⦿ CASE SUMMARY OF:
Ojo v. Gharoro (2006) – SC
by NSA PaulPipAr
– Medical Negligence;
– Hearsay evidence;
– Res ipsa loquitur;
Miss Felicia Osagiede Ojo
1. Dr. Gharoro;
2. University of Benin Teaching Hospital Management Board;
3. Dr. S.A. Ejide
(2006) 10 NWLR (Pt. 987) 173;
⦿ LEAD JUDGEMENT DELIVERED BY:
Niki Tobi, JSC
* FOR THE APPELLANT
– P.O. Oseminwenkha, Esq.
* FOR THE RESPONDENT
– Chief H.O. Ogbodu.
⦿ FACT (as relating to the issues)
After an operation conducted on the Appellant, a needle was remained in her abdomen. This caused the Appellant pains. The Appellant sued for negligence at the trial court but she lost.
She further appealed to the Court of Appeal, but she lost again. Hence, a further appeal to this court.
1. Whether the learned Justices of the Court of Appeal were right in finding that the evidence of the 1st Respondent was that of an eye witness who can be described as a star witness and therefore attract the most probative value in view of the printed evidence on record? And if the answer to the afore-mentioned issue is in the negative was there other evidence from which the Court could find that the Respondent rebutted the presumption of negligence against them?
2. Whether the learned Justices of the Court of Appeal were right in their finding that the issue of damages was not covered by the grounds of appeal and therefore incompetent?
3. Whether the learned Justices of the Court were right in dismissing the case of the Appellant in view of the totality of the evidence led?
4. Whether the learned Justices of the Court of Appeal were right in holding that the 1st Respondent’s evidence on the use of a substandard surgical needle by the Respondents during the operation of 17/12/93 was a general statement and did not connote liability or negligence by the Respondents? And if the answer to the afore-mentioned issue is in the negative what is the legal consequence of such adverse admission on the defence of the Respondents.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. No less a person than the Appellant said that the 1st Respondent examined her when she came to the hospital, an examination which resulted in the finding that she had fibroid in her fallopian tube which needed an operation. That apart, witness stated unequivocally that the second operation to remove the needle was carried out by the 1st and 3rd Respondents. Can she, in the light of her own evidence, seriously contend that the evidence of 1st Respondent is hearsay? That should not lie in her mouth because she will be contradicting herself and this Court will not assist her to contradict herself.
ii. The only witness who gave evidence for the Appellant is the Appellant herself. She did not call any expert witness to give evidence and so her evidence had to struggle for the first place with the expert evidence of the three witnesses for the Respondents – two medical doctors and a radiologist. There was real cause and need for the Appellant to call expert evidence.
iii. One other aspect that should have determined the level of negligence on the part of the Respondents was evidence on the size of the piece of the needle left in the abdomen. No evidence was led on that and the party who ought to have led evidence on that was the Appellant, if she felt that such evidence would be in her favour. The above apart, I expected the Appellant to tender a complete surgical needle and call an expert witness to demonstrate to the Court the piece or pieces that remained in the abdomen of the Appellant, again if she thought that such evidence would be in her favour. Again, she did not deem it proper to call such evidence.
2. ISSUE 2 ON DAMAGES WAS CONSIDERED UNNECESSARY AS NO ISSUE OF NEGLIGENCE WAS ESTABLISHED.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The fulcrum of this appeal is whether the Respondents rebutted the presumption of the tort of negligence, and particularly the doctrine of res ipsa loquitur, in this case. Appellant said they did not. Respondent said they did. Who is correct? I think the Respondents are correct. It is on record that only the Appellant gave evidence in apparent proof of negligence on the part of the Respondents. In a complicated and highly professional case such as this, where she relies on the doctrine of res ipsa loquitur, arising from an abdominal operation, I expected her to call expert evidence and here I have in mind surgeon or surgeons. I had earlier said this. Such expert evidence should have been taken along with the evidence of the 1st Respondent and DW1, all medical practitioners for purposes of determining where the pendulum tilts in the imaginary scale. As it is, the lay evidence of the Appellant, if I may say so, for lack of better expression, in an essentially professional matter, and in the professional areas, cannot match side by side with the evidence of 1st Respondent. DW1 and DW2. In the circumstances, I have no difficulty in coming to the conclusion that the presumption of negligence on the part of the Respondents was clearly rebutted by the evidence of the three witnesses, and I so hold.
ii. Negligence and in the context of this case, illustrating to the specific tort of res ipsa loquitur, like most other torts, is a negative tort, as far as the Defendant is concerned. The law therefore places a burden on the Plaintiff to prove that the Defendant was negligent, and in the circumstances of this case, the act of leaving the piece or pieces of needle in the abdomen of the Appellant (which qualified as the happening event) says it all. In the proof of the act, the Plaintiff must satisfy the twin but alternative standards of proof. (a) balance of probability and, (b) preponderance of evidence. In either of these standards, the Plaintiff must come out clearly with cogent evidence as to the specific act or acts of the Defendant, which resulted in the neligence, and not merely an agglomeration of act or acts lacking specificity. For res ipsa loquitur to apply, the event which gave rise to the neligence must tell its own story and it must invariably be a clear and unambiguous story of lack of duty of care.
iii. From the totality of the case before the trial Court, I believe the evidence of the 1st Respondent that “the needle in this case got broken accidentally and proper care was taken to locate the pieces.” In any human situation accidents are bound to happen and when they happen they must be accommodated by humanity – the quality of being humane or human. This is because no human situation is perfect. The only perfect situation is the situation created by the Almighty God. It has no accident at all. I am satisfied from the evidence that all efforts to locate the piece or pieces of the needle proved abortive, despite the application of the best professional skills by the Respondents. In my humble view, the Respondents did their best, and their best in my view, was the best for the medical profession in this country in terms of case or patient management.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The 1st Respondent made a general statement on the quality of surgical needles in shops. He did not say that the needle used for the operation on the Appellant was substandard. And what is more, I do not seem to understand what counsel means by “inferentially pointed conclusively…” I must say that the inference drawn by learned counsel is not borne out from the evidence of 1st Respondent.
⦿ SOME PROVISION(S)
Judge, Lord Denning, in his sub-chapter titled “Doctors at Law” in Part Six on Negligence in his book: The Discipline of Law, pages 237, 242 and 243: “A medical man, for instance, should not be found guilty of negligence unless he has done something of which his colleagues would say: “He really did make a mistake there. He ought not to have done it’…..but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risks. It would be wrong, and, indeed, bad law, to say that simply a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community, if it were so. It would mean that a doctor examining a patient, or a surgeon operation at a table, instead of getting on with his work, would be forever looking over his shoulder to see if someone was coming up with a dagger for an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not therefore, find him negligent simply because something happens to go wrong…. You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man, in short, when he is deserving of censure.”
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made. – Niki Tobi, JSC. Ojo v. Gharoro (2006)
When a third party relates a story to another as proof of contents of a statement such story is hearsay. Hearsay evidence is all evidence, which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. – Niki Tobi, JSC. Ojo v. Gharoro (2006)
The word “hearsay” is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else. – Niki Tobi, JSC. Ojo v. Gharoro (2006)
Where a document, by its contents, conveys hearsay evidence then the parol or oral evidence based on that document will definitely or invariably be hearsay. The reverse position is also correct and it is that where a document, by its contents, does not covey hearsay evidence, then the parol or oral evidence based on it will not be hearsay evidence, if the witness has an intimate relationship with the document and gives evidence of that relationship. – Niki Tobi, JSC. Ojo v. Gharoro (2006)
Let me take the opportunity to say one last word on the quality of surgical needle. 1st Respondent, a Consultant, said under crossexamination that a surgical needle is not a strong tool. It breaks or snaps easily. This worries me. It is sad that an instrument for operation of the human being is not strong enough that “it breaks or snaps easily”. It is surprising that an instrument, which goes into a human body, is not strong enough. I seem to be repeating myself and I have no apologies for that. I think something must be done and very urgently. The medical profession must invent surgical needles that will stand the test of time to ensure that they do not “break or snap easily”. – Niki Tobi, JSC. Ojo v. Gharoro (2006)
How does this case support or help the case of the Appellant? I do not see any. If I can hold that a wife is not a tainted witness in a case involving her husband, how can I hold that an employee is a tainted witness in a case involving his employer? – Niki Tobi, JSC. Ojo v. Gharoro (2006)
The doctrine of res ipsa loquitur is premised or predicated on the mere fact of the event happening which is based on two rebuttable presumptions and I repeat two rebuttable presumptions, viz: (1) That the event happened as a result of a duty of care somebody owes his neighbour (b) And that somebody is the Defendant. – Niki Tobi, JSC. Ojo v. Gharoro (2006)
The crucial element is that res ipsa loquitur will not apply when there is evidence as to how the occurrence took place. – Oguntade, JSC. Ojo v. Gharoro (2006)