Pursuing Medical Negligence Claims In Nigeria: The Road To Redress

INTRODUCTION

Over the years, numerous reports of physical injury and death have arisen from the negligence of medical practitioners and hospitals. These documented and unrecorded instances of clinical malpractice serve as a damning indictment of the Nigerian healthcare sector, which has been widely criticised for its systemic decay and substandard professional conditions.

Medical negligence is not a standalone concept but is firmly rooted in the foundational tortious principles of negligence as famously propounded by Lord Atkin in the locus classicus of Donoghue v. Stevenson¹. This pivotal authority established the “neighbour principle”, which imposes a general duty to exercise reasonable care to avoid acts or omissions that one can reasonably foresee would likely cause injury to one’s neighbour. This article explains what medical negligence means under Nigerian law, the laws that regulate it, how victims can prove their claims and the remedies available.

WHAT IS MEDICAL NEGLIGENCE?

When a medical practitioner breaches his or her duty of care to patients or any other duties, medical negligence arises. The Nigerian Supreme Court in the case of Adesina v. People of Lagos State² defined negligence as:

“…an omission or failure to do something which a reasonable and prudent man, under similar circumstances, would not do.”

Medical negligence can therefore be said to occur when a medical professional fails to exercise the level of care, skill and diligence expected of a reasonably competent practitioner, resulting in injury or harm to a patient.

STANDARD OF CARE AND BREACH OF DUTY OF CARE

Usually, the standard used to determine whether negligence occurred is that of the ‘reasonable man’, that is, that of an ordinary person placed in the same circumstances³. In terms of medical negligence, however, the focus is on the standard of professional duty expected of a comparable medical practitioner⁴. The argument has been raised that the standard expected of a house officer or a young medical officer/resident should not be the same standard expected of a consultant. In the case of Nettleship v. Wetson, the standard expected of a learner for instance, was held to be different from that required of a professional driver.⁵

As such, the degree of care expected of a consultant, being a specialist in a chosen field, would be higher than that of a non-specialist and this would not be overlooked in determining liability.⁶ An exception may however arise in cases where a junior doctor is undertaking provision of specialist services; the standard that will be required in such circumstances may be that of a specialist whilst also not overlooking the liability of the hospital to employ the services of qualified specialists to provide specialist care and needed supervision, when necessary.⁷

PROOF OF NEGLIGENCE

To prove a practitioner’s negligence, one must show that a required standard of care was violated, and that the violation was the cause of the injury. In the case of First Bank of Nigeria Plc. v Banjo⁸ the court inferred certain elements of negligence which must be proved as follows:

i. That the defendant owed the plaintiff a duty to exercise due care;

ii. That the defendant failed to exercise the due care; and

iii. That the defendant’s failure was the cause of the injury of the plaintiff.

In the case of Ojo v Gharoro⁹, negligence was described as a fluid principle which has to be applied to the most diverse conditions and problems of human life. The Supreme Court in this case iterated the holding of Lord Denning when he held:

“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…”

In other words, a medical practitioner should only be found guilty of negligence when he falls short of the standard of a reasonable skillful medical man.

MECHANISMS FOR REDRESS

CIVIL LIABILITY

Under civil law, tortious liability arises from the breach of a duty that is fixed by the law, is categorical in nature and owed to any person who is within the scope of duty, and when breached, is actionable by an action for compensatory, unliquidated damage.¹⁰ An aggrieved patient can proceed to the High Court to sue for negligence and to claim damages.¹¹

In the case of Delta State Hospitals Mgt Board & Ors v. Onome¹² the Claimant initiated this action at the lower court following the death of his wife due to systemic medical negligence. The Claimant asserted that despite being registered for antenatal care, his wife, now deceased, was repeatedly turned away or referred by staff at General Hospital, Otu-Jeremi and Central Hospital, Ughelli due to a lack of available personnel. After being orally referred to a private clinic where she delivered a stillborn, she tragically bled to death in transit to a third facility.

The trial court found the State hospital liable for the negligence of their medical staff and awarded the Claimant N10,000,000.00 in damages for the avoidable loss of his wife and child. The Court of Appeal, taking cognisance of the hospital’s lackadaisical conduct which exacerbated the deceased’s condition, affirmed the decision of the lower court when it held that for a claim in negligence to succeed, the Plaintiff must prove that the defendant owes or owed him a duty of care and was in breach of that duty.

It is also noteworthy that medical negligence claims, like all tort actions, must be instituted within 3 (three) 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 barred¹³. 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.¹⁴

CRIMINAL LIABILITY

Although criminal liability for negligence has been mostly limited to prosecutions for manslaughter in many jurisdictions of the world, the Nigeria Criminal Code Act (‘’Criminal Code’’) provides for lesser offences in medical negligence. However, the level of negligence which a doctor must have manifested to be criminally liable is considerably above that which civil liability may be incurred. Traditionally, it has been defined as “gross or extreme” negligence and sometimes tautologically referred to as criminal negligence.¹⁵

For instance, Section 317 of the Criminal Code 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 while Section 343 of the Criminal Code provides that any person who gives medicine or medical or surgical treatment in a rash or negligent manner such as to endanger life or likely cause harm to a person shall be guilty of a misdemeanour.

Consequently, 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 Criminal Code 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 may lodge a report with law enforcement agencies, who will investigate the suspected medical practitioner(s) and where their investigation establishes a case of gross negligence, the relevant authorities may commence criminal proceedings against the medical practitioner.

CHALLENGES 

The volume of medical negligence litigations in Nigeria remains relatively low compared to jurisdictions such as the United States of America and the United Kingdom as the primary obstacle faced by patients seeking to make such claims is the systemic difficulty in obtaining relevant medical records to support litigation.¹⁶

Once a patient suspects negligence, he is likely to seek clarifications in order to determine the next line of actions and also find competent legal experts who are willing to pursue the case. Doing so requires adequate evidence on medical negligence but which are often not circulated to the public. Patients are routinely denied access to basic information about their diagnoses and treatments. This is one of the strategies developed by healthcare institutions as a shield to frustrate attempts to file an action.

Furthermore, the difficulty of obtaining expert medical witness opinions and evidence-based records significantly hampers the ability of patients to seek redress for medical negligence. Because medicine is a highly specialised field, the legal burden of proving duty of care, a breach of that duty and direct causation require judicial reliance on expert testimony. Securing this expertise is often frustrated by a culture of silence where practitioners are discouraged from discussing case details, alongside a general unwillingness among medical professionals to testify against their colleagues.¹⁷

Ultimately, the lack of accessible pre-action records and voluntary oral evidence turns medical malpractice litigation into what has been described as a “lottery,” where the final outcome is unpredictable and difficult to establish.

CONCLUSION

While there has been some progress in the health care system in Nigeria over the years, there is still a long way to go before the health care system is set to achieve the required world standards. The culture of silent endurance regarding medical negligence is shifting, exemplified by high-profile advocacy from Chimamanda Ngozi Adichie on medical negligence. Her pursuit of accountability has mobilised key stakeholders, including the Lagos State Government, the Medical and Dental Council of Nigeria (MDCN) and senior legal experts, to address systemic failures.

Understanding your right is the first step toward justice. Whether through litigation, regulatory complaints, or constitutional action, victims of medical negligence have legal options. However, as awareness grows, so would the demand for a safer and more responsible and accountable medical practice across Nigeria.

Footnotes

1  Lords L. Donoghue V Stevenson. (1932) AC, 562.

2  (2019) LPELR-46403(SC) Per EJEMBI EKO, JSC (Pp 12 – 12 Paras B – F)

3  H. C. Alisigwe, ‘Medical Practice and the Law of Negligence; Implication for the Medical Practitioners in Nigeria [2016] Port Harcourt Journal of Business Law (2)(2), p. 304. 3IRLJ144.pdf accessed on the 21^st April, 2026

4  B. N. Okpalaobi & Precious Nduburuoke Egbule, The Rights of Nigerian Health Consumers in Cosmetic Surgery, 3 IRLJ , September 2021, at 144. 3IRLJ144.pdf accessed on the 21^st April, 2026

5  (1971) 3 All ER 581.

6  Section 303 of the Criminal Code Act in Nigeria 2004 which discusses the duty of persons doing dangerous acts states that, It is duty of every person who, except in a case of necessity undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act; and is held to have caused any consequence which result to the life or health of any person by reason of any omission to observe or perform that duty.

7  Wilsher V. Essex Area Health Authority. (1987) QB 730.

8  (2015) 5 NWLR (Pt. 1452) 253 C.A

9  (2006) LPELE-2383(SC)

10  B. A. Garner, Editor in chief, Black’s Law Dictionary (10^th ed Thomson Reuters, 2014)

11  O. A. Ojo, Nigeria: Medical Negligence In Nigeria: The Legal Remedies (2022) http://www.mondaq.com/nigeria/healthcare/1254460/medical-negligence-in-nigeria-the-legal-remedies Accessed 2nd March, 2026

12  (2022) LPELR-59333(CA)

13 See Section 9 (2) Limitation Laws of Lagos State

14  Order III of the Fundamental Rights (Enforcement Procedure) Rules, 2009.

15  Ehigiator & Ucheagwu-Okoye, Medical Negligence and Criminal Liability: An Evaluation of the Nigerian Position (2021) 2 MUNFOLLI/J https://journal.ezenwaohaetorc.org/index.php/MUNFOLLJ/article/download/1536/1580 Accessed 3rd March, 2026

16  Odunsi, B. (2019). Glancing back at Eden: A note on medical negligence in Nigeria’. Public lecture presented at Ogun State Bar and Bench Forum, 10th public lecture, High Court of Justice, Abeokuta, Nigeria—18th October

17  Seubert, D. E. (2007). Is “No Fault” the cure for the medical liability crisis? Virtual Mentor, 9(4), 315-321. Available at: http://dx.doi.org/10.1001/virtualmentor.2007.9.4.oped1-0704. Accessed on the 21^st April, 2026

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.