Diagnosis disaster: The test was wrong, but my husband had already judged me, what's my legal recourse?

Dear Vivian,

I was initially diagnosed with HIV during a medical check-up, which deeply strained my marriage, as my husband had tested negative and assumed I had been unfaithful. This led to significant tension and anguish in our relationship. However, during a follow-up test, it was revealed that I am actually HIV-negative and that the initial diagnosis was a mistake. While I am relieved by the corrected results, the misdiagnosis caused me emotional distress and almost destroyed my marriage. I feel that this error has violated my rights, but I am unsure if I have any legal recourse. Please advise.

Rita Mwabili,

Voi

Dear Rita,

Your experience raises legal and ethical concerns about the responsibilities of healthcare providers, particularly regarding your rights to health, dignity, and accurate medical information.

The Constitution guarantees the right to the highest attainable standard of health, which includes accurate and reliable medical testing. A misdiagnosis as profound as an incorrect HIV-positive result can have far-reaching consequences. In your case, the emotional distress and strain on your marriage indicate a potential breach of the standard of care owed to you. This error highlights the healthcare provider’s failure to uphold their duty to ensure precise and verified results before delivering such life-altering information.

Your right to dignity is equally significant. The stigma and judgment due to an HIV-positive diagnosis, coupled with the impact on your marriage, illustrate how such a misdiagnosis can erode your self-worth. Moreover, your right to accurate information, also protected under the Constitution, was violated when the healthcare provider miscommunicated your health status. This underscores a lack of due diligence, further breaching the fundamental standards of care.

Read: Baffling case of misdiagnosis that led to mother’s tragic death

Legally, healthcare providers owe patients a duty of care. A misdiagnosis resulting from negligence can form the basis for a medical negligence claim. To establish negligence, you would need to prove that the provider failed to meet the expected standard of care and that this failure directly caused you harm. The emotional distress and marital strain you endured are strong evidence of the harm caused. Kenyan courts have previously awarded damages for medical negligence in cases where individuals suffered harm due to substandard care, reinforcing the possibility of legal recourse in your case.

Beyond filing a negligence claim, you could consider a constitutional petition to seek redress for the violation of your rights to health, dignity, and accurate information. This could also highlight systemic issues in healthcare practices, ensuring broader accountability.

Read: Doctor to patient talk key to avoiding misdiagnosis

To begin, gather evidence, including your medical records and any communications with the healthcare provider. Document the emotional impact and the strain on your relationship, which could strengthen your case. Consulting a lawyer experienced in medical negligence or constitutional law is a crucial next step. Additionally, filing a complaint with the Kenya Medical Practitioners and Dentists Council could prompt an investigation into the provider’s actions.

While legal action cannot undo the harm, it can help you reclaim your dignity and hold the responsible parties accountable.

Vivian

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