Feb 23, 2017

Medical Negligence In Nigeria: Addressing The Public On Its Scope And The Resultant Legal Implications


INTRODUCTION

It is not uncommon to see this quote on a hospital building “We Care, God Heals”.

While the accuracy or otherwise of that statement is not in contention, it is pertinent to ponder on how much “care” medical practitioners owe their patients before the healing is left in the hands of the most Supreme Being. Are Medical Doctors mere tools in the hands of the creator? So much so that regardless of the magnanimity of their efforts, high hopes should be kept at bay?


The reality that exists today is that the average Nigerian, and surprisingly even the above Nigerian has only a vague knowledge of the existence /or enforceability of the Laws Governing Medical Negligence in Nigeria.

Do we have to accept every mishap as the will of God? Is it the will of God that a stage 4 breast cancer patient is diagnosed of a big and unusual boil until she writhes in pain before suffering an untimely, painful and perhaps avoidable death? These things are not news and I could write on about numerous examples while we lament about how bad our Country is.

This Article however seeks to equip the average Nigerians with useful information on steps to take in dealing with health service providers.

DEFINITION OF MEDICAL NEGLIGENCE
A definition of the term Medical Negligence is apt at this juncture. Medical negligence can be defined as improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist or other health care professional. * (the free dictionary by farlex)legal-dictionary.thefreedictionary.com

It is important to note that whilst medical negligence is generally used in reference to Doctors, other health care providers such as nurses, pharmacists, laboratory attendants and any other health care provider can be liable for medical negligence.

WHAT AMOUNTS TO MEDICAL NEGLIGENCE
The Rules of Professional Conduct for Medical and Dental Practitioners also known as the Code of Medical Ethics highlights some instances that would amount to Professional  Negligence. Some of these are:

(A)  Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so.
(B)  Manifestation of incompetence in the assessment of a patient.

(C) Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them. 

(D) 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.

(E) Failure to obtain the consent of the patient (informed or otherwise) before proceeding on any surgical procedure or course of treatment, when such a consent was necessary.

(F) Making a mistake in treatment e.g. amputation of the wrong limb, inadvertent termination of a pregnancy, prescribing the wrong drug in error for a correctly diagnosed ailment, etc.

(G) Failure to refer or transfer a patient in good time when such a referral or transfer was necessary

H) Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.

(I) Failure to see a patient as often as his medical condition warrants or to make proper notes of the practitioner's observations and prescribed treatment 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 patient's condition.

LAWS GOVERNING MEDICAL ETHICS
There are various laws governing medical practice in Nigeria and one of such Laws is the Medical and Dental Practitioners Act (CAP M8) which is designed to regulate and govern medical ethics in Nigeria and rules of professional conduct for Medical and Dental Practitioners.  Another one is the Rules of Professional Conduct for Medical and Dental Practitioners.

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 one is the International Code of Medical Ethics (Declaration of Venice 1983).

Despite all these, it is a glaring reality that has come to abide with us that poor patient care, lack of proper diagnosis, unsafe drug options, and limited treatment options are some of the travails that affect Doctor/Patient relationships.
A PRACTICAL EXAMPLE
To elucidate further and put things in perspective, here is an example:
A pregnant woman falls into labour and is taken to a popular Government Hospital and is informed that she will have to undergo a caesarean section. 4 hours later, the woman is referred to another hospital because of the unavailability of the Doctor on duty. On getting to the referred hospital, the doctor on duty informed the patient and her husband that there was no bed space. After much pleading, she was eventually admitted and sedated despite protests from her husband against the sedatives. The surgery was not carried out until the following day and the baby, following the operation did not cry after delivery but was breathing and moving her limbs.

It was discovered several months down the line that the baby was asphyxiated during birth and the baby was later diagnosed as suffering from cerebral palsy.

From this example, several things can be deduced.
i.  The combined lack of adequate efforts of the various Doctors that were in one way or the other involved in the birth of that child does not meet the criteria of standard medical practice required.

ii.    It is apparent that there was negligence during antenatal, delivery and post operative care.

The resulting consequence of all this is a five year old child suffering from cerebral palsy a condition which cannot be cured but only managed, bitter parents whose lives have been altered forever, and a prolonged Trial that may or may not have a favorable outcome. This is the story of thousands of people with different names, different facts and different circumstances who have something in common: an undeniable case of medical negligence and a struggle for their voices to be heard.

AVAILABLE OPTIONS
After all is said and done, what are some of the options that are available to patients?
a.     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. 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) Suspension or a period of six months; or
(ii) Having his name struck off the medical or dental register, as the case may be.
c.      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.    Apart from Litigation, another option available to patients is exploring other means of alternative dispute resolution through Arbitration or Mediation. Alternative Dispute Resolution greatly reduces cost and circumvents lengthy law suits.  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.  Nonetheless, exploring these options do not foreclose the patient’s constitutionally guaranteed right to trial.

SUGGESTIONS
It is imperative to state that it is also advisable to make use of the National Health Insurance Scheme which was established under the National Health Insurance Scheme Act, CAP N42 LFN 2004. The NHIS is aimed at providing quality healthcare in a cost effective way and patients are offered a variety of health care options.

CONCLUSION
I am not unmindful of the fact that we have a lot of progress to make as a nation in providing an enabling environment with modern and innovative equipment to aid medical practitioners in carrying out their duties. I am also not oblivious to the fact that Doctors who are employed in Government hospitals constantly have to demand adequate remuneration.

Notwithstanding, patients should remember that they have rights, the right to ask questions, the right to get second opinions, right to choose their preferred treatment options and a voice to complain.

We may not be able to solve all of our challenges arising from medical negligence, however we can collectively make efforts to make it bearable.


 By- Motunrayo Olaleye
 Legal Counsel at B. Ayorinde & Co. 



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