LEGAL PERSPECTIVES ON MEDICAL NEGLIGENCE IN NIGERIA

By Emmanuel Yusufu Esq

Date: June 10, 2020

INTRODUCTION
Negligence is the act of carelessness in the administration of one’s duty of care that causes unreasonable damage or injury. According to Winfield and Jollowicz, negligence as a tort consists of the breach of a legal duty to take care which results in damage undesired by the defendant to the plaintiff. Negligence must be a careless infliction of harm either resulting from an act or omission which is recognized by law as remediable in the circumstances in which it is reasonable foreseeable that the careless conduct would have inflicted on the plaintiff the kind of harm which he complains of.
Negligence is hinged on the tortuous principle of negligence as propounded by Lord Atkin in the 1932 case of Donoghue v Stevenson where he explained that the rule which says you must love your neighbor becomes, in law, you must not injure your neighbor: and the lawyers’ question, who is my neighbor?? The answer seems to be persons who are closely and directly affected by an act done by a person.
The case established a general duty to take reasonable care to avoid foreseeable injury to another. Therefore, to establish a case in negligence, it must be shown that a duty of care was owed; there had been a breach of that duty; and that the damage or injury was suffered as a direct result of a breach of the duty owed.
Going by the definition above, medical practitioners who undertake the care and treatment of patients owe a duty of care to such patients. A duty of care is implied when a patient is registered and being treated in a hospital. According to Oludamila and Oluseyi, medical practitioners owe a duty of care to every patient within the hospital premise whether or not he is on the management team of such patient. This is to reduce the number of negligent cases in the court.
In medical practice, the standard of care is usually contained in the rules of professional ethics. In Nigeria, the standard of care is set by the Medical and Dental Council of Nigeria.

MEDICAL NEGLIGENCE AND MALPRACTICES
Medical negligence occurs when a medical practitioner be it a doctor, nurse or pharmacist carelessly discharges his duties thereby inflicting harm on the patient. According to Oludamila and Oluseyi Adejumo, medical errors occur when a medical practitioner chooses an inappropriate method of care or improperly executes an appropriate method of care.
A medical error is a commission or an omission with potentially negative consequences to the patient that would have been judged wrong by skilled peers at the time it occurred, independent of whether there was any negative consequences. This means that acts that constitute medical negligence may or may not give rise to a claim in medical negligence. A medical error may not have given rise to any injury or damages and thus, a claim of negligence hinged solely on such an act is unlikely to succeed. Such an act may however give rise to a disciplinary action against such medical practitioner by the professional bodies. As such, breach of medical rules and ethics may not suffice to necessary give rise to a claim in negligence. The question is, what are the options available to a person who is unable to successfully establish negligence but who has been a victim of medical malpractice?
There is a contractual relationship between the medical practitioner and the patient as soon as the patient is under the care of the medical practitioner. Inherent in doctor-patient relationship, that is largely contractual is an implied term that the doctor will exercise reasonable care and skill in the treatment of his patient. As such, the law will imply the existence of a contact in cases where the patient submits to treatment. To succeed in an action for breach of contract unlike in negligent cases, it suffices for the patient to prove the existence of a doctor-patient relationship; breach of the implied/express term of the contract-to treat; and injury arising from or in the course of treatment.
Under the rules of equity, a claim may also be hinged on the recognition of a doctor-patient relationship as one which imposes a fiduciary duty on the medical practitioner. A fiduciary duty to protect the patients’ interest may be imposed on the medical practitioner in favour of the patient. This was clearly stated in Norbery v Wynrib (1992) 92 DLR 449, where the court upheld this view to uphold and defend the patient’s fundamental and personal interest. There are also cases where the patient suffers damages or injury but has no valid claim against the medical practitioner. This will arise where the patient has given informed consent or where the doctor acted based on compulsion to save the life of the patient. The medical practitioner’s action is unlikely to amount to negligence or breach of his fiduciary duty especially in circumstances where his actions were in good faith and in the best interest of the patient.
STANDARD OF CARE AND BREACH OF DUTY
The House of Lords in Anns v Merton London Borough Council (1977) UKHL 4 AC 728, stated that the matter of duty of care should be approached from two levels. The first is to ascertain whether there is sufficient relationship of proximity or neighborhood between the plaintiff and the defendant such that the defendant ought to reasonably contemplate that any carelessness on his part might cause damage to the plaintiff. If so, then a prima facie duty of care arises. Secondly, the court will consider whether there were any considerations, which ought to negatively reduce the extent of that duty. Usually, the standard used is that of a “ reasonable man “- the reasonable man standard. As regards to medical negligence, the focus is on the standard of professional duty expected of a comparable medical practitioner. The argument has been raised that the standard of care expected of a young medical practitioner/resident, should not be the same standard expected of a consultant. This is because a consultant ought to be a specialist in a particular field and hence, the degree of care expected of him should thus, be higher than that of a non-specialist.
In cases where a Junior doctor chooses to depart from his superior’s instructions, without reasonable justification, he will solely be held liable if his actions resulted in negligence. As expected in civil matters, the standard of proof required is to proof on the balance of probability which requires the judge to weigh the totality of evidence adduced by both parties to ascertain in whose favour the scale of justice tilts.
The medical practitioner must not only owe his patient a duty of care, he must also not breach that duty. But, what constitutes a breach of duty? Perhaps the answer can be found in the statement of Alderson B in Blyth v Brimmgham Water Works Co (1856) 11 EXCH 781@784 where he stated that negligence is the omission to do something which a reasonable man, guided upon such considerations which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Thus a breach of duty is established where a medical practitioner’s action has failed to meet an appropriate professional standard. In Bolam v Friern Hospital Management Committee (1957) 1 WLR 582, the court was of the view that it suffices if a doctor acted in accordance with a practice that was considered acceptable by a reasonable body of doctors. The fact that the culpability of a medical practitioner is largely dependent on the expert evidence of a colleague has been largely criticized on the grounds that the approach seem to be in favour of the medical practitioner over and above the patient and hence, makes it easy for the medical practitioner to escape liability for negligence. Where however the evidence given appears tainted, the judge has a responsibility to disregard such evidence. This means that negligence can be proved even in cases where medical opinion suggests otherwise. In establishing whether a breach has occurred, the court can also rely on written guidelines and rules of medical ethics to ascertain standard practice.
The fact that the claimant’s injury was caused by a medical practitioner is crucial to establish negligence. Not only should the injury be caused by the defendant, the injury must be direct and not a remote consequence of the defendant’s action. Hence, Lord Denning in MV. London Borough of Newham, rightly noted that causation is a question of fact and not law. It must be proved that the injury caused was a result of the direct consequence of the medical practitioner and not a remote consequence.

PROOF OF NEGLIGENCE
The burden of proving negligence ordinarily rests on the plaintiff; for he who alleges must prove. He must not only show that the defendant owes him a duty of care, but also that the duty was breached as a result of which he suffered foreseeable damage. This can be done by adducing legally admissible evidence. Sometimes, the plaintiff may not have known the cause of the injury beyond the injury itself. In such a situation, he may rely on the doctrine of Res Ipsa Loquitor.
The phrase means that ‘the fact speaks for itself’. This plea is to the effect that the plaintiff’s situation is deemed to indicate that it was clearly a consequence of the defendant’s negligence. As such, the burden shifts to the defendant to rebut the presumption of negligence against him, showing that the plaintiff’s situation could have been caused by other factors. It is however easier to make this plea in cases where things are purely physical and are glaring to see.

CRIMINAL NEGLIGENCE
A medical Practitioner’s action may also result in commission of a crime giving rise to criminal liability. Liability may arise for instance, for criminal assault or for causing grievous bodily harm. Hence, where in the course of treatment, and due to some form of negligence on the part of the medical practitioner, a patient suffers some gross or extreme harm or death, showing disregard for life and safety, liability will arise under criminal negligence. This view was given expression by the privy council in the Nigerian case of R v Akerele, where the court held that the degree of negligence required in criminal cases must go beyond that of civil liability and it must be shown that there has been such disregard for life and safety of others to amount to manslaughter. This is in accordance with the rule of evidence relating to standard of proof beyond reasonable doubt in criminal cases.
Section 343 of the Criminal
Code, Cap C 38 talks about reckless and negligent acts. It is to the effect that any person who gives medicine or medical or surgical treatment in a rash or negligent manner as to endanger life or likely to cause harm to a person shall be guilty of misdemeanor. As such, under the Nigerian Legal System, liability will arise even where life has not been lost but endangered, in the course of treatment. Furthermore, Section 303 of the Criminal Code requires that persons who undertake to administer surgical or medical treatment should possess reasonable skill and use reasonable care in acting. It must however be noted that skills do not only involve possession of qualifications; it may be a product of years of experience which ought not to be dispensed with the use of reasonable care. In R v Ozegbe (1957) 1 WNL the provision of section 303 was construed in a strict manner as the defendant was convicted for manslaughter as he had no proper knowledge of the surgery which he carried out.

CONCLUSION
Not all wrongs committed by a medical practitioner can successful give rise to a claim in negligence. This is because the standard of proof required to establish the requirements of negligence is a burdensome one which the victim must discharge. However, failure to successful establish a claim in negligence does not exonerate a medical practitioner from liability for malpractices or errors under other branches of law.
This study is not to put fear in the heart of medical practitioners, especially young medical practitioners, but to enlighten them and appeal to them to be more careful in the discharge of their duties. The law is gradually changing and people are beginning to realise that the court is indeed the hope of the common man and will not stand by and watch a medical practitioner negligently perform his/her duty.