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Professional negligence is killing our people, we must stop it

Catherine Achayo Mbandu died aged 29 on February 20, 2022. [Courtesy, CITAM Church]

My heart was greatly pained this past week as I sat in the funeral service of a 29-year-old daughter of one of our pastors. She was involved in a grisly road accident at the railway bridge on Ngong Road Nairobi two Sundays ago.

She and three others – including two Canadians died on the spot, while two others are still fighting for their lives in critical condition in hospital. The situation was that they did not realise that, whereas this section of the road has three lanes, the outer lane comes to an abrupt end leading straight into a gorge. Their vehicle missed the bridge and plunged down into the deep gorge with the railway line below.

What is so sad is that in spite of this obvious danger posed to motorists, there was no warning sign or guard rails to protect a vehicle from plunging into the deep gorge. And so, these four young people met unwarranted deaths. Furthermore, while we were waiting for the girl’s trapped body to be retrieved, the police on-site and some neighbours told us that this was not the first such accident at this spot. Several other vehicles had plunged into the railway line below.

The truth is that this was a clear case of professional negligence on the part of the contractor and the supervising engineer. It is curious that two days after the accident, the road was appropriately marked, and guardrails mounted. Some have speculated that the speed with which this was done may have been triggered by the fact that there were foreigners involved in the accident. Whatever the case, one wonders why it had not been done earlier, to prevent unnecessary loss of lives.

In some jurisdictions, professional negligence is a serious crime that is punished severely. Doctors, lawyers, engineers, auditors, and members of every other profession are held to account for the quality of professional services they render. If and when things go wrong, they can face serious sanctions from their professional bodies, or pay hefty fines and compensation charges. In places like the USA, even the clergy are responsible for the advice they give to those who come to them for counselling.

A wreckage of a vehicle that was involved in an accident along Ngong Road in the wee hours of February 20 killing four people onboard among them two Canadians, at Karen Police Station in Nairobi, on Tuesday, February 22, 2022. [David Njaaga, Standard]

The consequence is that almost all professionals in these jurisdictions, including the clergy, take utmost care in their delivery of services. They do all they can to not only give their clients value for money but also avoid careless mistakes. Of course, because of the hefty penalties, professionals also take indemnity insurance policies to cushion them against such eventualities.

What is so unfortunate is that in our context, professional negligence is often simply shrugged off as an unfortunate occurrence. If a doctor prescribes a wrong medicine that escalates your sickness, or takes off the wrong limb, or mishandles the birth of your baby; if an architect or engineer fails to closely supervise a building which eventually collapses; or if a school fails to register your child for a national exam; or a road contractor leaves a gaping hole on the road that causes accidents, what do we do?

In most cases we simply lament and move on, or it becomes a national drama and a social media entertainment which soon fades into oblivion, leaving the victim to bear the pain and consequences. Those who choose to take any action, especially litigation, soon find that the process is more stressful than the trauma already suffered.

In a 2008 case, a Kenyan court ruled that to prove professional negligence, one has to call evidence that the professional conducted themselves with less than the competence, diligence, and skill expected of an ordinary professional in their field. This may require a fellow professional to testify that indeed there was negligence. This is no mean feat as there seems to be an unwritten agreement among professionals never to testify against fellow colleagues.

What is sad is that while we fumble and tumble over the matter of professional negligence, many Kenyans continue to suffer at the hands of quacks, the careless, and the outrightly fraudulent mercenaries. We must, therefore, appeal to professionals and all service providers to pursue excellence and exercise diligence in all that they do. Otherwise, the blood of our Pastor’s daughter will have been spilt in vain.

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