Tortious Liability of Medical Practitioners in Nigeria: an Appraisal

Tortious Liability of Medical Practitioners in Nigeria: an Appraisal

Chapter One

Objectives of The Thesis

The aim of this research is to identify the categories of personnel involved in the practice of medicine in Nigeria and determine their tortious (civil) liabilities for malpractices committed in the course of carrying out their duties. In Nigeria, there is very little awareness that medical professional duties carry legal implications. This accounts for the fact that in Northern Nigeria, there have been little or no litigation arising from the activities of health care providers, such as physicians, dentists, nurses, among others. The aim of this thesis, therefore, is also to create awareness not only on the part of health care providers at all levels that they must have a clear appreciation of the basic legal responsibilities of neir jobs but also, on the part of health care recipients that they have a right of redress in law against any health care provider who perpetrates professional malpractice on them. The activities of medical professionals, positive or negative, do not only affect their employers vicariously, and themselves, but impact on third parties. Consequently, liability will arise both against the employer and the employee professional, in the event of breach of duty by the latter to act with reasonable care and diligence.

The tortious liabilities of medical practitioners in Nigeria will be discussed based on negligence and trespass. This of course will depend on the act or omission leading to the injury. To achieve this objective, there shall be a detailed analysis of the necessary applicable statutory laws, restatement of legal rules and analysis of cases in both the Nigerian and other jurisdictions where the principles of law are similar. It is hoped that at the end of this research there will be rise in awareness and literacy level and therefore there will certainly be rise in litigation and the like on medical cases in Nigeria, as it happens not only in the south, but worldwide.

CHAPTER TWO

NEGLIGENCE A3 THE BASIS OF LIABILITY OF MEDICAL PRACTITIONERS

Introduction:

This chapter shall discuss the nature of negligence of medical practitioners and, some instances of tortious medical malpractices properly analyzed. The civil or tortious liability of quacks and native doctors shall also be properly analyzed, with a view to making useful suggestions. Meanwhile, before the Chapter begins properly, a medical practitioner may be defined as anyone who holds out himself as a person who undertakes the cure or treatment of human ailments, or anyone who undertakes to provide health care delivery.

The Nature of Negligence of Medical

According to Alderson B., in Blyth v. Birmingham Water Works Company Co. (1856)¹ “Negligence is 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 do, or doing something which a prudent and reasonable man would not do.” Simply put therefore, “negligence is the breach of a legal duty to take care which results in damage, urdesired by the defendant to the plaintiff.”² Negligence in medical practice ordinarily implies that the medical practitioner had the consent of his patient to treat him, but such treatment did not conform with the standards imposed on the medical practitioner by law. An action in negligence involves three basic elements: (1) the nature of the duty that the law imposes on the medical practitioner; (2) the alleged conduct that constitutes the breach of that duty in the eyes of the law and; (3) the causal relationship between the breach of duty and the injuries of which the victim complains.

The courts generally regard the relationship between patients and medical practitioners as contractual³. When a patient presents himself to a medical practitioner for medical care, and the medical practitioner proceeds to render that care, the law implies that a contract has arisen between the parties. It is from this contractual relationship that the duty of the medical practitioner to his patient arises. In medical professional liability litigation, the trend has been for the patient to bring suit against the physician for alleged failure to use reasonable care and that action is usually in tort. According to Halsbury’s Law of England,⁴

A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered practitioner or not who does a patient, consult, owes him certain duties, namely, a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. The practitioner must bring to his task a reasonable degree of care. Neither the very highest, nor very low degree of care and competence judged, in the light of the particular circumstances of each case is what the law requires; a person is not, liable in negligence because someone else of greater skill and knowledge would have prescribed different way; not is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men.

The quotation above is a precise epitome of the essentials of the negligence of medical practitioners. This is a clear indication that a practitioner stands the risk of paying compensation at any time he acts below the standard required of a competent practitioner of his class, experience and circumstance Consequently, if a medical practitioner holds out himself as a good surgeon, he must measure up to the standard generally approved or acceptable in the field of surgery (not a specialist in a particular area of medicine), then he is accordingly expected to measure up to the generally acceptable standard for general practitioners⁶. Therefore, the standard is not constant; it is dynamic and changes in accordance with the area of specialization of each doctor. Differences in circumstances and facilities at the place of work may also affect the standard required in each case. Thus, more efficient medical services may be expected. in a modern well-equipped hospital than a village medical center.

Under this head, we shall consider proof of negligence in civil liabilities of medical practitioners and some instance of negligence (Civil liabilities) of medical practitioners.

CHAPTER THREE

TRESPASS AND CRIMINAL LIABILITIES OF MEDICAL PRACTITIONERS.

INTRODUCTION.

This chapter shall consider the liability of medical practitioners in trespass arising from treatment without consent of the patient. This therefore, will re quiere a thorough analysis of consent and its scope for purposes of medical practice as well as some good analysis of battery and assault. The second part of this chapter, shall be concerned with the liability of medical practitioners in crime, arising not from deliberate intentional acts, but from gross negligence in the performance of their duties. And lastly, the third phase of the chapter shall examine the liability of hospitals or establishment for medical malpractice.

Liability In Trespass

Trespass in this area of the Law, refers to trespass to the parson, precisely battery and assault. Trespass to the person means; direct and forcible interference with the person of another, without consent, express or implied. At Common Law, any medical practitioner who treats or carries out any professional activity on a patient without his consent, express or implied, such an act can give rise to assault. Consent is therefore central to the idea of medical practice and the doctor-patient relationship and in determining the liability of medical practitioners in battery let us first of all discuss the concept of consent as it affects the practice of medicine.

CHAPTER FOUR

DEFENCES AND REMEDIES FOR MEDICAL PRACTIONERS LIABILITY

Defences:

In medical professional liability, cases or suits, the burden of proving legal liability of the medical practitioner rests upon the patient. This means that the evidence presented by the patient must be convincing than that presented by the physician. The Physician is presumed to be free from liability until the contrary is proved. The patient must sustain the burden of proof with respect to the essential allegations of his claims against the medical practitioner. If he charges the practitioner with professional negligence, for example he has the burden of establishing the standard of care applicable to the physician, and of proving the practitioner’s failure to conform to that standard of care². Secondly, if the patient alleges technical assault and battery by alleging that the doctor operated on him or treated him without his consent, then he has to prove that he did not consent and the circumstance did not call for emergency treatment³. Even where the patient-plaintiff has discharged himseif of the necessary burden of proof, the medical practitioner may still not be liable in medical mishap if it can be shown and successfully pleaded that the medical practitioner has a defence to his claim It is some of these defences that we are going to consider under this sub-heading.

CHAPTER FIVE

SUMMARY AND CONCLUSION

SUMMARY

Negligence As the Basis of Liability of Medical Practitioners.

Negligence was defined by Alderson B. in Blyth v. Birmingham Water Works Co. (1856)¹ 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.” Simply put therefore, negligence is the breach of a legal duty to take care, which results in damage undesired by the defendant to the plaintiff². Malpractice ordinarily, therefore, implies that the medical practitioner had the consent of his patient to treat him, but such treatment did not conform with the standards imposed on the medical practitioner by law. In medical professional liability litigation, the trend has been for the patient to bring suit against the physician for alleged failure to use reasonable care and that action is usually in tort. In effect, therefore, the medical practitioner stands to pay compensation at anytime he acts below the standard required of a competent practitioner of his class, experience and circumstance³. This standard is not constant, it is dynamic and changes in accordance with the area of specialization of each doctor. Differences in circumstances and facilities at the place of work may also affect the standard required in each case thus, a more efficient medical services may be expected in a modern well-equipped hospital than a village medical center.

For liability to arise under this head, the alleged negligence has to be proven. And the quantum of proof is a preponderance of probability. The plaintiff has to adduce evidence to show that the medical practitioner was negligent. Generally, in medical malpractice cases, it may be difficult for the patient plaintiff to prove negligence because he may not know what happened. In view of this difficulty of direct proof of fault and of the causal nexus between the fault and injury, the court may allow the plaintiff to rely on the doctrine of Res Ipsa loquitur⁴. What this implies is that the burden of proof will be shifted from the plaintiff to the defendant.

Trespass And Criminal Liability of Medical

Trespass in this area of the law refers to trespass to the person, precisely assault and Trespass to the person means direct and forcible interference with the person of another, without consent express or implied At Common Law, any medical practitioner who treats or carries out any professional activity on a patient without his consent express or implied, such an act can give rise to a cause of action in battery and /or assault. Consent is therefore central to the idea of medical practice and to the doctor – patient relationship and in determining the liability of medical practitioners in battery and assault.

The physician has no right to examine or treat a patient without his consent. The consent that is in issue here, is not the consent as a constitutive element for the conclusion of the contract with the medical practitioner but consent as a condition precedent to and justification for the legality of the physician’s intervention. This principle applies in Nigeria as well as other countries with variations in its technical formulation. This rule is subject to the exception that in an emergency if it is impossible or impracticable to obtain the patients consent or the consent of anyone authorized to assume such responsibility, in which case, the law implies consent⁵. In conformity therefore with medico-legal ethics⁶, the medical practitioner is under an obligation to treat without consent, especially when the patient’s condition is such as to imperil his life. Although the Physician has no right to take action by force or by misleading the patient.

The Nature of the consent required to satisfy the requirement of medico-legal ethics is informed consent. Informed consent simply means that a patient who is matured and who is able to take decisions based on sound reasoning must be fully and sufficiently informed about the purpose, nature and the implications of the medical treatment to be administered on him, including the risk involved, so that he may choose whether to go in for it or not. For consent to be valid, the person who gave the consent must have had the requisite capacity to do so, the consent must have been given based on knowledge of what is to be done and the repercussion, and finally if an operation or treatment entirely different from that contemplated becomes necessary, the need, for fresh consent will arise.

Failure to obtain valid consent, any unauthorized treatment or oper ati on , will give rise to an action in assault, battery and crime.

Defences and Remedies For Medical Practitioners Liability.

Defences

In Medical Professional Liability Suits, the burden of proving medical liability of the medical practitioner rests upon the patient⁸. This means that the evidence presented by the patient must be more convincing than that presented by the physician. The physician is presumed to be free from liability until the contrary is proved. The patient must sustain the burden of proof with respect to the essential allegations of his claim against the medical practitioner. If he charges the practitioner with professional negligence, for example, he has the burden of establishing the standard of care applicable to the physician, and of proving the practitioner’s failure to conform to that standard of care⁹. Secondly, if the patient alleges technical assault and battery by alleging that the doctor operated on him or treated him without his consent, then he has to prove that he did not consent and that the circumstances did not call for emergency treatment¹⁰. Even where the patient plaintiff has discharged himself of the necessary burden of proof, the medical practitioner may still not be liable in medical mishap if it can be shown and successfully pleaded that the medical practitioner has a defence to his act. Some of these defences are contributory negligence, voluntary assumption of risk, statute of limitation and special defences for the injuries sustained and in order to arrive at the amount and the nature of damages that the plaintiff-patient is entitled to, it is necessary to know whether the damages are for personal injuries or for death.

Damages are the pecuniary or monetary compensation that may be recovered in a law suit for breach of some duty or the violation of some right recognized by the law¹¹.

Recommendation.

It was found in chapter two that in Nigeria there are rampant cases of poor diagnosis, leading to death and aggravation of illnesses, but the victims hardly realize them and even when they do realize them they no not litigate. This is so because most patients are poor and cannot cope with the heavy cost of litigation and other especially the Muslims from the Northern part who believe that every mishap is as a result of the will of God, which no human being can stand to It is recommended that victims of medical negligence should always go to court to vindicate their rights if they have the means to pay legal cost. Or they could approach the Legal Aid Council and Other; Non-Governmental Associations such as Network for Justice, among others; for legal assistance especially the poor victims. This will shape the conduct of the unruly health care deliverers.
It was also observed in chapter two that even when some victims of medical mishap file their suits, they end up failing in the courts because of failure to conduct post-mortem examination. It is therefore recommended that the plaintiffs should always seek for post-Mortem to be conducted, or proper tests must be ordered to be conducted to categorically ascertain the causes of the injuries or death. This will reduce the cost of litigation, expedite cases in court and also enhance the successes of the complainants.
It is recommended that hospital managements should organize short training courses in law of torts, to educate medical practitioners on the legal responsibilities towards their patients. This will minimize malpractice suits and their attendant huge financial costs and redeem the image of the health care providers.
It is also recommended that where an employee performs his duties recklessly, leading to damages, the employers should also ensure that appropriate disciplinary measures are taken against them. From the findings in our questionnaire, the issue of drug mal-administraticn is a common phenomenon amongst medical practitioners in It is therefore recommended that, in order to curb such a malpractice, professional bodies should have an input, with a view to taking disciplinary actions gainst professionals who exhibit or are found to have exhibited such unpardonable levels of in-discipline and negligence.

It has been observed in Chapter two that, injuries arising from x-rays therapy are common in Nigeria, but because of ignorance and illiteracy, victims hardly notice the injuries and even when they do, they hardly have the means to consult specialists to ascertain the cause. Awareness programmes are therefore recommended in order to educate potential patients of x-ray therapy on their rights.
It was also observed in Chapter two that surgical mishap is a common phenomenon of medical negligence in Nigeria, leading to numerous surgical deaths. Investigation from Questionnaires has revealed that a wide range of problems including poor or absent documentation, deficiency in essential services, surgeons operating outside their specialty and the use of poorly-trained and supervised locum are causes of surgical deaths. It is therefore recommended that hospital managements should improve on the available surgical facilities, obtain modern surgical instruments, employ well-trained staff and specialists and retrain them periodically, in order to enhance efficiency and minimize the rate of surgical mishaps.

It is also recommended that, in view of the fact that the consequences of poor blood transfusions could be fatal, medical practitioners and hospitals are advised to be very careful in selecting competent and vveli-qualified laboratory technicians. This will avoid or minimize the rampant suits in negligence arising from blood transfusions.
It was observed in Chapter three that it is mandatory for any medical practitioner to disclosed all facts relating to an operation or treatment to a patient in order to enable the patient give a valid consent. It is submitted that a reasonable man would hesitate to undergo or undertake hazardous treatment and therefore, unless therapeutic reasons contra-indicate, doctors are advised to always make simple, quiet but honest disclosure commensurate with the risks in all cases and let the patients those what risk or risks to run with their bodies. Where, for therapeutic reasons, it is medically and legally unethical to inform the patient of the risks or dangers involved in the treatment or operation, a responsible relative of the patient should be informed on the patient’s behalf and obtain his or her informed Besides informing the patient or his responsible relation of the risks or hazards involved in an operation or treatment, it should always be insisted that a consent in writing in which the patient or someone else on his behalf acknowledges this explanation. This will reduce malpractice suits.

It was observed in chapter four that there is striking absence of Nigerian cases on the defence of voluntary assumption of risk because of the following reasons:

Firstly high illiteracy level, especially in the Northern part of Nigeria makes patients to be ignorant of their rights to sue when medical malpractice is committed on them.

Secondly, religious belief and poverty have also militated against the patients desire to bring actions against medical practitioners for medical mishaps. The population should, therefore, through the mass media, churches and mosques be educated that it is a religious, social and legal right to sue for medical mishap. The government should also allocate funds to the Legal Aid Councils to assist victims of medical mishaps who because of poverty cannot initiate legal proceedings to vindicate their rights against negligent medical practitioners.

It was observe is chapter four that any professional mishap on the part of the medical practitioner may give rise to very colossal financial The cost implication may have a negative effect on the volume of medical practice likely to be carried out. This will have a negative effect on the supply of medical practitioners. In view of the fact that the ratio of doctor-patient is very low compared to our contemporary need, it is recommended that medical practitioner should be very careful in handling the treatment and operation of patients and also take up third-party insurance policy. This will reduce their costs of medical practice in the event of a likely professional mishap.

Notes And References:

Winfield and Jolowicz On Torts, W.V.H. Rogers, Sweet And Maxwel London, 1975, P.5.
Umerah C. Op. Cit P, 124.
John Cooke Cit. P. 161.
Crawford Morris And Alan R. Moritz, Op. 147
See French Decree 55-1591 of 28^th November, 1955.
See Ball v. Mallinkrodt Chemical Works Supra
Watterson Dunnington 241 Mich. 383 217 N.W. 329 (1928).
Ballance Dunnington 241 Mich. 382 217 (1929).
See State to the use of Janney Housekeeper 7 Md. 162, 16A(1889)
Crawford Morris R. and Alan Moritz R. Op. Cit. P. 465

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