Ngwang Shey, a Barrister-at-Law based in Bamenda, explains the consequences in law of medical errors.

What happens when a medical laboratory is responsible for an error resulting in serious injury, incapacitation or death?

There are three main human rights law issues concerning medical practice. These are the patient’s rights to consent or refuse medical interventions, be respected and treated with dignity in pursuance of the sacredness of human life, and not to be subjected to any form of medical or scientific experiment without consent freely given. The use of ‘error’ or ‘mistake’ in medical diagnosis connotes in law the lack of intention to bring or cause the outcome or consequences of the analysis of the patient’s symptoms.

Such a situation is qualified as misdiagnosis in medicine and opens the way for the Medical Practitioner to be sued for negligence (action in tort) and damages claimed. If the facts reveal that the Practitioner was reckless, lacked the requisite skill or demonstrated rashness in the process, and the result is the death of the patient or serious injuries are done, an indictment or charge can be preferred against such a Medical Doctor. This is pursuant to Sections 228 (2) (c) and 289 (1) (2) (3) and other relevant provisions of the Cameroon Penal Code that deal with acts of bodily interference leading to harm. The victim still has an opportunity to claim damages after constituting himself/herself as civil claimant.

How is such an error proven?

There are two possible causes of action - action in tort-negligence and criminal prosecution. Negligence is proved on a balance of probability by establishing that there exists a duty of care on the Practitioner; that this duty was breached and as a result, the plaintiff suffered loss - be it death or bodily harm. This can only be successful by establishing another medical or expert report that “but for” the act of the defendant, the patient would not have suffered such loss.

However, this is often difficult to do. We often advise plaintiffs to have recourse to the Doctrine of res ipsa loquitur (the facts speak for themselves). This gives rise to a greater inference that the defendant was negligent. On the other hand, criminal prosecution requires proof of every material fact - otherwise called ingredients of the offence - beyond reasonable doubt. In the event of failure, the accused is discharged and acquitted under the relevant provisions of the law.

How can a medical error be made up for?

The remedy in tort is a successful prosecution and damages, with the accused person convicted under the law and sentenced accordingly.

Are there any challenges in prosecuting medical error cases?

There are numerous challenges. This area of the law is not well developed in Cameroon, coupled with the ignorance by victims of existing legal remedies. The standards and burden of proof are difficult to attain, considering that only expert evidence can be used to challenge any proof.

However, members of the medical corps are always reluctant to give evidence against colleagues. Moreover, the general belief in Africa is that death is divine or caused by witchcraft. As a result, people will not attribute it to any medical negligence, except in very glaring cases. This attitude forms a barrier to forensic investigations that facilitate prosecution in court.

The fourth challenge, which is universal, is the cost of litigation. Medical cases, even in developed countries, often take long to be determined. This is due to procedures of referral of analyses to other experts for their opinions and conclusions. Consequently, lawyers and secondary experts appear to be the beneficiaries in terms of legal fees and commissions paid. This discourages litigations and victims are never compensated. Better legislation and vulgarization will therefore go a long way to make Medical Practitioners become more prudent and victims to be compensated with less stress.