What negligence is and how it is committed
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
Justice Alderson defined negligence in the English High Court case of
Blyth v. Birmingham Waterworks in the following statement:
“Negligence is the omission to do something which a reasonable man
guided upon those considerations which ordinarily regulate the conduct of human
affairs, would do or something which a prudent or reasonable man would not do”
“The defendants might have been liable for negligence, if,
unintentionally, they omitted to do that which a reasonable person would have
done or did that which a person taking reasonable precautions would not have
done”
It transpires from this definition that negligence is committed when a
person falls short of the objective standard of the reasonable man.
In the medical profession, negligence was modified in the case of Rex. v
Bateman by an English Judge Lord Hewart CJ as being the objective standard of a
reasonable member of that profession or calling.
For a better understanding of the concept of medical malpractice as
understood by courts from different legal systems in the world, it is important
to mention to patients and all other health facility services users that
medical professionals cannot and will not guarantee to cure one’s health
condition each time one visits their places of work demanding their services.
Pathologists, (laboratory Doctors), general practitioners, specialists,
and nurses are not, and will not be objectively liable for their incorrect or
inaccurate examination, and, or treatment of one’s medical condition.
As a matter of principle, dissatisfaction with the quality of services
from a health worker, and the costs one may have expended on the health worker
does not translate into a fault that satisfies for actionable damages.
Medical liability can only and objectively be established out of the
negligence of a physician.
Medical professionals are not different from other professionals such as
Judges, lawyers, accountants, and auditors.
For example, if a judge’s judgement is overturned by the appellate court
for error of law, improper interpretation of the law, or for any other reasons
to do with competence, such a judge will not be sanctioned for the poor
judgement.
So it is for lawyers, accountants, and auditors.
A lawyer will not be sanctioned for losing a case of $ billion as a result of his limited litigation skills.
The lawyer will be paid the agreed legal fees whether the lawyer won or
lost the case.
A lawyer is not responsible for the outcome of the case he defended on
behalf of the client.
However, this does not mean that lawyers will not be liable if their
clients lost the case as a result of their negligence.
Similarly, accountants and auditors will prepare your financial
statements and audited reports, but you will sign them alongside their
disclaimer that they will not be responsible for the inaccuracy of their
reports.
In the 1985 court case of Glenn Hall, v. Glyn R. Hilbun, M.D., the
Supreme Court of Mississippi held that a physician does not guarantee recovery,
nor is a competent physician liable per se for a mere error of judgment,
mistaken diagnosis, or the occurrence of an undesirable result.
When a physician undertakes to treat a patient, he takes on an
obligation enforceable at law to use minimally sound medical judgment and
render minimally competent care in the course of the services he provides.
A physician may only be liable when the patient sustains an injury
because of the failure to perform (omission) the duty assumed under medical
law.
Therefore, medical malpractice is a legal fault by a physician or surgeon when the practitioner fails to provide the quality of care required by law.
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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Click here to read part three of seven
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