By Deborah Warrie Esq.

FICTIONAL STORY

  • Christina went to Mochana Medical Center to run some tests because of some pains she felt around her abdominal area. During her consultation with Dr. Fidelis the senior consultant, she was sent to the Lab to do an ultrasound.
  • After her ultrasound scan result came out, Dr. Fidelis informed her that she had multiple fibroids, which had to be removed as soon as possible. The next week, Christina was scheduled for surgery and during the surgery, it was discovered that there was no fibroid and she was moved out of the theater.
  • Unfortunately, less than two minutes after she was wheeled out, she died due to hemorrhage (excessive loss of blood, during the surgery). An investigation was carried out, and it was discovered that the Lab result given Christina’s, was not hers.
  • Christina’s actual Lab result showed she had Mild Ovarian Cyst which could have been treated with Hormonal Contraceptives, Massage, Exercise/Stretching, Heat, Relaxation techniques, Dietary changes, and not Surgery.
  • Saddened by the loss, Christina’s family pressed charges against Mochana Medical Center, Dr. Fidelis, and the Lab Scientist that conducted Christina’s ultrasound.

What a sad and pathetic story that brings us to the burning coal of today.

  • Medical Negligence. What is it?
  • How can a patient prove the same, if he or she is a victim of such?
  • Can claiming for medical negligence compensation delay or affect a pending patient’s treatment?
  • What has the Nigerian Jurisprudence said concerning this ongoing burning coal in the Medical World?
  • Are there more checks and balances for us to make in the Legal sphere of the Nigerian Health Care System?

All these and more will be viciously attacked in this article. Relax, read, learn

and also give your suggestions.

Medical Negligence. What is it?

  • Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury to a patient. The negligence might arise from errors in diagnosis, treatment, aftercare, or health management.
  • An act of medical malpractice usually has three characteristics. Firstly, it must be proven that the treatment has not been consistent with the standard of care, which is the standard medical treatment accepted and recognized by the profession. Secondly, it must be proven that the patient has suffered some kind of injury due to negligence. In other words, an injury without negligence or an act of negligence without causing any injury cannot be considered malpractice. Thirdly, it must be proven that the injury resulted in significant damages such as disability, unusual pain, suffering, hardship, loss of income, or a significant burden of medical bills.
  • As law varies by jurisdiction, the specific professionals who may be targeted by a medical malpractice action will vary depending upon where the action is filed. Among professionals that may be potentially liable under medical malpractice laws are:
  1. Physicians: a doctor who has earned a medical degree. Physicians work to maintain, promote, and restore health by studying, diagnosing, and treating injuries and diseases.
  2. Surgeons: a doctor who is specially trained to perform surgery.
  3. Psychiatrists: a medical practitioner specializing in the diagnosis and treatment of mental illness.
  4. Dentists: a licensed practitioner who is skilled in the prevention, diagnosis, and treatment of diseases, injuries, and malformations of the teeth, jaws, and mouth and who makes and inserts false teeth
  5. Nurses: a person trained to care for the sick or infirm, especially in a hospital.
  6. Midwives: a person, typically a woman, who is trained to assist women in childbirth.
  7. Nurse practitioners: a nurse who is qualified to treat certain medical conditions without the direct supervision of a doctor.
  8. Physician assistants: Advanced Practice Providers (APPs) who work under the supervision of a physician to treat patients in a wide variety of healthcare settings, including hospitals and doctors’ offices, urgent care and rehabilitation facilities,and more
  9. Physiotherapists: a person qualified to treat disease, injury, or deformity by physical methods such as massage, heat treatment, and exercise.
  10. Osteopaths: a person who is trained to treat injuries to bones and muscles using pressure and movement
  11. Chiropractors: a practitioner of the system of complementary medicine based on the diagnosis and manipulative treatment of misalignments of the joints.
  12. Podiatrists: medical specialists who help with problems that affect your feet or lower legs
  13. Occupational therapists: someone whose job is to treat physical or mental illness by giving patients activities and helping them do things they want or need to do
  14. Social Workers: According to the National Association of Social Workers, social work is a profession devoted to helping people function the best they can in their environment.
  15. Psychologists: a person who specializes in the study of mind and behavior or in the treatment of mental, emotional, and behavioral disorders
  16. Pharmacists: a person who is professionally qualified to prepare and dispense medicinal drugs
  17. Optometrists: healthcare professionals who provide primary vision care ranging from sight testing and correction to diagnosis, treatment, and management.
  18. Medical radiation practitioners: registered healthcare practitioners who perform diagnostic imaging studies on patients, plan and administer radiation treatments, or prepare and administer nuclear medicine.
  • Among the acts or omissions that may potentially support a medical malpractice claim are the failure to properly diagnose a disease or medical condition, the failure to provide appropriate treatment for a medical condition, and unreasonable delay in treating a diagnosed medical condition. Just like the tragic case of Christina.
  • In some jurisdictions, a medical malpractice action may be allowed even without a mistake from the doctor, based upon principles of informed consent, where a patient was not informed of possible consequences of a course of treatment and would have declined the medical treatment had proper information been provided in advance.

Elements required to prove medical negligence. How can a patient prove he or she is a victim of such?

  1. Duty: Demonstrate that a patient-to-medical professional or patient-to healthcare provider relationship existed. Establishing this fact confirms that they owed a duty of care to look after you for the duration of your treatment.
  2. Dereliction: Dereliction occurs when medical practitioners deliberately or accidentally fail to follow the care standards set by the profession and a patient suffers harm as a result. Dereliction is sometimes described as another D: deviation from the acceptable standards of care.
  3. Direct cause: This is the specific action or inaction by a medical professional that directly caused harm or injury to a patient in their care. For example, operating on the wrong patient or body part because they misread the notes, wrong lab results (like the case of Christina). Other types of direct causes include misdiagnosis, misprescription of medicine, leaving a medical item inside a patient after surgery, causing avoidable scarring or disfigurement, etc.

Examples of medical negligence?

  • Misdiagnosis of a condition or mixed prescription of medication to treat it.
  • Wrong Lab test results or mixed-up Lab Test Results, like the case of Christina.
  • Avoidably failing to diagnose a medical condition that’s present.
  • Leaving a surgical item or similarly foreign body inside the patient’s body.
  • Post-operative infection that shouldn’t have happened.
  • The accidental perforation of internal organs.
  • Procedures that caused needless disfigurement or scarring.
  • Accidental injury to a mother or baby in pregnancy, childbirth or in postnatal care.

Can claiming for medical negligence compensation delay or affect a pending patient’s treatment?

  • No, it won’t. It’s against the law for any hospital, or medical practitioner to refuse treatment because you made either a claim or a complaint. If you decide that you’d prefer to be treated elsewhere or by another healthcare professional then that’s your right. All you need to do is request a transfer to another hospital or a referral to another doctor.
  • Also any hospital, or medical practitioner that refused treatment because you made either a claim or a complaint against them. Has infringed on your Fundamental Human Rights to live Chapter 4, Section 33 of the 1999 Constitution FRN (as amended). In C.O.P TARABA STATE & ANOR v. DABO & ANOR (2019) LPELR-47215(CA) Per JAMES SHEHU ABIRIYI, JCA (Pp 20 – 20 Paras D – E) held thus

“Fundamental human rights matters are serious matters. Allegations of breach of right to life are much more serious. The first right is the right to life. It is the most precious gift on earth. Thus the law provides that everyone is entitled to life and no one can be deprived of his life intentionally.

See also NDUBUISI v. STATE (2018) LPELR-44908(SC)

Section 33 of the 1999 Constitution, which guarantees right to life, stipulates that (1) Every person has a right to life, and no one shall be deprived intentionally of his life. (2) A person shall not be regarded as having been deprived of his life in contravention of this Section. Per AMINA ADAMU AUGIE, JSC (Pp 16 – 16 Paras B – F)

Some Famous Cases of Medical Negligence and their Court settlements

  1. Wrong Testicle Removed. West Los angeles Hospital pictureImage by John Schreiber
  • An Air Force veteran went for treatment for possible cancer of one testicle. When Benjamin Houghton went into surgery to remove his diseased left testicle at West Los Angeles VA Medical Center, the surgeons mistakenly removed the right, healthy testicle instead.
  • The medical mistake was traced back to the patient’s medical record where the surgeon failed to mark the correct side before undertaking the operation. Houghton and his wife brought a case against the VA Medical Center for $200,000.
  1. Wrong Leg Amputation
  • In one of the most tragic surgical errors, 52-year-old Willie King was supposed to have a diseased leg amputated in 1995. Instead, the surgeon took the wrong one-off. As in many wrong-site surgery cases, there were a series of mistakes that led to the wrong leg being amputated.
  • The incorrect leg was listed in a number of key places including the blackboard in the operating room, the Hospital’s computer system, and the operating room schedule. The staff had sterilized and prepped the wrong leg for surgery before the surgeon, Dr. Rolando Sanchez, appeared in the operating room.
  • The doctor’s defense later was that both legs were unhealthy and would have to be amputated. He was fined $10,000 and received a six-month medical license suspension. The cases against the surgeon and hospital were settled for $1.15 million.
  1. Tumor Removed, Instrument Left.
  • In 2000 Donald Church underwent surgery at the University of Washington Medical Center in Seattle. He was supposed to have an abdominal tumor removed. Surgeons did take out the tumor. But in its place they left a 13-inch metal retractor.
  • It took two months of pain before the surgical mistake was discovered. Church recovered $97,000 in damages. While these mistakes should never occur, this was the fifth incident in five years where this particular hospital’s surgeons had left surgical instruments in patients.
  1. Patient Wide Awake During Surgery medical mistake patient awake
  • When patients are placed under general anesthesia during surgery, they usually receive two types of anesthesia. One is a paralytic, to prevent movement, and inhalation anesthesia, to prevent pain and cause a loss of consciousness.
  • In 2006 Sherman Sizemore underwent surgery. While the first agent, the paralytic, was properly administered, the second one was not. That meant the patient was awake and could feel everything but was paralyzed and could not move or speak.
  • 16 minutes into the surgery the medical team realized this. Sizemore was awake! Overall the patient had nearly a half hour of conscious, painful surgery. The hospital never told him of this mistake. Even though he was unable to recall precisely what happened (they gave him an amnesia-inducing drug once they recognized the mistake) he knew something was wrong.
  • Sizemore never had any psychiatric or psychological conditions but now he had panic attacks and thought that people were trying to bury him alive. He also suffered insomnia and nightmares. A few weeks after the surgery he committed suicide.
  • His suicide appeared to have been caused by his experience of anesthetic awareness, which affects an estimated 20,000 to 40,000 patients every year. Mr. Sizemore’s family sued Raleigh Anesthesia Associates in West Virginia for failing to properly anesthetize him, which they believe caused their father to kill himself. The case was settled confidentially.

What has the Nigerian Jurisprudence said concerning this ongoing

burning coal in the Medical World?

  1. In M.D.P.D.T v. OKONKWO (2001) LPELR-1856(SC)

“Section 303 of the Criminal Code provides as follows; “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 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.” Section 303 states the duty of persons doing a dangerous act such as administering surgical and medical treatment and their responsibility for the consequences that may result to the life or health of any person by reason of any omission to observe or perform that duty. The Section establishes liability for consequences of the breach of that duty.Per EMMANUEL OLAYINKA AYOOLA, JSC (Pp 28 – 29 Paras C – B)

  1. OJO v. GHARORO & ORS (2006) LPELR-2383(SC)
  • “Lord Denning, in his sub-chapter titled “Doctors at Law in Part Six on Negligence in his book: The Discipline of Law, pages 237, 242 and 243: “A medical man, for instance, should not be found guilty of negligence unless he has done something of which his colleagues would say: “He really did make a mistake there. He ought not to have done it’ … but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used.
  • Every surgical operation involves risks. It would be wrong, and, indeed, bad law, to say that simply a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community, if it were so. It would mean that a doctor examining a patient, or a surgeon operating at a table, instead of getting on with his work, would be forever looking over his shoulder to see if someone was coming up with a dagger for an action for negligence against a doctor is for him like unto a dagger.
  • his professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as a dagger can his body. You must not, therefore, find him negligent simply because something happens to go wrong.
  • You should only find him guilty of negligence when he falls short of the standard of a reasonably skillful medical man, in Short, when he is deserving of censure.” One sees the above fairly liberal stand in some of his judgments. If Lord Denning, known for his radical activism can take such a position, then the legal position should be so.” Per NIKI TOBI, JSC (Pp 45 – 46 Paras C – C)
  1. M.D.P.D.T v. OKONKWO (2001) LPELR-1856(SC)

“Section 343(1)(e) of the Criminal Code provides that: “(1) Any person who in a manner so rash or negligent as to endanger life or to be likely to cause harm to any person e) gives medical or surgical treatment to any person whom he has undertaken to treat; is guilty of a misdemeanor and is liable to imprisonment for one year,” In a charge under Section 343(1)(e) the prosecution must allege that the offender (1) gave medical (or surgical) treatment to a person whom he has undertaken to treat; [2] that he did so in a manner so rash or negligent; [3] as to endanger life or to be likely to cause harm. Rashness and negligence in this instance connote a disregard for life and safety of the person treated. The manner of the treatment itself must be the likely cause of danger to life or of harm to the person treated.” Per EMMANUEL OLAYINKA AYOOLA, JSC (Pp 29 – 30 Paras E – B)

  1. ADEBAYO v. CHAIRMAN, MDPIP & ORS (2018) LPELR-45537(CA) What amounts to infamous conduct in medical practice
  • “The Appellant was charged with having conducted himself infamously in a professional capacity contrary to Rule 28 of the Code of Medical Ethics in Nigeria, 2004 Edition. The Rule, which deals with professional negligence extensively, reads: “Medical practitioners and dental surgeons owe a duty of care to their patients in every professional relationship.
  • Therefore, a registered practitioner who fails to exercise the skill or act with the degree of care expected of his experience and status in the process of attending to a patient is liable for professional negligence. See SPARKLING BREWERIES LTD Per TIJJANI ABUBAKAR, JCA (Pp 28 – 47 Paras B – A)
  1. OTTI v. EXCEL-C MEDICAL CENTER LTD & ANOR (2019) LPELR-47699(CA)

“It is rudimentary law that in order to find a medical professional guilty of negligence, the situation has to be such that what he did is what professional colleagues would say that he really made a mistake and that he ought not to have made it. OJO vs. GHARORO (supra).” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 52 – 53 Paras F – B)

Conclusion for Medical Practitioners

Using Christina’s tragic story, here are a few things Medical Practitioners must

take note of, in order to avoid being sued for medical negligence, or be held

guilty, of professional misconduct under the MEDICAL AND DENTAL

PRACTITIONERS ACT CAP M8 2004 Laws of the Federation of Nigeria.

  1.  Diligent Consultation: Dr. Fidelis the senior consultant in charge of Christina’s case was not diligent in his consultation, he was duty-bound to cross-check her Lab result, more than once. He was also expected to run another ultrasound, and other necessary tests before conducting the surgery.
  2. Emotional Stability: Medical Practitioners must ensure they are mentally, emotionally, psychologically and in a few cases spiritually stable before treating any patient.
  3. Careless Mix-up or wrong Labeling of Lab results:  Medical Practitioners are duty-bound to be extremely careful in handling or organizing lab results of their patients. The Lab attendant was negligent in handling Christiana’s Lab result. Which led to her reckless lamentable death.
  4. Consistent and Persistent overview of patient’s case files by Mochana Medical Center: The Administrative workforce of Mochana Medical Center had an ineptitude in consistently reviewing case files of their patients which showed, they failed to exercise, the general duty of care to the deceased.

Conclusion for Litigants

  • Negligent medical practices can be life-changing or even fatal for the victim. This is why making a claim can help and why it’s important to do so if you have good grounds/proof. Medical negligence cases can turn lives upside down, for both the victim and their families. The collateral damage can be widespread.
  • In serious cases, there’s the emotional pressure of caring and worrying for a loved one. If they are the main breadwinner, then the financial strain can become very hard to bear. A successful medical negligence claim can help you get through the tough times with interim payments. The final settlement will help you put your life back together over the long term.

Conclusion for Lawyers

here are more checks and balances for us to make in the Legal sphere of the Nigerian Health Care System?

  • In the recent case of OBINECHE v. CHAIRMAN MEDICAL & DENTAL PRACTITIONERS INVESTIGATING PANEL (2021) LPELR-52918(CA), the Powers of the Medical and Dental Practitioners Investigating Panel to investigate cases of professional misconduct was expressly stated thus

“The Tribunal’s jurisdiction is circumscribed by law as provided by Section 15(1) of the Medical and Dental Practitioner Act, Cap M8, LFN which states thus: “The Tribunal shall be charged with the duty of considering and determining any case referred to it by the Panel established under Subsection (3) of this section and any other case of which the Disciplinary Tribunal has cognizance under the following provisions..” The said Section 15(3) which created the Panel gave it 4 categories upon which it can investigate but the one relevant to this appeal is Subsection 3(a) which says: “3. There shall be established a body to be known as the Medical and Dental Practitioners Investigation panel (hereinafter in this Act referred to as “the panel”) which shall be charged with the duty of: (a) Conducting a 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, or should for any other reason be the subject of procedures before the Disciplinary Tribunal.” Per YARGATA BYENCHIT NIMPAR, JCA (Pp 33 – 34 Paras E – E)

  • However, the above is not enough. The Tort of Medical Negligence, has significantly, improved in other jurisdictions outside Nigeria. As such our jurisprudence must step up, and upgrade hers. Examples of some countries that have revamped their Tort of Medical Negligence.
  1. In the United Kingdom
  • The Supreme Court of the United Kingdom decided in 2018 that the duty of care extended to the information given to patients by a clerical staff of a healthcare provider, such that a medical negligence case might be predicated upon an administrative mistake.
  • A patient at Croydon Health Services NHS Trust’s emergency department suffered severe brain damage having been given misleading information by staff at reception.
  • He was told that he would be seen by a doctor in four or five hours and left the hospital when actually he would be seen inside 30 minutes by a triage nurse. £1.7 billion was spent on clinical negligence claims by the NHS in 2016/17. 36% of that was legal costs.
  1. In Canada,
  • All provinces except Quebec base medical malpractice liability on negligence, while Quebec follows a civil law system.
  1. Germany
  • Germany permits patients injured by medical negligence to bring a private action against the provider in contract, tort, or both.
  1. Sweden
  • Sweden has implemented a no-fault system for the compensation of people injured by medical treatment. Patients who want to bring malpractice claims may choose between bringing a traditional tort claim or a no-fault claim.
  1. New Zealand
  • In New Zealand, the Accident Compensation Corporation provides no-fault compensation for Victims.
  1. United States
  • In the United States, tort lawsuits may be used to seek compensation for malpractice. Awards of compensation in the United States tend to be much larger than awards for similar injuries in other nations.
  • A no-fault system (In its broadest sense, no-fault insurance is any type of insurance contract under which the insured party is indemnified by their own insurance company for losses, regardless of the source of the cause of loss) may provide compensation to people who have medical outcomes that are significantly worse than would be anticipated under the circumstances,non-primary source needed] or where there is proof of injury resulting from medical error, without regard to whether or not malpractice occurred.
  • Some no-fault systems are restricted to specific types of injury, such as a birth injury or vaccine injury.

References

  1. https://en.wikipedia.org/wiki/Medical_malpractice
  2. https://www.national-accident-helpline.co.uk/medical-negligence/what-is-medical-negligence
  3. https://www.healthline.com/health/misdiagnosis-stories#Ninas-story:-Endometriosis
  4. https://leightonlaw.com/12-famous-medical-malpractice-cases/ 
  5. https://www.collinsdictionary.com/dictionary/english/surgeon
  6. https://dictionary.cambridge.org/
  7. https://www.merriam-webster.com/dictionary/psychologist
  8. https://primsol.lawpavilion.com/

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