Resolving medical malpractice claims: a critical study of disciplinary proceedings in Kenya

Abstract

Medical malpractice is one area that is rife in Kenya and yet not well established in law, policy and practice. There is a disciplinary body, established by law that ought to be working on correcting this phenomenon. This research study sought to examine the efficiency of the disciplinary process for medical malpractice regulation in the country. What it found was that the law was inadequate in that it merely focuses on punishing the offenders and does not have provisions for ways in which the victim may be compensated or granted legal remedies. In addition, this study found that the Kenya Medical Practitioners and Dentists Board, tasked with representing the doctors and also regulating medical malpractice is marred by conflicts of interest as it is geared towards protecting the practitioners, its own peers, as opposed to the public. This study recommends that the medical profession no longer remain a self-regulated profession. At a time when many countries are moving away from placing both representative and regulatory roles in one body for good reason, it is only right that Kenya take the same path in order to rectify its disciplinary process. It also emphasizes on the need for a more victim-restorative oriented reform that seeks to suggest ways in which the victim can achieve the justice they need. Punishing the offender does not return them to the position they were in before the occurrence of the negligent acts. Very rarely do complainants leave the Board content. It is also necessary for the Kenya Medical Practitioners and Dentists Board to be more transparent in its operations. Majority of Kenyans are not aware that there is a body mandated to deal with their complaints on negligent actions by doctors and so they do not take action thereby providing more leeway for practitioners to get away with their misdeeds. This study essentially calls for an overhaul of the current malpractice system. The GoK 2010 paved the way for health reform in Kenya and now the public is more aware and expectant of the fulfilment of their rights, which must be upheld.