Vehicle to medical malpractice and negligence

BY: Owusu Nyarko
 The writer
The writer

Due to advances in research, health care has evolved and improved from the old age system of monopoly in a particular field.

The age old system of monopoly was characterised by poor treatement and services of a particular health practitioner or health facility, the lack of conformity to standards, life threatening services and practices, with patients and families having no option or choice but to patronise, due to a shortage of those particular skilled labour or expertise and their facilities.

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That often worsened the recovery of patients, worried their hearts and minds and caused adverse effects on their health, prolonging their recovery and well-being, due to the chronic conduct of professionals or the facilities visited.

This is what I refer to as the lanquarism syndrome. Some health officers and practitioners rely on the fact that they are an essential service to abuse the rights of patients and their families, to refuse them the optimum care, especially when standards are compromised and patients start to probe or complain.

Although the care may fall short of accepted standards, these professionals see themselves as lords and do what they think is right.


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Patients and their families become vulnerable with no other choice than to still plead and avail themselves of the services and conduct of these practitioners or facilities (what I have defined as the lanquarism syndrome).

Negligence is a failure on the part of one person to take reasonable care, which causes foreseeable damage to another. In law, not every act of carelessness that causes harm will give rise to a successful claim in negligence.

Principle

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For a patient to establish in court that a doctor has been negligent in the care provided to him, he or she must establish at least three things.

By the same token, to successfully defend, the doctor or health personnel must refute at least one of these three.

Once the patient has successfully established these three things, he is entitled by law to monetary compensation, which is supposed to place him as far as is possible, back to the position that he would have been in if the negligence had not occurred.

The courts often rely on medical experts and reports from other experts to guide them in reaching a better judgement on cases, as most judges find it difficult to make best professional judgements about the practices of highly skilled professions such as medical/dental practice, allied health sciences, engineering, pharmacy practice, optometry, architecture, actuarial sciences, accounting, etc. 

The three things that the patient needs to establish are: (1) That the healthcare provider owed him a duty of care; (2) that the duty of care owed him was breached by the doctor or health personnel  and (3) he suffered harm as a result of the breach of the duty of care by the practitioner (also referred to as causation).

Duty of care

The duty of care is said to have been breached if the standard of care provided by the practitioner falls below that expected of him or her by law.

To establish that a breach of duty of care has occurred, most courts in the world, including those in Ghana, use a principle established in a case brought by Mr Bolam against the Friern Hospital Management Committee in the United Kingdom in 1957.

This principle has become known as the ‘Bolam principle’ or ‘Bolam test’. In essence, the Bolam principle, is that, “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by other responsible or reasonable body of doctors.”

That is, as long as a doctor’s practice is endorsed by other responsible doctors, he or she will not breach his or her duty of care.

Case

In Asantekramo, alias Kumah v. Attorney–General [1975] 1 GLR 319, as reported in the Ghana Law Reports (GLR) and decided by the High Court Kumasi in 1975, is well-known among lawyers in Ghana.

For doctors, especially and other healthcare workers, it should be of great interest because it is one of the very few medical negligence cases, which has been decided by Ghanaian courts and officially reported.

Of course, many cases have gone to the Medical and Dental Council and other professional regulatory bodies; court cases are essential because they establish legal precedent, which is used to decide future cases and help develop the law in the particular field.

In the case of Asantekramo, it would appear that failure of the hospital to adequately defend itself may have contributed to judgement being given against it.

Of course, this opinion is based solely on the reading of the case as reported in the GLRs and there may have been other factors considered and not mentioned, which may have influenced the case ending the way it did.

It would also appear that the judge made certain incorrect interpretations of the medical facts that led to the judgement he gave and this may also be a result of the hospital failing to put up a good defence.

When a patient is injured in the course of clinical care, is it necessarily and automatically to be regarded as negligence on the part of the healthcare team? A big no and obviously not, because certain medical and surgical procedures carry certain known and inherent risks, even when performed under the best of conditions by the most experienced personnel, can still end up with complications.

It is also clear that the state of the patient may also contribute to the risk of the procedure or treatment ending up with complications.

Recommendation

A thorough study about cases of medical negligence or malpractice clearly shows there is a thick line of the understanding of medical procedures to the legal profession (magistrates, judges, lawyers) and law enforcement agencies.

Likewise, is how medical doctors and other health scientists, who are believed to be few of the highest trained professionals in the world, understand the basics of law on malpractice, negligence and other court proceedings.

 

The co writer is a holder of BSc, MHCM, MBA; and a senior health practitioner, South Patasi Hospital, Kumasi. 

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