Hope for victims’ families as court rules on medical negligence case

Seven years ago, lawyer Sybril Odero checked into a city hospital. She was pregnant, hoped to deliver safely and return home with a bouncing baby.

Instead, Ms Odero died becoming another statistic of patients who succumbed to death in the hands of doctors and nurses.

Her family has, without success, made frantic efforts to seek justice for what they believed was a case of negligence by doctors.

However, there now appears to be  light at the end of the tunnel for cases like Ms Odero’s after the High Court directed that hospitals, not just doctors, should be held to account for negligence and harsher penalties imposed.

Justice Roselyn Aburili in February ordered the Medical Practitioners and Dentists Act to be reviewed to curb continued patients deaths under the care of hospitals due to negligence.

In the February 28 judgment, the judge told the Attorney-General (AG), the Kenya Law Reform Commission (KLRC) and the Health Principal Secretary to examine the law.

CONTINUE DYING

“This is essential as many patients continue dying in the custody and care of hospitals which could otherwise have been disciplined for misconduct and ordered to make amends, but the Act does not make such provision for such discipline of medical institutions,” said Justice Aburili.

She declared null and void Rule 4(A)(2)(e) of the Medical Practitioners and Dentists(Disciplinary proceedings (Procedure) Rules after finding that it was inconsistent with Section 20 of the Medical Practitioners and Dentists Act. The rules guide disciplinary cases arising from conviction of medical practitioners in regular courts or tribunals.

According to Dr James Nyikal who has been a member of the parliamentary committee on health, the medical board is already reviewing the Act following the court’s decision with a view to bringing a bill to Parliament.

However, KLRC and the AG’s office said they were yet to see the judgment.

BLAME GAMES

The medical board’s Chief Executive Officer Daniel Yumbya said he was not in a position to comment on the status of the review until Wednesday.

The ruling arising from Ms Odero’s case promises to end blame games on who is to take responsibility for negligence.

Ms Odero had been admitted at Nairobi hospital on February 11, 2011,  under the instructions of her personal doctor, Dr Bartilol Kigen, who was on private practice there.

She delivered a baby through caesarean section three hours after her admission at 10am, but developed complications after the surgery. She was then transferred to the ICU at about 6pm where she died.

Three months later, her father, Mr John Odero, lodged a complaint with the medical board while accusing Dr Kigen together with Dr Gerald Moniz of negligence.

The board asked the hospital to submit a full report regarding the complaint and then ordered it to appear before the Preliminary Inquiry Committee for clarification on how Ms Odero was handled. The board found the complaint had merit hence recommended the matter to proceed to full trial.

DEVELOP PROTOCOLS

But the hospital argued that the board lacked the jurisdiction to hear and determine the matter and wanted it referred to the Professional Conduct Committee (PCC). Its objection was overruled.

The two doctors then filed a suit at the High Court in 2013 in protest. That was before the parties consented to having the matter referred to PCC.

On March 3, 2016, PCC ordered the hospital to develop protocols for management of obstetric emergencies within 60 days and to confirm their circulation in divisional meetings and display within the facility.

The hospital was also ordered to put in place measures for management of emergency patients under the care of private doctors as well as a policy for intervention and involvement of senior gynaecologists in the event of severe post-partum haemorrhage.

The hospital was further ordered to pay Sh150,000 to the board as costs of the case within 30 days.

But the doctors and the hospital protested, accusing PCC of exceeding its jurisdiction. According to the law, PCC and the board have no powers to institute disciplinary proceedings against an institution.

DISCIPLINARY PROCEEDINGS

Justice Aburili ruled that the board exceeded the mandate provided under the Act. She also said the dispute should not have been referred to PCC because it had no powers to hear such cases.

She therefore directed that the complaint should have been referred to the board. According to the judge, the fact that both the board and PCC have no jurisdiction to hear disciplinary proceedings against the hospital should not prevent Mr Odero or any other person from seeking compensation for alleged medical negligence.

The medical board or tribunal usually handles cases of negligence filed against individual medical practitioners and hospitals. In most cases medical practitioners and hospitals, knowing this loop hole exists in the law, have led unsuspecting complainants down the garden path.

THIRD PARTIES

Medical practitioners when defending themselves usually claim not to have a duty of care over a patient and blame third parties for omissions or commissions

Hospitals, in turn, argue the negligence was contributory, that the complaint was time-barred or question which professional body should handle such cases.

Penalties under PCC include ordering parties to meet the cost of proceedings, further training of medical practitioners, suspension of practising licences for up to six months, closure of operations and admonishment.