Appraising the legal and regulatory framework on medical negligence in Kenya

Abstract

The medical profession is one that is heavily regulated in Kenya. However, the cases of medical negligence are rampant and most offending medical practitioners go unpunished. There exists a regulatory and legal framework through which complaints against offending medical practitioners are handled. This research seeks to examine the efficiency of these frameworks and if there are improvements that can be made. This study found that the regulatory framework has extensive and multiple moving parts. Many of the statutory regulators each regulate only a sector of the medical professionals. For example, a nurse, a lab technician and a dentist will be governed by different regulators, each with its own set of rules. Moreover, most of them cannot even give orders on compensation to a victim and are mainly focused on the profession and the professional’s transgressions. This raises the issue of the proper forum for a victim to air a complaint when, in most cases, they are treated by a number of these professionals and are seeking damages for the injury suffered due to negligence. The legal framework, though it does have the power to award damages, is still using the ‘Bolam test’ and other English decisions to determine negligence without due consideration to emerging trends and jurisprudence in the area. Furthermore, in cases of criminal proceedings brought against a medical practitioner, there does not seem to be room for a victim to bring forth a civil claim for damages.There are emerging trends such as the use of new technologies, traditional remedies and even social media to diagnose and treat patients that are considered. This study essentially puts forth the idea of use of a key, super regulator with the powers to both punish the offending medical practitioner and award compensation to the victim of the medical negligence. The legal framework would need to consider the evolving nature of the medical care field as well as the jurisprudence around it, and act accordingly.