The Malm-Hesse medical negligence project

The Malm-Hesse Medical Negligence Project 2022 is a pro bono and an educative tailored initiative targeted at selected hospitals and clinics within the Greater Accra region of Ghana to educate them on medical negligence, clinical errors and physician liability.

The project time run is expected to be five months starting from 1st November, 2022 to March, 2023. During this period seminars will be held for the various hospitals and clinics identified and the legal team will create and or review “medical negligence” legal frameworks for these hospitals and clinics so they function better.

This is an initiative of Christian Lebrecht Malm-Hesse Esq., Senior Associate, of Ecam Law Consult, Airport residential area Accra. Mr. Malm-Hesse drives this initiative as part of his pro bono time and dedication to the growth of law of tort in Ghana.

Having come across a number of cases in his practice as a lawyer, he believes that the law can be used as a tool of education to help reduce the incidence of increased medical negligence, clinical errors and physician liability in the hospitals and clinics of Ghana.

His belief is that prosecution of health practitioners, hospitals and clinics will generally not suffice even though desirable as these target audience sometimes act below the standard of care required by their professional standards and law. He also believes that many down trodden patients who are affected by medical negligence mostly are unable to assess legal services not alone prosecute their interest in court to the end.

The way to go is education to health practitioners of which they will exercise the due skills required of by their standards of practice. This project targets ten (10) hospitals and clinics in the Greater Accra region.

The 1992 Constitution of the Republic of Ghana per Article 30 (Right of the Sick) provides that every person has the right to health care whether the person has the capacity to consent or not. It further states that where the person is unable to register his or her consent to subscribe to this particular right enshrined under the Constitution, then he or she shall not be deprived by any other person (which includes hospitals and its offices) of medical treatment. Article 34 (2) further enforces this position, as it requires the President of Ghana to report to Parliament on the status of this right.

Medical negligence comes under the law of tort which falls directly under civil law. The law of tort deals with civil wrongs leading to possible compensation . Under tort is the broader concept of negligence which per the case of the State v Tsiba (1962) 2 GLR 109 at p.111, Akufo Addo J.S.C (as he then was) defined negligence as: “the omission to take care where there is a duty to take care”. Under negligence is Standard of Care, and this is where the law of medical negligence is situate. I shall deal more with prescriptions of the law under the sub-heading “Background”.

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The instant project is to deal with the rising cases of medical negligence in the country as witnessed in various Court cases. The purpose of the project is to educate healthcare providers on medical errors, negligence and litigation thereof; to educate them on system approach to primary prevention of malpractice and to empower them to proactive preventive mode of medical negligence.

The total effect of this is to help reduce medical negligence, clinical errors and physician liability to a desirable degree amongst the target audience. Ten (10) hospitals and clinics will be selected for this project which will span over five (5) months. The success of this project will be realized when the target audience appreciate, understand and implement lessons leant after contact hours.

BACKGROUND

Medical negligence as defined by the case of Gyan vs. Ashanti Gold Fields [1991] 1 GLR 466 quoting with approval per McNair J. in Bolam v. Friern Hospital Management Committee [1957] 2 All E.R. 118 at 121 stated that:

“…In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion, and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care…”

It is very important to set the context right that a doctor or a health practitioner is not guilty of medical negligence if he acted in accordance of what is accepted by medical standard. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care . A patient approaching a doctor expects medical treatment with all the knowledge and skill that the doctor possesses to bring relief to his medical problem. The relationship takes the shape of a contract retaining the essential elements of tort. A 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 doctor has a duty to obtain prior informed consent from the patient before carrying out diagnostic tests and therapeutic management .
Furthermore according to Pandit and Pandit supra 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. Though a doctor may not be in a position to save his patient’s life at all times, he is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him. Therefore, it is expected that a doctor carry out necessary investigation or seeks a report from the patient. Furthermore, unless it is an emergency, he obtains informed consent of the patient before proceeding with any major treatment, surgical operation, or even invasive investigation if even with this the spouse or family consent must be sought. Failure of a doctor and hospital to discharge this obligation is essentially a tortious liability. A tort is a civil wrong (right in rem) as against a contractual obligation (right in personam), a breach that attracts judicial intervention by way of awarding damages. Thus, a patient’s right to receive medical attention from doctors and hospitals is essentially a civil right which is enshrine in the 1992 Constitution. The relationship takes the shape of a contract to some extent because of informed consent, payment of fee, and performance of surgery/providing treatment, etc. while retaining essential elements of tort.
By the case of Ghana Highways Authority vs. Mensah stated that in establishing medical negligence the court looks out on these twofold test, namely: (a) whether the defendant owed a duty of care to the plaintiff; and (b) secondly, whether such duty was neglected leading to the injury complained of.

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Furthermore, quoting Pandit and Pandit with approval from the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down that when a doctor is consulted by a patient, the doctor owes to his 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 for negligence and the patient may on that basis recover damages from his doctor.

According to Opoku and Mensah, 2016 the impact of medical errors seems to burden stakeholders in health care in Ghana. Although, negligence and errors do occur, what is of concern is the rate at which these medical errors are increasing in health centers whiles physicians are providing medical services. As its purpose, the paper investigates perceptions and prevalence of medical negligence in Ghanaian health care. It investigates this issue within some leading hospitals in the Kumasi district of Ghana. The research involved a sample size of 80 respondents which included non-health care practitioners, legal practitioners and health practitioners, with interviews and questionnaire as research tools. Data obtained revealed that several factors in health care contribute to the occurrence of negligence in Ghana. Medical negligence irrespective of its form, according to over 85% of respondents, has adversely impacted health care in general.

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PROJECT OBJECTIVE.
The general objective of this project is to assess, and identify and provide solutions to medical negligence, clinical errors and physician liability in selected hospitals and clinics in the Greater Accra region of Ghana.

i. To deepen education on the legal relationship between medical errors and negligence.

ii. Educate the health practitioner about his or her liabilities.

iii. To select ten (10) hospitals and clinics in the greater Accra region and educate the health practitioners about medical negligence, clinical errors and physician liability.

iv. To educate the target audience on how to avoid medical negligence.

v. To help reduce medical negligence litigation

vi. To empower the target audience to institute internal medical negligence policies or control to deal with the matter internally.

vii. To suggest potential solutions to the problems of medical negligence, clinical errors and physician liability.