Medical negligence occurs when medical or healthcare professionals, such as doctors, diverge from the acceptable standard of care resulting in avoidable harm to a patient. An incorrect diagnosis or prescription dosage delayed or missed diagnosis, incorrect or unnecessary treatment or surgical errors are all types of medical negligence.
It’s worth noting that these claims are subject to statutory limitations. For instance, section 4(2) of the Limitation of Actions Act, cap 22, requires a plaintiff to bring their claim within three years from the date of the cause of action. This article provides a step-by-step guide on the key considerations before lodging a claim for medical negligence.
Key issues to consider before raising a claim for medical negligence:
- First, do you currently possess all the necessary information and evidence to substantiate a claim of medical negligence? If not, are you legally entitled to formally request such information from the medical professional or hospital involved?
- Second, based on the information available to you, are there any acts or omissions by the medical professional or hospital that may constitute a breach of the duty of care, thereby indicating potential medical negligence?
The applicable laws
- The Constitution of Kenya 2010, Articles 35 (Right to access information) and 43 (Right to the greatest possible health standards);
- The Access to Information Act – Section 4;
- The Health Act, sections 5, 7, 12(2), and 14;
- The Limitation of Actions Act, Cap 22, section 4(2);
- Medical Practitioners and Dentists Act Cap 253 Section 4A;
- The Evidence Act (Cap 80), section 107; and
- Kenya National Patients’ Rights Charter (2013) – enacted by the Health Ministry.
Access to information
Who has the right to medical records?
Under the Health Act, information relating to a patient’s health status, treatment or stay in a health facility is confidential unless disclosure is authorized by the patient or a court order or where non-disclosure may pose risks to public health.
However, a patient under the Access to Information Act and the Patient’ Rights Charter is entitled to their medical records, including clinical notes, nurse’s notes, nursing kardex, signed consent forms and theatre operation notes. Where a patient’s request for their records is refused by a hospital or medical facility, a patient’s first port of call should be to lodge a complaint against the hospital with the Commission on Administrative Justice.
A deceased patient’s immediate family also the right to get access to their loved one’s medical records either to ascertain the cause of death or get a second opinion on it. In this regard, they can request hospital in-patient notes, including but not limited to all notes made by the medical and nursing staff in relation to the deceased for a specific period, past medical history, the allergies treated if any, the record of medical examinations carried out during the period, triage notes and the nursing Kardex for the deceased.
The court in Mwaniki v Attorney General & 6 others (Constitutional Petition E342 of 2020) [2023] KEHC 22385 (KLR) clarified that this right is not absolute and can be limited per Article 24 of the Constitution. The circumstances contemplated by Article 24 and which can lead to the denial of the right to access information, include: where the disclosure is likely to violate professional confidentiality, prejudice the rights of others, impede the due process of law, or undermine national security.
Establishing a claim of medical negligence
Legal Standards and Obligations
Under Article 43(1)(a) of the Constitution, every person has the right to the highest attainable standard of health. This right is further reinforced by section 5 of the Health Act, which guarantees access to promotive, preventive, curative, rehabilitative, and palliative health services.
Further, section 7 of the Health Act provides for the right to emergency medical treatment, while section 12 imposes a duty on healthcare providers to offer health-care diligently, within their knowledge and professional scope. A breach of this duty may amount to medical negligence.
In Jimmy Paul Semenye v Aga Khan Hospital & 2 Others (2006) eKLR, the court held that, “when a physician or other medical staff member does not treat a patient with the proper amount of quality care, resulting in serious injury or death they commit medical negligence.”
Procedure for complaints
When the professional duty under section 12 of the Health Act is breached, a person can file a complaint in accordance with section 14 of the Health Act, about the manner in which he or she was treated at a health facility and have the complaint investigated appropriately. Such complaints are to be submitted to the Disciplinary and Ethics Committee of the Council established under section 4A of the Medical Practitioners and Dentists Act Cap 253. This Council is mandated with the regulation of professional conduct as well as leading inquiries on the complaints submitted to it. Alternatively, one can petition the High Court for violation of human rights and fundamental freedom, or lodge a claim under tort.
Evidentiary Requirements
To sustain a claim for medical negligence, the claimant must prove that the conduct of the healthcare provider fell below the standard expected of a reasonable competent professional. This standard was discussed in Ricarda Njoki Wahome v Attorney General & 2 Others (2015) eKLR, where the court stated that,
“A doctor can only be held guilty of medical negligence when he falls short of the standard of reasonable medical care and not because in a matter of opinion, he made an error of judgement. For medical negligence to arise there must have been a breach of duty and the breach of duty must have been the direct or proximate cause of the loss, injury or damage.”
Burden of proof
This burden of proof lies with the claimant, as provided under section 107 of the Evidence Act Cap 80; which states that, “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and when a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”
Therefore, to sue for medical negligence one will be required to adduce evidence to bring out the actions or omissions evidencing professional negligence on the part of the hospital or the medical practitioners. In doing so, they should note that, courts have emphasized the importance of expert testimony in establishing negligence in medical practice. For instance, in Odero vs Aga Khan Hospital Kisumu ( Civil Appeal No. E011 of 2020) {2024} KEHC 3408 (KLR) ( 4 April 2024) (Judgement), it was observed that, “…in claims for medical negligence, expert evidence from a fellow professional, similar to the profession of the defendant accused of negligence should be adduced to guide the court in its determination of a medical negligence case.”
Therefore, one must obtain independent medical opinions from specialists in the same field to establish that the injury, harm or death is a direct consequence of the breach of duty of care and ensure that their expert reports are properly annexed as part of the evidence.
If you require assistance navigating the legal framework of medical negligence in Kenya, contact us at: info@smc-legal.com. The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter.