MEDICAL NEGLIGENCE: WHEN CAN A DOCTOR OR HOSPITAL BE HELD LIABLE?

 

Have you or a loved one ever suffered due to a doctor’s mistake? Medical negligence is a growing concern in Kenya, with numerous complaints filed with the Kenya Medical Practitioners and Dentists Council (KMPDC) each year. While exact figures remain unclear, reports indicate a rising trend in malpractice cases. Medical negligence occurs when a healthcare professional, expected to uphold a high standard of care, fails to do so resulting in harm to the patient. This includes misdiagnosis, surgical errors, and medication mistakes, all of which can have devastating consequences. 

In this blog, I will explain medical negligence as a tort in Kenya, the essential elements required to prove it and key cases that have shaped negligence as a tort law in Kenya. 

In Kenya, medical negligence falls under the broader category of tort law, specifically within the tort of negligence. A tort is a civil wrong that causes harm or loss, leading to legal liability

ESSENTIAL ELEMENTS OF MEDICAL NEGLIGENCE 

Judges towards the end of the 18th century established the principle that defendants in certain specific situations might be considered liable for their careless act when they caused foreseeable loss or injury to a claimant. Negligence would be proved by satisfying a 3-part test:

• The existence of a duty of care owed to the claimant by the defendant
• A breach of duty by falling below the appropriate standard of care.
• A damage caused by the defendant’s breach of duty that was a direct and foreseeable result of the breach

1. DUTY OF CARE 

 The method of determining the existence of a duty of care is the so called "neighbor principle" The court developed a three-part test to determine when a duty of care should be imposed." That is:

• It should be considered whether the consequences of the defendant's behavior were reasonably foreseeable
• The court should have considered whether there is a sufficient relationship of proximity (legal closeness) between the parties for a duty of care to be imposed
• The court should ask the question whether or not it is fair, just and reasonable in all circumstances to impose a duty of care

In the case of Donoghue v Stevenson, Mrs. Donoghue consumed a bottle of ginger beer purchased by a friend. Unknown to her, the bottle contained a decomposed snail, causing her illness. Since she had no direct contract with the manufacturer, she sued for negligence. The House of Lords ruled that manufacturers owe a duty of care to consumers, even in the absence of a contract. Lord Atkin introduced the "neighbor principle," stating that one must take reasonable care to avoid acts or omissions that could foreseeably harm others. This case laid the foundation for negligence liability in common law jurisdictions, including Kenya. In medical negligence cases, proving a duty of care is often straightforward since doctors automatically owe this duty to their patients. For example, a doctor treating a patient for a heart condition has a duty of care to properly diagnose the issue, prescribe the correct medication, and provide appropriate treatment.

         2. BREACH OF DUTY

Negligence occurs when a person owing a duty of care to another person breaches that duty and causes damage which is not too remote a consequence of the breach of duty. Breach of duty actually refers to the standard of care that is appropriate to the duty owed. A breach of duty simply occurs when the party owing the particular duty falls below the standard of behavior that is required by the duty in question. For example, a supermarket has a duty of care to keep customers safe. If staff mop the floor but fail to put up a "Wet Floor" sign, causing a customer to slip and get injured, this is a breach of duty.

The standard of care appropriate to professionals then is not judged according to the reasonable man test, so his actions are not compared with those of the man on the 'Calpham omnibus' (reasonable person), rather they are compared against the accepted standards of members of their own profession. In other words, a doctor will be considered negligent when he has failed to act in a way that would be accepted as being appropriate by a 'competent body of medical opinion' 

In the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, Mr Bolam suffered from depression and entered hospital to undergo electro-convulsive therapy. The practice, as the name suggests, causes possibly quite severe muscular spasms. The doctor giving the treatment failed to provide either relaxant drugs or any means of restraint during the treatment. The claimant suffered a fractured pelvis and the question for the court was whether there was negligence in the practice of providing neither restraint nor relaxants. The court received evidence that a number of different practitioners carrying out the type of treatment took different views on the use of restraints or relaxant drugs. McNair J established the standard of care appropriate to doctors as ‘the standard of the ordinary skilled man exercising and professing to have that special skill’. Since there were doctors who would have carried out the therapy in the same manner the doctor here had acted in accordance with a competent body of medical opinion and there could be no negligence

        3. CAUSATION  

Once the claimant has shown the existence of duty of care and proved that it has been breached by falling below the appropriate standard of care, he must still prove that the defendant's negligent act or omission actually caused the damage. To establish negligence, the court must assess causation in two ways:

• Causation in fact (But for test)- the court asks whether the claimant's damage would have occurred but for the defendant's negligent act or omission. If the harm occurred because of the defendant's actions, they are considered a factual cause. For example, a doctor fails to administer oxygen to a newborn with breathing difficulties, leading to permanent brain damage. Had the oxygen been provided, the baby would have been fine. "But for" the doctor's negligence, the injury would not have occurred.
• Causation in law (Remoteness of damage)- even if factual causation is proven, the damage must also be legally proximate. This means the harm must not be too remote or unforeseeable. The defendant is only liable for consequences that are reasonably predictable. For example, a doctor prescribes a common antibiotic, but the patient suffers a rare and severe allergic reaction. Since the reaction was not foreseeable and is not a common risk, the doctor may not be held liable
  

In conclusion, medical negligence is a serious issue that can have life-altering consequences for patients and their families. Establishing liability requires proving that a healthcare provider owed a duty of care, breached that duty, and directly caused harm to the patient. The law recognizes that medical professionals are held to a higher standard, but not every mistake amounts to negligence. If you believe you or a loved one has suffered due to medical malpractice, it is important to seek legal advice, gather medical records, and consult experts to determine the strength of your case. Holding medical practitioners accountable not only ensures justice for victims but also helps improve healthcare standards for everyone. 

Disclaimer- The information provided is for general informational purposes only and should not be considered as professional advice. Please consult a qualified professional for specific guidance. 

 REFERENCES   

Turner, Chris. Unlocking Torts. Routledge, 2014