An article on medical law in Nigeria, legal framework on medical negligence in nigeria, proof of medical negligence in nigeria, laws regulating medical negligence in Nigeria, legal aspects of medical practice in Nigeria, proof of medical negligence in nigeria, duty-of-care and its implications to the medical profession in Nigeria, what is required to prove medical negligence?, what is medical negligence and do I have a claim?
The Nigerian Bar Association (NBA) in its recently held Annual General Conference aimed to answer these queries below…
MEDICAL LAW
Medical law can be defined as the body of law concerning the rights and responsibilities of medical professional and their patients. The laws regulating the profession are wide but we will mention a few.
1. The Constitution of the Federal Republic of Nigeria (1999) as amended
2. African Charter on Human and People Rights Act. Dental Therapists (Registration, Etc) Act
3. Medical Rehabilitation Therapists (Registration, Etc) Act
4. Medical and Dental Practitioners Act.
REGULATION
Section 5 of the Medical and Dental Practitioners Act Cap 221, Laws of the Federation of Nigeria, (1990) states that the Medical and Dental Practitioners Act is the primary law that regulates the medical profession in Nigeria. Medical Practitioners in Nigeria owe allegiance to the Medical and Dental Council of Nigeria and the Nigeria Medical Association.
Medical law has been in practice in Nigeria for quite a while but it is yet to gain the prominence it has in other jurisdictions like America, United Kingdom, India, etc. Now we all know about the issues which plague the health sector in Nigeria – underfunded and under- staffed hospitals, unpaid doctors, intermittent power supply…the list is probably endless.
Those are facts which any honest Nigerian would agree are true, the vast majority of our hospitals face these issues.
WHEN THERE IS NEGLIGENCE,
You should get a lawyer involved, they have the training and the skills to assist you in getting the proper compensation you deserve (if the medical professional has indeed been at fault and was
negligent).
Who can sue and when can you sue?
Generally, only the person who has been a victim of the medical error can sue, however the situation is different if the patient has passed away or the patient is a child. If the patient has passed away, then the next of kin of the patient e.g. husband, wife, parents, children etc can sue for compensation. If a child, it will be the parent or the legal guardian of the child.
Proof of medical negligence
To prove medical negligence, the patient must show the following:
– That a doctor-patient relationship exists with the medical practitioner you are suing.
– This can be proved where the patient consulted with the medical practitioner in the clinic.
– The medical practitioner was negligent in a way that caused harm to the patient. You must be able to show that a competent medical practitioner with the same skills will not have caused such harm. The “Reasonable man” test is used to determine the negligence of a doctor, it is determined by what a fellow doctor with the same skills will do in that case.
– The patient also has to prove that the medical
practitioner’s negligence caused the injury or harm the patient is suffering from. For the patient to prove that, he needs expert testimony from a medical practitioner with the same skills stating
that he will not have acted in such an incompetent manner.
– The patient has to prove specific damages caused by the injury inflicted by the medical practitioner.
Types of Medical negligence
The following are examples of medical malpractices – misdiagnoses, delayed diagnoses, failure to treat, surgical errors, birth injury, medical product liability that is when a medical product used by a patient is defective.
How long do you have to make a claim and how much compensation can you receive?
You have a period of three years to make a claim for compensation and this time period runs from the date when you first received the negligent treatment complained of or the date on which you first discovered that the treatment was negligent.
DEFINITION OF TERMS
MEDICAL MALPRACTICE
Medical malpractice occurs when a medical
practitioner causes harm to a patient and fails to
competently perform his or her medical duties. Doctors, nurses and other healthcare workers treat millions of Nigerians every day, either privately or in the public hospitals. Unfortunately, when you or a loved one has suffered a complication due to medical error, the situation can turn bad pretty quickly
CONFLICTS
Examples of some scenarios that we have
unfortunately heard about is when people go into the hospital and are misdiagnosed, or when they are diagnosed properly but given the wrong medication, or when they are operated on and foreign objects are left in the body of patient…the list is endless. When this occurs, then you should know that you can sue the hospital or medical professional for negligence and claim compensation.
MEDICAL DUTY OF CARE
Doctors, nurses, dentists, opticians and all other medical professionals owe what is legally known as a duty of care towards their patients. When this duty is breached and the patient suffers some damage then it gives rise to a potential claim for compensation.
SUBJECTIVITY/OBJECTIVITY
It is important to note at this point however, that the law does not require the medical professionals to be perfect every time they carry out their job, 100% perfection is not humanly possible. What the law requires is that the medical professional must exercise a reasonable standard of care from them.
So, if a doctor, nurse or other health professional treats you with reasonable care then you will probably not have a claim for compensation. If the treatment you received was not of a reasonable standard and this caused your injury, then you may have a claim.
LIBERTY TO PRESS CLAIM
Every case is individual with varying factors to be taken into account, so if you think you may have a claim then it is very important that you speak to a lawyer and they will be able to consider the law and
advise you accordingly.
PERIOD TO SUE
As mentioned above, you can sue when there has been an act of medical negligence, the critical thing though is that if you are suing for compensation, the claimant (the person suing) must have suffered some harm as a result of the negligence of the act being complained about.
SCOPE OF SUIT
For instance, you could sue a doctor for negligence in misdiagnosing an illness, however if for instance a person is misdiagnosed for illness A, when he has illness B, and then prescribed medication which he takes, and the medication cures illness B, he or she will be unable to sue for negligence in the misdiagnosis because he has not really suffered any actual damage from the misdiagnosis (although the person could report the doctor to its regulatory body).
STATUTE TIMING
As each case is individual, the amount of compensation awarded will vary from claim to
claim. However, there are certain things the court will consider when deciding the amount of compensation a claimant would be entitled to, this includes factors such as a person’s age, severity of injury, employment status and associated losses caused as a result of the treatment etc.
Conclusion
Doctors, nurses, dentists, opticians and all other medical professionals owe what is legally known as a duty of care towards their patients. When this duty is breached and the patient suffers some damage then it gives rise to a potential claim for compensation.
Source: Deborah Majekodunmi Esq.
(Gave this lecture at Nigerian Bar Association (NBA) 2019 Annual General Conference themed: “MEDICAL NEGLIGENCE: TIME TO CHANGE THE NARRATIVE”).
