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It had been a cold spell season; the day was colder than a witch’s teat when Mr. Bunny (not real name) woke up with throbbing abdominal pain. Poised with his masculine raw ego, not to soldier on was a foul evil to his ancestors, he thought until he couldn’t. At around 3:00 pm, he went to the hospital where he was diagnosed with gallstones in his gallbladder. The doctors recommended surgical removal of the bladder and surgery was timely embarked on. However, during the operation, the surgeon wrongly identified his bile duct structure and removed the upper common structure and the lower structure along with the bladder. To top it all off, a surgical error damaged his liver and another structure causing the bile to leak into his abdomen. After the surgery, Mr. Bunny was sent home. Recovery is what he hoped for, despair is what he braved. While at home, he got a sudden-severe abdominal pain and was rushed to a nearby hospital. At the hospital, he was assured that if he was to live to fight another day, emergency surgery to re-create bile duct structure, using his intestines, and managing the damage was a necessity. Despite the restorative surgery, he now can never perform life duties on his own.
Surely, what Mr. Bunny experienced at the hands of the first hospital is far from bad luck. His was a ball of sheer medical negligence that hit a little too hard. The term medical negligence is used synonymously with medical malpractice. It is a civil wrong (tort) entitling a victim to remedies in courts of law.
This article enlightens on what constitutes medical negligence, patient’s rights in relation to medical negligence, and the liability, and legal remedies attainable in medical negligence claims in Uganda.
Medical negligence emanates from the general domain of the law of negligence that was set forth in the English case of Donoghue Vs Stevenson [1932] UKHL 100, where it was established that one has a legal duty to take reasonable care when relating with people who are so likely to be affected by their acts or omissions, breach or neglect of which gives rise to liability in negligence.
Medical negligence occurs when a medical or health care professional, through a negligent act, omission or failure to act, deviates from a standard of care in the medical profession and causes injury to a patient. It arises from errors, actions, and omissions in diagnosis, treatment or surgery, aftercare, and management of patients by health care providers and health facilities.
In Uganda, the Constitution of the Republic of Uganda, 1995 as amended, and the Allied health professionals Act cap, 268, the mandated supervisory and regulatory law for medical practice provide for and protect patient’s rights, a segment of human rights that correlate with the sanctity and inviolability of human life. In 2009, the Patients’ Charter (Uganda), was developed to raise the standard of health care, empower patients to responsibly demand good quality health care from health facilities, and inform patients of their entitlement to appropriate health care with regard to its quality assurance based on clinical need.
Noteworthy, every patient has a legal right to appropriate or good quality medical care suitable for his state of health. It is a health care provider’s core obligation to prioritize this right to attain an acceptable outcome for the patient. Nevertheless, common sense dictates that every health care provider verily understands that a patient has not a second life phase.
Undoubtedly, medical negligence undermines the efficacy of patients’ rights. More so, the audacity of Ugandans to demand accurate compliance with their patients’ rights by health care providers is limited by inadequate, lack of in-depth awareness of the rights. This hurdle is akin to a challenge of inequitable access to information on patients’ rights by those in most need. Consequently, victims of medical negligence discreetly bear the pain; blame their financial incapacities on having informed the quality of health care received. Indeed, the Charter’s level of benefit to an ordinary Ugandan is a laughable theme.
In 2019, the Regulatory Officer, Uganda Medical and Dental Practitioners Council (UMDPC) disclosed that there are no specific statistics of medical negligence cases in Uganda. (https://www.independent.co.ug/health-medical-). The vague statistics on medical negligence have reduced the likelihood of efficiently addressing the crisis of medical negligence.
Further, the quasi-disciplinary actions taken by the UMDPC against medical workers, for instance, warning the medical practitioners, putting them on probation, withdrawing their license, and de-registration are a lingering mockery to the victims of medical negligence. Such are incapable of atoning the extent of the medical damage or injuries and their implication on the physical, mental, social, and financial state of the victims and/or their families. This has prompted the medical stakeholders to bow to the fate of aggressive-adversarial court litigation.
In the medical sphere, instances of medical negligence include substandard care, unjustified delay in diagnosis, wrong blood transfusion, improper diagnosis and/or treatment, wrong prescription, diagnosis or treatment by a health care provider outside his area of expertise, lack of proper medical attention while in the health facility’s care, leaving surgical items in a patient’s body after surgery, or using unsterilized or infected instruments on a patient.
In a legal context, for medical negligence to exist and for a claim to be sustained, there should be a health care provider-patient relationship, and a duty of care to a patient, that duty of care must have been breached, and the breach must be the causative factor of the injury to the patient. These legal elements are highlighted as follows;
i. Duty of care
The duty of care entails taking reasonable care or steps to prevent or not to cause injury or loss to a patient, who is a person under medical or psychiatric care, attention, or treatment. It is a legal obligation bestowed on a medical worker to contemplate the foreseeable likelihood that his or her actions could result in harm to a patient, because the relationship or proximity for such harm to occur exists, and avoid the harm. According to the case of Kabiito Vs Attorney General & 2 Ors [2019] UGHCCD 197, which involved a claim of negligence that caused the maternal death of a patient under labor,
“ there exists a duty of care between the patient and a doctor, hospital or health provider, and once that relationhip is established, then the doctor has a fourfold duty. A party who holds himself as ready to give medical advice or treatment impliedly undertakes that he is possessed of skills and knowledge for the purpose and such person whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment and a duty of care in his administration of a treatment.”
ii. Breach of duty of care
For an act to be a breach of the duty of care and to amount to actionable medical negligence, it must be inconsistent with the standard of care and the practice accepted and recognized by the profession in a specific jurisdiction. This position was upheld by court in the case of Kimosho Vs Wakapita & 2 Ors [2018] UGHCCD 71 when it held that,
“to establish liability of a health worker, it must be shown that there was a deviation from the normal practice, that the worker has not adopted the practice and that the course adopted by the health worker is one that no professional ordinary skilled person would have taken”
The breach of the duty of care by a medical worker occurs when he/she falls short of the standard of a reasonable medical worker. The standard of care within the medical realm introduces a question of whether a proficient and competent medical worker, under similar circumstances, would have caused the alleged medical negligent act being complained of. The above case of Kimosho Vs Wakapita & 2 Ors (Supra) re-echoed this position when court emphasized that,
“With respect to medical negligence, the duty to take care is at the level of following standard practice and procedures and what a reasonable ordinary medical professional would have done and failure to do so may impute professional negligence..
With medical negligence, the standard of care is assessed at the level of an ordinary skilled medical worker. Such an assessment was well expounded on in the High Court case of Kabiito Vs Attorney General & 2 Ors (supra) where Court found that,
“the standard of care in medical negligence differs from that of ordinary cases of negligence. If a professional man possesses an art, he must reasonably be skilled in it. He must also be careful but the standard of care, which the law requires, is not insurance against accidental slips..in medical negligence, the burden is to prove that the damage was caused by negligence and was not a question of misadventure, and that burden must be discharged on a preponderance of evidence. In medical cases, the fact that something has gone wrong is not itself evidence of negligence. The tests used to establish whether there was medical negligence or not is not a test of the man on top of the clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill and the true test of establishing negligence and treatment on the part of the doctor is whether he has been proved to have been guilty of such failure as no doctor of ordinary skill would be guilty of it acting within ordinary care ..”
iii. Injury/damage as a result of the breach of the duty of care
Relatedly, if there has been a breach of duty of care by a medical worker, the patient must have suffered injury, damage, death, or hardship as a result of the negligent act for a claim of medical negligence to effectively suffice in court.
This is because, in medical negligence, a fault perspective is the legal concept on which cases of malpractice hinge. This signifies that legal causation and injury/damage must exist before medical negligence will give rise to a medical negligence/malpractice case. A negligent act alone is insufficient to constitute a valid claim; the negligence must be the cause of the harm to a patient.
Impliedly, there could be a deviation from the appropriate medical standard of care in handling a patient and a breach of duty of care by a medical worker, but if the patient, his or her health is not impacted, that negligence will not lead to actionable medical negligence or a viable medical malpractice court case. The negligent act becomes medical negligence when it harms the patient’s medical condition/state; injury to the patient; makes the patient’s condition worse, causes unreasonable and unexpected complications, death or necessitates additional medical treatment, or causes the patient to incur more financial expenses to manage the injury occasioned by the negligence.
Liability
Liability is the state of being legally responsible for something as a result of a breach of duty or an infringement of a right of another.
In cases of medical negligence, both the medical worker and the health facility are legally responsible for the negligent act. The practitioner is liable as the instigator of the negligent act while the health facility is liable as an employer of the medical worker.
The liability of a health facility falls under the concept of vicarious liability. Vicarious liability is a legal notion invoked to impose strict liability on a person or entity which does not have primary liability; not directly the cause of the wrongful action. Vicarious liability compels a person to be responsible for the actions of another if they are in a special relationship with the other person, such as an employer-employee relationship, if the actions were actualized in the course of employment.
Therefore, in cases of medical negligence, employers such as private health facilities and the government, through the Attorney general, for government health facilities are legally responsible for the negligent acts and wrongs of medical workers as their employees if they were acting in the course of their employment. The High Court in the Kimosho Vs Wakapita & 2 Ors (Supra) assented to this position when it noted that,
“In all cases of breach of duty or professional duty by an employee committed during the course of employment, the employer is vicariously liable…a hospital is liable for the acts of its staff where they are negligent …”
Legal remedies
A legal remedy refers to the means of enforcing a right or obtaining redress for wrong from a court of law. In medical negligence claims, the remedies include;
a) Damages
Damages refer to a sum of money that the law quantifies and imposes as compensation to a person for loss or injury caused by another as a result of a breach of a duty or a violation of a right.
The principle that governs the award of damages in torts such as medical negligence is that the victim should be put in a position he or she would have been had the tort not been committed. The damages are;
I. general damages
General damages are awarded be to atone for the loss of dependency if the suit is brought by dependents of the victim under the miscellaneous law reform Act for the unlawful death of the medical negligence victim, or any health, bodily or physical consequence of the medical negligence on the victim.
General damages are also awarded as compensation for the pain, suffering, mental and psychological impact and any inconvenience occasioned by the negligent act.
II. Special damages
These are a sum-certain type of damages that recoverable upon proof and are awarded to compensate for any actual medical and funeral expenses, in case of death of the victim, incurred.
To qualify for special damages, there is a need to give the particulars and specific amounts of such expenses and to prove them, most feasibly, by documentary evidence. In absence of such, the victims must be able to prove that the expenses or loss incurred was either a direct or an implied consequence of the negligent act or omission, and any further consequences as would be reasonably contemplated.
b) costs of litigation
This refers to a monetary award granted by court requiring a party to pay to another party (the successful party) the expenses incurred in prosecuting the court case.
Conclusion
The prevalence of medical negligence in Uganda is no longer a mystery. Its correlation with the deficiency in medical professionalism is evident in both public and private health facilities. What remains unclear is how the ignorant victims of the negligence attain seemingly deserving redress against its perpetrators. The trivialities of administrative remedies by the medical council compel the victims and/or their families to implore court litigation and face its destructive emotional impact. To sustain a medical negligence case and attain remedies, the elements discussed above must exist.
The Author is a Law Practitioner/Advocate with M/S M. Mugimba & Co. Advocates. For comments and inquiries, contact her at [email protected] or Mob: +256 771 478 596.
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