• Medical malpractice is omission by a health care provider to provide treatment that is acceptable professionally
• A woman was in May 2018 awarded Sh54 million in a medical negligence suit against the Nairobi Women's Hospital
Image: LYNDSAY NYAWIRA
Kenyans have a reason to be worried by the increasing number of medical negligence cases.
This year alone 81 malpractice cases have been lodged with the Kenya Medical and Practitioners and Dentists Board compared to 72 cases in a similar period last year.
The board has since 1997 received 1,131 cases and determined 1,006 of them. Some 125 others are at different stages of investigations, according to CEO Daniel Yumbya.
On May 29, this year, a woman was awarded Sh1 million in a medical negligence lawsuit filed against a pharmacist.
Judge Msagha Mbogholi ordered the pharmacist to pay her Sh1,050,000 for taking upon himself to diagnose, prescribe and administer drugs to the 17-year-old patient who later succumbed to the side effects of the administered drugs.
"Weighing the evidence submitted by both parties in this matter the conclusion that the defendant was negligent is irresistible. I find the defendant liable for the death of BMN on the basis of negligence," Mbogholi said.
Another woman was in May 2018 awarded Sh54 million in a medical negligence suit against the Nairobi Women's Hospital.
She was admitted to the hospital with labour pains but she did not receive proper medical attention.
Her labour intensified without a medic to attend to her until. She was much later rushed to theatre for emergency caesarian section.
Her child suffered severe asphyxia that resulted in cerebral palsy.
The nearby Nairobi Hospital was ordered to pay the parents of a minor Sh45,000,000 for botched nasal surgery on the boy.
The boy had sustained a nasal fracture while playing basketball.
The court had been told that arising from the doctors' careless, negligent and/or reckless execution of the surgery, the boy sustained hypoxic brain damage.
The cost of clinical negligence is soaring.
Yumbya said they are "committed to ensuring a case is determined within three months after being lodged unless the parties involved opt to go to court."
Lawyer Duncan Okatch of Kontos Advocates defines medical malpractice as an omission by a health care provider to provide treatment that is acceptable in the medical community.
He said malpractices cause injury or death, with most cases involving medical error.
"Just like any other profession, medical practitioners are required to use their qualifications to the best of their knowledge for the best treatment of those who consult and / or rely on them," Okatch said.
CONSEQUENCES
MPDB legal consultant Peter Munge said medical practitioners and institutions must obtain professional indemnity (PI). This is a form of insurance that covers or protects professionals from liabilities arising from their work. They are issued by insurance companies or banks.
The MP&D Act came into force on May 17, 2019, with the requirement that all healthcare institutions and medical practitioners have PI cover as a prerequisite for a practising licence.
“Every practitioner shall in each year take a professional indemnity cover and every health institution shall in each year insure the health institution against professional liability of its staff,” Munge said.
The Act takes effect from January 2020.
Okatch said there are several legal implications of a medical practitioner being found culpable of medical malpractice, ranging from criminal, disciplinary and pecuniary sanctions.
He said fines charged on medical malpractices can be in millions.
"For 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 death, loss, injury, or damage," he said.