Where do I take my Medical Negligence case?
Where do I take my Medical Negligence case?
Where do I take my Medical Negligence case?
In March 2018, one of the major public hospitals in the country came under scrutiny due to an incident where doctors performed brain surgery on the wrong patient. It was reported that the patient has since passed away. The mix-up occurred because of incorrect patient labeling: one patient required surgery for a brain blood clot, while the other needed only non-invasive treatment for swelling. The seriousness of the situation led to the suspension of staff, ranging from the involved nurses to the CEO, by the then Secretary of Health.
This was just one of the many medical negligence cases that are witnessed across the country not only in the public but also private hospitals. In a recent case of J O O (also known as J M) v Attorney General & 6 others [2018] eKLR, a woman, identified as J.O.O sued the Bungoma County Government and Bungoma Referral Hospital for inhumane and degrading treatment that she received while delivering a child at the Hospital. Both the High Court and the Court of Appeal agreed with her submissions and granted her damages of Kshs. 2,500,000/= for the inhumane treatment she received from the hospital staff.
Many victims of medical negligence may wonder where their remedy lies. There are different options depending on the circumstances of each case and the reprieve that the victim seeks as listed below:
- file a complaint with the Kenya Medical Practitioners and Dentists Council (the Council) which will hear and determine the matter; (appeal to court if dissatisfied)
- approach the Court directly; or
- file a complaint with KMPDC and file a suit in court concurrently.
In certain cases, the process begins with the patients filing a complaint with the Council which is a statutory body constituted under S.3 of the Medical Practitioners and Dentists Act Cap 253 Laws of Kenya (“the Act”). Complaints of misconduct are received by the Council which reviews the complaint to determine whether they are within the mandate of the Council. Where it is determined that a complaint is within the mandate of the Council, the complaint shall be referred to the Ethics and Disciplinary Committee to inquire into the complaint, to verify the facts and other details of the complaint in order to determine the action to be taken. The Committee will then conduct hearings guided by the principles of natural justice and upon conclusion, may make either of the decisions provided under The Medical Practitioners and Dentists (Inquiry and Disciplinary Proceedings) (Procedure) Rules 2022 (“the Regulations). Such decisions include:
- dismiss the complaint;
- if the person is found guilty the Committee may order one or more of the sanctions specified under section 20 of the Act; or
- recommend to the Director of Public Prosecutions to initiate criminal proceedings against the person found guilty where necessary;
- make such order as the Committee considers fit; or
- make such recommendations to the Council as the Committee considers fit.
A person dissatisfied with the decision of the Committee, which no appeal has been preferred, and who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of that person or could not be produced by the time the decision was made, or on account of an error apparent on the face of the record, or for any other sufficient reason desires a review may apply to the Council for review, without unreasonable delay. A person aggrieved by a decision of the Committee may also appeal to the High Court as provided under section 20(9) of the Act.
It is important to note that claims can be pursued before both the Council and civil courts. In the case of Jagdish Sonigra Vs. Medical Practitioners & Dentists Council & 2 Others [2008] eKLR, the High Court held that concurrent civil proceedings do not prevent Council proceedings. Civil court cases operate in a jurisdiction entirely separate from Council matters. Essentially, individuals seeking redress for medical negligence can choose to pursue avenues through the KMPDC, civil courts, or both. Opting for the civil court is generally preferable when seeking compensation for medical negligence. In any event, it is advisable for one to approach a legal professional experienced in this area for guidance on the best approach to take.
written by Wesley Muriuki
Email: wesley@knjenga.co.ke