Victim of medical error in Benin : can one really get compensation?

18 Aug 2020 | 0 comments

Medical error is an integral part of the medical profession, it is unavoidable and many patients have already been victims of it in the largest health centers as well as in the smallest ones without any compensation or repair. It is not uncommon, as a result of a medical procedure or treatment, to experience unexpected complications, which do not correspond to those indicated by the attending physician prior to the procedure, and which have harmful consequences on health. Will we talk about medical error?

When do we talk about medical error?
Generally speaking, the physician is bound by an obligation of scientific competence and technical efficiency normally expected in view of the scientific knowledge acquired at the date of care. He does not have an obligation of result, but he does have an obligation of means which requires him to take the utmost care in the treatment of patients.

In other words, a bad treatment, an erroneous diagnosis, a failed operation, etc. do not constitute faults as long as the practitioner has exercised his art under normal conditions of competence and attention. It may happen that, given the data acquired from science, an evil was only revealed at the last minute, including the falsity of all previously established diagnoses.

Rather, medical error is a wrongful act resulting from a failure to fulfill the physician’s obligations.

The compress that the surgeon forgets in the body of the operated patient, the doctor who does not alert the patient about the contraindications of a treatment or the risks of an operation, the obvious fracture that the doctor does not see on the x-ray, the inappropriate or overdosed medication, a serious allergic crisis that could have been avoided if the doctor had questioned the patient, the mishandling of an examination tool or syringe, etc., all of these are cases that are frequently found in health centers.

There are generally two types of errors in medical settings:

Technical errors: these are errors committed by doctors who are not familiar with the practices and rules governing their profession. This is the case of an error in an obvious diagnosis, an error in the performance of the procedure, in the choice of treatment, in the medical follow-up, etc.
humanitarian error: this refers to the doctor’s relationship with his patient in terms of ethical requirements. This is the case of a disregard for the patient’s right to information on his diagnosis and on the treatment procedures envisaged.
What to do when you are a victim of medical malpractice?
Article 28 of the Beninese Code of Medical Ethics stipulates that the physician must always elaborate his diagnosis with the utmost care, not counting the time it costs him, and if necessary, with the help or assistance of the most enlightened advice and the most appropriate scientific methods, as far as possible.

Once a fault has been acknowledged, the civil liability of the physician is engaged. Even when the fault does not fall within the scope of his or her direct intervention. Victims of a medical error, whether it is a medical accident at fault or a therapeutic hazard, may seek compensation for their bodily injury by initiating either legal proceedings or an amicable settlement procedure.

This compensation is based on article 1382 of the Civil Code applicable in Benin. It should be noted that in case of insolvency or impossibility to make the doctor answer for his mistake, the patient has the possibility to take the hospital to court to obtain compensation.

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