James Makunura v Miriam Kanyenze

### Preamble
1
HH 731-18
HC 5663/13
---------


JAMES MAKUNURA

versus

MIRIAM KANYENZE

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 24, 25, 28 September and 7 November 2018

CIVIL TRIAL

D Mwonzora, for the plaintiff

V Chinzamba, for the defendant

TAGU J: The plaintiff issued Summons against the defendant claiming a total of    US50 000.00 as damages for negligently causing the death of his wife, interest at the prescribed rate from date of demand to date of full payment as well as costs of suit. The amount is made up of US$100.00 for funeral expenses, US$40 000.00 for loss of spousal support and US$9 000.00 for child support.

The facts are that the plaintiff was married to the now deceased Mildred Makunura in terms of the then Chapter 37, now Chapter 5:11. The defendant is a medical doctor. Plaintiff’s wife sought medical attention for fibroids from the defendant sometime in 2010. The defendant charged plaintiff a fee of US$1000.00 which he paid to have his wife treated. After the surgery the defendant is alleged to have negligently discharged Mildred Makanura from hospital without attending to her hypertension. As a result she died three days after discharge. The defendant was charged and found guilty of improper conduct on her own admission by the Medical and Dental Practitioners Council of Zimbabwe. In his declaration the plaintiff claimed that had it not been for defendant’s negligence his wife would not have lost her life and he would not have incurred the subsequent transport, funeral and burial expenses as outlined above.

In her plea the defendant denied that she was negligent in the manner alleged or at all. She said when the plaintiff’s wife was discharged from hospital she was no longer her private patient. She further claimed that the now deceased was discharged by a Cuban consultant working under her at Mutare Provincial Hospital. Prior to her discharge the deceased had been appraised to visit the nearest health facility for regular check on her blood pressure. She further stated that the cause of death was not medically proved. In amplification defendant pleaded that she never admitted personal liability before the Disciplinary Council. She said she simply admitted liability on behalf of the Cuban consultant who discharged the deceased if it was true that the deceased’s hypertension was high. She further disputed the amounts claimed which she said were plucked from the air.

The issues to be decided in this case as contained in a joint pretrial conference minute are as follows-

“1. Whether the Defendant by deed or omission caused the plaintiff’s wife, MILDRED

MAKANURA’S death.

2. Whether the said death was culpable.

3. Whether therefore consequential to the said death the Defendant is liable to the

plaintiff.

4. If the Defendant is liable, what is the quantum of the damages thereof.

5. Whether at law the Defendant has a defence to the Plaintiff’s claim.”

THE EVIDENCE

The plaintiff was the sole witness. His evidence was that he was not pleased with the manner the defendant had handled his late wife’s discharge. He caused an examination to be done on the deceased by a pathologist and it was discovered that she died as a result of hypertension. He attributed negligence on the defendant. He wrote a letter of complaint to the Medical and Dental Practitioners Council of Zimbabwe leading to the defendant being charged and her subsequent plea of guilty. The matter was also taken as culpable homicide and defendant was tried in the Regional Court at Mutare. However, he was not advised of the outcome to date. He further gave evidence as to the losses he suffered as a result of the death of his wife.

The defendant was a sole witness in her defence. She failed to secure attendance of her witnesses. She applied to have the record of proceedings in the Regional Court containing evidence of these witnesses but the application was opposed by counsel for the plaintiff since the document she intended to produce was not discovered, was not certified as a true copy of the record and was not complete. The application was dismissed by the court. In her evidence in chief she firstly denied that she discharged the deceased from Hospital. She said the deceased could have been discharged by a nurse or by a Cuban Doctor who worked under her supervision. She only admitted during cross examination that she is the one who gave instructions that the now deceased be discharged. She maintained that she only pleaded guilty before the Medical and Dental Council of Zimbabwe to have negligently caused the death of the deceased by failing to offer post operation care as a means of protecting her subordinates. She further told the court that she was acquitted in the Regional Court because the medical officer who worked under her and had carried out the postmortem on the deceased turned around and denied having carried a postmortem report and even denied his findings appearing on the death certificate and the postmortem report which had implicated her as the cause of death. She said for that reason cause of death was not known.

ANALYSIS OF EVIDENCE

It is common cause that on two occasions the plaintiff brought his late wife for treatment at the defendant’s surgery. It is further common cause that on both occasions the defendant performed surgery on the now deceased Midred Makunura at Mutare General Hospital. On the second occasion the defendant operated the late Midred Makunura and initiated her discharge to Island Hospice for home based care. This is a place where people who had been diagnosed with chronic ailments are sent waiting to die. She then left for Holiday. The late Mildred Makunura then died two days after her discharge from hospital of cardiac failure due to hypertension. A death certificate produced in court and completed by a Government Medical Officer Dr Ijaz confirmed the cause of death as cardiac failure due to hypertension.

Although the defendant denied the cause of death in my view a record compiled by a public official is prima facie evidence of what is contained therein. See s 12 of the Civil Evidence Act [Chapter 8:01]; Nolon v Povall & Ors 1953 (2) SA 202 (SR) at page 209.

Unhappy about the cause of death of his wife the plaintiff decided to file a complaint with the Health & Dental Professional Council. At the hearing before the Health and Dental Professions Council the defendant pleaded guilty to negligence. She was duly found guilty and was reprimanded. It is common cause that up to this day the defendant had not appealed or sought to overturn the verdict. The verdict is extant. This court therefore has to take judicial notice that the Health and Dental Professions Council, a quasi-judicial organ, is composed of health professionals who are better equipped to make a finding of whether there was medical negligence or not. The defendant being a specialist doctor was at all material times aware of the serious nature of the allegations against her before the Disciplinary Council. On her own volition she pleaded guilty to medical negligence. For her to turn around now and say she pleaded guilty on behalf of her subordinates cast doubt on her credibility. If she indeed did so to cover her subordinates it follows therefore, if her story is to be believed, the Medical officer who made an about turn and disowned his postmortem report as well as the death certificate did so to cover the defendant who was his senior. In my view it follows that the question of liability is settled by the plea of guilty and the subsequent verdict of the Health & Dental Professionals Council.

See Section 36 of the Civil Evidence Act; DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (SC) at page 97; O’shea v Chiunda 1999 (1) ZLR 333 (SC) ; Plipion on Evidence 7th Edition page 18 and Kashiri v Muvirimi 1988 (1) ZLR 270 (SC).

In casu the plaintiff proved on a balance of probabilities that the death of his late wife was as a result of the defendant’s negligence. His oral evidence was corroborated by other evidence which include-:

Entry on the death certificate relating to cause of death,

The verdict of the Health and Dental Professionals Council,

The admission by the defendant that she is the one who initiated the deceased’s discharge from hospital and that she did not make a follow up but the she let the deceased go and die at Island Hospice for home based care,

The failure by defendant to produce evidence of deceased‘s medical  report showing that at the time she ordered deceased’s discharge from hospital the defendant had in fact checked the deceased’s blood pressure and satisfied herself that deceased was fit to be released.

The failure by the defendant to bring vital evidence rebutting the plaintiff’s evidence. It is noteworthy that given the nature of this trial defendant did not produce a single document or record to rebut the evidence against her. Not only that several vital questions as the record shows were not put to the plaintiff to comment by the defendant’s counsel.

I therefore found the plaintiff to be a credible witness as opposed to the defendant as I will show here under.

The defendant has a porous defence to liability. Her defence reconstructed is that:-

Deceased’s cause of death was not medically proven;

Deceased was discharged by a Cuban doctor and or a nurse;

Deceased was no longer her patient.

In her evidence in chief and during cross examination the defendant was unable to show that the entry on the death certificate regarding the cause of death was false. She did not produce evidence to the contrary. Conveniently she omitted to produce the medical records of her last examination of the deceased person. These would have shown whether the now deceased was fit for release or not or that some medication was prescribed for her hypertension or not. Under cross examination she conceded that she was alerted to the cause of death during the disciplinary hearing but went on to plead guilty anyway. When asked as to why she then pleaded guilty she changed her story and say she was shocked. Further she destroyed her defence that the deceased was discharged by a nurse or a Cuban doctor by conceding under cross examination that she ordered the release of the now deceased after the second operation and before she went away on some holiday. Further, by her own admission the defendant wrongly diagnosed the deceased as suffering from incurable cancer yet the pathological report found that there was no malignancy on the tissue sent for testing. The defendant indicated she was to call a number of witnesses but failed to bring even a single witness for one reason or another. She appeared to have been introducing new information as the trial progresses which information was not put to the plaintiff to comment. I found her evidence to have been pathetic and discredited under cross examination. She was not a credible witness as compared to the plaintiff who stuck to his story.

I therefore find the defendant liable for the death of the deceased. She was negligent in the manner she handled the deceased after operating on her.

QUANTUM OF DAMAGES

Having found the defendant liable I have to assess the quantum of damages. The plaintiff is claiming a total of US$50 000.00. The defendant in her evidence in chief despite that she was represented by a seasoned legal practitioner did not challenge the quantum of damages claimed by the plaintiff at all. It is trite law that what is not disputed is taken as having been admitted. Equally where damages have not been proved these may not be granted or the court may grant a nominal amount of damages. See Caroline Mabaire v Shepherd Jailos and the Ministry of Transport and Communications HH- 228-10.

The plaintiff has been able to prove liability on the part of defendant. He has been able to prove that both the deceased and him-self carried used to carry out a lucrative farming business in rural Nyanga North. They had been married for more than 40 years and have been assisting each other when the met her death their joint agricultural business was successful due to the positive influence of the deceased and now all that is gone. Hence he is claiming damages for loss of spousal support. He further proved that the deceased was looking after a minor child, and that he incurred funeral and transport expenses single handedly.

However, in my view a total of US$50 000.00 is a bit on the high side.  It is not clear how long the deceased was to live, hence in the absence of exact figures, it is difficult to calculate the loss. Be that as it may the plaintiff lost some spousal support. The same applied to the minor child that lost the deceased’s support. It is within human experience that were a person dies transport and funeral expenses are incurred. In my view a reasonable figure has to be awarded and not one that breaks the defendant. I would assess the total damages at US$ 20 000. As being reasonable and I so award.

IT IS ORDEDED THAT

The Defendant be and is hereby ordered to pay to the plaintiff US$20 000.00 being damages for negligently causing the plaintiff’s wife’s death.

Interest at the prescribed rate of 5% per annum from date of summons to date of payment.

Costs of suit.

Mwonzora and Associates, plaintiff’s legal practitioners

Mugadza Chinzamba and partners, respondent’s legal practitioners