Medico-Legal Issues

and Malpractice
Overview • Medicolegal Issues in Clinical Practice
describes the many potential legal and
ethical issues facing physicians/
practitioners today.

• The Law is a system that provides for

rights between parties.

– Civil Law concerns disputes among private parties

(individuals, businesses, corporations).
– Criminal law concerns enforcement of societal rules
against individuals.
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Samuel Essien-Baidoo (PhD).

University of Cape Coast
 • The practitioner must perform his duty in
Operational good faith, for benefit of the patient & with
consent.
Definitions • Good Faith refers to act with due competence,
due care & due caution.
• Competence The act done with possession of
knowledge & skill for the intervention being
done.

• Due Care Timely fulfillment of medical needs

of the person.
• Caution Anything done without caution will be
rash. To anticipate, prevent adverse
consequence & deal with adverse
consequences.
• Benefit It may be Physical, Physiological or
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functional

Samuel Essien-Baidoo (PhD).

University of Cape Coast
Protection
Against Comprehensive
Litigation Good Patient Rapport With
Patient and Family
and Factual
Care Written Reports

Compliance with Requisite training Communicate

Standing Orders and expertise. well to provide
and Safety (Seek specialist proper directive.
advice if necessary.)
Requirements

“The negligent patient” –

check patient’s ability to
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comply with treatment
July 27, 2018
regime.
Samuel Essien-Baidoo (PhD).
University of Cape Coast
Standard of Care

“How a reasonable, prudent,

properly trained physician/
practitioner at the same level of
training would perform under the
same, ‘or similar’ circumstances.”

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July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 • Consent is defined as agreement
Communication & in sentiment, opinion, a course of
Consent action etc.

• The Law recognizes consent as good

defense for causing injury which is
based on the percept that every
individual knows what is best for
oneself.

• The Law cannot provide immunity

against all types of criminal offences.

• Offences can occur completely

independent of consent.

• Consent can be either implied or

expressed which can again be oral or
written. 6
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Samuel Essien-Baidoo (PhD).

University of Cape Coast
 • Who are you obtaining
Communication “consent” from?
& Consent
• The need to discuss should
not be overlooked:-

1. indication

2. details of diagnosis and

treatment regimen

3. potential risks

4. probable prognosis (if any)

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July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 • It should be patient’s own and he/she should be
legally and mentally competent. No one-else is
Consent competent.

• Free consent:- Means consent must be free

from force, coercion, fraud, & inducement.

• Informed consent:-It must state who is

consenting to whom and for what purpose &
should be given having understood nature &
consequences of the act. It could be orally
expressed.

• You have to inform about possible basic risks,

likely benefits & alternatives available,
irrespective of his education standard, in the
language the patient understand. 8
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• Consent must be recorded.
Samuel Essien-Baidoo (PhD).
University of Cape Coast
 • Implied Consent:- Consent need not be
Consent expressed or articulated.

• It includes consent by acts, conduct &

consent presumed but never given.

• It is permitted in special circumstances

like when patient is not competent by
age, physical or mental condition,
when guardian is not available &
patient’s condition is life threatening
(To prevent death or grievous hurt).

• Surrogate consent :-Any body who is in

valid custody of the individual is
permitted to give consent 9
July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 • Mentally competent adult patients have
the right to refuse medical treatment

• Mentally competent parents have the

right to refuse treatment for their children

• Patient should sign refusal form

• Ensure that all actions and the patient's

condition are well documented,
particularly initial assessment findings.

• The patient should be encouraged to seek

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July 27, 2018medical care.
Samuel Essien-Baidoo (PhD).
University of Cape Coast
Medical Importance of keeping good records:

Records “The quality of medical records is a direct

reflection of the quality of medical
Keeping practice.”

To achieve and maintain a high standard

of medical practice, proper medical
documentation is essential.

… “All doctors have a responsibility to

maintain clear, accurate, adequate and
contemporaneous medical records of
their patients. Systematic record
keeping helps in ensuring patients’
problems are followed and properly
looked after” 11
July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
Medical • Need to record outcome of assessment,
details of discussions etc.
Records • Explore Different types of records (But
Keeping they should be safe from abuse).

• Your “best friend or worst enemy”.

• Does it assist you in reconstructing

events without relying on memory?

• Citing approved abbreviations only.

• Sample 1
• Sample 2

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Samuel Essien-Baidoo (PhD).

University of Cape Coast
 THE CRIMINAL CODE, 1960 (ACT
Criminal 30) states that:
Culpability
& Consent • for a criminal act or criminal intent,
that an act should be done or
intended to be done without a
person's consent, or by which it is
required for a matter of justification
or exemption that an act should be
done with a person's consent.

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Samuel Essien-Baidoo (PhD).

University of Cape Coast
 SEC 14:
THE CRIMINAL • (a) a consent is void if the person giving it is
CODE, 1960 under twelve years (12) of age, or in the
(ACT 30) case of an act involving a sexual offence,
sixteen years (16), or is, by reason of
insanity or of immaturity, or of any other
permanent or temporary incapability
whether from intoxication or any other
cause, unable to understand the nature or
consequences of the act to which he
consents".

• (b) a consent is void if it is obtained by

means of deceit or of duress;
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Samuel Essien-Baidoo (PhD).

University of Cape Coast
 • (c) a consent is void if it is obtained by the
undue exercise of any official, parental, or
THE CRIMINAL any other authority; and any such authority
which is exercised otherwise than in good
CODE, 1960 faith for the purposes for which it is
(ACT 30) allowed by law, shall be deemed to be
unduly exercised;

• (d) a consent is given on behalf of a person

by his parent, guardian, or any other person
authorized by law to give or refuse consent
on his behalf, is void if it is given otherwise
than IN GOOD FAITH for the benefit of the
person on whose behalf it is given;

• (e) a consent is of no effect if it is given by

reason of a fundamental mistake of fact;
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Samuel Essien-Baidoo (PhD).

University of Cape Coast
 • (f) a consent shall be deemed to have been
obtained by means of deceit or of duress, or of
THE CRIMINAL the undue exercise of authority, or to have
been given by reason of a mistake of fact, if it
CODE, 1960 would have been refused but for such deceit,
duress, exercise of authority, or mistake, as the
(ACT 30) case may be;

• (g) for the purposes of this section, exercise of

authority is not limited to exercise of authority
by way of command, but includes influence or
advice purporting to be used or given by virtue
of an authority;

• (h) a person shall not be prejudiced by the

invalidity of any consent if he did not know,
and could not by the exercise of reasonable
diligence have known, of the invalidity. 16
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Samuel Essien-Baidoo (PhD).

University of Cape Coast
Illustrations of the Law
• (a) "A. induces a person in a state of incapacity from idiocy or intoxication, or a child under
twelve years of age to consent to his hair being cut off by A. Such consent is void.

• (b) A. by pretending to have the consent of a child's father, or under pretense of medical
treatment or by threats of imprisonment, induces a child to consent to sexual intercourse.
Such consent is void".

• (c) A. cruelly beats a child. It is no defense for A. that the child's father authorized the
beating, or that the child's father, by the exercise of his parental authority, induced the child
to consent.

• (d) A. the Chairman of a Company, consents to B. drawing money from the Company to
which A. knows he has no right. If A. does not honestly believe his action is in the interests
of the Company the consent is void, and B. is guilty of stealing unless he has acted in good
faith.
• (e) A. induces a woman to consent to his having carnal knowledge of her by personating 17
her husband. Her consent is2018
July 27, void.

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 Assault & Battery (Tort)
• Assault and battery are legal terms where assault is the threat of doing bodily
harm and battery is the infliction of unwanted touching (battering), though
physical injury is not necessary in order to prove battery. Insulting or provocative
words without threat, no matter how repugnant, do not constitute assault.

• Assault and battery usually constitute a single offense and are considered willful
or intentional torts. The perpetrator willfully threatens to cause harm or
wrongfully touch the plaintiff and then follows by a physical act such as pushing,
shoving or hitting.

• Battery can also be indirect such as the perpetrator throwing and hitting the
other person with an object such as a shoe or knife or by spitting.
• The plaintiff may recover monetary damages for battery without proving the
elements of negligence. 18
July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 Medical • In various kinds of medical and surgical
treatment, the likelihood of an accident leading
Negligence to death cannot be ruled out. It is implied that a
patient willingly takes such a risk as part of the
doctor-patient relationship and the attendant
mutual trust.

• Preventable medical errors kill and seriously

injure hundreds of thousands of people every
year.

• Discussions of medical negligence that does not

involve preventable medical errors ignores this
fundamental problem.

• Failure to follow the medical norms is

negligence.

• Norms are case specific, situation specific &

context specific. 19
July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 To prove negligence, the following must
Requirements be satisfied:-
to Prove
Negligence 1. The accused had Duty to care

2. The accused had Deficiency in duty

(The act or omission did not conform to the
‘standard of care’)

3. The deficiency caused Damage

occurred to patient (Injuries occurred to the
plaintiff)

4. Damage occurred as a direct/

proximate consequence of the act
(The acts or omissions were the proximate cause of
the injuries and The injuries are of a kind for which
damages can be awarded) 20
July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
Abandonment
‘Terminating medical care
without legal justification or
turning the patient over to
less qualified personnel
resulting in injury to the
patient’

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July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 Death
Certificates

1. when cause is uncertain

It should not be issued in
following 2. when foul play is
circumstances:- suspected

3. un-natural deaths.

Medical Reports?
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Samuel Essien-Baidoo (PhD).

University of Cape Coast
Scope of a Civil
Lawsuit
Investigation

Filing of Lawsuit Within the confines

of the Law

Service of Complaint
Suspicious
Incident Legal Representation Obtained and
Answer Filed
Discovery
•Interrogatories (written)
•Depositions (sworn, in person, and
recorded)

Trial 23
July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
Determination • Compensatory
of Damages – Special Damages
– General Damages
• Punitive

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Samuel Essien-Baidoo (PhD).

University of Cape Coast
 If You’re
Involved in a
Suit
• Always notify employer and
medical director
• Always make sure that
complaint is answered

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Samuel Essien-Baidoo (PhD).

University of Cape Coast
 Principles of
Confidentiality
• Establishment of Physician-
Patient Relationship
• Legal Requirements to Maintain
Confidentiality of Information
• Increase in Legal Risks if
Information is Misused

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July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
Defence of • The concept of medical
negligence in causation of
Doctor in injury has been over 4000yrs
Tort cases old.

• First recorded malpractice

suit in English law was in 1615
Evered Vs Hopkins

• Recorded in Ghana in 1967

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July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 Vicarious • It is the responsibility fixed on
another in place of the original
responsibility person.

• A health practitioner can be held

responsible for any charge of negligence for
his subordinates, unless other person is
qualified or experience enough to do a task.

• A senior officer in Administration cannot

be held responsible for tasks of his junior
officer, independently competent to do
so, and recruited/selected for undertaking
such tasks unless repeatedly brought to
notice of superior then senior may be held
vicariously responsible for his junior’s
acts of negligence. 28
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Samuel Essien-Baidoo (PhD).

University of Cape Coast
 • Respondens Superiors:-
This is the defense of resident
Drs/interns.

• Novus Actus Interveniens:-

Act of God/un-foreseen/unreported
turn of events. Since the event was
not expected to happen hence one
could not take adequate preventive
measures.

• Therapeutic Misadventure:-
when an injury or an adverse event
caused by medical management
occurs rather than by an underlying 29
July 27, 2018 disease..
Samuel Essien-Baidoo (PhD).
University of Cape Coast
 Privileged
Communication

Ordinarily any communication between the patient

& his physician is governed by the Geneva code of
ethics & the Hippocratic oath as not to divulged to
any other person including the person’s own spouse
or parents without his/her consent; unless the
interests of community as whole or in major part is
at stake.

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July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 Two • One of the reported cases of successful

reported medical negligence claims in Ghana is Kumah

v Attorney- General, famously known as
successful Asantekramo.

medical
negligence • In this case a 19 year old woman was referred

claims in to Okomfo Anokye Hospital in Kumasi, Ghana,

with a ruptured ectopic pregnancy.
Ghana
• She was successfully operated on but
subsequently developed a gangrenous arm
resulting from infection that started from an
intravenous infusion site. The arm could not
be saved and was amputated. She sued the
hospital for medical negligence and won.
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July 27, 2018
• Sample 1
Samuel Essien-Baidoo (PhD).
University of Cape Coast
 32
August 3, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 33
August 3, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
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August 3, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 • In another case, a severely ill six week
old baby who was admitted to the
Apam Catholic Hospital in the Central
Region for treatment went missing

• The hospital could not tell the

whereabouts of the child nor explain
to the parents why the child had
disappeared.

• The parents sued the hospital for

negligence at the High Court in Cape
Coast and won.

• Sample 2 35
July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast
Conclusion • There are no guarantees that a hard working
doctor will never experience a complaint or a
medical negligence claim from one of his
patients in his career.

• However the risk of that happening can be

minimized, in my view, by things like active
engagement in continuous professional
development, the exercise of diligence at
work, good communication and openness
with patients, and respect for the patients’
right to self- determination (respect for
patient autonomy).

• Adwedaa E (2014) ANATOMY OF THE MEDICAL

NEGLIGENCE CLAIM, Postgraduate Medical
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July 27, 2018
Journal of Ghana, Vol. 3, No. 1

Samuel Essien-Baidoo (PhD).

University of Cape Coast
 Thank
you

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July 27, 2018

Samuel Essien-Baidoo (PhD).

University of Cape Coast