Medical negligence is substandard care that’s been provided by a medical professional to a patient, which has directly caused injury or caused an existing condition to get worse. In other words, the health care professional fails to provide the type and level of care that a prudent, local, similarly-skilled and educated provider would act with in similar circumstances. There are a number of ways that medical negligence can happen. These may include misdiagnosis, incorrect treatment or surgical mistakes.
Medical negligence is one of the problems in our communities: For example: Failure to diagnose or misdiagnosis. Misreading or ignoring laboratory results. Unnecessary surgery. Surgical errors or wrong site surgery.
Long before the twentieth century, judges had begun to recognize that more people suffered loss or injury through careless acts than through intentional ones. Towards the end of the eighteenth century judges therefore established principle that defendants in certain specific situations might be considered liable for their careless act where they caused foreseeable loss or injury to a claimant. One attempt to establish a formula through which duty situations could be identified came in Heaven v Pender. In that case Brett M R suggested that;
“Wherever one person is …… placed in such a position with regard to another that everyone of ordinary sense…. Would at once recognize that if he did not use ordinary care and skill…. He would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.”
The normative goal of medical negligence law is to maximize social welfare by reducing the overall cost of medical malpractice and carelessness in our hospitals. In order to determine whether or not medical negligence has taking place, there are certain elements which needs to be checked first before conclusions can be drawn. These are;
- Duty of care: which means whether the defendant (medical practitioner) owed duty of care to the plaintiff (patient)?
- Breach of duty: the plaintiff (patient) must show that the defendant (medical practitioner) breached such duty by failing to exercise reasonable care in fulfilling that duty.
- Damages: the plaintiff (patient) must prove that the defendant’s (medical practitioner) actions caused injury.
All these need to be proved or shown before medical negligence can be established.
THE NATURE OF THE DUTY
Lord Atkins neighbor principle is worth looking at. According to him “the rule that you are to love your neighbor becomes in law you must not injure your neighbor; you must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbor” Lord Atkin’s position looks quite simple because as individuals, we always have passion for our neighbors and we are under obligation to love one another, For instance, a doctor is under obligation to protect and care for his/her patient.
In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr. and A. S. Mittal v. State of U.P. it was laid down that when a doctor is consulted by a patient, the doctor owes to his/her patient certain duties which are
(a) duty of care in deciding whether to undertake the case,
(b) duty of care in deciding what treatment to give, and
(c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action
in negligence. According to Lord Esher “it has often been pointed out that a person cannot be held liable for negligence unless he owed some duty to the plaintiff and that duty was neglected.
In Barnett v. Chelsea and Kessington Hospital Management Committee it was held that the medical practitioner did not cause the death of the said patient because his duty was not neglected.
A patient generally approaches a doctor/hospital based on his/her reputation. Expectations of a patient are two-fold: doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly they will not do anything to harm the patient in any manner either because of their negligence, carelessness, or reckless attitude of their staff.
In medical practice, the standard of care required is usually contained in the rules of professional ethics for medical practitioners in different regions. In Ghana, the Ghana Health Service Codes of Conduct and disciplinary procedures (2018) contain the guiding principles, constitution, civil responsibilities, offences and penalties for medical practitioners.
According to McNair, J. “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 skills: 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 conforms to one of these proper standards, then it is not negligence.”
In the article “Duty in tortious negligence” Professor Winfield says to ask a medieval lawyer, why is a common carrier or a surgeon under a duty to take care, would amount to asking a modern lawyer, “Why must a husband support his wife? Showing that duty of care does not originally belong to the law of negligence; Professor Winfield traces the history of the concept of duty of care and says that the notion is imported from contract. For instance in any contractual relationship there is a duty to each of the parties to perform his/her part of the contract to avoid being liable for breach of contract. A patient expects medical treatment with all the knowledge and skill that the doctor possesses to bring relief to his medical problem. The relationship thus, takes the shape of a contract.
There exists a duty to obtain prior consent (with respect to living patients) for the purpose of diagnosis, treatment, organ transplant, research purposes, disclosure of medical records, and teaching and medico-purposes. With respect to the dead in regard to pathological post mortem, medico-legal post mortem, organ transplant and for disclosure of medical record, it is important that informed consent of the patient is obtained. Consent can be given in the following ways:
- Express consent: it may be in writing or oral.
- Implied consent: it may be implied by patients’ conduct.
- Tacit consent: means implied consent understood without being stated.
- Surrogate consent: this consent is given by family members.
- Advance consent: Proxy consent and presumed consent are also used.
It was held in the case of Samira Kohli vs. Prabha Manchanda and Ors that, “consent given for diagnostic and operative laparoscopy and laparotomy if needed does not amount to consent for a total hysterectomy with bilateral salpingo opherectomy. The appellant was neither a minor nor mentally challenged or incapacitated. As the patient was a competent adult, there was no question of someone else giving consent on her behalf? The appellant was temporarily unconscious under anesthesia, and as there was no emergency, the respondent should have waited until the appellant regained consciousness and gave proper consent”.
According to Lord Tomlind in the case of Donoghue v Stevenson “every manufacturer or repairer of any article is under a duty to everyone who may thereafter legitimately use the article
to exercise due care in the manufacture or repair of that article”. This legal principle clearly underscore the nature of medical negligence as both the medical institutions, hospitals and practitioners placed in the position of manufacturer or repairer are under a duty to ensure that medical practitioners who provide those services exercise due care to patients which are their clients.
BREACH OF THE DUTY
In Heaven v Pender it was stated that “it has often been pointed out that a person cannot be held liable for negligence unless he owed some duty to the plaintiff and that duty was neglected”.
In R v. Bateman a medical practitioner causing the death of a patient. It was held that, for such a person to be guilty there must be evidence that there was such negligence as was greater than the mere absence of ordinary care. It must be proved that the person showed a total disregard for the life and safety of others.
According to (Offei, 2014), to know whether there is a breach of duty, you must check whether the defendant has measured up to the standard of himself or herself in the circumstances. Two key elements suffice here:
(1) what as a matter of law is the standard of care required of the defendant in the circumstances?
(2) As a matter of fact, has the defendant attained the standard e.g. can the claimant prove the defendants breach of duty in his case?
In the case of Haryana and Ors. V. Raj Rani IV it was held that “Doctors can be held liable only in cases where failure of operation is attributable to his negligence and not otherwise. Medical negligence recognized percentage of failure of sterilization operation due to natural causes depending on techniques chosen for performing surgery”.
In Ghana, the health service code of conduct and disciplinary procedures (2018) categories medical negligence, professional misconduct and malpractice as major offences under chapter 8. The penalties for the major offences include (a) suspension of salary for one month (b) removal from office (c) reduction in rank and many more.
Lord Macmillan held that, the test for the breach of duty does contain a certain subjective element that is left to the individual judge to decide: “what in the circumstances of the particular case the reasonable man would have had in contemplation and what accordingly the party sought to be made liable ought to have been foreseen”. What to one judge may seem far-fetched may seem to another both natural and probable. To his position reasonableness should be measured according to the situation or circumstance.7
According to (Kumador, 2009), “a person cannot be said to have breached his duty in respect of an injury which is so unlikely that the reasonable man will not provide against it.”
In conclusion, the law absolutely frowns on medical negligence and provides for instances where medical negligence can be said to have occurred.
Namely, that there should be a duty of care owed by the medical practitioner to the patient. Secondly, that there should be a breach of that duty. And thirdly, that there should be damages arising as a result of the breach.
Medical negligence is the misconduct by medical practitioners by not providing enough care and taking proper safeguards or measures resulting in the breach of their duties harming the patient. The relationship between a doctor and patient takes the form of a contract retaining the essential elements of tort. The doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against the doctor.
The act of medical negligence results in civil liability, criminal liability and disciplinary action.
 Heaven v Pender (1883) 11 QBD 503
 Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr. AIR 1969 SC 128.
 A.S. Mittal v. State of U.P. AIR 1989 SC 1570.
 Barnett v. Chelsea and Kessington Hospital Management Committee (1969) 1 QB
 Samira Kohli vs. Prabha Manchanda and Ors
 Heaven v Pender (1883) 11 QBD 503
 R v. Bateman [ 1926-30] cox C.C 33
Offei, S. (2014). The Law Tort in Ghana: Text, Cases and Material.
 Haryana and Ors. Vs. Raj Rani IV (2005) CPJ28(SC