Medical Negligence In Ghana: A Legal Guide For Patients And Practioners

INTRODUCTION

In recent years, Ghana has witnessed a steady rise in cases of medical negligence that have ignited public concern about accountability within the healthcare system. Most of these incidents are due to misdignoses, delayed diagnosis, medical errors, surgical mistakes, birth injuries, failure to monitor, premature patient discharge, poor aftercare, misinterpretion of lab results, amongst others.

In 2023, Linda Adua, a caterer, passed away at the Central Aflao Hospital after nurses allegedly denied her treatment for failing to make an initial cash deposit, even though she was willing to pay via mobile money. That same year, a 29-year-old pharmacist sued the Volta River Authority Hospital for administering the wrong medication, which resulted in significant damage to his mental health. In 2024, Philomina Asieduwaa became a victim of medical negligence when a cannula was left in her veins following a surgical procedure to deliver her baby. More recently, in April 2025, a patient died at Tamale Teaching Hospital due to the non-functionality of several essential medical equipments, an incident that led to the dismissal of the hospital's CEO.

This article explores the concept of medical negligence in Ghana, outlining the elements a patient must prove to succeed in a claim for medical negligence, who may be sued, statutory limitations on bringing these claims, and the practical challenges that often accompany medical negligence litigation. By providing a comprehensive overview, this write up aims to educate patients, legal practitioners, and the general public on navigating the complexities of medical negligence claims in Ghana.

WHAT IS MEDICAL NEGLIGENCE

Medical negligence occurs when a healthcare professional fails to do something that a reasonably competent professional would have done, or does something that a reasonably competent professional would not have done, resulting in harm to the patient. In other words, it is when a healthcare professional or healthcare facility, through an act or omission, causes injury to a patient.

Although medical negligence continues to feature prominently in Ghana's public discourse, it remains an area of law without a specific statutory framework. The principles governing medical negligence in Ghana are largely derived from the common law on tort, inherited from English jurisprudence and developed through judicial precedents in our courts.

ESSENTIAL ELEMENTS TO ESTABLISH A CLAIM FOR MEDICAL NEGLIGENCE.

Before a patient or claimant can succeed in a medical negligence claim, certain key elements must be established:

1. Duty of Care
2. Standard of Care
3. Breach of Duty and Resulting Injury/Harm

It must be shown that the healthcare professional owed a duty of care to the patient, that this duty was performed below the standard reasonably expected under the law, and that the breach of this duty caused injury or harm to the patient. Each of these elements is discussed in detail below.

Duty of Care

Before a claim for medical negligence can succeed, the patient or complainant must first establish that the healthcare professional owed them a duty of care. In general terms, if a person (X) knows that their actions or inactions could foreseeably cause harm to another person (Y), then the law recognizes that X owes a duty of care to Y. This concept is encapsulated in the "Neighbour Principle" from the landmark case of Donoghue v Stevenson (1932).

How Duty of Care Arises in the Medical Profession

In the medical context, a duty of care arises once a doctor-patient relationship exists. For example, when a patient walks into a healthcare facility, registers as a patient, receives a treatment or patient card, opens a medical folder, or books an appointment for any healthcare service while in the facility, a doctor-patient relationship is formed. Consequently, the healthcare professional and, by extension, the healthcare facility assumes a duty to act in a manner that does not cause harm or injury to the patient.

Standard of Care

The standard of care is the benchmark used by the court to determine whether a healthcare professional has properly exercised the duty of care expected of a reasonably competent professional in similar circumstances. If the actions of the healthcare professional align with what other reasonably competent professionals would have done, then the standard of care is considered satisfied. Conversely, if their actions significantly deviate from what other professionals would reasonably have done, they are deemed to have fallen below the required standard.

The Bolam Test, established in Bolam v Friern Hospital Management Committee (1957), is a key authority in determining the standard of care. It was redefined in Bolitho v City and Hackney HA (1998), which added that the professional's decision, although supported by the medical community, must also be logically justifiable.

Breach of Duty and Injury or Harm

This element examines whether the healthcare professional, in performing their duties, fell below the standard of care required by law and, as a result, caused harm or injury to the patient. There must be a clear link between the breach and the harm suffered, which is referred to as causation.

A common method to establish causation is the "but for" test. This test asks whether the injury would have occurred but for the acts or omissions of the healthcare professional. Lord Denning explained this test in Cork v Kirby MacLean Ltd [1952] 2 All ER 402, stating that; "If the damage would not have happened but for a particular fault, then the fault is the cause of the damage. If it would have happened just the same, fault or no fault, then the fault is not the cause of the damage".

When the Patient Cannot Prove the Breach of Duty

There are instances where a patient may be unable to specifically prove that a healthcare professional breached their duty of care, yet it is evident that the injury suffered could not have occurred without some form of negligence. In such cases, the legal principle of Res Ipsa Loquitur, meaning "the thing speaks for itself," may apply.

The effect of invoking Res Ipsa Loquitur is that it raises a presumption of negligence against the healthcare professional. However, this presumption is rebuttable. The healthcare professional may defend themselves by providing a reasonable explanation showing that the injury could have occurred without any breach of duty. In Asantekramo alias Kumah v Attorney-General [1975], the Ghanaian court relied on this doctrine and concluded that the amputation of the claimant's limb could not have occurred but for the presumed negligence of the hospital.

Who Can Be Sued Under a Claim for Medical Negligence

Generally, the healthcare professional whose actions or omissions breached their duty of care and caused harm to a patient is the appropriate party to be sued in a medical negligence claim. However, there is an important exception under the legal principle of vicarious liability. Vicarious liability arises where a healthcare professional commits the negligent act while acting in the course of their employment or under the authority of another entity typically a healthcare facility.

In practice, this means that a patient who suffers harm due to medical negligence may sue both the individual healthcare professional responsible for the negligence and the healthcare facility where the negligent act occurred.

Time Limit for Bringing an Action in Medical Negligence

In Ghana, a patient or claimant seeking to pursue a claim for medical negligence must do so within three years from the date the incident giving rise to the alleged negligence occurred.

This limitation period is provided under Section 3(1) of the Limitation Act, 1972 (N.R.C.D. 54), which states, "A person shall not bring an action claiming damages for negligence, nuisance or breach of duty, irrespective of how the duty exists, where the damages claimed by the plaintiff for negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to a person, after the expiration of three years from the date on which the cause of action accrued."

Challenges Associated with Medical Negligence Litigation in Ghana

Inadequate Compensation

Assessing the appropriate quantum of damages in medical negligence claims particularly non-pecuniary damages for injuries such as loss of life, impairment of health, or diminished quality of life poses a significant challenge. As noted in Teno v Arnold [1978] 2 S.C.R. 332, "there remains the assessment of the quantum of non-pecuniary damages. These damages are spoken of as compensation for pain and suffering, loss of amenities of life, loss of expectation of life, a grant of largely subjective consideration, the very naming of which indicates the impossibility of precise assessment. The real difficulty is that an award of non-pecuniary damages cannot be compensation. There is simply no equation between paralyzed limbs or injured brain and dollars. The award is not reparative; there can be no restoration of the lost function".

Expert Evidence

Medical negligence cases typically involve complex and highly technical medical issues that judges, given their legal rather than medical training, may struggle to fully comprehend. Medical experts provide insights into standard medical practices and help the court understand intricate medical matters. A further challenge arises from the reluctance of healthcare professionals to testify against their colleagues in malpractice cases.

Conclusion.

Medical negligence in Ghana continues to pose significant legal and ethical challenges, largely because there is no dedicated legislation governing this area of law. While some believe that initiating a medical negligence case may discourage health practitioners from treating patients or suggest that the courts are teaching doctors how to practice medicine, others argue that such prosecutions are necessary to ensure accountability and professionalism. In my opinion, holding healthcare practitioners legally responsible for negligence is essential, especially given the rising number of medical negligence cases in Ghana. It will promote higher standards of care and restore public confidence in the healthcare system.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.