George Ngosi

Term Project 1
Medical Law and Ethics
LS251
Chisanga Mutale
March 10, 2025

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IN THE HIGH COURT FOR ZAMBIA 2025/HK/01
AT THE DISTRICT REGISTRY
HOLDEN AT KITWE
(CIVIL JURISDICTION)
BETWEEN:
ESTHER ZIONE HARA PLAINTIFF
AND
KITWE GENERAL HOSPITAL DEFENDANT

Before Honourable Justice G.A. Ngosi

On: 26 February, 2025 and 10th March, 2025
For the Plaintiff: Mr. W. Chiume of Messrs Chiume &
Co.
For the Defendant: Mr. I. Kamangadazi of Messrs Kitwe Attorneys at Law
______________________________________________________________________
JUDGMENT
______________________________________________________________________

Texts referred to:

1. Callaghan CB, The Negligence Case: Res Ipsa Loquitur (Thomson Reuters 2002)
2. Kennedy I and Grubb A, Medical Law: Text and Materials (Butterworths 2000)
3. Olarinde ES and Chigbo C, ‘An Examination of Contemporary Issues Relating to
Medical Liability’ (2015) 5 Journal of Sustainable Development Law and Policy 1
4. Osborne PH, The Law of Torts (6th edn, University of Toronto Press 2020).
5. Superville-Sovak B, Rasminsky M and Finlayson MH, ‘Complications of Phenol
Neurolysis’ (1975) 32 Archives of Neurology 4
Cases referred to:
1. Allan v New Mount Sinai Hospital [1980]109 DLR (3d) 536
2. Bolam v Friern Hospital Management Committee [1957] 1 WRL 582
3. Cassidy v Ministry of Health [1951] 2 KB 343
4. Chester v Afshar [2005] UKHL 41
5. Chatterson v Gerson [1981] 1QB 432
6. Collins v Hertfordshire CC [1947] 1 All ER 633
7. R v Bateman (1925) 19 Cr App R 8

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 8. Sidaway v Governors of Bethlehem Royal Hospital [1985] 2 All ER 643
9. Wyatt v Curtis [2003] EWCA Civ 1779
10. Glasgow Corp v Muir [1943] 2 AC 448
In this action the plaintiff by her writ of summons and statement of claim filed therewith
claims damages for medical negligence. The plaintiff avers in the said statement of
claim that the defendants on 6th June, 2024 acting through their servant administered
spinal phenol injections intended to alleviate chronic pain resulting from a previous
hernia operation, without her informed consent. The plaintiff alleges that her consent
was invalid due to the defendants’ servant’s failure to properly inform her of the
associated risks of the spinal phenol injections, which led to adverse effects, including
numbness in her right leg and impaired mobility. In their defence, the defendants deny
this allegation. On the question of the medical negligence by the defendants’ doctor, the
defendants aver that the spinal phenol injections were a practice that conformed with
that of a respectable body of opinion within the relevant part of the medical profession,
and in any case, the doctor acted on his own responsibility in the matter and not
pursuant to any direction from the hospital management.
The following facts are common ground. The plaintiff underwent a hernia operation,
after which she developed chronic pain in the scar area. Seeking relief, she consulted
the defendants’ doctor, who recommended spinal phenol injections to alleviate the pain.
The plaintiff consented to the procedure. Following the second injection, the plaintiff
experienced numbness in her right leg which has affected her mobility. She contends
that she was not informed of the potential risks, and asserts that she would not have
consented to the procedure if the doctor had properly informed her of the risks. Thus far,
the facts are agreed.
The following issues are before this Court:
1. Whether the plaintiff’s consent was valid in the absence of being informed of the
risks.
2. Whether the defendants’ owed a duty of care to inform the plaintiff of the risk
associated with the spinal phenol injection.
3. Whether the defendants’ failure to inform the plaintiff of the risks constitutes a
breach of duty, leading to the plaintiff’s injury.
The plaintiff’s case as indicated at the very beginning of this judgment is that the
defendants through their servant administered spinal phenol injections without her
informed consent, and this constitutes medical negligence. The plaintiff’s evidence,
through her witness testimony, was that the doctor did not adequately inform her of the
risks of nerve damage and numbness, which accompany the said procedure. The
plaintiff’s testimony indicates that she would have opted against the procedure had she
been aware of the risks. The plaintiff further contends that the doctrine of res ipsa
loquitor points to medical negligence. The defendants contest this claim through the
witness statement of Dr. Kapindu, Kitwe General Hospital Board Chairperson. In his
testimony, Dr. Kapindu stated that spinal phenol injections are important as they destroy
nerves that send pain signals, and this procedure was necessary in the plaintiff’s case,
even without informed consent because the practice conformed with that of a

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respectable body of opinion within the relevant part of the medical profession. The
defendants also claim that according to Kitwe General Hospital policy, doctors were
completely liable for any medical negligence.
There are a plethora of authorities on the prerequisite of consent for all medical
treatment. Kennedy & Grubb (2000) state that patients have a right to make their own
decisions about their medical care, basing this decision on the information provided to
them by the health care professionals responsible. In Allan v New Mount Sinai
Hospital [1980]109 DLR (3d) 536, where a woman had clearly indicated that she
wanted to be injected in her right arm but was instead injected in the left arm by the
doctor, the court made it clear that any medical procedure without oral or written
consent from the patient constitutes an assault and battery on that patient. This Court,
based on the aforementioned authorities, views informed consent as an important legal
and ethical principle in health care. But it would be lacking for this Court to not consider
the legal recognition of competency with regards to a patient’s right to consent.
Sidaway v Governors of Bethlehem Royal Hospital [1985] 2 All ER 643 guides this
Court on who is a competent patient. Lord Bridge of Harwich dealt with this question
when he stated: ......it is clearly right to recognise that a conscious and adult patient of
sound mind is entitled to decide for himself whether or not he will submit to a particular
course of treatment proposed by the doctor, most significantly surgical treatment under
general anaesthesia. This entitlement is the foundation of the doctrine of ‘informed
consent’ which has led in certain American jurisdictions to decisions, and, in the
Supreme Court of Canada, to the dictate on which the appellant relies, which will oust
the Bolam test and substitute an ‘objective’ test of a doctor’s duty to advice the patient
of the advantages of and the disadvantages of undergoing the treatment proposed and
more particularly to advice the patient of the risks involved.
This Court further notes that informed consent is a contentious issue in the British
courts. In Chatterson v Gerson [1981] 1QB 432, the plaintiff underwent an operation to
reduce the severe pain she was feeling. Unfortunately, after the operation the sensation
in her right leg had only temporary alleviation of the pain, and the plaintiff would now
only move with a stick. She sued for battery, as there was no informed consent to
undergo the operation on her part, but the claim was denied as the court deemed that
the plaintiff had broadly consented to the operation even though it was not informed,
and that the action was brought under trespass instead of negligence which deals with
risks and implications.
And in addition, in British courts, though a doctor fails to give full information prior to the
operation, it does not necessarily mean that he will be liable. His liability under
negligence depends on the Bolam test which asks on whether his practice conformed
with that of a respectable body of opinion within the relevant part of the medical
profession. McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WRL
582, stated that medical negligence to arise, the defendant must not have met the
standard of the ordinary skilled man exercising and professing to have that skill. And in
normal circumstances, if the doctor’s practice conforms with that of a respectable body
of opinion within the relevant part of the medical profession there can be no case for
medical negligence. However, Olarinde & Chigbo (2015) state that there might be
circumstances in which the nature of the risks in question would dictate disclosure of
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information to the patient regardless of the normal practice. The Court, in Wyatt v
Curtis [2003] EWCA Civ 1779 illustrated this when it held that an obligation to disclose
to the patient arose where substantial risks were attached to a medical procedure,
irrespective of the Bolam threshold.
It can thus be discerned, from the various authorities on informed consent, that a
competent patient can claim damages for medical negligence even if the doctor’s
practice conformed with that of a respectable body of opinion within the relevant part of
the medical profession, if substantial risks were attached to a medical procedure.
In this case, the circumstances which led to the claimed medical negligence are clear.
The plaintiff’s chronic pain condition made her seek help from the defendants’ doctor on
the 6th of June, 2024. There is no evidence that the plaintiff was incompetent when she
sought this medical help. And the recommended treatment of spinal phenol injections
worsened her condition, and furthermore, she was not properly informed of the
associated risks of the spinal phenol injections. Thus, it is the duty of this Court to
decide if that amounts to medical negligence on the part of the defendants’ doctor.
Osborne (2020) has ably explained that the elements of negligence are:
a) duty of care
b) breach of the duty of care
c) damages
And the burden rests on the plaintiff to prove all these elements on a balance of
probabilities.
The first element of negligence is duty of care. It is a settled matter that a doctor owes a
duty of care to his patient. In R v Bateman (1925) 19 Cr App R 8, the court stated that:
“If a doctor holds himself out as possessing special skill and knowledge, and he is
consulted as possessing such skill and knowledge, by or on behalf of the patient, he
owes a duty to the patient to use caution in undertaking the treatment.”
A patient approaching a doctor expects sound medical treatment accompanied by all
the knowledge and skill that the doctor possesses. It is an undisputed fact that the
plaintiff in this case consulted the doctor to help alleviate the chronic pain she was
suffering from. In the present circumstances, the doctor owes certain duties to his
patient and any breach of such duties gives a cause of action for negligence against the
doctor. These duties including advising on appropriate treatment, obtaining informed
consent from the patient, and providing the appropriate treatment. The defendants’
doctor was required to carry out these duties to the standard of care that a prudent and
reasonable health care professional would exercise under the circumstances. In this
case, a prudent and reasonable health care professional would recommend spinal
phenol injections, as they a very efficient method of long term relief of chronic pain. But
a study on the complications of phenol treatments, which this Court has read, shows
that spinal phenol injections are very risky. Phenol treatments can cause triparesis,
which is a condition where three body limbs experience weakness instead of complete
paralysis, and respiratory arrest, and these two can lead to direct neural damage and
vascular damage (Superville-Sovak, Rasminsky & Finlayson, 1975). In right of this, a
prudent and reasonable health care professional would duly inform his patient of the

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associated risks of the spinal phenol injections, so that the said patient gives informed
consent after analyzing the risks and implications of the procedure. And then, a prudent
and reasonable health care professional would provide the appropriate treatment, in this
case spinal phenol injections, after getting informed consent.
The second element of negligence is breach of duty of care. Facts and the evidence
presented before this Court clearly show that the defendants’ doctor breached his duty
of care to plaintiff. The defendants’ defence of spinal phenol injections being a practice
that conforms with that of a respectable body of opinion within the relevant part of the
medical profession, does not convince this Court that the doctor fully discharged his
duties to the required standard. The Court notes that the doctor recommended spinal
phenol injections as the solution to the plaintiff’s chronic pain, this conforms with that of
a respectable body of opinion within the relevant part of the medical profession, and a
prudent and reasonable health care professional would have likely recommended the
same treatment. However, the doctor failed in his duty to duly inform the patient of the
associated risks and implications associated with spinal phenol injections, and instead,
went ahead with the procedure without getting informed consent. But practice that
conforms with that of a respectable body of opinion within the relevant part of the
medical profession is not a defence when there are substantial risks attached to a
medical procedure. See Wyatt v Curtis (supra). It is the view of this Court that direct
neural damage and vascular damage are substantial risks that warranted the doctor to
seek informed consent from the patient before proceeding with the procedure. This was
never done. Hence, there is breach of duty by the doctor.
It is also the view of this Court that the spinal phenol injections caused the damage
suffered by the plaintiff. The evidence shows that the chronic pain was the only ailment
the plaintiff had before the spinal phenol injections. But after the procedure, she had
numbness in her right leg and impaired mobility; symptoms of direct neural damage
associated with the medical procedure. The case of Cassidy v Ministry of Health
[1951] 2 KB 343 aptly describes the plaintiff’s situation. In casu, Denning LJ (as he then
was), in a case of a plaintiff going to the hospital for an operation to remedy an issue
with his two fingers came out with four stiff fingers, stated that the plaintiff was entitled to
say:
“I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers
and my hand is useless. This should not have happened if due care had been used.
Explain it if you.”
This Court has deliberately quoted Cassidy v Ministry of Health (supra) because it is
a leading case of the principle of res ipsa loquitur which the plaintiff’s counsel raised to
infer the negligence to the defendants. This Court wants to clarify on this principle
before moving forward in its judgment. Res ipsa loquitur means that the facts speak for
themselves and is a method by which a plaintiff can advance an argument for purposes
of establishing a prima facie case to the effect that in the particular circumstances the
mere fact that an accident has occurred raises a prima facie factual presumption that
the defendant was negligent, according to Callaghan (2024). This Court is of the view
that the principle does not apply in this case and counsel was reaching. The doctrine
can only apply when the plaintiff cannot identify the precise nature of the negligence

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which caused his injury, and where no explanation of the way in which the injury came
to be inflicted has been offered by the defendant. This is not the case here. The plaintiff
clearly claimed lack of informed consent as the medical negligence in question, and the
evidence before this Court is that the injury suffered by the plaintiff was as a result of the
spinal phenol injections.
Damages is the last element of negligence. It is a settled matter at tort law that if a client
experiences injury or loss that a reasonable person would have been able to foresee in
the same situation, damages can be claimed (Osborne, 2020). Now there are various
damages that a client can experience in a medical setting and these include:

 illness worsening
 Medical costs
 Legal costs
 Loss of income
 Pain and suffering
 Loss of enjoyment of life
 Permanent disability
When calculating damages, courts use the reasonable test. In this case, health care
professionals are expected to take reasonable care of patients, their actions are
compared to what another health care professional in the same situation would
reasonably do, and damage caused by negligence is harm that a reasonable person
would have been able to foresee. But as was held in Glasgow Corp v Muir [1943] 2
AC 448, the reasonable test is objective and does not always reflect average behaviour.
Thus, this Court had to decide whether to use the reasonable test or another test
altogether. This Court decided to use a different test since health professionals are
required to have special skill and competence, which is completely different from that of
an average prudent reasonable man under the reasonable test. As was stated by
McNair J in Bolam v Friern Hospital Management Committee (supra), a medical
doctor, must meet the standard of the ordinary skilled man exercising and professing to
have that skill. It is the view of this Court that a health professional with adequate
knowledge and competent skill would have known the substantial risks and implications
associated with the procedure, and hence sought informed consent from the plaintiff.
The case of Chester v Afshar [2005] UKHL 41 is an important example of this. In casu,
the court held that the doctor was liable for negligence because the court felt that the
patient should be able to make an informed choice as to undertake the surgery: not
being told of all the risks clearly undermined this informed choice.
This Court, therefore, finds that the plaintiff has discharged her burden of proof on her
claim of medical negligence. The defendants’ doctor owed a duty of care to the plaintiff,
this duty was breached and caused damages to the plaintiff.
Having established that there was medical negligence, this Court now has to decide
who is liable between the doctor and the defendants. In their submission, the
defendants asserted that the doctor acted on his own responsibility in the matter and
not pursuant to any direction from the hospital management. And the defendants also

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claimed that according to Kitwe General Hospital policy, doctors were completely liable
for any medical negligence. This Court finds the submission of these assertions by the
counsel of the defendants as preposterous. There is enough evidence to show that the
doctor is duly employed by Kitwe General Hospital. And under tort law, it is a settled
principle that vicarious liability makes employers liable for the actions done by their
employees when discharging their duties. The court, in Collins v Hertfordshire CC
[1947] 1 All ER 633, held that the hospital was vicariously liable for the actions of the
house surgeon since he was their employee. This Court is of the view that the plaintiff
would have brought a suit against the doctor for direct liability, or against the hospital for
vicarious liability. The plaintiff chose the latter, and it is within her rights to do so.
This Court will now award damages. The general rule concerning damages is that the
purpose is to return the claimant as far as possible to their position before the tort
occurred. This Court wishes to emphasize that damages are there to compensate for
the loss suffered by the claimant, and generally not to punish the defendant. Now to the
matter at hand. The plaintiff claims damages for medical negligence which has resulted
in pain and suffering due to the numbness in her right leg, and her quality of life has
greatly diminished due to the impaired mobility. These are non-pecuniary losses and
cannot be quantified in monetary terms. This Court views that it is just that she gets
compensated for her losses. The exact amount of damages will be determined in a
subsequent hearing. But it is also the duty of this Court to point out that other damages
are also available to court users such as pecuniary losses, cost of care, and legal costs.
However, this Court cannot award such losses in a vacuum, and since these were not
claimed by the plaintiff, they will not be awarded.
Thus, this Court makes the following orders:
1. Judgment is entered in favour of the plaintiff.
2. The defendant is liable for the plaintiff’s injuries.
3. The matter is adjourned for an assessment of damages.

G.A. Ngosi
High Court Judge

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 References
Texts
Callaghan, C.B. (2004). The Negligence Case: Res Ipsa Loquitur. Thomson Reuters.
Kennedy, I., & Grubb, A. (2000). Medical Law: Text and Materials. London:
Butterworths.
Olarinde, E.S., & Chigbo, C. (2015). An Examination of Contemporary Issues Relating
to Medical Liability. Journal of Sustainable Development Law and Policy, 5(1), 1-27.
Osborne, P.H. (2020). The Law of Torts (6th ed.). University of Toronto Press.
Superville-Sovak, B., Rasminsky, M., & Finlayson, M.H. (1975). Complications of Phenol
Neurolysis. Archives of Neurology, 32(4)
Cases
Allan v New Mount Sinai Hospital [1980]109 DLR (3d) 536
Bolam v Friern Hospital Management Committee [1957] 1 WRL 582
Cassidy v Ministry of Health [1951] 2 KB 343
Chester v Afshar [2005] UKHL 41
Chatterson v Gerson [1981] 1QB 432
Collins v Hertfordshire CC [1947] 1 All ER 633
R v Bateman (1925) 19 Cr App R 8
Sidaway v Governors of Bethlehem Royal Hospital [1985] 2 All ER 643
Wyatt v Curtis [2003] EWCA Civ 1779
Glasgow Corp v Muir [1943] 2 AC 448