Blurred lines over malpractice, negligence, and ‘fate’

It is often said that lawyers hang their mistakes while doctors bury theirs. Errors of commission or omission by doctors are often overlooked and can be fatal or even have irreversible and far-reaching health ramifications, that include permanent disabilities.

When a patient dies or is maimed for life in such circumstances, it is often perceived to be kazi ya Mungu (the work of God), or the devil takes flak for it as ignorant, unsuspecting masses accept the situation and move on. After all, the doctor knows it all.

According to the World Health Organization (WHO), medication errors cause at least one death every day and injure approximately 1.3 million people annually in the United States of America alone.
“While low- and middle-income countries are estimated to have similar rates of medication-related adverse events to high-income countries, the impact is about twice as much in terms of the number of years of healthy life lost. Many countries lack good data, which will be gathered as part of the initiative,” says the report.

But how many of these occurrences actually result from the “work” of the doctors and other attending healthcare workers and not fate, as we often say?
Do the patients’ relatives have an inkling as to whether there could have been foul play, negligence, or ineptitude on the part of the hospital staff as they mournfully package the dead bodies of their loved ones to be interred?

According to Flugence Massawe, a lawyer with the Legal and Human Rights Centre (LHRC), the cases of commission and omissions by doctors are many. Medical negligence or malpractice includes, but is not limited to, misdiagnosis, such as diagnosing a person with irritable bowel syndrome when they really have ovarian cancer, missing the symptoms of serious heart disease, or failing to perform or order appropriate medical testing.

Vicarious liability
“There are many cases of medical negligence the country. When they occur, the hospital incurs vicarious liability when such things happen. Vicarious liability is when a supervisory party is liable for the negligent actions of a third party for whom they are responsible,” he says.

In a recent press statement published on the Ministry of Health website, the Medical Council of Tanganyika (MAT) apologised on behalf of the ministry for the death of a pregnant woman, one Dainess Massawe, which occurred on September 20,2023 at Ngarenairobi Health Centre, Siha District. The death was caused by a negligent delay caused by a drunken doctor (name withheld).

The press statement cautioned doctors, dentists, and allied healthcare providers to provide timely services that are ethical and follow medical principles according to laws and regulations.
But is it enough to apologise? Mr Massawe says that it is not enough to apologise because some of these medical malpractices end up bringing about irreversible conditions for the patients.

“The Medical Association of Tanganyika (MAT) is the body responsible for holding doctors accountable. Commissions of inquiry into medical practices are pure cosmetic, and unless the aggrieved party can prove that there have been damages through a professional doctor, it might be difficult to uphold the case,” adds Massawe.

The council is obligated by law to inquire into any complaint, charge, or allegation of improper conduct against any medical, dental, or allied health professionals and practitioners registered, enrolled, or enlisted under the Health Act.

"Anaesthesia mistakes and improper subscription and application of medication or to obtain informed consent, improper use of medical devices, incorrect treatment, and botched surgical procedures such as leaving a surgical instrument inside a patient, constitute medical negligence" says Massawe.

A medical malpractice suit can be lodged against any individual or entity that provides health care. This would include, for example, doctors, nurses, technicians, physical therapists, and optometrists. However, a bad medical result doesn't necessarily mean there was malpractice. Even with the best of care, things can go wrong.

According Mr Alexander Baluhya, the president of the Tanzania National Nurses Association (TANA), the association that develops and promotes maximum adoption of ethical practices for nurses in Tanzania, the action of delisting a professional found culpable of extreme cases of medical negligence could be taken against them.

“Although our primary role is to protect the professionals, we do not defend cases where malpractice is deliberate. Circumstances under which medical malpractice occurs might differ,” says Baluhya
So far, there are no clear figures on the number of such “mistakes” that have been buried because there is always a thin line between what can be conclusively termed medical negligence and fate, or "the work of God,” as many Tanzanians would call it.

In April 2015, a friend of this writer who was 44-years-old, was admitted to a leading referral hospital with a mild stroke. It took the hospital almost seven hours to allot a bed for him. He died a few days later.

A year or so ago, a 30-year-old mother of three who happened to have been the wife of this writer’s colleague had taken ill over stomach ulcers. At a local dispensary, they administered an injection, after which things became worse.

She was rushed to one of the leading hospitals, where she had been receiving her treatment, but died immediately after. Her doctor wondered why the doctor at the dispensary chose that particular injection.

When a seemingly healthy Jane* was taken to the hospital to deliver at one of the referral hospitals, neither she nor the baby were saved; it was blamed on abruptio placentae (ruptured placenta). A commission of inquiry into the death was quickly cobbled up, but nothing came out of it.

In the case above, it was alluded that she had been attending clinic prior to the day but nothing was diagnosed then. Misdiagnosis may be a significant and under-recognised quality of care problem.
At the clinic, investigations of the diagnostic accuracy for three obstetric conditions post-partum haemorrhage (bleeding before birth), and pre-eclampsia ought to have been done.

It is not unusual to hear that someone has died from a botched-up operation but this is hushed, with doctors protecting each other. Indeed, in the past, there was a case where there was an interchange of patients where one who was to undergo a leg operation had his head operated on, and vice versa, a situation that brought about public and media outcry.

One of the patients died. Cases of commission and omissions are many, but can patients or their relatives tell whether there was malpractice? What does the law say about it, and if there is redress for the affected or their families?

Medical negligence or malpractice includes, but is not limited to, misdiagnosis, such as diagnosing a person with irritable bowel syndrome when they really have ovarian cancer or missing the symptoms of serious heart disease. It also includes failure to perform or order appropriate medical testing.

Duty of care

In the Civil Appeal number 99 of 2004, Antoni Vs Penina (Mama Ngesi), and another Civil Appeal number 118 of 2014, the position of the law is clear that when it comes to the tort of negligence, one must prove that first, there existed a duty of care and that there is a breach of duty, and secondly, the patient suffered damages as a result. The law also recognises the role played by the supporting teams.

In the ruling in the case of Aziza v Regency Medical Centre Ltd, the duty of care lies in the hands of the caregiver and is a legal obligation to exercise reasonable standard while performing their duties.
As depicted in the court ruling, Civil Appeal of 2004 anaesthesia mistakes and improper subscription and application of medication or to obtain informed consent. Improper use of medical devices, incorrect treatment, and botched surgical procedures such as leaving a surgical instrument inside a patient.

A medical malpractice suit can be lodged against any individual or entity that provides health care. This would include, for example, doctors, nurses, technicians, physical therapists, and optometrists. However, a bad medical result doesn't necessarily mean there was malpractice. Even with the best of care, things can go wrong.

Misdiagnosis and contributory negligence
In civil case number 98 of 2021 filed at Kisutu Resident Magistrate Court, Florence Samuel John sued Shree Hindu Mandal Hospital (first defendant), TMJ Hospital (2nd defendant), and Dr Maurice Mavura (third defendant), alleging that her case was misdiagnosed.

She had sued for Sh53 million as specific damage, the cost of medical treatment, and Sh500 million as damages for the trauma of suffering life-long health complications due to medical negligence in the form of misdiagnosis that led to two thyroid operations by the defendants.

The case sought to determine whether the second defendant incompetently and negligently diagnosed the plaintiff with papillary thyroid carcinoma, whether the first and third defendants were negligent in diagnosing and performing surgery on the plaintiff, and whether the health complications were the result of the surgery performed on the patient.

She lost the case because defendants were able to prove that necessary actions, procedures and subsequent treatments were done accordingly and the opinions of the doctors, including anaesthesia, operation of thyroid gland did not contravene or meet the threshold of medical negligence.

“In absence of proof that second defendant negligently and incompetently misdiagnosed the plaintiff and in absence of proof that first and third defendant omitted the duty of care in attending her in performing surgeries, one cannot allege that the health complications suffered by the plaintiff direct consequences of negligence of defendants,” ruled the magistrate R.M. Rugemalira on October, 23, 2023.