BACKGROUND
In my preparation to sue the said hospital it gleaned on me to put together this article to throw more light on the legal framework, key statistics, notable cases and potential solutions. In recent years, the Ghanaian healthcare landscape has witnessed a significant shift.
What was once a culture of “silent endurance” “fa ma Nyame” regarding medical errors has evolved into a more litigious and rights-conscious environment.
With high-profile court rulings and million-cedi settlements making headlines, medical negligence has moved from the shadows of hospital corridors to the forefront of national discourse.
INTRODUCTION
What is Medical Negligence?
Medical negligence, also known as medical malpractice, occurs when a healthcare professional such as a doctor, nurse, or healthcare provider, owes a patient a duty of care but breaches the standard expected of a reasonably competent healthcare professional expected in their field, resulting in harm, injury, or death to the patient.
This issue has gained increasing attention in recent years, with reports highlighting a surge in cases that burden the healthcare system, patients, and the economy. Over the past decade, allegations of negligence have risen sharply, often involving errors in diagnosis, treatment, or surgical procedures.
UNDERSTANDING THE LEGAL FRAMEWORK
In Ghana, Medical practice is primarily regulated by the Health Professions Regulatory Bodies Act, 2013 (Act 857). This law empowers the Medical and Dental Council (MDC) to maintain standards and discipline for practitioners.
However, medical negligence is primarily addressed through the common law principles of tort law, where patients can sue for damages if they prove a duty of care was owed, breached, and caused harm. Each element demands careful proof, and the courts have historically applied the Bolam standard, derived from the English case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 as the touchstone for professional conduct. The Bolam test is simply: a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion.
However, criminal liability can arise under the Criminal Offences Act, 1960 (Act 29), particularly in cases of manslaughter due to gross negligence leading to death. There is no standalone legislation specifically for medical negligence, but related laws include the Health Professions Regulatory Bodies Act, 2013 (Act 857), which governs professional conduct, and the Patients’ Charter under the Ghana Health Service.
Breaches can lead to disciplinary actions by bodies like the Medical and Dental Council. Concurrent actions in tort and crime are permissible, allowing victims to pursue both civil compensation and criminal prosecution for the same act.
HOW TO SEEK REDRESS
If a patient suspects negligence, there are three primary pathways for seeking justice:
1. The Medical and Dental Council (MDC): Patients can file a formal complaint for professional misconduct. The MDC can suspend or revoke a practitioner’s license.
2. The Commission on Human Rights and Administrative Justice (CHRAJ): Useful for cases involving public health facilities where administrative failures led to a breach of the right to health.
3. The Court System: For those seeking financial compensation, a civil suit is the standard route. It is vital to serve a 30-day notice to the Attorney General office if suing a public hospital. To successfully sue for negligence, a plaintiff must prove four critical elements:
a. Duty of Care: A legal obligation was owed to the patient (usually established once treatment begins).
b. Breach of Duty: The professional failed to meet the required standard of care.
c. Causation: The breach directly caused the injury (the “but-for” test).
d. Damages: The patient suffered actual physical, emotional, or financial loss.
Importantly, the Limitation Act 1972 (NRCD 54) generally requires claims to be filed within three years from when the cause of action accrues.
THE DOCTRINE OF RES IPSA LOQUITUR
Where direct evidence of negligence is unavailable, Ghanaian courts have invoked the doctrine of res ipsa loquitur, which simply means “the thing speaks for itself,” to raise a presumption of negligence. This doctrine operates where the nature of an injury is so patently the product of someone’s carelessness that it could not reasonably have occurred otherwise.
In the landmark Ghanaian case of Asantekramo alias Kumah v Attorney-General [1975] 1 GLR 319, the court relied on this doctrine in deciding that a hospital was liable for the negligent amputation of a patient’s limb. The presumption, however, remains rebuttable: the healthcare professional may still discharge it by demonstrating that the injury occurred without any breach of duty.
COMMON EXAMPLES OF MEDICAL NEGLIGENCE IN GHANA
Medical negligence can arise in a wide range of clinical settings, including:
- Delayed or denied treatment, such as refusal to treat a patient in an emergency unless specific payment conditions are met.
- Surgical errors, where mistakes during procedures result in serious harm or later complications.
- Equipment failures and poor facility conditions, as seen in reports of patient harm linked to non-functional equipment.
- Misdiagnosis or failure to diagnose conditions accurately or in time, leading to preventable harm.
Ghana faces significant financial and human costs from medical negligence. According to reports, the country loses approximately GH¢10 million annually to settle negligence claims, with some facilities alone accounting for that amount in payouts. A study analysing malpractice cases found that negligence dominates, comprising about 78% of reviewed legal actions.
Specialities most affected include Obstetrics and Gynaecology, Surgery, and Pediatrics. Media reports indicate a phenomenal increase in allegations, though many do not proceed to court due to financial barriers or cultural factors like resignation to fate.
NOTABLE CASES
Several landmark cases illustrate the complexities of medical negligence in Ghana. In a systematic analysis of nine case laws, patterns emerged around issues like practicing without a license, refusal to treat, and post-surgical complications. For instance, in STATE VRS K. NKYI [1962] GLR 197, a student nurse was convicted of manslaughter after injecting a baby with arsenic instead of mepacrine, highlighting the risks of unsupervised practice. Another pivotal case is ASANTEKRAMO ALIAS KUMAH VRS ATTORNEY-GENERAL [1975] 1 GLR 319, where a patient’s arm was amputated following complications from an ectopic pregnancy surgery at Komfo Anokye Teaching Hospital. The court found the hospital negligent, awarding substantial damages. More recent discussions point to a surge in media-reported incidents, including deaths from misdiagnosis or delayed care, underscoring the need for better oversight.
GYAN VRS. ASHANTI GOLDFIELDS CORPORATION, 1 GLR 466 (1990), a senior nurse was found negligent for assuming the role of an experienced physician beyond her scope of qualification and training. The court held that performing clinical duties outside one’s competence, irrespective of seniority, constitutes a breach of the duty of care. This precedent remains instructive for understaffed facilities where boundary-crossing is systemic rather than exceptional.
CAUSES AND IMPACT
Root causes of medical negligence in Ghana include understaffing, inadequate training, resource shortages, and poor communication. High workloads in public hospitals exacerbate errors, while private facilities may face issues with unqualified practitioners. Impacts are profound: patients suffer physical harm, emotional trauma, or death; families endure financial burdens; and the healthcare system loses public trust. Economically, the annual GH¢10 million loss diverts funds from essential services. Broader societal effects include increased litigation, which, while holding professionals accountable, can deter practitioners from high-risk specialties.
PREVENTION AND RECOMMENDATION
To mitigate medical negligence, the establishment of a specialised healthcare court to expedite cases. Enhanced medico-legal training for professionals, emphasizing common pitfalls like informed consent and record-keeping is crucial. Mandatory professional indemnity insurance for healthcare workers as suggested in public discourse could protect both parties. Strengthening regulatory bodies and promoting patient education on rights under the Patients’ Charter would foster accountability. Integrating AI tools for diagnostics, while updating laws to address related negligence, offers a forward-looking approach. Legal experts are currently debating “algorithmic negligence”: who is liable when a machine-learning tool misinterprets a scan? Current interpretations suggest that the human practitioner remains the final “safety net” and holds ultimate responsibility.
THE CASE FOR LEGISLATIVE REFORM
The most significant structural gap in Ghana’s response to medical negligence is the absence of dedicated legislation. Unlike several jurisdictions that have enacted specific medical or healthcare liability statutes, Ghana continues to rely entirely on the common law of tort, a system that demands considerable legal sophistication from claimants, orders no prescribed timelines, creates no mandatory disclosure obligations on providers, and makes no provision for a structured compensation scheme. The recommendations emerging from academic, legal, and advocacy quarters converge on several key proposals. I propose for the creation of a specialized healthcare court equipped with the technical competence to evaluate medical evidence without undue dependence on partisan expert witnesses. I further advocated for the establishment of a dedicated Medical Jurisprudence discipline at Ghanaian universities, merging the study of medicine and law to produce professionals capable of navigating this complex terrain.
The Malm-Hesse Medical Negligence Project (2022–2023) represents a promising pilot in this direction, having trained health providers in Greater Accra on legal frameworks, negligence prevention, and patient rights.
CONCLUSION
Medical negligence in Ghana represents a critical intersection of healthcare delivery, law, and ethics. With rising cases and substantial costs, urgent reforms are needed to safeguard patients and support professionals. The rise in medical negligence claims is not necessarily a sign of declining healthcare quality, but rather an indicator of an informed citizenry. Holding healthcare practitioners legally responsible for negligence is essential; it will promote higher standards of care and restore public confidence in the healthcare system. While the law provides a shield for patients, the ultimate goal remains a healthcare system where safety protocols such as pre-operative checklists and prophylactic therapies are followed so rigorously that the “shield” is rarely needed.
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DISCLAIMER: The Views, Comments, Opinions, Contributions and Statements made by Readers and Contributors on this platform do not necessarily represent the views or policy of Multimedia Group Limited.
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