In recent times, there has been an increase in reports of medical negligence in Nigeria, principally attributed to a lack of sufficient medical practitioners and infrastructure in the health sector. However, despite the alarming number of victims, there has been a low level of formal complaints or even lawsuits for compensation, due to ignorance, poverty and in some cases, reluctance to seek redress against the offending medical practitioner. It has been observed in other countries, that the quality of medical practice and care for patients is higher where there is a sense of accountability required from medical practitioners, as such, it will be useful to consider the legal position in Nigeria concerning actions for negligence against medical practitioners in the discharge of their duties.
LEGAL FRAMEWORK OF MEDICAL NEGLIGENCE
The Medical and Dental Practitioners Act (the Act) 2004 is the principal law regulating the medical profession in Nigeria. This Act established the Medical and Dental Council of Nigeria (MDCN), which provides for the registration of medical and dental practitioners. The MDCN in furtherance of its statutory function as provided by the Act codified the rules of professional conduct for medical and dental practitioners in its Code of Medical Ethics in Nigeria, 2008. This code lays down the standard of acceptable medical and dental practice in Nigeria.
The Act also established the Medical and Dental Practitioners Investigating Panel (the Panel) and the Medical and Dental Practitioners Disciplinary Tribunal (the Tribunal). The Panel is charged with carrying out preliminary investigations of any allegation of infamous conduct in professional respect made against a medical practitioner, and where such allegations have merit, the Panel forwards the case to the Tribunal for trial.
THE SCOPE OF MEDICAL NEGLIGENCE
Negligence is the breach of a legal duty to take care which is expected to be exercised, which results in damages. Medical negligence can be said to be the failure of the medical practitioner to exercise a reasonable duty of care in the course of his duty as a professional in that field. Thus, a registered practitioner who fails to exercise the skill or act with the degree of care expected of his experience and status in the process of attending to a patient may be liable for professional negligence. The following among others constitute Professional Negligence under the Code of Medical Ethics in Nigeria:
- Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so.
- A manifestation of incompetence in the assessment of a patient.
- Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them.
- 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 an organ.
- Failure to obtain the consent of the patient (informed or otherwise) before proceeding on any surgical procedure or course of treatment, when such consent was necessary.
- Making 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.
- Failure to refer or transfer a patient in good time when such a referral or transfer was necessary.
- Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.
- Failure to see a patient as often as his medical condition warrants or to make proper notes of the practitioner's observations and prescribed treatment during such visits or to communicate with the patient or his relation as may be necessary with regards to any developments, progress or prognosis in the patient's condition.
PROOF OF MEDICAL NEGLIGENCE
Negligence involves the existence of three basic elements, which must be proved before liability to pay damages is established. These elements of negligence were stated in the case of First Bank Nigeria Plc. V. Banjo to include;
- That the defendant owed the plaintiff a duty to exercise due care
- That the defendant failed to exercise the due care, and;
- That the defendant's failure was the cause of the injury of the plaintiff.
In the case of Ojo V. Gharoro & Ors, the Appellant was told by the Respondent that she had a growth in her Fallopian tube, to this effect, she needed surgical operations in removing the growth which she consented to. After the operation, she complained of abdominal pain, and an x-ray was carried out. It was discovered that there was a broken needle in her abdomen. It was held that the respondents exercised their best medical skills and so no medical negligence occurred. To fortify the decision, the Supreme Court borrowed the words of Lord Denning, in his book titled 'The Discipline of Law', pages 237, 242 and 243 wherein he opined:
"A medical man, for instance, should not be found guilty of negligence unless he has done something of which his colleagues would say: "He really did make a mistake there. He ought not to have done it'...but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risks. It would be wrong, and indeed, bad law, to say that simply a misadventure or mishap occurred, the hospital and the Doctors are thereby liable. It would be disastrous to the community, if it were so. It would mean that a Doctor examining a patient, or a surgeon operating at a table, instead of getting on with his work, would be forever looking over his shoulder to see if someone was coming up with a dagger for an action for negligence against a Doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not therefore, find him negligent simply because something happens to go wrong.... you should only find him guilty of negligence when he falls short of the standard of a reasonably skillful medical man, in short, when he is deserving of censure"
In the case of Chin Keow V. Government of Malaysia, a doctor failed to make any inquiry about the medical history of a patient, which led to her death within one hour of being injected with penicillin. The lords of the judicial committee of the Privy Council overturned the decision of the federal high court of Malaysia and noted that the doctor failed in his duty to make an appropriate inquiry before causing the penicillin injection to be given which was the cause of the death of the deceased. Had any inquiry been made, he would have been aware that the deceased had previously suffered an adverse reaction due to an injection, which led to an endorsement of her out-patient card of the warning 'Allergic to Penicillin'. The doctor was held liable for negligence.
LIABILITY OF MEDICAL NEGLIGENCE
In circumstances where the medical practitioner fails to perform his duty as required, the issue of liability would arise. The victims of medical negligence can make a complaint under criminal law, or institute an action for a civil wrong or follow the complaint procedure provided by the Act.
Criminal Liability in Medical Negligence
A victim can seek redress for medical negligence under criminal law in the gravest of circumstances. Where the extent of the negligence had been such that it resulted in permanent disability or death of the patient, then the practitioner will be guilty of gross negligence which can amount to a crime against the State. And where such breach of duty of care results in the death of a patient, a medical practitioner can be liable for manslaughter.
Furthermore, there are other offenses a medical practitioner can also be liable for during his course of duty depending on the nature of his/her actions. Section 343 (1) (e) of the criminal code provides that:
"Any person who in the manner so rash or negligent as to endanger human life or to be likely to cause harm to any other person giving medical or surgical treatment to any person whom he has undertaken to treat is guilty of misdemeanor and is liable to imprisonment for one year"
Civil Liability Medical Negligence
The degree of negligence, which gives rise to civil action must be that of ordinary tortious negligence. This can be proved where all elements of the three tests exist, which are: That the medical practitioner owed a duty of care to the patient; the duty of care was breached; and as a direct consequence of the breach, the patient suffered damages. Also, the onus of proof lies with the claimant who must call evidence to show negligence on the part of the medical practitioner.
Commencing a civil action for negligence may give rise to vicarious liability. In circumstances where hospital staff is negligent in the performance of their duties, the hospital may be held to be vicariously liable. This is based on the general principle that an employer is liable for the act of its employee in the course of his employment. This principle was recognized in the case of Ibokwe V UCH Board of Management, where Irwin J held that hospital authority is responsible for the acts or omission of the whole of its staff, whether they were physicians, doctors, nurses or other employees."
Complaint filed with the Medical and Dental Council of Nigeria
As earlier stated, the medical profession in Nigeria is regulated by the MDCN and there are disciplinary bodies including the Panel and the Tribunal. The Panel is charged with carrying out preliminary investigations of any allegation of infamous conduct in professional respect made against a medical practitioner, and where such allegations have merits, the Panel forwards the case to the Tribunal for trial. Further to this, the Tribunal has the power to do three things when the medical practitioner is found guilty of infamous conduct in any professional respect, in line with the provision of Section 16(2) of the Act, the Tribunal can:
- Strike the person's name off the registrar;
- Suspend a doctor's license for a period not exceeding six months;
- Admonish a doctor.
It is noteworthy that a medical practitioner has a right to appeal to the court of appeal against the decision of the Tribunal. Also, the professional responsibility of the medical practitioner does not exempt him or her from either criminal or civil liability. Hence, a doctor who breaches his duty of care may be liable to face disciplinary actions before the Tribunal, as well as face criminal actions where the case warrants it or a civil lawsuit.
It is important to note that not every action or omission by a medical practitioner will lead to medical negligence, each case would depend on its peculiarity.
Furthermore, an action for medical negligence requires stricter proof, however, any medical malpractices or errors, which may fall short of being proved as medical negligence may be instituted as an action for a breach of fiduciary relationship or contract, or be instituted as an action for the enforcement of fundamental human rights under the principle of patient's autonomy due to a failure to duly inform the clients on all the available treatment options.
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.