LIABILITY OF SKILFUL DEFENDANTS

/PROFESSIONAL

The concept of professional or skilful defendant refers to

individuals or entities with specific knowledge amd
expertise in there professional fieds such
Doctors,Laqwyers,architectures, engineers etc

According to the black’s law dictionary defines

professional to mean aperson,who is a member of the
professional body due to the education qualification and
follows the prescribed moeal and professional code of
conduct.

The law of tort treats defendants according to the standard

of care to be expected of them.

The liability depends on whether one is a professional or

not. Scrutton LJ defined a profession in Commissioners
of Inland Revenue v Marse(1919) 1 KB 647 as a
Profession in the present use of language involves the
idea of an occupation requiring either purely intellectual
skill or manual skill controlled as in painting or sculpture
or surgery by the intellectual skill of the operator, as
distinguished from an occupation which is substantially
the production or sale or arrangement for sale of
commodities’

Professional liability mainly focuses on medical

professionals, lawyers, etc

. The liability of professional negligence is not any

different from any other aspects negligence where the
defendant has some special skill.

It is important to note that a professional does not

guarantee any particular results but only what is
reasonable. However, professional liability does not
involve some important distinction in the operation of tort
rules, which determine the scope of liability.

1. Professionals do not guarantee results’

2. The law of tort also recognises the operation of self
regulation in determining the standard of care to be
expected of professionals.

In Bolam v Friern Hospital Management committee,

the court held that a medical practitioner acting in
accordance with a practice accepted by a responsible body
of opinion was not negligent merely because there is a
body of opinion which would take a contrary opinion.

3. Public interest may also influence the treatment of

professionals. It is also considered that they owe duties to
the wider community and not only to particular
individuals. It was established in the case of Herdley
Byrne v Heller, that professionals are liable in negligence
to their clients independent of contract.

The underlying principle is that where a person

undertakes to provide the service to another person
knowing that the latter reasonably relies on his
professional competence and judgement, a duty of care
arises, whether the loss suffered is physical damage or
economic loss.

Medical Professionals

These are standards of care set for medical professional

to follows treating patients.

professional can be liable under negligence if he/she

does not follow the set standard of care in treating
patients.In Stanley kamihanda vs Attorney general,HCCS
No.1201 of 1998 and the Kenyan case of kimmy paul
semenye Vs Aga khan Hospital and 2 others (2006)
KLR.It is articulated as follows there exists aduty of care
between the patient and the doctor,hospital or health
provider and once that relationship is established,tjhen the
doctor has a fourfold duty.A party who holds himself as
ready to give medical advice or treatmeant impliedly
undertakes that he is possessed of skill and knowledge for
the purpose and such person whether he is aregistered
medical practitioner or not,who is consulted by a
patient,owes him certain duties namely,a duty of care in
deciding whether tob undertake the,a duty of in deciding
what treatmeant and aduty of in his administration of
tra=eatment.

In case of Donogue Vs Steavenson it was stated you must

take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to in injure your
neighbor

Ratioale

To protect patients from injuries caused by negligent acts

of medical professionals.

Elements of medical negligence (Donogue vs steavenson)

1.Duty of care

2.Breach of duty

3.Damage caused to plaintiff

A DUTY OF CARE
A medical professional owes a duty of care to his patient
irrespective of contract.

A medical professional is liable for any errors committed

in the treatment of the patient, which are as a result of the
failure to exercise reasonable care and skill.

McNair J stated the standard of care required of a

medical professional in Bolam’s case

The test is the standard of ordinary skilled man exercising

and professing to have that special skill. A man need not
profess the highest expert skill, it is well established law
that it is sufficient if he exercises the ordinary skill of a
competent man exercising that particular art The
practitioner in question is to be judged in light of his own
qualification.

Furthermore, the standard of care is to be judged in

reference to opinion in the particular field. A practitioner
is not negligent if his conduct conforms to accepted
practices according to Bolam’s case.

The duty of care in negligence also requires that the

professional warns the patient of any inherent risks in the
choice of medication or medical procedure.

Sideway v Governor of Bethlehem Royal

The ways the medical practitioner4 can exercise this duty

that he owes to the patient the ways have gradually
become to be called duties by Lord Diplock.

Duty to diagnose

A medical practitioner is under a duty to check place,

cause, nature and type of the pain which a patient is
suffering. This is the only way a medical practitioner can
find a proper cure to the patients sickness therefore
departing from it will be acting unprofessionally and any
injury caused may be as a result of negligence
Duty to give clear and accurate drug prescription. Medical
pratitoner have the duty to ensure that the does give the
patients fit the proper quantities and quality\

Duty to construct advice and warn the patient.the

practitioner ought to warn and advise the patientof the
situation treatment and the nature of the aftermath.

Duty to refer

Unlike in the legal profession, medical practitioners are

not required to know everything and there is no
assumption that they know everything hence have a duty
to refer to a proper hospital or doctor incase of doubt or
uncertainty.

A Duty not to experiment

Under Article 24 of the 1995 Constitution bares any

inhuman and degrading treatment to a person therefore a
person must be treated with dignity, protection,
prevention from torture. The medical practitioner can only
practice or exercise a method of treatment that has been
already tested and ready to be applicable in problem
solving.

In Carpenter v Blake(1871)60 Barb 488,523, A Newyork

Court emphasized that, when the case is one to which the
system of treatment has been followed for a long time
there should be no departure from it unless the surgeon
who does it is prepared to take the risk and establishing
his success the property of experiment.

Duty of Confidentiality of the patient

A medical practitioner during exercise of his duty is under

an obligation not to disclose the patients information since
it includes the personal secrets which a patient would not
wish to with anyone apart from the doctor. However this
can be done with the consent of the patient.

A duty not to exceed the patients consent

A practitioner is only allowed to treat a patient in a
manner which does not go beyond what the patient had
consented on.

A duty to attend to the patient when called upon

A doctor is required to attend to a patient in time when

called upon at the hospital and if the doctor fails to come
in time and the patient dies as a result of the doctors
coming late then it will be termed as negligence for
example in the case of Barnett v Chelsea & Kenington
Hospital Management Committee (1969)1 QB 428, it was
held that the doctor was negligent in coming late but his
coming late had not caused the plaintiffs death therefore
not liable.

INSTANCES OF LIABILITY

A medical practitioner must observe their statutory duties

in line with the code of behavior set for them. Liability
should only come in when they diviet from their code of
ethics because the breach of any will be termed as
negligence if any injury is caused to the patient for
example in the case of Wilsher v Essex Area Heallth
Authority (1986) ALLER 801, a premature baby was
given excess oxygen and the doctors were held for
medical negligence.

In the case of Benard Mulengani v Attorney General &

others, it was held that to establish the liability of a health
worker it must be shown that there was a deviation from
normal practice that the medical worker has not adopted
the practice and the course adopted by the healthy worker
is one that is not professional of the ordinary skill which
would have been taken.

Who can sue?

A person who has suffered injury as a result of the

medical practitioners negligence.

Who is liable?
Liability under medical negligence can either be the
personal liability or vicarious liability depending on the
circumstances.

DEFENCES

Necessity

Accident

Act of God

Consent

Limitation of actions (Section 3 of the Limitation Act

after lapse of six years no suit can be brought in torts)

REMEDIES

General damages

Special damages for loss incurred

Costs for the suit (Section 26 of the Civil Procedure Act)

Legal Professionals

In the case of Rondels v Worsley the House of Lords

held that Barristers are under a duty of care to their clients
just like other professionals.

However, there is immunity extended to them. In the

above case, the court held that it was of vital importance
that the barristers fulfil their duties to the court and their
clients without fear or favour.

The standard of care is the same as Bolan’s case. i.e in

reference to opinion in the particular field

Bitumuka v Trustees of Uganda

The plaintiff aged 22 yrs Pope John’s Hospital v baby

Kasozi This was an action brought by an infant through
his father as next friend for damages in respect of injury
to his eye during birth.
The action was against the doctor who effected his birth
and his hospital where the birth took place. The birth was
a difficult and prolonged affair

Roe v Minister of Health

The plaintiffs went to hospital for minor surgery but as a

result they were paralysed from the waist down ward. The
paralysis was a result of the fact that ampoules of
anaesthetic, nupercaine, which was administered through
the spine, had tinny cracks in them, which allowed phenol
the disinfectant to contaminate the anaesthetic. The doctor
was in private practice but was required to give regular
service at the hospital.

The Court of Appeal held that the doctor was not liable.
Lord Denning held, If the anesthetists had foreseen that
the ampoules might get cracked with cracks that could not
be detected or inspected they would no cloulsh have dyed
phenol a deep blue and this would have exposed the
contamination. But i do not think that their failure to
foresee this was negligence.

It is so easy to be wise after the event and to condemn as

negligence that which was only a misadventure. We ought
to be always on our guard against it, especially in cases
against hospitals and doctors. Medical science had
conferred great benefits on mankind but these benefits are
attended by considerable risks. We cannot take the
benefits without the risks. Every advance in technique is
also attended by risks. Public policy considerations.