Medical negligence in Zambia:a critical analysis of the case of Kopa v University Teaching Hospital Board of Management, SCZ No. 8 of 2007
Date
2015
Authors
Kangwa, Benny
Journal Title
Journal ISSN
Volume Title
Publisher
The University of Zambia
Abstract
This paper critically analyses the decision of the Supreme Court of Zambia in the case of Kopa v University teaching Hospital, SCZ Number 8 of 2007. The paper sets out to discuss the tort of negligence (in general), elucidating the elements that constitute this tort. It then discusses professional negligence, showing how it is a branch of the tort of general negligence. The paper further goes on to discuss and show that medical negligence is a form of professional negligence, among other forms. It thus demonstrates the nexus between general negligence, professional negligence and medical negligence. It is medical negligence that was the central issue in the Kopa Case. The paper then proceeds to critically analyse the decision that was reached in the case itself by the Supreme Court of Zambia. The paper is written with the major objective of providing a clear understanding of the law on medical negligence in Zambia because there has been uncertainty as to what the law in this sphere is, especially with the seemingly shifting trends in the application of the Bolam Test in other Common Law jurisdictions. The lack of defined literature on the subject in Zambia further motivated the research undertaken. The research itself is conducted chiefly through desktop research—that is, reading of various materials on the subject of medical negligence. In addition, unstructured interviews with medical practitioners are conducted. After critically analysing the decision of the Supreme Court, the paper makes a finding that the legal framework and jurisprudence of medical negligence in Zambia is essentially the Bolam Test and that the courts in Zambia have consistently applied this test in all the cases of medical negligence presented before them. The paper further argues that decision of the Supreme Court is sound at law, and that it enhances the legal framework and jurisprudence in Zambia, and that the same is sufficient and effective in protecting victims of medical negligence, especially with the existence of the Health Professions Act, Number 24 of 2009. The paper makes recommendations that while the courts in Zambia have consistently applied the Bolam Test in medical negligence claims, upcoming decisions should endeavour to explain with certainty that the law on medical negligence in Zambia remains the Bolam Test, despite the seeming shift and complete disregard of the test in other Common Law jurisdictions. This robust approach will ensure certainty of the law in the country, which in itself will operate to protect both medical practitioners and persons who may have fallen victim to medical negligence
Description
Keywords
Medical laws and legislation-Zambia , Medical personnel-malpractice , Actions and defenses-Zambia