Medical Negligence in Nigeria : An Overview.
By Barr. Nneoma Grace Ogbah
What is Negligence?
Negligence according to Blacks Law Dictionary, can be said to be the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. See the case of Blyth .v. Birmingham Water works (1986) 11 exch 781 @ 784. See also the case of Odinaka .v. Moghalu (1992) 4 NWLR pi 233 @ p15 SC.
What is medical negligence?
Medical negligence / medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. The negligence might arise from errors in diagnosis, treatment, aftercare or health management.
To establish a case in negligence, it must be shown that a duty of care was owed; there had been a breach of that duty; and that damage or injury was suffered as a direct result of a breach of the duty owed( elements of negligence). See the case of First Bank Of Nigeria plc .v. Banjo; In medical negligence and going by the definition above, medical practitioners who undertake the care and treatment of patients owe a duty of care to such patients. A duty of care is implied when a patient is registered and is being treated in a hospital. It is argued however, that care of medical practitioners ought not to be limited only to the patients under their direct management, but should be extended to any patient whom they come across in their professional environment. As such, a medical practitioner owes the duty to care for every patient found within the hospital premises whether or not he is on the management team of such patient.
The degree of negligence required here is gross negligence and not mere negligence or ordinary negligence. Judicial courts have defined gross negligence as a heedless and palpable violation of the legal obligation to others’ rights. This means that the wrongdoer has been completely indifferent to his actions to the point that it displays an utter disregard for the rights or well-being of others. Again, the intent to harm is not necessary for gross negligence, but a lack of concern as to whether harm might result characterizes this category of negligence.
DUTIES OF A MEDICAL PRACTITIONER TO HIS PATIENT:
Every medical practitioner is expected to take the appropriate steps available to make the right diagnosis, provide treatment and follow-up on their patient’s progress. 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.
They are expected to administer treatment to a patient in a recognized and acceptable way. Where a medical practitioner falls short of knowledge in a given situation, he is expected to seek assistance from his colleagues or better still, refer such patient to a specialist.
Some of the duties of a medical practitioner include:
- Duty to treat a patient, as well as to inform a patient of the pros and cons of a particular treatment
- Duty to duly inform a patient of everything he needs to know concerning his treatment or sickness, such as his diagnosis, seriousness of his treatment and the risk of such treatment.
- Duty to obtain patient’s free and informed consent. This can be achieved only by providing the necessary informations to a patient and attending to the patient’s questions. The duty to get the consent of patients is a continuous process.This is why patients must be kept informed about any new information about their states of health and the treatments they are receiving.
- Duty to respect patient’s confidentiality. This can also be called duty of professional secrecy. Patient’s confidentiality here refers to informations giving out to the practitioner by the patient, as well as discoveries made by the medical practitioner in the course of treatment of such patient.
However, the duty of confidentiality can be waived either by the patient or by the law, as the law provides that certain sicknesses must be reported to the public health agencies. Also, where there is a very strong reason to reveal patient’s information for the benefit of people close to such patient or the patient himself, the duty of confidentiality can also be waived.
How difficult is it to prove medical negligence?
medical negligence claims can be quite difficult to prove. This is because it is not commonly easy to establish negligence since courts have to rely on the expert evidence of other medical personnel, who as we all know will be reluctant to give same.
This judicial naivete is the exception rather than the rule; most judges are aware of the dilemma of the plaintiff in a malpractice action and this awareness has been manifested in judicial opinions:
The law of malpractice is clearly defined in most jurisdictions as it is here. Before the plaintiff-patient can recover, he must show that his injury has resul- ted from his doctor’s failure to exercise that degree of care and skill exercised by a doctor practicing the same specialty in his locality. In mounting such proof, the plaintiff must prove by testimony from the defendant’s own professional col- leagues what the degree of care and skill in the area is and that the defendant failed to exercise such care and skill. The human instinct for self-preservation being what it is, there is often disclosed in the trial of these cases what has been referred to as the conspiracy of silence-the refusal on the part of members of the profession to testify against one of their own for fear that one day they, too,may be defendants in a malpractice case. [Brown .v. Keaveny, 326,F.2d, 660,661 (Skelly Right .j. (dissenting)].
Another problem of legal action against medical practitioners is the issue of judicial reluctance to hold medical practitioners liable because of a mishap or error. The reason for this is the fact that medical practitioners can only treat and care but can’t heal a patient as that power belongs to God. This was duly buttressed in the case of
Standard of Care in Medical Practice:
This is an objective issue. The standard of care required of medical practitioners is “reasonable care”. The factors which commonly affect the standard of care expected of a medical practitioner in every society is dependent on certain factors viz; a. The locality being considered.
- The availability of relevant medical facilities.
- Whether or not there was an emergency.
- Accepted medical practice.
- The specialist skill of the medical practitioner concerned.
These factors are usually all considered to determine if a medical practitioner has exercised the standard of care expected of a “reasonable”medical practitioner in his shoes.
Where a medical practitioner fails to perform his duty as required and any sort of negligent act is discovered, he’ll be held liable for such negligence and the victim of such negligence can either institute a criminal proceeding, an action for civil wrong or even follow the complaint procedure provided by the Act. A medical practitioner can be held criminally liable for negligence when his negligent act results to permanent injury or death of his patient. By virtue of Section 343 (1) (e) of the criminal code, such practitioner shall be guilty of a misdemeanor and liable to imprisonment for a year. The section provides thus;
“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”.
The code of conduct of medical and dental practitioners also made provisions for medical negligence and one of the punishments to a medical practitioner found liable of medical negligence/ malpractice in addition to damages is the suspension from practice or withdrawal of his license.
The Legal Framework of Medical Negligence in Nigeria:
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 and the Medical and Dental Practitioners Disciplinary 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.
ENFORCEMENT OF MEDICAL NEGLIGENCE IN NIGERIA.
REMEDIES FOR NEGLIGENCE.
A. Damages ( this is the main remedy for negligence)
B. Termination, dismissal or sack of medical practitioner where he is an employee.
C. Revocation of license.
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