They say literature depicts the character of a society; that it is a social tool, which, in literal realism, portrays the faithful reality in a society. Consider Ngugi wa Thiong’o’s “The River Between” on colonialism, Henrik Ibsen’s “An Enemy Of The People” on hypocrisy of the Victorian morality, Velma Pollard’s “Homestretch” on the life of the average Jamaican girl, who feels “spat” out by society, and “Mayai Waziri wa Maradhi na Hadithi Nyingine”, which will be the focus of my article.
In “Mayai Waziri wa Maradhi” (Minister of Diseases), the short story “Msamaria Mwema” (A Good Samaritan) highlights medical negligence. Wamitila KW gives a story of a man, Likono, who is hit by a “Nissan Prado” near Nyayo playground. The driver a rich man, reluctantly agrees to take him hospital by putting him in the back seat, as his dog occupies the co- driver’s seat. He takes him to a high-end facility, Gipfel Hospital. Upon arrival, the doctors give their prognosis: he requires leg surgery. They, however, refuse to treat him until he can make a Sh10,000 deposit.
The driver pretends to go find some money but takes off. A doctor (Good Samaritan) at Gipfel offers to take him to Kenyatta Hospital, where it takes at least an hour to see the doctor. The doctor there tells him that he doesn’t require surgery, and that a plaster will suffice. Upon his recovery, he cannot get his job back; he has been fired.
The setting of this story is clearly Kenya. In most hospitals, doctors will not treat you because you do not have money. They could also misdiagnose you.
Most students of medicine, upon graduation, swear to some oath or another, both as a commitment to the tenets and ethics of their profession, and as a reminder of the nature of their career. Invariably, the commonest of these vows is the Hippocratic Oath, which they swear to as a commitment to live by the ideal conduct of a physician. The modern version of the Oath of Hippocrates can be summarised thus:“…a solemn promise of beneficence (to do good and to avoid evil) and non-malfeasance (to do no harm) towards patients; not to assist suicide or abortion; to leave surgery to surgeons; not to harm, especially not to seduce patients; to maintain confidentiality and never to gossip.” (Online sources)While medical practitioners are not bound by this oath, the degeneration of medical ethics has gone beyond unacceptable and sunk into callousness.
Last month, Kenyans were horrified to read about the ordeal of a critically injured Alex Madaga, who was hit by a speeding car along Waiyaki Way. Madaga was taken to Kikuyu Mission hospital, but was immediately referred to Kenyatta National Hospital owing to an injury in his brain. KNH could not admit or tend to him because they did not have an empty bed in their intensive care unit.
According to paramedics, who attended to Madaga, the patient spent 18 hours in the ambulance until their oxygen supply ran out, and they had to rush back to Kikuyu Mission Hospital to replenish after driving all over the city in search of a hospital that could take him in. At the Coptic Hospital along Ngong Road, the Nairobi Women’s Hospital at Adam’s Arcade and Ladnan Hospital, Pangani, the traumatised wife of Madaga was asked to make a Sh200,000 advance payment before he could be admitted.
The following day, 18 hours after the accident, Madaga was finally admitted at around 5 p.m., and even then only because the victim’s cousin, a lawyer, complained about the disregard for the victim’s life. He died shortly afterwards.
In August last year, Nicolet Nyaboe was in an accident along the Eastern bypass. Both her arms were broken, and she suffered injuries to her face and head. She was taken to a popular private hospital in south B where she waited for close to two hours for treatment. Drifting in and out of consciousness, Nicolet, a trained nurse, variously asked a passing medic to put her arm in a sling, administer a painkiller injection and shift her weight to ease her pain. She, too, could not be treated as she could not raise the Sh110,000 the hospital was asking for as deposit. Eventually, she managed to call her colleagues to come pick her and transfer to a different facility, but before they raised Sh15,000 for the “time and resources spent at the hospital”.
In September last year, Kabete Officer Commanding Station Julius Lingole was shot in the hip by thugs as he attempted to foil a robbery. He called his colleagues who took him to The Nairobi Hospital, where they were asked to pay Sh100,000 before he could be treated. At the time, Nairobi Police Chief Benson Kibui threatened to sue the Hospital for failing to accord Lingole timely treatment.
These examples do not begin to exhaust the instances Kenyans in need of emergency treatment who have been turned away from hospitals because they cannot afford the cost of treatment. There are many more where patients are given what can only be described as mediocre care – particularly involving pregnant and new mothers – harassed or swindled.
The sad circumstance is that when most doctors see patients, they see money. A few days before Philomena Thiga gave birth, her doctor recommended that she underwent a Caesarean Section because the foetus was in breech position – she was shown scans to prove that position. Fearing the worst, she quickly agreed to come in the following day. When she got to the hospital, she had already gone into labour and just as the anaesthetic was about to be administered, she delivered a normal, healthy baby. Of course, from then on, she couldn’t find the doctor.
When it comes to paying bills during discharge or at the end of a consultation, patients usually are given inflated bills, especially so if they are paying using insurance. Abdi Ismail’s son was admitted with an acute case of typhoid at a private facility in Nairobi West. On being discharged after six days, Ismail was presented with a Sh214,000 bill.
What caught his eye was not so much the amount but the number of entries that the consultant doctor had reportedly seen his son. While the report indicated nine, his son had been seen just three times. When he took it up with the cashier, he was informed the bill was final. He demanded to see a breakdown that included signed copies of doctor attendance sheets and threatened to sue the hospital otherwise. Realising he was causing a scene, his bill was hastily revised to Sh97,000.
But the erosion of medical ethics is not just about being poor. It turns out one can still have money and still not get treatment as was in the case of Godwin Manasseh, who was critically injured and taken to a hospital in South B. He died on a trolley bed in the waiting room while waiting to be attended because he could not pay a deposit. His mother, a doctor herself, on learning about her son’s accident, called and pleaded with the hospital to begin treatment as she travelled from Nakuru to come and pay the money. Empathetic friends in the city rushed to the hospital to deposit some of the money required but were too late. Ironically, her son had medical insurance – his insurance card was in his wallet – but he was unconscious and this fact couldn’t be established.
Where does this leave us?
Doctors, granted, have every right to charge whatever they want on any medical procedure; theirs is a unique set of skills, acquired through years of study and practice. But when this freedom becomes an obstacle to the right to life, then we must begin to question its enjoyment.
Suzan Kihika, a mother of one, used to take her baby to clinic in Nairobi’s Lavington area where, she notes the consultation fees and service costs suddenly jumped when she acquired medical insurance. It didn’t bother her much – after all, she wasn’t paying from her pocket. One day she asked her help to take the baby for her as she had an appointment to keep. It was a routine check. Her help called to say the baby had been admitted for a few hours. She arrived at the hospital breathless to find her daughter playing, but on a drip. By way of explanation, the doctor told her it was a precautionary measure for some vague condition.
Patients place a great deal of trust in their caregivers. When doctors communicate with them, they are supposed to do so in an honest manner – this is important way to foster trust and show respect for the patient. If patients discover or perceive a lack of honesty by their doctor, they may feel, rightly so, that their trust is misplaced. Yet there are situations in which patients are given wrong diagnoses – deliberately or by genuine error – and continue to be treated for years for conditions they do not have.
Josephine Kiptiness consulted a doctor because she was fatigued, had shortness of breath, chest pains, experienced passing out episodes, dizziness and oedema. After a series of tests, she was informed she had congenital heart disease. Naturally, she was devastated. She began treatment that went on for a whole year.
At some point, owing to the stress associated with the diagnosis and treatment, her husband decided to take her on trip to the US where she saw another doctor. What he told her, after conducting his own tests, shocked her. She was in perfect health, and all he could prescribe were stress-relievers! She shared the new report with her doctor when she returned to the country. She was thoroughly angry with him and had half a mind to sue, but decided against it later after undergoing some counselling.
When they are discovered, disclosure of these errors raises highly charged ethical and legal issues, as they speak directly to a physician’s competence and morality. While doctors correctly perceive an ethical obligation to disclose such error to patient, there are factors, such as the possibility of lawsuits or the danger of being deregistered that makes disclosure unappealing. But is it justifiable to keep mum about potentially harmful medical errors?
The Nairobi Law Monthly spoke to a doctor at the Aga Khan Hospital regarding the prevalence and disclosure of this trend:
“I won’t rule it out – there are a few bad apples and sadists in every profession – but I do not think most doctors would deliberately give a wrong diagnosis for monetary or experimentation purposes. But when it happens as an honest mistake, sometimes a doctor will refer a patient to a different hospital for a correct diagnosis to avoid doing it themselves. And half the time, patients are happy to be given reassuring prognoses, so that they forget about the indiscretions of the first physician,” said the doctor who sought anonymity.
“Mostly though, many doctors who find themselves in such situations will find a clever way to avoid seeing the patient, and make arrangements for a different doctor to make the correct diagnosis. But the bounds of appropriate behaviour are even blurrier for doctors who discover medical errors made by their colleagues, because it is a well-established fact that physicians cover for their colleagues out of the realisation that it could happen to anyone.”
A tort is a civil wrong. The tort of negligence, according to Per Anderson B, in “Blyth v. Birmingham Waterworks Co (1856)”, is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence has three elements; duty of care, breach of duty and damage caused.
Under the duty of care, the plaintiff must prove that the defendant’s acts were reasonably foreseeable, that there was proximity between them (legal relationship), and whether, in the circumstances, it would be fair, just and reasonable that the law should impose a duty. Under breach of duty, the element of standard of care is emphasized – in this case, it is the standard required of medical practitioners. Further, the court considers the degree of risk involved, that is, the likelihood of harm occurring, and the practicability of taking precautions – courts expect people to take only reasonable precautions in guarding against harm to others and the social importance of the risky activity.
On damages caused by the breach of duty, courts consider causation in fact – the claimant must prove that harm would not have occurred “but for” negligence of the defendant. Where there are multiple causes of injury, claimant must prove the defendants’ breach of duty caused harm, or was a material contribution. Courts also consider remoteness of damage; a person is responsible only for consequences that could be reasonably anticipated.
Medical malpractice or negligence refers to the improper, unskilled, act of commission or omission exercised by a health care provider to a patient. A person who alleges medical negligence must prove that a duty of care was owed to them, that the actions of the doctor were reasonably foreseeable, that a legal relationship existed between them and that the defendant did not act in a fair, just and reasonable manner, that the doctor breached his/her duty by acting in violation of the accepted standard, and that the plaintiff suffered injury as a result of it.
Doctors, as professionals, owe a duty of care to those who seek their services, thereby creating a doctor-patient relationship. According to Chapter 5, Section 2 of “The Internal Code Of Medical Ethics Of 1949”, on the code of professionals, conduct and discipline 6th edition; Duties of doctors to the sick; “A doctor must bear in mind the obligation of preserving human life from conception…A doctor owes to his/her patients’ complete loyalty and all the resources of his/her science”
On standard of care, a doctor, as a professional, is expected to exercise the skill, care and diligence reasonably expected of a person of ordinary competence which is measured by the professional standard at the time. In the locus classicus case “Hedley Byrne v Heller, where Hedley Byrne”, the defendants were bankers; they received inquiries indirectly from the plaintiffs (who inquired through their own bank) about whether a certain company had a good credit rating.
The defendant (bank) said that the credit rating was fine, when in fact, it was not. The plaintiff lost €17000 (Sh1.9 million).The court held that when a professional makes a statement within his or her area of expertise and knows that the listener will rely on that statement, if the listener follows the advice and suffers damage, the professional may have to compensate the listener for the damage.
On causation in fact, the negligent act of omission or commission must be attributable to the doctor. Examples of medical malpractices include misdiagnosis, delayed diagnosis, surgical error unnecessary surgery, anaesthesia error, childbirth and labour malpractice, long-term treatment and general medical negligence such as refusing to treat a patient until a monetary deposit is made.
Article 43 of the Constitution on economic and social rights in Clause 1 subsection (a) accords on every person the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care. Article 28 on Human Dignity asserts that every person has inherent dignity and the right to have that dignity respected and protected. Article 27 on Equality and Freedom from Discrimination in Clause 5 asserts that a person shall not discriminate directly or indirectly against another on any of the grounds stipulated in Clause 4 i.e. race, sex, pregnancy ,marital status ,ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. Article 46 Clause 1 on Consumer Rights stipulates that consumers have the right to goods and services of reasonable quality, to information necessary for them to gain full benefit from goods and services, to the protection of their health, safety and economic interests, and to compensation for loss or injury arising from defects in goods or services.
Chapter V of the Geneva Declaration of 1978 requires one to, as a doctor “…solemnly pledge myself to the service of human dignity” and “… practice my profession with conscience and dignity; that the health of my patient will be my first consideration.” Under Section Two of the Internal Code of Medical Ethics, 1949, practitioners pledge that “a doctor must practice his profession uninfluenced by motives of a profit”. On the same, under duty of doctors to the sick, a doctor is obligated to give emergency care as a humanitarian duty unless he or she is assured that others are willing and able to give such care.
Section 7 of the Internal Code of MEdical Ethics further provides, in subsection (a) that practitioners ought to always manage patients irrespective of age, race, colour, gender, religion, social economic status or political affiliations; in sub-section (b) that practitioners shall in all their professional activities respect the dignity of patients and shall strive to preserve and protect the patients fundamental human rights; in sub-section (e) that it is unethical for doctors or health institutions to detain patients for non-payment of fees in case of emergency treatment, and should resort to legal means to recover the fees.
Besides these, the Kenya Doctor Association has encompassed more values: in Section 2, the Principle of Non-maleficence (“do no harm”); in Section 3, the principle of Beneficence (“do good”); in Section 4, the Principle of Fairness, that in treating people their actions shall be without prejudice; in Section 5, the Principle of Veracity (“truthfulness”).
In light of the ethical values, code of conduct and the Hippocratic Oath, what happens to the medical practitioners such that patients can be denied medical treatment because they cannot pay for it? Wamitila is right about us; we are a dystopic society, driven solely by materialism.
As Githui Donatus puts it in his paper, “Ethical Issues In Health Care In Kenya; A Critical Analysis Of Health Stake Holders”, the stability of any nation will depend largely, not on how well citizens adhere to the laws or daily regulations that have been codified, but on morality, value systems and ethics of their daily existence, because every society has values and morals which guide the ways of its members.