Medical Negligence Uganda
Medical Negligence Uganda
Medical Negligence Uganda
ISSUES PAPER
NOVEMBER 2017
1
CONTENTS
PART ONE ........................................................................................................................................ 4
1.0 INTRODUCTION ............................................................................................................ 4
2
3.0 METHODOLOGY .......................................................................................................... 27
3
PART ONE
1.0 INTRODUCTION
In the medical world, patients consign their fate and life to doctors because they
blind-trust in the doctors’ knowledge and skills. And as such, society entrusts the
sacred duty of preserving the virtues of life and good health to the medical
professionals. Hence, only the most qualified individuals should engage in this
profession.1 Imbued with compelling, state interest, the licence to practice medicine
may at any time and for cause be revoked by the government.2’3 In addition to these
state checks and balances, doctors recognise and accept their great responsibility to
society and have time in memorial imposed upon themselves, self-regulating code of
discipline and ethical rules4 to govern their profession. As such, where a medical
professional fails to give due regard to the health and welfare of their patients as
governed by their oath and deviates from the normal practice of the profession,
Medical negligence has been defined by case law5 as “the omission to do something
would not do”. Black’s Law Dictionary 6 defines medical neglect as the failure to
1
Darwin P. Angeles, A Framework of Philippine Medical Malpractice Law, 85 PHIL. L.J. 895, p. 1 (2011)
2
ibid
3
Reyes vs. Sisters of Mercy Hospital, GR. No. 130547, 396 Phil. 87, 107, 2000
4
Hippocratic Oath
5
Blyth vs. Birmingham Water Works Co. 11 Ex 784
6 Bryan A. Garner, Eighth Edition, Thomson West, 2004, Page 1061
7 Centre for Health Human Rights and Development (CEHURD) & 4 Others Vs. Nakaseke District Local Government HCCS
No. 111 of 2012; Watsemwa & Anor. Vs. Attorney General Civil Suit No. 675 of 2006; Kayamugule & Anor. Vs. Attorney
General & 3 Others Civil Suit No. 285 of 2011
4
This study is intended to investigate medical negligence occurrences in Uganda and
This part of the study covers the background and situational analysis of medical
and services8 at the same time ensuring the protection of patient’s safety with regard
to health care procedures and facilities. Uganda has taken a number of steps towards
The Uganda’s health care system, aims at achieving and sustaining good health and
health services for its growing population. The health care system has been evolving
over the past 3 to 4 decades to handle emerging concerns and challenges within the
modern and traditional9 practices. Modern health care delivery is done through a
decentralized framework comprising of Health Centre II; III; IV; regional referral
hospitals, national referral hospital, faith based health facilities and of late the
emerging private health facilities. The District health structure is responsible for all
Hospitals.
Despite the above initiatives, cases involving medical negligence are a frequent
consequences such as death, injury and damage. For example, cases like Watsemwa
8 HEALTH SECTOR STRATEGIC & INVESTMENT PLAN 2010, Promoting People’s Health to Enhance Socio-economic
Development 2010/11 – 2014/15
9 This study will not make reference to traditional medical practitioners since they are not medical professional.
5
& Anor. vs. Attorney General10, Kayamugule & Anor. Vs. Attorney General & 3
Others 11 , Centre for Health Human Rights and Development (CEHURD) & 4
Others vs. Nakaseke District Local Government 12 , the media reported case
involving the famous Dr. Ssali, the director of the Women’s Hospital and Fertility
Centre with regards to the death of one Mercy Ayiru 13 and the death of Cecilia
frequencies and nature of cases related to medical negligence, with the view of
establishing the gaps in the system in order to propose legislative and non-
legislative interventions.
The legal framework relating to medical negligence is scattered in different laws and
policies. These include the 1995 Constitution15 of the Republic of Uganda; The Penal
Code Act, Cap 12016, The Allied Health Professionals Act, Cap 26817; The Uganda
15 Article 20 of the Constitution provides for the fundamental rights and freedoms of all individuals as inherent and is to be
respected, upheld and promoted by all organs and agencies of the government and by all persons;
Article 21 of the Constitution bars any form of discrimination in the delivery of economic and social rights.
Article 22 of the Constitution provides for the right to life.
National Objectives and Directive Principles of State Policy under Objective XIV, directs all organs of the state to fulfil the
fundamental rights of all Ugandans to social justice including access to health services that is to say basic minimum standards be put in
place for the enjoyment of health care.
16 Section 224 provides that a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical
operation upon any person for his or her benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the
operation is reasonable, having regard to the patient’s state at the time, and to all the circumstances of the case.
Sections 227 – 229 provide for criminal recklessness and negligence; that is to say, that any person who by rash or negligent act not
amounting to manslaughter, causes the death of another person is liable to imprisonment for a term not less than seven years or a fine not
exceeding seventy thousand shillings or both such imprisonment and fine; that any person who, in a manner so rash or negligent as to
endanger human life or to be likely to cause harm to another person gives medicine or surgical treatment to any person whom he or she has
undertaken to treat or dispenses, supplies, sells, administers or gives away any medicine or poisonous or dangerous matter commits a
misdemeanour.
17 Section 38 (1) provides that where the council receives an allegation which, if proved, would constitute a professional misconduct on the
part of a person registered under this Act, it may refer the matter to the disciplinary committee to hold an inquiry into the alleged
misconduct.
6
Medical and Dental Practitioners Act, Cap 27218; The Nurses and Midwives Act Cap
27419; The Pharmacy and Drugs Act Cap 28020 and The Uganda Medical and Dental
In addition to the existing legal framework, the government of Uganda has put in
place national strategies to guide policies and legislation formations on health care to
include National Development Plan (NDP), 21 from which the Second National
Health Policy (NHP II) 22 was informed. The process of reviewing policies and
legislation has been slow due to inadequate and limited financial and human
health regulatory framework such as the Health Professional Councils and the
legislation and policies at a cross road of serious challenge and thus contributing to
This study intends to identify and establish the lacuna in the existing legislative and
18 Section 33 of the Medical and Dental Practitioners Act provides that the council shall hold an inquiry where it receives an allegation
which, if proved, would constitute professional misconduct on the part of the registered practitioner under the Act and Section 47 (f)
provides that on conviction, a medical professional is liable to a fine of not less than three hundred thousand shillings and not more than
three million shillings or to imprisonment for not less than three months and not more than one year or to both.
19 Section 1 (i) of The Nurse and Midwives Act defines a midwife to mean a person who is trained and qualified in the care of women in
relation to childbirth and in the care of infants and who is registered or enrolled under the Act. Section 1 (k) further defines a nurse as a
person who is trained and qualified in the promotion of health, the prevention of diseases and the care of the sick and who is registered or
enrolled under the Act.
Section 28 (1) (c) The Act provides for the removal from the register or roll, after an inquiry, the name of any person, who is found guilty of
professional misconduct by the council19 or who is suspended from practice.
20 Section 15 of the Pharmacy and Drug Act provides for a disciplinary committee empowered to take disciplinary measure with regards to
the conduct of pharmacists. Section 16 (1) (b) of the Pharmacy and Drug Act specifically provides for disciplinary proceedings where a
registered complaint, is made against a pharmacist has been guilty of professional misconduct specified in the second schedule of the Act
which among many include knowingly supplying of addictive drugs contrary to Schedule 2 (10) and supply of substance ordinarily
requiring a prescription of a medical professional contrary to Schedule 2(13).
21
2010/11-2014/15
22
The Second National Health Policy, 2010, will provide direction for the Health Sector in the next medium to long term
period.
23
THE SECOND NATIONAL HEALTH POLICY; Promoting People’s Health to Enhance Socio-economic Development 2010,
Page 7
7
1.2.2 INTERNATIONAL AND REGIONAL INSTRUMENTS
human rights to which the right to health care is imbedded. These include the
The Convention on the Rights of the Child (CRC)26; The Convention on the Rights
Rights (ACHPR)28; Treaty for the establishment of the East African Community29;
Declaration.31
These covenants and declarations list down the steps to be taken by the state parties
to the maximum of available resources and with financial and technical assistance
and declarations creates an obligation upon Uganda and her development partners
to ensure that legal and institutional frameworks are in place to provide healthcare
within the minimum standards so as to protect its citizens against any acts that may
24Article 12(1) of the International Covenant on Economic, Social and Cultural Rights provides for the right to the highest attainable
standard of physical and mental health. UN DOC A/6316, 993 UNTS 3, entered into force 3 January 1976 and Uganda is a signatory.
25 Article 12 of the Convention provides that state parties shall take all appropriate measures to eliminate discrimination against women in
the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to
family planning.
26 Article 24 (1) of the Convention provides that State Parties recognize the right of the child to the enjoyment of the highest attainable
standard of health and to facilities for the treatment of illness and rehabilitation of health.
27 Article 25 of the Convention provides for the rights of persons with disabilities to health, including access to gender-sensitive health
services.
28 Article 16 (1) and (2) provides for the right to enjoyment of the best attainable state of physical and mental health and puts an obligation
and duty on State parties to the Charter to take the necessary measures to protect the health of their people and to ensure that they receive
medical attention when they are sick respectively.
29 Article 118 (b) of the Treaty enjoins partner states to cooperate in the area of health, in the management of health systems, drug policies,
harmonization of national health policies and exchange of information and promotion of research.
30 Article 25 (1) states that everyone has the right to a standard of living adequate for the health and well-being of himself or herself and of
his or her family, including ….and medical care and necessary social services.
31
The Declaration 31 reaffirms the commitment undertaken by the member states to reallocate 15 % of the national revenues toward
progressive achievement of access to health care in their respective countries. Adopted from the 11th Annual Report of The Uganda Human
Rights Commission Report of Parliament the Republic of Uganda Pg. 96
8
infringe their enjoyment of the right to health including incidence of medical
negligence.
However, all the above mentioned provisions places an obligation upon Uganda as a
member state to provide medical healthcare that meet the basic minimum standards
as a right for the citizens to enjoy the right to health and the breach of these
minimum standards are leading to the increase in reported medical negligence cases.
This study is intended to explore how these gaps can be addressed in the law by
Uganda. In addition such measures would be in line with and also further Uganda’s
ISSUES
negligence in Uganda?
2. Whether there is need for a specific and comprehensive legislation to cater for
Although the legal framework provides for redress in form of civil and criminal,
these laws are inadequate. For example, it is very difficult for a victim to prove
damages from the government. Statistics show that there exist incidence of wrongful
unreported.32
9
Under funding and staffing of health facilities has led to incidences of medical
This low ration34 has led medical professionals to work long hours and attend to
high numbers of patients which subjects them to fatigue and prone to errors that
standards for health care services has led to incidence of death, injury and damage
as a result of medical negligence. For instance, the growing number of cases before
The Uganda Medical and Dental Practitioner Council records over fifty complaints
against medical practitioners annually 36 and this goes to show that medical
negligence is a reality in Uganda and that the number of cases are increasing. There
are no known statistics of people who die resulting from incidences of wrongful
death, wrong diagnosis and surgery which may all be attributed to medical
negligence.37
There is lack of information as to the procedure to follow and the forum to lodge a
The governing and monitoring medical bodies exist however their feasibility is
There are increasing concerns in both medical and governmental circles over the
growing incidences of personal injury actions against doctors and over the cost to
33 Uganda Human Rights Commission, 14th Annual Report 2011 To the Parliament of the Republic of Uganda
34 The ratio of doctor to patient is 1:24,000; of nurse to patient is 1: 1,700; of midwives to patient is 1: 9,000; of dentists to patient is 1:
77,000; of lab technician to patient is 1: 16,000; of occupational therapist to patient is 1: 433,000; and of environmental health officer to
patient is 1: 27,OOO. Adopted from http://www.worldpolicy.org/blog/2016/02/09/uganda%E2%80%99s-sick-health-sector
35 Supra FN. 29
36 As per Dr. Katumba Sentongo, the Registrar of the Uganda Medical and Dental Practitioner
10
the health system of compensation of the victims. 38 According to a study conducted
in 2015, 2/10 hospital managers had received notification of intention to sue, 3/10 had
cases in court, 5/10 were before the Medical and Dental Professional Council 39.
Under funding and staffing of government health facilities are some of the key
attributes to acts and increasing incidences that lead to medical negligence. 40 The
(and previous years)41 to the health sector of 8.7 per cent are far below the Abuja
Under the Abuja Declaration, 2001, the government of Uganda is in default of its
commitments to allocating 15% of the national revenue to the health sector. This has
remuneration and welfare in the health facilities and limited health professionals at
the health units thus contributing to the increasing cases of medical negligence.
There are three social goals of medical negligence legislation and litigation to wit
include: - to deter unsafe practices by fostering patient safety and quality of medical
compensation for injury, and to exact corrective justice by creating accountability for
actions.43
38 Law and Medical Ethics, JK Mason, RA McCall Smith, GT Laurie, Sixth Edition, Butterworths 2002, pg. 271
39 www.openscienceonline.com/author/download accessed on 29th September 2017
40
Uganda Human Rights Commission, 14th Annual Report 2011 To the Parliament of the Republic of Uganda
41 Uganda Human Rights Commission 11th Report to Parliament of the Republic of Uganda, Pg. 96
42 Ministry of Finance, Planning and Economic Development, (Uganda) National Budget Framework Paper FY 2014/15 – FY
2018/19
43 Keeton WP, Dobbs DB, Keeton RE, Owens DG. Prosser and Keeton on the law of torts. 5 th ed. St. Paul, Minn.: West
Publishing, 1984
11
The Second National Development Plan (UNDP II)44 sets key four objectives to be
attained during the five year period of 2015/2020 of which enhancing human capital
service delivery are mentioned. The UNDP has set interventions upon which
quality of care and patient safety can be achieved. Among these are: - establishing
dynamic interactions and feedback mechanisms between health care providers and
The Uganda Human Rights Commission (UHRC) reported that most patients who
The UHRC recommended that Parliament should make laws that are compliant with
citizens’ economic, social and cultural rights.46 The study seeks to explore legislative
facilities.
The inadequacies in the current legal framework, has left victims of medical
Common Law upon which a victim may recovery compensation for medical
impacts upon each victim differently depending on their circumstances. This study
is intended to establish specific legislation that will provide for certainty and
44 SECOND NATIONAL DEVELOPMENT PLAN (NDPII) 2015/16 – 2019/20. Uganda Vision 2040 “A Transformed Ugandan
Society from a Peasant to a Modern and Prosperous Country within 30 years”
45 Ibid
46 Uganda Human Rights Commission, 11 th Annual Report to the Parliament of the Republic of Uganda, Pg. 99
12
Medical negligence has far reaching implications on health care facilities,
government and the patient. Medical negligence increases the cost of medical care,
the cost spent on compensations by government and heath cares facilities, and
generally erodes patient confidence in the health sector. The study will seek to
explore interventions that will address these challenges and build confidence among
patients.
Objective XX under the National Objectives and Directive Principles of state Policy,
as stipulated in the 1995 Constitution enjoins the state to take all practical measures
to ensure the provision of basic medical services to the population. Conducting this
study and formulating relevant policy and legislative proposals will contribute to
regard to health care. Therefore developing proposals for legislation for medical
negligence would provide clarity and certainty for the medical professionals and the
public at large.
Uganda;
negligence in Uganda.
13
1.6 SCOPE OF THE STUDY
The study will investigate issues relating to medical negligence in Uganda and will
draw best practices from other jurisdictions for purposes of making comparative
The study will consider principles of medical negligence; medical ethics; medical
consent; duties of the state; duties of medical professionals; rights of patients; civil
negligence.
This is a national study and it will be conducted in the four geographical regions of
Kayunga) and Northern (Lira). The selection of these study districts has been guided
14
PART TWO
2.0 INTRODUCTION
This part of the paper will discuss the various aspects of medical negligence with a
view of identifying the key issues for determination by the medical negligence
taskforce and other actors. These issues will subsequently inform the policy and
legislative initiatives and interventions. This chapter provides an insight into: - the
concept of medical negligence; the need to address medical negligence; factors that
determine medical negligence (i)- the doctor patient relationship ; how medical
negligence occurs (ii) the breach of the specific duty of care and standard of care; (iii)
liabilities under medical negligence, (a) personal liability (b) vicarious liability,
aims at compensating a claimant who has suffered pain and or financial loss by
suing the wrongdoer. The tort of Negligence was developed by the House of Lords
in Donoghue vs. Stevenson where court affirmed the neighbour principle. Lord
"The rule that you are to love your neighbour becomes in law you must not injure
restricted reply. You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour. Who then in law is
my neighbour? The answer seems to be persons who are so closely and directly
affected when I am directing my mind to the acts or omissions which are called in
question."
15
Case law has defined medical negligence as, the omission to do something which a
reasonable man would do, or doing something which a reasonable man would not
do.47 Medical Negligence therefore relates to the failure or deviation from medical
Medical negligence is built and premised on this principle of the tort of negligence
generally, save that the standards of proof is higher than in other ordinary cases of
negligence.
Medical negligence occurs where a medical professional (1) owes a duty of care to a
patient, (2) that duty of care is breached (3) the breach caused injury, damage or
death, and (4) that injury, damage or death is as a result of the breach of that duty.
The patient has a duty to prove fault on the part of the medical professional
47 Blyth Vs. Birmingham Water Works Co. (1856) 11 Ex 781; 156 ER 1047
48 Indian case
49 Dr T. Thirumoorthy, Understanding Medical Negligence and Litigation – Basics for the Medical Professional
16
2.2.2 TO CREATE ACCOUNTABILITY FOR ACTIONS
Research indicates that a patient’s prime decision to sue is largely based on patient
dissatisfaction50and medical professional communication and interpersonal skills. 51
Theoretically, lawsuits deter medical professional from negligent acts and omissions
in the performance of their tasks by serving as a reminder to those who wish to
avoid the emotional and financial costs of litigation that they must take care.52
However, there has been less empirical scrutiny of the performance of the
malpractice system as a means of deterring substandard care than there has been of
its record as a mechanism for proving compensation. 53 Legal deterrence is a
notoriously difficult phenomenon to measure 54 and as such, legislative measure
alone may not necessarily deter medical negligence.
necessary precautions to provide safety and quality services for the patients. A study
improving clinical practice, as the health workers become more attentive to the
quality of care offered;55 this has improved the quality of healthcare by making the
practitioners liability and the rights of patients with regards to ensuring safety and
Health58 that:
50Hickson GB, Frederspiel CF, Pichert JW, Miller CS, Gauld-Jaeger J, Bost P. Patient complaint and malpractice risks. JAMA
2002; 287:2951-7
51
Levinson W, Roter DL, Mullooly JP, Dull VT, Frankel RM. Physicians-patient communication: The relationship with
malpractice claims among primary care physicians and surgeons. JAMA 1997;277:553-9
52 Shavell S. Ecomonic Analysis of Accident Law. Cambridge, Mass.: Harvard University Press, 1987
53 David M. Studdert, LL.B., Sc.D., M.P.H., Michelle M. Mello, J.D., Ph.D and Troyen A. Brennan, M.D., J.D., M.P.H. Medical
Malpractice. Health Policy Report: The New England Journal of Medicine, 2004
54 Schwartz GT. Reality in the economic analysis of tort law: does tort law really deter? UCLA Law Rev 1994; 42:377-444.
55 Eva Gakumba Kadimba, Simon Peter Katongole, Everd Maniple Bikaitwoha. Medical Litigation in Hospital in Kampala,
Uganda. International Journal of Public Health Research. Vol. 3, No.5, pp. 204-208.
56 ibid
57 ibid
17
“It is so easy to be wise after the event and to condemn as negligence that which was
only a misadventure. We ought always to be on our guard against it, especially in the
cases against the hospital and doctors. Medical science has conferred great benefit on
mankind, but these benefits are attended by considerable risks. We cannot take the
benefits without taking the risks. Every advance in technology is also attended by the
risks. Doctors, like the rest of us, have to learn by experience; and experience often
teaches in a hard way. Something goes wrong and shows up a weakness and then it is
put right”.59
medical negligence claims, where the courts of law step in to provide compensation
providers are not bankrupted by a single large pay-out and thus resources are
The purpose of this study, is merited that a medical negligence legislation would
improve medical standards, doctor patient relationship and health service delivery
systems thus meeting the patient’s expectations within the medical profession in
Uganda.
The relationship between a doctor and a patient is a special one, when a patient is
admitted to any health facility; a relationship based on the duty of care principles is
created. Duty refers to the standard of behaviour which imposes restrictions on ones’
59 Ibid at p. 137
18
conduct60. In the medical professional-patient relationship, a duty is imposed on the
medical professional to use the same level of care that any reasonable competent
medical professional would use to treat a condition under the same circumstances. 61
doctor or the health facility is expected to provide medical treatment with all the
knowledge and skill at their command and that they will not do anything to harm the
attitude to either them or their staff. Through a doctor may not be in position to save
a 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
Therefore once a doctor voluntarily decided to treat a person or come to their aid, he
or she becomes liable for any damage, injury or loss that results from any negligence
established, the doctor owes the patients a duty of care and treatment with that
professional) has been discussed in case law going back as far as 1838 where Tindall
CJ in the case of Lanphier V Phipos63 states that “every person who enters into a
learned profession undertakes to bring to the exercise of it a reasonable degree of skill and
60 Flores Vs. Pineda, G.R. No. 158996, 571SCRA 83, Republic of the Philippines
SUPREME COURT, 2008
61 Cayao-Lasam, 574 SCRA 439, 454, December 18, 2008
62 Medical Negligence: Coverage of the profession, duties, ethics, case law and enlightened defence: Legal Perspective.
19
care. He does not undertake, if he is an attorney that at all events you shall gain your case,
nor does a surgeon undertake that he will perform a cure nor does he undertake to use the
highest possible degree of skill. Hence if a person holds himself out as possessing special skill
and knowledge, by and on behalf of a patient, he owes a duty to the patient to use due caution
or a man of high skill in his calling. McNair J discussed the standard of duty of care
“the test is the standard of the ordinary skilled man exercising and professing to have
that special skill. A man need not possesses the highest expert skill at the risk of being
ordinary skill of an ordinary man exercising that particular art.” Hence in the case
Therefore a doctor can only be held guilty of medical negligence only when he falls
who follows the standard practice of his or her profession or at least follows
profession.67
67 Law and Medical Ethics, Mason &McCall Smith Fourth Edition Butterworths pg.199
20
loss, injury or damage. To show deviation from duty of care, one must prove the
following; that there was a usual and normal practice, that the medical professional
has not adopted that practice, that the medical professional instead adopted a
practice that no professional or ordinary skilled person would have taken68 and as a
Anor.69 court laid down three medical legal principles on duties that govern doctor-
patient relationships; stating that when a doctor is consulted by a patient, the duty of
care includes: a) a duty of care in deciding whether to take the case, b) a duty of care
treatment. The breach of any of these duties may give rise to a cause of action for
medical negligence.
with the practice accepted as proper by a responsible body of medical men and
women skilled in that particular art and neither can he or she be held negligent if he
or she is acting in accordance with such a practice merely because there is a body of
2.3.5 CAUSATION
Causation is the relationship that must be found to exist between the acts of the
doctor and the damage, injury or loss to the patient in order to justify a cause of
action for negligence and meriting compensation. The breach of the duty of care
must have materially contributed to the injury, damage or loss and or it is more
likely that the damage, injury or loss was due to the negligence than any other cause.
68 Supra at FN. 44
69 AIR 1969 SC 128 and AIR 1989 SC 1570
70 Bolam Vs. Friern Hospital Management Committee [1957] 1 WLR 582
21
The patient therefore must prove that the breach of duty on part of the doctor caused
the patient to suffer damage injury or loss which he or she otherwise could not have
suffered. In other words the patients could not have suffered the damage, injury or
loss if the doctor had provided the correct standard of care based on the skills of that
doctor unless he is able to prove that the damage, injury or loss he or she has
Courts have consistently reaffirmed that the general test for causation is that, which
requires the injured party to show that the damage, injury or loss would not have
occurred “but for” the negligence of the doctor. Court in the case of McGhee vs
National Coal Board72 stated that liability will be imposed if it can be established
that the negligence of the defendant materially increased the risk of the plaintiff
probabilities that the defendants act was a necessary cause of his or her damage,
injuries or loss and the onus of proof lies on the plaintiff or one who claims to be
injured.73
phenomenon, the principle of “res ipsa loquitor” a Latin phrase which means “the
facts speak for itself”, applies. Such a situation would apply to procedures performed
on the wrong limb or side and if damage occurs from that, then causation is assumed
to have been established unless the defendant can show that there is another
reasonable explanation.
22
ISSUES
negligence is feasible?
2.3.6 COMPENSATION
Claim for damages is based on the principle that if a person has committed a civil
plaintiff74 who has suffered injury is entitled to damages for pain and suffering and
compensate the plaintiff for the losses, by either awarding pecuniary and non-
pecuniary damages as compensation for the defendant’s tort. More specifically, the
respectively.
The general principle as derived from the words of Lord Blackburn76 in Livingstone
Vs Rawyards Coal Co. “that the sum of money which will put the party who has been
injured or who has suffered in the same position as he would have been in if he had not
the principles apply to losses which are capable of reasonably precise calculation in
sense of providing the plaintiff with some solace for his or her misfortune. 78 As such
the guiding principle can be expressed only in such vague terms as awarding what is
74 Black’s Law Dictionary defines a plaintiff to mean a party who brings a civil suit in a court of law. Page 1188
75 Winfield and Jolowiz on Tort 11th Edition at page 600
76 (1880) 5 App. CAS 25,29
23
Special damages; are particular damages which results from specific circumstances
of the case and of the plaintiff’s claim to be compensated for, which the plaintiff
ought to plead for them in his pleadings so as not to raise surprise claims at the
trial.79 Hence special damages must be specifically pleaded and proved. They must
be explicitly claimed on the pleadings and at the trial, it must be proved by evidence
both that the loss incurred and that it was the direct result of the defendant’s
need for further medical care, the disabilities, and pecuniary losses (past and future)
are special damages which must be pleaded.81 As such the guiding principle can be
expressed only in such vague terms as awarding what is “fair” and “proper”.
General damages; for general damages, the law presumes to flow from the wrong
complained of and which need not be specifically pleaded though they should be
averred that such a person has suffered damage.82 General damages are awarded on
the notion that there is no medium exchange of happiness and no market for
philosophical and policy exercises more than a legal or logical one. The award must
be fair and reasonable, fairness being gauged by earlier court decisions. Money
cannot provide true restitution, however it can provide for proper care and this is
the paramount concern of the courts while awarding damages for personal injury as
there must be adequate future care. The sheer fact is that there is no objective
yardstick for translating non pecuniary losses such as pain and suffering and loss of
amenities into monetary terms. There general damages are awarded at the discretion
of the court.
ISSUES:
82 Clerk and Lindsell on Tort, Sweet & Maxwell, 16 th Edition, Page 253
24
2. Whether the current compensation system can accommodate instalments
payments to claimants?
3. Whether the current compensation system through the Ministry of Justice and
person. As a result if a person suffers any of its impact, the person affected should be
in position to claim and recover from the person/ health facility which is responsible.
In instances of injury, harm or damage to a minor, the minor can be able to sue and
In cases of death of the victim, the administrators or executors can sue and recover.84
liability. Personal liability is the liability for damage caused to others by the breach
of one’s duty of care.85 Thus where a medical professional breaches his duty of care
Vicarious liability is when the law holds one person responsible for the misconduct
of another. 86 This does not mean that that person is deemed to have done the
wrongful act; it only means that the person is answerable in law for the wrong of the
25
employer through guilt of no fault himself is liable for damage done by the fault or
ISSUES
an employee?
may start a legal claim for compensation. It has been public policy that where a
wrong has been done to another, there should be a period after which the alleged
wrongdoer ought to be free from the threat being made against him.89 It would be
wrong to allow such a threat to hang over a medical professional forever as no one
should remain under threat of being sued indefinitely 90 because the law likes
ISSUES
period?
negligence?
3. When does the limitation period start to count under medical negligence?
88
Lord Reid in Staveley Iron& Chemical Co Vs. Jones Ltd (1956) 1 ALLER 403 at 409
89
Mills and Reeve, Briefing on Medical Malpractice and the Limitation Act 1980, October, 2013.
90
Clerk and Lindsell on Tort 16th Edition, Sweet and Maxwell page 141.
26
PART THREE
3.0 METHODOLOGY
proposals.
Medical Bureau, Health Initiative for the Private Sector, patients, patient
27
carers and any other selected duty bearers including media practitioners,
due to the uniqueness of this study. While for quantitative data will be done
randomly. The use of random sampling will aid the study in the collection of
general views that have a bearing on the subject matter. In addition, the
study population.
negligence reported
iv. The media are specifically targeted because there are a number of
against their hospitals, the files of medico- legal cases reviewed and the
28
fate of the patients, health workers and effects of litigation on the
hospitals.
data too will be collected. Qualitative data will be collected using individual
with the interviewees. The purpose is to allow the researcher to probe their
attitudes, beliefs, desires, and experiences with people who are equipped with
to the cause and effect. The use of this approach will enable the researchers to
researchers to learn about the activities of the people and can tell whether or
not what they are collecting are facts or not. Hence the researchers will be
expected to note down all phenomena observed that their judgments will add
29
3.3.3 TASKFORCE GROUP
This will constitute a selected a group of persons with subject matter expertise
and knowledge. Their role is to provide valuable expert opinion and technical
on the fact that they have relevant subject matter expertise, and time and
the participants on the field findings and consensus will be built on the
decided court cases both from common law countries and other jurisdictions
30
vi. Benchmarking consultations
3.5 DELIVERABLES
i. Concept and Issues papers
ii. Minutes/briefs
31
BIBLIOGRAPHY
LEGISLATION
TEXTBOOKS
1. Black’s Law Dictionary Bryan. A. Garner 8th Edition, Thomson West, 2004.
32
3. Winfield and Jolowicz on Tort, 11th Edition. Sweet and Maxwell.
4. Law and Medical Ethics, Mason & McCall Smith, 4th Edition, Butterworths 2002.
Willmott.
2. Mills and Reeve, Briefing on Medical Malpractice and the Limitation Act 1980
October 2013.
3. Medical Negligence: Coverage of the profession, duties, ethics, case law and
enlightened defence: Legal prospective M.s Pandit and Shobla Pandit, Indiana
Journal 2009.
5. Dr. Sylvester Onzivua’s Article reported in the Sunday Monitor dated April
23rd 2017.
6. Dr. Sylvester Onzivua’s Article in the Sunday Monitor Newspaper dated May
14th
REPORTS
33
3. Ministry of Finance, Planning and Economic Development (Uganda) National
5. Uganda Human Rights Commission 11th Annual Report to the Parliament of the
Republic of Uganda.
6. Uganda Human Rights Commission 14th Annual Report to the Parliament of the
Republic of Uganda.
CASE LAW
1. Donoghue Vs Stevenson (1932) AC.
4. Dr. Laxman Balkrishnasoshi Vs Dr. Trimbark Baba Godbole & Anor AIR 1969
5. Dr. Subramanyam and Anor Vs Dr. B.Krishna Rao and Anor II (1996) 233
(NC)
12. Watsemwa & Anor Vs Attorney General Civil Suit No.675 of 2006.
13. Kayamugule & Anor. Vs. Attorney General & 3 Others Civil Suit No. 285 of
2011.
34
14. Centre for Health Human Rights and Development (CEHURD) & 4 others Vs
15. Centre for Health Human Rights and Development (CEHURD) Vs The
16. Joseph Musoke Vs Departed Asian Property Custodian Board & Anor Civil
17. Stavelley Iron & Chemical Co Vs Jones LTD (1956) 1 ALL ER 403.
18. Flores Vs. Pineda, G.R. No. 158996, 571SCRA 83, Republic of the Philippines
19. Cayao-Lasam, 574 SCRA 439, 454, Republic of the Philippines SUPREME
INTERNET SOURCES
1. http://www.worldpolicy.org/blog/2016/02/09/uganda%E2%80%99s-sick-
health-sector
2. https://www.indepedent.co.ug/medicalnegligence/
2017
4. https://www.cehurd.org/2011/10/the-sick-hospital-system-in-uganda accessed
5. http://lawbrain.com/wiki/Negligence
6. www.encyclopedia.com/social-sciences-and-law/law/law/negligence
7. https://www.cehurd.org/2011/10/the-sick-hospital-system-in-uganda accessed
8. http://www.monitor.co.ug/News/National/Dr-Ssali-acquitted-of-patient-s-
9. http://www.alllaw.com/articles/nolo/medical-malpractice/negligence.html as
at September 2017
10. www.alllaw.com/articles/nolo/medical-malpractice/negligence.html
35