Due to the low level of public enlightenment in Nigeria as to the rights of
victims in the event of medical negligence and other professional misconducts,
and sometimes because of religious or other social sentiments or prejudices,
victims of medical negligence and other professional malpractice seldom
institute actions in court for redress.   There is therefore a dearth
of reported cases emanating from Nigerian courts.  There has however been
a steady rise in complaints received by the investigating arms of the various
professional regulatory bodies which upon establishment of prima facie cases
are often charged before the disciplinary organs of the bodies.  An
appreciable number of decisions of the disciplinary organs like the Medical and
Dental Practitioners Disciplinary Tribunal end up in the appellate courts.

Applying the neighbourhood test, there is no gainsaying the fact that the
doctor or any other health professional in a health facility is a very close
neighbour of the patient who presents in the  health facility, to whom the
doctor and other health personnel  owes a duty of care.  This is
quite apart from the contractual obligation between the patient and the owner
of the health facility, who in many cases in Nigeria, is the doctor himself.

Civil and professional negligence are species of the tort of Negligence,
although each of them attracts different results.    Damages
will normally be awarded in favour of the victim of the negligence (or his/her
survivors, heirs or legal personal representatives if the victim is deceased)
against a tortfeasor in the case of civil negligence, whereas a medical or
health personnel adjudged to be guilty of professional negligence would usually
be sanctioned by the appropriate disciplinary organ as laid down in the enabling
statute.  The sanction could be admonition, suspension of the practitioner
from the practice of the profession for a specified time or removal or erasure
of the practitioner’s name from the professional register, that is to say,
prohibiting the professional from the practice of the profession.

It is therefore convenient to use instances of what constitute professional
negligence listed in the Code of Medical Ethics in Nigeria 2008 as templates to
illustrate medical negligence


Rule 29.4 of the Code outlines examples of what acts or omissions
constitute professional negligence as follows:-

Failure to attend promptly to a patient requiring urgent
attention when the practitioner was in a position to do so;

Manifesting incompetence in the assessment of a patient;

Making an incorrect diagnosis particularly when the
clinical features were so glaring that no reasonable skillful 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, or function;

Failure to obtain the informed consent of the patient
before proceeding on any surgical procedure or course of treatment when such
consent was necessary;

Making a mistake in treatment e.g. amputation of the
wrong limb, carelessness that results in the termination of a pregnancy,
prescribing the wrong drug, or dosage 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 appropriate comments in the case notes of the
practitioner’s observations and prescribed treatment during such visits. It
also includes failure to communicate with the patient or with his relatives as
may be necessary with regards to any developments, progress or prognosis in the
patient’s condition. 

The victim of Medical Negligence has a number of options for redress; he
may pursue civil claims against physicians or other health care providers for
alleged “torts”, that is, breaches of duty that result in personal injury, or
file a complaint with the regulatory body (e.g. the Medical and Dental Council
of Nigeria). He could also report to the Police who would conduct Criminal
Investigation and where the investigation reveals gross negligence,
recklessness or wanton disregard for life of the victim, the police can
prosecute or forward the case file to the office of the Attorney General of the
State for possible prosecution in deserving cases.

The tort of negligence is defined as the omission or failure to do
something which a reasonable and prudent man would do or doing something which
a reasonable and prudent man would not do.  Negligence is the failure to
exercise that care which the circumstances demand, i.e. absence of care
according to the circumstances.  See Ojo v. Gharoro  (2006)
10 NWLR (pt.987) 173 @ 234(F-H).
  It is also defined broadly as
the breach of a legal duty to take care, which breach results in damage
undesired by the defendant to the plaintiff.

The tort has three elements, viz:-

A duty of care owed by the defendant to the plaintiff.

Breach of that duty by the defendant.

Damage to the plaintiff resulting from the breach.


To establish the existence of a duty of care, the law has laid down the
foreseeability test in the popular case of Donoghue v. Stevenson
 (1932) AC 592
   In that case, Lord Atkin
formulated  the Neighbourhood  principle, which enjoins that a person
–“must take reasonable care to avoid acts or omission which you can reasonably
foresee would be likely to injure your neighbour”. My neighbours are “persons
who are so closely and directly affected by my acts that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind to
the acts or omission which are called in question”.

Nursing staff, like medical practitioners, owe a duty of care to the
patients in their care, although decided cases on nurses liability for
negligence are relatively few. But this principle, as applied to medical
practitioners has been applied to Nurses in those few cases. A nurse must
attain the standard of competence and skill to be expected from a person
holding the post. It has also been held that a midwife delivering a child must
display the skill of a registered midwife and it is not enough that she
attained the standard of the ordinary registered nurse with minimal obstetric

As regards Pharmacists, the cases have established that the standard of
care demanded of them is high reflecting their status and their position as
having the “last opportunity” to safeguard a patient from a dangerous drug. A
Pharmacist does not discharge his duty by dispensing as written on the
prescription presented to him. He should recognize and check with the Doctor
where a dangerous dosage of a drug is prescribed21.


The victim of a tort which occurs in the course of the torfeasor’s
employment can sue the employer for that tort on the basis of the principle of
vicarious liability.  Because of the age along distinction between
contract of service and contract for services, it was thought that this
latitude would not be extended to victims of negligent acts or omission of
consultant surgeons and physicians, these being persons with considerable
degree of independent judgment, who are virtually free from the control of the
Hospital authorities.  The celebrated hospital cases have long exploded
that erroneous belief.  Today, Hospital authorities are vicariously liable
for the negligence of their employees be they nurses, physiotherapists,
pharmacists, laboratory technologists or even senior consultants.

The only exception is where the consultant does not act as the employee of
the hospital or clinic as, for example, where the patient contracts privately
with a consultant for necessary treatment or surgery and then contracts
separately with the hospital or clinic for nursing and ancillary care. 
The usual problem in such an instance is that of establishing whether any
negligence was the fault of the Consultant or that of the hospital staff. 
In Roe v Ministry of Health (1954) QB 66   it was held
that if one or two persons must have been negligent, they cannot both defeat
the Plaintiff by silence or blaming each other.

In the same vein, the mere fact that the medical practitioner or consultant
is a part-time employee over whom the Hospital authority has limited power as
in the case of the consultants in the Teaching Hospitals in Nigeria who are
permanent employees of the Universities, rendering clinical services to these
institutions for a stipend called clinical supplementation is not enough to
ground a waiver of vicarious liability of the Hospital authority.  In the
case of Cassidy v Ministry of Health(1951) 2 QB 343 the
English Court of Appeal stated that the relevant consideration in such a
situation is whether the Doctor was engaged for the purpose of the treatment by
the Hospital authority or by the patient.  If the patient did not engage
the Doctor by himself and consequently did not pay him his fee directly, such a
Doctor must still be regarded as an employee of the Hospital authority for
whose tort the Hospital authority must be vicariously liable.  It follows
that there is no clear-cut distinction between full-time and part-time

The correct position will therefore appear to be that once a Hospital
authority has accepted a patient for treatment, it comes under a duty to treat
the patient with reasonable care and skill and any breach of that duty is
actionable regardless of who may be responsible for that breach.


The Medical Profession in Nigeria is regulated by the Medical and Dental
Council of Nigeria (MDCN). The MDCN in furtherance of its statutory functions
as provided for in Section 1 (2)(c) of the Medical and Dental Practitioners Act
(MDPA), Cap M8 , LFN 2004, codified the rules of professional conduct for
Medical and Dental Practitioners in its Code of Medical of Ethics in Nigeria
(2008). There are two organs responsible for the discipline of Medical and
Dental practitioners.

 Section 15(3) of the Medical and Dental Practitioners Act establishes
the Medical and Dental Practitioners Investigation Panel (“The Investigation
Panel”) which is saddled with the responsibility of conducting preliminary
investigation into any case where it is alleged that a registered person has
misbehaved in his capacity as a medical practitioner or dental surgeon amongst
other functions. The Investigation panel after investigation will determine
whether or not a prima facie case has been established against the
practitioner. If a prima facie case is established against the practitioner,
the Investigation Panel will frame a charge against him before the Medical and
Dental Practitioners Disciplinary Tribunal (“the Disciplinary Tribunal”)

The Disciplinary Tribunal established by section 15(1) of the MDPA is
charged with the duty of considering and determining any case referred to it by
the investigation panel. Where the Disciplinary Panel finds a practitioner
guilty of in-famous conduct in any professional respect, in line with the
provisions of section 16(2) of the MDPA, the Disciplinary Tribunal may order
the Registrar to strike the person’s name off the register; or suspend the
person from practice by ordering him not to engage as medical practitioner or
dental surgeon for a period not exceeding six months; or admonish the
practitioner. The drawback however, is that the provision for suspension was
pegged at six months, it would have been better if it was made flexible because
some offences are not grave enough to attract  striking out the practitioner’s
name from the register but deserve more than six months suspension.


Criminal law does not generally punish negligence. This is because section
24 of the Criminal Code says that no person can be criminally responsible for
his unwilled acts or omission or even the accidental consequence of his willed
acts. But that section is subject to the express provisions of the Code
relating to negligent acts or omission.

Where medical treatment results in the patient’s death in consequence of
the gross negligence of the Medical Doctor, a charge may be sustained against
him for manslaughter as was the case in R   v. 
Akerele  (1941)
where a Medical Practitioner who applied overdose
of sobita on a number of children which led to their death was held (by WACA,
although later reversed by the Privy Council on technical ground) to have been
criminally negligent and accordingly convicted for manslaughter. This is
because under s.303 of the Code, every person, except in case of necessity,
undertakes to administer surgical or medical treatment has a duty to have
reasonable skill and to use reasonable care in administering the treatment and
if any negative consequence results to the life or health of the patient as a
result of his breach of this duty, he is held to have caused such consequence.
However, because negligently causing death is the crime of manslaughter, such a
doctor will be found guilty of manslaughter.

His possible defences though are contained in Sections 297 and 313 of the
Code. Section 297 provides that a person is not criminally responsible for
performing in good faith and with reasonable care and skill a surgical
operation upon any person for his benefit, if the performance of the operation
is reasonable having regard to the patient’s state at the time and to all
circumstances of the case. Section 313 makes the original assailant and not the
Medical Practitioner responsible even if death of the victim results from the
treatment, provided the treatment was reasonably proper under the circumstances
and was applied in good faith.

The criminal liability of a medical practitioner who has exhibited gross
negligence in the management of a patient now enjoys universal
acceptance.  The case of Dr. Conrad Murray, Michael Jackson’s personal
physician, who was found guilty of involuntary manslaughter  i.e. criminal
negligence, is a case in point.  It was established during trial that Dr.
Murray administered a lethal dose of anesthetic profonol on Michael Jackson in his
house and left him without medical supervision.   The Court described
Dr. Murray’s conduct as reckless and he was sentenced to two years imprisonment

In Nigeria, one of the grounds for the discipline of a medical or dental
practitioner is conviction by a court which has the power to impose
imprisonment for an offence (whether or not an offence punishable with
imprisonment) which in the opinion of the Disciplinary Tribunal is incompatible
with the status of a medical practitioner or a dental surgeon as the case may.
See Section. 16(1) Medical and Dental Practitrioners Act, Cap.M8 LFN

Other offences which could make a Medical Practitioner liable during his
course of duty once the elements of the offences are proved are abortion,
adultery (in the north), rape, murder and manslaughter.

One question that would agitate the mind of a legal practitioner who
represents a medical or dental practitioner facing a charge for medical
negligence before the Disciplinary Tribunal is whether prosecution of a
practitioner before the Disciplinary Tribunal can be pursued simultaneously
with civil claim for damages in the courts.

Quite often, parties to a complaint of professional misconduct also proceed
to court in respect of the same subject matter.  Sometime, the complainant
proceeds to court to claim damages for the negligence, while also laying a
complaint before the Medical and Dental Practitioners Investigating
Panel.  Sometime also the practitioner complained against proceeds to
court seeking a restraining order against either the complainant or the
Tribunal. The question is whether the civil claim in the courts can be a bar to
an investigation by the Investigating Panel, or trial by the Disciplinary

Ordinarily, the complainant would be at an advantage to await the result of
professional disciplinary action before proceeding to the civil court for
claims for damages.  But as it happens quite often, due largely to a
period of interregnum between the dissolution of one Council and the
composition of another, complaints before the disciplinary organs of the
professional bodies last much longer than three years before they are
resolved.   Of course after a period of three years, a claim based on
negligence would in most jurisdictions be caught by limitation.

On the other hand, some counsel argue that once a Suit has been instituted
in the High Court on the same subject matter, the matter becomes sub judice 
such that no investigation by the Investigating Panel or trial by the
Disciplinary Tribunal ought to proceed.  If the position taken by Counsel
who so argue were to be correct, such cases would linger for a very long time
as to lose their deterrent value, or even discourage the complainant from
further pursuing the matter.

The matter is more straight forward where criminal prosecution is
instituted against the practitioner because conviction by the court is by
itself a ground for the Disciplinary Tribunal exercising disciplinary action
against the practitioner.


The essence of this article is to draw the attention of the public to
incidences of medical negligence and professional malpractice with particular
reference to the current approach in tackling these in Nigeria.

It is believed that with more enlightenment on the part of Nigerian
citizens and residents as to their right against unfair treatment by medical
institutions and practitioners, many cases will spring up in the regular courts
in addition to complaints being lodged with the professional regulatory bodies.
This will ensure that medical personnel are more careful while carrying out
their duties.

Ahmed Adetola-Kazeem is a Counsel at Gani Adetola-Kaseem

Editor’s notes: this post was originally published on