Medical Negligence and Liability in Nigeria

When things go wrong during medical intervention, it may be down (though not always) to the negligent act or omission of the medical staff or establishment. Injury to the patient may therefore give rise to a civil liability in damages or worse still, a conviction for criminal negligence.

However, in order to establish liability of a doctor or other medical personnel, there are 3 tests that need be satisfied.

These are:

1. That a duty of care was owed to the patient involved,
2. That the said duty was breached and
3. That as a direct result of the breach, the patient suffered harm (causation)

Based on this, the Code of Medical Ethics in Nigeria lists the following as instances of medical negligence:

• Failure to attend promptly to a patient requiring urgent attention when the practitioner is in a position to do so.
• Failure to refer or transfer a patient in good time, when such a referral or transfer is necessary.
• Failure to do that which ought reasonably to have been done under any circumstance for the good of the patient.

Duty of Care:

Medical duty of care in Nigeria derives from the principle of law established in the English case of Donoghue v Stevenson [1932] AC 562. In that celebrated case, the foundation of modern negligence law, Lord Atkin declared there was a general duty to take reasonable care to avoid forseeable injury to a ‘neighbour’. In answer to the question, who then is a ‘neighbour’, his Lordship explained that these are persons who are so closely and directly affected by our acts that we ought reasonably to bear them in mind in the course of our acts or omissions (see article on product liability).

Needless to say that the relationship between a doctor and his patient is undoubtedly a special one, involving the ‘neighbour’ principle.

Thus the Nigerian Supreme Court in U.T.B (Nig) v. Ozoemena (2007) 1 SC (Pt. 2) 211, defined Negligence as:

Lack of proper care and attention; careless behaviour or conduct; a state of mind which is opposed to intention; the breach of duty of care imposed by common law and statute resulting in damage to the complainant.

Breach of Duty:

To establish that a duty has been breach, there is first a need to determine what standard the person who owes the duty is expected to measure to (referred to as ‘standard of care’).

Normally, the standard applied is that of the ‘reasonable man’ or the famous ‘man on the Clapham omnibus’ said to be an ordinary person finding himself in the same circumstances. However, where there has been a potential breach of professional duty, this is reinterpreted as that of the standard of comparable professional practice.

The ‘Bolam’ Standard

This standard of comparable professional practice (standard of care for doctors) was laid down in 1957 in Bolam v Friern Hospital Management Committee. The case involved a patient who sustained fractures during ECT treatment and who alleged that care under anaesthesia had been negligent in part because he had not been given muscle relaxation for the procedure. He also complained that he had not been restrained or warned of the risks of fracture.

The Court held although there were contrasting opinions, there was still a responsible body of doctors who considered the procedure without muscle relaxation as acceptable practice at the time. In the circumstance, the Court held that negligence could not be established. From then on, the test has provided a defence for medical professionals where they can show they have “acted in accordance with practice accepted as proper by a responsible body of medical opinion”.

In practice, this has made winning negligence claims difficult.

Criticisms

The ‘Bolam’ standard has therefore been criticised, particularly by Medical law academics, as handing responsibility for determining negligence back on to those same professionals whose conduct are meant to be under scrutiny.

Enter Bolitho v. City and Hackney Health Authority (1997)

Though the Bolam test remains the starting point in medical negligence cases, subsequent cases have called into question the idea that an acceptable standard of care can be left alone to Doctors to judge without any significant role performed by the court.

Thus in the Bolitho case, where a child with intermittent croup was not intubated by a paediatric registrar and subsequently suffered hypoxic brain injury from a respiratory arrest, the Court held that a medical decision that is not capable of withstanding logical analysis is unreasonable and the treatment therefore negligent.

The judge in that case reasoned:

‘It is not enough for a defendant to call a number of doctors to say that what he had done or not done was in accord with accepted clinical practice. It is necessary for the judge to consider that evidence and [to] decide whether that clinical practice puts that patient unnecessarily at risk’.

Post Bolitho

Though it is accepted that Bolam remains the starting point, the use of evidence based medicine, extensive practice guidelines issued by professional bodies, international best practices and decisions of the Medical and Dental Practitioners Disciplinary Tribunals, should provide the Nigerian Judge with objective benchmarks to compare medical opinion and ascertain what is acceptable standard of professional practice in any given case.

Causation:

The task of proving liability of a medical practitioner is not complete even after showing that he or she was in fact negligent. This is because the negligence notwithstanding, the Doctor may still not be responsible for the injury suffered by the patient.

In order words, it still has to be shown that the negligent act or omission of the Doctor was in fact what caused harm to the patient and not some other likely explanation.

Some cases are indeed glaring such as where a patient with a disease-ridden right foot woke up from surgery to discover that his doctor had amputated his left foot or where a Surgeon removed the wrong breast of a cancer patient. In such cases, the principle of ‘res ipsa loquitor’ (‘the thing speaks for itself’) springs into action as there can be no doubt as to ‘harm and causation’.