Medical Malpractice Litigation in Kenya

Medical malpractice occurs when a healthcare professional, such as a doctor or hospital, deviates from the accepted standard of care, resulting in harm, injury, or death to a patient. These deviations can manifest as misdiagnosis, incorrect medication dosages, improper treatment, or inadequate post-operative care. Medical malpractice claims enable patients to seek compensation for damages caused by such substandard treatment.

Statutory Limitation on Medical Malpractice Claims

In Kenya, the Limitation of Actions Act governs the statutory limitation on medical malpractice claims, setting specific time frames within which legal actions must be initiated. These time limits prevent the revival of stale claims, where evidence might be lost, memories faded, or witnesses disappeared over time. This policy promotes justice by discouraging delays in pursuing legal remedies.

Under Kenyan law, tort-based claims, which encompass many medical malpractice claims, cannot be brought after three years from the date on which the cause of action accrued.

 

Medical Malpractice Cases in Kenya

Medical malpractice cases in Kenya are primarily brought under the tort of negligence. To successfully claim medical negligence, a plaintiff must demonstrate three elements: a duty of care owed by the healthcare professional to the patient, a breach of that duty of care, and injury or damage suffered by the patient as a direct result of the breach.

 

Duty of Care

When a patient visits a hospital and consults a doctor, both the hospital and the doctor assume a duty of care towards the patient. The parameters of this duty were summarized by the High Court of Kenya in Paul Semenye v Aga Khan Hospital & 2 Others [2006] eKLR:

• Possess the medical knowledge required of a reasonably competent medical practitioner engaged in the same specialty.
• Possess the skills required of a reasonably competent healthcare practitioner engaged in the same specialty.
• Exercise the care in the application of the knowledge and skill expected of a reasonably competent healthcare practitioner in the same specialty.
• Use the medical judgment in the exercise of that care required of a reasonably competent practitioner in the same specialty.

Thus, when a doctor recommends a surgical procedure, they assume a duty of care throughout the preoperative, operative, and postoperative stages, including follow-up care.

 

Breach of Duty of Care

Breach of duty of care is central to establishing negligence in medical malpractice cases. A breach occurs when a healthcare provider fails to meet the standard of care expected of a reasonably competent professional in similar circumstances, leading to harm or injury to the patient. This breach must be significant enough to deviate from the expected standard of care.

To constitute medical negligence, it must be shown that the breach directly caused harm or injury to the patient. This requires demonstrating a causal link between the breach and the adverse outcome experienced by the patient.

The courts will consider the evidence to determine whether the healthcare provider met the required standard of care and whether their actions or omissions contributed to the patient’s injury or harm. If a breach is established, the defendant may be held liable for damages, which could include compensation for medical expenses, pain and suffering, and loss of income or earning capacity.

 

Assessment of Damages for Medical Negligence

The assessment of damages in medical negligence claims in Kenya involves both general and special damages to comprehensively compensate the plaintiff for the harm suffered. The process relies heavily on judicial discretion, precedents, and evidence supporting the claim.

• Special Damages: Quantifiable monetary losses directly attributable to the negligence, such as medical bills, lost wages, and costs associated with rehabilitation or long-term care. These require clear evidence of actual expenses incurred.
• General Damages: Awarded for presumed losses arising from the infringement of a legal right or duty, such as pain and suffering, loss of amenities, and loss of expectation of life. Unlike special damages, general damages are assessed based on the court’s discretion and precedents.

In Clara Nzula Muli v. Marie Stopes Kenya Limited & Another [2019] eKLR, the High Court awarded general damages for pain and suffering due to post-surgery complications, along with special damages.

Recently, the Court of Appeal in the Paul Semenye Case enhanced the award on general damages for pain, suffering, and loss of amenities, as well as special damages and future medical expenses. This decision is significant as it sets a strong precedent for awarding damages and compensation for injuries resulting from medical malpractice in Kenya.

 

For Further Information

B M Musau & Co., Advocates LLP, a leading legal firm in Kenya, continues to monitor developments in medical malpractice and provides expert legal advice to our clients and stakeholders. Should you require further information or legal assistance regarding medical malpractice in Kenya, please do not hesitate to contact us.