Guest Columnist

THE NECESSITY FOR LEGAL AID PRO BONO SERVICE IN THE NIGERIAN HEALTH SECTOR – Damilare A. Adeoye Esq

The central aim of the Law is the attainment of justice for everyone and in every area of human life. As such, the law cannot afford to be docile and static. As the world keeps changing, a concurrent review and improvement in the quality of human lives and activities is crucial.

More specifically, the health sector being a very sensitive sector in any society cannot be left out of regular and appropriate scrutiny and review. This can be best achieved by the functional institution of apropos mechanisms, both internal and external, for viable checks and balances.

Unfortunately however, access to law and legal services in the health sector by most medically vulnerable Nigerians is nearly impossible. This could be accounted for on the basis of the proportion of indigent persons to the (high) cost of securing the services of a legal practitioner[1].

This article therefore analyses this critical issue and identifies the need for pro bono legal services in the health sector. It calls the attention of well-meaning Nigerian legal practitioners to the need to develop and sustain strong interest in public/societal health in order to ensure better practices among health workers across the country.

Why Pro Bono?

Life and good health are sacred and inviolable. Public order trembles and shrieks in pains where the individual and collective existence of mankind faces threat. In Nigeria, cases of ineptitude, sloppiness and unethical conducts by Health Care workers are very common. Unfortunately, a tremendous number of these cases go under the carpet. This is usually a result of the high cost of probing such skeptical circumstances by lawful means – high cost of competent legal services. Other factors include illiteracy, lack of restorative values, and complicated and inefficient judicial procedures.[2] As a result, unethical and deplorable medical practices continue as the norm.

It is important to note that there are still other significant factors that militate against good health/medical practices in Nigeria. An instance of this was made clear by Temitayo Ayetoto, an undercover investigator, who for two weeks embedded herself in the medical circumstances facing patients at the accidents and emergency wards of two of Nigeria’s biggest tertiary hospitals. She uncovered how lack of bed space leaves patients stranded at the emergency wards for dozens of hours and sometimes for days, hoping that an in-patient is discharged, transferred or, rather sadly, dies. More ridiculously, there is no solid guarantee that any of these will even happen!

Temitayo also found out in her investigation that almost 60% of increased mortality occurred in children and elderly emergencies, flowing from her research on Overcrowding in Emergency Departments of Referral Centers[3]. This state of things clearly puts health care workers in an intractable position.

Against this backdrop, it is important to emphasize the need for medical practitioners to stand height to height with basic standards of practice expected by Nigerian law.[4] This is notwithstanding inherently difficult professional realities in the medical field.

Among several cases, reported and unreported, the recent story of a young and promising lady, Moradeun Balogun, who had her life cut short owing to lawlessness at two different levels. First was the attack she suffered in the hands of some outlaws who robbed her of her belongings and dealt a lethal stab to her in the neck. Closely related to the first, the second was the alleged refusal of a Lagos-based private hospital to offer her treatment because a police report was not produced[5], without any legal justification.

Indeed, this further buttresses the need for stern legal intervention to hold erring medical practitioners and health institutions liable for these brazenly illegal and unethical practices against patients, especially indigent ones.

Why the Health Sector?

The responsibilities of health workers in health service delivery are sacrosanct. Patients need legal guidance and assistance in knowing their rights as human beings, as Nigerians and as medical patients. Most importantly, patients require the services of legal practitioners for protection and as a check in ensuring sound medical practice among medical professionals. Where potentially overzealous or irresponsible medical practitioners are made to see that their jobs and even lives depend on rendering competent medical services, the attitude would certainly be different.

The idea is therefore not to discredit the professional acumen and monumental contributions of Nigerian health workers. It is rather aimed at reinforcing the value of their contributions to the Nigerian society while simultaneously promoting sanity within the Nigerian health space. This necessity is hence, not a call to arms or conflict between two highly regarded professions but to synergize for better practice and a better Nigeria. A popular saying reminds us that “iron sharpens iron”.

In addition, it is a call to sensitize Nigerian healthcare providers at large of the legal implications of their professional activities beforehand.

Where can the Law and Lawyers Intervene?

There are several medico-legal areas that call for serious attention. The less popular ones include the rules and guidelines that regulate the activities of Nigerian health workers in their respective professional capacities, Public Health Law, Mental Health Law, Telemedicine, Cloning, Bioethics, amongst others. The most familiar area is Medical Negligence, which is the pillar upon which most medical cases rest. As such, a quick break down of acts considered to be negligent in the medical sphere becomes necessary.[6]

The following acts or omissions may give rise to a cause of action in Medical Negligence:

  1. Failure to attend promptly to a patient requiring urgent attention when the doctor was in a position to do so. The experience of the recent casualties is pretty depressing. The story of Funmi Odusina is a good instance; a postgraduate student of the University of Lagos, who, while in the company of her friends at a Lagos beach, was rescued from drowning, but was rejected by some private hospitals. She died on the way to the Lagos Island General Hospital. Another unforgettable case is that of Grace Obinna who was violently raped in her Ikorodu home. She was taken to two private hospitals, which refused to admit her. She also died albeit, on the way to the Lagos State Teaching Hospital, Ikeja.[7]
  2. Improper or incompetent assessment of a patient, or incorrect diagnosis, particularly when the clinical features are so glaring that no reasonable and competent doctor could have failed to notice them.
  3. Proffering wrong advice or failure to give 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 or harms.
  4. Failure to obtain the consent of the patient (informed or otherwise) before proceeding on any surgical procedure or course of treatment, when such consent was necessary.
  5. Unjustifiable error 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, and so on.
  6. Failure to refer or transfer a patient in good time when such a referral or transfer was necessary.
  7. Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.
  8. 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.
  9. Failure to admit into hospital a patient whose condition requires hospitalisation. Despite the enactment of the Compulsory Treatment for Gunshot Victims Act in 2017, many hospitals still fail to give emergency treatment as we have seen in recent cases across the country.
  10. leaving a surgical instrument or swab in the body of a patient after operation
  11. failure to cross match blood before transfusion
  12. using a patient for experimental purposes without his consent
  13. Use of unsterilized tools.
  14. Where swab is left in operation site or patient wakes up in the course of surgical operation despite general anaesthetic).
  15. Unjustifiable infringement on any of the rights of the patient in the course of treatment, e.g., undertaking a line of treatment that is against the religion of a patient and the will/consent of the patient.

It must be noted that all the afore-mentioned conducts are expressly prohibited under Rule 29.4 of the Code of Medical Ethics in Nigeria published by the Medical and Dental Council of Nigeria (MDCN) 2008.

Rationale behind the Need for Legal Intervention

Situations of unethical practices, medical neglect and negligence, unprofessional attitudes and arbitrary practices in some healthcare centers, Clinics, Medical Centers and even General Hospitals have assumed the status of a continuum in Nigeria. These have not only caused countless avoidable deaths and injuries, but also public distrust in the Nigerian health care system.

CONCLUSION

Oftentimes, the Government and patients/victims themselves have been held responsible for the deplorable state of health care in Nigeria including negligent acts by Medical Practitioners. The Nigerian health system is evidently lacking in many ways. The government also has not been sufficiently helpful with gross infrastructure concerns and deficit. Occasionally too, patients have undeniably contributed to the Negligence they complain of.

Hence, all these peculiar problems create obstacles to the ability of the clinicians to apply their full expertise to the full degree expected. Meanwhile, it is respectfully submitted that this situation would in no way, preclude medical practitioners from acting within the expected degree of reasonable care within the peculiar circumstances that may arise.

This degree of professional skill and reasonable care is well stressed in the last paragraph of Rule 29.3 of the Code of Medical Ethic in Nigeria published by the Medical and Dental Council of Nigeria (MDCN) 2008. In situations of anticipated or actual breach of this duty, the pro bono services of competent lawyers are immensely needed. This becomes even more crucial considering the poverty rate per-capita in Nigeria today.[8]

The rise in unprofessional, unethical and negligent conducts in the Nigerian Health Sector and the need for public enlightenment in medico-legal matters are therefore why lawyers must take up the duty of protecting lives and ensuring justice by providing their selfless services in the sector.[9]

Author:

Adeoye Damilare Adetayo Esq

Legal Associate at 1st Counsel Solicitor (Medical Law Consultants);Member, World Association for Medical Law; and Centre for Medical Law Research and Development. Email Address: adamilreadetayo@yahoo.com

Contact on: (+234) 08165548350

[1] See Damilare A. Adeoye, The Necessity for Proactive Pro Bono Services in Nigeria available at <https://lawaxis360degree.com/2019/06/05/the-necessity-for-proactive-pro-bono-services-in-nigeria/>, accessed on 02 April 2020 at 06:25 pm

[2] Babafemi Odunsi ‘Glancing Back at Eden: A Note Medical Negligence in Nigeria¸ Ogun Bar and Bench Forum Public Lecture, October 2019, Abeokuta, Ogun State.

[3] Temitayo Ayetoto, “Undercover Investigation: The Lagos hospital wards of deadly wait(I)” was accessed online at https://businessday.ng/businessday-investigation/article//undercover-investigation-the-lagos-hospital-wards-of-deadly-wait-i/ (accessed on 05/03/20)

[4] Denloye v. Medical Practitioners Committee (1968) 1 All NLR 306; Code of Medical Ethics in Nigeria, 2008

[5] Nigerian Tribune Newspaper Editorial publication tagged, “The Avoidable Death of Citizen Moradeun” was accessed online at https://tribuneonline/the-avoidable-death-of-citizen-moradeun/ accessed on 06 March 2020 at 11:04 pm

[6] See generally e.g. I. O. Iyioha, supra note 27 at 68, 74-75. O.S. Kuteyi, ‘An Appraisal of Medical Negligence in Nigeria’ [PhD] Thesis submitted to the Faculty of Law, in partial fulfillment of the requirements for the award of Doctor of Philosophy (PhD) Degree in Law of the Obafemi Awolowo University, Ile-Ife, Nigeria, 2016, 87-102. See also Komolafe Akinlabi Richard Obafemi Medical Negligence Litigation in Nigeria: Identifying the Challenges and Proposing a Model Law Reform Act, A Thesis submitted to the Trinity College, Dublin in fulfillment of the requirement of the award of the Degree of Doctor of Philosophy 2017. 87-102. See as well Motunrayo Olaleye, Nigeria: Medical Negligence In Nigeria: addressing the Public on its scope and the resultant Legal Implications’ online at http://www.mondaq.com/Nigeria/x/754598/Healthcare/Medical+Negligence+In+Nigeria+Addressing+The+Public+On+Its+Scope+And+The+Resultant+Legal+Implications (accessed on 20/02/20).

[7]Funmi Odusina’s story available at https://www.thisdaylive.com/index.php/2016/06/09/how-two-unilag-students-drowned-in-elegushi-beach/ accessed on 05 March 2020 at 10:30 pm;

Grace Obinna’s story available at https://thenationonlineeng.net/suspected-ikorodu-serial-rapist-held/ accessed on 05 March 2020 at 12:15 pm. Also, see TheGuardian Nigeria, Bayo Ohu, the Guardian Reporter, murdered, 31 August 2009, available at <https://guardian.ng/news/nigeria/national/bayo-ohu-the-guardians-reporter-murdered/> accessed on 06 March 2020 at 09:05 am. The case of Bayo Ohu of The Guardian is unforgettable. Ohu, who was attacked by assassins in his Lagos home in 2009, did not die immediately, but was, rejected at a private hospital close to his home; he could not make it to the nearest public hospital.

[8] A staggering 46.5%, accounting for at least, 91.8 million Nigerians. See Sahara Reporters, 91.8 Million Nigerians Are Extremely Poor, Says World Poverty Clock, June 05 2009, available at <http://saharareporters.com/2019/06/05/918-million-nigerians-are-extremely-poor-says-world-poverty-clock> accessed on 04 April 2020 at 10:31 pm

[9]Though despite the many challenges involved in pursuing justice in cases of medical negligence, there has actually been an increase in the number of Nigerians reporting medical negligence. In the 36-year span between 1962 and 1998, there were 94 cases of medical negligence reported to the Medical and Dental Council of Nigeria, compared with over 100 cases in the six-year span between 1999 and 2005. Laolu Osanyin, the Vice President of World Association for Medical Law and the Founder of Centre for Medical Law Research and Development, believes this can be attributed to globalization, and the Internet in particular. People who have families that have done certain procedures abroad and hear of people dying of said procedures here have started questioning doctors”.

Temitayo Olofinlua, “Medical Negligence in Nigeria [Part 2]: The Slow Road to Justice”.

It must be noted that the call for Pro Bono Services is not intended to unnecessarily witch-hunt Medical Practitioners by filing cases against them, but to bring all necessary stakeholders on board to ensure sanity in our Healthcare System.

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