Lanquarism syndrome:Vehicle to medical malpractice and negligence

BY: Owusu Nyarko

Due to advances in research, health care has evolved and improved from old age system of monopoly in a particular field where when treatment and services of a particular health practitioner or health facility is poor, not conforming to national or international standards, life threatening, patients and families get no option or choice than to patronise these services due to shortage of those particular skilled labour or expertise and their facilities.

This lack of will but without any better choice has often worsened recovery of patients, derailed their heart and mind , caused many adverse effects on the health  prolonging patients recovery and well-being due to the chronic conduct of these professionals or the facilities they visit is what the writer(s) call the LANQUARISM SYNDROME.

Some health Officers and Practitioners rely on their essential services to abuse the rights of patients and their families, refuse to 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 since there may be not too many level - headed people in their field of study or practice to challenge their opinions in the community they practice their professions.

 Patients and their families become vulnerable with no other choice than to still plead and avail themselves to the services and chronic conduct of these practitioners or facilities (what the writers define 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 cases harm will give rise to a successful claim in negligence. For a patient to establish to a court that a doctor has been negligent in the care provided to him by the doctor, he 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 most courts often rely on medical experts and reports from other experts to guide them in reaching a better judgment on in-depth cases as most judges find it difficult to make best professional judgments about the practices of highly skilled professions like medical /dental practice, Allied health sciences, engineering, pharmacy practice, optometry, architecture, actuarial sciences, accounting etc.  

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

It is important to note that the occurrence of an adverse outcome alone does not establish that the duty of care has been breached. 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 will not breach his duty of care.

Asantekramo alias Kumah v. Attorney-General Asantekramo, alias Kumah v. Attorney – General [1975] 1 GLR 319 as reported in the Ghana Law Report, a case decided by the High Court Kumasi in 1975 is well known amongst lawyers in Ghana. For doctors especially and other health care 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, Nurses and Midwifery council, Pharmacy Council, commission on human rights and administrative justice (CHRAJ) and other professional regulatory bodies, court cases are essential because they establish legal precedent which is used to decide future cases and they 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 judgment being given against it.

 Of course this opinion is based solely on the reading of the case as reported in the Ghana Law Reports and there may have been other factors considered which were 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 his making the judgment he did and this may also be a result of the hospital failing to put up a good defense.

 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 health care 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.

In the case of Hucks v Cole, an English case decided in 1968 but reported much later in (1993) 4 Med. L.R. 393, the court stated that with the best will in the world, things do sometimes go amiss in surgical operations or medical treatment. So a doctor is not to be held negligent simply because something goes wrong.

Recommendation

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

In spite of this, the writers think in training medical doctors and other health professionals, although doctors study medical jurisprudence, it is not detailed enough to propel them to face issues of malpractices and negligence. The medical jurisprudence course should be revised and expanded to cover most of the basics of tort and criminal law.

Secondly arbiters of law (judges, magistrates, lawyers) should also be given detailed training on the legal aspects of health care and how the complex health system functions.

 The United States has set a precedent where in February 2011 then president Barrack Obamas administration announced a $ 250 million fund in the fiscal year 2012 budget for medical malpractice reforms, with special emphasis on health courts.

 Also special courts like health courts could be set up and judges adjudicating these courts be given continuous professional development courses on the basics of how the health system works to help them work more effectively.

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