By Titilayo Ojo
In Nigeria, the medical profession is one that has suffered some setbacks in dealing with issues relating to medical negligence. These cases of medical negligence, has caused much grief to several families and little is known of the legal consequences of the actions of the medical practitioners or respective health care establishment. As a result, people tend not to voice out or take action in cases where gross medical negligence has been done, due to various reasons which shall be highlighted in this article. The reality that exists today is that the average Nigerian has only a vague knowledge of the existence or enforceability of the Laws regulating Medical Practice, particularly curbing Medical Malpractice and Negligence in Nigeria.
The term ‘medical negligence’ refers to failure, on the part of a medical practitioner to exercise reasonable degree of skill and care in the treatment of a patient. The need for patients to be protected from medical practitioners who no longer use their professionalism to save lives but as an avenue to make more money at the expense of their patients. Globally, the fight for the protection of patients has been canvassed. In a bid to ensure the right of the patients in Nigeria, legislation and increased reliance on court action are ways to ensure that negligent medical practitioners are made to pay damages to affected patients. Though some have held the view that the medical profession should be left to regulate itself (through the regulatory aid of the Nigerian Medical Council) and that it alone should decide what is an acceptable conduct.
The Nigeria Medical Council regulates the actions of Medical Practitioners in line with laid down rules and regulations for medical practitioners towards a patient and where a medical practitioner goes contrary to the rules and regulations, a medical tribunal is set up to try him for malpractices. Medical practitioners are to avoid practices such as advertising association, addiction, abortion and adultery. In instances where a medical practitioner is found guilty of any of these offences, he is deemed to be guilty of infamous conduct in a professional respect. The principles and laws governing the medical profession should ordinarily be enforceable but these rules enforced by the Medical Council, are bedevilled by quite a number of legal problems.
Some of the problems are associated with the court’s strictness on the application of natural justice in a situation where a tribunal or an administrative body purports to make a decision affecting the rights of another without observing the principle of audi alterem partem and fair hearing. Moreover, the Supreme Court has held in Garba v University of Maiduguri, that an administrative tribunal do not have jurisdiction to conduct inquiries or take decisions in a matter involving an allegation of crime. The view of the court in connection to the civil rights of persons even of those accused of infamous conduct has led to different outcomes and decisions in various cases.
An action of negligence against a medical practitioner must prove three conditions in order to succeed:
(a) That the doctor owed the patient a duty to use reasonable care in treating him or her.
(b) That the doctor failed to exercise such care, that is he was in breach of that duty.
(c) That the patient suffered damage(s) as a result of the breach.
It is important to note that the medical practitioner’s duty of care arises once such one doctor undertakes to treat a patient, whether or not there is an agreement. The medical practitioner is expected to exercise reasonable care and skill in treating the patient; it is pertinent that the doctor is rendering such a service ex gratia. The extent of the duty of care is so much so that a medical practitioner in the hospital owes a duty of care to patients in the ward in which the doctor is employed to work, a private physician who has contracted to provide medical services for the employees owes a duty of care to such employees who are on the clinic’s list. Medical centres and hospital authorities also owe the same duty of care to patients accepted for treatment in their facilities, whereby they must provide proper medical services for them. A medical practitioner who holds out to a patient as possessing special skills and knowledge in a particular field of medicine or surgery, then such medical practitioner must exercise the same degree of care and skill as a doctor who generally practices in that field.
In deciding on medical negligence, the court balances all the relevant circumstances in order to decide whether the medial practitioner’s conduct has fallen below what constitutes a reasonable standard of care. He is particularly judged according to what a person in a particular circumstances “ought to have done and person’s foresight is similarly assessed according to circumstances and risks which ought to have been foreseen. Conduct that constitutes breach of duty could take various forms which includes but not limited to failure to admit into hospital a patient whose condition requires hospitalisation, failure to sterilize surgical instruments, leaving a surgical instrument or swab in the body of a patient after operation, failure to cross match blood before transfusion, prescribing drugs using a patient for experimental purposes without the consent of the patient.
Additionally, an action for medical negligence cannot succeed unless the patient has suffered some harm as a result of the medical practitioner’s negligence. It is not sufficient that a doctor was negligent in giving medical treatment to the patient and the patient suffered some harm. It must be shown that on balance of probabilities the harm was so caused. Usually, expert medical testimony is called to prove this causation. The courts adopt a broad approach in resolving legal issues arising thereof. If the court determines that the damage would have occurred despite the doctor’s negligence, then the negligence did not cause it. In a plethora of cases in proving medical negligence, one conclusion is inescapable, namely that, the court cannot attain its purpose of trial without conscientious assistance of medical experts.
LAWS GOVERNING MEDICAL ETHICS IN NIGERIA
The Medical Profession in Nigeria is regulated by the Medical and Dental Council of Nigeria (MDCN). The MDCN in furtherance of its statutory functions as provided for in Section 1 (2)(c) of the Medical and Dental Practitioners Act (MDPA), Cap M8 , LFN 2004, codified the rules of professional conduct for Medical and Dental Practitioners in its Code of Medical of Ethics in Nigeria (2008). There are two organs responsible for the discipline of Medical and Dental practitioners.4
Section 15(3) of the Medical and Dental Practitioners Act establishes the Medical and Dental Practitioners Investigation Panel (“The Investigation Panel”) which is saddled with the responsibility of conducting preliminary investigation into any case where it is alleged that a registered person has misbehaved in his capacity as a medical practitioner or dental surgeon amongst other functions. The Investigation panel after investigation will determine whether or not a prima facie case has been established against the practitioner. If a prima facie case is established against the practitioner, the Investigation Panel will frame a charge against him before the Medical and Dental Practitioners Disciplinary Tribunal (“the Disciplinary Tribunal”)
The Disciplinary Tribunal established by section 15(1) of the Medical and Dental Practitioners Act is charged with the duty of considering and determining any case referred to it by the investigation panel. Where the Disciplinary Panel finds a practitioner guilty of in-famous conduct in any professional respect, in line with the provisions of section 16(2) of the Medical and Dental Practitioners Act, the Disciplinary Tribunal may order the Registrar to strike the person’s name off the register; or suspend the person from practice by ordering him not to engage as medical practitioner or dental surgeon for a period not exceeding six months; or admonish the practitioner. The drawback however, is that the provision for suspension was pegged at six months, it would have been better if it was made flexible because some offences are not grave enough to attract striking out the practitioner’s name from the register but deserve more than six months suspension.
MEDICAL NEGLIGENCE WITH CRIMINAL CONSEQUENCE
It is trite that criminal law does not generally punish negligence. This is due to the fact that Section 24 of the Nigerian Criminal Code Act 1990 states that “no person can be criminally responsible for his unwilled acts or omission or even the accidental consequence of his willed acts”. But this section is subject to the express provisions of the Code relating to negligent acts or omission.
In a case where medical treatment results in the patient’s death in consequence of the gross negligence of the Medical Doctor, a charge may be sustained against him for manslaughter as was the case in R .v. Akerele (1941) where a Medical Practitioner who applied overdose of sobita on a number of children which led to their death was held (by WACA, although later reversed by the Privy Council on technical ground) to have been criminally negligent and accordingly convicted for manslaughter. This is because under Section 303 of the Nigerian Criminal Code Act 1990, every person, except in case of necessity, undertakes to administer surgical or medical treatment has a duty to have reasonable skill and to use reasonable care in administering the treatment and if any negative consequence results to the life or health of the patient as a result of his breach of this duty, he is held to have caused such consequence. However, because negligently causing death is the crime of manslaughter, such a doctor will be found guilty of manslaughter.
The criminal liability of a medical practitioner who has exhibited gross negligence in the management of a patient now enjoys universal acceptance. The case of Dr. Conrad Murray, Michael Jackson’s personal physician, who was found guilty of involuntary manslaughter i.e. criminal negligence, is a case in point. It was established during trial that Dr. Murray administered a lethal dose of anesthetic profonol on Michael Jackson in his house and left him without medical supervision. The Court described Dr. Murray’s conduct as reckless and he was sentenced to two years imprisonment.
In Nigeria, one of the grounds for the discipline of a medical or dental practitioner is conviction by a court which has the power to impose imprisonment for an offence (whether or not an offence punishable with imprisonment) which in the opinion of the Disciplinary Tribunal is incompatible with the status of a medical practitioner or a dental surgeon as the case may. Section. 16(1) Medical and Dental Practitioners Act, Cap.M8 LFN 2004.
Other offences which could make a Medical Practitioner liable during his course of duty once the elements of the offences are proved are abortion, adultery (in the north), rape, murder and manslaughter.
One question that would agitate the mind of a legal practitioner who represents a medical or dental practitioner facing a charge for medical negligence before the Disciplinary Tribunal is whether prosecution of a practitioner before the Disciplinary Tribunal can be pursued simultaneously with civil claim for damages in the courts.
Quite often, parties to a complaint of professional misconduct also proceed to court in respect of the same subject matter. Sometime, the complainant proceeds to court to claim damages for the negligence, while also laying a complaint before the Medical and Dental Practitioners Investigating Panel. Sometime also the practitioner complained against proceeds to court seeking a restraining order against either the complainant or the Tribunal. The question is whether the civil claim in the courts can be a bar to an investigation by the Investigating Panel, or trial by the Disciplinary Tribunal.
Ordinarily, the complainant would be at an advantage to await the result of professional disciplinary action before proceeding to the civil court for claims for damages. But as it happens quite often, due largely to a period of interregnum between the dissolution of one Council and the composition of another, complaints before the disciplinary organs of the professional bodies last much longer than three years before they are resolved. Of course after a period of three years, a claim based on negligence would in most jurisdictions be caught by limitation.
Some have argued that once a Suit has been instituted in the High Court on the same subject matter, the matter becomes sub judice, such that no investigation by the Investigating Panel or trial by the Disciplinary Tribunal ought to proceed. If such were the position, such cases would linger for a very long time as to lose their deterrent value, or even discourage the complainant from further pursuing the matter.
It therefore advisable, that instances of medical negligence against the medical practitioner should come by way of criminal prosecution, because conviction by the court is by itself a ground for the Disciplinary Tribunal exercising disciplinary action against the medical practitioner.
DEFENCES OF MEDICAL PRACTITIONERS TO THE CLAIM OF MEDICAL NEGLIGENCE
In as much as the cases of medical negligence seems clear cut; leaving medical practitioners with little or no excuse for the resultant effect of their act and omissions on a patient, sadly, though, these medical practitioners have to their defence, the consent obtained from the patient. They rely on consent where there are allegations against them for medical negligence, alleging that the patient consented to the treatment but forgetting the fact that the patient only consented to proper management of sickness. Invariably, the law will either imply consent or give the medical practitioner the benefit of the defence of private necessity under consent. The use of consent as a defence is rather worrisome as we all know that in Nigeria, necessary details are often not communicated to patients which is due to the fact that because of poor educational background, most patients.
Consent must not be obtained under duress, threats, violence or by inducement. The majority of hospital’s surgical procedures are expressly authorized by the patients having signed a consent form, but such consent will not protect a surgeon from liability for negligence in the course of the procedure, neither will it permit the surgeon to undertake a procedure going beyond the consent given or going on a voyage of exploration unless the treatment creates an emergency situation which consent to the additional procedures cannot be obtained immediately. It is important that for the validity of the agreement, that the patient’s consent should be genuine and real; not given under circumstances which would make it not to be a real consent.
Another defence that medical practitioners usually rely on is the defence of acceptable practice. The choice of accepted medical practice as to the criterion governing the disclosure of risks which supports the view that a doctor owes no duty to warn of normal risks, such as infection, and those created by anaesthesia which are inherent in any surgical procedure and the view that a doctor’s clinical assessment of the patient’s condition may justify the withholding of information in the patient’s interest. The law seeks to balance the conflicting interests in this area by a departure from accepted practice as not itself constituting negligence, but requiring the practitioner who chooses to experiment to justify his actions by recourse to the reasoning which underlined them. In medical treatment, the use of experimental procedures is likely to require a full disclosure to the patient of possible risks as well as the provision of an increased level of post-operative care. It is clear that the courts approach experimental treatment strictly and seek to ensure that a professional person who chooses to undertake such work has considered all the information available on the techniques in question, and has access to the results of empirical research in any question of doubt that remains, and has taken reasonable care to think the problem through so as to attempt to identify any particular difficulties posed by his suggested solution.
SETBACKS TO THE REDRESS OF MEDICAL NEGLIGENCE
The major obstacles in seeking redress in a medical negligence case is that majority of the victims of medical negligence have failed to undertake legal proceedings against medical practitioner due to lack of finance. Judicial procedures usually require substantial sums of money to prosecute as the victim will certainly require the services of not only of a legal practitioner but also of a medical practitioner as expert witness. The reality of the situation is that victims of medical negligence often the poor and these cannot shoulder the financial responsibility involved in the pursuit of their case. The indigent litigant will because of the high cost, be deprived of his rights to litigate notwithstanding the grave harm that may have been done to him. While others have given their reasons for not going to court as due to the fact that such cases do take very long time before it is determined.
The question as to who can sue for medical negligence, it is anyone to whom the duty of care is owed. Statutes may also confer such a right to some people who were not entitled under common law; for example where death occurs as a result of the negligence of another. Every person of full age of 18 years can sue, an infant or minor (not yet 18 years) having a cause of action can sue through his “next friend”, parent or guardian.
DAMAGES AWARDED FOR MEDICAL NEGLIGENCE
Damages awarded in medical negligence ranges from compensatory, special, aggravated or exemplary.
Compensatory damages are paid to compensate the victim for loss, injury or harm suffered as a result the breach of duty.
Special damages are compensatory damages categorized under special damages, which are awarded to victims to cover economic losses such as earnings, medical expenses and general damages. It further includes non-economic damages such as pain, suffering and emotional distress.
Aggravated damages are awarded to compensate for non-pecuniary losses, aggravated damage; taking into account intangible injuries. Such intangible elements include pain, grief, damaged self- confidence or self-esteem, etc. It is important to note that, it is not the damages that are aggravated but the injury suffered by the victim. The damage award is therefore, for aggravation of the injury by the medical practitioner’s high handed conduct.
Exemplary damages are damages awarded when the Medical practitioner’s act is deemed wilful, malicious, violent, or grossly reckless. These damages are awarded to act as punishment and to set a public example.
LIST OF AUTHORITIES
Garba v University of Maiduguri 19 NSCC 306
Section 1 (2) (c) of the Medical and Dental Practitioners Act (MDPA), Cap M8, LFN 2004
Section 15(3) of the Medical and Dental Practitioners Act
Section 15(1) of the Medical and Dental Practitioners Act
Section 16(2) of the Medical and Dental Practitioners Act
Section 24 of the Nigerian Criminal Code Act, 1990
R .v. Akerele (1942)8 WACA 5
Section 303 of the Nigerian Criminal Code Act, 1990
Section. 16(1) Medical and Dental Practitioners Act, Cap.M8 LFN 2004.)