 st Plaintiff was the 1 st Defendant's patient between October 2005 to September 2006.
The 1st Plaintiff had previous history of hysterectomy. The 1st Plaintiff had undergone a left salpingectomy by laparotomy in May 2000 for an ectopic pregnancy, a Laparoscopic left ovarian cystectomy in June 2001, a Laparatomy endometriosis in February 2003, a Laparoscopy in October 2003 for ovarian cystectomy and pelvic endometriosis, and Laparatomy for a Myomectomy and Endometrioma in June 2004.
In October 2005, the 1st Defendant performed a total Laparoscopic Hysterectomy for Dysfunctional Uterine Bleeding and deep dyspareunia. The history of the uterus confirmed Adenomyosis and simple endometrial hyperplasia.
On 5th September 2006, the 1st Plaintiff consulted the 1st Defendant complaining of lower abdominal pain, on the right side.
Abdominal examination revealed multiple previous Laparotomy and Laparoscopy scars. There was no tenderness or masses appreciated. The liver and spleen were not palpable. There was no clinical evidence of any intra abdominal free fluid. The bowel sounds were normal.
An IVU carried out 11th September 2006 was reported as normal, although the superior aspect of the bladder on the right side showed an extrinsic impression possibly due to adhesions.
A diagnosis of Recurrent Pelvic Plain possibly due to endometriosis was entertained and after discussing all her available options which included Zoladex injections in view of her long long standing history of pelvic endometriosis, the 1st Plaintiff opted for a Diagnostic Laparoscopy.
At Laparoscopy, a good view was obtained. There were no adhesions. The right side of the peritoneum was riddled with endometriotic lesions which excised using a harmonic scalpel. The appendix appeared hyperaemic and engorged and an appendectomy was performed using the harmonic scalpel and bipolar coagulation. A good lavage was undertaken. The specimen was sent for histology.
The 1st Plaintiff recovered well and was discharged for follow up at the 1st Defendant's clinic on 26th September 2006.
On 26th September 2006, the 1st Plaintiff complained of little pain and was otherwise normal. The histology report was discussed which confirmed features of pelvic endometriosis, old ovarian endometrioma and an appendix with a faecolith.
On 29th September 2006, the 1st Plaintiff called the 1st Defendant complaining of lower abdominal pain and initial urinary retention and then subsequently, partial incontinence of urine. The 1st Defendant r
[...truncated]
BACKGROUND
The 1st Plaintiff was admitted at the Hospital on or about the 13th September 2006 to the 16th of September 2006 for medical care for a Pelvic Endometriosis.
The 1 st plaintiff received treatment and it is as result of the care and treatment that she received that she came to court almost two decades back seeking redress from this court.
The matter has been in the justice system all these years but has finally been heard bringing to a close the plaintiffs’ search for justice in our courts.
The 1 st plaintiff alleged in the plaint that she learnt much later after treatment that the said Pelvic Endometriosis was as a consequence of the negligence of the 1st Defendant during a hysterectomy procedure wherein the 1st Plaintiff delivered the Uterus and ovaries per birth canal.
The plaintiffs further alleged that at all material times the 1st Defendant held himself out as an experienced, skilled and competent Consultant Gynecologist, to provide to the 1st Plaintiff Gynecological consultation and advisory services over the Pelvic Endometriosis issue.
The plaintiffs further claimed that at all material times the 2nd Defendant held himself out to be experienced, skilled and competent as a Consultant Urologist and agreed, for reward, to provide to the 1st Plaintiff with consultation and advisory services subsequent to the Pelvic Endometriosis treatment offered by the 1 st Defendant.
According to the plaintiffs on 14th of September 2006, the 1st Defendant carried out the Pelvic Endometriosis on the 1st Plaintiff at the Hospital and due to the negligence of the 1st Defendant, the 1st Plaintiff's bladder was damaged resulting in a Vesico-Vaginal Fistula.
The matters set out above were caused solely by the 1st Defendant in breach of contract and negligence in the course of treatment to the 1st Plaintiff.
The plaintiffs further alleged that the 1st Defendant was negligent in that he:
(a) Unskilfully performed a hysterectomy procedure.
(b) Unskilfully performed a Pelvic Endometriosis procedure.
(c) Unskilfully performed an operation on 14th September 2006.
(d) Failed to exercise reasonable care in carrying out the operation on14th September 2006;
(e) Knew or ought to have known that he was not qualified properly or at all to carry out the operation on 14th of September 2006;
(f) Failed to consult or engage a Urologist during the operation on 14th
September 2006;
(g) Wrongfully discharged the 1st Plaintiff from hospital after the operation on 16th September 2006;
(h) Carried out in breach of contract negligent treatment and operations on 14th September 2006;
(i) Was not qualified to practice as a medical doctor and more particularly as a urological surgeon;
(j) He failed to exercise due care and diligence in his care of the First
Plaintiff;
(k) He failed to exercise the proper skill and care commensurate with a
Doctor practising in the field of Obstetrics and Gynaecology;
(1) And the 1st Plaintiff will to the extent necessary rely on the principle of res ipsa loquitor.
The 1st Plaintiff also learnt that during the hysterectomy procedure wherein the 1st Plaintiff delivered the Uterus and ovaries per birth canal, the 1st Defendant removed the 1st Plaintiff's cervix without the 1st Plaintiff's knowledge and /or consent.
On 4th of October 2006 emergency repairs and procedures were carried out by the First and 2nd Defendants in an attempt to remedy the Vesico Vaginal Fistula, However, notwithstanding these emergency repairs, the Vesico Vaginal Fistula continued.
The plaintiffs further contended that the matters set out above were caused solely by the First and 2nd Defendant's breach of contract and negligence in the care and treatment of the 1st Plaintiff.
PARTICULARS OF BREACH OF CONTRACT OF THE FIRST AND 2 ND DEFENDANTS
14. The 1 st and 2nd Defendants were in breach of contract in that:
a. They failed to exercise reasonable care and skill in the provision of professional advice and treatment in respect of a special skill which they had held themselves out to possess.
b. Unskilfully and in breach of contract performed an operation on 4th
October 2006.
c. Failed to exercise reasonable care in carrying out the Second operation
on 4th October 2006;
d. Knew or ought to have known that the 1st Defendant was not qualified
properly or at all to carry out the original operation;
e. The 1st Defendant failed to consult or engage a Urologist during the
original operation;
f. Carried out in breach of contract further treatment and operations on 4th of October 2006.
g. The 1st Defendant was not qualified to practice as a Urological Surgeon.
The Fist Plaintiff avers that the First, Second and 3rd Defendants were negligent and in breach of their common law and contractual duty.
PARTICULARS OF 1 st AND 2ND DEFENDANT'S NEGLIGENCE
15. The 1 st and 2nd Defendant were negligent in that they:
(a) Carried out negligent treatment and operations on the 1st Plaintiff;
(b) Failed in both operations;
(c) Failed to take reasonable care in carrying out the operation;
(d) Knew or ought to have taken a second Urologist's opinion;
(e) Treated and operated the 1st Plaintiff in an unskilful or negligent manner.
PARTICULARS OF 3RD DEFENDANT'S NEGLIGENCE AND/OR
BREACH OF CONTRACT
16. The 3rd Defendant was negligent and in breach of contract in that it:-
(a) Allowed unskilled or unqualified negligent medical practitioners to work and operate at its Hospital;
(b) Allowed an unqualified person to work and operate at its Hospital
(c) 3rd Defendant's agent or servants acted without reasonable care and skill in treatment, operation and advice to the 1st Plaintiff;
(d) 3rd Defendant's agents or servants allowed treatment, operation and advice to be carried out in a negligent manner or without reasonable care.
(e) 3rd Defendant's agent failed to exercise reasonable care and skill in the provision of professional advice and treatment in respect of a special skill which they had held themselves out to possess.
17. As a result of the matters aforesaid, the 1st Plaintiff, who was aged 32 years at the time, suffered great pain, sustained severe injury, loss and damage.
PARTICULARS OF THE 1ST PLAINTIFF'S INJURIES
(a) Persistent lower abdominal pain with tenderness;
(b) Persistent bottom/perineum pain;
(c) Damaged contracted scarred bladder;
(d) Capacity of bladder has been reduced;
(e) Severe urinary incontinence.
(f) Rupture of the vaginal wall and uterus.
(g) Severe Trauma.
(h) Recurrent urinary tract infections
18. The plaintiffs further alleged that as a result of the matters aforesaid, the 1st Plaintiff suffered and continued to suffer severe humiliation and embarrassment, emotional distress leading to depression of having to put on diapers.
19. Further, the plaintiffs alleged that the 1st Defendant removed the 1st Plaintiff's cervix without the 1st Plaintiff's knowledge and /or consent and she thereby sustained loss and damage;
PARTICULARS OF LOSS
a. Loss of the cervix;
b. Loss of ability to satisfy her husband sexually;
c. Loss of sexual enjoyment.
20. The plaintiffs claimed that subsequent to the loss and damage caused by the Defendants' breach of contract and negligence, the 1st Plaintiff was compelled to seek further specialized medical attention in South Africa and thereby incurred additional medical expenses over and above the expenses paid to the Defendants, which consideration wholly failed.
21. It was also alleged by the plaintiffs that the nature of injury inflicted on the 1st Plaintiff requires sustained and continuous medical treatment and the 1st Plaintiff claimed against the Defendants jointly and severally for the costs of future medical care to be ascertained by an inquiry at the hearing hereof.
PARTICULARS OF THE 1ST PLAINTIFF'S SPECIAL DAMAGES
Expenses on treatment and incidentals
ITEM Amount Kshs. Amount
Amounts paid to the Defendants
i
Operation Fee to 1st Defendant
100,000.00
ii
Bill to 3rd Defendant
132,000.00
iii
Anesthesiologist’s fee
35,000.00
iv
Further fee to 3rd Defendant
58,000.00
v
Further Anesthesiologist’s fee
10,000.00
vi
Operation fee to the 2nd Defendant
50,000.00
Expenses to, from and while in South Africa
i
Airfare Economy Class
USD 976
68,320.00
ii
Further airfare
USD 2250
157, 500.00
iii
Further airfare
USD 2260
158,200.00
iv
Accommodation
USD 1554
108, 780
v
Hospital Bill
26,093.84 Rands
260, 938. 40
vi
Doctor’s Fees
97,571. 36 Rands
985, 440.60
vii
Medicines
3, 510. 52 Rands
38, 145.20
viii
Doctor Consultation fee
500 Rands
5,000. 00
ix
Further Doctor’s Fee
1500 Rands
15,000. 00
x.
Taxi travelling (to and from Hospital and Clinics)
720 Rands
7, 200. 00
Xi
Cost of Future medical care
5,000,000
TOTAL
Kshs. 7,207, 524.20
22. The 1st Plaintiff went on to claim that she has further suffered social stigma as a result of the matters aforesaid as her friends and relatives have looked down upon her with suspicion as being fragile and unclean arising from the post -surgery complication and she has further been shunned by friends and relatives who are afraid to relate with her because of the fear of being requested to assist with meeting hospital bills or to otherwise be associated with her.
In her testimony she went to great length to explain to this court that her friends and relatives distanced themselves from her to avoid being called upon to assist in meeting medical costs since she would be occasionally in and out of hospital.
23. The 1st Plaintiff further stated that by reason of the injuries and incapacities, she has been rendered incapable of being in any gainful employment and therefore claims loss of earnings or loss of earning capacity.
24. The Second Plaintiff who is the husband of the 1st Plaintiff claimed and testified that he was deprived and continues to be deprived of the spousal society and services of the 1st Plaintiff and has been put to considerable trouble, inconvenience and expense, and has suffered loss and damage as a consequence thereof.
He also testified that they were forced to sleep in different bedrooms due to the 1 st plaintiff’s condition.
25. The plaintiffs claimed that they issued notices to sue to the defendants but the same were ignored prompting the filing of this suit.
26. The Plaintiffs have sought Judgment against the First, Second and 3rd Defendants jointly and severally for:-
(a) General damages for:
i. Pain and suffering to the 1st Plaintiff;
ii. Loss of society and services by the Second Plaintiff;
(b) General damages for removal of the 1st Plaintiff's cervix without the 1st Plaintiff's knowledge and /or consent.
(c) Special damages of Kshs. 7,207,524.20.
(d) Loss of. earnings or earning capacity.
(e) Costs;
(f) Interest on (a), (b) and (e) above;
(g) Such further or other relief this Honourable Court may deem fit to grant.
PLAINTIFF’S CASE.
1 ST PLAINTIFF'S EVIDENCE
27. The 1 st plaintiff during her testimony adopted her statement as her evidence in chief. In the statement she stated that on or about 23 October 2005 to 27th October 2005 she was admitted at the 3rd Defendant's hospital in Nairobi on instructions of the 1st Defendant for a procedure concerning her reproductive organs,
28. The 1st Defendant attended to her and performed a procedure of hysterectomy.
29. During the procedure the 1st Defendant only advised the 1 st plaintiff that he would be remove her uterus and ovaries.
30. The 1 st plaintiff later learnt that the 1st Defendant removed the uterus and ovaries through the vagina rather than an open operation by dissecting her abdomen and removing the uterus and the ovaries.
31. According to the 1 st plaintiff, at the time of the operation the only consent availed to her was to remove the uterus and ovaries and no more.
32. The 1 st plaintiff later learnt that the 1st Defendant removed her cervix, and never told her of this removal and neither was he authorized by her to remove it.
33. The 1 st plaintiff has since the operation at the age of 31 lived without a cervix.
36. According to her the 1st Defendant never advised her at all of implications of the type of operation that was proposed and specifically maintained that the 1st Defendant never told her that the cervix would be removed,
37. As a married woman, the 1 st plaintiff testified that she has suffered extreme loss by reason of removal of her cervix. The 1 st plaintiff testified that she has since the removal of the cervix not been able to satisfy her husband sexually as she used to prior to the operation.
37. The 1 st plaintiff went on to testify that on or about 13th to 16th September 2006, she was admitted at the 3rd Defendant's hospital for medical care for procedure known as Pelvic Endometriosis. She testified that she was admitted under care of the 1st Defendant and the 3rd Defendant.
38. It was her further evidence that she later learnt that the Pelvic Endometriosis was as a result of the 1st Defendant's negligence when during the Hysterectomy procedure he delivered her uterus and ovaries through the vagina.
39. The first plaintiff further stated that at the time of the operation all the Defendants were aware of her reproductive health condition having been a patient of the Defendants for several years.
40. At the time of the operation the 1st Defendant represented himself to her as a qualified Consultant Gynaecologist who was able to offer the specialized treatment that she sought.
41. According to her, in the operation of 14th September 2006, she was attended to by the 1st Defendant and the agents of the 3rd Defendant.
42. After the operation, she testified that she developed a vesico vaginal fistula, because in course of the operation the 1st Defendant and the servants of the 3rd Defendant scarred her bladder.
43. She went further to testify that after the operation she felt extreme pain in her vagina and because of the urinal incontinence, the urine could leak even on the sofa seat and all the places she would sit and or stand. The 1 st plaintiff was not suffering urine incontinence when she went for the operation on 14 th September 2006.
44. On developing the fistula, the 1st Defendant and 2nd Defendant proposed and carried out repair procedures; vide a further operation carried out on or about the 4th October 2006.
45. At the time of the said operation the 2nd Defendant represented to her as being a Consultant Urologist and who was capable of offering the specialized treatment she needed then.
46. The fistula persisted even after the said second operation and the First, Second and 3rd Defendants failed to advise that indeed she had a fistula and instead having inserted a catheter inside her, assured her that her bladder was well when indeed they knew it was not.
47. She went on to state that as a result of the said urinal incontinence, she was caused a lot of embarrassment. The 1 st plaintiff narrated an incident that happened while at the M.P. Shah Hospital where she had gone for X-ray photographs. She testified that while in a queue together with other members of the public, she was urinating on herself because of the urinal incontinence and when she called the First and 2nd Defendant, they still covered up on the issue of her having developed a fistula.
48. As a result of the fistula the 1 st plaintiff testified that she had to start wearing diapers so as to contain the urine flow.
49. The 1 st plaintiff further stated that as a result of the said repeated failure by the Defendants to give her the correct prognosis of the condition, when she begun to develop infection in her private part, she decided to seek a second medical opinion, and flew to South Africa where she was attended to by Dr. Johan Van der Wat a Gynaecologist obstetrician and Dr. Louis G. Gecelter a Urologist.
50. The said South African doctors after examining her condition advised her that she had developed a fistula because of scarring of the bladder during the procedure of Endometriosis.
51. The said South African doctors then commenced on treatment course to treat her first with a view of countering the fistula which endangered her life by leaking the urine in the blood stream.
52. The 1 st plaintiff went on to state that she has had since then been forced to make periodic visits to South Africa for the treatment and this went on until she depleted her savings and the 2 nd plaintiff’s. The 1 st plaintiff maintained that presently her health condition is quite imperiled.
53. The 1 st plaintiff reiterated the particulars of negligence of the Defendants as pleaded in the Plaint filed and the injuries and losses as pleaded in the Plaint.
54. The 1 st plaintiff further testified that demand for the claims against the Defendants was done through her advocates on record but the Defendants neglected to make reparations thus rendering the filing of this suit necessary.
55. The 1 st plaintiff produced a bundle of documents which included two reports from the two South African doctors giving their opinions on the matter.
56.The report by Dr. Louis Gus Gecelter- UROLOGIST-UROLOOG reads in part; ‘ ’ on 20 th October she underwent an extensive exploration of her bladder and ureters and the findings of the previous assessment were confirmed in that she had a vesicovaginal fistula, recent to the endometriosis in her bladder all of which were successfully excised and the wound closed in layers for Van Der Wat completed a laparotomy and made sure that there were no lesions of endometriosis left behind at the end of the operation either intraperitonially or retroperitoneally. The patient made an uneventful recovery and has remained free of infection and leakage simce.’’
The report by Dr Louis Gus Gecelter was emailed on the 16 th January 2007 at 9.14pm.
The other report that the 1 st plaintiff produced was a report dated the 4 th December 2008 by Dr. Johan Van Der Wat Gynaecologist and Obstetrician. The doctor’s report showed that the 1 st plaintiff had been his patient since 6/10/ 2003. The doctor said that on 23/6/2004 he performed an oophorectomy by way of a posterior incision in the uterus and an area of adenomyosis was resected. The uterus was closed in layers. It was then that the first ovary of the 1 st plaintiff was removed and chronic endometriosis diagonized.
The doctor goes on to state that the patient returned on19th October 2006 with a history that she had a child delivered by ceasarian section. After delivery the patient developed once again, pelvic pain and it was decided to do a laparoscopic hysterectomy with right salpingo oophorectomy. The same was done in Kenya. At that stage she was 32years old. During this procedure she developed complications which related to the ureter being injured and urine draining into the abdominal cavity. After numerous attempts to fix this she remained with an atonic bladder and a VVF(vesicovaginal fistula). She was permanently catheterized.
The doctor went on to state that he referred the 1 st plaintiff to Dr. Gecelter, their Urologist who the managed the urinary problem further.
In conclusion the doctor stated in his report that the patient would visit him at regular intervals to control her hormonal situation.
The two doctors essentially corroborated the evidence of the 1 st Plaintiff that she developed complications after the surgery in October 2006. The problem was apparently rectified when she saw the two South African doctors.
The 1 st plaintiff also placed reliance on a report prepared by Dr N.H Bhanji a Consultant General surgeon and Traumatologist dated the 28 th May 2014. The doctor gave the following opinion regarding protocols that govern operations:-
(a). It is a basic rule of practice that a doctor is required to obtain inform consent of the patient before the operation.
The patient must be informed of any serious risks, even if it is that of low frequency.
The patient should be warned about transient and less serious risk that occur commonly.
Details of the diagnosis and prognosis and the likely prognosis if the condition is left untreated.
Uncertainties about the diagnosis including options for further investigation prior to treatment.
Options for treatment or management of the condition, including the option not to treat.
The purpose of a proposed investigation or treatment.
Explanations of the likely benefits and the probabilities of success and discussion of any serious or frequently occuring risks, and any of any lifestyle changes, which may be caused by or neccesitated by the treatment.
Advice about whether a proposed treatment is experimental.
How and when the patient's condition and any side effects will be monitored or re-assessed.
The name of the doctor who will have overall responsibility for treatment.
Whether doctors in the training will be involved.
A reminder that patients can change their minds about a decision at any time.
A reminder that patients have a right to seek a second opinion.
Where applicable, details of costs or charges which the patient may have to meet.
(b) The doctor performing the surgery is required to explain to the patient the intended procedure precisely and the implications/side effects thereof. All hospital have such forms available to the surgeon concerned before the intended surgery.
( c) Likewise, in a hysterectomy and or removal of cervix, the doctor is required to explain the side effects and implications, following the removal, to the health of the patient in detail and may even be required to answer questions raised by the patient and her family regarding this procedure.
(d). Normally, when a surgeon is operating for hysterectomy he/she
may not proceed to remove the cervix without the patient's consent, unless during the surgery that the cervix looks malignant or deformed and the patient would benefit from such removal. Again, this is a case that happens infrequently.
(e). The treatment of the bladder is specialized and may only be handled by Urologist.
(f) A gyneacologist/obstrician may not touch the bladder beacuse it is a speciality of urologist and visa versa. According to the medical dictionary a gyneacologist is a specialist who treats diseases of genital tract in women. Likeswise it also says an obstrician as a surgeon who deals with the management of pregnancy, labour and the puerperium.
(g). Whether a bladder is perceived to be weak due to numerous
operations can be operated on by laparoscopy or incisive surgery can be decided only by a urologist.
(h). A surgeon who has performed surgery on a patient or has treated a patient from a medical condition is ethically required to give a patient true diagnosis and post-operation diagnosis whatever the results. Basically, doctors cannot lie to their patients, doctors may hold the details of treatment and attendant risks if disclosure would likely cause serious harm to mental or physical health of the patient. This is known as the doctrine of therapeutic privilege. However, if it is not a licence for paternatistic medicine the emphasis being on the likelihood of disclosure causing serious harm.
The report by Dr Banji to a great extent illuminates the issue of informed consent by a patient before any procedure which in the instant case the plaintiffs say was not obtained before her pelvis was removed.
The 2 nd plaintiff is the husband to the 1st Plaintiff. He testified that they have one child.
According to him, on or about 23rd October 2005 to 27th October 2005 the 1st Plaintiff was admitted at the 3rd Defendant's hospital in Nairobi on instructions of the 1st Defendant for a procedure concerning her reproductive organs. The 1st Defendant attended to the 1st Plaintiff and performed for a procedure of hysterectomy. During the procedure the 1st Defendant only advised them that he would only remove the 1st Plaintiff's uterus and ovaries.
The 1st Defendant however removed the 1st Plaintiff's ovaries and uterus through the vagina rather than an open operation by dissecting the abdomen and removing the uterus and ovaries.
At the time of the operation the only consent availed to the 1st Defendant for the said operation was to remove the uterus and ovaries and no more.
The 2 nd Plaintiff stated that he later learnt that the 1st Defendant removed the 1st Plaintiff's cervix, and never told them of it. He maintained throughout his testimony that the 1 st defendant was not authorized to remove it.
He went further to state that the 1st Defendant never advised them at all of implications of the type of operation that was proposed. He claimed that the 1 st defendant did not specifically tell them that the 1st Plaintiff's cervix would be removed.
The 2 nd plaintiff lamented that as a married man, he had suffered extreme loss of consortium by reason of removal of his wife's cervix; he emphatically stated that sex has permanently been rendered impossible.
He went on to testify that on or about 13th to 16th September 2006, the 1st Plaintiff was admitted at the 3rd Defendant's hospital for medical care for procedure known as Pelvic Endometriosis and that she was admitted under care of the 1st Defendant and the 3rd Defendant.
The 2 nd plaintiff said that he learnt that the Pelvic Endometriosis was as a result of the 1st Defendant's negligence when during the Hysterectomy procedure he delivered the 1st Plaintiff's uterus and ovaries through the vagina.
He confirmed that at the time of the operation all the Defendants were aware of the 1st Plaintiff's reproductive health condition the 1st Plaintiff had been a patient of the Defendants for several years.
The 2 nd Plaintiff reiterated that at the time of the operation the 1st Defendant represented himself to them as a qualified Consultant Gynecologist who was able to offer the specialized treatment that they sought.
He further confirmed that during the operation of 14th September 2006, the 1st Plaintiff was attended to by the 1st Defendant and the agents of the 3rd Defendant.
He also testified that the 1st Plaintiff developed a vesico vaginal fistula, because in the course of the operation the 1st Defendant and the servants of the 3rd Defendant scarred her bladder.
On her developing the fistula aforesaid, the 1st Defendant and 2nd Defendant proposed and carried out repair procedures, vide a further operation carried on or about the 4th October 2006.
During the procedure to correct the Vesico Vaginal Fistula the 2nd Defendant represented to them as being a Consultant Urologist and who was capable of offering the specialized treatment needed then.
The fistula persisted even after the said second operation and the First, Second and 3rd Defendants failed to advise that indeed the 1st Plaintiff had a fistula. The defendants instead inserted a catheter inside her and assured them that her bladder was well knowing too well it was not.
The 2nd plaintiff reiterated the testimony of the 1 st plaintiff on the experience she has undergone and the fact that they had to resort to South Africa for treatment at great cost and expense.
He further reiterated all her the particulars of negligence set out in the plaint and the injury suffered.
1 st DEFENDANTS' DEFENCE
The 1 st Plaintiff was the 1 st Defendant's patient between October 2005 to September 2006.
The 1st Plaintiff had previous history of hysterectomy. The 1st Plaintiff had undergone a left salpingectomy by laparotomy in May 2000 for an ectopic pregnancy, a Laparoscopic left ovarian cystectomy in June 2001, a Laparatomy endometriosis in February 2003, a Laparoscopy in October 2003 for ovarian cystectomy and pelvic endometriosis, and Laparatomy for a Myomectomy and Endometrioma in June 2004.
In October 2005, the 1st Defendant performed a total Laparoscopic Hysterectomy for Dysfunctional Uterine Bleeding and deep dyspareunia. The history of the uterus confirmed Adenomyosis and simple endometrial hyperplasia.
On 5th September 2006, the 1st Plaintiff consulted the 1st Defendant complaining of lower abdominal pain, on the right side.
Abdominal examination revealed multiple previous Laparotomy and Laparoscopy scars. There was no tenderness or masses appreciated. The liver and spleen were not palpable. There was no clinical evidence of any intra abdominal free fluid. The bowel sounds were normal.
An IVU carried out 11th September 2006 was reported as normal, although the superior aspect of the bladder on the right side showed an extrinsic impression possibly due to adhesions.
A diagnosis of Recurrent Pelvic Plain possibly due to endometriosis was entertained and after discussing all her available options which included Zoladex injections in view of her long long standing history of pelvic endometriosis, the 1st Plaintiff opted for a Diagnostic Laparoscopy.
At Laparoscopy, a good view was obtained. There were no adhesions. The right side of the peritoneum was riddled with endometriotic lesions which excised using a harmonic scalpel. The appendix appeared hyperaemic and engorged and an appendectomy was performed using the harmonic scalpel and bipolar coagulation. A good lavage was undertaken. The specimen was sent for histology.
The 1st Plaintiff recovered well and was discharged for follow up at the 1st Defendant's clinic on 26th September 2006.
On 26th September 2006, the 1st Plaintiff complained of little pain and was otherwise normal. The histology report was discussed which confirmed features of pelvic endometriosis, old ovarian endometrioma and an appendix with a faecolith.
On 29th September 2006, the 1st Plaintiff called the 1st Defendant complaining of lower abdominal pain and initial urinary retention and then subsequently, partial incontinence of urine. The 1st Defendant r
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