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

The conclusion

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. This is the last part

By Isaac Bizumuremyi

As I stated in the body of this Article, a medical doctor is not a guarantor of life, or recovery of the medical condition of the patient.

The limited experience or skills, error of judgement in diagnosis, and treatment of a patient does not constitute negligence.

A medical practitioner may only be held liable for negligence conduct exhibited in the course of diagnosis, and or treatment of the patient.

For a medical practitioner to be held negligent, the patient or claimant must have suffered damage and must establish the causal link between the damage and the negligence of the physician. 

For a health establishment to be held liable for damages under the vicarious liability principle, its physician must first be found to be in fault by an independent and impartial court.

Filing a lawsuit against the health facility (hospital, or clinic) without suing the concerned professional (medical practitioner), will only lead to unjust decision either on the claimant or respondent.

The concerned physician must be present in court and be given opportunity to defend him/herself against claims of negligence.

In awarding damages to the claimant, courts must have found negligence in the conduct of the physician.

Damages should be based on the patient’s loss of opportunity and the claimant must prove this loss on balance of probability.

In the already cited opinion of the UK’s House of Lords, Lord Nicholls of Birkenhead stated that to achieve a just result in such cases the law defines the claimant’s actionable damage more narrowly by reference to the opportunity the claimant lost, rather than by reference to the loss of the desired outcome which was never within his control.

Courts should also stick to awarding damages on principle of established liability rather than awarding ex-gratia damages.

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 to read previous parts

Part one

The cause of the harm [by the media], 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.

Part two

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.

Part three

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.

Part four

The failure to meet "the standard of care" as a substantial factor in causing the damage must be established to meet the basic rule of "no harm, no foul” of which the claimant must be able to prove that actual damage did occur.

Part five

In brief, a mere wrong diagnosis of a medical condition is not medical malpractice, and the doctor is not liable for negligence if reasonable care was exercised.

Part six

For this ground (lack of informed consent) to succeed, the claimant must prove that the doctor failed to provide adequate information to enable the patient to make an intelligent choice regarding the course of treatment.