By Stanley Maduabuchi Ofoegbu Esq
There is a profession, so rich in principles and substance, devoid of technicalities, noble and revered by members of the society. Practitioners in this field are seen as life givers or savers next to the Almighty God such that, their actions and / or inactions are attributed to the will of God; and not questionable or subject to investigation as many would perceive it to be. This is the medical profession for you. However, the expectations of the society often times are cut short as most medical practitioners fall short of acceptable standard of practice as a result of negligence and trespass to person; causing enormous damage ,permanent disability, rupture and sadly, death of their patient. Since the society cannot afford to be left at the mercies of these negligent medical practitioners, the law is looked upon to as the last hope of the common man for some remedies through the machineries of the courts presided over by judges. Unfortunately, these judges are not trained in the medical sciences but rely on expert opinion and decide on the basis of basic principles of reasonableness and prudence. With the increasing rate of trespass to person, flagrant breach and abuse of relevant laws such as the Constitution of Nigeria, Compulsory Treatment and care of victims of Gunshot Act 2017 among others, unknown scope and limits of the medical practice, little or no performance of the functions of the medical and dental council of Nigeria, patients are beginning to seek redress in court of law. Medical and legal practitioners are also being learned in the concept of medical negligence. While medical practitioners are also being confronted with the problems and risk of being sued in tort for medical negligence and trespass to person, criminal battery in criminal litigation among others, many are not even aware of the bundles of rights accruing to them as patients when accessing medical treatment and hence, the hue and cry of many. What then, is the way out?
This paper is designed to provide an over view and effective solutions to the increasing challenges caused by medical negligence in Nigeria and the world at large. In other words, it seeks to proffer effective remedies to the incidences of medical negligence in the practice of medicine as a way of ensuring good and proper medical standards.
There are many incidences in Nigeria involving medical negligence but only little get to the knowledge of the public. This is due, in no small amount, to poverty, ignorance and illiteracy among patients and to some extent, the level of religiosity and God is in control syndrome of the family members of such patients. Also there is general lack of information and material on the legal rights of patients, who no fault of theirs have fallen victims of medical negligence which includes criminal battery, assault and trespass among others. More so, many of the institution in Nigeria including Law faculties are yet to introduce medical law or jurisprudence into their curriculum. Medical doctors and other health workers are not been taught medical law and its intricacies before graduating and writing qualifying exams. In addition, the herculean evidential burden heaped on them (claimant /victims) in other to succeed is worrisome because proof of medical negligence will normally require an expert opinion in line with section 68 (1) of the Evidence Act 2011 among others. Medical practitioners are also most times not willing to testify against their fellow practitioner and this, has cumulatively led to the general apathy of those patients of medical negligence who clearly understood the concept of medical negligence to sue for damages and compensation for injuries sustained. Therein, lays the problems in developing nation, Nigeria in particular.
This paper examines the concept of medical negligence, types of medical negligence, the implications of medical negligence, the challenge in curtailing medical negligence in medical practice, the roles of medical and dental council of Nigeria in curtailing medical negligence and the way forward.
The Concept of Medical Negligence
The concept of medical negligence connotes the fact that there is a duty of care that is owed to a patient by the medical practitioner and that the said duty of care was breached and resulted into the patient suffering from some degree of damages.
In the relationship of medical professional and patient, several duties of care arise on the part of the medical practitioner towards his patients. Given a normal medical practitioner and patient relationship, devoid of extreme emergencies and other incapacities, the duties of the medical practitioner may be summarized as follows:
Duty to provide adequate counseling
Duty to provide informed consent
Duty to carry out a proper diagnosis
Duty to administer proper treatment
Duty to ensure compliance with relevant laws, rules and regulation regulating the practice of medicine among others.
A breach of any of the above listed duties in relation to the treatment of a patient including others not listed, results in medical negligence on the side of the medical practitioner. No doubt, there is a statement to wit ‘we treat God heals’. This statement sometimes is seen written broadly at the walls of some hospitals and patient’s personal cards. It is meant to inculcate in the patient the ideology that accessing medical treatment is not 100 percent guarantee of recovery. In other words, the medical practitioner should not be seen as being responsible if after administering medical treatment, a patient fails to respond to treatment. No doubt, no law mandates the medical professional to ensure as a matter of compulsion that a patient who receives medical care must be cured or be liable for damages. However, the law imposes on the medical practitioner who holds himself out as a professional with qualifying degree a duty of care deserving of an expert. Even when the patient is not cured as expected, the medical practitioner must show that he has done that which is expected based on the expected standard of medical practice.While medical negligence affects not only the patient who is the prime victim, it may also affect both the medical practitioner and the society at large.
Can there be medical negligence where a patient suffers no damage even where it was discovered that the medical practitioner failed to observe the required standard in administering the treatment?
In law, damages are one of the essential elements for establishing the tort of negligence. Negligence has been held as the omission to do something which a reasonable man, under similar circumstances would do or, the doing of something which a reasonable and prudent man would not do. For the tort of negligence to be established, the party must show that he has suffered some damage. Accordingly where a patient suffers no damage but the medical practitioner actually failed to observe the required standard in administration of the treatment; such act could pass out as medical malpractice instead.
Types of Medical Negligence
The classification of medical negligence depends most time on the particular duty of care owed to the patient which has been breached and had caused damage to the patient. For the essence of this paper and owing to the limit of words prescribed, the types of medical negligence shall be summarized as follows:
Failure to provide adequate counseling which occasioned damage to the patient in some cases, relative of the patient.
Failure to obtain informed consent before treatment which occasioned damage to the patient.
Failure to carry out proper diagnosis which resulted in the patient suffering damages
Failure to administer proper medical treatment which caused damage to the patient
Failure to adhere strictly to the provisions of relevant laws regulating the practice of medicine such as the medical and dental practitioners Act, the Compulsory treatment and care for victims of gunshot Act ,2017 among others, etc.
Failure to provide adequate counseling
Counseling a patient so as to help the patient make an informed or sensible decision, on whether to agree to a proposed treatment, is part and parcel of a medical practitioner’s duty of care to his patient. A medical practitioner who failed to provide adequate counseling to his patient will be liable for medical negligence if it was discovered that the patient wouldn’t have given in if proper counseling was given at the first instance see Sidaway v Bethlehem Royal Hospital Governors
Failure to obtain informed Consent
The theory and practice of patients right to medical information and consent is a very sensitive, vital and life touching aspect of medical law. Findings have shown that many Nigerians are affected one way or the other by this practice especially as no one is immune from falling ill. In fact, the writer is even a victim of medical negligence.
Informed consent is an ethical concept that has been codified in law and daily practice at every medical institution. One of the earliest legal precedents in this area was established in 1914 when a physician removed a tumor from the abdomen of a patient who had consented only to a diagnostic procedure. The judge in that case ruled that the physician was liable for battery because he violated an “individual fundamental right” to decide what is being done with his body.
Traditionally, decision making powers in medical treatment are assigned to the physicians. In recent years, the medical profession has been confronted with the increasing assertion of patient’s right to make decision concerning their care and treatment, and to control what happens to their bodies. That is, patient demand the right to be active participants in decision about medical treatment, reflective of their status as autonomous persons. Accordingly, where a medical practitioner before administering treatment fails to obtain inform consent, he may be liable for medical negligence if the patient proved that the treatment procedures and challenges including risk, were never within the contemplation of such patient as same was never explained by the doctor or surgeon.
Failure to carry out proper diagnosis
With the exception of cases of emergencies, a doctor has a duty to carry out a proper diagnosis of his patient, before embarking on treatment. He must be able to read and interpret accurately, the laboratory test result. Therefore, where x-ray tests, blood test, urine test or other similar tests are required to determine the ailment and treatment, they ought to be carried. See Barnett v Chelsea and Kensington Hospital Management Committee.Accordingly where a medical practitioner fails to order for necessary test and examination or fails to interpret accurately the figures as revealed by the tests, he shall be liable in damage for the tort of negligence occasioning damage to the patient.
Failure to administer proper treatment
A medical practitioner has a duty to give proper treatment to a patient. Failure in this regard may render the medical practitioner personally liable. See Cassidy v Ministry of Health
Failure to adhere strictly to relevant laws
The constitution of Nigeria is the mother of all laws. Every law draws its inspiration from the Constitution. The medical and dental practitioners Act, regulates the affairs of medical practitioners. Though not encompassing, the law to an extent adjure the medical practitioner to exhibit the highest degree of professionalism in treatment of a patient or be liable to be prosecuted.
The compulsory treatment and care for victims of gunshot Act, 2017 is another lofty law regulating the medical practice in Nigeria. Any medical practitioner who violates any provision of the Act is liable under section 9 of the Act aside other punishment sections.
Before the enactment of the said Act in 2017, people with gunshot injuries are not usually accepted as patients for treatment in various medical facilities irrespective of the severity of the wounds in the absence of a police clearance report. This is owing to the unnecessary embarrassment, arrest and even detention medical personnel’s face in the hands of the Nigerian police who see them as accomplice in most cases. This ugly situation, led to the death of many innocent persons. To forestall further damage, the National Assembly passed the bill into law thereby empowering medical facilities to accept for treatment victims of gunshot without police clearance report first sought and obtained. The law makes it an offense for any medical practitioner to refuse treatment in the absence of police clearance report. See section 1 of the Act. Accordingly, where a medical practitioner is greeted with a victim of gunshot in the medical institution, he will be liable for negligence if he fails to administer treatment on the victim now patient and same, cause the patient more and severe damage. It is immaterial that proper documentation was yet to be carried out on the patient. The provisions of the Act are tied to the fundamental right to life of all persons as guaranteed by section 33. This duty as provided by the act is sacrosanct and in line with the oath of the medical practitioner to save life. Unfortunately, despite the beautiful provisions of the Act, little or nothing has actually changed as the Act is honoured more in the breach than in compliance.
The Implication of Medical Negligence
The case of medical negligence exposes the medical practitioner to a law suit for damages which can be financially high. With the fall of the Nigerian currency, suing a medical practitioner for damages in dollars or other currency other than naira will drastically affect the estate of the medical practitioner should the law suit succeed in damages as claimed by the claimant.
A law suit that visits a medical practitioner with heavy damages as compensation to the victim or victim’s family, will discourage other medical practitioners from entertaining and treating similar diseases for fear of being sued and this will not go well with the health sector as no doctor especially those in private practice is compelled to see any patient.
Some cases of medical negligence can still pass out as criminal offences thereby exposing the medical practitioner to criminal prosecution of which punishment can be a term of imprisonment thereby bringing disrepute to the medical profession as a whole.
Medical negligence can also scare patients away from accessing medical treatment for fear of not ending like others who were victims. A man who suffers from medical negligence will less likely advise another to seek medical care. The list is endless.
Regulating Medical Practice and Medical Practitioners
The medical practice is regulated by relevant laws and standards. However, neither the medical and dental practitioners Act nor the code of medical ethics provide any specific definition of what medical practice is all about. However, according to Ofoegbu Stanley Maduabuchi, a person is practicing medicine if he or she engages in any of the following:
Offers or undertakes to diagnose, care, advise or prescribe for any disease, ailment injury, infirmity, pain or things of similar character by any means or instrumentality.
Administers or prescribes drugs or medical preparation to be used by a sick person.
Severs or penetrates the tissue of another as an expert in medicine.
Using the title of doctor, physician, and surgeon or combining any of the listed as a description unto him such that a reasonable man will hold him out as a medical practitioner.
Some of the laws regulating the practice of medicine includes but not limited to:
The constitution of the federal republic of Nigeria, under the fundamental human rights provisions particularly section 33 provides for right to life. Under the said section, a doctor or medical practitioner is not allowed to treat a patient in such a way that the patient will lose his life. He is bound to explain to the patient all he needs to know including the chances of survival to enable the patient make informed decision. Also while administering the treatment; he must respect the body of the patient as provided for in section 34 of the Constitution which provides for the right to human dignity. Hence, it is constitutionally mandatory that a medical practitioner get proper consent before meddling with the body of any patient in Nigeria. This alone, is a regulation.
The criminal and penal code
Both the criminal and penal codes regulate to an extent, the practice of medicine in Nigeria. Section 303 of the criminal code Act, provides that it is the duty of every person in a case of necessity, undertakes to administer surgical or medical treatment to any person, or to do any other lawful act which may be dangerous to human life or health, to have reasonable skill and use reasonable care in doing such act. Section 252 of the same criminal code Act provides among others that anyone who touches the body of any person without consent commits an offence. A thorough reading of the both sections shows that a medical practitioner will be liable if he fails to exercise duty of care and obtain the patients consent. Thus, this is a regulation to the practice of medicine. Similar provisions are provided in the penal code.
The medical and dental practitioners Act
The act empowers the medical and dental council of Nigeria to make rules of professional standards and code of ethics for medical practitioners in Nigeria. It also establishes disciplinary tribunals and investigative panels for the enforcement of the rules. Section 16 of the Act, provides for penalties for violation of the law. This Act appears to be the major law regulating medical practice in Nigeria. However, the Act as it appears, only applies to persons who have undergone the cause of training based on the curriculum for medical and dental education as approved by the medical and dental council of Nigeria and have obtained recognized certificate approved by the council and who beside the above, have registered and issued with the practicing license by the council to practice as a physician or Dentist surgeon in Nigeria. Accordingly, every medical practitioner is meant to be guided by this Act in combination with other relevant laws.
The code of medical ethics.
Just like the rules of professional conduct for legal practitioners, the medical profession in Nigeria is also regulated by principles, ethics and values. The medical and dental council of Nigeria is empowered the medical and dental practitioners Act 2004 to review from time to time a statement as to the code of conduct which the council considers desirable for the practice of the profession in Nigeria. Accordingly, this is another means of regulating the medical practice as well, the medical practitioners.
The compulsory treatment and care for victims of gunshot Act,2017
The act also regulates the practice of medicine. Section 1 of the Act mandates every hospital in Nigeria whether private or government to accept for treatment, any victim of gunshot brought to the hospital without police clearance report first sought and obtained. This is contrary to the previous norms whereby police reports are made a sine qua non for admitting patient with gunshot wounds. By mandating hospitals, medical practitioners are impliedly being referred to. Section 3 of the Act mandates any hospital by implication, medical practitioner to report to the nearest police station within two hours of commencement of treatment. Section 5, 9 and 11 makes the hospital and any doctor as specifically mentioned in section 5 liable for the violation of the Act. Accordingly, this law also regulates the practice of medicine even though findings show that the law is honoured more in its breach than compliance.
The United Nation Universal Declaration of Human Rights
Article 25(1) of the Universal Declaration of Human Rights provides:
“Everyone has the right to standards of living adequate for the health and well-being of himself and his family including food, clothing and medical care”
The above provision is tied to the constitutional provision of right to life as guaranteed by section 33 of the Constitution of Nigeria. This provision, gives credence to the fact medical practice is regulated both locally and internationally. Other regulations of this nature are found in international conventions such as the African Charter of Human and Peoples Rights among others.
The National Health Insurance Scheme Act
The Act was enacted for the sole purpose of providing health insurance which shall entitled insured persons and their dependents the benefits of prescribed good quality and cost effective health services as contained in the Act. See section 1 of the Act. The said act also regulates medical practice in Nigeria.
The Roles of Medical and Dental Council of Nigeria in Checkmating Medical Negligence
The roles of the medical and dental council of Nigeria in checkmating medical negligence are both express and implied. Express to the fact that they are expressly listed in the establishment Act and implied to the fact that they are not directly listed but flow from the supervisory roles of the council as listed in the Act. In other words, they are tied to the express roles. Section 1 of the Medical and Dental Practitioners Act, provides for the establishment of the medical and dental council of Nigeria as well, its functions. For the purpose of this essay, only the roles relevant to checkmating medical negligence shall be analyzed.
Section 1(2) (a) of the Act, empowers the medical and dental council of Nigeria herein referred to as the council to determine the standard of knowledge and skill required of persons who are seeking to become members of the medical or dental profession and to review those standards from time to time. By this power, the council is legally required to set the standard for proper medical treatment. The council by this medium is empowered to look at cases and incidences of medical negligence and strategize ways of tackling them by implementing policies and guidelines to be learned and obeyed by all persons seeking to become members of the profession. This policies and guidelines are meant to be changed as the cases of medical negligence unfold.
Section 1 (2) (b) of the Act empowers the council to ensure the publication of the list of persons who are meant to practice as members of the profession from time to time. By this, the council is also empowered to put the public on notice about members who are declared unfit to practice for one reason or the other. This, the council can do through periodic publication in social media and newspaper among others as a way of alerting the innocent public from giving into the services of persons who are declared unfit. By this, the rate of medical negligence is to be reduced. This particular point shows the need for the council to have a public relation officer who is good and vast in the knowledge of publicity and who can easily be accessible to the public.
Section 1(2) (d) empowers the council to supervise and control the practice of homeopathy and other forms of alternative medicine. By this authority, the council is to provide strict guidelines that must be followed in the practice of such medicine. This is similar to the powers as contain in 1 above. No doubt, it is generally believe that the Act applies only to members of the profession who are registered and licensed to practice medicine. But with the provision of alternative medicine, others who are actually not members of the profession but practice alternative medicine can come under this provision. The council to an extent can regulate their affairs as a way of curtailing incidences of negligence. One may argue that since most persons who practice alternative medicine are not members of the profession, they cannot be regulated. That argument may be logical but not correct. Where a literal interpretation of a statute will create absurdities, other forms of interpretation are to be employed. It is submitted that as the Act has made reference to alternative medicine, anyone who practice same, is liable to be regulated by the medical and dental council of Nigeria. By this, incidences and cases of medical negligence will be checkmated through the enactment of policies and supervision. At this point, the council is advised to work with the National agency for food drug and administration (NAFDAC) among others to checkmate the incidences of medical negligence from alternative medicine.
Section 3 (1) of the Act empowers the council to do anything in its opinion that is capable of facilitating the carrying out of its duties under the Act. This provision appears to be the best provision for checkmating the cases of medical negligence. The council has been given the floor to device different means and medium of checkmating the cases of medical negligence among others. It is immaterial whether such powers are given to them. By this section, the council is meant to look within and outside to see proper means it can employ to improve the practice of medicine. This is a blanket cheque issued to the council and it is as well, an implied role. The powers of the council under this section are limitless provided it is geared toward the standard regulation of the practice of medicine in Nigeria.
Section 9 of the Act empowers the council to approve courses and qualification for persons seeking to become members of the profession. This is another vital role of the council in checkmating medical negligence. It is a settled principle of law which is even supported by common sense that a man cannot give what he does not have or possess. See okelola v Adeleke.A medical practitioner cannot give what he does not have. A practitioner, who is ignorant of the knowledge of medical jurisprudence or law, will find it difficult to cope with the rights of a patient. Findings show that most medical practitioners are not learned in medical jurisprudence. Most are not only ignorant of the knowledge of medical law; they are even ignorant of what the practice of medicine is all about. Sometimes, persons who have suffered one form of medical negligence like me are surprised on how some of the medical practitioners pass their exams to be qualified to practice. However, findings revealed that there is a huge difference between passing exams and being knowledgeable in the field. By this provision, the council is mandated to ensure that the knowledge of medical jurisprudence forms part of the medical curriculum of medical students. The council is to ensure that medical students seeking to become members of the profession do not only pass written exams but that they actually understood what it means to practice medicine before certifying them as fit and proper. This is one way of checkmating the increasing incidences of medical negligence. Other roles of the council will be highlighted under the recommendation below.
The law is firmly settled that where there is a legal right, there is a legal remedy (Ubi jus ibi remedium). Accordingly, all hope is not lost provided the medical and dental council of Nigeria will live up to her expectations.
The following, is hereby strongly recommended as ways of curtailing the rate of medical negligence in Nigeria:
The medical and dental council of Nigeria herein referred to as the council should as a matter of urgency, review the curriculum of the persons seeking to become members of the profession to ensure that medical law or jurisprudence is made mandatory. This will afford the medical practitioner opportunity to appreciate the rights of patients and how to respect them. The council should also in this regard, ensure that only legal practitioners, who are vast in the knowledge of medical jurisprudence with proven works as evidence, are employed or hired to undertake the teachings of the said course. This is in line with a man cannot give what he does not have as not all legal practitioners are learned in the field of medical jurisprudence.
With the incessant strike actions by the academic staff union of universities (ASUU), the council should liaise with the national university commission to strategize on measures to ensure that medical students in the university are not rushed up following the strike actions just to meet up with academic calendar. This is to ensure that they are properly trained to the fullest considering the fact that nothing on earth can be compared with the life of a man. Hence, the academic calendar of the medical schools should be made to run separately from general students. This will reduce the rate of professional ‘quacks’ in the profession and thus curtailing the rate of medical negligence.
The council should embark on sensitization programs. This they can do be inviting legal practitioners vast in the knowledge of medical law to deliver lectures and seminars to medical practitioners from time to time in a particular region rotationally. They can also do this in conjunction with the Nigerian Bar Association. Radio and television programs are not left out. By this, medical practitioners who were not properly groomed in the knowledge of medical law either owing to incessant strike actions will be opportune to have a bite of such knowledge. The public will also be educated on their rights and how to go about them in case of breach. This will also keep medical practitioners abreast of local and international medical standards.
The council should write to the National Assembly of Nigeria for a total review of the Medical and Dental Practitioners Act to provide among others;
The definition of the term medical practice and scope.
The definition of who is a medical practitioner.
Regulation of all cases of medical practice by the council in conjunction with NAFDAC especially as it affects alternative medicines.
Expansion of the roles of the council to accommodate the regulation of all forms of medical practice.
With the increase in security challenge, the council should undertake a visit from time to time to all medical facilities to access the level of compliance with the compulsory treatment and care for victims of gunshot Act 2017. They can also hire personnel to undertake the inspection of the level of compliance in hospitals within a particular region who will in turn report to them as council.
The council should partner with SERVICOM to enable members of the public channel their complaint. In addition, the council should ensure that each medical facility produce an office where complaint or petition can be submitted by patients. The said office should be controlled by a representative of the council. Where it is not possible, an office should be created in each region where complaint can be sent and same acted upon.
The council should ensure that names of persons who are barred from practicing are published both in social media and papers. By this, the council should have a public relation officer who will help in disseminating information and receiving complaint against members of the profession for proper disciplinary action.
The council should write to the council of legal education and national university commission to make medical jurisprudence, a course in all law faculties so as to groom would be lawyers in the knowledge of medical jurisprudence.
Most medical facilities like federal medical centers that have GOPDs where patients gather before seeing their doctors should have a legal officer who will talk briefly on the rights of a patient each day before patients are allowed to meet with their doctors. This will go a long way in sensitizing the public and checkmating the rate of medical negligence.
Finally, following the dearth of literature in the field of medical jurisprudence, the council can engage seasoned legal practitioners among others to write articles, essays, short notes, and even books on medical jurisprudence for publication as a way of creating awareness and ensuring standard medical practice.
By Stanley Maduabuchi Ofoegbu Esq,PHONE; 08068515340, 08181689769, EMAIL; firstname.lastname@example.org
 Sideway v Bethlem Royal Hospital Governor 11DLR (3ed)1 at 13
 Odinaka v Moghalu (1992)4 NWLR PT 233, P.1 AT 15 SC
 Donoghue v Stevenson (1932)All ER 1
 Ese, Malemi, law of tort 2nd ed (Princeton publishing co 2013) at 358.
 (1985)1 ALL ER 643.
 Schloendorff v Society of New York Hospital 211 NY 125,105 N.E. 29,1914
 Donelly, M. “Health Care Decision-making and the law: Autonomy, capacity and limits of liberalism, Cambridge University Press: Cambridge, 2010 p.11.
 Ese, Malemi supra at 359.
 (1968)1 All ER 1068
 (1951)1 ALL ER 573.
 Constitution of the federal republic of Nigeria 2011 as amended.
 Ofoegbu Stanley Maduabuchi, A critical analysis of the patients right to medical information and informed consent under the Nigerian Law, project submitted to Ebonyi state University Abakaliki faculty of Law 2018.
 Cap C23,LFN, (1999) as amended
 Cap C38 LFN, 2004/ Cap P3,LFN 2004
 Cap M8 LFN 2004.
 Adopted by the United Nations General Assembly on10th December, 1948.
 LFN, 2004.
 (2004) LPELR 2438 (SC)