Introduction and pleadings
1. This suit was instituted by way of a plaint dated 31 July 2009 and filed on 24 September 2009 by the plaintiff, then a minor aged about three and a half years, suing through her parents as next friends. The plaint was amended in May 2023 and, pursuant to directions issued by this court on 28 January 2025, further amended by the Further Amended Plaint dated 31 January 2025 and filed on 7 February 2025. The plaintiff has in the intervening years attained the age of majority and now prosecutes the suit in her own name, Uchi Mwidhin Mwarua.
2. The gravamen of the plaintiff's case is that on or about 7 August 2008, then a child of three and a half years, she was referred from the Kenya Ports Authority (“KPA”) Clinic to the 1st defendant's hospital, Pandya Memorial Hospital, on account of an ailment of her left arm. At the hospital she was attended to by the 2nd and 3rd defendants. An intravenous line was fixed on the wrist of her right arm, the arm that had no complaint, through which antibiotics were administered. She avers that as a result of the insertion of the needle and the subsequent intravenous administration of the antibiotic, she developed profuse bleeding and incessant pain; that despite her mother's insistence for intervention, the hospital's doctors merely recommended immersion of the affected arm in warm water and the administration of soporific medication; that on 16 August 2008, following the 1st defendant's inability to arrest the deterioration of her right arm, she was referred to Kenyatta National Hospital (“KNH”) where a scan revealed severe vascular compromise with gangrene demarcating at five centimetres below the elbow; and that her right arm was consequently amputated below the elbow, leaving her permanently disabled.
3. At paragraph 13 of the Further Amended Plaint the plaintiff sets out thirteen particulars of negligence against the defendants, which may be compendiously summarised as: failure to exercise reasonable care and skill in diagnosis; injecting and treating the right arm instead of the referred left arm; failure to prescribe correct treatment; failure to prevent or arrest her pain and severe bleeding upon insertion of the needle; ignoring the complaints made by her mother; administering hot water over an arm that was turning black; administering antibiotics without proper diagnosis; carrying out their duties in breach of established medical practice; and failing to control or arrest the deterioration, bleeding, swelling and ultimately the gangrene that led to the amputation.
4. At paragraph 14 the plaintiff pleads the particulars of damage, injury and disability, namely:
(i) severe bleeding and pain due to intra-arterial injection;
(ii) amputation of the right forearm resulting from gangrene and severe vascular compromise demarcating 5 cm below the elbow;
(iii) development of sepsis over the left forearm with a pus-discharging wound below the left elbow; and
(iv) marked oedema of the right arm and right axilla.
5. Special damages of Kshs 141,891.00 have been particularised as medical expenses at Pandya Hospital (Kshs 68,676.00), X-ray (Kshs 3,000.00), scans (Kshs 6,000.00) and air ticket and other travel expenses (Kshs 64,215.00).
6. The plaintiff prays for judgment against the defendants jointly and severally for general damages for loss of use of the right forearm, future nursing/medical expenses and care, loss of future earnings and/or earning capacity, and pain and suffering; special damages of Kshs 141,891.00; costs; and interest.
7. The 1st defendant filed its defence on 18 November 2009 which it amended on 26 November 2009. The 2nd defendant filed his written statement of defence dated 28 May 2023. In their defences, the 1st and 2nd defendants aver that the plaintiff was admitted to the hospital on 7August 2008 from the KPA Clinic with a history of high fever and a swollen, tender left elbow joint; that she was admitted under the care of the 3rd defendant who examined her; that in accordance with the directions of the 3rd defendant, the 2nd defendant, then employed by the 1st defendant as a Resident Medical Officer, fixed an intravenous line which was tested and found to be functioning well, whereafter intravenous treatment was commenced without any problem. They deny that the plaintiff developed profuse bleeding or haemorrhaging; they narrate the events of the night of 8th/9th August 2008 culminating in the 3rd defendant's review of the child at 4.30 a.m.; and they deny any negligence, recklessness or breach of duty, averring that the 1st defendant's employees, including the 2nd defendant, exercised reasonable skill and care in accordance with the 3rd defendant's instructions. They specifically deny that the 3rd defendant was engaged by the 1st defendant, averring that he was a consultant paediatrician in private practice.
8. The 3rd defendant's statement of defence is dated 24 July 2023. He denies that the plaintiff was referred with an “ineffective process of the left arm” and avers that she was referred from the KPA Clinic with fevers and a painful, swollen left elbow which had already been treated at that clinic with powerful antibiotics. He admits reviewing the plaintiff's history and examining her on 7 August 2008 for the purposes of diagnosis, and admits that the 2nd defendant inserted the intravenous line. He admits that on 9 August 2008 a report was made of severe pain at the cannula site and that the cannula was removed for refixing; avers that upon consultation with Dr. Gathua, a senior surgeon, warm compressions were commenced to increase blood flow and the mode of administration of the antibiotic was changed; admits the transfer to KNH; and denies negligence, averring that he exercised reasonable care and skill throughout. He also questioned the pecuniary jurisdiction of this court, a point to which I shall return in due course.
The evidence
(a) The plaintiff's case
9. The plaintiff called two witnesses. PW1 was Fatuma Bakari Mwasadi, the plaintiff's mother, who adopted her witness statement as her evidence-in-chief. Her evidence was that the plaintiff, then aged three and a half years, was referred from the KPA Clinic and admitted at the 1st defendant's hospital on 7 August 2008 under the care of the 3rd defendant, who diagnosed cellulitis and possible septic arthritis of the left elbow and prescribed, among other treatment, an antibiotic to be administered intravenously. The 2nd defendant fixed the intravenous line on the child's right wrist in her presence. She testified that at the time of insertion of the needle, blood came out with a lot of force, spilling on the 2nd defendant; that whenever medicine was administered through the line, blood would enter the cannula and the child would cry in pain; that the right hand thereafter began to change colour and turn cold as if it had insufficient blood supply; and that the child was in such pain that she had to be sedated to sleep. She narrated the Doppler scans of 9 and 14 August 2008, the transfer to KNH on 16 August 2008, and the amputation of the child's right arm below the elbow on 21 August 2008. She testified that the plaintiff lost her dominant arm; that her ambition of becoming a police officer is now beyond reach; and that her education, career prospects and social standing have been gravely affected by stigma. She produced, among other exhibits, a school admission letter and progress reports. In cross-examination she conceded that the child was admitted under the care of Dr. Karega, who is the one who examined the minor, but she insisted that the blood at cannulation was spurting and bright red in colour, and maintained that the problems began on the night of 7 August 2008 and not 8 August 2008 as the hospital records suggest.
10. PW2 was Dr. James Kabora Mogire, an orthopaedic and trauma surgeon, who testified as the plaintiff's expert witness. He produced his Medical-in-Confidence report dated 14 November 2008 (Exhibit 15), an addendum report dated 18 September 2023, and an Appraisal of the Standard of Care dated 26 October 2023 (Exhibit 16). He first encountered the plaintiff at KNH on 16 August 2008, when he was asked to review her for a definitive test; he performed a nuclear uptake scan which showed that the right arm no longer had viable blood vessels. The arm was amputated on 21 August 2008 and the child discharged on 2 September 2008; he reviewed her thereafter on 26 September 2008 and 14 November 2008. His opinion was that the loss of the arm was avoidable; that the cannula was placed in the radial artery rather than a vein, as evidenced, in his view, by the spurting of blood at insertion described by the mother and by the Doppler findings of arterial spasm beginning at the radial artery at the very site of the cannula and later extending to the cubital and brachial arteries; that each forceful injection of Dalacin C against arterial pressure aggravated the injury and drove the drug into the soft tissues; and that proper supervision or verification of the cannula placement would have detected the error early enough to salvage the arm. He assessed the plaintiff's permanent incapacity at 50% on account of the loss of the right forearm below the elbow, and spoke of the severe physical, psychological and social trauma occasioned to her, and of the need for stump revision at the phases of growth spurt. In cross-examination he conceded that he does not practise paediatric medicine; that he does not personally cannulate his patients, resident medical officers routinely doing so, and that as a consultant his primary role, like the 3rd defendant's, is to diagnose and prescribe; that the handwritten cardex notes were never availed to him and his reports were not based on them, although such notes are relevant and useful; that no autopsy or biopsy was performed on the amputated limb; that the left elbow condition for which the child was admitted had resolved by the time of her admission at KNH; and that leakage of medicine into the tissues, as suggested by Dr. Gathua, remained a possibility.
(b)The defence case
11. The 1st and 2nd defendants called four witnesses. DW1, Ishmael Onchari, the 1st defendant's Director of Nursing Services, produced the hospital's records of the plaintiff's treatment, including the Nursing Report prepared by the then Matron, Mrs. Peace Emurwon, and the cardex notes; he explained that, save for Nurse Khalima Fondo, the nurses who attended the plaintiff had since left the 1st defendant's employment and their whereabouts were unknown.
12. DW2 was the 2nd defendant, Dr. Awadh Hemed, now an orthopaedic surgeon but at the material time a Resident Medical Officer employed by the 1st defendant. He adopted his statements of 14 August 2008 and 19 July 2023. His evidence was that on 7 August 2008 he was on call when the plaintiff was admitted into the paediatric ward from KPA under the care of the 3rd defendant; that he was called to fix an intravenous line, which he did with Nurse Tawa in the presence of both parents; that as he fixed the line he explained the process step by step, and Nurse Tawa confirmed with him that a vein had been cannulated, as evidenced by dark red (not bright red) blood which oozed rather than spurted; that he confirmed the presence of the radial pulse after fixing the line; that the line was tested by flushing with water for injection and found to flow smoothly without resistance; and that treatment commenced the same day without any problem. He was never called again about any problem with the line, and his involvement in the plaintiff's care ended there. He testified that intravenous access may properly be obtained from any accessible vein and that he would in any event avoid the affected limb; and that had there been any issue with the cannulation he would not have proceeded.
13. DW3, Nurse Khalima Fondo, a senior nurse in the 1st defendant's employment since 1995, adopted her statement. She was on duty on the night of 8 August 2008. At 8.00 p.m. she received the patient, whose mother reported that the child was complaining of a painful branula; she removed the branula “for refixing”; at 10.00 p.m. treatment was given and observations recorded (temperature 37.8°C, pulse 110, respiration 24); the Resident Medical Officer “was to attend and fix the branula”; the child was left to sleep, the branula to be refixed in the morning. At 2.00 a.m. observations were taken (temperature 37°C, pulse 100, respiration 22). At 3.20 a.m. the mother called complaining that the child's fingers could not move; the Resident Medical Officer was called to review the hands; at 3.30 a.m. Dr. Karega was telephoned and directed warm compresses, saying he was coming to see the patient; at 4.30 a.m. Dr. Karega attended, directed continuous warm compression, stopped the Dalacin C injection in favour of oral syrup, and prescribed Cataflam drops. On examination the palm had cyanosis radiating from the wrist upwards, though the digits could still move.
14. DW4 was Dr. Peter Aseyo Sore, a consultant general, cardiothoracic and vascular surgeon, who produced medical opinions dated 10 August 2023 and 16 October 2023. His evidence, based on his review of the treatment records, was that: the classical signs of arterial cannulation are bright red blood, pulsatile flow, upward movement of blood in the infusion tubing, and pain with distal ischaemia; neither the 2nd nor 3rd defendants nor any of the nurses on duty saw any sign of arterial cannulation; it was not wrong to place a cannula in the right hand since a cannula may be placed in any easily accessible vein; vascular insufficiency following radial artery cannulation is extremely rare because of the palmar arch, the collateral network by which the hand is supplied by both the ulnar and radial arteries, which is why the radial artery can be harvested for coronary bypass surgery; injury to the radial artery causing vascular insufficiency typically manifests in darkening of the fingertips, which did not occur here; clindamycin (Dalacin C) is known to cause thrombophlebitis in some patients, and this, with drug leakage into the tissues as noted by Dr. Gathua, can cause a tissue reaction leading to compartment syndrome and compromised blood flow in the forearm; the documented progressive swelling, pain and loss of function of the whole forearm supported compartment syndrome rather than radial artery spasm from a cannula; the Doppler scans could not establish the cause of the injury; a CT angiogram would have proved or disproved arterial injury but that imaging modality was not then available in Mombasa; and, decisively, the only conclusive and scientific means of ascertaining the cause of the gangrene would have been an autopsy of the amputated part with biopsy of the vessels, which was never done, so that the cause of the gangrene is now difficult to ascertain.
15. The 3rd defendant testified on his own behalf and called one witness. Dr. Elizabeth Awimbo (DW5), a consultant paediatrician and neonatologist of over thirty years' standing, produced her opinion on the management of the plaintiff dated 3rd October 2012. Her evidence was that the 3rd defendant kept good paediatric practice; that his diagnosis was correct; that his treatment plan and interventions were prompt and appropriate at each turn of expected and unexpected events; that he involved fellow professionals when called for, utilised all basic and specialised investigations then available, exercised due diligence in closely monitoring the evolution of the plaintiff's condition, and personally availed himself to assess the plaintiff up to three times a day; and that warm compression was an appropriate measure pending specialised investigation to establish the cause of the impaired circulation. In cross-examination she conceded that she was not in a position to conclude what caused the branula problem, and that an autopsy could have given a conclusive answer.
16. The 3rd defendant, Dr. Rajab M. Karega (DW6), a consultant paediatrician qualified since 1992 and at the material time in private consultancy at the Doctors' Plaza at the 1st defendant's hospital, adopted his witness statement dated 24 July 2023. He testified that on the evening of 7 August 2008 he reviewed the plaintiff, who had been referred from the KPA Clinic with fevers and a painful, swollen left elbow joint after four days' treatment there with Rocephin and Amikacin; he diagnosed cellulitis and septic arthritis of the left elbow joint, ordered a full haemogram and an X-ray of the left elbow, and started empirical treatment with Dalacin C, Brufen and Bactroban cream. He reviewed the child at 8.00 a.m. and again at 5.00 p.m. on 8 August 2008 and on both occasions the mother and nurses reported no complaints, the cardex confirming a calm night and an uneventful day; the blood report and X-ray favoured cellulitis without joint involvement. At about 4.00 a.m. on 9 August 2008 he was called by the nurses and told that the child was in severe pain in the right hand at the cannula site; he attended within thirty minutes; the cardex showed that the nurses had removed the cannula at 8.00 p.m. on 8 August 2008 following pain at the site, and they had not informed him of this. On examination he found a swollen right hand with poor blood flow, formed an impression of arterial spasm, and recognised it as a surgical emergency. He immediately telephoned Dr. Gathua, a senior surgeon, on whose advice warm compressions were started pending surgical review; he also changed the antibiotic to oral form. At 8.30 a.m. the hand was cold and dusky and he ordered a Doppler scan; Dr. Gathua reviewed the child at 9.45 a.m., concurred that blood flow was reduced, and recorded his suspicion of drug leakage into the tissues rather than needle injury to the artery. The Doppler scan of 9 August 2008 showed very reduced flow in the distal right radial artery but could not identify the cause. On 10 August 2008 he asked both parents whether they recalled any incident at the fixing of the needle, such as abnormal blood flow, pain or blanching, and both said they could not; he therefore considered other causes, including a clot, and prescribed Clexane. The fingers began turning gangrenous on 12 August 2008; a repeat Doppler was ordered together with blood tests to exclude autoimmune causes, which the father initially declined but accepted the following day; the repeat Doppler of 14 August 2008 alarmed him, showing occlusion extending to the cubital, axillary and brachial arteries, whereupon he urged the immediate transfer of the child to KNH as an emergency rather than await demarcation of the gangrene for amputation by Dr. Gathua. In cross-examination he stated that if a cannula goes into an artery the reaction and its detection would be immediate; that the causes of arterial spasm are several, including arterial injury, compartment syndrome, a clot, autoimmune disease and severe skin disease; that Dr. Nondi's report of 14 August 2008 was not conclusive of thrombosis; and that without an autopsy one cannot conclusively say what caused the problem.
Issues for determination
17. Upon consideration of the pleadings, the evidence and the rival submissions of counsel, the issues that commend themselves for determination are the following:
(i) whether the defendants, or any of them, owed the plaintiff a duty of care;
(ii) whether the plaintiff's case founded on intra-arterial cannulation is open to her on the pleadings;
(iii) whether the defendants, or any of them, breached the duty of care; (iv) whether the breach, if established, caused the loss of the plaintiff's right forearm;
(v) how liability, if established, should be borne as between the defendants; (vi) what damages, if any, the plaintiff is entitled to under the respective heads claimed; and
(vii) what orders should issue as to interest and costs.
18. The 3rd defendant's plea that this court lacks pecuniary jurisdiction was not pursued at the trial and is, in any event, without merit: this court enjoys unlimited original jurisdiction in civil matters under Article 165(3)(a) of the Constitution, and nothing in the value of the subject matter of this claim took it outside that jurisdiction when the suit was filed in 2009.
The burden and standard of proof
19. The legal burden of proof rests on the plaintiff throughout. Sections 107, 108 and 109 of the Evidence Act (Cap 80) enact the familiar principle that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. The standard is proof on a balance of probabilities. In claims of professional negligence against medical practitioners, the East African Court of Appeal in Pope John Paul's Hospital & Another v Baby Kasozi [1974] EA 221 cautioned that while a charge of professional negligence against a medical man is serious and clear proof of negligence is necessary so that negligence is not confused with misadventure, the burden of proof is not higher than in ordinary civil cases: the burden is to prove, on a preponderance of evidence, that the damage was caused by negligence and was not a question of misadventure.
20. Because the expert evidence in this case was in conflict, it bears restating that under section 48 of the Evidence Act the opinions of persons specially skilled in a science are admissible, but such opinions are not binding on the court. As the Court of Appeal held in Amosam Builders Developers Ltd v Betty Ngendo Gachie & 2 Others [2009] eKLR, the court must consider expert opinion along with the other evidence and form its own opinion on the matter in issue, and is at liberty to accept or reject the evidence of experts depending on the facts and circumstances of the case.
The duty of care
21. The existence of a duty of care presents no difficulty in this case. The neighbour principle articulated by Lord Atkin in Donoghue v Stevenson [1932] AC 562 finds its most obvious application in the relationship between a healthcare provider and a patient. As long ago as R v Bateman (1925) 94 LJKB 791 it was held that if a person holds himself out as possessing special skill and knowledge, and he is consulted as so possessing them by or on behalf of a patient, he owes a duty to that patient to use due caution, diligence, care, knowledge, skill and caution in administering the treatment. The content of that duty in the medical context was set out in Jimmy Paul Semenye v Aga Khan Hospital & 2 Others [2006] eKLR: once the doctor-patient relationship is established, the practitioner must possess the knowledge and skill required of a reasonably competent practitioner in the same specialty, and must exercise the care and judgment in their application to be expected of such a practitioner (see also BO (a minor suing through his next friend DOO) v Nathan Khamala & Another [2020] Eklr).
22. The 3rd defendant accepted the plaintiff as his patient on the evening of 7 August 2008, diagnosed her and directed her treatment; he plainly owed her the duty of a reasonably competent consultant paediatrician. The 2nd defendant, in undertaking the cannulation, owed her the duty of a reasonably competent medical officer performing that procedure. The 1st defendant, a hospital which admitted the plaintiff to its paediatric ward and undertook, through its nursing and resident medical staff, her round-the-clock care, owed her a duty to provide that care with reasonable skill and diligence. A hospital is answerable for the negligence of the professional staff, nurses and doctors alike, whom it employs to treat the patients it admits. See Gold v Essex County Council [1942] 2 KB 293 and Cassidy v Ministry of Health [1951] 2 KB 343, where Denning LJ observed that when a patient is treated by the staff whom the hospital authorities have appointed, the hospital authorities must answer for the way in which he was treated, and it is no answer that the patient cannot identify which particular member of staff was at fault. More recently the Supreme Court of the United Kingdom in Woodland v Essex County Council [2014] AC 537 recognised that a hospital's duty to patients it has admitted is of the non-delegable kind, that is, it is a duty not merely to take care, but to ensure that care is taken. I respectfully adopt those statements as sound expressions of the common law applicable in Kenya, where the right to the highest attainable standard of health under Article 43(1)(a) of the Constitution reinforces, though it does not replace, the common law duty.
The standard of care in medical negligence
23. The standard against which an allegation of medical negligence is measured is that laid down by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The test is the standard of the ordinary skilled man exercising and professing to have that special skill; a practitioner is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art, and there may be one or more perfectly proper standards. The Bolam test has been consistently applied in this jurisdiction; see, for instance, Ricarda Njoki Wahome v Attorney General & 2 Others [2015] eKLR, where the court held that a doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care, and not because, in a matter of opinion, he made an error of judgment, an approach consonant with Lord Fraser's observation in Whitehouse v Jordan [1981] 1 WLR 246 that an error of judgment may or may not be negligent, depending on whether it is one that a reasonably competent practitioner acting with ordinary care could have made.
24. Two glosses on Bolam must, however, be kept in view. First, as the House of Lords held in Bolitho v City and Hackney Health Authority [1998] AC 232, the court is not bound to absolve a defendant merely because a body of professional opinion supports his conduct; the professional opinion relied upon must be capable of withstanding logical analysis, and in the rare case where it cannot, the court is entitled to hold the practice negligent. Secondly, the claimant must also prove causation; as the Bolitho decision itself emphasises, the claimant must prove that had there been no negligence, the injury, loss and damage complained of would have been avoided or at least been much less. Foreign courts have sounded the same cautionary notes; for instance, the Supreme Court of India in Jacob Mathew v State of Punjab (2005) 6 SCC 1 and Kusum Sharma v Batra Hospital (2010) 3 SCC 480 warned against the tendency, when things have gone wrong, to look for a human actor to blame, and held that a professional is negligent only if he falls short of the standard of a reasonably competent practitioner in his field, passages which the 3rd defendant pressed upon me and which I accept as a correct statement of principle. As Denning LJ put it in Roe v Minister of Health [1954] 2 QB 66, we must not condemn as negligence that which is only a misadventure; but equally, as the same learned judge insisted, the courts must insist on due care for the patient at every point.
The pleadings objection
25. Before turning to the evidence on breach, I must resolve the objection strenuously advanced by Mr. Nanji for the 1st and 2nd defendants, that the plaintiff's case at trial, that the cannula was placed in the radial artery and not a vein, was a departure from her pleadings, and that this court, on the authority of Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] 2 EA 385 and the line of authority culminating in Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR, may not found a decision on an unpleaded issue.
26. The principle is not in doubt; parties are bound by their pleadings, and evidence at variance with the pleadings goes to no issue. But the principle must be applied to the pleadings as they actually stand, read fairly and as a whole. Three features of the Further Amended Plaint are decisive. First, paragraph 9 pleads that “as a result of the insertion of the needle on the plaintiff's wrist/forearm and the subsequent administration of antibiotic intravenously, the plaintiff developed profuse bleeding problems and/or incessant haemorrhaging”; an averment that the injury originated at, and from, the cannulation. Secondly, particular (v) of paragraph 13 alleges a failure “to prevent and/or arrest the minor's pain and or suffering upon insertion of the needle in her forearm and thus causing her severe bleeding.” Thirdly, and most significantly, paragraph 14(i) expressly pleads, as the first particular of damage and injury, “severe bleeding and pain due to intra-arterial injection.” The allegation of an intra-arterial injection is therefore on the face of the plaint. It might more elegantly have been placed among the particulars of negligence, but a defendant reading this plaint could have been left in no doubt that the manner of the cannulation, and specifically the assertion that the injection was intra-arterial, was squarely in issue.
27. Nor were the defendants in fact taken by surprise. They met the allegation head-on: the 2nd defendant testified in detail as to the colour and flow of the blood at insertion and the confirmation of the radial pulse; the 1st and 2nd defendants retained and called a consultant vascular surgeon, Dr. Sore, for the very purpose of rebutting the theory of arterial cannulation; and counsel sought and obtained time to deal with Dr. Mogire's evidence on the point. Where an unpleaded or imperfectly pleaded issue is nonetheless left by both parties to the court for decision, and is
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1. This suit was instituted by way of a plaint dated 31 July 2009 and filed on 24 September 2009 by the plaintiff, then a minor aged about three and a half years, suing through her parents as next friends. The plaint was amended in May 2023 and, pursuant to directions issued by this court on 28 January 2025, further amended by the Further Amended Plaint dated 31 January 2025 and filed on 7 February 2025. The plaintiff has in the intervening years attained the age of majority and now prosecutes the suit in her own name, Uchi Mwidhin Mwarua.
2. The gravamen of the plaintiff's case is that on or about 7 August 2008, then a child of three and a half years, she was referred from the Kenya Ports Authority (“KPA”) Clinic to the 1st defendant's hospital, Pandya Memorial Hospital, on account of an ailment of her left arm. At the hospital she was attended to by the 2nd and 3rd defendants. An intravenous line was fixed on the wrist of her right arm, the arm that had no complaint, through which antibiotics were administered. She avers that as a result of the insertion of the needle and the subsequent intravenous administration of the antibiotic, she developed profuse bleeding and incessant pain; that despite her mother's insistence for intervention, the hospital's doctors merely recommended immersion of the affected arm in warm water and the administration of soporific medication; that on 16 August 2008, following the 1st defendant's inability to arrest the deterioration of her right arm, she was referred to Kenyatta National Hospital (“KNH”) where a scan revealed severe vascular compromise with gangrene demarcating at five centimetres below the elbow; and that her right arm was consequently amputated below the elbow, leaving her permanently disabled.
3. At paragraph 13 of the Further Amended Plaint the plaintiff sets out thirteen particulars of negligence against the defendants, which may be compendiously summarised as: failure to exercise reasonable care and skill in diagnosis; injecting and treating the right arm instead of the referred left arm; failure to prescribe correct treatment; failure to prevent or arrest her pain and severe bleeding upon insertion of the needle; ignoring the complaints made by her mother; administering hot water over an arm that was turning black; administering antibiotics without proper diagnosis; carrying out their duties in breach of established medical practice; and failing to control or arrest the deterioration, bleeding, swelling and ultimately the gangrene that led to the amputation.
4. At paragraph 14 the plaintiff pleads the particulars of damage, injury and disability, namely:
(i) severe bleeding and pain due to intra-arterial injection;
(ii) amputation of the right forearm resulting from gangrene and severe vascular compromise demarcating 5 cm below the elbow;
(iii) development of sepsis over the left forearm with a pus-discharging wound below the left elbow; and
(iv) marked oedema of the right arm and right axilla.
5. Special damages of Kshs 141,891.00 have been particularised as medical expenses at Pandya Hospital (Kshs 68,676.00), X-ray (Kshs 3,000.00), scans (Kshs 6,000.00) and air ticket and other travel expenses (Kshs 64,215.00).
6. The plaintiff prays for judgment against the defendants jointly and severally for general damages for loss of use of the right forearm, future nursing/medical expenses and care, loss of future earnings and/or earning capacity, and pain and suffering; special damages of Kshs 141,891.00; costs; and interest.
7. The 1st defendant filed its defence on 18 November 2009 which it amended on 26 November 2009. The 2nd defendant filed his written statement of defence dated 28 May 2023. In their defences, the 1st and 2nd defendants aver that the plaintiff was admitted to the hospital on 7August 2008 from the KPA Clinic with a history of high fever and a swollen, tender left elbow joint; that she was admitted under the care of the 3rd defendant who examined her; that in accordance with the directions of the 3rd defendant, the 2nd defendant, then employed by the 1st defendant as a Resident Medical Officer, fixed an intravenous line which was tested and found to be functioning well, whereafter intravenous treatment was commenced without any problem. They deny that the plaintiff developed profuse bleeding or haemorrhaging; they narrate the events of the night of 8th/9th August 2008 culminating in the 3rd defendant's review of the child at 4.30 a.m.; and they deny any negligence, recklessness or breach of duty, averring that the 1st defendant's employees, including the 2nd defendant, exercised reasonable skill and care in accordance with the 3rd defendant's instructions. They specifically deny that the 3rd defendant was engaged by the 1st defendant, averring that he was a consultant paediatrician in private practice.
8. The 3rd defendant's statement of defence is dated 24 July 2023. He denies that the plaintiff was referred with an “ineffective process of the left arm” and avers that she was referred from the KPA Clinic with fevers and a painful, swollen left elbow which had already been treated at that clinic with powerful antibiotics. He admits reviewing the plaintiff's history and examining her on 7 August 2008 for the purposes of diagnosis, and admits that the 2nd defendant inserted the intravenous line. He admits that on 9 August 2008 a report was made of severe pain at the cannula site and that the cannula was removed for refixing; avers that upon consultation with Dr. Gathua, a senior surgeon, warm compressions were commenced to increase blood flow and the mode of administration of the antibiotic was changed; admits the transfer to KNH; and denies negligence, averring that he exercised reasonable care and skill throughout. He also questioned the pecuniary jurisdiction of this court, a point to which I shall return in due course.
The evidence
(a) The plaintiff's case
9. The plaintiff called two witnesses. PW1 was Fatuma Bakari Mwasadi, the plaintiff's mother, who adopted her witness statement as her evidence-in-chief. Her evidence was that the plaintiff, then aged three and a half years, was referred from the KPA Clinic and admitted at the 1st defendant's hospital on 7 August 2008 under the care of the 3rd defendant, who diagnosed cellulitis and possible septic arthritis of the left elbow and prescribed, among other treatment, an antibiotic to be administered intravenously. The 2nd defendant fixed the intravenous line on the child's right wrist in her presence. She testified that at the time of insertion of the needle, blood came out with a lot of force, spilling on the 2nd defendant; that whenever medicine was administered through the line, blood would enter the cannula and the child would cry in pain; that the right hand thereafter began to change colour and turn cold as if it had insufficient blood supply; and that the child was in such pain that she had to be sedated to sleep. She narrated the Doppler scans of 9 and 14 August 2008, the transfer to KNH on 16 August 2008, and the amputation of the child's right arm below the elbow on 21 August 2008. She testified that the plaintiff lost her dominant arm; that her ambition of becoming a police officer is now beyond reach; and that her education, career prospects and social standing have been gravely affected by stigma. She produced, among other exhibits, a school admission letter and progress reports. In cross-examination she conceded that the child was admitted under the care of Dr. Karega, who is the one who examined the minor, but she insisted that the blood at cannulation was spurting and bright red in colour, and maintained that the problems began on the night of 7 August 2008 and not 8 August 2008 as the hospital records suggest.
10. PW2 was Dr. James Kabora Mogire, an orthopaedic and trauma surgeon, who testified as the plaintiff's expert witness. He produced his Medical-in-Confidence report dated 14 November 2008 (Exhibit 15), an addendum report dated 18 September 2023, and an Appraisal of the Standard of Care dated 26 October 2023 (Exhibit 16). He first encountered the plaintiff at KNH on 16 August 2008, when he was asked to review her for a definitive test; he performed a nuclear uptake scan which showed that the right arm no longer had viable blood vessels. The arm was amputated on 21 August 2008 and the child discharged on 2 September 2008; he reviewed her thereafter on 26 September 2008 and 14 November 2008. His opinion was that the loss of the arm was avoidable; that the cannula was placed in the radial artery rather than a vein, as evidenced, in his view, by the spurting of blood at insertion described by the mother and by the Doppler findings of arterial spasm beginning at the radial artery at the very site of the cannula and later extending to the cubital and brachial arteries; that each forceful injection of Dalacin C against arterial pressure aggravated the injury and drove the drug into the soft tissues; and that proper supervision or verification of the cannula placement would have detected the error early enough to salvage the arm. He assessed the plaintiff's permanent incapacity at 50% on account of the loss of the right forearm below the elbow, and spoke of the severe physical, psychological and social trauma occasioned to her, and of the need for stump revision at the phases of growth spurt. In cross-examination he conceded that he does not practise paediatric medicine; that he does not personally cannulate his patients, resident medical officers routinely doing so, and that as a consultant his primary role, like the 3rd defendant's, is to diagnose and prescribe; that the handwritten cardex notes were never availed to him and his reports were not based on them, although such notes are relevant and useful; that no autopsy or biopsy was performed on the amputated limb; that the left elbow condition for which the child was admitted had resolved by the time of her admission at KNH; and that leakage of medicine into the tissues, as suggested by Dr. Gathua, remained a possibility.
(b)The defence case
11. The 1st and 2nd defendants called four witnesses. DW1, Ishmael Onchari, the 1st defendant's Director of Nursing Services, produced the hospital's records of the plaintiff's treatment, including the Nursing Report prepared by the then Matron, Mrs. Peace Emurwon, and the cardex notes; he explained that, save for Nurse Khalima Fondo, the nurses who attended the plaintiff had since left the 1st defendant's employment and their whereabouts were unknown.
12. DW2 was the 2nd defendant, Dr. Awadh Hemed, now an orthopaedic surgeon but at the material time a Resident Medical Officer employed by the 1st defendant. He adopted his statements of 14 August 2008 and 19 July 2023. His evidence was that on 7 August 2008 he was on call when the plaintiff was admitted into the paediatric ward from KPA under the care of the 3rd defendant; that he was called to fix an intravenous line, which he did with Nurse Tawa in the presence of both parents; that as he fixed the line he explained the process step by step, and Nurse Tawa confirmed with him that a vein had been cannulated, as evidenced by dark red (not bright red) blood which oozed rather than spurted; that he confirmed the presence of the radial pulse after fixing the line; that the line was tested by flushing with water for injection and found to flow smoothly without resistance; and that treatment commenced the same day without any problem. He was never called again about any problem with the line, and his involvement in the plaintiff's care ended there. He testified that intravenous access may properly be obtained from any accessible vein and that he would in any event avoid the affected limb; and that had there been any issue with the cannulation he would not have proceeded.
13. DW3, Nurse Khalima Fondo, a senior nurse in the 1st defendant's employment since 1995, adopted her statement. She was on duty on the night of 8 August 2008. At 8.00 p.m. she received the patient, whose mother reported that the child was complaining of a painful branula; she removed the branula “for refixing”; at 10.00 p.m. treatment was given and observations recorded (temperature 37.8°C, pulse 110, respiration 24); the Resident Medical Officer “was to attend and fix the branula”; the child was left to sleep, the branula to be refixed in the morning. At 2.00 a.m. observations were taken (temperature 37°C, pulse 100, respiration 22). At 3.20 a.m. the mother called complaining that the child's fingers could not move; the Resident Medical Officer was called to review the hands; at 3.30 a.m. Dr. Karega was telephoned and directed warm compresses, saying he was coming to see the patient; at 4.30 a.m. Dr. Karega attended, directed continuous warm compression, stopped the Dalacin C injection in favour of oral syrup, and prescribed Cataflam drops. On examination the palm had cyanosis radiating from the wrist upwards, though the digits could still move.
14. DW4 was Dr. Peter Aseyo Sore, a consultant general, cardiothoracic and vascular surgeon, who produced medical opinions dated 10 August 2023 and 16 October 2023. His evidence, based on his review of the treatment records, was that: the classical signs of arterial cannulation are bright red blood, pulsatile flow, upward movement of blood in the infusion tubing, and pain with distal ischaemia; neither the 2nd nor 3rd defendants nor any of the nurses on duty saw any sign of arterial cannulation; it was not wrong to place a cannula in the right hand since a cannula may be placed in any easily accessible vein; vascular insufficiency following radial artery cannulation is extremely rare because of the palmar arch, the collateral network by which the hand is supplied by both the ulnar and radial arteries, which is why the radial artery can be harvested for coronary bypass surgery; injury to the radial artery causing vascular insufficiency typically manifests in darkening of the fingertips, which did not occur here; clindamycin (Dalacin C) is known to cause thrombophlebitis in some patients, and this, with drug leakage into the tissues as noted by Dr. Gathua, can cause a tissue reaction leading to compartment syndrome and compromised blood flow in the forearm; the documented progressive swelling, pain and loss of function of the whole forearm supported compartment syndrome rather than radial artery spasm from a cannula; the Doppler scans could not establish the cause of the injury; a CT angiogram would have proved or disproved arterial injury but that imaging modality was not then available in Mombasa; and, decisively, the only conclusive and scientific means of ascertaining the cause of the gangrene would have been an autopsy of the amputated part with biopsy of the vessels, which was never done, so that the cause of the gangrene is now difficult to ascertain.
15. The 3rd defendant testified on his own behalf and called one witness. Dr. Elizabeth Awimbo (DW5), a consultant paediatrician and neonatologist of over thirty years' standing, produced her opinion on the management of the plaintiff dated 3rd October 2012. Her evidence was that the 3rd defendant kept good paediatric practice; that his diagnosis was correct; that his treatment plan and interventions were prompt and appropriate at each turn of expected and unexpected events; that he involved fellow professionals when called for, utilised all basic and specialised investigations then available, exercised due diligence in closely monitoring the evolution of the plaintiff's condition, and personally availed himself to assess the plaintiff up to three times a day; and that warm compression was an appropriate measure pending specialised investigation to establish the cause of the impaired circulation. In cross-examination she conceded that she was not in a position to conclude what caused the branula problem, and that an autopsy could have given a conclusive answer.
16. The 3rd defendant, Dr. Rajab M. Karega (DW6), a consultant paediatrician qualified since 1992 and at the material time in private consultancy at the Doctors' Plaza at the 1st defendant's hospital, adopted his witness statement dated 24 July 2023. He testified that on the evening of 7 August 2008 he reviewed the plaintiff, who had been referred from the KPA Clinic with fevers and a painful, swollen left elbow joint after four days' treatment there with Rocephin and Amikacin; he diagnosed cellulitis and septic arthritis of the left elbow joint, ordered a full haemogram and an X-ray of the left elbow, and started empirical treatment with Dalacin C, Brufen and Bactroban cream. He reviewed the child at 8.00 a.m. and again at 5.00 p.m. on 8 August 2008 and on both occasions the mother and nurses reported no complaints, the cardex confirming a calm night and an uneventful day; the blood report and X-ray favoured cellulitis without joint involvement. At about 4.00 a.m. on 9 August 2008 he was called by the nurses and told that the child was in severe pain in the right hand at the cannula site; he attended within thirty minutes; the cardex showed that the nurses had removed the cannula at 8.00 p.m. on 8 August 2008 following pain at the site, and they had not informed him of this. On examination he found a swollen right hand with poor blood flow, formed an impression of arterial spasm, and recognised it as a surgical emergency. He immediately telephoned Dr. Gathua, a senior surgeon, on whose advice warm compressions were started pending surgical review; he also changed the antibiotic to oral form. At 8.30 a.m. the hand was cold and dusky and he ordered a Doppler scan; Dr. Gathua reviewed the child at 9.45 a.m., concurred that blood flow was reduced, and recorded his suspicion of drug leakage into the tissues rather than needle injury to the artery. The Doppler scan of 9 August 2008 showed very reduced flow in the distal right radial artery but could not identify the cause. On 10 August 2008 he asked both parents whether they recalled any incident at the fixing of the needle, such as abnormal blood flow, pain or blanching, and both said they could not; he therefore considered other causes, including a clot, and prescribed Clexane. The fingers began turning gangrenous on 12 August 2008; a repeat Doppler was ordered together with blood tests to exclude autoimmune causes, which the father initially declined but accepted the following day; the repeat Doppler of 14 August 2008 alarmed him, showing occlusion extending to the cubital, axillary and brachial arteries, whereupon he urged the immediate transfer of the child to KNH as an emergency rather than await demarcation of the gangrene for amputation by Dr. Gathua. In cross-examination he stated that if a cannula goes into an artery the reaction and its detection would be immediate; that the causes of arterial spasm are several, including arterial injury, compartment syndrome, a clot, autoimmune disease and severe skin disease; that Dr. Nondi's report of 14 August 2008 was not conclusive of thrombosis; and that without an autopsy one cannot conclusively say what caused the problem.
Issues for determination
17. Upon consideration of the pleadings, the evidence and the rival submissions of counsel, the issues that commend themselves for determination are the following:
(i) whether the defendants, or any of them, owed the plaintiff a duty of care;
(ii) whether the plaintiff's case founded on intra-arterial cannulation is open to her on the pleadings;
(iii) whether the defendants, or any of them, breached the duty of care; (iv) whether the breach, if established, caused the loss of the plaintiff's right forearm;
(v) how liability, if established, should be borne as between the defendants; (vi) what damages, if any, the plaintiff is entitled to under the respective heads claimed; and
(vii) what orders should issue as to interest and costs.
18. The 3rd defendant's plea that this court lacks pecuniary jurisdiction was not pursued at the trial and is, in any event, without merit: this court enjoys unlimited original jurisdiction in civil matters under Article 165(3)(a) of the Constitution, and nothing in the value of the subject matter of this claim took it outside that jurisdiction when the suit was filed in 2009.
The burden and standard of proof
19. The legal burden of proof rests on the plaintiff throughout. Sections 107, 108 and 109 of the Evidence Act (Cap 80) enact the familiar principle that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. The standard is proof on a balance of probabilities. In claims of professional negligence against medical practitioners, the East African Court of Appeal in Pope John Paul's Hospital & Another v Baby Kasozi [1974] EA 221 cautioned that while a charge of professional negligence against a medical man is serious and clear proof of negligence is necessary so that negligence is not confused with misadventure, the burden of proof is not higher than in ordinary civil cases: the burden is to prove, on a preponderance of evidence, that the damage was caused by negligence and was not a question of misadventure.
20. Because the expert evidence in this case was in conflict, it bears restating that under section 48 of the Evidence Act the opinions of persons specially skilled in a science are admissible, but such opinions are not binding on the court. As the Court of Appeal held in Amosam Builders Developers Ltd v Betty Ngendo Gachie & 2 Others [2009] eKLR, the court must consider expert opinion along with the other evidence and form its own opinion on the matter in issue, and is at liberty to accept or reject the evidence of experts depending on the facts and circumstances of the case.
The duty of care
21. The existence of a duty of care presents no difficulty in this case. The neighbour principle articulated by Lord Atkin in Donoghue v Stevenson [1932] AC 562 finds its most obvious application in the relationship between a healthcare provider and a patient. As long ago as R v Bateman (1925) 94 LJKB 791 it was held that if a person holds himself out as possessing special skill and knowledge, and he is consulted as so possessing them by or on behalf of a patient, he owes a duty to that patient to use due caution, diligence, care, knowledge, skill and caution in administering the treatment. The content of that duty in the medical context was set out in Jimmy Paul Semenye v Aga Khan Hospital & 2 Others [2006] eKLR: once the doctor-patient relationship is established, the practitioner must possess the knowledge and skill required of a reasonably competent practitioner in the same specialty, and must exercise the care and judgment in their application to be expected of such a practitioner (see also BO (a minor suing through his next friend DOO) v Nathan Khamala & Another [2020] Eklr).
22. The 3rd defendant accepted the plaintiff as his patient on the evening of 7 August 2008, diagnosed her and directed her treatment; he plainly owed her the duty of a reasonably competent consultant paediatrician. The 2nd defendant, in undertaking the cannulation, owed her the duty of a reasonably competent medical officer performing that procedure. The 1st defendant, a hospital which admitted the plaintiff to its paediatric ward and undertook, through its nursing and resident medical staff, her round-the-clock care, owed her a duty to provide that care with reasonable skill and diligence. A hospital is answerable for the negligence of the professional staff, nurses and doctors alike, whom it employs to treat the patients it admits. See Gold v Essex County Council [1942] 2 KB 293 and Cassidy v Ministry of Health [1951] 2 KB 343, where Denning LJ observed that when a patient is treated by the staff whom the hospital authorities have appointed, the hospital authorities must answer for the way in which he was treated, and it is no answer that the patient cannot identify which particular member of staff was at fault. More recently the Supreme Court of the United Kingdom in Woodland v Essex County Council [2014] AC 537 recognised that a hospital's duty to patients it has admitted is of the non-delegable kind, that is, it is a duty not merely to take care, but to ensure that care is taken. I respectfully adopt those statements as sound expressions of the common law applicable in Kenya, where the right to the highest attainable standard of health under Article 43(1)(a) of the Constitution reinforces, though it does not replace, the common law duty.
The standard of care in medical negligence
23. The standard against which an allegation of medical negligence is measured is that laid down by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The test is the standard of the ordinary skilled man exercising and professing to have that special skill; a practitioner is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion skilled in that particular art, and there may be one or more perfectly proper standards. The Bolam test has been consistently applied in this jurisdiction; see, for instance, Ricarda Njoki Wahome v Attorney General & 2 Others [2015] eKLR, where the court held that a doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care, and not because, in a matter of opinion, he made an error of judgment, an approach consonant with Lord Fraser's observation in Whitehouse v Jordan [1981] 1 WLR 246 that an error of judgment may or may not be negligent, depending on whether it is one that a reasonably competent practitioner acting with ordinary care could have made.
24. Two glosses on Bolam must, however, be kept in view. First, as the House of Lords held in Bolitho v City and Hackney Health Authority [1998] AC 232, the court is not bound to absolve a defendant merely because a body of professional opinion supports his conduct; the professional opinion relied upon must be capable of withstanding logical analysis, and in the rare case where it cannot, the court is entitled to hold the practice negligent. Secondly, the claimant must also prove causation; as the Bolitho decision itself emphasises, the claimant must prove that had there been no negligence, the injury, loss and damage complained of would have been avoided or at least been much less. Foreign courts have sounded the same cautionary notes; for instance, the Supreme Court of India in Jacob Mathew v State of Punjab (2005) 6 SCC 1 and Kusum Sharma v Batra Hospital (2010) 3 SCC 480 warned against the tendency, when things have gone wrong, to look for a human actor to blame, and held that a professional is negligent only if he falls short of the standard of a reasonably competent practitioner in his field, passages which the 3rd defendant pressed upon me and which I accept as a correct statement of principle. As Denning LJ put it in Roe v Minister of Health [1954] 2 QB 66, we must not condemn as negligence that which is only a misadventure; but equally, as the same learned judge insisted, the courts must insist on due care for the patient at every point.
The pleadings objection
25. Before turning to the evidence on breach, I must resolve the objection strenuously advanced by Mr. Nanji for the 1st and 2nd defendants, that the plaintiff's case at trial, that the cannula was placed in the radial artery and not a vein, was a departure from her pleadings, and that this court, on the authority of Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] 2 EA 385 and the line of authority culminating in Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR, may not found a decision on an unpleaded issue.
26. The principle is not in doubt; parties are bound by their pleadings, and evidence at variance with the pleadings goes to no issue. But the principle must be applied to the pleadings as they actually stand, read fairly and as a whole. Three features of the Further Amended Plaint are decisive. First, paragraph 9 pleads that “as a result of the insertion of the needle on the plaintiff's wrist/forearm and the subsequent administration of antibiotic intravenously, the plaintiff developed profuse bleeding problems and/or incessant haemorrhaging”; an averment that the injury originated at, and from, the cannulation. Secondly, particular (v) of paragraph 13 alleges a failure “to prevent and/or arrest the minor's pain and or suffering upon insertion of the needle in her forearm and thus causing her severe bleeding.” Thirdly, and most significantly, paragraph 14(i) expressly pleads, as the first particular of damage and injury, “severe bleeding and pain due to intra-arterial injection.” The allegation of an intra-arterial injection is therefore on the face of the plaint. It might more elegantly have been placed among the particulars of negligence, but a defendant reading this plaint could have been left in no doubt that the manner of the cannulation, and specifically the assertion that the injection was intra-arterial, was squarely in issue.
27. Nor were the defendants in fact taken by surprise. They met the allegation head-on: the 2nd defendant testified in detail as to the colour and flow of the blood at insertion and the confirmation of the radial pulse; the 1st and 2nd defendants retained and called a consultant vascular surgeon, Dr. Sore, for the very purpose of rebutting the theory of arterial cannulation; and counsel sought and obtained time to deal with Dr. Mogire's evidence on the point. Where an unpleaded or imperfectly pleaded issue is nonetheless left by both parties to the court for decision, and is
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