NAILA QURESHI & ANOTHER VS DR. RAFFIQUE PARKER & 2 OTHERS

1. Case Title and citation

Qureshi & another v Parkar & 2 others (Civil Suit E610 of 2007) [2025] KEHC 13512 (KLR)

2. Court Name and Bench

Court: High Court of Kenya, Milimani Law Courts

Bench Type: Single judge

Name of Judges: HON. Justice Alexander Muasya Muteti

3. Date of Judgement

4th June 2025

4. Parties involved

1st Plaintiff: Naila Quereshi 

2nd Plaintiff: Kailesh Jobanputra ( The husband to the 1st plaintiff.)

Defendants:

1st Defendant: Dr. Rafique Parker 

2nd Defendant: Dr. Naji Said

3rd Defendant: Aga Khan Health Service Kenya

5. Facts of the case

The plaintiff had an issue of endometriosis and she sought Medicare from the defendant’s hospital. She underwent a hysterectomy procedure on October 2005 where she consented only to removal of her ovary and uterus but later learned that her cervix was also removed without her knowledge and informed consent. 

After the surgery, she experienced pelvic pain and sexual dysfunction hence she sought a follow up medical checkup. Between 13th to 16th September 2006, she went for treatment of pelvic endometriosis from the 1st defendant upon which she later learnt was as a result of medical negligence during the first surgery. During the procedure, her bladder was scarred causing her to develop vesico-vaginal fistula. She was referred to the 2nd defendant who failed to detect the issue correctly, mostly due to lack of a flexible cystoscope at the 3rd defendant’s hospital.

As her condition worsened, she sought for medical treatment in south Africa where the consultants confirmed that the vesico-vaginal fistula issue had developed as a result of medical negligence during the endometriosis surgery. 

The plaintiffs later learnt that the plaintiff had been barred from medical practice in Uganda, and hence the 3rd defendant employed an unskilled and incompetent practitioner, breaching duty of care to the patients. The plaintiffs filled a suit for compensation of general and special damages for the financial and marital loss they had suffered over the years.

6. Issues raised 

• Whether the 1st defendant was negligent during the treatment. 
• Whether there was informed consent from the patient (1st plaintiff) by the 1st defendant to remove her cervix during the operation, as she had only consented to removal of ovaries and uterus.
• Whether the 2nd defendant failed to perform adequate diagnostics and treatment.
• Whether the 3rd defendant could be held vicariously liable because of the acts of its employee doctors.
• Whether the plaintiff suffered damage as a result of medical negligence.
• Assessment of the appropriate general and special damages.

7. Arguments of the parties

Plaintiff’s Argument

The 1st defendant performed a hysterectomy procedure and second treatment for pelvic endometriosis unskilfully, leading to bladder damage causing her vesico-vaginal fistula.

During the procedure, her cervix was removed by the 1st defendant without her consent.

The 2nd defendant failed to detect the fistula issue due to relying on outdated equipment.

The 3rd defendant owed a duty of care to ensure proper medical equipment is available, and to undertake due diligence in vetting its employed doctors to ensure they are skilled efficiently.

The combined negligence from all the defendant parties resulted in lifelong reproductive, sexual emotional and financial harm.

They relied on the case of Montgomery v Lanarkshire Health Board where the issue of informed consent was discussed to be core in medical practice.

Also in the case of Samira Kohli v Dr. Prabha Manchandra, the supreme court of India held that removal of reproductive organs requires prior informed consent from the patient and the doctor should explain all procedures to the patient in a manner that they can comprehend easily.

Defendant’s argument

The 1st and 2nd defendant argued that:

• They exercised reasonable skill consistent with a responsible body of medical opinion.
• The fistula could have resulted from the Plaintiff’s history of advanced endometriosis, not negligence.
• The 1st Plaintiff allegedly consented to removal of the cervix, and laparoscopic surgery was standard practice.
• Complications such as fistula are an inherent risk in gynaecological surgery.

The 3rd Defendant hospital argued that:

• All its staff and equipment met acceptable standards.
• The 1st Defendant was an independent practitioner, not an employee, and the hospital should not bear vicarious liability.
• Excessive damages would harm the health system, referencing Lord Denning’s caution in H. West & Son Ltd v Shepherd and the Kenyan case of Kigaragari v Aya, warning against burdening society with excessive awards

8. Judgement 

The court entered judgement in favour of the plaintiffs after having the following findings:

• The 1st Defendant was grossly negligent in performing the hysterectomy and failing to obtain informed consent for removal of the cervix hence violating section 9 of the Health Act on informed consent.
• The 2nd Defendant was not liable, as his conduct did not amount to negligence.
• The 3rd Defendant hospital was negligent, having allowed the 1st Defendant to practice despite knowing he had been disbarred in Uganda, and failing to provide adequate diagnostic equipment such as the flexible cystoscope.
• The Plaintiffs proved on a balance of probabilities that negligence directly caused the vesicovaginal fistula, urinary incontinence, loss of sexual function, emotional distress, and financial losses.

The court made the following orders:

• The 1st and 3rd defendant were held jointly and severally liable while the 2nd defendant was acquitted off the claims.
• The plaintiff was awarded special damages amounting Kshs.7,207, 524.20
• General damages for:

Loss of cervix – Kshs. 30,000,000

Loss of consortium – Kshs. 40,000,000

Loss of amenities – Kshs 20,000,000

Pain and suffering – Kshs. 10,000,000

Loss of capacity to earn – Kshs. 20,000,000

Loss of society and services by the 2nd Plaintiff – Kshs. 30,000,000

• The plaintiffs were awarded total damages amounting to Kshs. 157, 207, 524.20

9. Legal reasoning

The Court incorporated contemporary practices of Montgomery, which focused on autonomy among patients. The consent had no witness signature and failed to provide the removal of the cervix or other treatment procedures making it incompetent. The Court held that:

• The consent should be specific, informed and free.
• Lack of the doctor explaining risks and alternatives meant that the consent was invalid and was therefore liable.

A. Standard of Care and Negligence.

Based on the Laws of England of Halsbury, the Court believed that negligence is committed when a medical practitioner fails to perform an act, which a reasonably competent practitioner would do in the situation.

The 1st Defendant violated this standard in that:

• Not consulting a urologist even though involvement of the bladder was expected.
• Lack of exercising adequate surgical skill, which translates to fistula.
• Either removing an organ without express consent.

The 3rd Defendant violated its obligation by:

• Licensing a disbarred Ugandan practitioner.
• Lack of provision of modern diagnostic machinery, which also led to the delay in the diagnosis of the fistula.

B. Composite Negligence

Applying the doctrine of composite (joint and several) negligence, the Court determined that in cases where harm is caused because of negligence of two or more parties, the Plaintiff is entitled to an entire/full recovery of the all the parties who caused harm to the Plaintiff without apportionment.

C. Damages

The Court emphasized:

• Awards must be just and reflective of Kenyan social and economic conditions, but also sufficient to restore the Plaintiffs as far as money can.
• Sexual dysfunction and loss of marital consortium constitute a significant compensable injury, particularly where caused at a young age.
• Special damages were strictly proved per the rule in Hahn v Singh.

10. Conclusion   

The case is a significant milestone in the history of Kenyan medical negligence law, especially its strong assertion of the concept of informed consent, institutional responsibility and patient autonomy. The case illustrates clearly that physicians should divulge all the risks, alternatives and extent of any procedure to guarantee that the consent is free, informed and specific. It further emphasizes that hospitals bear a self-governing responsibility of checking the qualifications of practitioners, proper equipment, and safe care systems and therefore they are responsible of institutional failures as well as of individual practitioners vicariously. The Court applied the doctrine of composite negligence in order to reaffirm that where the injury to a patient is caused by a number of actors, they can be jointly and severally liable without blame apportionment. Another interesting feature of the case is that the comparative common-law authorities have been utilized in making the decision as there is limited Kenyan precedent, which indicates that the judiciary is receptive to international precedent in safeguarding the rights of patients. Altogether, the case represents a positive change in the direction of more stringent medical practice scrutiny, improved patient dignity, and a shift in the Kenyan legislation towards a more patient-focused system of healthcare