INTRODUCTION
Year in year out Nigerians are killed through medical negligence and carelessness of Medical care givers.
When ill health makes hospital visits necessary the doctors, nurses and all other professionals strive to make one get better but as these health care givers are human and are susceptible to human frailties they sometimes deviate from the accepted standard of care in medical community.
Negligence by a medical practitioner could include error in diagnosis, treatment or illness management and such resulting in injury to a patient.
STANDARD OF CARE
The standard of care is the measure of the duty owed by the health care professional to the patient; breach of duty is the health facility practitioner’s failure to meet the care stipulated in the standard of care. In medical litigation it is the unreasonable conduct of the defendant (usually a health care giver) towards the plaintiff or claimant as it is called in Lagos.
WHO IS A MEDICAL PRACTITIONER?
THE HEALTH PROFESSION In NIGERIA is regulated by a host of statutory lawsand ethical consideration and conventions.
The primary law regulating medical practice in Nigeria is the Medical Dental Practitioners Acts and the law saddled the responsibility for the regulation and maintenance of standards in medical practice on the Medical & Dental council of Nigeria.
The MDCN is established in 1963 by an Act of parliament, this Act was amended by Decree No.78 of 1992 now Cap M8, LFN, 2004.
The council is a body corporate with perpetual succession and a common seal.
Medicine is a highly skilled profession and practitioners have been revered in most cultures of the world. Several words have been coined to show this reverence e.g. healing hands, gifted hands e.t.c.
In the early days of Medical practice Medical mishaps are regarded as “Acts of God”, even to this day the motto of one of the Medical schools in Nigeria is “We care but God heals”
Be that as it may Practitioners of Medicine in Nigeria often feel they are beyond reproach or questioning; carrying on with the toga of a babalawo or dibia as if Medical Science is some arcane esoteric field which language can only be understood by a select few or initiate.
It is with this in mind that one will fully appreciate the work of the MDCN.
MANDATE OF THE MDCN
By virtue of S.I of the Medical and Dental Practitioners Act the mandates of the council include:
1. Regulation of training of Medical doctors and Dentists and alternative medical practice like acupuncture e.t.c.
2. Regulation of Medical, Dental and alternative Medicating Practice in Nigeria
3. Determination of the knowledge and skills of these professionals.
4. Regulations of the operation of clinical laboratory practice in the field of pathology.
The council performs its duty via a sixty one (61) member council aided by the various standing committees and staff of MDCN.
The position of chairman is non executive and the secretariat is headed by the Registrar who is an appointee of the council. The registrar is the secretary to the council and the disciplinary tribunal.
The council Secretariat has 8 (eight) departments which are:
1. Registrars Office
2. Administration Department
3. Medical Education Department
4. Registration Department
5. Professional Discipline Department
6. Planning Research and statistics
7. Accounts.
8. Audit
ELIGIBILITY TO PRACTICE MEDICINE/DENTISTRY IN NIGERIA
This is generally covered by S.8 of the Medical and Dental Practitioners Acts.
For a person to be eligible to practice medicine or dentistry in Nigeria, he must have:
a. Undergone and completed a course of training in an institution appropriately recognized or accredited by the Medical and Dental Council of Nigeria for that purpose.
b. Undergone a mandatory period of internship to acquire a certificate of experience
c. Been formally inducted into the profession.
d. Issued with an annual practicing license after paying annual practicing fee.
DOCTOR – PATIENT RELATIONSHIP
The underlying principle guiding doctor patient relationship is espoused in the Hippocratic Oath every Medical Practitioner must subscribe to upon graduation and formal induction to Medical/Dental practice.
Also, the tort of negligence whereby defendant’s liability results from a failure to act as a reasonable prudent person also regulates doctor/patient relationship. In the evaluation of a defendant’s liability several factors are considered including the doctor/health institution’s compliance with routine Medical Standard in that field of Medicine that came up for inquiry.
In sheri king and Anor V shell Petroleum Development Company and Anor.
One of the questions that came up for determination is whether the Attending Physician took the necessary precaution that routine standard in obstetrics practice dictate when dealing with an index pregnancy.
Another question that came up for determination is the acceptable standard of care in a pregnancy when doctor is scheduling a VBAC.
This case has since been settled out of Court and term of settlement includes a confidentiality clause.
But what must be noted here is that the standard of skill and knowledge required is that which is commonly possessed by member of that profession or trade in good standing. It is not that of the most highly skilled, nor is that of the average member of that profession or trade since those who have less than average or median skill could still be competent and qualified; liability flows from the physician’s failure to conform to the profession’s customary practice and no court of law has the discretion on to find that the standard is unreasonable. The standard is minimal competence.
ALTERNATIVE APPROACHES TO PRACTICE OF MEDICINE
There may be more than one accepted way to the practice of medicine and there will be no liability on the doctor if he follows one of the acceptable approaches it is instructive to note that the relative merits of the approach chosen is irrelevant.
What is relevant is whether there is an established custom supporting the method employed.
BURDEN OF PROOF IN MEDICAL NEGLIGENCE OR MALPRACTICE SUIT
To succeed in an action for Medical Malpractice the Plaintiff must show more than an unwanted result.
Expert witnessed are usually required to prove medical negligence however this is subject to the common knowledge exception rule and Res lpsa loquitor.
MEDICAL RIGHTS OF PATIENTS
Flowing from the Nigerian 1999 constitution some basic medical rights have crystallized.
RIGHT TO LIFE
Every person has a right to life and no one shall be intentionally deprived of his life save in the execution of the sentence of a court in respect of a criminal offence ofwhich he has been found guilty in Nigeria.
This constitutional provision is further reinforced by the tenets contained in the Hippocratic Oath doctors subscribed to.
Following this it is incumbent upon the medical care given to do anything and everything in his power to safeguard the life of the patient in his care.
One necessary question this has raised is the right to death of the patient. At the moment euthanasia is not encouraged in Nigeria Medical Practice. However the right to accept a given course of treatment (including a life saving one) is the patient’s prerogative.
This is illustrated in the Nigerian case of Medical and Dental practitioners Disciplinary Committee V Okonkwo. And in the British case of Marlette V Shulman.
The principles that can be distilled from the cases above are that a patient can refuseany course of treatment even beneficial ones if he is an adult, reaches such decision without any form of coercion or intimidation and he is of full mental capacity and if his decision is based on an informed choice.
Other rights include the right to dignity; privacy and confidentiality but this right to confidentiality is of a lesser scope than the one imposed by an attorney/client relationship as a court of law may compel a doctor to disclose aspects or all of his patient’s information.
FUNDAMENTAL RIGHTS OF PATIENTS AN ENUNCIATED BY THE NIGERIAN MEDICAL ASSOCIATION (NMA)
1. Right to receive treatment without discrimination on any basis whatsoever including but not limited to race, color, religion, sex, tribal origin, source of payment or ability to pay.
2. Right to considerate and respectful care in a clean and safe environment devoid of unnecessary restraint.
3. Right to emergency care inappropriate circumstance.
4. Right to necessary information regarding the name and status of the doctor in charge of patient’s care.
5. Right to receive itemized bill and appropriate explanation of all charges including the right to receive receipts of al payments at each visit the hospital.
6. Right to complete information regarding the diagnosis treatment and prognosis of the patient’s condition without prejudice to the therapeutic privilege of doctors.
7. Right to be given all necessary information to enable informed consent for any proposed procedure or treatment.
8. Right to privacy while in the hospital or clinic and confidentiality of all patient information records.
9. Right to participation in all decision concerning treatment and discharge from thehospital.
PATIENT RESONSIBILITY
For every right enjoyed their is also the question of responsibility for those rights.
• Patients are enjoined to disclose to their care givers their complete medical history.
• They are also enjoined to cooperate with their care givers by taking prescribed medication and rest as they maybe prescribed.
• They should also be committed to healthy life styles and they are also enjoined to meet financial obligations to the care giver as the relationship between them is first and foremost a contract.
Whenever a doctor/health institution accepts to treat a patient in law a contractual relationship has been created between them.
To constitute a binding contract there must be an agreement in which the parties are ad idem on essential terms and conditions thereof. The promise of each party must be supported by consideration. So heed the Supreme Court in the case of Yaro V Arewaconstruction Ltd.
In effect the elements of a valid contract includes but not limited to
1. Offer – an expression of willingness to contract
2. Acceptance – the unconditional expression of assent to the terms of an offer and in a manner consistent with that prescribed by the offeror.
3. Consideration – this is the price for which the promise of the other party is bought.
It is instructive to note that the intention to be bound by the terms of the contract flows from the consideration, in effect a promise without consideration is of no legal effect. Contracting parties cannot go into any contract that is illegal or contrary to public policy.
There is Mutuality of Obligation in contract but the law does not impose on the Practitioner that he must guaranteed the desired result but where he has contracted to do that i.e. guarantee a particular result he can be sued when desired result is not achieved.
This question came up for determination in GUILNER V CAMPBELL where a doctor gave an express and clear promise to cure a peptic ulcer disease in a patient by performing a surgical procedure on the patient. The doctor was held to be in breach when the ulcer was not cured.
Another basis for liability of a doctor is grounded in the tort of negligence.
For a liability in torts (of negligence) to attach to a defendant the initial question of law is whether the defendant owe any duty in law to the claimant in law.
In some other words is there a sufficiently close relationship between the parties that give rise to any duty of care.
Depending on the relative impecuniosity of the doctor you now check for the possibility of his employers being vicariously held liable for the acts of his employee.
The second and third questions which we must direct our minds are to the question of causation and remoteness of damage respectively.
The supposition here is that if the questions above are resolved in favour of the plaintiff/claimant then liability must flow from the carelessness/negligence of the defendants.
NEGLIGENCE, MEANING OF
Negligence in law ordinarily means a failure to do some act which a reasonable man in the circumstance would do or the doing of some act which a reasonable man in the circumstance will not do; please see:
1. BOLAM V FRIERN HOSPITAL MGT COMMITTEE
2. MCKAY V ESSEX AREA HEALTH AUTHORITY
3. ROE V MINISTER OF HEALTH
All of these cases are quoted in contradistinction to the case of Donoghue V Stevenson
The common denomination in all the cases quoted is that a tort feasor should be held liable for his negligence and that the extent of liability can be determined by looking at the consequence of his action or inaction if it is within the risk created by the action called into question.
If the above poser is assured in the affirmative then the tort feasor is liable in negligence.
RES IPSA LOQUITOR
It is a legal maxim which means “the thing speaks for itself”. It is used in law to raise a presumption of negligence.
It is an important and somewhat complicated form of circumstantial evidence used to establish defendants’ unreasonable conduct.
Its strength in medical negligence cases is that it permits drawing of inference such that a court may hold that a defendant acted unreasonably without any other proof.
It has it greatest impact in cases where the plaintiff is unable to make specific allegations about what the defendant did wrong.
It has the import of shifting the burden of proof from the plaintiff to the defendant.
In Byrne V Boadle, plaintiff called in the aid of res ipsa loquitor and led no further evidence where defendants’ barrel from a warehouse fell on him.
In delivering judgment the court held that a barrel could no roll out of a warehouse without someone from negligence and to say a plaintiff injured to call evidence is preposterous.
Before the maxim is invoked more than just the happening of an accident is required for the plaintiff to prove defendant’s breach of duty.
The harm causing event has to be tied to the defendant and the event must be one that generally does not occur sans negligence. The rule in res ipsa is probably the defendant and exclusive control.
The rationale for this is to force the defendant who has the most understanding of how the harm causing event came about to come forward with the information.
In Cassidy V Ministry of Health, the plaintiff entitled hospital for an operation to correct dupuyren’s contracture of his two fingers, following treatment four of his fingers because affected with the contracture, the doctrine was successfully invoked.
In the Nigerian case of Igbokwe VUCH Board of Management; the deceased was admitted into the 4th floor of the defendant hospital where she successfully delivered a baby.
Post partum she developed a form of mental derangement and was put on sedatives. A nurse was instructed to keep an eye on her, six days later the deceased corpse was discovered on the ground floor haven fallen to her death from the 4th floor.
Her dependants claimed damages for her death and contended that her death was due to negligence on the part of the hospital, the hospital did not call evidence to rebut.
The inference of negligence which arose from the facts. The court found in favour of the plaintiff.
MEDICAL NEGLIGENCE IN NIGERIA
The code of Medical Ethnics in Nigeria under rule 33 describes medical malpractice thus “When any aspect conducted by a registered practitioner is called to question to the information or knowledge of the Medical and Dental council of Nigeria by an aggrieved person or by colleague or by any other means whatsoever, that aspect or area f the practice or professional relationship and any other relevant matters shall be examined within the context of the provision of the Act.
Such a practitioner who is this found by the statutory procedure to have failed to meet the professionally accepted standards, methods or decorum shall be guilty of malpractice.
From the provisions of the rules it can be deduced that the under listed will be viewed as professional negligence by health care givers.
1. Failure to attend promptly to a patient
2. Failure to obtain informed consent before medical procedures requiring such.
Making error(s) of diagnosis i.e. non diagnosis/misdiagnosis. Not being on the look out for contra indications in treatment and during prescription.
Failure to refer promptly when there are indications for referral, inadequate investigations e.t.c. The categories of negligence are not closed.
However it is the view of this writer that it is better to seek legal remedy from the courts instead of approaching the MDCN disciplinary tribunal.
But it is sad to not that in Nigeria there is dearth of cases on this head of torts. There are however blatant incidence of Medical Malpractice/negligence in this country.
There is the case of one Ronke Daniel a nurse who delivered her baby prematurely but because the hospital which she delivered in lacked an incubator she was transferred to Duro Solege hospital. On 7th day after birth baby Daniel developed jaundice.
On the 9th day parents were informed that he needed transfusion. The right side of his head was shaved to find vein.
Final examination before discharge showed swelling where he was transfused. Doctors elected to drain the swelling through I &D (Incision & Drainage) when thiswas done there was profuse bleeding from the point of incision which was not meant to be.
Eventually the child developed Cerebral Palsy.
Another case worthy of mention is that of Emmanuel Gozie, Emmanuel was given birth to at the Ark hospital in Ipaja. The boy developed jaundice after birth and the attending doctor discharged them that it is nothing to worry about today Emmanuel has been diagnosed with Cerebral Palsy
Another case instructive to note is that of Oyinkansola Eniola who was transfused with HIV positive blood when she needed transfusion at Lagos University Teaching Hospital.
Baby Samuel Orji sued the Lagos State health Service commission for 500 million naira for damages reselling from circumstance leading to his birth at the Apapa General Hospital. Much detail on the case can not be given because it is a matter in court however it is being handled by the law firm of Messrs Omobolaji Adejumo & Co.
The observed trend in Nigeria is that victims of Medical negligence are unwilling to go to court but efforts are being made by some lawyers to sensitize them on their legal rights however there is still paucity of efforts in this regards.
It is the fervent believe of this writer that incidence of Medical negligence will reducesignificantly once victims start defending their rights to life and its enjoyment.
Lastly, doctors are advised to get malpractice insurance as damages resulting from Malpractice suits are quite Steep.
END NOTES
1. CAP M8 Laws of the Federation of Nigeria 2004
2. MDCN
3. Lagos University Teaching Hospital
4. This is not exhaustive of the Mandate of the Council
5. Op cit
6. NYSC Doctors & Dentists are exempted from paying the annual practicing fee.
7. Suit no LD/1229/09
8. Vagina Birth after Caesarian
9. S.33 of the Nigerian 1999 constitution
10. (2001) 19 WRN @ 1
11. (1990) 67 DLR (4) @321
12. (2007) 6 S.C (Pt. 11) 149
13. (1971) 188 NW 2d 601 (Much Sp crt)
14. (1957) 2 All ER 118
15. (1982) QB 1166
16. (1954) 2 All ER 131
17. the locus classicus in tort of negligence, see also:
iStapley V Gypsum Minus LTD
ii Liesboch, Dredger Edisonss owners (1933) A.C 449
