In every profession, there lies an implicit social contract between the practitioner and the public: a promise that those who possess specialised knowledge and power will use it responsibly, competently, and in the public interest. This compact is more than legal etiquette; it is the ethical scaffolding upon which modern societies are built. When that promise is broken, as it was in the harrowing case of Naila Qureshi, it lays bare not just the failings of an individual, but the fragility of institutional oversight and civic safeguards meant to protect the vulnerable from professional impunity.

The story of Naila Qureshi is, in the immediate sense, a tragedy of medical negligence. A woman in the prime of her life, seeking relief from pelvic endometriosis, was subjected to an unauthorised removal of her cervix during surgery, resulting in complications that left her incontinent, humiliated, and ostracised. The vesicovaginal fistula she sustained during a follow-up operation and the concealment of its true extent by her doctors set off a legal battle that lasted nearly two decades. The High Court’s recent judgment in her favour is a much-needed affirmation of the principles that ought to govern professional service in Kenya. Yet, it also exposes the deeper rot of carelessness and impunity that infects not just medicine, but many other spheres of Kenyan professional life.

The Duty of Care: The Doctrine That Binds Us All

At the heart of this case, and indeed the wider crisis, lies the doctrine of duty of care. Formally articulated in the seminal English case Donoghue vs Stevenson (1932) by Lord Atkin, the principle holds that one must take reasonable care to avoid acts or omissions that can foreseeably harm others. In his famous words, “One must consider the well-being of their ‘neighbour; those so directly affected by one’s actions that they must be kept in mind.” This idea, simple yet profound, has guided the law of torts for nearly a century. It underpins liability in negligence not only for physical harm but for professional failings in law, finance, engineering, and public administration.

Lord Denning, writing decades later, noted that the 20th century witnessed the remarkable evolution of negligence as an independent and vigorous wrong, extending its reach from simple physical injury to complex professional contexts. In particular, he emphasised that the expansion of professional duty was essential for modern societies in which specialists hold significant power over public welfare. The Kenyan experience today demands a similar reckoning.

Negligence Beyond the Operating Room

The Qureshi judgment illuminated how the neglect of professional duty in healthcare can shatter lives. But its implications extend far beyond hospital walls. Across professions in Kenya, from law firms to architectural consultancies, from financial services to public procurement offices, carelessness disguised as discretion, or expediency masquerading as expertise, is a quiet epidemic. It is not uncommon for lawyers to mishandle client property, for financial advisors to recommend reckless schemes, for engineers to overlook safety standards, or for public officials to casually breach procurement laws, all without consequence. The result is a corrosive culture where those entrusted with specialised skills are emboldened to neglect their duties because systemic oversight is either absent, complicit, or lethargic.

Professional duty of care, properly understood, is not merely about avoiding egregious mistakes. It is about anticipating harm, applying competence commensurate with one’s training, and remaining constantly accountable to those affected by one’s decisions. In medicine, it means securing informed consent, practising within one’s limits, and disclosing complications. In law, it means diligent case handling, accurate advice, and safeguarding client interests. In engineering, strict adherence to safety codes and structural integrity is essential. In public service, it means impartial administration of public resources. Where this duty is abandoned, public trust is eroded, lives are imperilled, and institutions lose their moral authority.

Professional Boards That Look Away

Kenya’s regulatory frameworks, although existing in statute, often fail to be enforced. Professional licensing boards frequently serve as protective guilds rather than public guardians. The Kenya Medical Practitioners and Dentists Council (KMPDC), the Law Society of Kenya (LSK), the Engineers Board of Kenya (EBK), and financial regulators have all faced criticism for their reluctance to address professional misconduct, unless public pressure renders inaction impossible to address decisively. This lethargy is part of what allowed Naila Qureshi’s ordeal to persist for years without institutional intervention.

Without functional disciplinary mechanisms and transparent professional accountability, the doctrine of duty of care is rendered toothless, reduced to little more than an academic relic. The public, meanwhile, pays the price for every omitted duty and concealed error.

Legal Doctrines Beyond Courtrooms

The courts, to their credit, have begun to respond. The Qureshi ruling’s invocation of res ipsa loquitur (the thing speaks for itself) marked a significant jurisprudential shift, allowing the mere occurrence of a medical anomaly like a vesicovaginal fistula to establish a presumption of negligence absent plausible rebuttal. This approach, if extended into other professional contexts, could transform the legal culture around professional accountability. If a building collapses, a financial scam occurs, or a legal client’s rights are carelessly waived, those responsible should similarly bear the burden of demonstrating their diligence.

However, legal remedies after the fact are no substitute for regulatory vigilance and professional integrity upfront. In line with the national values and principles as espoused in Article 10, the country urgently needs to revive the original spirit of the duty of care doctrine, not only in its legal texts but also in its professional culture. Codified patient and client rights, mandatory continuing professional development, independent disciplinary tribunals with real enforcement powers, and public blacklists for serious professional misconduct are reforms whose time has come.

Moreover, society itself must dismantle the culture of deference that shields professionals from scrutiny. The mistaken belief that doctors, lawyers, engineers, and senior public officers operate in realms too complex for ordinary citizens to question has allowed professional negligence to fester unchallenged. In truth, the duty of care is a democratic principle. It is predicated on the recognition that while expertise may command respect, it must always be subject to public oversight, as its consequences affect every life.

The tragedy of Naila is not an isolated incident; it is a symptom of a broader civic failure to treat professional carelessness as a serious public harm. Her case must therefore become a rallying point for professional reform, not merely in medicine but across every discipline where technical knowledge meets public trust. The duty of care is a covenant. When it is broken, the betrayal is collective.

Moment of Reflection?

Kenya stands at a decisive juncture. The Qureshi ruling has opened a door to the kind of civic introspection Lord Denning once described as the necessary check on professional power in modern democracies. What remains is for the country’s regulatory institutions, its courts, and its citizens to walk through that door to insist that carelessness is no longer an occupational hazard but a legal and moral failing with consequences.

For,  when care becomes carelessness – and it’s tolerated – what is lost is not merely professional dignity but the nation’s capacity to protect its people.