By Daniel Benson Kaaya
There are few things that a patient awaiting treatment fears more than that the intervention, far from improving the condition, will make it worse. Similarly, there are few things that medical professionals fear more than that something will go wrong in their dealings with their patients; leaving a patient harmed. When something goes wrong in the medical context, it seems natural in our society that legal consequences will follow [Jonathan Herring; Medical Law and Ethics, 5th Edition, 2014].
The Judiciary has often had the same menu of cases for years. This suggests that either public awareness of legal matters is below shallow, or the populace just do not care about legal interrogations and incipient provinces of concern. Infrequently, one would hear cases on passing off, infringement of copyrights, consumer related cases and whatnot. However, recently there was a case on medical negligence! The Judge, H P G Waweru, in that case succinctly précised my observation in his first line of judgment: “This is a unique case in our jurisdiction…”
The aforesaid case is the matter of AAA v Registered Trustees – (Aga Khan University Hospital, Nairobi)  eKLR, where the court awarded damages for negligence in administering contraception. The facts are that on July 4, 2011, the Plaintiff consulted the Defendant’s family planning clinic for an appropriate contraceptive method as she did not want to have any more children (she and her husband already had two). She was advised that the insertion of an implant known as Implanon would be the most suitable and appropriate for her, and that the same, if implanted, would protect her from conception for a period of three years from the date of insertion. The Plaintiff further pleaded that she took the advice and that on the same date; the Defendant’s medical staff at the Defendant’s hospital took her through the medical procedure of implanting the Implanon into her left upper inner arm under local anaesthesia. The Plaintiff was, however, unpleasantly surprised when in the month of August 2012, her menses failed and a home pregnancy test came out positive. She visited the Defendant’s hospital on August 10, 2012 where a further pregnancy test confirmed that she was indeed pregnant! Other tests conducted by the Defendant’s medical staff at the hospital confirmed that no had implant had been made after all.
A claim for negligence would only succeed if the Defendant on evidence proved that, at the time of the sterilisation, conception appeared to have already taken place but could not be detected that early by the pre-sterilisation tests then available. It was clear that the Implanon was never implanted and as such could only have been because of negligence of the Defendant’s medical staff in the performance of their duties, therefore the defendant was vicariously liable for that negligence. The court awarded Sh500,000 for pain and loss of amenities and Sh4,320,000 as costs of raising and educating the child.
To quote Judge H.P.G. Waweru, in paragraph 16 of the judgment: “…indeed Kenyan jurisprudence in this area is dearth. The closest case this court is aware of is a case I dealt with, ‘ERO v Board of Trustees Family Planning Association of Kenya, Nairobi HCC No 788 of 2000’”. The interval between these cases is fifteen years! It should not be presumed that between the periods quoted there were no other manifestations like this; it is either the victims do not care or are not cognizant that there is a legal recourse.
Jurisprudence in this domain of law is derisory! Medical science is not stagnant. The evolution in diagnostics, drugs and replacement organs are advancing apace. This should implore the legislators to legislate on these provinces where there is limited substance of both history and law. Since we have demonstrated to be constant and perpetual borrowers of other jurisdictions’ laws, it is not debauched to continue the peerless streak even in this.
Having laws that attend to limitedly explored domains of law is what sometimes gauges the ripeness of any jurisdiction’s legal and jurisprudential mellowness.
There are some stimuli that have incalculably underwritten the negligible or, to be fair, imperceptible increase in medical litigation. There may be an upturn in medical litigation because the public is more informed about legal matters. However, this supposed cognisance of legal staples can only be traced to certain people or class of people: petit bourgeois. Information groups have also contributed to or partially assisted in this rise.
This should be hailed, because medical litigation, according to Jonathan Herring, perform a variety of functions: they ensure that the person injured as a result of negligence receives compensation for any loss; they (where successfully) provide a public statement of the wrongdoing of the professional, thereby providing a way of holding professionals accountable for their actions; and they provide a deterrent against bad medical practice.
The majority of litigation following medical malpractice is brought under the tort of negligence. This is evident in the aforementioned case, where tort law was applied. This particular case speaks to medical negligence – vicarious liability – where the defendant was vicariously liable for the negligence of her medical staff in the performance of their duties.
Therefore, the constituent features of negligence have to be proved on the balance of probabilities if triumph is to be registered – that the professional who is being sued owed the claimant a duty of care, that the professional breached the duty of care, and that the breach of the duty of care caused the claimant loss.
The duty of care is that a professional owes a duty of care to anyone whom he may reasonably and foreseeably injure. A patient claiming against his doctor usually has little difficulty in establishing that the doctor owes him a duty of care (Medicine, Patients and the Law, 2nd Ed.). The House of Lords, in “Caparo Industries v Dickman  2 A.C. 605”, held that development of duty of care must proceed incrementally, on a case-by-case basis, by analogy with previously decided cases. A duty of care would then arise when there was first, foreseeability of damage; second, sufficient proximity between the parties; third, a determination of fairness and reason in imposing duty of care.
This is not a straightforward three-limbed test. In terms of medical negligence the term “duty of care” has become synonymous with the concept of “undertaking” towards the patient. This concept of undertaking and the quintessence of the medical negligence action was effectively put, strangely, in a manslaughter case, “R v Bateman (1925) 94 LJ KB 791”thus: “If a doctor holds himself out as possessing special skill and knowledge, and he is consulted, as possessing such skill and knowledge, by or on behalf of the patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his discretion and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the services be rendered for reward.
In contributing to the intellect of the public, I venture into enlightening on the specific duties of medical care. Inter alia, these include the duty to keep up with professional developments, duty to patients who may harm themselves or others, and duty to inform of adverse results.
Duty to keep up with professional developments: Michael Davies, in his book “Textbook on Medical Law”, 2nd ed., interrogates the obvious question: what is the extent (if one exists at all) of the duty of the doctor to keep up with the professional developments in the field of medicine as a whole, or in a specialist field of medical practice? Denning LJ, in “Crawford v Board of Governors of Charing Cross Hospital (1953)”, felt that it would place intolerable burden on the medical profession if they had to read every article in the medical press.
What is expected is that medical practitioners maintain a reasonable professional standard in their continuing education and take on board those findings and theories that other professionals in the same specialist area would keep abreast. Denning LJ recognised that there may be difficulties of demarcation. When is a theory proved so that it should be adopted, and when is a theory merely a theory? What such a difficulty should not do is deflect attention from the need to maintain level of vigilance commensurate with a professional standard.
Duty to patients who may harm themselves or others: This includes, inter alia patients with suicidal tendencies and psychiatric problems. The patient should be contained in a secure environment. In “Clunis v Camden and Islington Health Authority (1996)”, it was established that there is nothing in principle to exclude liability where a medical practitioner fails properly to treat a mentally disordered patient who subsequently harms himself or others. This could have profound implications for the practice of psychiatric medicine, an area that is fraught with difficulties of accurate diagnosis and subsequent treatment.
Duty to inform of adverse results: Negligence may be purported where there has been a failure to inform the patient of what has gone wrong with treatment, even if the failure is due in a non-negligent cause. In “Gerber v Pines (1934) 79 SJ 13”, the doctor had given the plaintiff a series of injections as a treatment for rheumatism. While giving the last injection, the patient had a muscle spasm in the area of injection and the needle broke.
The doctor found himself unable to get the needle out of the patient’s body. Some days later it was removed by operation. It was found that there had been no negligence in the performance of the injection. The question was whether the doctor should have told the patient of the accident as soon as it occurred.
As a general rule, Du Parcq J found that where there was a foreign substance left in the body of a patient, the doctor had a duty to inform the patient of that fact. His lordship seemed to be prepared to admit exceptions to this general rule. It may be that a doctor would not be under such duty where adverse result is minor can be easily assuaged, and disclosure of it might cause undue anxiety to the patient. Kingsmill Moore J in “Daniels v Heskin  IR 73” reasoned that all depends on circumstances – character of the patient, health, social position, intelligence, nature of the tissue in which the needle is embedded, the possibility of subsequent infection, and innumerable other considerations.
More recent cases (Lee v South West Thames Regional Health Authority  1 WLR 845) have sought to be more realistic in considering that the general duty to keep a patient informed includes the duty to inform of the less successful aspects of the treatment.