An Overview of Medical Negligence in Nigeria, Its Injurious Effect on Victim and Consequentia Legalis

By Aregbesola Adetayo Favour

 INTRODUCTION

The Medical Profession is as delicate and sensitive more than we can picture or imagine, due care and diligence should therefore be exercised in order to avoid any negligent act. Same goes for the life of any patient seeking medical attention in any medical facility, their lives should not be snatched from them within a twinkle of an eye because of a doctor’s negligence. The right to life is an inalienable right provided for every citizen by the constitution, and should not be taken, except within the deprivations contained in Section 33(2) of the Constitution.

Often times, we see the inscriptions like “The skill to heal and the spirit to care” and “We care but God heals” on hospital buildings. The contention is, how true and accurate is this?, how often do Medical Practitioners act according to this phrase?, how have they diligently and faithfully applied it to their daily activities?. What degree of care can be said to have been exercised before healing can be left to God?. As funny as it sounds, God will not descend from heaven to perform physical operations or inject Patients, Medical Practitioners should put into action all they can, to save their Patients’ lives and desist from hiding under the spiritual healing of God to cover up their negligent act.

Where some negligent act of a Doctor can simply be corrected by conducting another surgery, most may never be corrected, while some may lead to the slow if not instant death of the Patient, should we leave those acts unquestioned?, do we accept every misfortune or mishap as the will of God and move on like nothing happened, and let the doer of such act walk away bearing in mind that similar act can be done to another patient?. From various analysis, the problem is not just the low rate or people’s attitude towards a negligent Doctor but their failure and ignorance to recognize their legal rights.

This article is to examine the duty of a medical practitioner to his patient, where the breach of such duty amounts to a negligent act and steps the patient should take towards redress.

Medical negligence is hinged on the Tort of Negligence, as negligence may occur in any profession or people’s daily dealings with their neighbors, it’s correct to say that, negligence is the tree where every breach of negligence emanated from.

NEGLIGENCE

Negligence literally is, the failure to take proper care of something. Negligence (Latin Negligentia), is a legal concept in the Common Law system, usually used to achieve compensation from injuries (not accident). According to the Black’s Law Dictionary, Negligence is the omission to do something which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs, would do or something which a prudent and reasonable man would not do. It is the failure to use such care as reasonable, prudent and careful person would use under similar circumstances.

In the words of BARON ANDERSON in BLYTH v BIRMINGHAM WATER WORKS (1986)11 EXCH 781 at 784, “Negligence is 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.”

The case of DONOGHUE v STEVENSON (1932) AC 562, also known as ‘the snail in the bottle case’, is a significant case with regard to Law of Negligence. The ruling of this case established the Civil Law, ‘Tort of Negligence’ and obliged businesses to observe a duty of care towards their customers.

On the evening of Sunday, 26 August 1928, Mrs. May Donoghue took a thirty minute tram ride from Glasgow to Paisley. She met a friend at the Wellmeadow Café, who purchased her an iced drink made from ice-cream and ginger beer. The bottle bore the name of its manufacturer, ‘D. Stevenson, Glen Lane, Paisley’ and was a dark, opaque colour. Mrs. Donoghue claimed after she had consumed most of the ginger beer she saw the remains of a badly decomposed snail float out of the bottle that was being poured into her glass. In the following days Mrs. Donoghue became ill and upon seeking treatment was diagnosed with severe gastroenteritis and shock. Mrs. Donoghue took legal action against David Stevenson, the ginger beer manufacturer. Her chances of success seemed limited. She could not sue Stevenson for breach of contract as she herself did not purchase the drink. It was also unlikely she could prove Stevenson had sold her a dangerous product or knew that his products were defective. Instead, her solicitor, Mr. Walter Leechman claimed D’ Stevenson owed a duty to his consumers to take reasonable care to ensure his products were safe for human consumption. The first Judge in this case, Lord Moncrieff, decided in favour of Mrs. Donoghue, but the Scottish Court of Session, Second Division dismissed Mrs. Donoghue’s argument that she was owed a duty of care. The case was further appealed in the House of Lords in London, on 26 May 1932, where Lord Atkin arose to deliver a judgment that would have a lasting impact on society. His decision established that a manufacturer of a product owed a consumer a duty of care.

In ODINAKA V MOGHALU (2992)4 NWLR (PT.233) 15 SC, AKPATA JSC summarized negligence as, “the omission to do something, which a reasonable man under similar circumstances would do or the doing of something, which a reasonable and prudent man would not do”.                                 

From the aforementioned, one can say that, Negligence is the failure of a person to exercise a duty of care that rests on him and which causes damage to another person in all facet of human endeavor, which activities have direct dealings with human. The law of negligence is pervasive, in that, it is applicable to the conduct of every person, whether a layman or a professional. As such, certain ethical standards are required of professionals (Lawyers, Engineers, Medical Practitioners, and Architect etc.).

This is particularly so in the Medical Profession, where negligence may not only cost a man his limb or hand but his life, which is irreplaceable.

WHAT THEN IS MEDICAL NEGLIGENCE?

Medical Negligence is the failure on the part of a Medical Practitioner to exercises reasonable degree of skill and care in the treatment of a patient, such that, if a Doctor treats a Patient in a negligent manner, causing harm or worsening the existing health condition, the patient can bring an action in negligence against the Doctor, claiming damages for the injury suffered. Medical Negligence can be defined as improper, unskilled or negligent treatment of a patient by a Physician, Dentist, Nurse, Pharmacist or other Health Care Professionals. It is an act or omission (failure to act) by a Medical Professional that deviates from the standard of care. It similarly occurs, when the Medical Practitioner (Medical Practitioner here refers to, Doctors, Health Care Providers such as, Nurses, Pharmacist and other Health Care Professionals) fails to provide the care which is expected in each case this resulting in injury or death of the patient.

Medical Negligence may arise in the following circumstances:

The acts that gives rise to claim of Medical Negligence are as diverse as the practice of medicine itself. It is possible for any diagnose or treatment to be performed in a careless manner or fashion, or for some essential steps to be negligently omitted. All that is required is that the negligent act or omission must meet the necessary requirements of the law. Some acts or situations that recur as a result of the acts of a Medical Practitioner and have been judicially noticed as acts that amount to medical negligence include

1. The failure of the Medical Practitioner to conduct a proper diagnosis on the Patient or misdiagnosis. The question here is, in the conduct of such diagnose, whether the Doctor acted as a reasonable Doctor. One should bear in mind that, Medical Practitioners are humans, not all errors they make in diagnosis is necessarily negligent. It will depend to a large extent upon the difficulty of making the diagnosis given the symptoms presented, the diagnostic techniques available such as tests or instruments, and the danger associated with alternative diagnosis. In UNIVERSITY OF ILORIN TEACHING HOSPITAL v AKILO (2000) FWLR (Pt.28)2286, it was held that a Medical Practitioner in the Appellants employment would be liable in negligence if without due care and skill resulting in error of treatment he, for example, describes fractures as dislocations and dislocation as fractures. 

2. Retention of Objects in Operation Sites. This is a common occurrence in Nigerian Hospitals where swabs are left in the stomach of Patients after operations. Surgeries are performed by Doctors, while the Theatre Nurse is responsible for Swab Count (the counting of instruments used in surgery). Where swabs, packs, towels or instruments are left behind in the abdomen after operation, it is illustrative of negligence. Here, an action in negligence will lie not only against the Surgeon but also the Nurse and perhaps, the Hospital Management. In ANDERSON v CHASNEY (1940)4 DLR 223 (SCC), the child-patient died following an operation to remove his tonsils because a sponge was left in the base of the child’s nostril causing suffocation. The court held that, while the method in which the operation was performed may be purely a matter of technical evidence, the fact that a sponge was left in a position where it was, is dangerous and is one which the ordinary man is competent to consider in arriving at a decision as to whether or not there was negligence. The defendant Doctor and his team were held liable.

3. The failure to give proper attention to Patient. The failure of a medical practitioner to attend promptly to a patient requiring urgent attention may amount to negligence depending on the circumstances. In OLOWO v NIGERIAN NAVY (1940) 4 DLR 233 SCC, where a medical practitioner employed by the Nigerian Navy was held liable for failure to examine a patient who was admitted into the hospital, leading to the loss of her pregnancy and womb.

4. Disregarding or not taking full cognizance of a Patient’s medical history. Where a Doctor has failed to take a full medical history before commencing treatment on a patient, he is said to be liable for negligence. In CHIN KEOW v GOVERNMENT OF MALAYSIA (1967) 1 WLR 813, the Doctor did not make an enquiry into the patient’s medical history before giving an injection of penicillin, and the patient died from an allergic reaction to the drug. It was similarly shown in the trial that the Doctor had on several occasions treated other patients with similar disregard for having a full medical history despite knowing the rangers of his actions.
5. Improper Medication or administration of injection or dosage. Giving of injection may become ground for an action in negligence especially where the Doctor or the Nurse was incompetent in the administration of the injection. For instance, where they are given in the wrong place, or the hypodermic may contain the wrong substances, or an excessive dose, or the needle may break. In CALDEIRA v GRAY (1936) 1 ALL ER 540, where the range to the sciatic nerve following an injection in the buttocks was found to have been as a result of negligence.
6. Failure to seek and get consent from the patient. Consent of a patient is very germane in Medical Profession, without it, the Doctor will not have any authorization to commence any form of investigation on, or treatment of the patient. Where a Doctor fails to acquire consent from his patient before treatment, he becomes liable not only in negligence but battery, as well as professional misconduct. See MDPDT v OKONKWO (2001) 7 NWLR (Pt.711)206.
7. Poor follow-up or aftercare
8. Premature discharge of Patient
9. Failure to recognize symptoms

• Incompetent assessment or Error in treating Patients

Medical Negligence as a tort, is the breach of a legal duty to take care, which results in damage, undesired by the Doctor to the Patient. Like every tort, there are certain critical and essential elements that must be established in order to succeed in an action against a negligent Doctor. The ingredients required in an action for the ‘Tort of Medical Negligence’, are not any different from the element of the Tort of Negligence generally. According to WINFIED AND JOLLOWICZ, the ingredient for the proof of negligence include:

• a legal duty on the part of A towards B to exercise care in such conduct of A, as falls within the scope of the duty
• breach of that duty
• consequent damage to B.

The above position was similarly reaffirmed by the Supreme Court in the case of HAMZA v KURE (2010) 10 NWLR (PT.1203) 173 SC. In IGHRERINIOVO v SCC NIG. LTD & ORS(2010)10 NWLR(PT.1203) 13-14, the Supreme Court held that, “to succeed in an action for negligence, the plaintiff must show that the defendant owes him a duty of care and that he has suffered damage in consequence of the defendant’s breach of duty of care towards him”. See also UNITED MICROFINANCE BANK LTD EKPAN v DUKE ADJAKA (2015) LPELR_24541 (CA).

The three ingredients mentioned above are sine qua non to the proof of liability in an action for negligence and must be priced concurrently. This is a trite position of the law as far as the issue of prove of negligence is concerned.

Adopting the elements to prove under general negligence and as outlined by WINFIELD AND JOLLOWICZ, it was posited that for medical negligence as well as any kind of negligence to be successfully proven, three ingredients must be established by the plaintiff. They are:

• that the Doctor owed a duty of care to the patient
• that the Doctor was in breach of that duty
• that the patient suffered damage as a result of the breach of duty.

THE DUTY AND STANDARD OF CARE

The Black’s Law Dictionary explained “duty of care” as a legal relationship arising from a standard of care, the violation of which subjects the actor to liability. This duty of care determines as a matter of policy in all cases of negligence, whether the type of loss suffered by the plaintiff in particular manner in which it occurred can ever be actionable. In KABO AIR LTD. v MOHAMMED, the word “care” was defined to mean “…serious attention or heed”. The court held further that, under the Law of Negligence or of Obligation, duty of care means the conduct demanded of a person in a given situation and that typically involves a person giving attention both to possible danger, mistake and pit falls and to ways to minimizing those risks.                    

LORD HEWART, CJ in R v BATEMAN(1925)ALL ER P45 observed that, “If a person holds himself out as possessing special skill and knowledge and is consulted as possessing such skill and knowledge, by or on behalf of a patient, he owes to the person or client to use due caution in undertaking the treatment”.  

It is obvious that for practical and legal purposes, the principle underlying professional skill is expected to demonstrate the level of competence associated with the proper discharge of the duties of the profession. Where he falls short if that and causes injuries to another, it is clear that he is not demonstrating the requisite ability and will be deemed liable in Law. It had been established that, for a duty of care situation to exist in Medical Negligence, there must be a Doctor-Patient or Nurse-Patient relationship. This relationship may be formed extremely easily, and by no means depends on any formal acceptance of a patient by a Doctor or nurse by the giving of a card to the patient. It has been stated, and quite rightly too, that even in an acute emergency, once a Medical Practitioner approaches an ill or injured person with the aim of assisting him, then a completely valid relationship is thus constituted. This is even if the patient is unconscious and ipso facto unaware of the presence of the Medical Practitioner. Also, the relationship is created, as is normal in Nigeria, where the practitioner acted as a “good Samaritan”, he is still obliged to demonstrate skill and care and where he breaches that duty, he will be held liable in negligence. It is trite that the Doctor’s duty of care is owed to the patient. In certain circumstances, the duty of care may extend to third parties. For example, when a Doctor conducts a medical examination at the request of an employer, prospective employer, or insurance company, there is no doubt that in addition to the duty owed to the person on whom the examination is made, he also owes a duty to the employer who is a third party to the Doctor-patient relationship. In THOMSEN v DAVISON (1975) QD.R. 93, the duty of care to conduct medical examination to employees in an establishment, was held to extend to the employers. The duty of care also extends to third parties in the case of psychiatric treatment, where due to the failure of the duty of care of the Doctor, the patient causes injury to a third party. The Doctor in this case will be held liable in an action on negligence.                                                                           

The duty of care owed by the Doctor to the patient also extends to the duty of confidence in respect of information concerning his patient which he acquires in his capacity as a Doctor, whether from the patient himself or from others. This obligation is widely regarded as one of the cornerstone of the Doctor-patient relationship and the duty of care.

Duty of care similarly involves carrying out proper diagnosis. This the doctor must do before undertaking any form of medical treatment so as to ascertain the true status of his patient and to help him determine the mode of treatment. In order to achieve this, the medical practitioner may need to carry out some preliminary tests, e.g. Blood or Urine tests, Scan and X-rays where the need arises. This exercise will enable the Medical Practitioner take informed decision so as to avoid situation such as that in DE FREVILLE v DILL (1927) ALL ER 205, the Medical Practitioner carelessly certified a man as being of unsound mind. Flashback to the diagnosis our very own Chief Gani Fawehinmi got here in Nigeria, until he went to the United Kingdom where he was properly diagnosed with cancer of the lungs.

A Doctor also has a duty of care to give proper treatment and counseling. In accordance with best practices, the Medical Practitioner is expected to treat his patient with diligence and to counsel him as to the side effects of such treatment. He is not to hold back any information from the patient in relation to the said treatment, see ROGERS v WHITAKER (1992)67 AL ER 47. Where the patient was informed of the type of treatment but the medical practitioner failed to give sufficient details of the risks or side effects involved, the patient would only have a remedy in negligence,

A typical example in Nigeria, the death of Mrs. Stella Obasanjo, Former First Lady of Federal Republic of Nigeria (1998 – 2005) is a case in point she went for liposuction in a Spanish Clinic and died from post-surgery complications. A tribunal in Spain suspended the doctor from Medical Practice for three (3) years and was told to pay the sum of £120,000 as damages to the son of the deceased.

 BREACH OF DUTY OF CARE

The failure of a Medical Practitioner and a Hospital to observe the respective duties of care as required by the law will result in breach of such specified duty. For a plaintiff to succeed in an action of negligence against a Medical Practitioner, he must prove that there has been a breach of duty of care by the defendant.

In ANYA v IMO CONCORDE HOTEL LTD (2002) 18 NWLR (PT 799) 377, the Supreme Court held as follows:

 “The most fundamental ingredient of the tort of negligence is the breach of the duty of care, which must be actionable in law and not a moral liability. And until a plaintiff can prove by evidence the actual breach of the duty of care against the defendant, the action must fail”.

For a Doctor to be held liable for breach of duty of care, he must be found to have acted below the standard of care expected of him in the particular circumstance. The dictum of Alderson B, in BLYTH v BIRMINGHAM WATER WORKS (1986) 11EXCH 781 at 784, best explains the test for determining whether there has been a breach of duty of care. The Court had stated that: “Negligence is 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”. 

The test for the standard of care in consideration of whether or not there is a breach of duty is an objective test of what the reasonable Doctor will do.

 DAMAGE ARISING FROM THE BREACH OF DUTY

The third element of the tort of negligence is that the plaintiff’s injury or damage must have been caused by the defendant’s breach of duty. It is not enough that a Medical Practitioner owes a duty of care to the plaintiff and that he breached that duty of care, it is also important to show that there is consequential damage as a result of the breach, otherwise, the claim of the patient will fail.

However, burden of proving this is on the plaintiff. One case that illustrates this principle is the case of BARNETT v CHELSEA AND KENSINGTON HOSPITAL MANAGEMENT COMMITTEE (1969) 1 QB 428, where although the Doctor was held to have breached his duty of care to the patient, the deceased’s widow’s action was dismissed because she failed to prove that the death was caused by the Doctor’s negligence and evidence showed that the deceased would have died in any event, even if he was treated with care.

Damage within the context of negligence, means loss or injury which can be measured and compensated for in terms of money. The word ‘damages’ was defined in the case of, ACCESS BANK PLC. v UGWUH(2013)LPELR-20735(CA)P 36-37,para D-A, to mean:

Damages is the disadvantage which is suffered by a person as a result of the act or default of another. It is the loss or deterioration caused by the negligence, design or accident of one person to another, in respect of the latter’s person or property. An injury produces a right in them who have suffered any damage by it to demand reparation of such damage from the authors of the injury. In other words, damages is a pecuniary compensation or indemnity which may be recovered in the courts by any person who has suffered loss, detriment or injury, whether to his person, property, or right, through the unlawful act or omission or negligence of another. It is money compensation sought or awarded as a remedy for a breach of contract or tortuous acts.

It is important to note, that, to succeed in an action, the plaintiff must not only show that he suffered damage, but must prove a direct nexus between the negligent act or omission alleged and the resulting injury. The plaintiff must also show that the injury suffered was not too remote the cause of the negligent act of the defendant.

 EFFECT OF MEDICAL NEGLIGENCE ON VICTIMS

The side effects of medical negligence can vary from person to person, and some may not even be aware they were the victim of medical negligence until it is too late. Consequences of medical negligence can extend far beyond the physical scars, as emotional and psychological trauma can be sustained due to the stress, isolation and vulnerability the victim might experience.

Some of the effects of medical negligence on patients include;

• Death of the patient
• Disfigurement, as a result leading to stigmatization
• Increased medical expenses to keep up
• Infertility
• Chronic pain on any part of the body
• Loss of employment ( instances where a patient losses his eyes or hands and they are essential to get the work done)
• Birth Defect and so on.

 The effects of medical negligence also vary by the type of injury a person sustained. A surgery error could have multiple life-altering side effects. Furthermore, many persons experience psychological distress and find themselves unable to trust medical personnel after such an incident. 

WAY FORWARD FOR VICTIMS OF MEDICAL NEGLIGENCE

Medical negligence usually results in injury or aggravated health conditions and deaths in extreme cases. A Victim of injuries arising from medical negligence or the estate (family) of a deceased patient may sue the Medical Practitioner and Hospital concerned to seek redress. Victims of medical negligence may resort to Alternative Dispute Resolution (ADR) in order to save time and cost, or employ the services of a competent legal practitioner to file a law suit in Court against the erring or negligent Medical Practitioner to claim damages.

Once a patient successfully proves negligence against a Medical Practitioner, he becomes entitled to damages, the quantum of which depends on the measure applied by the court. The victim of medical negligence has a number of options for redress; he may pursue civil claims against the Medical Practitioner or other service providers or even the Hospital Management for alleged torts. The victim is also entitled to complain to the Medical and Dental Practitioners Disciplinary Committee, for disciplinary measures to be taken against the erring practitioner.

Section 15(3) of the Medical and Dental Practitioners Act establishes the Medical and Dental Practitioners Investigation Panel (The Investigation Panel) which is saddled with the responsibility of conducting preliminary investigation into any case where it is alleged that a registered person has misbehaved in his capacity as a Medical Practitioner or Dental Surgeon amongst other functions. The Investigation panel after investigation will determine whether or not a prima facie case has been established against the practitioner. If a prima facie case is established against the Practitioner, the Investigation Panel will frame a charge against him before the Medical and Dental Practitioners Disciplinary Tribunal (the Disciplinary Tribunal). Victim(s) can make report to The Police, who would conduct criminal investigation, reveal gross negligence, recklessness or wanton disregard to the life of the said Patient, as such a criminal prosecution may also be instituted against the erring Practitioner where his offence is considered to be criminal in nature(the essence of this is to punish him for the offence), this may occur where a Medical Practitioner negligently causes the death of his patient, he may be tried for the offence of manslaughter for which he may be imprisoned or fined or both. Apart from the severe offence of manslaughter, a Medical Practitioner be charged with other offences flowing from his negligent handling of his patient’s case.

In OKEKEARU v TANKO (2002) JELR 51968 SC, the allegation against the Appellant was that he without care and skill negligently amputated the Respondent’s injured finger which permanently disfigured and incapacitated the Respondent in handling objects. The claim based on battery was sustained by the Supreme Court which held that, the Respondent’s finger was intentionally amputated by the Appellant. It is important to note that, payment of damages is the most common and sorted remedy by victims of Medical negligence and the amount of recoverable damages depends on the type of damage claimed and upon the ability of the claimant to prove same.

PENALTY FOR MEDICAL NEGLIGENCE

The Disciplinary Tribunal established by Section 15(1) Medical and Dental Practitioners Act is charged with the duty of considering and determining any case referred to it by the investigation panel. Where the Disciplinary Panel finds a practitioner guilty of gross conduct in any professional respect, in line with the provisions of, Section 16(1) Medical And Dental Practitioners Act, the Disciplinary Tribunal may order the Registrar to strike the Practitioner’s name off the register; or suspend the person from practice by ordering him not to engage as Medical Practitioner or Dental Surgeon for a period not exceeding six months; or admonish the practitioner.

It is trite that criminal law does not generally punish negligence. This is due to the fact that, Section 24 of the Nigerian Criminal Code 1990, states that “no person can be criminally responsible for his unwilled acts or omission or even the accidental consequence of his willed acts”. But this section is subject to the express provisions of the Code relating to negligent acts or omission. In a case where medical treatment results in the patient’s death in consequence of the gross negligence of the Medical Doctor, a charge may be sustained against him for manslaughter as was the case of R v AKERELE(1941) 8 WACA 56 where a Medical Practitioner who applied overdose of Sobita on a number of children which led to their death was held (by WACA, although later reversed by the Privy Council on technical ground) to have been criminally negligent and accordingly convicted for manslaughter. This is because, under Section 303 of the Nigerian Criminal Code 1990, every person, except in case of necessity, undertakes to administer surgical or medical treatment has a duty to have reasonable skill and to use reasonable care in administering the treatment and if any negative consequence results to the life or health of the patient as a result of his breach of this duty, he is held to have caused such consequence. However, because negligently causing death is the crime of manslaughter, such a Doctor will be found guilty of manslaughter.

The criminal liability of a Medical Practitioner who has exhibited gross negligence in the management of a patient now enjoys universal acceptance.  Take for example the case of Dr. Conrad Murray, Michael Jackson’s personal physician, who was found guilty of involuntary manslaughter i.e. criminal negligence, it was established during trial that Dr. Murray administered a lethal dose of anesthetic propofol on Michael Jackson in his house and left him without medical supervision. The Court described Dr. Murray’s conduct as reckless and he was sentenced to two years imprisonment.

It is important to note that, upon proper investigation and proof of negligence, the negligent Medical Practitioner is liable in damages to the plaintiff.

 SUGGESTIONS AND CONCLUSION

Medical Negligence is a three-part test, whereby a duty of professional care is owed to the Patient and upon breach of that duty, the patient suffers an injury, as such, patients should bear in mind that they do have a legal right that should neither be tampered with or infringed upon, they should ask questions, voice their complains and seek redress. The low level of litigation on medical negligence can to an extent be attributed to the zero or low degree of enlightenment amongst the Nigerian populace. Majority of Nigerians are ignorant or best put, not conscious of their legal rights as regards medical attention sorted for, many hardly challenge the infringement of such rights in court and questions are rarely asked.

To cultivate the habit of litigation and seeking redress by patients who have suffered damage resulting from negligence, there is a need for natural sponsored awareness campaign, thereby awakening their sub-consciousness as to their legal rights. Doctors similarly are not left out, they should be enlightenment and properly informed on their rights and duties expected of them by their patients.

In addition, Medical Doctors should be mandated to treat or operate upon patients who are in critical conditions. Indeed, the practice is set up to make money, but, the act of saving lives is a calling that should be given priority over other considerations, where a Medical Practitioner refuses, he should be held liable. In some cases, medical negligence may be the result of inexperienced Doctors, so it is important to state that not all Doctors who have graduated from the University be allowed to manage certain types of ailments or allowed to open a clinic immediately after leaving the university. The Nigeria Medical Council should lay down standards of fitness to practice and also exercise discipline over the Medical Practitioner whose professional negligence is an embarrassment to the council.

Similarly, The Nigerian Medical Association should be encouraged not to clamp down on any of its members who testifies for victims against a Medical Doctor. This will encourage high standard practice among medical practitioners.

It is advisable that parties should embrace Alternative Dispute Resolution (ADR), thereby evading unnecessary cost of litigation, waste of time and challenges that may come with litigation. Where that fails, the parties may then proceed to file a law suit. On instituting an action in court (either civil or criminal), the Judiciary should also without prejudice, make effort in delivering not only a fair but, swift judgment. Delay in reaching verdict should be avoided.

Mental health is so underrated in the society we live in, victims are advised to seek a Therapist to help them get over any mental degradation that may have arisen as a result of this. As a result of some complications that the negligent act might have caused and some irreparable damage that the patient is likely to suffer, even though his life was spared, some may go suicidal, some may decide to disassociate themselves with others and may show less interest in things of life. To help them overcome this and other environmental factors such as, stigmatization by the public, the service of an expert Therapist is needed.

In conclusion, we have a long ladder to ascend as a nation towards the growth and improvement of the Health sector, by providing and enabling a serene environment with modern facilities and innovative equipment to aid Medical Practitioners in carrying out their duties. The Nigerian Government, Private Organization and other Specialized Agencies should make efforts to improve its health care system, especially the great deficit in good health care facilities. This is because the gross inadequacy of good medical facilities is a major cause of the injuries that patients suffer in the hospital and has aided or contributed to the negligence of Doctors. If not totally eradicated, negligence can be reduced to the minimum, if this infrastructural deficit is fixed.

Aregbesola Adetayo Favour is a 500 level law student of Ekiti State University, Ado-Ekiti, Ekiti State. She can be reached at aregbesolaadetayo@gmail.com or aregbesolaadetayo@yahoo.com

 REFERENCE

1. Constitution of the Federal Republic of Nigeria 1999(as amended)
2. The Nigerian Criminal Code Act 1990
3. Medical and Dental Practitioners Act Cap.M8, LFN 2004
4. (Mrs.) F.C.L Plate v Chairman Medical and Dental Practitioner Investigating Panel & ors (1992) 5 NWLR 553
5. Bryan A Garner & Henry Campbell, Black’s Law Dictionary (11th ed. Thomas Reuters 2019)
6. HYGEIA HMO, ‘What is Medical Negligence?’

       https://www.hygeiahmo.com/medical-negligence/ Accessed on October 19, 2020

7. Free Dictionary by Farlex

https://www.thefreedictionary.com/ Accessed 26 October, 2020

8. Peel W. & Goudkamp J., Winfield and Jollowicz on Tort (19th ed. Sweet & Maxwell 2014)
9. Izzi M.O, ‘An Overview of Medical Negligence in Nigeria’ [2012] Port Harcourt Law Journal vol. 4 No.1

• Oyebode F, ‘Clinical Errors and Medical Negligence’ {2013} Medical Principle and Practice Vol.22, No 4
• Zontong, K.M {2015} ‘An Analysis of the Proof of Medical Negligence’ Faculty of Law, University of Jos
• Okojie E, Professional Medical Negligence in Nigeria, University of Benin
• Ojo Titilayo, ‘Medical Practice and Negligence in Nigeria’, available at

https://www.manifieldsolicitors.com/2018/09/10/medical-practice-and-negligence-in-nigeria/.Accessed October 20, 2020

• Okakwu Evelyn, {2016} ‘Nigerian Hospitals where medical negligence causes death of women and babies’.

https://www.premiumtimesng.com/news/headlines/219289-investigation-nigerian-hospital-medical-negligence-causes-death-women-babies.html  Accessed October 27, 2020.

• https://academic.oup.com/bjaed/article/11/4/124/266921 Accessed October 27, 2020
• https://www.mondaq.com/nigeria/healthcare/754598/medical-negligence-in-nigeria-addressing-the-public-on-its-scope-and-the-resultant-legal-implications Accessed October 29,2020
• https://www.medical-solicitors.com/medical-claims/appendicitis/ Accessed October 30, 2020
• Pictures Credit: Shutterstock.com, Legal Bites, Palinterest, Alamy, Huffpost.