Medical Negligence

 

Culled from references by: Barr. Ahmed Adetola-Kazeem

Definition:

The tort of negligence is defined as the omission or failure to do something which a reasonable and prudent man would do or doing something which a reasonable and prudent man would not do.  Negligence is the failure to exercise that care which the circumstances demand, i.e. absence of care according to the circumstances. 

Negligence can be defined as the breach of a legal duty to take care, resulting in damage which though not intended by the person who caused it but it is nevertheless foreseeable. Everyone owes his/her neighbour a reasonable duty of care not to indulge in acts that might lead to the hurt or destruction of the other. This principle is taken from the Good Samaritan passage which exhorts us to care for one another. In recent times, news abound of the ill treatment in our hospitals and health centres which are supposed to be places where hurt people are taken to get medical attention.

Types of Acts or Omissions that would amount to Medical Negligence

Rule 29.4 of the Code of Medical Ethics in Nigeria 2008 outlines examples of what acts or omissions constitute professional negligence:

1. Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so;
2. Manifesting incompetence in the assessment of a patient;
3. Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skilful practitioner could have failed to notice them;
4. Failure to advise, or proffering wrong advice to a patient on the risk involved in a particular operation or course of treatment, especially if such an operation or course of treatment is likely to result in serious side effects like deformity or loss of organ, or function;
5. Failure to obtain the informed consent of the patient before proceeding on any surgical procedure or course of treatment when such consent was necessary;
6. Making a mistake in treatment e.g. amputation of the wrong limb, carelessness that results in the termination of a pregnancy, prescribing the wrong drug, or dosage in error for a correctly diagnosed ailment, etc;
7. Failure to refer, or transfer a patient in good time, when such a referral or transfer was necessary;
8. Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient;
9. Failure to see a patient as often as his medical condition warrants or to make appropriate comments in the case notes of the practitioner's observations and prescribed treatment during such visits. It also includes failure to communicate with the patient or with his relatives as may be necessary with regards to any developments, progress or prognosis in the patient's condition.

Where any of the aforementioned is noticed by a patient, the right to sue and seek for redress in the law court or appropriate disciplinary body arises.

Redress:

The victim of Medical Negligence has a number of options for redress; he may:

1. Pursue civil claims against physicians or other health care providers for alleged “torts”, that is, breaches of duty that result in personal injury, or
2. File a complaint with the regulatory body (e.g. the Medical and Dental Council of Nigeria).
3. He could also report to the Police who would conduct Criminal Investigation and where the investigation reveals gross negligence, recklessness or wanton disregard for life of the victim, the police can prosecute or forward the case file to the office of the Attorney General of the State for possible prosecution in deserving cases.

Damages will normally be awarded in favour of the victim of the negligence (or his/her survivors, heirs or legal personal representatives if the victim is deceased) against a tortfeasor in the case of civil negligence, whereas a medical or health personnel adjudged to be guilty of professional negligence would usually be sanctioned by the appropriate disciplinary organ as laid down in the enabling statute.  The sanction could be admonition, suspension of the practitioner from the practice of the profession for a specified time or removal or erasure of the practitioner's name from the professional register, that is to say, prohibiting the professional from the practice of the profession.

The criminal liability of a medical practitioner who has exhibited gross negligence in the management of a patient now enjoys universal acceptance.  The case of Dr. Conrad Murray, Michael Jackson's personal physician, who was sentenced to two years imprisonment after being found guilty of involuntary manslaughter. 
 

In Surgeon Capt. Olowu vs. Nigerian Navy, the surgeon was demoted from his rank for the negligent act of immediately attending to a pregnant lady which led to the death of the child.

Conclusion

The aim of this article is to draw the attention of the public to incidences of medical negligence and professional malpractice with particular reference to the current approach in tackling these in Nigeria.It is believed that with more enlightenment on the part of Nigerian citizens and residents as to their right against unfair treatment by medical institutions and practitioners, many cases will spring up in the regular courts in addition to complaints being lodged with the professional regulatory bodies. This will ensure that medical personnel are more careful while carrying out their duties.