Case laws on medical malpractice claims
This is a carefully researched and penned article on one of the hot subjects in the field of law and medicine—medical malpractice. It is in seven parts to enable the reader keep track of its flow
By Isaac
Bizumuremyi
The common law legal
system which I admire as the most appropriate system for the dispensation of
justice has held a long-standing position that a medical liability can only
arise out of the negligence of a health professional as early as 1957.
The English commonly
referenced authority in medical liability cases is the case of Bolam V. Friern
Hospital Management Committee, in which Justice McNair established tests for
determining the standard of care owed by medical professionals to their
patients (Bolam test).
In this case, McNair, J
summed up the test as follows:
“The test is the standard
of the ordinary skilled man exercising and professing to have that special
skill. A man need not possess the highest expert skill: It is well-established
law that it is sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art. In the case of a medical man,
negligence means failure to act in accordance with the standards of reasonably
competent medical men at the time. There may be one or more perfectly proper
standards, and if he confirms with one of these proper standards, then he is
not negligent.”
M. S. Pandit and Shobha
Pandit have argued that though a doctor may not be in a position to save his
patient's life at all times, the doctor is expected to use special knowledge
and skill in the most appropriate manner keeping in mind the interest of the
patient who has entrusted his life to this doctor.
In the Scottish case of
Hunter vs Hanley Lord President Clyde had earlier stated:
“In the realm of
diagnosis, and treatment, there is ample scope of genuine difference of
opinion, and one man clearly is not negligent merely because his conclusion
does not differ from that of other professional men, nor because he has
displayed less skills or knowledge than others would have shown. The true test
for testing negligence, in diagnosis or treatment on the part of the doctor he
has proved to be guilty of such failure as no doctor of ordinary skills would
be guilty of, if acting with ordinary care”
This position was upheld
in 1980 by Lord Denning of the UK House of Lords in the case of Whitehouse vs
Jordan when he issued a sweeping statement that “in a professional man, an
error of judgement is not negligence”
The preceding position of
the most respected English Apex court provides legal answers for some of the
cases I have read in the media.
That is to say, while a
doctor is applying optimal skills and expertise and errors in the diagnosis of
a medical condition of his patient and concludes a condition that is different
from the real one, the doctor cannot be said to have acted negligently, hence
he is not liable for actionable damages.
In other words, an error
of judgment in diagnosis or failure to cure a disease does not necessarily mean
medical negligence which calls for actionable damages.
This issue was well
handled by the Indian Commission responsible for hospital death in a case
between Dr. Subramanyam Vs Dr. B. Krishna Rao, the Indian National Commission
dealing with hospital death held that:
“The principles regarding medical negligence are well settled. A doctor can be held guilty of medical negligence only when he falls short of the standard of reasonable medical care. A doctor cannot be found negligent merely because in a matter of opinion he made an error of judgment”
The Author, Isaac Bizumuremyi, is Managing Partner at Lex Chambers; a Corporate lawyer, Commercial Litigator, Transactions Advisor, and Commercial Arbitrator in Kigali Rwanda
Lex Chambers
06 KN 33 Street
Kiyovu, Kigali City, Rwanda
Email: isaac@lexchambers.attorney
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