When Peterson Mwangi underwent a vasectomy at a city hospital in June 2012, he believed he had undergone permanent sterilisation.
The procedure was carried out at Marie Stopes clinic on Ngong Road, Nairobi. At the time, he said, the hospital was offering free family planning services.
But two months later, the casual labourer living in Kayole was surprised when his wife became pregnant. Feeling aggrieved, Mr Mwangi sued the medical facility for compensation. He was seeking Sh5 million as general damages for mental anguish, distress and emotional stress caused by two unplanned pregnancies leading to the birth of a fourth child and a miscarriage.
He also claimed Sh6,480,000 for the cost of bringing up the unplanned child from birth to the age of 18, calculated at Sh30,000 per month for the 18 years. He said the monthly sum was due to massive economic inflation exacerbated by the Covid-19 pandemic.
Mr Mwangi alleged that the vasectomy was performed negligently and as a result he suffered loss and damage as his wife became pregnant and he now has the additional burden and cost of raising a fourth child that they did not plan for. He accused the hospital of failing to exercise due care and diligence in carrying out the vasectomy.
The court heard that the consent form signed by Mr Mwangi indicated that the sterilisation would take three months to become fully effective. Mr Mwangi and his wife told the court that they were advised to use contraception for the first three months after the procedure, and even though they complied, his wife became pregnant in September 2012.
In asking the court to award him damages, Mr Mwangi said he decided to have a vasectomy because he already had three children and it would be difficult for him to raise another.
But the court said that Mr Mwangi had failed to prove the alleged medical negligence and that the hospital had not breached its duty of care to the patient during the vasectomy.
The court found that the hospital could not be held negligent for a vasectomy that the patient consented to in the full knowledge that its success was not 100 per cent guaranteed.
“Having carefully analysed the evidence on the record, the court is not satisfied that there was any breach of duty on the part of the hospital. Mr Mwangi admitted that he signed a consent form before the procedure was carried out,” said Justice Janet Mulwa. She noted that although Mr Mwangi denied being counselled before the procedure, the consent form clearly stated that he had been duly counselled by a nurse called Faith, who also affixed her signature to the document.
“From the terms of the consent form, it is clear that by signing the said form, Mr Mwangi understood that there were chances that the procedure might fail as its success was not 100 per cent guaranteed,” said Justice Mulwa.
On Mr Mwangi’s denial that he was advised to return to the hospital’s clinic three months after the vasectomy to undergo a semen analysis to ascertain whether the operation was successful, the court found that the after-service card issued to him showed that he visited the clinic on June 8, 2012 but did not indicate when he was required to return for verification. The judge said the hospital did not provide any alternative evidence to prove that Mr Mwangi was supposed to return to the clinic after the alleged period.
In his evidence, Mr Mwangi admitted that he should have returned on September 8, 2012 but did not return until May 22, 2013, when he went to find out how his wife could have become pregnant. Mr Mwangi’s wife gave birth on May 30, 2013 and the couple said the baby was born prematurely.
However, the magistrate said no evidence, documentary or otherwise, was produced before the court to prove the allegation. Based on the evidence, the court found that the child’s conception occurred during the three-month window in which the couple were required to avoid unprotected sex.
“In the circumstances, and having regard to the human gestation period of nine months, the court can only conclude that the child was conceived sometime in August 2012. This was only two months after the vasectomy, yet Mr Mwangi and his wife admitted that they were advised to use protection for the first three months after the procedure,” said Justice Mulwa.
“The justification for the three months abstinence from unprotected sex can be derived from the terms of the consent which clearly stated that sterilisation would be achieved after either 21 ejaculations or three months. This was the opinion of a defence witness, a medical doctor specialising in reproductive health and, in particular, a teacher and practitioner of vasectomy procedures. This court cannot ignore the clear expert evidence which was not challenged by any other expert evidence or any other evidence at all,” she added.
Mr Mwangi had urged the court to find that the vasectomy was not performed at all. In urging the court to find the hospital negligent, he said a medical report from the University of Nairobi and his wife’s testimony supported his claim that the vasectomy was a complete failure.
In its defence, the hospital said Mr Mwangi had voluntarily given informed consent to the procedure with full knowledge of the risks involved. It added that there was no evidence that Mr Mwangi had fathered a child after the vasectomy.
The court heard that it is a requirement for a patient who has undergone a vasectomy to undergo a semen analysis test three months after the vasectomy to ascertain the success of the operation, which Mr Mwangi failed to do. He underwent the test on May 22, 2013, a year after.
The hospital stated that there was no negligence on its part, insisting that it was Mr Mwangi who had failed to follow up on the procedure.
