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Claiming Compensation for Medical Errors in Kenya

The right to quality medical care is protected by the Kenyan constitution, but sometimes, the standard of care provided in Kenyan medical centers falls below the acceptable.   Between May 2018 and February 2019, different courts settled four major medical malpractice claims—four leading hospitals in the country were ordered to pay patients compensation in excess of 100 million for medical malpractice.

Tens of medical malpractice cases are filed with the Kenya Medical Practitioners and Dentists Board (KMPDB) every year; others cases of medical malpractice go unreported due to inadequate information or lack of funds to pursue the claims. KMPDB handled more than 600 medical malpractice cases between 2009 and 2019.

Medical errors cause injuries or aggravate existing conditions; if you have suffered injuries due to medical negligence, you can claim various types of compensation through the court process.

What is medical negligence?

To win a medical a malpractice claim, you must prove there was negligence on the part of the physician or medical institution you are suing.  Medical negligence can simply be defined as substandard care — it is when a medical professional causes their patients injuries in the course of treatment through errors of commission or omission.   Examples of medical negligence include wrongful diagnosis, surgical errors, and incorrect treatment.

Proving a medical malpractice claim

Medical malpractice claims mainly involve proving medical negligence and justifying the amount of compensation you are claiming.  Medical negligence claims have four essential elements:  duty of care, breach, causation, and harm. In most instances, you must prove the four elements to win a medical malpractice claim:

Duty of care: You must prove that the party you are suing had a medical duty of care towards you. Doctors have a duty of care towards their patients in that there are expected to provide quality care.

Breach of duty: You should be able to prove that the doctor breached their duty of care by deviating from the reasonable standards of care. The use of the word ‘reasonable’ means that not all medical errors amount to breach of duty.  If another qualified doctor would make the same errors under similar circumstances, such errors do not qualify as a breach of duty.

Causation:  You should prove that the doctor’s breach of duty caused the injuries for which you are claiming compensation.

Harm:  This aspect is closely related to causation. You should prove that the doctor’s negligence caused you actual damage.  To show this, you will need a report from a medical professional as well as the receipts for the expenses you have incurred to remedy the injuries.

The process of filling a medical compensation claim in Kenya

It is advisable to consult a lawyer as soon as possible after suffering the injuries; the process of claiming compensation may vary depending on the circumstances in which the medical errors occurred.

If you are a victim of medical malpractice, you should consider filing a claim with the Kenya Medical Practitioners and Dentists Board (KMPDB).  The board will investigate the allegation and give you time to settle the claim with the doctor if there is evidence of medical malpractice. If you are not satisfied with the resolution of the board, you can file a medical malpractice claim with a court of law. Generally, you should follow the following steps to maximize your chances of winning the claim

  • Prepare your medical records
  • Consult a medical expert and ask them to prepare a report for you regarding the standard of care you received.
  • Write a letter of claim to the doctor or medical institution responsible for the injuries. Be sure to value your claim, i.e., indicate the amount of compensation you expect to receive.
  • File the claim with KMPDB or a court of law.
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