THE Supreme Court has ordered Teba Medical Centre Limited to pay a Lusaka couple K50,000 as damages for causing the death of their baby due to negligence. In this case, Dr Sultanova Zumrad appealed against the Lusaka High Court’s decision that had ordered him and Teba Hospital to pay Kasamba Kalinda and her husband Roy Kalinda, K50,000 after they were found liable of causing the death of the baby in March 2017.
The Kalindas sued Teba Hospital together with Dr Zumrad who was a visiting consultant obstetrics gynaecologist at the hospital and the High Court found both vicariously liable and ordered them to pay the couple K50,000. But in the appeal, Dr Zumrad advanced three grounds in which he argued that the trial judge erred and misdirected himself both in fact and law by ignoring the fact that he was an employee of Teba Hospital, who committed the offence, if any, in the course of her official duties of which the hospital was liable.
The appellant also contended that the High Court judge misdirected itself by holding that she was negligent when the evidence from the couple and the hospital witnesses clearly demonstrated that she was not negligent. Dr Zumrad had also submitted that the court misdirected itself by entering judgment against her without evidence warranting entry of judgment against her.
She further argued that the judge was wrong to find her personally liable for the death of the baby, saying Teba Hospital was a limited company with a separate legal personality while she was a part-time employee of the hospital.
“In the circumstances, Teba Hospital is vicariously liable for acts or omissions done by her in the course of her employment, ” argued Dr Zumrad.
And in its judgment, Chief Justice Ireen Mambilima sitting with Supreme Court justices Albert Wood and Roydah Kaoma allowed Dr Zumrad’s appeal, finding that Teba Hospital was vicariously liable for the actions of the nurse, which led to the death of the baby.
“We order that it (Teba Hospital) pays the entire damages of K50,000 as ordered by the lower court together with interest also as ordered. Costs shall be for the appellant, as against Teba Hospital, to be taxed in default of agreement,” said the Supreme Court.
According to evidence on record, Kasamba, who was an antenatal patient, reported to Teba Hospital on March 23, 2017 when she was in her 37th week of pregnancy.
The court heard that Kasamba had a complaint of abdominal pains.
When the nurse who was on duty examined her, she found that she was not in active labour and advised her to go back home but because she mentioned that she had a history of short term labour, the nurse referred her to Dr Zumrad who admitted her overnight for observation and rest. Before leaving the hospital, the doctor gave instructions to the nurse who was on duty that she should be called if anything such as bleeding, contractions or drainage arose and indicated to Kasamba that she might need to conduct a caesarian section to deliver the baby who was estimated to weight 4.9 kilogrammes.
It was heard that Kasamba went into active labour and the doctor who had instructions that the doctor should be called knocked off and the one who was on duty at the time did not call. By midnight, Kasamba had fully dilated and was moved onto the delivery bed where she was encouraged to push by the nurse and at 01:00 hours the baby presented its head but it stopped moving as it was stuck by the shoulders.
When the doctor was called, she arrived at about 01:40 and managed to deliver the baby but it was dead.
The couple sued the doctor and the hospital.