Court proposes tough laws to punish negligent doctors

The High Court has called for urgent restructuring of the law to punish medical institutions and practitioners found culpable of negligence, leading to death of patients.

Justice Roselyne Aburili asked the Attorney General, the Health ministry and the Kenya Law Reform Commission to urgently engage relevant stakeholders to come up with stringent measures to curb wanton negligence and indiscipline among health service providers, including public and private practitioners.

The Medical Practitioners and Dentists Act does not provide for punitive measures against offending health facilities, with new regulations targeting practitioners questionable.

“This is essential as many patients continue dying in care of hospitals which could otherwise have been disciplined for misconduct and ordered to make amends,” she said.

The judge made the remarks after quashing disciplinary proceedings against the Nairobi Hospital initiated by the Kenya Medical Practitioners and Dentists Board (KMPDB) following the death of lawyer Sybil Masinde Odero seven years ago.

Justice Aburili said the board’s Professional Conduct Committee (PCC), which had found the hospital culpable, has no independent mechanism for implementing the decisions it makes.

She ruled that under the Medical Practitioners and Dentists Act, the board and the PCC have no power to hear and determine disciplinary proceedings against medical institutions except individual offending practitioners. However, victims of medical negligence are at liberty to seek compensation from medical facilities and practitioners, she said.

The judge said Parliament enacted the Medical Practitioners and Dentists Regulations, which took effect in December 2013, to protect the public from sub-standard medical services offered by institutions and practitioners. The PCC was created under the new rules the same month.

“Where the Statute clearly excludes medical institutions from being subjected to disciplinary proceedings by the board, it cannot, by craft or innovation, attempt to expand its jurisdiction,” said the judge in her 42-page ruling.

Justice Aburili observed that it was “inconceivable” for the parties involved in the medical complaint to have entered into a consent to appear before the PCC, which was legally “non-existent” at the time to handle any proceedings.

“I have no hesitation in finding that the entire disciplinary proceedings against the Nairobi Hospital were a nullity for being undertaken by a body that had no such power to make any binding decision,” said Justice Aburili.

The judge said it was unfortunate for the deceased’s father, John Paul Odero, to have lost his daughter under the circumstances and directed that the complaint be handled by the board in accordance with the law.

Sybil had been admitted to Nairobi Hospital’s labour ward in the morning of February 11, 2011, under the instructions of her personal doctor, Dr Bartilol Kigen.

He is a private medical practitioner allowed to attend to patients at the high-end facility. She reportedly delivered a baby through Caesarian Section at around 1pm the same day, but developed complications after and had to be transferred to the Intensive Care Unit at 6pm.

She died while undergoing treatment. Her father lodged a formal complaint with KMPDB on May 27, 2011, alleging that the hospital, Dr Kigen and Dr Gerald Moniz were negligent in their professional duties and had caused the untimely death of his daughter.

The hospital’s management was summoned to appear before the Board’s Preliminary Inquiry Committee on July 27, 2012. Dr Kigen, Dr Moniz, Dr Martin Wanyoike, Dr Omondi Ogutu and Sister Rosemary Karitu testified in the inquiry.

The PIC recommended, through a letter to the hospital dated February 8, 2013, that Odero’s complaint was justifiable to be heard by the full board. However, the hospital objected on grounds that only the PCC was legally mandated to handle the report.

The board overruled the hospital and directed that the inquiry proceeds on July 25, 2013. The hospital and Dr Moniz were aggrieved by the board’s findings and challenged the decision in the High Court.

The parties mutually agreed to have the matter handled by the PCC, delivered its ruling on March 3, 2016 against the hospital. It was ordered to pay Sh150,000 as part of the costs of the disciplinary proceedings.

The hospital was dissatisfied by the PCC’s decision and lodged its judicial review application in the High Court on the basis that the KMPDB was the legally-mandated tribunal to conclude the matter.

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