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IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDIACTION DIVISION)
ACCRA - A.D 2018
KWAKU AGYIRE-TETTEY AND PAUL KWAKU SODOKEH - (Plaintiffs)
THE UNIVERSITY OF GHANA AND 2 OTHERS - (Defendants)
DATE: 19 TH DECEMBER, 2018
SUIT NO: GJ150/2016
JUDGES: JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:
DR. EMMANUEL MAURICE ANKRAH WITH NASISSATA HAMIDU AND NANA KOFI BEKOE FOR THE PLAINTIFFS
MS. GLORIA COFIE FOR THE DEFENDANTS
JUDGMENT
i. Introduction
[1] I start this judgment by quoting scripture. The Good Book the Bible provides in Psalm 127 verses 3-5 as follows:
“Children are a heritage from the Lord, offspring a reward from him. Like arrows in the hands of a warrior are children born in one’s youth. Blessed is the man whose quiver is full of them. They will not be put to shame when they contend with their opponents in Court. (Reference the New International version – NIV)”
[2] In their desire to have this biblical blessing of a child, the 1st Plaintiff and his late wife Juliet Sodokeh Agyire-Tettey contacted the 2nd Defendant University Hospital. According to Mr. Agyire-Tettey, his late wife underwent treatment for fertility issues at the hospital before she became pregnant. The circumstances of what happened after the delivery and the circumstances of the death of Juliet form the foundation of this suit.
[3] Negligence is therefore the centerpiece of this litigation. The work of the physicians and in particular those who treated the deceased and/or attended to her at the Ghana’s premier university hospital is called into question by the Plaintiffs who accuse them of not meeting the standard and the tenets of their calling as medical doctors and, in so doing, seriously breached the trust that they had in them to provide proper, necessary, and appropriate medical care to them as citizens of this Republic in accordance with the oath of their calling which provides that:
“I swear to fulfill, to the best of my ability and judgment, this covenant:
I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow. I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism. I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon's knife or the chemist's drug. I will not be ashamed to say "I know not," nor will I fail to call in my colleagues when the skills of another are needed for a patient's recovery. I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God. I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick. I will prevent disease whenever I can, for prevention is preferable to cure.
I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.
If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.”[1],
[4] The above Hippocratic Oath which is a modern version of the original ancient Greek version or a version by the World Health Organization and/or a shorter version is usually taken by every medical school graduate in many parts of the world. Without doubt medical doctors by their training and expertise are respected by their patients who usually have very great trust in them.
[5] In this judgment I shall base my decision not on an ancient oath or a modern version of it taken by the physicians the Plaintiff accuse of negligence, but on a fair, unbiased analysis of the evidence presented before me at this trial, weighing it all carefully, based on the principles of law and the relevant case law.
ii. The Action:
[6] On the 5th day of February 2016, the Plaintiff caused the Writ of Summons accompanied by a Statement of Claim to issue against the Defendants severally and jointly for the following relief:
i. A amount of Ten Million Ghana Cedis (GH¢10,000.000.00) for the loss of life, pain and suffering.
ii. An amount of Five Million Cedis (GH¢5,000.000.00) for the upkeep of the child
iii. Cost of Legal Services
[7] A Notice of Entry of Appearance was entered for the Defendants by Messrs Bentsi-Enchill, Letsa & Ankomah on February 12, 2016. A joint 35 paragraph Statement of Defence was filed on April 21, 201 by the Defendants’ Solicitors by which the Plaintiffs’ claim was vehemently denied by the Defendants who averred that all the necessary examination and steps were taken when the Deceased reported to the 2nd Defendant facility.
[8] Counsel for the Plaintiffs filed a 14 paragraph reply on November 7, 2016 to rebut the defence and answer to the claim put up by the Defendants in their statement of Defence. At the close of the pleadings, Counsel for the Plaintiffs formulated five main issues for the Court’s consideration. All the issues were adopted by the Court and same were set down. The Defendants formulated no additional issue. The issues set down were as follows:-
a) Whether or not the Caesarean Section and Myomectomy carried out on the deceased are major surgeries and uncommon.
b) Whether or not the Deceased was fit to be discharged by the 2nd Defendant on the 14th May 2015 after the surgeries.
c) Whether or not the 2nd Defendant conducted proper examination of the Deceased on the 19th May, 2015 and the 21st May, 2015 when she reported with complaints.
d) Whether or not the Defendants were negligent in their duty to the Deceased.
e) Whether or not the Plaintiffs are entitled to their claims.
f) Any other issues raised by the Pleadings.
[9] At the trial the 1st Plaintiff testified for himself and on behalf of the 2nd Plaintiff and called no other witness to close the Plaintiff’s case. The Defendants called the following Doctors Dr. Ernest Tei Maya, Dr. Timothy Kobla Senunyeme, Dr. Richard Sylvester Dey, Dr. Richard Asamoah and Dr. Mark Eric Frempong as witnesses.
iii. The Case of the Plaintiffs:
[10] The case of the Plaintiff as per the adopted Witness Statement filed was not different from the statement of claim. The Court notes that at trial the 1st Plaintiff testified as per the witness statement filed on July 3, 2017 and which was adopted by the Court that is that he and his late wife, Juliet Sodokeh Agyire-Tetteh underwent treatment for fertility issues at the University of Ghana Hospital before she got pregnant in September 2014. According to Mr. Agyire-Tettey during the early weeks of pregnancy his deceased wife was attended to by the same doctor who treated her for infertility until she was issued with a Maternal Health Records Booklet on the 5th of May 2015. A copy of the Maternal Records booklet was tendered as Exhibit A.
[11] According to Mr. Agyire-Tettey during the regular ante-natal check-ups, his wife was told she will undergo a Caesarean operation during delivery because she had a fibroid and an Elective Caesarean Section procedure was scheduled between the 7th to the 14th May 2015 as indicated in Exhibit. According to the 1st Plaintiff his late wife was assured that “the fibroid will be taken out during her delivery hence the need for the Caesarean Section delivery”. Mr. Agyire-Tettey further told the Court that “my wife with her knowledge of customer service in the medical field from her previous job as a Customer Service Lecturer for Doctors and Nurses enquired from both consultants if there were any risks associated with the removal of fibroid during Caesarean delivery and was told it was a normal and regular practice without any risks”.
[12] The further case of the Plaintiffs is that the consultant who was in charge of the deceased travelled to Israel before her delivery date and so she was assigned to Dr. Maya to take charge of her till delivery. Mr. Agyire-Tettey further testified “we had at least three ante-natal sessions with Dr. Maya before her delivery date” as documented in Exhibit A.
[13] The further evidence of the 1st Plaintiff was that “on the last session, we were presented with dates we could choose from for my wife’s surgical procedure since Dr. Maya had to travel outside Accra for a World Health Organization program. Dr. Maya also told us I could be present in the theatre on the day of the surgical procedure was going to be performed. We were advised to pay for blood in case it would be needed so that it could be reserved and we did that”.
[14] Mr. Agyire-Tettey further testified that he and the deceased wife attended at the hospital on the 10th of May 2015 at around 3:00pm and she was admitted and prepared for the surgery which was scheduled for May 11, 2015. The 1st Plaintiff testified to the challenges he faced in obtaining the blood which had been requested by the anesthetist. According to him after running around between the theatre and the laboratory when he eventually got to the theatre “I was told my wife had delivered a baby boy and he had been sent to the maternity ward so I could go and see him, which I did. I was told the blood was not used after the surgery was performed”. Mr. Agyire-Tettey further said “my wife and son were kept at the hospital for two days after the surgery before she was discharged on the 14th of May 2015 in the morning”. He also said his wife was given a prescription for medication to boost her blood production which she found to cause her a lot of nausea.
[15] It is also the case of the Plaintiffs that the deceased regularly complained of dizziness, tiredness and so on and therefore they went back to the hospital on 19th of May 2015 to see the doctor in the morning. He said upon physical examination the doctor prescribed medication for his wife. Let us further hear from Mr. Agyire-Tettey again:
“I am advised and verily believe same to be true that if the doctor had examined her well he would have admitted her and given her blood. My wife complained of pains in her lower abdomen and she coughed anytime she lay down. I am advised and verily believe same to be true that the doctor ought to have examined her further to know the cause of the pains in the lower abdomen and the cough which was precipitated by the accumulation of blood in the abdomen”.
[16] Mr. Agyire-Tettey further testified that on Wednesday, 20th May 2015, they went back to the hospital in the evening to see the doctor because his wife kept complaining of severe abdominal pains. According to him the doctor said she needed two pints of blood for transfusion which “I quickly arranged for it to be given to her that night”. I revert to the 1st Plaintiff’s testimony as to what happened the next day:
“I arrived at the hospital the next morning around 5:00am to check on her. She gave me a smile and said she will be well. I smiled back even though I saw the pain on her face. I left her around 8:30am but I was called back after about 15 minutes that my wife needed additional blood. Upon my return to the hospital, the nurse in-charge told me that my wife needed four more pints of blood. The University of Ghana Hospital did not have the specification required so I quickly arranged for it to be delivered from Achimota hospital. I am advised and verily believe same to be true that if proper exanimation had been done and proper care had been taken, the total amount of blood that my wife needed would have been estimated on the 20th of May, 2015”.
[17] Mr. Agyire-Tettey further testified that his late wife was transfused with “two pints of packed cells blood together with some intravenous fluids between 10:00am and 2:00 P.M.” and after that, oxygen was fixed on her since she had difficulties in breathing. According to him at about 5:00 P.M. his wife was told go for a scan on her lower abdomen”. He further testified that he took his wife in a wheel chair because she couldn’t walk but when they got there they were told that the facility had closed for the day.
[18] He said when they returned to the ward, his wife was taken to a different room “with more hospital staff around her and more gadgets fixed on her and I was told I could spend the night with her”. He also said that by 8:00pm his wife was moved back to the theatre and he was told if the situation persisted they would refer her to another hospital. According to Mr. Agyire-Tettey at about 11:30pm, an ambulance was called to take the deceased to the Korle-Bu Hospital. Again the 1st Plaintiff told the Court that “I am advised and verily believe same to be true that if the decision to refer her was taken in the afternoon, my wife would have survived”.
[19] Mr. Agyire-Tettey further said on their way to the Korle Bu Teaching Hospital, “the ambulance stopped at Okponglo Junction Traffic light and when I enquired why they stopped I was told her folder had been left behind and that I should go and get it from the hospital and meet with them at Korle-Bu”. He said when he arrived at Korle-Bu a doctor took him to where his wife was receiving treatment and he observed from outside that to resuscitate her they were using electrical shocks and also an incision had been made in her chest.
[20] The 1st Plaintiff says this went on till about 1:45 am when consultant at the Cardio Unit told him that that they had done their best but were unable to save her. His wife had passed on. A postmortem was conducted and a copy of the report which speaks to the cause of death was tendered at trial as “Exhibit C”.
[21] Mr. Agyire-Tettey further testified that “I am advised and sincerely believe that we were ill-advised that there were no risks associated with a Caesarean Section and Myomectomy performed together and that, the scan which was not performed, would have revealed that the cause of death as confirmed by Exhibit C that she indeed bled into her womb”.
[22] He concluded his testimony by stating that he has since been the primary care-giver of the baby with its attendant challenges of caring for a motherless child. He also said, a lot of resources and time have since been invested in his son’s care and upkeep whilst he has endured a lonely and difficult period of recuperation at his own expense without an iota of support and concern from the hospital. Based on all of the above the Plaintiffs say they are entitled to their claims endorsed on the writ of summons.
iv. The Case of the Defendants:
Testimony of Dr. Timothy Kobla Senunyeme
[23] As earlier stated the Defendants evidence was proffered by many of the Physicians who attended to the deceased at the University of Ghana Hospital. The first to testify was Dr. Timothy Kobla Senunyeme. He told the Court he completed the University of Ghana Medical School in February 2002. He said he has worked with the University of Ghana Hospital for almost thirteen years. First as a general practitioner and currently as a specialist Obstetrician/Gynecologist. He told the Court that he knew the late wife of the 1st Plaintiff and the Plaintiffs as well. He testified that the deceased was his patient who attended the Hospital’s fertility clinic and later the antenatal clinic sometime in 2012 until she passed on in May 2015.
[24] Doctor Senunyeme testified that he had a cordial relationship with the Deceased such that she and the 1st Plaintiff had “uninhibited access” to him as they had his personal contact number and so they could reach him at any time. He also said the Deceased was “both my ‘WhatsApp’ and ‘Facebook’ friend until her death. He said he still a friend of the 1st Plaintiff on both WhatsApp and Facebook. According to Dr. Senunyeme during the fertility treatment Obstetrics/Gynecology team identified that the deceased had multiple uterine fibroids and male factor infertility. He said after about three years of treatment the Deceased became pregnant. He said the fibroid was not removed before the pregnancy because “there was no need for it to be removed clinically”.
[25] Dr. Senunyeme further testified that the early pregnancy condition was explained to the Deceased and all the necessary medications and treatment were ordered. According to Dr. Senunyeme the Deceased was made to start antenatal clinic and that all the antenatal periods and attendances were largely uneventful “aside the early period of morning sickness which were largely taken care of, with a combination of reassurance and some few tablets of antiemetic (medication to prevent vomiting in early pregnancy) every now and then”. According to Dr. Senunyeme the Deceased received the best of care.
[26] Dr. Senunyeme further testified that “I had a discussion with the Deceased, together with the 1st Plaintiff concerning their birthing plan. This is done for all patients. All the available delivering options including normal delivery and caesarean section were discussed. The possible complications and outcome with respect to the caesarean section and the removal of the fibroids (caesarean myomectomy) were explained to the deceased and the 1st Plaintiff. They promised to think about it and to revert to me”. According Dr. Senunyeme the deceased and the 1st Plaintiff reverted to him and informed him that they had opted for elective caesarean section plus myomectomy. Dr. Senunyeme told the Court that a “Caesarean section plus a myomectomy is a surgery which is permissible by the medical profession and therefore not uncommon”.
[27] Further, Dr. Senunyeme testified that the decision by the Deceased to have the Caesarean myomectomy was the right decision because “she was an elderly woman (more than 35 years) who had never given birth, the presence of the multiple uterine fibroids and the fact that she had undergone fertility treatment for sometime”. Dr. Senunyeme also said he agreed to do the surgery because he has the competency to perform the surgery and has performed a number of such procedures successfully at the hospital.
[28] According to Dr. Senunyeme, he had to travel to Israel on an urgent national training assignment for six months and therefore he discussed with the Deceased and the 1st Plaintiff the option of transferring the deceased to his senior colleague, Dr. Ernest Maya and they agreed. He said he then personally introduced them to Dr. Maya with the necessary notes and plans sometime in March 2015 before he left for Israel.
Dr. Ernest Tei Maya
[29] The Defendants next called Dr. Ernest Tei Maya as a witness. As others, Dr. Maya’s testimony comprised of his evidence contained in the witness statement filed on February 23, 2017 which was adopted at trial and the other documentary evidence tendered. Dr. Maya told the Court that he completed the University of Ghana Medical School in March, 1996. He subsequently did his one year housemanship at the Korle-Bu Teaching Hospital under the tutelage of the consultants at the said hospital. Copies of his educational qualifications were tendered together as Exhibit 1. Dr. Maya further said, he is a “Fellow of the West African College of Surgeons and a Fellow of the Ghana College of Surgeons”. He also testified that “in total I have about twenty (20) years working experience as a medical doctor out of which nine (9) years is at the level of a Specialist. Copies of his Admittance Certificate from the Council of the West African College of Surgeons as Exhibit 2.
[30] The further evidence of Dr. Maya in regards to his qualification was that in 2005, he did three months internship at the Obstetrics and Gynaecology department of the Washington University/Barnes-Jewish Hospital in St. Louis, Missouri, USA and on 31st December 2009 he was admitted to the degree of master of Public Health by the University of Ghana. A copy of his certificate was again tendered as Exhibit 3. He also testified that currently he is a part time Obstetrician/Gynaecology Lecturer at the University of Ghana Hospital (“Hospital”) School of Public Health and the Department of Obstetrics and Gynaecology, School of Medicine and Dentistry. He said he has authored a number of medical articles and has been on the staff of the 1st Defendant’s Hospital from August 2013 until now.
[31] Speaking to the substantive matter, Dr. Maya said he knew Mrs. Juliet A. Sodoke Agyire-Tettey, the deceased and knows the husband, the 1st Plaintiff but does not know the 2nd Plaintiff. He said the Deceased and the 1st Plaintiff were introduced to him by his colleague Dr. Timothy Senunyeme sometime in March 2015. According to him, at the time the Deceased was about seven (7) months pregnant and had already been detected of having fibroids. He also said at the time of the referral the Deceased had already decided to have an elective caesarean section and also to have a myomectomy during the caesarean section to have the fibroids removed. According to Dr. Maya “myomectomy is a surgery to remove fibroids nodules from the uterus and then repair same” that is stitch together the uterus. He told the Court that “I have performed several elective and emergency caesarean myomectomies throughout my training and after my specialization and therefore I agreed to conduct the surgery”.
[32] Let us further hear Dr. Maya in his own words: “The antenatal period from the time I took over was virtually uneventful. The Deceased normally came to consult me at the Hospital with the 1st Plaintiff when the Deceased was due for the caesarean myomectomy, she was sent to the anesthetists for pre-operative review as is done for all elective surgeries. She was cleared by the anesthetists for surgery and was asked to provide two units of blood for the surgery. After the clearance from the anesthetist, the Deceased and the 1st Plaintiff were given the option to select the day they prefer for the surgery. They chose 11th May 2015 and the Deceased was asked to come on admission on 10th May 2015. The allegation that I informed the Deceased and the 1st Plaintiff that I will be travelling outside Accra prior to 10th May 2015 is not true. It was during the consultation on 19th May 2015 that I informed the Deceased and the 1st Plaintiff that I will be out of Accra to work on a World Health Organisation research project. I asked her to give her urine culture tests result to Dr. Asamoah who is part of the team of doctors at the Maternity ward. As usual I asked the Deceased to call me if she has any concerns. The Deceased sent me a text message on 10th May 2015, in the evening informing me that she had come on admission. I responded by indicating that I would see her the following morning”.
[33] Dr. Maya’s further evidence was to the effect that on the morning of May 11, 2015 the deceased was prepared for the surgery after all the necessary steps had been taken including follow ups to the laboratory. He said “the indication for the surgery was Elderly Nullipara with Uterine Fibroids treated for infertility. Elderly Nullipara is the term used for a female who is more than thirty (35) years and has not had a baby before. Elective caesarean section plus a myomectomy is a surgery which is permissible by the medical profession and not uncommon. The surgery was simple without requiring my extensive dissection and I performed same successfully without any complications”.
[34] He also said even though “there were multiple smaller uterine fibroids it was only two large but superficial (sub-serosal) (the term sub-serosal refers to fibroids close to the outer surface of the womb) uterine fibroids situated around the fundus (the top part of the uterus) that were removed”.
According to Dr. Maya shortly after the surgery he met the 1st Plaintiff around the theatre and explained to him that the Deceased might not need the transfusion and that rather they will observe her post-operative progress and give the blood should the need arise.
[35] Dr. Maya told the Court that the Deceased was transferred to the ward fully conscious and all the necessary precautions were taken. She was closely monitored and also put on continuous monitoring with the available cardiac monitor on the ward. He said the Deceased was also treated with antibiotics during and after the surgery. This according to him is standard for all patients undergoing surgeries.
[36] Dr. Maya further testified that on the 14th May 2015, which is the third post-operative day, the Deceased was reviewed by the ward doctors as was done normally and she was considered to be medically fit to be discharged. According to him there was no reason why she had to be kept on admission. He said he personally also reviewed the Deceased the same day and also found her to be medically fit to be discharged and was asked to come back after one week for possible removal of the skin stitches. He said he as usual asked her to call him anytime if need be.
[37] Reacting to the Plaintiff’s allegation that the deceased should not have been discharged at the time she was discharged, Dr. Maya said “discharging patients who are deemed medically fit on post-operative day three (both obstetric and gynaecological major case) is not peculiar to the maternity ward of the Hospital. Throughout my postgraduate training and after, and in all the facilities I have worked, patients are discharged on post-operative day three if they are deemed medically fit”.
[38] The further evidence of Dr. Maya is that sometime in the morning of 19th May 2015, the Deceased called him to inform him that she had a cough that was worsened on lying down. He said “I asked the Deceased to come to the Hospital. The Deceased and the 1st Plaintiff came to the Hospital on the said day to see me. The Deceased walked into the consulting room unaided. The Deceased also complained about occasional sharp pain in the right loin and poor appetite when she was questioned about any other complaints. I examined the Deceased on a flat couch and she did not cough throughout the examination. The only other finding apart from the mild pallor (which was not any different from what it was before the discharge) was a mild right renal angle tenderness on deep palpation (when examined or pressed with the palms.) The term pallor means how white or pink the inside of the lower eyelid looks like”.
[39] The witness further said “the Deceased’s chest was clinically clear and an impression of possible urinary tract infection was made. After a thorough examination of the Deceased, I formed the opinion that the Deceased’s condition did not warrant admission so I decided to manage her as an outpatient”. He also said “I requested for urine routine examination and culture and sensitivity test for her and prescribed oral cefuroxime (Zinnat tablets) for her to start as soon as the urine samples are taken that day while awaiting the urine culture results. She was also prescribed oral Astymin for the poor appetite”.
[40] Dr. Maya further said “the urine culture normally takes a minimum of two (2) days to be ready. The Deceased was asked to come back with the results in two (2) days. As usual I asked her to call me in case of any problem. Prior to 19th May 2015, I did not get any message or call from the Deceased complaining of any dizziness or tiredness. She did not also complain of same when I met her that day. Based on the thorough examination conducted on Deceased on 19th May 2015, there was no reason why she had to be given blood transfusion on that day as being alleged by the 1st Plaintiff. There was also no evidence or symptom on the said date which showed that the Deceased was bleeding in her abdomen, there was also no need to take a scan”.
[41] According to Dr. Maya on “20th May 2015 at about 6:46pm I received a text message from the Deceased indicating that she was having palpitations of the heart, coughing and sweating and was at the emergency unit of the Hospital. I was out of Accra on the said date but responded promptly indicating that I would get a doctor to check on her. A print out copy of the said text message was tendered as “Exhibit 5”. Dr. Maya said he subsequently called Dr. Frempong (Principal Medical Officer) who is one of the doctors at the maternity ward to check on the Deceased at the emergency. According to him Dr. Frempong did check on the deceased and gave the feedback that the emergency team that attended to the Deceased made a diagnosis of symptomatic Anemia (Hb. Still 7.4 g/d), indicating that “there had been no active bleeding when I examined her on the 19th May 2015 as this was the HB she was discharged with on 14th May 2015) secondary to caesarean section and myomectomy and admitted her for blood transfusion, monitoring and further management”.
[42] The Defendants’ witness said that on 21st May 2015 in the morning, he called Dr. Asamoah for an update on the Deceased and asked him to extend his greetings to her and to inform her that he will be coming to Accra that evening. He also said, he asked Dr. Asamoah to tell the Deceased that he will come at the Hospital to check on her as soon as he arrived. According to him “when I entered the ward, the Deceased was sitting in a chair and complained of breathlessness. She was helped on to her bed and examined. The significant findings were a weak pulse rate of 120beats/min, the blood pressure was un-recordable low, air entry into the chest was good bilaterally and she had a few fine basal crepitations. Crepitations are abnormal sounds heard in the chest upon examination”.
[43] Dr. Maya further said “in addition the Deceased’s liver, spleen and kidneys were not palpable. The Oxygen saturation was 95-97% on room air. A urethral catheter was passed and instructions were given to start intranasal oxygen 4L/min. The Deceased complained about the sensation to defecate and she was served with a bed pan upon which I left the room momentarily. I also realized that the Deceased will need intensive care (ICU) management after stabilization. Therefore I called the Consultant in charge of the Ridge Hospital’s ICU, Dr. Evans Atito-Narth to discuss the Deceased’s condition with him and for a possible transfer to the Ridge Hospital ICU”.
[44] Dr. Maya also spoke to the challenges faced in getting an ICU bed for the deceased at both the Ridge and the 37 Military Hospitals which did not materialize until eventually a place was found at Korle-Bu. He said “the Deceased was finally transferred to the ICU of the National Cardiothoracic Centre at Korle-Bu with a team made up of the Physician Specialist, Dr. Asamoah, an Anesthetist and a Senior House Officer. I was later informed by Dr. Asamoah that the Deceased unfortunately died despite the attempts by the doctors at Korle-Bu to save her. Following an official visit by representatives from the Hospital Management Team to the 1st Plaintiff, I also called him to express my condolences”.
[45] Dr. Maya also testified that he subsequently found out that a post mortem report was issued and the cause of death per the report is “Disseminated Intravascular Coagulation, due to cumulative effects of suppurative endometritis (womb infection) and wide spread trophoblastic embolization”.
Dr. Christian Kofi Amenuveve
[46] Another witness called by the Defendants was Dr. Christian Kofi Amenuveve. The pith and substance of his evidence was that he had his undergraduate Medical education at the University of Ghana Medical School, Legon and qualified as a Medical Doctor in April 1990. A copy of his certificate from the University of Ghana Medical School was tendered as “Exhibit 11”. He said he has worked at the Korle-Bu as a Consultant Surgeon for five (5) years. He said he was appointed as the Director of University Health Services (Health Services) at the University of Ghana in April 2011 and he still holds that position. He also said the 1st Defendant Hospital is “University of Ghana Hospital (Hospital) “and the hospital therefore is not separate entity from the 1st Defendant”.
[47] He also said “I have established an outreach services on whose platform I conducted thousands of multi-disciplinary surgeries in underserved communities in the Northern Volta, Southern Volta, Ga-Rural, Afram-Plains, Sundema Bulsa district of the Upper East region, Western Regions among others where I was also instrumental in training of other medical officers and the needed auxiliary staff in the district, and teaching them on life-saving interventions and appropriate surgical techniques”.
[48] Dr. Amenuveve testified that he knew the Deceased because she was an employee of the 1st Defendant. He also testified that he knows that 1st Plaintiff as the husband of the Deceased and met him when the officials of the 1st Defendant visited him at his residence after the death of the Deceased. He said he does not know the 2nd Plaintiff.
[49] According to Dr. Amenuveve On 21st May 2015 at about 22:30 GMT, he was informed by Dr. Richard Dey that all efforts to transfer the Deceased to an Intensive Care Unit (ICU), upon high index of suspicion of possible pulmonary embolism (blockage of blood vessels to the lungs), at Ridge Hospital and 37 Military Hospital had proved futile’. He said “I immediately called Director of the National Cardiothoracic Centre at Korle-Bu Dr. Lawrence Sereboe and he agreed to accept the Deceased. He informed me that he was moving to the ICU Unit immediately to prepare to receive the Deceased. I was subsequently informed on 22nd May, 2015 at about 04:30 GMT by Dr. Richard Dey that the Deceased passed away irrespective of the attempts by the doctors at Korle-Bu to save her”.
[50] Dr. Amenuveve concluded his testimony by stating that “based on the hospital records no maternal deaths have been recorded in the hospital for more than ten years and it is due to the strict adherence to the effective management protocols, skills and knowledge sharing”. He also said the Hospital staff provide a high standard of care for all patients and as a result all patients are thoroughly examined before diagnosis is made. Based on all of the above he testified that the deceased death cannot be attributed to the negligence of the Hospital’s officials.
[51] As stated above, other physicians such as Dr. Richard Sylvester Dey, Dr. Richard Asamoah, Dr. Mark Frempong testified for the Defence. Their individual evidence relates to their individuals roles in treating the deceased and they collectively deny the allegation that they fell short of the standard required as physicians when they treated the deceased. In effect they deny the charge of negligence. In my analysis, where necessary I shall make reference to their testimonies. Consequently, in a nutshell the above is the evidence heard by the Court.
The Court’s Opinion and Analysis:
[52] The general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.
“Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non – existence of which is essential to the claim or defence he is asserting”
[53] In the context of the instant suit the Plaintiffs carry the burden of proof and of persuasion which is to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act 1975 (NRCD 325).
[54] This general position on the burden of proof and of persuasion has had judicial approval by the Supreme Court in the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:
“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.
See also the case of RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS V. KOTEY & OTHERS [2003-2004] SCGLR 420.
[55] I now proceed to examine the evidence adduced in support of the Plaintiffs’ case and will relate same in the context of the standard of proof I have already set out above. As stated above, stripped of the nature of the issues raised including whether or not caesarean section plus myomectomy is a major surgery or otherwise and the argumentation deployed in the instant suit, the basic matter for determination in this case is purely in the realm of negligence. Based on the evidence adduced by the Plaintiffs I understand their allegation of negligence in three parts. First and foremost, the 1st Plaintiff contends that he and the deceased were assured that there was no risk to the procedure to be adopted. Secondly, he accuses the Defendants through the doctors and staff of negligence in the way they carried out their duties before the surgery and the third strand of the negligence accusation is anchored on what happened post the surgery, the discharge of the deceased, the re-admission and ultimately her untimely death.
[56] So, how did the Plaintiffs discharge the onus the law has placed on them? I note that Counsel for the Plaintiffs in dealing with the issues raised and in particular the issue whether or not a Caesarean Section and Myomectomy carried out on the deceased are major surgeries and uncommon, submitted after making reference to the 1st Plaintiff’s evidence by which he stated under cross-examination that complications were not raised in their discussions with the doctors. The Plaintiff stated that “we were told that it was something they did regularly and we would not have any problem with it”
[57] Anchoring his arguments on the above statement, learned Counsel for the Plaintiffs referred to portions of the cross-examination of Dr. Senunyeme when he said among others that “classifying a surgical procedure as a major or minor is relative. This is what happened in that exchange on October 26, 2017 and November 2, 2017:
“Q: So you will agree with me that a CS is a major surgery
A: Yes
Q: Can you tell us what major risk is associated with this CS Surgery?
A: I will classify them in two major parts for purposes of simplicity. One is an anesthetic risk. 2, Risk which is associated with the surgery itself that is surgical risk. For the Anesthetic risk specifically includes High spinal which if not detected can lead to death. If it is a general anesthesia you can have problems with intubating the patient. It could be a very bad response to the anesthetic drug. For the surgical risk you can have bleeding. This bleeding can be bleeding to the mother and the baby to be born. Again if it is not detected can lead to death. Then you can have infection, this infection can be infection inside the womb itself or the general infection of the patient’s blood system. Another complication which is not common is deep vein thrombosis. I must emphasize that deep vein thrombosis can be a complication of the pregnancy itself not necessarily the CS. And if this is not detected early can lead clot forming in the lungs and again can lead to death.
Q: You mentioned at the last adjourned date that bleeding is a complication of CS is that right
A: Yes
Q: You had also prepared the patient also for myomectomy at the same time
A: I had not prepared the patient for myomectomy, the patient had consented for myomectomy with me but the process for preparing the patient for myomectomy was done by my senior colleague.
Q: But you made this court believe the patient signed the informed consent with you is that right
A: I did not say the patient signed a consent form with me because at the time of the surgery I was not in town and so she could not have signed the consent with me. The patient consented to the procedure.
Q: Did you discuss the complication of myomectomy with the deceased?
A: Yes I did
Q: Tell this court the complications of myomectomy
A: There may be bleeding and that is the major complication, there may be an infection, there may be deep vein thrombosis this can lead to pulmonary embolism again there maybe anesthetic complication that maybe associated with the surgery and this would depend on whether they are using a regional anesthesia or general anesthesia, maybe high spinal or a reaction to the anesthetic drug. And all of these if not detected can lead to death.
Q: You will agree with me that myomectomy in itself is a major surgery
A: Classifying a surgical procedure as being major or not is relative. Again I am speaking as a professional depending on the skill of the surgeon the number of cases he or she has done before and the preoperative assessment as well as the findings during operation. Unless one has the benefit of all these it is difficult for one to classify a particular procedure in this case myomectomy as a major surgery.
Q: You are not being truthful to this court I put it to you
A: AI disagree with counsel
Q: All surgical cases are classified as major or minor before surgery
A: I can’t see the difference in what am saying and what counsel is saying. Counsel is classifying obstetrics and Gymea surgeries as major or minor. And I am trying to point him to the basis of those clarifications”.
[58] Based on the above exchange, learned Counsel has submitted at page 10 of his written submission to the Court that:
“My Lord, it is the case of the Plaintiffs that due to the fact that both CS and Myomectomy are major surgeries with bleeding being the major complication associated with each, it is uncommon for both to be done at the same time unless the utmost precaution is taken. It is our submission also that it is uncommon for both SC and Myomectomy to be done at the same time unless there is clinical indication for it or the fibroid is a threat to the life of the mother at the time of delivery” [Emphasis Mine].
[59] After referring to other sections of his cross-examination of the witnesses, Counsel again states at page 11 of his written legal submission that;
“My Lord, from the foregoing it is our submission that the admissions by the Defendants that Caesarean Section and Myomectomy are major surgeries which shouldn’t be done routinely is sufficient proof of the Plaintiffs’ claims and hence we humbly submit that the Plaintiff were able to prove that Caesarean Section and Myomectomy are major surgeries that are uncommon and ought to be done at the same time only when there is a clinical indication for it, it is life threatening to the patient and all the necessary precautions have been taken” . Counsel further submitted that because there is no indication that the fibroid was threatening the life of the deceased at the time of the surgery it should not have been done
[60] In discussing the second issue as to whether or not the deceased was fit to be discharged by the 2nd Defendant on the 14th of May, 2015 after the surgery, I note that Counsel’s approach is similar to how he dealt with the above issue. He referred to portions of the proceedings and submitted at page 13 of his written submission that:
“In further support of the claim that the deceased was medically fit to be discharged, DW2 stated that the deceased was reviewed on the 2nd day post-operative and although her haemoglobin (HB) levels was found to be 7.4g/dl, they did not feel the need to transfuse her. They rather gave her an oral iron supplement with the explanation that for the deceased’s condition, blood transfusion was not required. My Lord, it is our considered opinion that for a patient who had undergone such major surgeries (according to the Defendants’ own admissions) whose major complications are bleeding, two days after surgery was not enough for her to be declared medically fit especially when her HB levels had dropped from 11.3g/dl before the surgery (per Exhibit A) to 7.4g/dl”
[61] Counsel further submitted that the Defendants were not able to explain why someone who was declared medically fit to be discharged with HB of 7.4G/dl would present herself to the hospital with complaints of dizziness, tiredness, nausea, coughing and abdominal pains which eventually led to her being diagnosed with heart failure secondary to severe anaemia on the 20th and 21st of May, 2015. Counsel further referred to the testimonies of DW5 (Dr. Asamoah) and DW6 (Dr. Frempong) to say that the deceased should not have been discharged just two clear days after the surgery. Based on all of the above analysis and others contained in Counsel’s submission the Plaintiffs claim that they have proved and discharged the onus on them and proved the negligence against the Defendants because:
i. The Hospital knew the possible complications of such an extensive and uncommon surgery yet failed to inform the couple
ii. That the hospital failed to take the necessary precautions in such extensive surgeries by sending the deceased home just 3 days after such operation.
iii. That the hospital failed to do proper physical and laboratory examination on the deceased on the 19th day of May, 2015 when she reported back to the hospital
iv. That if the hospital had been diligent, the untimely death of the deceased would have been averted.
[62] I have reproduced the most salient parts of Counsel’s submission and in response wish to state with greatest deference and respect to Learned Counsel that much of what is stated in the submission are not evidence heard but opinion of Counsel who I understand is also a trained Medical Doctor. For instance, it is stated above that the 1st Plaintiff and the deceased were not advised of the complications of the surgery, clearly that is not the evidence heard because the Defendants refuted the 1st Plaintiff’s evidence that they were not advised through Dr. Senunyeme. By law the Plaintiffs had the onus to discharge that burden with cogent evidence and not just repeat their averment in the witness box. Also, the deceased’s general hospital record was for instance not tendered at trial and therefore the Court could not make its own assessment of what happened prior to the surgery and after.
[63] In this case I note that the Plaintiffs said at the Case Management Conference that when they requested for the hospital record the Defendants refused to hand the said record over them. As pointed out to Counsel at the Case Management Conference though there are options available under the rules to access such relevant documents, I note that the Plaintiffs did nothing about it but their counsel rather made a tactical decision to attempt to reverse the onus at trial when he suggested to Dr. Senunyeme that he did not advise the 1st Plaintiff and the deceased of the complications because if he did he would have disclosed the patient’s record. To my mind and with respect to Counsel the onus remained with Plaintiffs to support their claims and the Defendant had no obligation to prove anything. He who asserts must prove.
[64] It very instructive to note that throughout the evidence of the 1 Plaintiff he repeatedly stated that “he had been advised and he believe same to be true”, however who ever advised him on serious medical issues raised in this case was never called as a witness to provide the Court with that opinion. It was indeed startling that throughout the trial, the Plaintiffs did not find it necessary to call a witness with the requisite expertise to help their case. Without expert evidence, the Plaintiffs’ claim that Caesarean Section and Myomectomy are major surgeries which are uncommon and should never be done could not be grounded in the science especially as the Defendants’ witnesses who are physicians challenged this argument and refused to accept same when suggested to them. This created a vacuum in terms of the quality of evidence Plaintiffs needed to adduce in support of their case. In another words, the failure by the Plaintiff to call any such witness did not assist their case. See OWUSU V. TABIRI [1987-88] 1 GLR 287.
[65] Given the nature of the claim, the Plaintiffs had a duty to adduce evidence to prove that the Defendants’ workers, that is the physicians, nurses and staff failed to act in accordance with the standard required of a trained medical person when they treated the deceased. While the 1st Plaintiff is an intelligent and well-spoken witness, he is without the expertise to carry the Plaintiffs’ case in terms of expert testimony beyond testimony of his personal experience in this case. The below exchange between the Defendants’ Counsel and the 1st Plaintiff buttresses the point. This is what happened when Mr. Agyire-Tettey was cross-examined by Ms. Cofie on October 17, 2017
Q: Take a look at Exhibit C, there is no indication that the deceased’s death was as a result of the combined surgery (the removal of the fibroid and the Caesarean Section (CS)).
A: That is accurate it doesn’t state the cause of death it only states what the Pathologist found initially.
Q: It has been indicated in Exhibit C that the cause of death was due to disseminated intravascular coagulation due to cumulative effects of suppurated endometritis is that not so?
A: Yes, and it also states wide spread trophoplastic embolization.
Q: I am suggesting to you that the cause of death indicated in Exhibit C cannot be attributed to the Defendants because all the required medical steps were taken before and after the surgery.
A: What she said is inaccurate I believe it can be traced back to them and if we are even to believe that they counselled us on the risk involved knowing that they would not have done only a physical examination but might have gone ahead to do both intrusive and extrusive examination of my wife to find out whether she was bleeding in her womb which was the reason why whenever she laid down she coughed.
Q: I am suggesting to you that all the required examinations were carried out on your wife on all the occasions that she went to hospital.
A: Once again assuming that they counselled us on the risk involved one would have expected that they would have a management plan for those risk and like I mentioned intrusive and extrusive examination e.g. Laporoscopy and a womb scan would have revealed that she was bleeding in her womb.
Q: I am suggesting to you that blood in a patient abdomen or womb does not cause a patient to cough.
A: That is not true if there is blood in the patient womb and the patient lays down it would cause the fluid to come to the thorax region and produce coughs.
Q: You are not a medical doctor are you?
A: I am not a medical doctor but I read online and it is confirmed by one of the doctors in his witness statement.
Q: And so the information you are giving this court is based on a reading you did online by an author that may not be a medical doctor, not so?
A: That may well be the case but it is also authenticated by one of the doctors.
Q: Can you show us which of the doctors said that?
A: Dr. Maya.
Q: Take a look at Dr. Maya’s statement and tell us where he states his witness statement
A: From paragraph 37 to paragraph 40 you can infer that that was what he was implying.
Q: So you are saying that it has not been categorically indicated in the witness statement based on your understanding of paragraph 37 to 40.
A: Yes.
[65] From the above discourse it is clear that the 1st Plaintiff’s contentions are only based on the information obtained by reading online. To my mind they Plaintiffs needed the assistance of an expert to make their case to the Court. Whilst on this, it is important to state that Counsel’s views as a medical doctor are not evidence in so far as same were not proffered from the witness box for him to be cross-examined.
[66] Now having stated and dealt with the short coming of the Plaintiffs’ evidence, it is also important to look at the law in regards to proof of negligence in relation to medical practice. In GYAN v. ASHANTI GOLDFIELDS CORPORATION [1991] 1 GLR 466 a case where a senior nurse at the out-patient department of the Defendant Company’s Hospital at Obuasi mistakenly thought that the child of the Plaintiff was suffering from malaria and gave him a chloroquin injection without any prior test or reference to the doctor on duty . It turned out that the child had polio and not malaria and so the injection led to the paralysis of the infant child's right leg. The plaintiff sued per his next friend, his father, for negligence on the part of the Defendants' Hospital servant. The Defendant denied liability and called a specialist to testify on its behalf that giving the injection without diagnosis was not out of place. The main ground of negligence was the contention that if a proper diagnosis had been made prior to the treatment, it would have been discovered that the plaintiff was suffering from polio or at least, polio should have been suspected.
[67] The Court of Appeal stated the law in regards to medical negligence when it dismissed the Plaintiff’s appeal because the trial Court ruled against him that:
“when a plaintiff pleaded negligence against a defendant, he could not succeed in a court of law if he did not substantiate by credible evidence the allegations of negligence upon which his claims was based. In the instant case, since the negligence alleged related to the practice of medicine, it implied negligence in the exercise of a particular skill. The true test for establishing negligence in diagnosis or treatment on the part of a doctor was whether he had been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. Therefore as the evidence on record showed that the nurse who treated the infant plaintiff did what most, if not all, medical men would have done in the circumstances on that occasion and as the plaintiff had failed to lead any evidence to substantiate his allegation that the nurse had failed to follow laid down medical regulations, the plaintiff had failed to prove that his paralysis was attributable to any omission or negligent act of the defendants and the action would therefore be dismissed”.
[68] In a recent case titled DR. SANDYS ABRAHAM ARTHUR v. THE GHANA MEDICAL & DENTAL COUNCIL CIVIL APPEAL NO: H1/214/2012 – Coram: Kanyoke, Ofoe & Irene Charity Danquah Delivered 31 July 2012. Ofoe JA in his concurring judgment stated the law that
“I will agree with the appellant when he contended that in diagnoses and treatments there are differences of opinion between medical officers. A medical officer is not negligent merely because his conclusion differed from the other professional or because he displayed less skill or knowledge than the other. As stated in the case of Hunter v. Hanley 1955 SC 200 and Whitehouse v Jordan (1980) 1 ALLER 650 cited by the appellant, the true test in establishing negligence in diagnosis or treatment on the part of a doctor is whether he had been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of acting with ordinary care. Fair and reasonable standard of care and competence are required….Wrong diagnosis per se should therefore not result in a finding of negligence. The facts of each case should be the sole determinant whether a medical man should be found negligent for wrong diagnosis or not”. [Emphasis Mine].
[69] In evaluating the Plaintiffs’ evidence I have been mindful of the principle in the case of WIAFE VRS. KOM [1973] 1GLR 240 at 245 where the court held that:
“In the assessing of evidence and the weight to be given to it, the correct principle is as stated by Lord Mansfield that “all evidence is to be weighed according to the proof, which it was in the power of the one side to produce and the power of the other to have contradicted”.
In the instant case, I have not been impressed with the evidence adduced by the Plaintiff as it did not in my opinion satisfy the evidentiary standard on the balance of the probabilities to enable the Plaintiffs succeed.
[70] The tort of negligence comprises three essential elements:
(1) the existence of a duty of care,
(2) breach of that duty of care, and
(3) injury to the claimant caused by the breach
It is trite learning that the first step in proving negligence in tort is to establish a duty of care owed by the Defendant towards the Plaintiff, which duty of care arise from the nature of the relationship between them. By the authorities, a breach of the duty by the Defendant must first be established, and there must also be a damage suffered by the Plaintiff as a result of the breach. See the case of EDWARD NASSER & CO LTD. V. McVROOM & ANOTHER [1996-97] SCGLR
[71] It is also important to note that to say that a person is negligent in law is another way of saying that he owes a duty of care to another and that the duty has not been observed and/or not carried out. In other words, that duty of care is breached and the breach has resulted in damage to the person. See also the old celebrated case of DONOGHUE v STEVENSON (1932) AC 562, HEAVEN v PENDER (1883) 11 Q.B.D 503
[72] The duty of care owed by a physician working in his capacity as a physician is not to fall below the standard expected of him or her. To that extent it is my opinion that physicians have a duty to conduct their practice in accordance with the conduct of a prudent and diligent doctor in the same circumstances of their basic training. The standard has also been described as the “degree of skill, care, and learning ordinarily possessed and exercised by other physicians in similar circumstances” (Bryars Estate v. Toronto General Hospital (1997), 1997 CanLII 2381 (ON CA), 152 D.L.R. (4th) 243 (Ont. C.A.) at paragraph 19.
[73] From the above exposition of the law it is clear that for the Plaintiffs to succeed they needed to prove that the way doctors Senunyeme, Maya, Asamoah, Frempong and others treated the deceased is such that no doctor of ordinary skill, care and learning ordinarily possessed by other physicians would do what they did if acting with ordinary care.
[74] Also, based on the law in my respectful opinion the fact that Counsel for the Plaintiffs as a medical doctor would have come to a different conclusion does not by itself mean that Dr, Maya or any of the physicians who treated the deceased was negligent. Their actions ought to be a clear departure from the generally acceptable treatment required in the situation which confronted them.
[75] Finally, it is also important to point out that the post mortem report states the cause 
of death as follows:
“In my opinion the cause of death is due to disseminated intravascular coagulation (multiple bleeds) due to the cumulative effects of suppurative endometritis (womb infection) and wide spread trophoblastic embolization, The Mechanism of death is multiorgan failure. A natural cause of death”.
Dr, Senunyeme testified that trophoblastic embolization is a common condition associated with pregnancy. From the evidence the Plaintiffs did not impeach/challenge that piece of evidence and did not provide any of evidence to show that it happened due to the choice of surgical procedures in the case at bar. To that extent the postmortem report further undermines the premise of the Plaintiffs’ case.
[76] On the available evidence therefore, it is my finding based on all of the evidence that on the balance of probabilities there is no credible evidence that the Defendants’ servants were negligent when they treated the deceased as a patient at the University of Ghana Hospital. It is clear that the deceased death cannot be attributed to the doctors who treated her because they fell short of the standard required of them. There is no cogent evidence that the 1st Plaintiff’s wife death was due to the negligent actions and/or in actions of the Defendants’ servants. In arriving at the above conclusion, I reject the sole evidence of the Plaintiffs proffered by the 1st Plaintiff as bald allegations which were not backed by any acceptable cogent evidence.
[77] The Plaintiffs’ claim is for damages, which is one of the several remedies that are open to a Plaintiff who suffers injury or harm as a result of the tortuous act or breach of contract of another. In law, damages are awarded as compensation by a Court to a Plaintiff/Claimant for harm, loss or injury suffered as a result of a tort suffered or a breach of contract.
[78] Having found that the Defendants’ servants were not negligent and therefore not culpable for the death of the 1st Plaintiffs’ wife, I also find that the 1st and 2nd Defendants cannot be vicariously responsible for alleged torts committed. If the doctors at the University Hospital did no wrong legally and are not responsible for the death of Mrs. Juliet Sodokeh Agyire-Tettey then the University and the Hospital and the director of medical services are not liable to pay any compensation to the Plaintiffs. It follows therefore that my analysis ends here as it will serve no useful purpose to consider the claims in respect of the financial loss to the Plaintiffs and other expenses in taking care of the little child
[79] Consequently, I find that the Plaintiffs are not entitled to their claim and I hereby dismiss all the claims. In order that I may not be misunderstood, I wish to state that I have reached this conclusion with no relish but while I commiserate with the Plaintiffs and the deceased’s family, I wish to state that my oath demands that I dispense justice in accordance with the law for justice has always been administered according to laid down rules.
Conclusion & Disposition:
[80] This matter is tragic and sad on so many fronts. I cannot gloss over the irony that the Deceased had worked training health care professionals to bring healing and relief to patients. I cannot also gloss over the fact that what the 1st Plaintiff especially experienced caring for his wife immediately prior to and after the impugned surgical procedures was nothing short of nightmarish and I also cannot gloss over the fact that today the 1st Plaintiff is the primary caregiver of a child who will grow without its natural mother. A family has lost a daughter, sister, wife and mother under tragic circumstances. Finally, I cannot gloss over the fact that the time has come for this nation to take a serious look at medical care for citizens because accessing same has become a scar on our national conscience. How come no assistance could be found at both Ridge Hospital and 37 Military Hospital when the physicians at Legon called for help? Who knows, it is possible the life of the deceased could have been saved had help come from one of those hospitals early.
[81] Based on the evidence presented and the law, I can only sadly re-echo the wise words of the late Chief Justice of this Republic whilst sympathizing with the Plaintiffs for their unfortunate loss. In FRIMPONG v NYARKO [1998-99] SC GLR 734, where the Supreme Court was confronted with a problem whereby applying the law would have severe consequences on the party, Wiredu JSC (as he then was) said at page 742:
“. The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy, however plausible can never be elevated to become a principle of law. The appellants are out of court, and their case would deservedly be put out of court in accordance with law”
Again taking a cue, in my respectful opinion, no matter how strong the sympathies I may feel for the Plaintiffs that cannot override the principles of law that I have applied.
[82] In terms of cost Defendants Counsel asked for GH¢50, 000. The Plaintiffs’ Counsel said the Court should decide. My first reaction to Counsel’s request was to say ‘I make no order as to cost’ because of the circumstances and the facts as presented. However, I am mindful of the fact that this judgement is as a result of a full blown trial. To that extent, I think that the Defendants are entitled to some costs though not the GH¢50,000 requested by Counsel. Based on all of the facts I shall award the Defendants a nominal amount of GH¢7,000.