by 
Babafemi Odunsi, PhD (Ife), Dip. [IHL] (Pretoria), Barrister at Law, Professor & Dean, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria. MacArthur Fellow (Reproductive and Sexual Health Law), Faculty of Law, University of Toronto, Toronto, Canada. Formerly, Research Associate, AIDS and Human Rights Research Unit, (Centre for Human Rights and Centre for the Study of AIDS) Faculty of Law, University of Pretoria, South Africa, Research Fellow, Faculty of Law, University of the Free State, Bloemfontein, South Africa.
A paper presented at the 10th Public Lecture of the Ogun State Bar and Bench Forum held on Thursday, 17th of October, 2019, at the Ogun State Judiciary Complex, Abeokuta.
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Introduction
To adopt the Judeo-Christian cosmogony or the Biblical account of creation, as more popularly known, life or the human world began in the Garden of Eden.[1] Along that axis, it can be said that medical practice, literally, started from the beginning of the world in Eden; this was in the creation of Eve as wife and companion for Adam, the first human. The Bible[2] in Genesis chapter 2, verses 18, 21-23 gives account of Eve’s creation as follows:
18 – And the LORD God said, It is not good that the man should be alone; I will make him a help meet for him… 21 – And the LORD God caused a deep sleep to fall upon Adam, and he slept: and he took one of his ribs, and closed up the flesh instead thereof; 22 – And the rib, which the LORD GOD had taken from man, made he a woman, and brought her unto the man. 23 – And Adam said, This is now bone of my bones, and flesh of my flesh: she shall be called Woman, because she was taken out of Man.
In outlook, the process of Eve’s creation reflects the contemporary procedures of invasive medical surgery and biomedical human cloning. The causing of Adam to sound sleep would equate the conventional medical practice of anesthetizing patients to avert pain and discomforts in the performance of invasive surgery. The aspect of [opening] the side of Adam, extracting his rib, and thereafter closing up the flesh, reflects the practice and procedure of contemporary medical surgery itself. The transformation of Adam’s extracted bone into the human person of Eve, in perspective, has semblance of non-therapeutic or reproductive human cloning,[3] which has largely been an emotive issue, in terms of religion, medical ethics, and law.
Manifestly, as the process of creating Eve in the Garden of Eden was undertaken by an all-knowing and infallible God, the question of any medical error, negligence or any other form of mishap did not arise in the scenario. Subsequently, due to their conspiratorial rebellion with the Serpent, Adam and Eve lost occupancy and residency of Eden.[4] Thereafter, day-to-day activities of humans in the worldly realm, including medical practice, progressively became the affairs of humans. With the inherent imperfection of human, the issues of medical errors through negligence and other factors became components of human living, with attendant need to adopt legal and related devices to redress or deter such occurrences over the ages.
In respect of human medical practice, the Code of Hammurabi, promulgated by King Hammurabi of ancient Babylon,[5] offers an insight into the desperate efforts and measures which humans and societies have adopted in regulating medical practice and confronting medical wrongdoings that cause harms to patients over times. Inter alia, at a general level applicable to all citizens, doctors inclusive, the Code of Hammurabi provided:
If a man destroy the eye of another man, they shall destroy his eye. If one break a man’s bone, they shall break his bone. If one destroy the eye of a freeman or break the bone of a freeman he shall pay one gold mina. If one destroy the eye of a man’s slave or break a bone of a man’s slave he shall pay one-half his price.[6]
In the more specific context of medical practice, the Code of Hammurabi provided:
If a surgeon performs a major operation on an ‘awelum’ (nobleman), with a lancet and caused the death of this man, they shall cut off his [doctor/surgeon’s] hands[7]… If a physician operate on the slave of a freeman for a severe wound with a bronze lancet and cause his death, he shall restore a slave of equal value. If he open an abscess in his eye with a bronze lancet, and destroy his eye, he shall pay silver to the extent of one-half his price…[8]
Over time, less drastic and brutal measures for regulation of medical practice began to emerge for safeguarding the interest of patients. A leading light in this respect was the historical Hippocratic Oath. The Hippocratic Oath [9]as a global guide of medical practice, inter alia, prescribed generally that a doctor must act for the good of his patient. This prescription has also been integrated in contemporary medical ethical guidelines as adopted or formulated at different times.[10] Who determines what is good between the doctor and his patient, or the patient’s proxies, has been an issue of touchy discourse and subject of litigations over times.[11] At some point, the superintendence of medical practice by law in addition to self regulatory ethical prescriptions became trite, despite divergence of opinions on the issue.[12] With the intervention of Law in medical practice, diverse forms of legislations, regulations and policies evolved at different times in further regulation of medicine for the benefit of the society.
Medical negligence, as a ground or cause of action can touch on the performance of a diversity of healthcare providers such as nurses, pharmacists, anaesthetists, laboratory technologists, physiotherapists and so on.[13] By extension, it can also vicariously affect the employers of caregivers, as is usually the case. However, by way of delineation of scope, medical doctors would be adopted as focus of discussion in this paper. The principal reason for this is that it would be unwieldy to discuss medical negligence as applicable to all direct and indirect healthcare professionals in the scope of this paper. Furthermore, doctors, by and large, constitute the centre-point in the conventional healthcare setting, with other providers offering supporting services for doctors as the coordinating pilots.[14] Also, medical negligence jurisprudence, particularly in terms of case law arising from litigations over the years, has preponderantly involved doctors; thus without expressly serialising the diverse genres of healthcare professionals, the jurisprudence and legal principles applicable to doctors, mutatis mutandis, can be related to other healthcare professionals.
Regulation of Medical Practice in contemporary times: an Overview
It is trite that, in the present times in Nigeria and beyond, medical practice in its different ramifications is regulated by an interworking web of laws, rules and policies.[15] In addition to legal frameworks, there are institutional frameworks overseeing medical practice as supporting structures for the laws and rules.[16]
As a component of the contemporary legal and related regulation of medical practice, it is now required that doctors in Nigeria and other places should have university education and training with academic medical Degrees from their training institutions.[17] In addition to the university education and training or acquisition of medical Degrees, prospective doctors would further undergo post-university supervised clinical training or residency.[18] Once a doctor has passed all relevant examinations, and satisfies other prescribed procedures, the doctor can acquire a license to engage in medical practice without direct supervision, and deemed to have the required competence to practise medicine Nigeria.[19] In advancing beyond primary levels of medical qualification, doctors usually go for postgraduate qualifications at sub-regional and other levels, such as acquiring the Fellowship of West African College of Physicians to advance to the level of Consultants.
As a corollary to the academic and professional trainings of doctors at national levels, doctors who have earned their degrees and qualifications in other jurisdictions need to adhere to the pertinent regulations for practising, such as licensing or certification, in another jurisdiction before they can practise medicine therein.[20] This regimentation of re-assessing doctors from other jurisdictions or re-licensing them to practice in new jurisdictions has been of long historical origin. This can be illustrated by the 14th century story of Leonardo Fioravanti, a doctor with degree from the University of Bologna, a preeminent medical school at that time.[21]
Fioravanti was arrested and imprisoned by officers of Milan Public Health Board for practising medicine in the city, another jurisdiction different from Bologna, where he was primarily licensed to practise. The charge against him was that he was not medicating in the accepted way. For some time, doctors in Milan had held grudge and plotting against him since his arrival from Venice in 1572. They regarded him an outsider, an alien and an unwelcome Bolognese intruder in the jurisdictional scope of Milanese medical practice. He wrote a letter of protest challenging his arrest and incarceration to the health minister who was then responsible for the regulation of medical practice and related issues in Milan.
It is necessary to highlight that Fioravanti was not a medical charlatan, quack or scam. He was not even “a run-of-the-mill barber-surgeon. He had practiced medicine for years in Bologna, Rome, Sicily, Venice and Spain. He had a MD from the University of Bologna, had published several medical texts, had developed many medicines, and was a severe critic of much of conventional medical practice. Notwithstanding, “the Milan physicians were not welcoming and considered him a foreign doctor.”[22] Ultimately, it took the intervention of the health minister, Boldoni, and Milan court to set Fioravanti free.
Legal Actions on Medical Negligence
Generally, as in other areas of law, it is a patient who is aggrieved by medical negligence that can initiate legal processes for redress or sanctioning of offending doctor. However, where the patient is a minor, the proxy or surrogate of the child, such as parent or legal guardian, can initiate complaint processes on the minor’s behalf as next friend[23]; same would operate where the patient lacks competence on the basis of any mental incapacitations. Where the negligent act results in death, any competent survivor or successor of the deceased can initiate action in respect of the ‘wrongful death’ of the victim.[24] The processes initiated can be against the doctor individually, or by vicariously joining the master or employer of the doctor in appropriate situations.[25]
Whether directly by an aggrieved patient, or any of possible proxies, legal processes that can be initiated against a doctor can either be civil or criminal in nature. Criminal action would flow where the negligent act complained of amounts to a gross or criminal negligence as operative under pertinent laws.[26] In essence, medical negligence act can generate both civil and criminal actions. In initiating civil and criminal actions for medical negligence, an aggrieved patient or proxy may adopt any of the following options or steps directly or through a legal practitioner:
- Writing a letter of complaint and demand for redress to the doctor or his employer on the incident of medical negligence.
Whether or not (1.) above is first adopted,
- A formal complaint can be filed with the Medical and Dental Council of Nigeria for appropriate redress.[27]
- Making a report at a Police Station with an ultimate desire of criminal prosecution where the negligent act in question is perceived to be criminal. This is more likely to occur in situations of death or grievous bodily injuries to the patient through the doctor’s act.
- Instituting civil action for redress in a court of appropriate jurisdiction on the ground of the act or conduct constitution medical negligence. Such civil actions can proceed from the court of primary jurisdiction to the final court of appeal, as in civil actions on other subjects other than medical negligence.[28]
In the cases of 2 and 3 above, the trial is between the Council and the Prosecutor[29] respectively with the affected doctor as defendant. The aggrieved patient essentially stands as witness and complainant on whose behalf the Council or government pursue sanctions. In the case of 4, the battle is directly between the aggrieved patient and the doctor in the conventional Plaintiff/Claimant versus Defendant vis-a-vis the evidential and procedural rules applicable in the conventional court settings. In any situation of contest, the culpability of the doctor for the alleged negligent act must be established by the prosecutors or claimants; otherwise there would be no basis for sanctions or redress. Perhaps, it bears adding too, that all the necessary principles for fair-hearing and due process must be adhered to; if not a doctor sanctioned at a lower forum may walk free at an appellate forum.[30]
Medical Negligence: Option of a Non-adversarial Approach
The options listed above, particularly 2-4, fall within the adversarial system framework of litigation in the Nigerian legal system.
The National Health Insurance Scheme Act,[31] in outlook, seems to offer an avenue for a non-adversarial option to resolve medical negligence disputes. In one respect, Health Management Organisations (HMOs) are required to provide complaint boxes at health provider facilities for the reporting of grievances about services offered at the health care facilities.[32] In another vein, the Scheme further creates arbitration boards for the resolution of medical negligence disputes; the arbitration boards and alternative dispute resolution (ADR) outlets offer options for patients to seek relief outside the conventional adversarial structure, such as court actions.[32] An advantage embedded in the ADR approaches is that doctors and patients may be more comfortable negotiating the compensation to be paid to victims of medical negligence.[33]
Without prejudice to the option of the non-adversarial approach, the preponderant focus of this paper is on the adversarial civil litigations as means of seeking redress for medical negligence. However, before delving into the aspect of civil litigations, it is considered pertinent to discuss briefly the criminal law aspect of medical negligence.
Criminal Law perspective of Medical Negligence
Generally, except in cases of willful acts of homicide or assisted suicide services rendered to a patient,[34] it is unlikely that a doctor would be charged for murder or culpable homicide where a medical negligence results in death of the patient. This can be attributed to the absence of mens rea for culpable homicide in the circumstances.[35] Moreover, section 24 of the Criminal Code exculpates an individual from criminal guilt where an alleged crime is due to accident.
However, a doctor can face criminal sanction for manslaughter or culpable homicide not punishable with death if his conduct is found to translate to gross or criminal negligence. Along this axis, section 303 of the Criminal Code provides:
It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, 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 care in doing such act; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.[36]
Where a doctor faces criminal trial for manslaughter due to gross medical negligence the trial follows all pertinent processes, procedures and rules of criminal trials. The doctor-defendant, in addition to all possible basic defences, such as prosecutor’s failure to establish guilt beyond reasonable doubt, can invoke sections 297 and 313 of the Criminal Code.
Civil Litigation on Medical Negligence –Establishment of Claims
Generally, action for medical negligence falls under the Law of Tort. In some cases, however, an action for medical negligence may arise under Law of Contract. In a matter arising under contract, the essence is that doctor has not acted reasonably in displaying competent skill or achieving desired result, as agreed with the patient.[37] Generally, to sustain a medical negligence case on contract the plaintiff must show that the doctor has made an additional promise or warranty, beyond the inherent agreement or expectation in doctor-patient relationship, that doctors would exercise reasonable care and skill.[38]
In medical negligence actions under tort or contract, the patient has a legal duty, or burden of proof, to establish his allegation of negligence and entitlement to redress against the doctor. This burden of proof is to be discharged on the balance of probabilities or preponderance of evidence.[39] Put differently, it is up to the plaintiff to prove the allegations of negligence and his entitlement to redress.
The mode of proving or establishing a medical negligence case is set in some definite legal framework; this, essentially, entails the contending parties calling witnesses to adduce relevant evidence in respect of their positions. The need for medical expert witness is particularly crucial in medical negligence cases. Absence of required expert evidence can be fatal to the case of any of the parties that fails to invoke such evidence where necessary. A scholar puts this situation thus:
It is a sad commentary on the lack of sophistication of the Plaintiffs’ Bar in Nigeria and other common law jurisdictions that medical negligence claims are frequently launched and advanced at trial without expert medical evidence. The plaintiff comes to court and gives his or her account of what occurred but fails to back up allegations of negligence with coherent evidence from a medical expert. In such circumstances, it is no surprise that courts will heed the exculpatory evidence inevitably provided by experts on behalf of the defendant and dismiss the claim.[40]
Further, the writer reflects:
Why should it be that claims are advanced without medical expert witnesses? Incompetence on the part of the plaintiff’s counsel cannot be ruled out. One should not discount resource challenges, however: medical experts can be very expensive and beyond the means of impoverished plaintiffs. Moreover, it may be hard to find a doctor willing to give evidence criticising the conduct of another doctor.[41]
Even where the plaintiff/claimant presents a medical witness to give expert evidence, the reality is that the defendant can produce a counter expert witness to confront the expert evidence of the patient-plaintiff. The foregoing connotes that in presentation of witnesses or adducing evidence, a party aiming to prevail needs to ensure that he presents expert or non-expert evidence that would enjoy high credibility or higher probative value with the court. Thus, where the contending parties present opposing witnesses or evidence on an issue, the position of the more impressive witness will prevail. Thus, in the case of Unilorin Teaching Hospital v Abegunde,[21]the Court of Appeal (Ilorin Division) found more impressive and preferable the expert evidence of the defendant’s witness, a Consultant Surgeon, than by the evidence offered by the plaintiff’s witness, a resident doctor. A learned Justice of the court, Ogbuinya JCA noted,“[b]eing an expert witness, the law gives me the licence to crown his[the Consultant Surgeon’s] evidence with the toga of high probative value. On this score, the evidence of [the Consultant Surgeon’s] make mincemeat of those of[plaintiff’s witness] in all aspects they were on collision course.”[42]
Apart from adducing direct expert or non-expert evidence, a plaintiff-patient can seek to prove a case of medical negligence by the indirect or circumstantial evidence mode of res ipsa loquitor. From a perspective of legal history, the injection of res ipsa loquitor into judicial parlance can be traced to the case of Byrne v Boadle.[43]In the case, a barrel fell from the defendant’s premises injuring the plaintiff on the road below.What exactly precipitated the accident was not known to the plaintiff. The Defendant’s counsel had sought a dismissal of the plaintiff’s case on the ground that there was no evidence of negligence. Addressing the contention of the Defendant’s Counsel, Pollock CB responded: “there are certain cases of which it may be said res ipsa loquitur and this seems one of them …”[44]
An expatiation of the characteristics and principles of res ipsa loquitor was proffered in the later case of Scott v London & St. Katherine Docks Co.[45] The plaintiff, a customs officer, in the course of performing his duty passed in front of the defendant’s warehouse where six bags of sugar fell on him. Pronouncing on the basis for inferring negligence for the purposes of liability, Erle CJ stated: There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary circumstances does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.[1]
In the case of Plateau State Health Services Management Board & Anor v Philip Fitoka Goshwe,[46] referring to the case of Royal Ade Nigeria Ltd. & Anor. v National Oil and Chemical Marketing Company Plc.,[47] the Nigerian Supreme Court set out the circumstances under which res ipsa loquitur would operate as follows:
i. Proof of the happening of an unexplained occurrence.
ii. The occurrence must be one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the Plaintiff.
iii. The circumstances must point to the negligence in question being that of the Defendant rather than that of any other person.[48]
In a later part of reviewing the Philip Fitoka Goshwe case, after referring to some other pertinent cases,the court, per Alagao JSC, added, “[t]he presumption of negligence that Res ipsa loquitur impsoses is rebuttable. It is thus for the defendant to show that he was not negligent.”[49]
In summation, res ipsa loquitur can be described as an instance of circumstantial evidence that can be pleaded and raised, for the purpose of making deduction of negligence on the part of the defendant. In essence, it operates to ameliorate the burden of proof of negligence on the claimant by prima facie shifting the burden of explaining absence of negligence onto the defendant. The import is that the defendant will lose the case if he is unable to discharge the imputation of negligence by adducing cogent evidence to explain the absence of negligence on his part or his agents for the occurrence and related injury to the claimant. Inversely, where the claimant solely builds his case on res ipsa loquitor, he will lose the case if the defendant is able to explain or justify lack of negligence on his part or agent.
There is a plethora of cases on the operation of res ipsa loquitor in the more restricted context of medical negligence in Nigeria and other jurisdictions.[50] The following are illustrative. In the case of Abi v Central Bank of Nigeria & Ors.[51], the plaintiff/claimant undertook treatment at the second defendant hospital. The plaintiff/claimant sued thereafter contending that he was negligently diagnosed with as suffering from cerebrospinal meningitis (CSM) and was treated with various drugs, including gentamycin which made him permanently deaf due to complication of the drugs. Res ipsa loquitur was pleaded. Ultimately, it was held by the Court of Appeal that the plaintiff/claimant had failed to prove negligence.[52] With reference to the aspect of res ipsa loquitur as basis of proof of negligence in the case, it was held,[u]nfortunately … there is no direct credible evidence on which the court can infer what caused the loss of hearing. The plea of res ipsa loquitur would have been available to the plaintiff if he adduced evidence to show that the injury would not have happened without likelihood of lack of care by the defendant. It is after the plaintiff has established evidence from which negligence is inferred that the burden shifts to the defendants to rebut any presumption of negligence.[53]
In a later Supreme Court case of Plateau State Health Services Management Board & Anor v Philip Fitoka Goshwe,[54]the plaintiff/respondent attended the defendant/appellant’s hospital for treatment of pneumonia. Following administration of drugs on him he became completely deaf. He instituted an action for medical negligence, pleading res ipsa loquitor. The Supreme Court, per Alagao JSC held:
“What conclusion can one reasonably draw from a case in which a man who is hale and hearty but for a complaint that he has pneumonia and so proceeds to a hospital to have that ailment treated but comes out of the said hospital with a completely different and worse ailment after taking some drugs administered by the hospital’s personnel? The scenario is worse when no attempt is made by the hospital authorities to explain its own side of the story after promising to do so…[T]he evidence led by the plaintiff and lack of same by the defendants having chickened out of an opportunity to state their own position … and the sheer force of the other exhibits … having been rejected, the defendants were properly found liable in negligence and res ipsa loquitur applied.”[55]
Along the line of practice under the English and Nigerian jurisdictions, some other Common Law jurisdictions too have adopted res ipsa loquitur as alternative means to direct expert and not-expert evidence in establishing claims of medical negligence in litigations.[56]
Defences in Medical Negligence actions
In medical negligence suits, the defendant doctor can raise some legal defences to the claims. Generally, the defendant, as in other legal actions, can resist the claims of medical negligence on the generic ground that the claimant has not proved his case on the preponderance of evidence. Thus, the defendant can argue, inter alia, that the claimant has not convincingly established that the defendant owes the defendant a duty of care or has breached a duty of care, or that a breach in question is the cause of a resultant damage as claimed by the claimant. Where a defendant successfully shows that there has not been negligence, as legally structured, the suit will be defeated.[57] This head of defence can also apply in vicarious litigations involving the hospital employer of a doctor, as liability of the vicarious party is connected with the primary liability of the doctor-defendant;[58] in addition, a vicarious party can also excuse liability on the ground that the primary defendant is not its servant but an independent operative. The issue of locus standi, especially in case of proxy litigations, or ‘no cause of action’ can also be raised as in the cases of other court actions.
Apart from the general defence of no proof, there are also some specific defences that a defendant may plead and raise.[59] These defences can be absolute in entirely defeating the claim or may be partial as in reducing damages. Some of these specific defences are considered below.
a. That the claim is out of time or that the action is statute barred
Generally, there are specified time frames or limits in which civil actions can be instituted in court. If a person institutes an action of permitted time, the action and drive for redress will fail. Limitation of actions is generally governed by statutes.[60] That a suit is statute barred is an absolute defence that would kill the claims. With medical negligence actions falling under Tort Law or Contract Law, it is crucial that a litigant takes cognizance of the applicable limitation laws as operative in pertinent jurisdictions. In that respect, the pertinent laws in each jurisdiction must be researched into in reaching decision to or not to institute legal action on medical negligence; if not, a litigant may embark on a litigation project that will end in futility.
b. Contributory Negligence and failure to mitigate loss
Where a claimant fails to take reasonable care of himself, or negligence is found on his part in some ways, and this contributes to the harm or loss that he suffers, then a defendant may claim that the plaintiff’s own contributory negligence should be taken into consideration. Contributory negligence is a mitigating ‘defence’ against awards or compensation that could ordinarily have been awarded against the defendant and in favour of the claimant in a suit.[61] The implication is that the compensation payable to the claimant in such circumstances would be reduced to such extent as is just and equitable. It is for the court to determine what is ‘just and equitable’ by considering the circumstances and facts of the case vis-a-vis the claimant’s portion in the responsibility for the overall damage suffered. For example, if a doctor prescribes a line of treatment or medications for the patient-claimant and he fails to faithfully keep to same, or engages in some harmful acts resulting in harm or damage, the patient can be held to have contributed to the damage even where the doctor-defendant has been negligent in some basic respects.[62]
In a related vein, the aspect of a duty to mitigate loss or damage can be considered. For long it has a trite principle that an injured party has a duty to mitigate his loss.[63] Thus where a patient suffers, for a wound due to a doctor’s negligence, the patient reasonably cannot be expected to leave the wound untreated with the mindset that the doctor ‘caused it’ and is accountable. If the injured patient, for example, leaves the wound untreated, festering and becoming gangrenous leading to amputation the patient can be held accountable for dereliction of the duty to mitigate and his portion of dereliction can be held against him in the assessment of the compensation available for the overall damage.
c. Voluntary Assumption of Risk
Voluntary assumption of risk, Volenti non fit injuria is a defence connoting that no legal wrong is done to one who has consented to the wrong in question. It is an absolute defence connoting that if a defendant can establish voluntary assumption of risk on the part of the claimant, the claimant’s claim would fail. Volenti non fit injuria can be connected with consent as a defence to intentional torts. However, there appears to be a point of divergence; voluntary assumption of risk involves the claimant consenting to the risk of an invasion of his interest, ‘consent’, translates to the actual invasion of his interest. Albeit, both entails the claimant’s approval which can be express or implied.
In establishing a defence of volenti, the defendant needs to show that the claimant actually knows of the danger as compared with what the claimant ought to know, and that the claimant fully appreciates the scope of risk and he voluntarily, consciously, expressly or impliedly, accepts the risk.It bears stating that in the context of medical negligence, the defence of volenti can be very difficult to sustain. For example, essentially, the mere fact that the claimant agrees to undertake a risk, such as surgery, does not mean that he accepts that the activity consented to would be undertaken negligently by his doctor. However, volenti may apply where a doctor proposes and the patient approves of a doctor ‘taking a chance’ in a risky line or approach of treatment, perhaps generally medically untested or debatable by peers or regulatory bodies,[64] that holds some hope of curing or improving the patient-claimant’s desperate health condition.
One aspect where volenti can also operate in conventional medical situation isthe aspect of Respectable Minority Principle[66] Sometimes a doctor may decide to pursue a new or more radical form of treatment in order to effectively treat a patient. While the decision may place the doctor outside of the medical mainstream, he or she could have a valid defence to a claim if a respectable minority of medical professionals supports the line of treatment. It is important that the doctor first informs the patient about the risks involved.
Inferably, in such a situation, it may not be said that a ‘reasonable doctor’ would and should not have undertaken such approach if the patient comes to harm. Whatever the case is, the onus lies on the doctor-defendant to establish the essential elements of the defence of volenti if he opts to plead or raise it.
a. Peer Professional and Accepted Practice or approach
Generally, pertinent jurisprudence permits a doctor to plead and argue in defence that, notwithstanding that injuries occur to the patient-claimant, he (doctor) has met the standard of care expected of a medical professional in is jurisdiction of practice or locality. In essence, this discussion dovetails into the scope of the Bolam and Bolitho tests. The essence of the Bolam test, established in the English case of Bolam v Friern Hospital Management Committee[67] is that a doctor would not be held accountable for negligence if he acts in accordance with a practice approved by a responsible body of medical professionals skilled in the practice.
The Bolam test has faced some criticisms. Among others, an author has referred to the test as strong judicial deference to the customary practices of medical and other professionals… which amounted to close to complete surrender to the medical [profession] to determine the standard by which it was to be judged. There are some good reasons for such deference: most professionals, after all, are highly intelligent people, engaging in a vocation with traditionally strong ethical standards, policed by a system of professional monitoring and sanctions. Nevertheless, while some deference was appropriate, a virtually complete surrender to customary professional practices clearly went too far.”[68]
The Bolitho test or, more appropriately put, a ‘qualification to Bolam test’, emerged in the case of Bolitho v City and Hackney Health Authority.[68]Put simply, the Bolitho test connotes that a body of opinion held or a medical approach approved by a responsible body of medical professionals skilled in the practice can still be held for negligence if such opinion or approach fails to withstand logical analysis in matters of medical judgment, involving diagnosis and treatment.[69] It has been observed that Bolitho was not meant to be revolutionary, as in neutralising Bolam; as it was noted in the case, per Lord Browne-Wilkinson, it would seldom be right for a judge to conclude that views genuinely held by a competent medical expert were unreasonable.[70] Indeed, the continuing relevance of Bolam was alluded to in the 2012 Nigerian case of Abi v Central Bank of Nigeria.[71] In Abi, it was held inter alia:
The courts have long recognized that there is no negligence if a doctor exercises the ordinary skill of an ordinary competent man professing to have that special skill. The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill is the direction to the jury given by McNair J in Bolam v Friern Hospital Management Committee.[72]
Without prejudice to the interface between Bolam and Bolitho,the central issue is that a doctor can raise as defence the fact that the medical approach adopted in treatment is in consonance with accepted practice.
Remedies for Medical Negligence
The essence of medical negligence suit is to obtain pecuniary awards or damages for the damage, loss or injury suffered. In determination of the appropriate awards, the nature of injury, for example, whether personal injury or death becomes pertinent. Damages can be nominal, general, special, punitive or exemplary.[73]
A. Damages for Personal Injuries
Damages in a medical negligence suit for personal injuries, [74] conventionally, would be awarded as a lump sum. The claimant needs to thus ensure that his claims adequately cover his losses, presently and in reasonably predictable future post-trial situations. Damages are not meant for the claimant to unjustly enrich himself at the expense of the defendant; hence, damages would be awarded in the framework of facts and evidence presented to the satisfaction of the court. Perhaps, it bears adding that such awards must relate to or be connected with the negligent act of the defendant and naturally resultant injury constituting the basis of claims.
General damages for personal injuries are pecuniary awards for losses that are naturally and reasonably resulting from the defendant’s wrongful act of medical negligence. These can include pains and sufferings, loss of the amenities of life, inconvenience and disability, and disfigurements.[75] It is trite principle that the award of general damages lies at the discretion of the court to be judiciously and judicially applied.
Special damages are compensation for expenses or losses that are natural consequences of the injury suffered by the claimant due to the defendant’s tortious wrongful act.[76] In the case of a medical negligence suit, these can include medical and related expenses for treatment or care following injury from the defendant’s negligent act, loss of earnings, and other expenses incurred for special needs or requirements by the claimant arising from injury suffered by the claimant due to injury caused by the defendant’s negligence. A claimant seeking special damages for medical negligence carries the burden to specifically plead and strictly prove same before the court.[77]
Punitive or Exemplary Damages are legal damages that a court may grant a plaintiff to punish and make an example of the defendant.[78] Punitive damages are generally awarded in special and restricted circumstances, such as where the wrongful act is sufficiently condemnable to merit punishment;[79] Thus in the case of medical negligence this may arise where the defendant-doctor’s act is grossly negligent, oppressive, nonchalant or arbitrary. In such cases, the plaintiff may thus recover punitive damages in addition to the general or special damages for the sake of making an example of the defendant through further sanctioning.[80] The scope of exemplary damages as set out in the English case of Rookes v Barnard[81] appears restricted than the scope under Nigerian jurisdiction, and it has been held that Rookes v Barnard, though persuasive, is not binding on Nigerian courts.[82] Along this axis, ostensibly, in appropriate cases, where properly claimed and proved, claimant may be awarded exemplary damages for medical negligence in Nigeria.
B. Damages for Death through Medical Negligence
Where an act of medical negligence results in death, survivors that may be dependants, executors or administrators of the deceased can institute a suit for claims which the deceased could have had if alive, or claims for losses they have personally suffered as a result of the deceased’s death.[83] Previously, under Common Law rules, action could not be maintained for the tortious death of a person, as right for action was extinguished with the death of the victim and the death of a person could not be complained of as an injury.[84]
However, it is now trite that actions for wrongful death can be instituted in Nigeria by virtue of Fatal Accident, Civil Liability (Miscellaneous Provisions) and Torts legislations.[85] For example, section 3(1) of the Fatal Accidents Law of Lagos State, 1961 provides:
3. (1) Where after the coming into operation of this law. The death of a person is caused by’ wrongful act, neglect or default, and the wrongful act, neglect or default is such as would, if death had not ensued have entitled the person injured to maintain an action and recover damages in respect hereof, the person who would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured.
(2) Every action under this section shall be for the benefit of the members of the immediate familv of the deceased person and shall –
(a) if the deceased person was not subject to a system of customary law, be brought by and in the name of the executor or administrator of the deceased person; or
(b) if the deceased person was immediately before his death subject to a system of customary law relating to estate, be brought at the option of his immediate family, by and in the name of such person as the court is satisfied is under the customary law, entitled or empowered to represent the deceased person or his estate.
(3) If there is no executor or administrator, or where there is in executor or administrator but no action is brought by the executor or administrator within six months after the death of the deceased person, then action may be brought by and in the names of all or any of the persons for whose benefit the action would have been if it had been brought by the executor or administrator.’ and every action brought shall be for the benefit of the same persons and be subject to the same regulations and procedure as nearly as may be if it had been brought by an executor or administrator.
The legislations have been applied in some cases.[86] In instituting medical negligence actions based on ‘wrongful death’ some points are to be noted. One is that, to recover, the claimants must establish the claim of negligence against the defendant just as the deceased would have had to do if alive and bringing the action personally. The claimants too must establish legal relationship with the deceased as to confer locus standi on them. Any claimant unable to establish the required legal relationship in such situation would not be able to recover.[87] In respect of claims based on the death of a minor, there is the hurdle in establishing dependency or a reasonable expectation of future pecuniary benefits; where these elements are not established the claims for the death of minor would fail.[88]
VII. Medical Negligence as an “Unexplored Terrain”: an overview of Medical Negligence litigations in Nigeria
From a historical perspective, the earliest reported case of medical malpractice was the English case of Stratton v Swanlond which was decided in 1374.105 In the case, a surgeon tried to repair a woman’s mangled hand. The woman claimed the surgeon said he could cure her, but after the procedure she was still deformed. The case was dismissed on a procedural error, but the judge set ground rules for contemporary medical negligence cases, stating that physicians could be held liable when they are negligent, but if properly treated, they would not be liable just because it did not cure the patient.
Some accounts indicate that the occurrences of medical negligence are significantly high in Nigeria.[88] “…[W]hile there is no incontrovertible data on the actual number of medical negligence cases in Nigerian hospitals, patients and medical practitioners alike acknowledge that number to be very high.”[89]
With its connection to English Law, Nigeria, through the courts, has developed a quite noticeable jurisprudence on medical negligence over the years.[90] However, as pertinent literature indicates, the volume of medical negligence litigations in Nigeria, despite reported large scale of occurrences, is relatively low when compared with countries of the West such as United States of America and Britain.[91] This scenario can be attributed to some factors. Perhaps, one is the widespread socio-cultural attitude of preferring reconciliation to pursuits of redress through the adversarial court mechanisms with the attendant ‘headaches’ and the ultimate by-product of ‘enmity’.[92]
In the aspect of medical litigations, the situation, perhaps, can further be attributed to widespread religious attitudes of ascribing medical and other tragedies to divine predetermination or fate, over which humans have no control; and ones which no court actions can undo what have been done. In a related vein, the religious attitude of adopting forgiving spirits, in some cases, can operate in influencing some people in not seeking legal redress in court in the event of medical misfortune attributable to the act or omission of a doctor.
Large scale poverty with the attendant inability to afford legal expenses can also be cited as a factor that might have made medical litigation an unattractive choice for many Nigerians.[93] As T. Akinola Aguda, a renowned scholar and jurist, lamented over the Nigerian justice system,
[i]t is a sad reflection of our administration of justice that to a very large extent the quality of justice one is able to achieve from judicial proceedings depends to a large extent on how much money he is able to spend on the proceedings…but how can a poor citizen existing at bare starvation level hope to have equal opportunity of success in any litigation between him and the State which has in its pay roll a large number of seasoned lawyers paid from public funds. The position is not much different if a poor man is engaged in litigation against a millionaire able to engage the best brains the legal profession is capable of providing.[94]
Therefore, even where a person, directly or indirectly aggrieved by a medical incident, is desirous of pursuing a claim through the court, financial incapacitation may impede him or her from accessing the court. Beyond financial limitations, there is also the issue of relative doubt of confidence in the Nigerian justice system as a discouraging factor.[95] In light of the foregoing factors, it is not uncommon for aggrieved Nigerians, for different reasons, to ‘leave things to God’ rather than pursue legal redress in court.
Admittedly, the factors noted above are not restricted to discouraging only medical litigations in Nigeria; the factors do apply to litigations in other ramifications.[96] However, for some reasons, the factors can have more pronounced effect in the aspect of medical litigation. It is trite that ill-health, especially in serious cases, tend to have serious psychological and financial impacts on the sick person, relatives and others affected by the illness of the sick person. Any negative outcome in the medical treatment process may add further burdens, which may make court action another level of undesired trauma, or an issue of less worry, for people trying to come to grasp and cope with the misfortune, or seeking to get over the matter and ‘move on’.
The following account is pertinent in the context.
In December of 2012, Ruth went into labour with her first child at a private hospital in the Iyana-Iba area of Lagos. She was in labour for twenty-two hours. She says that when her daughter was eventually born, the baby was in distress but did not cry. Ruth alerted the doctor. “I asked the doctor to see my baby because I did not hear her cry. He replied jokingly: “take cane and flog her now,” she recalls.
…“I started complaining to them when, on the third day, she was not making any sounds. The hospital staff said she was fine.” But on the fourth day, Ruth’s daughter had a seizure. “The doctor could not tell what was wrong. He referred us to a government hospital.” Ruth visited the newly commissioned Mother and Child Hospital in Lagos. There, her daughter was rushed into emergency and given an anti-seizure injection. A brain scan at Yaba Psychiatry showed that Ruth’s daughter suffered from primary generalised epilepsy. She was placed on daily medication to lessen the frequency of the seizures. After consulting with several medical experts, Ruth learned of two likely causes for her child’s condition. “First, by not crying immediately after birth, a part of her brain did not take in oxygen. Second, she also had hypoglycemia – low blood sugar. Her blood sugar level was 15. It is not supposed to be lower than 40 for a newborn.” With this discovery, Ruth became angry at the hospital, and at the doctor for being careless. Ruth pays the price of that carelessness daily. The drugs her daughter needs cost ₦2, 050 per bottle, and she buys a new bottle every 10 days. During her daughter’s most recent seizure, Ruth turned to check on her in the backseat on their way to the hospital and drove into an electricity pole. Fixing the pole cost her ₦90, 000; repairing the car, ₦180, 000. But even these staggering financial costs do not begin to compare with the emotional burden of raising a chronically ill child. “[The seizures] can happen anytime, anywhere, so you have to be on the lookout,” she says, adding that people have advised her to visit prayer mountains for solutions. Ruth says that she is considering pressing charges against the hospital, but worries that it will be too hectic. Raising a child who may suffer a seizure at any time is difficult enough for the mother of two, and she worries that legal proceedings might be too much to bear. [97]
Comparatively, in litigations over commercial matters, land, political, official or royal positions, litigants have expectations of financial gains or some other benefits which can be stimulating incentives to go to court. Damages are the conventional remedies awarded in medical litigations. While damages offer hope of financial relief, this may not be strong incentive to embark on medical litigation for some, as damages may be seen as having limited restorative value. To illustrate, it can be said “what impact would damages can have in case where a patient has died as a result of a medical incident?”; Considering the financial and other rigours that court action can entail, the affected person may not consider litigation worthwhile and may rather philosophically conclude that “no amount of money can bring back the dead.”
Doubts over chances of success can also be a factor inhibiting from embarking on litigation for medical negligence in Nigeria. As a source portrays the scenario,
[a]nother thing that also happens is that with the ticking of the clock, self-defeating thoughts often creep into many Nigerian hearts,… “They will ask: ‘Will I even succeed? How long will it take? If I go there now, maybe the people will get the judge compromised or they will hire a lawyer better than mine. Or I will go there and seek one million naira after spending 500, 000 naira, and the judge may award 30, 000 naira.’”[98]
In some cases, where there has been long standing doctor-patient relationship between the parties, and the doctor has generally been of good report before the incident, the aggrieved may not consider litigation appropriate in such situation with the sentimentality of avoiding “biting the hand that has fed” or simply attributing the occurrence to a philosophy of quid sera sera. More so, where the doctor in question has been sincerely remorseful, placatory or apologetic.
In a society where there is large scale illiteracy, lack of understanding or awareness of the rights of legal action over unwholesome medical incidents, may also have played a role in preventing some medical negligence cases getting to court. This may particularly play out among rural populations for whom having access to doctors appear to be huge privileges. Some may even perceive doctors as ‘angels’ who, possibly, can do no wrong and thus unassailable. As a legal practitioner, Laolu Osanyin captures it,
[h]istorically, the Nigerian doctor was equated to the status of a healer or a priest who could do no wrong …Those days, if anything untoward occurred in the treatment of a patient, the doctor was usually the last person to be held accountable. The Nigerian patient or their families will locate someone in the village who they can hold responsible for the problem; if they find no one to drop the problem at their doorstep, they say it is destiny.[99]
Notwithstanding the foregoing, it would be precarious for any doctor in Nigeria to assume any feeling of insulation from litigation. As the available Nigerian jurisprudence on medical litigation indicates, there are people who would not shy away from suing doctors for perceived wrongdoing whatever the situation. Moreover, the increasing presence and intervention of human rights lawyers, human rights and related activists, Civil Society Groups and other entities willing to fight on behalf of the ‘helpless’ tend to increase the possibility of aggrieved patients being led into court battle against a doctor, though such persons might not have done so ordinarily. In this respect, one may readily recall, though not exactly in a doctor-patient or medical negligence scenario, the dramatic case of Georgina Ahamefule v Imperial Medical Centre and Dr Alex Molokwu[100]which was spearheaded by a Civil Society Group. Also the ubiquitous internet and Nigerian social media, with the propensity for sensationalism, raise the probability of instigating or gathering army of ‘defenders of the helpless’ that may propel legal action which might not have ordinarily arisen.[101] To sum up, the point is that, unlike in the past, there are now compelling factors that may propel a doctor’s alleged wrongdoing to court which may even be beyond the control of the aggrieved patient of proxies. The following account tends to illustrate the emerging scenario:
Despite the many challenges involved in pursuing justice in cases of medical negligence, there has actually been an increase in the number of Nigerians reporting medical negligence. In the 36-year span between 1962 and 1998, there were 94 cases of medical negligence reported to the Medical and Dental Council of Nigeria, compared with over 100 cases in the six-year span between 1999 and 2005. Laolu Osanyin believes this can be attributed to globalization, and the Internet in particular. “People who have families that have done certain procedures abroad and hear of people dying of said procedures here have started questioning doctors.”[102]
Medical Litigations: Doctors’ Dilemmas as Matters arising
To recap, the contemporary outlook of doctor-patient relationship is such that every doctor runs the risk of litigation from an aggrieved patient or proxy in the course of the doctor’s professional duties. On the whole, there is a seeming paradox in the doctor’s ethical burden to
do good or act in the best interest of his patient,[103] or overall public interest in some situations. As the following narratives show, it appears that a doctor is prone to litigation in, literally, all ramifications of doing good for his patient.
On humanitarian grounds, a doctor in doing good for his patient may be prompted to paternalistically adopt treatment measures professionally considered beneficial to the patient, though not approved by the patient. Despite achieving positive or medically advantageous outcomes for patients on such Good Samaritan platforms, doctors have faced litigations by patients for such ‘good acts’. [104] Perhaps, it can be argued that a doctor who paternalistically plays Good Samaritan and gets rewarded with a biting litigation ‘asked for it’ and deserves what he gets for being an interloper stepping out of bounds in the doctor-patient algorithm. Along this axis, by way of exhortation, it may be pertinent to re-echo that doctors would “do well to remember what Lord Devlin said, albeit in a rather different context: “The Good Samaritan is a character unesteemed in English Law””[105] And, by extension, Nigerian medical law.
Perhaps, a more intriguing dimension in the paradox is that a doctor is still vulnerable to litigation where he acts for the ‘good’ of the patient by respecting the wishes of the patient by refraining from treatment measures refused or disapproved by the patient, and there follows a negative medical outcome. The Nigerian case of Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo[106] offers an intriguing illustration. In brief, the facts in Okonwo was that a referred anemic patient insistently refused blood transfusion on religious ground of being a Jehovah’s Witness whose tenet does not approve of blood ingestion. In the doctor’s professional assessment, medical blood transfusion was the most promising medical option in the circumstances of the patient. In respecting the religious right and wishes of the patient, the doctor refrained from blood transfusion; eventually the patient died. The woman’s family, excluding the husband, petitioned the Medical and Dental Practitioners Council which led to a sanction of six months suspension of the doctor. The doctor challenged the decision of the tribunal in a suit that ultimately got to the Supreme Court, Nigeria’s highest court, where the doctor was eventually exculpated.
Furthermore, that a doctor, in the act of doing good or acting in the best interest of his patient, follows a prescribed or acceptable procedures and due process in good faith in treating the patient does not insulate the doctor against litigation. The relatively recent 2019 case of Esabunor & Another v Faweya & Ors[107] is considered an apt illustration in this context. In the case, a doctor was faced with the treatment of a patient who was a child and, legally, a minor. The diagnosis indicated that blood transfusion was necessary in treating the child. The parent on religious ground refused to consent to blood transfusion. The doctor and hospital sought and obtained a court order to undertake blood transfusion in the best interest of the child-patient and public policy.
Subsequently, the parent sued, among others, the doctor and hospital employer, challenging validity of the court order which overrode the proxy refusal of blood transfusion for the child. The case, over a period of about twenty-two years, went through different levels of the Nigerian court system up to the Nigerian Supreme Court where the doctor’s approach in obtaining court order, that sidestepped the parental objection to blood transfusion, was held legitimate and proper. Put in another perspective, the doctor was held to have acted reasonably and justifiably in the approach taken in treating the child-patient, after having to grapple with a lengthy legal battle of about twenty-two years, with the financial and other stresses. Perhaps, it bears stating that the child-patient in question got well and healthy through the applied blood transfusion and had grown into a twenty-two year old adult by the time the case came to an end at the Supreme Court.
Though not in a strict doctor versus patient scenario, the case of Georgina Ahamefule v Imperial Medical Centre and Dr Alex Molokwu[108]offers another illustration into the dilemma of doctors in the task of doing good for their patients. The plaintiff in the case, Ahamefule was an auxiliary nurse in the first defendant hospital with the second defendant, Dr. Molokwu, as proprietor. At some point, the plaintiff was diagnosed to be HIV positive. Ostensibly, in a zealous drive to avert possible transmission of HIV to the defendants’ patients, with whom the plaintiff as an auxiliary nurse would necessarily interact in the hospital setting, the defendants sacked the plaintiff. With the intervention of a civil society group, the defendants were sued for wrongful termination of employment on the human rights ground of discrimination against the plaintiff on health status. After a circuitous court odyssey, the defendants were found liable with damages of seven million Naira awarded against them and in favour of the plaintiff.[109] Added to professional legal fees, related expenses, and related stresses, this case is a forlorn illustration of the financial and other burdens which a doctor may be prone to in the course of seeking to do good for his patients.
Quite true, the aspect of human rights violation in the sacking of Ahamefule by her employers, vis-à-vis the pertinent jurisprudence, cannot be sanctified in any way.The series of academic postulations and the judicial position on the Ahamefule case highlight the need to safeguard human rights of the plaintiff, just as those of other citizens.[110] Nonetheless, the Ahamefule case is indicative of the legal and ethical conundrum that doctors have to wrestle with in the course of doing good for their patients. One poser that can be raised along this axis is: what could have been the outcome if the hospital and doctor in that case did not take the measure of laying-off the HIV-infected auxiliary nurse, and one or more of the doctor’s patients got infected with HIV through interactions with the nurse resulting in litigation by the infected patients on the ground of the doctor and hospital’s default?
In perspective, the earlier noted cases of Okonkwo, in one respect, and Faweya in another portray the likely dilemma of doctors in the project of safeguarding patients’ interest qua the patients. Ahamefule case, at another level, seems to symbolize the likely predicament of doctors in deciding on which side to tilt where patients’ interests conflict with individual third party interests or collective public interest.[111] Simply, a doctor carrying the burden of acting in his patient’s best interest may, literally, find himself on “horns of dilemma” when the patient’s interest is in contest with other persons’ or general public interest. The doctor in Ahamefule case would appear to have readily, even if summarily and drastically, put the health interest and good of his patients over and above the human right and employment interests of the plaintiff as a third party. For this, he reaped a litigation headache and consequential judicial sanctioning.
The dilemma of a doctor in an attempt to resolve such “patient versus others” puzzle can be quite confounding at times, going by a juxtaposition of the two cases of Tarasoff v. Regents of the University of California,[112] on the one hand and Duncan v Medical Practitioners Disciplinary Committee[113]on the other. The two cases relate to the duty of doctors to keep the confidence of patients,[114] violation of which can be a ground of inappropriate conduct against an erring doctor.
In the case of Tarrasof, a mental patient informed his doctor of his intention to kill a lady that had spurned his love advances. The doctor, apparently, in safeguarding his patient’s interest by keeping his confidence, failed to notify or warn the potential victim. The patient eventually carried out his intention by killing the lady. The doctor and his employers were found liable in a suit instituted by the lady’s family. In the case of Duncan, the patient who was a public bus driver suffered from a heart condition. On learning that the patient was to resume driving passengers his doctor informed potential passengers of the patient’s health condition and the threat he constituted to their safety. The doctor was found culpable for unethical conduct, among others, on the ground that he informed inappropriate parties.
It is noteworthy that the two cases of Tarrasof and Duncan are cases arising in jurisdictions with Common Law background just as Nigeria. The two cases are thus applicable in Nigerian courts and jurisprudence as persuasive authorities. While the two cases have to be considered in their respective material contexts, a pertinent fact is that the two cases hold different positions on a substantially similar issue – that is, doctors warning or failing to warn persons to whom the doctors’ patients constitute harmful risk.
The propriety of making doctors to operate under a stifling legal regimentation and attendant threat of litigation has been, and will continue to be, a subject of emotive debate.[115] However, the prevailing reality remains that doctors have to interact with their patients in an atmosphere with litigation dangling over them like the idiomatic Sword of Damocles.[116]One likely implication of this scenario is that in dealing with a patient a doctor may embrace ‘defensive’ or self-preserving attitudes for his own good,with greater concern on avoiding legal and ethical pitfalls or heartaches of litigation, rather than going extra mile or taking risk that may better serve the interest of a patient in dire need. This mentality, perhaps, may be a factor in the concurrences in Nigeria where doctors summarily reject or refer patients to other hospitals, especially in emergency cases, such as gunshot injuries, instead of taking steps that may primarily assist the situations of the patients.[117] Put simply, a doctor may elect to err on the side of caution by rejecting, referring or refusing a patient so as to avoid litigation or ‘police troubles’ instead of being humanitarian by attending to the patient in the light of the prevailing legal and ethical straitjackets.
The propriety of making doctors to operate under a stifling legal regimentation and attendant threat of litigation has been, and will continue to be, a subject of serious debate.[118] However, the prevailing reality remains that doctors have to interact with their patients in an atmosphere with litigation dangling over them like the idiomatic Sword of Damocles.[119]One likely implication of this scenario is that in dealing with a patient a doctor may embrace ‘defensive’ or self-preserving attitudes for his own good,with greater concern on avoiding legal and ethical pitfalls or heartaches of litigation, rather than going extra mile or taking risk that may better serve the interest of a patient in dire need.[200]
Conclusion
Where doctors in the discharge of their professional services act below permissible standards or professional expectation it is expected that law, as a tool of social regulation and control, intervene in the preservation of the interest of affected citizens. Where doctors do bad, or act inappropriately in dealing with patients, it can hardly be debated that such doctors should
confront the prescribed sanctions, afforded by litigation, for doing bad. This is the point at which medical litigation enters into the jurisprudential parabola. A point for reflection, however, is where doctors still face the rigours and stresses of litigation where they do good or act in compliance with due process in undertaking medical treatment of patients, as some cases highlighted above exemplify. The point of concern is that doctors hardly have windows of meaningful compensation for the financial and other inconveniences experienced in the course of fighting such undeserved court battles, where ultimately cleared for doing good or acting appropriately in the structure of extant guidelines.[201]
True, it could be tragic and a source of grief that a doctor who, in his professional judgment and good conscience, acts in the best interest of his patient gets rewarded with stressful and expensive litigation. Or, where a doctor in preserving overall public health interests get into trouble of litigation because of trespassing on the rights or interests of patients. Somehow, that is the reality doctors in the performance of their medical duties have to grapple with in the scope of medical negligence and other genres of medical litigation. Generally, it would seem uncanny for doctors to perceive patients as potential litigants or enemies rather than friends whose best interest doctors have to protect. Similarly, it would be dispiriting for doctors to get into trouble with authorities in the quest of safeguarding public interests by subjugating patients’ private interests. It would also be precarious for society where doctors become constrained to focus on their own interests over and above patients and public interests, for the sake of staying out of trouble. These and related issues are what the bench, bar and other stakeholders would need to engage in striving for the appropriate balance in adjudications on medical negligence and medical litigations in other ramifications.
[1] Generally, victorious parties in litigations, in addition to damages awarded, are entitled to costs which are awarded at the discretion of the courts. In some cases parties can claim legal expenses. Albeit, it is a matter of debate whether such can adequately compensate for all the expenses and other non-pecuniary effects of facing hazardous litigations that may run for scores of years. For example, the earlier mentioned case of Esabunor & Another v Faweya & Ors. ran for about 22 years through, practically, all the levels of the Nigerian court system ending at the highest Supreme Court. Perhaps, the medical malpractice insurance scheme under the Nigerian Health Insurance Scheme Act may offer some respite.
Footnotes
[1] See generally, the Book of Genesis, Chapters 1 and 2, Holy Bible (Reference Edition), (China: Clanrentian Publications, 2010), pp.1-3.
[2] Ibid at p. 3.
[3] For some basic information on cloning of humans, see e.g. National Human Genome Research Institute [Bethesda, USA], Cloning Fact Sheet, online at https://www.genome.gov/about-genomics/fact-sheets/Cloning-Fact-Sheet (accessed on 7/10/2019). See also Joseph Castro, Live Science, ‘FAQ: How are cloned animals made? online at https://www.livescience.com/16589-faq-cloning-animals.html (accessed on 7/10/2019)
[4] See generally Genesis Chapter 3, Holy Bible supra note 1.
[5] For reading on the Code of Hammurabi as related to medical practice, see e.g, Bayard Holmes, M.D., ‘The Most Ancient Medical Practice Laws.’ The Code of Hammurabi, 2200 B. C JAMA. 1905;XLIV(4):293-294
[6] As adopted verbatim from Prince, J. Dyneley. “The Code of Hammurabi.” The American Journal of Theology 8, no. 3 (1904), 6 [available at. http://www.jstor.org/stable/3153895 (accessed on 27/7/2019)]. See also OER Services: Western Civilisation online at https://courses.lumenlearning.com/suny-hccc-worldhistory/chapter/hammurabis-code/ (accessed on 27/7/2019); and Ancient Pages, ‘Hammurabi: The Great King Of Babylon And His Laws’online at http://www.ancientpages.com/2016/10/21/hammurabi-the-great-king-of-babylon-and-his-laws/ (accessed on 27/7/2019).
[7] As adapted from C. Ben Mitchel and D. Joy Riley, Christian Bioethics: a Guide for Pastors, Healthcare Professionals and Families, (Nashville, Tennessee: B&H Publishing Group, 2014), 1. Another source present what appears to be variant interpretation of this provision s as follows: “§218 If a physician operate on a man for a severe wound with a bronze lancet and cause the man’s death, or open an abscess in the eye of a man with a bronze lancet and destroy the man’s eye, they shall cut off his fingers” – see Allen D. Spiegel, ‘Hammurabi’s Managed Health Care — Circa 1700 B.C.’ On line at https://www.managedcaremag.com/archives/1997/5/hammurabis-managed-health-care-circa-1700-bc (accessed on 27/2019)
[8] Allen D. Spiegel, ibid: “§219-220 “If a physician operate on the slave of a freeman for a severe wound with a bronze lancet and cause his death, he shall restore a slave of equal value. If he open an abscess in his eye with a bronze lancet, and destroy his eye, he shall pay silver to the extent of one-half his price (average prices for male slaves ranged from 16-30 shekels).”
[9] See ‘Hippocratic Oath’ in JK Mason, RA McCall Smith and GT Laurie, Law and Medical Ethics, 6th ed. (London: Reed Elevier (UK Ltd), 2002), 663.
[10] See respectively e.g. Declaration of Geneva (As amended at Stockholm, 1994) along with International Code of Medical Ethics (As amended at Venice, 1983) in JK Mason, RA McCall Smith and GT Laurie, ibid at 664 and 665 respectively.
[11] See e.g., Re SL (adult patient) (medical treatment) (2000) 55 BMLR 105 at 119 per Thorpe L.J[12] See generally, JK Mason, RA McCall Smith and GT Laurie, supra note 9 at 21-24.
[13] The concerns over medical errors appear to be attracting greater attention in present times, connoting that since 1999 the disturbing rates of medical errors have not significantly improved. An later account paints the picture thus: “A study in the current issue of the Journal of Patient Safety suggests that each year between 210,000 and 440,000 American patients who go to the hospital for care suffer some type of preventable harm that contributes to their death, making medical errors the third-leading cause of death in America after heart disease and cancer. If America suffers from this degree of medical negligence, even with its more highly developed and sophisticated health care system, then it follows that Nigeria, with its weaker health care infrastructure and under reporting of medical negligence cases, is even worse off. And while there is no incontrovertible data on the actual number of medical negligence cases in Nigerian hospitals, patients and medical practitioners alike acknowledge that number to be very high.” – Temitayo Olofinlua, ‘Medical Negligence in Nigeria: When Hospitals Kill’, online at https://www.radianthealthmag.com/health-wellness/medical-negligence-in-nigeria/ (accessed on 7/9/19)
[14] Claudio Violato supra note 15
[15] Ibid: “It is not surprising then that few advances have been made in reducing medical errors and increasing patient safety in the past decade. A recent study of 464 major adult cardiac surgical cases at three hospitals resulted in 1,627 reports of problems and errors for an average of 3.5 and maximum of 26 per procedure. Nearly three-fourths of the cases (73.3%) had at least one recorded event. One-third (33.3%) of events occurred prior to the first incision, and 31.2% of events occurred while on bypass. About two-thirds (68.0%) of events were considered as minor in severity (e.g., delays and missing equipment), but a frightening percentage (32.0%) was considered major and included anastomotic problems (e.g., suturing vessels), pump failure, and drug errors. Many (30.9%) of the problems were never even discussed among the surgical team. A wide range of problems and errors occurs during the majority of cardiac surgery procedures. Cynics argue that the number of medical mistakes is much higher than is commonly accepted because most of the errors are buried with the patient.”
[16] No. 35, 1999. For an overview of this Act, see generally, e.g. D. Obalum and F. Fiberesima, ‘Nigerian National Health Insurance Scheme (NHIS): an overview’ The Nigerian Postgraduate Medical Journal 19(3):167-74, · September 2012.
[17] I.O. Iyioha, ‘Medical Negligence’ in I.O. Iyioha and R.N. Nwabueze (eds.) Comparative Health Law and Policy: Critical Perspectives on Nigerian and Global Law (Surrey, England: Ashgate Publishing Limited, 2015), 93. See also ibid on the aspect of introduction of Standards Committee with responsibility for making recommendations on quality assurance to the Scheme’s management. As the author noted, “the Scheme can serve as an effective mechanism to ensure a commitment to high standards in clinical practice.”
[18] Ibid.
[19] See Babafemi Odunsi, ‘SERVICOM versus Problematic Health and other Public Services in Nigeria: Legal and Some other Perspectives’, African Journal of Institutions and Development (AJID) Vol. V (7&8) 2010, 200-209.
[20] See Temitayo Olofinlua, ‘Medical Negligence in Nigeria: When Hospitals Kill’, online at https://www.radianthealthmag.com/health-wellness/medical-negligence-in-nigeria/ (accessed on 7/9/19); Temitayo Olofinlua, ‘Medical Negligence in Nigeria [Part 2]: The Slow Road to Justice’ online at https://www.radianthealthmag.com/health-wellness/medical-negligence-in-nigeria-the-long-road-to-justice/ (accessed on 7/9/19): “Many people die in Nigerian hospitals as a result of medical negligence, yet few cases of medical negligence are ever reported, and even fewer prosecuted. Long trial periods, corruption and a general mistrust of the judicial system are a few of the reasons many Nigerians think twice before filing a case of medical negligence in the courts”. See also Ayodamola Owoseye, ‘SPECIAL REPORT: How patients lose lives, body parts due to alleged medical negligence at Nigerian hospitals’ online at https://www.premiumtimesng.com/news/headlines/255476-special-report-patients-lose-lives-body-parts-due-alleged-medical-negligence-nigerian-hospitals.html (accessed on 7/9/19)
[21] Claudio Violato supra note 15
[22] See Babafemi Odunsi, ‘While the Elephants dance: Reflections on Nigeria’s National Health Act’ Conference Paper presented at the Ace Medicare Clinics Ltd/Covenant University, Ota, Medical Conference on The 2014 National Health Act, Covenant University, Ota,(15, December, 2015. See also, Babafemi Odunsi and Raimi A, ‘Right to health: Interfacing the Nigerian National Health Act and the Constitution’ Crescent University Law Journal. See also Babafemi Odunsi, ‘SERVICOM versus Problematic Health and other Public Services in Nigeria: Legal and Some other Perspectives’, supra note 30.
[23] Blyth v. Birmingham Waterworks 1856) 11 Ex 781, at 784 per Alderson, B
[24] See generally e.g. I.O. Iyioha, supra note 27 at 68, 74-75. O.S. Kuteyi, ‘An Appraisal of Medical Negligence in Nigeria’ [PhD] Thesis submitted to the Faculty of Law, in partial fulfilment of the requirements for the award of Doctor of Philosophy (PhD) Degree in Law of the Obafemi Awolowo University, Ile-Ife, Nigeria, 2016, 87-102. See also Komolafe Akinlabi Richard Obafemi Medical Negligence Litigation in Nigeria: Identifying the Challenges and Proposing a Model Law Reform Act, A Thesis submitted to the Trinity College, Dublin in fulfilment of the requirement of the award of the Degree of Doctor of Philosophy 2017. 87-102. See as well Motunrayo Olaleye, ‘Nigeria: Medical Negligence In Nigeria: addressing the Public on its scope and the resultant Legal Implications’ online at Medical Negligence In Nigeria: Addressing The Public On Its Scope And The Resultant Legal Implications – Food, Drugs, Healthcare, Life Sciences
| Medical Negligence In Nigeria: Addressing The Public On Its Scope And Th…It is not uncommon to see this quote on a hospital building We Care, God Heals. Nigeria Food, Drugs, Healthcare,… |
(accessed on 30/8/19).
[25] See e.g Esabunor & Another v Faweya & Ors. (2019)LPELR 46961 (SC)[26] See e.g Tarassoff v Regents of the University of California, 1976, 17 Cal. 3d 425. See also, Raimi Jenyo and F. A. Aderemi(Administrators of the Estate of Basiratu Raimi (Deceased) v Akinsanmi Akinreti and Anor. (1990) NWLR (Pt.135) 663, (1990) 4 S.C 196; Aderinola Adeyemi and Ors. v Shittu Bamidele and Anor., SC 675/1965, CWLR (1968) 3, LN-E-LR/1968/7 (SC). From a legislative perspective, see e.g. Fatal Accidents Law of Lagos State, 1961.
[27] See e.g., Babafemi Odunsi, ‘Law and the Caregiver: Examining Rights, Duties and Liabilities in Nurse-Patient Relationship’ [Lead City University] Lead City Law Journal Vol. 1 (2) pp.251-265.
[28] Perhaps, it bears stating that this assertion is not in any way intended to insinuate the professional superiority of doctors in healthcare setting or the subservience of other healthcare professionals to doctors.
[29] For Nigeria, see e.g. Medical and Dental Practitioners Act, Cap. M8 Laws of the Federation of Nigeria, 2004, Criminal Code Act Cap. C39, Laws of the Federation of Nigeria, 2004, National Health Act, (2014), Compulsory Treatment and Care for Victims of Gunshot Act, 2017, Rules of Professional Conduct for Medical and Dental Practitioners. Apart from legislative and ethical provisions, Nigerian courts, through series of judicial decisions, have also created ‘judge-made laws’ on medical negligence and related cases, to prescribe acceptable conducts in the practice of medicine. For the situation outside Nigeria see e.g. Claudio Violato ‘Doctor-patient relationships, laws, clinical guidelines, best practices, evidence-based medicine, medical errors and patient safety’ Can Med Educ J. 2013; 4(1): e1–e6.
[30] In Nigeria these include the Courts, diverse Government Agencies and bodies, Medical and Dental Council of Nigeria, Nigerian Medical Association, Legislative Houses’ Committees on health, Institutional Ethics Committees and Boards; some Civil Society Groups also play roles. Beyond Nigeria see Claudio Violato ibid
[31] See inter alia, section. 3, 9, 10, 11, 15 and First Schedule, of Medical and Dental Practitioners Act.
[32] Section 11, Medical and Dental Practitioners Act. See also Claudio Violato ibid as an illustration for similar practices in other countries
[33] Section 18 Medical and Dental Practitioners Act supra note 15.
[34] For example as earlier shown, to practise in Nigeria, a doctor must be registered and licensed by the Medical and Dental Council of Nigeria. See also as to similar practices in other jurClaudio Violato ibid isdictions.
[35] Story as adapted from of Claudio Violato
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ibid.
[36] Ibid[37] Ibid
[38] See I.O. Iyioha, supra note 28 at 89-90.
[39] E.g. section 303, 305 of the Criminal Code Act supra note 15
[40] See section 1 together with sections 3, 15 and 16 of Medical and Dental Practitioners Act supra note 15
[41] This would be the major focus of this paper. For the aspect of criminal prosecutions and the defences available to a doctor charged under section 303 or 305 of the Criminal Code see I.O. Iyioha, supra note 27.
[42] The State Prosecutor can be under different appellations depending on the court of trial. If the matter is before Magistrate Court the prosecutor could be ‘Commissioner of Police’ while it would be ‘The State’ at the High Court
[43] See e.g. Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2002) AHRLR 159
[44] Supra note 27
[45] As adapted from I.O. Iyioha, supra note 28, at 92-93 where the author referred to the Operational Guidelines of the National Insurance Scheme
[46] Ibid at 93.
[47] Ibid.
[48] See section 326 of the Criminal Code supra note 15
[49] I.O. Iyioha, supra note 28 at 79.
[50] See also section 305 of the Criminal Code supra note 15
[51] See e.g. Henebery v Pharoan 232 Md. App. 468, 158 A. 3d. 1087 (2017)
[52] Ibid.
[53] Section 134 Evidence Act 2011.
[54] Komolafe Akinlabi Richard Obafemi supra note 35 at 108-109, citing among others Abi v Central Bank of Nigeria [2012] 3 NWLR 1
[55] Ibid at 109.
[56] [2015] 3 NWLR 421.
[57] Ibid at 452-453
[58] (1863) 2 H & C 722; 159 ER 299.
[59] Byrne v Boadle 159 ER 299, at 300.
[60] (1865) 3 H & C 596, at 601; 159 ER 665, at 667.
[61] Ibid at 601 and 667 respectively
[62] (2004) 18 NSCQR 334; (2004) 8 NWLR (874) 206.
[63] (2004) 18 NSCQR 334; (2004) 8 NWLR (874) 206.[64] Extracted from the case of Plateau State Health Services Management Board & Anor v Philip Fitoka Goshwe, Suit No. SC.229/2003; [2013] 2 NWLR 383; LPELR-SC.229/2003 (online at www.lawpavillionpersonal.com (accessed on 29/09/2019).
[65] Ibid.
[66] See Komolafe Akinlabi Richard Obafemi supra note 35 at 255-265
[67] Supra note 54
[68] Ibid., at 37-38, Nwodo JCA stated: “There is no reasonable evidence adduced to show [that] the defendants did not act in accordance with practice accepted for the treatment of meningitis diagnosed. The sole testimony of the plaintiff certainly could not per se amount to proof of the particulars of negligence pleaded against the defendants.”
[69] Ibid., at 38.
[70] Supra note 64
[71] Per Alagao JSC, supra note 64. For further judicial engagements of res ipsa loquitor in medical negligence cases see e.g. Lagos University Teaching Hospital v Yemi Lawal, (1982) 3 FNR 184: “Having regard to the foregoing I am satisfied that the defendant has taken the trouble to give reasonable explanation as to what could have caused the plaintiff’s condition, most of which the learned trial judge did not consider. It is noteworthy that the plaintiff originally based her case on the negligence of the second defendant which she failed to prove, and that no other servant or agent of the defendant was found negligent by the Court. In the circumstances, I am firmly of the view that the principle of res ipsa loquitur is inapplicable in this case.” – at 195 per Kazeem JCA. See also, Ojo v Gharoro & Ors, [2006] 10 NWLR 173: In the case, the plaintiff, based on inability to get pregnant, attended the defendant hospital. Inter alia, the medical prognosis was that the removal of a growth might help her in getting pregnant. The medical surgery was done but a broken needle was left in the plaintiff’s womb as a result of which she experienced pains. She sued, pleading and relying mainly on res ipsa loquitur, without calling any medical expert witness in addition to support her case. The Supreme Court held that the lack of expert medical evidence was damaging to the plaintiff’s case and that on the basis of the evidence that the defendants had rebutted the presumption of negligence. “In the circumstances, I have no difficulty in coming to the conclusion that the presumption of negligence on the part of the defendants was clearly rebutted by the evidence …, per Tobi JSC, at p. 210.
[72] See e.g, [Ghana] Asantekramo alias Kumah v Attorney-General, [1975] 1 GLR 319, Asafo v Catholic Hospital of Apam, [1973] 1 GLR 282 and [Kenya] Muchoki v Attorney-General [2004] 2 EA 178.
[73] See generally e.g. Unilorin Teaching Hospital v Abegunde supra note 56, Abi v Central Bank of Nigeria supra note 54 and Ojo v Gharoro & Ors, supra note 71.
[74] See e.g. Lagos University Teaching Hospital v Yemi Lawal supra note 71.
[75] In this paper, detailed legal or jurisprudential analyses of these specific defences will not be undertaken in detail. A general overview will only be undertaken in a brief descriptive manner.
[76] E.g. Limitation Law, Ogun State Vol. 3 Laws of Ogun State 2006, and Public Officers Protection Law, Laws of Ogun State.
[77] For principles applicable in this area see e.g. United Bank for Africa and Anor. v Ngozi Achoru, SC 33/1988 obtained online at http://www.nigeria-law.org/United%20Bank%20for%20Africa%20Ltd%20%20&%20Anr%20V%20%20Mrs.%20Ngozi%20Achoru.htm
[78] For more detailed discussion of contributory negligence as defence, see Komolafe Akinlabi Richard Obafemi supra note 35 at 242-248.
[79] See e.g. Arojojoye v Wata Timber Co. Ltd. SC/363/1964, 3PLR/1966/32 (SC) https://judgements.lawnigeria.com/2018/10/17/3plr-arojojoye-v-wata-timber-co-ltd/. See also Benjamin Obasuyi and Anor. v Business Ventures Ltd. 5 NWLR (Pt. 658) 668, SC. 104/1994 https://judgements.lawnigeria.com/2018/10/22/3plr-benjamin-obasuyi-v-business-ventures-ltd/
[80] A scenario that can, perhaps, be cited in this regard is where a patient agrees to be treated for HIV with controversial treatment lines. See See e.g. Chukwuma Muanya, ‘Fresh controversy over Abalaka’s HIV cure claims’ The Guardian, Nigeria online at https://guardian.ng/news/fresh-controversy-over-abalakas-hiv-cure-claims/ (accessed on 10/10/2019). See also [Nigerian] National Agency for the Control of AIDS, ‘Re: Nigerian scientist conquers HIV/AIDS’ https://naca.gov.ng/re-nigerian-scientist-conquers-hivaids/ (accessed on 10/10/2019).[81] See e.g. ‘Defenses to Medical Malpractice’, online at https://injury.findlaw.com/medical-malpractice/defenses-to-medical-malpractice-patients-negligence.html (accessed on 4/10/2019)
