CS caused my child a severe birth defect; can I sue for negligence?

Caesarean section caused my child a severe birth defect; can I sue for negligence?

Dear Vivian,

I went to a private hospital while in labour. The doctor advised that I was not ready to deliver and would be admitted to the maternity ward for observation. I was left unattended for 16 hours and upon the doctor’s return, my case had escalated to emergency. The caesarean section was urgently recommended, which resulted in my newborn suffering from severe birth asphyxia and being diagnosed with cerebral palsy. I am considering legal action and would appreciate your guidance on whether it is possible to sue for negligence.

Sharon Muthoni,

Ndaragwa

Dear Sharon,

The Constitution of Kenya and the Health Act underscore the fundamental right to health, particularly maternal health.

Healthcare providers bear a significant duty to uphold the highest attainable standard of health for expectant mothers.

This legal framework establishes the duty of care owed to patients during childbirth and could serve as a crucial foundation for your potential legal claim.

To win a medical 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.

This is when a medical professional causes injury to their patients in the course of treatment through errors of commission or omission.

The precedent set in the case of PKM & GSM v Nairobi Women Hospital & Mutinda further emphasises the responsibility of healthcare providers and institutions for medical negligence during childbirth.

This legal judgment highlights that medical practitioners and hospitals can be held liable for negligence resulting in severe birth complications.

A good place to begin would be by lodging a medical malpractice complaint with the Kenya Medical Practitioners and Dentists Board.

Do so by submitting any supporting documents. Consult a medical expert and ask them to prepare a report for you regarding the standard of care you received.

It is important to note, however, that the board will not order the medical practitioner to pay you for the harm suffered.

It is advisable that as you seek to have the practitioner held liable, you also file a civil suit on the grounds of negligence in court to get the payment of harm suffered.

As you commence the process, note that medical negligence claims have four essential elements:  duty of care, breach, causation and harm.

That is, 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 not all medical errors amount to breach of duty.  

Finally, 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.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).