Legal Articles Nigerian Law

MEDICAL NEGLIGENCE: WHAT ARE YOUR RIGHTS? – Ayotomiwa Olufunso Esq

INTRODUCTION
Hospitals and clinics are widely believed to be homes of healing and relief. But sometimes, this presumption turns on its head. The tension and pressure that engulfs patients and their family members flowing from the expectation of the doctor’s next statement on the medical situation of the patient is monumental, especially patients in fragile health conditions. The moment the doctor says “I am sorry, we tried our best”; the drama that follows can be very agonizing and heartbreaking. Regarding the earlier quoted statement of the doctor however, a salient question is hardly answered: Did the doctor or the medical team put in their best as they claim?

A countless number of people have been victims of premature and untimely deaths culminating in big question marks as to the expertise of some health practitioners. It was discovered that 61.69% of Nigerian patients feel that Nigerian doctors are arrogant and careless about their patients’ conditions and plights[1]. Also, 33.3% of Nigerian patients indicated that their doctors’ treatment has caused them extra injury than the ones that took them to the hospital[2]. Laudably, the health sector has been doing a fantastic job in saving lives even in the most delicate situations. However, can we as a result, turn blind eyes to the medical incompetence tarnishing the image of the profession? The answer is in the negative.

Background
In 2016, researchers from Johns Hopkins Hospital published the results of a comprehensive study on medical errors which estimated that medical errors result in 250,000 deaths each year. The Hopkins study was published May 3, 2016 in the British Medical Journal (BMJ). This estimate ranks medical malpractice as the third leading cause of death in the United States behind heart disease and cancer. A prior study done in 2009 estimated the number of medical error fatalities each year at 200,000. The Institute of Medicine (IOM) has offered a more conservative estimate of 98,000 deaths per year due to medical negligence.[3]

In Nigeria, the situation is even more pathetic. Nigeria is arguably the most populous country in Africa with an estimated population of 200 million people. Unfortunately, about two-thirds of this humongous population live in extreme poverty{4] and further afflicted by the incidence of a dwindling and highly degenerated health sector. However, inequitable distribution of health care facilities, inflationary cost of health care services, and inaccessibility of existing infrastructure in Nigeria are some of the serious challenges to the survival of an average Nigerian which affects our health care system, medical negligence has further aggravated the state of the health sector by increasing mortality rate and leaving some Nigerians to stay glued to superstitious beliefs of “predestination” or “God’s time”.

MEDICAL NEGLIGENCE EXPLAINED
Medical Negligence may be defined as an act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care[5]. As short as this definition, it encapsulates all reasonable possibilities with respect to any circumstance relating to medical negligence.

Similar to drivers, doctors and other professionals, medical professionals equally owe a duty of care to their patients, to provide treatment in line with the “medical standard of care,” which is defined as the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.[6]

Medical negligence is best explained as the situation where a medical practitioner (doctor, dentist, nurse, surgeon, etc.) deviates from the general medical standard of care and skill he is expected to exhibit in the course of his job and the standard which a reasonably competent professional with the skills, acting reasonably would not have made the same error[7]. The Hippocratic Oath, one of the oldest binding documents in history even postulates that medical practitioners MUST treat patients to the best of their ability.

However, not all cases of medical negligence result in injury, aggravates health conditions or occasion death of patients. Some injuries are due to the inherent and inevitable risks associated with the practice of medicine; notably, such risks do not fall under the umbrella of medical negligence[8]. These points necessitate a visit of the position of the law on medical negligence.

LEGAL SPHERE OF MEDICAL NEGLIGENCE
Professional bodies have laws or rules guiding the conducts of their members, and the medical profession is no exception. Just as there is the Legal Practitioners Act (LPA) and Rules of Professional Conducts for Legal Practitioners (RPC), so there is the Medical and Dental Practitioners Act (MDPA) and Rules of Professional Conduct for Medical and Dental Practitioners also known as the Code of Medical Ethics for health practitioners (the Rules).

A pedantic examination of these Rules discloses certain misconducts which may amount to medical negligence[9]:

  1. Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so.
  2. Manifestation of incompetence in the assessment of a patient.
  3. Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them.
  4. 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 organ.
  5. Failure to obtain the consent of the patient (informed or otherwise) before proceeding on any surgical procedure or course of treatment, when such a consent was necessary.
  6. 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.
  7. Failure to refer or transfer a patient in good time when such a referral or transfer was necessary.
  8. Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.
  9. 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.

WHAT YOU NEED TO DO
Movies or native traditions may encourage beliefs in the potency of the dead in retaliating, ensuring vengeance or seeking redress. However, such beliefs have no place in the scheme of legal or logical analyses.

Medical negligence usually results in injury or aggravated health conditions and deaths in extreme cases. A Victim of injuries arising from medical negligence or the estate of a deceased patient may sue the medical practitioner and hospital concerned to Court to seek redress. Victims may also file formal complaints with the Medical and Dental Council of Nigeria, a body empowered to investigate such matters to ascertain a prima facie[10] case or otherwise [11].

Furthermore, victims of medical negligence may resort to Alternative Dispute Resolution (ADR) in order to save time and cost, or employ the services of a competent legal practitioner to file a law suit in Court against the erring or negligent medical practitioner to claim damages.

With respect to filing a law suit for medical negligence, it has been established that it is only in extreme cases of medical negligence when the doctor’s negligent treatment causes injury to the patient, makes the patient’s condition worse, causes unreasonable and unexpected complications, or necessitates additional medical treatment (which we can flank with the word “Gross”) that the Court may likely find for the Plaintiff or Claimant.[12]

The Courts are usually reluctant to find against doctors on the ground of certain public policy or societal value considerations. The Courts are usually circumspect with the objective of avoiding a judicial precedent capable of causing more harm to people as far as the profession is concerned; making medical practitioners disinclined or uninterested in saving lives. This is analogous to the fear of the Nigerian citizenry in reporting criminal cases to the Nigeria Police as the complainant may end up becoming the suspect and may be abused, dehumanized and even incarcerated.

In the case of Ojo v Ghahoro & Ors, [2003] LPELR-2383 (SC), Niki Tobi, JSC, was persuaded by the words of Lord Denning, in his sub-chapter titled “Doctors at Law in Part Six on Negligence in his book: The Discipline of Law, pages 237, 242 and 243:

“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.”

Furthermore, the Court requires adequate evidence to support an allegation of medical negligence. Victims or their representatives may call expert witnesses to establish their case and even tender documentary evidence in court to further support their claims, a guilty verdict by Medical & Dental Practitioners Disciplinary Tribunal can also constitute evidence in court.

To wrap up this part, medical negligence falls under civil suits, being a civil suit, the standard of proof is preponderance of probability which means the Plaintiff bears the burden of proof, he must prove that the doctor was negligent based on the fact that the doctor owed him duty of reasonable care, he failed to exercise such care and that the breach of his duty of care made him suffer damage, injury and loss[13]. In some situations, the complainant can invoke the principle of res ipsa loquitur or “the fact speaks for itself”{14}. The principle comes into operation only when there is proof that the occurrence was unexpected, that the accident could not have happened without negligence and lapses on the part of the doctor, and that the circumstances conclusively show that the doctor and not any other person was negligent.[15]

WHEN TO SUE
Victims or their next of kin have only three years to make a claim for compensation and this time period runs from the date when the victim receives such medically negligent treatment or the date on which they first discovered that the treatment was negligent.

PUNISHMENT FOR MEDICAL NEGLIGENCE
Upon proper investigation and proof of medical negligence, the negligent medical practitioner is liable to:

  1. Suspension or a period of six months; or[16]
  2. Having his name struck off the medical or dental register[17] i.e. he can no longer practice again, the 2011 criminal case of Dr. Conrad Murray (The late pop musician, Michael Jackson’s doctor) comes to mind.
  3. Admonishing the person[18]

CONCLUSION/ RECOMMENDATIONS
The health sector is improving especially with the global advent and insurgence of technology, regardless, medical negligence is still a prevalent plague in the health sector and the fact that medical negligence has become normal in Nigeria is alarming and absolutely disheartening. People are poorly educated medically and know very little or nothing. Worse still, the damning effects of medical negligence is primarily borne by innocent patients.

Stakeholders in the health sector need to address this situation without delay by ensuring certified health workers are the only ones entitled to possess medical license, the license should be earned based on subsequent assessment and the regulatory body for health practitioners should also organize periodic and proactive seminars and trainings to update the knowledge base and communication skills of its members for the betterment of their patients and strictly penalize members who fail to attend.

The Medical and Dental Practitioners Disciplinary Tribunal should show no favoritism in its decisions, reinforce speedy delivery of verdicts and ensure cases before it be treated with utmost priority.

As for the Doctors and medical practitioners generally, consultation with other colleagues in dicey situations should be done.

Finally, the importance of a competent legal practitioner on both sides of the medical negligence divide cannot be overemphasized.

Endnotes

1. Abugu, U (2015) A critical appraisal of the legal regime for medical malpractices claims in Nigeria PhD Thesis, Faculty of law, university of Abuja, cap 66 pp. 424

2. Ibid at p.427

3. Miller & Zois, LLC (2019 Medical Malpractice Statistics) Available at: millerandzois.com/medical-malpractice-statistics.html Accessed on August 5, 2019

4. World Economic Forum (Three things Nigeria must do to end extreme poverty) Available at: https://www.weforum.org/agenda/2019/03/90-million-nigerians-live-in-extreme-poverty-here-are-3-ways-to-bring-them-out/ Accessed on August 5, 2019

5. David Goguen, J.D. Medical Negligence Available at: https://www.alllaw.com/articles/nolo/medical-malpractice/negligence.html Accessed on August 5, 2019

6. Ibid

7. Observations of Lord President Clyde in Hunter v Hanley [1955] SLT 213 in: HL Nathan, Medical Negligence
(Butterworth 1957).

8. David H Sohn, „Negligence, Genuine Error, and Litigation‟ [2013] (6) International
Journal of General Medicine; 49–56.

9. Rule 28 (Rules of Professional Conduct for Medical and Dental Practitioners) page 37

10. Based on what seems to be the truth when first seen or heard (Cambridge Dictionary) Available at: https://dictionary.cambridge.org/dictionary/english/prima-facie Accessed on September 4, 2019

11. Section 15(1) Medical and Dental Practitioners Act (MPDA)

12. Suszek Andrew, „What is Medical Malpractice?‟ ALLLAW Available at: https://www.alllaw.com/articles/nolo/medical-malpractice/negligence.html Accessed on September 4, 2019

13. Crawford Morris and Alan Moritz, Doctor and Patient and the Law (5th edn, C.V. Mosby Co 1971) 326.

14. K K S R Murthy (Medical negligence and the law) Available at: http://ijme.in/wp-content/uploads/2016/11/1279-5.pdf Accessed on September 4, 2019

15. Ibid

16. Okezie v. Chairman Medical & Dental Practitioners Disciplinary Tribunal (2010) 26 WRN

17. Section 16(2) (a) Medical and Dental Practitioners Act (MPDA)

18. Section 16(2) (a) Medical and Dental Practitioners Act (MPDA)

Pictures Credit : Shutterstock.com

Article Author : Ayotomiwa P. Olufunso

Ayotomiwa is a legal practitioner in Lagos, he graduated from Obafemi Awolowo University. He is currently serving as an Associate and company secretary in the legal department of Diamond PFC.

He has special interest in corporate law and and real estate. He is passionate about learning and making impact in the legal community. He is an unrepentant Chelsea fan and has an undying love for good music.

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