In 2021, the Medical and Dental Practitioners Council of Nigeria (MDPCN) established a case of “professional misconduct” against three doctors of a Lagos Hospital. This occasioned as a result of the death of a Lagos chef; Peju Ogboma, who died after undergoing surgery at the hospital located in Victoria Island, Lagos
The case of Peju Ogboma is one of many cases of unfortunate and unprecedented acts of medical negligence in Nigeria. This article seeks to discuss the different legal remedies available under Nigerian law for medical negligence in Nigeria
Overview of Medical Negligence in Nigeria
Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation[i]. Medical negligence is a medical practitioner’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances. [ii]
Medical negligence occurs when a health care professional or provider fails/neglects to provide appropriate action or gives substandard treatment that causes harm, injury, or loss of life to the patient.
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.
According to a paper by Bisola Ogundare, empirical work by a researcher shows that 61.69 percent of Nigerian patients feel that medical practitioners in Nigeria are arrogant and careless about their conditions and plights. Also, 33.3 percent of Nigerian patients indicated that their doctor’s treatment had caused them extra injury beyond the ones which took them to the hospital.[iii]
To establish medical negligence, three essential ingredients have to be proved;
- The existence of a legal duty of care
- Breach of that duty of care and;
- Damages suffered as a result of the breach.
According to Ese Malemi[iv], the following can be said to be the duty owed by a doctor to his patients;
- Duty to provide adequate counseling
- Duty to warn patients of the likely side effects of treatment and the risk thereof
- Duty to carry out proper diagnosis
- Duty to administer proper treatment
- Duty of emergency medical service
- Duty to obtain consent[v] and;
- Duty to respect privacy and confidentiality[vi]
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:
- Failure to refer a patient in good time.
- Making a mistake in treatment. E.g., amputation of the wrong limb, carelessness that result in termination of a pregnancy, prescribing the wrong drug
- Incorrect diagnosis
- Failure to communicate treatment effects or risks associated therein.
- Retention of objects in operation sites
- Failure to attend to a patient or give prompt attention
- Incompetent assessment of a patient
- Improper administration of the injection
REMEDIES
The victims of medical malpractice may file a complaint under criminal law, bring a lawsuit for a civil violation, or use the Act’s [vii] complaint process.
Firstly, the criminal code provides that “It 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” [viii]. The court also held in R v Akerele[ix] where a medical practitioner who applied overdosed 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, Inattentional behaviors or a failure to avoid a major risk that goes beyond simple negligence, such a doctor may e found guilty of criminal negligence.
In addition, an aggrieved patient can make a formal complaint before Nigeria’s medical and Dental council (MDCN). In accordance with the provisions of SECTION 16(2) of the Medical and Dental Practitioner’s Act, the MDCN’S tribunal established by SECTION 15(1) of the Medical and Dental Practitioner’s Act has the authority to do three things when the panel finds a Medical Practitioner guilty of infamous conduct in any professional respect;
- order the Registrar to strike the person’s name off the register;
- or suspend a doctor’s license for a period not exceeding six months;
- or admonish a doctor.
Furthermore, a patient who suffers harm as a result of a healthcare provider’s negligence may file a medical negligence lawsuit against the doctor to recover damages. An aggrieved patient can proceed to the High Court to sue for negligence and to claim damages.
CONCLUSION
It is imperative that Nigerians are fully informed of their legal options for pursuing claims against careless medical professionals. Certainly, if medical professionals are held accountable for their negligent actions, the standard of treatment may improve in Nigeria.
[i] Garner; Black Law’s Dictionary, Page 1056
[ii] Garner; Black law’s Dictionary, Page 971
[iii] www.theguardian.ng (Medical Negligence and its Impact on Health Outcome) assessed on the 9th of September, 2022
[iv] Malemi; E. Law of Tort (2nd Ed. Lagos: Princeton Publishing Co; 2013) @219
[v] Rule 19; Rule of Professional Conduct for Medical and Dental Practitioners
[vi] Rule 44; Rule of Professional Conduct for Medical and Dental Practitioners
7. Medical and Dental Practitioner Act, CAP M8 LFN 2004
[viii] Section 303; Cap C38 LFN, 2004
[ix] (2001) 1FWLR. P.577
Written by Olawunmi Ojo for The Trusted Advisors
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