Tortious Liability Of Medical Practitioners In Nigeria; An Appraisal

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Tortious Liability Of Medical Practitioners In Nigeria; An Appraisal


Abstract


This thesis entitled, “Tortious Liability of Medical Practitioners in Nigeria: An Appraisal,” Examines critically, the civil (tortious) Liability of Health care providers in Nigeria. In Nigeria, there is very little awareness that medical professional duties carry legal implications. The conduct of professional people in the medical field, positive or negative, does not only affect their employers but impact directly on third parties. Consequently, liability will arise both against the employer and the employee professional, in the event of a broach of duty by the latter to act with reasonable care and deligence.

The Law is therefore, well settled that medical men owe duty in tort, i.e. civil wrongs to their patients whether there is a contract with the patient or not. Unfortunately, this aspect of the laws is not properly exploit in Nigeria especially in the Northern part, due to low level of awareness and cultural norms in which every mishap is attributed to God’s will. Secondly, the cost of litigation is high and even with the undeveloped Legal Aid System in Nigeria, not everybody is eligible for legal aid. And lastly, doctor – patient relationship evidence has shown that family doctors are less likely to be sued as they are more likely to have relationship of trust with their patients.

Nevertheless, the law of medical malpractice has come to stay in Nigeria even though litigation is on small scale. Victims of medical malpractices have brought actions against medical practitioners in Negligence, criminal law, and in trespass in Nigerian Courts, especially in southern Nigeria. This work starts with an introductory chapter which discusses the objectives of the thesis, its scope, the method by which the research is conducted and the organizational Layout of the thesis.

Secondly negligence is discussed as the basis of liability of medial practitioners. Under this, the nature of negligence of medical practitioners is discussed and some instances of civil medical malpractice analysed properly. And finally the liabilities of quacks and native doctors are also ciscussed. Thirdly trespass and criminal liability of medical practitioners, as well as the liability of hospital managements, are discussed. Fourthly the defences and remedies to tortious liability of medical practitioners, in Nigeria are examined. And finally, we have the summary (Conclusion) and Suggestions for reforms in the area of medical malpractice law, especially the tortuous aspect in Nigeria.


Chapter One


General Introduction

1.1 Background of Study

This thesis entitled “Tortious Liability of Medical Practitioners in Nigeria: An Appraisal seeks to examine critically, the civil (tortuous) liability of health care providers such as, doctors, dentists, pharmacists, laboratory technologists and technicians, radiologists and radiographers, anesthetists, ward attendants, hospitals etc. In order to do this, the tortious liability of each group of personnel, is not going to be treated separately but rather as one body (medical
practitioners). In Nigeria, there is very little awareness that medical professional duties carry legal implications. The conduct of professional people, in the medical field, positive or negative, does not only affect their employers but impact directly on third parties. Consequently, liability will arise both against the employer and the employee professional, in the event of a breach of duty by the latter to act with reasonable care and diligence. The Law1 is, therefore, well settled that medical men owe a duty in tort, i.e., civil wrong to their patients, whether there is a contract with the patient or not.

Unfortunately, this aspect of the law is not properly developed or again properly exploited in Nigeria especially in the Northern part of Nigeria, due to low level of awareness and cultural norms in which every mishap is attributed to God’s will2. Secondly, the cost of litigation is high and even with the undeveloped
Legal Aid system in Nigeria, not everybody is eligible for legal aid. And lastly,

Doctor – patients relationship; evidence has shown that family doctors are less-likely to be sued as they are more likely to have a relationship of trust with their patients. Nevertheless the law on medical malpractice has come to stay in Nigeria even though litigation is on a small scale. Victims of medical malpractice have brought actions against medical practitioners in Negligence,3 in Criminal Law,4 and in trespass in Nigerian courts, especially in Southern Nigeria.

It should be noted that this introductory chapter also discusses objective and scope of the thesis, the research methodology and the organizational layout of the research. Nigeria has been chosen to limit the scope and secondly, because the Author, is an employee of a Teaching Hospital These two circumstances present an ideal situation for the realization of the objectives envisaged by this research.


1.2 Objectives of the Thesis

The aim of this research is to identify the categories of personnel involved in the practice of medicine in Nigeria and determine their tortious (civil) liabilities for malpractices committed in the course of carrying out their duties. In Nigeria, there is very little awareness that medical professional duties carry legal implications. This accounts for the fact that in Northern Nigeria, there have been little or no litigation arising from the activities of health care providers, such as physicians, dentists, nurses, among others. The aim of this thesis, therefore, is also to create awareness not only on the part of health care providers at all levels that they must have a clear appreciation of the basic legal responsibilities of neir jobs but also, on the part of health care recipients that they have a right of redress in law against any health care provider who perpetrates professional malpractice on them. The activities of medical professionals, positive or negative, do not only affect their employers vicariously, and themselves, but impact on third parties. Consequently, liability will arise both against the employer and the employee professional, in the event of breach of duty by the latter to act with reasonable care and diligence.

The tortious liabilities of medical practitioners in Nigeria will be discussed based on negligence and trespass. This of course will depend on the act or omission leading to the injury. To achieve this objective, there shall be a detailed analysis of the necessary applicable statutory laws, restatement of legal rules and analysis of cases in both the Nigerian and other jurisdictions where the principles of law are similar. It is hoped that at the end of this research there will be rise in awareness and literacy level and therefore there will certainly be rise in litigation and the like on medical cases in Nigeria, as it happens not only in the
south, but worldwide.


1.3. Scope of the Thesis

Geographically, the thesis will cover the Federal Repuplic of Nigeria comprising Thirty-six states. Historically and legally, the research shall cover the laws of medical malpractice in Nigeria during and after colonization, up to the present date, especially, the law of torts. The legal coverage of this thesis is centered around the inherent problems of medical malpractice in Nigeria, that is, the legal responsibilities of the healthcare deliverers and the rights of their patients. As it was said earlier in this chapter, this area of the law is still largely undeveloped because of illiteracy and lack of awareness on the part of health care providers and the recipients alike, as well as religious beliefs on the part of most victims of medical malpractice, especially from the Northern part of Nigeria. In order to make a considerable impact on this thesis on the tortious liability of medical personnel in Nigeria, there is need for proper analysis of the available literature and cases, restatement of legal rules and recommendations for reforms in this area.


1.4 Research Methodology:

This research is certainly not the first work on this area of the law in Nigeria, and may not prove better than the existing ones either. This thesis will, therefore, review the existing rules on the tortious liability of medical practitioners in Nigeria, with a view to making useful suggestions for reforms in this area. As the rules on medical malpractice are virtually settled, an extensive tour will be made, not to ascertain the rules, but rather to assess the extent of medical malpractices, the degree of awareness of legal responsibilities on the part of medical practitioners or again the health care deliverers and, on the other and, the degree of awareness of the legal rights of the patients in torts, and their attitudes towards litigation.

Another method to be adopted in this research will be firstly, to discuss in detail and examine rules and decided cases on the subject matter as are available in the libraries. Originality shall therefore, lie in the appraisal of the existing rules, identifications of defects in the rules and suggestion for reforms.

Questionnaires shall be prepared and administered extensively within the geographical area of this research. The aim is to assess the rate of medical malpractice, the level of awareness of legal responsibilities of the health care deliverers and the awareness of the health care recipients of their tortious rights and their attitudes to vindication. It is hoped that the result of the questionnaire will form an essential part of the bases for suggestion for reforms in this area of the law in Nigeria.

An acute problem to be faced by the Author is that of authorities, especially Nigerian decided cases, which are very few. The reasons for the paucity of Nigerian cases in this regard are that: (1) There is fear probably by the courts that many successful actions may lead to medical malpractice crises, leading to defensive medicine. Defensive medicine is medicine practiced not for the benefit of the patient, but to protect the doctor from litigation, such as, rise in number of caesarean section births as opposed to natural births7;(2) Cost of litigation is high. In Nigeria, poverty rate is very high. Most of the victims of medical malpractice are poor people who cannot engage the services counsels to argue their briefs or even pay court charges. Although some Lawyers in Nigeria accept to work on a contingent fee system, not all patients are able to identify them. A contingent fee system is a system whereby the lawyer undertakes to handle a brief without any prior payment of fee by the client, if the client, if the client at the end of the litigation receives nothing, the lawyer receives no fee, but in a successful case, the lawyer receives an agreed percentage of the damage; (3) The legal Aid System in Nigeria is not very effective and not everybody may be eligible for Legal Aid. So the client has to fund the action himself and risk not recovering cost.

There is also the Doctor – patient relationship. Evidence has shown that family doctors are less likely to be sued as they are more likely to have a relationship of trust with their patients8; Most patients especially in the Northern part of Nigeria, do not have compensation awareness and finally; (5) the cultural or religious norms especially in Northern Nigeria, in which every mishap is attributed to God’s Will.

However, since the general principles of law governing tortious liability of medical practitioners all over the Common Law world are similar, decided cases from other Common Law countries will be employed. It is to be noted that, whever reference is to be made to such cases or authorities, they must reflect directly on a similar point to be discussed or explained or illustrated under tortious liability of medical practitioners in Nigeria. Reference shall also be made to other legal systems whenever the need so arises.


1.5 Organizational Layout of the Thesis

  • Chapter one of this thesis is an introductory chapter, which discusses the objectives of the thesis, its scope, the method by which the research shall be conducted, the organizational layout of the research.
  • Chapter two proposes to discuss Negligence as the bases of liability-of medical practitioners. In this chapter the nature of negligence of medical practitioners shall be discussed and some instance of civil medical malpractice analyzed properly. And finally the liabilities of quacks and Native Doctos shall also be properly analyzed.
  • Chapter three shall discuss trespass and criminal liability of medical practitioners, as well as, the liability of hospital management.
  • Chapter four proposes to deal with defences and remedies to tortious liability of medical practitioners in Nigeria.
  • Finally, Chapter five shall be the summary (Conclusion) and suggestion for reforms in the area of medical malpractice law, especially the tortious aspect in Nigeria.

Chapter Five


Summary and Conclusion

5.1 Summary

5.1.1. Negligence as the Basis of Liability of Medical Practitioners.

Negligence was defined by Alderson B. in Blyth v. Birmingham Water Works Co. (1856)1 as,”…The Omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Simply put therefore, negligence is the breach of a legal duty to take care, which results in damage undesired by the defendant to the plaintiff2. Malpractice ordinarily, therefore, implies that the medical practitioner had the consent of his patient to treat him, but such treatment did not conform with the standards imposed on the medical practitioner by law. In medical professional liability litigation, the trend has been for the patient to bring suit against the physician for alleged failure to use reasonable care and that action is usually in tort. In effect, therefore, the medical practitioner stands to pay compensation at anytime he acts below the standard required of a competent practitioner of his class, experience and circumstance3. This standard is not constant, it is dynamic and changes in accordance with the area of specialization of each doctor. Differences in circumstances and facilities at the place of work may also affect the standard required in each case thus, a more efficient medical services may be expected in a modern well-equipped hospital than a village medical center.

For liability to arise under this head, the alleged negligence has to be proven. And the quantum of proof is a preponderance of probability. The plaintiff has to adduce evidence to show that the medical practitioner was negligent. Generally, in medical malpractice cases, it may be difficult for the patient plaintiff to prove negligence because he may not know what happened. In view of this difficulty of direct proof of fault and of the causal nexus between the fault and injury, the court may allow the plaintiff to rely on the doctrine of Res Ipsa loquitur4. What this implies is that the burden of proof will be shifted from the plaintiff to the defendant.

5.1.2. Trespass And Criminal Liability of Medical Practitioners.

5.1.2.1. Trespass in this area of the law refers to trespass to the person, precisely assault and battery. Trespass to the person means direct and forcible interference with the person of another, without consent express or implied At Common Law, any medical practitioner who treats or carries out any professional activity on a patient without his consent express or implied, such an act can give rise to a cause of action in battery and /or assault. Consent is therefore central to the idea of medical practice and to the doctor – patient relationship and in determining the liability of medical practitioners in battery and assault.

The physician has no right to examine or treat a patient without his consent. The consent that is in issue here, is not the consent as a constitutive element for the conclusion of the contract with the medical practitioner but consent as a condition precedent to and justification for the legality of the physician’s intervention. This principle applies in Nigeria as well as other countries with variations in its technical formulation. This rule is subject to the exception that in an emergency if it is impossible or impracticable to obtain the patients consent or the consent of anyone authorized to assume such responsibility, in which case, the law implies consent5. In conformity therefore with medico-legal ethics6, the medical practitioner is under an obligation to treat without consent, especially when the patient’s condition is such as to imperil his life. Although the Physician has no right to take action by force or by misleading the patient.

The Nature of the consent required to satisfy the requirement of medico-legal ethics is informed consent. Informed consent simply means that a patient who is matured and who is able to take decisions based on sound reasoning must be fully and sufficiently informed about the purpose, nature and the implications of the medical treatment to be administered on him, including the risk involved, so that he may choose whether to go in for it or not. For consent to be valid, the person who gave the consent must have had the requisite capacity to do so, the consent must have been given based on knowledge of what is to be done and the repercussion, and finally if an operation or treatment entirely different from that contemplated becomes necessary, the need, for fresh consent
will arise.

Failure to obtain valid consent, any unauthorized treatment or operation, will give rise to an action in assault, battery and crime.

5.1.3. Defences and Remedies For Medical Practitioners Liability.
5.1.3.1. Defences

In Medical Professional Liability Suits, the burden of proving medical liability of the medical practitioner rests upon the patient8. This means that the evidence presented by the patient must be more convincing than that presented by the physician. The physician is presumed to be free from liability until the contrary is proved. The patient must sustain the burden of proof with respect to the essential allegations of his claim against the medical practitioner. If he charges the practitioner with professional negligence, for example, he has the burden of establishing the standard of care applicable to the physician, and of proving the practitioner’s failure to conform to that standard of care9. Secondly, if the patient alleges technical assault and battery by alleging that the doctor operated on him or treated him without his consent, then he has to prove that he did not consent and that the circumstances did not call for emergency treatment10. Even where the patient plaintiff has discharged himself of the necessary burden of proof, the medical practitioner may still not be liable in medical mishap if it can be shown and successfully pleaded that the medical practitioner has a defence to his act. Some of these defences are contributory negligence, voluntary assumption of risk, statute of limitation and special defences for the injuries sustained and in order to arrive at the amount and the nature of damages that the plaintiff-patient is entitled to, it is necessary to know whether the damages are for personal injuries or for death.

Damages are the pecuniary or monetary compensation that may be recovered in a law suit for breach of some duty or the violation of some right recognized by the law11.


5.2. Recommendation.

  1. It was found in chapter two that in Nigeria there are rampant cases of poor diagnosis, leading to death and aggravation of illnesses, but the victims hardly realize them and even when they do realize them they no not litigate. This is so because most patients are poor and cannot cope with the heavy cost of litigation and other especially the Muslims from the Northern part who believe that every mishap is as a result of the will of God, which no human being can stand to challenge. It is recommended that victims of medical negligence should always go to court to vindicate their rights if they have the means to pay legal cost. Or they could approach the Legal Aid Council and Other; Non-Governmental Associations such as Network for Justice, among others; for legal assistance especially the poor victims. This will shape the conduct of the unruly health care deliverers.
  2. It was also observed in chapter two that even when some victims of medical mishap file their suits, they end up failing in the courts because of failure to conduct post-mortem examination. It is therefore recommended that the plaintiffs should always seek for post-Mortem to be conducted, or proper tests must be ordered to be conducted to categorically ascertain the causes of the injuries or death. This will reduce the cost of litigation, expedite cases in court and also enhance the successes of the complainants.
  3. It is recommended that hospital managements should organize short training courses in law of torts, to educate medical practitioners on the legal responsibilities towards their patients. This will minimize malpractice suits and their attendant huge financial costs and redeem the image of the health care providers.
  4. It is also recommended that where an employee performs his duties recklessly, leading to damages, the employers should also ensure that appropriate disciplinary measures are taken against them. From the findings in our questionnaire, the issue of drug mal-administration is a common phenomenon amongst medical practitioners in Nigeria. It is therefore recommended that, in order to curb such a malpractice, professional bodies should have an input, with a view to taking disciplinary actions against professionals who exhibit or are found to have exhibited such unpardonable levels of in-discipline and negligence.
  5. It has been observed in Chapter two that, injuries arising from x-rays therapy are common in Nigeria, but because of ignorance and illiteracy, victims hardly notice the injuries and even when they do, they hardly have the means to consult specialists to ascertain the cause. Awareness programmes are therefore recommended in order to educate potential patients of x-ray therapy on their rights.
  6. It was also observed in Chapter two that surgical mishap is a common phenomenon of medical negligence in Nigeria, leading to numerous surgical deaths. Investigation from Questionnaires has revealed that a wide range of problems including poor or absent documentation, deficiency in essential services, surgeons operating outside their specialty and the use of poorly-trained and supervised locum are causes of surgical deaths. It is therefore recommended that hospital managements should improve on the available surgical facilities, obtain modern surgical instruments, employ well-trained staff and specialists and retrain them periodically, in order to enhance efficiency and minimize the rate of surgical mishaps.
  7. It is also recommended that, in view of the fact that the consequences of poor blood transfusions could be fatal, medical practitioners and hospitals are advised to be very careful in selecting competent and vveli-qualified laboratory technicians. This will avoid or minimize the rampant suits in negligence arising from blood transfusions.
  8. It was observed in Chapter three that it is mandatory for any medical practitioner to disclosed all facts relating to an operation or treatment to a patient in order to enable the patient give a valid consent. It is submitted that a reasonable man would hesitate to undergo or undertake hazardous treatment and therefore, unless therapeutic reasons contra-indicate, doctors are advised to always make simple, quiet but honest disclosure commensurate with the risks in all cases and let the patients those what risk or risks to run with their bodies. Where, for therapeutic reasons, it is medically and legally unethical to inform the patient of the risks or dangers involved in the treatment or operation, a responsible relative of the patient should be informed on the patient’s behalf and obtain his or her informed consent. Besides informing the patient or his responsible relation of the risks or hazards involved in an operation or treatment, it should always be insisted that a consent in writing in which the patient or someone else on his behalf acknowledges this explanation. This will reduce malpractice suits.
  9. It was observed in chapter four that there is striking absence of Nigerian cases on the defence of voluntary assumption of risk because of the following reasons: Firstly high illiteracy level, especially in the Northern part of Nigeria makes patients to be ignorant of their rights to sue when medical malpractice is committed on them. Secondly, religious belief and poverty have also militated against the patients desire to bring actions against medical practitioners for medical mishaps. The population should, therefore, through the mass media, churches and mosques be educated that it is a religious, social and legal right to sue for medical mishap. The government should also allocate funds to the Legal Aid Councils to assist victims of medical mishaps who because of poverty cannot initiate legal proceedings to vindicate their rights against negligent medical practitioners.10. It was observe is chapter four that any professional mishap on the part of the medical practitioner may give rise to very colossal financial consequence. The cost implication may have a negative effect on the volume of medical practice likely to be carried out. This will have a negative effect on the supply of medical practitioners. In view of the fact that the ratio of doctor-patient is very low compared to our contemporary need, it is recommended that medical practitioner should be very careful in handling the treatment and operation of patients and also take up third-party insurance policy. This will reduce their costs of medical practice in the event of a likely professional mishap.

Tortious Liability Of Medical Practitioners In Nigeria; An Appraisal


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