YES, YOU SUE A HOSPITAL FOR NEGLIGENCE CAUSING DEATH.
BY JOSEPHINE LUZIGE
The world since December 31, 2019 was caught unaware and has since experienced the COVID 19 pandemic whose such ravaging effects have amassed global attention, with every continent recording fatal casualties and thus deploying their best known medical practitioners and experts to ensure preservation of life and reduce transmission of the virus..
Needless to say, in the face of such a pandemic whose cure remains the talk of the unascertainable future, millions of patients and the general public all over the world have consigned their faith, hope and lives to doctors and other medical practitioners in the fight against COVID. They blind trust in the knowledge and skills of these health service providers to excogitate solutions to the pandemic. They still entrust the sacred duty of preservation of the virtue of life and good health to these medical practitioners.
While it is notoriously known that death has always been the will and plan of God and that it is up to a supreme spiritual being that it happens, in a pandemic situation especially in Uganda Ugandans need to be aware that medical malpractice and negligence can suffice as a ground reason for death and injury. Medical practitioners have been at the front line of the war against COVID-19 and while there is expectation that they will duly exercise their duties as expected, there are instances when both medical practitioners and institutions could be a judged as negligent in the pandemic situation which in the law is described as medical malpractice
Medical malpractice occurs when a hospital, doctor or other healthcare professionals through negligent actions or omissions cause an injury to a patient which in some instances could result to death. While statistics in Uganda show that incidences of wrongful deaths or wrongful diagnosis and surgeries as a result of medical negligence go unreported and rise each day, Uganda still remains amongst the many jurisdictions with minimal medical malpractice suits yet shockingly with the highest complaints about deaths arising from poor dispense of medical services.
Ugandans need to be aware that in exercise of their profession, medical practitioners and doctors compulsorily owe an established duty of care to all patients. This means that a medical practitioner is under professional duty not to be negligent to the health demands of any patient and is expected to offer the required medical services and guidance to save his or her life .Not even the upsurge in demand for health services in a pandemic situation can excuse or justify the breach of this duty of care which can result in any harm or injury being done to a patient. These professional standards are set out in various laws like the ethical rules of doctors. This duty of care is encapsulated in the Uganda Medical and Dental Practitioners Act that also establishes a Council whose mandate is to take firm and fair disciplinary sanctions against practitioners who behave unethically in the course of their work. The code of professional ethics is a legal document which is derived from section 34 of the Medical and Dental Practitioners Act and it’s implementation has full legal force in Uganda.
The constitution of the republic of Uganda under Article 21 forbids any form of discrimination on grounds of religion, age, sex. It is important to note that under Rule 5 of the code of professional ethics, a practitioner is expected not to discriminate in The management of patients basing on similar grounds mentioned in the constitution or based on any other indication of vulnerability like financial position. Further-still, under Rule 8, a practitioner shall not deny emergency treatment or health care services to a patient.
Ugandans should be less than discouraged from instituting suits involving medical malpractice in the face of COVID-19 since there have been a plethora of successfully decided cases under the same docket like Watsemwa & Anor Vs Attorney General, Kayamugule & Another Vs Attorneu General & 3 others, CEHURD& 4 others Vs Nakaseke District Local Government where are the media reported cases involving the famous Dr. Ssali, the Director of women’s hospital and fertility center with regards to death of Mercy Ayiru and Cecelia Nambooze at Mbale hospital
It is therefore important that while Ugandans continue to appreciate medical practitioners and have even branded them the most essential workers in the face of the pandemic, they should be aware that these practitioners all owe them a duty of care and once not respected any Ugandan can successfully sue such a hospital or medical practitioner for negligence causing injury damage or death because not all deaths are the plan of God, but most also result from the negligence of medical workers!
The author is an immigration lawyer in Uganda, Kampala.
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