Court Awards Damages for negligence in Administering Contraception
AAA vs. Registered Trustee (Aga Khan University Hospital Nairobi)
High of Kenya at Nairobi
Civil Case No. 3 of 2013
H P G Waweru J
May 15, 2015
Reported by Kipkemoi Sang
Brief Facts
On the 4th day of July 2011 the Plaintiff consulted the Defendant ’s family planning clinic for an appropriate contraceptive method since she and her husband who already had two children did not want a third child. She was advised by the Defendant that the insertion of an implant known as implanon would be the most suitable and appropriate for her, and that the same, if implanted, would protect her from conception for a period of three years from the date of insertion. The Plaintiff took the advice and on the same date she was taken through the medical procedure of implanting the implanon into her left upper arm under local anaesthesia.
On the month of August 2012, the Plaintiff’s menses failed and a home pregnancy test came out positive. She visited the Defendant’s hospital on 10th August 2012 where a further pregnancy test confirmed that she was indeed pregnant. Other tests conducted by the Defendant’s medical staff at the hospital confirmed that no implanon had been implanted in her arm after all. The Plaintiff claim was therefore founded on medical negligence that resulted to unwanted pregnancy and subsequent delivery of the unplanned child.
Issues
- Whether the Defendant was vicariously liable for negligence of her medical staff in performance of their duties.
- Whether the Plaintiff was entitled to award of pain, suffering and loss of amenities, loss of consortium and costs related to care and upbringing of the child up to the age of 18 years.
Tort Law- Negligence-medical Negligence- Vicarious liability-whether the Defendant was vicariously liable for negligence of her medical staff in performance of their duties.
Tort Law-Damage-award of damages- special damages whether the Plaintiff was entitled to award of pain, suffering and loss of amenities, loss of consortium and costs related to care and upbringing of the child up to the age of 18 years
Held
- A claim for negligence for failed sterilization was that; the Defendant would only succeed, if the Defendant on evidence proofs that, at the time of the sterilization, conception appeared to have already taken place but could not be detected that early by the pre-sterilization test, then available.
- It was clear that; the implanon was never implanted into the Plaintiff’s arm or any other part of her body and as such could only have been because of the negligence of the Defendant’s medical staff in the performance of their duties, therefore the Defendant was vicariously liable for that negligence.
- Compensation for a failed sterilization or family planning procedure that results in birth of a healthy child paused a challenge to Courts in the earlier days. Then, the claimant would only be compensated for pain, suffering and loss of amenities and loss of consortium; and that the Court would only award damages for the upbringing of the child only if the child was born with congenital abnormalities. The Courts would decline on account of public policy to award child bearing expenses if the child was healthy. The principle of Public policy was that, the joy derived by parents in bringing up a child cancelled out the compensation that could otherwise be awarded.
- Courts have gradually moved away from public policy approach and began awarding compensation for the cost of bringing up an unexpected child up to the age of majority. Since the avoidance of a further pregnancy and birth was the object of the sterilization operation undergone by the Plaintiff, the compensatable loss suffered by the Plaintiff as a result of the negligence in performing that operation extended to any reasonably foreseeable financial loss directly caused by her pregnancy.
- There was no rule of public policy which prevented the Plaintiff from recovering in full the financial damage sustained by her as a result of the negligent failure of the defendant’s medical staff to perform the sterilization operation properly, regardless of whether the child was healthy or abnormal. The Plaintiff ought to be entitled to damages for loss of future earnings, maintenance of the child up to the age of majority, and future loss of amenity and pain and suffering, including the extra care that the child would require.
- The moral and theological considerations that, public policy considerations could be used to deny recovery to the parents of an unplanned healthy child of all the damages proximately caused by negligently performed operations, was analytically undistinguishable from the ordinary medical negligence action where a Plaintiff alleges that a physician has breached a duty of care owed to him with resulting injurious consequences. The purpose of the physician’s action was to prevent conception or birth; therefore, elementary justice required that he be held legally responsible for the consequences which in fact occurred.
- The elementary principle of compensatory damages sought to place injured Plaintiffs in the position they would have been had no wrong occurred. Incidental damages included such as; pre-natal and post-natal medical expenses, pain and suffering incurred by the child’s mother and loss of consortium to the extent that it can be proved.
- Since family planning was widely accepted in Kenya, and hospitals and doctors regularly offered it, they therefore owe their patients duty of care to perform those services to the professional standards expected of them. When they fall short, they must bear the consequences.
Obiter
Although public sentiments might recognize that to the vast majority of parents, the long term and enduring benefits of parenthood outweighed the economic cost of rearing a healthy child, it would seem myopic to declare currently that those benefits exceed the costs as a matter of law. Family-planning concept as an integral aspect of the modern marital relationship had since departed from the honoured command; to be ‘fruitful and multiply’ which had not only lost contemporary significance to a growing number of potential parents but was contrary to public policies embodied by law encouraging family planning.
Court awarded KShs. 500,000/00 for pain and loss of amenities and Kshs. 4,320,000 for the cost of care and upbringing of the child from birth to the age of 18 years at the rate of Kshs. 20, 000 per month.