A court in Mombasa has ordered The Aga Khan Hospital to pay a patient over Sh1.6 million for negligence after an operation left her with a perforated oesophagus.
Principal Magistrate Lewis Gatheru found that the hospital proceeded with the surgery without notifying Rachel Karimi of the high risk of perforation in the said procedure.
“I enter judgement for the plaintiff (Karimi) against the defendants (Aga Khan Hospital) jointly and severally at a sum of Sh1,627,960,” said Gatheru.
Karimi had visited the Aga Khan Hospital on June 22, 2024, on suspicion that she had swallowed a staple pin, which got stuck in her oesophagus, causing discomfort in her neck.
Karimi said after the procedure was done, she experienced severe chest pains, which led to further examinations as she was having breathing problems.
She said that a follow-up check-up revealed that one-third of the oesophagus was nicked, which caused food and food products to leak into the chest cavity, hence the chest pains.
Karimi sued Dr Hassan Hussein and the Aga Khan Hospital for negligence and claimed compensation of Sh9,420,000 against the Sh700,000 offered by the hospital.
According to Karimi’s family physician Dr Elijah Yulu, the oesophagoscopy procedure carries a 10 per cent risk of perforation, such as the one that the patient was diagnosed with.
Dr Yulu, a specialist in gastroenterology with 10 years’ clinical experience and four years as a consultant, said that Karimi was not aware of the risk involved with the procedure, a fact the hospital disputed.
Dr Yulu opined that the critical point of injury likely occurred during the initial oesophagoscopy or during the foreign body retrieval attempt on June 22, 2024, because Karimi did not have the symptoms before the surgery.
Dr Yulu told the court that after the procedure, Karimi developed severe chest pains, and a CT scan showed that she had a collapsed left lower lung lobe with consolidation and an accumulation of fluid.
He further said that a CT scan was negative for an overt pattern of staple pin injury.
The doctor said that a chest X-ray at Matt X-ray revealed a large left collection of fluids in the left lung, and she was referred to a cardiothoracic surgeon in Nairobi.
Dr Yulu said the operation was supposed to be with general anaesthesia, but Karimi was told it was a small procedure with local anaesthesia.
The magistrate said the hospital failed to show the extent to which the patient had been made aware of the risks involved with the procedure and what she consented to.
The court observed that the hospital failed to produce the consent form to inform the court what Karimi was authorising.
Gatheru said that Karimi was not having any other symptoms, least of all those associated with asthma, and that the medical complications that followed can only be attributed to the perforation that occurred.
“This document (consent form) belongs to the defendant (hospital), and yet they chose to keep it from exposure, which, to a rational, reasonable mind, can be deduced as may not be supportive of the narrative by DWI (the doctor). "This, to me, is a significant red flag,” said Gatheru.
However, the hospital denied any negligence and insisted that Gatheru was aware of the said risk and signed a consent form with the husband.
The hospital said it did a direct laryngoscopy followed by oesophagoscopy under general anaesthesia to retrieve the foreign body, but none was found.
The doctor at Aga Khan said that he explained the risk of the procedure to the patient in the presence of her husband, and they signed a consent form, a fact Karimi disputed, stating that she was simply told it was a simple procedure requiring local anaesthesia.
The hospital speculated that the sharp object might have moved down and caused the perforation. However, the court asked where the said object was.
“They are silent on where the object is since it was not found in the end. As PWI (Dr Yulu) explains, there was no likelihood that the staple pin caused the perforation or injury to the lungs. To me, therefore, the more likely explanation is that the procedure led to the perforation as explained by PWI,” said Gatheru.
