1. MEDICAL MALPRACTICE/NEGLIGENCE IN UGANDA. CURRENT TRENDS AND SOLUTIONS
BY JUSTICE GEOFFREY KIRYABWIRE

2. INTRODUCTION Increasing stories of medical malpractice in local press
Alleged victims of malpractice increasingly resorting to legal remedies
Medical and legal fraternity on verge of new experiences in the area of medical malpractice

3. Defining medical negligence
Negligence is a legal not medical term
Medical worker means
“…a health professional, administrative, scientific and support staff employed in the health service” (The code of Conduct and Ethics)
Negligence is a Tort i.e. a civil as opposed to a criminal wrong

4. Defining medical negligence
Ingredients of a tort
There must exist a recognised legal duty of care
There must have a breach of that duty of care
The breach of duty must occasioned loss, damage or injury
The loss, damage or injury was the direct or proximate cause of the breach of duty.

5. Duty of care
Equal to the level of a reasonable and competent health worker
To show from deviation of duty one must prove
A usual and normal practice
That a health worker has not adopted that practice
That the health worker instead adopted a practice that no professional of ordinary skill would have taken.

6. Duty of care
Final decision as to breach of duty lies with court and not the medical professional
Uganda Code of conduct and ethics provides
“ As a standard of behaviour and discipline for all health workers, it deserves the attention of every one to familiarise with it and adhere to the standards required of the service
Hippocratic oath do all medical workers take it?

7. Loss, injury or damage
Breach of duty must have been the direct or proximate cause of the loss, injury or damage
By proximate is meant
“…a cause which, in a natural and continuous sequence, unbroken by any intervening event produces injury and without which injury would not have occurred”

8. Loss, injury or damage
Generally he who alleges a malpractice must prove it.
Exception:- The Principle of RES IPSA LOQUITOR
“The facts speak for themselves”

9. Loss, injury or damage
Legal compensation for Loss, injury or damage comes in the form of
“monetary damages”
not suspension or deregistration of the medical worker.

10. Trends in the UK
Legal standards set in the UK courts are of persuasive authority to Ugandan courts
Standard since 1838 in UK is
“… a fair, reasonable and competent degree of skill…”
Not the highest degree of skill

11. Trends in the UK Institutional Vs. individual liability
Principle of vicarious liability –
“institutions are liable for the clear negligence of their staff”
It does not matter whether the institution provides a free or a paid service

12. Trends in the UK Medical misadventure does not amount to negligence
Duty to be available
Emotional negligence ?

13. Trends in the USA
In 2002 there were 18,999 medical malpractice payments in the USA
27% (i.e. a little under 1/3) of the patients who sued won their cases.

14. Trends in Uganda Questions as to informed consent
Application of the principle of Res ipsa loquitur – a question of level of complication of procedure?
Cases against nurses
Bulk of medical malpractice cases directed against Government not the medical workers.

15. Changing trends in Uganda
Growing awareness of patient rights
Unqualified personnel/impersonators
Growing number of private clinics and health centres

16. Emerging global trends
Human rights and public interest litigation in medicine
The right to health as an emerging human right?

17. The way forward & possible solutions
The creation of objective and well established standards of practice that are enforced as a means of self regulation
Defensive medicine?
Litigation + worried doctor = Defensive medicine

18. The way forward & possible solutions
The use of professional indemnity insurance and the establishment of medical defence unions
Good Samaritan legislation for medical emergencies?

19. Conclusion
Cases of medical negligence in Uganda are likely to increase in light of the changing trends in the country. There is now greater patient right awareness. There is need to enforce medical standards as means of avoiding an escalation of these case. Time has also come to protect medical workers from such situation with some form of indemnity insurance.

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