medical malpractice by 7eMca30

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									        MEDICAL
MALPRACTICE/NEGLIGENCE
      IN UGANDA.
 CURRENT TRENDS AND
       SOLUTIONS
    BY JUSTICE GEOFFREY
         KIRYABWIRE
       INTRODUCTION
• Increasing stories of medical
  malpractice in local press
• Alleged victims of malpractice
  increasingly resorting to legal remedies
• Medical and legal fraternity on verge of
  new experiences in the area of medical
  malpractice
Defining medical negligence
• Negligence is a legal not medical term
• Medical worker means
“…a health professional, administrative,
  scientific and support staff employed in
  the health service” (The code of Conduct and Ethics)

• Negligence is a Tort i.e. a civil as
  opposed to a criminal wrong
Defining medical negligence
• Ingredients of a tort
1. There must exist a recognised legal duty of
   care
2. There must have a breach of that duty of
   care
3. The breach of duty must occasioned loss,
   damage or injury
4. The loss, damage or injury was the direct or
   proximate cause of the breach of duty.
             Duty of care
•  Equal to the level of a reasonable and
   competent health worker
• To show from deviation of duty one must
   prove
1. A usual and normal practice
2. That a health worker has not adopted that
   practice
3. That the health worker instead adopted a
   practice that no professional of ordinary
   skill would have taken.
              Duty of care
• Final decision as to breach of duty lies with
  court and not the medical professional

Uganda Code of conduct and ethics provides
“ As a standard of behaviour and discipline for
  all health workers, it deserves the attention of
  every one to familiarise with it and adhere to
  the standards required of the service
• Hippocratic oath do all medical workers take
  it?
    Loss, injury or damage
• Breach of duty must have been the
  direct or proximate cause of the loss,
  injury or damage
• By proximate is meant
“…a cause which, in a natural and
  continuous sequence, unbroken by any
  intervening event produces injury and
  without which injury would not have
  occurred”
    Loss, injury or damage
• Generally he who alleges a malpractice
  must prove it.

• Exception:- The Principle of RES IPSA
  LOQUITOR
“The facts speak for themselves”
    Loss, injury or damage
• Legal compensation for Loss, injury or
  damage comes in the form of

“monetary damages”

not suspension or deregistration of the
 medical worker.
          Trends in the UK
• Legal standards set in the UK courts are of
  persuasive authority to Ugandan courts
• Standard since 1838 in UK is

“… a fair, reasonable and competent degree of
 skill…”

Not the highest degree of skill
          Trends in the UK
• Institutional Vs. individual liability

Principle of vicarious liability –

“institutions are liable for the clear negligence
  of their staff”

It does not matter whether the institution
   provides a free or a paid service
        Trends in the UK
• Medical misadventure does not amount
  to negligence

• Duty to be available

• Emotional negligence ?
        Trends in the USA
• In 2002 there were 18,999 medical
  malpractice payments in the USA

• 27% (i.e. a little under 1/3) of the
  patients who sued won their cases.
        Trends in Uganda
• Questions as to informed consent
• Application of the principle of Res ipsa
  loquitur – a question of level of
  complication of procedure?
• Cases against nurses
• Bulk of medical malpractice cases
  directed against Government not the
  medical workers.
 Changing trends in Uganda
1. Growing awareness of patient rights
2. Unqualified personnel/impersonators
3. Growing number of private clinics
   and health centres
    Emerging global trends
• Human rights and public interest
  litigation in medicine

• The right to health as an emerging
  human right?
  The way forward & possible
           solutions
1. The creation of objective and well
   established standards of practice that
   are enforced as a means of self
   regulation
2. Defensive medicine?

Litigation + worried doctor = Defensive
    medicine
  The way forward & possible
           solutions
3. The use of professional indemnity
   insurance and the establishment of
   medical defence unions
4. Good Samaritan legislation for
   medical emergencies?
            Conclusion
Cases of medical negligence in Uganda
 are likely to increase in light of the
 changing trends in the country. There is
 now greater patient right awareness.
 There is need to enforce medical
 standards as means of avoiding an
 escalation of these case. Time has also
 come to protect medical workers from
 such situation with some form of
 indemnity insurance.
          END



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