MEDICAL NEGLIGENCE IN KENYA: RETHINKING CIVIL SUIT NO. 34 0F 2015.

MEDICAL NEGLIGENCE IN KENYA

From news exposés, to trending hashtags on social media, it is now common knowledge that medical malpractice is quite a recurrent menace in Kenya. For example, on the 2nd of March, 2018, The Standard Newspaper ran a heartbreaking story with the screaming headline, “KNH on the spot after brain surgery is performed on wrong patient.” Alex Madaga, the ambulance patient, and Thomas Letangule’s wife, are just a few names that could be mentioned regarding medical negligence and malpractice, while many others go unreported. This points to an established system of medical malpractice, that for years has gone unchallenged. Sadly, it is not as established as it should be, both in law, in policy and in practice. The Kenya Medical Practitioners and Dentist Board (KMPDB) was established by law to, among other things, curb this menace by dealing with the professionals who become negligent in their duties.

The Kenya Medical Practitioners and Dentists Board (KMPDB) is the body tasked with the responsibility of holding medical professionals accountable to the highest standards of service. It was established by law to, among other things, curb this menace by dealing with the professionals who become negligent in their duties. However, the unholy alliance between our silence as citizens, the health system and the legal system has seen many cases of medical negligence go unreported. This is a manifestation of the weaknesses of the medical sector in Kenya. The slow responses to cases filed before the KMPDB is indicative of the lethargy that accompanies a real commitment to hold medical professionals ethically accountable. This lethargy has seen many patients end up in the grave earlier than they should have, while others get disabled permanently. Sadly, it seems like the unwritten law in the medical profession is that the mistake of the doctor is buried six feet under, while that of the lawyer is hoisted six feet high.


Unfortunately, the law is inadequate in that it merely focuses on punishing the offenders, and has minimal provisions for ways in which the victim may be compensated or granted legal remedies. In addition, the Kenya Medical Practitioners and Dentists Board, tasked with representing the doctors and dealing with medical malpractice, is marred with conflicts of interest, as it is focused on protecting the practitioners, its own peers, as opposed to the public.

To buttress these issues, we would like to look at a case which did get reported, but, in our considered view, was not resolved satisfactorily.

CIVIL SUIT NO.34 0F 2015: ADVANCING RECOURSE FOR MEDICAL NEGLIGENCE

In this case, a minor, JW, sued the Medical Superintendent of Malindi District Hospital, the Kilifi County Government, and the Kilifi County Secretary. Being a minor, she sued through her mother, LW. She brought this suit in light of the events that took place at Malindi District Hospital, where the minor was admitted on the 27th of November, 2012. In the course of her treatment, an intravenous (IV) line was inserted on her scalp causing some swelling. Upon its removal, she temporarily lost her vision for five days, and a festering wound developed on her scalp, leading to further medical complications. Her parents sought further treatment in various medical facilities, to no avail. This exhausted her parents’ finances, while still causing her a lot of pain and suffering.

The Plaintiff was therefore of the opinion that the employee(s) of Malindi District Hospital who was in charge of taking care of the minor were negligent, in that they failed to take due care and diligence in attending to the minor; they failed to properly administer the IV line; and they failed in their duty to apply proper medical standards in the circumstances. The second and third Defendants were vicariously liable in different capacities.

The defendants filed a joint statement of defense, in which they stated that no negligence ought to be attributed to them. They argued that the injury suffered by the plaintiff was occasioned by, or contributed to by her negligence, recklessness and/or carelessness, by failing to divulge her medical history, and by failing to follow instructions.

After a lengthy Court’s deliberations, the Court found the defendants liable for the injury sustained by the Plaintiff, and awarded general damages of Ksh 500,000. This was because the Plaintiff did not make any proposal concerning the damages to be awarded, and did not plead for any specific sum of money.

CONCLUSION

It is our considered view that, while this court decision was a step in the right direction, in terms of punitive measures, we are still a long way from truly curbing medical negligence. For instance, the amount awarded was quite insufficient, considering the financial burden this negligence must have caused in the family, not to mention the physical and emotional pain and suffering undergone. It also clearly points out the lack of awareness by the public in handling such matters, because had the family pleaded a specific amount of money, it would have been awarded to them.

Accountability for medical malpractice is fundamentally a question of attitude. An attitude that recognizes patients as human beings whose lives matter, and that a mistake is one too many, is required, if issues of medical negligence are to be dealt with extensively.

By: Frank Singoey and Victory Wanjohi If you have any questions or clarifications on the issue of medical negligence, please get in touch with us on info@mmsadvocates.co.ke

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