Medical Negligence Claims And Limitation Periods In Nigeria: When Does Time Start To Run?

Ngozi was twenty-nine when she had her first child by caesarean section at a well-regarded private hospital in Enugu. The procedure went as expected, and she was discharged a few days later with a healthy baby girl and the usual pain and discomfort that comes with a C-section. But the pain did not go away. At first, she did not think much of it. She had just had surgery and was adjusting to life as a new mother. Her doctors also considered the pain part of the normal recovery process. But as the months passed, the pain remained. It eventually became a persistent ache in her lower abdomen, with occasional sharp episodes and a feeling of heaviness that was particularly noticeable around her menstrual period.

She returned to her obstetrician, who suggested that scar tissue from the surgery might be responsible and that the discomfort would improve with time. It did not. About a year later, another doctor considered endometriosis and prescribed hormonal treatment. The medication provided some relief, but the improvement did not last. She was eventually referred to a gastroenterologist on the possibility that the problem might be related to her bowel. Again, there was no clear answer. By the third year, Ngozi had become accustomed to the pain. After being told by different doctors that it was probably related to the surgery or another underlying condition, she stopped treating it as something that required further investigation. It became something she simply lived with.

Nearly six years after the caesarean section, her symptoms became significantly worse. She developed a fever and experienced more severe abdominal pain, prompting further investigation. An abdominal scan revealed something that had not been identified during all the years of treatment: a surgical sponge had been left inside her abdomen during the caesarean section. The retained sponge had caused a chronic infection and other complications that had developed over the years. Its removal required another, more complicated surgery. On reviewing her medical records and the imaging, the surgeon was able to identify the likely cause of the problem and link it to the original operation.

For Ngozi, the discovery came almost six years after the event that caused the injury.

That raises an important question, when is a patient expected to know that an injury was caused by medical negligence, particularly where the negligence could not reasonably have been discovered when it occurred?

This is one of the more difficult aspects of limitation law in medical negligence claims. In some cases, the injury is immediately apparent, and the patient knows, or ought reasonably to know, what happened. In others, the consequences of a medical error may not become apparent for months or even years. A patient may continue to seek treatment for symptoms without knowing that those symptoms were caused by an earlier medical procedure. The problem is that limitation periods do not always wait for the patient to discover the cause of the injury. Depending on the applicable law and the circumstances of the case, a claim may become statute-barred even though the patient did not know and may not reasonably have been able to know that the injury resulted from negligence.

That creates a difficult gap between when the injury occurs and when the patient discovers its true cause. For patients in Ngozi’s position, the issue is therefore not simply whether there was medical negligence or whether the patient suffered harm. The first question may be whether the law still allows the patient to bring a claim at all.

This article examines that limitation problem in Nigerian medical negligence claims, particularly where the injury or its cause is discovered long after the medical treatment that allegedly caused it. It considers how the law approaches such cases and, importantly, what a patient who discovers a possible medical error years later needs to consider before commencing proceedings. 

Why do limitation periods exist, and why are medical claims different?

Before looking at limitation in the context of medical negligence, it is important to understand what a limitation period actually means. The easiest way to think about it is as a deadline for bringing a claim to court. It does not determine whether a claim is valid or whether the claimant has a good case. It determines whether the claimant has brought the case within the time allowed by law.

Limitation periods apply to civil claims generally, not just medical negligence. The applicable period depends on the nature of the claim and, in some cases, the identity of the defendant. Different periods may apply to claims arising from contracts, torts, recovery of land, and other causes of action.

The primary purpose of a limitation law is to require a person who has a right of action to exercise that right within the prescribed period. Once the applicable period expires, an action may become statute-barred. Nigerian courts have repeatedly treated limitation as a matter capable of depriving a court of jurisdiction to entertain a statute-barred action, although the precise legal consequences depend on the applicable limitation statute and the nature of the claim. 

There are practical reasons for this rule. One is fairness to defendants. It would be difficult to expect a person or organisation to defend claims indefinitely, particularly where relevant records may no longer exist, memories have faded, and witnesses may no longer be available. Limitation periods also encourage claimants to pursue their rights while the relevant evidence is still available. Nigerian courts have repeatedly recognised the policy that litigation should have an end.

The difficulty becomes more obvious in cases where the claimant does not know that a wrong has occurred. In medical negligence cases, an injury may not immediately reveal its cause. A patient may continue to experience symptoms, seek treatment, and receive different diagnoses without realising that the underlying problem was caused by an earlier medical procedure. Ngozi’s case illustrates this well. She experienced persistent abdominal pain for years after her caesarean section, and at different points her doctors attributed it to scar tissue, to endometriosis, and to a possible bowel problem. None of these diagnoses pointed to the retained sponge, and she herself had no reason to suspect that the pain was connected to the operation rather than to an unrelated condition. By the time the actual cause is discovered, as happened when the surgical sponge was finally identified nearly six years after her surgery, the ordinary limitation period may already have expired.

This creates the central problem with limitation in medical negligence claims: the date on which the injury occurs may not be the date on which the patient discovers what caused it.

In Nigeria, limitation is largely governed by state legislation rather than one uniform federal statute. Each state has its own limitation law. Lagos State, for example, has the Lagos State Limitation Law, while Federal is governed by the Limitation Act. The applicable limitation period therefore depends on the relevant jurisdiction and the nature of the claim.

For medical negligence claims, which are generally brought as actions in tort, the ordinary limitation period is three years. In Lagos State, this is provided for under section 9 of the Lagos State Limitation Law. As a general rule, therefore, a claimant has three years from the accrual of the cause of action to commence the action. Once that period expires, the claim may become statute-barred, and the court will generally not proceed to determine the underlying negligence claim. Section 9, however, makes provision for cases where the material facts relating to the cause of action were outside the claimant’s actual or constructive knowledge for a significant period. This is particularly relevant where a patient could not reasonably have known that an injury or complication was connected to an earlier medical procedure.

The provision applies where the claimant only became aware of the material facts within the final twelve months of the ordinary three-year period or after that period had expired, subject to the other requirements set out in the section. It is therefore not correct to say that every patient who discovers medical negligence after three years automatically gets another twelve months to sue. The claimant must satisfy the specific statutory requirements, including the requirement relating to the timing of the discovery and the commencement of the action.

The distinction between actual and constructive knowledge is important. Actual knowledge refers to facts the claimant actually knew. Constructive knowledge is broader: even where the claimant did not actually know a fact, the law may treat the claimant as having knowledge if, in the circumstances, the claimant ought reasonably to have discovered it.

For a medical negligence claim, this can make a significant difference. A patient may know that they are experiencing pain, complications or other symptoms without knowing that those problems were caused by negligence during an earlier procedure. The relevant question is therefore not simply when the patient realised that something was wrong, but when the patient knew, or ought reasonably to have known, the material facts connecting the injury to the alleged negligence.

There are, however, other important qualifications to the general three-year rule.

First, claims against public officers may be subject to a much shorter limitation period. Under the Public Officers (Protection) Act, an action against a public officer must generally be commenced within three months of the act, neglect, or default complained of. This can be particularly important in medical negligence cases involving government hospitals and other public healthcare institutions.

The application of the Act is not always straightforward. For example, whether a particular statutory hospital management board or healthcare institution falls within the protection of the Act may depend on the circumstances and the legal status of the defendant. It is therefore important to identify the proper defendant and the applicable limitation period at the beginning of the case rather than assume that the three-year period automatically applies.

Second, a different position may arise where the claim concerns the enforcement of a deceased patient’s fundamental right to life. Where proceedings are brought under the Fundamental Rights (Enforcement Procedure) Rules 2009 to enforce a fundamental right, rather than as an ordinary tort claim for damages, the ordinary limitation rules applicable to tort claims may not apply in the same way.

This does not mean that every fatal medical negligence case can simply be converted into a fundamental rights claim. The circumstances of the case, the reliefs sought and the legal basis of the claim all matter. It does, however, mean that this possibility should be considered where the facts support it rather than assuming that an ordinary tort claim is the only available route.

With these qualifications in mind, the more difficult issue is the meaning of “accrual” in an ordinary medical negligence claim. If the law gives a claimant three years, the crucial question is, three years from when? That question becomes particularly important where, as in Ngozi’s case, the patient does not discover the medical error until several years after the treatment that caused the injury.

The “complete cause of action” test

Nigerian courts generally determine when a cause of action arose by applying the “complete cause of action” test. A cause of action becomes complete when all the facts necessary to establish the claim have occurred. In a negligence claim, this requires both the wrongful act and resulting damage.

The Supreme Court considered this approach in Elabanjo v. Dawodu. The Court considered the claimant’s pleadings to determine when the wrong occurred and when the cause of action arose and then compared that date with the date the action was filed. This matters because once the applicable limitation period has expired, a claim may be statute-barred even where the underlying complaint might otherwise have merit.

There is an important qualification when dealing with negligence. Damage is an essential part of the tort. A negligent act, without damage, is not enough to ground an actionable claim. This distinction can matter in medical negligence cases. A doctor may make an error on one date, but the patient may not suffer the resulting injury until a later date. In such a case, there may be an argument that the cause of action arose when the damage occurred.

A patient can suffer damage without knowing that the damage has occurred. The date on which damage occurs may therefore be different from the date on which the patient discovers it.

What does “discoverability” mean?

The idea behind discoverability is fairly simple. Instead of starting the limitation period from the date the injury occurred, time starts when the claimant knew, or ought reasonably to have known, that they had suffered an injury, what caused it, and who may have been responsible. The purpose is to avoid a situation where someone loses their right to sue before they could reasonably have known that they had been wronged.

Nigeria has not adopted a general discoverability rule for medical negligence claims. That said, the concept is not completely foreign to Nigerian law. The fraud, concealment, and mistake provisions already recognise the importance of when a claimant discovers, or ought reasonably to have discovered, the relevant facts. Nigerian cases do not usually consider limitation and discoverability together. Instead, the position has to be understood by looking at the different principles that emerge from the cases.

Ojo v. Gharorois useful when considering the burden of proof, admissibility of hearsay medical documents, and the applicability of res ipsa loquitur in medical negligence, although limitation was not the issue before the Supreme Court. In this case, a patient underwent abdominal surgery and later began experiencing pain. An X-ray showed that a broken surgical needle had been left inside her body, and she required another operation.

The Supreme Court’s decision ultimately concerned whether the defendants had rebutted the claimant’s reliance on res ipsa loquitur. The court found that the negligence claim failed on the merits. The question of limitation did not arise.

The facts nevertheless illustrate the problem with latent injuries. The patient did not immediately know that the needle had been left inside her. The problem became apparent only after she experienced pain and underwent further investigation. If a similar claim had been brought years after the original surgery, but shortly after the patient discovered the retained needle, the question of when time began to run would have been important. The Court in Ojo v. Gharoro, however, did not have to decide that question.

The principle in Elabanjo v. Dawodu applies generally and can therefore be relevant in medical negligence cases. The court will look at the claimant’s pleadings and determine when the wrongful act and resulting damage occurred. That date is then compared with the date on which the action was filed. This can cause difficulties where the negligent treatment and resulting injury occurred years before the patient realised that the injury was connected to negligence. If the claimant’s pleadings show that the cause of action arose outside the applicable limitation period, the claim may be struck out, even if the claimant only discovered the negligence much later.

The more difficult cases are those where damage has occurred but cannot reasonably be detected. For instance, an internal complication may exist without causing symptoms for some time. A misdiagnosis may also have consequences that develop gradually while the patient remains unaware of the underlying problem.

The current approach focuses on whether the damage has occurred. It does not necessarily ask whether the patient could reasonably have known that the damage had occurred or that it was caused by negligence. A patient could therefore have a cause of action that is already running out of time without having any realistic way of knowing that they have a claim.

Where does the current position fall short?

1. The ambiguity between damage and discoverability

The distinction between damage and discoverability is not always clear. Damage may occur before it becomes reasonably discoverable. If the two dates are treated as the same, it can be difficult to predict how a limitation objection will be decided. This also makes it harder for lawyers to give patients clear advice on when the limitation period began.

2. The narrow scope of exceptions

The fraud and concealment exception does not cover most latent medical injuries. Most cases of medical negligence do not involve a doctor or hospital deliberately hiding what happened. Sometimes, there is simply an error that a patient without medical training would have no reason to identify. If postponement of the limitation period is available only where there is fraud or deliberate concealment, many patients with genuine latent injuries will have no benefit from a discoverability approach.

3. The question of systemic fairness

Limitation laws are intended to protect defendants from stale claims and encourage claimants to act promptly. But that purpose becomes difficult to justify where the claimant had no reasonable way of knowing that a claim existed. A patient who acts quickly after discovering that something may have gone wrong is in a very different position from someone who knew about the problem and simply chose not to act. The law’s preference for a diligent claimant over a negligent one makes sense in the latter situation. It is less convincing where the claimant could not reasonably have known that there was a right to enforce.

Where should Nigerian law go from here?

There are two possible approaches. They are not necessarily alternatives.

A judicial approach

One possibility would be to give greater attention to whether the damage had become reasonably discoverable, rather than treating an injury as relevant for limitation purposes simply because it had occurred physically, even though there was no reasonable way for the patient to know about it. This would not necessarily mean abandoning the complete cause of action test. It would instead require the courts to consider more carefully what amounts to “damage” for the purpose of determining when a cause of action accrues in cases involving injuries that are not immediately detectable.

A legislative approach

The more certain route would be legislative reform.

State Houses of Assembly could amend their Limitation Laws to introduce a specific “date of knowledge” provision for personal injury and clinical negligence claims, similar to sections 11 and 14 of the English Limitation Act 1980.

The legislation could also give the courts some discretion to extend the limitation period where it would be fair to do so. In deciding whether an extension is appropriate, the court could consider the length of the delay, the reason for it, the effect of the delay on the evidence, the defendant’s conduct, and how quickly the claimant acted after discovering, or being in a position reasonably to discover, the problem.

This would build on an approach that Nigerian law already recognises, albeit in a limited form, in cases involving fraud, concealment, and mistake. Any reform would still need to balance the interests of both sides. A discoverability rule should not expose doctors and hospitals to claims indefinitely. One way of dealing with that concern would be to introduce a longstop period, an absolute final deadline after which a claim cannot be brought, regardless of when the injury was discovered. This would give patients time to pursue genuinely latent injuries while protecting defendants from indefinite exposure to litigation.

Conclusion

Nigerian limitation law generally proceeds from the complete cause of action test. In negligence claims, damage is an essential element of the cause of action, and the date on which the damage occurred may therefore be important in determining when time begins to run.

The decision in Elabanjo v. Dawodu provides important guidance on the accrual of a cause of action. It does not, however, fully resolve the more difficult situation in which a patient has suffered an injury but could not reasonably have known that the injury had occurred, or that it was connected to an earlier medical procedure. Outside the limited provisions dealing with fraud, concealment and mistake, Nigerian law does not presently provide a general discoverability rule specifically addressing latent medical injuries.

This creates a significant practical difficulty. A patient may act promptly after discovering the likely cause of an injury, yet find that the claim is already statute-barred because the limitation period began to run before the patient could reasonably have appreciated the connection between the injury and the medical treatment. For that reason, the question of limitation should be considered at the earliest stage of any potential medical negligence claim, particularly where the alleged injury or its cause was discovered long after the treatment in question.

There is therefore a strong case for greater clarity in this area, whether through judicial development of existing principles or legislative reform. A properly structured date-of-knowledge rule could allow genuinely latent injuries to be pursued while preserving the legitimate purpose of limitation statutes. Such a framework could also incorporate a longstop period and other safeguards to prevent indefinite exposure to claims.

The objective should not be to remove limitation periods from medical negligence claims, but to ensure that the law strikes a workable balance between the need for finality and the position of a claimant who could not reasonably have known that a legally actionable injury had occurred. In cases involving a potentially latent medical injury, the timing of discovery, the applicable limitation regime and any available statutory exception may therefore be as important to the claimant’s prospects as the underlying question of negligence itself.

References:

1. Limitation Law, Cap L67, Laws of Lagos State 2003. 
2. Limitation Act, Cap 522, Laws of the Federation of Nigeria, 1990
3. Limitation Law, Cap L67, Laws of Lagos State 2003, s 9. 
4.  Public Officers Protection Act, Cap P41, Laws of the Federation of Nigeria 2004, s 2(a).
5.  Fundamental Rights (Enforcement Procedure) Rules 2009 (Nigeria).
6. (2006) 15 NWLR (Pt. 1001) 76
7.  (2006) 10 NWLR (Pt. 987) 173
8.  Limitation Act 1980 (UK), ss 11, 14.