Medical Negligence Costs Hospital Owner 1.1 million Birr


Cassation Bench reduced damages from 4.9 million Br and resorted to equity, not law, on some points




The Cassation Bench of the Federal Supreme Court may have trespassed its jurisdiction, according to an expert, in reducing a 2.4 million Br that  the Supreme Court had decided Hayat Hospital’s owner, Ibrahim Nawd, should pay in damages for negligent delivery at the hospital, to 1.1 million Br, even though the Bench found no error of law.

The October 6, 2015 ruling by the Cassation Bench brought the amount of the claim down from the 4.9 million Br, which both the High Court and the Supreme Court had maintained, for the mother who claimed that her daughter, delivered at Hayat, had sustained a degree of paralysis in both arms because of the attending doctor’s negligence in managing the process.

The judges who passed the decision at the bench were Almaw Wole, Reta Tolosa, Mustefa Ahmed, Kene’a Qitata and Lellise Dessalegn.

According to the claim the health defect was caused by the doctor’s failure to comply with standard medical procedures that should be followed during assisted delivery.  Hence the mother, Aster Solomon, initially asked for 4.9 million Br as a remedy for her daughter’s lifelong injury-related expenses, including costs for medical treatment in and outside of the country and special institutions required to care for her due to the resulting disability.

But Ibrahim, the defendant, as a first count of defense, raised the statute of limitations, which the law requires to be two years in cases of tort. His second stance of defense was related to the efficiency and high standard of his hospital, arguing that it is adequately equipped with needed technologies as well as qualified specialists, including the specialist doctor in the case, Yilma Aseres. The defendant said the woman already had a health problem when she came to his hospital and that she did not support her claim of negligence in observing medical procedures with any proof.

The court made the hospital liable for incorrectly using the surgical instrument known as forceps,causing muscle weakness and nerve impairment in the child after hearing evidence provided by the woman. The court said that the medical doctor, knowing that the child was big and that the mother had other risk factors, should have used other mechanisms rather than a forceps delivery and that he did not ask the mother for her permission before using the instrument.

It was proved that the child could not do any task requiring the use of her hands, on her own. Thus the High Court had ordered the hospital to pay the mother 2.4 million Br in compensation. The defendant appealed to the Supreme Court, which upheld the lower court’s decision.

In its final appeal made to the Cassation Bench, Ibirahim’s lawyer said it was unlawful to shift the burden of proof of liability from the mother to the hospital. He also argued that it was justifiable in case of emergency not to request the mother’s permission. He objected that his request to provide expert evidence from the Ethiopian Gynecologists Association was rejected by the court.

The mother’s response to the appeal was that the court had no jurisdiction to see the case as there was no mistake of law and that she had evidence from 12 specialists and different health institutions, including Black Lion Hospital’s Medical Board, Bethel Teaching Hospital, Inter-medical Diagnostic & Imaging Center, proving the causal relations of the process to the paralysis of the child’s arms, due to negligent and forceful delivery by the doctor. Ibrahim had no evidence against these claims.

Noting that providing sufficient medical instruments was not enough and that the only way to free the hospital from liability was if the doctor could proved that the injury sustained by the newborn was beyond his control. The court said that it found no mistake of law in the lower courts’ decision that the doctor was liable for the disability caused. But it reduced the remedy to 1.1 million Br dropping some of the detailed grounds of expenses, like the cost of hiring a driver and others.

The Cassation Bench reduced the remedy to 1.1 million Br, rejecting the costs of a guardian as difficult to determine, and it also reduced the physiotherapy and gymnasium costs from 1.4 million Br to 500,000 Br saying the court had equity to determine compensation. The court confirmed the compensation determined by the lower court for medical costs outside the country rejecting the allegation raised by the hospital that the evidence showing costs was not supported by the documents’ authentication.

Tamrat Kedanemariam, chairman of the Ethiopian Lawyers Association and a legal expert in civil and criminal law, differed with the way the Cassation Bench had handled the case.

Firstly, the Cassation Bench is mandated to examine errors of law, particularly if evidence that should have been included had been missed or if evidence that should have been ignored had been included, he said.

“The Cassation Bench cannot re-examine the reliability of evidence and facts related with evidence,” he said.

Issues of reducing or increasing compensation are also not subject to appeal and once determined, should not be changed except if an error of law was committed in the process, by arbitrary determination of the sum to be compensated, according to Article 2145 of the Extra Contractual Law.

Thirdly determining compensation through equity by court is applicable only in cases where the damage is certain but its extent is difficult to assess monetarily; and compensation assessed on the basis of evidence in lower courts cannot be changed by equity, Tamrat said.

“In this case the costs of physiotherapy were ascertained by the lower court,” said Tamrat, which means the higher court could not change it.”

Despite this the Cassation Bench, whose decision is binding, reduced the compensation for physiotherapy arbitrarily using equity while the lower court determined it using evidence, he argued. At the same time the court failed to determine the amount of compensation for potential costs of the guardian, saying it is difficult to assess it.

Even if it had used the approach it took to reset the compensation, Tamrat argued that the Bench should have determined the amount through equity, even if that would still be wrong.

“But from the outset the Cassation Bench has no power to reduce an amount determined by lower courts,” he repeated.

According to him, the Cassation Bench has no power to frame issues not raised by the applicant. But in this case, even the fact that it had reduced the compensation without a clear request from the applicant, was in itself, unlawful. For these reasons the Cassation Bench’s ruling was somehow inconsistent with the law and could not be considered a landmark decision that gives guidance to existing problems, he said.



By LUCY KASSA
FORTUNE STAFF WRITER

Published on Oct 12,2015 [ Vol 16 ,No 806]


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