One hot thursday afternoon in February 2003, my mum drove my siblings and I to St. Theresa’s Hospital somewhere in Enugu for the routine vaccination against cerebrospinal meningitis. When it got to my turn, the nurse failed to use the size of needle required for a 9-year old child; instead she used a bigger one which deposited the vaccine in the wrong endodermic layer. Your guess is right- I was paralyzed for about four days. Then, my questions: Did she commit any actionable wrong? Being an infant, what should my mother have done to protect my medical rights?

Definition of Negligence

Negligence under the law can be defined as;

“the failure to exercise the care toward others which a reasonable or prudent person would do in the same or similar circumstances.”

Elements of Actionable Negligence

We should however recall the elements of actionable negligence which are:

• Existence of duty of care, owed by the defendant to the plaintiff.
• Breach of the duty of care by the defendant; and
• Damage (injury) to the plaintiff resulting from the defendant’s breach.

The Plaintiff must prove these elements in other to successfully maintain an action in Negligence. It’s important to reiterate that medical negligence does not always result in injury to the patient.

A medical practitioner might deviate from the appropriate medical standard of care in treating a patient, but if the patient is not harmed and their health is not impacted, that negligence won’t lead to a medical malpractice case. Thus, if the medical practitioner’s negligence actually had no detrimental effect on the patient’s condition (damages), a medical malpractice claim will fall short.

Definition of Medical Negligence

Medical Negligence can be defined as improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist or other health care professional– (legal-dictionary.thefreedictionary.com).

It can also be defined as an act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care.

What Constitutes Medical Negligence?

The Rules of Professional Conduct for Medical and Dental Practitioners also known as the Code of Medical Ethics highlights some instances that would amount to Professional Negligence. Some of these are:

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

Are Medical Practitioners Always Liable?

Will it be surprising to state that in certain situations Medical Practitioners are exempted from liability? That is the case however. Below are two instances:

When a Patient’s Condition Deteriorates

A medical practitioner won’t be held liable in medical negligence simply because a patient’s condition became worse during the course of treatment as long as the doctor acted with reasonable care and skill in choosing and carrying out a course of treatment.

When a Patient’s Condition is Untreatable

A medical practitioner won’t be held liable in a situation where the patient’s condition is untreatable. This is reasonable as not every sickness or illness is treatable. As long as the doctor correctly diagnoses the problem and makes sound decision as to how to proceed with the patient’s care.

Who Can Sue and When Can You Sue?

Generally, only the person who has been a victim of the medical error can sue, however the situation is different if the patient has passed away or the patient is a child. If the patient has passed away, then the next of kin of the patient e.g. husband, wife, parents, children etc. can sue for compensation. If a child, it will be the parent or the legal guardian of the child.

Statute of Limitation and Compensation

You have a period of three (3) years to make a claim for compensation and this time period runs from the date when you first received the negligent treatment complained of or the date on which you first discovered that the treatment was negligent.

As each case is distinct, the amount of compensation awarded will varies. However, there are certain things the court will consider when deciding the amount of compensation a claimant would be entitled to. These includes factors such as a person’s age, severity of injury, employment status and associated losses caused as a result of the treatment etc.

Taking Action!

Patients have quite a number of actions to take against negligent medical practitioners. These actions include:

1. A report can be made at the Police Station who can prosecute where investigation reveals gross negligence or where death has resulted from such negligence.
2. A complaint can be filed with the Medical and Dental Council of Nigeria for appropriate redress. The Medical and Dental Practitioners Act provides for an Investigation Tribunal and where a prima facie case is established; a Disciplinary Tribunal. Thus, according to Section 16 (2) of Medical and Dental Practitioners Act, 1988, medical practitioners who are found guilty of gross negligence are liable to:

(i) Suspension or a period of six months; or
(ii) Having their names struck off the medical or dental register,

(iii) Admonition, as the case may be.

3. Patients can also seek legal redress through a Court of law by filing civil claims for tortuous liability and a breach of duty of care.

4. Apart from Litigation, another option available to patients is exploring other means of alternative dispute resolution through Arbitration or Mediation. Alternative Dispute Resolution greatly reduces cost and circumvents lengthy law suits.

Conclusion

The success of law suits is not always guaranteed due to challenges such as the unwillingness of Doctors to give expert reports in cases of Medical Negligence, however settlement can be a preferred and outcome based solution where criminal liability is not involved. Nonetheless, exploring these options does not foreclose the patient’s constitutionally guaranteed right to trial.

Contributor: Desmond C. Otikpa, Esq.

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