Medical Negligence: A Rising Science Of Law In Nigeria By Mercy Agbo

*ABSTRACT*

Life is the most precious and important treasure given to us by God and as such, it must be guided with utmost care and concern. Many people die in Nigerian hospitals as a result of medical negligence, yet few cases are reported and even fewer prosecuted. In 2017, a woman was operated in a hospital for goitre.

In the course of operation in theatre, the bleeding was outrageous and the doctors were confused, nevertheless, she was brought out of the theatre and few minutes away, she died. On being confronted, the doctors realized that the woman was pregnant and the anaesthetic injection administered to her was not good for a pregnant woman. Unfortunately, this was a diagnosis they ought to have carried out before the operation.

*What Is Medical Negligence*?

It can be defined as improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist or other health care providers. For there to be a case for medical negligence in the eyes of the law, three factors must be in place and they include: existence of a doctor-patient relationship which gives rise to a duty of care; there must be a breach of that duty by such medical practitioner and the patient must have suffered some kind of harm.

The duty of care required in this instance is that of a reasonable standard and not necessarily a perfect one. RULE 28, Rules of Professional Conduct for Medical and Dental Practitioners CAP 221 LFN 1990, also known as the Code of Medical Ethics highlights instances that would amount to medical negligence.

They include:

Failure to attend promptly to patient requiring urgent attention when the practitioner was in a position to do so. Manifestation of incompetence in the assessment of a patient. Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skilful practitioner could have failed to notice them.

Failure to advise, or proffering wrong 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 like deformity or loss of organ.

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.

Making a mistake 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. etc

Failure to refer or transfer a patient in good time when such a referral or transfer was necessary.

Failure to do anything that ought reasonably to have been done under any circumstances for the good of the patient.

Failure to see a patient as often as his medical condition warrants or to make proper notes of the practitioners observations and prescribed treatment during such visits or to communicate with the patient or his relation as may be necessary with regard to any developments, progress or prognosis in the patient’s condition.

Laws Governing Medical Ethics
There are various laws governing medical ethics in Nigeria. We have, The Medical and Dental Practitioner’s Act Cap M8 LFN 2004 which regulates and govern medical ethics in Nigeria and the code of ethics for medical and dental practitioners.

Secondly, there is the Rules of Professional Conduct for Medical and Dental Practitioners CAP 221 LFN 1990. Globally, medical practitioners are governed by the Hippocratic Oath, Ethical Guidelines which are historically taken by physicians to summarily pledge to serve humanity to the best of their ability and without discrimination of any sort and without breaching patient’s confidentiality. Another is the International Code of Medical Ethics (Declaration of Venice, 1983) Practitioners.

Options Available for Medical Negligence:

A report can be made to the police station to prosecute where investigation reveals gross negligence or where death has resulted from such negligence.

A complaint can be filed with the medical and dental council of Nigeria for appropriate redress.

The medical and dental practitioner’s Act provides for an investigation tribunal and where a prima facie case is established before the disciplinary tribunal, the medical practitioner will be liable to:

Suspension for a period of six months or having his name struck off the medical and dental register, as the case may be. Another option is exploring other means of alternative dispute resolution through arbitration or mediation. This greatly reduces the cost of litigation.

Patients can also seek redress in court of law by filling civil claims for tortious liability and a breach of duty of care.

*When and Who Can Lay A Claim*.

Generally, only victims of the medical error can sue. However, where the patient has passed on, the next of kin of the patient such as the spouse, parents, children can sue for compensation. If the patient is a child, the parents or the legal guardian of the child can sue.

Such persons have a period of three years to make a claim for compensation and this time period runs from the date when he or she first received the negligent treatment complained of or the date on which you first discovered that the treatment was negligent.

As each case varies, the amount of compensation varies with the claim. In deciding the amount of compensation which a patient is entitled to, the court will consider some factors such as, the person’s age, severity of injury, employment status and associated losses caused as a result of the treatment etc.

*Challenges Faced By Victims of Medical Liability *

This is mostly as regards litigation and to the fact that this area of law is mostly neglected in practice. Victims in court often face situations of unwillingness of doctors to give expert reports in cases of medical negligence.

Another hurdle is getting an appropriate autopsy report from a hospital as this may be purposely withheld to prevent the victim from establishing the claim or in order to buy time for the claim to become enforceable by the Public Officers’ Protection Act.

The Public Officers Protection Act (POPA) is one example of the loophole in Nigerian law that can affect the prosecution of cases. It provides that if you have any complaint against a public officer over anything done in the course of his official duty and you want to take legal action, you must do so within three months of the occurrence of that particular grievance.This has led to the neglect of such cases as persons who are in shock and grief over the death of loved ones cannot institute an action immediately and as such a protection will then be placed on such medical practitioners who are public officers.

Another hurdle is the doubt as to whether he or she will succeed; due to corruption, excessive waste of time and money in the course of litigation and this discourages persons from taking up an action.

*Recommendations and Conclusions*

Undoubtedly, medical negligence has threatened the trust and confidence placed on medical practitioners as ,most times people are scared of walking into any hospital or carrying out necessary surgeries due to fear of death as a result of negligence.

Also, some health care providers and nurses lack the spirit of hospitality and care for the patients they are taking care of. Therefore, there is need for medical negligence to be included in our civil law and if such results to death, it should be a serious offence.

Also, the use of the National health insurance scheme established under the National Health Insurance Scheme Act CAP N42 LFN 2004 should be adequately made use of. This is because the NHIS is aimed at providing quality healthcare in a cost effective way and patients are offered a variety of health care options.

Furthermore, citizens should be made aware of their rights to ask questions, right to second options, right to choose their preferred treatment options and a voice to complain. Also, regular check and assessment of portfolio and skills of all medical practitioners and persons in the health sector should be carried out.

More so, an agency or committee should be set up to look into this affairs and groom and encourage doctors to give expert evidence and reports on cases of negligence and lawyers who take up such cases must ensure that they have a reasonable exposure and knowledge of such ailment, the negligent act, its causes and consequences and how they have affected the patent.

One can take the following ten steps before prosecuting medical negligence:

Get your facts right. When did the negligence occur; if there was any bodily or emotional harm; whether a doctor explained the treatment options and its consequences

Get an expert opinion from a doctor. Find out what another doctor would have done in the same scenario.

Consult a lawyer. He or she would know the right things to do.

Write a letter to the doctor or hospital involved. Better yet, let your lawyer write it in order that the case is settled out of court.

If you have to go to court, be aware of the public officers’ protection Act and file the case within three months of the offence.

Get your medical case file as quickly as you can.

Gather as much evidence as you can. Follow your legal proceedings thoroughly to avoid the case being thrown out for non-diligent prosecution.

Brace yourself as the road to justice may be long, and you need courage to last you though the duration of the case. Do all the steps listed above.

We may not be able to solve all the challenges arising from medical negligence; however, we can collectively make efforts to make it bearable.

*Mercy, a graduate Nnamdi Azikiwe University is an ardent legal researcher and an aspirant to the Bar. She can be reached at 08137382200 and Mmamercy3@gmail.com Mmamercy3@gmail.com