How to Claim Relief for Medical Negligence

The Test for Medical Negligence

The Halsbury’s Laws of England define negligence as a civil wrong that arises from failure to exercise the due care that a specific set of circumstances demand for. The threshold for negligence is subjective and may either arise from an action or omission that breaches the standard of the duty of care owed another person.

There are various tests applied in determining the existences of medical negligence. They are analysed as follows:

1.The Bolam Test

The test was established in 1957 in Bolan v Friern Hospital Management Committee. Bolam Test applies the threshold of a competent medical professional ordinarily skilled and authorized to render the specific medical services. This test concerns itself with what would be ordinarily expected to be done in a particular health care procedure rather than how an expert in the field would have done.

Based on the test, a doctor or other medical practitioner is not liable for negligence where he/she has followed the ordinary procedures and practice laid out for a specific medical procedure. The test has been criticized for focusing more on the opinion of medical experts rather than enforcing patients’ best interests.

2.The Bolitho Test

The test was established in 1998 in Bolitho vs. City and Hacknery Health Authority [1998] AC 232.  The Bolitho test introduced a shift from the general rule created in the Bolam Test. Under the Bolitho test, the Court must be satisfied that opinion by medical experts has a logical basis as to the reasonable standard of care expected from a medical practitioner. The Courts have to be satisfied that the experts have made a comparative analysis of the risks and benefits of the action or omission in contention and have reached a defensible conclusion on whether an alternative option would have mitigated the loss suffered by the patient.

Elements of Medical Negligence

Medical negligence is derived from the general law of tort which mainly focuses on the correlation between duty of care and negligence. The Supreme Court established the key elements of negligence in Kenya Wildlife Service v Rift Valley Agricultural Contractors Limited [2018] eKLR. The elements are as follows:

• The existence duty of care which is established upon the creation of a patient-doctor relationship. This position was reiterated in Ricarda Njoki Wahome (suing as the administrator of the estate of the late Wahome Mutahi (deceased) v Attorney General & 2 others (2015) eKLR. The Court held as follows:

“A duty of care arises once a doctor or other health care professional agrees to diagnose or treat a patient. That professional assumes a duty of care towards that patient.”

• Breach of that duty of care through an action or omission which a reasonably qualified medical practitioner in the specific medical field would have taken or disregarded. The Court clarified what amounts to breach of duty of care in Amisi v Siaya County Referral Hospital & another (Civil Suit 5 of 2019) [2022] KEHC 12117. It held as follows:

“Thus, in medical negligence, a physician has a duty of care and skill which is expected reasonably of a competent practitioner in the same class to which a physician belongs, acting in the same or similar circumstances. When a physician or other medical staff member does not treat a patient with the proper amount of quality care, resulting in serious injury or death, they commit medical negligence.”

• The patient must suffer damage, harm or loss as a result of the medical practitioner’s negligence. In Rothwell v Chemical & Insulating Co. Ltd {2007} the Court held that:

“A claim in tort based on negligence is incomplete without proof of damage.  Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy.  It does not mean simply a physical change, which is consistent with making one better, as is in the case of a successful operation, or with being neutral, having no perceptible effect upon one’s health or capability.”

• There must be a connection between the medical practitioner’s negligence and the loss and/or harm suffered by the patient. This is legally referred to as causation. This connection was addressed in Elijah Ole Kool Vs George Ikonya Thuo [2001] eKLR. The court held as follows:

“When will an act or omission be said to be the cause of the Plaintiff’s injuries? A defendant will only be held liable for negligence if his act or omission is either the sole effective cause of the Plaintiff’s injury or the act or omission is so connected with it as to be a cause materially contributing to it. The first case will rarely raise contentions.”

Some Instances that may lead to a Claim for Medical Negligence

The following are some medical actions that may lead to a claim for medical negligence:

1. Failure to obtain a patient’s informed consent prior to commencement of any medical procedures. Sections 8 and 9 of the Health Act require medical practitioners to inform their patients of the risks and consequences associated to the medical options available for a particular diagnosis. The medical practitioners are also required to obtain the patients’ or their next of kins’ consent save for medical emergencies or instances that pose a risk to the public health.
2. Misdiagnosis or delayed diagnosis of a patient’s health condition.
3. Violation of the patient’s confidentiality or dissemination of the patient’s health information to third parties without obtaining the patient’s express consent.
4. Employment of unqualified medical practitioners to perform medical actions.
5. Prescription and administration of incorrect medications or dosage.
6. Failure to provide adequate post-operative or treatment care.

How to Claim Relief for Medical Negligence

The law provides for two avenues where a patient who has suffered loss and/or harm based on medical negligence may seek relief. The two avenues are discussed as follows:

1. Filing a Complaint with the Kenya Medical Practitioners and Dentist Council

Section 3 of the Medical Practitioners and Dentists Act, Cap 253 of the Laws of Kenya establishes the Council. Among other functions, the Council is responsible for regulation of the conduct of registered medical and dental practitioners and taking disciplinary measures for professional misconduct.

Complaints for medical negligence may be filed with the Ethics and Disciplinary Committee established under Rule 3 of the Medical Practitioners and Dentists (Inquiry and Disciplinary Proceedings) (Procedure) Rules, 2022. A complaint should be accompanied by a statement of particulars setting out the medical practitioner or health institution complained about and the nature of the complaint, and supporting documents. The Committee has the same powers akin to Court powers and may make the following decisions:

• Dismissing the complaint where it the patient has not proved the claim for medical negligence.
• Issue any of the sanctions set out under section 20 of the Act where the medical practitioner is found guilty of professional misconduct.
• Recommend to the Director of Public Prosecutions to initiate criminal proceedings against the medical practitioner is found guilty.
• Make any other orders that it deems relevant.

2. Instituting a Suit in Court to Claim Relief

A patient may institute a suit in court for relief for loss and/or harm arising from medical negligence. The Court to which the patient should institute the suit is determined by the monetary relief the patient claims for the negligence. The following are some of the reliefs that you may seek in court:

• Special damages for the expenses incurred as a result of the medical practitioner’s negligence;
• General damages for the pain and suffering the negligence has caused you;
• Cost to cater for the present and future medical expenses to be incurred by the patient;
• Loss of future earnings, where relevant; and
• Cost of the suit.

Instituting a civil suit is more preferrable for a patient who intends to seek monetary relief for the loss and harm suffered due to the envisaged medical negligence.