Medical Law: Medical Malpractise in Kenya

Medical malpractice is a legal cause of action that occurs when a medical or health care professional deviates from standards in his or her profession, thereby causing injury to a patient.^[1]

Medical malpractice law

In common law jurisdictions, medical malpractice liability is normally based on the laws of negligence.^[2]

Although the laws of medical malpractice differ significantly between nations, as a broad general rule liability follows when a health care practitioner does not show a fair, reasonable and competent degree of skill when providing medical care to a patient.^[2] If a practitioner holds himself out as a specialist a higher degree of skill is required.^[2]Jurisdictions have also been increasingly receptive to claims based on informed consent, raised by patients who allege that they were not adequately informed of the risks of medical procedures before agreeing to treatment.^[2]

As laws vary by jurisdiction, the specific professionals who may be targeted by a medical malpractice action will vary depending upon where the action is filed. Among professionals that may be potentially liable under medical malpractice laws are,

*Medical Practitioners - including physicians, surgeons, psychiatrists and dentists.
*Nurses, nurse practitioners, and physician assistants.
*Allied health professionals - including physiotherapists, osteopaths, chiropractors, podiatrists, occupational therapists, social workers, psychologists, pharmacists, optometrists, midwives, and medical radiation practitioners.

Among the acts or omissions that may potentially support a medical malpractice claim are the failure to properly diagnose a disease or medical condition, the failure to provide appropriate treatment for a medical condition, and unreasonable delay in treating a diagnosed medical condition.^[7] In some jurisdictions a medical malpractice action may be allowed even without a mistake from the doctor, based upon principles of informed consent, where a patient was not informed of possible consequences of a course of treatment and would have declined the medical treatment had proper information been provided in advance.

The medical malpractice claim

The parties

The plaintiff is/ was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful deathsuit – the executor or administrator of a deceased patient's estate.

The defendant is the health care provider. Although a 'health care provider' usually refers to a physician, the term includes any medical care provider.

Elements of the case

A plaintiff must establish all five elements of the tort of negligence for a successful medical malpractice claim.^[11]

*A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
*A duty was breached: the provider failed to conform to the relevant standard care.
*The breach caused an injury: The breach of duty was a direct cause and the proximate cause of the injury.
*Deviation from the accepted standard: It must be shown that the practitioner was acting in a manner which was contrary to the generally accepted standard in his/her profession.
*Further establishment of conditions of intention or malice where applicable.
*Damage: Without damage (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damage can occur without negligence, for example, when someone dies from a fatal disease.

In cases involving suicide, physicians and particularly psychiatrists may be to a different standard than other defendants in a tort claim. In most tort cases, suicide is legally viewed as an act which terminates a chain of causality. Although the defendant may be held negligent for another's suicide, he or she is not responsible for damages which occur after the act. An exception is made for physicians who are found to have committed malpractice that results in a suicide, with damages assessed based on losses that are proved likely to accrue after the act of suicide.

The trial

Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. 

Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories, requests for documents and deposition. If both parties agree, the case may be settled pre-trial on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible.

The fact-finder will render a verdict for the prevailing party. If the plaintiff prevails, the fact-finder will assess damages within the parameters of the judge's instructions. 

Expert testimony

Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set fromlegal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue.^[14]The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. 

Damages

The plaintiff's damages may include compensatory.
Compensatory damages are both economic and non-economic.

*Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses.^[19] These damages may be assessed for past and future losses.
*Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are not available in all states and, when allowed, are usually only awarded in the event of wanton and reckless conduct.