An Appraisal on Medical Negligence in Nigeria: A Case Study of UNTH, Enugu
Chapter One
Objectives of the Study
The objective of this study is to give an appraisal on medical negligence in Nigeria by using University of Nigeria Teaching Hospital, Enugu as a case study. However, the specific objectives are:
- To understand the different forms of medical negligence among medical practitioners
- To examine the consequences of medical negligence by medical practitioners
- To study the different damages awarded to medical negligence
CHAPTER TWO
LITERATURE REVIEW
INTRODUCTION
Generally, professional medical negligence or malpractice has been on the rapid increase and needs to be addressed in terms of the attitude of law towards medical practice for the protection of the patient to make the physician liable as well as to secure punishment for any medical practitioner who through carelessness causes harm to a patient. Moreover there is the need to caution medical practitioners who have sent manypatients to their untimely graves in the course of their professional duties. It would in addition aid to restore people’s confidence in the medical profession. Increasingly, there is the need for patients to be protected from medical practitioners who no longer see their professional calling principally as that of saving lives but as that of making money. The need for the protection of patients is not new. Inadvanced countries, precaution has been taken through legislation and through hincreased reliance on court action both of which ensure that negligent medical practitioners are made to pay damages to affected patients.[1]
Negligence is the breach of duty of care to a person and such breach leads to injury to the person to whom the duty was owed. Medical negligence can be defined as improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist or other health care professional. It is important to note that whilst medical negligence is generally used in reference to doctors, other health care providers such as nurses, pharmacists, laboratory attendants and any other health care provider can be liable for medical negligence. Medical negligence means the failure, on the part of a medical practitioner or any certified health care provider to exercise a reasonable degree of skill and care in the treatment of a patient, such that if a doctor treats a patient in a negligent manner causing harm or worsening the existing health condition, the patient can bring an action on negligence against the doctor claiming damages for the harmsuffered[2]. This arises only in the event of negligence especially on the part of the medical professional, who does not take sufficient care in treating his patients.
For there to be an event of medical negligence, there are some ingredients and they are:
- The existence of a duty of care
- Failure to exercise such duty of care by the medical practitioner
- Resultant injury to the patient as a result of the breach of duty
This means that the doctor owes the patient a reasonable standard of care to make sure that the right treatment is given. If the medical practitioner then defaults in this mode of duty of care, he is still not liable to medical negligence claim except when such patient that is treated has an adverse effect to the treatment given to him by the medical practitioner. A scenario to further explain this better is when a patient who goes to the doctor for a leg injury (right leg) which is causing him very much discomfort, is treated halfheartedly by the doctor and in the end, the patient later ended up with more discomfort in both legs or the leg gets amputated while the injury would have been treated without no cause of amputation.
In determining whether, there has been negligence in the treatment, the court will ascertain the standard of skill expected from the practitioner in the medical context against the customary practice. The court has addressed the standard of doctors in a number of decisions. One of the earlier statements on the professional standard of doctors was delivered by Lord President- Clyde in the retrial of the medical negligence claim in the Scottish case of Hunter v Hanley[3]; The plaintiff who had suffered injury as a result of the breaking of a hypodermic needle while she was receiving an injection alleged that the accident had been caused by the standard of care and competence which it was its duty to display in giving the injection. Where, the court established a 3 fold test to establish deviation from the customary practice and it stated that;
- It must be proved that there is a usual and normal practice
- It must be proved that the defendant has not adopted the practice
- It must be established that the course which the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.
Medical negligence constitutes an act or omission by a medical practitioner which falls below the accepted standard of care resulting to injury or death of the patient. The case established a general duty to take reasonable care to avoid foreseeable injury to another. A duty of care is necessarily implied when a patient is registered and being treated in a hospital. The view has been expressed that, care of medical practitioners ought not to be limited only to the patients under their direct management but to be extended to any patient whom they come across in their professional environment and 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.
CHAPTER THREE
CAUSATION
Causation is a formidable hurdle for plaintiffs in medical negligence litigation as there are great uncertainties in the medical world regarding the causes of many adverse conditions. This means in trying to proving the negligence, causation in not east to prove as nothing in the medical is certain for sure. In the Nigerian context, injured patients find it very difficult to obtain expert witnesses. If the doctor or hospital can raise question as to causation, the patient often is in no position effectively to challenge them. The basic principles in negligence litigation, the plaintiff much establish not merely that the defendant owed and breached a duty of care to the plaintiff but also that such breach caused “materially contributed to” or increased the risk of the injury of which of the plaintiff complains. This, in that broad sense, a causal connection must be established between the tortuous act of the defendant and damage which the plaintiff suffered. The importance of causation in negligence cases has been captured by the Court in the case of A.N.T.S v. Moloye[1],in the following words:
CHAPTER FOUR
SPECIFIC ASPECT OF MEDICAL NEGLIGENCE
In recent times, there has been an increase in reports of medical negligence in Nigeria, principally attributed to a lack of sufficient medical practitioners and infrastructure in the health sector. However, despite the alarming number of victims, there has been a low level of formal complaints or even lawsuits for compensation, due to ignorance, poverty and in some cases, reluctance to seek redress against the offending medical practitioner. It has been observed in other countries, that the quality of medical practice and care for patients is higher where there is a sense of accountability required from medical practitioners, as such, it will be useful to consider the legal position in Nigeria concerning actions for negligence against medical practitioners in the discharge of their duties.[1]
CHAPTER FIVE
CONCLUSION AND RECOMMENDATION
SUMMARY
Medical negligence is a tortuous act that is found to arise from the fiduciary relationship existing between the doctor or care giver and a patient. This fiduciary relationship stems from the duty of care and confidence that the medical profession like most other professions, is built on. A breach of the duty arising from this relationship by the doctor who is the fiduciary, exposes the doctor to liability for criminal breach of duty of care, a civil action either in tort or contract, and finally, exposes him to liability for professional misconduct by the Medical and Dental Practitioners Disciplinary Tribunal. In a civil action for medical negligence, it was also found that the hospital or the doctor is the proper defendant and the patient or his representative is the proper plaintiff. Various acts of a doctor may give rise to an action in medical negligence. This work considered a number of such acts that have been held to have amounted to medical negligence by both Nigerian and foreign Courts. These acts include inter alia, the retention of objects in operation sites; failure to attend and or give prompt attention; incorrect diagnosis; failure of communication; incompetent assessment of a patient; failure to take full medical history; errors in treating patients; improper administration of injection; and failure to get the consent of the patient. The list of the acts that may amount to medical negligence as discussed in this work, is not exhaustive; all that the law requires is that whatever act is complained against, the act must meet the criteria of the law on the necessary ingredients of the tort of negligence. Also, it was established that a plaintiff in an action for medical negligence must proof three necessary ingredients of the tort to it; that the defendant owed him a duty of care, that the defendant breached this duty of care, and that the breach occasioned the injury suffered by the plaintiff. These ingredients must be established concurrently and failure to proof any of the ingredients leads to the failure of the case of the plaintiff.On the duty of care, it was found that by the nature of the relationship between the doctor and the patient, and also arising from the “neighbour” principle, the doctor owes the patient a duty of care which duty he must not breach. The standard of care required of the doctor is generally that degree of care which a reasonable person should exercise in same or similar circumstances. A doctor will be said to have acted within the scope of this duty if he acts towards the patient, as any reasonable doctor in his position and within the same circumstance will act. The next ingredient of medical negligence as seen in this work is that it must be shown that the doctor breached his duty of care. This breach occurs where the doctor or the hospital fails in its duty of care owed to the patient, as required by law. It was found to be trite law, that for a doctor to held liable for breach of duty of care, he must be found to have acted below the standard of care expected of him in the particular circumstance, and the test for determining whether or not there is a breach of duty is an objective test of what the reasonable doctor in those circumstance will do. The final ingredient which must be proved is that the breach of duty of the doctor or health care giver was the cause of the injury of the patient. In order to succeed in proving this ingredient, the plaintiff must also show that the breach of the doctor was the direct cause of the injury and that the breach was not too remote the cause of the doctor’s breach. The principle of causation and remoteness of damage best explains this rule and they were held to be applicable under Nigerian law.
The distinction has to be made between medical mistake which is excusable in law and mistake which will constitute negligence. In medical mistake, the law regards as excusable this is because the court accepts that ordinary human fallibility preclude liability, while in mistake that constitutes negligence, the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably skillful or competent doctor. The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent. It should be noted that gross mistake is always treated as medical negligence.
RECOMMENDATIONS AND CONCLUSION
In order to eliminate or minimize this ugly situation, patients should not hesitate to sue negligent health care providers. Hospitals should also employ only qualified health practitioners in order to improve healthcare delivery. The law should provide stiffer punishment for gross negligence so as to deter quacks from toying with lives of the vulnerable who consult them for medical treatment. Such a step would promote a better and safer health care delivery system in Nigeria. The health care stakeholders and policy makers should put in place legal and legislative measures to curb this menace while clinicians for the sake of obligation should ensure that they maintain the highest standard of patients care in their practice. There is a need to emphasize early medical ethics training for health care professional at the undergraduate level as well as promoting and organizing workshops to constantly keep them well-informed. The public from time-to-time should be encouraged to report any case of suspected negligence and medical errors in order to have documented evidence on the rate of occurrence. This in turn will help the health policy makers and medical regulatory body (NMDC) to understand the extent of the health problem and finding out the best method to reduce the rate of occurrence in the health care sector. Other recommendations are as follows:
- Nigeria should, like the United States of America, adopt a no-fault system in medical negligence cases as this will reduce the enormous burden of proof on the plaintiff. This is in the light of the established difficulty of proving the physician’s fault in Court actions. In the alternative, the burden of proof in medical negligence cases can be shifted to the defendant to show that he was not negligent in treating the patient. This will go a long way in solving the problems attached to the proof of medical negligence.
- On the problem of expert evidence, the Nigerian Medical Association should be encouraged not to clamp down on any of its members who testifies for victims (this is referred to as bottleneck syndrome among the medical profession) against a Medical doctor. This will encourage high standard practice among medical practitioners and will help eliminate the “conspiracy of silence” among medical doctors in actions against their colleague[1].
- Law requires evidence and documentary evidence in the form of case papers and medical reports have to be meticulously prepared. The duty of the doctor is to treat the patient, however, it is also important to document the treatment given and at times the reason why such treatment has been given. Cases generally reach the Courts after several months and years of the occurrence of the injury and by that time, the only thing on which the parties can rely in the Court is the case file. The oral evidence of doctors and other staff also adds to the evidence, however, the documentary evidence always gets precedence, until and unless proved to be forged. It is also important to have transparency in the system and give a copy of all the papers, reports, films, etc. to the patient. In such a case the confidence of a patient in the hospital and its system increases. This will also increase the evidence at the disposal of the patient should there be a breach of duty by the doctor and subsequent litigation[2].
- In the United Kingdom and the United States of America, there is the compulsory insurance policy, which every hospital should subscribe to in the event that there is medical negligence so that the hospital may be indemnified in such a situation. This scheme in Nigeria will promote settlement procedure in medical negligence and the victims would thereby be compensated for the negligence of the hospital or the doctor[3]. Such a scheme if put in place may render unnecessary, litigation in Court for damages. This is in view of the low amounts Nigerian Courts usually award to successful litigants and the difficulty in recovering this awards from the judgement debtors.
- Medical law as a course of study for lawyers should be introduced at the undergraduate level so that lawyers are properly equipped to handle technical issues involved in medical negligence cases. Lawyers should also pursue specialising in this area of the law. It is strongly believed that if lawyers are well equipped to handle medical negligence cases, it will improve the lot of litigants in this area of law.
- There should be more awareness on the rights of patients where they suffer any injury as a result of the negligence of their doctors or health care givers. They should be properly educated as to their remedies available to them in the case of this breaches.[4] Doctors should also be enlightened on the nature of their duties and the implication of these duties. As it stands now, most of the education doctor’s receive with respect to medical negligence cases is on how to avoid or hide their liability, also known as defensive medicine. This has neither assisted in their giving the right attention to their patient nor provide the right assistance to a patient as expert witnesses.
While there have been some progress in the health care system in Nigeria over the years, there is still a long way to go before the health care system is set to achieve the required world standards. The health care system in Nigeria is still below the standard and medical practitioners are still not performing their duties as required by law. It has been established in legislations and case laws that Medical practitioners are obliged to act reasonably in the performance of their duties and if they fail to do so, they are liable for medical negligence. A patient can institute an action in court where his/her right to health care guaranteed under the Constitution has been breached and remedy may also arise from such breach.
To conclude, private and public hospitals must be effectively monitored to the effect that medical certifying bodies must provide or show that the recipient of such certification have proven or demonstrated integrity, competence, and professionalism in the medical profession. Effective monitoring must be in place to routinely and consistently observe medical inventories of public and private hospitals. Human right advocacy groups should be more proactive in this case, in helping patients with the litigation process which is usually expensive, time and resource consuming.Professor Oluwatelure a consultant clinical psychologist of the department of Psychology,AdekunleAjasin University, Ondo State, suggested that it will be necessary to encourage managers of the health care delivery system in African countries to increase education by organizing public lectures and workshops on the role that families, caregivers, custodians and the general public, need to play to reduce this escapable, needless and preventable occurrence. Enlightenment programmers are needed at various levels of the society to reduce the level of ignorance, and to foster necessary confidence to engage doctors and nurses with questions as to better understanding the reasons for any medical intervention, if medical practitioners are of the opinion that there every procedure will be met with questions from the knowledgeable patients or care givers, there will be less room for negligence and quackery[5].
REFERENCES
- Ali, Y. O., “Damages for Medical Practice: Nigeria as a Case Study”- http://www.yusufali.net/articles/damages_for_medical_practice_nigeria_as_a_case_study.pdf- assessed on 5th March 2015
- Bayero-Jimohet al: Physicians and Wrong Diagnosis of Patients: An Assessment of Legal Duties and Liabilities in Nigeria
- Causation in Medical Negligence Cases Peter M. Willcock and James M. Lepp, Q.C.
- Duty of care and medical negligence | BJA Education | Oxford Academic
- Examining the Growing Trends of Medical Negligence in Nigeria; A Menace that must be Curbed written By: EwauduOnya (Esq)
- https://academic.oup.com/bjaed/article/11/4/124/266921 5/8
- Judicial Recognition and Adoption of Customary Law in Nigeria Author(s): Derek Asiedu-Akrofi Source: The American Journal of Comparative Law , Summer, 1989, Vol. 37, No. 3 (Summer, 1989), pp. 571-593
- Legal Implications of Ethical Breaches in Medical Practice: Nigeria a Case Study,BabalolaAbegundeEsq, Lecturer, And Legal Practitioner, Faculty Of Law,,Ekiti State University, Ado-Ekiti, Nigeria.,
- Legal perspectives on liability for medical negligence and malpractices in Nigeria by OludamilolaAdebolaAdejumo
- Medical Negligence in Nigeria: A Quick Guide on Liabilities and Remedies, Miss. OgundareBisola
- Medical Negligence: Liability of Health Care Providers and Hospitals I. P. Enemo
- Medical Practiceand Negligence inNigeria: An Overview of Medical Negligence in Nigeria, M.O Izzi
