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INTRODUCTION

It is not uncommon to see
this quote on a hospital building “We Care, God Heals”.

While the accuracy or
otherwise of that statement is not in contention, it is pertinent to ponder on
how much “care” medical practitioners owe their patients before the healing is
left in the hands of the most Supreme Being. Are Medical Doctors mere tools in
the hands of the creator? So much so that regardless of the magnanimity of
their efforts, high hopes should be kept at bay?


The reality that exists
today is that the average Nigerian, and surprisingly even the above Nigerian
has only a vague knowledge of the existence /or enforceability of the Laws
Governing Medical Negligence in Nigeria.

Do we have to accept every
mishap as the will of God? Is it the will of God that a stage 4 breast cancer
patient is diagnosed of a big and unusual boil until she writhes in pain before
suffering an untimely, painful and perhaps avoidable death? These things are
not news and I could write on about numerous examples while we lament about how
bad our Country is.

This Article however seeks
to equip the average Nigerians with useful information on steps to take in
dealing with health service providers.

DEFINITION
OF MEDICAL NEGLIGENCE
A definition of the term
Medical Negligence is apt at this juncture. Medical negligence can be defined
as improper, unskilled, or negligent treatment of a patient by a physician,
dentist, nurse, pharmacist or other health care professional. * (the free
dictionary by farlex)legal-dictionary.thefreedictionary.com

It is important to note
that whilst medical negligence is generally used in reference to Doctors, other
health care providers such as nurses, pharmacists, laboratory attendants and
any other health care provider can be liable for medical negligence.

WHAT
AMOUNTS TO MEDICAL NEGLIGENCE
The Rules of Professional
Conduct for Medical and Dental Practitioners also known as the Code of Medical
Ethics highlights some instances that would amount to Professional  Negligence. Some of these are:

(A)  Failure
to attend promptly to a patient requiring urgent attention when the
practitioner was in a position to do so.
(B)  Manifestation of incompetence in the
assessment of a patient.

(C)
Making an incorrect diagnosis particularly when the clinical features were so
glaring that no reasonable skillful practitioner could have failed to notice
them. 

(D) 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.

(E)
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.

(F)
Making a mistake in treatment e.g. amputation of the wrong limb, inadvertent
termination of a pregnancy, prescribing the wrong drug in error for a correctly
diagnosed ailment, etc.

(G)
Failure to refer or transfer a patient in good time when such a referral or
transfer was necessary

H)
Failure to do anything that ought reasonably to have been done under any
circumstance for the good of the patient.

(I)
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.
LAWS
GOVERNING MEDICAL ETHICS
There are various laws
governing medical practice in Nigeria and one of such Laws is the Medical and
Dental Practitioners Act (CAP M8) which is designed to regulate and govern
medical ethics in Nigeria and rules of professional conduct for Medical and
Dental Practitioners.  Another one is the
Rules of Professional Conduct for Medical and Dental Practitioners.

Globally, Medical
practitioners are governed by The Hippocratic Oath, ethical guidelines which
are historically taken by physicians summarily pledges to serve humanity to the
best of their ability and without discrimination of any sort and without
breaching patients confidentiality. Another one is the International Code of
Medical Ethics (Declaration of Venice 1983).

Despite all these, it is a
glaring reality that has come to abide with us that poor patient care, lack of
proper diagnosis, unsafe drug options, and limited treatment options are some
of the travails that affect Doctor/Patient relationships.
A
PRACTICAL EXAMPLE
To elucidate further and
put things in perspective, here is an example:
A pregnant woman falls
into labour and is taken to a popular Government Hospital and is informed that
she will have to undergo a caesarean section. 4 hours later, the woman is
referred to another hospital because of the unavailability of the Doctor on duty.
On getting to the referred hospital, the doctor on duty informed the patient
and her husband that there was no bed space. After much pleading, she was
eventually admitted and sedated despite protests from her husband against the
sedatives. The surgery was not carried out until the following day and the
baby, following the operation did not cry after delivery but was breathing and
moving her limbs.

It was discovered several
months down the line that the baby was asphyxiated during birth and the baby
was later diagnosed as suffering from cerebral palsy.

From this example, several
things can be deduced.
i.  The combined lack of adequate efforts of
the various Doctors that were in one way or the other involved in the birth of
that child does not meet the criteria of standard medical practice required.

ii.    It is apparent that there was negligence
during antenatal, delivery and post operative care.

The resulting consequence
of all this is a five year old child suffering from cerebral palsy a condition
which cannot be cured but only managed, bitter parents whose lives have been
altered forever, and a prolonged Trial that may or may not have a favorable
outcome. This is the story of thousands of people with different names,
different facts and different circumstances who have something in common: an
undeniable case of medical negligence and a struggle for their voices to be
heard.

AVAILABLE
OPTIONS
After all is said and
done, what are some of the options that are available to patients?
a.     A
report can be made at the Police Station who can prosecute where investigation
reveals gross negligence or where death has resulted from such negligence.
b. A complaint can be
filed with the Medical and Dental Council of Nigeria for appropriate redress.
The Medical and Dental Practitioners Act provides for an Investigation Tribunal
and where a prima facie case is established; a Disciplinary Tribunal. Thus,
Medical Practitioners who are found guilty of gross negligence are liable to:
(i) Suspension or a period
of six months; or
(ii) Having his name
struck off the medical or dental register, as the case may be.
c.      Patients
can also seek legal redress through a Court of law by filing civil claims for
tortuous liability and a breach of duty of care.
d.    Apart
from Litigation, another option available to patients is exploring other means
of alternative dispute resolution through Arbitration or Mediation. Alternative
Dispute Resolution greatly reduces cost and circumvents lengthy law suits.  The success of law suits is not always
guaranteed due to challenges such as the unwillingness of Doctors to give
expert reports in cases of Medical Negligence, however settlement can be a
preferred and outcome based solution where criminal liability is not involved.  Nonetheless, exploring these options do not
foreclose the patient’s constitutionally guaranteed right to trial.

SUGGESTIONS
It is imperative to state
that it is also advisable to make use of the National Health Insurance Scheme
which was established under the National Health Insurance Scheme Act, CAP N42
LFN 2004. The NHIS is aimed at providing quality healthcare in a cost effective
way and patients are offered a variety of health care options.

CONCLUSION
I am not unmindful of the
fact that we have a lot of progress to make as a nation in providing an
enabling environment with modern and innovative equipment to aid medical
practitioners in carrying out their duties. I am also not oblivious to the fact
that Doctors who are employed in Government hospitals constantly have to demand
adequate remuneration.

Notwithstanding, patients should remember that they
have rights, the right to ask questions, the right to get second opinions,
right to choose their preferred treatment options and a voice to complain.

We may not be able to
solve all of our challenges arising from medical negligence, however we can
collectively make efforts to make it bearable.
 
 By- Motunrayo Olaleye
 Legal Counsel at B. Ayorinde & Co. 

  Photo Credit – www.medical-negligence-dublin.com