Introduction
Medical malpractice otherwise known as a breach of professionalย obligationย and negligence of duty by medical practitioners has been identified as the major cause of emergingย medical litigation in Nigeria.ย A 2017 survey on medical errors in Nigeria published by Archives of Medicine and Health Sciences showed a prevalence of negligence at 42.8 per cent per 145 medical practitioners.ย According to the report, the three most common errors were error of medication prescription, which was put at 95.2 per cent; error of radio-laboratory investigation ordering at 83.9 per cent and error of physician diagnoses at 69.4 per cent. Other frequently cited studies also placed the number of deaths as high as 250,000 yearly. This makes medical error the third leading cause of death, behind cancer and cardiovascular disease, in Nigeria.ย Nigeria is the most populous country in Africa and even though most patients still keep quiet about issuesย regarding malpractice and suits are rare, medical personnel must be aware in their practice that patients are increasingly becomingย more unforgiving when there is perceived harm to their loved ones as aย result of medical negligence. The public is becoming more aware of their rights.
Patient safety is a cornerstone of quality healthcare, and medical negligence poses significant risks to patients and healthcare providers alike. However, medical negligence claims and lawsuits can serve as powerful catalysts for driving positive change in healthcare systems, fostering a culture of safety, and prioritizing patient well-being. This article delves into the role of medical negligenceย suitsย in improving patient safety, incident reporting, implementing best practices, and rebuilding public trust in healthcare providers.ย It also explores key legal reforms that can enhance accountability and promote the public interest in cases of medical negligence.
Mrs. Mary walked into the hospital in Jos, on an early Thursday morning, the 27th of April 2023, complaining about persistent diarrhea and vomiting after her previous nightโs meal. She was a healthy woman, who had survived cancer and had tests to prove it. So how is it that she is no longer with us? Two words: medical negligence.
Upon learning the details of what unfolded within the hospital, a surge of emotions engulfed me, a complex mixture of grief, anguish, fury, and disbelief. Even now, as I pen down these words, the predominant emotions remain anguish and outrage, the latter simmering fiercely within me. My ire is directed towards the doctor on duty, who, for an excruciating six hours,ย failed to assist a healthy woman that had entered the emergency unit at around 6:30 am, only to reportedly pass away at about 1:30 pm. The anger further intensifies as I reflect on the lack of a formal explanation to the grieving family regarding the events leading to their daughter and motherโs tragic end. Equally maddening is the realization that the hospital has yet to extend a visit or condolences to the bereaved family.
Additionally, I wrestled with anger towards God, questioning why such a fate was permitted. I pondered whether our prayers were inadequate or if divine favor was absent, allowing this exceptional woman to meet her untimely demise due to sheer carelessness.
Today I am still enraged that ย Maryโs three precious daughters are robbed of their mother. I am enraged at the system that does not hold medical professionals accountable for medical negligence/incompetence. I am enraged that more families have the same, or similar stories to tell.ย This article is borne out of that rage .
What is Medicalย Negligence/Malpractice?
Medical negligenceย is a medical practitionerโs failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances.It isย professional negligence by act or omission by a health care provider in which care provided deviates fromย accepted standards of practiceย within their field, leading to patient harm, injury or even death.ย Medical negligence occurs when a health care professional or provider fails/neglects to provide appropriate action or gives substandard treatment.ย This can stem from diagnostic errors, faulty treatment, subpar post-treatment care, or negligence in health management, often ignoring or omitting pertinent patient history.
Negligence in law ordinarily implies a failure toย do some act, which a reasonable man in theย circumstance will do; thus medical negligence constitutes an act or omission by a medical practitioner which falls below the accepted standard of care resulting to injury or death of the patient.ย A hospital, doctor, or other health professional is expected to provide a certain standard of care. When they fall short of this expectation, then the patient is at the receiving end. This can be a result of an error in diagnosis, treatment, poor aftercare, or health management.
Medical negligence is hinged on the tortious principle of negligence as propounded by Lord Atkin in the 1932 case ofย Donoghue V. Stevenson.ย This case established a general duty to take reasonable care to avoid foreseeable injury to another. Therefore, to establish a case in negligence, it must be shown that a duty of care was owed; there had been a breach of that duty; and that damage or injury was suffered as a direct result of a breach of the duty owed.
The following can be said to be the duty owed by a doctor to his patients:
โขย Duty to provide adequate counseling
โขย Duty to warn patientsย of the likely side effects of treatment and the risk thereof
โขย Duty to carry out proper diagnosis
โขย Duty to administer proper treatment
โขย Duty of emergency medical service
โขย Duty to obtain consentย and;
โขย Duty to respect privacy and confidentiality
A breach of the above-mentioned duties will amount to a breach of the duty of care owed. It is also pertinent to state that some of the examples that can give rise to medical negligence include:
โขย Failure to refer a patient in good time.
โขย Making a mistake in treatment. E.g., amputation of the wrong limb, carelessness that result in termination of a pregnancy, prescribing the wrong drug.ย In the Nigerian Supreme Court decision ofย University of Nigeria Teaching Hospital Management Board and Others v. Hopeย Nnoli, Mr. Hopeย Nnoli, was the only qualified chemist working with the U.N.T.H., an unqualified pupil chemistย Nwuzor, was undergoing internship with Hopeย Nnoli. On 20th February, 1989, Mr.ย Nwuzorย compoundedย chloroquinesyrup, which caused the death of children aged between one and four years. A post mortem examination conducted on the bodies of the children confirmed that the cause of death was theย chloroquineย syrup. There was a public outcry and the Management Board of Teaching Hospital conducted an investigation to ascertain the person or persons involved or responsible for the overdose. It was Mr.ย Nnoliย and Mr.ย Nwuzorย who were found liable in negligence.
โขย Incorrect diagnosis:ย Inย University of Ilorin Teaching Hospital v.ย Akilo, it was held that a Medical Practitioner in the Appellantโs employment would be liable in negligence if without due care and skill resulting in error of treatment, he, for example, describes fractures as dislocations and dislocations as fractures
โขย Failure to communicate treatment effects or risks associated therein.
โขย Retention of objects in operation sites.
โขย Failure to attend to a patient or give prompt attention:ย Inย Ibokweย v. UCHย Boardย of Management, the deceased was admitted into the defendantโs hospital as an inpatient in the maternity ward of the defendant hospital. She was diagnosed with post-natal psychosis after delivery. On the same day she gave birth, she jumped from the fourth floor of the hospital and died. The hospital was held liable because the deceased after being diagnosed of mental disturbance was not closely watched by the member of staff in the hospital.
โขย Incompetent assessment of a patient:ย Inย Chinย Keowย v. Government of Malaysia,ย a doctor failed to make any inquiry about the medical history of a patient, which led to her death within one hour of being injected with penicillin. The lords of the judicial committee of the Privy Council overturned the decision of the federal high court of Malaysia and noted that the doctor failed in his duty to make an appropriate inquiry before causing the penicillin injection to be given which was the cause of the death ofย the deceased. Had any inquiry been made, he would have been aware that the deceased had previously suffered an adverse reaction due to an injection, which led to an endorsement of her out-patient card of the warning โAllergic to Penicillinโ. The doctor was held liable for negligence.
โขย Improper administration of the injection.
โขย 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.ย 0 In the case ofย Okekearuย V.ย Tanko, the Supreme Court in Nigeria emphasized the need to obtain direct consent from a competent patient. A tort of battery was made out against a medical practitioner who amputated the injured patient, aย 14-year-old boy, without obtaining consent from the boy. It was held that the doctor was liable for medical negligence.
โขย Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.
โขย Failure to see a patient as often as his medical condition warrants or to make proper notes of the practitionerโs observations and prescribed treatmentย during such visits or to communicate with the patient or his relation as may be necessary with regards to any developments, progress or prognosis in the patientโs condition.ย Chinย Keowย v. Government of Malaysiaย (Supra).
In Nigeria, medical negligence is one of the leadingย causes of death, yet most times it goes unreported because very few people make any formal complaint or sue. The reason is not far-fetched: in the pursuit of justice for victims of medical negligence, navigating the legal system can prove to be a daunting andย arduous journey. Access to justice is a fundamental right, yet many victims face significant legal barriers that hinder their ability to seek redress for the harm they have suffered; this is so particularly in developing countries, where healthcare systems may face resource constraints, inadequate regulations, and limited access to legal remedies.ย
This articleย closely examines the legal rights and remedies available to a patient who has been a victim of medical negligence,ย delves into the unique legal hurdles and issues faced by victims of medical negligence in Nigeria, explores potential reforms to ensure better patient care and accountabilityย and highlights the crucial role of pro bono legal services and legal aid organizations in bridging the gap to justice.
LEGAL FRAMEWORK OF MEDICAL NEGLIGENCE
Laws Governing Medical Ethics
The Medical and Dental Practitioners Act Cap M8 (the Act) 2004 is the principal law regulating the medical profession in Nigeria. This Act in Section 1, established the Medical and Dental Council of Nigeria (MDCN), which provides for the registration of medical and dental practitioners. The MDCN inย furtherance of its statutory functions as provided for in Sectionย 1 (2)(c)ย of theย Medicalย and Dental Practitioners Act (MDPA),codified the rules of professional conduct for Medical and Dental Practitioners in its Code of Medical of Ethics in Nigeria (2008). The code lays down the standards of acceptable medical andย dental practice in Nigeria. Rules 26 to 70 of the Code consists of the acts that falls under the infamous conduct in a professional respect and the list is not exhaustive. These acts are improperly procuring or attempts to procure abortion, euthanasia or mercy killing, indulge in the use of alcohol, dangerous drugs, or attend to patients under the influence, committing adultery, maintaining improper association with patients, and so on
The Act also established the Medical and Dental Practitioners Investigating Panel (the Panel) and the Medical and Dental Practitioners Disciplinary Tribunal (the Tribunal). The Panel is charged with carrying out preliminary investigations of any allegation of infamous conduct in professional respect made against a medical practitioner, and where such allegations have merit, the Panel forwards the case to the Tribunal for trial.
Globally, Medical practitioners are governed by The Hippocratic Oath, ethical guidelines which are historically taken by physicians summarily pledges to serve humanity to the best of their ability and without discrimination of any sort and without breaching patients confidentiality. Another code governing medical doctors is the International Code of Medical Ethics (The Declaration of Venice 1983).
LIABILITY OF MEDICAL NEGLIGENCE
When a medical practitioner fails to fulfill their obligations as required, the matter of liability comes to the forefront. Victims of medical negligence possess the option to lodge a complaint based on criminal law or initiate a legal proceeding for civil wrongdoing, or even opt for the complaint procedure outlined in the Act.
Criminal Liability in Cases of Medical Negligence
In the gravest situations, victims of medical negligence have the avenue to seek recompense through criminal law. Particularly, if the negligence is of such magnitude that it leads to the patientโs permanent disability or demise, the practitioner might face charges of gross negligence amounting to a crime against the State. In the event that such disregard for the duty of care culminates in the patientโs death, a medical practitioner can potentially be held accountable for manslaughter.
Moreover, depending on the nature of their actions during their course of duty, medical practitioners can potentially be held liable for other offenses as well.ย Inย Denloyeย V. Medical Practitioners Disciplinary Committee,ย the court stated that where the nature of the act or omission of a medical practitioner amounts to a crime, the regular law court must determine the criminal aspect of it before liability is determined under the Medical and Dental practitioners Act with respect to misconduct or infamous conduct.
The criminal code provides in ย Section 303ย that โIt is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health to have reasonable skill and to use reasonable care in doing such act and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.โย The court also held inย R vย Akereleย where a medical practitioner who applied overdose on a drug on a number of children, which led to their death, was held to have been criminally negligent and accordingly convicted for manslaughter. It goes, therefore, to say that where a medical practitioner shows disregard for a risk that clearly endangers the patient, shows awareness of a risk yet chooses to take it, makes an effort to avoid a recognized risk, but does so with such extreme neglect that it merits punishment,ย Inattentionalbehaviors or a failure to avoid a major risk that goes beyond simple negligence, such a doctor may be found guilty of criminal negligence
If there is a breach of duty of care that results to the death of a patient, a medical practitioner can be liable for murder underย Section 319 of the Criminal Codeย and Section 221 of the Penal Codeย and the penalty for murder is a death sentence. For a person to be liable for murder, it must be proved that by his act or omission, he intended to cause death or grievous bodily harm.
Section 343 (1) (e) of the criminal code further provides that:
โAny person who in the manner so rash or negligent as to endanger human life or to be likely to cause harm to any other person giving medical or surgical treatment to any person whom he has undertaken to treat is guilty of misdemeanor and is liable to imprisonment for one yearโ.
It is important to note that the professional responsibility of the medical practitioner does not exempt the medical practitioner from either criminal or civil liability. Hence, a doctor who breaches his duty of care may be liable to face disciplinary actions before the Medical and Dental Practitioners Disciplinary Tribunal, as well as face criminal actions where the case warrants and civil action at the instance of the injured patient or his family. This stance was confirmed by the Supreme Court in the case ofย Olowoย V. Nigerian Navyย โwhere the Court held that it will lead to an absurdity to hold that only the Medical and Dental Practitioners Disciplinary Tribunal have the jurisdiction to the exclusion of any other Court or tribunal to try a Medical Practitioner for ethical breaches which caused injuries to his client.โ
Civil Liability in Cases of Medical Negligence
Initiating Legal Action in the High Court
In order to establish civil liability concerning medical negligence, the level of negligence that prompts a civil lawsuit must be that of standard tortious negligence. This can be substantiated when all elements of the three tests are present, encompassing: the medical practitionerโs owed duty of care to the patient; the breach of this duty of care; and the patientโs sustained damages as a direct outcome of the breach. Additionally, the burden of proof rests with the claimant, who must provide evidence demonstrating negligence on the part of the medical practitioner.ย Inย R V Batemanย the court explained that, โif a person holds himself out as having special skill and knowledge and he is consulted, as having such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient or client to use due caution, diligence, care, knowledge and skill in administering treatment.โ
Initiating a civil action for negligence can potentially lead to the emergence of vicarious liability. In scenarios where the negligence stems from the actions of hospital personnel during the execution of their duties, the hospital itself may incur vicarious liability. This stems from the overarching principle that an employer bears responsibility for its employeeโs actions conducted within the scope of their employment. This foundational tenet was acknowledged in the case ofย Ibokweย V UCH Board ofย Management.ย In this case, Irwin J. ruled that a hospital authority is accountable for the deeds or omissions of its entire staff, regardless of their roles as physicians, doctors, nurses, or other employees.
Furthermore, a patient who suffers harm as a result of a healthcare providerโs negligence may file a medical negligence lawsuit against the doctor to recover damages. ย An aggrieved patient can proceed to the High Court to sue for negligence and to claim damages.
REMEDIES UNDER MEDICAL NEGLIGENCE
Remedies are a means at which a court enforces a right, gives orders and impose a penalty. In cases of medical negligence, remedies exist inย favourย of the patient both statutorily andย under case law. These remedies are: an injunction, specific restitution, damages, dismissal or withdrawal of certificate and prohibition. However, before the claimant can be entitled to these remedies, he/she must do the following:
i.ย State the ingredients of the negligent and back same with evidence
ii.ย Prove the medical practitioner owed a duty of care, and the duty of care was breached which resulted in damages.
Complaint filed with the Medical and Dental Council of Nigeria
As earlier stated, the medical profession in Nigeria is regulated by the MDCN and there are disciplinary bodies including the Panel and the Tribunal. The Panel is charged with carrying out preliminary investigations of any allegation of infamous conduct in professional respect made against a medical practitioner, and where such allegations have merits, the Panel forwards the case to the Tribunal for trial. Further to this, the Tribunal has the power to doย three things when the medical practitioner is found guilty of infamous conduct in any professional respect, in line with the provision of Section 16(2) of the Act, the Tribunal can:
1.ย Strike the personโs name off the registrar;
2.ย Suspend a doctorโs license for a period not exceeding six months;
3.ย Admonish a doctor.
It is noteworthy that a medical practitioner has a right to appeal to the court of appeal against the decision of the Tribunal. Also, the professional responsibility of the medical practitioner does not exempt him or her from either criminal or civil liability. Hence, a doctor who breaches his duty of care may be liable to face disciplinary actions before the Tribunal, as well as face criminal actions where the case warrants it or a civil lawsuit.
Furthermore, an action for medical negligence requires stricter proof, however, any medical malpractices or errors, which may fall short of being proved as medical negligence may be instituted as an action for a breach of fiduciary relationship or contract, or be instituted as an action for the enforcement of fundamental human rights under the principle of patientโs autonomy due to a failure to duly inform the clients on all the available treatment options.
Summary of appropriate steps to take in cases of medical negligence
After all is said and done, what are some of the options that are available to patients when cases of medical negligence occur?
a.ย A report can be made at the Police Station who can prosecute where investigation reveals gross negligence or where death has resulted from such negligence.
b.ย A complaint can be filed with the Medical and Dental Council of Nigeria for appropriate redress. The Medical and Dental Practitioners Act provides for an Investigation Tribunal and where a prima facie case is established, a Disciplinary Tribunal. Thus, Medical Practitioners who are found guilty of gross negligence are liable to:
i.ย Suspension or a period of six months; or
ii.ย Having his name struck off the medical or dental register, as the case may be.
c.ย Patients can also seek legal redress through a Court of law by filing civil claims for tortuous liability and a breach of duty of care.
d.ย Apart from Litigation, another option available to patients is exploring other means of alternative dispute resolution through Arbitration or Mediation. Alternative Dispute Resolutionย (ADR) is advantageous to patients, who cannot withstand the long, rigorous court process or do not have the resources to present convincing expert evidence in court: itย greatly reduces cost and circumvents lengthy law suits.ย The success of law suits is not always guaranteed due to challenges such as the unwillingness of doctors to give expert reports in cases of Medical Negligence; however settlement can be a preferred and outcome based solution where criminal liability is not involved.ย Nonetheless, exploring these options do not foreclose the patients constitutionally guaranteed right to trial.
MEDICAL NEGLIGENCE IN NIGERIA: LEGAL CHALLENGES AND SOLUTIONS
Medical negligence is a pressing issue in Nigeria, with significant legal challenges that need to be addressed. The occurrence of medical negligence and the subsequent litigation process present complex hurdles within the Nigerian legal system.ย This section sheds light on the legal challenges associated with medical negligence in Nigeria and proposes potential solutions to improve the current situation.
The legal challenges surrounding medical negligence in Nigeria are multifaceted and require careful consideration. Some of the key challenges include:
1.ย Inadequate legal framework:ย
Most developing countries lack robust legal frameworks specifically addressing medical negligence, leaving victims with limited legal recourse. Nigeria is no different. The existing laws and regulations pertaining to medical negligence are insufficient to effectively address the complexities of modern healthcare practices.ย This can lead to difficulties in establishing liability and obtaining compensation for victims of medical negligence.
Solution: Law reform:ย There is a need for comprehensive law reform to update and strengthen the legal framework surrounding medical negligence in Nigeria.ย This may involve enacting new legislation or amending existing laws to provide clearer guidelines and standards for healthcare providers.
2.ย Identifying Legal Hurdles: The Burden of Proof and High Litigation Costs
In medical negligence cases, the burden of proof lies with the claimant, requiring them to demonstrate that the healthcare providerโs actions fell below the standard of care, and this breach of duty caused their injuries or worsened their condition. The burden of proof can be exceptionally challenging for victims, as medical malpractice cases often involve complex medical issues to establish causation and require expert medical testimony.
Solution:ย To enhance access to justice for victims, legal reforms may be considered to address these barriers. One such reform is revising legal standards for burden of proof in medical negligence cases by shifting the burden of proof to the defendant, the healthcare provider, to demonstrate that they adhered to the standard of care. This approach recognizes the information asymmetry between patients and medical professionals and places the onus on the party with superior knowledge and expertise.ย
By adopting a โreverse burden of proofโ approach, the legal system can level the playing field for victims, making it easier for them to seek justice when they have suffered harm due to medical negligence. It also makes the legal process more accessible for victims.
Benefits:ย Shifting the burden of proof can enhance victimsโ ability to seek redress by easing the challenge of proving negligence, thereby promoting accountability among healthcare professionals.
3.ย High Litigation Costs
As explained above, discharging the burden of proof requires substantial evidence, expert witnesses, and thorough legal representation, all of which can be financially burdensome for victims and their families.ย
Additionally, the costs of litigation, including court fees, expert fees, and attorney fees, can be prohibitively high. This poses a significant barrier to justice, especially for those without adequate financial resources. This legal barrier makes it difficult for victims to establish negligence and seek compensation and can discourage victims from pursuing claims.
Solution:ย Alternative dispute resolution methodsย like mediation and arbitration can offer more cost-effective and expeditious pathways to resolution. These processes allow for open dialogue between parties, fostering opportunities for early settlement and reducing the emotional toll on victims and their families. Mediation and arbitration provide a less adversarial environment, which can be particularly beneficial for patients seeking closure and emotional healing while still holding healthcare providers accountable.
4.ย Limited access to justice:ย
Many individuals in Nigeria face barriers to accessing justice, including financial constraints and inadequate legal awareness among the population further exacerbates the issue, as patients may not be aware of their legal rights or how to seek redress for medical malpractice.ย This can prevent victims of medical negligence from seeking legal recourse and obtaining the compensation they deserve.
Solution: Improved access to justice:ย Efforts should be made to enhance access to justice for victims of medical negligence. This can be achieved through legal aid programs, public awareness campaigns, and the establishment of specialized courts or tribunals to handle medical negligence cases.ย Enhancing legal literacy and awareness programs can empower patients to understand their rights and seek legal recourse in cases of medical negligence. Collaborating with NGOs and legal aid organizations can support these efforts, making legal information accessible to vulnerable populations.
5.ย Inadequate Healthcare Regulations
Weak healthcare regulations and oversight may hinder the detection and prevention of medical negligence. Lack of clear guidelines and accountability mechanisms can contribute to substandard care.
Solution:ย Strengthening healthcare regulations and monitoring mechanisms is essential to address medical negligence effectively. Governments should invest in regulatory bodies to ensure compliance with quality standards and investigate reported incidents thoroughly.
Regulatory authorities play a pivotal role in overseeing healthcare standards and ensuring accountability in medical practice. As guardians of public health and safety, these bodies bear the responsibility of upholding healthcare quality, monitoring medical professionals, and addressing cases of medical negligence. Regulatory authorities must carry out their role in safeguarding patients and maintaining high standards of healthcare.
They must set and enforce healthcare Standards that medical professionals must adhere to while providing patient care. These standards encompass various aspects, including clinical protocols, patient safety measures, and ethical guidelines.
By setting clear and comprehensive healthcare standards, regulatory bodies provide a framework against which medical professionalsโ actions can be measured. Compliance with these standards ensures accountability in medical practice, reducing the likelihood of medical negligence.
Some of these regulatory bodies could provide rules for:
a.ย Mandatory Incident Reporting
Requiring healthcare facilities to report medical errors and incidents promptly to regulatory authorities can promote transparency and facilitate investigations.
Benefits:ย Mandatory incident reporting enhances accountability and helps identify trends in medical negligence cases, enabling targeted improvements in patient safety.
b.ย Whistleblower Protectionsย (Cultivating a Culture of Accountability)
In some developing countries, a culture of silence and fear may deter healthcare providers from reporting medical errors or acknowledging instances of negligence. This lack of accountability can impede improvements in patient safety.
Solution:ย Encouraging a culture of transparency and accountability in healthcare settings is crucial. Implementing non-punitive incident reporting systems can create a safe environment for healthcare providers to report errors and learn from mistakes.
Strengthening whistleblower protections for healthcare professionals who report medical negligence can encourage a culture of transparency and accountability.
Benefits:ย Whistleblower protections encourage the disclosure of malpractice and foster an environment where healthcare providers are more likely to report incidents without fear of retaliation.
6.ย Scarce Healthcare Resources
Limited resources, including medical personnel, equipment, and facilities, can strain healthcare systems in developing countries. Overburdened healthcare providers may face challenges in delivering adequate care, potentially leading to medical errors and negligence.
Solution:ย While resource constraints cannot be entirely eliminated, healthcare systems can focus on improving training and professional development for medical staff. Emphasizing continuous education and best practices can enhance patient safety and reduce the risk of medical negligence.
7.ย Extended litigation periods and emotional burdens on plaintiffs and medical practitioners:
Medical negligence litigation can have significant emotional and psychological impacts on both the plaintiffs and the healthcare providers involved, especially due to the protracted nature of litigation.ย The adversarial nature of legal proceedings and the potential reputational damage can further exacerbate these burdens.
Solution:ย Alternative dispute resolution mechanisms:Encouraging the use of alternative dispute resolution mechanisms, such as mediation or arbitration, can help expedite the resolution of medical negligence cases and reduce the burden on the court systemย without the need for prolonged court battles.
Benefits:ย ADR can save time and costs for both parties and foster amicable settlements that address the interests of all involved, leading to a more satisfactory resolution.
8.ย Poor educational training of Medical Personnel
Solution:ย Professional training and accountability:Strengthening the training and accountability of healthcare professionals is crucial in preventing medical negligence. Continuous professional development programs and robust regulatory mechanisms can help ensure that healthcare providers adhere to the highest standards of care.
Other reforms that could help prevent medical negligence include:
1. Expedited and Specialized Medical Negligence Courts
Establishing dedicated medical negligence courts with specialized judges and personnel can expedite case resolution. These courts would possess the expertise to understand complex medical issues and evaluate negligence claims efficiently.
Benefits:ย Timely adjudication of cases can reduce the emotional and financial burdens on victims, while specialized courts can ensure fair and informed decisions.
2. Caps on Non-Economic Damages
Implementing caps on non-economic damages, such as pain and suffering, can limit excessive payouts and provide predictability in medical negligence claims.
Benefits:ย Caps on non-economic damages can help prevent exorbitant financial burdens on healthcare providers and insurance systems while ensuring adequate compensation for victims.
3. Public Awareness and Education
Raising public awareness about medical negligence, patient rights, and legal remedies can empower patients to recognize and address potential malpractice. Educated patients can make informed decisions about their healthcare and seek redress promptly when faced with medical negligence.
Regulatory authorities have a duty to communicate with the public, promoting transparency about healthcare standards, patient rights, and avenues for reporting medical negligence. Public awareness campaigns and transparent reporting mechanisms empower patients to report medical negligence and hold healthcare providers accountable for any lapses in care.
Steps to Mitigate the Risk of Falling Victim to Medical Negligence
The issue of medical negligence isnโt unique to Nigeria, yet in my perspective, the widespread occurrence of this predicament signifies a symptom of a much deeper, systemic ailment: complete institutional breakdown. When public hospital doctors must tend to as many as 120 patients daily, the inclination to dismiss symptoms as minor in order to swiftly proceed to the next case is heightened. Surgeons operating without proper equipment in makeshift theaters are more prone to committing errors. In facilities where profit trumps patient welfare, physicians may resist reassessing diagnoses. Given the virtual assurance that they can evade consequences, motivation for improvement wanes.
As regulatory bodies grapple with fulfilling their mandates and uplifting healthcare standards, how can one safeguard themselves?
Preemptive Hospital Selection:ย Research and choose a reputable hospital for yourself and your family well before illness strikes. Especially if feasible, opt for a private hospital. Ensure the institution you entrust your health and resources to is steadfast in fulfilling its duty of care to you. Compromising on health is never advisable.
Empower Yourself:ย Your intelligence and self-awareness about your own body are invaluable. Never allow any doctor, regardless of their credentials, to undermine the validity of your concerns. Solicit second, third, fourth opinions โ gather as many perspectives as possible.
Inquisitive Approach:ย Remember the adage, โNo question is foolish.โ Embrace this principle each time you step into a medical facility. Donโt hesitate to ask questions, seeking clarity on all matters relevant to your health.
Company in Healthcare:ย Whenever possible, attend medical appointments with a trusted adult. In cases of emergencies where immediate attendance is necessary, call upon a friend or relative to meet you there. An adult companion possesses the authority to hold medical staff accountable and ensure they fulfill their responsibilities diligently, unlike a minor. Additionally, adults can promptly identify instances of medical negligence and report them.
Pursuit of Resolution:ย Holding negligent doctors accountable diminishes the overall incidence of such cases. The High Courts and the Medical and Dental Council of Nigeria (MDCN) are vested with the authority to discipline errant medical practitioners.
Amidst the ongoing challenges, adopting a proactive stance by engaging in meticulous research, being assertive, seeking knowledge, seeking support, and actively seeking justice, individuals can navigate the healthcare landscape with heightened vigilance and empowerment.
Conclusion
Medical negligence can have devastating consequences for patients and their familiesย and access to justice is paramount in their journey to healing and recovery. It is thereforeย imperative that Nigerians are fully informed of their legal options for pursuing claims against careless medical professionals.
While the laws provide for a reporting system with the Medical and Dental Association and the courts of law are thereย for victims to file civil suits, most times there are several barriers which hinder litigants from getting justice. Overcoming theselegal barriersย whichย hinder victimsโ pursuit of justice is essential for a fair and equitable society. By addressing the burden of proof, reducing litigation costs, exploring alternative dispute resolution methods, and leveraging pro bono legal services, the legal system can become more accessible and responsive to the needs of medical negligence victims. Through these collective efforts, we can foster a legal environment that empowers victims and ensures their rights are protected, promoting justice, accountability, and ultimately, better patient care.
Moreover, it is essential to highlight at this juncture thatย even though an action for medical negligence requires stricter proof, any medical malpractice or error, which may fall short of being proved as medical negligence, may be instituted as an action for a breach of fiduciary relationship or contract, or be instituted as an action for the enforcement of fundamental human rights under the principle of patientโs autonomy due to a failure to duly inform the clients on all the available treatment options.ย It is also imperative to note that not every action or omission by a medical practitioner will lead to medical negligence; each case would depend on its peculiarity.
Medical negligence claims, while distressing for patients and healthcare providers, can serve as a powerful impetus and catalyst for transformative change within healthcare systems, leading to safer and more patient-centered healthcare experiences for all. By using these cases as opportunities for learning, incident reporting, and implementing best practices, healthcare institutions can prioritize patient safety and enhance the quality of care provided. Certainly, if medical professionals are held accountable for their negligent actions, the standard of treatment may improve in Nigeria.
END NOTES
BOOKS
Garner; Black lawโs Dictionary, Page 971
Malemi; E. Law of Tort (2ndย Ed. Lagos: Princeton Publishing Co; 2013) @219.
CASE LAW
Chinย Keowย v. Government of Malaysiaย [1984] 1 WLR 634
Denloyeย V. Medical Practitioners Disciplinary Committee[1968] ALL N.L.R 308
Donoghue V. Stevensonย (1932) AC, 562
Ibokweย v. UCH Board of Managementย [1961] WNLR 173
Olowoย V. Nigerian Navy (2011) 18 NWLR (Pt 1279) 659 SC
Okekearuย V.ย Tankoย (2002) 15 NWLR (Pt. 791) 657 S.C
Okoroย v State (1988) 5 NWLR Pt 255
R vย Akereleย (2001) 1FWLR. P.577)ย ย
R V Batemanย (1925) 19 Cr App R 8)
University of Nigeria Teaching Hospital Management Board and Others v. Hopeย Nnoliย [1994] 8 NWLR (Pt. 363) at 407-408 ย
University of Ilorin Teaching Hospital v.ย Akiloย [2002] FWLR (Pt.28) 22867ย
INTERNET ARTICLES
Babafemiย Odunsi, โMedical Negligence and Its Litigation in Nigeriaโย Beijing Law Reviewย >ย Vol.14 No.2, June 2023Medical Negligence and Its Litigation in Nigeria (scirp.org)accessed 30/7/23
Komolafeย Akinlabiย Richard Obafemi (2017) โMedical Negligence Litigation in Nigeria: Identifying the Challenges and Proposing a Model Law Reform Actโ, A Thesis submitted to the Trinity College, Dublin in fulfilment of the requirement of the award of the Degree of Doctor of Philosophyย
Mary-Elizabeth Tumelty, Cambridge Core (2021) โExploring the emotional burdens and impact of medical negligence litigation on the plaintiff and medical practitioner: insights from Irelandโ Published online by Cambridge University Press. <https://www.cambridge.org/core/journals/legal-studies/article/exploring-the-emotional-burdens-and-impact-of-medical-negligence-litigation-on-the-plaintiff-and-medical-practitioner-insights-from-ireland/18FB4414873248B4EEBFC730E9E363D0>ย accessed 37/7/23
Mary-Elizabeth Tumelty, Cambridge Core (2021) โExploring the emotional burdens and impact of medical negligence litigation on the plaintiff and medical practitioner: insights from Irelandโ Published online by Cambridge University Press.ย https://www.cambridge.org/core/journals/legal-studies/article/exploring-the-emotional-burdens-and-impact-of-medical-negligence-litigation-on-the-plaintiff-and-medical-practitioner-insights-from-ireland/18FB4414873248B4EEBFC730E9E363D0ย accessed 30/7/23
Ogundareย Bisola, SSRN, (2019) MEDICAL NEGLIGENCE IN NIGERIA: A QUICK GUIDE ON LIABILITIES AND REMEDIES ย https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3476524ย accessed 31/7/23
Olawunmiย Ojo, (2022) โNigeria:ย Medical Negligence In Nigeria: The Legal Remedies <https://www.mondaq.com/nigeria/healthcare/1254460/medical-negligence-in-nigeria-the-legal-remedies?login=true&debug-domain=.mondaq.com accessed 29/7/23
Oludamilola Adebola Adejumoย ,ย Oluseyi Ademola Adejumo(Pub. Med) โLegal perspectives on liability for medical negligence and malpractices in Nigeriaโย Panย Afrย Med J.ย 2020 Feb 17;35:44.ย doi: 10.11604/pamj.2020.35.44.16651. https://pubmed.ncbi.nlm.nih.gov/32499859/ ย accessed 1/8/23
Resolution Law Firm,ย (2020), Nigeria:ย Liability And Proof Of Medical Negligence In Nigeriaย https://www.mondaq.com/nigeria/professional-negligence/1004164/liability-and-proof-of-medical-negligence-in-nigeriaย accessed 31/7/23
STATUTES
s. 303, Criminal Code, Cap C38 LFN, 2004
Section 319 of the Criminal Code Cap C38: Laws of the Federation of Nigeria 2004
Medical and Dental Practitioners Act (MDPA), CAP M8, LFN 2004,ย
s.221, Penal Code Cap 89 Laws of Northern Nigeria 1963.
About the Author:
Anne Uruegi Agi, LL.M, is an accomplished legal practitioner with 18 years of experience. She holds an LL.M in Human Rights and Corporate Legal Practice from the University of Ibadan and has recently completed her Ph.D. in Intellectual Property Law.
She is a member of the General Council of the Bar and the Chief Rapporteur of the NBA.
She is a member of the NBA Editorial Board and the Editor in Chief of the NBA SPIDEL Editorial Committee.
Ms Agi currently serves as a dedicated law lecturer at the University of Calabar. She is a fervent advocate of space law and policy, working towards promoting space science education, especially among young Africans. She co-founded LEARNSPACE FOUNDATION, an NGO focused on space education and awareness. Anne is also a prominent blogger on space-related topics and has represented Nigeria at international conferences, including the International Astronautical Congress. Her dedication extends to social causes, including gender equality and youth inclusion in the African space industry. She is affiliated with various professional organizations and is actively involved in the Nigerian Bar Association.
In addition to her legal qualifications, Anne holds a Certificate in Space Law and Policy from the International Academy of Space Law (IASL), Russia.
She is an active member of various professional organizations and associations, including the Nigerian Bar Association, Women in Aerospace Community, International Federation of Women Lawyers (FIDA), African Women Lawyers Association (AWLA), NBA Women Forum (NBAWF), and the Advocacy Committee of the Womenโs Forum.