Medico-legal negligence or medical malpractice law has prominence in many developed countries where medical equipment, practices and infrastructure are more sophisticated. Medical jurisprudence in general can be attributed to Italian scholars of the 16th century – when the Pope’s physician wrote scholarly publications on medicine and law.
Inasmuch as medico-legal issues and the concept of medical jurisprudence has their power rooted in the knowledge of medicine, the law determines how far this power shall be utilised in the administration of justice.
Growing challenges of the health sector in Ghana have stagnated the development of our own medical jurisprudence. The horrid patient to health worker ratios and abysmal infrastructural maintenance and availability do not make it easier for patients to demand more from health workers and institutions.
However, over the past decades, Ghana has embraced private medical centres in search of some comfort and special care. Private health centres are associated with high medical bills – hence a demand for quality and better treatment and a rolling event on medico-legal claims.
The goal of this paper is to provide an insight on how medical jurisprudence is evolving and provide medical professionals with an introduction to basic concepts of medico-legal claims.
The law on civil negligence in Ghana is derived from the English common law, and has been developed by rulings of the court on negligence in Ghana. The basic elements required in establishing negligence are that:
- there exists a duty of care owed by the health professional to patients
- that the duty owed has been breached
- that an injury has occurred as a result of the breach
- that the injury has resulted in damages to the patient.
The legal system is designed to encourage discovery and negotiations between adversarial parties, with the aim of resolving disputes without prolonging the pain of victims. This contributes to the low number of cases that go to trial in Ghana, and leads to high out-of-court settlements for many medico-legal cases. Most private hospitals have a low appetite for reputational risks that arise from medico-legal cases, and endeavour to resolve them before they escalate to the courts. Damages are awarded based on economic and non-economic loss such as pain and suffering.
Before the 1990s, legal claims for medical malpractice were rare as few people contemplated such claims in Ghana. Over the past few decades, the frequency of medico-legal claims has increased as many Ghanaians contemplate filing claims against both private and public hospitals.
Once a lawsuit is filed, the health professionals and hospitals are saddled with the burden of dealing with the legal terrain – where their knowledge and learning are not the most critical aspects in determining their practical decisions. There has been a proliferation of these claims in recent years.
In order to win monetary compensation for injury related to medical negligence, the claim must be filed in a timely manner. The limitations Act sets the period for making such claims at three years. If the event that led to an injury occurred more than three years before the claim is made, then the claim or action is barred based on the limitations Act.
Medico-legal negligence can be an action or an omission to act by a health professional that deviates from the accepted norms of practice in the medical community, which commission or omission causes injury to a patient and resulting damages. To establish negligence, the courts will consider the following:
- Whether the health professional owes a duty of care to the patient; if so, what is that duty given the circumstances?
- Whether this duty has been breached
- Whether this breach resulted in an injury to the patient
- Whether the injury caused resulted in damages (emotional, physical or financial) to the patient.
This paper will focus on the Dr. E. L. A. Chinbuah & Nyamekye v. Attorney General (37 Military Hosp.) case. The facts of the case are that the Plaintiffs are the Father and Husband respectively of the deceased – who died in childbirth while the baby she delivered suffered trauma that caused birth-defects. From the events that occurred, the deceased was admitted for delivery on account of pre-eclampsia (pregnancy-induced high blood pressure).
The Plaintiffs, both health professionals, and the deceased – a PhD candidate, discussed with their primary healthcare professional and agreed to have an elective caesarian section. The team of healthcare professionals decided to induce the labour instead. The deceased struggled through the delivery much more than expected. It is difficult at this point to determine a woman in anguish while in labour from a signed consent for surgery. The pleas for caesarian section during labour are not new to professionals, and hence they continued their work.
After delivery of the baby, he had to be taken into the Neonatal Intensive Care Unit as he had suffered some complications. The deceased mother was hemorrhaging after the delivery and was not attended to until later – when it was discovered that she had a uterine tear and was taken into surgery, where she died.
The court raised seven issues to address, and those seven can be summed-up into the four elements discussed above. The evidence before the court included a post-mortem report that indicated the cause of death as Hypovolemic shock, primary post-partum haemorrhage and hypertensive heart disease
The court’s decision is not based on whether the medical team took the right decision or not, but in establishing negligence; the court considered whether the team had a duty to ensure that they adopted methods and decisions a reasonable medical professional would adopt given the circumstances. And that is how the duty of care is established.
The testimony of the doctor who ordered an induction of labour was that the deceased had breakfast prior to the request for a caesarian section, and so he ordered that she be induced. There was no proper documentation of the consent to vaginal delivery – and this puts health professionals at risk. The lack of documentation and proper documentation thereof can be the breaking point for healthcare professionals.
The court stated supra: “I note that Plaintiff’s Counsel, in reaction to the testimony that he obtained a ‘verbal consent’ to ostensibly change the caesarian section to the vaginal birth, submitted that – “My Lord, instructively enough, DW5 told the Court that the consent was a verbal one because the hospital does not have a written consent form. We submit that it is a convenient tale, knowing very well the only person who can confirm or deny that event is no more”. In the Court’s opinion, Counsel’s observation and submission cannot be far from the truth.
There is a duty to obtain prior consent for the purpose of diagnosis, treatment and disclosure of medical records for teaching and medico-legal purposes. Express consent may be difficult to obtain in certain circumstances – such as a decision in the course of a surgery or emergency. Whatever the case, it is important to document properly every decision and communication.
It is important that health professionals take documentation as a critical part of their practice. It is recommended that all communication should be documented, and all charts’ information documented should be communicated to the patient. This will absolve health professionals from situations as cited above.
While considering the testimony of the health officers took note that supra “a review of all the evidence above points to one irresistible conclusion, and that is the fact that all the doctors agreed that the deceased – who had high blood pressure from the 10th of November to the 11th of November – was a known high-risk patient; and therefore after the induction to labour she ought to have been reviewed at least every four hours by a resident…… the midwife who was with the deceased was very clear in her mind that the patient was not reviewed throughout the night.
“Based on all the evidence, including the admission of the Defendant’s witnesses that the deceased death was preventable, the only logical conclusion that the Court ought to come to on this issue is that the deceased died from injuries (tear) sustained during the vaginal delivery, which injury was not sutured in time – leading to her death.”
The claim for damages is usually based on the principle that once the wrong has been committed, the damages suffered must be paid for by the plaintiff. The court in the case mentioned above supra in assessing the damages noted that the plaintiffs did not state a figure. His Lordship noted that: “In my respectful opinion, the fact that no figure was stated does not mean the plaintiffs are not entitled to any damages at all. …. the deceased was a PhD student in Molecular Cell Biology of Infectious Disease at the University of Ghana.
“At the time of her death, she was only 27 years of age. It cannot be far-fetched that based on her career in pandemic and post-times, her knowledge and expertise would have been of immense help to this country, her community and family. ….in view of the above, looking at the stature of the deceased, it cannot be denied that the family has lost a lot based on loss of expectation of life. I think it is reasonable to award each Plaintiff an amount of GH¢400,000 each. “…………… since I have no evidence of deformity, I shall make the following awards:
General Damages:
- Pain and Suffering – GH¢100,000.00
- Disfigurement and Disability – GH¢50,000
- Primary caregiving expenses and medication – GH¢50,000.”
Conclusion
The court discussed the principle of vicarious liability, wherein an employer is held responsible for the actions of employees who were acting within their lawful capacity and their normal duties. In these circumstances, the courts will deduce the liability of the healthcare providers based on the actions that resulted in complications or injuries. In the present case, the plaintiffs lost a daughter and a wife, as well as mother to a young child who also suffered defects. A clear case of neglecting an existing duty of care, a breach of the duty of care, the breach causing an injury and resulting damages will establish a clear case of negligence.
>>>the writer is a lawyer called to the Ghana Bar with experience in litigation and experience in medico-legal incidents, having worked as a lawyer in a leading private hospital in Ghana. She can be reached via [email protected]
