How To Sue For Medical Negligence in Nigeria

The Medical and Dental Practitioners Act (the Act) 2004 is the principal law regulating the medical profession in Nigeria. This Act established the Medical and Dental Council of Nigeria (MDCN), which provides for the registration of medical and dental practitioners. The MDCN in furtherance of its statutory function as provided by the Act codified the rules of professional conduct for medical and dental practitioners in its Code of Medical Ethics in Nigeria, 2008. This code lays down the standard of acceptable medical and dental practice in Nigeria.

The Act also established the Medical and Dental Practitioners Investigating Panel (the Panel) and the Medical and Dental Practitioners Disciplinary Tribunal (the Tribunal). The Panel is charged with carrying out preliminary investigations of any allegation of infamous conduct in professional respect made against a medical practitioner, and where such allegations have merit, the Panel forwards the case to the Tribunal for trial.

LIABILITY OF MEDICAL NEGLIGENCE

In circumstances where the medical practitioner fails to perform his duty as required, the issue of liability would arise. The victims of medical negligence can make a complaint under criminal law, or institute an action for a civil wrong or follow the complaint procedure provided by the Act.

Criminal Liability in Medical Negligence

A victim can seek redress for medical negligence under criminal law in the gravest of circumstances. Where the extent of the negligence had been such that it resulted in permanent disability or death of the patient, then the practitioner will be guilty of gross negligence which can amount to a crime against the State. And where such breach of duty of care results in the death of a patient, a medical practitioner can be liable for manslaughter.

Furthermore, there are other offenses a medical practitioner can also be liable for during his course of duty depending on the nature of his/her actions. Section 343 (1) (e) of the criminal code provides that:

“Any person who in the manner so rash or negligent as to endanger human life or to be likely to cause harm to any other person giving medical or surgical treatment to any person whom he has undertaken to treat is guilty of misdemeanour and is liable to imprisonment for one year”

Civil Liability Medical Negligence

The degree of negligence, which gives rise to civil action must be that of ordinary tortious negligence. This can be proved where all elements of the three tests exist, which are: That the medical practitioner owed a duty of care to the patient; the duty of care was breached; and as a direct consequence of the breach, the patient suffered damages. Also, the onus of proof lies with the claimant who must call evidence to show negligence on the part of the medical practitioner.

Commencing a civil action for negligence may give rise to vicarious liability. In circumstances where hospital staff is negligent in the performance of their duties, the hospital may be held to be vicariously liable. This is based on the general principle that an employer is liable for the act of its employee in the course of his employment.

Complaint filed with the Medical and Dental Council of Nigeria

As earlier stated, the medical profession in Nigeria is regulated by the MDCN and there are disciplinary bodies including the Panel and the Tribunal. The Panel is charged with carrying out preliminary investigations of any allegation of infamous conduct in professional respect made against a medical practitioner, and where such allegations have merits, the Panel forwards the case to the Tribunal for trial. Further to this, the Tribunal has the power to do three things when the medical practitioner is found guilty of infamous conduct in any professional respect, in line with the provision of Section 16(2) of the Act, the Tribunal can:

1. Strike the person’s name off the registrar;
2. Suspend a doctor’s license for a period not exceeding six months;
3. Admonish a doctor.

It is noteworthy that a medical practitioner has a right to appeal to the court of appeal against the decision of the Tribunal. Also, the professional responsibility of the medical practitioner does not exempt him or her from either criminal or civil liability. Hence, a doctor who breaches his duty of care may be liable to face disciplinary actions before the Tribunal, as well as face criminal actions where the case warrants it or a civil lawsuit.

CONCLUSION

It is important to note that not every action or omission by a medical practitioner will lead to medical negligence, each case would depend on its peculiarity.

Furthermore, an action for medical negligence requires stricter proof, however, any medical malpractices or errors, which may fall short of being proved as medical negligence may be instituted as an action for a breach of fiduciary relationship or contract, or be instituted as an action for the enforcement of fundamental human rights under the principle of patient’s autonomy due to a failure to duly inform the clients on all the available treatment options.