Dealing with professional negligence

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By Musyoki Kimanthi

Q: We have seen cases of clear professional negligence against doctors lately but the victims of the malpractice do not seem to get far in compensation claims as more often, the doctors’ umbrella body declares that there was no malpractice. Are those decisions by the professional associations final or can a victim succeed in a claim in court?

A: Professional associations are mostly non-profit organisations seeking to further a particular profession, the interests of the individuals engaged in that profession and the public interest.

These bodies generally strive to achieve a balance between two often-conflicting mandates. Though they are deemed to be protectors of the public by maintaining and enforcing standards of training and ethics in their profession, they also act like cartels or labour unions for the members of the profession, a description they commonly reject as false.

Conflict Of Interest

In certain dispute situations, like what the questioner seems to have in mind, the balance between these two aims may get tipped more in favour of protecting and defending the professionals than in protecting the public.

For example, in a dispute between a lawyer and his/her client or between a patient and his/her doctor, the Law Society of Kenya or the Medical & Dentists Practitioners’ Board will inevitably find itself plunged into a conflict of interest in its wish to defend the interest of the client, while also wishing to defend the interests, status and privileges of the professional.

It is normally a tough call for the professional organisation to do both.

Having stated the above, however, the courts are always open to make a determination in cases where negligence is alleged.

Professional negligence is a subset of the general rules on negligence to cover the situation in which the defendant has represented himself or herself as having more than average skills and abilities in a particular field of expertise, and the claimant has relied on the defendant’s such representation and suffered harm or loss as a consequence.

The usual rules of finding negligence apply. That is, that the defendant owed the claimant a duty of care, and that the defendant was in breach of that duty.

The standard test of breach of a duty of care in an ordinary negligence claim is whether the defendant’s actions matched the abilities of a reasonable person.

In professional negligence claims, the measure of the quality of the defendant’s conduct or services is against those actually delivered by those who claim to be among the best in their fields of expertise.

Thus, professionals providing services in a wide range of situations will be judged by the standards of those claiming to have the same set of skills and abilities.

Medical negligence claims differ from other litigation because the claimant must rely on expert medical evidence to establish all the major elements of liability.

Complicated Medical Claims

It is particularly difficult to pinpoint a doctor’s action as the sole cause of a claimant’s predicament because a claim of negligent treatment must be distinguished from the effects of the patient’s other underlying conditions, which gave rise to the need for treatment.

An example is where a doctor is blamed for administering the wrong drug on a patient who later dies, but it is established that the patient would have died anyway even without the doctor’s intervention.

To answer the question, the positions taken by professional associations in respect of claims brought by members of the public against their own members are no bar to filing a professional negligence claim in court.

However, inevitably these associations get sucked into these proceedings and they will most likely be inclined to protect one of their own.