#YNaijaLegal: What you should know about Medical Negligence & other related matters

by ‘Deji Olunlade

law-300x199

It has been held in Abatan v Awudu (2003) 10 NWLR (Pt. 829) 451 C.A  that “the relationship between a doctor and his patient is one of trust and confidence; a relationship where one has the power and duty to treat and restore the other to mental and physical well-being.”. Thus, the two of them can never have equal bargaining power.

 

INTRODUCTION

Interactions all around the world have brought about different forms of relationships. We have a banker-customer relationship which exists in daily transactions between a customer and his bank, we have a counsel to client relationship and also a doctor- patient which is the focal relation for this write up.

A doctor-patient relationship is on the surface, a simple relationship but on closer look, a rather complex one. The most cogent principle to understand is that of  Duty of  Care or what may be seen as the breach of that duty of care i.e breach of trust and confidence. This sacrosanct duty imposed by law if breached, assumes that injury has been visited upon a patient at the hands of a Medical Practitioner, whose ultimate duty is to under all reasonable care, provide relief or succour to the patient.

It is, indeed, on a very sad note, that this writer has noticed that a lot of Nigerians and generally in less-developed countries, are grossly affected by this trend of unethical practice and have regrettably adopted the mentality of “leaving everything in God’s hands” , which has obviously led us to this degenerative or abysmal state.

This article seeks to discourage bad medical practice in the medical profession, advise Medical Practitioners on what course of action to embark upon when faced with making difficult or unconventional medical decisions, remind Medical Practitioners on the essential need to uphold the tenets of the Hippocratic oath and abide with utmost reverence to the rules stated in the Code of Conduct for Medical Practitioners, intimate patients about their rights and proffer remedies when their rights are infringed upon and finally, to recommend legislative reforms that can be instituted to meet the rising challenges faced in the medical profession pertaining to newer medical methods.

The breach of the basic duty of care cannot simply be wished away or over-emphasized. The victims of unethical medical practice or medical negligence are most often than not subjected to physical or emotional instability and trauma for the rest of their lives, on such occasions where death does not arise as a result of such malpractice.

 

What then is Medical Negligence?

Negligence occurs when a person is said to have omitted to do something which a reasonable man would do when he is guided by the factors which ordinarily regulate human conduct or when he does something which a prudent and reasonable man would not do. It can also be defined as the breach of duty of care which leads to damages.

Going a step further, we will be taking a cursory look at what is meant by Medical Negligence. According to the Blacks Law Dictionary, “medical negligence is the failure to provide medical, dental or psychiatric care that is necessary to prevent or to treat serious physical or emotional injury or illness while medical malpractice is a doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances”.

In both definitions of negligence and medical negligence, one recurring issue that comes up is “duty of care”

 

What is Duty of Care?

It is an obligation to which law will give recognition and effect, to conform with a particular standard of conduct towards another, and the duty is invariably the same one must conform to legal standard of reasonable conduct in light of apparent risk.

In Nigeria and indeed, the world over, the Physicians Oath, which is very familiar to members of the medical profession, will be set out here for the benefits of laymen. It goes thus;

“ At the time of being admitted as a member of the Medical Profession. I SOLEMNLY PLEDGE MYSELF to consecrate my life to the service of humanity. I WILL GIVE to my teachers the respect of gratitude which are their due; I WILL PRACTISE my profession with conscience and dignity; THE HEALTH OF MY PATIENT  will be my first consideration; I WILL RESPECT the secrets which are confided in me, even after the patient has died; I WILL MAINTAIN  by all means in my power the honour and the noble traditions of the medical (dental) profession; MY COLLEAGUES  will be my brothers and sisters; I WILL NOT PERMIT  considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient; I WILL MAINTAIN the utmost respect for human life from the time of conception; Even under threat, I WILL NOT USE my medical knowledge contrary to the laws of humanity…”

This oath has been universally adopted at the Declaration of Geneva(Physicians’ Oath Declaration) by the World Assemble of the World Medical Association at Geneva, Switzerland, in September1948and amended by the 22nd World Medical Assembly at Sydney, Australia in August 1994.

Furthermore, the Code of Conduct for Medical Practitioners in Nigeria re-emphasizes the need for them to exercise the several parts of their profession to the best of their knowledge and ability for the good, safety, and welfare of all persons committing themselves to their care and attention…

The various instances where a doctor must adhere to his ethics includes amongst others that;

a)      He should not allow the motives of profit to influence the free and independent exercise of his professional judgment on behalf of his patients

b)      He must be honest, competent and avoid deceit or fraud

c)      He must dedicate complete loyalty and resources to his science.

d)     He must ensure to make referrals on his patients when he is aware of his inability to competently treat a patient

e)      He must maintain confidentiality about his patients even after their death etc.

 

There are many instances in which medical doctors have been held to engage in medical negligence, some of them includes;

(a)    A case where a patient was not personally examined by the medical doctor in order to ascertain the true nature of illness and state of the patient,

  • Abandonment of a patient,
  • Improper recordings of findings after examination and failure to even record findings

This was found in the popular case of Surgeon Captain C.T Olowu v. The Nigerian Navy and reported in (2011) 18 NWLR (Pt. 1279) 659 S.C where a medical practitioner employed by the Nigerian Navy was held to be liable for failure to examine a patient who was admitted into the hospital and other negligent acts.

(b)   In  another case, the following was held to be instances of professional medical negligence;

  • Failure to attend to patient promptly
  • Incompetence manifested in the assessment of patient
  • Inability to manage post-operative complications
  • Inadequate pre-operative investigations
  • Deficient operative procedure
  • Faulty post-operative management
  • Inadequate facilities and subsequent admission of patients with that knowledge
  • Failure to refer a patient early to a better facility when complications set in

c) We also have instances where there has been careless retention of opening instruments inside a patient’s abdomen following a Laparotomy, application of wrong treatment as a result of failure to take an x-ray of patient who sustained a fracture, applying hypodermic injection for malaria that pierced sciatic nerves that caused foot drop, and a rather pathetic case of a doctor injecting cocaine into a person instead of procaine.

It has been held in Abatan v Awudu (2003) 10 NWLR (Pt. 829) 451 C.A  that “the relationship between a doctor and his patient is one of trust and confidence; a relationship where one has the power and duty to treat and restore the other to mental and physical well-being.”. Thus, the two of them can never have equal bargaining power.

In light of the above, it is quite apt to reiterate the fact that medical practitioners need to abide by the principles guiding their profession as failure to abide by these time-honoured principles may lead to drastic career truncation, damages for medical negligence and even criminal liability, See  Section 303 and 343 (1) (e) of the Criminal Code. It should be noted that the law places high premium on ensuring that best healthcare practices are obtainable in our hospitals and generally, healthcare institutions. It is, therefore, important that patients know that they have inalienable rights as to what to expect in terms of treatment from their personal physicians as regards the following;

CONFIDENTIALITY;

This is the state of having the dissemination of certain information restricted. The relation between your doctor and you is as regards the trust that is placed by you on him/her. This form of confidentiality is impliedly imposed by law and does not need any form of agreement whatsoever between you. It is the doctor’s duty not to divulge whatever information regarding your health to anyone except for some  compelling legal reasons or with your express permission. The law frowns upon the breach of this sacred duty.

INFORMATION;

A patient must be adequately and clearly informed about his true state of health  and the mode of treatment or course of treatment the Medical Practitioner has decided to follow. This also extends to explaining the risks and benefits involved in the application of drugs on the patient, it has been noted that in hospitals, medical doctors hardly inform patients of the consequences of use of certain drugs, if drugs are not purchased over the counter by patients then it becomes difficult for the patient to know the side-effects of a drug unless when informed by the medical doctor. In the case of Abi v CBN (2012) 3 NWLR (Pt.1286) 1 C.A, a patient sued his doctor and the hospital for negligently diagnosing, prescribing and administering a drug on him that made him deaf or difficult of hearing, although his appeal failed on the grounds of failing to call medical expert witness and pleading reps ipsa loquitor instead, amongst other valid reasons for dismissing the appeal, it is submitted that a wrong diagnosis and administration of drugs where the side-effects compared against the benefits has not been communicated to the patient may lead to an actionable wrong.

 

CONSENT

Especially, as regards surgery, invasive or non-invasive, and fundamental or novel course of treatment, your consent must be sought as a patient. This consent must be exact and unequivocal. This stems from the fact that a patient’s rights are guaranteed in the constitution. The Constitution guarantees a right to privacy of all persons and also the right to freedom of thought, conscience and religion found in Sections 37 and 38 of the 1999 Constitution of the Federal Republic of Nigeria as amended, therefore, a patient must unequivocally give his consent before the medical practitioner embarks on such. The instructive case here is that of Okekearu v. Tanko (2002) 15 NWLR (Pt 791) 657 S.C where a tort of battery was made out against a medical practitioner who amputated the injured finger of a patient without obtaining consent from the patient. I can place reliance on Clerk and Lindsell on Tort 15 ed p. 429 ‘…all that was needed to be proved in this class of battery is, the fact that the doctor failed to obtain consent from the patient before carrying out the operation’, it goes further in paragraph 4-9 at Page 662 that ‘in all other cases, the patient must be given sufficient information about the proposed treatment to enable him to give an informed consent”

Furthermore, in Sideway v. Board of Governors Bethlem Royal Hospital, “…the courts should not allow medical opinion of what is best for the patient to over-ride the patient’s right to decide what is best for himself , whether he will submit to the treatment offered him”. In fact, your reasons as a patient may be rational, irrational or even proffer no reason at all.

It should be noted that this principle is not without exceptions as regards under-age children, an unconscious patient whose next-of-kin or relatives cannot be immediately ascertained or contacted and in saving lives in an emergency situation, etc

These rights of the patients and duties of the Doctors are very essential and should be widely known  in the growth of a patient centred health care system.

 

The above stated issues are not meant to scare away medical practitioners as we are aware that if medical doctors have to bother about patients discontent and legal practitioners lawsuits at all times, doctors will be too cautious in providing the required healthcare, all I am trying to is to inform, educate and encourage good health practices. It is on this note that I will be suggesting ways in which medical practitioners may deal with instances where a patient may reject treatment and their best course of action.

The most glaring typical scenario is the rejection of blood transfusion by members and adherents of the a certain religious sect who believe that blood transfusion is totally forbidden by the Holy Bible and may contaminate their bodies with regards to biblical references of Genesis 9;4, Leviticus 17;10, Acts 15;29

In Tega Esabunor v. Faweya (2008) 12 NWLR (Pt. 1102) 794 C.A where a medical practitioner was sued for providing medical relief to an under-aged child whose mother, being a Jehovah Witness adherent, has refused to agree to blood transfusion to save the life of the child, the doctor acted pursuant to a court order obtained to that effect. The medical doctor was not held liable.

A consideration of a religious objection or other forms of objection to medical treatment involves a balancing of several interests which includes

  • The constitutionally protected right of the individual which is paramount
  • The state interest in public health
  • The safety and welfare of the general society
  • The interest of the medical profession in preserving the integrity o medical ethics and thereby its collective reputation

The medical doctor faced with such dilemma has a variety of options to choose from, especially when such patient is an adult of full age without any form of mental incapacity or other incapabilities hindering him from making a decision. He can;

1. Direct the referral of such a patient to an institution where the particular situation can be tolerated as the medical practitioner’ good conscience may not enable him compromise his own standards. This, personally speaking from a legal point of view, is really admired as it can be a very good way to avoid any problems that may be generated from continual treatment of such a patient. This was beautifully exemplified in the case of M.D.P.D.T v. Okonkwo (2001) 7NWLR (Pt 711) 206 S.C where a Doctor Okafor dismissed a patient that objected to treatment with the following;

‘ To whom it may concern’ RE; Martha Okorie

The patient and her husband strongly refused blood transfusion despite appeals, explanations and even threats that she may die. The husband rather asked for his wife to be discharged and he took her away, 17/8/91

  1. Provide refuge in a bid to postpone or ameliorate the consequences of the patient’s choice, which means the medical doctor may try other means of treatment agreeable with the choice of the patient and admit him on those terms, as was stated in Superintendent of Belckerton State School v Sackewiz noted in 93 ALR 3d 75that ‘the dyingare more in need of comfot than treatment’ and as was held in M.D.P.D.T  V Okonkwo (supra) where Dr Okonkwo of Jeno Hospital admitted the patient above and gave her chosen method of treatment until her death.

 

  1. Thirdly, as it relates to over-riding public interest, under-aged children, interest of the society or interest of the medical profession that encourages saving of lives and places high premium on it, he can seek a court order or direction in order to be properly guided in his actions and guard against a claim in negligence or any other related tortuous or criminal liability. As was held in the case of  Tega Esabunor v Faweya (supra)

 

 

NEED FOR REFORMS IN THE DOCTOR-PATIENT RELATIONSHIP

I will be proposing reforms as it touches upon the rights of patients and their relationship with medical doctors and newer development in the field of medicine that requires legislative regulation.

 

  1. There is the need for a comprehensive Patient’s Bill of Rights to be codified into our laws as we have a shortage of authorities dealing with medical issues as this-

Patients should be guaranteed the following;

  • Freedom to seek consultation with the physicians of their choice
  • Freedom to contract with their physician on mutually agreeable terms
  • To be treated confidentially, with access to their records limited to those involved in their care or designated by the patient
  • To ensure government use resources to be joined with their personal resources to purchase the care of their choice
  • To refuse medical treatment with cogent reasons, even if it is recommended by their physicians
  • To be informed of their medical condition, the risks and benefits of treatment and appropriate alternatives
  • Have access to a medical specialists and obtain close access to emergency care
  • Obtain the prescriptions their doctors issue etc, there are cases of Ophthalmologists holding on to eye tests prescriptions which is ethically wrong.

The list is non-exhaustible but the reasons I am advancing for this postulation are that patients suffer loss of earnings, cost/expenses of treatment, reduction in life expectancy, reduced enjoyment of life, death, permanent incapacitation or disability, unquantifiable pain and suffering. This is a serious appeal to our legislative arm to propose a bill that expressly governs how patients’ rights will be protected.

 

  1. It is also my suggestion that medical practitioners should not be continually put into dilemma as to what course of action to take when faced with difficult patients, medical practitioners in government hospitals should be adequately motivated and remunerated to avoid incessant strikes, adequate facilities should be provided by government in the hospitals bearing in mind that judgment awards for suits against government hospitals for damages  might be alarming compared against   the  amount of money that should have been spent on skills acquisition, provision of modern healthcare facilities, further training of doctors etc.

 

  1. Modern realities in the field of medicine which encompasses telemedicine, in vitro fertilization, egg and sperm donation, surrogacy in its numerous forms are current issues in the medical sector, without agreeable laws to regulate these conducts, we will continue to dwell in the realm of loose protection of confidentiality and non-disclosure agreements, this can never be substituted for having adequate legislation to deal with foreseeable controversies that may surround it. The instances of illegal trading of babies for cash is on the increase basically because expectant couples are devising means of having babies in whatever circumstances, if the reasonable conceptual methods   are backed by laws, then people will be able to operate within the confines of the law. According to Dr. Adegoke Ishola, a medical practitioner with the Nigerian Army, he stated that if there are no laws prohibiting certain aspects of Medical care i.e medical intervention in the health sector, it simply means citizens are to regulate the conduct of these procedures that should be highly regulated by their whim and caprices.

CONCLUSION

In conclusion, it is my sincere hope that Nigerians begin to respect the sanctity of  human lives by all stakeholders such as the government, doctors and patients playing their respective roles in a bid to build a happy and healthy nation.

——————————-

– ‘Deji Olunlade LL.B, B.L ACIarb is a legal practitioner with Black and White law firm.

 

Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.

Leave a reply

Your email address will not be published.

cool good eh love2 cute confused notgood numb disgusting fail