E.R.O. v. Board of Trustees, Family Planning Association of Kenya

This case summary and analysis was prepared in partnership with the International Reproductive and Sexual Health Law Programme of the University of Toronto and the Centre for Human Rights at the University of Pretoria for Legal Grounds III: Reproductive and Sexual Rights in Sub-Saharan African Courts.

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Summary of Facts
Analysis and Decision

The Plaintiff in this case brought a suit against the defendant, the Board of Trustees for the Family Planning Association of Kenya (FPAK), seeking damages for negligence arising from a tubal ligation procedure performed on her by the defendant’s agents. Prior to the tubal ligation procedure, the Plaintiff was subjected to a pregnancy test using a urine sample to exclude pregnancy. The results were negative. The FPAK staff proceeded with the procedure.

Approximately 9.5 to 10 months following the procedure, the Plaintiff gave birth to a child. This was the basis of the Plaintiff’s allegation that the pregnancy resulted from negligence by the FPAK staff in performing the tubal ligation procedure, and her claim for damages. The Defendant denied her claim.

The petitioner asked the Court 1) Whether the Defendant owed a duty of care to the Plaintiff; 2) Whether the Defendant, through its servants or agents, was negligent in carrying out the procedure on the Plaintiff; and 3) Whether the Plaintiff has suffered injury as a result of the negligence of the Defendant and its staff.

The Court held that the Defendant owed the same duty of care to the Plaintiff as a doctor would owe to a patient, as set out in M (a Minor) v. Amulega & Another [2001] KLR 420. This duty of care is carried out on behalf of the Defendant by its staff and, as such, if the staff is negligent in giving treatment, the Defendant is liable. The Court acknowledged that such negligent acts by staff members would constitute a breach of the Defendant’s duty.

However, the Court held that the Defendant did not breach its duty of care. According to the Court, the evidence weighed in favor of a finding that the Plaintiff was already pregnant at the time of the procedure. While a blood test would have more accurately detected the pregnancy, such testing was prohibitively expensive and essentially unavailable to the Plaintiff.

Accordingly, the Court found that it was reasonable for FPAK staff to rely on the negative urine test results in moving forward with the procedure. The subsequent examination of the Plaintiff’s fallopian tubes, which were completely blocked, indicated a successful procedure and further supported the Court’s holding. Having held that there was no breach of duty of care, the Court did not examine the third issue.