Medical Negligence in Nigeria: Illegal or Unethical
By Similoluwa Awe
Abstract
In a morally inclined society like Nigeria, the definition of what is wrong and in what context is a very intertwined debate as it is arduous to separate law from morality, which has affected the development of law as most rights are often unconsciously considered as mere ethical obligations, which are ignored on many occasions, as only illegality is rebuked as unacceptable, yet forgetting how ethics overlap with the concept of law. This article addresses the scope of Medical Negligence in the light of Nigerian jurisdiction, the legality or illegality of the theory, legal implications, the laws in place, and the available redress for victims of Medical Negligence.
Keywords: Negligence, Nigeria, Medical, Illegality and Unethical
Introduction
The concept of law at different points is a result of evolution. Considering the recent increasing interest and trends in Medical law and Ethics in Nigeria, one may be able to cajole that the phrase Medical Negligence has only existed as old as the oldest Gen Z, but in reality, the existence of Medical malpractice has been traced back with history to the Code of Hammurabi in 2030 BCE which the Roman law recognized as a legal wrong and was expanded and introduced to continental European as early as 1200 CE.[1] Considering one of the sources of Nigerian law as the Received English Law, it is clear this concept has existed in our system from time immemorial.
Medical in this context revolves around caregiving in the healthcare sector in Nigeria, and to arrive at Medical Negligence as a phrase, we have to consider the word negligence in itself. In Universal Trust Bank of Nigeria v Fidelia Ozoemena[2], the Supreme Court states the requirement for proof of negligence and defines it 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.’
In light of the above definition, it is inferable that Medical Negligence is a breach of the duty a caregiver owes to their patient. This position is corroborated by the position held by the supreme court in Abatan v Audu[3], where Aderemi JCA held that:
‘The relationship between a Doctor and his patient is one of trust and confidence; a relationship where one has the power and the duty to treat and restore the other to mental and physical well-being.’
In a situation where a caregiver does anything contrary intentionally or carelessly, such a person has committed Medical Negligence, which may seem like a mere moral duty, is a liable cause of action under Nigerian law. The Case of Aoko v Fagbemi[4] set a clear distinction on how a person can not be prosecuted, under Nigerian law, for an offence in which the punishment is not stated in any law in place at the time of commission of such an offence. It takes us to the question: Are there laws, rules or frameworks in Nigeria to guide the practice of caregiving in the health sector in Nigeria, capable enough to be relied on to sanction Medical Negligence? The answer is yes, as over 10 of such in place are highlighted below.
The frameworks of law, rules, and policies that regulate medical practice in Nigeria include but are not limited to the following:
- The 1999 Constitution of the Federal Republic of Nigeria (as amended).
- The Medical and Dental Practitioners Act of 2004.
- The Criminal Code Act of 2004.
- The National Health Act of 2014.
- Medical Rehabilitation Therapist (Registration, etc.)
- The HIV/AIDS (Anti-Discrimination) Act 2014
- The Compulsory Treatment and Care for Victims of Gunshot Act of 2017.
- Medical and Dental Practitioner Act
- Nigeria’s National Health Act
- The Rules of Professional Conduct for Medical and Dental Practitioners.
- The Code of Medical Ethics in Nigeria
- Nursing and Midwifery (Registration, etc.) Act
- The Patients Bill of Rights by the Federal Competition and Consumer Protection Commission
- The Criminal Code Act
- Physicians Oath (modern version of Hippocratic Oath)
These are guidelines for the practice of Medicine at every point in caregiving in Nigeria, ranging from nurses, doctors and other support staff to the medical laboratory attendants. To regulate this is a sovereign regulatory body, the Medical and Dental Council of Nigeria (MDCN), and in addition to this regulatory role, they are also saddled with the responsibility of prescribing the rules of professional conduct and work ethics for medical practitioners. Aside from MDCN, there are other regulatory bodies which include the Medical Laboratory Science Council of Nigeria (MLSCN), the Medical Rehabilitation Therapists (Reg) Board of Nigeria (MRTBN), the Community Health Practitioners Registration Board of Nigeria (CHPRBN), Health Records Officers Registration Board of Nigeria (HRORBN) and Optometrists and Dispensing Opticians Registration Board of Nigeria (ODORBN).[5]
With these various regulatory bodies and condition precedents to bring legal action in a case of Medical Negligence, the concept is more reasonably considered as an ethical duty rather than an illegality. At this point, we will be considering the subject of illegality to have a clear and concise understanding of the term and the topic of discussion as a whole.
The term illegality in the literal and legal sense is defined by The Law Dictionary[6] as what is not authorised by law; Illicit; unlawful; contrary to law. Sometimes, this word means that which lacks the authority of or support from law, this definition in line with the case of Aoko v Fagbemi, as earlier discussed, is a clear pointer that the provisions of various frameworks listed above preempting some acts of caregivers from being unpunished, it shows the extent of the illegality of such actions. This concept might look like a setup for the medical profession, but the actions that constitute medical negligence justify how careless it is to make such mistakes.
The acts include:[7]
- Forgotten objects inserted into a Patient: this practice is common and exhibits a lack of caution amounting to negligence. Post-operation, patients suffer damage and pains as a result of leaving items such as gloves or other operational equipment, which in most cases lead to another operation which can traumatise the patient or even death. A classical example of this instance was the case of Miss Felicia Osagiede Ojo v Dr. Gharoro, University of Benin Teaching Hospital Management Board & Dr. S.A Ejide,[8] a case that got to the supreme court, where the plaintiff/appellant sued after x-ray showed that her postoperative abdominal pain after removing the growth in her fallopian tube was a result of broken needle in her abdomen, the defendant/respondents were charged, for both general and special damages.
- Administering the wrong treatment on a patient: In Nigeria, the most common illness is malaria.[9] It is a result of exposure to mosquitoes daily and other proven factors. Every Nigerian who feels feverish might think of trying to treat themselves for malaria first, and if that does not work, consider another possibility. In this light, a medical professional, after listening to the symptoms, might be tempted to conclude they are symptoms of malaria and prescribe medication for such. However, the most professional thing to do is to advise patients to do a test to ascertain what to treat them for. Instances that amount to the administration of wrong treatment on a patient in practical terms can include overdosing a patient, prescribing the wrong medication, wrong injection or overdose, and excessive dosage prescription, which are acts of negligence on which a patient may bring an action claiming damages for any injury from such act. A supreme court case that found one Mr Nnoli and his intern Mr Nwuzor liable for negligence was a case between the University of Nigeria Teaching hospital Management Board & ors. v Hope Nnoli,[10] where post mortem showed the death of children between ages 1-4 was as a result of compounded chloroquine administered on them as an act of the duo.
- Consent: obtaining consent from a patient is one of the most essential and delicate parts of caregiving but in a country like Nigeria where healthcare workers feel like they are doing patients a favour.[11] This part is often overlooked with the saying, so far I get well; they can do their job in their wish. It will take us to the question: Is it in all instances that the caregiver needs to seek permission, and is it in all cases? Generally, children may not be able to consent. In cases like this, getting consent from their loco parentis is essential. In some instances, the consent of the husband or other family member might also be an additional requirement in addition to the consent of the patient; an example of this is during a caesarean section, it is worthy of note that consent is essential to treat a patient, diagnose them of an ailment, organ transplant, disclosing their medical records and other instances. A patient can consent by conduct (nonverbal communication) even though, in some situations, consent by conduct will be inadequate, as express consent is the most suitable.[12] The concept of informed consent is probably the most important of all the duties as it is not just an ethical duty; it is a legal, as well as an administrative duty.[13] Aside from expression, which could be in writing or words and implied consent, consent might also be by surrogate means (family of patients). A patient can also give consent in advance and proxy consent by an authorised person. The Supreme Court, however, emphasised that where a patient is competent to consent, it should be directly from them.[14]
- Failure to attend to a patient promptly: this is a common practice, an instance that is still happening in hospitals today, yet leading to the death of both young and old, especially in cases of emergency. I have had personal experience taking an accident patient to a teaching hospital, where aside been given a bed, not attended to for hours, and eventually got to do an x-ray that evening, until the early hours of the next day they did not attend to her, the only thing that savaged the situation was the immediate first aid at the time of the accident by a private hospital who referred immediately due to the severity of the case; yet, still receiving such treatment. It reflects how our healthcare system is not working, yet attending to the patient promptly and adequately is an obligation that can legally be enforced, against a medical practitioner. Another scenario might not even be the case of a patient who has just been brought for necessary attention, as the hospital was held liable in the case of Dickson Igbokwe v University College Hospital Board of Management[15] where a patient who was brought and admitted in the hospital was diagnosed with postnatal psychosis; the hospital failed to attend to her promptly in line with the new reality in her case, she jumped from the hospital window from the 4th floor and died, the hospital was held liable.
- Failure to inquire and study patient medical history and stay updated on recent developments: In exercising the duty of care and diligence, it is crucial that for a caregiver to adequately and effectively cater for a client’s need, he should ask questions and check records, as failure to do so will amount to negligence. However, at inception, all information needed to treat a patient may not be readily available in an abridged manner, should be obtained as needed or become available as in the continuous process of taking care of a patient, the caregiver must stay updated.
Aside from the 5 acts that can amount to medical negligence discussed above, there are also others, which include Inaccurate diagnosis, divulging information carelessly, and failure to inform patients about the process and details of their treatment, among many other actions that can constitute negligent behaviour of a caregiver. From the conversation above and diverse framework, it is expedient to discuss the available options to a person who has suffered any form of medical negligence, depending on the circumstances of their case and ability to establish a prima facie case lies upon the standard of proof and ability to fortify the case by substantiated evidence both in civil and criminal cases which must be satisfied.[16]
The options are:[17]
- A civil action
- A criminal action
- A disciplinary action through the professional body
When and who can bring an action
There is a three-year limitation, which counts from the date of the incidence of damage to bring an action for damages for any injury sustained by claiming compensation for damage suffered.[18] The person who can bring an action for medical negligence is the person who has directly suffered damage from the negligent act. However, where the victim is a minor or is deceased, a relative or loco parentis of the child might take legal action against such malpractice.[19] Action against any healthcare provider who caters to patients providing service below the appropriate standard can be filed, where he could be liable for medical negligence.[20]
In the same vein, the hospital where such medical practitioner works can be vicariously liable for such misconduct and the reason for this is well established in a judgement delivered by Bench of Justices UU Lalit and Indu Malhotra in India[21] as follows:
It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.
Approach and Punishment for Medical Negligence
- Compensation for damage in a civil suit:[22] an aggrieved patient can proceed to the High Court to sue for negligence and to claim damages[23] for the injury suffered by them by the act of the medical practitioner.
- Negotiation or other forms of alternative dispute resolution: ADR can be an instrument for claiming settlement, which might be cost-effective and suitable where no criminal liability is involved.[24] It is also a more confidential, less formal and faster alternative to litigation.
- Litigation of criminal nature: usually against the state, and this happens in a situation where the act of medical negligence resulted in death. An example of this is the case of R v Akerele,[25] where a medical practitioner administered an overdose on some children, which resulted in their death; he was convicted of the offence of manslaughter.
- Reporting acts of negligence to disciplinary bodies: the regulatory committees are empowered to melt some punishment against medical practitioners found guilty. The Medical and Dental Practitioner’s Act set out in Section 16(2)[26] what the MDCN’s tribunal has the jurisdiction to do when a medical practitioner is guilty of professional misconduct as follows:
- Order the Registrar to strike the name off the register;
- Suspend licence for a period not exceeding six months;
iii. Admonition
Conclusion
In a careful attempt to gestate medical negligence as being either an ethical or legal wrong, we have considered the various aspects of defining it, discussing the laws in place, the acts that can constitute medical negligence, who can sue and who can be sued, as well as the punishments against any erring person, with this it seems it has been well established and has become easy to pick a side of the argument. However, I will conclude that despite the various attempts to clear doubts about medical negligence being mere ethical conduct, it does not eradicate the intertwined nature of law and morality. Medical negligence is an unethical conduct as well as an illegal act.
[1] Joseph S. Kass and Rachel V. Rose, ‘Medical Malpractice Reform: Historical Approaches, Alternative Models, and Communication and Resolution Programs’ AMA Journal of Ethics (Policy Forum 2016) <Medical Malpractice Reform: Historical Approaches, Alternative Models, and Communication and Resolution Programs | Journal of Ethics | American Medical Association (ama-assn.org)> accessed 27 April 2024
[2] (2007) 2 All NLR 584 (SC)
[3] (2003) JELR 74540 (CA)
[4] (1961) 1 ALL NLR 400 (MC)
[5] Maryam Abdulsalam, ‘A Review Of Medical Negligence In The Nigerian Healthcare Sector: Utilising The Law As A Panacea’ S.P.A. Ajibade & Co. (Nigeria, 2 January 2023) <A Review Of Medical Negligence In The Nigerian Healthcare Sector: Utilising The Law As A Panacea – Healthcare – Nigeria (mondaq.com)> accessed 3 May 2023
[6] The Law Dictionary, Featuring Black’s Law Dictionary, (2nd Ed.) <Black’s Law Dictionary – Free Online Legal Dictionary (thelawdictionary.org)> accessed 1 May 2024
[7] Ogundare Bisola, ‘Medical Negligence in Nigeria: A Quick Guide on Liabilities and Remedies’ (28 October, 2019) <https://ssrn.com/abstract=3476524> accessed 1 May 2024
[8] (2006) JELR 56140 (SC)
[9] Salwa Dawaki, and others, ‘Is Nigeria winning the battle against malaria? Prevalence, risk factors and KAP assessment among Hausa communities in Kano State’ National Library of Medicine (8 July, 2016) <Is Nigeria winning the battle against malaria? Prevalence, risk factors and KAP assessment among Hausa communities in Kano State – PMC (nih.gov)> accessed 7 May 2024
[10] (1994) LCN/2595 (SC)
[11] Similoluwa Awe, ‘Medical Law and the Nigeria Healthcare’, Simply law (26 July, 2022) <Medical Law and the Nigeria Healthcare – Simply Law> accessed 8 May 2024
[12] Emily Cronkleton, ‘What to know about ‘consent to treatment’, Medicalnewstoday ( 17 November, 2021) <What is consent to treatment? (medicalnewstoday.com)> accessed 8 May 2024
[13] Cleveland Clinic, ‘Informed consent’ <Why Informed Consent Matters (clevelandclinic.org)> accessed 8 May 2024
[14] Rom. Okekearu v Danjuma Tanko (2002) LAW GLOBAL HUB; Lead Judgment Report I (SC)
[15] (1961) WNLR 173 (HC)
[16] Ezinne Vivian Edu and Chidinma Blessing Nwakoby, Medical Negligence in Nigeria: A Critical Analysis [2023] Journal of Education, Humanities, Management and Social Science (JEHMSS)
[17] Queen Ukpo and Koski Oburuche, ‘(AN OVERVIEW) MEDICAL NEGLIGENCE IN NIGERIA’ Compos Mentis Legal Practitioner (14 September, 2023) <AN OVERVIEW OF THE CONCEPT OF MEDICAL NEGLIGENCE IN NIGERIA (compos-mentis.com)> accessed 3 May 2024
[18] Udomoh Eshemokha, ‘Medical law in Nigeria: When & how to sue for medical negligence in Nigeria’, NIMED HEALTH <Medical law in Nigeria: When & How to Sue for Medical Negligence in Nigeria – Nigerian Health Blog (nimedhealth.com.ng)> accessed 3 May 2024
[19] Unini Chioma, ‘An Insight Into Medical Negligence Under Nigerian Jurisprudence’, TheNigeriaLawyer (March 26, 2024) <An Insight Into Medical Negligence Under Nigerian Jurisprudence – TheNigeriaLawyer> accessed 3 May 2024
[20] Christy Bieber, ‘Medical Negligence: Legal Definition & Examples’ ForbesADVISOR <Medical Negligence: Legal Definition & Examples – Forbes Advisor> accessed 3 May 2024
[21] Supreme court, ‘ Why Hospitals are Vicariously Responsible in cases of Medical Negligence’, Bar and Bench <Medical negligence and vicarious responisbility of Hospitals, What SC said (barandbench.com)> accessed 3 May 2024
[22] Olawunmi Ojo, ‘Medical Negligence In Nigeria: The Legal Remedies’ Mondaq <Nigeria – Healthcare – Medical Negligence In Nigeria: The Legal Remedies (mondaq.com)> accessed 10 May 2024
[23] The trusted advisors, ‘Medical Negligence in Nigeria: The Legal Remedies’, (Nov 23, 2022) <MEDICAL NEGLIGENCE IN NIGERIA: THE LEGAL REMEDIES | trustedadvisorslaw.com> accessed 5 May 2024
[24] Administrator, ‘An Overview of Medical Negligence in Nigeria and its legal implications’ Judy <An Overview of Medical Negligence in Nigeria and its legal implications – JUDY BLOG | Updates, Analysis, and Expert Opinion> accessed 11 May 2024
[25] [1968] All NLR 306 (HC)
[26] Medical and Dental Practitioners Act, 1988, Cap M8, LFN 2004
