Medical Malpractice Cases And The Solution That Is Insurance

MEDICAL MALPRACTICE CASES AND THE SOLUTION THAT IS INSURANCE

The Indispensable

A nation’s health sector forms its very heart. It is the basis on which the strides toward national development—economic and sociological development are built. This segment within a society plays such a crucial and indispensable role; and is of a nature that its service is required by each and every member of the society. Needless to say, access to healthcare is a basic human need, this makes the health sector a basic national need. The provision of health service is a social contract existing, countrywide, between health providers and the recipients of this service (i.e., society as a whole). Hence, a purported breach of any form, committed by this sector, has a tendency to affect society as a whole, and conversations arising therefrom easily become national issues, and draw countrywide passionate debates, with contributions from all segments of society. The rich, the middle, and the low-income earning Ghanaian are all roped in on these conversations.

The medical malpractice issue remains atop the list of such conversations that draw national uproar, although for many years, these conversations, owing to the lack of enabling platforms, have sometimes been rendered muted. But things are slowly changing; we are more interconnected than ever as a people. Thoughts, conversations, issues, spread faster than they have ever done before. Medical negligence issues are, more than ever, steadily receiving nationwide attention and intense scrutiny.

The Battlefield

The duty incumbent upon the nation when it comes to healthcare, is without argument, enormous. Healthcare, being of nature, a fundamental human right, means accessibility to all. Hence, the pool of potential victims and litigants are very wide. All these persons may enforce their right against this indispensable segment of society, healthcare institutions and professionals.

And there is a slew of recourses available to the afflicted, particularly, law (tort law), and non-legal recourses being explored by some of these victims, e.g., traditional media (newspapers, both offline and online), television, radio, etc., and the new age media, i.e., social media. And it is on these avenues that we find a certain battle incessantly brewing…

Prof. Date-Bah put it succinctly when he said, “Medicine and Law is a battle area, and we need to bring the rule of law into that area. It is important that health professionals put public interest first. On the other hand, we do not want to go the other way such as America where doctors may fear to touch patients for fear of malpractice. There has to be a middle way somewhere.” And this middle way, is without doubt, insurance. I’ll tell you why…

The Interplay between the Indispensables

It cannot be underestimated the vital role the health sector plays in Ghana. Hence, legal and regulatory frameworks are instituted to enable this sector play its role effectively, and without undue hinderances. Among one of such legal safeguards afforded the sector is the protection given health professionals and institutions against unfair litigations and potential convictions.

And therein lies the notorious interplay between two opposing, but equally indispensable sets of rights:

1. The right of the individual to life and good health;
2. The right of the health professional/institution against unfair judgements

The Ghanaian is increasingly seeing this interplay unfold as reports of medical malpractices keep piling up and seeping into public discourses. We have these cases documented in case law, in media reportages, and in the new age medium, social media. Nationwide, Ghanaians, increasingly aware of the indispensability of their rights, are scrutinising the services provided them by health professionals and institutions, and are sharing their experiences with medical negligence—malpractices which most often lead to the demise of a loved ones.

Case Law

Medical negligence cases can never be said to have been fully dealt with without the locus classicus State v. Kwaku Nkyi being referred to. In this case, a young student nurse was called to the plaintiff’s house to treat the plaintiff’s sick child. Upon arrival, he wrongly administered an injection of arsenic instead of mepacrine to the child; whereupon the infant died. The court held that the hospital in which he worked was vicariously liable for this negligent act committed by the accused.

In cases like:

• Elizabeth Vaah v. Lister Hospital and Fertility Centre;
• Somi v. Tema General Hospital;
• Darko v. Korle-Bu Teaching Hospital where the plaintiff went to the hospital for an operation on his right knee but woke up to find that instead of the right, the team of surgeons attending to him had operated on his left knee;
• Gyan v. Ashanti Goldfields Corporation where a senior nurse at the respondent hospital misdiagnosed the appellant’s child with malaria without conducting a test; whereupon the medication administered caused paralysis in the child’s leg—he had been actually suffering from polio;
• Asantekramo Alias Kumah v. Attorney General;
• Asafo v. Catholic Hospital of Apam where a six-month-old child mysteriously went missing in the defendant hospital;
• Sandys Abraham Arthur v. The Ghana Medical & Dental Council; etc.,

In these cases, we find the courts ruling in favour of victims of medical malpractices, and directing hospitals to pay huge sums of money as compensations to these victims.

In cases like Kwaku Agyire-Tettey & Paul Kwaku Sodokeh v. The University of Ghana where the courts ruled in favour of the hospitals and medical practitioners, we have witnessed outraged from the courts of public opinion and experts—outrage expressed through articles, research papers, the media, etc.

Case law on the matter are famously scant, leading many to falsely conclude that medical malpractice issues are not severe and rampant in the nation. But these shortage of legal precedents on the matter are a result of sociological and economic realities persisting in a developing nation such as ours. The average Ghanaian, being low-income earners, and being fairly illiterate or semi-literate, are largely unaware of the full extent of their rights. This situation is not helped by the fact that the court system can be a tedious and tortuous one, hence serves as a huge disincentive for afflicted individuals to pursue their rights when infringed upon.

Things are Fast-changing

Yet, this fact is quickly changing, owing largely to the extensive work being done by the media (TV, radio, newspapers) and tellingly, social media. Social media with its wide and free reach, gives all individuals from all walks of life, the opportunity of airing freely, their opinions, grievances, complaints, etc. More than ever, in a democratic nation such as ours, each and every Ghanaian actually has a voice. This, although laudable, comes with it, a call on us all, and in this particular case, the health sector, to amp up, not only its service delivery, but its risk management activities.

Malpractice allegations levelled against health service providers must be addressed quickly by these institutions themselves (more quickly than the courts can ever do), and aggrieved persons, if cause is shown, compensated swiftly. This is because we keep on seeing headlines such as those listed below across all the varied media platforms—newspapers, on the internet, on social media, on TV, radio, etc.:

• ‘Ridge Hospital Sued Over Wrongful Death’ – GhanaWeb
• Story of How Nana Yaa Brefo (journalist at Angel FM) Lost Her Womb – (Yen, Atinka News, GhanaWeb, MyInfo, etc.)
• ‘Medical Negligence: My Wife Would Have Been Alive By Now – Actor Koo Fori’s Teary Story’ – Pulse Gh (also on Joy Online, Yen, Gh Opera News, etc.)
• Emmanuel Kuto’s Case: ‘Wrong Prescription Killed My Wife’ – Social Media (Facebook)
• Dr. Nana Yaa Owusu-Prempeh’s Case, Korle-Bu Teaching Hospital,
• ‘Medical Negligence: “My Brother Bloated to Death” – Man Sues 37 Military Hospital’ (Citi News, The Fourth Estate, Modern Ghana, etc.)
• ‘37 Military Hospital Sued Over Amputated Leg’ – (Prime News, Happy Ghana)
• ‘37 Military Hospital Slapped with Over GH₵1 Million For Woman’s Death in Childbirth’ – Citi News
• ‘Sam-J Specialist Hospital to pay GH₵326,456 For Medical Negligence’ – Joy Online,
• ‘Undercover Journalist ‘Doctor’ Probes Deaths at Ghana Hospital’ 2014 – Nhyira FM
• ‘KATH missing Babies Saga’ – (Daily Graphic, Joy Online, etc.)
• ‘Doctor Render Woman Barren After Leaving Towel in Her Abdomen’ – GhanaWeb
• ‘Tema General Hospital Accused of ‘Killing’ Twin Babies’ – Joy Online
• ‘The Licensed Sex Predator’ – Manasseh Azure (The Fourth Estate)
• ‘Ghana’s Mad House’; the Accra Psychiatric Hospital Scandal – Anas Aremeyaw Anas
• Doctor Rapes 52 Girls (September 2012) – GhanaWeb, MyInfoGh
• ‘Selorm Branttie’s – Korle-Bu Polyclinic Experience’,
• ‘Lady pronounced dead at Hospital and almost buried resurrects’ – GhanaWeb (2022), etc.

The Cancer

Social media has shown itself a powerful platform, serving as an additional and alternative channel for victims of medical malpractice to share their experiences with the general public. And increasingly a new public consciousness is forming. Increasingly the Ghanaian, even the poor and illiterate, are slowly being educated about their health-related rights, about the right procedures to go through to attain justice and compensations for acts they believed to have been committed upon them or their loved ones.

The court of public opinion, is with social media, having the opportunity of hearing and deciding on cases of medical malpractices, months and years even before the courts of law themselves can. And when it comes to polling public opinion on medical malpractices, one need not travel far, conduct comprehensive surveys to derive a workable picture. One needs only look at the comment sections of these social media posts, online news pieces, etc., to generate a poll. Increasingly, the public is waging war against the health sector, a segment so vital and indispensable to society.

Case Study: USA

This is a cancer which if left un-uprooted and left to fester, will spell doom on this sector. The general public, if this problem is left to persist, will become overly litigious against the medical sector, as is being seen in countries like the USA.  In America, we see an influx of cases of patients taking to social media, news outlets, etc. to supposedly expose medical institutions and professional for acts they believe to amount to medical malpractices:

A few of these cases are listed below:

• ‘A Dentist was filmed riding a hoverboard while extracting a patient’s tooth’ – CNN
• Woman hides recorder in her hair to record ‘verbally abusive’ surgeon – Washington Post, ABC News, Daily Mail, etc.
• ‘Anesthetised Patient Accidentally Records Doctors Insulting Him During Surgery’ – Time Magazine
• ‘Doctor Caught on Camera Laughing and Cursing at Patient’ – ABC News
• ‘A UK Surgeon Who Autographed His Initials Onto Patient’ Livers Is Now Permanently Barred From Practicing Medicine’ – Insider
• ‘Trevor Noah files suit against New York Hospital Claiming Negligence’ – CNN

We all Are Losers

This increasing rallying against the health sector by the public, poses a huge threat to the country as a whole. Financial resources, as scant as they are in our developing part of the world, become wasted, as they are constantly being directed towards the settlement and payment of damages ordered by the courts. The state, owning a majority of healthcare centres in the country (as of 2020, there were 1,625 government hospitals and 928 private hospitals in Ghana), it is the national coffers itself that suffers the dip. And the taxpayer in the end is the ultimate payer of these court judgements.

This slew of medical malpractice cases in courts as increasing as they are projected to become with new-age-enabling platforms such as social media, the private sector will begin to be disincentivised into partaking in the provision of healthcare facilities and services. The USA medical system is one poignant cautionary tale in this regard. “Malpractice litigation is generally considered a contributing factor in the shortage of physicians in many parts of the US and in the rising cost of healthcare…,” noted a research finding by the American Medical Association.

In 2018, researchers Michael D. Frakes and Jonathan Gruber of Duke University and M.I.T respectively published a paper on the effect the influx of malpractice lawsuits had on medical practice in America, using the US military as its focal point. In this paper, they showed how hospitals and medical professionals resort to performing defensive medicine. This is where healthcare providers, in their bid to avoid lawsuits conduct, in many instances, unnecessary diagnostic tests and procedures, imaging tests, etc. that drive up health costs both for the individual and ultimately the state. Interestingly however, these researchers found that this increase in diagnostic tests did not translate in the provision of better healthcare services to these patients. So, at the end of the day, defensive medicine is what is sets out to be: sheer wastage—just a shielding mechanism, not for the patient, but for the healthcare provider.

Granted, Ghana, being a developing nation, is perhaps not in the position yet to resort to practicing defensive medicine. This is because resources are little, thus health practitioners cannot afford to revel in such wastage. But it is important to note that as medical malpractice lawsuits against the nation’s health sector increases, players in the field will undoubtedly resort to their own set of defensive mechanisms. And in a case like Elizabeth Vaah, the Darko case, etc. we see hospitals go to the extent of denying patients further treatments, refusing them their hospital records, etc. These defensive acts are all very much against the profession’s code of ethics.

Ghana to Suffer Same

Just as seen in the USA, the cost of healthcare is set to increase with these increase in lawsuits, and the medical profession and sector will begin to look unattractive to members of the public who would have otherwise willingly chosen to serve under the sector.

The doctor-patient ratio in Ghana is alarming. From 2001 to 2007, for instance, the doctor-patient ratio averaged 1:17,000. In 2020, Ghana was ranked 14^th by the World Bank in its doctor-patient ratio rankings of African countries. Presently standing at 1:1000, this is a good leap from the early-2000 figures. This figure though encouraging, is still very low, because globally African countries rank very low in doctor-patient ratio polls.

These figures show how overworked our medical professionals and institutions are. Crippled with inadequate hospital facilities and infrastructure, these institutions and professions have to still ensure an “increase access to good quality health services, and manage prudently resources available for the provision of the health services” as the mandate of the Ghana Health Service reads. Already crippled with enormous challenges, the influx of legal actions against the sector, and the increase rallying in the media against practices of a few negligent members of the sector, can only be expected to spell doom for the sector as a whole, and consequently the country as a whole.

A people cannot afford to wage war against itself, especially against an institution so crucial to its normal functioning as the health sector is. Yet, we have seen how worldwide, and in our own country, Ghana, things are quickly deteriorating to that level. A working and lasting solution to this societal problem is needed.

The Ultimate Champion in A Solutions Mix

Seeing the impending doom these rising medical malpractice cases can spell for the healthcare sector and the country as a whole, there are many experts who have called for medical malpractice litigations to be exempted from the court system all together, with a no-fault compensation scheme instead setup to cater for these cases of malpractices and to adequately compensate victims. Many have pointed to insurance as the ultimate dispute resolution and compensation mechanism, one that masterfully provides matching reliefs to both these opposing groups: healthcare providers and victims of malpractices. That is the peculiar advantage insurance has in this solution mix.

While all the other possible solutions (the court, quasi-judicial institutions, the media, etc.) solve malpractice cases using the win-lose approach, insurance provides win-win resolutions to both parties. Although the harm of medical malpractices cannot mostly be undone, both parties are able to, with insurance, derive resolutions which works for their mutual benefits. Insurance affords the victim adequate and timely compensation (without them having to go through the tedious process of litigation and the bureaucracies of quasi-judicial agencies). And for the healthcare provider, they are rendered free from the burden of having to pay out of their own coffers, immediate compensations, large amounts of which in many circumstances they may not be in the position to provide, or one which after paying, would adversely affect their normal operations going forward.

This bears repeating: “Medicine and Law is a battle area, and we need to bring the rule of law into that area. It is important that health professionals put public interest first. On the other hand, we do not want to go the other way such as America where doctors may fear to touch patients for fear of malpractice. There has to be a middle way somewhere.” And this middle way, is without doubt, insurance.

A Crucial Professional Indemnity

Medicine, the people, and law do not need to war, insurance can step in as a societal buffer. And tell me, what is insurance to you if you do not have an insurance broker guiding you every step of the way?  Let me re-phrase this: what is insurance to you if you do not have the nation’s leading insurance broker guiding you each and every step of the way… especially in this new regulatory climate where professional indemnity insurance, have, with the passing of the Insurance Act, 2021 (Act 1061), been made compulsory insurances for medical professionals.

[By Marcia, Research & Development]