The Cost Of Medical Negligence.

On the 20th of April, 2023, the Court of Appeal pronounced itself on matters to do with compensation that arises out of medical negligence. The judgement in the case of Jimmy Paul Semenye (a minor suing through his father and next friend Paul Semenye) v Aga Khan Health Service Kenya T/A The Aga Khan Hospital & 2 others, established a firm jurisprudence and set the tone on the award of damages and compensation for injuries suffered as a result of medical negligence, going forward.

What amounts to medical negligence?

Medical negligence arises in situations where there is a deviation from the standard of care of a medical professional that causes injury to a patient. Standard of care loosely translates to the degree of care a prudent and reasonable person would exercise under a particular set of circumstances. For medical professionals, it refers to the benchmark that determines whether professional obligations to patients have been met.

Therefore, for a doctor to be found negligent, they must have not exercised the required standard of care while handling their patients and as such, their negligent acts will occasion harm to their patients.

The Facts of the Case.

The father of a child had initially filed   a lawsuit against the Aga Khan Hospital, on the child’s behalf in the High Court, alleging medical negligence. The child's mother had gone to the hospital for a checkup because she was two weeks overdue in her pregnancy. However, the hospital's staff negligently induced labor, resulting in a vaginal birth. They also forcefully pulled the child out of the birth canal, causing an injury called Erb's Palsy. The parents argued that the hospital had a responsibility to determine the safest way to deliver the baby.

The hospital denied any negligence and claimed that they handled the delivery in the best way possible. They argued that the child's condition was unavoidable and wholly inevitable due to prolonged labor and the baby's weight. They also suggested that the mother should be held entirely responsible for any negligence because she didn't provide important information or disclose her medical history to the hospital.

However, the High Court had found the hospital jointly and severally liable for the child's injuries. In finding the hospital to be negligent the High court considered that first the hospital owed a duty of care established contractually, to the child and its mother by admitting the child’s mother as a patient in their hospitals.

 The fact that that the hospital had failed to conduct regular drills to cater for emergency circumstances or provide qualified medical personally to act on stand-by in case of medical emergencies and; that the medical practitioner who was involved in the delivery was not a qualified gynecologist, enabled the court to find in favour of the child that the hospital was indeed negligent in their handling of the matter. The High Court therefore made the following orders:

 a) The hospital must pay Kshs. 800,000 for general damages, covering the child's pain and suffering.

 b) The hospital must also pay Kshs. 70,000 and Indian Rupees 115,823 for special damages, based on evidence presented. 

c) Future medical costs of Kshs. 50,000 were awarded. d) The hospital is responsible for the costs of the lawsuit, including the child and the child's father.

 e) Interest will be applied to both general and special damages.

Not satisfied with the amount of damages awarded, the child’s parents filed an appeal against the court's decision.

The Court of Appeal’s Decision

The Court of Appeal, held that the amount awarded for general damages by the High Court was inordinately low and was therefore set aside. 

In providing a rationale for this holding, the Court cited the case of Arrow Car Limited v Elijah Shamalla Bimono & 2 others [2004] eKLR where the Court stated that:

“It is our view that in assessment of damages the general method of approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

The Court of appeal   found that the amount awarded by the High Court was not commensurate with the injuries suffered by the Appellant, nor was it in tandem with past decisions of the court. The gravity of the Appellants’ injuries, his prolonged pain and suffering as well as his young age called for a higher award.

The Court of Appeal overturned the award of damages made by the High Court and made the following orders

a)     General damages for pain, suffering and loss of amenities: Kshs. 15,000,000.

b)     Special damages: medical expenses- Kshs. 78,735; travel expenses- Kshs. 160,016, Rs.1836, USD 3112,10, accommodation, meals and other expenses- Kshs. 60,331, Rs. 49,259.

c)     Further medical expense as agreed by consent: Rs. 550,350.69, Kshs. 506,368, USD 1,107.

d)     Future medical expenses (physiotherapy) Kshs. 7,800,000.

Conclusion

Professionals in the medical field ought to act with extreme due diligence, especially because the result of their actions could determine whether a patient lives or dies and literally is a matter of life and death. 

The quantum of damages in this case underscores this point and put hospitals and medical practitioners on notice, regarding the skill, care and duty that they should employ when handling their patients