KSHS. 157 MILLION MEDICAL NEGLIGENCE: ESSENTIAL LESSONS FOR KENYA’S HEALTHCARE PROVIDERS

A woman’s life was forever altered by unauthorized surgery and medical negligence, leading to a landmark Kshs. 157 million High Court award in Naila Qureshi v. Dr. Raffique Parker & Others (June 2025). The High Court decision has set a significant precedent, clarifying the standards for medical negligence, informed consent, and institutional accountability. This landmark judgement is a critical wake-up call for hospitals and medical practitioners to prioritize patient rights and rigorous oversight.

Brief Facts of the Case

In September 2006, Naila Qureshi underwent surgery at Aga Khan University Hospital for pelvic endometriosis. Without her informed consent, Dr. Rafique Parker removed her cervix. The 1^st Defendant also scarred the 1^st Plaintiff’s bladder during the procedure causing her to develop a fistula. These events caused the 1^st Plaintiff severe physical and psychological harm, in addition to corrective treatments amounting to over Kshs. 7,200,000/=.

The 1^st Defendant further assured the Plaintiff that she was well, despite her complaints of pain and difficulty in normal bodily functions. This forced the Plaintiff to seek medical attention in South Africa, where the 1^st Defendant’s negligence was discovered. Naila Qureshi and her husband sued the doctors and Aga Khan Hospital, alleging medical negligence, pain and suffering and loss of society and services.

The Court’s Decision

The court found the 1^st Defendant (Dr. Raffique), a gynaecologist, guilty of medical negligence as he performed the functions of a urologist despite not being qualified. The 3^rd Defendant, Aga Khan Hospital was also found liable for corporate negligence as it failed to vet the 1^st Defendant and ascertain his professional standing.

Justice Alexander Muasya Muteti awarded the Plaintiffs Kshs. 157 million in damages, holding both the hospital and Dr. Parker liable.

Court’s Reasoning

The court’s ruling hinged on the failure of the 1^st Defendant and the hospital to uphold their duty of care, substantiated by legal principles and expert testimony. For informed consent, the court applied the modified objective test from Arndt v. Smith [1977], requiring doctors to provide patient-specific information about risks and alternatives. The 1^st Defendant’s consent form, unsigned by a witness and filled with abbreviations, failed to prove Ms. Qureshi was informed about the cervix removal, violating standards set in Montgomery v. Lanarkshire Health Board [2015].

The 1^st Defendant’s negligence was further evident in the 2006 procedure, where he performed bladder surgery without urological expertise, causing a vesicovaginal fistula (VVF). The court relied on expert opinions from Dr. Bhanji and Dr. Richard Baraza, who criticized the lack of a multidisciplinary approach, a breach of standards in Huck’s v. Cole [1968]. Reports by South African doctors, Dr. Gecelter and Dr. Van Der Wat, confirmed the VVF and its link to Dr. Parker’s actions, necessitating corrective surgery abroad.

The hospital’s liability stemmed from corporate negligence, as articulated in Savita Garg v. National Heart Institute [2004]. It failed to vet the 1^st Defendant, who was banned from practicing in Uganda for prior misconduct and neglected to provide advanced diagnostic tools like a flexible cystoscope, delaying VVF detection. The court emphasized the hospital’s non-delegable duty to ensure competent practitioners and adequate facilities, per Darling v. Charleston Community Memorial Hospital [1965].

The court balanced international precedents with Kenya’s economic context, per Tayab v. Kinanu [1983], to justify the substantial damages for physical, emotional, and financial harm.

Advisory for Hospitals and Medical Practitioners

This judgement underscores the need for hospitals and medical practitioners’ immediate action to align with legal and ethical standards and to strengthen patient safety and compliance to avoid costly negligence claims. Here are practical steps to enhance patient safety and reduce liability:

1. Strengthen Informed Consent Processes: Ensure patients receive clear, jargon-free explanations of procedures, risks, and alternatives, tailored to each patient’s needs. Use comprehensive consent forms, avoiding reliance on abbreviations, as they do not suffice as evidence of informed consent. Consider including a witness to verify the consent process, documenting their presence.
2. Ensure witnessing of signing of consent forms: Hospitals should ensure that all consent forms signed by its patients are signed in the presence of a witness who can verify that the patients received clear, jargon free explanations of procedures, risks and alternatives.
3. Verify Practitioner Credentials: Hospitals must conduct thorough due diligence on all practitioners, including independent contractors by verifying qualifications, licensing, and disciplinary history with bodies like the Kenya Medical Practitioners and Dentists Council (KMPDC) to ensure competence.
4. Enhance Training on Medical Ethics and Safety: Implement regular training on informed consent, patient rights or patient-centred communication, and the KMPDC Code of Professional Conduct is essential. Emphasize clear communication and ethical decision-making to prevent negligence claims.
5. Maintain Robust Documentation: Accurate, detailed medical records are critical. Ensure consent forms, procedure notes, and patient communications are comprehensive and accessible, in line with constitutional rights under Article 35.
6. Ensure Adequate Diagnostic Facilities: Invest in modern diagnostic tools to enable timely and accurate diagnoses. Regularly audit equipment availability to meet industry standards.
7. Secure Professional Indemnity Insurance: With rising negligence claims, hospitals and practitioners should maintain adequate insurance to mitigate financial risks from potential lawsuits.

Conclusion

The High Court’s judgement reinforces that patient trust and safety are non-negotiable. Hospitals and medical practitioners must act decisively to uphold informed consent, verify practitioner qualifications, and maintain transparency in its procedures. By aligning with these standards, the healthcare sector can prevent costly litigation and deliver quality care.

What steps are your institution taking to strengthen informed consent and practitioner oversight? Share your insights below.

By Sean Kuira and Valerie Vinya

 

Disclaimer: This article is for informational purposes only and should not be taken to be or construed as a legal opinion. If you have any queries or need clarifications, please do not hesitate to contact Mr. James Nyiha, Senior Partner ( jnyiha@nyihamukoma.com ), Mrs. Grace Wangui, Managing Partner (wangui@nyihamukoma.com ) or your usual contact at our firm, for legal advice.