“Where’s my baby?” When mothers take hospitals to court

Musimenta Jennifer has a child, an almost five year-old girl, she named Babirye. Babirye was born on 14th March 2012 at Mulago National Referral Hospital. People ask her why she named her child Babirye – a twin’s name – when she has only one. They don’t remember burying the younger child, nor do they see her grave.

The second child was the subject of a civil suit in the High Court at Kampala. According to the testimonies, Musimenta delivered two babies at Mulago. One weighed 2kgs. The second, she did not expect because she had only one antenatal visit early in pregnancy. And it was never handed to her. 

When she asked for the child, the midwife told her that the baby was born dead.

She was discharged the next day with one baby. At first, the discharge form said she had had only one child. But she contested that, and it was corrected. The body of the baby was handed to her three days later, but it was not her baby. She proved this when she carried out DNA tests.

This is not the first maternal health case before the courts that exposes the weaknesses of the health system. Another, The Center for Health, Human Rights and Development (CEHURD) & 4 Ors v. Nakaseke District Local Administration HCCS No. III of 2012, sued after the loss of a mother and her child. The mother (Nanteza) had been at Nakaseke Hospital in labour and unattended for over 8 hours. Nanteza died, and so did her child.

Even as a ruling was made for Musimenta’s case this January, another mother (Fatuma) was suing Mulago National Referral Hospital in High Court for the disappearance of her baby. After delivery, Fatuma woke up and asked for the baby but there was no baby.

In such cases, mothers do not usually go to court because the economic costs are too high, and the loss too emotional. The postpartum period is already a very stressful time for a woman who has given birth – whether the baby has lived or not – and is only made more difficult in these cases of negligence where a mother’s right to information is denied.

Most of these mothers are also women from the rural areas who cannot afford to travel back and forth for court hearings is insurmountable.

CEHURD appears to be the organization that has dedicated itself to making sure these women attain justice. Stanley Okecho of CEHURD says the recently concluded case, The Center for Health, Human Rights and Development (CEHURD) & 2 Ors v. The Executive Director, Mulago National Referral Hospital & Attorney General HCCS No. 212 of 2013 was forwarded to the organization by the Human Rights Commission.

Babirye will be celebrating her fifth birthday this month, on 14 March. She is too young to ask questions about the sibling with whom she shared a womb, but this year, her birthday will be different. It will hopefully be the beginning of healing for her parents who have sought justice for their loss for the last four years.

On 24 January, court awarded Shs 85,000,000 to Babirye’s parents. In her ruling, Justice Lydia Mugambe said “in determining the amount to be awarded as general damages, I am alive to the psychological torture suffered by the [parents] for the failure to be availed the body of their baby, the failure to have a decent burial for their baby, the failure to have closure in respect of their dead baby and the violation of their right to health and access to information.”

But this is not just a case of negligence. It is also a case of an overburdened healthcare system. The midwives are attending to too many patients, and the doctors are delivering more babies than they should.

Despite’s the government’s regular refrain of delivering a good healthcare system, mothers and newborn babies continue to die in labour – about 343 mothers per 100,000 births (UNICEF, 2016). According to UNICEF, while Uganda is making progress, it is still one of ten countries that account for nearly 59% of global maternal deaths. It is also impossible to know how many grieving parents are failing to access the bodies of their babies who died in public health facilities. More litigation and the ensuing cost for the government could force authorities to take steps to close some of these loopholes.

In the Nakaseke case, the judge awarded Shs 35,000,000 as general damages. The money, Okecho says, is supposed to have a twofold effect. “It is supposed to be punitive. It is also supposed to make an example of the hospital. For the purposes of Mulago, there are too many people who go through the same routine.”

But damages are not the only thing the judge is ruling on. Mulago hospital was ordered to “take steps to ensure and/or enhance the respect, movement and safety of babies, dead or alive, in its facilities.” For the next two years, the hospital’s Executive Director has to make written reports, every four months, on the movement and safety of babies, and submit them to CEHURD.

The judge also granted CEHURD “free access to Mulago hospital and continuously oversee the implementation of [these] measures … and make counter reports on their effectiveness or otherwise within two months from the date of receipt of the [Mulago] reports.”

Nakaseke Local Government Hospital has reportedly improved. It has dealt with its staff burden, started offering food and porridge to patients, and improved staff attendance. It remains to be seen what will change at Mulago.

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