A Review Of Medical Negligence In The Nigerian Healthcare Sector: Utilising The Law As A Panacea1
Over the years, there have been innumerable reports of physical injury and deaths arising from the negligence of doctors, nurses, pharmacists, anesthesiologists, other medical practitioners, and hospitals generally. The various cases (reported and unreported) of medical negligence are an indictment of Nigeria's healthcare sector, which has been described as decayed and terribly poor.2
As a result of the appalling state of the healthcare sector, some Nigerians with means prefer to travel outside the country for medical treatment, but a larger percentage of Nigerians are stuck with using the deplorable healthcare facilities offered by the 'Giant of Africa'. This is an unfortunate situation, and it is worsened by the lack of awareness on the part of healthcare users. The average Nigerian is not aware of the duties owed to him or her by medical practitioners, much less the fact that when these duties are breached, there is room for legal redress.
Specifically, this article will address the following: what medical negligence is, laws and statutory bodies regulating medical practice in Nigeria, duties owed to patients by medical practitioners and legal redress for medical negligence.
What is Medical Negligence?
When a medical practitioner breaches his or her duty of care to patients or any other duties, the issue of medical negligence arises. The Nigerian Supreme Court in U.T.B (Nig) v. Ozoemena,3 defined negligence as:
Lack of proper care and attention; careless behaviour or conduct; a state of mind which is opposed to intention; the breach of duty of care imposed by common law and statute resulting in damage to the complainant.
Medical negligence can also be defined as improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or any other healthcare professional. It is significant to note that other healthcare providers such as nurses, pharmacists, laboratory attendants and any other healthcare provider can be liable for medical negligence, contrary to the general belief that only doctors can be liable for medical negligence.
Acts Considered as Medical Negligence
The Rules of Professional Conduct for Medical and Dental Practitioners also known as the Code of Medical Ethics stipulates several instances that would amount to Professional Negligence. Some of these are:
- Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so.
- Failure to advise, or proffering wrong advice to a patient on the risk involved in a particular operation or course of treatment, especially if such an operation or course of treatment is likely to result in serious side effects like deformity or loss of organ.
- Failure to obtain the consent of the patient (informed or otherwise) before proceeding on any surgical procedure or course of treatment, when such a consent was necessary.
- Making an incorrect diagnosis or a mistake in treatment e.g., amputation of the wrong limb, inadvertent termination of a pregnancy, prescribing the wrong drug in error for a correctly diagnosed ailment, etc., especially when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them.
- Failure to refer or transfer a patient in good time when such a referral or transfer was necessary.
- Manifestation of incompetence in the assessment of a patient.
- Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.4
Laws and Statutory Bodies Regulating Medical Practice in Nigeria
Several laws regulate medical practice in Nigeria, some of which are the Medical and Dental Practitioners Act,5 the Code of Medical Ethics in Nigeria,6 the Nursing and Midwifery (Registration, etc.) Act,7 the National Health Act,8 Compulsory Treatment and Care for Victims of Gunshot Act,9 the Patients' Bill of Rights by the Federal Competition and Consumer Protection Commission and the Criminal Code Act.10
Medical practitioners are governed by the Physicians' Oath (modern version of Hippocratic Oath),11 a set of ethical guidelines requiring physicians to serve humanity to the best of their ability and without discrimination of any sort.
The Medical and Dental Council of Nigeria (MDCN) is the umbrella body which regulates medical practitioners in Nigeria and prescribes their rules of professional conduct and ethics. Other statutory bodies include: Community Health Practitioners Registration Board of Nigeria (CHPRBN), Health Records Officers Registration Board of Nigeria (HRORBN), Medical Laboratory Science Council of Nigeria (MLSCN), Medical Rehabilitation Therapists (Reg) Board of Nigeria (MRTBN) and Optometrists and Dispensing Opticians Registration Board of Nigeria (ODORBN).
Duties owed to patients by medical practitioners
The relationship between a medical practitioner and his patient is one of trust and confidence (a fiduciary relationship), being a relationship where one has power and duty to treat and restore the other to medical and physical well-being. This relationship is deemed to commence immediately the medical practitioner consents to undertake a medical examination of the patient. Medical practitioners are obligated to observe the following duties:
- Duty to Render Emergency Medical Service: Medical practitioners are obligated to render emergency medical care for the protection of the life of patients. They cannot refuse this emergency life care service to anyone. Emergency medical services include urgent care and First Aid, standard hospital care, outpatient surgery centers and even use of ambulances.12
- Duty to Provide Treatment:13 This duty requires the medical practitioner to treat his patient for as long as the case of the patient requires. It amounts to abandonment of a patient for a medical practitioner to withdraw from treating the patient midway. However, the medical practitioner may withdraw his or her services for a "good cause14".
- Obtaining Consent:15Medical practitioners are under a duty to obtain prior consent from the patient before embarking on treatment. A patient who is armed with the vital information regarding the treatment is at liberty either to consent to being treated or to refuse treatment. Consent cannot be presumed by the medical practitioner but must be clear and unequivocal.
- Duty to Disclosed Essential Information:16 Medical practitioners are under a duty to disclose to their patients all facts which are necessary for them to give informed consent to the proposed treatment which the patient is to receive. The required information ought to cover and give an insight into the nature of the treatment, the likely risks and hazards associated with the kind of treatment in view and the likely outcome of each course of treatment.
- Patient's Privacy and Confidentiality:17 Medical practitioners are obligated to protect and respect patient privacy and sensitive vital information disclosed to them in the treatment of such a patient. Such confidential information must not be shared with a third party, except with the informed consent of the patient, which consent should preferably be in writing. Even when consent is granted, such disclosure of information must be kept to the necessary minimum.
- Duty to Caution Patients:18Medical practitioners have a duty to caution their patients regarding any treatment which may be harmful or detrimental to them. For instance, where surgery is undesirable, the medical practitioner should caution the patient against it. He is not to embark on such surgery or take undue advantage of the patient's uninformed state. The watchword should be "life first".
- Exercising Due Diligence: As medical professionals owe their patients a duty of care, they are obligated to exercise the utmost care and a higher level of circumspection in attending to patients. For instance, it would amount to medical negligence and breach of the duty to exercise care and skill, for a medical practitioner to forget to sterilize his surgical instruments or to leave a surgical instrument or a swab in the body of his patient. In certain cases, lack of due diligence may be such that would amount to infamous conduct in a professional respect.
- Duty to Inform Patient of Optional Treatment:19There may be instances where an aliment is susceptible to more than one treatment and, where this is the case, it becomes the duty of the medical practitioner to call the patient's attention to the alternative treatments and advise them on the risks and benefits of these treatment options.
It is important to note that when one of these identified duties is breached and the patient suffers resultant injury or damage, such breach is referred to as medical negligence. Such negligence often gives rise to a potential claim for compensation.20
Obtaining Legal Redress for Medical Negligence
Where there is a breach of duty by a medical practitioner resulting in injury or damage to a patient (i.e., negligence), such a patient or their family members (or other interested parties) are entitled to legal redress or relief for this negligence. However, there are conditions which must be established by the aggrieved party in order to succeed in an action for negligence against a medical practitioner. Such a party must prove that:
- The medical practitioner owed the patient a duty to use reasonable care in treating him or her;
- The medical practitioner failed to exercise such care, and he was in breach of that duty;
- The patient suffered damage(s) or injury as a result of the breach. Such damage or injury must be a direct and not a remote consequence of the practitioner's action. In the case of Otti v. Excel-C Medical Centre Ltd & Anor,21the court held that: "It is rudimentary law that in order to find a medical professional guilty of negligence, the situation has to be such that what he did is what professional colleagues would say that he really made a mistake and that he ought not to have made it. Put differently, the action would be such that falls short of the standard of a reasonably skillful medical professional".
A party aggrieved by medical negligence can file a criminal complaint under criminal law or institute an action for a civil wrong, or follow the complaint procedure provided by the Medical and Dental Practitioners Act for professional misconduct. The onus of proof lies with the aggrieved party who must provide evidence to show negligence on the part of the medical practitioner.
Complaint under Criminal Law
Section 317 of the Nigerian Criminal Code Act provides that a person who unlawfully kills another without intending to cause death or grievous harm to the person killed is guilty of an offence of manslaughter, according to the circumstances of the case. Section 343 of the Act provides that any person who gives medicine or medical or surgical treatment in a rash or negligent manner as to endanger life or likely to cause harm to a person shall be guilty of a misdemeanour. As such, under Nigerian criminal law system, liability will arise even where life has not been lost but endangered, in the course of treatment. Similarly, Section 303 of the Act prescribes that persons who undertake to administer surgical or medical treatment should possess reasonable skill and use reasonable care in acting except in cases of necessity.
In line with these provisions, a negligent medical practitioner can be criminally prosecuted for medical negligence. Any person seeking redress for medical negligence under criminal law in the gravest of circumstances can file a report at the Police Station. The Police will then investigate the suspected medical practitioner(s) and where their investigation reveals gross negligence, they may prosecute the matter. In this instance, the Police can file a criminal suit against the medical practitioner in court for gross negligence or for manslaughter, where death of the patient has occurred.
Institution of Civil Action
A victim of medical negligence can file a civil action against the negligent medical practitioner by issuing a writ of summons at the appropriate court, claiming special and general damages against the medical practitioner. In a situation where the victim of medical negligence is dead, a representative of the estate of the deceased can commence a suit for wrongful death against the medical practitioner or even institute an action to enforce the fundamental right to life of the deceased.
Medical negligence claims must be instituted within 3 years from the date of the negligent treatment or from the day the treatment was first discovered to be negligent. After this period, the action is statute barred. However, where the estate of a deceased person sues for enforcement of the deceased right to life, such action would not be statute barred as fundamental rights actions are not subject to the laws on limitation of action.22
Complaint Procedure under the Act
As stated before, the medical profession in Nigeria is regulated by the Medical and Dental Council of Nigeria (MDCN). The MDCN has two disciplinary bodies: the Medical and Dental Practitioners Investigating Panel ("the Panel") and the Medical and Dental Practitioners Disciplinary Tribunal ("MDPDT" or "the Tribunal"). The duty of investigating the substance of any allegation of infamous conduct in a professional respect is vested in the Medical and Dental Practitioners Investigating Panel. Once the Panel concludes its investigation and finds that there is substance in the allegation against a practitioner, the matter is remitted to the Medical and Dental Practitioners Disciplinary Tribunal for trial.
An aggrieved victim of medical negligence can file a petition against the medical practitioner and send it to the office of the MDCN. Following that, the Panel shall investigate the matter and if the medical practitioner is found liable of medical negligence based on the preliminary investigation, the Panel shall conclude that a prima facie case has been made out against the practitioner. Then the Panel shall forward its findings to the Tribunal and the Tribunal shall then commence a trial against the errant medical practitioner.
At the trial, the affected practitioner is given an opportunity to defend his actions and professional conduct. Where the Tribunal finds the practitioner guilty of infamous conduct in a professional respect as contained in the charge preferred against him, the Tribunal can impose any of the following statutory penalties depending upon the gravity of the offence and the attitude of the practitioner before and during the investigation and/or trial:
- Order the Registrar to strike the practitioner's name off the relevant register or registers.
- Suspend the practitioner from practice for a period specified in the directive, not exceeding six months.
- Admonish the practitioner.
This is in accordance with Sections 15 and 16 of the Medical and Dental Practitioners Act.
However, a medical practitioner has a right to appeal against the decision of the Tribunal, by filing an appeal at the Court of Appeal. Additionally, the Tribunal's finding of negligence against the medical practitioner does not exempt him or her from either criminal or civil liability.
Patients should be aware of their rights - the right to ask questions, the right to seek second opinions, the right to choose their preferred treatment options and the right to complain where treatment is unpalatable. They should also be aware of the concept of medical negligence.
It is important to note that not every action or omission by a medical practitioner will lead to medical negligence, as each case would depend on its peculiarity, as an action for medical negligence requires strict proof. However, any medical malpractice or error which may fall short of proof as medical negligence may constitute a breach of fiduciary duty or contract, and an action may be instituted in that regard.
Whilst the Nigerian healthcare sector will require a ton of systemic changes to revive its failing state, many users of healthcare in the country should be encouraged by the fact that there is room for legal recourse in the event of medical negligence.
1 Maryam Abdulsalam, Associate, Intellectual Property Department, SPA Ajibade & Co., Legal Practitioners and Notaries, Lagos, Nigeria.
2 Emmanuel Nwachukwu, "Health sector decay: Nigerians dying needlessly" Punch Newspaper, 13th September 2021, available at https://punchng.com/health-sector-decay-nigerians-dying-needlessly/ accessed on 28th April 2022.
3 (2007) 1 SC (Pt. 2) 211.
4 The Rules of Professional Conduct for Medical and Dental Practitioners, available at https://www.mdcnigeria.org/Downloads/CODE%20OF%20CONDUCTS.pdf accessed on 28th April 2022.
5 Cap. M8 LFN 2004, available at https://www.mdcnigeria.org/downloads/cap-m8.pdf accessed on 28th April 2022.
6 Supra, n4.
7 Cap. N143 LFN 2004, available at https://www.nmcn.gov.ng/establish.html accessed on 28th April 2022.
8 Act No. 8 of 2014, available at https://nigeriahealthwatch.com/wp-content/uploads/bsk-pdf-manager/2018/07/01_-Official-Gazette-of-the-National-Health-Act-FGN.pdf accessed on 29th April 2022.
9 2017, available at file:///C:/Users/Mariam%20Abdusalam/Downloads/Compulsory%20Treatment%20and%20Care%20for%20Victims%20of%20Gunshot%20Act%202017.pdf accessed on 29th April 2022.
10 Cap C. 38 LFN 2004 available at http://www.placng.org/lawsofnigeria/laws/C38.pdf accessed on 12th December 2022.
11 See, https://www.nairaland.com/6496670/new-hippocratic-oath accessed on 29th April 2022.
12 See Compulsory Treatment and Care for Victims of Gunshots Act 2017 available at https://placng.org/i/wp-content/uploads/2019/12/Compulsory-Treatment-and-Care-for-Victims-of-Gunshots-Act-2017.pdf accessed on 16th December 2022.
13 See Rule 45 of the Code of Medical Ethics in Nigeria.
14 The Code of Medical Ethics in Nigeria has defined "good cause" to include: (i) where a patient insists upon an unjust or immoral course in the process of his treatment, (ii) where a patient deliberately disregards an agreement, or obligation as to fees or expenses, (iii) on the ground of the doctor's honour and self-respect, and (iv) a doctor's services in pursuit of his rights under the Labour Laws of the Federal Republic of Nigeria.
15 See Rule 19 of the Code of Medical Ethics in Nigeria.
16 Section 23 National Health Act.
17 See Rule 44 of the Code of Medical Ethics in Nigeria.
19 See Rule 19 of the Code of Medical Ethics in Nigeria.
20 John S. Avoseh, "The Duties And Responsibilities of A Medical Practitioner and Liability for the Breach Under Nigerian Law", E-Justice India, 17th May 2020, available at https://www.ejusticeindia.com/the-duties-and-responsibilities-of-a-medical-practitioner-and-liability-for-the-breach-under-nigerian-law/ accessed on 30th April 2022.
21 (2019) LPELR-47699(CA).
22 See Order III of the Fundamental Rights (Enforcement Procedure) Rules, 2009.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.