Negligence in Medical Practice: Liability and Punishment

  Introduction

“I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.

I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon’s knife or the chemist’s drug.

I will not be ashamed to say, “I know not,” nor will I fail to call in my colleagues when the skills of another are needed for a patient’s recovery.” – Excerpts from the Hippocratic Oath.

“In the full knowledge of the obligation I am undertaking. I promise to care for the sick with all the skill and understanding I possess, without regard to race, creed, colour, politics or social status, sparing no effort to conserve life, to alleviate suffering and promote health.” – Nurses Pledge

In the discharge of duties, a medical practitioner is expected to exercise utmost care and diligence-as is expected of all professionals, but in the case of the medical practitioner, the standard expected of him is very high as he deals with human life, which is so dear and once lost can never be regained.[1]

The law on medical negligence provides the injured patient the right to a cause of action for negligence on every occasion he/she suffers any harm from the negligent act of a medical practitioner.[2] There is an assumption of the existence of a fiduciary relationship between a medical practitioner and a patient and flowing from the foregoing is the necessity of the duty of care. The purpose of the physician to patient relationship is to ultimately attain a status of well-being for the client. [3]

The first question to be determined in any action for negligence is whether the defendant owed a duty of care to the plaintiff. Clearly, a doctor owes his patient a duty and a shortfall in the delivery of such could amount to extreme complications, the worse and most frequent of which is death.

Definition of Terms

Medical practitioner

The Black’s Law Dictionary defines a practitioner as a person engaged in the practice of a profession.[4] Thus, a medical practitioner is a person who is engaged in the practice of medicine.

Nowadays, “Medical” does not only refer to medical doctors but to any personnel in the health services[5]. Health care providers could be said to be those who are qualified and appropriately registered (where necessary) to practice any of the health-related professions within the medical field. They include doctors, nurses, physiologists, physiotherapists, ophthalmologists, Dentists Pharmacists, Laboratory scientists, radiologists and a host of others.[6]

In Nigeria, medical practice is governed by the provisions of:

1. The Medical and Dental Practitioners Act CAP M8, LFN 2004;
2. The Nursing and Midwifery (Registration, etc.) Act 1979;
3. The National Health Act 2014;
4. The Code of Medical Ethics in Nigeria [pursuant to section 1(2)(c) of CAP M8];
5. The Constitution of the Federal Republic of Nigeria 1999 (As Amended);
6. The Medical Oath/Vow;
7. The Compulsory Treatment and Care for Victims of Gunshot Act 2017;
8. The Patients’ Bill of Rights etc.[7]

Negligence

Negligence is the omission of doing something a reasonable man would under the same circumstances or doing something that a prudent or reasonable man would not.[8] As a tort, it is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.[9]

Medical Negligence 

In general, when it comes to negligence, it is important to note that while one must take care not to cause injury to others, there is no duty to act for the benefit of others. However, the medical profession places a responsibility on everyone involved in healthcare to attend to and act in the best interest of any sick or injured person.

It has been established earlier, that there is a duty of care owed by medical personnel to a patient. Medical negligence is, therefore, a breach of a duty of care by a person in the medical profession, to a patient, which results in damage to the patient[10]

 Proof of Negligence

To prove a practitioner negligent, one must show that a required standard of care was violated, and that the violation was the legal cause of the injury.[11] In the case of First Bank Nigeria Plc. v Banjo[12], the court inferred certain elements of negligence which must be proved as follows.

1. That the defendant owed the plaintiff a duty to exercise due care
2. That the defendant failed to exercise the due care, and;
3. That the defendant’s failure was the cause of the injury of the plaintiff.

In order to determine professional misconduct, the court will decide if the act or omission of the doctor falls short of the standard expected of other medical practitioners.[13]

In law generally, the burden of proving negligence (i.e that the defendant was in breach of the duty of care he owed to the plaintiff) always lies on the plaintiff.[14] In Abubakar & Anor v Joseph & Anor[15], the court held that: 

“The burden of proof of negligence falls on the plaintiff who alleges negligence. This is because negligence is a question of fact, and it is the duty of he who asserts to prove it”

 However, this might pose an issue for the victim because across various countries and jurisdictions around the world, it is possible that the action fails because of the inability to either prove that negligence occurred or show how it happened i.e lack of direct evidence. In the aforementioned case, Niki Tobi, JSC further stated that Failure to prove particulars of negligence pleaded will be fatal to the case of the plaintiff.

This is the position of the law as regards civil matters arising from Negligence.

Where then is the justice for a victim who cannot adequately prove the negligence of a medical practitioner? One may ask. This is where the principle of “res ipsa loquitor” comes in, shifting the burden to the defendant who now has to prove that he did no wrong.

Res ipsa loquitor applies where there is no other proof of the medical practitioner’s negligence other than the act or omission in question.[16] Within the American legal system, Res ipsa loquitor is a legal principle that, in some medical malpractice cases, allows a jury to presume that a health care provider was negligent, instead of requiring the injured party to establish negligence. It then falls on the provider to disprove any wrongdoing.[17]

The Literal definition of this is “The fact speaks for themselves” and order to rely on this doctrine, the plaintiff must establish two things:

1. That the thing causing damage was under the management or control of the defendant or his servants
2. That the accident was of such a kind as would not, in the ordinary course of things have happened without negligence on the defendant’s part.[18]

That the fact speaks for itself means that nothing needs to be proven.

In medical practice, this can be translated to meaning that the principle applies where medical practitioners are in control or management of certain situations, or equipment or where such incident would not have occurred if the medica practitioner wasn’t negligent.

In Dickson Igbokwe v University College Board of Management [19], where a mentally handicap patient who was under 24hours observation jumped from the fourth floor of a hospital, wherein a nurse was assigned to watch and observe her, res ipsa loquitor was successfully pleaded and the nurse was found to have been negligent in carrying out her duties.

In University of Ilorin Teaching Hospital v Akilo[20],  the court held that the medical practitioner would be held liable for negligence if without due care and skill, he/she describes fractures as dislocations and dislocations as fractures.

Liability and Punishment for Medical Negligence

Liability is the quality, state or condition of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment[21].

In the case of Ojo V Gharoro[22], negligence was said to have been described as a fluid principle which has to be applied to the most diverse conditions and problems of human life.

Thus, negligence could be civil or criminal and as such, injured parties can seek both civil reliefs as well as press for punishment under criminal law.

Civil Liability

Under civil law, Tortious Liability arises from the breach of a duty that is fixed by the law, is categorical in nature and owed to any person who is within the scope of the duty, and when breached, is redressable by an action for compensatory, unliquidated damages.[23]

A patient who suffers harm as a result of a healthcare provider’s negligence may file a medical negligence lawsuit against the doctor to recover damages.  An aggrieved patient can proceed to the High Court to sue for negligence and to claim damages.[24]

Also,  an aggrieved patient can make a formal complaint before Nigeria’s medical and Dental council (MDCN).  In accordance with the provisions of SECTION 16(2) of the Medical and Dental Practitioner’s Act, the MDCN’S tribunal established by SECTION 15(1) of the Medical and Dental Practitioner’s Act has the authority to do three things when the panel finds a Medical Practitioner guilty of infamous conduct in any professional respect;

• order the Registrar to strike the person’s name off the register;
• or suspend a doctor’s license for a period not exceeding six months;
•  or admonish a doctor.[25]

Criminal Liability

When a person does an act or makes an omission and death results from negligence on his part, the question whether he is guilty of manslaughter depends on the degree of negligence.

The criminal code is silent as to the requisite degree of negligence, but Nigerian courts have held that the degree is the same as in English law. The negligence must be above the ordinary tortuous, negligence. Accordingly, simple lack of care or more inadvertence such as would create civil liability is not sufficient. There must be gross negligence or recklessness.[26]

No act or omission which is unintentional can be criminal, unless it be one of those relatively few acts or omissions which are criminal under the code, when committed unintentionally but negligently.[27]

Criminal liability for negligence has been mostly limited to prosecutions for manslaughter in many jurisdictions of the world, however the Nigerian criminal code Act provides for lesser offences in medical negligence. The level of negligence which a doctor must have manifested is considerably above that which civil liability may be incurred. Traditionally it has been defined as “gross” or extreme” negligence and sometime, somewhat tautologically as criminal negligence.[28]

A doctor who negligently causes a patient’s death is not guilty of manslaughter unless his negligence or incompetence is so great as to show a disregard for life and safety and to amount to a crime against the state. [29]

Section 303[30] of the Criminal Code Act in Nigeria. Which discusses the Duty of persons doing dangerous acts states that:

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, or to do any other lawful act which is or may be dangerous to human life or health, 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.

Furthermore, Section 343[31] of the Criminal Code Act in Nigeria. Reckless and negligent acts provides in Subsections 1 e & f that:

(1) Any person who in a manner so rash or negligent as to endanger human life or to be likely to cause harm to any other person‐

(e) gives medical or surgical treatment to any person whom he has undertaken to treat;

(f) dispenses, supplies, sells, administers, or gives away any medicine, or poisonous or dangerous matter …. is guilty of a misdemeanor and is liable to imprisonment for one year.

 Conclusion

Medical Negligence is not a new term or concept, neither are the remedies and punitive measures attached to it. All Healthcare Workers have a special burden or responsibility to take special care in the course of their duties. For one to be sworn in as healthcare practitioner, it is assumed that such a person is well skilled in the field, meticulous, intelligent and proactive.

While it is not the responsibility of any medical practitioner to go around looking for people to save, they have the responsibility to exercise utmost care when they come in contact with the sick or injured, failure of which could lead to serious legal issues.

 FOOTNOTES:

[1] Mabel Otibo Izzi, ‘An Overview of Medical Negligence in Nigeria’ (2012) 4(1) Port Harcourt Law Journal <https://www.researchgate.net/publication/332291216_an_overview_of_medical_negligence_in_nigeria> accessed June 2023

[2] Yinka Olomojobi, Medical and Health Law: The Right to Health (Princeton and Associates Publishing Co. Ltd. 2019), 142

[3] Yinka Olomojobi, Medical and Health Law: The Right to Health (Princeton and Associates Publishing Co. Ltd. 2019),

[4] Brian A. Garner, editor in chief, Black’s Law Dictionary. (10^th ed Thomson Reuters, 2014)

[5] Povl Riis ‘Round Table: Medical Negligence’ (1996) 17, World Health Forum < https://apps.who.int/iris/bitstream/handle/10665/53943/WHF_1996_17%283%29_p215-239.pdf?sequence=1 Accessed June 8,2023

[6] Ehigiator & Ucheagwu-Okoye, ‘Medical Negligence and Criminal Liability: An Evaluation of the Nigerian Position’ (2021) 2 MUNFOLLI\J < https://journals.ezenwaohaetorc.org/index.php/MUNFOLLJ/article/download/1536/1580> Accessed June 22, 2023

[7] The Legal and Regulatory Framework Governing the Health Profession in Nigeria and The United Kingdom: A synopsis 8, https://thefirmaadvisory.com/new-blog/2020/3/16/the-legal-and-regulatory-framework-governing-the-health-profession-in-nigeria-and-the-united-kingdom-a-synopsis Accessed June 8, 2023

[8] Yinka Olomojobi, Medical and Health Law: The Right to Health (Princeton and Associates Publishing Co. Ltd. 2019),

[9] W.V.A Rogers, Winfield and Jolowicz on Tort (Sweet and Maxwell 1990), 72

[10] Ehigiator & Ucheagwu-Okoye, ‘Medical Negligence and Criminal Liability: An Evaluation of the Nigerian Position’ (2021) 2 MUNFOLLI\J < https://journals.ezenwaohaetorc.org/index.php/MUNFOLLJ/article/download/1536/1580> Accessed June 22 ,2023

[11]‘Medical Malpractice: A Move toward Strict Liability’ (1975) 21 Loy. L. Rev. 194 https://heinonline.org/HOL/LandingPage?handle=hein.journals/loyolr21&div=16&id=&page= Accessed June 8 ,2023

[12] (2015) 5 NWLR (Pt. 1452) 253 C.A

[13] Mabel Otibo Izzi, ‘An Overview of Medical Negligence in Nigeria’ (2012) 4(1) Port Harcourt Law Journal https://www.researchgate.net/publication/332291216_an_overview_of_medical_negligence_in_nigeria accessed June 8, 2022

[14] Kodilinye & Aluko, The Nigerian Law of Torts (Spectrum Books Ltd. 2009),47

[15] (2008) LPELR- 48 (SC)

[16] Yinka Olomojobi, Medical and Health Law: The Right to Health (Princeton and Associates Publishing Co. Ltd. 2019),

[17] https://www.nolo.com/legal-encyclopedia/what-is-res-ipsa-loquitur-in-a-medical-malpractice-case. Accessed June 9, 2023

[18] Kodilinye & Aluko, The Nigerian Law of Torts (Spectrum Books Ltd. 2009),49

[19] (1961) WNLR 173

[20] (2002) FWLR (Pt. 28) 2286

[21] Brian A. Garner, editor in chief, Black’s Law Dictionary. (10^th ed Thomson Reuters, 2014)

[22] (2006) LPELR-2383 (SC)

[23] Brian A. Garner, editor in chief, Black’s Law Dictionary. (10^th ed Thomson Reuters, 2014)

[24] Olawumi Ojo ‘Nigeria: Medical Negligence In Nigeria: The Legal Remedies’ (2022)

 < https://www.mondaq.com/nigeria/healthcare/1254460/medical-negligence-in-nigeria-the-legal-remedies> Assessed June 30, 2023

[25] Olawumi Ojo ‘Nigeria: Medical Negligence In Nigeria: The Legal Remedies’ (2022)

 < https://www.mondaq.com/nigeria/healthcare/1254460/medical-negligence-in-nigeria-the-legal-remedies> Assessed June 30, 2023

[26] Ehigiator & Ucheagwu-Okoye, ‘Medical Negligence and Criminal Liability: An Evaluation of the Nigerian Position’ (2021) 2 MUNFOLLI\J < https://journals.ezenwaohaetorc.org/index.php/MUNFOLLJ/article/download/1536/1580> Accessed June 22 ,2023

[27] Okonkwo and Naish ‘Criminal Law in Nigeria’ (Spectrum Books Ltd. 2009) 81, Criminal Code Act, (Cap C.38 LFN 2004), Section 24

[28] Ehigiator & Ucheagwu-Okoye, ‘Medical Negligence and Criminal Liability: An Evaluation of the Nigerian Position’ (2021) 2 MUNFOLLI\J < https://journals.ezenwaohaetorc.org/index.php/MUNFOLLJ/article/download/1536/1580> Accessed June 22 ,2023

[29] https://www.learnnigerianlaw.com/learn/criminal-law/involuntary-manslaughter  Accessed June 22, 2023

[30] Nigeria: Criminal Code Act [Nigeria], Cap C38 LFN 2004, 1 June 1916

[31] Nigeria: Criminal Code Act [Nigeria], Cap C38 LFN 2004, 1 June 1916