On Sunday’s edition of Punchline, we will take a deep dive into the sick state of the country’s health and look at the monster of medical malpractice.
Many Kenyans have suffered untold injustice in the hands of medical quacks or as victims of medical malpractice, yet many of the offending doctors have walked scot-free or with just a slap on the wrist.
But with increased awareness of health rights among Kenyans, some medical malpractice patients have turned to the Kenya Medical Practitioners and Dentists Board (KMPDB) or the courts for redress.
This has led to soaring cost of clinical negligence as hospitals struggle under the increasing burden of compensation claims.
But first, what is medical malpractice or negligence?
According to the Mosby’s Medical Dictionary, medical negligence is the commission of an act that a prudent person would not have done or the omission of a duty that a prudent person would have fulfilled, resulting in injury or harm to another person.
Medical malpractice means bad, wrong, or injudicious treatment of a patient professionally, which results in injury, unnecessary suffering or death.
The Bolam test is used to assess medical negligence. It is based on a 1957 English case where the court held that the law imposes a duty of care between a doctor and his patient, but the standard of that care is a matter of medical, not common, judgement.
A doctor, therefore, is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
For being negligent, doctors can lose their license if convicted of an offence under the law.
Doctors can lose their license if “convicted of an offence under this Act or under the Penal Code (Cap. 63) … or, after inquiry by the Board, found to have been guilty of any infamous or disgraceful conduct in a professional respect”.
According to the Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules, 1979, “‘infamous or disgraceful conduct in a professional respect means serious misconduct judged according to the rules, written or unwritten, which govern the medical and dental professions.”
But how extensive is medical negligence in Kenya?
Early in 2019, a family was awarded Sh46.5 million in a medical negligence lawsuit against a top hospital in Nairobi for a botched surgery to rectify a nasal fracture.
In February 2019, another top hospital was found culpable of negligence and ordered to pay Sh2.4m to a woman who suffered a perforated uterus and intestine while undergoing treatment.
Between May 2018 and February 22, 2019, at least four leading hospitals were ordered to pay victims of doctors’ negligence a total of Sh106.6 million.
In May 208, a Nairobi-based hospital was ordered to pay Sh54.7m to a woman whose child ended up suffering from cerebral palsy due to negligence during birth.
Last year, KMPDB’s Professional Conduct Committee directed KNH to enter into an agreement with Simon Kimani Wachira, a victim of mistaken brain surgery.
A breakdown of sanctions against doctors for medical negligence since 1997 shows that only one doctor has been deregistered.
For the last 10 years, KMPDB has dealt with 671 cases, with 72 cases being handled in 2018. Since the beginning of this year, five complaints have been received.
KMPDB does not handle some cases since they are taken to the courts directly. As of February 2019, 1,055 cases had been lodged at the board, with 960 of them already determined at various levels.
Of the 960 cases at KMPDB by Feb 2019, 927 were determined at the Preliminary Inquiry Committee, 18 at Professional Conduct Committee (done at county level) while 15 were solved at a tribunal.