Introduction

Negligence can be defined as the omission to do something which a reasonable man, guided upon considerations which regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

On the other hand, medical negligence relates to the failure or deviation from medical professional duty of care or the failure to exercise an accepted standard of care in medical professional, skills or knowledge, resulting in injury, damage or loss.

When does negligence occur?

For negligence to arise, there must have been a duty of care which must have been breached by the one person (the defendant), and the breach of that duty of care must have been the direct or proximate cause of the loss, injury or damage.ⁱ

With regard to medical negligence, the breach of duty is one equal to the level of a reasonable and competent health worker. To show deviation from the duty, one must prove that;

a) it was a usual and normal practice;
b) that a health worker has not adopted that practice;
c) that the health worker instead adopted a practice that no professional or ordinary skilled person would have taken.
d) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.ⁱⁱ

There exists a duty of care between a patient and doctor, hospital or health provider, and once that relationship is established, then the doctor has a fourfold duty. A party who holds himself as ready to give medical advice or treatment impliedly undertakes that he is possessed of skills and knowledge for the purpose and such person whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties namely;

a) a duty of care in deciding whether to undertake the case,
b) a duty of care in deciding what treatment, and;
c) a duty of care in his administration of treatment.ⁱⁱⁱ

The High Court of Uganda previously found a medical clinical officer negligent for failing to consult a specialist and for not adhering to all the required procedures outlined in clinical guidelines before prescribing methotrexate to the plaintiff. Additionally, he neglected to advise the plaintiff to use contraceptives, resulting in her conceiving while on the drug and subsequently suffering a miscarriage.^iv

To establish negligence, it is also essential to prove causation. The test for causation is whether the plaintiff would have suffered harm if the defendant had not been negligent. If it is determined that the plaintiff would have suffered harm regardless of the defendant’s actions, the defendant's negligence cannot be considered the "but for" cause of the harm. Therefore, a medical professional will only be held liable if it can be demonstrated that, had it not been for their negligence, the plaintiff would not have suffered injury.^v

What is the standard of care in medical negligence cases?

The standard of care in medical negligence differs from that of ordinary cases of negligence. If a professional man possesses an art, he must reasonably be skilled in it, he must also be careful, but the standard of care, which the law requires, is not insurance against accidental slips. It is such a degree of care as normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances of the case, and in applying the duty of care to the care of a surgeon, it is peculiarly necessary applying duty of different kinds of circumstances that may present themselves for urgent attention.^vi

Where you get a situation which involves the use of some special skill or competence, the test as to whether there has been negligence or not is not the test of the man on top of the Clapman omnibus, because he has not got that skill. The standard of care is that ‘reasonably expected of a reasonably competent professional with respect to a particular field”. That is, a specialist must exercise the ordinary skills of his specialty.^vii

All this means that in a case for medical negligence, the burden lies on the plaintiff to prove that the injury or damage was caused by negligence and was not the question of accident. This burden must be discharged on a preponderance of evidence.

What remedies maybe available?

The following remedies maybe sought from the court;

1. Special damages for medical and funeral expenses. Special damages refer to those damages that relate to past loss calculable at the date of trial and encompass past expenses and loss of earning which arise out of special circumstances of a particular case.^viii Such damages must be both pleaded and proven before the court. Proof usually involves providing receipts, bank statements, and any other evidence. However, proving some expenses, particularly funeral costs, may be more challenging.

2. General damages. When awarding general damages for medical negligence, the court considers various factors. These may include negligence resulting into unlawful death, loss of life, loss of care, pain and suffering, mental and psychological torture, anguish, pain, and the loss of a parent, spouse or relative, among other considerations. If the negligence led to loss of life, the court will take into account the age of the deceased when determining the amount of general damages to award.

Conclusion

Claims based on medical negligence are notoriously difficult and costly to pursue, largely because much of the critical evidence is held by hospitals and doctors, leaving victims heavily reliant on expert testimony. Despite these challenges, courts carefully assess the considerations mentioned above to determine whether there was a breach of duty and, crucially, whether that breach directly caused the injury or harm in question. The complexity of such cases reflects the importance of thorough legal and medical examination. Ultimately, a successful claim depends on demonstrating both negligence and causation, presenting convincing expert evidence and thorough preparation.