Man gets Sh2m for cancer scare after false diagnosis 

On September 9, 2015, Roberto Macri went for general medical consultation at Jamu Imaging Centre, at Oasis Mall in Malindi, Kilifi County.

He wanted to establish why he had difficulty swallowing. An X-ray was recommended.

Mr Macri received an answer that he did not expect. He had oesophageal cancer, and it was in stage four.

Shocked by the medical report, Mr Macri flew to Italy for a second medical test, which was conducted a month later on October 6, 2015 at San Matteo-IRCCS General Hospital. 

He wanted to be sure that he indeed had the deadly disease and that it was in its fourth stage.

But to his surprise, the medical analysis and evaluation was negative. The test also indicated that Mr Macri was not a carrier of the manifested ‘cancer gene’.

He came back to Kenya and sued Jamu Imaging Centre, claiming damages for medical negligence.

In court documents, Mr Macri said the clinic breached the duty of care owed to him by concluding that he was suffering from oesophageal cancer.

He faulted the facility for failing to pursue medical investigations that would have resulted in the correct diagnosis. 

Suffering from cancer

“Had the doctor made the correct diagnosis, the risk of post-examination trauma, panic would have lessened not to resort for a further medical consultation in Italy,” he said.

But Jamu Imaging denied any acts of negligence or omission associated with the results of the X-rays.
“No findings were made within the scope of Mr Macri suffering from cancer," it said in court papers.

Malindi Chief Magistrate Julie Oseko concluded that the standard of care depicted a breach of duty of care and supported the claim of negligence. She awarded Mr Macri Sh3.5 million plus interest.

Jamu Imaging appealed at the High Court in Malindi disputing the judgment and award.

“The magistrate erred in fact in failing to find, as she should have, that the imaging centre (appellant) did not indicate in its examination report dated September 30, 2015 that the plaintiff (Macri) was suffering from cancer,” it said.

It also said the magistrate had incorrectly found that it was negligent despite a peer medical doctor’s report that exonerated it.

It added that no evidence was tendered by any peer medical doctor to show that it was negligent.

“She misdirected herself by failing to fully appreciate and correctly analyse the pleadings and evidence filed before her. She awarded excessive damages to the plaintiff,” it said.

But Mr Macri argued that the false clinical information caused him acute despair, mental distress, anguish, intense psychological trauma, pain and suffering.

Acts of negligence

He also submitted that he suffered insomnia, an acute loss of appetite and loss of amenities.

Justice Reuben Nyakundi of the High Court noted that evidence in the case confirmed that acts of negligence had been committed by the appellant.

"It is impermissible for a medical provider to give a misleading examination report on what may be the symptoms of a patient,” he said.

He also said that the injury suffered by Mr Macri was a foreseeable consequence of the medical practitioner’s negligence.

The court noted that the medical practitioner was deemed to have assumed responsibility for such an outcome and that the trial court’s imposing such liability was not unjust, unfair or disproportionate.

Justice Nyakundi noted that failure to give the respondent true and adequate advice on the merits and demerits of the outcome from the X-rays was an issue relating to a breach of the duty of care.

"The risks and anxiety... which the respondent went through would have been avoided easily and inexpensively if the appellant (had) explained a defendable conclusion from the X-rays on the matter,” the judge said.

He added: “Thus the appellant as the ultimate custodian of the medical examination and diagnosis impliedly misrepresented the nature of the x-rays report,” he said

The judge dismissed the appeal on liability but reduced the damages awarded from Sh3.5 million to Sh2 million.

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