Opinion & Analysis

Sometimes  you can eat your ‘‘PI’’ and still have it: The rise in medical negligence  and the need for professional indemnity insurance 

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Writer: Sampson Kofi Asante Sampong Esq.

‘‘The grace of God is like insurance.

It will help you in your time of need without any limit’’

-Sri Sathya Sai Baba

This article will discuss negligence, analyse case law in negligence as well as look at how professional indemnity insurance can provide respite to professionals that are at risk of punitive damages for being negligent. An action in negligence is a civil action that entitles the plaintiff to damages for the acts of the defendant.

The Merriam Webster dictionary [1] defines negligence as a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. In the celebrated Ghanaian case of Allasan Kotokoli vs. Moro Hausa and Another [2], Edusei J discussed the elements to prove in an action for negligence. He reiterated that the plaintiff must establish the existence of a legal duty owed by the defendant to him, that there has been a breach of that duty by the defendant, resulting in the plaintiff suffering damages. Hence negligence requires proof of three (3) elements: duty, breach and damages.

However, a short-cut way of establishing negligence is through the doctrine of res ipsa loquitur (Latin for ‘‘the thing speaks for itself’’). The doctrine exists because in certain situations it is unfair to ask the plaintiff to prove their case because the defendant is in a better situation to do so. To trigger this, the plaintiff must establish that the incident was caused by someone who owed the plaintiff a duty of care, that someone was the defendant and the defendant is not forthcoming with an explanation. This doctrine was applied in Byrne v. Boadle [3] where the plaintiff walking on a public street, was injured by a barrel of flour falling from the defendant’s shop. The application of the doctrine shifts the burden to the Defendant to show that he has not been negligent as soon as the plaintiff meets the above conditions.

In the case of Nelson v. Klutse [4], it was held that ‘‘to rely on res ipsa loquitur is not always necessary that it should be specifically pleaded. All that is required of the party seeking to rely on (the) doctrine is that he should plead facts, which raise a presumption of negligence, which the defendant will then be called upon to explain. The facts which the plaintiff may plead need not establish the negligence of defendant but the pleading of those facts should not preclude the plaintiff from relying on the doctrine’’.

Some reported cases on Negligence simpliciter

Once a duty of care can be inferred between two entities and there is a breach resulting in the suffering of injury then negligence could technically exist. Negligence could be established in everyday interactions such as those of a driver-passenger, doctor-patient, manufacturer-consumer and the like. Here are some reported instances.

Aboagye v Kumasi Brewery Ltd [5], the claimant found a rotten palm nut kernel in his beer. The court held that the fact that a palm kernel had been found in the claimant’s bottle of beer raised a presumption that the defendants (manufacturers) had been negligent in the preparation of the beer, but the defendants could rebut this if they could show they had not acted negligently. The defendants were found liable and ordered to pay damages for pain and suffering, general damages and costs.

Acheampong v. Overseas Breweries Ltd [6] the plaintiff, who described himself as a ‘‘practiced beer drinker”, drank Club beer which he claimed was contaminated with kerosene. The trial judge found as a fact that the system adopted by the manufacturer was thorough and carefully devised. Although, the defendant denied negligence, the court nevertheless held that the fact that kerosene was found in the beer showed negligence on the part of someone in the defendants’ establishment in spite of their thorough system of cleaning.

Some reported instances of medical negligence

Medical negligence can be described as negligence that occurs to a patient while undergoing medical treatment. When it occurs, recourse can be made to the Courts, the Medical and Dental Council, Commission for Human Rights and Administrative Justice (CHRAJ) and other administrative and disciplinary bodies depending on the remedy being sort. A doctor – patient relationship establishes the requisite duty of care that entitles the patient to commence an action against hospital or the health personnel for negligence, should any mishap occur. It must be stated that the law is slightly different when it comes to proof of negligence in medical practice. The true test for establishing negligence in diagnosis or treatment on the part of a doctor was whether he had been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care as laid in Gyan v. Ashanti Goldfields Corporation [7].

From the facts of the case mentioned above, a senior nurse at the Defendant Company’s Hospital at Obuasi mistakenly thought that a child was suffering from malaria and gave him a chloroquin injection without any prior test or reference to the doctor on duty. It was later realized that the child was suffering from polio and not malaria. Thus, the administering of this injection led to the paralysis of the infant child’s right leg. The plaintiff sued per his next friend, his father, for negligence on the part of the Defendants’ Hospital servant. The Defendant denied liability and called a specialist to testify on its behalf that giving the injection without diagnosis was not out of place. The main ground of negligence was the contention that if a proper diagnosis had been made prior to the treatment, it would have been discovered that the plaintiff was suffering from polio or at the very least, polio should have been suspected.

The Court of Appeal stated that “when a plaintiff pleaded negligence against a defendant, he could not succeed in a court of law if he did not substantiate by credible evidence the allegations of negligence upon which his claims was based. In the instant case, since the negligence alleged related to the practice of medicine, it implied negligence in the exercise of a particular skill. Therefore as the evidence on record showed that the nurse who treated the infant plaintiff did what most, if not all, medical men would have done in the circumstances on that occasion and as the plaintiff had failed to lead any evidence to substantiate his allegation that the nurse had failed to follow laid down medical regulations, the plaintiff had failed to prove that his paralysis was attributable to any omission or negligent act of the defendants and the action would therefore be dismissed. The burden in medical negligence as in all civil proceedings is that the plaintiff must lead evidence that will compel a court to rule in his favor on a balance of probabilities.

In addition to the above, in Asantekramo alias Kumah v. AG [8] the plaintiff was a nineteen-year-old housewife. She was referred to the Okomfo Anokye Hospital with a ruptured ectopic pregnancy. During the operation, the blood transfusion administered to her by the nursing staff through a vein in the right arm became swollen and gangrenous. The arm was later amputated to save her life. She brought an action against the State for damages for negligence on the part of the hospital staff. She gave particulars of negligence in her claim and pleaded reliance on res ipsa loquitur. Although she failed to prove the particulars, the trial judge found that the proven facts raised a presumption of negligence.

In reported news, Myjoyonline [9] on July 6, 2021 reported that the family of Solomon Asare Kumah sued the 37 Military Hospital for 2 million cedis for negligence leading to his death by failing to exhibit the due care required while intubating him leading to oxygen filling his skin rather than his lungs. Again, Myjoyonline [10] reported on July 22, 2021 that the High Court has ordered the same hospital to pay an excess of 1 million cedis for the medical negligence resulting in the death of pregnant woman. Korle-Bu Teaching Hospital was sued in 2016 for negligence by Abigail Cobblah when 2.5 cm of an inserted cannula broke and she was subsequently asked to pay for the operation for its removal [11]. In 2000, CHRAJ gave a decision against the Tema General Hospital for negligence resulting from its doctors absence from work and no person available to attend to a pregnant woman leading to her demise [12].

To check these occurrences, some practitioners have taken certain pragmatic steps. One of such was reported on May 4, 2023 by Citinewsroom [13] that the Military High Command of the 37 Military Hospital has established a 12-member Quality Management Committee to supervise services provided at the hospital. The formation of this committee was to ameliorate the hospital’s health service delivery and reduce instances of medical negligence in the facility. This Committee according to the Chief of Defense Staff has been necessitated by the fact that “in recent years, we have witnessed a number of complaints from the public about the quality of service some leading to avoidable loss of lives and its resultant loss of public confidence in the Ghana Armed Forces services and its facilities. To forestall this trend and revive public confidence in the Ghana Armed Forces medical services, the military high command saw it imperative to set up a committee to promote quality assurance for the improvement of quality of care at the Ghana Armed Forces medical facility.”

I must applaud the efforts of the Authorities of 37 Military Hospital for such an initiative and I would urge all health facilities to follow suit but this is not the only remedy to the issue of medical negligence. No matter how careful we are, there is always the possibility of negligence occurring. I am proposing a post-facto solution found within the laws of Ghana. Thus, I will direct health care practitioners and other professionals to professional indemnity insurance especially the private practitioners. Some of these private institutions may not have the financial weight to withstand the execution of a huge judgement from a negligence lawsuit.

What is professional indemnity (PI) insurance?

In its simplest form, Professional indemnity (PI) insurance is essentially a civil liability cover for negligence. It is a form of insurance that covers an alleged failure or negligence in the delivery of the services of professionals or organizations. The only condition precedent is that the said professional should have signed up for this policy and discharged his responsibilities under it. PI also covers antecedent costs such as lawyer’s fees, filing fees as well as the cost of judgement if the professional is found negligent.

With the assent of Insurance act, 2021 (Act 1061), insurance companies have been given the legal authority to underwrite professional indemnity. Section 140 0f Act 1061 allows a licensed insurance broker, a licensed reinsurance broker, a licensed insurance loss adjuster or a licensed technical service provider to provide PI insurance.

Who qualifies for PI insurance?

As the name denotes, PI is only available to professionals. A Professional has been defined in the Second Schedule of Act 1061 to include accountants, medical doctors, insurance practitioners, lawyers, financial and investment analyst and any other profession that may be specified by Regulations.

What are the requirements to insure and maintain professional indemnity insurance?

As per section 216 of Act 1061 an employer of a professional person such as those discussed above shall insure and maintain an insurance under any qualifying professional indemnity insurance contract with a licensed insurer for the professional person.

An employer that contravenes the above commits an offence and is liable on summary conviction to a fine or a term of imprisonment or to both.

What does PI insurance cover?

PI insurance as construed in section 217 of Act 1061 covers the liability of a profession where the loss or damage caused to another person, where the claim arises from:

(a)

(i)a negligent act, error or omission, a negligent misstatement or misrepresentation or a breach of a duty of care in connection with the carrying on by the person of the business;

(ii)the dishonesty of the employees of the insured professional or persons engaged under a contract for services and, in the case of a body corporate, the directors of the body corporate; or

(iii)the loss and theft of documents and data, including the cost of replacement, the reinstatement of data and the increased cost of working;

(b) the legal and other costs connected with defending a claim referred to in paragraph (a); and

(c) the cost of investigating and settling such a claim.

How does PI work?

As is the case with any insurance policy, a professional who signs up for this policy contracts to pay an agreed periodic premium to an insurance provider so that when there is any claim in respect of negligence in his profession, the provider will cover the claim. A plethora of insurance companies currently offer Professional Indemnity Insurance namely Hollard, Enterprise, Star Assurance just to mention a few.

CONCLUSION

No matter how careful a professional is, there is always the possibility that negligence can occur. As Ben Jonson the English poet once said ‘‘Success produces confidence; confidence relaxes industry, and negligence ruins the reputation which accuracy had raised’’. PI insurance is the final jigsaw piece that all professionals especially those in medical practice need to embrace as one of the remedies to negligence.

NB: The contents of this article are intended to provide a general idea of the subject matter. Specialized insurance consultation should be obtained from your insurance provider on this subject.

Kofi Asante is a lawyer with a specialization in corporate, commercial and insurance law amongst others. 0541891889 (sampsonsampong@gmail.com)

REFERENCES

[1]​“Negligence.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/negligence . Accessed 1 Aug. 2023.

[2]​[1967] GLR 298

[3]​159 ER 299

[4]​ (1969) CC 142

[5]​[1964] GLR 242

[6]​[1971] 1 GLR 7

[7]​[1991] 1 GLR 466.

[8]​ [1975] 1 GLR 319

[9]​https://myjoyonline.com/family-sues-37-military-hospital-over-death-of-48-year-old-man-demands-2m

[10]​https://myjoyonline.com/court-orders-37-military-hospital-to-pay-over-%C2%A21m-as-damages-for-medical-negligence/?myjo

[11]​https://dailyguidenetwork.com/patient-sues-korle-bu-for-negligence/

[12]​CHRAJ/2/98/1368 

[13]​https://citinewsroom.com/2023/05/committee-tasked-to-improve-service-at-37-military-hospital-to-avoid-lawsuits/

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