Medical negligence: Doctors know it all is a thing of the past
As students of the law, it is refreshing that a report by a patient-centered non-governmental group leading a campaign to bring justice to victims of medical negligence in Ghana has recorded 60% success in medical negligence suits brought against health facilities and medical staff.
The group, Advocacy for Medical Malpractice Victims, has been championing justice for medical malpractice victims through the payment of compensation, and promotion of high competence among healthcare givers, among others. It receives and investigates between 25 and 30 cases of alleged medical negligence nationwide every week.
The 60% success in medical negligence suits brought against health facilities and medical staff means that the adage of Doctors knowing everything is a thing of the past.
In this article, we justify from the legal point of view by examining the common law perspective, academic legal studies, statutory provisions, and court decisions to buttress our argument on why the assumption that doctor knows it all is a thing of the past in the health system.
A simple definition of the subject was espoused in the Ghanaian case of The State v Tsiba (1962) 2 GLR 109 at p.111, per Akufo Addo J.S.C (as he then was) as: “the omission to take care where there is a duty to take care”.
In Frimpong V Nyarko [1998-99] SC GLR 734, where the Supreme Court was confronted with the issue whereby applying the law would have severe consequences on the party, Wiredu JSC (as he then was) said at page 742 that:
“ The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy, however plausible can never be elevated to become a principle of law. The appellants are out of court, and their case would deservedly be put out of court in accordance with law. Again taking a cue, in my respectful opinion, no matter how strong the sympathies I may feel for the Plaintiffs that cannot override the principles of law that I have applied”.
Prof. Justice Date-Bah also noted that “Medicine and the Law is a battle area and we need to bring the rule of law into that area. In Ghana, it is said that health professionals never testify against themselves and therefore there is a real hurdle to litigation of medical malpractice cases. It is important that health professionals should put the public interest first. On the other hand, we do not want to go the other way such as in America where doctors may fear to touch patients for fear of malpractice. There has to be a middle way somewhere”.
Bolam (1957) Covering Doctors-History
The adage of doctors knowing it all in the healthcare industry was a shield under the Bolam principle. This principle, which saves the medical profession held that when a doctor engages in a negligent act and it goes to court, once a colleague doctor testifies that the doctor’s practice or act is accepted by a reasonable body of medical opinion in that act the doctor could not be held as negligent.
The ‘Bolam’ principle has long been the traditional test governing how much information is necessary to avoid liability in negligence. Doctors would rely on their professional judgment to determine the amount of information to be disclosed.
Before that, Hunter v Hanley  S.C. 2000 permitted the medical profession to decide what information a patient could receive about options for treatment and the risks and benefits of those options. Information delivery to patients was filtered by the practice of the profession.
During this period, the courts in the UK were content to permit the medical profession through the evidence of expert witnesses on professional practice to dictate what information patients were entitled to receive.
The focus was not on the rights of the patient and the disclosure of risks inherent in a proposed treatment was seen as a product of the doctor’s duty of care rather than as a product of the patient’s right to self-determination.
The Bolam principle was subsequently adopted in the Ghanaian case of Gyan v. Ashanti Goldfields Corporation 1 GLR 466 (1990), the plaintiff took his one-year-old son to the defendant company’s hospital with a complaint of high body temperature. A senior nurse who believed that the child’s presenting history was suggestive of malaria infection administered a chloroquine injection without prior test or consultation with the doctor on duty. As a result of the injection, the child suffered paralysis of his right leg. It was later confirmed that the child rather had polio and the chloroquine injection complicated the condition thereby causing paralysis.
The defendant denied liability on the ground that under normal conditions where there was no polio epidemic, as was the case at the material time, the incidence of polio was so low as compared with that of malaria because of the small risk of paralysis from polio. Therefore, there was nothing irregular about the decision of the nurse to administer the chloroquine injection which was the proper remedy for malaria.
Both the trial court and the Court of Appeal accepted the defendant’s explanation that where there was no polio outbreak, the incidence of polio was very low when compared to malaria and that given the high mortality rate in children suffering from malaria, a medical officer would not normally withhold an injection for the treatment of malaria even though there was a small risk of paralysis if it turned out to be polio. The core of the defendant’s argument was that, had a doctor been informed, he would likely have administered chloroquine since malaria was a common cause of admission of infants at the material time.
The trial court held that the plaintiff failed to prove that the paralysis was attributable to any omission or negligent act of the defendant as he failed to lead any evidence to substantiate his allegation that the nurse had failed to follow the medical regulations in place. In the Court of Appeal, however, the nurse was found negligent for playing the role of the doctor. The hospital was also held vicariously liable.
In this case, we found some interesting legal principles: Bolam’s test; practicing out of scope; res ipsa loquitur. This means that any health workers must practice within their scope of practice.
Also, in Darko v Korle-bu Teaching Hospital, Suit No. AHR 44/06 , a young male reported for treatment at the defendant hospital with a history of pain in his right knee, which on assessment was diagnosed as torn patella ligament. He was requested to sign a consent form to allow a surgical repair of that ligament. Instead of the right knee being operated on, the surgeons operated on the left knee of a patient. The hospital refused to further attend to the patient as a protest over a medical negligence suit the patient had initiated against them.
The court adopted the Bolam principle and found that the hospital had not been negligent when the left knee was rather operated on. It was observed by the court that the patient had signed a broad consent form that empowered the surgical team to take any necessary measures for the operation. Accordingly, if there was a medically justifiable indication for the operation of the left knee, the hospital could not be found negligent in treating it. The court also pointed out the failure of the plaintiff’s lawyer to advance arguments on the scope of the consent given vis-à-vis the medical complaint reported by the boy. However, the hospital was found in breach of its duty to provide the boy care when it refused to honor his review and physiotherapy appointments during the pendency of the suit as a protest to his legal action.
The court did not find the doctors or the hospital liable for negligence in operating on the left knee instead of the right but did find that the hospital was liable for refusing the claimant further treatment after the legal action had been initiated. The legal principle in this case we found is that a medical personnel’s refusal to treat the patient may be a ground for negligence though Bolam was acknowledged.
Roger v Whitaker (1992): A patient’s right
There came Roger v Whitaker, an Australian case, that was celebrated for departing from doctors know it all in Bolam and Sidaway. Roger’s case reasoned that instead of cementing medical opinion, even on patients’ decision-making, the court is willing to re-examine the appropriateness and the propriety of the standard adopted by doctors.
In the Ghanaian case of Somi v Tema General Hospital, (1994- 2000) CHRAJ 196, a 36-year pregnant woman was rushed to the hospital with an antepartum haemorrhage. The doctor on night duty had finished earlier than expected at 4.00 a.m. instead of 8.00 a.m. and the morning doctor on day duty did not report until 10.00 a.m. The nurses tried to keep the patient alive, but they could not hear the heartbeat of the unborn child. Neither the mother nor the baby survived the operation.
CHRAJ found the defendant hospital to have unjustly caused a patient’s death in violation of Article 218(a) of the Constitution. It was held that the failure of a public hospital to ensure that an emergency cesarean section operation was carried out on a patient, thus leading to her death, constituted a violation of her human right to life.
As students of the law, the legal principle we found here is that where a medical person abuse official time or is absent from work or lateness to duty without justification is a ground for negligence, and would be held liable.
Also in Elizabeth Vaah v Lister Hospital and Fertility Centre, HRCM 69/10 , A client who was under the care of the defendant hospital sued the hospital, relying on the right to information guaranteed under Article 21(1)(f) of the 1992 Constitution of Ghana (the Constitution), when she sought to recover her medical record to clarify the cause of death of her stillborn baby. The applicant’s case is that her fundamental human rights have been violated by the respondent when the latter refused to release her medical records to her. The respondent argued that it was justified in refusing the applicant’s request for medical records because by speaking to the press about the circumstances in which she gave birth at the respondent’s hospital, she had evinced an intention to abuse the records. It was held that the plaintiff was entitled to a copy of her medical record from Lister Hospital. The legal principle we also found, in this case, is that a medical facility cannot violate or prevent a patient from accessing their records.
Finally, in Jehu Appiah v Nyaho Healthcare Limited , where the plaintiff accused the facility of allegedly damaging her fallopian tube, which nearly led to her death. According to the case, the plaintiff, upon conception utilized antenatal care services at the respondent hospital. But at a point, she claimed she had to undergo a life-saving surgery at a different health facility due to the “actions and inactions” of the Nyaho hospital. After the life-saving surgery, she made a formal complaint to Nyaho Healthcare Limited, after which she was promised investigations into the matter and the results communicated to her. The plaintiff noted that all efforts to compel the respondent hospital to release her medical documents (including scans, tests, diagnosis, and treatment) proved futile. The court held that the complete medical records be released to the patient.
Bolitho (1997): Judges have the power to think for medical people
In the Ghanaian case of the State V K. Nkyi  GLR 197, a student nurse mistakenly injected a baby with arsenic instead of mepacrine. The child’s condition immediately deteriorated and died within a few hours. A post-mortem examination revealed that the death of the sick child was caused by arsenic poisoning.
The court found that the student nurse was practicing without possessing the requisite registration as a nurse or under the supervision of a qualified practitioner when he administered a drug to the sick child. The court held the student nurse liable for the charge of manslaughter. The legal principle, in this case is that, since the law proscribed the practice of medicine without license, then any health worker practicing without a license will constitute a crime.
Bolitho v City and Hackney HA, 1996 helped to clarify what was meant by “a responsible body,” defining it as one whose opinion had a “logical basis in the medical profession.”
This means that the Bolam Test and the Bolitho Test are used in combination in medical negligence. Bolitho test is saying that the doctor’s decision, though appears sound in the medical community has to be logical. Combining the two cases means that a doctor is not negligent if he or she acts in accordance with a responsible body of medical opinion, provided that the Court finds such an opinion to be logical.
For instance, the Evidence Act 1994 of the Gambia, Section 75 which is in pari materia with section 112 of the Evidence Act of Ghana,1975 (NRCD 323) permits expert opinion to be given in evidence before the court in matters relating to medical, science, pathologist’s report, and many others. There are instances where the court is confronted with a conflict in what is regarded as expert opinions.
For instance, in the Gambian case of Babourcarr Touray v MRC and 2 OR GCA CIV.APP. 55/94, where medical experts presented diverse explanations as to the cause of gangrene(death of body tissue due to a lack of blood flow or a serious bacterial infection) which led to the loss of the plaintiff’s two hands. When this happens, the court is not bound to accept the opinion of an expert or anybody else. It is the duty of the court to describe what is logical, not the medical profession. The court has to examine all the issues that are put before it.
Thus, Bolitho questioned the authenticity of expert knowledge given the Bolam test to the extent that opinion among expert groups may not be based on sound current knowledge. But where the opinion is sound, the case listens.
Another case worth discussing is the Ghanaian case of Asantekramo, alias Kumah v. Attorney–General  1 GLR 319, where a nineteen-year-old woman who was diagnosed with ruptured ectopic pregnancy underwent an urgent surgical operation at the Komfo Anokye Government Hospital. While the surgery was successful, her right arm became swollen and gangrenous after being transfused an amount of blood by the nursing staff through a vein in that arm. To save her life, her arm was amputated. Two years later, the woman sued the State, seeking damages for negligence on the part of the hospital staff.
The defence raised by the testifying surgeon that the occurrence was a ‘mystery’ was rejected by the court. The expert evidence showed that the bacteria that caused the gangrene was either transmitted through the blood transfusion needle or a dextrose infusion administered to the woman. The Court held the State liable for the negligence of the hospital and awarded damages to the plaintiff.
In Pearce v. United Bristol Healthcare NHS Trust 1999, the Court of Appeal established that the standard adopted in Bolitho was equally applicable to cases dealing with the duty to inform.
Chester v Afshar (2004): Courts protecting doctors
In Chester v Afshar, Lord Hope said “the function of the law is to protect the patient’s right to choose. If it is to fulfill that function, it must ensure that the duty to inform is respected by the doctor.” Based on this statement, some commentators held that the courts have been lenient on doctors and have not been robust enough to hit the nail on the head to protect the rights of patients. Probably, those affected by alleged medical negligence in the Gambia are not testing the law.
Foo Fio Na v Dr. Soo Fook Mun, 2007: Millennial Approach
In this Malaysia case, Foo Fio Na v Soo Fook Mun and Anor. (2007), the Court viewed the Bolam’s as being “over protective and deferential” to the medical profession. The judges reasoned that the law is indeed in their bosom, and they can disagree with medical opinion. The court determines the reasoning behind doctors’ conduct and not the profession. The Federal Court opined that “the Rogers v Whitaker test would be a more appropriate and viable test of this millennium.
Sidaway & Montgomery: doctors are not superior
Even before the development in Montgomery in the modern era, in 1985 the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital adopted the test to be employed in case a doctor fails to advise a patient of the risks involved in a particular treatment.
Sidaway became the first test for information disclosure to patients that recognized their right to self-determination in the context of decisions about their medical treatment. The case was recognized in Montgomery.
The ‘Montgomery case has called on doctors to consider ‘material risk or significant risk’ and the doctor has a duty to provide all useful information or all possible options. Hence, failure on the part of the doctor to provide the patient with other possible options available is suicidal on the part of the doctor.
‘Reasonable patient’ rather than ‘Reasonable doctor’.
In Montgomery v Lanarkshire Health Board, UKSC 1, 2015, has raised the standard of a reasonable test as the focus is now on ‘reasonable patient’ rather than ‘reasonable doctor’. The law defines material risk as either a risk to which a reasonable person in the patient’s position would be likely to attach significance or a risk that a doctor knows or should reasonably know is perceived to be of significance by this particular patient.
The issue of concern is ‘this particular patient. Bismark et al. (2012) explained that many jurisdictions have moved towards legal standards for risk disclosure, prioritizing the preferences of patients. The Ghana Health Service Patient’s Charter thus, gives a patient the power to make decisions as well.
This was the case in ‘Cantebury v Spencer’ in 1972 in the District of Columbia Court of Appeal, the court rejected the traditional approach of ‘what reasonable practitioner would do’ to a patient-centered standard: ‘what would a reasonable person want to know?’
Montgomery applicability in Ghana
‘Montgomery’, ‘Pearce’ and ‘Roger v Whitaker’ concerning a doctor’s duty to take reasonable care to ensure patients are aware of any material risks involved in recommended treatment and the alternatives were applied in Dr. E.L.A. Chinbuah and Attorney General case, 2021, when the deceased was due to deliver, she opted for a Cesarean Section, but her request was turned down. Instead, the doctors decided to take her through normal delivery. This caused her to bleed profusely and died in the process. The Ghanaian court adopted a more patient-centered approach here.
Are Doctors in Danger?
Some commentators believe the new law appears to be harsh on doctors as the courts have decided to tell doctors how to practice medicine instead of doctors making changes in their profession. Another school of thought are also of the believe that the new law will help doctors to sit up instead of believing that they are superior and know it all in the medical profession. However, the ‘unlettered’ man in the street will think that the new law is the way to go judging from recent allegations of incessant medical negligence.
The law even went further to state that when a doctor knows there is another doctor who is more experienced to take a certain case and failed to do so could be held to be negligent. This was manifested in an Australian case, ‘Chappel v Hart’ . The attending doctor failed to disclose the availability of a more experienced surgeon for a particular procedure, the factual causation must be followed by a second aspect of causation, the scope of liability that the patient would only claim if the risk materializes, as in ‘Wallace v Kam’  HCA 19.
Other commentators assert that Wallace could pose a great challenge as some patients could demand highly expensive treatment, disregarding the cost-effectiveness issue or opting for alternative medicine without strong scientific evidence. For instance, Strauss and Thomas (2009) held that in modern health care, responsible bodies of medical opinion mean judicious use of the best current evidence in making decisions about the care of patients, and also a strong emphasis on patient-centered care. This would bridge the gap between the two different standards (professional vs reasonable person) and also the legal and medical perspectives regarding disclosure and consent.
It is evident from the report by the group, Advocacy for Medical Malpractice Victims, that many clients are seeking legal opinions on health issues and negligent acts can affect the image of the doctor and the facility.
We found that malpractice cases include access to patients’ medical records, practicing without a license or out of scope, refusal to treat, and the development of complications following surgical interventions.
Also, there are two typical situations where a doctor might be held liable for negligence: the first is negligence in the performance of a medical procedure (The old Mantra-Bolam Test); and the second is failure to disclose the risk of a medical procedure to the patient for the purpose of getting consent (The new mantra– Montgomery test).
This notwithstanding, as students of the law, it is encouraging to know that “doctors know it all” is no longer an option as the court has the power to disregard this and they can no longer hide under the Bolam test as a defence.
We recommend that the healthcare industry should start looking at how to avert negligence in their practices. We propose Medico-legal training for healthcare staff in the area of duty of care and devotion to the Ghana Health Service Patient Charter.
Prof. Raphael Nyarkotey Obu is a Barrister At-Law(BL) candidate at the Gambia Law School, Banjul, The Gambia, and Daniel Sackey is a Part Two student of the Ghana School of Law, Accra, Ghana. E-mail: email@example.com