When to file medical malpractice and litigation:
Learning when to file medical malpractice and negligence litigation is essential for success of such actions. The knowledge will save you cost of unnecessary civil litigation on one hand and ensure you get justice for your grievance.
Medical malpractice and negligence litigation usually arises as a result of a perceived fault of a Medical Practitioner. The failure by a medical practitioner to exercise a reasonable degree of skill and care in the discharge of his duties is actionable in law. The relationship between a doctor and a patient is fiduciary, that is, a relationship in which one person is under a duty to act for the benefit of another on matters within the scope of the relationship. You can liken it to a producer-consumer relationship. From this perspective, the law expects a producer (the doctor) to exercise reasonable care and skill in the discharge of his duties to the consumer (the patient). The level of care and skill required is that of a reasonable prudent person.
However, liability will attach on a doctor that breaches his duties. Criminal liability can also apply against a doctor depending on the extent of the breach. The law on medical malpractice provides an injured patient with the right cause of action on every occasion where he suffers any harm from a medical practitioner’s malpractice or negligence.
Section 15 of the Mental and Dental Practitioners Act, Cap M8, LFN, 2004, provides for the establishment of the Mental and Dental Practitioners Disciplinary Tribunal. It is responsible for the maintenance of the ethics of medical practitioners. The Mental and Dental Practitioners Act also established the Mental and Dental Practitioners investigation panel. It is responsible for investigating alleged negligence. It determines whether a Medical practitioner should be subject to proceedings of the tribunal.
PRINCIPLES OF MEDICAL MALPRACTICE
Medical malpractice litigation in Nigeria operates on two (2) basic principles which creates liability for medical practitioners, thus:
a) Treatment without the consent of the patient;
b) Treatment without proper care and skill.
TREATMENT WITHOUT THE CONSENT OF THE PATIENT.
Where a patient does not consent to a treatment and the medical practitioner goes ahead to do so, without a Court order, it amounts to medical malpractice. If the action results in the death of the patient, he maybe charged for murder or manslaughter. However, a charge for murder is usually rare due to the nature of a Medical Practitioner’s work. A charge for manslaughter is more plausible.
TREATMENT WITHOUT PROPER CARE AND SKILL.
This cause of action is based on medical negligence. Medical negligence remains the most common basis for liability in medical malpractice. By the provisions of Rule 28 of the Rules of Professional Conduct for Medical and Dental Practitioners, 2004 currently referred to as Code on Medical Ethics in Nigeria (aside: insert external link here), a registered practitioner who fails to exercise the skill or act with the degree of care expected of his experience and status in the process of attending to a patient is liable for professional negligence.
WHAT CONSTITUTES PEOFESSIONAL NEGLIGENCE
1. Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so.
2. Manifestation of incompetence in the assessment of a patient.
3. Making an incorrect diagnosis, particularly when the clinical features were so glaring that no reasonable skillful practitioner could have failed to notice them.
4. Proffering wrong or no advice as to the risk involved in a particular type of treatment, especially such that may lead to deformity or organ loss.
5. Not obtaining patient’s consent (informed or otherwise) prior to surgery or course treatment, especially where necessary.
6. Making mistake in treatment e.g. amputation of the wrong limb, inadvertent termination of pregnancy, etc.
7. Failure to refer or transfer a patient in good time when such a referral or transfer was necessary.
8. Failure to do anything that ought to have been done for the good of the patient.
9. Failure to see a patient as often as his medical condition warrants or to make proper notes of the practitioner’s observations and prescribed treatments during such visits or to communicate with the patient or his relation, as may be necessary, with regards to any developments, progress or prognosis in the patient’s condition.
PROOF OF MEDICAL NEGLIGENCE
Litigation based on medical negligence requires proof of gross negligence to succeed. However, the rule as to proof of negligence as stipulated in the locus classicus Donoghue v Stevenson still applies.
A patient must prove the following:
Duty of Care
The victim must prove that the Medical Practitioner owes him a duty of care. He does not need to prove contractual relation. He must not prove payment of fee to the doctor. Once a medical practitioner undertakes to accept to treat, he is under a duty to exercise reasonable care and skill in the discharge of his duties.
Standard of Care
Also, the victim must prove that the medical Practitioner did not exercise the required standard of care. In the context of medical malpractice litigation in Nigeria, the standard of care required is that of a reasonable medical practitioner in the position of the defendant (the doctor). The Bolam Test applies to ascertain the standard of care required in any given circumstance. This originated from Bolam v Friern Hospital Management Committee (1957) 2 All ER 118 @ 121.
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular act… Putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some technique if it has been proved to be contrary to what is really substantial the whole of informed medical opinion. Otherwise, you might get men today saying: I don’t believe in anaesthetics. I don’t believe in antiseptics. I am going to continue to do mu surgery in the way it was done in the eighteenth century. That, clearly, would be wrong.”
However, a Medical Practitioner claiming to have specialist or expert skills will have a higher standard of care and skill required of him.
Breach of Duty
A victim must also prove the breach of the alleged duty owed to him by the Medical Practitioner. However, a medical practitioner is not negligent in his duties if he administers a drug which, contrary to ordinary experience, reacts disastrously on the patient. There must be proof that there was a breach of duty by the medical practitioner. There must also be proof of causation. That is to say that the patient must prove that there is a direct nexus between the alleged negligence on the part of the Medical Practitioner and the resulting damages. Damages will not be awarded where the injury sustained by the victim is remote.
ALLOCATING LIABILITY IN MEDICAL MALPRACTICE LITIGATION
Upon proof of negligence, the issue of who is to bear liability would arise. Generally, an employer who stands in the position of authority is vicariously liable for the wrong of his employee. In Medical malpractice litigation in Nigeria and the rest of the world, a specialist medical practitioner is responsible for his actions and omissions. Doctors a held liable for negligence of their staff. Medical practitioners who are staff of a hospital can have their liability thrown on the hospital. However, a hospital is held vicariously liable if it is proved that:
1. The person who commits the negligent act is an employee of the hospital.
2. The act is performed in the course and scope of his employment.
REMEDIES AVAILABLE FOR MEDICAL MALPRACTICE.
A person who alleges malpractice against a medical practitioner may bring an action based on a breach of contract or under negligence. However, under this heading, court can order damages, specific performance, an order of rescission or any other remedy to a victim who succeeds in his claim, with the exclusion of imprisonment or capital punishment.
Again, such victim of Medical malpractice may have a remedy under criminal law, depending on the nature of the allegation. A crime is a direct breach of the law and attracts a more severe punishment than in civil litigation. Damages are not awarded in this situation. Where the alleged crime is proved, the Court may make an order pursuant to the statutory provisions in respect of such crime.
THE MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL
The Medical and Dental Practitioners Disciplinary Tribunal and the Medical and Dental Practitioners Investigation Panel are bodies established by the Medical and Dental Practitioners Act. They maintain the ethics of the profession and investigate any alleged negligence by Medical Practitioners. A victim may approach any of these bodies for investigation and subsequent punishment of any allegation of negligence. A Medical Practitioner found liable by the tribunal for professional negligence may be subjected to the erasure of his name from the professional register, suspension of practice or admonition. The level of punishment is dependent on the severity and frequency of the negligent acts.
Most medical malpractice allegations never make it to Court. This is because of many factors. The victim may decide to abandon his claim because of lack of funds or for fear of the prolonged process of getting judgment in Court. The victim may also decide to reach a settlement of the issue with the Medical Practitioner.
Nevertheless, it is important that these laws exist for the punishment of offenders. Medical malpractice litigation is important because Medical Practitioners deal directly with the lives of people. They ought to be held accountable for their actions and omissions.