By Babayemi Olaniyan Esq, LL.M, ACIS
Medicine is one of the noble professions because it is a profession that beholds the sanctity of human life. However, the profession has its own challenges and that is the allegation of medical negligence. Thankfully, the law has breached the gap of providing succor to both the medical practitioner and the patient from understanding the extent of their rights when violated or not. The medical laws do not fail to protect the medical practitioner also from incurring tortious liability and when the medical practitioner is not absorbed from such liability. This liability stems from the one of the essential duties of practice for every medical personnel and that is the duty of care. This article shall define what is duty of care and medical negligence?. What are the instances of medical negligence? What are the ingredients that determine duty of care and when does a medical practitioner act negligently? Finally, what remedies are available to a patient whose medical rights have been violated?
DEFINITION OF CONCEPTS.
WHAT IS DUTY OF CARE?
Duty of care is one of the fiduciary relationships owed by the doctor to his patients. The Black’s law dictionary defines fiduciary relationship as a relationship in which one person is under a duty to act for the benefit of another on matters within the scope of the relationship. The court defined fiduciary relationship in the case of ABATAN V. AWUDU (2002) 18 NWLR (PT 799) 377 as:
‘’The relationship between a doctor and his patient is one of trust and confidence; a relationship where one has the power and duty to treat and restore the other to mental and physical well being’’.
This duty is a promise made by medical practitioners upon induction after going through the necessary medical training and enforced by the hippocratic oath. These laws are guided by international laws and by international standards such as the adoption of the 2nd General Assembly of the World Medical Association, Geneva, Switzerland September, 1948. The promise states that the health of my patient will be my first consideration. The International Code of Medical Ethics also reiterated this promise which states: a physician shall owe his/ her patients complete loyalty and all the scientific resources available to him/her.
The Nigerian National Health Act, 2004 is not left out. The law provides for the rights and obligations of users and health care personnel in sections 20 to 30 of the Act. summarily the law provides for the duty to disseminate information, user to have full knowledge and duty to treat in emergency situations amongst others .
WHAT IS MEDICAL NEGLIGENCE?
The court defined negligence in the case of DIAMOND BANK LTD V. P.I.C LTD (2009) 18 NWLR ( PT 1172) 89 PARAS E-F, the court defined defined negligence as follows:
‘’What is Negligence? In Black’s law dictionary, 8th edition at pages 1062 to 1063, twenty eight types of categories of negligence, are stated therein. At page 1061 thereof, negligence is generally defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or wilfully disregardful of others rights’’.
Also, in the case of ODINAKA V. MOGHALU (1992) 4 NWLR (PT 233) 1 PAGE 15 PARAS E the court defined negligence as follows
‘’ Negligence generally, is the omission or failure to do something which a reasonable man, under similar circumstance would do, or the doing of something which a reasonable and prudent man would not do’’.
Medical negligence is connected to the medical field to mean a medical personnel’s inability to provide the sufficient standard or duty of care owed to his or her patient which is found evident amongst other medical personnel. A medical personnel acts negligently in his profession when he or she commits an act or omission that another medical personnel(s) would reasonably do to protect their patients.
WHAT ARE THE INSTANCES OF MEDICAL NEGLIGENCE MAY ARISE?
There are very common instances where medical practitioners are found liable for not exercising the duty of care. These include birth injury, surgical error, failure or delay to diagnose, misdiagnosis, hospital acquired infections and emergency room errors. These and many more are instances which a patient may suffer due to a medical personnel’s negligence. These instances do not limit a patient’s right of action because there are other instances that may arise in which a patient can prove that his or health care personnel acted negligently in his or her case.
In Nigeria, one of the legal frameworks that regulates the medical profession is the Rules of Professional Conduct for Medical and Dental Practitioners, revised in 2004 and also referred to as Code on Medical Ethics in Nigeria. Rule 28 contains an open ended list amongst others on what may constitute professional negligence to wit:
(i) Unreasonable delay in attending to a patient;
(ii) Incompetent patient assessment;
(iii) Incorrect diagnosis despite glaring clinical features;
(iv)Proffering wrong or no advice as to risk involved in a particular type of treatment especially such that may lead to deformity or loss;
(v) Non obtainment of patients consent prior to surgery or course of treatment, especially where necessary;
(vi) Making mistake in treatment;
(vii) Failure to refer or transfer a patient in good time where necessary;
(viii) Failure to do anything that ought to reasonably be done for the patient’s good;
(ix) Failure to see a patient as often as his medical condition demands, make proper notes on practitioners observations and prescribed treatment during suh visits or to communicate with the patient or his relation as may be necessary to any developments, progress or prognosis in the patient’s condition.
WHAT ARE THE INGREDIENTS OF DUTY OF CARE?
The court in the recent case of OWOYELE V. MOBIL PRODUCTION NIGERIA UNLTD (2021) 5 NWLR (PT 1768) 70 established the ingredient of duty of care.
The essential elements or ingredients of actionable negligence are as follows:
The existence of a duty to take care owed to
(a)the claimant by the defendant;
(b)prescribed by law (breach of the duty), and
(c)Damages suffered by the claimant, which must be connected with the breach of the
duty to take care.
Once these ingredients are established at a hearing, the defendant will be held liable in negligence.
The first ingredient is required to establish that the duty of care exists between two parties and it is owed by the defendant to the claimant. In this article the parties shall be the medical personnel and the patient.this is necessary to establish because of the fiduciary relationship that exists.
The second ingredient requires that duty of care owed to the claimant by the defendant must be prescribed by law or a breach of duty. The medical profession is guided by certain laws and by oaths that are sworn by members of the medical profession upon completion of their training; these oaths are laws that can be enforced against these personnel upon failure or breach. Chief amongst these laws is the Medical and Dental Practitioners Act, CAP M8 2004.
Thirdly the claimant must prove that because of this breach, he or she suffered an injury. It is trite law that he who asserts must prove. Therefore the claimant must prove that he suffered injury due to lack of exercise of duty of care by the medical practitioner.
The court further decided in DIAMOND BANK LTD V. P.I.C LTD (2009) 18 NWLR (PT 1172) decided on what plaintiff must plead in action alleging negligence as thus.A plaintiff in an action in negligence, is required to state or give particulars of negligence alleged and to recover on the negligence pleaded in those particulars. It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant in a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed him by the defendant.
A medical case that attempts to further discuss these ingredients is the case of OTTI V. EXCEL-C MEDICAL CENTER LTD (2019) 16 NWLR (PT 1698) 274 . The court stated the principle of duty of care owed to a patient by a medical doctor or hospital. A medical doctor or a hospital owes a patient a duty of care with regard to the procedure for the medical treatment of the patient.
WHEN A MEDICAL PERSONNEL ACTS NEGLIGENTLY
Therefore for a medical personnel to be found guilty of medical negligence, it has to be proved that he or she failed to exercise the duty of care expected of him or her which his or her colleagues of the same profession would ordinarily do in the same case when treating the patient. The ingredients under duty of care must be proved to establish that indeed the claimant was owed a duty of care. This liability is based on the fiduciary relationship existing between a patient and the medical personnel.
This is further laid down in the case of DIAMOND BANK LTD V. P.I.C LTD (SUPRA) on what the plaintiff must prove in an action alleging negligence. The court decided that in an action alleging negligence, the plaintiff must show that the defendant owes him a duty of care and that he has suffered damage by breach of that duty.
In determining whether or not a medical personnel has acted negligently, the court has to establish whether or not there is sufficient action found on negligence. This is based on the Principle guiding determination of action founded on negligence . The court’s decision in OWOYELE V. MOBIL PRODUCTION NIGERIA UNLTD (SUPRA) stated that; an important consideration that arises in an action founded on negligence is whether as between the alleged wrongdoer and the person who has suffered damages, there is sufficient relationship of proximity or neighborhood such that in the reasonable contemplation of the former,carelessness on his part may likely cause damage to the latter. The duty arising from proximity inlaw or fact is a condition precedent for liability in negligence.
Every patient has reasons to believe that the medical facility and personnel are capable and have the requisite skill to carry out treatment. The relationship is contractual, that one submits himself for treatment and medical advice of the professional and in turn abides by this medical advice.
A recent decision of the court in the case of OTTI V. EXCEL-C MEDICAL CENTER LTD (2019) 16 NWLR (PT 1698) 274 page 318 paras E-G. The court determined what must be proved to establish negligence by a medical practitioner. The court held that :
‘’ It is rudimentary law that in order to find a medical professional guilty of negligence, the situation has to be such that what he did is what professional colleagues would say that he really made a mistake and that he ought not to have made it. Put differently, the action would be such that it falls short of the standard of a reasonably skilful medical professional: Ojo v. Gharoro. I find nothing in exhibits C, D and D1, which the appellant relies on as proof of breach of duty of care by the respondents, remotely suggestive that the medical procedure performed on the appellant was not properly performed or that it fell short of the standard of a reasonably skilful medical professional’’.
The court in OKONKWO V. M.D.P.D.T (1999) 9 NWLR ( PT 617) 1 went further to determine the extent of the duty of care to be exercised by the medical officer. The court decided on the measure of care required of medical doctors in relating with their patients as the relationship of doctor and patient is a very special one, the patient having put his health and his life in the doctor’s hand, the use of reasonable care is required of the doctor. Even if the charge of negligence fails to qualify the measure with such word as “gross” or any other adjective, or the measure of care required of the doctor, the law will imply “reasonable care”.
The court’s decision in the case is that: ‘’a medical practitioner is charged with being liable for an omission or failure to perform medical treatment after admitting the patient in his hospital for the purpose of treating him and failing to administer medical treatment which he ought to have administered and the patient died. It would be a criminal offense. This is clear from the wording of Section 303 of the Criminal Code. It is a breach of duty regarded as criminal under the Code. Chapter 26 of the Code under which Section 303 falls is titled, “Duties relating to the preservation of Human Life.” That duty underscores the patient/ doctor relationship. Lord Scarman in the case of Sidaway v. Governor of Bethlehem Hospital (1985) 1 A.C. 871 at 884 put the matter thus,”the relationship of doctor and patient is a very special one, the patient putting his health and his life in the doctor’s hands.”To my mind, the use of reasonable care is required of the doctor. Even if the charge of negligence fails to qualify the measure with such word as “gross” or any other adjective, or the measure of care required of the doctor, the law will imply, “reasonable care.”
REMEDIES AVAILABLE TO A SUCCESSFUL CLAIMANT
There are a number of remedies for a party that has suffered damages from the negligent act of the medical officer. First is in the civil jurisdiction. The successful claimant must have been able to prove under a tortuous or contractual claim under the ingredients aforementioned in this article further enunciated in the locus classicus case of DONOGHUE V. STEVENSON (1932) AC 562 (2002) 12 WRN 10 establishing the neighborhood principle that the patient is owed a duty of care, that the duty of care is imputed to any patient-doctor relationship; that there was a breach of the duty and any breach is actionable; the patient suffered damage as a result of the breach. Consequently the successful claimant is awarded damages,specific performance or order rescission. Secondly, another option a claimant may have is in criminal litigation. The claimant must prove that the medical practitioner is liable for the unlawful killing of of another which is the patient in this case and which would amount to the offence of murder or mansaughter. This is proved by the intention of the defendant. Where the the medical practitioner had intention and unlawfully killed the patient, he is held criminally laible for murder. Meanwhile , where the medical practitioner unlawfully kills another without intention to do so, he is held liable for manslaughter. The punishment can be capital punishment, imprisonment or fine.
Thirdly the claimant may seek redress from the professional body of the medical profession. The Medical and Dental Practitioner’s Act established the Medical and Dental Practitioners Disciplinary Tribunal and the Medical and Dental Practitioners Investigation Panel. The former is saddled with the determination of any offense that has been alleged and the later for the investigation of an alleged offense. The successful claimant may have the defendants punished through the following ways which includes striking out the name of the practitioner,suspension of practice or admonition . This is provided for under section 16 of the Act.
DEFENSES AVAILABLE TO THE ACCUSED MEDICAL PRACTITIONER
A medical practitioner is not also without succor. Where a patient sues based on the grounds of medical negligence, a medical practitioner also has remedies available. Firstly the medical practitioner can defend himself by way of vicarious liability. This defense simply means that the medical practitioner is stating that it is his employer i.e the hospital and not him that should be held liable.
Secondly, the doctor can plead based on the principle of volenti non fit injuria. This means that where a person in this case the patient has consented to a particular act , he or she cannot complain.
Thirdly, the doctor can rely on the fact that the damages suffered by the patient was as a result of contributory negligence. This makes the patient partly responsible for the injury and damages incurred.
Fourthly the medical practitioner can rely on the fact that the patient’s life was at risk and could not give consent, as such the medical practitioner had to act to preserve the life of the patient. Lastly, that the medical practitioner exercised the skill someone else in the same degree of medical practice could have exercised and had the same resources at his disposal.
No patient desires to walk into the hospital for treatment and leave worse than they came. Unfortunately, issues are arising daily that are exposing patients to more health hazards rather than healing with medical establishments and their staff refusing to take responsibility for their negligent actions. Thankfully the law which is the last resort of the common man has created legislation which provides ways for establishing such breach against patients and the remedies for damages for such breach when proven. It is also our submission that there needs to be more cases reported on Medical negligence and not just people leaving the matters to the ‘’hand of God’’.
Babayemi Olaniyan Esq, LL.M, ACIS
Z.Y Karu Esq
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