Assessing the Legal Mechanisms for Redressing Medical Malpractice in Kenya: Just How Effective are They?

Abstract

In the recent past, claims of medical Negligence/malpractice by medical practitioners have been on the increase with most of the victims blaming the procedural inadequacies in the disciplinary process. One of the major contentions is that the Medical Practitioners and Dentists Board does not have the powers to effectively deal with unethical conduct of medical practitioners, and even where it has such powers, the Board has been reluctant to adequately exercise and deal with the problem. First, the Board does not have the power to order compensation to affected parties even where a doctor has been found culpable, they can only order parties to record mediation. More often than not, these mediation processes do not bear any fruits leaving the victim with only the option of going to court which is sometimes too expensive for the majority of Kenyans, thus most doctors easily get away with such malpractices. Secondly, even though the Board has the power to withdraw the license of a doctor found to be in breach of the code of conduct, the Board has always exercised this power with great restraint. The feeling therefore is that the expected deterrent effect of this procedure is not felt and therefore the more reason why cases of medical negligence/malpractice are on the increase. Whether or not the Board can recommend prosecution of the practitioner in question and just how serious such recommendations would be taken by the relevant authorities is still unclear. The question then is, just how effective are the legal mechanisms for addressing medical malpractice in Kenya? Is it a matter of gaps in the law or are those charged with this responsibility too reluctant or just unwilling to execute their duty?This paper seeks to interrogate these issues. The paper looks at the legal framework governing the conduct of medical practitioners in Kenya. It mainly focuses on the available legal mechanisms of seeking redress in case of medical malpractice attributed to a medical practitioner with the aim of pointing out the inadequacies therein. The paper lays emphasis on the disciplinary procedure for medical malpractice/negligence.