How Much Would A Claim For Medical Negligence Cost You?

Introduction 

When a medical practitioner is consulted by a patient, certain duties arise that are owed by a practitioner to their patient. A breach of any of those duties may give rise to medical negligence and the patient may on that basis recover damages from his doctor or health care provider.

An award of damages refers to the legal relief offered to an injured party arising out of the wrongful conduct of another. Such compensation serves to act as restitution in a bid to restore the injured party to the position they were in before the injury took place. It is based on the principle that if a person commits a civil wrong, he must pay compensation by way of damages to the person wronged.

 When a court finds a person liable under a claim of medical damages, there are three kinds of damages that the court may prescribe:

1. Special Damages
2. General Damages
3. Exemplary Damages

 1. Special damages

Special damages are a form of compensation that seeks to cover expenses incurred as a result of negligent medical treatment. Such expenses include hospital bills, physiotherapy, need for nursing care, travel expenses, funeral expenses and accommodation among other things. 

Contrary to general damages, special damages are quantifiable, and the precise amount of pecuniary loss which the claimant can prove and therefore need to be specifically pleaded and proved when making a claim in court. Its purpose is to return the injured patient back to the financial position they would have been in, had the medical negligence not occurred. 

 For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred. Although the cost of future medical expenses can also be objectively estimated and awarded under this head.

2. General Damages

 The courts have described General Damages as those that are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved, but the claimant may not be able to quantify exactly any particular items in it. 

When determining the quantum of general damages to award for medical negligence, the court takes into account certain factors, depending on whether the patients survives or succumbs to the medical negligence claimed.

From the judical precedent available from the Kenyan Courts it would appear that in cases where medical negligence results to the death of a patient the courts may consider and award damages, similar as it would for personal injury claims under the heads: Pain and suffering, , loss of life expectation and loss of dependency.

Patients that survive medical negligence may be able to successfully claim damages for pain, suffering and loss of amenities.

a. Pain and suffering

Injuries that occur due to medical negligence often result in pain and suffering for the patient. Pain and suffering damages are awarded for both the physical and mental anguish caused to an injured patient, both pre-trial and in the future as a result of the injury. 

This would include pain caused by the injury itself, the treatment used to alleviate the awareness of the pain, or the suffering caused by the anxiety that the patient’s condition may worsen. It follows that the award for pain and suffering is intended to compensate the injured patient for the anguish they have endured as a result of the accident whether physical or mental. 

Damages under pain and suffering can also be claimed by a deceased patient’s estate. The courts will consider the time it took for the injury to cause death when awarding damages under this head. The longer a patient suffers before they finally succumb the more the damages that the courts will award.

b. Loss of Amenities

This head of damage is intended to compensate the claimant for the impact of the injury on the claimant’s enjoyment of life and for the limitations on their lifestyle due to the injury caused by the medical negligence.

Compensation for loss of amenities can be difficult to quantify and relies on the claimant being able to provide the court with evidence of how the injury has impacted the patient on a day-to-day basis.

Usually the courts will award for pain, suffering and loss of amenities under one head. Although, the two are easily distinguishable as two separate set of factors that the courts consider while awarding damages for medical negligence.

Judicial precedents will guide the court in determining what amount to award under this head based on the evidence produced and circumstances of  each case.

c. Loss of expectation of life

Where medical negligence results to loss of life then the court can consider an award based on the loss of expectation of life.  Loss of expectation of life refers to the reduction in an individual's lifespan as a result of the negligence of a healthcare provider. The courts have awarded damages under this head for the shortening of enjoyment of life or the lost prospect of “an enjoyable, vigorous and happy old age"

General damages for loss of expectation of life are awarded to compensate the plaintiff for the shortened lifespan and the loss of potential future experiences and opportunities.

Damages awarded under this head are guided by judicial precedent, which most Kenyan courts have set at Kshs. 100,000/= as adjusted occasionally to cater for inflation.

d. Loss of Dependency

Damages for loss of dependency are typically awarded in cases involving the death of a breadwinner or someone who was financially supporting their dependents. 

When determining damages for loss of dependency, the court considers various factors, including the following:

Age and life expectancy: The court will consider the age of the deceased at the time of death and their life expectancy. Younger individuals with longer life expectancies may result in higher damages.

Income and earning capacity: The court will assess the deceased's income at the time of death and their potential earning capacity over their remaining working years. This evaluation takes into account factors such as education, skills, and career prospects.

Financial contributions to dependents: The court will consider the extent to which the deceased was financially supporting their dependents, including immediate family members such as spouses, children, and parents. This includes regular financial support, such as providing for basic needs, education, healthcare, and other necessities.

In Kenya the Multiplicand and the Multiplier method is common in assessing damaged under this head.

Here the award of damage will be assesses using the formulae:

 Annual  income of the deceased (Multiplicand) X Number of years the deceased was expected to live (Multiplier) X Ratio of his contribution  to his Dependents (Ratio)

3. Exemplary damages

To be awarded exemplary damages in a medical negligence cases, the patient or their estate must demonstrate that the defendant's conduct was not only negligent but also exhibited a high degree of recklessness, wantonness, or willful misconduct. Mere negligence or unintentional errors may not be sufficient to warrant an award of exemplary damages.

The amount of exemplary damages is generally left to the discretion of the court and is determined on a case-by-case basis. The court will consider factors such as the severity of the negligence, the impact on the claimant, the defendant's conduct, and any aggravating circumstances surrounding the case.

It's important to note that exemplary damages are relatively rare in medical negligence cases and are typically only awarded in exceptional cases where the defendant's conduct is deemed particularly egregious or malicious. The primary focus in medical negligence cases is generally compensatory damages, which aim to provide compensation for the actual losses suffered by the claimant, such as medical expenses, pain and suffering, and loss of income.

Conclusion

It should be noted that an award of damages is not meant to enrich the victim, rather, it is to compensate such victim for injuries sustained. This principle holds true even for cases of medical negligence.

The guiding principle in the assessment of damages has been previously explained by the court that:

“Damages must be within limits set out by decided cases and also within limits the Kenyan  economy can afford. Large awards are inevitably passed on the members of the public, the vast majority of whom cannot afford   the burdens in the form of increased costs of  insurance or increased fees”

 Damages awarded  should always be commensurable to the injuries sustained. Each case must be treated on its own facts with previous awards in similar injuries sustained acting as a   guide to ensure that an award is not inordinately low or high.