- Introduction: The Paradox of Professional Protection
The average person goes to the hospital with one basic assumption: that the medical staff know what they are doing and will always act in their best interest. Where this assumption is not met, the law is meant to give patients accessible means to pursue accountability and compensation. In simple terms, the law of torts is designed to put a person back in the position they would have been in if the wrong had not happened. 2 Yet medical negligence exposes how difficult that ideal becomes in practice. Unlike intentional wrongdoing, medical negligence arises in an environment shaped by uncertainty, competing risks, and split-second judgment calls. Courts therefore approach such claims cautiously, often prioritising the protection of medical professionals against frivolous litigation. However, this article argues that it often creates too high a bar for successful compensation. By examining systems around the world, we can propose a recalibration that prioritizes the patient without paralyzing the physician.
Medical negligence may attract criminal,3 administrative,4 or civil consequences. In civil law, such claims are generally brought under the tort of negligence.5 Under this head of torts, a claimant must generally prove three things: that the defendant owed them a duty of care, that the defendant failed to meet the required standard, and that this failure caused harm. 6 Put more simply, the patient must show that the doctor had a responsibility to act carefully, did not meet that standard, and that this failure led to injury. Courts often assess this by asking what a reasonably competent professional would have done in the same situation. 7 In medical negligence, the “duty of care” is rarely the issue. The fight usually centres on whether that duty was breached.
- The Bolam Standard and the Judicial Architecture of Medical Negligence
To determine this, courts apply the Bolam Test, born from the 1957 case of Bolam v Friern Hospital Management Committee. 8 In simple terms, a doctor is not negligent if he acts in a way that a responsible body of doctors in his position would have reasonably acted. 9 The logic behind the rule is straightforward. Medicine involves specialised knowledge that judges and ordinary laypersons do not possess. Courts therefore defer heavily to professional opinion when evaluating clinical decisions.
Ghanaian courts formally adopted the Bolam approach in Gyan v Ashanti Goldfields Corporation,10 where a child was paralyzed after receiving a chloroquine injection for a fever following an unsupervised misdiagnosis by the attending nurse. Expert evidence suggested that in the tropics, fever was most commonly malaria, and the nurse had followed standard medical practice for the time. Applying Bolam, the court concluded that the nurse acted in a manner consistent with what a responsible body of medical professionals would have done.
The test received further clarification in the recent case of Dr Sandys Arthur v Ghana Medical Association11 where the Court of Appeal, per Ofoe JA, stated thus12:
“I will agree with the appellant when he contended that in diagnoses and treatments there are differences of opinion between medical officers. A medical officer is not negligent merely because his conclusion differed from the other professional or because he displayed less skill or knowledge than the other. As stated in the case of Hunter v. Hanley 1955 SC 200 and Whitehouse v. Jordan (1980) 1 ALL ER 650 cited by the appellant, the true test in establishing negligence in diagnosis or treatment on the part of a doctor is whether he had been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of acting with ordinary care. Fair and reasonable standard of care and competence are required…. The facts of each case should be the sole determinant whether a medical man should be found negligent for wrong diagnosis or not”
These cases, and others like them, show that the law sets a high bar for patients who wish to sue . It is not enough to show that they have suffered some injury or that a better result could have been produced had the doctor acted differently, the patient must show that no reasonable body of medical professionals would have acted in the same way. This effectively means that the standard of care is defined largely by the medical profession itself.
While this protects doctors from being judged unfairly by non-experts, it also raises an important concern: if the profession sets its own standards, how easy is it for a patient to prove that those standards have been breached? This concern was pointed out by Ofori-Boateng J.A. (as he then was) through his dissenting opinion in the Gyan case mentioned above where the learned Justice stated thus:
… But if the common practice is fraught with negligence, as I think the practice of the defendants’ hospital is, even if truly it is the practice of all the hospitals in Ghana, then the practice is not the one “which a responsible body of skilled medical men would accept as proper.” … Indeed, if a hospital practice is negligent and breaches the duty hospitals owe to patients, the extensiveness of that negligence, because it is committed by many hospitals in general, cannot cure the practice of its negligent nature.” (Emphasis is mine)
- The Rationale and Reality of the High Threshold
Despite the criticisms of the existing system, it should be stated that the difficulty is not accidental; it exists with certain justifications. The system reflects the reality that medicine is complex, risky, and often involves making urgent decisions with imperfect information.
The first justification is the recognition that medicine by its very nature is incredibly precarious; even everyday steps can end in catastrophe. Medicine is inherently risky and a harmful result does not automatically mean that somebody was negligent. In The State v. Kwaku Nkyi,13 a student nurse visited a home to treat a sick child, but injected arsenic instead of the intended drug, simply because he failed to check an unlabelled vial. With hindsight, the error looks glaring. Courts, however, resist that temptation. They judge a professional’s decision at the moment it was made, not after disaster has unfolded. That is the logic of the Bolam test: you measure conduct against what was reasonable then, not what feels obvious now.
Secondly, errors are an unavoidable part of medicine. A world of zero mistakes is utopian. Courts are very careful to separate error from negligent. The fact that a person made a mistake does not per se mean they have been negligent. The public will typically judge conduct based on the outcome; the death of an infant during childbirth will obviously feel like negligence and families would understandably search for a person to blame. The law, however, focuses on the reasonableness of the decision, not the size of the tragedy. Emotionally, it is hard to distinguish mistakes, even genuine ones, from negligence but legally, the law must create some separation. This gap can feel like a failure of justice. But if every adverse outcome triggered liability, the profession would become impossible to practise.
The third reason is that courts are very concerned about the practice of what is known as defensive medicine, where doctors order excessive tests, make unnecessary referrals, or avoid high-risk but beneficial procedures, not for the patient’s sake, but to build a legal shield. These methods inflate costs, put undue pressure on limited resources and can greatly compromise care. Courts are especially careful about creating a system where medical practitioners are unwilling to undertake medical procedures for fear of legal liability.
As former Supreme Court Justice Date-Bah JSC memorably framed this tension at a 2018 workshop:
“Medicine and the Law is a battle area and we need to bring the rule of law into that area. In Ghana, it is said that health professionals never testify against themselves and therefore there is a real hurdle to litigation of medical malpractice cases. It is important that health professionals should put the public interest first. On the other hand, we do not want to go the other way such as in America where doctors may fear to touch patients for fear of malpractice. There has to be a middle way somewhere”14 (Emphasis is mine)
A quieter concern is that such critical enquiry might deter talented people from entering high-risk fields,15 especially where working conditions are already sub-optimal. 16
Notably, judges recognize their limitations. They are not clinicians and thus they will not casually dictate medical standards. Multiple accepted methods can exist, and a practitioner should not be condemned with hindsight for choosing one.17 Outcomes often turn on underlying health factors beyond a doctor’s control, and courts refuse to base liability on speculation.18
Finally, regard is often had to the resource constraints under which many hospitals operate, particularly in developing jurisdictions, where practitioners are required to deliver care despite limited facilities and equipment.19
- Barriers to Justice: Asymmetry, Evidence, and Cost
While these justifications form a rational bulwark against the erosion of medical practice, they simultaneously construct a formidable landscape for the aggrieved patient to navigate. The very ‘middle way’ sought by Date-Bah JSC is often affected by the sheer weight of the legal and structural disadvantages inherent in the patient-provider relationship.
Chief among these, and perhaps the most fundamental hurdle facing claimants, is the structural problem of information asymmetry. According to the Ghana Statistical Service in 2021, only about 5 to 6 per cent of the population has attained a bachelor’s degree as their highest qualification,20 with postgraduate qualifications accounting for less than 2 per cent.21 At the same time, national figures for the end of 2021 estimated one doctor for every 11,295 patients and one nurse for every 378 patients.22 This practically means that most people approach healthcare without advanced formal education, relying almost entirely on faith and trust.
While this is absolutely desirable, it creates a fiduciary relationship of sorts where one party is always vulnerable relative to the other. In other contexts of a fiduciary nature, courts routinely hold the stronger or less vulnerable party to a higher standard,23 even when the vulnerable party contributed to the loss. 24 However, in the context of medical negligence, this protective instinct is diluted by the continued reliance on peer-defined standards. A claimant who is unaware of the processes to be undertaken and the available alternatives will naturally fail to identify when said process is not being followed. Even when they do, they will struggle to identify what counts as relevant evidence, and most critically, what the profession accepts as competent practice. The claimant is thus expected to essentially play a game where the opponent has the rulebook.
A second major obstacle concerns evidence and how it is obtained. Successfully arguing that a doctor was negligent quires the patient to first discover what actually happened and because medical records are held exclusively by institutions, these institutions sometimes refuse to release them. In Elizabeth Vaah v Lister Hospital and Fertility Centre,25 a mother who suffered a stillbirth was denied her own records because she had spoken to the media. It took the intervention and reprimand of the High Court, holding that under Article 21(1)(f) of the 1992 Constitution, a patient possesses an unqualified right to access their medical records for any legitimate purpose, and that prior media engagement did not constitute a lawful basis for refusal. Similarly, in Jehu Appiah v Nyaho Healthcare Limited,26 the patient had to sue just to force the hospital to release diagnostic notes regarding a life altering surgery after having been compelled to undergo life-saving surgery at another facility, allegedly as a result of the defendant’s acts and omissions which led to damage to her fallopian tube. In both of these cases, the demand for accountability started not even with the injury, but with the quest for the truth.
The third hurdle is access to experts willing to testify. Under the Bolam Test, the court inevitably turns into a forum for peer review where the judge acts more as a facilitator than an independent arbiter of clinical quality.27 While the court can appoint its own experts, the system often relies on a single voice to represent the entire profession.28 The ideal situation would be that multiple experts would testify, giving the court a range of views regarding what constitutes accepted practice and where legitimate differences of opinion exist. This diversity of opinion is how the court can better identify where professional discretion ends and negligence begins.
The reliance on a singular voice introduces a profound tension regarding professional partiality. Camaraderie remains a significant influence over most people, a specialist may be unwittingly hesitant to describe conduct as irresponsible for fear of bringing the name of the profession into disrepute, particularly where the conduct is one that the said specialist can identify with or one where he can justify.29 In the Gyan case30 for example, a nurse’s mistaken diagnosis led to the permanent paralysis of a one year old child.
Rather than actually interrogating the prudence of such a practice without verification or supervision, the experts in the matter largely framed the conduct as a rational response to prevailing medical realities. It is quite striking that the conclusions reached from the witnesses effectively normalized a diagnostic approach rooted in probability rather than verification, and in doing so, shifted the focus from whether the process adopted was careful, to whether it was common. For a layperson without clinical vocabulary, reviewing these technical justifications is nearly impossible. This leaves them trapped in a system that often privileges professional convenience over patient safety.
The final and most significant hurdle is the financial burden involved in litigation. Financial constraints worsen the other hurdles. Medical negligence suits are inherently resource intensive. They demand hours of expert testimony, long court appearances, and specialized lawyers with expertise in both law and medicine (who often charge higher). Many claimants would consider the cost of suing as outweighing any benefit, leaving them discouraged. This reality fuels the common “Fa ma Nyame” (Leave it to God) philosophy. Many feel that litigation is a waste of time because it cannot undo an injury or bring back a deceased loved one.
Perhaps the most tragic hurdle is when a victim lacks the resources to seek help elsewhere and must depend on the very hospital that harmed them. This disturbing paradox appeared in Darko v Korle-Bu Teaching Hospital.31 A 14-year-old boy went in for surgery on a torn ligament in his right knee, but the surgical team operated on his left knee instead. While the court eventually cleared the hospital of negligence regarding the surgery itself due to a signed consent form,32 it found a different, more chilling breach of duty. The hospital’s breach rather arose when it refused to treat the boy after he sued. The refusal of care, apparently triggered by the lawsuit itself, exposed just how vulnerable medical negligence claimants can become. The implications are troubling. If a patient fears losing access to treatment by seeking accountability, many will simply remain silent. That fear becomes even more significant where the institution involved is Korle-Bu Teaching Hospital, widely regarded as the country’s premier referral hospital.
The financial burden is made worse by the sheer unpredictability of these cases. beyond the difficulties associated with the Bolam test, claimants must still overcome hurdles involving consent, causation, and the “but for” test. Hospitals do not have to deal with this though. Hospitals, meanwhile, often have ready access to medical experts and legal teams, while patients may struggle even to obtain their own medical records without a court order or a formal RTI request, both of which carry additional costs.33
- Comparative and Corrective Jurisprudence: Softening Bolam
While the Bolam Test has long favoured medical professionals, modern jurisprudence is shifting toward a more patient-centred approach, particularly where patient autonomy, obvious negligence, or unequal access to information is involved.
The biggest shift has occurred regarding what a doctor must tell a patient. In the past, if a body of doctors wouldn’t disclose a risk, the law wouldn’t require it. In the American case of Canterbury v Spence,34 a patient who underwent spinal surgery was not warned about the risk of paralysis, which later occurred. The court rejected the idea that disclosure should be judged solely by medical custom. Instead, it held that the real question is what information a reasonable patient would need before making a decision. The same principle has been applied in the Canadian case of Reibl v Hughes.35
The English courts moved more slowly. In Sidaway v Board of Governors of the Bethlem Royal Hospital36 the House of Lords initially applied the Bolam Test to issues of disclosure, albeit with a strong dissent from Lord Scarman, who favoured a patient-oriented approach. That dissent eventually became the law in the 2015 case of Montgomery v Lanarkshire Health Board,37 where the English Supreme Court refused to apply the Bolam Test in a matter where the claimant, a diabetic woman of small stature, was not informed of the risk of shoulder dystocia during vaginal delivery. The risk materialised, resulting in serious injury to the child. The Supreme Court held that the Bolam test does not apply to the issue of disclosure of risks. Instead, doctors are under a duty to take reasonable care to ensure that patients are aware of any material risks involved in a proposed treatment, and of reasonable alternatives. A risk is “material” if a reasonable person in the patient’s position would likely attach significance to it, or if the doctor is or should reasonably be aware that the particular patient would likely attach significance to it.
Similarly, while not related to consent per se, the Supreme Court of India, in the case of V. Kishan Rao v. Nikhil Super Speciality Hospital,38 addressed a claim where the claimant’s wife was misdiagnosed with typhoid instead of malaria, leading to her death. Lower tribunal rejected the claim for lack of expert evidence. The Supreme Court reinstated liability, holding that expert testimony is not required in every case, particularly where negligence is apparent on the facts.
These decisions show that courts are increasingly willing to recognise that healthcare disputes cannot always be resolved by blindly deferring to professional opinion. One would hope that Ghanaian courts would be open to follow this approach and apply it to other parts of healthcare delivery where reasonable.
Another important limitation on Bolam emerged through the so-called Bolitho principle in Bolitho v City and Hackney Health Authority.39 A child suffered respiratory failure after a doctor failed to attend despite being called, resulting in brain damage. The defence produced expert evidence that a responsible body of opinion would not have intubated. The House of Lords held that courts are not bound to accept expert opinion if it cannot withstand logical analysis.40 As Ofoe JA observed prior in the Dr. Sandys Arthur case , the fact that something is standard practice does not oblige a court to condone it when it is unreasonable. This logic appeared recently in the Ghanaian case of Chinbuah v. Attorney General (supra)41 where a high-risk pregnant woman suffering from pregnancy-induced hypertension was subjected to a traumatic vaginal delivery without proper monitoring or informed consent. The defence insisted that the doctors, as experts, knew what was “best” for the patient. In response to this argument, the learned Justice stated:
“[85] Having heard the evidence and reviewed the testimony of the witnesses, I am of the respectful opinion that Defendant’s Counsel failed to address the issue under discussion. The issue is not whether vaginal birth was the best option than the caesarean section requested for by the deceased and the 2nd Plaintiff. The issue as I understand it is why the Caesarean section requested could not be carried out. I did not hear any reason from the defence as to why could not be done. “
The Court by this dictum indicated that it is not enough to just rely on expertise as authority without providing further basis. In fact, further in the judgment, the learned Justice stated:
[150] …. Dr. Barnor for instance testified that “the deceased went into spontaneous labour leading to a normal delivery in less than 24 hours after the induction process commenced”. In the opinion of the Court that testimony was not only unacceptable but it was an affront to common sense. I wonder how anyone can refer to a delivery that led to the death of the mother as “normal” …” (Emphasis is mine)
Without expressly mentioning Bolitho, the court effectively applied its logic: expertise cannot shield conclusions that are plainly unreasonable.
A further corrective is the doctrine of res ipsa loquitur42 (“the thing speaks for itself”), long recognised in Ghanaian law. The doctrine allows negligence to be inferred where the circumstances strongly suggest that the injury could not ordinarily have happened without negligence. The burden then shifts to the defendant to show how it was not negligent.43 Res ipsa will only lie where the causative facts of the injury are not known. Where these facts are known to the court, res ipsa will not apply since the details of how the Defendant was negligent are available.44
Ghanaian courts, following Scott v London & St Katherine Docks Co,45 require three cumulative conditions: the thing causing the injury must have been under the defendant’s control, the accident must be one that ordinarily does not happen without negligence, and there must be no satisfactory explanation from the defendant.46
Importantly, Ghanaian courts have held that claimants need not specifically plead res ipsa before a court can apply it. Once the facts themselves strongly point toward negligence, the evidential burden may shift.47 A classic example is Asantekramo Alias Kumah v. Attorney-General48 where the claimant underwent emergency surgery for an ectopic pregnancy but later lost her arm following complications from a blood transfusion administered during the procedure. Although she could not prove the specific particulars of negligence, the court held that the facts raised a strong likelihood of negligence.
As Taylor J. (as he then was) so tersely put it:
“It seems to me from the totality of the evidence that I must reject the suggestion of Dr. Poku, a medical man, that the bacteria got into the body of the plaintiff in a mysterious way. As a court of law and a tribunal dealing with facts, I am afraid, I must have no truck with the mysterious. The medical evidence adduced by the defendant shows in my view very clearly that there was nothing mysterious about how the bacteria entered the arm of the plaintiff.” (Emphasis is mine)
Similarly, in Asafo v. Catholic Hospital of Apam,49 a case where a hospital lost a six-week-old baby. The court reasoned that such a young infant could not possibly have disappeared on its own, and in the absence of any satisfactory explanation from the hospital, negligence could properly be inferred. Res ipsa does not automatically establish liability. It merely shifts the burden of explanation. If the defendant provides a credible, logically coherent account consistent with the absence of negligence, the presumption is displaced and the claimant must still prove negligence on the balance of probabilities.
Some jurisdictions have gone even further. South African courts have taken a further step, drawing adverse inferences against healthcare facilities when medical records are missing or incomplete, directly addressing the information asymmetry patients face.50
Elsewhere, reform has come through legislation rather than judicial innovation. New Zealand adopted a radically different model through the Accident Compensation Act 2001.51 The Accident Compensation Act 2001 established a no-fault claims system administered by the Accident Compensation Corporation. Claimants need only show that their injury falls within the categories covered by the legislation. 52
- Conclusion: Institutional Reform and the Need for Recalibration
To bridge the gap between professional immunity and patient vulnerability, Ghana must move beyond the courtroom. The present system places too much weight on expensive, technical, and emotionally draining lawsuits, while ordinary patients often lack the resources to challenge hospitals and medical professionals effectively. The Medical and Dental Council (MDC), the primary regulatory body, remains underused by the average Ghanaian. Strengthening the MDC requires more than just increased funding; it necessitates a shift in its public identity from a professional fraternity to a transparent arbiter of public safety. Complaints procedures should be digitised and simplified, regional offices should be expanded beyond major urban centres, and disciplinary outcomes should be made publicly available. When people see that the regulator actively prunes poor practitioners, the culture of blind faith will naturally evolve into a culture of accountability.
Comparative experience also offers useful guidance. Ghana does not need to reinvent the wheel, but it must be careful not to simply copy other systems. The various approaches mentioned represent different attempts to resolve the same underlying problem: how to protect patients without crippling medical practice.
Ultimately, medical negligence law is a negotiation between the need to compensate victims and the need to protect a profession that operates under constant uncertainty. Yet the current framework still tilts heavily in favour of institutional protection. Bolam, even when moderated by principles such as Bolitho and res ipsa loquitur, continues to create significant barriers for injured patients. Recalibration is not about lowering standards for clinicians. It is about ensuring that “professional judgment” does not become a procedural shield against scrutiny. The law should no longer resolve every ambiguity in favour of institutional authority. Instead, it must ensure that when a patient is harmed, the path to justice is clear, affordable, and fair.
BY; KEKELI DZEKETEY ESQ.
Nartey Law Firm is a leading corporate and commercial law firm in Ghana providing legal services to individuals, domestic and international businesses. Ensuring the success of our clients’ objectives is at the core of what we do. Comprised of a dedicated team of lawyers with extensive experience in corporate, commercial and international law and litigation, we pride ourselves with the diligent execution of all client matters, whilst guaranteeing an uncompromising standard with respect to excellence in service delivery. Some of our focus areas are Real Estate, Intellectual Property, Energy, Trade and Commerce, Banking and Finance, Regulatory Advisory, Capital Markets and Mergers and Acquisitions.
CONTACT:
NARTEY LAW FIRM
TEL: +233 (0)553508582
Email:info@narteylaw.com