THE BOLAM TEST

A medical practitioner is not guilty of negligence if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion. This standard, affirmed in Kenyan courts including Trustees Registered Maua Methodist Hospital v Penina Thirindi Koome, remains the foundational benchmark.

ALSO RELEVANT

In Oyugi v Avenue Healthcare Limited [2023] KEHC 17464 (KLR), the High Court confirmed that the constitutional right to emergency medical treatment cannot be derogated from by any healthcare facility, public or private.

01 — Duty of Care

A legal obligation existed

Established by the existence of a doctor-patient relationship. Once a healthcare provider undertakes to treat a patient, a duty of care arises automatically.

02 — Breach of Duty

The standard was not met

The provider failed to meet the standard of a reasonably competent professional, assessed using the Bolam/Bolitho standard.

03 — Causation

The breach caused the harm

The breach must directly cause or materially contribute to the patient’s injury. Expert medical evidence is ordinarily required to establish this causal link.

04 — Damages

Actual harm was suffered

The patient suffered quantifiable physical, emotional, or financial harm as a direct result of the negligence.

Parkar & another v NQ & 2 others [2023] KECA 908 (KLR)

Aga Khan University Hospital — KSh 157 Million Award

The patient consented to removal of her uterus and ovaries. The consultant gynaecologist, Dr. Raffique Parker, removed her entire cervix without consent. The court found the hospital had allowed Dr. Parker to practise knowing he had been barred from practice in Uganda. The hospital was held to owe a non-delegable duty of care. The award comprised seven heads of damage including general damages, loss of consortium, loss of amenities, pain and suffering, loss of earning capacity, and loss of society.

Award: KSh 157,207,524.20

Kenyatta National Hospital v Karan & another [2024] KEHC 15686 (KLR) KNH — Surgical Gauze Left Inside Patient Following surgery at KNH, the patient developed severe abdominal pain. Scans revealed a large cotton gauze had been left inside her abdomen during surgery, causing a serious infection requiring emergency surgery to remove over two litres of pus. The High Court upheld negligence, as counting sponges before closing the abdomen is standard professional practice, a step that was not performed. KNH was held vicariously liable. Award: KSh 900,414

Menganga v Pandya Memorial Hospital & Abdalla (High Court, Mombasa, 2024)

Pandya Hospital — Misdiagnosis Causing Irreversible Hearing Loss

An 81-year-old former nurse was misdiagnosed with tuberculosis despite multiple negative test results and placed on streptomycin, causing severe vertigo and partial deafness — an irreversible condition. Justice Freda Mugambi held: “Any negligence in the doctor’s duty will make the hospital vicariously liable. We find the respondents wholly liable in negligence.”

Award: KSh 4,016,180

High Court at Nairobi, August 2025

Pumwani Maternity Hospital — Gross Negligence During Childbirth

The High Court ordered Pumwani Maternity Hospital to pay compensation to a woman whose baby died and whose uterus was removed following what the court described as “gross medical negligence during childbirth.” The case underscores the particular vulnerability of maternity patients and the court’s willingness to characterise systemic failures as gross negligence.

Award: KSh 7,500,000

1

Seek Immediate Legal Advice

Consult a qualified advocate specialising in medical malpractice litigation. Time limits apply — claims should be filed within three years of the date of the negligent act or knowledge thereof under the Limitation of Actions Act (Cap. 22).

2

Gather and Preserve All Evidence

Collect all medical records, treatment notes, test results, prescriptions, discharge summaries, consent forms, photographs of injuries, and all correspondence with the healthcare provider. Your advocate will engage an independent medical expert to review the records and provide an opinion on breach and causation.

3

File a Complaint with the KMPDC

Lodge a formal complaint with the Kenya Medical Practitioners and Dentists Council. A favourable finding of professional misconduct by the KMPDC’s Disciplinary and Ethics Committee significantly strengthens any subsequent civil claim, though it does not directly award compensation.

4

File a Civil Suit for Damages

Your advocate will file a plaint in the appropriate court — the High Court for substantial claims — setting out the particulars of negligence, the injuries suffered, and the categories of damages claimed. The court determines liability and quantum based on evidence adduced and expert testimony.

5

Consider a Constitutional Petition

Where the negligence amounts to a violation of the constitutional right to health under Article 43 or involves denial of emergency treatment under Article 43(2), a Constitutional Petition under Articles 22 and 23 may be pursued alongside or independently of the civil claim.

Special Damages

Quantifiable financial losses — medical expenses, corrective surgery costs, travel costs for treatment, and verified loss of earnings — all requiring documentary proof.

General Damages

Pain & suffering, loss of amenities, loss of consortium, loss of earning capacity, and emotional or psychological trauma — assessed by the court on the facts.

Aggravated Damages

Available where the defendant’s conduct was particularly high-handed, oppressive, or involved deliberate concealment of material information from the patient.