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New law of medical negligence is not meant to punish health professionals

by Njabulo
05 Apr 2018 at 08:28hrs | Views
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Dear Editor,

This legislation might be perceived as draconian by the health department employees,but the government has an inherent jurisdiction to establish this law.
The government owes a duty of care to the public. Therefore, this law is meant to protect the public from any harm or risks that may befall the public due to negligence or omission to do something by the health services personnel.

Nothing wrong with that, because this is a universal thing. The law is not meant to punish or target unfairly the heath service workers, but rather the aim is to improve efficiency in the health sector. Doctors and other health services employees, owe a duty of care to all their patients.

Thus they have to measure to an expected standard, expected by the government and the public.

There has/have been many cases of negligence (medical negligence) by some health professionals in Zimbabwe and most of the cases are swept under the carpet due to lack of this law in question(although there are other laws in place, but might not be adequate to address cases of medical negligence).

So,this law is particularly established to hold the government and the health department employees accountable for their omissions or negligence or recklessness during the course of their duties.

What the health professionals must need to understand, is that the government will be the one that will be affected more by this law.

Yes! those health professionals found to have breached a duty of care or being negligent will lose their practice licences or be prosecuted or both or maybe punished in another way.

But since the government is the main employer,liability for any negligence by any employee lies with the employer.

This is called vicarious liability in law. It means when one is being negligent during the course of discharging their duties, their employer will be held liable for their negligent act.

Then the employer will deal with the employee.

If for example, a doctor, through negligence contributes to the death of a patient,the doctor can be convicted for manslaughter.

The government too, as a legal person can be prosecuted. Furthermore, the government will pay compensation but not the doctor. So, many claims of negligence will be unleashed against the government in our country.

The health professionals cannot be deemed to have been negligent if patients died during their strike neither the government can charge them for being negligent.

However, the affected families may take legal recourse or instigate legal proceedings against the state for any harm done or experienced by patients during the course of the strike.

Some people could have their conditions aggravated due to not being treated, if they had been treated they could be in a better state or would not have died, but for the government's failure to provide medical professionals to attend to them that happened.

And one thing for certain, is that the cases of negligence do not just impose liability automatically to health professionals.

It has to be established that there was negligence by the health professionals who work for the government or private entities (e.g. private doctors).

If the case is filed in a competent court of law it might be protracted(alternatively might be settled through dispute resolution or tribunal), the courts have a threshold or tests which they use to establish as to whether the health professional was indeed negligent .

For example, the reasonableness test. It serves as a test and also a defence for health professionals.

For example,in a scenario where a patient is sent back home while in critical condition,that is negligence by a health professional.

So, the court will ask the question as to whether any reasonable doctor would have sent a critical patient home.

And  establish that it was foreseeable to any reasonable doctor  that the patient would die or be harmed if sent home.

But on the other hand, if it it establishes that it was reasonable to take that course of action, then there will be no liability.

The test would have acted as a defence for the health professional.

By Njabulo.

libertyatliberty at gmail dot com

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Source - Njabulo
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