Dear Mirror Lawyer, My sister went through a caesarean operation at a private hospital about two years ago during the birth of her first child. Since then she has had problems with her tummy. She goes through severe pains and vomits when food enters her tummy, which has now paralysed her.
She was later asked to go through a scan and it was there that it was discovered she had some foreign objects in her tummy.
She was operated on six months ago by another hospital to remove the foreign objects which were a piece of surgery gauze and silver-like equipment left in her tummy during the caesarean operation. Is it permissible in Ghana for my sister to sue the hospital for negligence?
Dear Eva, Hospitals and medical doctors, for that matter, like all other professionals, undertake to use the highest standards of their professional skills for the treatment of patients who call at their facilities with medical problems.
Medical negligence law is referred to in other countries as medical malpractice law and it provides a way for patients to recover compensation for any harms resulting from sub-standard treatment.
A hospital, doctor or other health care professional is not liable for all the harms a patient might suffer. They are only legally responsible for harm or injuries that resulted from their deviating from the quality of care that a competent doctor would normally provide in similar situations, and which resulted in harm or injury for the patient.
The law in Ghana provides that for a patient to be successful in a suit against a hospital or medical doctor, the person must be able to establish three things:
• The law states that there are recognised medical standards by which a hospital, doctor, nurse, laboratory technician and all health care professionals should adhere to when providing care for patients.
The medical profession recognises these standards. Patients have the right to expect to receive these standards when they are being treated. If the standard of care is seen to be violated, then it can be said that there is negligence.
• A claim cannot be made if the patient feels the doctor or hospital was negligent but it resulted in no harm or injury. The patient has to prove that the negligence caused the injury or harm, and that the injury or harm would not have occurred had the health care provider or professional not been negligent.
If the patient is not happy with his/her outcome, that in itself is not negligence. It is only legally wrong when it is proven that the negligence caused the harm or injury. An injury with no negligence is not a legal wrong.
The law further says that for such a suit to succeed, the patient has to show that the injury or harm caused by the medical negligence resulted in considerable damages.
Examples of considerable damage include suffering, enduring hardship, having to live in constant pain, considerable loss of income, and injury that disabled the patient.
Admittedly, the law on medical negligence, though part of Ghana’s laws, has not been resorted to by many patients who hold grievances against hospitals and health care professionals, to put the professionals on their toes. This may be due to lack of education and the Ghanaian spirit to “let it go” and not to harm a relative or friend.
The courts are ready to do justice to all manner of people whose rights are abused and in few cases where the aggrieved patients have gathered the courage to go to court, the courts have lived up to expectation by holding the health facilities liable and awarding damages as the justice of the case warranted.
In the case of Asafo v Catholic Hospital of Apam [1973] 1 GLR 282, the plaintiff's six-week-old daughter was admitted as an in-patient at the defendant’s hospital.
The child was kept in the special ward for children and was fed three times a day only on the instructions and at the invitation of the hospital staff on duty.
Due to the age of the child, her mother had to sleep at the hospital in order to breastfeed her but neither the plaintiff nor the mother had access to her except at the invitation of the hospital authorities.
The child suddenly disappeared and nobody knew her whereabouts. The plaintiff instituted action against the defendants for damages due to negligence.
Edward Wiredu J (as he then was) sitting at the High Court Cape Coast held that by accepting the child into their custody for treatment, the defendants became duty bound to ensure her safe custody and to deliver her back to the plaintiff whether dead or alive. He awarded the plaintiff damages against the hospital as a result of the breach of that duty.
Further, in the case of Asantekramo v Attorney-General[1975] 1 GLR 319, the plaintiff, a healthy housewife of 19 years of age, was referred to the Okomfo Anokye Government Hospital by a private medical practitioner after he had diagnosed a case of ruptured ectopic pregnancy.
The doctor in charge of the government hospital examined the plaintiff and decided that she needed an urgent operation. In the course of the operation her right arm became swollen and gangrenous, following blood transfusion administered to her by the nursing staff, through a vein in the right arm.
The arm was later amputated to save her life. The plaintiff, therefore, sued the hospital, represented by the Attorney-General, claiming damages for negligence on the part of the hospital staff.
Taylor J (as he then was) held that the bacteria which caused the gangrene could only have entered the plaintiff's body when the nurses or those in charge of the infusion apparatus, the needle and the drip stand, failed to sterilise them and held the hospital staff liable in damages for the loss caused to the plaintiff for pain and suffering; for loss of future earnings; for expenses for maintaining and employing a maid-servant; and for loss of her marital status and diminution in prospects of remarriage.
The courts in Ghana are there to do justice and I believe from the facts presented by you, your sister should contact a lawyer who will guide her to prepare her evidence to enable her have a successful trial.
