When doctors were jailed  for causing death to a patient 

Doctors are increasingly being held criminally liable for the deaths that occur to their patients, especially when the deaths are deemed to occur as a result of medical negligence. 

The laws under which doctors are charged in such cases vary from one area of jurisdiction to another.  
Involuntary manslaughter 
Health workers have successfully been prosecuted for what the law books term as involuntary manslaughter or criminally negligent homicide.  
This offence is defined as the unintentional death of a person that occurs from reckless or criminal negligence or even from an unlawful act without criminal intent. 

The actions or omissions of the offender are inherently dangerous to others or done with reckless disregard for human life. The accused person should have known that their conduct was a threat to the lives of others.
 Activities that are entirely legal can also result into a charge of involuntary manslaughter when carried out irresponsibly or recklessly.
Gross negligence 
When a doctor is charged with the offence of involuntary manslaughter the ingredients of the offence that prosecution must prove beyond reasonable doubt before a doctor is convicted are the following;
• The doctor owed the patient a duty of care.
• The doctor breached that duty.
• The breach of duty caused or significantly contributed to the death of the patient.
• The action or omission that led to the death of the patient was grossly negligent.
Gross negligence means that the breach of duty was so serious as to constitute a crime.  In determining gross negligence, court will consider the extent to which the act complained of departed from the proper standard of care and whether the action or omission was so bad in the circumstances to amount to criminal behaviour.
An anaesthetist was convicted of this offence and sentenced to serve three years in prison when a patient died in the course of an operation when the anaesthetist failed to notice that for six minutes the oxygen supply to the patient had been disconnected from its source.  The anaesthetist’s fault was that he did not react in time to the subsequent cessation of movements of breathing in the patient who was paralyzed and to the cessation of the indicators of the oxygen supply to the patient.  The anaesthetist did not monitor the patient as he should have. Court considered the behaviour of the anaesthetist criminally negligent.
Surgeon jailed 
A senior surgeon at a private hospital was jailed for 30 months when a patient he operated on died. The surgeon’s fault was that he did not operate on the patient immediately it was confirmed that the patient had a perforation of the gut, which was considered a medical emergency. 

The surgeon, instead, went on to operate on another patient he had given a prior appointment. The patient was taken to theatre three days after he had perforated his gut. At this point the patient’s condition had deteriorated and he died the day after the operation. To court, the doctor’s care of the patient fell far below that which could be reasonably expected of a consultant surgeon and that the doctor’s conduct was grossly negligent. 

Court concluded that even if the doctor had acted more speedily, there was still a chance that the patient would have died but that chance would have been very minimal if the doctor had acted as a reasonable surgeon would have acted the night he saw the patient. To court, the risks of death increased with the delay of the operation.

Rash and negligent act 
The offence of involuntary manslaughter is not in the law books in Uganda and the offence does not therefore exist. Instead, there is an offence of rash or negligent act leading to death. 

The law states that any person, who by a rash or negligent act causes the death of another person, commits a crime. The law further states that any person who, in a manner so rash or negligent, as to endanger human life or to be likely to cause harm to another person commits an offence.

In 2012, Dr Edward Gasterfson Tamale Sali and Mr Christopher Kirunda were jointly charged before the Chief Magistrate’s Court of Buganda Road with one count of causing death by a rush or negligent act. The State alleged that the two and others on October 14, 2010 at Women’s Hospital International in Bukoto, Nakawa Division in Kampala, by a rush or negligent act, caused the death of Ms Mercy Ayiru. The particulars of the offence were that an endo-tracheal tube was wrongly inserted into the oesophagus instead of the trachea of the deceased at the beginning of an operation to remove fibroids from her uterus. The Prosecution contended that this action caused her death. 

To court, prosecution was duty bound to prove all the essential ingredients of the offence beyond reasonable doubt in order to secure a satisfactory conviction against the accused persons. 
It was the duty of court to establish whether the evidence adduced proved the following ingredients of the offence beyond reasonable doubt;
•That the two accused, acting together, did a rash and negligent act
•That the act above caused the death of Ms Ayiru Mercy .
   To be continued


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