THE LEGAL REMEDIES TO MEDICAL NEGLIGENCE
By Ayogu Amoge
Abstract
Recently, there have been serious increase of Negligence on the part of medical professionals in Nigeria. This Negligence can be attributed to either low number of medical professionals or lack of infrastructure, poverty and medical Equipment. This review focuses generally on the remedies of medical Negligence under the Nigerian Law. Medical professionals have the responsibility of taking care of human life’s from diagnosis to treatment and counselling patients and their relatives. This duty is expected to be carried out diligently.
INTRODUCTION
The word Negligence can be said to mean the failure to exercise that care which the circumstances demand or absence of care or as fluid principle, which has to be applied to the most diverse conditions and problems of human life.
Negligence is the most important Tort in Law. Its origin is to be found in trespass, the action was developed and formulated in the 19th Century and now exists in its own rights as a separate and independent tort.
In the case of OJO V. GHARORO per E.O Obgwu Egbu JSC as he the was, Negligence was defined as the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
For an individual to prove Negligence, there are 3 basic element to prove;
1. A Legal duty of care owed by the defendant to the plaintiff.
2. That the duty of care was breached .
3. That the plaintiff suffered damages arising from the breach.
Medical Negligence can be defined as a Failure on the part of the medical Practioner to exercise a reasonable degree of skill and care in the treatment of his/her patient.
The medical and dental Practioners Act 2004 is the principle law regulating the medical profession in Nigeria.
This Act established the Medical and Dental Council of Nigeria which is responsible for the registration of Medical and Dental Practioner.
This council codified the rules of professional conduct for Medical and Dental Practioners. The Act also established the Medical and Dental Practioners investigating panel, charged with the responsibility of carrying out preliminary investigations of any allegation of infamous conduct in professional respect made against a medical practitioner.
The Act also established the Medical and Dental Practioners Disciplinary Tribunal, charged with the responsibility of trying cases investigated by the Panel.
It is said that a registered professional who fails to exercise the skill or act with the degree of care expected of his experience and statues in the process of attending to a patient may be liable for professional Negligence.
Duties owned by a Doctor to his/her patient
1. Duty to provide adequate counselling.
2. Duty to carryout proper diagnosis
3. Duty of emergency medical services
4. Duty to warn patients of likely side effects of treatment and the risks thereof.
5. Duty to obtain consent.
6. Duty to respect privacy and confidentiality.
7. Duty to administer proper treatment.
Examples of Medical Medical Negligence
1. Improper assessment of patient
2. Retention of objects in operation site.
3. Improper/lack of counselling of patients
4. Failure to refer patient I good time
5. Improper Diagnosis/ incorrect diagnosis
6. Failure to attend to patient and at due time.
7. Making mistakes in treatment.
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.
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”
REMEDIES FOR MEDICAL NEGLIGENCE
A victim of Medical Negligence can make a complaint under the criminal law, institute an action for civil wrong or follow the complaint procedure provided by the medical and dental Practioners Act 2004.
a. Under criminal law: this comes to play in the gravest circumstances where such negligence resulted in the permanent disability or even death of the patient. Where death occurs, the Medical Practioner can be liable for manslaughter.
Section 303 of the Criminal Codeprovides thus “It is the 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 he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty”.
Section 343 (1) (e) states 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 given Medical or surgical treatment to any person who he has undertaken to treat is guilty of misdemeanor and is liable to imprisonment for one year.
The court also held in R v Akerele where a medical practitioner who applied overdosed on a drug on a number of children, which led to their death, was held to have been criminally negligent and accordingly convicted for manslaughter.
b. Under Civil Claim: The Medical Negligence here must be that of tortious negligence which has to be proved by the claimant.
This can come in where the patient can prove that; 1. The Medical Practioner owed a duty of care to the patient. 2. Such duty was breached 3. And as such, the patient suffered damages.
This civil claim can give rise to vicarious liability, this is based on the general principle that an employer is liable for the act of his employee in the course of his employment see the case of IBEKWE V. UCH BOARD OF MANAGEMENT.
C. Complaint filed with the Medical & Dental Council of Nigeria: since the medical profession in Nigeria is regulated by Medical and Dental Council of Nigeria, there are however, Disciplinary bodies including the Panel &Tribunal which complaints of medical Negligence can be made to.
As earlier started, the panel carries out preliminary investigations on any allegation of infamous conduct in professional respect made against a medical practitioner, and where such allegations has merit, it is now on the tribunal to carry out the trial.
After the conclusion of the trial by the tribunal, where the Medical Practioner is found guilty the tribunal can;
a. Strike the Practioner’s name off the register.
b. Suspend the Practioner’s License for a period not exceeding 6months.
c. Admonish the doctor.
Note that the decision of the Tribunal can also be Appealed at the Court of Appeal.
A medical practitioner can face Disciplinary actions and also face criminal or civil action where the case warrants.
CONCLUSION
It is pertinent to note that not every action or omission by a medical practitioner will lead to medical Negligence. See the case of OJO V. GHARORO & ORS (2005) 25 NSCQR.
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