Benjamin T. Antiedu (2021) in his forward in the book “The Law and Naturopathic Medicine Practice in Ghana”, notes that a healthy nation is, indeed, a wealthy nation. He is further of the view that this realism is a universally recognized human right that every person is entitled to enjoy. Ghana follows this international order by making health a constitutionally guaranteed right under Chapter 5 of its Constitution, and same is reflected under Articles 30 and 34(2) thereof. While Article 30 of the Constitution guarantees the right of persons in Ghanaians to good health care, Article 34(2) reinforces this right by mandating the President to report to Parliament, on annual basis, steps taken to realise the “right to good health care.”
The enjoyment of the right to good health care appears to be waning. There are increasing reports of medical negligence cases in Ghana by both public and private health facilities. Medical negligence cases pose a serious threat to quality health care delivery, as financial resources available for improvement of health facilities and logistics are lost to payment of damages. More money is lost in cases where issues of negligence are lost through litigation before being sent to courts, where delays and increased costs are prevalent.
In the case of The State v Tsiba (1962) 2 GLR 109 at p.111, Akufo Addo J.S.C (as he then was) defined negligence as: “the omission to take care where there is a duty to take care”.
Recent judicial decisions on medical negligence
The 37 Military Hospital is the first medical facility in Ghana to be slapped with GH¢1,075,000 in damages for the negligent death of a 27-year-old woman during childbirth in November 2015. The Court awarded the father and husband GH¢400,000.00 each for loss of expectations of life; GH¢50,000.00 in damages of mental distress also to them and GH¢100,000.00 to the baby, Yaw Nyamekye, in damages for pain and suffering. The Court also awarded GH¢50,000.00 to Yaw Nyamekye in damages for disfigurement; GH¢50,000.00 in damages to primary caregivers and an additional GH¢25,000 in damages.
The Sam-J Specialist Hospital was also not spared in 2021 as the Court slapped the hospital with GH¢326,456 as damages for medical negligence that led to the paralysis of a baby in the right arm. The amount included the award of general damages of GH¢200,000 and a cost of GH¢20,000 against the hospital and its owner, Dr. Amoo Mensah, a specialist Obstetrician Gynecologist, who the Court found to have negligently failed to live up to professional medical standards in providing antenatal care to the Plaintiff.
The Court presided over by Justice Doreen G, Boakye-Agyei determined that although the Plaintiffs (expectant mother and her husband) sought the services of the private health facility and its owner for the best medical treatment to deliver a healthy baby, “their expectations were dashed due to the inability of Defendants to adhere to their own ethical and professional standards,” leaving the child “handicap for life.”
The Court found that as a result of the poor medical treatment, the baby suffered Klumpke’s palsy; a paralysis of the arm due to an injury of the network of spinal nerves resulting from a difficult delivery.
Per the facts of the case, the couple, represented by their counsel, Mr Emmanuel Darkwa, indicated that in March 2017, they sought antenatal care from Sam-J Specialist Hospital, upon which the owner of the hospital, Dr. Amoo Mensah, an Obstetrician Gynecologist, was assigned to care for the pregnant wife. According to the plaintiffs, who sued the hospital in June 2019, adequate professional medical care was not offered as required of the doctor and the hospital, adding that on one occasion, a scan of the pregnancy was taken, upon which it was detected that the unborn baby had an unusual size and weight of 3.85kg at 37weeks which normally made delivery difficult.
They said although the expectant mother expressed concern about the size of the unborn baby, the doctor ignored her concerns, adding that during another visit, the doctor prescribed a medication for the expectant mother without informing her of the purpose. She explained that she only found out at the pharmacy that the prescribed drug was for diabetes, although she was not diabetic. According to the plaintiffs, they subsequently found out that gestational diabetes was the cause of the increase in the size and weight of the unborn baby, which the hospital and doctor failed to offer any advice to address the situation before birth.
The Plaintiffs maintained that the injury suffered by their newborn son was a result of the big size and mode of delivery used by Dr Mensah and his hospital. As a result of the injury, the plaintiffs had to seek medical remedy at other health facilities in Ghana and India, incurring substantial costs in the process. The court granted all the reliefs sought by the Plaintiffs, except the interests on the various costs incurred.
More legal battles
As it stands, the 37 Military Hospital is also facing another suit brought against it earlier in July 2021. The family of a patient, Solomon Asare-Kumah, who died after being admitted at the 37 Military Hospital at age 48, sued the management of the facility over alleged medical negligence.
In a writ of summons filed by the lawyer for the family, they listed wrongful insertion of an oxygen tube and malfunctioning of a drill meant for surgery, among other things, as the cause of Solomon Asare-Kumah’s death. The mental distress caused by the death of Solomon Asare-Kumah according to the writ also led to the passing of the deceased’s father. The family is asking the court for damages in excess of GH¢2 million from the 37 Military Hospital.
Ridge Hospital is also facing a GH¢5 million lawsuit for possible negligence from a man whose wife and baby died at the hospital in 2020. This led to the Ghana Diaspora Women Organization to call for the immediate suspension of two doctors and nurses involved in alleged negligence that led to the death of a patient at the Ridge Hospital.
The administration of wrong medication is believed to have contributed to the death of Madam Esther Sosuh, the wife of Dr. Emmanuel Kuto, who is the Director of the Institute of Languages.
Dr. Kuto’s wife, aged 48-years-old, had been diagnosed with hernia and was receiving treatment after checking in at the facility on June 21, 2020.
The group in a statement notes “simply too many lives are lost through gross negligence, and enough is now enough.” The group further called on the Ghana Health Service Director-General and the Director of Ridge Hospital to “immediately suspend the two doctors and nurses involved in this alleged matter, as we believe their behaviour was unethical of the medical profession.”
This notwithstanding, only few people are often able to take legal action against these health facilities and sometime, legal cost could be the barrier. We believe it is time for tort reforms in the healthcare industry in Ghana to reduce the burden that medical malpractice and negligence cases place on the health care industry.
We hold the view that if the number of jury trials could be reduced, the overall costs of medical malpractice and negligence cases could also be reduced. Jury trials are expensive, and the road to a trial is long and costly. A classic example is the recent case which had to travel from November 2015 to 2021. For this reason, as health care policy researchers interested in reforms, we suggest replacing jury trials with arbitrations and many other recommendations as a way of resolving medical malpractice as well as negligence cases that don’t reach an out-of-court settlement.
Our concerns as healthcare policy researchers
As healthcare policy researchers, we are of the view that the rising nature of lawsuits against hospitals and healthcare professionals has the capacity to make our healthcare professionals, especially Medical Doctors, more defensive in their medical practice in order to avert suits. This could pose danger as defensive medicine could pose a threat to patients.
We are tempted to support Prof. Justice Date-Bah, who holds the view that, “Medicine and the Law is a battle area and we need to bring the rule of law into that area. In Ghana, it is said that health professionals never testify against themselves and therefore there is a real hurdle to litigation of medical malpractice cases. It is important that health professionals should put the public interest first.
On the other hand, we do not want to go the other way such as in America where doctors may fear to touch patients for fear of malpractice. There has to be a middle way somewhere”. The former Justice of the Supreme Court made the remarks in 2018 during a workshop to train healthcare professionals on medical law. This goes to show that the renowned Professor of law was also of the view that the rampant cases of legal suits against doctors could trigger the practice of defensive medicine, which would not auger well for our patients.
Nature of defensive medicine
“I will prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone”– Hippocrates. The above oath is what every physician is required to follow. However, what happens in real practice is quite alarming. Defensive medicine in simple words means departing from normal medical practice as a safeguard against litigation.
According to the MedicineNet.com (2021), defensive medicine includes medical practices designed to avert the future possibility of malpractice suits. In defensive medicine, responses are undertaken primarily to avoid liability rather than to benefit the patient. Doctors may order tests, procedures, or visits, or decide to avoid high-risk patients or procedures primarily (but not necessarily solely) to reduce their exposure to malpractice liability. Defensive medicine is one of the least desirable effects of the rise in medical litigation. Defensive medicine increases the cost of health care and may expose patients to unnecessary risks.
Kapp et al (2016) describes defensive medicine as the “Clinical practice that is driven by the physician’s perception of legal self-interests”. Defensive medicine may be positive or negative, depending on the situation. For instance, the former includes performing unnecessary diagnostic tests and invasive procedure, prescribing unnecessary treatment and needless hospitalization.
The latter comprises avoiding risky procedures on patients who could have benefitted from them, thereby excluding patients from treatment and hospital admission (MK, 1996). Both practices are increasingly becoming professional behaviour in medical practice, thus, increasing the cost of healthcare and sometimes lowering the quality of the service provided. For example, unnecessary invasive diagnostic tests are additional risks and costs to the patient
Risks in practicing defensive medicine
Studdert, et al (2005), in a study conducted in Pennsylvania among 800 physicians to determine the prevalence of defensive medicine revealed that 92% of physicians were found to be ordering imaging tests and diagnostic measures for assurance and 42% were eliminating high risk procedures and avoiding patients with complications.
In Gallup and Jackson Healthcare (2010)’s study, 73% and 92% of private sector physicians respectively admitted to practicing defensive medicine, which was high compared to 48% of government physicians. The above studies highlight how prevalent defensive medicine is due to fear of litigation.
Rodriguez, et al. (2007) revealed that 50% of the doctors operating in emergency departments in California between 2001 and 2005 were concerned with matters of malpractice litigation. An earlier study by Hiyama et al. (2006), this time in Japan, among a group of 131 gastroenterologists revealed similar results.
One recent study by Anupam & Seabury (2016) found 60 and 90 percent of U.S. physicians practicing defensive medicine just to avoid liabilities. Interestingly, this has also cost the U.S. as much as US$50 billion annually, and this likely underestimates the scope of the problem. In a similar study by the same researchers also conducted in 2015, it was revealed that Physicians who spend more money and resources conducting tests and procedures for patients are less likely to be sued for malpractice, the study indicates “defensive medicine” may work.
The study assembled a unique database of physician spending patterns and malpractice history among nearly all physicians practicing in Florida hospitals from 2000-2009. The authors profiled physicians in each of seven medical specialties in terms of the average hospitalization costs of their patients, accounting for differences across physicians in the types of patients treated, which may influence a given physician’s average spending.
Within each specialty, they found that physicians with higher spending in a given year; in other words, the physicians who ordered more tests or procedures for the “typical” patients; were substantially less likely to be sued for a malpractice incident occurring the following year. They compared each physician’s year over year spending to show that in years in which a given physician’s spending was higher, he or she was less likely to be subsequently sued compared to years in which that physician’s spending was lower.
Finally, among obstetricians, for whom C-sections are often thought to be defensively motivated, they found that doctors with higher C-section rates were also sued less often. So should the doctor at the 37 Military Hospital have accepted the patient’s request and performed the C-section to avert liability? This study shows that defensive medicine could probably save Ghanaian doctors from lawsuits.
Litigation or Arbitrations: which way to go?
The most significant similarity between the two processes is that (in most circumstances) they are both binding. At the conclusion of arbitration, the arbitrators will issue a decision, and the loser will not have an opportunity to reargue the case in court.
However, there is an exception to that rule. Some states have passed laws creating systems involving non-binding arbitration. In those states, both parties will have a right to reject an arbitrator’s ruling and proceed to trial. However, that is not the norm. You should assume that arbitration will be binding and will take the place of a trial unless told otherwise.
Another similarity between the two processes is the format. Like trials, arbitrations usually involve opening statements by both sides, the presentation of witnesses (including expert medical witness testimony) and closing arguments by both sides. The primary difference in format is that there is no judge or jury in arbitration. Instead, arbitrators (usually one or three) act as both judge and jury.
Another difference in format is that arbitration tends to be less formal than trials, though it is by no means an informal process. Many of the technicalities that courts follow with respect to rules of evidence and rules of procedure are not observed in arbitration. For example, hearsay testimony is usually allowed.
A major cost-saving difference involves the process leading up to arbitration. The parties and their lawyers generally need to spend less time preparing for arbitration than they do for trial. Also, whereas the road to a trial can be plagued with an endless stream of procedural and evidentiary motions, very few (if any) motions are appropriate prior to arbitration.
Apology laws have been enacted in several states in the US to allow physicians apologize for errors or poor outcomes without the apology being admissible in court. In theory, apologies reduce patient anger and maintain trust, thereby reducing claims. Meaningful data on their efficacy is lacking, although many have called for further exploration. Apology laws facilitate apologies by making them inadmissible as evidence in subsequent malpractice trials. The underlying assumption of these laws is that after receiving an apology, patients will be less likely to pursue malpractice claims and will be more likely to settle claims that are filed. Many healthcare institutions have adopted Apology Laws. There are generally two types of apology laws, full and partial apology laws.
Full apology laws protect statements that are consistent with the definition of an apology, i.e., an expression of regret and a disclosure of error. States with full apology laws explicitly protect statements of fault. Partial apology laws protect expressions of regret only, without any protection given to error disclosure. The vast majority of states protect sympathetic statements and do not protect expressions of fault explicitly. In states with partial apology laws, physicians who make a full apology to a patient will only have the statement of regret excluded as evidence.
An example of apology laws in practice was seen in the case of Stewart v. Vivian 91 N.E. 3d 716 (Ohio, 2017). This Ohio malpractice case occurred after Michelle Stewart died by suicide while psychiatrically hospitalized. Dennis Stewart, Mrs. Stewart’s husband, sued his wife’s psychiatrist, Rodney Vivian. Mr. Stewart alleged that Dr. Vivian spoke with Mr. Stewart and said that “it was a terrible situation, but [Mrs. Stewart] had told [Dr. Vivian] she wanted to kill herself”. Mr. Stewart actually said that he did not recall Dr. Vivian apologizing or offering sympathy. Dr. Vivian testified that he had told Mr. Stewart he was “sorry this has happened”.
The court ruled in favor of Dr. Vivian, and the Court of Appeals of Ohio affirmed. The Court of Appeals also examined Ohio’s apology statute, which previously had been interpreted as a partial apology law. Upon examining the language, which specifically stated an “apology” should be excluded, the Court of Appeals determined that this statute should, in accordance with the definition of an apology, protect error disclosure. In general, the therapeutic benefits of apologies are associated more closely with full apologies.
Significance of Apology Laws
One study by Ho and Liu (2011) observed that apology laws have increased physician apologies, expedited claim resolutions, and decreased the number of and payments for malpractice claims.
Another study by McMichael et al. (2019), reported that apology laws did not change the overall likelihood of either surgeons or non-surgeons facing malpractice claims but did increase the likelihood of non-surgeons facing malpractice claims that led to litigation. The authors also noted that apology laws have increased total malpractice payments for both claims and lawsuits, and this increase is pronounced particularly for non-surgeons
Arbitration in healthcare?
We also advocate for medical malpractice cases to go for arbitration instead of trial because the patient waives the right to a jury trial before the doctor even treats the patient. In some jurisdictions, many health insurance plan agreements contain languages in which the patient agrees beforehand that any medical malpractice claim will be heard by an arbitrator, not in court. For example, most Kaiser Permanente plans contain such a provision.
If a document discusses arbitration, waiver of a jury trial or “alternative dispute resolution,” it is probably asking the patient to waive any right to a jury trial in advance, and to agree that any disputes will go to arbitration, or another alternative.
The validity of an arbitration clause can be challenged in court. Courts are somewhat skeptical about arbitration clauses in medical malpractice cases, but most courts generally enforce them, depending on the circumstances.
Circumstances that might lead a court to declare an arbitration clause invalid include clauses that are too one-sided. For example, an arbitration that would bind one side but not the other would likely be invalid. A clause that not only requires arbitration, but also limits the damages available to the patient might be invalid. A clause that requires the patient to file an arbitration claim within 30 days of the injury would also probably be deemed invalid.
Many states have passed laws dictating how arbitration should work in medical malpractice situations. Usually, when arbitration clauses comply with those laws, courts will find them to be valid and enforceable. However, arbitration clauses that fail to comply with state medical malpractice laws are often unenforceable. For example, a state law might require an arbitration clause to clearly indicate that a patient does not need to sign the agreement in order to receive treatment. Any clause that fails to comply with that requirement would probably be unenforceable. Thus, medical malpractice arbitrations are not limited to a particular type of case. Arbitration will occur in most cases in which the patient has signed a valid arbitration clause. In other words, the patient can usually control whether a case goes to arbitration (to a certain extent).
In our book “The Law and Naturopathic Medicine Practice in Ghana”, we advocate for the establishment of specialized courts for healthcare in Ghana, although they have not been adopted in any state. Healthcare courts could provide a layer of consistency to diminish physician concerns about unfair treatment by a jury of lay people. While the jury makeup might not change, the governance of the courts would theoretically be more reproducible.
In 2012, the current Government’s Manifesto interestingly proposed a brilliant health policy on ombudsman with the power to investigate healthcare cases to ensure that complaints from patients are properly addressed. We believe this is the time to implement this. This policy was supported by Owusu-Dapaa (2016), though others disagree. He believes that, health Ombudsman could be an agency under the Commission on Human Rights and Administrative Justice (CHRAJ).
Practicing defensive medicine is not good for patients or physicians. The adverse effects of defensive medicine are not limited to the increased cost of healthcare, but also the negative implications on the overall quality of the healthcare system. Hence, we believe Ghana needs urgent national tort reforms in the healthcare sector.
About the Authors
>>>Noble Prof. Raphael Nyarkotey Obu is currently entering his final year of the LLB Law program at the Kings University College and is the author of the book” The Law and Naturopathic Medicine Practice in Ghana”. Lawrencia Aggrey-Bluwey, is the coauthor, a Clinical Nurse, Health Services Manager and an Assistant Lecturer with the Department of Health Administration and Education, University of Education, Winneba. She is also a PhD student in Health Policy and Management, at the University of Ghana Business School, Legon.