INTRODUCTION:
The health care system in Nigeria has recorded unimaginable and unsatisfactory performance in quality delivery for a very long time. Medical services are still not accessible to many people especially the poor. Patients receive substandard care in many cases due to the negligence on the part of one health care provider or another and with high costs of accessing these services, the patients resort to quacks who may offer cheaper services, while causing greater harm or damage to the injured patients and their families.
This default position has made most health care providers indifferent in the presence of gross medical negligence. Though most Nigerians may be aware of their rights to institute legal action in situations such as negligence with serious harm or death, but, the socioeconomic factors, cultural, and religious notions among other reasons within the society often makes litigation impossible for an individual. Attributing every medical adverse event in the course of treatment as "God's Will" and the saying "It's God's Time" for every death among most African people has also become a great impediment to curbing medical negligence in our Country.
This work in its careful analysis of medical negligence and its defenses will be of invaluable assets to legal, medical and untrained minds in the society in which it will bring to focus instances when health care providers can be held liable in negligence.
DFINITIONS:
Negligence is a breach of a legal duty to take care which results in damage to the claimant.
Medical Negligence constitutes an act or omission by a clinician in which the treatment provided falls below the accepted standard of care resulting to injury or death of the patient.
TYPES OF ACTS OR OMISSIONS THAT WOULD AMOUNT TO MEDICAL NEGLIGENCE
Rule 29.4 of the Code outlines examples of what acts or omissions constitute professional negligence as follows:-
Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so;
Manifesting incompetence in the assessment of a patient;
Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them;
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, 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;
Failure to obtain the informed consent of the patient before proceeding on any surgical procedure or course of treatment when such consent was necessary;
Making a mistake in treatment e.g amputation of the wrong limb, carelessness that results in the termination of a pregenancy, prescribing the wrong drugs, or dosage in error for a correctly diagnosed ailment, etc;
Failure to refer, or transfer a patient in good time, when such a referral or transfer was necessary.
Failure to do anything that ought reasonably to have been done under any circumstances for the good of the patient;
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.
FORMS OF LIABILITY FOR MEDICAL NEGLIGENCE
CRIMINAL LAIBILITY
Criminal law obviously applies to health care providers, and the purpose of criminal prosecution is to punish the offender. In Nigeria the Criminal Law codes applies.
Section 303 of 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 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 skill and to use reasonable care in doing such act; and such a person by reason of any omission to observe or perform that duty. In R v. Adomako, an anesthetist was found guilty of manslaughter where he caused the death of a patient due to his gross negligent in attention during surgery.
Consequently, for Criminal liability, the degree of negligence required of health care providers is that it should be “gross” and not “mere” negligence. The Privy Council in shading more light on what amounts to gross negligence held thus “ it must be remembered that the degree of negligence required is that it should be gross, and that neither a jury nor a court can transform negligence of a lesser degree into gross negligence by giving it that appellation”.
CIVIL LAIBILITY
The most common and potent basis of civil liability for medical malpractice cases is negligence. The main rationale for liability for medical negligence is that, someone harmed by the action of a health care provider deserves to be compensated by the injuring party, he may sue for negligence against the provider for the injury suffered.
THE NEGLIGENCE TEST
To determine negligence, a three stage test must be satisfied. Thus, in order to succeed, the law requires the plaintiff to show that:
the defendant owes him a legal duty of care,
there was a breach of that duty, and
he suffered injury/ damages as a direct result of the breach.
DUTY OF CARE
The relationship between a health care provider and a patient is a special one. When a patient is admitted to a hospital, a duty of care relationship is created, which can be applied to any health care provider coming into contact with the patient not just the admitting team. In Hedley Byrne & Co. Ltd V. Heller & Partners Ltd, Lord Morris noted as follows:
“it should now be regarded as settled that if someone possessed of a special skill undertakes quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care arises…”
BREACH OF DUTY
Breach of duty means that a defendant’s conduct fell below the required standard expected of him. Where there has been a potential breach of professional duty, this is reinterpreted as that of comparable professional standard.
The mere fact that a mishap occurs does not establish negligence on the part of the provider as long as he followed the approved procedure for the treatment offered. There must be some form of standard against which the conduct of the health care provider has to be examined – that is the standard of a reasonable, skillful health care provider of the same experience, placed in the same circumstances. However, the standard is relative that is in each circumstance, the standard will be judged by factors as time, place and availability of facilities.
In every case, the law requires that the health care provider’s conduct must not fall below expectation or standard. Therefore he must always act like a reasonable, skillful and competent provider in order to avoid liability.
DAMAGE
Establishing causation can be difficult, as it must be demonstrated that “but for” the doctors action/inaction harm would not have occurred. This remedy is recognized by law in order to assuage the feelings of the injured plaintiff.
The onus of proof lies with the plaintiff and usually, if a provider does not admit negligence in a given case, then the plaintiff will have to call evidence to show negligence on the part of the provider, that is to show that the conduct of the provider fell below the required standard in a particular case, then the onus of proof shifts to the defendant, which if not discharged will lead to his liability. If damage would not have occurred but for the providers act, then his act caused the damage and he should be liable. On the other hand, if the damage would have occurred despite the provider’s act, then his acts did not cause the damage and should he escape liability.
MEDICAL NEGLIGENCE INCIDENTS: FEW CASE STUDIES IN NIGERIA
The case studies presented here are derived from F.N Chukwuneke’s experience in clinical practice and complaints from some patients in Nigeria. These cases were not litigated, and there were no medical liabilities established.
Case 1: Medical error
A 27-year-old woman had a upper right jaw swelling following a poorly healed extraction site. The swelling extended to her right upper eye-lids prompting her seeking for a doctor (maxillofacial surgeon) attention. The doctor suggested and carried out a biopsy to determine the histopathological status of the lesion before performing further treatment. The biopsy was performed, and the specimen was sent to a certified oral pathologist. The result confirmed a case of fibrosarcoma (cancer) which was sent to the attending surgeon. The surgeon was in the dilemma of the next treatment options since the result came out as a cancer case and the alternatives considered were radiotherapy and surgery. The radiotherapy was to commence before the surgery, but the doctor on a second thought, decided to carry out the surgery before radiotherapy. During the surgical procedure, the surgeon observed that the lesion was not presenting such as a cancerous lesion and promptly called the oral pathologist for second assessment and thereafter the lesion was confirmed noncancerous (giant cell lesion).
Cases 2: Medical error
A 17-year-old boy reported to the oral and maxillofacial surgery unit with 2 months history of left mandibular swelling following tooth extraction. The patient had gone to a nearby public hospital when he noticed a little swelling at the buccal aspect of the first molar on the lower right jaw. A peri-apical radiograph was taken by the attending dental surgeon after which he carried out an extraction of the tooth without checking and understanding the X-ray findings. A week later, the swelling became bigger prompting the patient going back to the dentist who attempted aspirating the swelling. Within the next few days, the swelling had grown bigger with serious pain, discomfort, and facial distortion. The patient at this point had to seek a second opinion. On seeing the patient, the maxillofacial surgeon looked at the previous X-ray and observed the widening of the periodontal ligament that suggested a cancerous lesion (sarcoma) which the dentist could not see. Biopsy result confirmed osteogenic sarcoma. At this stage, the lesion was inoperable. The patient died 3 weeks after commencement of chemotherapy.
Case 3: Clinical negligence
An anesthetic doctor was in a haste to intubate a patient for a major surgery. Unfortunately, the patient he was attending to and trying to intubate was a difficult case for easy intubation because of the involvement of the lesion in the head and neck region. The patient became seriously traumatized both orally and intra-nasally without progress getting him intubated, prompting the surgeon to advice the anesthetics to resuscitate the patients so that tracheotomy could be carried out to facilitate the surgery since it was obvious that he could not intubate the patient in a conventional way. The anesthetic doctor assured the surgeon that everything was perfect that he could go ahead and perform the tracheotomy that he was going to pick something and come back. Not minding the vehement protest from the surgeon he left the patient. On trying to perform the tracheotomy, the surgeon observed that the patient was no longer breathing and all attempt to revive the patient was fruitless.
Case 4: Medical error/malpractice
An elderly woman of about 75-year-old had a dentofacial infection and the children ignorantly took her to a general medical practitioner who admitted her in his private hospital. The general practitioner did not refer the patient to a specialist instead continued giving the patient treatment. One week after the infection continued spreading resulting to cellulitis yet the doctor did not think wise to refer the patient. All these time the family was spending money with no pleasing result while the woman was languishing in agony. When it became obvious that the woman's health was deteriorating, the doctor without any clinical investigation called the patients family and told them to go and prepare for their mother's burials because she has cancer of the oral cavity and will die in a week's time. When she was taken away from the hospital and with much moaning every day, as result of severe pains she was passing through, someone suggested and they saw a dentist. The dentist then referred her to a maxillofacial specialist surgeon who made a clinical diagnosis of dentofacial infection with cellulitis and initiated adequate treatment immediately. The woman survived
DEFENCES IN MEDICAL NEGLIGENCE
There are a number of possible defences to a medical negligence action, they include but not limited to:
CONTRIBUTORY
In some cases, patients contribute to their own injuries, despite having also been harmed by a health care provider’s negligence. Once contributory negligence is proven, the appropriate apportionment needs to be considered to determine what is “just and equitable” in accordance with the legislation. This is subjective and based on findings of fact.
VOLUNTARY ASSUMPTION OF RISK
Volenti non fit injuria (no injury is done to one who voluntarily consents) is a comolete defense to an action in negligence. The defendant needs to prove not only that the plaintiff accepted the risk of injury but also accepted that if injury should happen, the plaintiff would accept the legal risk.
THE PEER ACCEPTANCE DEFENCE
In Rogers v. Whitaker it was held that it is ultimately for the Court to decide the appropriate standard of care in medical negligence cases, health care providers were concerned about an increase in their liability in negligence. Under the Bolam test, a health care provider would not be liable in negligence as long as he acted in accordance with a practice accepted at the time as proper practice by a responsible body of medical opinion.
There are exceptions to the widely accepted defence, depending on the precise wording in the legislation in the particular jurisdiction, they include where the action undertaken by the health care provider is irrational and unreasonable.
GOOD SAMARITANS
Good Samaritans are people who give assistance to others in an emergency. The concerns by health care providers that they are likely to be sued for such assistance in an emergency has been addressed by civil liability legislations in all jurisdiction. However this protection does not avail them if they are significantly impaired by alcohol or drugs and gross negligence.
APOLOGIES
Legislation encourages apologies to be made and thereby reduce the number of actions commenced, by providing that they are made with no admission of legal liability. Previously such admissions of regrets and apologies could be used as evidence of an admission of fault, whereas now they are not admissible.
RECOMMENDATIONS/ CONCLUSION
In order to eliminate or minimize this ugly situation, patients should not hesitate to sue negligent health care providers.
Hospitals should also employ only qualified health practitioners in order to improve healthcare delivery.
The law should provide stiffer punishment for gross negligence so as to deter quacks from toying with lives of the vulnerable who consult them for medical treatment. Such a step would promote a better and safer health care delivery system in Nigeria.
The health care stakeholders and policy makers should put in place legal and legislative measures to curb this menace while clinicians for the sake of obligation should ensure that they maintain the highest standard of patients care in their practice.
There is a need to emphasize early medical ethics training for health care professional at the undergraduate level as well as promoting and organizing workshops to constantly keep them well-informed.
The public from time-to-time should be encouraged to report any case of suspected negligence and medical errors in order to have documented evidence on the rate of occurrence. This in turn will help the health policy makers and medical regulatory body (NMDC) to understand the extent of the health problem and finding out the best method to reduce the rate of occurrence in the health care sector.
WRITTEN BY:
EWA-UDU ONYA (Esq)
ewauduonya@gmail.com
08101239098
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