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|Case Number:||HAT Cause 17 of 2020|
|Parties:||CMO v Kenya Airways Limited, Kenya Airways Medical Centre-Pride Clinic & Phanice Nafula Maonga|
|Date Delivered:||05 Nov 2021|
|Court:||HIV and AIDS Tribunal|
|Judge(s):||Melissa Ng’ania Justus T. Somoire Dr. Maryanne Ndonga Abdullahi Diriye Tusmo Jama Dorothy Kimengech|
|Citation:||CMO v Kenya Airways Limited, Kenya Airways Medical Centre-Pride Clinic & Phanice Nafula Maonga  eKLR|
|Advocates:||Mrs. Katee for the Claimant Ms. Impano for the 1st and 2nd Respondent Ms. Kagombe h/b Ms. Mwirichia for the 3rd Respondent|
|Advocates:||Mrs. Katee for the Claimant Ms. Impano for the 1st and 2nd Respondent Ms. Kagombe h/b Ms. Mwirichia for the 3rd Respondent|
|History Advocates:||Both Parties Represented|
|Case Outcome:||Application dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIV AND AIDS TRIBUNAL
HAT CAUSE NO. 17 OF 2020
KENYA AIRWAYS LIMITED ....................................................1ST RESPONDENT
KENYA AIRWAYS MEDICAL CENTRE-PRIDE CLINIC....2ND RESPONDENT
DR. PHANICE NAFULA MAONGA.........................................3RD RESPONDENT
1. The Claimant filed her Statement of Claim dated 3rd February, 2021 seeking the following reliefs against the Respondents, jointly and severally;
a. Damages for unlawful disclosure of the Claimant’s status;
b. Damages for discriminating against the Claimant on grounds of her health status;
c. Damages for the breach of confidentiality, impairment of dignity, emotional and psychological suffering;
d. Cost of this suit; and
e. Any other relief that the Court may deem fit.
2. The Claimant avers that she was tested for HIV without her consent and further that her HIV Status was shared with a third party by her employer.
3. The Respondents filed their Statements of Response to the Claimant’s Statement of Claim dated 15th June, 2021 and 12th May 2021, respectively, denying the allegations made in the claim.
4. There are certain undisputed facts in this case. The Claimant was an employee of the 1st Respondent and visited the 2nd Respondent facility for antenatal care. The 3rd Respondent is a General Practitioner who was engaged at the 2nd Respondent facility at the material time and who attended to the Claimant during her clinic visits. The Claimant first visited the 2nd Respondent facility when she was presenting with bleeding, and during that visit, voluntarily disclosed her status to the 3rd Respondent. The 3rd Respondent inquired about the specific antiretroviral medication (ARVs) that the Claimant was taking in order to determine the suitable medication and/or treatment to give the Claimant.
5. During the course of the Claimant’s treatment, the 3rd Respondent prescribed various tests, including an ultrasound examination, total blood count, viral load, liver function test and gene-expert test, all of which are recommended for expectant women who are living with HIV.
6. Unfortunately, the Claimant had a miscarriage. The Claimant then lodged a complaint at the Kenya Medical Practitioners and Dentists Council (hereinafter KPMDC), complaining about mishandling of her pregnancy by the Respondents, which led to her miscarriage. Following the complaint, KPMDC wrote to the 2nd Respondent instructing them to submit a comprehensive response to the complaint and produce the entire patient file, which information was subsequently shared with KPMDC.
B. Claimant’s Case
7. In her Statement of Claim, the Claimant avers that on or about 9th April 2020, whilst expectant, the Claimant began spotting, which caused her to attend the 2nd Respondent facility for medical treatment. While at the facility, the Claimant informed the 3rd Respondent of her status prior to any treatment being administered. The Claimant avers that the 3rd Respondent then ordered a series of tests, all of which were related to her HIV status, ignoring the fact that the Claimant had visited the facility for treatment relating to her pregnancy.
8. The Claimant avers that the 3rd Respondent discriminated in the treatment as the 3rd Respondent did not refer the Claimant to a gynecologist who should have handled the matter. Further, when the 3rd Respondent asked the Claimant about the ARVs that she was taking, the same was stigmatizing and caused the Claimant emotional and psychological torture since the 3rd Respondent ought to have known the medication taken by persons living with HIV.
9. The Claimant further avers that she only disclosed her status to the 3rd Respondent who works at the 2nd Respondent facility. The facility being within the workplace of the Claimant, her colleagues and medical personnel working at the 2nd Respondent got to know her status, which the Claimant believes was disclosed by the 2nd and/or 3rd Respondent.
10. The Claimant testified that the 3rd Respondent prescribed some medication, then requested the Claimant to go to Gertrude’s Hospital, her primary care facility, in order to get her patient file. The Claimant was, however, unable to get the patient file from Gertrude’s Hospital since the Hospital cited confidentiality of the records and refused to release the file. It was at this juncture that the 3rd Respondent inquired about the specific ARVs that the Claimant was taking.
11. In her testimony, the Claimant stated that when asked about her ARVs, she did not know which specific ones she was taking. The 3rd Respondent then asked the Claimant to bring the medication to the clinic at her next visit. It was the Claimant’s testimony that the question about her ARVs greatly disturbed her since the Claimant felt that it was not her HIV status that was in issue at the time, but rather the bleeding.
12. The Claimant testified that on 16th April 2020, she went to the 2nd Respondent facility carrying the medication as instructed. The bleeding had not stopped. The 3rd Respondent proceeded to order a number of tests, some being HIV-related tests. The Claimant testified that she did not give consent to have an HIV test conducted.
13. It was the Claimant’s testimony that the bleeding did not stop. Instead it got worse. On 28th April 2020, the Claimant was home with some friends. The bleeding was so bad that she called the 3rd Respondent, who kept assuring the Claimant that the bleeding was normal. However, the Claimant’s friends got concerned, called a cab, but the Claimant was reluctant to leave the house. The 3rd Respondent asked the Claimant to go into the facility the following, but the Claimant insisted on seeking treatment the same day. The Claimant then proceeded to Metropolitan Hospital, which was the closest. At the Hospital, the Claimant was informed that she had an incomplete abortion. She later miscarried.
14. It was the Claimant’s testimony that during her admission in hospital, the Claimant was compelled to disclosed her status to her family since the Claimant had to send her brother to her house to pick her ARVs.
15. The Claimant testified that upon discharge from hospital, the Claimant contacted the 3rd Respondent and agreed to a meeting. On 25th June 2020, the Claimant met the 3rd Respondent. The 3rd Respondent refused to take responsibility for her actions, forcing the Claimant to report the matter to the 3rd Respondent’s superiors.
16. Since 25th June 2020, the Claimant has suffered sleepless nights. The 1st Respondent never called her back concerning her complaint. The Claimant then lodged a complaint with KMPDC about negligence and mishandling. She did not mention her status in the complaint. On cross examination by the 1st and 2nd Respondents, the Claimant stated that it was at the Metropolitan Hospital that she was informed that it was the 3rd Respondent who had messed her up.
17. It was the Claimant’s testimony that because of the actions of the Respondents, she has been psychologically affected. This was her first pregnancy. The Claimant cries a lot and has nightmares. She is not able to work normally.
18. The Claimant testified that the Respondents disclosed her status on paper. They disclosed her status at her workplace. She has even harbored suicidal thoughts as a result of this ordeal. On cross examination the Claimant stated that when she resumed work, she received differential treatment from her colleagues, although she did not report the same to the Human Resource Office.
C. Respondents’ Case
19. In their Statement of Response, the 1st and 2nd Respondent aver that the Claimant was at all material times treated with all reasonable skill and care expected of medical practitioners in accordance with general and approved practice. Further, they aver that any stigmatization or emotional or psychological torture suffered by the Claimant cannot be attributed to the 1st and 2nd Respondents.
20. The 1st and 2nd Respondents accept that they owed the Claimant a duty of care but state that they fulfilled this duty and are no way in breach as alleged by the Claimant. The 1st and 2nd Respondents accept that the Claimant’s loss of her pregnancy could cause physical, emotional or psychological suffering but deny that these effects are in any way attributable to the care that the Claimant received at the 2nd Respondent’s facility.
21. In her Statement of Defence, the 3rd Respondent avers that she prescribed tests that were necessary for the prognostication of the Claimant’s real ailment, if any, and the tests remained discretionary on the Claimant’s part.
These tests were necessary to discern if any change of ARV mediation was required during the pregnancy and not any prurient purpose.
22. The 3rd Respondent further avers that it is a mandatory requirement and also good practice to know the medication being administered to the Claimant for 3 main reasons. Firstly, to ascertain that the patient was indeed taking the medication. Secondly, to prevent the possible risk of cross reaction and/or counter reaction to any medication that the 3rd Respondent might have prescribed. Thirdly, to make a personal professional determination of the efficacy and suitability of the anti-retroviral medication that the Claimant was already on.
23. RW1 is a medical doctor and head of the Medical Services at the 2nd Respondent facility. RW1 adopted her witness statement dated 15th June 2021 as her evidence in chief. The witness testified that on 25th June 2020, the Claimant visited the 2nd Respondent facility alleging that the 3rd Respondent had mismanaged her pregnancy. The Claimant threatened to take legal action against the Respondents.
24. It was RW1’s testimony that she retrieved the Claimant’s medical file from the Clinic Management Solution (CMS) software, which is a safe and reliable software used by the 2nd Respondent to store patient files. The software has a multi-layered restricted access which only allows access to the medical staff attending to a patient.
25. From the Claimant’s patient file RW1 was able to make some findings. The Claimant visited the 2nd Respondent facility for antenatal care and medical attention on 9th April 2020 complaining of vaginal bleeding and lower abdominal pains. As part of ANC screening process, the Claimant disclosed her HIV status to the 3rd Respondent to ensure that this underlying medical condition was considered in her treatment. The Claimant also informed the 3rd Respondent that she was on ARVs which she was supplied by Getrude’s Hospital, her primary hospital for HIV treatment, although she did nnot know the medication prescribed to her. The 3rd Respondent refereed the Claimant to the sonographer for an ultrasound as part of the diagnostic work-up. The ultrasound confirmed that the Claimant had a viable fetus with a demonstrable heartbeat at 11 weeks with no apparent abnormalities. IN order to control the bleeding, the 3rd Respondent recommended Susten Pessaries and bed rest for the Claimant until her next appointment. The Claimant was advised to visit the 2nd Respondent facility on 16th April 2020.
26. It was RW1’s further observations that when the Claimant returned on 16th April 2020 with the names of the ARVs, she brought samples with her. The Claimant also indicated that she was not bleeding and had no further complaints. The 3rd Respondent then referred the Claimant to the laboratory for a series of tests, which tests are recommended for pregnant women living with HIV. The Claimant returned to the facility on 24th April 2020 and 26th April 2020 with the test results, which indicated that the Claimant and fetus had no abnormal findings. The 3rd Respondent recommended that the Claimant continue with bed rest and scheduled the next appointment for 26th June 2020.
27. RW1 testified that when they received the complaint filed at the KMPDC by the Claimant, the Council required the 1st and 2nd Respondents to supply it with the medical records of the Claimant in order to conduct investigations into the veracity of the Claimant’s claims. It was only at this point that the Claimant’s medical records were shared to the KMPDC outside the Claimant’s primary staff.
28. On cross examination, RW1 confirmed that the 3rd Respondent is a General Practitioner with specialization in occupational therapy. RW1 also explained the various ways in which ARVs can affect fetal growth, which is why it is important for a doctor to establish the correct ARV regime for proper fetal growth.
29. The 3rd Respondent testified that she is an occupational doctor. The 3rd Respondent adopted her statement dated 24th June 2021 as her evidence in chief. Her testimony matched that of RW1, recounting the various visits by the Claimant to the 2nd Respondent facility.
D. Issues for Determination
30. Having read through the pleadings, the written submissions filed by each party, and heard the testimonies herein, we have identified the following as the issues for determination by this Tribunal:
i. Whether there was unlawful disclosure and breach of confidentiality of the Claimant’s status;
ii. Whether the Claimant was discriminated upon based on her status;
iii. Whether the Claimant gave informed consent for the HIV related tests; and
iv. Whether the Claimant is entitled to damages.
E. Legal Analysis
31. We shall address each issue singularly.
i. Whether there was unlawful disclosure and breach of confidentially of the Claimant’s status
32. With respect to this issue, the Claimant submitted that her status was unlawfully revealed and confidentiality breached on several levels. First, the Claimant contended that the 2nd Respondent facility made available a system that could not protect patient records from being viewed by anyone other than the patient’s physician. In so doing, the Claimant’s status could be inferred through her medical records.
33. Secondly, the Claimant submitted that the Respondents, in reply to the complaint lodged at the KMPDC, shared the Claimant’s patient history with the Council without the Claimant’s consent.
34. Thirdly, there was a third party who stamped the documents presented to the KMPDC, which document revealed the Claimant’s status.
35. The Claimant relied on the case of W. A. –vs- Guru Nanak R. S. Hospital & 3 Others eKLR.
36. On their part, the 1st and 2nd Respondent submitted that the Claimant did not call any witnesses to corroborate her claim of unlawful disclosure. By its nature, disclosure entails the revelation or divulgence of one’s status, without consent, to a third party. The 2nd and 3rd Respondent contended that nothing would have been easier than the Claimant calling one of her colleagues to testify that he/she found out about the Claimant’s HIV status from the 1st and 2nd Respondents. They relied on the cases of S.M. –vs- E.N.A  eKLR and J.L.N & 2 Others vs Director of Children Services & 4 Others (PETITION NO. 78 OF 2014) where the Court in finding that the Hospital had not breached the right to privacy held that;
‘’….The right to privacy is not absolute. Implicit in the protection accorded is that information relating to family and private matters must not be “unnecessarily revealed.” Indeed, counsel for the petitioner submitted that there are instances where the right to privacy in respect of the patient/client relationship may be abridged. He cited the case of W v Edgell  1 ALL ER 835 where Lord Bingham set out the principles under which a doctor may disclose the information held in A real and serious risk of danger to the public must be shown for the exception to apply confidence. The principles were as follows;
i. A real and serious risk of danger to the public must be shown for the exception to apply.
ii. Disclosure must be to a person who has legitimate interest to receive the information.
iii. disclosure must be confined to that which is strictly necessary (not necessarily all the details)
37. The 3rd Respondent did not submit on this issue.
38. Section 22 (1)(a) of HIV & AIDS Prevention and Control Act, 2006 (hereinafter HAPCA) provides that no person shall disclose any information concerning the result of an HIV test or any related assessments of that person without the person’s written consent.
39. Section 22 (1)(j) of HAPCA provides that no person shall disclose any information concerning the result of an HIV test or any related assessments of that person except if authorized or required to do so under this Act or under any other written law.
40. The Kenya Medical Practitioners and Dentists Council is established under section 3 of the Medical Practitioners and Dentists Act, Cap 253 of the Laws of Kenya. Section 20 thereof provides for disciplinary proceedings by the Council once a complaint has been lodged by a person dissatisfied with any professional service offered or alleging a breach of standards by a registered or licenced person under the Act. Section 20 (4) provides as follows:
For purposes of proceedings at any inquiry held under this section, the Council may administer oaths, enforce the attendance of witnesses and production of books or documents. (emphasis ours)
41. Rule 8 of the Medical Practitioners and Dentists Board (Disciplinary Proceedings) Rules made under the Act prohibits abuse of professional confidence.
Abuse of Professional Confidence
A practitioner or an institution shall not disclose to a third party information which has been obtained in confidence from a patient or patient’s guarding, where application. The practitioner or institution shall safeguard the confidential information obtained in the cause of practice, teaching, research or other professional duties subject only to such exceptions as are applicable. The following are possible exceptions –
i . The patient or his lawyer may give a valid consent;
ii. Information may be required by law or through a court order;
iii. Public interest may persuade a practitioner that his/her duty to the community overrides the one of the patient;
iv. Information may be given to a relative or appropriate person if in his/her opinion it is undesirable on medical grounds to seek the patient’s consent;
v. In the interest of research and medical education, information may be divulged, but at all times the patient’s name shall not be revealed.
42. In view of the foregoing, it goes without saying that once the Claimant lodged her complaint at the KMPDC and an inquiry began, the Claimant willingly subjected herself and her medical records to any investigation necessary to ascertain the veracity of her claims. The Claimant ought to have known that the moment she lodged the claim alleging mismanagement of her pregnancy, then the Council would be obligated to investigate, and in so doing, analyze of her medical records relating to the pregnancy, in which the Claimant’s status had been indicated.
43. Produced before this Tribunal was a letter dated 2nd November 2020 from KMPDC to the 1st Respondent. We note that in the letter, the 1st Respondent was required to submit several documents by 16th November 2020, including certified and paginated copy of the entire patient’s file. It is also noteworthy that the letter is copied to the Claimant herein with the note, “By copy of this letter, you are hereby notified that investigations have begun.” There is no indication by the Claimant that she wrote to the Council objecting to the production of her entire medical file. Suffice it to say that by her silence, the Claimant consented to the disclosure of all her medical information held by the 1st and 2nd Respondents, including her status.
44. The Claimant has also averred that the 3rd Respondent breached her right to confidentiality by the fact that the reports by Dr. Njuguna E. and the 3rd Respondent dated 12th November 2020 and 16th November 2020, respectively, were not stamped by the 3rd Respondent personally, but by someone else within the facility. The Claimant insinuated that this act meant that the contents of the reports were read by a third party, thus amounting to unlawful disclosure. We find this to be a stretch of the imagination on the part of the Claimant. The same argument would then apply to this very Tribunal, that since documents revealing the Claimant’s status are received by the registry personnel and placed in the respective files for the members of the Tribunal, then the same amounts to unlawful disclosure of the Claimant’s status. It is important to distinguish and appreciate that the 1st and 2nd Respondents are institutions, both of which can only function with the input of human beings. Obviously, personnel must be employed at the 2nd Respondent, including the physicians themselves, in order for the facility to carry out its operations, which included attending to and treating the Claimant. In her assertions of breach of confidentiality, the Claimant has not adduced any evidence to demonstrate that her records were exposed to any unauthorized personnel within the facility or to any third parties outside the facility, save for the KMPDC.
45. The Claimant has submitted that the Respondents disclosed her status to her colleagues, as a result of which, the Claimant that people were treating her differently upon her return to work. No witnesses were called to corroborate this testimony.
46. Indubitably, to prove disclosure one must tender corroborative evidence either in the form of a person who overheard the oral statement being made or by the publication of the said on a platform or a forum that could be easily accessed by a third party. For a claimant to succeed in a claim for disclosure as provided under section 22 of HAPCA, the claimant must provide a witness to corroborate the evidence of disclosure in order to discharge that burden in respect of disclosure.
47. The gist of these words as enunciated in our decision in S. M. –vs- E. N. O., HAT no. 18 of 2018 is that a claimant must call a witness to confirm that, indeed, there was disclosure of the claimant’s status to third parties, including the witness. This witness is a crucial key to the puzzle and assists the Tribunal in piecing together a claimant’s averments and painting the picture of the circumstances under which the disclosure occurred. The witness’s account complements and corroborates that of the claimant.
48. For the above reasons, we find that the Respondents did not breach section 22 (1) and 23 of HAPCA. This limb of the claim fails.
ii. Whether the claimant was discriminated and stigmatized upon based on her status
49. It was the Claimant testimony that she voluntarily disclosed her HIV status to the 3rd Respondent at her initial visit to the 2nd Respondents facility. She did this because she thought that the said information was necessary since she was already on ARVs, expectant and at the same time spotting. The Claimant gave an account on her several visits to the 1st and 2nd Respondent clinic where she was attended by the 3rd Respondent and given subsequent appointments. The Claimant did not plead nor provide evidence that was handled in a manner likely to suggest that she was being discriminated by the Respondents herein. In fact, in the Claimant’s opinion, the only time she felt that she was discriminated against was when she was asked by the 3rd Respondent on the specific type of ARVs drugs she was taking.
50. The Claimant submitted that the 3rd Respondent, rather than referring the Claimant to a specialist, decided to go on a fishing expedition about the Claimant’s status. The Claimant submitted that the fact that the 3rd Respondent made inquiries into her ARV medication was discriminatory since the same had nothing to do with the Claimant’s pregnancy and bleeding.
51. RW1 testified that when an expectant woman attends antenatal clinic, it is crucial for the attending physician to ascertain her HIV status, and if positive, what ARVs have been prescribed. It was her testimony that different ARV regimes have different effects on an unborn baby, and it is for this reason that the 3rd Respondent inquired as to the nature of the drugs the Claimant was taking. Indeed, this fact holds true even if the expectant mother is not HIV positive. It is undisputable that the wellbeing of an expectant woman is critical for the healthy development of her unborn child. Any food or medication ingested by the mother finds its way to the fetus, and thus affects fetal growth. It is not uncommon for a doctor to inquire what medication an expectant woman is taking so as to ascertain the effects on fetal growth. In fact, not doing so would amount to professional negligence on the part of the doctor. The Claimant’s aversion that this amounted to discrimination is, in our view, misplaced and misinformed.
52. The Claimant further averred that upon resumption of duties, she noticed that her colleagues treated her differently, which led to her suspicion that her status had been disclosed. The Claimant did not report these instances to the Human Resource Office. It is notable that the Claimant did not elaborate on how exactly the treatment was different from before. We are of the view that finding that there was differential treatment without any evidence of the same is inviting us to speculate that the said differential treatment was negative and further, that the same was a result of the disclosure of the Claimant’s status and not anything else.
(iii) Whether the Claimant gave informed consent for the HIV related tests
53. It is the Claimant’s submission that the 3rd Respondent did not give sufficient reason and information for ordering the HIV-related tests on the Claimant. The Claimant was under the impression that it was for the health of her unborn baby when consenting to the tests. Therefore, the 3rd Respondent did not have consent for the HIV-related tests and recording the same.
54. The Claimant testified that she voluntarily disclosed her HIV status to the 3rd Respondent on the first visit to 2nd Respondents facility and she was actually on ARVs which she obtains at the Getrude’s Hospital. The Claimant’s status was not in doubt, thus there was no need for a confirmatory test, and none was conducted.
55. In her defence, the 3rd Respondent stated that she ordered a series of tests which are not only important but also necessary for any pregnant woman who is HIV positive in order to prevent and or minimize mother to child transmission and ensure proper fetal development.
56. The Ministry of Health’s Guidelines for Prevention of Mother to Child Transmission (PMTCT) of HIV/AIDS in Kenya (2012) highlights the risk of mother to child transmission at different time periods. It states thus:
In Kenya, an estimated 37,000 to 42,000 infants are infected with HIV annually due to mother-to-child transmission. This can occur in utero, during labour and delivery and through breastfeeding. During pregnancy, about 5 to 8 percent of HIV-exposed babies become infected through transmission across the placenta. Labour and delivery poses the greatest risk for transmission with 10 to 20 percent of exposed infants becoming infected at this time.
57. The same Guidelines, at page 17, elaborate the various risk factors for mother to child transmission of HIV as follows:
Many factors are known or suspected to increase the risk of an HIV infected mother transmitting the virus to her infant. These factors include the HIV viral load in the mother, as well as other maternal, obstetrical, viral and infant factors.
The most significant risk factor appears to be the HIV viral load in the mother, though the other factors may also contribute to increasing an infant’s exposure or susceptibility to acquiring HIV. Some factors may cause a breakdown in the protection offered to the foetus by the placenta, which in normal circumstances would not allow HIV to cross the placenta from mother to foetus. Transmission during labour and delivery occurs when the infant sucks, imbibes or aspirates maternal blood or cervical secretions that contain HIV, or when it has other mucous membrane exposure.
58. Chapter 4 of the said Guidelines addresses the use of ARV drugs in pregnancy for HIV treatment and prevention of Mother to child transmission of HIV infection. The operational guidelines include:
a. All HIV infected pregnant women should be counselled on comprehensive HIV care including use of ARVs for their own health and for Prevention of Mother to Child Transmission;
b. All HIV infected pregnant women should have their HIV disease staged using WHO clinical staging and immunological staging (CD4 count);
c. The women should also be screened and treated for opportunistic infections including tuberculosis;
d. All HIV infected pregnant women should have baseline laboratory and other necessary diagnostic evaluations. These should include routine antenatal care laboratory investigations that are normally done for all pregnant women (haemoglobin, rhesus blood group and ABO typing, VDRL, urine analysis and screening for STI)
59. With respect to the use of ARVs by pregnant women, the Guidelines provide that HIV infected pregnant women already on antiretroviral treatment before becoming pregnant should continue treatment. Regimen substitution may be necessary in some cases. Evaluation for treatment response/failure should be done as soon as feasible.
60. Whereas it may have seemed to the Claimant that the 3rd Respondent was conducting unnecessary, unwarranted medical tests, we can only assume that this was because it was the Claimant’s first pregnancy and thus, she may not have known what to expect when she first visited the 2nd Respondent facility for antenatal care. Indeed, the 3rd Respondent could have done a better job of information the Claimant of what was to be expected, the Government’s Guidelines and that these tests were being not only out of adherence to the Government protocol, but also out of an abundance of caution.
61. From the foregoing, we find that the conduct of the 3rd Respondent was not only necessary but was also done within the limits of the law.
62. Noting the gap in information that is availed to pregnant women at the antenatal clinics, it is time that the Government, through the Ministry of Health and various agencies, conducted proper training and sensitization of the medical personnel at the antenatal facilities, to ensure that all pregnant women are properly informed of the Government Guidelines on HIV and further, on the various processes and procedures that one is to expect as part of antenatal services. It is not safe to assume to every pregnant woman walking into an antenatal facility is fully aware that certain tests must be conducted, or the reason for the conducting these tests. In as much as it is for their own benefit, and the benefit of their unborn child, every pregnant woman has a right to full and proper information about the medical examinations that will be conducted on them, the reason for the said examinations and any other services that they will receive at the antenatal facility.
(iv) Whether the Claimant is entitled to damages
63. Pregnancy is a very emotional and physically trying period for most women. Losing a pregnancy is an emotionally devastating experience for a woman. In that moment of grief, sadness and despair, it is not uncommon to try and find someone or something to blame, in order to make sense of the traumatic experience that the woman has just undergone.
64. It is not lost on us that the Claimant herein great trauma and suffered psychologically. The same was evident even in her demeanor as she testified before this Tribunal. Whereas we empathize with the Claimant, we find that no blame lies on the part of the Respondents for the misfortune that befell the Claimant. It is also for this reason that we feel that despite that it is the general rule that costs ought to follow the cause, the Claimant herein should not have to suffer any more than she already has by paying costs herein.
65. As our parting shot, we would like to encourage the Claimant to seek some counselling in order to be able to deal with this grief. This is definitely not a journey of recovery that the Claimant can face alone.
66. Having considered the pleadings, evidence on record and analyzed all the issues, it is the finding of this Tribunal that the Claimant has not proved her claim to the requisite standard and hence, failed to discharge her burden of proof.
67. This cause is, therefore, dismissed. Each party shall bear their own costs.
DATED AT NAIROBI THIS 5TH DAY OF NOVEMBER, 2021
DELIVERED AT NAIROBI THIS 5TH DAY OF NOVEMBER, 2021
Delivered virtually in the presence of:
Mrs. Katee for the Claimant
Ms. Impano for the 1st and 2nd Respondent
Ms. Kagombe h/b Ms. Mwirichia for the 3rd Respondent
Helene Namisi (Chairperson)
Justus T. Somoire
Dr. Maryanne Ndonga