In the past month alone, I personally know of three people who have passed away due to the medical care they received from their doctors. When we are sick and we go to see a doctor, we hope that the doctor is competent, skilled and knowledgeable. We also hope that the doctor will recognise when the ailment we present with is beyond their skill and knowledge, and refer us to someone more skilled and knowledgeable.

Sometimes, we hear of cases where a patient was being treated for months for one ailment, whereas there was a more serious ailment, which eventually leads to the death of the patient. There are cases where the wrong drugs have been prescribed or necessary tests were not carried out before prescribing medication, and the patient dies. The family is reeling in pain and in their grief, they want answers, but how far can they or should they go to get answers and maybe some compensation.

Medical negligence like other negligence cases requires that same ingredient: there is a duty of care owed (doctor to patient), that duty of care was breached, the breach caused injury to the patient.

A person owes a duty of care to another person where the injurious consequences of their actions are reasonably foreseeable, there is proximity in the relationship between the persons, and it is fair, just and reasonable to impose such a duty. Therefore, while a doctor owes his patient a duty of care because of their doctor/patient relationship, the same doctor does not owe the whole world the same duty of care. The doctor may have moral obligations to the world-at-large, but that moral obligation is unlikely to metamorphose into a duty of care in a tort claim of negligence. In considering whether or not there is a breach of that duty, the courts will consider whether the defendant’s acts or omissions are such that a reasonable person, in the same circumstances, would do or not do the same and whether the consequences of their acts or omissions were reasonably foreseeable. Causation is the final step; that the breach of duty caused injury to the plaintiff.

However, in medical negligence cases, the courts have been very reluctant to find against the doctors except in very extreme cases of gross negligence. The bar is set high in favour of the defendant/doctor, as to what is fair, just and reasonable. The treatment must be palpably wrong for the courts to find for the plaintiff/patient. The rationale for this position is that a lower threshold for medical practice negligence would misplace patient care for the avoidance of a lawsuit. Doctors would become too cautious and, in the end, patients would still be at the losing end. The human body is a complex machine, and sometimes, even the experts cannot prevent a malfunction.

Many years ago, I worked in the dean’s office of a medical school in America. We all celebrated when the daughter of the head of the obstetrics department got married. Less than a year later, she was dead. She died giving birth, in the presence of her father who was also in the delivery room. She died from haemorrhage due to placental abruption. In a hospital that had all the facilities, and doctors of many years of experience, they were unable to save her. The point I am trying to make is that sometimes, despite the best efforts of the doctors, the outcome is still bad for the patients.

In the case of Ojo v Ghahoro & Ors, [2003] LPELR-2383 (SC), Niki Tobi, JSC, was persuaded by the words of Lord Denning, in his sub-chapter titled “Doctors at Law in Part Six on Negligence in his book: The Discipline of Law, pages 237, 242 and243:

“A medical man, for instance, should not be found guilty of negligence unless he has done something of which his colleagues would say: ‘He really did make a mistake there. He ought not to have done it’ … but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risks. It would be wrong, and, indeed, bad law, to say that simply a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community, if it were so. It would mean that a doctor examining a patient, or a surgeon operating at a table, instead of getting on with his work, would be forever looking over his shoulder to see if someone was coming up with a dagger for an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not, therefore, find him negligent simply because something happens to go wrong… You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man, in short, when he is deserving of censure.”

The burden is on the plaintiff to prove that the defendant was negligent, and the best way to do that is with expert evidence, not speculation as to what the patient or their relatives perceive as the proper care that was owed to their loved one.

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