By Fidelis Munyoro
A Harare lawyer has lost her appeal against a High Court ruling absolving the Avenues Clinic of negligence in a case in which it was being sued for $400 000 for allegedly contributing to a patient’s miscarriage.
Ms Ruth Nyashadzashe Sai suffered a miscarriage while she was admitted at the Avenues Clinic.
She sued the Avenues Clinic for $400 000 plus interest for damages she claimed arose from pain and suffering.
However, the clinic successfully applied for absolution from the instance, but Ms Sai approached the Supreme Court on appeal.
A three-judge panel led by Justice Anne-Mary Gowora heard the appeal last Tuesday.
After hearing submissions from both parties’ counsel — Professor Lovemore Madhuku for Ms Sai and Advocate Method Ndlovu from the Chambers acting for the Avenues Clinic — Justice Gowora ruled that the clinic was not negligent and never contributed to the miscarriage.
She upheld the lower court’s decision and threw out the appeal.
“The appeal be and is hereby dismissed with costs,” said Justice Gowora.
Prof Madhuku argued that the Avenues Clinic staff was negligent in failing to perform the instructions of the doctor who attended to his client.
“The miscarriage was solely caused by the respondent’s nurses who failed to act timeously to avert the tragedy,” said Prof Madhuku.
“The nurses acted negligently and did not take proper steps expected of a hospital of its reputation to prevent the miscarriage.”
Prof Madhuku insisted in his submission that the case was “a development area of the law”, hence the High Court should not have dismissed the plaintiff’s case at the close of her case.
In his counter-argument, Adv Ndlovu said the Avenues Clinic could not be held responsible for the miscarriage, adding that the appeal was devoid of merit.
“The respondent was never at any stage negligent,” said Adv Ndlovu.
“The declaration of the appellant did not disclose a cause of action and the court ought to deal with the issue even though the parties had not dealt with it in the High Court proceedings.”
Adv Ndlovu argued that there was no contractual agreement between Ms Sai and the private hospital, saying the practice was that the Avenues Clinic only provided doctors with medical facilities, who then bring their patients at the health centre.
“The plaintiff was under the care of her doctor, Morgan Mhlanga, at all the material times,” he argued.
“No single instruction that Dr Mhlanga gave to the nurses was disobeyed as the medical notes suggest the nurses acted according to the doctor’s instructions in prescribing treatment.”
The High Court ruled that the mere fact that Ms Sai had a miscarriage, which she believed could have been avoided, should not justify presence of negligence.
Ms Sai, the court ruled, should have provided evidence showing negligence.
It was also the court’s finding that Ms Sai’s testimony did not prove all elements of negligence nor breach of contract and granted the application for absolution from the instance.
In her summons, Ms Sai, also a lawyer, claimed that she was admitted to the Avenues Clinic for three days in January 2014 for emergency pregnancy treatment.
She claimed that her admission was in terms of a contract between her and the clinic.
Ms Sai also claimed that during her stay at the clinic, nurses should have taken all steps reasonably expected of a clinic of its reputation to prevent her miscarriage. The Herald