When a saviour becomes a villain

Fungai Nyamundanda
Legal Matters
The relationship between a patient and a medical practitioner is undoubtedly professional and various expectations arise as a result.
It implies that a patient reposes a lot of belief from the engagement by virtue of trust, the practitioner’s qualifications, the experience, or the obvious fact that the patient would have paid for the services.
The question that baffles the minds of many is the extent to which the patients’ hopes should stretch and at what stage should one should take legal action against the practitioner where one feels dissatisfied.
The great corridors of medical institutions will surely tell you that they always hear disgruntled murmurs amongst relatives when news of their beloved ones passing on breaks.
I have learnt that in such situations, painful emotions may get the better of people though sometimes their discontent is justifiable.
There has been an increase in the number of alleged gross medical negligence cases, which calls for some immediate strict laws to be made in this regard.
When a person visits a doctor, that person expects a certain degree of care and caution which is implicit in the services provided.
A doctor cannot escape liability be saying he acted to the best of his abilities. His abilities are supposed to match the abilities of a doctor who is professing the same service to a reasonable degree.
The concept of professional negligence is hinged on the idea that every person who enters a particular profession undertakes to bring to it a reasonable degree of care and skill.
That person requires a particular level of learning to be a professional.
But a surgeon cannot and does not guarantee that the result of surgery will invariably be beneficial, much less to the extent of 100 percent.
The only assurance which such a professional can give or can be understood to have given is that the professional possessed of the requisite skill and exercised it with reasonable competence.
This is all a person approaching the professional can expect.
Judged by this standard, a professional may be held liable for negligence on one of two findings: either he did not have the requisite skill as claimed; or he did not exercise it with reasonable ability.
Negligence can be understood as a breach of the legal duty to take care, which results in damage.
This definition involves elements of negligence which are to the effect that a legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty, that the offender committed the breach of the said duty, that the complainant suffered damage due to the breach of duty and that the consequences were undesirable.
These elements are to be checked in such actions although the categories of negligence are never closed.
In the same breath, duty covers a wide range and the court is to decide. It is impossible to give one general, comprehensive definition of negligence as it arises from several relationships.
The wrongful act of negligence is, therefore, complex and fluid because in determining liability issues like duty, care, causation and remoteness of damage are to be analysed.
These complexities tend to discourage many from approaching the courts because of the legal expenses attached to that, and expertise to prove the case considering that the person suing lacks knowledge and understanding.
This has seen a lot of cases instituted by litigants failing to get to the trial stage.
It is for the complainant to prove negligence, and this causes problems if it is impossible for him to know what precise acts or omissions led to injury or damage, especially where the cause of damage is within the means of knowledge of the practitioner who caused it.
In these circumstances this hardship can be avoided by the application of a rule of evidence which means that a thing speaks for itself; ie the facts and circumstances the complainant has proved establish a proper case of negligence against the practitioner.
The requirement is that mere happening of the accident should tell its own story and raise the conclusion of negligence.
It must be remembered that the burden of proof keeps shifting but the initial onus lies with the one bringing a claim. It is his duty to prove negligence by the doctor.
The burden of proof then shifts towards the doctor to prove that he acted reasonably, to the best of his abilities and in the patient’s best interest.
If he fails to prove so he will be liable of negligence and damages can be awarded.
On the other hand, the skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment advisable.
Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution.
Medical opinion may differ with regard to the course of treatment but as long as a doctor acts in a manner acceptable to the medical profession, and the court finds he has attended to the patient with due care, skill and diligence, and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor guilty of negligence.
The law does not require of a professional be a model combining the qualities of a walking encyclopaedia and prophet.
In other words, the test is the standard of the ordinary skilled man exercising and professing to have that special skill.
A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
In the case of a medical man, negligence means failure to act in accordance with the standard of reasonably competent medical man at that time. There may be one or more perfectly proper standards and if he conforms to one of these proper standards, then he is not negligent.
It is the doctor’s duty to attend a patient admitted in the emergency ward of a hospital and if the doctor does not care to attend and the patient suffers or dies, the doctor would be liable to pay compensation.
Then there are those patients who approach medical institutions or individuals seeking services which the law specifically prohibits.
For example, our law forbids abortion unless legal termination proceedings are followed.
It becomes a bone of contention whether to report or sue a medical practitioner for an abortion gone wrong when the law criminalises that act.
Clearly one cannot expect the law to bless what is also unlawful in its eyes.
The patient quietly sweeps her pain and anger under the carpets of unjust silence and the offending practitioner goes scot free.
Perhaps the time has come to enact legislation to carve out remedies for patients who suffer in serious ways due to negligence.
It is time now that a forum be established to easily provide remedies to such patients.
This should be done with a publicity campaing that makes people aware of their rights. But certainly the rules and regulations should not be made so strong so as completely take away the freedom of doctors to treat patients.
A doctor should be given the freedom to treat his patients without fear and to his best abilities.
The fact that doctors do play a major role in bringing happiness cannot be denied. A balance is required between the rights of patients and doctors.
It is essential to open the doors to new treatment while securing the patients’ rights.