March 3, 2024

What Does the Law say About Patients’ Rights by Sofiyyullah Oladipo Akinyemi [Part 2]


A Patient’s Rights


Patients have rights that accrue to all human beings, as in the general fundamental human right and all declarations stipulating human rights. As patients that is a person receiving or ready to receive medical treatment, they are in a somewhat venerable situation they out to be receiving medical care and attention and as a result some rights are peculiar to them, these rights are first generation rights. Because what is the right to life if you don’t have the right to quality health care

The Article 25 of the Universal Declaration of Human Rights (1948) grants the right to a standard of living adequate for the health and well-being to humans including this right aside including the basic necessities also mentions medical care and the right to security in the event of sickness. Its emphasiss the entitlement of motherhood and childhood to quality medical care.

International Covenant on Economic, Social and Cultural Rights (1966) further state in Article 12 that the States recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the steps to be taken to achieve the full realization of this right include those necessary for:
The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child, the improvement of all aspects of environmental and industrial hygiene, the prevention, treatment and control of epidemic, endemic, occupational and other diseases; and the creation of conditions which assure to all medical service and medical attention in the event of sickness.(2)
Locally patients right can be located in the Code of Medical Ethics for Doctors, the Patient Bill of Rights

Essentially, Patient’s Bill of Rights is a declaration of the various rights which are bestowed on patients or users of healthcare services to prevent them from wrongful treatment while receiving medical care. With the introduction of the PBoR, which is in line with its statutory mandate of protecting the rights of consumers, the CPC reinforces the rights of patients as recognized in the extant statutes, codes and principles of common law.
The patient’s rights as outlined in the PBoR include the following:
Right to relevant information in a language and manner the patient understands, including diagnosis, treatment, other procedures and possible outcomes. Right to timely access to detailed and accurate medical records and available services. Right to transparent billing and full disclosure of any cost, including recommended treatment plans. Right to privacy, confidentiality of medical records. Right to clean, safe and secure healthcare environment.

Right to be treated with respect, regardless of gender, race, religion, ethnicity, allegations of crime, disability or economic circumstance. Right to receive urgent, immediate and sufficient intervention and care, in the event of emergency. Right to reasonable visitation in accordance with prevailing rules and regulations. Right to decline care, subject to prevailing law and upon full disclosure of the consequences of such a decision. Right to decline or consent to participation in medical research, experimental procedures or clinical trials. Right to quality care in accordance to prevailing standards. Right to complain and express dissatisfaction regarding services rendered

The legal frameworks under which the enforcement of the PBoR are applicable include legislations (such as the Nigerian Constitution, the National Health Act, Medical and Dental Practitioners Act and the Consumer Protection Council Act); and common law principle on medical negligence.

A patient who has suffered harm or injury as result of breach of any of the rights in the PBoR may seek to enforce same through the mechanisms provided by the CPC pursuant to the Consumer Protection Act, or by instituting an action in court pursuant to the provisions of the Constitution, the National Health Act and under common law tort for medical negligence. In addition, a disciplinary proceeding may be instituted under the Medical and Dental Practitioners Act against the medical practitioner or healthcare provider in breach of the patient’s rights.
The rights of patients are listed in Part III OF The National Health Act

These include the patient’s right to be given relevant information pertaining to his state of health and necessary treatment relating thereto, right of access to health records, right to confidentiality of information relating to his health status, treatment or stay in a health facility. The Act also provides that every healthcare establishment is required to have a mechanism through which users may channel complaint on the services received.

These include the patient’s right to be given relevant information pertaining to his state of health and necessary treatment relating thereto, right of access to health records, right to confidentiality of information relating to his health status, treatment or stay in a health facility. The Act also provides that every healthcare establishment is required to have a mechanism through which users may channel complaint on the services received.

• Manifestation of incompetence
Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them.

Who is a reasonable Doctor
For example, a doctor must ‘act in accordance with a practice accepted as a proper body of reasonable and skilled medical opinion, and is not negligent merely because there is a body of opinion which would take a contrary view’.
this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”.
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man.need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising’ that particular art (a health care professional), is not guilty of negligence if he has ‘acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in the particular act”,

Negligence in law means failure to do, which a reasonable man in the circumstances would do: or doing something, which a reasonable man in the circumstances would not do. [2] Actions of doctors are to bejudged by actions of other doctors skilled in that particular art under similar circumstances and at a material time. The famous quote “Ship surgeon’s duty to bejudged on fair play and not by Harley street standards” suggests that the actions of a doctor in primary health centre cannot be compared to one in a tertiary care hospital i.e. a proper sense of proportion requires us to have regard to the conditions in which hospital and doctors have to work. [3, 4].

Also as said by Lord Denning in Roe vs Ministry of hHealth (1954) 2 All E.R.1.31″We must not look at 1947 event with 1954 spectacles” as in both these cases the facilities and knowledge are not comparable. [1, 3] Moreover, skills and degree of ” care shown by a MSSS doctor cannot be compared ‘with that of a specialist. So for comparison two doctors possessing similar qualIficatlons, acting under similar circumstances and at same period’of time should be considered.

Another issue is that, when there are two or more bodies of opinion regarding a mode of treatment then what a doctor should do? In such cases a doctor is not held liable if he acts in accordance with a practice accepted as,proper by a responsible body of medical man skilled’ in a particular form of treatment in question, merely because there is a body of competent professional opinion which might adopt a different r technique as said in Urray’ vs.Bierer (1955) The ttmes, 16 March, on appeal The Times, 15 July. [4]

• Failure to refer MR. AKINYEMI
• Who is a reasonable Doctor MR. AKINYEMI

  1. Defences:
    • Statue of Limitation MR. AKINYEMI
    Generally, the limitation period for actions in contract or tort is six years, except for actions in tort for personal injuries, where the period tends to be shorter – two or three years, depending on the legislation. The reason for this disparity in limitation periods has been identified as resting on the fact that victims of personal injury need to be compensated within a reasonable time, but this is scarcely a sound justification for curtailing the right of action of victims of personal injuries by such a short limitation period.
    3 years
  2. The need for capacity building amongst Lawyers MESSERS. MUOKA, AKINYEMI & OLAYIWOLE Tobi JSC did go on, however, to make the following important obiter dictum: “Let me take the opportunity to say one last word on the quality of surgical needles. The [doctor], a Consultant, said under cross- examination that a surgical needle is not a strong tool. It breaks or snaps easily. This worries me. It is sad that an instrument for operation of (sic) the human being is not strong enough that ‘It breaks or snaps easily’. It is surprising that an instrument which goes into a human body is not strong enough. I seem to be repeating myself and I have no apologies for that. I think something must be done and very urgently. The medical profession must invent surgical needles that will stand the test of time to ensure that they do not ‘break or snap easily’.”687

The judge in Bolitho reasoned that:

‘It is not enough for a defendant to call a number of doctors to say that what he had done or not done was in accord with accepted clinical practice. It is necessary for the judge to consider that evidence and [to] decide whether that clinical practice puts that patient unnecessarily at risk.

• Patients being generally people in need of Medical attention and health care and treatment, do have some peculiar rights, these rights are however not new because some of them are rights that have been embedded in the fundamental rights provisions in the constitution.
• The right to life enshrined in section 33 of the 1999 constitution as amended would be inchoate without an attending access to quality healthcare,
• Section 20 of the National Health Act 2014 prohibits a health worker or health establishment from refusing emergency health treatment to a person for whatever reason. Section 20(3) allows the health care provider to refuse treatment to a person who is physically or verbally abusive, or sexually harasses the health worker, except such person is a psychotic patient.
• Section 23 and 24 of the NHA safeguards the right of patients to access to full details of all relevant information pertaining to their health.
• Section 26 OF the NHA declares all information relating to a patients health Status, or stay in a health care facility as confidential.
• The disclosure will be lawful where
• a) the user consents to that disclosure in writing;
• (b) a court orders or any law requires that disclosure ;
• (c) in the case of a minor, with the request of a parent or guardian ;
• (d) in the case of a person who is otherwise unable to grant consent upon the request of a guardian or representative ; or
• (e) non-disclosure of the information represents a serious threat to public health.
• Other rights of the patient are stated in Patients Bill of Rights which is collection of patients’ rights that exist in other instruments including, the Constitution, the Consumer Protection Act, the Child Rights Act, the Freedom of Information Act, the National Health Act, the code of medical ethics and the Hippocratic Oath.
• Section 46 also gurantees the right of patient to seek medical check up, investigation or treatment any where within and outside Nigeria the condition that no public officer of the Government of the Federation or any part thereof shall be sponsored for medical check-up, investigation or treatment abroad at public expense except in exceptional cases on the recommendation and referral by the medical board and which recommendation or referral shall be dully approved by the Minister or the Commissioner as the case may be.
• Interestingly in Medical and Dental Practitioners Disciplinary Tribunal v. John Nicholas Okonkwo. [2001] FWLR (pt. 44) 542., the Supreme Court per Ayoola JSC upheld the right of a competent adult patient to reject life saving treatment. The court held among other things that, ‘if a competent adult patient exercising his right to reject lifesaving treatment on a religious grounds, thereby chooses a patch that may ultimately lead to his death, in the absence of judicial intervention overriding the patient’s decision, what meaningful option is the practitioner left with, other, perhaps than to give the patient the comfort?
• The supreme court in Okonkwo, upheld the right of a patient to freedom to freedom of thought conscience and religion. When it held there was nothing a medical practitioner could do save state intervention when a patient refuses life saving treatment based on his faith.
• The Patients’ bill of rights guarantees the following rights
• 1. Right to relevant information,
• 2. Right to timely access to medical records,
• 3. Right to transparent billing
• 4. Right to privacy
• 5. Right to clean healthcare environment
• 6. Right to be treated with respect.
• 7. Right to receive urgent care
• 8. Right to reasonable visitation
• 9. Right to decline care
• 10. Right to decline or accept to participate in medical research
• 11. Right to quality care
• 12. Right to complain and express dissatisfaction regarding services received.
• The Patient Bill of Right is remains a policy document.
• patients who suffer harm or injury as result of breach of any of the rights in the PBoR may seek to enforce them through the mechanisms provided by the CPC pursuant to the Consumer Protection Act, or by instituting an action in court pursuant to the provisions of the Constitution, the National Health Act and under common law tort for medical negligence or breach of Doctor/Patience Contractual duty of care. In addition, disciplinary proceedings may be instituted under the Medical and Dental Practitioners Act against the medical practitioner or healthcare provider in breach of the patient’s rights.
• This is making an incorrect diagnosis particularly when the clinical features are so glaring that no reasonable skillful practitioner could have failed to notice them.
• WHO is a reasonable doctor
• A reasonable doctor is one who acts in accordance with a practice accepted as a proper and reasonable by a body of skilled medical men or opinion, and such doctor will not negligent merely because there is a body of opinion which would take a contrary view. This is as stated Bolam v Friern Hospital Committee [1957] 1 WLR 582, where it was held that a doctor would have a defence “if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.
• The Bolam test remains the starting point in ascertaining who is a reasonable doctor, Medical Negigence /malpractices cases have called into question the idea that an acceptable standard of care can be left alone to Doctors to judge without any significant role performed by the court.
• In Abi v Central Bank of Nigeria, 4 [2012] 3 NWLR 1. the patient, an employee of the first defendant, took ill and was admitted in the defendant’s clinic where he was examined by the third defendant. The plaintiff claimed that the third defendant had negligently diagnosed, prescribed and administered on him drugs, including gentamycin, that made him permanently deaf. The Court of Appeal, Abuja Judicial Division made reference to Bolam and found that the third defendant had conformed with an acceptable standard practice. It was held that “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.
• But the court eventually adopted the test used in Bolitho v. City and Hackney Health Authority, [1996] 4 All ER 771, where a child required Intubation but was not intubated by a Doctor and subsequently suffered brain injury, and the Court held that a medical decision that is not capable of withstanding logical analysis is unreasonable and the treatment therefore negligent.
• Hence the test of who of the proper practice upheld by a body of skilled professionals would also be evaluated by the Judge to determine if a doctor was reasonable by all material standards.
• The judge in Bolitho had reasoned that:
• ‘It is not enough for a defendant to call a number of doctors to say that what he had done or not done was in accord with accepted clinical practice. It is necessary for the judge to consider that evidence and [to] decide whether that clinical practice puts that patient unnecessarily at risk.
• This has been followed in Ojo v Gharoro (2015) 2 NWLR (Pt. 1447) 421; (2013) LPELR- 21375(CA) And Unilorin Teaching Hospital v. Abegunde (2006) 10 NWLR (Pt. 987)173 S.C.
• Generally, the limitation period for damages for negligence is three years.

A PATIENTS RIGHT
PATIENTS HAVE ALL THE RIGHTS THAT ACCRUE human being as in the general fundamental human right and all declarations stipulating human rights. As patients that is a person receiving or ready to receive medical treatment, they are in a somewhat venerable situation they out to be receiving medical care and attention and as a result some rights are peculiar to them, these rights are first generation rights. Becos what is the right to life if you don’t have the right to quality health care

The Article 25 of the Universal Declaration of Human Rights (1948) grants the right to a standard of living adequate for the health and well-being to humans including this right aside including the basic necessities also mentions medical care and the right to security in the event of sickness. Its emphasiss the entitlement of motherhood and childhood to quality medical care.
International Covenant on Economic, Social and Cultural Rights (1966) further state in Article 12 that the States recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the steps to be taken to achieve the full realization of this right include those necessary for:
The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child,
The improvement of all aspects of environmental and industrial hygiene,
The prevention, treatment and control of epidemic, endemic, occupational and other diseases; and
The creation of conditions which assure to all medical service and medical attention in the event of sickness.(2)
Locally patients right can be located in the code of medical ethics for doctors, the patient bill of rights

Essentially, Patient’s Bill of Rights is a declaration of the various rights which are bestowed on patients or users of healthcare services to prevent them from wrongful treatment while receiving medical care. With the introduction of the PBoR, which is in line with its statutory mandate of protecting the rights of consumers, the CPC reinforces the rights of patients as recognized in the extant statutes, codes and principles of common law.
The patient’s rights as outlined in the PBoR include the following:
Right to relevant information in a language and manner the patient understands, including diagnosis, treatment, other procedures and possible outcomes. Right to timely access to detailed and accurate medical records and available services. Right to transparent billing and full disclosure of any cost, including recommended treatment plans. Right to privacy, confidentiality of medical records. Right to clean, safe and secure healthcare environment.

Right to be treated with respect, regardless of gender, race, religion, ethnicity, allegations of crime, disability or economic circumstance. Right to receive urgent, immediate and sufficient intervention and care, in the event of emergency. Right to reasonable visitation in accordance with prevailing rules and regulations. Right to decline care, subject to prevailing law and upon full disclosure of the consequences of such a decision. Right to decline or consent to participation in medical research, experimental procedures or clinical trials. Right to quality care in accordance to prevailing standards. Right to complain and express dissatisfaction regarding services rendered

The legal frameworks under which the enforcement of the PBoR are applicable include legislations (such as the Nigerian Constitution, the National Health Act, Medical and Dental Practitioners Act and the Consumer Protection Council Act); and common law principle on medical negligence.

A patient who has suffered harm or injury as result of breach of any of the rights in the PBoR may seek to enforce same through the mechanisms provided by the CPC pursuant to the Consumer Protection Act, or by instituting an action in court pursuant to the provisions of the Constitution, the National Health Act and under common law tort for medical negligence. In addition, a disciplinary proceeding may be instituted under the Medical and Dental Practitioners Act against the medical practitioner or healthcare provider in breach of the patient’s rights.
The rights of patients are listed in Part III OF The National Health Act

These include the patient’s right to be given relevant information pertaining to his state of health and necessary treatment relating thereto, right of access to health records, right to confidentiality of information relating to his health status, treatment or stay in a health facility. The Act also provides that every healthcare establishment is required to have a mechanism through which users may channel complaint on the services received.

These include the patient’s right to be given relevant information pertaining to his state of health and necessary treatment relating thereto, right of access to health records, right to confidentiality of information relating to his health status, treatment or stay in a health facility. The Act also provides that every healthcare establishment is required to have a mechanism through which users may channel complaint on the services received.

• Manifestation of incompetence
Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them.

Who is a reasonable Doctor
For example, a doctor must ‘act in accordance with a practice accepted as a proper body of reasonable and skilled medical opinion, and is not negligent merely because there is a body of opinion which would take a contrary view’.
this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”.
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man.need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising’ that particular art (a health care professional), is not guilty of negligence if he has ‘acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in the particular act”
, Negligence in law means failure to do, which a reasonable man in the circumstances would do: or doing something, which a reasonable man in the circumstances would not do. [2] Actions of doctors are to bejudged by actions of other doctors skilled in that particular art under similar circumstances and at a material time. The famous quote “Ship surgeon’s duty to bejudged on fair play and not by Harley street standards” suggests that the actions of a doctor in primary health centre cannot be compared to one in a tertiary care hospital i.e. a proper sense of proportion requires us to have regard to the conditions in which hospital and doctors have to work. [3, 4] Also as said by Lord Denning in Roe vs, ,minis~ry of health (1954) 2 All E.R.1.31″We must not look at 1947 event with 1954 spectacles” as in both these cases the facilities and knowledge are not comparable. [1, 3] Moreover, skills and degree of ” care shown by a MSSS doctor cannot be compared ‘with that of a specialist. So for comparison two doctors possessing similar quautlcatlons, acting under similar circumstances and at same period’of time should be considered.
Another issue is that, when there are two or more bodies of opinion regarding a mode of treatment then what a doctor should do? In such cases a doctor is not held liable if he acts in accordance with a practice accepted as,proper by a responsible body of medical man skilled’ in a particular form of treatment in question, merely because there is a body of competent professional opinion which might adopt a different r technique as said in Urray’ vs.Bierer (1955) The ttmes, 16 March, on appeal The Times, 15 July. [4]

• Failure to refer MR. AKINYEMI
• Who is a reasonable Doctor MR. AKINYEMI

  1. Defences:
    • Statue of Limitation MR. AKINYEMI
    Generally, the limitation period for actions in contract or tort is six years, except for actions in tort for personal injuries, where the period tends to be shorter – two or three years, depending on the legislation. The reason for this disparity in limitation periods has been identified as resting on the fact that victims of personal injury need to be compensated within a reasonable time, but this is scarcely a sound justification for curtailing the right of action of victims of personal injuries by such a short limitation period.
    3 years
  2. The need for capacity building amongst Lawyers MESSERS. MUOKA, AKINYEMI & OLAYIWOLE Tobi JSC did go on, however, to make the following important obiter dictum: “Let me take the opportunity to say one last word on the quality of surgical needles. The [doctor], a Consultant, said under cross- examination that a surgical needle is not a strong tool. It breaks or snaps easily. This worries me. It is sad that an instrument for operation of (sic) the human being is not strong enough that ‘It breaks or snaps easily’. It is surprising that an instrument which goes into a human body is not strong enough. I seem to be repeating myself and I have no apologies for that. I think something must be done and very urgently. The medical profession must invent surgical needles that will stand the test of time to ensure that they do not ‘break or snap easily’.”687

The judge in Bolitho reasoned that:

‘It is not enough for a defendant to call a number of doctors to say that what he had done or not done was in accord with accepted clinical practice. It is necessary for the judge to consider that evidence and [to] decide whether that clinical practice puts that patient unnecessarily at risk.

• Patients being generally people in need of Medical attention and health care and treatment, do have some peculiar rights, these rights are however not new because some of them are rights that have been embedded in the fundamental rights provisions in the constitution.
• The right to life enshrined in section 33 of the 1999 constitution as amended would be inchoate without an attending access to quality healthcare,
• Section 20 of the National Health Act 2014 prohibits a health worker or health establishment from refusing emergency health treatment to a person for whatever reason. Section 20(3) allows the health care provider to refuse treatment to a person who is physically or verbally abusive, or sexually harasses the health worker, except such person is a psychotic patient.
• Section 23 and 24 of the NHA safeguards the right of patients to access to full details of all relevant information pertaining to their health.
• Section 26 OF the NHA declares all information relating to a patients health Status, or stay in a health care facility as confidential.
• The disclosure will be lawful where
• a) the user consents to that disclosure in writing;
• (b) a court orders or any law requires that disclosure ;
• (c) in the case of a minor, with the request of a parent or guardian ;
• (d) in the case of a person who is otherwise unable to grant consent upon the request of a guardian or representative ; or
• (e) non-disclosure of the information represents a serious threat to public health.
• Other rights of the patient are stated in Patients Bill of Rights which is collection of patients’ rights that exist in other instruments including, the Constitution, the Consumer Protection Act, the Child Rights Act, the Freedom of Information Act, the National Health Act, the code of medical ethics and the Hippocratic Oath.
• Section 46 also gurantees the right of patient to seek medical check up, investigation or treatment any where within and outside Nigeria the condition that no public officer of the Government of the Federation or any part thereof shall be sponsored for medical check-up, investigation or treatment abroad at public expense except in exceptional cases on the recommendation and referral by the medical board and which recommendation or referral shall be dully approved by the Minister or the Commissioner as the case may be.
• Interestingly in Medical and Dental Practitioners Disciplinary Tribunal v. John Nicholas Okonkwo. [2001] FWLR (pt. 44) 542., the Supreme Court per Ayoola JSC upheld the right of a competent adult patient to reject life saving treatment. The court held among other things that, ‘if a competent adult patient exercising his right to reject lifesaving treatment on a religious grounds, thereby chooses a patch that may ultimately lead to his death, in the absence of judicial intervention overriding the patient’s decision, what meaningful option is the practitioner left with, other, perhaps than to give the patient the comfort?
• The supreme court in Okonkwo, upheld the right of a patient to freedom to freedom of thought conscience and religion. When it held there was nothing a medical practitioner could do save state intervention when a patient refuses life saving treatment based on his faith.
• The Patients’ bill of rights guarantees the following rights
• 1. Right to relevant information,
• 2. Right to timely access to medical records,
• 3. Right to transparent billing
• 4. Right to privacy
• 5. Right to clean healthcare environment
• 6. Right to be treated with respect.
• 7. Right to receive urgent care
• 8. Right to reasonable visitation
• 9. Right to decline care
• 10. Right to decline or accept to participate in medical research
• 11. Right to quality care
• 12. Right to complain and express dissatisfaction regarding services received.
• The Patient Bill of Right is remains a policy document.
• patients who suffer harm or injury as result of breach of any of the rights in the PBoR may seek to enforce them through the mechanisms provided by the CPC pursuant to the Consumer Protection Act, or by instituting an action in court pursuant to the provisions of the Constitution, the National Health Act and under common law tort for medical negligence or breach of Doctor/Patience Contractual duty of care. In addition, disciplinary proceedings may be instituted under the Medical and Dental Practitioners Act against the medical practitioner or healthcare provider in breach of the patient’s rights.
• This is making an incorrect diagnosis particularly when the clinical features are so glaring that no reasonable skillful practitioner could have failed to notice them.
• WHO is a reasonable doctor
• A reasonable doctor is one who acts in accordance with a practice accepted as a proper and reasonable by a body of skilled medical men or opinion, and such doctor will not negligent merely because there is a body of opinion which would take a contrary view. This is as stated Bolam v Friern Hospital Committee [1957] 1 WLR 582, where it was held that a doctor would have a defence “if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art.
• The Bolam test remains the starting point in ascertaining who is a reasonable doctor, Medical Negigence /malpractices cases have called into question the idea that an acceptable standard of care can be left alone to Doctors to judge without any significant role performed by the court.
• In Abi v Central Bank of Nigeria, 4 [2012] 3 NWLR 1. the patient, an employee of the first defendant, took ill and was admitted in the defendant’s clinic where he was examined by the third defendant. The plaintiff claimed that the third defendant had negligently diagnosed, prescribed and administered on him drugs, including gentamycin, that made him permanently deaf. The Court of Appeal, Abuja Judicial Division made reference to Bolam and found that the third defendant had conformed with an acceptable standard practice. It was held that “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.
• But the court eventually adopted the test used in Bolitho v. City and Hackney Health Authority, [1996] 4 All ER 771, where a child required Intubation but was not intubated by a Doctor and subsequently suffered brain injury, and the Court held that a medical decision that is not capable of withstanding logical analysis is unreasonable and the treatment therefore negligent.
• Hence the test of who of the proper practice upheld by a body of skilled professionals would also be evaluated by the Judge to determine if a doctor was reasonable by all material standards.
• The judge in Bolitho had reasoned that:
• ‘It is not enough for a defendant to call a number of doctors to say that what he had done or not done was in accord with accepted clinical practice. It is necessary for the judge to consider that evidence and [to] decide whether that clinical practice puts that patient unnecessarily at risk.
• This has been followed in Ojo v Gharoro (2015) 2 NWLR (Pt. 1447) 421; (2013) LPELR- 21375(CA) And Unilorin Teaching Hospital v. Abegunde (2006) 10 NWLR (Pt. 987)173 S.C.
• Generally, the limitation period for damages for negligence is three years.

A PATIENTS RIGHT
PATIENTS HAVE ALL THE RIGHTS THAT ACCRUE human being as in the general fundamental human right and all declarations stipulating human rights. As patients that is a person receiving or ready to receive medical treatment, they are in a somewhat venerable situation they out to be receiving medical care and attention and as a result some rights are peculiar to them, these rights are first generation rights. Becos what is the right to life if you don’t have the right to quality health care

The Article 25 of the Universal Declaration of Human Rights (1948) grants the right to a standard of living adequate for the health and well-being to humans including this right aside including the basic necessities also mentions medical care and the right to security in the event of sickness. Its emphasiss the entitlement of motherhood and childhood to quality medical care.
International Covenant on Economic, Social and Cultural Rights (1966) further state in Article 12 that the States recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and the steps to be taken to achieve the full realization of this right include those necessary for:
The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child,
The improvement of all aspects of environmental and industrial hygiene,
The prevention, treatment and control of epidemic, endemic, occupational and other diseases; and
The creation of conditions which assure to all medical service and medical attention in the event of sickness.(2)
Locally patients right can be located in the code of medical ethics for doctors, the patient bill of rights

Essentially, Patient’s Bill of Rights is a declaration of the various rights which are bestowed on patients or users of healthcare services to prevent them from wrongful treatment while receiving medical care. With the introduction of the PBoR, which is in line with its statutory mandate of protecting the rights of consumers, the CPC reinforces the rights of patients as recognized in the extant statutes, codes and principles of common law.
The patient’s rights as outlined in the PBoR include the following:
Right to relevant information in a language and manner the patient understands, including diagnosis, treatment, other procedures and possible outcomes. Right to timely access to detailed and accurate medical records and available services. Right to transparent billing and full disclosure of any cost, including recommended treatment plans. Right to privacy, confidentiality of medical records. Right to clean, safe and secure healthcare environment.

Right to be treated with respect, regardless of gender, race, religion, ethnicity, allegations of crime, disability or economic circumstance. Right to receive urgent, immediate and sufficient intervention and care, in the event of emergency. Right to reasonable visitation in accordance with prevailing rules and regulations. Right to decline care, subject to prevailing law and upon full disclosure of the consequences of such a decision. Right to decline or consent to participation in medical research, experimental procedures or clinical trials. Right to quality care in accordance to prevailing standards. Right to complain and express dissatisfaction regarding services rendered

The legal frameworks under which the enforcement of the PBoR are applicable include legislations (such as the Nigerian Constitution, the National Health Act, Medical and Dental Practitioners Act and the Consumer Protection Council Act); and common law principle on medical negligence.

A patient who has suffered harm or injury as result of breach of any of the rights in the PBoR may seek to enforce same through the mechanisms provided by the CPC pursuant to the Consumer Protection Act, or by instituting an action in court pursuant to the provisions of the Constitution, the National Health Act and under common law tort for medical negligence. In addition, a disciplinary proceeding may be instituted under the Medical and Dental Practitioners Act against the medical practitioner or healthcare provider in breach of the patient’s rights.
The rights of patients are listed in Part III OF The National Health Act

These include the patient’s right to be given relevant information pertaining to his state of health and necessary treatment relating thereto, right of access to health records, right to confidentiality of information relating to his health status, treatment or stay in a health facility. The Act also provides that every healthcare establishment is required to have a mechanism through which users may channel complaint on the services received.

These include the patient’s right to be given relevant information pertaining to his state of health and necessary treatment relating thereto, right of access to health records, right to confidentiality of information relating to his health status, treatment or stay in a health facility. The Act also provides that every healthcare establishment is required to have a mechanism through which users may channel complaint on the services received.

• Manifestation of incompetence
Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them.

Who is a reasonable Doctor
For example, a doctor must ‘act in accordance with a practice accepted as a proper body of reasonable and skilled medical opinion, and is not negligent merely because there is a body of opinion which would take a contrary view’.
this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”.
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man.need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising’ that particular art (a health care professional), is not guilty of negligence if he has ‘acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in the particular act”
, Negligence in law means failure to do, which a reasonable man in the circumstances would do: or doing something, which a reasonable man in the circumstances would not do. [2] Actions of doctors are to bejudged by actions of other doctors skilled in that particular art under similar circumstances and at a material time. The famous quote “Ship surgeon’s duty to bejudged on fair play and not by Harley street standards” suggests that the actions of a doctor in primary health centre cannot be compared to one in a tertiary care hospital i.e. a proper sense of proportion requires us to have regard to the conditions in which hospital and doctors have to work. [3, 4] Also as said by Lord Denning in Roe vs, ,minis~ry of health (1954) 2 All E.R.1.31″We must not look at 1947 event with 1954 spectacles” as in both these cases the facilities and knowledge are not comparable. [1, 3] Moreover, skills and degree of ” care shown by a MSSS doctor cannot be compared ‘with that of a specialist. So for comparison two doctors possessing similar quautlcatlons, acting under similar circumstances and at same period’of time should be considered.
Another issue is that, when there are two or more bodies of opinion regarding a mode of treatment then what a doctor should do? In such cases a doctor is not held liable if he acts in accordance with a practice accepted as,proper by a responsible body of medical man skilled’ in a particular form of treatment in question, merely because there is a body of competent professional opinion which might adopt a different r technique as said in Urray’ vs.Bierer (1955) The ttmes, 16 March, on appeal The Times, 15 July. [4]

• Failure to refer MR. AKINYEMI
• Who is a reasonable Doctor MR. AKINYEMI

  1. Defences:
    • Statue of Limitation MR. AKINYEMI
    Generally, the limitation period for actions in contract or tort is six years, except for actions in tort for personal injuries, where the period tends to be shorter – two or three years, depending on the legislation. The reason for this disparity in limitation periods has been identified as resting on the fact that victims of personal injury need to be compensated within a reasonable time, but this is scarcely a sound justification for curtailing the right of action of victims of personal injuries by such a short limitation period.
    3 years
  2. The need for capacity building amongst Lawyers MESSERS. MUOKA, AKINYEMI & OLAYIWOLE Tobi JSC did go on, however, to make the following important obiter dictum: “Let me take the opportunity to say one last word on the quality of surgical needles. The [doctor], a Consultant, said under cross- examination that a surgical needle is not a strong tool. It breaks or snaps easily. This worries me. It is sad that an instrument for operation of (sic) the human being is not strong enough that ‘It breaks or snaps easily’. It is surprising that an instrument which goes into a human body is not strong enough. I seem to be repeating myself and I have no apologies for that. I think something must be done and very urgently. The medical profession must invent surgical needles that will stand the test of time to ensure that they do not ‘break or snap easily’.”687

The judge in Bolitho reasoned that:

‘It is not enough for a defendant to call a number of doctors to say that what he had done or not done was in accord with accepted clinical practice. It is necessary for the judge to consider that evidence and [to] decide whether that clinical practice puts that patient unnecessarily at risk”.

Concluded

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