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INTRODUCTION

In 2021, the Medical and Dental Practitioners Council of Nigeria (
MDPCN) filed a case against three doctors of Premier Hospital in Lagos. The case bordered on professional misconduct which resulted in the untimely death of Chef Peju Ogboma who died after undergoing a series of treatments and surgery at the hospital.[1] Unfortunately, this case is simply one out of the numerous cases of medical negligence in Nigeria. This article will attempt at giving a thorough definition of medical negligence and what it encompasses especially in the Nigerian legal field and prescribe available remedies to aggrieved parties.

NEGLIGENCE

The Black’s Law Dictionary defines negligence as,

“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.”

Negligence is often considered as a breach of duty. Such duty being classified as a ‘duty to use care’.[2] Therefore, it follows that the elements needed to prove negligence are,

• The existence of a duty on the part of the defendant to protect the plaintiff from the injury complained[3]
• A breach of that duty[4], and
• An injury to the plaintiff as a result of the defendants breach of duty[5]

It should be noted that in legal terminology, negligence is otherwise referred to as ‘culpable carelessness’.

Medical Negligence

Medical negligence occurs when a medical professional metes out substantial treatment to a patient that results in harm, injury, or loss of life to the patient.[6] Negligence becomes medical negligence where the medical practitioner fails in exhibiting the required standard of skill of a medical professional which in turn causes injury to the patient.[7] This can occur when he fails to attend promptly to a patient requiring emergency care, when he prescribes incorrect medication, or even when he acts without requisite informed consent.

How can one prove medical negligence?

In all instances, however, the onus of proving medical negligence falls on the patient (or if dead- their family) and such patient is required by law to establish that there was,

• A duty of care[8]
• A breach of said duty[9], and
• An injury to the plaintiff as a result of the defendant’s breach of duty.[10]

It is important to note that it isn’t in all cases where medical negligence will be culpable, especially where an injury that resulted from such negligence cannot be proved.[11] For instance, where a healthcare professional makes use of inappropriate or unorthodox treatments but the patient is not harmed, a negligence case will not succeed. It is therefore imperative in proving medical negligence that there is evidence of injury emanating from negligence.

In addition, a medical practitioner can only be held liable for negligence where the negligence is so glaring and falls short of the standard of care expected of a reasonably skillful man.[12] Therefore, a medical doctor is expected by law to act in compliance with the standard expected of a responsible body of medically skilled men in the art of medicine. Unfortunately, if it can be proved that the doctor complied with such standard he cannot be held liable for negligence even if the patient suffered any harm. For instance, in the case of Abi v Central Bank of Nigeria[13], the defendant (a medical doctor) was found to not be liable as he had exercised the ‘ordinary skill of an ordinary competent man professing to have that special skill’. This is because doctors and medical professionals are not gods and can only be expected to exercise the reasonable duty of care expected of a skilled professional. It then becomes necessary to distinguish between a medical mistake which is excusable in law and that which will constitute negligence.

For the most part, the courts will excuse certain medical mistakes because it accepts that ordinary human fallibility precludes liability.[14] However, a mistake will constitute negligence if and only when the defendant acts in a manner not expected of a reasonably skillful or competent doctor.

Medical Error vs Medical Negligence; Which is Enforceable?

A medical error is said to occur when a medical practitioner chooses an inappropriate or unorthodox method of care or when a medical practitioner uses an appropriate method of care in an improper manner.[15] A medical error is classified as an omission or commission with potentially negative consequences.[16]

Flowing from the above definition, there exist a meticulously thin line between medical error and medical negligence, which is an existence of ‘injury’. Therefore, a claim of medical negligence that is hinged solely on medical error will most likely fail in court. However, while an aggrieved claimant cannot claim damages under medical negligence, such a person has alternative options of redress such as violation of human rights, lack of informed consent, amongst others. These alternative options of redress shall now be highlighted and discussed.

ALTERNATIVE OPTIONS OF REDRESS AVAILABLE TO AN AGGRIEVED PATIENT

• Breach of implied contractual agreement
• Violation of human rights
• Lack of informed consent

Breach of Implied Contractual Agreement

Where a patient has suffered some form of damage or injury in the course of treatment, such a person may bring an action for breach of contract. This is especially favorable in cases where negligence cannot be proved. This contract functions as an implied one that stems from a doctor patient relationship, as it is implied that the doctor will exercise reasonable skill and care in the treatment of patients.[17] Therefore, the law assumes that by the mere treatment of a patient by a doctor that parades himself as having the requisite skills to treat such patient- a contract has been created.

To succeed in an action for breach of contract, the patient needs to prove the following,

• The existence of a doctor-patient relationship[18]
• Breach of the implied/express term of the contract to treat,[19] and
• An injury arising from or on the course of treatment.[20]

Violation of human rights

Liability for medical error may also arise as a breach of a patient’s human right. Therefore, what this means is that medical practitioners should uphold and respect a patients human rights during the course of treatment.[21] For instance, a patient’s autonomy should be respected and patients have the right to make final and conclusive decisions about what may happen in and to their body; a doctor or medical practitioner can only afford their medical advice. The right to personal liberty and self-determination may be used to show a patients right to autonomy.

Further, the right to health encompasses the right to freely make decisions concerning one’s health and also the right to have access to information pertaining to one’s health and available treatment options.[22] Where there exist a failure to communicate all treatment options, this would give rise to liability for negligence and breach of the patients’ right to health.

Section 23 of the National Health Act, provides that a patient has the right to be informed of his health status, treatment options available and their health benefits or potential risks.[23] A patient under this Act also has the right to refuse treatment.[24] In the case of Medical and Dental Practitioners Disciplinary Tribunal v Dr. John Emewulu Nicholas Okonkwo[25], the court emphasized the supremacy of patient’s autonomy, which means that a patient has the right to refuse treatment. However, such right should only be enforced after the patient has been given detailed information of the consequences of their decision and a ‘discharge against medical advice form’ has been signed and issued to the patient- only then can the patient be said to have enjoyed their autonomy to the fullest. Now it is important to note that while failure to allow a patient refuse treatment makes a medical practitioner liable for violation of human rights, allowing a patient to refuse treatment after giving him thorough medical advice and a signed discharge against medical advice form, evades the medical practitioner from liability for any harm such decision may cause the patient.

Lack of Informed Consent

Lack of informed consent has the ability to justify a claim of medical negligence or function as an alternative redress when the case is otherwise weak. It is no secret that most medical procedures have some degree of risk and consequential side effects. However, there is an implied duty on doctors and medical professionals in general to get informed consent from patients before carrying out any medical procedure. Where there is no informed consent, a patient injured during the procedure may be able to sue the doctor for malpractice, even if the injury was a standard (presumably known) risk associated with the procedure.

Informed consent is necessary to ensure that a patient has the freedom to make their own independent and well-informed decisions. However, while doctors should obtain a patients informed consent before performing any procedures, courts have noted that a doctor may not and cannot be reasonably expected to disclose every possible risk associated with that treatment or procedure.[26] Therefore there exists a standard for informed consent, used by the courts to determine if a defendant should have informed the plaintiff of the specific risk that injured them;

• Whether a competent doctor would have informed the patient of the risk[27]
• Whether a reasonable patient in the plaintiff’s position would have chosen not to undergo the procedure or treatment if they were informed of the risk. [28]

It is sufficient that only one of the two be proved.

However, a noteworthy exception to the need for informed consent is during emergencies. This is because when there is an emergency, a doctor may not have enough time to go over the potential risks of the treatments with the patients without furthering the plight of the patient. Their duty in such circumstances is solely to act in order to save life.

For instance, within the Nigerian legal framework, all hospitals are required by law to treat victims of gunshots under the Compulsory Treatment and care for Victims of Gunshot Act 2017. What this means essentially is that any hospital in Nigeria, both public and private, shall receive and immediately treat a gunshot victim even without any form of monetary deposit.[29] Failure to do so would render the hospital and its agents criminally liable.

CONCLUSION

Medical negligence is rampant in Nigeria and often goes unchecked not only because of the many defenses and exemptions afforded medical practitioners but also because there is a lack of awareness, on the part of the average lay man, on the various alternative redress at his disposal. This article has explained what medical negligence is and its scope and has prescribed alternative redress options for citizens where a claim for medical negligence will fail in court.

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[1] Adelagun, O. “Peju Ugboma: Premier hospital doctor, accused of misconduct, testifies,” Premium Times, 14 March 2022.

[2] Terry, H.T., 1915. Negligence. Harv. L. Rev., 29, p.40.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] MOMODU, D.A.U.D.A. and OSENI,, O.S.E.N.I. (2019) “Medical Duty of Care: A Medico-legal analysis of medical negligence in Nigeria,” American International Journal of Contemporary Research, 9(1). Available at: https://doi.org/10.30845/aijcr.v9n1p7.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] M. R. Denning, The Discipline of Law (London: Oxford University Press, 2013),pp. 237, 242 – 243.

[13] (2011)LCN/4597(CA).

[14] Merry, A.F. (2009) “How does the law recognize and deal with medical errors?” Journal of the Royal Society of Medicine, 102(7), pp. 265–271. Available at: https://doi.org/10.1258/jrsm.2009.09k029.

[15] Adejumo, O.A. and Adejumo, O.A. (2020) “Legal perspectives on liability for medical negligence and malpractices in Nigeria,” Pan African Medical Journal, 35. Available at: https://doi.org/10.11604/pamj.2020.35.44.16651.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Chapter 2 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

[23] Section 23 of the National Health Act, 2014.

[24] Ibid.

[25] (2001) 3 SC 76.

[26] Murray, B. (2012) “Informed consent: What must A physician disclose to a patient?” AMA Journal of Ethics, 14(7), pp. 563–566. Available at: https://doi.org/10.1001/virtualmentor.2012.14.7.hlaw1-1207.

[27] Ibid.

[28] Ibid.

[29] Mustapha, A.G. (2018) “Compulsory treatment and care for victims of Gunshot Act 2017; an appraisal,” SSRN Electronic Journal [Preprint]. Available at: https://doi.org/10.2139/ssrn.3117564.