When should medics be liable for their practice? (Part one)

Of medical malpractice and negligence

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 term “medical malpractice” is an internationally preferred terminology used in actions for damages in connection with medical services.

Claims related to medical malpractice have attracted the attention of media reporters, and their reporting has simply been harmful to health establishments in terms of their reputational image.

The cause of the harm, I guess has not been intentional but rather was out of a limited understanding of the medical malpractice viewed within the lenses of the law.

This piece is thus prepared in response to the prevailing situation in many countries as a lawyer’s contribution to the general understanding of the subject and hopefully trigger a law reform in the area of medical professional liability.

Medical malpractice is nothing else but negligence

This article will largely draw its support from well-settled decisions of the highest courts in various jurisdictions.

For those who do not know or understand the role or the importance of decided cases in resolving their disputes before courts, I thought it needful to highlight such importance.

Decisions of the highest courts such as Supreme Courts, and Courts of Appeal in certain issues of the law will bind the lower courts on the subject matters with similar facts.

For example, if the Supreme Court has given its interpretation, meaning, and or application of given legal provisions and facts in a given situation, that interpretation, meaning or application of a law, or facts must be followed as it is by the lower courts.

Such decisions are commonly referred to as case law.

Common law jurisdictions (countries with a legal system that is largely influenced by the English legal system) will respect those Apex court decisions irrespective of the country where they were rendered.

This is the jurisprudential principle of Stare decisis.

The principle of “stare decisis” is based on a Latin phrase meaning to stand by decided cases, uphold precedents, and maintain the positions earlier laid down by higher courts.

Principally, Stare decisis is about adherence to decisions of superior courts and avoiding disturbing questions of law that have been put to rest.

The objective of non-disturbance of decided legal questions is to avoid confusion in the minds of the citizens as to what the law of the land is.

By adhering to the principle of Stare decisis, it will contribute to the development of a good law, which is definite, lucid, and unambiguous with the flexibility to relate to different situations, facts, and circumstances and that justice is done in accordance with the law.

In the context of this article on medical malpractice, case law is very important for legal practitioners as they present how Honourable Judges of Superior Courts have for centuries considered medical malpractice and we will largely make reference to court-decided cases to illustrate our points.

This is why we thought it was important to first highlight the importance of the already decided cases so that the reader can also attach such importance to what has been decided by courts in matters of medical malpractice.

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 two of seven