Due to the low level of public enlightenment in Nigeria as to the rights of victims in the event of medical negligence and other professional misconducts, and sometimes because of religious or other social sentiments or prejudices, victims of medical negligence and other professional malpractice seldom institute actions in court for redress. There is therefore a dearth of reported cases emanating from Nigerian courts. There has however been a steady rise in complaints received by the investigating arms of the various professional regulatory bodies which upon establishment of prima facie cases are often charged before the disciplinary organs of the bodies. An appreciable number of decisions of the disciplinary organs like the Medical and Dental Practitioners Disciplinary Tribunal end up in the appellate courts.
Applying the neighbourhood test, there is no gainsaying the fact that the doctor or any other health professional in a health facility is a very close neighbour of the patient who presents in the health facility, to whom the doctor and other health personnel owes a duty of care. This is quite apart from the contractual obligation between the patient and the owner of the health facility, who in many cases in Nigeria, is the doctor himself.
Editor's notes: this post was originally published on www.linkedin.com
Civil and professional negligence are species of the tort of Negligence, although each of them attracts different results. Damages will normally be awarded in favour of the victim of the negligence (or his/her survivors, heirs or legal personal representatives if the victim is deceased) against a tortfeasor in the case of civil negligence, whereas a medical or health personnel adjudged to be guilty of professional negligence would usually be sanctioned by the appropriate disciplinary organ as laid down in the enabling statute. The sanction could be admonition, suspension of the practitioner from the practice of the profession for a specified time or removal or erasure of the practitioner’s name from the professional register, that is to say, prohibiting the professional from the practice of the profession.
It is therefore convenient to use instances of what constitute professional negligence listed in the Code of Medical Ethics in Nigeria 2008 as templates to illustrate medical negligence
TYPES OF ACTS OR OMISSIONS THAT WOULD AMOUNT TO MEDICAL NEGLIGENCE
Rule 29.4 of the Code outlines examples of what acts or omissions constitute professional negligence as follows:-
1. Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so;
2. Manifesting incompetence in the assessment of a patient;
3. Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them;
4. Failure to advise, or proffering wrong advice to a patient on the risk involved in a particular operation or course of treatment, especially if such an operation or course of treatment is likely to result in serious side effects like deformity or loss of organ, or function;
5. Failure to obtain the informed consent of the patient before proceeding on any surgical procedure or course of treatment when such consent was necessary;
6. Making a mistake in treatment e.g. amputation of the wrong limb, carelessness that results in the termination of a pregnancy, prescribing the wrong drug, or dosage in error for a correctly diagnosed ailment, etc;
7. Failure to refer, or transfer a patient in good time, when such a referral or transfer was necessary;
8. Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient;
9. Failure to see a patient as often as his medical condition warrants or to make appropriate comments in the case notes of the practitioner’s observations and prescribed treatment during such visits. It also includes failure to communicate with the patient or with his relatives as may be necessary with regards to any developments, progress or prognosis in the patient’s condition.
The victim of Medical Negligence has a number of options for redress; he may pursue civil claims against physicians or other health care providers for alleged “torts”, that is, breaches of duty that result in personal injury, or file a complaint with the regulatory body (e.g. the Medical and Dental Council of Nigeria). He could also report to the Police who would conduct Criminal Investigation and where the investigation reveals gross negligence, recklessness or wanton disregard for life of the victim, the police can prosecute or forward the case file to the office of the Attorney General of the State for possible prosecution in deserving cases.
The tort of negligence is defined as the omission or failure to do something which a reasonable and prudent man would do or doing something which a reasonable and prudent man would not do. Negligence is the failure to exercise that care which the circumstances demand, i.e. absence of care according to the circumstances. See Ojo v. Gharoro (2006) 10 NWLR (pt.987) 173 @ 234(F-H). It is also defined broadly as the breach of a legal duty to take care, which breach results in damage undesired by the defendant to the plaintiff.
The tort has three elements, viz:-
1. A duty of care owed by the defendant to the plaintiff.
2. Breach of that duty by the defendant.
3. Damage to the plaintiff resulting from the breach.
To establish the existence of a duty of care, the law has laid down the foreseeability test in the popular case of Donoghue v. Stevenson (1932) AC 592 In that case, Lord Atkin formulated the Neighbourhood principle, which enjoins that a person –“must take reasonable care to avoid acts or omission which you can reasonably foresee would be likely to injure your neighbour”. My neighbours are “persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in question”.
Nursing staff, like medical practitioners, owe a duty of care to the patients in their care, although decided cases on nurses liability for negligence are relatively few. But this principle, as applied to medical practitioners has been applied to Nurses in those few cases. A nurse must attain the standard of competence and skill to be expected from a person holding the post. It has also been held that a midwife delivering a child must display the skill of a registered midwife and it is not enough that she attained the standard of the ordinary registered nurse with minimal obstetric experience.
As regards Pharmacists, the cases have established that the standard of care demanded of them is high reflecting their status and their position as having the “last opportunity” to safeguard a patient from a dangerous drug. A Pharmacist does not discharge his duty by dispensing as written on the prescription presented to him. He should recognize and check with the Doctor where a dangerous dosage of a drug is prescribed21.
VICARIOUS LIABILITY OF HOSPITAL AUTHORITIES
The victim of a tort which occurs in the course of the torfeasor’s employment can sue the employer for that tort on the basis of the principle of vicarious liability. Because of the age along distinction between contract of service and contract for services, it was thought that this latitude would not be extended to victims of negligent acts or omission of consultant surgeons and physicians, these being persons with considerable degree of independent judgment, who are virtually free from the control of the Hospital authorities. The celebrated hospital cases have long exploded that erroneous belief. Today, Hospital authorities are vicariously liable for the negligence of their employees be they nurses, physiotherapists, pharmacists, laboratory technologists or even senior consultants.
The only exception is where the consultant does not act as the employee of the hospital or clinic as, for example, where the patient contracts privately with a consultant for necessary treatment or surgery and then contracts separately with the hospital or clinic for nursing and ancillary care. The usual problem in such an instance is that of establishing whether any negligence was the fault of the Consultant or that of the hospital staff. In Roe v Ministry of Health (1954) QB 66 it was held that if one or two persons must have been negligent, they cannot both defeat the Plaintiff by silence or blaming each other.
In the same vein, the mere fact that the medical practitioner or consultant is a part-time employee over whom the Hospital authority has limited power as in the case of the consultants in the Teaching Hospitals in Nigeria who are permanent employees of the Universities, rendering clinical services to these institutions for a stipend called clinical supplementation is not enough to ground a waiver of vicarious liability of the Hospital authority. In the case of Cassidy v Ministry of Health(1951) 2 QB 343 the English Court of Appeal stated that the relevant consideration in such a situation is whether the Doctor was engaged for the purpose of the treatment by the Hospital authority or by the patient. If the patient did not engage the Doctor by himself and consequently did not pay him his fee directly, such a Doctor must still be regarded as an employee of the Hospital authority for whose tort the Hospital authority must be vicariously liable. It follows that there is no clear-cut distinction between full-time and part-time consultants.
The correct position will therefore appear to be that once a Hospital authority has accepted a patient for treatment, it comes under a duty to treat the patient with reasonable care and skill and any breach of that duty is actionable regardless of who may be responsible for that breach.
PROFESSIONAL DISCIPLINE OF ERRING MEDICAL PRACTITIONERS
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.
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 MDPA 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 MDPA, 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
Criminal law does not generally punish negligence. This is because section 24 of the Criminal Code says that no person can be criminally responsible for his unwilled acts or omission or even the accidental consequence of his willed acts. But that section is subject to the express provisions of the Code relating to negligent acts or omission.
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 s.303 of the Code, 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.
His possible defences though are contained in Sections 297 and 313 of the Code. Section 297 provides that a person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, if the performance of the operation is reasonable having regard to the patient’s state at the time and to all circumstances of the case. Section 313 makes the original assailant and not the Medical Practitioner responsible even if death of the victim results from the treatment, provided the treatment was reasonably proper under the circumstances and was applied in good faith.
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. See Section. 16(1) Medical and Dental Practitrioners 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.
On the other hand, some counsel argue 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 the position taken by Counsel who so argue were to be correct, 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.
The matter is more straight forward where criminal prosecution is instituted against the practitioner because conviction by the court is by itself a ground for the Disciplinary Tribunal exercising disciplinary action against the practitioner.
The essence of this article is to draw the attention of the public to incidences of medical negligence and professional malpractice with particular reference to the current approach in tackling these in Nigeria.
It is believed that with more enlightenment on the part of Nigerian citizens and residents as to their right against unfair treatment by medical institutions and practitioners, many cases will spring up in the regular courts in addition to complaints being lodged with the professional regulatory bodies. This will ensure that medical personnel are more careful while carrying out their duties.
Ahmed Adetola-Kazeem is a Counsel at Gani Adetola-Kaseem (SAN) LP
Editor's notes: this post was originally published on www.linkedin.com