PROFESSIONAL NEGLIGENCE-MEDICAL MALPRACTICE

By Vanessa Irenuma

Professional negligence, also known as professional malpractice or professional misconduct, refers to the failure of a professional to perform their duties or provide services to a standard expected within their profession, resulting in harm or loss to their client or a third party. In Nigeria, professional negligence can occur in various fields, including medicine, law, engineering, accounting, and more. Legal remedies for professional negligence in Nigeria typically involve civil actions seeking compensation for damages caused by the professional’s substandard performance.

Medical Malpractice in Nigeria

Our major focus on this article will be on medical malpractice, medical malpractice refers to situations in which healthcare providers, such as doctors, nurses, hospitals, or other healthcare facilities, fail to meet the standard of care expected within the medical profession, resulting in harm or injury to patients. Medical malpractice cases in Nigeria, as in many other countries, involve complex legal, ethical, and medical considerations. Here are key points to consider when discussing medical malpractice in Nigeria:

1. Standard of Care

Medical professionals in Nigeria are expected to adhere to a standard of care that reflects the level of competence and diligence expected within their specialty. This standard is determined by what a reasonable and prudent healthcare provider in the same field would do under similar circumstances. in other words, the accepted standard of care would be the care that you might expect to receive from an average doctor in the same field of practice under the same circumstances. The doctor medical knowledge and specialty are taken into account when determining the standard of care that should have been applied. in Nigeria the standard of care is established by the medical and dental council of Nigeria[MDCN].other bodies such as the Nigeria Medical Association and the Medical and Dental Consultants Association of Nigeria also have principles of ethics controlling their members with disciplinary measures put in place to guarantee compliance.

2. Common Forms of Medical Malpractice

Medical malpractice can take various forms, including misdiagnosis, delayed diagnosis, surgical errors, medication errors, birth injuries, anesthesia errors, and inadequate patient care. Each of these types of malpractice may involve different legal and medical issues. Medical malpractice is a breach of a legal duty to take care which is expected to be exercised, which result in damages. it can be said as the failure of the medical practitioner to exercise a reasonable care in the course of his duty as a professional in that field. in the case of Ojo V. Gharoro And Ors, the appellant was told by the respondent that she had a growth in her fallopian tube, to this effect, she needed surgical operations in removing the growth which she consented to. After the operation, she complained of abdominal pain, and an x-ray was carried out. It was discovered that there was a broken needle in her abdomen. It was held that the respondents exercised their best medical skills and so no medical negligence occurred. To fortify the decision, the supreme court borrowed the words of Lord Denning, In his book titled The discipline of law, wherein he opined;

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, 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.

3. Duty of Care

To establish a medical malpractice claim, the plaintiff (the patient or their representative) must demonstrate that the healthcare provider owed them a duty of care. This duty arises from the provider-patient relationship. Duty of care is one of the fiduciary relationships owed by the doctor to his patients. The black’s law dictionary defines fiduciary relationship as a relationship in which one person is under a duty to act for the benefit of another on matters within the scope of the relationship. ’the relationship between a doctor and his patient is one of trust and confidence; a relationship where one has the power and the duty to treat and restore the other to mental and physical wellbeing’’ this duty is a promise made by medical practitioners upon induction after going through the necessary medical training and enforced by the Hippocratic oath. In the recent case of Owoyele V. Mobil Production Nigeria Unltd established the ingredient of duty of care. The essential elements or ingredients of actionable negligence are as follows;

• the existence of a duty to take care owed to [a] the claimant by the defendant;
• [b] prescribed by law [breach of duty ], and
• [c] damages suffered by the claimant, which must be connected with the breach of the duty to take care.

Once these ingredients are established at a hearing, the defendant will be held liable in negligence.

The first ingredient is required to establish that the duty of care exists between two parties and it is owed by the defendant to the claimant. It is necessary to establish because of the fiduciary relationship that exist. The second ingredient requires that duty of care owed by the claimant by the defendant must be prescribed by law or a breach of duty. The medical profession is guided by certain laws and oaths that are sworn by members of the medical profession upon completion of their training; these are laws that can be enforced against these personnel upon failure or breach. Thirdly the claimant must prove that because of this breach, he or she suffered an injury. It is trite law that he who assert must prove. Therefore, the claimant must prove that he suffered injury due to lack of exercise of duty of care by the medical practitioner. OTTI V. EXCEL- C MEDICAL CENTER LTD the court stated the principle of duty of care owed to a patient by a medical doctor or hospital. A medical doctor or a hospital owes a patient a duty of care with regard to the procedure for a medical treatment of the patient.

4. Breach of Duty

The plaintiff must show that the healthcare provider breached their duty of care by failing to meet the accepted standard of care. This often requires expert medical testimony to establish what the standard of care should have been in the given situation and how it was violated. Breaching the duty of care can also be called ‘NEGLIGENCE’. If a doctor negligently-as in carelessly, or irresponsibly-breached his or her duties of care to a patient and caused injury, the doctor can be responsible for damages. However, there are conditions which must be established by the aggrieved party in order to succeed in an action for negligence against a medical practitioner. Such a party must prove that;

1. [1] the medical practitioner owed the patient a duty to use reasonable care in treating him or her
2. [2] the medical practitioner failed to exercise such care, and he was breach of that duty;
3. [3] the patient suffered damages or injury as a result of the breach. Such damages or injury must be a direct and not a remote consequence of the practitioner’s action.

A party aggrieved by medical negligence can file a criminal complaint under criminal law or institute an action for a civil wrong. Or follow the complaint procedure provided by the Medical And Dental Practitioners Act for professional misconduct. The onus of proof lies with the aggrieved party who must provide evidence to show negligence on the part of the medical practitioner. A victim of medical negligence can file a civil action against the negligent medical practitioner by issuing a writ of summons at the appropriate court, claiming special and general damages against the medical practitioner. The criminal code provides 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’’. The court held in R V. AKERELE where a medical practitioner who applied overdosed on a drug on a number of children, which led to their death, was held to have been criminally negligent and accordingly convicted for manslaughter.

CONCLUSION

Medical malpractice cases in Nigeria, like in many other countries, are complex and require a thorough understanding of both medical and legal principles. Patients who believe they have been victims of medical malpractice should seek legal representation from qualified attorneys experienced in handling such cases to navigate the legal process effectively. Patient should be aware of their right, the right to ask questions, the right to seek second opinions, the right to choose their preferred treatment option and the right to complain where treatment is unpalatable. They should also be aware of the concept of medical negligence. It is important to note that not every action or omission by a medical practitioner will lead to medical negligence, as each case would depend on its peculiarity, as an action for medical negligence requires strict proof.