Professionalism is on edition here! Professionalism is on account here! Professionalism is on duty here! Often times, the most sensitive professional works or services are carefully spoken of, and are deemed as so sensitive to inquire into its alleged mistakes which eventually may actually turn out to be palpable malpractice so unforgiving in the eyes of the relevant laws of the land (here, Ghana law). Such mistakes have found their descriptions and elements to encompass what could be elucidated as negligence occasioned by lack of professional conduct other than mere mistake or unforeseeable mistake.
Of such services is the medical field, which this article has found it necessary to draw the energies of the author for discussion – it has been a path which is least discussed in terms of professional negligence in the medical field where there has been wrong diagnosis, wrong prescription of medication, inaccurate surgery, and all its attendant mistakes that may well be associated to the medical field.
The article has in mind the questions and woes that debate the minds of the ordinary Ghanaian and the patients who may not have the courage to ask the necessary questions to seek the required answers – which questions are already reposed in their souls.
THE ITCHING MEANING OF MEDICAL NEGLIGENCE
Per Act 29[1] of the Ghanaian Law, by the reading of section 82 offers explanatory inroad into what medical negligence is – “A person who in good faith, for the purposes of medical or surgical treatment intentionally causes harm to another person which, in the exercise of reasonable skill and care according to the circumstances of the case, is or ought to have known to be plainly improper, is liable to punishment as if the harm had been caused negligently, within the meaning of this Act, and not otherwise.”
Medical negligence has been given a treat reading from the provision above to house the elements of – intentionally causing harm to another (a patient who purposefully sought medical or surgical treatment) but received the uninvited lack of reasonable skill and plain (clear) improper (unprofessional) treatment resulting in medical harm to the person (patient). This is medical negligence.
The special provision as to medical or surgical treatment illustrates a pictorial example as follows: “A surgeon, through gross negligence, amputates a limb where the necessity to amputate did not arise. The surgeon…is liable to be convicted of having negligently and unlawfully caused harm.” The necessity to take a surgical decision, from this illustration, ought to arise from reasonable skill, duty of care, actual proper assessment of the circumstances and must not result in harm or damage to the patient. The thorny question is, is this always the case with the surgeon, the doctor, the pharmacist, the nurse, the lab technician, the dentist, chiropractors, hospitals? The news bombarding the general public suggest that the answers are largely in the negative. It does not however undermine the great works in the medical field in Ghana which have benefited thousands and millions of Ghanaians. However, as accentuated in the prelude, – Professionalism is on edition here! Professionalism is on account here! Professionalism is on duty here! I draw the readers attention to heart-rending examples already published for public consumption for the past ten or fifteen years to date. Stay with me. I will shake your mind on the examples soon after dealing with other areas in the journey of this article.
Forbes Newsletter[2], Christy Bieber stated that, “Medical errors are the third leading cause of death in the United States and account for more than 250,000 annual deaths, according to recent reports. Sadly, many of these errors are the result of medical negligence that occurs when medical providers fall short of fulfilling their professional obligation. If a medical provider harms you, you have a legal right to pursue a claim for compensation. But you need to know the medical negligence definition and how malpractice claims work.” It might not be far different from the cases in Ghana regarding the mammoth deaths that medical negligence has caused which remain largely undiscussed and uninterrogated deeply and widely.
INSTANCES OF MEDICAL NEGLIGENCE
Christy Bierber, J.D.,[3] also made the understanding of medical negligence simple by stating thus, “In most personal injury claims, negligence is defined as a failure to behave with the same level of caution a reasonably prudent person would have exhibited. But, a different standard of care applies to certain professionals, including healthcare workers. Medical care providers are expected to provide care that is on par with what a similarly trained professional would have offered under the same circumstances. If a caregiver’s actions deviate from the accepted medical standard, this is considered medical negligence. Omissions can also be considered medical negligence as well. If a similarly trained physician would have acted under the circumstances and the provider in question failed to act, that could constitute medical negligence.” Reading this in tandem with Ghanaian Law, Act 29, section 82 gladly marries the understanding of medical negligence according to Christy Bierber, J.D. She explicated further that whenever a healthcare provider’s acts or omissions fall below the level of care a similarly trained professional would have offered, this failure fits within the medical negligence definition. She graciously made telling examples look as graphics as the following –
Misdiagnosis, such as diagnosing a person with irritable bowel syndrome when they really have ovarian cancer. Failure to diagnose, such as missing the symptoms of serious heart disease. Failure to perform or order appropriate medical testing. Failure to adequately monitor a patient. Anaesthesia mistakes. Improper administration of medication. Improper prescribing of medication. Failure to obtain informed consent. Improper use of medical devices. Incorrect treatment. Botched surgical procedures. Leaving a surgical instrument inside of a patient.
Oh mine, are these examples short of the data gathered in the various newsletters in the Ghanaian media about the ordinary Ghanaian who submits his or her body based on trust of medical professionalism? Nay!
The patient may suffer personal injury as result of the direct cause of the harm occasioned by medical negligence. This brings in the element of compensation which must be well tailored by the patient through prosecuting his case on the basis that –
A duty of care was owed him as a patient. The services of the medical professional fell short of the standard of care required. The harm was directly caused by the medical negligence. Damages were suffered by the patient. The damage can be compensated for (can include payment for: Treatment that was paid for that was not necessary; Medical bills you incur as a result of the medical negligence; Loss of wages; Pain and suffering; Emotional distress; Wrongful death damages including loss of the deceased’s income and companionship).
The patient, however, should not put the cart before the horse. Not all misdiagnoses are categorised as medical negligence. Christy Bierber, J.D.,[4] paints a panoramic view of this example beautifully thus, “If a doctor misdiagnosed the flu, this could be medical negligence. But, if the patient recovered in a week with no lasting harm, this would not give rise to a medical malpractice claim. There would be no resulting harm caused by the medical negligence that the patient could be compensated for.”
GENERAL MEDICAL NEGLIGENCE VERSUS GROSS MEDICAL NEGLIGENCE
Under section 82[5], gross medical negligence is considered as a negligence in medical or surgical treatment that completely disregard life and limb. Section 12 of Act 29[6] states that a person causes an event negligently, where, without intending to cause the event, that person causes it by a voluntary act, done without the skill and care that are reasonably necessary under the circumstances. Under section 51 of Act 29, where the negligence amounts to reckless disregard for human life, it is medical negligence.
The authors, George Benneh Mensah, Alfred Addy, Victor Kwaku Akakpo[7] elucidated that, “Contextually, on the basis of the Ghanaian Criminal and Other Offences Act, it is construed that a medical or surgical treatment that leads to death of the victim is considered as a “medical or surgical manslaughter.” Section 51 of Ghanaian Criminal and Other Offences Act7 provides: “Whoever causes the death of another person by any unlawful harm shall be guilty of manslaughter. Provided that if the harm causing death is caused by negligence, he shall not be guilty of manslaughter unless the negligence amounts to a reckless disregard for human life.
…
While the gross medical negligence is presumed or deemed to have occurred when a medical or surgical treatment or procedure is undertaken without regard to human life, that of medical negligence is deemed to have occurred without the medical practitioner’s intending to cause such event or a voluntary act undertaken without recourse to such skill and as reasonably to be observed in such circumstances that required such skill or reasonableness. This is rightly provided by section 12 of the Ghanaian Criminal and Other Offences Act: “A person causes an event negligently if, without intending to cause the event, he causes it by voluntary act, done without such skill and care as are reasonably necessary under the circumstances.”13 This is illustrated as in sections: “12(b) A chemist sells poison so made up as to be liable to be mistaken for a harmless medicine. This is evidence of negligence. 12(c) If the law directs poisons to be sold only in bottles of a particular kind, and the chemist sells poison in a common bottle, this is evidence of negligence, even though the common bottle be labelled ‘Poison’.”
The thorny question resurfaces here, are there examples of gross negligence in the Ghanaian medical professional context or there exists only general negligence, whether civil or criminal? Let us pad on the hoof with some examples as reported via newsletter publications.
It was published on GhanaWeb on Friday, 26th July, 2024 with the heading, “Medical Negligence: 4 reported cases that have happened in the span of 2 years.”[8] It contained the information of a middle-aged woman named Philomina Asieduwaa, who had a cannula left in her veins after a surgical procedure to deliver her baby. Her plea to the hospital to take responsibility proved futile but was subsequently referred to the Korle-Bu Teaching Hospital for the surgery to remove the cannula (A cannula is a thin tube inserted into a body cavity, duct, or vessel for medical purposes. It is commonly used to drain fluid, administer medication, or provide oxygen.).
From the same source, a ten-day old baby also died during circumcision at the KNUST Hospital, in the Ashanti Region. Very heart rending!!!
A DANIEL COME TO JUDGMENT
In this publication on the website of Alliance for Productive Health Rights on July 26, 2021, headed “Court slaps 37 Hospital with GH¢1m in damages over 2015 negligence that killed a woman at childbirth,”[9] Helena Brema Nyamekye, a 27-year-old patient, bled to death after doctors at the Hospital went against her choice for a CS in childbirth. Captain Nyamekye (Rtd.), the husband of the deceased and the father of the deceased jointly sued the 37 Military Hospital for damages for loss of life, trauma and negligence, as well as general damages.
The Presiding Judge, now His Lordship Justice Kwaku Tawiah Ackaah-Boafo of the Court of Appeal opined that, the Hospital did not give any “plausible or reasonable explanation” as to why the request for CS was not met. In his conclusion, His Lordship captured essentially that, “Her death was a preventable one. The only logical conclusion the court ought to come to is that the deceased dies out of injuries caused her.” It was held that the doctors and nurses on the patient were negligent in the discharge of their duties. An amount of GH¢1,075,000, in damages was awarded against 37 Military Hospital.
WHAT ARE THE DIALOGUES AND SPEECHES FROM CASE LAW?
I will pay homage to English cases on (gross) medical negligence and as well accord deserving respect to a Ghanaian case on same or similar matters. In R v. Bateman (1925)[10], it witnesses a qualified medical practitioner who was convicted of gross negligence manslaughter. The events involved the delivery of a patient by name Ms. Harding, in child birth. During the delivery of her child, the doctor eventually resorted to an operation which required “considerable force.” The child died. This was because, during the operation, the doctor accidentally removed a portion of Ms. Harding’s uterus. The doctor reluctantly and eventually transferred Ms. Harding to a sickbay where she was found unfit to undergo an operation and died two days later. A post mortem examination revealed various internal ruptures and substantial removal of the uterus.
The criminal liability of the doctor became an issue for the death of Ms. Harding due to the internal ruptures, substantial removal of the uterus, and delay in admitting her to an infirmary. The appeal considered whether the jury’s instructions concerning the level of negligence warranting criminal liability for manslaughter.
The Court held that in order to establish criminal liability for manslaughter by negligence, it must be proven that (1) the doctor owed a duty of care to his patient, (2) this duty was not discharged, (3) this failure to discharge his duty caused the death, and, (4) a gross level of negligence to satisfy the mens rea element of the crime. In doing so, the Court distinguished between civil liability warranting compensation pursuant to an assessment of the damage and criminal liability which requires mens rea concerning the degree of negligence. Considering this distinction between negligence giving rise to compensation and negligence constituting a crime, the Court of Appeal found the judge in first instance misdirected the jury and quashed the guilty verdict.
I must be quick to note that, in the area of medical law, it seems to be the case of a hard nut to crack to prove negligence. This seems to be engineered by the reluctance of the court to find doctors negligent for malpractices save they are gross mistakes. However, the extreme cases make the negligence unable to be swept under the carpet.
Let us finish paying the homage to the English cases. In the case of Penny and Others v. East Kent HA [2000][11], it was held that screeners of cervical smears are only negligent when they do not spot the obvious signs of cancer. In N v. Agrawal [1999][12], it was held that the inadequate reporting of a doctor about a rape examination was not negligent because there was no duty of care, i.e. no patient/doctor relationship. When is there a doctor/patient relationship? The case of Derry v. Ministry of Defence [1999][13], in this case the negligent misdiagnosis of cancer was covered by crown immunity. Would immunity lie even if the negligence is gross? The author prefers the answer, Aye! Let us pay our last homage to two English cases below.
CAN A DOCTOR REFUSE TO TREAT A PATIENT?
The seminal case of Re J (a Minor) Wardship Medical Treatment [1990][14] accentuates that, in the case of a child or minor, where reviving subject child would further pain and amount to a torturous non-life (inactive) then, revival should not occur. In cases of children, consent in this, are considered the dominion of the doctor; whereas in mattes of operations for instance, permission has to be obtained from the parent. The nature of consent for the child is similar to those patients under the mental health.
In F v. West Berkshire Health Authority [1990][15], it was held that if a person lacks capacity to give consent then the doctor may do as he or she deems fit.
Does this mean there are no human rights and doctors can treat severely ill children as they wish (including termination of the child’s life)? Is there a direct contravention of inherent human rights? Is there a breach of a person’s (the child’s) physical integrity at best?
Now, with due respect to the Ghanaian cases on negligence, I refer the reader to the case of Asafo v. Catholic Hospital of Apam [1973][16], where a child disappeared while in the custody of a hospital. The child was a six-week-old baby. It was held that the hospital authorities had breached their duty of care for the baby and had been negligent in their duty. They failed to ensure the baby’s safety and security. They failed to ensure the ultimate delivery up of the baby to the parents at the end of the hospital stay.
Much more recent is the news of the death of a patient at the Tamale Teaching Hospital.[17] According to a statement released by the hospital, the patient had been referred from another facility and required a specialized medical procedure that the Tamale Teaching Hospital was unequipped to provide. Again, all four ICU beds at the facility, which serves the entire Northern Ghana, were reportedly occupied at the time of the patient’s arrival. This led to the Minister of Health undertaking an urgent working visit to the hospital and eventually resulted in the dismissal of the CEO of the hospital. Many have bashed the Hospital for its poor state of healthcare delivery and its negligence, leading to the death of the patient. The Hospital has rather denied any form of negligence, stating that several essential equipment are out of service, despite full payments having been made to suppliers. In such an instance, one may wonder – who is really at fault here? I leave that to you, dear reader, to decide.
CONCLUSION
It is worthy to reiterate that, in the area of medical law, it seems to be the case of a hard nut to crack to prove negligence. This seems to be engineered by the reluctance of the court to find doctors negligent for malpractices save they are gross mistakes. However, the extreme cases make the negligence unable to be swept under the carpet.
In service, professionalism is on edition, professionalism is on account, and professionalism is on duty.
[I acknowledge the dedication of my learned friend, Maame Akua Anima O. A., Esq., who did the proof-reading on time.]
Reference
Criminal Offences Act, 1960 (Act 29) Section 12 (a) of Act 29 Section 12 (b) of Act 29 Section 12 (c) of Act 29 Section 51 of Act 29 Section 82 of Act 29 R v Bateman (1925) 19 Cr App R 8 Penny and Others v. East Kent HA [2000] PNLR 323 N v. Agrawal [1999] CA 9 Jun 1999 Derry v. Ministry of Defence [1999] EWCA Civ 1016 Re J (a Minor) Wardship Medical Treatment [1990] 3 AER 930 F v. West Berkshire Health Authority [1990] 2 AC 1 Asafo v. Catholic Hospital of Apam [1973] 1 GLR 282 Bieber J.D., Christy; Ramirez J.D., Adams, “Medical Negligence: Legal Definition & Examples – Forbes Advisor”, Oct 13, 202 file:///C:/Users/syste/OneDrive/Desktop/Medical%20Negligence%20article%20-%20Prof.%20Benney.pdf, International Journal for Multidisciplinary Research (IJFMR), Medical Negligence in The Context of The Ghanaian Criminal Jurisprudence GhanaWeb, “Medical Negligence: 4 reported cases that have happened in the span of 2 years”, July 26, 2024 Alliance for Productive Health Rights, “Court slaps 37 Hospital with GH¢1m in damages over 2015 negligence that killed a woman at childbirth” – ARHR, July 26, 2021 GhanaWeb, “No Bed Syndrome, Negligence and CEO’s Dismissal: What we know so far about the patient’s death at TTH” , 23rd April, 2025 – https://www.ghanaweb.com/GhanaHomePage/NewsArchive/No-Bed-Syndrome-Negligence-and-CEO-s-Dismissal-What-we-know-so-far-about-the-patient-s-death-at-TTH-1980955 accessed, 24th April, 2025
[1] Criminal Offences Act, 1960
[2] Medical Negligence: Legal Definition & Examples – Forbes Advisor, Medical Negligence: Legal Definition & Examples, Updated: Oct 13, 2022, 5:05am, Christy Bieber, J.D. and Adam Ramirez, J.D.
[3] Ibid, Christy Bieber, J.D. and Adam Ramirez, J.D.
[4] Ibid, Christy Bieber, J.D. and Adam Ramirez, J.D.
[5] Criminal Offences Act, 1960 (Act 29)
[6] Criminal Offences Act, 1960
[7] file:///C:/Users/syste/OneDrive/Desktop/Medical%20Negligence%20article%20-%20Prof.%20Benney.pdf, International Journal for Multidisciplinary Research (IJFMR), Medical Negligence in The Context of The Ghanaian Criminal Jurisprudence,
[8] Medical Negligence: 4 reported cases that have happened in the span of 2 years, GhanaWeb
[9] Court slaps 37 Hospital with GH¢1m in damages over 2015 negligence that killed a woman at childbirth – ARHR
[10] 19 Cr App R 8
[11] PNLR 323
[12] CA 9 Jun 1999
[13] EWCA Civ 1016
[14] 3 AER 930
[15] 2 AC 1
[16] 1 GLR 282
[17] “No Bed Syndrome, Negligence and CEO’s Dismissal: What we know so far about the patient’s death at TTH”- GhanaWeb – https://www.ghanaweb.com/GhanaHomePage/NewsArchive/No-Bed-Syndrome-Negligence-and-CEO-s-Dismissal-What-we-know-so-far-about-the-patient-s-death-at-TTH-1980955 accessed 24th April 2025
