Medical Negligence Law

When a medical professional fails to identify and diagnose a patient’s symptoms, or gives the wrong diagnosis and incorrectly diagnoses the patient’s symptoms.

When a surgeon has performed the wrong surgery on a patient and has caused more harm.

When a medical professional has prescribed the wrong medication or supplied the wrong dosage.

When medical staff have failed to recognise serious conditions, or if a mother and their baby have received poor care during childbirth, which has resulted in a birth injury.

Medical negligence claims can be complex and challenging, so it is vital to consult with a specialist clinical negligence lawyer to guide you through the process effectively.

In our meeting, we’ll advise you about the prospects of success, the potential value of your medical negligence claim, and how long it will take.

In every medical negligence case, we have to get your medical records to prove medical negligence. We will review and investigate your set of medical records in detail. We may also obtain a second medical opinion from an independent doctor.

At Hassan Luk, we instruct a medical expert who will obtain your medical records and will gather medical evidence, including any x-rays and doctor’s notes, and compile all the findings into a report which will be presented to the court.

We'll then write to the Hospital that you’re taking legal action. Normally, they've 7-14 days to respond. They may propose a settlement.

Only a small percentage of medical negligence claim go to trial. However, if the hospital denies liability or we can’t agree a suitable settlement, we may need to start court proceedings.

Court proceedings can take some time, but rest assured that we will do everything possible to ensure your case is successfully concluded before the trial date.

Most cases don’t get to this stage because the vast majority of cases are settled without any court hearing. Once both parties have assessed the evidence in detail, it is often possible to negotiate a settlement. Your case may be settled because the defendant no longer feels they are able to defend the case or proceed to trial.

Some cases do proceed to trial and it is always necessary to prepare for trial. At a trial, a judge will listen to the evidence, particularly the evidence of the independent experts, and decide whether or not your claim succeeds. The length of the trial depends on the complexity of the case.

Medical negligence is where a healthcare professional caring for you administers the incorrect treatment, inadequate treatment or misdiagnoses and you suffer an injury, or your health worsens as a result.

You were owed a duty of care by the healthcare provider
This duty is usually automatically established when a doctor-patient relationship exists.

The clinician breached their duty of care
This typically involves demonstrating that their actions or omissions fell below the standard of care expected from a reasonable and competent healthcare professional. Sometimes, this is obvious, for example, if an instrument is left inside you after surgery, but more often it requires extensive medical evidence.

Result or causation
The medical professional’s negligence directly caused your injury or worsened your condition. This is known as ‘causation.’ For example, imagine if a patient visits their general doctor several times with signs of cancer but the doctor doesn’t refer them for tests. The doctor’s actions may be negligent, but proving causation is more complex. It requires expert evidence to show that if the referral had been made earlier, treatment could have started sooner and that would have led to a better outcome.

Actual harm
You suffered actual harm, injury, or financial loss due to the negligence. This can include physical injury, emotional distress, medical expenses, loss of income, or other damages.

Duration
The incident happened within the past three years or you became aware of the negligence no more than three years ago. There are a few exceptions to this rule but, generally, claims made after three years are considered time-barred and will not be accepted by the court.

Medical misdiagnosis
Where a condition gets missed and goes undiagnosed or when a diagnosis is wrong, including misdiagnosis of cancer.

Pregnancy and birth injuries
Sustained by the mother or baby during pregnancy, labour or after birth.

Prescription errors
You have been prescribed the wrong medication, incorrect dosage or together with another drug that shouldn’t be taken together.

Mistakes during surgery
Include incidents where the wrong operation was performed, infections caused by poor hygiene and cosmetic surgery that has led to disfigurement or scarring.

Negligent clinical advice
Failure to warn of risks, including making alternative treatments clear so that you could make an informed decision.

• General practitioners (GPs), specialists, surgeons, and hospital doctors can all be held accountable for medical negligence
• Nurses, nurse practitioners, and other nursing staff members may be liable if they breach their duty of care to a patient
• Dentists and orthodontists can be liable for negligence if they provide substandard care or make mistakes during dental procedures
• Pharmacists – who dispense medication incorrectly or provide incorrect information about medications
• Midwives – can be sued for negligence if they fail to provide appropriate care before, during, or after childbirth, leading to harm to the mother or baby
• Anesthesiologists – who administer anaesthesia incorrectly or fail to monitor a patient’s vital signs during surgery
• Ophthalmologists – (eye care professionals) if they provide incorrect prescriptions, misdiagnose eye conditions, or perform eye surgery incorrectly, and
• Radiologists who misinterpret medical imaging, such as X-rays or MRIs, and provide inaccurate diagnoses.

Medical negligence claims are subject to strict time limits, which, if missed, means you could lose the opportunity to pursue your case forever. This time limit is known as the limitation period.

The law governing the medical negligence limitation period is set out in The Limitation of Actions Act, Cap 22, Laws of Kenya. In short, you must issue a Claim at Court within three years of the date of negligence or the date you first knew about the negligence, whichever is later.

The three years can slip by quickly, and delay increases the risk of losing vital evidence. Therefore, we recommend consulting a lawyer, ideally no later than 12-18 months after the incident of negligence, to avoid the problems caused by delay and to give your claim the best chance of success.

Suppose someone has died due to medical negligence. In that case, the limitation period is calculated to expire three years from the injured person’s death date or the date of the Personal Representative’s knowledge, whichever is the latter.

Where the person bringing the claim lacks mental capacity, there is no time limit for issuing court proceedings. Assessing capacity is not always straightforward, and lawyers must tread carefully when determining whether their client lacks the capacity to make their own decisions.

The limitation period for any claim brought by a child (defined as those under the age of 18) does not begin to run until the date of their 18th birthday, which effectively means that they have until their 21st birthday to issue court proceedings.

Where the person bringing the claim lacks mental capacity, there is no time limit for issuing court proceedings. Assessing capacity is not always straightforward, and lawyers must tread carefully when determining whether their client lacks the capacity to make their own decisions.

It is very difficult to say exactly how long a medical negligence claim will take from start to finish. It depends on the nature of your case, the complexity of your case, and how long it takes to obtain all the evidence (medical records, witness statements, medical reports, etc).

It also depends on the stance the Defendant takes. If the Defendant admits liability for your injury, we can apply for an interim payment of damages on your behalf to assist in speeding up the litigation process.

Compensation amounts for medical negligence claims can vary significantly based on individual circumstances. Several factors are considered to determine the amount. These include the severity and impact of the injury, loss of earnings, future care needs, and any additional expenses incurred due to the negligence.

• Wrongful amputation case settles for 7-figure sum
• 6-figure settlement for infusion leak to mother
• Spinal Fracture Case Settles for 7-figure Sum

When it comes to medical negligence we offer a zero-deposit policy, and we can charge our fees later upon conclusion or settlement of your case. To protect your interest against any adverse costs we use the Law Society of Kenya's approved Advocates Remuneration Order.

Most cases are settled once all the investigations are completed before legal proceedings are issued. As long as the case has good supporting medical evidence, most cases settle without the need to go to court.

It is in everyone’s interest to avoid court, so both sides are encouraged to settle matters quickly to avoid extra costs.

However, even though most cases settle well before going to trial, you should ultimately be prepared for going to court so a judge, having heard all the evidence, can decide whether the treatment was negligent.

A Demand Letter is a formal claim or demand document that our lawyers send to a healthcare provider, alleging that negligent care caused harm. This letter outlines the details of the negligence, the resulting injuries, and the compensation sought. It is the first step in the pre-action protocol for medical negligence claims, aiming to inform the healthcare provider of the claim and encourage early resolution without court proceedings.

Our team regularly receives calls from clients who have instructed other law firms, asking, if it is "possible to change their lawyer?"

If you have a claim but are not happy with the advice you are receiving, we have specialist lawyers able to assist.