Introduction
The doctor-patient relationship is established where a person in need of medical attention seeks the services of a physician who accepts to diagnose, advise or treat the person. In Nigeria, there are ethical and legal duties owed by physicians and corresponding rights available to patients. Consequently, where a physician fails to carry out these duties, negligence maybe established. This Article aims at identifying the rights of patients, liabilities of medical practitioners and remedies available to affected patients or victims.
Rights of Patients
The rights of patients are captured in Chapter IV of the Constitution of the Federal Republic of Nigeria (CFRN). Particularly, Sections 33, 34 and 35 of the CFRN which provides for the right to life, the right to dignity of human person and the right to personal liberty respectively. In a bid to have specific laws that focuses on the rights of patients, the Vice President Yemi Osinbanjo, SAN launched the Nigerian Patients’ Bill of Rights[1] which is a combination of rights derived from the Consumer Protection Council Act, Freedom of Information Act, National Health Act among others. These rights are as follows;
- Right to full and accurate information on diagnosis, treatment and to participate in treatment procedures.
- Right to privacy and confidentiality of all information and medical records unless disclosure is vital and in the interest of public health in accordance with prevailing laws.
- Right to access to clean, safe and secure healthcare environment and to an equitable quality care.
- Right to be treated with respect and dignity without prejudice to gender, religion, race, ethnicity, allegation of crimes, geographic allocation disability or socio-economic circumstances.
- Right to urgent, immediate and sufficient intervention and care in the event of an emergency, prioritizing such needed attention over other factors including cost and payment as well as law enforcement requirements.
- Right to receive visitors.
- Right to decline care upon full disclosure of the consequences of such decisions.
- Right to be informed about impending interruption or disengagement of services of primary or attending professional responsible for patient’s care.
It is noteworthy that these rights are accompanied by corresponding responsibilities of patients. Patients are required to disclose their medical history to the healthcare provider, promptly pay all bills, enquire on the qualifications and services of the healthcare provider and comply with the rules and regulations of the facility, among others.
Duties of Medical Practitioners
The medical doctor in Nigeria has several duties that are encapsulated in the Medical and Dental Practitioners Act[2], Rules of Professional Conduct for Medical and Dental Practitioners, National Health Act[3] and the Hippocratic Oaths sworn by doctors at induction into the medical profession. The following are among the numerous duties;
- A health care provider, worker or establishment shall not refuse a person emergency medical treatment for any reason[4]. A contravention of this duty attracts a fine or an imprisonment for a period of six months or both.[5]
- A health care provider shall give a patient relevant information in relation to treatment, diagnostic procedure, and explain the risk to patient for refusal.[6]
- Duty to set up control measures to prevent unauthorized access to patient’s medical records.[7]
- Deliver care that minimizes risk and harm to patients, including preventable injury.[8]
- Seek the patient’s consent to disclose any information.
- Maintenance of confidentiality during consultation.
- A physician shall preserve absolute confidentiality on all he knows about his patient even after the patient has died.
- A physician shall owe his patients complete loyalty and all the resources of his science. Whenever an examination or treatment is beyond the physician’s capacity, he should summon another physician who has the necessary ability.[9]
What is medical negligence?
Medical negligence is the failure by a medical practitioner to exercise a reasonable degree of care that falls below the standard of a prudent skillful medical professional or accepted medical practice.[10] It occurs where a medical professional acts or fails to act in a manner that is below the standard of care expected of his experience or accepted within the medical community and such act or omission must have resulted in damages.
What constitute medical negligence?
Rule 28 of the Rules of Professional Conduct for Medical and Dental Practitioners[11] (also known as Code of Medical Ethics) has made provisions for the actions that constitute medical negligence in Nigeria and there are as follows;
- Failure to attend promptly to a patient requiring urgent attention when the practitioner was in a position to do so.
- Manifestation of incompetence in the assessment of a patient.
- Making an incorrect diagnosis particularly when the clinical features were so glaring that no reasonable skilful practitioner could have failed to notice them.
- Failure to advise, or proffering wrong advice to, a patient on the risk involved in a particular operation or course of treatment, especially if such an operation or course of treatment is likely to result-in serious side effects like deformity or loss of organ.
- Failure to obtain the consent of the patient (informed or otherwise) before proceeding on any surgical procedure or course of treatment, when such a consent was necessary.
- Making a mistake in treatment for example, amputation of the wrong limb, inadvertent termination of a pregnancy, prescribing the wrong drug in error for a correctly diagnosed ailment, etc.
- Failure to refer or transfer a patient in good time when such a referral or transfer was necessary.
- Failure to do anything that ought reasonably to have been done under any circumstance for the good of the patient.
- Failure to see a patient as often as his medical condition warrants or to make proper notes of the practitioner’s observations and prescribed treatment during such visits or to communicate with the patient or his relation as may be necessary with regards to any developments, progress or prognosis in the patient’s condition.
Actions against medical negligence
The law has provided several actions an aggrieved patient may take against a medical practitioner who fails to carry out his duties towards the patient and they are as follows;
Civil Action
Where the patient opts to institute a civil suit, it lies on him to prove a case of negligence and there are elements which must exist in establishing a tort of medical negligence. The court has held in First Bank Nigeria Plc v Banjo[12] that the patient must prove the doctor owed him a duty of care, the duty of care was breached by the doctor and the breach resulted in damage to the patient.
However, it is worthy of note that the proof of these elements is stricter in cases of medical negligence as the plaintiff must prove that the act or omission of the defendant falls short of the standard of a reasonable and skillful medical practitioner.[13]
Also, a health care establishment may be held liable for the act or omission of its staff by virtue of vicarious liability where the staff has been found negligent during the course of their duties.[14]
Furthermore, it is paramount that actions for damages for negligence must be instituted within the time allowed under the applicable limitation of actions laws and failure to do so will extinguish the right of an aggrieved person to institute a civil action. In Abuja, an action may be brought before the Court within a period of three (3) years of the occurrence of the negligent act.[15] Compensation is usually awarded by the court and the amount may differ depending on severity of the damage caused.
Investigation Panel and Disciplinary Tribunal
A victim may elect to file a complaint against a registered practitioner to the Medical and Dental Council of Nigeria.[16] Once a complaint is filed, an investigation Panel would conduct its preliminary investigation and may make an order of interim suspension from the medical or dental profession against the registered practitioner. Further to this, the Panel will refer the matter to the Disciplinary Tribunal for accelerated hearing[17].
Where the Tribunal finds the registered practitioner guilty or such person is convicted by a Court of Law in Nigeria, the Tribunal may order the striking out of the person’s name off all relevant register(s) or suspend the person from practicing for a period not exceeding six months or admonish the person.[18]
Alternative Dispute Resolution (ADR)
This is an alternative procedure in settling civil matters instead of the conventional resort to the Court of Law[19]. The ADR method is faster than litigation, therefore, where an aggrieved patient has already suffered damage caused by the negligent act of a medical practitioner, ADR maybe a preferred option.
Furthermore, there are different procedures in ADR which include mediation, negotiation, conciliation, and arbitration. Arbitration may be a preferred method of ADR in settling a medical negligence case where parties submit to an arbitrator or arbitration tribunal who gives a binding and enforceable decision or an award on the case.
Criminal Action
In a case where the negligent act is so grave that it results to death or grievous bodily harm,[20] an aggrieved person may file a report at a Police Station within the jurisdiction where the negligent act occurred and the Police may institute criminal proceedings against the medical practitioner. The applicable law is the Criminal Code that provides that any person who gives medicine or medical or surgical treatment in a rash or negligent manner as to endanger life or likely to cause harm to a person shall be guilty of a misdemeanor.[21]
Conclusion
Negligence is the bane of contemporary legal and ethical issues in the medical field and reports on acts of medical negligence across social media platforms have brought the subject to the reach of more Nigerians. It is important that affected individuals know their rights and they can navigate through the remedies available under the law. However, the major concern is the enforceability of the Patients’ Bill of Right; there are no government agencies saddled with the responsibility of enforcing the Bill neither are there sanctions for violating a patient’s right. In other jurisdictions like the European countries, all patients’ rights have been codified into one dedicated law.[22] It is imperative that the Patients’ Bill of Right is passed into law by Nigerian lawmakers and enforceable by a designated government agency.
REFERENCES
[1] Launched by Vice President Yemi Osinbajo in July 2018
[2] CAP M8 LFN 2004
[3] 2014
[4] Section 20 (1) National Health Act 2014
[5] Section 20(2) National Health Act 2014
[6] Section 23(1) National Health Act 2014
[7] Section 29(1) National Health Act 2014
[8] Patients’ Bill of Rights 2018
[9] Rules of Professional Conduct for Medical & Dental Practitioners 1995
[10] Law Information Institute “Negligence” < https://www.law.cornell.edu/wex/negligence>accessed on 19/04/2022
[11] 1995
[12] (2015) 5 NWLR (Pt 1452) C.A
[13] Miss Felicia Osagiede Ojo v Dr. Gharoro & UBTH Management Board and ors(2006) All FWLR
[14] Dickson Ibokwe v UCH Board of Management (1961) W.N.L.R 173
[15] Section 8(1) Limitation Act LFN 2004, Section 9 Limitation Law of Lagos State 2015
[16] Section 15(2) Medial and Practitioners Act
[17] Section 15(3)(c) Medical and Dental Practitioners Act
[18] Section 16(2) Medical and Dental Practitioners Act
[19] Olusola John Jedgede and Winifred Idiaru “Overview of Alternative Dispute Resolution Process in Nigeria” accessed on May 4, 2022<
[20] Oludamilola Adebola Adejumo “Legal perspectives on liability for medical negligence and malpractices in Nigeria” vol. 35, P. 44 Pan African Medical Journal 2020
[21] R V Akerele Section 343 Criminal Code
[22] Willy Palm, Herman Nys, David Townsend, David Shaw, Timo Clemens and Helmut Brand “Patients’ rights: from recognition to implementation” Cambridge University Press, 10 July 2020. https://www.cambridge.org/core/books/achieving-personcentred-health-systems/patients-rights-from-recognition-to-implementation/5767D25112F3C4079962F6E01A4881DA Accessed on 05/09/2022
Written by Joy Chukwujindu LL.B, BL
jo*@so***********************.com
