' '' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. E195 ( consolidated with CIVIL APPEAL NO. E190 OF 2021
UNIVERSITY OF NAIROBI ----------------------------.-------- APPELLANT
-VERSUS-
OCHIENG G. MBEO (Suing on Behalf of the Estate of the Late PETRONILLA OKINYO MBEO) --------------------.- 1 ST RESPONDENT
AGA KHAN UNIVERSITY HOSPITAL --------------- 2 ND RESPONDENT
DR. CAROLINE ODULA -------------------------------- 3 RD RESPONDENT
DR. SAMSON MIYORO ------------------------------.- 4 TH RESPONDENT
(Being an Appeal from the Judgment and Decree of Nairobi CMCC No. 919 of 2018 delivered by the Hon. G.A. Mmasi, Senior Principal Magistrate dated 15 th March 2021)
CONSOLIDATED JUDGMENT
INTRODUCTION
Two appeals were filed by the parties in CMCC No. 919 of 2018. Appeal No. 190 of 2021 was lodged on 13th April 2021. The Appellant is the Aga Khan University Hospital, whilst the respondents are Ochieng G. Mbeo (1st Respondent), Dr Caroline Odula (2nd Respondent), Dr Samson Miyoro (3rd Respondent), and the University of Nairobi (4th Respondent). On 14th April 2021, Civil Appeal No. 195 of 2021 was submitted by the University of Nairobi, the Appellant. The respondents include Ochieng G. Mbeo (suing on behalf of the estate of the late Petronila Okinyo Mbeo), Aga Khan University Hospital (2nd Respondent), Dr Caroline Odula (3rd Respondent), and Dr Samson Miyoro (4th Respondent). The Appellant in HCCA No. 190 of 2021 seeks to have the appeal allowed, the judgment of the Trial Magistrate against it overturned, and the suit in the lower court dismissed with costs. The Appellant also requests that it be awarded costs of the appeal to be paid by the 1st Respondent. In HCCA No. 195 of 2021, the Appellant seeks the following orders: that the appeal be allowed, the judgment of the lower court be set aside with costs, that the court substitute the lower court’s judgment with an appropriate one against the Respondents, and that the costs of the appeal be awarded. Appeal No. 195 of 2021 was filed a day after Appeal No. 190 of 2021. The two appeals challenge the Trial Magistrate’s findings in CMCC No. 919 of 2018. When I took over the matter, the parties did not agree that the appeals had been consolidated. I have reviewed the court proceedings and find that although the parties mentioned that the appeals should be consolidated, neither party filed a consent, nor is there a court order on the same. The last order I issued in the matter was that the court would deliver judgments in HCCA No. 190 of 2021 and 195 of 2021. However, after considering the issues in each appeal, I find that the appellants, who were defendants in CMCC No. 919 of 2018, have raised essentially the same issues in their appeals, which I will later specify. I also note that most of the handwritten proceedings are in HCCA 195 of 2021. When I issued the order in HCCA No. 195 of 2021, I had not yet reviewed the Memoranda of Appeal in each case. Having now done so, I believe that a consolidated judgment is appropriate since the issues in both appeals concern the findings of the Trial Magistrate relating to liability and quantum. Therefore, this judgment will be in HCCA 195 of 2021, where all parties involved in HCCA 190 of 2021 are also parties. No prejudice will be caused to any party, as I will consider the issues raised in a manner I believe each will understand as stemming from CMCC No. 919 of 2018.
The Appeal before this Court emanates from a civil suit filed by the 1 st Respondent vide his plaint dated 15 th February 2018 seeking the following reliefs: -
General Damages under the Law Reform Act and Fatal Accident Act;
Aggravated Damages;
Special Damages to be ascertained;
Interest on (1) and (2) above;
The costs of the suit;
Any other relief that the court deems just to grant.
The plaintiff’s case was that the late Petronilla Okinyo Mbeo, who was his deceased wife, died around 15th June 2017. He attributed her death to negligence by the Appellant as well as the 2nd, 3rd, and 4th Respondents in how they managed and/or treated her while she was under their care. Specifically, the doctors involved in the care of the deceased from 30th July 2016 to December 2016 failed to inform her and/or her relatives that they had discovered she was suffering from a terminal illness. As a result, the deceased’s life was put at risk because she did not receive timely treatment, including but not limited to the start of chemotherapy that could have saved her.
BACKGROUND/PLEADINGS
The 1st Respondent stated that the deceased underwent a hysterectomy carried out by the 3rd Respondent, Dr. Odula, who was employed by the appellant. This procedure took place on 1st August 2016 at the 2nd Respondent''''s health facility. The operation was intended to remove the deceased’s uterus for diagnostic reasons.
Following that procedure, follow-up management was conducted by the 4th Respondent, who was employed by the appellant. It was argued that the first surgical procedure performed by the 3rd Respondent was negligently carried out, resulting in perforation of the deceased’s intestines. This necessitated a series of subsequent surgeries performed by Prof. Saidi Hasssan (now deceased), an employee of the 2nd Respondent. The said doctor aimed to correct the deceased’s intestines. However, her condition did not improve.
Thus, the deceased was attended to by Dr. Gladwell Kiarie in January 2017. Upon examination, the doctor confirmed that the deceased had undergone a hysterectomy in August 2016. However, no post-operative follow-up was performed. During histological examination, the doctor identified an endometrial tumour in the deceased''''s body. This diagnosis concerning the deceased’s uterus was received by the 3rd Respondent on 8th October 2016.
The 1st Respondent stated that they were never informed either by the 3rd Respondent or the late Prof. Saidi Hassan that the deceased had an endometrial tumour requiring post-operative follow-up. This information was only revealed to them when the deceased was examined by Dr. Kairie while requesting the deceased’s histology report for August 2016 from the 2nd Respondent’s Surgical Department on 22nd February 2017.
It was his case that the management provided by Dr. Kiarie could not save the deceased’s life because it was initiated too late when her condition had already worsened. The deterioration of her health was attributable to the failure of the appellant, the 2nd, 3rd, and 4th Respondents to provide timely post-operative follow-up, which led to her death on 15th June 2017.
It was the 1st Respondent’s further case that a post-mortem conducted on 3rd July 2017 on the body of the deceased confirmed that the deceased died due to endometrial carcinoma. He accused the 3rd and 4th Respondents of negligently mismanaging the deceased, leading to her premature death. He also faulted the 2nd Respondent for negligently neglecting to observe due care of the deceased at its facility during admission on 30th July 2016. He averred that this was based on the fact that these parties owed a duty of care and an implied contractual obligation to the deceased.
The 1st Respondent outlined the details of negligence in paragraph 23 of the plaint. He explained that since the deceased was 61 years old at the time of her death, employed as a permanent and pensionable worker for the appellant, and earning a monthly salary of Kshs. 280,000/=. with nine years remaining until retirement, the deceased’s estate should be awarded compensation for her wrongful death.
The 3rd Respondent, Dr. Caroline Odula, filed her statement of defence dated 28th March 2018. She denied the contents of the plaint. In particular, she denied being negligent in treating and diagnosing the deceased. She also denied failing to report that the deceased was suffering from a terminal illness that endangered her life. She admitted that she carried out the surgery on the deceased on 1st August 2016 at the 2nd Respondent''''s facility, in the presence of Dr. Wanjohi, a colleague from the appellant’s institution, and anaesthetist Dr. Devi Mong’are.
The 3rd Respondent stated that she examined the deceased daily until the 6th post-operative day after the surgery, when the deceased was discharged. She stated that she advised the deceased to continue with wound dressing on alternate days at a facility of her choice.
The 3rd Respondent stated that her call week concluded on 8th August 2016 at 0800 hrs when she handed over the patient to her gynaecology colleagues. She went on her annual leave from 19th August 2016 to 9th September 2016.
She further stated that the deceased was a general patient at the University of Nairobi Health Services, and whenever readmitted for care under different specialities, she was neither on call nor informed. She denied receiving the results and/or diagnosis made on the deceased’s uterus on 8th October 2016 as alleged, stating that she was only informed of this in mid-February 2017 by Dr Doreen Asimba, the Deputy Chief Medical Officer of the appellant. That was when she was told that the uterus and ovary samples of the deceased revealed adenocarcinoma of the uterus. At that point, the deceased was under the care of radiotherapists and oncologists.
The 3rd Respondent denied any mismanagement of the deceased, lack of post-operative follow-up, or failure to institute such follow-up in a timely manner. Acknowledging her duty of care towards the deceased, she asserted that she had fulfilled this obligation by providing professional care of high standards and exercising all reasonable skills when attending to the deceased.
The 4th Respondent filed his statement of defence dated 18th November 2019. He denied the contents of the plaint. He averred that he was not the deceased’s primary doctor or surgeon who attended to her, as the deceased chose the 3rd Respondent as her primary obstetrician and gynaecologist. He stated that it was the 3rd Respondent who recommended a hysterectomy for the deceased, and affirmed that he was not part of the team that performed the surgery.
He stated that the deceased was never handed over to him and that he was only called upon by the then Chief Medical Officer – University of Nairobi, the late Dr. M.R.B. Otieno, who informed him of the deceased’s re-admission to the 2nd Respondent’s facility on 10th August 2016. It was then that he was asked to check on her progress, and he observed that her wound had sepsis, prompting him to commence treatment.
The 4th Respondent stated that following discussions with Dr. Otieno, it was advised that a General Surgeon should attend to the wound. It was at this point that Professor Hassan Saidi, a General Surgeon, assumed responsibility for the treatment of the wound sepsis. The 4th Respondent further stated that, at this stage, the mentioned Professor remained a consultant while the primary treatment was conducted by the 2nd Respondent’s surgical team.
The 4th Respondent denied that the treatment initiated on 10th August 2016 was related to the deceased’s intestines. Instead, he explained that it was intended to treat the developed wound sepsis at the surgical site. He also denied being aware of the histology report or the results of the hysterectomy procedure, as these had never been uploaded to the 2nd Respondent’s system or the deceased’s file. Consequently, he was unaware that the deceased had endometrial adenocarcinoma. He expressed the view that, as a standard practice, disclosure of the histology report—when it was positive or conclusive—should only be made to the patient’s primary doctor or next of kin.
He further stated that even if they had received the results from the hysterectomy, treating the wound sepsis was an emergency and a priority because it would have impacted any subsequent treatment for the deceased’s alleged condition. He recalled that the deceased was discharged in good condition on 5th September 2016 and denied ever having any contact with the deceased after the discharge.
He also stated that any allegations of negligence are unrelated to the cause of the deceased’s death. He argued that the progression of her condition was not caused by the issues raised in the plaint. In his view, the deceased died from fluid loss due to vomiting and diarrhoea, which resulted in hypovolemic shock. He asserted that he was never negligent in any way that could have caused injury to the deceased from the treatment he provided for the wound sepsis.
The 4th Respondent attributed negligence to the deceased, the 1st Respondent, and the 2nd Respondent for failing to exercise reasonable care and skill to prevent the death. He detailed the instances of negligence as outlined in the plaint and pleaded the defence of novus actus interveniens .
The 2nd Respondent filed its statement of defence dated 7th September 2018. It denied the contents of the plaint and put the plaintiff to strict proof. It averred that, although the post mortem was conducted on 3rd July 2018, and although the 3rd and 4th Respondents were highly qualified doctors, they were not its employees. Finally, it denied the particulars of negligence set out in the plaint.
The appellant filed its statement of defence dated 15th October 2019, denying the contents of the plaint and putting the 1st Respondent to strict proof. It was its case that although the 3rd and 4th Respondents were its employees, they were not negligent in any way. Therefore, the appellant was not vicariously liable. It also stated that the deceased was successfully operated on by the 1st Defendant, together with Dr Wanjohi, on 1st August 2016. Subsequently, samples of the removed tissues were sent to the 2nd Respondent’s laboratory for analysis and a pathology report.
It was stated that the deceased was discharged on 7th August 2016. The surgery performed was to manage menopausal bleeding. It denied that the deceased suffered any perforation of the intestines during the operation, as alleged, or that any corrective surgery was carried out. Instead, further post-operative procedures were performed on the deceased’s wound by the 2nd Respondent’s surgical team led by Dr. Hassan Saidi, due to the fact that the appellant did not have general surgeons.
The appellant stated that the 2nd Respondent provided in-patient services to the deceased unless consultation with its doctors was necessary. At the time of the deceased’s review by the 4th Respondent and the 2nd Respondent’s surgical team, the histology report was not available for their review and advice. As a result, they were unaware that the deceased had endometrial adenocarcinoma; this information was only known to the 2nd Respondent.
It stated that it could not reasonably be expected to obtain the said information since the deceased’s pathology results were neither posted on the 2nd Respondent’s internal system nor issued to the appellant, the 3rd, and 4th Respondents.
It was further alleged that the pathology results were only brought to their attention on 16th February 2017. That was when the acting Chief Medical Officer, Dr. Doreen Asimba, reviewed the deceased’s MRI pelvic report from the 2nd Respondent and noted that the deceased suffered from endometrial adenocarcinoma, upon which she immediately initiated curative and management procedures.
It was their argument that by the time the deceased was operated on 1st August 2016, she was already suffering from the said disease, which, despite being at an advanced and rapidly progressing stage, was being well managed by the appellant’s team together with the 4th Respondent; that the deceased was successfully treated and attended to at the appellant’s hospital on different dates until 15th June 2021.
The appellant argued that the doctors of the 2nd Respondent, to the exclusion of the appellant, failed and wilfully neglected to take adequate measures to provide life-saving medical care to the deceased. It stated that the deceased died due to hypovolemic shock caused by fluid loss from vomiting and diarrhoea over the course of a week. It was not foreseeable that the deceased would die as a result of the endometrial carcinoma, and the defence of novus actus interveniens was applicable.
It was averred that the alleged negligence was not related to the cause of death, as the development of the deceased’s condition was never caused by the matters alleged. It was stated that the deceased did not suffer any injuries from the medical treatment provided and that the appellant did everything medically possible to discharge its duty. Instead, it attributed any negligence to the deceased, the 1st and 2nd Respondents, and specified this in paragraph 5 of its Defence. It further sought indemnity from the other Defendants.
JUDGMENT OF THE TRIAL COURT
The matter was set down for hearing, and at its conclusion, the trial court entered judgment in favour of the 1 st Respondent as follows:
“Liability at 100% against the Defendants with the 4 th Respondent being vicariously liable for the 1 st and 2 nd Defendants who were its employees.
General Damages for Injury – Kshs. 11,720,000/=
Loss of life expectancy – Kshs. 100,000/=
Aggravated Damages against the 1 st and 3 rd Defendants – Kshs. 1,000,000/=
TOTAL – Kshs. 12,820,000/=
Costs of the Suit.”
THE APPEAL
Aggrieved by the above decision, the appellant in HCCA No.195 of 2021 filed the present appeal via its memorandum of appeal dated 14th April 2021. The appellant sought to set aside the judgment of the trial court with costs and to have it replaced with an order entering judgment against the Respondent with costs of the appeal. I have already indicated the relief sought by the Appellant in HCCA No. 190 of 2021. Appeal No. 195 of 2021 raises twelve (12) grounds of appeal, which are reproduced as follows: -
GROUNDS OF APPEAL IN HCCA NO. 190 OF 2021
That the Learned Trial Magistrate erred in law by making an improper analysis of the pleadings and evidence adduced in support of the Appellant’s and the Respondents’ averments, leading to an erroneous decision in the matter.
That the Learned Magistrate erred in law and in fact in failing to take into account material aspects of the evidence in support of the Appellant’s defence and eventually arriving at the finding that the Appellant was negligent in not informing the 1 st Respondent of the lab results.
That the Learned Trial Magistrate erred in finding against the weight of evidence that the Appellant was negligent.
That the Learned trial Magistrate erred in fact and in law in making an award for general damages amounting to Kshs.11,720,000/- which was manifestly excessive as to represent an entirely erroneous estimate.
That the Learned Trial Magistrate erred in law in awarding aggravated damages of KShs. 500,000/-.
That the Learned Trial Magistrate’s Judgment in the assessment of the available evidence in proof of the Appellant’s defense is erroneous and based on wrong principles.
That the Learned Trial Magistrate misdirected herself, misapprehended and misconstrued the legal principles in the case before her and by reason thereof came to a wrong conclusion
GROUNDS OF APPEAL IN HCCA NO. 195 OF 2021
The Learned Trial Magistrate erred in law and in fact in dismissing the Appellant’s defence notwithstanding the evidence on record in support of its case.
The Learned Trial Magistrate erred in law and in fact in failing to consider the issues raised by the Appellant in its Statement of Defence, cross-examination by its advocates and submissions filed.
The Learned Trial Magistrate erred in law and in fact in misunderstanding the evidence tendered by the parties at the trial thereby arriving at wrong findings.
The Learned Trial Magistrate erred in law and in fact in wholly dismissing the Appellant’s defence despite the same being supported by the evidence of the 4 th Respondent.
The Learned Trial Magistrate erred in law and in fact in finding that the Appellant was 100% liable to the 1 st Respondent despite finding that Prof. Saidi Hassan, an employee of the 2 nd Respondent liable for negligence.
The Learned Trial Magistrate erred in law and in fact in holding that the deceased’s death was as a result of cancer and/or that the same was by reason of lack of post-operation follow up in spite of contradictory evidence in the post-mortem report and certificate of death.
The Learned Trial Magistrate erred in law and in fact I failing to find that the deceased and the Plaintiff were in any even guilty of contributory negligence despite abundant evidence of the same.
The Learned Trial Magistrate erred in law and in fact in failing to find that the Appellant had afforded the deceased adequate medical care and was not liable.
The Learned Trial Magistrate erred in law and in fact in finding that the Appellant was vicariously liable for the actions of the 3 rd and 4 th Respondent s.
The Learned Trial Magistrate erred in law and in fact in awarding the 1 st Respondent General Damages of Kshs. 11,720,000/= without any proof and/or justification therefore which damages were excessive in the circumstances.
The Learned Trial Magistrate erred in law and in fact in failing to find that the 2 nd Respondent wholly liable for the deceased’s death.
The Learned Trial Magistrate erred in law and in fact in delivering a judgment that was contradictory.
The appeal was admitted for hearing and the parties took directions to canvass it by way of written submissions which are now on record.
SUBMISSIONS
APPELLANT’S SUBMISSIONS
The appellant filed written submissions along with a list of authorities dated 21st September 2023. Counsel submitted on behalf of the appellant that the judgment was contradictory and baseless, as it was found liable in negligence for causing the death of the deceased. They opined that it was actually the 2nd, 3rd, and 4th Respondents who mismanaged the deceased, leading to her death. Counsel also accused the deceased of negligence for not following her prescriptions as advised medically.
Looking at the evidence of Dr. Caroline Odula and Dr. Samson Miyoro, it was the appellant’s submission that they provided the deceased with adequate medical care. It argued that the evidence on record proved that its employees exercised reasonable care and skill throughout the management of the deceased, particularly on the 15th day of June 2017 when she passed on.
It pointed out that several reasons were presented to the court attributing the cause of the deceased’s death. As there were multiple speculative opinions about the cause of death, it argued that it could not be held responsible. This is because the death certificate stated that the deceased died from endometrial carcinoma due to cardiopulmonary arrest on 15th June 2017.
Learned Counsel further stated that the deceased died while waiting for emergency lifesaving medical intervention at the 2nd Respondent’s premises, which lacked a vacant High Dependency Unit bed to accommodate her. It submitted that the 2nd Respondent failed to implement timely emergency procedures upon receiving the deceased in a life-threatening condition on that fateful day. It urged this court to note that this was admitted by the 2nd Respondent and that it ultimately led to the deceased’s death.
The appellant then submitted that when the 4th Respondent took over management of the deceased, he did not have the password to access the 2nd Respondent''''s digital records. Accordingly, it was not brought to his attention that the deceased suffered a terminal illness. That the trial court properly found that the late Professor Hassan did not disclose such crucial information to the 4th Respondent.
Submitting on contributory negligence, the appellant attributed blame to the deceased, the 1st Respondent, and the 2nd Respondent for their alleged negligent contributions to the deceased''''s death. It explained that the 1st Respondent resided with the deceased as her husband and primary carer. Therefore, he owed her a duty of care to ensure she was properly nourished, adhered to her medication, and attended laboratory tests.
It blamed him for failing to take the deceased to the appellant’s facility for medical attention and for only waiting until she was severely deteriorated. The appellant submitted that she had been vomiting and suffering from diarrhoea for one week. It further blamed the 1st Respondent for not taking quicker action to have the deceased undergo a pap smear when she was due in January 2016, and submitted that he was not even aware of its necessity. Therefore, it proposed that negligence be attributed to the deceased and the 1st Respondent at 70% and to the 2nd Respondent at 30%.
The appellant argued that, given the circumstances, it was not responsible and therefore should not compensate the deceased’s estate. It objected to the 1st Respondent’s submission of the deceased’s net earnings, which was introduced outside the hearing, and pointed out that there was no basis for the award of Kshs. 11,720,000.00. The learned counsel contended that the award was excessively high and failed to consider the deceased’s medical history, which diminished her chances of survival until retirement age. It requested that the appeal be allowed.
1 ST RESPONDENT’S SUBMISSIONS
The 1 st Respondent did not file any written submissions
2 ND RESPONDENT ’S WRITTEN SUBMISSIONS
The 2nd Respondent filed written submissions and a list of authorities, both dated 22nd September 2023. It argued that it was undisputed that whenever a post-menopausal woman presented with spotting, it was indicative to any obstetrics and gynaecology practitioner that such spotting was most often due to a cancerous invasion. This understanding led the 3rd Respondent to conduct a biopsy on the deceased.
The 2nd Respondent outlined the chronology of the deceased’s treatment to demonstrate that Dr. Gakinya posted the results of the deceased’s biopsy, which were uploaded onto the electronic platform on 11th August 2016. It was stated that these could be accessed by both the 3rd and 4th Respondents, as they had clinical and admission privileges permitting them to do so. The submission was that the 2nd Respondent only tested the specimen, did so promptly, and submitted the results in a professional manner.
According to the 2nd Respondent, the appellant, the 3rd and 4th Respondents failed to follow up on the results. As such, they were negligent and callous, as their actions fell below the standard expected of a reasonably competent medical practitioner. It was submitted that a positive diagnosis of cancer ought to be disclosed to a patient by his or her primary caregiver and not by any other person or entity. Therefore, it was incumbent on the 3rd and 4th Respondents to follow up on the biopsy results; practitioners who had clinical and admission privileges at its facility.
The 2nd Respondent reaffirmed that the results were posted rapidly. The responsibility of accessing results therefore rested with the primary caregiver. It argued that since pathologists perform hundreds of tests daily, it would not be practical to inform each doctor and/or patient about the results. In its view, it was not the obligation of the 2nd Respondent to bring the deceased’s disputed histology report to the attention of the 4th Respondent. In any event, Professor Saidi Hassan only offered expertise in the management of wound sepsis, which she did adequately.
It highlighted the fact that the results were pending, as indicated in the discharge summary and during the patient’s second admission. In its view, this demonstrated that the 4th Respondent was aware. It is argued that the 3rd and 4th Respondents never requested physical copies of the results, yet they were aware of this requirement.
Regarding the entitlement to awards by the 1st Respondent, the 2nd Respondent contended that the damages awarded by the trial court were excessively high. Moreover, the deceased’s earnings were not sufficiently proved on a balance of probabilities. It argued that the deceased’s estate should be awarded Kshs. 1,646,400.00, calculated as follows: 280,000 × 12 × 1 × 1/3 (for taxes) × 1/3 (for dependents). Concerning pain and suffering, the 2nd Respondent submitted that it was not proven that the deceased experienced pain prior to her death, as indicated by the medical records of 15th June 2017. It agreed with the trial court’s findings regarding the loss of expectancy of life.
4 TH RESPONDENT ’S WRITTEN SUBMISSIONS
The 4th Respondent filed written submissions dated 3rd March 2024. The 4th Respondent submitted that the deceased was already ill when she visited the appellant’s facility. The 4th Respondent recommended a hysterectomy, which was performed by the 3rd Respondent. During the procedure, complications arose, requiring her admission to the 2nd Respondent. The 4th Respondent then summarised the evidence at trial, concluding that the 2nd Respondent was negligent in failing to provide the deceased’s report, either physically or in the digital system.
The 4th Respondent reaffirmed that it was not disputed the deceased was admitted and treated at the 2nd Respondent’s facility. A duty of care therefore arose. The Respondent argued that there was no connection between the cause of death and the consultation services provided by the 4th Respondent. However, the cause of death was attributed to the 2nd Respondent, where the deceased died. The 4th Respondent noted that the 2nd Respondent’s staff did not adequately manage her.
The 4th Respondent argued that the 3rd and 4th Respondents were not liable because they exercised the reasonable diligence and skill expected of them as professionals in managing the deceased. They maintained that there was no basis for awarding general damages against the 4th Responden
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. E195 ( consolidated with CIVIL APPEAL NO. E190 OF 2021
UNIVERSITY OF NAIROBI ----------------------------.-------- APPELLANT
-VERSUS-
OCHIENG G. MBEO (Suing on Behalf of the Estate of the Late PETRONILLA OKINYO MBEO) --------------------.- 1 ST RESPONDENT
AGA KHAN UNIVERSITY HOSPITAL --------------- 2 ND RESPONDENT
DR. CAROLINE ODULA -------------------------------- 3 RD RESPONDENT
DR. SAMSON MIYORO ------------------------------.- 4 TH RESPONDENT
(Being an Appeal from the Judgment and Decree of Nairobi CMCC No. 919 of 2018 delivered by the Hon. G.A. Mmasi, Senior Principal Magistrate dated 15 th March 2021)
CONSOLIDATED JUDGMENT
INTRODUCTION
Two appeals were filed by the parties in CMCC No. 919 of 2018. Appeal No. 190 of 2021 was lodged on 13th April 2021. The Appellant is the Aga Khan University Hospital, whilst the respondents are Ochieng G. Mbeo (1st Respondent), Dr Caroline Odula (2nd Respondent), Dr Samson Miyoro (3rd Respondent), and the University of Nairobi (4th Respondent). On 14th April 2021, Civil Appeal No. 195 of 2021 was submitted by the University of Nairobi, the Appellant. The respondents include Ochieng G. Mbeo (suing on behalf of the estate of the late Petronila Okinyo Mbeo), Aga Khan University Hospital (2nd Respondent), Dr Caroline Odula (3rd Respondent), and Dr Samson Miyoro (4th Respondent). The Appellant in HCCA No. 190 of 2021 seeks to have the appeal allowed, the judgment of the Trial Magistrate against it overturned, and the suit in the lower court dismissed with costs. The Appellant also requests that it be awarded costs of the appeal to be paid by the 1st Respondent. In HCCA No. 195 of 2021, the Appellant seeks the following orders: that the appeal be allowed, the judgment of the lower court be set aside with costs, that the court substitute the lower court’s judgment with an appropriate one against the Respondents, and that the costs of the appeal be awarded. Appeal No. 195 of 2021 was filed a day after Appeal No. 190 of 2021. The two appeals challenge the Trial Magistrate’s findings in CMCC No. 919 of 2018. When I took over the matter, the parties did not agree that the appeals had been consolidated. I have reviewed the court proceedings and find that although the parties mentioned that the appeals should be consolidated, neither party filed a consent, nor is there a court order on the same. The last order I issued in the matter was that the court would deliver judgments in HCCA No. 190 of 2021 and 195 of 2021. However, after considering the issues in each appeal, I find that the appellants, who were defendants in CMCC No. 919 of 2018, have raised essentially the same issues in their appeals, which I will later specify. I also note that most of the handwritten proceedings are in HCCA 195 of 2021. When I issued the order in HCCA No. 195 of 2021, I had not yet reviewed the Memoranda of Appeal in each case. Having now done so, I believe that a consolidated judgment is appropriate since the issues in both appeals concern the findings of the Trial Magistrate relating to liability and quantum. Therefore, this judgment will be in HCCA 195 of 2021, where all parties involved in HCCA 190 of 2021 are also parties. No prejudice will be caused to any party, as I will consider the issues raised in a manner I believe each will understand as stemming from CMCC No. 919 of 2018.
The Appeal before this Court emanates from a civil suit filed by the 1 st Respondent vide his plaint dated 15 th February 2018 seeking the following reliefs: -
General Damages under the Law Reform Act and Fatal Accident Act;
Aggravated Damages;
Special Damages to be ascertained;
Interest on (1) and (2) above;
The costs of the suit;
Any other relief that the court deems just to grant.
The plaintiff’s case was that the late Petronilla Okinyo Mbeo, who was his deceased wife, died around 15th June 2017. He attributed her death to negligence by the Appellant as well as the 2nd, 3rd, and 4th Respondents in how they managed and/or treated her while she was under their care. Specifically, the doctors involved in the care of the deceased from 30th July 2016 to December 2016 failed to inform her and/or her relatives that they had discovered she was suffering from a terminal illness. As a result, the deceased’s life was put at risk because she did not receive timely treatment, including but not limited to the start of chemotherapy that could have saved her.
BACKGROUND/PLEADINGS
The 1st Respondent stated that the deceased underwent a hysterectomy carried out by the 3rd Respondent, Dr. Odula, who was employed by the appellant. This procedure took place on 1st August 2016 at the 2nd Respondent''''s health facility. The operation was intended to remove the deceased’s uterus for diagnostic reasons.
Following that procedure, follow-up management was conducted by the 4th Respondent, who was employed by the appellant. It was argued that the first surgical procedure performed by the 3rd Respondent was negligently carried out, resulting in perforation of the deceased’s intestines. This necessitated a series of subsequent surgeries performed by Prof. Saidi Hasssan (now deceased), an employee of the 2nd Respondent. The said doctor aimed to correct the deceased’s intestines. However, her condition did not improve.
Thus, the deceased was attended to by Dr. Gladwell Kiarie in January 2017. Upon examination, the doctor confirmed that the deceased had undergone a hysterectomy in August 2016. However, no post-operative follow-up was performed. During histological examination, the doctor identified an endometrial tumour in the deceased''''s body. This diagnosis concerning the deceased’s uterus was received by the 3rd Respondent on 8th October 2016.
The 1st Respondent stated that they were never informed either by the 3rd Respondent or the late Prof. Saidi Hassan that the deceased had an endometrial tumour requiring post-operative follow-up. This information was only revealed to them when the deceased was examined by Dr. Kairie while requesting the deceased’s histology report for August 2016 from the 2nd Respondent’s Surgical Department on 22nd February 2017.
It was his case that the management provided by Dr. Kiarie could not save the deceased’s life because it was initiated too late when her condition had already worsened. The deterioration of her health was attributable to the failure of the appellant, the 2nd, 3rd, and 4th Respondents to provide timely post-operative follow-up, which led to her death on 15th June 2017.
It was the 1st Respondent’s further case that a post-mortem conducted on 3rd July 2017 on the body of the deceased confirmed that the deceased died due to endometrial carcinoma. He accused the 3rd and 4th Respondents of negligently mismanaging the deceased, leading to her premature death. He also faulted the 2nd Respondent for negligently neglecting to observe due care of the deceased at its facility during admission on 30th July 2016. He averred that this was based on the fact that these parties owed a duty of care and an implied contractual obligation to the deceased.
The 1st Respondent outlined the details of negligence in paragraph 23 of the plaint. He explained that since the deceased was 61 years old at the time of her death, employed as a permanent and pensionable worker for the appellant, and earning a monthly salary of Kshs. 280,000/=. with nine years remaining until retirement, the deceased’s estate should be awarded compensation for her wrongful death.
The 3rd Respondent, Dr. Caroline Odula, filed her statement of defence dated 28th March 2018. She denied the contents of the plaint. In particular, she denied being negligent in treating and diagnosing the deceased. She also denied failing to report that the deceased was suffering from a terminal illness that endangered her life. She admitted that she carried out the surgery on the deceased on 1st August 2016 at the 2nd Respondent''''s facility, in the presence of Dr. Wanjohi, a colleague from the appellant’s institution, and anaesthetist Dr. Devi Mong’are.
The 3rd Respondent stated that she examined the deceased daily until the 6th post-operative day after the surgery, when the deceased was discharged. She stated that she advised the deceased to continue with wound dressing on alternate days at a facility of her choice.
The 3rd Respondent stated that her call week concluded on 8th August 2016 at 0800 hrs when she handed over the patient to her gynaecology colleagues. She went on her annual leave from 19th August 2016 to 9th September 2016.
She further stated that the deceased was a general patient at the University of Nairobi Health Services, and whenever readmitted for care under different specialities, she was neither on call nor informed. She denied receiving the results and/or diagnosis made on the deceased’s uterus on 8th October 2016 as alleged, stating that she was only informed of this in mid-February 2017 by Dr Doreen Asimba, the Deputy Chief Medical Officer of the appellant. That was when she was told that the uterus and ovary samples of the deceased revealed adenocarcinoma of the uterus. At that point, the deceased was under the care of radiotherapists and oncologists.
The 3rd Respondent denied any mismanagement of the deceased, lack of post-operative follow-up, or failure to institute such follow-up in a timely manner. Acknowledging her duty of care towards the deceased, she asserted that she had fulfilled this obligation by providing professional care of high standards and exercising all reasonable skills when attending to the deceased.
The 4th Respondent filed his statement of defence dated 18th November 2019. He denied the contents of the plaint. He averred that he was not the deceased’s primary doctor or surgeon who attended to her, as the deceased chose the 3rd Respondent as her primary obstetrician and gynaecologist. He stated that it was the 3rd Respondent who recommended a hysterectomy for the deceased, and affirmed that he was not part of the team that performed the surgery.
He stated that the deceased was never handed over to him and that he was only called upon by the then Chief Medical Officer – University of Nairobi, the late Dr. M.R.B. Otieno, who informed him of the deceased’s re-admission to the 2nd Respondent’s facility on 10th August 2016. It was then that he was asked to check on her progress, and he observed that her wound had sepsis, prompting him to commence treatment.
The 4th Respondent stated that following discussions with Dr. Otieno, it was advised that a General Surgeon should attend to the wound. It was at this point that Professor Hassan Saidi, a General Surgeon, assumed responsibility for the treatment of the wound sepsis. The 4th Respondent further stated that, at this stage, the mentioned Professor remained a consultant while the primary treatment was conducted by the 2nd Respondent’s surgical team.
The 4th Respondent denied that the treatment initiated on 10th August 2016 was related to the deceased’s intestines. Instead, he explained that it was intended to treat the developed wound sepsis at the surgical site. He also denied being aware of the histology report or the results of the hysterectomy procedure, as these had never been uploaded to the 2nd Respondent’s system or the deceased’s file. Consequently, he was unaware that the deceased had endometrial adenocarcinoma. He expressed the view that, as a standard practice, disclosure of the histology report—when it was positive or conclusive—should only be made to the patient’s primary doctor or next of kin.
He further stated that even if they had received the results from the hysterectomy, treating the wound sepsis was an emergency and a priority because it would have impacted any subsequent treatment for the deceased’s alleged condition. He recalled that the deceased was discharged in good condition on 5th September 2016 and denied ever having any contact with the deceased after the discharge.
He also stated that any allegations of negligence are unrelated to the cause of the deceased’s death. He argued that the progression of her condition was not caused by the issues raised in the plaint. In his view, the deceased died from fluid loss due to vomiting and diarrhoea, which resulted in hypovolemic shock. He asserted that he was never negligent in any way that could have caused injury to the deceased from the treatment he provided for the wound sepsis.
The 4th Respondent attributed negligence to the deceased, the 1st Respondent, and the 2nd Respondent for failing to exercise reasonable care and skill to prevent the death. He detailed the instances of negligence as outlined in the plaint and pleaded the defence of novus actus interveniens .
The 2nd Respondent filed its statement of defence dated 7th September 2018. It denied the contents of the plaint and put the plaintiff to strict proof. It averred that, although the post mortem was conducted on 3rd July 2018, and although the 3rd and 4th Respondents were highly qualified doctors, they were not its employees. Finally, it denied the particulars of negligence set out in the plaint.
The appellant filed its statement of defence dated 15th October 2019, denying the contents of the plaint and putting the 1st Respondent to strict proof. It was its case that although the 3rd and 4th Respondents were its employees, they were not negligent in any way. Therefore, the appellant was not vicariously liable. It also stated that the deceased was successfully operated on by the 1st Defendant, together with Dr Wanjohi, on 1st August 2016. Subsequently, samples of the removed tissues were sent to the 2nd Respondent’s laboratory for analysis and a pathology report.
It was stated that the deceased was discharged on 7th August 2016. The surgery performed was to manage menopausal bleeding. It denied that the deceased suffered any perforation of the intestines during the operation, as alleged, or that any corrective surgery was carried out. Instead, further post-operative procedures were performed on the deceased’s wound by the 2nd Respondent’s surgical team led by Dr. Hassan Saidi, due to the fact that the appellant did not have general surgeons.
The appellant stated that the 2nd Respondent provided in-patient services to the deceased unless consultation with its doctors was necessary. At the time of the deceased’s review by the 4th Respondent and the 2nd Respondent’s surgical team, the histology report was not available for their review and advice. As a result, they were unaware that the deceased had endometrial adenocarcinoma; this information was only known to the 2nd Respondent.
It stated that it could not reasonably be expected to obtain the said information since the deceased’s pathology results were neither posted on the 2nd Respondent’s internal system nor issued to the appellant, the 3rd, and 4th Respondents.
It was further alleged that the pathology results were only brought to their attention on 16th February 2017. That was when the acting Chief Medical Officer, Dr. Doreen Asimba, reviewed the deceased’s MRI pelvic report from the 2nd Respondent and noted that the deceased suffered from endometrial adenocarcinoma, upon which she immediately initiated curative and management procedures.
It was their argument that by the time the deceased was operated on 1st August 2016, she was already suffering from the said disease, which, despite being at an advanced and rapidly progressing stage, was being well managed by the appellant’s team together with the 4th Respondent; that the deceased was successfully treated and attended to at the appellant’s hospital on different dates until 15th June 2021.
The appellant argued that the doctors of the 2nd Respondent, to the exclusion of the appellant, failed and wilfully neglected to take adequate measures to provide life-saving medical care to the deceased. It stated that the deceased died due to hypovolemic shock caused by fluid loss from vomiting and diarrhoea over the course of a week. It was not foreseeable that the deceased would die as a result of the endometrial carcinoma, and the defence of novus actus interveniens was applicable.
It was averred that the alleged negligence was not related to the cause of death, as the development of the deceased’s condition was never caused by the matters alleged. It was stated that the deceased did not suffer any injuries from the medical treatment provided and that the appellant did everything medically possible to discharge its duty. Instead, it attributed any negligence to the deceased, the 1st and 2nd Respondents, and specified this in paragraph 5 of its Defence. It further sought indemnity from the other Defendants.
JUDGMENT OF THE TRIAL COURT
The matter was set down for hearing, and at its conclusion, the trial court entered judgment in favour of the 1 st Respondent as follows:
“Liability at 100% against the Defendants with the 4 th Respondent being vicariously liable for the 1 st and 2 nd Defendants who were its employees.
General Damages for Injury – Kshs. 11,720,000/=
Loss of life expectancy – Kshs. 100,000/=
Aggravated Damages against the 1 st and 3 rd Defendants – Kshs. 1,000,000/=
TOTAL – Kshs. 12,820,000/=
Costs of the Suit.”
THE APPEAL
Aggrieved by the above decision, the appellant in HCCA No.195 of 2021 filed the present appeal via its memorandum of appeal dated 14th April 2021. The appellant sought to set aside the judgment of the trial court with costs and to have it replaced with an order entering judgment against the Respondent with costs of the appeal. I have already indicated the relief sought by the Appellant in HCCA No. 190 of 2021. Appeal No. 195 of 2021 raises twelve (12) grounds of appeal, which are reproduced as follows: -
GROUNDS OF APPEAL IN HCCA NO. 190 OF 2021
That the Learned Trial Magistrate erred in law by making an improper analysis of the pleadings and evidence adduced in support of the Appellant’s and the Respondents’ averments, leading to an erroneous decision in the matter.
That the Learned Magistrate erred in law and in fact in failing to take into account material aspects of the evidence in support of the Appellant’s defence and eventually arriving at the finding that the Appellant was negligent in not informing the 1 st Respondent of the lab results.
That the Learned Trial Magistrate erred in finding against the weight of evidence that the Appellant was negligent.
That the Learned trial Magistrate erred in fact and in law in making an award for general damages amounting to Kshs.11,720,000/- which was manifestly excessive as to represent an entirely erroneous estimate.
That the Learned Trial Magistrate erred in law in awarding aggravated damages of KShs. 500,000/-.
That the Learned Trial Magistrate’s Judgment in the assessment of the available evidence in proof of the Appellant’s defense is erroneous and based on wrong principles.
That the Learned Trial Magistrate misdirected herself, misapprehended and misconstrued the legal principles in the case before her and by reason thereof came to a wrong conclusion
GROUNDS OF APPEAL IN HCCA NO. 195 OF 2021
The Learned Trial Magistrate erred in law and in fact in dismissing the Appellant’s defence notwithstanding the evidence on record in support of its case.
The Learned Trial Magistrate erred in law and in fact in failing to consider the issues raised by the Appellant in its Statement of Defence, cross-examination by its advocates and submissions filed.
The Learned Trial Magistrate erred in law and in fact in misunderstanding the evidence tendered by the parties at the trial thereby arriving at wrong findings.
The Learned Trial Magistrate erred in law and in fact in wholly dismissing the Appellant’s defence despite the same being supported by the evidence of the 4 th Respondent.
The Learned Trial Magistrate erred in law and in fact in finding that the Appellant was 100% liable to the 1 st Respondent despite finding that Prof. Saidi Hassan, an employee of the 2 nd Respondent liable for negligence.
The Learned Trial Magistrate erred in law and in fact in holding that the deceased’s death was as a result of cancer and/or that the same was by reason of lack of post-operation follow up in spite of contradictory evidence in the post-mortem report and certificate of death.
The Learned Trial Magistrate erred in law and in fact I failing to find that the deceased and the Plaintiff were in any even guilty of contributory negligence despite abundant evidence of the same.
The Learned Trial Magistrate erred in law and in fact in failing to find that the Appellant had afforded the deceased adequate medical care and was not liable.
The Learned Trial Magistrate erred in law and in fact in finding that the Appellant was vicariously liable for the actions of the 3 rd and 4 th Respondent s.
The Learned Trial Magistrate erred in law and in fact in awarding the 1 st Respondent General Damages of Kshs. 11,720,000/= without any proof and/or justification therefore which damages were excessive in the circumstances.
The Learned Trial Magistrate erred in law and in fact in failing to find that the 2 nd Respondent wholly liable for the deceased’s death.
The Learned Trial Magistrate erred in law and in fact in delivering a judgment that was contradictory.
The appeal was admitted for hearing and the parties took directions to canvass it by way of written submissions which are now on record.
SUBMISSIONS
APPELLANT’S SUBMISSIONS
The appellant filed written submissions along with a list of authorities dated 21st September 2023. Counsel submitted on behalf of the appellant that the judgment was contradictory and baseless, as it was found liable in negligence for causing the death of the deceased. They opined that it was actually the 2nd, 3rd, and 4th Respondents who mismanaged the deceased, leading to her death. Counsel also accused the deceased of negligence for not following her prescriptions as advised medically.
Looking at the evidence of Dr. Caroline Odula and Dr. Samson Miyoro, it was the appellant’s submission that they provided the deceased with adequate medical care. It argued that the evidence on record proved that its employees exercised reasonable care and skill throughout the management of the deceased, particularly on the 15th day of June 2017 when she passed on.
It pointed out that several reasons were presented to the court attributing the cause of the deceased’s death. As there were multiple speculative opinions about the cause of death, it argued that it could not be held responsible. This is because the death certificate stated that the deceased died from endometrial carcinoma due to cardiopulmonary arrest on 15th June 2017.
Learned Counsel further stated that the deceased died while waiting for emergency lifesaving medical intervention at the 2nd Respondent’s premises, which lacked a vacant High Dependency Unit bed to accommodate her. It submitted that the 2nd Respondent failed to implement timely emergency procedures upon receiving the deceased in a life-threatening condition on that fateful day. It urged this court to note that this was admitted by the 2nd Respondent and that it ultimately led to the deceased’s death.
The appellant then submitted that when the 4th Respondent took over management of the deceased, he did not have the password to access the 2nd Respondent''''s digital records. Accordingly, it was not brought to his attention that the deceased suffered a terminal illness. That the trial court properly found that the late Professor Hassan did not disclose such crucial information to the 4th Respondent.
Submitting on contributory negligence, the appellant attributed blame to the deceased, the 1st Respondent, and the 2nd Respondent for their alleged negligent contributions to the deceased''''s death. It explained that the 1st Respondent resided with the deceased as her husband and primary carer. Therefore, he owed her a duty of care to ensure she was properly nourished, adhered to her medication, and attended laboratory tests.
It blamed him for failing to take the deceased to the appellant’s facility for medical attention and for only waiting until she was severely deteriorated. The appellant submitted that she had been vomiting and suffering from diarrhoea for one week. It further blamed the 1st Respondent for not taking quicker action to have the deceased undergo a pap smear when she was due in January 2016, and submitted that he was not even aware of its necessity. Therefore, it proposed that negligence be attributed to the deceased and the 1st Respondent at 70% and to the 2nd Respondent at 30%.
The appellant argued that, given the circumstances, it was not responsible and therefore should not compensate the deceased’s estate. It objected to the 1st Respondent’s submission of the deceased’s net earnings, which was introduced outside the hearing, and pointed out that there was no basis for the award of Kshs. 11,720,000.00. The learned counsel contended that the award was excessively high and failed to consider the deceased’s medical history, which diminished her chances of survival until retirement age. It requested that the appeal be allowed.
1 ST RESPONDENT’S SUBMISSIONS
The 1 st Respondent did not file any written submissions
2 ND RESPONDENT ’S WRITTEN SUBMISSIONS
The 2nd Respondent filed written submissions and a list of authorities, both dated 22nd September 2023. It argued that it was undisputed that whenever a post-menopausal woman presented with spotting, it was indicative to any obstetrics and gynaecology practitioner that such spotting was most often due to a cancerous invasion. This understanding led the 3rd Respondent to conduct a biopsy on the deceased.
The 2nd Respondent outlined the chronology of the deceased’s treatment to demonstrate that Dr. Gakinya posted the results of the deceased’s biopsy, which were uploaded onto the electronic platform on 11th August 2016. It was stated that these could be accessed by both the 3rd and 4th Respondents, as they had clinical and admission privileges permitting them to do so. The submission was that the 2nd Respondent only tested the specimen, did so promptly, and submitted the results in a professional manner.
According to the 2nd Respondent, the appellant, the 3rd and 4th Respondents failed to follow up on the results. As such, they were negligent and callous, as their actions fell below the standard expected of a reasonably competent medical practitioner. It was submitted that a positive diagnosis of cancer ought to be disclosed to a patient by his or her primary caregiver and not by any other person or entity. Therefore, it was incumbent on the 3rd and 4th Respondents to follow up on the biopsy results; practitioners who had clinical and admission privileges at its facility.
The 2nd Respondent reaffirmed that the results were posted rapidly. The responsibility of accessing results therefore rested with the primary caregiver. It argued that since pathologists perform hundreds of tests daily, it would not be practical to inform each doctor and/or patient about the results. In its view, it was not the obligation of the 2nd Respondent to bring the deceased’s disputed histology report to the attention of the 4th Respondent. In any event, Professor Saidi Hassan only offered expertise in the management of wound sepsis, which she did adequately.
It highlighted the fact that the results were pending, as indicated in the discharge summary and during the patient’s second admission. In its view, this demonstrated that the 4th Respondent was aware. It is argued that the 3rd and 4th Respondents never requested physical copies of the results, yet they were aware of this requirement.
Regarding the entitlement to awards by the 1st Respondent, the 2nd Respondent contended that the damages awarded by the trial court were excessively high. Moreover, the deceased’s earnings were not sufficiently proved on a balance of probabilities. It argued that the deceased’s estate should be awarded Kshs. 1,646,400.00, calculated as follows: 280,000 × 12 × 1 × 1/3 (for taxes) × 1/3 (for dependents). Concerning pain and suffering, the 2nd Respondent submitted that it was not proven that the deceased experienced pain prior to her death, as indicated by the medical records of 15th June 2017. It agreed with the trial court’s findings regarding the loss of expectancy of life.
4 TH RESPONDENT ’S WRITTEN SUBMISSIONS
The 4th Respondent filed written submissions dated 3rd March 2024. The 4th Respondent submitted that the deceased was already ill when she visited the appellant’s facility. The 4th Respondent recommended a hysterectomy, which was performed by the 3rd Respondent. During the procedure, complications arose, requiring her admission to the 2nd Respondent. The 4th Respondent then summarised the evidence at trial, concluding that the 2nd Respondent was negligent in failing to provide the deceased’s report, either physically or in the digital system.
The 4th Respondent reaffirmed that it was not disputed the deceased was admitted and treated at the 2nd Respondent’s facility. A duty of care therefore arose. The Respondent argued that there was no connection between the cause of death and the consultation services provided by the 4th Respondent. However, the cause of death was attributed to the 2nd Respondent, where the deceased died. The 4th Respondent noted that the 2nd Respondent’s staff did not adequately manage her.
The 4th Respondent argued that the 3rd and 4th Respondents were not liable because they exercised the reasonable diligence and skill expected of them as professionals in managing the deceased. They maintained that there was no basis for awarding general damages against the 4th Responden
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